Griffin v The Council of the Law Society of New South Wales

1. [1]

   WARD JA: I have had the advantage of reading in draft the comprehensive reasons of Sackville AJA, with which I agree. The conduct of the appellant (and his arguments in this Court, including both his attempts to justify that conduct and his submission as to the lack of utility in the order that he undertake a course in legal ethics) demonstrates a fundamental misapprehension of the professional and ethical obligations of a solicitor, for the reasons articulated by Sackville AJA, and more than amply highlights the need for further legal training. I agree with the orders his Honour has proposed.

2. [2]

   GLEESON JA: I agree with the reasons of Sackville AJA and the orders that his Honour proposes. I also agree with the additional observations of Ward JA.

3. [3]

   SACKVILLE AJA: The appellant (Solicitor) acted on behalf of the applicant in proceedings in the Federal Court against the Federal Commissioner of Taxation. On 30 July 2014, a Federal Court Judge (Foster J) dismissed an application for an extension of time in which to file proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) challenging certain decisions of the Commissioner. [1]

4. [4]

   On the following day, 31 July 2014, the Solicitor sent an email to Foster J’s associate attaching a letter (Letter). The email asked the associate to bring the Letter to Foster J’s attention. Not surprisingly, having regard to the contents of the Letter, Foster J caused the Solicitor’s conduct to be referred to the respondent (Council).

5. [5]

   On 18 December 2014, the Professional Conduct Committee (Committee) of the Council resolved, pursuant to s 504 of the Legal Profession Act 2004 (NSW) (2004 Act), as in force at the relevant time, to make a complaint against the Solicitor. [2] The particulars of the complaint were that:

6. [6]

   On 19 September 2014, the Professional Standards Department wrote on behalf of the Committee to the Solicitor informing him that the Committee had resolved to make a complaint against him. Thereafter, the Solicitor sought and received from the Committee further particulars of the complaint.

7. [7]

   On 4 March 2015, the Council filed an Application in the New South Wales Civil and Administrative Tribunal (Tribunal) seeking orders against the Solicitor. These included orders that the Solicitor be reprimanded and that he be required to complete satisfactorily a course in Legal Ethics.

8. [8]

   Although the Application did not say so, it was filed by the Council pursuant to s 551 of the 2004 Act. Section 551 empowered the Council to commence proceedings in the Tribunal with respect to the whole or part of the complaint against an Australian legal practitioner containing one or more allegations of unsatisfactory professional conduct or professional misconduct. Section 497(1) of the 2004 Act defined “professional misconduct” for the purposes of the Act to include:

9. [9]

   The Grounds stated in the Application alleged that the Solicitor was:

10. [10]

    The particulars of the allegation were as follows:

11. [11]

    The particulars contained the following definitions:

12. [12]

    On 1 July 2015, the 2004 Act was repealed by s 167(a) of the Legal Profession Uniform Law Application Act 2014 (NSW) (Application Act). On the same day, the Legal Profession Uniform Law (NSW) (Uniform Law) came into force. [4] Many of the provisions in the Uniform Law relating to complaints and disciplinary proceedings replicate provisions in the 2004 Act.

13. [13]

    The Council’s Application was heard by the Occupational Division of the Tribunal on 7 September 2015. The Tribunal comprised the Principal Member, a Senior Member and a General Member. The Council was represented by a solicitor. The Solicitor represented himself.

14. [14]

    The Tribunal delivered its reasons for decision on 8 April 2016, some seven months after the hearing. [5] It made the following “finding and orders”: [6]

15. [15]

    On 6 May 2016, the Solicitor filed a summons in the Common Law Division purporting to appeal from NCAT’s decision. The appeal should have been commenced in the Court of Appeal [7] and the proceedings were duly removed to this Court. The Solicitor’s Notice of Appeal comprises 28 grounds, some of which purport to raise constitutional questions.

16. [16]

    On 20 September 2016, Emmett AJA stayed enforcement of the orders made by NCAT until six months after the determination of the Solicitor’s appeal. [8] Emmett AJA pointed out that the orders made by NCAT “exhibited some degree of lack of care in their formulation”. [9] In particular, subpar (d) repeated the numbering used by the Council in its original Application, but which the Tribunal did not follow. As his Honour pointed out, it is clear enough that the expression “within the period in 2 above” in subpar (d) is intended to refer to the date of the orders made by NCAT. [10]

17. [17]

    On 19 September 2016, the Solicitor filed an application in the High Court seeking an order pursuant to s 40 of the Judiciary Act 1903 (Cth) [11] removing the proceedings pending in this Court to the High Court for determination. On 11 October 2016, the Solicitor sought an order expediting the hearing of the removal application. On 14 December 2016, Kiefel and Keane JJ dismissed the application for removal. [12]

The Letter

1. [18]

   The email from the Solicitor to the Judge’s associate was as follows:

2. [19]

   The Letter attached to the email was as follows:

The complaint

1. [20]

   It is curious that the Committee’s complaint identified the Solicitor’s alleged professional misconduct as engaging in grossly discourteous behaviour towards a judicial officer. The contents of the Letter and the circumstances in which it was sent to the Judge might have been thought to raise serious issues concerning the Solicitor’s conduct beyond mere discourtesy (gross or otherwise) to a judicial officer.

2. [21]

   The Solicitor’s first request for further particulars asked “[i]n what way is it contended that the facts alleged constitute ‘discourtesy’[?]”. The Committee’s response drew the Solicitor’s attention to the NSW Professional Conduct and Practice Rules 2013 (Solicitors’ Rules) (2013 Rules) which (so the response stated) “generally deal with courtesy in the practise [sic] of law”.

