FEDERAL COURT OF AUSTRALIA

Davey v Council of the Law Society of the ACT [2019] FCA 263

ORDERS

THE COURT ORDERS THAT:

1.    Any provision of the Federal Court Rules 2011 (Cth) as would prevent the Prospective Appellant (named as the Appellant) applying orally for an extension of time to seek leave to appeal the decision of the primary judge in Practitioner D3 v Council of the Law Society of the ACT [2018] FCA 2080 be dispensed with.

2.    The application be dismissed.

3.    The Prospective Appellant pay the First Respondent’s and the Third Respondent’s (named as an Intervener) costs as assessed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KERR J:

1    On 21 December 2018 O’Callaghan J (the primary judge) made orders and published reasons summarily dismissing proceedings brought by Mr Davey (then identified as “Practitioner D3”) as an abuse of process: Practitioner D3 v Council of the Law Society of the ACT [2018] FCA 2080.

2    In those proceedings Mr Davey inter alia had sought a declaration that orders that had been made by consent by the ACT Civil and Administrative Tribunal (ACAT) (dated 19 July 2018) pursuant to the ACT Civil and Administrative Tribunal Act 2008 (ACT) recommending his name be removed from the Roll of Legal Practitioners in the Australian Capital Territory, Victoria and South Australia were invalid.

3    On 10 January 2019, Mr Davey filed, or purported to file, a Notice of Appeal from that judgment.

4    On 25 January 2019 the Attorney-General for the Australian Capital Territory, who had been an intervener in the proceedings before the primary judge (the Third Respondent) objected to the competency of Mr Davey’s appeal on the grounds that the judgment the subject of the Notice of Appeal was an interlocutory judgment for which leave to appeal was required, and that such leave had not been given.

5    On 31 January 2019 Mr Davey filed, or purported to file, an application for leave to appeal.

6    The Chief Justice of this Court allocated this matter to me as a single judge exercising the appellate jurisdiction of the Court to determine the competency of the appeal and whether leave was required, and if so, whether leave should be granted.

7    There is a preliminary issue. If leave to appeal is required, Mr Davey concedes that his application dated 31 January 2019 was filed out of time. Its consideration would require an extension of time. No application for an extension of time was filed prior to the hearing, however such an application was made orally when the parties appeared before me today to make submissions on the issues in contention.

The facts

8    Save in one regard, none of the grounds or proposed grounds of appeal relied upon by Mr Davey put in issue the correctness of the outline of the history of the matter recorded by the primary judge in his reasons. The sole respect in which the grounds raise a factual question relates to Mr Davey’s contention that the Council of the Law Society of the ACT (the Law Society) made no lawful decision to authorise the “litigation” against him after 16 December 2013, and that the primary judge had erred in dismissing his proceeding without permitting that question to be tested.

9    I therefore adopt his Honour’s summary of the facts (and findings as incorporated) as replicated below:

18    The applicant is a legal practitioner admitted to practise in the ACT, South Australia and Victoria. In late 2008, following receipt of a complaint, the Law Society Council commenced an investigation into his conduct. In 2013, the Law Society Council commenced disciplinary proceedings against him.

19    In the years 2013 through 2018, the applicant brought a number of applications in and relating to those disciplinary proceedings. Those proceedings have been heard and determined by the ACAT in various levels of the judicial hierarchy in the Australian Capital Territory. I do not propose to rehearse all of them. The relevant parts of them are described below.

20    On 8 February 2015, the applicant commenced a proceeding in the Supreme Court of the Australian Capital Territory seeking orders that the disciplinary proceedings then pending before the ACAT be permanently stayed on the basis that they were an abuse of process, among other things.

 21    The Law Society Council then sought to have that application struck out.

22    That application was heard and determined by Burns J: see Practitioner D3 v ACT Civil and Administrative Tribunal [2015] ACTSC 170 and Practitioner D3 v ACT Civil and Administrative Tribunal (2016) 308 FLR 132; [2016] ACTSC 61. The effect of those two decisions was that the Supreme Court of the Australian Capital Territory rejected the applicant’s case that the disciplinary proceedings against him in the ACAT were time-barred and dismissed his application to stay the disciplinary proceedings. That is the identical issue that the applicant now seeks to agitate in this proceeding: see [12(a)] above.

