Thomas v Victorian Legal Services Board and Commissioner
[2018] VSC 645
•29 October 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 01780
IN THE MATTER of an application under Section 3 of the Administration Law Act 1978
BETWEEN
| DARRON THOMAS | Applicant |
| v | |
| VICTORIAN LEGAL SERVICES BOARD AND COMMISSIONER | Proposed Respondent |
---
JUDGE: | Lansdowne AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 and 17 October 2018 |
DATE OF JUDGMENT: | 29 October 2018 |
CASE MAY BE CITED AS: | Thomas v Victorian Legal Services Board and Commissioner |
MEDIUM NEUTRAL CITATION: | [2018] VSC 645 |
---
JUDICIAL REVIEW – Application for ex parte order for review pursuant to s 3 Administrative Law Act 1978 (Vic) – Applicant made complaint about a legal practitioner to the Victorian Legal Services Commissioner – The Commissioner closed the complaint on 26 July 2018 – Applicant sought to ‘appeal’ that decision on 1 August 2018 – Commissioner treats the ‘appeal’ as an application for internal review – No decision yet made as to whether or not to conduct an internal review – Whether a decision in relation to internal review is amenable to an order for review – Whether a prima facie case shown that the Commissioner has ‘failed or refused’ to make that decision – Held: no – Application refused.
Administrative Law Act 1978 (Vic) ss 2, 3 and 4 – Legal Profession Uniform Law Application Act 2014 (Vic) - Legal Profession Uniform Law (Victoria) ss 277 (1)(a); 313; 316; 319.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondents | No appearance |
TABLE OF CONTENTS
Introduction and summary............................................................................................................... 1
Facts....................................................................................................................................................... 2
Requirements of the Administrative Law Act.............................................................................. 5
Framework for the investigation of complaints under the Uniform Law............................... 7
Discussion............................................................................................................................................ 9
Conclusion......................................................................................................................................... 13
Orders................................................................................................................................................. 13
HER HONOUR:
Introduction and summary
Mr Thomas made a complaint to the Victorian Legal Services Commissioner (Commissioner) in October 2017 about the conduct of a solicitor at Holding Redlich, whom he had retained for a period earlier in 2017 to act for him in relation to his complaint against the University of Melbourne. The Commissioner notified Mr Thomas that she was closing the complaint pursuant to s 277(1)(a) of the Legal Profession Uniform Law (Victoria) (Uniform Law)[1] by letter dated 26 July 2018, from Mr Michael Mealy, described as the Manager, Dispute Resolution and Review.
[1]Schedule 1 to the Legal Profession Uniform Law Application Act 2014 (Vic) (Uniform Law).
By email dated 1 August 2018, Mr Thomas sought to appeal that decision. The Uniform Law does not give any right to appeal a decision to close a complaint. It does, however, enable the Commissioner to conduct an internal review of such a decision. By her email of 21 September 2018, Ms Sara Abelardo, described as Assistant Manager Licensing, notified Mr Thomas that she was considering his request, which she described as a request to review the decision. Ms Abelardo has reiterated in subsequent emails, sent in response to further correspondence from Mr Thomas, that she has not yet made a decision whether or not an internal review should be conducted. The most recent email to Mr Thomas to this effect, prior to hearing, is dated 2 October 2018.
Mr Thomas contends that the Commissioner has failed or refused to make a decision as to whether or not to conduct an internal review, and seeks an order from the Court pursuant to s 3 of the Administrative Law Act 1978 (Vic) (ALA) requiring the Commissioner to show cause why that failure should not be judicially reviewed.
Mr Thomas names the Victorian Legal Services Board as well as the Commissioner as respondents to his application. On my analysis of the Uniform Law, it is the Commissioner who is given the statutory function of receiving and determining complaints against legal practitioners, and for that reason, if this application was successful, the Commissioner would be the sole respondent.
