• Composition
• Procedure
• Outcomes
• Appeals
• Records of disciplinary action

6.1 This Chapter deals with particular issues relating to the operation of the Legal Services Division of the Administrative Decisions Tribunal. The Tribunal was established on 6 October 1998¹ when it replaced the former Legal Services Tribunal. In this Chapter, the Legal Services Division of the Administrative Decisions Tribunal is referred to as the Tribunal, while the Administrative Decisions Tribunal as a whole is referred to as the ADT.²

6.2 The Tribunal deals with a very small number of all the complaints that pass through the system. One submission suggested that a detailed examination of the procedures and practices of the Tribunal is largely irrelevant to most consumers of legal services who are interested in obtaining redress for loss caused by the defective delivery of legal services.³ The majority of such matters are unlikely ever to come before the Tribunal even on some of the proposed extended definitions of professional misconduct and unsatisfactory professional conduct.

6.3 A review of the operation of the Administrative Decisions Tribunal is currently being undertaken by the New South Wales Parliament’s Committee on the Office of the Ombudsman and Police Integrity Commission.⁴ The Committee has received submissions, conducted a public hearing in November 2000⁵ and issued a discussion paper in March 2001.⁶ The discussion paper includes comments on some areas that are relevant to this review including the Rules of the Tribunal, membership of the Tribunal and resources available to the Tribunal.

COMPOSITION

6.4 The composition of the Tribunal currently varies depending on whether the legal practitioner complained against is a barrister or solicitor. In the case of complaints against barristers the Tribunal consists of one judicial member (a barrister), one barrister member and one lay member. When hearing complaints against solicitors, the Tribunal consists of a one judicial member (a solicitor), a solicitor member and a lay member.⁷ The presiding judicial member is sometimes the Deputy President (Legal Services), who is currently a barrister. The Tribunal is, therefore, always composed of a majority of legal practitioners.

6.5 The Commission did not specifically raise the issue of the composition of the Tribunal in IP 18. However, since the publication of IP 18 the question of the composition of the Tribunal has been raised publicly.⁸ The Attorney General has asked the Commission to consider the issue and to give an indication of a preferred option subject to the Attorney General, on receipt of this Report, consulting on any proposals.

6.6 Because the Tribunal will almost always be composed of a majority of practitioners, it is open to the allegation that it is not carrying out its task impartially. For this reason the Commission presently considers that it would be preferable if the Tribunal were to comprise a Judge (as the presiding officer) and one or two lay members. The Judge could be either a serving or retired District Court Judge or a retired Supreme Court Judge who is eligible for appointment as an acting Judge. The Commission does not presently consider it necessary that practising lawyers be represented on the Tribunal, since a Judge is well able to assess any technical question of professional practice that might arise. Moreover, it will always be possible to bring in expert evidence of such matters where a party, or the Tribunal, thinks it might be useful. Including a Judge on the Tribunal would mirror similar arrangements with respect to other professional tribunals. The Medical Tribunal consists of a District Court Judge, two medical practitioners (because of the highly technical nature of some of the material before the Tribunal) and one lay person.⁹

6.7 The Commission’s current view assumes that the professional bodies will continue to be involved in the investigation of complaints before they are brought to the Tribunal. If, however, the professional bodies ceased to be involved in the investigative stage, there may be an argument for the professions to be represented on the Tribunal by the inclusion of one practitioner on any sitting of the Tribunal in addition to a lay member and the presiding Judge.

Recommendation 28

That the government consider and consult on the proposal that a bench of the Legal Services Division of the Administrative Decisions Tribunal comprise a serving or retired District Court Judge or retired Supreme Court Judge as the presiding member and one or two lay members.

Practice rules

6.8 Since the new Tribunal commenced operation on 6 October 1998 its procedure has been governed by interim rules set out in the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 (NSW) which incorporates the rules which were part of the former Legal Profession Tribunal Rules 1995 (NSW). Some simple forms have also been provided.¹⁰

6.9 The various divisions of the ADT are able to “adopt their own procedures by way of rules or informally, through directions or guidelines”.¹¹ A Rules Committee has also been established to make rules with respect to practice and procedure.¹² The need for the rules of the Legal Services Division to be refined and settled in consultation with key stakeholders has also been canvassed in the recently released Discussion Paper of the Committee on the Office of the Ombudsman and the Police Integrity Commission.¹³

6.10 In Issues Paper 18 (“IP 18”) the Commission asked whether the current practice rules for proceedings before the Tribunal are adequate (Issue 33).

Gaps in the Tribunal’s powers

6.11 The Tribunal does not currently have the power to:

• deal with proceedings summarily;
• adjourn proceedings for mediation;
• make costs orders generally;
• make orders for a formal apology to the complainant; and
• make orders for practitioners to undergo counselling as to their professional obligations.¹⁴

6.13 The Bar Association confirmed its support for supplementing the Tribunal’s powers as outlined above and elaborated:¹⁷

• that the power to deal with proceedings summarily should involve staying or dismissing proceedings in whole or in part on the grounds of: public interest; the complaint being made more than three years previously; or that the allegations were “vexatious, misconceived, frivolous or lacking in substance”;
• that the Tribunal should be given the power to dismiss proceedings if it is satisfied that the practitioner “is generally competent and diligent” and that “no other material complaints have been made against him or her”;¹⁸
• that the Tribunal should be given the power to order that a practitioner enter into an enforceable undertaking as to future conduct.

6.15 Summary dismissal. Both the LSC and the Councils currently have the power to dismiss a complaint on the grounds of public interest²⁰ or because the complaint was made more than three years previously²¹ or the allegations were “vexatious, misconceived, frivolous or lacking in substance”.²² This power can be exercised during the course of an investigation. Given that this screening process is already in place there does not appear to be an adequate reason for allowing these issues to be considered again at the commencement of proceedings before the Tribunal.

6.16 Any changes in circumstances that might give rise to the need for the Tribunal to dismiss a matter summarily can be dealt with under existing provisions. It is currently open to one of the Councils or the LSC to apply to the Tribunal to dismiss a matter that has already been instituted before the Tribunal if the relevant Council or the LSC has subsequently decided to dismiss the complaint.²³

6.17 It is not appropriate that the Tribunal dismiss a matter that has been referred to it following a process of investigation, without the Tribunal fully hearing the matter and making findings in relation to the matters raised. The Commission can see no reason why questions of conduct, once referred to the Tribunal, should not be fully aired. The practitioner’s previous good conduct can still be taken into account when the Tribunal considers the appropriate orders to hand down once findings about the practitioner’s conduct have been made. The Tribunal is, in any case, not precluded from deciding to take no action following a full hearing of a matter.

6.18 Adjournment for mediation. A number of submissions strongly opposed the mediation of conduct matters.²⁴ The public interest aspects of investigating and enforcing conduct within the legal profession render it inappropriate for questions of conduct to be negotiated between the parties as if they were conducting private litigation. The Commission opposes mediation of conduct disputes elsewhere in this report.²⁵ On that basis, the Commission does not consider it necessary for the Tribunal to have the power to adjourn proceedings for mediation.

