Mericka v Rathbone

Mr Mericka appealed to the Full Court of the Supreme Court of South Australia against decisions of the Disciplinary Tribunal. The Tribunal had dismissed a charge of professional misconduct against Ms Rathbone and subsequently awarded costs against Mr Mericka. Ms Rathbone, the Director of the Legal Practitioners Complaints Board, was charged with unprofessional conduct or unsatisfactory professional conduct for providing documents from a closed complaint file to Mr Lieschke, a legal practitioner who had previously been the subject of a complaint by Mr Mericka.

The primary legal issues before the Full Court were whether Ms Rathbone's conduct in providing the documents to Mr Lieschke constituted "conduct in the course of, or in connection with, legal practice" as defined by the Legal Practitioners Act 1981 (SA), and whether her actions breached section 73 of that Act by disclosing confidential information. The Court also considered whether, even if a breach occurred, it amounted to unprofessional or unsatisfactory professional conduct.

The Full Court reasoned that Ms Rathbone's role as Director of the Board was primarily administrative, and her actions in retrieving and forwarding documents from a closed file, even though she held a practising certificate and had regard to legal principles, did not amount to the practice of law as contemplated by the Act. The Tribunal had found that she was performing an administrative task, and the Full Court agreed with this conclusion, noting that the Act's definitions of legal practice did not encompass such administrative functions. Consequently, the Court found that the charge of unprofessional or unsatisfactory professional conduct was not made out.

The Full Court allowed the appeal against the dismissal of the charge against Ms Rathbone, setting aside that decision. It also allowed the appeal against the costs order made by the Tribunal, setting aside that order as well. The matter was remitted to the Tribunal for further consideration of costs.