CITATION: Law Society of New South Wales v Carver [2003] NSWADT 158 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the Law Society of New Souoth Wales RESPONDENT Peter Gearge Star Carver FILE NUMBER: 8 of 1994; 29 of 1998 HEARING DATES: 08/05/2003 SUBMISSIONS CLOSED: 05/08/2003 DATE OF DECISION: 06/27/2003 BEFORE: Nader J QC - ADCJ (Deputy President); Mattila J - Judicial Member; Klika D - Member APPLICATION: Jurisdiction MATTER FOR DECISION: Principal matter Industrial Arbitration Act 1940 LEGISLATION CITED : Legal Profession Act 1987 Supreme Court Act 1970 Barwick v The Law Society of New South Wales & Ors (2000) 168 ALR 236 Murray v Legal Services Commissioner & Anor (1999) 46 NSWLR 224 Law Society of New South Wales v M [2000] NSWADT 137 CASES CITED: Carver v Law Society of New South Wales (1998) 43 NSWLR 71 Barwick v The Law Society of New South Wales (2000) 169 ALR 236 Dechnicz v Law Society of New South Wales, (2002) NSWADT 198 Pezet v Pezet (1946) 47 SR(NSW) 45 Coffee & Anor v Scanlon (1972) 26 NSWLR 485 APPLICANT REPRESENTATION: R Bellamy, barrister RESPONDENT P Brereton SC, barrister ORDERS: 1. That the proceedings be dismissed.; 2. No order as to costs of or incidental to these proceedings.; 3. Exhibits held by the Tribunal will be returned to the tendering parties. 1 These proceedings comprise two applications: one by the Informant, the Council of the Law Society of New South Wales, and the other by the Respondent, Peter George Star Carver. 2 The Informant's application dated 17 January 2003 seeks the following orders, namely: A declaration that Informations 8 of 1994 (including the further grounds of complaint filed on 23 April 1996 and 7 June 1996) and 29 of 1998 are defective for reasons given in Barwick v The Law Society of New South Wales & Ors (2000) 168 ALR 236; Murray v Legal Services Commissioner & Anor (1999) 46 NSWLR 224 and Law Society of New South Wales v M [2000] NSWADT 137; A declaration that, as a consequence, the Administrative Decisions Tribunal ("the Tribunal") has no jurisdiction to conduct a hearing into the allegations raised by Informations 8 of 1994 (including the further grounds of complaint filed on 23 April 1996 and 7 June 1996) and 29 of 1998; That all exhibits held by the Tribunal be returned to the tendering parties. 3 The Respondent, by application made 24 February 2003, asks for orders: That proceedings no. 8 of 1994 and 29 of 1998 be dismissed or alternatively permanently stayed; That all exhibits held by the Tribunal be returned; That the Informant pay the Respondent's costs of the proceedings, including the costs incurred by the Respondent of the original hearing on 12 & 13 February 1996, 1 & 2 April 1996, 26 & 27 August 1996, and procedural applications on 17 & 31 May 1996, from the Public Purpose Fund pursuant to the Legal Profession Act 1987, section 171E(2), and of this application. 4 Turning firstly to the issue of costs. The power of the Tribunal to award costs in proceedings under the Legal Profession Act 1987 ("the Act") is found in section 171E of the Act. "171E Award of costs by Tribunal (1) The Tribunal may make orders requiring a legal practitioner whom it has found guilty of unsatisfactory professional conduct or professional misconduct to pay costs (including the costs of the Commissioner, the appropriate Council and the complainant). (2) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the practitioner is not guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may (but only if it considers that special circumstances so warrant) order payment from the Public Purpose Fund to the practitioner of the legal practitioner's costs. (3) An order for costs: (a) may be for a specified amount or an unspecified amount, and (b) if for an unspecified amount, may specify the basis on which the amount is to be determined, and (c) may specify the terms on which costs must be paid." 5 There is no other applicable statutory source of power to award costs in cases under part 10 of the Act. 6 For present purposes the factual circumstances will be sufficiently given if we take them from the submissions made on behalf of the Council of the Law Society of New South Wales ("the Informant"). 7 In 1994 the Informant filed an Information against the Respondent in the Legal Services Tribunal, the predecessor of the Legal Services Division of the Tribunal. Further material supplementing the Information was filed in 1996. 8 On 23 December 1996, following a full hearing of the Information, the Legal Services Tribunal found against the Respondent and ordered that his name be removed form the roll of legal practitioners. 