His Honour Judge Bowman, Members E Hannebery and L Cooney

(1) The appeal of the Respondent pursuant to the Legal Practice Act 1996 is not incompetent, and the Tribunal has jurisdiction to hear it.

(2) Question of any ancillary orders reserved.

(3) Liberty to apply.

For the Applicant: Mr. E.W. Coady, Solicitor, Coadys, Barristers & Solicitors.

For the Respondent: Mr P. Bick QC, with Mr J. Manetta of Counsel, instructed by Deacons.

1 This matter comes before us in the context of an appeal by the legal practitioner, Darren D Moses ("Moses") in relation to a costs order made by Senior Member Howell on 31st May 2006. Because jurisdiction is at the heart of this dispute, including the question of the capacity in which Senior Member Howell made his decision and the procedural and substantive law to which he was then adhering, the description of him as being "Senior Member" Howell is not intended to be in any way indicative of the way in which the Tribunal views the competing arguments. It is simply his present title.

2 The challenge to the Tribunal's jurisdiction to hear and determine Moses' appeal is made by Francesco and Filippa Alessi, whom I shall describe collectively as "Alessi". The challenge to jurisdiction involves the Legal Practice Act 1996 ("the 1996 Act"), the Legal Profession Act 2004 ("the 2004 Act"), and the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act").

3 This matter has a long and tortuous, if not tortured, history. The merits of this long-running dispute need not concern us. Suffice to say that on 16th May 2005, Senior Member Howell (then Registrar Howell) ordered that the costs agreement entered into between Alessi and Moses be cancelled, and effectively preserved to the parties the right to apply in relation to costs. The order cancelling the costs agreement was the subject of an appeal by Moses, this appeal being instituted on 8th June 2005. Obviously this was well before 12th December 2005, the date on which the 1996 Act was repealed and the 2004 Act commenced operation. That appeal was ultimately struck out by consent on 9th June 2006.

4 In the meantime, the parties returned to Senior Member Howell so as to argue the question of costs, this right having been reserved as set out above ("the costs application"). Section 103(4) of the 1996 Act gave to the Legal Profession Tribunal the power to order costs in relation to a hearing concerning the cancellation of a costs agreement, and that sub-section specifically incorporates the operation of s.162. Accordingly, pursuant to s.162(2), costs were at the discretion of the Legal Profession Tribunal.

5 On 13th July 2005, Senior Member Howell fixed a timetable for submissions and the like in relation to a number of questions set out in the orders made that day. The costs application commenced before him on 24th October 2005. It was not completed on that day. It continued before him on 17th February 2006, and 21st and 22nd March 2006. Thus, as at 12th December 2005, the costs application was part-heard. I might add that we are using the word "application" as a neutral term to describe what was conducted before Senior Member Howell, as the meaning of the word "matter" in Clauses 8.3 and 8.4 of Schedule 2 of the 2004 Act is a key and controversial issue. Sub-clause (2) is identical in each of these Clauses, and it might be convenient if we now set it out in full:-

"VCAT is to hear and determine the matter on or after the commencement day as if -

(a) the matter were a proceeding commenced in VCAT;

(b) the old Act continued to apply in respect of the matter (both substantively and procedurally)."

6 On 31st May 2006, Senior Member Howell handed down his ruling in relation to the costs application and made orders. On 26th June 2006, Moses filed with VCAT a document headed "NOTICE OF APPEAL TO FULL TRIBUNAL (section 104 Legal Practice Act 1996)". As a preliminary issue, it is alleged by Alessi that the proceeding commenced by this document is incompetent and we have no jurisdiction to entertain it.

7 Mr Coady appeared as solicitor for Alessi. Mr Bick QC, with Mr Manetta of counsel, appeared on behalf of Moses. Analytical and helpful submissions were made on behalf of each party, and various documents relating to the history of the litigation were placed before us. No oral evidence was called.

8 Before turning to our ruling, we shall briefly summarise the submissions advanced on behalf of the parties in the order in which they were presented.

