McLeod v Legal Profession Conduct Commissioner - [2016] SASC 151

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
MCLEOD v LEGAL PROFESSION CONDUCT COMMISSIONER
[2016] SASC 151
Judgment of The Honourable Justice Doyle
22 September 2016
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL
ADMINISTRATIVE LAW - JUDICIAL REVIEW - STANDING TO INSTITUTE PROCEEDINGS - PARTICULAR CASES
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE
In 2010, the plaintiff was charged with a number of offences. A Magistrate dismissed the charges against the plaintiff, relying upon the failure of the prosecution to particularise the charges, and the loss or unavailability of CCTV footage of the incident as a result of it not being sought by the prosecution in a timely way. The police were represented on appeal by a solicitor and counsel from the Crown Solicitor’s Office. The appeal was heard by a justice of this court who allowed the appeal and remitted the matter to the Magistrates Court. The plaintiff was found not guilty of all charges.
The plaintiff has commenced civil proceedings against the police. In May 2014, the plaintiff made a complaint to the Legal Practitioners Conduct Board about the conduct of the Practitioners who represented the police on the appeal. Following amendments to the Legal Practitioners Act 1981 (SA), the plaintiff’s complaints were determined by the defendant, the Legal Profession Conduct Commissioner. On 21 May 2015, the defendant determined that he was not satisfied that there was evidence that either of the Practitioners had engaged in unsatisfactory or unprofessional conduct.
The plaintiff commenced proceedings in this Court seeking judicial review of the 21 May 2015 determinations of the defendant. The defendant made an application for the summary dismissal or striking out of the plaintiff’s proceedings on the bases that the plaintiff lacks standing, or alternatively that relief should be declined on discretionary grounds because the plaintiff ought to have pursued other remedies available to him.
Held per Doyle J, dismissing the application:
1. By reason of the plaintiff’s status as a complainant under s 77B(2)(b) of the Legal Practitioners Act 1981 (SA), and the fact that he was the object of (and was directly affected by) the alleged misconduct complained of, the plaintiff has at least reasonable prospects of establishing standing to seek judicial review.
2. It is not appropriate in the circumstances of this case to summarily dismiss or strike out the plaintiff’s proceedings for judicial review on account of the availability of alternative remedies.
Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; Argos Pty Ltd v Corbell (2014) 254 CLR 394; Viscariello v Livesey [2013] SASC 99, discussed.
Police v McLeod [2011] SASC 160; Police v McLeod (No 2) [2011] SASC 204; Davies v Minister for Urban Development and Planning (2011) 109 SASR 518; Spencer v Commonwealth (2010) 241 CLR 118; Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1; Estate of the Late Sir Donald Bradman v Allens Arthur Robinson (2010) 107 SASR 1; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591; Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; Xenophon v State of South Australia (2000) 78 SASR 251; Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501; R v Inland Revenue Commissioners; Ex parte Preston [1985] AC 835 ; R v Epping & Harlow General Commissioners; Ex parte Goldstraw [1983] 3 All ER 257; R v Chief Constable of the Merseyside Police; Ex parte Calveley [1986] QB 424; Prescott v Legal Practitioners Disciplinary Tribunal [2009] SASC 309; Carnley v Grafton Ngerrie Local Aboriginal Land Council [2010] NSWSC 837; Jackson v Chrisp [2013] WASC 380; Mericka v Rathbone [2016] SASCFC 95, considered.

MCLEOD v LEGAL PROFESSION CONDUCT COMMISSIONER
[2016] SASC 151
Civil
DOYLE J:

The plaintiff seeks judicial review of the 21 May 2015 determinations of the defendant, the Legal Profession Conduct Commissioner, to the effect that two legal practitioners against whom the plaintiff had made a complaint did not engage in unsatisfactory or unprofessional conduct.
The defendant seeks an order summarily dismissing or striking out the plaintiff’s proceedings on the bases that the plaintiff lacks standing, or alternatively ought to have pursued other remedies available to him.
Background
In 2010, the plaintiff was charged with behaving in a disorderly manner, failing to state his name and address when required to do so and resisting a police officer in the execution of his duty. The charges arose out of an incident which occurred on a city street in the early morning of 28 May 2010, when the police intervened following an altercation between the plaintiff and two other men.
On 15 March 2011, a Magistrate dismissed the charges against the plaintiff, relying upon the failure of the prosecution to particularise the charges, and the loss or unavailability of CCTV footage of the incident as a result of it not being sought by the prosecution in a timely way.
The police appealed this dismissal to the Supreme Court. The police were represented on the appeal by a solicitor and counsel from the Crown Solicitor’s Office (together, the Practitioners). The appeal was heard by this Court, which allowed the appeal and remitted the matter to the Magistrates Court.[1]
[1] The appeal was heard in two parts, reported as Police v McLeod [2011] SASC 160 and Police v McLeod (No 2) [2011] SASC 204.
The matter proceeded to trial before a Magistrate in May 2012, and the plaintiff was found not guilty of all charges.
The plaintiff claims that the pursuit of these charges against him resulted in him suffering stress, anxiety and depression, and various other psychological and physical sequelae. He has commenced civil proceedings against the police, alleging inter alia malicious prosecution. He has at times foreshadowed the possibility of civil proceedings against the Practitioners, but has not to this date commenced any such proceedings.
In May 2014, the plaintiff made a complaint to the Legal Practitioners Conduct Board about the conduct of the Practitioners who represented the police on the appeal in this Court. The plaintiff alleged misconduct by the Practitioners in connection with the appeal hearing. The essence of the allegations against the Practitioners was that they acted in breach of their professional obligations by not revealing to the plaintiff (and the Court) various matters relevant to the credit of certain police and lay witnesses to be relied upon by the prosecution, and hence relevant to the merit (or lack thereof) of the charges against the plaintiff. It was alleged that the Practitioners knew, or ought to have known, of these matters.
