ATTORNEY-GENERAL v Kowalski (No 2) - [2015] SASC 138

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ATTORNEY-GENERAL v KOWALSKI (NO 2)
[2015] SASC 138
Judgment of The Honourable Justice Blue
21 July 2015
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - GENERALLY
The defendant applies under section 39 of the Supreme Court Act 1935 for permission to institute an appeal to the Legal Practitioners Disciplinary Tribunal under section 77K of the Legal Practitioners Act 1981.
The defendant complained to the Legal Professional Conduct Commissioner against a legal practitioner of overcharging, professional misconduct or unsatisfactory professional conduct. The complaint was governed by both sections 77B and 77N which are subject to section 77C of the Act. The Commissioner by his delegate decided to close the complaint under section 77C of the Act.
Held:
1. There is no power to appeal against a determination by a Commissioner under section 77C of the Act to the Tribunal and the Tribunal would have no jurisdiction to hear the defendant's substantive complaint (at [9]).
2. The defendant's application is refused (at [16]).
Supreme Court Act 1935 (SA) s 39; Legal Practitioners Act 1981 (SA) ss 77B(2), 77C, 77C(2)(3), 77J(1)(a), 77K, 77N, 77N(1) , referred to.

ATTORNEY-GENERAL v KOWALSKI (NO 2)
[2015] SASC 138
BLUE J:

