Garde-Wilson v Legal Services Board [2008] VSCA 43

Court of Appeal (Vic)|2008-03-19|Before: BUCHANAN, NETTLE and DODDS-STREETON JJA

FIRST REVISION 3/4/08, NEW [95] INSERTED AND CONSEQUENTIAL PARAGRAPH RENUMBERING

STATUTORY CONSTRUCTION - Legal Profession Act 2004 (Vic), ss 2.4.5, 2.4.12, - Whether Legal Services Board lacks power to grant or refuse renewal of lawyer's local practising certificate after expiration of prescribed period for determination.

ADMINISTRATIVE LAW - Refusal of application for judicial review of refusal to renew lawyer's local practising certificate because review by Victorian Civil and Administrative Tribunal an adequate alternative remedy - Alleged breach of natural justice - Discretion miscarried.

ADMINISTRATIVE LAW - Interpretation of Legislation Act 1984 (Vic), s 42A - Legal Services Board retained power to determine whether to renew a solicitor's practising certificate notwithstanding its delegation of that power to the Law Institute.

**1 In my opinion the judge below erred in concluding that in this case the existence of a right to review the decision of the Legal Services Board ('the Board') in the Victorian Civil and Administrative Tribunal precluded judicial review of the Board's decision in the Supreme Court.

2 As Dodds-Streeton JA has explained, the appellant was entitled to, but may have been denied, a fair hearing by the Board. While the public interest in determining disputes promptly, without the expense and delay of duplication, may on occasion warrant the denial of prerogative relief where an alternative remedy exists[1], I agree with Nettle JA that a decision depriving a solicitor of her livelihood without giving her a fair hearing should not be allowed to stand.

3 Accordingly, I would allow the appeal in part and set aside the answer to the second preliminary question given by the judge below. In lieu thereof the answer should be 'No'. The proceeding should be remitted to the trial division of the Supreme Court to determine the issues, including the question whether the appellant was denied natural justice.**

**4 I have had the advantage of reading in draft the reasons for judgment of Dodds-Streeton JA and I agree with her Honour that the appeal should be allowed and disposed of as she proposes.

5 I wish to add my own reasons, however, on the principal question of whether the judge erred in the exercise of discretion in withholding certiorari because of the appellant's right of review before the Victorian Civil and Administrative Tribunal ('VCAT').**

6 Counsel for the appellant prayed in aid the following passage from the judgment of Megarry J in Leary v National Union of Vehicle Builders:[2]

If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right to appeal to another body from the effective decision to expel him. I cannot think that natural justice is satisfied by a process whereby an unfair trial, though not resulting in a valid expulsion, will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would be a powerful result to be achieved by what in law is a mere nullity; and it is no mere triviality that might be justified on the ground that natural justice does not mean perfect justice. As a general rule, at all events, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellant body.

7 But that must be read as subject to what the Privy Council said later in Calvin v Carr:[3]

In their Lordships' opinion this is too broadly stated. It affirms a principle which may be found correct in a category of cases: these may very well include trade union cases, where movement solidarity and dislike of the rebel, or renegade, may make it difficult for appeals to be conducted in an atmosphere of detached impartiality and so make a fair trial at the first - probably branch - level an essential condition of justice. But to seek to apply it generally overlooks, in the Lordships' respectful opinion both the existence of the first category, and the possibility that, intermediately, the conclusion to be reached, on the rules and on the contractual context, is that those who have joined in an organisation, or contract, should be taken to have agree to accept what in the end is a fair decision, notwithstanding some initial defect.

**8 Further, as authority makes clear, the existence, and a fortiori the exercise, of a statutory right of appeal or review before a tribunal with jurisdiction to determine all questions of fact and law within the remit of the original decision maker is a powerful discretionary consideration against the grant of prerogative relief.[4]

9 In this case, the VCAT has all the powers necessary to conduct a full de novo hearing and to deal finally with the merits of the case. Furthermore, as appears in Dodds-Streeton JA's reasons, the appellant has filed an application for review before the VCAT[5] as well as seeking prerogative relief. There is also a public interest in having disputes of this kind dealt with promptly and as cheaply as possible in the VCAT without unnecessary judicial intervention. These are all factors which point strongly against the grant of prerogative relief.

10 There are cases, however, and in my view this is one of them, where the court should not tolerate serious departures from the rules of natural justice. If there were a denial of natural justice of the kind alleged, it was a serious denial of natural justice. And if it occurred in this case, it would create a real sense of disquiet as to what might occur in other cases. As Kirby P said in Macksville & District Hospital v Mayze,[6] that may be reason in itself to warrant intervention:**

This provides a reason, particularly in cases of serious departure from the rules of natural justice, for the courts to offer the salutary remedies of prerogative or declaratory relief, to uphold the entitlement of persons in our society to look to statutory bodies to comply with their charter, including by the provision of natural justice. This is what Parliament may be taken to have intended. The courts should therefore not too lightly ignore infractions, committing parties to the expense, delay and inconvenience of an appeal where a serious injustice may have been done at first instance. Unless corrected, such injustices may persist. They may recur in the case of others who may simply accept them.

Particularly is the procedure of prerogative or declaratory relief appropriate where there is a risk that the appellate tribunal will not be able to remedy immediately and fully a damaging and adverse decision...

11 Moreover, and despite the legislative resolve to commit the regulation of the legal profession to statutory boards and administrative tribunals, the court retains a vital interest in the fitness and propriety of those who practise before it.[7] It knows that there may be nothing more damaging to the reputation of a solicitor than a determination that he or she is no longer a fit and proper person to practise. The

court requires that a determination of that kind not be made unlawfully or unfairly. If it is made unfairly, [8] as it is alleged it was in this case, then in my view certiorari should go.