9 On 13 February 1998, an appeal by the Respondent was allowed: Carver v Law Society of New South Wales (1998) 43 NSWLR 71. 10 The Informant thereupon filed a further Information in the Tribunal alleging the conduct that would have been the subject of Tribunal proceedings but for the intervention of the decision of the High Court of Australia in Barwick v The Law Society of New South Wales (2000) 169 ALR 236. Following Barwick the hearing dates for the Information were vacated. 11 It is clear that the Information was defective by reason of the absence of a number of conditions precedent to the validity of the Information. Those defects have been fully enunciated elsewhere and reference may be made to Barwick and to Murray v Legal Services Commissioner (1999) 46 NSWLR 224. 12 The Tribunal in Dechnicz v Law Society of New South Wales, (2002) NSWADT 198, said: "25 It has been the practice of this Tribunal, since the High Court's decision in Barwick , to make no orders in proceedings which are without jurisdiction, but to note the file accordingly. The solicitor appearing for the Applicant acknowledged this practice, but indicated that his client sought a different result by this Application." 13 In that case the Tribunal noted, for administrative purposes only, that the proceeding were a nullity and that it had no power to make any orders of any kind upon that Information. 14 It is upon that case, and others where observations to a similar effect have been made, that the Informant relies in seeking the "orders/directions" (if that is what they would be) in its application. 15 It is convenient here to turn to the submissions of Senior Counsel, Mr Brereton who represented the Respondent in these proceedings. Mr Brereton submitted that it may be necessary, in a particular case in which it is asked to exercise jurisdiction, for the Tribunal to inquire into the question whether it has jurisdiction. That is clearly correct. 16 In some cases (such as the case at bar) the nature of the proceedings is unquestionably within the jurisdiction of the Tribunal. It would be otherwise if (to give an absurdly unlikely example) an informant were to seek a decree of dissolution of marriage in this Tribunal. That is not the case here. 17 In cases where the Tribunal has jurisdiction to entertain the kind of case presented to it, the Tribunal may nevertheless lack jurisdiction because of a latent defect in the proceedings: a defect not apparent on the face of the record (such as what happened here). In such a case, unless an objection to jurisdiction were taken, there may be no call for the Tribunal to investigate whether such a defect exists, especially if the respondent party is represented by a legal practitioner. But, where objection is taken to jurisdiction on the ground that some latent defect exists (such as the non-existence of a condition precedent: as here) the Tribunal must inquire to ascertain whether it has jurisdiction to hear and determine the matter. 18 Mr Brereton submitted that the Tribunal has jurisdiction in every case to inquire into whether it has jurisdiction to entertain the substantive case. Put another way, there is a sense in which the Tribunal has some jurisdiction in every case, namely, jurisdiction to determine whether it can hear the case. We agree with that submission. 19 The respondent relied upon Pezet v Pezet (1946) 47 SR(NSW) 45, where it was said by the NSW Supreme Court, sitting in Banc, and constituted by Jordan CJ, Maxwell and Bonney JJ, that the fact that a court has no jurisdiction to determine a matter does not prevent it from dealing with the costs of the proceedings in which the absence of jurisdiction is established. 20 We accept that a lack of jurisdiction to determine a matter does not itself prevent the Tribunal from awarding costs in the proceedings in which the absence of jurisdiction is established. The critical question is whether there is any provision that enables the Tribunal to award costs of the proceedings. 21 One significant distinction between Pezet and the case at bar is that the Supreme Court is a Superior Court in the strict sense and is given (by the Supreme Court Act, 1970, section 23) "all jurisdiction which may be necessary for the administration of justice in New South Wales." 