Legal Profession Act 2004, ss 4.2.11, 4.2.10.

Administrative Law Act 1978, s 8.

1 This matter has a long history. To understand the issues which now arise, it is necessary to set out much of that history.

2 On 27 June 2006 complaint was made to 'Professional Standards, Law Institute of Victoria' ('the Institute') by solicitors acting for Peter Smirnios against the appellant, Stephen Byrne (conveniently, 'the appellant'), a solicitor in sole practice. The circumstances leading up to the complaint being made, and what then followed, were described this way by Nettle JA in an earlier proceeding between the parties:[1]

1. ... the appellant is a barrister and solicitor of the Supreme Court of Victoria who carries on practice as a sole practitioner in Melbourne. For some time in April 2006, he acted for a Mr Peter Smirnios in Supreme Court proceedings. But in May 2006 Mr Smirnios consulted Wisewoulds, solicitors, and thereafter that firm took over the conduct of the matter.
2. In the following months, a deal of correspondence passed between the appellant and Mr Paul Marsh, who was the partner of Wisewoulds acting for Mr Smirnios. It began on or about 7 June 2006 with a telephone request by Mr Marsh that the appellant hand over his file in the matter. The appellant refused to do so, claiming a lien over the file for his costs, and he also refused a further request made by Mr Marsh to supply Mr Marsh with a copy of the fee agreement. The conversation terminated when Mr Marsh threatened that he would complain to the Institute unless the appellant provided a copy of the fee agreement.
3. On 13 June 2006, Mr Marsh wrote to the appellant confirming his request for a copy of the fee agreement. He concluded the letter with reference to the appellant's claim to a lien over the file and asked that the appellant set out the basis on which the lien was claimed.
4. The appellant responded by fax later in the day requesting a copy of the notice of change of practitioner and of the complaint which Mr Marsh had said that he would make to the Institute if a copy of the fee agreement were not provided. The appellant also explained that he was claiming a lien over the entire file until his fees were paid and he added that he would forward the file if Mr Smirnios paid his fees or if Wisewoulds undertook to pay them on receipt of the file.
5. On 19 June 2006, Mr Marsh wrote again to the appellant. He enclosed a copy of a notice of appearance he had filed on behalf of Mr Smirnios and he reiterated his request for a copy of the fee agreement. He also asked for an explanation of any fees which were claimed to be outstanding; a trust statement showing all moneys paid by Mr Smirnios; and an explanation of the legal basis upon which the appellant was claiming a lien over the file. The letter concluded with this:

We request a response by 4.00 pm Thursday 22 June 2006.

Failing a response, we will regretfully bring this matter to the Law Institute's attention.

1. The appellant faxed back on 20 June 2006 that Mr Smirnios already had a copy of the fee agreement and that the lien was claimed under the Professional Conduct and Practice Rules and at common law, and he made reference to a number of authorities in support of that contention. He added that he did not maintain a trust account and held no funds of Mr Smirnios in trust and that his file was with a costs consultant to prepare a bill which had been promised by the end of the week. He also asked once more for a copy of the complaint which Mr Marsh had said that he would make to the Institute if a copy of the fee agreement were not provided:

... so that we might deal with this before you involve the Law Institute. We don't want you to make a complaint against us and if you tell us of the basis you have for complaining and if you give us the particulars of your complaint, we might sort this out without your making any complaint.

So, if you get us a copy of the complaint you propose making, we can perhaps clear this up to everyone's advantage, which is all we want to do.

1. Mr Marsh emailed a reply later that day in which he acknowledged receipt of the appellant's fax and stated that he would respond to it in due course. He added that he had consulted Mr Smirnios, who said that he did not any longer have a copy of the fee agreement, although Mr Marsh added that that was not to say that Mr Smirnios had not had a copy of the agreement at some point, and he asked again to be provided with a copy of the agreement.
2. On 23 June 2006 the appellant wrote to Mr Marsh that 'We're yet to receive a response to our most recent letter [presumably, the fax of 20 June 2006] and as yet still only have your threat of an unsubstantiated complaint to the Institute to answer. Accordingly, we enclose herewith, bill of costs in taxable form.' The letter made no reference to the fee agreement.
3. In a second letter sent that day the appellant gave notice pursuant to Division 6 of Part 3.4 of the Act of intention to sue to recover the costs which were said to be due. Again, however, there was no reference to the fee agreement although it is not clear whether the appellant had by that stage seen Mr Marsh's email of 20 June 2006.
4. Then, on 26 June 2006, the appellant wrote once more to Mr Marsh concerning the possibility of Mr Marsh making a complaint to the Institute:

We refer to the above and request you kindly forward us a copy of your complaint for the Institute [sic], identifying the breaches of professional standards which you say we've made and which you say warrant the attention of the [I]nstitute and also giving particulars of our conduct said to make out those breaches.

We ask that of you knowing you must have a complaint prepared or else you could not have given us such a limited time to respond to your demands of us when you first threatened us with making a complaint against us.

We haven't imposed any idle time constraints on you as there is no urgency to our request, but we don't see what urgency there was to your request of us in the first place (nor have you since identified any urgency despite our requesting that of you), and because we hope you'd understand it is only fair that a complaint against us about any aspect of our professional conduct deserves the promptest attention.

Kindly return complaint. Thank you.

Once more, there was no reference to the fee agreement.

1. The next day, 27 June 2006, the appellant wrote again to Mr Marsh about the possibility of complaint to the Institute:

We refer to the above and note we've not heard from since you [sic] wrote to us late on 20 June about a complaint you proposed making 22 June if you didn't hear from us. We replied as far as we could, acquainting you with northing [sic] which would not already have been apparent to you, yet we've still had no further correspondence from you with a complaint.

Please don't misunderstand us, there is nothing wrong with your threat, it is just your inability to follow up which bother us [sic], because hollow threats come at a price. We neglected other work we had to reply to you in the apparently idle time-frame you set, but it appears we've only given in to a bully; you had no complaint to make and the deadline you set amounted to nothing. Kindly return complaint. Thank you.

Presumably, the reference to 'late on 20 June 2006' was a reference to the time at which the appellant received Mr Marsh's letter of 19 June 2006. Once again there was no mention of the fee agreement.

1. Later on 27 June 2006, the appellant sent another letter to Mr Marsh concerning the complaint, as follows:

We refer to the above and to recent correspondence and insist you forward a copy of your complaint to our office. There is no reason why we should have to wait any longer before we move passed you [sic] intimidation of us.

Again, however, the appellant did not refer to the fee agreement.

1. Finally, later still that day, Mr Marsh replied with a long letter in which he rehearsed some of the previous correspondence and again requested a copy of the fee agreement, and added that:

As you seem hell bent on having a complaint made against you, we have made one. Enclosed is a letter we have sent to Professional Standards division of the Law Institute of Victoria in relation to your conduct in not providing our client with a copy of the fee agreement despite repeated requests.

Furthermore, we are currently obtaining instructions from Mr Smirnios as to whether he wishes to lodge a complaint with the Legal Service Commissioner on the basis that you are threatening to sue him without providing him with a copy of the fee agreement on which you rely. We have forwarded Mr Smirnios your letter and Bill of Costs.

As stated in a letter to you on 19 June 2006, it was never our intention to engage in counter-productive activities. This is still not our intention. We simply seek a copy of the Agreement in order to properly advise our client.

1. Mr Marsh's complaint of 27 June 2006 to 'Professional Standards, Law Institute of Victoria' was headed 'Complaint against Stephen Peter Byrne' and alleged among other things that the appellant's conduct 'has been unprofessional and obstructive, especially considering his knowledge of the client's poor grasp of English. There has been one verbal request and four written requests for the fee agreement, all of which have failed to produce the document, or a reasonable response'.
2. On 28 June 2006, the appellant faxed to Mr Marsh seeking advice as to whether 'you will prosecute the complaint you propose making against us; and/or whether ... you know someone who proposes paying Mr Smirnios' debt to us.' But again there was no reference to the fee agreement or provision of a copy of it and the appellant concluded with a warning that, if Mr Marsh did not respond by the end of the day, the appellant would take up the matter directly with Mr Smirnios.[2]
3. On 7 July 2006 the Institute forwarded the complaint to the commissioner pursuant to a standing arrangement that complaints made to the Institute be referred to her.
4. On 10 July 2006 the commissioner returned the complaint to the Institute pursuant to s 4.4.9 of the Act under cover of a letter in which she set out directions for the conduct by the Institute of an investigation into the complaint pursuant to Division 3 of Part 4.4 of the Act.
5. On the same day the commissioner wrote to the appellant, omitting formal parts, as follows:

Dear Mr Byrne

COMPLAINT BY WISEWOULDS OBO MR PETER SMIRNIOS

Pursuant to section 4.2.8 of the Legal Profession Act 2004 ('the Act') I am writing to notify you that I have received a complaint from Wisewoulds on behalf of Mr Peter Smirnios made against you which involves disciplinary issues. As I am required to give you details of this complaint, I enclose a copy (without attachments) for your information.

Pursuant to section 4.4.9 of the Act I have referred the disciplinary complaint raised by this matter to the Law Institute of Victoria Ltd being a prescribed investigatory body for the purposes of the Act. That body is required to investigate the complaint and report to me on its progress. At the completion of the investigation I will make a determination in respect of the disciplinary complaint in accordance with the Act.

