Kuek v Victoria Legal Aid
[2005] VSCA 45
•15 March 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 7943 of 2001
| GABRIEL KUEK | |
| Appellant | |
| v. | |
| VICTORIA LEGAL AID & ANOR | Respondents |
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JUDGES: | ORMISTON and BUCHANAN, JJ.A. and GILLARD, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 4 and 5 October 2004 | |
DATE OF JUDGMENT: | 15 March 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 45 | |
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Application to Supreme Court from administrative decision pursuant to s.30(18) of the Legal Aid Act 1978 – Nature of application – Interpretation of provision - Intention of Parliament – Application not an appeal – Court on application must decide the issues on evidence before the Court.
Solicitor on Legal Aid panel – Name removed for four years – Error by trial judge as to nature of jurisdiction – Period of removal from panel set aside – New period fixed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M. Heaton Q.C. with | Access Law |
| For the 1st Respondent | Ms D.S. Mortimer S.C. | Victoria Legal Aid |
| For the 2nd Respondent | No appearance |
ORMISTON, J.A.:
I have had the benefit of reading the reasons for judgment which Gillard, A.J.A. proposes to deliver. I agree with the interpretation which his Honour places on the relevant provisions of the Legal Aid Act 1978. Section 30(18) is now repealed and its terms and the context in which it had to be read were peculiar to that legislation, such that it does not flow that similarly expressed review provisions will be construed in the same way in the future. I agree also with the orders that Gillard, A.J.A. proposes.
BUCHANAN, J.A.:
I agree with Gillard, A.J.A. that the trial judge was required to determine the question of the period of the appellant’s removal from the panel on the basis of the material before the trial judge. Accordingly, I agree that the appeal should be allowed. I also agree that this Court should substitute a period of removal of three years and five months.
GILLARD, A.J.A.:
This is an appeal from orders made by a judge of the Trial Division dismissing an application made by the appellant pursuant to the provisions of s.30(18) of the Legal Aid Act 1978 (“the Act”) that his removal from the referral panel of legal practitioners maintained by Victoria Legal Aid should be set aside.
Parties
The appellant, Gabriel Kuek (“Mr Kuek”), is and was at all relevant times a solicitor and at all relevant times practised under the firm name of “Gabriel Kuek and Associates”. He and his firm were members of a referral panel prepared and maintained by Victoria Legal Aid.
The first respondent, Victoria Legal Aid (“VLA”) is a body corporate by reason of s.3 of the Act. At all relevant times VLA administered the Act, providing legal aid to persons involved in litigation in this State.
The second respondent, Mr Martin Ravech, Q.C. (“Mr Ravech Q.C.), a former judge of the County Court of Victoria, was a member of a panel of independent reviewers appointed by the Attorney‑General pursuant to s.18 of the Act. He made the determination removing Mr Kuek’s name from the panel which was the subject of the proceeding in the Trial Division. He did not appear on the appeal and in conformity with the usual practice, informed the Court he would abide the decision of the Court save as to any submissions on costs.
History and Nature of Dispute
The events and circumstances which ultimately led to a dispute and a proceeding in the Trial Division of this Court can be briefly summarised.
Mr Kuek and his firm had been on the referral panel prepared and maintained by VLA in accordance with s.30(5) since 1989. Practitioners on the panel are available to take an assignment to provide legal services to an assisted person. In January 1995, Mr Kuek accepted from VLA a retainer pursuant to s.30 to act as a solicitor for one Te, who had been charged with the offence of trafficking heroin. Mr Te had been committed to stand trial in the County Court. Mr David Perkins of Counsel was briefed by Mr Kuek to appear for Mr Te and the matter came on before His Honour Judge Kellam (as his Honour then was) on a number of occasions during the period from July 1995 until November 1995. Various issues were debated and discussed. All told there were about a dozen appearances. It appears that during the course of some of the hearings his Honour was critical of the behaviour of Mr Kuek. Mr Kuek unilaterally withdrew his services and those of counsel on the eleventh day of trial causing an unnecessary adjournment of the proceeding. In November 1995, Mr Te changed solicitors and following his trial was convicted in May 1996. In the course of delivering reasons for sentence, his Honour severely criticised the conduct of both Mr Perkins and Mr Kuek.
By notice dated 11 December 1997, VLA advised Mr Kuek of its intention to remove him and his firm name from the referral panel of practitioners established under s.30(5), for a period of five years. The VLA letter comprised seven pages of detailed particulars of criticism of Mr Kuek concerning his conduct in the Te trial and in addition criticising his attitude and behaviour towards VLA and its officers, referring to many letters he had sent to VLA which were described as “adversarial, hectoring, demanding and generally unco-operative”.
The notice was given as required by s.30(10). VLA was obliged to set out the reasons for the proposed removal and afford Mr Kuek the opportunity to be heard and to show cause why the removal should not be made. On 24 December 1997, Mr Kuek exercised his right to be heard and to show cause why his removal should not be made. As Mr Kuek had given notice that he wished to be heard, VLA was obliged pursuant to s.30(12) to appoint an independent reviewer to hear and determine the matter. Section 18 gives power to the Attorney‑General to appoint a panel of independent reviewers. One of the functions of an independent reviewer was to hear and determine any matter referred to him under s.30. An independent reviewer was appointed but he was restrained from hearing the matter and on 18 May 1999 Mr Ravech, Q.C.was appointed to hear and determine the matter.
