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

1. 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.

2. 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.

3. I reserved judgment and reasons until today.

The History of the Matter

4. The background to this action is of some relevance.

5. 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.

6. The plaintiff’s claim rested principally upon conversations he claimed to have had with the managing director, and separately, the general manager of the company, in 2006 and 2008 respectively, together with a document described as a “Bonus Policy” that the plaintiff asserted applied to his employment.

7. His employer denied that the conversations had been held and disputed the authenticity of the Bonus Policy document.

8. The plaintiff was represented by a solicitor from a firm of solicitors (“the solicitor”), and counsel (“the barrister”) was retained to conduct the seven day hearing that ensued before Balla DCJ.

9. The litigation did not go well for the plaintiff, and his claim was dismissed in June 2014. In rejecting his claim, her Honour concluded that the plaintiff was not a reliable witness; she did not accept his evidence, or that of his wife, who was called as a witness in his case. The trial judge did not accept that the Bonus Policy was a legitimate document, concluding that the plaintiff had created it himself for the purposes of advancing his claim: 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.

10. In a separate judgment later in June 2014 the plaintiff was ordered to pay the costs of his former employer on an indemnity basis. The trial judge held that the plaintiff should have understood the strength of the defence case: 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.

11. Separately, in November 2012, the solicitor filed a claim on the plaintiff’s behalf in the (then) Federal Magistrates Court alleging that the employer had unlawfully terminated his employment. The hearing of that claim took place over four hearing days in April 2014, with the plaintiff represented by the solicitor, briefing counsel other than the barrister. Other than establishing an entitlement to 10 days annual leave, the plaintiff’s claim was unsuccessful. It was dismissed in June 2014: Mendonca v Chan & Naylor (Parramatta) Pty Ltd [2014] FCC 1042.

12. The plaintiff next sought orders in the District Court against the solicitor and the barrister, asking the Court to direct them to personally pay the indemnity costs that had been awarded against him by Balla DCJ. The hearing lasted for five days before McLoughlin SC DCJ, who dismissed the claim: 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.

13. It appears that the plaintiff argued that the solicitor and the barrister should have advised him that his evidence in support of the bonus claim was not believable, and thus to withdraw it (p. 17, decision of 6 November 2015).

14. The plaintiff sought to have the orders set aside, but that action too was unsuccessful, with Judge McLoughlin dismissing the plaintiff’s motion on 18 November 2015.

15. The plaintiff was not content with the decision of McLoughlin SC DCJ, and sought leave to appeal in the Court of Appeal. Leave was subsequently refused: Mendonca v Dooley & Associates Solicitors PtyLtd [2016] NSWCA 144. The Court of Appeal concluded, at [49]-[50], that,

The applicant has not demonstrated that he has an arguable case that the decision of the primary Judge was wrong. Nor has he shown that he would suffer injustice if leave is refused. The applicant’s liability to pay indemnity costs to his Employer arose because, on the unchallenged findings of Balla DCJ, he persisted in mounting a case which he knew was false in material respects. Yet he consistently maintained to the Solicitors and the Barrister that his evidence was truthful.

The application for leave to appeal must be dismissed. The applicant must pay the costs of the Solicitors and the Barrister.

16. Significantly out of time, the plaintiff’s next action was an application to the Court of Appeal for an extension of time in which to seek leave to appeal the orders of Balla DCJ from June 2014. Necessarily, the plaintiff now contended that her Honour’s conclusions were erroneous, despite having taken the opposite stance in the litigation before McLoughlin SC DCJ. Although they had not been joined to the proceedings, the plaintiff also asked for orders against the solicitor and the barrister reversing the order for costs made earlier by the Court of Appeal, extracted at [15] above. In support of his application, the plaintiff swore an affidavit making serious claims against the lawyers, including fraud and perjury.

17. The Court of Appeal gave ex tempore judgment and refused an extension of time in which to appeal. Leeming JA, with whom Meagher JA agreed, concluded at [12] that,

This is a clear case where the application to extend time should be refused, on the basis that the proposed grounds are, at best, very weak, the delay is extensive, and the argument sought to be made is inconsistent with that made and maintained by Mr Mendonca in the intervening period. I propose that the summons filed 8 July 2016 and the notice of motion filed 8 August 2016 be dismissed with costs (Mendonca v Chan & Naylor (Parramatta) Pty Ltd [2016] NSWCA 246).

