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[2008] VSCA 78
Court of Appeal (Vic)
2008-05-16
NETTLE, DODDS-STREETON JJA and COGHLAN AJA
Original judgment source is linked above.
1st Revision 21 May 2008 - [19], [66], [67], [83], [87]
LEGAL PRACTITIONERS - Solicitor - Disciplinary complaint - Whether complaint made to Law Institute of Victoria and forwarded to Legal Services Commissioner a complaint within the meaning of Part 4.2 of the Legal Profession Act 2004 - Notice of complaint - Whether service of copy complaint constituted notice of details and nature of complaint - Assessment of complaint - Whether determination that complaint a disciplinary complaint a question of jurisdictional fact or of opinion - Unsatisfactory professional conduct - Whether solicitor's alleged conduct in repeatedly ignoring apparently reasonable requests capable of constituting unsatisfactory professional conduct - ; , referred to; , , , -Professional Conduct and Practice Rules 2005, Rule 21.
PUBLIC SERVICE - Public Service Body Head - Legal Services Commissioner - Whether employee of Government Department seconded to Office of Legal Services Commissioner 'employee' of Commissioner - Delegation - Whether delegation to holder of a specified office valid as delegation 'to any person' - Owendale Pty Ltd v Anthony [1967] HCA 52; (1967) 117 CLR 539, applied; - Legal Services Act 2004, ss 6.3.12, 6.4.1; Public Administration Act 2004, ss 16(1)(g), 20(1), 20(2).
ADMINISTRATIVE LAW - Certiorari - Whether Commissioner's determination that complaint a disciplinary complaint susceptible to certiorari - Natural justice - Whether solicitor had right to be heard before Commissioner made determination - Ainsworth v Criminal Justice Commissioner [1992] HCA 10; (1992) 175 CLR 564, applied; Cornall v AB (A Solicitor) [1995] VICSC 7; [1995] 1 VR 372, distinguished; Murray v Legal Services Commissioner [1999] NSWCA 70; (1999) 46 NSWLR 224, referred to.
1 This is an appeal from a judgment given in the Common Law Division. The appellant's claim below was for judicial review of a decision by the first respondent ('the Commissioner') to treat a complaint against the appellant as a 'disciplinary complaint' within the meaning of Part 4.2 of the Legal Profession Act 2004 ('the Act') and to refer it to the second respondent ('the Institute') for investigation pursuant to Part 4.4 of the Act. The judge dismissed the claim.
**2 As appears from his Honour's reasons, 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.
3 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.
4 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.
5 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.
6 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.
7 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.
**8 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.
9 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.
10 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.
11 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.
Once more, there was no reference to the fee agreement.
12 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.
13 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.
14 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.
**15 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'.
16 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.[1]
17 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.
18 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.
19 On the same day the Commissioner wrote to the appellant, omitting formal parts, as follows:**
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.
20 On 14 July 2006, the appellant commenced proceedings by originating motion seeking orders in the nature of certiorari, prohibition, mandamus and declarations of right. The Statement of Relief or Remedy in the originating motion contained eighteen separate prayers for relief and specified fourteen grounds on which the relief was sought. When the matter got to trial, however, counsel for the appellant limited the appellant's case to the following four contentions:
(1) The letter of Wisewoulds to the Law Institute dated 27 June 2006 was not a complaint under the Act, because it was not made to the Commissioner as required by s.4.2.5. The Law Institute did not have authority to receive complaints on behalf of the Commissioner. Accordingly the Commissioner does not have jurisdiction to investigate the allegations in the letter.
(2) The Commissioner acted through a purported delegate, Ms Janet Cohen. The delegation by the Commissioner of her functions to Ms Cohen was invalid for two reasons, namely:
(a) under s.6.3.12 the Commissioner may only delegate her functions to an employee; Ms Cohen was not at the relevant time an employee of the Commissioner;
(b) in any event the instruments of delegation relied on by the first defendant are too vague and uncertain to constitute valid delegations under s.6.3.12 of the Act.
(3) The Commissioner erred in determining that the letter of Wisewoulds was capable of constituting a "disciplinary complaint". [Counsel] submitted that no reasonable authority could have concluded that the letter contained anything more than a "civil complaint".
(4) The Commissioner failed to give to the plaintiff a notice of the complaint which complies with the requirements of s. 4.2.8 of the Act.
**22 Under cover of Grounds 1 to 8 the appellant contended that the judge was in error in holding that the complaint was a complaint to the Commissioner within the meaning of Part 4.2 of the Act. Counsel for the appellant argued that the plain and ordinary meaning of Chapter 4 of the Act is such as to establish but one means of complaint to the Commissioner - namely, by complaining directly to the Commissioner - and, in counsel's submission, the judge erred in ignoring that meaning. Counsel argued further in support of that contention that the Commissioner did not have power under the Act to delegate the function of receiving complaints; and, in particular, that there is no provision in s 6.3.12(2) of the Act which enables the Commissioner to delegate the function of receiving complaints. Counsel also submitted that, although the Institute may have received and forwarded the complaint to the Commissioner as part of a standing arrangement, the Commissioner had no authority to enter into such an arrangement and, in counsel's submission, it was irrelevant that the Institute was once empowered under previous legislation to receive complaints. Finally, it was said on this point that it was plain that Wisewoulds did not intend to complain to the Commissioner. The complaint was in form a complaint to the Institute and it was clear from the correspondence that Mr Marsh was aware of the right to complain to the Commissioner and chose instead to complain to the Institute.
23 I accept those submissions up to a point. As may be seen from the correspondence set out above, Mr Marsh made his complaint to Institute advisedly. As appears from the terms of the complaint, he knew that it was possible to complain to the Commissioner but, to begin with, he chose to direct his complaint to the Institute. Nor without more could the act of the Institute in forwarding the complaint to the Commissioner have turned it into a complaint to the Commissioner. So long as Mr Marsh's intention was to restrict his complaint to the Institute, his complaint remained just that.
24 But that said, I see no reason to doubt that a complaint once made to the Institute can be converted with the complainant's consent into a complaint to the Commissioner. Contrary to the appellant's argument, there is nothing in the provisions of the Act dealing with the form of complaints to the Commissioner[2] that is inconsistent with that possibility. The Act leaves such possibilities to the common law and common sense and here there was evidence that, both before and after the Institute forwarded the complaint to the Commissioner, Mr Walsh in effect ratified the Commissioner's decision to treat the complaint as a disciplinary complaint to the Commissioner and refer it to the Institute.
