MCBRIDE and LEGAL SERVICES AND COMPLAINTS COMMITTEE (WA) - [2023] WASAT 107

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
CITATION:   MCBRIDE and LEGAL SERVICES AND COMPLAINTS COMMITTEE (WA) [2023] WASAT 107
MEMBER:   JUDGE K GLANCY, DEPUTY PRESIDENT
MR J O'SULLIVAN, SENIOR MEMBER
MR R POVEY, MEMBER

HEARD:   12 OCTOBER 2023
DELIVERED          :   9 NOVEMBER 2023
FILE NO/S:   VR 65 of 2022
BETWEEN:   PHILLIP MCBRIDE
First Applicant
LISA MCBRIDE
Second Applicant
AND
LEGAL SERVICES AND COMPLAINTS COMMITTEE (WA)
Respondent

Catchwords:

Vocational regulation - Legal practitioners - Application for review of decision dismissing complaints about legal practitioners - Whether original decision operative - Jurisdictional question - Transitional provisions

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s 3(3), s 25(1)(a), s25(4)
Customs Act 1901 (Cth), s164, s 273GA(1), s 237GA(2)
Interpretation Act 1901 (Cth), s 33(1)
Legal Profession Act 2008 (WA), s 410(1)(e), s 415, s 415(1)(b), s 415 (2)(c), s421, s 424(1), s 425, s 435, s 435(2)(a)
Legal Profession Uniform Law (WA), s 312, s 313, s 314, s 415(1)(b)
Legal Profession Uniform Law Application Act 2022 (WA), s 6(1), s 6(2), s 20, s 57, s 269
Social Services Act 1947 (Cth), s 14, s 15
State Administrative Tribunal Act 2004 (WA), s 3, s 21, s 21(5), s 22(3), s 23, s 26, s 29(5), s 31, s 31(1), s 31(3), s 33
Transport Accident Act 1986 (Vic), s 67, s 68, s 70, s 77, s 77(1), s 77(4), s 78, s 80

Result:

The Tribunal lacks jurisdiction to determine the application for review. The application for review is therefore dismissed.

Category: B

Representation:

Counsel:

First Applicant	:	Mr P Vogel
Second Applicant	:	Mr P Vogel
Respondent	:	Mr CR Bailey & Mr FX Hall

Solicitors:

First Applicant	:	Peter Vogel Legal Pty Ltd
Second Applicant	:	Peter Vogel Legal Pty Ltd
Respondent	:	In Person

Case(s) referred to in decision(s):

Armstrong and Medical Board of Australia [2022] WASAT 76
Lindrea v TAC [2001] VSC 463
Mohammadi v Bethune [2019] WASCA 98
Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Payment Board [2021] WASCA 208
Re Patricia Ann Gee and Director General of Social Services (1981) 3 ALD 132
Uniway and CEO of Customs [1999] AATA 208
Z V Charisteas and Legal Services Complaints Committee [2023] WASAT 48.

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction and outcome

By application made on 27 July 2022 the First and Second Applicants (the Applicants) Phillip and Lisa McBride, seek a review of a decision made by the delegate of the Legal Profession Complaints Committee (LPCC) to dismiss a complaint made in connection with legal advice provided to them by solicitors from the firm of Forbes Kirby and two barristers, who had each been separately briefed by the relevant solicitors at Forbes Kirby about what legal action might be taken in relation to their purchase of a property in Port Hedland.
As a preliminary matter, we have considered and determined the question of whether the State Administrative Tribunal (Tribunal) has jurisdiction to conduct a review.
The Respondent says that the Tribunal has no jurisdiction to conduct a review and seeks to have the Tribunal make an order dismissing the application with no order as to costs.
The issue arises in the following circumstances. The LPCC's delegate informed the Applicants that he had dismissed their complaint by letter dated 28 June 2022 (the Original Decision). The Applicants made the application for review to the Tribunal on 27 July 2022. On 23 August 2022, the Tribunal made orders by consent inviting the Respondent to reconsider its decision and on 27 February 2023 the Respondent, (by then called the Legal Services and Complaints Committee (LSCC))[1] reconsidered the complaint (the Complaint) and made another decision in relation to it (the Second Decision). The Respondent's Second Decision was to dismiss each item of the Complaint on the ground that it was misconceived and to find that each item of the Complaint was unreasonable.
[1] The LSCC was established by s 57 of the Legal Profession Uniform Law Application Act 2022 (WA) (Application Act). Section 269 of the Application Act provides that LPCC continues as the LSCC under the Application Act.
The parties accept that where a complaint was made under the Legal Profession Act 2008 (WA) (LP Act) prior to 1 July 2022 but not resolved by the LPCC or its delegate before that date, the LP Act continues to apply in relation to the determination of the complaint by the LSCC or its delegate. The parties also agree that where a decision in relation to a complaint was made before 1 July 2022 then the transitional provisions of the Legal Profession Uniform Law Application Act2022 (WA) (Application Act) preserve an entitlement to review in the Tribunal.
But importantly, in this case, the parties also agree that where the LSCC or its delegate make a decision in relation to such a complaint after 1 July 2022, a complainant no longer has an entitlement to review of that decision in the Tribunal. That was accepted to be the result of the operation of the transitional provisions of the Application Act, which commenced on 1 July 2022.
The Applicants submit that, in this case, the Tribunal should find as a matter of construction that the Second Decision, although made on 27 February 2023, was merely the affirmation of the decision of 28 June 2022 so that by operation of s 31(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) their review remains on foot. The Respondent submits that the Applicants have no right of review for two reasons. First, because the Original Decision was invalid and of no force and effect and the only decision made was the Second Decision and alternatively, because the Second Decision was not merely the affirmation of the Original Decision with the result that the decision on review was the Second Decision which, having been made after 1 July 2022, the Tribunal has no jurisdiction to review.
For the reasons which follow we find that the Tribunal has no jurisdiction to deal with the review application.

