David Claude Fitzgibbon v Council of the New South Wales Bar Association

[2011] HCASL 188

DAVID CLAUDE FITZGIBBON
v
COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION & ANOR
[2011] HCASL 188
S246/2011

1. The Council of the New South Wales Bar Association brought proceedings in the Administrative Decisions Tribunal of New South Wales ("the Tribunal") contending that the applicant was guilty of unsatisfactory professional conduct.  The applicant applied to have the proceedings struck out on the ground that the application was brought outside the time limited under the Legal Profession Act 2004 (NSW) ("the LPA")[1].  The Tribunal dismissed his application. 

   [1]LPA, s 552(1).

2. The applicant could have but did not apply for leave to appeal from the Tribunal's determination[2]. Instead, he commenced proceedings by summons, claiming prerogative relief to quash the Tribunal's determination. The proceedings came before the Court of Appeal of the Supreme Court of New South Wales (Basten and Young JJA and Handley AJA). It was not necessary for the Court of Appeal to determine whether the circumstance that the applicant brought proceedings for judicial review rather than for leave to appeal under the LPA militated against the grant of relief in any event. The Court concluded that the applicant's construction of the statutory scheme was misconceived and that the Legal Services Commissioner's letter recording his decision to modify his complaint[3] was not a decision that proceedings be commenced in the Tribunal for the purposes of ss 537(2) and 552(6) of the LPA.

   [2]LPA, s 729A(4)(a).

   [3]LPA, s 535(1).

3. There is no reason to doubt the correctness of the Court of Appeal's conclusion.  No question of law suitable for the grant of special leave to appeal is raised by this application.  If special leave were granted there would be no prospects that the appeal would succeed. 

4. The application is dismissed.

5. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

J.D. Heydon
26 October 2011 V.M. Bell