Chen v Victorian Legal Services Commissioner
[2020] VSC 842
•14 December 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 01481
| XIAO YI CHEN aka ANNA CHEN | Appellant |
| v | |
| VICTORIAN LEGAL SERVICES COMMISSIONER | Respondent |
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| JUDGE: | Ginnane J |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 August 2020 |
| DATE OF JUDGMENT: | 14 December 2020 |
| CASE MAY BE CITED AS: | Chen v Victorian Legal Services Commissioner |
| MEDIUM NEUTRAL CITATION: | [2020] VSC 842 |
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ADMINISTRATIVE LAW – Decision of VCAT – Charges against legal practitioner of professional misconduct – Findings that legal practitioner guilty of charges – Whether an order – Whether appeal competent – Appeal not competent – Victorian Civil and Administrative Tribunal Act 1998 ss 3, 148; Legal Profession Uniform Law Application Act 2014 sch 1, s 302.
PRACTICE AND PROCEDURE – Description or title of Appellant in Notice of Appeal – Variation from description or title ordered by VCAT – Amendment of Appellant’s description or title.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M Mackinnon | Horseforce Legal |
| For the Respondent | Mr S Morris | Victorian Legal Services Commissioner |
HIS HONOUR:
In this application for leave to appeal from a decision of the Victorian Civil and Administrative Tribunal,[1] the Victorian Legal Service Commissioner (‘the Commissioner’) seeks orders that:
(a) The name of the appellant in the proceeding be amended to ‘Ms Xiao Yi Chen aka Anna Chen’.
(b) The appeal be dismissed.[2]
[1]Victorian Legal Services Commissioner v Chen (Legal Practice) [2020] VCAT 238 (’VCAT Proceeding’).
[2]Summons dated 21 May 2020.
I have used the word ‘decision’, as a neutral word, to describe the outcome of the proceedings before VCAT, because the main dispute between the parties that I have to decide is whether that outcome was an ‘order’ within the meaning of s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’).
The Judicial Registrar, in giving directions for the appeal, ordered that:
[A]ny application for summary judgment or for determination of a preliminary point be made by summons filed and served on or before 21 May 2020 with supporting affidavits and to be listed for urgent hearing upon further direction of the Court on a date to be fixed.
The Commissioner seeks orders that Ms Xiao Yi Chen’s proceeding seeking leave to appeal from a VCAT decision under s 148 of the VCAT Act be dismissed as incompetent, because the decision appealed from is not an ‘order’ as s 148 of the VCAT Act requires. The Commissioner also seeks an order that the title of the appellant be amended to ‘Ms Xiao Yi Chen aka Anna Chen’ being the name contained in VCAT’s decision. VCAT made an order adding the words ‘aka Anna Chen’ to the title of the appellant upon application by the Commissioner, who contended that the appellant carried on her practice as a lawyer under the name ‘Anna Chen’.
Background
Ms Chen is an Australian Legal Practitioner and holds a practising certificate.
On 26 February 2020, a Senior Member, having reserved his decision at the end of a hearing, published his reasons in which he found Ms Chen guilty of two charges of professional misconduct as defined in the Legal Profession Uniform Law.
The document containing the Senior Member’s reasons followed the usual practice of the initial pages containing the title of the proceeding and details such as the Senior Member’s name and the hearing dates. It then set out ‘FINDINGS’, which state:
FINDINGS
CHARGE 1
1.The Respondent is guilty of professional misconduct as defined at common law and/or within the meaning of sections 297 and/or 298 of the Legal Profession Uniform Law (LPUL) or section 4.4.3(1)(a) and/or 4.4.4 of the Legal Profession Act 2004 (2004 Act) for engaging in conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable, in that she:
(a) conferred with her client by telephone on 31 March 2015 whilst her client was a witness under cross-examination during the Trial which the Respondent knew; and
(b) whilst conferring with her client, discussed matters relating to the Trial without obtaining the consent of the cross-examiner and in circumstances where the Respondent:
A.did not have special circumstances to require such a conference;
B.had not informed the cross-examiner beforehand of the Respondent’s intention to do so; and
C.did not inform the cross-examiner as soon as possible of the Respondent having done so.
CHARGE 2
2. Charge 2 being in the alternative to Charge 1, it falls away and is dismissed.
CHARGE 7
3. The Respondent is guilty of professional misconduct as defined at common law and/or within the meaning of sections 297 and/or 298 of the LPUL or sections 4.4.3(1)(b) and/or 4.4.4 of the 2004 Act, for engaging in conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable in that she:
(a) deliberately, or recklessly and/or carelessly provided false and/or misleading information to the Applicant in response to the Applicant’s Investigation, being the Respondent’s 31 March 2016 Response;
(b) deliberately, or recklessly and/or carelessly provided false and/or misleading information to the Applicant in response to the Applicant’s Investigation, being the Respondent’s 13 December 2016 Response; and/or
(c) deliberately, or recklessly and/or carelessly provided false and/or misleading information to the Applicant in response to the Applicant's Investigation, being the Respondent's 20 March 2017 Response.
Then under the heading, ‘ORDER’, the document states:
ORDER
1. Adjourned to a further hearing before [Senior Member] on a date to be fixed for the purpose of hearing submissions on disposition…[3]
[3]VCAT Proceeding (n 1).