12 By a notice of appeal dated 9 July 2007, the appellant, Zarah Garde-Wilson, a solicitor engaged in the practice of criminal law, appeals against the judgment of a judge of the trial division made on 26 June 2006, in which his Honour:

(a) rejected her claim that because the respondent, the Legal Services Board ('Board'), failed to determine her application to renew her practising certificate within the 60 day period from receipt of her application, as specified by s 2.4.12(2) of the Legal Profession Act 2004 ('the Act'), its subsequent refusal to renew the practising certificate was void and of no effect;

(b) dismissed the appellant's application for judicial review of the Board's decision to refuse her application for renewal of the practising certificate; and

(c) dismissed the appellant's appeal from the decision of a Master refusing leave to amend her application for judicial review by adding as a ground that the Board's refusal to renew her certificate was beyond power because, at the time, the Law Institute of Victoria ('Institute'), was exercising the same powers pursuant to a valid delegation by the Board.

13 By a notice of contention, the respondent contended that the proposed amendment referred to in paragraph 1(c) should have been refused on the ground that it was futile.

**14 The appellant's de facto husband, Lewis Caine, was murdered on or about 8 May 2004. The appellant subsequently, at risk to her own safety, provided confidential information to assist the police investigation of the murder. In consequence, two persons, Messrs Faure and Goussis, described by the judge as 'dangerous criminals', were arrested and charged with the murder of Mr Caine. The appellant applied, unsuccessfully, for admission to the Witness Protection Program. The police nevertheless evinced concern for her safety. Contrary to her expectations, the appellant was called to give evidence at the trial of the accused persons. She tried to discuss the matter with police, but was unsuccessful. She answered the summons to give evidence, but on entering the witness box, refused to answer questions. In consequence, she was charged with contempt. On 9 November 2005, Harper J found the appellant guilty of contempt due to her refusal to answer questions, on the basis that, although she had a genuine fear of reprisal, she had failed to show the firmness of mind expected of an ordinary person. Following a hearing on sentence, Harper J held that a legal practitioner had [a duty] to respond to a fear of harm in answering questions on oath 'above that required of most others.' He imposed no further penalty on the appellant, however, due to a number of mitigating factors. The Crown appealed against Harper J's failure to impose a gaol sentence for the contempt. The appellant cross-appealed against the conviction. The Crown appeal was subsequently dismissed. The appellant abandoned her appeal against conviction.

15 On 8 November 2005, the appellant was charged with unlawful possession of a handgun and giving false evidence at a criminal investigation hearing. Those charges have not yet been heard.

16 By an instrument of delegation dated 14 December 2005, the Board delegated to the Institute its functions and powers in respect, inter alia, of the grant or renewal of local practising certificates.

17 By an application dated 5 April 2006, the appellant applied for the renewal of her local practising certificate for the 2006/2007 financial year pursuant to s 2.4 of the Act. The application was received by the Institute on 2 May 2006. Before the Institute had determined the application, on 7 December 2006, the Board, without revoking the delegation, decided to refuse the appellant's application for renewal on the ground that she was not a fit and proper person, as required by s 2.4.7(2)(b) of the Act.

18 By an application to the Victorian Civil and Administrative Tribunal ('VCAT') dated 22 December 2006, the appellant applied for a review at the Board's determination to refuse her application for renewal. She sought that the determination be set aside.

19 By an originating motion dated 13 February 2007, the appellant sought a declaration that the Board's decision was void and of no effect and an order of, or in the nature of, certiorari quashing it. The grounds relied upon in the originating motion included want of jurisdiction, denial of procedural fairness and error on the face of the record.

20 By a summons dated 4 April 2007, the appellant sought leave to amend the originating motion by adding a ground that the Board had acted beyond power because, at the time of its decision, the Institute was in the course of exercising the same power pursuant to a valid and unrevoked delegation from the Board.

21 On 11 April 2007, a Master dismissed the appellant's summons and made directions for the further conduct of the proceeding. The Master stated two questions for preliminary determination pursuant to rule 47.04 of the Supreme Court (General Civil Procedure) Rules 2005.

Whether the Defendant's decision of 7 December 2006 to refuse to renew the Plaintiff's local practising certificate is void and of no legal effect on the ground that the Decision was not made within 60 days after receiving her application for renewal of her practising certificate.

Whether this proceeding ought to be dismissed on the ground that each of the grounds for review set-out in the Plaintiff's Originating Motion dated 13 February 2007 will necessarily be addressed by virtue of the fact that the Victorian Civil and Administrative Tribunal will be reviewing the Decision.

**23 By a Notice of Appeal dated 16 April 2007, the appellant appealed from the Master's dismissal of the summons seeking leave to amend the originating motion.

24 The hearing on the preliminary questions took place on 14 May and 13 and 14 June 2007 before a judge of the trial division. The appellant contended that the Board's decision to refuse renewal of her practising certificate was void, because it was made after the 60 day period from receipt of her application prescribed by s 2.4.12(2) of the Act and that, in consequence, by s 2.4.5(3), the certificate continued in force.

25 The respondent contended that the appellant's originating motion seeking judicial review of the Board's decision should be dismissed, because review by VCAT would constitute an adequate alternative remedy.

26 His Honour rejected the appellant's construction of the relevant provisions of the Act and held that the Board's decision was not void.

27 He dismissed the appellant's originating motion seeking judicial review of the Board's decision, on the ground that, although the appellant alleged a denial of procedural fairness, and the matter involved a significant legal question, the appellant had an adequate alternative remedy in VCAT.

28 His Honour also dismissed the appellant's appeal against the Master's dismissal of her application to amend the originating motion by adding a ground based on the unrevoked delegation to the Institute, because that question could also be dealt with by VCAT.

29 The trial judge answered the preliminary questions as follows:

Question: whether the Defendant's decision of 7 December 2006 to refuse to renew the Plaintiff's local practising certificate is void and of no legal effect on the ground that the Decision was not made within 60 days after receiving her application for renewal of her practising certificate.

