B (A solicitor) v Victorian Lawyers RPA Ltd
[2002] VSCA 204
•13 December 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 8739 of 2001
No. 8736 of 2001
| “B” a SOLICITOR “G” a SOLICITOR | Appellants |
| v. | |
| VICTORIAN LAWYERS RPA LIMITED and LEGAL PROFESSION TRIBUNAL | Respondent |
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JUDGES: | ORMISTON, CHARLES and BATT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 29 and 30 July, 1 August 2002 | |
DATE OF JUDGMENT: | 13 December 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 204 | 2nd Revision - 18 December 2002 |
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LEGAL PRACTITIONERS – Discipline – Disciplinary proceeding – Legal Profession Tribunal – Investigation of complaint – Institution of proceeding – Delegation of RPA’s powers of investigation to individual – Necessity for delegation in writing – Minutes of meeting of RPA signed by chairman – Whether delegation in writing – Legal Practice Act 1996 (Vic.) ss.151, 313.
ADMINISTRATIVE LAW – Procedural fairness – Right to be heard – Disciplinary proceedings – Legal practitioners – Preliminary investigation of complaint – Whether practitioner to be given copy of complaint and chance to respond – Whether question of law - Extent of duty to inform practitioner of facts constituting charge against him – Bias alleged against tribunal - Waiver.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant “B” | Mr R.M. Garratt, Q.C. and | T.D. O’Connor |
| For the Appellant “G” | In person | |
| For the Respondent | Mr A.G. Uren, Q.C. and Mr G.M. Randall | Mr Joseph Barravecchio |
ORMISTON, J.A.:
I have had the benefit of reading the judgment of Charles and Batt, JJ.A. in draft form and for the reasons they have given I consider that each appeal should be allowed. There has only been one matter of general consequence about which I have been concerned, not because I consider the conclusions reached in the joint judgment to be incorrect, but because it has more general application than the facts of this case or the body to which it is applied. For example, a power of delegation is expressed in similar terms in dozens of Commonwealth statutes and in well over forty other Victorian statutes including not only Acts relating to the professional discipline of persons such as doctors, nurses, dentists and the like, but also in such varied Acts as the Dangerous Goods Act 1985, the Ombudsman Act 1973, the Transport Act 1993 and the Treasury Corporation of Victoria Act 1992. Despite the fact that such provisions so commonly appear in legislation, we were taken to no direct authority which supported the course taken by the respondent RPA in this case, nor have we been able to find any such authority for ourselves, assisted as we have been by the able research of the Court of Appeal’s researchers.
The word “delegate”, as with the similar terms “authorise” and “appoint”, must take on its meaning from the context in which it appears but, when found in a statute, it ordinarily connotes a degree of formality especially when the provision requires that the delegation shall be “in writing”. More often than not this will flow from the need to communicate to the person to whom the delegation is made the period and terms of the delegation, such as was held by the High Court to be essential in the case of an appointment, though found only in a lease: see Gollin & Co. Ltd. v. Karenlee Nominees Pty. Ltd.[1]. It may be thought that on this occasion the particular delegate would have been familiar with or had access to the terms of the RPA’s minutes, which are conceded to be the sole repository of the delegation in these cases, but the procedure for delegation must be equally apt for any delegation under the Legal Practice Act 1996 or for that matter any other delegation of a similar kind under similar statutes. For the reasons stated in the judgment of Charles and Batt, JJ.A. I find it difficult to accept that the mere confirmation of the minutes, though the minutes were obviously enough in writing, was sufficient to satisfy the statutory requirements.
[1](1983) 153 C.L.R. 455.
I am conscious of the possible inconvenience to some who may be acting upon the assumption that the procedure adopted by the RPA in this case is sufficient, for one would not wish to impose undue and technical restrictions upon the day to day activities of bodies such as the RPA. Nevertheless I find it surprising that a body made up of qualified and experienced lawyers should take a course as was here adopted without there having been some explicit authority which would justify their actions, but, as I have said, none has been cited to this Court on its behalf. Lawyers should be well aware that cases on what constitutes a memorandum in writing for the purpose of the Statute of Frauds and similar statutes[2] are directed towards a quite different purpose and that such provisions have historically been interpreted in a very generous way for reasons which need not be examined here.
[2]Cf. the section considered recently by the High Court in Moneywood v. Salamon Nominees Pty. Ltd. (2001) 202 C.L.R. 351.
What the Court is here concerned with, however, is a formal step taken by a body given certain statutory powers of considerable significance, in the present case, a power which permits the commencement of disciplinary proceedings before the Legal Profession Tribunal, potentially leading to loss of the right to practise. The corporation’s minutes are not a means of delegating in writing a power of such an important kind.[3] They are intended to record the proceedings and decisions of the Council as a board of directors, but even the language here adopted, that of “approving” a “recommendation” does not connote an immediate delegation. Of course, when first prepared the minutes are but a draft of what ultimately has to be approved and as such they are not an authorised act of the RPA. When confirmed, a month and a day later, they were merely the record of what occurred at the previous meeting and the decisions recorded could not have taken on any new legal significance.[4] The signature of confirmation was that of the “chairman”[5], but that for the purpose of minutes means only the chairman of the meeting, although in the case of the RPA that customarily is the chairman of the Council and thereby of the Board of Directors. The authority given by the Council (as the Board) to the chairman on each such occasion of confirmation is merely to record that confirmation as verifying the minutes as a true record. There was no intended power here given to the chairman otherwise to effectuate a delegation in terms of the section. It is well accepted[6] that a chairman has limited powers in acting on behalf of the board of a corporation, so that to act on its behalf for the purpose of effectuating a delegation would require specific authority so to act.
[3]Cf. Equity Nominees Ltd. v. Tucker (1967) 116 C.L.R. 518 at 525 per Windeyer, J., where the minutes went so far as purporting to execute a document under seal.
[4]For this reason there was a good deal of uncertainty in the respondent’s submissions as to the date from which the delegation operated.
[5]So described in the minutes.
[6]See e.g. Hughes v. N.M. Superannuation Pty. Ltd. (1993) 29 N.S.W.L.R. 653 at 663 per Sheller, J.A.
In conclusion, it would seem remarkable that a delegate seeking to ascertain or confirm his or her authority pursuant to a delegation would have to sift through several pages of unrelated and often confidential minutes in order to find the terms of the delegation “in writing” and the confirmation of those minutes. In the present case it would have been necessary to look at pages 111 and 112 of the minutes of the RPA for 18 May 2000 for the delegation and then to page 123 for the later confirmation.
It is thus clear, to my mind at least, that there was no lawful delegation of the relevant powers under s.151 of the Act in relation to each of the appellants.
CHARLES and BATT, JJ.A.:
These are separate appeals by two legal practitioners, referred to as B and G[7], against a decision of the Legal Profession Tribunal (“the Tribunal”) dated 26 November 2001, whereby the Tribunal found or held that it had jurisdiction to hear and determine the charges which had been laid against the respective appellants by the first respondent (“the RPA”), a recognised professional association, purportedly pursuant to s.151 of the Legal Practice Act 1996 (“the new Act”). The history of the matters reveals a scandalous position, for, although with one exception all the transactions the subject of the charges appear to have been completed before 1 January 1997 (when the majority of the provisions of the new Act came into force), and many of the events occurred in 1993 and even earlier, the abovementioned charges were not laid until 30 October 2000 and, as already indicated, proceedings in the Tribunal have reached the stage only of a determination of a challenge to the jurisdiction of the Tribunal to hear and determine those charges. Whether this position is the result of dilatoriness on the part of the RPA, or a lack of effort by it in prosecuting the charges before the Tribunal, or the adoption of dilatory tactics by the appellants does not directly arise for investigation, but it should not occur again. We now turn to summarising the history, though we shall leave certain facts for mention when the grounds to which they particularly relate are considered.