Factual background

As we have already said, the Applicants purchased a property in Port Hedland some years ago. They came to regret doing so and sought legal advice from solicitors at the Firm about what causes of action they may have against anybody in relation to the purchase.
Ultimately those solicitors at the Firm briefed each of the barristers to provide their/an opinion (i.e. not a joint opinion) about the issue.
The Applicants were not happy with the conduct of the solicitors from the Firm or the barristers in connection with the provisions to them of the legal advice sought.
On 12 August 2021 Mr Brian McBride, (the First Applicant's father) sent an email to the LPCC on the Applicants behalf in which he briefly set out the history of the purchase of the property by his family and the fact that the family had subsequently engaged a 'firm of lawyers' who had subsequently 'engaged a Perth barrister (SC)' to provide 'advice about the matter'.[2] No details of the firm involved, the solicitors at the firm or the name of the barrister were provided. Mr McBride's email said that, for various reasons, they felt the barristers' opinions were inadequate. The email concluded:[3]
We now seek some dispute resolution through the LPCC and I believe such service is available. Kindly advise us if you can assist, or in the alternative, how we proceed to a full on complaint about negligence and unsatisfactory professional services by both the lawyer and the barrister.
[2] Exhibit 2, page 1.
[3] Exhibit 2, page 1.
It is not said by the Applicants that the email of 12 August constituted a Complaint for the purposes of the LP Act.
Rather, the Complaint was made by provision to the LPCC of a document dated 27 September 2021 which was headed Submission to Legal Profession Complaints Committee (LPCC) REF – Enquiry (R685/21) – 27 September 2021.[4]
[4] Exhibit 2, pages 2 – 12.
On 6 October 2021, the Applicants consented in writing to the LPCC communicating with Mr McBride in relation to the Complaint.[5]
[5] Exhibit 2, page 13.
By letter dated 28 June 2022, the delegate of the LPCC wrote to Mr McBride and said that he had made a decision to dismiss the Complaint against Forbes Kirby pursuant to s 415(1)(b) of the LP Act and had decided 'not to take the matter any further in relation to the barristers'.[6] We refer to this decision as the Original Decision for convenience although we appreciate that the respondent contends that it is void ab initio.
[6] Exhibit 2, pages 14 -16.
On 1 July 2022, the Application Act commenced[7] and the LP Act was repealed.[8] The LSCC was established by s 57 of the Application Act. Section 269 provides that LPCC continues as the LSCC under the Application Act.
[7] Legal Profession Uniform Law Application Act (WA) 2022; Commencement proclamation 2022, dated 30 June 2022.
[8] Application Act, s 260(a).
On 27 July 2022, the Applicants commenced the review proceeding pursuant to s 319 of the Application Act.
On 17 August 2022, the LSCC wrote to the Applicants, via Mr McBride, setting out its view that the decision of 28 June 2022 was invalid and of no effect because the Committee had no power to determine a complaint against a law practice and inviting the complainant to identify the particular practitioners at Forbes Kirby whose conduct the Applicants claimed constituted professional misconduct or unsatisfactory professional conduct.[9] In that letter, the LSCC also informed Mr McBride that once that additional information was received it would recommence its handling of the Complaint with a view to making a fresh decision and told the Applicants that there would be no right of review to the Tribunal from any new decision because of the operation of Part 16 Division 10 of the Application Act.
[9] Exhibit 2, pages 17 – 18.
Ultimately, on 23 August 2022, the Tribunal made orders in the review proceedings by consent by which the Respondent was invited to reconsider its decision pursuant to s 31(1) of the SAT Act.
Following that invitation, the Applicants and the Respondent communicated about the Complaint and it was expanded upon by the Applicants.
On 27 February 2023, the LSCC, by letter to Mr McBride, informed the Applicants of the decision it had reached following reconsideration.[10] That decision was to dismiss the entirety of the Complaint pursuant to s 415(1)(b) of the Legal Profession Uniform Law (WA) (Uniform Law)[11] on the basis that each item of Complaint was misconceived. The LSCC also found that each item of complaint was unreasonable within the meaning of s 435(2)(a) of the LP Act. We have referred to that decision as the Second Decision although we appreciate that the Respondent says that it is the only valid decision it has made in relation to the Applicants' Complaint.
[10] Exhibit 2, pages 35 - 66.
[11] Applied as a law of Western Australia by force of s 6(2) of the Application Act. The Uniform Law is identified in s 6(1) of the Application Act.

