(n) Appeals

Legal Profession Act 2004, s 729A Appeals against orders and decisions of Tribunal

• An order or other decision made by the Tribunal under this Act may be appealed to the Supreme Court by a party to the proceedings in which the order or decision was made.
• The appeal is to be:
o by way of rehearing, and
o not by way of a new hearing (a de novo hearing).
• Despite subsection (1), an appeal does not lie to the Supreme Court under this section against any of the following decisions of the Tribunal except by leave of the Supreme Court:
o an interlocutory decision,
o a decision made with the consent of the parties,
o a decision as to costs.
• No appeals lie under Part 1 or 1A of Chapter 7 of the Administrative Decisions Tribunal Act 1997 to an Appeal Panel against an order or other decision of the Tribunal under this Act.
• Subsection (1) includes original decisions made by the Tribunal and decisions made by the Tribunal in the review of reviewable decisions, but does not include:
o decisions of the Tribunal under section 385 (2), or
o decisions of the Tribunal of a class prescribed by the regulations.

(o) Obligations of practitioners to assist enquiry - candour

Re Veron: ex parte Law Society of New South Wales (1966) 84 WN (Pt 2) (NSW) 136 at 141-142

The proposition that party having carriage of disciplinary proceedings bears the onus of proof (Re Evatt) does not always sit comfortably with judicial pronouncements to the effect that a legal practitioner the subject of disciplinary proceedings has a professional obligation to assist the Court or Tribunal hearing the proceedings in the conduct of its investigations

Malfanti LPDR 4 of 1993

Whatever its foundations, the duty to assist the conduct of disciplinary proceedings does not extend to an obligation to give evidence on oath in answer to a charge of misconduct in respect of which no prima facie case has been established

New South Wales Bar Association v Liversey [1982] 2 NSWLR 237
The lawyer needs to be honest and frank. There also needs to be cooperation and candour on the part of the lawyer who is being investigated

O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at 230-231
In this context care needs to be taken to distinguish between cases in which the evidence of a practitioner is not accepted and those in which there is an affirmative finding that he or she has deliberately lied or sought to mislead the Tribunal of fact.

Where a legal or medical practitioner gives a false or misleading account concerning his or her conduct to a disciplinary investigatory body, such behaviour may itself constitute professional misconduct

Smith v New South Wales Bar Association (No 2) (1992) 66 ALJR 605
A finding that the practitioner has deliberately given false evidence to a disciplinary tribunal must be based upon something more than a rejection of the practitioner's evidence.

Allowance must be made for the possibility that the evidence was not deliberately false but rather, for example, the product of an honest difference of recollection, or opinion, or the witness's failure to appreciate the significance of questions put to him or her for response.