[7]By leave granted by the Court of Appeal on 3 May 2002.
In February 1997 the RPA commenced an investigation into the trust accounts of a firm of solicitors the then partners of which were B and G. Following that investigation, on application made to it, the Supreme Court on 27 May 1997 appointed a receiver to the firm’s contributory mortgage practice. Thereafter, the Trust Moneys Committee of the RPA referred the matters disclosed in the investigation for consideration under s.146(2) of the new Act. Following that further investigation, the RPA brought charges against B and G pursuant to s.151 of the new Act. By notice dated 20 October 1999, which was given by the Tribunal the reference No.T0301 of 1999, charges of misconduct were made against B and G in respect of transactions involving their contributory mortgage practice, and by notice dated 24 December 1999, which was ultimately given the reference No.T0045 of 2000, the RPA brought further charges against G alleging misconduct by him in the course of engaging in legal practice.
On 12 April 2000 at a hearing before the Full Tribunal senior counsel for the RPA informed the Tribunal that the RPA did not propose to proceed with the charges and applied to withdraw the notices of charge on the basis that by reason of failure to follow strict process there were no valid charges against B and G before the Tribunal. Submissions were made on behalf of B and by G personally that the charges should be dismissed with costs against the RPA. After hearing argument the Tribunal on the same day ordered that the RPA might withdraw the two notices of charge containing “purported” charges against B and G and against G respectively on the ground that the Tribunal did not have jurisdiction to hear the purported charges. In its reasons it said:
“The Tribunal considers that it ought not to dismiss the purported charges in the absence of a hearing on the merits of the purported charges. We consider that it would be inappropriate to make an order which would preclude or may preclude Victorian Lawyers RPA Limited from proceeding further if it is so minded in due course.”
The Tribunal also held that the question of costs could be dealt with finally on the outcome of any fresh proceedings that the RPA might bring against one or other of B and G. In the event that the RPA elected not to proceed any further then the appellants were at liberty to apply for costs incurred up to that stage.
In May 2000 the RPA purportedly commenced a further investigation concerning the mortgage practice of B and G. The minutes for the meeting of 18 May 2000 (which we shall set out in more detail later) record the approval of recommendations as to the delegation of various powers, including in particular a recommendation that in relation to G and B only, the Council delegate to Ian Maxwell Dunn alone its powers pursuant to s.151 of the new Act. The last page of the minutes for 18 May 2000 contains a confirmation of them taking the form of the typed word “CONFIRMED” followed by the signature “Tina Millar” of the then Chairman and the handwritten date “19.6.2000”. Mr. Dunn was at the time the chief executive officer of the RPA.
On 21 July 2000 the Tribunal ordered that the RPA lay any fresh charges it might determine to bring against one or both of B and G on or before 29 September 2000. On 28 September 2000, upon the application of the RPA, the Tribunal, by order, extended that time to 30 October 2000. In the course of its reasons for the extension of time the Tribunal stated that it was apparent that there had been a body of correspondence between the RPA and the practitioners since the Tribunal made its order on 21 July 2000 and that delays had occurred as a result of the parties seeking additional information. The Tribunal was satisfied that it was in the interests of justice, including therein the interests and protection of the public, that it should grant the extension of time.
By notices dated 30 October 2000 and given the reference Nos.T0333 of 2000 and T0334 of 2000 respectively, the RPA filed in the Tribunal fresh charges of misconduct against B and G. Annexed to the notices were documents headed “Particulars”, which alleged six charges in the case of B and sixteen in the case of G. Annexed to the particulars are approximately 30 documents. All told there are some 215 pages in the case of B, with a further 100 or so pages in the case of G. The covering document, being the Charge and Referral of charge to the Tribunal, and the notice pursuant to s.151 are signed by Mr. Dunn “For and on behalf of VICTORIAN LAWYERS RPA LTD.”, while the particulars are signed by him “for Victorian Lawyers RPA”. To a large extent - the appellants contend without exception - the new charges arise from and concern the same transactions as were the subject of the respective notices of charge withdrawn by leave of the Tribunal on 12 April 2000. The Tribunal determined that the new proceedings be heard together.
On 14 December 2000 submissions were made to the Tribunal by counsel for B, and by G personally, that the charges against them were not valid, that they had not been brought in accordance with the new Act, that the RPA had not provided a proper opportunity to either B or G to respond to the charges and that generally the jurisdiction of the Tribunal had not been properly invoked by the RPA. Written outlines of submissions in support were filed and served. The Tribunal directed that written submissions in response on behalf of the RPA as to the question of jurisdiction be filed and served by 19 February 2001. That was done and submissions in reply were also filed and served. The further hearing of the proceedings was adjourned to 5 March and ultimately to 19 April.
On that day counsel for B raised the question whether Mr. Dunn had been properly appointed pursuant to s.313(1) of the new Act as the delegate of the RPA for the purposes of s.151(2), Mr. Dunn having represented, it was said, that he was the delegate at the RPA for various purposes. Counsel for B, and G personally, submitted that if Mr. Dunn had not been properly so appointed by the RPA as its delegate then the new charges were not valid and the Tribunal could not proceed with the hearing of them. Further submissions on behalf of the parties were filed and exchanged. On 9 July G made application to examine witnesses and produce documents on the issue of jurisdiction by means of subpoenas. The Tribunal ruled that the documents sought were not relevant to the issue of jurisdiction. The hearing resumed on 18 July, when the Tribunal upheld the RPA’s claim of legal professional privilege in memoranda of advice from counsel, a matter which had been argued on 9 July. Further submissions concerning jurisdiction and the validity of the charges were also made on 18 July by or on behalf of the parties. Senior counsel for the RPA contended that the resolution said to be contained in the minutes referred to earlier met the requirement of s.313(1).
On 26 November 2001 the Tribunal made the decision from which the appeals to this Court are brought and delivered reasons for the decision. In its reasons the Tribunal reviewed the history of the proceedings, stated the four principal submissions made for B, and adopted by G, and listed the various sets of written submissions made to it (numbering, one is amazed to find, fourteen), the affidavits filed for the appellants and the exhibits tendered on behalf of the RPA.
The Tribunal then considered the first principal submission put to it, namely, that the RPA did not have authority to investigate the conduct of B and G in that the alleged misconduct referred to in all of the charges, with one exception, occurred before the new Act relevantly came into force on 1 January 1997. All six charges against B arose from matters which occurred between December 1992 and December 1996 and the charges were based on allegations of misconduct within paragraph (a) of the meaning of that expression in s.2A of the Legal Profession Practice Act 1958 (“the old Act”) in that he wilfully or recklessly breached various of the Solicitors (Professional Conduct and Practice) Rules 1984. Fifteen of the sixteen charges brought against G arose from matters which occurred between the same dates and were based on allegations of misconduct within the meaning of s.2A of the old Act in that he wilfully or recklessly breached various of the above-mentioned rules, some sections of the old Act and one of the Solicitors (Audit and Practising Certificates) Rule 1990. (Charge 10 related to alleged misconduct after 1 January 1997 and was based on an allegation that G was guilty of misconduct as defined in s.137 of the new Act in that he wilfully or recklessly contravened s.174(3) of that Act.) It is sufficient to say that in careful reasons the Tribunal held that the transitional provisions contained in clause 22(1) and (3) in Schedule 2 to the new Act empowered the RPA to investigate the conduct of the appellants occurring before the commencement of the new Act on 1 January 1997 and to bring charges arising from the investigation before the Tribunal pursuant to s.151(2) of the new Act.