The effect of these events was that Mr Kuek was not removed from the panel of names. That issue was in the hands of the independent reviewer.
Mr Ravech, Q.C. conducted a hearing which occupied 17 full days and three half days. In a 34 page document Mr Ravech, Q.C. gave reasons for his determination and concluded, for the reasons given by VLA to Mr Kuek in its letter dated 11 December 1997 which were later refined in amended contentions, it was justified in its resolution to remove Mr Kuek from the panel and that he had failed to show cause why he should not be removed. Mr Ravech, Q.C. reserved the question of the period for which such removal should run and ultimately on 5 October 2001, he fixed the period of removal at four years. Pursuant to s.30(14) Mr Ravech, Q.C. advised VLA of his determination and pursuant to s.30(15) VLA gave notice to Mr Kuek.
It is the decision of the independent reviewer which results in the removal of the practitioner – s.30(12)(14) and (15).
Section 30(18) gave Mr Kuek and his firm the right to apply to the Supreme Court for an order setting aside his removal. He exercised that right and applied by an originating motion filed on 12 October 2001. He joined VLA and Mr Ravech, Q.C. as defendants.
The application came on for hearing before a trial judge at the end of July 2002. At the end of the hearing his Honour delivered judgment refusing Mr Kuek’s application. Mr Kuek was ordered to pay the costs. On 22 August 2002 Mr Kuek filed a notice of appeal.
Proceeding at first instance
In filing the originating motion, Mr Kuek invoked the statutory jurisdiction given to the Court by s.30(18). It provided –
“(18) A sole practitioner, firm, incorporated practitioner, partner, director, or employee aggrieved by any exclusion or removal may, within 28 days after the receipt of notice of the exclusion or removal, apply to the Supreme Court for an order setting aside the exclusion or removal and the Supreme Court may, as it thinks fit, grant the application subject to conditions or unconditionally or postpone the making of an order or dismiss the application.”
The jurisdiction no longer exists and was repealed by s.8 of the Legal Aid (Amendment) Act 1998. However, the sub-section survived for Mr Kuek’s application to the Court – see s.12 of the amending Act. The present regime is that a decision of the VLA or a determination by an independent reviewer is final and not subject to appeal[1]. The amendment preserves the common law judicial review jurisdiction and right to make application pursuant to the Administrative Law Act 1978 – see now s.30(18A) of the Act.
[1]See s.30(18).
At the hearing before the judge at first instance, the question arose as to the nature of the jurisdiction which had been invoked by Mr Kuek. It is clear from his Honour’s reasons that the parties and he treated the application to the Court as an appeal.
Both parties submitted to the judge that he should treat the proceeding as an appeal in the strict sense. They referred to the decision of Warren, J. (as she then was) in MacGregor v. Victoria Legal Aid[2]. In MacGregor, the parties informed her Honour that they had agreed that an application under s.30(18) was an appeal by way of a hearing de novo. Her Honour, however, stated that the Court and not counsel, must decide the question and she concluded it was an appeal in the strict sense. There is no doubt that in the final analysis the decision is one for the court. In Yianoulatos and ors v. Victoria Legal Aid and anor[3], heard the year before MacGregor, Mandie, J. was told by counsel for the parties that they had agreed that the nature of the power given to the court was to conduct an appeal by way of hearing de novo. Having regard to the agreement the judge stated that he did not propose to canvass the authorities. He noted that the language used in the sub‑section was different to language used in other statutes concerning appeals from tribunals and concluded “that as the parties have agreed that it is a hearing de novo, I am not disposed to disagree with that”.
[2][1999] VSC 448, especially at paragraphs [11] and [12].
[3][1998] VSC 163.
In the present matter the judge, having been informed by the parties as to the nature of the appeal, said this:
“Both parties submitted that I should treat the proceeding as an appeal in the strict sense, in accordance with the decision of Warren, J. in MacGregor v. Victorian Legal Aid and I propose to do so.
I adopt, with respect, what her Honour had to say about the nature of this sort of proceeding and her Honour’s reasons for concluding that such a proceeding is in the nature of an appeal in the strict sense, as to both matters of fact and questions of law.”[4]
[4]Paras [33] and [34].
The nature of an appeal in the strict sense was described by Gleeson, C.J., Gaudron and Hayne, JJ. in Coal and Allied Operations Pty Ltd v. Australian Industrial Relations Commission and ors [5] Their Honours said:
“It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense.”
[5](2000) 203 C.L.R. 194 at 203.
Although the parties had agreed that it was to be an appeal in the strict sense, there was a dispute as to whether the decision to remove Mr Kuek from the panel was a discretionary decision. If it was a discretionary decision then it was incumbent upon Mr Kuek to establish an appealable error of the type referred to in the well known case of House v. The King[6]. Mr Kuek’s counsel submitted it was not discretionary whereas the VLA contended it was. His Honour concluded that the decision to remove Mr Kuek from the panel was a discretionary decision. It was common ground between the parties that the period of removal was a discretionary decision.
[6](1936) 55 C.L.R. 499 at 505.
His Honour then went on to pose the test to apply in the proceeding as follows:
“Accordingly, I consider that in order to succeed in this proceeding, it is incumbent upon the plaintiff to show that the independent reviewer committed appeallable error by taking into account irrelevant considerations or ignoring relevant considerations or otherwise acting unreasonably in the sense explained in House v. The King. I add that, to some extent, I am confirmed in that view by the fact that what is provided for in sub-s. 30(18) is not in terms a right of appeal but rather an application to this Court to have the decision ‘set aside’.” [7]
[7]Paragraph [42].
