Carson v Legal Services Commissioner and Anor. [2000] NSWSC 336 | Case summary

HER HONOUR : 1 On 23 February 2000 I delivered reasons for judgment in proceedings brought by the claimant against the opponent claiming judicial review of two decisions made by the opponent in his role as Legal Services Commissioner ("the LSC") appointed under the Legal Profession Act 1987 ("the Act"): Carson v Legal Services Commissioner [2000] NSW SC 64, unreported. In order to afford the parties an opportunity to consider and be heard on the formulation of final orders reflecting my findings of fact and conclusions of law, I did not then proceed to pronounce orders. 2 By notice of motion dated 24 March 2000 the claimant seeks reconsideration of one aspect of the judgment. The background can be briefly explained. The claimant is a legal practitioner against whom a complaint had been made under the Act. The LSC made two decisions that affected the claimant. The first was made on 30 March 1995. He decided to exercise his power under s 138(2) of the Act to accept the complaint concerning the claimant's conduct out of time. That decision is not relevant for present purposes. The second decision was made on 17 December 1996. Pursuant to s 155(2) of the Act, the LSC decided to institute proceedings in the Legal Services Tribunal ("the Tribunal") against the claimant by filing an Information alleging professional misconduct. The Information contained several different grounds on which the allegation was based. I held that this decision was made in contravention of rules of procedural fairness. However, I determined that, having regard to the course the proceedings before me had taken, it would be inappropriate to declare the decision void (paras 130 - 133). I also held that, in addition to the denial of procedural fairness, legal error was established by the claimant in that the LSC failed to give reasons, as required by the Act, for the decision. In relation to this error I took the same view, that is, that the error should not, in the circumstances, have the consequence that the decision be declared void (para 143). 3 It is my determination not to declare the s 155(2) decision void that the claimant seeks to have re-considered. It was not contested on behalf of the LSC that, given that final orders have not been pronounced or entered, there is a power in the court to adopt the course proposed by the claimant. The LSC does, however, oppose the adoption of that course in the present case, arguing that the circumstances for the exercise of the power are not appropriate. 4 There is no really clear definition of the circumstances in which the power may be exercised, or the circumstances in which it ought to be exercised. Statements of principle exist in a number of decided cases of which perhaps the most frequently cited and most comprehensive is Autodesk Inc v Dyason (No2) (1993) 176 CLR 300. Dissenting as to the application of the principle he stated, but in a passage frequently adopted, Mason CJ wrote: "These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or re-hearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law … however it must be emphasised that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a re-hearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the re-hearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases ." (emphasis added) 5 Essential to this formulation is the existence in the court of a misapprehension of fact or law. Other statements confine the power more or less rigidly. For example, in the same case, Brennan J (as he then was) wrote: "It is one thing to re-open an appeal after judgment if the Court has reached a conclusion by adopting a proposition of fact or law which the unsuccessful party has not had the opportunity to argue. In that event, natural justice is denied and it can be said that the Court's jurisdiction to hear and determine the matter is not exhausted. Here the ground on which the appeal was determined had been argued in the courts below and had been the subject of submissions in this Court. The appeal was determined after it was fully heard. That being so, I find no jurisdiction to set aside the judgment already pronounced merely because it is submitted by the unsuccessful party that, on further argument, the Court would be satisfied that it had reached the wrong conclusion in law ." (emphasis added)

His Honour cited Smith v NSW Bar Association (No.2) (1992) 66 ALJR 605 and Autodesk as authority for the proposition . 8 He concluded that, in that case, the requisite exceptional circumstances had not been demonstrated and would have refused to re-consider the decision there in question. 9 Kirby P and Priestley JA took a different view. Kirby P did not consider that remediability should be the sole or even governing criterion in such an application. He had particular regard to the availability of appeal by special leave to the High Court, which, on a strict application of the test adopted by Giles JA, would have excluded many cases in which the power ought properly to be exercised. 10 I have not mentioned all of the cases to which I was referred in which the power and its proper application have been considered. The above provides a reasonable overview of the limits of the jurisdiction, and the differing views taken in relation to its exercise. 