Law Society of New South Wales v Carver [2003] NSWADT 158

Law Society of New South Wales v Carver [2003] NSWADT 158

Although the Tribunal had jurisdiction to determine whether it had jurisdiction, the Informations were invalid because conditions precedent to their validity were absent, so there was no jurisdiction to hear the substantive disciplinary case. Because there had been no valid completed hearing capable of producing a finding about the Respondent's guilt, section 171E(2) of the Legal Profession Act 1987 did not empower an order for costs. The proceedings were dismissed as misconceived due to want of jurisdiction, with no order as to costs.

Jurisdiction
Australia
Judgment Date
27 June 2003
Procedural Posture
Legal Profession Disciplinary Proceedings Concerning Informations 8 of 1994 and 29 of 1998 / Applications Concerning Jurisdiction, Dismissal or Permanent Stay, Return of Exhibits, and Costs
Outcome
Proceedings dismissed; no order as to costs; exhibits to be returned to the tendering parties.
Legal Topics
['validity of Disciplinary Informations' 'conditions Precedent to Tribunal Jurisdiction' 'power to Determine Jurisdiction' 'costs Under Legal Profession Act 1987 Section 171 E' 'dismissal of Misconceived Proceedings']
['legal Profession Regulation' 'administrative Law' 'tribunal Jurisdiction' 'costs'] ['validity of Disciplinary Informations' 'conditions Precedent to Tribunal Jurisdiction' 'power to Determine Jurisdiction' 'costs Under Legal Profession Act 1987 Section 171 E' 'dismissal of Misconceived Proceedings']

Case Brief

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Procedural Posture

Legal Profession Disciplinary Proceedings Concerning Informations 8 of 1994 and 29 of 1998 / Applications Concerning Jurisdiction, Dismissal or Permanent Stay, Return of Exhibits, and Costs

Legal Issues

  1. 1 ['Whether the Tribunal had jurisdiction to hear and determine the substantive Informations despite defects arising from absence of conditions precedent.' 'Whether the Tribunal had jurisdiction to inquire into its own jurisdiction.' 'Whether the Tribunal had power to dismiss the proceedings or permanently stay them.' "Whether the Tribunal could order payment of the Respondent's costs from the Public Purpose Fund under section 171E(2) of the Legal Profession Act 1987 where the proceedings were invalid for want of jurisdiction." 'How the words "satisfied that the practitioner is not guilty" in section 171E(2) should be construed.']

Ratio Decidendi

Although the Tribunal had jurisdiction to determine whether it had jurisdiction, the Informations were invalid because conditions precedent to their validity were absent, so there was no jurisdiction to hear the substantive disciplinary case. Because there had been no valid completed hearing capable of producing a finding about the Respondent's guilt, section 171E(2) of the Legal Profession Act 1987 did not empower an order for costs. The proceedings were dismissed as misconceived due to want of jurisdiction, with no order as to costs.

Court Disposition

Proceedings dismissed; no order as to costs; exhibits to be returned to the tendering parties.

Orders

  • ['That the proceedings be dismissed.' 'No order as to costs of or incidental to these proceedings.' 'Exhibits held by the Tribunal will be returned to the tendering parties.']