Contempt - Whether representation amounting to contempt - Whether open to VCAT to find appellant guilty of contempt on balance of probabilities - Witham v Holloway (1995) 183 CLR 525, applied.

Appeal - Practice and procedure - Whether leave required to appeal against disqualification order pursuant to s 2.2.6(5) of LPA - Hannebery v Legal Ombudsman [1998] VSCA 142, referred to. Legal Profession Act 2004, s 2.2.6(5).

1 Rudy Noel Frugtniet is not and never has been an Australian legal practitioner. Although he holds the degrees Bachelor of Laws and Master of Laws, he has been twice refused admission to practise, first in 2002 and then in 2005, because of his failure to disclose previous criminal charges and convictions at the time of seeking admission to practise.[1]

2 By application dated 19 November 2010, the Law Institute of Victoria Limited ('LIV'), in its capacity as delegate of the Legal Services Board ('the Board'), pursuant to an instrument of delegation dated 4 March 2010, applied to the Victorian Civil and Administrative Tribunal ('VCAT') for an order that Mr Frugtniet is a disqualified person for the purposes of Division 3 of Part 2.2 of the Legal Profession Act 2004 ('the Act'). The application was made pursuant to s 2.2.6(1)(b) of the Act on the grounds that Mr Frugtniet had been a party to an act or omission that, had he been an Australian legal practitioner, may have resulted in a charge being brought at VCAT.

3 Section 2.2.6 of the Act provides:

2.2.6 Order disqualifying persons

(1) The Board may apply to the Tribunal for an order that a person (other than an Australian legal practitioner) is a disqualified person for the purposes of this Division if the person-

(a) has been convicted of a relevant offence; or

(b) in the opinion of the Board has been a party to an act or omission that, if the person had been an Australian legal practitioner, may have resulted in a charge being brought in the Tribunal.

(2) The Tribunal may order that the person is a disqualified person for the purposes of this Division, for a specified period or indefinitely.

(3) If an order under this section specifies that a person is a disqualified person indefinitely, the person may apply to the Tribunal to have the order revoked.

(4) The Tribunal, on application under subsection (3), may revoke an order if it considers it appropriate to do so.

(5) A person against whom an order is made under this section may appeal to the Court of Appeal on a question of law.

4 On 21 December 2007, Mr Frugtniet applied to VCAT for an order for the summary dismissal of the application against him pursuant to s 75 of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act'). At the same time, he sought, in the alternative, an order striking out the application against him pursuant to s 77 of the VCAT Act on the grounds that the subject matter of the application would be more appropriately dealt with by way of criminal charges by a court.

5 Mr Frugtniet's preliminary applications and the LIV's application were heard over four days in February and March 2011 by Judge Jenkins, a vice president of VCAT. On 8 April 2011, her Honour made orders as follows:

(1) The preliminary application by the respondent [Mr Frugtniet] to strike out or dismiss the proceeding is dismissed.

(2) Pursuant to s 2.2.6(2) of the Legal Profession Act 2004 Rudy Noel Frugtniet is a disqualified person for the purposes of Division 3 of Part 2.2 of the Act for a period of three years.

(3) Pursuant to section 109(3)(d) of the Victorian Civil and Administrative Tribunal Act 1998, upon the Tribunal being satisfied that it is fair to do so, the respondent [Mr Frugtniet] is ordered to pay the costs of the applicant of this proceeding, including any reserve [sic] costs, on County Court Scale D, to be taxed in default of agreement. Certify for Senior and Junior Counsel.

6 By summons filed 4 May 2011, Mr Frugtniet sought leave to appeal to the Court of Appeal against those orders. On 3 June 2011, this Court ordered the application for leave to appeal 'be referred to a Bench of three judges and if leave is considered necessary, and if leave is granted, the Bench of three judges is to hear the appeal instanter'.[2] This is the hearing of the application for leave to appeal/appeal.

