Byrne v Marles & Anor
[2007] VSC 63
•20 March 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 7520 of 2006
| STEPHEN PETER BYRNE | Plaintiff |
| v | |
| VICTORIA MARLES | First Defendant |
| - and | |
| LAW INSTITUTE OF VICTORIA LIMITED | Second Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 8 March 2007 | |
DATE OF JUDGMENT: | 20 March 2007 | |
CASE MAY BE CITED AS: | Byrne v Victoria Marles and LIV | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 63 | |
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JUDICIAL REVIEW – Investigation by Legal Services Commissioner of a complaint made against a solicitor under the Legal Profession Act 2004 – Whether complaint was “made to the Commission” under s.4.2.5 – Whether delegation of function by Commission valid – Whether decision to treat complaint as a disciplinary complaint was an error of law – Whether notice of complaint adequate under s.4.2.8 – Whether decision of Commissioner reviewable.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Berglund QC with Mr M.J. Isles | Stephen Peter Byrne |
| For the First Defendant | Mr N. Green QC with Mr D. Star | Ms Cara O’Shanassy, Solicitor to the Legal Services Commissioner |
| For the Second Defendant | Mr R. Brett QC with Mr R.H. Stanley | Mr Joseph Barravecchio, Solicitor to the Law Institute of Victoria. |
TABLE OF CONTENTS
The Legal Profession Act 2004.......................................................................................................... 4
Issue No. 1: Was the complaint made to the Commissioner?................................................... 6
Issue No. 2: The Commissioner’s delegation of function to Ms Janet Cohen..................... 12
Issue No. 3: The decision to treat the complaint as a disciplinary complaint...................... 17
Issue No. 4: Notice of complaint under s.4.2.8 of the Legal Profession Practice Act 2004. 23
Remedies if plaintiff had succeeded............................................................................................ 27
Conclusion......................................................................................................................................... 30
HIS HONOUR:
In these proceedings the plaintiff, by originating motion, seeks to review a decision by the firstnamed defendant, the Legal Services Commissioner, to investigate a complaint against him.
The plaintiff is a barrister and solicitor of the Supreme Court of Victoria. He conducts practice as a sole practitioner in Melbourne. In April 2006, the plaintiff acted for Mr Peter Smirnios in Supreme Court proceedings commenced against him by MKM Capital Pty Ltd. In May 2006, Mr Smirnios consulted Messrs Wisewoulds, solicitors, who took over from the plaintiff the conduct of the proceedings on behalf of Mr Smirnios, and filed an appearance on his behalf.
In the following month there ensued a series of correspondence and communications between Mr Paul Marsh, the partner of Wisewoulds who was responsible for the conduct of the proceeding on behalf of Mr Smirnios, and the plaintiff. It commenced with a request by Wisewoulds to the plaintiff for the file relating to the matter in which the client was involved. The plaintiff did not accede to that request, claiming a lien over the file for his costs. As a consequence of those communications, Mr Marsh on behalf of Wisewoulds wrote a letter dated 27 June 2006 to Professional Standards, the Law Institute of Victoria (“the Law Institute”), which is the second defendant in these proceedings. The letter was entitled “Complaint against Stephen Peter Byrne.” On 7 July 2006, the Law Institute sent the letter to the first defendant (“the Commissioner”).
On 10 July 2006, the Commissioner wrote a letter to the plaintiff entitled “Complaint by Wisewoulds OBO Mr Peter Smirnios.” That letter enclosed a copy of the Wisewoulds letter to the Law Institute, and stated that the Commissioner had “referred the disciplinary complaint raised by this matter to the Law Institute of Victoria Limited being a prescribed investigatory body for the purposes of the Act.” As a result of that letter, the plaintiff on 14 July 2006 commenced the present proceedings by originating motion. On 19 July 2006 a judge of this Court granted the plaintiff an interlocutory injunction restraining the defendants from investigating the complaint, referred to in the Commissioner’s letter dated 10 July 2006, until the trial of the originating motion.
The proceedings before me are the trial of the plaintiff’s application pursuant to Rule 56 of the Rules of the Supreme Court to review the decision by the first defendant that the letter of Wisewoulds dated 27 June 2006 constituted a “disciplinary complaint” which the Commissioner was required to investigate under s.4.4.7 of the Legal Profession Act 2004 (“the Act”). The plaintiff claims relief by way of certiorari, prohibition, mandamus and declarations. The Statement of Relief or Remedy in the originating motion contains eighteen separate prayers for relief. The originating motion specifies fourteen grounds upon which that relief is sought, some of which have a number of sub‑grounds. However, Mr Berglund QC, who appeared with Mr M.J. Isles on behalf of the plaintiff, restricted his submissions to four principal bases on which the plaintiff claims relief, namely:
(1)The letter of Wisewoulds to the Law Institute dated 27 June 2006 was not a complaint under the Act, because it was not made to the Commissioner as required by s.4.2.5. The Law Institute did not have authority to receive complaints on behalf of the Commissioner. Accordingly the Commissioner does not have jurisdiction to investigate the allegations in the letter.
(2)The Commissioner acted through a purported delegate, Ms Janet Cohen. The delegation by the Commissioner of her functions to Ms Cohen was invalid for two reasons, namely:
(a)under s.6.3.12 the Commissioner may only delegate her functions to an employee; Ms Cohen was not at the relevant time an employee of the Commissioner;
(b)in any event the instruments of delegation relied on by the first defendant are too vague and uncertain to constitute valid delegations under s.6.3.12 of the Act.
(3)The Commissioner erred in determining that the letter of Wisewoulds was capable of constituting a “disciplinary complaint”. Mr Berglund submitted that no reasonable authority could have concluded that the letter contained anything more than a “civil complaint”.
(4)The Commissioner failed to give to the plaintiff a notice of the complaint which complies with the requirements of s.4.2.8 of the Act.
The Legal Profession Act 2004
The Legal Profession Act 2004 introduced a new regime for the regulation of the Victorian legal profession. It replaced the previous system which had been established by the Legal Practice Act 1996. Part 4 of the 2004 Act deals with complaints about, and discipline of, members of the legal profession. Section 4.2.1(2) provides that a complaint may involve “a civil complaint, a disciplinary complaint or both.” Section 4.2.2 defines a “civil complaint” as a complaint about conduct to the extent that it involves a “civil dispute”. Section 4.2.2(2) defines a “civil dispute” to include (inter alia) a “costs dispute” (as therein defined), and any other genuine dispute between a person and an Australian legal practitioner (or a law practice) arising out of or in relation to the provision of legal services to the person by the practitioner (or law practice). Section 4.2.3(1) defines a “disciplinary complaint” as a complaint about conduct which, if established, would amount to “unsatisfactory professional conduct” or “professional misconduct”.
