LEGAL PROFESSIONAL CONDUCT COMMISSIONER v A PRACTITIONER [2024] SASCA 102

On Appeal from LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL (MS M PYKE KC, MR F CAMATTA AND MS A BURGESS AM) LPDT-22-04 Appellant: LEGAL PROFESSIONAL CONDUCT COMMISSIONER Counsel: MISS EF NELSON KC WITH MS P EWENS - Solicitor: LEGAL PROFESSIONAL CONDUCT COMMISSIONER Respondent: A PRACTITIONER Counsel: MR RJ WHITINGTON KC WITH MS H DOYLE - Solicitor: ILES SELLEY LAWYERS First Interested Party: LAW SOCIETY OF SOUTH AUSTRALIA Counsel: MR A LAZAREVICH - Solicitor: LAW SOCIETY OF SOUTH AUSTRALIA First Intervener: ATTORNEY-GENERAL (SA) Counsel: MR M WAIT SC WITH MS I NIKOLOUDAKIS - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 31/05/2024 File No/s: CIV-24-003582 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. LEGAL PROFESSION CONDUCT COMMISSIONER v A PRACTITIONER [2024] SASCA 102 Judgment of the Court of Appeal (The Honourable Chief Justice Kourakis, the Honourable Justice Bleby and the Honourable Justice Stein) 22 August 2024 ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS STATUTES - ACTS OF PARLIAMENT - STATUTORY POWERS AND DUTIES - CONSTRUCTION ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - FUNCTIONS OF TRIBUNALS STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - LEGISLATIVE HISTORY OF ACT STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - WHOLE ACT TO BE CONSIDERED STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - PURPOSIVE APPROACH -- 1 of 49 -- Following the investigation of a complaint regarding the conduct of the respondent, the Practitioner, the Legal Professional Conduct Commissioner (“the Commissioner”), the appellant, laid charges in the Tribunal alleging professional misconduct pursuant to the Legal Practitioners Act 1981 (SA) (“the Act”). The Practitioner applied to the Tribunal for orders dismissing or permanently staying the charges as an abuse of process. The Tribunal determined that charges had been laid without jurisdiction and the Tribunal had implied inherent jurisdiction to dismiss the charges or alternatively, the Tribunal could dismiss the charges as frivolous and vexatious pursuant to s 82(5) of the Act. The Tribunal’s reasons included that: • the Commissioner had not complied with the necessary regime in ss 77L and 77K of the Act prior to determining to lay the charges; • section 82 of the Act is a mere machinery provision and did not empower the Commissioner to circumvent the regime in subdivision 2 of division 2 of the Act; • the Commissioner had adopted the determination of Commissioner May and had not made the necessary determination to lay charges in the Tribunal; • the Tribunal was competent to consider the extent of its jurisdiction. The Commissioner seeks orders setting aside the Tribunal’s order on grounds including that the Tribunal erred in its construction of provisions of the Act and erred in finding as a fact that Commissioner Keane had not made the necessary determination to lay the charges. The substantial questions raised on appeal included: • whether the Commissioner’s power to lay a charge is contained in s 82 or s 77L of the Act; • whether the Commissioner’s satisfaction of the matters referred to in s 77L a pre-condition to the Commissioner laying a charge; • if so, the consequence of any failure to meet any such pre-condition; • the meaning of “evidence” in s 77J and 77L; • whether the Commissioner who makes the determination pursuant s 77L must be the same individual who lays the charge; • whether the Tribunal has the power to determine its jurisdiction; and • whether the Tribunal has jurisdiction to enquire into the Commissioner’s satisfaction of the matters referred to in s77J. Held (Stein AJA; Kourakis CJ and Bleby JA agreeing) allowing the appeal, setting aside orders of the Tribunal and remitting the matter to the Tribunal for inquiry into the charges laid by the Commissioner: 1. Section 82 of the Act contains the exclusive source of power for the Commissioner to lay charges. A charge may not be laid where the Commissioner has exercised powers under s 77J or where the time limit provided by s 82 has expired absent an extension of time or the charge being laid by the Attorney-General. 2. Section 77L does not confer a specific power to lay a charge. Section 77L mandates the laying of a charge if the Commissioner is satisfied the conduct cannot be dealt with adequately under s 77J unless the Commissioner determines it would not be in the public interest to lay a charge. 3. Satisfaction of the matters in s 77L is not a precondition to the Commissioner laying a charge pursuant to s 82 of the Act. -- 2 of 49 -- 4. The word “evidence” in ss 77H, 77J and 77L is not a technical reference to admissible evidence or evidence complying with the rules of evidence. Rather, “evidence” is evidence without any additional, implied qualification. 5. The Act does not pre-condition the laying of a charge on any required level of quality of evidence. The quality, sufficiency, reliability, cogency and weight of the evidence will fall for consideration by the Commissioner in assessing whether the conduct can adequately be dealt with by not laying a charge and exercising powers under the Act or whether it would not be in the public interest to lay a charge where the mandatory obligation to do so would otherwise apply. 6. Commissioner Keane had the power to lay the charges. 7. The Tribunal’s determination extended beyond forming an opinion as to the limits of its own jurisdiction to an evaluation of the Commissioner’s decision-making process. The Tribunal erred in dismissing the charges on the basis it had no jurisdiction to address the charges. Legal Practitioners Act 1981 (SA) ss 72, 77J, 77L, 82, 77C, 77K, 88A, 89, 77O, 77H, 77B; Legal Practitioners Disciplinary Tribunal Rules (SA) rr 4, 9, referred to. Viscariello v Livesey & Anor [2013] SASC 99; Viscariello v The Legal Practitioners Conduct Tribunal [2021] SASCFC 18; Barwick v Law Society of New South Wales (2000) 169 ALR 236, distinguished. Briginshaw v Briginshaw (1938) 60 CLR 336, discussed. Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Thiess v Collector of Customs (2014) 250 CLR 664; Clyne v Deputy Commissioner of Taxation (Cth) (1981) 150 CLR 1; Murphy v Farmer (1988) 165 CLR 19; Walsh v Loughnan [1991] 2 VR 351; George v Rockett (1990) 170 CLR 104; Iskra v Police (2003) 84 SASR 586; Zanetti v Hill (1962) 108 CLR 433; Citta Hobart Pty Ltd v Cawthorn (2002) 276 CLR 216; Re Adams and Tax Agents Board (1976) 12 ALR 239, considered. -- 3 of 49 -- -- 4 of 49 -- LEGAL PROFESSION CONDUCT COMMISSIONER v A PRACTITIONER [2024] SASCA 102 Court of Appeal — Civil: Kourakis CJ, Bleby JA and Stein AJA 1 KOURAKIS CJ: I concur in the orders proposed by Stein AJA and agree with her Honour’s reasons for them. 2 BLEBY JA: I would allow the appeal for the reasons given by Stein AJA. I agree with her Honour’s proposed orders. 3 STEIN AJA: Upholding the standards of competence and diligence expected of legal practitioners is vital in protecting consumers of legal services and maintaining public confidence in the administration of justice. This appeal raises questions about the proper construction of the provisions of the Legal Practitioners Act 1981 (SA) (“the Act”) which relate to the functions and powers of the Legal Profession Conduct Commissioner (“Commissioner”). 4 For the reasons which follow below, the appeal must be allowed. 5 The primary conclusions which give rise to that outcome are as follows. 6 The mandatory obligation to lay charges in s 77L of the Act is not the source of, nor a pre-condition to, the Commissioner’s power to lay charges which is exclusively contained in s 82 of the Act. 7 Part 6 of the Act empowers the Commissioner to lay charges in the Tribunal and to bring disciplinary proceedings against legal practitioners in the Supreme Court. The Commissioner has the power to impose sanctions on a legal practitioner in specified circumstances without laying charges or commencing disciplinary proceedings. Those powers primarily enable the Commissioner to act with the consent of the legal practitioner, but the Commissioner may also act without consent in the case of unsatisfactory professional conduct which meets certain criteria.1 8 The power of the Commissioner to sanction rather than lay charges requires the Commissioner to be satisfied there is “evidence” of unsatisfactory professional conduct or professional misconduct. This is in contrast to other references in the Act to the Commissioner’s satisfaction there is no evidence of such conduct.2 The reference to “evidence” is not qualified or described. Evidence in this context is not limited to admissible evidence or evidence attaining any particular threshold standard, quality or weight. 9 The quality, sufficiency, reliability, cogency and weight of the evidence available to the Commissioner will fall for consideration by the Commissioner in 1 Legal Practitioners Act 1981 (SA), s 77J. 2 Legal Practitioners Act 1981 (SA), s 77M(c)(i). -- 5 of 49 -- [2024] SASCA 102 Stein AJA 2 assessing whether he or she is satisfied whether the conduct in question can be adequately dealt with by the Commissioner not laying charges and exercising one of the available powers under the Act. If the Commissioner is not so satisfied, the Act imposes an obligation on the Commissioner to lay charges.3 In such cases, the quality, sufficiency, reliability, cogency and weight of the evidence will remain a relevant factor in the Commissioner’s determination whether it would not be in the public interest to lay charges such that the exception to the mandatory obligation will apply. 10 Commissioner Keane had the power to lay the charges. Background 11 In July 2020, the then Commissioner, Mr May, received a complaint about the Practitioner. Commissioner May conducted an investigation. 12 The day before his appointment as Commissioner expired in July 2022, Commissioner May determined to lay a charge in the Tribunal against the Practitioner for unsatisfactory professional conduct or professional misconduct. 13 The Practitioner was informed by letter dated 2 August 2022 of Commissioner May’s decision. Expressly noting that the Commissioner was not required to provide any reasons for the decision to lay a charge, the letter stated that the Commissioner’s reasons included: • the serious nature of the complaint; • the conflicting accounts on the evidence as between the complainant and the Practitioner; • that the Commissioner was not able to resolve the conflict without the evidence being tested, the appropriate forum for doing so being the Tribunal; • the need for the Practitioner to have the opportunity to cross-examine the complainant given the serious nature of the allegations and procedural fairness issues; • the Commissioner’s view that the complainant’s evidence, taken at its highest and strongest, if accepted by the Tribunal, would satisfy Briginshaw4 and amount to either unsatisfactory professional conduct or professional misconduct. 14 The Commissioner’s letter informed the Practitioner that he did not accept the matter was beyond his jurisdiction, there was no compelling basis for him to exercise his discretion under s 77C to close the complaint without further 3 Legal Practitioners Act 1981 (SA), s 77L. 4 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. -- 6 of 49 -- [2024] SASCA 102 Stein AJA 3 consideration of its merits and laying a charge would need to be done by Commissioner Keane. 15 The Practitioner responded by letter asserting that the Commissioner’s reasons did not disclose a proper basis for laying a charge; the requisite threshold for laying a charge under s 77L of the Act was not satisfied and to lay a charge absent the requisite level of satisfaction would mean the charge was an abuse of process and should permanently be stayed. The Practitioner reiterated that it would be an abuse if Commissioner Keane laid a charge based on Commissioner May’s determination and requested an opportunity to meet prior to such decision being made if Commissioner Keane decided to substitute his own determination. 16 Following the appointment of Mr Keane as Legal Profession Conduct Commissioner, in September 2022, Commissioner Keane by letter informed the Practitioner that he would not be setting aside the decision of Commissioner May and he would be proceeding with laying a charge in the Tribunal. 17 In October 2022, Commissioner Keane laid a charge in the Tribunal against the Practitioner alleging professional misconduct. The charge related to alleged inappropriate and uninvited physical and sexual contact with, or advances to, a female solicitor colleague, junior in age and position to the Practitioner. 18 The charge was laid pursuant to s 82(2) of the Act and contained the following recitals: A. The Commissioner lays the within charge in relation to a complaint made to his office by a complainant. B. Pursuant to his functions in s 72(1)(b) of the Act, the laying of the charge constitutes the action taken by the Commissioner following an investigation carried by him in accordance with his functions in s 72(1)(a) of the Act. C. The Commissioner lays the charge in circumstances where: (i) there are conflicting versions on the evidence between the Practitioner and the complainant, which the Commissioner is not in a position to resolve in the absence of the evidence being tested in an appropriate forum; and (ii) the allegations of the complainant against the Practitioner, taken at their highest and strongest, if accepted by the Tribunal, would, in the view of the Commissioner, amount to professional misconduct. 19 In December 2022, the Practitioner applied to the Tribunal for orders dismissing or permanently staying the charges as an abuse of process, or alternatively striking out certain of the charges. 20 The Commissioner opposed the application and on 23 January 2023, wrote to the Practitioner’s solicitors setting out some reasons for his opposition. Among other matters, the letter stated that the Commissioner had not purported to lay a charge pursuant to s 77L; a charge had been laid pursuant to s 82 of the Act and -- 7 of 49 -- [2024] SASCA 102 Stein AJA 4 the laying of the charge constituted the action taken by the Commissioner following investigation as permitted by his functions in s 72(1)(b) of the Act. 21 On the hearing of the application, the Tribunal received four exhibits, being the four letters to which I have referred above. 22 On 22 March 2024, the Tribunal dismissed the charge filed on 20 October 2022. Tribunal’s reasons for decision 23 The Tribunal concluded that the office of Commissioner is the personal appointment of an individual to that office, not a statutory office, and Commissioner Keane was required to make the necessary determination to lay the charge. 