Perkins v Victorian Bar Inc - [2007] VSC 70

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4932 of 2005

DAVID ANTHONY PERKINS	Plaintiff
v
VICTORIAN BAR INC	First Defendant
and
THE LEGAL PROFESSION TRIBUNAL	Second Defendant

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JUDGE:	SMITH, J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 and 9 March 2007
DATE OF JUDGMENT:	21 March 2007
CASE MAY BE CITED AS:	Perkins v The Vic Bar & The Legal Profession Tribunal
MEDIUM NEUTRAL CITATION:	[2007] VSC 70

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Practice and procedure – application for certiorari and mandamus under Order 56 – alternative statutory right of appeal; s.170 Legal Practice Act 1996 – jurisdictional error - abuse of process.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Gray	Access Law Lawyers
For the First Defendant	Mr G Uren, QC and Mr S Maiden	Aitken Walker and Strachan

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HIS HONOUR:

On 21 December 2004, the Legal Profession Tribunal handed down a decision concerning allegations of misconduct on the part of the plaintiff. The Tribunal stated that it found the plaintiff guilty of that misconduct, reprimanded him, suspended his practising certificate until 21 March 2005 and ordered him to pay $30,000 costs to The Victorian Bar Inc. It granted a stay of 12 months for payment of those costs and liberty to apply further as to payment.

The plaintiff could have considered lodging an appeal pursuant to s.170 Legal Practice Act 1996 up to 28 January 2005. If he had done so, under the rules, he would have been obliged to serve a copy of the appeal as soon as practicable after filing the notice of appeal on all persons directly affected by it. Instead, by originating motion issued on 7 March 2005 under Order 56, the plaintiff sought relief in the nature of certiorari and mandamus in relation to the above decision. This was the last day available for issuing such proceedings without obtaining an extension of time. The originating motion was not served on the first defendant until 7 March 2006, approximately 12 months later. This was the second last day available for service without obtaining an extension. No affidavit material has been filed by the plaintiff in its Order 56 proceeding.

In the meantime the suspension of the practising certificate had run its course by 25 March 2005. The stay on the costs order had also run its course by 16 September 2005. In the intervening period, the second defendant was abolished by statute.

On 15 March 2006 the first defendant filed a conditional appearance. On 26 May 2006, it applied by summons under Order 23 for judgment against the plaintiff, alternatively, a stay of the proceedings and an order that the general endorsement be struck out. The first defendant's application was heard before a Master of the Court on 14 June 2006. The application was supported by an affidavit of Christine Susan Harvey. No affidavit material has been filed on behalf of the plaintiff in respect of that application. The Master granted the application and dismissed the plaintiff's…

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.

Continue reading Perkins v Victorian Bar Inc

Details

AGLC: Perkins v Victorian Bar Inc [2007] VSC 70
Case: [2007] VSC 70
Decision Date: 21 March 2007

CaseChat Overview and Summary

In Perkins v Victorian Bar Inc, the plaintiff, a barrister, sought relief in the Supreme Court of Victoria against the defendant, the Victorian Bar Incorporated, in relation to its disciplinary proceedings against him. The plaintiff alleged that the Bar had acted in a manner that amounted to a breach of natural justice and sought orders for certiorari and mandamus to quash certain findings and compel the Bar to follow a particular course of action. The legal issues before the court centred on whether the Bar's proceedings constituted a jurisdictional error and whether the plaintiff had an alternative statutory right of appeal under section 170 of the Legal Practice Act 1996. The court considered the nature and extent of the alleged breaches of natural justice, as well as the procedural fairness owed to the plaintiff during the disciplinary process.

The court held that the Bar's conduct did not amount to a jurisdictional error or an abuse of process. It found that the plaintiff had not demonstrated that the proceedings were so unfair as to render them a nullity. Furthermore, the court determined that the statutory right of appeal provided under section 170 of the Legal Practice Act 1996 constituted an alternative remedy for the plaintiff, which precluded the availability of certiorari and mandamus. Consequently, the court dismissed the plaintiff's application, finding that the Bar's actions did not meet the threshold for the issuance of the sought-after writs.

The court's reasoning was grounded in the principles of procedural fairness and the existence of a statutory appeal mechanism. It noted that the plaintiff had not provided sufficient evidence to establish that the Bar's actions were so egregious as to render the proceedings a nullity. The court also emphasised that the statutory right of appeal provided an adequate alternative remedy, which rendered the application for certiorari and mandamus redundant. As a result, the plaintiff's application was dismissed with no orders made in favour of the plaintiff.

Orders