Flowers v Legal Profession Conduct Commissioner - [2017] SASC 62

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
FLOWERS v LEGAL PROFESSION CONDUCT COMMISSIONER
[2017] SASC 62
Judgment of The Honourable Justice Lovell
28 April 2017
ADMINISTRATIVE LAW - JUDICIAL REVIEW - STANDING TO INSTITUTE PROCEEDINGS - PARTICULAR CASES
PROFESSIONS AND TRADES - LAWYERS
Judicial review of determination of Legal Profession Conduct Commissioner that a practitioner had not breached their professional obligations - whether plaintiff had standing - whether plaintiff should have sought remedy other than judicial review.
Held:
1. Plaintiff has standing for judicial review.
2. Discretion not exercised to refuse the plaintiff remedies should he be successful on judicial review. The alternative remedies available to the plaintiff were not equally effective and convenient.
Legal Practitioners Act 1981 (SA) s 77K, s 77J, s 77B(2), s 82; Administrative Decisions (Judicial Review) Act 1989 (Cth), referred to.
McLeod v Legal Profession Conduct Commissioner [2016] SASC 151, applied.
Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493, distinguished.
Argos v Corbell (2014) 254 CLR 394; Viscariello v Livesey [2013] SASC 99, discussed.
Davies v Minister for Urban Development and Planning (2011) 109 SASR 518; Spencer v Commonwealth (2010) 241 CLR 118; Estate of the Late Sir Donald Bradman v Allens Arthur Robinson (2010) 107 SASR 1; Olnus v Alcoa of Australia Ltd (1981) 149 CLR 27; Attorney General (NSW) v Quinn (1990) 170 CLR 1; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Sarkis v Greyhound Racing New South Wales [2015] NSWSC 1987; Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501; Carnley v Grafton Ngerrie Local Aboriginal Land Council [2010] NSWSC 837; Jackson v Chrisp [2013] WASC 380; R v Chief Constable of the Merseyside Police; Ex parte Calveley [1986] QB 424, considered.

FLOWERS v LEGAL PROFESSION CONDUCT COMMISSIONER
[2017] SASC 62
Determination of issue of standing for judicial review
LOVELL J:
Introduction

Mr Flowers was involved in a long-running family law dispute that commenced in approximately June 2007 and culminated in a six-day trial in the Family Court of Australia in September 2014. Mr Flowers was unhappy about the conduct of his former wife’s solicitor, Ms Hicks, and made a complaint against her to the Legal Practitioners Conduct Board on 16 January 2013. Initially the complaint was suspended pending the outcome of Family Court proceedings.
After amendments to the Legal Practitioners Act 1981 (SA) (the Act), effective from 1 July 2014, the plaintiff’s complaints were to be determined by the Legal Profession Conduct Commissioner.
The investigation was re-enlivened on 13 February 2015. Further complaints were made by Mr Flowers against the practitioner. The dates of the further complaints made by Mr Flowers are not relevant to the current application.[1]
[1] Mr Flowers considers the dates important in relation to the merits of his application.
The substance of the complaints against Ms Hicks were summarised in the following extract from the defendant’s determination published 27 August 2015:[2]
[2] Exhibit MKF 6; Determination by the Legal Profession Conduct Commissioner, 27 August 2015, page 7.
Basically, the Complainant alleges an ongoing course of conduct by the Practitioner which the Complainant alleges includes that the Practitioner:
Lied in her affidavits filed in court proceedings;
Coerced her client (the Complainant’s former wife) into misleading the court by including lies in her client’s affidavits filed in court proceedings;
Committed perjury when giving evidence under oath at the most recent property hearing in September 2014 when she said that the trial books first filed on 20 May 2013 and which she provided to the court and to the Complainant were tabulated/paginated and date stamped and were all identical when she knew they were not;
Concealed up to $15,000 in her trust account which resulted in the Complainant’s former wife failing to disclose her true financial situation in her filed Statements of Financial Circumstances;
Engaged in an ongoing conspiracy with various judicial officers against the interests of the Complainant and thus denying justice and fairness to the Complainant;
Wrote the judgment along with Ms West delivered by Justice Benjamin on 10 February 2015 in the proceedings described in the Family Court as Forster v Forster [2015] FamCA 57;
Acted in such a way as to force her client to continue to issue court processes against the Complainant with a view to increasing the Practitioner’s legal fees (that is, “self profit”);
Ensured that the court processes were ongoing at times when the Complainant was either absent from Australia attending to legal proceedings in the USA or otherwise issued proceedings at times in order to ensure the Complainant was unprepared for court proceedings in Australia;
Conducted herself in legal practice in a manner designed to undermine the Complainant’s credibility, reduce him to looking like a person who prevaricates, cannot differentiate fact from fiction, cannot cope with a failed marriage and otherwise conducts himself in such a manner as to reduce the success of his efforts to obtain justice from the court; and
Filed a Notice of Ceasing to Act as an act of malice and which is a further example of the Practitioner’s ongoing misconduct.
