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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | LP9 v Council of the Law Society of the Australian Capital Territory |
Citation: | [2024] ACTSC 116 |
Hearing Date: | 2 April 2024 |
Decision Date: | 19 April 2024 |
Before: | McWilliam J |
Decision: | (1) The appellant is to file and serve his evidence by 30 April 2024. (2) The respondent is to file and serve its evidence by 14 May 2024. (3) The appellant is to file and serve any evidence in reply by 20 May 2024. (4) The matter is listed in the appeal index list at 2:30pm on 21 May 2024. |
Catchwords: | PRACTICE & PROCEDURE – appeal from registrar – timetabling orders – where substantive proceeding involves appeal from a refusal to renew a practising certificate made under the Legal Profession Act 2006 (ACT) – where appeal involves a rehearing of the application anew – who should file evidence first |
Legislation Cited: | Court Procedures Rules 2006 (ACT) rr 5050, 5051, 6256 Legal Profession Act 2006 (ACT) ss 12, 81(1)(a), 37(2), 41, 42, 43, 44, 55, 56, 587 Legislation Act 2001 (ACT) s 140 Supreme Court Act 1933 (ACT) 11(2), 11(4)(b) |
Cases Cited: | Barlowv Law Society of the Australian Capital Territory [2013] ACTSC 68; 272 FLR 470 Builders Licencing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 Cory Brothers & Co Ltd v Hughes [1911] 2 KB 738 Council of the Law Society of the Australian Capital Territory v LP 12 [2018] ACTCA 60; 14 ACTLR 45 Ezekiel-Hart v Law Society of the Australian Capital Territory [2012] ACTSC 103 Harris v Caladine (1991) 172 CLR 84 Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110 Phillips v The Commonwealth (1964) 110 CLR 347 Tobes v Fleet [2011] ACTSC 122 |
Parties: | LP9 ( Appellant) ACT Law Society ( Respondent) |
Representation: |
Counsel S Russell-Uren ( Appellant) D Moujalli; N Olsen ( Respondent) |
| Solicitors Aulich Civil Law ( Appellant) Thomson Geer ( Respondent) |
File Number: | SCA 3 of 2024 |
Decision Under Appeal:
| Court: ACT Supreme Court Registrar Before: Senior Deputy Registrar Gatehouse Date of Decision: 5 March 2024 |
McWILLIAM J:
1․ On 15 December 2023, the Council of the Law Society of the Australian Capital Territory (Law Society) made a decision not to renew the legal practising certificate of LP9 (appellant). In an information notice provided to the appellant on 15 December 2023, the reason stated was that it was satisfied that the appellant was “not a fit and proper person to continue to hold the certificate”: s 44 of the Legal Profession Act 2006 (ACT) (LP Act).
2․ LP9 has appealed the Law Society’s decision, through a notice of appeal filed 12 January 2024.
Present application
3․ This interlocutory application concerns timetabling orders made by a registrar of the ACT Supreme Court on 5 March 2024. The orders were:
1. The appellant is to file and serve his evidence by 2 April 2024.
2. The respondent is to file and serve its evidence by 23 April 2024.
3. The appellant is to file and serve any evidence in reply by 30 April 2024.
4. The matter is listed in the Appeal Index List on 7 May 2024 at 2:30pm.
4․ By notice of appeal filed 8 March 2024, the appellant has appealed those directions, arguing that they place the onus of establishing the facts on the appellant rather than the respondent. That is part of a broader argument about onus in the substantive proceedings, which is the material impetus for challenging what would otherwise be a straightforward timetable imposed by the registrar.