Then followed the Senior Member’s signature, the Tribunal’s seal and the appearances of counsel.
In his reasons, the Senior Member stated that:
24I find Charge 1 proved. Charge 2 being in the alternative, it falls away and is dismissed;
and:
32Having regard to the findings in relation to Charge 1, I am satisfied that it follows that Charge 7 is proved.[4]
[4]Ibid.
The appeal
Pursuant to s 148 of the VCAT Act, Ms Chen filed a notice of appeal seeking leave to appeal the decision of the Senior Member. The relevant parts of s 148 of the VCAT Act state:
A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding … to the Trial Division of the Supreme Court with leave of the Trial Division.[5]
The term order is defined to include interim order of the Tribunal.[6]
[5]Victorian Civil and Administrative Tribunal Act 1998 s 148 (‘VCAT Act’) (emphasis added).
[6]Ibid s 3.
The notice of appeal listed three questions of law:
(a) Did VCAT fail to comply with s 117 of the VCAT Act in giving adequate reasons for its decision?
(b) Did VCAT fail to correctly apply the legal principles relating to professional misconduct?
(c) Were Charges 1 and 7 proved in accordance with the principles established in Briginshaw v Briginshaw?
Grounds of appeal are given in respect of the questions of law.
Issue 1 – Competency of the Appeal
The Commissioner’s summons seeks the dismissal of the proceeding and bases that application on the contention that no valid appeal was before the Court and that therefore the Court lacked jurisdiction to hear the proceeding. Courts often hear such contentions first before proceeding further, whether or not an order has been made for the separate trial of a question as a preliminary issue under r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015. There was argument about whether the objection to competency procedure was applicable,[7] but the Court can and should determine the Commissioner’s summons at the outset of the appeal in accordance with the frequent practice I have mentioned.
[7]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 64.33.
Section 148 of the VCAT Act stipulates when a party may appeal. Relevantly, a party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding to the Trial Division of the Supreme Court with leave of the Trial Division.[8] The Notice of Appeal in this case seeks leave to appeal against the Findings made by VCAT. It seeks orders granting the Appellant leave to appeal against the Findings and Orders of the Tribunal and in lieu of the Findings seeks orders dismissing Charges 1 and 7 and seeks costs.
[8]VCAT Act (n 5) s 148(1)(b).
The question to be decided is whether the Findings were an order within the meaning of s 148 of the VCAT Act. VCAT is created by statute and has only the jurisdiction and powers conferred on it by law.[9] In hearing the proceeding and in issuing the document, being the decision, VCAT was required to act under an enabling enactment.
[9]State of Victoria v Turner (2007) 17 VR 217, 220 [10] (‘Turner’s Case’).
The Senior Member’s decision referred to two possible enabling enactments, the Legal Practice Act 2004 (‘LP Act’) and the Legal Profession Uniform Law (‘LPUL’), without concluding which in fact applied.[10] No doubt this was because the relevant misconduct spanned a time period during which the former Act was repealed by the latter.
[10]The offence provisions in each are relevantly the same, see: LPUL ss 297, 298; Legal Profession Act 2004 (Vic) (‘LPA Act’), ss 4.4.3(1)(a), 4.4.4.
The LP Act was repealed on 1 July 2015 by s 157 of the Legal Profession Uniform Law Application Act 2014 , Schedule 1 of which contains the LPUL, which commenced on the same date. Pursuant to the transitional provisions in schedule 4 of the LPUL, namely cl 27, the LPUL applies to the current matter as at least some of the conduct complained of pre-dated 1 July 2015, but the disciplinary complaint was received after that date. Accordingly, the LPUL appears to be the relevant enabling Act.
The legislation – The LPUL
Section 302 of the LPUL deals with the determination of disciplinary matters by the Tribunal. The Tribunal in hearing the complaint and in issuing the decision must therefore have acted under s 302 of the LPUL; it is that section which gives VCAT its authority to determine disciplinary matters and directs how it may dispose of proceedings.[11]
[11]See, eg, Turner’s Case (n 9) 219 [7].
Section 302 of the LPUL provides:
Determination by designated tribunal – disciplinary matters
(1) If, after it has completed a hearing under this Part into the conduct of a respondent lawyer, the designated tribunal finds that the lawyer is guilty of unsatisfactory professional conduct or professional misconduct, the designated tribunal may make any orders that it thinks fit, including any of the orders that a local regulatory authority can make under section 299 in relation to a lawyer and any one or more of the following—
(a)an order that the lawyer do or refrain from doing something in connection with the practice of law;
(b) an order that the lawyer cease to accept instructions as a public notary in relation to notarial services;
(c) an order that the lawyer’s practice be managed for a specified period in a specified way or subject to specified conditions;
(d) an order that the lawyer’s practice be subject to periodic inspection by a specified person for a specified period;
(e) an order that the lawyer seek advice in relation to the management of the lawyer’s practice from a specified person;
(f) an order recommending that the name of the lawyer be removed from a roll kept by the Supreme Court, a register of lawyers kept under the jurisdictional legislation or the Australian Legal Profession Register;
(g) an order directing that a specified condition be imposed on the Australian practising certificate or Australian registration certificate of the lawyer;
(h) an order directing that the lawyer’s Australian practising certificate or Australian registration certificate be suspended for a specified period or cancelled;
(i) an order directing that an Australian practising certificate or Australian registration certificate not be granted to the lawyer before the end of a specified period;
(j) an order that the lawyer not apply for an Australian practising certificate of Australian registration certificate before the end of a specified period;
(k)a compensation order against the lawyer in accordance with Part 5.5;
(l) an order that the lawyer pay a fine of a specified amount not exceeding $100 000 if the lawyer is found guilty of professional misconduct.