The second submission for the appellants was that the RPA was not authorised to conduct the second investigation into their conduct after it had concluded an earlier investigation into their conduct. That earlier investigation led to the charges which were withdrawn by the RPA on 12 April 2000. It was submitted for B (and the argument was adopted by G) that there was no statutory authority in the new Act for a second investigation as there was a legislative scheme in it that prescribed that all investigations should follow a defined procedure which must result in one of the various “outcomes” set out in s.151. The Tribunal rejected this argument, holding that the provisions of the new Act did not have the effect contended for and also that there was nothing in the new Act which prevented the RPA from relying in the later investigation upon material obtained by it in the earlier investigation.
The third submission considered by the Tribunal was that the delegate of the RPA, for the purpose of exercising its powers conferred by s.151 of the new Act, Mr. Ian Dunn, was appointed in breach of the provisions of s.313 of the new Act in that he was not appointed in writing and accordingly the referral by him to the Tribunal of charges against the appellants pursuant to s.151(2) was invalid. The Tribunal pointed out that s.151, which deals with what happens after an investigation is completed, is in Part 5 of the new Act. It stated the terms of the minute summarised above and set out below and how and when it was confirmed. It noted the argument for B (which was adopted by G) that the minutes of 18 May 2000 showed the RPA’s intention to delegate certain powers to Mr. Dunn but they did not meet the requirement that the delegation be in writing, were not evidence of a delegation of powers to Mr. Dunn or an instrument of delegation, but were merely a record of the meeting. The Tribunal, however, in a passage set out later expressed itself as satisfied that the resolutions approved at the meeting of the RPA council on 18 May 2000 contained in the minutes signed by Mrs. Millar as chairman of the meeting constituted a delegation in writing to Mr. Dunn of the RPA’s powers and functions under s.151 and met the requirement of s.313 that a delegation be in writing. The Tribunal did not consider that a formal instrument of delegation was necessary to satisfy s.313.
The last of the four principal submissions considered was that the RPA failed to comply with jurisdictional requirements laid down by the High Court in Barwick v. Law Society of New South Wales[8] in that the procedures established by Div.3 of Part 5 of the new Act, relating to investigation of practitioners’ and firms’ conduct, were “substantially by-passed”. The appellants particularly alleged failure to establish that there had been “an investigation monitoring” and compliance by the RPA with the procedures set out in Div.3 of Part 5. Reliance was placed on s.147, whereby, so far as material, the Legal Ombudsman must monitor investigations by RPA’s under s.146 and an RPA must report to the Legal Ombudsman on request on the progress of an investigation it is conducting. It is sufficient to state that, having reviewed the evidence before it, the Tribunal was satisfied that the Legal Ombudsman was given an opportunity while the investigation into the contributory mortgage practice was proceeding to monitor the investigation and that there was no evidence that the RPA telescoped the investigation or by-passed or failed to comply with s.147.
[8](2000) 74 A.L.J.R. 419.
The Tribunal then dealt with a number of additional arguments which had been advanced in writing on behalf of B. It is necessary to mention some only of these arguments. One argument was that the RPA was in breach of s.151(5) of the new Act in that, when it withdrew the earlier charges on 12 April 2000, it had formed the view that those charges could not succeed and accordingly by reason of s.151(5) it could take no further action. That sub-section provides, so far as material, that if an RPA is satisfied that there is no reasonable likelihood that the Tribunal would find the legal practitioner guilty of misconduct or unsatisfactory conduct it must take no further action against the practitioner. It was also argued that by bringing the charges in the notice dated 30 October 2000, which were in substantially the same form as the earlier withdrawn charges, the RPA had put B in jeopardy twice for the same matters. The Tribunal rejected both submissions. It held that when the charges were withdrawn on 12 April no view was formed by the RPA to which s.151(5) applied. Rather, the RPA’s view was that the charges could not proceed because they had not been validly laid through procedural defect. The Tribunal also held that the double jeopardy principle had no application since the appellants were not in jeopardy of conviction on the merits under the original charges.
It was argued that the charges were void as they lacked precision and the allegations were not specifically identified. The Tribunal did not accept those allegations and held that, in any event, the alleged defects would not make the charges void. Further particulars could be sought if required.
Another argument considered was that Mr. Dunn had not made a valid decision pursuant to s.151(2) as not sufficient time, only seven days, had been given to B to be to put in writing any further material he wished to place before Mr. Dunn before the latter made his decision under s.151. The Tribunal noted that no application for an extension of time was made by or on behalf of B and that G had replied at length to a similar letter from Mr. Dunn, stating that he would not be requiring an extension of time. The Tribunal was of the view that, having regard to the history of B’s matter as shown by the affidavits to which it referred, the limit of seven days was not unreasonable, particularly bearing in mind that B had not sought an extension of time. Accordingly, Mr. Dunn’s decision was not invalid on that ground.
Yet another argument considered was that Mr. Dunn, as delegate of the RPA, had not exercised the powers under s.151(2) delegated to him in accordance with procedures fixed by the RPA. It was contended for B that as a result of the failure by the delegate to comply with those procedures Mr. Dunn could not properly have been satisfied that there was a reasonable likelihood that the Tribunal would find the practitioner, B, guilty of misconduct and so could not properly bring the charge against B in the Tribunal. The Tribunal in substance held that the specific delegation to Mr. Dunn in relation to B and G meant that he was not subject to other procedures laid down or arguably laid down by the Council of the RPA for investigations generally under s.151, so that, for instance, the requirement of the approval of three members of the Council to bring a charge which was likely to be heard by the Full Tribunal did not apply to the exercise by Mr. Dunn of the powers conferred by s.151 delegated to him in respect of B and G. In any event, in the Tribunal’s view, any failure to follow the procedures laid down by earlier resolutions, even if applying to Mr. Dunn, would not invalidate his acts as delegate as the procedure was not a statutory one. The Tribunal was of the view that the charges against B and G had been brought in the Tribunal by the RPA acting through its duly appointed delegate, Mr. Dunn, in accordance with the new Act. The Tribunal also rejected a submission that at the time of the alleged delegation to Mr. Dunn the RPA did not have any power to act under s.151(2) because an investigation by Mr. Coleman as delegate of the RPA in relation to s.146(2) was continuing in August and September 2000. The power delegated was, the Tribunal held, simply one which could not be exercised until the investigation was completed. The Tribunal also rejected a submission that the delegation to Mr. Coleman of its general power under s.146 made by the RPA on 18 May 2000 was invalid in that it lacked statutory authority. The submission had been that s.146(2) related to a discrete and specific function of the RPA and did not come within the rubric of a general power.
The Tribunal then stated that G had adopted and relied upon all the submissions made for B and in addition had relied upon written submissions made by him and affidavits sworn by him as listed earlier in its reasons as well as on oral submissions made by him. The Tribunal continued:
“We have considered all that material. Some of the matters relied upon by [G] related to a permanent stay of proceedings arising from allegations by him of delay, prejudice suffered by him and abuse of process. The matters have proceeded before the Tribunal on what may be described as the primary question, namely whether the Tribunal has jurisdiction to hear the charges, it being contended by [B] and [G] that the charges are invalid.
We believe that in these reasons we have dealt sufficiently with the matters raised by [G] in his separate submissions in so far as they relate to the validity of the charges against him and the jurisdiction of the Tribunal to hear the charges.”
