6.1 The Legal Services Division of the Administrative Decisions 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 This Chapter deals with particular issues relating to the operation of the Tribunal.
TRIBUNAL PROCEDURE
Practice rules
6.2 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Tribunal Rules (Transitional) Regulation 1998 (NSW) which incorporates the rules which were formerly part of the now repealed Legal Profession Tribunal Rules 1995 (NSW). Some simple forms have also been available.3
6.3 The various divisions of the ADT are able to “adopt their own procedures by way of rules or informally, through directions or guidelines”.4 A Rules Committee has also been established to make rules with respect to practice and procedure.5
6.4 One submission has suggested that the Tribunal should urgently adopt rules and forms for the guidance of those appearing before it.6 The Commission welcomes submissions on the adequacy of the existing rules and what more can be done to improve procedures before the Tribunal.
6.5 Some particular omissions from the Tribunal’s express powers include the ability 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 counselling as to the legal practitioner’s professional obligations.7
Dealing with less complicated matters
6.6 Directions hearings are held every six to eight weeks to set timetables for the preparation of matters for hearing before the Tribunal.8 This time-frame may be too long for some less complex matters.
6.7 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.9 Informal individual treatment worked well because both practitioners and the Bar Council or Law Society Council (the Councils) were represented by experienced practitioners who were able to identify issues, sort out evidence between themselves, and prepare the matters for hearing on an informal basis.10
6.8 It has been suggested that there should be a means of expeditiously listing and disposing of less complex cases – for example where there is substantial agreement on facts and only legal argument is involved, or where the only argument is as to penalty. Even where legal practitioners admit the facts of the case against them, the process of removing them from the roll remains the same. The Law Society has asked for a provision that allows the Tribunal to order that a practitioner be struck from the roll with that practitioner’s consent “without the need for a detailed enquiry by the Tribunal”.11 The simplified process could perhaps be conducted before a registrar12 or a single member of the Tribunal.
Application of the rules of evidence
6.9 Section 168 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, is not bound by the rules of evidence except that the privilege against self incrimination in other proceedings is preserved.13
6.10 The issue of whether the rules of evidence apply to all Tribunal proceedings was canvassed extensively in relation to the National Competition Policy Review in 1998. The Office of the Legal Services Commissioner submitted that the rules of evidence should not apply to matters before the Tribunal.14 The Bar Association suggested that the rules of evidence be retained subject to some exceptions relating to legal professional privilege and confidentiality.15 The Law Society’s position was that “the Tribunal should not be subject to the rules of evidence in any matter”.16 The Report of the National Competition Policy Review merely noted that “consideration should be given to removing the distinction in the application of evidentiary rules” without saying which result would be preferred.17
6.11 Certainly, it may be readily acknowledged that 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.18 The Law Society, in its preliminary submission to this review, has 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”.19
6.12 The ADT, in its Annual Report, has suggested that there is scope for making its procedures more flexible by, for example, departing from the rules of evidence and summoning witnesses to give evidence or produce documents.20 However, given that the parties before the Tribunal will mostly be lawyers represented by lawyers, the system is much more likely to resemble an adversarial one. This is likely to be the reason behind the suggestion of the Law Society that the Tribunal might be given (express) inquisitorial powers.21
Public hearings
6.13 Generally, hearings before the ADT are open to the public.22 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”.
6.14 It was submitted that to hold Tribunal proceedings in the absence of the public is a denial of procedural fairness to consumers.23 In ICAC v Chaffey24 the New South Wales Court of Appeal considered the obligation to comply with the rules of procedural fairness where legislation confers an open discretion on a tribunal to hold hearings in private. The Court observed that while procedural fairness must be accorded to all parties in deciding whether to exercise this discretion, this does not mean that no party will suffer harm.
