Viscariello v Legal Practitioners Conduct Board

The case of Viscariello v Legal Practitioners Conduct Board involved an application for judicial review of a decision by the Legal Practitioners Conduct Board not to investigate a complaint about the conduct of a legal practitioner. The matter was heard in the Supreme Court of New South Wales. The applicant, Viscariello, sought an order compelling the Board to investigate the complaint, arguing that the Board had a public duty to do so once a complaint had been received.

The primary legal issue before the court was whether the Board had a public duty to investigate complaints received under section 76 of the Legal Profession Act 2004 (NSW). The court needed to determine whether the Board’s failure to investigate amounted to a refusal to perform a public duty, which could be compelled by an order in the nature of mandamus. Additionally, the court had to consider whether the applicant had the requisite standing to make a complaint under section 76 and to pursue the matter through judicial review.

The court found that it was reasonably arguable that section 76 imposed a public duty on the Board to investigate complaints about legal practitioners. The Board’s submissions in opposition were considered but were not deemed sufficient to prevent the application from proceeding further. The court concluded that the Board had no discretion to ignore a complaint unless it fell within the narrow exceptions provided in section 76(1b). The applicant’s standing to make a complaint and to seek judicial review was also found to be reasonably arguable, which allowed the application to proceed.

The court granted the application, issuing a writ of mandamus compelling the Board to investigate the complaint. The Board was directed to comply with the order within 28 days.