6.19 Joinder of proceedings. The Commission agrees that it should be made clear that two practitioners can, subject to directions of the Tribunal, be joined in the one information and that a joint hearing may be conducted against a barrister and solicitor provided the Councils and LSC agree. Joinder of proceedings is especially desirable in relation to the efficient use of the Tribunal’s resources in situations where the same course of conduct may be relevant to proceedings against two or more practitioners.

Recommendation 29

It should be made clear that two or more practitioners can, subject to directions of the Legal Services Division of the Administrative Decisions Tribunal, be joined at the commencement of proceedings in the one information and that a joint hearing may be conducted against a barrister and solicitor provided the Councils and Legal Services Commissioner agree.

Dealing with less complicated matters

6.21 Directions hearings. Directions hearings are held every six to eight weeks to set timetables for the preparation of matters for hearing before the Tribunal.²⁷ This time-frame may be too long for some less complex matters.

6.22 In IP 18 the Commission asked whether there should be a means of expeditiously listing and disposing of less complex cases before the Tribunal (Issue 34).

6.23 It has been said that, prior to the formation of the ADT, the preparation of matters was dealt with on an individual basis, rather than by means of a series of fixed directions hearings.²⁸ Individual treatment on an informal basis worked well because both practitioners and the Councils were represented by experienced practitioners who were able to identify issues, sort out evidence between themselves, and prepare the matters for hearing.²⁹

6.24 Some submissions supported expeditious listing and disposal of less complicated matters.³⁰ One submission proposed that directions hearings should only be held when considered necessary. The necessity for directions could be determined by the Tribunal referring to the views of the LSC or the practitioner against whom proceedings have commenced.³¹

6.25 The Tribunal already has the power to issue directions on a case by case basis. No new provisions are, therefore, required.³²

6.26 Removal from the roll by consent. Even where legal practitioners admit the facts of the case against them, the normal process of removing them from the roll must be followed. In IP 18 the Commission asked whether it should be possible to remove a practitioner from the roll with that practitioner’s consent “without the need for a detailed enquiry by the Tribunal”³³ (Issue 35).

6.27 Submissions generally supported allowing practitioners to consent to being removed from the roll of practitioners.³⁴

6.28 The grounds for complaint and the necessary evidence must be recorded (probably by an agreed statement of facts) if such consent orders are to be allowed, since the information will be necessary should the practitioner seek readmission to the profession in the future.³⁵ Applications for readmission (like those for admission to practice) are determined by the Supreme Court. Usually there are two or three applications for readmission every year.³⁶ However, it was also suggested that a practitioner could agree not to seek readmission to the roll,³⁷ or that inability to seek readmission should be an inevitable result of agreeing to be removed from the register without a hearing.³⁸

6.29 The Bar Association suggested the following conditions for removing a practitioner from the roll by consent:

• that the parties to the Tribunal agree to the existence of facts underlying the admission(s) of misconduct made by the practitioner;
• that the Tribunal be satisfied that the agreement and any admissions have been “freely, fairly and reasonably made”;
• that the practitioner gives an enforceable undertaking that he or she will not re-apply for admission as a practitioner; and
• that the practitioner certifies, on oath, that he or she has not been guilty of any misconduct other than that already disclosed.³⁹

A candidate, however qualified in other respects, must not be admitted as a legal practitioner unless the Admission Board is satisfied that the candidate is of good fame and character and is otherwise suitable for admission.

A solicitor may be restored to the roll after he has been struck off but the power to reinstate should be exercised with the greatest caution and only upon solid and substantial grounds.⁴²

6.32 The Commission rejects any proposals for automatic disqualification from readmission if a practitioner agrees to be removed from the roll by consent, noting in particular the statement of Justice Kirby:

There is no public interest in denying forever the chance of redemption to former practitioners. On the contrary the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance, under whatever conditions and after whatever time the Court considers appropriate.⁴³

6.34 The question remains whether a practitioner must agree to a statement of facts before a consent removal is granted. If a practitioner refuses to agree to a statement of facts, the Tribunal must continue to hear the matter to conclusion and make appropriate findings. A practitioner should not be able to pre-empt a hearing by consenting to being removed from the roll but declining to agree on the material facts.

6.35 In IP 18 the Commission noted that the required statements could be entered into by means of a simplified process, perhaps conducted before a registrar⁴⁴ or a single member of the Tribunal. No additional suggestions were made in submissions responding to these proposals. However, the Commission is now of the view that the required statements should be entered into formally before the body that has the power to make the order removing the practitioner from the roll. In this case the body that has the power to make the order is a fully constituted three member bench of the Tribunal.

Recommendation 30

A practitioner should be able to consent to being removed from the roll of practitioners provided the practitioner is prepared to agree to a record of the grounds for the complaint and an agreed statement of facts. The required records and statements should be entered before a three member sitting of the Legal Services Division of the Administrative Decisions Tribunal.

6.36 Section 168 of the Legal Profession Act 1987 (NSW) provides that the rules of evidence apply to proceedings that involve a question of professional misconduct. In all other cases, including those relating only to unsatisfactory professional conduct, the general position under s 73 of the Administrative Decisions Tribunal Act 1997 (NSW) applies. That is, the Tribunal, subject to the rules of natural justice,⁴⁵ is not bound by the rules of evidence except that the privilege against self incrimination in other proceedings is preserved.⁴⁶

6.37 In IP 18 the Commission asked whether the rules of evidence should apply to all Tribunal proceedings (Issue 36).

6.38 One submission supported the general application of the rules of evidence on the grounds that a practitioner’s professional reputation and livelihood may be at stake as a result of the proceedings (especially in relation to more serious matters).⁴⁷

6.39 Others suggested that the rules of evidence should not apply for a number of reasons, including that:

• some relevant material may be excluded;⁴⁸ and
• the rules of evidence are already not applied in other disciplinary bodies, for example, the Police Tribunal.⁴⁹

6.41 The issue of whether the rules of evidence should apply to all Tribunal proceedings was canvassed extensively in relation to the National Competition Policy Review in 1998. The Review received submissions from the OLSC, the Bar Association and Law Society. The OLSC submitted that the rules of evidence should not apply to matters before the Tribunal.⁵¹ The Bar Association suggested that the application of the rules of evidence be retained subject to some exceptions relating to client legal privilege and confidentiality.⁵² The Law Society’s position was that “the Tribunal should not be subject to the rules of evidence in any matter”.⁵³ The Report of the National Competition Policy Review merely concluded that “consideration should be given to removing the distinction in the application of evidentiary rules” without saying which result would be preferred.⁵⁴

6.42 The distinction between matters involving professional misconduct as opposed to unsatisfactory professional conduct is largely irrelevant in practice, given that most matters are pleaded in the alternative as either professional misconduct or unsatisfactory professional conduct.⁵⁵ The Law Society, in its preliminary submission to this review, said that, given the “nature of the determination of the Tribunal”, it might be “more appropriate for the rules of evidence to be applied in all instances”.⁵⁶

6.43 It is desirable, for the sake of consistency and to avoid confusion, that the application (or non-application) of the rules of evidence be the same for all matters brought before the Tribunal.