25 On 10 July 2006, Ms Denise Broughton of the Commissioner's office had a telephone conversation with Mr Marsh and, from the note of the conversation, it is apparent that Mr Marsh was informed that the Commissioner proposed to treat his complaint as a disciplinary complaint to the Commissioner and that he was content that she should do so. There was also a letter from the Commissioner to Mr Marsh dated 22 August 2006 in which the Commissioner informed Mr Marsh that she had been enjoined from investigating Mr Marsh's complaint until the hearing and determination of the proceeding and that the hearing of the proceeding had been listed for 7 March 2007.
26 Counsel for the appellant objected that the note of Ms Broughton's conversation with Mr Marsh was hearsay and thus, he submitted, inadmissible. But I think it plain from the face of the note, taken in conjunction with the affidavit of Cara Louise O'Shanassy of 8 March 2007 to which it was exhibited in evidence, that the note was a business record of the Commissioner and admissible in evidence as proof of the truth of its contents pursuant to ss 55(2) and (5) of the Evidence Act 1958.
27 In the result, while I accept that Mr Marsh's complaint may not have been at the outset a complaint to the Commissioner within the meaning of Part 4.2 of the Act, I consider that it had become such by the time the Commissioner determined to treat it as a disciplinary complaint and refer it to the Institute for investigation. On that basis, I reject Grounds 1 to 8.**
**28 Under cover of Grounds 9 to 14, the appellant contended that the judge erred in holding or finding that the Commissioner delegated to Ms Cohen the functions of referring the complaint to the Institute and notifying the appellant in accordance with s 4.2.8 of the Act.
29 Counsel for the appellant advanced two arguments in support of that contention: first, that Ms Cohen was not at relevant times an employee of the Commissioner, but rather an employee of the Department of Justice who was seconded to the Commissioner; and secondly, that even if she were an employee of the Commissioner, there was no evidence of an effective delegation because there was no evidence that Ms Cohen was a member of a class of persons prescribed under the Act for the purposes of s 6.4.1 of the Act.
30 In my view neither of those arguments is persuasive. Beginning with the first, s 6.3.12(1) of the Act provides that :**
The Commissioner, by instrument, may delegate to an employee referred to in section 6.4.1 any function of the Commissioner, except this power of delegation.
31 Under s 20(1) of the Public Administration Act 2004 a 'public service body Head' (which is defined in s 16(1)(g) of that Act as including the Commissioner in relation to the Office of the Legal Services Commissioner), is vested on behalf of the Crown with all the rights, power, authorities and duties of an employer in respect of the public service body (in this case the Office of the Legal Services Commissioner) and the employees in it. Section 20(2) or the Act then provides that:
(2) Without limiting subsection (1), the appropriate public service body Head-
(a) may employ as many persons as are required for the exercise of the functions of the public service body;
(c) may issue lawful instructions that must observed by employees;
(d) may determine (with the approval of the Premier in the case of an executive) the remuneration (including an increase or reduction in remuneration) and other terms and conditions of employment of any individual employee;
(e) may pay allowances, bonuses or gratuities to employees;
(f) may transfer employees to duties in other public service bodies or in public entities;
(i) may second employees to other bodies or take persons on secondment from other bodies; [3]
(j) may authorise periods of leave of absence for employees or make payments to employees in lieu of leave.
**32 In my view, the clear implication of those provisions, particularly s 20(2)(i), is that an employee of the Crown in right of the State of Victoria who is seconded to the Office of the Legal Services Commissioner is an employee of the Commissioner within the meaning of s 6.3.12(1) of the Legal Services Act.
33 Ms Cohen gave evidence[4] without objection or contradiction that she was seconded to the Commissioner on 12 December 2005; was remunerated by the Commissioner from 12 December 2005; at all relevant times held the position of Director, Investigations; as such, took direction from and was answerable to the Commissioner; and on 11 October 2006 entered into a written contract of employment with the Commissioner. On that basis the judge found that Ms Cohen was seconded to the office of the Commissioner and that, at all relevant times during Ms Cohen's secondment to the Commissioner, she was engaged full time on the work of the Commissioner under the supervision and control of the Commissioner and remunerated by the Commissioner.[5] With respect, I agree with his Honour.
34 Counsel for the appellant criticised the judge for what he said was his Honour's failure to ascertain the party with whom Ms Cohen had contracted and for what counsel described as an impermissible assumption that the power to direct and the obligation to pay arose out of a contract between the Commissioner and Ms Cohen. I reject that criticism. In face of Ms Cohen's clear and uncontradicted evidence, it is plain that there was an adequate evidential basis for the judge's findings.
35 As has been seen, the judge also found that the reference in s 6.3.12 of the Act to 'employee' included a common law employee and his Honour determined that, by reason of the control which the Commissioner exercised over Ms Cohen and the fact that she paid her salary, Ms Cohen was a common law employee of the Commissioner. Given the view to which I have come on the basis of s 20 of the Public Management Act, I find it unnecessary to decide whether s 6.3.12 extends to a common law employee not mentioned in s 20.
36 As to the second argument, s 6.3.12(1) of the Act provides:**
The Commissioner, by instrument, may delegate to an employee referred to in Section 6.4.1 any function of the Commissioner, except this power of delegation,
Any employees that are necessary for the purposes of the Board or Commissioner are to be employed by the Commissioner under Part 3 of the Public Administration Act 2004.
**37 The nub of the argument is that, because the delegation in question was in terms a delegation to a person performing the functions of a particular designated office, it was a delegation to the holder of an office and not a delegation to an employee. In counsel's submission, it is beside the point that Ms Cohen may have been an employee and that she held the office referred to in the delegation, because of the possibility that from time to time the holder of the office may not be an employee.
38 That submission is not persuasive. Authority makes plain that a delegation to the holder of a specified office may be a valid exercise of a statutory power to delegate 'to any person'.[6] There was no suggestion at trial, still less evidence that anyone other than an employee of the Commissioner would or could be appointed to perform the duties of the Director, Investigations. And even if there had been evidence of the possibility of a non-employee holding the office referred to in the delegation, the fact is that Ms Cohen was and is an employee who was and is holding the office, and so in effect the delegation was and is a delegation to an employee. Perhaps, if someone else who was not an employee assumed the office and purported to invoke the instrument of delegation as authority to exercise the powers referred to in it, it would be concluded that he or she was acting ultra vires. But that is not this case.[7]
39 Counsel advanced a further argument - in effect, expressio unius est exclusio alterius - that, because s 6.3.12(1) provides that the Commissioner may delegate to 'an employee referred to in s 6.4.1', whereas s 6.3.12(2) provides that the Commissioner may delegate 'to a person who is, or who is a member of a class that is prescribed by the regulations', it is apparent that the intention of s 6.3.12 was to restrict delegations under that provision to named employees.
