Hastwell v Legal Services Commissioner

1. [1]

   The plaintiff, Mr Hastwell, seeks judicial review of two decisions made by the Legal Services Commissioner (“the Commissioner”) on 15 March and 31 May 2018. Mr Hastwell asserts a number of jurisdictional errors. He claims orders in the nature of certiorari setting aside the decisions made, and mandamus remitting the matter for redetermination by “a separate team” within the office of the Legal Services Commissioner.

Representation

1. [2]

   Mr Hastwell, who is legally qualified, represented himself in the proceedings. The Commissioner adopted the role of contradictor in purported conformity with the exception recognised in The Queen v Australian Broadcasting Tribunal and Ors; Ex parte Hardiman & Ors (1980) 144 CLR 13; [1980] HCA 13 at 35 – 36 and was represented by Ms R Withana of Counsel. From the Commissioner’s second affidavit affirmed on 6 February 2019, I am satisfied that the defendant wrote to both Mr Lorraine, the solicitor against whom Mr Hastwell’s complaints were primarily directed, and the Attorney General to ascertain whether they wished to participate in the proceedings as an active contradictor. Both declined (see Affidavit, John McKenzie, p.19 and 29).

2. [3]

   In Ex parte Hardiman the unanimous High Court said at 35:

3. [4]

   Ms Withana also referred me to TXU Electrical Ltd v Office of the Regulator General (2001) 3 VR 93; [2001] VSC 4 at [42] – [45], Ashley J where his Honour said at [44]:

4. [5]

   It should be noted that there are important, different features in the present case. The Commissioner is not a tribunal as such, but in substance investigates conduct complaints, inter alia, made by clients, or others, against lawyers or law practices. The Commissioner may bring disciplinary proceedings against law practices in the Civil and Administrative Tribunal: s 300 Legal Profession Uniform Law (NSW) (“Uniform Law”); s 137 Legal Profession Uniform Law Application Act 2014 (NSW) (“Application Act”). Section 24(4) Application Act may also have some significance. It is in the following terms:

5. [6]

   It seems to me that the role adopted by the Commissioner in this matter, if covered by the Ex parte Hardiman principle, did not extend beyond the limited role envisaged. Given that, though legally qualified, Mr Hastwell was self-represented the involvement of the Commissioner as an active participant in the proceedings in the limited sense discussed was of considerable assistance to me in refining the issues for determination.

6. [7]

   On 29 March 2017 Mr Hastwell made a complaint and a supplementary complaint of unsatisfactory professional conduct to the Commissioner about the conduct of a matter on his behalf by the law practice, Harmers Workplace Lawyers and one of its employed solicitors, Paul Lorraine. The complaint concerned the lawyer’s treatment of a medico-legal report by Dr Parmegiani, a consultant psychiatrist, qualified by the law practice to provide evidence on Mr Hastwell’s behalf in proceedings in the Australian Human Rights Commission (“AHRC”). Mr Hastwell regarded the report as unfavourable. He also complained about the circumstances of the termination of his retainer with Harmers Workplace Lawyers by the lawyers just three days before a conciliation conference in the AHRC fixed for 11 November 2016 to explore the prospect of the matter settling.

7. [8]

   On 15 March 2018 the Legal Services Commission dismissed a number of Mr Hastwell’s particulars of complaint as “lacking in substance” (CB 60) under s 277 Uniform Law. For completeness, I will set out the complaints which were dismissied and which form the subject of this application below. Allegation 1.2 (b) was a complaint that Mr Lorraine was grossly negligent in acting for Mr Hastwell in drafting a deficient letter of instruction to Dr Parmegiani. Allegation 1.2(f) was that Mr Lorraine was negligent because he was unable to identify errors in Dr Parmegiani’s report and failed to realise that it would be inadmissible in evidence or have little to no probative weight. Allegation 2.11 asserted that Mr Lorraine’s termination of the retainer with Mr Hastwell was without reasonable basis.

8. [9]

   On 10 May 2018 Mr Hastwell sought an internal review of the decision under s 313 Uniform Law but on 31 May 2018 the Commissioner exercised his discretion not to conduct such a review.

Issues

1. [10]

   Logically anterior to the question of whether the impugned decisions are vitiated by jurisdictional error is the Commissioner’s argument that they are not amenable to an order in the nature of certiorari, or mandamus. After I summarise the decisions and the statutory framework in which they were made, I will address that question first.

2. [11]

   As I set out below (at [65]), Mr Hastwell relied upon ten matters said to constitute jurisdictional error. They cover a range of matters which fall into categories which may be capable of giving rise to jurisdictional error when made good and if the error is material. I will deal with these individually later in my reasons.

The statutory framework

1. [12]

   By s 4 of the Application Act the Legal Professional Uniform Law Application Act 2014 of Victoria was adopted and applies as a law of New South Wales as if it were an Act enacted by the New South Wales Parliament. The Application Act also makes various provisions relevant to identifying local regulatory authorities and designated tribunals to give content to provisions of the Uniform Law as applied in this State. Other adaptations are also enacted. It is unnecessary to descend into all of the detail.