7 Section 2.2.6(5) of the Act provides that a person against whom an order is made under s 2.2.6 'may appeal to the Court of Appeal on a question of law'. There is no reference in s 2.2.6 (or any other provision of the Act) to any requirement for leave to be granted. While the general appeal provision contained in s 148 of the VCAT Act makes leave a requirement for an appeal on a question of law from VCAT, the right to appeal given by s 2.2.6(5) of the Act is not so qualified. In our opinion, Mr Frugtniet does not require leave.[3]

8 Counsel for the Board accepted that the better view of s 2.2.6(5) is that leave to appeal is not required, but he stressed the limited nature of an appeal under the section. As he observed, the scope of an appeal is informed by the terms of the legislation by which the right of appeal is created,[4] and for that reason it is significant that the terms of s 2.2.6(5) are in relevant respects very similar to those of s 148 of the VCAT Act. Section 148 has been held to create a right of appeal in the nature of judicial review.[5] The logical implication is that, like an appeal under s 148, an appeal under s 2.2.6(5) is in the nature of judicial review. As such, it stands in contrast to the more extensive kinds of appeal provided for in ss 2.2.8(3), 2.3.1(3), 3.4.47, 3.6.23, 3.6.24 and 5.6.4(3).

9 We accept those submissions. To adopt and adapt the language of the High Court in Osland,[6] s 2.2.6(5) confers 'judicial power to examine for legal error what has been done in an administrative tribunal';[7] and thus, despite the description of a proceeding under s 2.2.6(5) as an 'appeal', the section confers original as opposed to appellate jurisdiction 'in the nature of judicial review'.[8]

10 Mr Frugtniet's grounds of appeal were originally as follows:

(1) The Tribunal erred in dismissing the preliminary application of the applicant to dismiss the application or to transfer the application to an appropriate jurisdiction pursuant to s 75 or 77 of the Victorian Civil and Administrative Tribunal Act 1998.

(2) The Tribunal erred in failing to provide sufficient reasons for dismissing the application by the applicant to strike out or transfer the proceedings to an appropriate jurisdiction under s 75 or 77 of the Victorian Civil and Administrative Tribunal Act 1998.

(3) The Tribunal erred in the interpretation and construction which it placed on s 2.2.6(1)(b) of the Legal Profession Act 2004.

(4) The Tribunal erred in the application of Division 3 of Part 2.2 of the Legal Profession Act 2004 in circumstances where there was no factual allegation that the applicant had been or was likely to be 'an associate' as defined.

(5) The Tribunal erred in ordering the applicant to provide all witness statements he proposed to rely upon, including his own statement, prior to the close of the respondent's case before the Tribunal.

(6) The Tribunal erred by permitting the respondent to adduce additional evidence and call further witnesses following the filing of the applicant's witnesses statements.

(7) The Tribunal erred in failing to stay the proceedings upon hearing of the 'further instructions received by applicant's [respondent's] counsel' - namely, that there was a recommendation to prosecute the applicant involving the same alleged conduct in respect of acts and/or omissions now on foot, and that there was also a request that the material used in the proceedings be produced to the Legal Services Board.

(8) The Tribunal erred in finding that there was 'no decision to prosecute' in light of the plain terms of the respondent's counsel advising that 'The Board will be seeking to prosecute ...'.

(9) The Tribunal erred in failing to take into account the possible prejudice to the applicant arising from the use of the material already filed in the Tribunal and the risks of the use of such material in criminal proceedings in the future.

(10) The Tribunal erred in finding that the conduct of the applicant in the face of the Magistrate constituted a contempt of Court.

(11) The Tribunal erred in deciding the question of contempt at all in these proceedings.

(12) The Tribunal erred in finding that the Instrument of Delegation permitted the appointment of an investigator to investigate the offences specified or created by the Legal Professional Act 2004 in s 2.2.2(1) or s 2.2.3(1).

(13) [This ground was abandoned prior to the hearing of this appeal]

(14) The Tribunal erred in awarding costs under s 109(3)(d) of the Civil and Administrative Tribunal Act 1998, including any reserve (sic) costs, on County Court Scale D as amended, to be taxed in default of agreement and in certifying for Senior and Junior Counsel.