23    On 3 February 2017, the applicant brought an application in the ACAT which again sought the dismissal of the disciplinary proceedings. In a decision made on 7 February 2017, the ACAT found in favour of the applicant’s claim that the LPA 2006 did not apply to conduct the subject of the disciplinary proceedings which occurred prior to the commencement of that Act.

24    The Law Society Council appealed to the Supreme Court of the Australian Capital Territory. That application was heard by Penfold J and, on 6 March 2018, her Honour ruled in favour of the Law Society Council and overturned the decision of the ACAT which had held that the LPA did not apply to pre-2006 conduct: see Council of the Law Society of the ACT v Legal Practitioner D3 (2018) 331 FLR 132; [2018] ACTSC 45.

25    The grounds of misconduct that the Law Society Council sought to rely on before the ACAT were as follows (see Council of the Law Society of the ACT v Legal Practitioner D3 (2018) 331 FLR 132; [2018] ACTSC 45 at [9]):

(a)    fraud on the Commissioner for ACT Revenue (the Commissioner) relating to [the applicant’s] application for, and ultimately receipt of, a First Home Owners Grant (FHOG) (Ground 1);

(b)    breach by [the applicant] of the Legal Profession (Solicitors) Rules 2007 (ACT) and of an undertaking to the Council, by [the applicant’s] failure to advise the Council that Supreme Court proceedings relating to the FHOG application had been re-listed or finalised (Ground 2); and

(c)    breach by [the applicant] of r 39.1 of the Legal Profession (Solicitors) Rules by making false representations to the Council and attempting to mislead the Council about the outcome of the Supreme Court proceedings related to the FHOG application (Ground 3).

26    On 14 March 2018 her Honour granted relief which included the following:

(1)    The court declares that [ACAT] has jurisdiction under the Legal Profession Act 2006 (ACT) to hear and determine the plaintiff’s application for disciplinary action, including ground 1 in that application;

(2)    The Court makes an order in the nature of, and to the same effect as, a writ of mandamus pursuant to s 34B(1) of the Supreme Court Act 1933 (ACT), directing the second defendant to deal according to law that the plaintiff’s application for disciplinary action, including ground 1.

27    It can immediately be observed that the relief that the applicant seeks in his proposed amended statement of claim is, in significant part, the inverse of the relief granted by Penfold J on 14 March 2018, namely:

(1)    a declaration that the orders of ACAT dated 19 July 2018 were made “pursuant to an invalid exercise of the Judicial Power of the Commonwealth”;

(2)     a declaration that the originating application filed by the Law Society Council in ACAT was invalid;

  (3)    writs “by way of certiorari and prohibition issue against” the Law Society Council and ACAT quashing the orders made by ACAT on 19 July 2018.

28    The applicant then filed a notice of appeal in respect of the relief granted by Penfold J.

 29    The disciplinary proceedings then returned to ACAT for determination.

30    On 19 July 2018, ACAT made orders by consent that determined the disciplinary proceedings.

31    The orders to which the applicant consented in the ACAT are lengthy, but because they contain critical admissions made by the applicant about his dishonesty, it is necessary to set them out:

CONSENT DECISION PURSUANT TO SECTION 55 OF THE ACT CIVIL AND ADMINISTRATIVE TRIBUNAL 2008 (ACT)

The parties have reached an agreement as to the terms of a decision of the Tribunal that is acceptable to them;

The terms of the agreement have been reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal;

The Tribunal is satisfied that a decision consistent with those terms would be within the powers of the Tribunal;

…By consent, the Tribunal makes orders in the terms of the agreement signed by the parties and annexed hereto.

…

By consent, pursuant to s 55(1) of the ACT Civil and Administrative Act 2008 (ACT) …the Tribunal, being satisfied that the below orders are appropriate for the Tribunal to make and within its powers:

1.    Finds that it is satisfied that the respondent is guilty of professional misconduct in each of the respects set out in the admissions and further particulars signed by the respondent, copies of which are attached hereto (exhibits 1 & 2).

