Starke v Legal Profession Conduct Commissioner

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Judicial Review)
STARKE v LEGAL PROFESSION CONDUCT COMMISSIONER
[2025] SASC 140
Judgment of the Honourable Justice Stein
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - GENERALLY
The applicant, David Ashley Starke, applied by originating application for judicial review of an alleged decision by the Legal Profession Conduct Commissioner (“Commissioner”) to “abandon the [Legal Practitioners Act 1981 (SA)] section 77J administrative process and to lay a Charge before the Legal Practitioners’ Disciplinary Tribunal”.
The respondent Commissioner applied for summary dismissal of the application under r 256.5 of the Uniform Civil Rules 2020 (SA).
Held (granting the interlocutory application for summary dismissal and dismissing the originating application for judicial review):
1. There is no reasonable basis for judicial review.
Legal Practitioners Act 1981 (SA) ss 77B, 77D, 77J, 77L, 77M; Fair Work Act 2009 (Cth) s 557; Uniform Civil Rules 2020 (SA) rr 143.2, 144.2, 256.5, referred to.
Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; Finlayson v Legal Practitioners Conduct Board (2012) 112 SASR 549; Attorney-General v Kowalski [2014] SASC 1; James Cook University v Ridd (2020) 278 FCR 566; Vansetten v State of South Australia [2020] SASC 158; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117; Legal Profession Conduct Commissioner v Belperio [2024] SASCA 102, considered.

STARKE v LEGAL PROFESSION CONDUCT COMMISSIONER
[2025] SASC 140
Civil: Judicial Review

STEIN J: In June 2024, the Legal Profession Conduct Commissioner (the “Commissioner”),[1] the respondent, laid a charge against Mr Starke, the applicant, in the Legal Practitioners Disciplinary Tribunal (the “Tribunal”) alleging that Mr Starke engaged in professional misconduct on the basis of alleged failure to comply with conditions placed on Mr Starke’s practising certificate on 21 November 2016. Mr Starke commenced judicial review proceedings which challenge “the decision to abandon the [Legal Practitioners Act 1981 (SA)] [s] 77J administrative process and to lay a Charge before the Legal Practitioners’ Disciplinary Tribunal”. The Commissioner applied for summary dismissal of the judicial review application.
[1] At the time the investigations involving Mr Starke commenced, Mr Greg May was the Commissioner. Mr Anthony Keane was thereafter appointed Commissioner.
For the reasons which follow, I have determined to grant the Commissioner’s application and summarily dismiss Mr Starke’s application for judicial review.
Background
Since 2016, Mr Starke’s practising certificate has been subject to conditions that:
·he has funds in his trust account to the credit of the client before the brief is delivered to counsel, which funds are in counsel’s estimate sufficient to cover counsel fees to be incurred; or
·he advises the barrister he proposes to brief of the condition on his practising certificate at the time of his first approach to discuss briefing her or him in a matter, and the barrister agrees with him in writing to wait until a particular date or event, to be identified in writing in the agreement, for payment of his or her counsel fees.
On 17 May 2021, the Commissioner[2] wrote to Mr Starke to inform Mr Starke the Commissioner had received a complaint about his conduct. The complaint was received by the Commissioner from counsel retained by Mr Starke (“complainant”). The complainant said she was briefed by Mr Starke on 20 May 2020 to appear at a hearing in the Federal Circuit Court and her account remained unpaid despite requests. The Commissioner informed Mr Starke that the Commissioner was obliged to investigate the complaint and the Commissioner had commenced an investigation. Mr Starke was informed of his right to make submissions and provided with a copy of the complaint. The Commissioner stated that the complainant appeared to allege Mr Starke had failed to pay her account for counsel fees and asked Mr Starke to address in his response whether he had told the complainant he had money in trust from the client to pay her fees or if he had alerted her to the conditions on his practising certificate concerning briefing counsel.
[2] A number of different staff members of the Commissioner were responsible for correspondence sent on behalf of the Commissioner.
On 17 May 2021, the complainant sent to the Commissioner a letter responding to a letter from him of the same date. The complainant said she could not recall whether Mr Starke told her he had money in trust and there was never any discussion about the conditions on Mr Starke’s practising certificate.
On 18 May 2021, in response to a further email from the Commissioner, the complainant said there was no discussion about any deferred payment, she could not recall whether there was a specific discussion about funds in trust, and there was no discussion about any conditions on Mr Starke’s practising certificate.
On 13 July 2021, Mr Starke responded by letter to the Commissioner (the “13 July letter”). In that letter, Mr Starke explained that he had retained counsel but when that counsel became unavailable, Mr Starke searched for alternative counsel. The client was a client who had always paid her bills. Mr Starke had no reason to doubt the client would pay counsel fees and she did in fact pay the fees. Mr Starke said that, in the particular circumstances, he did not have time to correspond by letter so he spoke to his client about the likely fees and asked her to put money in trust, the client agreed to brief the complainant and said she would pay the anticipated fees into trust. Mr Starke stated that, as a result of COVID-19 lockdown requirements, everything was done by telephone and there was no time for letters. Mr Starke said that after receiving the complainant’s bill, it was sent to the client via email. The fees were paid into Mr Starke’s office account, not the trust account. Mr Starke could not explain why he missed the fact of payment into the wrong account. Mr Starke then moved office in circumstances set out in the letter. Mr Starke said he was not aware of account reminders until late in the matter and payment was overlooked. In Mr Starke’s response, he accepted there was non-compliance with the “strict wording” of the conditions on his practising certificate but maintained there were significant mitigating factors which he set out in his letter.
