Perkins v Victorian Bar Inc & Anor
[2007] HCATrans 608
•5 October 2007
[2007] HCATrans 608
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M62 of 2007
B e t w e e n -
DAVID PERKINS
Applicant
and
VICTORIAN BAR INC AND LEGAL PROFESSION TRIBUNAL
Respondents
Application for special leave to appeal
KIRBY J
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON FRIDAY, 5 OCTOBER 2007, AT 11.27 AM
Copyright in the High Court of Australia
MR G.S.S. KUEK: If it pleases the Court, I appear for the applicant. (instructed by Access Law)
MR A.G. UREN, QC: If the Court pleases, I appear with my learned friend, MR S.J. MAIDEN, for the first respondent. (instructed by Aitken Walker & Strachan)
KIRBY J: Yes, Mr Kuek.
MR KUEK: If the Court pleases, I wish to seek an adjournment of the special leave application. The reason for the application, your Honours, is set out in the letter that I sent to the respondent.
KIRBY J: We received a letter, and it is described as an open letter under the heading of Access Law, dated 27 September 2007 which sets out a number of matters. Are you placing that letter before the Court?
MR KUEK: Yes, your Honour.
KIRBY J: Do you have any objection to the Court receiving that letter, Mr Uren?
MR UREN: No, your Honour.
KIRBY J: Very well. The Court receives the letter of 27 September 2007, which is MFI 1.
MFI: MFI 1.....Letter from Access Law dated 27 September 2007
KIRBY J: Is there any other material that you want to place before the Court in support of the application?
MR KUEK: I do, your Honour. This morning I handed to my friend a very short outline of submissions for the adjournment application.
KIRBY J: You have it there with you, do you?
MR KUEK: Yes. May I hand up to the Court a copy?
KIRBY J: Have you shown that to Mr Uren?
MR KUEK: Yes, I have, sir.
KIRBY J: Do you have any objection to the Court receiving this submission? It may save some time.
MR UREN: No, your Honour.
KIRBY J: Very well. Hand up the submission.
MR KUEK: It is accompanied by two cases, your Honour.
KIRBY J: Very well. We will take a moment to read that submission quickly but your time is still ticking over, I am afraid.
MR KUEK: Thank you, your Honour.
KIRBY J: If you had wanted us to read it, you could have sent it, with the agreement of the other party, to the Registry and we would have read it before we came in but we will now read it in your time.
HAYNE J: Mr Kuek, what right of appeal do you now have? There is none, is there?
MR KUEK: There is none.
HAYNE J: You have an application for leave to appeal out of time, is that right?
MR KUEK: Yes, your Honour.
HAYNE J: What consideration, other than those considered by the Court of Appeal in the decision the subject of challenge in this Court, would arise on the hearing of that application for leave?
MR KUEK: In my submission, the most important consideration that will be weighed up would be the fact that the Court of Appeal in the matter of Applicants A1 and A2 v Brouwer delivered this judgment and that on the holding and on the reasoning of that decision, Mr Perkins did have a right of appeal instead of a right subject to the grant of leave. That would be the most important consideration, in my submission.
HAYNE J: Would not the likelihood of success of an appeal out of time be a matter relevant to the decision whether to grant leave out of time?
MR KUEK: The likelihood of success is a relevant consideration but, in my submission, it would weigh less than the fact that the procedure that was adopted has turned out to be erroneous.
HAYNE J: Do you accept that the Court of Appeal in the decision now under challenge refused leave on a basis that included that the decision was not attended by doubt?
MR KUEK: Yes, I accept this. It is said on behalf of the applicant that the Court of Appeal would be assisted by the further authorities that have been obtained since delivery of the judgments by the Court of Appeal in the present case which is under appeal.
KIRBY J: The suspension that was ordered in respect of the practice by your client has expired. That is correct, is it not?
MR KUEK: Yes, it has.
KIRBY J: Before that order was made your client tendered an apology for his conduct which was the subject of the proceedings, did he not?
MR KUEK: He did.
KIRBY J: Given those two matters, why would the Court of Appeal, if the matter, even assuming you could overcome the barrier of being out of time – by the way, for a very long time which has, to this day, not been explained – why would there be any prospect that the Court of Appeal would reopen the matter and look at it afresh?
MR KUEK: For a number of reasons, your Honour. The first is that the suspension that took place still has an ongoing effect upon the applicant. He has been asked to show cause by the Bar as to why he ought to have his present certificate ‑ ‑ ‑
KIRBY J: But one does not find surprising or disturbing or concerning a suspension in the circumstances that are revealed in the evidence for which your client tendered an apology.
MR KUEK: I beg your pardon.
KIRBY J: I say one does not find suspension of practice in circumstances revealed in the evidence surprising given the material that is disclosed as to what happened and your client’s tender of an apology for his conduct on that occasion. Suspension seems to be entirely appropriate.
MR KUEK: The point I make, your Honour, is that the proceedings have an ongoing effect upon the applicant. He is presently without a practising certificate. So there is utility in the matter being agitated and considered. The other two consequences, of course, are reputation and the order for costs that was made against him. So there are rights that are affected by this decision.
KIRBY J: Is there anything else that you wish to say in respect of the application for the adjournment?
MR KUEK: No, your Honour.
