Research – legal resource summary – The Commonwealth of Australia

Professional Liability, Public Officer Accountability, and the Rights of Men and Women

Reference: LAW-2026-06-11 | Compiled: 11 June 2026, AI assisted.

Module A – Source Document: “Turning a Blind Eye” (2001)

Full title: Turning a Blind Eye: Professional Liability and Responsibility Dealing with Clients – What Are the Limits? Fundamental Concepts and Illustrative Examples

Author: Virginia Shirvington BA, LLB (Syd), Senior Ethics Solicitor, Law Society of New South Wales

Date: February 2001

Currency note: Written under the Legal Profession Act 1987 (NSW) and the Revised Professional Conduct and Practice Rules 1995 (NSW). Both have been superseded – the 1987 Act by the Legal Profession Act 2004 (NSW) and subsequently by the Legal Profession Uniform Law (operative in NSW and Victoria). The ethical principles remain broadly applicable; specific statutory references require updating.

Core thesis: A solicitor who turns a blind eye to a client’s fraudulent or improper activity is not protected from professional or legal liability. Passive non-intervention can be as culpable as active participation.

Closing statement: “You do not need to be actively assisting or to be getting a direct benefit to incur a liability. Turning a blind eye will not save you.”

A.1 The Competing Duties of Lawyers

Solicitors owe simultaneous duties to the court and the administration of justice, the client, the public, and the profession. The duty to the client cannot override the duty to justice.

Lord Reid in Rondel v Worsley [1969] 1 AC 191: “Every Counsel has a duty to his client fearlessly to raise every issue, advance every argument and ask every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the Court concerned in the administration of justice, he has an overriding duty to the Court, to the standards of his profession, and to the public…”

A.2 Key Categories of Conduct Examined

Personal Illegal Activity: Conduct outside legal practice demonstrating unfitness remains grounds for disciplinary action and removal from the Roll.

Abuse of Process and Spurious Litigation: Costs can be ordered personally against a solicitor who brings proceedings with no rational basis or for an ulterior purpose. Key cases:

Levick v Deputy Commissioner of Taxation (Full FCA, 2000) – costs ordered against solicitor who raised unarguable points in bankruptcy proceedings
White Industries (QLD) Pty Ltd v Flower and Hart (1998) 156 ALR 169 – deliberate conduct with ulterior purpose required
Ridehalgh v Horsefield [1994] Ch 205 (English Court of Appeal) – a legal representative is not entitled to use litigious procedures for purposes for which they were not intended

Defrauding the Revenue: Splitting consideration between property and chattels to reduce stamp duty. Saunders v Edwards [1987] 2 All ER 651: professional misconduct for false apportionment.

Defrauding the Mortgagee: Inflating purchase price to obtain finance beyond actual equity. A solicitor who puts the client and broker on notice of the fraudulent nature of the arrangement and from whom instructions are then withdrawn has done what is required.

Death of Client Mid-Conveyancing: Power of attorney ceases on death. Producing a transfer to the Land Titles Office on behalf of a deceased vendor would be misleading. Practical solution: urgent grant of probate (ad colligenda bona defuncti).

False Attestation of Security Documents: Witnessing signatures not signed in one’s presence, or certifying explanations of mortgages never given, is professional misconduct. Cases: re Mitchell [1992] 1 LPDR 6; re Rigelsford [1995] LPDR 1; Fraser v Council of the Law Society of NSW (CA NSW, 1992).

Criminal Complicity – Forsyth’s Case: R v Forsyth (1990) 20 ATR 1818: Victorian barrister acquitted on direction of conspiracy to defraud the Commonwealth. Knowledge of unlawful purpose was insufficient without more. McHugh J (Perth Summer School, 1988): “When the lawyer goes beyond advice and draws documents for the purpose of enabling a client to achieve an objective, it is almost impossible to contend that the adviser does not aid the commission of any offence which results.”

Fraudulent Insurance Claims: A solicitor cannot continue to act on a claim known to be fraudulent. Advising withdrawal likely relieves further reporting obligation.

Blackmail: A solicitor must not write demanding money in return for non-disclosure where the client has no cause of action. Breach of Rule 34.3.