11 I turn now to the basis upon which the claimant contends that I should, in this case, exercise the power. It is necessary briefly to state some further relevant matters concerning the earlier proceedings and the reasons for judgment. 12 The claimant put his case for judicial review on a variety of bases. These included those I described as procedural matters, and those I described as substantive grounds. By the substantive grounds the claimant asserted that it would be an abuse of process to allow the proceedings instituted by the LSC in the Tribunal to continue, because their institution was unreasonable, they were doomed to fail, and could not result in a finding of professional misconduct against him in any respect. Determination of these grounds entailed a comprehensive and detailed review of the allegations against him and the evidence relevant to those allegations. The claimant provided affidavit and oral evidence on which he was cross-examined over several days. A vast amount of documentary material was in evidence. The parties made extensive and detailed written and oral submissions. Ultimately, I held that in respect of three grounds in the Information the evidence was capable of supporting a finding of professional misconduct. I considered whether, as a consequence of that conclusion, I should declare the decision void. The result of such a declaration would be to return the matter to the LSC, to be determined in accordance with proper procedures. In the circumstances I held that, having regard to the extensive evidence and its detailed examination before me, any further preliminary consideration of the allegations would be superfluous. Thus it was that I determined that the circumstances did not call for nor warrant a declaration that the decision to institute proceedings was void nor any consequential orders. In doing so I called in aid the decision of the Privy Council in Calvin v Carr [1979] 1NSWLR 1. It was the reference to this decision that provoked the present application. Neither party had referred to Calvin v Carr in the written or oral submissions. The claimant contends that proper analysis of the reasons for judgment discloses that the decision Calvin v Carr was a significant basis for the impugned determination, and that I misunderstood Calvin v Carr or alternatively was unaware of and failed to apply a recent development in this state affecting the proper approach to Calvin v Carr. The decision in Calvin v Carr not having been raised by the parties, and my not having alerted them to my intention to refer to it and rely upon it, the claimant was denied the opportunity of putting submissions that would have deterred me from the erroneous path on which I had embarked. The recent development in this state that I referred to is the decision of the Court of Appeal in Hill v Green; Jarvis v Buckley; Wood v Buckley; Young v Buckley [1999] NSWCA 477, 22 December 1999, unreported. 13 It is necessary now to take a somewhat unusual, and in my view, undesirable, course, and that is to attempt further to explain or elaborate upon the reasons for judgment. I did not intend to (and I do not believe a fair reading of the judgment suggests I did) rely upon Calvin v Carr either as the principal reason for my determination, or as binding authority for the course I was proposing to take. My reasons for deciding against declaring the decision void are contained in paragraphs 130 - 131 of the reasons for judgment. The reference to Calvin v Carr in paragraph 133 was explicitly made by way of analogy. That expresses accurately the view I took of the relevance of Calvin v Carr. It is obvious that the present circumstances, in which the claimant sought judicial review of the LSC's decision, are not of precisely the same kind as existed in Calvin v Carr. However, I considered that the approach taken in that case could, in relevant respects, provide some support for the determination I had made on other grounds. 14 It is then necessary to consider whether the Court of Appeal decision in Hill demonstrates error in my understanding of the extent to which Calvin v Carr remains authority in NSW. Fitzgerald JA, with whom Beazley JA agreed, analysed approaches to the question of the consequences of a denial of procedural fairness where the original proceedings in which the denial occurred are superseded by some other procedure in which procedural fairness is not denied. What his Honour said focussed on the existence of "an adequate right of appeal". That, of course, has nothing to do with the decision I made because the proceedings before me (which I held rendered further preliminary consideration superfluous) were not an appeal and did not and could not substitute for the implementation of proper procedures in the first instance. I do not believe that the decision in Hill affects the correctness of what I said in paragraph 133. Perhaps I should state more explicitly what I intended to say. 15 The decision in question was made by the LSC under s 155(2) of the Act. S 155 (2) requires the LSC, after investigating a complaint made under the Act against a legal practitioner, to institute proceedings in the Tribunal: "…if satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of … professional misconduct." 