40 I reject that argument too. As I see it, the difference in verbiage between the two provisions is due to the fact that a delegations under s 6.3.12(1) must be to an employee, albeit that such a delegation may be in form a delegation to a specified office, whereas a delegation under s 6.3.12 may be made to a specified category of person who is not an employee.**
**41 It is convenient to deal next with the question of notice. The appellant contended that, because the copy of the complaint provided by the Commissioner did not include the attachments and did not specifically identify the conduct which it was said would if proved amount to unprofessional conduct, the Commissioner failed to comply with the obligation imposed by s 4.4.8 to give written notice of the complaint. Counsel for the appellant submitted that, in order to provide 'details of the nature of the complaint' in accordance with the section, it was necessary for the Commissioner to specify which of the conduct referred to in the letter was said to be unprofessional conduct or misconduct and why.
42 I reject that contention. In my view the judge was right for the reasons that his Honour gave. Given the point of the investigative process at which the Commissioner is required to notify a solicitor of a complaint - in terms, as soon as practicable after receipt of the notice - it seems to me that all that is expected is identification of the complaint and an outline of its contents and I find it hard to think of any better method of providing details of that sort than furnishing a copy of the complaint, just as the Commissioner did.**
Grounds 19-24 and 27-28 - Disciplinary complaint
**43 Under cover of Grounds 19-24 and 27-28, counsel for the appellant argued that the judge 'erred in concluding that it was not unreasonable in the Wednesbury[8] sense for the Commissioner to conclude that the complaint by Wisewoulds was not a civil dispute' and that his Honour should have concluded that 'no person acting as the Commissioner could have reasonably concluded that in the circumstances the complaint was capable of constituting a disciplinary complaint'.
44 That argument reflects the fact that the matter was put below and decided on the basis that the question of whether the Commissioner had power to refer Wisewoulds' complaint to the Institute was to be decided according to whether it was reasonably open to the Commissioner to conclude that the complaint was a 'disciplinary complaint'. As his Honour said:**
**45 In the course of argument before this court, however, counsel for the appellant contended for the first time that, because of differences in structure between the 2004 Act and the 1996 legislation, the test of Wednesbury unreasonableness is no longer to the point. Counsel submitted that the correct test now for the purposes of s 4.4.9 is whether the Commissioner is shown to have been incorrect in determining that the complaint was a disciplinary complaint - in effect, a test of whether the court agrees with the Commissioner that the complaint was a disciplinary complaint - and counsel referred to the following differences between the legislative regimes as support of that contention:
• First, although the 1996 Act employed concepts of 'unsatisfactory conduct' and 'misconduct' which were similar to those used in the 2004 Act, the 2004 Act introduced the new concepts of 'disciplinary complaint' and 'civil complaint'.
• Secondly, a 'disciplinary complaint' is defined in s 4.2.3 of the 2004 Act as:**
a complaint about conduct ... to the extent that the conduct, if established, would amount to unsatisfactory conduct or professional misconduct. (Emphasis added.)
**That is to be contrasted with the position under s 145 of the 1996 Act, where the Ombudsman was bound to investigate any complaint unless satisfied under s 141 that it did not raise a matter of conduct that may amount to misconduct or unsatisfactory conduct.
• Thirdly, under s 4.4.7 of the 2004 Act, the Commissioner is obligated to investigate each disciplinary complaint or, under s 4.4.9, to refer it to an investigating authority, unless:
b) 'The complaint is vexatious, misconceived, frivolous or lacking in substance';
e) 'The complaint is not one that the Commissioner has power to deal with.'[9]**
That is to be contrasted with s 145 of the 1996 Act which obligated the Ombudsman to investigate a complaint or to refer it to an RPA or the Board unless the Ombudsman dismissed the complaint under s 141 on the basis of being 'satisfied that the complaint [was] frivolous, vexations, misconceived or lacking in substance.'
**46 It followed, counsel argued, that whereas under the 1996 Act the Ombudsman was empowered to investigate a complaint if satisfied that it raised a matter that may amount to misconduct or unsatisfactory professional conduct (in other words, the test was one of the Ombudsman's satisfaction of what the situation was or may be), the position now is that the Commissioner is not empowered to investigate a complaint about conduct as a disciplinary complaint under Part 4.4 of the Act, or to refer it to an investigative authority under Part 4.4 of the Act, unless the complaint is a 'disciplinary complaint' (which is to say, is a complaint about conduct 'to the extent that the conduct, if established, would amount to unsatisfactory conduct or professional misconduct'). More precisely, as counsel put it, according to the plain and ordinary meaning of the 2004 Act, it is not enough that the Commissioner considers that impugned conduct if established would amount to unsatisfactory conduct or professional misconduct; still less whether the Commissioner considers that there is a reasonable likelihood that it would be found to be so.
47 There is some force in the argument. The literal construction of ss 4.4.7 and 4.4.9 is as counsel described it. The plain and ordinary meaning of ss 4.4.7 and 4.4.9 is that the Commissioner does not have power to treat a complaint as a disciplinary complaint or refer it to the Institute for investigation unless it is a disciplinary complaint and the plain and ordinary meaning of s 4.2.3 is that a complaint is not a disciplinary complaint unless it is about conduct which if proved would amount to unprofessional conduct or misconduct.
48 For the reasons which follow, however, I do not consider that the words of ss 4.4.7 and 4.4.9 are intended to be construed literally.[10]
49 To begin with, 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.
50 Secondly, as a matter of statutory context, it is significant that s 4.4.8 of the Act provides that the Commissioner may investigate conduct in the absence of complaint if the Commissioner has reason to believe that the conduct may amount to unsatisfactory professional conduct or professional misconduct. It is inherently improbable that Parliament intended to make the test for the investigation of a complaint or referral of the complaint to the Institute different to the test for the investigation of conduct in the absence of complaint.