24 The Tribunal found Commissioner Keane did not undertake any independent evaluation of the evidence, nor look beyond what Commissioner May had referred to in his reasons for his decision to lay a charge.5 25 The Tribunal concluded that neither Commissioner Keane nor Commissioner May followed the regime required by s 77L and s 77K of the Act which the Tribunal described as being to: • consider and evaluate the whole of the evidence generated during the inquiry; • satisfy themselves a prima facie case existed to found the finding of unsatisfactory professional conduct or professional misconduct; • determine whether there were appropriate remedies available to them to deal with the conduct if such findings were made; • after satisfying themselves that having found there was evidence that could not be dealt with pursuant to s 77J, to then lay a charge pursuant to s 77L of the Act. 26 The Tribunal concluded that s 82 is no more than a machinery provision confirming the Commissioner’s standing to lay a charge.6 27 The Tribunal considered the Commissioner’s argument would allow him to circumvent and bypass the checks, balances and filtering processes of the investigation process in subdivision 2 of Division 2. That would give the Commissioner unfettered power to lay a charge untethered from the investigation 5 The Tribunal’s reasons footnoted exhibit P2, being the letter dated 2 August 2022, by which Commissioner May’s decision was conveyed to the legal practitioner. 6 Relying on Viscariello v Livesey & Anor [2013] SASC 99. -- 8 of 49 -- [2024] SASCA 102 Stein AJA 5 process when the prescribed investigation process and actions following investigation are comprehensive and intertwined. 28 The Tribunal rejected the Commissioner’s submission that the only express constraint upon him in laying a charge pursuant to s 82 was that he may not lay a charge if the power under s 77J had been exercised, or the timeframe in which to lay a charge had expired, as inconsistent with Viscariello v Livesey & Anor.7 The Tribunal also concluded that such an interpretation would be inconsistent with the principle requiring a general power to be read as not applying to the subject matter of a specific power.8 29 While accepting the charges and the factual allegations underpinning the charges are very serious, the Tribunal considered the seriousness of the charges could not impact on a proper consideration of the basis upon which the Commissioner laid the charges, in particular, whether the Commissioner properly exercised powers and the consequent jurisdiction of the Tribunal to hear the charges. 30 The Tribunal concluded that it was competent to consider the extent of its jurisdiction. 31 The Tribunal reiterated that it had determined that Commissioner Keane was required to make the determination to lay the charge against the Practitioner and he did not make that determination. The Tribunal then stated:9 The process of Commissioner May in reaching his determination as adopted by Commissioner Keane, who eschewed any reliance upon section 77L LPA bypassed the requirements of sections 77L and 77J LPA and the legislative purpose and scheme of subdivisions 2 and 3 of Division 2 a necessary precursor for the laying of charges. The necessary process was not complied with and no proper evaluation of evidence took place. The procedure was flawed. The tribunal finds it would be inconsistent with that legislative purpose for the tribunal to conclude it has jurisdiction to deal with the charge. 32 The Tribunal concluded it was without jurisdiction and determined it had an implied inherent jurisdiction to dismiss the charges. It further found that if that was wrong, the proceedings could be dismissed pursuant to s 82(5) as not having a proper basis and doomed to fail within the broad definition of frivolous and vexatious. 33 The Tribunal stressed that its determination was not a determination with respect to the merits of the allegations and the charges. 7 [2013] SASC 99 at [55] (White J). 8 Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7-8 (Gavan Duffy CJ and Dixon J). 9 Reasons at [115]. -- 9 of 49 -- [2024] SASCA 102 Stein AJA 6 Grounds of appeal 34 The Commissioner’s appeal raised the following grounds.10 1. The Tribunal erred at law by: (a) improperly construing ss 72, 77J, 77L and 82 of the Act in finding that: (i) the office of the Commissioner is a personal appointment and not a statutory office; (ii) the Commissioner can only lay a charge pursuant to s 77L and s 82 was solely a machinery provision; (iii) the Commissioner’s powers in ss 72(1)(a) and (b) and s 82(2) of the Act are general powers which do not apply or are excluded in operation in relation to the Commissioner’s laying of a charge as a result of the specific powers in ss 77J and 77L; (iv) the proceedings had no proper basis and were doomed to fail and could be dismissed by the Tribunal pursuant to s 82(5); (v) the Tribunal’s power to dismiss a charge as “frivolous and vexatious” extends to a power of dismissal on the basis that the Commissioner fell into jurisdictional error in laying the charge. (b) finding that: (i) the Commissioner’s argument regarding his functions and powers would bypass the statutory processes in sub-div 2 of div 2 of Part 6 and afford the Commissioner unfettered power to lay a charge pursuant to div 4 of Part 6; (ii) the Tribunal’s power to summarily dismiss the charge as frivolous and vexatious can apply where the Tribunal also found in respect of the charge that the factual allegations are very serious, there was no assertion by the respondent that he had been denied procedural fairness and it did not consider the merits of the charge or the credibility of the evidence upon which the Commissioner applies; (iii) the Tribunal has implied inherent jurisdiction to summarily dismiss the charge on the basis the Commissioner fell into jurisdictional error; (iv) the Tribunal has jurisdiction to conduct an inquiry into the basis upon which the Commissioner laid the charge, including as to his state of mind, whether he properly exercised his powers under sub-div 2 of div 2 of Part 6 preceding the laying of the charge and the consequent jurisdiction of the Tribunal to hear the charge. (c) treating correspondence from the Commissioner’s office as akin to a statement of reasons for a decision to lay a charge when no statement of reasons is 10 Notice of Appeal (FDN 1). -- 10 of 49 -- [2024] SASCA 102 Stein AJA 7 required to be provided and the document pre-dates the laying of charges by about two months; (d) adopting an absence of evidence as to the Commissioner’s state of mind as evidence of a fact, namely, that the Commissioner was not satisfied there was evidence of professional conduct when laying the charge; (e) in misapplying Barwick v The Law Society of New South Wales;11 (f) its failure to inquire into the conduct of the Practitioner pursuant to the requirement to do so under s 82(4) in circumstances where s 82(5) did not properly apply; 2. The Tribunal erred in finding as fact, including in the absence of any, or alternatively adequate, evidence of that fact, that in laying the charge, the Commissioner (Mr Keane) did not undertake any independent evaluation of the evidence at his disposal, did not look beyond the decision of the former Commissioner, Mr May, and satisfy himself as to the laying of the charge and did not make a determination to lay the charge. 3. The Tribunal erred by failing to provide any or adequate reasons for impugned findings of fact. The Commissioner sought orders: • setting aside the Tribunal’s order dismissing the charge; • that this Court retain carriage of the matter and assign the hearing and determination of the charge to a single Judge pursuant to its inherent jurisdiction and s 88A of the Legal Practitioners Act; or, • in the alternative, for the matter to be remitted to the Tribunal for it to conduct a fresh inquiry into the charge. 35 The Commissioner also sought orders that the appeal be heard together with an application for judicial review separately instituted by the Commissioner. That application was stayed pending determination of the appeal. Statutory interpretation principles 36 There is no dispute concerning the principles of statutory interpretation relevant to this appeal. 37 A statutory provision is construed by reference to its text, context and purpose.12 The task of statutory construction commences and ends with 11 [2000] HCA 2; (2000) 169 ALR 236. 12 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (McHugh, Gummow, Kirby and Hayne JJ). -- 11 of 49 -- [2024] SASCA 102 Stein AJA 8 consideration of the statutory text.13 Statutory text is considered in context, which includes legislative history and extrinsic material.14 An understanding of context has benefit insofar as it assists in determining the meaning of the statutory text.15 38 Generally speaking, a word or phrase in different sections of an Act will be given the same meaning.16 However, a presumption to that effect will yield to the context.17 Prior iterations of the Act The Act as originally enacted 39 I commence by considering the previous legislative provisions which assist in understanding the framework of Part 6 in its current form.18 40 Upon its introduction, the Legal Practitioners Act 1981 (SA) as originally enacted (“the original Act”) provided for investigations into the conduct of legal practitioners and the commencement of disciplinary proceedings against legal practitioners.19 41 The original Act established a Legal Practitioners Complaints Committee.20 The functions of the Committee were to: • receive, consider and investigate complaints of unprofessional conduct against practitioners; • conciliate; • admonish where, in the opinion of the Committee, a complaint had substance but may be adequately dealt with by admonishing; and 13 Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22]-[23] (French CJ, Hayne, Kiefel, Gageler and Keane JJ), quoting Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). 14 Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22]-[23] (French CJ, Hayne, Kiefel, Gageler and Keane JJ), quoting Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). 15 Thiess v Collector of Customs [2014] HCA 12, (2014) 250 CLR 664 at [22]-[23] (French CJ, Hayne, Kiefel, Gageler and Keane JJ), quoting Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). 16 Clyne v Deputy Commissioner of Taxation (Cth) [1981] HCA 40; (1981) 150 CLR 1 at 10 (Gibbs CJ) and 15 (Mason J, Aickin and Wilson JJ agreeing). 17 Clyne v Deputy Federal Commissioner of Taxation [1981] HCA 40; (1981) 150 CLR 1 at 10 (Gibbs CJ), 15 (Mason J, Aickin and Wilson JJ agreeing); Murphy v Farmer [1988] HCA 31; (1988) 165 CLR 19 at 27 (Deane, Dawson and Gaudron JJ). 18 For ease of reference I will refer to the various iterations of the Act after the original Act as the “Act”. 19 Legal Practitioners Act 1981 (SA), pt 6, as enacted. 20 Legal Practitioners Act 1981 (SA), pt 6, div 2, as enacted. -- 12 of 49 -- [2024] SASCA 102 Stein AJA 9 • lay charges of unprofessional conduct before the Tribunal. 42 The Committee could, of its own motion, investigate the conduct of a practitioner. The Committee was obliged at the direction of the Attorney-General or the Law Society (“Society”) to investigate. No direction could be given unless the Attorney-General or the Society had reasonable cause to suspect the practitioner had been guilty of unprofessional conduct.21 43 The Committee had powers to inspect documents and take copies of documents. 44 Where the Committee was satisfied that evidence of unprofessional conduct existed, it was obliged to report to the Attorney-General and the Society. 45 The original Act provided for the creation of a Tribunal called the Legal Practitioner’s Disciplinary Tribunal and for the appointment of its members.22 Section 82 of the original Act provided that a charge may be laid alleging unprofessional conduct on the part of a legal practitioner.23 Section 82(2) provided that a charge may be laid “under this section by the Attorney-General; the Committee; the Society; or a person claiming to be aggrieved by reason of the alleged unprofessional conduct”. A charge laid under s 82 was required to be in a form prescribed by Rules. 46 Where a charge had been laid, the Tribunal was required to enquire into the conduct of the practitioner. The Tribunal had the power to summarily dismiss any charge it considered frivolous or vexatious. Section 82 empowered the Tribunal to impose sanctions if, after conducting an inquiry, it was satisfied a practitioner was guilty of unprofessional conduct. The powers included recommending commencement of disciplinary proceedings in the Supreme Court. 47 The Tribunal had the power to summons persons, require the production of books and require a person to answer any relevant question. 48 The Act provided for a right of appeal to the Supreme Court against an order of the Tribunal. 49 The Supreme Court was empowered to make rules for the Tribunal to regulate its practice and procedure; to confer on the Tribunal any additional powers necessary or expedient for carrying out its function; and to make any other provision necessary or expedient for carrying into effect the provisions of the Part of the original Act relating to the Tribunal. 50 Section 89 of the original Act empowered the Attorney-General or the Society to institute disciplinary proceedings in the Supreme Court against the 21 At the time the original Act was introduced, the conduct the subject of potential disciplinary action was termed “unprofessional conduct”. 22 Legal Practitioners Act 1981 (SA), pt 6, div 3, as enacted. 23 Legal Practitioners Act 1981 (SA), pt 6, div 4, as enacted. -- 13 of 49 -- [2024] SASCA 102 Stein AJA 10 practitioner where the Tribunal, after inquiry, recommended disciplinary proceedings be commenced.24 This did not derogate from the inherent jurisdiction of the Supreme Court to discipline practitioners. Section 89 did not empower the Committee to bring such proceedings. Amendments to create and empower a Board in place of the Committee 51 The original Act was later amended to replace the Committee with a Board established under the Act.25 The functions of the Board relevantly replicated those of the Committee, albeit with minor modifications. The Board’s functions were as follows:26 • to investigate suspected unprofessional conduct by legal practitioners on the Board’s own motion or at the direction of the Attorney-General or the Society; • to receive, consider and investigate complaints; • to conciliate; • where, in the opinion of the Board, a complaint has substance but may be adequately dealt with by admonishing, to admonish the legal practitioner; and • to lay charges of unprofessional conduct before the Tribunal. 52 The Board was given the powers of investigation previously reposed in the Committee. The threshold for an own motion investigation or investigation on the direction of the Attorney-General or the Society was not amended. However, the Board had the ability to determine not to commence or continue an investigation if it was apparent to the Board the complaint was frivolous or vexatious.27 53 The Board had powers to require specified documents to be produced, to inspect documents and to take copies of documents. The Board had the power to require a practitioner to make a report. 54 The Board’s obligations to report were enhanced. Subject to exceptions in the case of conciliation, if in the course or in consequence of an investigation the Board was “satisfied that evidence of unprofessional conduct on the part of the legal practitioner exists”, the Board was obliged to report to the Attorney-General and the Society. The Board was also obliged to report to the Attorney-General and law enforcement and prosecution officers if the Board was satisfied there were reasonable grounds to suspect the commission of a criminal offence. 24 Legal Practitioners Act 1981 (SA), pt 6, div 5, as enacted. 25 Legal Practitioners (Miscellaneous) Amendment Act 1996 (SA). 26 Legal Practitioners Act 1981 (SA), pt 6, div 2, as at 11 April 1996. 27 Legal Practitioners Act 1981 (SA), s 76(1b), as at 11 April 1996. -- 14 of 49 -- [2024] SASCA 102 Stein AJA 11 55 There were no provisions dealing with the function of the Board to admonish beyond providing for that function in s 74. 