On 23 August 2021, the Commissioner wrote to Mr Starke to inform Mr Starke the Commissioner had decided to make an investigation on his own initiative under s 77B(1) of the Legal Practitioners Act 1981 (SA) (“Act”). The s 77B(1) investigation was said to have arisen out of two existing investigations including the complaint by the complainant. Details of the conduct being investigated were that:
·Mr Starke did not comply with the conditions on his practising certificate when he briefed the complainant in May 2020;
·Mr Starke did not comply with the conditions on his practising certificate when he briefed another counsel because he decided it was not necessary to do so;
·Mr Starke may not have complied with the conditions on his practising certificate when he briefed another counsel in the matter that gave rise to the complainant being retained as counsel which then gave rise to the complainant’s complaint.
On 17 September 2021, Mr Starke responded by two letters. In the letters, among other things, Mr Starke complained that the Commissioner did not give proper details of the conduct the Commissioner may intend to investigate. Mr Starke sought various documents and particulars, including a copy of documentation or evidence relied on by the Commissioner for making the decision to conduct an own motion investigation.
On 11 November 2021, the Commissioner wrote to Mr Starke referring to his letters of 17 September 2021. The Commissioner informed Mr Starke that the Commissioner had received a complaint which he had to investigate which was confined to the issue of non‑payment of the complainant’s counsel fees. Separately, the Commissioner commenced an own initiative investigation on 19 August 2021 as to whether Mr Starke breached the condition on his practising certificate when he briefed three counsel (including the complainant). The Commissioner stated that Mr Starke had admitted he did not have funds in trust when he sent the brief to the complainant, and the complainant had confirmed that Mr Starke did not discuss the conditions on the practising certificate prior to briefing the complainant or obtain her written agreement about payment of the fees.
On 31 January 2022, Mr Starke wrote to the Commissioner submitting, among other things, that separating out the non-payment of the complainant and the breach of the practising certificate conditions was duplicitous and the matters were part of one course of conduct which should not have been separated.
On 13 May 2022, the then solicitor for Mr Starke wrote to the Commissioner. The letter expressed a number of concerns including as to the “legality of the investigations”.
On 6 June 2022, the Commissioner wrote to Mr Starke’s solicitor stating, among other things, that having reviewed the circumstances, he had formed the view the own initiative investigations were properly commenced. The Commissioner acknowledged Mr Starke’s view that the matters should be addressed as one course of conduct but maintained he did not agree for reasons previously stated in correspondence. The Commissioner proposed to finalise the matter of the failure to pay counsel fees by making a formal determination of unsatisfactory professional conduct, by reprimanding Mr Starke and ordering he apologise but by not including the finding on the Register of Disciplinary Action (the “Register”). On 6 June 2022, the Commissioner also sent to Mr Starke an email attaching a number of decisions of the Tribunal.
On 26 August 2022, the Commissioner wrote to Mr Starke enclosing a copy of his determination under s 77J of the Act in relation to the complaint of the complainant. Having taken Mr Starke’s further submissions and those of his solicitor into account, the Commissioner had made a determination in which he concluded that there was evidence of unsatisfactory professional conduct by Mr Starke. The Commissioner was satisfied that there had been compliance with the requirements of s 77D and s 77J(4). He was also satisfied that Mr Starke’s conduct could adequately be dealt with under s 77J and considered it appropriate to reprimand Mr Starke and order Mr Starke to apologise. The Commissioner exercised his discretion not to enter information about the disciplinary action onto the Register.
On 13 September 2022, Mr Starke wrote to the Commissioner in relation to the 26 August 2022 determination reiterating previous statements that Mr Starke would not agree to treat the conduct as two separate instances of conduct. While acknowledging that the Commissioner could make two determinations addressing the two instances of conduct (delay in payment and the alleged breach of conditions on the practising certificate), Mr Starke contended it was one course of conduct warranting one finding of misconduct and one penalty. The letter included submissions as to why the conditions on Mr Starke’s practising certificate were practically unworkable in some situations.
On 3 April 2024, the Commissioner wrote to the solicitor for Mr Starke in relation to the Commissioner’s own motion investigation to inform Mr Starke that the Commissioner had formed a preliminary view about his conduct and to give Mr Starke an opportunity to make further submissions. The Commissioner’s preliminary view set out in the letter was that if he found, as facts, that Mr Starke retained the complainant to act as counsel, did not inform the complainant of the restriction on his practising certificate, nor arrange for funds to be placed in his trust account, that would be capable of supporting a finding of professional misconduct.
