Plaintiff v Defendant

Supreme Court of Victoria|2007-06-26|Before: BELL J

ADMINISTRATIVE LAW - application for judicial review - decision refusing to renew practising certificate - Court's discretion to refuse relief - adequate alternative remedy - powers and jurisdiction of Victorian Civil and Administrative Tribunal - to conduct independent review on the merits - to make correct and preferable decision - includes questions of law and jurisdiction - invalidity of review decision does not affect jurisdiction - review by Tribunal an adequate alternative remedy - application for judicial review dismissed - Legal Profession Act 2004, ss 2.4.5, 2.4.12, 2.4.37 - Victorian Civil and Administrative Tribunal Act 1998, , .

ADMINISTRATIVE LAW - legal profession regulation - new national scheme - lawyer convicted of contempt of court - refusal to renew practising certificate - lawyer found not to be fit and proper person to hold practising certificate - whether decision to refuse renewal had to be made within 60 day time limit - statutory construction - "must" - time limit not intended to be jurisdictional - Legal Profession Act 2004, ss 2.4.5, 2.4.12, 2.4.37.

CRIMINAL LAW - contempt of court - lawyer refusing to answer questions for fear of reprisals - subjective and objective elements - defendant must show firmness of mind expected of ordinary person - more not expected of a lawyer - idiosyncrasies of defendant not taken into account.

1 The plaintiff, a young and intelligent solicitor, was working hard in a firm specialising in criminal law. She met a man who was one of its clients and the two formed a relationship. They were living together as husband and wife when he was murdered.

2 Two dangerous criminals were arrested and charged with the murder. Despite the risks involved, the plaintiff helped the police with their investigation. She supplied them with confidential information, which the police zealously protected because they were concerned for her safety.

3 At the trial of the accused, the prosecution called the plaintiff to give evidence. She was surprised and tried unsuccessfully to discuss the matter with the police. She answered her summons and entered the witness box, but refused to answer questions for fear of reprisals. She was convicted of contempt of court, not because she did not fear reprisals, but because the judge found she did not show the firmness of mind expected of an ordinary person. However, in view of the many mitigating factors, which the judge carefully set out, he acted mercifully. His Honour did not sentence the plaintiff to jail, but to conviction without further penalty.

4 The plaintiff was later charged with unlawful possession of a handgun and giving false evidence at a criminal investigation hearing. These charges have not been dealt with.

5 Under the Legal Profession Act 2004, the plaintiff was obliged to apply for renewal of her practising certificate, which she did. In the circumstances, that application raised important and complex issues, which the Legal Services Board took time to investigate and consider. It did not decide her application within the 60 day period specified in the legislation, but some five months later. The Board refused to renew the plaintiff's certificate. It gave reasons that were short, not very illuminating and raise certain issues.

6 The plaintiff responded by commencing two proceedings in respect of the Board's decision: an application for merits review in the Victorian Civil and Administrative Tribunal[1] and an application for judicial review in this Court.[2] In the meantime, her former certificate, and hence her entitlement to practice, is deemed to continue by the legislation.

7 At the request of the parties, two preliminary questions have been stated for my consideration.[3] Question one raises the issue whether the Board had power to refuse to renew the certificate after the expiry of the 60 day period. Question two raises the issue whether I should allow the judicial review application to go forward when the plaintiff's case can be reviewed by the Tribunal.

8 There is also a third issue. The plaintiff sought leave to amend her application for judicial review to include an additional ground. A Master of this Court refused to grant that leave, from which the plaintiff now appeals.

9 On this point, the preliminary question is stated in these terms:

Whether the Defendant's decision of 7 December 2006 to refuse to renew the Plaintiff's local practising certificate is void and of no legal effect on the ground that the Decision was not made within 60 days after receiving her application for renewal of her practising certificate.[4]

Within 60 days after receiving an application for renewal of a local practising certificate, the Board must-

(a) renew the certificate; or

(b) refuse to renew the certificate.

11 The plaintiff applied for renewal of her local practising certificate on 5 April 2006. The Board's delegate received it on 2 May 2006. Under s 2.4.12(2), the Board had to renew or refuse to renew the certificate within 60 days after 2 May 2006. Beginning on 3 May and including the 60th day, the decision had to be made by 2 July 2006. The Board did not make a decision until 7 December 2006, a little over five months after the expiry of the 60 days.

12 The plaintiff submits the Board lost its power to act under s 2.4.12(2) after the 60 days expired. She says her certificate is deemed to remain in force by virtue of s 2.4.5(3), which section we will examine later. On her submission, there is no power to refuse to renew a certificate after the expiry of the 60 day period and the deemed certificate maintains her entitlement of practice. It also follows, she submits, that the certificate remains in force until 30 June 2007, unless it is earlier amended, suspended or cancelled by the Board under Division 6 of Part 2.4 of the Act.

