Cahill v Victorian Legal Services Commissioner
[2017] VSC 177
•7 April 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 02294
| FRANCIS CAHILL | Applicant |
| v | |
| MICHAEL KEITH McGARVIE IN HIS CAPACITY AS VICTORIAN LEGAL SERVICES COMMISSIONER | Respondent |
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JUDGE: | Keogh J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 September 2016 | |
DATE OF JUDGMENT: | 7 April 2017 | |
CASE MAY BE CITED AS: | Cahill v Victorian Legal Services Commissioner | |
MEDIUM NEUTRAL CITATION: | [2017] VSC 177 | First revision: 19 April 2017 |
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PRACTICE AND PROCEDURE – Judicial review – Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 – Extension of time within which to commence proceeding – Special circumstances required – Lazarevic v Victoria Police [2014] VSC 497 – Extension of time granted.
ADMINISTRATIVE LAW – Judicial review – Where the applicant applies for judicial review of decisions of the respondent made pursuant to the Legal Profession Act 2004 (Vic) (‘LPA’) – Where disciplinary complaint made against applicant was dismissed by the respondent pursuant to s 4.2.10(1)(f) of the LPA – Effect of dismissal – Whether the respondent has power to continue the complaint and investigation at a later date – Whether decision to dismiss the complaint was revoked by the respondent pursuant to s 41A of the Interpretation of Legislation Act 1984 (Vic) – Whether the respondent has power to apply to the Victorian Civil and Administrative Tribunal to have the applicant dealt with on charges of professional misconduct – Legal Profession Act 2004 (Vic) ss 4.2.10, 4.4.7, 4.4.8 and 4.4.13.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr K Hanscombe QC with Mr D Oldfield | Altius Partners |
| For the Respondent | Ms R J Sharp | Victorian Legal Services Commissioner |
HIS HONOUR:
Introduction
For a period of time in 2010 and 2011 the plaintiff, Mr Cahill, was engaged as a lawyer acting for Ms Jing Li. At that time, Mr Cahill was a principal of the law practice Hambros & Cahill Lawyers. On 7 March 2011, Ms Li gave Mr Cahill a cheque for $300,000, which was paid into the Hambros & Cahill trust account at her request.
On 15 October 2012 Ms Li made a complaint to the defendant, Michael Keith McGarvie, in his capacity as Legal Services Commissioner, under s 4.2.1 of the Legal Profession Act 2004 (the ‘LPA’), in relation to Mr Cahill’s conduct in dealing with the trust funds. On 21 December 2012 Ms Li issued a County Court proceeding against Mr Cahill, among others, claiming damages in relation to the handling of the trust funds. The complaint was then ‘dismissed’ by the Commissioner on 6 February 2013. The County Court proceeding was dismissed by consent on 22 August 2013. On either 23 August 2013 or 7 October 2013 the Commissioner decided to continue the complaint and the investigation (the ‘first decision’). On 30 June 2015 the Commissioner decided to make application to VCAT pursuant to s 4.4.13 of the LPA for Mr Cahill to be dealt with on four charges of professional misconduct arising out of the complaint (the ‘second decision’).
In this proceeding Mr Cahill applies for review of the first and second decisions pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). He argues that once the complaint was dismissed the Commissioner was functus officio and had no power to continue the complaint and investigation or to make the VCAT application. On that basis Mr Cahill seeks orders quashing each decision and prohibiting the Commissioner from continuing the VCAT application. The grounds upon which relief is sought are:
1.The First Defendant fell into jurisdictional error in purporting to continue the investigation of the Complaint after he had dismissed it.
Particulars
The [LPA] does not provide power to the First Defendant to investigate or continue to investigate a complaint which he has summarily dismissed pursuant to section 4.2.10(1)(f) of [the LPA].
2.In the alternative to paragraph 1 above, the First Defendant fell into jurisdictional error in treating a dismissed complaint as a new complaint.
Particulars
The Act does not provide power to treat a complaint which he has summarily dismissed pursuant to section 4.2.10(1)(f) of [the LPA] as a new complaint.
3.Once he had dismissed the Complaint pursuant to section 4.2.10(1)(f) of [the LPA], the First Defendant was functus officio in relation to the Complaint.
4.The First Defendant fell into further jurisdictional error in applying to the Victorian Civil and Administrative Tribunal (VCAT) for orders under Division 4 of Part 4.4 of the [LPA] against the Plaintiff in relation to the Complaint or its subject matter.
Particulars
The First Defendant has power under the Act to apply to VCAT for orders only as provided by section 4.4.13 of the [LPA]. Having summarily dismissed the Complaint, the First Defendant, being functus officio in relation to the Complaint, did not have the power to take any further action against the Plaintiff in relation to the Complaint, including any action pursuant to section 4.4.13(2) of the [LPA], as he had purported to do by his Further Amended Application for Orders dated 26 April 2016, VCAT proceeding no J89 of 2015 (the VCAT proceedings).
5.Unless prohibited, the First Defendant proposes to continue to conduct the VCAT proceedings.
Particulars
The VCAT proceeding is listed for hearing commencing 5 July 2016.
Pursuant to r 56.02, Mr Cahill had 60 days from the date of each decision to commence the proceeding. Mr Cahill applies for extension of the period within which to commence the proceeding.
At the hearing Mr Cahill made application to tender an affidavit exhibiting part of the 2013 Annual Report of the Commissioner. The purpose of the evidence was to establish that the Commissioner treated the complaint as having been dismissed. The affidavit was filed late. The Commissioner had limited opportunity to respond to it. The tables from the Annual Report make no reference to this complaint, or any specific complaint, but simply provide data and analysis as to how complaints were dealt with by the Commissioner in that year. The evidence is of negligible utility. I will not admit the affidavit into evidence.
What happened?
It is agreed that during 2010 and 2011 Mr Cahill was engaged by Ms Li to act as her lawyer. On 7 March 2011 Ms Li gave to Mr Cahill a cheque for $300,000, which was paid into the Hambros & Cahill trust account. A statement of trust money exhibited to Mr Cahill’s first affidavit shows that $100,000 of the trust funds was transferred to the office account of Hambros & Cahill in payment of two bills of costs, and that the remaining sum of $200,000 was transferred from trust on 21 March 2011 with the following notation of particulars:
To BH Accounting Solutions Pty Ltd as per your instructions for business investment.
In the complaint Ms Li says that she gave Mr Cahill the cheque for $300,000 to be paid into the trust account of Hambros & Cahill with the intention that those funds be invested as recommended by Mr Cahill. It is implicit from the complaint that Ms Li does not agree that she authorised the use of $100,000 of the trust funds to pay the two bills of costs.
In the complaint under the heading ‘Details of your complaint’ in response to the question ‘What do you hope to achieve by making this complaint?’, Ms Li wrote:
For the lawyer to respond to my question, release the paperwork and to return the full amount of the money I gave him $300,000.
In response to the request in the complaint ‘Please tell us about the matter’, Ms Li wrote:
In February 2011 I told Frank (Francis Cahill) of Hambros & Cahill Lawyers that I have amount of $300,000 from my relative that I’d like to put in some safe investment, he suggested he has some safe investment strategy that has been proved to have a high return in the past, never lost before. He claimed he’s been using the same strategy for himself and his customers. He never told me what kind of investment it was only that he will look after everything. Because he was introduced to me first by a good friend of mine. I totally trusted him. Also because he’s a lawyer and claimed he’s very experienced in handling investment.
On 07/03/2011, I gave Frank a bank cheque of $300,000 to put in the trust account of Hambros & Cahill Lawyers. He only gave me a receipt that day.
Ms Li then continued by describing her further interactions with Mr Cahill attempting to obtain information in relation to the $300,000 deposited in the Hambros & Cahill trust account.
On 18 October 2012 the Commissioner wrote to Mr Cahill giving him notice of the complaint under s 4.2.8 of the LPA. In part, the letter reads:
Ms Li has raised the following concerns:
1.You have not accounted to her for the $300,000 she invested with you on 7 March 2011.
2.You have failed to respond in any meaningful way to her requests for information relating to the investment and its performance since around March 2012, other than to advise that it was to be held for a fix term of 18 months with penalties applying for early withdrawal. She was not advised of this previously.
3.You advised her you had appointed a ‘professional’ to manage her investment. She has been unable to obtain any meaningful information about her investment from this person.
I will now explain how I propose to deal with this complaint.
The Commissioner determined the complaint should be dealt with as a disciplinary complaint, commenced investigation as required by s 4.4.7 of the LPA, and made a request of Mr Cahill for information and documentation pursuant to s 4.4.11(1).
On 21 December 2012, before the investigation was completed, Ms Li commenced the County Court proceeding naming Hambros & Cahill, Mr Cahill and three others as defendants. In that proceeding Ms Li claimed damages and other associated relief in relation to the $300,000 paid into the Hambros & Cahill trust account on 7 March 2011.
