Meagher and Victorian Bar Incorporated - [2021] AATA 3445

Meagher and Victorian Bar Incorporated [2021] AATA 3445 (28 September 2021)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2021/0392

GENERAL DIVISION )
Re: Jacob Meagher
Applicant

And: The Victorian Bar Inc.
Respondent
DIRECTION
TRIBUNAL:  Deputy President Britten-Jones
DATE OF CORRIGENDUM:            12 October 2021
PLACE:           Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by:

Replacing the anonym “TDHH” with the applicant’s name, “Jacob Meagher”.

...................................................................
Deputy President
Division:GENERAL DIVISION
File Number: 2021/0392
Re:TDHH
APPLICANT

AndVictorian Bar Incorporated
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Date:28 September 2021
Place:Melbourne

The Tribunal has jurisdiction to review the respondent’s decision with respect to the barristers’ practising certificate. The Tribunal does not have jurisdiction to review the respondent’s decision to refuse the applicant membership to the Victorian Bar Incorporated.
.......[SGD]................................................
Deputy President Britten-Jones
Catchwords
PRACTICE & PROCEDURE – JURISDICTION – Trans-Tasman Mutual Recognition Act 1997 (Cth) (TTRMA) – decision to grant or refuse New Zealand barrister a Victorian barristers’ practising certificate – decision to refuse a New Zealand barrister membership to the Victorian Bar – whether the Tribunal has jurisdiction to review these decisions – meaning of ‘decisions made in the exercise of powers conferred by that enactment’ – whether a decision to grant a practising certificate on condition of insurance is a decision made under the TTRMA or the Legal Profession Uniform Law (Victoria) – whether a decision to refuse to grant New Zealand barrister membership to the Victorian Bar is a decision under the TTRMA or under the Constitution of the Victorian Bar – meaning of ‘registration’ under the TTRMA - jurisdiction found for the practising certificate decision – no jurisdiction found for the membership decision
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Associations Incorporation Reform Act 2012 (Cth)
Building Act 1993 (Vic)
Legal Profession Uniform Law Application Act 2014 (Vic)
Mutual Recognition Act 1992 (Cth)
Trans-Tasman Mutual Recognition Act 1997 (Cth)
Tribunals Amalgamation Act 2015 (Cth)
Cases
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338
Director-General of Social Services v Hales (1983) 47 ALR 281
Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission [2001] FCA 1296; (2001) 113 FCR 230
Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99
Hong Kong Bank of Australia Ltd v Timboli (1992) 40 FCR
Re Alan Bond and Minister for Justice (1995) 39 ALD 707
Re Johanson and Civil Aviation Safety Authority [2012] AATA 239; 127 ALD 195
Re Simpson and Australian Maritime Safety Authority [2006] AATA 315
Taylor v Secretary, Department of Social Security (1988) 18 FCR 322
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)
Explanatory Memorandum for the Tribunals Amalgamation Bill 2014 (Cth)
REASONS…

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: [2021] AATA 3445
Decision Date: 28 September 2021

CaseChat Overview and Summary

The case concerned an application by a New Zealand barrister seeking review of decisions made by the Victorian Bar Incorporated. The dispute centred on whether the Administrative Appeals Tribunal had jurisdiction to review the Victorian Bar's decision to refuse the barrister a practising certificate and its decision to refuse the barrister membership to the Victorian Bar.

The primary legal issues before the court were whether these decisions constituted "decisions made in the exercise of powers conferred by" the Trans-Tasman Mutual Recognition Act 1997 (Cth) (TTMRA), and therefore were reviewable by the Tribunal. Specifically, the court had to determine if a decision to grant a practising certificate subject to a condition regarding insurance was made under the TTMRA or the Legal Profession Uniform Law (Victoria), and if a decision to refuse membership to the Victorian Bar was made under the TTMRA or the Victorian Bar's own Constitution. The meaning of "registration" under the TTMRA was also a point of consideration.

The court adopted a liberal approach to determining whether a decision was reviewable, considering the legislative context and the practical effect of the pronouncement. It found that the decision to grant a practising certificate, even with conditions, was sufficiently linked to the TTMRA's objective of facilitating mutual recognition and thus fell within the Tribunal's jurisdiction. However, the court determined that the decision to refuse membership to the Victorian Bar was a matter governed by the Victorian Bar's internal rules and constitution, and not by powers conferred by the TTMRA, meaning the Tribunal lacked jurisdiction to review this particular decision.

