Kawicki v The Legal Services Commissioner & Anor [2003] NSWCA 333

Kawicki v The Legal Services Commissioner & Anor [2003] NSWCA 333

The appeal was dismissed because the Commissioner's conclusion that he was not satisfied of a reasonable likelihood of disciplinary findings against Mr Cowdery was not affected by reviewable error. The matters relied on by the Commissioner were relevant to the statutory test, including the existence of debate about whether the letters misrepresented the Court of Criminal Appeal's judgment and the context that the Director-General had the judgment. The decision was not Wednesbury unreasonable, so the primary judge was correct to dismiss the proceedings, whether or not the impugned conduct was in connection with the practice of law.

Jurisdiction
Australia
Judgment Date
14 November 2003
Procedural Posture
Appeal / Appeal From Burchett Aj's Dismissal of the Appellant's Supreme Court Application Challenging the Legal Services Commissioner's Decision to Dismiss His Complaint
Outcome
Appeal dismissed
Legal Topics
['professional Misconduct' 'unsatisfactory Professional Conduct' 'legal Services Commissioner Decision' 'judicial Review' 'wednesbury Unreasonableness' 'director of Public Prosecutions Advice' 'ex Gratia Compensation']
['professional Responsibility' 'administrative Law'] ['professional Misconduct' 'unsatisfactory Professional Conduct' 'legal Services Commissioner Decision' 'judicial Review' 'wednesbury Unreasonableness' 'director of Public Prosecutions Advice' 'ex Gratia Compensation']

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Procedural Posture

Appeal / Appeal From Burchett Aj's Dismissal of the Appellant's Supreme Court Application Challenging the Legal Services Commissioner's Decision to Dismiss His Complaint

Legal Issues

  1. 1 ["Whether the Legal Services Commissioner's decision that there was no reasonable likelihood of a finding of professional misconduct or unsatisfactory professional conduct was infected by reviewable error." "Whether the Commissioner took irrelevant considerations into account in assessing whether Mr Cowdery's letters misrepresented the Court of Criminal Appeal's judgment." "Whether the Commissioner's decision was so unreasonable that no reasonable authority could properly have arrived at it." "Whether it was necessary to decide if Mr Cowdery's conduct occurred in connection with the practice of law."]

Ratio Decidendi

The appeal was dismissed because the Commissioner's conclusion that he was not satisfied of a reasonable likelihood of disciplinary findings against Mr Cowdery was not affected by reviewable error. The matters relied on by the Commissioner were relevant to the statutory test, including the existence of debate about whether the letters misrepresented the Court of Criminal Appeal's judgment and the context that the Director-General had the judgment. The decision was not Wednesbury unreasonable, so the primary judge was correct to dismiss the proceedings, whether or not the impugned conduct was in connection with the practice of law.

Court Disposition

Appeal dismissed

Orders

  • ['Appeal to be dismissed.' "The appellant to pay Mr Cowdery's costs of the appeal and the first respondent's costs on a submitting appearance basis."]