He v Aloe & Co Pty Ltd [2006] VSCA 235

1 The appellant, Daming He ("DH"), sued in the Magistrates' Court for $2026.50 plus costs and interest, for damage to his motor vehicle. The respondent ("AAC") was his solicitor. After three adjournments, the matter came on for hearing on 30 November 2001. Following negotiations, the case was settled for $1425, plus costs and disbursements agreed at $1716.

2 DH was very unhappy with the outcome. He was dissatisfied with the conduct of his lawyers, and believed he had been pressured into accepting inadequate compensation. He made a complaint against the barrister to the Legal Ombudsman, which was dismissed. Then in March 2003, he complained about AAC to Victorian Lawyers RPA Limited ("the Law Institute"). The Law Institute was unable to resolve the dispute and referred it to the Legal Profession Tribunal ("the Tribunal"). After a hearing on 10 March 2004, the Tribunal upheld a no-case submission on behalf of AAC and dismissed DH's claims. DH appealed to the Full Tribunal, which dismissed his appeal and ordered him to pay costs.

3 Under s.170(1) of the Legal Practice Act 1996 ("the 1996 Act"),[1] DH has an appeal as of right to this Court from the decision of the Full Tribunal, but only on a question of law. By notice of appeal dated 18 August 2004, DH set out at length his complaints about the procedure in the Tribunal and in the Full Tribunal. His principal complaint was that, both in the Tribunal and on appeal to the Full Tribunal, his allegations of misconduct by AAC had been ignored. The notice of appeal itemised 10 instances of alleged misconduct.

4 The appeal to this Court was due to be heard on 24 November 2005 but the hearing date was vacated after the Court decided that the draft notice of appeal did not comply with the applicable rules, set out in Order 4 of Chapter 2. Contrary to the requirements of rule 4.11(1), the draft notice did not identify questions of law in an appropriate way and did not set out concisely the grounds of appeal. Accordingly, the Court ordered that paragraphs 1-28 of the draft notice be struck out, but gave leave to DH to apply at a later date for leave to substitute appropriate paragraphs in the notice of appeal.

5 On 7 July 2006, the President and Eames JA gave DH leave to substitute paragraphs raising various questions of law, to which reference will be made. (For ease of reference, we now set out the background facts as described in the reasons for judgment granting that leave.)[2]

The Magistrates' Court proceeding

6 On 30 October 2000, DH was involved in a motor vehicle accident, in which his vehicle was damaged. The driver of the other vehicle was insured with AAMI Insurance ("AAMI"), which accepted liability. AAMI would not, however, pay the cost of repairing the vehicle, which was estimated at $4000. AAMI considered the car a "write off" and offered DH $800.

7 According to the statement of DH's case filed with the Tribunal ("the statement of case")[3], DH consulted AAC in about November 2000, following AAMI's offer. He met with a solicitor named Bakhaazi, who was employed by AAC. According to DH, Bakhaazi agreed that the firm would act for DH, and gave him the following assurances:

"(a) If the car was valued by a car assessor at more than $800, the legal practitioner could claim back the assessed value and all costs from AAMI;

(b) the legal practitioner would charge no fee from the client;

(c) the client had to take the risk of paying for an assessment of the value of the car at first. This was the only money the client was obliged to pay until AAMI paid all his claims;

(d) the legal practitioner estimated from his own knowledge that the car was worth more than $800."

8 On the recommendation of AAC, DH obtained a loss assessment report from Daryl Fanning & Associates, loss assessors, dated 18 December 2000. DH paid $126.50 for the report. The report made the following assessments of the vehicle:

• pre-accident value $1950;

• cost of repairs $4000;

• highest salvage tender $50;

• suggested net loss $1900.

The report expressed the opinion that "it would not be an economical proposition to attempt repair and that, if settlement was contemplated, consideration should be given to settling the claim on a total loss basis."

9 On instructions from DH, Bakhaazi issued a Magistrates' Court complaint, which specified the amounts claimed as follows:

"(a) the costs of repairs to the plaintiff's [sic] $1900;

10 On 20 March 2001, the solicitors for AAMI, who were conducting the defence on behalf of the insured driver, filed a statement of expert evidence, which indicated that their own loss assessor would state:

" ● that in his opinion the net pre-accident value of the plaintiff's motor vehicle amounted to $800;

● that an amount of $1900 claimed by the plaintiff for pre-accident value is inflated and does not take into account the age or condition of the plaintiff's motor vehicle."

11 On 23 April 2001, AAC filed a statement of expert evidence on behalf of DH, indicating that Mr Fanning would give evidence -

"● that in his opinion the net pre-accident value of the plaintiff's motor vehicle amounted to $1900;

● that an amount of $1900 claimed by the plaintiff for pre-accident value is not excessive."

The three adjournments

12 The case was due to be heard in the Melbourne Magistrates' Court on 21 May 2001. At 8:45 on the morning of the hearing, Bakhaazi contacted DH to inform him that AAMI had sought an adjournment. The matter was adjourned to 24 July 2001. DH did not attend court, although he had taken a day off from work in order to be able to attend. Counsel briefed on behalf of DH did not attend court, and accordingly no counsel's fee was incurred.

13 Agreement to adjourn had in fact been reached, between the solicitors, several days earlier. On 15 May 2001, Bakhaazi wrote to AAMI's solicitors. The letter referred to a telephone conversation earlier in the day and confirmed -

"that this matter is to be adjourned by your firm and that payment of the sum of $650 is to be paid to Aloe & Co Solicitors for costs thrown away by reason of the adjournment."[4]

14 Had DH been informed promptly - as he should have been - that the 21 May hearing had been adjourned, he would presumably have avoided having to take a day off from work on 21 May. In the events which happened, however, he was not advised of the adjournment until the morning of the hearing, by which time he had already taken leave for the day. One of DH's claims against AAC was for the earnings lost ($200) as a result.[5]

15 By letter dated 4 June 2001, AAMI's solicitors forwarded to AAC "our client's cheque for $650, made payable to your firm." According to DH, he was not told until much later that AAMI had made this payment to AAC for the costs of the adjournment on 21 May. What is rather more significant is that, no counsel's fee having been incurred for that day (no doubt because of the agreement in advance to adjourn the hearing), this sum of $650 was paid to AAC in respect of its own professional costs of the adjourned hearing. This is a matter to which reference will be made later in these reasons.

