Flowers v Legal Profession Conduct Commissioner - [2017] SASC 129

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
FLOWERS v LEGAL PROFESSION CONDUCT COMMISSIONER
[2017] SASC 129
Judgment of The Honourable Justice Lovell
12 September 2017
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
Interlocutory Application seeking to have the Legal Profession Conduct Commissioner stopped from defending his own determination in judicial review.
Application dismissed.
Legal Practitioners Act 1981 s 77; Public Sector (Honesty and Accountability) Act 1995 s 17, referred to.
Viscariello v Legal Profession Conduct Commissioner [2015] SASC 132, applied.
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, distinguished.

FLOWERS v LEGAL PROFESSION CONDUCT COMMISSIONER
[2017] SASC 129
Civil: Application
LOVELL J.
Background

This matter has an extensive history. Mr Flowers has sought to review a decision of the Legal Profession Conduct Commissioner (the Commissioner) dismissing his complaint against his former wife’s solicitor arising from litigation in the Family Court of Australia. The matter in the Family Court of Australia commenced in approximately June 2007 and culminated in a six-day trial in September 2014.
On 28 April 2017 I handed down a judgment finding that Mr Flowers has standing for judicial review of the respondent’s determination.
Immediately following the handing down of my reasons on 28 April 2017 counsel for the Commissioner, Mr McCarthy, submitted that the Commissioner would not be defending the determination of the judicial review himself but would rather instruct the Crown Solicitor’s Office (CSO) to act on his behalf.
On 10 May 2017 Mr Flowers filed an interlocutory application in which he sought, inter alia, that the Commissioner and the CSO on the Commissioner’s behalf both be prohibited from defending the determination subject to judicial review. The specific orders sought in the application are outlined below.
After the filing of Mr Flowers’ interlocutory Mr McCarthy advised the court that the Commissioner had reconsidered his position and decided that he would in fact defend the determination himself and would not have the CSO acting on his behalf. It is therefore not necessary to consider the first or second orders sought.
Orders Sought
On 10 May 2017 Mr Flowers filed an interlocutory application seeking the following orders:
1That this Court restrain the CSO from representing the Commissioner in the judicial review of the Commissioner’s determination issued on 27 August 2017;
2That this Court restrain the CSO from representing the Commissioner in any re-investigation of the legal practitioner subject to the determination issued on 27 August 2017;
3That the Commissioner be restrained from providing an employee of the Commissioner to instruct any legal practitioner assigned to represent the Commissioner in judicial review of the relevant determination or reinvestigation of the relevant practitioner;
4That costs of the application be awarded; and
5Any other order that the Court deems necessary.
Applicant’s Submissions
Mr Flowers’ submitted that the Commissioner could not defend the review proceedings as to do so would “offend the Hardiman principle.” It was submitted that because the Commissioner was the original decision maker of the 27 August 2015 determination, he should not be permitted to defend his determination at judicial review.
Hardiman Principle
The “Hardiman principle” is drawn from the obiter comments of the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman[1] and has been applied broadly and is accepted as binding authority. The relevant passage reads:[2]
There is one final matter. Mr. Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors' case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.
[1] (1980) 144 CLR 13.
[2] Ibid at [35]-[36].
The Hardiman principle protects the independence and impartiality of administrative decision makers in circumstances where their decision is subject to judicial review and in which there is a possibility that the decision may be set aside and remitted to the original decision maker to re-determine.
This court recently reconsidered the application of the Hardiman principle in Viscariello v Legal Profession Conduct Commissioner in which Parker J said:[3]
The High Court noted in Hardiman that the usual course where a decision made by a tribunal is challenged in a judicial review is for the tribunal to submit to such order as the court may make. Thus, in practice, tribunals (and also inferior courts) instruct their legal representative to attend at the first opportunity and to give an undertaking to abide the decision of the court save as to costs. If there is no other contravener, the Attorney-General (or in some cases another Minister) may then intervene or appear as amicus curiae. The High Court made clear that there is a risk if a tribunal actively defends its own decision that it will endanger its impartiality should the matter be remitted for further consideration.
…
The important point is that the basis for the Hardiman principle is not that a tribunal has a conflict of interest in defending its own decision. Rather, as the High Court observed, a tribunal must be careful to avoid an apprehension of bias arising should the matter be remitted to it for further consideration. Such an apprehension may arise if a tribunal actively defends its own decision.
(Citations omitted)
[3] [2015] SASC 132 at [55]-[61].
Parker J’s above summary and application of the Hardiman principle was not disturbed by the Full Court upon appeal.[4]
[4] Viscariello v Legal Profession Conduct Commissioner [2017] SASCFC 98 at [37] (Kourakis CJ).
Respondent’s Submissions
The Commissioner submitted that he can defend his determination without offending the Hardiman principle as he has given an undertaking to this Court that should this matter be remitted back to the Commissioner for reconsideration, in either part or whole, then the Commissioner will:
1Not reconsider the matter himself;
2Delegate the matter to a senior member of the Independent Bar to consider Mr Flowers’ complaint; and
3Draft the delegation wide enough so the delegate will be able to investigate any matter and/or make any determination/s, that arise from any referral due to a decision of this Court in this judicial review matter.
The Commissioner submitted that as a result of this undertaking he can defend his determination and not offend the Hardiman principle because if the matter is remitted there could be no apprehension of bias as the complaint will be heard by an independent person.
Further, the Commissioner submitted that the power to delegate in the manner described above exists under s 77 of the Legal Practitioners Act 1981 in addition to a secondary power to so delegate under s 17 of the Public Sector (Honesty and Accountability) Act 1995. Section 77(4) of the Legal Practitioners Act 1981 deals with the prohibition in s 17(1)(c)(ii) of the Public Sector (Honesty and Accountability) Act 1995 which otherwise prohibits a senior official “taking action” in a matter in which he/she has a conflict of interest by expressly stating that a delegation made under s 77 of the Legal Practitioners Act 1981 does not constitute “taking action”. Therefore, in the respondent’s submission, the Commissioner is permitted to delegate his power in the manner he has undertaken to do so if required. This section was recently considered by the Full Court in Viscariello v Legal Profession Conduct Commissioner.[5]
[5] [2015] SASC 132 at [61].
The Commissioner submitted that he is best placed to assist the Court as a contradictor in respect of the decision under judicial review and that there is no basis for the application.
Discussion
As Parker J said in Viscariello v Legal Profession Conduct Commissioner:[6]
…the Hardiman principle is concerned only with avoiding the possibility that a reasonable apprehension of bias might arise in future, and does not establish that a decision maker will face a conflict of interest if they seek to defend their own action.
[6] Ibid.
Prima facie the Commissioner is not prohibited by the Hardiman principle from defending his determination in judicial review. It is not for this court to interfere with his decision to defend the proceedings. Rather, it would be a matter for another court to assess whether, on a redetermination, there may be an “apprehension of bias”. There is nothing in the Hardiman case that would suggest that I could order the Commissioner not be permitted to defend his decision even if no undertaking was given.
Even if I am wrong about that, the undertaking of the Commissioner to delegate both his power to investigate as well as to make a determination should the matter be remitted removes any concern regarding an apprehension of bias. If the Commissioner is unsuccessful in the judicial review proceedings he will play no further role in Mr Flowers’ complaint save as to appointing an appropriate independent person to investigate and determine it. The Commissioner will not investigate nor make any subsequent determinations concerning Mr Flowers’ complaint against his former wife’s solicitor.
I dismiss the plaintiff’s application.
Orders
I dismiss Mr Flowers’ application.