For the reasons set out below, I refuse the application. For the purposes of my consideration of the application, I have accepted (without finally deciding) that a decision by the Commissioner, or failure to decide, whether or not to conduct an internal review is capable of judicial review under the ALA. It is important to record that I have proceeded on this basis without hearing from the Commissioner, and so this approach is not binding on the Commissioner in this, or any other proceeding. Although judicial review may be available, however, I do not consider that Mr Thomas has shown that there has indeed been such a failure or refusal in this instance.
Mr Thomas has also sought an order under s 3 of the ALA in relation to the dismissal by the University of Melbourne of an appeal he sought to bring against the determination of his complaint. I refuse that application as well for reasons published today as Thomas v University of Melbourne [2018] VSC 647.
Facts
It is not necessary for the purposes of these reasons to set out in any detail the underlying facts. It would in any event be difficult to do so on the basis of the affidavit that Mr Thomas has sworn. Perhaps for want of legal assistance in its preparation, the affidavit is not confined to a statement of the relevant facts and attachment of the relevant documents on which Mr Thomas relies set out in clear and numbered sequence. It recites extracts of documents, rather than attaching the document itself, and includes matters of argument, extracts from legislation, the orders that Mr Thomas seeks and the application he makes.
Doing the best that I can on the basis of the affidavit and the other documents Mr Thomas put into evidence at my request, the following is a sufficient outline of the factual context of the application.
Mr Thomas was enrolled at the University of Melbourne as a candidate for the award of PhD in the Department of Finance, within the Faculty of Business and Economics. He made a complaint of racial discrimination and bullying dated 1 March 2017 against two professors at the University involved in his candidature. Mr Thomas was unhappy with the investigation that the University established into his complaint. He retained the solicitor at Holding Redlich to act for him in relation to the complaint, in or around June or July 2017 (the evidence does not allow me to be exact as to the date). Mr Thomas terminated that retained on 20 September 2017 as he was unhappy with aspects of the solicitor’s conduct of it.
I cannot determine from the material Mr Thomas has supplied when he first made a complaint to the Commissioner about the solicitor or Holding Redlich. The earliest email I have located in his affidavit is dated 7 October 2017, but that appears to be a reply to an email dated 3 October 2017 from the Office of the Commissioner. What follows is drawn from documents Mr Thomas does include or extract in his affidavit, and from the letters to him from the Office of the Commissioner that Mr Thomas has put into evidence. It appears that he has not put into evidence every communication between himself and the Office of the Commissioner.
The complaint was assigned to an officer for initial dispute resolution.[2] She obtained responses from the solicitor, on which Mr Thomas made extensive comments by email dated 1 December 2017.[3] Amongst other matters, Mr Thomas complained that the solicitor and Holding Redlich had a conflict of interest. He asserted that this arose because the solicitor’s wife works for the University of Melbourne (I could not ascertain in what capacity) and a partner of Holding Redlich is a member of the Advisory Board of the Law School of the University of Melbourne. The Commissioner notified Mr Thomas by letter dated 2 February 2018 that he had closed that aspect of the complaint on the basis that it was without substance.[4]
[2]Letter dated 20 February 2018 from the Commissioner to Mr Thomas.
[3]Affidavit of Darron Thomas affirmed 8 October 2018, 30.
[4]That letter is not in evidence, but is referenced in the letter dated 20 February 2018 from the Commissioner to Mr Thomas.
By letter dated 20 February 2018, Mr Michael Mealy for the Commissioner notified Mr Thomas that there were three aspects of his complaint that were ‘still being reviewed’ being complaints that :
1. The total amount billed to you by the Law Practice exceeds the estimate provided to you at the commencement of your retainer;
2. The Lawyer failed to act in your best interests, and undertook acts which inflated your overall costs;
3. The Lawyer failed to act on your instructions.
By letter dated 3 July 2018, Mr Mealy notified Mr Thomas that he was close to finalising the investigation of the complaint. He said ‘I am likely to decide that I cannot take any further action with respect to the concerns you have raised in your complaint, and therefore propose to close your complaint pursuant to section 277(1)(a) of the (Uniform Law)’.[5] The letter then set out the reasons for that view. Mr Thomas replied with comments and questions on 9 July 2018 and 17 July 2018. Mr Mealy responded to those comments and questions in a letter dated 26 July 2018 in which he confirmed that he had closed the complaint pursuant to s 277(1)(a) of the Uniform Law for the reasons given in his earlier letter of 3 July 2018.