16 On the adjourned hearing date, 24 July 2001, counsel was briefed on behalf of DH but neither AAMI nor its representatives appeared at court. The case was again adjourned - this time to 21 September 2001 - and the court ordered the defendant (in effect, AAMI) to pay DH's costs of $744. This sum comprised counsel's fee of $544 and $200 representing DH's loss of earnings for that day, which on this occasion was claimed by AAC on his behalf. As on 21 May, DH had been obliged to take a day off work in order to be at court.

17 By letter dated 16 August 2001, AAMI's solicitors forwarded to AAC a cheque for $744 payable to the firm. Counsel's fees of $544 were subsequently paid but AAC at no time paid to DH the sum of $200 which, as mentioned, was payable to DH for his loss of earnings. Counsel's backsheet clearly identified the amount of $200 as being for "witness expenses (plaintiff)". The non-payment of the $200 formed the basis of another of DH's claims against AAC.[6]

18 In June 2001, AAMI's solicitors made a settlement offer of $1600 plus costs. A letter was drafted by AAC purporting to accept that offer, but DH was not satisfied with the offer, and the letter was not sent.[7]

19 On the next hearing date (21 September 2001), DH's loss assessor, Fanning, failed to attend at court. According to the account he later gave to the Victorian Bar, DH's barrister made "desperate telephone calls" to Bakhaazi and to Fanning.

"My instructor confirmed that Fanning was aware of the hearing but when I was able to contact Fanning on his mobile he informed me he was out of town and that he had informed my instructor that he would not be available to attend. In the absence of our client's expert I informed Mr He that he had but two alternatives:

(i) to settle there and then to the amount then being offered by the defendant that day which I might add was substantially more than had been offered previously; or

(ii) adjourn the matter to another date when Fanning would be present, and for [DH] to pay the defendant's costs of the day.

I made it perfectly clear to [DH] that Fanning's evidence was crucial and essential if the matter was to proceed to a hearing and that I would be unable to resist the defendant's application for costs of the adjournment as Fanning's non-attendance was in no way the fault of the defendant. The client instructed me not to accept the offer of settlement that was made and that the matter be adjourned to another date upon [DH] paying the defendant's costs of that day fixed at $794."

20 DH's statement of case directed criticism at the solicitor, Bakhaazi -

"... [T]he legal practitioner [Bakhaazi] insisted that they would not go to the Court without Mr Fanning and alleged the client should take responsibility for the adjournment and use[d] the cost of the adjournment to threaten and coerce the client to accept AAMI's offer, $1175 plus costs. After four hours the legal practitioner agreed to pay AAMI $794 and adjourned the matter to 30 November."[8]

21 Because of the inability to call Fanning, the hearing had to be adjourned on the application of DH as plaintiff. As a result, DH was ordered to pay costs in the sum of $794. Those costs were subsequently paid by AAC, together with the fee for counsel who appeared on behalf of DH ($544). DH claimed that AAC was responsible for making sure that Fanning attended and that the firm should therefore compensate DH for his loss of earnings ($200) resulting from having had to attend court.[9]

The final hearing

22 Finally, on 30 November 2001, all parties and witnesses were present. The complaint by DH about what occurred on that day is best understood by setting out in full the relevant part of his statement of case:

"10. Negotiations were conducted prior to the hearing and AAMI offered the client $1425 plus costs. Mr Bakhaazi and [counsel for DH] both advised the client to accept the offer, as the client would still be entitled to a refund on the residual registration and the salvage, which were included in the $1900. The legal practitioner advised the client that the Magistrate would assess the loss at being halfway between the client's assessment and AAMI's assessment, that is $1350. He advised the client he would not proceed to Court 'for a loss'.

11. The client refused to accept the offer and instructed the legal practitioner to have the matter determined by the Court as the Loss Assessment Report [by Fanning] put the net loss at $1900 and Mr Fanning asserted that that figure did not include residual registration and salvage.

12. After four hours of negotiation the legal practitioner then asked the client to pay $95 immediately to enable Mr Fanning to remain at Court and give evidence. The client did not have $95 with him at the time and was unable to pay, as the legal practitioner had earlier assured him that he need pay no more than the cost of the loss assessment prior to AAMI paying all his claims. The legal practitioner then said that Mr Fanning would leave, the matter would have to be adjourned, and that the client would pay the costs of the adjournment.

13. The client asked the legal practitioner to set out their advice in writing. The legal practitioner refused to do so. However, the legal practitioner let Mr Fanning wrote (sic) a note for the client that he considered AAMI's offer of $1425 plus costs to be reasonable in all the circumstances as it did not include residual registration or salvage.

14. The client finally accepted AAMI's offer but informed the legal practitioner that he would be making a complaint to the Legal Ombudsman."

23 On 24 January 2002, AAC wrote to DH enclosing -

"our trust account cheque in the sum of $1425.00 being the amount ordered on the claim."

The cheque was signed by John Aloe, the principal of AAC ("Aloe").

The complaints

24 By letter dated 28 January 2002, DH made a complaint to the Legal Ombudsman about the conduct of his barrister. The Ombudsman referred the complaint to the Victorian Bar, pursuant to s.142 of the 1996 Act. The barrister provided a detailed written account of what had occurred, dated 8 March 2002,[10] following which the Ethics Committee of the Victorian Bar resolved to take no further action against the barrister pursuant to s.151(5) of the Act. The committee provided written reasons for that decision, dated 8 July 2002.[11]

25 By letter dated 20 March 2003, DH complained to the Law Institute about AAC. On 1 April 2003, the Professional Standards division of the Law Institute referred the complaint to AAC. In the covering letter, the Professional Standards officer said (in part):

"It appears to me that the complainant is raising the following issues:

(a) Pecuniary loss claim, alleged to be $1,279.08 as detailed in the complaint due to the alleged bad case handling on the part of the firm.

(b) It is alleged that Mr Bakhaazi allegedly said that the September 2001 hearing had to be adjourned due to the fault of the client. It is alleged that Mr Bakhaazi may have mislead (sic) the client.

In order that there is no confusion I suggest that you answer the allegations relating to conduct and disputes separately."

26 AAC responded very promptly. By letter dated 4 April 2003 to Professional Standards, AAC advised -

"that it is our view that Mr Daming He has no cause for complaint as we have already compensated [him] for an amount in excess of what he is claiming in his complaint.

