Victorian Legal Services Commissioner v Francis Cahill
[2017] VSCA 283
•6 October 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0055
| VICTORIAN LEGAL SERVICES COMMISSIONER | Applicant |
| v | |
| FRANCIS CAHILL | Respondent |
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| JUDGES: | TATE, KYROU and HANSEN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 September 2017 |
| DATE OF JUDGMENT: | 6 October 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 283 |
| JUDGMENT APPEALED FROM: | Cahill v Victorian Legal Services Commissioner [2017] VSC 177 (Keogh J) |
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LEGAL PRACTITIONERS – Disciplinary powers of Legal Services Commissioner – Whether Commissioner has power to summarily dismiss complaint before completing investigation – Legal Profession Act 2004 ss 4.2.10(1), 4.4.7, 4.4.13, 4.4.14 – Application for leave to appeal granted but appeal dismissed.
LEGAL PRACTITIONERS – Formalities for a complaint – Approved complaint form – Whether an email from a complainant requesting resumption of investigation of a previously dismissed complaint constitutes a new complaint – Legal Profession Act 2004 ss 4.2.6, 4.2.10(1)(c).
APPEAL – Whether judge’s factual finding that Commissioner had decided that a complaint did not require further investigation should be disturbed on appeal – Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C M Scerri QC with Ms R J Sharp | Lander & Rogers |
| For the Respondent | Dr K P Hanscombe QC with Mr D C Oldfield | Altius Partners |
TATE JA:
I have had the benefit of reading the reasons of Kyrou JA, in draft form. I agree, for the reasons his Honour gives, that the application for leave to appeal should be granted but the appeal dismissed.
KYROU JA:
Introduction and summary
This is an application for leave to appeal against an order made by a judge of the Trial Division quashing decisions made by the applicant, the Victorian Legal Services Commissioner (‘Commissioner’), pursuant to the now repealed Legal Profession Act 2004 (‘LPA’).[1] The Commissioner’s decisions related to a complaint made against the respondent, a lawyer, by a former client, Ms Jing Li.
[1]Cahill v Victorian Legal Services Commissioner [2017] VSC 177 (‘Reasons’).
Ms Li had engaged the respondent to act as her lawyer in 2010. On 15 October 2012, she lodged with the Commissioner a complaint dated 10 October 2012 concerning the respondent’s conduct in dealing with $300,000 his firm held on trust for her.
On 21 December 2012, Ms Li issued a proceeding in the County Court against the respondent, among others, claiming damages in relation to the handling of the trust funds.
On 6 February 2013, the Commissioner accepted a recommendation in an internal memorandum that, as the issues the subject of the County Court proceeding were identical to those in Ms Li’s complaint, he should summarily dismiss the complaint pursuant to s 4.2.10(1)(f) of the LPA.[2] That section relevantly provides
that the Commissioner may dismiss a disciplinary complaint if, having considered it, he has formed the view that it required no further investigation.[3]
[2]Some of the decisions and actions which are the subject of this proceeding were made or taken by a delegate of the Commissioner. For ease of exposition, I will generally refer to the Commissioner rather than the delegate.
[3]Section 4.2.10 and other relevant provisions of the LPA are set out at [15]–[25] below.
On 22 August 2013, the County Court made a consent order dismissing the proceeding with no order as to costs. On that day, Ms Li sent an email to the Commissioner (‘Li email’) which relevantly stated as follows:
My case at county court is formally dismissed today … I hope that you could proceed with the investigation of my claim against [the respondent] now.
On 23 August 2013, the Commissioner resumed his investigation.
As a result of the investigation, on 30 June 2015, the Commissioner made an application to the Victorian Civil and Administrative Tribunal (‘VCAT’) pursuant to s 4.4.13 of the LPA for the respondent to be dealt with on four charges of professional misconduct (‘VCAT application’).
The respondent applied to the Trial Division for relief against the Commissioner pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘judicial review proceeding’). He sought orders quashing the Commissioner’s decision of 23 August 2013 to continue his investigation (‘first decision’) and his decision of 30 June 2015 to make the VCAT application (‘second decision’).
The judge held that the Commissioner had the power to, and did, dismiss the complaint pursuant to s 4.2.10(1)(f) of the LPA and that once he did so, he was functus officio and had no power to continue the investigation or make the application to VCAT. The judge also held that, following the Li email, the complaint that the Commissioner investigated was Ms Li’s original complaint rather than a new complaint.
Initially, the Commissioner sought leave to appeal on four grounds. Ground 1 alleged that the judge misconstrued s 4.2.10(1)(f); Ground 2 alleged that the judge erred in deciding that the complaint had been validly dismissed pursuant to that section; Ground 3 alleged that the judge erred in finding that the Commissioner formed the view that the complaint required no further investigation; and Ground 4 alleged that the judge erred in determining that the Commissioner was functus officio.
At the hearing of the application for leave to appeal, the Commissioner sought leave to add a fifth ground of appeal, namely, that the judge erred in finding that the complaint that the Commissioner investigated following the Li email was her original complaint rather than a new complaint. After initially opposing the application to add this new ground, in the course of oral argument, the respondent informed the Court that he no longer resisted the application. As the new ground did not depend on any new evidence but rather turned on the construction of the written communications between Ms Li and the Commissioner, the Court granted him leave to add the new ground.
In the course of oral argument, the Commissioner conceded that Ground 4 could only succeed if Ground 5 succeeded. As success on Ground 5 would be sufficient for the appeal to be allowed irrespective of the fate of Ground 4, the Commissioner informed the Court that he did not press Ground 4. In these circumstances, it is not necessary for the Court to consider Ground 4.
For the reasons that follow, I would grant the application for leave to appeal but dismiss the appeal.
Relevant statutory provisions
Chapter 4 of the LPA deals with disciplinary action against legal practitioners. Section 4.1.1 states that the purposes of ch 4 are as follows:
(a)to provide a scheme for the discipline of the legal profession in [Victoria], in the interests of the administration of justice and for the protection of consumers of legal services and the public generally;
(b)to promote and enforce the professional standards, competence and honesty of the legal profession;
(c)to provide a means of redress for complaints about the legal profession.
Part 4.2 deals with the making of complaints. Part 4.3 deals with civil complaints and pt 4.4 deals with disciplinary complaints.
While s 4.2.2(1) defines ‘civil complaint’ and s 4.2.3(1) defines ‘disciplinary complaint’,[4] the LPA does not contain any definition of ‘complaint’ other than ‘a complaint made under Chapter 4’. The Commissioner submitted that ‘complaint’ should be given its ordinary meaning and relied on the following definition in the Shorter Oxford English Dictionary: ‘A statement of injury or grievance laid before a court … for purposes of prosecution and redress; an accusation or charge …’. The issues calling for resolution in the present case do not require me to express any view on the meaning of ‘complaint’.
[4]A ‘disciplinary complaint’ is defined as ‘a complaint about conduct to which this Chapter applies to the extent that the conduct, if established, would amount to unsatisfactory professional conduct or professional misconduct’.