Following amendments to the Legal Practitioners Act 1981 (SA), effective from 1 July 2014, the plaintiff’s complaints against the Practitioners fell to be determined by the Legal Profession Conduct Commissioner (the Commissioner).
On 21 May 2015, the Commissioner determined that he was not satisfied that there was evidence that either of the Practitioners had engaged in unsatisfactory or unprofessional conduct (which I hereafter refer to collectively as “misconduct”).[2] A copy of the Commissioner’s reasons for the determination in respect of each of the Practitioners were sent to the plaintiff. They were in very similar terms.
[2] The two categories of misconduct which existed prior to the 2014 amendments to the Legal Practitioners Act, unsatisfactory conduct and unprofessional conduct, have been replaced by unsatisfactory professional conduct and professional misconduct. However, by reason of the transitional provisions, while disciplinary investigations and proceedings are now to be dealt with under the new procedural regime (and hence by the Commissioner rather than the Board), nevertheless the conduct is to be assessed by reference to the old labels of unsatisfactory conduct and unprofessional conduct as though they still appeared in the Legal Practitioners Act in place of their new counterparts.
It is these determinations that the plaintiff challenges in his judicial review proceedings.
The judicial review proceedings
In his statement of grounds, the plaintiff identifies 14 grounds of review.
The first seven grounds of review allege errors of law by the Commissioner, including a failure to determine that the “undisclosed evidence” was relevant to the appeals before this Court; a failure to hold that the Practitioners owed and breached duties to disclose this evidence on the appeal; a failure to hold that the alleged breaches of duty by the Practitioners were capable of affecting the decision of the Court and had the effect of fraudulently procuring that decision; and a failure to permit reliance upon inferences, beliefs and circumstantial evidence raised by the plaintiff.
Grounds 8 and 9 allege errors by the Commissioner in considering “extrinsic materials”, namely the denials of the Practitioners.
Grounds 10 and 11 challenge the sufficiency of the Commissioner’s reasons for determining that there was no evidence of misconduct.
Grounds 12 and 13 allege error on the part of the Commissioner in failing to consider separately the complaints against the respective practitioners, and in permitting them to rely upon a statement which the plaintiff says was produced through collusion between the Practitioners, without allowing the plaintiff the opportunity to scrutinise the Practitioners’ statements, or make submissions or examine the Practitioners as to their respective roles.
Ground 14 alleges that the Commissioner erred in preventing the plaintiff from having access to, and making submissions in relation to, the combined statements of the Practitioners on the grounds of legal professional privilege claimed by the Practitioners.
The plaintiff’s statement of grounds seeks relief in the form of orders setting aside the determinations of the Commissioner in relation to each of the Practitioners (orders 1 and 2), an order referring the complaints to the Legal Practitioners Disciplinary Tribunal for an inquiry into the alleged misconduct of the Practitioners (order 3), and any other orders the Court may see fit (order 4).
In the Commissioner’s response to the statement of grounds he denies that any of the grounds of review are made out, and opposes the relief sought. He also contends that the plaintiff does not have standing to bring judicial review proceedings, and that the plaintiff has an alternative remedy, namely the right to pursue the Practitioners in the Tribunal. The response seeks orders striking out or dismissing the judicial review proceedings.
Under r 200C(1) of the Supreme Court Civil Rules 2006 (SA), a defendant to judicial review proceedings is entitled to file an application for summary dismissal under r 232, or to strike out the statement of grounds under rr 104, 117 or 193. Under r 200C(2), if a defendant files such an application, the Court must dismiss or strike out the action or statement of grounds, as the case may be, insofar as an order for judicial review is sought, unless satisfied that there is a reasonable basis for the claim for an order for judicial review.
The parties have proceeded on the basis that the concluding paragraph of the defendant’s response is to be treated as an application under r 200C(1), and so I too will proceed on that basis.
The reference to “reasonable basis” in r 200C(2) mirrors the language of r 232 and so is to be informed by the authorities addressing r 232. There is also a close analogy with the authorities addressing applications to strike out claims under rr 104, 117 or 193 on the basis that the pleadings do not disclose a reasonable cause of action.
The power to dismiss proceedings under r 200C should not be exercised lightly.[3] However, beyond that note of caution, the better view appears to be that the words “no reasonable basis” require no elaboration.[4] It is thus unnecessary to consider or determine whether the claim is hopeless, unarguable, obviously untenable or bound to fail. The only issue is whether there is a reasonable basis for the claim in the sense that there is a reasonable prospect that, if the matter went to trial, it would succeed. [5]
[3]    Davies v Minister for Urban Development and Planning (2011) 109 SASR 518 at [44]; Spencer v Commonwealth (2010) 241 CLR 118 at [60]; Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1; Estate of the Late Sir Donald Bradman v Allens Arthur Robinson (2010) 107 SASR 1 at [26]-[29].
[4]    Davies v Minister for Urban Development and Planning (2011) 109 SASR 518 at [44]-[48]; Spencer v Commonwealth (2010) 241 CLR 118 at [56]-[58].
[5]    In Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1 at [94] Debelle J with whom Duggan and Anderson JJ agreed, put the test in terms of “reasonable as distinct from fanciful prospects of success.”
There are two limbs to the Commissioner’s contention that the plaintiff’s claim does not have reasonable prospects of success. The first is that the plaintiff does not have standing to bring these judicial review proceedings. The second is that the Court should exercise its discretion to decline the relief sought on the basis that the plaintiff has an alternative remedy or remedies available to him.
So far as the first of these contentions is concerned, the issue on this application is whether the plaintiff has a reasonable basis for, or reasonable prospects of, establishing standing. So far as the second contention is concerned, despite it involving consideration of a discretion, the test remains the same, namely whether there is a reasonable basis on which the Court’s discretion to grant the relief claimed might be exercised in favour of the plaintiff.