(2) Subject to section 303, the designated tribunal may make ancillary or other orders, including —
(a)an order for payment by the lawyer of expenses associated with orders under this section, as assessed or reviewed in or on accordance with the order or as agreed; and
(b) an interlocutory or interim order, including an order of the kind referred to in subsection (1).
…
(6) It is intended that jurisdictional legislation may provide a right of appeal against or a right of review of the designated tribunal’s decision.
Section 299 of the LPUL provides that the local regulatory authority may find that a legal practitioner has engaged in unsatisfactory professional conduct and may determine certain disciplinary matters by making any of seven specified orders.
The relevant question turns on what the Tribunal was authorised or required to do under s 302 of the LPUL and whether a finding of guilt to charges under s 302 is an appellable order under s 148 of the VCAT Act. I will next consider the parties’ submissions.
The Commissioner’s submissions
The Commissioner submitted that Ms Chen’s proceeding seeking leave to appeal should be dismissed because s 148 of the VCAT Act only permits an appeal on a question of law from an order of the Tribunal, whereas Ms Chen’s appeal seeks to impugn the findings of the Senior Member. The order made adjourned the proceeding for ‘hearing submissions on disposition’, thus s 148 of the VCAT Act cannot operate to allow Ms Chen to appeal VCAT’s finding that Charges 1 and 7 were made out, as they were findings, not orders.[12] In addition, the appellant’s application to appeal the Senior Member’s Findings, rather than waiting until the VCAT proceedings are completed, will cause delay and fragmentation.
[12]Citing ibid.
The Commissioner submitted that the decision of the Senior Member made ‘Findings’ and not ‘Orders’ of the kind contemplated by s 148 of the VCAT Act. The meaning of an order is to be found in the enabling enactment. In accordance with the wording and structure of s 302 of the LPUL, the Senior Member made ‘Findings’ and was thereafter to consider making ‘Orders’. Section 302 purposively distinguishes between the step of making a finding and the subsequent step of making an order. By analogy in a criminal trial, the accused cannot appeal against a verdict that he or she are guilty, but only against the sentence.[13]
[13]Criminal Procedure Act 2009 s 275.
The only order that the Senior Member made on 26 February 2020 was to adjourn the proceeding for the purpose of hearing submissions on disposition after which he would make orders. They could then be the subject of an application for leave to appeal. The Commissioner submitted that s 302 of the LPUL requires the Tribunal to carry out a two-step statutory function and it has only carried out one, and is yet to make an order.
The Commissioner submitted that the decision of Warren CJ in State of Victoria v Turner (‘Turner’s Case’)[14] was of direct application to the question to be decided. In Turner’s Case, Warren CJ considered that the governing statute, the Equal Opportunity Act 1995 (‘EO Act’) ‘prescribed the ways in which the tribunal might dispose of a complaint and that is yet to occur’.[15] Section 136 of the EO Act stated:
[14]Turner’s Case (n 9).
[15]Ibid [12].
136 – What may the Tribunal decide?
After hearing the evidence and representations that the parties to a complaint desire to adduce or make, the Tribunal may—
(a)find the complaint or any part of it proven and make any one or more of the following orders—
(i)an order that the respondent refrain from committing any further contravention of this Act in relation to the complainant;
(ii)an order that the respondent pay to the complainant within a specified period an amount the Tribunal thinks fit to compensate the complainant for loss, damage or injury suffered in consequence of the contravention;
(iii)an order that the respondent do anything specified in the order with a view to redressing any loss, damage or injury suffered by the complainant as a result of the contravention; or
(b)find the complaint or any part of it proven but decline to take any further action in the matter; or
(c)find the complaint or any part of it not proven and make an order that the complaint or part be dismissed.
Warren CJ stated that the task was to construe what the tribunal document represented. Section 136 did not contemplate or classify a finding by the tribunal as constituting an order. Her Honour stated:
The tribunal is a body created by statute and may only exercise the powers vested in it and by virtue of law. The tribunal is not a court exercising jurisdiction under common law to award damages. Specifically, under s 136 of the Equal Opportunity Act, the tribunal was constrained to one of four things: first, to find the complaint or any part proven and it did so; secondly, to order the restraint of further contravention, the payment of a specified amount and order specific matters to redress loss, damage or injury; thirdly, to find the complaint or any part of it proven but decline to take any further action; or, fourthly, to find the complaint or any part of it not proven and dismiss it. The section does not contemplate or classify an interim or final finding as reached by the tribunal here as constituting an order. Properly construed here the tribunal found the complaint proven in part, that indirect discrimination as specified had occurred in breach of the Equal Opportunity Act and that otherwise the complaint was found not proven and was dismissed leaving the question of remedy to be determined subsequently. Thus the tribunal made a finding under s 136 of the Equal Opportunity Act. However, its only order was the dismissal of the remainder of the complaint, thereby invoking para (iv) of s 136(a). In so far as the tribunal acted positively it merely made findings. It did not order (as properly understood by the expression) restraint, payment or redress or decline to take further action or dismiss the entire complaint. In specific terms the Tribunal completed the first part of the exercise of its statutory function under the Equal Opportunity Act in making a finding but it is yet to proceed to the second part of its function, namely to make an order. Properly construed, para 1 of the order does not constitute an order for the purposes of s 136 of the Equal Opportunity Act.[16]
[16]Ibid 220 [10].
