Livers v Legal Services Commissioner

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.