9 The submissions made by Mr Coady on behalf of Alessi could be summarised as follows.

10 On 12th December 2005, the 1996 Act was repealed. Clause 8.1 of Schedule 2 of the 2004 Act abolished the Legal Profession Tribunal and, pursuant to the next Clause, the relevant members became members of VCAT. Transitional provisions are to be found in Clauses 8.3 and 8.4 of Schedule 2 of the 2004 Act. Those Clauses provide that matters described as pending or part-heard are to be heard and determined by VCAT as if the matter were a proceeding commenced in VCAT, and the 1996 Act continued to apply in respect of the matter both substantively and procedurally. The distinction between pending matters and part-heard matters seems to hinge upon whether or not, before 12th December 2005, the Legal Profession Tribunal had heard any evidence on a material question fact. In the present litigation, as at 12th December 2005, there existed one pending matter, namely the appeal in relation to the cancellation of the costs agreement, and one part-heard matter, namely the costs application.

11 The pending matter was ultimately concluded by reason of the consent orders of 9th June 2006. The part-heard matter was concluded by way of Senior Member Howell's orders of 31st May 2006. As at 12th December 2005, there was no appeal pending in relation to costs, and nor could there be as the hearing of the costs application was not at an end. Once Senior Member Howell gave his decision on 31st May 2006, the part-heard costs application was at an end. Thus, as at that day, and as far as the costs application was concerned, there remained no matter "saved" by the transitional provisions. Section 104 of the 1996 Act had been repealed. It is as if it had never been in existence. Unlike the situation of the appeal concerning the cancellation of the costs agreement, no appeal pursuant to s.104 was on foot as at 12th December 2005 and accordingly "saved" by the transitional provisions. Given that s.104 has been repealed, no appeal pursuant to it can now be initiated, either in the present case or in any matter where orders are made after 12th December 2005.

12 Senior Member Howell is now a member of VCAT. Save for pending and part-heard matters within the meaning of Clauses 8.3 and 8.4 of the Second Schedule of the 2004 Act, an appeal against any order made by him can be brought only pursuant to s.148 of the VCAT Act, which gives the right to appeal to the Supreme Court of Victoria on a question of law.

13 The costs appeal is not a pending or part-heard matter. It is a completed matter. The term "matter", as used in Clauses 8.3 and 8.4 of the Second Schedule of the 2004 Act is not defined. In the Magistrates' Court Act 1989, "proceeding" is defined as being "any matter in the court". The word "matter" and the term "pending matter" clearly refer to that part of a proceeding scheduled for determination to resolve the dispute between the parties. That has been done by reason of the orders of Senior Member Howell, and no part of any pending or part-heard matter remains.

14 Accordingly, there is no jurisdiction to entertain the purported appeal.

15 The submissions advanced by Mr Bick on behalf of Moses could be summarised as follows.

16 Pursuant to s.104 of the 1996 Act, what can be appealed is an order. There can be many orders within the one proceeding, each of which can be the subject of an appeal, an example of this being appeals in relation to interlocutory matters. On 16th May 2005, Senior Member Howell (Mr Bick referred to him as Registrar Howell), as he then was, made final orders in the substantive matter. Moses had 21 days in which to appeal, which he did. Senior Member Howell deferred the issue of costs in that proceeding, and the hearing of this. That hearing commenced on 24th October 2005. Under the transitional provisions, Senior Member Howell was in the position of a duly constituted tribunal which had begun to hear the matter on 24th October 2005. Whilst Senior Member Howell was a member of VCAT when he ultimately made the orders of 31st May 2006, he was acting as the Legal Profession Tribunal under the transitional provisions and was bound to follow the 1996 Act both substantively and procedurally. The orders which he made were orders made under the 1996 Act and in respect of which s.104 provides that an appeal must be instituted within 21 days.

17 An appeal in respect of a proceeding under the 1996 Act is an appeal under that Act. The 1996 Act continues to govern the proceeding until it is finally resolved. The final resolution of the proceeding will be at the conclusion of any appeal.

18 If there is any difficulty concerning this, VCAT has the power pursuant to Clause 8.5 of the Second Schedule of the 2004 Act to make any orders it considers appropriate to resolve the difficulty. However, in the present case there is no difficulty, so this should not be necessary. Until the matter is finally heard and determined, the 1996 Act governs it substantively and procedurally. The point of the transitional provisions is that matters pursuant to the 1996 Act continue to be governed by that Act until their final conclusion. Were that not so, and were the submissions on behalf of Alessi correct, an appeal would have to be brought pursuant to the 2004 Act and in accordance with VCAT procedures. The provisions in relation to costs agreements in the 2004 Act are quite different from those in the 1996 Act. This again illustrates that it was the intention of the legislature that all 1996 Act matters be governed by that Act until they are finally heard and determined. Another example of this is that, if the principal proceedings had not been determined by consent in the manner in which they were, and had proceeded before the Full Tribunal to a determination, any appeal in relation to that determination would have been brought pursuant to s.105 of the 1996 Act. The 1996 Act would have applied right through until the final hearing and determination of the matter.

