Livers v Legal Services Commissioner - [2018] NSWCA 319

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Livers v Legal Services Commissioner [2018] NSWCA 319
Hearing dates: 3 December 2018
Decision date: 14 December 2018
Before: Gleeson JA at [1]
Barrett AJA at [94]
Simpson AJA at [95]
Decision:
(1)   Appeal allowed in relation to ground 1.

(2)   Set aside order 1 of the Tribunal made on 3 August 2017 and orders 1 and 2 made by the Tribunal on 7 September 2018 and in place order:

(a)   the proceedings be remitted to the Tribunal to be determined according to law;

(b)   costs of the proceedings before the Tribunal be determined by the Tribunal upon the remittal;

(3)   The order made by Beazley P on 22 October 2018 that the practitioner’s name be reinstated on the Roll of lawyers until further order, be continued until the determination of the rehearing by the Tribunal, or earlier further order.
(4)   The first respondent to pay the appellant’s costs of the appeal.
Catchwords: ADMINISTRATIVE LAW – procedural fairness – where solicitor applied for funding in respect of client’s workers compensation claim for hearing aids –where allegation that solicitor failed to disclose client’s previous claim – where Commissioner sought disciplinary action against solicitor – where Tribunal found solicitor guilty of professional misconduct and removed his name from the Roll of lawyers – Legal Profession Act 2004 (NSW), s 562(2)(a) – whether Tribunal denied solicitor procedural fairness by determining allegation not pleaded by Commissioner – whether Tribunal’s finding that solicitor altered date of client statement influenced its findings in respect of other matters – whether solicitor deprived of opportunity of a successful outcome – whether the matter should be remitted for re-hearing
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, cl 23(1), cl 29(4)(a)
Evidence Act 1995 (NSW), s 140
Legal Profession Act 2004 (NSW), ss 553, 555, 562
Supreme Court Act 1970 (NSW), s 75A
Workers Compensation Act 1987 (NSW), ss 59A, 60, 66, 66A, 67
Workers Compensation Amendment (Existing Claims) Regulation 2014 (NSW), Sch 1, cl 28(1)(b)
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 51.53
Cases Cited: Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23
Smith v New South Wales Bar Association (1992) 176 CLR 256
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Category: Principal judgment
Parties: Peter James Livers (Appellant)
Legal Services Commissioner (Respondent)
Representation:
Counsel:
S E J Prince SC / E L Olivier (Appellant)
T L…

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: [2018] NSWCA 319
Decision Date: 14 December 2018

CaseChat Overview and Summary

The applicant, a solicitor, appealed to the Court of Appeal of New South Wales against a decision of the Civil and Administrative Tribunal (NSW) which found him guilty of professional misconduct and ordered his removal from the Roll of lawyers. The disciplinary action arose from allegations that the solicitor failed to disclose a client's previous workers compensation claim when applying for funding for a new claim concerning hearing aids.

The primary legal issues before the Court of Appeal were whether the Tribunal denied the solicitor procedural fairness by determining an allegation of misconduct that had not been formally pleaded by the Commissioner, and whether the Tribunal's finding that the solicitor had altered the date of a client statement improperly influenced its conclusions on other matters. The Court also considered whether the solicitor was deprived of the opportunity of a successful outcome and whether the matter should be remitted for a rehearing.

The Court of Appeal found that the Tribunal had indeed denied the solicitor procedural fairness by making a finding of misconduct based on an allegation not put to him by the Commissioner. The Court held that the Tribunal's finding regarding the alteration of the client statement was inextricably linked to its other findings and that the solicitor had not been afforded a proper opportunity to address this specific allegation. Consequently, the Court allowed the appeal, set aside the Tribunal's orders, and remitted the matter to the Tribunal for redetermination.

Orders

Orders of the court

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Livers v Legal Services Commissioner [2018] NSWCA 319
Hearing dates:	3 December 2018
Decision date:	14 December 2018
Before:	Gleeson JA at [1] Barrett AJA at [94] Simpson AJA at [95]
Decision:	(1) Appeal allowed in relation to ground 1. (2) Set aside order 1 of the Tribunal made on 3 August 2017 and orders 1 and 2 made by the Tribunal on 7 September 2018 and in place order: (a) the proceedings be remitted to the Tribunal to be determined according to law; (b) costs of the proceedings before the Tribunal be determined by the Tribunal upon the remittal; (3) The order made by Beazley P on 22 October 2018 that the practitioner’s name be reinstated on the Roll of lawyers until further order, be continued until the determination of the rehearing by the Tribunal, or earlier further order. (4) The first respondent to pay the appellant’s costs of the appeal.
Catchwords:	ADMINISTRATIVE LAW – procedural fairness – where solicitor applied for funding in respect of client’s workers compensation claim for hearing aids –where allegation that solicitor failed to disclose client’s previous claim – where Commissioner sought disciplinary action against solicitor – where Tribunal found solicitor guilty of professional misconduct and removed his name from the Roll of lawyers – Legal Profession Act 2004 (NSW), s 562(2)(a) – whether Tribunal denied solicitor procedural fairness by determining allegation not pleaded by Commissioner – whether Tribunal’s finding that solicitor altered date of client statement influenced its findings in respect of other matters – whether solicitor deprived of opportunity of a successful outcome – whether the matter should be remitted for re-hearing
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, cl 23(1), cl 29(4)(a) Evidence Act 1995 (NSW), s 140 Legal Profession Act 2004 (NSW), ss 553, 555, 562 Supreme Court Act 1970 (NSW), s 75A Workers Compensation Act 1987 (NSW), ss 59A, 60, 66, 66A, 67 Workers Compensation Amendment (Existing Claims) Regulation 2014 (NSW), Sch 1, cl 28(1)(b) Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 51.53
Cases Cited:	Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 Smith v New South Wales Bar Association (1992) 176 CLR 256 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Category:	Principal judgment
Parties:	Peter James Livers (Appellant) Legal Services Commissioner (Respondent)
Representation:	Counsel: S E J Prince SC / E L Olivier (Appellant) T L…