Kawicki v Legal Services Commissioner

[2002] NSWSC 1072

CITATION:	Kawicki v Legal Services Commissioner & Anor [2002] NSWSC 1072
FILE NUMBER(S):	SC 30034/02
HEARING DATE(S):	07/11/02
JUDGMENT DATE:	15 November 2002
PARTIES :	Mr T Kawicki (Plaintiff) Legal Services Commissioner (First Defendant) Nicholas Cowdery (Second Defendant)
JUDGMENT OF:	Burchett AJ

COUNSEL :	T Molomby SC, R Rasmussen (Plaintiff) N Perram (First Defendant) R McHugh (Second Defendant)
SOLICITORS:	Carneys Lawyers (Plaintiff) Legal Services Commission (First Defendant) I V Knight Crown Solicitor of New South Wales (Second Defendant)
CATCHWORDS:	Legal Practitioners - Position of Director of Public Prosecutions - Whether advice given to Attorney-General was "in connection with the practice of law" - Whether complaint to Legal Services Commissioner was properly dismissed - Questions arising under ss127 and 155 of the Legal Profession Act 1987
LEGISLATION CITED:	Director of Public Prosecutions Act 1986 Legal Profession Act 1987
CASES CITED:	Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Murray v Legal Services Commissioner (1999) 46 NSWLR 224 Nye v State of New South Wales (unreported, 27 September 2002) Palmer v R (1992) 106 ALR 1 Tadeusz Kawicki (1995) 82 A Crim R 191 The Queen v The Australian Broadcasting Tribunal: Ex parte Hardiman (1980) 144 CLR 13
DECISION:	Application dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Burchett AJ

15 November 2002

30034/02 Ted Kawicki v Legal Services Commissioner and Nicholas Cowdery

JUDGMENT

1 The plaintiff claims a declaration that Mr Nicholas Cowdery QC, the Director of Public Prosecutions of New South Wales, in writing certain letters dated 29 March 1996 and 17 September 1996 to the Director General of the Attorney-General’s Department of New South Wales, was acting in connection with the practice of law; and an order setting aside the decision of the Legal Services Commissioner dismissing on 4 February 2002 a complaint of professional misconduct made by the plaintiff against Mr Cowdery.

2 The origin of the dispute before the Court was the trial and conviction of the plaintiff, at a hearing before Karpin DCJ and a jury, upon a charge of knowingly maintaining an escaped prisoner, and the subsequent quashing of that conviction by the Court of Criminal Appeal: Tadeusz Kawicki (1995) 82 A Crim R 191. In an ex tempore judgment, Allen J held (at 192) that “the conviction was unsafe and unsatisfactory”. His Honour considered that the actus reus had been shown, but that the mens rea required to be demonstrated by the Crown involved knowledge that the escaped prisoner assisted by the appellant was an escaped prisoner at the time the assistance was rendered; and that there was simply insufficient evidence to establish beyond a reasonable doubt when the requisite knowledge was acquired. Referring to Palmer v R (1992) 106 ALR 1, his Honour concluded (at 194) that “no reasonable Jury could have failed to entertain a doubt”. Therefore, “[i]t follow[ed] from that alone that the verdict must be quashed”.

3 Having disposed of the substance of the appeal in the manner I have indicated, his Honour added (at 194 - 195) some further remarks, as follows:

“ There is a further matter, however, of which I would make mention. Evidence was given….that prior to Spence [a co-accused] coming out of gaol, Brown [another party involved, who gave evidence for the Crown] and the appellant visited him there. An immediate indication was made by counsel, then appearing for the appellant, that if that evidence was to be adduced then a separate trial should be granted to the appellant. The basis of the application was that the appellant would be saddled, in the mind of the jury, with the stigma that he was an associate of a criminal – in that he had visited a criminal in gaol. The learned trial Judge rejected that application. She indicated quite directly, and correctly, to the jury that the fact that someone visits another in gaol is not the slightest indication of any improper association or of any propensity towards criminal acts. Nevertheless, it must be said that the circumstances of this trial were such that, albeit I do not cavil with her Honour’s ruling, there was a grave risk that prejudice to the appellant would follow. He sat in the dock with Spence, who the jury knew had been serving a sentence of imprisonment until about two weeks or so before Hudd’s re-arrest [Hudd was the escaped prisoner named in the indictment]; and it was aware that the appellant had been associating with Hudd out of gaol – albeit that the appellant claimed it was just a friendly association with a man he knew as Anthony Parkin. The jury also was aware that Brown had an extensive criminal record, including convictions for dishonesty and drug related matters.
If one seeks for some explanation of this rather remarkable conviction it lies, perhaps, in the prejudice which the appellant suffered because of that evidence – notwithstanding her Honour’s proper efforts to remove such prejudice and the jury’s awareness that the appellant did not himself have a criminal record.
There is a further matter which concerns me. It is that the prejudice was far greater than it need have been. Certainly, it was part of the Crown case against Spence that Spence had been in the same gaol as Hudd – with ample opportunities for them to meet and come to arrangement as to what would happen in the future. But it was wholly unnecessary, on the Crown case, for evidence to be adduced that on the occasion Brown visited Spence in gaol the appellant went with him. That added nothing to the Crown case. But it introduced risk of prejudice to the appellant. That evidence should not have been admitted. Indeed, it should not have been sought to be admitted.
Where there are joint trials the Crown should be astute to avoid risk of unnecessary prejudice arising. In this case, in the respect to which I have referred, it was not astute. In the result I propose that the conviction be quashed.”