On 5 May 2024, Mr Starke’s solicitor responded by letter (the “5 May letter”) providing submissions in response to the Commissioner’s preliminary view. The solicitor, among other things, referred to evidence the Commissioner had relied upon and contended that the evidence relied upon by the Commissioner to commence the own initiative investigation was improperly obtained. The solicitor made submissions about the findings of fact upon which the Commissioner relied in coming to his preliminary view. The solicitor stated that it was insufficient to simply find that Mr Starke briefed counsel, as that failed to take into account what was described as extraordinary circumstances in which Mr Starke was operating. The solicitor asked the Commissioner to take into account and make findings about the timeframe under which Mr Starke was compelled to operate and the position in which he was placed, which was not of his own doing. The conditions imposed on Mr Starke’s practising certificate were described as unworkable and impractical. Based on the matters raised, the solicitor contended the better, and more appropriate, characterisation of the conduct was unsatisfactory professional conduct. The solicitor also stated that it was unfair and prejudicial to have two findings relating to conduct and penalty in relation to what was the same course of conduct. The Commissioner was urged to reconsider his preliminary views and invited to re-characterise the conduct as unsatisfactory professional conduct.
On 15 May 2024, the Commissioner wrote to Mr Starke’s solicitor informing Mr Starke that he had taken into account the submissions made on behalf of Mr Starke. The Commissioner maintained that Mr Starke had engaged in professional misconduct. The Commissioner advised Mr Starke that the Commissioner could either act pursuant to s 77J(2) or s 77L of the Act. At that stage, the Commissioner was of the view that the conduct could be dealt with adequately under s 77J(2) and he proposed reprimanding Mr Starke and imposing a fine. Mr Starke was informed that the Commissioner could only take disciplinary action under s 77J(2) if Mr Starke consented, and one of the purposes of the letter was to see if Mr Starke would consent to the proposed disciplinary action. The Commissioner asked for confirmation in writing if Mr Starke was willing to consent to the proposed disciplinary action and, if not, why not. The Commissioner advised Mr Starke that if Mr Starke did not consent, it was most likely the Commissioner would consider the conduct could not adequately be dealt with under s 77J such that he then must lay a charge before the Tribunal.
On 30 May 2024, Mr Starke’s solicitor wrote to the Commissioner (the “30 May letter”) to raise a number of issues including the Commissioner’s definition of Mr Starke’s conduct as professional misconduct. The solicitor stated that the Commissioner had at no time provided any reasons for his finding of professional misconduct and the Commissioner’s correspondence did not set out reasons why the Commissioner did not accept Mr Starke’s submissions. The solicitor informed the Commissioner that Mr Starke was most concerned about the definition of his conduct as “professional misconduct” and the fact his name would be placed on the Register. The solicitor stated that none of the conclusions were supported[3] by reasons, yet the Commissioner sought an answer on consent, being aware that consent would deprive Mr Starke of his appeal rights. The solicitor further asserted that the decision could not be exercised and the practitioner’s conduct could not be considered unreasonable when they had requested, and the Commissioner had refused to give, details of his analysis or reasons for decision.
[3] The letter says “unsupported” but this must be a mistake.
Under a heading “Open Offer”, the solicitor stated that Mr Starke did not have any issue with the proposed disciplinary action, on the proviso there was a finding of unsatisfactory professional misconduct. Mr Starke would consent to a finding of unsatisfactory professional conduct, together with the proposed disciplinary action, excluding entry on the Register. This was described as amounting to a significant concession. The solicitor referred to another matter of which the solicitor was anecdotally aware in which a lesser penalty was imposed. The offer was said to be put forward in circumstances of Mr Starke not being provided with reasons and that, if the matter proceeded, a claim for costs would be made. The solicitor referred to the intention to seek discovery as to parity of how other conduct matters were addressed and reiterated serious concerns with how the own motion investigation commenced and the failure to address practical issues with the conditions on Mr Starke’s practising certificate. The offer was said to be put as a reluctant open offer. The solicitor stressed that the conduct did not amount to professional misconduct and asked for amendment, or removal, of the conditions on Mr Starke’s practising certificate.
On 11 June 2024, Mr Starke’s solicitors were advised by letter that, given Mr Starke did not consent to the proposed disciplinary action, the Commissioner had decided to lay a charge against Mr Starke.
On 12 June 2024, Mr Starke’s solicitors responded, among other things, to say that Mr Starke neither rejected, nor consented, to the offer contained in the Commissioner’s letters of 3 April and 15 May 2024. Complaint was made about the failure to provide reasons and reiterated the request for reasons.
On 18 June 2024, by letter, the Commissioner responded to the assertion of a denial of procedural fairness. The Commissioner rejected the allegation that Mr Starke had been denied procedural fairness by not being provided with reasons for a decision which was still to be made. The Commissioner stated that the prior correspondence indicated the Commissioner considered the breach of condition to be sufficiently serious to warrant a finding of professional misconduct and Mr Starke was given an opportunity to address the seriousness of the conduct. The Commissioner’s letter stated that if Mr Starke did not consent to action under s 77J then the question of reasons was moot by reason of s 77M. The Commissioner nonetheless indicated he was willing to provide one further opportunity to Mr Starke to make submissions and, to assist Mr Starke, invited his solicitor to consider a number of specific authorities said to establish that a breach of a condition of a practising certificate is serious and properly characterised as professional misconduct. The Commissioner indicated that the charges had been issued but he would refrain from serving them so that Mr Starke could make further submissions.
The summary set out above is not an exhaustive recitation of all the correspondence between the parties.