2.    Recommends that the name of the respondent be removed from the Roll of Legal Practitioners in:

a. the Australian capital Territory …

b. South Australia …

c. Victoria …

3.     Recommends, pursuant to s 433(1) of the LPA, that the respondent pay the applicant’s costs of the proceedings as agreed or assessed.

4.     Orders that the further application for disciplinary action (corrected) filed by the applicant be otherwise dismissed.

5.     Grants the parties liberty to apply, in the event that costs are not agreed and it becomes necessary to seek further orders as to the means by which the costs are to be assessed.

That agreement was signed by the solicitor for the Council of the Law Society and by counsel for the applicant in this proceeding.

32    The exhibits particularise the dishonesty which the applicant agreed constituted professional misconduct which warranted his name being removed from the relevant rolls of legal practitioners. The acts of dishonesty, which include acts that may properly be characterised as perjury and suborning perjury, arose out of the applicant’s conduct before proceedings in the Administrative Appeals Tribunal in which the question arose whether the applicant had improperly received and retained payments under the first home buyer’s scheme.

10    In the proceedings before him the primary judge recorded at [4] the submission made by counsel for the Law Society that “(n)either the Court nor the Law Society should be vexed with a re-litigation of these questions, which would be doomed to fail on a number of levels, including both res judicata and issue estoppel, and abuse of process. These proceedings are a paradigm case for the exercise of the Court’s power of summary dismissal.”

His Honour’s reasoning

11    His Honour introduced his reasons with the following remarks at [5]:

… [T]he Court’s “exercise of powers to summarily terminate proceedings must always be attended with caution”: Spencer v Commonwealth (2010) 241 CLR 118, 131 at [24] per French CJ and Gummow J. But in this case, there is not the remotest prospect that the proceeding could succeed. It is as obvious a case of abuse of process that one is likely to encounter.

12    At [7]-[8] his Honour set out the principles applying to abuse of process as follows:

7    Abuse of process is “insusceptible of a formulation which comprises closed categories”: Tomlinson v Ramsey Food Processing Pty Ltd (Tomlinson) (2015) 256 CLR 507, 518 at [25]. It can arise in any circumstances in which “the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute”: Tomlinson at [25].

8    Abuse of process is inherently broader and more flexible than estoppel. That is, “… making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel”: Tomlinson at [26].

13    Having referred at [26] to the conclusions of Penfold J, his Honour observed that the relief sought by the then applicant in his proposed amended statement of claim was, in significant part, the inverse of the relief granted by Penfold J on 14 March 2018.

14    His Honour concluded at [37] as follows:

    Having consented to the orders made by ACAT on 19 July 2018, and having done so in circumstances where the decision of Penfold J had declared that the ACAT had jurisdiction in respect of the disciplinary proceedings brought against the applicant, because claims in this proceeding have the ultimate aim of securing relief directly contrary to each the orders granted by her Honour, each of the claims that the applicant now seeks to re-agitate in his proposed amended statement of claim is an abuse of process. For that reason alone I would refuse leave to amend the statement of claim and dismiss the proceeding.

15    His Honour accordingly disposed of the proceeding before him on the basis set out at [49].

The grounds or proposed grounds of appeal

16    Mr Davey advances identical grounds and proposed grounds in his notice of appeal and application for leave to appeal respectively. They are as follows:

1.    His Honour erred:

a.    In finding that the Federal Court had no Jurisdiction to hear and determine the Application (as may have been amended).

b.    Incorrectly applying the test in Spencer -v- The Commonwealth [2010] HCA 28 in the summary dismissal of the Application to the facts of this case.

c.    Failing to take into consideration the principles in Re Wakim, Ex Part McNally & Anors. [1997] HCA 27 with regards to the previous litigation in the Australian Capital Territory.

d.    Failing to take into consideration the Affidavit of Berth Evan Franklin dated 10th December 2018 and the prima facie evidence that the Council of the ACT Law Society has made no decision authorising the litigation in the Australian Capital Territory after the 16th December 2013 at 5.30pm. ("The Challenge to Retainer argument") and in failing to do so, did not take into consideration the principles in Hawksford -v- Hawsford (2005) 191 FLR 173, per Campbell, J. at [33] to [55] and Wood -v- Inglis [2008 ] NSWSC 1147 at [20] per Barrett, J.

e.    Denying the Appellant procedural fairness in refusing to permit him to call on 13th December 2018 (hearing date) for the documents from the First Respondent evidencing the decision of the Council after the 16th December 2013 and after the issue of two notices to produce in the 8th October 2018 and 11th December 2018 for same.

f.    Refusing leave to Amend the Originating process dated 2nd August 218.

