Council of the Law Society of New South Wales v Zhukovska

(2020) 102 NSWLR 655; [2020] NSWCA 163

NSW Court of Appeal

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Interrogate

Catchwords

1. Legal Practitioners
2. › Solicitors
3. › Disciplinary proceedings
4. › Appropriate orders following findings of professional misconduct and unsatisfactory professional conduct
5. › Whether solicitor's name should be removed from roll
6. › Distinction between suspension, cancellation of practising certificate and removal from roll
7. › Whether cancellation order appropriate where solicitor not presently fit but not probably permanently unfit
8. › Legal Profession Act 2004 (NSW), s 562
1. Legal Practitioners
2. › Solicitors
3. › Disciplinary proceedings
4. › Conditions on issue of new practising certificate
5. › Whether Tribunal erred in making non-binding recommendations rather than imposing conditions
6. › Significance of recommendations as opposed to conditions
7. › Whether findings justified 12-month period before new certificate could issue
8. › Legal Profession Act 2004 (NSW), s 562(2)(d), (4)(j)
1. Appeal
2. › Appeal from NCAT to Court of Appeal
3. › Nature of appeal by way of rehearing
4. › Whether necessary to show House v The King error
5. › Whether correctness standard or House v The King standard applies to choice between removal from roll and cancellation
6. › Whether statutory power tolerates range of outcomes
7. › Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, cl 29
8. › Supreme Court Act 1970 (NSW), s 75A

Quick Take

Practitioners and disciplinary tribunals should note that where a lawyer is found presently unfit to practise but not probably permanently unfit, cancellation coupled with conditions is the appropriate order, not removal from the roll; and that the Tribunal must impose binding conditions rather than making non-binding recommendations.