Wang v Sheehy: Appealing a Decision of the Disciplinary Tribunal

The Full Court of the Supreme Court of Tasmania has interpreted s 484 of the Legal Profession Act 2007 (Tas) to exclude appeals from determinations of the Legal Profession Disciplinary Tribunal under Part 4.5 of the Act to a single judge. This article explores the reasons of the Full Court, tactical considerations when dealing with the re-hearing of a complaint, options for non-merits-based review, and law reform.

On 29 January 2026, the Full Court of the Supreme Court of Tasmania handed down its decision in the long running matter of Wang v Sheehy [1]. The leading judgment of Estcourt J (with whom Wood & Pearce JJ agreed) dismissed the self-represented appellant’s challenge to the earlier decision[2] of Brett J regarding the correct operation of appeal provisions within the Legal Profession Act 2007 (Tas)(the Act).

This decision may impact lawyers working in and advising clients on complaints in Tasmania, as the decision confirms a limitation on the right to appeal from a review decision of the Legal Profession Disciplinary Tribunal (Disciplinary Tribunal).

While such an issue may seem remote to some practitioners, the election whether to review a complaint in the Disciplinary Tribunal or the Supreme Court may have practical consequences.

Matter Background
On 18 January 2022 the appellant made a complaint to the Legal Profession Board of Tasmania (LPBT) about a Tasmanian legal practitioner regarding his representation of the appellant during family law property proceedings.

The LPBT did not summarily dismiss the complaint, however, after investigating the complaint it decided to dismiss the complaint under s 451 of the Act, which provides, amongst other things, that a complaint may be dismissed if, “there is no reasonable likelihood that the practitioner will be found guilty of either unsatisfactory professional conduct or professional misconduct”.

The appellant was apparently dissatisfied with the LPBT’s dismissal determination and made an application to the Disciplinary Tribunal to re-hear and determine her complaint. No issue was taken with the Disciplinary Tribunal’s jurisdiction to deal with a complaint that had been dismissed by the LPBT under s 451.

Section 458(1)(a) of the Act headed “application against determinations” provides that within 21 days after being served with a notice of determination, the complainant or practitioner may, “apply to the Tribunal or Supreme Court to have the matter to which the determination relates determined by the Tribunal or Supreme Court…”.

It was at this juncture that the appellant made the decision to pursue her complaint before the Disciplinary Tribunal and not the Supreme Court. This decision that will be pivotal to the future course of the matter.

On 7 August 2023, the Disciplinary Tribunal also determined that there was no reasonable likelihood that the respondent would be found guilty and dismissed the application.

The appellant then purportedly appealed the determination of the Disciplinary Tribunal to the Supreme Court under s 484 of the Act. The question was whether the legislation vested the Supreme Court with jurisdiction to hear and determine the purported appeal.

The Relevant Legislation
The Supreme Court does not have an inherent or common law jurisdiction to hear appeals. Appeals to the Supreme Court are entirely creatures of statute, where the nature of the appeal is determined by the words of the statute conferring jurisdiction.

For example, in Boland v Boxall [2016] TASSC 30, Blow CJ held that an application under s 458(1) involves an appeal by way of re-hearing where the word “re-hearing” means “…the sort of re-hearing that the Full Court undertaken in an appeal from a decision of a single judge in a civil matter”. Such an appeal is limited to the evidence on the record below with a discretion to admit fresh evidence.

Relevant to the present matter, Brett J said below, “It should be acknowledged at this point that there is no other statutory provision for an appeal against an order of the Tribunal, so this Court’s jurisdiction to entertain this appeal will depend on whether or not it is authorised by s 484”.

Section 484 is found within Part 4.7 of the Act, headed “Proceedings in Disciplinary Tribunal” and reads, “The Board and any party to a complaint who is aggrieved by an order made by the Tribunal under this Part may…appeal against that order to the Supreme Court…” [emphasis added].

However, s 458 is found within Part 4.5 of the Act, which is headed “Complaints”.

There is a distinction between the Disciplinary Tribunal reviewing or re-hearing a complaint that has been determined by the LPBT under Part 4.5 and it hearing and determining a complaint in its original jurisdiction under Part 4.7.

The Decision Below
At [6] of his decision, Brett J observes that in dealing with a matter under Part 4.7, the Disciplinary Tribunal is exercising “original jurisdiction in the determination of the complaint” whereas under s 458 it is exercising a review jurisdiction: Boland v Boxall, Legal Profession Board of Tasmania v Disciplinary Tribunal [2022] TASSC 65 at [68].