Relief sought
5․ The orders that the appellant sought on appeal place the respondent as the party filing evidence first, with the appellant responding to what has been filed. They are as follows:
1. The orders made by Registrar Gatehouse are vacated;
2. The Respondent is to file a pleading establishing why the Appellant is not a fit and proper person to continue holding a practising certificate within 7 days;
3. The Appellant is to file a pleading in response within 14 days;
4. The Respondent is to file and serve an evidence upon which it intends to rely within 21 days;
5. The Appellant is to file and serve any evidence upon which he intends to rely within 28 days;
6. The proceedings are listed for hearing on a date to be fixed.
7. The parties have liberty to apply on 3 days’ notice.
Applicable principles on an appeal from a registrar’s decision
6․ The present appeal of the registrar’s decision is made pursuant to r 6256 of the Court Procedures Rules 2006 (ACT)(Rules), which provides for an appeal to a single judge of the Court. Rule 6256(4) provides that the “appeal is a rehearing of the matter anew”. That has been interpreted to mean that the review process is an appeal de novo: Ezekiel-Hart v Law Society of the Australian Capital Territory [2012] ACTSC 103 (Ezekiel-Hart)at [18]-[20]per Refshauge J.
7․ Due to the matter being heard afresh or “anew”, the Court is not constrained by appellate principles, such as the necessity to first find error on appeal: Ezekiel-Hart at [19] citing Harris v Caladine (1991) 172 CLR 84 at 96; Tobes v Fleet [2011] ACTSC 122 at [4].
Applicable principles and rules on an appeal of the Law Society’s Decision
8․ A complicating factor arises from the fact that the substantive appeal is brought under s 81(1)(a) of the LP Act.
9․ Again, such an appeal is also to be conducted on a de novo basis, in that the Court stands in the shoes of the Law Society as the original decision-maker for the purpose of determining the appeal: Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110 (Legal Practitioner)at [24], [27].
10․ As a consequence:
(a) The appellant does not need to point to error in the decision under appeal: Barlow v Law Society of the Australian Capital Territory [2013] ACTSC 68; 272 FLR 470 at [53];
(b) The same statutory provisions governing the original function of the Law Society (in relation to grants, renewals and terminations) apply: Legal Practitioner at [27];
(c) The ultimate question for the Court is whether it is satisfied that the appellant is a fit and proper person to hold a practising certificate: Legal Practitioner at [123].
Jurisdictional constraints
11․ The appeal of the decision must be heard by a Full Court, as seen in s 11(2) of the Supreme Court Act 1933 (ACT)(SC Act), which is set out as follows:
11 Exercise of jurisdiction—legal practitioners
…
(2) The jurisdiction of the court in a proceeding in relation to the grant, renewal, amendment, suspension or cancellation of a practising certificate under the Legal Profession Act 2006 must be exercised by a Full Court.
…
12․ However, that does not prevent a single judge from giving directions of an interlocutory kind: s 11(4)(b) of the SC Act.
Applicable rules
13․ These matters inform the procedural rules applying to the dispute and the disposition of this appeal from the registrar. Although the proceeding is required to be heard by a Full Court (that is, a court of original jurisdiction), the procedural rules applying to an appeal of the Law Society’s decision are those which apply to an appeal to the Supreme Court from an order of a court or tribunal: r 5051 Rules. That arises by the following extended definitions by operation of r 5050:
(a) tribunal includes the Law Society, because it falls within the words “any entity (other than a court) from which an appeal may be made to the Supreme Court” and is expressly contemplated as a “court or tribunal” at item 5 of Table 5051; and
(b) order includes “a decision” of a court or tribunal.
Who should file their evidence first?
14․ The parties accepted that the ultimate question of onus on the substantive appeal could only be determined by the Full Court, and that question is expressly reserved for the final hearing. However, that still leaves a timetabling dispute, which involves determining who should file their evidence first.
15․ The appellant submitted that it must be the entity moving the termination of the practising certificate, as it was for the Law Society to justify its decision not to renew LP9’s certificate. The Law Society submitted that it was for the practitioner to satisfy the Court (standing in the shoes of the original decision maker) that the applicant remained eligible to hold a practising certificate. Accordingly, the same obligations arose as those when a practitioner applies for grant or renewal of a practising certificate. It is the legal practitioner’s responsibility to demonstrate that they are “fit and proper” to practise law.