His Honour then went on to state that he would also consider the matter based on another test. He said:
“In case, however, I am wrong in that view, and the question of whether cause was shown is one for me to decide, I propose to consider the matter by reference to that test also: see and compare Australian Heritage Commission v. Mount Isa Mines Ltd[8]; Enfield Corporation v. Development Assessment Corporation[9]; Cabal v. Attorney‑General[10]; Aaronsen and Dyer[11]. A large volume of evidence has been tendered to me and I have had the benefit of detailed oral and written submissions from counsel. It is appropriate in the circumstances that I assess the question by reference to both of the possible tests.”[12]
[8](1997) 187 C.L.R. 297 at 304.
[9](2000) 1999 C.L.R. 135 at 146.
[10](2001) 113 F.C.R. 154 at [76] – [85].
[11]Second Edition at pages 154 et seq.
[12]Paragraph [43].
His Honour then considered the specific ways it was said that the independent reviewer Mr Ravech, Q.C. had erred.
The specific complaints dealt with by the independent reviewer and considered by the judge were –
(i)Whilst acting for Mr Te, Mr Kuek improperly withdrew from the criminal trial. This was one of the principal grounds relied upon by VLA, upon which Mr Kuek’s name was to be removed from the referral panel. It was a matter that was dealt with fully by the reviewer. The judge considered the matter and came to the view that it did justify the removal of his name from the referral panel. His Honour was of the opinion that Mr Kuek had no reason for walking out on Mr Te.
(ii)The way Mr Kuek had conducted proceedings whilst acting for Mr Te and also on other occasions during other criminal proceedings was another ground for his removal. His Honour fully considered the matters and in particular referred to observations made by the Full Court in Stefanovski v. Murphy[13] in which members of the Full Court were critical of Mr Kuek’s conduct.
(iii)Criticisms made by Harper, J. in the proceeding Director of Public Prosecutions v. Sarosi[14] in which Harper, J. criticised the conduct of an appeal from the Magistrates' Court and the way it was dealt with by Mr Kuek and counsel. The judge considered the observations made and was of the view that they were matters that were relevant to whether or not a practitioner should be removed from the panel.
[13](1996) 2 V.R. 442 at pp 443 and 453.
[14](2000) VSC 771 at paras [3] and [4].
His Honour concluded that in all the circumstances, the reviewer had not erred in determining to remove Mr Kuek’s name from the panel and also held that if the decision was his, the complaints justified Mr Kuek’s removal from the panel.
His Honour then dealt with the issue of the period of removal of four years. It was submitted on behalf of Mr Kuek that it was clearly excessive and accordingly the discretion had miscarried. The judge considered matters put by Mr Kuek with respect to the issue of the period of removal. His Honour had this to say –
“I agree that four years is a long period of removal and in many cases it could and should well be regarded as excessive. But in this case I do not think it is.”
His Honour stated five reasons why he did not think it should be regarded as excessive.
Accordingly, he was of the view that no error had been demonstrated concerning the exercise of the discretion by the independent reviewer.
He then had this to say –
“If it were my function to determine the period of removal, I tend to think that I would set something less than four years. But I do not think it would be a great number less than four years. In the event however, it is not my task to set the period but to decide whether the period which has been set is so excessive as to be beyond the range reasonably open to be set by the independent reviewer. For the reasons given I do not consider that it is. In the result, I am disposed to decline to set aside the decision to remove the plaintiff’s name and that of the firm from the panel.”
His Honour, on 2 August 2002, ordered that Mr Kuek’s application be dismissed and that he pay the defendants’ costs of the proceeding.
The appeal
In his notice of appeal filed 22 August 2002, Mr Kuek has listed eight grounds. Some of them are extremely general in nature such as grounds 4, 5 and 6. However, in the written and oral submissions of counsel for Mr Kuek, grounds 3, 4, 5 and 6 were abandoned, which leaves two grounds of appeal. They are –
(i)That the learned judge misconstrued the jurisdiction of the court under s.30(18) of the Act and that in the circumstances Mr Kuek was not obliged to establish that Mr Ravech, Q.C. had committed error.
(ii)That if the period of removal set by Mr Ravech, Q.C. was the exercise of a discretionary judgment that in all the circumstances the period was manifestly excessive.
Objection to appeal on nature of the jurisdiction
The main attack on the judge’s orders by Mr Kuek’s counsel was that the judge had misconstrued the jurisdiction of the Court. It was submitted the judge should have dealt with the matter as a hearing de novo and arrived at his decision on the evidence before the Court. Although the initial submission was that it was an appeal de novo, in the course of submissions and based upon the verbiage of s.30(18) it was submitted by Mr Kuek’s counsel that it was an application in the original jurisdiction of the court. The application was to set aside the removal, which required the judge to consider the issue for himself on the evidence before the Court. Ms Mortimer, S.C., counsel for VLA, objected to this course, submitting that because of the concessions made below, it was now too late for Mr Kuek to argue that it was not an appeal in the strict sense. She submitted that Mr Kuek had to obtain leave to argue the ground. She relied upon what the High Court said in Whisprun Pty Ltd v. Dixon[15] After observing that the case formulated by the Court of Appeal had not been run at trial, Gleeson, C.J., McHugh and Gummow, JJ. said:
“Accordingly, this appeal must be allowed. It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross‑examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.”