Basis for application for judicial review
Mr Starke commenced judicial review proceedings against the Commissioner for a review of the decision of the Commissioner which was identified in the following terms:
In which the Legal Profession Conduct Commissioner determined to lay a charge in the Legal Practitioners Disciplinary Tribunal pursuant to s 82 of the Legal Practitioners Act 1975 (SA) … alleging [Mr Starke] had engaged in conduct which constituted professional misconduct. At the time the Commissioner laid the Charge he had previously elected to pursue the matter on an administrative basis pursuant to s 77J … That process was incomplete as [Mr Starke] had not determined whether he would or would not consent to disciplinary action proposed by the Commissioner.

Mr Starke challenged the decision to “abandon the s 77J administrative process” and to lay a charge. Mr Starke sought orders that, in his investigation of the application and his determination, the Commissioner acted beyond jurisdiction, acted in contravention of the requirements of procedural fairness and asked that the decision of the Commissioner be set aside on the basis of jurisdictional error or error of law or failure to observe the requirements of procedural fairness. In the alternative, Mr Starke sought an order that a delegate of the Commissioner be ordered to review the decision made and, as part of that review, reconsider the investigation process, the evidence available and the reasonable determinations open.
Summary dismissal application
The Commissioner sought summary dismissal of the judicial review application pursuant to rr 144.2 and 256.5(3) of the Uniform Civil Rules 2020 (SA) (“UCR”) on the ground that there is no reasonable basis for the action for judicial review. Alternatively, the Commissioner sought summary dismissal pursuant to r 143.2 of the UCR based on abuse of process.
Summary dismissal principles
Rule 256.5 applies if, within 14 days after service of the originating application documents, a respondent files an interlocutory application for summary judgment. Pursuant to r 256.5(3), the Court must dismiss an action for judicial review unless the Court is satisfied there is a reasonable basis for the judicial review. There is no practical difference between the tests under r 256.5(3)(a) and r 144.2.[4] The applicant bears the onus of demonstrating a reasonable basis for the judicial review proceedings.[5]
[4] Vansetten v State of South Australia [2020] SASC 158 at [68].
[5] Webb v Department for Correctional Services [2023] SASCA 110 at [48].
The exercise of a power to determine an action summarily requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success. The Court need not be satisfied an action is bound to fail or is hopeless. The Court should be cautious not to cause injustice by summarily determining an action simply because the Court considers the application is unlikely to succeed, particularly if there are disputed questions of fact or law.[6] If the Court is satisfied there is no reasonable basis to exercise a discretion to grant the relief sought, even if a ground of review were made out, the Court should dismiss the claim.[7] In assessing a summary dismissal application, the Court should not embark on a mini trial but rather should assess the claim in a summary manner, taking into account the incomplete nature of the evidence on which the decision must be based.[8]
[6]    Vansetten v State of South Australia [2020] SASC 158 at [68].
[7]    Vansetten v State of South Australia [2020] SASC 158 at [69].
[8]    Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] SASC 161; (2020) 137 SASR 117 at [60].
If a party seeks dismissal of an action on the ground that it is an abuse of process of the Court pursuant to r 143.2 of the UCR, the party must relevantly establish the proceedings are an abuse of process. It is an abuse of process to bring proceedings in a second forum, duplicating other proceedings in another forum, which are not justified and which cause oppression or injustice.[9]
[9] Attorney-General v Kowalski [2014] SASC 1 at [195]-[197].
The Act
Section 77B(2) of the Act requires the Commissioner to investigate the conduct of a legal practitioner where a written complaint complying with the provisions of s 77B(3a) has been received. The Commissioner may, on his own initiative, investigate the conduct of a legal practitioner who the Commissioner has reasonable cause to suspect has been guilty of unprofessional conduct or professional misconduct.[10]
[10] Legal Practitioners Act 1981 (SA), s 77B(1).
Section 77J(1) provides that if, after conducting an investigation into conduct by a legal practitioner, the Commissioner is satisfied there is evidence of unsatisfactory professional conduct and the conduct in question can be adequately dealt with under the subsection, the Commissioner may determine not to lay a charge before the Tribunal and instead exercise one or more of a number of enumerated powers. Some of those powers are exercisable with the consent of the practitioner, and some in the absence of consent.
Section 77J(2) provides that if, after conducting an investigation into conduct by a legal practitioner, the Commissioner is satisfied there is evidence of professional misconduct and the misconduct in question can be adequately dealt with under the subsection, the Commissioner may, if the legal practitioner consents to such a course of action, determine not to lay a charge before the Tribunal and instead exercise one or more of a number of enumerated powers.
If, after conducting an investigation, the Commissioner is satisfied there is evidence of professional misconduct and the conduct in question cannot be adequately dealt with under s 77J, the Commissioner is obliged to lay a charge before the Tribunal in relation to the conduct unless the Commissioner determines it would not be in the public interest to do so. When the conditions in s 77L are met, there is a mandatory obligation to lay a charge.[11]
[11] Legal Profession Conduct Commissioner v Belperio [2024] SASCA 102 at [103]-[108] (Stein AJA, Kourakis CJ agreeing at [1], Bleby JA agreeing at [2]).
In the case of professional misconduct, the Commissioner is only empowered to deal with conduct under s 77J(2) without laying charges in the Tribunal if the practitioner consents to the course of action.[12] The Commissioner is not obliged to provide written reasons for taking action pursuant to s 77J or laying a charge in the Tribunal.[13]
[12] Legal Profession Conduct Commissioner v Belperio [2024] SASCA 102 at [93] (Stein AJA, Kourakis CJ agreeing at [1], Bleby JA agreeing at [2]).
