Reported Decision : 64 NSWLR 603 New South Wales Court of Appeal CITATION: Council of the New South Wales Bar Associaton v LI [2005] NSWCA 415 HEARING DATE(S): 11 November 2005 JUDGMENT DATE: 28 November 2005 JUDGMENT OF: Spigelman CJ at 1; Mason P at 39; Brownie AJA at 40 DECISION: Appeal dismissed. CATCHWORDS: LEGAL PRACTITIONERS – unsatisfactory professional conduct - duty of Bar Council to institute and maintain proceedings under Legal Profession Act - Right to withdraw an Information – ability to administer a private reprimand - STATUTES - proper interpretation of s73(5)(g) of Administrative Decisions Tribunal Act and s155 Legal Profession Act. Administrative Decisions Legislation Amendment Act 1997 (NSW) Administrative Decisions Tribunal Act 1997 (NSW) LEGISLATION CITED: Interpretation Act 1987 (NSW) Legal Profession Act 1987 (NSW) The Council of the New South Wales Bar Association (Appellant) LI (Respondent) PARTIES: Legal Services Commissioner (Intervening) FILE NUMBER(S): CA 40136 of 2005 C.E Adamson SC (Appellant) P.J Brereton (Appellant) COUNSEL: N.J Beaumont (Intervener) Eakin McCaffery Cox Solicitors (Appellant) McCabe Terrill (Respondent) SOLICITORS: Office of the Legal Services Commissioner (Intervener) LOWER COURT JURISDICTION: Administrative Decisions Tribunal LOWER COURT FILE NUMBER(S): 032027 LOWER COURT JUDICIAL OFFICER: Robberds LP QC, Norton S SC, O'Neill A. - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40136/2005 SPIGELMAN CJ MASON P BROWNIE AJA Monday 28 November 2005 COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION v LI Judgment 1 SPIGELMAN CJ: Pursuant to statutory provisions to which I will refer below the Appellant filed an Information against the Respondent, a barrister, in the Administrative Decisions Tribunal, following a complaint it had received about the barrister's conduct. (S/he is identified in the proceedings by a pseudonym). Subsequently the Appellant came to an arrangement with the Respondent that it would withdraw the Information, but that the President of the Bar Association would administer a reprimand to the barrister and the latter would tender an apology to the complainants. 2 Section 73(5)(g) of the Administrative Decisions Tribunal Act 1997 provides: "73(5) The Tribunal: … (g) may dismiss at any stage any proceedings before it if the applicant withdraws the application to which the proceedings relate …" 3 The Appellant invoked this section before the Administrative Decisions Tribunal and submitted that the Tribunal had no discretion but to dismiss the proceedings upon the withdrawal of the Information. The Tribunal held that, by reason of the provisions of the Legal Profession Act 1987, the Appellant had no right to withdraw an Information before the Tribunal. Alternatively, the Tribunal determined that, if there was such a right to withdraw, the word "may" in s73(5)(g) conferred a discretion upon the Tribunal and, in all the circumstances, it would exercise the discretion against the Appellant and, accordingly, would not dismiss the proceedings. 4 The Appellant appeals from the decision of the Tribunal. 5 The Council of the NSW Bar Association is recognised as a "Council" for purposes of the Legal Profession Act 1987. That Act also creates the office of the Legal Services Commissioner. Part 10 of the Legal Profession Act makes provision for dealing with complaints against and discipline of legal practitioners, including barristers. It confers a range of interconnected functions upon the professional Councils and the Commissioner. 6 Of critical significance for the disposition of these proceedings is s155 of the Legal Profession Act which provides: "155(1) After a Council or the Commissioner has completed an investigation into a complaint against a 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 if satisfied that there is a reasonable likelihood that the 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 will be found guilty by the Tribunal of unsatisfactory professional conduct (but not professional misconduct), the Council or the Commissioner may instead: (a) reprimand the legal practitioner, or (b) dismiss the complaint if satisfied that the legal practitioner is generally competent and diligent and that no other material complaints have been made against the legal practitioner. (4) The Council or the Commissioner is to dismiss the complaint against the legal practitioner if satisfied that there is no reasonable likelihood that the 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 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 the successful mediation of the consumer dispute before the decision takes effect. (6) If a Council or the Commissioner decides to reprimand a legal practitioner under this section and the practitioner does not consent to the reprimand, the practitioner may appeal to the Tribunal against the decision. Section 171N applies to an appeal under this subsection." 