A.3 Reporting Obligations vs Duty of Confidentiality

Section 316(1), Crimes Act 1900 (NSW) – statutory misprision: Failure without reasonable excuse to report knowledge of a serious indictable offence carries two years imprisonment.

Rule 2, Revised Professional Conduct and Practice Rules: A practitioner must not disclose confidential information acquired during the retainer unless:

2.1.1 – the client authorises disclosure
2.1.2 – the practitioner is permitted or compelled by law to disclose
2.1.3 – the practitioner discloses information for the sole purpose of avoiding the probable commission or concealment of a felony, in circumstances where the law would probably compel disclosure despite a claim of legal professional privilege

Senior Counsel’s opinion (Ethics Committee): The duty of confidentiality under Rule 2 constitutes a “reasonable excuse” under s 316(1). The Ethics Committee expressed significant discomfort with this, considering “reasonable excuse” ought to be limited to legally privileged material.

NSW Law Reform Commission (2000): Recommended repeal of the primary offence in s 316(1) while retaining the compounding offence.

Clause 5A, Crimes (General) Regulation 1995 (NSW): Requires the Attorney-General’s approval before any prosecution of a legal practitioner under s 316 where knowledge was obtained in the course of professional practice.

A.4 Prevention – Anticipatory Offences and Threats of Harm

Where a client threatens death or serious physical harm to another, the duty of confidentiality may yield. A solicitor reporting such a threat is unlikely to face successful disciplinary action. Anticipated perjury by a third party creates difficulty – no offence has yet been committed, but the solicitor cannot turn a blind eye.

Module B – Legislative Framework Holding Legal Professionals to Standard

B.1 Western Australia

The Legal Profession Act 2008 (WA) and the Legal Profession Conduct Rules 2010 (WA) are the primary state instruments. WA has not adopted the Legal Profession Uniform Law.

B.2 Commonwealth Acts – Current

Crimes Act 1914 (Cth): General criminal liability. No exemption for solicitors from aiding, abetting, counselling or procuring (per s 11.2 Criminal Code Act 1995 (Cth)).

Criminal Code Act 1995 (Cth): Principal Commonwealth criminal statute. Relevant provisions: fraud on the Commonwealth (Division 135); money laundering (Division 400); conspiracy. The Forsyth’s Case analysis applies directly.

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) – AML/CTF Act: The most significant current development. Following December 2024 amendments (Tranche 2), lawyers providing “designated services” become “reporting entities” from 1 July 2026. Designated services include certain conveyancing, trust account, and company/trust formation services. The regime imposes:

Enrolment with AUSTRAC (from 31 March 2026; within 28 days of first providing a designated service thereafter)
Customer Due Diligence obligations
A duty to file Suspicious Matter Reports (SMRs)
A tipping-off prohibition – the solicitor must not disclose to a client that an SMR has been or is being made

The tipping-off prohibition directly replicates at Commonwealth level the s 316/Rule 2 dilemma in the Shirvington paper, but now with statutory force. Civil penalty breach is relevant to fitness to hold a practising certificate; criminal liability also arises. Exemptions apply for community legal centres, legal aid, and duty lawyer services. The Law Council of Australia was consulting (as at March 2026) on proposed ASCR amendments to address the tension created.

Competition and Consumer Act 2010 (Cth) – Australian Consumer Law: Prohibits misleading or deceptive conduct (ACL s 18) and unconscionable conduct. Solicitors providing legal services are engaged in trade or commerce and are not exempted. Maximum penalties for false and misleading representations were increased from 28 March 2026.

Privacy Act 1988 (Cth): Legal practices handling personal information are generally “APP entities” bound by the Australian Privacy Principles.

Proceeds of Crime Act 2002 (Cth): Applies to solicitors handling funds or assets where there are reasonable grounds to suspect a proceeds-of-crime connection.

Judiciary Act 1903 (Cth), ss 55B and 55C: Federal courts retain inherent jurisdiction over practitioners admitted before them.

Corporations Act 2001 (Cth): Solicitors advising on corporate matters may be liable as accessories for assisting breaches of directors’ duties (ss 79, 183, 184).

B.3 The Australian Solicitors’ Conduct Rules (ASCR)

The ASCR state the national professional and ethical obligations, made binding by state and territory legislation. Key rules:

Rule 3: Paramount duty to the court and the administration of justice
Rule 4: Duty not to engage in dishonest or misleading conduct
Rule 33: No contact with a represented party without the other solicitor’s consent, subject to limited exceptions where the solicitor fails to respond after a reasonable time
Rule 34: Not making statements that mislead, intimidate, or grossly exceed the legitimate assertion of the client’s rights

Module C – Silence of the Receiving Party and Their Legal Counsel

C.1 Foundational Position

There is no general duty in Australian law on a receiving party, or their solicitor, to respond to a notice or demand from a private party. Silence is not of itself unlawful outside specific statutory or procedural contexts.

C.2 Obligations on the Receiving Party’s Solicitor

There is no ASCR rule requiring reply within a specified period. Custom is 14 days. Once a solicitor is retained and the other side knows it, the no-contact rule (Rule 33) protects the represented party from direct contact. That protection is displaced where reasonable efforts have been made to notify the solicitor, the solicitor has failed to reply after a reasonable time, and there is a reasonable basis for proceeding.

A solicitor who advises or permits silence where the served documents raise genuine legal exposure for the client risks:

Breaching the paramount duty to the court (Rule 3)
Breaching the duty not to engage in dishonest or misleading conduct (Rule 4)
Potentially assisting a client in conduct that harms a third party – which the Shirvington paper identifies as capable of constituting professional misconduct without active participation

C.3 Pre-Litigation Obligations

Civil Dispute Resolution Act 2011 (Cth): Parties must take “genuine steps” to resolve a dispute before filing in the Federal Court. A solicitor who advises ignoring served documents risks adverse costs consequences. WA Supreme Court Civil Procedure Rules impose equivalent obligations.

C.4 Public Bodies – Administrative Law

The common law duty of procedural fairness requires a decision-maker to acknowledge and consider a submission affecting rights. The Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) provides for review of a failure to make a decision where there is a duty to decide. Mandamus is available to compel performance of a public duty. The Judicial Review Act 2000 (WA) covers equivalent ground for WA State agencies.

C.5 What Can Be Formally Demanded from Counsel

No rule compels a solicitor to respond to a private demand for a statement. However, the following are legitimate and build a record:

A formal written request that the solicitor confirm whether instructions have been received
A Calderbank offer (without prejudice save as to costs) – silence or rejection is evidentially damaging on costs in any subsequent proceeding
A notice that failure to respond within a specified period will result in the matter being treated as unresolved and proceeding accordingly, and that the record of non-response will be placed before any subsequent tribunal or court
Invocation of qui tacet consentire videtur on the record

C.6 Regulatory Levers

Escalation path: formal record-building and Calderbank offers; pre-action correspondence referencing pre-litigation obligations; formal complaint to the Legal Profession Complaints Committee (WA) or Law Society; once proceedings are commenced, the court’s own power to control parties and their legal representatives, including costs orders against solicitors personally.

Module D – Public Officers: The Changed Framework

D.1 Foundational Difference

The solicitor framework centres on a self-regulating profession with a paramount duty to the court. The public officer framework centres on the rule of law – the requirement that public power be authorised, transparent, proportionate, and exercised in good faith.

D.2 The Three Categories of Public Officer Wrongdoing

Misfeasance in Public Office: Active or knowingly unlawful conduct. The mental element established in Northern Territory v Mengel (1995) 185 CLR 307 requires targeted malice or knowing/reckless indifference to unlawfulness and resulting harm. A high threshold.

Nonfeasance: Failure to exercise a duty at all. Addressed through mandamus, but only where a specific legal duty to act (not merely a discretion) can be identified.

Maladministration: Poor, inefficient, or procedurally defective conduct without the mental element for misfeasance. Addressed through ombudsman complaints and administrative review, not tort. These three categories must be kept distinct as they attract different remedies.

