Livers v Legal Services Commissioner (No 2)

This matter concerned an application by a solicitor for payment of costs incurred in defending disciplinary proceedings before the Civil and Administrative Tribunal (NCAT). The solicitor had been the subject of allegations of professional misconduct by the Legal Services Commissioner. Following a successful appeal against NCAT's findings, the solicitor sought to recover their legal costs from the Public Purpose Fund, as provided for under the *Civil and Administrative Tribunal Act 2013* (NSW).

The central legal issue before the Court of Appeal was the proper construction of clause 23(3) of Schedule 5 of the *Civil and Administrative Tribunal Act 2013* (NSW). This provision requires the Court to be satisfied that the applicant did not engage in unsatisfactory professional conduct or professional misconduct before ordering payment of costs from the Public Purpose Fund. The solicitor had admitted to professional misconduct, but on a basis different from that alleged by the Commissioner. The Court had to determine whether this admission, and the nature of the misconduct found, precluded the solicitor from satisfying the statutory requirement.

The Court of Appeal held that the solicitor's admission of professional misconduct, even if on a different basis than that initially alleged by the Commissioner, meant that the statutory pre-condition for payment of costs from the Public Purpose Fund was not met. The Court reasoned that the purpose of the Fund was to reimburse practitioners who were vindicated and found not to have engaged in misconduct. The solicitor's admission, regardless of its specific characterisation, demonstrated that they had, in fact, engaged in professional misconduct. Consequently, the Court dismissed the solicitor's motion for costs.