Section 4.2.4 provides that a person may make a civil complaint if that person has a civil dispute with the relevant legal practice or practitioner. Section 4.2.4(2) provides that “any person” may make a disciplinary complaint about the conduct of an Australian legal practitioner. Section 4.2.5 is headed “To whom is a complaint made?” It provides:
“A complaint is to be made to the Commissioner.”
Section 4.2.6 prescribes the form and content of the complaint. Section 4.2.6(2)(d) provides that a complaint must include “details of the conduct complained about.”
Section 4.2.8 provides that the Commissioner must give a law practice or a legal practitioner written notice of a complaint as soon as practicable after the complaint is made. The notice must include the name of the complaint and details of the nature of the complaint. Section 4.2.11 provides that a complaint is to be dealt with in accordance with Part 4.3, to the extent that it is a civil complaint, and, to the extent that it is a disciplinary complaint, in accordance with Part 4.4.
Part 4.3 contains a number of provisions as to how civil complaints are to be dealt with. Part 4.4 contains provisions for dealing with disciplinary complaints and discipline. Section 4.4.2 defines “unsatisfactory professional conduct” as follows:
“’Unsatisfactory professional conduct’ includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.”
Section 4.4.3 defines “professional misconduct” as follows:
“’Professional misconduct’ includes –
(a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner, whether occurring in connection with the practice of law or occurring otherwise in connection with the practice of law, that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.”
Section 4.4.7(1) provides that the Commissioner is required to investigate each disciplinary complaint. Under s.4.4.9 the Commissioner may refer a disciplinary complaint to a “prescribed investigatory body” for investigation under Division 3 of Part 4. The Law Institute is a “prescribed investigatory body” for those purposes. Section 4.4.10 provides that if a disciplinary complaint is referred to a prescribed investigatory body, that body must investigate the complaint and report to the Commissioner about the complaint. The report must include a recommendation as to what action, if any, the Commissioner should take. Section 4.4.13(1) provides that after an investigation has been completed the Commissioner must deal with the matter in accordance with s.4.4.13. Sub‑section (2) provides that if the Commissioner is satisfied there is a reasonable likelihood that the Victorian Civil and Administrative Tribunal (“the Tribunal”) would find the practitioner guilty of professional misconduct, the Commissioner must apply to the Tribunal for an order under Division 4 in respect of the practitioner. Sub-section (3) prescribes the action the Commissioner may take if satisfied there is a reasonable likelihood that the Tribunal would find the practitioner guilty of unsatisfactory professional conduct. In such a case the Commissioner may apply to the Tribunal for an order under Division 4; she may with the consent of the practitioner reprimand or caution the practitioner; or she may take no further action against the practitioner if the Commissioner is satisfied that the practitioner is generally competent and diligent, and there has been no other substantiated complaint about the conduct of the practitioner within the last five years.
Issue No. 1: Was the complaint made to the Commissioner?
The first submission by Mr Berglund was that the letter of Wisewoulds of 27 June 2006 was not a complaint under the Act, because the letter was written and sent to the Law Institute, and not to the Commissioner. Mr Berglund submitted that under s.4.2.5 the Commissioner only has jurisdiction to deal with a complaint which has been made “to the Commissioner”, and not to some other third party. Mr Berglund submitted that the Law Institute was not authorised by the Commissioner to receive complaints on her behalf. Furthermore, s.6.3.12(2)(a) provides that the Commissioner may not delegate the function of receiving complaints under Chapter 4 to a person who is not in the employment of the Commissioner. Thus, it was submitted, the Law Institute did not, and could not, have authority to receive the complaint by Wisewoulds for and on behalf of the Commissioner. Accordingly, it was submitted, the complaint is not a complaint under Chapter 4, and therefore the Commissioner does not have jurisdiction to investigate it.
In addition, Mr Berglund relied on two further matters which are derived from the evidence in these proceedings. First, the affidavits disclose that, after the introduction of the Act in December 2005, the Law Institute continued to receive written complaints addressed to it. Consequently a practice developed between the Law Institute and the Commissioner by which the Law Institute would forward those complaints to the Commissioner who accepted the complaints as complying with the forms approved by the Commissioner under s.4.2.6(1) of the Act. Mr Berglund submitted that, although that practice might have been sensible and practical, it highlights the fact that the complaint in this case was intentionally made to the Law Institute, and not to the Commissioner, and that the Commissioner has no power to deal with it. Secondly, Mr Berglund submitted that some of the correspondence between the plaintiff and Wisewoulds, which are exhibits before me, demonstrate that Mr Marsh was properly conscious of the different roles of the Law Institute and the Commissioner, and that he understood that the Commissioner was the correct person to whom a relevant complaint should be made.
In response, Mr N. Green QC, who appeared with Mr D. Star for the Commissioner, observed that pursuant to s.4.1.1(c) of the Act, one of the purposes of Chapter 4 is “to provide a means of redress for complaints about the legal profession.” Section 4.2.3(2) provides that a disciplinary complaint can be made by any person about the conduct of an Australian legal practitioner. Thus the Act is intended to be beneficial in its operation, enabling any person to make a complaint about the conduct of a legal practitioner. Its purpose is to promote the interests of justice by providing protection to those who use the services of legal practitioners. Mr Green submitted that that broad purpose of Chapter 4 must be kept in mind when construing s.4.2.5. He submitted that the intention of the Wisewoulds letter of 27 June 2006 was to make a complaint to the appropriate body which was charged with the responsibility of entertaining complaints about legal practitioners. Before December 2005 four bodies had the power to receive such complaints, namely, the Law Institute of Victoria, the Victorian Bar Council, the Legal Ombudsman and the Legal Practice Board. The Act replaced those four avenues of complaint with one, namely, the Commissioner. In that context it was submitted that I should construe the phrase “made to the Commissioner” in s.4.2.5 to cover a situation such this case, where the complaint has been made to the wrong body, but ultimately it was “lodged with” the Commissioner. Mr Green submitted that such a complaint should be held to be one which was “made to the Commissioner” for the purposes of s.4.2.5.
Mr R. Brett QC, who appeared with Mr K. Stanley for the Law Institute, made a similar submission. Mr Brett submitted that the clear purpose of s.4.2.5 was to ensure that all complaints about the conduct of legal practitioners come under the purview and control of the Commissioner. The 2004 legislation established the office of the Commissioner who is entirely independent of and separate from the legal profession. The Act intended that all complaints be received and dealt with by the Commissioner. He submitted that s.4.2.5 reflects the fundamental purpose of Chapter 4, namely, that complaints be dealt with exclusively by the Commissioner. The purpose of s.4.2.5 is not to block complaints which are made to persons or bodies other than the Commissioner, such as the Law Institute. Rather the purpose of s.4.2.5 is to “gather” those complaints under the control of the Commissioner as the person who is solely responsible for investigating those complaints. Mr Brett submitted that on its face the Wisewoulds letter of 27 June 2006 was a letter which intended to make a complaint to the relevant institution which had the responsibility to investigate, and provide redress for, the complaint. In those circumstances it was appropriate for the Law Institute to forward the complaint to the Commissioner, who is now the sole person responsible for the investigation and disposition of such complaints.