The Legal Practitioners Act 1981 (SA)
In order to consider the plaintiff’s prospects of establishing standing, and the likelihood of the Court declining relief on discretionary grounds, it is necessary to understand the legislative scheme governing the discipline of legal practitioners in this State. The relevant provisions are in Part 6 of the Legal Practitioners Act (the Act), headed “Investigations, inquiries and disciplinary proceedings”. I propose to outline the overall structure of that Part of the Act before then considering the detail of some of the provisions relevant to the circumstances of this case.
Division 1 is entitled “Preliminary”, and in ss 68-70 identifies and defines the two heads of misconduct (namely unsatisfactory professional conduct and professional misconduct, or in the case of complaints relating to conduct prior to 1 July 2014, unsatisfactory conduct and unprofessional conduct).
Division 2 addresses the role of the Commissioner. Subdivision 1 (ss 71-77A) provides that there will be a Commissioner, and contains some general provisions as to the nature and functions of that role. The functions include investigating suspected misconduct under subdivision 2 (ss 77B-77F), taking action following investigation under subdivision 3 (ss 77G-77M), and commencing disciplinary proceedings against legal practitioners in the Supreme Court on the recommendation of the Tribunal (s 89) or under s 88A.
Division 3 (ss 78-81) establishes the Legal Practitioners Disciplinary Tribunal (the Tribunal). Division 4 (ss 82-88) addresses proceedings before the Tribunal. Division 5 (ss 88A-89A) is concerned with disciplinary proceedings before the Supreme Court.
It can thus be seen that each of the Commissioner (division 2), the Tribunal (divisions 3 and 4) and the Supreme Court (division 5) have roles to play in the discipline of legal practitioners in this State.
For the purposes of these proceedings it is relevant to consider in some detail the role of the Commissioner in investigating, and taking action in relation to, complaints of misconduct, under subdivisions 2 and 3 of division 2 of Part 6.
Section 77B deals with the commencement of complaints. In particular, s 77B(1) provides that the Commissioner may, on his own initiative, make an investigation into the conduct of a legal practitioner whom he has reasonable cause to suspect has been guilty of misconduct. Further, s 77B(2) provides that the Commissioner “must” make an investigation into the conduct of a legal practitioner if directed to do so by the Attorney-General or Law Society of South Australia (the Society) (s 77B(2)(a)), or if a complaint has been received in relation to the conduct of the legal practitioner (s 77B(2)(b)). There is no limit upon the persons who may make a complaint under s 77B(2)(b).
Section 77C gives the Commissioner power in certain circumstances to close a complaint at any time, without investigation or without completing an investigation. It provides:
77C—Closure of whole or part of complaint
(1)At any stage after receipt of a complaint, the Commissioner may close the complaint without further consideration of its merits for any of the following reasons to the extent they are applicable:
(a)     the complaint is vexatious, misconceived, frivolous or lacking in substance;
(b)     the complainant has not responded, or has responded inadequately, to a request for further information or has unreasonably failed to cooperate in        the investigation or conciliation of the complaint;
(c)     the subject‑matter of the complaint has been or is already being investigated, whether by the Commissioner or another authority;
(d)     the subject‑matter of the complaint would be better investigated or dealt       with by police or another investigatory or law enforcement body;
(e)     the subject‑matter of the complaint is the subject of civil proceedings,    except so far as it is a disciplinary matter;
(f)    the complaint is not one that the Commissioner has power to deal with;
(g)     the Commissioner is satisfied that it is otherwise in the public interest to close the complaint.
(2)A complaint may be closed under this section without an investigation or without completing an investigation.
(3)The Commissioner is not required to give a complainant, a legal practitioner, a former legal practitioner, a law practice or the Legal Services Commission an opportunity to be heard or make a submission to the Commissioner before determining whether or not to close a complaint under this section.
(4)The power to close a complaint under this section extends to closure of part of a complaint.
Section 77D requires the Commissioner to give the legal practitioner notification of the complaint against them, and of their opportunity to make submissions. This is subject to some limited exceptions in s 77F. Section 77E entitles the legal practitioner to make submissions, and requires that the Commissioner consider them.
Turning to subdivision 3, and the action taken by the Commissioner following an investigation, s 77H requires that he make a report to the Attorney‑General and Society if satisfied there is evidence of misconduct. That section also requires that the Commissioner pass any information or evidence suggestive of a criminal offence to the Crown Solicitor. Section 77I provides the Commissioner with power to notify a person whom the Commissioner has reason to believe has suffered loss as a result of misconduct by a legal practitioner.
Section 77J sets out the powers of the Commissioner to deal with certain misconduct. It deals separately with unsatisfactory professional conduct[6] and professional misconduct[7] in ss 77J(1) and (2) respectively.
[6] Or, in respect of conduct prior to 1 July 2014, ‘unsatisfactory conduct’.
[7] Or, in respect of conduct prior to 1 July 2014, ‘unprofessional conduct’.

As to the former (unsatisfactory professional conduct), s 77J(1) provides that if, after conducting an investigation, the Commissioner is “satisfied that there is evidence of unsatisfactory professional conduct and that the conduct in question can be adequately dealt with under this subsection”, then he may determine not to lay a charge before the Tribunal and instead either exercise any one or more of the “powers” set out in ss 77J(1)(a)(i)–(vii), or, if the legal practitioner consents to such a course, exercise any one or more of the “powers” set out in ss 77J(1)(b)(i)‑(vi).
As to the latter (professional misconduct), s 77J(2) provides that if, after conducting an investigation, the Commissioner is “satisfied that there is evidence of professional misconduct and that the misconduct in question can be adequately dealt with under this subsection,” then he may, if the legal practitioner consents to such a course of action, determine not to lay a charge before the Tribunal and instead exercise any one or more of the powers set out in ss 77J(2)(a)-(i).
Section 77J(3) provides the Commissioner with certain powers in relation to former legal practitioners, and is not relevant for present purposes.