13 This last point is an important one. The plaintiff does not submit that, if the Board fails to renew her certificate within 60 days, she is beyond its regulatory power. If the Board thinks she is no longer a fit and proper person to hold a certificate, it can, for example, cancel her certificate according to procedures in Division 6. That Division gives the Board power to cancel certificates during their currency and specifies the procedures that must be followed in such cases.

14 The answer to these submissions lies in the scope of the powers of the Board under the Act.

The functions of the Board and its place in the national scheme

15 The Legal Profession Act 2004 was passed in Victoria as part of a national scheme for the harmonious administration and regulation of the Australian legal profession and the facilitation of a national market for the provision of legal services.[5] It arose out of the National Legal Profession Project sponsored by the Standing Committee of Attorneys-General.[6]

16 The Board is the regulator in Victoria. It was established by Part 6.2 with a number of objectives, including that of ensuring "the effective regulation of the legal profession and the maintenance of professional standards".[7] Under Part 2.4, it has the function of renewing or refusing to renew,[8] and also of amending, suspending or cancelling local practising certificates.[9] The Board has equivalents in the other Australian jurisdictions. When each of the regulatory bodies in the national scheme administers their legislation in the interests of the effective regulation of the legal profession and the maintenance of professional standards, they do so not just for their local jurisdiction, but as part of a national scheme.

17 The expression "local practising certificate" is a reflection of Victoria's participation in that scheme. A local practising certificate is one granted under our Act.[10] An "Australian lawyer" is one who is admitted to the legal profession under the Victorian legislation or its equivalent in another Australian jurisdiction.[11] An "Australian legal practitioner" is an Australian lawyer who holds a current local or interstate certificate.[12] An Australian lawyer who holds a current local practising certificate is entitled to practice law in Victoria.[13] A person cannot engage in legal practice[14] or hold themselves out as a legal practitioner[15] unless they are an Australian legal practitioner, which means they must hold a local certificate. The same procedures operate in the other jurisdictions. Thus a qualified and eligible lawyer in Victoria can practice law anywhere in Australia by obtaining a certificate from the local regulatory body, and vice versa. That is why, when a lawyer is now admitted to the profession by the Supreme Court of Victoria, it is as an Australian and not as a Victorian lawyer.

18 The provisions for granting and renewing practising certificates are in Division 4 of Part 2.4. The Board cannot grant a certificate to a person unless it is satisfied he or she is "a fit and proper person" to hold it.[16] So, to grant a certificate to an eligible applicant, the Board has to be positively satisfied he or she is such a person. The Board cannot renew a certificate to a person if it is satisfied he or she is "not a fit and proper person" to hold it.[17] So, to refuse to renew the certificate of an eligible applicant, the Board has to be positively satisfied he or she is not such a person.

19 The manner of applying for renewal of practising certificates is carefully prescribed. I need only refer to some of the provisions.

20 An application for renewal of a certificate must normally be made by 30 April.[18] Late applications can be made, but this may require the payment of a surcharge.[19] That late applications can be made will be of later significance.

21 The Board has 30 days to grant or refuse an application for the grant of a certificate[20] and 60 days to determine whether to renew one.[21] If the Board refuses to grant or renew a certificate, "it must give an information notice about the decision to the applicant."[22] It will be of later significance that no time limit is imposed in regard to that obligation.

Does the Board's power to refuse renewal run out with the 60 day time limit?

23 You saw that, under s 2.4.12(2), the Board is obliged (the word is "must") to renew or refuse to renew a certificate within 60 days after receiving an application. But the provision does not spell out what is to happen if the Board fails to do so.

24 To repeat, the plaintiff submits the Board's power to refuse to grant a certificate runs out with the time limit. She submits that compliance with the time limit is mandatory in the sense that the Board's jurisdiction to refuse to renew a certificate is destroyed by non-compliance.

25 The word "must" is imperative and has been used to impose a positive obligation on the Board. But does it follow the Board loses its power to refuse renewal in cases where the time limit is exceeded?

26 The decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority[23] specifies how the answer to that question is to be ascertained: it is necessary to identify the intended purpose of the provision as revealed by its terms interpreted in total context, that is, in the context of the legislation as a whole and its general object and purpose,[24] which, by CIC Insurance Ltd v Bankstown Football Club Ltd,[25] also includes any extrinsic materials that might shed light on that subject. This approach is adopted to ascertain the meaning of words in a statute in the first instance and not merely at some later stage when ambiguity may be thought to arise.[26] As the High Court said in Project Blue Sky Inc, "the process of construction must always begin by examining the context of the provision that is being construed."[27] In the present case, the context includes the Legal Practice Act 1996 from which the Legal Profession Act 2004 descended and the Explanatory Memorandum and Second Reading Speech relating to the new legislation.