A jurisdictional side wind

17    Ground 1 and Proposed Ground 1 contend error on the basis that the primary judge erred in finding that the Federal Court had no jurisdiction to hear and determine his application.

18    It must be acknowledged that his Honour did record what appears to be conclusions regarding the want of jurisdiction in the Federal Court to set aside an order made by ACAT: see at [39]-[43]. However, with respect, those remarks necessarily were obiter. That is because his Honour’s observations were preceded by his having concluded (at [37]) that each of the claims Mr Davey sought to re-agitate in the Federal Court involved an abuse of process and, “for that reason alone” the primary judge would refuse leave to amend the statement of claim and dismiss the proceedings. It was exclusively on that basis that the Court’s orders were made: see at [5]-[6] and [49].

19    Dismissing an application on the basis that it is an abuse of process is an exercise of the Court’s jurisdiction. With no disrespect to his Honour there is inconsistency between such exercise of judicial power and obiter reasoning that the Federal Court had no jurisdiction to hear and determine Mr Davey’s application. If a court lacks jurisdiction it has no authority to determine the merits or otherwise of a matter. In my view the primary judge undoubtedly had regard to the strength and nature of the case pleaded before him, as his conclusion that it “was as obvious a case of abuse of process as one is likely to encounter” makes clear.

20    I note the contention advanced in Mr Davey’s written submissions contend that the question of jurisdiction, whilst addressed by his Honour, had not been agitated by any of the parties in the proceeding before him. The Respondents did not submit otherwise.

21    In oral submissions all parties shared a common position that his Honour’s observations were obiter.

22    It is thus unnecessary in these proceedings to determine the correctness or otherwise of his Honour’s observations at [39]-[43]. I note however that counsel for the Third Respondent, Mr Garrisson SC submitted there were strong arguments to suggest the position was other than as reflected in his Honour’s obiter remarks, citing Crosby v Kelly [2012] FCAFC 96; 203 FCR 451 per Robertson J at [33]-[45], Bennett and Perram JJ concurring. See also Rana v Google Inc [2017] FCAFC 156; 254 FCR 1 per Allsop CJ, Besanko and White JJ at [24]. I agree with that submission.

23    I will proceed on the basis that the primary judge’s decision was made in respect of a matter within the jurisdiction of the Federal Court and that his Honour’s observations regarding jurisdiction were obiter. However, lest that be an unwarranted assumption, I address the alternative hypothesis below as an aspect of my consideration as to whether the primary judge’s decision was interlocutory or final.

Was the summary dismissal of Mr Davey’s application an interlocutory judgment?

24    Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) prohibits an appeal from an interlocutory judgement of a single judge of this Court except by leave. As noted above, the Third Respondent has submitted that the decision of the primary judge was an interlocutory judgment.

25    Mr Davey’s written submissions at [9] are as follows:

The Applicant concedes that an Application to file out of time is necessary if leave is required but contends that because the decision was determinative of the proceeding, that the matter was decision was not “interlocutory” and accordingly the [sic] pursuant to the authority of the Full Court in Décor Corp Pty Ltd -v- Dart Industries, leave ought to not be required.

(Footnote omitted.)

26    The case referred to by Mr Davey is not authority for the proposition cited. Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; 33 FCR 397 (Décor Corporation) is authority for the proposition that the test for a grant of leave to appeal involves a consideration of two matters. Those two matters are whether sufficient doubt attends the decision to warrant a grant of leave and whether substantial injustice will be caused to the unsuccessful party should leave be refused and the decision be wrong. It is not authority for the proposition that leave is not required if a decision is practically final.

