Part 10 Complaints and discipline
The general objects of this Part are:(a) to redress the consumer complaints of users of legal services, and(b) to ensure compliance by individual legal practitioners with the necessary standards of honesty, competence and diligence, and(c) to maintain at a sufficiently high level the ethical and practice standards of the legal profession as a whole.
124 Objects of Part relating to users of legal services
The objects of this Part relating to the users of legal services are:(a) to give every person the right to complain about the conduct of legal practitioners, and(b) to give users of legal services access to sufficient advice and assistance in order to make and pursue complaints in accordance with this Part and to understand their rights and responsibilities under this Part, and(c) to provide an opportunity for mediation of consumer disputes relating to legal services, and(d) to give complainants immunity from civil liability for communications made by them in connection with the official complaints and disciplinary system, and(e) to provide complainants with a reasonable opportunity to rebut statements of the legal practitioner against whom the complaint is made before the complaint is disposed of, and(f) to ensure that complainants receive adequate notice of the institution and status of disciplinary proceedings at relevant stages of the proceedings (including notice of the dismissal of complaints and the reasons for the dismissal), and(g) to give complainants the right to seek an independent review of decisions of Councils to dismiss complaints or merely reprimand legal practitioners.
125 Objects of Part relating to providers of legal services
The objects of this Part relating to the providers of legal services are:(a) to ensure that the rules of natural justice (being rules for procedural fairness) are applied to any disciplinary proceedings taken against legal practitioners, and(b) to give legal practitioners immunity from civil liability for communications made by them in connection with the official complaints and disciplinary system, and(c) to ensure that legal practitioners are aware of the standards of honesty, competence and diligence expected of them.
In this Part:appropriate Council means:
(a) in relation to a complaint concerning a person who was a barrister when the conduct the subject of the complaint allegedly occurred—the Bar Council, or(b) in relation to a complaint concerning a person who was a solicitor when the conduct the subject of the complaint allegedly occurred—the Law Society Council, or(c) in relation to a complaint concerning a person who was neither a barrister nor a solicitor when the conduct the subject of the complaint allegedly occurred—the Bar Council or the Law Society Council, whichever the Commissioner nominates for the purposes of the complaint.compensation order means an order of the Tribunal under section 171D.
complaint means a complaint under this Part.
information means an information laid in the Tribunal in relation to a complaint against a legal practitioner.
investigation means an investigation under this Part by a Council or the Commissioner into a complaint, and includes an independent investigation under section 151.
legal practitioner includes an interstate legal practitioner.
professional misconduct and unsatisfactory professional conduct are defined in section 127.
127 Professional misconduct and unsatisfactory professional conduct
(1) For the purposes of this Part, professional misconduct includes:(a) unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence, or(b) conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners, or(b1) (Repealed)(c) conduct that is declared to be professional misconduct by any provision of this Act, or(d) a contravention of a provision of this Act or the regulations, being a contravention that is declared by the regulations to be professional misconduct.(2) For the purposes of this Part:unsatisfactory professional conduct includes conduct (whether consisting of an act or omission) occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.
(3) Maintenance or champerty by a legal practitioner (except in connection with a conditional costs agreement under Part 11) may constitute professional misconduct despite the Maintenance and Champerty Abolition Act 1993.(4) For the avoidance of doubt, conduct:(a) involving an act or acts of bankruptcy, or(b) that gave rise to a finding of guilt of the commission of an indictable offence or a tax offence,whether occurring before, on or after the commencement of this subsection, is professional misconduct if the conduct would justify a finding that the legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners.
128 Legal practitioner to whom Part applies
(1) This Part applies to any legal practitioner, including:(a) a legal practitioner who does not hold a practising certificate, and(b) (Repealed)(c) a person who was a legal practitioner when the unsatisfactory professional conduct or professional misconduct the subject of a complaint allegedly occurred but who is no longer a legal practitioner (in which case this Part applies as if the person were still a legal practitioner).(2) However, this Part does not apply:(a) to a judicial officer within the meaning of the Judicial Officers Act 1986, or(b) to a Justice of the High Court, or(c) to a judge of a court created by the Parliament of the Commonwealth,regardless of whether the unsatisfactory professional conduct or professional misconduct the subject of a complaint allegedly occurred before or after the person’s appointment as such a judicial officer, Justice or judge.(3) This Part applies to a person who is or was an interstate legal practitioner only if the person practises or practised as a barrister or solicitor and barrister in this State.Note. This Part also applies to locally registered foreign lawyers. See section 48ZV.
128A Investigations not related to complaints under this Part
This Part does not affect the power of a Council to conduct an investigation into the affairs of a legal practitioner under the provisions of any other Part of this Act or under any other Act.Note. See for example the power of the Law Society Council to appoint a person to conduct an investigation under section 55.
129–133 (Repealed)
Division 3 Complaints about legal practitioners
(1) A complaint may be made under this Part about the conduct of a legal practitioner.(2) A complaint may be made by:(a) a Council, or(b) the Commissioner, or(c) any other person.(3) A complaint that is duly made is to be dealt with in accordance with this Part.(4) A complaint may be made about conduct that is alleged to have occurred either within or outside this State.(5) This section does not affect any other right of a person to complain about the conduct of a legal practitioner.
(1) A complaint is to be made to the Commissioner, unless it is made by the Commissioner or by a Council.(2) A complaint that is made to a Council instead of the Commissioner is to be forwarded immediately to the Commissioner by the Council.(3) A copy of a complaint made by a Council is to be forwarded immediately to the Commissioner by the Council.