19 Mr Coady's reply on behalf of Alessi could be summarised as follows.

20 It is clear from Clauses 8.3(2) and 8.4(2) of Schedule Two of the 2004 Act that, when handing down his orders on 31st May 2006, Senior Member Howell was sitting as VCAT and not as the Legal Profession Tribunal. The concept of "matter" clearly involves the type of proceeding that was being heard, and once that was heard and determined, the matter goes out of existence. To identify whether matters were part-heard or pending, it is necessary to look at their status as at 12th December 2005. Clause 8.5 should not be invoked because the law to be applied is clear. The transitional provisions identify the law which is to be applied to pending and part-heard matters. The argument concerning alleged differences in relation to costs agreements between the 1996 Act and the 2004 Act is not a valid one. VCAT now possesses the original jurisdiction in relation to costs agreements, and the appeal procedures are the VCAT procedures. This was what was intended by Parliament. Assistance is also gained in this regard by consideration of the transitional provisions previously used as in the Licensing and Tribunal (Amendment) Act 1998.

21 The basic question to be determined by us could be expressed in various ways. Did the orders made by Senior Member Howell on 31st May 2006 mean that the costs application was at an end? When making the orders, was Senior Member Howell sitting purely as a VCAT member, or was he effectively sitting as the Legal Profession Tribunal? In relation to the purported appeal before us, are the relevant and governing procedures those pursuant to the VCAT Act or those pursuant to the 1996 Act? These are just a few of the various alternatives that are available.

22 However, it seems to us that the key issue involves a consideration of what is meant by the word "matter" in Clauses 8.3 and 8.4 of Schedule 2 of the 2004 Act. Is the purported appeal, arising as it does from orders made after 12th December 2005, a new "matter", or part of a pending or part-heard matter? We might add that, for the purposes of this ruling, there seems to us to be no significant difference in outcome whether, as at 12th December 2005, the costs application is treated as a pending matter or a part-heard matter. In each instance, the wording of sub-clause (2) remains the same, and it matters not whether or not evidence on a material question of fact had actually been heard.

23 If what is before us is a new "matter" - in the sense of not being a pending or part-heard matter - the submissions of Mr Coady gain considerable strength. Whilst that may not necessarily be determinative of the jurisdictional question, it would be close to being so and Alessi's position would be much stronger. If the proposed appeal is not a new "matter", but is a pending or part-heard matter, the transitional provisions would apply and Moses' position would then be virtually indisputable. Thus, the meaning of the word "matter" as used in the Clauses is of great importance.

24 In the Clauses under consideration, it is the word "matter" that the legislature has opted to use. In each instance, in sub-clause (2)(a) it has also used the word "proceeding", but it is part-heard and pending matters, as opposed to part-heard and pending proceedings, that are "saved" by the transitional provisions. We can only assume that this was a deliberate choice on the part of the legislature.

25 "Matter", is a broader term than "proceeding". The submission advanced by Mr Coady would have us accept that "matter" is a comparatively narrow term, and that, for example, a pending matter is a reference to that part of a proceeding scheduled for determination to resolve the dispute between the parties. Thus, any appeal would be a new matter. We do not accept that the word should be so narrowly defined. Apart from the fact that, potentially, the logical extension of this argument is that each step along the litigation pathway which follows a previous ruling could be described as a new matter, the authorities would not seem to support such a narrow interpretation.

26 In In re The Judiciary Act 1903-1920 and In r_e The Navigation Act 1912-1920_ [1921] HCA 20; (1921) 29 CLR 257, the High Court of Australia gave what was in essence an advisory opinion in relation to the meaning of the word "matter" as used in s.76 of the Constitution. It said as follows:-

"It was suggested in argument that "matter" meant no more than legal proceeding ... We do not accept this contention; we do not think that the word "matter" in sec. 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding".