4 After Allen J had delivered these reasons first, at the invitation of the presiding Judge, Kirby ACJ then added for himself (at 195):

“I agree with the orders which have been proposed by Allen J. I agree generally with his reasons. I agree that the conviction and the verdict of the jury upon which the conviction was based were unsafe and unsatisfactory.”

Dowd J contented himself with stating (at 195):

“I concur in the reasons given by Allen J and agree with the orders proposed.”

5 Following his acquittal by order of the Court of Criminal Appeal, the plaintiff wrote to the Attorney-General enclosing a copy of the Court’s judgment, and seeking a substantial ex gratia payment. Relevantly to the present matter, he complained about the trial process and the general management of the prosecution by the office of the Director of Public Prosecutions; in particular, as Mr Cowdery subsequently explained, the essence of the complaint was that “the prosecution had relied upon guilt by association and denied him natural justice”. The Attorney-General’s Department referred the plaintiff’s letter to Mr Cowdery as Director of Public Prosecutions. It seems clear that the department desired to have his recommendation, which he furnished in the context of the allegations Mr Kawicki had made and of the fact that Mr Kawicki had referred to and attached a copy of the judgment of the Court of Criminal Appeal. Mr Cowdery’s response was conveyed in his letter of 29 March 1996 to the Director General of the Attorney-General’s Department. There had apparently been a lengthy delay in the obtaining of the file, which would have been quite old by then, and the reply was sent the same day that the file had been received. It noted that the complaints had been “set out comprehensively” by Mr Kawicki, and it responded by recounting the history of the matter in some detail and in terms to which no exception is taken. Then, on page 3 of the letter, Mr Cowdery stated:

“Mr Kawicki was successful in his appeal to the Court of Criminal Appeal where the conviction was found to be unsafe and unsatisfactory. In particular, the Court held that it was not reasonably open to a jury to find that Mr Kawicki was aware at the time of the loan to Hudd, that Hudd was an escapee because the evidence in this regard was meagre. The Court also indicated that the circumstances of the trial were such that there was a grave risk of prejudice to Mr Kawicki – although the Court did not cavil with the rulings made by her Honour Judge Karpin, the trial Judge.
It is my view that this prosecution was correctly brought and carried out. Inferences were available from the taped conversations which warranted the case continuing. Mr Kawicki had a fair trial with adequate warnings from the trial Judge as to any possible prejudice flowing to him. The Court of Criminal Appeal took a certain view of the evidence but in my view the matter was one that had to be determined by a jury. There was no relevant delay from arrest to trial.
I recommend against the making of an ex gratia payment.”

6 I should say at once that what the plaintiff now complains about in respect of this letter is, first, the statement that the Court did not cavil with the rulings made by the trial Judge, and, secondly, the expression of the view of the Director of Public Prosecutions, that the prosecution was correctly brought and carried out, without any express acknowledgement that the Court of Criminal Appeal had thought otherwise. These criticisms lose a great deal of their force as soon as it is appreciated that the statement about the Court not cavilling with the rulings of the trial Judge is an almost direct reflection of the language of Allen J, while the plaintiff, in finding fault with Mr Cowdery’s treatment of the fairness of the prosecution, is perhaps himself rather less than fair; for Mr Cowdery expressly acknowledged that the Court of Criminal Appeal “took a certain view of the evidence”, a comment which, in the context, must have been taken by the reader as an acknowledgment that the Court’s view was different from that of the Director of Public Prosecutions. This would have been so even if the department had not already had a copy of the judgments of the Court, but since it did have a copy of those judgments there was no reasonable room for misunderstanding.

