Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hastwell v Legal Services Commissioner [2021] NSWCA 20 Hearing dates: 24 February 2021 Decision date: 24 February 2021 Before: Basten JA; Meagher JA Decision: (1) Dismiss the application for leave to appeal from the judgment and orders of the Common Law Division of 7 August 2020. (2) Order the applicant to pay the Commissioner's costs in this Court. Catchwords: ADMINISTRATIVE LAW – judicial review – decision of professional disciplinary authority – decision to discontinue inquiry into complaint – refusal of internal review of initial decision – review sought by complainant – availability of orders in nature of certiorari APPEAL – application for leave to appeal from judgment in supervisory jurisdiction – review of decision of Legal Services Commissioner discontinuing inquiries into aspects of complaint – complaint as to disciplinary matter – whether complainant had any right or interest affected by decision PROCEDURE – judicial review – role of decision-maker as contradictor in challenge to decision – exception to principle in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 – whether contravention would be appealable error Legislation Cited: Legal Profession Uniform Law (NSW), ss 268, 270, 313, 315; Ch 5, Pts 5.2, 5.4, Divs 2, 4 Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 Mendonca v Legal Services Commissioner [2020] NSWCA 84 Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2019] NSWCA 216 The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 Category: Procedural rulings Parties: Haydyn Gary Hastwell (Applicant) Legal Services Commissioner (Respondent) Representation: Counsel: Applicant self-represented R Withana (Respondent) Solicitors: Office of the Legal Services Commissioner (Respondent) File Number(s): 2020/250878 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2020] NSWSC 1008 Date of Decision: 7 August 2020 Before: Campbell J File Number(s): 2018/197067 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. JUDGMENT OF THE COURT delivered by BASTEN JA: On 26 June 2018 the applicant, Haydyn Gary Hastwell, commenced proceedings in the Common Law Division seeking judicial review of a decision of the Legal Services Commissioner discontinuing investigation of parts of a complaint by the applicant about his former solicitors. On 7 August 2020 Campbell J delivered a judgment dismissing the proceedings for judicial review, with no order as to costs. [1] On 5 November 2020 the applicant filed a summons seeking leave to appeal from the judgment in the Common Law Division. 2. On 15 March 2018 the Legal Services Commissioner declined to proceed with three aspects of the applicant's complaint. On 31 May 2018 he declined to conduct an internal review of the earlier decision. Although the orders sought in the second further amended summons filed in the Division included six declarations and consequential orders in the nature of mandamus, the focus of the relief was the application for an order in the nature of certiorari quashing the decision of the Legal Services Commissioner regarding three allegations in the complaint, and the decision declining to undertake an internal review of the initial decision. The primary judge refused relief on the general ground that such relief was not available because the legal consequences of the Commissioner's decisions did not adversely affect any legal rights, interests or liabilities of the applicant. There was, therefore, nothing to be nullified or invalidated by a quashing order. In formulating that test, the primary judge referred to and relied upon the reasoning of the High Court in Ainsworth v Criminal Justice Commission [2] and Hot Holdings Pty Ltd v Creasy. [3] 3. The Legal Profession Uniform Law (NSW) (Uniform Law) provides for a disciplinary scheme with respect to legal practitioners operating in this State. Relevantly for present purposes, Ch 5 of the Uniform Law allows for the making of complaints with respect to disciplinary matters: ss 268 and 270. Part 5.2, Div 2 provides for the preliminary assessment of complaints; Div 4 provides for the investigation of complaints. Disciplinary matters are specifically dealt with in Pt 5.4. The local regulatory authority in New South Wales is the Legal Services Commissioner. Pursuant to s 315, the Commissioner is obliged to deal with all complaints properly made, in accordance with the Uniform Law and the Uniform Rules. Where a decision is made to close the complaint or otherwise a determination is made in relation to the complaint, the Commissioner is obliged to give both the complainant and the respondent written notice of those decisions. Otherwise, how the complaint is to be addressed and what processes, if any are to be engaged, is a matter for the discretion of the Commissioner. The complainant is, to a large extent, a conduit pursuant to which a disciplinary matter may be drawn to the attention of the Commissioner. 