MURRAY v LEGAL SERVICES COMMISSIONER & ANOR [1999] NSWCA 70 | Case summary

Court of Appeal (NSW)|1998-10-21|Before: Priestley JA, Sheller JA, Stein JA, Commission J

The applicant claimed a declaration that the Commissioner's decision under s155(2) of the Act to institute proceedings against him was void. He also claimed consequential relief in the nature of certiorari against the Commissioner and prohibition against the Tribunal. The applicant claimed that the Commissioner, by failing to provide the him with a copy of the complaint during the investigation and to give him an opportunity to respond to it, had denied him procedural fairness. It was also argued that (as a result of that failure) the Commissioner had been in breach of his statutory duty to record his decision under s156 and to notify the applicant of it and the reasons for doing so under s171J.

The Commissioner argued that procedural fairness did not require that the applicant be given a copy of the complaint and an opportunity to answer it until the complaint had been dealt with. It was also argued that forming the requisite satisfaction under s155(2) was not a decision within the meaning of s156 and s171J and, therefore, the Commissioner was not in breach of his statutory duty by not providing the applicant a copy of the complaint and an opportunity to meet it. It was argued in the alternative the requirements under s156 and s171J had been satisfied either by a letter of formal advice that the Information was filed in the Tribunal, or by a letter and phone call from an employee of the Commissioner outlining the substance of the complaint at the time it was received. The Commissioner also argued that no purpose would be served by requiring him to receive submissions from the applicant and there was less utility in giving more detailed reasons. Held: By Sheller JA, Priestley and Stein JJA agreeing:

As a matter of both general law and statutory construction, the proper performance of the duty and proper exercise of the powers conferred on the Commissioner by s155 required that, before the Commissioner completed the investigation into the complaint against the applicant and decided how the complaint was to be dealt with, the applicant be given a copy of the complaint and an opportunity to answer it. Annetts v McCann (1990) 170 CLR 596 at 598 and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 577 followed. Wentworth v Rogers (1984) 2 NSWLR 422 at 429 and 436, Saffron v DPP (1989) 16 NSWLR 397 at 400, 402 and 411 and Wiseman v Borneman [1971] AC 297 at 320 considered.
The forming of a satisfaction pursuant to s155(2) was a decision within the meaning of s156 and s171J. The Commissioner's formal letter to the applicant notifying him that the Commissioner was satisfied "that there is a reasonable likelihood that you will be found guilty by the Legal Services Tribunal of unsatisfactory professional conduct or professional misconduct" did not satisfy the requirements of s156 and s171J. The Commissioner should, at the least, have explained by reference to the material before him how he came to that conclusion.
The denial of natural justice to the applicant was not negated because there was no material before the Court upon which the it could reach the conclusion that a properly conducted investigation by the Commissioner could not possibly have produced a different result. Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-6 and Kioa v West (1985) 159 CLR 550 at 633 applied. Per Priestley JA, Stein JA agreeing:
The fact that the applicant, having known the features of the case against him, could have made submissions about those matters to the Commissioner if he choose to, does not bar a claim by him that he was denied procedural fairness, because a stage was never reached whereby the complainant could be reasonably sure that he had been told all the relevant details of the complaint, and further, that s.155 requires that the Commissioner give an opportunity to the legal practitioner to be heard in regard to the complaint. Per Stein JA:
As a matter of plain statutory construction of the words appearing in s 155, and in the context of the Act, the legal practitioner is entitled to see a copy of the complaint and have an opportunity to answer it in order to seek to convince the Commissioner that he should not form the opinion under ss (2) or might proceed to reprimand the practitioner or dismiss the complaint under ss (3) or ss (4).

Authorities: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Annetts v McCann (1990) 170 CLR 596 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Baba v Parole Board of NSW (1986) 5 NSWLR 338 Bonaker v Evans (1850) 16 QB 162 Commissioner of Police v Reid (1989) 16 NSWLR 453 Commissioner of Police v Tanos (1958) 98 CLR 383 Cornall v AB (a solicitor) [1995] 1 VR 337 Dennis v The Law Society of NSW (unreported) Court of Appeal, 17 December 1979 Dorman v Riordan (1990) 24 FCR 564 Johns v Australian Securities Commission (1993) 178 CLR 408 Kioa v West (1985) 159 CLR 550 Medical Board of Queensland v Byrne (1958) 100 CLR 582 R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256 Re NSW Bar Association; Ex parte Evatt (1967) 67 SR(NSW) 236 Rees v Crane [1994] 2 AC 173 Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 South Australia v O'Shea (1987) 163 CLR 378 Stead v State Government Insurance Commission (1986) 161 CLR 141 Testro Bros Pty Limited v Tait (1963) 109 CLR 353 Twist v Randwick Municipal Council (1976) 133 CLR 106 Wentworth v Rogers (1984) 2 NSWLR 422 White v Ryde Municipal Council [1977] 2 NSWLR 909 Wiseman v Bornemand [1971] AC 297 ORDERS

A declaration that the decision of the first opponent under the Legal Profession Act s155 (2) to institute proceedings before the second opponent with respect to the complaint against the claimant is void. 2. An order that the decision of the first opponent under the Legal Profession Act s155 (2) to institute proceedings before the second opponent with respect to the complaint against the claimant be quashed. 3. An order prohibiting or otherwise restraining the second opponent from proceeding to conduct a hearing on the Information filed on 4 May 1998 against the claimant in proceedings No 14 of 1998. 4. The first opponent to pay the claimant's costs of the summons. 5. The claimant to pay the first opponent's costs of the application by notice of motion of 19 February 1999.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40377/98 LST 14/98 PRIESTLEY JA SHELLER JA STEIN JA

MURRAY v LEGAL SERVICES COMMISSIONER & ANOR JUDGMENT

1 PRIESTLEY JA: I have had the opportunity of reading in draft the reasons of Sheller JA in these proceedings. I agree with his reasons and the orders he proposes. 2 The Commissioner submitted that the court should in its discretion refuse the relief sought by Mr Murray, on the ground (as I understood the substance of the argument) that Mr Murray had known what the features of the case against him were that the Commissioner was investigating, could have made submissions to the Commissioner about those matters if he chose, and having chosen not to do so, really had no basis for complaining that the procedure used against him was unfair. Acceptance of this argument would have had the virtue of enabling the question whether there was any substance in the charges made by the Information filed in the Tribunal to be examined by the Tribunal without further delay. There were however two obstacles in the way of acceptance of the argument. The first, as appears from the facts narrated in Sheller JA's reasons, was that the stage was never reached where Mr Murray could be reasonably sure that he had been told all the relevant details of the complaint that had been made about him. Although Mr Murray knew a number of features of the complaint, the actions of the Commissioner in never either making available the full terms of the complaint to him or stating with reasonable precision just what it was that he was investigating, left Mr Murray in the position where he was entitled to wait until one or other of those things had happened before making any representations he wished to make to the Commissioner. 3 The second obstacle is that the terms of s155 of the Legal Profession Act 1987 make it clear that after the Commissioner has completed an investigation into a complaint he must consider which of the different possible steps available to him under the section he will next take. In my opinion the section necessarily requires the Commissioner to give an opportunity to the legal practitioner to be heard in regard to the complaint which the Commissioner has investigated, before the Commissioner decides which step to take. In the absence of the legal practitioner's having been given an opportunity to be heard on the complaint I do not see how it is possible for the Commissioner to arrive at a proper decision under s 155 on which step he should take. 4 If Mr Murray had at any stage been told the whole substance of the complaint that had been made against him, I doubt whether he would have been able to make out his claim of procedural unfairness. When the file note of Mr Keher was first put before the court in the circumstances set out by Sheller JA it appeared it might be possible for the Commissioner to show that Mr Murray had been told, more than a year before the filing of the Information in the Tribunal, what the substance of the complaint against him was. However, when Mr Keher was later cross-examined, this possibility disappeared. The situation apparently shown on the correspondence was in fact confirmed by this cross-examination, namely that Mr Murray had never been told the entirety of what it was that the Commissioner was investigating. He knew it in part, and it has turned out that that part was the substance of what the Commissioner was investigating, but he was never told this by the Commissioner and was never to know, until the complaint and ancillary documents were eventually produced in the course of the proceedings, the full extent of what it was that the Commissioner was investigating pursuant to the complaint. 5 Thus, at the conclusion of the proceedings the materials before the court showed that Mr Murray's claim of procedural unfairness was well founded, and he became entitled, in my opinion, to the relief proposed by Sheller JA.

