UPDATE … No jurisdiction … Lawyer disciplinary actions thrown out by NCAT … Complaints improperly made … Procedural mishaps involving the Legal Services Commissioner, the Law Society and the Bar Association … Mounting costs awarded … Lawyers continue to trade without birchings … Remedial patch-up underway … Alan Zheng reports 

In at least half a dozen cases, the Civil and Administrative Tribunal has dismissed the Law Society’s applications for disciplinary findings and orders. Those solicitors, who otherwise had complaints of professional misconduct made and dropped against them, will continue to ply the trade. 

Cracks have been exposed in the processes linking the Law Society and Legal Services Commissioner, with the Law Society’s coffers ceding costs in four of the cases.

Bar Prez, T. Game, tells us that his organisation also has been hit with problematic interaction with the LSC: 

“Certain disciplinary matters have been affacted by the drafting of relevant delegations under the Legal Profession Uniform Law. The association has had discussions with the Department of Justice & Communities and we understand that legislation to rectify the issue will be introduced by the attorney general during the current session of parliament.” 

Each of the Law Society’s cases has witnessed a Sisyphean attempt by the commissioner to delegate the power to initiate misconduct proceedings to the society under the Uniform Law. 

In the case which brought it all to light, Council of the Law Society of NSW v DXW, a lawyer at the commercial and family law outfit Swaab Attorneys outpaced the Law Society’s misconduct machinery. 

The tribunal ruled it had no jurisdiction because no complaint was made to or by the Legal Services Commissioner pursuant to section 267 of the Uniform Law. As a disciplinary matter could not be founded without a complaint, there was no basis for the Law Society’s subsequent initiation of the misconduct proceedings.

The Law Society relied upon a 2015 Instrument of Delegation to argue that it had been properly delegated the power to initiate disciplinary proceedings. 

But the instrument’s terms disagreed. A complaint needed to have been made to or by the commissioner and the commissioner must have decided whether to deal with it. Only then, could the Law Society initiate disciplinary proceedings.

A maladroit Law Society, tempted to play both judge and executioner, failed to meet the terms of its own instrument, while the tribunal found no evidence that the complaint originated from the commissioner or a third party. 

Furthermore, the Law Society had come into possession of the complaint as early as 2016 but got ahead of itself. In correspondence it informed the commissioner that it was already proceeding to investigate DXW. In its only relevant response, the LSC allocated the complaint a reference number and confirmed the complaints had been opened. 

This reply, the tribunal said, could not be construed to mean anything more than an acknowledgement of the Law Society’s notification. In its ordinary meaning, the fact that the complaints were “opened” did not establish whether the commissioner had decided to deal with the complaint. 

In a final fling, the Law Society invoked the presumption of regularity. It argued that it had validly exercised the delegated authority because the LSC never expressed a contrary intention. 

It was too little and far too late for the Law Society. The presumption was rebutted because of irregularities in the delegation process. 

In a silver lining for the Law Society, DXW did not seek a costs order – but it was a blessing that proved brief. 

Parties are required to bear their own costs at NCAT unless there are special circumstances, according to section 60 of the NCAT Act. 

After DXW was handed down, the Law Society moved to end several other ongoing proceedings compromised by similar defects. 

In Judah, the tribunal upheld DXW and dismissed the Law Society’s proceedings – yet this was not enough for Albert Judah. He went on the offensive, arguing that the Law Society’s proceedings were so misconceived and lacking in substance that they constituted special circumstances which justified a departure from the ordinary statutory rule as to costs. 

The Law Society haplessly argued that the tribunal could still exercise its discretion not to order costs. No go – the Law Society has to cough-up.

From there, the defects first uncovered in DXW became a winning formula for those in the midst of misconduct allegations. Now, they could not only have those proceedings dropped but also pick up some costs along the way.

The battleground has shifted and now the society was scrambling to control the damage –  resisting costs became its primary goal. 

In two other cases, EBA and DRE, the Law Society asked the tribunal to dismiss its applications for want of jurisdiction. In both, this went unopposed. 

But the respondents were hungry for costs, and quick to point to the strengths of the respective cases and contend that the Law Society’s application had no tenable basis in fact and law, as in Judah. 

The tribunal agreed that the procedural defects had rendered the proceedings a nullity. Costs were awarded against the Law Society in EBA and DRE’s favour.

In its proceedings against Brian Thornton of Cragge, Braye & Thornton, the Law Society conceded to Thornton’s application to dismiss the proceedings for want of jurisdiction. The tribunal, unable to distinguish the facts in Judah, ordered costs against the Law Society again. 

The tribunal’s decision in DXW is yet to undergo any appellate scrutiny. The Legal Services Commissioner, John McKenzie, told us that he is working with the co-regulators, “to ensure that the issues identified in the delegation of investigations to our partners is overcome. 

“We believe that the measures to be undertaken, which include the remedial legislation, will safeguard the effective operation of the regulatory system of the profession in NSW.”