51 Thirdly, there is nothing in the extrinsic materials pertaining to the 2004 Act which suggests that Parliament intended to alter the position in relation to the power of the appropriate authority to investigate a complaint; or to draw a distinction between the test for assessment of conduct the subject of a complaint and the test for assessment of conduct without complaint. Rather, to the contrary, the explanatory memorandum and second reading speech are replete with encomia as to the simplicity and expedition which the amendments were predicted to achieve.
52 Fourthly, s 4.4.13 provides that, after concluding the investigation of a complaint, the Commissioner must apply to the Tribunal if the Commissioner is satisfied that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of professional misconduct or unprofessional conduct.[11] Inasmuch as ss 4.4.7 and 4.4.9 of the Act are but steps along the way to a determination under s 4.4.13, it is to be doubted that Parliament intended the test for the purposes of ss 4.4.7 and 4.4.9 to be any more stringent than the test under s 4.4.13: namely, that the Commissioner be satisfied that there is a reasonable likelihood that a complaint is a disciplinary complaint.
53 Fifthly, a literal construction of ss 4.4.7 and 4.4.9 would be likely to result in considerable inconvenience and disruption. It would mean that any decision by the Commissioner to treat a complaint as a disciplinary complaint would be a decision of jurisdictional fact, and thus susceptible to merits based judicial review;[12] in which event the court would have to decide for itself whether the complaint was a disciplinary complaint.[13] That would open up the prospect of extensive judicial review proceedings (with expert and other evidence as to the nature of the complaint) being used at the outset to halt or disrupt the investigative processes envisaged by Part 4.4 of the Act. The presumption, however, is that Parliament does not intend to cause inconvenience of that kind[14] (even though the presumption is said to be of less force in the case of a statutory tribunal or for an administrative decision maker than in the case of a court).[15]
54 It is true that, in order to construe ss 4.4.7 and 4.4.9 as imposing a test of whether the Commissioner is reasonably satisfied that a complaint is a disciplinary complaint, it is necessary to imply words which do not appear in those sections and, according to high authority, it is a strong thing to read into an Act of Parliament words which are not there.[16] But where Parliament has chosen words which, if construed literally, would result in legislation missing the target at which it is aimed, and the words are reasonably open to another construction that will carry Parliament's intention into effect, the court may construe the words in that fashion even if it involves the addition of words to those which have been used.[17] And, for the reasons I have given, I consider that the words of s 4.4.7 are open to be construed as meaning that the Commissioner is required to investigate each complaint which the Commissioner has reason to believe is a disciplinary complaint and that the words of s 4.4.9 are open to be construed as meaning that the Commissioner may refer a complaint which the Commissioner has reason to believe is a disciplinary complaint.
55 In the result, I agree with the judge that the test for present purposes is the test of Wednesbury unreasonableness which his Honour applied.
56 I also 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.
57 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.
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-
(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:
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.
**60 As the judge observed, Wisewoulds' letter of complaint alleged that communication between Wisewoulds and Mr Byrne had been marred by Mr Byrnes' 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.
61 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 appellants' references to idle threats and bullying, were rude and in context sufficiently discourteous, offensive and provocative as to be capable of contravening Rule 21.
62 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.
63 Finally, counsel for the appellant argued that the judge had erred in holding that the Commissioner's decision to treat the complaint as a disciplinary complaint was so essentially procedural and not substantive as not to be susceptible to certiorari.[18] In the alternative he submitted that, whether or not the decision was one which was susceptible to certiorari, the decision so much affected the rights and interests of the appellant that the Commissioner should have allowed the appellant a right to be heard before making the decision.**
This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue: (1) where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently "affects rights" in a legal sense; (2) where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision-making process sufficiently "determines" or is connected with that decision.
The form in which a decision-making structure is established may be likely to indicate the nature of the function exercised at each stage within that structure. Nevertheless, the difference between the two situations outlined above is one of substance as well as form. In the second situation, the question becomes whether the stage of the process under challenge has the necessary effect on the final or ultimate decision ...[21]
**65 Counsel for the appellant submitted that it was plain that a decision of the Commissioner to investigate a complaint as a disciplinary complaint sufficiently determines rights or at least is sufficiently connected with a final decision affecting rights as to be susceptible to satisfy that requirement. Counsel for the Commissioner, to the contrary, submitted that the decision of the High Court in Australian Broadcasting Tribunal v Bond[22] and the later decision of the Full Court of the Federal Court in Edelsten v Health Insurance Commission[23] showed that it was plainly not so.
66 I prefer the latter view. Bond was concerned among other things with a finding of the Broadcasting Tribunal that Mr Bond had been guilty of improper conduct and that he would not be found to be a fit and proper person to hold a licence. The court held that the finding was not a determination to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) applied because it was not a determination for which the Act provided; it was no more than a step in the Tribunal's reasoning on the way to a finding for which the Act did provide that the licensees were no longer fit and proper persons to hold their licences. It was also observed in passing that a procedural determination would not be a 'decision' within the meaning of the Act because it would not be a substantive determination, albeit that the ruling as to Mr Bond was a substantive determination. That suggests that a decision of the Commissioner to investigate a complaint as a disciplinary complaint does not sufficiently determine and is not sufficiently connected with a final decision affecting rights as to be susceptible to certiorari.
67 In Edelsten, the Full Federal Court determined that decisions of officials of the Health Insurance Commission to refer a matter for investigation to a Medical Service Committee of Inquiry were not decisions within the meaning of s 3(3) of the Judicial Review Act, because they lacked any quality of finality and were not substantive determinations. Northop and Lockhart JJ considered that the decisions to refer did not decide anything of substance and that nothing could be decided until and unless the Committee determined to have a hearing at which point the machinery of the Act would come into operation.[24] Davies, J in a separate judgment, expressed views to similar effect. Edelsten, therefore, is also consistent with the view that a decision of the Commissioner to investigate a complaint as a disciplinary complaint does not sufficiently determine and is not sufficiently connected with a final decision affecting rights as to be susceptible to certiorari.