SHELLER JA: INTRODUCTION 6 On 4 May 1998 the first opponent, the Legal Services Commissioner (the Commissioner), filed an Information with the Legal Services Tribunal, the second opponent, informing the Tribunal that, as a result of the Commissioner's investigation of a complaint made under Part 10 of the Legal Profession Act 1987 (the Act) against Craig William Murray, a legal practitioner within the meaning of s128 of the Act, the Commissioner claimed that Mr Murray, while practising as a solicitor, was guilty either of professional misconduct or unsatisfactory professional conduct on grounds that were set out. 7 In these proceedings, which Mr Murray began by a summons filed on 5 June 1998 and subsequently amended by leave of the Court, Mr Murray claimed a declaration that the decision of the Commissioner under s155 (2) of the Act to institute proceedings before the Tribunal with respect to the complaint against him was void. Mr Murray sought consequential relief in the nature of certiorari against the Commissioner and in the nature of prohibition against the Tribunal; s69 of the Supreme Court Act 1970. 8 Mr Murray claimed that the Commissioner had acted in breach of his statutory duty and had denied him procedural fairness in failing during the investigation of the complaint to provide Mr Murray with a copy of the complaint and give him an opportunity to answer it and had thereafter failed to comply with the requirements of ss 156 and 171J of the Act.

HEARING 9 This Court constituted by Priestley JA, Sheller JA and Fitzgerald AJA, as his Honour then was, began hearing the proceedings on 21 October 1988. The hearing continued on 22 October 1988 when the Court reserved its decision. Thereafter, Fitzgerald AJA became aware that Leszek Rajski, the complainant but not a party to the proceedings, had made allegations of actual bias against him. Fitzgerald AJA decided in the circumstances, although he rejected the allegations made against him by Dr Rajski, to take no further part in the case. Thereafter the Court was reconstituted to comprise Priestley JA, Sheller JA and Stein JA and, so reconstituted, re-heard the proceedings, with the agreement of the parties taking account of the fact that Priestley JA and Sheller JA had already heard evidence and argument and that Stein JA had acquainted himself with the material including the transcript of evidence and argument before the Court. The new hearing began on 15 December 1998.

THE ORIGINAL EVIDENCE 10 Mr Murray relied upon the affidavits of Diana Angela Chang sworn on 5 June 1998, David Graham Fairlie sworn on 6 July 1998, Rosemary McDougal sworn on 6 July 1998, to which was annexed a brochure headed "About the Office of the Legal Services Commissioner" (the original brochure), and Bret Walker sworn on 9 July 1998. The original brochure, which the Commissioner was publishing to those interested in 1995, stated that once the decision was taken to investigate a complaint, the Office of Commissioner would inform the lawyer about the substance of the complaint, so that the lawyer was aware of what had been said about her or him, and give the lawyer a chance to respond. The affidavits of Mr Fairlie, Ms McDougal and Mr Walker deposed to the practice of the Law Society Council and the Bar Council in dealing with complaints made against legal practitioners and, in particular, with the practice of affording the legal practitioner an opportunity to respond to the complaint before deciding how to deal with it. The Commissioner objected to these three affidavits on the ground of relevance. The Court read the affidavits but deferred ruling on their relevance. Counsel for the Commissioner cross-examined Mr Fairlie and Ms McDougal. In my opinion, the evidence in the three affidavits objected to was relevant to the way Mr Murray put his argument on legitimate expectation and should be admitted. 11 Ms Chang's affidavit annexed correspondence between the Commissioner and Mr Murray or Mr Pavlakis, the solicitor who first acted for him and Atanaskovic Hartnell, who later acted for him. This correspondence explains the issues in these proceedings. 12 Mr Murray also tendered, without objection, the Annual Report of the Office of the Commissioner for 1996/97, an undated brochure bearing the title "The Office of the Legal Services Commissioner" (the amended brochure) and an affidavit sworn on 1 May 1998 and filed by the Commissioner in the Tribunal. The amended brochure which replaced the original brochure in 1997 omitted the statement that the lawyer would be informed about the substance of the complaint and given a chance to respond. The Commissioner tendered his letter dated 21 March 1997 to Mr Pavlakis of Blake Dawson Waldron (Exhibit 1).

COMPLAINT 13 On 21 February 1997 the Commissioner wrote to Mr Murray stating that he had received a complaint from Dr Rajski "concerning your involvement in negotiations for settlement concerning various parties including Tectran, Raybos, Rajski and others". The Commissioner stated: "You would be aware of the full extent of persons involved in those negotiations. My purpose at this stage in addition to notifying you that I have received the complaint is to advise that I am investigating it. I have not as yet totally summarised the complaint and will provide you with full particulars shortly." 14 The letter proceeded "in brief" to state what the complaint alleged, namely, that Mr Murray was involved in the insertion of improper and unlawful conditions in the settlement deed, specifically that payment under the settlement of the Tectran and Raybos civil litigation was contingent upon termination of criminal charges concerning Mr Moshe Yerushalmy and Mr David Bruce Cowper. It was further alleged that Mr Murray was involved in negotiations resulting in the obtaining of moneys by Allen Allen and Hemsley under the terms of their insurance cover with LawCover, and that the subsequent non-payment of those moneys to the person designated in the claim for insurance constituted a criminal offence under s178A of the Crimes Act 1900 and that the non-payment of those moneys to the Raybos and Rajski interests and the use of those moneys as a lever by Mr Murray's firm in an attempt to have the criminal matters of perjury withdrawn, constituted an attempt to pervert the course of justice and was an offence "under section 344A/319 of the Crimes Act". The letter finished: "I understand that you are aware of the background of the litigation, the negotiations and occurrences subsequent to such negotiations. I will be in touch with you again shortly concerning the particulars of this complaint. Would you kindly acknowledge receipt of this letter at your earliest convenience." 15 On 4 March 1997 Mr Pavlakis replied asking the Commissioner to forward a copy of the written complaint received from Dr Rajski as soon as possible. This crossed with a letter addressed to Mr Murray from the Commissioner dated 27 February 1997 and noting that no acknowledgment had been received from Mr Murray "concerning the matter". The Commissioner went on to say: "I am continuing my investigation into the matter and as part of that investigation require you pursuant to s152 (1) of the Legal Profession Act 1987 to produce to me your files relating to matters outlined in my letter of 21 February 1997. Could you please arrange for delivery of your files to my Office within seven days of the date of this letter." 16 On 5 March 1997 Mr Pavlakis replied referring to the need to consider the provisions of s171S of the Act and to obtain advice and asked for a further period to be allowed to deal with the matters set out in the letter of 27 February 1997. On 10 March 1997 Mr Pavlakis wrote to the Commissioner as follows: "As you would appreciate, another complaint by Mr Rajski involving Mr Nick Carson, also a partner of this firm, is also purported to have been investigated by you. That investigation is subject of proceedings by Mr Carson against you in the Court of Appeal. It cannot be said that the complaint against Mr Carson involving the same complainant and concerning litigation by Mr Rajski, is unrelated to the complaint against Mr Murray. In these circumstances, I invite you to consider whether justice would not be better be seen to be done if the investigation of the complaint against Mr Murray was referred to either an independent investigator or the Council of the Law Society. In any event, I take it that Mr Murray will be given a proper opportunity to respond to matters raised before any decision is made concerning the complaint. I look forward to hearing from you." 17 On 11 March 1997 Mr Pavlakis wrote referring to the requirement for the production of files and proceeded: "We note that we have not received from you a copy of the complaint nor particulars of it. We request again the provision of a copy of the complaint to enable the interested parties to consider their position." 18 On 13 March 1997 the Commissioner wrote to Mr Pavlakis referring to his letters of 10 and 11 March 1997 and saying: "You are advised that for the purpose of complying with the s152 request that you have sufficient information for you to understand the nature of the complaint so that Mr Murray may comply with the requirement made of him in my letter of 27 February 1997. It is noted that you have already requested and received one extension for the production of the file(s) sought. Such extension was for an additional week and now requires you to produce those file(s) by Friday, 14 March 1997. No further extension is anticipated. I take this opportunity to remind you of the provisions of s152 (4) of the Legal Profession Act 1987 ." 19 On 14 March 1997 Mr Pavlakis wrote to the Commissioner pointing out that he had still not received a copy of the complaint. On the basis that the request for documents related to the period from September 1994 a number of documents were produced and legal professional privilege was claimed over other documents which were not produced. Mr Pavlakis advised that further consideration was being given about the documents and stated that documents which would not otherwise be available to Dr Rajski or his advisers in the continuing civil litigation should not, through investigation of the claim, be disclosed to him. Nor should the information in them. On the same date Mr Pavlakis wrote a separate letter to the Commissioner pointing out that no response had been received on the issue of whether the Commissioner should continue the investigation. 20 On 17 March 1997 the Commissioner wrote to Mr Pavlakis about confidentiality and gave an assurance not to show documents which Mr Pavlakis identified as containing confidential and privileged information without further discussions. Concerning the conduct of the investigation the Commissioner wrote: "In your letter of 14 March 1997 you again raised the issue of my Office conducting the investigation in the matter. In your letter you state that 'the production of documents to you in response to your request should not be taken as any waiver of my client in relation to that issue'. I do not consider that your client has any issue in this matter that needs addressing by my Office. My current intention is to continue to investigate the matter." 21 On 19 March 1997 Mr Pavlakis wrote referring to his earlier request for a copy of the complaint and stated: "It seems extraordinary that a complaint in writing being investigated by you is not disclosed to the practitioner the subject of the complaint. This is particularly so, in view of what I understand from Mr Keher to be the usual policy of your office, to provide the complainant or the legal practitioner copies of any material provided by one party to the Commissioner (not the subject of any compulsory requirement for production) and even further, in view of the policy of Part 10 of the Legal Profession Act, to ensure that the rules of natural justice are properly applied. I do not see how a practitioner can adequately rebut matters the subject of the complaint unless the full complaint is made available to him, and made available to him at the earliest possible opportunity." 22 Christopher Anthony Vincent Keher was from 14 August 1995 to 25 July 1997 the Principal Legal Officer employed by the Commissioner. 23 On 19 March 1997 Mr Pavlakis wrote about the privileged documents and the interpretation of s171S. On 21 March 1997 the Commissioner wrote (Exhibit 1) to Mr Pavlakis referring to what he described as his positive duty to keep the complainant informed of the course of the investigation and said: "Should I acquiesce to requests not to disclose communications with my Office when the reasons for non-disclosure are insubstantial, complainants would soon lose confidence in my Office." 24 On 23 May 1997 the Commissioner wrote to Mr Pavlakis stating that he intended to disclose the documents provided on 14 March 1997 to the complainant. However, before disclosure he said he would obscure any figures revealing the contributions made by the parties with respect to the proposed settlement of the litigation. The Commissioner said: "……… I am of the view that it is necessary, in furtherance of my overriding duty to properly investigate this complaint, to disclose the documents to the complainant for his comment. He is the only person, outside Mr Basten QC, who is in a position to provide contemporaneous information with regard to the substance of the complaint." 25 This last sentence involved a misapprehension. Mr Murray also fell into this category. The letter of 23 May drew a response from Mr Pavlakis by letter dated 29 May 1997 which, amongst other things, once more referred to what was described as: "…. the extraordinary position that the complaint in writing by Mr Rajski has not be [sic] disclosed to the practitioner the subject of the complaint. The situation is therefore that you refuse to provide the practitioner the subject of the complaint with a copy of the complaint in writing by Mr Rajski, and yet, deem it necessary for the proper investigation of this complaint, to disclose documents to Mr Rajski provided under compulsion in circumstances where no explanation is given as to how Mr Rajski may assist in the investigation by reviewing such documents." 26 The objection to production of the documents to Dr Rajski was maintained. On 5 June 1997 the Commissioner wrote saying that he had determined to disclose the documents to the complainant for the proper investigation of the complaint and therefore for the purposes of the administration of the Act. Thereafter, there was no further communication between the Commissioner and Mr Murray until 4 May 1998. The Commissioner did not provide Mr Murray with further particulars or a copy of the complaint nor did he offer Mr Murray an opportunity to answer the complaint.