18. On 23 January 2017 the plaintiff complained to the LSC about the solicitor’s conduct in the period of the earlier litigation, 14 August 2012 to 5 October 2015, asserting criminal conduct by the solicitor, amongst other wrongdoing.

19. The LSC referred the complaint to the Director, Professional Standards of the Law Society of NSW (“the Law Society”) to be dealt with in accordance with Chapter 5 of the Legal Profession Uniform Law (NSW) (“the LP Law”).

20. On 15 December 2017 the Law Society determined that the plaintiff’s complaint was out of time, s 272(1) of the LP Law providing for a three year limitation on such complaints. Although it had the power to do so pursuant to s 272(1)(a) and (b), the Law Society declined to waive the time limitation. Pursuant to s 277, the Law Society closed the plaintiff’s complaints, concluding that they were misconceived, and / or lacking in substance.

21. On 21 December 2017 the plaintiff sought internal review of the decision of the Law Society pursuant to s 313 of the LP Law. He made submissions in support of his application for review.

The Decision Under Challenge

22. The application made by the plaintiff asked the LSC to exercise the discretion granted to him by s 313 of the LP Law. That provision is in these terms:

313   Internal review of decisions of local regulatory authority

(1)  The designated local regulatory authority may (at its absolute discretion) conduct an internal review of a decision made by the designated local regulatory authority (or its delegate) if the designated local regulatory authority considers it appropriate to do so.

(2)  On the review, the designated local regulatory authority is to consider whether the decision was dealt with appropriately and whether the decision was based on reasonable grounds.

(3)  On the review, the designated local regulatory authority may confirm the original decision, make a new decision, or refer the matter back to the original decision-maker.

23. On 16 April 2018 the LSC wrote to the plaintiff advising him that he had decided not to exercise his discretion to conduct an internal review of the decision of the Law Society of 15 December 2017. In part, the LSC said,

Having carefully considered the matter, I have determined not to exercise my discretion, and I will not be conducting a review of the decision.

I am declining to exercise my absolute discretion, having regard to public interest considerations (including resource allocation), and having considered your submissions on review.

Notwithstanding the fact that I am not required to assess the merits of your review request, I am satisfied that there is no obvious error in the decision under review, which warrants a detailed review of the decision pursuant to ss313(2) and (3) of the Uniform Law.

There is a public interest in ensuring the finality of matters that have already been determined by a Court of competent jurisdiction. The principle of finality is well-established and is not limited to the resolution of issues between the parties: see D’Orta Ekenaike v Victorian Legal Aid [2005] HCA 12 at [36]. The principle of finality is also not limited to the remedies sought.

In my view, and notwithstanding your submissions to the contrary, the issues raised in the complaint under review are substantially the same issues that were heard and determined by McLoughlin DCJ, and then by the NSW Court of Appeal. Even if the remedies being sought, or the parties, are different in the complaints process, the issues are substantially the same.

24. This is the decision that the plaintiff asks this Court to review.

The Application to this Court

25. In his summons the plaintiff seeks the following relief:

A declaration under s 65 and/or s 69 and/or s 75 of the Supreme Court Act 1970 that decision of 16 April 2018 of Legal Services Commissioner is invalid.

An order under s 65 and/or s 69 and/or s 75 of the Supreme Court Act 1970 in the nature of certiorari quashing or setting aside decision of 16 April 2018 of Legal Services Commissioner and referring the matter to Legal Service Commissioner for further consideration.

An order under s 65 and/or s 69 and/or s 75 of the Supreme Court Act 1970 in the nature of mandamus requiring Legal Services Commissioner to perform its duty.

An order that each party pay the costs of the judicial review application brought only in the interest of and protection of the public.

Any orders the Court sees fit on its own motion as applicant is self-represented.

26. The plaintiff asserts that, in making his decision of 16 April 2018, the LSC erred in two ways. It is contended that the,

Legal Services Commissioner erred in not following procedures that were required by law to be observed in connection with the making and reviewing of the decision and denied procedural fairness to the applicant.

Legal Services Commissioner decision involved jurisdictional error and errors of law, whether or not the errors appear on the record of the decision, erred in causing a breach of the rules of natural justice occurred in connection with the making of the decision and the decision was otherwise contrary to the law in House v The Kingsense.