136 Requirements for making complaints
(1) A complaint must be in writing.(2) A complaint must:(a) identify the complainant and the legal practitioner against whom the complaint is made, and(b) describe the alleged conduct of the legal practitioner the subject of the complaint.(3) The Commissioner, or the Council to which a complaint is referred for investigation, may require the complainant to do either or both of the following:(a) to give further information about the complaint,(b) to verify the complaint, or any further information, by statutory declaration.
137 Complaints made over 3 years after conduct concerned
(1) A complaint may be made about conduct of a legal practitioner irrespective of when the conduct is alleged to have occurred.(2) However, a complaint cannot be made more than 3 years after that conduct is alleged to have occurred unless a determination is made under this section that:(a) it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay, or(b) the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint.(3) A determination under this section:(a) in the case of a complaint made to or by the Commissioner—is to be made by the Commissioner, or(b) in the case of a complaint made by a Council—is to be made by the Council.(4) A determination made under this section is final and cannot be challenged in any proceedings by the complainant or the legal practitioner concerned.
138 Request by complainant for compensation order
(1) A complainant who has suffered a loss because of the conduct the subject of the complaint may request a compensation order.(2) A complainant who makes such a request must describe the loss suffered by the complainant.(3) Such a request may be made in the complaint. The request may also be made, by notice in writing to the Commissioner or the appropriate Council, at any time after the making and before the disposal of the complaint.(4) However, such a request may not be made after proceedings have been instituted in the Tribunal with respect to the complaint unless the Tribunal grants the complainant leave to make the request.(5) Such a request may only be made within 6 years after the conduct that caused the loss is alleged to have occurred.
139 Summary dismissal of complaints
(1) A complaint may be dismissed by the Commissioner, or by the Council to which it is referred for investigation, if:(a) further information about the complaint is not given as required by the Commissioner or Council, or(b) the complaint or further information is not verified as required by the Commissioner or Council.(2) A complaint made to the Commissioner may be dismissed by the Commissioner if the complaint is vexatious, misconceived, frivolous or lacking in substance.(3) A complaint may be dismissed under this section without any investigation or without completing an investigation.Note. Complaints may also be dismissed at any time under section 155A if it is in the public interest to do so.
(1) A complaint may, subject to this section, be withdrawn by the person who made it unless proceedings with respect to the complaint have been instituted in the Tribunal.(2) If the complaint was made to the Commissioner, the withdrawal of the complaint is not effective unless notice in writing of the withdrawal is given by the complainant to the Commissioner or to the Council to which the complaint has been referred.(3) The Commissioner or the Council to which the complaint has been referred may reject the withdrawal of the complaint if satisfied that it may involve unsatisfactory professional conduct or professional misconduct.(4) If a complaint is duly withdrawn, no further action is to be taken under this Part with respect to the complaint.(5) The withdrawal of a complaint does not prevent:(a) a further complaint being made under this Part, by the same or any other person, with respect to the matter the subject of the withdrawn complaint, or(b) action being taken on any other complaint made with respect to that matter.
141 Referral of complaints to Council
(1) The Commissioner may refer a complaint made to or by the Commissioner to the appropriate Council if the complaint is not to be investigated by the Commissioner under Division 5.(2) When referring a complaint to a Council, the Commissioner may recommend that the Council investigate the complaint or refer it to mediation, or both.(3) A decision to refer a complaint to a Council is to be made, as far as practicable, within 21 days after the complaint is made or, if further information or verification is required, within 21 days after the further information or verification is given or provided. A Council is not excused from dealing with a complaint because it is referred to the Council after the time prescribed by this subsection.(4) The Commissioner may refer a complaint to a Council even though the Commissioner commenced but did not complete an investigation into the complaint.(5) This section does not apply to a complaint that is dismissed by the Commissioner under this Division.
Division 4 Mediation of consumer disputes
(1) For the purposes of this Division, a consumer dispute is a dispute between a person and a legal practitioner in which the person seeks redress or a remedy by making a complaint under this Part.(2) The person may make a complaint in connection with the consumer dispute even though the dispute may not involve an issue of professional misconduct or unsatisfactory professional conduct.
(1) A Council or the Commissioner, when dealing with a complaint, may refer a consumer dispute for mediation.(2) If the consumer dispute involves an issue of professional misconduct or unsatisfactory professional conduct, the complaint is to continue to be dealt with under this Part after or during the attempt at mediation.(3) If the consumer dispute does not involve an issue of professional misconduct or unsatisfactory professional conduct, the dispute may be referred for mediation but no other action is required on the complaint.
Participation in the mediation by the parties to a consumer dispute is voluntary.
Mediation of a consumer dispute is not limited to formal mediation procedures and extends to encompass preliminary assistance in dispute resolution, such as the giving of informal advice designed to ensure that the parties are fully aware of their rights and obligations and that there is full and open communication between the parties concerning the dispute.
(1) The Commissioner is to maintain a list of mediators who are available to attempt a mediation of a consumer dispute.(2) The Commissioner is to consult the Councils and may consult any other relevant body about the selection and training of mediators.
147 Confidentiality of mediation process
(1) Evidence of anything said or admitted during the mediation or attempted mediation of a consumer dispute and a document prepared for the purposes of any such mediation are not admissible in any proceedings in a court or before a person or body authorised to hear and receive evidence.(2) A mediator may recommend to the appropriate Council and the Commissioner that a complaint should be investigated (without disclosing any such evidence, admission or document).
Division 5 Investigation of complaints
147A Investigation of complaints by Commissioner
(1) The Commissioner may conduct an investigation into a complaint instead of referring it to a Council for investigation, or may take over the investigation of a complaint from a Council, if the Commissioner considers it appropriate.(1A) The Commissioner may, with the consent of a Council, refer a complaint to the Council after the Commissioner has completed an investigation into the complaint (including after proceedings with respect to the complaint have been instituted in the Tribunal by the Commissioner).(2) A Council is to provide any assistance required by the Commissioner to conduct an investigation into a complaint (including copies of or access to all documents held by the Council that relate to the complaint or are required for the purpose of investigating the complaint).