3. [22]

   The Committee did not identify which of the 2013 Rules it had in mind, but it might have intended to refer to the following:

4. [23]

   The Committee’s response also stated that the Letter raises “on its face, serious issues of alleged conduct relative to the earlier proceedings [before the Judge]”. The Committee added the following:

5. [24]

   The Solicitor made a second request for further particulars. He asked if the Committee was saying that “the words used [in the Letter] are discourteous and not the fact that the letter was sent to his Honour?”

6. [25]

   In response to this question the Committee stated that:

7. [26]

   The Committee then set out verbatim a number of statements in the Letter, including the Solicitor’s suggestion that the Judge may not have written the judgment “at all” and that the decision was “likely made without good faith and with bias”.

8. [27]

   In its response to the Solicitor’s second request for further particulars, the Committee “again” referred him to the 2013 Rules. On this occasion the Committee referred specifically to r 22.5 of the 2013 Rules, which provided as follows:

9. [28]

   In addition to constituting an ex parte communication, the Letter would seem to raise other significant issues concerning the Solicitor’s conduct. The terms of the letter suggest that the Solicitor may have:

10. [29]

    If these matters had been particularised and been the subject of findings in the Tribunal, they may have established that the Solicitor had engaged in professional misconduct considerably more serious than suggested by the description “gross discourtesy to a judicial officer”. However, that course was not followed.

Tribunal Reasons

1. [30]

   The Tribunal did not identify at the outset the statutory provisions it was required to apply, having regard to the repeal of the 2004 Act prior to the hearing of the Council’s Application. The Tribunal addressed the question towards the end of its reasons, as follows: [15]

2. [31]

   The Tribunal set out at length the Letter and the correspondence between the Solicitor and the Committee. The correspondence included a lengthy letter dated 29 October 2014 in which the Solicitor attempted to justify his conduct.

3. [32]

   The Tribunal recorded that the Solicitor had submitted that:

4. [33]

   The Tribunal also recorded that the Council’s solicitor did not put its case on any higher basis than gross discourtesy to a judicial officer. The Tribunal said that the Council did not assert that the Letter to the Judge “of itself” was capable of constituting professional misconduct. [16] The meaning of this statement is not clear, but it may be a reference to the Tribunal’s understanding that the Council was not relying on the ex parte nature of the Solicitor’s communication with Foster J. In any event, according to the Tribunal, it followed that the case did not involve any assertion which could arguably affect the rights of the Solicitor under the Constitution or could conflict with Federal law. The Tribunal did not explain why that conclusion followed.

5. [34]

   The Tribunal summarised the Council’s submission on the Solicitor’s alleged gross discourtesy as follows: [17]

6. [35]

   The Tribunal referred to several authorities suggesting that professional misconduct at common law can be understood broadly. [18] In doing so, the Tribunal appears to have accepted the submissions made by the Council that the statutory definition of “professional misconduct” is not exhaustive and leaves room for the common law to operate.

7. [36]

   The Tribunal then reasoned as follows: [19]

The appeal

1. [37]

   The Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that a party to proceedings in which a “profession decision” is made may appeal to the Supreme Court against the decision. [20] A “profession decision” includes “a decision for the purposes of the [Uniform Law]”. [21] A reference in the NCAT Act to the Uniform Law includes a reference to the 2004 Act. [22] An appeal to the Supreme Court against a decision “for the purposes of the [Uniform Law]”:

2. [38]

   Section 75A of the Supreme Court Act 1970 (NSW) (Supreme Court Act) relevantly provides as follows:

3. [39]

   Section 590 of the 2004 Act and its counterpart, s 264(1) of the Uniform Law, state that the jurisdiction and powers of the Supreme Court with respect to the control and discipline of local lawyers are not affected by anything in the Chapter of the legislation relating to complaints and discipline. At first sight, it might appear that the Court, when hearing an appeal from the Tribunal’s decision on a disciplinary application, is not necessarily confined to the issues arising on the appeal. If the Court’s inherent jurisdiction over legal practitioners co-exists with its appellate jurisdiction, the Court perhaps could have power to form its own view as to whether a solicitor is guilty of professional misconduct (subject to providing procedural fairness if the allegations go beyond matters addressed by the Tribunal).

4. [40]

   The High Court considered this question in Walsh v Law Society of New South Wales, [24] a case decided under the Legal Profession Act 1987 (NSW) (1987 Act). The joint judgment held that s 171M of the 1987 Act (the forerunner to s 590 of the 2004 Act) did not justify the Court of Appeal, when hearing an appeal from the Tribunal, [25] to ignore or depart from the complaint against the legal practitioner as formulated and particularised by the Law Society. [26] Thus, the Court of Appeal could not travel beyond the powers conferred by s 75A of the Supreme Court to determine for itself, by reference to the evidence before the Tribunal, whether the practitioner concerned was of good fame and character.

5. [41]

   The current legislative scheme is very similar, but not identical, to that considered by the High Court in Walsh v Law Society. The joint judgment in that case emphasised that the right of appeal under the 1987 Act was “against the Tribunal’s determination of a complaint”. [27] By contrast, the current legislation simply provides for a right of appeal “against the decision” of the Tribunal. [28]

6. [42]

   Neither party to the present appeal referred to Walsh v Law Society. The Council made no submission that the Court, whatever view it formed of the Solicitor’s conduct, should do anything other than consider the merits of his appeal. In the absence of any contention that the decision in Walsh v Law Society does not apply to the current legislation, this Court should proceed on the basis that the decision governs the scope of the Solicitor’s appeal.