Regime for complaints made under the LP Act

While the LP Act has been repealed and the Application Act and the Uniform Law now apply, it is necessary to consider how complaints as to the conduct of legal practitioner were dealt with under the LP Act in order to resolve this preliminary question. While the LP Act has been repealed, for simplicity's sake we have used the present tense in describing the operation of the LP Act's provisions.
Under the LP Act, complaints against practitioners are dealt with under Part 13 of that Act.
In Division 2 of Part 13 the terms 'professional misconduct' and 'unsatisfactory professional conduct' are defined.
The making of complaints is dealt with in Division 4 of Part 13 of the LP Act. Among those who can make complaints about the conduct of a legal practitioner is 'any other person who has or had a direct personal interest in the matters alleged in the complaint': s 410(1)(e).
Section 410 provides that a complaint may be made directly to the Law Complaints Officer (LCO), that complaints should normally be in writing but that the LCO or the LPCC may formulate in writing an oral complaint received. It also provides that the complaint must identify the complainant, the legal practitioner about whom the complaint is made (if possible) and describe the alleged conduct the subject of the complaint.
Section 410(1) sets out who may make a complaint. Among others, a complaint may be made by any person who has or had direct personal interest in the matters alleged in the complaint.[12] Section 410(5) provides that a complaint may be made by the complainant personally, or by a legal practitioner on behalf of the complainant, or where the person who may have been the complainant has died or is otherwise unable to act, by or on behalf of that person by a personal representative or any relative or other representative of that person.
[12] LP Act s410(1)(e).
Division 4 of Part 13 of the LP Act also includes s 415. That section deals with summary dismissal of a complaint on various grounds, including that the complaint is vexatious, misconceived, frivolous or lacking in substance. Section 415(2)(c) requires the LPCC to summarily dismiss a complaint if it is not one that the LPCC has the power to deal with.
By Division 6 of the LP Act, the LPCC is granted powers to investigate a complaint. Section 421 provides for investigations of the LPCC's own initiative and requires every complaint to be investigated unless it is referred to the Tribunal, dismissed or withdrawn or is subject to mediation.
Division 7 sets out a range of decisions the LPCC is authorised to make following an investigation of a complaint. Section 424(1) provides:
After an investigation under s 421 is completed the, LPCC must –
(a)in the case of the investigation of a complaint, dismiss the complaint under s 425 or, in the case of an investigation on the initiative of the LPCC, decide to take no further action; or
(b)take action under s 426; or
(c)refer the matter to the Tribunal under s 428.
Section 425 of the LP Act deals with the dismissal of complaints following investigation. It provides that the LPCC may dismiss a complaint after an investigation is completed if it is satisfied that there is no reasonable likelihood that the practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct or if it is satisfied that it is in the public interest to do so.
Division 8 is also included in Part 13 of the LP Act. Section 435 is in Division 8. It provides:
(1)Subject to subsection (2), a person aggrieved by –
(a)a decision of the LPCC to dismiss a complaint; or
(b)a decision made by the LPCC under s 426,
may apply to the Tribunal for a review of the decision.
(2)If the LPCC, in its reasons for decision specifically finds the complaint –
(a)to be trivial, unreasonable, vexatious or frivolous; or
(b)in the case of a complaint purporting to be made under s 410(1)(e), to be a matter in which the complainant does not have, or did not have, a direct personal interest,
the person aggrieved cannot apply to the State Administrative Tribunal for a review of the decision without leave of the Tribunal.

Resolution of complaints under the Uniform Law

The complaint regime is different under the Uniform Law.[13]
[13] Applied as a law of Western Australia by force of s 6(2) of the Application Act. The Uniform Law is identified in s 6(1) of the Application Act.
Section 312 of the Uniform Law provides that '[t]he determination of a complaint or matter by the designated local regulatory authority under this Chapter is final, except as provided by this Part'.
That Part of the Uniform Law then contains s 313, which permits a designated local regulatory authority (in this case the Respondent) to conduct an internal review of a decision at its absolute discretion and s 314 which provides a right of a review to the relevant practitioner.[14]
[14] i.e the practitioner about whose conduct a complaint was made.
From those provisions we can see that, unlike the position under the LP Act, there is no right of review from a decision of the LSCC conferred upon a complainant who is aggrieved by the decision.

The Issues

The issues to be determined are what is the decision on review and when it is to be regarded as having been made.
This is because the parties accept that if the decision on review is the Second Decision, then because it was made on 27 February 2023, there is no jurisdiction for the Tribunal to review it and the application for review must be dismissed. This is because they accept there is no right of review from decisions to dismiss a complaint which was made under the LP Act before 1 July 2022 and dismissed under s 415 of the LP Act after 1 July 2022 (i.e. after the commencement of the Application Act).
In that respect the parties accept the correctness of the decision made by the Tribunal in ZV Charisteas and Legal Servicecs and Complaints Committee (Charisteas).[15]
[15] Z V Charisteas and Legal Services Complaints Committee [2023] WASAT 48 at [45] - [75].

The transitional provisions in the Application Act

Section 313 of the Application Act extends the power of dismissal under s 415 and s 425 of the LP Act to allow the Respondent to make a decision after 1 July 2022 to dismiss a complaint lodged with the (then called) LPCC prior to that time. We agree with the Tribunal's finding in Z V Charisteas[16] to that effect.
[16] (Charisteas) at [47].
We also find, consistent with the decision in Charisteas, and for the same reasons set out by the Tribunal in that case at [45] - [75], which we adopt without repeating, that the Application Act does not preserve a right of review by the Tribunal for the decision made after 1 July 2022 by force of s 313 of the Application Act. As the Tribunal found in that case the scope and purpose of s 313 goes no further than to empower the Respondent to 'deal with' a complaint made under the provisions of the LP Act prior to 1 July 2022, which, at that date, remains incomplete. It also provides that, when doing so, the Respondent may do so 'under the provisions' of the LP Act as if they have not been repealed. The text of s 313 of the Application Act does not either in its terms or by implication continue the operation of s 435 of the LP Act or otherwise confer jurisdiction on the Tribunal to review a decision of the Respondent made after 1 July 2022.

