Leadpoint Pty Ltd v Legal Services Commissioner - [2015] QSC 254

SUPREME COURT OF QUEENSLAND

CITATION:

Leadpoint Pty Ltd v Legal Services Commissioner [2015] QSC 254

PARTIES:

LEADPOINT PTY LTD ACN 124 578 892
(applicant)

v

LEGAL SERVICES COMMISSIONER
(respondent)

FILE NO/S:

BS6635/15

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

1 September 2015

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2015

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1. The application for a statutory order of review is dismissed.

2. The applicant pay the respondent’s costs of the proceeding.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS UNDER AN ENACTMENT – GENERALLY – where the applicant made a complaint that a company was engaging in legal practice in contravention of section 24 of the Legal Profession Act 2007 (Qld) – where the respondent referred the complaint for investigation by the Queensland Law Society – where the Queensland Law Society made an investigation report and recommendation – where the respondent decided not to take any further action – where the applicant applied for a statutory order of review of the respondent’s decision to not take further action – where the respondent applied to dismiss the application for the statutory order of review – whether the respondent’s decision not to take any further action was a decision “made under an enactment”

Acts Interpretation Act 1954 (Qld), s 42
Judicial Review Act 1991 (Qld), ss 4, 20, 48
Legal Profession Act 2007 (Qld), sch 2, ss 24, 416, 426, 428, 429, 435, 436, 439, 446, 448, 590, 703, 708, 709

Eastman v Australian Capital Territory (2008) 163 ACTR 29; [2008] ACTCA 7, referred to
Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7, followed
Mid Brisbane River Irrigators Inc v The Treasurer and Minister for Trade of the State of Queensland [2014] 2 Qd R 592; [2014] QSC 196, referred to
Murphy v Legal Services Commissioner [2013] QSC 70, considered
Nona v Barnes [2013] 2 Qd R 528; [2012] QCA 346, referred to

COUNSEL:

A Morris QC for the applicant
J Bell QC and A Scott for the respondent

SOLICITORS:

Leadpoint Mortgage Services for the applicant
Legal Services Commission for the respondent

Jackson J: The respondent applies under s 48 of the Judicial Review Act 1991 (Qld) (“JRA”) to dismiss an application for a statutory order of review made under s 20 of the JRA (“the originating application”).

The originating application is for review of the respondent’s decision not to take any further action upon a complaint made by the applicant to the respondent.

The complaint was that First Mortgage Services Australia Pty Ltd (“FMS”) engages or has engaged in legal practice in Queensland. FMS is not an Australian legal practitioner or an incorporated legal practice. The applicant’s complaint is, therefore, that FMS contravenes or has contravened s 24 of the Legal Profession Act 2007 (Qld) (“LPA”).

Grounds of the application to dismiss

The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] QSC 254
Decision Date: 1 September 2015

CaseChat Overview and Summary

Leadpoint Pty Ltd filed an application against the Legal Services Commissioner, challenging the Commissioner's decision not to take any further action on a complaint that Leadpoint Pty Ltd had engaged in legal practice without authorisation. The Legal Services Commissioner had referred the complaint to the Queensland Law Society, which conducted an investigation and recommended further action. However, the Commissioner decided not to pursue the matter further, prompting Leadpoint to seek a statutory order of review in the Queensland Civil and Administrative Tribunal (QCAT).

The central legal issue was whether the Commissioner's decision not to take any further action on the complaint was a decision "made under an enactment" within the meaning of the Judicial Review Act 1991 (Qld). This determination was crucial as it would establish QCAT's jurisdiction to review the decision. Leadpoint argued that the Commissioner's decision was indeed made under an enactment, while the Commissioner contended that the decision was not subject to review as it was not a decision "made under an enactment."

The Tribunal found that the Commissioner's decision not to take any further action was not a decision "made under an enactment" as required by the Judicial Review Act. The decision was made in the Commissioner's discretion, based on the investigation report and recommendation from the Queensland Law Society. The Tribunal held that the decision did not constitute a reviewable decision under the Act because it was not a decision made pursuant to a statutory power or duty. Consequently, QCAT did not have the jurisdiction to review the Commissioner's decision.

Accordingly, the Tribunal dismissed Leadpoint's application for a statutory order of review and ordered that Leadpoint pay the Commissioner's costs of the proceeding. This decision underscored the importance of correctly identifying the nature of administrative decisions to determine the appropriate avenue for judicial review.

Orders

Orders of the court

The order of the court is that:

1. The application for a statutory order of review is dismissed.

2. The applicant pay the respondent’s costs of the proceeding.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Leadpoint Pty Ltd v Legal Services Commissioner [2015] QSC 254
PARTIES:	LEADPOINT PTY LTD ACN 124 578 892 (applicant) v LEGAL SERVICES COMMISSIONER (respondent)
FILE NO/S:	BS6635/15
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	1 September 2015
DELIVERED AT:	Brisbane
HEARING DATE:	24 August 2015
JUDGE:	Jackson J
ORDER:	The order of the court is that: 1. The application for a statutory order of review is dismissed. 2. The applicant pay the respondent’s costs of the proceeding.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS UNDER AN ENACTMENT – GENERALLY – where the applicant made a complaint that a company was engaging in legal practice in contravention of section 24 of the Legal Profession Act 2007 (Qld) – where the respondent referred the complaint for investigation by the Queensland Law Society – where the Queensland Law Society made an investigation report and recommendation – where the respondent decided not to take any further action – where the applicant applied for a statutory order of review of the respondent’s decision to not take further action – where the respondent applied to dismiss the application for the statutory order of review – whether the respondent’s decision not to take any further action was a decision “made under an enactment” Acts Interpretation Act 1954 (Qld), s 42 Judicial Review Act 1991 (Qld), ss 4, 20, 48 Legal Profession Act 2007 (Qld), sch 2, ss 24, 416, 426, 428, 429, 435, 436, 439, 446, 448, 590, 703, 708, 709 Eastman v Australian Capital Territory (2008) 163 ACTR 29; [2008] ACTCA 7, referred to Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7, followed Mid Brisbane River Irrigators Inc v The Treasurer and Minister for Trade of the State of Queensland [2014] 2 Qd R 592; [2014] QSC 196, referred to Murphy v Legal Services Commissioner [2013] QSC 70, considered Nona v Barnes [2013] 2 Qd R 528; [2012] QCA 346, referred to
COUNSEL:	A Morris QC for the applicant J Bell QC and A Scott for the respondent
SOLICITORS:	Leadpoint Mortgage Services for the applicant Legal Services Commission for the respondent