THE COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES v NUTT AND ANOR [1995] NSWCA 102

COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES v NUTT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, MEAGHER and COLE JJA 4 August 1995, 24 August 1995

[1995] NSWCA 102

Legal Services Tribunal — Jurisdiction — Complaint of professional misconduct, 1986 — Complaint made to Law Society in 1992 — Legal Profession Act 1987 — Legal Profession Reform Act 1993

LEGAL SERVICES TRIBUNAL — Jurisdiction — Complaint of professional misconduct, 1986 — Complaint made to the Law Society in 1992, after commencement of Legal Profession Act 1987 — Law Society resolves to refer complaint to the existing Tribunal, Legal Profession Disciplinary Tribunal — Complaint not filed till after commencement of Legal Profession Reform Act 1993 — Whether Legal Services Tribunal has jurisdiction to deal with complaint — Held: Legal Services Tribunal has jurisdiction to deal with complaint — Decision of Legal Services Tribunal reversed.

ORDERS Appeal and summons for prerogative relief upheld. Referred to Legal Services Tribunal to deal with complaint in accordance with law. Respondent to pay the appellant's costs.

Mahoney AP John Adrian Nutt is a solicitor. It has been claimed by a former client that, in 1986, Mr Nutt acted in a way that involved professional misconduct. Mr Nutt has denied that he has been guilty of professional misconduct. For the purpose of this proceeding, the Court is asked to assume that he did what has been suggested against him. That assumption will be made. However, it is to be emphasised that it should not be inferred that the Court has investigated the substance of the claim or has formed any opinion as to the correctness of it.

The misconduct is serious. It is alleged that the solicitor acted for both vendor and purchaser in respect of an agreement for the sale of land "where there was a conflict of interest"; and it is claimed that he "committed or was knowingly concerned in the commission of a fraud on the Office of State Revenue'. That is misconduct the vice of which does not depend upon legislation: it is misconduct under the general law.