27    A lay observer might be surprised that a decision dismissing a substantive proceeding on a summary basis can properly be characterised as interlocutory. The distinction between a proceeding which as a matter of law finally determines the substantive rights of a party (from which an appeal may be brought as of right), and one which brings an end to a case because it has been summarily dismissed is not immediately intuitive. However that is the distinction required: see for example Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; 54 ALR 767. As Pagone J observed (albeit with specific reference to the powers of the Court pursuant to s 24(1A) of the FCA Act in Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 507 at [4]:

It may seem curious to a litigant who is not trained in law to describe as “interlocutory” a decision which effectively brings an end to a proceeding, but such a decision is interlocutory, and not final, within the meaning of s 24(1A), because the judgment from which the appeal is sought was not made on the merits of the case … [it] did not decide the merits of the underlying dispute

28    However Mr Davey cannot be described as a litigant untrained in the law. He could be expected to know that this Court is entitled to rely upon settled authority that a decision summarily dismissing a proceeding as an abuse of process is an interlocutory decision notwithstanding its practical effect: see Re Luck [2003] HCA 70; 78 ALJR 177 at [8]-[9] (Luck).

29    Apposite to this case, the reasoning of McHugh ACJ, Gummow and Haydon JJ in Luck establishes that an order dismissing an action because it has been concluded to be frivolous, vexatious or an abuse of process is interlocutory notwithstanding the practical finality it might be asserted to have achieved. That is because dismissal of a matter as an abuse of process does not, in the legal sense, determine the rights of the parties: see Wilson v Official Trustee in Bankruptcy [2000] FCA 304 and Kowalski v Complete Exhaust Specialists Marion [2010] FCA 1363 at [10]. Such a decision is interlocutory.

30    I have earlier assumed in Mr Davey’s favour that the further remarks of primary judge with respect to the want of this Court’s jurisdiction were necessarily obiter, but against the contingency that I would thereby fall into error I would hold that an order dismissing an application for want of jurisdiction is also interlocutory, subject to the possible qualification expressed by Perram J in Lui v Secretary, Department of Education, Employment and Workplace Relations [2012] FCA 216 regarding circumstances which might arise regarding a finding in respect to a jurisdictional fact, which is not material in this instance: see SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75; 168 FCR 410.

31    I therefore proceed on the basis that the primary judge’s judgment, whatever its foundation, was an interlocutory judgment within the meaning of s 24(1A) of the FCA Act.

Is an extension of time required for Mr Davey’s application for leave to appeal?

32    This question can be resolved without detailed consideration. At [7] of Mr Davey’s written submissions he concedes that the time limit for the filing of an application for leave to appeal an interlocutory decision is 14 days. He does not contest that his application was made out of time.

33    During the proceeding before me Mr Davey applied orally for an extension of time. In the circumstances that he had purported to file a Notice of Appeal setting out identical grounds he wishes to rely upon in his leave application. Notwithstanding the opposition of the Third Respondent, I would grant him leave to rely on his oral application despite his failure to comply with the provisions of r 35.14 of the Federal Court Rules 2011 (Cth) (the Rules) governing how such applications should be made.

The relevant principles applying to an application for extension of time and leave to appeal

34    It is well settled that in considering whether to grant an extension of time in which to appeal pursuant to r 36.03 of the Rules, the Court will have regard to the length of, and explanation for the delay; any prejudice that the respondent/s may suffer, and the prospects of success if the extension were granted: see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 per Wilcox J at 348-349 and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 per Flick, Griffiths and Perry JJ at [6].

35    Analogous considerations apply to an application to apply for an extension of leave to appeal out of time. In respect of the prospects of success there is necessarily overlap between the issues a court must consider having regard to the test for a grant of leave and the test for granting an extension of time.

36    The test for a grant of leave to appeal is also well-established and involves a consideration of two matters. They are whether sufficient doubt attends the impugned decision to warrant a grant of leave, and whether substantial injustice will be caused to the unsuccessful party should leave be refused and the decision be wrong: see Décor Corporation.

The application for an extension of time

Reasons for the delay

37    Mr Davey has not filed any affidavit to explain his delay. However I am prepared to infer on the basis of the materials before me and his oral submissions that his delay arose by reason of his incorrect understanding that the primary judge’s judgment was not interlocutory and that he was entitled to appeal as of right, which he had done within time. Once alerted by the Third Respondent’s application to dismiss his appeal on the grounds that leave was required to appeal an interlocutory decision (filed on 25 January 2019), he had promptly filed an application for leave to appeal on 31 January 2019.

