Livers v Legal Services Commissioner [2018] NSWCA 319

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Livers v Legal Services Commissioner [2018] NSWCA 319 Hearing dates: 3 December 2018 Decision date: 14 December 2018 Before: Gleeson JA at [1] Barrett AJA at [94] Simpson AJA at [95] Decision: (1) Appeal allowed in relation to ground 1.

(2) Set aside order 1 of the Tribunal made on 3 August 2017 and orders 1 and 2 made by the Tribunal on 7 September 2018 and in place order:

(a) the proceedings be remitted to the Tribunal to be determined according to law;

(b) costs of the proceedings before the Tribunal be determined by the Tribunal upon the remittal;

(3) The order made by Beazley P on 22 October 2018 that the practitioner's name be reinstated on the Roll of lawyers until further order, be continued until the determination of the rehearing by the Tribunal, or earlier further order.

(4) The first respondent to pay the appellant's costs of the appeal. Catchwords: ADMINISTRATIVE LAW – procedural fairness – where solicitor applied for funding in respect of client's workers compensation claim for hearing aids –where allegation that solicitor failed to disclose client's previous claim – where Commissioner sought disciplinary action against solicitor – where Tribunal found solicitor guilty of professional misconduct and removed his name from the Roll of lawyers – Legal Profession Act 2004 (NSW), s 562(2)(a) – whether Tribunal denied solicitor procedural fairness by determining allegation not pleaded by Commissioner – whether Tribunal's finding that solicitor altered date of client statement influenced its findings in respect of other matters – whether solicitor deprived of opportunity of a successful outcome – whether the matter should be remitted for re-hearing Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, cl 23(1), cl 29(4)(a) Evidence Act 1995 (NSW), s 140 Legal Profession Act 2004 (NSW), ss 553, 555, 562 Supreme Court Act 1970 (NSW), s 75A Workers Compensation Act 1987 (NSW), ss 59A, 60, 66, 66A, 67 Workers Compensation Amendment (Existing Claims) Regulation 2014 (NSW), Sch 1, cl 28(1)(b) Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 51.53 Cases Cited: Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 Smith v New South Wales Bar Association (1992) 176 CLR 256 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 Category: Principal judgment Parties: Peter James Livers (Appellant) Legal Services Commissioner (Respondent) Representation: Counsel: S E J Prince SC / E L Olivier (Appellant) T L Wong / B Cameron (Respondent)