148 Investigation of complaints by Council
(1) A Council must, subject to this section, conduct an investigation into each complaint referred to it by the Commissioner or made by the Council.(2) (Repealed)(2A) The Law Society Council and the Bar Council may consult and cooperate when dealing with a complaint against a legal practitioner arising from the same, or related, facts as a complaint against another legal practitioner for which the other Council is the appropriate Council. For the purposes of this subsection, the Councils may exchange information concerning the complaints.(2B) The Law Society Council or Bar Council may consult and cooperate with the appropriate regulatory authority of another State or a Territory when dealing with a complaint against an interstate legal practitioner under this Act or under a corresponding law. For the purposes of this subsection, the Councils and regulatory authority may exchange information concerning the complaint.(3) This section does not apply to a complaint which is taken over by the Commissioner under section 147A, a complaint which is referred to an independent investigator under section 151 or a complaint which is referred only to mediation.
149 Monitoring by Commissioner of conduct of investigation
(1) The Commissioner is to monitor investigations by a Council into complaints.(2) A Council investigating a complaint is to report to the Commissioner on the progress of the investigation if required to do so by the Commissioner.(3) A Council is required to provide any assistance required by the Commissioner to monitor investigations by the Council (including access to or a copy of all documents held by the Council that relate to the complaint or are required for the purpose of monitoring the investigation).
150 Directions by Commissioner about conduct of investigation
(1) The Commissioner may give the Council directions on the handling of a complaint being investigated by the Council if the Commissioner considers that it is in the public interest to do so having regard to the seriousness of the complaint.(2) The directions may include, for example, directions to pursue a particular line of inquiry or directions concerning the time for completing the investigation.(3) Directions may not be given on the decision to be taken by a Council following the investigation.(4) If the directions of the Commissioner about the investigation of a complaint are not complied with, the Commissioner may, under section 147A, take over the investigation of the complaint.(5) The Commissioner may also issue general guidelines to a Council about the investigation of complaints.
151 Independent investigation of certain complaints
(1) The Commissioner is to arrange for a complaint to be investigated by an independent investigator if requested to do so by the appropriate Council and if the Commissioner decides not to conduct the investigation into the complaint under section 147A.(2) The independent investigator is to report to the Council on his or her investigation of the complaint.(3) This Part applies to any such investigation as if it were conducted by the Council (except that the decision on the complaint is to be made by the Council after consideration of the report of the independent investigator).(4) A complaint is to be referred for an independent investigation if the Council is satisfied that it is in the interests of justice or in the public interest to do so.(5) A Council is to provide any assistance required by the independent investigator to conduct an investigation into a complaint (including copies of or access to all documents held by the Council that relate to the complaint or are required for the purpose of investigating the complaint).(6) The independent investigator is to provide a copy of his or her report on the investigation to the Commissioner.
152 Powers of Council or Commissioner when investigating complaint
(1) For the purpose of investigating a complaint, a Council or the Commissioner may, by notice in writing served on any legal practitioner, require the legal practitioner to do any one or more of the following:(a) to provide written information, by a date specified in the notice, and to verify the information by statutory declaration,(b) to produce, at a time and place specified in the notice, any document (or a copy of any document) specified in the notice,(c) to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner.(1A) A Council or the Commissioner may inspect any document produced before the Council or Commissioner under this section and may retain it for such period as the Council or Commissioner thinks necessary for the purposes of an investigation in relation to which it was produced. A Council or the Commissioner may make copies of the document or any part of the document.(2) If a legal practitioner against whom a complaint is made claims a lien over documents relating to the matter the subject of the complaint, the Council or the Commissioner may, by notice in writing served on the legal practitioner, require the legal practitioner to waive the lien if satisfied it is necessary for the orderly transaction of the client’s business.(3) A notice is served under this section on a legal practitioner if:(a) it is served personally on the practitioner, or(b) it is sent by post to the practitioner’s place of practice, business or residence last notified by the practitioner to a Council.(3A) A notice under this section is to specify a reasonable time for compliance with the requirement.(4) A legal practitioner who, without reasonable excuse, fails to comply with such a requirement is guilty of professional misconduct.(5) A legal practitioner must not mislead or obstruct a Council or the Commissioner in the exercise of any function under this Division. The wilful contravention of this subsection is capable of being professional misconduct.Note. Documents has a wide meaning. The term is defined in the Interpretation Act 1987 to mean any record of information. The term would include any file that was itself a record of information.
153 Referral of matters to costs assessors
(1) A Council or the Commissioner may, for the purpose of investigating a complaint, apply under Part 11 for an assessment of costs claimed by a legal practitioner.(2) Part 11 applies to any such application as if the Council or the Commissioner were a client of the legal practitioner.
154 Investigation to be conducted expeditiously
An investigation by a Council or the Commissioner is to be conducted as expeditiously as possible.
155 Decision after investigation of complaint
(1) After a Council or the Commissioner has completed an investigation into a complaint against a legal practitioner, the complaint is to be dealt with in accordance with this section.(2) The Council or the Commissioner must institute proceedings in the Tribunal with respect to the complaint against the legal practitioner if satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct.(3) However, if the Council or the Commissioner is satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct (but not professional misconduct), the Council or the Commissioner may instead:(a) reprimand the legal practitioner, or(b) dismiss the complaint if satisfied that the legal practitioner is generally competent and diligent and that no other material complaints have been made against the legal practitioner.(4) The Council or the Commissioner is to dismiss the complaint against the legal practitioner if satisfied that there is no reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct.(5) If a Council or the Commissioner decides to dismiss a complaint or to reprimand a legal practitioner under subsection (3) and the complainant requested a compensation order in connection with the complaint, the Council or the Commissioner may require the payment of compensation by the legal practitioner or the successful mediation of the consumer dispute before the decision takes effect.(6) If a Council or the Commissioner decides to reprimand a legal practitioner under this section and the practitioner does not consent to the reprimand, the practitioner may appeal to the Tribunal against the decision. Section 171N applies to an appeal under this subsection.
