Step 1: An application is made by a professional body or an individual about the conduct of a practitioner
Step 2: The applicant files an application form, an affidavit and any relevant documents
Step 3: The applicant serves (gives) a copy of the application to the practitioner
Step 4: The practitioner files and serves a reply by the deadline
Step 5: The parties take part in a directions hearing
Step 6: The parties take part in a hearing
Step 7: If the practitioner fails to appear, the hearing may proceed despite his or her absence
Step 8: The Tribunal makes a decision
Step 9: Costs are awarded
Step 10: The practitioner may consider whether they have grounds for appeal
After receiving a complaint about a legal practitioner, the Legal Services Commissioner, the Council of the NSW Bar Association or the Council of the Law Society may apply to the Tribunal for an original decision. The Legal Services Commissioner, the Council of the NSW Bar Association or the Council of the Law Society of NSW can apply to the Tribunal for:
The Council of the NSW Bar Association or of the Law Society of NSW can also apply to the Tribunal for orders:
prohibiting the employment of a lay associate (s 18)
An individual can apply to the Tribunal for:
the approval of a lay associate convicted of a serious offence (s 17(3))
The application form must be accompanied by an affidavit sworn by a competent person on behalf of the applicant. The affidavit must:
As soon as practical after lodging an application, the applicant will serve the legal practitioner with a sealed copy of the application and all affidavits in support.
The NSW Civil and Administrative Tribunal Rules 2014 make provision for substituted service.
The legal practitioner should file and serve a reply in the approved form within 21 days of service.
A directions hearing will be held at least 28 days after an application has been filed.
The applicant, during or before the directions hearing, will file and serve a chronology of the complaint, together with the names of any Council or Conduct Division members who have considered the complaint.
The Tribunal will make any directions for the filing and service of evidence and submissions and for any other directions that are preliminary or orders necessary to make the case ready for hearing.
The parties may agree to a written timetable which they submit to the Tribunal for approval. To be approved, the timetable needs to allow for substantive proceedings to be listed for hearing within six months of the date the original application was filed. The fact that a preferred legal representative is not available for either party, will not generally constitute sufficient reason to schedule a hearing outside the time standards.
The legal practitioner may only present evidence of matters which they included in their reply, unless the Tribunal gives leave for them to present other evidence.
Three members of the Tribunal will hear cases brought by professional bodies. These members will be a senior judicial member, a practitioner member and a lay member; or, two practitioner members and a lay member.
The Divisional Head will decide on the composition of the panel for applications for:
The Tribunal may conduct a hearing of an application despite the failure of the legal practitioner to appear, provided the following matters are proved to the satisfaction of the Tribunal:
The Tribunal can make a number of orders, as specified in the Legal Profession Act 2004.
If, after a hearing, the Tribunal is satisfied that the legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the Tribunal may make such orders as it thinks fit. Orders can be made without a full hearing, if an instrument of consent is filed. The following are examples of some of the orders the Tribunal may make:
the Tribunal also has a limited power to make a compensation order against a practitioner.
For the complete list of possible outcomes in applications for disciplinary findings and or orders, see s 562 of the Legal Profession Act 2004.
Costs awards in cases involving the discipline of legal practitioners are governed by s 566 of the Legal Profession Act 2004. According to the Act:
See s 566 of the Legal Profession Act 2004 for full details.
The NSW Civil and Administrative Tribunal Act 2013 makes provision for the enforcement of costs orders.
Practitioners can appeal to the Supreme Court against orders and decisions of the Tribunal, however leave of the Supreme Court is required to appeal against interlocutory decisions; decisions made with consent; and decisions as to costs.