Section 4.2.6(1) provides that ‘[a] complaint must be in writing in the form approved by the Commissioner’. The Commissioner has approved a form for the purposes of s 4.2.6(1). It is common ground that Ms Li’s complaint dated 10 October 2012 was in that form but that at no stage did she complete any second form. Section 4.2.6(2) states that a complaint must include: the name and address of the complainant; the name of the legal practitioner who is the subject of the complaint; the name of the legal practitioner’s law practice; details of the conduct complained about; and ‘if the complainant is seeking compensation for pecuniary loss, the amount of the loss or the complainant’s best estimate of the amount’.
Section 4.2.7(1) provides that, subject to exceptions which are not presently relevant, a complaint must be made within six years after the conduct complained about allegedly occurred. Section 4.4.8 empowers the Commissioner to investigate a legal practitioner’s conduct on the Commissioner’s own motion, including where that conduct was the subject of a complaint that has been withdrawn. The LPA does not prescribe a limitation period for an ‘own motion’ investigation.
Pursuant to s 4.2.8, the Commissioner must give to a legal practitioner who is the subject of a complaint, notice of that complaint as soon as practicable after it is made.
Section 4.2.10 confers on the Commissioner power to summarily dismiss a complaint. The section relevantly provides as follows:
4.2.10 Summary dismissal of complaints
(1) The Commissioner may dismiss a complaint if—
(a)further details are not given, or the details of the complaint or further details are not verified, as required by the Commissioner under section 4.2.9; or
(b)the complaint is vexatious, misconceived, frivolous or lacking in substance; or
(c)the conduct complained about has been the subject of a previous complaint that has been dismissed; or
(d)the conduct complained about is the subject of another complaint; or
(e)the complaint is not one that the Commissioner has power to deal with; or
(f)in the case of a disciplinary complaint, the Commissioner, having considered the complaint, forms the view that—
(i)it is not in the public interest to investigate the complaint because the subject of the complaint is an Australian legal practitioner whose name has been removed from the local roll; or
(ii) the complaint requires no further investigation.
(2)If the Commissioner dismisses a complaint under this section, he or she must give the complainant a written notice of the dismissal including the reasons for the dismissal. …
Section 4.2.11(1)(b) provides that a disciplinary complaint must be dealt with in accordance with pt 4.4. Section 4.4.7 requires the Commissioner to investigate disciplinary complaints. It provides as follows:
4.4.7 Disciplinary complaints to be investigated
(1)The Commissioner is required to investigate each disciplinary complaint.
(2)This section does not apply to—
(a)a complaint referred to a prescribed investigatory body under section 4.4.9; or
(b)a complaint taken over or referred to a corresponding authority; or
(c)a complaint that is dismissed under Part 4.2 or withdrawn.
(3)Nothing in this section prevents the Commissioner from investigating or further investigating a complaint referred to a prescribed investigatory body.
Section 4.4.11 empowers the Commissioner to require a legal practitioner who is subject to an investigation to provide information to the Commissioner.
Section 4.4.13 sets out what the Commissioner must do after an investigation of a disciplinary complaint is completed. It relevantly provides as follows:
4.4.13 What happens after an investigation is completed?
(1)After an investigation has been completed under this Division, the Commissioner must deal with the matter in accordance with this section.
(2)The Commissioner must apply to [VCAT] for an order under Division 4 in respect of the Australian legal practitioner the subject of the investigation if the Commissioner is satisfied that there is a reasonable likelihood that [VCAT] would find the practitioner guilty of professional misconduct.
(3)If the Commissioner is satisfied that there is a reasonable likelihood that [VCAT] would find the practitioner guilty of unsatisfactory professional conduct, the Commissioner may—
(a)apply to [VCAT] for an order under Division 4 in respect of the practitioner; or
(b)with the consent of the practitioner, reprimand or caution the practitioner; or
(c)take no further action against the practitioner if satisfied that—
(i)the practitioner is generally competent and diligent; and
(ii)there has been no substantiated complaint (other than the complaint that led to the investigation) about the conduct of the practitioner within the last 5 years.
…
(5)If the Commissioner is satisfied that there is no reasonable likelihood that [VCAT] would find the practitioner guilty of professional misconduct or unsatisfactory professional conduct, the Commissioner must take no further action against the practitioner. …
Section 4.4.14 provides as follows:
4.4.14 Notice of decision
(1)If an investigation arose from a complaint, the Commissioner—
(a)must give the complainant written notice of his or her decision under section 4.4.13 as soon as practicable after making it, including the reasons for the decision; and
(b)if the decision is to take no further action against the practitioner, must dismiss the complaint.
(2)The Commissioner must give written notice to an Australian legal practitioner of a decision under section 4.4.13 not to take any further action against the practitioner.
The LPA does not confer express power on the Commissioner to postpone investigating a disciplinary complaint pending certain events, such as the conclusion of related legal proceedings. However, before this Court it was common ground that the LPA does not preclude the Commissioner from adopting such a course and that such a course would be appropriate in particular situations.
Facts and procedural history
When the respondent was engaged by Ms Li in 2010 to act as her lawyer, he was a principal of the law firm Hambros & Cahill. On 7 March 2011, Ms Li gave him a bank cheque for $300,000, which was paid into the trust account of Hambros & Cahill. On 18 March 2011, Ms Li signed a letter authorising and directing Hambros & Cahill to pay ‘all monies held by them on [her] behalf, to BH Accounting Solutions Pty Ltd’.[5] Following the transfer of $100,000 to the office account of Hambros & Cahill in payment of two invoices for legal costs on 8 and 21 March 2011, the firm transferred the balance of the trust funds of $200,000 to BH Accounting Solutions Pty Ltd (‘BH’) with the following notation: ‘To BH … as per your instructions for business investment.’
[5]Ms Li disputes the authenticity of the letter of authority.
As I have already stated, on 15 October 2012, Ms Li lodged a complaint with the Commissioner. She used the complaint form approved by the Commissioner under s 4.2.6(1). In her complaint, Ms Li stated that she had given the respondent the bank cheque for $300,000 to be paid into the Hambros & Cahill trust account and then invested as recommended by him. It is implicit from the complaint that Ms Li denies that she authorised the use of $100,000 of the trust funds to pay the two invoices. In response to the question ‘What do you hope to achieve by making this complaint?’, Ms Li stated: ‘For the lawyer to respond to my question, release the paperwork and to return the full amount of the money I gave him $300,000.’
In her complaint, Ms Li alleged that the respondent had represented to her that he had a ‘safe investment strategy that has been proved to have a high return in the past’ and that he would ‘look after everything’. Ms Li also gave details of her correspondence with the respondent and her attempts to obtain information about the use of the trust funds.
The Commissioner determined that the complaint was a disciplinary complaint and commenced to investigate it as required by s 4.4.7. The investigating officer was Greg Trewin.
By letter dated 18 October 2012, the Commissioner sent a copy of the complaint to the respondent pursuant to s 4.2.8 and, pursuant to s 4.4.11(1), sought a written explanation of his conduct and copies of any relevant documents. The letter relevantly stated as follows:
Ms Li has raised the following concerns:
1.You have not accounted to her for the $300,000 she invested with you on 7 March 2011.
2.You have failed to respond in any meaningful way to her requests for information relating to the investment and its performance since around March 2012, other than to advise that it was to be held for a [fixed] term of 18 months with penalties applying for early withdrawal. She was not advised of this previously.