Question: whether this proceeding ought to be dismissed on the ground that each of the grounds for review set-out in the Plaintiff's Originating Motion dated 13 February 2007 will necessarily be addressed by virtue of the fact that the Victorian Civil and Administrative Tribunal will be reviewing the Decision.

1. The learned trial judge erred in the construction which he placed on s 2.4.12(2) of the Legal Profession Act 2004. In particular:

1.1 the learned trial judge erred in holding that, although s 2.4.12(2) requires the respondent to renew or refuse a local practising certificate within 60 days of an application for renewal being received, the respondent had power to make a determination to refuse to renew the appellant's local practising certificate after the expiration of that 60 day period;

1.2 the learned trial judge erred in holding that the determination of the respondent made on 7 December 2006 to refuse to renew the appellant's local practising certificate ("the determination") was a valid determination made by the respondent pursuant to s 2.4.12(2) of the Legal Profession Act 2004.

**31 The Legal Profession Act 2004, which was enacted to replace the Legal Profession Act 1996, forms part of a national scheme. The new Act implemented most of the National Practice Model Laws template developed by the Law Council of Australia and its constituent bodies (in consultation with the Standing Committee of Attorneys-General).

(a) to protect the public interest in the proper administration of justice by ensuring that legal work is carried out by those who are properly qualified to do so;

(b) to protect consumers by ensuring that persons carrying out legal work are entitled to do so.

**33 By s 2.2.2(2) of the Act, subject to specified exceptions in s 2.2.2(2), a person must not engage in legal practice in the jurisdiction unless the person is an Australian legal practitioner, which, by s 1.2.3(a), relevantly means an Australian lawyer who holds a current local or interstate practising certificate.

34 By s 2.4.1 of the Act, the purposes of Part 2.4 are stated to be:**

(a) to facilitate the national practice of law by ensuring that Australian legal practitioners can engage in legal practice in this jurisdiction and to provide for the certification of Australian lawyers whether or not admitted in this jurisdiction;

(b) to provide a system for the granting and renewing of local practising certificates.

**35 Section 2.4.3(1) of the Act provides that local practising certificates may be granted by the Board under Part 2.4. A local practising certificate may, by s 2.4.3(3), be subject to specified conditions imposed by the Board, to conditions imposed by the Supreme Court or by specified provisions of the Act.

36 By s 2.4.8(1) of the Act, an Australian lawyer may, if eligible, apply to the Board for the grant or renewal of a local practising certificate. The criteria for determining eligibility are set out in s 2.4.8(2).

(1) The Board must not grant a local practising certificate unless it is satisfied that the applicant -

(a) was eligible to apply for the grant when the application was made; and

(b) is a fit and proper person to hold the certificate.

(2) The Board must not renew a local practising certificate if it is satisfied that the applicant -

(a) was not eligible to apply for the renewal when the application was made; or

(b) is not a fit and proper person to continue to hold the certificate.

38 Section 2.4.5 of the Act deals with the duration of a local practising certificate which is granted or renewed. It provides:

(1) A local practising certificate granted under this Act is in force from the date specified in it until the end of the financial year in which it is granted, unless the certificate is sooner suspended or cancelled.

(2) A local practising certificate renewed under this Act is in force until the end of the financial year following its previous period of currency, unless the certificate is sooner suspended or cancelled.

(3) If an application for the renewal of a local practising certificate has not been finally determined before 1 July in the year in which it was made, the certificate remains in force, unless suspended or cancelled sooner, until the application has been finally determined.

(4) For the purposes of subsection (3), an application is finally determined -

(b) by the exhaustion of all rights of review in relation to a decision to refuse to renew the certificate.

**39 Section 2.4.4 of the Act deals with the matters to be taken into account by the Board when considering whether or not an applicant is a fit and proper person to hold a local practising certificate.

40 Section 2.4.9 of the Act deals with the mode of application for, and fees payable in relation to, the grant or renewal of a local practising certificate. By s 2.4.9(1)(a), the application must be in a form approved by the Board. By s 2.4.9(1)(b) and (c), it must be accompanied by the prescribed fee and, where specified, contributions, statutory declarations or evidence.

Timing of application for renewal of local practising

An application for renewal of a local practising certificate must be made on or before 30 April (except as provided by section 2.4.11) or, in the case of a person who is not an Australian legal practitioner on 30 April, on or before 30 June.

Late application for renewal of practising certificate

(1) A local legal practitioner may apply for renewal of a local practising certificate after 30 April in any year on payment of a surcharge of -

(a) if the application is made on or before 31 May - 25% of the prescribed fee for renewal of the certificate;

50% of the prescribed fee for renewal of the certificate.

(2) The Board may refund all or part of a surcharge paid under subsection (1) if it considers that there are special circumstances.

(3) This section does not apply to a person who was not a local legal practitioner on 30 April in the relevant year.

(1) Within 30 days after receiving an application for the grant of a local practising certificate, the Board must -

The criteria to be applied by the Board in making this decision are set out in section 2.4.7.

(2) Within 60 days after receiving an application for renewal of a local practising certificate, the Board must -

The criteria to be applied by the Board in making this decision are set out in section 2.4.7.

(3) If the Board refuses to grant or renew a local practising certificate, it must give an information notice about the decision to the applicant.

Section 2.4.37 provides a right to apply for review of the decision.

**44 Section 2.4.13 provides that a local practising certificate may be subject to a number of conditions of various kinds which may be imposed by the Board, VCAT, the Act, or other legislation.

Conditions imposed by the Board on grant or renewal

(1) The Board may impose conditions on a local practising certificate when it is granted or renewed.

The Board may also impose conditions on a local practising certificate, or vary or revoke conditions, during the currency of the certificate - see sections 2.4.21, 2.4.24 and 2.4.28.

(2) If the Board decides to impose a condition on a local practising certificate under this section, it must give the applicant or holder an information notice about the decision.

