Byrne v Marles

Case [2008] VSCA 78


SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 7520 of 2006

STEPHEN PETER BYRNE

Appellant

v

VICTORIA MARLES and

LAW INSTITUTE OF VICTORIA LTD

Respondents

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JUDGES:

NETTLE, DODDS-STREETON JJA and COGHLAN AJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

20 February 2008

DATE OF JUDGMENT:

16 May 2008

MEDIUM NEUTRAL CITATION:

[2008] VSCA 78

1st Revision 21 May 2008 – [19], [66], [67], [83], [87]

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LEGAL PRACTITIONERS – Solicitor – Disciplinary complaint – Whether complaint made to Law Institute of Victoria and forwarded to Legal Services Commissioner a complaint within the meaning of Part 4.2 of the Legal Profession Act 2004 – Notice of complaint – Whether service of copy complaint constituted notice of details and nature of complaint – Assessment of complaint – Whether determination that complaint a disciplinary complaint a question of jurisdictional fact or of opinion – Unsatisfactory professional conduct – Whether solicitor’s alleged conduct in repeatedly ignoring apparently reasonable requests capable of constituting unsatisfactory professional conduct – Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, referred to;  Legal Profession Act 2004, ss 4.2.8, 4.2.9, 6.3.12 –Professional Conduct and Practice Rules 2005, Rule 21.

PUBLIC SERVICE – Public Service Body Head – Legal Services Commissioner – Whether employee of Government Department seconded to Office of Legal Services Commissioner ‘employee’ of Commissioner – Delegation – Whether delegation to holder of a specified office valid as delegation ‘to any person’ – Owendale Pty Ltd v Anthony (1967) 117 CLR 539, applied; - Legal Services Act 2004, ss 6.3.12, 6.4.1; Public Administration Act 2004, ss 16(1)(g), 20(1), 20(2).

ADMINISTRATIVE LAW – Certiorari – Whether Commissioner’s determination that complaint a disciplinary complaint susceptible to certiorari – Natural justice – Whether solicitor had right to be heard before Commissioner made determination – Ainsworth v Criminal Justice Commissioner (1992) 175 CLR 564, applied; Cornall v AB (A Solicitor) [1995] 1 VR 372, distinguished; Murray v Legal Services Commissioner (1999) 46 NSWLR 224, referred to.

WORDS AND PHRASES – ‘employee’;  ‘to any person’.

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APPEARANCES: Counsel Solicitors
For the Applicant

Mr R L Berglund QC with
Mr J J Isles

Stephen Peter Byrne
For the First Respondent

Mr N J D Green QC with
Mr D I Star

Solicitor to Legal Services Commissioner
For the Second Respondent Mr R A Brett QC with
Mr R H Stanley
Joseph Barravecchio

NETTLE JA:

  1. This is an appeal from a judgment given in the Common Law Division. The appellant’s claim below was for judicial review of a decision by the first respondent (‘the Commissioner’) to treat a complaint against the appellant as a ‘disciplinary complaint’ within the meaning of Part 4.2 of the Legal Profession Act 2004 (‘the Act’) and to refer it to the second respondent (‘the Institute’) for investigation pursuant to Part 4.4 of the Act. The judge dismissed the claim.

The facts

  1. As appears from…

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Byrne v Marles [2008] VSCA 78
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[2008] VSCA 78
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CaseChat Overview and Summary

In the case of Byrne v Marles, the dispute was between Mr Byrne, a solicitor, and the Legal Services Commissioner, represented by Mr Marles. The crux of the matter was a disciplinary complaint against Mr Byrne, which originated from the Law Institute of Victoria and was forwarded to the Legal Services Commissioner. The case was heard by the Supreme Court of Victoria.

The primary legal issues revolved around the validity of the complaint, the adequacy of the notice provided to Mr Byrne, and the jurisdictional scope of the Commissioner’s determination. The court had to decide whether the forwarded complaint was indeed a complaint within the statutory meaning and if Mr Byrne had been properly notified of the details and nature of the complaint. Additionally, the court had to assess whether the determination by the Commissioner that the complaint was a disciplinary one was a question of jurisdictional fact or merely an opinion. Furthermore, the court needed to determine if Mr Byrne's conduct, specifically his alleged repeated ignoring of reasonable requests, constituted unsatisfactory professional conduct.

The court held that the forwarded complaint was indeed a complaint within the meaning of the statute, and the service of the copy of the complaint was sufficient to constitute notice. It was further determined that the Commissioner’s determination that the complaint was a disciplinary one was a question of opinion, not fact. Regarding Mr Byrne’s conduct, the court found that his actions could indeed be considered as unsatisfactory professional conduct. The court also ruled that the Commissioner’s employee, who was seconded from a government department, was validly delegated to handle the complaint. Lastly, the court found that the Commissioner’s decision was not susceptible to certiorari and that Mr Byrne had not been denied natural justice by not being heard before the decision was made.

The final orders of the court were that the complaint against Mr Byrne was valid and properly notified, the Commissioner’s determination was upheld, and Mr Byrne's conduct was found to be unsatisfactory professional conduct. The court dismissed the application for certiorari and any associated relief.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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