On 6 February 2013 an internal memorandum was prepared within the office of the Commissioner by the investigating officer with apparent control of the complaint and the investigation. The internal memorandum referred to the complaint, the investigation and to the County Court proceeding. It was noted that the issues in the County Court proceeding were identical to the complaint ‘… in that Ms Li seeks return of her money that she says was provided to Mr Cahill for investment purposes.’ The memorandum concluded with a recommendation by the investigating officer that the complaint be dismissed pursuant to s 4.2.10(1)(f) of the LPA. A delegate of the Commissioner indicated that she agreed with the memorandum, signed it, and dated her signature 6 February 2013. On the same date the delegate signed letters directed to Ms Li and Mr Cahill communicating the decision to dismiss the complaint.
On 22 August 2013 the following order was made by consent in the County Court proceeding:
The proceeding is dismissed with no order as to costs.
On 23 August 2013 the investigating officer sent an email to Mr Cahill advising him that the County Court proceeding had been ‘discontinued’ and that the complaint would now be ‘re-raised’. On 7 October 2013 a delegate of the Commissioner wrote to Mr Cahill, stating:
… I confirm that Ms Li has requested my office to continue the investigation of her complaint about you that was previously closed on 6 February 2013. Please take this letter as written notice under s 4.2.8 of the [LPA]. As you have already been provided with a copy of Ms Li’s complaint I do not enclose a further copy now, but I will provide a further copy if you wish.
…A new complaint file has been opened…
The letter included further requests made by the Commissioner of Mr Cahill pursuant to s 4.4.11(1) of the LPA. The Commissioner took further steps in investigation of the complaint. By letter dated 12 November 2014 the Commissioner told Mr Cahill that the investigation was close to being finalised, and that once the investigation was complete the Commissioner was required to make a decision under s 4.4.13 of the LPA. The letter detailed the investigation to that date and invited Mr Cahill to respond to that detail. By letter to the Commissioner dated 13 February 2015 Mr Cahill responded to the detail of the investigation as invited.
On 30 June 2015 the Commissioner filed the VCAT application. The hearing of the VCAT application has been adjourned pending resolution of this proceeding.
On 26 April 2016, in the course of an appearance at VCAT in relation to the application, counsel representing Mr Cahill made a call for production of documents relevant to the letter from the Commissioner to Mr Cahill of 6 February 2013. Documents were produced by the Commissioner to Mr Cahill in response to that call on 4 May 2016. The documents produced included the internal memorandum of the Commissioner of 6 February 2013.
Should time to commence the proceeding be extended pursuant to r 56.02(3) of the Rules?
Rule 56.02 provides:
(1)A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.
…
(3)The Court shall not extend the time fixed by paragraph (1) except in special circumstances.
The first decision was made on 23 August 2013, and the second decision on 30 June 2015. This proceeding was commenced on 15 June 2016.
The parties agree on the principles which apply to the application by Mr Cahill to extend time within which to commence this proceeding. Both parties referred in submissions to the judgment of Derham AsJ in Lazarevic v Victoria Police,[1] in which the relevant principles are succinctly stated by his Honour as follows:
[1][2014] VSC 497 (3 October 2014) [35]–[36] (citations omitted).
The authorities establish that:
(a)The rule requires the Court to be objectively satisfied that special circumstances exist;
(b)The existence of special circumstances is to be determined by reference to all the circumstances of a case;
(c)The factors relevant to the exercise of the discretion under Rule 56.03(2) include, but are not limited to:
(i) the period of the delay;
(ii) the reason for the delay;
(iii) whether the plaintiff has an arguable case;
(iv)the justice to both parties, including the prejudice to the parties; and
(v) the public interest in the finality of litigation.
It is important to be aware of the way in which an arguable case, or a case that is not arguable, may be taken into account. The fact that the plaintiff may demonstrate an error below, or other grounds for judicial review, does not automatically result in there being ‘special circumstances’, for if that were so there would be little practical point to the time limit contained in the Rule. On the other hand, where it is clear that a plaintiff’s grounds are not arguable, or he has no real prospects of success, there will ordinarily be no point in extending the time and therefore no special circumstances exist.
Mr Cahill submitted first, that, if time to commence the proceeding is not extended and the VCAT application is successfully prosecuted, the VCAT orders are likely to be reviewable on the same grounds as in the current proceeding in this court, either pursuant to Order 56, or on a question of law under s 148 of the VCAT Act. If that occurred, and Mr Cahill is correct that the basis of the VCAT application is fundamentally flawed as he contends, then a great deal of time and money will have been wasted by refusing the application to extend time. Allowing the current application to proceed therefore serves the public interest in the efficiency and finality of litigation.