The Tribunal concluded that the RPA had followed the procedures laid down in the new Act in bringing the charges dated 30 October 2000 and that those charges were valid. Accordingly it was satisfied that it had jurisdiction to hear and determine them as required by s.157(1) of the new Act. The application was dismissed.
By s.170(1) of the new Act a party may appeal to the Court of Appeal, on a question of law, from an order[9] of the Full Tribunal under Div.5 of Part 5 of the Act. Notice of appeal against the decision of the Tribunal that it had jurisdiction was filed on behalf of B on 14 December 2001. A corresponding notice of appeal was filed by G on 17 December 2001, but G also alleged that the Tribunal had shown ostensible bias in favour of the RPA.
[9]Interim orders are authorised by s.413A.
Ground 1
The first of the two principal grounds argued on behalf of both appellants was in the following form –
“Ground 1: The Tribunal erred in law in holding that the provision in s.313(1) of the Act that ‘an RPA may delegate in writing to … any of its powers or functions under … ‘.
(a) did not require an instrument of delegation in writing;
(b) did not require an instrument executed by the particular RPA;
(c)was satisfied by an oral resolution of the council of the RPA made on 18 May 2000 later minuted by its chairman on 19 June 2000.”
Section 313 of the new Act provides as follows –
“(1)An RPA may delegate in writing to an officer, an employee or the members of a committee of the RPA any of its powers or functions under –
(a)Division 4 of Part 2 (practising certificates);
(b)Part 2A (interstate practice);
(c)Part 2B (practice of foreign law);
(d)Part 5 (disputes and discipline);
(e)Part 6 (client’s money and trust accounts);
(f)Part 9 (receivers and managers).
(2)An RPA must give written notice to the Board of any delegation under sub-section (1) and of any revocation or variation of any delegation, as soon as practicable after making it.”
The delegation relied on by the respondent took the form of a resolution, the relevant part of which was as follows –
“4.2.2 PROFESSIONAL STANDARDS
1. Topic
Delegations
2. Summary of the proposal/relevant issues
At the first Council meeting following the election of new Council members, Council approve delegations for the next Council year.
Over various meetings during the course of 1998 and 1999 Council approved certain delegations to members of staff of Victorian Lawyers RPA Ltd and to the RPA Trust Moneys Committee.
The RPA has the power to delegate pursuant to Section 313 of the Legal Practice Act 1996 (as amended on 15 December 1998 to include Parts 2A, 2B and 6) and clause 86 of the Articles of Association of Victorian Lawyers RPA Ltd.
Section 313 of the Act permits the RPA to delegate to an officer, an employee or the members of a committee of the RPA any of its powers or functions under –
a)Division 4 of Part 2 (practising certificates);
b)Part 2A (interstate practice);
c)Part 2B (practice of foreign law);
d)Part 5 (disputes and discipline);
e)Part 6 (client’s money and trust accounts);
f)Part 9 (receivers and managers)
Clause 86 of the Articles of Association of Victorian Lawyers RPA Ltd permits the Council to delegate any of its powers to –
a)Standing committees
b)Other ad hoc committees.
3.Existing/previous legislation and existing Institute and/or government policy
These delegations be made upon the election of new Council members and the installation of a new president.
4.Short statement of policy issues for entry in the LIV policy register
Delegation of powers under the Legal Practice Act 1996 and the Articles of Association of Victorian Lawyers RPA Ltd.
5.Recommendation/s
1.That all previous delegations made pursuant to the Legal Practice Act 1996 and the Articles of Association of Victorian Lawyers RPA Ltd be revoked.
2.(a) Pursuant to Section 313 of the Legal Practice Act 1996 and clause 86 of the Articles of Association of Victorian Lawyers RPA Ltd the powers set out in Attachment A hereto are delegated to the persons or committees listed therein.
(b)Where Laurence William Neville is delegated together with Kevin Joseph Power alone, each can exercise those delegated powers jointly or individually, provided that Laurence William Neville may only exercise those powers individually if Kevin Joseph Power is unable to do so.
(c)In relation to [G] and [B] only the Council delegate to Ian Maxwell Dunn alone its powers pursuant to section 151 of the Legal Practice Act 1996.
APPROVED”
Section 151 of the new Act is contained with Part 5. That part is headed “Disputes with Clients and Discipline”, and s.151 itself is headed “What Happens After Investigation is Completed?”. By sub-s.(1) of s.151 the RPA is one of three bodies, one of which must deal with a matter after an investigation is completed. If satisfied that there is a reasonable likelihood that the Tribunal would find the firm or practitioner guilty of misconduct, the RPA, if it is dealing with the matter, must bring a charge. By sub-s.(3), if satisfied that there is a reasonable likelihood of a finding of guilt of the lesser charge of unsatisfactory conduct, the RPA may bring a charge, or reprimand or caution the offender, or take no further action. Sub-section (4) entitles the RPA, in a case where the complainant has sought compensation, to require the practitioner to pay compensation as a condition of not bringing a charge.
On 26 November 2001, the Tribunal considered the issue now raised on behalf of both B and G, namely whether the RPA’s delegate, Mr Dunn, had been appointed in breach of s.313 in that he was not appointed in writing and concluded –
“We are satisfied that the resolutions approved at the meeting of the RPA Council Meeting on 18 May 2000 contained in the minutes signed by Mrs Millar as Chairman of the meeting constitute a delegation in writing to Mr Dunn of the RPA’s powers and functions under s.151 and that they meet the requirement of s.313 that a delegation by an RPA be in writing. We do not consider that a formal instrument of delegation is necessary to meet the requirement of s.313 that the delegation be in writing.”
The meeting of the RPA which approved this resolution took place on 18 May 2000. It was an agreed fact that the Chairman, Mrs Tina Millar, signed the set of minutes as correct one month later on 19 June 2000. There was, however, nothing in the minutes of 19 June which otherwise confirmed that the previous minutes were correct. The rules of the RPA were not put in evidence before the Tribunal or before this Court. No further step was taken by the RPA or its officers (the RPA is a body corporate) to make a delegation in writing to Mr Dunn.
In this Court Mr Garratt, who appeared for B, argued (and this submission was adopted by G, who appeared in person) that there had been no written delegation in the circumstances, only an oral resolution relating to the delegation to Mr Dunn of the RPA’s powers. It was also argued that the resolution was itself defective in that it permitted a delegation to Mr Dunn only of the RPA’s “powers” (not the RPA’s “powers and functions”) under s.151, but we mention the submission only to say that in our view it has no substance.
The submission continued that the minutes are no more than evidence of what has transpired at the meeting, made afterwards, and do not become the events they record merely because some person later prepares minutes of the resolution. Mr Garratt submitted that a writing was required by s.313 in order to permit the ready identification of the delegate, and the precise powers and functions devolved, the period of their devolution and any conditions of their exercise, thus protecting the interests of the RPA, the delegate, any persons affected by the exercise of powers so delegated, and the public. Noting that practical convenience may warrant delegation in large organisations to officers of such powers or functions, it was submitted that the wording of s.313 is plain and unambiguous and prescribes the manner of delegation, the only form permitted being a delegation in writing. The new Act elsewhere distinguished between acts done in writing and acts evidenced in writing and between the written and the oral, reference being made to ss.96(2) and 409(2). Accordingly, so the argument ran, the section has a constitutional character since it regulates who may exercise powers or functions conferred by the new Act on an RPA. It was noted that a delegate acting is not an agent who exercises the RPA’s powers but rather, as the new repository of the powers, exercises his own powers as a delegate.[10] The submission continued that the resolution was nothing more than an indication of intention, or authorisation, and needed an implementation or outward communication to be effective. In the case of a body corporate, it was said, one would expect to find an instrument of delegation with the seal of the RPA. Only when a formal delegation, an actual exercise of the power, had occurred, delivered into the hands of the delegate, could that person then satisfy anyone of the fact and means of his appointment.
