KNAGGS v THE SOLICITORS' STATUTORY COMMITTEE [1990] NSWCA 108

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

KIRBY P, MAHONEY and MEAGHER JJA 8 October 1990, 8 October 1990 [1990] NSWCA 108

KEY WORDS: PRACTICE AND PROCEDURE — LEGAL PRACTITIONERS — LAW REFORM PRACTICE AND PROCEDURE — Court of Appeal — assignment of business in the Supreme Court — Judge of Common Law Division (Lusher AJ) refers to the Court of Appeal a challenge by a suspended solicitor to the validity of the order of suspension by the Solicitors' Statutory Committee — Legal Practitioners' Act 1898 providing for Solicitors' Statutory Committee is repealed in 1987 — transitional proceedings apply only to uncompleted matters — reference to Committee deleted from s48(1) — Supreme Court Act 1970 — replaced by reference to Disciplinary Tribunal created by Legal Profession Act 1987 — suspended solicitor seeks order for reassignment of proceedings to Common Law Division — contends that they should remain where assigned by the Act and that he should not be deprived of the entitlement to appellate review of a primary decision on his point of challenge to the orders of the Committee concerning him — Clarke JA, exercising the jurisdiction of the Court of Appeal under s46(1) Supreme Court Act, 1970 declines to reassign the proceedings to the Common Law Division — claimant seeks review of that order pursuant to s46(4) of the Act — held: — dismissing the application: (1) Normally the Court of Appeal will follow the assignment of the business of the Supreme Court provided by the Supreme Court Act 1970 and where a matter is assigned to a Division will require that the matter be decided there so that it has the benefit of a conclusion of the primary judge. Law Society of New South Wales v Weaver [1977] NSWLR 67 referred to; A Barton v Berman [1980] NSWLR 63, 67 approved; (2) Nevertheless the proceedings had been validly referred to the Court of Appeal by a judge of the Supreme Court and it was for the claimant to persuade the Court of Appeal to assign it back to a Division pursuant to s51(4) Supreme Court Act; (3) The claimant had to show that Clarke JA's exercise of his discretion under that section had miscarried; (4) As the point of challenge was a pure question of law with no review of facts it was suitable for resolution by the Court of Appeal and it had not been shown that the decision of Clarke JA was wrong; (5) Accordingly, the application for review should be dismissed. LEGAL PRACTITIONERS — suspended solicitor — belated challenge to order of Solicitors' Statutory Committee — trial judge refers to Court of Appeal — Judge of Appeal declines to reassign proceedings to the Common Law Division — on application for variation or discharge of that order by the Court of Appeal — held: The decision should stand reference by Kirby P to the long established role of the Court of Appeal in matters affecting the discipline of legal practitioners.