Section 2.4.37 provides a right to apply for review of the decision.

**46 Part 2.4 Division 6 of the Act deals with the amendment, suspension or cancellation of local practising certificates.

Grounds for amending, suspending or cancelling local practising certificate

Each of the following is a ground for amending, suspending or cancelling a local practising certificate -

(a) the holder is no longer a fit and proper person to hold the certificate;

(b) the holder is not, or is no longer, covered by professional indemnity insurance that complies with this Act;

(c) if a condition of the certificate is that the holder is limited to legal practice specified in the certificate - the holder is or has been engaging in legal practice that the holder is not entitled to engage in under the certificate.

**48 Section 2.4.21(1) of the Act provides that if the Board believes that a ground exists to amend, suspend or cancel a local practising certificate, it must give the holder a notice stating the proposed action, grounds, relevant facts and circumstances and inviting written representations.

If, after complying with subsection (2), the Board still believes that a ground exists to take the proposed action, the Board may -

(a) if the notice under subsection (1) stated that the proposed action was to amend the practising certificate - amend the certificate in the way stated or in a less onerous way the Board considers appropriate because of the representations; or

(b) if the notice stated that the proposed action was to suspend the practising certificate for a specified period -

(i) suspend the certificate for a period no longer than the specified period; or

(ii) amend the certificate in a less onerous way the Board considers appropriate because of the representations; or

(iii) amend the certificate in a less onerous way the Board considers appropriate because of the representations.

Amending a local practising certificate includes imposing a condition on it, or varying or revoking a condition - see the definition of amend in section 1.2.1.

50 By s 2.4.22 of the Act, the Board can suspend a local practising certificate immediately if it considers it necessary in the public interest.

**51 Both on appeal and before the primary judge, the appellant contended that, because s 2.4.12(2) provides that the Board must either renew or refuse the application to renew the certificate within the specified 60 day period, the failure to do so deprives the Board of jurisdiction to refuse the application and renders a purported 'late' refusal (such as occurred in the present case) null and void.

52 The appellant contended that the power to grant or refuse renewal was coincident with the 60 day period, because the word 'must' in s 2.4.12 (which was consistently used in contradistinction to 'may' in other provisions) imported an imperative indicative of mandatory obligation. She submitted that the power under s 2.4.12 should be construed strictly because it permitted the Board to deprive people of their livelihood. The appellant further argued that if the power continued after the expiration of 60 days from receipt of the application, breach of the obligation would have no consequence. The world 'must' would be meaningless.

53 The trial judge rejected the appellant's contention that a grant or refusal of renewal after the 60 day period had expired was void due to want of jurisdiction.

54 In concluding that the Board did not lose its power to refuse renewal after the 60 day period expired, his Honour relied on the principles endorsed by the High Court in Project Blue Sky Inc v Australian Broadcasting Commission.[9]

55 He took into account the powers conferred on the Board under the regulatory scheme of Part 2.4 and the centrally important goal of ensuring that legal practitioners were fit and proper persons. His Honour observed that in some cases the Board, absent unreasonable delay, would be unable to determine the fitness of an applicant within the prescribed period. Although the previous equivalent provision to s 2.4.12(12) had prescribed the grant of a practising certificate if the 60 day period elapsed without a determination to grant a new one, his Honour observed that the legislation had now been reworked.

The 60 day time period facilitates the operation of an administrative scheme for getting renewals done by 30 June in the given year. By s 2.4.10 applications for renewal by Australian legal practitioners "must" be made by 30 April. Here that word is certainly not used in the mandatory sense because s 2.4.11 allows later applications to be made, as I have already mentioned. The Board has to determine applications for renewal within 60 days [citing section 2.4.12(2)], which takes us up to 30 June. A renewed certificate stays in force for the whole of the next financial year [under s 2.4.5(2)] There you have the administrative ideal: application for renewal by 30 April, renewal by 30 June and currency for the next financial year.

**57 While rejecting the view that 'must' was used in s 2.4.12 in a mandatory sense, the primary judge observed that the 60 day limit was not, in consequence, devoid of effect.

This does not mean the Board can ignore the 60 day limit with impunity. The clear expectation is that renewal decisions will be made within that specified time. There are very good reasons for that expectation. ...[10]

59 He concluded that the present case did not involve unreasonable delay, and observed that -

the question whether the Board, in circumstances that do involve unreasonable delay, could resist an application for the enforcement of the time limit is an entirely different question.[11]

**60 According to the appellant, the primary judge erred in relying on the authorisation of 'late' applications in s 2.4.11 to exclude the mandatory sense of 'must' in s 2.4.12. In contrast to s 2.4.12(2), s 2.4.11 included an express exception and thereby confirmed that, absent an express exception, 'must' carried a mandatory force.

61 Further, the appellant argued that his Honour ignored the definition of 'final determination' in s 2.4.5(4) in accepting that, because s 2.4.5(3) recognised that an application could be 'finally determined' after 1 July, a capacity subsisted to make a valid determination outside the 60 day period.

62 She also contended that the judge misconstrued the significance of the previous equivalent provision in s 29(3) of the Legal Practice Act 1996. The failure to re-enact s 29(3) did not, the appellant submitted, signal a substantive change from the previous position. It was explicable by the change from a system of yearly grants under the prior legislation to renewal under the present Act. Under the present Act, there was no need to require a grant, because the certificate continued in force of the certificate, prescribed by s 2.4.5(3), achieved the same purpose in the context of a system of renewal. The Board's incapacity to refuse an application when no determination had been made within the 60 day period thus subsisted.

63 The appellant argued that her construction was necessary in order to ensure certainty in relation to the certification of legal practitioners, both from the perspective of applicants for renewal and the public interest.

64 She also argued that, in the present case, her certificate continued in force pursuant to s 2.4.5(3), although only a part of s 2.4.5(3) applied to the circumstances of her case. She submitted that only that part of s 2.4.5(3) up to and including the words 'remains in force' applied to an application to renew which was made within the time prescribed by s 2.4.10.