The Solicitor’s Submissions

1. [43]

   The Solicitor filed lengthy written submissions in support of the appeal. The written submissions group the 28 grounds of appeal into five categories, raising the following issues:

   1. (1)

      Grounds 1-10: whether the Tribunal applied the correct test for professional misconduct at common law.

   2. (2)

      Grounds 11-14: whether the Tribunal was correct in characterising the language in the Letter as “offensive” and “grossly offensive”, having regard to the implied constitutional freedom of political communication.

   3. (3)

      Grounds 15-17: whether a Member of the Tribunal (Ms Hale) wrongly refused to “recuse” herself on the ground of apprehended bias.

   4. (4)

      Grounds 18-27: whether the Tribunal exceeded its jurisdiction and otherwise fell into jurisdictional error.

   5. (5)

      Ground 28: whether the Tribunal erred in making a costs order against the Solicitor.

2. [44]

   It is not easy to follow some of the Solicitor’s grounds of appeal or sections of his written submissions. For example, Ground 18 contends that the Tribunal erred:

3. [45]

   The reference to the Constitution may be taken to incorporate the various grounds of appeal relying on the implied freedom of political communication (Grounds 12, 24, 25 and 26). But the relevance of the other provisions identified in Ground 18 to the issues arising on the appeal is obscure to say the least. The Solicitor’s written submissions do not clarify how the provisions are said to assist his appeal.

4. [46]

   The principal arguments advanced by the Solicitor, as I understood them, can be summarised by reference to the five categories identified in the Notice of Appeal.

   1. (1)

      The Tribunal misapplied the common law test for determining whether a solicitor’s conduct constitutes professional misconduct. In particular, the Tribunal found the Solicitor to be guilty of professional misconduct notwithstanding that the Council made no allegation that he had acted dishonestly or unfairly. In the absence of a finding that the Solicitor acted dishonestly or in a manner that involved unfair dealing, the Tribunal could not have been satisfied to the “Briginshaw standard” [29] that his actions amounted to professional misconduct.

   2. (2)

      The Tribunal failed to explain the meaning of the term “offensive” and overlooked the principle that contemporary Australian society allows leeway for speech that some might consider insulting or offensive. Most importantly, the words used in the Letter were protected by the implied constitutional freedom of political communication. The High Court has determined, so the Solicitor argued, that a law which proscribes insulting or offensive words is invalid to the extent that the statements concern political or governmental matters. The statements in the Letter were political and dealt with a governmental matter because they “were made in the course of criticism of the conduct and determinations of a judicial member of government in a Ch III…Court”.

   3. (3)

      A Member of the Tribunal (Ms Hale) should have acceded to the Solicitor’s application for her to disqualify herself on the ground of apprehended bias. According to the Solicitor, the Senior Member had a “not insignificant employment or contractual relationship with the Law Society over many years”. Thus, a fair minded and reasonable lay observer would apprehend that the Senior Member would not bring an impartial and unprejudiced mind to the determination of the Council’s Application.

   4. (4)

      The Solicitor’s submissions on jurisdictional error, to the extent that they did not repeat other submissions, seemed to rely on s 537(2) of the 2004 Act. The Solicitor pointed out that s 537(2) required the Council, before commencing proceedings in the Tribunal, to be satisfied that there was a reasonable likelihood that the Solicitor would be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct. The argument seemed to be that there was no evidence that the Council had been so satisfied and that, in any event, the Council could not have been satisfied that there was a reasonable likelihood that the Solicitor would be found to have engaged in professional misconduct.

   5. (5)

      The Tribunal’s costs order was flawed because the Tribunal relied on s 566 of the 2004 Act. That section, as the Council accepted, had been repealed by the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW) as from 1 January 2014. [30] It followed that the Tribunal failed to consider the relevant criteria when making the costs order (although the Solicitor did not say what criteria should have been applied).

5. [47]

   The Solicitor gave notice to the Commonwealth State and Territory Attorneys-General of a constitutional matter, as required by s 78B of the Judiciary Act 1903 (Cth). No Attorney-General sought to intervene in the appeal.

Conduct of the Proceedings

1. [48]

   The conduct of these proceedings gives rise to several matters of concern. The first is the decision of the Committee, referred to earlier, [31] to limit the complaint about the Solicitor’s alleged professional misconduct to a claim of discourteous behaviour towards a judicial officer.

2. [49]

   Secondly, the Committee’s responses to the Solicitor’s request for further particulars left a good deal to be desired. The Committee’s first response referred to the 2013 Rules, but did not identify which of the rules the Solicitor had allegedly breached. The Committee’s first response also appeared to include an allegation that the Solicitor had made an inappropriate and improper ex parte communication with the Judge. This allegation was in effect repeated in the Committee’s second response, which specifically referred to r 22.5 of the 2013 Rules (relating to ex parte applications). Yet at the same time, the Committee apparently disclaimed any reliance on the manner in which the Letter was communicated to the Judge.

3. [50]

   The Committee’s second response set out at length portions of the Letter the Committee considered to be discourteous or offensive. But the Committee did not explain why the statements it identified, whether considered individually or collectively, were regarded as sufficiently discourteous or offensive to warrant characterisation as professional misconduct. While the Committee may have regarded this as self-evident, some explanation was warranted. Was the Committee alleging a breach of a particular professional conduct rule? Was the Committee alleging that each of the statements in the Letter, of itself, constituted professional misconduct, or was the Committee relying on the cumulative effect of a series of slurs? Was it part of the complaint that the slurs directed at the Judge had no factual foundation?

4. [51]

   Thirdly, the Tribunal received two sets of inconsistent submissions from the Council concerning the effect of the transitional provisions contained in the Uniform Law and the Application Act. In its first written submissions filed on 12 August 2015, the Council concluded that the effect of the transitional provisions [32] was that the Tribunal’s disciplinary powers in relation to the Council’s Application were to be found in s 302 of the Uniform Law, rather than in s 562 of the repealed 2004 Act.

