Murray v Legal Services Commissioner

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Case Copied 65 min read
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…

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Details
Case
[1999] NSWCA 70
Decision Date

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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