Mendonca v Legal Services Commissioner - [2019] NSWSC 409

Supreme Court

New South Wales

Medium Neutral Citation: Mendonca v Legal Services Commissioner [2019] NSWSC 409
Hearing dates: 5 April 2019
Date of orders: 16 April 2019
Decision date: 16 April 2019
Jurisdiction: Common Law
Before: Wilson J
Decision:
1. The summons filed on 12 July 2018 is dismissed.
2. The plaintiff is to pay the defendant’s costs on an ordinary basis, as agreed or assessed.

Catchwords: ADMINISTRATIVE LAW LIST – complaint against solicitor – complaint out of time – refusal of Legal Services Commissioner to conduct an internal review – absolute discretion – whether orders in the nature of certiorari and mandamus lie – summons dismissed – no point of principle
Legislation Cited: Legal Profession Uniform Law (NSW)
Supreme Court Act 1970 (NSW)
Cases Cited: Hossain v Minister for Immigration and Border Control (2018) 780
Hot Holdings v Creasy (1996) 185 CLR 149
House v The King [1936] HCA 40; (1936) 55 CLR 499
Kirk v Industrial Relations Commission (2010) 239 CLR 531
Mendonca v Chan & Naylor (Parramatta) Pty Ltd [2014] FCC 1042
Mendonca v Chan & Naylor (Parramatta) Pty Ltd as Trustee for Chan & Naylor (Parramatta) Trust, unreported decision of the District Court of NSW, 12 June 2014
Mendonca v Chan & Naylor (Parramatta) Pty Ltd as Trustee for Chan & Naylor (Parramatta) Trust, unreported decision of the District Court of NSW, 27 June 2014
Mendonca v Chan & Naylor (Parramatta) Pty Ltd as Trustee for Chan & Naylor (Parramatta) Trust, unreported decision of the District Court of NSW, 6 November 2015
Mendonca v Dooley & Associates Solicitors Pty Ltd [2016] NSWCA 144
Murlan Consulting Pty Ltd v Ku-Ringai Municipal Council [2009] NSWCA 300
The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13
Category: Principal judgment
Parties: Gerard Mendonca (Plaintiff)
Legal Services Commissioner (Defendant)
Representation:
Counsel:
Gerard Mendonca as unrepresented litigant appearing in person (Plaintiff)
Ms R Withana (Defendant)
Solicitors:
Ms S Gulliver of the Office of the Legal Services Commissioner (Plaintiff)

File Number(s): 2018/00214619
Publication restriction: None

Judgment

HER HONOUR: This judgment deals with the latest litigation commenced by the plaintiff, Gerard Mendonca, relevant to action he has taken against the lawyers who acted for him in court proceedings commenced in 2012. His summons was filed on 12 July 2018 and the matter came on for hearing before me on 5 April 2019.
The plaintiff seeks declarations declaring invalid or otherwise setting aside a decision made by the defendant, the Legal Services Commissioner (“LSC”), on 16 April 2018, and compelling the Commissioner to take particular action.
I reserved judgment and reasons until today.

The History of the Matter

The background to this action is of some relevance.
The plaintiff commenced proceedings in the District Court against his employer, Chan & Naylor (Parramatta) Pty Ltd, in June 2012 claiming that he was entitled to an unpaid bonus. At that stage, he was employed by the firm as an accountant; his employment was terminated in August 2012.
The plaintiff’s…

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: [2019] NSWSC 409
Decision Date: 16 April 2019

CaseChat Overview and Summary

In the Federal Court, Mendonca sought judicial review of a decision by the Legal Services Commissioner to refuse a request for an internal review of a complaint against a solicitor. The complaint was lodged more than six months after the events complained of, which was outside the statutory time limit. The applicant argued that the Commissioner should have exercised their discretion to extend the time limit for review. The Commissioner refused to conduct an internal review, asserting that the complaint was out of time.

The court was required to determine whether the Commissioner's decision to refuse an internal review was subject to judicial review and, if so, whether the Commissioner had exercised their discretion appropriately. The court considered whether orders in the nature of certiorari and mandamus could lie against the Commissioner, given that the Commissioner's powers were statutory and discretionary. The court also examined whether the Commissioner's decision was unlawful or otherwise subject to judicial review.

The court found that the Commissioner's decision was not subject to judicial review as it was not an exercise of a statutory power, but rather a decision not to exercise a discretion. The court held that the Commissioner had absolute discretion to decide whether to conduct an internal review and that this discretion was not subject to judicial review. The court further found that there was no point of principle that warranted the grant of relief in this case. Consequently, the summons was dismissed.

No orders were made by the court as the summons was dismissed.

Orders