Second, it was submitted that Mr Cahill has a strongly arguable case on the merits, and that whether the Commissioner has the power, once a complaint is dismissed pursuant to s 4.2.10(1)(f) of the LPA, to continue the complaint or treat it as a new complaint, has not previously been determined. Although the LPA has now been repealed, a decision by this court on that issue will be relevant to the construction of the similarly worded s 277(1)(h) of Schedule 1 of the Legal Profession Uniform Law Application Act 2014 (the ‘new Act’), and as a consequence there is utility in the point being determined.
Two further points were made by counsel for Mr Cahill in written submissions. Namely, that the manner in which the first defendant communicated the decisions contributed to the delay; and that Mr Cahill was not aware that the decisions may be affected by reviewable error. These points were not strongly pressed during oral submissions.
The Commissioner submitted, first, that the length of the delay weighs against granting the application to extend time. Second, that Mr Cahill was represented during much of the period, is himself a lawyer, and ignorance is not a satisfactory explanation for delay. Third, Mr Cahill’s case is weak and, given repeal of the LPA, there is no utility in extending time. Fourth, justice to the parties and to Ms Li weighs in favour of allowing the charges which are the subject of the VCAT application to be resolved at the first opportunity. Finally, where the primary purpose of disciplinary proceedings such as the VCAT application is protection of the public, there is a public interest in finalising the charges.
Analysis
The extent of the delay, which was significant, weighs against the extension being granted. Mr Cahill’s ignorance of his right to bring this proceeding does not weigh in his favour, particularly given that he is a lawyer, and that for much of the period he was legally represented. On the other hand it cannot be said that Mr Cahill sat on his hands and simply allowed time to pass. From the moment the Commissioner sought to continue the complaint, Mr Cahill took steps to protect his rights in respect of the complaint.
The interests of justice are not served by allowing the VCAT proceeding to continue if the decisions which are the basis of that proceeding are infected by error. Mr Cahill would be exposed to a prosecution which has no proper basis.
The VCAT application, which has now been adjourned pending resolution of this proceeding, was previously listed for hearing over four days. The preparation and conduct of the hearing at VCAT would involve significant time and cost. If the application to extend time is granted and Mr Cahill succeeds on the grounds set out in the originating motion then the VCAT application will not proceed. If, on the other hand, the extension application is refused and the VCAT application is successfully prosecuted, Mr Cahill is likely to appeal or review the VCAT orders on the same grounds as in the current proceeding. This would result in wasted time and cost associated both with prosecution of the VCAT application and any subsequent application for review or appeal. During oral submissions it was accepted for the Commissioner that it is likely Mr Cahill could appeal or review any adverse VCAT orders on the same basis as the grounds of the originating motion and that this raised issues of efficiency which are relevant to determination of the extension application. I agree with the submissions of Mr Cahill that the public interest in the efficient conduct of litigation and the finality of litigation are, in the circumstances of this proceeding, best served by allowing the application to extend time to commence the proceeding.
For reasons which appear later in this judgment, I have determined that the grounds for review relied on by Mr Cahill have merit.
Taking account of these factors and the circumstances of the case, I conclude that special circumstances exist which justify extending time to commence the proceeding to 15 June 2016, being the date on which the originating motion was issued.
Relevant legislative provisions
Chapter 4 of the LPA deals with complaints about members of the legal profession and provides a scheme for the discipline of the legal profession. The complaint by Ms Li was made pursuant to Part 4.2 of Chapter 4. Pursuant to s 4.2.8, the Commissioner must give notice of the complaint as soon as practicable after the complaint is made. The power to summarily dismiss complaints is contained in s 4.2.10, which provides:
Summary dismissal of complaints
(1) The Commissioner may dismiss a complaint if—
(a)further details are not given, or the details of the complaint or further details are not verified, as required by the Commissioner under section 4.2.9; or
(b)the complaint is vexatious, misconceived, frivolous or lacking in substance; or
(c)the conduct complained about has been the subject of a previous complaint that has been dismissed; or
(d)the conduct complained about is the subject of another complaint; or
(e)the complaint is not one that the Commissioner has power to deal with; or
(f)in the case of a disciplinary complaint, the Commissioner, having considered the complaint, forms the view that—
(i)it is not in the public interest to investigate the complaint because the subject of the complaint is an Australian legal practitioner whose name has been removed from the local roll; or
(ii) the complaint requires no further investigation.
(2)If the Commissioner dismisses a complaint under this section, he or she must give the complainant a written notice of the dismissal including the reasons for the dismissal.
…
The Commissioner treated the complaint as a disciplinary complaint. A requirement to investigate a disciplinary complaint is imposed on the Commissioner by s 4.4.7 which provides:
Disciplinary complaints to be investigated
(1)The Commissioner is required to investigate each disciplinary complaint.