56 The Board was not obliged to lay charges in any particular circumstances. 57 Some amendments were made to s 82, in particular, to substitute reference to the Committee with references to the Board. Section 82 remained the sole provision empowering the Board, the Attorney-General, the Society and a person claiming to be aggrieved to lay charges. Amendments to broaden the functions and powers of the Board 58 The Act was amended further28 to include, as a function of the Board, the commencement of disciplinary proceedings against legal practitioners in the Supreme Court on the recommendation of the Tribunal.29 59 The Board was empowered to notify a person it had reason to believe had suffered loss as a result of unprofessional or unsatisfactory conduct. 60 Specific provisions were inserted into the Act in relation to investigation of allegations of overcharging and conciliation of complaints. Conciliation did not prevent investigation, further investigation or laying a charge.30 61 A new provision was inserted in the Act to enable the Board to deal with relatively minor misconduct by consent. Section 77AB provided that if, after conducting an investigation, the Board was satisfied there was evidence of unprofessional or unsatisfactory conduct, but the misconduct in question was relatively minor and could be adequately dealt with under the subsection, the Board may, if the practitioner consented to such a course of action, determine not to lay charges and may instead exercise one or more specified powers. The enumerated powers were to reprimand, to impose conditions on the practitioner’s practising certificate and to make an order for the practitioner to make a specified payment or do or refrain from doing a specified act. An order under s 77AB had to be reduced to writing and be signed on behalf of the Board and by the practitioner. While there was no requirement upon the Board to receive submissions, consultation with the practitioner was implicit in the obligation for any order to be signed by the practitioner. Consent to the sanction imposed was implicit in the obligation for the written order to be signed by the practitioner. 62 While the Board could delegate powers and functions, it could not delegate its function of determining whether evidence existed of unprofessional or unsatisfactory conduct or its function of determining whether the misconduct was relatively minor and should be dealt with under s 77AB or determining whether to lay charges. 28 Legal Practitioners (Miscellaneous) Amendment Act 1998 (SA). 29 Legal Practitioners Act 1981 (SA), ss 74(1)(e), 89, as at 3 September 1998. 30 Legal Practitioners Act 1981 (SA), s 77B(7), as at 3 September 1998. -- 15 of 49 -- [2024] SASCA 102 Stein AJA 12 63 Section 82 was amended to include a time limit for laying charges. 64 It follows from the analysis above that prior to the introduction of Part 6 of the Act in its current form, there were three alternative pathways by which the Board could be obliged to conduct an investigation, being an own motion investigation, upon direction by the Attorney-General or the Society, or on receipt of a complaint. In the case of the Board’s own motion investigation or upon direction, the threshold for the obligation to investigate was reasonable cause to suspect requisite conduct. In the case of complaint, the threshold for investigation was a complaint which was not apparently frivolous or vexatious. There were no express procedural fairness obligations. There were obligations on the Board to report if satisfied there was evidence of requisite conduct. 65 The power to lay charges was conferred exclusively by s 82 of the Act which provided for charges to be laid by the Board, the Attorney-General, the Society or a person claiming to be aggrieved. Section 82 did not contain any express limitations or pre-conditions upon the power to lay charges, including in the case of charges laid by the Board. 66 The Act thus created a limited avenue for the Board to address minor matters by consent without the need to lay charges in the Tribunal. There was no right of appeal from a determination made pursuant to s 77AB. This was consistent with the practitioner having consented to the determination not to lay a charge and to the imposition of sanction. 67 The Board was empowered to issue disciplinary proceedings in the Supreme Court upon recommendation of the Tribunal (and not otherwise). The current Act 68 I commence by summarising relevant provisions of the Act as presently in force before turning to address the interpretation of the provisions in issue in the appeal. 69 The Act defines “Commissioner” as the person holding or acting in the office of Legal Profession Conduct Commissioner under Part 6, Division 2. 70 The Act addresses conduct of practitioners and enables potential action in relation to conduct meeting the definitions of unsatisfactory professional conduct or professional misconduct.31 71 Part 6, entitled “Investigations, inquiries and disciplinary proceedings”, is divided into a number of divisions. Division 1 addresses preliminary matters. Division 2 relates to the Commissioner. The Tribunal is constituted by Division 3. Division 4 concerns proceedings before the Tribunal. Division 5 relates to disciplinary proceedings before the Supreme Court. Division 6 concerns 31 See Legal Practitioners Act 1981 (SA), ss 68, 69, 70. Previously the Act addressed unsatisfactory conduct and unprofessional conduct. -- 16 of 49 -- [2024] SASCA 102 Stein AJA 13 publication of disciplinary action. Division 6A addresses interstate legal practice. Division 7 provides for annual reports and Division 8 concerns professional mentoring agreements. 72 Within Division 2, investigations by the Commissioner are addressed in subdivision 2 and action following investigation in subdivision 3. Subdivisions 4 and 5 relate to complaints of overcharging and conciliation. However, not all of the Commissioner’s powers and obligations are contained in Division 2. The powers to commence proceedings in the Supreme Court are contained in Division 5;32 the ability to refer a complain to an interstate regulatory authority lies in Division 6A;33 and the obligation to prepare and present a yearly report is in Division 7.34 The ability to enter professional mentoring agreements for the appointment of a professional mentor is contained in Division 8.35 Subdivision 1 of Division 2, Part 6 73 The Board is replaced by the Commissioner. Section 71 of the Act provides that there will be a “Legal Profession Conduct Commissioner” who is an agency of the Crown and will be appointed by the Governor. 74 Section 72 of the Act provides that the functions of the Commissioner are: • to investigate suspected unsatisfactory professional conduct or professional misconduct by legal practitioners in accordance with subdivision 2; • following an investigation, to take action authorised under subdivision 3 or to lay charges before the Tribunal; • to receive and deal with overcharging complaints; • to conciliate complaints; • to commence disciplinary proceedings against legal practitioners in the Supreme Court on the recommendation of the Tribunal or under ss 88A or 89; and • to carry out such other functions as are assigned to the Commissioner under the Act. 75 The Commissioner’s functions are thus those functions which previously reposed in the Board together with the additional functions of commencing 32 Legal Practitioners Act 1981 (SA), ss 88A, 89. 33 Legal Practitioners Act 1981 (SA), s 90AC. 34 Legal Practitioners Act 1981 (SA), s 90A. 35 Legal Practitioners Act 1981 (SA), s 90B. -- 17 of 49 -- [2024] SASCA 102 Stein AJA 14 disciplinary proceedings under s 88A or s 89 of the Act and carrying out further functions assigned by the Act. 76 Changes in the text articulating the Commissioner’s functions reflect changes in terminology with respect to the kinds of conduct susceptible to disciplinary proceedings or sanctions. 77 Section 74 enables the Minister to appoint a person to act as the Commissioner during any period for which no person is for the time being appointed or the Commissioner is absent from, or unable to discharge, official duties. 78 The Act enables the Commissioner to delegate to a person a function or power under the Act.36 Unlike the previous iterations of the Act, s 77 does not expressly prohibit delegation in relation to a determination under s 77J or to lay a charge. Subdivision 2 of Division 2, Part 6 79 The Commissioner may, on his or her own initiative, make an investigation into the conduct of a practitioner who the Commissioner has reasonable cause to suspect has been guilty of unsatisfactory professional conduct or professional misconduct.37 80 The Commissioner must make an investigation into the conduct of a practitioner if directed to do so by the Attorney-General or the Society or if a written complaint complying with certain requirements has been received in relation to the conduct of the practitioner.38 No direction may be given to the Commissioner unless the Attorney-General or the Society has reasonable cause to suspect the practitioner to whom the proposed investigation relates has been guilty of unsatisfactory professional conduct or professional misconduct. 81 These provisions largely replicate those which previously related to investigations by the Board. 82 At any stage after receiving a complaint, the Commissioner may close the complaint without further consideration of its merits.39 The Commissioner has broad powers to close a complaint and may do so for any of a number of specified reasons including the following: • the complaint is vexatious, misconceived, frivolous or lacking in substance; 36 Legal Practitioners Act 1981 (SA), s 77. 37 Legal Practitioners Act 1981 (SA), s 77B. 38 Legal Practitioners Act 1981 (SA), s 77B. 39 Legal Practitioners Act 1981 (SA), s 77C. -- 18 of 49 -- [2024] SASCA 102 Stein AJA 15 • the complainant has not responded adequately to a request for further information or has unreasonably failed to cooperate; • the subject matter has already been investigated; • the subject of the complaint is the subject of civil proceedings or would be better investigated by another investigatory or law enforcement body; • the Commissioner does not have the power to deal with the complaint; • the Commissioner is satisfied it is otherwise in the public interest to close the complaint. 83 A complaint may be closed without investigating or completing an investigation. The Commissioner is not required to give a complainant or practitioner an opportunity to be heard or to make a submission before determining whether or not to close a complaint.40 84 The three gateways to an investigation which previously existed remain extant. The threshold for investigation is, in effect, a reasonable cause to suspect unsatisfactory professional conduct or professional misconduct or a complaint that is not misconceived, frivolous, vexatious, lacking in substance or not in the public interest to investigate. 85 The Commissioner may notify the practitioner after receiving the complaint.41 However, if the Commissioner decides to investigate a complaint, the Commissioner must, as soon as practicable after making that decision to investigate, give the practitioner a summary or details of the complaint and inform the practitioner of the right to make submissions.42 That obligation is subject to the provisions of s 77F, which provide exceptions to the requirement for notification of a complaint. 86 The Commissioner is not obliged to give a practitioner a summary or details of the complaint or reasons for an investigation or notice about making submissions if the Commissioner reasonably believes that to do so would prejudice the investigation, prejudice investigation by another body or place a complainant or another person at risk of intimidation or harassment or prejudice pending court proceedings.43 In such a case, the Commissioner may postpone giving notice until of the opinion it is appropriate to do so. The Commissioner may, at his or her discretion, give the practitioner notice and a general statement of the nature of the complaint or reasons for investigation.44 40 Legal Practitioners Act 1981 (SA), s 77C(2)(3). 41 Legal Practitioners Act 1981 (SA), s 77D(1)(a). 42 Legal Practitioners Act 1981 (SA), s 77D(1)(b). 43 Legal Practitioners Act 1981 (SA), s 77F(1). 44 Legal Practitioners Act 1981 (SA), s 77F(2). -- 19 of 49 -- [2024] SASCA 102 Stein AJA 16 87 However, before making a determination (other than a determination not to investigate or to close a complaint) the Commissioner must, if the Commissioner has not already done so, give the practitioner a summary or details of the complaint and inform the practitioner of the right to make submissions.45 Thus, the Commissioner is obliged to give notice of the complaint and the right to make submissions at least by the time the Commissioner proceeds to a determination. 88 A practitioner in receipt of notice of an investigation may make submissions to the Commissioner about the subject matter of the investigation.46 The Commissioner must consider any submissions before determining what action is to be taken.47 A practitioner is not obliged to make submissions. 89 The addition of express procedural fairness provisions was concomitant with increases in the breadth of the Commissioner’s powers (discussed below). Subdivision 3 of Division 2, Part 648 90 Section 77H requires the Commissioner to report to the Attorney-General and the Society if, in the course of or in consequence of an investigation, the Commissioner is satisfied there is evidence of professional misconduct.49 The obligation arises on satisfaction there “is evidence”, without further qualification or description. 91 If the Commissioner comes into possession of information or evidence suggesting a criminal offence may have been committed, the Commissioner may pass the information or evidence on to the Crown Solicitor. The Commissioner must do so if the information or evidence suggests a serious offence has been committed.50 92 The Commissioner may notify a person the Commissioner has reason to believe has suffered loss as a result of unsatisfactory professional conduct or professional misconduct.51 93 Section 77J empowers the Commissioner to deal with unsatisfactory professional conduct or professional misconduct in specified circumstances which do not entail laying charges in the Tribunal. In the case of unsatisfactory professional conduct, the Commissioner has two potential pathways, one with the consent of the practitioner and the other without that consent. In the case of 45 Legal Practitioners Act 1981 (SA), s 77D. 46 Legal Practitioners Act 1981 (SA), s 77E. 47 Legal Practitioners Act 1981 (SA), s 77E(3). 48 In subdivision 3, a reference to “complainant” includes a person who made the complaint or the Attorney-General or Society in the case of an investigation at the direction of the Attorney-General or Society. 49 Legal Practitioners Act 1981 (SA), s 77H(1). 50 Legal Practitioners Act 1981 (SA), ss 77H(2), 77H(2a). 51 Legal Practitioners Act 1981 (SA), s 77R. -- 20 of 49 -- [2024] SASCA 102 Stein AJA 17 professional misconduct, the Commissioner’s only pathway is with the consent of the practitioner. 