The defendant made an initial determination on 11 August 2015 to deal with all the complaints at once. After investigation, the defendant dismissed the complaints in a single determination published on 27 August 2015. The plaintiff seeks to judicially review that determination.
Background
The plaintiff’s application for judicial review was due to be heard on 14 December 2016. By interlocutory application filed on the 15 November 2016 the defendant sought to have the hearing of the merits of the judicial review application adjourned and have the matter proceed initially only on the question of the standing of the plaintiff to bring on the application. The question of standing (or lack of it) was said to be a complete answer to the application of the plaintiff. The application was granted.
On the 14 December 2016 the defendant submitted that the plaintiff’s application for judicial review should be dismissed for the following reasons:
1the plaintiff does not have standing to seek judicial review;
2the plaintiff was not the object of, nor was he directly affected by, the alleged misconduct;
3the plaintiff was a party to Family Law Court proceedings and exhausted all avenues of his specific allegations of complaint against the practitioner throughout those Family Law proceedings; and
4in addition to the standing argument there are other more appropriate remedies available to the plaintiff which he has not yet pursued. Therefore, the court should exercise its discretion to refuse a judicial review and dismiss the proceedings.
As can be seen, the defendant’s submissions are wider than the grounds stated in the Interlocutory Application. Grounds 2 and 3 appear to be particulars of why the defendant suggests the plaintiff does not have standing. Ground 4 appears to be a separate ground to that of standing.
The Interlocutory Application filed by the defendant sought to bifurcate the process and have me determine the question of standing prior to the hearing on the merits. The defendant’s written submissions appear to be, in part at least, based on r 200C, namely an application for summary dismissal rather than a final determination of the issue of standing.
Rule 200C(1) provides that the defendant is entitled to file an application for summary dismissal under r 232. Rule 200C(2) provides that if such an application is made by a defendant then the Court must dismiss or strike out the action or statement of grounds, as the case may be, in so far as an order for judicial review is sought, unless satisfied there is a reasonable basis for the claim for an order for judicial review. This was the application before Doyle J in McLeod v Legal Profession Conduct Commissioner.[3] On the application before him Doyle J stated:[4]
Under r 200C(1) of the Supreme Court Civil Rules 2006 (SA), a defendant to judicial review proceedings is entitled to file an application for summary dismissal under r 232, or to strike out the statement of grounds under rr 104, 117 or 193. Under r 200C(2), if a defendant files such an application, the Court must dismiss or strike out the action or statement of grounds, as the case may be, insofar as an order for judicial review is sought, unless satisfied that there is a reasonable basis for the claim for an order for judicial review.
The parties have proceeded on the basis that the concluding paragraph of the defendant’s response is to be treated as an application under r 200C(1), and so I too will proceed on that basis.
The reference to “reasonable basis” in r 200C(2) mirrors the language of r 232 and so is to be informed by the authorities addressing r 232. There is also a close analogy with the authorities addressing applications to strike out claims under rr 104, 117 or 193 on the basis that the pleadings do not disclose a reasonable cause of action.
The power to dismiss proceedings under r 200C should not be exercised lightly.[5] However, beyond that note of caution, the better view appears to be that the words “no reasonable basis” require no elaboration.[6] It is thus unnecessary to consider or determine whether the claim is hopeless, unarguable, obviously untenable or bound to fail. The only issue is whether there is a reasonable basis for the claim in the sense that there is a reasonable prospect that, if the matter went to trial, it would succeed.[7]
There are two limbs to the Commissioner’s contention that the plaintiff’s claim does not have reasonable prospects of success. The first is that the plaintiff does not have standing to bring these judicial review proceedings. The second is that the Court should exercise its discretion to decline the relief sought on the basis that the plaintiff has an alternative remedy or remedies available to him.