27. The plaintiff relied upon his affidavit dated 30 August 2018. The defendant relied upon two affidavits of John McKenzie dated 11 September 2018 and 14 November 2018.

Consideration

28. Having considered the plaintiff’s evidence and submissions I am not persuaded that the LSC fell into error, or that the intervention of this Court is warranted.

29. The plaintiff seeks to invoke the supervisory jurisdiction of the Court pursuant to s 69 of the Supreme Court Act 1970 (NSW). In Kirk v Industrial Relations Commission (2010) 239 CLR 531 at [98] the High Court referred to that jurisdiction in this way:

The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court.

30. For this Court to intervene, it is necessary to identify jurisdictional error. Jurisdictional error was explained in Hossain v Minister for Immigration and Border Control (2018) 780 at [24] in this way:

Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. To describe a decision as "involving jurisdictional error" is to describe that decision as having been made outside jurisdiction. A decision made outside jurisdiction is not necessarily to be regarded as a "nullity", in that it remains a decision in fact which may yet have some status in law. But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as "no decision at all" (footnotes omitted).

31. Thus, the plaintiff must establish that the LSC made an error in the decision making process that materially affected the jurisdiction being exercised.

32. The LSC raised an initial question as to whether he had made a decision which was amenable to an order in the nature of certiorari or mandamus (the relief sought). The Court was referred to Hot Holdings v Creasy (1996) 185 CLR 149 at [161], where it was held that, for a decision to attract certiorari, the decision must directly determine, or affect, a right that the plaintiff has. Raised for the Court’s consideration is the prospect that the plaintiff has no “right” in the sense necessary for certiorari and mandamus to lie. At [158] of Hot Holdings, Brennan CJ, Guadron and Gummow JJ said,

It once was customary, at least in England, to begin any consideration of the scope of certiorari with reference to the dictum of Atkin LJ in R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) that certiorari lies against a decision which is of such a nature as "to determine questions affecting the rights of subjects". Professor Sir William Wade dubbed this passage in Atkin LJ's judgment "(c)anonical".However, it is important also to bear in mind that the scope of certiorari has developed from time to time to meet changing conditions [footnotes omitted].

33. Further, at [159],

Thus, for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing.

34. Here, the plaintiff had a restricted right to complain about a legal representative, as provided by s 266 of the LP Law, which says,

266   Who may make a complaint?

(1)  Any person or body may make a complaint.

35. Section 272(1) imposes a restriction on the exercise of that right, requiring the complainant to bring any complaint within 3 years of the relevant conduct. It provides:

272   Time limits on making complaints

(1)  Subject to subsection (2), a complaint must be about conduct alleged to have occurred within the period of 3 years immediately before the complaint is made, but the designated local regulatory authority may waive the time requirement if satisfied that—

(a)  it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay; or

(b)  the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint.

36. The plaintiff exercised the right he had to complain. His complaint was not fully investigated because he did not comply with s 272(1), and the Law Society was not satisfied of either of those matters referred to in s 272(1)(a) or (b).

37. Since the plaintiff’s complaint to the LSC was outside the statutory time limit, he either had no right to complain that could be affected by the decision of the LSC not to exercise his discretion to review the decision of the Law Society, or, such right as he had had was fully exercised. That is particularly so given that, even had the Law Society decided to take the complaint further, and proceedings before the Civil and Administrative Tribunal New South Wales had been contemplated, the plaintiff had no rights connected with such action.

38. There are also the terms of s 313 of the LP Law to consider, in that s 313(1) confers an “absolute discretion” on the LSC to conduct an internal review if he considered it appropriate to do so. The LP Law imposes no duty on the LSC, and does not circumscribe in any way the exercise of the discretion, or dictate any mandatory or even suggested considerations. Where there is no duty for the decision maker to act, or act in a particular way, an order in the nature of mandamus is not available.

39. In such circumstances, I am unable to conclude that the remedies sought by the plaintiff are available.

40. The plaintiff complains of a denial of procedural fairness, but was not able to explain to the Court how he was treated unfairly, given that he was permitted to make submissions to the LSC in support of his application for an internal review to be conducted, and the LSC considered those submissions. I am satisfied that there was no denial of procedural fairness.

