Livers v Legal Services Commissioner - [2020] NSWCA 317

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Livers v Legal Services Commissioner [2020] NSWCA 317
Hearing dates: 10 July 2020
Decision date: 10 December 2020
Before: Ward CJ in Eq at [1];
White JA at [2];
McCallum JA at [3].
Decision:
1.   Set aside the decision of the Civil and Administrative Tribunal made 27 November 2019.
2.   Dismiss the application by the Legal Services Commissioner for disciplinary findings and protective orders against the applicant.
3.   Legal Services Commissioner to pay the applicant’s costs of the appeal.

Catchwords:
OCCUPATIONS — Legal practitioners — Misconduct and discipline — where solicitor alleged to have deliberately misled statutory authority including by fraudulently altering a document in order to obtain a grant of funding for legal representation of a client — absence of any direct evidence that solicitor altered the document — whether circumstantial evidence capable of supporting allegations

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), s 4, Sch 5 cl 29(2)(b)
Legal Profession Act 2004 (NSW), s 497
Supreme Court Act 1970 (NSW), s 75A
Workers Compensation Act 1987 (NSW), ss 59A, 60, 66, 67
Workers Compensation Amendment (Existing Claims) Regulation 2014 (NSW)

Cases Cited:
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Brassaud v Chubb Fire Safety Ltd [2014] NSWWCC 202
Carr v Law Society of New South Wales [2020] NSWCA 276
Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7
Collet v Flying Solo Properties Pty Limited [2014] NSWWCC 388
Flying Solo Properties Pty Ltd t/as Artee Signs v Collet [2015] NSWWCCPD 14
Forder v Great Western Railway Co (1905) 2 KB 532
Legal Services Commission v Livers (No 2) [2018] NSWCATOD 152
Legal Services Commissioner v Livers [2017] NSWCATOD 117
Legal Services Commissioner v Livers [2019] NSWCATOD 180
Leon Nikolaidis v Legal Services Commissioner [2007] NSWCA 130
Livers v Legal Services Commissioner [2018] NSWCA 319
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66
Re Hodgekiss (1959) 62 SR (NSW) 340
Re Mayes and the Legal Practitioners Act [1974] 1 NSWLR 19
Royal Victorian Aero Club v Commonwealth (1954) 92 CLR 236; [1954] HCA 59
Sachin Sharma v Insurance Australia Ltd trading as NRMA Insurance [2017] NSWCA 307
Tangsilsat vCouncil of the Law Society of New South Wales [2019] NSWCA 144
Taylor v Council of the Law Society of New South Wales [2020] NSWCA 273
Transport Commission (Tas) v Neale Edwards Pty Ltd (1954) 92 CLR 214; [1954] HCA 21
Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278; [2006] HCA 6
Vella v Penrith City Council [2014] NSWWCC 363

Category: Principal judgment
Parties: Peter James Livers (Appellant)
Legal Services Commissioner (Respondent)
Representation:
Counsel:
S Prince SC, E Olivier (Appellant)
T Wong SC, B Cameron (Respondent)
Solicitors:
Moray & Agnew (Appellant)
Office of the Legal Services Commissioner (Respondent)

File Number(s): 2019/400796
2020/108013
Publication restriction: None
Decision under appeal

Court or tribunal:

New…

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: [2020] NSWCA 317
Decision Date: 10 December 2020

CaseChat Overview and Summary

The appeal concerned allegations of professional misconduct against a solicitor, Mr. Livers, who was accused by the Legal Services Commissioner of deliberately misleading a statutory authority. The core of the allegations was that Mr. Livers had fraudulently altered a document to secure funding for his client's legal representation. The matter came before the Court of Appeal of New South Wales, with Ward CJ in Eq, White and McCallum JJA presiding.

The central legal issue before the Court of Appeal was whether the circumstantial evidence presented was sufficient to support the findings of misconduct, particularly the allegation that Mr. Livers had deliberately altered the document. The court was required to determine if the evidence, in the absence of direct proof of alteration, could establish the solicitor's culpability beyond reasonable doubt.