16․ For the purposes of this interlocutory procedural decision, I agree with the Law Society’s interpretation of the statute. The reasons for that view (following below) incorporate the submissions made by each party. Essentially, I have found that the approach for which the appellant contended misunderstands the meaning of s 44(4) of the LP Act when that section is read in the context of the LP Act as a whole, as the approach must be, pursuant to s 140 of the Legislation Act 2001 (ACT).
17․ When an application for renewal is refused, the process involved is not an active termination or cancellation by the Law Society that must then be justified on appeal. Rather, a refusal to renew a certificate is a decision made in response to an application for renewal under s 41 of the LP Act by the legal practitioner.
18․ When such an application for renewal is made, as will be seen, there is a clear statutory requirement on the applicant legal practitioner to disclose any matter affecting the legal practitioner’s eligibility or fitness to hold a local practising certificate in making an application for renewal. That requirement does not change when the Full Court is substituted as the relevant decision-maker on appeal. That indicates that the appellant should file his evidence on the appeal first.
The governing statutory provisions of the LP Act and associated regulations
19․ Section 41 of the LP Act is the appropriate starting point. It creates the right for a legal practitioner to apply for the renewal of a local practising certificate. It suffices to state subsections (1) and (2), which provide:
41 Application for grant or renewal of local practising certificate
(1) An Australian lawyer may apply to the relevant council for the grant or renewal of a local practising certificate if the lawyer is eligible to apply for the grant or renewal.
…
(2) An Australian lawyer is eligible to apply for the grant or renewal of a local practising certificate if the lawyer complies with the regulations and legal profession rules in relation to eligibility for the practising certificate and—
…
20․ The remainder of the section deals with matters pertaining to eligibility and is immaterial to the question of construction here.
21․ Section 587 of the LP Act enables the relevant council to approve forms for use. Section 42(1) then specifically requires that such a form be used (emphasis added):
42 Approved form for grant or renewal application for practising certificates
(1) An application for grant or renewal of a practising certificate must be in a form (an approved form) approved under section 587 by—
(a) for a barrister practising certificate—the bar council; or
(b) for an unrestricted practising certificate or restricted practising certificate—the law society council.
(2) To remove any doubt, an approved form may require the applicant to disclose matters that may affect the applicant's eligibility for the grant or renewal of a local practising certificate or the question whether the applicant is a fit or proper person to hold a local practising certificate.
(3) An approved form may indicate that particular kinds of matters previously disclosed in a particular way need not be disclosed for the purposes of the current application.
(4) Subsections (2) and (3) have effect despite the Legislation Act, section 255 (6).
22․ The form approved by the Law Society as the relevant council here was in evidence, and it does include a requirement of the kind set out in s 42(2).
23․ Drawing from these sections, the statute mandates three things:
(a) First, that it is for the legal practitioner to apply for renewal (renewal does not automatically happen or continue);
(b) Second, that the applicant must use the form specified; and
(c) Third, that in using the form, the legal practitioner is required to disclose any matter that affects whether the applicant is a fit or proper person to hold a practising certificate.
24․ Section 43 of the LP Act deals with the timing of an application for renewal of a local practising certificate. It provides:
43 Timing of application for renewal of local practising certificate
(1) An application for the renewal of a local practising certificate must be made within the period prescribed by regulation.
(2) That period must be within the currency of the local practising certificate being sought to be renewed.
25․ That section may be relevant to the utility of the proceeding if it is not heard and determined before 1 July 2024, but it does not affect the present question.
26․ Section 44 of the LP Act is then in the following terms (emphasis added):
44 Grant or renewal of unrestricted or restricted practising certificate
(1) The law society council must consider an application that has been made for the grant or renewal of an unrestricted practising certificate or restricted practising certificate, and may—
(a) grant or renew the practising certificate; or
(b) refuse to grant or renew the practising certificate.