[15](2003) 200 A.L.R. 447 at paras 50 - 53.
See also Coulton v. Holcombe[16].
[16](1986) 162 C.L.R. 1 at 7.
The nature and extent of the jurisdiction given to the Court by s.30(18) depends upon the construction of the sub-section in the Act. The question is one of law. It does not involve the calling of any evidence. If the Court has in fact misconstrued the meaning of the provision and accordingly not exercised the proper jurisdiction, any order based upon that mistake is an order made without jurisdiction.
However, it is well accepted that where all the facts have been established and the point is one of law, the Court of Appeal may find it expedient and in the interests of justice to consider the matter. See Connecticut Fire Insurance Company v. Kavanagh[17] and Water Board v. Moustakas[18].
[17][1892] A.C. 473 at 480.
[18](1994) 180 C.L.R. 491 at 497.
If the point is a good one, and the judge below proceeded on a misunderstanding of the jurisdiction, then it would be necessary to remit the matter to a judge in the Trial Division to consider and determine the question on the proper basis. However, it is quite clear from what the learned judge said that he did decide the question of removal on both tests which of course meant he made the decision himself. Any further hearing would be confined to the question of the length of the removal. Mr Heaton, Q.C. who appeared with Mr Jonathon Brett for Mr Kuek made it quite clear that the only remedy sought related to the length of period of removal. Any further hearing would be therefore of short duration. Any concern to VLA would hardly impinge upon its corporate mind and any further expense could be the subject of an order for costs.
In my opinion, it is both expedient and in the interests of justice to consider and determine the question.
Mr Heaton submitted however that on a true reading of his Honour’s judgment, it was still open to argue the point on appeal because it was put in issue below. However, I do not accept that submission. A concession was made that the jurisdiction was an appeal in the strict sense. The only issue between the parties was whether the decision to remove was discretionary or not.
It follows that in my opinion the objection taken by VLA should not be upheld and if it is necessary, which I doubt, Mr Kuek should have leave to argue the issue of the jurisdiction on this appeal.
Nature of application to this Court
Prior to 1978, there were three major organisations providing legal assistance in Victoria. The first was administered by the Legal Aid Committee which was set up in 1961 pursuant to statute. The scheme was operated by members of the profession on a voluntary basis. The Committee provided assistance in both civil and criminal matters. The second body was the Public Solicitor’s Office which until 1970 dealt with civil and criminal matters but after 1970 dealt mainly with criminal matters. In addition, there was the Australian Legal Aid Office which was a Commonwealth body and provided aid mainly in federal matters. In 1978 the Legal Aid Commission Act was passed and one of its objects was to provide a statutory body whose function it was to take over the work of the three agencies just mentioned. As the Minister for Transport stated in the Second Reading Speech, “Thus, one of the aims of the proposals in the Bill is to create a ‘one stop’ centre for all persons requiring legal aid.”[19]
[19]See Hansard, 25 October 1978 p.5128.
The Legal Aid Commission Act 1978 which was subsequently renamed to the present title, established the Legal Aid Commission of Victoria, later to become Victoria Legal Aid. It was a body corporate and comprised nine members, three of whom were to be appointed by the Attorney‑General. Section 30 dealt with the right of an assisted person to have the services of a private legal practitioner. The Commission was obliged, pursuant to s.30(1), to prepare and maintain a panel of names of private practitioners. If a private person did not wish to exercise his right to select a practitioner, the Commission was obliged to select a practitioner from the panel of names and to allocate work equitably amongst private practitioners. Private practitioners could nominate to have their names included on the panel. Section 30(5) empowered the Commission to remove the name of a private practitioner, and by sub‑section (6) the Commission was obliged to give written notice to the practitioner, giving reasons for the proposed removal and affording the practitioner an opportunity to be heard and to show cause why removal should not be made.
Section 30(7), when first enacted, which subsequently became s.30(18) of the Act at the time of Mr Kuek’s application, was in these terms –
“(7) A private practitioner aggrieved by . . . removal may, within six months after the receipt of notice of the . . . removal, apply to the Supreme Court for an order setting aside the . . . removal and the Supreme Court may, as it thinks fit, grant the application subject to conditions or unconditionally or postpone the making of an order or dismiss the application.”
The sub-section was subsequently amended. However, it was only amended to define the various types of solicitors and reduce the time limit. Otherwise sub-s.(18) was in similar terms to the original section. For present purposes it can be paraphrased as follows –
“(18) A sole practitioner may
within 28 days after the receipt of notice of the removal apply to the Supreme Court
for an order setting aside the removal
and the Supreme Court may as it thinks fit
grant the application subject to conditions or unconditionally or postpone the making of an order or dismiss the application.”
It is observed that the jurisdiction given to the court is not defined as an appeal. The jurisdiction is to hear and determine an application for an order setting aside the removal.
The jurisdiction given to the court is a creature of statute. Accordingly, the nature and extent of the jurisdiction is to be determined within the four corners of the Act which created the jurisdiction. Of course there would be implied powers to ensure that the court effectually carries out the jurisdiction. By way of example, the power to regulate its own procedure in the absence of any statutory provision. A perusal of the Act reveals there are no express provisions concerning the nature of the jurisdiction.