So far as the first of these contentions is concerned, the issue on this application is whether the plaintiff has a reasonable basis for, or reasonable prospects of, establishing standing. So far as the second contention is concerned, despite it involving consideration of a discretion, the test remains the same, namely whether there is a reasonable basis on which the Court’s discretion to grant the relief claimed might be exercised in favour of the plaintiff.
[3] [2016] SASC 151.
[4] Ibid [20]-[25].
[5]    Davies v Minister for Urban Development and Planning (2011) 109 SASR 518, [44]; Spencer v Commonwealth (2010) 241 CLR 118, [60]; Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1; Estate of the Late Sir Donald Bradman v Allens Arthur Robinson (2010) 107 SASR 1, [26]-[29].
[6]    Davies v Minister for Urban Development and Planning (2011) 109 SASR 518, [44]-[48]; Spencer v Commonwealth (2010) 241 CLR 118, [56]-[58].
[7]    In Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1, [94] Debelle J with whom Duggan and Anderson JJ agreed, put the test in terms of “reasonable as distinct from fanciful prospects of success”.
I agree with Doyle J’s analysis of the operation of r 200C. However that was not the application before me. The application before me was in effect to determine a preliminary point.[8] The test to be applied is different.
[8] Supreme Court Civil Rules 2006 (SA) r 211.
While the defendant’s submissions appear to be, in part at least, based on r 200C I will treat the application as a request to determine the question of standing as a preliminary point. As ground 4 was dealt with in argument I will treat that in the same manner.
Grounds
Much of the conduct the subject of the plaintiff’s various complaints has been dealt with by other courts and in particular the Family Court. In making his determination, the defendant relied upon the judgment delivered on 10 February 2016 by Justice Benjamin of the Family Court. The judgment was handed down after a lengthy trial. In making his determination the defendant stated:[9]
… my office can’t carry out a more thorough investigation than his Honour has already carried out (for example, I am unable to take evidence of either the Complainant or the Practitioner under oath in a way that would enable me to assess for myself their creditability). Accordingly, I would need a very good reason to do other than accept His Honour’s findings. I have no such good reason.
[9] Exhibit MKF 6; Determination by the Legal Profession Conduct Commissioner, 27 August 2015, page 3 at paragraph (f).
The plaintiff is unrepresented. It is not easy to determine precisely the grounds of review. Many of them clearly seek a review of the merits of the matter. However, of relevance to this application he alleges: –
1.the defendant failed to perform an investigation in breach of his statutory obligations;
2.the defendant gave too much weight to, or took into account the Family Court judgement, when he should not have had regard to it;
3.the defendant refused to accept documentation, proffered by the plaintiff, relevant to his decision making; and
4.the defendant did not publish to the practitioner a complaint of 24 March 2015 as was required by the legislation.
I do not suggest that these are the only grounds the plaintiff seeks to agitate. However they raise, in some way at least, potential grounds for judicial review.
The plaintiff seeks relief by way of orders that:
1.the Court quash the Commissioner’s determination;
2.the Court make a declaration that the Commissioner failed to follow statutory procedures under the Legal Practitioners Act 1981 (SA);
3.the Court require the Commissioner to comply with his legal duties.
It can be seen that the plaintiff seeks orders in the nature of certiorari (and to a limited extent mandamus).
Statutory Background
During the course of argument there was much discussion about Doyle J’s decision in McLeod v Legal Profession Conduct Commissioner.[10] Doyle J dealt with the statutory context relating to the Commissioner’s determination. Before discussing His Honour’s analysis, it is necessary to briefly mention the facts in the case.
[10] [2016] SASC 151.