(2) This section does not apply to—
(a)a complaint referred to a prescribed investigatory body under section 4.4.9; or
(b)a complaint taken over or referred to a corresponding authority; or
(c)a complaint that is dismissed under Part 4.2 or withdrawn.
(3)Nothing in this section prevents the Commissioner from investigating or further investigating a complaint referred to a prescribed investigatory body.
The purpose of the investigation is to consider whether the conduct of the legal practitioner who is the subject of the complaint amounts to either unsatisfactory professional conduct or professional misconduct as defined in the LPA.
The course to be followed once an investigation is completed is determined by s 4.4.13 of the LPA which provides:
What happens after an investigation is completed?
(1)After an investigation has been completed under this Division, the Commissioner must deal with the matter in accordance with this section.
(2)The Commissioner must apply to the Tribunal for an order under Division 4 in respect of the Australian legal practitioner the subject of the investigation if the Commissioner is satisfied that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of professional misconduct.
(5)If the Commissioner is satisfied that there is no reasonable likelihood that the Tribunal would find the practitioner guilty of professional misconduct or unsatisfactory professional conduct, the Commissioner must take no further action against the practitioner.
…
Grounds 1, 2 and 3
Submissions
Mr Cahill submitted first that the Commissioner was, at the relevant time, a statutory body established under Part 6.3 of the LPA and that the power of the Commissioner to make decisions and to do things was confined by the provisions of the LPA. Second, once the Commissioner dismissed a complaint, he was functus officio. There is nothing in the LPA which suggests otherwise. The authorities establish a general rule that a statutory body cannot revisit its own decision simply because it changes its mind or recognises error or mistake in the decision.[2]
[2]The plaintiff relied on the decisions in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 603; Semunigus v Minister for Immigration (2000) 96 FCR 533, 540 [55]; Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301 (20 December 2016) [48] (Nettle JA) (‘Kabourakis’).
Third, a purposive construction of the LPA demonstrates that once the Commissioner invokes the power to dismiss a complaint pursuant to s 4.2.10 that decision is final and binding. Such a construction promotes the objectives of certainty and finality which are necessary aspects of the exercise of supervisory powers provided to the Commissioner by the LPA. Fourth, the complaint was in fact summarily dismissed by the Commissioner on 6 February 2013, and it was then functus officio. The decision to continue the complaint, or to treat it as a new complaint, and proceed with the investigation, was beyond power and is therefore affected by jurisdictional error.
The Commissioner submitted that, upon receipt of a complaint, it was necessary to consider whether the complaint was a civil complaint to be dealt with under Part 4.3 of the LPA, a disciplinary complaint to be dealt with under Part 4.4 of the LPA, or a complaint which should be summarily dismissed pursuant to s 4.2.10 of the LPA. This was a preliminary decision made at the outset before investigation commenced.[3] Prior to 6 February 2013 the Commissioner determined that the complaint was a disciplinary complaint and commenced investigation pursuant to s 4.4.7. Once the Commissioner determined that the complaint was a disciplinary complaint and commenced investigation of the complaint, the Commissioner had no power to deal with the complaint other than to complete the investigation and then to take steps in accordance with s 4.4.13 of the LPA. Therefore, the letter of 6 February 2013 did not complete the investigation. Second, following the making of the complaint on 15 October 2012, the Commissioner commenced an investigation. Section 4.2.10 dealt with complaints only and did not empower the Commissioner to summarily dismiss an investigation. Alternatively, even if it did, a requirement of dismissing the complaint and investigation pursuant to s 4.2.10(1)(f) was not met because there was no evidence that the Commissioner formed the view that the complaint required no further investigation. Therefore, the letter of 6 February 2013 was of no effect on the investigation.
[3]The Commissioner relied on Byrne v Marles & Anor (2008) 19 VR 612 and Byrne v Legal Services Commissioner [2009] VSC 210 (29 May 2009), both of which related to decisions of the Commissioner to stream a complaint as civil or disciplinary.