[10]Re Reference under s.11 of Ombudsman Act 1976 for an Advisory Opinion, ex parte Director-General of Social Services (1979) 2 A.L.D. 86 at 94 per Brennan, J. As will appear, we do not find it necessary to consider the sufficiency of the terms in which Mr. Dunn as putative delegate signed the Charge and Referral, the s.151 notice and the particulars relating to each appellant.
For the RPA Mr Uren submitted that the Tribunal had correctly decided that the resolutions approved in the minutes constituted the delegation in writing, made by the appropriate body to do so. He submitted that the new Act required no particular form nor was it necessary that there be an instrument of delegation, and for this purpose he relied on Jones v. Victoria Graving Dock Co.[11] The submission continued that the minutes amounted to a formal record of what had been decided, and, once the decision had been made and recorded in writing then the decision (and thus the delegation) was in writing. Reliance was placed on s.251A of the Corporations Law 2001 which required a company to keep minute books (sub-s.(1)(a)), and to ensure that the minutes were signed within a reasonable time (sub-s.(2)) and provided that a minute that was recorded and signed was evidence of the resolution to which it related unless the contrary was proved (sub-s.(6)). Mr Uren relied on Berard v. Jonshel (No. 15) Pty. Ltd.[12].
[11](1877) 2 Q.B.D. 314.
[12][1992] N.S.W.L.E.C. 80, a decision of the Land and Environment Court of New South Wales, 18 September 1992.
Mr Uren submitted that, by the minutes, the RPA said in writing what its directors had previously resolved orally. But, since the oral resolution was inadequate, until the minutes were made there was no act to which s.313 could apply. When the minutes were constructed, by whichever servant or officer of the RPA prepared them, then the relevant delegation in writing was made. Mr Uren could point to no other case in which the minutes had been treated as the act of the company, but submitted that this argument was consistent with authority and principle.
It is convenient to commence a discussion of these submissions with a consideration of Jones v. Victoria Graving Dock Co., where the issue before the Court of Appeal was whether an agreement satisfied s.4 of the Statute of Frauds. The plaintiffs had agreed to a draft of the agreement, and the secretary of the defendant company entered in the minute book of the company a resolution that “the said agreement be engrossed in duplicate, signed, sealed and executed”. At the next meeting the chairman signed the above resolution for the purpose of verifying its accuracy. It was held that the entry of the resolution in the minute book, together with the chairman’s signature, amounted to an admission in writing that the company had entered into the agreement. Lush, J. in delivering the judgment of Mellor, J. and himself in the Divisional Court said[13] that –
“It was contended that the signature of the chairman to the minutes was put in order to verify the proceedings of the Board in obedience to the Companies Act 1862 ..., and not in order to attest or verify the contract, and that as the signature was put alio intuitu, it cannot be available for the purpose of satisfying the Statute of Frauds. We think there is more ingenuity than force in this argument. The signature required by the fourth section is not of the substance of the contract; it is a matter of procedure only, …, and is required as evidence of the contract. To prevent frauds and perjuries, the Act will not allow any other kind of proof than the writing itself (if it be in writing) or a written admission that the contract was made, and that it was signed in either case by the party to be charged. … The chairman attests by his signature the accuracy of the minute, and that it had been at that second meeting read and confirmed. What is this but an assertion, under the hand of the company’s agent, that the company had entered into the agreement which was contained in the draft referred to. It is not the less efficient as a signed admission of the contract, because it was made as a record of the proceedings of the company …”.
Jones is treated by text writers[14] as establishing that where the chairman of a company signed minutes containing, or referring to, the contract there was a sufficient memorandum to satisfy the statute. In our view Jones is authority for the view merely that a signed minute of a resolution by the board of a company constitutes an admission available in evidence against the company conformably with the view consistently taken by the courts that the Statute of Frauds should not be used as an instrument of fraud. Jones demonstrates that such a resolution, once signed, will become appropriate evidence in writing of the contract. But what is required by s.313 of the new Act is the making of a delegation in writing, namely, the doing of an act.
[13]At 323 (footnotes omitted). The Court of Appeal held an appeal from the Divisional Court was incompetent.
[14]E.g. Chitty on Contracts, 28th ed., General Principles, 269, para.54-022 and 274,para.4-031;Greig and Davis, The Law of Contract, 1987, 697. Mere chairmanship of directors does not impliedly confer authority to act as the company: Hughes v. NM Superannuation Pty. Ltd. (1993) 29 N.S.W.L.R. 653 at 663.
The decision of Berard v. Jonshel is very much to the same effect. In that case s.77 of the Environment Protection Act (N.S.W.) required a consent in writing by the owner of a building for which a development application was made. An extraordinary general meeting of the body corporate which was the owner of that building had taken place and a copy of the minutes of this meeting had been attached to the application. Talbot, J. said[15] -
“The minute of the meeting on 4 August 1988 is obviously in writing. The minutes of decisions of a body corporate in general meeting are a record of the expression of the will or intention of that body. In this way the body in general meeting can manifest its consent in writing. That is not to say that the corporation cannot give a consent in writing by some other means. A formal document of consent executed under the seal would be a consent in writing. So also would be a document signed by a duly authorised officer or agent of the company. The examples are not meant to be exhaustive. In the present case the body corporate is the owner of the common property and, by the resolution passed on 4 August 1988, it decided that there was no objection to the whole building being used for the purposes, inter alia, of service departments.”
Jonshel, which of course is not binding on this Court, is, we consider, distinguishable. First, the statutory provision there in question (“with the consent in writing”) was concerned with a circumstance or attitude accompanying the critical act of another, as opposed to the doing of an act in law. The giving of consent is essentially passive, an act of acquiescence. Secondly, and associated with the first point, it is clear that Talbot, J., rightly or wrongly, treated it as sufficient that the body corporate had “manifest[ed]” in writing its consent. In other words, the provision was held to be evidentiary or at any rate to be satisfied by written evidence of consent. If that understanding of the brief reasons on the point is incorrect, we would respectfully differ from his Honour.
[15][1992] N.S.W.L.E.C. 80 at p.6.
The new Act introduced (largely in 1997) a new regulatory scheme and a new procedure governing the disciplinary process for members of the Victorian legal profession. A comparable regime was introduced in New South Wales by the Legal Profession Act 1987. The New South Wales scheme has been considered in Barwick v. Law Society of New South Wales[16]; The Law Society of New South Wales v. Boland[17]; Walsh v. Law Society of New South Wales[18]; and Murray v. Legal Services Commissioner[19]. In Barwick, Kirby, J. said[20] of the New South Wales scheme –
[16](2000) 74 A.L.J.R. 419;169 A.L.R. 236.
[17][2001] N.S.W. A.D.T. 35.
[18](1999) 198 C.L.R. 73.
[19](1999) 46 N.S.W.L.R. 224.
[20]At [90] (footnotes omitted).
