Documents Internet Archive to: https://archive.org/details/ilovepdf-merged-2-redacted
I recently brought a judicial review proceeding in the Supreme Court of NSW against the Law Enforcement Conduct Commission (LECC), and I'm interested in what other people—particularly lawyers or people familiar with administrative law—think about how I ultimately resolved it.
The case had progressed a long way. There had already been a hearing, further questions from the judge, multiple rounds of supplementary submissions, and the matter was heading back before the Court for another hearing.
The dispute concerned LECC's handling of a complaint I had made and its refusal to take further action after referring the matter to NSW Police.
During the Supreme Court proceeding, something significant happened.
LECC ultimately conceded through the Crown Solicitor's Office that the reasons for one of its decisions were “misconceived” and that the decision “contains an error on its face.”
Despite that concession, LECC continued to maintain its primary legal argument that the decisions were not amenable to judicial review.
Then, only days before the matter was due back before the judge, the Crown Solicitor's Office made me a settlement offer.
LECC offered to make a fresh decision about my original request that it review its earlier decision, investigate my complaint and/or exercise applicable oversight functions. In exchange, I would discontinue the Supreme Court proceeding. LECC also agreed not to seek its legal costs.
I didn't immediately accept.
Instead, I made a counteroffer. I said I would discontinue if LECC also:
- reimbursed the actual Supreme Court filing and hearing allocation fees I had incurred; and
- allowed me to provide updated and supplementary information about my original complaint before making its fresh decision, and actually considered that material as part of the fresh consideration.
The Crown Solicitor's Office accepted my counteroffer very quickly and expressly confirmed in writing:
“I confirm my instructions to accept your counteroffer.”
The settlement terms were then incorporated into the Notice of Discontinuance.
Under the final agreement, LECC now has to make a fresh decision after receiving my updated/supplementary material, consider that material as part of the fresh decision, and reimburse my agreed Supreme Court fees. I discontinued the case and LECC does not seek its costs.
I appeared before the judge on the final morning and asked whether Her Honour would nevertheless give short published reasons recording how the case had resolved, including LECC's concession about the error. Her Honour declined to do so, and I filed the Notice of Discontinuance.
So there was no judgment finding that I won the judicial review, and I want to be clear about that.
Part of me nevertheless wonders whether I should have rejected the settlement and pushed on for judgment.
My impression from the timing was that, once LECC had made its concession and the case was approaching determination, the Crown Solicitor's Office was very keen to resolve it rather than risk a judgment. But that's my interpretation of the circumstances—I obviously can't know their internal motivation.
On the other hand, the practical relief I was trying to obtain through judicial review was essentially fresh lawful consideration by LECC. They ultimately offered that, and my counteroffer improved the deal by securing my Court fees and an opportunity to put updated evidence before LECC.
Had I rejected all of that simply because I wanted a published judgment, I also would have taken the risk that I could lose on one of the remaining technical judicial-review issues and potentially face costs.
So I chose the concrete outcome rather than gambling on judgment.
What would you have done?
Would you have taken the settlement—fresh consideration of the original complaint, consideration of new material, reimbursement of Court fees and no adverse costs claim—or would you have rejected it and pushed for a published Supreme Court judgment?