Practitioner D3 v Council of the Law Society of the ACT [2018] FCA 2080

Practitioner D3 v Council of the Law Society of the ACT [2018] FCA 2080

The proceeding was an abuse of process and had no reasonable prospect of success because the applicant sought to re-agitate claims already raised and determined adversely to him in ACT proceedings, or compromised by consent orders from which he obtained forensic advantage, and because the Federal Court had no jurisdiction to set aside ACAT orders made in the exercise of Territory powers. The constitutional argument was bound to fail because the Australian Capital Territory is not a State for s 75(iv) of the Constitution, ss 3A and 78AA of the Judiciary Act did not alter that conclusion, and ACAT was not exercising federal jurisdiction or Commonwealth judicial power.

Jurisdiction
Australia
Judgment Date
21 December 2018
Procedural Posture
Application for Summary Judgment in a Federal Court Proceeding Seeking Relief Under Section 39 B of the Judiciary Act 1903 / First Respondent's Application for Summary Judgment and Applicant's Proposed Amendment of Statement of Claim
Outcome
Leave to amend the statement of claim refused; proceeding dismissed as an abuse of process; applicant ordered to pay the first respondent's costs on an indemnity basis.
Legal Topics
['summary Judgment' 'abuse of Process' 'federal Jurisdiction' 'act Civil and Administrative Tribunal Jurisdiction' 'professional Misconduct' 'indemnity Costs']
['practice and Procedure' 'administrative Law' 'constitutional Law' 'legal Profession'] ['summary Judgment' 'abuse of Process' 'federal Jurisdiction' 'act Civil and Administrative Tribunal Jurisdiction' 'professional Misconduct' 'indemnity Costs']

Case Brief

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Procedural Posture

Application for Summary Judgment in a Federal Court Proceeding Seeking Relief Under Section 39 B of the Judiciary Act 1903 / First Respondent's Application for Summary Judgment and Applicant's Proposed Amendment of Statement of Claim

Legal Issues

  1. 1 ['Whether the proceeding should be summarily dismissed as an abuse of process because it sought to re-agitate issues already determined in ACT proceedings or resolved by consent orders.' "Whether leave to amend the statement of claim should be granted to challenge the ACAT orders and the Law Society Council's originating application." 'Whether the ACAT exercised federal jurisdiction contrary to s 75(iv) of the Constitution on the basis that the Australian Capital Territory is a State.' 'Whether the Federal Court had power to set aside orders made by the ACAT in the exercise of Territory powers.' 'Whether ss 3A and 78AA of the Judiciary Act 1903 (Cth) made a Territory a State for the purposes of s 75(iv) of the Constitution.' "Whether the ACAT's disciplinary powers involved the exercise of Commonwealth judicial power."]

Ratio Decidendi

The proceeding was an abuse of process and had no reasonable prospect of success because the applicant sought to re-agitate claims already raised and determined adversely to him in ACT proceedings, or compromised by consent orders from which he obtained forensic advantage, and because the Federal Court had no jurisdiction to set aside ACAT orders made in the exercise of Territory powers. The constitutional argument was bound to fail because the Australian Capital Territory is not a State for s 75(iv) of the Constitution, ss 3A and 78AA of the Judiciary Act did not alter that conclusion, and ACAT was not exercising federal jurisdiction or Commonwealth judicial power.

Court Disposition

Leave to amend the statement of claim refused; proceeding dismissed as an abuse of process; applicant ordered to pay the first respondent's costs on an indemnity basis.

Orders

  • ['Leave to amend the statement of claim is refused.' 'The proceeding be dismissed.' "The applicant pay the first respondent's costs of the proceeding on an indemnity basis."]