His Honour also found that even if the Disciplinary Tribunal had invoked powers pursuant to s 458(5), “it would not convert an order made under that section to one amenable to appeal under s 484”.

Brett J summarised the operation of the two provisions vis-à-vis appeal, “The fact remains that on the plain text of the Act, there is no provision for an appeal to the Supreme Court from a decision of the Tribunal under s 458”.

Relevantly for the tactical decisions that might need to be made in dealing with a complaint, Brett J said, “…the text of [s 458], in particular, the use of the word “or”, requires the complainant or the legal practitioner who is the subject of the complaint, to elect whether the redetermination will be by the Tribunal or the Supreme Court. It is submitted that upon such an election, the right to pursue the other option is extinguished. I accept this submission”.

The Appeal
On appeal, writing the leading judgment, Estcourt J agreed entirely with Brett J’s decision and reasons therefore.

Echoing Brett J below, Estcourt J noted at [14] an important policy consideration for an election to pursue a matter in either the Disciplinary Tribunal or Supreme Court. Reading the word “or” disjunctively in s 458 is essential to avoid the absurd outcome where a determination of the Supreme Court on re-hearing could be supplanted by a subsequent determination of the Tribunal.

The Full Court dismissed the appeal unanimously.

Discussion
Much has been written about various drafting issues with the Act. To appreciate these issues requires consideration of the climate in which the Act was passed, which is beyond the scope of this article. Whether the absence of the right to appeal a determination of the Disciplinary Tribunal under s 458 to the Supreme Court was intentional or a drafting error will likely never be known.

Given that the Act sets up a hierarchical system for the determination of disciplinary matters, it might be argued that a decision to require an election under s 458 and the ensuing finality in respect of Disciplinary Tribunal determinations was intentional to promote finality of less serious disciplinary matters that would naturally find their way to the Disciplinary Tribunal.

Conversely, a provision that forces a party to elect to proceed to the Disciplinary Tribunal or Supreme Court might promote matters being pursued in the Supreme Court out of concern for the lack of Disciplinary Tribunal appeal options. These matters might otherwise have been dealt with more efficiently and with less cost by the Disciplinary Tribunal.

While Wang v Sheehy cements the end of the road for a s 458 merits-based re-hearing at the Disciplinary Tribunal, consideration ought be given to alternative options for error-based review. Other than the possibility of appeal from a single judge to the Full Court pursuant to the Supreme Court Civil Procedure Act 1932 (Tas), there was not any discussion of alternative review options for an aggrieved party.

In EFG v Legal Profession Board of Tasmania [2020] TASSC 26 the applicant commenced proceedings against the LPBT under the Judicial Review Act 2000 (Tas)(JRA) and for an order in the nature of certiorari.

It was not in dispute that a decision by the LPBT, if one was made, would fall within s 4(1) of the JRA, that is, a decision of an administrative character made under an enactment. It was ultimately held by Blow CJ that the LPBT had not made a decision under ss 433, 440, or 428 and the JRA application failed. So too did the certiorari relief.

The fundamental difference between a determination of the Board and the Disciplinary Tribunal is whether a determination of the latter is a decision of an administrative or judicial character.

Whether a determination of the Disciplinary Tribunal is administrative or judicial has not been decided by the Supreme Court in Tasmania, save for the passing comment in Wang v Sheehy that, at least insofar as Part 4.7 of the Act is concerned, the Tribunal has an “original jurisdiction”.

Consideration of whether a statutory Tribunal is acting judicially or administratively is not uncommon in Tasmania, with an unusually large number of decisions relating to the former Anti-Discrimination Tribunal. Most notable is the judgment of Blow J (as he then was) in Kentish Council v Wood (2011) 21 Tas R 59, with whom Evans and Porter JJ agreed.

Having first summarised the law regarding the characterisation of tribunal determinations as administrative or judicial, His Honour said at [20]

If one looks at what, in substance, the tribunal did in this case, there are excellent reasons for regarding its two decisions as judicial in nature. It conducted a hearing in relation to a complaint by an individual who alleged that the council had broken the law, and who sought compensation…Hearing and determining a case about an alleged breach of the law…are activities routinely undertaken by civil courts, and are essentially judicial in nature.

