CITATION: New South Wales Bar Association v 'LI' [2005] NSWADT 15 DIVISION: Legal Services Division PARTIES: 'LI' FILE NUMBER: 032027 HEARING DATES: 13/09/2004, 15/10/2004 SUBMISSIONS CLOSED: 10/15/2004 DATE OF DECISION: 02/04/2005 BEFORE: Robberds LP QC- Judicial Member; Norton S SC - Judicial Member; O'Neill A - Non Judicial Member APPLICATION: Order for dismissal MATTER FOR DECISION: Preliminary matter Administrative Decisions Legislation Amendment Act 1997 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987 Finance Facilities Pty Limited v Federal Commissioner of Taxation (1971) 127 CLR 106 CASES CITED: New South Wales Bar Association v de Robbillard [2004] NWADT 45 Samad v District Court of New South Wales (2002) 209 CLR 140 Ward v Williams (1954-55) 92 CLR 496 APPLICANT R Macdougal, solicitor (13 September 2004) REPRESENTATION: C Adamson, SC (15 October 2004) RESPONDENT R Williams SC (13 September 2004) C Wod, solicitor (15 October 2004) ORDERS: The matter is listed for directions on Friday, 18 March 2005 at 9.30a.m. The parties should attempt to agree upon those directions prior to that date. REASONS FOR DECISION 1 On 20 November 2003, the Council of the New South Wales Bar Association (the Bar Association) filed an information in which it was claimed that the respondent, while practising as a barrister, was guilty of unsatisfactory professional conduct. In due course the proceedings were listed for hearing on 13 September 2004. 2 On 1 September 2004 the solicitor for the Bar Association filed a written submission giving notice that on 13 September the Bar Association would make an application to the Tribunal that the information be withdrawn, the proceedings be dismissed and that there be no order as to costs. The submission stated that it was anticipated that the application would be made with the consent of the respondent. 3 On 13 September the Tribunal was asked to adjourn until 2pm because the parties were endeavouring to reach an agreement. The Tribunal acceded to that request and upon resumption of the proceedings that afternoon the solicitor for the Bar Association informed the Tribunal that her instructions were that the Bar Association wished to withdraw the information and to apply for the proceedings to be dismissed by consent. The parties had apparently reached agreement because the solicitor informed the Tribunal that the barrister would consent to a reprimand to be administered by the then current President of the Bar Association and would tender an apology (the terms of which had been agreed between the parties) to the complainants. 4 After considerable argument and discussion and a short adjournment, the solicitor for the Bar Association sought the adjournment of her application. The Tribunal acceded to that request, gave directions for further written submissions and adjourned the proceedings to 15 October 2004. 5 On that day counsel for the Bar Association relied upon the written submissions filed on 1 September, some further written submissions filed on 22 September 2004 and made oral submissions to the Tribunal. The solicitor for the respondent filed a one sentence submission supporting the submissions of the Bar Association filed on 22 September. 6 In the submissions filed on 1 September 2004 it was stated: Since the filing of the Information the Bar Association has reconsidered the matter and has decided that the appropriate way of dealing with the Respondent's conduct is that pursuant to sec 155 (3) (b) of the LP Act he be reprimanded by the President of the Council of the New South Wales Bar Association and that he tender a written apology to the complainants. 7 Those submissions set out an historical background of the discipline of lawyers in New South Wales and concluded by submitting that: the Tribunal, does not have the power to conduct an enquiry into or make a decision about a legal practitioner's conduct beyond the limitations of the statutory regime. It therefore follows that if the Informant withdraws its application the proceedings must be dismissed. 8 The statutory regime referred to was the Administrative Decisions Tribunal Act 1997 (ADT Act). 9 The written submissions of the Bar Association filed on 22 September 2004 can be summarised as follows: a) the Bar Association was entitled to withdraw the information as contemplated by subsection 73 (5) (g) of the ADT Act; b) the withdrawal by the Bar Association of an information confirms at least a power, and may confer an obligation, on the Tribunal to dismiss the proceedings (subsection 73 (5) (g) of the ADT Act); c) the ADT Act, when properly construed in the light of the Legal Profession Act 1987, imposes an obligation on the Tribunal to dismiss the proceedings if an information is withdrawn by the Bar Association. Alternatively, in the circumstances of this case, the proceedings ought to be dismissed; d) cases such as Finance Facilities Pty Limited v Federal Commissioner of Taxation (1971) 127 CLR 106 