Sullivan v Council of the Law Society of New South Wales

1. [1]

   By amended summons filed on 21 February 2017 the solicitor-plaintiff appeals to this Court under sch 5, cl 2 Civil and Administrative Tribunal Act 2013 (NSW) (“the NCAT Act”) from a “profession decision” made by the Civil and Administrative Tribunal in its Occupational Division (the Tribunal).

2. [2]

   By its decision on 4 January 2017 the Tribunal found the solicitor guilty of professional misconduct, reprimanded him, and suspended his practising certificate “until such time as he has complied with the notice issued to him on 13 July 2015 pursuant to s 660 of the [now repealed Legal Profession Act 2004 (NSW)]”.

3. [3]

   The Tribunal was constituted by the Honourable Brian Tamberlin QC (a retired Federal Court Judge), a Principal Member of the Tribunal, Senior Member C Ludlow and General Member E Hayes.

4. [4]

   The interlocutory dispute for my determination raises the question whether the proceedings, which the plaintiff initiated in the Administrative Law List of the Common Law Division, should be removed to the Court of Appeal. The defendant, the Council of the Law Society of New South Wales (the Law Society), argues that such an order should be made under s 51 Supreme Court Act 1970 (NSW) having regard to the provisions of s 48 of that Act. The solicitor points out that no motion seeking that relief has been brought forward by the Law Society, but accepts that this is what is in dispute. To crystallise the issue, the solicitor filed the amended summons pursuant to orders made by Davies J, on 14 February 2017. The sole substantive amendment to the original summons is the inclusion of prayers seeking a declaration that the Court in its Common Law Division has jurisdiction to determine the proceedings, and an order that the proceedings be heard and disposed of in the Administrative Law List of the Common Law Division.

5. [5]

   The resolution of this question turns substantially upon the meaning of s 48 Supreme Court Act 1970 (NSW) which I set out in full:

6. [6]

   I emphasise in particular that the definition of “specified tribunal” in s 48 (1)(a)(viii) (subparagraph (viii)) extends to the Tribunal when exercising functions, or purporting to exercise functions, for the purpose of the Legal Profession Uniform Law (NSW). Although the matter involving the solicitor arose under the former legislation, it is common ground that the matter is continued by force of the transitional provisions in the Uniform Law.

7. [7]

   As Mr Maddigan of counsel points out in his written submissions for the Law Society, a reference in the NCAT Act to the Uniform Law includes a reference to the former Act, the Legal Profession Act 2004 (NSW). Under sch 5, pt 6, cl 29 (4) NCAT Act, an appeal against the decision “for the purpose of the Legal Profession Uniform Law (NSW)” is an appeal to which s 75A of the Supreme Court Act 1970 (NSW) applies.

Submissions

1. [8]

   Mr McQuillan of counsel, who appears for the solicitor, argues that s 48(2) of the Act operates to assign the Court’s business to the Court of Appeal only where the “specified tribunal” is constituted by one or more judges. He referred to Patterson and James v Public Service Board [1984] 1 NSWLR 237 at 239; Daykin v SAS Trustee Corporation and Ors (2001) 51 NSWLR 328 at 331[16] – [20]; Puglisi v Administrative Decisions Tribunal of New South Wales Appeal Panel (2001) 52 NSWLR 350 at 352[1].

2. [9]

   In the alternative, he submits that the language of s 51(1) of the Act, and in particular paragraph (3) thereof, makes clear that the proceedings having been commenced in the Common Law Division may be continued and disposed of here, subject to the power in the Court of Appeal, or the divisional court, to remove the proceedings. He advances discretionary reasons why it is expedient in the interests of justice for the matter to continue in the Common Law Division and refers to Provident Capital Ltd v Hazaran Pty Ltd & Michael Petrovic Lenin [2002] NSWSC 825 (per Bergin J, as her Honour then was) and Satchi & Satchi Australia Pty Ltd & Ors v Zeaiter Corporate Holdings Pty Ltd [2008] NSWSC 411 (per Hoeben J, as his Honour then was).

3. [10]

   Mr Maddigan argues that the clear words of subparagraph (viii) and the almost invariable practice of the Court mean that disciplinary matters concerning lawyers are assigned, and as a matter of practice dealt with in the Court of Appeal. He says “almost invariable practice” because his diligent researchers have uncovered one case only, BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146 determined by Adamson J, dealt with in the Common Law Division. It is apparent that neither party to that case raised the question of the appropriate assignment of the Court’s business. Mr Maddigan also points out that, unusually, the orders made by the Tribunal in that case were not disciplinary. I interpolate, however, the language of subparagraph (viii) does not turn upon the disciplinary nature of the Tribunal’s orders per se. He seeks an order without motion, as I have said, that the matter be removed to the Court of Appeal: see r 39.1 Uniform Civil Procedure Rules 2005 (NSW). He argues that subparagraph (viii) is unqualified. It does not state that the Tribunal is only a “specified tribunal” when constituted at least in part by a Judge.

4. [11]

   Alternatively by reference to sch 4, div 4, cl 15 of the NCAT Act, Mr Maddigan argues that Mr Tamberlin QC was at the relevant time a “senior judicial officer” because he is a retired judge of the Federal Court, which has “an equivalent status (for the purpose of Pt 9 Constitution Act 1902 (NSW)) to the Supreme Court”. By clause 17, a Division Member has a judicial qualification, inter alia, if the Member is a former senior judicial officer.