In my view the submissions made by Mr Green and Mr Brett are correct. I agree that in construing s.4.2.5 it is important to bear in mind the fundamental purpose which that provision is designed to serve. That purpose can be elicited both from the history of legislation relating to the regulation of the legal profession, and also from the terms of the Act itself.
The history of regulation of Victorian legal practitioners was usefully summarised in the judgment of Chernov JA in Power and ors v Hamond.[1] Before 1996, the regulation and discipline of legal practitioners was very much in the hands of two professional associations, the Law Institute and the Victorian Bar Council. The Legal Practice Act 1996 replaced that system with one which involved the co‑regulation of practitioners by the Legal Practice Board, the two recognised professional associations, and the Legal Ombudsman. In turn, the 2004 Act replaced that system with a regime whereby the Commissioner has the sole responsibility for the processing, investigation and disposition of complaints relating to the profession. In other words the exclusive responsibility for the regulation and discipline of the profession was reposed in an office which is entirely independent of the legal profession.
[1][2006] VSCA 25 at [40].
The provisions of the Act, and in particular Chapter 4, are clearly directed to that purpose. They ensure that matters pertaining to the discipline of the profession are the sole province of the Commissioner, albeit that she may refer the investigation of complaints to prescribed investigatory bodies such as the Law Institute and the Victorian Bar Council. The structure of the Act is to ensure that it is the Commissioner who has and retains control of the processing and disposition of complaints. Section 4.4.8 enables the Commissioner to investigate the conduct of a legal practitioner although no complaint has been made. Section 6.3.12(2) precludes the Commissioner from delegating to a person who is not an employee of the Commissioner, a number of key functions involved in the processing of complaints. Similarly, where the Commissioner has referred a complaint for investigation by a prescribed investigatory body, the powers of that body are limited. Section 4.4.13 provides that, after an investigation has been completed, it is the Commissioner (and not the prescribed body) who must deal with the matter in accordance with that section.
In short, the Act is designed to mark out a disciplinary scheme which is quite different to that which preceded it, by ensuring that all complaints, and all disciplinary matters, become the sole province of the Commissioner, who is independent of the profession and the professional bodies which represent the legal profession. It is that consideration which explains the purpose served by s.4.2.5, and which provides the key to its correct construction. As submitted by Mr Brett, s.4.2.5 is intended to serve the object of the legislation by ensuring that all complaints as to the conduct of legal practitioners come to the Commissioner. In other words, it is the Commissioner, and no-one else, who is to be the recipient of any such complaint.
On its face, the letter of Wisewoulds to the Law Institute dated 27 June 2006 was intended by the writer to be a complaint about the conduct of the plaintiff. It is clear that the writer of the letter did not simply intend to vent his grievances to his own professional body. Rather, the letter was intended to be a formal complaint which would be the subject of appropriate action and redress. The letter itself is headed “Complaint”. The letter then set out the factual background to the “complaint” in chronological order. Attached to the letter were copies of the correspondence referred to in the letter. The letter concluded by the writer expressing his view that the conduct by the plaintiff “has been unprofessional and obstructive”. The writer invited the recipient to contact him should he have any further questions.
Although the Law Institute is no longer empowered to receive and act on complaints, historically and until recently it had the power to do so. Under the 2004 legislation it may still be involved in processing complaints, on referral to it of an investigation by the Commissioner. Thus the Law Institute has long been, and, to a limited degree still is, involved in the process of considering and dealing with complaints about legal practitioners. That consideration lends weight to the inference that the Wisewoulds letter was intended to be a formal complaint, and that it be the subject of appropriate action and redress. As the Law Institute did not have the power to process the complaint, it forwarded the letter to the appropriate body now charged with that responsibility, the Commissioner. In other words, the complaint was made with the intent that it be received and acted on by the person who the writer of the letter evidently understood was charged with the responsibility of dealing with it. However, that person was the Commissioner, and not the Law Institute. The complaint was forwarded by the Law Institute to the Commissioner. Bearing in mind the underlying purpose of s.4.2.5, I consider that in those circumstances the correct analysis is the complaint was “made to the Commissioner” in accordance with that section. Accordingly the first basis relied upon by the plaintiff in support of his application to review the decision of the Commissioner should fail.
Mr Berglund submitted that there was evidence that Mr Marsh of Wisewoulds was aware that the Commissioner was the appropriate person to whom he should make a complaint under the Act. Instead Mr Marsh chose to send the complaint to the Law Institute. Mr Berglund submitted that I should therefore infer that Mr Marsh did not intend to make a formal complaint on behalf of his client under the Act. In support of that submission Mr Berglund relied on a letter by the plaintiff to Wisewoulds dated 20 June 2006. It stated that Mr Marsh had not described the basis “… you have for making any complaints against us to the Law Institute or, as it would be, to the Legal Services Commissioner”. Mr Berglund also relied on a letter by Wisewoulds to the plaintiff dated 27 June 2006, which enclosed a copy of the Wisewoulds’ letter to the Law Institute, and which stated that “… we are currently obtaining instructions from Mr Smirnios as to whether he wishes to lodge a complaint with the Legal Services Commissioner on the basis that you are threatening to sue him without providing him with a copy of the fee agreement upon which you rely”.
Although the correspondence to which I have referred indicates that Mr Marsh was aware that a complaint may be made to the Legal Services Commissioner, nonetheless it is difficult to draw any reliable inference from the references to the Commissioner in the two letters to which I have just referred. On the other hand the letter of Wisewoulds to the Law Institute dated 27 June 2006 bears the hallmarks of a formal complaint which was sent to the professional body which, historically, had long had the responsibility of dealing with disciplinary issues raised by such complaints. Notwithstanding the two letters to which Mr Berglund referred, I am nonetheless persuaded that the probable inference is that, in sending the letter to the Law Institute, Wisewoulds intended to make a formal complaint to an appropriate body charged with the responsibility of dealing with the disciplinary issues raised by the letter.
Issue No. 2: The Commissioner’s delegation of function to Ms Janet Cohen
The plaintiff’s second ground of review is that the delegation by the Commissioner of her function of determining the nature of the complaint by Wisewoulds, and of investigating that complaint, to Ms Janet Cohen, was invalid for two reasons. First, he submitted that at the time of the delegation, Ms Cohen was not an employee of the Commissioner and therefore was not a person to whom the Commissioner was entitled to delegate her functions. Secondly, he submitted that the instrument of delegation was too vague and uncertain to constitute a valid delegation under s.6.3.12 of the Act.
Section 6.3.12(1) of the Act provides:
“The Commissioner, by instrument, may delegate to an employee referred to in s.6.4.1 any function of the Commissioner, except this power of delegation.”