We advise that Mr He has previously complained to us about Mr Bakhaazi's negligence after the conclusion of this matter. In order to resolve it Mr Lontos of this firm after consultation with me advised him that we wouldn't charge solicitor/client costs and that from costs due to us that we would pay for costs of the adjournment of the 21st September 2001 and Mr Fanning's fees for attending at the final hearing. The only costs recovered by this firm were part of our costs which relate to issuing proceedings and service fees which total $247.50. Total disbursements received by us were $197.50.

We enclose copy of our account addressed to Mr He dated the 30th March 2002 which account does not include solicitor/client charges or a $50.00 fee for service of a Summons to Witness."

The letter advised that Aloe could not comment as to what had taken place at the final hearing, as he had not been present and Bakhaazi could not be located. (The enclosed "account" dated 30 March 2002 was not an account for payment. Rather, it was a "Statement of Monies", recording amounts received and paid by AAC.[12])

27 DH in turn responded in writing, following which Professional Standards spoke to Aloe, who was not willing to put any proposal for settlement of the issues. As a result, Professional Standards concluded that "reasonable attempts had been made to settle the dispute" but without success, and advised DH by letter dated 12 May 2003[13] that he was entitled to refer the dispute to the Tribunal.

28 It is appropriate at this point that we set out the relevant provisions of the 1996 Act.

The 1996 Act

29 Division 1 of Part 5 of the 1996 Act dealt with disputes between clients and practitioners. The term "dispute" was very broadly defined by s.122(1), to include -

(b) a claim that a person has suffered pecuniary losses as a result of an act or omission by a legal practitioner or firm in the provision of legal services to the person, other than loss in respect of which a claim lies against the Fidelity Fund;

(c) any other genuine dispute between a person and a legal practitioner or firm arising out of, or in relation to, the provision of legal services to the person by the practitioner or firm."

30 To initiate "the dispute resolution process" provided for by the Act, the client had to lodge -

"a written request.... setting out the details of the dispute and the name and address of the legal practitioner or firm to whom the dispute relates."[14]

In the case of DH, the request was constituted by his completing a document entitled "Complaint Form", published by the Professional Standards section of the Law Institute.

31 In the section of the form headed "Cause of Complaint", DH ticked boxes the effect of which was to make the following statement:

• receive an apology;

• have the practitioner disciplined;

• have the fees waived or reduced; and

• receive financial compensation."

The Complaint Form thus made clear that DH was complaining about misconduct - hence the stated desire to have the practitioner disciplined. The Form proceeded to describe, in detail, the conduct complained of and concluded as follows:

"Therefore [AAC] is liable to pay the financial loss, which I have suffered, under fair trading legislation because of Mr Bakhaazi's fraud conducts (sic)" (emphasis added).

A number of items of loss were specified, totalling $1,279.08.

32 Receipt of the complaint form (dated 20 March 2003) obliged the Institute -

• to advise AAC of the request for resolution of a dispute (s.123(6));

• to try to settle the dispute (s.126(1)); and

• if satisfied, after reasonable attempts to settle the dispute, that the parties could not reach agreement - to give written notice to each party and the Legal Ombudsman (s.128(1)).

33 Having received the latter notice, DH was entitled under s.128(2) to refer "the dispute" to the Tribunal, by lodging with the Registrar a written referral and the prescribed fee. The dispute had then to be referred for conciliation (s.128(4)). Conciliation took place but was unsuccessful. By s.132(b) the Tribunal was then obliged to "hear and determine the dispute".

34 Under s.133(1)(a), the Tribunal had power to make a "compensation order", that is -

"an order that the legal practitioner or firm pay to the client as compensation a specified amount not exceeding $15,000 within a specified time."

The Tribunal was also empowered, by s.133(1)(f), to make "any other order the Tribunal thinks fit."

The statement of case

35 The Tribunal advised DH[15] that, as the dispute had not been resolved at conciliation, it was -

"necessary to prepare a document setting out your claim against the legal practitioner."

Arrangements were subsequently made for counsel assisting the Tribunal to draft - in consultation with DH - what became the statement of case, as we have described it.

36 As noted already, the statement of case alleged that DH had been threatened and coerced on 21 September to accept AAMI's offer of settlement; and further alleged that Bakhaazi had pressured DH to settle at the final hearing, in circumstances which prompted DH to advise Bakhaazi that he would be making a complaint to the Legal Ombudsman. The statement of case also contained the following section:

16. The legal practitioner broke the promise referred to in paragraph 3 herein, in accepting $650 from AAMI considering the fact that the shortfall between the client's initial claim and AAMI's highest offer was only $200.

17. The legal practitioner manipulated Mr Fanning in persuading him to state that $1425 was a reasonable offer as the client still considered that he was entitled to a refund on the residual registration and the salvage when Mr Fanning had earlier said that the client's net loss was $1900.

18. The legal practitioner attempted to deceive the client by stated (sic) that the loss of $1900 included the residual registration and salvage. In fact, in that day Mr Fanning had earlier stated that the assessment of $1900 did not include residual registration and salvage.

19. The legal practitioner failed to arrange for Mr Fanning to appear on 21 September resulting in an adjournment of the case and the incurring of costs.

20. On 21 September the legal practitioner insisted the client could not proceed to court on that day without Mr Fanning and insisted that the client accept responsibility for the adjournment. He used the costs of the adjournment to threaten and coerce the client for four hours to accept AAMI's offer which at that stage was $1175 plus costs. The legal practitioner finally agreed to pay the costs of that day."

37 Consistently with DH's Complaint Form, these were complaints about the conduct of Bakhaazi. The statement of case concluded with a separate section, entitled "Loss", which alleged that "as a result of the legal practitioner's acts or omissions" DH had lost:

"21(a) $475.00: being the shortfall between the assessed loss of $1,900.00 and the amount recovered, $1,425.00.

(b) $126.50: being the cost of the assessor's report which the legal practitioner should have included in the costs to be paid by AAMI.

(c) $200.00: being the amount of the client's income loss for the adjournment called by AAMI on 21 May 2001.

(d) $200.00: being the amount ordered by the Court as the client's income loss for the adjournment on 24 July 2001. This amount was never forwarded to the client by the legal practitioner.