68 Reference was also made in argument to a number of other judgments including the decision of the Victorian Full Court in R v Coppel; Ex parte Viney Industries Pty Ltd,[25] in which it was held that an inspector appointed pursuant to s 148 of the Companies Act 1958 to investigate and report on the affairs of a company was not required to act judicially in relation to the investigation, and to the later decision of the High Court in Testro Bros Pty Ltd v Tait[26] in which it was held that the same was true of an inspector appointed under Pt VI, Div 4 of the Companies Act 1961. Those cases too are consistent with the view that a decision of the Commissioner to investigate a complaint as a disciplinary complaint does not sufficiently determine and is not sufficiently connected with a final decision affecting rights as to be susceptible to certiorari.
69 I allow that several of those cases predate Ridge v Baldwin[27] and, hence, the expansion of natural justice in to what Aronson describes as 'purely administrative territory'.[28] So, for example, a critical part of the analysis in Testro Bros was that, despite changes in the legislation between the 1958 Act and the 1961 Act which made the investigator's report admissible as evidence, Parliament could not be thought to have intended 'to make such a fundamental change as is suggested in the character of an investigation under Div 4 of the Act of 1961'[29] that an inspector would be required to act judicially. Contrastingly, the balance of more recent High Court authority is that certiorari will go if a decision is of one of the kinds delineated in Hot Holdings unless the remedy of certiorari is excluded expressly or by necessary implication.
70 But even so, I do not consider that the decision of the Commissioner to treat Mr Marsh's complaint as a disciplinary complaint for the purposes of ss 4.4.7 and 4.4.9 affected the appellant's rights in a legal sense. All it meant was that an investigation of the complaint would be carried out which, depending upon the result of the investigation, might lead to the Commissioner making a further determination under s 4.4.13 to apply to the Tribunal.[30] Nor in my view could it properly be said that the Commissioner's determination to treat the complaint as a disciplinary complaint for the purposes of ss 4.4.7 or 4.4.9 sufficiently determined or was sufficiently connected with a decision that affects rights as to come within the second class of case identified in Hot Holdings. Unlike the administrative decision in that case (which was bound to have a discernible legal effect upon a subsequent exercise of ministerial discretion bearing upon legal rights), a decision of the Commissioner to investigate a complaint as a disciplinary complaint does not have any discernible effect upon a decision of the Tribunal upon application later made under s 4.4.13 of the Act.
71 No doubt a decision by the Commissioner to treat a complaint as a disciplinary complaint and to investigate it as such or to refer it for investigation by the Institute enlivens the investigative powers of the Commissioner and the Institute, including powers to compel the production of documents and explanations. In that limited sense it may be said that such a decision is one which satisfies a condition precedent to the exercise of power which may in turn affect rights or otherwise give rise to legal consequences.[31] But that is not sufficient to attract certiorari. It does not necessarily follow from the Commissioner's decision to investigate or refer that compulsive powers will be invoked. It is conceivable that an examination could be carried out without any reference to the subject of the complaint or alternatively by means of interview without any compulsion.
72 Of course, so to say does not mean that a solicitor in the position of the appellant is necessarily devoid of a remedy. As was explained in Ainsworth v Criminal Justice Commission:[32]**
It does not follow that, because mandamus and certiorari are inapplicable, the appellants must leave this Court without remedy. The law with respect to procedural fairness has developed in spite of the technical aspects of the prerogative writs. Moreover, had the appellants had advance notice of the Commission's intention to report adversely, its failure to observe the requirements of procedural fairness would have entitled them to relief by way of prohibition[33] preventing it from reporting adversely without first giving them an opportunity to answer the matters put against them and to put submissions as to findings or recommendations that might be made.[34] Instead, the report has been made and delivered in accordance with s 2.18 of the Act. And, although it had no legal effect or consequence, it had the practical effect of blackening the appellants' reputations. Prima facie, at least, these matters suggest that the appellants are entitled to declaratory relief of the kind granted in Chief Constable v Evans.[35]
Nevertheless, I agree with the judge that the Commissioner's decision was so essentially procedural and not substantive as not to be susceptible to certioriari_._
**73 During argument, counsel for the appellant sought leave to add to the grounds of appeal that the appellant had a right to be heard before the Commissioner determined to classify the complaint as a disciplinary complaint and to refer it to the Institute for investigation. The point was not argued below and for that reason would not ordinarily be entertained on appeal. But since it involves a question of some general importance, and the respondents did not suggest that they would be embarrassed in meeting the point at short notice, we granted leave to amend.
74 Since Kioa v West,[36] the common law of Australia has recognised a general duty to act fairly in the sense of according procedural fairness in the making of administrative decisions which affect rights, interests and legitimate expectations.[37] That right is subject to contrary statutory intention but authority is clear that an intention to exclude natural justice must be plainly evident in the words of the statute. 'Such an intention cannot be gleaned from 'indirect references, uncertain inferences or equivocal considerations'.[38] It requires a 'clear manifestation'[39] or 'plain words of necessary intendment',[40] and it cannot be inferred from the presence in a statute of rights which are commensurate with only some of the rules of natural justice.[41] Furthermore, as the majority of the High Court explained in Ainsworth,[42] and reiterated in Hot Holdings, the law with respect to procedural fairness has developed in spite of the technical aspects of the prerogative writs such that, even if certiorari were not available, declaratory and injunctive relief might still go.[43]
75 Consequently, as has been seen, in Ainsworth the High Court held that the appellants had a right to be heard before the publication of a report of the Criminal Justice Commission as to the suitability of the appellants to be involved in the supply and manufacture of poker machines. Certiorari was not available, because the Commission had no power to implement its recommendations. But it was enough to attract the right to be heard that the Commission's report was likely adversely to affect the appellant's business or commercial reputation.
76 Similarly, in Annetts v McCann,[44] the High Court held that the parents of a deceased boy had a right to be heard by a coroner inquiring into the boy's death, including a right to address on the evidence. It was enough to attract the right to be heard that the applicants had a legitimate expectation that the coroner would not make a finding adverse to their son without first giving them an opportunity to be heard in opposition to the finding, and because the interests which they represented included the protection of the reputation of their deceased son.
77 In Rees v Crane[45] the Privy Council held that despite the unavailability of certiorari a judge of the High Court of Trinidad and Tobago had a right to be heard before a commission could make a determination as to whether there was sufficient cause to warrant investigation of his removal from office and his suspension on full pay pending the investigation. Although the judge would later have had a right to be heard in the course of the investigation, their Lordships held that a right to be heard arose at the earlier stage because the seriousness of the allegations and suspicions raised by the decision to suspend him would not necessarily be overcome by subsequent revocation of the suspension.