5. [52]

   The hearing before the Tribunal took place on 7 September 2015. It appears that neither the Tribunal nor the Solicitor took issue with the Council’s written submissions as to the effect of the transitional provisions. At the conclusion of the hearing the Tribunal reserved its decision.

6. [53]

   On 24 November 2015, the Tribunal reconvened, apparently at the request of the Council. The solicitor for the Council handed up further written submissions on the effect of the transitional provisions in the Uniform Law and the Application Act. The solicitor for the Council explained to the Tribunal that “we have got the law wrong in the submissions as we have made”. The Council’s further submissions argued that Sch 4 Pt 3 cl 26 of the Uniform Law, a provision not referred to in the earlier submissions, preserved the Tribunal’s disciplinary powers under s 562 of the 2004 Act. It followed, according to the Council, that the source of the Tribunal’s power to make disciplinary orders against the Solicitor was s 562 of the 2004 Act. The Tribunal was advised that it could ignore the Uniform Law.

7. [54]

   The Tribunal accepted the Council’s further submissions without any additional analysis and held that the Council’s Application was to be dealt with under the 2004 Act. [33] Perhaps in reliance on the Council’s submissions, the Tribunal also held that s 566 of the 2004 Act governed the question of costs. As has been noted, it was common ground on the appeal that s 566 had been repealed prior to the hearing and that the repeal was not affected by the transitional provisions.

8. [55]

   Fourthly, it must be said that this Court did not get the assistance it is entitled to receive on an appeal from the Tribunal’s decision in a disciplinary matter. Perhaps not surprisingly, many of the Solicitor’s submissions reflected a failure to grasp legal principle and a willingness to make assertions that either lacked a sound factual basis or were difficult to reconcile with the facts. (An example of the former was the Solicitor’s persistence with his unfounded claim that the Member of the Tribunal had a longstanding employment or contractual relationship with the Law Society. An example of the latter was the Solicitor’s claims that Foster J was functus officio at the time the Letter was sent and that the Letter did not deal with any matter of substance, when the Letter demanded that Foster J amend the costs order his Honour had made.)

9. [56]

   More significantly, the Council’s submissions did not explain why the extremely complex transitional provisions contained in the Uniform Law and the Application Act required the Tribunal to apply the 2004 Act rather than the Uniform Law. As the High Court remarked in Walsh v Law Society, [34] it is reasonable for the Court to expect the Law Society to know and to indicate the character of the process it has invoked. Nor did the Council’s submissions provide significant assistance on the constitutional argument at the heart of the Solicitor’s case. The argument may have been thought to be without merit, but the Court was entitled to expect the Council to address the contentions advanced by the Solicitor by reference to the relevant authorities.

Reasoning

1. [57]

   Because there seems to be some uncertainty as to the operation of the transitional provisions, the Court invited the parties to make further written submissions as to whether the Tribunal was correct to apply the 2004 Act rather than the Uniform Law. The Council provided helpful written submissions supporting the Tribunal’s conclusion that it was bound to apply the 2004 Act. The Solicitor filed written submissions contending that a “purposive” interpretation of the transitional provisions leads to the conclusion that the Tribunal should have applied the provisions of the Uniform Law rather than the 2004 Act.

2. [58]

   In addressing the operation of the transitional provisions, some background is necessary. The Interpretation Act 1987 (NSW) (Interpretation Act) does not apply to the Uniform Law; [35] instead the Interpretation of Legislation Act 1984 (Vic) applies to the interpretation of the Uniform Law. [36] However, the Interpretation Act does apply to the Application Act. [37] Each of the Interpretation Act and the Interpretation of Legislation Act 1984 (Vic) contains a provision stating that the Act applies except insofar as the contrary intention is expressed in the relevant legislation. [38]

3. [59]

   Section 30(1)(c) of the Interpretation Act provides that the repeal of an Act does not affect “any right, privilege, obligation or liability acquired, accrued or incurred under the Act”. Section 30(1)(e) provides that the repeal of an Act does not affect any legal proceeding in respect of any such right, privilege, obligation or liability. [39] If these provisions of the Interpretation Act apply to the repeal of the 2004 Act, the repeal does not affect the proceedings instituted by the Council against the Solicitor. Accordingly, the proceedings would continue to be governed by the 2004 Act.

4. [60]

   In ADCO Constructions Pty Ltd v Goudappel, [40] four members of the High Court stated that the protection of accrued rights provided by s 30(1)(c) of the Interpretation Act mirrors the common law as enunciated by Dixon CJ in Maxwell v Murphy. [41] In that case his Honour said:

5. [61]

   The Council submitted that the operative transitional provision is contained in the Uniform Law Sch 4 Pt 3 cl 26, which relevantly provides as follows:

6. [62]

   “Old legislation” is defined to mean the statutory provisions operated by the Application Act. [42] These provisions include the 2004 Act which was repealed by s 167(a) of the Application Act. “Old Chapter 4” is defined to include Chapter 4 of the 2004 Act.

7. [63]

   The Council pointed out that there is no definition of “disposed of” in the Uniform Law. It contended, however, that a complaint made pursuant to the 2004 Act is not “disposed of” until proceedings in the Tribunal with respect to a complaint are concluded. Since the Council’s Application had not been finalised by the Tribunal on the commencement date, so the Council argued, Sch 4, Pt 3, cl 26 of the Uniform Law required the Tribunal to apply the 2004 Act in determining the Application.