3.You advised her you had appointed a ‘professional’ to manage her investment. She has been unable to obtain any meaningful information about her investment from this person.
The respondent provided a written explanation for his conduct by letter to the Commissioner dated 19 November 2012. He denied Ms Li’s allegations and stated that Hambros & Cahill had ‘acted at all times beyond reproach’.
On 13 December 2012, Hambros & Cahill issued a further invoice for legal costs to Ms Li in the amount of $25,000. This and the previous two invoices totalled $125,000.
On 21 December 2012, before the investigation was completed, Ms Li commenced a proceeding against the respondent, Hambros & Cahill, BH and two others, in the County Court, seeking damages and associated relief in relation to the trust funds.
On 15 January 2013, the respondent informed the Commissioner of the County Court proceeding. The Commissioner then obtained a copy of the County Court writ from Ms Li.
On 30 January 2013, Mr Trewin sent an email to Ms Li advising as follows:
At this stage this office will need to close the investigation file. When the court case is finalised you can advise this office of such and you can seek to have the investigation reinstated.
On 6 February 2013, Mr Trewin prepared an internal memorandum in which he recommended that the complaint ‘be dismissed pursuant to section 4.2.10(1)(f) of the [LPA]’ for the following reasons:
The issues in [the County Court proceeding] are identical to [Ms Li’s] complaint, in that Ms Li seeks return of her money that she says was provided to [the respondent] for investment purposes.
As it would be inappropriate for this investigation to continue whilst the matter is before the court, this matter must now be closed.
A delegate of the Commissioner indicated that she agreed with the internal memorandum, signed it, and dated her signature 6 February 2013.
On 6 February 2013, the Commissioner sent a letter to Ms Li advising her that the complaint had been dismissed. The letter relevantly stated as follows:
As the matters forming your statement of claim [in the County Court proceeding] are directly related to your complaint with my office, it would be inappropriate for this office to continue to investigate a matter that is currently before the courts. Accordingly I propose to dismiss your complaint under section 4.2.10(1)(f) of the [LPA].
You may however wish to re-raise the complaint once court proceedings have been finalised and you may wish to raise any adverse comments or findings by the court in any new complaint.
On the same day, the Commissioner also sent a letter to the respondent. The letter relevantly stated as follows:
As [the County Court] proceedings relate directly to Ms Li’s complaint to my office it would be inappropriate for me to continue to investigate the matter. Accordingly I have decided to summarily dismiss the complaint under section 4.2.10(1)(f) of the [LPA].
I have advised Ms Li that if she wishes when the legal proceedings are finalised she can refer her complaint back to me for my consideration. I have also advised her that if she does, she should give me details of relevant comments made by the Court.
As I have already stated, on 22 August 2013, after the County Court dismissed the proceeding with no order as to costs, Ms Li sent the Li email to the Commissioner.
On 23 August 2013, Mr Trewin sent an email to the respondent advising him that, as the County Court proceeding had been ‘discontinued’, ‘Ms Li now wishes the [Commissioner] to recommence [his] investigation and has re-raised her complaint.’ He added that, as ‘there is no longer any legal impediment to that, the matter will be re-raised.’
On 7 October 2013, the Commissioner sent a letter to the respondent, stating:
I confirm that Ms Li has requested my office to continue the investigation of her complaint about you that was previously closed on 6 February 2013. Please take this letter as written notice under section 4.2.8 of the [LPA]. As you have already been provided with a copy of Ms Li’s complaint I do not enclose a further copy now, but I will provide a further copy if you wish.
I note that the County Court proceedings germane to the complaint have been dismissed, therefore my office will now continue with the investigation. A new complaint file has been opened and has been given a [new] reference number …
The letter included further requests for information pursuant to s 4.4.11(1).
On 11 October 2013, the respondent sent a letter to the Commissioner requesting that he be provided with ‘a copy of the complaint made by Ms Li in its entirety’. In response to that letter, on 11 October 2013, Mr Trewin sent to the respondent a copy of Ms Li’s complaint form dated 10 October 2012 by email. He described it as ‘Ms Li’s initial complaint as lodged with this office’. The respondent then requested confirmation that the complaint form constituted the ‘entire complaint and issues in dispute made by Ms Li’. Mr Trewin responded to that email on the same day in the following terms:
The attachment [the complaint form] contains the entire complaint as lodged by Ms Li.
Additional matters of concern have been raised subsequently and they flow from your response of the 19 November 2012 to this office, of matters Ms Li states she was unaware of at the time of lodging the complaint.
Those matters relate to the Cost disclosure, three subsequent bills totalling $125,000, and her assertion she did not authorise you to deduct $100,000 from her investment of $300,000.
Should [you] require this to be confirmed and placed in a letter, please advise and I will do so.
Also on 11 October 2013, the respondent requested by email that Mr Trewin ‘have Ms Li articulate this latest addition to her original complaint in writing … [in] the form of a sworn or affirmed statutory declaration’.
On 16 October 2013, Mr Trewin sent a further email to the respondent which stated, relevantly, as follows:
There is no necessity for Ms Li to further articulate her complaint. As a result of her initial complaint (and in response to it) you rely upon a series of bills that Ms Li was not aware of at the time of her making the complaint. These bills, you say, partially explain the disposition of her $300,000 that was the subject of the complaint. The validity of the issuance of these bills and their quantum has been raised with this office by Ms Li and does not require separate articulation. Nor does any additional concern need to be by way of statutory declaration. …
The concerns for the [Commissioner] are;
Did you act appropriately and under instructions in the circumstances surrounding the acceptance of Ms Li’s $300,000?
Did you act appropriately and under instructions in the disposition of the $300,000?
Were you entitled to withhold $100,000 for legal fees from the $300,000?
Did you as a matter of fact, issue a cost disclosure on or around 30 July 2010?
Did you as a matter of fact, issue a bill for $60,000 on or around 6 December 2010?
Did you as a matter of fact, issue a bill for $40,000 on or around 1 March 2011?
In the circumstances, is there evidence that you performed legal service for Ms Li to the value of $125,000, excluding work performed on her visa matters?
In a letter dated 29 October 2013, the respondent outlined a number of concerns he had in relation to the conduct of the investigation. He stated that there was a need for Ms Li to further articulate her complaint in accordance with s 4.2.6 and that her failure to do so meant he would be denied procedural fairness.
In response, the Commissioner sent to the respondent a letter dated 5 December 2013 which relevantly stated as follows:
I confirm that the matters I am investigating are:
1.What instructions were given by Ms Li to you in relation to the $300,000 she paid to your firm.
2.Your or your firm’s entitlement to deduct $100,000 from this money for legal fees.
3.Whether legal services were provided to the value of $125,000 to Ms Li.
4.Whether cost disclosure was given in relation to the matters for which fees have been purportedly charged.
5.Whether the two earliest bills totalling $100,000 were issued to Ms Li.
6.Whether you have in general acted appropriately in handling Ms Li’s $300,000 payment to your firm.
…
I am satisfied with the way this complaint has been articulated to you by my letter dated 7 October 2013. The investigation matters numbered above, flow from Ms Li’s complaint and are a natural progression from that complaint.