22 It is unnecessary to reproduce the earlier provisions here, but, for present purposes, at the time of the decision in Pezet, the jurisdiction of the Supreme Court was as unlimited as it is now. 23 The Supreme Court always had inherent or implied jurisdiction to award costs in any case: no statutory authority to do so is needed in any particular case. This Tribunal, as we have already noted, can do only what it is empowered to do by statute, expressly or by clear implication: it has no inherent jurisdiction. It may be thought by many to be unfair that a litigant can be involved in a costly dispute in the Tribunal about jurisdiction in which he is successful and yet be unable to get an order for his costs. The Tribunal cannot make an order for cost merely because it seems to it to be just and fair to do so. Other cases referred to by Mr Brereton were heard in the Supreme Court. The decision to award costs in Coffee & Anor v Scanlon (1972) 26 NSWLR 485, was based on the Supreme Court decisions of the Supreme Court: at pp 487 and 489. But the point of distinction between Coffee and the case at bar is the difference between the provisions empowering the awarding of costs in the Industrial Arbitration Act 1940 and the Legal Profession Act 1987. Section 88F(3) of the Industrial Arbitration Act 1940 is couched in vastly wider terms than those of subsection 171E(2) of the Act. In the final analysis, because the Tribunal does have jurisdiction to investigate its jurisdiction to hear and determine an Information, the lack of power does not flow from lack of jurisdiction but from the terms of subsection 171E(2). 24 These terms are at the heart of the problem. What is the proper construction of subsection 171E(2)? It was argued for the practitioner that the words of subsection 171E(2) – "If … the Tribunal is satisfied that the practitioner is not guilty…" – is the equivalent of – "If the Tribunal is not satisfied that the practitioner is guilty." It is really a contention that the draftsman either inadvertently or ill advisedly put the word "not" in the wrong place in the sentence: before the word "guilty" instead of the word "satisfied". Subsection 171E(2) may be set against the co-relative words of subsection 171C(1) – "If … the Tribunal is satisfied that the practitioner is guilty…". 25 Proceedings for professional misconduct are quasi penal in nature and the Act uses the word "guilty" in relation to findings of the Tribunal. It is argued that it is likely that the Parliament intended to continue that analogy with the criminal law and did not intend any unoccupied middle ground between satisfaction of guilt and satisfaction of non-guilt. That middle ground would be occupied by cases where the Tribunal were neither satisfied of guilt nor satisfied of non-guilt: cases that fail merely because the Bringinshaw standard is not satisfied. 26 The Informant submits that the words, "satisfied that the practitioner is not guilty", have a plain meaning and that the Tribunal should give them that meaning. 27 What did the Parliament intend? There are arguments in favour of each possible position. 28 The words – "satisfied that the practitioner is not guilty" – are plain English words which, if given their plain meaning, do not favour the Respondent. They admit of cases where the evidence happens, not merely to fail to satisfy the Tribunal of a practitioner's guilt, but also to fail to satisfy it that he is not guilty: literally, innocent. A policy reason that may support that construction is that costs may be intended to be awarded sparingly. Where a practitioner is found to be guilty, the Act empowers the Tribunal to award costs. It is arguable that the Parliament intended that, in respect of practitioners who are not found guilty, the power to award costs should only apply to that group of such persons who, to the satisfaction of the Tribunal, are innocent of the allegations. 29 The alternative position is that section 171E is an example of faulty or infelicitous drafting and that the draftsman, perhaps distracted by an attempt to introduce some symmetry into the words of sections 171C and 171E, placed the "not" in the wrong place. 30 It was submitted that the words of section 171E should not be construed as introducing the idea that proceedings in which the prosecutor carries the burden of proof are a suitable vehicle for proving innocence. We think that proceedings of an accusatorial nature are not appropriate for establishing innocence. The criminal law illustrates that fact. 31 It is strongly in favour of the Respondent's submission on this point that the language of the Act adopts the language of the criminal law: ideas such as 'guilt'; 'satisfaction of guilt'; that part 10 proceedings are similar in important respects to criminal proceedings; that the criminal law knows no such thing as 'satisfaction of non-guilt'; and that, by a mere movement of the word "not" in the sentence, ready sense is made of an almost unintelligible provision. 