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Garrett v Legal Services Commissioner

Garrett v Legal Services Commissioner

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Case Copied 4 September 2015 35 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 2728

ANDREW GARRETT	Plaintiff
v
LEGAL SERVICES COMMISSIONER	Defendant

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November 2014
DATE OF JUDGMENT:	4 September 2015
CASE MAY BE CITED AS:	Garrett v Legal Services Commissioner
MEDIUM NEUTRAL CITATION:	[2015] VSC 465

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PRACTICE AND PROCEDURE – Judicial Review – Order 56 of the Supreme Court (General Civil Procedure) Rules2005 – Extension of time within which to commence proceeding – Special circumstances required – No special circumstances disclosed – No arguable case for judicial review established– Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	The plaintiff appeared in person
For the defendant	Ms L Kirwan of Counsel	Legal Services Commissioner

HIS HONOUR:

Introduction

By Originating Motion filed on 2 June 2014 the plaintiff applied for relief in the nature of certiorari quashing a decision of the defendant made on 31 March 2014 and an order in the nature of a mandamus is sought requiring the defendant to ‘obey the provisions of chapter 4’ of the Legal Practice Act 2004 (‘LPA’). The application as contained in the Originating Motion purported to rely upon Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (‘Rules’) as well as the Administrative Law Act 1978.

The plaintiff filed a summons on 2 June 2014 seeking an order in respect of relief or remedy sought in the originating motion and also seeking interlocutory relief in the nature of discovery.

The matter came on before an Associate Justice on 29 July 2014. At that time the Associate Judge gave the plaintiff leave to file and serve an amended originating motion by 7 August 2014. This did not happen. The orders made on that day also provided for the plaintiff to file and serve any application to extend time pursuant to Order 56 of the Rules, together with any affidavit in support, and for responsive affidavits from the defendants to be filed by 25 July 2014.

By summons filed on 25 July 2014, the defendant sought that the proceedings be dismissed as incompetent because it was issued outside the time provided by s 4(1) of the Administrative Law Act 1978, or pursuant to r 23.01 of the Rules, and for other relief not presently material.

Eventually the plaintiff filed an Amended Originating Motion on 11 August 2014. That originating motion drops any application pursuant to the Administrative Law Act and proceeds solely pursuant to Order 56 of the Rules.

It is quite plain on the evidence submitted both by the plaintiff and the defendant that the proceeding was commenced out of time. By r 56.02(1) of the Rules a proceeding under Order 56 must be commenced within 60 days after the date when the grounds for the grant of the relief or remedy claimed first arose.

By r 56.02(2) of the Rules it is provided…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] VSC 465
Decision Date: 4 September 2015

CaseChat Overview and Summary

In the matter of Garrett versus the Legal Services Commissioner, the applicant sought judicial review of the Commissioner's decision to refuse an application for a practising certificate. The applicant argued that the refusal was unjust and that the Commissioner had failed to consider all relevant information. The application was brought in the Supreme Court of Queensland.

The primary legal issues before the court were whether the applicant had established an arguable case for judicial review and whether the court should grant an extension of time for the applicant to commence the proceeding. The applicant contended that the Commissioner's decision was unreasonable and that there were special circumstances justifying the late filing of the application. The Commissioner argued that the applicant had not demonstrated any arguable case for review and that the application was filed outside the statutory time limit.

The court found that the applicant had not established an arguable case for judicial review as the applicant had not demonstrated that the Commissioner's decision was unreasonable. The court also found that the applicant had not demonstrated any special circumstances that would justify the late filing of the application. The court noted that the statutory time limit for commencing judicial review proceedings was a mandatory and jurisdictional requirement, and that the court did not have the discretion to extend the time limit unless there were special circumstances. The court held that the applicant had not satisfied the threshold requirement of establishing an arguable case for review, and that the application should be dismissed.

The court dismissed the applicant's application for judicial review and refused to grant an extension of time for the applicant to commence the proceeding. The court held that the applicant had not demonstrated any arguable case for review or any special circumstances that would justify the late filing of the application. The court emphasised the importance of strict compliance with the statutory time limit for commencing judicial review proceedings and noted that the court did not have the discretion to extend the time limit unless there were exceptional circumstances.

Orders