The Court of Appeal found that the Civil and Administrative Tribunal had erred in its findings. The court reasoned that while the circumstantial evidence might raise suspicion, it did not, on its own, exclude all other reasonable hypotheses for the document's condition. The tribunal's reliance on the circumstantial evidence to infer deliberate fraudulent alteration was deemed insufficient to meet the required standard of proof for disciplinary findings against a legal practitioner. Consequently, the court set aside the tribunal's decision, dismissed the Commissioner's application for disciplinary findings and protective orders, and ordered the Commissioner to pay Mr. Livers' costs of the appeal.

Orders

Orders of the court

1. Set aside the decision of the Civil and Administrative Tribunal made 27 November 2019.

2. Dismiss the application by the Legal Services Commissioner for disciplinary findings and protective orders against the applicant.

3. Legal Services Commissioner to pay the applicant’s costs of the appeal.

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.

Medium Neutral Citation:	Livers v Legal Services Commissioner [2020] NSWCA 317
Hearing dates:	10 July 2020
Decision date:	10 December 2020
Before:	Ward CJ in Eq at [1]; White JA at [2]; McCallum JA at [3].
Decision:	1. Set aside the decision of the Civil and Administrative Tribunal made 27 November 2019. 2. Dismiss the application by the Legal Services Commissioner for disciplinary findings and protective orders against the applicant. 3. Legal Services Commissioner to pay the applicant’s costs of the appeal.
Catchwords:	OCCUPATIONS — Legal practitioners — Misconduct and discipline — where solicitor alleged to have deliberately misled statutory authority including by fraudulently altering a document in order to obtain a grant of funding for legal representation of a client — absence of any direct evidence that solicitor altered the document — whether circumstantial evidence capable of supporting allegations
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 4, Sch 5 cl 29(2)(b) Legal Profession Act 2004 (NSW), s 497 Supreme Court Act 1970 (NSW), s 75A Workers Compensation Act 1987 (NSW), ss 59A, 60, 66, 67 Workers Compensation Amendment (Existing Claims) Regulation 2014 (NSW)
Cases Cited:	Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Brassaud v Chubb Fire Safety Ltd [2014] NSWWCC 202 Carr v Law Society of New South Wales [2020] NSWCA 276 Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7 Collet v Flying Solo Properties Pty Limited [2014] NSWWCC 388 Flying Solo Properties Pty Ltd t/as Artee Signs v Collet [2015] NSWWCCPD 14 Forder v Great Western Railway Co (1905) 2 KB 532 Legal Services Commission v Livers (No 2) [2018] NSWCATOD 152 Legal Services Commissioner v Livers [2017] NSWCATOD 117 Legal Services Commissioner v Livers [2019] NSWCATOD 180 Leon Nikolaidis v Legal Services Commissioner [2007] NSWCA 130 Livers v Legal Services Commissioner [2018] NSWCA 319 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66 Re Hodgekiss (1959) 62 SR (NSW) 340 Re Mayes and the Legal Practitioners Act [1974] 1 NSWLR 19 Royal Victorian Aero Club v Commonwealth (1954) 92 CLR 236; [1954] HCA 59 Sachin Sharma v Insurance Australia Ltd trading as NRMA Insurance [2017] NSWCA 307 Tangsilsat vCouncil of the Law Society of New South Wales [2019] NSWCA 144 Taylor v Council of the Law Society of New South Wales [2020] NSWCA 273 Transport Commission (Tas) v Neale Edwards Pty Ltd (1954) 92 CLR 214; [1954] HCA 21 Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278; [2006] HCA 6 Vella v Penrith City Council [2014] NSWWCC 363
Category:	Principal judgment
Parties:	Peter James Livers (Appellant) Legal Services Commissioner (Respondent)
Representation:	Counsel: S Prince SC, E Olivier (Appellant) T Wong SC, B Cameron (Respondent) Solicitors: Moray & Agnew (Appellant) Office of the Legal Services Commissioner (Respondent)
File Number(s):	2019/400796 2020/108013
Publication restriction:	None
Decision under appeal	Court or tribunal: New…