23 Market Street Developments v Victorian Legal Services Board
[2020] VCC 1212
•21 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-20-03378
| 23 MARKET STREET DEVELOPMENTS PTY LTD | Plaintiff/ |
| v | |
| VICTORIAN LEGAL SERVICES BOARD | Defendant/ Respondent |
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JUDGE: | HER HONOUR JUDGE BRIMER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 August 2020 | |
DATE OF JUDGMENT: | 21 August 2020 | |
CASE MAY BE CITED AS: | 23 Market Street Developments v Victorian Legal Services Board | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1212 | |
REASONS FOR JUDGMENT
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Subject: APPEAL
Catchwords: Application for leave to appeal out of time under s247(1) Legal Profession Uniform Law from a decision of the Victorian Legal Services Board to disallow a claim against the fidelity fund under s240(4)(d) of the Legal Profession Uniform Law
Legislation Cited: Legal Profession Uniform Law Application Act 2014; Legal Profession Uniform Law, s247(6); County Court Civil Procedure Rules 2018, r58.01(g)
Cases Cited:23 Market Street Developments Pty Ltd v Victorian Legal Services Board (Legal Practice) [2020] VCAT 898
Judgment: The County Court does not have power to grant leave to appeal out of time in respect of an appeal under s247(1) of the Legal Profession Uniform Law
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff/Applicant | Mr P R Miller | Williams Winter Solicitors |
| For the Defendant/Respondent | Mr D F McAloon | Victorian Legal Services Board + Commissioner |
HER HONOUR:
1 This is an application for leave to appeal from a decision of the Victorian Legal Services Board (the Board) on 18 March 2020 to disallow a claim against the fidelity fund under s240(4)(d) of the Legal Profession Uniform Law (Uniform Law).[1]
[1]Schedule 1 to the Legal Profession Uniform Law Application Act 2014 (the Act)
2 Under s247(1) of the Uniform Law, a claimant may appeal to the designated tribunal against a decision of the Board to disallow a claim. Under s247(2) of the Uniform Law, an appeal against a decision must be lodged within 30 days of receiving written notice about the decision.
3 On 17 April 2020, the applicant filed an appeal under s247(1) of the Uniform Law in the Victorian Civil and Administrative Tribunal (VCAT), within the 30 day time limit (the appeal).
4 On 28 May 2020, the Board advised the applicant by letter that it disputed that VCAT has jurisdiction to hear and determine the appeal (the jurisdictional issue).
5 The jurisdictional issue was ventilated in correspondence between the applicant and the Board and at a directions hearing on 3 June 2020 before Senior Member Smithers. On 11 June 2020, the applicant’s solicitors sent a letter to the Board stating that the applicant would ‘apply to transfer’ the VCAT proceeding to the County Court to avoid any dispute about VCAT’s jurisdiction. The respondent did not object to the proposed application. On 18 June 2020, the applicant filed an application under s77 of the Victorian Civil and Administrative Act 1998 (Vic) (VCAT Act) (the s77 application) with a view to having the proceeding at VCAT struck out and referred to the County Court.
6 The s77 application was referred to me as a Vice President of VCAT. I raised the question with the parties whether VCAT has power to make an order under s77 of the VCAT Act if it has no jurisdiction to hear the appeal. The applicant reviewed the relevant authorities and informed VCAT and the Board that it considers that VCAT has no power to exercise the discretion under s77 of the VCAT Act if it has no jurisdiction to determine the appeal.
7 On 28 July 2020, the applicant filed an Originating Motion in the County Court of Victoria seeking leave to bring an appeal out of time, and other orders (the County Court application). With the consent of the Board, the applicant requested that the County Court application be listed for hearing together with the hearing of the jurisdictional issue.
8 Both applications were listed for hearing before me on 5 August 2020. Submissions were filed on behalf of the applicant and the Board directed to the following questions:
(a) Does VCAT have jurisdiction to determine the appeal and to exercise the discretion under s77 of the VCAT Act? and
(b) If VCAT does not have jurisdiction to determine the appeal and to exercise the discretion under s77 of the VCAT Act, does the County Court of Victoria have power to grant leave to bring the appeal out of time, and if so, should the County Court grant leave?
9 At the hearing on 5 August 2020, Mr Miller appeared on behalf of the applicant and Mr McAloon appeared on behalf of the Board. I heard argument in respect of the first question as a Vice President of VCAT. I heard the County Court application as a Judge of the County Court of Victoria. I have had regard to the submissions, both written and oral.
10 In 23 Market Street Developments Pty Ltd v Victorian Legal Services Board (Legal Practice) [2020] VCAT 898, I found that VCAT is not a ‘designated tribunal’ and has no jurisdiction to hear and determine the appeal.
11 These are my reasons for decision in respect of the County Court application.
‘Designated tribunal’
12 There is no issue between the parties that the County Court is “a court that would have jurisdiction to determine the claim if it were a claim for a debt” and is therefore a ‘designated tribunal’ for the purpose of s247(1) of the Uniform Law.
13 Under s247(2) however, an appeal against a decision must be lodged within 30 days of receiving written notice about the decision. The applicant accepts that the County Court proceeding is brought out of time and that there is no express provision in the Uniform Law that permits an extension of time.
Power to extend time
14 The applicant relied on s247(6) of the Uniform Law; alternatively on rule 58.01(g) of the County Court Civil Procedure Rules 2018 (the Rules) for the Court’s power to extend the time in which to lodge the appeal.
