FEDERAL COURT OF AUSTRALIA

DE PARDO v LEGAL PRACTITIONERS COMPLAINTS COMMITTEE

[2000] FCA 335

SUMMARY 

            The following is a summary of the judgments of the Full Court of the Federal Court in the case of De Pardo v Legal Practitioners Disciplinary Tribunal.  It does not form part of the Reasons for Judgment which must be derived from reading the judgments themselves.

            In this case a Western Australian barrister was instructed by a solicitor to represent a client in the Family Court of Western Australia which exercises its jurisdiction under Federal and State law.  The case settled and the barrister sent the solicitor a bill.  The solicitor complained to the Legal Practitioners Complaints Committee that the bill was so excessive as to amount to unprofessional conduct.  The Committee referred the complaint to the Legal Practitioners Disciplinary Tribunal, which is set up under the Legal Practitioners Act 1893, a law of the State of Western Australia.

            The barrister took out an application in this Court and argued before Justice Lee that the Tribunal, as a body set up under State law, had no power to inquire into a complaint of gross overcharging in proceedings under the federal Family Law Act.  He argued that:

1.         The federal Family Law Act provides complete coverage on issues about costs charged by barristers and solicitors in family law proceedings and so displaces the State law for the disciplining of practitioners in that regard.

2.         The Tribunal’s inquiry would involve it acting as a court purporting to exercise federal jurisdiction which it is not authorised to do under the Constitution.

            Justice Lee dismissed the barrister’s application.  The barrister appealed to the Full  Court and the Full Court has today dismissed the appeal. Justices French and Carr wrote separate judgments with which Justice Whitlam agreed.

            In dismissing the appeal the Court pointed out that the function of the Tribunal in deciding whether there has been unprofessional conduct by gross overcharging is quite different from the function of the Family Court in deciding what is the charge that can properly be made between barristers and solicitors and solicitors and their clients in family law cases.  Also the ability of a lawyer to practise in a federal court ultimately depends upon the lawyer being qualified to practise under State law and that is a matter for which State law and the State Supreme Courts and tribunals set up under the State law have traditionally taken responsibility.  There is therefore no inconsistency between the State law regulating the conduct of practitioners admitted in Western Australia and the federal Family Law Act.

            The Full Court also held that the Tribunal was not exercising any federal jurisdiction in inquiring into the complaint and so no question could arise of it exercising federal judicial power contrary to the Constitution.

Perth, 23 March 2000