“It was part of a general reform of procedures for the handling of complaints against legal practitioners outside the inherent jurisdiction of the Supreme Court. The object of that reform was to secure greater transparency in the determination of complaints and to establish new institutions for the process but with balancing provisions designed to afford procedural and other safeguards for the practitioner involved. These safeguards should not be narrowly construed. In its comment on the approach to a new system for handling complaints against legal practitioners, the New South Wales Law Reform Commission remarked that:
Lawyers should never be subjected to procedures which arbitrarily or unfairly do harm to their reputations or qualify or remove their practising rights. The Commission makes a number of recommendations … aimed at improving the level of procedural fairness for a lawyer who is the subject of a complaint. For example, the Commission proposes that there be a limitation period on complaints … “.
Similarly in Walsh, McHugh, Kirby and Callinan, JJ. observed[21] -
“Given the scheme of the legislation, and the introduction of new statutory bodies for the task of discipline of members of the legal profession formerly conducted by professional bodies and by the Supreme Court, the requirements of particularity contained in the Act (and the safeguards thereby introduced for the practitioner concerned) would not be narrowly construed. … The provisions of the Act must be complied with.”
[21]198 C.L.R. at 95 and 96 at [62] and [66].
In the circumstances the legislative purpose of permitting a delegation of the functions and powers to be exercised after completion of an investigation, but requiring such a delegation to be in writing, seems to us to be reasonably apparent. We would accept the appellants’ submissions in this regard, that the requirement of a writing protects the interests of all parties concerned. Furthermore, it seems to us that the wording of s.313 is plain and unambiguous. The question remains then, did the passage of the resolution and the minuting of it, or the signature of the chairman at the next meeting, amount to such a delegation in writing? We think not. The resolution appears under the heading “Recommendation/s”. The relevant recommendation, approved by the resolution, was that the council delegate to Mr Dunn its powers under s.151. In terms, the resolution appears to us to be one which states an intention and an authorisation, rather than one which effects an immediate delegation, and not of itself to constitute the delegation in writing required by s.313. A further step, the implementation of the resolution, remained to be put into effect.[22]
[22]Compare Equity Nominees Ltd. v. Tucker (1967) 116 C.L.R. 518 at 525.
If this be correct, the fact that the resolution signed by the chairman might be used in evidence as an admission (though not of a delegation in writing) against the RPA is of no assistance to the respondent, nor would s.251A(6) of the Corporations Law take the matter further.
None of the parties was able to direct the Court’s attention to any other authority bearing directly on the issue of what would be a sufficient delegation under s.313. Our own research has thrown up a number of cases arguably relevant to the issue, but upon close examination of them we gained little assistance, each case depending very much upon its own particular circumstances. For example, in Morton v. French[23] a provision of the Friendly Societies Act 1896 permitted a member of a registered society “by writing under his hand” to nominate a person to whom any sum of money payable by the society on the death of that member should be paid at his death. It was held that a nomination authenticated by the member’s mark only, she being unable to write, and by the signatures of two witnesses was not a writing under her hand within the meaning of this enactment. The Lord Justice-Clerk said that the document was not legally signed and that “Our law has always been very strict in that matter, and it does not depend on custom, but on distinct statutory enactment.”[24] In Wouters v. Deputy Commissioner of Taxation[25], the three appellants objected to the validity of notices to attend for examination issued pursuant to s.264 of the Income Tax Assessment Act, by one Osborne as acting Deputy Commissioner of Taxation, Sydney. At the relevant time there was a delegation by the Commissioner of Taxation “to the person for the time being occupying, or performing the duties of, the office of Deputy Commissioner of Taxation, Sydney” of certain specified functions including those under s.264 of the Act. The Deputy Commissioner had, by memorandum, recommended to the Commissioner the temporary transfer of Mr Osborne to the position of Deputy Commissioner. The memorandum had been endorsed “approved” by the Commissioner who dated and initialled it. The argument as to invalidity rested on reg.108(1) of the Public Service Regulations 1935 (Cth), which provided that the secretary of a department “may give a direction in writing to an officer” to perform the duties of a senior executive service officer in the department. It was argued that there had been a mere authorisation by the Commissioner, exercising the powers of the secretary, which was not capable of being regarded as a direction. Bowen, C.J, Wilcox and Lee, JJ. rejected the argument saying[26] that
“It is true that the document was not framed in terms of an instruction to Mr Osborne. However, the document evidenced in writing Mr Boucher’s decision that Mr Osborne should carry out the duties ordinarily carried out by Mr Cortese, during his temporary absence on another project. The endorsement of a memorandum with a signification of approval is a familiar method of recording decisions within government. We see no necessity to construe reg 108 in such a manner as to impose an obligation to create a separate document, directed to the person who is to undertake the duties.”
This decision, we think, is based on a particular view of what is usual practice in the recording of decisions within departments of government.
[23][1908] S.C. 171.
[24]At 173.
[25](1988) 20 F.C.R. 342.
[26]At 350.
Stone v. Law Society of The Northern Territory[27] is in some respects a case similar to the present. The Law Society of the Territory adopted the recommendations of an Ethics Committee which found Stone, a solicitor, guilty of professional misconduct. There had been a purported delegation to the committee of the Society’s powers to investigate a complaint. Stone argued, amongst other things, that there was no evidence of a delegation by the Society to the committee pursuant to s.47A of the Legal Practitioners Act 1974 (N.T.). Sub-section (1) provided that, “The Law Society may, by instrument in writing, delegate to a person any of its powers or functions other than this power of delegation and the power to admonish, fine and lay charges before the Complaints Committee”. The Ethics Committee by-laws were in place, which provided for preliminary consideration of complaints by the executive officer and president of the Society. The by-laws further provided that the president could summon a meeting of the Ethics Committee if the Society was of the opinion that a prima facie case had been made out. In response to the submission that the Society’s powers had not been appropriately delegated under s.47A, Martin, J. stated[28] that –
“All that is required is an instrument in writing by which the society delegates any of its powers and functions … The by-laws are such an instrument. It is not a requirement that any such delegation be signed by any person. .... On the face of the evidence available the Committee was acting as delegate of the society pursuant to s.47A.”
It is not entirely clear from the judgment how it was that the by-laws were to be regarded as an instrument in writing by which the Society delegated its powers. We have not found the reasoning in this case, which is very shortly stated, of assistance in the resolution of the issue presently before this Court.
[27](1992) 108 F.L.R. 332.
[28]At 343.
In National Companies and Securities Commission v. Watson[29] an investigator in the Western Australian Corporate Affairs Department issued the defendant with a notice to produce documents under s.12(2)(a) of the Companies (W.A.) Code. The defendant director claimed the notice was invalid, on the ground that the purported delegation to the issuing officer was ineffective as it did not comply with s.12(1) of the relevant Act, which provided that the Commission “may, either generally or as otherwise provided by the instrument of delegation, by writing under its common seal, delegate to any person” of a specified class any functions or powers conferred on the Commission. The deputy chairman had purported on 1 July 1982 to execute under the common seal of the Commission instruments of delegation. The minutes of a meeting of a division of the Commission on that same day merely recorded that the deputy chairman had informed the division of the purported execution of those documents. However, no resolution was made in those or other minutes authorising the delegation. In minutes of a meeting held on 29 September 1982, the Commission “recalled” the execution of those instruments and ratified them. Kennedy, J. held that a resolution recorded in the minutes of a meeting ratifying earlier instruments of delegation satisfied the requirement that the delegation be in writing under the common seal of the Commission.
[29](1989) 15 A.C.L.R. 195.
Having considered the judgments in each of these cases, we have found nothing in the reasoning to cause us to depart from our earlier conclusion that the resolution upon which the RPA relies, and its confirmation by the chairman at the next meeting, are insufficient to amount to a delegation in writing required by s.313. We would therefore uphold ground 1 on behalf of both appellants.
