Komesaroff v Council of Law Institute of Vic

[1997] HCATrans 384

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  Nos M38 and M39 of 1997

B e t w e e n -

MORRIS KOMESAROFF

Applicant

and

THE COUNCIL OF THE LAW INSTITUTE OF VICTORIA

First Respondent

ROBERT JOHN ALFRED CORNALL

Second Respondent

VICTORIAN LAWYERS RPA LIMITED

Third Respondent

Applications for special leave to appeal

BRENNAN CJ

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 DECEMBER 1997, AT 3.21 PM

Copyright in the High Court of Australia

___________________

MR M. KOMESAROFF appeared in person

MS C.F. McMILLAN:   If the Court pleases, I appear on behalf of Robert John Alfred Cornall, the second respondent named in the application book.  (instructed by Victorian Lawyers RPA Limited)

BRENNAN CJ:   Yes, Mr Komesaroff.  Mr Komesaroff, these two applications both involve the same matter in substance.

MR KOMESAROFF:   They do.

BRENNAN CJ:   Yes, thank you.

MR KOMESAROFF:   If your Honours please, I will not elaborate the argument which is submitted in the application book and in the argument which has been submitted with that, except to point out to start off with that in relation to the application book there are sections which are irrelevant in the judgment of Mr Justice Ashley.  They are pages 26 to 25 and pages 53 to 56.  They deal with matters which are not the subject of this application and are not part of the application for leave to appeal.  The matters to which I wish to draw attention, your Honours, are apparently not covered altogether by the arguments submitted.  Do your Honours have a volume called References Part 1?

BRENNAN CJ:   Yes, we do.

MR KOMESAROFF:   I wish to draw attention to the Institute By‑Laws which are relevant to the issues before the Court.  There is a reference in the argument submitted to By‑law 87:

Subject to the Act and to the By‑laws the Council:-

(a)  shall have the sole management of the Institute and of the affairs and concerns and the funds income and property thereof for the purposes and benefit of the Institute;

(b)  may exercise all powers vested in the Institute and do all acts and things as are directed or authorised by the Act to be done by the Institute or as are necessary conducive or incidental to the attainment of the objects of the Institute excepting only such powers acts and things as are expressly required by the Act or by the By‑laws to be exercised or done by the Institute in general meeting.

GUMMOW J:   This is on page 20 of your References Part 1, is that right?

MR KOMESAROFF:   That is so and continues at page 21 relating to the power of the Council to:

delegate to:-

(i)       the Executive;

(ii)       the office‑bearers of the Institute; or

(iii)     committees of the Council

any of the powers of the Council other than the power of delegation.

BRENNAN CJ:   What is the proposition, Mr Komesaroff, that the Council by reason of the powers which it is suggested in it by this by‑law can and was found to exercise a power to grant a practising certificate?

MR KOMESAROFF:   Perhaps if I can express it in this way.  The matter arises under section 79 of the Act which directs the secretary to have the duty to issue practising certificates and continues with the phrase and the Councils who have the power to make orders, regulations and directions in relation thereto.  The argument is that the power of the Council under that section is ‑ ‑ ‑

GUMMOW J:   What section was that, Mr Komesaroff?

MR KOMESAROFF:   Section 79 of the Act.  The issues that arise in these proceedings and in the proceedings before the Court has been the power of the Council to make orders or refuse to make orders in relation to section 79 directing the secretary to issue a practising certificate.

GUMMOW J:   Now, is that section repealed by the Legal Practice Act 1996, do you know?

MR KOMESAROFF:   The whole of the Act is repealed by the Legal Practice Act.

BRENNAN CJ:   Well, that would be an obstacle in the way of special leave by itself, Mr Komesaroff, because this Court would not ordinarily grant special leave to consider the interpretation of a provision which had been repealed by a later Act.

MR KOMESAROFF: With respect, your Honour, it is a matter of general importance in relation to the functions of a Council appointed under an Act to act in a special way, a particular body which is constituted as that incorporated body. Perhaps if I turn to the section in the Act which is contained in the - it appears as Schedule 2, Part 3 of the Legal Practice Act 1996 and clause 13 commences:

Society succeeds Institute

(1)  On the commencement day -

(a)  the Institute is abolished;

(b)  the council of the Institute is abolished and its members go out of office as members;

(c)  all rights, property and assets that, immediately before the commencement day, were vested in the Institute (other than -

matters relating to the Solicitors’ Guarantee Fund:

are vested in the Society;

(d)  all debts, liabilities and obligations of the Institute existing immediately before that day (other than -

again the debts relating to the Solicitors’ Guarantee Fund:

become, by force of this sub‑clause, debts, liabilities and obligations of the Society;