The Law Institute will contact you shortly.

...

The letter was signed:

VICTORIA MARLES

Legal Services Commissioner

Per: Janet Cohen

3 By originating motion, the appellant sought relief in the nature of certiorari, prohibition, mandamus and declarations of right.[3] He raised four issues. Only one of them is of any present relevance: that the Commissioner erred in determining that the letter of complaint was capable of constituting a disciplinary complaint.

4 Kaye J found against the appellant on all four issues.

5 Mr Byrne appealed. He unsuccessfully re-agitated all of the issues which he had raised at trial. But he successfully argued that the Commissioner had been obliged to give him a hearing before determining to classify the complaint as a disciplinary complaint and to refer it to the Institute for investigation.

6 Before tracing the further history of the matter, it is convenient to notice a number of aspects of the reasons of Nettle JA (with which Dodds-Streeton JA and Coghlan AJA agreed).

7 First, his Honour construed the effect of the legislation by which the Commissioner was required to assess the nature of a complaint this way:

... The commissioner's assessment of a complaint as a disciplinary complaint is necessarily subjective. The scheme of Part 4 of the Act is to require the commissioner to undertake the task at the outset, virtually as soon as a complaint is received. At that stage, there may not be much more on which to base an assessment than a limited recitation of alleged facts and circumstances. Additionally, opinions can and do differ as to what amounts to unprofessional conduct or misconduct, particularly at the periphery, and the commissioner will not always have access to expert opinion let alone a range of expert opinion to which to turn. Further, given the range of functions accorded to the commissioner by Part 6.3 of the Act, and the staffing structures envisaged by Part 6.4 of the Act (including the provisions of Part 3 of the Public Administration Act 2004), it is apparent that the commissioner is intended to rely upon assessments prepared by her officers on a routine basis. In those circumstances, Parliament surely cannot have expected much more by way of the initial assessment of a complaint than an educated prediction as to whether the conduct the subject of complaint, if proved, may amount to unprofessional conduct or misconduct. In substance, that is tantamount to the 1996 Act test of being satisfied that a complaint raises a matter that may amount to misconduct or unsatisfactory professional conduct.[4]

8 Second, the learned trial judge had stated that -

... it was not, in my view, unreasonable, in the Wednesbury Corporation sense, for the Commissioner to conclude that the complaint by Wisewoulds was not confined to a civil dispute about the existence of an obligation by Smirnios to pay the costs, and the claim by [the appellant] that he had a lien over Mr Smirnios' file. Rather ... the complaint related to the conduct of the [appellant], and in particular his conduct in the course of the communications between himself and Wisewoulds. It is not necessary, nor appropriate, for me to venture upon a definition of the phrase 'unsatisfactory professional conduct' as that phrase occurs in the Act. As I stated the definition in s.4.4.2 is an inclusive definition. Nonetheless it would not have been unreasonable for the commissioner to have taken the view that the complaint by Wisewoulds as to the conduct of the plaintiff was a 'disciplinary complaint', at least to the extent that it involved a complaint as to 'unsatisfactory professional conduct' by the plaintiff.[5]

9 Nettle JA held that the learned judge had applied a Wednesbury test which was apposite in the circumstances. He said also that -

1. I ... agree with his Honour that it was not unreasonable for the commissioner to take the view that the complaint was a 'disciplinary complaint', at least to the extent that it involved a complaint as to 'unsatisfactory professional conduct' by the appellant.
2. Section 4.4.2 of the Act defines unsatisfactory professional conduct as follows:

'Unsatisfactory professional conduct' includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

58. Section 4.4.4 of the Act provides that:

Without limiting section 4.4.2 or 4.4.3, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct-

(a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules;

(b) charging of excessive legal costs in connection with the practice of law;

(c) conduct in respect of which there is a finding of guilt for -

(i) a serious offence; or

(ii) a tax offence; or

(iii) an offence involving dishonesty;

(d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration;

(e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act;

(f) conduct of an Australian legal practitioner in failing to comply with an order of the Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law);

(g) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law.

59. Rule 21 of the Professional Conduct Rules provides that:

COMMUNICATIONS

A practitioner, in all of the practitioner's dealings with other practitioners, must take all reasonable care to maintain the integrity and reputation of the legal profession by ensuring that the practitioner's communications are courteous and that the practitioner avoids offensive or provocative language or conduct.

1. As the judge observed, Wisewoulds' letter of complaint alleged that communication between Wisewoulds and Mr Byrne had been marred by Mr Byrne's manner, method of communication and irrational behaviour. The gravamen of the complaint was not only that the appellant had failed to provide Wisewoulds' with a copy of the fee agreement but also that the appellant had failed to respond reasonably and professionally to requests that he do so. Contrary to the appellant's contentions, the complaint was not about the nature or amount of the costs claimed by the appellant but as to the nature of the conduct of the appellant in response to repeated requests that he provide a copy of the fee agreement to Wisewoulds.
2. Counsel for the appellant submitted that, even if that were so, the alleged communications between the appellant and Wisewoulds were in fact courteous and not offensive or provocative and certainly not in contravention of Rule 21. I reject that submission. In my view, the appellant's alleged conduct in repeatedly ignoring Mr Marsh's apparently reasonable requests for a copy of the fee agreement, coupled with the appellant's references to idle threats and bullying, were rude and in context sufficiently discourteous, offensive and provocative as to be capable of contravening Rule 21.
3. Counsel for the appellant submitted further that the appellant was under no obligation to provide a copy of the fee agreement. For present purposes I am prepared to assume that was so. But that does not alter my perception that it was not unreasonable for the commissioner to take the view that the complaint was a 'disciplinary complaint'; at least to the extent that it involved a complaint as to 'unsatisfactory professional conduct' by the appellant. I agree with the judge that it is at least fairly arguable that the appellant's conduct in steadfastly ignoring Mr Marsh's requests for a copy of the fee agreement and in corresponding in the strident and intemperate terms which he employed amounted to unprofessional conduct.[6]

10 Third, his Honour concluded that the decision was not one which could attract certiorari. But this did not mean that the appellant was without remedy.

11 Fourth, as to the content of the requirement that the appellant be given a right to be heard, his Honour said this:

... The content of natural justice is variable according to the circumstances of the case[7] and, in the ordinary case, it should not require much more than the commissioner inviting the solicitor to respond to the complaint and specifying a relatively short period of time (perhaps no more than a week after giving notice) in which any such response should be provided. In other kinds of cases, for example in cases of real urgency, or where the giving of notice would likely lead to the destruction of evidence or something of that nature, the content of natural justice might be reduced; in some cases perhaps even to the point of effectively abrogating it altogether. All in all, there should be few cases in which there is much of a problem.[8]

12 Fifth, his Honour stated that the declaration which he proposed (it was in fact made) was -

without prejudice to the ability of the commissioner to deal further with the complaint, after affording the appellant a right to be heard, in the exercise of her discretion.

14 First, his Honour treated the complaint as being a single complaint, not a number of complaints. This was understandable, because the conduct complained of was an amalgam of positions taken by the appellant and the manner of their being taken.

15 Second, his Honour spoke of it not being unreasonable for the Commissioner to take the view that 'the complaint' was a 'disciplinary complaint' 'at least to the extent that it involved a complaint as to "unsatisfactory professional conduct".' The words 'at least' appear not to have been intended to distinguish between the positions taken by the appellant and the manner of their taking, but rather to distinguish between 'unsatisfactory professional conduct' and 'professional misconduct'. By s 4.2.3(1) of the Act -

A 'disciplinary complaint' is a complaint about conduct to which this Chapter applies to the extent that the conduct, is established, would amount to unsatisfactory professional conduct or professional misconduct.

16 Third, his Honour did not say anything about the right to be heard carrying with it a right to reasons.

The complaint raised afresh with the appellant

17 I return to the chronology. This Court delivered judgment on 16 May 2008. By then, almost two years had elapsed from the making of the complaint. It being evidently intended that complaints should be dealt with expeditiously,[9] this was unsatisfactory. But the desire for a speedy outcome could not detract from the need that proper process be followed.

18 On 14 July 2008 - that is, about two months after the Court delivered judgment - the Commissioner wrote to the appellant as follows:

COMPLAINT BY MR PETER SMIRNIOS

Pursuant to section 4.2.8 of the Legal Profession Act 2004 ('the Act') I am writing to notify you that I have received a complaint against you from Mr Peter Smirnios. Details of the nature of the complaint are that the complainant alleges that:

1. Failing to provide a copy of a fee agreement between yourself and Mr Smirnios despite a verbal and written requests to do so.
2. Failing to release a copy of Mr Smirnios' file to him by erroneously claiming a lien over the file for unpaid costs.
3. Acting in an unprofessional and obstructive manner.

I enclose a copy of the complaint for your information.

This matter has been allocated case number LSC/06/3097. Would you please quote this reference number in any further contact with this office.

POSSIBLE DISCIPLINARY COMPLAINT

The matters alleged by the complainant appear to raise a disciplinary complaint within the meaning of section 4.2.3 of the Act.

Before I decide whether to treat the complaint as a disciplinary complaint pursuant to section 4.2.3, and whether I should then deal with the complaint pursuant to Part 4.4 of the Act, or summarily dismiss it pursuant to section 4.2.10 of the Act, you are invited to make preliminary submissions to me as to whether I should treat the complaint as a disciplinary complaint, and whether it should be investigated or summarily dismissed.