27 The 60 day time period facilitates the operation of an administrative scheme for getting renewals done by 30 June in the given year. By s 2.4.10 applications for renewal by Australian legal practitioners "must" be made by 30 April. Here that word is certainly not used in the mandatory sense because s 2.4.11 allows later applications to be made, as I have already mentioned. The Board has to determine applications for renewal within 60 days,[28] which takes us up to 30 June. A renewed certificate stays in force for the whole of the next financial year.[29] There you have the administrative ideal: application for renewal by 30 April, renewal by 30 June and currency for the next financial year.

28 The legislation recognises the administrative ideal may not always be achieved. At one extreme is the case of someone who fails to apply for renewal by 30 June. Such a person, if still qualified and eligible, can apply for the grant of a new certificate, and it will cost them 200% of the prescribed fee.[30] That is not this case, which concerns a failure by the Board to determine a renewal application within 60 days. That takes us to s 2.4.5(3).

29 Here is s 2.4.5(3):

If an application for the renewal of a local practising certificate has not been finally determined before 1 July in the year in which it was made, the certificate remains in force, unless suspended or cancelled sooner, until the application has been finally determined.

The section thus operates where a renewal application has not been determined by 1 July. In such cases, the existing certificate remains in force. It does so "until the application has been finally determined." The section thus recognises that applications can be determined after 1 July. What kind of applications?

30 An application may have to be decided after 1 July because it was made before 30 April but was not determined within 60 days thereafter, that is, by 1 July. Or the application may have been made after 30 April and the 60 days has not yet run out. Still another possibility is that the application was made after 30 April and the 60 days has run out. The section does not distinguish between the multifarious situations that may arise. The words are general enough, if they have their ordinary meaning, to cover, at the least, all of the illustrations I have given. In each of those illustrations, the existing certificate continues in force until the application for renewal is determined, whether that is before or after the expiry of the 60 days.

31 The plaintiff would have it that s 2.4.5(3) does not imply that applications for renewal can be decided after the expiry of the 60 days. On her submission, the words "until the application had been finally determined" are intended to apply to, and only to apply to, applications made after 30 April for which the 60 day period does not run out until after 1 July. This is the relevance of late applications to which I earlier referred. The plaintiff submits I should read those words as covering only late applications not determined before 1 July but still within the 60 days.

32 I reject that submission. The plaintiff's approach splits s 2.4.5(3) into two. It treats the first half as applying to cases where the application was made before 30 April but was not decided (within 60 days) by 30 June, that is, the applicant's case. Then it treats the second half as not applying to that kind of case but rather to late applications only. The approach allows an applicant in the plaintiff's category to take the benefit of the deemed continuance of the practicing certificate that the first half provides. Then it denies the Board the power to determine applications in that very category that the second half contemplates. I do not think the section has a split personality. The section works perfectly well as a harmonious whole when its words are afforded the generality that their ordinary meaning demands. I cannot see any basis for reading them down.

33 Thus I cannot get from s 2.4.5(3) the idea that exceeding the 60 day time limit in s 2.4.12(2) means the Board loses the power to determine an application for renewal of a certificate. The indication in s 2.4.5(3) is in the opposite direction. It tells us what happens in such a case: "the certificate remains in force ...until the application has been determined."

34 Division 6 of Part 2.4 deals with the subject of granting and renewing practising certificates. If granted or renewed, a certificate entitles an Australian lawyer to practice law. Lawyers play an important role in society and the administration of justice. The Act creates a regulatory scheme for their regulation in the public interest. The fit and proper person requirement is central to the operation of that scheme. When you come for the grant or renewal of a certificate, you meet the requirement at the front gate. Before you can get a certificate, the Board has to be satisfied of a positive - that you are a fit and proper person. The Board can refuse to renew your certificate if it is satisfied of a negative - that you are not a fit and proper person. Under the Act, the Board may take into account a broad range of matters when it considers these questions.[31] The very nature of the fit and proper person requirement suggests that, in some cases, the Board may need time, perhaps longer than 60 days, to decide if it is satisfied of that positive or that negative.

35 The present case supplies a good illustration. The plaintiff refused to answer questions in a criminal trial. She was charged with contempt of court and convicted, but no penalty beyond the recording of the conviction was imposed. There were other matters of relevance to the question of renewal. The Board owed the plaintiff, as it does all applicants in her situation, a duty to observe the rules of natural justice. The Board took some months to decide it was satisfied the plaintiff was not a fit and proper person and to refuse to renew her certificate. Having regard to the issues raised by this case, I think that is understandable. There is no evidence the Board has been guilty of unreasonable delay.

36 The plaintiff concedes some cases may take longer than 60 days to determine but submits the legislation deals with this in another way. As you have seen, she submits such cases have to be dealt with under the provisions that allow the amendment, suspension or cancellation of certificates if the Board is satisfied the holder is not a fit and proper person.[32]

37 The Act gives a number of powers to the Board for dealing with applicants who might not be fit and proper persons. There is a procedure that applies where an applicant for renewal experiences a "show cause event".[33] An example of such an event is being found guilty of a "serious offence", which includes an indictable offence.[34] There is the power to amend, suspend or cancel the certificate (but that procedure does not apply to cases involving show cause events).[35] And there is the power to refuse to renew a certificate.

38 To me, these various powers show how seriously the legislation treats the requirement that the Board be satisfied about whether someone is a fit and proper person. The Board, as the regulator, and subject to the Act, is given a number of routes by which it may arrive at the necessary state of satisfaction. One is the renewal route. There are others, but they do not show the Board loses its power to refuse to renew a certificate if it cannot traverse the renewal route within 60 days.

39 As I said, the Legal Profession Act 2004 descended from the Legal Practice Act 1996. Many of the provisions of the former follow closely those of the latter. The legislative antecedents of a provision can be of assistance in showing how it should be properly interpreted,[36] and that is certainly so here. The evolution of the 2004 Act from the 1996 Act is part of the total context in which the provisions of the former, especially the renewal provisions, have to be interpreted, and I have proceeded on that basis.

40 The plaintiff points to the similarities between the 1996 and the 2004 Acts and submits the renewal provisions of the latter operate in the same way as they did in the former.

41 If you line up side by side the grant and renewal provisions of the two Acts, you can see strong similarities. Following the plaintiff's list, s 21(4) of the 1996 Act (when an application is finally determined) is effectively the same as s 2.4.5(4) of the 2004 Act. Section 26(1)(d) (when a certificate must not be granted) may be compared with s 2.4.7(2). Section 23(2) (when application for a certificate must be made) may be compared with s 2.4.10. Section 23A (paying a surcharge on late applications) may be compared with s 2.4.11. Sections 26-29 (the criteria for and the location of the power to refuse certificate) may be compared with ss 2.4.7(2) and 2.4.12. The plaintiff draws on these similarities to submit that s 29(3) (the Board must issue a certificate if an application is not refused within 60 days) shows the obligation in s 2.4.12(2) was intended to be jurisdictional.

42 The 2004 Act is not an exact likeness of its parent. For example, the general renewal scheme of the 2004 Act is different to that of the 1996 Act. You have seen the provisions of the 2004 Act that govern the renewal of practising certificates as a specific subject. The 1996 Act dealt with the subject of renewals in the context of granting certificates. Under that Act, an existing practitioner did not apply for renewal of their certificate but for the grant of a new one.[37] I do not want to make too much of this point, for such a practitioner was treated as a "renewing practitioner".[38] A new certificate issued to a renewing practitioner under the 1996 Act conferred as much entitlement to practice as a renewed certificate issued to such a practitioner under the 2004 Act. My point is that, when the concept of the renewed certificate was brought in by the 2004 Act, the 1996 provisions were reworked. This is reflected in the text and structure of the 2004 provisions and cannot be overlooked.

43 Now let me compare the 2004 and 1996 renewal provisions more closely.

44 You have already seen the 2004 provisions. To summarise, s 2.4.12(2) states the Board must renew or refuse to renew a certificate within 60 days after receiving an application. Section 2.4.12(1) is expressed in the same terms in relation to granting certificates. By s 2.4.12(3), an information notice must be given to the applicant "[if] the Board refuses to grant or renew" a certificate.

45 As for the 1996 provisions, here is s 29(2) and (3):

(2) Within 60 days after receiving an application for a practising certificate under section 23 (renewing practitioner), an RPA or the Board may give the applicant a written notice refusing to issue the practising certificate.

(3) If an RPA or the Board does not give a notice under sub-section (2) within the period specified in that sub-section, it must issue a practising certificate to the applicant.

You can see s 29(2) gave the Board discretion to give an applicant for a renewed certificate a notice of refusal within 60 days after receiving the application. Section 29(3) stated in the clearest of possible terms that, if the Board did not do so, "it must issue a practising certificate to the applicant."

46 These provisions are quite different in content and operation to the 2004 provisions. The 1996 provisions conferred a power to be exercised within 60 days and, if it was not, expressly commanded the Board to issue a certificate. The 2004 provisions confer a power to be exercised within 60 days and say nothing about the consequences of failing to do so. The differences are significant and, I think, deliberate.

47 The difference between s 29(2) and (3) of the 1996 Act and s 2.4.12(2) and (3) of the 2004 Act is not just that, after the 60 days, the former commands the Board to issue a certificate and the latter does not. Section 29(3) commanded the issue of the certificate if the Board did not give a refusal notice "within the period specified" in sub-s (2). Section 2.4.12(3) simply states that, if the Board refuses to renew (or grant) a certificate, "it must give an information notice about the decision to the applicant." It pointedly does not specify a time within which a certificate can be refused (or granted). That is the matter of significance to which I earlier referred. I think this change was also deliberate.

48 The plaintiff submits the 60 day limit for renewing certificates will have little meaning if the Board can renew or refuse to renew a certificate after the expiry of that limit. I do not accept that submission.