78 There is, however, a parallel body of authority which recognises that a preliminary decision which forms part of a broader decision making process will not attract the right to be heard if an opportunity for adequate hearing is available in later stages of the process.[46] Indeed it was referred to in Ainsworth as follows:**
It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if "the decision-making process, viewed in its entirety, entails procedural fairness''.[47]
Counsel for the respondents argued strongly that it is that latter principle which is determinative in this case.
79 In Cornall v AB (A Solicitor),[48] the Appeal Division considered the application of the principle to a decision by the Secretary of the Institute under s 38Q of the Legal Profession Practice Act 1958[49] to refer a matter to the Registrar of the Solicitors' Board or to the board itself, if 'of opinion that there appears to have been misconduct or a standards breach'. It was held that the principle applied because the Secretary's function under s 38Q was simply to form an opinion as to whether there was an arguable case of sufficient strength to sustain a conviction or which would justify the imposition of monetary penalties or other sanctions by a disciplinary or other judicial or quasi-judicial tribunal, and therefore in effect that it was pointless to accord a right to be heard. The court said that:
Where the function of going forward with the prosecution or charge does not involve more than satisfaction as to facts sufficient to form a prima facie case, there is little practical merit in providing to a person so charge a further opportunity to make submission or adduce facts to an investigator who is not essentially the fact-finding tribunal.[50]
**80 Cornall v AB also distinguished Annetts (and Ainsworth, Rees v Cranes and Johns) on the basis that those were cases 'where the outcome of the investigation and the recommendations made or opinions formed by the investigators were either final in the process thereby undertaken or led to immediate consequences of such importance to the individual investigated that the investigating body was obliged to afford procedural fairness'.[51] The Court reasoned that, apart from such 'special cases', the general principle (which was identified as deriving from Twist v Randwick Municipal Council[52] and Medical Board of Queensland v Byrne[53]) was that there is no obligation to accord procedural fairness at a preliminary or administrative stage of an investigation if, looking at the procedure in its entirety, the person to be affected has a fair and complete right to put his case. It was held that since the solicitor would later have a chance to put his case before the Board, he did not have a right to be heard by the Secretary.
81 With respect, some of that reasoning may be open to question. For example, it is not clear why Annetts or Ainsworth or Johns should be thought of as 'special cases'. Although all cases turn on their own facts, the principles for which Annetts and Ainsworth and Johns now stand as authority were expressed in terms of general application. It is also not clear why the solicitor in Cornall v AB should be thought of as any less affected by the actions of the Secretary than was Mr Johns affected by the decision of the Australian Securities and Investments Commission to disclose his transcripts; or that the reputation of the solicitor in Cornall v AB was any less put at risk by the actions of the Secretary than the reputation of the Annetts family was put at risk by the actions of the coroner. It may be observed too that Twist and the Medical Board of Queensland substantially predated Kioa v West and the body of principle which has developed in its wake.
82 On the other hand, there is no reason to doubt the conclusion in Cornall v AB that the requirements of natural justice may be satisfied if 'the decision-making process, viewed in its entirety, entails procedural fairness'. Plainly, there was a distinction between the facts in Cornall v AB and those in Ainsworth. As Aronson puts it, 'the very purpose of the investigation [in Cornall v AB] was to determine whether there should be a further hearing or some other action and a decision adverse to the respondent would necessarily be followed by a hearing'.[54] Further, as the court in Cornall v AB were careful to observe, the only decision of the secretary there in question was a decision to refer the matter for quasi-judicial determination. Furthermore, as was said, it was easy to see that in considering the whole process whereby matters were referred to the Registrar of The Solicitors' Board, there was intended to be an ample opportunity for the solicitor to present his case at the hearings prescribed by the legislature.[55] Other things being equal, therefore, I would respectfully follow Cornall v AB in the determination of this case.
83 There are, however, two differences between the scheme of the 1958 legislation and that of the 2004 Act which, in my view, point to a different result. First, as has been noted, s 4.2.8 of the 2004 Act expressly provides that the Commissioner must give the solicitor written notice of the complaint and details of the nature of the complaint 'as soon as practicable after the complaint is made.' Secondly, s 4.2.10 expressly provides that the Commissioner may dismiss a complaint if the complaint is vexatious, misconceived, frivolous or lacking in substance or, in the case of a disciplinary complaint, if the Commissioner having considered the complaint forms the view that the complaint requires no further investigation. Under the 1958 Act, s 38Q(2) provided only that the Secretary upon receiving a complaint may give notice of the complaint to the solicitor and s 38Q(5) provided that where, after completing the investigation and considering any explanation made by a solicitor, the Secretary was of opinion that there appeared to be a breach of standards, the Secretary may refer the matter to a Registrar's hearing or to the Board or exercise powers of suspension and cancellation provided for in s 84.
84 In Cornall v AB it was argued on behalf of the solicitor that the provision in s 38Q(5) for formation of the Secretary's opinion after considering any explanation made by a solicitor implied a right to be heard at the outset of the investigation and throughout it in respect of all matters coming before the Secretary in the course of the investigation. The court rejected that submission on the basis that:**
Subs (5) refers back to the procedure described in subs(2) of s38Q which gives power to the secretary to take certain steps in the course of his investigation. That subsection in clearly permissive terms enables the secretary to cause a solicitor to be served with a written statement of the nature of the misconduct and to require the solicitor to give an explanation. It likewise permits the secretary to require production of certain documents and even, but with approval of a member of the Law Institute Council, to require the solicitor to attend before him to give an explanation, as well as to obtain other reports and make other investigations as are necessary to determine whether further action should be taken. It is because the secretary has the power to require a solicitor to give an explanation that subs(5) refers explicitly to that explanation, but it is not intended, as was argued, that it requires further explanations to be sought at every relevant stage up to the point when the secretary forms his opinion to refer a matter for hearing.