(e) $200.00: being the amount of income loss by the client on 21 September 2001 as the legal practitioner failed to arrange for Mr Fanning to appear and refused to proceed to court without Mr Fanning.

(f) $277.58: being interest on the loss of $1,900 from the date of the accident, 30 October 2000 to 30 November 2001, calculated at 13.5%."

38 The statement of case concluded with a section resembling the prayer for relief in a pleading, as follows:

B. Compound interest of $1479.08 from 30 November 2001 to the date of the hearing. (If the date of the hearing is on 30 November 2003 the compound interest will be $426.31.)

C. Any other or further orders as the Tribunal thinks fit."

The Tribunal hearing

39 The matter came on for hearing before the Tribunal on 10 March 2004. The Tribunal was constituted by its Deputy Registrar. DH represented himself. Counsel appeared to assist the Tribunal, and Mr Rice appeared to represent AAC.

40 At the outset, counsel assisting the Tribunal explained the genesis of the statement of case:

"... [T]hese particulars were not actually finally drafted by the Tribunal, they are [signed] by the client and that resulted from the fact that I was briefed to draft these particulars and I did do several drafts and between the client and myself we were unable to come to an agreed set of particulars. So that's why these particulars are in the form they're in and there are parts of the particulars which I could not agree on behalf of the Tribunal as being appropriate.

... I probably should as a preliminary point, if I could, draw your attention to 21(c), that's really the only one."

41 As appears from [37] above, paragraph 21(c) related to the claim for loss of earnings as a result of the adjournment on 21 May 2001. Counsel assisting argued, and the Tribunal ruled, that this claim was outside the Tribunal's jurisdiction because it had not been mentioned in the Complaint Form. This ruling was upheld by the Full Tribunal. DH seeks to challenge that ruling on this appeal.

42 After preliminary submissions, counsel assisting called DH to give evidence. The evidence he gave was consistent with the matters set out in the statement of case. He was cross-examined by Mr Rice. We will refer later to some aspects of the cross-examination.

43 Following the conclusion of the evidence, Mr Rice for AAC made a no-case submission. He argued that, as to the shortfall of $425 between the amount claimed and the settlement amount, this was an impermissible "collateral attack on a court order made by consent". As to the other loss claims, counsel argued that there was no evidence that DH had suffered any loss.

44 In his submission, counsel assisting agreed that there was no case to answer except in relation to claims (d) and (e). As to those matters, counsel submitted that evidence had been given which required an answer.

45 The Tribunal upheld the no-case submission. Before doing so, the Deputy Registrar said:

"I won't trouble you, Mr He, this is essentially an argument of law as to whether the elements of your case has been made out. If I rule that they have then it will be up to the legal practitioner to present his case. If I rule the elements of your case have not been made out then the matter will be at the end of that. Do you understand?---Not quite well."

46 The Deputy Registrar then stated that he would be looking "at what evidence has been given as against what needs to be given, in terms of proving each element." The Tribunal proceeded to consider each of the claims and concluded that there was no evidence of any loss. The Tribunal said:

"On the basis of the lack of required evidence I find that the client has failed to make out his case and the dispute will be dismissed accordingly. I comment in passing that the client did give evidence than an offer of $1600 was made by AAMI and that it was recommended by the legal practitioner that he accept this offer and that the client rejected the offer. This was before matters came to court."

47 The same remark was contained in the published reasons for decision. It is not apparent to us how the rejection of the earlier offer was relevant to any of the issues raised by the complaint.

The appeal to the Full Tribunal

48 Under s.167 of the 1996 Act, DH had a right of appeal to the Full Tribunal. The powers of the Full Tribunal were set out in s.169. Under s.169(1)(a), the Full Tribunal was to hear the appeal "by way of a re-hearing". At the same time, s.169(4) declared that an appeal to the Full Tribunal -

"is not required to be conducted as a hearing de novo."

49 The Full Tribunal was given power to make any order which the Tribunal itself could have made, and to make an order for costs under s.169A.[16] On the appeal hearing, the Full Tribunal could -

"(a) have regard to the record of the hearing before the Tribunal at first instance, including the record of any evidence taken in that hearing;

50 DH's notice of appeal ran to nine pages and 19 paragraphs, but it made perfectly clear what his concerns were about the deficiencies in the Tribunal's hearing and decision. His first set of grounds appeared under the heading "Fairness of the Procedure". The notice contended that the Tribunal had failed to apply s.407 of the 1996 Act, which is headed "Duty to act fairly". The section provided:

"The Tribunal must act fairly and according to the substantial merits of the case in all matters before it."

"... the Tribunal dismiss[ed] my complaints before allowing ... the counsel of the Tribunal and myself to cross-exam [sic] the legal practitioner and tender my evidences. The Tribunal did not given me enough and reasonable opportunities to provide evidences, which may be the evidence he required."

"The Tribunal ignored all of my complaints about the legal practitioner's misconducts in my statements, which is drafted by [counsel assisting], from paragraphs 16 to 20."

52 The notice of appeal went on to point out, quite correctly, the breadth of the definition of "dispute" in the 1996 Act; the general principles of professional conduct set out in s.64 of the Act; and the definition of "misconduct" set out in s.137 of the Act. The notice of appeal then listed, in similar terms to the statement of case itself, the instances of misconduct which DH had expected the Tribunal to deal with.

53 When asked by the Full Tribunal to "concentrate on what you say was the fault in the previous Tribunal's reasons", DH referred to s.407 and said:

"But... the Tribunal only deals with part of [the complaint], that's the minor thing. The main dispute for my complaint brings to the Tribunal is about the misconduct of the solicitor but the Tribunal didn't deal with it at all."[17]

"The Deputy Registrar ignore all of my complaints in relation to the solicitor misconduct. The misconducts of the solicitor are the fundamental of my complaint. If I haven't believed that my loss was caused by the solicitor's misconduct I wouldn't have complained at the first instance."[18]

"... [T]he Deputy Registrar ignored the important part of my complaint, the misconduct of the solicitor. He didn't deal with it at all, this is substantial of my complaint. He didn't mention [it] in his decision at all. I think that's not fair.