49 Under the 1996 Act, the 60 day limit was expressed in terms that specified the legal consequences of non-compliance: if the Board did not refuse the certificate within 60 days, it had to issue one.[39] Under the 2004 Act, the different terms adopted show the function of the 60 limit is now chiefly administrative - to "encourage" timely decisions, as I think the Explanatory Memorandum[40] accurately put it. The deemed continuation of the certificate, pending a renewal decision, deals with the consequences of non-compliance.[41]

50 This does not mean the Board can ignore the 60 day limit with legal impunity. The clear legislative expectation is that renewal decisions will be made within that specified time. There are very good reasons for that expectation. It is undesirable in the practitioner's interests that the time be exceeded. An individual practitioner has every right to expect that the time limit specified in the Act will be met. But even more importantly, practitioners provide legal services to members of the public and interact with a range of people in the legal industry. It is therefore undesirable in the public interest that the time be exceeded. Many persons - clients, judicial officers, court officials, other practitioners and professionals, parties in litigation, creditors, to name just a few - are potentially affected by delay and can reasonably expect renewal decisions to be made within the specified time. The question I am addressing in this judgment is whether, in the circumstances of this case, which do not involve unreasonable delay, the Board's power to refuse renewal runs out with the time limit. Whether the Board, in circumstances that do involve unreasonable delay, could resist an application for the enforcement of the time limit is an entirely different question.

51 I therefore decide that the Board's refusal to renew the plaintiff's practising certificate was valid even though it was made after the expiry of the 60 day time limit in s 2.4.12(2) of the Legal Profession Act 2004. This preliminary question must be answered no.

52 On this point, the preliminary question is stated in these terms:

Whether this proceeding ought to be dismissed on the ground that each of the grounds for review set-out in the Plaintiff's Originating Motion dated 13 February 2007 will necessarily be addressed by virtue of the fact that the Victorian Civil and Administrative Tribunal will be reviewing the Decision.[42]

53 This question requires me to decide whether I should dismiss the plaintiff's application for judicial review because she has an adequate alternative remedy. The Board contends that I should do so. It says the plaintiff's application for review in the Tribunal is an adequate alternative remedy and her judicial review application is redundant. The plaintiff submits to the contrary.

54 I identified the scope of the discretion in my recent decision in Kwan v Victoria Legal Aid.[43] A summary of what I said will suffice.

55 The Court has discretion to refuse relief in the nature of judicial review where the plaintiff has an adequate alternative remedy. The starting point is that, if the remedy is equally convenient, beneficial and effective, the court will leave the party with what has been provided. The moving party (here the Board) bears the onus of persuasion. When assessing whether an alternative remedy is adequate, many factors are relevant, but the scope of the remedy is fundamental. Therefore, in the present case, it will be necessary to consider the scope of the powers of the Tribunal.

56 Where the Court finds the plaintiff has an adequate alternative remedy, it may or may not decline to grant relief. A person has a right to apply for judicial review, and the circumstances may make the choice of the judicial forum an appropriate one. For example, the case may involve important questions of law that the court should determine, given that only it can finally do so. It will be necessary, therefore, to consider the grounds of the plaintiff's application for judicial review.

57 Finally, there may be something in the circumstances of the individual case - for example, flagrant and serious breaches of the rules of natural justice - that need to be taken into account. This makes it necessary to consider whether there are any such circumstances in the present case.

58 Before moving to the specific discretionary issues I have mentioned, I will pause to deal with an important submission of the plaintiff.

Administrative review of decisions invalid for jurisdictional error

59 The plaintiff submits the application of the discretion has to take account of the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj.[44] She submits the decision of the Board was a nullity because it was made in breach of the rules of natural justice, which is a species of jurisdictional error. Being a nullity, it could not be reviewed by the Tribunal. The proper course was for the Court to hear and determine the plaintiff's application for judicial review. If it was invalid for jurisdictional error, the Court should declare so, which would take it out of the Tribunal's hands. If it was not, depending on the discretionary decision made in relation to the other grounds, it could be left with the Tribunal.

60 Under the usual statutory arrangements, such as those in the Administrative Appeals Tribunal Act 1975 (Cth) and the Victorian Civil and Administrative Tribunal Act 1998 (Vic), an administrative decision which might be, or is, invalid for jurisdictional error can still attract the jurisdiction of a statutory review tribunal, for the tribunal's jurisdiction will usually depend on the fact that the decision was made, not on its validity.[45] Such tribunals usually have the jurisdiction to decide questions of law, as well as questions of fact, that may be involved in reviewing the decision, including questions going to their own jurisdiction.[46]

61 If the ground of jurisdictional error is breach of the rules of natural justice or something of that kind, the review tribunal will probably not need to go into the circumstances of the breach, for this will not be relevant to the independent jurisdiction it is exercising. The tribunal will consider the case on the materials before it and, in the review proceeding it conducts, will itself be bound to observe the rules of natural justice. There may be some cases where a breach involved in the original decision is relevant in some way to the exercise of the tribunal's review function, in which case the breach can be examined. I think those cases would be unusual.