INSTITUTION OF PROCEEDINGS IN THE TRIBUNAL 27 On 4 May 1998 the Commissioner wrote formally advising that as a result of his investigations into the complaint, he had determined to institute proceedings against Mr Murray in the Tribunal in terms of the Information and particulars, which were served with the letter, "as I am satisfied that there is a reasonable likelihood that you will be found guilty by the Legal Services Tribunal of unsatisfactory professional conduct or professional misconduct." 28 The grounds of the Information were: "Ground 1 The legal practitioner, on behalf of the Tectran interests, was involved in the insertion and maintenance of improper terms in the terms of settlement of the Tectran and Raybos civil litigation, those improper terms making payment of the settlement monies contingent upon the termination of the criminal proceedings. Ground 2 The legal practitioner, on behalf of the Tectran interests, together with Mr Ball, on behalf of [Allen Allen and Hemsley] used the settlement monies together with interest on those settlement monies to put improper pressure upon [Dr Rajski], the Complainant in the criminal proceedings, to seek the termination of the criminal proceedings." Particulars were set out in the first schedule. 29 On 15 May 1998 Atanaskovic Hartnell, who were now acting for Mr Murray, wrote to the Tribunal seeking an extension of time for filing a reply and enclosed a copy of their letter and sent it to the Commissioner. The extension of time was granted. 30 The Commissioner's affidavit of 1 May 1998, a copy of which Mr Murray tendered, was served with the letter of 4 May 1998. That affidavit stated that the Information arose from a complaint made by Dr Rajski by letter dated 20 February 1997, but did not annex the complaint. The Commissioner deposed that, in February 1997 following receipt of the complaint, he appointed an investigator under s132 (3) of the Act to investigate the complaint. Exhibited with the affidavit were fifty-five documents which the Commissioner said he intended to tender in evidence at the hearing being the documents referred to in the particulars (and footnotes) of the Information. Of those fifty-five documents at least ten had come from sources other than Mr Murray.