Such submissions must be made within one week of service of this notice. Please note that any submissions that you make may be provided to the complainant.

Your submissions should be limited to the above question. You will be given the opportunity as a later stage to provide me with your full written explanation of the subject matter of the complaint pursuant to section 4.4.11 of the Act should I investigate the complaint.

If I do not hear from you within this time, I will proceed to determine whether the complaint should be investigated or summarily dismissed on the basis of what I have before me.

19 It is notable that a copy of the complaint was enclosed with the Commissioner's letter (which I shall call 'the notification letter'). The gist of the complaint - made by letter with many enclosures - was that the appellant had adopted wrong positions about several matters, and that he had done so in an objectionable manner. The Commissioner's summary in the numbered points 1-3 had a tendency, I think, to break down the complaint in a way which did not reflect the integrated nature of the conduct which was complained of.

20 The notification letter stated, in a passage relied upon by the appellant in these proceedings, that '(t)he matters alleged by the complainant appear to raise a disciplinary complaint within the meaning of section 4.2.3 of the Act'. But the letter also afforded the appellant a week within which to make submissions whether (1) the complaint should be treated as a disciplinary complaint - vide s 4.2.3(1); and, if it was so treated, whether it should be investigated - vide Part 4.4 - or summarily dismissed - vide s 4.2.10(b) and (f).

21 That the Commissioner afforded the appellant the opportunity just mentioned was doubtless a response to this Court's earlier decision. The statutory obliteration of that decision by s 23 of the Professional Standards and Legal Profession Acts Amendment Act 2008, operative from 12 December 2008, was not in point.

22 In a lengthy letter dated 25 July 2008, the appellant responded. He contended that the Commissioner had prejudged the issue whether Mr Smirnios' complaint was a civil complaint - that is, a complaint involving a 'civil dispute' as defined by s 4.2.2(2) of the Act - rather than a disciplinary complaint. He stated that he did not believe that the Commissioner was able to bring an unbiased mind to the complaint. He requested that some other person consider the complaint and his response.

23 The appellant also provided a substantive response, in which he - (1) set out an account of events that very sharply contrasted with the account given by Wisewoulds; (2) maintained his contention that the complaint involved a 'civil dispute'; and (3) specifically addressed each of the three allegations identified by the Commissioner in her letter of 14 July.

24 The appellant's response also revealed that the total amount claimed by him from his former client was $6387.20 (some of which appears, in any event, to have been paid by Mr Smirnios directly to counsel); and that Wisewoulds in fact inspected a copy of the fee agreement later in 2006. Proper professional conduct is important. So is proper process. That said, the litigation which eventuated and which has persisted appears to me to be disproportionate to the substance of the dispute.

25 In any event the Commissioner responded by letter ('the decision letter') dated 6 August 2008. I should set out the relevant parts of what she said:

COMPLAINT BY PETER SMIRNIOS

I refer to my letter dated 14 July 2008 setting out details of the nature of the above complaint.

Thank you for your letter dated 25 July 2008 in response to my invitation in that letter.

Following consideration of the complaint and your submissions I have now decided that I can deal with the complaint as a disciplinary complaint for the following brief reasons:

1. Whilst I note you submit that the matter is a civil dispute, not a disciplinary complaint, I cannot accept this submission. The complaint is a disciplinary complaint as defined in section 4.2.3 of the Legal Profession Act 2004 ('the Act') because it is a complaint about conduct which, if established, would amount to unsatisfactory professional conduct or professional misconduct. A civil dispute is defined in section 4.2.2. of the Act. The complainant did not raise a dispute about your costs with me.
2. I have determined that there is no reason for me to exercise my discretion to summarily dismiss the complaint pursuant to section 4.2.10 of the Act. The matters you raise in your submissions set out the history of the matter and raise contentions about the subject matter of the complaint however they do not provide persuasive argument to bring the matter within any of the grounds under section 4.2.10.

DISCIPLINARY COMPLAINT

I note you seek to have an impartial and fresh mind consider your matter. Pursuant to section 4.4.9 of the Act I have referred the disciplinary complaint raised by this matter to the Law Institute of Victoria, being a prescribed investigatory body for the purposes of the Act. That body is required to investigate the complaint and report to me on its progress. At the completion of the investigation I will make a determination in respect of the disciplinary complaint in accordance with the Act.

26 I pause to make these observations. First, when informing the appellant that the Institute would investigate the complaint, the Commissioner noted that the appellant sought 'to have an impartial and fresh mind consider your matter'. Second, what the appellant had sought, perhaps not altogether clearly, was that the Commissioner get someone else to decide whether the complaint was a disciplinary complaint and, if it was, whether a discretion should be exercised to summarily dismiss it. Third, the Commissioner stated, consistently with the Act, that the Institute was not to exercise a final decision-making role. That was to be a matter for her.

The second proceeding. An application for review

27 Having received the decision letter, the appellant brought an application for review pursuant to the Administrative Law Act 1978 (Vic) ('the ALA'). This Court having held that a claim for relief in the nature of certiorari was not maintainable in respect of a relevant decision of the Commissioner, presumably the appellant sought to access the relief which he considered was potentially available under that Act. It includes - see s 8(1) - a requirement that an administrative decision-maker provide a statement of reasons for decision when the same is requested.

28 So far as I can see, the Commissioner at no stage challenged the appropriateness of the review proceeding. Those advising her apparently acted on the tacit assumption that, if reasons were in fact provided, there must be a remedy for a demonstrated error in reasoning, or for inadequacy of reasons.

29 On 1 September 2008, a judge in the Trial Division made an order for review. It called upon the Commissioner to show cause why her decision should not be reviewed on the grounds that she -

1. failed to have regard or any proper regard to the meaning of s 4.2.8 of the Legal Profession Act 2004,
2. failed to have proper regard to the meaning of the phrase 'civil dispute' as defined in s 4.2.2 of the Legal Profession Act 2004,

1. failed to have regard or any proper regard to the meaning of s 4.2.10(1)(b) and (f) of the Legal Profession Act 2004,

1. failed to have regard or any proper regard to the meaning of the phrase 'unsatisfactory professional conduct' as defined in s 4.4.2 of the Legal Profession Act 2004,
2. failed to have any or any proper regard to the meaning of the phrase 'professional misconduct' as defined in s 4.4.3 of the Legal Profession Act 2004,
3. failed to have any or any proper regard to the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner,

(g) failed to consider and identify what conduct set out in the letter of [complaint] to the Law Institute of Victoria dated 27 June 2006 ('[the complaint] letter') could be said to be conduct which if established could be said to be conduct which fell short of the standard and competence that a member of the public is entitled to expect from a reasonably competent Australian legal practitioner,

1. failed to consider and identify what conduct set out in [the complaint] letter could be said to be conduct that, if established:

(i) involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, or

(ii) could justify a finding that the plaintiff is not a fit and proper person to engage in legal practice.

1. failed to observe the rules of natural justice in making the said determination in that:

(i) she failed to identify and/or give particulars of the aspects [the complaint] letter said to give rise to or constitute unsatisfactory professional conduct or professional misconduct under the Legal Profession Act 2004;

(ii) failed to identify the elements of the conduct complained of that constituted unsatisfactory professional conduct or professional misconduct under the Legal Profession Act 2004;

(iii) she failed to recuse herself from making the decision as to whether or not the complaint made in [the complaint] letter should be dismissed when she had previously decided and had submitted to this Honourable Court in proceeding No 7520 of 2006 that the complaint constituted a 'disciplinary complaint' within the meaning of the Legal Profession Act 2004;

1. was biased and/or that there was a reasonable apprehension of bias in that:

(i) she had previously decided and submitted to this Honourable Court in proceeding No 7520 of 2006 between the applicant and the respondent that the same conduct complained of by Mr Smirnios constituted 'disciplinary matters';

(ii) she failed to give any or any adequate reasons for her decision and in particular she gave (sic) failed to analyse or identify the relevant aspects of the complaint constituting a disciplinary complaint evidencing her failure to give proper and/or impartial consideration to the matters before her;

(iii) she had prejudged the issues she was required to determine.

1. Failed to provide any or any adequate reasons as she was required to do pursuant to section 8 of the Administrative Law Act 1978.[10]

30 As articulated in the show cause order, there were four components to the impugned decision:[11] (1) that the dispute was not a civil dispute; (2) that the complaint was a disciplinary complaint; (3) that there was no reason to summarily dismiss the complaint; and (4) that the Institute be directed to investigate the complaint.

31 The proceeding came to trial in May 2009. On 29 May a judge ordered that the show cause order should be discharged. Before this Court is an appeal against the order made on 29 May.

32 Before the learned judge below, the decisions attacked were (1) the decision that the complaint was a disciplinary complaint; and (2) the decision that there was no reason to summarily dismiss the complaint.

33 The principal grounds upon which the decisions were attacked were (1) that the Commissioner did not provide adequate reasons for her decisions; and (2) that the Commissioner, being either biased or there being a reasonable apprehension that she was biased, wrongfully refused to recuse herself.

34 As to the first of those grounds, the learned judge took as his starting point the proposition that the nature of the complaint was not in doubt. He referred to the matters summarised by the Commissioner in the notification letter.