The Respondent's submissions

The Respondent submits that the Original Decision was invalid and of no effect and the only valid decision it has made in relation to the Applicants' Complaint is, therefore, the Second Decision, with the result that there is no jurisdiction for the Tribunal to review it.
In the alternative, the Respondent submits that if the Original Decision was valid, then the Second Decision must be construed as a decision which is the substitution of a new decision for the Original Decision and which, therefore, necessarily set aside the Original Decision. The Respondent submits that it follows from that conclusion, that the effect of s 31(3) of the SAT Act is that the decision on review is the Second Decision and that, because it was made and communicated to the Applicants by letter dated 27 February 2023, the Tribunal has no jurisdiction to review it.
The Respondent submits that the Second Decision must be construed as a decision which substitutes for the Original Decision given the substantive differences between the Original and Second Decisions. Those differences include:
(a)that the Original Decision was 3 pages whereas the Second Decision was 32 pages long;
(b)the Original Decision deals with a complaint against the Firm whereas the Second Decision addresses specific allegations made against the three named solicitors of the Firm and the two barristers;
(c)the Second Decision deals with issues which were not raised in the initial Complaint and which were identified by the Applicants as conduct they considered could be regarded as professional misconduct or unsatisfactory professional conduct in communications between the LSCC and the Applicants after the consent orders inviting reconsideration of the LPCC's delegate's decision had been made;
(d)the Original Decision disposed of the Complaint on the basis that it was misconceived whereas the Second Decision also identified that the decision-maker had found each of the items of complaint were unreasonable.

The Applicants' submissions

The Applicants submit that the Original Decision was valid and that the Second Decision was merely the affirmation of the Original Decision to dismiss the Complaint. The Applicants submit that, having regard to s 31(3) of the SAT Act, the affirmation of the Original Decision means that the decision on review is the Original Decision, with the consequence that the Tribunal has jurisdiction to review it.
The Applicants submit that the Application Act must be interpreted so as to prevent the possibility that the LSCC, of its own motion, could reconsider every decision it had made prior to 1 July 2022 and make a substituted decision for the purpose of defeating a complainant's right of review in the Tribunal.
The Applicants submit that the Application Act should be interpreted so as to preserve the entitlement to a review of a decision in circumstances where the LPCC had resolved the Complaint before the Application Act commenced and had, through its own error, incorrectly expressed the result it has reached. The Applicant submitted that to do otherwise would be unfair.
Finally, the Applicant submits that the President promised, in an email to the Applicants from her Associate dated 22 August 2022,[17] that they would continue to have a right to review if they consented to the making of an order inviting the Respondent to reconsider its decision under s 31(1) of the SAT Act and that promise ought to be taken into account in interpreting the transitional provisions of the Application Act.
[17] Exhibit 1, page 23.

