DAVID ASHLEY STARKE v LEGAL PROFESSION CONDUCT COMMISSIONER [2025] SASC 31

Applicant: DAVID ASHLEY STARKE Counsel: MR C MCCARTHY - Solicitor: BILLICH LAW Respondent: LEGAL PROFESSION CONDUCT COMMISSIONER Counsel: MS G WALKER SC - Solicitor: LEGAL PROFESSION CONDUCT COMMISSIONER Hearing Date/s: On the papers File No/s: CIV-24-011963 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. STARKE v LEGAL PROFESSION CONDUCT COMMISSIONER [2025] SASC 31 Judgment of the Honourable Justice Stein 17 March 2025 ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - DISCOVERY AND INTERROGATORIES PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY The respondent seeks summary dismissal of an application for judicial review brought by the applicant pursuant to r 256.5(3) of the Uniform Civil Rules 2020 (SA). The applicant sought discovery of particular documents prior to the hearing and determination of the respondent’s summary dismissal application on the basis those documents were relevant to the Court’s determination. Held (refusing the application): 1. The evident purposes of r 256.5 are to avoid unnecessary cost, time and delay and to ensure expedient determination of any application for summary judgment. The materials necessary to determine the respondent’s application are presently before the Court. The documents sought are not required to address the summary dismissal application and the applicant has not demonstrated that he would be prejudiced by a refusal to order discover. Accordingly, there are not sufficiently persuasive reasons to depart from r 256.5. Uniform Civil Rules 2020 (SA) rr 143.2, 144.2, 256.5, 256.6, referred to. Vansetten v State of South Australia [2020] SASC 158; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117; Rana v Hyatt Regency Hotel Ltd [2007] SASC 7, considered. -- 1 of 10 -- -- 2 of 10 -- STARKE v LEGAL PROFESSION CONDUCT COMMISSIONER [2025] SASC 31 Civil: Application 1 STEIN J: The applicant has applied for judicial review of a decision by the Legal Profession Conduct Commissioner (“the Commissioner”) to lay a charge against the applicant in the Legal Practitioners Disciplinary Tribunal (“the Tribunal”). The Commissioner has sought summary dismissal of the application for judicial review. The applicant seeks discovery and production of documents in advance of the hearing and determination of the summary dismissal application. 2 For the reasons which follow, I have determined to refuse the application for discovery and production in advance of the summary dismissal application. Background 3 On 12 June 2024, the Commissioner laid a charge alleging that the applicant engaged in professional misconduct as a result of an alleged failure to comply with conditions placed on his practising certificate on 21 November 2016. 4 Since 2016, there have been conditions on the applicant’s practising certificate to the effect that he must not brief counsel without first having funds in trust before the brief is delivered to counsel or having informed counsel of the condition on his practising certificate and counsel having agreed in writing to await payment of their fees. 5 The background circumstances which gave rise to the laying of the charge commenced in about May 2021 when the Commissioner received a complaint about the applicant’s conduct which asserted that the applicant had failed to pay counsel fees. The Commissioner, through his staff, asked the applicant to respond to the complaint and, in doing so, to address in his response whether he had told the complainant he had money in trust from the client to pay her fees or if he had alerted her to the conditions on his practising certificate concerning briefing counsel. The complainant, in response to questions from the Commissioner, said she could not recall whether the applicant told her he had money in trust and there was never any discussion about the conditions on the applicant’s practising certificate. 6 The applicant responded to the complaint including providing explanations and referring to mitigating factors. 7 On 23 August 2021, the Commissioner wrote to the applicant to inform him that the Commissioner had decided to make an investigation on his own initiative under s 77B(1) of the Legal Practitioners Act 1981 (SA) (the “Act”) in relation to assertions the applicant did not comply with the conditions on his practising certificate when he briefed the complainant in May 2020 together with asserted failures to comply with the conditions in briefing two other counsel. -- 3 of 10 -- [2025] SASC 31 Stein J 2 8 The applicant responded to the Commissioner. In his response, and in subsequent correspondence, the applicant sought various documents and particulars including a copy of documentation or evidence relied on by the Commissioner for making the decision to conduct an own motion investigation. In further correspondence, the applicant questioned the legality of the investigations, asserted that the Commissioner had acted on tainted evidence and took the position the Commissioner had no proper basis for asking the questions asked of the applicant and complainant about compliance with his practicing certificate conditions. 9 The Commissioner did not accept those criticisms. 