38    I am satisfied that the delay arose because of Mr Davey’s mistaken understanding of the law. That is neither a good or sufficient reason but in my view, that relatively short delay, whilst a factor against a grant of leave, in isolation, is insufficient to be dispositive of this matter.

Prejudice to the Respondents

39    Mr Garrisson submitted that an extension of time and leave to appeal would delay steps that would otherwise be taken by the First Respondent to give effect to the consent decision of the ACAT. I infer that those steps will not be taken while litigation going to the validity of that decision remains live before a court. I proceed on the basis as stated by the primary judge (at [3]) that Mr Davey’s name has not yet been removed from the roll and he still holds a practicing certificate.

40    In that regard it is appropriate to note the primary judge’s findings at [32] which characterised Mr Davey’s admitted acts of dishonesty as extending to “acts that may properly be characterised as perjury and suborning perjury”. There is no proposed ground of appeal in respect of those findings and Mr Davey did not advance any submission that they were unsound.

41    Because of the nature of the admissions made by Mr Davey in his reaching an agreement in the ACAT consent determination he now seeks to impugn I am satisfied that the First Respondent has a proper interest in the discipline of members of the legal profession. I am satisfied that that interest will be relevantly prejudiced by any decision that further delays placing before the Supreme Court the recommendations of the ACAT.

42     Any other potential prejudice the Respondents might suffer as a party to an appeal would be limited and could be adequately compensated (assuming any appeal commenced by leave was unsuccessful) by an award of costs potentially on an indemnity basis.

The merits of the grounds of the proposed appeal

43    The proposed Grounds of Appeal (as set out above at [16]) are that the primary judge erred as follows:

a.    In finding that the Federal Court had no Jurisdiction to hear and determine the Application (as may have been amended).

b.    Incorrectly applying the test in Spencer -v- The Commonwealth [2010] HCA 28 in the summary dismissal of the Application to the facts of this case.

c.    Failing to take into consideration the principles in Re Wakim, Ex Part McNally & Anors. [1997] HCA 27 with regards to the previous litigation in the Australian Capital Territory.

d.    Failing to take into consideration the Affidavit of Berth Evan Franklin dated 10th December 2018 and the prima facie evidence that the Council of the ACT Law Society has made no decision authorising the litigation in the Australian Capital Territory after the 16th December 2013 at 5.30pm. (“The Challenge to Retainer argument”) and in failing to do so, did not take into consideration the principles in Hawksford -v- Hawsford (2005) 191 FLR 173, per Campbell, J. at [33] to [55] and Wood -v- Inglis [2008 ] NSWSC 1147 at [20] per Barrett, J.

e.    Denying the Appellant procedural fairness in refusing to permit him to call on 13th December 2018 (hearing date) for the documents from the First Respondent evidencing the decision of the Council after the 16th December 2013 and after the issue of two notices to produce in the 8th October 2018 and 11th December 2018 for same.

f.    Refusing leave to Amend the Originating process dated 2nd August 218.

Proposed Ground 1

44    I have concluded that the premise of Ground 1 misapprehends his Honour’s decision because his Honour’s remarks regarding the Federal Court’s want of jurisdiction were relevantly obiter. However, if I am wrong in that regard, for the reasons I have given at [23], [24] and [31], I would not place any weight on Ground 1 as favouring or disfavouring the grant of leave.

45    It is indisputable that the dispositive ground before the primary judge was that the proceedings before him should be summarily terminated as an abuse of process.

46    There would be no utility in granting leave to agitate in an appeal arid arguments as to jurisdiction of the Federal Court (for which an extension of time is required as well as a grant of leave to appeal) if, properly understood, having jurisdiction, his Honour correctly disposed of the matter before him on a summary basis having concluded that “there is not the remotest prospect that the proceeding could succeed”' and that the proceedings were “as obvious a case of abuse of process that one is likely to encounter.”

Proposed Ground 2

47    The primary judge expressly quoted the principle established in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 (Spencer) that the Court’s “exercise of powers to summarily terminate proceedings must always be attended with caution.”

48    However in light of the findings made by his Honour as set out above, no sound basis for the application of the principle in Spencer was further engaged.

