ACT Law Society not barred from imposing disciplinary proceedings despite dismissing complaint

The Law Society argued that it was statutorily bound to investigate the second complaint

ACT Law Society not barred from imposing disciplinary proceedings despite dismissing complaint

The ACT Law Society's dismissal of an initial complaint does not bar subsequent investigation and disciplinary proceedings based on a second complaint, the ACT Supreme Court has ruled.

In Alan Hill and James Colquhoun v Council of the Law Society of the Australian Capital Territory [2023] ACTSC 282, the ACT Law Society received two complaints concerning the conduct of Alan Hill and  James Colquhoun. Hill was a solicitor and director of Initiative Holdings Pty. Ltd. (IHPL), and Colquhoun was the solicitor acting for IHPL.

The Law Society dismissed the first complaint. However, it initiated an investigation after it received a second complaint, leading to two applications for disciplinary action filed in the ACT Civil and Administrative Tribunal (ACAT).

The dispute involved the sale of a law firm and allegations of false statements in affidavits. Following the first complaint, the Professional Standards Committee of the Law Society dismissed the complaint without requiring an investigation because the complaint lacked substance.

In the second complaint, the Law Society decided that Colquhoun's conduct, considered individually and globally, constituted professional misconduct. It resolved to exercise its discretion to commence disciplinary proceedings against it. Colquhoun argued that dismissing the first complaint barred the Law Society from pursuing the second complaint.

The matter reached the ACT Supreme Court, where the central issue was whether the Law Society had jurisdiction to make the applications for disciplinary action to the ACAT.

The Law Society contended that its statutory obligations compelled it to investigate the second complaint. Consequently, it had the jurisdiction to apply for disciplinary action as it is one of the steps which may be taken following an investigation. The Law Society further argued that the first and second complaints were not about the same facts. The first complaint focused on the affidavit sworn by Hill, while the second was about the statutory demand and comments signed by Colquhoun.

Colquhoun's counsel argued that the issues raised in the first complaint, particularly the allegations concerning Hill's affidavit, were echoed in the second complaint.

A pivotal question emerged regarding whether the Australian Capital Territory Legal Profession Act 2006 barred the making or investigation of the second complaint after the dismissal of the first complaint. Colquhoun's argument centred on the notion that disciplinary action could not be exercised more than once, considering the dismissal as a finality. However, the Law Society contended that the act did not expressly prohibit such actions.

The ACT Supreme Court carefully analysed these issues, considering various sections of the act, to ascertain the legislative intent and framework. The court ultimately declined to find that the dismissal of the first complaint was binding and conclusive, allowing for the investigation of the second complaint.

Moreover, the ACAT addressed the discretionary nature of s. 399(1)(d) of the act, emphasising that the Law Society had the discretion to dismiss complaints when it deemed further investigation unnecessary. The tribunal rejected the argument that s. 399(1)(d) imposed an obligation to dismiss the second complaint.

Ultimately, the court ruled the dismissal of the first complaint was not final or conclusive, allowing the Law Society to investigate and take disciplinary action on the second complaint. Accordingly, the court affirmed the Law Society's jurisdiction to apply for disciplinary action to the ACAT.

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