KNAGGS v THE SOLICITORS STATUTORY COMMITTEE [1990] NSWCA 109

KNAGGS v THE SOLICITORS STATUTORY COMMITTEE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA 10 September 1990

[1990] NSWCA 109

Clarke JA. This is an application that proceedings which were remitted from the Common Law Division to this Court be re-assigned to the Common Law Division. The original application made by the claimant is for a declaration which seeks relief in the nature of prerogative relief. He brought his proceedings in the Common Law Division but, as it appears clear from the order made by Lusher AJ, his Honour took the view at that time proceedings were more appropriately heard in this Court.

No appeal has been brought from Lusher AJ's decision. Instead, the claimant has sought the order I earlier mentioned. In doing so, he seeks an order that this court exercise its discretion to re-assign this matter to the Common Law Division.

He supports his application by pointing out that in s 48, (1) A (viii) of the Supreme Court Act the disciplinary Tribunal is nominated as a specified tribunal in place of the SolicitorsStatutory Committee. This obviously is the result of the new regime under which solicitors disciplinary matters are dealt. It does seem to me that there is a hiatus insofar as there is no specific provision for remaining matters from the Solicitors Statutory Committee to be assigned to the Court of Appeal. Nevertheless, those matters have in the past been dealt with in this court and it is clear enough that the Legislature intended that matters of that nature will continue to be dealt with in this court by reason of the inclusion of the disciplinary Tribunal in the definition of "Specified tribunal" in s 48.

I don't think there is any merit in the suggestion that the omission of the Solicitors Statutory Committee from that section indicates a clear legislative intent that any remaining matters from the Solicitors Statutory Committee should be dealt with, at first, by the Common Law Division. Nor am I impressed by the secondary argument which was that this Court should exercise its discretion to prevent the claimant losing one layer of appeal. The substantive point he seeks to raise is a highly technical one arising from the fact that the members who constituted the Solicitors Statutory Committee who heard this case were not on the Bench when judgment was handed down. That is a type of case which is singularly appropriate for determination in this Court and I do not propose to exercise my discretion and order proceedings be re-assigned to the Common Law Division. Accordingly, the notice of motion will be dismissed with costs.