KIRBY J: Is the adjournment opposed, Mr Uren?
MR UREN: It is, your Honour; yes.
KIRBY J: We do not need to hear you on the adjournment, Mr Uren. The adjournment is refused. Do you wish to say anything else in addition to what is in the written submissions in respect of the matters relevant to the special leave application?
MR KUEK: All I wish to do, your Honour, is hand up a decision that was referred to in the outline of submissions.
KIRBY J: They are the decisions that you have handed up in respect ‑ ‑ ‑
MR KUEK: No, I just wish to hand up one. I do not wish to add to the submissions that are contained in the summary of argument. It is a decision of Justice Sperling in the matter of ASIC v Farley. That is referred to by notation only in the summary of argument. I wish to draw the Court’s attention to ‑ ‑ ‑
KIRBY J: Yes. Hand the document up, please. Have you given a copy to Mr Uren?
MR KUEK: Yes, your Honour.
KIRBY J: What do you want to take us to in this decision of ASIC v Farley and Another [2001] NSWSC 326? What paragraph?
MR KUEK: If I can refer the Court to the last page of the reasons for decision at paragraph 24, just the last three lines of that paragraph. The point I wish to make about this case is that there seems to be a difference in the approach taken between the superior courts of the various States. Victoria, Queensland and Western Australia seem to have adopted the exceptional circumstances test, whereas New South Wales has not to date, on my research, adopted that test. The question which is raised ‑ ‑ ‑
KIRBY J: There is no doubt, is there, about the principles that are to be applied in these cases? It is actually not an uninteresting question as to whether you have continuing rights to prerogative relief where there is a statutory appeal and somehow you have to reconcile the two, but courts have generally said, well, the prerogative relief is still available but it is only to be provided in exceptional circumstances and it is discretionary. Here you have a number of very significant discretionary factors which stand against its provision in your client’s case.
MR KUEK: The only discretionary consideration that was adopted against my client in this case was the fact that he had not demonstrated exceptional circumstances.
KIRBY J: Yes, but you have the conduct itself as described. The fact that that conduct is not apparently contested but is the subject of an apology and the fact that your client has not explained the very long delay that both goes before the appeal process and also the application for a prerogative relief.
MR KUEK: Yes, they are all relevant considerations, with respect, your Honour. But also what is important is the merits of his complaints and they were never explored because the Bar struck at a stage that was early. They struck at the stage when my client was not given directions in respect of the filing of material that supports his complaints. What we say is that, accepting that there is a discretion vested in the court as to whether or not to grant of prerogative relief, the discretion must be exercised in light of all material which would be brought to the attention of the court and the discretion should not be exercised at the stage when it can only be said that my client is out of time in appealing, had the right to appeal and failed to exercise that right.
It is said that the preferred test would be the more liberal test that was enunciated in Tooth’s Case by the Chief Justice, the general rule test. What is said also is that, even if the exceptional circumstances test is the appropriate test, the proceedings were at the stage at which the use of this test was inappropriate.
KIRBY J: Of course, in the fraught circumstances of litigation, which can often be extremely taxing on the emotions, virtually every advocate has had incidents which perhaps later they wish they had not said or done. That is why you need controls on the conduct of advocates before tribunals. But it is also where things happen why there is often a need for the bodies with the power to do so to uphold the standards and then for the person to get on with their life and put it behind them. One point of view in this case is that that is what Mr Perkins should do.
MR KUEK: I will not take the matter any further, your Honour. Thank you.
KIRBY J: The Court does not need your assistance, Mr Uren. We have had the assistance of written material.
On the return of this application for special leave to appeal to this Court, the applicant sought an adjournment of the hearing. That application was opposed by the respondent. The stated ground for the adjournment was to permit the applicant to appeal out of time to the Court of Appeal of Victoria, as of right, from the orders of Justice Smith in the Supreme Court of Victoria. It was her Honour’s orders that had earlier occasioned the applicant’s unsuccessful request for leave to appeal to the Court of Appeal following refusal of which he sought special leave to appeal to this Court.
In support of the adjournment, the applicant referred to a supervening decision of the Court of Appeal of Victoria in Applicants A1 & A2 v Brouwer [2007] VSCA 139. He claimed that this decision showed that he always had an appeal as of right to the Court of Appeal, which he now wishes to exercise, although out of time.
We refuse the request for an adjournment. We are conscious that an adjournment will commonly be allowed if any disadvantage to an opposing party can be adequately repaired by orders as to costs. However, in this case we consider that an adjournment would be futile.
To secure an extension of time to appeal as of right to the Court of Appeal, assuming an appeal as of right exists, the applicant would face most, or all, of the same problems as he faced in challenging the earlier decision of that court. His period of suspension from practice, which he contests, has long since expired. The suspension followed his apology which amounted to an acknowledgment of erroneous conduct. To this day, no explanation has been given of the great delay in challenging the orders made against him.
We are unconvinced that there has been any error of law or miscarriage of justice in these proceedings, or that there is any prospect that the applicant would succeed, if special leave were granted to this Court. The orders of the Court are: adjournment refused, special leave refused with costs.
The Court will now adjourn to reconstitute for the last matter in the list.
AT 11.43 AM THE MATTER WAS CONCLUDED
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