BARWICK v LAW SOCIETY OF NEW SOUTH WALES [1998] NSWCA 31

BARWICK v LAW SOCIETY OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, PRIESTLEY and SHELLER JJA 28 April 1998, 16 July 1998 [1998] NSWCA 31

STATUTORY INTERPRETATION — Legal Profession Act 1987 — proper construction of s138, s155 and s167

The claimant brought proceedings against the Law Society of New South Wales (the Law Society) and the Legal Services Tribunal (the Tribunal) for declarations and an order prohibiting or otherwise restraining the Tribunal from proceeding with a hearing into allegations against the claimant or a permanent stay of those proceedings.

The Claimant submitted that for a valid filing of an Information under s167 of the Legal Profession Act 1987 the following preconditions need to be met. First, that there be a valid complaint under Ptl0, Div 3 and any Information must be with respect to such a complaint. In this respect, for the Information to be valid, the complaint must have been initiated within three years of the conduct complained of Further, it was submitted that s167A does not authorise an amendment of an Information if the amendment has the effect of depriving the Information of the character of being one with respect to the complaint or it results in an original Information which is not one with respect to the complaint or the amendment adds allegations which could not have been the subject of a valid complaint. Second, that the initiation of proceedings must be proceeded by a proper investigation under Pt10.

Held:

1. The proper construction of the Act is that the time limitation in s138 does not apply to complaints initiated by a Council or by the Commissioner.

2. $155 requires that until the Council has completed an investigation the Council cannot institute proceedings in the Tribunal. The effect of s155 is to provide the legal practitioner with important protection. This would be undermined if before the investigation were completed, proceedings were instituted in the Tribunal with respect to the complaint.