35 His Honour next stated that the Commissioner had given reasons for rejecting the appellant's submission that the complaint was not a disciplinary complaint. He fixed upon the following passage in the decision letter:

The complaint is a disciplinary complaint as defined in s 4.2.3 of the Legal Profession Act 2004 ... because it is a complaint about conduct which, if established, would amount to unsatisfactory professional conduct or professional misconduct.

36 His Honour then focused upon the task which the Commissioner undertook at this stage. He described it this way, in part by reference to what was said by Nettle JA when the dispute was earlier before this Court -

The commissioner receives complaints. She is then required to make an assessment as to whether the complaint is a 'civil complaint', a 'disciplinary complaint' or involves both a civil complaint and a disciplinary complaint. Her task is not to make any finding with lasting consequences for a legal practitioner - but merely to stream the complaint in accordance with Part 4.2 (noting that she also has the power to summarily dismiss in an appropriate case). The consequence of the commissioner's decision that the complaint is a disciplinary complaint is merely that the complaint then falls to be dealt with under Part 4.4. Under Part 4.4, the complaint is then investigated before a determination is made to whether the matter should proceed to the Victorian Civil and Administrative Tribunal, where it will be heard and determined. As Nettle JA said, the explanatory memorandum of the Legal Profession Act and the Second Reading Speech 'are replete with encomia as to the simplicity and expedition which [these provisions] were predicted to achieve'.

His Honour continued:

'In those circumstances, Parliament surely cannot have expected much more by way of the initial assessment of a complaint than an educated prediction as to whether the conduct the subject of complaint, if proved, may amount to unprofessional conduct or misconduct. In substance, that is tantamount to the 1996 Act test of being satisfied that a complaint raises a matter that may amount to misconduct or unsatisfactory professional conduct.'[12]

When one looks at the nature of the determination required of the defendant, the complexity of the issues and whether the issues are ones of fact or of law or mixed law and fact, and the function to be served by the giving of reasons, in my view it was reasonable for the commissioner to give as a reason that the complaint is a disciplinary complaint 'because it is a complaint about conduct which, if established, would amount to unsatisfactory professional conduct or professional misconduct'. It was not necessary to say more. Such a reason enables the Court to review (either under the Administrative Law Act or otherwise by judicial review) the decision of the defendant. Specifically, the obligation to provide reasons in the circumstances of this case did not require each of the matters referred to in the order nisi made on 1 September 2008 to be explicitly addressed. Undoubtedly, the position would be different if the defendant were making findings after an investigation and upon which orders of the kind referred to in ss 4.4.17, 4.4.18 or 4.4.19 might be made. However, that is not this case.[13]

... what was required of the defendant was that she receive Mr Smirnios' complaint and that she consider whether it was (or involved) a disciplinary complaint. This step involved a determination by the defendant as to whether the conduct the subject of the complaint, if proved, may amount to unprofessional conduct or misconduct within the meaning of the Legal Profession Act. By its very nature, such a decision is not one which involves a reasoning process requiring much elaboration. In this case, the defendant's path of reasoning is disclosed in the first sentence and in the paragraph numbered 1 of her letter of 6 August 2008. In the first sentence of her letter of 6 August, the defendant refers to the allegations that arise from the letter (failing to provide a copy of the fee agreement, failing to release the file and acting in an unprofessional and obstructive manner). The defendant then states that the complaint (in the way she has construed it) is one 'about conduct which, if established, would amount to unsatisfactory professional conduct or professional misconduct'. For the reasons given above, nothing more was required.

38 It was necessary for his Honour to deal with an argument that the Commissioner was shown to have erred by effectively determining, so it was said, that the complaint was a disciplinary complaint because it was not a civil dispute. It was also necessary for him to deal with a submission that the Commissioner had wrongly concluded that the complaint was not a civil dispute because it did not raise a dispute about the appellant's costs - it being pointed out that a civil complaint embraces more than a costs dispute - vide s 4.2.2(a)-(c).

39 The judge resolved the issues raised by those submissions by referring to the basis upon which the appellant had contended, in his response to the Commissioner's initial letter of notification, that the complaint was a civil dispute. The Commissioner's conclusion that the complaint was not a costs dispute, his Honour concluded, had been a response to the way in which the appellant had put the matter. In any event, said his Honour, a complaint is not necessarily wholly a civil or a disciplinary complaint. So the appellant's position had been based upon a false assumption. Further again, his Honour concluded, the Commissioner had not reasoned that the complaint was a disciplinary complaint because it was not a civil dispute.

40 With respect to alleged inadequacy in the Commissioner's reasons for her decision not to summarily dismiss the complaint, his Honour referred to this passage in the decision letter -

I have determined that there is no reason for me to exercise my discretion to summarily dismiss the complaint pursuant to section 4.2.10 of the Act. The matters you raise in your submissions set out the history of the matter and raise contentions about the subject matter of the complaint however they do not provide persuasive argument to bring the matter within any of the grounds under section 4.2.10.

(i)n essence, [the Commissioner] decided not to exercise her discretion to summarily dismiss Mr Smirnios' complaint because all that [the appellant] had done was simply show that there were contested issues between the parties.

42 I turn to the way in which the learned judge resolved the issue of bias. It is convenient to mention at the outset that - (1) it was conceded by counsel for the appellant that the case concerned ostensible rather than actual bias;[14] and (2) in answer to a contention for the Commissioner that a perception of apprehended bias, if the same existed, should have been raised with this Court when it made orders on the previous occasion, counsel for the appellant submitted that the problem only revealed itself in the Commissioner's letter of 14 July.

43 The judge concluded that there was nothing to the appellant's contention of reasonable apprehension of bias, which rested upon contentions that - (1) the Commissioner's letter of notification had not referred to the possibility that the complaint involved a civil dispute; (2) the reasons were inadequate; and (3) the Commissioner had not recused herself. His Honour found it unnecessary to consider the issue of necessity.

44 Seventeen grounds are set out in the Amended Notice of Appeal:

1. The Trial Judge erred in considering the contents of the Defendant's letter dated 14 July 2008 ('the first letter') formed part of the reasons for the decision of the Defendant given in her letter of 6 August 2008.
2. The Trial Judge should have held the first letter was not part of the reasons for the decision of the Defendant because:

2.1. the first letter gave rise to the obligation on the part of the Defendant to afford natural justice to the Plaintiff,

2.2. to permit the first letter to form part of the reasons is to wrongly permit reliance upon the reasoning of the Defendant made before the Plaintiff exercised his right to be heard,

2.3 to permit the first letter to form part of the reasons is to accept a decision made by the Defendant prior to the exercise of the Plaintiff of his right to be heard,

1. The Trial judge erred in not concluding that in addition to the Plaintiff having a right to be heard on the question of whether there was reason to believe the complaint was a disciplinary complaint and on whether the complaint should be dismissed pursuant to s 4.2.10 of the Legal Profession Act 2004 ('the LPA') the Plaintiff had a right to be heard on the question of whether the complaint was civil complaint within the meaning of the LPA and whether the complaint should be dismissed pursuant to s. 4.2.10(1)(b) of the LPA as being vexatious, misconceived, frivolous or lacking in substance.
2. The Trial Judge erred in finding the task of the Defendant was '... not to make any finding with any lasting consequence for the legal practitioner - but merely to stream the complaint in accordance with Part 4.2 ...' of the LPA.
3. The Trial Judge should have considered that the right of the Plaintiff to have the complaint treated as:

5.1. a civil complaint to be dealt with pursuant to 4.2 of the LPA, and

5.2. a disciplinary complaint to be dealt with pursuant to Part 4.3 of the LPA,

and that the manner of dealing with the complaint had lasting consequences for the Plaintiff when regard is had to the provisions of those Parts of the LPA.

1. By reason of the failure to recognize the lasting consequences of the classification of the nature of the complaint (whether it was a civil dispute or a disciplinary complaint) the Trial Judge wrongly concluded that in the circumstances it was not necessary for the Defendant to say more in her letter of 6 August 2008.
2. Having regard to the lasting consequences which flow from a proper classification of the nature of the complaint the Trial Judge should have held the Defendant did not explain any or in any sufficient way a process of reasoning which justified her decision the reasons for which are set out in the letter of 6 August 2008.
3. If the first letter forms part of the reasons for decision then the Trial Judge should have held that there was an error of law evidenced by the reasons, alternately the reasons did not evidence any or any sufficient process of reasoning because the 'nature of the complaint' as identified in that letter cannot give rise to a disciplinary complaint because:

8.1. the nature of the complaint as classified by the Defendant is not such as to fall within the definition of 'disciplinary complaint' contained in the LPA,

8.2. the LPA does not recognize the concept of 'acting in a unprofessional and obstructive manner',

8.3. the phrase 'acting in an unprofessional and obstructive manner' is vague and meaningless in the context of the LPA.

