Murphy v Legal Services Commissioner - [2016] QSC 174

SUPREME COURT OF QUEENSLAND

CITATION:

Murphy v Legal Services Commissioner [2016] QSC 174

PARTIES:

JOHN PAUL MURPHY

(applicant)

v

LEGAL SERVICES COMMISSIONER

(respondent)

FILE NO/S:

BS6839/15

DIVISION:

Trial

PROCEEDING:

Application for a statutory order of review

DELIVERED ON:

8 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

4 March 2016, further submissions received 18 March 2016 and 4 April 2016

JUDGE:

Jackson J

ORDER:

The order of the Court is that:

1. The originating application is dismissed.

2. The applicant provide any submissions as to costs in writing of no more than 5 pages supported by any affidavit relied upon on that question on or before 15 August 2016.

3. The respondent provide any submission as to costs in writing of no more than 5 pages on or before 22 August 2016.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – GENERALLY – where the applicant made complaints to the respondent about the conduct of solicitors acting for an adverse party in litigation –where the respondent decided to dismiss the complaints relating to “Australian legal practitioners” pursuant to s 448 of the Legal Profession Act 2007 (Qld), and decided to no longer deal with the complaint relating to an “unlawful operator” pursuant to s 446 – where the applicant applied for a statutory order of review in relation to the decision – whether the respondent’s decision to dismiss the complaints under s 448 was a decision to which the Judicial Review Act 1991 (Qld) applies – whether the decision to dismiss the complaints conferred, altered or otherwise affected legal rights or obligations

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 9A
Legal Profession Act 2007 (Qld), ss 428, 446, 447, 448

Judicial Review Act 1991 (Qld), ss 16, 19, 20, 30, 48, sch 2

Attorney-General (Cth) v Oates (1999) 198 CLR 162; [1999] HCA 35, cited
Attorney-General (NT) v Emmerson (2014) 253 CLR 393; [2014] HCA 13, cited
Aye v Minster for Immigration and Citizenship (2010) 187 FCR 449; [2010] FCAFC 69, cited
Ayles v The Queen (2008) 232 CLR 410; [2008] HCA 6, not applied
Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48, cited
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27, cited
Churchill Fisheries Export Pty Ltd v Director-General of Conservation [1990] VR 968, cited
Director of Public Prosecutions (SA) v B (1998) 194 CLR 566; [1998] HCA 45, cited
Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7, applied
Hanna v Director of Public Prosecutions (NSW) (2005) 62 NSWLR 373; [2005] NSWSC 134, cited
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24, not applied
Leadpoint Pty Ltd v Legal Services Commissioner [2015] QSC 254, considered
Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA…

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: [2016] QSC 174
Decision Date: 8 August 2016

CaseChat Overview and Summary

In the case of Murphy v Legal Services Commissioner, the applicant sought a statutory order of review in relation to a decision made by the respondent, the Legal Services Commissioner, to dismiss complaints regarding the conduct of solicitors acting for an adverse party in litigation. The respondent dismissed the complaints under section 448 of the Legal Profession Act 2007 (Qld) regarding complaints about "Australian legal practitioners" and under section 446 regarding a complaint about an "unlawful operator". The primary legal issue before the court was whether the respondent’s decision to dismiss the complaints was a decision to which the Judicial Review Act 1991 (Qld) applied.

The court examined whether the decision to dismiss the complaints conferred, altered, or otherwise affected legal rights or obligations. The respondent argued that the decision was not a decision of an administrative character made under an enactment, and therefore not subject to the Judicial Review Act. The court considered its earlier decision in Leadpoint Pty Ltd v Legal Services Commissioner, where it was held that a decision to no longer deal with a complaint did not confer, alter, or otherwise affect legal rights or obligations, and thus was not subject to the Act. The applicant contended that the respondent was bound by an issue estoppel from arguing that the decision was not subject to the Act, but the court rejected this argument on the basis that the earlier decision did not establish an issue estoppel in favour of the applicant.

The court concluded that the decision to dismiss the complaints was not a decision to which the Judicial Review Act applied. The applicant's argument based on issue estoppel was also dismissed. The originating application was therefore dismissed, with orders for the parties to submit written costs submissions by specified dates.

Orders

Orders of the court

The order of the Court is that:

1. The originating application is dismissed.

2. The applicant provide any submissions as to costs in writing of no more than 5 pages supported by any affidavit relied upon on that question on or before 15 August 2016.

3. The respondent provide any submission as to costs in writing of no more than 5 pages on or before 22 August 2016.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In this case it is convenient to defer consideration of the respondent’s contention that the decision to dismiss the complaints and thereby not to start a discipline application is insusceptible of judicial review until after consideration of the next ground of the respondent’s application.Decision to which this Act applies As stated above, under s 4 of the JRA a “decision to which this Act applies” is defined as “a decision of an administrative character made … under an enactment (whether or not in the exercise of a discretion)”. The respondent’s second ground for summary dismissal is that the respondent’s decision to dismiss the complaints was not a decision to which the JRA applies. The respondent submits that conclusion follows from my decision in Leadpoint Pty Ltd v Legal Services Commissioner.[27] The applicant in that case had made a complaint about the conduct of a person as an unlawful operator in contravention of s 24 of the LPA. The respondent had referred the complaint to the QLS as the relevant regulatory authority under s 435. The QLS reported to the respondent and made a recommendation not to start a proceeding. The specific section relevant to that case was s 446 of the LPA. The relevant alternative to referring the complaint to the QLS in that case was that the respondent had decided “to no longer deal with the matter the subject of the complaint” under s 446(2)(d). That is to be compared with the decision to dismiss the present complaint which was made under s 448(1) in relation to all but one of the complaints in the present case.[27] [2015] QSC 254. In Leadpoint, I held that a decision to no longer to deal with the subject matter did not confer, alter or otherwise affect legal rights or obligations.[28] Because of that, in my view, the decision was not one that was a “decision of an administrative character made … under enactment (whether or not in the exercise of discretion)” within the meaning of s 4 of the JRA. Accordingly, it was not a decision to which the JRA applied. [28] [2015] QSC 254, [30]. In reaching that conclusion, I referred to the earlier case between the present disputants in Murphy v Legal Services Commissioner.[29]In that case, Daubney J set aside a decision made by the respondent on 8 March 2011 to dismiss the same complaints as are the subject of the present proceeding. However, the question whether that decision was one to which the JRA applied was not argued. Daubney J specifically noted that it was not suggested that the respondent’s decision in that case was not a decision of an administrative character made under an enactment and was not a decision to which the JRA applied.[30][29] [2013] QSC 70.[30] [2013] QSC 70, [57]. The applicant submits that if my decision in Leadpoint would otherwise apply, as between the present parties, the respondent was bound by an issue estoppel that a decision under s 448 to dismiss the applicant’s complaint is a decision to which the JRA applies. In my view, that contention is misconceived. First, that is because the present decision is not the same decision as that set aside by Daubney J. Accordingly, there is no res judicata. Second, that is because the present point of dispute was not decided upon the earlier application so as to create an issue estoppel. It was simply assumed in the applicant’s favour.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Murphy v Legal Services Commissioner [2016] QSC 174
PARTIES:	JOHN PAUL MURPHY (applicant) v LEGAL SERVICES COMMISSIONER (respondent)
FILE NO/S:	BS6839/15
DIVISION:	Trial
PROCEEDING:	Application for a statutory order of review
DELIVERED ON:	8 August 2016
DELIVERED AT:	Brisbane
HEARING DATE:	4 March 2016, further submissions received 18 March 2016 and 4 April 2016
JUDGE:	Jackson J
ORDER:	The order of the Court is that: 1. The originating application is dismissed. 2. The applicant provide any submissions as to costs in writing of no more than 5 pages supported by any affidavit relied upon on that question on or before 15 August 2016. 3. The respondent provide any submission as to costs in writing of no more than 5 pages on or before 22 August 2016.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – GENERALLY – where the applicant made complaints to the respondent about the conduct of solicitors acting for an adverse party in litigation –where the respondent decided to dismiss the complaints relating to “Australian legal practitioners” pursuant to s 448 of the Legal Profession Act 2007 (Qld), and decided to no longer deal with the complaint relating to an “unlawful operator” pursuant to s 446 – where the applicant applied for a statutory order of review in relation to the decision – whether the respondent’s decision to dismiss the complaints under s 448 was a decision to which the Judicial Review Act 1991 (Qld) applies – whether the decision to dismiss the complaints conferred, altered or otherwise affected legal rights or obligations Administrative Decisions (Judicial Review) Act 1977 (Cth), s 9A Legal Profession Act 2007 (Qld), ss 428, 446, 447, 448 Judicial Review Act 1991 (Qld), ss 16, 19, 20, 30, 48, sch 2 Attorney-General (Cth) v Oates (1999) 198 CLR 162; [1999] HCA 35, cited Attorney-General (NT) v Emmerson (2014) 253 CLR 393; [2014] HCA 13, cited Aye v Minster for Immigration and Citizenship (2010) 187 FCR 449; [2010] FCAFC 69, cited Ayles v The Queen (2008) 232 CLR 410; [2008] HCA 6, not applied Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48, cited Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27, cited Churchill Fisheries Export Pty Ltd v Director-General of Conservation [1990] VR 968, cited Director of Public Prosecutions (SA) v B (1998) 194 CLR 566; [1998] HCA 45, cited Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7, applied Hanna v Director of Public Prosecutions (NSW) (2005) 62 NSWLR 373; [2005] NSWSC 134, cited Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24, not applied Leadpoint Pty Ltd v Legal Services Commissioner [2015] QSC 254, considered Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA…