Supreme Court New South Wales Medium Neutral Citation: Levitt v Council of the Law Society of New South Wales [2017] NSWSC 834 Hearing dates: 29, 30 and 31 May 2017 Date of orders: 29 June 2017 Decision date: 29 June 2017 Jurisdiction: Common Law Before: Wilson J Decision: (1) The decisions by the Council of the Law Society of New South Wales to commence proceedings in the Tribunal against the plaintiff pursuant to s 537(2) of the Legal Profession Act 2004 (NSW), as recorded in letters of 2 and 3 June 2016 are quashed, and set aside. (2) The Council of the Law Society of New South Wales is restrained from taking further steps in the proceedings commenced in the Civil and Administrative Tribunal (NSW) on the basis of the resolutions recorded in the letters of 2 and 3 June 2016. (3) The defendant is to pay the plaintiff's costs of these proceedings on an ordinary basis. Catchwords: ADMINISTRATIVE LAW – judicial review of decisions of the Council of the Law Society of New South Wales determining complaints against a solicitor – construction of s 537(2) of the Legal Profession Act 2004 – question of consideration of summary disposal of complaints – requirement to consider s 540 as condition precedent to operation of s 537(2) – requirement for Council's reasons to expose Legislation Cited: Legal Profession Act 1987 (NSW) Legal Profession Act 2004 (NSW) Legal Profession Uniform Law (NSW) Cases Cited: Menon v Council of the Law Society of New South Wales [2016] NSWSC 1322 Murray v Legal Services Commissioner (1999) 46 NSWLR 224 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 Category: Principal judgment Parties: Stewart Alan Levitt (Plaintiff) Council of the Law Society of New South Wales (Defendant) Representation: Counsel: Mr Kidd SC with Mr Ng (Plaintiff) Mr G Johnson (Defendant) Solicitors: Levitt Robinson (Plaintiff) Solicitor for the Law Society of New South Wales (Defendant) File Number(s): 2016/182480 Publication restriction: None Judgment 1. HER HONOUR: This judgment deals with an application for judicial review of decisions of the Council of the Law Society concerning complaints made against a solicitor, Stewart Levitt. There are two decisions under challenge, each of which relate to the Council's conclusion that it is satisfied that there is a reasonable likelihood that the plaintiff would be found by the Civil and Administrative Tribunal NSW ("the Tribunal") to have engaged in professional misconduct, consequentially requiring proceedings to be instituted against the plaintiff in the Tribunal, pursuant to s 537(2) of the Legal Profession Act 2004 (NSW). 2. The background to the matter is both protracted and complex, rather resembling something from the files of Jarndyce v Jarndyce. It is not, however, necessary to set out the full history of the matter, or to follow it down the winding course of the various legal and other proceedings. Such background as is necessary to understand these reasons is set out below. Background 1. The two impugned (sets of) decisions relate to two separate complaints lodged with the Law Society of New South Wales concerning the plaintiff. The first of the complaints was made by Marcus Jacobs QC ("the Jacobs complaint"); the second was made by a barrister from Queensland, Christopher Garlick ("the Garlick complaint"). 2. The Jacobs complaint arose in part from litigation involving Geoffrey and Linda Shannon. The Shannons had retained a Queensland solicitor, Douglas McClelland, to act for them between December 2011 and April 2013 in various legal proceedings. Mr McClelland in turn briefed Mr Jacobs QC to advise the Shannons, and to represent them. Mr Jacobs later submitted a large bill for his costs, which went unpaid by Mr McClelland. 3. In April 2013 Mr Jacobs filed an application for assessment of costs against Mr McClelland for his fees for the Shannon work, claimed by him in an amount in excess of $195,000. In October 2013 a certificate of determination of costs was issued by the Costs Assessor, in which it was determined that a reasonable amount of costs to be paid to Mr Jacobs was an amount of $145,587.75. Unhappy with the costs assessment, Mr McClelland retained the plaintiff to act for him in seeking a review of the costs assessment. 4. In November 2013 the plaintiff, in some haste because of the limited time available to him, filed an application for review, and later, in January 2014, an amended review application. 5. Mr Jacobs took exception to the contents of the review application submitted by the plaintiff, and made a complaint about the plaintiff to the Law Society. There followed an investigation of the complaint by the Council of the Law Society, leaving a paper trail of daunting size. Some of the correspondence generated by this complaint, or actions associated with it, themselves became the subject of further complaints by Mr Jacobs (and by Mr Garlick), such that there were ultimately a number of allegations against the plaintiff from Mr Jacobs to be resolved by the defendant. 6. On 2 June 2016, the Council advised the plaintiff that it had, by its Professional Conduct Committee, resolved the complaint adversely to him. The decision in the Jacobs complaint was in these terms: "RESOLVED that the Committee is satisfied there is a reasonable likelihood STEWART ALAN LEVITT ('the legal practitioner') will be found by the Tribunal to have engaged in professional misconduct and that proceedings be instituted in the Tribunal pursuant to Section 537(2) of the Legal Profession Act, 2004. Professional Misconduct 1. In an Application for Review of Determination of Costs Assessor dated 22 November 2013, the solicitor: (a) made or allowed an allegation of negligence to be made against the complainant without satisfying himself that evidence existed to support the allegation. (b) made or allowed allegations to be made against the complainant in relation to influencing, misleading and overreaching Mr McClelland without satisfying himself that evidence existed to support the allegations. (c) included inappropriate material. (e) alleged that complaints would be lodged against the complainant by four persons, including two persons who underwrote the complainant's fees, when the solicitor had no such evidence available to him and when the complainant had obtained security for outstanding fees from only one person. 2. In an Amended Application for Review of Determination of Costs Assessor dated 4 January 2014, the solicitor: (a) recklessly persisted in the above allegations. 3. … 4. In emails dated 29 and 30 March 2014, the solicitor made an extortionate or unprofessional threat to the complainant, the object of which was to intimidate the complainant to have costs recovery proceedings against Mr McClelland postponed. 5. … 6. The solicitor drafted and submitted/made or allowed a complaint to the Office of the Legal Services Commissioner on behalf of James Martinek which made allegations against the complainant without evidence or reasonable grounds on available material to support a proper basis for the complaint. [Breach of Rules 32.1, 5 and 34 of the Solicitors' Rules]. 7. … 8. … 9. The solicitor, recklessly or falsely, and without reasonable evidence, asserted that the complaints of Mr McClelland and Mr and Mrs Shannon to the Bar Association concerning the conduct of the complainant, had been withdrawn as a result of a financial benefit granted by the complainant as an inducement for the withdrawal of the complaints. Orders to be Sought 1. That the solicitor be reprimanded 2. That the solicitor pay a fine 3. That the solicitor pay the Society's costs 4. Such further and other order as the Tribunal sees fit." 1. The decision was accompanied by reasons, reasons which the plaintiff challenges on a number of grounds with respect to each of the eight instances of asserted professional misconduct (being 1(a), 1(b), 1(c), 1(e), 2, 4, 6, and 9). 2. The action taken against the defendant by the plaintiff in the Tribunal as a consequence of its decision has been stayed pending resolution of the proceedings in this Court. 3. The Garlick complaint was related to legal proceedings involving another individual, James Martinek. Mr Garlick was at the Bar on the Gold Coast. He had discussions with Mr Martinek about acting for him, with Mr Jacobs QC, in proceedings against BankWest. Subsequently, the plaintiff took instructions from Mr Martinek to advance a complaint against Mr Jacobs to the NSW Bar Association, such complaint implicating Mr Garlick in unprofessional conduct. The complaint was contained in two letters, of 23 and 24 April 2014 respectively (about which Mr Jacobs also complained). Mr Garlick complained to the Law Society about the plaintiff's conduct in advancing the April 2014 complaints. 4. As the investigation progressed, further correspondence was produced, with one letter from the plaintiff to Mr Garlick, of 2 March 2015, attracting a further complaint from Mr Garlick to the Law Society about the plaintiff. 5. On 3 June 2016 the Council advised the plaintiff that it had, by its Professional Conduct Committee, resolved the Garlick complaint adversely to him. The decision in the Garlick complaint was in these terms: "RESOLVED that the Committee is satisfied there is a reasonable likelihood STEWART ALAN LEVITT ('the legal practitioner') will be found by the Tribunal to have engaged in professional misconduct and that proceedings be instituted in the Tribunal pursuant to Section 537(2) of the Legal Profession Act, 2004. Professional Misconduct Complaint 2: In letters of 23 and 24 April 2014, the solicitor made factually baseless allegations against Mr Garlick Complaint 3: The solicitor's letter of 2 March 2015 made inappropriate and unfounded allegations about the complainant's dealings with the Australian Financial Security Authority. Orders to be Sought 1. That the solicitor be reprimanded 2. That the solicitor pay a fine 3. That the solicitor pay the Society's costs 4. Such further and other order as the Tribunal sees fit." 1. This decision also was accompanied by reasons, reasons which the plaintiff challenges on a number of grounds. 2. As a consequence of the decision, the defendant commenced proceedings against the plaintiff in the Tribunal, proceedings which have been stayed pending the resolution of the plaintiff's action before this Court. The Legislative Framework 1. The impugned decisions were made by the defendant in fulfilment of functions it had pursuant to the (now repealed) Legal Profession Act 2004 (NSW) ("the 2004 Act"). That Act has been replaced by the Legal Profession Uniform Law (NSW) ("the Uniform Law"), with effect from 1 July 2015, but there is no dispute that both the Jacobs complaint and the Garlick complaint fell to be dealt with in accordance with Chapter 4 of the 2004 Act: cl 26 of Schedule 4 of the Uniform Law. It is convenient at this point to set out some of the most relevant provisions of the 2004 Act. 2. Chapter 4 of the 2004 Act deals with "Complaints and Discipline". Part 4.2 provides for the making of complaints against an Australian legal practitioner, whilst Part 4.4 deals with the investigation of such complaints. Once a complaint is made, the practitioner is to be given notice of it as soon as practicable: s 508. Section 509 provides for the practitioner to make submissions, and for the Council to consider those submissions. It is in these terms (where the Council is the relevant body): "509 Submissions by practitioner (1) The Australian legal practitioner about whom a complaint is made may, within a period specified by the Commissioner, or by the Council by which a complaint is made or to which a complaint is referred for investigation, make submissions to the Commissioner or Council about the complaint or its subject-matter or both. (2) The Commissioner or Council may at their discretion extend the period in which submissions may be made. (3) The Commissioner or Council must consider the submissions made within the permitted period before deciding what action is to be taken in relation to the complaint." 1. As can be seen, where submissions are made by the practitioner within any specified period the Council must consider the submissions, that consideration being mandatory to the proper execution of its statutory functions. 2. The Council must (except in certain circumstances of no present relevance) investigate complaints received: s 525. 3. Part 4.5 provides for the decision of the Council. Section 537 provides for a decision after an investigation, as follows: "537 Decision of Commissioner or Council after investigation (1) After completion of an investigation of a complaint against an Australian legal practitioner, the Commissioner or a Council must: (a) commence proceedings in the Tribunal under this Chapter, or (b) dismiss the complaint under this Part, or (c) take action under section 540 (Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions). (2) Unless section 540 (Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions) applies, the Council or the Commissioner must commence proceedings in the Tribunal with respect to a complaint against an Australian legal practitioner if satisfied that there is a reasonable likelihood that the practitioner will be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct. (3) Nothing in this section affects section 512 (Withdrawal of complaints)." 1. Sections 538 and 539 are of no present relevance. Section 540, which provides for the summary conclusion of a complaint, and which is referred to in s 537, is in these terms: "540 Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions (1) This section applies if: (a) either: (i) the Commissioner or a Council completes an investigation of a complaint against an Australian legal practitioner, or (ii) the report of an independent investigator is given to the Commissioner, and (b) the Commissioner or Council (as the case requires): (i) is satisfied that there is a reasonable likelihood that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct (but not professional misconduct), and (ii) is satisfied that the practitioner is generally competent and diligent, and (iii) is satisfied that the taking of action under this section is justified having regard to all the circumstances of the case (including the seriousness of the conduct concerned) and to whether any other substantiated complaints have been made against the practitioner. (2) The Commissioner or Council may do any or all of the following: (a) caution the practitioner, (b) reprimand the practitioner, (c) make a compensation order under Part 4.9 if the complainant requested a compensation order in respect of the complaint, (d) determine that a specified condition be imposed on the practitioner's practising certificate. (3) Failure to attend as required by the Commissioner or Council to receive a caution or reprimand is capable of being professional misconduct. (4) If action is taken under subsection (2), no further action is to be taken under this Chapter with respect to the complaint. (5) If the Commissioner or Council decides to reprimand or make a compensation order against an Australian legal practitioner under this section, or that a condition be imposed on an Australian legal practitioner's practising certificate under this section, the practitioner may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. (6) If the Commissioner determines that a specified condition be imposed on a practising certificate, the appropriate Council is required to impose and maintain the condition. The condition may be amended, suspended, reinstated or revoked with the concurrence of the Commissioner." 1. Unsatisfactory professional conduct is defined in s 496 as including: "[…] conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner." 1. Professional misconduct is defined in s 497 as follows: "497 Professional misconduct (1) For the purposes of this Act: professional misconduct includes: (a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and (b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice. (2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters." 1. The next provision, s 498, sets out conduct which could be either unsatisfactory professional conduct or the more serious professional misconduct: "498 Conduct capable of being unsatisfactory professional conduct or professional misconduct (1) Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct: (a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules, (b) charging of excessive legal costs in connection with the practice of law, (c) conduct in respect of which there is a conviction for: (i) a serious offence, or (ii) a tax offence, or (iii) an offence involving dishonesty, (d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration, (e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth, (f) conduct consisting of a failure to comply with the requirements of a notice under this Act or the regulations (other than an information notice), (g) conduct of an Australian legal practitioner in failing to comply with an order of the Disciplinary Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law), (h) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law. (2) Conduct of a person consisting of a contravention referred to in subsection (1) (a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention." 1. Section 541 imposes an obligation on the Council to cause a record of its decision to be made, together with a statement of the reasons for the decision. Section 542 entitles the complainant and the practitioner to receive a statement of the reasons. 2. The reasons provided to the plaintiff by the Council with respect to both the Jacobs complaint and the Garlick complaint are the subject of challenge by the plaintiff. The Challenge to the Decisions of the Council 1. By Summons filed on 15 June 2016 the plaintiff seeks the following orders: "2. A declaration that the Decisions are void. 3. An order that the Decisions be quashed. 4. A permanent injunction restraining the Defendant from commencing proceedings in the Civil and Administrative Tribunal with respect to the complaints against the Plaintiff the subject of the Decisions. 5. Alternatively to 4, an order requiring the Defendant to decide the complaints against the Plaintiff the subject of the Decisions in accordance with law. 6. An order that the Defendant pay the Plaintiff's costs of these proceedings. 7. Such further or other order as the Court deems fit." 1. There are a number of grounds advanced with respect to each of the eight decisions made relevant to the Jacobs complaint, and to the two decisions relevant to the Garlick complaint. Because of the conclusion I have reached as to one complaint common to each of the ten impugned decisions, it is not necessary to consider in detail each of the specific grounds raised against each of the findings of the Council. 2. The plaintiff has made good his complaint that, in relation to each of the decisions, the defendant failed to consider the possible summary disposal of the complaints pursuant to s 540 of the 2004 Act, and whether it was satisfied of those matters in s 540(1)(b)(i), (ii) and (iii). Ancillary to that is the complaint, also made good, that the Council failed in respect of each decision to consider whether, on the facts as it found them to be, there was a reasonable likelihood of the Tribunal concluding that the plaintiff was guilty of professional misconduct, at all, or as opposed to some lesser course of conduct, and to take into account exculpatory material advanced by the plaintiff and consider how such material might impact upon the conclusions the Tribunal could reach. 3. For the reasons which will be set out below I consider that the plaintiff's complaints are well founded, and the decisions of the Council of the Law Society must be quashed. The Operation of ss 537(2) and 540 of the 2004 Act 1. Section 537(2) of the 2004 Act provides that proceedings in the Tribunal with respect to the complaint are to be commenced "unless section 540 applies". The plaintiff submits, and I accept, that the proper construction of s 537 is to read the words "unless s 540 applies" as establishing a preliminary consideration to which the decision maker must advert before concluding that proceedings should be commenced in the Tribunal. 2. That is, it is necessary for the Council to consider s 540 and, only if it is not satisfied that there is a reasonable likelihood that the Tribunal would find that the plaintiff engaged in unsatisfactory professional conduct, at all, or as opposed to the more serious professional misconduct, and that the practitioner was generally competent, such that summary conclusion was available, could it conclude that the matter is to be necessarily referred to the Tribunal. 3. There is nothing recorded in the reasons for the Council's determination of the two complaints to suggest that it considered s 540 and the possibility that the complaint could be disposed of under that section. 4. Since it is mandatory that the Council consider the application of s 540, pursuant to s 537(2) of the 2004 Act, it is reasonable to expect that it would refer to that aspect of the decision making process, to adequately expose its path of reasoning in arriving at the more adverse of the conclusions available to it. 5. Additionally, to properly consider whether summary conclusion of the complaint was available, some consideration of the exculpatory matters advanced by the plaintiff would have been necessary, but there is nothing in the reasons to demonstrate that such consideration was in fact given relevant to the question of summary disposition. 6. The Council may have given attention to these aspects of the complaint, but it is not possible from the reasons to see where or how. Whilst a detailed statement of reasons is not necessary, some reference to considerations made mandatory by the legislation is required. 7. Section 537(2) is so worded ("unless s 540 applies") that it is clear that it is necessary for the Council to give some attention to an assessment of the seriousness of the legal practitioner's conduct. The section requires the Council to do one of three things: 1. Commence proceedings in the Tribunal against the lawyer (s 537(1)(a)); 2. Dismiss the complaint (s 537(1)(b)); or 3. Proceed under s 540 by way of one of the sanctions provided for in that section (s 537(1)(c)). 1. In determining which is the appropriate course to take the Council must consider those matters referred to in s 540(1)(b)(i)-(iii). 2. A decision by the Council that there is a reasonable likelihood that the legal practitioner will be found by the Tribunal to have engaged in professional misconduct (or in unsatisfactory professional conduct but not professional misconduct) can only be made after the Council has considered the likelihood of the impugned conduct being found to constitute professional misconduct (s 497) as opposed to unsatisfactory professional conduct (s 496). 3. The distinction between the two types of conduct is important, and has significant consequences. It is clear, having regard to the sanctions available for each type of conduct, that professional misconduct requires conduct that is substantially more grave than unsatisfactory professional conduct. 4. The limitation to s 537(2) – "[u]nless s 540 applies" - requires the Council to consider the possible application of that section. If s 540 applies, the statutory basis to commence proceedings in the Tribunal under s 537(2) is not enlivened. That is the clear meaning of the words "[u]nless section 540 applies". 5. A decision by the Council to commence proceedings in the Tribunal pursuant to s 537(2) can only be properly made after consideration is given to the operation and potential application of s 540. 6. To consider the potential application of s 540 it is necessary for the Council to consider all relevant information, including any exculpatory matters raised by the legal practitioner, or matters raised in mitigation. That is so because of the requirements of s 509(3), and also because of the nature of the decision to be made under s 537(2). The latter involves consideration of the seriousness of the conduct, and a prediction as to how the conduct might be viewed by the Tribunal. That can only be properly done by considering matters raised by the legal practitioner in defense or mitigation of the complaints. 7. The Council must be satisfied of the reasonable likelihood that the legal practitioner will be found by the Tribunal to have engaged in professional misconduct, unsatisfactory professional conduct (but not professional misconduct) or neither. This is a predictive task and one that must have regard to both the complaint, and any defence to it, and also matters relevant to the sanction that may be imposed. 8. In Murray v Legal Services Commissioner (1999) 46 NSWLR 224 the Court of Appeal considered the nature of the decision required to be made by the Council under section 155 of the Legal Profession Act 1987 (NSW), (a provision in similar terms to ss 537 – 540 of the 2004 Act). Sheller JA (with whom Priestley and Stein JJA agreed) said (at [88]): "I find it hard to imagine that the Council or the Commissioner would reach the level of satisfaction required without taking account of the legal practitioner's response to the complaint if the legal practitioner, under compulsion pursuant to s 152, or voluntarily, gave it. The duty of the Council or the Commissioner to act either by instituting proceedings in the tribunal or in some other way does not arise on a satisfaction or opinion that a prima facie case had been made out, so that any material favouring the legal practitioner may be ignored: compare Wentworth v Rogers [1984] 2 NSWLR 422 at 429 and 436. The duty of the Council or the Commissioner involves an attempt to predict the outcome of a hearing in the tribunal: compare Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 at 400, 402, 411. Ordinarily, a factor in this prediction would be the legal practitioner's answer to the complaint, if the legal practitioner gives one, or the failure to answer the complaint, if the legal practitioner gives none. These matters lead me to conclude that a council or the Commissioner cannot and does not reach the required satisfaction without providing the legal practitioner with a copy of the complaint and calling upon the legal practitioner to respond to it. Proper performance of the Commissioner's duty preserves, in the words of Lord Slynn of Hadley, the legal practitioner's 'right to know and to reply'." 