65 The appellant conceded that she remained subject to the Board's regulatory power to suspend or cancel her certificate, although contending that the application of s 2.4.5(3) was effectively bifurcated according to whether the application was late or on time. As I understood the argument, the first half of subsection (3) (which ends at the words 'the certificate remains in force') was said to apply only to applications which were made on time, but had not been determined within 60 days, while the entirety of s 2.4.5(3) was said to apply to applications which were made late (after 30 April), but for which the 60 day period had not run out. His Honour also rejected that argument. He stated:**

I reject that submission. The plaintiff's approach splits s 2.4.5(3) into two. It treats the first half as applying to cases where the application was made before 30 April but was not decided (within 60 days) by 30 June, that is, the applicant's case. Then it treats the second half as not applying to that kind of case but rather to late applications only. The approach allows an applicant in the plaintiff's category to take the benefit of the deemed continuance of the practicing certificate that the first half provides. Then it denies the Board the power to determine applications in that very category that the second half contemplates. I do not think the section has a split personality. The section works perfectly well as a harmonious whole when its words are afforded the generality that their ordinary meaning demands. I cannot see any basis for reading them down.

Thus I cannot get from s 2.4.5(3) the idea that exceeding the 60 day time limit in s 2.4.12(2) means the Board loses the power to determine an application for renewal of a certificate. The indication in s 2.4.5(3) is in the opposite direction. It tells us what happens in such a case: "the certificate remains in force ...until the application has been determined.

**66 The appellant contended that her construction accords with the Act as a whole and the underlying regulatory scheme. She complained that the primary judge's construction renders nugatory the 60 day time limit or, without statutory warrant, equates it to a reasonable time and reduces the imperative in s 2.4.12 to precatory words.

67 In my opinion, the primary judge correctly held that an analysis of the inter-related provisions of Part 2.4 of the Act, consonant with its objectives, establishes that that the Board's jurisdiction to refuse an application for renewal is not lost after the expiration of the 60 day period. His rejection of a bifurcated application of s 2.5.4(3) was, in my view, correct. The language of subsection (3) cannot be severed at mid point, in order to exclude the application of the second half (which grammatically attends and delimits the stipulation that the certificate will remain in force) to a particular type of applicant. Neither s 2.5.4(3) nor any other provision of the Act expressly or implicitly indicates a discriminatory application of discrete parts of subsection (3). The appellant's construction is, moreover, based on a gross distortion of the language and grammatical structure of the subsection.

68 The primary judge considered that the reference in s 2.4.5(3) to the certificate remaining in force until the application had been finally determined supported the view that the Board retained the power to determine a renewal application after the 60 days had expired. The appellant complains that his Honour thereby overlooked the definition of 'finally determined' in s 2.4.5(4). It is true that a refusal does not, in itself, constitute final determination under s 2.4.5(4). It is, however, a necessary element in one of the two types of 'final determination' contemplated.

69 An examination of s 2.4.10, 2.3.11 and 2.4.12 indicates a complementary operation of s 2.4.5(3) and (4) in relation to other provisions of the statutory scheme for renewal, which supports the trial judge's construction of s 2.4.12(2).

70 There is no necessary relationship between, on the one hand, the date of 1 July in the year in which an application was made, referred to in s 2.4.5(3), and, on the other hand, the 60 day period from the date of receipt of an application for renewal referred to in s 2.4.12(2).

71 The Act contemplates both timely applications to renew made by the prescribed 30 April deadline and later, but permitted, applications to renew made after that date, to which a surcharge applies. (Such applications under s 2.4.11 are described as 'late' in the heading, but not in the section.) For convenience, I shall refer to them as 'late' applications.) Assuming that the date of making an application coincides with its receipt by the Board, a 'timely' application under s 2.4.10 would be decided (if within 60 days of its receipt) prior to 1 July of the relevant year. Section 2.4.5(3), therefore, would rarely apply to an application to renew which was both made and granted within the standard time.

72 Section 2.4.5(3) could, when read in conjunction with s 2.4.5(4), apply to: (a) an application which was not late, but where the 60 days limit had been exceeded; (b) a late application where the 60 days had not expired; (c) a late application which had not been determined within 60 days of its receipt; or (d) an application which was not late which had been refused within the 60 day limit, but where the review rights in relation to the refusal had not expired.

73 Final determination, in the context of s 2.4.5(3), does not include the refusal per se of the application to renew. It is constituted by either a grant of the application, or the exhaustion of all rights of review of a refusal. In my opinion, that circumstance contemplates that a refusal will have some effect, either by constituting the basis for review, or, if no review were instituted within the applicable time limits, by becoming absolute.

74 The benefit of a continuing certificate would apply to a timely applicant for renewal where the 1 July date passed due to the Board's non-compliance with s 2.4.12(2), a late applicant where the date passed without non-compliance by the Board, to a late applicant where the Board had failed to comply with the deadline prescribed in s 2.4.12(2), or a timely application made but refused within the time limit, until the Board granted the application, until review rights on a refusal were exhausted, or until the Board cancelled or suspended the certificate.

75 Comprehensive coverage of all such applications serves the purposes of the Part by facilitating the fair and efficient functioning of the renewal system. Late applications, although subject to a pecuniary surcharge, are expressly authorised by the Act, yet could fail to be determined by 1 July either with or without the Board's compliance with the 60 day time limit, but many of them would, on the appellant's construction, be excluded from the benefit of s 2.4.5(3) and (4). As his Honour recognised, there could be many circumstances in which the Board might reasonably require longer than 60 days to determine an application for renewal, but there is no machinery for an extension of the period specified in s 2.4.12(2). All possible contingencies in which an application has not been finally determined (as defined) prior to 1 July are effectively provided for under the construction adopted by the primary judge. The public interest is protected by the Board's overriding power to cancel or suspend a certificate in an appropriate case.