Section 77J(4) provides that if the Commissioner proposes to exercise a power under ss 77J(1), (2) or (3), he must provide the complainant (if any) and, in the case of the exercise of a power that does not require the consent of the legal practitioner, the legal practitioner, with details of the proposal and invite them to make submissions to the Commissioner within a specified period (s 77J(4)(a)), and must take into consideration any such written submissions (s 77J(4)(b)).
Under s 77J(8) the Commissioner must, as soon as possible after determining to exercise a power under this section, provide the complainant with written notification of the determination.
Section 77L provides that if the Commissioner, after investigation, is satisfied that there is evidence of misconduct, and that it cannot be adequately dealt with under s 77J, then he must lay a charge before the Tribunal in relation to the conduct unless the Commissioner determines that it would not be in the public interest to do so.[8]
[8] Subject only to s 82(2a), which provides a time limit for tribunal proceedings of three years after the conduct in question occurred.
It can thus be seen that upon receipt of a complaint by the Commissioner, there are various courses open to him. Some of them involve taking action against the practitioner following investigation (either through an exercise of the Commissioner’s powers under s 77J or by laying a charge before the Tribunal). Others involved determining to resolve the matter without any such action. The latter is an available course where the Commissioner determines not to investigate or to close a complaint under s 77C; where the Commissioner conducts an investigation but determines that there is no evidence of misconduct; or where the Commissioner conducts an investigation and determines that there is evidence of misconduct which cannot be adequately dealt with under s 77J, but that it would not be in the public interest to lay a charge before the Tribunal.
In the category of cases where the Commissioner determines not to take action against the practitioner, the Commissioner is obliged under s 77M of the Act to provide the complainant and the legal practitioner with written reasons for his determination.
Section 77K addresses rights of appeal against determinations made by the Commissioner. It provides the legal practitioner and complainant with a right of appeal to the Tribunal in the case of some, but not all, determinations of the Commissioner. It relevantly provides:
77K—Appeal against determination of Commissioner
(1)Subject to subsection (3), an appeal to the Tribunal against a determination of the Commissioner under section 77J(1)(a) or (3)(a)(i) may be instituted by—
(a) the legal practitioner or former legal practitioner in relation to whom the determination was made; or
(b) the complainant.
(2)Subject to subsection (3), an appeal to the Tribunal against a determination of the Commissioner under section 77J(1)(b), (2) or (3)(a)(ii) or (b) after conducting an investigation into the conduct of a legal practitioner or former legal practitioner following receipt of a complaint may be instituted by the person who made the complaint.
The Act thus provides appeal rights only in respect of determinations by the Commissioner to exercise the disciplinary powers conferred upon him under the identified subsections of s 77J. Where he determines to do so without the consent of the legal practitioner (s 77J(1)(a)),[9] a right of appeal is afforded to both the legal practitioner and the complainant. Where the Commissioner determines to do so only with the consent of the legal practitioner, then a right of appeal is afforded only to the complainant. There is no right of appeal afforded to the complainant (or legal practitioner) if the Commissioner determines to deal with the matter other than through an exercise of his powers under s 77J, i.e. by closing the complaint, determining not to exercise the powers under s 77J on the basis there is no evidence of misconduct, or by laying a charge in the Tribunal.
[9] The references to s 77J(3) can be ignored for present purposes as that subsection relates to former practitioners.
The Plaintiff’s complaints against the Practitioners
The plaintiff made separate complaints against each of the two Practitioners. Under s 77B(2) of the Act, the Commissioner was required to investigate the conduct complained of.
In his two determinations of 21 May 2015, the Commissioner decided that that there was no evidence of misconduct on the part of either Practitioner. The effect of these determinations was to preclude the Commissioner from exercising his disciplinary powers under ss 77J(1), (2) or (3). There is a threshold requirement to the exercise of those powers, namely that the Commissioner is satisfied that there is evidence of misconduct, and the Commissioner’s decision in respect of each Practitioner was that the threshold requirement was not established.
The nature of the determinations was thus such that the plaintiff (as complainant) has no right of appeal to the Tribunal under s 77K.
It is against this background that the plaintiff commenced these judicial review proceedings seeking to challenge the Commissioner’s determinations. The essence of the Commissioner’s response is that the plaintiff’s proper remedy, if he wishes to complain, is to bring his own proceedings in the Tribunal (as an aggrieved person under s 82(2)(d) of the Act). The Commissioner contends that the judicial review proceedings should be summarily dismissed on the grounds that the plaintiff does not have standing to bring these judicial proceedings, or that the Court should exercise its discretion to decline the relief sought on the basis that the plaintiff has alternative remedies available to him that he should pursue.
Standing
In his statement of grounds, the plaintiff seeks orders setting aside the decisions made by the Commissioner. As such, he seeks orders in the nature of certiorari. While he does not expressly seek declaratory relief, argument proceeded on the basis that he may well ultimately seek at least some form of declaratory relief.
The significance of the relief sought is that the courts have generally recognised at least a formal distinction in judicial review proceedings between the test for standing in respect of claims for, on the one hand, equitable relief in the form of a declaration or injunction, and, on the other hand, prerogative relief such as an order in the nature of certiorari or for prohibition. The former is governed by the need to establish a “special interest” in the subject matter of the litigation in accordance with Australian Conservation Foundation Inc v Commonwealth.[10] In the case of certiorari (and prohibition), there is authority to the effect that ‘strangers’ (persons not a party to the decision under challenge) may bring proceedings.[11] While this is suggestive of a more lenient or liberal approach to the issue of standing where prerogative relief is sought, the difference is likely to be more theoretical than real in a case such as the present.[12] The reason for this is that various authorities have taken the approach that in the absence of a “special interest” the equivalent of that required by Australian Conservation Foundation Inc v Commonwealth there will be strong reasons for the Court to exercise its discretion not to entertain a claim for certiorari.[13]
[10] Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 527.