Consequently, the Tribunal found it had jurisdiction to review the decision concerning the practising certificate but not the decision regarding membership to the Victorian Bar.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The enactment in question is the TTMRA. Section 33 of the TTMRA provides that a decision under the Act may be reviewed by the Tribunal.Is there a decision made in the exercise of powers conferred by the TTMRA? This requires consideration as to whether there is a decision and whether that decision was made pursuant to powers conferred by the TTMRA. Separate consideration of each of these elements may be helpful but the question posed by sub-paragraph (a) of s 25(1) requires satisfaction of both elements. This consideration is sometimes described as whether there is a reviewable decision. The ultimate question for me to determine is whether there was a decision made in the exercise of powers conferred by the TTMRA. Lockhart J provides some guidance with respect to the meaning of “decision” in Director-General of Social Services v Hales (1983) 47 ALR 281 at 305–306:The Administrative Appeals Tribunal has jurisdiction to review decisions made in the exercise of the powers conferred by particular statutes, not by the Administrative Appeals Tribunal Act itself. Those statutes are many and diverse. They include the Social Services Act 1947, the Migration Act 1958, the Compensation (Commonwealth Government Employees) Act 1971, the Repatriation Act 1920, the Customs Act 1901, and the Insurance Act 1973. Each of the statutes conferring jurisdiction on the Administrative Appeals Tribunal covers a wide range of decisions.The definition of “decision” in s 3(3) seeks to embrace them all by its ambulatory character. One cannot therefore look to the definition in s 3(3) to determine definitively the meaning of the word “decision”. It must take its colour and content from the enactment which is the source of the decision itself. No narrow or pedantic approach is called for in determining whether a decision falls within the scope of review by the tribunal. The multiplicity of statutes which continue to grow and to confer jurisdiction on the tribunal, and the manifold and diverse circumstances which attract the power of the decision-maker, all call for a liberal approach to the definition of the word 'decision'… It is necessary to examine the Act which confers jurisdiction on the AAT and the administrative framework in which it operates to determine whether there is a 'decision' susceptible of review under the AAT Act. A pronouncement which alters rights or imposes liabilities is readily classified as a ‘decision’, but the word has a wider scope. It may include a declaration or statement which has a real practical effect although not altering rights or imposing liabilities. It follows that I am to take a liberal approach to identifying a decision, taking into account the legislative context of the conferring legislation. I now turn to the purported decisions in issue. In its written submissions dated 19 April 2021 the Victorian Bar identified:[5] …two purported decisions (or failures to make a decision), namely:(a) To ‘register’ the Applicant as a Barrister in Victoria (which is understood to mean, to grant a practising certificate under the Legal Profession Uniform Law (Victoria) (the Uniform Law)(Issue A); and(b) To grant membership of the Victorian Bar (Issue B). [5] Respondent’s Submissions on the Question of Jurisdiction dated 19 April 2021.

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 Victoria The Application Act provides that the Uniform Law (Victoria) is the law of Victoria. Part 3 of the Application Act establishes local regulatory authorities including the Victorian Legal Services Board (VLSB). 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. By instrument of delegation dated 29 May 2018 under s 44(1) of the Application Act, 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 the Uniform Law (Victoria). Under s 150 of the Application Act, the VLSB must keep a register of Australian legal practitioners whose home jurisdiction is Victoria. The register must specify whether each practitioner is or is not a barrister. Chapter 3 of the Uniform Law (Victoria) deals with legal practice. Part 3.3 deals with Australian legal practitioners. Section 44 of the Uniform Law (Victoria) gives power to the designated local authority to grant or renew an Australian practising certificate. Section 45 sets out prerequisites for the grant or renewal of Australian practising certificates as follows:Prerequisites for grant or renewal of Australian practising certificates in this jurisdiction(1) The designated local regulatory authority may grant or renew an Australian practising certificate only if it is satisfied that the applicant—(a) is an Australian lawyer; and(b) if required by this Law to have professional indemnity insurance—has, or will have on or before the grant or renewal, professional indemnity insurance in accordance with this Law and the Uniform Rules; and(c) has indicated in the application that he or she does not hold (and he or she does not have a current application for) another Australian practising certificate that would be in force concurrently with the certificate whose grant or renewal is sought under this section.(2) Subject to subsection (4), the designated local regulatory authority must not grant or renew an Australian practising certificate if it considers that the applicant is not a fit and proper person to hold the certificate.

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2021/0392
GENERAL DIVISION	)