8. [64]

   To address this submission, it is convenient to give an outline of the complaints procedure under the 2004 Act. Although the 2004 Act has been repealed, I refer to it as though it is still in operation.

9. [65]

   Chapter 4 of the 2004 Act deals with “Complaints and Discipline”. Section 494(1) sets out the purposes of Chapter 4 including:

10. [66]

    Part 4.2 of the 2004 Act is headed “Complaints About Australian legal practitioners”. A complaint may be made about an Australian legal practitioner’s conduct. [44] A complaint is to be made to the Legal Services Commissioner unless it is made by the Commissioner or a Council. [45] If the Council makes a complaint, it must notify the practitioner concerned, [46] who is entitled to make submissions to the Council. [47]

11. [67]

    The Council may dismiss a complaint in defined circumstances, for example, if the complaint is vexatious. [48] A complaint may also be withdrawn by the person making it. [49]

12. [68]

    Part 4.4 of the 2004 Act governs the investigation of complaints. Each complaint must be investigated unless, among other things, it is withdrawn or dismissed. [50] The Council must conduct an investigation into each complaint it makes. [51]

13. [69]

    Part 4.5 of the 2004 Act is headed “Decision of Commissioner or Council”. Section 537 provides as follows:

14. [70]

    After completion of the investigation of a complaint, the Council may dismiss the complaint if satisfied that there is no reasonable likelihood that the Tribunal will find that the practitioner engaged in unsatisfactory professional conduct or professional misconduct or if it is in the public interest to do so. [52] As s 537 indicates, the Council has power, in certain circumstances following the completion of the investigation, to impose sanctions on a practitioner, including administering a caution or a reprimand. [53]

15. [71]

    The Council relied particularly on Part 4.8 of the 2004 Act (“Proceedings in Tribunal”) as demonstrating that proceedings in the Tribunal are closely connected to a complaint. The key provisions are as follows:

16. [72]

    I accept the Council’s submissions that Pt 4.8 of the 2004 Act makes it clear that a disciplinary application in the Tribunal is founded on and closely tied to a complaint. Thus, proceedings are commenced in the Tribunal “with respect to a complaint”; the Tribunal has power to make interlocutory orders “about a complaint”; and the Tribunal’s disciplinary powers can be exercised “in relation to a complaint”. In my opinion, although the expression “disposed of” in cl 26 is imprecise, when cl 26 is read in context it applies to a disciplinary application with respect to a complaint which has not been finalised by the Tribunal on the commencement day (1 July 2015).

17. [73]

    The Council’s submissions did not direct attention to the relationship, if any, between the transitional provision in Sch 4 Pt 3 cl 26 of the Uniform Law and other transitional provisions, notably Sch 4 Pt 1 cl 2 of the Uniform Law [55] and Sch 9 Pt 2 cl 3 of the Application Act. [56] While the language of the two other transitional provisions is capable of applying to a disciplinary application pending in the Tribunal, (thereby rendering the Uniform Law applicable in the pending application), in my opinion, these general transitional provisions must yield to the more specific transitional provision contained in the Uniform Law Sch 4 Pt 3 cl 26.

18. [74]

    It follows that the Tribunal was correct in the present case to deal with the disciplinary application against the Solicitor by reference to the 2004 Act and not to the Uniform Law.

19. [75]

    The Solicitor’s written submissions to the Tribunal objected to the composition of the Tribunal. The Solicitor asked that one of the Members (Ms Hale), “recuse herself”. The basis of the submission was that the Member:

20. [76]

    The Solicitor was informed in writing by the Registrar of the Tribunal that the Member at no time had been an employee or contractor of the Law Society. Nevertheless, the Solicitor repeated his submission at the outset of the Tribunal hearing. He supported it by reference to the website of the legal firm of which the Member was a partner. The website indicated that the Member had served on the Family Law Issues Committee of the Law Society and had been an examiner for the Specialist Accreditation Board operated by the Law Society.

21. [77]

    The following exchange then took place:

22. [78]

    Despite being told that the Member had no relationship as an employee or contractor with the Law Society, and despite having apparently not pressed his objection, the Solicitor submitted on his appeal to this Court that the Tribunal Member should have declined to sit on the Tribunal and that her failure to do so constituted a denial of procedural fairness. The Solicitor relied on precisely the same material as he had when asserting to the Tribunal that the member must have been paid for her services by the Law Society.

23. [79]

    This Court has held that the Administrative Decisions Tribunal, the predecessor to the Tribunal, was not a “court” for the purposes of s 77(iii) of the Constitution. [57] The Tribunal may well be in the same position. Nonetheless, the test for apprehended bias is that which applies to a court. The test is:

24. [80]

    The application of the test to a decision-maker other than a court may have to take account of the statutory functions, procedures and composition of the decision-maker, in this case the Tribunal. [60] It is not necessary to explore in the present case how factors such as these might affect the test for apprehended bias as applied to a member of the Tribunal.

25. [81]

    A fair reading of the transcript of the Tribunal hearing suggests that the Solicitor, upon being informed that the Member had no employment or contractual association with the Law Society, effectively withdrew his application that the Member should disqualify herself. On this basis, he waived any complaint he might have had on the ground of apprehended bias, at least in the absence of evidence that the Member had some additional undisclosed association with the Law Society. [61]

26. [82]

    The more fundamental answer to the Solicitor’s submissions in this Court is that there is no evidence to support the factual foundation for his claim of apprehended bias. The claim was founded on the asserted existence of an employment or remunerative contractual arrangement between the Member and the Law Society. The Member stated that there was no such relationship and there was no evidence to suggest that her statement was not accurate. The Solicitor should not have maintained his submission in this Court.

27. [83]

    The Solicitor’s contention based on apprehended bias fails.

