Council of the New South Wales Bar Association -v- Tedeschi [1999] NSWADT 92

Pending Appeal :

CITATION: Council of the New South Wales Bar Association -v- Tedeschi [1999] NSWADT 92

DIVISION: Legal Services

APPLICANT: Council of the New South Wales Bar Association

RESPONDENT: Mark Alfred Guido Tedeschi QC

FILE NUMBER: 9306

HEARING DATES: 09/01/1999

SUBMISSIONS CLOSED: 09/01/1999

DATE OF DECISION: 25 November 1999

L P Robberds QC Presiding Judicial Member BEFORE: A C Bennett SC - Judicial Member K Elliott - Member

PRIMARY LEGISLATION: Legal Profession Act 1987

APPLICATION: Professional misconduct - barrister -

MATTER FOR DECISION: Application as to jurisdiction of the Tribunal

Applicant: P R Garling SC & P R Boulton of counsel instructed by Colin Biggers & Paisley REPRESENTATION: Respondent: C A Porter QC & J E Robson of counsel instructed by Makinson & d'Apice

ORDERS: 1. The Tribunal has no jurisdiction.

1 On 17 March 1993 the Council of the New South Wales Bar Association (the Council) filed in the Legal Profession Disciplinary Tribunal, a complaint, the first paragraph of which stated that the Council "refers to the Legal Profession Disciplinary Tribunal a complaint by the Legal Aid Commission against Mark Alfred Guido Tedeschi QC." 2 The complaint had not been heard or determined as at 1 July 1994 nor had a hearing of the complaint commenced. On that date the Legal Profession Disciplinary Tribunal was replaced by the Legal Services Tribunal by reason of the operation of the Legal Profession Reform Act 1993. 3 As at 6 October 1998 the complaint had not been heard or determined by the Legal Services Tribunal. On that date the Legal Services Tribunal was abolished (see section 144 and schedule 5 clause 6 of the Administrative Decisions Tribunal Act 1987 (the Act)). 4 On 8 June 1999 an application was filed in this Tribunal on behalf of Mr Tedeschi seeking the determination of the Tribunal concerning its jurisdiction 'in the light of the document entitled "Submission re Jurisdiction" filed herein'. 5 In that document it was submitted that clause [31] of the Legal Profession Regulation 1994 denied jurisdiction to the Legal Services Tribunal to hear the complaint and the decision of the Court of Appeal in The Council of the Law Society of NSW v Nutt and anor (1996) 1 LPDR 23 was cited as authority. The document also contained a submission that 'abolished body' in schedule 5 clause 14 of the Act meant the Legal Services Tribunal, not the Legal Profession Disciplinary Tribunal. The document concluded that this Tribunal does not have any jurisdiction to hear the complaint because the Act provides no basis for jurisdiction. 6 In its reply as to jurisdiction, the Council stated that schedule 5 clause 14 of the Act applied to the complaint "as the current proceedings were pending before the Legal Services Tribunal but that tribunal had 'not commenced to hear' same." Accordingly it was said that under clause 14(1) schedule 5, the proceedings are taken to have been duly commenced under the Act. Relevant legislative history 7 Pursuant to the Legal Profession Act 1987, the Legal Profession Regulation 1994 was made. Part 9 of that Regulation contained savings and transitional provisions and Division 2 of that Part contained a number of clauses three of which were in the following terms: Division 2 - Complaints and appeals Complaints made under former Part 10 and not yet subject to proceedings 30. (1) This clause and clause 31 apply in respect of a complaint made under former Part 10 of the Act. (2) If a complaint made before 1 July 1994 has not, before that date, been the subject of proceedings before the Board or the former Tribunal, the complaint is to be dealt with as if it has been made under new Part 10 of the Act. A matter that has been referred under former Part 10 of the Act to the former Board or the former Tribunal by a Council, but has not, by 1 July 1994, been the subject of proceedings before the former Board or former Tribunal, is taken to be a matter referred to the new Tribunal under new Part 10 of the Act. (3) If a complaint has been made to a Council (or is the subject of a notice given to a Council by the former Review Panel under former section 140 (2) of the Act) before 1 July 1994, but the Council has made no decision in response to the complaint or notice, as the case may be, before that day, the complaint is to be dealt with by the Council as if it had been made under new Part 10 of the Act. (4) Anything done under former Part 10 of the Act in respect of a complaint to which this clause applies is taken to have been done under new Part 10 of the Act.