... I wonder whether that is because the Deputy Registrar doesn't have the authority or power to deal with the solicitor's misconduct. If he doesn't have the authority he should let me know or point out in his decision rather than ignore my complaint about the solicitor and misconduct and dismiss my complaint. I don't believe that the purpose of the Tribunal is set out."[19]

55 Various responses were made to this submission. First, the Deputy Chairman of the Full Tribunal said, in effect, that the Tribunal had dismissed the allegations of misconduct on the merits:

"[C]learly the Deputy Registrar did not accept that you were pressured or you settled the case because of improper pressure from the barrister or your solicitor. The Deputy Registrar decided otherwise. Now, that's - you're not happy with that and you don't agree with that decision on his part, but that's not for this Full Tribunal to - do, you know the phrase 'second guess'? To come up with a difficult different factual conclusion. It was open to the Deputy Registrar to reach that conclusion, that you didn't settle because of pressure, you settled because in the end, after considering everything, they were the instructions you decided to give your solicitor. Now I think I can speak for the other members of the Tribunal, that's something we can't go back on again. That is reconsidering the Registrar's thinking, not the reasons, not demonstrating a fault or mistake in his reasons."[20]

"... the Tribunal thinks that we can infer from the reasons given by the Deputy Registrar that he found there was no manipulation or improper conduct on the part of the solicitor in his dealing with the independent valuer."

On our reading of the transcript of the Tribunal hearing and the Tribunal's reasons, there is nothing to suggest that the Tribunal even turned its mind to the misconduct allegation.

56 Next, counsel for AAC told the Full Tribunal that the allegations of misconduct had not been dealt with at all -

"because they were regarded by the Tribunal as ludicrous, that there was collaboration the solicitor was somehow bribed by AAMI or something to act against his interests, which is what he appears to be saying now, which is just nonsense."[21]

57 The matter was not mentioned again until after the Deputy Chairman of the Full Tribunal had ruled that DH had "failed to demonstrate fault in the reasons for decision given by the Deputy Registrar" save in respect of two of his loss claims. When DH was asked if he understood that the Full Tribunal had ruled that there was a case to answer in respect of those two amounts, he said:

"Yes that is clear but didn't mention about my point about the misconduct issue."[22]

"That's no part of this Tribunal's function. Our purpose is to decide whether there was a fault in the reasons for decision given by the Registrar in his reasons of 10 March."[23]

59 At this point, DH repeated his puzzlement that the Tribunal had dealt with the financial loss claims in paragraph 21 of his statement of case, but had not dealt with the misconduct allegations in paragraphs 16-20 of that document.[24] He pointed out that the 1996 Act "definitely covered" misconduct and said:

"If the Tribunal don't deal with this, where should I go, that's the point."[25]

60 At this point, counsel assisting submitted that the Tribunal had no jurisdiction to deal with misconduct matters.

"The client probably misunderstands the particulars of dispute in the sense that an allegation is an allegation which gives rise to a loss, it doesn't have any significance in terms of the misconduct. It's not a misconduct allegation, it's an allegation which is alleged to have given rise to a loss."[26]

The failure to deal with misconduct

61 The Full Tribunal's refusal to deal with the misconduct allegations was again emphasised by DH in this Court. On 7 July 2006, Maxwell P and Eames JA ruled that this refusal raised three questions of law.[27]

62 The first concerned the nature of the hearing conducted by the Full Tribunal. As we have noted, the appeal for which the 1996 Act provided was an appeal by way of re-hearing, with the Full Tribunal having the power to take fresh evidence. The Full Tribunal adopted the approach identified by counsel assisting, as follows:

"This appeal ... has two steps to it. First of all the appellant must satisfy this Full Tribunal of some error in the decision at first instance. That has been the normal practice of this Full Tribunal. There are authorities of the Tribunal but that is the first step and it's backed up by High Court authority. Once an error has been discovered it is then for the Full Tribunal to determine how and in what form a re-hearing should take place. But that first hurdle is the important one."[28]

63 In its reasons, the Tribunal referred to two previous decisions of the Full Tribunal as supporting this approach. In Nicholas O'Donohue & Co v Maluk,[29] the Full Tribunal said:

"We should say at the outset that a person is not entitled to have a re-hearing of an appeal simply because he thinks the Registrar was wrong in a decision he gave. He has to show some error of law or something which vitiates the decision below."

64 In Shulkes Ross v Kourlas,[30] the Full Tribunal said:

"The Registrar was clearly entitled to reach the conclusions he reached. His duty was to decide where the truth lay and he did decide where the truth lay. His conclusion cannot be re-investigated simply because the appellant does not agree with it. The appellant cannot appeal on the mere ground that the Registrar concluded against him and in favour of the practitioner but that indeed is his only ground of appeal ... ground of appeal as stated in the Notice of Appeal, that is to say, that he does not agree with the findings of fact by the Registrar."

65 In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission,[31] the High Court said of an appeal by way of re-hearing:

"Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.

Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of re-hearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of re-hearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error."[32]

66 The question of law raised was whether the Full Tribunal made a jurisdictional error, that is, mistook its appeal jurisdiction, first by requiring DH to point to some error on the face of the Tribunal's reasons, as a pre-condition of the Full Tribunal embarking on a re-hearing; and secondly by purporting to limit the re-hearing to those matters in respect of which such error was shown. By way of contrast, when this Court hears an appeal from a decision of the County Court, (which is an appeal by way of re-hearing) the Court conducts a full re-hearing, examining all of the issues raised and all of the evidence given before the Court at first instance and, if necessary, receiving fresh evidence. Having done that - and not before - the Court of Appeal decides whether there is error in the decision below. If there is, the Court of Appeal can then exercise its "appellate powers" to make a different order in the proceeding.

67 In our view, the Tribunal did mistake its jurisdiction. DH was entitled to a re-hearing without preconditions. An appeal by way of re-hearing is a full re-hearing of the matters dealt with at first instance. The Full Tribunal was obliged to examine all of the evidence which was before the Tribunal and all of the claims for loss made by DH, and then decide for itself whether, on that evidence, the conclusions arrived at by the Tribunal were correct or not.

68 The decisions of the Full Tribunal relied on by counsel assisting should no longer be followed, as they are not correct in law. Contrary to what was said by the Full Tribunal in Nicholas O'Donohue & Co. v. Malook,[33] a person is entitled to have an appeal by way of re-hearing because he thinks the Tribunal was wrong. Of course, to succeed in the appeal he will need to show that the Tribunal at first instance was wrong, but it is not correct - as the Full Tribunal said in that case - that the appellant must first "show some error of law or something which vitiates the decision below". The appeal for which the statute provides is an appeal by way of re-hearing, not by way of judicial review for error of law.