By letter dated 12 November 2014, Mr Trewin informed the respondent that the investigation was close to being finalised, and that once the investigation was complete the Commissioner was required to make a decision under s 4.4.13. The letter described conduct by the respondent which it was said could amount to professional misconduct or unsatisfactory professional conduct and invited him to respond. He did so by letter to the Commissioner dated 13 February 2015.
On 30 June 2015, the Commissioner filed the VCAT application pursuant to s 4.4.13(2). The VCAT application referred to Ms Li’s complaint dated 10 October 2012 which it defined as ‘the complaint’. The VCAT application did not refer to the Li email.
On 15 June 2016, the respondent commenced the judicial review proceeding. As I have already stated, he sought orders quashing the Commissioner’s first and second decisions. He also sought an order prohibiting the Commissioner from continuing the VCAT application. The grounds upon which relief was sought were as follows:
1.The [Commissioner] fell into jurisdictional error in purporting to continue the investigation of the Complaint after he had dismissed it.
Particulars
The [LPA] does not provide power to the [Commissioner] to investigate or continue to investigate a complaint which he has summarily dismissed pursuant to section 4.2.10(1)(f) of [the LPA].
2.In the alternative to paragraph 1 above, the [Commissioner] fell into jurisdictional error in treating a dismissed complaint as a new complaint.
Particulars
The [LPA] does not provide power to treat a complaint which [the Commissioner] has summarily dismissed pursuant to section 4.2.10(1)(f) of [the LPA] as a new complaint.
3.Once he had dismissed the Complaint pursuant to section 4.2.10(1)(f) of [the LPA], the [Commissioner] was functus officio in relation to the Complaint.
4.The [Commissioner] fell into further jurisdictional error in applying to [VCAT] for orders under Division 4 of Part 4.4 of the [LPA] against the [respondent] in relation to the Complaint or its subject matter.
Particulars
The [Commissioner] has power under the [LPA] to apply to VCAT for orders only as provided by section 4.4.13 of the [LPA]. Having summarily dismissed the Complaint, the [Commissioner], being functus officio in relation to the Complaint, did not have the power to take any further action against the [respondent] in relation to the Complaint, including any action pursuant to section 4.4.13(2) of the [LPA], as he had purported to do by his [VCAT application].
5.Unless prohibited, the [Commissioner] proposes to continue to conduct the VCAT proceedings. …
The VCAT application was adjourned pending determination of the judicial review proceeding. It remains adjourned.
Issues at trial and judge’s decision
The judicial review proceeding was conducted on the basis of affidavit evidence without any cross-examination.
In his written submissions, the respondent contended that, by opening a new file with a new reference number, ‘it would appear that the [Commissioner] purported to treat the dismissed complaint as a new complaint’. The respondent submitted that the LPA did not empower the Commissioner to do so. In his written submissions in response, the Commissioner stated that the respondent’s contention that the Commissioner treated the complaint as a new complaint ‘cannot be maintained’. The Commissioner added the following:
[T]he first paragraph of the 7 October 2013 letter confirms that the investigation was continuing in relation to the complaint made in October 2012. On that basis, no further copy of the complaint was provided. That is because there was no new complaint, nor any new investigation. The investigation commenced in October 2012 was merely enlivened in October 2013.
However, in his oral submissions at trial, the Commissioner contended that, although the Li email did not amount to a ‘different complaint’, Ms Li’s original complaint dated 10 October 2012 ‘was re-made in effect’ and thus ‘[i]t could be characterised as a new complaint’.
The judge considered three questions. They were: whether the Commissioner had dismissed the complaint; whether the Commissioner had power to continue the complaint and the investigation; and whether the Commissioner had power to make the VCAT application.[6]
[6]Before considering these questions, the judge decided to grant the respondent an extension of time within which to commence the judicial review proceeding. See Reasons [16]–[27].
In considering the first question, the judge referred to the internal memorandum and said that the recommendation in it to dismiss the complaint ‘was expressed without reservation and in unambiguous terms’.[7] He said the following:
The delegate of the Commissioner accepted the recommendation and, by sending the notifying letters to Ms Li and [the respondent] on the same day, implemented the decision to dismiss the complaint. The memorandum is evidence of a conclusion by the delegate that the complaint did not require further investigation because the issues it dealt with were identical to those in the County Court proceeding.[8]
[7]Reasons [37].
[8]Reasons [37].
In relation to the letters dated 6 February 2013 to Ms Li and the respondent, the judge said that it was not clear what the Commissioner meant by references in those letters to ‘re-raising’ the complaint, ‘any new complaint’ and referring the complaint back to the Commissioner.[9] He said the following:
There was no evidence given by the Commissioner or the delegate to explain the letters of 6 February 2013 or the decision recorded in the memorandum. The contents of the notifying letters to Ms Li and [the respondent] are not inconsistent with a conclusion that the Commissioner had decided to dismiss the complaint because he formed the view that it did not require further investigation.[10]
[9]Reasons [38]. See [39]–[40] above.
[10]Reasons [38].
The judge also held that the focus of the Commissioner’s submissions on the terms of the letter to the respondent was misplaced because ‘the letter was not the decision of the Commissioner’.[11] He said the following:
The letter was notice of the decision required to be given pursuant to s 4.2.10(2) of the LPA. The decision was made by the Commissioner in response to the memorandum of the investigating officer, and is recorded in the memorandum.[12]
[11]Reasons [39].
[12]Reasons [39].
The judge held that the Commissioner had the power to, and on 6 February 2013 did, dismiss the complaint pursuant to s 4.2.10(1)(f).[13] His conclusion was in the following terms:
The Commissioner had power to dismiss the complaint once he formed ‘the view that the complaint requires no further investigation.’ There is nothing in s 4.2.10 which limited the power to dismiss to the preliminary stage before investigation commenced. The words used in s 4.2.10(1)(f) give the Commissioner power to dismiss a complaint after an investigation is underway.
By agreeing to the recommendation in the internal memorandum the Commissioner decided to dismiss the complaint pursuant to s 4.2.10(1)(f) of the LPA. The Commissioner did so because he formed the view that the complaint required no further investigation. The decision was made within power and resulted in the complaint being dismissed.[14]
[13]Reasons [40]–[41], [51].
[14]Reasons [40]–[41].
In considering the second question, the judge first found that on 23 August 2013, the Commissioner decided to continue investigation of the complaint he had dismissed on 6 February 2013 rather than treating that complaint as a new complaint.[15] He said the following:
[I]n response to a number of enquiries from [the respondent] as to the particulars of the complaint he was now facing, the Commissioner made it clear that the investigation being conducted was of the complaint originally made by Ms Li, not of any new or further complaint. When the investigation of the complaint was completed, the Commissioner made the VCAT application pursuant to s 4.4.13(2) of the LPA. The VCAT application records the complaint signed by Ms Li on 10 October 2012, investigation of that complaint and the charges of professional misconduct resulting from the complaint and the investigation. There was no evidence of a new complaint having been made against [the respondent] which was investigated and resulted in the VCAT application. Nor is there evidence that the Commissioner decided to investigate the conduct of [the respondent] without a complaint pursuant to s 4.4.8 of the LPA.[16]
[15]Reasons [43], [50].
[16]Reasons [42].