1. The Trial Judge should have held, having regard to the lasting consequences of the classification has upon the Plaintiff, the reasons for decision should have identified what conduct is alleged to have occurred which consisted of contravention identified or identifiable provisions of the LPA, the regulations or the legal profession rules, if any.
2. The Trial Judge wrongly concluded that a 'fair reading' of the correspondence passing between the parties' disclosed the omission to consider all the parts of the definition of 'civil dispute' in S 4.2.2 of the LPA was not the product of any omission on the part of the Defendant but rather was responsive to the Plaintiffs letter of 25 July 2008 which placed emphasis on the issue of legal costs.
3. The Trial Judge should have held that the Plaintiff in his letter of 25 July 2008 raised a number of issues which clearly arose out of or in relation to the provision of legal services to the complainant by the Plaintiff and reliance upon paragraph 50 of that letter as a basis of justifying a response limited to whether or not the complaint was a 'costs dispute' is to wrongly ignore the true nature and content of the whole response.
4. The Trial judge should have held the whole response of the Plaintiff required the Defendant to consider all of the parts of the definition of 'civil dispute' contained in s. 4.2.2 (2) of the LPA and the reasons for decision are such that it is clear the Defendant paid no regard to the full definition and show an error of law on the face of the record.
5. The Trial Judge wrongly held the reasons for decision were responsive to a 'false issue' set up by the Plaintiff because:

13.1. The Plaintiff's argument did not presuppose a complaint is either a civil or disciplinary complaint,

13.2. The fact that there could be a complaint which was both civil and disciplinary is not relevant,

13.3. If the complaint is both civil and disciplinary then pursuant to 4.2.11(2) then each part of the complaint is to be dealt with in accordance with Part 4.3 and Part 4.4 of the LPA as is appropriate and each part has its own significant consequences for the Plaintiff.

1. The Trial Judge wrongly concluded that the failure by the Defendant to have regard to all the definition of 'civil dispute' had no operative effect in this case or inured to the benefit of the Plaintiff and the failure was irrelevant to the outcome.
2. Whether or not the complaint is disciplinary or civil and how it can be treated thereafter results in significant benefits to the Plaintiff and the Trial Judge should have held that in the circumstances the Defendant was required to provide full reasons for her decision.
3. The Trial Judge erred in holding that the Defendant should not be disqualified on the grounds of apprehended bias because:

16.1. he has assumed that because the reasons provided in the letter of 6 August 2009 were sufficient that was an answer to the question of bias,

16.2. he wrongly held that the failure of the Defendant in the circumstances to accede to the request by the Plaintiff to recuse herself was not evidence of bias,

16.3. he failed to have any proper regard to the context of the statements made by the Defendant's counsel in the previous proceedings and the assumptions and the statements made in the letter of the 14 July 2009 namely, that the Plaintiff was to limit his submissions to the issues of whether she should treat the complaint as a disciplinary complaint and whether it should be investigated or summarily dismissed.

16.4. he failed to have regard to the fact that the Defendant had not invited submissions on whether or not the complaint was a civil complaint and had not invited submissions on whether the complaint was vexatious, misconceived, frivolous or lacking in substance (s 4.2.10(1)(b) of the LPA) and rather sought submissions on whether the complaint requires no further investigation (s. 4.2.10(1)(f) of the LPA)

1. The Trial Judge should have held that the conduct of the Defendant in the previous proceedings, the provision of lack of adequate reasons and the limited basis upon which the Plaintiff was permitted to make submissions gave rise to an inference that the Defendant was not prepared to provide to the Plaintiff an opportunity to be heard on all issues relating to the complaint and thus there was a reasonable apprehension of bias which justified the Court ruling that the Defendant should be prohibited from further considering the matter.

45 Despite the many grounds of appeal, the submissions for the appellant focused upon relatively few propositions. Thus:

(1) The judge below approached consideration of the adequacy of reasons on the footing that the Commissioner's decision to classify the complaint as a disciplinary complaint had no lasting consequences for the appellant. That was wrong, because the classification opened up the prospect of orders of the kind mentioned in ss 4.4.17, 4.4.18 or 4.4.19 of the Act. Such orders could not be made on consideration of a civil complaint under s 4.3.

(2) On this account alone, the reasons had to be more than brief.

(3) It should be inferred from the Commissioner's failure to refer to paragraphs (b) and (c) of the definition of 'civil dispute' that the Commissioner had failed to consider them. Such failure could not be said to be 'irrelevant to the outcome', the judge below had been wrong to so conclude, and it was not for the judge in any event to pass upon relevance.

(4) The judge wrongly imported the content of the notification letter into the decision letter. The letter identified a conception of 'disciplinary complaint' which departed from the language of the statute. As well, it pre-judged the question whether the complaint was a civil or disciplinary one.

(5) The Commissioner's bald rejection of the appellant's submissions, and her assertion that the matter concerned conduct which, if established, would amount to a disciplinary offence, did not reveal a path of reasoning at all. It simply expressed conclusions.

(6) The appellant's submissions to the Commissioner had raised matters which revealed a genuine dispute between him and Mr Smirnios such as to constitute the complaint a civil dispute. The judge had been wrong to conclude that the Commissioner's response had merely responded to the way in which the appellant had couched his submissions.

(7) The judge had determined bias by holding, in effect, that the Commissioner's decision was correct. But complaints of apprehension of bias directed enquiry to the time before the decision was made.

(1) At common law, his client was under no obligation to give reasons at all. Neither did such an obligation arise expressly or implicitly under the Act in respect of the decisions classifying the complaint and refusing to summarily dismiss it.

(2) The rules of natural justice do not extend to the giving of reasons.

(3) The Commissioner had in fact voluntarily provided reasons. Having done so, it was accepted that they must give sufficient explanation so as to enable a review of some kind or another by a supervising court.

(4) Even so, the appellant's capacity to challenge the reasons given was circumscribed.

(5) The reasons should not be read over-zealously. Sensibly read, and in the context set by the Act, they were adequate.

(6) The review was not a merits review. But the appellant's arguments in this Court sought to treat it as such.

(7) Even the reasons of a court need not explicitly refer to each and every matter considered by it in arriving at its decision. It could not be inferred, because the Commissioner did not refer to some matter in her reasons, that she had not considered it.

(8) Contrary to the appellant's argument, the Commissioner did not import the entirety of the notification letter into her decision letter.

(9) The Commissioner's reasons did not simply state conclusions.

(10) The judicial review had to recognise that what was being reviewed was the exercise of an administrative discretion.

(11) The judge's reasons for rejecting the apprehended bias ground were correct. In any event, the principle of necessity applied.

47 What is before this Court is an appeal from the primary judge, not an application to review the decision of the Commissioner. In support of the appeal, however, both parties addressed much argument to the adequacy or otherwise of what the Commissioner described as her reasons for decision. Appellant's counsel contended, as I have noted, that the reasons were inadequate and otherwise defective, and that the judge below had erred in concluding to the contrary. In the event, it is convenient to examine the Commissioner's reasons; and in that context, to examine the complaints made by the appellant about the way in which the primary judge disposed of the attack upon the reasons.

48 With respect to the complaint of inadequacy of reasons, three questions arise. First, reasons having been provided, were they - contrary to the conclusion of the learned judge below - sufficient in the circumstances?[15] Second, if the reasons were inadequate, is that a basis, of itself, for granting relief under s 7 of the ALA? Third, if the answer to question 2 is 'no', then is any and what other remedy available?

49 The following matters bear upon the answer to the first question.

50 First, the Commissioner was, for present purposes, an administrative decision-maker - not a court and not a person exercising a function which could be described as quasi-judicial.[16]

51 Second, it is the common law in Australia that an administrative decision-maker is not obliged, except in very particular circumstances, to provide reasons for decision. In Public Service Board of New South Wales v Osmond,[17] Gibbs CJ said that -

there is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions ...[18]

52 It has been held in England that the failure of a tribunal to give reasons may (and will in some circumstances) constitute an error of law. Failure to give reasons has been equated with a denial of justice. Three decisions to that effect were mentioned by Gibbs CJ in Osmond.[19] His Honour explained them by noting that in each of them there was a statutory obligation to give reasons. But Lord Donaldson, in a later case, said that the explanation offered by Gibbs CJ with respect to two of the cases had 'not occurred to anyone at the time'; and that the decisions 'were not based on any such consideration'.[20]

53 It is also the situation that his Lordship held, in a case unaffected by a statutory obligation, that fairness may require a tribunal

to give sufficient reasons for its decision to enable the parties to know the issues to which it addressed its mind and that it acted lawfully.[21]

54 That this is the law in England was made clear by R v Secretary of State for the Home Department; ex parte Doody.[22] But it is not the position in Australia.

55 Third, some statutes expressly provide, in substance, that the giving of reasons is a condition of the exercise of the power. The legislation considered in Dornan v Riordan[23] was of that kind. In such a case, failure by the decision-maker to provide (adequate) reasons will constitute jurisdictional error, and thus be subject to judicial review. But the Legal Profession Act does not provide that giving reasons is a condition of the exercise of the power to decide whether a complaint, if the facts alleged were proved, might (or would be capable of) constituting a disciplinary complaint. Neither does it do so with respect to a decision not to summarily dismiss a complaint. Compare the situation - vide s 4.2.10(2) - if a decision is made to summarily dismiss.

56 Fourth, the language of a statute sometimes permits the implication of a requirement that reasons be provided for a decision. In such a case, failure to provide reasons will constitute jurisdictional error. In the present case, however, the very existence of s 4.2.10(2) tends against the implication of such a requirement with respect to a decision of the kind referred to in [55].

57 Fifth, it follows from what I have thus far said that, subject to the operation of s 8 of the ALA, the Commissioner was under no obligation to give reasons for the impugned decisions.