state how the word "may" is to be interpreted in legislation. The particular context of words and circumstance may make the word "may" not only an empowering word but indicate circumstances in which the power is to be exercised - so that in those events the "may" becomes a "must" (see Finance Facilities at page 134, Windeyer J).; e) when the Bar Association decides to withdraw an information, the Tribunal has no residual powers to prosecute the information of its own motion. Subsection 167 (2) of the Legal Profession Act 1987, (the L P Act), which provides that the Tribunal is to conduct a hearing into each allegation particularised in the information, cannot be read as conferring a power on the Tribunal to do so in the absence, and against the wishes, of the Bar Association; f) in these circumstances the prima facie presumption that the word "may" in subsection 73 (5) (g) of the ADT Act connotes a power to dismiss the information, rather than an obligation to do so has been displaced and the Tribunal must dismiss the proceedings if the Bar Association withdraws the information; g) alternatively the Tribunal ought to be guided by the policy behind Part 10 of the LP Act namely the protection of the public. It was submitted that the integrity and the reputation of the legal profession was part of that purpose; h) the Tribunal has no power to require the respondent to apologise. The Bar Association regards an apology when coupled with a private reprimand as better serving the purposes of the LP Act than a full hearing. The damage to the reputation of the profession done by the respondent's offensive behaviour, if proved, is more readily undone, or ameliorated, by the voluntary tendering of an apology. For those reasons the Tribunal should dismiss the proceedings; and i) the complainants' rights to apply for a review of certain decisions of the Bar Association do not extend beyond the circumstances set out in the LP Act. The Bar Association is the custodian of the public interest in initiating and conducting disciplinary proceedings. 10 During the hearing on 15 October the matters in the written submissions were only briefly referred to. For the most part the discussion between counsel for the Bar Association and the Tribunal centred on the agreement reached between the Bar Association and the respondent; the fact that the Tribunal was not aware of the reasons why the agreement was entered into nor of the full details of the agreement; the fact that the complainants were not aware that the Bar Association was proposing to withdraw the information and was seeking an order that the proceedings be dismissed; and the fact that if the course proposed by the Bar Association is followed, the complainants will not have a right to review the decision made by the Bar Association to adopt that course. 11 During the hearing on 15 October counsel for the Bar Association informed the Tribunal that the agreement made between the Bar Association and the respondent is in writing and is confidential. The salient points of the agreement are that if the application is withdrawn and if the Tribunal dismisses the proceedings, the respondent will tender an apology to the complainants and consent to a private reprimand by the President of the Bar Association. However if there is no dismissal there will be no apology or reprimand. 12 Counsel for the Bar Association referred to the "somewhat special circumstances of this case" and the solicitor for the respondent referred to special circumstances. The Tribunal was not informed what the special circumstances were except that the solicitor for the respondent stated that the respondent had been hospitalised, was a man of senior years and had not held a brief for six months. The question that requires determination 13 The Tribunal is of the view that the critical question to be determined is whether subsection 73 (5) (g) enables the Bar Association to withdraw the information. 14 The Tribunal does not see the answers to the questions: a) whether subsection 167 (2) of the LP Act confers a power on the Tribunal to conduct a hearing in the absence and against the wishes of the informant; nor b) whether the word "may" in subsection 73 (5) (g) of the ADT Act has become a "must", as determinative of the issue which the Tribunal is presently considering. History of the legislation 15 The ADT Act is Act No 76 of 1997. The Administrative Decisions Legislation Amendment Act 1997 (ADLA Act) is Act No 77 of 1997. Both Acts commenced on 6 October 1998. 