[11] Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 599-600 (per Gleeson CJ and McHugh J), 611 (per Gaudron J), 627-628 (per Gummow J), 652-653 (per Kirby J), and 669-670 (per Callinan J); Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 413-414 (per McHugh J) and 464-465 (per Hayne J); Xenophon v State of South Australia (2000) 78 SASR 251 at [71].
[12] Xenophon v State of South Australia (2000) 78 SASR 251 at [71]-[74].
[13] Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at [40] (per Gaudron, Gummow and Kirby JJ); Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 627 (per Gummow J) and 652-653 (per Kirby J); Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 415-417; 422 and 426 (per McHugh J).
In Australian Conservation Foundation Inc v Commonwealth, Gibbs J explained the notion of a special interest in the subject matter of the litigation in the following terms:[14]
However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails.
[14] Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 530.
In Onus v Alcoa of Australia Ltd,[15] the High Court recognised the standing of the Gournditch-jmara aboriginal people to bring proceedings in respect of certain relics that they were the custodians of, and which were of cultural and spiritual significance to them. Gibbs CJ formulated the principles governing standing in these terms:
A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action. The rule is obviously a flexible one since, as was pointed out in that case, the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation.
It seems to me that the appellants have an interest in the subject matter of the present action which is greater than that of other members of the public and indeed greater than that of other persons of aboriginal descent who are not members of the Gournditch-jmara people. The appellants, and other members of the Gournditch-jmara people, would be more particularly affected than other members of the Australian community by the destruction of the relics.
[15] Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 35-36 (per Gibbs CJ) (omitting citations).
Stephen J agreed with Gibbs J’s approach to standing in Australian Conservation Foundation Inc v Commonwealth, adding:[16]
… I do not regard the existing state of the law to be that the possession of intellectual or emotional concern is any disqualification from standing to sue. On the contrary, it will be but rarely that a person having a special interest in the subject matter of the action which he has instituted does not also possess at least a strong intellectual and perhaps also a strong emotional concern with that subject matter. What is more, the absence of mere material interest in that subject matter, in the sense of property or possessory rights, will not, as the law now stands, be in itself any bar to standing; this the present case attests.
Thirdly, the distinction between this case and the A.C.F. Case is not to be found in any ready rule of thumb, capable of mechanical application; the criterion of “special interest” supplies no such rule. As the law now stands it seems rather to involve in each case a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of that plaintiff’s relationship to that subject matter.
[16] Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 41-42 (per Stephen J).
In also agreeing with Gibbs J’s approach, Brennan J said:[17]
If the grant of declaratory and injunctive relief to enforce performance of public duties is not now dependent upon an affection of public proprietary interests, there is no reason in principle why the special interest in that relief which a plaintiff must show should necessarily consist in an affection of his proprietary or pecuniary interests by the threatened breach of the law. …
… the question whether the private plaintiff has or has not legal or equitable rights to enforce does not furnish an exhaustive test for distinguishing between the two classes.
…
A plaintiff must show that he has been specially affected, that is, in comparison with the public at large he has been affected to a substantially greater degree or in a significantly different manner. It is not necessary to show that the plaintiff is uniquely affected; there may be some others whose interests may be affected in like manner.
[17] Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 72-74 (per Brennan J).
The High Court has subsequently endorsed the formulation of the approach to standing in Australian Conservation Foundation Inc v Commonwealth and Onus v Alcoa of Australia Ltd.[18]
[18] For example, in Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at [42]-[46] (per Gaudron, Gummow and Kirby JJ), [96]-[103] (per McHugh J), and [107] (per Hayne J).
In Argos Pty Ltd v Corbell,[19] the High Court was concerned with standing under the Administrative Decisions (Judicial Review) Act 1989 (ACT)[20] but noted that the authorities which address the issue of standing under the general law afford some assistance in understanding the kinds of interest that may be relevant and the kinds of effect that may be regarded as adverse.[21] Hayne and Bell JJ explained:[22]
The focus of the inquiry required by the words is upon the connection between the decision and interests of the person who claims to be aggrieved. The interests that may be adversely affected by a decision may take any of a variety of forms. They include, but are not confined to, legal rights, privileges, permissions or interests. And the central notion conveyed by the words is that the person claiming to be aggrieved can show that the decision will have an effect on his or her interests which is different from its effect on the public at large. Here, the effect was said to be economic.
[19] Argos Pty Ltd v Corbell (2014) 254 CLR 394.
[20] Under that legislation standing turned upon the applicant for judicial review being a “person aggrieved”, which was defined as including a person whose interests were adversely affected by the decision.
[21] Argos Pty Ltd v Corbell (2014) 254 CLR 394 at [33] (per French CJ and Keane J).
[22] Argos Pty Ltd v Corbell (2014) 254 CLR 394 at [61] (per Hayne and Bell JJ) (omitting citations).
As the above authorities illustrate, the issue of standing requires close scrutiny of the nature of the plaintiff’s interest in the relevant subject matter and decision, and will often require judgments of fact and degree[23] as to the closeness and sufficiency of that interest.
[23] Argos Pty Ltd v Corbell (2014) 254 CLR 394 at [37] (per French CJ and Keane J), and [62] (per Hayne and Bell JJ).
In determining the nature of a plaintiff’s interest in the relevant subject matter and decision, and the impact or effect of the decision upon the plaintiff, it will often be necessary to have regard to the legislation under which the impugned decision is made, and the legal effect and operation of the decision, in order to determine how the interests of the applicant for review may be affected or aggrieved.[24] On the other hand, a majority of the High Court in Argos Pty Ltd v Corbell cautioned against going further and attempting to divine the breadth of interest that will suffice to establish standing from the purpose or objects of the relevant legislation.[25] In other words, while the relevant legislation will inform, if not determine, the nature of the plaintiff’s interest, it does not determine whether that interest is sufficient to establish standing. For example, in Argos Pty Ltd v Corbell, it was held that while the applicant supermarket operators’ private interests in the relevant subject matter were not a matter that the legislation required (or permitted) to be taken into account in making the relevant decision, this did not mean that those persons were not sufficiently affected by the operation of the decision to give them standing to challenge the lawfulness of the decision on grounds that were relevant to its validity.[26]
[24] Argos Pty Ltd v Corbell (2014) 254 CLR 394 at [43] (per French CJ and Keane J) and [76] (per Gageler J).