FURTHER EVIDENCE 31 At the start of the re-hearing of the proceedings on 15 December 1998 Mr Haylen QC, who appeared for the Commissioner, said that he wished to rely on an affidavit of Phillip John Kellow sworn on 11 December 1998 to which was annexed a file note which Mr Kellow said, to the best of his information and belief, recorded the effect of a telephone conversation between Mr Keher and Mr Murray on 21 February, 1997. Mr Brereton SC, who appeared for Mr Murray, objected. The Court decided to permit the affidavit to be filed and read and the annexure to become evidence if and only if certain conditions were fulfilled. One condition was that the Commissioner's file called "C Murray Complaint by Rajski" be made available for inspection by Mr Murray and another that the Commissioner use his best endeavours to have an affidavit sworn by Mr Keher setting out his evidence and filed no later than fourteen days before the date to be fixed for the further hearing of the proceedings and to have Mr Keher available for cross-examination on his affidavit at the further hearing. 32 The production of this material necessitated a further adjournment, although, to make use of the time set aside, argument continued on 15 December 1998. The resumption of the proceedings was fixed for 3 March 1999. However, on 25 February 1999 the Court considered an application by Mr Murray for the Commissioner to produce documents. That application was stood over to 3 March 1999 when it was dismissed. The Court said it would give reasons later. 33 On 3 March 1999 Mr Haylen announced that he did not intend to read Mr Kellow's affidavit of 11 December 1998 but would rely on an affidavit of Mr Keher of 12 February 1999. Mr Brereton objected to this affidavit on the grounds that the probative value of the affidavit was substantially outweighed by the danger that the evidence might be unfairly prejudicial to Mr Murray, misleading or confusing, or cause or result in undue waste of time; s135 of the Evidence Act 1995 (the Evidence Act). The Court allowed the affidavit to be read. Mr Keher gave oral evidence and was cross-examined. 34 Annexed to Mr Keher's affidavit was a document described as "a copy of a complaint made to the LSC by Leszek Rajski by letter dated 20 February 1997 ('the complaint')". Mr Keher deposed: "In support of the complaint was attached a statement of Mr Rajski dated 8 July 1996 with annexures thereto." 35 The letter of 20 February 1997 annexed, omitting formal parts, read as follows: "CW Murray of BDW and M Ball of AAH Enclosed hereto is the complaint book (103 pages) against the abovenamed solicitors. I request you to investigate this matter." 36 The next page of the annexure which was, apparently, in Dr Rajski's writing and headed "Index", continued as follows: "1. Description of the complaint pages 1 - 5. 2. L Rajski statement dated 8 July 1996 together with annexures B1 to R, pages 6 - 98. 3. J Basten QC memorandum 17 December 1996, page 99. 4. Tectran 1995 Annual Return, pages 100 - 103." 37 The documents pages 1 - 5, the first item in the index, were typewritten and followed as part of the annexure. They consisted of seventeen numbered paragraphs the last of which ended with a "SUMMARY OF EVIDENCE" followed by material under six headings: "(i) Background leading up to the in-principle agreement of 16 September 1994. (ii) In-principle agreement of 16 September 1994. (iii) Bulk of the settlement monies came from AAH insurers - no conditions attaching to the law cover payment(s). (iv) Account opened and the settlement monies deposited in name Blake Dawson Waldron. (v) Payment of settlement used as improper/unlawful mechanism to remove the criminal proceedings. (vi) Evidence concerning likelihood of success in perjury matters." 38 Under each of these headings were detailed references to the material described in the second item of the index as the "L Rajski statement dated 8 July 1996 together with annexures B1 to R, pages 6 - 98". None of the material after page 6 was annexed to the affidavit. However, Dr Rajski's letter of 20 February 1997 and the attached complaint book were made available by the Commissioner in compliance with the conditions the Court imposed on 15 December 1998 and Mr Brereton tendered a copy of pages 6 - 103 which became exhibit E. 39 Mr Keher's affidavit continued by annexing his handwritten file note dated 21 February 1992 which he deposed recorded "the effect of a telephone conversation between myself and the claimant on 21 February 1997." The file note was: "(Attending) Craig Murray advised him I was phoning as a courtesy call to advise him that a complaint had been lodged against him & did he want it faxed/picked up etc. I read out details at his request. Said it was all a load of rubbish. Preferred if it was just sent by DX Monday." 40 Paragraph 4 of Mr Keher's affidavit was as follows: "On 21 February 1997 I telephoned the Claimant and advised him that the complaint had been lodged against him by Mr Rajski. At the Claimant's request I read the letter of 20 February 1997 referred to in paragraph 2 and then commenced reading the complaint to him starting at paragraph 1 of annexure 'A' hereto. I do not recall precisely how much I read to the Claimant but I was reading the complaint to him for a period of time when he interjected and said: 'it is all a load of rubbish. I would prefer if you would send to me through the DX'." 41 Mr Keher went on to depose that on 21 February 1997, following the conversation, he wrote over the name of the Commissioner and forwarded to Mr Murray the letter of that date to which reference has already been made. 42 Mr Keher gave oral evidence and was cross-examined. He gave his evidence frankly and there is no reason not to believe what he said. At times he was unable to recall particular matters about which he was asked. He agreed that his recollection of all of the events dealing with the investigation of the complaint to the extent that he was involved in it was vague. Asked the reason for this he said: "One is it's two years ago and there were many complaints that Dr Rajski was - or several complaints that Dr Rajski was involved in and in this particular matter the Commissioner had most of the dealings with Dr Rajski and also in relation to the matter itself and when he was not dealing with it Martin Blackmore had most of the dealings with the matter." 43 He could not explain why there was not a single note by the Commissioner himself in the file except for an initial conversation with Dr Rajski on 20 February. 44 Mr Keher was not re-examined. I summarise what relevantly emerged from the cross-examination. 45 (a) Martin Blackmore, Junior Counsel for the Commissioner in the proceedings, Legal Services Commission v Carson, was the investigator appointed by the Commissioner pursuant to s132 (3) of the Act. Mr Blackmore had in fact spent many months full time settling the Information against Mr Carson and liaising with Dr Rajski on that subject. In his letters of 10 and 14 March 1997 Mr Pavlakis had raised with the Commissioner a concern that because of the Commissioner's investigation of the complaint by Dr Rajski against Mr Carson, justice might better be seen to be done if the investigation of the complaint against Mr Murray were referred to an independent investigator or the Council of the Law Society. Asked why, in those circumstances, he wrote a letter to Mr Pavlakis on 17 March 1997 stating: "I do not consider that your client has any issue in this matter that needs addressing by my Office." Mr Keher said: "Because that is what would have been instructed to have been written by the Commissioner." "Q. The Commissioner would have instructed you to write that, would he? A. That's correct. Q. Did you give any thought to the propriety of what you were writing? A. This was a response that was put together for the purposes of addressing those issues and that's what the Commissioner's decision was." After this evidence was given Mr Brereton applied to add to the amended summons a further ground that the investigation and decision by the Commissioner under s155 (2) of the Act to institute proceedings before the Tribunal with respect to the complaint against Mr Murray was affected by ostensible bias. The Court refused leave to make this amendment. 46 (b) When Mr Keher wrote the letter of 21 February 1997 it was his intention to provide Mr Murray with substantially more detail of the complaint which he never did. Asked why, he replied: "I understand that the Commissioner decided not to." a conclusion he inferred from the fact that full particulars were not supplied. He gave the following answers in cross-examination: "Q. But did you ever tell anyone, Mr Murray or anyone on his behalf, that you weren't going to provide any further particulars? A. Not that I can recall, no. Q. Why not? A. Because that was a decision of the Commissioner. Q. So as you understand it, it was a decision of the Commissioner not to provide further particulars, and not to tell Mr Murray that further particulars were not to be provided? A. I don't know that it was the second part, but I think that it is correct the first part, yes. Q. Similarly, so far as you can recall, you never provided the original complaint, or a copy of the complaint to Mr Murray or anyone on his behalf? A. That's correct. Q. And for the same reasons. A. I believe so." 47 (c) By 14 March 1997 Mr Keher understood that Mr Pavlakis still wanted to see a copy of Dr Rajski's complaint. By the time Mr Keher left the Commissioner's service in July 1997 nothing had happened to convey that that desire of Mr Pavlakis had ceased. 48 (d) On 17 March 1997 Mr Keher spoke to Mr Pavlakis who raised the issue of not having the complaint book and said they were entitled to it. Mr Keher pointed out that there were aspects of it which might not be available to them as it was part of the police brief. Mr Pavlakis requested that "we give further consideration to this from natural justice perspective." Mr Keher said he would "run it by Steve (the Commissioner)". He believed he would have put it before the Commissioner but did not know or had no recollection of the Commissioner giving any direction as to whether or not the complaint book was to be provided to Mr Murray. 49 (e) Mr Keher conceded that it was a possibility that what he read to Mr Murray during the telephone conversation of 21 February 1997 was not from the complaint but from the letter which he had prepared and which he caused to be sent on that date. He said he had no recollection of what he said. In swearing his affidavit he relied on his file note and the words that had been put in the draft by the Crown Solicitor. According to the file Mr Keher telephoned Mr Murray to advise him the complaint had been lodged against him and to ask him whether he wanted "it faxed/picked up etc". Mr Keher then read out "details" which may have been taken from the terms of the letter that was to be sent. Mr Murray preferred that "it", ie the complaint, be sent by DX on the Monday. This, apparently, was quite deliberately not done. 50 After further submissions on 3 March 1999 the Court reserved its decision.

LEGISLATIVE PROVISIONS 51 Section 155 of the Act provides: "Decision after investigation of complaint (1) After a Council or the Commissioner has completed an investigation into a complaint against a legal practitioner or interstate legal practitioner, the complaint is to be dealt with in accordance with this section. (2) The Council or the Commissioner must institute proceedings in the Tribunal with respect to the complaint against the legal practitioner or interstate legal practitioner if satisfied that there is a reasonable likelihood that the legal practitioner or interstate legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct. (3) However, if the Council or the Commissioner is satisfied that there is a reasonable likelihood that the legal practitioner or interstate legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct (but not professional misconduct), the Council or the Commissioner may instead: (a) reprimand the legal practitioner or interstate legal practitioner if the legal practitioner or interstate legal practitioner consents to the reprimand, or (b) dismiss the complaint if satisfied that the legal practitioner or interstate legal practitioner is generally competent and diligent and that no other material complaints have been made against the legal practitioner or interstate legal practitioner. (4) The Council or the Commissioner is to dismiss the complaint against the legal practitioner or interstate legal practitioner if satisfied that there is no reasonable likelihood that the legal practitioner or interstate legal practitioner will be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct. (5) If a Council or the Commissioner decides to dismiss a complaint or to reprimand a legal practitioner or interstate legal practitioner under subsection (3) and the complainant requested a compensation order in connection with the complaint, the Council or the Commissioner may require the payment of compensation by the legal practitioner or interstate legal practitioner or the successful mediation of the consumer dispute before the decision takes effect." 52 Section 156 of the Act provides: "Record of decision after investigation of complaint A Council or the Commissioner must cause a record of its decision with respect to a complaint, together with the reasons for the decision, to be kept in respect of each investigation conducted under this Division." 53 Section 171J of the Act provides: "Notification of decisions of Council or Commissioner (1) A Council or the Commissioner must cause the decision with respect to a complaint, together with the reasons for the decision, to be notified in writing to the complainant and to the legal practitioner or interstate legal practitioner against whom the complaint was made. (2) In the case of a decision of a Council to dismiss the complaint or reprimand the legal practitioner or interstate legal practitioner, the right of the complainant to apply to the Commissioner for a review of the decision must also be included in the notice to the complainant. (3) A notice to a complainant is not required under this section if the complaint was made by the Commissioner or a Council." 54 Mr Murray submitted that the Commissioner instituted the proceedings by Information in the Tribunal without having first recorded his decision and the reasons for it as required by s156 and without having notified Mr Murray of his decision to do so and the reasons for it as required by s171J. Factually, the Commissioner did not deny this beyond submitting that the terms of his letter to Mr Murray of 4 May 1998 met the requirement in s171J to cause the decision with respect to a complaint, together with the reasons for the decision, to be notified in writing to the complainant. 55 Sections 124 and 125 of the Act are in the preliminary Division 1 of Pt 10, which is headed "Complaints and discipline". Section 124 states the objects of Pt 10 relating to the users of legal services. Section 125 states the objects of Pt 10 relating to the providers of legal services of which the first is: "(a) to ensure that the rules of natural justice (being rules for procedural fairness) are applied to any disciplinary proceedings taken against legal practitioners and interstate legal practitioners;" 56 Mr Murray submitted that the Commissioner by failing to provide Mr Murray with a copy of the complaint and give him an opportunity to respond to it before instituting proceedings in the Tribunal was guilty of a denial of procedural fairness to him; Carroll v Sydney County Council (1989) 15 NSWLR 541 at 548-550. In part, Mr Murray relied upon a legitimate expectation based on the previous practice of the Bar Council, of the Law Society Council and of the Commissioner in dealing with complaints, on the terms of the correspondence in which the Commissioner on 21 February 1997 offered to provide Mr Murray with full particulars of the complaint "shortly" and on the Commissioner's failure to traverse Mr Pavlakis' statement addressed to him on 10 March 1997: "In any event, I take it that Mr Murray will be given a proper opportunity to respond to matters raised before any decision is made concerning the complaint."