69 Likewise, contrary to what was said by the Full Tribunal in Shulkes Ross and Kourlas,[34] the appellant can appeal on the ground that the Registrar concluded against him. As we have said, the appeal will succeed only if the appellant shows that the Registrar (constituting the Tribunal at first instance) fell into error in so concluding. But, in order to make good that proposition, the appellant is entitled to a re-hearing without preconditions.

Failure to address complaints of misconduct

70 The second question of law was whether the Full Tribunal fell into error in ruling that it had no jurisdiction to address the misconduct complaints. DH's question 10 asks:

"Did the Full Tribunal err in law in holding to the effect that the LP Tribunal had no jurisdiction to deal with [AAC's] unsatisfactory conducts and misconducts raised by the... complaint?"

His question 13 raises the same point in a different way, namely, whether the refusal to deal with the misconduct allegations was a breach of natural justice.

71 In our view the Full Tribunal also fell into error here, in ruling that it had no jurisdiction to deal with the allegations of unsatisfactory conduct and misconduct raised by the complaint. As counsel assisting told the Full Tribunal, the allegations were not allegations of misconduct as such, but allegations of misconduct which DH said had given rise to loss.[35] (As we have seen, that is exactly how DH himself had put it in his Complaint Form). Accordingly, the allegations of misconduct had to be investigated, as they were at the heart of the "dispute" which had been referred to the Tribunal. That an investigation of the misconduct allegations was relevant and necessary was implicitly acknowledged by the Full Tribunal itself, in its statements that the Tribunal at first instance must be taken to have considered and rejected the allegations of misconduct.[36]

72 At one point, counsel assisting told the Full Tribunal that he had tried without success to explain to DH "the distinction between conduct and disputes". Presumably, this was a reference to the fact that disputes between clients and practitioners were dealt with by Division 1 of Part 5 of the 1996 Act, whereas complaints about practitioners' conduct were dealt with under Division 2 of the 1996 Act. Whereas a dispute was notified by a written request in accordance with s.123(1), a complaint about conduct was governed by s.140. Different procedures existed for dealing with a dispute on the one hand and a conduct complaint on the other.

73 As we have pointed out, this was not a conduct complaint as such. DH would be under a misapprehension if he thought now that he could pursue a misconduct complaint as such. What DH brought to the Tribunal, and was entitled to have investigated, was a dispute falling within Division 1 of Part 5, in which DH alleged that the conduct of the solicitor, which he characterised as misconduct, had caused him loss. What he alleged to be misconduct by the solicitor had therefore to be investigated if the Tribunal was to discharge its function according to law.

No case to answer

74 The further question of law was whether the Full Tribunal denied natural justice to DH by upholding the no-case ruling made by the Tribunal in relation to paragraphs (a), (b), (c) and (f) of the loss claim. There is a related question of statutory interpretation, as to whether, in view of the statutory duty of fairness imposed by s.407, and the requirement to act "according to the substantial merits of the case," Parliament can have intended that the Tribunal and the Full Tribunal should have power to entertain and uphold a no-case submission.

75 In our view, the Full Tribunal did fall into error in upholding the Tribunal's no-case ruling. It is unnecessary to decide whether the existence of an implied power in the Tribunal to entertain and uphold a no-case submission can be reconciled with the statutory duty of fairness imposed by s.407 and the requirement to act "according to the substantial merits of the case". Assuming that the implied power exists, it must be sparingly exercised by a tribunal hearing a complaint by an unrepresented person against a legal practitioner.

76 In our view, the decision of this Tribunal, upheld by the Full Tribunal, to entertain and uphold a no-case submission was not a decision reasonably open in the exercise of (what we assume for this purpose was) the discretion available to the Tribunal. There was material before the Tribunal warranting investigation and, in our view, this could not reasonably have been regarded as a case in which it was proper to entertain a no-case submission.

77 Self-evidently, in our view, a complaints jurisdiction such as this must be exercised in such a way as to maximise the prospect that, when the case is over, the complainant will feel that that he/she has been given a full and fair opportunity to ventilate the complaint. A ruling which denies the complainant the opportunity to question the legal practitioner, about the very matters which are at the heart of the complaint, is calculated to achieve exactly the opposite, and that is what occurred here. As a result of the upholding of the no-case submission, DH has been left with an understandable sense of injustice. For reasons he cannot understand, he was denied the opportunity to question AAC about the very matters which he alleged had caused him loss.

The "no jurisdiction" ruling

78 Question 3 is in the following terms:

"Did the Full Tribunal err in law in holding to the effect that the appellant's claim in respect of damage of $200 on 21 May 2001 was a non-case because '[it] was not part of the complaint made to Victorian Lawyers RPA Limited and therefore does not form part of this dispute?'"

79 The question concerns DH's claim for $200 in lost wages, said to be attributable to the adjournment on 21 May 2001.[37] As noted earlier, DH was not told until the morning of the hearing that the case was to be adjourned, by which time it was too late for him to go to work. The adjournment was at the request of AAMI, which was ordered to pay $650 by way of costs thrown away. Unlike what occurred on the 24 July adjournment, AAC sought no order that AAMI pay DH's lost wages.

80 In the hearing before the Tribunal, counsel assisting submitted that the Tribunal had no jurisdiction to hear DH's claim in respect of the $200. Jurisdiction was lacking, he argued, because this particular claim had not been identified by DH in his Complaint Form. The Tribunal accepted this submission, and ruled that it had no jurisdiction. The Full Tribunal considered that there was no error in this ruling.

81 In our view, the Full Tribunal again erred in law in this respect. As counsel for AAC properly conceded before this Court, neither the Tribunal nor the Full Tribunal is a court of pleadings. But, even if proceedings before the Tribunal were conducted on the basis of pleadings, a complainant would inevitably be given leave to amend his or her statement of claim to add an additional particular of loss and damage of the kind in issue here.[38] As counsel for AAC also properly conceded, there could have been no prejudice to AAC as a result of DH being permitted to raise this additional loss claim at the hearing, or at least no prejudice which could not have been cured by an order for costs.