[13] Legal Profession Conduct Commissioner v Belperio [2024] SASCA 102 at [110] (Stein AJA, Kourakis CJ agreeing at [1], Bleby JA agreeing at [2]).
Submissions
The Commissioner seeks summary dismissal of the judicial review application for two reasons. The first is that no decision to the effect alleged in the judicial review application was made because the outcome Mr Starke seeks to challenge was a statutorily mandated consequence of the operation of s 77J(2) and s 77L of the Act. The second is that the proceeding is an abuse of process because Mr Starke raises the same issues in the judicial review proceedings and seeks, in practical terms, the same relief as that is sought in the Tribunal.
In relation to the latter question, Mr Starke has instructed his solicitor and counsel to seek leave at the next Tribunal hearing to amend his response in the Tribunal to remove any reference to matters raised in the judicial review to avoid duplication. Counsel proffered an undertaking to that effect. While taking the position that leave from the Tribunal was not required to amend the response, the Commissioner’s position was that the Court could take into account such an undertaking.
The decision challenged in the judicial review process is a decision “to abandon the [Act] [s] 77J administrative process and to lay a charge before the Legal Practitioners’ Disciplinary Tribunal”. The Commissioner contended that such a characterisation misunderstood the operation of the Act. In particular, the characterisation assumed a discretionary decision by the Commissioner to abandon the s 77J process and a subsequent decision to lay a charge in the Tribunal. The Commissioner’s position is that he had an obligation under s 77B(2) of the Act to open an investigation into Mr Starke’s conduct, having received a qualifying complaint from the complainant alleging she had been briefed and Mr Starke had failed to pay her fees. In light of the subject matter of the complaint, and the existence of the first and second conditions on Mr Starke’s practising certificate, the Commissioner characterised his enquiry as an orthodox exercise of the Commissioner’s investigatory function. After receiving the complaint, the Commissioner, of his own motion, extended the investigation into Mr Starke’s conduct, both in relation to the complaint and to Mr Starke’s dealings with other barristers.
The Commissioner contended that having been relevantly satisfied there was evidence of professional misconduct based on admissions in the 13 July letter and correspondence from the complainant dated 17 May 2021, the Commissioner was obliged to consider whether the misconduct could be adequately dealt with under s 77J(2).
On the Commissioner’s position, in the 13 July letter Mr Starke made admissions which were repeated in his response to the charge and which constituted admissions as to non-compliance with conditions on his practising certificate. The Commissioner characterised Mr Starke’s complaints about reliance on the admissions in the 13 July letter as relevant to whether or not the evidence may be admissible in the Tribunal proceedings but contended that the Commissioner was entitled to consider them in determining whether he was relevantly satisfied for the purposes of s 77J(2).
Having determined he was satisfied that Mr Starke’s conduct could adequately be dealt with by s 77J(2), the Commissioner sought Mr Starke’s consent to the disciplinary action he determined was appropriate. Mr Starke was informed of the Commissioner’s view that if Mr Starke did not consent, it was most likely the Commissioner would consider he must lay a charge in the Tribunal. The Commissioner characterised Mr Starke’s 30 May letter as making an offer in which Mr Starke sought to have his conduct characterised as unsatisfactory professional conduct, and for the disciplinary action not to be published on the Register. On the Commissioner’s position, Mr Starke did not consent. The Commissioner submitted that Mr Starke’s construction of the letter, that is, as neither consenting nor refusing to consent, was not an available construction on an objective reading of the letter. Further, Mr Starke had not since indicated he would seek to consent to the disciplinary action proposed.
The Commissioner submitted that once the Commissioner determined there was evidence of professional misconduct, s 77J(1) was not an available source of power. The consequence of Mr Starke’s failure to consent to his conduct being dealt with under s 77J(2) was that the Commissioner was obliged to lay a charge before the Tribunal by virtue of the provisions of s 77L of the Act. The only exception would be if it was not in the public interest to do so or if it was out of time.
In opposing the Commissioner’s interpretation of the letter, Mr Starke contended his correspondence was part of an ongoing discourse and it was necessary to examine the entire course of correspondence. Mr Starke’s position was that the “s 77J process” miscarried because he neither refused to consent nor consented to the s 77J proposal.
Mr Starke complained about the failure of the Commissioner to respond to significant issues Mr Starke raised for consideration. Mr Starke submitted that the paragraphs under the heading “Conduct Issues and Process” in the 30 May letter made it clear that Mr Starke was neither consenting, nor refusing to consent, to the proposed disciplinary action and the offer was not a refusal nor a counter-offer but constituted significant engagement on issues of penalty, parity and other issues that invited a response. Mr Starke contended that the likely steps he may take, as set out in the letter, were not set out in a refusal to consent, but as part of a discourse addressing consent.
Mr Starke pointed to the fact that the complaint concerned the non-payment of a barrister’s account and submitted that it was unfair and improper for the Commissioner to have put questions to Mr Starke which he was obliged to answer concerning the conditions on his practising certificate. Mr Starke contended that this fell outside the complaint and there was no statutory basis for asking the questions. Mr Starke submitted that he had not received a fair hearing nor appropriate consideration of the actual circumstances in which the non-payment occurred. Mr Starke asserted an appearance of lack of objectivity in dealing with him in circumstances where one complaint about non-payment was said to have been turned into a “hotch potch” of allegations about other matters in relation to which there had been no complaint. Mr Starke contended the circumstances in which the complainant was briefed were unique, caused by a lack of time and difficulties dealing with COVID-19 restrictions. Mr Starke submitted it was impossible for him to comply with the conditions on his practising certificate and properly represent his client and comply with his duty to the Court and complained that there had been no acknowledgement of the unique circumstances.