Section 247 of the Uniform Law
15 Section 247 is as follows:
“247 Right of appeal against decision on claim
(1)A claimant against the fidelity fund may appeal to the designated tribunal against a decision of the fidelity authority—
(a)to wholly or partly disallow a claim; or
(b)to reduce the amount allowed in respect of a claim—
but an appeal does not lie against a decision of the fidelity authority to limit the amount payable, or to decline to pay an amount, under section 230 or 231.
(2)An appeal against a decision must be lodged within 30 days of receiving written notice about the decision.
(3)On an appeal under this section—
(a)the appellant must establish that the whole or part of the amount sought to be recovered from the fidelity fund is not reasonably available from other sources, unless the fidelity authority waives that requirement; and
(b)the designated tribunal may, on application by the fidelity authority, stay the appeal pending further action being taken to seek recovery of the whole or part of that amount from other sources.
(4)The designated tribunal may review the merits of the fidelity authority's decision to the extent considered relevant by the tribunal.
(5)The designated tribunal may—
(a)affirm the decision; or
(b)if satisfied that the reasons for varying or setting aside the fidelity authority’s decision are sufficiently cogent to warrant doing so—
(i)vary the decision; or
(ii)set aside the decision and make a decision in substitution for the decision set aside; or
(iii)set aside the decision and remit the matter for reconsideration by the fidelity authority in accordance with any directions or recommendations of the tribunal.
(6)The designated tribunal may make other orders as it thinks fit.
(7)No order for costs is to be made on an appeal under this section unless the designated tribunal is satisfied that an order for costs should be made in the interests of justice.”
16 The applicant submitted that the objectives of the Uniform Law and the broad language of s247(6) indicate that the provision should be interpreted broadly to empower a claimant to bring an appeal under s247(1) despite non-compliance with s247(2). Although the language of s247(2) is mandatory, there is no provision in the Uniform Law that says time cannot be extended. An inability to extend time appears to be an oversight and would lead to a harsh result.
17 Mr McAloon, on behalf of the Board, made the following observations to assist the Court’s consideration of the application, in particular by identifying matters that support the alternative position. In summary:
(a) the absence of any express provision for an extension of time tells against the designated tribunal having the capacity to extend time;[2] and
(b) the reference to the making of ‘other orders’ should be construed as a reference to potential orders that could be made in addition, or as an alternative to, the specific orders provided for in the preceding sub-sections, each of which are made only upon an appeal falling for determination on account of having been lodged in compliance with s247(2).
[2]The Board is not aware of any instance of an extension of time having been granted in respect of an appeal under s247 of the Uniform Law.
18 I do not consider that s247(6) empowers the County Court to extend time in which an appeal under s247(1) must be lodged. I consider that the power in s247(6) is exercisable only in respect of a matter in which the designated tribunal has jurisdiction, including on account of compliance with s247(2). The power to make ‘other orders as it thinks fit’ when considered in the context of s247 as a whole, makes it plain that s247(6) relates to orders that may be made in addition, or as an alternative to, the specific orders provided for in the preceding sub-sections. The introductory words of s247(3), ‘On appeal under this section…’ underscore the focus of ss247(3)-(7) on the hearing and determination of the appeal.
19 The Explanatory Memorandum further supports that construction. It provides:
“Subsections (4), (5), and (6) provide that, on appeal, the designated tribunal may review the merits of the fidelity authority’s decision and may affirm, vary, set aside and make a new decision, set aside and remit the matter for reconsideration by the fidelity authority or make other orders as it thinks fit. Subsection (7) provides that no order for costs is to be made on an appeal unless the designated tribunal considers it should be made in the interests of justice.”
(emphasis added.)
Rule 58.01(g) of the County Court Civil Procedure Rules 2018
20 The applicant also relied on r58.01(g) of the Rules. The Court has power under r58.01(g) to give leave to amend the grounds of appeal or make any other order to ensure the proper determination of the appeal.
21 The respondent contended that it is doubtful that r58.01(g) is a source of power to extend time, as the power to make ‘any other order’ relates to the proper determination of the appeal.
22 Whilst the Court possesses extensive case management powers under the Rules to enable it to act effectively within its jurisdiction, I do not consider that rule 58.01(g) empowers the County Court to extend a time limit in an enabling enactment within which an appeal must be lodged.
23 Rule 58.01(g) is directed to the grant of “leave to amend the grounds of appeal or make any other order to ensure the proper determination of the appeal”. I consider that the power is exercisable only in respect of a matter within the Court’s jurisdiction and not for the purpose of bringing the matter within the Court’s jurisdiction.
24 Further, the opening words of r58.01; “Except where otherwise provided by any Act or by the Rules - …” are problematic for the applicant. Even if r58.01(g) empowered the Court to extend time, the use of the word “must” in s247(2) of the Uniform Law, without any provision in the Uniform Law for an extension of time, is ‘provision otherwise’.
25 The power to extend or abridge time is provided for in r3.02 and is limited to the extension or abridgment of any time fixed by these Rules.
26 I consider that the County Court does not have power to extend the time in which an appeal under s247(1) of the Uniform Law must be lodged and therefore to grant leave to appeal out of time. In the absence of a power to do so, I consider the Court does not have jurisdiction to hear and determine the appeal.
27 Had I determined that the County Court has the power to do so, I would have granted leave to the applicant to appeal out of time having regard to the explanation for the failure to commence the appeal in time. The Board accepted that a reasonable explanation for the non-compliance with the statutory time limit had been provided and the Board would suffer no particular prejudice as a consequence of an extension of time being granted.
28 The originating motion is dismissed.
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