The judge then considered the consequence of the application of the provisions of the LPA and held as follows:
The powers of the Commissioner are prescribed by the provisions of the LPA. The Commissioner initially received the complaint pursuant to Part 4.2 of the LPA then determined pursuant to s 4.2.11 that it was a disciplinary complaint. Investigation of the complaint was commenced as was required by s 4.4.7(1). On 6 February 2013 the Commissioner dismissed the complaint pursuant to s 4.2.10(1)(f). The effect of dismissing the complaint was to terminate it without the need for further investigation. Pursuant to s 4.4.7(2)(c) the requirement to continue to investigate the complaint did not apply once the complaint was dismissed.
There is no power in the LPA for the Commissioner to continue investigation of a complaint after the Commissioner has dismissed the complaint pursuant to s 4.2.10(1). The LPA confers no power on the Commissioner to revoke the decision which he made to dismiss the complaint.[17]
[17]Reasons [44]–[45].
The judge rejected the Commissioner’s submission that summary dismissal pursuant to s 4.2.10(1)(f) did not finally determine the complaint. The judge said the following:
For the following reasons I conclude this submission is without merit. First, there is no evidence that a new complaint was made or that the Commissioner decided to investigate the conduct of [the respondent] pursuant to s 4.4.8. Rather, the Commissioner decided on 23 August 2013 to continue investigation of an already dismissed complaint. Second, there was no evidence of new material which might arguably justify further investigation of the conduct which was the subject of the dismissed complaint. In the absence of new material, further investigation of that conduct of [the respondent] would likely be an abuse of process. Third, recommencing an investigation after the complaint was dismissed and finally dealt with runs counter to the paramount considerations of finality and certainty which underlie such a supervisory system.
…
[O]nce dismissed, the complaint and the investigation were at an end … [T]he decision made by the Commissioner on 23 August 2013 to continue the complaint and the investigation was beyond power and therefore of no effect.[18]
[18]Reasons [48], [51] (citations omitted).
In the light of his conclusions in relation to the first two questions, the judge found as follows in relation to the third question:
The decision of 30 June 2015 to make the VCAT application necessarily depended on the earlier decision to continue the complaint and the investigation. Pursuant to s 4.4.13 of the LPA the step of applying to VCAT can only be taken after an investigation had been completed. Because the complaint and investigation had been dismissed, and the Commissioner was functus officio, there was no power to continue the investigation to completion or to make the application to VCAT. The decisions of the Commissioner to commence and to continue the VCAT application are infected by error.[19]
[19]Reasons [52].
Grounds of appeal
The extant proposed grounds of appeal are in the following terms:
1The Honourable Justice Keogh erred in his construction of s 4.2.10(1)(f) of the Act;
2The Honourable Justice Keogh erred in deciding that, on 6 February 2013, the Commissioner (by his delegate) pursuant to s 4.2.10(1)(f) of the Act validly dismissed the complaint of Jing Li dated 10 October 2012 about the conduct of the Respondent (the Complaint), which he was investigating pursuant to Division 3 of Part 4.4 of the Act;
3The Honourable Justice Keogh erred in deciding that the Commissioner formed the view that the Complaint required no further investigation; and
…
5Further and alternatively, the Honourable Justice Keogh erred in finding ‘There was no evidence of a new complaint having been made against [the respondent] which was investigated and resulted in the VCAT application.’ His Honour should have found that a complaint was made on 22 August 2013.
Grounds 1 and 2: Scope of power in s 4.2.10(1)(f) of the LPA
Principles of statutory interpretation
The principles of statutory interpretation were not in dispute either at trial or before this Court. In relation to those principles, it suffices to say that the primary focus of statutory interpretation must be the actual language used in the text of the statutory provision under consideration. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT),[20] Hayne, Heydon, Crennan and Kiefel JJ stated:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[21]
[20](2009) 239 CLR 27 (‘Alcan’).
[21]Alcan (2009) 239 CLR 27, 46–7 [47] (citations omitted). See also Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39]; Thiess v Collector of Customs (2014) 250 CLR 664, 671 [22].
Section 35(a) of the Interpretation of Legislation Act 1984 provides as follows:
35 Principles of and aids to interpretation
In the interpretation of a provision of an Act or subordinate instrument—
(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object …
In Project Blue Sky Inc v Australian Broadcasting Authority,[22] McHugh, Gummow, Kirby and Hayne JJ emphasised that ‘a court construing a statutory provision must strive to give meaning to every word of the provision’.[23] A court should also avoid a construction that produces irrational or unjust outcomes where there is available a competing construction that is reasonably open and does not produce such outcomes.[24]
[22](1998) 194 CLR 355 (‘Project Blue Sky’).
[23]Project Blue Sky (1998) 194 CLR 355, 382 [71].
[24]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297,
304–5.
Parties’ submissions on Grounds 1 and 2
In his written submissions, the Commissioner contended that, upon receipt of a complaint, the first question that the LPA required him to determine was whether the complaint was civil or disciplinary, or ought to be summarily dismissed. He submitted that if he determined that a complaint was a disciplinary complaint and was not to be summarily dismissed, it had to be dealt with in accordance with pt 4.4.[25]
[25]The Commissioner referred to ss 4.2.11(1)(b) and 4.4.7(1).
In relation to investigations, the Commissioner submitted that s 4.4.7 obliged him to investigate each disciplinary complaint, except certain complaints, including those summarily dismissed. He contended that, although s 4.4.7(2)(c) provides that he is not required to investigate a disciplinary complaint that is dismissed under s 4.2.10(1), he retained a discretionary power to do so.
According to the Commissioner, once an investigation of a disciplinary complaint was commenced under s 4.4.7, the only powers available to him for the disposition of the investigation, including dismissal of the complaint, were those set out in ss 4.4.13 and 4.4.14(1)(b). This meant, so it was said, that the power to summarily dismiss a complaint under s 4.2.10(1) was not available to be exercised in relation to a complaint being investigated pursuant to s 4.4.7.
The Commissioner submitted that properly construed, the ‘further investigation’ referred to in s 4.2.10(1)(f)(ii) is a reference to the consideration of a complaint contemplated in the chapeaux to s 4.2.10(1). According to the Commissioner, ‘[t]hat consideration is required to determine whether or not to formally investigate the complaint, as was identified in Byrne v Marles[26] and Byrne v Legal Services Commissioner’.[27] This meant, so it was said, that once the Commissioner determined to formally investigate a complaint, s 4.2.10(1) ceased to apply.
[26](2008) 19 VR 612, 627 [49], 637 [85], 638 [87].
[27][2009] VSC 210 [16].
The Commissioner’s written submissions contended that any decision by him as at 6 February 2013 to summarily dismiss Ms Li’s complaint under s 4.2.10(1)(f) was of no effect because, as at that time, he did not have power to dismiss it either under s 4.2.10(1) or under s 4.4.14(1)(b). Section 4.2.10(1) was said not to be applicable because the Commissioner had commenced the formal investigation of the complaint under pt 4.4. Section 4.4.14(1)(b) was said not to be applicable because the Commissioner had not yet completed his investigation of that complaint and had not, at that stage, decided under s 4.4.13(5) that there was no reasonable likelihood that VCAT would find the respondent guilty of professional misconduct or unsatisfactory professional conduct.