(15) The Tribunal erred when it accepted as a matter of law that neither the Legal Profession Act 2.2.2(f) or the Magistrates' Court Act 1989, 100(6)(b) provided an exemption so that a power of attorney under the Instruments Act 1958 might otherwise authorise a person to appear.

(16) The Tribunal erred in law in denying the applicant procedural fairness by not permitting further cross-examination of the respondent's witness Mr Lowry.

11 Some of those grounds were not pursued in oral argument. Counsel for Mr Frugtniet abandoned Grounds 1, 2, 5 to 9, 12, 13, 15 and 16 in the course of running and in effect put the appeal on the basis only of Grounds 3, 4, 10, 11 and 14.

12 The conduct relied upon by the LIV in support of its application pursuant to s 2.2.6 was an allegation that Mr Frugtniet lied to a barrister, Mr Steven Lowry, and he lied to a Magistrate, Mr Mellas, during the course of an appearance at the Magistrates' Court sitting at Werribee on 25 May 2010. On that day, Mr Lowry appeared at the Werribee court for the defendant in the matter of Vasta & Ors v Wyndam Swimming Club ('the Werribee Magistrates' Court matter'). The application listed that day was a strike out application by the defendant, Wyndham Swimming Club.

13 At VCAT, the LIV contended that Mr Frugtniet lied to Mr Lowry when they introduced themselves to each other at court on the morning of 25 May. It was alleged by the LIV that Mr Frugtniet misrepresented himself as a solicitor to Mr Lowry. However, Mr Frugtniet denied (and continues to deny) this allegation.

14 When the matter was called on, appearances were announced as follows:

MR LOWRY: If Your Honour pleases, I appear on behalf of the defendant/applicant in this matter.

MR FRUGTNIET: If Your Honour pleases, I appear for the plaintiffs in the matter.

15 There was then some discussion about the application. This discussion included the following exchange between Mr Frugtniet and the Magistrate:

HIS HONOUR: Mr Frugtniet, could you stand up, please?

MR FRUGTNIET: Yes.

HIS HONOUR: (Indistinct) letter, what firm do you work with?

MR FRUGTNIET: Sole practitioner, Your Honour.

HIS HONOUR: Sole practitioner?

MR FRUGTNIET: That's right.

HIS HONOUR: Letter dated 9 March 2010, addressed to ..., it seems to be a document that's common to the parties, isn't it?

MR FRUGTNIET: I'm not familiar, Your Honour, with the letter that you're referring to, but this is in the affidavit that's referred to at present.

HIS HONOUR: Yes. Your client's (sic) put on notice that the proceedings appear to fail to comply with the requirements of the Magistrates' Court Rules.

MR FRUGTNIET: Which paragraph, Your Honour?

...

MR FRUGTNIET: In terms of what Your Honour is referring to, I don't seem to be able to reference that, what my friend has given me.

...

MR FRUGTNIET: Your Honour, if I can just get some instructions? My instructions are, Your Honour, in that there was a waiting period ... .

16 During the course of the hearing at VCAT, Mr Frugtniet tendered a document headed 'General Power of Attorney' ('the power of attorney') signed by the plaintiffs in the Werribee Magistrates' Court proceeding. The power of attorney provided:

(1) We appoint Rudy Noel Frugtniet of ... to be our attorney.

(2) We authorise our attorney to present our case and to be spokesperson on our behalf in the interlocutory proceedings ... brought by ...

Wyndham Swimming Club ... before the Magistrates' Court at Werribee on 25 May 2010.

(3) We authorise our attorney to do on our behalf anything that we may lawfully authorise an attorney to do.

17 At VCAT, Mr Frugtniet gave evidence that the power of attorney was presented to the Registry at the Werribee Magistrates' Court on 25 May 2010, and that it was given a stamp by Mr David Christie, Registrar of the Magistrates' Court of Victoria. Additionally, Mr Frugtniet swore that he filed this document with the Magistrates' Court before the hearing on 25 May.

