6 The clause is headed "VCAT may make orders of a transitional nature". Whilst that clause is quite broad, it seems to me to be giving to VCAT the power to make an order in order to resolve a difficulty that may arise as part of the transitional process. It seems to me that the difficulties envisaged would be those of what could be described as a mechanical nature. I do not see this clause as visiting upon VCAT a broad jurisdiction which it does not otherwise possess.
7 In summary, whilst Mr Kearney described VCAT as the successor in title to the Legal Profession Tribunal, and that in a general manner of speaking may be true, there is nothing to which I have been directed or which I can find in any piece of legislation that, for example, makes decisions of the Legal Profession Tribunal in effect decisions of VCAT. There is nothing to which I have been directed or which I can find that would give to VCAT the power to correct decisions of the Legal Profession Tribunal, much less overturn them.
8 Smith J stated that he could not remit the matter to the Legal Profession Tribunal for rehearing and pointed out that Mr Kearney had brought no proceeding seeking to challenge the Tribunal's decision. That, as he effectively said, was a matter for Mr Kearney. However, Mr Kearney did nothing. Section 170 of the Legal Practice Act 1996 permitted a party to appeal to the Court of Appeal on a question of law from an order of the Full Tribunal. Mr Kearney did not do this. Thus, as stated, the decision remains in place. Mr Kearney not having exercised the options that were available to him, in my opinion there is now no power in VCAT to overturn that decision. VCAT does not possess the jurisdiction to overturn an order made by the Legal Profession Tribunal.
9 Reference is made to s.119 of the VCAT Act. Firstly, that section applies to clerical errors, accidental slips or omissions, miscalculation of figures and the like. It is a statutory embodiment of the "slip rule". What occurred in the present case was far from a slip of the type referred to in s.119. It was a deliberate judgment. If it contains, or is based on, an error of law, the remedy lay in an appeal, unless the Tribunal was persuaded that it was not functus officio and that it could rehear the matter. As shall be discussed, that latter proposition seems to me to have difficulties of its own.
10 Secondly, the power of VCAT to correct an order pursuant to s.119, is, as one would expect, confined to an order "made by it". In the present instance, the order was not made by it. The order was made by the Legal Profession Tribunal. As previously stated, I do not see how VCAT can correct or overturn decisions of the Legal Profession Tribunal, and that applies equally to the scope of operation of s.119.
11 The same can be said of s.120. It permits VCAT to entertain an application for a review of an order made where the person so applying did not appear and was not represented at the hearing at which the order was so made. The fact that Mr Kearney was not present on 21st August 2001 when the Legal Profession Tribunal heard the matter does not mean that he can now apply to VCAT, being a different tribunal, for a review of the order of 18th September 2001. In any event, Order 4.18 of the Victorian Civil and Administrative Tribunal Rules 1998, specifies that an application for review of an order under s.120 of the 2004 Act must be made within 14 days after the applicant becomes aware of the order. Apart from the fact that this was clearly not done, it demonstrates the absurdity of the argument that an application could now be made pursuant to s.120. Mr Kearney was at least aware of the existence of the order when before Smith J on 10th October 2002. At that time, the abolition of the Legal Profession Tribunal was not even contemplated, much less the fact that provisions contained in the VCAT Act and Rules may, either then or at some future date, have some bearing on what was occurring.
12 Section 126 of the VCAT Act is also inapplicable. It relates to the extension of any time limit fixed for the commencement of a proceeding. Even if this were in some way applied so as to extend the time limit imposed by Order 4.18, Mr Kearney still faces the insuperable problem that VCAT cannot review an order made by the Legal Profession Tribunal.
13 The other matter concerning which I have real doubts is whether, in any event, and if the 2004 Act had never become law, the Legal Profession Tribunal could have revoked, varied or otherwise reviewed the orders made by it on 18th September 2001. It seems to me that it was functus officio, apart from any power which it may have had to correct clerical and mathematical errors and the like. Smith J said no more than that it may be that the Legal Profession Tribunal with its own procedures could accommodate Mr Kearney without the need for any formal application to set the decision aside. Apart from the fact that Mr Kearney did nothing about this, Smith J was not saying that such an accommodation could be reached. He was merely raising a possibility should the Legal Profession Tribunal's own procedures permit it.
14 I also appreciate that, in Law Institute of Victoria Limited v Louis Georges Yves Michel (No. T0211 of 2004), the Full Tribunal, chaired by His Honour Judge Dee, set aside an order of the Tribunal and granted a rehearing on the basis that the legal practitioner had not received the necessary documentation notifying him of the original hearing. Whilst this was doubtless a very practical result, I note that it was done by consent (not that jurisdiction can be conferred in that way) and that, interestingly, it was observed that the case was not to be used as any precedent and "... that the Legal Profession Tribunal has not the power to order a rehearing of its own right if it wishes, it is just that that matter was not the subject of serious or full debate". Whilst, as stated, the outcome was a practical one, I must admit to being a little confused as to the reasoning which permitted it.
15 Thus, it would seem to me that the Legal Profession Tribunal was functus officio in any event and that, unless some other arrangement could be devised, Mr Kearney's remedy was by way of an appeal pursuant to s.170 of the Legal Practice Act. It may have been that, given the findings of Smith J, the appeal would have been short-lived and the matter remitted. However, as no appeal was lodged, that is speculation.
16 In summary, in my opinion the orders of the Legal Profession Tribunal of 18th September 2001 remain in place, and Mr Kearney is accordingly precluded from applying for a practising certificate until after 21st August 2011 and until he has complied with the orders of the Legal Profession Tribunal referred to in order (2). As suggested by Mr Barravecchio, his only remedy may be to attempt to appeal, out of time, against the orders referred to, and, as suggested, possibly rely upon the provisions of the Interpretation of Legislation Act 1984 in relation to repealed legislation. Whilst I thank Mr Barravecchio for his fair and helpful suggestions in this regard, such a path does not seem to me to be entirely free of obstacles. In any event, that is a matter for Mr Kearney.
17 For the above reasons, my ruling is that I cannot entertain this application which is accordingly dismissed.