In relation to these two submissions Mr Cahill responded as follows. First, the submission of the Commissioner was contrary to the natural and ordinary meaning of s 4.4.7(2)(c), which provides that the requirement to investigate a complaint does not apply to a complaint dismissed under Part 4.2 of the LPA. Second, the Commissioner’s submission is contrary to the natural and ordinary meaning of s 4.2.10(1)(f), which contemplates that an investigation may have been commenced at the time the complaint is dismissed. Third, the submission of the Commissioner would lead to an absurd outcome whereby he would be required to continue to investigate complaints which he had determined did not require further investigation. A construction that produces an unreasonable, irrational or capricious outcome should be avoided.[4] Fourth, reliance placed by the Commissioner on the decisions in Byrne v Marles & Anor[5] and Byrne v Legal Services Commissioner[6] is misconceived because the cases relate to an entirely different issue, that is, the preliminary assessment of whether the complaint is in the civil stream or the disciplinary stream. Fifth, to the extent that the Commissioner’s submission depends upon a distinction being drawn between a complaint and an investigation, the distinction is illusory and not supported by the statutory text. The complaint is a precondition to an investigation. If the complaint is dismissed, the power to investigate under s 4.4.7 must also fall away. Finally, the submission that the conditions to exercise the power to dismiss had not been fulfilled because the Commissioner had not formed the view that the complaint required no further investigation was based on hindsight reasoning and not on the evidence of any relevant witness, and should be rejected.
[4]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 321 (Mason and Wilson JJ).
[5](2008) 19 VR 612.
[6][2009] VSC 210 (29 May 2009).
Next, the Commissioner submitted that even if the letter of 6 February summarily dismissed the complaint and the investigation, the decision to dismiss was revoked pursuant to the power in s 41A of the Interpretation of Legislation Act 1984 (the ‘Interpretation Act’). Alternatively, on 7 October 2013, the Commissioner commenced a second investigation on the basis of the complaint. In response to this submission, Mr Cahill argued first that s 41A of the Interpretation Act deals with a power to rescind or revoke an instrument. In the present case, the Commissioner was exercising a statutory power provided by s 4.2.10(1) of the LPA, and was not making, issuing or granting an instrument. Therefore s 41A of the Interpretation Act was inapposite. Second, the LPA did not empower the Commissioner to commence a second investigation of the same conduct which was the basis of the complaint. Absent some fresh material, to do so would be an abuse of process. Third, the Commissioner did not in fact receive a new complaint.
Finally, the Commissioner submitted that dismissal of a complaint pursuant to s 4.2.10(1) of the LPA has no effect on the power of the Commissioner to investigate the conduct which is the subject of the complaint. For instance, the Commissioner had discretion not to dismiss a subsequent complaint even if the conduct complained of was the subject of a complaint which had previously been dismissed.[7] If a subsequent complaint was not dismissed then s 4.4.7(1) obliged the Commissioner to investigate the complaint. Alternatively, the Commissioner was empowered by s 4.4.8 to conduct an investigation of the conduct of a lawyer absent complaint. Relying on the decision of the Full Court of the Supreme Court of Tasmania in XYZ v Legal Profession Board of Tasmania,[8] the Commissioner submitted that a decision to summarily dismiss a complaint does not finally determine the complaint or the investigation, and the Commissioner is obliged to consider any further complaint which is made. In response Mr Cahill submitted, first, that investigating a complaint which has already been finally dealt with is, absent some fresh evidence, an abuse of process. Second, the Commissioner did not in fact receive a new complaint or commence an investigation without a complaint pursuant to s 4.4.8 of the LPA. Third, reliance on XYZ[9] was misplaced because the nature and quality of the decision to summarily dismiss precluded the Commissioner from then commencing or conducting further investigation; the decision had a discernible effect on Mr Cahill’s rights; and the decision was implemented.
[7]Relying on s 4.2.10(1)(c) of the LPA.
[8](2014) 23 Tas R 179 (‘XYZ’).
[9]Ibid.
Did the Commissioner dismiss the complaint?
In the internal memorandum dated 6 February 2013, the investigating officer of the Commissioner records:
The issues in [the County Court] proceedings are identical to this complaint, in that Ms Li seeks return of her money that she says was provided to Mr Cahill for investment purposes.
As it would be inappropriate for this investigation to continue whilst the matter is before the court, this matter must now be closed.
The internal memorandum makes reference to the Charter of Human Rights and Responsibilities Act 2006, and continues:
As the complaint is being dismissed the Human Rights of Mr Francis Cahill will not be adversely impacted upon. Ms Jing Li’s concerns may be dealt with elsewhere.
Recommendation
For the reasons set out above and in the accompanying letters it is recommended that the complaint be dismissed pursuant to s 4.2.10(1)(f) of the [LPA].
The recommendation to dismiss the complaint was expressed without reservation and in unambiguous terms. The delegate of the Commissioner accepted the recommendation and, by sending the notifying letters to Ms Li and Mr Cahill on the same day, implemented the decision to dismiss the complaint. The memorandum is evidence of a conclusion by the delegate that the complaint did not require further investigation because the issues it dealt with were identical to those in the County Court proceeding.