62 While the decision made at first instance might be invalid by reason of the breach, and even if it is invalid for that reason, once an application for review is brought in the tribunal, it obtains an independent jurisdiction in relation to the decision, and may make whatever correct or preferable decision it thinks is appropriate. As long as it otherwise possesses jurisdiction, the tribunal's decision will be a valid and enforceable exercise of its own independent powers, and its decision will not be affected by any invalidity affecting the decision at first instance.

63 In many cases the jurisdiction of the decision-maker at first instance and the review tribunal depend on the existence of the same conditions. The former may make a decision that is said to be, or is, invalid because a jurisdictional condition has not been satisfied, whether that is a condition of fact or law. If an application for review is made to the latter, the tribunal obtains jurisdiction to review the decision, because, as I have said, the tribunal's review jurisdiction depends on the fact of the decision being made at first instance, not its validity. However, for the tribunal to make a valid decision in the exercise of its independent review jurisdiction, the condition that must be satisfied is the tribunal has the authority and indeed the obligation to decide.[47]

64 It follows that, even where the original decision may be, or is, invalid for jurisdictional error, whether on procedural or substantive grounds, a statutory review tribunal will usually have jurisdiction to hear and determine an application for review of the decision. That jurisdiction may supply an adequate alternative remedy for the purpose of the exercise of the court's discretion to refuse relief by way of judicial review by reason of that remedy.

65 Now there are general statements in Bhardwaj[48] to the effect that a decision made in jurisdictional error, such as one made in breach of the rules of natural justice, is invalid. For example, Gaudron and Gummow JJ said: "A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all."[49] Similarly, Hayne J said: "Once it is recognised that a court could set [the decision] aside for jurisdictional error, the decision can be seen to have no relevant legal consequences."[50]

66 These general statements were not offered as qualifications to the principles I have stated and do not affect their operation. In Bhardwaj the High Court was concerned with the problem whether an administrative tribunal could itself correct a decision which it conceded was made in jurisdictional error. The general statements have to be understood as being addressed to that specific problem, which the Court resolved in favour of the power of correction in the statutory setting of that case.

67 Neither directly nor implicitly did the High Court decide that a decision, arguably or even actually invalid for jurisdictional error, could not be the subject of an application for review by an administrative tribunal. Nor did it decide that such a decision, if reviewed, would have to be treated as invalid. The true position, for the reasons I have given, is that the invalidity of the decision does not affect the operation of the tribunal's jurisdiction.

68 So far as I can see, only Gleeson CJ came near to dealing with this subject. According to the Chief Justice, a decision said to be invalid for jurisdictional error could have legal consequences, depending on the statutory context in which a relevant question was asked.[51] His Honour cited Leung v Minister for Immigration and Multicultural Affairs[52] with approval.[53] Finkelstein J here gave the example of a decision that had operational effect because, on discretionary grounds, the court had refused to declare it invalid for jurisdictional error.[54] This approach necessarily implies the decision could be subject to review by an administrative tribunal.

69 I think the Tribunal has jurisdiction to review the Board's decision, even if it is invalid for jurisdictional error by reason of a breach of the rules of natural justice. Unless and until the Court exercises its judicial review jurisdiction to quash the Board's decision, and certainly if the Court refuses to grant relief by way of judicial review on discretionary grounds, the Tribunal must exercise its merits review jurisdiction in respect of the decision.

70 I therefore reject the plaintiff's submission that, since the Board's decision is being challenged on grounds that include a breach of the rules of natural justice, and therefore jurisdictional error, the Court cannot apply its discretion to confine the plaintiff to her alternative remedy in the Tribunal.

71 We can now move back to the specific discretionary issues that are raised in the present case, beginning with the scope of the powers of the Tribunal.

The scope of the powers of the Victorian Civil and Administrative Tribunal

72 Section 2.4.37(1) of the Legal Profession Act 2004 allows a person whose interests are affected to apply to the Tribunal for review of a decision of the Board in relation to a practising certificate, including a decision refusing to renew a certificate. A local lawyer is a person whose interests are affected by such a refusal and may therefore apply to the Tribunal for review of the decision, as the plaintiff has done. When conducting such a review, the Tribunal has "all of the powers of the Board in respect of the decision,"[55] and other additional powers.

73 Section 2.4.37(1) of the Legal Profession Act dovetails with s 42(1) of the Victorian Civil and Administrative Tribunal Act 1998, which tells us that the Tribunal has whatever review jurisdiction is conferred by an "enabling enactment". Section 2.4.37(1) confers jurisdiction on the Tribunal and is therefore an "enabling enactment".[56] Where a person is entitled to do so under the enabling enactment, s 48(a) of the VCAT Act allows him or her to apply for review of the decision in accordance with the specified procedures. Again, this is what the plaintiff has done.