2. [13]

   By s 22 of the Application Act, the Governor may on the recommendation of the Attorney General appoint a person to be the NSW Legal Services Commissioner, referred to in the Application Act as the NSW Commissioner. The functions of the Commissioner are those conferred on him (or her) by the Uniform Law, the Application Act and any other Act. As I have said already, the Commissioner has standing to appear in this Court when it is exercising its function in relation to the control, supervision and discipline of the legal profession.

3. [14]

   By s 28 of the Application Act the Commissioner has the power of delegation of his (or her) functions.

4. [15]

   Chapter 5 of the Uniform Law, by s 260, provides a framework for the resolution of disputes or issues between clients and law practices; a scheme for the discipline of legal practitioners; and the monitoring, promotion and enforcement of legal professional standards.

5. [16]

   Part 5.2 Uniform Law deals with complaints. It is important to bear in mind that a complaint may be about a “consumer matter” or a “disciplinary matter” or both: s 268 Uniform Law. It is common ground the matters, the subject of the impugned decisions were complaints about disciplinary matters.

6. [17]

   By s 266 Uniform Law, any person, or body or “the designated local regulatory authority” may make or initiate a complaint, for present purposes, “containing a disciplinary matter”. For the purpose of Ch 5 Uniform Law, the Commissioner is the designated local regulatory authority (s 11(1) Application Act).

7. [18]

   A disciplinary matter is defined by s 270 Uniform Law as “so much of a complaint about a lawyer or a law practice as would, if the conduct concerned were established, amount to unsatisfactory professional conduct or professional misconduct”.

8. [19]

   Under s 273 Uniform Law, a complainant may withdraw a complaint and no further action will be taken with respect to a consumer matter but the Commissioner is authorised to continue to investigate or proceed with disciplinary matters “despite the withdrawal”.

9. [20]

   It is important to bear in mind the provisions of s 275 Uniform Law which is in the following terms:

10. [21]

    Section 276 Uniform Law states that the Commissioner “must conduct a preliminary assessment of a complaint”. In doing so, the Commissioner is not bound by the rules of evidence but may inform himself (or herself) on any matter as he (or she) thinks fit.

11. [22]

    Section 277 Uniform Law is the provision under which the decision of 15 March 2018 was made. So far as is material, it is in the following terms:

12. [23]

    Part 5.4 deals with disciplinary matters. Sections 296 and 297 provide definitions of unsatisfactory professional conduct and professional misconduct respectively. It is unnecessary for present purposes to set them out. Under s 299 Uniform Law where a complaint about a disciplinary matter involving unsatisfactory conduct proceeds to investigation, and the respondent lawyer or law practice has been given the opportunity to be heard, the Commissioner has wide powers to determine it. Under s 300 Uniform Law, the Commissioner, and not the complainant, has the power the initiate and prosecute proceedings before the NSW Civil and Administrative Tribunal (“NCAT”) if he (or she) is of the opinion that the alleged conduct may amount to either unsatisfactory professional conduct that would more appropriately be dealt with by NCAT or professional misconduct.

13. [24]

    By s 312 Uniform Law, the Commissioner’s determination under Ch 5 “is final, except as provided by” Part 5.6 concerning appeal or review. Only the respondent lawyer or law practice, not the complainant, may appeal to NCAT or seek a review by it of a Commissioner’s determination under, inter alia, s 299, subject to certain not presently relevant statutory conditions: s 314 Uniform Law.

14. [25]

    The second impugned decision was made under s 313 Uniform Law. It is in the following terms:

15. [26]

    By s 315 Uniform Law, the Commissioner has a duty “to deal with all complaints properly made” and to deal with them in accordance with the Uniform Law and the Legal Profession Uniform General Rules 2015 (NSW) (“Uniform Rules”) made thereunder. Under s 316 Uniform Law, it is the duty of the Commissioner when exercising, or considering whether or how to exercise “any applicable discretions … to act in a fair manner, having regard to the respective interests of the complainant and the respondent and to the public interest”.

16. [27]

    Under s 318 Uniform Law, the Commissioner is to give the complainant and the respondent lawyer written notice of a decision, inter alia, to close the complaint, or a decision made as a result of an internal review in connection with the complaint.

17. [28]

    By s 319 Uniform Law, the rules of procedural fairness to the extent to which they are not inconsistent with the express provisions of the Uniform Law or Uniform Rules apply to the investigation or determination of complaints, the making of other decisions in respect of complaints, and the procedures to be followed in respect of complaints. But, as I have pointed out s 277(4) is expressed in terms which would be inconsistent with the provisions of s 319 in relation to a decision to close a complaint after its preliminary assessment.

The impugned decisions

1. [29]

   It is important to bear in mind that the complaints closed by the Commissioner under s 277(1)(a) Uniform Law on the basis that they were lacking in substance were but a subset of much broader particulars of complaint that are yet to be determined by the Commissioner. As the letter to Mr Hastwell of 15 March 2018, forwarded in compliance with s 279 Uniform Law, makes clear, four complaints were closed and fourteen were to be subject to further investigation. I say fourteen because the Commissioner said that those remaining “allegations” were: 1.1, 1.2(a), (c), (d), (e) and (g) and allegations 2.19 to 2.9. Those closed were allegations 1.2(b) and (f) and allegations 2.10 and 2.11. Of these, allegation 2.10 is no longer in issue. It was resolved as part of a “consumer matter” relating to the fees charged by the law practice. I will put that matter to one side.