94 Turning first to unsatisfactory professional conduct, the Commissioner is empowered, if the practitioner consents to such a course of action, to determine not to lay a charge and to instead exercise a range of enumerated powers. Some powers may be exercised without the practitioner’s consent. The potential impact upon the practitioner is less significant when the practitioner does not consent. For example, the Commissioner may impose a fine without consent which may be less than the fine imposed when a practitioner consents. The Commissioner may suspend the practitioner’s practising certificate with the practitioner’s consent but may impose specified conditions on the practitioner’s practising certificate without the practitioner’s consent. 95 The Commissioner has powers to act in relation to former practitioners.52 In cases of professional misconduct, the Commissioner may act only with the consent of the former practitioner. In the case of unsatisfactory professional conduct by a former practitioner, the Commissioner may act with or without consent of the former practitioner, the only available sanction being the ability to fine. Ability of Commissioner to sanction without laying charges 96 The precise text of s 77J assumed some importance in argument. Section 77J provides as follows: (1) If, after conducting an investigation into conduct by a legal practitioner under this Division, the Commissioner is satisfied that there is evidence of unsatisfactory professional conduct and that the conduct in question can be adequately dealt with under this subsection— (a) the Commissioner may determine not to lay a charge before the Tribunal and may instead exercise any 1 or more of the following powers: (i) the Commissioner may reprimand the legal practitioner; (ii) the Commissioner may order the legal practitioner to apologise to any person affected by the practitioner's conduct; (iii) the Commissioner may order the legal practitioner— (A) to redo the work that is the subject of the investigation at no cost or to waive or reduce the fees for the work; or (B) to pay the costs of having the work that is the subject of the investigation redone; (iv) the Commissioner may order the legal practitioner to undertake training, education or counselling or be supervised; 52 Legal Practitioners Act 1981 (SA), s 77J. -- 21 of 49 -- [2024] SASCA 102 Stein AJA 18 (v) the Commissioner may order the legal practitioner to pay a fine not exceeding $5 000; (vi) the Commissioner may make an order imposing specified conditions on the practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate)— (A) relating to the practitioner's legal practice; or (B) requiring that the practitioner, within a specified time, complete further education or training, or receive counselling, of a type specified by the Commissioner; (vii) the Commissioner may, with the consent of the legal practitioner, make any other order the Commissioner considers appropriate in the circumstances; or (b) the Commissioner may, if the legal practitioner consents to such a course of action, determine not to lay a charge before the Tribunal and may instead exercise any 1 or more of the following powers: (i) if the Commissioner believes that the legal practitioner may be suffering from an illness or a physical or mental impairment, disability, condition or disorder (including an addiction to alcohol or a drug, whether or not prescribed) that has detrimentally affected his or her ability to practise the law, the Commissioner may order the legal practitioner to— (A) submit to a medical examination by a medical practitioner nominated by the Commissioner and to undertake any treatment recommended by the medical practitioner; or (B) receive counselling of a type specified by the Commissioner; or (C) participate in a program of supervised treatment or rehabilitation designed to address behavioural problems, substance abuse or mental impairment; (ii) the Commissioner may order the legal practitioner to enter into a professional mentoring agreement with the Commissioner and to comply with all conditions of the agreement; (iii) the Commissioner may make orders with respect to the examination of the legal practitioner's files and records by a person approved by the Commissioner (at the expense of the legal practitioner) at the intervals, and for the period, specified in the order; (iv) the Commissioner may order the legal practitioner to pay a fine not exceeding $10 000; (v) the Commissioner may make an order suspending the legal practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate) until the end of the period specified in the order (not exceeding 3 months); -- 22 of 49 -- [2024] SASCA 102 Stein AJA 19 (vi) the Commissioner may make an order requiring that the legal practitioner make a specified payment (whether to a client of the practitioner or to any other person) or do or refrain from doing a specified act in connection with legal practice. (2) If, after conducting an investigation into conduct by a legal practitioner under this Division, the Commissioner is satisfied that there is evidence of professional misconduct and that the misconduct in question can be adequately dealt with under this subsection, the Commissioner may, if the legal practitioner consents to such a course of action, determine not to lay a charge before the Tribunal and may instead exercise any 1 or more of the following powers: (a) the Commissioner may reprimand the legal practitioner; (b) the Commissioner may order the legal practitioner to apologise to any person affected by the practitioner's conduct; (c) if the Commissioner believes that the legal practitioner may be suffering from an illness or a physical or mental impairment, disability, condition or disorder (including an addiction to alcohol or a drug, whether or not prescribed) that has detrimentally affected his or her ability to practise the law, the Commissioner may order the legal practitioner to— (i) submit to a medical examination by a medical practitioner nominated by the Commissioner and to undertake any treatment recommended by the medical practitioner; or (ii) receive counselling of a type specified by the Commissioner; or (iii) participate in a program of supervised treatment or rehabilitation designed to address behavioural problems, substance abuse or mental impairment; (d) the Commissioner may order the legal practitioner to enter into a professional mentoring agreement with the Commissioner and to comply with all conditions of the agreement; (e) the Commissioner may make orders with respect to the examination of the legal practitioner's files and records by a person approved by the Commissioner (at the expense of the legal practitioner) at the intervals, and for the period, specified in the order; (f) the Commissioner may order the legal practitioner to pay a fine not exceeding $20 000; (g) the Commissioner may make an order imposing specified conditions on the practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate)— (i) relating to the practitioner's legal practice; or (ii) requiring that the practitioner, within a specified time, complete further education or training, or receive counselling, of a type specified by the Commissioner; -- 23 of 49 -- [2024] SASCA 102 Stein AJA 20 (h) the Commissioner may make an order suspending the legal practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate) until the end of the period specified in the order (not exceeding 6 months); (i) the Commissioner may make an order requiring that the legal practitioner make a specified payment (whether to a client of the practitioner or to any other person) or do or refrain from doing a specified act in connection with legal practice. (3) Despite section 72(3), subsections (1) and (2) do not apply in relation to a former legal practitioner, but if, after conducting an investigation into conduct by a former legal practitioner under this Division, the Commissioner is satisfied that there is evidence of unsatisfactory professional conduct or professional misconduct that occurred while the former legal practitioner remained a legal practitioner and that the conduct in question can be adequately dealt with under this subsection— (a) in the case of unsatisfactory professional conduct, the Commissioner may— (i) determine not to lay a charge before the Tribunal and may instead order the former legal practitioner to pay a fine not exceeding $5 000; or (ii) if the former legal practitioner consents to such a course of action, determine not to lay a charge before the Tribunal and may instead order the former legal practitioner to pay a fine not exceeding $10 000; and (b) in the case of professional misconduct, the Commissioner may, if the former legal practitioner consents to such a course of action, determine not to lay a charge before the Tribunal and may instead order the former legal practitioner to pay a fine not exceeding $20 000. (4) If the Commissioner proposes to exercise a power under subsection (1), (2) or (3), the Commissioner— (a) must provide the complainant (if any) and, in the case of the exercise of a power that does not require the consent of the legal practitioner or former legal practitioner, the legal practitioner or former legal practitioner with details of the proposal and invite them to make written submissions to the Commissioner within a specified period; and (b) must take into consideration any written submissions made to the Commissioner within the specified period, and may but need not consider submissions received afterwards; and (c) is not required to repeat the process if the Commissioner decides to exercise the power in a different way, or exercise a different power, after taking into account any written submissions received during the specified period. (5) The Commissioner may, in determining whether to exercise a power under this section in relation to a legal practitioner or former legal practitioner, take into account— (a) any previous action relating to the practitioner under this section or a corresponding previous enactment; or -- 24 of 49 -- [2024] SASCA 102 Stein AJA 21 (b) any finding relating to the practitioner by the Tribunal, the Supreme Court or a corresponding disciplinary body of— (i) professional misconduct or unsatisfactory professional conduct; or (ii) unprofessional conduct or unsatisfactory conduct (within the meaning of this Act as in force before the commencement of this Division). (6) An order under this section must be reduced to writing and be signed— (a) by or on behalf of the Commissioner; and (b) if it is an order requiring the consent of the legal practitioner or former legal practitioner—by the legal practitioner or former legal practitioner to whom it applies… 97 The language in s 77J which expresses the pre-conditions for the Commissioner to deal with conduct replicates the language which previously appeared in s 77AB (empowering the Board to act in relation to minor misconduct). In particular, there are no changes to the phrase “is satisfied that there is evidence of” conduct or to the reference to conduct that “can be adequately dealt with under this subsection”. 98 The language expressing the Commissioner’s potential courses of action also remains the same. The Commissioner “may, if the legal practitioner consents to such a course of action, determine not to lay” a charge and “may instead exercise any one or more of the following powers”. The phrase “if the legal practitioner consents to such a course of action” is omitted in respect of action which does not require consent. The language thus relevantly duplicates the text which appeared in the Act prior to the introduction of Part 6 in its current form. 99 Express procedural fairness obligations are incorporated in s 77J(4). This subsection requires the Commissioner to give the practitioner details of the proposal and invite written submissions if the Commissioner proposes to exercise a power under s 77J which does not require consent. The Commissioner must take any written submissions into consideration. 100 An order which requires the consent of the practitioner must be signed by the practitioner. Rights of appeal 101 The Act introduces limited rights of appeal, consistent with the restricted ability of the Commissioner to impose sanctions without consent. There is a right of appeal to the Tribunal from a determination made by the Commissioner which does not require the consent of the practitioner.53 The Tribunal must, in exercising its review jurisdiction, examine the determination of the Commissioner by way of 53 Legal Practitioners Act 1981 (SA), s 77K(1) provides for an appeal against a determination of the Commissioner under ss 77J(1)(a) or (3)(a)(i) being the two provisions which enable the Commissioner to act without consent. -- 25 of 49 -- [2024] SASCA 102 Stein AJA 22 rehearing.54 On such rehearing, it must give the correct or preferable decision but have regard to and give appropriate weight to the determination of the Commissioner.55 The procedure on rehearing includes examination of the evidence or material before the Commissioner, unless such evidence is to be excluded, together with consideration of any further evidence or material the Tribunal decides to admit for the purposes of the rehearing.56 The Tribunal is given power on the hearing of the appeal to affirm, vary, quash or reverse the determination.57 102 There is no right of appeal from a determination of the Commissioner where the consent of the practitioner is required. Mandatory obligation to lay a charge 103 In contrast with previous versions of the Act, the Act imposes a mandatory obligation upon the Commissioner to lay a charge in certain circumstances. 104 Section 77L provides as follows: If, after conducting an investigation into conduct by a legal practitioner or former legal practitioner under this Division, the Commissioner is satisfied that— (a) there is evidence of unsatisfactory professional conduct or professional misconduct by the practitioner or former practitioner; and (b) the conduct in question cannot be adequately dealt with under section 77J, the Commissioner must, subject to section 82(2a), lay a charge before the Tribunal in relation to the conduct unless the Commissioner determines that it would not be in the public interest to do so. 105 The reference to “evidence of” unsatisfactory professional conduct or professional misconduct thus appears in both s 77J and s 77L. Neither section describes or expressly qualifies the reference to “evidence”. 106 Mirroring s 77J, in which the Commissioner must be satisfied the conduct in question can be dealt with under s 77J, s 77L requires that the Commissioner must be satisfied the conduct cannot be adequately dealt with under s 77J. In that case, the Commissioner is obliged to lay a charge unless the Commissioner determines it would not be in the public interest to do so. 107 In contrast to s 77J(4), s 77L does not oblige the Commissioner to provide the practitioner with the opportunity to make written submissions. 108 I return to discuss the interrelationship between sections 77J, 77K and 82 and their meaning below. 54 Legal Practitioners Act 1981 (SA), s 77K(3)(a). 55 Legal Practitioners Act 1981 (SA), s 77K(3)(b). 56 Legal Practitioners Act 1981 (SA), s 77K(3c). 57 Legal Practitioners Act 1981 (SA), s 77K(4). -- 26 of 49 -- [2024] SASCA 102 Stein AJA 23 Requirement to provide reasons 109 The Commissioner is required to provide reasons for certain determinations.58 The Commissioner must give reasons for decisions not to investigate a complaint or to close a complaint. The Commissioner must provide written reasons if the Commissioner determines, after conducting an investigation under the Division, that there is no evidence of unsatisfactory professional conduct or professional misconduct. There is also such an obligation if the Commissioner determines there is evidence of such conduct, the conduct cannot be adequately dealt with under s 77J, but it would not be in the public interest to lay a charge. 