7 It is of considerable significance in this case that the Council of the Bar Association reached the state of satisfaction for which s155(2) provides. It never at any stage, on the materials before the Tribunal and before this Court, changed its state of mind in that respect. 8 The Council's position before the Tribunal and in this Court was that its duty under s155(2) to "institute proceedings" was entirely discharged by the fact that that was done. It contended that there was no correlative duty either to maintain proceedings so instituted or, if such proceedings were withdrawn, to reinstitute proceedings pursuant to s155(2). Furthermore, it contended that once the initial act of instituting proceedings had occurred its power to pursue the alternative course under s155(3) – "instead" of instituting proceedings – was unavailable to it and did not revive upon the withdrawal of the proceedings originally instituted. 9 The result of all the Appellant's submissions is that the Appellant can, in its complete discretion, act completely outside the legislative scheme by issuing what was referred to in the proceedings as a "private reprimand", on the undertaking of the barrister to issue an apology to the complainant. The reference to "private reprimand" is intended to distinguish the step proposed to be taken in this case, from the "reprimand" for which s155(3)(a) expressly provides. The action proposed to be taken, in accordance with the agreement between the Appellant and the Respondent, is entirely outside the Act. As a result there would have been a complaint made under the legislative scheme that has neither been dismissed nor otherwise dealt with under the Act. 10 In my opinion the result for which the Appellant contends would defeat the purpose of the legislative scheme, which is directed to ensuring that complaints against legal practitioners made under the Act are dealt with in accordance with Pt 10 and not otherwise. The Part makes detailed provision for the interlocking functions of the Councils, the Commissioner and the Tribunal in a manner intended to be comprehensive. 11 This conclusion arises from the following aspects of the legislative scheme: · One of the general objects of the Part is to redress complaints of users of legal services (s123(a)). · An object of the Part is to give every person the right to make a complaint, to provide information to them about the complaint determination process and to give them a right to seek independent review of decisions of Councils (s124). · Complaints may be made by any person (s134(2)(c)), · Such complaints must be made to the Commissioner (s135(1)). · A complaint may be withdrawn, but not if proceedings have been instituted in the Tribunal (s140(1). · The Commissioner or a Council may reject the withdrawal of a complaint (s140(3)). · Either the Commissioner or the Council on reference by the Commissioner is obliged to investigate a complaint (ss141, 147A and 148). · Detailed provision is made for the conduct of investigations and for the Commissioner to monitor investigations by a Council (Div 5, see esp s149). · A complainant may apply to the Commissioner for a review of decisions made by Council including decisions of dismissal of the complaint or to reprimand the legal practitioner, relevantly under s155(3) (s158(1)). · The Commissioner is empowered to take various steps upon a review of a Council's decision including instituting proceedings in the Tribunal or directing the Council to do so (s160(1)(d)). · Proceedings are instituted in the Tribunal by the laying of an Information and the Tribunal is required to conduct a hearing into each allegation particularised in the Information (s167A). · The Tribunal may, on an application of Council or the Commissioner, vary the Information laid (s167(1)). · Persons other than the informant are entitled to appear at a hearing before the Tribunal and are said to become a party to the hearing, including the Commissioner and the complainant (s169). 12 When s155(1) states that a "complaint is to be dealt with in accordance with the section" it means that the complaint is to be dealt with under the section and not otherwise. 13 The approach to statutory construction adopted by the Appellant involves a narrow literalism of a character that has long been rejected. It is divorced from the contemporary approach to statutory construction which pays particular regard to the purpose of the legislative scheme, both at common law, and as reinforced by the express obligation to promote the purpose or object underlying an Act, required by s33 of the Interpretation Act 1987. No conceivable purpose of the legislative scheme is served by permitting a Council that has laid an information before the Tribunal to withdraw it and fail to thereafter act in accordance with the legislative scheme. 