Council of the Law Society of New South Wales v Levitt

The Council of the Law Society of New South Wales (the Council) applied for judicial review of its own decisions concerning complaints against a solicitor, Mr Levitt. The Council had resolved that it was satisfied there was a reasonable likelihood of the Civil and Administrative Tribunal concluding Mr Levitt was guilty of professional misconduct. The central dispute concerned the proper construction and application of sections 537(2) and 540 of the *Legal Profession Act 2004* (NSW).

The legal issues before the court were whether the Council was required to consider section 540 of the Act as a condition precedent to the operation of section 537(2), and whether the Council's satisfaction of a reasonable likelihood of professional misconduct precluded it from also being satisfied of a reasonable likelihood of unsatisfactory professional conduct. The court was asked to determine if section 537(2) mandated that the Council also consider the reasonable likelihood of a finding of unsatisfactory professional conduct.

The Court of Appeal held that section 540 of the *Legal Profession Act 2004* (NSW) did not impose a condition precedent to the operation of section 537(2). It reasoned that the Council's satisfaction regarding a reasonable likelihood of professional misconduct did not preclude it from also being satisfied of a reasonable likelihood of unsatisfactory professional conduct. The court found that the wording of section 537(2) did not require the Council to consider unsatisfactory professional conduct in addition to professional misconduct.

The appeal was dismissed with costs, including the costs of the application for leave to appeal.