D.3 Legislative Framework for Public Officers

Public Governance, Performance and Accountability Act 2013 (Cth) – PGPA Act: Imposes on officials: duty of care and diligence (s 25); duty to act honestly, in good faith and for proper purpose (s 26); duty in relation to use of position (s 27); duty in relation to use of information (s 28); duty to disclose interests (s 29). No direct civil or criminal penalties under the PGPA Act itself, but employment sanctions under the Public Service Act 1999 (Cth) may result. Any claim that an officer can breach finance law and still be acting in good faith is unambiguously wrong.

Public Service Act 1999 (Cth): Governs APS employees. Imposes APS Values and APS Code of Conduct. Breach can result in termination.

Criminal Code Act 1995 (Cth): Specific offences applying to public officers: abuse of public office (Division 142); bribery (Division 141); fraud on the Commonwealth (Division 135). Direct criminal penalties apply.

Administrative Decisions (Judicial Review) Act 1977 (Cth): Provides for judicial review of Commonwealth administrative decisions. Failure to decide where there is a duty to decide is reviewable. Mandamus is available.

Ombudsman Act 1976 (Cth): Commonwealth Ombudsman investigates maladministration. No power to award damages, but findings carry significant reputational and political consequences and can compel a response.

Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) and Australian Human Rights Commission Act 1986 (Cth): Impose obligations on Commonwealth officers to act compatibly with human rights in the exercise of public functions.

Corruption, Crime and Misconduct Act 2003 (WA) – CCM Act: Primary anti-corruption statute in WA, administered by the Corruption and Crime Commission (CCC). Covers serious misconduct including performance of a public function in a manner that is not honest or impartial, breach of trust, and misuse of information or material obtained in the course of public duties.

WA State instruments: Public Sector Management Act 1994 (WA); Parliamentary Commissioner Act 1971 (WA) (WA Ombudsman); Judicial Review Act 2000 (WA).

D.4 Key Cases for Public Officer Context

Case	Relevance
Northern Territory v Mengel (1995) 185 CLR 307	Foundational Australian authority for misfeasance in public office; the four elements; Brennan J on reckless indifference
Three Rivers District Council v Bank of England [2003] 2 AC 1	Leading UK authority on misfeasance; adopted in Australian courts
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1	Nonfeasance – specific duty of care to the plaintiff must be established; high threshold
Minister for Immigration v Teoh (1995) 183 CLR 273	Legitimate expectations created by ratified international treaties; decision-maker who departs without hearing the affected party breaches procedural fairness
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476	Principle of legality; privative clauses cannot exclude review of jurisdictional error
Kirk v Industrial Court of NSW (2010) 239 CLR 531	State legislature cannot remove Supreme Court jurisdiction over jurisdictional error
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337	Rule against bias; fair-minded lay observer test
Commonwealth v Verwayen (1990) 170 CLR 394	Estoppel: detriment includes time, effort, stress and anxiety in pursuing litigation – not only financial loss (Mason CJ at 448)

Module E – What a Man or Woman Can Do to Require Truth and Fair Dealing from Public Officers

E.1 The Foundational Instruments – Unrepealed

Magna Carta 1297 (25 Edw I, c 29): No free man shall be taken, imprisoned, dispossessed, outlawed, exiled, or destroyed, nor shall any Crown proceeding be taken against him, except by the lawful judgment of his peers or by the law of the land. An original is held at Parliament House, Canberra. Received into Australian law. Unrepealed.

Liberty of Subject Act 1354 (28 Edw III, c 3): None shall be condemned without due process of law. Unrepealed.

Observance of Due Process of Law Act 1368 (42 Edw III, c 3): None shall be put to answer without due process of law. Extends the protection to the compulsion to answer at all. Unrepealed.

Bill of Rights 1688 (1 Will and Mar Sess 2, c 2): Rights and liberties of the subject as birthright. Excessive fines, excessive punishments, and suspension of laws without parliamentary consent prohibited. Received into Australian law.

These instruments together establish four irreducible requirements before any public officer can lawfully impose a consequence on a man or woman: lawful authority identifiable and traceable from its constitutional source; opportunity to be heard before any adverse determination; conformity with natural justice and procedural fairness; and a determinable legal basis for any coercive consequence that can be examined and contested.

