B a solicitor & G a solicitor v Victorian Lawyers RPA Limited & Legal Profession Tribunal [2002] VSCA 204

B a solicitor & G a solicitor v Victorian Lawyers RPA Limited & Legal Profession Tribunal [2002] VSCA 204 - VSCA 2002 case summary — Zoe

[28]

Yet another argument considered was that Mr. Dunn, as delegate of the RPA, had not exercised the powers under s.151(2) delegated to him in accordance with procedures fixed by the RPA. It was contended for B that as a result of the failure by the delegate to comply with those procedures Mr. Dunn could not properly have been satisfied that there was a reasonable likelihood that the Tribunal would find the practitioner, B, guilty of misconduct and so could not properly bring the charge against B in the Tribunal. The Tribunal in substance held that the specific delegation to Mr. Dunn in relation to B and G meant that he was not subject to other procedures laid down or arguably laid down by the Council of the RPA for investigations generally under s.151, so that, for instance, the requirement of the approval of three members of the Council to bring a charge which was likely to be heard by the Full Tribunal did not apply to the exercise by Mr. Dunn of the powers conferred by s.151 delegated to him in respect of B and G. In any event, in the Tribunal's view, any failure to follow the procedures laid down by earlier resolutions, even if applying to Mr. Dunn, would not invalidate his acts as delegate as the procedure was not a statutory one. The Tribunal was of the view that the charges against B and G had been brought in the Tribunal by the RPA acting through its duly appointed delegate, Mr. Dunn, in accordance with the new Act. The Tribunal also rejected a submission that at the time of the alleged delegation to Mr. Dunn the RPA did not have any power to act under s.151(2) because an investigation by Mr. Coleman as delegate of the RPA in relation to s.146(2) was continuing in August and September 2000. The power delegated was, the Tribunal held, simply one which could not be exercised until the investigation was completed. The Tribunal also rejected a submission that the delegation to Mr. Coleman of its general power under s.146 made by the RPA on 18 May 2000 was invalid in that it lacked statutory authority. The submission had been that s.146(2) related to a discrete and specific function of the RPA and did not come within the rubric of a general power.

[38]

"4.2.2 PROFESSIONAL STANDARDS 1. Topic Delegations 2. Summary of the proposal/relevant issues At the first Council meeting following the election of new Council members, Council approve delegations for the next Council year. Over various meetings during the course of 1998 and 1999 Council approved certain delegations to members of staff of Victorian Lawyers RPA Ltd and to the RPA Trust Moneys Committee. The RPA has the power to delegate pursuant to Section 313 of the Legal Practice Act 1996 (as amended on 15 December 1998 to include Parts 2A, 2B and 6) and clause 86 of the Articles of Association of Victorian Lawyers RPA Ltd. Section 313 of the Act permits the RPA to delegate to an officer, an employee or the members of a committee of the RPA any of its powers or functions under - a) Division 4 of Part 2 (practising certificates); b) Part 2A (interstate practice); c) Part 2B (practice of foreign law); d) Part 5 (disputes and discipline); e) Part 6 (client's money and trust accounts); f) Part 9 (receivers and managers) Clause 86 of the Articles of Association of Victorian Lawyers RPA Ltd permits the Council to delegate any of its powers to - a) Standing committees b) Other ad hoc committees. 3. Existing/previous legislation and existing Institute and/or government policy These delegations be made upon the election of new Council members and the installation of a new president. 4. Short statement of policy issues for entry in the LIV policy register Delegation of powers under the Legal Practice Act 1996 and the Articles of Association of Victorian Lawyers RPA Ltd. 5. Recommendation/s 1. That all previous delegations made pursuant to the Legal Practice Act 1996 and the Articles of Association of Victorian Lawyers RPA Ltd be revoked. 2. (a) Pursuant to Section 313 of the Legal Practice Act 1996 and clause 86 of the Articles of Association of Victorian Lawyers RPA Ltd the powers set out in Attachment A hereto are delegated to the persons or committees listed therein. (b) Where Laurence William Neville is delegated together with Kevin Joseph Power alone, each can exercise those delegated powers jointly or individually, provided that Laurence William Neville may only exercise those powers individually if Kevin Joseph Power is unable to do so. (c) In relation to [G] and [B] only the Council delegate to Ian Maxwell Dunn alone its powers pursuant to section 151 of the Legal Practice Act 1996. APPROVED"

[59]