41. The other complaint, which asserts “House v The King” errors, a reference to House v The King [1936] HCA 40; (1936) 55 CLR 499, goes to the merits of the decision of the Law Society. Decisions of fact by a decision maker are not amenable to challenge of the nature made by the plaintiff, and cannot be corrected by relief of the nature the plaintiff seeks.

36. Even if I am wrong in the foregoing conclusions, and merit is a relevant issue, I am not persuaded that there has been any wrong conclusion by the relevant decision maker. Mr Mendonca has been agitating these issues for a number of years now. His complaints have been considered, either directly or indirectly, in the District Court and in the Court of Appeal, and by the Law Society and the LSC, at great expense to the litigants and to the community in the expenditure of valuable legal resources. His complaints have never been upheld. There is no basis at all to conclude that, if the LSC reconsidered the exercise of his absolute discretion, any outcome desired by the plaintiff would be produced. Indeed, the credible evidence suggests to the contrary. Mr Mendonca has now been pursuing his former legal representatives for years; the time has come for that pursuit to end.

A Note Concerning Representation

43. The plaintiff appeared for himself in these proceedings.

44. The LSC, the defendant named in the summons, was represented by a solicitor and counsel. No other person or agency appeared or sought to be joined or to intervene.

45. It is perhaps somewhat unusual for the tribunal, office, or officer whose decision is under challenge to appear as a litigant. The Hardiman Principle, ordinarily requires a decision maker to submit to the orders of the court without doing more. The principle is derived from the High Court decision of The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13, where the court said, at [35]-[36],

Mr. Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors' case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.

46. The evidence is that, having been served with the plaintiff’s summons, the LSC wrote to both the solicitor and the Attorney-General inviting each to participate in these proceedings as an active contradictor. Neither was willing to take that role. Had the LSC not appeared, there would have been no active contradictor before the Court.

47. In Murlan Consulting Pty Ltd v Ku-Ringai Municipal Council [2009] NSWCA 300, Basten JA said, at [80],

It is sometimes said that the Hardiman principle involves an exception in respect of submissions which are limited to the powers and procedures of the tribunal. However, that is not strictly so: the High Court in Hardiman said that the presentation of a case by a tribunal should be regarded as "exceptional" and that where it occurs the presentation should be limited to submissions going to the powers and practices of the tribunal: at 36. The scope of possible exceptional cases was not explored, but must clearly be governed by the degree of inconsistency with the underlying principle, namely that the tribunal should not endanger its impartiality. On that basis, it is true that impartiality will be less endangered by submissions unrelated to the substance of the issues which might come back before it, and will be less endangered in circumstances where the matter is unlikely to go back before the tribunal in any event. It may also be appropriate to grant some weight to the practical consideration that, without any appearance by the tribunal, the Court may be left without the valuable assistance which might be obtained from a contravener.

48. Here, the LSC appeared in response to the summons, and gave the Court the sort of “valuable assistance” that Basten JA referred to in Murlan Consulting. Particularly where the only other litigant was unrepresented, it was of great assistance to the Court to have the benefit of counsel’s submissions as to the relevant law and principles, and the functions of the Law Society and the LSC under the LP Law. Without that assistance the Court’s task would have been considerably more burdensome.

49. In the circumstances of this matter, and having regard to the conservative and non-partisan conduct of the case by counsel for the LSC, I am satisfied that the defendant’s appearance was both proper and helpful to the Court.

Costs

50. The question of costs was raised with the parties at the conclusion of the hearing and each was given an opportunity to make submissions as to whether a costs order should be made against the unsuccessful party. The LSC submitted that costs should follow the event in the usual way. The plaintiff submitted that each party should bear its own costs. Particularly, he submitted that there should be no order as to costs against him. He submitted that he had taken action against the LSC from an altruistic concern that only those fit to practice law should be permitted to do so, and at all times had acted in the public interest. He submitted that he should not bear the LSC’s costs on that basis.

51. I do not accept that Mr Mendonca was motivated by concern for the public in bringing this litigation. It would appear that, having found himself the subject of unpalatable findings by courts, and unpalatable costs orders against him, he has, without grounds, and taking inconsistent positions from time to time, sought to blame his legal representatives, using the courts to that end. This action simply continued that unjustified pursuit.

52. The LSC has been put to the expense of responding to the summons, and is entitled to his costs.

orders

53. The orders of the Court are:

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.

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Decision last updated: 17 April 2019