2. [30]

   The Commissioner’s decision (CB 60 – 68) is very detailed. The Commissioner’s approached his task on the basis that substantiation of a complaint containing a disciplinary matter, which depends upon satisfaction that the conduct complained of, if established, amounts to unsatisfactory professional conduct or professional misconduct, requires satisfaction to the civil standard of proof as explained by Dixon J (as the Chief Justice then was) in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 361 – 2. Having set out the familiar quote, the Commissioner said:

3. [31]

   Having set out the statutory definitions of unsatisfactory professional conduct and professional misconduct in accordance with s 296 and 297 Uniform Law respectively, which it is unnecessary to recite here, the Commissioner dealt with the specific matters, the subject of the decision.

4. [32]

   The first matter is:

5. [33]

   The Commissioner points out that Mr Hastwell, who is “a comparatively experienced solicitor” specifically approved in advance sending Dr Parmegiani the same letter that had been sent to another medical practitioner, Dr Mumme, though he queried whether it was appropriate to ask the expert to provide an opinion about whether Mr Hastwell had been “discriminated against or victimised” as the answer to those questions depended upon, in part the legal standard (CB 62 - 63).

6. [34]

   The Commissioner gave five reasons for his opinion that “this particular is and would not be substantiated” (CB 63). First, he was of the view that Dr Parmegiani had not been asked to provide an opinion conditioned by reference to a legal standard. He regarded it as not “improper or inappropriate” or negligent to ask Dr Parmegiani to provide opinions about “apportionment” among causes and matters of “extent” (CB 63). Secondly, the Commissioner did not regard the omission of a copy of Mr Hastwell’s letter by which his complaint was brought before the AHRC on 24 March 2016 as “a major issue” given the body of material that was provided (CB 64). The Commissioner accepted that the letter could have been included but he was not satisfied that there was any major or material failing arising from the omission. He was not satisfied that it was “inappropriate or improper, or more importantly grossly negligent” of Mr Lorraine to exclude the document (CB 64).

7. [35]

   Thirdly, the failure to mention that a claim was being brought under the Disability Discrimination Act 1992 (Cth) and for breach of contract in addition to the claim under the Sex Discrimination Act 1984 (Cth), was not grossly negligent, even if it may have been better if all causes of action had been mentioned (CB 64).

8. [36]

   Fourthly, the inclusion of questions seeking an opinion about Mr Hastwell’s “ability to pursue the claim” did not constitute gross negligence (CB 65). Though it was unclear why they were included, they were “minor to the key opinion evidence … being sought” (CB 65).

9. [37]

   Fifthly, the consideration that the letter was “inconsistent” with a letter to another expert which did include the AHRC letter was lacking in substance for the same reasons explained in the second ground (CB 65).

10. [38]

    Particular 1.2(f) was expressed by the Commissioner in the following terms:

11. [39]

    The three reasons were, first, the Commissioner said that it could “at least be reasonably contended” that the opinions of Dr Parmegiani “were so fundamental and damaging” to Mr Hastwell’s claims that there would be “no real value, or no real prospects”, of the solicitors attempting to clarify errors by further approaching Dr Parmegiani “even if there were profound errors in the reasoning of the report” (CB 65).

12. [40]

    Secondly, “while it may be usual for an instructing solicitor to seek clarification of opinions” in a supplementary report it is difficult to envisage any improvement could have been achieved in Dr Parmegiani’s “fundamental and pervasive opinions” (CB 65 – 66). Thirdly, given the “fundamental and pervasive opinions” expressed by Dr Parmegiani, any attempt to improve on his report “may be seen or perceived to be improperly attempting to influence the expert witness” (CB 66).

13. [41]

    Allegation 2.11 concerned, as I pointed out above, the termination by the solicitors of the retainer “without reasonable basis” three days before the date appointed for conciliation in the AHRC. The written retainer included “a no confidence clause” and Mr Hastwell had argued that such a term “makes it all too easy for lawyers to act unreasonably with less than the minimum required standards, in turn forcing a client to lose faith in them and then (giving) lawyers an excuse to cease acting for clients” (sic) (CB 66). This matter had apparently been subject of an earlier communication from the Commission to Mr Hastwell by letter dated 23 May 2017 to which the Commissioner referred. The Commissioner found:

14. [42]

    The decision concludes with advice about the limited availability of an internal review under s 313 Uniform Law and the steps that will be taken to advance the balance of Mr Hastwell’s complaint.

15. [43]

    Following extensions of time granted to Mr Hastwell, he lodged an application on 10 May 2018 seeking an internal review of the Commissioner’s decision of 15 March 2018 to close the allegations. Apparently the submissions were lengthy. The Commissioner’s response is of four pages (CB 69 – 72). In three of these pages the Commissioner took the opportunity to rebut the lengthy submissions relied upon by Mr Hastwell which were essentially a rehash and an amplification of the matters previously relied upon. But in substance the Commissioner’s decision was as follows (CB 70):

16. [44]

    I do not propose to summarise the Commissioner’s “additional, following comments” about Mr Hastwell’s lengthy submissions. They may serve to indicate that had the Commissioner decided to exercise his “absolute discretion” to conduct an internal review, his original decision would have been confirmed: (s 313(3) Uniform Law).

