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Murray v Legal Services Commissioner

Murray v Legal Services Commissioner

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Case Copied 30 March 1999 65 min read

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Reported Decision: 46 NSWLR 224

New South Wales

Court of Appeal

CITATION: MURRAY v LEGAL SERVICES COMMISSIONER & ANOR [1999] NSWCA 70

FILE NUMBER(S): CA 40377/98

HEARING DATE(S): 21 October 1998; 22 October 1998; 27 November 1998; 15 December 1998; 3 March 1999

JUDGMENT DATE:
30 March 1999

PARTIES :

Craig William Murray - Claimant
Legal Services Commissioner - 1st Opponent
Legal Services Tribunal - 2nd Opponent

JUDGMENT OF: Priestley JA at 1; Sheller JA at 6; Stein JA at 105

COUNSEL: P LeG Brereton SC - Claimant
W R Haylen QC/M C Marien - Opponents

SOLICITORS: Atanaskovic Hartnell - Claimant
I V Knight - Crown Solicitor - Opponents

CATCHWORDS: ADMINISTRATIVE LAW; PROCEDURAL FAIRNESS; LEGAL SERVICES COMMISSIONER'S DECISION VOID; REQUIREMENT TO SUPPLY COPY OF COMPLAINT; CERTIORARI; PROHIBITION

ACTS CITED: LEGAL PROFESSION ACT 1987

CASES CITED:
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Annetts v McCann (1990) 170 CLR 596
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Baba v Parole Board of NSW (1986) 5 NSWLR 338
Bonaker v Evans (1850) 16 QB 162
Commissioner of Police v Reid (1989) 16 NSWLR 453
Commissioner of Police v Tanos (1958) 98 CLR 383
Cornall v AB (a solicitor) [1995] 1 VR 337
Dennis v The Law Society of NSW (unreported) Court of Appeal, 17 December 1979
Dorman v Riordan (1990) 24 FCR 564
Johns v Australian Securities Commission (1993) 178 CLR 408
Kioa v West (1985) 159 CLR 550
Medical Board of Queensland v Byrne (1958) 100 CLR 582
R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256
Re NSW Bar Association; Ex parte Evatt (1967) 67 SR (NSW) 236
Rees v Crane [1994] 2 AC 173
Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397
South Australia v O’Shea (1987) 163 CLR 378
Stead v State Government Insurance Commission (1986) 161 CLR 141
Testro Bros Pty Limited v Tait (1963) 109 CLR 353
Twist v Randwick Municipal Council (1976) 133 CLR 106
Wentworth v Rogers (1984) 2 NSWLR 422
White v Ryde Municipal Council (1977) 2 NSWLR 909
Wiseman v Bornemand [1971] AC 297

DECISION: Declaration that decision void.; Certiorari; Prohibition

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40377/98
LST 14/98

PRIESTLEY JA
SHELLER JA
STEIN JA

MURRAY v LEGAL SERVICES COMMISSIONER & ANOR

The Legal Services Commissioner had filed an Information with the Legal Services Tribunal informing it that, as a result of the Commissioner’s investigation of a complaint under Pt 10 of the Legal Profession Act 1987 (the Act) against the applicant, the Commissioner claimed that the applicant, while practising as a solicitor, was guilty of either professional misconduct or unsatisfactory professional conduct.
The applicant claimed a declaration that the Commissioner’s decision under s155(2) of the Act to institute proceedings against him was void. He also claimed consequential relief in the nature of certiorari against the Commissioner and prohibition against the Tribunal. The applicant claimed that the Commissioner, by failing to provide the him with a copy…

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: [1999] NSWCA 70
Decision Date: 30 March 1999

CaseChat Overview and Summary

The Supreme Court of New South Wales, Court of Appeal, considered an application for judicial review brought by the applicant, Mr. Murray, against a decision of the Legal Services Commissioner. The dispute concerned the Commissioner's handling of a complaint made against Mr. Murray, specifically the failure to provide him with a copy of the complaint itself. Mr. Murray sought to have the Commissioner's decision declared void.

The central legal issue before the Court of Appeal was whether the Legal Services Commissioner was obliged to supply a copy of a complaint to the subject of the complaint as a matter of procedural fairness. The Court was required to determine if the failure to do so rendered the Commissioner's subsequent decision invalid.

The Court reasoned that procedural fairness, in the context of a complaint against a legal practitioner, necessitates that the practitioner be informed of the case they are required to answer. This includes providing them with a copy of the complaint, allowing them an adequate opportunity to respond to the specific allegations made. The Court held that the Commissioner's failure to provide Mr. Murray with a copy of the complaint breached this fundamental requirement of procedural fairness. Consequently, the Commissioner's decision was vitiated by this procedural error.

The Court of Appeal made declarations that the decision of the Legal Services Commissioner was void and granted orders for certiorari and prohibition.

Orders

Orders of the court

Declaration that decision void.; Certiorari; Prohibition

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:	MURRAY v LEGAL SERVICES COMMISSIONER & ANOR [1999] NSWCA 70
FILE NUMBER(S):	CA 40377/98
HEARING DATE(S):	21 October 1998; 22 October 1998; 27 November 1998; 15 December 1998; 3 March 1999
JUDGMENT DATE:	30 March 1999
PARTIES :	Craig William Murray - Claimant Legal Services Commissioner - 1st Opponent Legal Services Tribunal - 2nd Opponent
JUDGMENT OF:	Priestley JA at 1; Sheller JA at 6; Stein JA at 105

COUNSEL:	P LeG Brereton SC - Claimant W R Haylen QC/M C Marien - Opponents
SOLICITORS:	Atanaskovic Hartnell - Claimant I V Knight - Crown Solicitor - Opponents
CATCHWORDS:	ADMINISTRATIVE LAW; PROCEDURAL FAIRNESS; LEGAL SERVICES COMMISSIONER'S DECISION VOID; REQUIREMENT TO SUPPLY COPY OF COMPLAINT; CERTIORARI; PROHIBITION
ACTS CITED:	LEGAL PROFESSION ACT 1987
CASES CITED:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Annetts v McCann (1990) 170 CLR 596 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Baba v Parole Board of NSW (1986) 5 NSWLR 338 Bonaker v Evans (1850) 16 QB 162 Commissioner of Police v Reid (1989) 16 NSWLR 453 Commissioner of Police v Tanos (1958) 98 CLR 383 Cornall v AB (a solicitor) [1995] 1 VR 337 Dennis v The Law Society of NSW (unreported) Court of Appeal, 17 December 1979 Dorman v Riordan (1990) 24 FCR 564 Johns v Australian Securities Commission (1993) 178 CLR 408 Kioa v West (1985) 159 CLR 550 Medical Board of Queensland v Byrne (1958) 100 CLR 582 R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256 Re NSW Bar Association; Ex parte Evatt (1967) 67 SR (NSW) 236 Rees v Crane [1994] 2 AC 173 Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 South Australia v O’Shea (1987) 163 CLR 378 Stead v State Government Insurance Commission (1986) 161 CLR 141 Testro Bros Pty Limited v Tait (1963) 109 CLR 353 Twist v Randwick Municipal Council (1976) 133 CLR 106 Wentworth v Rogers (1984) 2 NSWLR 422 White v Ryde Municipal Council (1977) 2 NSWLR 909 Wiseman v Bornemand [1971] AC 297
DECISION:	Declaration that decision void.; Certiorari; Prohibition