We record that Mr. Uren did not argue explicitly that Mr. Dunn’s acts and documents could be supported under the Carltona principle.[30]
[30]Carltona Ltd. v. Commissioner of Works [1943] 2 All E.R. 560, as to which see R. v. Ngo [1999] 3 V.R. 265 at 271-2.
Grounds 5 and 6
The second principal submission made in this Court on behalf of both appellants related to two grounds which are in the following terms. Ground 5 alleges that the tribunal erred in not holding that upon the proper construction of s.151 of the Act, alternatively by law, the RPA was obliged before bringing a charge in the Tribunal to afford the affected practitioner an adequate opportunity to respond to the proposed charge, and in not further holding that any proceeding begun in the Tribunal in disregard of such requirement was vitiated. Ground 6 claimed that the proceeding had not been validly brought against B having regard to the requirement that he respond to Mr Dunn’s letter of 16 October within seven days. Both grounds rely on the practitioner’s entitlement to natural justice, as expounded in Murray, where it was held by the New South Wales Court of Appeal that the legal practitioner’s entitlement to be heard necessarily entailed the right to see a copy of the complaint, and that failure to provide the practitioner with a copy of the complaint in advance and an opportunity to respond vitiated the institution of the proceedings against him.
Having regard to our conclusion on the first ground it is unnecessary for us to deal at length with this ground, but, in deference to the argument of counsel, we shall deal in brief with the issues raised. It may at once be accepted that the practitioners were entitled to natural justice and to be given reasonable notice of the complaints made against them before charges were laid. It was argued for B that a practitioner under investigation must be given a copy of the complaint and an opportunity to answer it before a charge is laid. The submission was that Mr Dunn’s letter of 16 October 2000 did not comply with the requirements of Murray’s case because the letter did not itemise the dealings alleged against the practitioner or adequately specify the matters of disgraceful or dishonourable conduct alleged against him, did not ventilate all matters of misconduct addressed in the charges subsequently filed and required a response within a period of seven days.
In our view these grounds are not made out and, furthermore, no question of law is in any event involved. The matters alleged against both B and G had been the subject of detailed communications between the RPA and the practitioners over an extended period going back to 1998. The facts involved were not particularly complicated. In substance, it was alleged that in a number of different transactions B and G had mixed their own affairs with their clients, preferred their own interests, acted where conflicts of interest arose with their clients, preferred the interests of one group of clients to another and failed to disclose to clients the true nature of their (the practitioners’) own interests. For example, it was alleged that B was a director of a certain company which had been appointed trustee of a mortgage trust and that B and members of his family were beneficiaries of the trust. It was alleged that in October 1993 the company had purchased a property in Collingwood for $1,300,000. The property was purchased with the intention of redevelopment and a deposit was paid from the company’s investment account. It was claimed that the balance of the funds required to complete the purchase were provided by two groups of clients of B and G’s firm. It was alleged that these two groups were treated differently, one group being unsecured and paid interest at the rate of 12.5%, and the second group being secured by registered mortgage and paid interest at a higher rate. Later, some of the investors in one group were repaid their funds in whole or in part while other client investors were introduced. The Collingwood property was later sold for a considerable loss and none of the client investors were repaid the funds provided by them, instead they were treated as contributors to mortgages secured over land owned by other companies controlled by B and G and other clients of the firm.
The charges, as we have said, were laid on 30 October 2000. Mr Dunn’s letter had been sent on 16 October and B did not seek an extension of time in which to supply further material. G was sent a similar letter by Mr Dunn dated 16 October and replied at length by letter dated 23 October 2000, stating in that letter that he would not be requiring an extension of time.
In the circumstances the Tribunal, as we have said, took the view that the limit of seven days given to B and G to supply further material to Mr Dunn was not unreasonable, bearing in mind particularly that B never sought an extension of time in which to supply further material.
In these circumstances, our view is that neither of grounds 5 nor 6 has been made out. B, who was represented by Mr O’Connor, a solicitor, at the time chose not to complain that the time given was insufficient. In rejecting the claim that inadequate time and particularisation were given, the Tribunal made a finding of fact, and no question of law is in our view raised by these grounds. We accordingly reject them.
The other grounds raised on behalf of B
In light of our conclusion in relation to B’s first ground, it is sufficient to say as to all the other grounds raised on behalf of B that we think there is no substance in them. In so far as they were raised before the Tribunal, we agree in substance with the Tribunal’s reasons for rejecting them.
The case against G
G conducted his case on his own behalf, but adopted the submissions made on behalf of B. Grounds 1, 5 and 6 of G’s grounds were in terms identical with the like grounds raised on behalf of B. We have already upheld ground 1, and our reasons for rejecting grounds 5 and 6 in the case of G are strengthened by the fact that, as we have said, G not only made no complaint about the shortness of the time he had been given to respond to Mr Dunn’s letter of 16 October, but also made a substantial answer on the merits on 23 October. As to G’s remaining grounds, we shall deal shortly with grounds 12 and 13, but otherwise we would reject the grounds raised by G as having no substance. Again, in so far as G’s objections were raised before the Tribunal and dealt with by it, we agree in substance with the reasons given by the Tribunal.
Grounds 12 and 13
Ground 12 claims that the Tribunal exhibited such a degree of bias against the appellant in both the Tribunal’s consideration of the withdrawn charges in proceedings T0301 of 1999 and T0045 of 2000 and the bringing and pursuit of present proceeding T0334 that its decision should be set aside as incompetent. Ground 13 claims that the Tribunal exhibited such a degree of bias in favour of the RPA in its consideration of the withdrawn charges and the bringing and pursuit of the present proceedings that its decision should be set aside as incompetent.
In support of his grounds alleging bias against the Tribunal G relied on the following occurrences and allegations of fact, sometimes expressed in emotive language. What follows is confined to matters bearing, in one way or another, on the impartiality of the Tribunal and does not include allegations simply against the RPA.
G alleged first that the “prejudicial relationship between the Tribunal and the RPA” was earlier established by the withholding by the Tribunal of the service of proceedings upon him from October to December 1999 at the request of the RPA. It is clear, however, that that was done simply because the RPA had indicated that it intended to bring a further charge against G.
G relied on the transcription of parts of tape-recordings of the proceedings before the Tribunal. The respondent did not challenge the accuracy of the record. The first exchange relied on occurred at the hearing on 8 March 2000. It is as follows:
“[G]:Well, all I’m asking your Honour is that I be dealt with justly and fairly ...
Chairman: I’d like to think that will occur Mr. [G] ...
[G]: That’s the point ...
Chairman:If you set out to antagonise the Tribunal, you’re going to do yourself a disservice.”
G sought to rely on the next exchange but, in our view, there is nothing in it and we do not trouble to set it out. It is convenient to state that in what follows we exclude certain passages relied on by G which we consider clearly of no assistance to him either alone or cumulatively with other material. We do not consider such excluded passages to be sufficient to warrant individual repetition of our reasons for considering them to be without any weight. Nor do we include G’s editorial comments, usually stating his feelings, on excerpts or occurrences, though we take them into account in considering the arguments concerning bias.
At the hearing on 9 July 2001 the following occurred:
“[G]: It’s time we got all the documents before the Tribunal.
Chairman:You keep asking for more documents Mr [G] and that doesn’t make it any easier.
[G]:I do that because all the documents should be before the Tribunal.
The Tribunal should decide on all the material not just bits of the material.
This matter is akin to a prosecution. You should produce all the documents. Not just those that suit you.
That’s one of my strong objections to the way the Victorian Lawyers RPA has conducted this matter.