17. [45]

    So far as the issues relate to Dr Parmegiani’s report, the Commissioner pointed out at greater length and with greater force that in any event, there was simply no point in seeking to dissuade Dr Parmegiani from his “extremely damaging” (to Mr Hastwell’s case), opinions (CB 71). The Commissioner considered it would have been “improper” to take any action against Mr Lorraine from the Dr Parmegiani particulars (CB 72). The Commissioner was of the view that the further submissions about the termination of the retainer were “misconceived” (CB 72).

Whether the impugned decisions are amenable to certiorari and mandamus

1. [46]

   I have had the benefit of written submissions from the plaintiff and the defendant, supplemented with oral argument at the hearing in relation to this issue. Mr Hastwell submitted that he had a right to judicial review in accordance with ss 63, 65, 69 and 75 Supreme Court Act 1970 (NSW) and s 264 Uniform Law (NSW). He further relied on Pt 5.2 Uniform Law as providing a right to make a complaint in relation to a consumer or disciplinary matter to the designated local authority and accordingly to have the decisions of the Legal Services Commissioner set aside for reason of jurisdictional error. Mr Hastwell submitted that his rights were not extinguished by determination of his claim by the Legal Services Commissioner as s 275 Uniform Law provided that the complaints process did not diminish any right “to seek a remedy at common law or in equity”.

2. [47]

   The Commissioner submitted that the relief of certiorari or mandamus is not available to the plaintiff as s 69(1) Supreme Court Act provides that such relief may only be granted on the same grounds that would be available by former writ of certiorari. The defendant argued that in accordance with the decision of Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 to attract certiorari the decision must affect rights. The defendant submitted that the plaintiff has exhausted all rights, as Mr Hastwell had a right to complaint conferred through s 266 Uniform Law and to seek a review of that decision in accordance with s 313 Uniform Law and both these options have been exercised.

3. [48]

   Dealing specifically with s 313 Uniform Law the Commissioner referred to Mendonca v Legal Services Commissioner [2019] NSWSC 409 at [38] as supporting the proposition that “where there is no duty for the decision maker to act, or act in a particular way, an order in the nature of mandamus is not available”. The defendant argued that there was no duty for the Legal Services Commissioner to act in a particular way in dealing with the decisions and that as the decisions relate to Mr Lorraine they neither affect the plaintiff’s rights nor are a condition precedent to the plaintiff’s rights and so the claim does not attract relief.

Consideration

1. [49]

   In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 at 580 Mason CJ, Dawson, Toohey and Gaudron JJ said:

2. [50]

   The question of the scope of certiorari was taken up by the High Court again in Hot Holdings, whereBrennan CJ, Gaudron and Gummow JJ said (at 159):

3. [51]

   In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [25], the unanimous Court said:

4. [52]

   In argument the Commissioner was prepared to concede that Mr Hastwell, in common with every person or body in the community, had a “right” to make a complaint about any conduct of the law practice to which Ch 5 Uniform Law applied. When a complaint is made the Commissioner may have a duty to undertake a preliminary assessment in accordance with s 276 of the Uniform Law. However, so far as a disciplinary matter was concerned, this was not a right in the sense discussed in the authorities to which I have referred. Things may be different in a complaint containing a consumer matter where, for instance, the Commissioner may have power to make a compensation order against the respondent under s 290 of the Uniform Law. Were that the case, a decision to close the complaint containing a consumer matter without further consideration under s 277 may in the relevant sense fall into the second category of matters identified as affecting legal rights in Hot Holdings. But that is not this case and it is unnecessary to consider the category of complaints containing consumer matters further.

5. [53]

   It is important to consider the nature of disciplinary proceedings against lawyers in the context of the Uniform Law. It has long been clearly established that orders of the superior courts made in exercise of their powers of control and supervision of the legal profession are protective in nature. The powers of the Court when properly engaged are not exercised to punish the lawyer, but rather to protect “those who require protection”: Clyne v The New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40 at 202. In The New South Wales Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20 at 183 a unanimous Court said:

6. [54]

   A consideration of the scheme of the Act amply demonstrates that the complainant has no “stake” in terms of even a mere expectation of a tangible benefit in the outcome of the disciplinary process established by Ch 5. Likewise, the lawyer or law practice is not subject to any “liability” as such. Such orders as may be made of a disciplinary nature are for the protection of the community. Again, the situation may be different in consumer matters where, as I have said, for example a compensation order may be in play.

7. [55]

   In my judgment there are five particular legislative provisions which demonstrate that the complainant’s legal rights are not affected by decisions made during the process and in particular by a decision under s 277 Uniform Law to close the complaint without further consideration of its merits after the Commissioner has conducted a preliminary assessment of the complaint under s 276.