110 The Commissioner is not obliged to provide written reasons if the Commissioner acts pursuant to s 77J (whether with or without consent) or lays charges in the Tribunal or commences disciplinary proceedings in the Supreme Court. 111 The obligation to provide reasons is thus limited to those circumstances in which the outcome of a complaint or direction to investigate is that no action will be taken in relation to the practitioner. Commissioner’s powers in investigation 112 In the context of complaint investigations (including on the Commissioner’s own initiative or at the direction of the Attorney-General or the Society), the Commissioner’s powers include requiring a practitioner to produce documents, provide written information or otherwise cooperate. The Commissioner can obtain warrants to facilitate searches for documents or material.59 113 However, in contrast with the powers of the Tribunal, the Commissioner cannot compel a person to give oral evidence on oath or conduct hearings to facilitate the calling of evidence or cross-examination of witnesses. This has the potential to limit the extent of the Commissioner’s ability to gather and assess evidence in certain cases including those based solely on inconsistent accounts of an event as between complainant and practitioner. Division 4, Part 6 – Disciplinary proceedings before the Tribunal Section 82 114 Section 82 was amended to substitute a reference to the Commissioner in place of a reference to the Board and, relevantly, to update the reference to the kind of conduct which may be the subject of charges. The section replicates in the Commissioner the power to charge which was previously conferred on the Board. 115 Section 82 commences with the phrase “subject to this section”. The section precludes laying charges if the Commissioner has exercised a power under s 77J. 58 Legal Practitioners Act 1981 (SA), s 77M. 59 Legal Practitioners Act 1981 (SA), sch 4. -- 27 of 49 -- [2024] SASCA 102 Stein AJA 24 There is no express cross reference to s 77L nor express requirement for compliance with s 77J or s 77L as a pre-condition to laying charges. 116 The Tribunal’s express power to dismiss a charge remains founded on the charge being frivolous or vexatious. 117 Consistent with previous iterations of the Act, the Tribunal must afford to any practitioner a reasonable opportunity to call and give evidence, to examine or cross-examine witnesses and to make submissions to the Tribunal.60 The Tribunal may summons persons to attend before it, require the production of documents, inspect documents, require any person to truly answer relevant questions and to prepare a document or comply with reasonable directions.61 The Tribunal may stay proceedings. However, if proceedings are stayed, the practitioner’s practising certificate is suspended until the proceedings are complete unless the Tribunal considers there is good reason for not suspending the certificate.62 118 The Tribunal has powers to sanction upon findings of guilt in contrast with the Commissioner’s powers to make orders upon satisfaction of the matters in s 77J.63 119 The Tribunal may make costs orders including against a practitioner the subject of a charge under s 82. Adverse costs orders may be made against the practitioner if the practitioner refused to consent to the exercise of a power by the Commissioner under s 77J or if the Tribunal finds the practitioner guilty and considers the refusal of the practitioner to consent to the exercise of powers by the Commissioner was unreasonable.64 120 There is a right of appeal to the Supreme Court against a decision of the Tribunal.65 121 I set out s 82 in full below. Division 5, Part 6 – Disciplinary proceedings before the Supreme Court 122 Section 88A of the Act broadens the Commissioner’s powers to commence disciplinary proceedings beyond those previously reposed in the Board. Without derogating from the Supreme Court’s inherent jurisdiction, the Court may act under its inherent jurisdiction on the application of the Attorney-General, the Commissioner or the Society. 123 Section 89 provides for the institution of disciplinary proceedings in the Supreme Court upon the recommendation by the Tribunal. In addition, s 89(1)(a) enables the Commissioner, without laying a charge before the Tribunal, to institute 60 Legal Practitioners Act 1981 (SA), s 83. 61 Legal Practitioners Act 1981 (SA), s 84. 62 Legal Practitioners Act 1981 (SA), s 84C. 63 Legal Practitioners Act 1981 (SA), s 82(6). 64 Legal Practitioners Act 1981 (SA), s 85(1a). 65 Legal Practitioners Act 1981 (SA), s 86. -- 28 of 49 -- [2024] SASCA 102 Stein AJA 25 disciplinary proceedings in the Supreme Court if the Commissioner is of the opinion the name of a practitioner should be struck off the roll. Tribunal Rules 124 In the Legal Practitioners Disciplinary Tribunal Rules (“the Rules”), “complainant” is defined as a person laying a charge under s 82 of the Act. 125 The Rules require a charge laid under s 82 of the Act to be in the form set out in the Schedule. The Rules contain requirements for signature and service.66 126 Rule 9 provides that before or at the hearing of any proceedings, the Tribunal may make such order or direction as the Tribunal in its discretion sees fit as to discovery and inspection, further particulars of any charge, the procedure to be followed at the hearing, any other procedure with respect to the charge and waiver of compliance with any of the Rules. 127 The Rules provide that in the hearing and determination of any proceedings, subject to any provisions of the Act, the Tribunal is required to observe such of the rules of evidence as apply from time to time to the hearing of civil proceedings in the Supreme Court.67 However, in any particular proceedings the Tribunal may inform its mind in such a manner as it thinks fit if it is satisfied that doing so will avoid undesirable prolixity or allow substantial saving in costs. The Tribunal may allow evidence to be adduced which would otherwise be inadmissible or unavailable.68 Construction of relevant provisions of Part 6 128 The appeal raises a number of questions of statutory interpretation of provisions in Part 6. As they are interrelated, I address them together. 129 The primary questions raised by the appeal are: • Is the Commissioner’s power to lay a charge contained in s 82 or s 77L? • Is the Commissioner’s satisfaction of the matters referred to in s 77L a pre-condition to the Commissioner laying charges? • If so, what is the consequence of any failure to meet any such pre- condition? • What is meant by “evidence” in s 77J and 77L? • Must the Commissioner who makes the determination pursuant s 77L be the same individual who lays the charges? 66 The Rules, r 4. 67 The Rules, r 9. 68 The Rules, r 9. Nothing in the Rules affects s 84(7) of the Act. -- 29 of 49 -- [2024] SASCA 102 Stein AJA 26 • Does the Tribunal have the power to determine its jurisdiction? • Does the Tribunal have jurisdiction to enquire into the Commissioner’s satisfaction of the matters referred to in s77J? Power to lay charges – s 82 130 The Commissioner’s position is that the power to lay a charge is contained in s 82 and is not an exercise of the Commissioner’s function to take an action under subdivision 3. The Attorney-General and the Society agree that the power to charge lies in s 82. The Practitioner takes a contrary position, submitting that s 82 is fundamentally a provision affording standing to bring proceedings before the Tribunal which rests upon an anterior implication concerning the power to do so. The Practitioner’s position relies on the power of the Attorney-General and the Society to lay charges as inherent in their status and functions. In the case of the Commissioner, the Practitioner contends the power is expressly conferred by s 77L. This submission is founded upon, among other things, the structure and purpose of Part 6, the text of ss 77J and 77L, the “careful specification of roles and safeguards” in Part 6 which cannot be circumvented69 and the contention that the grant of a specific power in s 77L, subject to tightly confined pre-conditions, negatives the availability of a power to do such things unfettered by those conditions. 131 I do not agree with the Practitioner’s interpretation for the following reasons. 132 Section 82 of the Act provides as follows: (1) Subject to this section, a charge may be laid under this section alleging unsatisfactory professional conduct or professional misconduct— (a) on the part of any legal practitioner; or (b) on the part of any former legal practitioner who was at the time of the alleged unsatisfactory professional conduct or professional misconduct a legal practitioner. (1a) A charge may not be laid before the Tribunal relating to conduct by a legal practitioner or former legal practitioner if the Commissioner has exercised a power under section 77J in relation to the conduct. (2) A charge may be laid under this section by— (a) the Attorney-General; or (b) the Commissioner; or (c) the Society; or 69 Viscariello v Livesey & Anor [2013] SASC 99 at [55] (White J). -- 30 of 49 -- [2024] SASCA 102 Stein AJA 27 (d) a person claiming to be aggrieved by reason of the alleged unsatisfactory professional conduct or professional misconduct. (2a) A charge may not be laid before the Tribunal more than 5 years after the day on which the person laying the charge became aware of the conduct to which the charge relates unless— (a) the charge is laid by the Attorney-General; or (b) the Tribunal allows an extension of time. (2c) A charge may be laid before the Tribunal despite the fact that criminal proceedings have been or are to be commenced in relation to a matter to which the charge relates. (3) A charge laid under this section must be in the form prescribed by rules under this Division. (4) Where a charge has been laid under this section, the Tribunal must, subject to subsection (5), inquire into the conduct of the legal practitioner or former legal practitioner to whom the charge relates. (5) The Tribunal may summarily dismiss any charge that it considers frivolous or vexatious and may, for the purpose of dealing with such a charge, consist of 1 member. (6) If after conducting an inquiry under this section the Tribunal is satisfied— (a) that a legal practitioner is guilty of unsatisfactory professional conduct or professional misconduct it may exercise any one or more of the following powers: (i) it may reprimand the legal practitioner; (ib) it may make orders with respect to the examination of the legal practitioner's files and records by a person approved by the Tribunal (at the expense of the legal practitioner) at the intervals, and for the period, specified in the order; (ii) it may order the legal practitioner to pay a fine not exceeding— (A) $50 000; or (B) if the Tribunal is constituted of 1 member in accordance with section 80(1a)(a)—$10 000; (iii) it may make an order imposing conditions on the legal practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate)— (A) relating to the practitioner's legal practice (provided that, in the case of an order made without the consent of the practitioner, such conditions must not operate for a period exceeding 12 months); or -- 31 of 49 -- [2024] SASCA 102 Stein AJA 28 (B) requiring that the legal practitioner, within a specified time, complete further education or training, or receive counselling, of a specified type; (iv) it may make an order suspending the legal practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate) until the end of the period specified in the order, not exceeding— (A) 12 months; or (B) if the Tribunal is constituted of 1 member in accordance with section 80(1a)(a)—3 months; (v) it may, unless constituted of 1 member in accordance with section 80(1a)(a), recommend that disciplinary proceedings be commenced against the legal practitioner in the Supreme Court; or (b) that a former legal practitioner was, while he or she remained a legal practitioner, guilty of professional misconduct—it may order the former legal practitioner to pay a fine not exceeding— (i) $50 000; or (ii) if the Tribunal is constituted of 1 member in accordance with section 80(1a)(a)—$10 000; or (c) that a former legal practitioner was, while he or she remained a legal practitioner, guilty of unsatisfactory professional conduct—it may order the former legal practitioner to pay a fine not exceeding— (i) $25 000; or (ii) if the Tribunal is constituted of 1 member in accordance with section 80(1a)(a)—$5 000. (6b) A condition imposed on a practising certificate or interstate practising certificate pursuant to an order under this section may be varied or revoked at any time on application by the legal practitioner. (7) After completing an inquiry under this section, the Tribunal must transmit the evidence taken by the Tribunal on the inquiry together with a memorandum of its findings to the Attorney-General, the Society and the Commissioner. (8) If, after conducting an inquiry into a charge alleging professional misconduct by a person who is a legal practitioner or former legal practitioner, the Tribunal— (a) is not satisfied that the person is guilty of professional misconduct; but (b) is satisfied that the person is guilty of unsatisfactory professional conduct, the Tribunal must find the person not guilty of professional misconduct, but may find the person guilty of unsatisfactory professional conduct. 133 The language of s 82 is clear and unambiguous. By its express terms, s 82 contains the exclusive source of power for the Commissioner to lay charges. -- 32 of 49 -- [2024] SASCA 102 Stein AJA 29 134 In providing that “subject to this section, a charge may be laid under this section”, s 82 expressly empowers the laying of charges under s 82, subject to its provisions. A charge may not be laid in two situations. These situations are where the Commissioner has exercised powers under s 77J (whether with or without consent) or where the time limit within s 82 for the laying of charges has expired (absent an extension of time or the charges being laid by the Attorney-General).70 Despite s 82 carving out from the ability to lay charges those occasions upon which the Commissioner has exercised powers under s 77J, the section does not cross refer to s 77L either as an express pre-condition to, or source of power for, the Commissioner laying charges. 135 Various requirements within s 82 are expressly referable to charges laid under “this section”: for example, compliance with the form prescribed by the Rules, the obligation upon the Tribunal to inquire and the provisions empowering the Tribunal to impose sanctions. There are no equivalent requirements in s 77L. 136 Section 82(2a) expressly addresses costs when the Commissioner has laid a charge under s 82 following the refusal of a practitioner to give consent to the exercise of powers under s 77J. This is consistent with charges being laid under s 82. It is to be noted that the Rules also refer to charges laid under s 82. 