Note When granting or renewing a local practising certificate, the law society council may impose conditions on the certificate under s 47.
(2) However, the law society council—
(a) need not consider an application for grant or renewal of an unrestricted practising certificate or restricted practising certificate if—
(i) the application has not been made in accordance with this Act; or
(ii) the required fees have not been paid; and
(b) may refuse to grant or renew the practising certificate if the applicant has not complied with the criteria prescribed by regulation and the legal profession rules for the grant or renewal.
Note This Act is defined in the dictionary.
(3) The law society council must not grant an unrestricted practising certificate or restricted practising certificate unless satisfied that the applicant—
(a) was eligible to apply for the grant when the application was made; and
(b) is a fit and proper person to hold the certificate.
(4) The law society council must notrenew an unrestricted practising certificate or restricted practising certificate if satisfied that the applicant—
(a) was not eligible to apply for the renewal when the application was made; or
(b) is not a fit and proper person to continue to hold the certificate.
(5) The law society council must not grant or renew an unrestricted practising certificate or restricted practising certificate if—
(a) it considers the applicant’s circumstances have changed since the application was made; and
(b) the applicant would (having regard to information that has come to the law society council’s attention) not have been eligible to make the application when the application is being considered.
(6) This section does not affect any other provision of this Act that provides for the refusal to grant or renew an unrestricted practising certificate or restricted practising certificate.
Note 1 The law society council must not grant or renew a practising certificate for an insurable legal practitioner unless satisfied that the practitioner will be covered by an approved indemnity insurance policy (see s 311).
Note 2 See also s 62 (Refusal to grant or renew unrestricted or restricted practising certificate—failure to show cause etc).
(7) If the law society council grants or renews an unrestricted practising certificate or restricted practising certificate, the law society council must give the applicant—
(a) for the grant of a certificate—the practising certificate granted; or
(b) for the renewal of a certificate—the new practising certificate.
(8) If the law society council refuses to grant or renew an unrestricted practising certificate or restricted practising certificate, the law society council must give the applicant an information notice.
27․ The emphasised parts of the section draw attention to the key issue of dispute between the parties. The wording of s 44(4) refers to the council being “satisfied” about a matter. Such wording reflects an evaluation by the council, and the reaching of a state of satisfaction about the applicant, namely that the applicant “is not a fit and proper person”.
28․ Two things may be noted about that sub-section. The first is that it is not discretionary. It provides for an evaluation of a particular fact, and once the council reaches a state of satisfaction that such fact exists, the council has no option but to refuse to grant or renew the certificate.
29․ Secondly, the expression of the council’s concluded view about a person in the negative should not be misunderstood as having any greater consequence. The state of satisfaction to be reached is that the applicant is not fit and proper, as opposed to satisfaction that the applicant is fit and proper. However, that does not alter the process involved in forming a view about that fact, namely, of the applicant first disclosing any matters that might affect the council’s decision, and then, the council forming a conclusion. The applicant remains an applicant for renewal, and the obligation remains upon the applicant to put any matters of significance to their fitness before the council.
30․ Further support for that position is seen from s 37(2) of the LP Act, which provides:
37 Duration of local practising certificate
…
(2) A local practising certificate renewed under this Act is in force until the end of the financial year after its previous period of currency, unless the certificate is sooner suspended or cancelled.
…
31․ The significance of that sub-section is that a renewed certificate only lasts for 1 year. It does not have ongoing effect.
32․ Relevant to the arguments below, the above statutory regime for certificate renewals may be contrasted with the different provisions applying when a council terminates (picking up on language used by the appellant) or cancels a local practising certificate (to use the language of the LP Act). Sections 55 and 56 are of significance here. The relevant parts of those sections are as follows:
55 Grounds for amending, suspending or cancelling local practising certificate
(1) Each of the following is a ground for amending, suspending or cancelling a local practising certificate:
(a) the holder is no longer a fit and proper person to hold the certificate;
(b) the holder does not have, or no longer has, an approved policy of indemnity insurance;
(c) if a condition of the certificate is that the holder is limited to legal practice stated in the certificate—the holder is engaging in legal practice that the holder is not entitled to engage in under this Act.
