For the Respondent: Mr Barravecchio, Law Institute of Victoria

1 In this matter, Mr Kearney is applying for the renewal of a practising certificate pursuant to s.2.4.9 of the Legal Profession Act 2004 ("the 2004 Act"). Mr Kearney represented himself. The Legal Services Board was represented by Mr Barravecchio, he being from the Law Institute of Victoria. I was assured that the Legal Services Board had delegated its functions to the Law Institute of Victoria in this particular case pursuant to the provisions of the 2004 Act. In any event, problems concerning jurisdiction occurred to me, and I raised these with Mr Kearney at the outset. Whilst the submissions of Mr Barravecchio were helpful, the essential problem with jurisdiction was raised by me and addressed by Mr Kearney. Mr Kearney subsequently forwarded a statutory declaration dated 6 November 2006. However, it basically deals with the merits of his application and the difficulties he faced concerning original service and his lack of finance, rather than matters of jurisdiction.

2 The background to this matter is as follows:-

(A) By a decision dated 18th September 2001, the Honourable Richard Fullagar Q.C. and Members Hannebery and Kiddle, constituting the Legal Profession Tribunal, made orders in relation to Mr Kearney. That the Legal Profession Tribunal took a dim view of his behaviour is readily apparent, in essence describing his conduct as disgraceful and dishonourable, and finding that he had lied to a judge of the County Court in relation to the possession of a practising certificate. Leaving out orders that are irrelevant for the purposes of the present application, the orders made were as follows:-

"(1) That the practitioner shall not apply for a practising certificate until after 21st August 2011;

(2) That the practitioner shall not apply for a practising certificate until he has complied with the order of the Tribunal made 12th May 2000 in the matter T0067 of 2000 and with the order of the Tribunal made 7 July 2000 in the matter T0148 of 2000;

(3) That the practitioner be referred to the Supreme Court with a recommendation that his name be struck off the roll of practitioners."

(B) Pursuant to those orders, Victorian Lawyers RPA Ltd, being the entity that referred the charge determined by The Honourable Richard Fullagar and Members, applied to the Supreme Court of Victoria for an order that the name of Mr Kearney be struck from the roll of practitioners. On 7th November 2002, Smith J dismissed that application. In so doing, he specifically found that an error of law had occurred in relation to the giving of notice of the Tribunal's hearing to Mr Kearney.

(C) The application for striking off having been dismissed, it is apparent from the judgment of Smith J that Mr Kearney sought an order remitting the matter to the Tribunal for further hearing. Smith J stated as follows at paragraph 23 of his judgment:-

"It seems to me that I cannot make such an order in the proceeding that is currently before me. I have no proceeding brought by the defendant (Kearney) which seeks to challenge the decision and seeks the referral of the matter to the Tribunal. That is a matter that he will have to resolve if he wishes to do so and it may be that the Tribunal with its own procedures can accommodate him without the need for any formal application to set the decision aside."

(D) On the basis of the information before me, Mr Kearney took no further step. Whilst Smith J undoubtedly identified an error of law which persuaded him to dismiss the striking off application, Mr Kearney neither launched an appeal in relation to the decision of the Tribunal nor brought the matter back before it. Accordingly, the decision of the Tribunal of 18th September 2001 remains unchallenged and unappealed. Pursuant to it, Mr Kearney cannot apply for a practising certificate until after 21st August 2011.

(E) On or about 8th July 2006, Mr Kearney issued an application out of this Tribunal and pursuant to the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"), seeking that a practising certificate be granted to him. He completed the appropriate form. Erroneously, I raised the question of whether or not he had provided the statutory declaration required by s.2.4.9 of the 2004 Act, none being apparent, and a signed statement only being obvious. Happily, it was agreed that this was a procedural matter which could be remedied, and we moved on to the jurisdictional arguments of substance. Whilst no-one, myself included, seems to have been aware of it, the application form, with which few of us are familiar, in fact contains a statutory declaration which was completed by Mr Kearney. His signed statement, containing a letter to the Law Institute of Victoria, was an additional document. In any event, the presence or absence of the statutory declaration had no impact upon the jurisdictional arguments which were advanced.

(F) It is not being suggested that Mr Kearney has taken any previous step to challenge or overturn the orders of the Tribunal of 18th September 2001.

It is against that background that I give this ruling.

3 In essence, Mr Kearney submitted that this Tribunal is the "successor in title" to the Legal Profession Tribunal and should be able to remedy an error made by it. He emphasised that Smith J clearly found that an error had occurred in relation to the orders of 18th September 2001. Mr Kearney referred to s.119 of the VCAT Act, and the documentation accompanying his application also referred to sections 120 and 126. Essentially he argued that, if this Tribunal could not correct an error identified by Smith J, he was "in limbo" and had nowhere to turn. He emphasised the objects of the VCAT Act and of this Tribunal, and in particular the provision of speedy justice to be administered without undue regard to formality. He submitted that it would be an absurdity if this Tribunal, being the successor of the Legal Profession Tribunal, could not correct an error in law which has been identified by the Supreme Court of Victoria. Therefore, despite the ruling of the Legal Profession Tribunal, he should now be permitted to pursue his application for a practising certificate.

4 Whatever may be the objects of the 2004 Act and of this Tribunal, jurisdiction must first be established. I agree entirely with the proposition that this Tribunal is intended to render justice in a timely and cost efficient manner without undue legal formality. Those objects cannot grant to it jurisdiction which it does not otherwise have.

5 The 2004 Act was assented to on 14 December 2004. The Legal Practice Act 1996 was repealed - see s.8.1.1(2) of the 2004 Act. The Legal Profession Tribunal was abolished - see clause 8.1(1) of Schedule 2. Members of that Tribunal became Members of VCAT - see clause 8.2. Provision was made for the disposal of matters which were pending or part-heard before the Legal Profession Tribunal - see clauses 8.3 and 8.4. The present case is not such a matter. The application was issued on 8th July 2006. Clause 8.6 deals with the enforcement of orders or decisions made by the Legal Profession Tribunal before the commencement date. That does not seem to me to have any relevance to the present argument. That leaves only clause 8.5 which provides that:-

"1. If any difficulty arises in a proceeding because of the operation of this Schedule, VCAT may make any order it considers appropriate to resolve the difficulty."

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.