REASONS FOR DISMISSING MR MURRAY'S APPLICATION FOR THE PRODUCTION OF DOCUMENTS 57 Section 171R of the Act provides: "(1) A person referred to in section 171Q [the Commissioner is one such] is not compellable in any legal proceedings (including proceedings before the Tribunal) to give evidence or produce documents in respect of any matter in which the person was involved in the course of the administration of this Part. (2) This section does not apply to proceedings under Part 3 of the Royal Commissions Act 1923 or before the Independent Commission Against Corruption." 58 The Commissioner relied upon this section to resist the production to Mr Murray of six documents from the file "C Murray - Complaint by Rajski". The documents were described in annexures to Mr Kellow's affidavit of 25 February 1999 as "Internal memoranda and administrative documents of the Office of the Legal Services Commissioner 4. Draft letter from Commissioner to John Pavlakis, Blake Dawson Waldron dated 21 April 1997. 5. Further draft letter from Commissioner to John Pavlakis, Blake Dawson Waldron dated 21 April 1997. 6. File note recording conversations between Chris Keher, OLSC and Commissioner (undated). Correspondence and notes of telephone conversations between officers of the OLSC and the complainant 14. Letter from Commissioner to complainant dated 8 October 1997. 15. Note of conversation between Commissioner and complainant dated 20 February 1997. Notes of confidential telephone conversations between officers of the OLSC and third parties 16. Note of conversation between Commissioner and Eric Grimmond, Fraud Enforcement Agency dated 19 February 1997." 59 In respect of the documents 4,5, 6, 15 and 16 in addition to s117R the Commissioner relied upon either s118 or s119 of the Evidence Act. On 25 February 1999 and 3 March 1999 the question of whether the Commissioner was bound to produce these six documents was argued on Mr Murray's notice of motion. The Court held that the Commissioner was entitled to resist production of these six documents in reliance upon s171R and it was therefore unnecessary to consider whether in respect of five of them he was also entitled to rely upon the provisions of the Evidence Act. 60 Mr Murray submitted that once the Commissioner had elected to give evidence he could not decide which questions to answer or which documents to produce in reliance on s171R. Counsel relied on R v Adams (1965) VR 563. The Full Court of the Supreme Court of Victoria held that an accused person who had elected, on his trial, to give evidence on oath under s399 of the Crimes Act 1958 (Vic) could be asked and was obliged to answer any question which was relevant to any issue before the Court and any question which might go to his credit and could be compelled to produce relevant documents which were in his custody or under his control. 61 In addition, Mr Brereton relied upon the principle of fairness adumbrated in Attorney General for the Northern Territory v Maurice & Ors (1986) 161 CLR 475. That case concerned the circumstances in which a person might be said to have waived legal professional privilege. There being no actual intention to waive privilege in particular documents, Gibbs CJ at 481 said: "whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production." At 487-8 Mason and Brennan JJ said: "An implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege. The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication. Professor Wigmore explains: '[W]hen his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.' (Wigmore, Evidence in Trials at Common Law (1961), Vol 8, para 2327, p636) In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject matter: see Greater Atlantic Assurance Co v Home Insurance Co (1981) 1 WLR 529. Hence, the imputed waiver inquiry is at bottom focused on the fairness of imputing such a waiver." See also per Deane J at 492-3 and per Dawson J at 497-8. 62 The six documents production of which was resisted do not appear to me to be related to any material relied upon by the Commissioner in these proceedings, namely his letter of 21 March 1997 dealing with his duty to keep the complainant informed of the course of the investigation and the conversation between Mr Keher and Mr Murray advising Mr Murray that the complaint had been lodged against him and telling him about that complaint. I am not persuaded that the Commissioner's refusal to allow Mr Murray inspection of the six documents gives rise to any unfairness in the conduct of the proceedings before this Court. The six documents are not referred to in any of the material before the Court in the proceedings. Accordingly, assuming, if the Commissioner is properly to administer the Act, (compare s171P (c) of the Act) that he can waive the protection conferred by s171R, he has not waived that protection in respect of the six documents and s171R means that he is not compelled to produce them in these proceedings. 63 Had there been a document connected by reference or subject matter to Mr Keher's telephone conversation with Mr Murray of 21 February 1997 or the letter sent as the result of it or the terms of the complaint, the subject of the conversation, there would be much to be said for the proposition that as a matter of fairness the Court would not permit the Commissioner on the one hand to rely on the file note and on the other to call in aid s171R to refuse to produce that related or connected material. I do not accept that, simply by calling evidence, the Commissioner waives his right to rely on s171R or should in fairness be required to produce all the other documents in his file. So to hold would ignore the plain language of s171R. It is quite different to say that if the Commissioner wishes to rely upon documents that he cannot be compelled to produce, he should not be permitted to do so in an unfair way by relying on the section not to produce other documents which touch upon the same matter. 64 No doubt the legislature intended that where the Commissioner has begun proceedings pursuant to the Act his reliance on s171R should be a fair and reasonable reliance which does not interfere with the a just and fair hearing of the proceedings he has instituted. There is nothing to suggest that he has acted otherwise in respect of the particular documents the production of which he here resisted. Accordingly, the Court upheld his claim not to produce the documents. For that reason it was unnecessary to say anything about the Commissioner's separate claim to privilege under the Evidence Act for five of the six documents. 65 Although the Commissioner successfully resisted a claim to the production of six documents, Mr Murray's application to the Court for production was, it seems, provoked by the Commissioner's refusal to produce a significantly greater number of documents. See the letter from the Crown Solicitor's Office to Mr Murray's solicitors dated 11 February 1999, eight days before Mr Murray's application was filed. Mr Kellow's affidavit of 25 February 1999 listed seventeen documents the production of which was resisted. Ultimately, discussion between the parties reduced this number to six. Argument was directed to whether or not the Commissioner could be compelled to produce these six documents. On that argument Mr Murray failed and I think accordingly should pay the Commissioner's costs of the application.