32 We have therefore opted for the construction of the Act sought by the Respondent in that respect. We think that the expression: "is satisfied that the practitioner is not guilty" is intended to be construed as if it were: "is not satisfied that the practitioner is guilty". 33 If that conclusion is correct it may have a bearing on whether the Tribunal may award costs to successful respondents in future cases, but it does not resolve the problems of this case. 34 The insurmountable obstacle faced by the Respondent is found in the introductory words of section 171E(2), namely, "after it has completed a hearing" when taken with the words "…the Tribunal is satisfied …". 35 It was submitted by Mr Robert Bellamy of counsel for the Informant that the precondition for the making of an order for costs imposed by those words is a valid hearing upon which an allegation of misconduct contained in the Information can be determined. Mr Bellamy relied upon statements in Dechnicz: "23 The "hearing" required by section 171E(2) is not a partial hearing, as purportedly undertaken by the differently constituted panel in 1997. The section contemplates a completed hearing which produces a finding that the allegations of misconduct contained in the Information have not been established. In this case, the Tribunal made no findings, one way or the other. 24 Further, the "hearing" must be in the course of proceedings validly instituted in accordance with the Legal Profession Act, 1987. A purported hearing in proceedings without jurisdiction, is simply a nullity." 36 The same words are used to introduce sections 171C and 171D. In both of those sections they preface a situation in which the Tribunal is satisfied of the guilt of the practitioner. Needless to say, the Tribunal could not be satisfied of a practitioner's guilt unless it had completed a hearing in the sense Mr Bellamy contends for. A fortiori , a finding of guilt could not be made after a hearing which was void for want of jurisdiction. The logic of Mr Bellamy's argument is inescapable. 37 There could not be a finding one way or another on the issue of guilt until the completion of a valid hearing. That does not mean that a hearing might not be abandoned by an Informant in its course with insufficient evidence for a finding of guilt. In such a case the hearing may be regarded as completed and, if jurisdictionally valid, would result in the Tribunal not being satisfied of the guilt of the practitioner. We think that such a hearing would be a "completed hearing." 38 A hearing that is aborted for some reason, or invalid for want of jurisdiction cannot result in any finding, either way, as to the guilt of the practitioner. This is such a case. By reason of the invalidity of the proceedings, there has been no hearing, completed or otherwise, that could lead to a finding about the guilt of the Respondent. The analogy with the criminal law is with a trial that aborts in its course, and where the trial judge remands the accused for a new trial on a future date. The mere fact that the proceedings may not have resulted in a conviction does not mean that the accused was found to be not guilty. 39 We see no reason to give the words "completed a hearing" a different meaning where they occur in section 171E from their meaning in sections 171C or section 171D. 40 The power to make an order dismissing the proceedings is also governed by statute. The only provision of which we are aware that expressly enables the Tribunal to dismiss proceedings of this kind are contained in subsection 73(5) of the Administrative Decisions Tribunal Act 1997: "(5) The Tribunal: … (g) may dismiss at any stage any proceedings before it if the applicant withdraws the application to which the proceedings relate, and (h) may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance." 41 The applicant has not withdrawn the proceedings. Having decided the issue of jurisdiction – an issue that the Tribunal had a duty, and therefore jurisdiction, to determine – we have concluded on the authorities that there is no jurisdiction to hear the substantive case. We think, without the benefit of argument by counsel, that, by reason of the want of jurisdiction, the proceedings were misconceived. ORDERS 1. That the proceedings be dismissed. 2. No order as to costs of or incidental to these proceedings. 3. Exhibits held by the Tribunal will be returned to the tendering parties. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.