CAPÍTULO 4. ANÁLISIS DE RESULTADOS
4.2 Análisis de resultados de la encuesta de medición
4.2.4 De acuerdo a lo presupuestado, ¿en qué porcentaje de tus obras
4.94 Non-compliance with the procedures for the investigation of complaints under Part 10 may deprive the Tribunal of jurisdiction over a complaint. The recent cases of Carson v Legal Services Commissioner,133 Law Society of New South Wales v M,134 Barwick v Law Society of New South Wales135 and Murray v Legal Services Commissioner136 illustrate this.
4.95 In Carson v Legal Services Commissioner, the New South Wales Court of Appeal ordered that disciplinary proceedings against a solicitor be permanently stayed as a result of an abuse of process by the LSC that consisted of the commencement of disciplinary proceedings which were so clearly untenable that they were “foredoomed to fail”,137 inexcusable delay in conducting an investigation138 and failure to satisfy the requirements of procedural fairness.139
4.96 In Law Society of New South Wales v M, the Tribunal held that it had no jurisdiction to hear disciplinary proceedings against a solicitor as a result of the LSC’s failure to give the solicitor reasons for deciding to refer a complaint against him to the Tribunal.140
4.97 In Barwick v Law Society of New South Wales the High Court held that the Tribunal did not have jurisdiction to hear disciplinary proceedings against a solicitor as a result of failure by the Law
133. Carson v Legal Services Commissioner [2000] NSWCA 308 (3 November 2000).
134. Law Society of New South Wales v M [2000] NSWADT 137.
135. Barwick v Law Society of New South Wales (2000) 74 ALJR 419.
136. Murray v Legal Services Commissioner (1999) 46 NSWLR 224.
137. Carson v Legal Services Commissioner [2000] NSWCA 308 (3 November 2000) per Sheller JA at para 258.
138. Carson v Legal Services Commissioner [2000] NSWCA 308 (3 November 2000) per Sheller JA at para 265.
139. Carson v Legal Services Commissioner [2000] NSWCA 308 (3 November 2000) per Sheller JA at para 46.
140. The LSC is required to give reasons under s 171J of the Legal Profession Act 1987 (NSW). See para 4.58-4.61.
The complaints handling process
Society to investigate complaints, non-compliance by the Law Society with the time limit for complaints and misuse by the Tribunal of its power to amend informations.
4.98 Finally, in Murray v Legal Services Commissioner the Court of Appeal held that the LSC’s decision to institute Tribunal proceedings against a solicitor were void because the LSC denied the solicitor procedural fairness during his investigation into a complaint about the solicitor.
4.99 In IP 18 the Commission asked whether the consequences of non-compliance with the procedural requirements of Part 10 should be changed (Issue 22-24).
4.100 Submissions supported amending Part 10 to allow practitioners to waive the procedural requirements, and to provide for deemed waiver in certain circumstances.141
4.101 In Barwick v Law Society of New South Wales Justice Kirby commented that:142
Jurisdiction over the professional conduct and competence of legal practitioners exists for the fundamental purpose of protecting the public. In such circumstances the serious delays in disposing of the allegations against Mr Barwick (and the other legal practitioner involved) must occasion grave concern.
The interests of the public, of complainants and of the legal practitioners themselves require that such matters be dealt with lawfully and fairly but also with more efficiency and expedition than has been the case here. ... Unhappily, the recent experience of this Court suggests that such delays may represent the norm, not an exception.
4.102 The Commission considers that a practitioner should not be able to rely on non-compliance by the LSC, the Law Society or the Bar Association with the procedural requirements of Part 10 to invalidate Tribunal proceedings unless the procedural irregularity
141. Law Society of NSW, Submission at 13; NSW Bar Association, Submission at 40; Victorian Legal Ombudsman, Submission at 40.
142. Barwick v Law Society of New South Wales (2000) 74 ALJR 419 at para 80 per Kirby J.
has caused the practitioner substantial injustice. To permit procedural defects to invalidate Tribunal proceedings when no substantial injustice has resulted creates unnecessary complexity and inefficiency in the administration of Part 10 and contributes to the serious delays referred to by Justice Kirby.
4.103 Accordingly the Commission recommends that Part 10 should be amended to provide that disciplinary proceedings against practitioners are not invalidated by non-compliance by the LSC, the Law Society or the Bar Association with the procedural requirements for investigating and referring complaints to the Tribunal, unless this has resulted in substantial injustice.
The Commission’s recommendation is adapted from the Bankruptcy Act 1966 (Cth) s 306(1).
4.104 The Commission has also considered whether this recommended provision should extend to procedural irregularities occurring in the Tribunal itself. The Commission has concluded that this would create an undesirable inconsistency between the basis for appeal or judicial review of decisions of the Tribunal in the Legal Services Division and the basis for appeal or review applying in other Divisions, where no such limitation applies.
Recommendation 15
Part 10 of the Legal Profession Act 1987 (NSW) should be amended to provide that proceedings under Part 10 are not invalidated by a formal defect or an irregularity in the making or referral of the complaint to the Tribunal or the decision-making of the Commissioner, the Law Society or the Bar Association unless the court or Tribunal before which the objection on that ground is made is of the opinion that substantial injustice has been caused by the defect or irregularity and that injustice cannot be remedied by an order of the court or Tribunal.
Powers of the LSC and Councils after an investigation