[25] Argos Pty Ltd v Corbell (2014) 254 CLR 394 at [42], [47] (per French CJ and Keane J) and [85]-[86] (per Gageler J). While this was a decision under the provisions of the Administrative Decisions (Judicial Review) Act 1989 (ACT), the approach to the issue of standing appears to be of more general application and significance.
[26] Argos Pty Ltd v Corbell (2014) 254 CLR 394 at [47] (per French CJ and Keane J), and [73] (per Gageler J).
Turning to the determinations or decisions in issue here, the Commissioner contends that the plaintiff has no interest in the complaint against the Practitioners; that he was not the client of the Practitioners and had no interest in what, if any, disciplinary action might be taken against the Practitioners in respect of the alleged misconduct. It follows, on the Commissioner’s argument, that the plaintiff had no relevant interest in the determinations of 21 May 2015 and hence had no standing to seek judicial review of those determinations.
The plaintiff asserts an economic interest in the outcome of his complaint against the Practitioners by reason of his intention to make a claim on the fidelity fund that the Law Society of South Australia (the Society) is required to maintain under s 57 of the Act, relying upon the alleged misconduct of the Practitioners. Under s 60 of the Act, any person who suffers loss as a result of a “fiduciary or professional default”, and has no reasonable prospect of otherwise recovering the full amount of that loss, may claim the loss from the fund. The claim is made to the Society, and is determined by the Society under s 63 of the Act.
While the plaintiff would obviously have a financial or economic interest in the outcome of any claim he made on the fidelity fund, in my view there is not a sufficient connection between the Commissioner’s determinations and the outcome of any such claim to give the plaintiff standing in respect of the Commissioner’s determinations. The Commissioner’s determinations do not have any direct impact on, or connection with, any claim that might be made on the fidelity fund. The decision maker in respect of any claim on the fidelity fund will be different (i.e. the Society rather than the Commissioner), and in determining any claim on the fidelity fund, the Society will not be bound in any way by the Commissioner’s determinations. Further, and in any event, the concept of “fiduciary or professional default” for the purposes of a claim on the fidelity fund is separately defined in the Act, and does not correspond in any precise way with the concepts of misconduct (unsatisfactory or unprofessional conduct) the subject of consideration by the Commissioner. The connection between the Commissioner’s decisions and the foreshadowed claim on the fidelity fund is at best an indirect and speculative one,[27] and in my view not sufficient to give the plaintiff standing to challenge the Commissioner’s decisions.
[27] Argos Pty Ltd v Corbell (2014) 254 CLR 394 at [36] (per French CJ and Keane J), and [58], [62]-[63] (per Hayne and Bell JJ).

Plainly the persons with the greatest interest in the outcome of the complaints, and hence most directly affected by the Commissioner’s determinations, are the Practitioners themselves. An adverse decision could, and in all likelihood would, have significant professional and reputational ramifications for them. The plaintiff, on the other hand, cannot point to any private right or economic interest of his that will be affected by the decision. He cannot point to any material or tangible advantage or disadvantage that he will receive or suffer as a result of the determinations. Nor does he stand to suffer any professional or reputational consequence as a result of the Commissioner’s determinations. A distinction needs to be observed, in this respect, between the Court’s earlier decisions in relation to the charges against the plaintiff that he says were (or may have been) affected by the Practitioners’ conduct, and decisions or determinations of the Commissioner in relation to his investigation of the Practitioners’ conduct. While the former had a potentially significant effect on the plaintiff’s legal rights, and financial and reputational interests, the latter have not (and will not).
Focussing on the Commissioner’s decisions or determinations in the course of his investigation of the Practitioners’ conduct, the mere fact that the Practitioners are the most affected by the decisions does not, however, exclude the possibility that the plaintiff has an interest in the subject matter of those decisions sufficient to give him standing to seek judicial review. Nor is the absence of any legal or material impact from those decisions necessarily fatal. As the authorities make plain, while a mere intellectual concern will not suffice, a person with a particular interest in, or who is particularly affected by, the subject matter of the decision may have standing if their interest or affection is substantially greater than, or different from that of ordinary members of the public.
In this respect, it is significant that the plaintiff is both the complainant under the Act and the person said to have been wronged by the alleged misconduct the subject of the complaint.
As to the plaintiff’s status as a complainant, s 77B(2) of the Act requires that the Commissioner commence an investigation upon receipt of a complaint, regardless of the identity of the complainant. In addition to this, the Act affords the complainant significant procedural rights in respect of the subsequent investigation. I have earlier summarised the nature and extent of the rights of the complainant in certain circumstances to make submissions, be notified of the outcome of the complaint, and bring an appeal. On the other hand, the Act expressly confines the complainant’s rights in other circumstances. For example, it expressly precludes any requirement to give a complainant the right to be heard before determining to close a complaint under s 77C, and it does not provide any right of appeal in respect of a decision under s 77C or in the present situation.
While the plaintiff’s status as a complainant gives him some interest in the investigation and outcome of a complaint he has made, as is implicitly recognised by the procedural rights afforded to a complainant under the Act, it does not in my view follow that every complainant will always have a sufficient interest in the underlying subject matter of the complaint to afford him or her standing to judicially review any (or every) decision made by the Commissioner in respect of that complaint.