However, one thing is clear. The jurisdiction is not expressed as appellate. The sub‑section does not use the word “appeal”.
In the few applications that have come before this Court since 1978 it appears to have been assumed by the legal representatives of the parties and the Court that the jurisdiction was in the nature of an appeal. This presumably followed on the basis that a decision had been made by an independent reviewer and any application to this Court would be an appeal from that decision. Warren, J. in MacGregor, supra, decided that it was an appeal in the strict sense.
What was the nature of the jurisdiction? Counsel for Mr Kuek submitted that it was a hearing based on the evidence placed before the Court and the judge made his or her decision on that evidence. On the other hand, counsel for the VLA submitted ultimately that the jurisdiction was a form of review in much the same way as an administrative review and accordingly was restricted to considering whether there were any errors of law and fact made by the original decision maker.
The nature of the application must be answered by determining what was the intention of Parliament. The words of the sub‑section should be construed according to the intention of the Parliament. The primary source of the intention of Parliament is the words of the sub-section itself, construed in their normal and natural meaning, in context and after considering the Act as a whole. This is the basic rule. The basic rule must give way if the court concludes from the words of the statute or any other extrinsic evidence properly admissible that the intention was different to the plain and ordinary meaning of the words. There are a number of rules of construction which may apply, such as the effect of a particular construction leading to an absurd or imprecise result.
Applying the primary rule, it is clear that the application to the Court is not an appeal but an application to the original jurisdiction of the Court. It is trite to observe that the word “appeal” is not used. However, that is not the end of the exercise. It is necessary to consider the Act as a whole and its purpose to determine whether or not its plain meaning should be qualified in any way.
There are a number of matters which support the application of the primary rule.
As at the year 1978, there were a number of Acts of Parliament passed in the preceding 70 or 80 years in this State which gave a right of appeal to this Court from tribunals or bodies of one sort or another. Most, if not all statutes concerning professional and trades bodies which had authority to discipline a member, contained provisions giving a right of appeal to this Court. Invariably, the legislative formula referred to it being “an appeal”, and often referred to it as being an appeal by way of re-hearing, although there were some Acts of Parliament which set out in detail the nature of the appeal. The 1978 volume of Acts of Parliament passed by the Victorian Parliament contains a number of Acts dealing with appeals to this Court.
An early example of the legislative formula is found in s.9(2) of the Medical Act 1933. That sub-section gave the right to a person whose name had been removed from the Register of Medical Practitioners to “appeal from the decision to a judge of the Supreme Court in chambers within three months”. Section 9(3) stated the appeal was to be in the nature of a re-hearing. This provision and similar provisions in other Acts were the subject of discussion as to what was meant by the phrase “an appeal shall be in the nature of a re-hearing”. In Georgousiss v. The Medical Board of Victoria[20] Smith, J. considered the nature of an appeal expressed in that way. Section 11 of the Medical Practitioners Act 1970 was in similar terms and was discussed in Basser v. Medical Board of Victoria[21]. Other examples are s.16 of the Dieticians Registration Act 1958, s.23 of the Psychological Practices Act 1965, s.26(2) of the Dentists Act 1972, and s.10(1) of the Dental Technicians Act 1972. Most of these provisions are in common form and throughout Parliament has used the word “appeal”. In both the Psychological Practices Act and the Dieticians Registration Act the nature of the appeal is described as an inquiry and reference is made to the ordinary jurisdiction of the court.
[20][1957] V.R. 671.
[21][1981] V.R. 953.
Turning to the 1978 volume of statutes it is observed that the following Acts contained appeal provisions to the County Court or this Court where a person’s right to pursue his or her vocation had been removed, and all contained the word “appeal” –
s.19 of the Physiotherapist Act 1978
s.20 of the Surveyors Act 1978
s.14J of the Legal Profession Practice (Discipline) Act 1978
It is pertinent to observe that in respect of the Physiotherapist Act and also the Surveyors Act, the legislature has described the appeal as an inquiry and for that purpose the court “may do all such acts, matters and things relating to the appeal in the same manner and to the same extent as it is empowered to do in the exercise of its ordinary jurisdiction … “. On the other hand the usual appeal provision from the professional bodies described the appeal as an appeal by way of re‑hearing.
Another important piece of legislation was passed in the year 1978 and received the royal assent on the same day as the Legal Aid Commission Act 1978, namely, 19 December 1978. The Act was the Administrative Law Act 1978 which was passed in order to avoid some of the technical problems associated with the prerogative writ common law jurisdiction of the Supreme Court. The jurisdiction is not appellate.
This historical exercise leads to the conclusion that Parliament drew a distinction between appeals, applications and reviews. It provides cogent evidence that when the Parliament used the word “apply” it did not mean appeal. In addition, there are other indicia within the Act itself, which lead to the conclusion that the application to this Court was not an appeal or a review. Part VI of the Legal Aid Commission Act 1978, when passed, provided for the reconsideration and review of decisions made by the Commission, a director, an officer or a committee. Section 34(1) dealt with what was described as “reconsideration of the decision” and s.35 gave the right to review a reconsidered decision. It is clear from those provisions within the same Act that the legislature drew a distinction between the words “apply”, ”reconsideration” and ”review”.