18 Mr Christie gave evidence, however, that he was not working at Werribee Magistrates' Court on 25 May 2010. No copy of the document was able to be located on the Magistrates' Court file produced to VCAT. Further, there was no record of the document on the computer printout of documents filed in the Werribee Magistrates' Court matter. Additionally, there was no reference to the power of attorney (or indeed any power of attorney) in the proceeding before the Magistrate.

Mr Frugtniet's complaints concerning the hearing before, and orders of, VCAT

19 Mr Frugtniet's complaints concerning the hearing before VCAT and the orders made by Judge Jenkins may be summarised as follows:

(a) under Grounds 3 and 4, a complaint concerning the proper construction of s 2.2.6 of the Act and the ability of the LIV to bring the proceeding against him having regard to both the terms of this section, the terms of the Instrument of Delegation and the terms of a policy document of the Board ('the Board policy document');

(b) under Grounds 10 and 11, a complaint that it was not open to the Tribunal, or alternatively that it was inappropriate for the Tribunal, to make a finding of contempt;

(c) under Ground 14, complaints concerning the making of the order for costs against Mr Frugtniet, and the terms of that order.

Grounds 3 and 4: The ability of the LIV to apply under s 2.2.6(1)(b)

20 In his written outline of submissions, Mr Frugtniet contended that:

Division 3 of Part 2.2. of the Legal Profession Act 2004 ('the Act') does not disclose any remedy that was relevant or available on the material alleged in the particulars asserted within the application made by the respondent [LIV]. The applicant has not nor was it suggested was likely to act as an 'associate' as defined in the Act.

21 In oral argument, counsel for Mr Frugtniet further submitted that, upon its proper construction, informed by the heading to Division 3 - 'Prohibition regarding associates' - and what counsel contended to be the legislative scheme of Part 2.2 of the Act, an order under s 2.2.6(1)(b) could only be made against an 'associate' as defined and, further or alternatively, only against a person if it were shown that, but for the order, it was probable the person would become an 'associate' as defined. It followed it was said that, since Mr Frugtniet was not an associate as defined and it was not shown to be probable that he would have become an associate in the absence of a disqualification order, the section was not engaged.

22 We reject those submissions. There is no reason to suppose that the operation of s 2.2.6 is limited to existing associates of law practices. According to the natural and ordinary meaning of the section, it applies to any person who has been convicted of a relevant offence or who, in the opinion of the Board (or its delegate) has been a party to an act or omission that, if that person had been an Australian legal practitioner, may have resulted in a charge being brought at VCAT. It does not detract from the natural and ordinary meaning of s 2.2.6 that s 2.2.7 provides that a disqualified person may not be a lay associate of a local legal practitioner without the Board's approval. The evident legislative purpose of s 2.2.6 is to provide protection against the possibility of an inappropriately disposed person acting as an associate and, to that end, to enable the Board to seek a disqualification order against a person regardless of whether or not he or she is an associate at the time of order.

23 The idea that the Board must first establish that, but for an order, it is probable the person would be an associate, is misplaced. So to require would necessitate reading in a large number of words which are not in the section, without any apparent necessity to do so,[9] and to ignore the realities that the Board is hardly likely to spend valuable time and resources seeking a disqualification order unless there is a point to the exercise and that the Tribunal would hardly be disposed to grant a disqualification order unless persuaded that it is likely to be utile. Contrary moreover to Mr Frugtniet's argument, the heading to Division 3 does not support the construction of s 2.2.6 for which he contended. Read in context, the heading is properly to be understood as an apposite short-hand description of the means of either prohibiting inappropriate persons continuing as associates or prophylactically preventing inappropriate persons becoming associates.

