Potkonyak v Legal Services Commissioner

[2017] NSWSC 1458

Supreme Court

New South Wales

Medium Neutral Citation:

Potkonyak v Legal Services Commissioner [2017] NSWSC 1458

Hearing dates:

24 October 2017

Date of orders:

24 October 2017

Decision date:

24 October 2017

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Under s 51(1)(b) Supreme Court Act 1970, remove these proceedings into the Court of Appeal;

(2)   List the matter for directions before the Registrar of the Court of Appeal at 9am on Wednesday, 1 November 2017;

(3)   The costs of the application before me are costs in the proceedings.

Catchwords:

CIVIL PROCEDURE – Jurisdiction – Transfers to and from other courts – Judicial review of NCAT decision – Case removed to Court of Appeal

Legislation Cited:

Legal Profession Act 2004 (NSW)
Supreme Court Act 1970 (NSW)

Cases Cited:

Sullivan v Council of the Law Society of New South Wales [2017] NSWSC 427

Category:

Procedural and other rulings

Parties:

Mr George Potknoyak (Plaintiff)
Legal Services Commissioner (Defendant)

Representation:

Counsel: I D C A Webster SC (Defendant)

  Solicitors: Plaintiff in person
Office of the Legal Services Commissioner (Defendant)

File Number(s):

2017/209407

Publication restriction:

Nil

ex tempore Judgment (revised)

1. This matter has been referred to me by the Registrar. The plaintiff, Mr Potkonyak, is a legal practitioner in respect of whom some orders have been made by the New South Wales Civil and Administrative Tribunal in its Occupational Division. Mr Potkonyak wishes to challenge those orders on jurisdictional grounds and has filed a summons seeking judicial review. He filed his summons for hearing in the general list of the Common Law Division. The first defendant and the active contradictor, the Legal Services Commissioner, objects to the matter proceeding in the Common Law Division and argues that the matter should be transferred to the Court of Appeal under the provisions of s 51(1)(b) Supreme Court Act 1970 (NSW).

2. Mr Potkonyak opposes that course. He has submitted that the Supreme Court has in its original jurisdiction supervisory powers over NCAT, as it is called, and that the case he wishes to propound is straightforward, not involving any difficult questions of law and it is appropriate that it be dealt with by a single judge in the Common Law Division, rather than going to the Court of Appeal.

3. The Legal Services Commissioner submits that these matters are assigned to the Court of Appeal and should be heard by it. Ms Webster SC who appears for the Commissioner reminds me of my decision in Sullivan v Council of the Law Society of New South Wales [2017] NSWSC 427 where I held that an appeal brought from the Occupational Division of NCAT should be removed to the Court of Appeal. Although that case was concerned with an appeal rather than an application for judicial review in the exercise of original jurisdiction, I am of the view that this matter too is caught by s 48 Supreme Court Act 1970, if I can put it that way.

4. A “specified tribunal” is defined in s 48 to include the Civil and Administrative Tribunal when exercising functions or purporting to exercise functions for the purpose of the Legal Profession Act 2004 (NSW). This is such a case. Subs (2) states in clear terms:

(2) There are assigned to the Court of Appeal proceedings in the [Supreme] Court:

…(b) for commanding or otherwise requiring a specified tribunal to perform a public duty,

(c) for prohibiting or otherwise restraining a specified tribunal from proceeding in any matter before the tribunal …

5. The relief sought by Mr Potkonyak squarely falls within that description. Under s 51 Supreme Court Act, where proceedings are commenced in a Division, but are assigned to the Court of Appeal, first, they are taken to be well commenced and not invalid, but secondly, the Court in the Division may, on the application by a party or of its own motion, order the proceedings be removed into the Court of Appeal.

6. Given that statutory context, it seems to me that the "may" in s 51 is not indicative necessarily of a purely discretionary decision. Indeed, I think it can be said that the natural forum for appeals and judicial review of decisions concerning the status of legal practitioners is the Court of Appeal, leaving aside of course some specific and express statutory provisions to the contrary.

7. Given that all appeals from, and applications for review of decisions of, NCAT exercising or purporting to exercise its functions under the Legal Profession Act are assigned to the Court of Appeal, I am of the view that it is appropriate for me to exercise my powers under s 51 to transfer this summons to the Court of Appeal.

8. Mr Potkonyak wishes to apply for a stay of proceedings in the Tribunal. The second stage hearing had been fixed for 22 August 2017, but was adjourned on Mr Potkonyak's application. It is now fixed for 13 November 2017 and he is desirous of postponing that hearing until his summons is dealt with in this Court. I expressed the view that: (a) I felt it inappropriate that I should deal with a stay application in the absence of a motion supported by affidavit seeking that relief; and (b) in any event, as I was of the view that the matters should be removed to the Court of Appeal, it was more appropriate that the matter be dealt with by a judge of the Court of Appeal.

9. In any event, Ms Webster has pointed out that given that these proceedings have now been commenced, the Commissioner would neither object nor consent to an adjournment of the second stage hearing on 13 November until the determination of the summons. The powers to grant a stay arise in original not appellate jurisdiction, but given that proper attitude, may I say with respect, of the Commissioner, and given Mr Potkonyak's time constraints, he may think it appropriate to make a further application for an adjournment to the Tribunal in the first instance. In any event, that is a matter for his consideration. If, however, he is to persist in this Court with an application for a stay, it seems to me appropriate for him to file a motion supported by affidavit for determination by a judge of appeal. In my experience the Court of Appeal deals with such applications with all due promptitude.

10. For these reasons I make the following orders:

1. Under s 51(1)(b) Supreme Court Act 1970, remove these proceedings into the Court of Appeal;

2. List the matter for directions before the Registrar of the Court of Appeal at 9am on Wednesday, 1 November 2017;

3. The costs of the application before me are costs in the proceedings.

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Decision last updated: 25 October 2017