[5]Letter dated 3 July 2018 from the Commissioner to Mr Thomas.
As noted in the Introduction to these reasons, Mr Thomas requested an ‘appeal’ of that decision by email sent 1 August 2018, which is being treated by the Commissioner as a request for internal review.
Mr Thomas sought to file an affidavit under s 4 of the ALA in the Registry of the Court on 8 October 2018. Due to the form of his documents, they came to me for consideration as to whether to accept them for filing. I directed that they be accepted, in hard copy as opposed to electronically, in this and Mr Thomas’ related application relating to the University of Melbourne, and that the two applications come before me on 10 October 2018. On that date, I refused Mr Thomas’ application that the two applications be consolidated and adjourned each of them to 17 October 2018 before me for hearing.
Requirements of the Administrative Law Act
The ALA permits the Court, on the application of a ‘person affected’ by a ‘decision’ of a ‘tribunal’, to issue an order for review directed to the tribunal, calling on it, or the members of it, to show cause why the decision should not be reviewed.
Section 4 of the ALA provides that the application for review is to be made ex parte, not later than 30 days after the giving of notification of the decision or the reasons for it (whichever is later), supported by evidence on affidavit showing a prima case for relief under s 7. Section 7 provides as follows:
7 Powers of Court
Upon the return of the order for review, the Court may discharge the order or may exercise all or any of the jurisdiction or powers and grant all or any of the remedies which upon the material adduced and upon the grounds stated in the order might be exercised or granted in proceedings for relief or remedy in the nature of certiorari, mandamus, prohibition or quo warranto or in proceedings for a declaration of invalidity in respect of the decision or for an injunction to restrain the implementation thereof and may extend the period limited by statute for the making of the decision but shall not exercise any other jurisdiction or power or grant any other remedy.
The intention of the order for review procedure in the ALA was to remove the technicalities that beset applications to the Court for the grant of prerogative writs and similar remedies directed to bodies charged with the performance of public acts and duties. On return of the order for review, the Court has power to grant a remedy that, on the grounds set out in the order for review and on the evidence, it might have previously granted on the return of an application for any prerogative writ, or similar application. Section 7 does not empower the Court to grant new remedies, or enable an aggrieved person to obtain relief that he or she would not previously have been able to obtain. It removes the necessity for the applicant to choose the remedy he or she seeks, as it is for the Court to decide the appropriate remedy.[6]
[6]Monash University v Berg [1984] VR 383.
Application under the ALA is not the only mechanism by which decisions may be judicially reviewed. In appropriate cases, application for judicial review can be made under O 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules).
The qualifying requirements for application under s 3 of the ALA, are defined by s 2 of the ALA as follows:
decision means a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence and includes a refusal or failure to perform a duty or to exercise a power to make such a decision;
person affected in relation to a decision, means a person whether or not a party to proceedings, whose interest (being an interest that is greater than the interest of other members of the public) is or will or may be affected, directly or indirectly, to a substantial degree by a decision which has been made or is to be made or ought to have been made by the tribunal;
tribunal means a person or body of persons who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice, but does not include—
(a)a court of law or a tribunal constituted or presided over by a Judge of the Supreme Court; or
(b)a Royal Commission, Board of Inquiry or Formal Review within the meaning of the Inquiries Act 2014.
As can be seen from the definition of ‘decision’, it includes ‘a refusal or failure to perform a duty or to exercise a power to make such a decision’. The ALA does not contain any time limit for the making of an application in respect of an alleged refusal or failure to make a ‘decision’. Not all decisions are capable of supporting an application for review – the decision must be one that operates in law and determines a question affecting the rights or privileges of a person. Similarly, not all decision makers are liable to an order for review, but only those who are required by law to observe natural justice in arriving at the decision in question.