16 Prior to the commencement of the ADT Act, the Legal Profession Act 1987 (LP Act) made specific provision in section 155 as to how a Council or the Commissioner was obliged to or could act after an investigation into a complaint had been completed. Section 158 of the LP Act enabled a complainant to apply to the Commissioner for a review of certain decisions made by a Council. Those two sections relevantly provided as follows: 155 (1) After a Council or the Commissioner has completed an investigation into a complaint against a legal practitioner or interstate legal practitioner, the complaint is to be dealt with in accordance with this section. (2) The Council or the Commissioner must institute proceedings in the Tribunal with respect to the complaint against the legal practitioner or interstate legal practitioner if satisfied that there is a reasonable likelihood that the legal practitioner or interstate legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct. (3) However, if the Council or the Commissioner is satisfied that there is a reasonable likelihood that the legal practitioner or interstate legal practitioner will be found guilty by the Tribunal of unsatisfactory conduct (but not professional misconduct) the Council or the Commissioner may instead: a) reprimand the legal practitioner or interstate legal practitioner if the legal practitioner or interstate legal practitioner consents to the reprimand, or b) dismiss the complaint if satisfied that the legal practitioner or interstate legal practitioner is generally competent and diligent and that no other material complaints have been made against the legal practitioner or interstate legal practitioner. (4) The Council or the Commissioner is to dismiss the complaint against the legal practitioner or interstate legal practitioner if satisfied that there is no reasonable likelihood that the legal practitioner or interstate legal practitioner will be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct. (5) If a Council or the Commissioner decides to dismiss a complaint or to reprimand a legal practitioner or interstate legal practitioner under subsection (3) and the complainant requested a compensation order in connection with the complaint, the Council or the Commissioner may require the payment of compensation by the legal practitioner or interstate legal practitioner or the successful mediation of the consumer dispute before the decision takes effect. 158 (1) A complainant may apply to the Commissioner for a review of any of the following decisions made by a Council: a) a decision to dismiss a complaint made by the complainant, b) a decision to reprimand the legal practitioner or interstate legal practitioner because of the complaint, c) a decision to omit, from the allegations particularised in an information laid before the Tribunal in respect of a complaint, matter that was originally part of the complaint made to the Council. ... 17 Those sections remained in force without amendment after the commencement of the ADT Act and the ADLA Act. 18 The ADLA Act omitted Division 7 from Part 10 of the LP Act, omitted the heading of Division 8 of Part 10 and inserted instead "Division 7 Applications to the Tribunal." The result was that the old Division 8 became Division 7 but with other amendments also made by the ADLA Act to the new Division 7. 19 In particular section 168 was omitted from the LP Act and a new section 168 inserted. 20 The old section 168 was in the following terms: (1) For the purpose of conducting a hearing into a question of professional misconduct, the Tribunal is to observe the rules of law governing the admission of evidence. (2) For the purpose of conducting any other hearing, the Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in such manner as it thinks fit. 21 The new section 168 was in the following terms: (2) For the purpose of conducting a hearing into a question of professional misconduct, the Tribunal is to observe the rules of law governing the admission of evidence despite any contrary provisions of section 73 (Procedure of the Tribunal generally) of the Administrative Decisions Tribunal Act 1997. (3) In relation to the conduct of any other hearing of a matter allocated to the Legal Services Division of the Tribunal by the Administrative Decisions Tribunal Act 1997, section 73 of that Act applies to the determination of that matter. 22 Section 73 appeared in Part 2 of the ADT Act. The heading for that part was "Other procedural matters." 23 Subsection 73 (2) provided: The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. 24 Subsection 73 (5) made provision for matters of procedure for proceedings before the Tribunal. Subsection 73 (5) (g) was in the following terms: The Tribunal: a) may dismiss at any stage any proceedings before it if the applicant withdraws the application to which the proceedings relate ... 25 Section 73 has not been amended. 26 The Administrative Decisions Tribunal has two distinct areas of jurisdiction. The first is jurisdiction to review, on appeal, decisions made by public bodies or officials. The second is original decisions in which jurisdiction has been transferred to the Tribunal. 