24 In further support of his submission that the LIV was not entitled to bring an application under s 2.2.6 against him, Mr Frugtniet relied upon the Board's Instrument of Delegation to the LIV. Paragraph 2 of the Instrument of delegation[10] relevantly provided:

1. Pursuant to section 6.2.19(1)(d) and clause 8.14 of schedule 2 of the Act, the Board hereby delegates to the LIV its functions duties and powers hereinafter specified, excluding those functions duties and powers insofar as they apply to persons who engage in practice solely as barristers, and subject to conditions specified herein:

Part 2.2 of the Act - Reservation of legal work and legal titles

Division 3 - Prohibitions regarding associates

25 Mr Frugtniet submitted that the line 'Division 3 - Prohibitions regarding associates' immediately above the reference to s 2.2.6(1) limited the delegation so that the LIV was only entitled to apply under s 2.2.6 in respect of lay associates.

26 That submission is without merit. The line 'Division 3 - Prohibitions regarding associates' is the heading found in the Act in respect of Division 3 of Part 2.2, in which s 2.2.6 is contained. In each case, in the Instrument of Delegation, where there is a reference to a section of the Act, the sections are grouped under the division headings contained in the Act. The setting out of the relevant division headings does not limit the operation of the Instrument of Delegation.

27 In oral argument, counsel for Mr Frugtniet put a further submission based on Condition 3 of the Instrument of Delegation and clauses 6 and 7 of the Board's Policy on seeking disqualification orders. Condition 3 of the Instrument of Delegation provided that:

The delegate is to exercise the functions duties and powers herein delegated in accordance with any applicable policy approved by the Board from time to time.

Clauses 6 and 7 of the Board's Compliance and Enforcement Policy - v1.0 provided that:

1. Pursuant to section 6.2.19 and clause 8.14 of Schedule 2 of the Act, the Board has delegated the following legislative functions to:

...

the Law Institute of Victoria to exercise in relation to local legal practitioners other than barristers:

...

apply for disqualification of lay associate under s 2.2.6

...

1. The Board, the CEO, Legal Services Commissioner employees working on Board functions, the Law Institute of Victoria and the Victorian Bar must be guided by this policy and any other applicable Board policies when performing relevant compliance and enforcement functions.

28 Counsel submitted that the combined effect of those provisions, and in particular the expression in clause 6 of the Policy: 'in relation to local legal practitioners other than barristers', was to limit the scope of the delegation to taking action against existing legal practitioners and existing lay associates of legal practitioners.

29 Those submissions are not persuasive either. The words 'in relation to' are words of potentially wide import,[11] of which the meaning is to be ascertained by reference to the nature and purpose of clause 6 in the context in which it appears.[12] Read in that context, they imply no greater limitation than that the powers for which they provide are to be confined to activities in relation to the solicitors' branch of the profession. Fairly read, the policy document merely notes the existence of delegations already made by the Board pursuant to the Act; and the statement that the Board has delegated the function of applying for disqualification of lay associates under s 2.2.6 is to be seen as no more than a statement of the effect of what has been delegated, together with the consequence provided for in s 2.2.7 of an order being made under s 2.2.6. Given the evident legislative purpose of preventing inappropriate persons from acting as associates of solicitors, it is unrealistic to suppose that Parliament intended to limit the scope of the delegation to taking action against existing associates of solicitors.

30 Moreover, to the extent that Condition 3 of the Instrument of Delegation required the Policy to be taken into account in the exercise of functions, duties or powers delegated by the Instrument of Delegation, the Policy referred to in Condition 3 was that set out in clauses 8-10 of the policy document. As we have observed, clause 6 merely purported to describe the functions the Board had already delegated. Clause 6 of the Policy document was not itself a policy, much less a policy approved by the Board within the meaning of Condition 3 of the Instrument of Delegation.

31 It follows that the complaint under this heading (which formed the basis of Mr Frugtniet's application for summary judgment under s 75 of the Act) must be rejected.

Grounds 10 and 11: The finding of contempt point

32 Under Ground 10 Mr Frugtniet argued that it was not open to VCAT to find that he was guilty of contempt of court unless satisfied of his guilt beyond reasonable doubt, and consequently that VCAT erred in finding guilt on the balance of probabilities.

