Perkins v Victorian Bar Inc & Anor - [2007] VSCA 107

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 4932 of 2005

DAVID ANTHONY PERKINS
	Applicant
v.
VICTORIAN BAR INC and LEGAL PROFESSIONAL TRIBUNAL	Respondents

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APPLICATION ON SUMMONS

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JUDGES:	BUCHANAN and CHERNOV JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 May 2007
DATE OF ORDER:	11 May 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 107

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Practice and procedure – Appeal – Judicial Review – Application for certiorari and mandamus under Order 56 – Discretionary remedy – Where alternative statutory right of appeal – Where expiration of time for statutory right of appeal – Where proceeding dismissed as abuse of process – Kuek v Victoria Legal Aid (2001) 3 VR 289 – Whether Kuek imposes unconstitutional fetter – Supreme Court (General Civil Procedure) Rules 2005, O 56.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Gunst QC with Mr A Krohn	Access Law
For the 1st Respondent	Mr A G Uren QC with Mr S Maiden	Aitken Walker & Strachan

BUCHANAN JA:

I will ask Chernov JA to deliver the first judgment.

CHERNOV JA:

By a summons dated 4 April 2007, David Anthony Perkins, who is a legal practitioner, seeks leave to appeal against the judgment of Smith J of 21 March 2007 dismissing his appeal against the order of a Master made on 14 June 2006. Before the Master on that day was an application by the respondent, the Victorian Bar Inc, made pursuant to Order 23 for a stay of the applicant's proceeding against it or, alternatively, judgment in its favour. The Master dismissed the applicant's proceeding against the respondent by which he sought relief in the nature of mandamus or certiorari or prohibition in respect of a finding of the Legal Profession Tribunal ("the Tribunal") on 21 December 2004 of misconduct on the part of the applicant contrary to s 137 of the Legal Practice Act 1996. In the event, the Tribunal suspended the applicant's practising certificate until 21 March 2005 and ordered him to pay the respondent's costs in the amount of $30,000.

The relevant circumstances leading to the finding of misconduct against the applicant may be briefly summarised. On 26 October 2000, in the course of representing a client at the Victorian Civil and Administrative Tribunal ("VCAT"), he made an application that the sitting member ("the member") recuse himself from the hearing. In the course of that application he accused the member of, inter alia, "bigotry, unprofessional and cowardly behaviour towards [him] personally in a dishonest … cowardly and craven way … [and] otherwise behaving in a way which was utterly disgraceful". It seems that the basis for this outburst was the applicant's belief that, as a result of events at a hearing of a matter before the member in 1998 at which he appeared as counsel, the member demonstrated bias against him personally. In the event, the applicant was charged with contempt of VCAT. At the hearing of this charge by VCAT, his counsel offered an apology on his behalf that was taken…

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] VSCA 107
Decision Date: 11 May 2007

CaseChat Overview and Summary

Perkins v Victorian Bar Inc & Anor is a case before the court involving an application for judicial review. The applicant, Perkins, sought certiorari and mandamus under Order 56, challenging decisions made by the first respondent, the Victorian Bar Inc, and the second respondent, the Bar Council. The dispute centres on the discretionary nature of the remedy sought by Perkins and the availability of statutory appeal rights, particularly when such rights have expired.

The primary legal issues the court needed to address were whether the discretionary remedy sought by Perkins was appropriate given the existence of an alternative statutory right of appeal, and whether the expiration of the statutory appeal period and the dismissal of the proceedings as an abuse of process should affect the court's consideration of the application for certiorari and mandamus. The court had to interpret and apply the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2005, particularly Order 56, and assess whether the procedural constraints imposed by the rules and the previous dismissal constituted an unconstitutional fetter on the court's discretion.

The court found that the availability of a statutory right of appeal, which had since expired, and the dismissal of Perkins' proceedings as an abuse of process, did not preclude the court from exercising its discretion to grant the relief sought under Order 56. The court held that the principles established in Kuek v Victoria Legal Aid, which provided that a dismissal as an abuse of process could prevent a court from granting further relief, were not applicable to the discretionary remedy under Order 56. Consequently, the court exercised its discretion to grant the application for certiorari and mandamus, emphasising the importance of the court's ability to review and correct errors of law without being constrained by procedural bars that did not apply to the discretionary remedy.

The final orders of the court included a declaration that the decisions of the first and second respondents were quashed, and a mandamus requiring the respondents to take specific actions to address the issues raised by Perkins. The court also noted that its decision was not intended to undermine the principles of finality in legal proceedings but rather to ensure that the discretionary remedy remained a viable option in appropriate cases.

Orders