Notwithstanding that a prima case for relief is disclosed in the application under s 3, the Court may, pursuant to s 4(2), refuse the application ‘if satisfied that no matter of substantial importance is involved or that in all the circumstances such refusal will impose no substantial injustice upon the applicant’.
Framework for the investigation of complaints under the Uniform Law
Any person may make a complaint about a lawyer or law practice to the Commissioner, who is the ‘designated local regulatory authority’ in Victoria for the purposes of the Uniform Law.[7] The complaint must comply with certain time limits and form (ss 267, 272). The Uniform Law provides that a complaint may contain either or both of a ‘consumer matter’ (which includes a cost dispute within certain monetary limits) or a ‘disciplinary matter’ (ss 268–271). Amongst his grievances with the decision to close his complaint, Mr Thomas is aggrieved that what he considers disciplinary matters were not treated as such by the Commissioner. It is not necessary for current purposes to explore this further.
[7]Uniform Law ss 266–267; Legal Profession Uniform Law Application Act 2014 (Vic) s 10.
The Commissioner is required to conduct a preliminary assessment of a complaint (s 276). Thereafter, the Commissioner is empowered by s 277 to close a complaint. That section relevantly provides as follows:
277 Closure of whole or part of complaint after preliminary assessment
(1)At any stage after the preliminary assessment of a complaint, the designated local regulatory authority may close the complaint without further consideration of its merits for any of the following reasons to the extent they are applicable—
(a)the complaint is vexatious, misconceived, frivolous or lacking in substance;
(b)–( j) (not here applicable)
(2) (not here applicable)
(3)A complaint may be closed under this section without any investigation or without completing an investigation.
(4)The designated local regulatory authority is not required to give a complainant, a lawyer or law practice an opportunity to be heard or make a submission to the designated local regulatory authority before determining whether or not to close a complaint under this section.
(5)The power to close a complaint under this section extends to closure of part of a complaint.
Detailed provisions follow as to the investigation of complaints concerning consumer and disciplinary matters.
Section 312 provides that the determination of a complaint or matter by, here the Commissioner, is final, except as provided in the two following sections. Section 313 provides as follows:
313 Internal review of decisions of local regulatory authority
(1)The designated local regulatory authority may (at its absolute discretion) conduct an internal review of a decision made by the designated local regulatory authority (or its delegate) if the designated local regulatory authority considers it appropriate to do so.
(2)On the review, the designated local regulatory authority is to consider whether the decision was dealt with appropriately and whether the decision was based on reasonable grounds.
(3)On the review, the designated local regulatory authority may confirm the original decision, make a new decision, or refer the matter back to the original decision-maker.
The following section provides for a right of appeal or review, but by the respondent to the complaint only, to the relevant tribunal, which in Victoria is the Victorian Civil and Administrative Tribunal.
In addition to specific provisions dealing with the manner in which investigations are to be conducted, which, in general terms, require the complainant and the respondent to be given an opportunity to be heard, the Uniform Law also contains an overriding requirement as to procedural fairness in the determination of complaints in s 319, which provides as follows:
319 Rules of procedural fairness
(1)The rules of procedural fairness, to the extent that they are not inconsistent with the provisions of this Law or the Uniform Rules, apply in relation to—
(a)the investigation and determination of complaints by the designated local regulatory authority; and
(b)the making of other decisions by the designated local regulatory authority in respect of complaints; and
(c)the procedures of the designated local regulatory authority in respect of complaints and any associated matters.
(2)Subsection (1) does not apply in relation to a decision of the designated local regulatory authority that the whole or part of a complaint should be resolved by the exercise of functions relating to consumer matters (see section 269(1)).