Further, a consideration of the Act of 1978 when first passed reveals the decision to remove a practitioner’s name from the panel was a matter for the Legal Aid Commission itself. See s.30(5). However, before removing the person, the Commission was obliged to give notice and give the practitioner an opportunity to be heard. How the Commission was to go about that exercise was not stated. There were no express provisions relating to the procedure to be followed in giving the practitioner a reasonable opportunity to be heard and to show cause. Given that there may not have been any transcript and given that there was no obligation to give reasons (although query whether s.10 of the Administrative Law Act applied), in considering the application to the Supreme Court back in 1978, and taking into account there were no express provisions concerning the hearing, how was it to be held? What constituted the record before the Commission? The only effective way to enable the aggrieved practitioner to make his or her application to this court was to place all relevant material before the court so that the court could make the decision. The absence of express provisions relating to such matters has been held to be some evidence that an application or an appeal is in the form of a re‑hearing de novo. See Builders Licensing Board v. Sperway Constructions (Syd) Pty Ltd and anor[22]. As noted, the section was later amended giving the independent reviewer the task of deciding the question if the legal practitioner sought to be heard.
[22](1976) 135 C.L.R. 616 at 621 – 22.
Finally, referring to the legislation which applied to Mr Kuek’s application, the legislation gave a practitioner the right to apply to this Court from both a decision made by the VLA and the independent reviewer. The decision to remove the name from the panel is first proposed by the VLA. If the practitioner responds to the notice that he or she wishes to be heard, the matter is then referred to the independent reviewer whose decision determines whether he or she does or does not remain on the panel. However, it is open to the practitioner to not seek to show cause before the independent reviewer, but to make application to the court. If the practitioner proceeds on that basis the decision of removal is made by VLA. The form of the decision is not prescribed in any way and could comprise merely the letter stating the reasons for the proposed removal. There may be no record of any evidence relied on by VLA. It follows that in those circumstances, a court hearing an application under s.30(18) would not have the evidence and would only have the letter proposing the removal. One would assume there would be a later letter stating the name had been removed. The difficulties inherent in such a procedure lead to the conclusion that it would not be feasible to hear the application as an appeal in the strict sense. The jurisdiction conferred on the judge is to determine whether the removal should be set aside and this would be exercised in accordance with the normal judicial process of the court.
Ms Mortimer S.C. for VLA relied upon three submissions against that construction of the sub-section. They were –
· That the decision of Warren, J. in MacGregor v. Victoria Legal Aid concerning the nature of the application was correct and accordingly it was an appeal in the strict sense.
· A consideration of various sections in the Act led to the conclusion it was a restricted hearing.
· That the object of the legislative scheme dealing with public monies for the provision of legal services placed a judge in a difficult position to arrive at a decision whether or not a practitioner’s name should be removed from the panel.
It is convenient first to consider the second submission. Ms Mortimer drew attention to the objectives set out in s.4. She particularly emphasised the first two objectives which are –
“(a)To provide legal aid in the most effective, economic and efficient manner;
(b)to manage its resources to make legal aid available at a reasonable cost to the community and on an equitable basis throughout the State.”
Sections 6 and 7 deal with the functions, powers and duty of VLA It is noted that the function is to provide legal aid and to control and administer the fund. The duty is to ensure that legal aid is provided in the most effective, efficient and economic manner. Section 23 deals with applications for legal assistance, s.24 deals with the circumstances in which legal assistance is to be provided, and s.30 deals with the selection of a practitioner. Section 30(5) obliges VLA to prepare and maintain panels of names of lawyers and if a name is included, so too are all employees of that firm or individual. Section 30(1) gives the right to an assisted person to select a lawyer from the names on a referral panel and if he or she does not exercise that right VLA will select a name. Section 30(3) obliges VLA to give effect to the interests of the assisted person but subject to that it must allocate work equitably amongst the lawyers.
Section 30(8) gives VLA the right to remove, for a specified period or otherwise, a name from the referral panel. Sub‑section (9) lists some of the examples which may justify the removal of a lawyer from the panel but the list is not exhaustive and clearly the powers of VLA to remove are wide. However, before taking that step VLA is obliged under s.30(10) to give written notice to the lawyer, setting out the reasons for the proposed removal, and afford the lawyer an opportunity to be heard and to show cause. If the lawyer exercises the right to be heard, s.30(12) obliges the chairperson of the referral panel to appoint an independent reviewer to hear and determine the matter. It is noted that the independent reviewer regulates his or her procedure, see s.30(13), and once the reviewer has made a decision, he or she must advise VLA accordingly. Section 30(15) obliges VLA to give notice of any final determination to the lawyer concerned. The independent reviewer is obliged to keep records of the determinations and proceedings under the section – see s.30(16). There are no regulations dealing with the procedure to be followed by the independent reviewer, nor are there any express provisions of the Act concerning the review other than the reviewer must keep records of his or her determination and proceeding under the section.
It was submitted that these sections led to the conclusion that s.30(18) was dealing with a restricted application to the court and it was not a hearing de novo. In my opinion, there is nothing in the provisions relied upon by Ms Mortimer which would lead to that conclusion and would in any way qualify the plain words used in s.30(18). In addition, as already pointed out, other provisions such as those found in Part VI of the Act which deal with reconsideration and review of decisions make it clear that the legislature was drawing a distinction between an application to the court and a reconsideration or a review of the decision.
Ms Mortimer also relied on the concluding words of s.30(18). These words deal with what the court can do on an application. The relevant words are –
“… and the Supreme Court may, as it thinks fit, grant the application subject to conditions or unconditionally or postpone the making of an order or dismiss the application.”