16 In reaching that conclusion the LSC was obliged to afford to the claimant an opportunity to be heard. He did not do so. Ordinarily, that conclusion would result in a declaration that the decision was void and an order staying or prohibiting the proceedings in the Tribunal until such an opportunity had been afforded (or orders to similar effect). However, because the claimant had not stopped, in the proceedings before me (and for very good reasons - see Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35) at his claim in relation to the procedure adopted, and had pursued the substantive grounds of his application, a most comprehensive examination of the allegations against him was undertaken. Everything that could have been put before the LSC was, I assumed and assume, put before me. That did not mean that I applied the same test as the LSC was required to apply. It was not for me to determine whether there was a reasonable likelihood that the Tribunal would find the claimant guilty of professional misconduct. I appreciate that this leaves open something of a gap. There is no valid conclusion by the LSC that such a reasonable likelihood existed. The finding of such a reasonable likelihood is a different and arguably more demanding test than that which it was appropriate for me to apply. It should not be assumed that, after all the evidence was given, if the LSC were required again to consider whether to institute proceedings in the Tribunal, he would necessarily make the same decision. But I considered myself obliged to determine all issues before me, and these included the substantive grounds, that is, the grounds asserting that institution of the proceedings in the Tribunal was an abuse of process or unreasonable because doomed to fail. After analysis of all the evidence and argument in that respect, it seemed to me that there was little realistic prospect of a different decision being made. Little, if anything, would be achieved except even longer delay in the resolution of these very old proceedings. 17 The decision I made was made having regard to the essentially discretionary nature of the remedies sought by the claimant. My decision not to grant any of the remedies sought by the claimant depended upon an assumption that all remedies sought were discretionary. Although it was not articulated in this way, the present application depends upon an (implied) assertion that, where procedural fairness has been denied, the remedy sought is not discretionary but is mandated. The claimant now argues, in effect, that no discretion existed. That arises from his proposition that, once the s 155(2) decision is held to have been made in a procedurally unfair way, it is void as distinct from voidable. In support of this proposition the claimant relied upon a number of authorities. The first of these is the decision of the High Court in Barwick v The Law Society of NSW [2000] HCA 2, 3 February 2000. Before the High Court were challenges to decisions made by the Law Society under the Act. The Law Society had failed to comply with the procedures prescribed by the Act in relation to the institution of proceedings in the Tribunal. Absence of procedural fairness was not one of the flaws in those proceedings. The High Court held that, in that case, the proven substantial departure from the prescribed procedures entitled the legal practitioner to an order for prohibition on the ground that the jurisdiction of the Tribunal was not regularly invoked. The majority also said: "53. Not every departure from the procedures laid down by Pt 10 and, in particular, Div 5, will result in a lack of jurisdiction under s 167. However, one of the purposes of the legislation is to bring about the result that, before a matter comes to the Tribunal, it will have been the subject of a complaint which was the subject of an investigation monitored by the Commissioner and considered and dealt with by a Council or the Commissioner under s 155. 54. That raises the question of the extent of compliance with Div 5 in the present case … … 63. It would be inconsistent with the legislative purpose to conclude that the Tribunal has jurisdiction to deal with a matter brought before it in circumstances where the procedures established by Div 5 have been substantially by-passed. No doubt, at least in the case of the first complaint, the reason that occurred was related to the legislative changes during the course of the Law Society's consideration of the matter, although it is difficult to see how that could explain the manner in which the second complaint was dealt with. However that may be, there was such a departure from the requirements of Div 5 as to deprive the Tribunal of jurisdiction ." (emphasis added) 18 I do not think that Barwick is authority for so bold a proposition as the claimant now advances. The High Court was not there considering whether a conclusion that, where the jurisdiction of the Tribunal has been irregularly invoked, by reason of a denial of procedural fairness or otherwise, remedies of the kind here being sought are deprived of their essentially discretionary character or are pre-determined regardless of the considerations that would ordinarily attend a claim for such remedies. A similar response must be given in relation to the two other authorities on which the claimant relied for the proposition that a finding of a denial of procedural fairness can have only one outcome - ironically enough, Calvin v Carr was one such authority. There the Privy Council said: "This argument led necessarily into the difficult area of what is void and what is voidable, as to which some confusion exists in the authorities. Their Lordships' opinion would be, if it became necessary to fix upon one or other of these expressions, that a decision made contrary to natural justice is void, but that, until it is so declared by a competent body or court, it may have some effect, or existence, in law. This condition might be better expressed by saying that the decision is invalid or vitiated. In the present context, where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non existent. So to hold would be wholly unreal." 19 The third authority to which the claimant referred was Forbes v NSW Trotting Club Limited (1979) 143 CLR 242 at p 277. Aickin J, with whom Stephen J agreed, wrote: "That which is done without compliance with applicable principles of natural justice, in circumstances where the relevant authority is obliged to comply with such principles, is not to be regarded as void ab initio so that what purports to be an act done is totally ineffective for all purposes. Such an act is valid and operative unless and until duly challenged but upon such challenge being upheld it is void, not merely from the time of a decision to that effect by a court, but from its inception. Thus, though it is merely voidable, when it is declared to be contrary to natural justice the consequence is that it is deemed to have been void ab initio. Accordingly, it does not follow from the fact that an act is done without compliance with the principles of natural justice that it must be regarded as no act at all and supportable (if at all) as an effective act only on some other basis." 20 Although the words in the passages extracted, taken alone, support the claimant's argument, they have to be seen in the context of the issues that arose in those cases for determination. Those issues did not include the apparent collision of the two conflicting propositions, firstly, that a finding that a decision to which the rules of procedural fairness apply was made in contravention of those rules has the consequence that the decision is void (as distinct from voidable) and secondly, that remedies in the nature of prerogative writs, declarations and injunctions are essentially discretionary. The two propositions simply cannot sit together. While obviously persuasive, the observations of Aickin J were obiter dicta, and secured the express concurrence of only one other member of the Court. I do not regard them as authority for the proposition that denial of procedural fairness in an administrative decision alters the discretionary character of the remedies here under consideration. 21 When a question of a related nature arose in Ridge v Baldwin [1964] AC 40, the House of Lords divided, three members taking the view that the decision was void, two that it was voidable. 22 Perhaps at the risk of provoking a second notice of motion, I have had recourse to a discussion of the subject in Aronson v Dyer: Judicial Review of Administrative Action, Law Book Company, 1996, at pages 653-654 and 755 - 761 and to a discussion by Professor H W Wade in Volumes 83 and 84 of the Law Quarterly Review. Unlawful Administrative Action : Void or voidable? 83 LQR p 499 (p11). 84 LQR p 95 (p12). I remain of the view that I retained a discretion to refuse the relief sought. Whether that is so, and if it is, whether that discretion was properly exercised, is for others to judge. 23 I remind myself of the limited nature of the power to reconsider a decision already made. While I accept that there is room for differences of opinion on the extent (if any) to which discretionary relief may be refused following a finding of a denial of procedural fairness in administrative decision-making, I am not persuaded that I was under any misapprehension of fact or law, or that the claimant was denied an opportunity to put his case on a relevant matter, such as to warrant the exercise of the power. 24 The issue, as I have now articulated it, was not raised in the original proceedings, although there was no reason it could not have been. Indeed, in the comprehensive, detailed and helpful written submissions provided on behalf of the claimant, it was put that, if it were concluded that procedural fairness had been denied in the relevant decision, that decision was void. What was not put, in clear terms, was that that conclusion dictated the grant of a remedy that has otherwise always been seen as discretionary. I say this, not by way of criticism - it is hardly surprising, given the dimensions of the issues that were raised, that the potential consequences of a conclusion of denial of procedural fairness were not the subject of express submissions - but in order to show that the claimant was not deprived of an opportunity to put argument in relation to the question. Even so, if I were firmly persuaded that the position for which the claimant now contends were correct, I would review my earlier determination. Particularly in the light of the passages from Barwick which I have extracted, I am of the view that there remains a discretion to grant or decline to grant the remedies sought by the claimant. 25 I am not satisfied that the circumstances have been established pursuant to which it would be appropriate for me to embark upon a re-consideration, or a variation, of the decision I previously made. 26 The claimant's notice of motion is dismissed.

Carson v Legal Services Commissioner and Anor.

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Judgment (9 paragraphs)

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Cases Cited (8)