Section 6.4.1 of the Act provides:
“Any employees that are necessary for the purposes of the Board or Commissioner are to be employed by the Commissioner under Part 3 of the Public Administration Act 2004.”
The letter of the Commissioner to the plaintiff of 10 July 2006, notifying him of the complaint from Wisewoulds, was signed by Ms Cohen. By an instrument of delegation dated 28 December 2005 the Commissioner, pursuant to s.6.3.12(1) of the Act, had delegated “ … to the person for the time being performing the duties of the Director, investigations, being an employee referred to in s.6.4.1 of that Act” a number of the Commissioner’s functions, powers and duties in Chapter 4, which were specified in the instrument of delegation. Among those powers included the power to notify a practitioner of a complaint under s.4.2.8, and some of the powers and functions of investigation of disciplinary complaints, including those under s.4.4.7, and 4.4.9 of the Act. The Commissioner executed a further delegation in a similar form dated 27 January 2006, which specified further functions, duties and powers. In June 2006, Ms Cohen held the position of “Director Investigations”, in the Office of the Commissioner. Subject to her supervision she allocated the conduct of the matter to a senior complaints officer employed by the Commissioner. In her affidavit Ms Cohen stated that she formed the opinion that the letter of Wisewoulds of 27 June 2006 constituted a disciplinary complaint. Ms Cohen signed the letter to the plaintiff dated 10 July 2006, and the letter of the same date to the Law Institute, referring the matter to the Law Institute for investigation by it.
Before 12 December 2005, Ms Cohen was employed by the Legal Ombudsman under Part 3 of the Public Sector Management and Employment Act 1998 pursuant to s.425 of the Legal Practice Act 1996. On 5 April 2005, Part 3 of the Public Administration Act 2004 came into operation. Pursuant to Schedule 2 of that Act, Ms Cohen was deemed to be employed under Part 3 of the new Act. On 12 December 2005, Ms Cohen’s employment was transferred to the Department of Justice. On the same date she was “seconded” to the Office of the Commissioner for an initial period of six months. At the conclusion of that period, her secondment was extended for a further two months until 31 August 2006. On 11 October 2006 she entered into a written contract of employment with the Commissioner, such contract commencing on 1 September 2006.
In her affidavit Ms Cohen stated that since her secondment to the Office of the Commissioner, she had taken direction from and been answerable to the Commissioner. Since 12 December 2005 she had been remunerated by the Commissioner. The question is whether, at the time of the execution of the instruments of delegation by the Commissioner, and at the time Ms Cohen dealt with the letter of Wisewoulds of 27 June 2006, Ms Cohen was “an employee” of the Commissioner for the purposes of s.6.3.12 and s.6.4.1 of the Act.
Mr Berglund submitted that, on a proper analysis of the facts, at all times Ms Cohen was employed by the Department of Justice. He submitted that her secondment to the service of the Commissioner did not alter the fact that she was and had remained an employee of the Department of Justice.
There is nothing in the Legal Profession Act which indicates that the noun “employee” is used in s.6.4.1 in other than its ordinary common law meaning. The same term (or derivatives of it) appears in a large number of other provisions of the Act in which it would appear to be used in its ordinary well-understood meaning.[2] Section 6.4.1 specifies that any employees who are necessary for the purposes of the Board or the Commissioner are to be “employed by the Commissioner under Part 3 of the Public Administration Act 2004”. Section 20 of that Act provides for the employment by a public service body Head of employees. The powers given to the relevant employer under s.20(2) are, by and large, similar to those of an ordinary employer.
[2]See for example s.1.2.1; 1.2.4(1)(a)(vi); s.2.2.5; s.2.7.21(1)(a); s.2.7.42; s.3.2.14(1); s.5.1.1(a)(iii); s.5.3.1.
The question whether a person is an employee commonly arises in cases which involve the issue whether a principal is to be held vicariously liable for the acts of another at common law. Traditionally the right of the principal to control the putative employee in the performance of his or her work was considered to be a significant, if not determinative, element of the relationship of employer and employee.[3] However more recently it has been recognised that the right of the principal to control the putative employee is not the exclusive criterion by which to determine the existence of a relationship of employment. In Stevens v Brodribb Sawmilling Co Pty Ltd,[4] Mason J (with whom Brennan J and Deane J agreed on this point) stated:
“But the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question … Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.”[5]
[3]See for example Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 at 571; Humberstone v Northern Timber Mills (1949) 79 CLR 389 especially at 404 (Dixon J).
[4](1986) 160 CLR 16 at 24.
[5]See also pp.36-6 per Wilson and Dawson JJ; Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 40-41 (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ); State of New South Wales v Lapore (2003) 212 CLR 511 at 586 (Gummow and Hayne JJ).
The affidavits in this case are not particularly informative as to the terms upon which Ms Cohen was seconded as an employee to the office of the Commissioner. Nevertheless, according to her affidavit, at all times she has been remunerated by the Commissioner for her services, and she has taken direction from and been answerable to the Commissioner. Each of those factors are important indications of the existence of a relationship of employment between Ms Cohen and the Commissioner. On the other hand, the fact that Ms Cohen was on secondment from the Department of Justice to the Commissioner does not disturb that conclusion. The Macquarie Dictionary meaning of the verb “second”, in this context, is to “transfer … temporarily to another post, organisation or responsibility”. That definition accords with the normal every day use of the word in this context. In other words, during the period of her secondment, the employment of Ms Cohen was transferred, albeit temporarily, to the Commissioner. For that period she was not in the employment of the Department of Justice, but of the Commissioner.
Section 6.3.12(1) empowers the Commissioner to delegate to an employee (referred to in s.6.4.1) any function of the Commissioner, except the power of delegation. By contrast, the power of the Commissioner under s.6.3.12(2) to delegate functions to a person who is not an employee but who is a member of a class prescribed by regulations, does not extend to a number of important functions of the Commissioner, including the functions of receiving and dealing with complaints under Chapter 4. As Mr Brett has pointed out, s.6.3.12 is thus designed to keep the function of receiving complaints, and various functions involving the disposition of those complaints under Chapter 4, under the direct control of the Commissioner. That consideration, in my view, adds to the significance of the control by the Commissioner of Ms Cohen, in determining whether, for the purposes of s.6.3.12(1) and s.6.4.1, Ms Cohen was an employee of the Commissioner. It is that control which is important to effecting the purposes of the Act. It is, in its own right, a strong indicator of the relationship of employment. For those reasons, I consider that the fact that Ms Cohen was subject to the direction and control of the Commissioner, together with the circumstance that she was at all times paid by the Commissioner, lead to the conclusion that, for the purposes of s.6.3.12, she was an employee of the Commissioner, and accordingly that she was a person to whom the Commissioner had the power to delegate functions under Chapter 4 of the Act.