The Chief Justice also stated that, as at the date of the order made by VCAT, the Tribunal was not ready to take the next step after making a finding, that was to come after further hearings.[17] The Tribunal had not yet taken the necessary statutory step or steps that would constitute the making of an order. The statute prescribed the way in which the Tribunal might dispose of a complaint and that had yet to occur.
[17]Ibid 220 [11].
Warren CJ, referred to the decision in Sigma Constructions (Vic) Pty Ltd v Maryvell Investments Pty Ltd (‘Sigma’)[18] and considered that the only relevant order that had been made by the Tribunal was the order dismissing the remainder of the complaint which had not been proved.[19] This was notwithstanding that an order had been made adjourning the hearing on remedy. It appears clear that her Honour did not consider that order a relevant order for the purposes of determining whether an order had been made pursuant to s 136 of the EO Act.
[18](2004) 22 VAR 279 (‘Sigma’) discussed in Turner’s Case (n 9) 219-20 [9].
[19]Turner’s Case (n 9) 220 [10].
To test her conclusion, Warren CJ asked ‘what did the order of the tribunal… amount to if not an order’, answering that it was at most a finding.[20] One could also ask, in my view, what does the purported order of the Senior Member amount to if it was an order? An ‘order’ that the lawyer is guilty of misconduct is not an order that can ‘come into effect’, be enforced, or for which a person can be guilty of an offence for non-compliance.
[20]Ibid [12].
Ms Chen’s submissions
Ms Chen submitted that the statutory jurisdiction in s 148 of the VCAT Act should be given a liberal interpretation. She argued that the word ‘order’ for the purposes of s 302 of the LPUL and s 148 of the VCAT Act was to be interpreted broadly, including most decisions on a question in a proceeding of the Tribunal.[21] A determination of a preliminary point is an order.[22] Similarly, when the Tribunal grants an injunction following a finding that it possessed jurisdiction, the finding of jurisdiction could be appealed.[23] The findings of guilt to the charges brought by the Commissioner were grave matters for a legal practitioner. Findings in professional disciplinary cases should be treated as special cases and be capable of being appealed.
[21]T 56-7.
[22]Citing Dura (Australia) Constructions Pty Ltd v Victorian Managed InsuranceAuthority [2012] VSC 34 (‘Dura Constructions’), which is discussed later in this judgment.
[23]Sigma (n 18).
Ms Chen drew the following principles from the decided cases. First that the Commissioner and the courts have accepted without question appeals from liability decisions in solicitors’ disciplinary cases under the predecessor to the LPUL. Secondly, whether a decision is an ‘order’ for the purposes of s 148 of the VCAT Act is a matter of substance rather than form. Thirdly, where a procedural order has as its foundation a decision intended to have final operation in relation to a discrete question, an error may be appealed. Where the Tribunal answers a preliminary question, the answers may be regarded as, in reality, an order, whether or not so expressed, and whether or not any formal procedure for the answering of a preliminary question was adopted. Fifthly, a ruling in the course of one continuous hearing is less likely to be characterised as an order than as a ruling embodied in a formal document with written reasons given at the end of a distinct hearing followed by an adjournment. Sixthly, it is conventional in professional disciplinary cases for two separate issues to dealt with in two separate trials and it is highly undesirable to require a professional person to make submissions in mitigation before the basis of liability is established. This is especially the case where there are multiple paths to some form of liability and a fortiori where fraudulent or innocent liability is pleaded in the alternative.[24]
[24]See Pham v Legal Services Commissioner [2015] VSCA 671.
Unlike s 136 of the enabling enactment in Turner’s Case, s 302(3) of the LPUL empowered VCAT to make ancillary and other orders not specified in sub-section (1). VCAT has many statutory powers contained in the VCAT Act independent of the conferral of powers by enabling enactments. The exercise of those powers may result in orders which can be appealed under s 148 of the VCAT Act.
Other sections of the VCAT Act are also relevant to the characterisation of VCAT’s Findings. For example, s 118 of the VCAT Act provides that an order comes into effect immediately after it is made or at the time specified in the order, and s 133 provides that a person who does not comply with an order of the Tribunal is guilty of an offence. VCAT’s reasons form part of its orders: s 117(6).
Ms Chen placed particular reliance on the decisions in VictorianLegal Services Commissioner v McDonald,[25] to which I refer later, in which the legal practitioner appealed findings of unsatisfactory professional conduct, without objection by the Commissioner, in litigation which resulted in two Trial Division judgments, a Court of Appeal judgment and a special leave application to the High Court.
