Basten JA, Leeming JA, McCallum JA, Wilson J, Callum JA
Catchwords
[2005] HCA 12
Hamod v State of New South Wales [2011] NSWCA 375
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
[2016] HCA 29
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597
Source
Original judgment source is linked above.
Catchwords
[2005] HCA 12
Hamod v State of New South Wales [2011] NSWCA 375
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149[2016] HCA 29
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597
Judgment (3 paragraphs)
[1]
The application for judicial review
The summons in the Supreme Court sought declaratory relief and orders in the nature of certiorari and mandamus quashing the decision and requiring the Commissioner to "perform [his] duty".
The primary judge accepted, as had been argued by the Legal Services Commissioner, that the decision not to exercise the power under s 313 to conduct an internal review was not amenable to the relief sought: at [39]. Her Honour gave two reasons for that conclusion. The first was an application of the principle stated in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159; [1996] HCA 44 that, for certiorari to issue, the decision had to be one which had "a discernible or apparent legal effect upon rights". Section 266(1) of the Legal Profession Uniform Law (NSW) provides that a person "may" make a complaint about a legal practitioner to the designated local regulatory authority (here, the Legal Services Commissioner, who referred the complaint to the Law Society). Implicitly assuming that to be a "right" for the purpose of the principle in Hot Holdings Pty Ltd v Creasy, her Honour held that, as the complaint was brought out of time, Mr Mendonca "either had no right to complain that could be affected by the decision of [the Commissioner] not to exercise his discretion to review the decision of the Law Society, or, such right as he had had was fully exercised": at [37]. Her Honour noted in that context that, even if the Law Society had determined to take disciplinary action against the solicitor in the New South Wales Civil and Administrative Tribunal, Mr Mendonca would have had no rights in connection with such action.
The second reason turned on the construction of the statutory provision invoked in the application to the Legal Services Commissioner for internal review, s 313(1) of the Uniform Law. Section 313 provides:
313 Internal review of decisions of local regulatory authority
(1) The designated local regulatory authority may (at its absolute discretion) conduct an internal review of a decision made by the designated local regulatory authority (or its delegate) if the designated local regulatory authority considers it appropriate to do so.
(2) On the review, the designated local regulatory authority is to consider whether the decision was dealt with appropriately and whether the decision was based on reasonable grounds.
(3) On the review, the designated local regulatory authority may confirm the original decision, make a new decision, or refer the matter back to the original decision-maker.
The primary judge held that s 313(1) confers an "absolute discretion" to conduct an internal review and that, there being "no duty for the decision maker to act", an order in the nature of mandamus is not available: at [38]. However, her Honour also briefly addressed the substantive grounds raised. Her Honour was not satisfied that there was any denial of procedural fairness and considered that the grounds otherwise invited merits review, which was not available: at [40], [41]. Her Honour proceeded (with respect, unnecessarily) to express a view on the merits in case her earlier conclusions were wrong: at [42].
[2]
Matters in issue in this Court
The proposed notice of appeal did not identify any error in the decision of the primary judge in any useful form. The proposed appeal grounds were generic (eg "error of principles and questions of public importance", "errors on face of the record and jurisdictional errors") and gave no substance to any of those grounds.
The summons was supported by "particulars" which, at the outset of the hearing, the applicant indicated he wished to rely upon as additional grounds of appeal. The "particulars" were factual and discursive. They addressed the merits of the underlying complaint against the solicitor and did not assist in identifying any alleged error in the decision of the primary judge in any comprehensible form.
Implicitly acknowledging those difficulties, the applicant submitted that the Court "must ensure that a self-represented party is not disadvantaged", citing Hamod v State of New South Wales [2011] NSWCA 375. He also referred to the decision of the Victorian Supreme Court in XYZ v State Trustees Limited [2006] VSC 444 at [43] (Cavanough J) as authority for the proposition that the duty to ensure that a trial is fair "may involve suggesting a question of law which the self-represented person has not articulated".
In Hamod, the Court said at [309] (Beazley JA, Giles and Whealy JJA agreeing at [829] and [830]):
"Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95."