33 We accept that submission. As the High Court held in Witham v Holloway,[13] all proceedings for contempt, whether civil or criminal, must realistically be seen as penal in nature and, therefore, the contempt must be proved beyond reasonable doubt. As it appears from VCAT's reasons for decision, VCAT decided the question of contempt on the balance of probabilities. By doing so it proceeded in error. Although, it might have been open to find that the contempt was established beyond reasonable doubt, VCAT did not undertake that assessment. The error in proceeding on the balance of probabilities should be taken to have vitiated the finding of contempt.

34 Admittedly, VCAT did not make any order that Mr Frugtniet was guilty of, or had committed, any contempt, and, as the LIV submitted, the contempt finding was superfluous to the reasoning on which VCAT based its order that Mr Frugtniet was a disqualified person. Nevertheless, so long as the contempt finding stands, it is capable of causing prejudice to Mr Frugtniet. In our view, that is sufficient reason in this context to warrant that it be declared a nullity.[14]

35 In the course of oral submissions, counsel for Mr Frugtniet put the argument against VCAT's costs orders on three bases. First, he submitted that VCAT erred in finding that there was no realistic prospect of Mr Frugtniet being prosecuted and erred in relation to costs by proceeding on that basis. Secondly, he argued that, even if VCAT were not in error in concluding on the basis of the evidence before it that there was not a realistic prospect of Mr Frugtniet being prosecuted, evidence had since come to light that at all relevant times a prosecution was contemplated and was in fact instituted shortly after the Tribunal handed down its decision.[15] In counsel's submission, that evidence should be received as fresh evidence[16] and, in view of the facts it discloses, the Tribunal's costs orders should be set aside. Thirdly, counsel contended, VCAT erred in the exercise of its discretion as to costs by proceeding upon the misconception that it had been established that Mr Frugtniet was guilty of contempt when that had not been established beyond reasonable doubt.

36 Possibly, there is some substance in some of those contentions. It is unnecessary, however, to reach a concluded view about them. As counsel for LIV very fairly conceded, VCAT made a further more fundamental error in relation to costs which plainly vitiated the costs orders and requires that they be set aside.

37 The LIV's application for costs before VCAT was put solely on the basis that, although the general rule under s 109 of the VCAT Act is that each party should bear its own costs of a proceeding,[17] it was open to VCAT in this case to make an order as to costs in favour of the LIV under s 109(3)(d), in view of the protective nature of the proceeding. Importantly, the LIV expressly disclaimed any suggestion that the proceeding was of such complexity as to warrant a costs order in favour of the Board.

38 As counsel for the LIV acknowledged before this court,[18] s 109(3)(d) refers to both the nature and complexity of a proceeding and consequently, in order to engage the provision it is necessary that VCAT be satisfied that both the nature and complexity of a proceeding be such as to warrant making a costs order. By having regard only to the nature of the proceeding and not also to the extent of its complexity, VCAT failed to direct itself to the requirements of the provision.

39 Of course, that does not mean that a costs order cannot be made under s 109(3)(d) unless a proceeding is complex. It is conceivable, although maybe unlikely, that the nature of a proceeding could be such that, despite any lack of complexity, a costs order was warranted. But before the order could be made VCAT would need to consider both the nature and complexity of the proceeding and be persuaded that, notwithstanding the lack of complexity, the order was warranted. In this case, VCAT failed to undertake that exercise.

40 The requirement to do so transcends mere captiousness. It is an important exercise because, although it is ultimately a matter for the exercise of discretion, proceedings of which the nature alone is sufficient to warrant making a costs order are likely to be limited. In this case, for example, it is open to question why the mere fact that the proceeding was protective was thought to be sufficient. VCAT did not give any reasons for reaching that conclusion. If, however, VCAT had been cognisant of the need to consider both nature and complexity, it is surely possible that it would have come to a different conclusion.

