Bowers v NSW Legal Services Commissioner and Ors

The plaintiff commenced these proceedings by the filing of a summons on 12 January 2021 which named the NSW Legal Services Commissioner as the only defendant. In that summons, the plaintiff sought orders which were pleaded in the following terms:

Before the Court for determination are two notices of motion.

The first is an amended notice of motion filed by the plaintiff on 28 April 2021 which seeks leave to file a further amended summons. That further amended summons seeks relief which is pleaded in the following terms:

Although the further amended summons which is sought to be filed makes reference to “the defendant", it in fact names five defendants as follows:

The Court has power pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) (the rules) to order that a party be joined to the proceedings. No such order has actually been sought by the plaintiff in his amended motion, but that specific issue was not taken by any of those whom the plaintiff now seeks to join. It should also be noted that the plaintiff’s amended notice of motion was not supported by any substantive affidavit.

The second notice of motion before the Court has been filed by the fifth defendant. That motion seeks orders (inter alia) that the proceedings brought by the plaintiff be dismissed pursuant to r 13.4(1)(b) of the rules. That notice of motion is supported by an affidavit of John Mckenzie, the NSW Legal Services Commissioner, affirmed on 11 May 2021.

The entirety of the relevant pleadings, affidavit material and written submissions were contained in a Court Book which was admitted without objection and marked exhibit “A”.

In light of the orders sought in the respective motions, it is appropriate that the fifth defendant's motion be considered in the first instance. If I conclude that the relief sought in that motion should be granted, it would follow that the proceedings, and thus the plaintiff's amended motion, would be dismissed. If I conclude that the fifth defendant's motion should be dismissed, it will then be necessary for me to consider the plaintiff's amended motion and the associated issue of joinder.

The plaintiff brought proceedings pursuant to the Succession Act 2006 (NSW) for a family provision order from the estate of his late mother, Bethia Jocelyn Bowers (the family provision proceedings). In those proceedings:

The family provision proceedings were heard and determined by Hallen J who ordered that a provision be made in favour of the plaintiff. [1]

The plaintiff then lodged a number of complaints with the fifth defendant about the conduct of the first, second, third and fourth defendants. The decisions made by the fifth defendant in response to those complaints are at the heart of the plaintiff’s proceedings and are discussed further below.

The plaintiff also brought proceedings against the Judicial Commission of NSW seeking judicial review of a decision to summarily dismiss his complaint about the conduct of Sackar J in the family provision proceedings. On 30 July 2021, N Adams J dismissed those judicial review proceedings. [2] Separate proceedings brought by the plaintiff against the Judicial Commission of NSW seeking judicial review of a decision to summarily dismiss his complaint about the conduct of Hallen J in the family provision proceedings were also dismissed by N Adams J on 30 July 2021. [3]

The relief sought by the plaintiff in the further amended summons that he seeks to file is pleaded as relief in respect of “the decisions (of the fifth defendant) …. dated 18 November 2020 and 13 January 2021”. Properly understood, there are in fact five decisions made by the fifth defendant which the plaintiff seeks to challenge.

Following the conclusion of the family provision proceedings, the plaintiff made a complaint about the conduct of the fourth defendant. [4] The fifth defendant determined that this complaint should be closed, following which the plaintiff sought an internal review of that determination. In subsequent correspondence the fifth defendant determined, in the exercise of his discretion, that no review of the determination would be conducted. [5] In doing so, the fifth defendant responded to each of the individual submissions made by the plaintiff. [6]

The plaintiff also complained about the conduct of the second defendant. [7] Having considered that complaint, the fifth defendant determined that in all of the circumstances it was not fair and reasonable take it any further and declined to make the compensation order which had been sought by the plaintiff. [8]

The plaintiff made a separate complaint about the third defendant. The fifth defendant concluded [9] that in the circumstances, the plaintiff's complaint was incapable of informal resolution, and that it was not fair and reasonable to take the matter any further. The fifth defendant explained those decisions by reference to each and every one of the individual allegations made by the plaintiff. [10]

The plaintiff made a separate complaint against the first defendant arising out of her representation of him in the family provision proceedings. The fifth defendant concluded that it was not fair and reasonable in all the circumstances to take that complaint any further. [11]

The fifth decision arose from correspondence sent by the plaintiff to the fifth defendant on 1 December 2020 [12] and 7 December 2020 [13] in which the plaintiff sought a “review of all matters”. In a letter of 13 January 2021, [14] the fifth defendant addressed the matters raised by the plaintiff and concluded, in the exercise of his discretion, that a review was not appropriate.

Counsel for the fifth defendant advanced three principal submissions in support of an order dismissing the proceedings.

Firstly, it was submitted that nothing in the plaintiff’s correspondence, or in his submissions, demonstrated jurisdictional error, or error of law on the face of the record, and that the substance of the plaintiff’s complaints were directed towards the merits of the various decisions.