58 Sixth, whether or not the Commissioner's reasons were intendedly a response to a request made under s 8(1) of the ALA, her counsel accepted, as I have said, that the reasons which she gave needed to provide a sufficient explanation for the impugned decisions as to enable review by a court - whether under the ALA or otherwise.[24]

59 Seventh, I accept the submission for the Commissioner that the adequacy of the reasons which she provided ought be tested by reference to the nature of the task which she had to undertake,[25] that the task was not one admitting of much elaboration of reasons, and that the reasons of an administrative decision-maker should not be over zealously scrutinised. It is also plain that in a case in which the plaintiff seeks review of an administrative decision, the proceeding cannot be allowed to become a merits review.

60 Eighth, counsel for the Commissioner was correct in submitting that both decisions in question were discretionary in character. That is what Nettle JA held when the matter was last before this Court.[26]

61 Ninth, the bases upon which an administrative decision may be challenged assist an understanding of what the reasons, if provided in such a case, need to expose. Thus, particularly, the presence or absence of jurisdictional error or error of law on the face of the record. There is specific mention of the second of those bases in s 8(4) of the ALA; whilst s 10 of that Act provides that a statement of reasons by a tribunal or an inferior court, whether requested under s 8 or not, forms part of the record.[27]

62 Tenth, I agree with the submission for the Commissioner that it does not follow from silence in the reasons about a particular matter that the decision-maker did not take that matter into account. Even in the case of the reasons of a court or judge it is not necessary that explicit reference be made to each and every matter which has been considered.[28]

63 In the context thus far established, I consider that the learned primary judge erred in concluding that the Commissioner's decision letter met the test of adequacy of reasons with respect to her determination that, as she put it, 'I have now decided that I can deal with the complaint as a disciplinary complaint'. The entire reasons for that decision - thus characterised by the Commissioner - consisted of a paragraph in which she rejected the appellant's submission that the matter was a civil dispute - saying that the complainant had not raised a dispute about costs; and in which she stated that the complaint was a disciplinary complaint 'because it is a complaint about conduct which, if established, would amount to unsatisfactory professional misconduct or professional misconduct.' The latter statement did no more than express a conclusion that the appellant's conduct fell within one or other of the statutory formulations of conduct satisfying the definition of 'disciplinary complaint'.[29] Assuming, as the parties did, that the decision was in some way amenable to review, I thus respectfully disagree with the conclusion of the learned judge below that the reasons given were sufficient to enable a court to review the decision. With one qualification - as to which see [66] below - it is impossible, in my view, to determine from the reasons given whether the Commissioner relevantly erred. The principle that reasons need not state every matter which the decision-maker has considered does not provide the answer to a case in which no reasons have been given.

64 Without saying a lot, it was quite possible for the Commissioner to explain her conclusion. So much is evident from the way in which Nettle JA addressed the issue, in the context of 'unreasonableness', when the matter was last before this Court.[30]

65 Given my conclusion that what the Commissioner asserted were her reasons were not reasons at all, and so failed the adequacy test, it is strictly unnecessary to consider whether the learned judge below erred in any of the ways contended for by the appellant and mentioned at [45] (1), (3), (4) and (6) above. Nonetheless, for completeness, I shall say something about those contentions.

66 I mentioned a qualification to my conclusion that the Commissioner's self-described reasons did not enable a court to determine whether or not she relevantly erred. Implicit in the submission for the appellant noted at [45](3) above was the proposition, explicitly raised below, that the Commissioner reasoned that (1) the complaint did not raise a civil dispute because it was not a dispute about costs; and (2), because it was not a civil complaint on that account, it must be a disciplinary complaint. Such reasoning would be erroneous on two scores. Further, it would not necessarily follow - if it could be relevant - that, as the learned judge below concluded, the assumed error had no operative effect or else operated to the appellant's advantage.

67 His Honour rejected the submission that the Commissioner reasoned in the manner described. I have set out the way in which he disposed of the matter at [39]-[40] above.

68 The Commissioner commenced her 'reasons' by saying: 'Whilst I note that you submit that the matter is a civil dispute, not a disciplinary complaint, I cannot accept this submission'. What she there said about the appellant's submission was accurate. The appellant argued that the complaint, in its entirety, raised a civil dispute. The Commissioner stated the submission as a precursor to rejecting it. That was beyond reproach.

69 The Commissioner then expressed her conclusion that the complaint was a disciplinary complaint because it was a complaint about conduct which would, if established, amount to unsatisfactory professional conduct or professional misconduct. But she added:

A civil dispute is defined in section 4.2.2 of the Act. The complainant did not raise a dispute about your costs with me.

70 It seems to me, in the event, that the Commissioner resolved the character of the complaint by positive and negative methodology: first, by concluding that the alleged conduct met the statutory description of a disciplinary complaint; and second, by concluding that it did not meet part of the statutory definition of a civil dispute. The latter methodology cannot be simply ignored.

71 My conclusion that the Commissioner adopted dual methodology means that I do not accept the appellant's argument that the Commissioner reasoned that the complaint was a disciplinary complaint because it was not a civil complaint. That leaves, however, the question whether what I have called the negative methodology was defective.

72 In my view, the Commissioner's reference to the complaint not being 'a dispute about your costs' was responsive to the appellant's contention, by his letter of 25 July 2008, that, if there was any basis for the complaint, it was one 'in relation to legal costs'. That is the language of the opening part s 4.2.2(2)(a) of the Act. Insofar as the Commissioner adopted what I have called negative methodology, I consider that she did not err by directing her mind to so much of the definition of 'civil dispute' as the appellant relied upon.

73 In the event, the Commissioner was not shown to have erred in this particular way.

74 I should next say something about the submissions for the appellant noted at [45](1) and (2). The judge did remark that the Commissioner's task at the particular stage was 'not to make any finding with lasting consequences for a legal practitioner - but merely to stream the complaint[31]';31 and he reasoned that in such circumstances much less was required than would be required if the Commissioner 'was making findings after an investigation and upon which orders of the kind referred to in ss 4.4.17, 4.4.18 or 4.4.19 might be [32]de'.32

75 I accept the second part of his Honour's analysis. But the first part understates the significance of a decision by the Commissioner of satisfaction that a complaint is, subject to proof of the conduct alleged, capable of being a disciplinary complaint. It is true that such a decision does 'stream the complaint'. It is also true that, of itself, such a decision does not impose the consequences which can only flow from an investigation and the Commissioner's subsequent dealing with the matter.[33] But the very making of a decision which 'streams' the complaint into Part 4.4 of the Act exposes a practitioner to a range of penalties and other consequences which bear no resemblance to the remedies which may flow if a civil complaint is established. The learned judge reasoned, in effect, that the adequacy or otherwise of reasons for the Commissioner being satisfied that a complaint was capable of being (if the conduct was proved) a disciplinary complaint should be assessed in the context that the consequences of the decision were only the streaming of the complaint. In my opinion, for the reasons which I have attempted to explain, that approach was erroneous.

76 Then there is the contention which I noted at [45](4) above. In my opinion, the decision letter did not import the entirety of the notification letter, and the judge below did not err in concluding that so much o[34]the latter34 was imported as illuminated the substance of the complaint. I see no fault in the Commissioner adopting the particular course. In no way did it disadvantage the appellant. Rather, it provided the fullest explanation of the conduct alleged against him - allegations to which he responded seriatim.

77 Although it cannot be determinative of the outcome of the appeal, I wish to mention two other matters concerning the Commissioner's asserted reasons. First, at one stage in the argument I was attracted to the idea that the reasons were sufficient to reveal a different error. The notification letter identified the impugned conduct in three numbered paragraphs. The decision letter, on the other hand, referred simply to 'conduct which, if established, would amount to unsatisfactory professional conduct or professional misconduct'. I formed the provisional view that it was impossible to know from the latter whether the Commissioner was referring to all the conduct alleged by the three paragraphs, or else the conduct alleged by one or more of them. If that was not clear, how could it be said that the Commissioner's reasons were sufficient to enable judicial review? But on further considering the matter, and having regard to what I said at [19] above, I consider that the reasons given in the decision letter must be understood to relate to all of the conduct alleged by the three numbered paragraphs in the notification letter.

78 Second, there is an aspect of the decision letter which was not raised by counsel or raised by the Court. In its earlier decision, this Court said, with respect to 'disciplinary complaint', that the Commissioner's task was to consider whether she was satisfied that the conduct alleged against the appellant, if proved, might, or was capable of, amounting to unsatisfactory professional conduct, or professional misconduct.[35] But the Commissioner did not express herself in such a way. She first stated that 'I have now decided that I can deal with the complaint as a disciplinary complaint'; and she went on to say that the complaint was about conduct which, if established, 'would amount to unsatisfactory professional conduct or professional misconduct'. I doubt that recourse to not reading reasons over-zealously is able to mask the differences between what was needed and what was done.

79 Upon the unexamined assumptions that the Commissioner was a 'tribunal' and that the impugned decision[36] was a 'decision' for the purposes of the ALA, and upon the further assumption that the reasons were a response to a request made under s 8(1) of that Act, and that they were insufficient to enable a court to subject the critical decision to judicial review, what remedy lies? The question bears upon what order this Court should make.

80 Again making the assumptions to which I referred at [79] - I will not keep repeating it - it flows from my conclusion that the reasons were insufficient that had the appellant sought an order of the Supreme Court under s 8(4) of the ALA for the provision of further reasons, on the ground that 'the only statement furnished is not adequate to enable a Court to see whether the decision does or does not involve any error of law', such an order should have been made. The further effect of s 8(4), apart from any later order which the Supreme Court might have made to enforce compliance, is that want of compliance with the order would stand, in effect, as an error of law on the face of the record - this triggering entitlement to appropriate relief.