7 Following Mr Cowdery’s letter of 29 March 1996, a further letter was received by him from the Attorney-General’s Department dated 14 August 1996, which raised two specific questions evoked by a further letter to the department from Mr Kawicki’s solicitors. The Director of Public Prosecutions replied by a letter dated 17 September 1996, the terms of which make it clear that Mr Cowdery was confining himself to answering the questions he had been asked. In doing so, he was clearly entitled to understand that the recipient of this letter remained well aware of the terms of the judgments of the Court of Criminal Appeal, since one of the questions contained a direct quotation from the judgment of Allen J, and each of the questions plainly reflected the issues raised by that judgment, so stated as to involve a consideration of its details. The first question asked “whether you consider the impact of Crown evidence that the defendant accompanied Brown when he visited Spence in gaol was prejudicial and that adducing such evidence represents an error on the part of the prosecution (as asserted by Mr Carney [Mr Kawicki’s solicitor])”. Mr Kawicki complains that the Director of Public Prosecutions quoted this question without making it clear that the assertion stemmed from the view taken by Allen J. However, Mr Cowdery was only quoting the question he was asked, and quoting it, as I have said, in circumstances where he had no reason to doubt that the source of the comment was well understood. There is a further complaint that he expressed a view contrary to that of the Court, but he did so in response to a question which explicitly asked for his own opinion on a passage which may well have been regarded as an obiter dictum rather than the ground of the Court’s decision. Lawyers are regularly asked to consider the correctness of court judgments, which may be challenged by appeal or otherwise. It cannot be inappropriate for a public official such as the Director of Public Prosecutions to assert his own view on an issue falling directly within his statutory responsibility. As Lord Atkin famously declared in Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 at 335:

“[N]o wrong is committed by any member of the public [much less, it may be thought, an official called upon to comment] who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice…Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”

Mr Cowdery asserted his opinion in the following terms:


“The Crown sought to lead this evidence, over objection from the defence, for a specific reason: namely, and as stated to the jury by the trial judge, because it was part of the fabric of the Crown case that the accused Spence knew Hudd in the prison system and knew accordingly that he was an escapee.

The evidence was of course prejudicial against Mr Spence and also against Mr Kawicki and this was acknowledged by the trial judge in her judgment on the admissibility of the evidence. Her comments are adopted, that in the circumstances of a joint trial the Crown was entitled to adduce that evidence and seek to have any prejudice to Mr Kawicki dealt with by strong directions to the Jury as to the way in which the evidence could be used and more specifically the way it could not be used against Mr Kawicki.

In summary, the evidence was led for a legitimate purpose against the accused Spence and the Crown relied on the directions of the trial judge to ensure Mr Kawicki received a fair trial. In my view this occurred. I note that Justice Allen, although of the belief that prejudice did flow to Mr Kawicki, stated he did not cavil with the ruling of the trial judge. I adhere to my view that it was not an error to lead such evidence.”

8 A further complaint is made by counsel for Mr Kawicki concerning the penultimate sentence in this passage. It is suggested the comment about Allen J not cavilling with the ruling of the trial Judge was misleading since Allen J had also said the evidence should not have been admitted. However, the fact is that Allen J did use the words Mr Cowdery quoted, and if there was confusion, it seems to me, with respect, it flowed from the terms of the ex tempore judgment itself. Ex tempore judgments are not always as easy to read as judgments the final expression of which is the result of many drafts. Counsel for Mr Kawicki asserts that Allen J was simply saying he did not cavil with the decision of the trial Judge not to order separate trials; but the difficulty with this view is that the judgment itself makes plain the fact that separate trials were only sought as a remedy to avoid the prejudice of the evidence to which objection had been taken, so that the ruling in question was inextricably bound up with the reception of the evidence. In any case, Mr Cowdery’s comment acknowledges Allen J’s “belief that prejudice did flow to Mr Kawicki”, so the reference to his not cavilling with the ruling cannot suggest that the Court did not consider the conduct of the trial to have been infected with error. Nevertheless, Mr Cowdery expressed, as he was entitled to do, his own opinion that there was no error.