Mr Berglund submitted that the fact that Ms Cohen was not a party to a written contract of employment with the Commissioner until October 2006 weighs against the conclusion that she was in July 2006 an employee of the Commissioner. That argument is not persuasive. It is not necessary for an employee to be the subject of a written contract of employment for the employment relationship to be appropriately constituted. The later existence of a contract of employment does not, logically, negate the existence of the relevant relationship of employment at an earlier date.
Mr Berglund also submitted that, even if Ms Cohen was an employee of the Commissioner, nonetheless the instruments of delegation executed by the Commissioner were ineffective, because they were too vague and imprecise. Each of the instruments of delegation the Commissioner purported to delegate the function specified in the instrument “ … to the person for the time being performing the duties of the Director, investigations, being an employee referred to in s.6.4.1 of that Act … “. Mr Berglund acknowledged that an instrument delegating powers and functions to a person who, for the time being, holds a particular office, may be a valid exercise of a statutory power of delegation.[6] However, Mr Berglund submitted that the delegations in this case were too vague because any person could be performing one or more of the duties of the Direct Investigations of the Commissioner; it was not necessary that a person, performing those duties, be an employee of the Commissioner.
[6]Owendale Pty Ltd v Anthony (1967) 117 CLR 539 at 563 (per Windeyer J at first instance). See also at 598 (Taylor J), 611 (Owen J); AB Oxford Cold Storage Pty Ltd v Arnott [2005] VSCA 111 at [34] (Nettle JA).
That submission can answered shortly. In each of the two instruments the Commissioner delegated the functions, therein specified, to the person for the time being performing “the duties” (plural) of the Director investigations. That is, the Commissioner did not delegate those functions to any person performing “any of the duties” of the Director’s investigations; rather, the delegation was to the person for the time being performing “the duties” of that office. The instrument of delegation made it plain that the person who occupied that position would be an employee referred to in s.6.4.1 of the Act. There is, in my view, nothing imprecise about the description of the holder of the office to whom the relevant delegation was made. At all material times Ms Cohen was the sole holder of that office. She was an employee of the Commissioner. It was to her that the delegation was made.
In this connection, I note that in AB Oxford Cold Storage Pty Ltd v Arnott,[7] the relevant delegation was to “the person occupying the position or performing the duties of executive director, health and safety of the Victorian WorkCover Authority”.[8] Nettle JA (with whom Callaway JA and Byrne AJA agreed) held that such a delegation was valid. His Honour stated:[9]
“ … whatever be the functions and powers of the particular office, common sense and experience suggests that it will ordinarily be clear enough whether a person is for the time being holding or performing the duties of the office. Consequently, in the ordinary case there will be adequate certainty as to whether such a person is an eligible recipient of a delegation. Problems might arise occasionally, but they are likely to be of a sort capable of being dealt with on a case by case basis. The possibility that they may occur is therefore not a reason to suppose that the power of delegation in s.21 of the Accident Compensation Act excludes delegations to the holder of an office or a person acting in or purporting to perform the duties of the office.”
[7]Above.
[8]Emphasis added.
[9]At [36].
For those reasons I conclude that the instruments of delegation, by which the Commissioner delegated to Ms Cohen the functions (inter alia) in s.4.2.8, 4.4.7, and 4.4.9 of the Act, were valid delegations of those functions. Accordingly Ms Cohen was duly authorised on behalf of the Commissioner to consider the complaint made by Wisewoulds, to respond to it, and to refer it to the Law Institute for investigation.
Issue No. 3: The decision to treat the complaint as a disciplinary complaint
The plainfiff’s third basis of review is that the Commissioner erred in determining that the letter of Wisewoulds dated 27 June 2006 was capable of constituting a “disciplinary complaint” under Chapter 4 of the Act. Mr Berglund submitted that, at its highest, the complaint in the letter constituted a civil dispute about legal costs, and in particular a dispute whether the plaintiff had a lien over the file of Mr Smirnios. Mr Berglund submitted that the Commissioner erred in deciding that the letter was a disciplinary complaint. He submitted that no reasonable Commissioner could have concluded that it constituted a disciplinary complaint.
On the other hand both Mr Green and Mr Brett submitted that, while the letter may have also contained a civil dispute, nonetheless it was not unreasonable for the Commissioner to treat the letter as constituting a disciplinary complaint concerning the conduct of the plaintiff. Under s.4.2.1(2) a complaint may involve “a civil complaint, a disciplinary complaint or both”. Accordingly, irrespective of whether the letter involved a civil dispute, it was not unreasonable for the Commissioner to conclude that it also involved a disciplinary complaint.
In determining the correct classification of the complaint in the Wisewoulds’ letter, a number of preliminary observations should be made. First, that issue does not involve determining whether the factual allegations contained in the letter are true or have any substance. Rather, the question concerns the correct characterisation of the allegations made by Wisewoulds. Secondly, the question is not whether the conduct alleged by Wisewoulds constituted unsatisfactory professional conduct or professional misconduct. The question is whether the Commissioner erred in concluding that the complaint by Wisewoulds included a disciplinary complaint. Thirdly, the question is not whether this Court agrees or disagrees with the decision of the Commissioner to treat the complaint made by Wisewoulds as involving a disciplinary complaint. The Court is not exercising an appellate jurisdiction. Rather the jurisdiction is by way of review. The question is whether there has been error disclosed in the decision making process undertaken by the Commissioner.[10] In particular, the plaintiff must establish that the decision of the Commissioner was “unreasonable” in the sense described by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation[11] where his Lordship stated:
“It is true the discretion must be exercised reasonably. Now what does that mean? … There may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. … That is unreasonable in one sense. … It is true to say that if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming … .”
[10]Chief Constable of North Wales v Evans [1982] 1 WLR 155 at 1173 (Lord Brightman); Craig v The State of South Australia (1995) 184 CLR 163 at 175-6.
[11][1948] 1 KB 223 at 229-30.
It must be borne in mind that the classification of the complaint by the Commissioner was essentially a preliminary step in the disposition by the Commissioner of the complaint. At that stage the Commissioner only had before her the allegations contained in the letter of complaint, together with documents attached to it. It is correct, as Mr Berglund submitted, that the correct characterisation of the complaint as either a civil complaint, a disciplinary complaint, or both, may affect the procedures adopted by the Commissioner for dealing with and disposing of the complaint. Nonetheless the characterisation of the complaint at this stage was, of necessity, a preliminary step in whatever process is undertaken by the Commissioner. The question whether the Commissioner’s decision was “unreasonable”, in the sense described above, must be considered in the context of the type of decision made by the Commissioner, and the circumstances in which it was made. Indeed such an approach is evident in the decision of the Court of Appeal in Power v Hammond.[12] In that case the letter of complaint contained what was described by Ormiston JA as a “farrago of abuse”.[13] Nonetheless the Court was able to distil from the letter some matters which might be described as constituting a “complaint” within the meaning of the 1996 legislation.[14] In doing so the court eschewed an overly technical approach to the task of identifying and characterising the relevant complaint.
