Barwick v Law Society of New South Wales [2000] HCA 2

Barwick v Law Society of New South Wales [2000] HCA 2

Because the Law Society did not comply with mandatory procedural requirements under Division 5 regarding investigation and failed to obtain Commissioner's acceptance for out-of-time complaints, the Tribunal was not validly seized of jurisdiction under Part 10. Amendment under s 167A could not cure these fundamental deficiencies. Accordingly, proceedings in respect of complaints particularised in the informations were invalid, and prohibition should issue.

Parties
Appellant: Ross Garfield Barwick; First Respondent: Law Society of New South Wales; Second Respondent: Administrative Decisions Tribunal (formerly Legal Services Tribunal); Third Respondent: Third Respondent (former partner; not actively involved)
Jurisdiction
Australia
Judgment Date
03 February 2000
Procedural Posture
Appeal and Application for Prohibition Order / High Court of Australia on Appeal From the Supreme Court of New South Wales (court of Appeal)
Outcome
Appeal allowed; orders by Court of Appeal set aside; prohibition issued.
Legal Topics
Statutory Construction, Disciplinary Proceedings Against Legal Practitioners, Jurisdiction of Tribunals, Limitation Periods for Complaints, Natural Justice
Legal Profession Law Administrative Law Statutory Construction Disciplinary Proceedings Against Legal Practitioners Jurisdiction of Tribunals Limitation Periods for Complaints Natural Justice

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Parties

Ross Garfield Barwick

Appellant

Law Society of New South Wales

First Respondent

Administrative Decisions Tribunal (formerly Legal Services Tribunal)

Second Respondent

Third Respondent (former partner; not actively involved)

Third Respondent

Procedural Posture

Appeal and Application for Prohibition Order / High Court of Australia on Appeal From the Supreme Court of New South Wales (court of Appeal)

Legal Issues

  1. 1 Whether the requirements of Division 5 of Part 10 of the Legal Profession Act 1987 (NSW) regarding investigation of complaints were complied with prior to instituting proceedings in the Tribunal;
  2. 2 Whether the 3-year time limitation for complaints in s 138 of the Act applied to complaints initiated by the Council, and if so, whether discretionary acceptance out of time by the Commissioner was necessary;
  3. 3 Whether s 167A of the Act permitted amendment of informations to include allegations of stale (out of time) conduct.

Ratio Decidendi

Because the Law Society did not comply with mandatory procedural requirements under Division 5 regarding investigation and failed to obtain Commissioner's acceptance for out-of-time complaints, the Tribunal was not validly seized of jurisdiction under Part 10. Amendment under s 167A could not cure these fundamental deficiencies. Accordingly, proceedings in respect of complaints particularised in the informations were invalid, and prohibition should issue.

Court Disposition

Appeal allowed; orders by Court of Appeal set aside; prohibition issued.

Orders

  • Appeal allowed.
  • Declarations and order of the NSW Court of Appeal dated 16 July 1998 set aside.