27 One can well understand how subsection 73 (5) (g) would apply to that first area of jurisdiction. The applicant who has sought review in the Tribunal is doing so because he or she is dissatisfied with the decision. The application is not made under any statutory duty to do so. 28 However in the second area of jurisdiction and in particular under the LP Act, applications come before the Tribunal because the relevant Council or the Commissioner is acting pursuant to the statutory obligation imposed by subsection 155 (2) of the L P Act. That statutory obligation only arises after the completion of an investigation of a complaint against the legal practitioner. If a Council has carried out the investigation and has decided not to institute proceedings in the Tribunal, the complainant may apply to the Commissioner for a review of the decision made by the Council. 29 If subsection 73 (5) (g) is to be construed as giving to a Council a right to withdraw the application (or to be construed as acknowledging that such a right exists), a situation could be brought about whereby: g) the complaint will not have been dismissed by a Council pursuant to subsection 155 (3) (b) or subsection 155 (4) of the LP Act ; h) the legal practitioner will not have been reprimanded by a Council pursuant to subsection 155 (3) (a) of the LP Act; and i) the complaint will not have been adjudicated upon by the Tribunal. The end result would be that although a complainant has made a complaint it will not have been dealt with as contemplated by the LP Act and the complainant will not be able to apply to the Commissioner for a review pursuant to section 158 of the LP Act. 30 Consumer redress is an express object of Part 10 of the LP Act. That Part comprises sections 123 - 171U. Subsection 123 (a) states: The general objects of this Part are: (a) to redress the consumer complaints of users of legal services; That subsection was not amended by the ADT Act nor the ADLA Act. 31 The right given to a complainant to apply to the Commissioner for a review of decisions made by a Council is an integral part of Part 10 of the LP Act and the question must be asked: was it the intention of the legislature in passing subsection 73 (5) (g) of the ADT Act, to allow the above end result to be brought about. 32 There is nothing in the second reading speech to indicate this was the intention of Parliament (see Hansard, Legislative Assembly, 29 May 1997, page 9602). At page 9606 Mr Whelan, the Minister for Police, said: "When making original decisions the procedure of the ADT will be governed largely by the principal Act. This will permit, for example, proceedings before the legal services division to be governed by rules of evidence and for representative actions to be brought before the equal opportunity division." 33 The LP Act prior to the commencement of the ADT Act and the ADLA Act did not contain any specific provision enabling an information to be withdrawn by a Council or the Commissioner. 34 Subsection 167 (2) of the LP Act provides that: The Tribunal is to conduct a hearing into each allegation particularised in the information. 35 When one takes into account firstly subsection 167 (2) and secondly sections 155 and 158 of the LP Act which result in a complainant having a right to apply to the Commissioner for a review of decisions made by a Council, the Tribunal is of the view that subsection 73 (5) (g) should be construed as not applying to an information filed in the Tribunal pursuant to subsection 155 (2) of the L P Act. 36 The Tribunal is of the view that the proper construction to give to section 168 of the LP Act is that subsection (1) requires the Tribunal to observe the rules of law governing the admission of evidence when conducting a hearing into a question of professional misconduct and subsection (2) means no more than that in the conduct of any other hearing allocated to the Legal Services Division of the Tribunal, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice, by reason of the operation of subsection 73 (2) of the ADT Act. In other words the Tribunal is of the view that section 168 of the LP Act only makes provision as to the applicable law concerning the admission of evidence and the section does not mean that subsection 73 (5) (g) of the ADT Act applies to proceedings in the legal services division of the Tribunal. 37 The Tribunal is of the view that the objects of Part 10 of the LP Act, section 155, subsection 155A (3) and subsection 167 (2) of that Act mean that: g) the LP Act does not give a Council a right to withdraw an information after proceedings have been instituted in the Tribunal; and h) a Council does not otherwise have a right to withdraw such an information. 38 Accordingly the Tribunal is of the view that the Bar Association is not entitled to withdraw the information. 39 This does not mean that at a hearing before the Tribunal, the Bar Association is obliged to seek the orders sought in an information where, because of a change in circumstances or the discovery of additional evidence, the allegations particularised in the information cannot be proved. In such situations the Bar Association would no doubt bring those circumstances or evidence to the attention of the Tribunal at the hearing of the information and the Tribunal would make its determination accordingly. 