81 But the appellant, I consider, did not seek further reasons. The 'Order Nisi to Review' made by a judge in the Trial Division on 1 September 2008 simply called upon the Commissioner to show cause why her determination of 6 August 2008 'should not be reviewed' on a number of grounds. The grounds appear to have been directed to establishing legal error, presumably as the basis for seeking an exercise of power by the Court under s 7 of the ALA. The last ground stated was that the Commissioner 'failed to provide any reasons as she was required to do pursuant to section 8 of the ALA'. I think it is clear, relating this ground to the remedy sought, that it was not a request for further reasons. Instead, the appellant sought to rely upon the inadequacy of reasons as a basis for relief under s 7.

82 That this is the correct analysis is supported by two other circumstances. First, the reasons of the learned judge below say nothing to suggest that the appellant sought a s 8(4) remedy for deficient reasons. Second, the relief sought by the Notice of Appeal is quite inconsistent with the appellant seeking such a remedy.

83 In this Court, however, counsel for the appellant orally submitted, referring to the reasons for judgment of Kyrou J in Sherlock v Lloyd and ors,[37] that s 8 of the ALA provides a complete regime for a court to follow where reasons are not provided, or are inadequate. In either such case, he argued, the matter must be returned to the decision-maker.

84 That submission involved acceptance of the correctness of the first instance decision in Sherlock - the effect of which was to deny, if reasons for decision are inadequate, that an appellant is entitled to relief of a kind which could be granted for, inter alia, error of law on the face of the record; and to assert that the entire remedy for inadequate reasons lies within s 8(4) and whatever may flow if adequate reasons are in time provided. On the other hand, the submission paid no attention to the problem that the appellant had not sought further reasons under s 8(4).

85 The parties directed no argument to the correctness or otherwise of Sherlock. Recently, this Court affirmed the correctness of the decision of Kyrou J.[38] In the event, upon the assumptions made, the appellant's only statutory claim to relief depended upon action which he did not take.

86 Sherlock makes it clear that the ALA does not have the effect that the failure by a 'tribunal' which makes a 'decision' to give adequate reasons does not provide an affected party with a right to prerogative relief where previously there was none.[39] The matters which I have mentioned at [51], [55] and [56] explain why there is no such right in this case. My conclusion is compatible with the conclusion of Nettle JA that, for other reasons, the[40]ecision here sought to be reviewed40 was not amenable to certiorari.

87 I should address, before going further, the appellant's contention that the Commissioner so conducted herself as to give rise to apprehension of bias; and that the primary judge erred in concluding to the contrary. In this Court, it was submitted that the Commissioner first exhibited pre-judgment by her notification letter. Thus was explained the appellant not having objected to the remitter to the Commissioner by this Court in 2008. Pre-judgment was further evidenced, so it was said, by the Commissioner having persisted with the matter and so having made the impugned decisions.

88 Counsel submitted that the bias issue would be alive if the Commissioner's reasons were considered satisfactory. But if the reasons were held to be insufficient, and there was to be a remitter, it could not be to the Commissioner. That was so even though the Commissioner is now a different person. The argument ran that the new Commissioner had been in office when the present litigation was in train; and that by supporting the former Commissioner's administrative decision the apprehension of bias carried over. Counsel submitted that an Acting Commissioner could be appointed for the purposes of a remitter. He referred to s 6.3.8(b) of the Act. He did not dispute that the principle of necessity would operate if apprehension of bias extended to the new Commissioner and if an acting appointment could not be made by recourse to s 6.3.8(b).

89 I have concluded that the Commissioner's asserted reasons were inadequate. According to the appellant's submissions, that makes it unnecessary to pass upon the issue of apprehension bias on the part of the Commissioner. That said, in my opinion, the learned judge below arrived at the correct conclusion. I do not accept that apprehension of bias, as understood by the authorities, and as applied to an administrative decision-maker, arose by reason of either of the circumstances relied upon by the appellant.

90 That leaves for consideration the appellant's submission that, if there was to be some form of remitter, it could not be to the present Commissioner. I reject that submission. I consider that there could not possibly be apprehension of bias by reason of the new Commissioner holding that office, and thus tacitly supporting by this litigation the administrative decision of his predecessor. Finally, I take leave to doubt the possible availability of s 6.3.8(b), not only because of its language, but also having regard to subsections (3) and (4) of that section. In those circumstances, the principle of necessity would come into play.

91 Further to what I have said at [81]-[82], the appellant asserted by his Notice of Appeal that the trial judge should have 'ordered and declared that' -

The decision of the Defendant to treat the complaint as a disciplinary complaint and refer the complaint to the Law Institute of Victoria for investigation pursuant to the provisions of the Legal Profession Act 2004 be quashed.

and

The Defendant be restrained from dealing with the complaint until further order by a trial judge of this Court.

92 Absent any error which could entitle the appellant to orders of that kind, the question arises whether the Court should permit the appellant, in substance, to amend his claim for relief, then allow the appeal and remit the subject-matter of the decisions to the Commissioner for the giving of further reasons under s 8(4) ALA.

93 I accept that the proceeding was not commenced in defiance of authority. Until Sherlock, the majority of single instance decisions in this Court favoured the view that it was an error of law, amenable to prerogative relief, for an administrative tribunal to provide inadequate reasons for decision. A person affected by a decision, on that view, had an option whether to seek prerogative relief, or else further reasons. It is hardly surprising that such persons sought prerogative relief. Better to have a decision struck down than give the decision-maker a second opportunity to provide error-free and adequate reasons.

94 Under s 8(2) ALA, an application for reasons must be made not later than 90 days after the giving or notification of the decision in respect of which reasons are sought. There is no specified period, however, within which a s 8(4) application - which the subsection contemplates will be a discrete application - must be made.

95 Ordinarily, one would expect expedition on the part of the person affected by a decision; and it should be expected that the Supreme Court would not give tacit approval to delay by exercising its discretion under s 8(4) to order further reasons. But in the present case, in the circumstances which I have described, I would not refuse to make a s 8(4) order only by reason of the appellant's delay.

96 But should the appellant be now permitted to seek such relief, and should such an order be made? In my opinion, the following considerations are pertinent: (1) the subject-matter of the complaint dates back to events which occurred in April and May 2006; (2) what is intended by the Act to be a speedy consideration and resolution of complaints remains bogged-down at an initial stage; (3) the appellant has twice brought proceedings in the Supreme Court to challenge preliminary decisions of the Commissioner; (4) with one exception, neither proceeding has succeeded on the merits of arguments advanced by the appellant. On the first occasion, this Court identified a ground - not identified and relied upon by the appellant - in consequence of which the appeal had to be allowed despite all the appellant's grounds being rejected. On the present occasion, the appellant's many grounds of complaint were rejected below, and I would reject all but one of the contentions pursued on the appeal; (5) this whole matter has taken on a life of its own, unrelated to what might be thought to be the relative lack of seriousness of the allegations raised by the complaint. It appears to me that no participant[41] - the Commissioner included, but particularly the appellant - has distinguished himself or herself by signs of balance. There is every reason to apprehend, if an order was made for further reasons, that the provision of such reasons would trigger a further judicial skirmish in which the appellant would continue his habit of making a constellation of unjustified complaints. Again, there would be delay; (6) the nature and details of the complaint made against the appellant, and the detail of his response, are well-known. The Commissioner's conclusion that the complaint was a disciplinary complaint seems to me to be unimpeachable, although the true seriousness of the matters raised by the complaint is another matter; (7) this Court made it clear, on the earlier occasion, that not much was required by way of reasons

in order to explain the Commissioner's conclusion that the complaint was a disciplinary complaint. The reasons given thereafter were, it might be said, too smart by half. They invited further proceedings - though not the over-blown allegations raised by the appellant.

97 Given the opportunity to respond to this Court's decision in Sherlock, the appellant sought an order under s 8(4) of the ALA. Having regard to the matters just mentioned, and notwithstanding the want of reasons, I would not permit the appellant to seek relief under that provision at this late stage. Putting to one side altogether questions as to the validity of what I have described at [79] as the unexamined assumptions underlying the claim to ALA relief, I consider that it would not be just, considering the position of both parties, to permit such a claim to be raised, and then to grant relief thereunder. In consequence, the decision of the Commissioner should stand.

99 I have had the benefit of reading in draft the judgments of Ashley JA and Emerton AJA. Their Honours identify that both at trial and on appeal the case was conducted on the basis, seemingly tacitly assumed by the respondent, that the impugned decision was a 'decision' as defined in s 3 of the ALA. Hence, the appeal is to be resolved on the basis of that assumption, whether it be right or wrong. Thus approaching the matter, I agree with Ashley JA generally for the reasons that he gives that the appeal should be dismissed. I add only that, as at present advised and acknowledging that the question as to whether the decision of the commissioner was a 'decision' for the purpose of the ALA was not argued, I agree with the further observations of Emerton AJA.

100 I have had the benefit of reading in draft form the judgment of Ashley JA. I agree with His Honour for the reasons that he gives that, on the assumption that the Administrative Law Act 1978 (Vic) (the 'ALA') applied to the decision under review below, the appeal should be dismissed as incompetent.