The authorities cited were all criminal cases. The content of the duty to ensure that a trial is fair is well-understood in that context. It may be accepted that fairness remains an imperative in other kinds of proceedings but the content of the duty will vary according to the circumstances. The Court would not suffer its processes to serve unequal justice, as might occur if legal proceedings operated within a construct only accessible to the legally trained. To that end, there may be cases in which it is appropriate for the Court to give the correct legal construction to an arguable point poorly articulated by a self-represented litigant. However, the Court is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point.
Mr Mendonca's arguments were developed to some degree at the hearing, where he made three principal complaints concerning the primary judge's decision.
The first was that, although her Honour set out in full most of the Legal Services Commissioner's letter dated 16 April 2018, she omitted the paragraph in which the Commissioner recorded the applicant's request for the Commissioner to make a finding of contempt of court against the solicitor. The applicant contended that his submissions before the primary judge addressed that point but her Honour failed to deal with it.
The submission that had been made to the Commissioner (at page 75 of the white book) was not that the Commissioner should himself make a finding of contempt but that he should institute proceedings in the New South Wales Civil and Administrative Tribunal to have the solicitor dealt with for conduct which Mr Mendonca asserts amounted to a contempt. The written submissions before the primary judge attempted to explain that but the explanation was confusing. The written submissions said "Mr Mendonca has not sought a contempt of court finding. Mr Mendonca's allegation as explained above relates to [the solicitor's] breach of duty to the Court in obstructing the Court from arriving at the truth" (Mr Mendonca's submissions were written in the third person). In this Court, Mr Mendonca explained that what he had sought was the initiation and prosecution of disciplinary proceedings against the solicitor in the New South Wales Civil and Administrative Tribunal, as contemplated by s 300 of the Uniform Law.
It is hardly surprising, in light of the terms of the written submissions, that the primary judge did not address the relevant paragraph of the Commissioner's letter. The point now made was not clearly articulated to her Honour, if at all.
In any event, there was no merit in the point. Assuming the Commissioner's decision was amenable to review, Mr Mendonca had to establish before the primary judge that it was beyond power for the Commissioner not to be satisfied that an internal review should be conducted into the alleged contempt, or that the Commissioner's finding was patently infected by a material legal error. The conduct complained of concerned a document to which I will refer as the 2006 policy. Part of Mr Mendonca's complaint to the Law Society was that the solicitor failed to discover that document when obliged to do so and that this amounted to a contempt of court warranting the commencement of disciplinary proceedings against him.
The complaint was misconceived. In the first instance, there does not appear to have been any obligation to discover the 2006 policy. The parties were ordered to exchange categories of documents for discovery. Mr Mendonca was to give discovery of documents which recorded his calculations of the amounts he claimed by way of bonus and documents which recorded the method and basis for his calculation of overheads. The 2006 policy was not such a document; he said he had not relied on it. The assertion that it ought to have been discovered appears to be based on a misreading of an email from the solicitor to the barrister dated 3 June 2014 referring to a different document which the solicitor thought "may also raise another allegation that we did not produce this per the Notice to Produce (as it relates to the method of calculation of the bonus)". That comment was made not in reference to the 2006 policy but in reference to an email concerning a meeting on 8 February 2008 at which managers did discuss the method of calculation of their bonuses.
Separately, Mr Mendonca submitted that the failure to tender the 2006 policy in the proceedings had the result that the Court was misled. This separate basis for the contempt allegation does not appear to have been articulated in the submissions to the Legal Services Commissioner and in any event is without substance. Mr Mendonca identified no basis for concluding that the solicitor deliberately misled the Court on that issue. Mr Mendonca's position was that he did not rely on the 2006 policy but that he instructed his solicitor to tender it. It is unsurprising that it was not tendered, since Mr Mendonca claimed to have a contractual entitlement to his annual bonuses and the 2006 policy (dated 19 November 2006) made plain that bonuses would be paid as a matter of discretion.
