Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the New South Wales Bar Association v ECC [2019] NSWCATOD 171 Hearing dates: 12 and 13 June, 12 September, 3 October 2019 (written submissions) Date of orders: 01 November 2019 Decision date: 01 November 2019 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member G Curtin SC, Senior Member Prof P Foreman AM, General Member Decision: (1) The application is dismissed. (2) The name of the respondent is anonymised. (3) The applicant is to pay the costs of the respondent in the proceedings assessed in default of agreement. Catchwords: Legal practitioner – application for disciplinary findings and orders – general delegation by Legal Services Commissioner of NSW to NSW Bar Association to commence proceedings held insufficient to authorise commencement of proceedings by Council of the NSW Bar Association – proceedings dismissed because commenced without power – costs order made Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Legal Profession Uniform Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Council of the Law Society of NSW v DXW [2019] NSWCATOD 101 Category: Principal judgment Parties: Council of the New South Wales Bar Association (Applicant) ECC (Respondent) Representation: Counsel: P Dwyer and later R Lancaster SC and P A Maddigan (Applicant) C A Webster SC (Respondent) Solicitors: Kennedys (Applicant) Carter Newell (Respondent) File Number(s): 2018/00356673 Publication restriction: The name of the respondent is anonymised. REASONS FOR DECISION Background 1. These proceedings are constituted by an Application for disciplinary findings and orders filed by the applicant, Council of the New South Wales Bar Association, seeking certain protective orders on the basis that the respondent barrister ECC was guilty of unsatisfactory professional conduct within the meaning of section 296 of the Legal Profession Uniform Law (NSW) ("the Uniform Law"). 2. Section 296 of the Uniform Law is in the following terms; 296 Unsatisfactory professional conduct For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. 1. The respondent conceded that he had engaged in certain aspects of the conduct alleged by the applicant, but vehemently disputed other aspects of the conduct alleged against him. 2. A hearing was conducted on 12 and 13 June 2019 during which evidence was received by the Tribunal and submissions were made by the parties. The proceedings were stood over on the basis that our decision would be reserved pending confirmation received by the parties that the NSW Legal Services Commissioner raised no objection to the making of protective orders as proposed in an Instrument of Consent. The parties were subsequently notified that reasons for decision would be published on 4 July 2019. The parties asked that publication be deferred. 3. On 2 August 2019 the parties jointly made application to the Tribunal seeking that by consent, leave be given to reopen the proceedings and that they be conducted on the basis of a Statement of Agreed Facts dated 2 August 2019. We conducted a hearing to deal with that application on 12 September 2019. On 9 September 2019 the applicant's solicitors indicated by email that a "jurisdiction issue has arisen", referring to the decision of this Tribunal in Council of the Law Society of NSW v DXW [2019] NSWCATOD 101. The applicant stated that it was giving consideration to making an application for dismissal of the proceedings for want of jurisdiction because of concerns identified with respect to an Instrument of Delegation made by the NSW Legal Services Commissioner. 4. Such an application was made during the course of the hearing, and we have subsequently received additional documentation filed by the applicant and written submissions filed by the respondent. These reasons deal with the application brought by the applicant seeking dismissal of the proceedings and an application made by the respondent seeking a costs order. The statutory background to the application for dismissal 1. The regulation of the legal profession in NSW and these disciplinary provisions are governed by the provisions of the Legal Profession Uniform Law (NSW) No 16a ("the Uniform Law") and the Legal Profession Uniform Law Application Act 2014 No 16 ("the Application Act"). 2. By section 4 of the Application Act; 4 Application of Legal Profession Uniform Law The Legal Profession Uniform Law set out in Schedule 1 to the Legal Profession Uniform Law Application Act 2014 of Victoria: (a) applies as a law of this jurisdiction, and (b) as so applying may be referred to as the Legal Profession Uniform Law (NSW), and (c) so applies as if it were an Act. Designated local regulatory authorities 1. By section 11 of the Application Act, various bodies are specified as designated local regulatory authorities for the purpose of the Uniform Law. Part of the table which forms part of section 11 is reproduced hereunder; 11 Designation of local authorities and tribunals (1) A person or body specified in Column 2 of Table 1 is the designated local regulatory authority for the purposes of a provision of the Legal Profession Uniform Law (NSW) specified in Column 1 of that Table opposite that person or body. Note. See section 6 of the Legal Profession Uniform Law (NSW) for the definition of designated local regulatory authority. Table 1 Designated local regulatory authorities Column 1 Column 2 Provision of Legal Profession Uniform Law (NSW) Designated local regulatory authority Chapter 2, section 14 Bar Council Law Society Council Chapter 2, Part 2.2 (except section 23) NSW