Secondly, it was submitted that there was no basis upon which to conclude that any of the decisions were legally unreasonable.

Thirdly, to the extent that any of the decisions were made pursuant to s 290 or s 313 of the Legal Profession Uniform Law (NSW) (the Uniform Law), counsel submitted that the relief sought was not available because each section confers a discretion on the fifth defendant, as opposed to imposing a duty on him to act in a particular way.

The plaintiff forwarded an email to my Associate on the morning of the hearing which, leaving aside what was put in relation to the issue of joinder, was in the following terms:

In the course of the hearing of the motion, I asked the plaintiff (whom I note is legally qualified) to specifically articulate the error(s) of law on which he relied in support of the relief sought. In response, the plaintiff particularised the following errors on the part of the fifth defendant:

The plaintiff went on to submit that each of these decisions amounted to errors of law because they were “perverse”, which I have interpreted as an assertion that the decisions are legally unreasonable. He submitted that in all of the circumstances he had a “good arguable case” and that the test for dismissal of the proceedings had not been satisfied.

The fifth defendant’s notice of motion seeks an order under r 13.4(1)(b) of the rules which is in the following terms:

The power to dismiss proceedings under that rule is appropriately exercised only in cases where the claim is so clearly deficient that it would be inappropriate to allow the proceedings to continue. [19]

For the reasons that follow, I am satisfied that this test has been met.

The plaintiff’s principal complaint appears to be that the decisions were legally unreasonable. If a decision reached by a decision maker is so unreasonable that no reasonable person could ever have come to it, the Court has a basis on which to intervene. [20] In Secretary of State for Education and Science v Tameside Metropolitan Borough Council Lord Diplock said: [21]

In Bromley London Borough Council v Greater London Council [22] his Lordship expanded upon the issue, describing decisions falling into this category as those which:

Lord Diplock’s formulation was adopted by Wilcox J in Conyngham & Ors v Minister for Immigration and Ethnic Affairs. [23] Subsequently, in Minister for Immigration and Citizenship v Li [24] the High Court concluded that a decision of the Migration Review Tribunal to refuse to adjourn review proceedings was unreasonable, to the extent that the Tribunal had exceeded its jurisdiction. The propositions which may be distilled from the judgment of the plurality (Hayne, Kiefel and Bell JJ) include the following:

Apart from a broad assertion, nothing put by the plaintiff, either orally on writing, squarely addressed the issue of why the decisions of the fifth defendant were said to be unreasonable in the sense that I have described. Each of the determinations made by the fifth defendant was considered and detailed. Each of them addressed, in considerable detail, the plaintiff’s various complaints. In my view, it could not be said that any of the decisions lack intelligible justification.

Further, it is evident from the plaintiff's submissions to which I previously referred [30] that what he is really seeking is a review of the merits of the fifth defendant's decisions. It is not open to a court to engage in a merits review in proceedings for judicial review.

In support of his position, the plaintiff relied on the decision in Bruce v Cole. [31] Those proceedings involved a challenge to the validity of a report prepared under by a body constituted pursuant to the Judicial Officers Act 1986 (NSW) which had formed a majority opinion that there was justification for the Parliament to remove a judicial officer. In his email, the plaintiff drew particular attention to paragraph 3 of the headnote to the authorised report which is in the following terms:

Whilst the plaintiff did not articulate the basis on which he relied on these observations, I am left to assume that he asserts that the decisions of the fifth defendant were “so unreasonable in result that some legal error or misconception must have been involved”. For reasons that I have already stated, I do not consider that any of the decisions of the fifth defendant were legally unreasonable.

The plaintiff also relied on the decision in Hockey v Yelland [32] and in particular, that part of the judgment of Gibbs CJ [33] in which his Honour concluded that certiorari is available to correct an error of law on the face of the record. For the reasons that I have stated, no error of law is made out in the present case.

Further, the fourth decision was one made (at least in part) pursuant to the discretionary power conferred by s 290 of the Uniform Law. To that extent, the relief sought by the plaintiff is not available. [34] Similarly, to the extent that the fifth decision was made in the exercise of the discretion conferred by s 313 of the Uniform Law, the relief sought is similarly not available. [35]

Finally, the decisions which the plaintiff seeks to challenge are those of the fifth defendant. In those circumstances, even if I had come to the view that he had an arguable case, there would be no utility whatsoever in joining the first, second, third and fourth defendants as parties to the proceedings.

For all of these reasons, I am satisfied that the fifth defendant should succeed on his motion seeking a dismissal of the proceedings. Having reached that determination, it follows that the plaintiff's notice of motion should also be dismissed. Consistent with the indication that I gave at the conclusion of the hearing, I propose to allow all parties to file short written submissions in respect of the question of costs.

For the foregoing reasons, I make the following orders: