Russo v Legal Services Commissioner

The appeal in *Russo v Legal Services Commissioner* was heard by Ward, Leeming and Payne JJA in the Court of Appeal of New South Wales. The dispute concerned an appeal by a legal practitioner against an order made by the New South Wales Civil and Administrative Tribunal (NCAT) that removed his name from the roll of legal practitioners. This order followed findings of professional misconduct and unsatisfactory professional conduct, specifically relating to the appellant's failure to pay counsel's fees and to account for payments made by a client for those fees.

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.