28. [84]

    The Solicitor submitted that the contents of the Letter amounted to criticism of “a judicial arm of government” exercising its powers of judicial review over decisions made by another officer in government, namely the Deputy Commissioner of Taxation. Such criticism, so he argued, is integral to the system of responsible and representative government enshrined in the Constitution. It is therefore protected by the implied freedom of communication on governmental and political matters established by Lange v Australian Broadcasting Corporation, [62] Coleman v Power, [63] and other decisions of the High Court. The Solicitor maintained that he did not lose the protection of the implied freedom merely because his language was offensive or insulting to the judicial officer concerned. Indeed in his oral submissions to this Court, the Solicitor went so far as to assert that the Lange principle permitted a solicitor to communicate directly with a Judge and to make whatever allegations about the Judge’s conduct as the solicitor saw fit.

29. [85]

    In McCloy v New South Wales, [64] the joint judgment of four members of the High Court stated the following propositions derived from Lange and Coleman: [65]

30. [86]

    The implied freedom does not protect a personal right. As the joint judgment in Unions NSW v State of New South Wales explained: [66]

31. [87]

    The Solicitor approached the constitutional issue by focussing on the contents of the Letter. He relied on Kirby J’s dissenting judgment in APLA Ltd v Legal Services Commissioner of New South Wales [67] for the proposition that the Letter incorporated comments on the workings of a Chapter III court and thus was a communication on governmental or political matters. The Solicitor’s submissions started from the wrong point.

32. [88]

    The first question that must be asked is whether the concept of “professional misconduct”, as a finding necessary for the imposition of disciplinary sanctions on a legal practitioner, effectively burdens the freedom of communication on governmental or political matters. The difficulty for the Solicitor’s contention is that the concept of professional misconduct, whether arising under the common law or statute, is not concerned with communications on governmental or political matters. This can be seen from two descriptions of “professional misconduct” quoted by the Tribunal in its reasons.

33. [89]

    In Kennedy v The Council of the Incorporated Law Institute of New South Wales, [68] Rich J said that:

34. [90]

    A more recent description was given by McClellan CJ in CL in Bechara v Legal Services Commissioner: [69]

35. [91]

    These descriptions of “professional misconduct” and the definition in s 497(1) of the 2004 Act [70] demonstrate that the concept is not concerned with communications on governmental or political matters. It is concerned with improper or incompetent behaviour by a legal practitioner which casts doubt on the practitioner’s fitness to engage in legal practice. Neither the Council nor the Solicitor considered whether a legal practitioner’s communications on political or governmental matters are capable of being characterised as professional misconduct. If that is the case, the concept may have to be read down to accommodate the implied constitutional freedom.

36. [92]

    It is, however, not necessary for the purposes of the present case to demarcate the outer limits of professional misconduct. The allegation against the Solicitor is that by making the allegations about the Judge in the Letter, he was guilty of professional misconduct. To impose disciplinary sanctions on a legal practitioner who improperly makes allegations that a Judge has misconducted himself or herself in a particular case does not burden the freedom of communication on governmental or political matters.

37. [93]

    The authorities interpreting the Lange principle have held that the implied freedom does not extend to public criticism of the conduct of a judicial officer. Neither the Council nor the Solicitor referred to these authorities in their submissions on the appeal.

38. [94]

    In O’Shane v Harbour Radio Pty Ltd, [71] one issue was whether publishers of allegedly defamatory comments about a judicial officer were entitled to defend the proceedings by pleading the truth of the imputations. In addressing that issue, Beazley P considered whether the publications were in respect of political or governmental matters. Her Honour said this: [72]

39. [95]

    The comments made by the Solicitor in the present case were even further removed from a communication on governmental or political matters. They were written comments made in an ex parte communication to the Judge personally and concerned his Honour’s handling of a matter in which the Solicitor represented one of the parties. In the present state of the law, to construe “professional misconduct” as applying to communications of this kind does not effectively burden the implied constitutional freedom of communication on political or governmental matters.

40. [96]

    In view of this conclusion, it is not necessary to consider whether, if the definition of professional misconduct effectively burdened the implied freedom of political communication, the law is compatible with the maintenance of the constitutionally prescribed system of representative government. Since neither the Council nor the Solicitor devoted attention to this issue, it is not appropriate to consider it further.

41. [97]

    The Solicitor’s constitutional argument must be rejected.

42. [98]

    The Solicitor criticised the Tribunal’s finding that he had engaged in professional misconduct on two principal grounds. The first was that the Tribunal failed to apply what the Solicitor described as the “Briginshaw standard of proof”. The second was that “professional misconduct” is confined to conduct by a solicitor that infringes precepts of “honesty or fair dealing”. On this basis, so the Solicitor argued, “professional misconduct” cannot extend to personal communications made by a solicitor to a Judge who has decided a case in which the solicitor has appeared, even if the solicitor not only uses intemperate language but accuses the Judge of bad faith and dishonesty. Neither of these two submissions has substance.

43. [99]

    In Briginshaw v Briginshaw, [73] Dixon J in a celebrated passage said that:

44. [100]

    The Briginshaw principle, now incorporated in statute, is concerned with the proof of facts in issue in proceedings. [75] In the present case, there was no dispute as to the material facts. The Solicitor admitted sending the Letter to the Judge in the manner described above and, of course, there was no dispute as to the contents of the Letter. There was no occasion for the Tribunal to consider or apply the Briginshaw principle.

Is the alleged conduct capable of constituting professional misconduct?

1. [101]

   There are many statements in the authorities indicating that there are no precise limits to conduct that may warrant the imposition of disciplinary sanctions on a legal practitioner. For example, in the passage from Bechara v Legal Services Commission quoted earlier, [76] McClellan CJ at CL cited Clyne v Bar Association of New South Wales [77] for the proposition “that there are no fixed categories of professional misconduct”.