Resolution

The last of the Applicant's submissions referred to at [49] can be readily disposed of. Even if the President's Associate's email could be taken to be a promise that the Applicants would have a right to review any varied or substituted decision made by the Respondent (a proposition which we do not accept), the President cannot confer upon the Tribunal jurisdiction which it does not have. The Tribunal's jurisdiction is conferred only by the SAT Act and the relevant enabling Act and its jurisdiction is determined by construing those Acts. As a consequence, it is not necessary for us to say more about how the President's Associate's email should be interpreted.
Further, there is no principle of statutory interpretation, indeed the Applicants' counsel could not point to one, which permits legislation which is of general application to be interpreted by reference to a communication made on behalf of a decision-maker.
As for the Applicants' submission at [48], it too can be readily dispensed with.
Section 26 of the SAT Act provides that after the commencement of a proceeding for the review of a decision a decision-maker cannot:
(a)vary the decision; or
(b)set aside the decision and substitute its new decision,
unless –
(c)that is permitted by the enabling Act; or
(d)the parties to the proceeding consent; or
(e)the decision-maker is invited under s 31 to reconsider the decision.
Under the LP Act, there was no entitlement for the LPCC to internally review a decision to dismiss a complaint under s 415 of the LP Act. Under s 313 of the Uniform Law, the LSCC may internally review a decision made by the 'designated local regulatory authority', being the Board or the LSCC[18] and either confirm the original decision or make a new decision or refer the matter back to the decision-maker.
[18] As identified in s 20 of the Application Act.
However, when continuing to deal with a complaint under the LP Act by operation of the transitional provisions of the Application Act there is no entitlement for the LPCC or its delegate to internally review a decision outside of authority to do so upon the Tribunal's invitation to reconsider it made under s 31(1) of the SAT Act. In contrast, while there is an entitlement to internally review a decision made under the Uniform Law there is no entitlement for a complainant to have a decision to dismiss a complaint under the Uniform Law reviewed by the Tribunal. So, the mischief which the Applicant says must be avoided by interpreting the legislation and characterising the Second Decision in a way which results in the preservation of an entitlement to review in the Tribunal simply does not arise.
Further, the LSCC cannot lawfully exercise its powers for an improper purpose. The Respondent's posited own motion reconsideration of a decision by the LSCC for the express purpose of defeating a right of review by the Tribunal would be an act done for an improper purpose. Where a person with a sufficient interest in the matters considers that the LSCC has acted in such a way there are remedies available to them. The meaning of the SAT Act, the Uniform Law and the transitional provisions of the Application Act and the construction of the Second Decision should not be impermissibly strained so as to guard against what would be, in any event, impermissible acts.
The remainder of the parties' submissions need to be considered in light of s 31 of the SAT Act. We therefore set it out in full.
31.Tribunal may invite decision-maker to reconsider decision
(1)At any stage of a proceeding for a review of a reviewable decision, the Tribunal may invite the decision-maker to reconsider the decision.
(2)Upon being invited by the Tribunal to reconsider the reviewable decision, the decision maker may -
(a)affirm the decision; or
(b)vary the decision; or
(c)set aside the decision and substitute its new decision.
(3)If the decision-maker varies the decision or sets it aside and substitutes a new decision, unless the proceeding for review is withdrawn it is taken to be for the review of the decision as varied or the substituted decision.
Clearly, subsection (3) deals differently with the situation where, following reconsideration, the Original Decision was affirmed from that where the Original Decision is varied or set aside and substituted with another decision.
The application of s 31 of the SAT Act to the circumstances of this case requires us to decide what actually is the 'decision'. Does it encompass the outcome and the reasons for it? Does it only encompass the outcome irrespective of whether the reasons for coming to that result are different in an initial and subsequent decision? Is it a different decision if the outcome is the same but, as in this case, a second finding is added, e.g. that each item of the complaint was unreasonable.
The word 'decision' is defined in s 3 of the SAT Act but only as it relates to decisions of the Tribunal. That section provides that 'decision' includes 'an order, direction or determination of the Tribunal'. That suggests that, in the case of a decision made by the Tribunal, the reasons upon which the Tribunal determines to make the order, direction or determination do not form part of the decision.
The term 'decision' is defined in the Macquarie Dictionary as follows:
1.The act of deciding; determination (of a question or doubt).
2.       A judgment, as one formally pronounced by a court.
3.A making up of one's mind.
4.       That which is decided; a resolution.
5.       The quality of being decided; firmness, as of character.
Those definitions lend support to each possibility and are not especially helpful in this case.
In our view, the answer is found in s 21 of the SAT Act. Section 21 of the SAT Act contemplates that a decision-maker can make a decision without giving reasons in every case and that, where that occurs, the Tribunal may request the decision-maker to provide the person having a right of review of that decision in the Tribunal with a written statement of reasons. Section 21(5) then provides that, subject to s 23, the decision-maker's statement of reason must contain both the reasons for the decision and any findings on material questions of fact that led to the decision. Where the decision maker does not comply with a request made under s 21, the Tribunal has power under s 22(3) to order that the decision-maker provide reasons within a specified time. From that, we conclude that for the purposes of s 31 of the SAT Act a decision is the outcome of deliberative process and does not encompass the reasons for coming to that conclusion.
Determining whether the Second Decision is a decision which affirmed or varied or set aside and substituted for the Original Decision also required us to consider what is meant by the expression 'affirm the decision' in s 31 of the SAT Act. The ordinary meaning of the verb 'to affirm' is, relevantly, 'to establish, confirm or ratify'.[19]
[19] Macquarie Dictionary Online.
In its submissions about how to construe the Second Decision the Applicant sought to rely on the cases of Re Patricia Ann Gee and Director General of Social Services[20] and Lindrea v TAC[21] and Uniway and CEO of Customs[22] in support of their position that the Second Decision was the affirmation of the Original Decision.
[20] Re Patricia Ann Gee and Director General of Social Services (1981) 3 ALD 132; 58 FLR 347 (Gee).
[21] Lindrea v TAC [2001] VSC 463 (Lindrea).
[22] Uniway and CEO of Customs [1999] AATA 208 (Uniway).
We turn then to consider those cases noting that they were decisions made in different jurisdictions under different legislative regimes where provisions akin to s 26 and s 33 of the SAT Act did not exist. They do, however, concern the characterisation of a decision made following reconsideration or review of a decision already made, and may therefore assist in resolving the question of how we should properly characterise the Second Decision in this case.
In Uniway, the applicant applied to the Administrative Appeals Tribunal (AAT) for a review of a decision to refuse a claim for a diesel fuel rebate which was made under the Customs Act 1901 (Cth) (Customs Act). The respondent argued that the AAT did not have jurisdiction to hear the application. The background was that on 1 August 1995 the respondent had been notified in writing that the application for the rebate had been refused and that he had a right to appeal to the AAT. No review had been brought within the prescribed time but in May 1997, following a particular Federal Court decision being made which the applicant considered supported its position in relation to its eligibility for the rebate, the applicant asked the respondent to reconsider its decision by way of 'internal review'. On 6 July 1998, the respondent informed the applicant that an internal review had already been conducted and on 2 August 1995 the applicant had been informed of the outcome of that internal review which was that the original decision had been confirmed. The respondent informed the applicant that, nevertheless it had conducted a further internal review and had again confirmed the decision to refuse the rebate. In its letter of 6 July 1998, the respondent also informed the applicant that it was entitled to apply to the AAT for a review of the decision. The applicant then commenced review proceedings seeking review of the decision of 6 July 1998. At the hearing the respondent submitted that the decision which the applicant was entitled to have reviewed was the original decision of 1 August 1995 and that AAT did not have jurisdiction to review that decision because the review application had been brought out of time.