6.44 Because the disciplinary system is concerned with the protection of the public it is important that the Tribunal be able to consider all the evidence that fairly and rationally bears on the question of the conduct of a practitioner. The New South Wales Court of Appeal has had occasion to consider the provisions of the Medical Practice Act 1992 (NSW)⁵⁷ that state that the Medical Tribunal is not bound by the rules governing the admission of evidence. The Court held that:

it is in our view perfectly consistent with concepts of procedural fairness to apply a provision such as in [the Medical Practice Act 1992 (NSW)] to admit evidence which may not be legally admissible but which, nonetheless, possesses “rational persuasive power” in respect of an issue material to the proceeding.⁵⁸

6.45 The only substantive argument put to the Commission in favour of the application of the rules of evidence in disciplinary proceedings is that the outcome of a hearing before the Tribunal can have a serious impact on the professional career of a legal practitioner and that legal practitioners should, therefore, be entitled to the protections offered by the rules of evidence.⁶⁰ However, as already pointed out, other tribunals and boards that determine the future careers of other professionals and officers are not bound by the rules of evidence. These boards and tribunals include the:

• Chiropractors and Osteopaths Tribunal;⁶¹
• Dental Technicians Registration Board;⁶²
• Dental Board;⁶³
• Medical Tribunal;⁶⁴
• Nurses Tribunal;⁶⁵
• Pharmacy Board of New South Wales;⁶⁶
• Podiatrists Registration Board;⁶⁷
• Psychologists Registration Board;⁶⁸ and
• Police Tribunal.⁶⁹

6.47 The Commission, therefore, recommends that the Tribunal should not be bound by the rules of evidence in any proceedings provided the rules of natural justice are followed. The privilege against self incrimination in other proceedings must also be preserved.

6.48 General formulations stating that a tribunal is not bound by the rules of evidence include:

• The Administrative Appeals Tribunal Act 1975 (Cth): “the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate”.⁷⁰
• The Medical Practice Act 1992 (NSW): “In proceedings before it … the Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in such manner as it thinks fit”.

The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.⁷²

Recommendation 31

Section 168 of the Legal Profession Act 1987 (NSW) should be repealed so that the Legal Services Division of the Administrative Decisions Tribunal is not bound by the rules of evidence in any proceedings so long as the rules of natural justice are followed. The privilege against self incrimination in other proceedings must also be preserved.

6.51 Generally, hearings before the ADT are open to the public.⁷³ However, s 170(1) of the Legal Profession Act 1987 (NSW) provides that “a hearing (or part of a hearing) relating only to a question of unsatisfactory professional conduct” is to be held in the absence of the public unless the Tribunal “is of the opinion that the presence of the public is in the public interest or the interests of justice”.

6.52 In IP 18 the Commission asked whether any hearings of the Tribunal should be conducted in the absence of the public (Issue 37) and considered a number of options, including giving the Tribunal an unfettered discretion to close hearings,⁷⁴ and requiring that hearings be open to the public unless the Tribunal finds a specific reason to order a closed hearing.⁷⁵

6.53 Some submissions favoured Tribunal proceedings being held in public (barring exceptional circumstances),⁷⁶ for a number of reasons, including:

• it is important that justice is seen to be done;⁷⁷
• many of the issues dealt with by the Tribunal are public interest matters;⁷⁸ and
• holding sessions in private is over-protective of individuals and not in the interests of transparency and public accountability.⁷⁹

• the sort of cases where other Court proceedings are closed, for example, to protect the identity of an informant or to protect a victim;⁸⁰
• where a person’s life might be in danger;⁸¹
• where a party or witness needs to be protected from personal harm or from suffering damage as the direct result of a public hearing;⁸² and
• wherever the Tribunal believes it is appropriate to do so (without limiting the discretion by examples).⁸³

6.56 The Commission also points to the consideration that hearings will often involve disclosure of confidential communications subject to client legal privilege.

6.57 The general principle in New South Wales is that justice is to be administered openly and departures from this general principle should occur only in exceptional circumstances.⁸⁶ There have been many judicial statements in support of this position:

It is a deeply rooted principle that justice must not be administered behind closed doors - court proceedings must be exposed in their entirety to the cathartic glare of publicity. There are limited exceptions to the observance of this principle but these are well defined and sparingly allowed. Statutes are made by public processes. They are judicially administered in public proceedings. It is only thus that the right of representation and of due hearing of all legitimate submissions can be seen to have been accorded to parties subjected to the judicial process. Moreover publicity of proceedings is one of the great bastions against the exercise of arbitrary power as well as a re-assurance that justice is administered fairly and impartially.⁸⁷

6.58 Having a starting point of a closed hearing for legal practitioners in respect of proceedings for unsatisfactory professional conduct may also be overly protective of the legal profession. Most other professional disciplinary regimes begin with the presumption of an open hearing for all disciplinary matters, unless the tribunal or board directs otherwise. Such tribunals and boards include the:

• Chiropractors and Osteopaths Tribunal;⁸⁸
• Dental Technicians Registration Board;⁸⁹
• Dental Board;⁹⁰
• Medical Tribunal;⁹¹
• Nurses Tribunal;⁹²
• Optical Dispensers Licensing Board;⁹³
• Board of Optometrical Registration;⁹⁴ and
• Pharmacy Board of New South Wales.⁹⁵

is to sit as in open court when hearing the appeal but may sit in private if the Appeal Panel considers it necessary to do so in the public interest or to protect the safety of any person.⁹⁶

If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may make any one or more of the following orders:

(a) an order that the hearing be conducted wholly or partly in private,

(b) an order prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.⁹⁷

However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order that the hearing be conducted wholly or partly in private,

(b) an order prohibiting or restricting:


(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or

(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,


(b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.⁹⁸

Publishing names of parties and witnesses

6.63 Since 2000 there has been no general restriction on the publication of names of parties and witnesses before the Tribunal.¹⁰⁰ However, in IP 18 the Commission considered the possibility that the publication of decisions of the Tribunal in full may cause embarrassment to third parties and former clients of solicitors and asked in what circumstances should the names of parties and witnesses to proceedings should be disclosed to the public (Issue 38).

6.64 Submissions made a number of suggestions as to the circumstances in which the names of parties and witnesses may be disclosed to the public including:

• the same circumstances that apply in any normal civil action in a court of law;¹⁰¹ and
• that practitioners names be disclosed only if an adverse finding is made by the Tribunal.¹⁰²

6.66 The OLSC, however, proposed that full publicity, subject to certain necessary restrictions, should be given to the names of witnesses to ensure a transparent process that is open to the public.¹⁰⁴

6.67 The Legal Practice Act 1996 (Vic) provides that the Tribunal may order, among other things, “that any information that might enable a party or another person who has appeared at a hearing to be identified – must not be published except in the manner and to the persons specified in the order”.¹⁰⁵

6.68 Client legal privilege is also an important matter to consider. It is relevant for both complainants and other witnesses before the Tribunal.¹⁰⁶ The ability to order the suppression of names of complainants and other witnesses, without denying public access to hearings or the general reporting of proceedings, is important both for protecting a client’s privacy and for limiting the opportunities for intimidation by threatening to reveal material subject to client legal privilege during the course of a hearing before the Tribunal.

