Citation: Kawicki v Legal Services Commissioner & Anor [2002] NSWSC 1072
Court: Supreme Court of New South Wales, Common Law Division (Administrative Law List)
Date: 15 November 2002
Judge(s): Burchett AJ
Background
The plaintiff had been convicted of knowingly maintaining an escaped prisoner, but the Court of Criminal Appeal subsequently quashed that conviction as unsafe and unsatisfactory. Following his acquittal, the plaintiff wrote to the Attorney-General seeking an ex gratia payment and complaining about the conduct of the prosecution by the Director of Public Prosecutions (DPP).
The Attorney-General's Department referred the plaintiff's letter to the DPP, who responded with letters in March and September 1996 setting out his views on the prosecution. The DPP expressed the opinion that the prosecution had been correctly brought and conducted, and that the plaintiff had received a fair trial. The plaintiff took issue with those characterisations, contending they misrepresented findings made by the Court of Criminal Appeal.
The plaintiff lodged a complaint of professional misconduct against the DPP with the Legal Services Commissioner. The Commissioner dismissed the complaint on 4 February 2002. The plaintiff then sought judicial review in the Supreme Court, asking for a declaration that the DPP's letters were written "in connection with the practice of law" and an order setting aside the Commissioner's decision to dismiss the complaint.
Legal Issues
- Whether the DPP's letters to the Attorney-General's Department constituted conduct "in connection with the practice of law" within the meaning of the Legal Profession Act 1987, such that the conduct was subject to professional misconduct jurisdiction.
- Whether the Legal Services Commissioner's investigation was properly completed before the complaint was dismissed under the Act.
- Whether the Commissioner's decision to dismiss the complaint was so unreasonable that no reasonable person could have reached it.
- Whether irrelevant considerations had been taken into account by the Commissioner.
- Whether the Commissioner had decided the correct legal question under section 155 of the Legal Profession Act 1987.
Decision
Burchett AJ dismissed the plaintiff's application in its entirety. The court found no basis to disturb the Legal Services Commissioner's decision dismissing the professional misconduct complaint against the DPP.
On the central question of whether the DPP's letters were written "in connection with the practice of law," the court accepted that this was a threshold question for the Commissioner's jurisdiction. However, the court found it was plainly open to the Commissioner to conclude that the DPP, in advising the Attorney-General's Department on the conduct of a prosecution, was not acting in that capacity as a legal practitioner in private practice but rather in the exercise of a statutory public office.
On the reasonableness ground, Burchett AJ found that the Commissioner's decision was well within the range of conclusions open on the material. His Honour observed that even if there had been any error in the DPP's letters, the elaborate circumstances said to demonstrate that error were more consistent with a misunderstanding than with professional misconduct falling within the relevant provisions of the Act. His Honour noted he would personally have reached the same conclusion as the Commissioner.
The court also rejected the plaintiff's remaining grounds, including the contention that the Commissioner had not completed a proper investigation and that irrelevant considerations had infected the decision. None of those challenges was made out on the facts or the applicable legal framework.
Orders Made
- Plaintiff's application dismissed with costs, including costs in favour of both the Legal Services Commissioner and the DPP.
Key Takeaways
- The question of whether conduct by a legal practitioner occurs "in connection with the practice of law" under the Legal Profession Act 1987 is a threshold jurisdictional matter for the Legal Services Commissioner, and a court on review will not disturb a conclusion on that question unless it falls outside the range of reasonable outcomes.
- Advice given by the DPP to the Attorney-General's Department concerning the conduct of a prosecution was found, on the facts of this case, to be open to characterisation as the exercise of a statutory public office rather than the practice of law attracting professional conduct jurisdiction.
- Under sections 127 and 155 of the Legal Profession Act 1987, the Commissioner must reach the "required satisfaction" before instituting proceedings in the Tribunal; where the Commissioner is not so satisfied, dismissal of the complaint is authorised.
- No error was established in the Commissioner's approach merely because the plaintiff's characterisation of the DPP's letters differed from the Commissioner's; an elaborate argument for error may itself be consistent with a finding of mere misunderstanding rather than misconduct.
- In administrative law challenges to Commissioner decisions, the threshold for establishing unreasonableness is high; the court here found the decision was not only reasonable but one that the reviewing judge would personally have reached.
Legislation and Cases Referenced
Legislation:
- Legal Profession Act 1987 (NSW), particularly ss 127 and 155
- Director of Public Prosecutions Act 1986 (NSW)
Cases:
- Tadeusz Kawicki (1995) 82 A Crim R 191
- Murray v Legal Services Commissioner (1999) 46 NSWLR 224
- Palmer v R (1992) 106 ALR 1
- Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
- The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
- Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322
- Nye v State of New South Wales (unreported, 27 September 2002)