8. [56]

   The first provision is s 273 Uniform Law which allows a complainant to withdraw the complaint but does not affect the authority of the Commissioner to continue to investigate or proceed with disciplinary matters despite the withdrawal. Secondly, the Commissioner is not required to give, inter alia, the complainant an opportunity to be heard or make a decision before, for present purposes, determining to close a complaint: s 277(4) Uniform Law. Thirdly, where the Commissioner finds unsatisfactory professional conduct has been established, he has wide powers under s 299 which fall to be exercised without reference to the complainant or his wishes. Fourthly, it is the Commissioner and not the complainant who has the power to initiate and prosecute proceedings under s 300 Uniform Law in respect of serious examples of unsatisfactory conduct and all cases of professional misconduct. The complainant is not a party to that decision or the proceedings so initiated. Fifthly, where a complaint is finalised by the Commissioner’s determination without recourse to NCAT, it is the lawyer or law practice who is afforded a right of appeal to NCAT under s 314 and not the complainant.

9. [57]

   I am of the opinion that the Commissioner’s decision to close those aspects of Mr Hastwell’s complaint under s 277 Uniform Law, the subject of his determination of 15 March 2018 is not amenable to certiorari and to that extent the proceedings must be dismissed.

10. [58]

    In arriving at this decision, I have benefitted from a consideration of the decision of Wilson J in Mendonca v The Legal Services Commissioner [2019] NSWSC 409, in particular at [32] – [38]. This passage was referred to without criticism on appeal in Mendonca v The Legal Services Commissioner [2020] NSWCA 84 at [13] – [16], McCallum JA, Basten and Leeming JJA agreeing.

11. [59]

    My conclusion in this regard is not altered by Mr Hastwell’s reliance upon s 275 Uniform Law. I have set that provision out above, but I will restate it for convenience:

12. [60]

    It is important to recall that the actual decision made was one refusing to conduct an internal review of the 277 Uniform Law decision under s 313 Uniform Law. In Mendonca, at first instance, Wilson J said at [38]:

13. [61]

    I am directly bound, of course, as a matter of judicial precedent by the decision of the Court of Appeal in Mendonca. To my mind, it is determinative of the issue. I would add, however, that Brennan J’s judgment in Ainsworth at 595 is to the same effect, if there is no duty to act mandamus is not an available remedy. But likewise, certiorari is not available because the refusal, in the Commissioner’s absolute discretion, to conduct an internal review, for the reasons I have already rehearsed, had no legal effect and there was nothing to be quashed.

14. [62]

    Mr Hastwell also sought to challenge the s 313 decision on the ground that the Commissioner had reviewed his own decision under s 277 rather than delegating the function under s 28 Application Act. It was said that exercising his power in that way involved a breach of the bias limb of the rules of natural justice. Mr Hastwell sought to derive contextual support from the concluding words of 313(3) conferring a power to “refer the matter back to the original decision-maker” (my emphasis). However, with respect he is factually incorrect. The Commissioner did not conduct an internal review. He exercised his “absolute discretion” to refuse an internal review. Secondly, there is nothing in the nature of an “internal review” that prohibits the Commissioner from taking a second look at his own prior decision. The reference to the original decision-maker is an acknowledgment of the Commissioner’s power of delegation and the power to refer the matter to say the Law Society, if appropriate as occurred in Mendonca. It does not impose a legal requirement, or condition of validity that an internal review, if granted is to be exercised by a decision-maker different from “the original decision-maker”.

15. [63]

    It follows that I am of the view that neither impugned decision is amenable to certiorari and for that reason the proceedings must be dismissed. Lest I am wrong in this conclusion I will deal briefly with the matters relied upon by Mr Hastwell as vitiating the Commissioner’s decisions under s 277 and s 313 Uniform Law.

Whether there has been jurisdictional error

1. [64]

   Mr Hastwell relies on the following grounds as demonstrating jurisdictional error on the part of the Commissioner:

   1. (1)

      the Commissioner made an error of law by failing to identify the correct issues;

   2. (2)

      failing to take into account relevant considerations;

   3. (3)

      taking into account irrelevant considerations;

   4. (4)

      using statutory discretion erroneously;

   5. (5)

      denial of procedural fairness and natural justice because the decision at first instance and upon review was made by the same person;

   6. (6)

      denial of procedural fairness and natural justice because of an apprehension of bias;

   7. (7)

      bias by basing a decision on a doctor’s report;

   8. (8)

      legal unreasonableness;

   9. (9)

      manifest illogicality and irrationality; and

   10. (10)

       delegation.

2. [65]

   Each of these grounds will be considered in turn but where appropriate and to avoid repetition I have amalgamated some of the grounds for judicial review. Although, as I have said, my decision in relation to the amenability of the decisions of the Commissioner to certiorari and mandamus renders consideration of Mr Hastwell’s ten asserted jurisdictional errors otiose, I will, but briefly record the arguments advanced and my contingent view about the matter. I have listed Mr Hastwell’s ten asserted categories of error in the order in which he advanced them. However, given that there is an allegation of bias in respect of each decision, I will deal with grounds (5), (6) and (7) out of the sequence in which they were advanced.

Substantive law

1. [66]

   Before reviewing the grounds I should say something about the principles applicable to this stage. In Craig v The State of South Australia (“Craig”) (1995) 184 CLR 163; [1995] HCA 58 the High Court held at 175 that certiorari will only be available where there has been “jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and “error of law on the face of the record””. Jurisdictional error was defined in the following terms at 177:

2. [67]

   The High Court provided a number of examples where jurisdictional error will be occasioned which I will set out below:

3. [68]

   These principles were applied to decisions of non-curial tribunals in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82], McHugh, Gummow and Hayne JJ. Moreover, not every express or implied statutory condition to be observed in the course of a decision-making process which has not been complied with is afforded the status of jurisdictional error. There is a “threshold of materiality”. A failure to observe a statutory condition of the exercise of power is not material if compliance “could have made no difference to the decision that was made in the circumstances in which that decision was made”: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [29] – [30], Kiefel CJ, Gageler and Keanne JJ.