2. [102]

   In Clyne, the High Court upheld a finding of grave professional misconduct against a barrister. Among other things, the barrister had caused criminal proceedings to be instituted against a solicitor as a means of forcing the solicitor to cease to act in proceedings against the barrister’s client. The High Court distinguished between conventional “rules” (now much diminished in scope with the application of competition principles to the legal profession) and “fundamental” rules. The latter: [78]

3. [103]

   That professional misconduct is not confined in the manner suggested by the Solicitor is not surprising once regard is paid to the interests that must be protected. Spigelman CJ in New South Wales Bar Association v Cummins [79] identified four interrelated interests involved in the regulation of the conduct of legal practitioners: [80]

4. [104]

   Spigelman CJ also quoted the well-known observation of Kitto J in Ziems v The Prothonotory of the Supreme Court of New South Wales: [81]

5. [105]

   While both Cummins and Ziems involved the conduct of barristers, the observations in those cases apply with equal force to the conduct of a solicitor appearing as an advocate on behalf of a client in judicial proceedings. The concept of “professional misconduct” as applied to solicitors must also be informed by the Solicitors Rules in force at any given time. As has been seen, the “fundamental ethical duties” of solicitors laid down in the 2013 Rules include a requirement that solicitors be “courteous in all dealings in the course of legal practice”. [82] In addition, a solicitor is not to engage in conduct which is likely in a material degree to diminish the public confidence in the administration of justice or bring the profession into disrepute, even if the solicitor has not acted dishonestly or in a manner that necessarily infringes “precepts of fair dealing”. [83] These rules indicate that a private communication between a solicitor-advocate and a Judge who has heard a case in which the solicitor has appeared may constitute professional misconduct. This may be the case, for example, if the solicitor makes unsubstantiated allegations of bad faith and dishonesty against a presiding Judge arising out of proceedings in which the solicitor has been involved.

6. [106]

   The authorities recognise that offensive and derogatory comments by a solicitor may amount to professional misconduct. In Ellis v Law Society, [84] a solicitor conducted “inappropriate, offensive and derogatory correspondence directed to and about the Law Society, [a litigant], members of the judiciary and others”. Leveson LJ, with whom Lloyd Jones J agreed, dealt with the allegations as follows: [85]

7. [107]

   I agree that Judges can generally be expected to be robust, and that care should be taken before disciplinary action is taken based solely on offensive or derogatory comments made by a legal practitioner to or about a Judge, whether in court or by communications outside the courtroom. However, I also agree that, depending on the content, communications may cross the line and be capable of constituting professional misconduct.

8. [108]

   If, however, Leveson LJ was suggesting that offensive and derogatory comments made by a practitioner to or about a Judge can constitute professional misconduct only if the communication causes detriment to the client, I do not agree. A case of that kind may be the clearest example of a practitioner “crossing the line”. But the interests identified by Spigelman CJ in Cummins indicate that the line may be crossed even where the client’s interests are not necessarily adversely affected. The present case illustrates the point, since the Letter was sent after the Judge had delivered judgment, albeit as a seriously misguided effort by the Solicitor to persuade the Judge to make a costs order more favourable to the Solicitor’s client. Yet the contents of the Letter, particularly the accusations of bad faith and dishonesty in the preparation of the judgment, are clearly inconsistent with the minimum degree of trust and civility between legal practitioners and the judiciary that is essential to the administration of justice and the integrity of the judicial system.

9. [109]

   The Tribunal characterised the terms of the Solicitor’s Letter as “grossly offensive”. [87] The Tribunal then said that it was a “matter of judgment” whether the Letter constituted professional misconduct. It concluded that the Solicitor was guilty of professional misconduct because solicitors are under “a duty to exhibit appropriate respect for judicial officers and their decisions…out of regard for the institutions they represent”. The Tribunal invoked the need to maintain public confidence in those institutions, although it did not explain precisely how the Letter undermined confidence in the judicial system. The Tribunal also expressed itself satisfied that the Solicitor had departed so far from the conduct expected of a solicitor of good reputation as to be guilty of professional misconduct. [88]

10. [110]

    In my view, if a legal practitioner is accused of professional misconduct by reason of a communication to or about a judicial officer, more is required of the Tribunal than simply to characterise the practitioner’s conduct as “grossly offensive” and asserting that the conduct departs from the standards expected of a solicitor. These are conclusions that should be supported by an explanation of the reasons why the conduct amounts to a serious departure from the expected standards.

11. [111]

    It is true that the Tribunal’s task was made more difficult because the Council did not present its case with particular clarity and the nature of the Solicitor’s conduct was somewhat obscured by the Council’s use of the expression “grossly discourteous behaviour” to describe the conduct. However, the gravamen of the Council’s case was that the Solicitor alleged in the Letter that the Judge had acted vindictively, may not have written the judgment “at all”, and made the decision “without good faith and with bias”. These allegations necessarily suggested that the Judge breached the most fundamental duties he owed as a judicial officer, acted dishonestly (by passing off a judgment as his own that he had not written), acted in bad faith, and displayed actual bias towards a litigant and vindictiveness to the Solicitor. In addition, the Letter demanded that the Judge alter orders made in open Court and threatened that if his Honour did not do so, he would suffer embarrassment as a result of the Solicitor’s actions.