14 Part 10 of the Act requires complaints to be dealt with in accordance with that Part and not otherwise. Important objectives of the legislative scheme would be undermined if the "private reprimand", which the Appellant proposes to impose, was an outcome open to be adopted in dealing with a complaint under the Act. A formal reprimand under s155(3)(a) differs in its incidents from the proposed "private reprimand" in important respects. Specifically, there would be no right on the part of a complainant to request under s155(5) that a compensation order be made. Nor is a complainant entitled to apply to the Commissioner for review of a decision to do no more than issue a reprimand, pursuant to s158(1)(b) of the Act. On such an application the Commissioner is authorised to take a range of steps under s160, including instituting proceedings in the Tribunal or directing the Council to do so. 15 The same conclusion will be reached, irrespective of which of the three alternative situations considered in submissions apply: (i) That there is no right to withdraw an Information. (ii) That there is a right to withdraw, which does not involve the exercise of a discretion on the part of the Tribunal. (ii) That there is a power to withdraw, but it requires the exercise of a discretion by the Tribunal. 16 The position with respect to (i) is clear. The present appeal would have to be dismissed if that were the case. 17 With respect to (ii), where an Information is withdrawn without the need for any intervention by the Tribunal, then the Council finds itself in its original position under s155. It has completed an investigation into a complaint which, pursuant to s155(1), "is to be dealt with in accordance with" s155. Nothing else has happened to the complaint. It has not been dismissed. It has not been upheld. It is still before the Council. On the materials in this case the Council remained in the state of satisfaction for which s155(2) provides. Accordingly, it was under an obligation to institute proceedings in the Tribunal, unless it exercised the power under s155(3), in the case of an allegation of unsatisfactory professional conduct, to proceed in accordance with that section. 18 In the case of the situation identified as (iii), the exercise of a discretion by the Tribunal is required. This, in my opinion, is the preferable interpretation of the statutory scheme. This interpretation provides an appropriate degree of flexibility for the operation of the scheme. In particular it permits speedy resolution of a case in which a professional Council has changed its mind with respect to the state of satisfaction that operates as the trigger in s155(2). 19 The applicability of s73(5)(g) of the ADT Act turns, in part on s168 of the Legal Profession Act which makes express reference to s73 of the ADT Act: "168(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 despite any contrary provisions of section 73 (Procedure of the Tribunal generally) of the Administrative Decisions Tribunal Act 1997 . (2) 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. 20 Subsection 168(2) expressly provides that s73 applies to "the determination" of the Information in this case. In my opinion, s168(2) picks up s73(5)(g) of the ADT Act which states that the Tribunal "may dismiss" proceedings if an applicant withdraws an application, relevantly an Information. 21 It is relevant to set out the whole of s73: "73(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure. (2) 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. (3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. (5) The Tribunal: (a) is to act as quickly as is practicable, and (b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and (d) in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and (e) may require a document to be served outside the State, and (f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and (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. (6) A judicial member may: (a) hold a directions hearing in relation to any proceedings before the Tribunal, or (b) authorise a non-judicial member, the Registrar or a Deputy Registrar to hold a directions hearing in relation to any proceedings before the Tribunal." 22 As can be seen, s73 contains a wide range of procedural powers and obligations which are as pertinent to a hearing of professional conduct cases as they are to other aspects of the Tribunal's jurisdiction. Many, but not all, would be implied or permitted as a matter of law. Nevertheless, their specification is apt as part of a comprehensive statement of the Tribunal's procedure. The full range of these procedural provisions should be applied to the Tribunal's powers under the Legal Profession Act, subject to express words or necessary implication to the contrary. 