Division 5Division 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section, conduct an investigation into each complaint referred to it by the Commissioner or made by the Council.(2) (Repealed)(2A) The Law Society Council and the Bar Council may consult and cooperate when dealing with a complaint against a legal practitioner arising from the same, or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.