NSW Bar Association -v- Howen [2003] NSWADT 117

NSW Bar Association -v- Howen [2003] NSWADT 117

The notice was sufficiently clear, was issued for the purpose of investigating Mr Leech's complaint, and the complaint had not been effectively withdrawn. Requests concerning costs and fees were capable of furthering the Commissioner's investigation; in any event, logically independent impermissible requests would be severable and would not invalidate the whole notice. The Respondent failed to comply with the valid notice without reasonable excuse, so s 152(4) made that failure professional misconduct.

Jurisdiction
Australia
Judgment Date
20 May 2003
Procedural Posture
Information Under Part 10 of the Legal Profession Act 1987 Alleging Professional Misconduct / Principal Matter; Decision on Liability With Matter to Be Relisted for Evidence and Submissions as to Orders
Outcome
Respondent found guilty of professional misconduct; matter to be relisted for evidence and further submissions as to orders.
Legal Topics
['professional Misconduct' 'failure to Comply With S 152 Notice' 'validity of Statutory Notice' 'investigation of Complaint' 'withdrawal of Complaint']
['legal Profession Regulation' 'professional Discipline'] ['professional Misconduct' 'failure to Comply With S 152 Notice' 'validity of Statutory Notice' 'investigation of Complaint' 'withdrawal of Complaint']

Case Brief

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Procedural Posture

Information Under Part 10 of the Legal Profession Act 1987 Alleging Professional Misconduct / Principal Matter; Decision on Liability With Matter to Be Relisted for Evidence and Submissions as to Orders

Legal Issues

  1. 1 ['Whether the notice dated 17 December 1999 issued under s 152(1) of the Legal Profession Act 1987 (NSW) was sufficiently clear.' 'Whether the notice was issued for the purpose of investigating a complaint within s 152(1).' 'Whether the complaint had been effectively withdrawn before the notice was issued.' 'Whether requests about costs and fees were capable of furthering the investigation of the complaint.' 'Whether any impermissible requests would render the whole notice invalid or were severable.' "Whether the Respondent's failure to comply with the notice was without reasonable excuse and constituted professional misconduct under s 152(4)."]

Ratio Decidendi

The notice was sufficiently clear, was issued for the purpose of investigating Mr Leech's complaint, and the complaint had not been effectively withdrawn. Requests concerning costs and fees were capable of furthering the Commissioner's investigation; in any event, logically independent impermissible requests would be severable and would not invalidate the whole notice. The Respondent failed to comply with the valid notice without reasonable excuse, so s 152(4) made that failure professional misconduct.

Court Disposition

Respondent found guilty of professional misconduct; matter to be relisted for evidence and further submissions as to orders.

Orders

  • ['That the Respondent is guilty of professional misconduct.' 'Matter to be relisted to receive evidence and further submissions as to the orders that should be made.']