The Commission’s conclusion

6.69 The Commission is of the view that all hearings of the Tribunal should be held in public, subject to a broad discretion to order a closed hearing of the type currently exercised in relation to other ADT hearings. This would be achieved simply by repealing the provision that makes the special provision for the Legal Services Division.¹⁰⁷ The Commission considers that the current provision allowing the ADT to order a closed hearing if it is satisfied that it is desirable to do so “for any other reason” is sufficient to cover the circumstances in which submissions considered it was appropriate to order a closed hearing.¹⁰⁸

6.70 Finally, because of the importance of client legal privilege as a particular right of clients of a practitioner, the Commission proposes a new provision to the effect that, in making a determination under s 75(2) of the Administrative Decisions Tribunal Act 1997 (NSW) the Tribunal should have regard to the client legal privilege of both the complainant and other witnesses before the Tribunal.

Recommendation 32

Section 170(1) of the Legal Profession Act 1987 (NSW) should be repealed so that hearings of the Legal Services Division of the Administrative Decisions Tribunal will, subject to the exercise of the Tribunal’s discretion, be held in public. A specific provision should be included to the effect that in making a determination under s 75(2) of the Administrative Decisions Tribunal Act 1997 (NSW) the Legal Services Division of the Administrative Decisions Tribunal should have regard to the client legal privilege of the complainant and other witnesses before the Tribunal.

6.71 The OLSC has submitted that the “reasonable likelihood test” for referral of matters to the Tribunal makes it necessary for the Councils and LSC to refer to previous decisions of the Tribunal for guidance in relation to pending matters. Because there are not many decisions of the Tribunal and their range cannot cover all possible situations, the Councils and LSC may be left with little assistance in determining whether a particular situation can satisfy the reasonable likelihood test. In relation to this alleged problem¹⁰⁹ the Commission asked whether it should be possible to bring “test cases” before the Tribunal and that Tribunal be given the power to make declaratory orders as to whether particular conduct breaches relevant standards (Issue 39).

6.72 The particular form of declaratory order being considered is in the nature of an “advisory opinion”. An advisory opinion is defined as “a pronouncement made by a court, not in the course of actual litigation, at the request and for the guidance of a public body, as to its rights, powers, duties, etc, in a particular matter”.¹¹⁰

6.73 The Tribunal is essentially a body that exercises judicial power in relation to the matters brought before it. The courts, in general have an unlimited discretion to issue declaratory orders,¹¹¹ however, it is also generally the case that the courts will not make declarations on matters that are purely theoretical or hypothetical.¹¹²

6.74 The OLSC, in supporting the availability of advisory opinions, suggested that individual practitioners would then not have to endure hearings aimed at establishing a principle that extends beyond the individual case and that advisory opinions would make practitioners more certain as to what conduct constitutes unsatisfactory professional conduct and professional misconduct.¹¹³

6.75 Other submissions suggested that advisory opinions should not be available.¹¹⁴ Both the Victorian Legal Ombudsman and the Law Society of New South Wales suggested that advisory opinions were not necessary because they had experienced no problems with applying the “reasonable likelihood” test.¹¹⁵

6.76 Other reasons in support of this position include:

• issuing advisory opinions would be contrary to the Tribunal’s function which is to determine disciplinary proceedings and to make relevant determinations of fact and law;¹¹⁶
• the Tribunal’s processes are unsuited to such a broader regulatory function and the Legal Profession Act 1987 (NSW) already provides for the making of rules of conduct after a process of consultation;¹¹⁷
• the Tribunal should not be allowed to usurp the role of the Supreme Court as the authority ultimately responsible for defining and maintaining the standards to be met by practitioners;¹¹⁸
• there is a danger that, as there may be no opposing party, the Tribunal will make a decision on inadequately or incompletely argued submissions;¹¹⁹ and
• an advisory opinion may still cause confusion and uncertainty in the minds of litigants who may be doubtful as to whether the facts of the case under consideration come within its ambit.¹²⁰

Costs orders

6.78 Costs orders may be made by the Tribunal against a practitioner who is found guilty of professional misconduct or unsatisfactory professional conduct or (if special circumstances so warrant) against the Public Purpose Fund if the Tribunal is satisfied the practitioner is not guilty.

6.79 In IP 18 the Commission asked whether the current provisions relating to costs before the Tribunal should be altered in any way (Issue 40) and considered a number of issues which generally relate to the position of practitioners who are found by the Tribunal to be not guilty of professional misconduct or unsatisfactory professional conduct, including whether:

• the Tribunal should be given the power to award costs against the LSC or the Law Society or Bar Association;
• the Tribunal’s powers with respect to costs should extend to interlocutory proceedings;
• the power to award costs when a practitioner is found not guilty should not be limited to “special circumstances”; and
• the costs to be awarded should be determined by an assessor rather than the Tribunal.¹²²

6.81 The Victorian provisions relating to costs orders are as follows:

(1) The Tribunal may order the payment of the costs of and incidental to any hearing under this Division.

(2) Subject to this section, the costs are in the discretion of the Tribunal.

(3) The Tribunal must not make an order for costs against an RPA,¹²⁷ the Board or the Legal Ombudsman unless satisfied that special circumstances make it appropriate to do so.

(4) The Full Tribunal may fix the amount of costs itself or order that bills of costs be assessed or settled by the registrar or a deputy registrar.¹²⁸

6.82 The Victorian and New South Wales approaches to costs before legal disciplinary tribunals are quite different to those in relation to costs, for example, before the New South Wales Medical Tribunal:

The Tribunal may order the complainant, if any, the registered medical practitioner concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at any inquiry or appeal before the Tribunal to pay such costs to such person as the Tribunal may determine.¹³⁰

6.83 The Victorian provisions go some way towards dealing with the substance of the issues outlined above. The Commission accordingly supports subsections (1) and (2) so far as they broaden the discretion of the Tribunal to make costs orders in relation to proceedings before it. Subsection (4) usefully allows the Tribunal to assess costs or to order that they be assessed outside the Tribunal.

6.84 However, with respect to subsection (3) the Public Purpose Fund is not available to meet a costs order in favour of a successful practitioner, and the “special circumstances” test is preserved.

6.85 The question of the availability of the Public Purpose Fund and whether the Tribunal should be given the power to award costs against the LSC or the Law Society or Bar Association is a difficult one. Given the primacy accorded to the protection of the public in the current disciplinary system, it would not be desirable for an institution with meagre resources, like the Bar Association, to have to be concerned about costs in cases that may be lengthy, complex or otherwise expensive to run. Provisions allowing for costs to be awarded against, say the Bar Association, might, therefore, hamper, if not prevent, the bringing of some complaints before the Tribunal. The Law Reform Commission is, therefore, not convinced that the current arrangements with respect to the Public Purpose Fund being made available to meet the costs of successful practitioners should be altered.