In his oral submissions, the Commissioner resiled from the above position. He conceded that, notwithstanding that he had commenced investigating a disciplinary complaint under pt 4.4, he retained the power under s 4.2.10(1) to summarily dismiss it, including where, having considered the complaint, he formed the view that it required no further investigation.
The respondent submitted that the judge had correctly held that the Commissioner had power under s 4.2.10(1)(f) to dismiss Ms Li’s complaint once he formed the view that it required no further investigation. According to the respondent, there was nothing in s 4.2.10 which limited the power of the Commissioner to dismiss a complaint to the preliminary stage before an investigation commenced, and s 4.2.10(1)(f) gave the Commissioner power to dismiss a complaint the subject of an incomplete investigation. It followed, so it was said, that the judge did not err in finding that Ms Li’s complaint had been validly dismissed in accordance with that section.
Decision on Grounds 1 and 2
In my opinion, Grounds 1 and 2 are not made out.
The Commissioner was right to resile from the position set out in his written submissions. The position he adopted orally is correct: the fact that he had commenced an investigation of a disciplinary complaint under pt 4.4, did not mean that he ceased to have power under s 4.2.10(1) to summarily dismiss that complaint. At that stage, s 4.4.14(1)(b) was not the only source of power to dismiss the complaint.
The position set out in the Commissioner’s written submissions is inconsistent with the principles of statutory construction set out at [69] above because it fails to give effect to the word ‘further’ in the phrase ‘forms the view that … the complaint requires no further investigation’ in s 4.2.10(1)(f). That word presupposes that an investigation has already commenced and thus precludes that section from being construed as having no application once an investigation into a complaint has begun. Further, the use of the present tense in s 4.4.7(2)(c) is consistent with a dismissal of a complaint under s 4.2.10(1)(f) at any time during an incomplete investigation.
In addition, the construction of s 4.2.10(1)(f) set out in the Commissioner’s written submissions had the potential to create a significant gap in the regulatory scheme set out in ch 4. The power to dismiss a disciplinary complaint under s 4.4.14(1)(b) applies only where the Commissioner is satisfied that there is no real likelihood that VCAT could find the relevant practitioner guilty of professional misconduct or unsatisfactory professional conduct. In such a case s 4.4.13(5) requires him not to take any further action against the practitioner. However, s 4.4.13(1) provides that a decision under s 4.4.13(5) is to be made ‘[a]fter an investigation has been completed’. This means that, if the Commissioner’s construction were correct, he would not have power to summarily dismiss a complaint under s 4.2.10(1) after his investigation had commenced, even if the continued investigation was plainly a waste of time and resources. That cannot have been the intention of the legislature. Such a construction would be contrary to the principles set out at [69] above.
It is not necessary for me to determine the meaning of the word ‘completed’ or whether completion of an investigation of a disciplinary complaint is a condition precedent to dismissal of such a complaint under s 4.4.14(1)(b). It suffices to say that a construction of the LPA which precludes a summary dismissal under s 4.2.10(1)(f) once an investigation has been commenced and confines the dismissal power to s 4.4.14(1)(b) in the manner set out in the Commissioner’s written submissions has little to commend it. As such a construction has the potential to waste resources, delay resolution of complaints and undermine the regulatory scheme without any countervailing public benefit, it would be contrary to the purposes of the LPA set out at [15] above. In accordance with s 35(a) of the Interpretation of Legislation Act 1984, such a construction is to be rejected in favour of the construction that I have adopted, which promotes the purposes of the LPA.
The Commissioner’s reliance on Byrne v Marles[28] and Byrne v Legal Services Commissioner[29] is misplaced. Those cases dealt with procedural issues that arise upon the receipt of a complaint by the Commissioner (including whether it should be classified as a disciplinary complaint) and have no bearing on the questions of statutory construction that are the subject of the present case.
[28](2008) 19 VR 612.
[29][2009] VSC 210.
It is not necessary for me to consider whether s 4.4.7(2)(c) contemplates that the Commissioner may, in his discretion, investigate a disciplinary complaint that he has summarily dismissed under s 4.2.10(1). This is because the Commissioner’s primary position before the Court was that, after 22 August 2013, he investigated a new complaint by Ms Li. Further, the scope of s 4.4.7(2)(c) was raised by the Commissioner in the context of the functus officio principle in Ground 4, which he did not press before this Court.[30]
[30]See [13] above.
It follows that the judge correctly found that s 4.2.10(1)(f) empowered the Commissioner to summarily dismiss Ms Li’s complaint on 6 February 2013 notwithstanding that he had already commenced to investigate it, and that the dismissal was legally effective.
Ground 3: Judge’s finding regarding Commissioner’s view
Parties’ submissions on Ground 3
The Commissioner submitted that the judge erred in finding that he had dismissed Ms Li’s complaint pursuant to s 4.2.10(1)(f). This was said to be because the power to dismiss a complaint under that section required the Commissioner to consider the complaint and to form the view that it ‘requires no further investigation’ and, in the present case, there was no evidence from which the judge could conclude that those requirements had been satisfied. The Commissioner relied on the following evidence in support of his submission:
(a)Ms Li was invited to re-raise her complaint, in the context of having been advised that the investigation could not continue while the County Court proceeding was on foot and that if the proceeding were withdrawn the Commissioner could continue the investigation.
(b)The statement in the internal memorandum endorsed by the Commissioner that: ‘As it would be inappropriate for this investigation to continue whilst the matter is before the court, this matter must now be closed’.
(c)The fact that the correspondence to the respondent advising him of the decision contemplated that the investigation might continue.
(d)The Commissioner did not deal with the investigation pursuant to s 4.4.13 at that time, and no notices were sent as required by s 4.4.14.
(e)When Ms Li resubmitted the complaint after advising that the County Court proceeding was concluded, the Commissioner immediately commenced significant further investigations.
The Commissioner submitted that the above evidence demonstrated that he did not dismiss the complaint on the basis that, after having considered it, he formed the view that it required no further investigation. Rather, so it was said, he dismissed it because he thought that it was inappropriate to proceed further with it while the County Court proceeding was on foot.
The respondent submitted that the judge was correct to find that, by agreeing to the recommendation in the internal memorandum, the Commissioner had lawfully decided to dismiss the complaint pursuant to s 4.2.10(1)(f), and that he did so because he formed the view at that time that the complaint required no further investigation. The internal memorandum was said to constitute direct evidence, expressed in unambiguous terms, that the Commissioner had formed that view, as required by s 4.2.10(1)(f).
The respondent contended that the formation of the view set out in s 4.2.10(1)(f) constituted a precondition to the lawful exercise of the power in that section. As the Commissioner had made a decision under that section and then implemented it by sending the requisite notices, it was said that the judge was entitled to presume that the precondition had been met. This was said to be because no evidence was adduced to rebut that presumption.
According to the respondent, in the absence of any direct evidence to the contrary as to the Commissioner’s view, the judge’s conclusion could not be demonstrated to be inconsistent with incontrovertible facts or uncontested testimony, or glaringly improbable, or contrary to compelling inferences.[31] The respondent submitted that there was nothing in the material before the judge that was inconsistent with the impugned factual conclusion and that rather, the evidence tended strongly in favour of that conclusion.