Apprehension of bias and actual bias

1. [69]

   Mr Hastwell submitted that the Commissioner did not respond appropriately to his queries as to an association between the Commissioner and the Freemasons or an association between the Commissioner, Mr Lorraine, Harmers Workplace Lawyers and Dr Parmegiani. Relying on the principles as espoused in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [7]- [8] Mr Hastwell submitted that that in determining whether a decision maker will bring an impartial mind to the issues in dispute “the question is one of possibility (real and not remote), not probability”. Mr Hastwell further contended that the Commissioner was biased on the basis that he utilised Dr Parmegiani’s report to inform his decision. The plaintiff relied on Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44; R v Watson; Ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39; Livesey v The New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17 as substantiating his submissions.

2. [70]

   Invoking the decision of Ebner the Commissioner argued that there was no proper factual basis for any assertion that there was an association with the Freemasons and any member of the Legal Services Commission, let alone any basis for the assertion that there was an association between the Commissioner, Mr Lorraine, Harmers Workplace Lawyers and Dr Parmegiani. In any event, the defendant submitted that the claimed association between Mr McKenzie, Harmers Workplace Legal, Mr Lorraine and Dr Parmegiani was not raised prior to the decision being made and is therefore not a legitimate ground of review.

3. [71]

   The defendant also relied on the decision of Vakauta v Kelly to argue that the Commissioner’s evaluation of Dr Parmegiani’s report and his subsequent decisions in respect of the complaints do not suggest any bias.

4. [72]

   I addressed these issues in an interlocutory judgment refusing Mr Hastwell leave to cross-examine the Commissioner on his affidavit evidence: Hastwell v Legal Services Commissioner (No 2) [2019] NSWSC 1225. In the course of that judgment I referred to the judgment of Basten JA in Makucha v Sydney Water Corporation [2011] NSWCA 234 at [9]. That case was concerned with a judge who declined to disclose his religious affiliations and connections at the request of a party. Basten JA said:

5. [73]

   The principles derived from Ebner were applied by the High Court to an administrative decision maker in Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20. The unanimous Court said at [21]:

Procedural fairness and natural justice

1. [74]

   Mr Hastwell again submitted that it was procedurally unfair for the Commissioner to decide both the decision “at first instance” and exercise his discretion not to conduct an internal review. He argued that neither the Uniform Law nor Application Act mandated that the Commissioner alone must consider the complaint and decide whether to conduct an internal review. Mr Hastwell argued that it would be contrary to ss 315, 316 and 319 Uniform Law and that the review by the Commissioner occasioned actual bias.

2. [75]

   The Commissioner submitted that the legislation does not provide that the “designated local regulatory authority” conducting the internal review must be different from the initial decision maker. On the contrary the Commissioner submitted that entrusting both decisions to the one regulatory authority better supports the efficient administration of the outcomes of the regulatory body under the Uniform Law and Application Act.

3. [76]

   I have addressed this matter at [63] above. I repeat it is important to bear firmly in mind that the Commissioner did not carry out an internal review. He refused the application for an internal review. The premise upon which this ground is advanced is fallacious. Accordingly, even had the ground been made out, it would not cross the “threshold of materiality”. As I have said, the review of a previous decision by the same decision-maker does not in and of itself demonstrate actual or apprehended bias. And nothing more with respect is advanced in this regard. The consideration that the Commissioner explained that he would have come to the same conclusion in any event had he carried out an internal review, including by reference to the actual opinions expressed by Dr Parmegiani, does not imply bias. That additional explanation was unnecessary, but cogent. The additional submissions, in the Commissioner’s view, did not overcome the fundamental difficulty which undermined this part of Mr Hastwell’s complaint, that Dr Parmegiani’s report was extremely damaging to Mr Hastwell’s claim in the AHRC to a point beyond retrieval by the solicitor seeking further clarification in a supplementary report.

Error of law

1. [77]

   Mr Hastwell contends that an error of law has occurred as the Legal Services Commissioner has incorrectly decided that allegations 1.2(b), 1.2(f) and 2.11 were “lacking in substance”. Mr Hastwell advances this argument for 2 reasons:

2. [78]

   Mr Hastwell submitted that procedural errors such as ceasing to act for someone or material errors which affect litigation are not issues which lack substance. The material issues to which Mr Hastwell referred concerned the drafting of the letter of instruction to Dr Parmegiani and the use that could properly be made of Dr Parmegiani’s evidence. Mr Hastwell submitted that Mr Lorraine did not properly draft the letter of instruction as:

3. [79]

   Mr Hastwell further argued that the content of Dr Parmegiani’s report is inadmissible and accordingly that Mr Lorraine was required to question its contents with the expert and discuss it with his client, Mr Hastwell.