Mr Kowalski applies for permission under section 39 of the Supreme Court Act 1935 (SA) to institute proceedings, namely an appeal to the Legal Practitioners Disciplinary Tribunal under section 77K of the Legal Practitioners Act 1981 (SA) against a decision of the Legal Profession Conduct Commissioner on 10 July 2015.
Mr Kowalski made a complaint or a series of complaints against Mr Bourne under Division 2, Subdivision 1 of Part 6 of the Act. That Subdivision provides that a person can make a complaint against a legal practitioner of unsatisfactory professional conduct or professional misconduct, and one species of unsatisfactory professional conduct for example is charging of excessive legal costs in connection with the practice of law. The Subdivision distinguishes between complaints of overcharging as such and other complaints of unsatisfactory professional conduct or of professional misconduct.
Section 77B(2) provides that the Commissioner must investigate the conduct of a practitioner if a complaint has been received in relation to that practitioner’s conduct, subject only to section 77C. In turn section 77C empowers the Commissioner to close a complaint without further consideration of its merits on seven different grounds. Ground (a) is that the complaint is vexatious, misconceived, frivolous or lacking in substance and ground (c) is that the subject matter of the complaint has been or is already being investigated, whether by the Commissioner or another authority.
In addition, relating specifically to overcharging, section 77N(1) provides that the Commissioner must investigate a complaint of overcharging unless the complaint is received more than two years after the final bill to which the complaint relates was delivered to the client or the complaint is resolved before the Commissioner commences an investigation. That subsection is subject to section 77C. It is also subject to sub-sections (2) and (3).
Mr Kowalski’s complaint encompassed both overcharging and other professional misconduct or unsatisfactory professional conduct aside from overcharging, so it was governed by both section 77B and section 77N, but both are subject to section 77C.
The Commissioner by his delegate, Mr Trim QC, decided on 10 July 2015 that he would close the complaint under section 77C(1). He treated there as having been eight separate complaints and relied variously on paragraph (a) or paragraph (c) for those eight complaints.
Mr Kowalski seeks to appeal against that decision under section 77K, which provides that an appeal to the Tribunal against a determination of the Commissioner under section 77J(1)(a) may be instituted by the complainant. That is subject to sub-section (3), which requires it to be instituted within one month.
That appeal to the Tribunal is limited to a determination of the Commissioner under section 77J(1)(a) relevantly here because Mr Bourne is a current practitioner, not a former practitioner. Section 77J(1)(a) empowers the Commissioner, if after conducting an investigation the Commissioner is satisfied that there is evidence of unsatisfactory professional conduct and that the conduct in question can be adequately dealt with under the sub-section, to determine not to lay a charge before the Tribunal and instead exercise any one or more of seven different powers.
However, the Commissioner has not acted under section 77J; the Commissioner has not in fact conducted an investigation into Mr Bourne’s conduct. Indeed, the heart and soul of Mr Kowalski’s complaint is that he has not conducted that investigation. Instead, he has closed the file under section 77C without conducting the investigation. It follows that there is no power to appeal against the Commissioner’s determination to the Tribunal and the Tribunal would have no jurisdiction to hear Mr Kowalski’s substantive complaint.
If there is any vehicle that Mr Kowalski can use to challenge the decision, it would have to be judicial review proceedings in this Court against the determination of the Commissioner under section 77C. If Mr Kowalski sought permission to bring judicial review proceedings, he might face the difficulty that section 77C(3) provides that the Commissioner is not required to give a complainant an opportunity to be heard before determining whether or not to close a complaint under this section, although it might be said in a substantive sense that Mr Trim QC did give Mr Kowalski an opportunity to be heard by the process of back and forth communications between Mr Trim on the one hand and Mr Bourne or Mr Kowalski on the other. At all events, at this stage, Mr Kowalski is not seeking permission to bring judicial review proceedings in this Court. He is seeking to appeal to the Tribunal.
Mr Kowalski has provided me with a copy of a presentation that the Commissioner gave on 26 June 2014 about the new Act and his powers, where the Commissioner laid out an overview of the new provisions, particularly as they address overcharging, broadly in accordance with what I have addressed in these reasons as to, in particular, section 77N. In that paper, the Commissioner says that if a complaint of overcharging is made outside the two years, then it is not mandatory for him to investigate, but he is not precluded from investigating. In this case, one of Mr Kowalski’s complaints is overcharging and it would not be mandatory for the Commissioner to investigate but he would have a discretion to do so. That would be a relevant factor in considering whether judicial review is available, but his other complaints that are not of overcharging, they would not be governed by section 77N; they would be governed by section 77B.
There are also complex transitional provisions in the amending Act that introduced the provisions relating to the Commissioner. Schedule 2 of that amending Act, paragraph 13(1), provides that:
If a complaint received by the Board in relation to the conduct of a legal practitioner has not been resolved before the relevant day, the Commissioner will on and from that day assume the conduct of the complaint as if it had been received by the Commissioner.
Then it provides specifically for overcharging complaints by sub-paragraph (3):
An investigation commenced by the Board into … (b) a complaint of overcharging is, if the investigation has not been completed before the relevant day, to be continued by the Commissioner as if the investigation had been commenced under section 77B.
Mr Kowalski says that he wrote to the Commissioner about a week ago pointing out the transitional provisions and contending that he had originally made a complaint in or before 1995 which the Board, or perhaps even the Law Society’s Complaints Committee being the predecessor of the Board, had investigated but determined in 1995 to take no further action; then in 1996 the Board effectively and Mr Kowalski contends decided to reopen that investigation; then in July 1996 determined that there had been overcharging in its opinion and that $4,000 approximately should be refunded; and then in January 1997 determined that it would not in fact take any further action and would not pursue the overcharging matter.
The Board at the time described the 1996 determination as being on an own motion investigation initiated in 1996 but Mr Kowalski’s contention is that following his complaint and the Board’s initial response to it, he wrote to the Lay Observer and that led to the Board reopening the matter. He contends that, as a matter of substance, it was still investigating his original complaint even though it chose to reopen it, prompted - arguably of its own motion but prompted - by his complaint to the lay observer.
I understand Mr Kowalski’s contention as to why he says that, because he was never told of the January 1997 resolution of the Board or indeed the July 1996 resolution, that complaint was never resolved because the complainant was required to be informed of the final resolution of his or her complaint. Hence he says it is picked up under the transitional provisions. At this point he has received no reply from Mr May. It is likely that Mr May will delegate the responsibility for replying to another person, perhaps Mr Trim QC. But at all events, Mr Kowalski at this point has received no reply from anyone on behalf of the Commissioner. Again, if he does receive a reply that it will not be investigated, it might be that he could bring judicial review proceedings in respect of that before this Court, but again my view is he could not appeal to the Tribunal in relation to such a decision.
I decline to grant permission under section 39 to Mr Kowalski to appeal to the Tribunal. It will be a matter for him whether he wishes to consider applying for permission to bring judicial review proceedings either in respect of Mr Trim’s 10 July 2015 decision or in respect of any future decision the Commissioner or his delegate might make in response to his letter.