CITATION: CARSON v LEGAL SERVICES COMMISSIONER & ANOR [2000] NSWCA 308 FILE NUMBER(S): CA 40360/2000 HEARING DATE(S): 19 June 2000, 20 June 2000, 21 June 2000, 22 June 2000, 18 July 2000, 19 July 2000 JUDGMENT DATE:
3 November 2000PARTIES :
Nicholas Roderick Carson - Appellant
Legal Serices Commissioner - First Respondent
Administrative Decisions Tribunal - Second RespondentJUDGMENT OF: Sheller JA at 1; Giles JA at 292; Hodgson CJinEq at 293
LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT
FILE NUMBER(S) :12553/97 LOWER COURT
JUDICIAL OFFICER :Simpson J
COUNSEL: P LeG Brereton SC - Appellant
M J Joseph SC/ G P Craddock/F Clarke - RespondentsSOLICITORS: Atanaskovic Hartnell - Appellant
Crown Solicitor's Office - RespondentsCATCHWORDS: ADMINISTRATIVE LAW - Judicial review - Denial of natural justice - Void/voidable decisions - Discretion to set aside decision. - LEGAL PRACTITIONERS - Legal disciplinary authorities and proceedings - Legal Services Commission of New South Wales - Allegations of professional misconduct - Commissioner’s decision to institute proceedings against practitioner before Legal Services Tribunal in contravention of natural justice - Consequences of contravention - Whether decision void - Court’s discretion to set aside decision. - LEGAL PRACTITIONERS - Professional misconduct - Whether misconduct in instituting proceedings on clients’ behalf - Whether proceedings brought for improper purpose - Whether improper to bring proceedings to terminate grant of legal aid of opponents in litigation - Whether misconduct in giving inaccurate evidence - Requirement of knowledge. - PROCEDURE - Stay of proceedings in disciplinary tribunal - Abuse of process of tribunal - Breach of natural justice - Whether proceedings foredoomed to fail - Delay in making complaint and instituting proceedings - Improperly obtained evidence - Whether pending contempt proceedings raise same issues as legal disciplinary proceedings. - PROCEDURE - Discovery - Use of documents for collateral or ulterior purpose - Implied undertaking by party to whom documents produced - Use in making a complaint to legal disciplinary authority. - PROCEDURE - Parties - Joinder of parties - Where complainant applied during hearing of appeal to be joined as party to proceedings between legal practitioner and Legal Services Commissioner - Complainant’s role under Legal Profession Act 1987. - PROCEDURE - Amicus curiae - Where complainant applied during hearing of appeal to be heard as amicus curiae in proceedings between legal practitioner and Legal Services Commissioner. D LEGISLATION CITED: Administrative Decisions Legislation Amendment Act 1997
Legal Profession Act 1987
Suitors’ Fund Act 1951
Supreme Court Rules 1970CASES CITED: Ainsworth v Hanrahan (1991) 25 NSWLR 155
ASC v Ampolex (1996) 14 ACLC 81
Barwick v Law Society of New South Wales (2000) 74 ALJR 419
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Calvin v Carr [1979] 1 NSWLR 1
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Dowling v Colonial Mutual Life Assurance Society Limited (1915) 20 CLR 509
Egger v Viscount Chelmsford [1965] 1 QB 248
Flower & Hart (a firm) v White Industries…
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Details
- AGLC
- Carson v Legal Services Commissioner [2000] NSWCA 308
- Case
- [2000] NSWCA 308
- Decision Date
CaseChat Overview and Summary
The case of *Carson v Legal Services Commissioner* concerned a legal practitioner, Mr. Carson, who sought judicial review of a decision by the Legal Services Commissioner to institute proceedings against him before the Legal Services Tribunal. Mr. Carson alleged that the Commissioner's decision to commence these proceedings was made in contravention of the rules of natural justice. The matter came before the Court of Appeal of New South Wales.
The primary legal issues before the Court of Appeal were whether the Commissioner's decision to institute proceedings was void due to a breach of natural justice, and if so, whether the Court should exercise its discretion to set aside that decision. Relatedly, the Court considered whether the proceedings before the Tribunal constituted an abuse of process and whether they should be permanently stayed. The Court also addressed applications by a complainant to be joined as a party or to be heard as amicus curiae.
The Court of Appeal, allowing Mr. Carson's appeal and setting aside certain orders of the primary judge, declared that the Commissioner's decision to institute proceedings was void. This conclusion was based on the finding that the Commissioner had failed to afford Mr. Carson natural justice before making the decision to commence disciplinary proceedings. The Court reasoned that a decision made in breach of natural justice is void, and in this instance, the breach was fundamental. Consequently, the Court ordered that the proceedings before the Legal Services Tribunal be permanently stayed, effectively preventing the disciplinary action from proceeding. The cross-appeal by the Commissioner was dismissed.
The primary legal issues before the Court of Appeal were whether the Commissioner's decision to institute proceedings was void due to a breach of natural justice, and if so, whether the Court should exercise its discretion to set aside that decision. Relatedly, the Court considered whether the proceedings before the Tribunal constituted an abuse of process and whether they should be permanently stayed. The Court also addressed applications by a complainant to be joined as a party or to be heard as amicus curiae.
The Court of Appeal, allowing Mr. Carson's appeal and setting aside certain orders of the primary judge, declared that the Commissioner's decision to institute proceedings was void. This conclusion was based on the finding that the Commissioner had failed to afford Mr. Carson natural justice before making the decision to commence disciplinary proceedings. The Court reasoned that a decision made in breach of natural justice is void, and in this instance, the breach was fundamental. Consequently, the Court ordered that the proceedings before the Legal Services Tribunal be permanently stayed, effectively preventing the disciplinary action from proceeding. The cross-appeal by the Commissioner was dismissed.
Orders
Orders of the court
1. Appeal allowed; 2. Cross-appeal dismissed; 3. Set aside orders 3, 4 and 5 made by Simpson J on 12 May 2000; 4. In lieu thereof; "3. Declare that the decision of the first opponent under the Legal Profession Act s155(2) to institute proceedings before the Tribunal with respect to the complaint against the claimant was void."; 4. Order that the proceedings No 43 of 1996 before the second respondent be permanently stayed; 5. Order that the first opponent and respondent pay the costs of the claimant and appellant of the proceedings before Simpson J and of this appeal but have a certificate under the Suitors’ Fund Act 1951 if so qualified.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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