The letter of 6 February 2013 from the delegate of the Commissioner to Ms Li notified her of the decision to dismiss the complaint pursuant to s 4.2.10(1)(f). In that letter the delegate stated:
You may however wish to re-raise the complaint once court proceedings have been finalised and you may wish to raise any adverse comments or findings by the court in any new complaint.
The letter of 6 February 2013 notifying Mr Cahill that the complaint had been dismissed stated that Ms Li had been advised that once the County Court proceeding was finalised she could refer the complaint back to the Commissioner for consideration. It is not clear what the Commissioner meant by references in the notifying letters to ‘re-raising’ the complaint, ‘any new complaint’, or referring the complaint back to the Commissioner to ‘continue the investigation’. There was no evidence given by the Commissioner or the delegate to explain the letters of 6 February 2013 or the decision recorded in the memorandum. The contents of the notifying letters to Ms Li and Mr Cahill are not inconsistent with a conclusion that the Commissioner had decided to dismiss the complaint because he formed the view that it did not require further investigation.
In submissions the Commissioner focused on the letter to Mr Cahill of 6 February 2013, arguing that the letter was not a decision to complete or conclude the investigation or to dismiss the complaint. However, the letter was not the decision of the Commissioner. The letter was notice of the decision required to be given pursuant to s 4.2.10(2) of the LPA. The decision was made by the Commissioner in response to the memorandum of the investigating officer, and is recorded in the memorandum.
The Commissioner had power to dismiss the complaint once he formed ‘the view that the complaint requires no further investigation.’ There is nothing in s 4.2.10 which limited the power to dismiss to the preliminary stage before investigation commenced. The words used in s 4.2.10(1)(f) give the Commissioner power to dismiss a complaint after an investigation is underway.
By agreeing to the recommendation in the internal memorandum the Commissioner decided to dismiss the complaint pursuant to s 4.2.10(1)(f) of the LPA. The Commissioner did so because he formed the view that the complaint required no further investigation. The decision was made within power and resulted in the complaint being dismissed.
Did the Commissioner have power to continue the complaint and the investigation?
On 22 August 2013 Ms Li sent an email to the investigating officer advising that the County Court proceeding was dismissed that day and asking:
I hope that you could proceed with the investigation of my claim against Mr Cahill now.
On 23 August 2013 the investigating officer sent an email to Mr Cahill which contained the following:
Ms Li now wishes the LSC to recommence its investigation and has re-raised her complaint. As there is no longer any legal impediment to that, the matter will be re-raised.
The letter from the Commissioner to Mr Cahill of 7 October 2013 purported to give him notice of the complaint pursuant to s 4.2.8 of the LPA, and recorded:
As you have already been provided with a copy of Ms Li’s complaint I do not enclose a further copy now, but I will provide a further copy if you wish.
I note that the County Court proceedings germane to the complaint have been dismissed, therefore my office will now continue with the investigation. A new complaint file has been opened and has been given a reference number of COM-2013-1498.
In the letter the Commissioner also confirmed that investigation of the complaint now extended to the legal costs charged to Ms Li by Mr Cahill and the payment of those costs by transfer from the $300,000 held in the Hambros & Cahill trust account for Ms Li. Subsequently, in response to a number of enquiries from Mr Cahill as to the particulars of the complaint he was now facing, the Commissioner made it clear that the investigation being conducted was of the complaint originally made by Ms Li, not of any new or further complaint. When the investigation of the complaint was completed, the Commissioner made the VCAT application pursuant to s 4.4.13(2) of the LPA. The VCAT application records the complaint signed by Ms Li on 10 October 2012, investigation of that complaint and the charges of professional misconduct resulting from the complaint and the investigation. There was no evidence of a new complaint having been made against Mr Cahill which was investigated and resulted in the VCAT application. Nor is there evidence that the Commissioner decided to investigate the conduct of Mr Cahill without a complaint pursuant to s 4.4.8 of the LPA.
I conclude that on 23 August 2013 the Commissioner decided to continue investigation of the complaint made by Ms Li on 10 October 2012 and dismissed by the Commissioner on 6 February 2013.
The powers of the Commissioner are prescribed by the provisions of the LPA. The Commissioner initially received the complaint pursuant to Part 4.2 of the LPA then determined pursuant to s 4.2.11 that it was a disciplinary complaint. Investigation of the complaint was commenced as was required by s 4.4.7(1). On 6 February 2013 the Commissioner dismissed the complaint pursuant to s 4.2.10(1)(f). The effect of dismissing the complaint was to terminate it without the need for further investigation. Pursuant to s 4.4.7(2)(c) the requirement to continue to investigate the complaint did not apply once the complaint was dismissed.