Mr McLeod was charged with some minor offences arising out of an incident on 28 May 2010 when police officers intervened in an altercation between Mr McLeod and two other men. He was charged with resisting a police officer in the execution of his duty along with some other minor matters. On 15 March 2011 a Magistrate dismissed the charges against Mr McLeod. The Police appealed the dismissal to the Supreme Court. The Police were represented in that appeal by a solicitor and counsel from the Crown Solicitor’s Office (the practitioners). The appeal was allowed and the matter was remitted to the Magistrates Court. Eventually, in May 2012, a Magistrate found Mr McLeod not guilty of all charges. Mr McLeod commenced civil proceedings against the Police alleging, inter alia, malicious prosecution. He also indicated the possibility of civil proceedings against the practitioners, although at the time of the hearing before Doyle J, proceedings had not been issued. In May 2014 Mr McLeod made a complaint to the Legal Practitioners Conduct Board about the conduct of the practitioners who represented the Police on the appeal. Mr McLeod alleged misconduct by the practitioners in connection with the appeal hearing.
The complaints against the practitioners fell to be determined by the Legal Profession Conduct Commissioner (the Commissioner). On 21 May 2015, the Commissioner determined that he was not satisfied that there was evidence that either of the practitioners had engaged in unsatisfactory or unprofessional conduct. Mr McLeod challenged those determinations in judicial review proceedings.
In order to consider Mr McLeod’s prospects of establishing standing, and the likelihood of the court declining relief on discretionary grounds, it was necessary to understand the legislative scheme governing the discipline of legal practitioners in this state. Doyle J reviewed the relevant sections of the Act and I gratefully adopt his summary.[11]
[11] Ibid [27]-[42].
Relevant to the issues in this case Doyle J summarised the position as follows:[12]
[12] Ibid [43]-[46].
It can thus be seen that upon receipt of a complaint by the Commissioner, there are various courses open to him. Some of them involve taking action against the practitioner following investigation (either through an exercise of the Commissioner’s powers under s 77J or by laying a charge before the Tribunal). Others involved determining to resolve the matter without any such action. The latter is an available course where the Commissioner determines not to investigate or to close a complaint under s 77C; where the Commissioner conducts an investigation but determines that there is no evidence of misconduct; or where the Commissioner conducts an investigation and determines that there is evidence of misconduct which cannot be adequately dealt with under s 77J, but that it would not be in the public interest to lay a charge before the Tribunal.
In the category of cases where the Commissioner determines not to take action against the practitioner, the Commissioner is obliged under s 77M of the Act to provide the complainant and the legal practitioner with written reasons for his determination.
Section 77K addresses rights of appeal against determinations made by the Commissioner. It provides the legal practitioner and complainant with a right of appeal to the Tribunal in the case of some, but not all, determinations of the Commissioner. It relevantly provides:
77K—Appeal against determination of Commissioner
(1)Subject to subsection (3), an appeal to the Tribunal against a determination of the Commissioner under section 77J(1)(a) or (3)(a)(i) may be instituted by—
(a) the legal practitioner or former legal practitioner in relation to whom the determination was made; or
(b) the complainant.
(2)Subject to subsection (3), an appeal to the Tribunal against a determination of the Commissioner under section 77J(1)(b), (2) or (3)(a)(ii) or (b) after conducting an investigation into the conduct of a legal practitioner or former legal practitioner following receipt of a complaint may be instituted by the person who made the complaint.
The Act thus provides appeal rights only in respect of determinations by the Commissioner to exercise the disciplinary powers conferred upon him under the identified subsections of s 77J. Where he determines to do so without the consent of the legal practitioner (s 77J(1)(a)),[13] a right of appeal is afforded to both the legal practitioner and the complainant. Where the Commissioner determines to do so only with the consent of the legal practitioner, then a right of appeal is afforded only to the complainant. There is no right of appeal afforded to the complainant (or legal practitioner) if the Commissioner determines to deal with the matter other than through an exercise of his powers under s 77J, i.e. by closing the complaint, determining not to exercise the powers under s 77J on the basis there is no evidence of misconduct, or by laying a charge in the Tribunal (My underlining).
[13] The references to s 77J(3) can be ignored for present purposes as that subsection relates to former practitioners.

In his determination of 27 August 2015 the defendant, in this matter, decided that there was no evidence of misconduct on the part of the practitioner. The effect of that determination was to preclude the defendant (the Commissioner) from exercising disciplinary powers. It was accepted on this application that the nature of the determination was such that the plaintiff has no right of appeal to the Tribunal under s 77K of the Act. This is the same position in which Mr McLeod found himself. Doyle J refused the application for summary dismissal as he found that the plaintiff had at least reasonable prospects of establishing standing to seek judicial review of the Commissioner’s determination.
