Perkins v Victorian Bar Inc & Anor [2007] VSCA 107

2 By a summons dated 4 April 2007, David Anthony Perkins, who is a legal practitioner, seeks leave to appeal against the judgment of Smith J of 21 March 2007 dismissing his appeal against the order of a Master made on 14 June 2006. Before the Master on that day was an application by the respondent, the Victorian Bar Inc, made pursuant to Order 23 for a stay of the applicant's proceeding against it or, alternatively, judgment in its favour. The Master dismissed the applicant's proceeding against the respondent by which he sought relief in the nature of mandamus or certiorari or prohibition in respect of a finding of the Legal Profession Tribunal ("the Tribunal") on 21 December 2004 of misconduct on the part of the applicant contrary to s 137 of the Legal Practice Act 1996. In the event, the Tribunal suspended the applicant's practising certificate until 21 March 2005 and ordered him to pay the respondent's costs in the amount of $30,000.

3 The relevant circumstances leading to the finding of misconduct against the applicant may be briefly summarised. On 26 October 2000, in the course of representing a client at the Victorian Civil and Administrative Tribunal ("VCAT"), he made an application that the sitting member ("the member") recuse himself from the hearing. In the course of that application he accused the member of, inter alia, "bigotry, unprofessional and cowardly behaviour towards [him] personally in a dishonest ... cowardly and craven way ... [and] otherwise behaving in a way which was utterly disgraceful". It seems that the basis for this outburst was the applicant's belief that, as a result of events at a hearing of a matter before the member in 1998 at which he appeared as counsel, the member demonstrated bias against him personally. In the event, the applicant was charged with contempt of VCAT. At the hearing of this charge by VCAT, his counsel offered an apology on his behalf that was taken as a plea of guilty. The applicant was convicted of contempt and fined $2,500. An appeal against the conviction was unsuccessful. The matter was subsequently investigated by the respondent and, in the result, as I have said, the applicant was charged with misconduct and was found guilty by the Tribunal on 21 December 2004. As has been noted, his practising certificate was suspended and he was ordered to pay the costs indicated.

4 As the judge below said, the applicant could have instituted an appeal against the decision pursuant to s 170 of the Legal Practice Act, which would have required him to file a notice of appeal by January 2005 and serve a copy on the respondent as soon as practicable thereafter. Instead, he instituted the proceeding by way of an originating motion on 7 March 2005, being the second last day allowable under the Rules unless an extension of time was obtained. No affidavit material was filed by the applicant in support of the originating motion. Moreover, the originating motion was not served until some 12 months later, on 7 March 2006. In the meantime, the suspension of the practising certificate had run its course by 25 March 2005 and the Tribunal was abolished by statute. Its role was effectively taken over by VCAT. As I have said, on the respondent's application the Master dismissed the originating motion and Smith J dismissed the appeal against that decision. The respondent had filed an affidavit in support of its application before the Master, but no material was filed by the applicant.

5 A number of submissions were put forward by Mr Gunst, for the applicant, in support of his claim that his Honour's decision is attended with relevant doubt and in the circumstances leave to appeal must be granted. It was first argued that his Honour impermissibly took into account, adversely to the applicant, the date when the originating motion was filed and served. In my view, it is plain that this submission is baseless. His Honour recorded those matters as part of the context and, at worst, to show that the applicant was dilatory in instituting and prosecuting the impugned proceeding. But more importantly, his Honour said that he did not take into account the applicant's conduct in relation to the Order 56 proceeding in coming to his conclusions.

6 I also reject as unfounded counsel's submission that his Honour somehow overlooked or ignored the fact that, by the time the applicant instituted the impugned proceeding, his right of appeal had expired. It is plain from his Honour's reasons that he was well aware of the time limits imposed in relation to the applicant's right of appeal from the Tribunal and that the applicant chose not to pursue it. His Honour was plainly aware that, by the time the originating motion was issued, the time for appeal had expired and so had the applicant's right to pursue it. I note for completeness that the applicant filed no material that sought to explain why he did not pursue his right of appeal.

7 There is also no merit, I think, in counsel's claim that his Honour impermissibly ignored Dey v Victorian Railways Commissioners[1]. The question before his Honour was whether it was plain that the impugned proceeding was frivolous, vexatious and an abuse of process and, for the reason he gave, he effectively concluded that it was.