[25](2019) 57 VR 186.
Ms Chen criticised the Commissioner’s reliance on Turner’s Case , noting that it dealt with an entirely different enabling Act. Turner’s Case depended on the fact that the Tribunal expressly purported to make its order under s 136 of the enabling act, which clearly distinguished between findings and orders. No argument was apparently made that the findings amounted in substance to an interim order.
Warren CJ said in Turner’s Case that the task is to ‘construe what the tribunal document represented’.[26] Ms Chen relied on this statement as the basis for a submission that there should be a greater focus on what the Senior Member had done in substance in the document containing the reasons, rather than on what the word ‘order’ means under s 148 of the VCAT Act.[27]
[26]Turner’s Case (n 9) 220 [10].
[27]See, eg, Transcript of Proceeding, Chen v Victorian Legal Services Commissioner (Supreme Court of Victoria, S ECI 2020 01481, Ginnane J, 4 August 2020) 43.12-19 (‘T’).
Ms Chen argued alternatively that the Findings as to guilt were findings or rulings which formed the premise or foundation for the order made adjourning the proceeding, and that the Findings were appellable on that basis. She did also appeal against the adjournment order and not just the Findings that she was guilty of charges 1 and 7.
Before considering the parties’ submissions, I will deal with three groups of authorities of potential relevance. The first are authorities on the application of s 148 of the VCAT Act. The second is Legal Services Commissioner v McDonald[28] litigation and the third are authorities considering the words ‘judgment or order’, which appear in many statutes containing right of appeals and which generally have been interpreted as including any decision which finally determines the rights of a person on a particular issue.
[28](2019) 57 VR 186.
Authorities on the meaning of ‘order’ in s 148 of the VCAT Act
In Sigma, the Court of Appeal held that while an appeal under s 148 of the VCAT Act, could not be made from a mere ruling of VCAT, a ruling which formed the ‘foundation for or the premise of the order’ could be appealed.[29] In that proceeding, on 26 June 2003, VCAT had ruled that it had jurisdiction to hear and determine the proceeding under the Fair Trading Act 1999. On 3 July 2003, the Tribunal granted a permanent injunction binding the party Sigma, who then obtained leave to appeal the order dated 3 July 2003. On appeal, Sigma argued both that VCAT erred in law in determining it had jurisdiction to hear the proceeding and that VCAT had erred in granting the permanent injunction. The Court rejected an argument by Maryvell that it was not open to Sigma to challenge the decision concerning jurisdiction, as leave had been granted only to appeal the 3 July 2003 order. The Court of Appeal considered that the ruling that VCAT had jurisdiction to hear the proceeding formed the premise or foundation for the order granting an injunction, and that it was open to Sigma to challenge the injunction on the basis that it had been made without jurisdiction.
[29]Sigma (n 18) 287 [18].
Similarly, in American International Assurance Company (Australia) Ltd v Skewes (‘Skewes’),[30] Cavanough J dealt with an appeal pursuant to s 148 of the VCAT Act where leave to appeal had been granted from what appears to have been purely procedural orders.[31] It is apparent from that decision that the procedural orders were made following the Tribunal determining it had jurisdiction to hear the proceeding, and it was the question of jurisdiction that was addressed on appeal.
[30][2010] VSC 307 (‘Skewes’).
[31]Ibid [2]-[3], [23].
In my opinion, the decisions in Sigma and Skewes address rulings which relate to the jurisdiction of the Tribunal to hear the matter before it, and on that basis form the premise or foundation of the orders subsequently made, even if merely procedural orders. Those decisions are distinguishable from the present case, because no order has yet been made based on the Findings.
In Dura (Australia) Constructions Pty Ltd v Victorian Managed Insurance Authority,[32] VCAT had answered preliminary questions in a dispute about the rights of the VMIA to give directions to Dura to rectify defects in a building development under an insurance policy it had taken out. After the preliminary questions were heard, VCAT made an order stating ‘Questions answered in accordance with the attached reasons’ and adjourned the hearing to a fixed date. Robson J decided that the answers in the reasons were orders within s 148 of the VCAT Act. His Honour referred to decisions under the Federal Court’s rules, in which determinations of preliminary questions were treated as appellable orders and it mattered not whether they were answered pursuant to orders for the determination of a preliminary question. VCAT had informally adopted the procedures of courts for the determination of preliminary questions.[33] Robson J distinguished Turner’s Case, because in the case before him, VCAT was entitled to make interlocutory orders.[34] His Honour said of the case before him:
An order was made for the determination of preliminary issues. Those preliminary issues were resolved. Although the matter at large was not finally resolved, the matter ordered to be heard separately was. In my opinion, it is proper to characterise the decision on a separate issue, ordered to be heard separately from the trial of the matter, as an order for the purposes of s 148 of the VCAT Act.
Warren CJ also drew the distinction between findings and the relief that follows. The distinction is well recognised. In this case however, the material difference is that the findings were findings that the Tribunal ordered should be heard and determined separately from the final hearing of the application. The decision required of the Tribunal hearing these separate questions was only the answers to them. Nothing further was required of the Tribunal hearing the separate questions as ordered to do. It is appropriate to describe the answers it came to on the separate questions as orders.[35]
[32]Dura Constructions (n 22). See also Owners Corporation OC1POS539033 v Black (2018) 56 VR 1.