41 Finally, we add for the sake of completeness that it is difficult to see on what basis VCAT could have made the order for costs in the light of s 58(2) and clause 46D of Schedule 1 of the VCAT Act. Section 58(2) provides for variations of the sections in Part 4 of the VCAT Act. Section 109 is contained within Part 4. Clause 46D of Schedule 1 provides for a variation of s 109 in respect of certain proceedings under Divisions 4 and 5 of Part 4.4 of the Legal Profession Act. In substance, clause 46D provides that in such proceedings, the costs are in the discretion of VCAT. VCAT's finding under s 109(3)(d) that the nature of the proceeding made it fair to order costs against Mr Frugtniet appears to ignore that the Parliament, having considered the question, did not determine that the nature of an application under s 2.2.6 justified a departure from the ordinary position set out in s 109(1) that each party is to bear their own costs.

43 In the result, we shall uphold Grounds 10, 11 and 14 and allow the appeal, in part, on that basis. We shall set aside the Tribunal's orders as to costs and declare the Tribunal's finding of contempt to be null and void. Otherwise, we shall dismiss the appeal.

44 On 6 August 2012, a week after the hearing of the appeal and after we had prepared the reasons which are set out above, the appellant sent an email to the Registry in which he stated that he had withdrawn his instructions to the senior counsel and solicitors who had represented him on the appeal, and enclosing 18 typed pages of 'Further Submissions' said to be directed to:

... the grounds of appeal and by implication certain grounds of appeal that were inadvertently abandoned by Counsel on the premise that the jurisdictional facts argued if upheld would not necessitate the court's consideration of other grounds which I accept, but I am unable to accede to in the event that such jurisdictional facts were not upheld.

45 We have not had regard to these 'further submissions'. They should not have been forwarded to the Registry. Neither the Rules of Court nor the applicable Practice Statements gave any authority for them to be forwarded without leave, and the court has not been asked to give or given leave for them to be filed. Moreover, if leave had been sought, we would have refused it, because, if we were to give leave, we would then have to give leave to the respondents to file replies, with consequent delay in the business of the court.

46 As has been said repeatedly in the High Court[19] and in this court,[20] the idea that parties may, without leave, file supplementary written submissions after the conclusion of oral argument is misconceived. The time and place to present argument, whether wholly oral or as supplemented by written submissions, is the hearing of the appeal. Once the hearing of an appeal has concluded it is only in very exceptional circumstances, if at all, that the court will later give leave to a party to supplement submissions. Certainly, if a new point arises at the hearing of an appeal, the court may give leave to the parties to file further written submissions within a short period of the hearing. But parties to an appeal must understand that they have no legal right to continue putting in submissions to the court after the hearing of an appeal; and ordinarily, once a hearing has concluded, the workload of the court and the delay in the court's business that would be associated with a fresh round of submissions make it impossible for the court to give leave to file further submissions.

47 It appears that the practice in the Federal Court may be different[21] but, in this court, as in the High Court, as McHugh J said in Eastman v Director of Public Prosecutions (ACT):[22]

Efficiency requires that the despatch of the court's business not be delayed by further submissions reflecting the afterthoughts of a party or - as perhaps is the case in this appeal - some dissatisfaction with the arguments of the party's counsel.

[1] Frugtniet v Board of Examiners [2002] VSC 140 (Pagone J); Frugtniet v Board of Examiners [2005] VSC 332 (Gillard J).

[2] Frugtniet v Law Institute of Victoria Limited [2011] VSCA 176 (Tate JA and Almond AJA).

[3] Cf Hannebery v Legal Ombudsman [1998] VSCA 142, [14] and [28], wherein Tadgell JA said in respect of s 170(1) of the Legal Practice Act 1996 which provided for an appeal to the Court of Appeal on a question of law from certain orders under that Act:

'This provision is to be construed as granting a right of appeal from an order of the Tribunal on a question of law which is involved in the Tribunal's order or, perhaps more accurately, which is involved in the decision giving rise to the order: Transport Accident Commission v Hoffman [1989] VicRp 18; [1989] VR 197, at 199. ... Section 170(1) no doubt authorises also a challenge to the foundation for [such] orders, namely ... [an earlier decision]. Any such challenge is limited, however, to one on a question of law that is involved in the decision.