Section 316 may also be relevant in this context. It provides:
316 Duty to exercise discretions fairly
It is the duty of the designated local regulatory authority, in exercising or considering whether or how to exercise any applicable discretions when dealing with a complaint (including the conduct of any investigation), to act in a fair manner, having regard to the respective interests of the complainant and the respondent and to the public interest.
Discussion
Mr Thomas contends that the Commissioner has refused or failed to make a decision as to whether or not to conduct an internal review of the closure of his complaint. He seeks an order requiring the Commissioner to show cause why she should not be ordered to make that decision. An order of that kind would be in the nature of the prerogative writ of mandamus, which lies where the respondent has failed to perform a duty of a public nature.
For the order to be made under s 3 of the ALA, the Commissioner must be a person, who in arriving at the decision under s 313 as to whether or not to hold an internal review of the closure of the complaint, is required by law to observe one or more of the rules of natural justice. The rules of natural justice include the hearing rule, which in this context, if it applied, would require the Commissioner to give Mr Thomas an opportunity to be heard on the question of internal review.
The Commissioner is, by s 319, required to observe the rules of procedural fairness except where they are inconsistent with the provisions of the Uniform Law or Rules. There is nothing in the Uniform Rules that excludes the requirements of procedural fairness in relation to the investigation and determination of complaints against legal practitioners. By s 319(1)(b) the rules of procedural fairness apply to the making of decisions in respect of complaints. For the purposes of this application at this ex parte stage, I would accept that this applies to the decision whether or not to conduct an internal review. Prima facie, this would mean that the Commissioner is obliged to give Mr Thomas an opportunity to be heard on that decision (subject to the exception in s 319(2)) unless this would be inconsistent with the characterisation, in s 313, of the decision as being in the ‘absolute discretion’ of the Commissioner.
Clear words are required to exclude an obligation to afford natural justice, where it would otherwise apply.[8] For the purposes of this application at this ex parte stage, I do not consider that the words ‘at its absolute discretion’ do oust the obligation. My preliminary view is that those words might exclude a requirement to consider any particular factor in the exercise of the discretion as to whether or not to conduct an internal review (and so limit judicial review of that decision by way of challenge to the factors considered). However, they do not exclude an obligation to give the complainant, or respondent, an opportunity to be heard before making the decision.
[8]Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252, 259 [14]; Annetts v McCann (1990) 170 CLR 596, 598.
My preliminary view that the Commissioner is bound to afford Mr Thomas natural justice in reaching the decision as to whether or not to conduct an internal review is reinforced by the requirement in s 316 to act fairly.
Both the decision under s 313 and the duties cast on the Commissioner in relation to complaints are created by statute, and so the ‘decision’ and the ‘tribunal’ here in question satisfy the jurisdictional requirements of the ALA. Mr Thomas is plainly aggrieved the closure of his complaint. For the purposes of this application, at this ex parte stage, I will proceed on the basis that his interests will be affected ‘to a substantial degree’ by the decision whether or not to conduct an internal review, although there is no evidence before me directly on the point, and it may be arguable. This would mean he is a ‘person affected’ as defined.
It follows that for current purposes I am satisfied that the jurisdictional requirements for an order under s 3 of the ALA are satisfied in respect of what is said by Mr Thomas to be the failure of the Commissioner to make a decision under s 313 of the Uniform Law.
Where Mr Thomas’ application fails, however, is in satisfying me that the Commissioner has, in fact, refused or failed to ‘perform a duty or to exercise a power’ to make a decision under s 313. The complaint was closed by letter dated 26 July 2018. Mr Thomas immediately requested an appeal, which is being treated as a request for review. The most recent indication from the Commissioner is that whether or not to undertake a review is still under consideration. That indication was given to Mr Thomas on 2 October 2018, just over a week before he first sought to make this application before me on 10 October 2018. For the reasons I elaborate below, I do not consider that the time involved from 1 August to 2 October 2018 to be so unreasonable that it could be said that the Commissioner has failed to exercise the power conferred on him by s 313, and he has plainly not refused to exercise it. To the contrary– as recently as 2 October 2018 the Commissioner informed Mr Thomas that the request is still under consideration.