8 It was next claimed that his Honour misunderstood the distinction between jurisdictional error and error within jurisdiction and that this had led him to misapply the principle in Kuek v Victoria Legal Aid[2]. It was claimed that his Honour erred in concluding that the revised grounds did not raise jurisdictional error, as distinct from possibly an error within jurisdiction. It was said that, for example, the Tribunal's failure to take into account Dr Towie's evidence would amount to a jurisdictional error invalidating its decision, as was made plain in Craig v State of South Australia[3]. But the passage on which the applicant relied does not support this contention. The observations in that passage were made in the context of constitutional limitations and the conferring of judicial power upon the administrative tribunal. Mere failure by the Tribunal to take into account a factually relevant matter does not necessarily mean that it acted outside its jurisdiction.[4]

9 I consider that none of the revised grounds goes to want of jurisdiction. It is not sensibly arguable, I think, that his Honour erred as contended for in this respect. I am of a like view in relation to the claim that his Honour misunderstood the available remedies under prerogative writs and those that can be obtained on successful appeal. The error contended for in this respect was said to be reflected in the following passage in his Honour's reasons:

But his Honour was there saying, I think, no more than that the remedies available on a successful appeal under s 170 are broadly similar to those that could be achieved here under Order 56. Importantly, it seems to me that his Honour considered that such differences in the remedies as may exist did not explain the applicant's decision to proceed under Order 56.

10 I also think that there is no merit in counsel's claim that his Honour erred in assuming that there was a discretion in the court whether or not to entertain a proceeding for prerogative writ. It is clear enough that, ordinarily, prerogative relief is not available as a matter of course, and whether the particular relief should go is a matter for the court's discretion.[5] An important consideration in this regard is, as the applicant's counsel acknowledged, whether an alternative proceeding was available to the claimant.[6]

11 I would also reject the applicant's claim that his Honour proceeded on the basis that "extraordinary circumstances" must be shown before the court will permit any prerogative action to proceed in circumstances where "some alternative right of appeal exists". What his Honour relevantly said was that the principle enunciated by Phillips JA in Kuek "should guide the exercise of the discretionary power to dismiss the originating motion in this case as an abuse of process on the ground that at its hearing it will be dismissed because the plaintiff chose not to use the statutory appeal procedure". His Honour did not say, and cannot be taken to have meant to have said, that this applies in every case where a prerogative proceeding is instituted where an appellate procedure was available.

12 I mention only for completeness that none of the above claims contended for by counsel form any of the grounds in the proposed notice of appeal before us.

13 I consider that there is some force in the respondent's submission that the statute in this case prescribes the mode by which the Tribunal's decision is to be challenged and, importantly, the forum where that is to take place, namely, the Court of Appeal. It was said for the respondent that it is impermissible for a person in the position of the applicant to say that he or she does not wish to follow that procedure but can proceed under Order 56 first to a single judge and then to the Court of Appeal. It was said that such supposed choice is inconsistent with the policy of s 170 and that this is recognised in Kuek.

14 It was said for the applicant that, if necessary, it will be contended that Kuek was wrongly decided because it imposed an unconstitutional fetter on the court's exercise of discretion upon the prerogative power contrary to Kable v Director of Public Prosecutions (NSW)[7]. There is, in my view, no basis for this claim. Kuek relevantly established that, ordinarily, unless there are exceptional circumstances, a litigant who has a right to appeal to the Supreme Court from an inferior body should not be permitted to raise for determination under Order 56 a matter which could have been properly dealt with by way of an appeal. But it is plain that the Court in Kuek considered that whether such a limitation should be imposed was a matter for the discretion of the court dealing with the issue. Nothing that was said in Kuek, in my view, contradicts what was relevantly said in Kable.

15 In the circumstances, I consider that the applicant has not established that his Honour's discretion miscarried or was otherwise attended with relevant doubt such as to warrant its reconsideration on appeal. In any event, given that the suspension of the applicant's practising certificate had run its course more than two years ago, and given that the impugned words uttered by the applicant to the member plainly amounted to misconduct, I doubt that there would be substantial injustice if the impugned decision were to remain.

16 Consequently, I would refuse the applicant leave to appeal and dismiss his summons.

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