137 While the Practitioner sought to limit the act of laying charges pursuant to s 82 as merely a ministerial action, rather than the source of power, that fails adequately to address the express language of s 82 and the absence of any such express power in s 77L. Section 77L does not by its express words or its context create or confer a specific power to lay a charge, nor is an implication to such effect open on the face of the text and context of the provision. Section 77L simply imposes an obligation on the Commissioner to lay charges in specified circumstances. 138 The reference in s 72 to the Commissioner, following investigation, taking “action authorised under subdivision 3 or laying charges” envisages alternate pathways in which laying charges falls outside subdivision 3 and thus s 77L. 139 While various powers under the Act, including to lay a charge, are conferred upon the Attorney-General and the Society, the Commissioner is the primary repository of regulatory functions in relation to legal practitioners. It would be incongruous to construe s 82 as conferring a perfected power to lay a charge on the Attorney-General, the Society and a person aggrieved by the practitioner’s conduct, yet not the Commissioner. 140 The development of the provisions of the Act in its various iterations is consistent with s 82 constituting the sole source of power to charge including in the case of the Commissioner. If it had been Parliament’s intention to remove from the Commissioner the source of power previously reposed in the Board to lay 70 Legal Practitioners Act 1981 (SA), ss 82(1a), 82(2a). -- 33 of 49 -- [2024] SASCA 102 Stein AJA 30 charges pursuant to s 82 and to insert that power into s 77L, it would be expected that Parliament would have inserted clear words in the Act to achieve that outcome. 141 The consistency with which the language of Part 6 of the Act replicates previous iterations of the provisions lends support to the conclusion that the amendments were intended to broaden the powers of the Commissioner and introduce greater flexibility in sanction, while concurrently affording increased procedural fairness and protection to practitioners. It does not support any derogation from the Commissioner’s powers or the existence of an exclusive pathway through s 77L to the laying of charges. 142 The second reading speech71 assists in understanding the purpose of the amendments and the mischief to which they were directed. The speech set out the purpose of the amendments as seeking to modernise the regulation of the legal profession, provide greater harmonisation for South Australian practitioners and to make substantial improvements to the disciplinary system with a view to improving the system for both consumers and practitioners, with particular focus on protection for consumers of legal services. 143 The second reading speech72 referred to replacing the Board with the Commissioner with increased powers and providing a new procedure for the Supreme Court to deal with practitioners posing an immediate risk to the public. As well as taking over the powers and duties of the Board, the Commissioner was to have new powers to make binding decisions imposing sanctions without consent in some cases and to impose a wider range of disciplinary sanctions with the consent of the practitioner. It was expected this would reduce demand on the Tribunal and avoid the need for Tribunal proceedings where there was no dispute the practitioner had acted wrongly. 144 The second reading73 speech mentioned the ability of the Commissioner to apply directly to the Supreme Court to have a practitioner struck off the roll on the ground of an indictable offence or for some other reason and for the Commissioner, the Society or the Attorney-General to apply to the Court in its inherent jurisdiction. 145 Amendments to s 82 were described in the second reading speech as minor; consequential on the change in terminology from unprofessional or unsatisfactory conduct to unsatisfactory professional conduct or professional misconduct; to reflect the establishment of the position and powers of the Commissioner; to specify the period of time within which charges must be laid before the Tribunal; and to increase maximum sanctions. 71 South Australia, Parliamentary Debates, House of Assembly, 19 March 2013, 4816 (John James Snelling). 72 South Australia, Parliamentary Debates, House of Assembly, 19 March 2013, 4816 (John James Snelling). 73 South Australia, Parliamentary Debates, House of Assembly, 19 March 2013, 4816 (John James Snelling). -- 34 of 49 -- [2024] SASCA 102 Stein AJA 31 Interaction between sections 77J, 77L and 82 146 The Commissioner contended that the Tribunal erred in its construction of s 77L and that it was an error to conclude that the reference to “evidence” in s 77L imports a requirement for the Commissioner to reach a requisite mental threshold of satisfaction at the Briginshaw74 level as a pre-condition to laying a charge. 147 The Attorney-General submitted that the detailed nature of the pathways contained in subdivision 3 are intended to exhaust the possible ways in which the Commissioner may proceed following an investigation. Accordingly, it is not open to the Commissioner to complete an investigation and lay a charge other than pursuant to s 77L. However, the position of the Attorney-General, with which the Society agreed, was that any failure to comply with s 77L would not undermine the validity of the charge or the Tribunal’s jurisdiction to hear and determine the charge on the application of Project Blue Sky v Australian Broadcasting Authority (“Project Blue Sky”).75 148 The Practitioner’s position was that the real question to be considered was whether the jurisdiction of the Tribunal was properly invoked, and that Project Blue Sky has no application. 149 The Practitioner relied on a reference by White J in Viscariello v Livesey76 to the Act establishing a number of checks and balances on the discharge by the Board of its functions and on the circumstances in which the Board would lay charges before the Tribunal, even if satisfied of evidence of requisite conduct.77 150 In Viscariello v Livesey,78 White J considered the meaning of a “person claiming to be aggrieved” in s 82(2), ultimately concluding that Mr Viscariello did not have standing to lay a charge in the Tribunal.79 151 After referring to checks and balances in the Act and characterising the checks as “filters”, White J observed that it would not be expected that the Attorney-General or the Society would lay charges absent reasonable cause to suspect the practitioner was guilty of the requisite conduct.80 152 The reference to checks and filters is to be understood in context. Justice White contrasted the position of the Board, the Attorney-General and the Society with the submission that a self-serving statement a person was aggrieved was sufficient for a complainant to lay a charge without the need to establish reasonable cause to suspect the practitioner had been guilty of requisite conduct.81 Justice White’s decision was predicated on the then Board’s power to charge being 74 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. 75 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. 76 [2013] SASC 99. 77 [2013] SASC 99 at [50] (White J). 78 [2013] SASC 99. 79 [2013] SASC 99 at [105] (White J). 80 Viscariello v Livesey [2013] SASC 99 at [53] (White J). 81 Viscariello v Livesey [2013] SASC 99 at [54] (White J). -- 35 of 49 -- [2024] SASCA 102 Stein AJA 32 found in s 82. His Honour’s decision is not inconsistent with the conclusion that the subsequently enacted provisions in subdivision 3 do not provide the exclusive pathway to the Commissioner laying a charge. I discuss the decision in Viscariello v Livesey82 further below. 153 The Attorney-General’s and the Society’s submissions in effect treated subdivision 3 as an implied procedural gateway through which the Commissioner must pass in order to lay a charge or as an exhaustive scheme setting out the potential pathways to the Commissioner laying a charge. I do not agree that is the purpose or proper construction of subdivision 3. 154 The provisions of subdivision 3 do not give rise to a necessary implication that the Commissioner is constrained in the exercise of the power to lay charges only in the circumstances mandated by s 77L. The purpose of s 77L is not to limit the exercise of the power to lay a charge under s 82. Rather, as it provides, it is to mandate the laying of charges if the Commissioner is satisfied the conduct cannot adequately be dealt with under s 77J. There is an exception if the Commissioner determines it would not be in the public interest to lay charges. 155 The Attorney-General’s analysis, based on Project Blue Sky, contrasted the express rules in s 82 governing laying a charge with the absence of an express pre-condition in the form of compliance with s 77L. Those matters were put in support of the conclusion that a failure to comply with s 77L would not result in invalidity. However, they also support a conclusion that s 77L only mandates the laying of charges in particular circumstances, rather than providing the exclusive pathway through which charges are to be laid. 156 The power of the Committee and then the Board to lay charges under the previous versions of the Act was not circumscribed. The Board was given a limited alternative avenue by which to deal with certain minor misconduct. There is nothing in the text of s 77L or Part 6 which suggests that in enacting the amendments to Part 6 which broadened the Commissioner’s powers, Parliament intended to alter the scheme from one which fundamentally contained broad powers to lay charges, with a limited alternative pathway to address minor misconduct, to one granting the Commissioner specific powers to address conduct with a residual and more limited ability to lay charges. Part 6 retains in the Commissioner the power to lay charges together with the power to address some conduct via alternative avenues, albeit expanding both the nature of the conduct which can be addressed and the potential sanctions. 157 The expansion of the Commissioner’s powers to institute proceedings in the Supreme Court pursuant to ss 88A and 89 further supports the conclusion that the specific powers in s 77J and the obligation to lay charges in s 77L were not intended to circumscribe the Commissioner’s power or exhaust the pathways to laying a charge. If laying a charge was conditioned on the Commissioner’s 82 [2013] SASC 99. -- 36 of 49 -- [2024] SASCA 102 Stein AJA 33 satisfaction of the matters referred to in s 77L, it would paradoxically allow the Commissioner to commence Supreme Court proceedings alleging professional misconduct of sufficient gravity to warrant striking off the practitioner absent satisfaction of those matters while confining the Commissioner’s power to lay charges in the Tribunal in relation to less significant conduct. It is not apparent why the Parliament would limit the Commissioner’s ability to lay a charge in the specialist Tribunal established to address the conduct of legal practitioners yet accord the Commissioner an unqualified pathway to commence Supreme Court proceedings. 158 The ability of the Attorney-General and the Society (and persons aggrieved) to lay charges is not qualified or conferred upon the satisfaction of any pre-conditions. While the submission was made that the Attorney-General may lay a charge if circumstances arose in which the Commissioner could not, it would be surprising if the primary regulator’s pathway to laying charges was circumscribed when others with standing are not so fettered. 159 The Act contemplates the Commissioner addressing complaints via conciliation pursuant to subdivision 5 as an alternative to subdivision 3. Section 77O(7) expressly contemplates investigation, further investigation or laying of a charge after conciliation without conditioning such action on the requirements of ss 77L or 77K. This provides additional support for the conclusion that s 77L does not pre-condition the laying of a charge. 160 The Practitioner’s submissions founded on a contrast between specific and general powers rely on the erroneous characterisation of s 77L as conferring specific powers rather than imposing an obligation. Accordingly, they do not require further consideration. 161 It does not follow from the analysis above that the Commissioner is afforded unfettered powers or is unconstrained in the exercise of functions and powers. The Commissioner is obliged to investigate in the circumstances provided for by subdivision 2. The Commissioner’s ability to engage in the regulatory function of taking action after investigation and exercising powers under subdivision 3 requires satisfaction of the matters referred to in s 77J. Specified determinations of the Commissioner are susceptible to appeal under the Act. Remedies may also be available through judicial review. Meaning of “evidence” in s 77J and s 77L? 162 The Practitioner criticised the reference in the charge to “taking the complainant’s evidence at its highest”. The Practitioner contended that the evidence to which reference is made in s 77L is credible and admissible evidence in the context of the investigation as a whole, which must be weighed with all the other credible and admissible evidence, including evidence tending to suggest a lack of credibility of supporting evidence. The Practitioner relied upon what was characterised as a patent defect on the face of the charge, contending that recitals C(i) and C(ii) of the charge misconceive the test under s 77L. -- 37 of 49 -- [2024] SASCA 102 Stein AJA 34 163 The Attorney-General submitted that the notion of evidence is contextually broad, is not a filter and that satisfaction of evidence is not the same as satisfaction of conduct. The Society submitted that evidence means simply evidence and does not require the Commissioner to make a finding the relevant conduct occurred. 164 The Practitioner’s position derives potential support from the identical references to “evidence” in s 77J and s 77L. Section 77J enables the Commissioner to impose sanctions in some circumstances without the consent of a practitioner. The Practitioner submitted that the adoption of the same test as a pre-condition to the Commissioner taking adverse action against a practitioner demands a statutory construction consistent with a state of satisfaction about the probative balance of the evidence weighed as a result of the investigation. On the Practitioner’s case, the reference to “evidence” must rise to the Commissioner being satisfied on weighing all of the evidence that the Practitioner likely committed the prescribed conduct at a Briginshaw83 level of satisfaction. The Practitioner further relied upon the reference to “prima facie case” in the observations of Hughes J in Viscariello v The Legal Practitioners Conduct Tribunal.84 165 The Practitioner contended that if the threshold test for satisfaction there is “evidence” is low, the Commissioner could impose sanctions without consent even if the requisite conduct was not made out. However, if the threshold test is high and equivalent to Briginshaw satisfaction of requisite conduct, it would equate “evidence” with “findings” of requisite conduct. It would in effect create equal thresholds for the Commissioner’s role of laying charges and the obligation of the Tribunal to inquire into the conduct and, if so persuaded, make findings of guilt. It would reduce the role of the Tribunal by limiting cases attracting the mandatory obligation to lay a charge under s 77L and correspondingly reduce the Commissioner’s obligation to notify the Attorney-General under s 77H. It would have such effect despite the Commissioner’s evidence gathering powers being more limited than those of the Tribunal. Further, if the Practitioner’s submission concerning the weight of evidence required were to be accepted, it would impact the Commissioner’s ability to lay charges in some cases such as those involving serious allegations of inappropriate personal conduct between individuals which rely solely on differing accounts as between a practitioner and complainant. 