[31]The respondent relied on the principles described in Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 set out at [96] below.
The respondent also submitted that the Commissioner’s reliance on the matters set out at [85] above was misconceived. According to the respondent, the investigator’s views are not relevant because he was not the delegate of the Commissioner and did not exercise the power to summarily dismiss the complaint under s 4.2.10(1)(f). The respondent also submitted that matters occurring months after the complaint was ‘re-raised’ were irrelevant. According to the respondent, for this Court to overturn the judge’s finding of fact without any evidence as to the decisionmaker’s state of mind to contradict the contents of the internal memorandum would be contrary to the strict tests set out by the High Court for appellate interference with factual findings.
Decision on Ground 3
In my opinion, Ground 3 is not made out.
The best evidence of what the Commissioner decided on 6 February 2013 and the reasons for that decision is the internal memorandum which he approved. The internal memorandum stated that ‘it would be inappropriate for [the] investigation to continue’ and that ‘this matter must now be closed’, and then recommended that the complaint be dismissed pursuant to s 4.2.10(1)(f). The terms of the internal memorandum are capable of only one construction, namely, that Ms Li’s complaint must be dismissed under s 4.2.10(1)(f) because it required no further investigation.
The evidence set out at [85] above upon which the Commissioner relied in support of his submission that he did not form the view that Ms Li’s complaint required no further investigation — and thus that he did not validly dismiss that complaint under s 4.2.10(1)(f) — cannot alter the meaning of the plain words of the internal memorandum. Rather, that evidence provides an explanation of why the view was formed that the complaint required no further investigation, namely, Ms Li’s pursuit of the County Court proceeding. The internal memorandum also provides an explanation of what were thought to be the consequences of a dismissal under s 4.2.10(1)(f), namely, that the Commissioner could resurrect the investigation at the conclusion of that proceeding at the request of Ms Li. The Commissioner’s opinions about the effect of the County Court proceeding on his ability to treat the complaint as extant and his ability to resurrect a dismissed complaint were mistaken. These mistaken opinions, however, cannot change the character of his view that, as at 6 February 2013, the complaint did not require further investigation or of his decision on that day to summarily dismiss the complaint.
The Commissioner’s correspondence with Ms Li and the respondent raised the possibility of a resumption of the investigation of Ms Li’s complaint only if Ms Li requested this. The fact that it was contemplated that the investigation could resume only at the request of Ms Li clearly indicates that the Commissioner had no intention of taking any further action in relation to the complaint of his own accord. Such an intention is consistent with the formation of a view by the Commissioner that, from his perspective, as at 6 February 2013, the complaint required no further investigation.
If the Commissioner had wanted merely to postpone further investigation of Ms Li’s complaint pending the outcome of the County Court proceeding, he could have done so.[32] The fact that he did not adopt this course but, rather, summarily dismissed the complaint under s 4.2.10(1)(f), clearly indicates that this was a course that he deliberately elected to take. Having done so, the legal consequences of a dismissal under that section must follow.
[32]See [26] above.
In Robinson Helicopter Co Inc v McDermott,[33] the High Court summarised the circumstances in which an appellate court may substitute its own findings of fact for those of the trial judge as follows:[34]
A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’[35] of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.[36] But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’,[37] or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.[38]
[33](2016) 331 ALR 550 (‘Robinson Helicopter’).
[34]Robinson Helicopter (2016) 331 ALR 550, 558–9 [43].
[35]Fox v Percy (2003) 214 CLR 118, 126–7 [25].
[36]Devries v Australian National Railways Commission (1993) 177 CLR 472, 479–81; Fox v Percy (2003) 214 CLR 118, 128 [29]; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357, 380–1 [76] (‘Miller’).
[37]Fox v Percy (2003) 214 CLR 118, 128 [28].
[38]Fox v Percy (2003) 214 CLR 118, 128 [29]. See also Miller (2010) 241 CLR 357, 380–1 [76].
The Commissioner has not established that the judge’s factual finding which is sought to be impugned under Ground 3 is contrary to incontrovertible facts or uncontested testimony, glaringly improbable or contrary to compelling inferences. On the contrary, in my opinion, the judge’s factual finding was the only one that was open on the evidence. Accordingly, applying the principles in Robinson Helicopter, there is no basis for this Court to overturn that factual finding.
Ground 5: Whether Ms Li made a new complaint
Parties’ submissions
The Commissioner submitted that the disciplinary complaint he investigated after 22 August 2013, and which was the basis for the VCAT application, was a new complaint made by Ms Li on that day. According to the Commissioner, the new complaint comprised the Li email and the original complaint form. These items, in conjunction, were said to satisfy the formal requirements for a complaint set out in s 4.2.6.
The Commissioner contended that the question for this Court to consider is whether, as a matter of legal characterisation, a valid complaint was made by Ms Li on 22 August 2013. The Commissioner argued that the fact that the complaint was contained in two different documents, namely the complaint form and the Li email, and that one document formed part of a complaint previously dismissed, did not affect the power of the Commissioner to deal with it. He also argued that it does not matter that the complaint form predated the Li email. The Commissioner submitted that as long as the essential elements were satisfied, namely that the complaint was in writing and identified the conduct complained about, he had the power to investigate it.
According to the Commissioner, the LPA is consumer protection legislation and the Court should not allow a formal or technical irregularity to deny a complainant redress, as long as it does not deny the practitioner in question natural justice. The Commissioner emphasised that he, rather than Ms Li, was responsible for any irregularities and that she was entitled to have her complaint addressed. He also contended that the LPA should be construed benevolently and in favour of protecting the consumer.
The Commissioner also noted that the new complaint encompassed some additional matters that had arisen since the original complaint was made, namely, that there had been another invoice issued by the respondent for $25,000.[39]
[39]See [33], [45]–[49] above.
The Commissioner argued that, to the extent that the new complaint related to the same conduct of the respondent that was set out in Ms Li’s original dismissed complaint, he had a discretionary power, implied by s 4.2.10(1)(c), to investigate it. According to the Commissioner, it would have been a miscarriage of his discretion to dismiss the new complaint. This was said to be because of the statements he had made in his letter to Ms Li dated 6 February 2013.
The respondent submitted that Ground 5 raises more than a question of form over substance. According to the respondent, the only powers to investigate conduct of a practitioner are under s 4.4.7 and s 4.4.8, and s 4.2.10(1)(c) does not allow the same complaint to be repeatedly made in circumstances where an outcome has been achieved. The respondent contended that this did not mean that s 4.2.10(1)(c) did not have any work to do because a complaint may still be made about the same conduct by a different complainant, or on the basis of new facts having come to light.
Decision
In my opinion, Ground 5 is not made out.
I reject the Commissioner’s submission that Ms Li made a new complaint on 22 August 2013 which comprised the Li email and the complaint form dated 10 October 2012. The Li email does not expressly say that it is to be treated as a new complaint whether alone or in combination with the complaint form. Moreover, the Li email cannot be read as implicitly containing a new complaint. On the contrary, the phrase ‘I hope that you could proceed with the investigation of my claim against [the respondent] now’ can only be read as a request that the Commissioner resume investigating the complaint which Ms Li previously lodged. It would strain the language of the Li email to construe it as a request for the Commissioner to commence an investigation into a new complaint.