[12]Above.
[13]Paragraph 28.
[14]See especially at para.70, per Chernov JA.
Bearing in mind those principles, I turn to the characterisation of Wisewoulds’ letter of complaint. The letter commenced by stating that Wisewoulds had taken over the conduct of the Supreme Court proceedings on behalf of Mr Smirnios. It stated that Wisewoulds had not been able to obtain a copy of the plaintiff’s file. Wisewoulds had attempted to obtain from the plaintiff a copy of the fee agreement which the plaintiff alleged that he had entered into with Mr Smirnios, but had been unable to do so. The letter alleged that: “communication between Wisewoulds and Mr Byrne has been marred by Mr Byrnes’ manner, method of communication and irrational behaviour”.
The letter then set out in some detail the facts alleged by Mr Marsh. They included that the plaintiff had claimed a lien over the file, but, nonetheless, had not provided Wisewoulds with a copy of the fee agreement which would form the basis of the claim for fees on which the lien was founded. The letter set out the communications between Mr Marsh of Wisewoulds and the plaintiff both on the telephone and by letter. The correspondence contained a number of requests by Wisewoulds to the plaintiff for a copy of the fee agreement, pointing out that Mr Smirnios did not have a copy of the agreement himself. The response of the plaintiff was to assert his right to the lien, and to challenge Wisewoulds to outline the nature of a complaint which Wisewoulds had threatened to make to the Law Institute. The letter concluded thus:
“Wisewoulds has had great difficulty in communicating with Mr Byrne. Mr Byrne has fixated his correspondence on the proposition that Wisewoulds may refer the matter to the Law Institute of Victoria and has ignored our repeated request for a copy of the agreement (intentionally in our view).
It is an obvious proposition that our client is entitled to request a copy of the fee agreement so we may advise him as to Mr Byrnes’ claim for fees and the lien.
In our view Mr Byrne’s conduct has been unprofessional and obstructive, especially considering his knowledge of the client’s poor grasp of English. There has been one verbal request and four written requests for the fee agreements, all of which have failed to produce the document, or a reasonable response.”
In characterising the nature of the complaint contained in the letter it is important to bear in mind the context in which the complaint was made. Wisewoulds had recently taken over acting for the client, Mr Smirnios, who was the defendant in current Supreme Court proceedings against him. The plaintiff retained Mr Smirnios’ file because he alleged that Smirnios was in debt to him for his costs. Mr Smirnios did not have a copy of the fee agreement which the plaintiff claimed was the basis of that debt. Wisewoulds could not advise Mr Smirnios as to his liability for the alleged debt without first sighting the fee agreement. In that light, the gravamen of the complaint made by Wisewoulds to the Law Institute was not only that the plaintiff had failed to provide to Wisewoulds a copy of the fee agreement, but also that the plaintiff had failed to respond reasonably and professionally to requests that he do so. Thus, in the penultimate paragraph of the letter, the complaint was that the plaintiff’s conduct had been “unprofessional and obstructive”. The complaint was not, as Mr Berglund contended, a complaint about the nature or quantum of the costs claimed by the plaintiff. Rather, it was a complaint as to the nature of the conduct of the plaintiff in response to a request that he provide a copy of the fee agreement to Wisewoulds.
In that light it was not, in my view, unreasonable, in the Wednesbury Corporation sense, for the Commissioner to conclude that the complaint by Wisewoulds was not confined to a civil dispute about the existence of an obligation of Smirnios to pay the costs, and the claim by the plaintiff that he had a lien over Mr Smirnios’ file. Rather, as I have stated, the complaint related to the conduct of the plaintiff, and in particular his conduct in the course of the communications between himself and Wisewoulds. It is not necessary, nor appropriate, for me to venture upon a definition of the phrase “unsatisfactory professional conduct” as that phrase occurs in the Act. As I stated the definition in s.4.4.2 is an inclusive definition. Nonetheless it would not have been unreasonable for the Commissioner to have taken the view that the complaint by Wisewoulds as to the conduct of the plaintiff was a “disciplinary complaint”, at least to the extent that it involved a complaint as to “unsatisfactory professional conduct” by the plaintiff.[15]
[15]Compare New South Wales Bar Association v Meakes [2006] NSWCA 340 at [85 – 86] (per Tobias JA).
Furthermore, s.4.4.4(a) provides that, without limiting the definition of professional misconduct and unsatisfactory professional conduct, conduct is capable of constituting either professional conduct or unsatisfactory professional conduct if (inter alia) it is conduct constituting a contravention of the legal profession rules. Rule 21 of the Professional Conduct and Practice Rules 2005 of the Law Institute provides:
“A practitioner, in all the practitioner’s dealings with other practitioners, must take all reasonable care to maintain the integrity and reputation of the legal profession by ensuring that the practitioner’s communications are courteous and that the practitioner avoids offensive or provocative language or conduct.”
Clause 30.1.2 of the Rules provides that a practitioner must not engage in conduct which is calculated or likely to a material degree to be prejudicial to the administration of justice.
Part of the complaint by Wisewoulds related to the tenor of the responses by the plaintiff when requested to provide a copy of the fee agreement which he alleged he had with the plaintiff. The Wisewoulds letter alleged that in a telephone conversation on 7 June 2006 the plaintiff used opprobrious language in describing his former client. The Wisewoulds letter to the Law Institute also complained about the terms in which the plaintiff responded to its repeated requests for a copy of the fees agreement. In my opinion it would not have been unreasonable for the Commissioner to have taken the view that the conduct of the plaintiff complained about in the Wisewoulds letter may have contravened Rule 21 of the Professional Conduct and Practice Rules.
Furthermore, Wisewoulds’ letter commenced by stating that Mr Smirnios had limited command of the English language, and that he was at risk of losing his home if he was unable to successfully defend the proceedings against him. As I have stated, the central complaint by Wisewoulds was that the plaintiff failed to make any reasonable or professional response to requests to him for a copy of the fees agreement, so that Wisewoulds could resolve the impasse as to the plaintiff’s claimed lien over the file of Mr Smirnios. In those circumstances it would not be unreasonable for the Commissioner to have taken the view that the conduct of the plaintiff as alleged in Wisewoulds’ letter may also have contravened Rule 30.1.2, in the sense that the conduct was either calculated, or likely to a material degree, to be prejudicial to the administration of justice, by prejudicing the ability of Mr Smirnios to defend the claim against him in the Supreme Court.
For those reasons, I reject the third basis upon which the plaintiff has sought to review the decision of the Commissioner. I do not consider that the Commissioner erred in characterising the letter of complaint by Wisewoulds as involving a disciplinary complaint.