4. [80]

   Mr Hastwell contends that the Legal Services Commissioner has misapplied s 277(1)(a) by applying ss 296 and 297 Uniform Law and the test espoused in Briginshaw. Mr Hastwell also argued that the Legal Services Commissioner erred in considering the content of Dr Parmegiani’s report in making an assessment of his complaint.

5. [81]

   The Commissioner argued that the sustainability of a complaint depends on whether there has been professional misconduct or unsatisfactory professional conduct and that ss 296 and 297 Uniform Law and the test espoused in Briginshaw were applied to assess whether the allegation could be substantiated on this basis. The Commissioner submitted that it was on this assessment that it was concluded that the complaint was lacking in substance.

6. [82]

   The Commissioner argued that this approach was legitimate given the broad scope granted to the Commissioner to “inform itself of any matter in any manner as it thinks fit” in accordance with s 276(2)(b) Uniform Law. Indeed, the Commissioner advanced the argument that there is no specific standard as to the state of satisfaction that that the Commissioner needed to inform himself of and for abundant caution he adopted a high standard of proof to determine the complaint in accordance with s 277(1)(a).

7. [83]

   With great respect, Mr Hastwell’s argument in this area is completely misguided. It is only explicable as an attempt to re-run the arguments he had made to the Commissioner as to the merits of his complaint. The exercise of the Commissioner’s ultimate powers under s 299, to make orders against a lawyer or law practice, or under s 300 to initiate proceedings in NCAT against a lawyer or law practice is conditioned on him having made a finding either of unsatisfactory professional conduct, in the case of s 299 Uniform Law, or either unsatisfactory professional conduct or professional misconduct for the purpose of s 300 Uniform Law. When considering whether to close these particulars of Mr Hastwell’s complaint under s 277 Uniform Law after the preliminary assessment, it was highly relevant to consider, as the Commissioner did, whether the material put forward was capable of satisfying the statutory tests established by s 296 and 297 Uniform Law. And in considering that matter, it was also perfectly orthodox for him to bear in mind the Briginshaw approach to the civil standard of proof, which is always applied in such matters because of the seriousness of an allegation of professional misconduct or unsatisfactory professional conduct and the potential consequences for the practitioner if the allegation is sustained.

8. [84]

   In substance, the Commissioner’s decision was that these particulars as advanced and explained by Mr Hastwell were not capable of satisfying those statutory tests by application of that standard of proof. That is to say, the Commissioner found that those particulars “were lacking in substance” and could not be substantiated. It followed that he did not assess that Mr Hastwell’s complaint was capable of establishing a “grievous” departure from professional standards of practice. In so concluding, the Commissioner did not ask himself the wrong question or apply the wrong test.

Relevant and irrelevant considerations

1. [85]

   Mr Hastwell submitted that the Commissioner failed to take into account relevant considerations including: the allegation that the expert was asked to comment on questions of law; Mr Lorraine’s alleged failure to provide Dr Parmegiani with Mr Hastwell’s history; Mr Lorraine’s alleged inability to consider the inadmissibility of Dr Parmegiani report; and the seriousness of Mr Lorraine ceasing to act for Mr Hastwell. Conversely, he submitted that the Commissioner wrongly took into account irrelevant considerations including: using Dr Parmegiani’s report to inform his decisions; considering the retainer clause in the absence of considering a solicitor’s fiduciary duties; reviewing the retainer clause by reference to common practice in NSW; and deciding the claim in relation to s 277 Uniform Law.

2. [86]

   Mr Hastwell argued that in accordance with the decision of Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, in determining what is a relevant consideration regard should be had to the scope and subject matter of the Act in question. It was argued that given that the Act in question concerned the practice of law that any incorrect application by a legal professional would be a relevant matter for consideration by the Commissioner.

3. [87]

   The Commissioner relied on the decisions of Peko-Wallsend and Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180 to assert that whether a decision-maker is bound to take into account an omitted factor or prohibited from considering a factor included in the decision is a matter of statutory construction. The Commissioner argued that the matters which Mr Hastwell referred to are not mandatory considerations which, as the case may be, must, or must not, be taken into account having regard to the express words of s 277(1) Uniform Law or by necessary implication. The Commissioner argued that considerations put forward by the plaintiff are really factual questions and are not mandatory considerations as outlined by the Act.

4. [88]

   Mr Hastwell’s argument is entirely misconceived. In substance, once again, he is seeking to re-ventilate the merits of his original complaint, rather than addressing the question of whether the Commissioner’s decision under s 277 Uniform Law conformed with the requirements of the statute. His real complaint is that the Commissioner disagreed, and rejected the arguments he put forward. These matters are beyond the scope of judicial review. They are not mandatory factors to be taken into account, or eschewed, as the case may be, in the Peko-Wallsend sense. I might observe that despite the invocation of the concept of a solicitor’s fiduciary duty, Mr Hastwell did not explain how it was relevant here.

Statutory discretion

1. [89]

   Mr Hastwell contends that the Commissioner’s statutory discretion to conduct an internal review must be exercised reasonably and with procedural fairness. He argued that the circumstances of the complaints were such that the statutory discretion could not have been exercised to dismiss his claim and that it was inappropriate for the Commissioner to rely on Dr Parmegiani’s report as a basis for not exercising his discretion. He further, submitted that as the Commissioner dealt with the complaint at “first instance” he should not have been the same decision-maker to decide whether to exercise the discretion to conduct an internal review.