12. [112]

    The contents of the Letter must be judged on their face. There is not a shred of evidence advanced in the Letter to support any of the allegations of impropriety made against the Judge. The “discourtesy” and ”offensiveness” lay both in the making of scurrilous allegations by the Solicitor about the Judge’s conduct, and the manifest absence of any material that could possibly justify making the allegations in any forum, let alone in a private communication to the Judge. The Letter showed that the Solicitor was prepared to make allegations that the judicial process had been undermined by improper behaviour of the Judge, without any material that could justify any such allegation. Moreover, the Letter was “discourteous” and “offensive” because it implied that the Judge would be prepared to alter costs orders because of a threat that he could be embarrassed by the Solicitor’s “legitimate” actions.

13. [113]

    In my view, the Tribunal was entitled to find that the Solicitor was guilty of professional misconduct on the basis of the contents of the Letter. The Tribunal Reasons lack the detail that might have been expected, but the findings are consistent with the Tribunal analysing the case in the way I have explained. The finding of professional misconduct was open because the Solicitor made allegations of serious misconduct against a judicial officer before whom the Solicitor had appeared, without providing any supporting evidence. Moreover, the Solicitor made the allegations in the context of an attempt, coupled with threats, to persuade the Judge to alter orders he had made in the proceedings just concluded. Despite the lack of detail in the particulars provided by the Council, the Tribunal’s findings, understood in this way, are consistent with the particulars upon the basis of which the case was conducted.

Jurisdictional Error

1. [114]

   The Solicitor’s submission founded on non-compliance with s 537(2) of the 2004 Act, overlooked evidence that was before the Tribunal. The evidence established that on 5 February 2015, the Professional Conduct Committee of the Council resolved that it was satisfied that there was a reasonable likelihood that the Solicitor would be found to have engaged in professional misconduct, and that proceedings should be instituted in the Tribunal pursuant to s 537(2) of the 2004 Act. The evidence also established that the Council had delegated to the Professional Conduct Committee all relevant powers conferred by Chapter 4 of the 2004 Act.

2. [115]

   Since the Professional Standards Committee had the letter before it, and there was no dispute that the Solicitor had sent the Letter, it was open to the Committee to be satisfied that there was a reasonable likelihood that the Tribunal would find that the Solicitor engaged in professional misconduct.

Costs of the disciplinary application

1. [116]

   As I have noted, the Tribunal made a costs order against the Solicitor in reliance on s 566 of the 2004 Act. Section 566(1) provided that the Tribunal had to make a costs order against a legal practitioner found to have engaged in professional misconduct unless special circumstances existed. As I have also noted, it was common ground on the appeal that the Tribunal overlooked that s 566 of the 2004 Act had been repealed on 1 January 2014. [89]

2. [117]

   The Council submitted that the error was immaterial because the correct costs provision is Sch 5 Pt 4 cl 23 of the NCAT Act, which is in substantially identical terms to s 566(1) of the 2004 Act. Accordingly, the Council invited the Court to exercise what it submitted is the power conferred by s 109 of the Supreme Court Act. Section 109 provides that if the Court dismisses an appeal, but varies the order the subject of the appeal, and declares the variation to be a minor variation, the order is taken to be an order of the court or tribunal that made the original order.

3. [118]

   The first question is whether Sch 5 Pt 4 cl 23 of the NCAT Act applies to the disciplinary application determined by the Tribunal. Clause 23 is in Div 4 of Pt 3. Other provisions in Div 4 expressly refer to the functions of the Occupational Division of the Tribunal in dealing with matters under the Uniform Law. These provisions clearly apply to matters to be heard and determined by the Tribunal under the 2004 Act in accordance with the transitional provisions, since a reference to the Uniform Law in the NCAT Act includes a reference to the 2004 Act. [90]

4. [119]

   Curiously enough, cl 23 does not refer expressly to the Uniform Law or the 2004 Act. Nonetheless, it would make little sense if other provisions in Div 4 of Pt 3 applied to proceedings to be determined under the 2004 Act, but cl 23 did not apply. When read in the context of Div 4, it seems to me that the intention is that cl 23 should govern the question of costs in a disciplinary application that falls to be determined under the 2004 Act by virtue of the transitional provisions in the Uniform Law. I therefore consider that the Council correctly conceded that the Tribunal should have applied Sch 5 Pt 4 cl 23 of the NCAT Act instead of s 566(1) of the 2004 Act when determining costs.

5. [120]

   The next question is what this Court should do about the error. In my view, it is by no means clear that s 109 of the Supreme Court Act confers power on this Court to vary an order that is the subject of an appeal. Section 109 plainly confers power on the Court to declare a variation of an order to be minor and to specify the consequences of such a declaration. But it would seem that the power to vary an order has to found elsewhere.

6. [121]

   In any event, the Tribunal simply ordered the Solicitor to pay the Council’s costs on a party and party basis. The order makes no reference to s 566 of the 2004 Act or any other statutory power supporting the order. It is not clear why it is necessary to vary the order made by the Tribunal to refer expressly to Sch 5 Pt 4 cl 23 of the NCAT Act.

7. [122]

   The Council should have filed a Notice of Contention seeking to uphold the costs order on a basis other than that relied on by the Tribunal. Notwithstanding the absence of a Notice of Contention, justice will be done if the Court simply dismisses the appeal. Had the Tribunal correctly identified Sch 5 Pt 4 cl 23 of the NCAT Act as the provision governing the award of costs, it is inevitable that it would have reached the same conclusion. Section 75A(10) of the Supreme Court Act empowers the Court to:

8. [123]

   In the circumstances I have described, the appropriate order is for the Court to dismiss the Solicitor’s appeal, thus allowing the costs order to stand.

Orders

1. [124]

   The following orders should be made:

   1. (1)

      Appeal dismissed.

   2. (2)

      The Appellant pay the Respondent’s costs of the appeal.