(2) A regulation may prescribe additional grounds for amending, suspending or cancelling a local practising certificate.
56 Amending, suspending or cancelling local practising certificate
(1) If the relevant council believes a ground exists to amend, suspend or cancel a local practising certificate (the proposed action), the council must give the holder a notice that—
(a) states the proposed action, and—
(i) if the proposed action is to amend the certificate—states the proposed amendment; and
(ii) if the proposed action is to suspend the certificate—states the proposed suspension period; and
(b) states the grounds for proposing to take the proposed action; and
(c) outlines the facts and circumstances that form the basis for the council's belief; and
(d) invites the holder to make written representations to the council, not later than the end of a stated period of not less than 7 days and not more than 28 days after the day the holder is given the notice, about why the proposed action should not be taken.
(2) If, after considering all written representations made not later than the end of the stated period and, in its discretion, written representations made after the end of the stated period, the relevant council still believes a ground exists to take the proposed action, the council may—
(a) if the notice under subsection (1) stated the proposed action was to amend the practising certificate— …; or
(b) if the notice stated the proposed action was to suspend the practising certificate for a stated period—
…; or
(c) if the notice stated the proposed action was to cancel the practising certificate—
(i) cancel the certificate; or
(ii) suspend the certificate for a stated period; or
(iii) amend the certificate in a less onerous way the council considers appropriate because of the representations.
(3) If the relevant council decides to amend, suspend or cancel the practising certificate, the council must give the holder an information notice about the decision.
(4) If the relevant council decides not to amend, suspend or cancel the practising certificate, the council must, by written notice, tell the holder about the decision.
(5) In this section:
"amend", a certificate, means amend the certificate under section 47 (Conditions imposed on local practising certificate by relevant council) during its currency, otherwise than at the request of the holder of the certificate.
Parties’ arguments
33․ It was not in dispute that neither the LP Act nor the Rules expressly provided for the filing of evidence in a certain way. Because there are no statutory rules that expressly govern the question here, the course to be taken is a matter within the discretion of the Court: Builders Licencing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 (Sperway) at 629.
34․ The appellant argued that on a renewal application, the statute does not require him to establish that he is “fit and proper”. That is correct. However, the statute does require him to initiate the process of renewal, within the currency of an existing practising certificate, and to first disclose matters relevant to that question before any renewal may be granted.
35․ The appellant argued that that when ss 44(3) and 44(4) are read together, once an applicant has established that they are a fit and proper person to hold a certificate, there must be a material change in circumstances before a council may be satisfied that a person is “not a fit and proper person”. Again, that may be correct as a practical reality deriving from an initial grant of a practising certificate, but an applicant is in the best position to know whether anything about their circumstances has changed and that is reflected in the statutory disclosure obligations imposed upon applicants. Further, a change in circumstances may include the council becoming aware of things that should have been disclosed before a previous certificate was granted or renewed. There is nothing in the LP Act that limits the decision-maker to only considering events that occurred in the previous year. More importantly, a renewed certificate must be applied for; it is not ongoing.