9 The matter was raised yet again in a personal letter written by counsel for the plaintiff on 4 July 2000 to the then new Attorney-General. The two points stated in this letter were that the Director of Public Prosecutions had made his recommendation “without acknowledging the Court’s criticism” – a comment I have already indicated I think is wide of the mark, since the recommendation was made directly in the context of that criticism – and that the reference to the Court not cavilling with the rulings of the trial Judge “was wrong and misleading” since it related, counsel asserted, to “a completely separate issue, the rejection of an application for a separate trial”. I have already made it clear that I do not think it is correct to regard the rejection of the application for a separate trial in this light. Counsel’s letter was, however, referred to Mr Cowdery, who responded on 10 August 2000 with a brief reference to his letters of 29 March and 17 September 1996, concluding with the statement: “I have nothing further to add”.

10 Mr Kawicki then wrote directly to the Director of Public Prosecutions on 22 September 2000, reiterating the complaints previously made. Mr Cowdery replied that he was not persuaded there was any need to alter the advice he had given.

11 There followed a complaint by Mr Kawicki to the New South Wales Ombudsman, made on the basis that Mr Cowdery’s “conduct in this matter does not involve his prosecution functions”, and so was amenable to review by the Ombudsman. This proposition raised the question what functions were involved, and if those functions were those of a high public official advising the Attorney-General on whether an ex gratia payment ought to be made by the Crown, whether they were the functions of a legal practitioner open to be reviewed by the Director of Legal Services.

12 On 26 April 2001, Mr Kawicki wrote to the Legal Services Commissioner a letter raising a complaint about the advice furnished by the Director of Public Prosecutions to the Attorney-General’s Department, in relation to his claim for an ex gratia payment, by the three letters of 29 March 1996, 17 September 1996 and 10 August 2000. He alleged these letters were ”seriously misleading”. He asserted there was involved “intellectual dishonesty of a high order” and “deliberate and knowing misrepresentation of the judgment of the Court of Criminal Appeal”. The Legal Services Commissioner responded by letter dated 16 May 2001 that it was “plain” the advice in question “was policy advice from the Director of Public Prosecutions”, not given “in the course of practice as a legal practitioner”. The Legal Services Commissioner pointed out that “Mr Cowdery is quite within his rights to express his interpretation of the judgment of the Court of Criminal Appeal”, and that a differing view would not show professional misconduct. Mr Kawicki returned to the attack by a letter of 11 January 2002, expressed in somewhat intemperate terms, in which he described Mr Cowdery’s adherence to his view that it was not an error to lead the evidence of the gaol visit as “effrontery”, and the previous response of the Legal Services Commissioner as “ridiculous”. On the same day, Mr Kawicki made a further formal complaint to the Legal Services Commissioner referring to the same three letters written by the Director of Public Prosecutions and asserting, among other things, that in those letters Mr Cowdery was “deliberately concealing the effect of the judgment of the Court of Criminal Appeal, and deliberately misleading the Department.” In addition, the complaint refers to Mr Cowdery’s response to the Ombudsman as continuing his “established pattern of dishonest evasion”. It is with the decision of the Legal Services Commissioner upon this last complaint that the present proceeding is concerned.

13 In his decision, the Legal Services Commissioner referred to section 127 of the Legal Profession Act 1987. That section in part provides:

“(1) For the purposes of this Part, professional misconduct includes:

(a) unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence, or
(b) conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners, or

…..
(2) For the purposes of this Part:
unsatisfactory professional conduct includes conduct (whether consisting of an act or omission) occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.”

The Legal Services Commissioner pointed out the distinction, made by these provisions, between unsatisfactory professional conduct occurring “in connection with the practice of law” and “ professional misconduct” that “would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners”. He concluded:

“Mr Cowdery is a legal practitioner. However, his role as Director of Public Prosecutions is defined by the Director of Public Prosecutions Act, which confers certain statutory powers, duties and other functions upon him. It has consistently been the view of this Office that, in exercising these statutory functions, the Director of Public Prosecutions is not engaged in conduct ‘in connection with the practice of law’.”

14 The Legal Services Commissioner went on to find that the “essence of [Mr Kawicki’s] complaint is that Mr Cowdery has deliberately misrepresented the judgment of the Court of Criminal Appeal on a number of occasions and has improperly denied doing so.” On this issue, the decision makes reference to section 155 of the Legal Profession Act, and concludes:

“I am not satisfied that there is ‘reasonable likelihood’ of a finding of misconduct by the disciplinary tribunal. I have reached this conclusion irrespective of whether Mr Cowdery’s conduct could be considered to be in connection with the practice of law or other than in connection with the practice of law.”