The defendant accepts that a decision of the Commissioner can, in certain circumstances, be subject to judicial review. Further it is accepted by the defendant that the plaintiff has no other avenue to directly challenge the decision of the Commissioner because of the denial of the right of appeal under s 77K and s 77J. However, the defendant submits that, on the facts of this case, the plaintiff does not have standing to seek judicial review.
Standing
The function of a “standing” rule is to limit access to the court. Whilst the South Australian Civil Rules have no specific test for standing, generally a person will have standing if he or she has sufficient connection with the dispute to allow him or her to institute and maintain the proceedings. That is, for a person to have standing there must be a connection between that person’s interest and the relief sought. There appears to be no single test, particularly depending on the remedy sought, to establish standing. Standing and substantive issues are not always easy to delineate and separate.
The defendant contends here that the plaintiff has no relevant interest in the complaint against the practitioner. He was not, it was submitted, the client of the practitioner and had no interest in what, if any, disciplinary action should be taken against the practitioner in respect of the alleged misconduct. Thus it is argued that the plaintiff had no relevant interest in the determination of 27 August 2015 and he therefore has no standing to seek judicial review of that determination.
In support of this position the defendant relied on the decision of Australian Conservation Foundation Inc v Commonwealth of Australia.[14] The claim in that case was for equitable relief in the form of a declaration or injunction. That is generally governed by the need to establish a “special interest” in the subject matter of the litigation. What must be borne in mind in that case is that generally the applicant was no more affected by the relevant decision than an ordinary member of the public.
[14] (1980) 146 CLR 493.
The question of what is a sufficient interest will vary according to the nature of the subject matter.[15] Sufficient interest means more than a “mere intellectual or emotional concern”[16] or an interest of an “intermeddling kind”.[17] What is required in each case is a curial assessment of the importance of the concern which a plaintiff has with the particular subject matter and of the closeness of the plaintiff’s relationship to that subject matter.[18]
[15] Onus v Alcoa of Australia Ltd (1981) 149 CLR 27.
[16] Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 530.
[17] Viscariello v Livesy [2013] SASC 99.
[18] Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, 41-42.
The nature of a plaintiff’s interest in the relevant subject matter and decision, and the impact and effect of the decision upon a plaintiff must be considered in the context of the legislation under which the impugned decision is made. As Gageler J in Argos v Corbell, albeit in the context of the Administrative Decisions (Judicial Review) Act 1989 (the AD (JR) Act), stated:[19]
To draw a conclusion that a person meets the statutory description of “a person whose interests are adversely affected” by our decision requires: first, identification of a decision of the designated kind; secondly, examination of the legal or practical operation of that decision; and, thirdly, the making of a judgement that the legal or practical operation of the decision has been to result in an adverse effect on identified interests of the person. The nature of the requisite interests, and the nature and degree of the requisite adverse effect, depend on the statutory context in which the description appears.
[19] (2014) 254 CLR 394, 417 [76].
As French CJ and Keane J stated in Argos:[20]
The test for standing to apply for review of the decision under the AD (JR) Act is expressed in that act. The applicant must be “a person aggrieved”, a criterion which may be satisfied if the applicant is a person whose interests are adversely affected by the decision. The text of the criterion, on its face, does not allow for its expansion or contraction according to the scope and purpose of the enactment under which the decision is made. It is not to be read or applied with reference to normative considerations based on the policy of the enactment. To do so by reference to individual enactments would undermine an important purpose of the act, which was to simplify judicial review processes.
Consistently with that proposition it will be necessary to have regard to the enactment to which the impugned decision is made on the legal effect and operation of the decision in order to determine how the interests of the applicant for review may be adversely affected or the applicant otherwise a person aggrieved.
[20] Ibid 409 [42]-[43].
As mentioned, Argos was a decision under the provisions of the AD (JR) Act. However French CJ and Keane J specifically mentioned that the authorities which address the question of standing under the general law afford “some assistance in understanding the kinds of interest which may be relevant in the kinds of the effect that may be regarded as adverse”.[21] Thus the relevant legislation informs the nature of a plaintiff’s interest, but it does not determine whether that interest is sufficient to establish standing.[22] A court must look at the legislative and factual matrix of each case.
[21] Ibid 407 [33].