6.15 In 1998 the Law Society supported giving the Tribunal an unfettered discretion to close hearings. The Bar Association also supported the retention of the Tribunal’s discretion in this area on a number of grounds, including that “the damage done to a barrister’s reputation by adverse publicity could not be reversed, even by a favourable decision by the Tribunal”.25
6.16 On the other hand it has been suggested that there is no justification for the current distinction and that Tribunal proceedings should be open to the public unless the Tribunal finds a specific reason to order a closed hearing.26 This was the conclusion reached by the National Competition Policy Review in 1998.27
Publication of names of parties and witnesses
6.17 Until recent amendments to the Administrative Decisions Tribunal Act 1997 (NSW) there was a restriction on the publication of names of parties and witnesses. However, this restriction is now limited to proceedings in the Community Services Division of the ADT; appeals from a decision of the Community Services Division to an Appeal Panel; and such other proceedings as may be prescribed.28 This has removed a number of difficulties which had the potential to hinder the conduct of matters before the Tribunal.29
6.18 On the other hand, one submission has suggested that the publication of decisions of the Tribunal in full on the internet should be reconsidered because “in the course of giving judgment the Tribunal often refers to third parties and former clients of solicitors the display of whose names could be a source of embarrassment to them”. It has been suggested that initials be used to protect anonymity.30 However, the embarrassment would, presumably, be no more than that encountered by witnesses and third parties to any kind of proceedings, including negligence actions in the Supreme Court.
Declaratory orders
6.19 The stringent test for referral to the Tribunal, the “reasonable likelihood test”, makes it necessary for the Councils or 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. To remedy this situation, it has been suggested that it be possible to bring “test cases” before the Tribunal and that the Tribunal be empowered to make declaratory orders as to whether particular conduct breaches relevant standards.31 It has not been suggested who would bear the costs of such proceedings.32
Costs orders
6.20 At present, 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.
6.21 A number of issues were raised by the Bar Association in preliminary submissions 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”;
- the amount of costs to be awarded should be determined by an assessor rather than the Tribunal.33
TRIBUNAL OUTCOMES
Compensation orders
6.22 Currently the Tribunal may, in limited circumstances, order compensation of up to $10,000 or more if the practitioner consents. This power is limited to situations where the practitioner is found guilty of professional misconduct or unsatisfactory professional conduct and where compensation is not available from other sources. A greater amount of compensation may be awarded but only if the practitioner consents.34 This means that consumers may 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 Consumer Claims Tribunal. This may explain why compensation orders are rarely made by the Tribunal.35 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.36
6.23 It has been suggested 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);37 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).38
6.24 The final point may be related to problems caused for the Tribunal’s compensation jurisdiction by the fact that the “complainant” in some matters before the Tribunal is technically either one of the Councils or the LSC. It seems to be the case that neither the LSC nor the Councils will be involved in or promote claims for compensation by an original complainant.39
6.25 The Law Society in 1998 supported no change to the Tribunal’s jurisdiction, noting that there were already “several other avenues of civil remedy”.40 The Bar Association has previously suggested that the Tribunal’s jurisdiction should remain unchanged but that the monetary limit for compensation should be increased from $10,000 to $50,000.41 On the other hand, the Australian Competition and Consumer Commission supported increasing the Tribunal’s power with respect to compensation on the grounds that “a complaints system must provide effective redress for consumers as an alternative to civil action”.42
6.26 The National Competition Policy Review noted the availability of the Consumer Claims Tribunal which could order compensation for clients after a dispute with a legal practitioner, but also noted suggestions that members of the Tribunal might have considerable expertise in assessing costs of legal services.43 In any case, there will be, as already noted, some inconvenience to clients seeking to pursue a complaint with the LSC and also compensation from a separate system through the Consumer Claims Tribunal.
6.27 It has further been suggested that the current method of dealing with compensation orders before the Tribunal is inconvenient because the consideration of compensation is postponed until the completion of the hearing before the Tribunal.44 But on the other hand it is suggested that combining the issue of compensation with matters of conduct is unfair to practitioners and it is suggested that evidence (in form of admissions discharging onus in disciplinary proceedings) given before the Tribunal in relation to conduct should be excluded from consideration of compensation.45
APPEALS FROM THE TRIBUNAL
6.28 An appeal on the merits to an Appeal Panel of the Tribunal is by leave only, not as of right, while an appeal to the Supreme Court from the decision of an Appeal Panel is available only in relation to a question of law. This arrangement, under the Administrative Decisions Act 1997 (NSW),46 which effectively prevents the Supreme Court from hearing appeals on the merits of a Tribunal decision,47 has been identified as cutting across the Court’s ultimate authority in relation to individual practitioners’ fitness to practice. The Chief Justice has requested that consideration be given to restoring the Supreme Court’s ability to determine questions of fitness to practice in this context, by at least allowing appeals on the merits by leave of the Court.48
6.29 When appeals are available from a first instance decision of the Tribunal they are made to a similarly constituted Appeal Panel of the Tribunal. Between October 1998 and June 1999 only one appeal was lodged with the Appeal Panel.49 It has been questioned whether this form of appeal to a similarly constituted review panel is necessary.50
FOOTNOTES
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. For example, there is a form for replies in the Legal Services Division: ADT, Annual Report 1998/9 at 28.