E.2 The Right to Know the Authority Relied Upon

A public officer exercising power must identify the source of that power. Where authority is claimed through delegation, the chain must be traceable and unbroken (delegatus non potest delegare). Where the officer cannot identify the authority, the act is potentially ultra vires and void regardless of form.

E.3 The Right to Be Heard – Audi Alteram Partem

Before any adverse decision is made, a man or woman must have notice of the case against him or her and a genuine opportunity to respond. A decision made in breach of the hearing rule is not merely unfair – it may be void for jurisdictional error and subject to judicial review.

E.4 The Right to Reasons – ADJR Act s 13

Under s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), a person entitled to apply to the Federal Court under s 5 in relation to a decision to which the Act applies may, by notice in writing to the person who made the decision, request that person to furnish a written statement setting out the findings on material questions of fact, the evidence or other material on which those findings were based, and the reasons for the decision. Under s 13(2), the person who made the decision must, as soon as practicable and within 28 days of receiving the request, prepare that statement and furnish it personally.

The obligation is placed by the Act on the person who made the decision – not on the agency as an institution. Section 17 of the Act makes separate provision for circumstances where the decision-maker no longer holds the relevant office, confirming the personal character of the obligation. The statement must be that of the officer who decided, not a generic institutional response.

Three qualifications must be observed:

The right does not apply to decisions already accompanied by adequate reasons, to decisions in relation to which s 268 of the Administrative Review Tribunal Act 2024 applies, or to decisions listed in Schedule 2 of the ADJR Act. Schedule 2 contains a significant range of excluded classes including certain defence, security, immigration, and revenue matters. Schedule 2 must be checked before any reliance on s 13 is placed.
The right is time-limited. Where the written decision was furnished to the applicant, the request must generally be made within 28 days. In other cases, within a reasonable time. A request made outside that period may be refused, though the court has power under s 13(6) to declare that a request was made within a reasonable time.
Where the decision-maker considers the applicant was not entitled to make the request, the decision-maker may within 28 days give notice of that opinion or apply to the court under s 13(4A), and is not required to comply until the court determines the question.

E.5 Freedom of Information

The Freedom of Information Act 1982 (Cth) and the Freedom of Information Act 1992 (WA) provide a statutory right to access documents held by government agencies. A well-constructed FOI request directed to every body in the chain creates a comprehensive evidentiary foundation. Where records are not produced, the presumption runs against the institution: omnia praesumuntur contra spoliatorem.

E.6 Procedural Fairness – The Bias Rule

Nemo debet esse judex in propria causa. The test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337: whether a fair-minded lay observer, knowing all the circumstances, might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question. A public officer who knows of a conflict, declines to disclose it, and proceeds to make a decision adverse to a man or woman has exposed that decision to challenge for actual or apprehended bias and, potentially, bad faith.

In equity, where one party is aware that circumstances exist indicating that the other party is operating under a serious mistake or misapprehension about a fundamental matter and deliberately sets out to ensure that the other party does not become aware of that mistake, equity may intervene to prevent unconscionable advantage being taken of that position: Taylor v Johnson (1983) 151 CLR 422 (Mason ACJ, Murphy and Deane JJ). Note: Taylor v Johnson is a contract rescission case decided on principles of unilateral mistake and unconscionable dealing. It is cited here for the equitable principle only, and is not a direct public officer accountability authority.

E.7 Judicial Review Remedies

Mandamus: Compels a public officer to perform a public duty that has been failed or refused. Available where an identifiable legal duty (not merely a discretion) has not been performed.
Certiorari: Quashes a decision already made that was beyond power, made in breach of natural justice, based on an error of law, or made for improper purpose.
Prohibition: Prevents a public officer or body from continuing with a course of action beyond their jurisdiction.

Kirk v Industrial Court of NSW (2010) 239 CLR 531: A State legislature cannot remove the Supreme Court’s jurisdiction to grant relief for jurisdictional error. That jurisdiction cannot be ousted.

E.8 Ombudsman

The Commonwealth Ombudsman and WA Ombudsman investigate maladministration. Accessible and cost-free as a first step. Creates an independent investigative record and can produce findings that compel an agency response, documenting the pattern of conduct for subsequent proceedings.