2. [90]

   The Commissioner dismisses any allegation that the statutory discretion to conduct an internal review was conducted unreasonably as it was open for the decision-maker to have concluded not to exercise his discretion.

3. [91]

   These arguments overlap with other submissions advanced by Mr Hastwell. Indeed this is the third iteration of what is essentially the same ground. To the extent that I have already dealt with the submission I will not deal with it again here. One may accept that although said to be “absolute”, the discretion conferred by s 313 Uniform Law is not entirely at large. Doubtless it is conditioned by s 316 imposing a duty “to act in a fair manner” and s 319 applying “the rules of procedural fairness”. Neither condition is shown to have been breached. Quite the contrary. The Commissioner: extended the time for applying for a review more than once for Mr Hastwell’s benefit; permitted Mr Hastwell to provide copious further submissions; and although of the opinion that the application should be refused, he dealt with the additional submissions in some detail to demonstrate why he had formed the view that the additional argument would not have made a difference to that part of Mr Hastwell’s complaint that was closed under s 277 Uniform Law.

Legal unreasonableness and illogicality and irrationality

1. [92]

   Mr Hastwell submits that the the decision of the Commissioner was unreasonable because his complaints had merit and raised very real professional conduct issues. Mr Hastwell advanced the submission that the Commissioner’s dismissal of his claims amounted to illogical and irrational conduct as there was no realistic or logical way that he could have formed the conclusion that the claims were lacking in substance. The Commissioner relied on Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131] to support its proposition that “a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion”.

2. [93]

   A common theme runs through much of Mr Hastwell’s argument, that is, that the matters of law for which he contended were self-evident and a solicitor’s failure to observe them is such a fundamental departure from the standards of competent practitioners as to admit no other conclusion than the solicitor’s impugned conduct was, at least, unsatisfactory in a professional sense. In truth, however, as I have said more than once, Mr Hastwell is seeking to re-ventilate before this Court the merits of his argument to the Commissioner, which was rejected. I accept the Commissioner’s submission that at best from the point of view of Mr Hastwell’s case, this is an area where “logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based” (SZMDS at [131]). The error for which Mr Hastwell contends is not made out.

3. [94]

   As I have said, Mr Hastwell also invoked the doctrine of legal unreasonableness. The decision of the Commissioner under s 277 Uniform Law did not involve the exercise of a discretion. Rather, it required an evaluation following the preliminary assessment of whether the complaint or aspects of it was or were lacking in substance. It may then be questioned whether legal unreasonableness as explained for Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 has anything to add to the discussion. To the extent relevant, I am not persuaded that the Commissioner’s decision under s 277 Uniform Law “lacks an evident and intelligible justification”: Li at [76], Hayne, Kiefel and Bell JJ.

Delegation

1. [95]

   Mr Hastwell submitted that as there is no statutory necessity for the Commissioner to assess the initial complaint and conduct the internal review, and in accordance with s 28 Application Act the Commissioner has the power to delegate his function, procedural fairness demanded that the Commissioner delegate his functions.

2. [96]

   The Commissioner submitted that in accordance with South Australia v Teachers Appeal Board (2011) 109 SASR 168; [2011] SASCFC 3 a question of bias may be displaced either expressly or by implication. The text of ss 22 and 28(1) Application Act does not suggest that there ought to be a different decision-maker or there is a mandatory requirement that delegation must occur.

3. [97]

   I have addressed this question in different ways already. Section 313 Uniform Law in express terms contemplates that the Commissioner may conduct an internal review of a decision made by the Commissioner. As I have said, s 313(3) includes a power of remitter where there has been a previous delegation or referral out to the Law Society or the Bar Association. That did not occur here. For reasons I have already given, it was not necessary for the Commissioner to delegate the s 313 power under s 28 Application Act.

Costs

1. [98]

   For reasons given above, I am satisfied that it was appropriate in the present case for the Commissioner to directly participate in the proceedings as active contradictor. Normally a successful party would be entitled to have his, her or its costs. Had Mr Hastwell been successful, an order in his favour would have followed the event, to the extent to which he would have been entitled to costs as a self-represented solicitor given the abrogation of the exception to the rule denying a self-represented litigant recompense for the time spent working on the case recognised in London Scottish Benefit Society v Chorley (1884) 13 QBD 872 at 877 by the High Court in Bell Lawyers Pty Ltd v Pentelow (2019) 93 ALJR 1007; [2019] HCA 29 at [57].

2. [99]

   At the same time, as I have said at the outset, a number of Mr Hastwell’s complaints remain pending and under the Commissioner’s investigation. In those particular circumstances it would be unseemly to award costs in favour of the Commissioner against Mr Hastwell as such a matter may appear to compromise the Commissioner’s impartiality and neutrality as an investigator and, to some extent, decision-maker. For this reason, I will order each party to bear his own costs, but reserve liberty to apply lest either party wish to make a special application.

3. [100]

   My orders are:

   1. (1)

      Dismiss the proceedings for judicial review;

   2. (2)

      Each party to bear his own costs of the proceedings;

   3. (3)

      Liberty to apply in respect of order (2) in writing addressed to my associate within 14 days of the date hereof.