155A Dismissal of complaints if in public interest
(1) The Commissioner or the Council may dismiss a complaint, whether before, during or after the investigation of the complaint, if satisfied that it is in the public interest to do so.(2) The circumstances in which a complaint may be so dismissed include (but are not limited to) a complaint about a legal practitioner who has retired from practice or is prevented from practising or a complaint about conduct that is the subject of another complaint under this Part.(3) If proceedings with respect to a dismissed complaint have been instituted in the Tribunal by the Commissioner or Council, the Tribunal may, on the application of the Commissioner or Council, dismiss the proceedings.
156 Record of decision after investigation of complaint
A Council or the Commissioner must cause a record of its decision with respect to a complaint, together with the reasons for the decision, to be kept in respect of each investigation conducted under this Division.
Division 6 Review of Councils’ decisions
(1) A complainant may apply to the Commissioner for a review of any of the following decisions made by a Council:(a) a decision to dismiss a complaint made by the complainant,(b) a decision to reprimand the legal practitioner because of the complaint,(c) a decision to omit, from the allegations particularised in an information laid before the Tribunal in respect of a complaint, matter that was originally part of the complaint made to the Council.(2) The application for review is to be in writing.(3) The application for review may be made at any time within 2 months after the decision is notified to the complainant.(4) If the Council does not notify the complainant of its decision with respect to the complaint within 6 months after the complaint was referred to the Council, the matter may be reviewed under this section or section 159. In that case, the Council is taken to have dismissed the complaint for the purposes of this Division.(5) The Commissioner may postpone a review referred to in subsection (4) for a specified period if satisfied that there is good reason for the Council’s delay in making a decision with respect to the complaint. In that case, the Council is taken to have dismissed the complaint for the purposes of this Division if it does not notify the complainant of its decision within that further specified period.
(1) The Commissioner is to review each decision of a Council that is the subject of an application for review under this Division.(2) The Commissioner may also review a Council’s decision (of a type referred to in section 158 (1)) at the request of the Council or on the Commissioner’s own initiative.(3) The Commissioner must consult with a Council before completing a review of the Council’s decision.(4) The Commissioner has the same powers when reviewing a decision of the Council as the Commissioner has under section 152 when investigating a complaint.
160 Decision of Commissioner on review
(1) When the Commissioner has completed the review of a Council’s decision, the Commissioner may:(a) confirm that the complaint is dismissed or that the legal practitioner is reprimanded, or(b) refer the matter to mediation, or(c) re-investigate the complaint or direct the appropriate Council to do so, or(c1) investigate any part of the complaint that was omitted by the Council from the allegations particularised in the information laid by the Council, or(c2) direct the appropriate Council to investigate, or re-investigate, any part of the complaint that was omitted by the Council from the allegations particularised in the information laid by the Council, or(c3) reprimand the legal practitioner, or(d) institute proceedings in the Tribunal against the legal practitioner or direct the appropriate Council to do so.(2) If the Commissioner decides to re-investigate a complaint, or to investigate part of a complaint, the provisions of this Part apply as if the Commissioner had taken over the investigation of the complaint.(3) Before instituting proceedings in the Tribunal, the Commissioner must notify the relevant Council of the Commissioner’s intention to do so and of the reasons for the decision.(4) A Council is required to comply with a direction of the Commissioner under this section. The Commissioner may take further action under this section if the Council fails to comply with the direction.(5) If the Commissioner decides to reprimand a legal practitioner under this section and the practitioner does not consent to the reprimand, the practitioner may appeal to the Tribunal against the decision. Section 171N applies to an appeal under this subsection.
The Council is required to provide any assistance required by the Commissioner to conduct a review or re-investigation (including access to or a copy of all documents held by the Council that relate to the complaint or are required for the purpose of the review or re-investigation).
Division 7 Applications to the Tribunal
167 Institution of proceedings and hearings
(1) Proceedings may be instituted in the Tribunal with respect to a complaint against a legal practitioner by an information laid by the appropriate Council or the Commissioner in accordance with this Part.(2) The Tribunal is to conduct a hearing into each allegation particularised in the information.(3) Before the commencement of the hearing, the legal practitioner must file a reply to the allegations in the information in accordance with the rules of the Tribunal and the directions of the Registrar of the Tribunal.(4) The Tribunal may, subject to its rules and the rules of procedural fairness, order the joinder of any 2 informations against the same or different legal practitioners.(5) This includes the power to order, if it is in the interests of justice to do so, the joinder of:(a) more than one information against the same solicitor or barrister, or(b) an information against one or more barristers and an information against one or more solicitors if all informations are founded on the same, or closely related, acts or omissions.