E.9 The Corruption and Crime Commission (WA) and NACC

Where conduct crosses into serious misconduct under the Corruption, Crime and Misconduct Act 2003 (WA), referral to the CCC is available. At Commonwealth level, the National Anti-Corruption Commission (NACC, established 2023) investigates serious or systemic corrupt conduct by Commonwealth public officials. These require material supporting the higher threshold of corrupt or seriously improper conduct.

E.10 International Instruments

Australia ratified the International Covenant on Civil and Political Rights (ICCPR) in 1980. Minister for Immigration v Teoh (1995) 183 CLR 273: ratification creates a legitimate expectation that decision-makers will act in conformity with the treaty. A decision-maker who departs from treaty obligations without affording the affected party an opportunity to be heard on that departure acts in breach of procedural fairness.

Module F – Compelling a Public Officer to Identify Themselves by Name

F.1 The Structural Reality

There is no single statute expressly requiring every public officer to sign correspondence in their own name. Institutional practice of role-based signatures – “FOI Officer”, “Customer Service Officer”, “Revenue Officer” – is a structural shield deliberately deflecting personal accountability. However, several mechanisms compel identification.

F.2 Statement of Reasons Under ADJR Act s 13

As set out in Module E.4, the obligation to furnish a statement of reasons is placed personally on the person who made the decision under s 13(2). The statement must be that of the decision-maker. Best practice – and increasingly required content – includes identification of the decision-maker by name and the source of that person’s authority, most likely a delegation instrument. A statement that does not identify the decision-maker by name is inadequate on its face and may be an error of law, subject to an order for further and better particulars under s 13(7). All three qualifications at Module E.4 apply before relying on this provision.

The standard required of a written statement of reasons was confirmed in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480: the statement must explain the actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.

F.3 The Delegation Chain

Every officer exercising a delegated power must be able to identify: the head of power in the statute; the instrument of delegation; and the position or person to whom the power was delegated. A formal written demand for the full name of the officer who made the decision, the title and classification of that officer, the number and date of the instrument of delegation, and the name of the officer who granted the delegation, is a lawful demand grounded in the rule of law. An officer who cannot produce a traceable delegation is acting without authority. An act without authority is ultra vires and void.

F.4 FOI as a Name-Identification Tool

An FOI request can be directed specifically at internal correspondence, file notes, emails, and delegation instruments in relation to the matter. Internal documents routinely contain the names of the officers involved. APS employees must not provide false or misleading information in response to a request for information made for official purposes. An officer who provides an FOI response that obscures the identity of the decision-maker where that identity is material is at risk of breaching the APS Code of Conduct.

F.5 APS Code of Conduct

APS employees are accountable for their decisions. The conduct of public servants can have implications for community confidence in the administration of an agency. A pattern of deliberately anonymised correspondence in matters affecting rights, designed to frustrate accountability, is arguably inconsistent with the Code. A formal complaint to the agency head, and if unsatisfied to the Australian Public Service Commissioner, is a legitimate escalation step.

F.6 Ombudsman Complaint

An Ombudsman investigation requires the agency to identify who did what and when. The Ombudsman has power to compel production of documents and to require agencies to answer. The investigation process invariably lifts the anonymous veil because the Ombudsman cannot assess conduct without knowing whose conduct it is.

F.7 Formal Notice Demanding Identification

Where correspondence is received signed only by a role title, a formal response can require: the full name of the officer who authored or signed the communication; the full name and title of the officer who made the underlying decision; the delegation or authority under which the officer acted; and confirmation that the officer accepts personal responsibility in his or her own capacity as a man or woman exercising public power. The notice can expressly state that a response signed only by a role title will be treated on the record as a response from an unidentified agent whose authority has not been established, and will be given the weight appropriate to an anonymous instrument.

F.8 Court Proceedings

Where the matter proceeds to judicial review, the respondent must be identified as a named officer or named body. The prospect of proceedings in which the officer must stand identified before the court tends to focus institutional minds at an earlier stage.