Issue No. 4: Notice of complaint under s.4.2.8 of the Legal Profession Practice Act 2004
The fourth basis of review relied on by the plaintiff is that the letter by the Commissioner to the plaintiff dated 10 July 2004, purporting to notify him of the complaint, failed to comply with the requirements of s.4.2.8 of the Act. In particular, Mr Berglund submitted that the Commissioner’s letter to the plaintiff dated 10 July 2005 failed to comply with sub-s.(2)(b) which requires the Commissioner to notify the practitioner of “details of the nature of the complaint” against the practitioner.
Mr Berglund submitted that the Commissioner must do more than provide to the practitioner the same details of the conduct contained in the complaint made to the Commissioner. In particular he submitted that the Commissioner, under s.4.2.8(2)(b) was required to, but did not, designate the complaint as either a civil or disciplinary complaint (or, presumably, as both).
The letter by the Commissioner to the plaintiff was in the following terms:
“Dear Mr Byrne,
Complaint by Wisewoulds OBO Mr Peter Smirnios
Pursuant to s.4.2.8 of the Legal Profession Act 2004 (‘the Act’) I am writing to notify you that I have received a complaint from Wisewoulds on behalf of Mr Peter Smirnios made against you which involves disciplinary issues. As I am required to give you details of this complaint, I enclose a copy (without attachments) for your information.
Pursuant to s.4.4.9 of the Act I have referred the disciplinary complaint raised by this matter to the Law Institute of Victoria Limited being a prescribed investigatory body for the purposes of the Act. That body is required to investigate the complaint and report to me on its progress. At the completion of the investigation I will make a determination in respect of the disciplinary complaint in accordance with the Act … “.
Mr Berglund submitted that there is a distinction between the requirement, in s.4.2.6(2)(d), that a complaint to the Commissioner must include “details of the conduct complained about”, and the requirement in s.4.2.8(2)(b) that the notice from the Commissioner to the practitioner must include “details of the nature of the complaint”. He submitted that while the letter of the Commissioner, by forwarding the letter from Wisewoulds to the plaintiff, might have provided to the plaintiff “details of the conduct” complained about, it failed to comply with s.4.2.8(2)(b) by providing details of the “nature” of the complaint.
In this context it is important to bear in mind the purpose of s.4.2.8(2)(b). Section 4.2.8(1) requires the Commissioner to give the practitioner notice “as soon as practicable” after the complaint is made. The practitioner is not required to do anything in response to the notice. Indeed, it is not necessary, at that stage, for the Commissioner to have commenced any investigation in relation to the complaint. Thus a notice under s.4.2.8 is provided to the practitioner at a very early stage of the processing of a complaint. The notice does not affect, in any way, the rights of the practitioner. The clear purpose of s.4.2.8 is simply to ensure that the practitioner receive timely notice of the fact and nature of the complaint.
The letter of the Commissioner to the plaintiff, standing alone, does not contain details of the nature of the complaint made against the plaintiff. However the letter attached a copy of Wisewoulds’ letter to the Commissioner. Clearly, in some cases, a letter of complaint may not only include “details of the conduct complained about”, but may also adequately indicate the nature of the complaint made in the letter. Mr Berglund conceded that this must be so. For example, in an appropriate case, a letter of complaint to the Commissioner may set out, in narrative form, the conduct complained about, and then, in plain terms, specify the nature of the complaint made about the conduct of the practitioner. In those circumstances, it would be sufficient compliance with s.4.2.8(2)(b) for the Commissioner to give notice to the practitioner by including a copy of such a complaint in the notice to the Commissioner.
The question is whether the letter of Wisewoulds contained, not only details of the conduct complained about, but also details of the nature of the complaint by Wisewoulds against the plaintiff. As I have stated, the letter of Wisewoulds commenced by describing the type of conduct complained about. In particular, in paragraph 1(viii) of the letter, it expressly alleged that “communication between Wisewoulds and Mr Byrne has been marred by Mr Byrne’s manner, method of communication and irrational behaviour.” In the next sub‑paragraph the letter alleged that notwithstanding that Wisewoulds had received from the plaintiff “a barrage of correspondence, including a bill of costs for Mr Smirnios’ attention”, the plaintiff had not provided to Wisewoulds a copy of the requested fee agreement. It alleged that the plaintiff, while claiming a lien over the file, had not provided Wisewoulds with a copy of the fee agreement, “or any information as to why he believes he has a right to claim a lien.” In paragraph 2.1 the letter stated that Mr Marsh told the plaintiff that Wisewoulds would be acting on the basis that it would only charge fees if Mr Smirnios succeeded in his defence of the Supreme Court proceedings. The plaintiff allegedly responded by enquiring why Mr Smirnios had changed solicitors given that the plaintiff had the same agreement with Mr Smirnios. It is then alleged that the plaintiff called Mr Smirnios a “fool” and a “peasant”. The letter states that Mr Marsh asked for a copy of the fee agreement, stating that it was difficult to understand how a lien could be claimed over the file, if the plaintiff’s claim for fees was dependent on a successful defence of the proceedings. The letter then set out at length the history of the correspondence between the parties in which four requests were made for a copy of the agreement, and no response was made, either closing that document, or explaining why such a document was not provided by the plaintiff. Finally, as I have already set out,[16] the three substantive concluding paragraphs of the letter summarised the gist of the complaint by Wisewoulds.
[16]Above at [46].
The foregoing summary of the Wisewoulds letter is sufficient to demonstrate that, on its face, the letter contained, not only details of the conduct complained about, but also a clear articulation of the nature of the complaint made by Wisewoulds against the plaintiff. On the face of the letter, Wisewoulds was complaining that the plaintiff had failed, without giving any reasonable explanation, to respond to four written requests for the fee agreement, which was the basis of the right of the plaintiff to claim costs against Mr Smirnios and thus to assert a lien over the file. The letter also complained that the plaintiff’s conduct, in communications between the two solicitors relating to that matter, had been unprofessional and obstructive. In my view the nature of the complaint by Wisewoulds is evident on the face of the letter sent by Wisewoulds to the Law Institute, which was as an attachment to the Commissioner’s letter to the plaintiff dated of 10 July 2006. Thus, I consider that the Commissioner’s letter provide adequate details of the nature of the complaint to the plaintiff, and thus complied with s.4.2.8(2)(b).
Mr Berglund also submitted that the Commissioner’s notice to the plaintiff was inadequate because it failed to forward to the plaintiff the attachments to the letter of Wisewoulds to the Law Institute. However, each of the attachments to the Wisewoulds letter were described in that letter. They comprised correspondence passing between Wisewoulds and the plaintiff. It might fairly be expected that the plaintiff himself had possession of those documents. In any event, without reference to the attachments, the letter of Wisewoulds makes sufficiently plain, not only the details of the conduct complained about, but also the nature of the complaint.