In order to understand the reference to section 155, and the application made of this section, it is necessary to set out its relevant provisions, as follows:

(1) After a Council or the Commissioner has completed an investigation into a complaint against a legal practitioner, the complaint is to be dealt with in accordance with this section.
(2) The Council or the Commissioner must institute proceedings in the Tribunal with respect to the complaint against the legal practitioner if satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct.
(3) However, if the Council or the Commissioner is satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct (but not professional misconduct), the Council or the Commissioner may instead:
(a) reprimand the legal practitioner if the legal practitioner consents to the reprimand, or
(b) dismiss the complaint if satisfied that the legal practitioner is generally competent and diligent and that no other material complaints have been made against the legal practitioner.
(4) The Council or the Commissioner is to dismiss the complaint against the legal practitioner if satisfied that there is no reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct.”

15 In the result, the Legal Services Commissioner, believing it to be correct that Mr Cowdery’s conduct was not in connection with the practice of law, considered it was “certainly not open to [him] to institute disciplinary proceedings” in reliance on section 127 (1) (b), where a finding of professional misconduct would require conduct to be shown that “would justify a finding that [the] legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners”. But he also concluded that, even if Mr Cowdery’s conduct “could be considered to be in connection with the practice of law”, he was “not satisfied that there is a ‘reasonable likelihood’ of a finding of misconduct by the disciplinary Tribunal”.

16 Two broad issues are raised by the decision of the Legal Services Commissioner. The first is whether he was correct in his view that the conduct complained of was not, within the meaning of section 127 of the Legal Profession Act, “conduct….occurring in connection with the practice of law”. The second is whether his decision not to institute proceedings in the Tribunal with respect to the plaintiff’s complaint was infected by any error of law.

17 So far as the first question is concerned, it is not in dispute that the conduct complained of occurred in the course of Mr Cowdery’s responses to requests made by the Attorney-General. Mr Cowdery held the office of Director of Public Prosecutions, an office created and governed by the terms of the Director of Public Prosecutions Act 1986. Section 7 of that Act specifies the “principal functions and responsibilities” of the Director of Public Prosecutions, and section 25 imposes on him a particular responsibility, “if requested to do so by the Attorney General”, to “consult with the Attorney General with respect to matters concerning the exercise of the Director’s functions”. In the present case, the question was whether the circumstances of a particular prosecution, and the manner in which it had been carried out, should or should not lead the Executive Government of New South Wales to make an ex gratia payment to the plaintiff. Mr Cowdery was consulted as to his views on this question. It seems to me that, in the circumstances, certain conclusions reached by O’Keefe J in Nye v State of New South Wales (unreported, 27 September 2002) are apposite. His Honour held (at paragraph 11):

“ The foregoing principal functions [that is, the functions set out in section 7 of the Director of Public Prosecutions Act] are, of their very nature, administrative or executive. Such functions envisage the Director acting as the surrogate for the Crown (s7 (1)), or in lieu of the Attorney-General (s7 (2)). The principal functions cannot, in my opinion, be said to have as their dominant purpose the obtaining or giving of legal advice, nor the bringing into existence of documents for use in litigation, other than perhaps a bill of indictment or charge or nolle prosequi .”

Even more to the point are his Honour’s remarks in paragraph 20:

“The existence of the Office of Solicitor for Public Prosecutions and the functions conferred on such officer in my opinion support the conclusion that the Director is not and does not perform functions as a solicitor or barrister. In the terminology of the Legal Profession Act 1987, the Director is not, and does not act as, a legal practitioner in the exercise of his statutory functions. Indeed, the functions performed by the Director are largely administrative in nature. The Director is in many instances the client of the Solicitor for Public Prosecutions and in other instances is exercising statutory functions conferred by the Act.”

In my opinion, I should follow this authority.

18 The second of the issues raised by the decision requires some consideration to be given to the terms of section 155 of the Legal Profession Act. The section applies when the Commissioner “has completed an investigation into a complaint against a legal practitioner”, and requires that then “the complaint is to be dealt with in accordance with this section”. Counsel for the plaintiff suggested that the completion of an investigation would require the Legal Services Commissioner to notify the legal practitioner concerned and seek his response to the complaint. Murray v Legal Services Commissioner (1999) 46 NSWLR 224 was cited as authority for this proposition. However, that case turned on the decision of the Court of Appeal that the legal practitioner was entitled to be heard before being subjected to an adverse determination under section 155. Nothing in the decision or reasoning of the Court of Appeal would require the Legal Services Commissioner to seek to involve the practitioner in a case where no determination adverse to him was in contemplation. The Act does not lay down requirements that must be satisfied by an investigation where a case is not summarily dismissed under section 139, which provides for summary dismissal in various circumstances. That being so, it seems to me it is left to the Legal Services Commissioner to decide, in each particular case, how to go about the necessary investigation, guided by the circumstances and the scope and purposes of the legislation. If a consideration of the terms of a detailed complaint, and a study of documents submitted with it or otherwise available to the Commissioner, are sufficient, in his opinion, to enable him to reach a decision, I do not think there is anything in section 155 to require him to refrain from doing so until some further step has been taken.