Admission Board Chapter 2, section 23 Bar Council Law Society Council Chapter 3 (except sections 49, 50, 119, 120 and 121 and Part 3.4) Appropriate Council Chapter 3, section 49 Law Society Council Chapter 3, section 50 Bar Council Chapter 3, Part 3.4 Bar Council Law Society Council Chapter 3, sections 119 and 120 (1) Bar Council Law Society Council NSW Commissioner Chapter 3, section 120 (4) Bar Council Law Society Council Chapter 3, section 121 (except in the case of a person convicted of a serious offence) Appropriate Council Chapter 3, section 121 (in the case of a person convicted of a serious offence) NCAT Chapter 4 (except sections 174, 178, 194, 197, 202, 205, 215, 256, 257 and 258) Law Society Council Chapter 4, sections 174, 178, 194, 197, 202 and 205 NSW Commissioner Chapter 4, section 215 Appropriate Council Chapter 4, sections 256 and 257 NSW Commissioner Appropriate Council Chapter 4, section 258 Appropriate Council NSW Commissioner Chapter 5 Note. Section 405 (2) of the Legal Profession Uniform Law (NSW) contemplates that the local regulatory authority (the NSW Commissioner) may delegate Chapter 5 functions to a professional association (the Bar Association or Law Society). See also sections 29 (c) and 31 (1) (c) of this Act. Chapter 6 Appropriate Council Chapter 7 (except to the extent that it applies to complaint investigations) NSW Commissioner Appropriate Council NSW Commissioner Chapter 7 to the extent that it applies to complaint investigations Note. These functions of the NSW Commissioner under Chapter 7 are "Chapter 5 functions" and therefore may be exercised by the Bar Association or Law Society by delegation. See the note in relation to Chapter 5 above. Chapter 9, section 421 (2) (f) NSW Admission Board NSW Admission Board (in relation to admissions) Chapter 9, section 436 (1) NSW Commissioner (in relation to Chapter 5 functions) Appropriate Council Chapter 9, section 436 (2) NSW Admission Board NSW Admission Board Chapter 9, sections 437, 446, 447, 448, 449 and 453 NSW Commissioner Bar Council Law Society Council Chapter 9, section 466 (7) Appropriate Council Schedule 3 (except clause 14) Appropriate Council Schedule 3, clause 14 NSW Commissioner 1. Significantly for the purpose of the determination of these proceedings, the Bar Council is a designated local regulatory authority, and the only mention made of the NSW Bar Association is that contained by reference to functions which may be delegated by the NSW Legal Services Commissioner. 2. Bar Association is defined in section 3 of the Application Act as meaning the NSW Bar Association, and Bar Council is defined in the same section to mean the Council of the Bar Association. 3. Part 3 of the Application Act describes the persons and entities who are local regulatory authorities. Division 2 deals with the appointment and functions of the NSW Legal Services Commissioner. Division 3 deals with the Bar Council and is in the following terms; 29 Functions of Bar Council In addition to its other functions, the Bar Council may exercise functions conferred or imposed on it or the Bar Association: (a) by the Legal Profession Uniform Law (NSW), or (b) by this Act, or (c) as delegate of the NSW Commissioner. 30 Delegation of functions of Bar Council (1) The Bar Council may delegate any of its functions under this Act (other than this power of delegation) or the Legal Profession Uniform Law (NSW) to any of its committees, to an officer of the Bar Association or to an employee of the Bar Association. (2) For the purposes of this section, the functions of the Bar Council under the Legal Profession Uniform Law (NSW) include any functions delegated to the Bar Council under that Law. Note. Section 406 of the Legal Profession Uniform Law (NSW) provides that a local regulatory authority may delegate its functions under that Law to an entity prescribed by jurisdictional legislation. The local regulations may also prescribe delegates or classes of delegates of local regulatory authorities (see section 166). 1. By section 6 of the Uniform Law, a designated local regulatory authority is defined in the following terms designated local regulatory authority means a person or body specified or described in a law of this jurisdiction for the purposes of a provision, or part of a provision, of this Law in which the term is used; The NSW Legal Services Commissioner's powers of delegation 1. The NSW Legal Services Commissioner is given powers of delegation of his functions by section 28 of the Application Act which is in the following terms; 28 Delegation of functions of NSW Commissioner (1) The NSW Commissioner may delegate any of his or her functions under this Act (other than this power of delegation) or the Legal Profession Uniform Law (NSW) to any member of the staff of the NSW Commissioner or to a person of a class prescribed by the regulations. (2) The NSW Commissioner may delegate any of his or her Chapter 5 functions to the Bar Council or the Law Society Council. Note. Under the Legal Profession Uniform Law (NSW), Chapter 5 functions means: (a) functions under Chapter 5, or (b) functions under another provision of that Law relating to Chapter 5, or (c) functions under the Uniform Rules relating to Chapter 5. Note. Section 406 of the Legal Profession Uniform Law (NSW) provides that a local regulatory authority may delegate its functions under that Law to an entity prescribed by jurisdictional legislation. The local regulations may also prescribe delegates or classes of delegates of local regulatory authorities (see section 166). 