In some cases, both the lawyer and the complainant have the right to appeal against a decision made by the Commissioner.
If the Commissioner determines that there has been misconduct by the lawyer, and if he decides to deal with that misconduct under section 77J of the Act, then the complainant can appeal to the Tribunal against the disciplinary action taken by the Commissioner against the lawyer. And in some circumstances the lawyer can also appeal against the disciplinary action taken by the Commissioner. Those rights of appeal are in section 77K of the Act. An appeal under section 77K must be lodged within one month of the decision. An extension of time to institute an appeal may be granted by the Tribunal if it is satisfied there is good reason to do so.
Not all decisions by the Commissioner can be appealed against. The Act does not provide any right of appeal against a determination by the Commissioner if either:
- he finds that there is no misconduct by the lawyer; or
- he closes the Complaint without investigating it or without completing the investigation (ie under section 77C).
The Tribunal has decided in separate cases that, because the Act does not provide any right of appeal against those types of determinations by the Commissioner, and as there is no right of appeal at common law or in equity, the Tribunal does not have any jurisdiction to hear such an appeal – see McFarlane and Keung. In Attorney-General v Kowalski, in relation to the Commissioner’s decision to close a complaint under section 77C, His Honour Justice Blue said that “there is no power to appeal against the Commissioner’s determination to the Tribunal and the Tribunal would have no jurisdiction to hear Mr Kowalski’s substantive complaint.”
Although there is no right of appeal, it may be in certain circumstances that a complainant could seek to challenge such a decision in judicial review proceedings in the Supreme Court – see Keung and Kowalski.
A complainant can commence his or her own proceedings against a lawyer in the Tribunal (section 82(2)(d)). This could be done even if the Commissioner has made a decision that can’t be appealed against. The Commissioner would not be a party in these proceedings.
Before making an appeal, or laying charges direct in the Tribunal, it would be wise to seek independent legal advice. If a complainant pursues judicial review proceedings in the Supreme Court or lays charges against a lawyer in the Tribunal, and if those proceedings are unsuccessful, then that could result in a liability for the other party’s costs.
The Commissioner considers that it isn’t appropriate for his office to give any advice about any such rights a complainant may have.