I would dismiss the appeal. I have no need, therefore, by seeking to elaborate upon the laconic s 170(1) of the Legal Practice Act, to divine what the powers of this Court might be in the event of a successful appeal brought under that provision. The contrast between it on the one hand and, for example, the usefully explicit provisions of s 52(5) of the Administrative Appeals Tribunal Act 1984 (now repealed) and s 148(7) of the Victorian Civil and Administrative Tribunal Act 1998 on the other, is stark and merits, I suggest legislative attention.'

Now more than 13 years after this Court's decision in Hannebery, the same may be said in respect of s 2.2.6(5). See further B v Victorian Lawyers RPA Limited [2002] VSCA 204; (2002) 6 VR 642, 651 [25].

[4] Applicants A1 and A2 v Brouwer [2007] VSCA 139; (2007) 16 VR 612, 614 [6] (Maxwell P and Neave and Redlich JJA); Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124, 129 [2].

[5] Cf Osland v Secretary of Justice [2010] HCA 24; (2010) 241 CLR 320, 331-2 [18]-[20].

[7] Citing Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72, 79 [15].

[9] Thompson v Goold [1910] AC 409, 420; Marshall v Watson [1972] HCA 27; (1972) 124 CLR 640, 649; cf Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292, 302; Pearce & Geddes, Statutory Interpretation in Australia, (Lexis Asia Pacific) 7th ed 2011, [2.32].

[11] Smith v Federal Commissioner of Taxation [1987] HCA 48; (1988) 164 CLR 513, 533 (Toohey J).

[12] PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301, 313.

[13] (1995) 183 CLR 525, 534.

[14] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 393 [100]; Aronson, Dyer and Groves, Judicial Review of Administrative Action, (Thomson Reuters, 4th ed. 2009) [10.100].

[15] Albeit that it was later discontinued.

[16] See, eg, R v AHK [2001] VSCA 220, [8] (Winneke P); R v Kucma [2005] VSCA 58; (2005) 11 VR 472; R v DD [2005] VSCA 308 (Charles JA); Coleman v R [2011] VSCA 301, [23]-[24] (Buchanan JA).

[17] Section 109 provides as follows:

109 Power to award costs

(1) Subject to this Division, each party is to bear their own costs in the proceeding.

(2) At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.

(3) The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to -

(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as -

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(iv) causing an adjournment;

(v) attempting to deceive another party or the Tribunal;

(vi) vexatiously conducting the proceeding;

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

(c) the relative strengths of the claims made by each of the in fact or law;

(d) the nature and complexity of the proceeding;

(e) any other matter the Tribunal considers relevant.

(4) If the Tribunal considers that the representative of a party, rather than the party, is responsible for conduct described in subsection (3)(a) or (b), the Tribunal may order that the representative in his or her own capacity compensate another party for any costs incurred unnecessarily.

(5) Before making an order under subsection (4), the Tribunal must give the representative a reasonable opportunity to be heard.

(6) If the Tribunal makes an order for costs before the end of a proceeding, the Tribunal may require that the order be complied with before it continues with the proceeding.

[18] Different counsel appeared for LIV before the Tribunal.

[19] Carr v Finance Corp of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246, 258 (Mason J).

[20] R v Zhanu Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220, 221 [2]-[4]; R v Theophanous [2003] VSCA 78; (2003) 141 A Crim R 216, 286 [204].

[21] Jackson v Conway [2000] FCA 1530, [29] (Branson J); Spalla v St George Motor Finance Ltd (No 3) [2004] FCA 554, [32] (Ryan J).

[22] [2003] HCA 28; (2003) 214 CLR 318, 330 [12].