167AA Time for instituting proceedings
(1) An information may be laid under this Part at any time within 6 months after the Council or Commissioner decides that proceedings be instituted in the Tribunal with respect to the complaint concerned.(2) Despite subsection (1), the Tribunal may, on application in writing by the Council or Commissioner, as the case may require, extend the time for laying an information referred to in subsection (1).(3) In exercising the power to extend the time for laying an information, the Tribunal is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing) the Tribunal is to have regard to the following:(a) the public interest,(b) the extent to which, having regard to the delay, there is or may be prejudice to the legal practitioner concerned by reason that evidence that would have been available if the information had been laid within the 6-month period is no longer available,(c) the reasonableness of the applicant’s explanation for the delay in laying the information.(4) The time for laying an information may be extended under subsection (2) although that time has expired.(5) This section has effect despite anything in section 44 of the Administrative Decisions Tribunal Act 1997 or the rules or regulations under that Act.(6) For the purposes of subsection (1), a decision that proceedings be instituted is made when:(a) the Council or Commissioner decides that there is a reasonable likelihood that the legal practitioner concerned will be found guilty of unsatisfactory professional conduct or professional misconduct, as referred to in section 155 (2), or(b) the Commissioner decides to institute proceedings in the Tribunal against the legal practitioner concerned, or to direct the appropriate Council to do so, under section 160 (1) (d).(7) An official record or notification of a decision referred to in subsection (6) (a) or (b) and stating the date the decision was made is evidence that the decision was made and of the date the decision was made.
167A Tribunal may vary an information
(1) The Tribunal may, on the application of a Council or the Commissioner who laid an information, vary the information laid so as to omit allegations or to include additional allegations if the Tribunal is satisfied, having regard to all the circumstances, that it is reasonable to do so.(2) Without limiting subsection (1), when considering whether or not it is reasonable to vary an information, the Tribunal is to have regard to whether varying the information will affect the fairness of the proceedings.(3) The variation of an information by the Tribunal to include an additional allegation is not precluded because the alleged conduct concerned occurred more than 3 years before the variation is made.
167B Substitution of informant
(1) If a Council or the Commissioner takes over a complaint after an information has been laid in respect of the complaint, the Tribunal may, on the application of the Council or Commissioner, direct that the informant in the proceedings is to be the Council or Commissioner, whichever has taken over the complaint.(2) This section has effect even if a hearing of the matter has commenced before the Tribunal.
(1) For the purpose of conducting a hearing into a question of professional misconduct, the Tribunal is to observe the rules of law governing the admission of evidence despite any contrary provisions of section 73 (Procedure of the Tribunal generally) of the Administrative Decisions Tribunal Act 1997.(2) In relation to the conduct of any other hearing of a matter allocated to the Legal Services Division of the Tribunal by the Administrative Decisions Tribunal Act 1997, section 73 of that Act applies to the determination of that matter.
(1) The following persons are entitled to appear at a hearing conducted by the Tribunal:(a) the legal practitioner against whom the complaint has been made,(b) the appropriate Council,(c) the Commissioner,(d) the Attorney General,(e) the complainant, subject to subsection (2).(2) Unless a complainant is granted leave to appear at the hearing by the Tribunal, the complainant’s entitlement to appear is limited to those aspects of the hearing that relate to a request by the complainant for a compensation order.(3) The Tribunal may grant leave to any other person to appear at a hearing if the Tribunal is satisfied that it is appropriate for that person to appear at the hearing.(4) Despite section 71 of the Administrative Decisions Tribunal Act 1997, any person who is entitled to appear at a hearing, or who is granted leave to appear at a hearing, may appear personally or be represented by a barrister or solicitor or, with the leave of the Tribunal, by any other person.(5) Any person who appears at a hearing (otherwise than as a witness) is taken to be a party to the hearing.
170 Certain hearings to be held in private
(1) The Tribunal is to direct that a hearing (or part of a hearing) relating only to a question of unsatisfactory professional conduct be held in the absence of the public unless it is of the opinion that the presence of the public is in the public interest or the interests of justice.(2) Nothing in this section affects the generality of section 75 (Proceedings on hearing to be conducted in public) of the Administrative Decisions Tribunal Act 1997 in relation to hearings other than those referred to in subsection (1).
171 Power to disregard procedural lapses
(1) The Tribunal may order that a failure by the Commissioner or a Council, or a person acting for them or under their direction, to observe a procedural requirement in relation to a complaint is to be disregarded, if satisfied that the parties to the hearing have not been prejudiced by the failure.(2) This section applies to a failure occurring before proceedings were instituted in the Tribunal in relation to the complaint as well as to a failure occurring afterwards.