There is no power in the LPA for the Commissioner to continue investigation of a complaint after the Commissioner has dismissed the complaint pursuant to s 4.2.10(1). The LPA confers no power on the Commissioner to revoke the decision which he made to dismiss the complaint.
I agree with the submission of Mr Cahill that s 41A of the Interpretation Act has no application to the circumstances of this case. The decision of the Commissioner to dismiss the complaint was not the exercise of a power to make, issue or grant an instrument. Rather the Commissioner was exercising a statutory power to take a step in relation to a complaint made to him pursuant to Part 4.2 of the LPA.
The Commissioner submitted that summary dismissal pursuant to s 4.2.10(1)(f) did not finally determine the complaint. This was so because the provisions of the LPA allowed for the possibility of a new complaint being made about conduct which was the subject of a dismissed complaint.[10] If such a complaint was not dismissed there was a requirement that it be investigated.[11] It was further submitted that the Commissioner had power to conduct an ‘own motion’ investigation pursuant to s 4.4.8 of the LPA, and that such an investigation could be conducted into the subject matter of a dismissed complaint.
[10]Section 4.2.10(1)(c).
[11]Section 4.4.7(1).
For the following reasons I conclude this submission is without merit. First, there is no evidence that a new complaint was made or that the Commissioner decided to investigate the conduct of Mr Cahill pursuant to s 4.4.8. Rather, the Commissioner decided on 23 August 2013 to continue investigation of an already dismissed complaint. Second, there was no evidence of new material which might arguably justify further investigation of the conduct which was the subject of the dismissed complaint. In the absence of new material, further investigation of that conduct of Mr Cahill would likely be an abuse of process. Third, recommencing an investigation after the complaint was dismissed and finally dealt with runs counter to the paramount considerations of finality and certainty which underlie such a supervisory system.[12]
[12]Kabourakis[2006] VSCA 301 [5] (Warren CJ), [64]–[66] (Nettle JA).
I agree with the submission of Mr Cahill that the decision in XYZ[13] does not assist the Commissioner. In XYZ[14] the Legal Profession Board of Tasmania, after investigating a complaint against a legal practitioner, decided to make application to the disciplinary tribunal to hear and determine the matter. Before it had made application to the tribunal, the Board rescinded its decision and decided instead to further investigate the complaint. Estcourt J, with whom the other members of the court agreed, determined that the board was within power in rescinding its original decision because the Acts Interpretation Act 1931 (Tas) (the ‘Interpretation Act (Tas)’) provided the statutory power to the Board to vary or reverse a decision made by it; the decision to make application to the disciplinary tribunal not determinative of rights;[15] and, the decision simply flagged an intention of the Board to make application to the tribunal. By contrast, the Commissioner does not have statutory power to rescind or revoke a decision to dismiss the complaint. Further, the quality of the decision of the Commissioner was very different to that made by the Board in XYZ.[16] The decision of the Commissioner resulted in the complaint being dismissed so that the complaint and the investigation were at an end. Third, the decision was implemented when the notifying letters were sent on the same day.
[13](2014) 23 Tas R 179.
[14]Ibid.
[15]Ibid.
[16]Ibid.
I find for Mr Cahill in relation to Grounds 1 and 3. In relation to Ground 2, I have determined that from 23 August 2013 the Commissioner acted to continue the complaint and investigation which he had previously dismissed, rather than treating the dismissed complaint as a new complaint. On that basis, I do not find for Mr Cahill in relation to Ground 2.
Did the Commissioner have power to make the VCAT application? – Grounds 4 and 5
I have concluded that:
(a) the Commissioner had power to dismiss the complaint pursuant to s 4.2.10(1)(f);
(b) the complaint was dismissed by the Commissioner on 6 February 2013;
(c) once dismissed, the complaint and the investigation were at an end; and
(d) the decision made by the Commissioner on 23 August 2013 to continue the complaint and the investigation was beyond power and therefore of no effect.
The decision of 30 June 2015 to make the VCAT application necessarily depended on the earlier decision to continue the complaint and the investigation. Pursuant to s 4.4.13 of the LPA the step of applying to VCAT can only be taken after an investigation had been completed. Because the complaint and investigation had been dismissed, and the Commissioner was functus officio, there was no power to continue the investigation to completion or to make the application to VCAT. The decisions of the Commissioner to commence and to continue the VCAT application are infected by error. I find for Mr Cahill on Grounds 4 and 5.
Conclusion
For the reasons stated, I will grant the application of Mr Cahill to extend the time to commence this proceeding to 15 June 2016. I will make orders in favour of Mr Cahill in respect of Grounds 1, 3, 4 and 5 in the originating motion. I will hear from the parties as to the form of those orders and as to any consequential matters, including costs.
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