[33]Ibid [40]-[49].
[34]Ibid [55].
[35]Ibid [56]-[57].
In Derring Lane Pty Ltd v Port Phillip City Council,[36] leave to appeal was granted from a VCAT finding[37] that a motel was not a residential building. The appellant sought to characterise that finding as an interim order. Balmford J granted leave to appeal, but did not decide the issue whether an order or an interim order had been made.
[36][1998] VSC 182.
[37]In Derring Lane Pty Ltd v Port Phillip City Council [1998] VSC 182, Balmford J referred to a ‘finding’: at [1]. But, in Turner’s Case (n 9), Warren CJ characterised it as ‘an interlocutory decision’: at 221 [12].
Victorian Legal Services Commissioner v McDonald litigation
Ms Chen relied on the litigation in Victorian Legal Services Commission v McDonald,[38] Mr McDonald, a legal practitioner, appealed from a finding of guilt made by the Tribunal to unsatisfactory professional conduct charges, prior to an order imposing sanctions being made. In the long history of that proceeding, the issue of the competency of the appeal was not been raised by any party, including the Commissioner who raises it now, legal representatives or judicial officers.
[38][2013] VCAT 1943. See also [2014] VSC 34; [2015] VSC 237; [2016] VCAT 21; [2017] VSC 89; [2019] VSCA 18; [2019] HCASL 190.
As mentioned, that litigation concerned charges of unsatisfactory professional conduct under the Legal Profession Act 2004. Two charges were found proved by VCAT and in the Senior Member’s reasons those findings were described as ‘Orders’.[39]
[39]Legal Services Commissioner v McDonald (Legal Practice) [2013] VCAT 1943.
Section 4.4.16 of the Legal Profession Act 2004 stated:
4.4.16 – Determinations of Tribunal
If, after it has completed a hearing under this Division in relation to an application in respect of an Australian legal practitioner, the Tribunal is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may make any one or more of the orders specified in section 4.4.17, 4.4.18 or 4.4.19.
Note:In addition to the orders referred to in this section, the Tribunal has jurisdiction under the Victorian Civil and Administrative Tribunal Act 1998 to grant injunctions, including interim injunctions (section 123 of that Act), to make declarations (section 124) and to make further orders and impose conditions on orders (section 130). Those further orders include orders for costs (see also clause 46D of Schedule 1 to that Act).
Section 4.4.17, provided:
4.4.17 – Orders requiring official implementation in this jurisdiction
The Tribunal may make the following orders under this section—
(a)an order recommending to the Supreme Court that the name of the practitioner be removed from the local roll;
(b)an order that the practitioner's local practising certificate be suspended for a specified period or cancelled;
(c)an order that a local practising certificate not be issued to the practitioner before the end of a specified period;
(d)an order amending the conditions of the practitioner's local practising certificate or imposing further conditions, restrictions or limitations on the certificate.
Section 4.4.18 enabled the Tribunal to make orders requiring their official implementation in another jurisdiction. Section 4.4.19 enabled the Tribunal to make orders requiring compliance by the practitioner including the payment of a fine, a requirement that the practitioner undertake a specified course of further legal education or conduct their practice for a specified period in a specified way or subject to specified conditions.
The reason why no question was raised in the litigation as to whether VCAT had made an order that was appellable may be explained by the fact that the Senior Member described his findings as orders and also by the Commissioner not opposing the appeal being heard by this Court. The matter first came before Derham AsJ who described its procedural history as follows:
Introduction
By originating motion filed on 27 November 2013 the appellant applies for leave to appeal the orders of a senior member of the Victorian Civil and Administrative Tribunal (VCAT). The ‘order’ (or more aptly, finding) with which the application is concerned is that the proposed appellant, Mr McDonald, was found guilty of two charges of unsatisfactory professional conduct under the Legal Profession Act 2004 (Act). This finding was pronounced on 18 November 2013.
If leave to appeal is granted, Mr McDonald seeks orders that the ‘judgment’ of the senior member be set aside and that the respondent pay the appellant’s costs. The application is made under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).
The orders made by the Senior Member on 18 November 2013 included that the matter is to be listed for further directions on the question of the sanctions which should be imposed as a result of the decision. I was informed by Counsel for the Legal Services Commissioner (Commissioner), Mr TJ Scotter, that the Commissioner had agreed to await the outcome of the application for leave, and if leave is granted, the outcome of the appeal, before proceeding to any sanctions hearing. The Commissioner thus had no objection to this application proceeding notwithstanding that no sanction had been considered or ordered. There was thus no submission that the application now made fragmented the proceedings below.[40]
[40]McDonald v Legal Services Commissioner [2014] VSC 34 [1]–[3].
The appeal was heard by Zammit J who allowed it and remitted the matter to VCAT.[41] At the rehearing before VCAT the same outcome occurred. The two charges were found proved and the question of sanctions adjourned while an application for leave to appeal to this Court occurred. Leave to appeal was again granted, on this occasion by Bell J, and again the appeal was allowed and the VCAT decision was set aside.[42] A successful appeal to the Court of Appeal occurred which set aside Bell J’s judgment.[43] An application for special leave to the High Court was refused.