For example, a person who complains of alleged misconduct by a practitioner that did not involve or affect them in any way may well not have a sufficiently close or special interest to give them standing. In that scenario, the person may have no more than a mere intellectual concern. Even if they have a sense of grievance, or seek the satisfaction of upholding some principle, this will generally be insufficient to establish an interest in the subject matter of the complaint that goes beyond that which any member of the public might have.
On the other hand, it seems to me that where the person is not only the complainant, but also a person directly affected by the conduct complained of, they will likely have a sufficient interest.
The obvious example is where the complaint relates to the complainant’s own solicitor or barrister. Regardless of the impact (if any) of the conduct complained of on the legal rights or material interests of the client complainant, if he or she is the ‘victim’ or ‘object’ (to use a neutral term) of the alleged misconduct, then this will ordinarily give them a sufficient interest in the outcome of the complaint to give standing to seek judicial review of the decisions made during the course of investigating the complaint. They will have an interest that is greater than that of a member of the public, and in all likelihood greater than that of any other person not the object of the conduct in question. Even if they do not have any proprietary, financial, reputational or other material interest in the outcome of a complaint they make to the Commissioner in relation to that conduct, I consider that their interest in the subject matter of their complaint, and in having their complaint properly investigated and determined, goes beyond a mere intellectual interest. They will ordinarily have a special interest sufficient to establish standing to judicially review decisions made by the Commissioner.
In my view, similar observations are apposite in the case of a complainant who, while not a client of the practitioner in question, was nevertheless the object of (or a person directly or particularly affected by) the conduct complained of. That is the case here given that the complaint by the plaintiff is one that the Practitioners did not disclose information to the Court (or to the plaintiff) in the course of their prosecution of an aspect of the criminal proceedings against the plaintiff.
In this respect, I note the concession or submission by the Commissioner to the effect that the plaintiff would be a “person claiming to be aggrieved” by reason of the Practitioners’ alleged misconduct for the purposes of establishing ‘standing’ on the part of the plaintiff to commence proceedings before the Tribunal under s 82(2)(d) of the Act. The Commissioner made this submission in support of his contention that the plaintiff has an alternative remedy available to him that he ought to pursue. However, in my view, it is a concession that was properly made, and importantly for present purposes, implicitly acknowledges a relevant connection between the plaintiff and the alleged misconduct that is the subject of his complaint (and hence the Commissioner’s determinations).
The reasons of White J in Viscariello v Livesey[28] are of assistance in this context. The plaintiff in that case brought proceedings in the Tribunal alleging misconduct by the defendant barrister in his conduct of proceedings in which the plaintiff was the solicitor for the other party. In rejecting the plaintiff’s contention that he was a person aggrieved for the purposes of s 82(2)(d) of the Act, White J said:[29]
In my opinion, subs (2)(d) can be understood as using a shorthand composite expression to vest standing in those persons who have a particular kind of relationship with the charged unprofessional or unsatisfactory conduct. Complainants will establish that relationship if they show that, on the hypothesis that the charged professional or unsatisfactory conduct did occur, they are persons who, considered objectively, are really and directly affected by that conduct. If subs (2)(d) is understood in this way, meaning is given to all its words. Accordingly, complainants will not establish standing if their interest is no more than academic, emotional or of an intermeddling kind.
[28] Viscariello v Livesey [2013] SASC 99.
[29] Viscariello v Livesey [2013] SASC 99 at [63].
Adapting the language of White J to the present case, it is my view that the plaintiff was “really and directly affected” by the alleged misconduct of the Practitioners. His interest in the subject matter of the complaint was more than “academic, emotional or of an intermeddling kind.”
White J was, of course, concerned with a different issue, namely the statutory test for standing to commence proceedings in the Tribunal, as opposed to the general law test for standing to review a decision of the Commissioner in respect of a complaint made to him. The former may involve a broader and more liberal test, or at least a greater focus on the effect of the alleged misconduct on the plaintiff (as opposed to the effect of the Commissioner’s decisions upon the plaintiff). However, given they involve the same underlying subject matter, it seems to me that similar considerations will be relevant in both situations.
In summary, I am satisfied that by reason of the combination of the plaintiff’s status as the complainant under s 77B(2)(b), and the fact that he was the object of (and really and directly affected by) the alleged misconduct complained of, the plaintiff has at least reasonable prospects of establishing standing to seek judicial review of the Commissioner’s determinations of 21 May 2015. I am not prepared to summarily dismiss or strike out his proceedings for lack of standing.
Of course, a conclusion that the plaintiff has standing does not entitle the plaintiff to a substantive or merits based review of the Commissioner’s determinations. The review will be confined to a consideration of the lawfulness of those determinations in accordance with whatever grounds for judicial review are legitimately available to the plaintiff. It will also be subject to any discretionary grounds that might exist for refusing to grant the relief sought. It is to one of the discretionary grounds raised by the Commissioner that I now turn.
Discretionary refusal to entertain judicial review
It is well accepted that both equitable relief in the form of a declaration, and prerogative relief in the nature of certiorari, are discretionary. It is also well accepted that the failure by a plaintiff to pursue an alternative remedy may result in that discretion being exercised so as to withhold the relief sought.[30]
[30] Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501 at [133]-[141], citing R v Inland Revenue Commissioners; Ex parte Preston [1985] AC 835 at 852; R v Epping & Harlow General Commissioners; Ex parte Goldstraw [1983] 3 All ER 257 at 262; R v Chief Constable of the Merseyside Police; Ex parte Calveley [1986] QB 424 at 433; Prescott v Legal Practitioners Disciplinary Tribunal [2009] SASC 309 at [123], [126].
However, before reaching a conclusion that it is appropriate to exercise the court’s discretion to decline the relief sought on the ground that an alternative remedy is available, it is necessary to give close attention to the nature of the alternative remedy. It has been said that the relevant consideration is whether there is an alternative remedy that is no less efficacious than the proposed judicial review proceedings, [31] or is an equally effective and convenient remedy.[32]
[31] Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501 at [138].