76 The consequences of failure by the Board to renew or refuse the application to renew under s 2.4.12(2) within 60 days after receiving an application are not set out, either in s 2.4.12(2) or elsewhere in the Act.

77 In contrast, s 29(3) of the Legal Practice Act 1996 (the provision equivalent to s 2.4.12(2) of the Act) expressly provided that, if at the end of the 60 day period, no decision to refuse the renewal application had been made, the Board must issue a practising certificate to the applicant.

78 As his Honour observed, the legislature has not replicated the requirement in s 29(3) of the Legal Practice Act 1996 that a certificate be granted if a determination is not made within the time prescribed. The s 2.4.5(3) provision that the certificate will remain in force is not equivalent to s 29(3), as s 2.4.5(3) and (4) clearly contemplate that there may be no final determination before 1 July and provide more flexibility to address that circumstance.

79 The operation of s 2.4.5(3) in a way which upholds the objectives of the Act and promotes the effective operation of the statutory scheme for renewal thus depends, as his Honour, recognised, on the Board's retention of jurisdiction after the expiration of the 60 day period prescribed by s 2.4.12(2). If the appellant's construction of s 2.4.5(3) were correct, only applicants under s 2.4.10 would be likely to be covered if the time limit were exceeded.

80 Further, the primary judge's construction is fortified by the fact that s 2.4.9(6)-(8) implicitly contemplate that an initially deficient application for renewal can be renewed after the 60 day period in s 2.4.12, as, by s 2.4.9(10), the Board must give notice of the deficiency by 15 June and, by s 2.4.9(7), renewal (which assumes a determination by the Board) does not take effect until remedy of the failure or deficiency. An indefinite period is therefore contemplated and the determination could occur either after 1 July or outside the 60 day time limit, without undue delay by the Board. Those provisions are also predicated on a flexibility inconsistent with the view that the Board's jurisdiction to renew (or refuse) is coterminous with the 60 day period.

81 The appellant's construction of s 2.4.12(2) would give rise to other anomalies. If applied consistently to s 2.4.12(1) in relation to the grant of a certificate, it would appear to dictate a deemed grant of a practising certificate in the event of non-compliance with the deadline, irrespective of whether the relevant applicant were qualified. Similarly, a consistent attribution of imperative force to 'must' in the context of s 2.4.7(2) could, on the facts of the present case, impose concurrent but mutually irreconcilable obligations on the Board.

82 It follows that, in my opinion, construing s 2.4.12(2) in context with related provisions and in order to give effect to the goals of Part 2.4, the Board's decision to grant or refuse renewal of a local practising certificate after the expiration of 60 days is not void for want of jurisdiction.

83 That construction does not deprive the word 'must' of all effect, or render it merely precatory. As the primary judge stated, it expresses a clear legislative intention that applications be determined within 60 days. As Nettle JA observed in the course of the hearing, the failure to make the decision within the prescribed time may be deemed a refusal to make a decision pursuant to s 4 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act') and the expiration of the 60 day period without a determination would found an entitlement to seek relief, including a review by VCAT.

84 In my opinion, the primary judge did not err in his construction of s 2.4.12(2). Section s 2.4.5(3) would, however, apply in the circumstances of this case and the appellant's previous certificate would remain in force until the rights of review in relation to the Board's refusal are exhausted, unless it be suspended or cancelled sooner.**

2. The learned trial judge erred in the exercise of his discretion to refuse relief by way of judicial review on the ground that the appellant had an adequate alternative remedy, namely, by administrative review of the respondent's determination by the Victorian Civil and Administrative Tribunal.

86 In that context, the appellant argued that the trial judge misconstrued relevant authority,[12] and erroneously concluded that VCAT:

(i) ... "possesses a jurisdiction independently to consider all issues of jurisdiction, law, fact and merit raised by the [appellant's] application to review the decision of the Board"; and

(ii) ... has the jurisdiction to consider the issues raised by the [appellant] in the judicial review application and therefore supplies an adequate alternative remedy for the [appellant]'s legal claims"...

Review of decisions about local practising certificates

(1) A person whose interests are affected by the decision may apply to the Tribunal for review of a decision of the Board -

(a) refusing to grant or renew a local practising certificate under section 2.4.12 or 2.4.28; or

(ab) imposing a condition on a local practising certificate under section 2.4.14; or

(b) amending, suspending or cancelling a local practising certificate under section 2.4.21 or 2.4.28; or

(d) refusing a request to amend a local practising certificate under section 2.4.24.

(2) An application for review must be made within 28 days after the day on which the information notice about the decision was given to the person.

(3) On a review under this section, in addition to having all the powers of the Board in respect of the decision, the Tribunal may make any order the Tribunal could make under section 4.4.17 or 4.4.19 (except paragraph (a)).

(1) Review jurisdiction is jurisdiction conferred on the Tribunal by or under an enabling enactment to review a decision made by a decision-maker.

(1) In exercising its review jurisdiction in respect of a decision, the Tribunal -

(a) has all the functions of the decision-maker; and

(b) has any other functions conferred on the Tribunal by or under the enabling enactment; and

**90 Before his Honour and on appeal, the appellant contended that the decision of the Board in this case was a nullity, because it was made in breach of the rules of natural justice. That constituted a jurisdictional error, so the decision could not be reviewed by VCAT.

91 The trial judge rejected that contention. He concluded that VCAT had jurisdiction to review the Board's decision, even if invalid for jurisdictional error by reason of a breach of natural justice and was (absent curial intervention), required to exercise its merits review jurisdiction in respect of the decision.

92 His Honour considered that VCAT had jurisdiction, because a decision had been made, irrespective of whether it were valid or not. VCAT was not required to deal with any breach of natural justice by the Board, because it could itself accord natural justice in the exercise of its independent jurisdiction.