The evidence in the District Court did include a later policy document dated 11 July 2007. The 2007 policy was identical to the 2006 policy except that it was endorsed as having been approved by the Board of Directors and it included a direction to refer to the "staff bonus excel spreadsheet for details on how to calculate staff bonuses". The evidence in the District Court also included a version of the 2006 policy revised on 9 October 2008. That is the document Judge Balla found was created by Mr Mendonca for the purpose of the proceedings in the District Court. It included the unlikely provision that, rather than being discretionary, payment of a performance bonus "is a RIGHT". It purported to deny the right to the employer to "change or even cancel the policy without the written consent of the employee". Further, where the 2006 policy stated "bonuses are forfeited" by a staff member leaving the firm before payment of the bonus, the revised document inserted the word "not" ("bonuses are not forfeited"). In short, the 2006 policy tends to support Judge Balla's conclusion that the 2008 policy was created for the purpose of the proceedings. It is difficult to see how the Court was misled by its absence from the proceedings.
The second complaint developed in argument was the submission that the primary judge was in error in accepting that the Legal Services Commissioner was not required under s 313(1) to assess the merits of the decision of the Law Society for the purpose of determining whether to conduct an internal review. The primary judge addressed that issue at [38] of her decision, saying:
"There are also the terms of s 313 of the LP Law to consider, in that s 313(1) confers an "absolute discretion" on the LSC to conduct an internal review if he considered it appropriate to do so. The LP Law imposes no duty on the LSC, and does not circumscribe in any way the exercise of the discretion, or dictate any mandatory or even suggested considerations. Where there is no duty for the decision maker to act, or act in a particular way, an order in the nature of mandamus is not available."
The discretion to conduct a review was conditional upon the Commissioner being persuaded that it was appropriate to do so. The proposition that the Commissioner could not decline to undertake a review of the decision of the Law Society without first reviewing that decision on the merits is untenable. As the High Court has held in relation to provisions of the Migration Act 1958 (Cth) conferring powers on the Minister, but stating that the Minister is under no duty to consider exercising the power, the Court cannot order the exercise of the power: Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 at [12], [53].
The third complaint concerned the Commissioner's reference to the principle of finality. Mr Mendonca submitted that the decision in D'Orta-Ekenaike at [45] (Gleeson CJ, Gummow, Hayne and Heydon JJ) contemplates exceptions and that one exception is "the Legal Services Commissioner". The submission does not assist Mr Mendonca. Assuming the Commissioner's decision was amenable to review, it does not follow from the recognition of exceptions to the principle of finality that the Commissioner was required by law to disregard that principle.
The proposed appeal does not raise any issue of principle or question of public importance. The applicant has not established any injustice. For those reasons, I propose that the summons for leave to appeal be dismissed with costs.
[3]
Endnotes
Mendonca v Chan & Naylor (Parramatta) Pty Ltd as Trustee for Chan & Naylor (Parramatta) Trust (District Court (NSW), Balla DCJ, 12 June 2014, unrep); Mendonca v Chan & Naylor (Parramatta) Pty Ltd as Trustee for Chan & Naylor (Parramatta) Trust (District Court (NSW), Balla DCJ, 27 June 2014, unrep).
Mendonca v Chan & Naylor (Parramatta) Pty Ltd as Trustee for Chan & Naylor (Parramatta) Trust (District Court (NSW), McLoughlin DCJ, 6 November 2015, unrep); Mendonca v Chan & Naylor (Parramatta) Pty Ltd as Trustee for Chan & Naylor (Parramatta) Trust (District Court (NSW), McLoughlin DCJ, 18 November 2015, unrep); Mendonca v Dooley & Associates Solicitors Pty Ltd [2016] NSWCA 144.
Mendonca v Legal Services Commissioner [2019] NSWSC 409.
La La Land Byron Bay Pty Ltd v The Independent Liquor and Gaming Authority [2015] NSWCA 254 at [9], [11] (Beazley P, Gleeson JA, Sackville AJA).
Mendonca v Chan & Naylor (Parramatta) Pty Ltd [2014] FCCA 1042 at [180] (Judge Cameron).
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Decision last updated: 07 May 2020
Solicitors:
Office of the Legal Services Commissioner (Respondent)
File Number(s): 2019/142142
Decision under appeal Court or tribunal: Supreme Court of New South Wales
Jurisdiction: Civil
Citation: Mendonca v Legal Services Commissioner [2019] NSWSC 409
Date of Decision: 16 April 2019
Before: Wilson J
File Number(s): 2018/00214619
Judgment
BASTEN JA: I agree with McCallum JA.