F.9 The Underlying Principle

No statute grants a public officer the right to remain anonymous when exercising power over a man or woman. The right to know who is acting against one is grounded in the foundational principles of natural justice. An anonymous decision-maker has not properly identified themselves as holding the required authority, which goes directly to the validity of the act.

Module G – Key Cases Across All Topics

Case	Relevance
Incorporated Law Institute of NSW v Meagher (1909) 9 CLR 655	Court’s duty not to accredit any person as worthy of public confidence who cannot establish that right – Isaacs J
NSW Bar Association v Thomas (No 2) (1989) 18 NSWLR 193	Barrister’s duty of invariable candour and honesty to a court – Kirby P
Tyrrell v Bank of London (1862) 10 HLC 26	No relation known to society requiring more faithful observance than solicitor and client – Lord Westbury
Rondel v Worsley [1969] 1 AC 191	Client duty vs overriding duty to court, standards, and public – Lord Reid
Law Society of NSW v Harvey [1976] 2 NSWLR 154	Fiduciary nature of solicitor’s duty – ordinary concepts of fair dealing between honourable men – Street CJ
Levick v Deputy Commissioner of Taxation (Full FCA, 2000)	Costs ordered personally against solicitor for raising unarguable points
White Industries (QLD) Pty Ltd v Flower and Hart (1998) 156 ALR 169	Deliberate or conscious decision for ulterior purpose required for abuse of process liability – Goldberg J
Ridehalgh v Horsefield [1994] Ch 205	Legal representative not entitled to use litigious procedures for purposes for which not intended
Anstis v Anstis [1999] FamCA 842	Costs orders against legal representatives in Family Court proceedings
Saunders v Edwards [1987] 2 All ER 651	False apportionment of consideration to avoid stamp duty – professional misconduct
R v Forsyth (1990) 20 ATR 1818	Drawing documents to achieve unlawful objective near-impossible to defend – knowledge of unlawful purpose insufficient without more
Demetrios v Gikas Dry Cleaning Industries (1991) 22 NSWLR 561	Civil liability for collateral fraud in witnessing – Mahoney JA
Fraser v Council of the Law Society of NSW (CA NSW, 1992)	False certificate – fine substituted for removal from roll – Kirby P
Commonwealth v Verwayen (1990) 170 CLR 394	Estoppel: detriment includes time, effort, stress and anxiety in pursuing litigation – not only financial loss – Mason CJ at 448
Northern Territory v Mengel (1995) 185 CLR 307	Foundational misfeasance in public office authority – four elements; targeted malice or reckless indifference to unlawfulness and harm
Three Rivers District Council v Bank of England [2003] 2 AC 1	Leading misfeasance authority adopted in Australian courts
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1	Nonfeasance – specific duty of care to plaintiff must be established
Minister for Immigration v Teoh (1995) 183 CLR 273	Ratified treaty creates legitimate expectation of conforming conduct in decision-making
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476	Privative clauses cannot exclude review of jurisdictional error
Kirk v Industrial Court of NSW (2010) 239 CLR 531	State legislature cannot remove Supreme Court jurisdiction over jurisdictional error
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337	Rule against bias – fair-minded lay observer test
Taylor v Johnson (1983) 151 CLR 422	Unilateral mistake and unconscionability in contract: equity may intervene where a party knows of another’s serious mistake and deliberately ensures that party does not become aware of it – Mason ACJ, Murphy and Deane JJ. Cited for equitable principle only; not a public officer accountability authority.
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480	Statement of reasons must explain the actual path of reasoning in sufficient detail to enable a court to see whether any error of law is involved