Mr Starke also complained that the Commissioner treated the non-payment of the account and the breach of conditions as separate matters but, on Mr Starke’s position, they arose out of the one course of conduct and, accordingly, should have been dealt with in one determination on misconduct with one penalty. Mr Starke therefore submitted that there is an arguable case on judicial review that he will be disciplined twice for the same course of conduct.
Consideration
Abuse of process
On the basis of the matters put by Mr Starke, I accept the issue of duplication will be addressed in the Tribunal and, accordingly, I do not further consider abuse of process.
Rule 256.5
The Commissioner filed the interlocutory application for summary dismissal pursuant to rr 144.2 and 256.5 on 16 January 2025. The Commissioner sought an extension of time “to the extent required”. The extension of time was agreed by the parties and this Court made an order on 11 February 2025 extending the time to file and serve the interlocutory application nunc pro tunc to 16 January 2025 thus bringing the application within r 256.5.
Did the Commissioner make a decision of the character alleged?
Judicial review addresses the process by which a reviewable decision was made rather than the merits of such a decision. An applicant must, among other things, identify the decision the subject of the judicial review proceedings.
The Commissioner contended that he did not make a decision to the effect alleged in the judicial review application. The success of this argument depended on the application of the legislative provisions and the proper characterisation of the correspondence between Mr Starke and the Commissioner.
Mr Starke’s 5 May letter described its purpose as providing submissions that addressed why, in the circumstances, the better and more appropriate conduct finding was unsatisfactory professional conduct. The letter acknowledged that the Commissioner relied on the 13 July letter and the complainant’s email. The 5 May letter did not dispute that, in May 2020, Mr Starke retained counsel but contended that the Commissioner had failed to take into account the extraordinary circumstances that confronted him at the time. Mr Starke did not dispute the underlying factual matters upon which the Commissioner’s preliminary view was formed, but rather put matters Mr Starke contended should have been considered by the Commissioner. He also asserted unworkability of the conditions on the practising certificate. The 5 May letter also accepted that counsel was not advised of the practising certificate conditions but stated that Mr Starke did not demonstrate any wilful intention and the circumstances were not of Mr Starke’s making. Mr Starke thus did not shy away from the matters conceded by him in the 13 July letter on which the Commissioner relied in forming his preliminary views. The submissions in the 5 May letter were put in support of the position that the better and more appropriate characterisation of Mr Starke’s conduct was unsatisfactory professional conduct. The letter also reiterated that there was unfairness in having two findings in relation to conduct and penalty with respect to the same course of conduct.
As set out above, on 15 May 2024, the Commissioner responded to the 5 May letter. The Commissioner maintained his view the conduct was professional misconduct and, having formed the view there was evidence of professional misconduct, the Commissioner was of the view the conduct could adequately be dealt with under s 77J(2).
It is thus readily apparent from the correspondence that, having considered the matters set out in the 5 May letter, the Commissioner refuted the characterisation of Mr Starke’s conduct as unsatisfactory professional conduct, maintained his position that the conduct amounted to professional misconduct and informed Mr Starke that he was of the view the conduct could be dealt with under s 77J(2). The Commissioner proposed certain disciplinary action and sought Mr Starke’s consent. The correspondence made clear that if Mr Starke did not consent, it was most likely the Commissioner would then be obliged to lay a charge.
In the 30 May letter, Mr Starke made an “open offer” to consent to a finding of unsatisfactory professional conduct. This followed the statement that Mr Starke did not have any issue, per se, with the reprimand and fine, if the finding was of unsatisfactory professional misconduct. The letter maintained the position the conduct did not meet the relevant definition of professional misconduct. It is thus patently clear that Mr Starke did not accept the characterisation of his conduct as professional misconduct and his willingness to consent to the proposed penalty was predicated on the Commissioner proceeding against him under s 77J(1) of the Act, rather than s 77J(2) of the Act. Mr Starke was not willing to agree to the Commissioner’s request that he consent to dealing with his conduct pursuant to s 77J(2) of the Act.
Mr Starke was, in effect, requesting the Commissioner deal with his conduct pursuant to s 77J(1) of the Act. The Commissioner’s powers to act under s 77J(1) are predicated on the Commissioner’s satisfaction there is evidence of unsatisfactory professional conduct which can adequately be dealt with under s 77J(1). If the Commissioner is satisfied there is evidence of professional misconduct, the Commissioner’s powers are relevantly contained in s 77J(2) of the Act, not s 77J(1).