(e)  the Society is, by force of this sub‑clause, substituted as a party to any proceeding pending in any court or tribunal to which the Institute was a party immediately before that day, other than -

the Solicitors’ Guarantee Fund matters, and:

(f)  the Society is, by force of this sub‑clause, substituted as a party to any arrangement or contract entered into by or on behalf of the Institute as a party and in force immediately before that day -

et cetera and (g) has a reference to rules, regulations and references to the Institute.  In my submission, the Act which was repealed on 1 January remains in force in respect of these proceedings and the proceedings initiated originally in about 1992 and 1994 and that it is appropriate that this Court consider the question of leave to appeal against the decisions relating to the orders made in those proceedings.

McHUGH J:   But what is your point?  Your point is that under section 79 the Council must consider an application for a practising certificate itself.  Is that your point?

MR KOMESAROFF:   The basic point, your Honour, is that it has failed to consider an application to deal with the matters referred to and the authorities for that are Sutherland Shire Council v Heyman, considered by the House of Lords in Stovin v Wise.

McHUGH J:   I appreciate you rely on these cases, but they are negligence cases and what is put against you in the courts below is that if you look at the framework to be found in Division 4 and Division 5, the secretary is the person who has the power and obligation to issue practising certificates and that the Council’s only role is in their discretion to give instructions within the general framework imposed by Divisions 4 and 5.  Is that not the case that is put against you?

MR KOMESAROFF:   That is the case that is put against me.

McHUGH J:   Now, what is your answer to that?

MR KOMESAROFF:   My answer to that is that there is an obligation on the Council to consider an application under section 79 for the modification or the duty of the secretary in relation to the issue of a practising certificate and the authority for that is set out in the headnote of Sutherland’s Case and in the passages that I can refer this Court to in the judgment of Justice Mason and Justice Gibbs as to the duty in relation to a statutory power.  If there is a statutory power, then there is an obligation to consider the exercise of that power.  Whether it is appropriate or any decision it makes is appropriate is another matter.

McHUGH J:   That only arises when there are circumstances which may call for the exercise of the power and you have got to be able to point to some circumstances that would require the Council to consider the matter, even assuming that they have got the power that you contend for.

MR KOMESAROFF:   I contend, your Honour, that in these proceedings I made application ‑ ‑ ‑

McHUGH J:   I know you do, but where in the Act can you find anything that would indicate that the fact that you made an application to have the matter dealt with by the Council is a relevant factor?

MR KOMESAROFF:   I do not follow, with respect.  The point that I am endeavouring to make is that I did make an application pursuant to that power.  The Council had the power to consider that application.  It failed to consider that application and, therefore, was in breach of its statutory power.  It is a discretionary power.   It may have decided against me but they failed to make any decision on the application made by me, the details of which are set out in the application book.  I think that covers the point that your Honour was making.

McHUGH J:   Yes.

BRENNAN CJ:   There are two problems though, are there not, Mr Komesaroff?  One is the existence of the power.  The other is the duty to exercise it.  Now, as to the power, the question is whether or not the power is as extensive as you contend it to be and the second is, if there is a power, whether there was a duty to exercise it.  Now, the second of those points is the one that you have just addressed in answer to Justice McHugh, if I understand it correctly, but the real problem that is put against you is, here is a function which is reposed by statute in the secretary.  Now, certainly he is the secretary of the Law Institute and certainly the Council has certain powers in relation to giving of orders which will affect the manner in which the secretary discharges his statutory functions, but it is a long step, is it not, to say that the powers of the Council are powers which entitle it either itself to exercise the powers which are conferred by statute on the secretary, or to direct the secretary as to the manner of the exercise of the powers?

MR KOMESAROFF:   Well, with respect, I will take you to the sections of the Act itself incorporating the Institute, the sections dealing with the powers of the Council having the sole management and control of functions of the Institute and to section 79 itself which continues:

It shall be the duty of the secretary to keep a roll of solicitors and to issue practising certificates.....; and the council may give such orders and directions -

in relation to those functions.

BRENNAN CJ:   In other words, you rely upon the general supervisory functions of the Council under the Law Institute Act to establish the sufficiency of the power for the purposes of section 79?

MR KOMESAROFF:   That, your Honour, together with the provisions of the by‑law which specifically indicates that the - I hope the numbering in the documents which I submitted to the Court are consistent with mine, your Honour.

BRENNAN CJ:   Page 20 No 87.

