64 This letter was never provided to, or disclosed to the plaintiff. On one view it provides some evidence that there was a retainer. As things turned out the client did adopt all that the plaintiff had done in her interests leading up to when Mr Clothier took over the Federal Court matter and thereafter progressed it on her behalf to a successful outcome. In my view there was evidence of a retainer, first contained in the original letter of complaint, the plaintiff's letter setting out all the circumstances corroborated by Mr Vasilopoulos and finally the letter of Mr Clothier dated 22 June 2005. As against this conclusion is the conclusionary assertion made by Mr Clothier that there was no contract. There was no direct evidence from his client on this question.
65 In my view steps should have been taken by the Law Institute to obtain a statement from the client concerning the events leading to the filing of a Federal Court application and the briefing of a barrister in February 2005 by the plaintiff. With respect to this latter matter, plaintiff informed the Law Institute that he was contacted by a barrister seeking a brief, the inference being that the latter was approached directly by the agent and the client in respect to the Federal Court matter.
66 It is trite to observe that to decide a dispute of fact on the papers is a near impossibility. If on a true analysis of all the facts there is a substantial dispute as to whether or not the plaintiff had a retainer with the client, that dispute could not in the circumstances be resolved by merely looking at the documents and the information that they reveal. The end result would be pure speculation. Indeed when weighing the facts on that question, on one side there is an allegation by Mr Clothier, namely the conclusionary statement allegedly made by his client that she did not have a contract with the plaintiff and on the other hand an abundance of evidence from the plaintiff supported by Mr Vasilopoulos of what occurred in relation to the progress of the Federal Court matter. Further the initial letter of complaint contains material leading to the conclusion that there was a retainer.
67 In my opinion the finding by the general manager which is underlined in the above passage was not a finding that could be made on the evidence. To say that the plaintiff, "Did not have instructions to take any of the work he undertook" is manifestly wrong. There was no way that decision maker could logically and rationally possibly come to that conclusion on the evidence. Indeed the preponderance of the evidence pointed the other way. The resolution of the dispute was done on the papers and in my view that was an impossible task in the circumstances.
68 There is authority in this state highlighting the difficulties involved in seeking to resolve disputed questions of fact on the papers. See Humphries v Poljak[27] and Petkovski v Galletti.[28] As observed by Southwell and Teague JJ in the latter case, it may be wrong to reject a party's version when it was untested by cross-examination. However, as their Honours observed each case must depend upon its own facts. Further, Deane and Gaudron JJ in Z.P. v P.S.[29] held that in the circumstances of that case, it was an error of principle to decide a matter on the papers when there were issues that had to be investigated and decided.[30] See also the observations of Brennan and Dawson JJ.[31] See generally the observations of Brooking JA in Palmer Tube Mills v Semi.[32] The failure to give a party an opportunity to test another party's version may in the circumstances be a breach of the rules of procedural fairness.
69 The procedure adopted by the Law Institute in dealing with the alleged complaint involved a finding being made which was made on the papers and which was pure conjecture.
Judicial Review-Grounds
70 Judicial Review is concerned with the decision making process. Was the process exercised in accordance with the authority which established it, in this case the Act in accordance with the law and in accordance with the principles of natural justice?
71 Upon conclusion of an investigation of a complaint the next step is the decision. Whether or not natural justice applies depends on all the circumstances. Where a preliminary filtering procedure is to be performed such as whether or not the complaint is one of substance and what should be done thereafter it is arguable that the rules of natural justice would not apply. There is a preliminary filtering process under the Act and the allegations made were not dismissed as lacking substance.
72 It follows that investigation must be performed and findings made and then the next step is the decision as to what to do.
73 If the decision made is to lay a charge before the Legal Practice Tribunal the legal practitioner has the opportunity of clearing his name. On the other hand if upon completion of the investigation a decision is made not to lay a charge but nevertheless to make a finding under s.151(3), unless the legal practitioner is given the opportunity to be heard in respect of the outcome it becomes a fait accompli.
74 In other words the investigation is completed, findings are made and a decision is made against the legal practitioner which has adverse consequences. Even though the complaint in the end is dismissed nevertheless a finding is made which is published to a complainant and also the Legal Ombudsman and reflects on the legal practitioner's professional reputation.
75 I have no doubt at all that the investigation and decision making steps require compliance with the rules of natural justice. While some investigative procedures do not require compliance with the rules of natural justice, for example the police investigating a possible crime leading to the formation of a belief that a charge should be laid, the investigating procedures laid down by the Act require the legal practitioner to provide all information to the investigating body and is obliged to provide information that may be incriminating.
76 In Murray v Legal Services Commissioner[33] the NSW Court of Appeal held that the principles of natural justice applied in respect to an investigative process and the decision making thereafter pursuant provisions of the New South Wales Legal Profession Act 1987 which is in similar terms to s.151 of the Victorian Act. Mr Riordan did not argue that the principles of natural justice did not apply in relation to the investigation or decision making process.
77 I have set out the grounds above. Judicial review is concerned with a legality of the decision making process. The grounds raise issues concerning whether the Law Institute took into account all relevant matters, that there had been a denial of natural justice in the decision making process, and an error occurred because no real complaint was made that the plaintiff had acted without instructions when acting for the client. The grounds also invoke the Wednesbury Unreasonableness Principle.[34]
78 I am satisfied that the finding made by the general manager that the plaintiff did not have any instructions to undertake any of the work that he did was wrong, it was not open to him, it could not have been arrived at on the papers bearing in mind the evidence of the plaintiff, and it was contrary to the preponderance of the evidence before the Law Institute. In other words, the inference was not soundly based. It was submitted on behalf of the Law Institute that this was not a ground for judicial review. It was submitted it was a matter that related to the merits and accordingly review as not available.
79 The narrowness of the common law jurisdiction concerning an attack on fact finding was summarised in Australian Broadcasting Tribunal v Bond [35]where Chief Justice Mason said:[36]