There does not appear to be any express power to vary the effect of a removal order and in particular the period of removal. This difficulty was noted by Mandie, J. in Yianoulatos and ors v. Victoria Legal Aid and anor[23] where his Honour observed[24] –
“I should say that there was some debate before me about what powers the Supreme Court had under s.30(18) and I do not propose to resolve that debate – in particular whether there was power to vary determinations as opposed to either simply setting them aside or dismissing the application. The words used in the section are ill adapted to give the court a clear power of variation. The drafting is unusual. It may be or may not be the case that the words ‘subject to conditions’ include a power to vary, but I think that the way to achieve that result is to impose a condition on the setting aside of the removal, so I would order that the removal of the plaintiffs from the panel be set aside conditional on the plaintiffs accepting in writing their removal from the panel by the VLA for a period expiring on 1 November 1999 (in default, application dismissed).”
[23][1998] VSC 163.
[24]At p.7.
Warren, J. in MacGregor also referred to the difficulties involved and followed the approach of Mandie, J. Her Honour made an order which had the effect of varying the period of removal.
The words are unusual and there is no express provision to deal with a variation. It was submitted that those concluding words qualify the jurisdiction of the Court to such an extent that it indicates a legislative intention that the application should be a restricted one somewhat in the nature of a review limited to reviewing what had taken place. In my opinion, the concluding words of s.30(18) do not qualify the plain meaning of an application to the Court. The difficulties noted by Mandie and Warren, JJ. apply equally to any form of application under s.30(18) whether it be an appeal in the strict sense, an appeal by way of re‑hearing, or an application to the court or a form of review. The restriction on the powers would apply whatever the nature of the application was.
A person aggrieved by a decision of either VLA or the independent reviewer removing his or her name from the referral panel will be aggrieved in respect to one or both of two issues. The first concerns the removal and the second, if a period is specified, the period of the removal. The aggrieved person may come to court seeking to overturn both questions. The aggrieved person will seek a remedy to correct the basis of his or her complaint. When analysed in that way, in my view it is not open to argue that the wording of the available remedy s.30(18) leads to the conclusion that it was the intention of Parliament that the application should be restricted to deciding the matter on the evidence before the reviewer and upon proving error. If it was a review limited to showing error, the same problem would arise if this Court, acting on the review, came to the conclusion that an error had been demonstrated in relation to the period of removal and wished to give effect to that decision.
In order to give proper effect to a decision that the period of removal be reduced, the concluding words of s.30(18) must be construed to provide a remedy which justice requires. In my opinion, the court could grant the application but make it subject to conditions to ensure that the removal continues for a specified period. The conditions could be moulded to achieve that effect. The court should not construe the legislative intention to produce an absurd result. Here Parliament intended that an aggrieved person should have a right to come to this Court, and if the basis of the grievance relates to the period of removal, it could not be said that it was the intention of Parliament that if the Court came to a view the period was wrong, there was no remedy available.
In my opinion, there is nothing in the Act as a whole which alters the plain meaning of the words used.
Dealing with the first submission, in my respectful opinion, the decision of Warren, J. in MacGregor v. Victoria Legal Aid that the application is an appeal in the strict sense is wrong. The jurisdiction is not appellate. The learned judge concluded that it was an appeal in the strict sense in matters both as to fact and to law. In support of her conclusion she relied upon three matters. First, the wording in sub-section (18). With respect, the wording is against a conclusion that it is an appeal. The second reason was that although the Act made no provision for the procedure of a review, nevertheless the reviewer applied the fundamental principles of procedural fairness, the hearing was recorded and reasons were given for the determination. Referring to what Mason, J. said in Builders Licensing Board v. Sperway Constructions (Syd) Pty Ltd and anor[25], her Honour concluded that the nature of the proceeding before the court was an appeal in the strict sense. At p.621 Mason, J. discussed the effect of a right of appeal being given to a court from a decision of an administrative authority. He referred to the omission of express provisions concerning the hearing below which would lead to the conclusion that the later hearing was a hearing do novo. He said:
“The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo.”
(Emphasis added.)
[25](1976) 135 C.L.R. 616 at 621-2.
Her Honour noted that the reviewer applied principles of procedural fairness, the hearing was recorded and reasons were given. Her Honour concluded that it follows that it is an appeal in the strict sense. The issue is one of statutory interpretation, and what the reviewer may or may not have done pursuant to the power to regulate his or her own procedure could not, in my opinion, have effect upon the intention of Parliament. Statutory provisions dealing with the matters referred to by Mason, J. may lead to the conclusion which he stated. There were no statutory provisions in s.30 which would lead to that conclusion. As his Honour said –
“But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or a quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing.”[26]
[26]At pp.621-2.
In my respectful opinion, her Honour’s second reason does not support her conclusion.
Warren, J.’s third reason for concluding that it was a strict appeal was that the parties had not in fact come before the court ready to present the matter as a re-hearing. In my respectful opinion, this is irrelevant to what was the intention of Parliament. In my opinion, her Honour’s conclusion was wrong.
The final submission was that it would be difficult for a judge of this Court to make a decision in respect of the provision of public funds and that the VLA and the independent reviewer were in a better position because of their experience to decide whether or not public funds should be paid to legal practitioners providing services to litigants. The argument was that those two bodies were in a far better position than the court, and accordingly the court should only interfere where clear error was established. I do not accept this argument. The court is often required to make decisions involving the court placing itself in the position of a particular disciplinary body. The court does not have difficulty in making a decision based upon the evidence placed before it. Further, judges of this Court would have a very good understanding of the obligations of lawyers in the conduct of litigation and the importance of not wasting public funds.
