Kawicki v Legal Services Commissioner & Anor [2002] NSWSC 1072

Kawicki v Legal Services Commissioner & Anor [2002] NSWSC 1072

The Director of Public Prosecutions' letters to the Attorney-General's Department about whether an ex gratia payment should be made concerned the circumstances and conduct of a prosecution and were written in the exercise of statutory administrative or executive functions, not in connection with the practice of law. In any event, the Legal Services Commissioner was entitled under s 155 of the Legal Profession Act 1987 to dismiss the complaint because he was not satisfied there was a reasonable likelihood of a disciplinary finding, and no reviewable error, unreasonableness, irrelevant consideration, or failure to decide the correct legal question was established.

Jurisdiction
Australia
Judgment Date
15 November 2002
Procedural Posture
Administrative Law Proceeding Seeking Declaratory Relief and an Order Setting Aside the Legal Services Commissioner's Dismissal of a Professional Misconduct Complaint / Supreme Court Judgment on Application
Outcome
Application dismissed with costs.
Legal Topics
['director of Public Prosecutions' 'professional Misconduct' 'unsatisfactory Professional Conduct' 'practice of Law' 'judicial Review' 'legal Services Commissioner Complaints' 'ex Gratia Payment Advice']
['administrative Law' 'legal Profession Regulation' 'criminal Prosecution Administration'] ['director of Public Prosecutions' 'professional Misconduct' 'unsatisfactory Professional Conduct' 'practice of Law' 'judicial Review' 'legal Services Commissioner Complaints' 'ex Gratia Payment Advice']

Case Brief

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Procedural Posture

Administrative Law Proceeding Seeking Declaratory Relief and an Order Setting Aside the Legal Services Commissioner's Dismissal of a Professional Misconduct Complaint / Supreme Court Judgment on Application

Legal Issues

  1. 1 ["Whether the Director of Public Prosecutions, in writing letters to the Attorney-General's Department about the plaintiff's request for an ex gratia payment, was acting in connection with the practice of law within s 127 of the Legal Profession Act 1987." "Whether the Legal Services Commissioner erred in dismissing the plaintiff's complaint under s 155 of the Legal Profession Act 1987." 'Whether the Legal Services Commissioner was required to notify Mr Cowdery and seek his response before completing the investigation where no adverse determination was contemplated.' "Whether the Commissioner's decision was so unreasonable that no reasonable person could have reached it, took irrelevant considerations into account, or failed to decide the correct legal question."]

Ratio Decidendi

The Director of Public Prosecutions' letters to the Attorney-General's Department about whether an ex gratia payment should be made concerned the circumstances and conduct of a prosecution and were written in the exercise of statutory administrative or executive functions, not in connection with the practice of law. In any event, the Legal Services Commissioner was entitled under s 155 of the Legal Profession Act 1987 to dismiss the complaint because he was not satisfied there was a reasonable likelihood of a disciplinary finding, and no reviewable error, unreasonableness, irrelevant consideration, or failure to decide the correct legal question was established.

Court Disposition

Application dismissed with costs.

Orders

  • ["The plaintiff's proceeding is dismissed with costs." 'No restriction is placed on the order for costs in favour of the Legal Services Commissioner.']