None of the parties was able to direct the Court's attention to any other authority bearing directly on the issue of what would be a sufficient delegation under s.313. Our own research has thrown up a number of cases arguably relevant to the issue, but upon close examination of them we gained little assistance, each case depending very much upon its own particular circumstances. For example, in Morton v. French[23] a provision of the Friendly Societies Act 1896 permitted a member of a registered society "by writing under his hand" to nominate a person to whom any sum of money payable by the society on the death of that member should be paid at his death. It was held that a nomination authenticated by the member's mark only, she being unable to write, and by the signatures of two witnesses was not a writing under her hand within the meaning of this enactment. The Lord Justice-Clerk said that the document was not legally signed and that "Our law has always been very strict in that matter, and it does not depend on custom, but on distinct statutory enactment."[24] In Wouters v. Deputy Commissioner of Taxation[25], the three appellants objected to the validity of notices to attend for examination issued pursuant to s.264 of the Income Tax Assessment Act, by one Osborne as acting Deputy Commissioner of Taxation, Sydney. At the relevant time there was a delegation by the Commissioner of Taxation "to the person for the time being occupying, or performing the duties of, the office of Deputy Commissioner of Taxation, Sydney" of certain specified functions including those under s.264 of the Act. The Deputy Commissioner had, by memorandum, recommended to the Commissioner the temporary transfer of Mr Osborne to the position of Deputy Commissioner. The memorandum had been endorsed "approved" by the Commissioner who dated and initialled it. The argument as to invalidity rested on reg.108(1) of the Public Service Regulations 1935 (Cth), which provided that the secretary of a department "may give a direction in writing to an officer" to perform the duties of a senior executive service officer in the department. It was argued that there had been a mere authorisation by the Commissioner, exercising the powers of the secretary, which was not capable of being regarded as a direction. Bowen, C.J, Wilcox and Lee, JJ. rejected the argument saying[26] that

[90]

"[G]: There is one other matter that I feel constrained to mentioned [sic] to the Tribunal. Chairman: Yes. [G]: Ah that Sir relates to some comments which have been ... which have been made to me ...Er ... um. I think on two occasions the Tribunal has alleged that I'm obsessive and I've been accused of making speeches and I've also been accused of delay and cost. Increasing the costs of this matter. Chairman: Are you suggesting that I have made accusations directed to you of delay and increase in costs .... (Indecipherable comment by others) [G]: I'm only making a comment. Chairman: You have to be accurate Mr [G]. [G]: Clearly you can check the transcript, and I'll be seeking a copy of the tape of these proceedings. Ah...also Chairman: I have certainly referred to being concerned about the costs of this matter. I'm not sure how many days we have been here so far still dealing with the preliminary question. I think that's beyond dispute Mr [G] that that would be a matter of concern. [G]: I think we are all concerned about the costs... It's a matter ..... Chairman: If you want to quibble about that before the Court of Appeal try it. [G]: I didn't mention the Court of Appeal. Chairman: I know you didn't. I'm inviting you to do so. [G]: Well we'll have to see if your invitation will be taken up when we see your written reasons. Chairman: I've given my written reasons. If you are referring to today. [G]: It's .... Chairman: They are the written reasons. I'm not going to go away and produce some magnum opus. You have the reasons and they will be typed and provided to you. [G]: Thank you for providing them. [G]: The other matter is that you made some comment about your knowledge of Mr Dunn. Chairman: Yes.. [G]: I don't know why that comment was made. Chairman: Because I felt it appropriate that I disclose to you and all concerned in this matter that Mr Dunn is known to me. He's here today apparently subpoenaed by you. You are making submissions concerning what ought to be done. It seemed to me that it was appropriate for me to disclose that I know him. Through professional contact. [G]: Yes. Chairman: I've been around a few years. I suspect Mr Dunn has been around a similar number of years. Probably a few years less than me. [G]: Probably a few years less Sir. That's right...Ah. So the purpose was to indicate your knowledge of Mr Dunn... was to indicate to me that you had some..... Chairman: Over many years I've known him professionally. Not socially....Just professionally. If I see him in the street I say `Hello'. Whatever it might be. We have had contact on a professional level in a number of ways over many years. [G]: I was surprised that you made that comment. Chairman: You maybe well aware, Mr [G], from your vast experience of these matters that any judicial officer should disclose a possible conflict situation ....and to make it plain to all concerned if there is any personal knowledge of somebody who is attending before the judicial officer. You ought to be aware of that. [G]: I am aware. Yes. Well aware. Chairman: Why are you querying the disclosure then? [G]: Well ... I was querying it because... Er.... I probably know Mr Dunn as much as you do. Chairman: Well what's the point you are making. [G]: Well, I'm querying the reason for your disclosure. Now you have indicated it to me... and ... that's the point. I mean the situation is the same. Years ago I briefed you. [G]: That's the point. I briefed you years ago. Chairman: I think I remember it. [G]: Years ago I briefed you. That goes on in this honourable profession all the time. If that was the sole purpose of ...I er ...I can follow what you are saying. You didn't want me at a later stage to raise the issue of your knowledge of Mr Dunn. Chairman: You said that. Not me. [G]: I have said it. That's all."

At a glance

Court

Decision date

Before

Source

Judgment (122 paragraphs)

Parties

Legislation Cited (4)