There is a difficulty with Mr Starke’s characterisation of the 30 May letter, that is, that Mr Starke was neither consenting nor refusing to consent. This was not a case in which a practitioner asked for more time to consider the proposed course of action nor a situation where a practitioner sought to negotiate the kind of sanction the Commissioner may impose. Objectively read, it is evident that Mr Starke did not consent to the proposed disciplinary action because that proposed disciplinary action comprised a finding of professional misconduct, together with the associated penalty proposed by the Commissioner. The characterisation of the conduct and the proposed penalty were inextricably linked. Describing the response as a failure to consent rather than a refusal to consent does not assist Mr Starke. Section 77J(2) empowers the Commissioner to act in certain ways “if the legal practitioner consents”. The consent envisaged by s 77J(2) encompasses both consent to the characterisation of the conduct as professional misconduct capable of being dealt with under the subsection and consent to the proposed penalty.[14] Accordingly, Mr Starke did not consent to “such a course of action” as proposed by the Commissioner within s 77J(2) of the Act.
[14] Legal Profession Conduct Commissioner v Belperio [2024] SASCA 102 at [179] (Stein AJA, Kourakis CJ agreeing at [1], Bleby JA agreeing at [2]).
In the absence of consent, the Commissioner was not empowered to act under s 77J(2). In the absence of Mr Starke’s consent to the characterisation of his conduct as professional misconduct and to the proposed penalty pursuant to s 77J(2), the Commissioner was obliged to lay a charge, unless the Commissioner determined that it was not in the public interest to lay a charge. The obligation to lay a charge was consequential upon the application of s 77L of the Act.[15]
[15] Legal Profession Conduct Commissioner v Belperio [2024] SASCA 102 at [189] (Stein AJA, Kourakis CJ agreeing at [1], Bleby JA agreeing at [2]).

It follows that the characterisation of the Commissioner’s conduct as abandoning an administrative process to instead make a decision to lay a charge is flawed and inapposite. The Commissioner complied with the obligation under s 77L to lay a charge in circumstances in which Mr Starke had not consented to the proposed course of action pursuant to s 77J(2).
It follows that there are no reasonable prospects of success on the judicial review application and the Commissioner’s application for summary dismissal should be granted.
For completeness, I address below the balance of the issues raised by the parties.
Was an own motion investigation required?
Mr Starke throughout his correspondence and in submissions complained about the Commissioner asking questions directed to the conditions on Mr Starke’s practising certificate prior to having commenced an own motion investigation. Mr Starke did not go so far as to submit that the Commissioner cannot examine matters which arise out of an investigation but took the position that the Commissioner can only investigate an enlarged question if the matter is the subject of the complaint, or if the Commissioner first commences an own initiative investigation. I do not accept that submission for the following reasons.
The Act does not prohibit the Commissioner from considering the broader circumstances of conduct alleged in a complaint. There is no express legislative requirement which obliges the Commissioner to commence a separate own motion investigation before broader enquiries may be made arising out of the subject matter of a complaint. The manner in which Mr Starke sought to confine the Commissioner’s powers is inconsistent with the purpose of the Act and the Commissioner’s function as a regulator. Such an interpretation would practically and significantly confine the Commissioner’s ability to investigate what may amount to unsatisfactory professional conduct or professional misconduct. For example, there may be circumstances in which a complainant is unaware of matters which relate to, or arise in connection with, the complaint (such as, in this case, the existence of relevant conditions on the practising certificate) or the existence of other potential misconduct associated with matters the subject of the complaint.
Once established, an investigation is at large.[16] As White J observed in Finlayson v Legal Practitioners Conduct Board,[17] a complaint in the first instance identifies the conduct to be investigated to assess whether the practitioner has engaged in any unprofessional or unsatisfactory conduct.[18] It also informs the scope of the investigation which may include conduct reasonably incidental to, or associated with, the conduct about which the complaint is made even if the complaint does not expressly refer to it. The scope may be enlarged or confined by any response or explanation given by the practitioner when the complaint is published to the practitioner.[19] As an incident of the investigation, the investigator may become aware of additional matters which may give rise to a reasonable suspicion a practitioner has engaged in professional misconduct or unsatisfactory professional conduct which may cause the Commissioner to have reasonable cause to suspect the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.[20]
[16] Finlayson v Legal Practitioners Conduct Board [2012] SASC 77; (2012) 112 SASR 549 at [25].
[17] [2012] SASC 77; (2012) 112 SASR 549 at [25].
[18] These terms referred to the kind of conduct addressed in the legislation at the relevant time.
[19] Finlayson v Legal Practitioners Conduct Board [2012] SASC 77; (2012) 112 SASR 549 at [25].
[20] Finlayson v Legal Practitioners Conduct Board [2012] SASC 77; (2012) 112 SASR 549 at [32].
The potential breach of the conditions on Mr Starke’s practising certificate arose directly out of the complaint by the complainant of Mr Starke’s failure to pay her fees. The Commissioner was not precluded from considering the broader circumstances of the conduct the subject of the complaint. In circumstances in which a barrister was complaining about failure to pay fees, it was within the scope of the Commissioner’s powers to consider whether there was a potential breach of the conditions on Mr Starke’s practising certificate which directly related to payment of counsel fees and was thus reasonably associated with, or incidental to, the subject of the complaint. It was not beyond the scope of the Commissioner’s powers to pose the questions asked of Mr Starke, nor was the Commissioner obliged to first commence an own motion investigation in order to be able to pose any such questions in addressing the complaint.
Was the Commissioner obliged to give reasons?
Mr Starke complained that the Commissioner failed to provide reasons for his decision that Mr Starke’s conduct amounted to professional misconduct.