[41]Victorian Legal Services Commissioner v McDonald [2015] VSC 237.
[42]McDonald v Legal Services Commissioner [2017] VSC 89.
[43]Victorian Legal Services Commissioner v McDonald [2019] VSCA 18.
The significance of the current issue of the existence of an order not being raised in the McDonald litigation causes additional reflection on the correct decision in this case. But it does seem to have arisen from the stance taken by the Commissioner in the hearing before Derham AsJ in 2014.
Authorities on the words ‘judgment or order’
There are many authorities that consider the meaning of the word ‘order’ or ‘judgment or order’. Although, they do not deal with a provision with a structure like s 302, it is appropriate that I refer to them. They emphasise the significance of the character of the decision that is sought to be appealed. For instance s 74 of the County Court Act 1958 permits an appeal against a judgment or order. The Court of Appeal decision in Moorabbin Transit Pty Ltd v Bekhit considered the operation of that provision finding that for an order to exist the decision must finally dispose of the party’s rights and liabilities.[44]
[44](2016) 50 VR 563, 574-5 [46] citing National Australia Bank Ltd v Russell [1990] VR 929, 925 applying McKenzie v Findlay [1996] VR 3.
The Court of Appeal said as to the right of appeal from the decision of VCAT:
The scope of that right, that is, the range of decisions from which an appeal can be brought, is to be determined by reference to the particular Act which confers the right. Relevantly, with respect to civil appeals from the County Court, that right is to be found in s 74 of the County Court Act and is restricted to ‘judgments or orders’. By comparison, s 148 of the VCAT Act confers a right to appeal directly to the Court of Appeal only from an ‘order’ made by the Tribunal in the proceeding and with the further restriction that the Tribunal was constituted, for the purpose of making the order, by the President or a Vice President of the Tribunal, with or without others. In addition, the right to appeal is subject to the restriction that the appeal is limited to a question of law.[45]
[45]Ibid 572, [37].
Gleeson CJ in R v Bozatsis[46] considered the words ‘judgment or order’ when delivering the judgment of the New South Wales Court of Criminal Appeal adopted a similar approach. He stated:
One of the reasons given for denying to a ruling on evidence, in the ordinary case, the quality of a judgment or order is that it can be changed during the course of the proceedings. It lacks finality. It does not require a decision of an appellate court to reverse it; at least in theory the judge can be persuaded to alter it.[47]
[46](1997) 97 A Crim R 296; (Meagher JA and Bruce J agreeing).
[47]Ibid 303.
On occasions a broad interpretation of the terms ‘judgment’ or ‘order’ has been adopted. Thus, in Legal Practitioners Complaints Committee v A Practitioner, King CJ stated:
A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact law or procedure made during the course of a hearing. Such incidental rulings are not judgments or orders and are therefore not appealable even by leave.[48]
[48](1987) 46 SASR 126, 127.
Consideration of submissions
In my opinion, the structure and context of s 302 of the LPUL under which the Senior Member’s Findings were made, suggests that the Findings were not orders within the meaning of s 148(1) of the VCAT Act. Rather, they were the first stage of the two stage process that the LPUL provides for the determination of charges of professional misconduct. The statutory duties of the Tribunal under s 302 should be interpreted to be first, make a finding as to guilt, and then second, make an order. Where the charge is not proved, but an order is made dismissing it, there will also be two stages: the finding that the charge has not been proved and the order dismissing it. The decision in Turner’s Case supports this analysis. Notwithstanding the different enabling Act in Turner’ Case, in my view it is relevant that Warren CJ did not consider that the findings made and the order adjourning the hearing on remedy were relevant orders for the purposes of s 148 of the VCAT Act.
The argument that the Tribunal has broader powers to make orders in the second step under the LPUL than was the case in Turner’s Case does not alter the characterisation or outcome of the first step.
Although Warren CJ emphasised that the task was to ‘construe what the tribunal document represented’,[49] that statement was part of comments to the effect that the relevant section of the enabling enactment gave VCAT the authority to determine complaints and directed how the Tribunal may dispose of complaints. Therefore, the act of construing what the Tribunal document represents is for the purpose of measuring it against the requirements of the enabling enactment.[50]
[49]Turner’s Case (n 9) 220 [10].
[50]Ibid [7], [10].
The following features of s 302 of the LPUL support the Commissioner’s position that the finding of guilt is not an ‘order’ for the purposes of s 148 of the VCAT Act.
The wording of s 302(1) of the LPUL supports an interpretation of a two-step statutory function, being a finding of guilt followed by the subsequent making of an order, in terms similar to Turner’s Case.[51]
[51]In Gillquist v Victorian Legal Services Commissioner [2018] VSCA 259, the Court of Appeal separated findings of misconduct from orders subsequently made: at [1]-[3], [34]-[36], [38]. However, the Court was not considering the question presently in issue.
Section 302(1) does not contemplate that a finding would constitute an order. While s 130(1) permits the Tribunal to make ‘any orders it thinks fit’, that power is subsequent to a finding of guilt and the types of orders expressly contemplated by s 302 of the LPUL, and by s 299, are orders properly characterised as penalty, protective or remedial orders. The order contemplate that something will be done or not done.
