XYZ v Legal Profession Board of Tasmania

[2014] TASFC 13

Tasmania Full Court

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Interrogate

Catchwords

1. Professions and Trades
2. › Lawyers
3. › Complaints and discipline
4. › Disciplinary proceedings
5. › Powers of disciplinary body after investigation
6. › Decision to apply to Disciplinary Tribunal
7. › Whether decision may be rescinded before application made
8. › Whether Board may re-open investigation
9. › Legal Profession Act 2007 (Tas), s 450(d)
1. Administrative Law
2. › Statutory powers
3. › Power to vary or reverse statutory decisions
4. › Statutory presumption of power to exercise from time to time
5. › Whether contrary legislative intention expressed or implied
6. › Acts Interpretation Act 1931 (Tas), s 20(a)
1. Administrative Law
2. › Finality of administrative decisions
3. › Whether decision of interlocutory or executory nature
4. › Whether principle of finality displaced by statutory power to re-exercise
5. › Distinction between decision to prosecute and actual commencement of proceedings

Quick Take

A decision by the Legal Profession Board under s 450 of the Legal Profession Act 2007 (Tas) to make an application to the Disciplinary Tribunal is executory in nature and may be rescinded before the application is actually filed. The Board retains the power under s 20(a) of the Acts Interpretation Act 1931 (Tas) to vary or reverse such a decision and re-open its investigation. The transition from the investigative to the adjudicative phase occurs upon the actual making of the application, not upon the Board's decision to make one. The question of the Board's powers after an application has been filed remains open.