93 As the trial judge acknowledged, statements in Minister for Immigration and Multicultural Affairs v Bhardwaj,[13] when taken in isolation, indicated that a decision made in breach of natural justice is invalid and amounts to no decision at all. He considered that those observations addressed the facts of the particular case and did not exclude review of such a decision by an administrative tribunal.

94 In Bhardwaj, Gaudron and Gummow JJ (with whom McHugh J, on that issue, agreed) observed:**

a decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. [Citations omitted][14]

The observation was made in relation to a tribunal's initial decision to cancel a visa was made in denial of procedural fairness. In such circumstances, the High Court held that the tribunal was not precluded by an unduly inflexible application of the doctrine of functus officio from revisiting its decision in order to correct the error. Gaudron and Gummow JJ, rejected a tendency to conceptualise administrative decisions reviewable for error as voidable, rather than void. They observed that the former characterisation tended to be used in recognition that a decision which was, for example, contrary to natural justice, had to be treated as 'having at least sufficient effect to "ground" an appeal or other legal proceedings'.[15] Gleeson CJ also recognised that the legal consequences of a decision involving jurisdictional error depended on the context and the purposes of the legislation.[16] The appellant advanced no written or oral submissions on McDonald v Guardianship Board,[17] Transport Accident Commission v Baush[18] or Davidson v Victorian Institute of Teaching,[19] which in her submission, his Honour misconstrued.

95 Whatever the general position of decisions made without jurisdiction, VCAT's power to review a decision of the Board made without jurisdiction is put beyond doubt by s 4(2) of the VCAT Act, which relevantly provides:

For the purposes of this Act or an enabling enactment -

(b) a decision that purports to be made under an enactment is deemed to be a decision made under that enactment even if the decision was beyond the power of the decisionmaker

96 In my opinion, his Honour correctly concluded that pursuant to its functions under s 51(1) and (2) of the VCAT Act, VCAT has statutory jurisdiction to carry out an independent review on the merits of the decision at first instance, standing in the primary decision-makers' shoes and making the correct and preferable decision on the materials before it. As his Honour concluded, it can decide all questions of jurisdiction and law as well as fact and merit.

**97 The appellant principally complained that, in exercising his discretion to deliver the appellant's application for judicial review, his Honour erred in failing to follow the approach of Megarry J in Leary v National Union of Vehicle Builders ('Leary'),[20] failing to accord any or sufficient weight to the Board's allegedly inadequate reasons, reaching a decision not open on its findings of fact and its denial of natural justice. She also complained that the primary judge failed to give appropriate weight to the fact that the Board allegedly erred in law in determining that she was not a fit and proper person on the basis only of a contempt conviction. She contended that instead, the primary judge took account of, and accorded weight, to irrelevant matters, including the likelihood that curial determination of the legal question would involve a lot of time and effort.

possesses a statutory jurisdiction to carry out an independent review on the merits of the decision at first instance. That is a jurisdiction to stand in the shoes of the original decision-maker and make the correct and preferable decision as the Tribunal sees it, not simply to make a decision on whether the decision being reviewed was reasonable. There is no presumption that the decision at first instance was correct. The jurisdiction of the Tribunal is exercised on the materials before it, which are not confined to those that were before the original decision-maker. The Tribunal can decide all questions of jurisdiction and law, as well as fact and merit, which are raised in the application for review.

Those principles apply equally to the powers of the Tribunal when reviewing a decision of the Board not to renew a practising certificate. In the present case, the Tribunal possesses a jurisdiction independently to consider all issues of jurisdiction, law, fact and merit raised by the plaintiff's application to review the decision of the Board. It is the one forum in which all of these issues can be dealt with, for it is not part of the Court's function to determine whether the plaintiff is a fit and proper person to hold a practising certificate. This is a powerful condition in favour of leaving the matter in the Tribunal's hands. I will consider the individual grounds of the plaintiff's application for judicial review. Subject to that, I think the Tribunal supplies an adequate alternative remedy for the issues raised by the plaintiff. [Citations omitted]

**99 There is a discretion to refuse relief by way of judicial review. The opponent bears the onus of persuading the court to exercise the discretion against the applicant for relief. There are some established grounds which might justify the exercise of the discretion to deny the relief. In particular, as his Honour recognised, the existence of an adequate alternative remedy is such a factor. The existence of an adequate alternative remedy is not, however, necessarily determinative. Circumstances might nevertheless indicate that judicial review should proceed.

100 One such factor is the involvement of an important legal question, which can only be determined finally by the court. Another factor is that the original decision was, or may have been, attended by a breach of natural justice. In such circumstances, an applicant for judicial review may be entitled to a fair decision below, together with the full panoply of appellate recourse which would ordinarily apply. To deny judicial review to a plaintiff who did not obtain natural justice in relation to the original decision may be to deprive her of at least one level of appeal. Although the alternative tribunal may accord the plaintiff natural justice and afford in all other respects an adequate alternative remedy, a significant appellate option could be lost.

101 So much was recognised in Leary. In that case, the plaintiff was excluded from membership of a union by the decision of a branch meeting, which was subsequently endorsed by a committee of the relevant branch. It was common ground that the resolutions of the branch meeting and the branch committee were contrary to the rules of natural justice. There was no charge, no hearing and the plaintiff, who was unaware of the meeting, had no opportunity to meet the case against him.

102 Following hearings before the union's general purposes committee and its national executive committee, the union's appeals council ultimately conducted a complete rehearing, at which all requirements of natural justice were fulfilled. The appeals counsel also determined that the plaintiff should be expelled.