I’ve got nothing to fear, I’ve got nothing to hide and I want all the documents produced.
Chairman:But, time and cost are also relevant considerations, Mr [G]. The Tribunal will not allow the matter to be dragged on and on because you keep wanting more documents.
[G]:Sir, for you to say time and money are also relevant, concerns me greatly. My reputation has been placed on the line. My ability to practise my profession ...
Chairman:I’m not inviting you to make a speech.
[G]:Well, Sir, I’m going to say this. That my reputation has been put on the line by this matter. I have been unable to practise my profession for 5 years, getting on for 5 years, 4 years, we’re now into the 5th year. Now I want all the material before the Tribunal. I want the Tribunal to consider the material and make a decision. That’s all I’m asking. I don’t believe that is unreasonable. I believe that to take away a man’s profession after 30 years is a very serious matter. That is a very serious matter.
Chairman:You don’t need to tell the Tribunal that. You should be aware of that fact.
[G]:I want all the material before the Tribunal. I want the Tribunal to consider the material. I believe that to take away a man’s profession.
Chairman:Lets get on without the speeches.”
Later that day the following occurred:
“[G]:I have no intention...It has never been my intention to elongate these proceedings.
These proceedings are a full time occupation for me.
Chairman:Occupation or obsession – Mr [G]?
[G]:Er.. Would you be obsessed Sir if you .....
Chairman:I’m not here to answer your questions...
[G]:No...
[G]:Obsession. You might call it an obsession! If it’s about your life then we have to be obsessive.
Chairman:We have to be balanced also.
[G]:Not to our detriment Sir. Not to our own detriment.”
A little later G returned to the topic and this occurred:
“[G]:I would have to say to you Sir that you say I am obsessive. You say I’m obsessive. You say that I’m obsessive. I’m obsessive about this matter. I say that this is one of the worst matters ....
There is just one little issue in relation to the matter.
Chairman:You are wandering away from the point.
[G]:You are dealing with an obsessive person.
Chairman:You picked me up on that. If you keep saying it you might help to prove something.
[G]:They’d all love that Sir. They’d all love that. Let’s move on.”
A little later still the Chairman referred to the professional contact which over the years he and Mrs. Cooney, one of the members sitting with the Chairman, had had with Mr. Dunn. The following exchange occurred:
“Chairman:Mr [G], I should inform you and other members of counsel here today and any other persons who are not represented that I know Mr Dunn. I have had professional contact with him over many years. I understand that Mrs Cooney has had some professional contact with him from time to time over the years ... Ah...I just mention these matters to you in case you want to consider it .... I don’t believe it has any importance. But I simply draw it to your attention.
[G]:Your comments are noted.”
Later G took up topics that had been mentioned earlier in the day and the following exchanges occurred:
“[G]:There is one other matter that I feel constrained to mentioned [sic] to the Tribunal.
Chairman:Yes.
[G]:Ah that Sir relates to some comments which have been ... which have been made to me ...Er ... um. I think on two occasions the Tribunal has alleged that I’m obsessive and I’ve been accused of making speeches and I’ve also been accused of delay and cost. Increasing the costs of this matter.
Chairman:Are you suggesting that I have made accusations directed to you of delay and increase in costs ....
(Indecipherable comment by others)
[G]:I’m only making a comment.
Chairman:You have to be accurate Mr [G].
[G]:Clearly you can check the transcript, and I’ll be seeking a copy of the tape of these proceedings. Ah...also
Chairman:I have certainly referred to being concerned about the costs of this matter. I’m not sure how many days we have been here so far still dealing with the preliminary question. I think that’s beyond dispute Mr [G] that that would be a matter of concern.
[G]:I think we are all concerned about the costs... It’s a matter .....
Chairman:If you want to quibble about that before the Court of Appeal try it.
[G]:I didn’t mention the Court of Appeal.
Chairman:I know you didn’t. I’m inviting you to do so.
[G]:Well we’ll have to see if your invitation will be taken up when we see your written reasons.
Chairman:I’ve given my written reasons. If you are referring to today.
[G]:It’s ....
Chairman:They are the written reasons. I’m not going to go away and produce some magnum opus. You have the reasons and they will be typed and provided to you.
[G]:Thank you for providing them.
[G]:The other matter is that you made some comment about your knowledge of Mr Dunn.
Chairman:Yes..
[G]:I don’t know why that comment was made.
Chairman:Because I felt it appropriate that I disclose to you and all concerned in this matter that Mr Dunn is known to me. He’s here today apparently subpoenaed by you. You are making submissions concerning what ought to be done. It seemed to me that it was appropriate for me to disclose that I know him. Through professional contact.
[G]:Yes.
Chairman:I’ve been around a few years. I suspect Mr Dunn has been around a similar number of years. Probably a few years less than me.
[G]:Probably a few years less Sir. That’s right...Ah.
So the purpose was to indicate your knowledge of Mr Dunn... was to indicate to me that you had some.....
Chairman:Over many years I’ve known him professionally. Not socially....Just professionally. If I see him in the street I say ‘Hello’. Whatever it might be. We have had contact on a professional level in a number of ways over many years.
[G]:I was surprised that you made that comment.
Chairman:You maybe well aware, Mr [G], from your vast experience of these matters that any judicial officer should disclose a possible conflict situation ....and to make it plain to all concerned if there is any personal knowledge of somebody who is attending before the judicial officer. You ought to be aware of that.
[G]:I am aware. Yes. Well aware.
Chairman:Why are you querying the disclosure then?
[G]:Well ... I was querying it because... Er.... I probably know Mr Dunn as much as you do.
Chairman:Well what’s the point you are making.
[G]:Well, I’m querying the reason for your disclosure. Now you have indicated it to me... and ... that’s the point. I mean the situation is the same. Years ago I briefed you.
[G]:That’s the point. I briefed you years ago.
Chairman:I think I remember it.
[G]:Years ago I briefed you. That goes on in this honourable profession all the time. If that was the sole purpose of ...I er ...I can follow what you are saying.
You didn’t want me at a later stage to raise the issue of your knowledge of Mr Dunn.
Chairman:You said that. Not me.
[G]: I have said it. That’s all.”
The reference by the Chairman to the written reasons he had given is a reference to the reasons published that day on the question of legal professional privilege.
G did not at any time before the Tribunal gave its decision on 26 November 2001 ask the Tribunal to disqualify itself or the Chairman or any member to do so.
G also relied on the terms of the part of the Tribunal’s reasons of 26 November 2001 that related directly to his submissions as showing bias against him.
It is, we think, with respect, unfortunate that the chairman of the Tribunal asked G whether these proceedings were an obsession with him. The remark may have been meant jocularly, but it was plainly taken by G, with some justification, as a term of abuse. We think, with respect, that the remark should not have been made.
Notwithstanding this, the transcribed exchanges, whilst revealing some perhaps understandable exasperation, do not in our view raise the appearance of bias. But even if an arguable case of bias had been raised by these comments, it was G’s duty to take the point at once and seek to have the Tribunal deal forthwith upon his claim of bias. By failing to object, G, in our view, waived any right to appeal against an adverse decision on the ground of what had been said at the hearing or previously; see Vakauta v. Kelly[31]. These grounds should, therefore, be rejected.
[31](1989) 167 C.L.R. 569.
We would, nevertheless, allow the appeal by each appellant and in each case set aside the order made by the Tribunal on 26 November 2001 and substitute an order that the charges be dismissed. (Mr. Uren did not suggest that if there was no delegation in writing to Mr. Dunn any other order should be made.)
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