Special circumstances

6.86 As to the question whether special circumstances exist warranting an order for costs in favour of a successful practitioner, the Tribunal has not often been called upon to decide the issue. In the matter of Legal Services Commissioner v di Suvero¹³² the Tribunal considered previous decisions of the Tribunal relating to costs and noted that while it was not governed by principles applied in the courts, it could be guided by decisions of courts where indemnity costs were awarded against a party who had “maintained proceedings that had no real prospect of success”.¹³³

In that case the Tribunal held that the factors warranting the finding of special circumstances were:

1. At best this was a complaint which could have gone either way and accordingly the Commissioner could not have been satisfied to the requisite standard that it had reasonable likelihood of success;

2. The proceedings were delayed and protracted by the actions of the Commissioner to the detriment of the Barrister.

6.88 The compulsory insurance policies available to members of the Bar Association currently extend to the payment of costs where a barrister successfully defends proceedings before the Tribunal. No barrister need be out of pocket so long as he or she has fulfilled the obligations under the relevant insurance policy. However, the insurance policies available to members of the Bar are currently under review and it is possible that from 1 July 2001 the current position may not be preserved.¹³⁴ The situation will need to be reviewed once the extent of any changes becomes known.

6.89 The payment of costs where a solicitor successfully defends proceedings before the Tribunal is not presently covered by the LawCover professional indemnity insurance scheme. However, there is an optional product – professional practice insurance – that is available to cover the costs of solicitors who are brought before various tribunals, including the ADT. This optional product has been available now for the past year.¹³⁵

6.90 Given that not all practitioners will necessarily be insured against the costs of successfully defending proceedings before the Tribunal, the Commission is of the view that in considering whether special circumstances exist the Tribunal should have regard to the length and complexity of the proceedings. While it may be acceptable for a successful practitioner to bear the cost of one day’s appearance before the Tribunal in a simple case, it may not be acceptable for a successful practitioner to bear the cost of, say, one week’s hearing before the Tribunal in a case that involved lengthy preparation.

Recommendation 33

1. The Legal Services Division of the Administrative Decisions Tribunal should be empowered to order the payment of costs of, and incidental to, any hearing under Part 10.

2. Orders for costs should be subject to the discretion of the Legal Services Division of the Administrative Decisions Tribunal.

3. In the event that the Legal Services Division of the Administrative Decisions Tribunal is satisfied that a practitioner is not guilty, an order for costs should be made against the Public Purpose Fund, but only when the Tribunal is satisfied that special circumstances exist warranting such an order. In considering whether special circumstances exist the Tribunal should have regard to the length and complexity of the proceedings.

4. The Legal Services Division of the Administrative Decisions Tribunal should be empowered either to fix the amount of costs itself or to order that costs be assessed.

Compensation

Compensation to consumers

6.91 The Tribunal may award compensation in limited circumstances, namely, in situations where the practitioner is found guilty of professional misconduct or unsatisfactory professional conduct and where compensation is not available from other sources. The amount of compensation that the Tribunal can order is limited to $10,000 although a greater amount of compensation may be awarded if the practitioner consents.¹³⁶

This means that generally consumers have to pursue compensation by other processes, such as by way of:

• an action in the Supreme Court for professional negligence;
• an application to the Fidelity Fund (in the case of solicitors);
• mediation as a consumer dispute by the LSC or the relevant Council; or
• an application to the Fair Trading Tribunal (Consumer Claims Division).

6.92 Obviously, some consumers will not have the resources to pursue many of the alternative avenues and may find it frustrating that compensation can be claimed through the complaints system only in very limited circumstances.¹³⁸

6.93 In IP 18 the Commission asked what powers the Tribunal should have in relation to compensation (Issue 41) and considered suggestions that the jurisdiction of the Tribunal to make compensation orders could be increased by:

• giving the Tribunal a small claims jurisdiction without, if necessary, the need to commence proceedings for professional misconduct and unsatisfactory professional conduct (that is, in relation to small costs disputes and minor claims concerning poor service or negligence);¹³⁹ and
• allowing compensation in favour of a person who otherwise has no standing to be a complainant before the Tribunal (because, for example, their complaint has been dismissed, but the relevant Council has pursued a different but related matter before the Tribunal).¹⁴⁰

6.94 Some submissions opposed any consideration of both disciplinary and compensation issues by the one body on a number of grounds including:

• it is unfair that a practitioner who is required to co-operate with the Tribunal with regard to disciplinary matters may make admissions that can be used against him or her in any compensation proceedings that follow;¹⁴¹
• employed solicitors may not personally be civilly liable;¹⁴²
• Tribunal proceedings are quasi-criminal and considerations of compensation should not be brought to bear on the proceedings;¹⁴³
• compensation would be more appropriately dealt with as a consumer dispute;¹⁴⁴ and
• there are procedural difficulties involved in bringing a claim for compensation in addition to the disciplinary hearing.¹⁴⁵

The power to award compensation sits most comfortably with an independent body that is capable of serving the interests of legal practitioners and their clients without exclusive allegiance to either.¹⁴⁶

6.96 The Victorian Legal Ombudsman emphasised the need to keep consumer redress and disciplinary functions separate.¹⁴⁸

6.97 The Commission is of the view that it is not desirable to have issues relating to the question of compensation distorting the public protection aspects of disciplinary hearings before the Tribunal. Compensation orders, at the end of a hearing, would be appropriate only if such orders reasonably or incidentally arose from matters canvassed as part of the disciplinary procedure. That is, in situations where the order for compensation could be based on already existing findings. However, if something more is required by way of, for example, submissions or evidence, then the most appropriate course would be for the question of compensation to be dealt with as a separate matter. One possible option might be to have compensation determined by the ADT sitting in its fair trading jurisdiction if the jurisdiction of the Fair Trading Tribunal moves to the ADT.¹⁴⁹

Recommendation 34

The Legal Services Division of the Administrative Decisions Tribunal should have the power to order compensation on the basis of findings made by the Tribunal as part of the disciplinary hearing.

Any questions of compensation requiring substantial submissions or evidence should be referred to an appropriate alternative forum for determination.

Compensation to practitioners

6.98 One submission suggested that the Tribunal should be able to award a practitioner compensation against a complainant if the original allegation is not proven against the practitioner and it is shown that the allegation was knowingly false, malicious or fraudulent.¹⁵⁰ Another submission drew attention to the fact that practitioners cannot charge fees for answering complaints and that therefore, in the case of false complaints, practitioners may be unfairly at a loss as the result of a complaint.¹⁵¹

6.99 This issue was not raised in IP 18. It is noted in this regard that the broad provisions of the Medical Practice Act 1992 (NSW) with respect to costs could be interpreted as extending beyond legal costs to other costs (including costs incurred by loss of earnings).¹⁵² Express provision could be made to clarify any doubts as to such a broad interpretation of “costs” in relation to the provisions of the Legal Profession Act 1987 (NSW). The Commission makes no recommendation on this issue.

