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 Commissioner's decisions. And, unless the lawyer has already consented to the penalty under section 77J, then the lawyer can also appeal against the Commissioner's decisions. 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 instituted 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.