Margiotta v Legal Services Commissioner

The Application of s152 of the Act 35 This section clearly invests in the defendant a discretion to be applied in accordance with the law, using all those factors which may be taken into account by courts in the exercise of discretion. In my view however, there is a preliminary requirement that the defendant, before exercising the discretion, has to firstly be satisfied that "….it is necessary for the orderly transaction of the client's business". If the defendant is initially satisfied that that condition is met, then he may still also need to take into account the nature of the client's business, and the orderly transaction of it as part of the exercise of the discretion invested in the defendant. 36 The defendant contends that the words relating to his being satisfied that "….it is necessary for the orderly transaction of the client's business", should be given a wide meaning, and should be construed to mean the general affairs of the client. 37 If the legislature had intended that to be the case, then the words "the client's business" would be unusual words to import the general affairs of the clients. However, the words "the client's business", if they were the only words used, could be so interpreted. Yet the power to exercise a discretion to waive a lien is limited by the addition of the words "necessary" and for the "orderly transaction". These words, particularly "orderly transaction", cannot in my view, have been included by the legislature to give a power to destroy something as fundamental as a solicitor's lien, without being given their ordinary meaning in establishing the condition precedent to the exercise of the discretion. The words have some work to do. 38 Clearly, "orderly transaction of the client's business" has a meaning other than just the "affairs" or the "interests" of the client. In my view, "orderly transaction of the client's business" can only mean something relating to a business or professional undertaking of a commercial or corporate activity including the business of government, or some semi-government or non-government activity. The words should be given the widest interpretation, but in the context of the activity on the part of the client, that is just not simply the satisfying of an otherwise legitimate need, such as obtaining evidence to sue for a private citizen or corporation where activities do not involve a system which could be described as "orderly transaction of the client's business". 39 It therefore seems to me that the defendant has not given effect to the words of the section in deeming himself satisfied that the waiver of the lien is necessary, and therefore his discretion has miscarried in the determination that has been made.