Evans J in Medical Council of Tasmania v Medical Complaints Tribunal [2005] TASSC 24 at [14] found that the absence of a provision in the legislation establishing the Tribunal authorising an appeal from a decision was indicator of an administrative decision covered by the JRA.

This was a case in which the Medical Council was seeking review of a decision relating to the publication of information and it was said that the decision “…pertains to the operation of the Tribunal”. In this respect, having previously held that administrative and judicial decisions need not be mutually exclusive, Evans J said that, “To my mind, such a decision can properly be characterised as administrative, although it may also be judicial”.

Whether a final determination of the substance of the matter before the Medical Complaints Tribunal would have been administrative or judicial was not decided and therefore any direct comparison with the Disciplinary Tribunal is impossible.

Kentish Council v Wood was decided several years after Evans J delivered his judgment in Medical Council of Tasmania, and it is notable that the functions of the Medical Complaints Tribunal are not dissimilar from the functions of the Anti-Discrimination Tribunal as explained by Blow J at [20].
It seems likely when viewing the totality of the legislation by which the Disciplinary Tribunal is established and operates that, at least insofar as final determinations are concerned, those determinations are of a judicial character.

Whatever the answer regarding the character of the Disciplinary Tribunal’s decisions, the JRA is not a panacea for all dissatisfaction with a determination of the Disciplinary Tribunal under s 458. This is so because an applicant for judicial review of a decision to which the JRA applies must base their application on one or more of the grounds in s 17(2) of that Act. As the ALRC puts it, “Judicial review is available to test the legality of a decision, and not its merits – the courts are not authorised to ask whether the decision was a ‘good’ decision. It asks whether the decision has been properly made, in accordance with the law”.

Even if error is established, it does not follow that a decision will be quashed if the error was not material[3].

Assuming the Disciplinary Tribunal is making a decision that is judicial in character, the power of the Supreme Court to grant relief in the nature of certiorari or mandamus remains to review and quash impugned decisions infected by jurisdictional error.

But in a word of caution, Logan J said in Igoe v Ryan (No.2) [2020] FCA 1091 at [50] that, “Emphatically, certiorari is not a substitute for an absence of express provision for an appeal. Instead, it is a remedy by which a superior court…supervises the acts of an inferior court or tribunal”.

An applicant for relief in the nature of certiorari or mandamus still faces significant obstacles, no less than the discretion of the Court to refuse such relief if the error established is not material. Further, the Court may decline to grant the relief sought if the impugned decision does not have a legal impact.

While Wang v Sheehy closes the door on an appeal to the Supreme Court from a s 458 determination of the Disciplinary Tribunal, other options remain, not to challenge the merits of a decision, but the way in which the Tribunal’s decision was reached. Granted, this will be of little value to an aggrieved party if the learned members of the Disciplinary Tribunal do not err in the way in which they make their decision.

When a client or legal practitioner is faced with an adverse decision of the LPBT, it is necessary to weigh up in which jurisdiction a re-hearing should be sought under s 458. The limitations and advantages of a re-hearing by the Disciplinary Tribunal makes this tactical election potentially critical to the future course of the matter. Costs, efficiency, and the finality of proceedings should be key considerations.

If you are a practitioner responding to a (perhaps vexatious) complaint, and the complainant applies to re-hear the complaint before the Disciplinary Tribunal, there is at least some cold comfort that the decision of the Disciplinary Tribunal will, absent jurisdictional error, likely be final.

The Act requires reform to correct both drafting and pragmatic errors occasioned by its history. It cannot be the case that Parliament intended valuable Supreme Court time to be taken up re-hearing the summary dismissal or dismissal of a complaint in the first instance. This is particularly so when a complaint has been summarily dismissed for being vexatious, misconceived, frivolous, or lacking in substance. Plainly, these are functions that should be undertaken by the Disciplinary Tribunal at first instance to save time and costs. It is submitted that only then should the Supreme Court have the power to determine a complaint by way of re-hearing or appeal in the strict sense.

[1] Wang v Sheehy at http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/tas/TASFC/2026/1.html
[2] Wang v Sheehy [2024] TASSC 67 (19 November 2024) at http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/tas/TASSC/2024/67.html
[3] Pegg v Anti-Discrimination Commissioner [2025] TASSC 51 (14 October 2025) at https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/tas/TASSC/2025/51.html

April 2026

Alex Kendall
Barrister, Derwent & Tamar Chambers