[22] McLeod v Legal Profession Conduct Commissioner [2016] SASC 151, [60].
Discussion
Pursuant to s 77B(2) of the Act the plaintiff has the status of a “complainant”. The Act requires that the Commissioner commence an investigation upon receipt of a complaint, regardless of the identity of the complainant. Further, as discussed by Doyle J in McLeod, the complainant pursuant to the Act has significant procedural rights in respect of the subsequent investigation. I accept that the status of being a “complainant”, of itself, does not necessarily mean that the person will have a sufficient interest in the subject matter of the complaint to afford him standing to judicially review the decision made by a Commissioner in respect of that complaint.
However in this matter the alleged conduct of the practitioner the subject of the investigation had a direct impact on the plaintiff. I accept that the impact is not necessarily as direct as if the plaintiff was the client of the practitioner. However the fact that there may be other persons more directly affected does not, of itself, disqualify the plaintiff from having standing.
While the plaintiff was not the client of the practitioner, the practitioner acted in the Family Law proceedings for the plaintiff’s former wife. The plaintiff, in effect, alleges that he is the victim of the alleged misconduct of the practitioner. That of itself suggests that as he is a person directly affected by the conduct complained of. The plaintiff, in my view, has a sufficient interest to pass the threshold test of standing.
Like Doyle J, I consider the observations of White J in Viscariello v Livesey[23] are of assistance in this matter. Doyle J stated:[24]
In this respect, I note the concession or submission by the Commissioner to the effect that the plaintiff would be a “person claiming to be aggrieved” by reason of the Practitioners’ alleged misconduct for the purposes of establishing ‘standing’ on the part of the plaintiff to commence proceedings before the Tribunal under s 82(2)(d) of the Act. The Commissioner made this submission in support of his contention that the plaintiff has an alternative remedy available to him that he ought to pursue. However, in my view, it is a concession that was properly made, and importantly for present purposes, implicitly acknowledges a relevant connection between the plaintiff and the alleged misconduct that is the subject of his complaint (and hence the Commissioner’s determinations).
The reasons of White J in Viscariello v Livesey are of assistance in this context. The plaintiff brought proceedings in the Tribunal alleging misconduct by the defendant barrister in his conduct of proceedings in which the plaintiff was the solicitor for the other party. In rejecting the plaintiff’s contention that he was a person aggrieved for the purposes of section 82(2)(d) of the Act, White J said:[25]
In my opinion, subs (2)(d) can be understood as using a shorthand composite expression to vest standing in those persons who have a particular kind of relationship with the charged unprofessional or unsatisfactory conduct. Complainants will establish that relationship if they show that, on the hypothesis that the charged professional or unsatisfactory conduct did occur, they are persons who, considered objectively, are really and directly affected by that conduct. If subs (2)(d) is understood in this way, meaning is given to all its words. Accordingly, complainants will not establish standing if their interest is no more than academic, emotional or of an intermeddling kind.
Adapting the language of White J to the present case, it is my view that the plaintiff was “really and directly affected” by the alleged misconduct of the Practitioners. His interest in the subject matter of the complaint was more than “academic, emotional or of an intermeddling kind.”
White J was, of course, concerned with a different issue, namely the statutory test for standing to commence proceedings in the Tribunal, as opposed to the general law test for standing to review a decision of the Commissioner in respect of a complaint made to him. The former may involve a broader and more liberal test, or at least a greater focus on the effect of the alleged misconduct on the plaintiff (as opposed to the effect of the Commissioner’s decisions upon the plaintiff). However, given they involve the same underlying subject matter, it seems to me that similar considerations will be relevant in both situations.
[23] [2013] SASC 99.
[24] McLeod v Legal Profession Conduct Commissioner [2016] SASC 151, [73]-[76].
[25] [2013] SASC 99, [63].
I adopt the remarks of Doyle J.
The defendant submitted that the decision in McLeod can be distinguished on the facts. There were said to be a number of factual differences but in my view none are material. For example the defendant submitted that one difference on the facts was that the conduct of the practitioners in McLeod had allegedly materially affected his appeal process. The allegation here is that the conduct of the practitioner materially affected the trial process. I can see no material difference.
