Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Russo v Legal Services Commissioner [2016] NSWCA 306 Hearing dates: 25 August 2016 Decision date: 08 November 2016 Before: Ward JA; Leeming JA; Payne JA Decision: 1. Appeal allowed.
2. The order made by the New South Wales Civil and Administrative Tribunal on 12 April 2016 for the removal of the appellant’s name from the Supreme Court Roll of legal practitioners be set aside.
3. In lieu thereof, order that:
(a) the appellant be reprimanded in respect of his professional misconduct and unsatisfactory professional conduct as found by the Tribunal;
(b) a fine of $20,000 be imposed.
4. The appellant pay the Commissioner’s costs of the appeal.Catchwords: LEGAL PRACTITIONERS – professional misconduct and unsatisfactory professional conduct – appeal from order removing appellant’s name from roll of legal practitioners for failure to pay counsel’s fees or account for payments made by client for counsel’s fees – whether appellant denied procedural fairness in circumstances where Commissioner did not press for order for removal of appellant’s name from roll at hearing and Tribunal did not indicate intention to assess his fitness to continue in practice – appeal allowed – order substituted for reprimand and fine Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 38(5)
Legal Profession Act 2004 (NSW), ss 255, 299(1)(f), 302(1)(l), 497(1)(a), 562(7), 660
Legal Profession Uniform Law (NSW), ss 299(1)(f), 302(1)(l)
Property (Relationships) Act 1984 (NSW)Cases Cited: Bar Association of New South Wales v Miller (No 2) [2011] NSWADT 148
Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Council of the Law Society of New South Wales v Hancock (No 2) [2009] NSWADT 327
Council of the Law Society of New South Wales v McHugh [2015] NSWCATOD 37
Council of the Law Society of New South Wales v Ross [2013] NSWADT 106
Council of the Law Society of New South Wales v Vaughan [2015] NSWCATOD 156
Goldie v Minister for Immigration & Multicultural Affairs [1999] FCA 1277; (1999) 52 ALD 321
Law Society of New South Wales v Hannam [2006] NSWADT 24
Law Society of New South Wales v Shad [2002] NSWADT 236
Legal Services Commissioner v Bryden and Hagipantelis (No 3) [2012] NSWADT 225
Legal Services Commissioner v McCarthy [2010] NSWADT 269
Legal Services Commissioner v Russo [2016] NSWCATOD 42
Legal Services Commissioner v Tsalidis [2013] NSWADT 101
Re Robb (1996) 134 FLR 294
Xu v Council of the Law Society of New South Wales [2009] NSWCA 430Category: Principal judgment Parties: Salvatore Russo (Appellant)
Legal Services Commissioner (Respondent)Representation: Counsel:
Solicitors:
T Lynch SC with A Vernier (Appellant)
Ms C Webster SC (Respondent)
T A Williams Solicitor & Barrister (Appellant)
Office of the Legal Services Commissioner (Respondent)
File Number(s): 2016/00113571 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- NSW Civil and Administrative Tribunal
- Jurisdiction:
- Occupational Division
- Citation:
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- Case
- [2016] NSWCA 306
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether the appellant had been denied procedural fairness. This question arose in circumstances where the Legal Services Commissioner, the respondent, had not pressed for the order of removal from the roll at the hearing before NCAT, and the Tribunal itself had not indicated an intention to consider the appellant's fitness to continue in practice. The Court was therefore required to determine if the appellant had a reasonable opportunity to present his case concerning the appropriate disciplinary outcome, particularly in light of the severity of the order ultimately made.
The Court of Appeal allowed the appeal, reasoning that the appellant had been denied procedural fairness. The Court found that the appellant was entitled to expect that the Commissioner would not seek the most severe penalty unless it was justified, and that NCAT should have alerted him to the possibility of such an order being made, thereby affording him an opportunity to address the issue of his fitness to practice. Consequently, the Court set aside NCAT's order for removal from the roll and substituted it with an order reprimanding the appellant for his misconduct and imposing a fine of $20,000. The appellant was also ordered to pay the Commissioner's costs of the appeal.
Orders
Orders of the court
1. Appeal allowed.
2. The order made by the New South Wales Civil and Administrative Tribunal on 12 April 2016 for the removal of the appellant’s name from the Supreme Court Roll of legal practitioners be set aside.
3. In lieu thereof, order that:
(a) the appellant be reprimanded in respect of his professional misconduct and unsatisfactory professional conduct as found by the Tribunal;
(b) a fine of $20,000 be imposed.
4. The appellant pay the Commissioner’s costs of the appeal.
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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