74 Section 51(1) of the Victorian Civil and Administrative Tribunal Act specifies the functions of the Tribunal in exercising its review jurisdiction in respect of a decision. The Tribunal has all of the functions of the decision-maker, any other functions conferred by the enabling enactment and any functions conferred on the Tribunal by its own Act.

75 Section 51(2) specifies the orders that the Tribunal may make in determining a proceeding for review. It may affirm the decision under review, vary it, set it aside and substitute it with another or, alternatively, remit it to the decision-maker for reconsideration with or without directions or recommendations.

76 Under these provisions, the Tribunal possesses a statutory jurisdiction to carry out an independent review on the merits of the decision at first instance. That is a jurisdiction to stand in the shoes of the original decision-maker and make the correct and preferable decision as the Tribunal sees it, not simply to make a decision on whether the decision being reviewed was reasonable. There is no presumption that the decision at first instance was correct. The jurisdiction of the Tribunal is exercised on the materials before it, which are not confined to those that were before the original decision-maker. The Tribunal can decide all questions of jurisdiction and law, as well as fact and merit, which are raised in the application for review. These principles were first stated by the Federal Court in reference to the powers of the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975 (Cth).[57] They apply with equal force to the powers of the Victorian Civil and Administrative Tribunal under the Victorian Civil and Administrative Tribunal Act.[58]

77 Those principles apply equally to the powers of the Tribunal when reviewing a decision of the Board not to renew a practising certificate. In the present case, the Tribunal possesses a jurisdiction independently to consider all issues of jurisdiction, law, fact and merit raised by the plaintiff's application to review the decision of the Board. It is the one forum in which all of these issues can be dealt with, for it is not part of the Court's function to determine whether the plaintiff is a fit and proper person to hold a practising certificate. This is a powerful condition in favour of leaving the matter in the Tribunal's hands. I will consider the individual grounds of the plaintiff's application for judicial review. Subject to that, I think the Tribunal supplies an adequate alternative remedy for the issues raised by the plaintiff.

78 As I held in Kwan[59] in an analogous context, an applicant who is aggrieved by a decision made under the Legal Profession Act of the kind made in the present case will normally be confined to their right to seek review of the decision by the Tribunal. Unless there is something in the nature of the circumstances of the case to justify granting relief by way of judicial review, and even if a ground of judicial review is or would be established, I think the discretion to refuse relief should be exercised against the applicant. Subject to what I say next about the specific grounds relied on by the plaintiff, I think the discretion should be so exercised in the present case.

The grounds of the plaintiff's judicial review application

79 The plaintiff's judicial review application pleads these grounds:

Ground one: no jurisdiction

Ground two: breach of natural justice

Ground three: breach of natural justice

Ground four: breach of natural justice

Ground five: error of law on the face of the record

80 Ground one raises the 60 day question, which I have answered in favour of the Board.

81 Ground two alleges the plaintiff was denied natural justice because she was dealt with under the Board's general renewal powers in s 2.4.7(2)(b) when she should have been dealt with, and was being dealt with, under the show cause provisions in ss 2.4.27 and 2.4.28(1).

82 The plaintiff is saying that, because of the procedure adopted by the Board and its delegate, the Law Institute of Victoria, she could only be dealt with under the show cause provisions. When the Institute was considering whether to refuse to renew her certificate under those provisions, she supplied it with documents and information. At all times she thought the Board, when it later became involved, was acting under the same provisions and would take that material into account. She was not told the Board intended to act under its general renewal powers. She contends the contempt conviction was not a show cause event, which is plainly correct. Therefore, the plaintiff submits, the show cause provisions were not applicable, and the Board, acting under them, should have concluded her certificate should not be refused.

83 I do not think the plaintiff is here alleging that, because the case does not concern a show cause event, the Board cannot refuse a certificate under the general renewal powers. Such a contention would be untenable. The Board is obliged by s 2.4.7(2)(b) to refuse to renew a certificate if it is satisfied that the applicant is not a fit and proper person. That state of satisfaction may permissibly be based on a wide range of matters, including improper conduct that is not criminal and criminal conduct that is not indictable, that is, criminal conduct, such as a conviction for contempt of court that does not constitute a show cause event under ss 2.4.27 and 2.4.28.

84 What the plaintiff is really saying is that the procedure adopted by the Institute and the Board involved a breach of the rules of natural justice. This is because she was unfairly disadvantaged by participating in the show cause investigation that was being conducted by the Institute when, in the end, and against the plaintiff's understanding, the Board took the matter over and acted under its renewal powers without notice to her.

