Murray v Legal Services Commissioner & Anor

(1999) 46 NSWLR 224; [1999] NSWCA 70

NSW Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Procedural fairness
3. › Natural justice
4. › Investigation of complaints against legal practitioners
5. › Whether investigator required to provide copy of complaint and opportunity to respond before deciding to institute disciplinary proceedings
6. › Whether nature of power apt to destroy, defeat or prejudice rights, interests or legitimate expectations
7. › Legal Profession Act 1987 (NSW), ss 125(a), 155(2), 155(3), 155(4)
1. Administrative Law
2. › Reasons for decision
3. › Statutory obligation to record and notify reasons
4. › Whether bare statement of statutory satisfaction constitutes adequate reasons
5. › Legal Profession Act 1987 (NSW), ss 156, 171J
1. Administrative Law
2. › Procedural fairness
3. › Futility
4. › Whether denial of natural justice should be excused where outcome said to be inevitable
5. › Whether court can conclude that properly conducted process could not possibly have produced different result
1. Evidence
2. › Privilege
3. › Statutory protection of documents
4. › Waiver
5. › Whether calling evidence in proceedings waives statutory protection over other documents on file
6. › Whether implied waiver arises from unfairness
7. › Legal Profession Act 1987 (NSW), s 171R

Quick Take

Before the Legal Services Commissioner decides under s 155(2) of the Legal Profession Act 1987 (NSW) to institute disciplinary proceedings, the legal practitioner must be provided with a copy of the complaint and given an opportunity to respond. A bare statement that the Commissioner is satisfied of a reasonable likelihood of a finding of guilt does not constitute adequate reasons under ss 156 and 171J. The Commissioner's reliance on s 171R to resist document production is not waived merely by calling evidence in the proceedings, but the Commissioner cannot selectively rely on material while using s 171R to withhold related documents touching upon the same matter.