LEEMING JA: I agree with McCallum JA.
McCALLUM JA: Gerard Mendonca brought proceedings in the District Court against his former employer seeking annual bonus payments to which he claimed to have a contractual entitlement. The judge disbelieved Mr Mendonca's evidence, found that he had created a document for the purpose of the litigation, dismissed the claim and ordered him to pay indemnity costs. [1] Mr Mendonca then sought personal costs orders against his lawyers on the basis that they ought to have appreciated the hopelessness of his case. That application failed. [2] After a belated unsuccessful attempt to appeal from the original judgment in the action against the employer, [3] he then lodged formal complaints against the lawyers, including a complaint against the solicitor. The Law Society of New South Wales closed that complaint without taking any disciplinary action. Mr Mendonca then requested the Commissioner of Legal Services to undertake an internal review of that decision. The Commissioner declined to do so. Mr Mendonca then sought judicial review of the Commissioner's decision in the Supreme Court. That summons was dismissed by Wilson J. [4]
Mr Mendonca now seeks leave to appeal from the judgment of Wilson J. Leave is required because, although the judgment was final, the proposed appeal does not involve a matter at issue of the value of $100,000 or more: Supreme Court Act 1970 (NSW), s 101(2)(r).
The application for leave to appeal and the argument on the proposed appeal were heard concurrently, as allowed under r 51.14 of the Uniform Civil Procedure Rules 2005 (NSW). The Court accordingly received lengthy written submissions and heard full argument as to the proposed grounds of appeal, of which there were many.
The principles governing an application for leave to appeal are well-established and are repeated in many decisions of this Court. It is enough to refer to the reported decision of Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 (Macfarlan, Gleeson and Payne JJA) where the Court said at [28] (citations omitted):
"Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong."
Leave to appeal should not be granted in this case. The reasons for that conclusion can be stated shortly but with due regard to the comprehensive submissions made for the purpose of the concurrent hearing. [5]
Determination of the complaint against the solicitor
The solicitor commenced acting for Mr Mendonca in 2012 in respect of two sets of proceedings against his former employer. One was the unsuccessful action in the District Court. The other was a claim in the Federal Circuit Court of Australia, which was also unsuccessful. [6] Both actions were determined in 2014.
Mr Mendonca's complaint about the solicitor was made in early 2017. On 15 December 2017, the Law Society notified Mr Mendonca of its decision to close the complaint on the basis that it was partly out of time and was otherwise misconceived and lacking in substance. The letter informed Mr Mendonca of the Legal Services Commissioner's power to conduct an internal review if the Commissioner considered it appropriate to do so.
On 21 December 2017, Mr Mendonca sought internal review initially on the basis that "the one issue" the Law Society had failed to consider was an allegation that, by failing to discover a document in the proceedings in the District Court, the solicitor had committed "contempt of court that amounts to professional misconduct or at least unsatisfactory professional conduct". In a separate email also dated 21 December 2017, he sought internal review in respect of an alleged failure on the part of the solicitor to follow his instructions to discontinue the proceedings in the Federal Circuit Court. That aspect of the application raised a new complaint which in any event was not substantiated by any plausible material provided to the Commissioner.
The Legal Services Commissioner communicated his decision not to exercise his discretion to conduct an internal review in a letter dated 16 April 2018. In that letter, relevantly, the Commissioner:
1. stated that s 313(1) of the Uniform Law does not require the Commissioner to make an assessment of the merits in determining whether to conduct an internal review;
2. invoked the principle of finality, citing D'Orta Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [36];
3. noted that, in addition to seeking a review, Mr Mendonca had also asked the Commissioner "to make a contempt of court finding against the solicitor" and stated that he did not have the power to make such a finding.
In order to establish a basis for judicial review of that decision in the Supreme Court, Mr Mendonca had to show that the decision was beyond power or that the Commissioner's letter (assuming it to be a record in the relevant sense) demonstrated legal error on its face.