1. Powers of delegation are also given in section 406 of the Uniform Law which is as follows; 406 Delegation of functions of local regulatory authorities (1) A local regulatory authority may, by instrument in writing, delegate any of its functions under this Law to an entity prescribed, or an entity of a class prescribed, by jurisdictional legislation. (2) Subsection (1) does not apply to— (a) the power to delegate a function; or (b) the power (under section 411) to take over responsibility for a matter from a delegate of the local regulatory authority. 1. Section 405(2) of the Uniform Law anticipates that delegation may be made to a "professional association"; 405 Local regulatory authority for Chapter 5 functions to be independent entity (1) A local regulatory authority exercising Chapter 5 functions must be an independent entity. (2) Subsection (1) does not prevent a local regulatory authority from delegating (under section 406) any Chapter 5 functions to a professional association. 1. Section 6 of the Uniform Law defines a professional association to mean; an entity whose membership consists principally of Australian legal practitioners and whose principal functions include representing or assisting Australian legal practitioners; 1. It may be assumed that the reference to a professional association in the context of these proceedings is a reference to the Bar Association. Nevertheless, the delegation for current purposes must be found to be one made under section 406. Disciplinary proceedings 1. These are disciplinary proceedings for the purpose of the Uniform Law. They are contained within Part 5 of that Act. Relevantly, a complaint may only be initiated by a designated local regulatory authority. Section 266 provides that; 266 Who may make a complaint? (1) Any person or body may make a complaint. (2) The designated local regulatory authority may initiate a complaint containing a disciplinary matter only. 1. In DXW previously cited, there is a discussion of the difference between the making of a complaint and the initiation of a complaint. We proceed on the basis that for the purpose of these proceedings, we are concerned with whether the NSW Legal Services Commissioner has delegated his function of initiating, in the sense of commencing, these proceedings. 2. For completeness we note that disciplinary matters are defined in section 270 of the Uniform Law as follows; 270 Disciplinary matters A disciplinary matter is so much of a complaint about a lawyer or a law practice as would, if the conduct concerned were established, amount to unsatisfactory professional conduct or professional misconduct. The delegation made by the NSW Legal Services Commissioner. 1. An agreed statement of facts which had been filed in the substantial proceedings contained, inter alia, the following recitation; INTRODUCTION 1 The Applicant is, and was at all material times, the designated local regulatory authority for the purposes of section 266(2) of the Legal Profession Uniform Law (NSW) (Uniform Law). Particulars (a) The Legal Services Commissioner of NSW, by Instrument of Delegation, dated 18 June 2015, delegated to the Applicant his functions as the designated local regulatory authority in respect only of complaints, as defined in section 265 of the Uniform Law, made to or by him. 1. The proceedings were initiated by an Application for disciplinary findings and orders filed by the applicant on 20 November 2018. Our consideration of this application requires us to examine the purported Instrument of Delegation and whether the applicant was appropriately delegated thereby the function of commencing these proceedings. 2. It is common ground that there is no evidence that the NSW Legal Services Commissioner purported to exercise any power of delegation under section 28 of the Application Act. The only Instrument of Delegation which is in evidence before us is one which is stated to be made pursuant to section 406 of the Uniform Law and is dated 18 June 2015. Relevant portions of that document are to the following effect; Pursuant to section 406 of the … Uniform Law I hereby delegate to the Bar Association … (as defined in the (Application Act) my functions as the designated local regulatory authority under the provisions of the Uniform Law stated in the Schedule to this delegation, in respect only of a complaint (as defined in section 265 of the Uniform Law) made to or by me which is…. A disciplinary matter (as defined in section 270 of the Uniform Law which I have decided not to deal with or to continue to deal with, which I refer to the relevant Professional Association for assessment, investigation and determination under Chapter 5… 1. The Schedule to the Instrument included, relevantly, the function of initiating a complaint under Part 5 of the Uniform Law. 2. For the purpose of the above Instrument, a relevant Professional Association was defined as the Bar Association. 