49    In that regard, I note his Honour’s findings at [37] and his Honour’s reasoning inter alia at [16] that the attempt to again agitate those claims after having had the opportunity to have raised each of the issues Mr Davey sought to raise in the Federal Court in the ACT Supreme Court, would be an abuse of process.

50    I discern nothing in the primary judge’s analysis and reasoning that would support Mr Davey’s contention that his Honour incorrectly applied the test in Spencer to those circumstances.

51    If it need be said, and subject to my observations below, I am satisfied that his Honour was correct. Permitting Mr Davey to recontest conclusions previously determined by the Supreme Court of the ACT and then resolved by consent after admission of serious misconduct on his part was capable of bringing the administration of justice into disrepute. Proposed Ground 2 stands in disconnect from the findings made by his Honour. It is without merit.

Proposed Ground 3

52    A judge of this Court is obliged not only to give effect to the ratio of any decision of the High Court of Australia, but also to clear statements of principle expressed in obiter. Mr Davey submits that this Court should therefore give effect to the reasoning of McHugh J in Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511 (Re Wakim) at [79] that “no doctrine of res judicata or issue estoppel can prevail against the Constitution.” Mr Davey submits what was said by McHugh J in that passage and the observations of Callinan J at [291] require that, whenever the jurisdiction of this Court is invoked pursuant to s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act), such common law doctrines must yield in favour of the Court’s constitutional duty to hold administrative bodies exercising coercive powers to the lawful limits of their jurisdiction. I take the submission to be that his Honour therefore erred in concluding that it was an abuse of process on Mr Davey’s part to seek to re-agitate the decision of Penfold J in the Supreme Court of the ACT in which her Honour had concluded that the ACAT had had jurisdiction in respect of the disciplinary proceedings brought against Mr Davey.

53    I reject that submission. It reads too much into observations made in respect of substantive constitutional litigation, rather than the kind of litigation which was before the primary judge. In that regard, I proceed on the basis that the only contended for constitutional issue raised before his Honour was entirely implausible and without merit. That issue was that, having regard to the High Court’s decision in Burns v Corbett [2018] HCA 15; 92 ALJR 423, the ACAT had impermissibly exercised the judicial authority of the Commonwealth. That proposition required Mr Davey to make good the contention that the ACT was relevantly a State. The primary judge was correct to conclude that that constitutional point was bound to fail (at [11] and [17]). There is no draft ground of appeal contending otherwise. In oral submissions Mr Davey properly abandoned any reliance upon that proposition.

54    Moreover even with respect to substantive constitutional litigation I accept the submission made by Mr Garrisson that the plurality in Re Wakim (Gummow and Hayne JJ) expressly declined to express any view as to whether doctrines of issue estoppel or res judicata should be given some different and less stringent application in constitutional litigation (at [156]).

55    For the above reasons I am unpersuaded that any aspect of the reasoning in Re Wakim requires this Court, when exercising its jurisdiction pursuant to s 39B of the Judiciary Act, to disregard the principles of finality which underlie the common law doctrines of res judicata and issue estoppel if re-agitation of an issue determined the Supreme Court of the Australian Capital Territory would otherwise amount to an abuse of process. If it needs to be said, that applies equally to an Anshun estoppel which stands in the way of any party seeking to rely on grounds which could reasonably be expected to have been raised, but were not, in another judicial proceeding.

56    Proposed Ground 3 is without merit.

Proposed Grounds 4-6

57    Proposed Grounds 4-6 all go to specific rulings precluding Mr Davey taking any further steps in his proceeding. If the primary judge was correct that the proceeding filed in this Court, taken as a whole, was an abuse of process liable to be summarily dismissed then the threshold requiring his Honour to consider those issues was never crossed.

58    I accept that the claims detailed in a draft amended Statement of Claim that was before the primary judge (the refusal to accept which is the subject of Proposed Ground 6) reveal that Mr Davey was seeking to litigate a point as to the jurisdiction of the ACAT to deal with his disciplinary matter which had not been the subject of determination by Penfold J. That is, that the Council of the ACT Law Society had not, as Mr Davey contends the law to require, made a decision after the 16 December 2013 to authorise that litigation. In submissions before me I understand the gravamen of that point is that, absent such authorisation, there could be no jurisdiction in ACAT such that the consent determination which was entered into was legally a nullity. Proposed Grounds 4 and 5 go to the primary judge’s refusal to permit Mr Davey to adduce evidence to make good the facts underlying that proposition.