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) AAT Act (Cth) (AAT Act) provided that an enactment could provide that application could be made to the AAT for a review of decisions made in the exercise of powers conferred by that enactment. Section 25(4) empowered the Tribunal to review any decision in respect of which application is made to it under any enactment. Section 273GA(1) of the Customs Act provided that applications for review of decisions of the Collector under s 164 of the Customs Act refusing to pay a rebate were able to be made to the AAT. Section 273GA(2) provided that in subsection (1) the expression 'decision' had the same meaning as in the AAT Act.
In section 3(3) of the AAT Act 'decision' was defined as follows:
3.... a reference in this Act to a decision includes a reference to:
(a)making, suspending or revoking or refusing to make an order or determination;
(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d)…;
(e)making a declaration, demand or requirement;
(f)…;
(g)doing or refusing to do any other act or thing.
Importantly, it is to be noted that the applicable statutory regime made no provision for internal review of decisions in relation to the payment of a rebate.
The question for the AAT was whether the decision made following the 'internal review' constituted a decision made under s 164 of the Customs Act refusing to approve the payment of a rebate. The AAT was required to consider whether the respondent's power was to make a decision which could subsequently be reconsidered or altered or whether the respondent, having made a final decision in August 1995, had exhausted its power such that the decision made following internal review was not a decision capable of review by it.
The applicant argued that s 33(1) of the Interpretation Act (Cth) (Interpretation Act) allowed the decision-maker to remake a decision in relation to the application which would then attract the right of review by the AAT.
The AAT found that s 33(1) of the Interpretation Act did not assist the applicant because it did not allow for the assessing and subsequent reassessing of the one application for the rebate but permitted the continuing exercise of the statutory power from time to time. That is, an authorised decision-maker to deal with successive applications lodged by successive applicants and that it did not authorise the power to assess and later reassess an application made by an applicant.[23] The AAT held that the decision in the matter was the original decision of August 1995 rejecting the application for the diesel fuel rebate and that its subsequent decisions on 'internal review' were simply affirmations of the decision. It held that the respondent did not have the ability to confer jurisdiction upon the Tribunal by confirming an earlier decision at a later date.
[23] Uniway at [18].
Presumably, on that reasoning the AAT would have found that any decision on internal review to pay the rebate would have been invalid had the issue ever arisen for determination.
Gee was a case in which the decision in question had been made under the Social Services Act 1947 (Cth) (Social Services Act). Decisions made under that Act (either by an officer of the Department or by the Director General himself) were able to be reviewed or appealed pursuant to s 14 and s 15 of the Social Services Act. Section 14 provided that the Director General of the Department of Social Services could review a determination, direction, decision or approval (including his own) whenever it appeared to the Director General that sufficient reason exists for reviewing the determination, direction, decision or approval. Section 15 provides that a person affected by a determination, direction, decision or approval of an officer under the Act (except one made by the Director General) may within such time as may be prescribed, appeal to the Director General and that the Director general could affirm, vary or annul the determination, direction, decision or approval. In practice however, most appeals were first considered by a Social Security Appeals Tribunal (SSAT). The SSATs were established by Ministerial direction, had no formal power and made recommendations to the Director General.
In that case, an original decision was made in February 1979 that Mrs Gee owed a debt because she had not properly disclosed her income and accordingly had been overpaid a supporting parent benefit under the Social Services Act. It was also determined that the overpayment was to be repaid by Mrs Gee in fortnightly instalments of a specified amount which were to be deducted from her future benefits. Notice of the decision was given to Mrs Gee. Mrs Gee appealed.
After the appeal was commenced the matter was reconsidered and a recommendation was made to reduce the fortnightly deductions. That decision was approved and Mrs Gee was informed of that reduction on 9 July 1979.
In September 1979, the SSAT considered the appeal and recommended that it be upheld. The SSAT's recommendation was conveyed to the Department. The Director of Appeals within the relevant department recommended to the Deputy Director General, as delegate of the Director that the appeal be dismissed. The Deputy Director General approved that recommendation and dismissed Mrs Gee's appeal.
In 1980, at the request of a Member of Parliament the matter was again reviewed and on 1 September 1980 the Director 'approved' the reduction of the recoverable amount in accordance with the decision taken in July 1979. Because Mrs Gee had ceased receiving a parenting benefit by that time the debt needed to be recovered other than via withholding of future social security payments. The commencement of legal proceedings to recover the debt was also 'approved'.
The AAT held that the decision taken in September 1980 amounted to a review of the decision even though it acknowledged that the decision went further than the earlier decision because it authorised the taking of legal proceedings to recover the overpaid sum.
The Tribunal identified the question it was required to determine was which decision was being reviewed. It held that where the decision on review was to set aside the original decision, then the original decision ceases to have effect, but that where a decision is affirmed, the original decision continues with full force and effect. The AAT determined in this case that the decision made in September 1980 was a decision to affirm the earlier decision reducing the debt. The AAT held that there was nothing in the Social Services Act from which it should draw an inference that a decision, once reconsidered on appeal or review, ceases to have affect and is replaced by a decision taken on appeal or review affirming it. The AAT also held that there was nothing in the general law that suggests that a decision ceases to have effect once it is affirmed and that its place is taken by the decision of affirmation.
The AAT concluded that the decision on review was the operative decision which affected Mrs Gee's rights, as varied following the reconsideration.[24]
[24] Gee at [143].
Lindrea was a case where the Supreme Court of Victoria was required to decide whether a determination by the Transport Accident Commission (the Commission) upon an informal internal review was a decision of the Commission under s 77(1) of the Transport Accident Act 1986 (Vic) (TAA). If it was such a decision, then the application for review brought by Ms Lindrea to the Victorian Civil and Administrative Tribunal (VCAT) was brought within time whereas, if it was not, the application for review was out of time.
The applicant had brought a claim for compensation as the surviving spouse of Mr Sully who had been killed in a transport accident. The Commission by letter dated 10 December 1999, informed Ms Lindrea that it was 'unable to accept her claim' because it believed she did not qualify as a 'surviving spouse'. Justice Ashley said that although the letter was expressed as an inability to accept the claim, it was undoubtedly a rejection of the claim and affected her interests. Ms Lindrea was, at that time, informed that she could seek an internal review of the decision or seek a review by VCAT. In this case, she sought an internal review of the decision stating that whether to seek a review in VCAT would be deferred pending the outcome of the review requested. The relevant legislation made no provision for a process of internal review. An internal review was undertaken. It considered additional material to that which the Commission possessed when it rejected her claim in December 1999. By letter dated 17 May 2000, the Commission advised Ms Lindrea that it had decided to affirm the previous decision to deny her access to dependency benefits. It also informed her that she could seek a review of the decision at VCAT as outlined in previous correspondence. An application for review was subsequently commenced in VCAT.