166 The answer to the conundrum of what is meant by “evidence” lies in the text of sections 77J and 77L, in the context of Part 6 as a whole, to which I now turn. 167 Commencing with consideration of text, there are a number of references to a state of satisfaction that there “is evidence” of requisite conduct in Part 6. Such a reference appears in s 77H (the obligation to report); s 77J (powers to deal with certain conduct); and s 77L (the obligation to lay charges in certain circumstances). The phrase “satisfied there is evidence” in s 77J replicates the phrase in s 77AB 83 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. 84 [2021] SASCFC 18 at [104] (Hughes J). -- 38 of 49 -- [2024] SASCA 102 Stein AJA 35 which granted the Board its narrow power to deal with minor misconduct with consent. 168 The Act does not define “evidence”. The provisions which refer to the Commissioner’s satisfaction there is evidence do not qualify “evidence” by any express standard or requirement. 169 Other Parts of the Act contain references to “rules of evidence”;85 “evidence”,86 “evidence to the satisfaction” of the Court;87 “prima facie evidence”;88 “evidence of” certain matters being admissible89 and matters which are “not admissible in evidence” against a person in certain proceedings.90 170 Given the contrast with such other references, I do not consider the word “evidence” in s 77H, s 77J and s 77L to be a technical reference to admissible evidence or evidence which complies with the rules of evidence. 171 The conclusion that “evidence” does not bear a technical meaning also acknowledges the nature of the potential materials available to the Commissioner and the Commissioner’s lack of power to require testimony on oath or conduct hearings at which evidence can be admitted or tested. It is consistent with the Commissioner’s role as a regulator,91 with the conferral of functions and powers relating to the regulation of legal practice, in contrast with those which are judicial or quasi-judicial in character. It also recognises that information obtained by the Commissioner in the course of an investigation may not be in admissible form. In Walsh v Loughnan,92 (in a different context) Vincent J observed: In the process of investigation it is by no means uncommon for information to be obtained which would not be admissible in a court of law, or for well-founded suspicions and belief to be developed on the basis of a variety of pieces and types of information, including evidence of consistency or inconsistency of conduct, which could not be advanced as proof of the facts outlined or suspected to exist. 172 The lack of any qualifying descriptor attaching to “evidence” in each of ss 77H, 77J and 77K or an express reference to evidence meeting a requisite standard of satisfaction supports the view that “evidence” simply means “evidence” without any additional, implied qualification. This conclusion is also consistent with the references in Part 6 to “evidence of” specified conduct93 or to “no evidence” of specified conduct.94 The binary alternatives allow for an absence of evidence or for a presence of evidence which may vary including in its nature, 85 Legal Practitioners Act 1981 (SA), s 6(1)(c). 86 See, for example, Legal Practitioners Act 1981 (SA), ss 19, 21(4a), 23AA, 23D, 53, 63 and 95C. 87 Legal Practitioners Act 1981 (SA), s 19. 88 Legal Practitioners Act 1981 (SA), s 21(4a). 89 Legal Practitioners Act 1981 (SA), s 63. 90 Legal Practitioners Act 1981 (SA), s 95C; sch 4, pt 2. 91 Legal Practitioners Act 1981 (SA), s 5. 92 [1991] 2 VR 351 at 357 (Vincent J), quoted by Perry J in Iskra v Police (2003) 84 SASR 586; Cited with approval by Bleby J (Doyle CJ and Gray J agreeing) in R v Rowe [2004] SASC 427. 93 Legal Practitioners Act 1981 (SA), ss 77H, 77J, 77L. 94 Legal Practitioners Act 1981 (SA), s 77M. -- 39 of 49 -- [2024] SASCA 102 Stein AJA 36 quality, cogency, reliability and weight. If Parliament had intended to predicate the ability to lay charges on satisfaction of a particular standard, weight or characteristic of evidence, that standard could have been articulated expressly. Further, s 77J and s 77L replicate the language used in s 77AB which gave the Board limited powers to sanction with consent. 173 However, such a conclusion does not amount to acceptance that the Commissioner could sanction without the consent of a practitioner in the face of just any evidence. The concerns underpinning the Practitioner’s submissions regarding the incongruity of the Commissioner’s powers to sanction on the existence of evidence per se are allayed upon a close consideration of the text of s 77J and an understanding of the whole of Part 6. 174 First, the Commissioner cannot proceed to sanction under s 77J merely on the satisfaction there is evidence of the requisite conduct. While satisfaction of “evidence” is necessary, s 77J requires more. The Commissioner must be satisfied the conduct can adequately be dealt with under the provisions of s 77J. Section 77J does not define the considerations which the Commissioner may take into account in reaching such satisfaction. Without being exhaustive, matters relating to the nature, quality, cogency, reliability, sufficiency and weight of the evidence of the alleged conduct (which for ease of reference I will refer to as “quality of the evidence”), together with the degree of seriousness of the alleged conduct, the available sanctions, the willingness or otherwise of the practitioner to consent to sanctions and any matter raised in the practitioner’s submissions, are likely to fall for consideration in assessing satisfaction whether the conduct can adequately be dealt with under the section. 175 The evaluation of satisfaction that the conduct can adequately be dealt with under s 77J will be particularly critical in determining whether the Commissioner imposes a penalty without consent. The concept of not being able to deal adequately with a matter under 77J encompasses situations in which the quality of the evidence will warrant that the Commissioner not exercise the power. In such a case, the satisfaction of evidence, combined with satisfaction the conduct cannot adequately be dealt with under s 77J, will trigger the mandatory obligation to charge under s 77L. However, this will be subject to the Commissioner’s determination of public interest considerations, into which the Commissioner will factor the quality of the evidence and associated prospects of success in proceedings in the Tribunal. 176 Second, s 77J(4) provides an additional safeguard. This subsection imposes an obligation on the Commissioner to provide the practitioner with details of the proposal and invite and consider written submissions from the practitioner if the Commissioner proposes to exercise a power which does not require consent. That obligation arises after the Commissioner reaches satisfaction there is evidence and -- 40 of 49 -- [2024] SASCA 102 Stein AJA 37 proposes to exercise a power. It is in addition to the Commissioner’s obligations to seek and consider submissions at the time of investigation.95 177 This process is a pre-requisite to a decision to sanction without consent. It enables the practitioner to raise matters concerning the quality of the evidence supporting the requisite misconduct and the appropriateness of the Commissioner proceeding to exercise powers in light of the quality of the evidence. 178 Third, a practitioner has a right of appeal to the Tribunal against a determination of the Commissioner imposing a sanction without consent.96 An appeal is by way of rehearing. The Tribunal is required to examine the evidence and material before the Commissioner together with any further evidence or material the Tribunal may admit for the purposes of the rehearing. Section 77K expressly provides for examination of the quality of the evidence of the requisite conduct on the rehearing. 179 Fourth, the Commissioner’s power to impose sanctions without the consent of the practitioner arises only for unsatisfactory professional conduct, not professional misconduct,97 and in circumstances in which the practitioner does not consent to “a course of action”. I reject the Practitioner’s submission that consent to a course of action does not extend to the imposition of the sanction. An order made by the Commissioner under s 77J with consent must be signed by the practitioner.98 Further, the Tribunal is empowered to make adverse costs orders where the practitioner has not consented to the exercise of a power by the Commissioner.99 Moreover, if consent did not extend to consent to the sanction, it would leave a gap in a practitioner’s rights of appeal. These rights are limited to cases in which the Commissioner proceeds under ss 77J(1)(a) and 77J(3)(a)(i) (that is, absent consent). 180 Fifth, the Commissioner’s powers to sanction are not expressed as being based on findings of guilt. They are not punitive. They are focussed on public protection. They address the impact of the conduct (through apology, ordering that work be redone, providing for fees to be waived or reduced or for payment of costs of redoing work). They are also directed at reducing the risk of the practitioner engaging in similar future conduct (through ordering training, education or counselling, payment of a fine not exceeding $5,000 and the imposition of conditions on the practitioner’s practising certificate). The potential sanctions are less serious when imposed without consent and of less significance than the range of penalties which may be imposed by the Tribunal. 95 Legal Practitioners Act 1981 (SA), s 77D, subject to s 77F. 96 Legal Practitioners Act 1981 (SA), s 77K(1). Pursuant to s 77K(2) rights of appeal for a complainant are limited to cases in which the Commissioner proceeds with consent of the legal practitioner. 97 Legal Practitioners Act 1981 (SA), ss 77J(1)(a), 77J(3)(a)(i). 98 Legal Practitioners Act 1981 (SA), s 77J(6). 99 Legal Practitioners Act 1981 (SA), s 85(1a). -- 41 of 49 -- [2024] SASCA 102 Stein AJA 38 181 While these conclusions are sufficient to dispose of the ground of appeal, for completeness I address the Practitioner’s submission concerning the face of the charge. 182 The Practitioner contended that the Commissioner must have sufficient evidence of the requisite conduct, in that an inability to decide between competing evidence will not suffice and the Commissioner cannot simply take the complainant’s evidence at its highest. The Practitioner submitted that the Commissioner had before him evidence which in substantial respects contradicted the complainant’s evidence. Either that evidence was not sufficiently taken into account or, if it was, it led to the person responsible for the laying of the charge to reach the view, expressed in the recital to the charge, that the person laying the charge was not satisfied of evidence of misconduct. On the Practitioner’s case, recital C of the charge amounted to a statement of the existence of conflicting evidence that the Commissioner could not resolve. 183 I do not accept this characterisation of the charge. The statements in the recitals do not amount to asserting that the person laying the charge was not satisfied of evidence of misconduct. The recital refers to conflicting evidence which the Commissioner could not resolve absent testing that evidence. It indicates the Commissioner’s view that the complainant’s evidence, if taken at its highest and accepted, amounted to professional misconduct. 184 In Viscariello v Livesey,100 White J identified that s 76(1) of the previous Act required that the Board have “reasonable cause to suspect” that a practitioner had been guilty of unprofessional or unsatisfactory conduct before making an investigation of its own motion. This effectively operated as a filter on the Board laying charges before the Tribunal. Section 76(1a) imposed a similar filter on the Attorney-General or the Society directing the Board to make an investigation. Effectively, the Board could not take the subsequent step of laying charges absent a reasonable cause to suspect the practitioner’s guilt. White J considered that while that filter was not expressly imposed on the Attorney-General or Society in laying charges under s 82(2), it was to be expected that they too would not lay charges absent reasonable cause to suspect.101 185 The relevant parts of s 76 of the previous Act are effectively replicated in s 77B of the Act. Having at least a reasonable cause to suspect is consistent with the threshold for investigation to which I have referred above. Reasonable cause to suspect requires the existence of facts sufficient to induce in the mind of a reasonable person a suspicion (of the relevant conduct).102 Suspicion is more than 100 Viscariello v Livesey [2013] SASC 99. 101 Viscariello v Livesey [2013] SASC 99 at [50]-[55] (White J). 102 George v Rockett [1990] HCA 26; (1990) 170 CLR 104; Iskra v Police [2003] SASC 50; (2003) 84 SASR 586. -- 42 of 49 -- [2024] SASCA 102 Stein AJA 39 idle wondering and constitutes a state of surmise or conjecture where there is a lack of evidence sufficient to amount to proof.103 186 In Viscariello v The Legal Practitioners Disciplinary Tribunal,104 in considering the meaning of “charge”, Hughes J said:105 To assign this meaning to the word “charge” is consistent with the Board’s function of determining, on the basis of the investigations of its officers, that a prima facie case, based on the materials located and created in the investigation, exists to allege a particular species of misconduct for the Tribunal’s inquiry. 187 In respect of the phrase prima facie, in Zanetti v Hill,106 Kitto J said: [T]hat is to say, there is with respect to every element of the offence some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred. That is a question to be carefully distinguished from the question of fact for ultimate decision, namely whether every element of the offence is established to the satisfaction of the tribunal of fact beyond a reasonable doubt. (Emphasis added) 188 The decision in Viscariello v The Legal Practitioners Disciplinary Tribunal107 addressed the preferable construction of “charge” in the Act. In the context of reaching a conclusion on what is meant by a “charge”, Hughes J referred to the function of the then Board as determining that a prima facie case exists to allege a particular species of misconduct for inquiry by the Tribunal based on materials located and created in an investigation.108 Her Honour’s observations do not amount to a conclusion that the Act as then in force created a statutory threshold standard of satisfaction for laying a charge as contended for by the Practitioner. 189 The Act does not pre-condition the laying of charges on any required level of suspicion, satisfaction or quality of evidence. The mandatory obligation to lay charges arises on satisfaction of the matters referred to within s 77L. The Commissioner will consider whether or not there is sufficient evidence to make out a prima facie case in assessing whether it would not be in the public interest to lay charges in those cases which would otherwise attract the mandatory obligation. 