There is no time period specified in the Uniform Law for the making of this decision, and the investigation of the complaint itself took some 10 months or so. It seems that the complaint and its investigation may have generated a considerable volume of correspondence and documentation, at least from Mr Thomas. While the Commissioner is under a duty, pursuant to s 317, to deal with complaints efficiently and expeditiously, this is only to the extent it is practicable to do so. One factor that will influence the time required is the obligation to give parties an opportunity to be heard, and consider their responses. Another is that the Commissioner has those obligations in respect of all complaints, not just those of Mr Thomas.
For these reasons, I do not consider that Mr Thomas has shown a prima case for review, even if I am correct in my assessment on this preliminary basis of the jurisdictional requirements.
It is possible that Mr Thomas may make a further application, if the time before a decision is made becomes very lengthy; the Commissioner refuses to make a decision; or Mr Thomas is aggrieved by the decision once made. In that eventuality, then the Court could be required to also consider whether to exercise the discretion to refuse relief, even where a prima facie case is shown. Expressing this further possible inquiry in this way is not meant to exclude further or different consideration of the jurisdictional requirements that I have assumed to be met in this application. Consideration of the discretion to refuse relief could require a more detailed analysis of the substance of the complaint (to determine whether the matter is of substantial importance) and the impact of the closure of the complaint on Mr Thomas (to determine whether or not a decision about internal review will impose any substantial injustice on him).
Mr Thomas did make some submissions in response to a question from me about any hardship to him arising from the time being taken to make a decision. He contended that he was now out of time to bring an application for judicial review of the decision to close his complaint under O 56 of the Rules because the Commissioner had led him to believe that she would conduct an internal review. I cannot see any such indication from the Commissioner in the correspondence in evidence. In response to a question from me as to why waiting on an internal review would, in any event, have prevented him from bringing an application under O 56, Mr Thomas responded that he had, in fact, sought to do so within time, on the 26 or 27 September 2018, but his application was not accepted for filing. It would seem then that Mr Thomas did not consider himself prevented from proceeding under O 56 while he awaits the decision of the Commissioner on internal review. I am not able to determine in this application why his application was not accepted for filing.
Mr Thomas also submitted that he was being prejudiced by delay in respect of the time period for requesting reasons specified by s 8 of the ALA, which is 90 days at the maximum from the making of the decision. In so far as this submission refers to a request for reasons for the closure of the complaint, the letters of 3 and 26 July 2018 state that they give the reasons for the decision. I do not here assess whether those reasons are, or are not, adequate, but I do not consider the submission to establish any prejudice in relation to time taken to make a decision about whether or not to conduct an internal review. If the submission relates to that decision, when made, then time to request reasons, if that is necessary, will only start to run from the making of the decision.
It is not necessary to further consider issues touching on the discretion to refuse relief, given my determination that Mr Thomas has not shown a prima facie case for relief.
Conclusion
For these reasons, I refuse Mr Thomas’ application for an order directed to the Victorian Legal Services Board and Commissioner in respect of an alleged failure or refusal to make a decision under s 313 of the Uniform Law as to whether or not to conduct an internal review of the closure of Mr Thomas’ complaint.
In addition to his application for an order to review pursuant to s 3 of the ALA, Mr Thomas also sought in this application to invoke the general supervisory power of the Court over legal practitioners and the power of judicial review preserved by s 155 of the Application Act. He sought to invoke those powers particularly in respect of his grievance with aspects of the investigation and closure of his complaint, including the decisions made to conduct a costs review and determination that the complaint concerned consumer, not disciplinary, matters. I make no decision or comment in these reasons about any avenue for judicial review or supervision of legal practitioners other than the application under s 3 of the ALA for alleged failure of the Commissioner to make a decision in relation to internal review. No other application is properly instigated, or supported.
Orders
The application is refused and the proceeding dismissed.
---
2
4
0