Other orders

6.100 The Bar Association has proposed that the Tribunal be empowered to:

• make orders for a formal apology to the complainant;¹⁵³
• make orders for counselling as to the legal practitioner’s professional obligations;¹⁵⁴ and
• order that a practitioner enter into an enforceable undertaking as to future conduct.¹⁵⁵

6.101 The Tribunal has few powers in relation to the future conduct of practitioners, short of cancelling or suspending a practising certificate, although it does currently also have the power to require a practitioner to undertake and complete a specified course of legal education¹⁵⁷ and, in relation to solicitors only, it can subject a solicitor’s practice to periodic inspection,¹⁵⁸ order that a solicitor “seek advice in relation to the management of the solicitor’s practice … from the person specified in the order”,¹⁵⁹ and order that a solicitor “cease to accept instructions in relation to the class of legal services specified in the order”.¹⁶⁰

6.102 There is a degree of overlap between some of the Bar Association’s proposals and the provisions that already exist. For example, the power to order that a solicitor seek advice in relation to practice management could be incorporated in the proposed general power to order counselling as to professional obligations. The power to order that a solicitor not accept instructions in relation to a particular class of legal services could be incorporated in a power to require a practitioner to enter undertakings as to future conduct.

6.103 No submissions were received on this issue apart from those from the Bar Association and the Law Society. Given the variety of new options proposed and the overlap with already existing options, the Commission favours giving the Tribunal the additional power to make such other orders as it thinks fit. This will allow the Tribunal to develop further appropriate remedies in addition to those suggested by the Bar Association.

Recommendation 35

The Legal Services Division of the Administrative Decisions Tribunal should have the power to make such other orders as it thinks fit following a hearing.

6.104 The following recommendations relating to appeals from the Tribunal assumes that the current composition of the Tribunal remaining unchanged. The composition of the Tribunal was not raised directly in IP 18 and has not been fully considered as part of the current review.¹⁶¹ Any changes in the composition of the Tribunal, for example the removal of members of the legal profession and making a District Court Judge the chairperson, may have implications for how appeals are managed in future.

To the Appeal Panel of the Tribunal

6.105 Appeals from a first instance decision of the Tribunal are made to an Appeal Panel of the Tribunal. The Appeal Panel’s constitution closely resembles the constitution of the Tribunal at first instance. At first instance the Tribunal is usually constituted in its Legal Services Division by three members, two being legally qualified and the third a lay member.¹⁶² An Appeal Panel is constituted by the Deputy President (Legal Services) (or in the event that this member sat in the Division, by another legally qualified member), a member who is a legal practitioner, and a lay member of the Tribunal.¹⁶³ In IP 18 the Commission questioned the need for appeals to be heard by a similarly constituted Appeal Panel and asked whether the appeals process from decisions of the Tribunal was adequate (Issue 44).

6.106 A number of submissions agreed that appeals to the Appeal Panel as it currently stands are not necessary.¹⁶⁴

6.107 One submission suggested that an appeal to the District Court (where leave is necessary to call further evidence) might be a cheaper, quicker and more appropriate avenue of appeal.¹⁶⁵ This could, however, be construed as undermining the Supreme Court’s inherent jurisdiction with respect to legal practitioners.

6.108 As at 30 June 2000, only seven appeals had been lodged with the Appeal Panel since the establishment of the Tribunal in 1998.¹⁶⁶ Two of these appeals have been determined by the Appeal Panel. In the first the Appeal Panel affirmed the decision of the Tribunal not to allow the complainant to be joined as a party in the Tribunal¹⁶⁷ and in the second a finding by the Tribunal of professional misconduct was affirmed.¹⁶⁸

6.109 The Commission agrees that an appeal to an Appeal Panel which is constituted in the same way as the Tribunal at first instance is not necessary and accordingly recommends that appeals not be available to the Appeal Panel. This would entail repeal of s 171F of the Legal Profession Act 1987 (NSW) and modification in the Legal Profession Act, for the purposes of this class of appeals, of the general appeal provision in s 119(1) of the Administrative Decisions Tribunal Act 1997 (NSW) (which refers to appeals from the Appeal Panel to the Supreme Court).

Recommendation 36

Appeals to an Appeal Panel of the Administrative Decisions Tribunal should be abolished for all matters under Part 10.

6.110 Currently an appeal to the Supreme Court from the decision of an Appeal Panel is available only in relation to a question of law. By contrast, an appeal to an Appeal Panel of the Tribunal is available as of right in relation to a question of law and, in relation to the merits of a decision, by leave only. This arrangement, under the Administrative Decisions Tribunal Act 1997 (NSW),¹⁶⁹ appears to exclude the Supreme Court from hearing appeals on the merits from a Tribunal decision. This is difficult to reconcile with the Supreme Court’s inherent jurisdiction in relation to individual practitioners’ fitness to practise, a jurisdiction expressly preserved by the Legal Profession Act 1987 (NSW).¹⁷⁰

6.111 Accordingly the Commission asked in IP 18 whether the Supreme Court should have jurisdiction to hear appeals on the merits of a decision of the Tribunal and, if so, under what circumstances (Issue 43).

6.112 A number of submissions supported a greater role for the Supreme Court, in particular, as a venue for hearing appeals from the Tribunal.¹⁷¹ Others generally supported appeals on the merits being available to the Supreme Court.¹⁷² One submission proposed that appeals be available to the Supreme Court on the merits, by leave if necessary, on the grounds that a consideration of whether a practitioner is a fit and proper person to remain on the roll involves questions of fact rather than law and therefore, if it is essential that the Court retain ultimate control over practitioners (as officers of the Court), the Court should not be limited to hearing appeals on questions of law.¹⁷³

6.113 One submission opposed appeals to the Supreme Court on the merits of a decision and supported appeals on questions of law on the grounds of “fairness and efficiency”.¹⁷⁴

6.114 The Bar Association submitted that appeals from the Tribunal to the Supreme Court should be governed by s 75A of the Supreme Court Act 1970 (NSW).¹⁷⁵ Section 75A governs appeals to the Supreme Court by way of re-hearing. It is important to note in this regard that re-hearings are not the same as retrials (or “de novo” hearings) in that, notwithstanding the court’s power to take further evidence on appeal,¹⁷⁶ an appeal on re-hearing is conducted on the transcript of evidence from the original hearing and witnesses are not called.¹⁷⁷ The Bar Association sees this as an important point that there should not be a de novo appeal (or retrial) on the grounds that it can be unfair to parties to impose on them an expensive re-hearing and expose the practitioner (and witnesses) to a form of “double jeopardy”.¹⁷⁸

6.115 The Commission is of the view that at least one layer of merits review is necessary. Since appeals on the merits will no longer be available to an Appeal Panel, such appeals, as well as appeals on questions of law, should be available to the Supreme Court. This is especially so since the Supreme Court has an inherent jurisdiction to deal with professional discipline of practitioners and, for that purpose, has jurisdiction to consider, on the merits, any allegation of misconduct.

6.116 As formulated before 1996, s 171F of the Legal Profession Act 1987 (NSW) provided that an appeal to the Supreme Court (in practice to the Court of Appeal) against the Legal Services Tribunal’s determination of a complaint was:

to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the original hearing … .¹⁷⁹

• practitioners were using the hearing before the Tribunal as a “dry run” before the hearing in the Supreme Court;
• allowing fresh evidence to be admitted and different cases to be put before the Court of Appeal was a waste of resources;
• appeals from other professional conduct tribunals could not be by way of de novo hearing in the Court of Appeal.¹⁸⁰

6.118 The question arises as to the nature of a hearing in the Supreme Court, given that it has a statutory appellate jurisdiction and an inherent jurisdiction with respect to discipline of legal practitioners. Where an appeal lies to the Supreme Court from an administrative authority, a provision that the appeal is to be by way of re-hearing generally means the appeal takes the form of a hearing de novo.¹⁸³ However the question ultimately depends on the construction of the relevant statutory provisions.¹⁸⁴ In 1999 the High Court held that the express preservation of the Supreme Court’s inherent jurisdiction in Part 10 related only to the Supreme Court’s power “to deal directly with cases other than appeals… where it is appropriate or necessary to invoke the inherent powers and jurisdiction of the Court”.¹⁸⁵ An appeal from the Tribunal was a different jurisdiction of the Court and governed by s 75A of the Supreme Court Act 1970 (NSW). Irrespective of the Court’s inherent jurisdiction, an appeal was not at large, the Court being confined to the complaint which was before the Tribunal.¹⁸⁶ This leaves a divide between the Court’s powers with respect to its inherent jurisdiction regarding practitioners and the Court’s powers in hearing appeals from determinations of the Tribunal under Part 10 of the Act.

6.119 At present the Supreme Court is bound by the rules of evidence both in conducting a fresh hearing and in admitting further evidence on a rehearing. By contrast, the Tribunal, if the Commission’s recommendations are adopted, will not be bound by the rules of evidence in admitting material at its hearings. In any case the Tribunal is presently not bound by the rules of evidence with respect to questions of unsatisfactory professional conduct.¹⁸⁷

6.120 Given the desirability of preserving the Supreme Court’s inherent jurisdiction and also giving it the same flexibility as the Tribunal to admit relevant material, the Commission has decided the preferred course of action will be to permit the Court:

• where there is an appeal from the Tribunal, to conduct a rehearing of the complaint before the Tribunal on the material before the Tribunal and also to admit fresh evidence without being bound by the rules of evidence; and
• where there is a hearing as part of the Court’s inherent jurisdiction, to admit evidence without being bound by the rules of evidence.

6.121 Currently proceedings that relate to a practitioner’s conduct under the Court’s inherent jurisdiction are assigned to the Court of Appeal while proceedings that arise under the Legal Profession Act 1987 (NSW) are assigned to the Common Law Division of the Court. The Commission is of the view that there is merit in considering whether all conduct matters should be heard by a Judge of the Supreme Court at first instance, rather than by the Court of Appeal on the grounds that a Court constituted by a single judge may be the more appropriate forum for receiving any necessary new material. A hearing before a single Judge would involve less expense than airing such matters in the Court of Appeal. However, this issue was not raised directly in IP 18 and no submissions have been received on it. In the Commission’s view additional consideration needs to be given to this question and appropriate consultation undertaken, including with the Supreme Court.

6.122 The form that a hearing takes (for example, when the matter has already been before the Tribunal, by way of rehearing or fresh hearing) should be determined in the Court’s discretion following receipt of submissions by the parties before the Court. The Court should, in exercising its discretion, be alive to the possibility that practitioners may be using the hearings before the Tribunal as “dry runs” and make such orders as to the conduct of proceedings as may be appropriate in the circumstances.

Recommendation 37

1. A hearing of the Supreme Court into the conduct of a legal practitioner (whether the matter has been before the Legal Services Division of the Administrative Decisions Tribunal or not) should:


(a) be conducted in such manner as the Court considers appropriate; and

(b) not be bound by the rules of evidence as to the admission of relevant material.


2. Where a hearing has already been conducted before the Legal Services Division of the Administrative Decisions Tribunal, the hearing may in the discretion of the Court be conducted by way of rehearing on the material that was before the Tribunal.

3. Consideration should be given to whether hearings of the Supreme Court into the conduct of a legal practitioner (whether the matter has been before the Legal Services Division of the Administrative Decisions Tribunal or not) should be conducted by a single Judge.

The LSC’s right to appear in the Supreme Court

6.123 The Legal Profession Act 1987 (NSW) grants the Bar Council and the Law Society the right to appear and be heard, by legal representative, in the Supreme Court when it exercises any of its functions in relation to barristers and solicitors respectively.¹⁹⁰ This includes appeals from the disciplinary process to the Court of Appeal as well as the exercise of the Supreme Court’s inherent jurisdiction in relation to legal practitioners generally. The rights conferred on the Bar Council and Law Society are absolute and allow the two organisations to participate fully in relevant proceedings without the need to seek the leave of the Court.¹⁹¹ The OLSC has submitted that the LSC should also have an absolute right to appear in the Supreme Court.¹⁹²

6.124 The High Court has said that the specific privilege granted to the professional bodies “does not affect the Court’s power to determine how the proceedings are to be conducted, including who may participate and with respect to what issues”.¹⁹³ This means that the LSC can always apply to appear and be heard in any relevant case.

6.125 Given that there are circumstances where it will be desirable for the LSC to appear and the professional bodies have decided not to, it seems unnecessary to require the LSC to seek leave in every case. The ability to appear is also consistent with the LSC’s supervisory role within the disciplinary system. Granting the LSC a right to appear and be heard in the Supreme Court (like the rights currently enjoyed by the Bar Council and the Law Society) will provide certainty about the ability of the LSC to appear and participate fully in matters before the Supreme Court. Therefore there appears to be no good reason why the LSC should not have the same right as the professional bodies to appear and be heard in the Supreme Court in relation to matters concerning the conduct of legal practitioners.

Recommendation 38

The Legal Services Commissioner should have the right to appear and be heard, by legal representative, in the Supreme Court. This right should be in relation to questions of conduct of practitioners, as well as in relation to Tribunal decisions that the Councils have chosen not to challenge.

6.126 It has been put to the Commission that there is no adequate or accessible register maintained that records disciplinary action taken against practitioners. This is particularly so in relation to restrictions placed on a practitioner’s practice as the result of disciplinary action, or undertakings made by a practitioner in the course of disciplinary action.¹⁹⁴ At one extreme, this failure adequately to record and make available such information can lead to a practitioner ignoring the orders of the Tribunal with impunity.

6.127 Two solutions have been proposed to this problem:

• That the Tribunal be required to maintain a publicly available register of orders made against practitioners as the result of disciplinary action; and
• That the professional associations be required to endorse practising certificates with any relevant orders or undertakings.¹⁹⁵

6.128 One other submission supported publishing the names of practitioners against whom complaints have been upheld.¹⁹⁶

6.129 One such scheme in the United States is the National Lawyer Regulatory Data Bank administered by the American Bar Association’s Center for Professional Responsibility. This database contains information about sanctions imposed on lawyers as the result of disciplinary hearings and may be accessed by members of the public on a user pays basis.¹⁹⁷

6.130 These proposals can be compared with the OLSC’s suggestion that a register be established that records all complaints made against practitioners and their outcomes, regardless of whether professional misconduct or unsatisfactory professional conduct has been proved. The OLSC sees this as another mechanism for improving consumer standards within the legal profession, stating that this would “act as an incentive for individual practitioners, as well as the profession generally, to develop appropriate mechanisms to reduce the number of complaints”.¹⁹⁸ However, insufficient thought has been given to protecting practitioners against malicious complaints by consumers involved in personal disputes, or even by competing lawyers. It is probably not sufficient to say, as the OLSC does, that “the onus would then fall on the OLSC and the professional bodies to explain why some practitioners attract more complaints than others”.¹⁹⁹

6.131 Access to records of Tribunal determinations, even without a register, is currently more difficult than it need be. The Supreme Court Rules 1970 (NSW) place restrictions on the ability of persons to inspect orders (reflecting determinations of the Tribunal) filed in the Supreme Court in relation to the conduct of practitioners. A person may not inspect, without the leave of the Court, any order made by the Tribunal²⁰⁰ where there has been a finding of unsatisfactory professional conduct,²⁰¹ but a person may inspect such an order when there has been a finding of professional misconduct.²⁰²

6.132 It is clearly desirable that members of the public and the profession should have access to all orders of the Tribunal regardless of whether they relate to findings of unsatisfactory professional conduct or professional misconduct. Maintaining the distinction between the treatment of matters involving unsatisfactory professional conduct and professional misconduct would also be inconsistent with other recommendations made in this Chapter. Consideration should, therefore, be given to removing the distinction currently drawn in the Supreme Court Rules 1970 (NSW) so that any person may inspect Tribunal orders without being restricted to cases where there has been a finding of professional misconduct.

6.133 Inspecting Tribunal orders that have been filed in the Supreme Court may not be the most efficient way of ensuring enforcement of the orders of the Tribunal or of providing information to consumers. The suggestion of establishing a register to record orders made in relation to proven complaints against practitioners has merit, both in terms of enforcement of the outcomes of disciplinary proceedings and also, to an extent, in terms of providing readily accessible consumer information about individual practitioners. The proposed register should be administered by the LSC as this is consistent with the LSC’s role as supervisor of the complaints system.

Recommendation 39

Consideration should be given to removing the distinction drawn in Pt 65 r 7(3A) and (3B) of the Supreme Court Rules 1970 (NSW) so that persons may inspect, without restriction, all orders made by the Legal Services Division of the Administrative Decisions Tribunal in relation to the conduct of practitioners.

Recommendation 40

The Legal Services Commissioner should have the power to establish a publicly accessible register recording orders made in relation to proven complaints against practitioners.

1. When the Administrative Decisions Legislation Amendment Act 1997 (NSW) took effect.

2. The Legal Services Tribunal was established under the now repealed Part 10 Div 7 of the Legal Profession Act 1987 (NSW). Part 10 Div 7 was originally inserted by Sch 2(2) of the Legal Profession Reform Act 1993 (NSW). It was repealed when the Administrative Decisions Legislation Amendment Act 1997 (NSW) took effect.

3. Medical Consumers Association Inc, Submission at 10.

4. In accordance with Administrative Decisions Tribunal Act 1997 (NSW) s 146: See NSW, Parliamentary Debates (Hansard) Legislative Council, 20 June 2000 at 7047.

5. Parliament of New South Wales, Report of the Proceedings Before Committee on the Office of the Ombudsman and the Police Integrity Commission Review of Administrative Decisions Tribunal (Sydney, 17 November 2000).

6. Parliament of New South Wales, Committee on the Office of the Ombudsman and the Police Integrity Commission, Parliamentary Inquiry into the Jurisdiction and Operation of the Administrative Decisions Tribunal (Discussion Paper, 2001).

7. Administrative Decisions Tribunal Act 1997 (NSW) Sch 2 Pt 3 cl 4.

8. P Barry, “As Caesar judges Caesar, bankrupt barristers go on their merry way” Sydney Morning Herald (27 February 2001) at 4; NSW, Parliamentary Debates (Hansard) Legislative Assembly, 7 March 2001 at 12359.

9. Medical Practice Act 1992 (NSW) s 147(3).

10. For example, there is a form for replies in the Legal Services Division: ADT, Annual Report 1998/1999 at 28.

11. ADT, Annual Report 1998/1999 at 13.

12. Its first meeting was on 26 May 1999: ADT, Annual Report 1998/1999 at 27.

13. Parliament of New South Wales, Committee on the Office of the Ombudsman and the Police Integrity Commission, Parliamentary Inquiry into the Jurisdiction and Operation of the Administrative Decisions Tribunal (Discussion Paper, 2001) at 16-22.

14. NSW Bar Association, Preliminary Submission 1 at para 37-38.

15. Law Society of NSW, Submission at 17.

16. Law Society of NSW, Submission at 17.

17. NSW Bar Association, Submission at 50.

18. Similar to powers held by the LSC and Councils under Legal Profession Act 1987 (NSW) s 155(3)(b).

19. NSW Bar Association, Submission at 51.

20. Legal Profession Act 1987 (NSW) s 155A(1).

21. Legal Profession Act 1987 (NSW) s 137(2).

22. See Legal Profession Act 1987 (NSW) s 139(2).

23. See Legal Profession Act 1987 (NSW) s 155A(3).

24. Law Society of NSW, Submission at 17; and Victorian Legal Ombudsman, Submission at 50.

25. See para 5.29.

26. See para 6.78-6.90 and 6.100-6.103.

27. ADT, Annual Report 1998/1999 at 28.

28. S Cuddy, Preliminary Submission at 3.

29. S Cuddy, Preliminary Submission at 3.

30. R S Cuddy, Submission at 7; F Combe, Submission at 11; Law Society of NSW, Submission at 17.

31. Victorian Legal Ombudsman, Submission at 52.

32. See also the comments in Parliament of New South Wales, Committee on the Office of the Ombudsman and the Police Integrity Commission, Parliamentary Inquiry into the Jurisdiction and Operation of the Administrative Decisions Tribunal (Discussion Paper, 2001) at 21.

33. Law Society of NSW, Preliminary Submission Issue 9. See also Law Society of NSW, Submission at 13.

34. R S Cuddy, Submission at 7; C Wall, Submission at 8; F Combe, Submission at 11; Law Society of NSW, Submission at 13, 17; NSW Bar Association, Submission at 40; Victorian Legal Ombudsman, Submission at 53.

35. See R S Cuddy, Submission at 7; W V Windeyer, Submission at 2; Law Society of NSW, Submission at 13.

36. W V Windeyer, Submission at 2.

37. See C Wall, Submission at 8.

38. Victorian Legal Ombudsman, Submission at 53.

39. NSW Bar Association, Submission at 40.

40. See Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 at 692 (Higgins J).

41.