27 Given that the advisory opinion being so given related to the Judiciary Act, this definition of the word seems to us to be particularly relevant. In Fencott v Muller 46 ALR 41, the High Court again favoured the approach that a "matter" is a justiciable controversy and basically encompasses all claims made within the scope of the controversy. It adopted the approach of Mason J in Phillip Morris Incorporated v Adam P Brown Male Fashions Pty Ltd (1981) 33 ALR 465, who referred to the fact that the word should be given a broad rather than a narrow meaning.

28 In In re Judiciary and Navigation Acts, the High Court also stated that a matter involved an immediate right, duty or liability to be established by the determination of the Court. This phrase was again referred to in Abebe v Commonwealth of Australia [1999] HCA 14, where it was said that the determination of rights, duties, liabilities and obligations in a legal proceeding is central to the notion of a "matter". It was also pointed out in that decision that Griffiths CJ stated in South Australia v Victoria [1911] HCA 17; (1911) 12 CLR 667 that the word "matters" was in common use as "the widest term to denote controversies which might come before a Court of Justice".

29 As stated, the legislature has opted to use the word "matter" in the transitional provisions. We are of the opinion that the word, as there used, is of at least sufficient breadth to encompass an appeal arising from the same legal controversy. We do not believe that, as a matter of general principle, or more particularly in the context of the transitional provisions with which we are dealing, the institution of an appeal represents the commencement of a new matter. To employ the terminology used in In re Judiciary and Navigation Acts, what is involved is still the same subject matter for determination in a legal proceeding.

30 Indeed, it is at least strongly arguable that, even if the legislature had chosen to use the word "proceeding" rather than "matter", an appeal pursuant to the process set out in the 1996 Act and relevant to the transitional provisions is not a different proceeding from the original one which has provoked the appeal. It seems to us that, when what is involved is what could be described as an internal appeal, the same proceeding continues. By analogy, an appeal from the decision of a Master of the Supreme Court to a Judge sitting in the Practice Court is not a new proceeding, but is part of the ongoing proceeding. We also note that the procedure adopted by the Legal Profession Tribunal when dealing with an appeal pursuant to the 1996 Act was not to allocate a new or different file number to such appeal. One need only look at the documentation in relation to the principal appeal in this matter in order to confirm this. Whilst this may not be conclusive, it is again indicative of the fact that, at least through to the conclusion of any internal appeal to the Full Tribunal, only the one proceeding was involved. Whilst we do not have to go that far, as it is the term "matter" rather than "proceeding" which is employed, nevertheless we would be of the view that the institution of an appeal pursuant to the 1996 Act did not involve the commencement of a new proceeding. A fortiori, the commencement of a new matter is not involved.

31 On 12th December 2005, there was before the Legal Professional Tribunal a pending or part-heard matter. We agree with Mr Bick that the 1996 Act governed that matter, both substantively and procedurally. We are not of the view that the matter concluded with the orders of Senior Member Howell on 31st May 2006. The matter commenced pursuant to the 1996 Act, and, in accordance with the transitional provisions, orders were made pursuant to that Act. The matter was not at an end. There was still potentially at least one more determination which could be made in relation to the subject matter the subject of the legal controversy. That determination was one by way of appeal to the Full Tribunal in accordance with s.104 of the 1996 Act. Alessi chose to pursue that option. The pending or part-heard matter therefore remained alive. The 1996 Act continued to govern it procedurally and substantively.

32 That being the case, we have jurisdiction to deal with the appeal, and it is properly before us. There is then no need to turn to Clause 8.5 of Schedule 2 of the 2004 Act, and in any event we would have approached the use of that Clause with considerable trepidation, bearing in mind that it is an issue of jurisdiction which we are determining.

33 We are also of the view that the conclusion which we have reached is one consistent with common sense and in accordance with the intention of the legislature. We believe that the apparent intention of the transitional provisions was that matters governed by the operation of the 1996 Act should continue to be so governed, at least until such time as there was what could be described as an "external appeal" - that is, one to a Court (the Court of Appeal) operating independently of and outside of the internal framework set up by the 1996 Act. We also agree that, however Senior Member Howell be described, the orders which he made on 31st May 2006 were orders made by him in accordance with the 1996 Act, which continued to apply substantively and procedurally.

34 We do not accept that the appeal is incompetent. We are satisfied that we have jurisdiction to hear it.