Decision

1. [12]

   I am of the opinion that the Law Society’s arguments as to the meaning, or interpretation, of subparagraph (viii) are to be preferred. The language is clear. It is plain that the Tribunals described in subparagraphs (vi) and (vii) are “specified tribunals” only if the person exercising a function under any Act is a judge or member as defined by s 48(1)(b)(for the purpose of subparagraph (vi)) or in the case of a Tribunal (for the purpose of subparagraph (vii)), the Tribunal or other body is constituted by one or more Judges or Associate Judges of this Court, or Judges or Members of the Land and Environment Court, the Dust Diseases Tribunal or the District Court. The same requirement is not expressed to apply to the Tribunal when exercising functions under the Uniform Law. There is no occasion for interpreting the plain language of subparagraph (viii) by incorporating the words of limitation from either subparagraph (vi) or subparagraph (vii).

2. [13]

   Whenever the Tribunal is exercising functions or purporting to exercise functions for the purpose of the Uniform Law it is a “specified tribunal” however constituted, and matters before it or dealt with by it as described in s 48(2), including appeals from its exercise of those functions, are assigned to the Court of Appeal.

3. [14]

   I do not think that the authorities referred to by Mr McQuillan make any difference to this outcome. Patterson and James was a statutory appeal from the Government and Related Employees Appeal Tribunal. It discusses the principle “that when the legislature without more confers jurisdiction on a court to hear and determine a matter it imports the ordinary incidents and procedures of the court including its relevant rules” (citations omitted) (at 239 by Moffitt P). Learned counsel used this principle to argue that the NCAT Act by providing for an appeal to the Supreme Court took the Court as it is. Accordingly, an appeal well commenced in the Common Law Division by virtue of s 51 of the Act ought to continue to finality here. I do not think the principle applies. Moffitt P said:

4. [15]

   Daykin was concerned with an appeal from a decision of the Appeal Panel of the former Administrative Decisions Tribunal constituted in part by its President, his Honour Judge O’Connor. Dunford J’s decision turned on subparagraph (vii) of the definition of “specified tribunal”. The solicitor placed particular reliance upon the following passage in Dunford J’s judgment which states his Honour’s conclusion after a review of authorities concerning the operation of s 48 of the Act (at 331 [16]):

5. [16]

   One may accept Dunford J’s identification of the clear legislative intent of s 48 that appeals from a body or tribunal constituted in part as defined in s 48(1)(b), and the exercise of the Supreme Court’s supervisory jurisdiction in relation to such a body or Tribunal, are assigned to the Court of Appeal. However, that is not an exhaustive statement of the operation of s 48. The clear legislative intention must give way to the express words of the section. Subparagraph (viii) creates a separate category from those which precede it. I repeat all appeals from the Tribunal exercising or purporting to exercise its functions under the Uniform Law, howsoever the Tribunal is constituted, are assigned to the Court of Appeal.

6. [17]

   It is unnecessary for me to decide whether the Honourable Brian Tamberlin QC is a former senior judicial officer for the purpose of sch 5 of the NCAT Act. I note in passing that the question for the purpose of the NCAT Act is whether the person has a “judicial qualification”, not whether the person is a current or former “senior judicial officer”. A person may possess a judicial qualification for the purpose of sch 5, div 4 of the NCAT Act without being a current or former senior judicial officer. In any event, in my opinion, the question would turn not upon the interpretation of the NCAT Act but upon s 48(1)(b) of the Supreme Court Act 1970 (NSW), were it to arise at all. That definition does not on its face seem to apply to federal judges or judicial officers; one may add, why would it?

7. [18]

   This determination does not fully resolve the dispute. There remains the question of whether in the exercise of my discretion I should remove the case to the Court of Appeal. I have decided that I should. I accept the argument that it is the almost invariable practice of the Court that disciplinary matters involving legal practitioners are determined in the Court of Appeal and not in the Divisions, notwithstanding that some matters involving legal practitioners are assigned to the Common Law Division: see Part 65A, r 2 Supreme Court Rules 1970 (NSW). This rule reinforces the practice of the Court that the powers of the Court with respect to the discipline of the legal profession are to be exercised by the Court of Appeal.

8. [19]

   The proceedings are at a fairly early stage and no time will be lost or costs wasted by an early removal to the Court of Appeal. Moreover, from the grounds stated in the Summons, and the decision of the Tribunal, it is clear that the solicitor raises questions of law about the interpretation of the provisions of the former Act involved in his case, going to the validity of the Notice served on him requiring him to provide information. These are matters which are appropriate to be dealt with in the Court of Appeal as their resolution may be of precedential value.

9. [20]

   My orders are:

   1. (1)

      Under s 51(1)(b) Supreme Court Act 1970 (NSW), remove these proceedings into the Court of Appeal;

   2. (2)

      List the matter for directions before the Registrar of the Court of Appeal at 9 a.m. on Thursday 27 April 2017;

   3. (3)

      The parties’ costs of the application before me are costs in the cause.