82 As we have already said, it is of the first importance that a consumer complaints tribunal should interpret, and exercise, its powers in such a way as to maximise the likelihood that a complainant will leave the tribunal feeling that his or her complaint has been fully and fairly investigated. The approach here adopted - of refusing to deal with one particular of loss, no different in kind from others which were being investigated - was once again calculated to produce precisely the opposite result. The ruling obviously, and understandably, contributed to DH's sense of injustice about the process.

The account for $650

83 The next question of law was whether the Full Tribunal acted on a false basis - that is, mistook the facts - when it concluded that DH was indebted to AAC in the sum of $650 such that, even if he succeeded in his claims in respect of 24 July and 21 September 2001, he could establish no loss.

84 At the beginning of his cross-examination of DH in the Tribunal, Mr Rice for AAC asked him about an account dated 7 June 2001 from AAC, addressed to DH, showing an amount of $650 payable for professional services. Mr Rice asked DH whether he received that account on 7 June. He answered:

"Yes, I get this document, I believe it is in March 2002, just after I start ..."

DH did not finish that answer, but we would infer that he was referring to the time when he had commenced complaint proceedings against the barrister.

85 Referring to the adjournment on 21 May, to which the account related, Rice continued as follows:

"And the other side wanted to adjourn it, didn't they? AAMI wanted to adjourn it?---I know that in the morning of the hearing, yes.

Yes, you were told that the other side had requested an adjournment?---Yes.

And you were told that they were paying for it?---No.

And you have never been charged any costs relating to anything that happened on that day?---No.

I tender that account, sir, which in fact later evidence in the statement of moneys will show that that was in fact received from AAMI, they paid the $650."[39]

86 Clearly, counsel for AAC wished to establish that DH had not been "charged any costs" for the adjournment of 21 May. As he pointed out to the Tribunal, AAC's Statement of Monies clearly showed that AAC had received from AAMI the $650 in respect of the adjournment. In short, AAC's case before the Tribunal was that "the $650" payable to it had in fact been paid by AAMI. That is, AAC had been fully covered for the professional costs set out in the account of June 2001.

87 Counsel for AAC once again relied on the June account before the Full Tribunal, but on this occasion a quite different significance appears to have been attached to the account. Following the decision of the Full Tribunal that there was a case to answer in relation to the two amounts of $200, Mr Rice was asked whether he wished to cross-examine DH on those matters. His response was as follows:

"No, sir, it's common ground that Mr He agreed at the last hearing that he had received an account for legal fees of $650 in June 2001 which he didn't pay."

88 As we have seen, the transcript of the Tribunal hearing suggested otherwise. First, DH had not agreed that he had received the $650 account in June 2001. He had specifically recalled receiving it in March 2002. (March 2002 was also subsequent to the letter from AAC sending him the payment of $1425, being AAMI's payment on the claim.) Secondly, it had not been suggested to DH that he was indebted to AAC in the sum of $650 for fees for the hearing on 21 May 2001. On the contrary, as Mr Rice had pointed out to the Tribunal, that account had been paid in full by AAMI at the time and hence DH had never been asked to pay it.

89 Relying on the June 2001 account, Mr Rice submitted to the Full Tribunal that it had been conceded by DH that there was a $650 account rendered "and that exceeds Mr He's claim".[40] Mr Rice summed up AAC's position as follows:

"The situation is that there is an undisputed account for $650 and his claim is $400, so he still owes $250."[41]

90 Mr Rice then called Aloe. The examination-in-chief included the following exchange:

"And Mr He has never paid the account for $650?---Mr He has never paid us anything, let alone pay that account."

Under cross-examination by DH, Aloe confirmed that the $650 -

"would have been our fees that Bakhaazi believed that - the fees that we were entitled to for appearing on the hearing on that day."[42]

91 DH asked Aloe why those costs had not been claimed from AAMI, which had occasioned the adjournment. Aloe told the Full Tribunal that there would have been a claim against AAMI but only for the fees of the barrister who, according to Aloe, had been paid for that day. (It was clear on the face of AAC's Statement of Monies that no counsel's fees had been incurred on that day. Counsel for DH appeared for the first time on 24 July 2001.) Aloe said that -

"I don't think we as solicitors get orders for costs in the Magistrates' Court when a matter is adjourned. We get some costs thrown away but unless we can establish a great amount we don't get any costs. ... And the costs that they agreed to pay were counsel's fees that were thrown away, I believe..."[43]

92 AAC subsequently acknowledged that this evidence was false. In a written "Reply to Appellant's Outline of Submissions" dated 21 November 2005 and filed with this Court, AAC stated (at [12]):

"... [O]nly now after a detailed perusal of the file has it become clear to Mr Aloe that the $650.00 for the adjournment on the 21st May 2001 representing [AAC's] costs thrown away by reason of the adjournment were costs payable to [AAC] and not costs payable for Counsel's fees as deposed to at the hearing. The file contained a back sheet addressed to Counsel to appear at the hearing on the 21st May 2001. Mr Aloe was of the belief when giving evidence that the $650 related to Counsel's fees. Mr Aloe was incorrect and mistaken as to the abovementioned costs and how they were applied. Mr Aloe attributes it to the fact that he was not the author of the file and was requested to answer after a very quick perusal of the file at the hearing. The above aside the $650.00 has been accounted to the appellant in the statement of monies and has been utilised in paying outstanding disbursements in the matter."

93 AAC was here conceding - more than 16 months after the Full Tribunal hearing - that the evidence Aloe had given to the Full Tribunal was false - mistakenly, rather than deliberately, false, but false nonetheless. Yet, as we have pointed out, it was this very evidence - and the submission advanced by Mr Rice that there was an outstanding debt of $650 - which was the foundation of the decision of the Full Tribunal to dismiss the claims.

94 In our view, this ground of appeal is also clearly made out. As we have noted, the false conclusion that DH was indebted to AAC for $650 was the foundation of the Full Tribunal's dismissal of his appeal. It is difficult to think of a clearer case for the setting aside of a tribunal decision on the basis that the facts were mistaken. This was no mere factual error. Unwittingly, the Tribunal made a fundamental mistake. It took into account an irrelevant matter.[44] This is not in any way to criticise the Tribunal. As we have said, the Full Tribunal decided the case on the basis put forward by AAC. But, in view of the concession later made by AAC - that Mr Aloe's evidence was false in this critical respect - the decision plainly cannot stand.