190 In any event, in the case of the Practitioner, the recitals to the charge articulated a prima facie case which constituted sufficient basis to lay a charge. Project Blue Sky 191 It follows that it does not arise for consideration whether an act done in breach of conditions, said to regulate the exercise of the asserted statutory power 103 George v Rockett [1990] HCA 26; (1990) 170 CLR 104. 104 [2021] SASCFC 18. 105 [2021] SASCFC 18 at [126] (Hughes J). 106 [1962] HCA 62; (1962) 108 CLR 433 at 442. 107 [2021] SASCFC 18. 108 [2021] SASCFC 18 at [126] (Hughes J). -- 43 of 49 -- [2024] SASCA 102 Stein AJA 40 in s 77L, results in invalidity. The matters set out above that support the conclusion that the charge was not invalidly laid also support the conclusion that s 77L does not pre-condition the exercise of the power to lay a charge. 192 If I had accepted the Attorney-General’s submissions concerning s 77L, I would also have accepted the submission that a failure to comply with the asserted pre-conditions in s 77L would not result in invalidity. The rule-like quality of the matters addressed in s 82, in contrast with the evaluative nature of the matters of which the Commissioner must be satisfied in s 77L, justifies the conclusion that any error in process (if any were shown) would not have invalidated the laying of the charge. Could Commissioner Keane lay charges? 193 Once it is understood that s 82 empowers the Commissioner to lay charges and s 77L imports an obligation upon the Commissioner to do so in the circumstances set out within it, the issues raised concerning the change in identity of the individual occupying the role of Commissioner fall away. 194 Commissioner May conducted an investigation. Commissioner May was satisfied there was evidence of the alleged misconduct and that conduct could not adequately be dealt with under s 77J. Commissioner May did not determine that it would not be in the public interest to lay a charge.109 Commissioner May informed the Practitioner that the laying of the charge would need to be done by the new Commissioner. I observe in passing that there would not appear to have been any impediment to Commissioner May, prior to his departure, authorising in writing the signing of a charge against the Practitioner by a solicitor acting on his behalf.110 195 Following his appointment, Commissioner Keane was made aware of the complaint, investigation and decision of Commissioner May. He determined not to set aside that decision and proceeded with laying a charge.111 Commissioner Keane had the power to do so. It was not necessary to imbue Commissioner May’s state of mind in Commissioner Keane to empower Commissioner Keane to lay the charges. 196 The Practitioner contends that Commissioner Keane could not achieve the requisite state of satisfaction by simply adopting Commissioner May’s state of mind, referring to Barwick v Law Society of New South Wales (“Barwick”).112 For the reasons I discuss below, Barwick does not assist the Practitioner. 197 Further, the language used in the correspondence before the Tribunal does not justify the Tribunal’s conclusion that Commissioner Keane merely adopted 109 Exhibit P2. 110 The Rules, r 4. See also discussion in Viscariello v Legal Practitioners Conduct Tribunal at [129]-[153] (Hughes J) in relation to the requirements for signature on a charge. 111 Exhibit C2. 112 [2000] HCA 2; (2000) 169 ALR 236. -- 44 of 49 -- [2024] SASCA 102 Stein AJA 41 Commissioner May’s determination or that Commissioner Keane did not consider and evaluate the evidence to reach some posited requisite degree of satisfaction before laying the charge. The correspondence did not expressly address Commissioner Keane’s evaluation of the evidence. 198 For completeness, I do not accept the Practitioner’s submission that the office of Commissioner is not a statutory office. The office of Commissioner is established by the Act. The Commissioner is an agency of the Crown. While the office is not a body corporate and a natural person is appointed to the role, the person acts in his or her capacity as Commissioner and exercises the functions and powers granted to the statutory office holder.113 The ability of the Minister to appoint a person to act in the Commissioner’s absence; the Commissioner’s powers to delegate; the references to the Commissioner acting in his or her capacity as Commissioner;114 and the transfer of the assets, rights and liabilities of the Board to the Commissioner115 are further contextual indications of statutory office. Tribunal’s authority to consider the limits of its jurisdiction 199 The Commissioner challenged the Tribunal’s conclusion that the power to dismiss a charge under s 82(5) of the Act as frivolous and vexatious extends to a power of dismissal on the basis the Commissioner fell into jurisdictional error in laying the charge. The Commissioner submitted the Tribunal is not empowered to review the Commissioner’s decision-making in the execution of his powers or decision-making processes absent rights of appeal pursuant to s 77K. 200 The Attorney-General submitted that the Tribunal was correct to find it was competent to consider the legal limits of its own authority and thus whether it had jurisdiction to hear the charge. 201 The Practitioner’s submissions framed the issue as whether the Tribunal had power to dismiss the charge as an abuse of process or frivolous and vexatious, on the basis that neither Commissioner May nor Commissioner Keane had reached the required state of satisfaction. The Practitioner submitted that the correct question in relation to the challenge to the Tribunal’s jurisdiction to conduct a review of the correctness of the Commissioner’s use of his power and processes was whether the Tribunal has implied power to dismiss a charge that is an abuse of process. The Practitioner submitted the Tribunal was not asked to, and did not undertake, a judicial review of the Commissioner’s decision. Jurisdiction to determine jurisdiction 202 A Tribunal that is not a court has the authority in the exercise of the non-judicial power with which it is invested to decide, in the sense of forming an opinion, about the limits of its jurisdiction for the purpose of determining its 113 See Legal Practitioners Act 1981 (SA), ss 5, 7(1), 7(2), 71(3), 67B(b), 74, 76, 77. 114 Legal Practitioners Act 1981 (SA), s 67B. 115 Legal Practitioners (Miscellaneous) Amendment Act 2013, sch 2, s 16. -- 45 of 49 -- [2024] SASCA 102 Stein AJA 42 action.116 The authority is to form an opinion for the purposes of moulding the Tribunal’s conduct in order to accord with the law.117 What did the Tribunal do? 203 After engaging in a process of statutory construction of the Act and concluding that the relevant power to lay charges is found in s 77L, the Tribunal found Commissioner Keane did not undertake any independent evaluation of the evidence nor look behind what Commissioner May had referred to in his reasons for his decision to lay a charge. It found that neither Commissioner Keane nor Commissioner May followed the statutory regime. It referred to Commissioner May’s letter dated 2 August 2022 and pointed to an asserted lack of reference to any other evidence supporting the complainant or to evidence of any other matter being brought to account. The Tribunal referred to the process of Commissioner May reaching his determination as being “adopted by” Commissioner Keane. The Tribunal asserted the procedure was flawed and no proper evaluation of evidence took place. 204 While contending the correct question to be answered was whether the Tribunal has implied power to dismiss a charge that is an abuse of process, the Practitioner submitted it must be the case that the Tribunal had power to dismiss the charge if it was correct in finding that neither Commissioner reached the requisite state of satisfaction (said to be required by s 77L) before laying the charge. When framed in that manner, the nature of the Tribunal’s decision is apparent. The decision concerned the Commissioner’s state of satisfaction prior to laying the charge and constituted an inquiry into that state of satisfaction. The Tribunal engaged in an evaluation of the Commissioner’s decision-making process, including the Tribunal’s view of the Commissioner’s evaluation of evidence (or lack thereof). 205 The Tribunal’s power to inquire into a determination of the Commissioner is the subject of s 77K. Section 77K does not include the Commissioner’s determination to lay a charge. The powers of the Tribunal in s 82 to inquire are limited to an inquiry into the conduct of the practitioner in relation to whom a charge is laid.118 There is no power conferred on the Tribunal to examine the Commissioner’s decision to lay the charges. The Tribunal’s determination extended beyond forming an opinion as to the limits of its own jurisdiction to an evaluation of the Commissioner’s decision-making process. Reliance by the Practitioner on the face of the recitals in the charge cannot overcome this difficulty. Moreover, that evaluation was premised on a misconstruction of the Commissioner’s powers in any event. 116 Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2002) 276 CLR 216 at [24] (Kiefel CJ, Gageler, Keane, Gaudron and Gleeson JJ). 117 Re Adams and Tax Agents Board [1976] AATA 1; (1976) 12 ALR 239 at 245 (Brennan J). 118 Legal Practitioners Act 1981 (SA), s 82(4). -- 46 of 49 -- [2024] SASCA 102 Stein AJA 43 206 Bearing in mind my conclusion that the power to lay charges is conferred exclusively by s 82, the Tribunal fell into error in dismissing the charge on the basis that it had no jurisdiction to address the charge. 207 The decision in Barwick119 does not assist the Practitioner on the question of jurisdiction or in relation to the asserted “adoption” of Commissioner May’s state of satisfaction by Commissioner Keane. In Barwick, a routine trust account inspection raised concerns about irregular transactions. The Law Society made various requests for information. Correspondence between the Law Society and Mr Barwick ensued over an extended period. After legislative changes which substantially amended the statutory scheme, a Professional Conduct Committee of the Law Society resolved that Mr Barwick be informed of questions of professional conduct involved in the complaint (although at that time no complaint had been made against him). The Committee also resolved that, subject to submissions, it considered there was a reasonable likelihood Mr Barwick would be found guilty of professional misconduct. After further correspondence, the Committee met and again resolved it was satisfied there was a reasonable likelihood Mr Barwick would be found guilty of professional misconduct and proceedings should be instituted in the Tribunal. 208 After a request from Mr Barwick for an opportunity to make further submissions and for reconsideration of the decision, the Committee met and passed two successive resolutions. The first was that a complaint be initiated against Mr Barwick in relation to professional misconduct involving misapplying assets, improperly investing estate monies and misleading the Law Society. Immediately thereafter the Committee further resolved it was satisfied there was a reasonable likelihood that Mr Barwick would be found guilty by the Tribunal of professional misconduct and resolved to institute proceedings in the Tribunal. 209 The High Court considered it would be inconsistent with the purpose of the legislation to conclude that the Tribunal had jurisdiction to address a matter brought before it when the procedures set out in the legislation had been substantially bypassed.120 A significant factor in that conclusion was the analysis of the relevant provisions of the New South Wales legislation which dealt with investigations of complaints and the jurisdiction of that Tribunal. Section 155 of the legislation in question provided that after the completion of an investigation into a complaint against a practitioner, the complaint was to be dealt with “in accordance with this section”. Section 167 of the legislation conferred jurisdiction on the Tribunal to address proceedings instituted with respect to a complaint against a practitioner by an information laid in accordance with the relevant sections of the Act. 119 [2000] HCA 2; (2000) 169 ALR 236. 120 Barwick v Law Society of New South Wales [2000] HCA 2; (2000) 169 ALR 236 at [45] (Gleeson CJ, Gaudron and McHugh JJ) and [114-115] (Kirby J). -- 47 of 49 -- [2024] SASCA 102 Stein AJA 44 210 The plurality (Gleeson CJ, Gaudron and McHugh JJ) observed that not every departure from the procedures in the relevant division of the Act would result in a lack of jurisdiction under s 167. However, one of the legislative purposes was that before a matter went to the Tribunal, it would have been the subject of a complaint which was the subject of an investigation monitored by the Commissioner and considered and dealt with under s 155.121 Despite a lengthy history of correspondence and receipt of information, there was a resolution that a complaint be initiated, followed immediately by a resolution to lay an information only on two separate occasions in relation to the first and second complaint against Mr Barwick.122 This was such a departure from the requirements of the Act as to deprive the Tribunal of jurisdiction.123 211 Justice Callinan considered an important purpose of s 155 was to ensure the relevant entity turned its mind to the reasonable likelihood of a finding of guilt by the Tribunal and reached a state of satisfaction of mind.124 His Honour concluded that an investigation must be made of a complaint. If satisfied the investigation was adequate, the relevant entity could adopt it as the investigation contemplated by the legislation and then consider the requirement of s 155 to determinate what steps should be taken. His Honour then said that the adoption of an earlier investigation should not be treated as a mere formality. Sections 155 and 156 of the legislation denied that. Real consideration had to be given to what was done and whether further investigation was required.125 212 The conclusions reached in Barwick are not aptly applied in the differing context of the framework of Division 2, subdivisions 2 and 3 Division 4 of Part 6 and the text of s 82. 213 The Tribunal’s dismissal of the charge was premised on its erroneous conclusion as to its lack of jurisdiction. The dismissal of the charge must be set aside. It is not necessary for this Court to consider further the submissions based on asserted abuse of process. 214 It is also unnecessary for the Court to address the appeal ground concerning asserted failure to provide adequate reasons. Orders 215 I make the following orders: 1. The appeal is allowed. 121 Barwick v Law Society of New South Wales [2000] HCA 2; (2000) 169 ALR 236 at [53] (Gleeson CJ, Gaudron and McHugh JJ). 122 Barwick v Law Society of New South Wales [2000] HCA 2; (2000) 169 ALR 236 at [54] (Gleeson CJ, Gaudron and McHugh JJ). 123 Barwick v Law Society of New South Wales [2000] HCA 2; (2000) 169 ALR 236 at [63] (Gleeson CJ, Gaudron and McHugh JJ). 124 Barwick v Law Society of New South Wales [2000] HCA 2; (2000) 169 ALR 236 at [177] (Callinan J). 125 [2000] HCA 2; (2000) 169 ALR 236 at [179] (Callinan J). -- 48 of 49 -- [2024] SASCA 102 Stein AJA 45 2. The decision of the Tribunal to dismiss the charge is set aside. 3. The matter is remitted to the Tribunal for inquiry into the charge laid by the Commissioner against the Practitioner. -- 49 of 49 --