Ms Lindrea had sought a review of the May 2000 decision not the December 1999 decision. By the time she had sought review of the May 2000 decision the limitation period (12 months) applicable to the December 1999 decision had expired. Thus, VCAT could only review the May 2000 decision if it was characterised as a decision for the purposes of s 77(1) of the TAA.
The relevant provisions of the TAA provide that when a claim for compensation is made upon the Commission (see ss 67 and 68), liability to pay compensation must either be accepted or rejected within a relatively short period of time, subject only to the possibility of further information being sought or supplied (see s 70).[25]
[25] Lindrea at [9].
A decision to accept or to reject liability is a decision affecting a claimant's interest for the purpose of s 77(1) and therefore provides the foundation for an application to VCAT under s 77(1). Any such application is subject to a time limit as to which VCAT has no power to extend time.[26]
[26] Lindrea at [9].
Once a VCAT review has been sought there is a statutory obligation upon the Commission to reconsider its decision, or to seek particulars as a precursor to reconsideration.
The Commission's obligations and the obligations of an applicant for review, are subject to performance time limits (see s 78). The Commission's powers on reconsideration are prescribed by s 80 and are also subject to performance time limits. VCAT is precluded by s 77(4) from, in substance, commencing a hearing of a review application until reconsideration by the Commission is completed or deemed to be complete, or until an application is made to have the proceeding struck out in the event the applicant fails to provide the requested particulars or information within a prescribed period.[27]
[27] Lindrea at [10].
Ashley J found that the statutory framework tends strongly towards a conclusion that the 'decision' referred to in s 77(1) is, where a decision is required under s 70, the decision, and only the decision, made under that section to accept or reject a claim for compensation. Thus, when the sections are read together, they create a coherent regime with recognisable time limits that can be applied in every case.[28]
[28] Lindrea at [11].
Ashley J concluded that the legislation does not contemplate the prospect of the time limit imposed by s 77(1) operating differently depending upon whether a claimant does or does not seek informal internal review, the time when a request for an internal review is made or completed, or whether the s 70 decision is affirmed or varied, or whether the Commission simply considers existing material or finds its decision on material coming to hand after the s 70 decision is made.[29]
[29] Lindrea at [12].
According to Ashley J, it was within the Commission's power to conduct an informal internal review and that a decision upon such a review is a decision with respect to a claim for compensation. However, his Honour was not satisfied that this was a decision that falls within s 77(1).[30]
[30] Lindrea at [33].
Ashley J agreed that it would be contrary to the scheme and purpose of the TAA, if an informal review decision was not subject to review by the VCAT, but that it does not follow for the purposes of s 77(1) as it relates to time, that the reconsideration decision is to be taken to be 'the decision' there referred to.[31]
[31] Lindrea at [34].
Ultimately, Ashley J dismissed the appeal on the basis that it was commenced outside the time permitted by s 77(1). His Honour referred to two key reasons for such a conclusion. First, where a claim is made for compensation which requires a decision under s 70, it is that decision and no other which is the decision for s 77(1) purposes. Although, the Commission has the power to invite and undertake an informal review of its statutory decision, the structure of the TAA, which is pertinently replete with time limits, strongly suggests that in every case involving s 70 there is a common starting point, that being the s 70 decision itself.[32]
[32] Lindrea at [60].
Second, the May 2000 decision which affirmed rejection of Ms Lindrea's claim should not be considered a decision affecting her interests. The decision of that character was the decision which rejected the claimed entitlement.[33] Thus, the May 2000 decision did not deprive Ms Lindrea of anything she had not already lost as a consequence of the December 1999 decision.
[33] Lindrea at [61].
Having considered the decision in Uniway, Gee and Lindrea we have concluded they are of limited assistance for a number of reasons.
Firstly, the starting point in the process of statutory construction is the ordinary and grammatical sense of the words used in the statute, interpreted having regard to their context legislation purpose.[34] Although the focus is, of course, on the meaning of the text, the text must be construed in its context.[35] All three decisions involve the construction of legislation from other Australian jurisdictions to that which is the subject of these proceedings. While it is permissible to interpret a statutory regime having regard to analogous statutes in other jurisdictions,[36] neither of these three statutes can be characterised as analogous to the statutory regime under consideration in this case.
[34] Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Payment Board [2021] WASCA 208 at [5] (Buss P & Murhy JA).
[35] Mohammadi v Bethune [2019] WASCA 98 at [31].
[36] Pearce; Statutory Interpretation in Australia, 9^th Edition, 3.42.
Secondly, the particular factual circumstances in Uniway, Gee and Lindrea differ in some material respects to those the subject of this case.
To the extent it can be said that Uniway and Lindrea are authorities for the proposition that the Original Decision remains the operative decision notwithstanding a subsequent internal review, that is not the situation with which we are concerned. Unlike the present case, Uniway concerned a statutory regime that made no provision for an internal review. In any event, the Original Decision was affirmed by the internal review.
Although Lindrea was not concerned with a statutory right of internal review, implicitly Ashley J found there can only be one decision in accordance with s 77 of the TAA and that was the original decision not the decision upon an informal internal review or a statutory internal review. As we have already explained the decision in Lindrea turned on the particular legislative scheme which had as its object the imposition of time limits that can be applied uniformly in every case.
Further, the finding by Ashley J that the second decision did not affect Ms Lindrea's interests has no application in this proceeding. For reasons which we explain below, the subsequent decision differed from the Original Decision. Moreover, s 435 of the LP Act provides only that a person with an interest need only be aggrieved by a decision of the Complaints Committee to apply to the Tribunal for a review.
Thirdly, to the extent that Applicants rely on Gee, it supports the proposition that where a subsequent decision sets aside the original decision, the original decision ceases to have effect and the subsequent decision becomes the operative decision. The Applicants say that the LSCC's subsequent decision merely dismissed the application, it did not set aside the Original Decision, therefore the Original Decision remains the operative decision. However, s 31(3) of the SAT Act requires only that the subsequent decision vary the Original Decision in order for the subsequent decision to become the operative decision.

