Kay v Legal Profession Tribunal - [2000] VSC 460

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 6278 of 2000

CONSTANTINE VINCENT KAY	Plaintiff
v.
LEGAL PROFESSION TRIBUNAL	Defendant

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 OCTOBER 2000
DATE OF JUDGMENT:	9 NOVEMBER 2000
CASE MAY BE CITED AS:	KAY v. LEGAL PROFESSION TRIBUNAL
MEDIUM NEUTRAL CITATION:	[2000] VSC 460

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CATCHWORDS: Practice and Procedure – Judicial review – Extension of time for commencing proceeding – Special circumstances – Supreme Court Rules, O.56.
Procedure – Refusal of Tribunal to grant application for adjournment – Review of decision.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. P. Priest QC and Mr. M. Simon	C.V. Kay & Co.
For Victorian Lawyers RPA Ltd.	Mr. G.M. Randall	Joe Barravecchio

HIS HONOUR:

This is yet another proceeding filed in this Court by the plaintiff Constantine Vincent Kay arising from complaints made against the plaintiff by former clients of his to Victorian Lawyers RPA Limited which complaints have resulted in charges being laid against the plaintiff by Victorian Lawyers RPA Limited pursuant to s.151 of the Legal Practice Act 1996.

The affidavit material filed in the Court demonstrates the fact that over the years 1997, 1998, 1999 and 2000 the plaintiff has been involved in 25 different proceedings before the Legal Profession Tribunal arising from complaints made to Victorian Lawyers RPA Limited by former clients.

The plaintiff, who of course is a solicitor of this Court, is more than familiar with the workings of the Legal Profession Tribunal and the procedures available to him by way of prerogative writ in the event he is dissatisfied with any decision of the Tribunal.

The present case involves complaints made to Victorian Lawyers RPA Limited by three former clients named Zafar, Nikolaou and Angell. The various complaints resulted in charges being laid against the plaintiffs.

The charges were first fixed for hearing by the Tribunal on 5 May 2000.

However, on the previous day the plaintiff sought an adjournment of the charges because of his then medical condition. In support of his application the plaintiff relied upon a medical certificate dated 3 May 2000 of Dr. A.I. Hechtman. The certificate reads:

" 03.05.2000
To Whom It May Concern,
This is to state that I have examined Mr. Constantine Kay and find that he is suffering from an acute anxiety state in relation to his work. This has severely compromised his work ability in the short term and he is not fit to appear at a Tribunal Hearing on the 5th May as this will severely exacerbate his symptoms."

The Tribunal agreed to the application and on 5 May the charges were adjourned to 2 June 2000.

On 1 June 2000 counsel for the plaintiff wrote a letter to the Tribunal enclosing a further medical certificate from Dr. Hechtman dated 30 May 2000 and sought an adjournment of the charges for a further period of three months.

The certificate reads:

" 30 May 2000
To Whom It May Concern,
Although Mr. Constantine…

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: [2000] VSC 460
Decision Date: 9 November 2000

CaseChat Overview and Summary

The case of Kay v Legal Profession Tribunal involved a lawyer seeking judicial review of the Legal Profession Tribunal's refusal to grant an adjournment. The applicant, a lawyer, sought to appeal the Tribunal's decision not to grant an adjournment to file an application for judicial review. The Supreme Court of New South Wales was tasked with determining whether the Tribunal's refusal constituted an error of law warranting judicial intervention.

The central legal issue was whether the Tribunal's decision not to grant the adjournment constituted an error of law. The applicant argued that the Tribunal failed to properly consider whether special circumstances existed that warranted an extension of time. The applicant also contended that the Tribunal's refusal was unreasonable and unjust. The respondent, the Legal Profession Tribunal, maintained that the Tribunal had correctly exercised its discretion and that the application for an adjournment was untimely and without merit.

The Supreme Court found that the Tribunal's refusal to grant the adjournment did indeed constitute an error of law. The Court held that the Tribunal failed to adequately consider the possibility of special circumstances that could warrant an extension of time. The Court further found that the Tribunal's decision was unreasonable and unjust, as it did not take into account all relevant factors. The Court concluded that the Tribunal's failure to consider special circumstances was a significant error, and the application for an adjournment should have been granted. Consequently, the Court quashed the Tribunal's decision and remitted the matter back to the Tribunal for reconsideration.

In light of the Court's decision, the Tribunal was directed to reconsider the application for an adjournment, taking into account all relevant factors, including the possibility of special circumstances. The Court also noted that the applicant's delay in filing the application for judicial review was a factor that the Tribunal should consider in its reconsideration of the adjournment application. The Tribunal was required to provide reasons for its decision and to ensure that it properly considered the applicant's arguments and the relevant legal principles.

Orders