19 It is, I think, important to observe that the criterion set by section 155 is the satisfaction of the Legal Services Commissioner. In this respect, the decision to be taken under the section is similar to that of the Minister in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 as explained in the joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ at 274 – 276. As was there pointed out, a decision of this kind can be reviewed by the courts if it is not made in good faith, or the authority making it has misdirected itself in law, or has failed to consider matters it was required to consider, or has taken irrelevant matters into account, or the decision is so unreasonable that no reasonable authority could properly have arrived at it. Their Honours added (at 276):

“However, while the subjective nature of the decision no longer can be said to immunise the decision from review, it is necessarily of relevance to the issue of whether there has been an error of law.”

20 An analysis of the terms of section 155 reveals a difficulty, in so far as there is a lacuna in the logic of its formulation, but I think it would be wrong to fail to interpret the section in such a way as to remove the difficulty. What I am referring to is the fact that in subsection (2) it is provided “the Commissioner must institute proceedings in the Tribunal with respect to the complaint against the legal practitioner if satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty”, while subsection (4) provides “the Commissioner is to dismiss the complaint against the legal practitioner if satisfied that there is no reasonable likelihood that the legal practitioner will be found guilty”; but there is no express statement as to what the position will be if the Commissioner is unable to determine positively that there is a reasonable likelihood of a finding of guilt, and is also unable to determine that there is no reasonable likelihood of such a finding. Although the language leaves this possibility open, and makes no provision for it, and although there is a curious change of expression from “must institute” in subsection (2) to “is to dismiss” (not “must dismiss”) in subsection (4), I think the only reasonable construction is that which the Legal Services Commissioner appears to have adopted – if he is not able to be “satisfied there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal ”, he should dismiss the complaint. For unless he is so satisfied, he is not authorised by subsection (2) to institute proceedings in the Tribunal with respect to the complaint. This view seems to me to be consistent with the language used by Sheller JA (with whom Priestley and Stein JJA agreed) in Murray v Legal Services Commissioner at 247, where his Honour referred to “the required satisfaction” to be reached by the Commissioner.

21 In addition to the argument about whether the conduct of the Director of Public Prosecutions was “in connection with the practice of law”, and whether the Legal Services Commissioner’s investigation was completed, the plaintiff contended that the decision was so unreasonable that no reasonable person could have reached it; that irrelevant considerations were taken into account; and that the correct legal question under section 155 was not decided. I do not think any of these grounds of attack on the decision is made out. In my opinion, it was plainly open to the Commissioner to be satisfied that no aspect of the complaints was made out and, in particular, that if there was any error in any of Mr Cowdery’s letters, the elaborate nature of the circumstances said to show that error was consistent with the conclusion that it was merely a misunderstanding not falling within the relevant provisions of the Legal Profession Act. I am simply unable to see the basis on which it is contended that the Legal Services Commissioner’s decision is so unreasonable that no reasonable person could have reached it. For myself, I would have reached the same conclusion.

22 For these reasons, the plaintiff’s proceeding must be dismissed with costs. The Legal Services Commissioner was joined by the plaintiff as a defendant and counsel appeared for him. By reason of the decision of the High Court in The Queen v The Australian Broadcasting Tribunal:Ex parte Hardiman (1980) 144 CLR 13 at 17 (arguendo), 35 – 36, the argument presented for the Commissioner was of limited scope; however, in the circumstances, it seems to me that it was necessary for the Commissioner to appear, and his argument was of real utility. Accordingly, I do not think there should be any restriction of the order for costs in his favour. No objection was raised to the extent of the argument presented.

I certify that paragraphs 1 – 22
are a true copy of the reasons
for judgment herein of the
Hon. Acting Justice Burchett
given on 15 November 2002

___________________
Susan Piggott
Associate

15 November 2002

Last Modified: 12/13/2002