171C Determinations of Tribunal
(1) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct, the Tribunal may do any one or more of the following:(a) order that the name of the legal practitioner be removed from the roll of legal practitioners if the legal practitioner is guilty of professional misconduct,(a1) order that the name of the interstate legal practitioner be removed by the appropriate regulatory authority of another State or a Territory from the roll of that State or Territory that corresponds to the roll of legal practitioners if the interstate legal practitioner is guilty of professional misconduct,(b) order that the legal practitioner’s practising certificate be cancelled,(c) order that a practising certificate not be issued to the legal practitioner until the end of the period specified in the order,(c1) order that the appropriate regulatory authority of another State or a Territory cancel the interstate legal practitioner’s practising certificate or order that an interstate practising certificate not be issued to the interstate legal practitioner until the end of the period specified in the order,(d) order that the legal practitioner pay a fine specified in the order, not exceeding $50,000 if the legal practitioner is guilty of professional misconduct or not exceeding $5,000 if the legal practitioner is guilty of unsatisfactory professional conduct,(e) make an order publicly reprimanding the legal practitioner or, if there are special circumstances, privately reprimanding the legal practitioner,(f) order that the legal practitioner undertake and complete a course of further legal education specified in the order,(f1) in the case of a barrister who is a public notary, order that the barrister cease to accept instructions in relation to notarial services,(g) in the case of a solicitor, make any one or more of the orders referred to in subsection (2),(g1) in the case of a locally registered foreign lawyer, order that the registration of the foreign lawyer under Part 3C be cancelled,Note. This section applies to locally registered foreign lawyers. See section 48ZV.(h) if applicable, make a compensation order,(i) make ancillary orders.(2) In the case of a solicitor, the Tribunal may do any one or more of the following:(a) (Repealed)(b) order that the solicitor’s practice be subject to periodic inspection by the person, and for the period, specified in the order,(c) order that the solicitor seek advice in relation to the management of the solicitor’s practice from the person specified in the order,(d) order that the solicitor cease to employ in the solicitor’s practice the person specified in the order,(e) order that the solicitor employ in the solicitor’s practice a person belonging to the class of persons specified in the order,(f) order that the solicitor cease to accept instructions in relation to the class of legal services specified in the order,(g) order that the solicitor’s practising certificate be endorsed with a condition restricting the solicitor from acting as a solicitor otherwise than in the course of employment by a solicitor holding an unrestricted practising certificate,(h) order that the appropriate regulatory authority of another State or a Territory endorse the interstate practising certificate of a solicitor who is an interstate legal practitioner with a condition restricting the solicitor from acting as a solicitor otherwise than in the course of employment by a solicitor holding an unrestricted practising certificate (or its equivalent) in that State or Territory.(3) If the Tribunal makes an order publicly reprimanding a legal practitioner, the Tribunal is to publish the order and a statement of its reasons for making the order.(4) If the Tribunal makes an order privately reprimanding a legal practitioner, the Tribunal is to provide the appropriate Council and the Commissioner with a copy of the order and a statement of its reasons for making the order.(5) It is sufficient compliance with the requirement to publish an order under subsection (3) if the Tribunal provides to the Commissioner sufficient information to enable the Commissioner to exercise the Commissioner’s functions in respect of the register of disciplinary action required to be kept under Division 9A.
171D Compensation orders of Tribunal
(1) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the legal practitioner is guilty of unsatisfactory professional conduct or professional misconduct and that the complainant has suffered loss because of the conduct concerned, the Tribunal may do any one or more of the following to compensate the complainant:(a) order that the legal practitioner waive or repay the whole or a specified part of the amount charged to the complainant by the legal practitioner in respect of the legal services specified in the order,(b) order that the legal practitioner provide to the complainant the legal services specified in the order, either free of charge or for a specified charge,(c) order that the legal practitioner waive any lien in respect of the document or class of documents specified in the order,(d) order that the legal practitioner pay to the complainant, by way of monetary compensation for the loss, the amount specified in the order.(2) A compensation order for the payment, waiver or repayment of an amount exceeding $10,000 is not to be made unless the complainant and the legal practitioner both consent to the making of the order.(3) A compensation order is not to be made in respect of any loss for which the complainant has received, or is entitled to receive, compensation under an order made by a court or compensation from the Fidelity Fund.(4) The recovery of compensation awarded under this section does not affect any other remedy available to the complainant, but any compensation so awarded is to be taken into account in any other proceedings by or on behalf of the complainant in respect of the same loss.(5) In this section, legal practitioner includes an incorporated legal practice of which the legal practitioner is an officer or employee.
171E Award of costs by Tribunal
(1) The Tribunal may make orders requiring a legal practitioner whom it has found guilty of unsatisfactory professional conduct or professional misconduct to pay costs (including the costs of the Commissioner, the appropriate Council and the complainant).(2) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the practitioner is not guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may (but only if it considers that special circumstances so warrant) order payment from the Public Purpose Fund to the practitioner of the legal practitioner’s costs.(3) An order for costs:(a) may be for a specified amount or an unspecified amount, and(b) if for an unspecified amount, may specify the basis on which the amount is to be determined, and(c) may specify the terms on which costs must be paid.
171F Appeals against orders and decisions of Tribunal
(1) An order or other decision made by the Tribunal under this Part may be appealed to the Supreme Court by a party to the proceedings in which the order or decision was made.(2) Section 75A of the Supreme Court Act 1970 accordingly applies to an appeal under this section, and the appeal is to be:(a) by way of rehearing, and(b) not by way of a new hearing (a de novo hearing).(3) Subsection (2) does not affect the provisions of section 75A of the Supreme Court Act 1970 relating to the receipt of evidence by the Supreme Court.(4) Despite subsection (1), an appeal does not lie to the Supreme Court under this section against any of the following decisions of the Tribunal except by leave of the Supreme Court:(a) an interlocutory decision,(b) a decision made with the consent of the parties,(c) a decision as to costs.(5) No appeals lie under Chapter 7 of the Administrative Decisions Tribunal Act 1997 to an Appeal Panel against an order or other decision of the Tribunal under this Part.
Any fine imposed on a legal practitioner by the Tribunal must be paid to the trustees of the Public Purpose Fund for credit of that Fund.
Division 9 Notifications to complainant and legal practitioner
171J Notification of decisions of Council or Commissioner
(1) A Council or the Commissioner must cause the decision with respect to a complaint, together with the reasons for the decision, to be notified in writing to the complainant and to the legal practitioner against whom the complaint was made.(2) In the case of a decision of a Council to dismiss the complaint or reprimand the legal practitioner, the right of the complainant to apply to the Commissioner for a review of the decision must also be included in the notice to the complainant.(3) A notice to a complainant is not required under this section if the complaint was made by the Commissioner or a Council.
171K Notification about review of Council decisions
(1) The Commissioner must cause his or her decision on a review of a Council’s decision with respect to a complaint, together with his or her reasons for the decision, to be notified in writing to the complainant and the legal practitioner against whom the complaint was made.(2) This section applies even if the complainant did not apply for the review.