[32] Carnley v Grafton Ngerrie Local Aboriginal Land Council [2010] NSWSC 837 at [101].
The obvious case in which the discretion might be exercised against a plaintiff seeking judicial review is where that plaintiff has a statutory right of appeal against the relevant decision, but seeks instead to judicially review that decision. Depending upon limitations that might exist in relation to the right of appeal, an appeal may be just as efficacious as judicial review proceedings in addressing the plaintiff’s concerns. Indeed, given that appeals generally extend to merits based challenges to a decision, they are often more efficacious than judicial review.
While this is the ordinary case in which the discretion will be exercised against the plaintiff, the discretion is not confined to situations involving an alternative remedy in the form of a right of appeal. However, in all cases there will need to be close consideration of the nature and effectiveness of the alternative remedy or remedies relied upon as warranting an exercise of the court’s discretion not to grant the relief sought. Where a no less efficacious alternative remedy exists, this will be a powerful consideration in favour of an exercise of the court’s discretion not to grant the relief sought. However, it is not conclusive. In some cases there may nevertheless be good reason to grant the plaintiff the relief sought despite the existence of an alternative remedy.[33]
[33] Jackson v Chrisp [2013] WASC 380 at [30]; R v Chief Constable of the Merseyside Police; Ex parte Calveley [1986] QB 424 at 433
Here, the Commissioner contends that the plaintiff has failed to pursue alternative remedies available to him. He contends that having been disappointed by the Commissioner’s 21 May 2015 determinations, the plaintiff could have and should have commenced his own proceedings against the Practitioners in the Tribunal. Alternatively, or in addition, he could have commenced civil proceedings against the Practitioners. The Commissioner contends that not only were these alternative remedies available, but also they were more appropriate than judicial review proceedings given that the plaintiff clearly wants a substantive review of the underlying merits of his complaint rather than a mere review of the legality of the Commissioner’s determinations.
In considering the alternative remedies potentially available to the plaintiff, the starting point is that the Act does not afford the plaintiff any right of appeal to the Tribunal in respect of the Commissioner’s determinations of 21 May 2015. As explained above, the plaintiff (as complainant) is conferred with a right of appeal to the Tribunal in certain circumstances – for example, in respect of an exercise of the Commissioner’s disciplinary powers under ss 77J(1), (2) or (3). Such appeals would permit a merits based challenge. Here the plaintiff has no statutory entitlement to a merits based appeal.
I do not consider that the plaintiff’s right under s 82(2)(d) of the Act to commence fresh proceedings against the Practitioners in the Tribunal is sufficient in the circumstances of this case to deprive the plaintiff of reasonable prospects of avoiding an exercise of the court’s discretion to decline relief (assuming his claim otherwise succeeds). There are several, to some extent overlapping, reasons for this.
The first is that the Tribunal proceedings will not address the Commissioner’s determinations or investigation. They will not ensure the regularity and lawfulness of the Commissioner’s investigation of the plaintiff’s complaint. Having chosen at the outset to lodge a complaint with the Commissioner rather than issuing proceedings in the Tribunal, there is some force in the contention that the plaintiff should be entitled to continue down that path. That contention has particular force in the circumstances of this case given the amount of time and energy that have been devoted to the Commissioner’s investigation. An alternative remedy that involves starting again in another forum is hardly as efficacious as judicial review designed to ensure that the investigation already undertaken was, or is, regularly and lawfully undertaken and concluded.
Secondly, while the commencement of an investigation by the Commissioner does not expose the plaintiff to any order that he pay legal costs, the plaintiff would be so exposed on any proceedings in the Tribunal – particularly if they were unsuccessful.[34]
[34] Section 85(1) of the Act; Mericka v Rathbone [2016] SASCFC 95.
Thirdly, proceedings in the Tribunal are likely to be out of time. While this may be overcome by seeking an extension of time from the Tribunal under s 82(2a)(b), there is no certainty that an extension will be granted. The plaintiff contends that he should not be exposed to the risk of an extension not being granted.
For similar reasons, I do not consider that the possibility of the plaintiff issuing civil proceedings against the Practitioners is a reason to exercise the court’s discretion to decline the relief sought by the plaintiff (assuming he can otherwise establish a basis for that relief). Those proceedings would not address the criticisms made of the Commissioner’s investigation. They would require the plaintiff to start again, and they would expose him to a significant costs risk. Further, while covering similar factual matters, any such civil proceedings will give rise to different legal issues and obstacles, making their effectiveness as an alternative to judicial review somewhat doubtful.
On the other hand, the Commissioner emphasises the limitations upon judicial review proceedings, as opposed to proceedings in the Tribunal. The Commissioner points to the breadth of the plaintiff’s grounds for judicial review, noting that while generally couched in the language of orthodox judicial review grounds, they are in substance an attempt to obtain a review of the underlying merits of the complaint about the conduct of the Practitioners. Indeed, one of the heads of relief sought by the plaintiff is an order that his complaints be referred to the Tribunal for inquiry.
It may be that the plaintiff misunderstands the limited nature of the judicial review procedure. However, given the matters mentioned above, I am not satisfied that it is appropriate to summarily dismiss or strike out the plaintiff’s proceedings for judicial review on account of the availability of alternative remedies. While the Act provides a person in the plaintiff’s position with the option of commencing his own proceedings in the Tribunal if dissatisfied with the Commissioner’s investigation, I do not think this will always provide a discretionary basis for declining relief in judicial review proceedings. In the circumstances of this case, I am not satisfied that the plaintiff has no reasonable basis for avoiding an exercise of the discretion against him if he can otherwise establish a ground of review warranting intervention by this Court.
Conclusion
For the reasons set out, I am not satisfied that the plaintiff’s claim should be summarily dismissed or struck out on the basis that he has no reasonable grounds to establish standing, or to avoid an exercise of the court’s discretion to decline him relief.
I therefore dismiss the defendant’s application.