3. Accordingly, the only purported delegation was that made to the Bar Association of NSW. These proceedings were initiated by the Bar Council. The applicant asserted that there had been no valid delegation to the applicant, the applicant thereby lacked power to initiate the proceedings and the proceedings should be dismissed on the basis that they had not been validly commenced by a person or entity with power to do so. 4. We were provided by the applicant with a copy of the Constitution of the Bar Association. The business and affairs of that Association is administered by the Bar Council, which consists of a group of 21 members of the Association elected from time to time in accordance with the provisions of the Constitution. However, there are some limitations on the exercise of power by the Bar Council, namely where such powers can only be exercised in a General Meeting of the Association. In addition, the Constitution allows the Council to exercise powers conferred on it independently by legislation. Consideration 1. We now come to consider the effect of the Instrument of Delegation under section 406 of the Uniform Law, which can be the only basis upon which the applicant in these proceedings was empowered to initiate them. 2. It will firstly be observed that the Instrument of Delegation relevantly confined the delegation to the Bar Association and not to the applicant Council. Accordingly, it is necessary to determine whether this delegation was effective to empower the Council to initiate these proceedings. We are not prepared to substitute the Council for the Association in circumstances where the Application Act makes a clear distinction between each of these entities in the manner in which we have described above. 3. Of course, the NSW Legal Services Commissioner was empowered by section 28(2) of the Application Act to delegate any Chapter 5 function to the Bar Council but did not do so. We were informed by the applicant that no person or class has been prescribed by regulations, so that section 28(1) cannot be enlivened. 4. The only basis upon which it might be argued that the applicant Bar Council was empowered to initiate these proceedings is by reference to the provisions of section 29 of the Application Act, which we have previously set out. By omitting irrelevant parts, this section may be read as providing that "the Bar Council may exercise functions conferred or imposed on ... the Bar Association … as delegate of the NSW Commissioner." Read in this way, the applicant was empowered to exercise the function of the initiation of these proceedings because that function had been conferred on the Bar Association as delegate of the NSW Legal Services Commissioner, pursuant to the Instrument of Delegation made on 18 June 2015. 5. The applicant submitted that section 29 cannot be read in this manner. It said firstly that this section "ought not be construed as a provision of jurisdictional legislation prescribing the Bar Association for the purposes of section 406 (1) of the Uniform Law." We note that "jurisdictional legislation" is defined by section 6 of that Act as "legislation of a jurisdiction". 6. We agree with this submission of the applicant but would express our conclusion in a different manner. The only way in which section 29 may operate is conditional upon the NSW Legal Services Commissioner having validly delegated the initiation of these proceedings to the Bar Association. The only powers of delegation of the functions of the Commissioner to the Bar Association are those contained in the Application Act and the Uniform Law. There is no power of delegation to the Bar Association contained within section 28 of the Application Act. The Application Act is the only relevant jurisdictional legislation which can create a power of prescription of either an entity or a class as contemplated by section 406. Accordingly, although section 405(2) of the Uniform Law seems to contemplate that a professional association such as the Bar Association may be the subject of a delegation under section 406, it is nevertheless necessary to identify the professional association as having been prescribed by or being part of a class prescribed by the jurisdictional legislation, namely the Application Act. As we have said, such an entity is, by reference to section 28, the Bar Council. 7. Accordingly it follows that because there has been no function to initiate these proceedings validly conferred upon the Bar Association as delegate of the NSW Legal Services Commissioner section 29(c) cannot apply. 8. It follows that these proceedings have not been validly commenced and should be dismissed accordingly. Non-publication order 1. In circumstances where we have concluded that the applicant was not entitled to commence these proceedings, it would be inappropriate if the respondent's name were published in association with an application for disciplinary findings and orders. The respondent sought a non-publication order extending to the anonymisation of his name and the applicant did not oppose such an order. We shall order accordingly. Costs 1. In circumstances where there has been no finding of professional misconduct or unsatisfactory professional conduct, the provisions of Schedule 5 clause 23 of the Civil and Administrative Tribunal Act 2013 do not apply. The respondent sought an order for costs in his favour. The basis upon which costs can be ordered is a finding of "special circumstances" as contemplated by section 60 of that Act. 2. The respondent submitted that in circumstances where, by reason of the defects associated with the issue of these proceedings which we have earlier identified, the proceedings should not have been commenced, and were bound to fail. It was said that these constituted special circumstances warranting a costs order in favour of the respondent. 3. The applicant consented to an adverse costs order, and we conclude that it is appropriate to make such an order. Orders 1. We make the following orders: 1. The application is dismissed. 2. The name of the respondent is anonymised. 3. The applicant is to pay the costs of the respondent in the proceedings assessed in default of agreement. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 01 November 2019