PROCEDURAL FAIRNESS DURING THE INVESTIGATION OF COMPLAINTS 66 Section 125 (a) of the Act expresses what otherwise would be implied that the claimant should be accorded procedural fairness throughout "any disciplinary proceedings" taken against him. The question is what the dictates of fairness require during the time when the Commissioner is investigating a complaint against a legal practitioner. On the one hand, Mr Murray relied on the requirements for procedural fairness set out in such cases as Annetts v McCann (1990) 170 CLR 596 at 598 and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 577, 578 and 591-2 to submit that he was entitled to a copy of the complaint and an opportunity to answer it. On the other hand, the Commissioner relied upon Re NSW Bar Association; Ex parte Evatt (1967) 67 SR (NSW) 236 and Dennis v The Law Society of New South Wales (unreported) Court of Appeal, 17 December 1979 to argue that before the complaint was dealt with he was not so entitled. 67 In Commissioner of Police v Tanos (1958) 98 CLR 383 at 395-6 Dixon CJ and Webb J remarked: "For it is a deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard. In Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180; 143 ER 414, Byles J said that a long course of authority established 'that, although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature' at 194; 420. The older authorities ever recur to the lines from Seneca's Medea which apparently were introduced into the subject by Boswel's Case (1583) 6 Co Rep 48b at 52a; 77 ER 326 at 331: Quicunque aliquid statuerit, parte inaudita altera, Aequum licet statuerit, haud aequus fuerit; cf Bonaker v Evans (1850) 16 QB 162 at 171; 117 ER 840 at 844; In re Hammersmith Rent-Charge (1849) 4 Ex 87 at 97; 154 ER 1136 at 1140. The general principle has been restated in this Court with a citation of authority in Delta Properties Pty Limited v Brisbane City Council (1955) 95 CLR 11 at 18. It is hardly necessary to add that its application to proceedings in the established courts is a matter of course. But the rule is subject to a sufficient indication of an intention of the legislature to the contrary. Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment." 68 The Latin quotation, which means that any person who decides any matter without hearing both sides, though that person may have rightly decided, has not done justice (what Baron Parke called in Bonaker v Evans at 172 and 844 a 'great principle of justice'), expresses one aspect of the proposition of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done; R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256 at 259. 69 In Annetts Mason CJ, Deane and McHugh JJ, citing the judgment of Dixon CJ and Webb J, said at 598: "It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment." 70 Their Honours pointed out that the intention of the legislature is not to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice: Baba v Parole Board of New South Wales (1986) 5 NSWLR 338 at 344-5, 347 and 349. At 600 their Honours said that it was beyond argument that the view of the majority in Testro Bros Pty Limited v Tait (1963) 109 CLR 353 at 363 would not prevail today. 71 In Ainsworth at 576-7 Mason CJ, Dawson, Toohey and Gaudron JJ said: "It was held in Testro Bros that procedural fairness was not required in an investigation conducted by an inspector under the Companies Act 1961 (Vic), because it was not 'in the nature of a judicial proceeding in which the rights of the company …. being investigated may be prejudicially affected by a report made to the Minister', at 363. However, it was said in Annetts that the view of the majority in that case would not prevail today. It is now clear that a duty of procedural fairness arises, if at all, because the power involved is one which may 'destroy, defeat or prejudice a person's rights, interests or legitimate expectations'. Thus, what is decisive is the nature of the power, not the character of the proceeding which attends its exercise. That is not to deny that provision may be made permitting or requiring procedures which are wholly inconsistent with a requirement of procedural fairness. However, Testro Bros was not concerned with provisions of that kind, and thus, so far as the decision in that case was based on the character of the proceedings, it is inconsistent with the law as it has developed since the decision in Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 and since the decision of this Court in Kioa v West (1985) 159 CLR 550. In this regard, it is sufficient to note that it was held in In re Pergamon Press Limited [1971] Ch 388 and in Mahon v Air New Zealand [1984] AC 308 that the investigative powers considered in those cases attracted a duty to act fairly. And the decision of this Court in National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 proceeds on the same basis. However, that case was concerned with the content of a statutory duty, rather than whether there was a duty of fairness under the general law." 72 In this case the question is whether the content of the Commissioner's statutory duty and powers or the general law required that he provide Mr Murray with a copy of the complaint and give him the opportunity to answer it, absent exclusory and plain words of necessary intendment, before he reached any state of satisfaction or made any decision to institute proceedings in the Tribunal pursuant to s155 (2) of the Act or made any other decision under s155. If this should be answered by reference to the dictates of the general law it depends upon whether the Commissioner's duty or power under the section can be characterised as one the performance or exercise of which might destroy, defeat or prejudice the legal practitioner's rights, interests or legitimate expectations. 73 The Full Court of the Supreme Court in Ex parte Evatt at 235 dismissed a contention that a barrister should be given an opportunity to be heard during an inquiry before the Bar Council in part, at least, on the basis that an inquiry and report was not something which determined any question affecting the rights of the barrister, whether a member of the Association or not, or of the applicant for admission, with respect to whom the inquiry was made. The Court referred to Testro Bros. The Court did not address the contention in the way the requirements of procedural fairness now dictate. The emphasis, as in Testro Bros, was on the character of the proceeding and its effect on the rights of the complainant. 74 In Dennis, Moffit P, with whom Glass and Reynolds JJA agreed, in considering if a solicitor should have been given an opportunity to be heard on whether his practising certificate should be cancelled, reached the conclusion that the governing Act provided its own scheme to have the rights of a solicitor fairly dealt with and in particular to enable the solicitor to be heard on the question of interference with his right to practice before that right could in any practical sense be interfered with. This was a reference back to what Reynolds JA had said in White v Ryde Municipal Council [1977] 2 NSWLR 909 at 925 when observing that "the total procedure was devised to ensure that the appellant would be heard before he was adversely affected in a real and practical sense……" and "regard should be had to the realities of the situation, and not to the legalities, when dealing with the question of what fairness demanded in the circumstances". 75 In the particular case, Moffit P concluded that the legislative intent was to provide an administrative decision by the Council on the question whether a certificate should be cancelled with a right of the solicitor to " 'appeal' against this decision and have an original judicial proceeding into whether the certificate should be cancelled." Again in this case the Court emphasised the character of the proceedings looked at in a "real" way rather than the nature of the power, in that case, to cancel a practising certificate. With due respect to the Commissioner's submissions, I do not think that In re Evatt or Dennis' case can be applied to answer Mr Murray's contentions. 76 The Commissioner also relied upon Cornall v AB (a solicitor) [1995] 1 VR 337 at 372, a decision of the Supreme Court of Victoria Appeal Division. That case concerned the investigation by the Secretary of the Law Institute of complaints against a solicitor. The legislative scheme applicable provided that where, after completing the investigation and "considering any explanation made by a solicitor", the secretary was of opinion that there appeared to have been misconduct or a standards breach, he might do one of a number of things including cancelling or suspending the solicitor's practising certificate, subject to the opportunity available to the solicitor upon receipt of a notice setting out the grounds upon which it was proposed to cancel his certificate, to have the matter referred to the Solicitors Board. At 393-4 the Court cited Annetts, Ainsworth and Johns v Australian Securities Commission (1993) 178 CLR 408 and pointed out, as those three cases reiterated, "it has long been accepted that reputation is an interest attracting the protection of the rules of natural justice". 77 For the purposes in hand, the Court assumed that there was a risk that the solicitor's reputation might be affected once the secretary had formed the required opinion and said, at 394, that "the real question is whether, in those circumstances and having regard to the nature of the legislative scheme, procedural fairness was required before the secretary reached the opinion that there appeared to have been misconduct". 78 At 395 addressing the solicitor's argument that those entrusted with investigative duties ought to be subject to the obligation to afford procedural fairness, certainly in circumstances where the outcome of their investigation may directly or indirectly affect the reputation of the person investigated, their Honours said: "We would agree that investigators may in certain circumstances be subject to that obligation but we would not agree that such an obligation applies in every case, even where reputation may be affected." 79 Of the cases referred to, the Court said that they were special cases, where the outcome of the investigation and the recommendations made or opinions formed by the investigators were either final in the process thereby undertaken or led to immediate consequences of such importance to the individual investigated that the investigating body was obliged to afford procedural fairness. After reviewing such cases as Ainsworth, Johns, South Australia v O'Shea (1987) 163 CLR 378 at 389, Twist v Randwick Municipal Council (1976) 133 CLR 106, Medical Board of Queensland v Byrne (1958) 100 CLR 582 and Commissioner of Police v Reid (1989) 16 NSWLR 453 at 461 the Appeal Division at 400 said: "Of course, every statute must be looked at individually and there may be circumstances in which the language of a statute will require, for certain special reasons, some further opportunity to be heard before a prosecution or disciplinary proceeding is launched. Such a case was Rees v Crane [1994] 2 AC 173, but the nature and effect of the decision reached was so different from that presently under consideration that it can clearly be distinguished. Moreover, to adopt Mason J's description in Twist's case, the 'efficiency of the administrative process' in considering the many complaints brought before the Secretary of the Institute must have a 'countervailing' effect in permitting the conclusion to be reached that the proper stage for affording procedural fairness in the present case is at the stage where the matter has been referred for hearing before registrar or board. For those reasons we would conclude that no intention is evinced by the provisions of s38Q and Part III A that solicitors should be given the right to be heard before a matter is referred by the secretary." 80 In Rees v Crane [1994] 2 AC 173 which concerned a three stage process before the removal of a judge from office, Lord Slynn of Hadley, who gave the judgment of the Privy Council, said at 191-2: "It is clear from the English and Commonwealth decisions which have been cited that there are many situations in which natural justice does not require that a person must be told of the complaints made against him and given a chance to answer them at the particular stage in question. Essential features leading the courts to this conclusion have included the fact that the investigation is purely preliminary, that there will be a full chance adequately to deal with the complaints later, that the making of the inquiry without observing the audi alteram partem maxim is justified by urgency or administrative necessity, that no penalty or serious damage to reputation is inflicted by proceeding to the next stage without such preliminary notice, that the statutory scheme properly construed excludes such a right to know and to reply at the earlier stage. But their Lordships' opinion there is no absolute rule to this effect even if there is to be, under the procedure, an opportunity to answer the charges later. As Professor de Smith puts it in de Smith's Judicial Review of Administrative Action, 4th ed (1980), p 199: 'Where an act or proposal is only the first step in a sequence of measures which may culminate in a decision detrimental to a person's interests, the courts will generally decline to accede to that person's submission that he is entitled to be heard in opposition to this initial act, particularly if he is entitled to be heard at a later stage.' (Emphasis added) In considering whether this general practice should be followed the courts should not be bound by rigid rules."