My conclusion that it is an application in the original jurisdiction is reinforced when first, one considers the effect upon a solicitor’s reputation and standing by such a decision. He should be given every opportunity to meet the charge against him, including the right to place any relevant evidence before the court. Secondly, the principles concerning an appeal from a decision of an administrative authority support the conclusion. The general rule is that an appeal from an administrative decision is by way of re-hearing. As Mason, J. said in Builders Licensing Board v. Sperway Constructions (Syd) Pty Ltd and anor[27], there is no absolute rule to that effect, but it is clearly a presumption.
[27]Supra at 621.
In Re Coldham and ors; Ex parte Brideson [No. 2][28], Deane, Gaudron and McHugh, JJ. said –
“ … it is well settled that, when the legislature gives a court the power to review or hear an ‘appeal’ against the decision of an administrative body, a presumption arises that the court is to exercise original jurisdiction and to determine the matter on the evidence and law applicable as at the date of the curial proceedings: see Ex parte Australian Sporting Club Ltd; Re Dash[29].
[28](1990) 170 C.L.R. 267 at 273.
[29](1947) 47 S.R. (N.S.W.) 283.
But as their Honours went on to say, the nature of the appeal must ultimately depend upon the terms of the statute conferring the right. This presumption provides some support for the conclusion that it was the intention of Parliament that the hearing before the court should be a hearing de novo. But in the end it is a question of the legislative intention.
In my opinion, Mr Kuek had the burden in his application to the court, to persuade the court that the determination to remove him should be set aside. It was incumbent upon him to place evidence before the court upon which the court could decide whether the determination to remove him should be set aside. It is not a question of whether the original decision was right or wrong, but whether on the evidence before the court it ought to set aside the determination to remove him. This involved the judge on the application considering all the evidence, including evidence adduced by the other parties to the application. The judge would decide whether he or she was persuaded that the determination to remove him should be set aside. In reaching that decision the judge would take into account all the circumstances and in particular the objects of the Legal Aid scheme. Clearly it is contrary to the objects of the scheme for any practitioner to prolong proceedings, to take points without merit and to interrupt a trial without good reason. In reaching a conclusion, in my opinion the judge should take into account the decisions made by both the VLA and the independent reviewer and give them such weight as he or she thinks is appropriate in the circumstances. I say this because of their experience. That is not to say that in the end the judge is a rubber stamp. I do not believe that that is the role of the judge. In the end it is his or her decision as to whether the determination to remove the solicitor should be set aside.
The learned trial judge considered the matter himself and came to the view that on the evidence before him, Mr Kuek had failed to persuade him that the determination to remove his name from the panel should be set aside.
However, the learned judge went on to consider the period of the removal as if it was an appeal from a discretionary judgment. In my respectful opinion, that was wrong. This was a matter that the learned judge had to decide.
His Honour did say that if he had to decide the question himself, a period of removal less than four years would have been the appropriate period.
In my opinion, the approach of the judge in respect to the question of the period was wrong. He did not exercise the jurisdiction given to the court. It would follow that Mr Kuek is entitled to have the question considered by way of a hearing de novo.
Manifest excessiveness
This was the alternative ground relied upon, but in the circumstances it is unnecessary to decide it.
Conclusion
In my opinion, the learned trial judge was wrong in considering the question of the period of removal as if it was an appeal from a discretionary judgment. In my opinion, he should have decided the matter himself afresh, no doubt giving due weight to the views expressed by both the VLA and the reviewer. But in the end the decision was one for him. In the course of the appeal, it was suggested to the parties that they should attempt to agree, if the Court was of the view that the trial judge should have decided the period of removal himself, that the appeal be allowed and the substitution of an order that Mr Kuek’s name be removed for a period of something less than four years. The actual form of the order would have to be determined giving effect to the provisions of s.30(18). As things have turned out, Mr Kuek’s removal has exceeded three years. The trial judge was of the view that the period should be less than four years. Unfortunately, the parties could not agree.
The term of four years was fixed on 5 October 2001 and will expire in October 2005. Mr Kuek’s name has now been removed from the referral panel for a period in excess of three years and five months. The costs involved in the review process which took an inordinate length of time, the hearing before the judge at first instance and this appeal are now substantial and in light of what the learned judge said at first instance about the period of removal and a consideration of the relevant matters, it is my opinion that this Court should exercise its power to decide the period of removal which the judge at first instance should have decided. I think in the circumstances that the period of removal should be set aside and in lieu thereof a period of three years and five months’ removal be substituted. This Court clearly has power under 30(18) and in my opinion it should exercise it.
I propose the following orders –
(i)that the appeal be allowed;
(ii)that the orders made on 2 May 2002 whereby the plaintiff’s application to set aside the removal of his name from the referral panel was dismissed and he was ordered to pay the defendants’ costs of the proceeding, be set aside and in lieu thereof order that the removal of the plaintiff’s name from the referral panel dated 5 October 2001 be set aside conditional on the plaintiff accepting in writing that his name be removed from the referral panel by the VLA for a period expiring on 1 March 2005.
It will be necessary to hear the parties on the questions of costs below and on appeal.
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