Further the defendant submitted that the purpose of the amendments of the Act leading to the appointment of a Commissioner was to reduce the demand on the Tribunal and to avoid the need for Tribunal proceeding where there is no dispute that the practitioner has acted wrongly. Thus it was submitted that judicial review was not intended to be the vehicle to resolve a dispute concerning misconduct. I agree with that submission. Judicial review is not to be used to review the merits of a matter. The jurisdiction of the court to review administrative action does not go “beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power”.[26] Judicial review remedies administrative injustice or error. It draws the distinction between a decision’s merits and its legality.[27]
[26] Attorney General v Quinn (1990) 170 CLR 1, 36.
[27] Ibid.
However, these submissions do alter the position as to whether the plaintiff has standing.
In my view it would an odd result that a complainant, who has been allegedly affected by the conduct of a practitioner, would not have standing to bring judicial review proceedings against the decision maker on the complaint.
I am satisfied, on the balance of probabilities, that the plaintiff has standing. I agree with the observations of Mr McCarthy that simply because the plaintiff may have standing does not entitle him to have a substantive or merits based review of the determination. Review must be confined to consideration of the lawfulness of the determination in accordance with the grounds available to the plaintiff.
Discretionary refusal to entertain judicial review
Courts have an inherent discretion to withhold judicial review remedies in certain circumstances even though the grounds have been established.[28] Further I accept that the failure by a plaintiff to pursue an alternative remedy may result in that discretion being exercised to refuse the remedy sought.[29] The case for discretionary refusal is weakened where no appeal lies from the impugned decision.
[28] Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.
[29] Sarkis v Greyhound Racing New South Wales [2015] NSWSC 1987.
I agree with the remarks of Doyle J on this topic. He stated:[30]
However, before reaching a conclusion that it is appropriate to exercise the court’s discretion to decline the relief sought on the ground that an alternative remedy is available, it is necessary to give close attention to the nature of the alternative remedy. It has been said that the relevant consideration is whether there is an alternative remedy that is no less efficacious than the proposed judicial review proceedings,[31] or is an equally effective and convenient remedy.[32]
The obvious case in which the discretion might be exercised against a plaintiff seeking judicial review is where that plaintiff has a statutory right of appeal against the relevant decision, but seeks instead to judicially review that decision. Depending upon limitations that might exist in relation to the right of appeal, an appeal may be just as efficacious as judicial review proceedings in addressing the plaintiff’s concerns. Indeed, given that appeals generally extend to merits based challenges to a decision, they are often more efficacious than judicial review.
While this is the ordinary case in which the discretion will be exercised against the plaintiff, the discretion is not confined to situations involving an alternative remedy in the form of a right of appeal. However, in all cases there will need to be close consideration of the nature and effectiveness of the alternative remedy or remedies relied upon as warranting an exercise of the court’s discretion not to grant the relief sought. Where a no less efficacious alternative remedy exists, this will be a powerful consideration in favour of an exercise of the court’s discretion not to grant the relief sought. However, it is not conclusive. In some cases there may nevertheless be good reason to grant the plaintiff the relief sought despite the existence of an alternative remedy.[33]
[30] McLeod v Legal Profession Conduct Commissioner [2016] SASC 52, [80]-[82].
[31] Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501, 529 [138].
[32] Carnley v Grafton Ngerrie Local Aboriginal Land Council [2010] NSWSC 837, [101].
[33] Jackson v Chrisp [2013] WASC 380, [30]; R v Chief Constable of the Merseyside Police; Ex parte Calveley [1986] QB 424, 433.
It was accepted by the defendant that the Act does not afford the plaintiff a right of appeal to the Tribunal in respect of the Commissioner’s determination of 27 August 2015. The defendant submitted, however, that the plaintiff has a right under s 82(2)(d) of the Act to commence fresh proceedings against the practitioner in the Tribunal. It can be accepted that he has that right. However it could not be said that such a right is an equally effective and convenient remedy.
Further such a procedure does not consider the lawfulness of the defendant’s decision. The same criticism can be made if the plaintiff were to pursue a civil case against the practitioner.
However, on balance, I do not consider that this right is sufficient, in the circumstances of this case, to deprive the plaintiff of his remedies if his claim otherwise is successful.
Conclusions
I find the plaintiff has standing. I would not exercise the discretion to refuse the plaintiff his remedies if he is otherwise successful in these proceedings.