RADIN v THE LAW SOCIETY OF NEW SOUTH WALES [1994] NSWCA 257

RADIN v THE LAW SOCIETY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY JA 6 June 1994

[1994] NSWCA 257 Handley JA

(On application for costs.

When this matter was called on before the Court this morning I informed Mr Stewart of counsel appearing for Mr Radin in both matters that in view of the decision of this Court in Hill v King (1993) 31 NSWLR at 654, the Court would not permit his client to maintain proceedings for prerogative relief against the decision of the Legal Profession Disciplinary Tribunal at the same time as exercising a right of appeal from the same decision under s164 of the Legal Profession Act.

Accordingly, I informed Mr Stewart that his client would have to make an election. The matter was adjourned to 2 o'clock this afternoon to enable the appellant to consider his position. I am informed by Mr Stewart this afternoon that the appellant has elected to abandon the summons for prerogative relief and to proceed with the appeal. The appeal is intended to be a hearing de novo in accordance with s164 of the Act.

I will therefore dismiss the summons, Radin v Law Society of New South Wales, Court of Appeal No 40056/94. In the circumstances the claimant must pay the costs of the summons.

I was informed this afternoon that the estimated duration of the hearing de novo in this Court is of the order of five days. I will therefore consider whether the Court should of its own motion remit the appeal to a Judge of the Common Law Division for trial pursuant to s51 of the Supreme Court Act.

I will consider this question and consult the other Judges of the Court. If an order for remission is made it would be appropriate on that ground for me to vacate the orders of Justice Meagher made on 16 May 1994 to allow a Judge in the Common Law Division to give appropriate directions in the light of the proposed hearing de novo.