171L Notification of progress and result of disciplinary proceedings
(1) The informant in disciplinary proceedings in the Tribunal must cause the complainant to be notified in writing of the date set down by the Tribunal for hearing the matter and of the determination of the Tribunal.(2) This section does not apply to disciplinary proceedings to which the complainant is a party.
Division 9A Publicising disciplinary action
In this Division:barrister includes a former barrister.
disciplinary action means any of the following actions, whether or not taken under this Part:
(a) the suspension or cancellation of the practising certificate of a legal practitioner,(b) the refusal to issue a practising certificate to a qualified person,(c) the removal of the name of a legal practitioner from the roll of legal practitioners,(d) any order made by a regulatory authority in respect of a legal practitioner following a finding of professional misconduct or unsatisfactory professional conduct by the legal practitioner, other than an order under this Part privately reprimanding the practitioner,(e) the appointment of a receiver of all or any property of a solicitor,(f) the appointment of a manager of a solicitor’s practice.Note.Legal practitioner includes an interstate legal practitioner (see section 126).
solicitor includes a former solicitor.
171LB Publicising disciplinary action
(1) A Council may publicise disciplinary action taken against a legal practitioner in any manner the Council thinks fit.(2) However:(a) the Bar Council must publicise disciplinary action taken against a barrister (including the name and other identifying particulars of the person against whom the disciplinary action was taken), and(b) the Law Society Council must publicise disciplinary action taken against a solicitor (including the name and other identifying particulars of the person against whom the disciplinary action was taken).(3) Without limiting subsection (1), it is sufficient compliance with subsection (2) if a Council provides to the Commissioner sufficient information to enable the Commissioner to exercise the Commissioner’s functions in respect of the register of disciplinary action required to be kept under this Division.(4) The requirement to publicise disciplinary action applies only to disciplinary action taken after the commencement of this section. However, a Council may publicise disciplinary action taken before the commencement of this section in accordance with this Division.(5) This section extends to disciplinary action taken outside this State, to the extent that the particulars of that disciplinary action are known to a Council.
171LC Register of disciplinary action
(1) The Commissioner must keep a register of disciplinary action taken against barristers and solicitors.(2) The register is to include the following:(a) the name and other identifying particulars of the person against whom the disciplinary action was taken,(b) particulars of the disciplinary action taken.(3) The register is to be made available for public inspection on the internet site of the Commissioner.(4) The Commissioner may, on request, provide information recorded in the register to members of the public in any other manner.(5) The Commissioner may correct any error in or omission from the register.(6) In addition to keeping the register, the Commissioner may publicise disciplinary action taken against any legal practitioner in any other manner the Commissioner thinks fit.(7) The requirement to keep a register of disciplinary action applies only to disciplinary action taken after the commencement of this section. However, the Commissioner may include in the register disciplinary action taken before the commencement of this section, or publicise such action in any other manner, in accordance with this Division.(8) This section extends to disciplinary action taken outside this State, to the extent that the particulars of that disciplinary action are known to the Commissioner.
171LD Quashing of disciplinary action
(1) If disciplinary action is quashed on appeal or review after the action was publicised by a Council or the Commissioner under this Division, the result of the appeal or review is to be publicised with equal prominence by the Council or Commissioner.(2) If a Council publicised the disciplinary action by providing information about it to the Commissioner, the Council must provide information about the result of the appeal or review to the Commissioner.(3) If the disciplinary action was recorded in the register kept by the Commissioner under this Division, any reference to that disciplinary action is to be removed from the register.
171LE Liability for publicising disciplinary action
(1) No liability is incurred by the State, the Commissioner, a Council or any person acting at the direction of the Commissioner or a Council in respect of anything done in good faith for the purpose of:(a) publicising disciplinary action under this Division, or(b) exercising the functions of the Commissioner or a Council under this Division.(2) No liability is incurred by a person publishing in good faith disciplinary action, or a fair report or summary of disciplinary action, recorded in a register kept by the Commissioner, or otherwise publicised by the Commissioner or a Council, under this Division.(3) In this section:liability includes liability in defamation.
(1) The provisions of this Division are subject to section 56 (Secrecy), but apply despite section 171P (Offence: improper disclosure of information).(2) The provisions of this Division are subject to any order made by the Tribunal under section 75 of the Administrative Decisions Tribunal Act 1997.Note. Section 75 of the Administrative Decisions Tribunal Act 1997 allows the Tribunal to make an order prohibiting or restricting the disclosure of information.(3) If disciplinary action involves a suspension or cancellation of the practising certificate of a person, or a refusal to issue a practising certificate to a person, because of the infirmity, injury or mental or physical illness of the person, the reason for the suspension, cancellation or refusal, and any other information relating to the infirmity, injury or mental or physical illness of the person, is not to be recorded in the register kept under this Division or otherwise publicised.(4) Despite subsections (2) and (3), the name and other identifying particulars of the person against whom the disciplinary action was taken, and the kind of disciplinary action taken, must be publicised, and recorded in the register kept under this Division, in accordance with the requirements set out in this Division.
171M Jurisdiction of Supreme Court not affected
(1) The inherent power or jurisdiction of the Supreme Court with respect to the discipline of legal practitioners is not affected by anything in this Part or Part 2.(2) That inherent power or jurisdiction extends to interstate legal practitioners and locally registered foreign lawyers.
171MA Information about complaints procedure
Each Council and the Commissioner must produce information about the procedure for dealing with complaints under this Act and ensure that such information is made available to members of the public on request.
171MB Performance criteria relating to handling of complaints by Councils and Commissioner
(1) Each Council and the Commissioner must develop performance criteria relating to the handling of complaints under this Part.(2) The criteria may be developed jointly or independently by each of the Councils and the Commissioner.(3) Each Council is to include the relevant criteria in its annual report under section 57, together with an assessment of its performance against the criteria in the period to which the report relates.(4) The Commissioner is to include the relevant criteria in the Commissioner’s annual report under section 59G, together with an assessment of the Commissioner’s performance against the criteria in the period to which the report relates.