59    Having regard to the principles stated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 I do not need to address the question of whether or not the absence of a decision of the Council of the Law Society of the ACT after 16 December 2013 deprived the ACAT of jurisdiction. The chronology of litigation recited in the primary judge’s reasons and in evidence before me reveals that there were a number of instances in which Mr Davey and the Law Society had contested the jurisdiction of ACAT in the Supreme Court of the Australian Capital Territory. Mr Davey has advanced no reason why the point he now seeks to litigate was not raised in those proceedings. Self-evidently, given the issue relates to things done or not done in 2013 the point could have been taken in those (later) judicial proceedings. Mr Davey was legally represented in those proceedings. There is no explanation as to whether the omission to rely on the point was by reason of forensic choice or otherwise. As noted above, an Anshun estoppel stands in the way of any party seeking to rely on grounds which could reasonably be expected to have been raised, but were not, in another judicial proceeding.

60    I am satisfied that, even assuming there might be hypothetical merit in what Mr Davey advances as his “Challenge to Retainer” argument, an Anshun estoppel would prevent it being further litigated. I am satisfied that, having determined that the proceedings before his Honour were an abuse of process for the reasons he gave, the primary judge did not err in preventing Mr Davey to cross the threshold to re-plead his case to advance arguments which could reasonably be expected to have been raised, but were not, in the earlier litigation conducted in the ACT Supreme Court.

61    On that basis Grounds 4-6 without merit.

62    Having reached that conclusion I am nonetheless obliged to consider the question as to whether, assuming I am in error, leave to appeal should be granted.

63    As referred to above it is settled law that whether leave to appeal should be granted turns on two principal considerations: whether sufficient doubt attends the decision sought to be appealed to warrant a grant of leave; and whether substantial injustice would be caused to the unsuccessful party should leave be refused and the decision be wrong.

64    Having regard to the discussion above at [44]-[61] in respect of Mr Davey’s proposed grounds of appeal I am not satisfied that sufficient doubt attends the primary judge’s decision to warrant a grant of leave.

65    I accept that some injustice will be caused to Mr Davey if leave is refused and the primary judge’s decision is wrong. He will be subject to a recommendation that he be removed from the Roll of Legal Practitioners in the ACT, Victoria and South Australia in consequence of a decision (albeit that he accepts was arrived at with his consent) made by a tribunal lacking jurisdiction in respect of the disciplinary proceedings brought against him.

66    However, having regard to the judgment of Penfold J in Council of the Law Society of the ACT v Legal Practitioner D3 [2018] ACTSC 45; 331 FLR 132 that ACAT had jurisdiction, the nature of the admissions Mr Davey made to bring conclusion to the ACAT proceedings and the foreseeable prospect averted to by the Respondents that, even in the event of a successful appeal, it would remain open to the Law Society to move the Supreme Court of the ACT, in its inherent jurisdiction, to exercise its disciplinary control over an officer of the court, I would regard any injustice capable of being posited as insufficient to outweigh any remote prospect that the decision sought to be appealed was wrong.

Disposition

67    For the reasons set out above I conclude that none of Mr Davey’s proposed grounds of appeal have sufficient prospects of success as would justify granting him an extension of time to seek leave to appeal out of time. The factors of delay and prejudice also balance against the granting of that application orally made. Costs should follow the event. In circumstances whereby at least Proposed Ground 1 was not implausibly advanced (see above at [17]-[23] and [46]), I apprehend no basis for costs to be awarded other than on the ordinary basis. I make the following orders:

(1)    Any provision of the Federal Court Rules 2011 (Cth) as would prevent the Prospective Appellant (named as the Appellant) applying orally for an extension of time to seek leave to appeal the decision of the primary judge in Practitioner D3 v Council of the Law Society of the ACT [2018] FCA 2080 be dispensed with.

(2)    The application be dismissed.

(3)    The Prospective Appellant pay the First Respondent’s and the Third Respondent’s (named as an Intervener) costs as assessed or agreed.

Associate:

Dated:    5 March 2019