Having regard to the statement in the Commissioner’s letter to Ms Li dated 6 February 2013 that she could ‘re-raise’ her complaint at the conclusion of the County Court proceeding, it is not surprising that the Li email is couched in terms which refer to the existing complaint rather than seeking to make a new complaint. Read in the context of the previous correspondence, it is clear that Ms Li has used the expression ‘claim’ as a reference to her previous complaint.
Up until the trial date, the Commissioner regarded himself as resuming his investigation of Ms Li’s complaint dated 10 October 2012 rather than commencing an investigation of a new complaint. This is borne out by the following:
(a)Mr Trewin’s email dated 23 August 2013 to the respondent stated that Ms Li had ‘re-raised her complaint’.[40]
(b)The Commissioner’s letter dated 7 October 2013 to the respondent stated that Ms Li had requested the Commissioner ‘to continue the investigation of her complaint … that was previously closed on 6 February 2013.’ The letter also stated that the respondent already had ‘a copy of Ms Li’s complaint’.[41]
(c)When the respondent asked the Commissioner for ‘a copy of the complaint made by Ms Li in its entirety’ on 11 October 2013, Mr Trewin sent him Ms Li’s complaint form dated 10 October 2012 but not the Li email. In his subsequent email on the same day, Mr Trewin stated that the complaint form ‘contains the entire complaint as lodged by Ms Li’.[42]
(d)In his letter dated 5 December 2013 to the respondent, the Commissioner stated that the matters being investigated by him ‘flow from Ms Li’s complaint and are a natural progression from that complaint’.[43]
(e)The Commissioner’s VCAT application described the complaint as Ms Li’s original complaint and made no reference to the Li email.[44]
(f)In his written submissions at trial, the Commissioner expressly disavowed the suggestion that he had investigated a new complaint.[45]
[40]See [42] above.
[41]See [43] above.
[42]See [45] above.
[43]See [49] above.
[44]See [51] above.
[45]See [55] above.
At no stage prior to trial did the Commissioner suggest to anyone that he was investigating a new complaint and nor did he act consistently with the existence of a new complaint. It was in the course of oral submissions at trial that he first suggested, somewhat tentatively, that Ms Li’s ‘re-raised’ complaint ‘could be characterised as a new complaint’.[46] This suggestion has all the hallmarks of an afterthought and is not supported by any of the contemporaneous documents.
[46]See [56] above.
The Commissioner’s characterisation of the complaint he was investigating — up until the trial date — as the complaint dated 10 October 2012 was entirely consistent with the statutory scheme in the LPA.
As appears from [18] above, s 4.2.6 states that a complaint must be in writing in the form approved by the Commissioner and must set out a number of items including ‘details of the conduct complained about’. The Li email did not purport to be a written complaint in its own right and could not be considered to be a complaint under s 4.2.6 because it did not comply with the requirements of that section. Among other things, it did not set out any details of the conduct complained about in relation to the respondent. The LPA attaches significant legal consequences to a complaint against a legal practitioner, including establishing the scope of the allegations that the legal practitioner must meet. Accordingly, it is difficult to regard the provisions of s 4.2.6 as mere matters of form, non-compliance with which would not have the effect of preventing something which does not have the statutory characteristics of a complaint — and which does not purport to be a complaint — from being treated as a complaint.[47]
[47]Project Blue Sky (1998) 194 CLR 355, 388–91 [91]–[93].
If the Li email is construed as incorporating by reference Ms Li’s complaint form dated 10 October 2012, as contended by the Commissioner, then the complaint can only be characterised as the complaint dated 10 October 2012. This is because, on their face, those documents exclusively refer to the details in the complaint dated 10 October 2012 which the Commissioner received on 15 October 2012. The documents do not disclose any new complaint.
The Commissioner’s contention that the Li email and her complaint form dated 10 October 2012, in combination, constitute a new complaint is contrary to the manner in which he processed that putative complaint. After the Commissioner received the Li email, he treated the investigation of the respondent as comprising the conduct set out in the complaint form dated 10 October 2012 and further matters that emerged during the course of the previous investigation. This is highly significant. It clearly indicates that the Commissioner regarded himself as resuming his investigation of Ms Li’s complaint dated 10 October 2012 which he had previously summarily dismissed, rather than commencing an investigation of a new complaint. This characterisation of what the Commissioner was investigating accords with the objective course of events. It was a correct characterisation.
The Commissioner did not submit that any significance was to be attached to the fact that, after receiving the Li email, he opened a new complaint file. He was correct not to make that submission. The physical step of opening a new file was administrative in nature and said nothing about the legal characterisation of the complaint the Commissioner was investigating.
I accept that, if the Li email had stated that Ms Li wished to make a new complaint against the respondent in respect of the same conduct that was set out in her complaint form dated 10 October 2012, the Commissioner would have been entitled to treat the new complaint as satisfying the requirements for a complaint set out in s 4.2.6. I also accept that s 4.2.10(1)(c) provides support for the proposition that the Commissioner would have had a discretion to investigate the new complaint notwithstanding that the conduct complained of was the subject of the previous complaint that had been dismissed. It is not necessary to consider the limits for the proper exercise of the discretion in s 4.2.10(1)(c) because, for the reasons already discussed, the Li email did not make any new complaint.
Contrary to the Commissioner’s submission, my conclusion does not involve elevating form over substance. Nor does my conclusion undermine the consumer protection purposes of the LPA. The proper characterisation of the Li email has important legal consequences not only for her and the Commissioner, but also for the respondent. The respondent is entitled to conduct his legal practice free of interference from the Commissioner’s regulatory powers under the LPA unless circumstances exist which engage those powers. Section 4.2.10(1)(c) empowers the Commissioner to investigate a new complaint which relates to the same conduct as was the subject of a complaint that has been summarily dismissed but does not empower him to investigate the dismissed complaint. In these circumstances, it would be highly contrived and contrary to principle to treat the dismissed complaint as a new complaint for the purpose of augmenting the Commissioner’s powers under s 4.2.10(1)(c) beyond those conferred by that provision.
I accept that my conclusion means that the Commissioner is unable to investigate Ms Li’s complaint through no fault of her own. That may be unfair to Ms Li, particularly since the six-year limitation period in s 4.2.7(1) may preclude the Commissioner from investigating any new complaint made by her. However, any unfairness to Ms Li has been brought about by the Commissioner rather than by the respondent. The unfairness to her must be considered in the context of the unfairness that would arise for the respondent if, perhaps in the name of substance over form, this Court were to resort to the fiction that the Li email — with or without the incorporation of the complaint form dated 10 October 2012 — constituted a new complaint.
I also note that the six-year limitation period in s 4.2.7(1) does not apply to an investigation by the Commissioner on his own motion. The parties did not make any submissions on the scope of the Commissioner’s power to conduct an own motion investigation of the respondent’s conduct in the circumstances of this case, which include the summary dismissal of Ms Li’s complaint about that conduct and the repeal of the LPA on 1 July 2015.
Conclusion
As the provisions of the LPA are complex, it cannot be said that the Commissioner’s grounds of appeal had no real prospect of success. Accordingly, I
would grant the application for leave to appeal but dismiss the appeal.
HANSEN JA:
I agree with Kyrou JA.
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