171N Appeals to Tribunal concerning reprimands
(1) This section applies to an appeal referred to in section 155 (6) or 160 (5) against a decision by a Council or the Commissioner to reprimand a legal practitioner.(2) The appeal is an external appeal within the meaning of the Administrative Decisions Tribunal Act 1997.(3) The appeal is to be heard and determined by the Legal Services Division of the Tribunal, constituted in accordance with whichever of the constitutions listed in clause 4 (1) of Part 3 of Schedule 2 to the Administrative Decisions Tribunal Act 1997 that the President of the Tribunal determines as being appropriate for the particular case.(4) In determining the appeal, the Tribunal may:(a) affirm the decision to reprimand the legal practitioner and dismiss the appeal, or(b) quash the decision to reprimand the legal practitioner and remit the matter back to the Council or Commissioner for the complaint concerned to continue to be dealt with under this Part, or(c) quash the decision to reprimand the legal practitioner and dismiss the complaint concerned.(5) If the Tribunal affirms the decision to reprimand the legal practitioner, the Tribunal must forthwith make an order publicly reprimanding the legal practitioner, whether or not the reprimand appealed against has already been administered.(6) If the Tribunal quashes the decision to reprimand the legal practitioner and remits the matter back to the Council or Commissioner, the complaint concerned is to be dealt with as if the decision to reprimand the practitioner had not been made.(7) If the Tribunal quashes the decision to reprimand the legal practitioner and the reprimand has already been administered, the reprimand is withdrawn by force of this section.(8) The provisions of section 171C (3) and (5) relating to the publication of an order and of a statement of reasons extend to an order made under this section publicly reprimanding the legal practitioner.(9) Section 171F applies in relation to the appeal.(10) Without limiting anything in the Administrative Decisions Tribunal Act 1997, rules or regulations may be made under that Act in connection with appeals to which this section applies, including the making, hearing and determination of appeals.(11) This section prevails to the extent of any inconsistency with the Administrative Decisions Tribunal Act 1997 or any rules or regulations made under that Act.
171O Reports required by Attorney General
(1) Each Council and the Commissioner must submit to the Attorney General, at such times and in respect of such periods as the Attorney General directs, reports on the handling of complaints.(2) A report is to deal with such matters as the Attorney General directs and with such other matters as the Council or Commissioner considers appropriate to include in the report.(3) The obligations under this section are in addition to any obligation to provide an annual report under this or any other Act.
171P Offence: improper disclosure of information
(1) A person who discloses information obtained in the administration of this Part, or in relation to any notification required by the regulations, or statement given or investigation carried out under Division 1AA of Part 3, is guilty of an offence unless the disclosure is made:(a) with the consent of the person to whom the information relates, or(b) in connection with the administration of this Part, or(c) for the purpose of legal proceedings arising out of this Act or of any report of any such proceedings, or(d) with other lawful excuse.Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.
(2) Subsection (1) does not apply to the disclosure of information by the Commissioner, or a member of the Law Society Council, to the Chief Commissioner of State Revenue.
171Q Protection from liability
(1) A matter or thing done or omitted to be done by:(a) a Council, or(b) any member of a Council, or(c) any committee or subcommittee of a Council, or any member of a committee or subcommittee of a Council, or(d) the Tribunal, or(e) any member of the Tribunal, or(f) the Registrar of the Tribunal, or(g) the Commissioner, or(h) the Bar Association, or(i) the Law Society, or(j) a consultant engaged by the Commissioner pursuant to section 59H (4), or(k) a mediator to whom a dispute is referred under Division 4, or(l) any member of the staff of any of the above,does not, if the matter or thing was done or omitted to be done in good faith for the purpose of the administration of this Part, subject any such member, the Commissioner, the Registrar, the consultant, the mediator or the member of staff personally to any action, liability, claim or demand.(2) In this section:(a) a reference to a Council includes a reference to a committee of the Council, and(b) a reference to a member of a Council includes a reference to a member of any such committee.
171R Certain persons not compellable witnesses
(1) A person referred to in section 171Q is not compellable in any legal proceedings (including proceedings before the Tribunal) to give evidence or produce documents in respect of any matter in which the person was involved in the course of the administration of this Part.(2) This section does not apply to proceedings under Part 3 of the Royal Commissions Act 1923 or before the Independent Commission Against Corruption.
171S Duty of confidentiality of client communications
(1) A legal practitioner must comply with a requirement under this Part to answer a question or to produce information or a document despite any duty of confidentiality in respect of a communication between the practitioner and a client (but only if the client is the complainant or consents to its disclosure).(2) A legal practitioner may disclose a matter to the Commissioner, a Council or the Tribunal in breach of any such duty of confidentiality if the Commissioner, Council or Tribunal is satisfied that it is necessary for the practitioner to do so in order to rebut an allegation in the complaint.
171T Costs of administering Part
Any amount payable from the Public Purpose Fund for the purpose of meeting the costs of the Commissioner or the Tribunal is to be paid, in accordance with section 69G, to the Treasurer for credit of the Consolidated Fund.
(1) This section applies if a legal practitioner gives an undertaking to the Commissioner or a Council in the course of:(a) investigating or dealing with a complaint against the legal practitioner, or(b) a mediation conducted in connection with a complaint against or a consumer dispute with the legal practitioner.(2) A breach of the undertaking is capable of being unsatisfactory professional conduct or professional misconduct.(3) Nothing in this section implies that breaches of other undertakings are not capable of being unsatisfactory professional conduct or professional misconduct.