For those reasons I consider that the letter of the Commissioner to the plaintiff dated 10 July 2006 did comply with s.4.2.8 of the Act. Thus I reject the fourth basis upon which the plaintiff has sought to review the decision of the Commissioner to investigate the conduct of the plaintiff as involving a disciplinary complaint.
Remedies if plaintiff had succeeded
For the foregoing reasons, I reject each of the four bases upon which the plaintiff has sought to review the decision of the Commissioner to investigate the matters contained in the letter of Wisewoulds of 27 June 2006 as a disciplinary complaint. That conclusion makes it unnecessary for me to consider one further issue, namely, the nature of the relief to which the plaintiff would have been entitled had any of those bases succeeded. Mr Berglund submitted that if I upheld any of the bases relied upon by him, then the plaintiff would be entitled to orders in the nature of certiorari and prohibition, and also to declarations. On the other hand, it was contended on behalf of the defendants that the decision, which the plaintiff has sought to impugn, is not a decision which is amenable to relief in the nature of certiorari and prohibition. Further and in any event counsel for both defendants informed me that, if I were to uphold any of the bases for review relied on by the plaintiff, the defendants would respect my decision, and would act accordingly, without the Court intervening by providing relief in the nature of certiorari and prohibition. Nevertheless, and although it is not necessary for me to decide, the question was argued before me. It is appropriate that I express my conclusions on it, albeit briefly.
The writs of prohibition and certiorari originated as the means by which the Curia Regis (and subsequently the Court of Kings Bench) kept inferior courts and tribunals within their jurisdiction. The circumstances in which those writs were available were defined in the frequently quoted dictum of Atkin LJ in R v Electricity Commissioners; ex parte London Electricity Joint Committee Co (1920) Ltd:[17]
“Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the Kings Bench Division exercised in these writs.”
[17][1924] 1 KB 171 at 205.
During the last eighty years the courts have broadened the description of the bodies and persons who are subject to the supervisory jurisdiction of superior courts by exercise of the prerogative remedies. The high water mark of that process is the speech of Lord Reid in Ridge v Baldwin.[18] It is now recognised that relief in the form of certiorari, prohibition, mandamus and quo warranto is available in respect of any determination of a statutory tribunal or other body of persons which has the legal authority to determine questions affecting the common law or statutory rights or obligations of persons or individuals.[19] Nonetheless, and notwithstanding the growth of the ambit of the determinations to which such relief is available, those determinations must be decisions which affect, destroy or defeat a person’s rights, interests or legitimate expectations. Some decisions of an authority or body may be preliminary to the making of a relevant determination. Those decisions may have an important effect on matters of procedure to be used in embarking on the ultimate determination. However those decisions do not necessarily fall within the ambit of the relief formerly afforded by the prerogative writs (and now available under Rule 56), because they do not, of their own force, prejudicially affect the rights, interests or legitimate expectations of a person.[20] Thus, in general, decisions which are essentially procedural and not substantive are not amenable to relief by way of prerogative writ.[21]
[18][1964] AC 40, especially at 74-79.
[19]See for example O’Reilly v Mackman [1983] 2 AC 237 at 279 (Lord Diplock); Craig v State of South Australia (1995) 184 CLR 163 at 175; Annetts v McCann (1990) 170 CLR 596 at 598 (Mason CJ, Deane and McHugh JJ).
[20]Testro Brothers Pty Ltd v Tait (1963) 109 CLR 353 at 363 (McTiernan, Taylor and Owen JJ).
[21]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337-8 (Mason CJ).
The decision by the Commissioner to treat the complaint by Wisewoulds as involving a disciplinary complaint was necessarily a decision made at the commencement of the investigative process. Mr Berglund has submitted that important consequences flow depending whether a complaint is treated as a disciplinary complaint or a civil complaint. In particular there are various procedures prescribed by Part 4.3 in relation to dealing with civil complaints which do not apply to procedures prescribed in Part 4.4 in respect of disciplinary complaints, and vice versa. Some of the procedures prescribed in Part 4.3 involve the imposition of obligations on a complainant (for example the obligation to lodge the unpaid amount of the disputed legal costs with the Commissioner unless the Commissioner otherwise determines), which are not imposed on a complainant in respect of a disciplinary complaint under Part 4.4. Nonetheless the decision by the Commissioner to categorise the complaint as a disciplinary complaint was, in my view, essentially procedural and not substantive, and would not be amendable to relief in the form of certiorari, prohibition, mandamus or quo warranto. The decision was made at an early stage, and before commencement of the investigative processes under the Act. The making of that decision could be aptly described as a sifting process. At that stage the complaint is categorised for the purpose of activating various procedural steps which are necessary for the investigation and disposition of the complaint. Such a decision is not, I consider, a decision which might be made the subject of review by relief in the nature of certiorari or prohibition.
That conclusion is, I consider, reinforced by the judgment of Gillard J in Byrne v Law Institute of Victoria Pty Ltd.[22] That case involved a complaint concerning the plaintiff practitioner to the Law Institute under the Legal Practice Act 1996. Section 151(3) of that Act was in similar terms to s.4.4.13 of the 2004 Act. The Law Institute, after investigating the complaint, had found that there was a reasonable likelihood that the tribunal would find the plaintiff guilty of unsatisfactory conduct, but took no further action against the practitioner. The practitioner applied to the Supreme Court to review that decision. Gillard J held that the decision of the Law Institute was a decision to which relief in the nature of certiorari applied. In the course of reaching that conclusion his Honour stated as follows:
[22][2005] VSC 509.
“70.Judicial review is concerned with the decision-making process. Was the process exercised in accordance with the authority which established it, in this case the Act in accordance with the law and in accordance with the principles of natural justice?
71.Upon conclusion of an investigation of a complaint the next step is a decision. Whether or not natural justice applies depends on all the circumstances. Where a preliminary filtering procedure is to be performed such as whether or not the complaint is one of substance and what should be done thereafter it is arguable that the rules of natural justice would not apply. There is a preliminary filtering process under the Act and the allegations made were not dismissed as lacking substance.
72.It follows that investigation must be performed and findings made and then the next step is the decision as to what to do.
…
74.In other words the investigation is completed, findings are made and a decision is made against the legal practitioner which has adverse consequences. … I have no doubt at all that the investigation and decision-making steps require compliance with the rules of natural justice.”[23]
[23]Paras [70] – [75].
Accordingly if the plaintiff’s submissions had succeeded on any of the four bases relied on by Mr Berglund, I would have considered that the decision of the Commissioner thus impugned would not have been amendable to relief in the form of certiorari or prohibition. However, and in any event, in those circumstances, for the reasons I have already explained, it would have been sufficient for me to grant a declaration.
Conclusion
In conclusion, none of the four bases of review relied on by the plaintiff have succeeded. It follows that the originating motion should be dismissed. I will hear counsel on the question of costs.
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