It is not necessary for the purposes of this judgment to decide whether that which is apparently permissive in para. (a) of subs. (2), namely a power to require a solicitor to give and explanation, ought ordinarily to be treated as part of the proper and necessary process for reaching an opinion pursuant to subs. (5). Nor is it necessary to reach any conclusion as to whether a solicitor may complain as to the failure to seek any explanation as to a complainant's allegation. As would appear from what we have already said, our inclination would be to consider the disciplinary process as a whole and to see that as providing more than sufficient procedural fairness at the hearing stage.[56]
**85 Now, however, because the Commissioner is compelled by s 4.2.8 of the 2004 Act to give notice of the complaint to the solicitor as soon as practicable after receipt, and to make a preliminary decision whether to dismiss the complaint summarily before going further with the investigation, it appears to me that the statute evinces an intention that the Commissioner should give notice of a complaint to the solicitor more or less immediately after receipt, and then take into account anything about the complaint which the solicitor may wish to submit, before determining whether to dismiss the complaint summarily or to go on to investigate it further or to refer it to the Institute for investigation. Otherwise, why provide, as s 4.2.8 so clearly does provide, that the Commissioner must notify the solicitor of the complaint as soon as practicable after receipt?
86 As has been seen, the essence of the reasoning of the court Cornall v AB was that, because the function of the Secretary under the 1958 legislation did not involve any more than satisfaction as to facts sufficient to form a prima facie case, there was little practical merit in providing the solicitor with an opportunity to make submissions or adduce facts. The solicitor's right to natural justice was said to be adequately protected by his right to be heard before the tribunal which would decide the charge.[57] Now, however, the position under the 2004 Act appears to be such that the Commissioner has an independent obligation under s 4.2.10 to determine whether a complaint is to be dismissed summarily or not proceeded with further. If so, there is practical merit in providing the solicitor with an opportunity to make a submission or adduce facts to the Commissioner before the Commissioner determines that the complaint is a disciplinary complaint which needs be investigated. The right to be heard at that stage 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 or not proceed with it under s 4.2.10. And such a right to be heard is essentially different to any which the solicitor may later be accorded by the Institute or the Board.
87 In the result, it appears to me as a matter of statutory construction that the structure and operation of Part 4.2 imply an expectation that the Commissioner will give the solicitor a right to be heard at the outset before making the preliminary decision for which s 4.2.10 provides.[58] The position is analogous to Ainsworth and Johns.
88 Counsel for the respondents argued that the court should hesitate before reaching that conclusion because of what they said would be the detrimental effects on the efficiency of the administrative process set up by Chapter 4 of the Act. They argued that it would lead to delays, and the possible frustration of investigations, by court proceedings alleging failure by the Commissioner to hear or heed the submissions of solicitors against whom complaints have been made. In counsel's submission, it surely is not to be supposed that Parliament intended to make hostage to the vicissitudes of such judicial review proceedings a system of complaints investigation which was set up in order to make it 'accessible' and 'efficient'.
89 There is some force in those submissions. As the court observed in Cornall v AB,[59] the volume of complaints likely to be made against solicitors makes it necessary to keep in mind the efficiency of 'the administrative process'. Correspondingly, the likelihood of detrimental effects on efficiency of the administrative process militates against a conclusion that the proper stage for affording procedural fairness is at the stage when the Commissioner first receives a complaint and so before making a decision to investigate it as a disciplinary complaint. But as the court in Cornall v AB also observed, 'every statute must be looked at individually and there may be circumstances in which the language of a statute will require, for certain special reasons, some further opportunity to be heard.'[60] One may also doubt that recognition of the solicitor's right to be heard at that stage would result in the sorts of inefficiencies which the Commissioner fears. The content of natural justice is variable according to the circumstances of the case[61] 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.
90 In my view the appellant did have a right to be heard by the Commissioner before she determined to treat the complaint as a disciplinary complaint and to refer it to the Institute for investigation. Consequently, I consider that the Commissioner's failure to accord the appellant an opportunity to be heard at that point was a denial of natural justice.**
91 As earlier observed, I agree with the judge that Commissioner had reason to believe that the complaint was a disciplinary complaint. Having now heard all that is said on behalf of the appellant, I remain of that view. To that extent, there may not be much utility in referring the matter back to the Commissioner for further consideration. But it is possible that, if the appellant is allowed a right to be heard, he may persuade the Commissioner to dismiss the complaint or alternatively to conclude that it does not require to be investigated further. And like the question of whether there is reason to believe that the complaint is a disciplinary complaint, those are issues which must be decided by the Commissioner in the exercise of her
discretion.[62] It follows in my view that the appellant should be accorded a chance to put such appropriate submissions and facts before the Commissioner on those points as he may be advised.
**92 For those reasons, I would set aside the judgment below and in lieu thereof I would declare that the decision of the Commissioner to refer the complaint to the Institute for investigation was made in breach of the appellant's right to be heard and so therefore is invalid.
93 I would add for the avoidance of doubt, however, that such a declaration is made 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.**
94 I have had the benefit of reading in draft the reasons prepared by Nettle JA. I agree with his Honour's proposed disposition for the reasons he states.
**95 I have had the benefit of reading in draft the reasons prepared by Nettle JA. I agree that the appeal should be allowed for the reasons expressed by his Honour and I agree with the orders his Honour has proposed.
[1] It appears that this fax may have crossed with Wisewoulds' letter of 27 June 2006.
[4] Affidavit of Janet Marianne Cohen of 28 February 2007, AB 2 B11 at 3(a)-(g).
[5] Cf Hollis v Vabu [2001] HCA 44; (2001) 207 CLR 21.
[6] Owendale Pty Ltd v Anthony [1967] HCA 52; (1967) 117 CLR 539, 563 and 581 (McTiernan J), 587 and 598 (Taylor J) and 611 (Owen J); Barton v Croner Trading Pty Ltd [1984] FCA 195; (1984) 3 FCR 95, 110 (Bowen CJ and Beaumont and Wilcox JJ); Fyfe v Bondoni [1998] SASC 6860, [52] and [53] (Olsson J) and see also AB Oxford Cold Storage Co Pty Ltd v Arnott [2005] VSCA 111; (2005) 11 VR 298, 311 [34].
[7] Cf Wouters v Deputy Commissioner of Taxation (1988) 20 FCR 342, 349-50.
[8] Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223, 229-30.
[10] See and compare Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd [2008] HCA 9 [19] (Gleeson CJ, Hayne, Crennan and Kiefel JJ; cf [35]-[38] (Kirby J).
[11] See and compare Avon Downs Pty Ltd v Commissioner of Taxation (Cth) [1949] HCA 26; (1949) 78 CLR 353, 360; and Kolotex Hosiery (Australia) Pty Ltd v Federal Commissioner of Taxation [1975] HCA 5; (1975) 132 CLR 535, 567.
[12] Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369, 391; and see Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55, 67.