40 In coming to the conclusion that the Bar Association is not entitled to withdraw the information, the Tribunal has not overlooked New South Wales Bar Association v de Robillard [2004] NSWADT 45 where Nader ADCJ referred to the possibility of leave being granted by the Tribunal to the Bar Association to discontinue proceedings brought in the Tribunal. However the question whether proceedings commenced by a Council under the LP Act can be discontinued was not an issue in those proceedings. Furthermore it appears that his Honour may not have had the benefit of a dialectic of opposing contentions on the question (see paras 43 - 47). Public interest 41 During the hearing on 15 October, counsel for the Bar Association in effect said the Bar Association considered the result that would be achieved by the carrying out of the agreement reached between the Bar Association and the respondent was in the public interest. It was also submitted by the solicitor for the respondent that the public interest was best served by in effect the carrying out of the agreement. 42 If the Bar Association has satisfied itself that it is in the public interest to dismiss the complaint (or if it in the future considers that question and is so satisfied) section 155A of the LP Act gives the Bar Association the right to dismiss the complaint. However in that event the complainants would have the right to apply to the Commissioner for a review of that decision. The agreement between the Bar Association and the respondent 43 Before concluding these reasons, it should be noted that the proposed reprimand of the respondent by the President of the Bar Association would not be a reprimand given pursuant to subsection 155 (3) of the L P Act. Such a reprimand can only be given where proceedings have not been instituted in the Tribunal pursuant to subsection 155 (2). This was conceded in argument during the hearing on 13 October. Subsection 73 (5) (g) - may 44 Having come to the above conclusion, it is unnecessary for the Tribunal to deal with the submissions that subsection 73 (5) (g) of the ADT Act should be read so that the word "may" means "must". However the Tribunal is not persuaded that that is the correct construction to be adopted. 45 Finance Facilities was a case where the statute conferred a right or entitlement (see Samad v District Court of New South Wales (2002) 209 CLR 140 at para 36, Gleeson CJ and McHugh J). It was a case where the word "may" conferred a power to be exercised not a discretion to be weighed (Samad at para 67, Gaudron, Gummow and Callinan JJ). 46 It lies upon the Bar Association to show that the word "may" conveys a command as a matter of construction of the statute taken as a whole (Samad at para 66). 47 In Ward v Williams (1954 - 55) 92 CLR 496 at 506, the High Court pointed out that there is a long history of legislative intervention in New South Wales to restrain the development of the notion that permissive words may have a compulsive effect. Section 9 of the Interpretation Act 1987 is the current expression of that legislative intervention and it relevantly provides that except in so far as the contrary intention appears in an Act, the word "may", if used to confer a power, indicates that the power may be exercised or not, at discretion. (See Samad at para 33). 48 The Tribunal has concluded that the ADT Act does not give a right to a Council to withdraw an information that has been laid pursuant to the obligation set out in subsection 155 (2) of the LP Act. In those circumstances the Tribunal is of the view that if subsection 73 (5) (g) were applicable to the proceedings, the word "may" should not be read as "must". 49 During the hearing on 13 October the Tribunal indicated that because the full details of the agreement reached between the Bar Association and the respondent and the reasons why that agreement was reached, have not been made known to the Tribunal, the Tribunal is in a situation where it is unable to express a view as to whether the agreement is appropriate. 50 Accordingly if subsection 73 (5) (g) of the ADT Act were applicable, the Tribunal would not exercise its discretion to dismiss the proceedings. It should also be noted in this regard that counsel for the Bar Association stated that if the Tribunal was not minded to dismiss the proceedings then the Bar Association would continue them. Counsel for the Bar Association did not state that the Bar Association withdrew the information. Further directions 51 After the parties have had an opportunity to consider these reasons, it would appear appropriate to list the proceedings for further directions. The matter is listed for directions on Friday, 18 March 2005 at 9.30a.m. The parties should attempt to agree upon those directions prior to that date. 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.