The Commissioner is not obliged to provide written reasons if the Commissioner acts pursuant to s 77J (whether with or without consent) or lays charges in the Tribunal.[21] Section 77L does not oblige the Commissioner to provide the practitioner with the opportunity to make written submissions.[22] In any event, on 18 June 2024, the Commissioner responded to Mr Starke’s correspondence by setting out the Commissioner’s view of the relevant chronology of events. The Commissioner offered to provide Mr Starke with a further opportunity to make submissions. The Commissioner invited Mr Starke to consider specific authorities which were said to establish that a breach of a condition of a practising certificate is a serious matter properly characterised as professional misconduct. Mr Starke was also provided with a recent decision of the Tribunal of June 2024 which held that a practitioner’s breach of a condition of his practising certificate constituted professional misconduct. The Commissioner thus indicated the basis upon which he characterised Mr Starke’s breach of practising certificate conditions as professional misconduct, rather than unsatisfactory professional conduct. It was not suggested that thereafter Mr Starke took up the opportunity to make further submissions, nor changed his position in relation to the Commissioner’s characterisation of the asserted conduct.
[21] Legal Profession Conduct Commissioner v Belperio [2024] SASCA 102 at [110] (Stein AJA, Kourakis CJ agreeing at [1], Bleby JA agreeing at [2]).
[22] Legal Profession Conduct Commissioner v Belperio [2024] SASCA 102 at [107] (Stein AJA, Kourakis CJ agreeing at [1], Bleby JA agreeing at [2]).
That is also sufficient to dispose of Mr Starke’s submission that he was deprived of the opportunity to complete a process. For the reasons set out above, Mr Starke was not so deprived, however, in any event Mr Starke was given the opportunity to make further submissions but failed to take up that opportunity.
Could the Commissioner consider the matters referred to in Mr Starke’s correspondence?
The evidence to which the Commissioner is entitled to have regard in s 77J(2) is not limited to admissible evidence nor evidence complying with the rules of evidence.[23] Accordingly, the Commissioner was not limited to considering statements in Mr Starke’s correspondence only if they constituted admissible evidence. Whether statements made in the 13 July letter are admissible is a matter which Mr Starke may choose, if so advised, to raise in the Tribunal in reply to the charge. The same may be said about other matters raised by Mr Starke such as the impact of COVID-19 restrictions and timing difficulties in briefing counsel at short notice.
[23] Legal Profession Conduct Commissioner v Belperio [2024] SASCA 102 at [170]-[172] (Stein AJA, Kourakis CJ agreeing at [1], Bleby JA agreeing at [2]).
Mr Starke submitted that, on the facts, his practising certificate conditions had not been breached. In forming his view whether he was satisfied there was evidence capable of enabling him to proceed to address the conduct pursuant to s 77J, the Commissioner was entitled to rely on the chronology of events and statements in the 13 July letter. Whether or not the evidence will be sufficient to establish breach of the practising certificate conditions for the purposes of a finding by the Tribunal is properly a matter for consideration by the Tribunal in due course.
Relevance of asserted course of conduct
Mr Starke submitted that the matters arose out of one course of conduct and criticised the Commissioner for addressing the failure to pay counsel and the asserted breaches of the conditions on the practising certificate separately, referring to James Cook University v Ridd[24] (“James Cook”) in support. Mr Starke accepted a course of conduct could give rise to two separate findings of misconduct contemplated by the Act but submitted that the Commissioner could only impose one penalty.
[24] James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566 at [163] (Griffiths and SC Derrington JJ)
The discussion in James Cook relied on by Mr Starke related to a question of imposition of a pecuniary penalty under the Fair Work Act 2009 (Cth) (“FWA”). Section 557 of the FWA provides that, for the purposes of the relevant Part, two or more contraventions of a civil remedy provision are taken to constitute a single contravention if the contraventions arose out of a course of conduct by the person. In James Cook, the majority quoted[25] from a passage in Construction, Forestry, Mining and Energy Union v Cahill[26] in which “course of conduct” was described as a concept arising in the criminal context and which may be relevant to the proper exercise of a sentencing discretion. The principle recognises that where the legal and factual elements of multiple offences for which an offender has been charged are interrelated, care must be taken to avoid punishing an offender twice.[27] The concept of course of conduct is relevant to the question of what penalty may be imposed if a number of charges arising from the same course of conduct are proved. It does not assist in answering the question whether more than one instance of conduct during a course of conduct meets the definition of unsatisfactory professional conduct or professional misconduct within the meaning of the Act, nor whether the Commissioner formed the requisite state of satisfaction of evidence to give rise to the powers of the Commissioner to deal with such conduct under s 77J. The issue of course of conduct is one which Mr Starke may choose to agitate before the Tribunal if a question of penalty arises.
[25] James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566 at [163] (Griffiths and SC Derrington JJ)
[26] [2010] FCAFC 39 at [39] (Middleton and Gordon JJ).
[27] James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566 at [163] (Griffiths and SC Derrington JJ).
Conclusion
It follows from my reasons above that I am satisfied there is no reasonable basis for the judicial review proceedings pursuant to r 256.5 of the UCR. Accordingly, the Commissioner’s application for summary dismissal should be granted.
Orders
I grant the Commissioner’s application for summary dismissal of the judicial review application.
I dismiss Mr Starke’s application for judicial review.

[2025] SASC 140

3 September 2025