10 In April 2024, the Commissioner wrote to the solicitor for the applicant informing the applicant that the Commissioner had formed a preliminary view about his conduct and giving the applicant an opportunity to make further submissions. 11 In May 2024, the applicant’s solicitor provided submissions in response to the Commissioner’s preliminary view. The submissions, among other things, contended that the evidence relied upon by the Commissioner to commence the own initiative investigation was improperly obtained. The letter urged the Commissioner to reconsider his preliminary views and invited him to re- characterise the conduct as unsatisfactory professional conduct. 12 On 15 May 2024, the Commissioner wrote to the applicant’s solicitor informing the applicant that he had taken into account the submissions made on behalf of the applicant. The Commissioner maintained that the applicant had engaged in professional misconduct. The letter advised that if the applicant did not consent, it was most likely the Commissioner would consider the conduct could not adequately be dealt with under s 77J such that he then must lay a charge before the Tribunal. 13 On 30 May 2024, the applicant’s solicitor wrote to the Commissioner to raise a number of issues including with the definition of his conduct as professional misconduct. 14 On 11 June 2024, by letter, the applicant’s solicitors were advised that the Commissioner had decided to lay a charge given the applicant did not consent to the proposed disciplinary action. 15 On 12 June 2024, the applicant’s solicitors responded, among other things, to say that the applicant neither rejected nor consented to the offer contained in the Commissioner’s letters of 3 April and 15 May 2024. Complaint was made about the failure to provide reasons. 16 On 12 June 2024, the Commissioner laid the charge. -- 4 of 10 -- [2025] SASC 31 Stein J 3 Judicial review 17 The applicant commenced judicial review proceedings against the Commissioner for a review of the decision identified as follows: In which the Legal Profession Conduct Commissioner determined to lay a charge in the Legal Practitioners Disciplinary Tribunal pursuant to s 82 of the Legal Practitioners Act 1975 (SA) … alleging the Applicant had engaged in conduct which constituted professional misconduct. At the time the Commissioner laid the Charge he had previously elected to pursue the matter on an administrative basis pursuant to s 77J … That process was incomplete as the Applicant had not determined whether he would or would not consent to the disciplinary action proposed by the Commissioner. 18 The applicant challenges the decision to abandon the s 77J administrative process and to lay a charge. The applicant seeks orders that, in his investigation of the applicant and his determination in respect of the alleged conduct, the Commissioner acted beyond jurisdiction and in contravention of the requirements of procedural fairness, and sought the decision of the Commissioner be set aside on the basis of jurisdictional error or error of law or for failure to observe the requirements of procedural fairness. 19 The application was supported by affidavit sworn by the applicant. That affidavit set out a chronology of correspondence and events said to be relevant to the judicial review and attached correspondence spanning a period from 17 May 2021 to 12 June 2024 together with a copy of the charge and the applicant’s response. Summary dismissal application 20 The Commissioner sought summary dismissal of the judicial review application pursuant to rr 144.2 and 256.5(3) of the Uniform Civil Rules 2020 (SA) (the “UCR”) on the basis that there is no reasonable basis for the action for judicial review. Alternatively, the Commissioner sought summary dismissal pursuant to r 143.2 of the UCR based on asserted abuse of process. 21 The Commissioner’s application referred to r 265.5(2) of the UCR which provides the Commissioner is relieved of the obligation to take any further steps in the action other than for the purposes of the summary dismissal application until the application is determined. 22 The Commissioner’s application was supported by affidavit. Application for discovery 23 The applicant sought discovery and production from the Commissioner of the entirety of his investigation file prior to the hearing and determination of the summary dismissal application. -- 5 of 10 -- [2025] SASC 31 Stein J 4 Applicant’s submissions 24 The applicant’s position was that the summary dismissal application cannot properly be addressed until the Court has before it documents which should have, and have not, been discovered. Those documents are said to be relevant to the investigation conducted by the Commissioner, bias, and procedural fairness. The applicant contended that he has been seeking discovery since 2021, proper discovery has not been made and claims for privilege made by the Commissioner were not appropriately made. 25 The applicant described the proceedings against him as being based on a lack of statutory jurisdiction or authority, characterised by improper conduct and investigation by the Commissioner, and a breach of procedural fairness. The applicant submitted, among other things, that the Commissioner was relying on tainted evidence, but the grounds could not be examined and developed in argument without the investigation documentation. 26 Among other things, the applicant said the complaint concerned non- payment of fees and there was no complaint about practising certificate conditions, however, the Commissioner asked the applicant if the applicant had money in trust and whether the practice conditions were discussed. On the applicant’s case, there was no basis to ask the questions because there was no complaint about the topics and no own initiative investigation at the time the question was asked. The applicant seeks to develop an argument that there was no basis pursuant to the Act to ask the questions posed of the applicant and the complainant. 27 The applicant submitted that a key reason for discovery of the investigation documents was to establish if the Commissioner knew there was no own initiative investigation and no complaint about the solicitor and counsel retainer or upon what basis the Commissioner purported to proceed with an own initiative investigation on improperly obtained tainted evidence. The applicant submitted that privilege did not apply and the requested documents should have been produced. The applicant submitted that by the date of the own initiative application, investigations were complete on the issue of the practice conditions and briefing counsel. The applicant complained that despite requests, discovery was not given, and the topic changed from late payment to an investigation about practice conditions and briefing three barristers. This was said to be despite the investigation into the complainant’s complaint having been concluded before the own initiative investigation and the questions having been asked and conclusions made about evidence well before that date. The applicant submitted that a letter from the Commissioner dated 11 November 2021 exhibited to the affidavit of the applicant established those facts. Commissioner’s submissions 28 The Commissioner opposed the discovery application. -- 6 of 10 -- [2025] SASC 31 Stein J 5 29 The Commissioner contended that the dismissal application will require the Court to address two narrow issues: 1. whether the decision allegedly made was actually made given the requirements of s 77J(2) and s 77L of the Act; and 2. whether the judicial review proceedings are an abuse of process when the applicant raises the same issues in the Tribunal. 30 On the Commissioner’s position, the documents required to determine the applicant’s contention that the s 77J process miscarried because the applicant had not refused to consent to the s 77J proposal are already before the Court. Those documents are said to be the correspondence containing, and associated with, the Commissioner’s proposal to address the alleged conduct under s 77J(2), the applicant’s response, the originating application and supporting affidavit in the judicial review proceedings, and the charge and response filed in the Tribunal. 31 The Commissioner contended that the factual matters which underpin the applicant’s argument that the Commissioner’s process relied on improperly obtained, tainted evidence during an improper investigation are alleged in the applicant’s affidavit. Those allegations of fact are to be taken at face value in determining the dismissal application on the assumption the factual allegations will be made out at trial. The Commissioner contended the applicant is therefore not prejudiced on the dismissal application in making the argument that the investigation was improper and based on improperly obtained, tainted evidence. 32 The Commissioner contended that a grant of the discovery application would counteract the purpose of summary dismissal applications being brought and heard early in the proceedings before the considerable costs of interlocutory steps are taken. Efficiencies will be lost as a result of the requirement to give discovery. The Commissioner also referred to the possibility of contests over claims of legal professional privilege or public interest immunity which may be sought to be determined before the dismissal application. The Commissioner contended that seeking additional evidence through discovery where the factual allegations will be assumed to be made out gives rise to a strong inference the applicant wishes to conduct a mini trial in relation to the assertion the process relied on improperly obtained, tainted evidence. The Commissioner contended that the Court should not allow the determination of the dismissal application to be delayed by allowing an involved interlocutory process as such an outcome is contrary to the purpose of r 256.5 of the UCR. Summary dismissal principles 33 Pursuant to r 256.5(3) of the UCR, the Court must dismiss an action for judicial review unless the Court is satisfied there is a reasonable basis for the judicial review. The exercise of a power to determine an action summarily requires a practical assessment of whether the applicant has real, as opposed to merely -- 7 of 10 -- [2025] SASC 31 Stein J 6 fanciful, prospects of success.1 In assessing a summary dismissal application, the Court should not embark on a mini trial. The claim should be assessed in a summary manner, taking into account the incomplete nature of the evidence on which the decision must be based.2 When forming a view about whether a reasonable cause of action can be made out, the court will accept allegations of fact at face value and assume they can be made out at trial.3 UCR r 256 34 Rule 256 of the UCR sets out the manner in which an action for judicial review is to be commenced: by initiating application, supported by affidavit and accompanied by a statement of facts issues and contentions. The rule sets out the requirements for those documents including the material which must be exhibited to the supporting affidavit. 35 Responding documents are addressed in r 256.6 of the UCR, including the necessity to file a response to the statement of facts issues and contentions and a responding affidavit. Materials not already exhibited to the applicant’s affidavit are to be exhibited to the responding affidavit. 36 Rule 256.5 provides a mechanism for a respondent to file an interlocutory application for summary judgment. It also provides a process for filing an interlocutory application to seek an extension of time and obtain leave to proceed with the action. The rule expressly provides that no further steps are required to be taken by any party in the action) including filing responding documents) other than for the purpose of the interlocutory application until that extant application has been determined. If the rule applies, the Court will dismiss the application unless the Court is satisfied there is a reasonable basis for the action for judicial review. 37 The evident purposes of the subrule are: • first, to avoid the respondent having to incur the time and costs associated with preparing and filing the required responding materials, including in locating documents to be exhibited to a responding affidavit. • second, to avoid both parties incurring time and costs associated with ongoing preparation for the judicial review in addition to necessary preparations for the hearing and determination of the interlocutory application including avoiding any unnecessary duplication of work; 1 Vansetten v State of South Australia [2020] SASC 158 at [68] (Doyle J). 2 Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] SASC 161; (2020) 137 SASR 117 at [60] (Doyle J). 3 Rana v Hyatt Regency Hotel Ltd [2007] SASC 7 at [23] (David J). -- 8 of 10 -- [2025] SASC 31 Stein J 7 • third, to avoid both parties incurring time and costs associated with addressing other interlocutory issues prior to the determination of the interlocutory application; and • fourth, to enable the interlocutory application to be addressed efficiently, without delay and at minimal cost to the parties. 38 As would be the result in this case, requiring a respondent to discover and produce documents in advance of a summary dismissal application will defeat these purposes. Accordingly, before departing from r 256.5, there should be persuasive reasons justifying why the usual course should not be adopted. 39 Any application for discovery and production of material in advance of summary dismissal should be considered in the context of the materials filed by the applicant in support of the position and in light of the issues raised in the judicial review and summary dismissal applications. It is appropriate to take into account the fact the summary dismissal application will proceed on the assumption the allegations of fact in the supporting material can be established. 40 In this case, the materials required to address both parties’ contentions are already before the Court in the filed materials. 41 Those materials comprise the affidavits and the exhibits which include correspondence between the Commissioner and the applicant, the charge and the response to the charge. 42 In considering whether the Commissioner’s s 77J process was complete, the Court will address the application of the legislative provisions in the factual context which is set out in the affidavits and the correspondence between the parties. Those materials identify the Commissioner’s assertions about the applicant’s conduct and the applicant’s responses including to the Commissioner’s preliminary view. They also identify the chronology of relevant events, including the dates on which the complaint was made, answers to questions were provided, the Commissioner’s own motion investigation was commenced and the charge laid. That chronology is relevant to the assertions of reliance on tainted evidence and the consequential impact on the process as well as whether the s 77J process was complete. 43 The materials relevant to the Commissioner’s alternative ground of abuse of process are found in the already filed affidavits, the charge and reply to charge. 44 Irrespective of whether or not the investigation file was discoverable or could be subject to legal professional privilege or public interest immunity, the documents are not required for the purposes of addressing the summary dismissal application. The applicant has not established that lack of access to the investigation file will prejudice the applicant or prevent him from addressing the summary dismissal application in the context of the already filed material and the -- 9 of 10 -- [2025] SASC 31 Stein J 8 various allegations. Accordingly, the applicant has not shown good reason to depart from r 256.5 in light of the purposes of that rule. Conclusion and orders 45 The applicant’s application for discovery in advance of the summary dismissal application is refused. -- 10 of 10 --