4. ADT, Annual Report 1998/9 at 13.
5. Its first meeting was on 26 May 1999: ADT, Annual Report 1998/9 at 27.
6. S Cuddy, Preliminary Submission at 5.
7. NSW Bar Association, Preliminary Submission 1 at para 37-38.
8. ADT, Annual Report 1998/9 at 28.
9. S Cuddy, Preliminary Submission at 3.
10. S Cuddy, Preliminary Submission at 3.
11. Law Society of NSW, Preliminary Submission Issue 9.
12. S Cuddy, Preliminary Submission at 5.
13. Administrative Decisions Tribunal Act 1997 (NSW) s 73A, inserted by Administrative Decisions Tribunal Legislation Amendment Act 2000 (NSW) Sch 1[10].
14. New South Wales, Attorney General’s Department, National Competition Policy Review of the Legal Profession Act 1987 (Report, 1998) at 53; OLSC Submission to the National Competition Policy Review at 13-14.
15. National Competition Policy Review at 53.
16. National Competition Policy Review at 53.
17. National Competition Policy Review at 56.
18. National Competition Policy Review at 53.
19. Law Society of NSW, Preliminary Submission Issue 1.
20. ADT Annual Report 1998/9 at 13.
21. Law Society of NSW, Preliminary Submission Issue 13.
22. Administrative Decisions Tribunal Act 1997 (NSW) s 75.
23. NSW Legal Reform Group, Preliminary Submission at para 2.3.
24. (1993) 30 NSWLR 21.
25. National Competition Policy Review at 53.
26. OLSC, Preliminary Submission at 12.
27. National Competition Policy Review at 56.
28. Administrative Decisions Tribunal Act 1997 (NSW) s 126(1A), inserted by Administrative Decisions Tribunal Legislation Amendment Act 2000 (NSW) Sch 1[13].
29. S Cuddy, Preliminary Submission at 5. See also C Merritt (ed), “Hearsay” Australian Financial Review (30 June 2000) at 36-37; and C Merritt (ed), “Hearsay” Australian Financial Review (9 June 2000) at 30-31.
30. S Cuddy, Preliminary Submission at 5.
31. National Competition Policy Review at 56; OLSC Submission to National Competition Policy Review at 23.
32. See also para 5.2-5.6.
33. NSW Bar Association, Preliminary Submission 1 at para 37.
34. Section 171D.
35. OLSC, Preliminary Submission at 14.
36. OLSC, Annual Report 1998/9 at 23.
37. OLSC, Annual Report 1997/8 at 23; OLSC Annual Report 1998/9 at 23; OLSC, Preliminary Submission at 15; Law Society of NSW, Preliminary Submission Issue 14; National Competition Policy Review at 55. See also NSW Bar Association, Preliminary Submission 1 at para 39.
38. See Law Society of NSW, Preliminary Submission Issue 14.
39. Law Society of NSW, Professional Standards Department, Annual Report 1998/9 at 9; S Cuddy, Preliminary Submission at 4.
40. National Competition Policy Review at 54.
41. National Competition Policy Review at 54.
42. National Competition Policy Review at 55.
43. National Competition Policy Review at 55.
44. See S Cuddy, Preliminary Submission at 6.
45. See S Cuddy, Preliminary Submission at 6.
46. Sections 113(2) and 119.
47. It seems that there may be appeals in certain circumstances from first instance decisions of the Tribunal to the Court of Appeal: see Walsh v Law Society of NSW [1999] HCA 33.
48. J Spigelman, Preliminary Submission.
49. ADT, Annual Report 1998/9 at 37. But see Walsh v Law Society of NSW [1999] HCA 33.
50. See Law Society of NSW, Preliminary Submission Issue 15.