The power under s 302(2) of the LPUL to make ancillary or other orders would not operate to make what is otherwise properly construed as a ‘finding’ under s 302(1) into an interim or interlocutory order.
I note that s 302(6) states that it is intended that the jurisdictional legislation may provide a right of appeal against or a right of review of the designated tribunal’s decision. That provision would appear to refer to the final outcome of the proceeding.
The term ‘order’ in the VCAT Act is defined to include an interim order. An interim order is in turn defined to mean an order of an interim or interlocutory nature. Section 117 of the VCAT Act provides that the reasons for an order form part of the order. Other sections of the VCAT Act use the word ‘order’ to refer to something to be done or not done, for example in ss 101 and 131. But there is nothing in the VCAT Act that empowers a Tribunal member dealing with disciplinary complaints against legal practitioners to issue an order other than as contemplated by the legislation. In those circumstances, the decision of VCAT cannot be regarded as an order. I note that it was not described as an order but that is not decisive.
The decision of VCAT in this matter could certainly be regarded as finally determining, subject to any appeal after the making of orders, the issue of whether Ms Chen was guilty of the charges. Were it not for the structure and effect of s 302 of the LPUL, the findings might arguably be regarded as a ‘judgment or order’ within the third category of the authorities to which I have referred. But the right to appeal is created and the terms of the statute must determine whether the particular decision is appellable.
VCAT only has jurisdiction conferred by an ‘enabling enactment’.[52] Therefore it cannot make orders that it is not permitted to make either by the conferring legislation or by the VCAT Act, which includes incidental orders permitted by s 131.
[52]Director of Housing v Sudi (2011) 33 VR 559, 564 [19] (Warren CJ); VCAT Act (n 5) ss 40-3.
For the sake of completeness, I note that Order 4 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018, which governs appeals from tribunals and which expressly refers to appeals pursuant to s 148 of the VCAT Act,[53] defines ‘order’ to include ‘decision or determination’.[54] But that cannot be read as extending the meaning of the word ‘order’ where it appears in s 148 of the VCAT Act.
[53]Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 r 4.01(1)(a).
[54]Ibid r 4.02.
I also note that s 302 of the LPUL does not provide for what occurs in the event the Tribunal finds that the legal practitioner is not guilty of misconduct.[55] The Senior Member’s Findings included that in respect of Charge 2, that ‘Charge 2 being in the alternative to Charge 1, it falls away and is dismissed’. That dismissal of Charge 2 was in effect an order for the purposes of s 148(1) of the VCAT Act and in theory could have been appealed by the Commissioner. Although the dismissal of the charge was recorded as a Finding, in substance it was an order for the purposes of s 148 because it resulted from the two step statutory procedure contained in s 302: the finding that the charge was not proved and the dismissal of the charge. But the Findings of guilt in respect of Charges 1 and 7 were not orders.
[55]Cf Warren CJ’s consideration of s 136 of the EO Act in Turner’s Case (n 9).
I do not consider that the order for the adjournment of the proceeding for ‘submissions on disposition’ was an order that assists the appellant in establishing the competency of her appeal. She wishes to appeal against the finding of guilt to Charges 1 and 7. Her notice of appeal does not contain grounds challenging the adjournment order, which was an order ancillary to or incidental to the findings of guilt. Without the ability to challenge the findings of guilt to Charges 1 and 7, an appeal against the adjournment order has no purpose. The VCAT proceeding remains on foot and the second stage envisaged by s 302 must be completed. To the extent that the appellant sought to maintain the competency of her appeal by relying on the adjournment order, I consider that that order does not assist her.
I have not placed any weight on the submission that the appellant’s arguments would lead to fragmentation of proceedings, because the Court can, if necessary, deal with that issue by considering whether leave to appeal should be granted as a separate and preliminary matter.
In summary, I consider that within the structure of s 302 of the LPUL, the findings of the Senior Member were not an order within the meaning of s 148(1) of the VCAT Act and therefore the appeal is incompetent. The proceeding must be dismissed.
Issue 2 – Title of the Appellant
The second order sought by the respondent is to amend the name of the appellant to include after her birth name of Xiao Yi Chen, the identification ‘aka Anna Chen’. The appellant carries on practice under the name ‘Anna Chen’. The appellant’s Notice of Appeal omitted this identifier instead citing her birth name, Xiao Yi Chen. VCAT made an order that the title of the appellant be amended to ‘Xiao Yi Chen aka Anna Chen’ and there was no appeal from that order. This appeal should be conducted on the basis of VCAT’s order. Ms Chen pointed to the possibility of confusion because another practitioner had the same name, Anna Chen. But that is no reason not to apply the same naming procedure as did VCAT. The Court has power to amend the name of a party[56] and I consider that the Commissioner’s application should be granted. That will maintain similarity between the description of the appellant in the VCAT proceeding and in this proceeding.
[56]Supreme Court (General Civil Procedure) Rules 2015 r 36.01(4).
Conclusion
I order that the name of the appellant be amended to ‘Xiao Yi Chen aka Anna Chen’.
I dismiss the proceeding. I will give directions for written submissions about any other orders required, including costs.
VCAT must continue with the proceeding to complete its statutory task under s 302 of the LUPL.
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