De Pardo v Legal Practitioners Complaints Committee
[2000] FCA 335(2000) 97 FCR 575
(2000) 170 ALR 709
(Decision by: WHITLAM J)
NINO ANTHONY DE PARDO
v LEGAL PRACTITIONERS COMPLAINTS COMMITTEE, LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL
Subject References:
CONSTITUTIONAL LAW
inconsistency
State law regulating legal practitioners
Tribunal established under State law to inquire into allegations of unprofessional conduct
complaint of gross overcharging by counsel in proceedings in State court exercising federal jurisdiction
whether Family Law Act 1975 and Judiciary Act 1903 cover the field excluding application of State law relating to unprofessional conduct
whether State disciplinary authority purporting to exercise federal judicial power.
LEGAL PRACTITIONERS
practitioner admitted by Supreme Court of a State under State legislation
disciplinary proceedings by State Tribunal in respect of conduct in practice of law in State court exercising federal jurisdiction
application by practitioner to restrain proceedings
nature of proceedings undertaken by State Tribunal
gross overcharging amounting to unprofessional conduct
nature of inquiry to determine unprofessional conduct
whether inquiry involves assessment of taxed costs
whether inconsistence with provisions of federal law relating to taxation of costs in federal proceedings
whether impermissible exercise of federal judicial power.
Legislative References:
Legal Practitioners Act 1893 (WA) - s 22(1); s 3. S 28C(1); s 28D; s 29A; s 65
Family Law Act 1975 (Cth) - s 47; s 122; s 123(g); s 4(1)
Judiciary Act 1903 (Cth) - section 1
Family Court Act 1975 (WA) - the Act
Family Court Act 1997 - s 27; s 88A(1)(h)
Case References:
R v Licensing Court; Ex parte Daniell - (1920) 28 CLR 23 referred to
Clyde Engineering Co Ltd v Cowburn - (1926) 37 CLR 466 referred to
Ex parte McLean - (1930) 43 CLR 472 applied
Allinson v General Council of Medical Education and Registration - [1894] 1 QB 750 discussed
In re: A Solicitor Ex parte The Law Society - [1912] 1 KB 302 discussed
Re R - A practitioner of the Supreme Court - [1927] SASR 58 approved
Re: A Practitioner of the Supreme Court - [1937] SASR 316 cited
Re Veron Ex parte Law Society of New South Wales - (1966) 84 WN (Pt 1) (NSW) 136 applied
In the Matter of a Practitioner - (1975) 12 SASR 166 cited
Re: A Practitioner - (unrep SCWA Library No 4989, 18/7/1983) discussed
Kyle v Legal Practitioners Committee - (1999) 21 WAR 56 discussed
Law Society of New South Wales v Foreman - (1994) 34 NSWLR 408 applied
In Re Davis - (1947) 75 CLR 409 applied
Clyne v New South Wales Bar Association - (1960) 104 CLR 186 cited
D'Alessandro v Legal Practitioners Complaints Committee - (1995) 15 WAR 198 discussed
Silver v Consumer Claims Tribunal - (1979) 36 FLR 281 cited
Baker-Johnson v Dregmans - (1996) 20 Fam LR 306 cited
Ffrost v Stevenson - (1937) 58 CLR 528 cited
Minister of State for the Army v Parbury Henty & Co Pty Ltd - (1945) 70 CLR 459 cited
Felton v Mulligan - (1971) 124 CLR 367 cited
Kable v Director of Public Prosecutions - (1996) 189 CLR 51 cited
Little v Registrar of the High Court - (1991) 29 FCR 544 applied
Yamaji v Westpac Banking Corporation (No 1) - (1993) 42 FCR 431 cited
Caboolture Park Shopping Centre Pty Ltd (In Liq) v White Industries (Qld) Pty Ltd - (1993) 45 FCR 224 cited
Re Colina; Ex parte Torney - (1999) 166 ALR 545 cited
Porter v R; Ex parte Yee - (1926) 37 CLR 432 cited
R v Commonwealth Court of Conciliation and Arbitration Ex parte Barrett - (1945) 70 CLR 141 applied
Moorgate Tobacco Co Ltd v Philip Morris Limited - (1960) 145 CLR 457 applied
Miller v Miller - (1978) 53 ALJR 59 referred to
Judgment date: 23 MARCH 2000
Perth
Decision by:
WHITLAM J
WHITLAM J :
60 I have had the advantage of reading in draft the reasons for judgment of French J and Carr J. I agree that, for the reasons each of them gives, the appeal should be dismissed with costs. In particular, I would emphasize what French J says under the heading "Judicial Power". I also do not think it is necessary in the present case to determine whether the Tribunal is exercising a judicial function under State law.
61 Like Carr J, however, I entertain a reservation about the potential for a "textual collision", were an order made under s 29A(3)(f)(iii) of the Legal Practitioners Act for a barrister to refund fees paid by an instructing solicitor for work done for a mutual client in proceedings under the Family Law Act . One can also imagine many questions about the reach of the Legal Practitioners Act in respect of practitioners not admitted in Western Australia that must remain for another day.