Try and try again? Remaking decisions and the doctrine of functus officio

Cain Sibley, Johanna Biddle
22 Nov 2023
2.5 minutes

Don't assume you can remake a decision without investigating the facts and the law.

As a government decision-maker, you should be aware of the doctrine of functus officio and when it will apply to the decision before you. Based on principles of finality, the doctrine of functus officio will generally prevent the re-making of a decision where the power to make that decision has already been spent and cannot be re-exercised.

Now, you might be aware of the doctrine, but not always aware of the actual constraints it imposes, or how it operates. The recent case of Hill v Council of the Law Society of the Australian Capital Territory [2023] ACTSC 282 in the ACT Supreme Court explores those constraints, and the process for determining if the remaking of a decision is available to you.

Two lawyers, two complaints, one transaction: the facts in Hill v ACT Law Society

The ACT Law Society received two complaints in 2019 against Mr Hill and Mr Colquhoun in relation to their conduct while acting in the purported sale of a legal practice.

The Society ultimately dismissed the first complaint in February 2019 without investigation on the basis the complaint lacked substance. However, following the second complaint and an investigation, it applied for disciplinary action against both Mr Hill and Mr Colquhoun in the ACT Civil and Administrative Appeals Tribunal (ACAT), which then referred the matter to the ACT Supreme Court. Proceedings against Mr Hill were eventually discontinued.

The question for the Court was: did the dismissal of the first complaint mean the Society had already expended its power to make a disciplinary decision under the Legal Profession Act 2006 (ACT) and so was prevented from effectively re-exercising that power in relation to the second complaint?

Exploring functus officio: look at the statutory power, look at the issues

In reliance on the doctrine of functus officio, Mr Colquhoun argued that:

  • the first and second complaint arose out of the same or substantially the same facts; and
  • the summary dismissal of the first complaint was binding and conclusive such that the Society was precluded from dealing with the second complaint.

In finding against Mr Colquhoun, the Court considered whether the second complaint raised the same or substantially the same facts as the first. It held it did not on the basis that:

  • the complaints alleged different misconduct (i.e. witnessing a false affidavit in the first complaint, versus involvement in issuing a statutory demand for an improper purpose in the second);
  • the allegations set out in the second complaint were given substance, which was lacking from the first complaint, by the comments of the Federal Court in different proceedings relating to the sale. In those proceedings, the Court made a finding relating to the statutory demand which reflected adversely on Mr Colquhoun's professional conduct, even though he was not a party; and
  • the second complaint detailed conduct which occurred after the first complaint had already been dismissed. The fact the conduct continued beyond the point in time at which the first complaint had been determined necessarily meant the second complaint was not the same or substantially the same as the first.

The second question for the Court related to the Society's powers under the Legal Profession Act 2006 (ACT). The Court held that, on the proper construction of the Act (which includes taking into account its purposes), the dismissal of the first complaint without investigation did not prevent investigation of the same or similar matters raised in the second complaint which was supported by fresh evidence. Complaints will only be excluded from the operation of the disciplinary regime set out in the Act in limited or exceptional circumstances.

Key takeaway

So what should you do if you are tempted to re-make a decision?

  • Don't assume you can remake a decision without investigating the facts and the law.
  • What is your decision about? A statutory power may be re-exercised by a decision-maker in relation to the same individual where the decision does not relate to the same or substantially the same facts as the previous decision, or if relevant new facts have emerged.
  • Check the legislation to determine whether, having regard to the construction, purpose and intention of the legislation, a decision may be re-visited or re-considered by the decision-maker.

You can also learn more in our Public Law Essentials on re-making decisions.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.