1. Here, the Council's reasons (in the 2 June 2016 letter relevant to the Jacobs complaint, and the 3 June 2016 letter relevant to the Garlick complaint) do not refer to s 540 and the consideration of the seriousness of the conduct which must necessarily have been made. Since consideration of s 540 is a condition precedent to the proper exercise of the power provided by s 537(2) of the 2004 Act, the absence of reference to it in the reasons points to the failure of the Council to have regard to it. In turn there is a clear basis upon which to conclude that there has been jurisdictional error or, alternatively, error on the face of the record. 2. Whilst the defendant does not dispute that the Council was required to turn its mind to s 540 of the 2004 Act, and specifically to consider those matters in s 540(1)(b) before arriving at a state of satisfaction as to the matters set out in s 537(2), it argues that s 540 only applies if the Council formed the state of mind referred to in s 540(1)(b)(i), (ii) and (iii). If the Council did not form that state of mind, it is submitted that the section did not apply, including for the purposes of the operation of s 537(2). The Council contends that it was not required to give reasons for not having made a different decision (that is, a decision to proceed by way of summary disposition), and it was unnecessary to give express reasons as to the matters referred to in s 540(1)(b). 3. The Council relies in part upon a decision of Fagan J in Menon v Council of the Law Society of New South Wales [2016] NSWSC 1322, wherein his Honour said, at [45]: "The reasons need not also identify items of evidence which the Council discounts or facts which it considers insignificant or the basis upon which it expects arguments exculpatory of the solicitor will not be accepted." 1. So much may be accepted, but in this case, the absence of reference is not to marginal facts, or insignificant pieces of evidence, it is to matters which are conditions precedent to the exercise of the Council's power pursuant to s 537(2). Some account of the consideration given by the Council to the application of s 540 was necessary, both to permit the plaintiff to understand the Council's path of reasoning, and also to permit any court asked to review the decision to do so. 2. The standard of reasons necessary was set out (with reference to a different statutory scheme) in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at 501 [55] as follows: "The standard required of a written statement of reasons given by a medical panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the medical panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the medical panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion." 1. Part of the function of reasons is to allow those affected by a decision to understand the decision maker's determination. It is not possible to understand the basis upon which the Council concluded that s 540 did not apply, thus enlivening s 537(2), because it is not adverted to in the Council's reasons of 2 June 2016 and 3 June 2016. 2. The Council, upon having made factual findings adverse to the plaintiff, failed to consider or to explain whether and why, on those facts, there was a reasonable likelihood that the plaintiff would be found by the Tribunal to have engaged in professional misconduct. The statement of reasons need not have been lengthy, or have referred to every piece of evidence, but it was necessary to set out sufficient detail as to allow the plaintiff to understand why the defendant had determined that s 540 did not apply. This the Council did not do. Jurisdictional error in the exercise of the Council's functions occurred with respect to each of the ten decisions, and they must be set aside. 3. Having reached this conclusion it is not, as the parties conceded at the hearing of this matter, necessary to consider each of the specific complaints made against each of the ten decisions of the Council. orders 1. The decisions by the Council of the Law Society of New South Wales to commence proceedings in the Tribunal against the plaintiff pursuant to s 537(2) of the Legal Profession Act 2004 (NSW), as recorded in letters of 2 and 3 June 2016 are quashed, and set aside. 2. The Council of the Law Society of New South Wales is restrained from taking further steps in the proceedings commenced in the Civil and Administrative Tribunal (NSW) on the basis of the resolutions recorded in the letters of 2 and 3 June 2016. 3. The defendant is to pay the plaintiff's costs of these proceedings on an ordinary basis. ********** Amendments 30 June 2017 - 30.6.17 - Coversheet: Wingfoot citation amended to reflect CLR citation rather than ALR 30.6.17 - [50]: Wingfoot citation amended to reflect CLR citation rather than ALR DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2017