101 The appeal was argued on the basis that any reasons given by the Commissioner should give sufficient explanation of her decision so as to enable review thereof by the Court either under the ALA or otherwise by judicial review.[42] It was implicit that the decision of the Commissioner to treat the complaint against the appellant as a disciplinary complaint pursuant to ss 4.4.7 and 4.4.9 of the Legal Profession Act 2004 (Vic) (the 'Act') was a 'decision' that was amenable to review under the ALA.[43] The appeal must be and has been decided on that basis.

102 Without the benefit of hearing any argument on this point, however, I express the view, albeit tentative, that the decision of the Commissioner to treat the complaint as a disciplinary complaint was not a 'decision' for the purposes of the ALA, that the Commissioner was under no obligation to provide reasons for the decision and that it was therefore unnecessary for the Commissioner's letter of 6 August 2008 notifying the appellant of her decision to provide an explanation that would enable a Court to see whether the decision did or did not involve any error of law, as contemplated by s 8(4) of the ALA.

103 A 'decision' in respect of which reasons may be required to be given under ss 8(1) and (4) of the ALA is a decision which operates in law to determine a question affecting the rights of a person - in this case, the appellant, as the person about whom the complaint was made and whose conduct it is proposed to investigate. In Byrne v Victoria Marles and Law Institute of Victoria Ltd,[44] Nettle JA (with whom Dodds-Streeton and Coghlan JJA agreed) gave detailed consideration to whether the decision by the Commissioner to treat a complaint as a disciplinary complaint under ss 4.4.7 and 4.4.9 was a decision that could be set aside by a grant of certiorari. His Honour concluded that it was not. A decision that is amenable to certiorari must have a discernible or apparent legal effect upon rights, for it is that legal effect which may be quashed by the action of the writ,[45] and the decision of the Commissioner did not have such an effect.[46]

104 Importantly, however, Nettle JA held that although the appellant could not obtain the remedy of certiorari to quash the impugned decision, he was not necessarily devoid of a remedy. His Honour identified a number of features in the complaints regime in the Act resulting in there being practical merit in providing a solicitor with an opportunity to make a submission or adduce facts to the Commissioner before the Commissioner determined that the complaint was a disciplinary compliant which needed to be investigated.[47]

105 Accordingly, while the decision of the Commissioner to treat the complaint as a disciplinary complaint does not determine rights, and is not sufficiently connected with the final decision affecting rights, to be amenable to judicial review on grounds other than want of procedural fairness, a limited right has been brought into existence by the statute, which is a right to be heard as to whether the complaint should be treated as a disciplinary complaint and referred for investigation.

106 As this court has recently observed, the ALA was not enacted to create new grounds of review or to make substantive changes to the general law.[48] The purpose of the ALA was to eliminate procedural technicalities which attended the machinery of the prerogative writs.[49] A decision that is not reviewable under general law because it does not relevantly affect rights will not be reviewable under the ALA.

107 If there was no obligation to provide reasons under the ALA, the Commissioner's letter of 6 August 2008 did everything that it was required to do by informing the appellant that she had considered the appellant's submissions and had nonetheless decided to treat the complaint as a disciplinary complaint and not to dismiss it.

108 The appellant well understood that complaint against him was a complaint about conduct of a kind, which if made out, could constitute unsatisfactory professional conduct. He had been told as much by Nettle JA in the Byrne v Marles.[50] As his Honour there observed, the gravamen of the complaint was not only that he had failed to provide Wisewoulds with a copy of the fee agreement, but also that he had failed to respond reasonably and professionally to requests that he do so.[51] The appellant responded to the invitation to make preliminary submissions by denying that his manner and method of communicating was anything other than courteous and measured, thereby acknowledging that the complaint was a complaint about rude and obstructive - that is to say, unsatisfactory - professional conduct.

[1] Byrne v Marles & Anor [2008] VSCA 78; (2008) 19 VR 612, 615-618 [2]-[19].

[2] It appears that this fax may have crossed with Wisewoulds' letter of 27 June 2006.

[3] The proceeding was brought under Order 56 of Chapter 1 of the Rules. See Byrne v Marles and anor [2007] VSC 63, [5].

[4] Byrne v Marles and Anor [2008] VSCA 78; (2008) 19 VR 612, 627 [49].

[5] [2007] VSC 63 [48].

[6] [2008] VSCA 78; (2008) 19 VR 612, 628-630, [56]-[62].

[7] Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487, 514 (Aickin J); Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1, 16 [48] (McHugh and Gummow JJ).

[8] [2008] VSCA 78; (2008) 19 VR 612, 638 [89].

[10] Originally, an order nisi in more limited terms was made on 27 August 2008. The order extracted above was made on appeal by the plaintiff from the orders originally made on 27 August. [2007] VSC 63.

[11] Another view is that there were at least two decisions.

[14] Byrne v Legal Services Commissioner [2009] VSC 210, n 28.

[15] I will focus upon the Commissioner's reasons for deciding that she could 'deal with the complaint as a disciplinary complaint'. Although the Notice of Appeal made some reference to the Commissioner's decision not to summarily dismiss, that topic was no part of the appellant's written or oral submissions in this Court.

[16] Compare Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372.

[17] (1986) 159 CLR 656.

[19] Norton Tool Co Ltd v Tewson [1972] EW Misc 1; [1973] 1 WLR 45, 49; Alexander Machinery Ltd v Crabtree [1974] ICR 120, 122; and R v Immigration Appeal Tribunal, ex parte Khan [1983] QB 790.

[20] R v Civil Service Appeal Board; Ex parte Cunningham [1991] 4 All ER 310, 317.

[22] [1993] UKHL 8; [1994] 1 AC 531.

[23] (1990) 24 FCR 564.

[24] This adopted the formulation of the learned judge below. See Byrne v Legal Services Commissioner [2009] VSC 210 [12].

[25] As to which, see again the judgment of Nettle JA in Byrne v Marles and Anor [2008] VSCA 78; (2008) 19 VR 612, 627 [49].

[26] Ibid 639 [91] as explained at 627-628 [49]-[52]. With respect to the first decision, the difference is between the Commissioner being satisfied that there was reason to believe that conduct the subject of a complaint, if proved, might amount to a disciplinary offence; and there being reason to believe that such may be the case.

[27] This facilitating the identification of error upon which an appellant is entitled to rely.

[28] See, as a recent example of the principle, A Team Diamond Headquarters Pty Ltd v Main Road Property Group Pty Ltd [2009] VSCA 208, [55] (Redlich JA and Beach AJA).

[29] The distinction between conclusions and reasons was discussed, in a factually very different context, in Kentucky Fried Chicken Pty Ltd v Gantidis and anor [1979] HCA 20; (1979) 140 CLR 675, 683-685 (Stephen J).

[30] Byrne v Marles and anor [2008] VSCA 78; (2008) 19 VR 612, 629-630 [60]-[62].

[31] Byrne v Legal Services Commissioner [2009] VSC 210 [16].

[33] In which I include the prospect of application to the Victorian Civil and Administrative Tribunal.

[35] That is the gist of what Nettle JA said in Byrne v Marles and anor [2008] VSCA 78; (2008) 19 VR 612, 627 [49], 628 [54] and, obliquely, 639 [91].

[36] Or decisions, if the Commissioner's characterisation of the complaint as a disciplinary complaint was one decision, and her decision not to summarily dismiss was another.

[37] [2008] VSC 450.

[38] Sherlock v Llloyd & ors [2010] VSCA 122.

[39] Rarely, inadequacy of reasons may enable an inference to be drawn that the decision-maker erred in the exercise of power, this grounding an entitlement to relief. See Sherlock v Lloyd, ibid [69]-[70]. But that was not the gravamen of the appellant's case here. Rather, inadequacy of reasons itself was said to found such entitlement.

[40] Being a replication of the decision considered by Nettle JA.

[41] I say nothing about Mr Smirnios, but rather focus upon the conduct of his later solicitor.

[42] Paragraph [9] of the respondent's outline of argument.

[43] Indeed, the proceeding below was the return of an order for review of the decision under s 7 of the ALA.

[44] [2008] VSCA 78.

[45] Byrne v Marles, op. cit.,[64] referring to Hot Holdings Pty Ltd v Creasy (1995) 185 CLR 149, 159.

[46] Nettle JA concluded that the decision of the Commissioner to treat the complaint as a disciplinary complaint for the purposes of ss 4.4.7 and 4.4.9 did not affect the appellant's rights in a legal sense. In his Honour's view, a decision of the Commissioner to investigate a complaint as a disciplinary complaint did not have any discernible effect upon any subsequent decision of the Victorian Civil and Administrative Tribunal upon an application made under s.4.3.13 of the Act.

[47] In particular, his Honour referred to the requirement in s 4.2.8 to give notice of the complaint to the solicitor and the power in s 4.2.10 to dismiss the complaint summarily in certain circumstances. The right to be heard before the Commissioner determines that the complaint is a disciplinary complaint affords the solicitor an opportunity to head off the complaint in limine, by persuading the Commissioner not to treat it as a disciplinary complaint or to dismiss it and not proceed with it under s 4.2.10 of the Act.

[48] Sherlock v Lloyd & Ors [2010] VSCA 122, [54].

[49] Ibid [47]; Monash University v Berg [1984] VicRp 30; [1984] VR 383, 388-389.