103 Megarry J, while acknowledging the want of direct English authority on the point, considered whether the deficiency of natural justice before a trial tribunal can be cured by a sufficiency of natural justice before an appellate tribunal.[21]

104 By reference to Canadian authority, his Lordship concluded that -**

if there is a defect of natural justice, the proper course is for the body to which the jurisdiction is confided to rehear the matter de novo, rather than treat any further hearing as an appeal or, a fortiori, let the matter be consigned to some appellate tribunal or other body. [22]

He considered that, while it was not necessary formally to annul the original decision before starting afresh, '[t]he sheet should be made as clean as possible'. [23]

105 In that context, his Lordship stated that what was required

was a venire de novo and not the process of an appeal, whereby the person aggrieved may be treated as bearing the burden of displacing an adverse decision which, for lack of natural justice, ought never to have been reached.[24]

**106 In Leary, the fresh hearing by the appeal's council was, in substance, a rehearing.[25] Witnesses were called and heard and the plaintiff had complete liberty of action to present his case in full. Megarry J did not consider, however, that it is 'open to an appellate body to discard its appellate functions and itself give the man the fair trial that he has never had'.[26] On the contrary, the plaintiff had a 'right to be tried properly and fairly by the only body with power under the rules to try [him] in the first place'.[27] It was no answer to a denial of natural justice to say 'never mind, one of the central bodies will treat your appeal as if it were an initial trial'. [28]

107 His Lordship also recognised the further significant difficulty that, if denied judicial review, the plaintiff would be deprived of the right of appeal from the original decision-maker. [29]

If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural justice in the appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right to appeal to another body from the effective decision to expel him. I cannot think natural justice is satisfied by a process whereby an unfair trial, though not resulting in a valid expulsion, will nevertheless have the effect of depriving a member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would be a powerful result to be achieved by what in law is a mere nullity; and it is no mere triviality that might be justified on the ground that natural justice does not mean perfect justice. As a general rule, at all events, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.[30]

**109 The respondent contended that Megarry J's observations were too widely stated and did not represent the law in Victoria, being inconsistent with Kuek v Victoria Legal Aid[31] ('Kuek'). Kuek, however, concerned a different point. In that case, the appellant unsuccessfully appealed from a Master's refusal of leave to bring an appeal pursuant to s 109 of the Magistrates' Court Act 1989 from the decision of a magistrate out of time.[32] The appellant also sought alternative relief in the nature of certiorari, alleging error in the Magistrate's decision. A trial judge dismissed that claim, holding that none of the grounds was made out.[33] She also considered that there was no jurisdiction to hear the matter, or alternatively, she declined to exercise the discretion sought by the plaintiff. [34]

110 On appeal, Phillips JA (with whom Winneke P and Buchanan JA agreed) upheld that exercise of discretion. [35] He observed that while certiorari might go for error of law on the face of the record, error of law was also the very foundation of an appeal under s 109 of the Magistrate's Court Act 1989. That provision constituted the only avenue for bringing an appeal out of time by leave, which had been refused and the appeal process exhausted. His Honour stated that:**

[i]n substance the application for judicial review was no more and no less than the appellant's attempt to appeal by another means ... [36]

**111 Kuek thus turned on the concurrence of substantially identical remedies by way of judicial review and pursuant to specific legislation, in circumstances where the legislation prescribed conditions which had not been satisfied. Kuek did not address the question raised in Leary. It poses no impediment to the persuasive recognition in Leary that a complete rehearing de novo by an appellate or review tribunal standing in the shoes of an original decision-maker may not, in every case, constitute an answer to a denial of natural justice by the original decision-maker.

112 There is, in this context, 'no clear and absolute rule'.[37] The Privy Council has recognised the principle that a plaintiff is entitled to both a trial and an appeal conducted in accordance with natural justice may not apply where, for example, the parties can, by reference to the applicable rules and contractual context, be taken to have 'agreed to accept what in the end is a fair decision, notwithstanding some initial defect.'[38]

113 In other instances, however, an examination of the 'whole hearing structure, in the context of the particular activity to which it relates'[39] may lead to the conclusion that, as in Leary, 'a complainant has the right to nothing less than a fair hearing both at the original and at the appeal stage.'[40]

114 In my opinion, that principle applies in the present case. The appellant's professional standing and livelihood were at stake. Several grounds of her originating motion involved allegations of breach of the rules of natural justice. First, the appellant complained that she was unfairly disadvantaged by participating in a 'show cause' investigation conducted by the Institute when ultimately, and contrary to her understanding, the Board took the matter over and acted under its renewal powers without notifying her. She also alleged that the Board made the decision without regard to important information which she had provided to its delegate, the Institute.

115 His Honour exercised his discretion to deny her relief because the appellant could place all relevant material, whether new or not, before VCAT, which was 'the proper place for [the appellant] to take her case' with 'jurisdiction to conduct a full review on the merits according to fair procedures, whatever may have been the deficiencies in the procedure adopted by the Board'.

116 He did not advert, in that context, to the appellant's potential loss of her right to seek review by VCAT of a decision of the Board reached in accordance with the rules of natural justice. After stating that applicants such as the appellant should normally be confined to their right of review by VCAT, he considered factors which could displace that view. Although he recognised the appellant's allegations of breach of natural justice and considered that there was substance to her claims of error of law, his Honour appeared to treat the practical advantages and efficiencies of review by VCAT as determinative, although that approach could deny the appellant a significant element of the review or appeal process to which she is entitled. While Leary concerned an undisputed breach of the rules of natural justice (in contrast to the allegations in the present case) and a possibly irregular conduct of a rehearing by an appellate body, those distinctions are not, in my view, decisive.

117 His Honour failed to consider the appellant's entitlement to full access to all otherwise available levels and elements of review of a decision taken in accordance with the rules of natural justice, of which his exercise of discretion potentially deprived her.

118 It follows that, in my opinion, his discretion miscarried on that basis.**

**119 His Honour found evidence to support the appellant's contention, that the Board's decision disclosed error of law on the face of the record.

At a glance

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Judgment (252 paragraphs)

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Legislation Cited (18)

Cases Cited (7)