[13] Corporation of the City of Enfield v Development Assessment Commission and Anor [2000] HCA 5; (2000) 199 CLR 135, 148 [28]-[34].
[14] Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369, 391.
[15] _The Queen v The Judges of the Federal Court of Australia; Ex parte the WA National Football Leagu_e (Inc) [1979] HCA 6; (1979) 143 CLR 190, 202 (Barwick CJ); The Queen v The Judges of the Federal Court of Australia; Ex parte Pilkington ACT (Operations) Pty Ltd [1978] HCA 60; (1978) 142 CLR 113, 125 (Mason J); Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55, 67 (Speigelman CJ); but cf. Returned & Services League of Australia (Vic Branch) Inc v Liquor Licensing Commission [1999] VSCA 37; [1999] 2 VR 203, 211; S v Crimes Compensation Tribunal [1998] 1 VR 83, 90 (Phillips JA), and see Aronson, Dyer and Groves, Judicial Review of Administrative Action, (3rd ed), 232 where the authorities are analysed.
[16] Thompson v Goold & Co [1910] AC 409, 420; The Council of the City of Parramatta v Brickworks Ltd [1972] HCA 21; (1972) 128 CLR 1, 12.
[17] Wentworth Securities Ltd v Jones [1980] AC 74, 105-6; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, 423; R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681, 687-8.
[18] Which is to say an order in the nature of certiorari pursuant to O 56.
[19] Hot Holdings Pty Ltd v Creasy (1995) 185 CLR 149, 159 citing Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 580 (Mason CJ, Dawson, Toohey and Gaudron JJ) and 595 (Brennan J).
[21] Ibid 159 (Brennan CJ, Gaudron and Gummow JJ).
[30] Cf Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564.
[31] ACTU-Solo Enterprises (1976) 50 ALJR 471, 473; Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 161.
[32] [1992] HCA 10; (1995) 175 CLR 564, 581 (Mason CJ, Dawson, Toohey and Gaudron JJ).
[33] Reg v Liverpool Corporation, Ex parte Liverpool Taxi Fleet Operators' Association [1972] 2 QB 308-309, 309-310; Re Royal Commission on Thomas Case [1980] 1 NZLR 602, 615; see also Reg v Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation [1981] HCA 33; (1981) 147 CLR 471, 484 (Mason J); Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546.
[34] See Mahon [1984] AC, 821, 828, 829; Annetts (1990) 170 CLR, 603-604 (Mason CJ, Deane and McHugh JJ); 612 (Brennan J).
[38] Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408, 470 (McHugh, J) citing Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383, 396.
[39] Kioa v West [1985] HCA 81; (1935) 159 CLR 550, 584 (Mason J).
[40] Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, 598 (Mason CJ, Deane and McHugh JJ).
[41] Annetts v McCann, ibid; Re Minister; Ex parte Miah (2001) 206 CLR 57, 69 [30].
[42] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581 (Mason CJ, Dawson, Toohey and Gaudron JJ) and 564 (Brennan J).
[43] Ibid 581, citations omitted; Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408, 470 (McHugh J) and see Hot Holdings Pty Ltd v Creasy (1996) 185 CLR, 149, 159.
[46] Medical Board of Queensland v Byrne [1958] HCA 40; (1958) 100 CLR 582; Twist v The Council of the Municipality of Randwick [1976] HCA 58; (1976) 136 CLR 106; South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378; Edelsten v Health Insurance Commission (1990) 96 ALR 673; Director of Asset Confiscation Office v Nguyen (2002) A Crim R 531, 537, [29] (Ashley J); Aronson, 442;
[47] [1992] HCA 10; (1992) 175 CLR 564, 578 (Mason CJ and Dawson, Toohey and Gaudron JJ); see also Artinian v Commonwealth & Ors (1996) 43 ALD 235 handed up in the course of argument.
[49] Section 38Q the Secretary empowered the Secretary to decide in relation to conduct of a solicitor whether there was an appearance of misconduct or a standards breach involved and to the matter to the Registrar of the Solicitors' Board or to the Board itself for investigation. The Registrar or Board were bound to afford the solicitor a right to be heard before concluding the investigation.
[50] [1995] VICSC 7; [1995] 1 VR 372, 396; and see also Edelsten v Health Insurance Commission (1990) 96 ALR 673; Artinian v Commonwealth (1996) 43 ALD 235, 239 (Hill J); Director of the Asset Confiscation Office v Nguyen [2002] VSC 90; (2002) 128 A Crim R 531, 537 [29] (Ashley J); and see Aronson et al, Judicial Review of Administrative Action, 442.
[56] [1995] VICSC 7; [1995] 1 VR 372, 401.
[57] [1995] VICSC 7; [1995] 1 VR 372, 396.
[58] See and compare Murray v Legal Services Commissioner [1999] NSWCA 70; (1999) 46 NSWLR 224, 247 (Sheller JA).
[61] 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).
[62] Avon Downs Pty Ltd v Commissioner of Taxation (Cth) [1949] HCA 26; (1949) 78 CLR 353, 360; and Kolotex Hosiery (Australia) Pty Ltd v Federal Commissioner of Taxation [1975] HCA 5; (1975) 132 CLR 535, 567.
Byrne
Marles & Anor [2008] VSCA 78
(1938) 59 CLR 369
(2000) 199 CLR 135
(1967) 117 CLR 539
(1992) 175 CLR 564
(1999) 46 NSWLR 224
(2001) 207 CLR 21
(1984) 3 FCR 95
(2005) 11 VR 298
(1988) 20 FCR 342
(1949) 78 CLR 353
(1975) 132 CLR 535
(1999) 46 NSWLR 55
(1979) 143 CLR 190
(1978) 142 CLR 113
(1972) 128 CLR 1
(1987) 11 NSWLR 404
(1999) 46 NSWLR 681
(1995) 185 CLR 149
(1999) 170 CLR 321
(1990) 96 ALR 673
(1963) 109 CLR 353
(1976) 50 ALJR 471
(1996) 185 CLR 149
(1995) 175 CLR 564
(1981) 147 CLR 471
(1969) 122 CLR 546
(1985) 159 CLR 550
(1993) 178 CLR 408
(1958) 98 CLR 383
(1935) 159 CLR 550
(1990) 170 CLR 596
(2001) 206 CLR 57
(1958) 100 CLR 582
(1976) 136 CLR 106
(1987) 163 CLR 378
(1977) 137 CLR 487
(2003) 214 CLR 1