95 For the purposes of the appeal hearing, Mr Aloe has filed an affidavit seeking to explain how it came about that the false evidence was given. That is not a matter which we need to investigate. It is sufficient for the purposes of the appeal that the evidence was - and is conceded to have been - false. Nothing in what we have said should be taken as implying, or assuming, that the Tribunal was in any way knowingly misled, either by counsel for AAC or by Mr Aloe when he gave his evidence.

Fresh evidence

96 AAC made application for this Court to receive fresh evidence. The evidence relates to those parts of DH's claim for loss referable to his having had to give up days of annual leave in order to be at court. DH says that those unnecessary appearances were occasioned by the conduct of the solicitor, that he has lost the opportunity to enjoy his annual leave for those days, having had to take leave to be at court, and that he should be compensated. Mr Aloe filed an affidavit deposing to certain investigations he had made in recent months. His counsel sought to have this Court investigate those matters in order to be persuaded, so it was argued, that DH by his evidence had misled the Tribunal.

97 We declined to accede to that application. This being an appeal on a question of law, directed at the legal validity of the decision-making process before the Full Tribunal, we can see no basis for this Court receiving any fresh evidence of the kind adverted to. First, given the nature of an appeal on a question of law, the Court of Appeal has no role to consider the merits of the matter, that being precisely what a court dealing with questions of law cannot and does not do. Secondly, it would in any case be impossible for this Court to form any view on the merits in relation to the complainant's relevant claims for loss. Thirdly, this was a topic which was ventilated in the Tribunal and there is nothing to show that these investigations could not have been undertaken before the Tribunal hearing.

98 In the event, having taken instructions, counsel for AAC acknowledged that the course proposed would have involved the Court of Appeal sitting as if it were the Full Tribunal, with the powers of a tribunal of fact. He conceded that that would not be an appropriate course. For the reasons given, we share that view.

Conclusion

99 For these reasons, we uphold DH's appeal on each of the grounds discussed above. The decision of the Full Tribunal must be set aside and, in accordance with the applicable transitional provisions, the matter must now be remitted to the Victorian Civil and Administrative Tribunal for hearing and determination in accordance with law.[45]

100 We would re-affirm what was said by Maxwell P and Eames JA in their reasons for judgment dated 7 July 2006,[46] that the prospect of a re-hearing cannot be an attractive prospect for anyone involved, given that the complaint relates to events which occurred in 2001, and given the amount of time already given to these issues and the inevitable stress and anxiety for all concerned.

101 As foreshadowed in those reasons, the matter was referred to the Legal Services Commissioner by the Court. By letter dated 4 September 2006, the Commissioner advised that she had no jurisdiction to intervene in this matter, the process prescribed for dealing with the dispute having been completed before she took up office.

102 We urge the parties to consider once again the possibility of a negotiated settlement. Because of the Tribunal's errors of law, the dispute resolution process has failed and it must begin again. But it must surely be in the interests of both parties to avoid that adversarial course if at all possible.

103 Accordingly, the order of the Court is:

Decision of the Full Tribunal made 6 July 2004 set aside.

The matter be remitted to the Victorian Civil and Administrative Tribunal for hearing and determination in accordance with law.

104 Mr He applies for an order that, he having succeeded in the appeal, the respondent should pay his costs of the appeal. There is nothing said against that by counsel for the respondent. In our view, he is entitled to an order that the respondent pay his costs and expenses of the appeal. Mr Scriva for the respondent seeks a certificate under the Appeal Costs Act, given that the decision of the Tribunal has been set aside. In our view it is proper that there be such a certificate.

105 Mr He draws attention, properly, to an order for costs made against him on 24 November 2005. That was the original hearing date of the appeal, which was vacated because the Court then sitting decided that the notice of appeal did not comply with the Rules. The Court made an order striking it out, giving Mr He leave to apply at a later date for leave to substitute appropriate paragraphs. The Court as then constituted ordered that DH pay the respondent's costs of that day.

106 Mr He has asked whether this Court is able to deal with those costs and, in particular, whether they are covered by the order we have made in his favour for the costs of the appeal. The 24 November costs order is unaffected by the order that the costs of the appeal be paid. This is not a case where the costs of an earlier hearing have been reserved for determination at the final hearing. Had that been the case, it would have fallen to this Court to decide who paid those reserved costs, but that did not occur. The Court on that day, sitting as the Court of Appeal, made an order for costs and that order stands. It will proceed to taxation in the ordinary way, unless agreement can be reached. The same is true of the order for costs which we today make in Mr He's favour.

---

[1] Since repealed and replaced by the Legal Profession Act 2004 ("the 2004 Act").

[2] [2006] VSCA 150.

[3] As appears from paragraphs [34] and [39] below, this document - headed "The client states" - was prepared for DH by counsel assisting the Tribunal.

[4] AB A19.

[5] Set out in paragraph 21(c) of the statement of case - see [37] below.

[6] Paragraph 21(d) of the statement of case - see [37] below.

[7] AB A22.

[8] AB B28 at [9].

[9] Paragraph 21(e) of the statement of case - see [37] below.

[10] AB B5.

[11] AB B12.

[12] AB B10.

[13] AB B22.

[14] Section 123(1).

[15] Letter dated 2 July 2003 - AB B24.

[16] Section 169(1)(b).

[17] T25.

[18] T27-8.

[19] T30-1.

[20] T34-5.

[21] T37.

[22] T64.

[23] T65.

[24] Set out at [37] above.

[25] T66.

[26] T66 (emphasis added).

[27] [2006] VSCA 150.

[28] T3.

[29] T0007 of 1999 at 4.

[30] T0206 of 1999.

[31] [2000] HCA 47; (2000) 203 CLR 194.

[32] At 202 [13]-[14] per Gleeson CJ, Gaudron and Hayne JJ.

[33] Supra.

[34] Supra.

[35] T66.

[36] See [55] above.

[37] See paragraph 21(c) of the statement of case at [37] above.

[38] State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146.

[39] Tribunal transcript T31-32 (emphasis added).

[40] T64.

[41] T70.

[42] T76.

[43] T76-7.

[44] cf. Re Minister for Immigration; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [9] per Gleeson C J and at [54] per McHugh and Gummow JJ.

[45] Legal Profession Act 2004 (Vic) Schedule 2, 6.1

[46] [2006] VSCA 150 at [109].