Legal Profession Conduct Commissioner v McCardle

[2024] SASCFC 3

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

LEGAL PROFESSION CONDUCT COMMISSIONER v MCCARDLE

[2024] SASCFC 3

Decision of The Full Court  

(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice S David)

3 December 2024

COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - GENERALLY

The Legal Profession Conduct Commissioner seeks an order that the name of the respondent (the practitioner) be struck off the roll of legal practitioners maintained by this Court.

The practitioner opposes this application.

The practitioner filed an interlocutory application dated 27 November 2024, seeking, amongst other orders, that Livesey P disqualify himself from hearing the matter and that the appeal be adjourned from its listing date of 6 December 2024.

Held (the Court) dismissing the applications to disqualify and adjourn:

1.The applicant has not demonstrated or raised any matter that would suggest that the judge may not bring an impartial mind to the determination of this case.

2.The applicant has not shown how the further materials sought are relevant to the determination of this matter. No basis for an adjournment has been disclosed.

Legal Practitioners Act 1981 (SA) s 89, referred to.
Charisteas v Charisteas (2021) 273 CLR 289; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419, considered.

LEGAL PROFESSION CONDUCT COMMISSIONER v MCCARDLE
[2024] SASCFC 3

Full Court – Civil: Livesey P, Doyle and David JJA

Introduction

1. By originating application filed on 26 August 2024, the Legal Profession Conduct Commissioner (the Commissioner) seeks an order that the name of the respondent, Ms Roxanne McCardle (the practitioner) be struck from the roll of legal practitioners. The application is made pursuant to ss 89(1) and 89(1)(a) of the Legal Practitioners Act 1981 (SA) and pursuant to the Court’s inherent jurisdiction.

2. The practitioner opposes the application.  The application is listed for hearing in the Full Court at 10.15 am on Friday, 6 December 2024.

3. On 27 November 2024, the practitioner filed an interlocutory application and accompanying affidavit seeking a large number of orders.

   Interlocutory application

4. The orders sought by the practitioner include:[1]

   1.That the Commissioner’s application is dismissed, or alternatively that the proceedings are transferred to Queensland;

   2.in the alternative, the final hearing fixed for 6 December 2024 is adjourned to a date not before April 2025;

   3.that the practitioner provide an undertaking not to practice in law prior to any final hearing;

   4.that the Commissioner respond to the practitioner’s notice to admit served on 15 November 2024;

   5.that the practitioner has permission to issue subpoenas to the Commissioner, to the Regulators in Western Australia, to the Federal Circuit and Family Court of Australia and to Elizabeth Nicholson;

   6.that the practitioner has permission to adduce further evidence in relation to Family Court documents; that the Commissioner must provide full disclosure to the practitioner;

   7.that the Regulators in Western Australia must provide full disclosure to the practitioner; and

   8.that Livesey P give due consideration to recusing himself from hearing the matter further, due to apprehended bias.

   [1]     Numbering added for ease of reference.

5. In advance of the hearing listed for 6 December 2024, it is only necessary to address the applications to dismiss or for transfer (proposed order 1), for an adjournment (order 2) and for disqualification (order 8). 

6. The balance of the applications can be addressed at the hearing.

7. The Commissioner opposes orders 1 and 2 and contends that there is no basis for order 8.

   Adjournment

8. The practitioner has applied for an adjournment.  The chief reason for the adjournment is that the practitioner has sought a large number of documents by way of various summonses and subpoenas, as well as a response to a notice to admit, and she says she cannot be ready to proceed on Friday without that material. 

9. The practitioner was directed to address in writing why this further evidence was relevant having regard to s 89(5) of the Legal Practitioners Act 1981 (SA), given the adverse findings made by the State Administrative Tribunal (WA) and the Legal Practitioners Disciplinary Tribunal of South Australia.

10. The practitioner’s submissions do not address these matters, and instead attack the propriety of the conduct of the Legal Profession Conduct Commissioners, their senior counsel, and others.  This also forms the basis for the application to dismiss.  Some of the applicant’s submissions and assertions are scandalous.

11. The application to transfer is based on the applicant’s residence in Queensland, but overlooks that this Court, rather than a Queensland court or tribunal, has primary jurisdiction under statute and at general law concerning the determination of an application to strike-off a practitioner admitted by this Court. 

12. The forensic utility, let alone relevance, of the further evidentiary material has not been shown and no proper bases for dismissal, transfer or an adjournment have been disclosed. 

13. The hearing will proceed on Friday.

    Disqualification

14. The practitioner contends that Livesey P should disqualify himself from hearing the matter on the basis of past matters his Honour has been involved with as a barrister.  Specifically, the practitioner relies on the cases of “Mr Peter Macks and the closeness of that case involving also Mr Greg May against Mr John Viscariello and the liquidation of the latter’s linen company”.[2]

    [2]    Interlocutory Application dated 27 November 2024, order 10.

15. The practitioner asserts that there is a conflict of interest due to Livesey P’s prior representation of Mr Macks, who on the practitioner’s understanding was “later prosecuted by ASIC and suspended from practicing as a liquidator for a period of time … due to falsified document[s] being provided to Mr Macks”, and Mr Macks’ “close proximity to Mr May and their joint conduct against Mr Viscariello”.[3]

    [3]    Affidavit of Ms McCardle dated 27 November 2024, [6]. 

16. The practitioner provides no further explanation or details. Having considered the application and the very limited material offered, the proposition that the prior representation of Mr Macks by Livesey P more than a decade ago gives rise to the requisite apprehension of bias must be rejected.  In any event, the applicant has not identified: [4]

    1.the precise matter which it is said might lead the judge to resolve the Commissioner’s application, and the practitioner’s associated applications, other than on their legal and factual merits;

    2.the logical connection between that matter and the apprehended deviation from deciding the issues on their merits; and

    3.an assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

    [4]    Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [8]; Charisteas v Charisteas (2021) 273 CLR 289, [11].

17. No attempt has been made to satisfy the criteria laid down in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[5]  The requisite criteria have not been established.

    [5]     QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419.

18. That application must be dismissed.

    Conclusion

19. The applications to dismiss, adjourn and disqualify are dismissed, with costs reserved to the Full Court.