36․ That also explains why the appellant’s reliance on Phillips v The Commonwealth (1964) 110 CLR 347 (Phillips) as supporting his construction is misplaced. The appellant had argued from a more general position that on a de novo appeal, whoever makes the application is the person on whom the burden of proof lies, and further, the onus of proving critical facts may rest upon the party purporting to terminate a right: Cory Brothers & Co Ltd v Hughes [1911] 2 KB 738, applied in Phillips. In particular, the appellant relied on this passage in Phillips at 350 (emphasis added):
… What the section does is to provide for the judicial review of administrative decisions of a particular character and upon any such review it is, we think, for the Court to pronounce anew upon the rights of the parties as disclosed by the evidence before it. That being so the application of the ordinary principles relating to the determination of disputed questions of fact by judicial tribunals requires the conclusion that if a claim for compensation be rejected by the Commissioner or his delegate the onus of proving the necessary facts to entitle the applicant to what is virtually an award of compensation will be upon the claimant in later proceedings before the County Court. Likewise, the application of the same principles may well mean that in some cases the onus of proving critical facts may rest upon the Commonwealth. Such a case would be where the Commissioner has purported to terminate an employee's right to compensation under an antecedently existing determination by reason of a material change of circumstances. This proposition was disputed by the Commonwealth on the authority of observations made in Pethick v. The Commonwealth of Australia [1960] HCA 75; (1960) 103 CLR 643, at p 649, but that case was not concerned with the termination of a right to compensation by reason of any change in material circumstances; it was concerned with the question whether the appellant ever had a right to compensation. On this aspect of the case we were referred to Quinn v. M'Callum (1908) 2 BwCC 339 and Smeaton & Sons, Ltd. v. Taylor (1933) 26 BwCC 369 and we, ourselves, have referred to the observations of the Master of the Rolls in Cory Brothers & Co. Ltd. v. Hughes (1911) 2 KB 738, at p 743 We do not doubt the authority of those cases and think that they clearly establish the validity of the propositions which we have set out. …
37․ The words emphasised in the above extract are the passage relied on by the appellant. The context to the passage has been provided to make the point that the High Court went on to draw a distinction between circumstances where there is a termination of an existing right, and circumstances where the question is whether the appellant had a right.
38․ The appellant first submitted that the principle to be extracted from the authorities is that the onus in a de novo appeal lies in the same place as that applying to the decision challenged, which depends on the language of the statute. I do not disagree with that proposition.
39․ The appellant’s further submission is more difficult. He submitted that where the decision involves the termination of a continuing entitlement, based on a change to the material circumstances, it is likely the onus rests with the entity moving the termination.
40․ Assuming that to be a correct statement of principle (a matter which I do not need to expressly determine for the present purpose here), it does not apply to the renewal process under consideration with regard to these particular parties. That is because the Law Society’s refusal to renew was not a termination or cancellation, which, as seen above, is governed by different provisions. Section 56 of the LP Act sets out the process for the relevant council in circumstances where it believes a ground exists to amend, suspend or cancel a local practising certification. The action is described in that section as a ‘proposed action’.
41․ The difference of significance here is that where cancellation is under consideration, the council is the moving party proposing an action in respect of an existing certificate. In the circumstances of the present case, the appellant is the moving party, applying to renew his practising certificate.
42․ There may be overlapping tests, with s 55 of the LP Act providing that one of the grounds for cancelling a local practising certificate is that the holder is no longer a fit and proper person to hold the certificate. There may also be similar requirements in the issuing of an information notice once a decision adverse to the legal practitioner is made. However, the distinguishing feature is that for cancellation, the relevant council is considering taking away an existing right or entitlement that has already been given through the issue of a practising certificate that has currency for a year.
43․ For a renewal certificate, the LP Act makes it clear that there is no such right. Although the relevant council’s satisfaction that a person remains fit and proper to hold a certificate is likely to be readily established if there have been no material changes in circumstances, that is very different from there being an existing entitlement to a renewed certificate when the legal practitioner fills out the form during the currency of a practising certificate that had been issued the previous year. Under s 44(1) of the LP Act, the only mandatory obligation on the Law Society council is to consider renewing the practising certificate, not to renew it. Further, because the process is not automatic, there is no existing entitlement to even apply for renewal after the annual duration of the certificate expires.
