Murphy v Legal Services Commissioner - [2013] QSC 70

SUPREME COURT OF QUEENSLAND

CITATION:

Murphy v Legal Services Commissioner [2013] QSC 70

PARTIES:

JOHN PAUL MURPHY
(applicant)
v
LEGAL SERVICES COMMISSIONER
(respondent)

FILE NO:

BS7724 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application for statutory orders of review

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

22 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

13 July 2012

JUDGE:

Daubney J

ORDERS:

1.    The respondent’s decision of 8 March 2011, confirmed by the respondent’s reasons of 2 August 2011, is set aside;

2.    The applicant’s complaints made on 10 November 2009 are referred to the respondent for further consideration according to law;

3.    The respondent shall pay the applicant’s costs of and incidental to this application.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the applicant made a complaint to the respondent pursuant to Chapter 4 Part 4.4 of the Legal Profession Act concerning a solicitor and former solicitor – where the applicant is applying for statutory orders of review of the respondent’s decision not to take further action with respect to the complaint, pursuant to the Judicial Review Act (“JRA”) – where the respondent alleged that the applicant was not a “person aggrieved” for the purposes of the JRA – where the respondent erred in respect of the standard of proof which applies in disciplinary proceedings – where this misunderstanding informed the respondent’s decision-making process – where the respondent erred in respect of the nature of evidence which may be considered by a disciplinary tribunal when determining whether the standard of proof has been satisfied – where the respondent failed to consider the circumstantial case which may be mounted by a prosecution of any of the matters complained of by the applicant –
whether the respondent’s decision should be set aside.

Judicial Review Act 1991 (Qld), ss 3, 4, 20, 416
Legal Profession Act 2007 (Qld)

Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, distinguished
Briginshaw v Briginshaw (1938) 60 CLR 336, cited
Griffith University v Tang (2005) 221 CLR 99, considered
Inglewood Olive Processors Ltd v Chief Executive Officer of Customs [2005] FCAFC 101, considered
Kawicki v The Legal Services Commissions & Anor [2005] NSWCA 333, considered
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408, considered
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, considered
Purcell v Vernardos [1996] 1 Qd R 310, considered
Re ARM Constructions Pty Ltd v Deputy Commissioner of Taxation [1986] FCA 97, considered
Rondel v Worsley [1969] 1 AC 191, considered
Tooheys Lt d v Minister for Business and Consumer Affairs (1981) 36 ALR 64 at 79, considered

COUNSEL:

J P Murphy appears in person
M Plunkett with RW Haddrick for the respondent

SOLICITORS:

Applicant appears in person
Crown Law for the respondent

On 10 November 2009, the applicant made a complaint to the respondent…

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.

Keep reading for free

Create a free CaseChat account to read Murphy v Legal Services Commissioner and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] QSC 70
Decision Date: 22 March 2013

CaseChat Overview and Summary

In the matter of Murphy v Legal Services Commissioner, the applicant sought judicial review of the respondent’s decision not to pursue a complaint regarding a solicitor and former solicitor. The decision was made under Chapter 4 Part 4.4 of the Legal Profession Act and the Judicial Review Act. The respondent contested the application by asserting that the applicant was not a "person aggrieved" as required by the Judicial Review Act. The crux of the applicant’s argument was that the respondent had misconstrued the standard of proof applicable in disciplinary proceedings, which in turn influenced their decision-making process. Additionally, the applicant contended that the respondent had erred in understanding the kind of evidence that a disciplinary tribunal may consider when assessing whether the standard of proof has been met. Furthermore, the applicant argued that the respondent did not take into account the circumstantial evidence that could be presented by a prosecutor regarding the matters complained of by the applicant.

The court was tasked with determining whether the respondent's decision to not proceed with the complaint was legally sound and whether the respondent had correctly identified the aggrieved party. It was also necessary to assess whether the respondent had applied the correct legal principles concerning the standard of proof and the type of evidence admissible in disciplinary proceedings. The court examined whether the respondent's failure to consider the circumstantial evidence influenced the decision-making process. The court found that the respondent had indeed erred in their understanding of the applicable legal standards and the nature of admissible evidence, and that these errors were material to the decision not to pursue the complaint further.

The court set aside the respondent’s decision and referred the applicant’s complaints to the respondent for reconsideration according to law. The court also ruled that the respondent should pay the applicant’s costs associated with the application. The respondent’s misapprehension of the legal principles, including the standard of proof and the type of evidence relevant to disciplinary proceedings, was deemed significant enough to warrant a reevaluation of the complaint. The court’s decision underscored the importance of correctly applying legal standards in administrative decisions affecting professional conduct.

Orders

Orders of the court

1. The respondent’s decision of 8 March 2011, confirmed by the respondent’s reasons of 2 August 2011, is set aside;

2. The applicant’s complaints made on 10 November 2009 are referred to the respondent for further consideration according to law;

3. The respondent shall pay the applicant’s costs of and incidental to this application.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Murphy v Legal Services Commissioner [2013] QSC 70
PARTIES:	JOHN PAUL MURPHY (applicant) v LEGAL SERVICES COMMISSIONER (respondent)
FILE NO:	BS7724 of 2011
DIVISION:	Trial Division
PROCEEDING:	Application for statutory orders of review
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	22 March 2013
DELIVERED AT:	Brisbane
HEARING DATE:	13 July 2012
JUDGE:	Daubney J
ORDERS:	1. The respondent’s decision of 8 March 2011, confirmed by the respondent’s reasons of 2 August 2011, is set aside; 2. The applicant’s complaints made on 10 November 2009 are referred to the respondent for further consideration according to law; 3. The respondent shall pay the applicant’s costs of and incidental to this application.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the applicant made a complaint to the respondent pursuant to Chapter 4 Part 4.4 of the Legal Profession Act concerning a solicitor and former solicitor – where the applicant is applying for statutory orders of review of the respondent’s decision not to take further action with respect to the complaint, pursuant to the Judicial Review Act (“JRA”) – where the respondent alleged that the applicant was not a “person aggrieved” for the purposes of the JRA – where the respondent erred in respect of the standard of proof which applies in disciplinary proceedings – where this misunderstanding informed the respondent’s decision-making process – where the respondent erred in respect of the nature of evidence which may be considered by a disciplinary tribunal when determining whether the standard of proof has been satisfied – where the respondent failed to consider the circumstantial case which may be mounted by a prosecution of any of the matters complained of by the applicant – whether the respondent’s decision should be set aside. Judicial Review Act 1991 (Qld), ss 3, 4, 20, 416 Legal Profession Act 2007 (Qld) Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, distinguished Briginshaw v Briginshaw (1938) 60 CLR 336, cited Griffith University v Tang (2005) 221 CLR 99, considered Inglewood Olive Processors Ltd v Chief Executive Officer of Customs [2005] FCAFC 101, considered Kawicki v The Legal Services Commissions & Anor [2005] NSWCA 333, considered Law Society of New South Wales v Foreman (1994) 34 NSWLR 408, considered Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, considered Purcell v Vernardos [1996] 1 Qd R 310, considered Re ARM Constructions Pty Ltd v Deputy Commissioner of Taxation [1986] FCA 97, considered Rondel v Worsley [1969] 1 AC 191, considered Tooheys Lt d v Minister for Business and Consumer Affairs (1981) 36 ALR 64 at 79, considered
COUNSEL:	J P Murphy appears in person M Plunkett with RW Haddrick for the respondent
SOLICITORS:	Applicant appears in person Crown Law for the respondent