Perkins v Victorian Bar Inc & Anor - [2007] HCATrans 608

[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

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…

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: [2007] HCATrans 608
Decision Date: 5 October 2007

CaseChat Overview and Summary

The case of *Perkins v Victorian Bar Inc & Anor* concerned an appeal to the High Court of Australia. The appellant, Mr. Perkins, had brought proceedings against the Victorian Bar Inc. and the Law Institute of Victoria, alleging that they had engaged in conduct that contravened the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)). The core of Mr. Perkins's complaint related to the rules and practices of the Victorian Bar concerning the admission of barristers and the regulation of the legal profession.

The High Court was required to determine whether the rules and practices of the Victorian Bar, as they related to the admission and regulation of barristers, constituted conduct that was prohibited by the *Trade Practices Act 1974* (Cth). Specifically, the court had to consider whether these rules had the purpose or effect of substantially lessening competition in a relevant market, or whether they were otherwise anti-competitive. A further issue was whether the Victorian Bar and the Law Institute of Victoria were bodies to which the Act applied, and if so, whether their actions fell within any relevant exemptions.

In their joint judgment, Kirby and Hayne JJ found that the rules and practices of the Victorian Bar concerning the admission and regulation of barristers did not contravene the *Trade Practices Act 1974* (Cth). Their Honours reasoned that the relevant market was not defined in a way that demonstrated a substantial lessening of competition. They also considered the nature of the regulatory functions performed by the Bar and the Law Institute, and concluded that these functions, in the context of the legislation, did not give rise to a contravention of the Act. The court affirmed that the statutory framework governing the legal profession in Victoria, including the rules of the Bar, was not rendered unlawful by the provisions of the *Trade Practices Act 1974* (Cth).

The appeal was dismissed.

Orders