A South Australian practitioner’s judicial review application into a disciplinary decision relating to fee conditions on his practising certificate has been tossed out by the Supreme Court.
David Ashley Starke was unsuccessful in judicial review proceedings concerning a charge of professional misconduct on the basis of an alleged failure to comply with his practising certificate conditions.
The conditions set out that Starke must have funds in his trust account to the credit of the client before a brief is delivered to counsel, and it is in counsel’s estimate sufficient to cover the fees.
Starke must also advise counsel of the condition at the time of first approach for briefing, and counsel must agree in writing to wait until a particular day or event for the payment of their fees.
In May 2021, the Legal Profession Conduct Commissioner (LPCC) advised Starke that a barrister briefed by him 12 months prior for a Federal Court matter had complained about allegedly unpaid fees.
The barrister alleged there was no discussion about deferred payment or conditions on Starke’s practising certificate and claimed she could not recall whether there were specific discussions about trust funds.
In response to a letter from the LPCC, Starke said the conduct occurred around the COVID-19 pandemic and when he spoke to the client and asked her to deposit counsel money into trust, “everything was done by telephone and there was no time for letters”.
In these circumstances – and on top of an office move – Starke said he was unaware of account reminders “until late in the matter”.
Starke’s judicial review application turned on the LPPC decision to initiate its own investigation into allegations he breached conditions when he briefed three counsel, including the original complainant.
In correspondence with the LPCC, Starke said separating out the non-payment of the complainant and the breach of the practising certificate was “duplicitous and the matters were part of one course of conduct which should not have been separated”.
Starke challenged the decision to “abandon the … administrative process” under the Legal Practitioners Act 1981 and lay the charge.
He asked for the decision to be set aside and sought orders that in the investigation and determination, the LPCC acted beyond jurisdiction and in contravention of the requirements of procedural fairness.
In the alternative, Starke sought an order the delegate of the commissioner be ordered to review the decision made and reconsider the investigation process, evidence, and the reasonable determinations that were open.
Although the Supreme Court was not satisfied, it did note that the course of conduct issue is one Starke could choose to agitate before the tribunal if a question of penalty arises.
The case: Starke v Legal Profession Conduct Commissioner [2025] SASC 140.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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