NATURE OF THE COMMISSION'S DUTY OR POWER 81 The nature of the duty or powers performed or exercised by the Commissioner pursuant to s155 and the requirements of s156 and 171J, in the context of Pt 10 of the Act as a whole, must be looked at. The starting point is s125 (a) which states that the application of rules for procedural fairness to any disciplinary proceedings taken against legal practitioners is an object of the Part relating to the providers of legal services. The Commissioner submitted that this paragraph did not apply until proceedings were instituted in the Tribunal. 82 "Disciplinary proceedings" are not defined and the expression is used elsewhere in the Act though not invariably to describe proceedings in the Tribunal; compare ss131 (h) and 155 (2). One of the objects in s124 of Pt 10 relating to the users of legal services is: "(f) to ensure that complainants receive adequate notice of the institution and status of disciplinary proceedings at relevant stages of the proceedings (including notice of the dismissal of complaints and the reasons for the dismissal)." [my emphasis] 83 Section 171L provides: "(1) The informant in disciplinary proceedings in the Tribunal must cause the complainant to be notified in writing of the date set down by the Tribunal for hearing the matter and of the determination of the Tribunal. [my emphasis] (2) This section does not apply to disciplinary proceedings to which the complainant is a party." [my emphasis] 84 Clause 38 of Schedule 8, which contains the savings and transitional provisions, provides that the regulations made under cl 1A may make provision "for or with respect to complaints and disciplinary proceedings pending on the commencement of this clause and to orders made in those proceedings or in any such proceedings completed before that commencement." [my emphasis] The expression "disciplinary proceedings" is also used in a note to cl 37 of the savings and transitional provisions. 85 The expressions "disciplinary processes" (note to s48Q (2) (a)), "disciplinary action" (for example, s48Q (2) (b)), "disciplinary matters" (s48W heading) and "disciplinary system" (s131 (1) (k)) are also used. These references support a conclusion that "disciplinary proceedings" is intended to mean proceedings before the Tribunal. On the other hand s124 (f) gives some support to the conclusion that, since, under s155 (3), a Council or the Commissioner may dismiss a complaint, the expression has a wider meaning. However, for present purposes, I proceed on the basis that s125 (a) is directed only to proceedings before the Tribunal. 86 Division 3 of Pt 10 provides for the making of complaints about legal practitioners and their summary dismissal by the Commissioner; s141. If a complaint is not summarily dismissed, the next stage is its investigation under Div 5, either by the Bar Council or the Law Society Council or the Commissioner. Section 152 provides that for the purpose of investigating a complaint a Council or the Commissioner may, by notice in writing served on any legal practitioner, require the legal practitioner to do any one or more of the following: (a) to provide written information, by a date specified in the notice, and to verify the information by statutory declaration, (b) to produce, at a time and place specified in the notice, any document (or a copy of any document) specified in the notice, (c) to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner. 87 Section 155 sets out how the complaint is to be dealt with once the investigation by the Council or the Commissioner has been completed. The section forms the link between the complaint and the further stage of proceedings in the Tribunal under Div 8; s167. Section 155 (2) imposes upon the Council or the Commissioner the obligation to institute proceedings in the Tribunal with respect to the complaint against the legal practitioner "if satisfied that there is a reasonable likelihood that the legal practitioner …… will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct." Section 127 (1) defines "professional misconduct" to include: "(a) unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence", and s127 (2) defines "unsatisfactory professional conduct" to include "conduct (whether consisting of an act or omission) occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner ….". 88 I find it hard to imagine that the Council or the Commissioner would reach the level of satisfaction required without taking account of the legal practitioner's response to the complaint if the legal practitioner, under compulsion pursuant to s152, or voluntarily, gave it. The duty of the Council or the Commissioner to act either by instituting proceedings in the Tribunal or in some other way does not arise on a satisfaction or opinion that a prima facie case had been made out, so that any material favouring the legal practitioner may be ignored; compare Wentworth v Rogers (1984) 2 NSWLR 422 at 429 and 436. The duty of the Council or the Commissioner involves an attempt to predict the outcome of a hearing in the Tribunal; compare Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 at 400, 402 and 411. Ordinarily, a factor in this prediction would be the legal practitioner's answer to the complaint, if the legal practitioner gives one, or the failure to answer the complaint, if the legal practitioner gives none. These matters lead me to conclude that a Council or the Commissioner cannot and does not reach the required satisfaction without providing the legal practitioner with a copy of the complaint and calling upon the legal practitioner to respond to it. Proper performance of the Commissioner's duty preserves, in the words of Lord Slynn of Hadley, the legal practitioner's "right to know and to reply". 89 If the Council or the Commissioner is satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct (but not professional misconduct), then, despite s155 (2), the Council or the Commissioner may reprimand the legal practitioner, if the legal practitioner consents to the reprimand, or dismiss the complaint if satisfied that the legal practitioner is generally competent and diligent and that no other material complaints have been made against the legal practitioner. Thus, even if the Council or the Commissioner are satisfied that there is a reasonable likelihood that the facts complained of would be made out before the Tribunal, the possible consequences are such that the legal practitioner could reasonably expect the opportunity to advance a case to the Council or the Commissioner that it should be satisfied only that there was a reasonable likelihood that the legal practitioner would be found guilty by the Tribunal of unsatisfactory professional conduct and that the legal practitioner was generally competent and diligent and that no other material complaints had been made against the legal practitioner. 90 In my opinion, proper performance of the duty and proper exercise of the powers conferred on the Commissioner by s155 require that, before the Commissioner completes an investigation into the complaint against the legal practitioner and decides how in accordance with s155 the complaint is to be dealt with, the legal practitioner be given the opportunity to see a copy of the complaint and answer it and to advance argument against it and in favour of the lesser charge than that of professional misconduct or in mitigation. This would enable the legal practitioner to submit that the Commissioner should be satisfied that there was no reasonable likelihood that the legal practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct and that the complaint should be dismissed under subs (4). 91 This conclusion follows from the structure and operation of s155 and is a matter of statutory interpretation. I think it also follows from the nature of the power conferred upon the Commissioner by s155 which is apt to "destroy, defeat or prejudice the legal practitioner's rights, interests or legitimate expectations". By way of example, a legal practitioner faced, without seeing the complaint or being heard, with a finding by a Council or the Commissioner that there was a reasonable likelihood that the legal practitioner would be found guilty by the Tribunal of unsatisfactory professional conduct, must decide, without being heard, whether to consent to a reprimand. In Wiseman v Borneman [1971] AC 297 the question was whether procedural fairness required a Tribunal to give a taxpayer an opportunity to be heard before it decided whether there was or was not a prima facie case for proceeding in the matter, Lord Wilberforce said at 320: "On the taxpayer's side, there is the natural aversion against allowing a decision to be made on the basis of material he has not seen: and he can meet the objection that to allow him to see the counter-statement and comment on it invites an infinite process of contestation with the argument that in practice this will not result, since it will be exceptional that, after a counter-statement has gone in, the taxpayer can show there is no prima facie case. On the side of the commissioners it can be said that the taxpayer already has the essentials of justice in his right to put in a statutory declaration. In the normal case in which the section is likely to be invoked, the taxpayer will know quite well what are the relevant circumstances, will be aware of the case against him, and will know as much as, probably more than, the commissioners themselves. A case where he is unable to convince the tribunal that there is no prima facie case for proceeding on the strength of his statutory declaration is in the nature of things one which will have to be decided." 92 The two sides of the argument so described are not dissimilar from those advanced on the present proceedings. In this case a matter of significant difference is that the Commissioner's duty is not merely to determine whether or not there is a prima facie case but to reach a degree of satisfaction and make decisions as to the course then to be followed. In that context the legal practitioner has an interest to press not only against the initial finding but also against the following of one particular course rather than another. Not surprisingly in that context the Councils and, until recently, the Commissioner, as a matter of practice, gave the legal practitioner the opportunity to be heard. But, in my opinion, the Act itself gives rise to such an expectation as a matter of statutory construction. Necessarily this carries with it the right to see a copy of the complaint made. The failure to provide a copy of the complaint to Mr Murray and give him the opportunity to respond vitiates the institution of the proceedings under s155.

