Legal Profession Conduct Commissioner v Belperio

The Legal Profession Conduct Commissioner (the Commissioner) appealed to the Supreme Court of South Australia against a decision of the Disciplinary Tribunal to dismiss a charge of professional misconduct laid against Mr Belperio (the Practitioner). The charge arose from a complaint investigated by the previous Commissioner, Mr May, who determined to lay a charge shortly before his term expired. The current Commissioner, Mr Keane, subsequently laid the charge in the Tribunal. The Practitioner contended that the charge was an abuse of process, arguing that the requisite threshold for laying a charge had not been satisfied and that Mr Keane had failed to undertake an independent evaluation of the evidence.

The central legal issues before the Supreme Court were whether the Commissioner had properly exercised the power to lay a charge under the relevant legislation, and whether the Tribunal had erred in dismissing the charge. Specifically, the Court was required to consider the interpretation of sections 77K, 77L, and 82 of the *Legal Practitioners Act 1981* (SA) (the Act), and the extent to which a successor Commissioner must independently evaluate the evidence and reasons of a predecessor before laying a charge. The Court also had to determine whether the Tribunal’s finding that the Commissioner had failed to follow the statutory regime for laying charges was correct.

The Supreme Court, comprising Kourakis CJ, Bleby and Stein JJ, allowed the appeal. The Court reasoned that the Tribunal had erred in its interpretation of the Act. It held that the office of Commissioner is a statutory office, and that a successor Commissioner is entitled to rely on the investigations and determinations of their predecessor. The Court found that the Tribunal’s conclusion that Commissioner Keane had failed to undertake an independent evaluation was based on a misinterpretation of the statutory scheme. The Court emphasised that section 82 of the Act is a machinery provision that confers standing on the Commissioner to lay a charge, and that the Tribunal’s restrictive interpretation, which would require a wholesale re-evaluation of evidence by each successive Commissioner, was not supported by the legislative history or the purposive approach to statutory interpretation. The Court concluded that the Tribunal had incorrectly applied the principles from *Viscariello v Livesey & Anor* and had failed to consider the overall scheme of the Act.

The Supreme Court set aside the Tribunal’s order dismissing the charge and remitted the matter to the Tribunal to be heard and determined according to law.