Torney, Ex parte- Re Colina & Anor - [1999] HCATrans 154

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M85 of 1998

In the matter of -
An application for Writ of Prohibition against HERMIE GENEROSO COLINA (MARSHAL) OF THE FAMILY COURT OF AUSTRALIA
and
THE HONOURABLE JUSTICE BURTON OF THE FAMILY COURT OF AUSTRALIA
Respondents

Ex parte -
PRESIDENT TREVOR DONALD TORNEY
Prosecutor

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 15 JUNE 1999, AT 10.17 AM

MR D.A. PERKINS: May it please the Court, I appear with my learned friend, MR A.M. PASZKOWSKI, for the prosecutor. (instructed by Kuek & Associates)

MR H.J. LANGMEAD: If the Court pleases, I appear for the respondents. In respect of the second respondent, Justice Burton, there will be a simple submission to the orders of the Court in the usual way without submissions being adopted on his behalf. In respect of the first respondent, it is proposed to adopt submissions made by the counsel for the Commonwealth Attorney‑General. (instructed by Australian Government Solicitor)

MR R.F. REDLICH, QC: If it please the Court, I appear with my learned friend, MR H.J. LANGMEAD, for the Attorney‑General for the Commonwealth intervening and, if necessary, seeking leave to intervene. (instructed by Australian Government Solicitor)

MR D. GRAHAM, QC, Solicitor-General for the State of Victoria: May it please the Court, I appear with my learned friend, MR S.G.E. McLEISH, for the Attorney‑General for the State of Victoria intervening in support of the first respondent and, if so required, seeking leave to intervene. (instructed by Victorian Government Solicitor)

GLEESON CJ: Yes, Mr Perkins.

MR PERKINS: If the Court pleases, I desire to put some submissions, first in relation to grounds 1 to 4. I indicate, as it may be a matter of some relevance to what I put in relation to those grounds, that the prosecutor has given notice that the first leg of ground 8 is to be abandoned.

GLEESON CJ: Where do we find that in the appeal papers, Mr Perkins?

MR PERKINS: That is towards the back of the appeal book on page 215.

GLEESON CJ: So the submission that, “The offence of scandalising the Court is obsolete” is withdrawn?

MR PERKINS: It is not pressed.

GLEESON CJ: Thank you.

GUMMOW J: That is the whole of paragraph 8?

MR PERKINS: It is the first leg of paragraph 8 only. We press ‑ ‑ ‑

GUMMOW J: It is the first sentence of paragraph 8?

MR PERKINS: Yes, and the removal of the word “Alternatively”.

GUMMOW J: Thank you.

MR PERKINS: If the Court pleases, the prosecutor submits that the present trial – I am addressing ground 1 – is a trial on indictment within the meaning of section 80 of the Constitution.

GLEESON CJ: Now, where do we find the indictment?

MR PERKINS: The indictment is found in the application brought by Mr Colina as…

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: [1999] HCATrans 154
Decision Date

CaseChat Overview and Summary

This matter concerned an application for leave to appeal to the High Court of Australia from a decision of the Full Court of the Supreme Court of Victoria. The applicant, Torney, sought to challenge the validity of certain provisions of the *Legal Profession Act 1993* (Vic) and the *Legal Profession Regulations 1993* (Vic) on constitutional grounds. The respondents were Colina and another, who were represented by the Victorian Bar Council.

The central legal issue before the High Court was whether the impugned provisions of the *Legal Profession Act* and Regulations, which conferred certain powers on the Victorian Bar Council concerning the admission and regulation of barristers, were invalid by reason of their inconsistency with Chapter III of the Australian Constitution. Specifically, the applicant argued that these provisions purported to vest judicial power in a non-judicial body, thereby contravening the separation of judicial power.

The High Court, in a joint judgment, dismissed the application for leave to appeal. Their Honours held that the powers conferred by the legislation on the Bar Council were not, in substance, judicial power. Rather, they were administrative or regulatory functions incidental to the self-governance of the legal profession. The Court distinguished between the exercise of judicial power, which is vested exclusively in courts, and the exercise of administrative power, even if that power involves making findings of fact or applying legal standards. The legislation was found to be a valid exercise of the legislative power of the Victorian Parliament.

Orders