44․ The appellant argued that if the proceeding advances on the basis that the appellant must establish he is a fit and proper person to hold a practising certificate, but the statutory power being exercised under s 44 of the LP Act depends on the Court being satisfied that the appellant is not a fit and proper person to continue to hold a certificate, the Court may ultimately ask itself the wrong question. A simple answer to that concern is to point to what the LP Act requires, including through the mandatory use of approved forms. The legislative scheme requires that the appellant disclose any matters that may affect the Court’s view about whether the appellant is both eligible and a fit and proper person. The Court will then be in a position, on the basis of what has been disclosed, to perform the task specified in s 44(4) of the LP Act.
45․ In the course of such disclosure, the Law Society also relied upon the fact that the appellant comes before the Court as an officer of the Court, who has an “obligation to provide reasonable assistance in the conduct of such an inquiry, by reason of their position as officers of the court”: Council of the Law Society of the Australian Capital Territory v LP 12 [2018] ACTCA 60; 14 ACTLR 45 (LP 12) at [56]. That may be so, but in my view, such an obligation applies regardless of any statutory question of legal or evidential onus on an applicant for renewal, not because of it, or in furtherance of any particular onus either way.
46․ I do accept, however, that it speaks to the broader purpose of the legislation, which is really that the LP Act regulates the ability of the legal profession in the Territory to practise law, and the conditions on which such practitioners may do so. For the legislation to be effective, it is critical that legal practitioners adhere to the requirements to honestly disclose or bring forward anything that might be seen as affecting their standing as a fit and proper person to provide legal advice and represent their clients in court or in any other legal context. It is not for applicants to sit back and respond to any issues that may already be known by the Law Society. The Court’s evaluative task is very much informed by what the applicant has first disclosed.
47․ The appellant was the moving party as an applicant for renewal, and on appeal, remains the moving party as an applicant for renewal. The consequence is that it is for the appellant to file his evidence first.
Should an order for a pleading be made?
48․ The appellant sought an order for the matter to proceed by way of pleadings, to define the issues. In light of the interpretation of the LP Act explained above, that is not an appropriate course. The Court’s function on appeal is more in the nature of an evaluative role, rather than an adjudicative task by reference to joinder of issues between the appellant and the Law Society.
49․ I do have some sympathy for an appellant who is concerned to address any concerns the Law Society may have in his evidence at the outset, so as to put his best foot forward. For example, there may be some prospect in an appellant’s evidence potentially being criticised for not giving the same weight in terms of the significance of any matter that is disclosed in evidence.
50․ However, the risk that the parties’ evidence and submissions will be ships crossing in the night is greatly ameliorated by the statutory requirement for the Law Society to provide an information notice, which it has done by a notice dated 15 December 2023, pursuant to ss 12 and 44(8) of the LP Act. Among the material contained within that information notice are:
(a) Materials considered in making the decision;
(b) Reasons for the decision;
(c) Submissions by the practitioner;
(d) Any additional information relevant to the reasons for the decision, in this case, information relating to an unresolved complaint currently being heard before the ACT Civil and Administration Tribunal.
51․ During the hearing of this interlocutory appeal, the Law Society confirmed that it is not presently aware of any other matter not already raised in the information notice. Although that was intended to assist the appellant in the timely preparation of his evidence, as the Law Society submitted, that does not necessarily confine the matters of controversy. That is because the decision is to be made as at the date of the hearing and not as at the date of the Law Society’s original refusal decision. There may be matters that have arisen since the refusal, which may be significant to the Court’s assessment under s 44. As it stands however, the material contained in the information notice represents the respondent’s current position.
Orders
52․ For those reasons, the Court makes the following timetabling orders as follows:
(1) The appellant is to file and serve his evidence by 30 April 2024.
(2) The respondent is to file and serve its evidence by 14 May 2024.
(3) The appellant is to file and serve any evidence in reply by 20 May 2024.
(4) The matter is listed in the appeal index list at 2:30pm on 21 May 2024.
I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: |