4. As the primary judge noted, [4] it was appropriate to consider first whether the decision of the Commissioner was amenable to judicial review on the application of a complainant. His conclusion on that issue was as follows: "[57] I am of the opinion that the Commissioner's decision to close those aspects of Mr Hastwell's complaint under s 277 Uniform Law, the subject of his determination of 15 March 2018 is not amenable to certiorari and to that extent the proceedings must be dismissed." 1. In order to obtain leave to appeal, the applicant needed to demonstrate at least an arguable case that, as a matter of law, that conclusion was erroneous. [5] That required establishing that the statutory scheme conferred legal rights or interests on the applicant which would be adversely affected by the refusal to consider further the three allegations in the applicant's complaint. Absent such a demonstration, the principles established in Hot Holdings precluded the amenability of the decision to judicial review on the application of the applicant. Given the nature of the statutory scheme alluded to above and set out in more detail by the primary judge, no such arguable case was established. 2. Secondly, the applicant sought to review the decision of the Commissioner not to pursue internal review of the earlier decision. Section 313 of the Uniform Law confers on the Commissioner a discretion, expressly identified as an "absolute discretion", to determine whether to conduct an internal review or not. The Commissioner's decision of 31 May 2018 was not to conduct an internal review. 3. A similar issue arose in the recent decision of Mendonca v Legal Services Commissioner. [6] This Court dismissed a summons seeking leave to appeal from a judgment which had relied upon the principles stated in Hot Holdings to deny the availability of judicial review of a decision under s 313 of the Uniform Law. No basis was put forward by the applicant for challenging that decision. 4. A third ground in the proposed appeal relied on the role played by the Commissioner in defending his decisions before the primary judge. This was said to involve a contravention of the principle identified in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [7] stating that it is inappropriate for a decision-maker, to whom a matter may be remitted if an impugned decision is set aside, to be an active defender of the earlier decision, because such conduct might put its future impartiality in issue. The primary judge addressed this complaint in some little detail at [2]-[6]. He concluded that the Commissioner did not exceed his proper role. The judge concluded that there was no potential alternative contradictor, and, in any event, Hardiman permits a decision-maker to make submissions in respect of his or her powers and procedures. Given that the issues raised in the supervisory jurisdiction are questions of law and procedure, that exception to the principle will commonly apply. Even if, contrary to the judge's finding, the Commissioner did exceed his proper role, as counsel for the Commissioner submitted, that fact would not demonstrate appealable error. This proposed ground was misconceived. 5. We should add that, although the applicant invited this Court to give directions to the Commissioner as to how he should conduct his statutory authority for the protection of clients of legal practitioners in New South Wales and in order to maintain the standards of the profession, that is not the proper function of this Court. Nor is it appropriate for this Court to review the substance of the matters raised in complaints made by the applicant to the Human Rights Commission and the Federal Court, let alone the material submitted to the Commissioner, as the applicant also proposed. Costs 1. The applicant resisted a costs order against him on the basis that the proper role of the Commissioner, complying with the Hardiman principle, was akin to that of an amicus curiae, who would usually neither receive nor pay costs. [8] However, as explained above, the Commissioner was the appropriate contradictor and entitled to resist the orders sought in the summons. Costs should follow the event. Orders 1. In these circumstances, the Court makes the following orders: 1. Dismiss the application for leave to appeal from the judgment and orders of the Common Law Division of 7 August 2020. 2. Order the applicant to pay the Commissioner's costs in this Court. ********** Endnotes 1. Hastwell v Legal Services Commissioner [2020] NSWSC 1008 ("Hastwell"). 2. (1992) 175 CLR 564 at 580 (Mason CJ, Dawson, Toohey and Gaudron JJ) and 595 (Brennan J); [1992] HCA 10. 3. (1996) 185 CLR 149 at 159 (Brennan CJ, Gaudron and Gummow JJ); [1996] HCA 44. 4. Hastwell at [10]. 5. Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 at [9]-[13]. 6. [2020] NSWCA 84. 7. (1980) 144 CLR 13 at 35-36; [1980] HCA 13. 8. Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2019] NSWCA 216 at [67]. 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. Decision last updated: 01 March 2021