23 Plainly, s168(1) are such express words with respect to s73(2) and (3). The Tribunal found an implication to the contrary from the legislative history of s168. In its original form s168 was: "168(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." 24 In the present case the Tribunal compared s168 in this form with the current s168 inserted by the Administrative Decisions Legislation Amendment Act 1997. It concluded that, as the original s168(2) was confined to the applicability of the rules of evidence, it should construe the new s168(2) to be limited in the same way. The analysis, focusing only on the words of a specific section, did not have regard to the full legislative context. 25 The original s168, enacted by the Legal Profession Reform Act 1993, applied when the relevant tribunal was a separate body called the Legal Services Tribunal. The Legal Profession Act then made detailed provision for the procedure of that Tribunal in addition to the original s168, including many matters found in s73 of the ADT Act. There was a power in the original s166 for rules of procedure to be determined by a rule committee. 26 In my opinion, the Tribunal erred in approaching the interpretation of the new s168 on the basis that Parliament intended to re-enact, without using such terminology, the effect of a predecessor provision in a different legislative scheme. 27 The Act does attach significance to the action of referring the matter to the Tribunal. 28 Section 140, which deals with withdrawal of complaints, states: "140(1) A complaint may, subject to this section, be withdrawn by the person who made it unless proceedings with respect to the complaint have been instituted in the Tribunal ." 29 Furthermore, s155A which empowers either the Commissioner or the Council to dismiss the complaint, "if satisfied that it is in the public interest to do so", makes express provision as follows: "155A(3) If proceedings with respect to a dismissed complaint have been instituted in the Tribunal by the Commissioner or Council, the Tribunal may, on the application of the Commissioner or Council dismiss the proceedings." 30 These sections reinforce the mandatory obligation created by s155(2): A Council must institute proceedings in the Tribunal if it reaches the satisfaction therein referred to. It is quite inconsistent with such a mandatory obligation to suggest that the proceedings can be withdrawn from the Tribunal at the discretion of a Council. 31 The Appellant submitted that the word "may" in s23(5)(g) should be read as "must". It recognised that s73(5)(g) would apply to the full range of legislative schemes pursuant to which the Tribunal is invested with jurisdiction. It sought to distinguish the Tribunal's appellate jurisdiction over administrative decisions, from its original jurisdiction, particularly that under professional conduct legislation. 32 I can see no reason why the word "may", which is intended to apply across a broad range of legislative schemes, should be given anything other than its usual meaning of conferring a discretion. That is particularly the case in view of the express provision in s9 of the Interpretation Act 1987 that "the word 'may', if used to confer a power, indicates that the power may be exercised or not, at discretion". 33 Where used in a provision of so general an application as that found in s73(5)(g), that is the proper interpretation. There is no warrant for the submission that the word "may" will give rise to a discretion with respect to some statutes but not others. 34 No authority was cited to this Court in support of the contention that a word like "may", in a provision intended to apply in a wide range of circumstances, can change its meaning from one circumstance to another. There is no such principle in the law of statutory interpretation. Sometimes words are given an ambulatory operation. However, what is suggested here is verbal alchemy. 35 The Appellant contended that the Tribunal erred in the exercise of the discretion, on the assumption that it had one. I can see no reason for interfering with that exercise. The Tribunal said in its judgment: "[49] … 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." 36 This appears to me to be a perfectly appropriate, indeed an inevitable, outcome. The Tribunal, once its jurisdiction has been invoked, is the relevant decision-making body, not the Council of the Bar Association. If it is to exercise a statutory discretion, it must be provided with the information which would enable it to do so. 37 The parties agreed that, irrespective of the outcome of the proceedings, there should be no order as to costs. 38 The appeal should be dismissed. 39 MASON P: I agree with Spigelman CJ. 40 BROWNIE AJA: I agree with Spigelman CJ. ********** 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.