MR KOMESAROFF:   Page 20 No 87.  There is a section that deals with the secretary which I have numbered 23 and it is headed “Officials”.  It is taken as an extract from the By‑Laws of the Council:

100.    The Council shall appoint a Secretary of the Institute and may from time to time remove the Secretary and appoint another Secretary in his place.

103 provides:

The Council may subject to the Act prescribe the functions and duties of the Secretary and any other officials and staff of the Institute.

I would submit that the duty of the secretary is subject to the control of the Council, your Honours, and that it is specific by reason of the provisions of section 16, which provides for the incorporation of the Institute:

(1)  There shall be a body corporate by the name of the Law Institute of Victoria.....

(2)  The Institute shall consist of all practitioners who have become or who become members of the institute -

Section 17 is the corporate powers:

The institute shall have perpetual succession -

I will gloss, if I may, the particular sections, your Honours:

and by its corporate name shall be capable of suing and being sued.....and subject to this Act of doing all such other things as it deems expedient for effectuating its objects.

The provisions relating to the Council of the Institute is section 21, your Honours:

There shall be a council of the institute consisting of the following persons, namely -

(a)  the Attorney‑General -

and members who are nominated.  Section 23 provides that:

Council to manage institute’s affairs

(1)  Subject to this Part and the by‑laws of the institute the council -

(a)  shall have the sole management of the institute and of the affairs and concerns and the funds income and property thereof for the purposes and benefit of the institute;

(b)  may make rules of the institute in pursuance of any power in that behalf conferred by by‑laws of the institute; and

(c)  may exercise all powers vested in the institute and do all such acts and things as are hereby directed or authorized to be done by the institute, excepting only such powers acts and things as are expressly required by this Part or the said by‑laws to be exercised or done by the institute in general meeting.

It is submitted, your Honours, that the Council is given the widest powers of control in carrying out the functions of the Institute, that it is to be treated virtually as a sub‑corporation within the Institute itself.  The learned judges in the courts below referred to an unincorporated association as a definition of the Council.  In my submission, it is clear that the Council is treated as a body with powers which are vested in the Council as such, however they are made up.  To call them an unincorporated association is playing with words.  Section 105 of the Act ‑ ‑ ‑

BRENNAN CJ:   I see your time has expired, Mr Komesaroff.  Are there any other points that you wish to make in support of your application ,that is briefly make as a matter of principle rather than taking us through the Act?

MR KOMESAROFF:   Yes, your Honour.  Well, I would like to conclude the matters I have just referred to by reference to section 105.

GUMMOW J:   This is practitioners from other States?

MR KOMESAROFF:   No, section 105 of the rules of the Institute.

GUMMOW J:   107?

MR KOMESAROFF:   I ask the Court’s indulgence until I can find the specific section.  It is section 88, your Honour, “The council may make rules” under Division 5:

The council may make rules of the institute for or with respect to all or any of the following matters:

There is a reference on the following page to subparagraph (b).  There is a reference to paragraph (cb) and relevant to my submission is subparagraph (o):

Generally, prescribing any matters authorized or permitted to be prescribed under this Part or necessary or expedient to be prescribed for carrying this Part into effect.

Subparagraph (2) deals with the application of the powers to make rules.  Subparagraph (3):

The power to make rules of the institute conferred on the council by this Division shall be in addition to and not in derogation from any other powers of the council to make rules, and such other powers may be exercised as if this Division had not been passed.

BRENNAN CJ:   Thank you, Mr Komesaroff.

MR KOMESAROFF:   The other matter, of course, to which I refer in the application for special leave is the application of section 86(1).

BRENNAN CJ:   Yes, we have seen the material that you have put.  Thank you, Mr Komesaroff.  We need not trouble you, Ms McMillan.

BRENNAN CJ:   Thank you, Mr Komesaroff.  The Court need not trouble you, Ms McMillan.

There was no error in the Court of Appeal’s understanding of the function or powers of the Council of the Law Institute under section 79 of the Legal Profession Practice Act 1958 (Vic).  That Act has now been repealed.  For both of those reasons, special leave is refused.

MS McMILLAN:   If the Court pleases, I seek an order for costs.

BRENNAN CJ:   Do you have anything to say about that, Mr Komesaroff?

MR KOMESAROFF:   I say that the proceedings have been brought not only on my own behalf but on behalf of the members of the profession generally and I would say that, in the circumstances, the Institute itself can bear the costs of these proceedings, rather than me personally.

BRENNAN CJ:   Are you pressing your application?

MS McMILLAN:   Yes, indeed, we are, your Honour.

BRENNAN CJ:   In those circumstances, the Court has no option but to make the order of refusing special leave with costs.

AT 3.47 PM THE MATTER WAS CONCLUDED