This decision involved an application for summary judgment of three separate originating applications for judicial review of decisions of the Legal Services Commissioner to dismiss two complaints and to take no further action in respect of a third complaint. Justice Jackson summarily dismissed the originating applications, finding that they were not decisions to which the Judicial Review Act 1991 applied, and therefore were not subject to judicial review under that Act.
12 June 2017
In this interesting recent matter, the Legal Services Commissioner sought to have three separate originating applications for judicial review summarily dismissed on the grounds that no reasonable basis for the originating applications was disclosed or the applications were frivolous or vexatious. . The Commissioner argued that each of the decisions challenged by the originating applications was not a decision to which ss 4 and 20 of the Judicial Review Act 1991 (“JRA”) applied within the meaning of “a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)”. .
Broadly, each of the originating applications arose from a complaint made by the applicant about an Australian legal practitioner or a law practice employee who was involved in his unsuccessful defence of a murder charge. , . Over five years after the conduct allegedly occurred, the applicant complained to the Commissioner. –. Those three complaints canvassed allegations of unprofessional conduct or professional misconduct or misconduct as a law practice employee, and conducting legal practice as an illegal operator. . The Commissioner elected to dismiss two of the complaints and to take no further action in respect of the third, and notified the applicant accordingly. –.
Unlawful operator complaint
The respondent submitted that its decision to no longer handle the applicant’s complaint that the member of the firm responsible for his matter acted as an illegal operator was not one to which the JRA applied (and therefore not open to judicial review under the Act). Referring to Leadpoint Pty Ltd v LSC  QSC 254, in which his Honour previously determined that a decision no longer to deal with a matter is one that does not itself affect any relevant rights or obligations and accordingly not one to which the JRA applies,  his Honour endorsed the Commissioner’s challenge to the originating application against the decision to no longer deal with the complaint. .
Complaints made over three years after relevant conduct
Section 430 of the Legal Profession Act 2007 (“LPA”) provides the Commissioner with an ample discretion regarding the handling of complaints which are made over three years after the conduct concerned. Unless one of the two alternative qualifying conditions is met, the Commissioner must dismiss the complaint without undertaking a full investigation. .
Relying upon Leadpoint Pty Ltd v LSC  QSC 254 and Murphy v LSC  QSC 174 the Commissioner argued that the decision to dismiss a complaint pursuant to s 430(2)(b) was not a decision to which the JRA applied. . In Murphy v LSC  QSC 174, his Honour found that a decision of the Commissioner to dismiss a complaint or investigation matter pursuant to s 448(1) of the LPA was not a decision to which the JRA applies. . The relevant enquiry here was whether the same reasoning can be applied to a dismissal under s 430(2)(b). . In his Honour’s view, that was indeed the case. He observed that, similarly to Murphy v LSC  QSC 174, a decision to dismiss a complaint under s 430(2)(b) does not affect legal rights and obligations nor alter an applicant’s right to make a subsequent complaint. . Given that commonality, in his view the decisions made by the Commissioner to dismiss the complaints could not be properly regarded as decisions to which the JRA applied. .
A complaint that does not disclose misconduct by a law practice employee
Adopting similar reasoning, and noting the pathway for summary dismissal of a complaint provided for by s 432 of the JRA (under which the Commissioner’s decision to dismiss the part of the applicant’s complaint alleging misconduct on behalf of a law practice employee was made), in his Honour’s view, that decision was not one to which the JRA applied. .
Given the outcome, it was ordered that each of the Commissioner’s applications to dismiss the originating application be allowed whilst each of the originating applications be dismissed. .
A de Jersey