Characterisation of the Second Decision

With those matters in mind we turn then to construe the Second Decision.
The letter advising the Applicants of the Second Decisions does not state that it is a decision made following reconsideration pursuant to an order made under s 31(1) of the SAT Act. Nor is it expressed as a decision which either varies the Original Decision or which sets aside the Original Decision and substitutes for the Second Decision. It is written as if no earlier decision in relation to the complaint had been made. Presumably, because the Applicant had already formed the view that the Original Decision was of no force and effect.
But that does not determine its construction.
Having considered both the Original Decision and the Second Decision, we have come to the conclusion that the Second Decision is a decision which cannot be regarded as merely the affirmation of the First Decision and which therefore varied the Original Decision.
This is so, because after turning its mind to the items of complaint, upon reconsideration, the LSCC resolved not only that each item of complaint was misconceived, and thus to dismiss the Complaint pursuant to s 415 of the LP Act, but also decided that each item was unreasonable. In our view, that additional specific finding under s 435(2)(a) of the LP Act is a substantively different conclusion to that reached in the First Decision. It is an important difference because that additional finding means that a person aggrieved by the decision has no entitlement to review without leave of the Tribunal.
Thus, the decision-maker either varied the Original Decision or substituted the Original Decision with the Second Decision upon conveying the variation of the decision or the substituted decision to the Applicant by letter dated 27 February 2023. We prefer the conclusion that the Second Decision varied the Original Decision because in the case of the Second Decision, the decision-maker reached the same conclusion that the complaints were misconceived as had been reached in the Original Decision.
Thus, whether the Original Decision was invalid or not, we find that the effect of the Tribunal's order inviting the LSCC to reconsider its Original Decision and the making of the Second Decision (which went further than merely affirming the Original Decision) is that s 31(3) of the SAT Act applies and the review is taken to be the review of the Second Decision.
The effect of s 31(3) was recently considered by the Tribunal in Armstrong and Medical Board of Australia [2022] WASAT 76 President Pritchard explained the effect of s 31 of the SAT Act. At [49] of her reasons her Honour said:
As already noted, s 31(3) of the SAT Act provides that if the decisionmaker varies the decision or sets it aside and substitutes a new decision, then the proceeding for review is taken to be for the review of that varied or substituted decision. The effect of s 31(3) is that the applicant for review does not need to commence a fresh proceeding for review of the varied or substituted decision. Rather, the review will, without more, continue, and will pertain to that varied or substituted decision. However, s 31(3) says nothing about whether the Tribunal will necessarily have jurisdiction to deal with the varied or substituted decision.
Thus, the fact that the review application continues, and the proceeding remains on foot does not answer the question of whether the Tribunal has jurisdiction to hear and determine a review of a varied or substituted decision.
Rather, the question of jurisdiction is answered by consideration of the transitional provisions in the Application Act. The outcome of the application of these provisions was not in dispute in this matter. The parties accepted that if decision on review was the Second Decision made on 27 February 2023, then no right of review applied.
The Applicants submit that even if the Second Decision varied the Original Decision, the right of review by the Tribunal continues to exist because the Second Decision varied the Original Decision nunc pro tunc so that the decision is taken to be a decision made on 28 June 2022. We do not accept that submission. The Second Decision was made on 27 February 2023.
Even if the variation can be said to operate, or take effect, from the date of the Original Decision (certainly something contemplated in relation to decisions of the Tribunal made on review: see s 29(5) SAT Act) that does not alter the date on which the decision is made. The transitional provisions are concerned with the date on which a decision is made rather than the date on which a decision takes effect. They make clear that there is no entitlement to review a decision made after 1 July 2022.

The validity now of the Original Decision and whether it can still be reviewed

While we were not persuaded by the arguments that the Original Decision was of no force and effect, we do not need to express a final view as to that issue because of the conclusion we have reached about the characterisation of the Second Decision and the consequence of the proper construction of the s 31(3) of the SAT Act and the Application Act upon that decision.

Conclusion

It follows from our conclusions above that we find that the Tribunal has no jurisdiction to determine the application for review of the Respondent's decision made on 27 February 2023.
We note that, to the extent that the Applicants consider that the conduct of the practitioners may have been negligent, there may be a way of obtaining compensation for losses occasioned by that negligence that do not depend upon findings being made in this Tribunal about the conduct. The Applicants may wish to take legal advice about that possibility.

Orders

The Tribunal orders:
1. The Tribunal lacks jurisdiction to determine the application for review and the application for review is therefore dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS
Associate to Judge Glancy
9 NOVEMBER 2023