Module H – Latin Maxims

Maxim	Meaning	Application
Qui tacet consentire videtur	He who is silent is taken to consent	Record value of non-response to a served notice
Audi alteram partem	Hear the other side	Procedural fairness – must hear a person affected before deciding
Nemo debet esse judex in propria causa	No man should be judge in his own cause	Rule against bias in decision-making
Delegatus non potest delegare	A delegate cannot further delegate	Authority chain must be traceable and unbroken
Fiat justitia ruat caelum	Let justice be done though the heavens fall	Overriding duty to justice over convenience
Ignorantia juris non excusat	Ignorance of the law is no excuse	Solicitor cannot claim ignorance of clear rules
Ex dolo malo non oritur actio	From fraud no action arises	Courts will not assist a fraudulent purpose
In pari delicto potior est conditio defendentis	Where parties are equally at fault, the defendant’s position is stronger	Relevant where solicitor participates in fraud
Veritas nihil veretur nisi abscondi	Truth fears nothing but concealment	Candour obligations to court and parties
Ubi jus ibi remedium	Where there is a right, there is a remedy	Every unlawful exercise of public power has an available remedy
In dubio pro libertate	In doubt, in favour of liberty	Ambiguous statute interpreted to preserve liberty
Omnia praesumuntur contra spoliatorem	All things are presumed against one who destroys or withholds evidence	Failure to produce records raises presumption against the institution
Veritas odit moras	Truth is ill-served by delay	Persistent non-response and withholding of information
Ad colligenda bona defuncti	For the purpose of collecting the goods of the deceased	Urgent grant of probate in mid-conveyancing death situations

Module I – Practical Record-Building Framework

I.1 Non-Response by a Private Party or Their Solicitor

Confirm service – registered mail tracking, email server confirmation, notarial record where applicable.
Allow the stated response period to expire – record the default date expressly.
Issue a formal default notice referencing the original notice, the default date, and the specific obligations not answered.
Invoke qui tacet consentire videtur expressly on the record.
Issue a Calderbank offer – without prejudice save as to costs, specifying terms and a response deadline.
If a solicitor is known to be retained, notify that solicitor that Rule 33 is acknowledged but that failure to respond after a reasonable time will result in direct communication with the client.
Document all detriment incurred by reason of non-response, including time, effort, stress and anxiety (informed by Commonwealth v Verwayen (1990) 170 CLR 394, Mason CJ at 448).
Consider a complaint to the Legal Profession Complaints Committee (WA) or Law Society if the solicitor’s silence appears to be facilitating evasion of obligations carrying serious consequences.

I.2 Non-Response or Anonymised Correspondence by a Public Body

Confirm service and identify the specific statutory duty engaged.
Allow the stated response period to expire – characterise the non-response as nonfeasance or maladministration on the current evidence.
Issue a formal default notice invoking qui tacet consentire videtur, identifying the specific statutory duty not performed, and placing the misfeasance-nonfeasance-maladministration taxonomy on the record.
Formally demand: the full name of the officer who made or signed the communication; the full name and title of the decision-maker; the delegation instrument (number and date); and confirmation that the officer accepts personal responsibility.
Make an FOI request directed at all documents held in relation to the matter including internal communications, delegation instruments, and records of decision-making.
Lodge an Ombudsman complaint (Commonwealth or WA as applicable) for maladministration – creates an independent investigative record and compels agency engagement.
Refer to the CCC (WA) or NACC where there is evidence of serious misconduct meeting the applicable threshold.
Issue a Calderbank offer – costs consequences run against public bodies as they do against private parties.
File for judicial review under the ADJR Act (Cth) or Judicial Review Act 2000 (WA) – seeking mandamus to compel performance of the identified statutory duty, and/or certiorari to quash an invalid decision.
Document all detriment for estoppel and costs purposes (informed by Commonwealth v Verwayen (1990) 170 CLR 394).
Reserve the misfeasance in public office cause of action on the record – expressly noting that the mental element under Northern Territory v Mengel (1995) 185 CLR 307 has not yet been established to the level required for proceedings, but that the facts are consistent with the second limb and the position is reserved pending further conduct by the officer.

This resource summary covers the complete chat session of 11 June 2026. It draws on the “Turning a Blind Eye” paper (Shirvington, 2001), primary Commonwealth and WA legislation verified against current sources, Law Council of Australia publications, and judicial authority. It is a research and reference tool only – not legal advice. All legislation and conduct rules should be verified against the current version in force before reliance.

Compiled by: Claude (Anthropic) at the direction of John Henry Session reference: LAW-2026-06-11 | Accuracy review completed: 11 June 2026

Last Updated 3 months ago

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