Meagher and Victorian Bar Incorporated - [2022] AATA 4415

Meagher and Victorian Bar Incorporated [2022] AATA 4415 (20 December 2022)
Division:GENERAL DIVISION
File Number: 2021/0392
Re:Jacob Meagher
APPLICANT

AndVictorian Bar Incorporated
RESPONDENT

Decision
Tribunal:Deputy President Britten-Jones
Date:20 December 2022
Place:Melbourne

The Tribunal affirms the decision of the respondent to grant the applicant a practising certificate on the condition that he complies with the statutory requirements applicable to a barrister under the Legal Profession Uniform Law (Victoria).
.....[sgd]...................................................................
Deputy President Britten-Jones
CATCHWORDS
Trans-Tasman Mutual Recognition Act 1997 (Cth) – applicant registered as a barrister in New Zealand - whether applicant is entitled to be registered as a barrister in Victoria by operation of the Trans-Tasman Mutual Recognition Act – consideration of the Trans-Tasman mutual recognition principle – Victorian Bar imposed insurance conditions on registration under s 19(5) of the Trans-Tasman Mutual Recognition Act – whether insurance conditions are more onerous than would be imposed in similar circumstances – general responsibilities of the local registration authority - whether Victorian Bar acted contrary to the Trans-Tasman Mutual Recognition Act – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Associations Incorporation Reform Act (Vic)

Legal Profession Uniform Law Application Act 2014 (Vic)
Mutual Recognition Act 1992 (Cth)
Trans-Tasman Mutual Recognition Act 1997 (Cth)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Re Johanson and Civil Aviation Safety Authority [2012] AATA 239; 127 ALD 195
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Victorian Building Authority v Andriotis [2019] HCA 22; (2019) 268 CLR 168
SECONDARY MATERIALS
Explanatory Memorandum for the Trans-Tasman Mutual Recognition Bill 1996 (Cth)
REASONS FOR DECISION
Deputy President Britten-Jones
20 December 2022
INTRODUCTION

This is an application made pursuant to the Trans-Tasman Mutual Recognition Act 1997 (Cth) (TTMRA) for review of a decision by the respondent (the Victorian Bar) to grant the applicant a practising certificate on the condition that he complies with certain statutory requirements applicable to a barrister under the Legal Profession Uniform Law (Victoria) (the Uniform Law (Victoria)).
The applicant wishes to practise as a barrister in Victoria. Although currently domiciled in the United Kingdom, he is registered as a barrister in New Zealand. Barristers in Victoria are required to have a practising certificate issued by the Victorian Bar. There is a regime under the TTMRA for New Zealand barristers to be registered as barristers in Victoria. The applicant claims to be entitled under the TTMRA to be registered as a barrister in Victoria and to receive a practising certificate. He also applied, unsuccessfully, to become a member of the Victorian Bar. On 25 January 2021, he applied to the Tribunal for review.
On 28 September 2021, I gave a decision on jurisdiction (the jurisdiction decision) in this matter.[1] I decided that the Tribunal had jurisdiction to review the decision made by the Victorian Bar with respect to the grant of a barristers’ practising certificate to the applicant but not…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2022] AATA 4415
Decision Date: 20 December 2022

CaseChat Overview and Summary

This matter concerned an application by a New Zealand-registered barrister to be registered as a barrister in Victoria under the Trans-Tasman Mutual Recognition Act 1997 (Cth). The applicant, who had been admitted to the Supreme Court of Victoria and obtained a principal practising certificate, sought to practise as a barrister in Victoria. The Victorian Bar resolved to allow his application for a practising certificate subject to obtaining compulsory professional indemnity insurance, but refused him membership of the Victorian Bar. The applicant contended that the imposition of insurance conditions and the refusal of membership constituted a breach of the Trans-Tasman Mutual Recognition Act. The Administrative Appeals Tribunal was asked to review the Victorian Bar's decisions.

The legal issues before the court were whether the Victorian Bar, as a local registration authority, had acted contrary to the Trans-Tasman Mutual Recognition Act by imposing certain conditions on the applicant's registration and by refusing him membership. Specifically, the court had to consider the obligations of local registration authorities under section 39 of the Act, which requires them to facilitate the operation of the Act and use their powers to impose conditions in a way that promotes the Trans-Tasman mutual recognition principle. The court also had to determine whether the insurance conditions imposed were more onerous than would be imposed in similar circumstances and whether the refusal of membership was permissible under the Act.

The court reasoned that section 39 of the Trans-Tasman Mutual Recognition Act imposes a duty on local registration authorities to facilitate the Act's operation and promote the mutual recognition principle. It noted that the Victorian Bar, through a delegation from the Victorian Legal Services Board, had the power to grant practising certificates. While the court acknowledged the applicant's entitlement to practise as a barrister in Victoria, it found that the Victorian Bar's decision to refuse membership was not reviewable by the Tribunal, as membership was distinct from the right to practise. The court affirmed the decision under review, indicating that the Victorian Bar had not acted contrary to the Act in its handling of the practising certificate application, subject to the specific conditions imposed.

Orders

Orders of the court

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Background

Background to the litigation

On 28 October 2021, the Victorian Bar filed a statement of reasons[2] pursuant to s 37(1) of the Administrative Appeals Tribunal Act 1975 (Cth) setting out the findings on material questions of fact and giving reasons for its decisions. [2] Exhibit 1 at T2.Background On 10 July 2020, the applicant applied “to be called to the Victorian Bar” by virtue of the TTMRA. He explained that he was called as a barrister and solicitor of the High Court of New Zealand in 2016 and then moved to the independent bar in 2020 and is now registered and practising as a barrister of the High Court of New Zealand and is a full member of the New Zealand Bar Association. Further, in April 2020, he was admitted as an Australian Legal Practitioner and barrister and solicitor of the Supreme Court of Victoria and obtained a legal principal practising certificate. On 21 September 2020, the Victorian Bar wrote to the applicant advising that the Victorian Bar Council had resolved to: (a)allow his application for a Victorian barristers’ practising certificate for the 2020-21 financial year subject to various statutory requirements which included obtaining compulsory professional indemnity insurance; and(b)refuse to grant him membership of the Victorian Bar by reference to certain clauses of the Victorian Bar constitution. In response to some further queries, the Victorian Bar advised the applicant that the Bar Council resolved that he is entitled to practise as a barrister in Victoria and that upon the issue of a practising certificate by the Victorian Bar, he will be registered as a barrister on the roll of practitioners maintained by the Victorian Legal Services Board (VLSB). The applicant responded on 29 September 2020 by asking the Victorian Bar to register his membership as barrister and member of the Victorian Bar saying:If not this is a breach of the TTMRA. While membership of the Victorian Bar is not technically required to practice as a barrister it is a clear breach of the mutual recognition principle insofar as you have closed part of the profession to me and restricted my ability to ply my trade and earn an income. The Act does not allow you to do this nor carve out professional associations or guilds as a way of excluding mutual recognition. On 9 October 2020, the Victorian Bar wrote to the applicant and advised that:It is compulsory for a barrister to hold professional indemnity insurance with the LPLC and your barrister PC will not issue without it. On 13 October 2020, the applicant wrote to the Legal Practitioner’s Liability Committee (LPLC) with respect to professional indemnity insurance. On 28 October 2020, the LPLC advised the applicant:This is now with the Regulators as I am not sure we can provide you with cover as you are not going to live or practise in Victoria. The Regulator can provide you with an exemption from obtaining PI insurance with the LPLC. They will of course need to see that you have adequate cover with another insurer and I'm guessing that is the one you have your other PI insurance with. I am assuming Vic Bar will be in touch with you regarding this.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 28 September 2021, I gave a decision on jurisdiction (the jurisdiction decision) in this matter.[1] I decided that the Tribunal had jurisdiction to review the decision made by the Victorian Bar with respect to the grant of a barristers’ practising certificate to the applicant but not with respect to the decision to refuse the applicant membership to the Victorian Bar.[1] TDDH v Victorian Bar Inc [2021] AATA 3445. On 28 October 2021, the Victorian Bar filed a statement of reasons[2] pursuant to s 37(1) of the Administrative Appeals Tribunal Act 1975 (Cth) setting out the findings on material questions of fact and giving reasons for its decisions. [2] Exhibit 1 at T2.Background On 10 July 2020, the applicant applied “to be called to the Victorian Bar” by virtue of the TTMRA. He explained that he was called as a barrister and solicitor of the High Court of New Zealand in 2016 and then moved to the independent bar in 2020 and is now registered and practising as a barrister of the High Court of New Zealand and is a full member of the New Zealand Bar Association. Further, in April 2020, he was admitted as an Australian Legal Practitioner and barrister and solicitor of the Supreme Court of Victoria and obtained a legal principal practising certificate. On 21 September 2020, the Victorian Bar wrote to the applicant advising that the Victorian Bar Council had resolved to: (a)allow his application for a Victorian barristers’ practising certificate for the 2020-21 financial year subject to various statutory requirements which included obtaining compulsory professional indemnity insurance; and(b)refuse to grant him membership of the Victorian Bar by reference to certain clauses of the Victorian Bar constitution. In response to some further queries, the Victorian Bar advised the applicant that the Bar Council resolved that he is entitled to practise as a barrister in Victoria and that upon the issue of a practising certificate by the Victorian Bar, he will be registered as a barrister on the roll of practitioners maintained by the Victorian Legal Services Board (VLSB). The applicant responded on 29 September 2020 by asking the Victorian Bar to register his membership as barrister and member of the Victorian Bar saying:If not this is a breach of the TTMRA. While membership of the Victorian Bar is not technically required to practice as a barrister it is a clear breach of the mutual recognition principle insofar as you have closed part of the profession to me and restricted my ability to ply my trade and earn an income. The Act does not allow you to do this nor carve out professional associations or guilds as a way of excluding mutual recognition. On 9 October 2020, the Victorian Bar wrote to the applicant and advised that:It is compulsory for a barrister to hold professional indemnity insurance with the LPLC and your barrister PC will not issue without it. On 13 October 2020, the applicant wrote to the Legal Practitioner’s Liability Committee (LPLC) with respect to professional indemnity insurance.

Ratio Decidendi

Legal Principle Established

Section 39 imposes certain duties on local registration authorities:General responsibilities of local registration authorities(1) It is the duty of each local registration authority of an Australian jurisdiction to facilitate the operation of this Part in relation to the occupations for which the authority is responsible, and in particular to make use of the power to impose conditions in such a way as to promote the Trans‑Tasman mutual recognition principle.The Regulation of the Legal Profession in VictoriaThe Legal Profession Uniform LawApplication Act2014 (Vic) (the Application Act) provides that the Uniform Law (Victoria) as set out in Schedule 1 is the law of Victoria. Part 3 of the Application Act establishes local regulatory authorities including the VLSB. Section 3 of the Application Act provides the following definitions:"Legal Profession Uniform Law (Victoria)" means the provisions applying in this jurisdiction because of section 4"Liability Committee" means the Legal Practitioners' Liability Committee continued under section 100"local professional association" means the following professional associations—(a) the Law Institute; and(b) the Victorian Bar"Victorian Bar" means Victorian Bar Inc, an association incorporated under the Associations Incorporation Reform Act 2012"Victorian Legal Services Board" means the body continued under section 28 Section 10 of the Application Act designates a local regulatory authority for the purposes of provisions of the Uniform Law (Victoria). It provides that the designated local regulatory authority for the purposes of: (a)chapter 4 of the Uniform Law (Victoria) is the VLSB; and (b)section 50(1) of the Uniform Law (Victoria) is the Victorian Bar. Sections 30 and 31 of the Application Act provide for the objectives and the functions and powers of the VLSB as follows:30 ObjectivesThe objectives of the Victorian Legal ServicesBoard are—(a) to ensure the effective regulation of the legal profession and the maintenance of professional standards; and(b) to address the concerns of clients of law practices and legal practitioners through the regulatory system and provide for the protection of consumers of legal services; and(c) to ensure the adequate management of trust accounts; and(d) to contribute to the effective administration of the Legal Profession Uniform Framework through cooperation with other involved entities.31 Functions and powers(1) The Victorian Legal Services Board has the functions conferred on it by or under the Legal Profession Uniform Law (Victoria), this Act or any other Act.(2) The Victorian Legal Services Board has all the powers necessary to perform its functions and achieve its objectives, including the powers conferred on it by or under the Legal Profession Uniform Law (Victoria), this Act or any other Act. Under s 44(1) of the Application Act, the VLSB may delegate any function to a local professional association which includes the Victorian Bar. By instrument of delegation[10] dated 29 May 2018, the VLSB delegated to the Victorian Bar certain functions, duties and powers relating to persons practising solely as barristers. This instrument delegated to the Victorian Bar the power to grant an Australian practising certificate under ss 44 and 45 of Part 3.3 of the Uniform Law (Victoria). [10] Exhibit 6.