Makowski v Legal Profession Admission Board (No 2) [2020] NSWSC 443

Makowski v Legal Profession Admission Board (No 2) [2020] NSWSC 443

The summons was dismissed because the first and second decisions challenged by the plaintiff had been superseded by the Legal Profession Admission Board's rule 29 decisions, which were the operative decisions and were not challenged, so certiorari would have no utility. In any event, the plaintiff failed to establish reviewable error in the Examinations Committee's application of rule 59(4), any denial of procedural fairness, any material error of fact or law, or any apprehended bias. The second application was out of time and substantially repeated the first application, and the Acting Executive Officer was not required to give advance notice or invite further submissions before...

Jurisdiction
Australia
Judgment Date
24 April 2020
Procedural Posture
Application for Judicial Review Seeking Relief in the Nature of Certiorari, and Other Relief Including Specific Performance, Damages and a Declaration / Principal Judgment After Hearing
Outcome
The summons is dismissed and the plaintiff is to pay the first defendant's costs.
Legal Topics
['certiorari' 'judicial Review Under Supreme Court Act 1970 (nsw), S 69' 'procedural Fairness' 'apprehended Bias' 'relevant and Irrelevant Considerations' 'error of Law on the Face of the Record' 'reasons for Administrative Decisions' 'legal Profession Admission Board Progression Rule' 'specific Performance' 'damages' 'constructive Trust']
['administrative Law' 'legal Profession Admission' 'civil Procedure' 'contract' 'equity'] ['certiorari' 'judicial Review Under Supreme Court Act 1970 (nsw), S 69' 'procedural Fairness' 'apprehended Bias' 'relevant and Irrelevant Considerations' 'error of Law on the Face of the Record' 'reasons for Administrative Decisions' 'legal Profession Admission Board Progression Rule' 'specific Performance' 'damages' 'constructive Trust']

Case Brief

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Procedural Posture

Application for Judicial Review Seeking Relief in the Nature of Certiorari, and Other Relief Including Specific Performance, Damages and a Declaration / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether relief in the nature of certiorari was available where the delegate and Examinations Committee decisions had been superseded by rule 29 decisions of the Legal Profession Admission Board.' "Whether the Examinations Committee erred in law in applying rule 59(4) of the NSW Admission Board Rules 2015 to the plaintiff's application to take subjects out of order." 'Whether the Examinations Committee denied procedural fairness by failing to consider all submissions or by giving brief reasons.' 'Whether any alleged errors of fact amounted to reviewable error, including by taking into account irrelevant considerations or proceeding on wrong assumptions.' 'Whether the alleged brevity of reasons could establish apprehended bias or lack of impartiality.' 'Whether the Acting Executive Officer denied procedural fairness by refusing to process the second student course application.' 'Whether the plaintiff was entitled to specific performance, damages or a declaration concerning the $90 application fee.']

Ratio Decidendi

The summons was dismissed because the first and second decisions challenged by the plaintiff had been superseded by the Legal Profession Admission Board's rule 29 decisions, which were the operative decisions and were not challenged, so certiorari would have no utility. In any event, the plaintiff failed to establish reviewable error in the Examinations Committee's application of rule 59(4), any denial of procedural fairness, any material error of fact or law, or any apprehended bias. The second application was out of time and substantially repeated the first application, and the Acting Executive Officer was not required to give advance notice or invite further submissions before...

Court Disposition

The summons is dismissed and the plaintiff is to pay the first defendant's costs.

Orders

  • ['The summons is dismissed.' "The plaintiff is to pay the first defendant's costs." "Liberty to the parties to apply on three days' notice should the parties wish to contend for a different costs order."]