RECORD OF AND REASONS FOR DECISION 93 Section 156 provides that a Council or the Commissioner "must" cause a record of its decision with respect to a complaint, together with the reasons for the decision, to be kept in respect of each investigation conducted under Div 5 and s171J (1) requires the Council or the Commissioner to cause the decision with respect to a complaint, together with the reasons for the decision, to be notified to the legal practitioner. The Commissioner submitted that the forming of a satisfaction under s155 (2) was not a decision within the meaning of these sections although s155 is headed "Decision after investigation of complaint". Alternatively, the Commissioner submitted that the requirement was satisfied by the terms of the formal advice contained in his letter of 4 May 1998. I would reject both submissions. 94 In argument the Commissioner relied upon what was said by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335 to the effect that in the context of judicial or administrative proceedings the word "decision" may signify a determination of any question of substance or procedure or, more narrowly, a determination effectively resolving an actual substantive issue. His Honour said: "Even if it has that more limited meaning, the word can refer to a determination whether final or intermediate or, more narrowly again, a determination which effectively disposes of the matter in hand: see Director General of Social Services v Chaney (1980) 47 FLR 80 at 100." 95 In the present case, s156 speaks of the Commissioner's "decision with respect to a complaint, together with the reasons for the decision". Section 171J (1) distinguishes between "the decision with respect to a complaint" (subs (1)) and "a decision of a Council to dismiss the complaint or reprimand the legal practitioner" (subs (2)). Although subs (2) applies to a decision of a Council and not of the Commissioner, whereas subs (1) applies to a decision of both a Council and the Commissioner, the difference in language between the two subsections indicates plainly that subs (1) embraces decisions other than decisions to dismiss the complaint or reprimand the legal practitioner, that is to say, embraces decisions to institute proceedings in the Tribunal pursuant to s155 (2). 96 That the word has this wider meaning is consistent with the s155 heading "Decision after investigation of complaint", to which regard may be had, pursuant to s34 (1) of the Interpretation Act 1987, as capable of assisting in the ascertainment of the meaning of the section to confirm that meaning or to determine it, if in this respect the section is ambiguous or obscure, notwithstanding that pursuant to s35 the heading is not part of the Act; s35 (5). The need for a Council or the Commissioner to cause a record of its decision with respect to a complaint together with reasons for the decision to be kept in respect of an investigation conducted under Div 5 is to protect both legal practitioners and complainants from arbitrary decision making and to emphasise, by the express inclusion of these functions, the quasi judicial nature of the decision making process. This, in itself, lends support to the conclusion that the legal practitioner is entitled to a copy of the complaint and an opportunity to meet it before a decision is taken; compare Kioa v West (1985) 159 CLR 550 at 579. Again, this accords with the principle that not only must justice be done but be seen to be done. 97 The Commissioner argued that his letter to Mr Murray of 4 May 1998 provided sufficient reasons to satisfy the requirements of the Act, when he wrote that he was satisfied "that there is a reasonable likelihood that you will be found guilty by the Legal Services Tribunal of unsatisfactory professional conduct or professional misconduct." In my opinion, this statement does not qualify as reasons in the way that word is used in the Act. The Commissioner should, at the least, have explained by reference to the material before him how he came to the conclusion that he did. 98 In Dorman v Riordan (1990) 24 FCR 564 the Full Federal Court held at 573 that a substantial failure to state reasons for a decision in the circumstances that a statement of reasons is a requirement of the exercise under the statute of the decision making power constitutes an error of law. Relevantly, this means that the legal practitioner has no means of knowing, as the legislature intended the practitioner should, whether the decision making power has been properly exercised.

CONCLUSION 99 The Commissioner submitted that no purpose would be served by requiring the Commissioner to receive submissions from Mr Murray, and there was even less utility in requiring the Commissioner to give more detailed reasons. It was said in the submissions: "The result in each case will not be altered." The Commissioner called in aid Stead v State Government Insurance Commission (1986) 161 CLR 141. At 145-6 the High Court said that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary Judge at the first trial. "By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial. Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference …….. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. " 100 At 147 their Honours said: "All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result." 101 There is no material before this Court upon which the Court could reach the conclusion that there was no such possibility. What answer Mr Murray could have made to the complaint if it had been duly furnished to him is unknown. In Kioa at 633 Deane J said: "Clearly enough, the mere circumstance that there is no apparent likelihood that the person directly affected could successfully oppose the making of a deportation order neither excludes nor renders otiose the obligation of the administrative decision maker to observe the requirements of procedural fairness. Indeed, the requirements of procedural fairness may be of added importance in such a case in that they ensure an opportunity of raising for consideration matters which are not already obvious." 102 The submission put by the Commissioner suggests, I think unintentionally, pre-judgment. 103 In my opinion, Mr Murray is entitled to a declaration that the Commissioner's decision to institute proceedings in the Tribunal against him on 1 May 1998 is void and should be quashed and an order prohibiting and otherwise restraining the Tribunal from proceeding to conduct a hearing on the Information filed on 4 May 1998. Such an order does not of course prevent the Tribunal hearing any future proceedings that may be instituted with respect to Dr Rajski's complaint. In the light of the fact that the Commissioner must now again make a decision under s155, when he has indicated already in his submissions that the result would be the same, it seems to me desirable to avoid further litigation that he exercise his powers under s142 (1) to refer the complaint to the Law Society Council. The Commissioner must pay Mr Murray's costs of this application.

ORDERS 104 I propose the following:

A declaration that the decision of the first opponent under the Legal Profession Act s155 (2) to institute proceedings before the second opponent with respect to the complaint against the claimant is void. 2. An order that the decision of the first opponent under the Legal Profession Act s155 (2) to institute proceedings before the second opponent with respect to the complaint against the claimant be quashed. 3. An order prohibiting or otherwise restraining the second opponent from proceeding to conduct a hearing on the Information filed on 4 May 1998 against the claimant in proceedings No 14 of 1998. 4. The first opponent to pay the claimant's costs of the summons. 5. The claimant to pay the first opponent's costs of the application by notice of motion of 19 February 1999. 105 STEIN JA : I agree with Sheller JA and would add some additional reasons why his conclusions on the procedural fairness issue are correct. I also agree with the additional remarks made by Priestley JA. 106 Senior Counsel for the Commissioner accepted that if the Commissioner is satisfied under s 155(2) of the Legal Profession Act 1987 that the legal practitioner will be found guilty of unsatisfactory professional conduct by the Tribunal, then procedural fairness has to be accorded under sub section (3). Mr Haylen submits that this duty arises because a reprimand or dismissal under ss (3) will finally dispose of a complaint. However, it must be pointed out that the Commissioner is not required to reprimand or dismiss. The Commissioner may, if he is satisfied that the practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct, lay an information before the Tribunal. 107 This highlights the difficulty inherent in the Commissioner's argument. It can mean that a practitioner, whom the Commissioner is satisfied would be reasonably likely to be found guilty by the Tribunal of unsatisfactory professional conduct, will receive procedural fairness under ss (3) before an information is laid before the Tribunal. By contrast, assuming the correctness of the opponent's submission, if the Commissioner is satisfied that the Tribunal would find the practitioner guilty of professional misconduct, a more serious charge, the practitioner is not entitled to procedural fairness from the Commissioner. In my opinion, this is logically inconsistent, besides being obviously unfair to the practitioner. 108 It is well to remember that in this case it is alleged by the Commissioner that the legal practitioner is guilty of either professional misconduct or unsatisfactory professional conduct. 109 The opponent's concession, which I have discussed above, supports the conclusion that as a matter of plain statutory construction of the words appearing in s 155, and in the context of the Act, the legal practitioner is entitled to see a copy of the complaint and have an opportunity to answer it in order to seek to convince the Commissioner that he should not form the opinion under ss (2) or might proceed to reprimand the practitioner or dismiss the complaint under ss (3) or (4). 110 I agree with Sheller JA that the failure to provide a copy of the complaint or to afford the practitioner the opportunity to respond vitiates the laying of the information under s 155. 111 I agree with the orders proposed by Sheller JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Companies Act 1961(Vic)

New South Wales Court of Appeal CITATION : MURRAY v LEGAL SERVICES COMMISSIONER & ANOR [1999] NSWCA 70 FILE NUMBER(S) : CA 40377/98 HEARING DATE(S) : 21 October 1998; 22 October 1998; 27 November 1998; 15 December 1998; 3 March 1999 JUDGMENT DATE : 30 March 1999

COUNSEL : P LeG Brereton SC - Claimant W R Haylen QC/M C Marien - Opponents SOLICITORS : Atanaskovic Hartnell - Claimant I V Knight - Crown Solicitor - Opponents CATCHWORDS : ADMINISTRATIVE LAW; PROCEDURAL FAIRNESS; LEGAL SERVICES COMMISSIONER'S DECISION VOID; REQUIREMENT TO SUPPLY COPY OF COMPLAINT; CERTIORARI; PROHIBITION ACTS CITED : LEGAL PROFESSION ACT 1987 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Annetts v McCann (1990) 170 CLR 596 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Baba v Parole Board of NSW (1986) 5 NSWLR 338 Bonaker v Evans (1850) 16 QB 162 Commissioner of Police v Reid (1989) 16 NSWLR 453 Commissioner of Police v Tanos (1958) 98 CLR 383 Cornall v AB (a solicitor) [1995] 1 VR 337 Dennis v The Law Society of NSW (unreported) Court of Appeal, 17 December 1979 Dorman v Riordan (1990) 24 FCR 564 Johns v Australian Securities Commission (1993) 178 CLR 408 CASES CITED: Kioa v West (1985) 159 CLR 550 Medical Board of Queensland v Byrne (1958) 100 CLR 582 R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256 Re NSW Bar Association; Ex parte Evatt (1967) 67 SR (NSW) 236 Rees v Crane [1994] 2 AC 173 Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 South Australia v O'Shea (1987) 163 CLR 378 Stead v State Government Insurance Commission (1986) 161 CLR 141 Testro Bros Pty Limited v Tait (1963) 109 CLR 353 Twist v Randwick Municipal Council (1976) 133 CLR 106 Wentworth v Rogers (1984) 2 NSWLR 422 White v Ryde Municipal Council (1977) 2 NSWLR 909 Wiseman v Bornemand [1971] AC 297 DECISION : Declaration that decision void.; Certiorari; Prohibition

MURRAY v LEGAL SERVICES COMMISSIONER & ANOR

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