Livers v Legal Services Commissioner [2018] NSWCA 319

Livers v Legal Services Commissioner [2018] NSWCA 319

The Tribunal failed to afford procedural fairness to the practitioner by determining an allegation not pleaded nor put to the practitioner, depriving him of the opportunity of a successful outcome. The decisions were thus invalid and must be set aside and remitted.

Parties
Appellant: Peter James Livers; Respondent: Legal Services Commissioner
Jurisdiction
Australia
Judgment Date
14 December 2018
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed in relation to ground 1; orders of Tribunal set aside; proceedings remitted to Tribunal; practitioner’s name reinstated on Roll pending rehearing; first respondent to pay appellant’s costs of appeal.
Legal Topics
Procedural Fairness, Professional Misconduct, Legal Practitioner Disciplinary Proceedings
Administrative Law Professional Discipline Procedural Fairness Professional Misconduct Legal Practitioner Disciplinary Proceedings

Case Brief

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Parties

Peter James Livers

Appellant

Legal Services Commissioner

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the Tribunal denied procedural fairness by determining an allegation not pleaded by the Commissioner
  2. 2 Whether the Tribunal's finding that the practitioner altered the date of the client statement influenced its findings in other matters
  3. 3 Whether the practitioner was deprived of an opportunity of a successful outcome

Ratio Decidendi

The Tribunal failed to afford procedural fairness to the practitioner by determining an allegation not pleaded nor put to the practitioner, depriving him of the opportunity of a successful outcome. The decisions were thus invalid and must be set aside and remitted.

Court Disposition

Appeal allowed in relation to ground 1; orders of Tribunal set aside; proceedings remitted to Tribunal; practitioner’s name reinstated on Roll pending rehearing; first respondent to pay appellant’s costs of appeal.

Orders

  • Appeal allowed in relation to ground 1.
  • 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.