85 For the following reasons, I will exercise my discretion to decline relief on this ground.

86 The applicant can put all the material at her disposal to the Tribunal, whether it was previously put to the Board or the Institute, or even if the material is new. The proper place for the plaintiff to take her case is the Tribunal, for it is the one that the legislation has provided. The Tribunal has jurisdiction to conduct a full review on the merits, according to fair procedures, whatever may have been the deficiencies in the procedures adopted by the Board. Any such deficiencies will not limit the Tribunal in any way. If some aspects of the procedures adopted by the Board happened to be relevant, which seems unlikely, the Tribunal can take them into account. There is nothing in the circumstances alleged or established to suggest I should allow judicial review on this ground despite the availability of an adequate alternative remedy. I reject the plaintiff's contention that the Board "wilfully" failed to take relevant information into account.

87 Ground three alleges the plaintiff was denied natural justice because the Board made the renewal decision without having regard to information that she supplied to the Institute.

88 The plaintiff is here saying the process adopted by the Board was unfair because the information fell between two stools. She alleges the Board failed to take important information into account, information given to the Institute but not the Board, information that, according to the plaintiff, should nonetheless have been considered. She thought the Institute was conducting an investigation under the show cause provisions. On that understanding, on 8 December 2005 she gave the information to the Institute. She contends it was not taken into account by the Board when it refused to renew her certificate under its general renewal powers. She points out the Board's information notice regarding that decision does not list the information among the matters taken into account.

89 I repeat what I said under ground two. For the same reasons, I will exercise my discretion to decline relief under ground three.

90 Ground four contains a general allegation that the Board denied the plaintiff procedural fairness by failing to disclose the evidence and other material that it proposed to take into account.

91 I do not think ground four adds anything significant to grounds two and three. For the reasons already given, I will exercise my discretion to decline relief under ground four.

92 Ground five alleges the Board's decision reveals an error of law on the face of the record. In various ways, the plaintiff contends the information before, and the facts found by, the Board could not support the decision made. To deal with this ground will require a much longer stop at the station.

93 The main discretionary issues revolve around the grounds 5.1-5.4. Ground 5.5 is a relevant and irrelevant considerations ground which does not of itself justify the judicial review application going forward. Important legal issues, to which I will shortly turn, do lie behind ground 5.5. But if material was improperly considered or ignored by the Board, the proceedings in the Tribunal will ensure it will be properly taken into account. The plaintiff should be confined to that remedy. I will therefore decline to grant relief under ground 5.5.

94 To return to grounds 5.1-5.4, the legal issues behind them include the Board's application of the "fit and proper person" requirement in s 2.4.7(2)(a) of the Legal Profession Act. Before I deal with that issue, I have to say something about the Board's information notice.

95 The notice has a heading called "Material Facts''. The text under that heading begins with this paragraph:

On 9 November 2005 the Applicant was found guilty by the Supreme Court of Victoria of contempt of Court. The nature of the contempt by the Applicant was that when called as a witness by the prosecution in a murder trial on 7 October 2005 the Applicant who was then a legal practitioner holding a practising certificate refused to answer the questions that were asked of her. The Applicant refused the answer questions asked of her on the grounds of duress.

96 The Board then set out paragraph [47] of the judgment of Harper J that the plaintiff was guilty of contempt[60] and paragraph [8] of his Honour's judgment that, for that offence, the plaintiff would be convicted without other penalty.[61]

97 That is all the Board set out as material findings of fact in relation to the contempt conviction.

98 Then, as to the plaintiff being charged with indictable offences, the Board said this:

In addition to the above matters, you have been charged with the following indictable offences:

a. possession of an unregistered category E handgun contrary to section 7B(1) of the Firearms Act 1996 without a license; and

b. four charges of giving false evidence at an examination of the Australian Crime Commission.

99 That too is all the Board set out as material findings of fact on that subject.

100 The Board's notice then has a heading called "Reasons for the Decision". This is the text under that heading:

The Board refused the application by the Applicant for the renewal of her local practising certificate on the ground that she is not a fit and proper person to hold the practising certificate.

The reasons on which the Board's decision is based include the Applicant's conviction for contempt of the Supreme Court, the circumstances giving rise to and surrounding that contempt and the charging of the Applicant with the indictable offences referred to above and the nature of those charges.

101 Those two short paragraphs are the entirety of the reasons supplied under that heading.

102 With respect, the Board's notice raises a number of issues in my mind.

103 To begin with, the notice seems to be deficient. Section 2.4.12(3) of the Legal Profession Act requires the Board to give an information notice about a decision refusing to renew a local practising certificate to the applicant. An "information notice" is a notice containing the information specified in s 1.2.7. Unless the Board gives a notice specifying that information, it will not have met that requirement.

104 This is the information required by s 1.2.7:

(a) the decision; and

(b) the reasons for the decision; and

(c) the findings on material questions of fact that led to the decision, referring to the evidence or other material on which those findings were based; and

(d) whether or not the person may apply under this Act for review of the decision; and

(e) if the person may apply for review -

(i) the person or body to which the application is to be made; and

(ii) the day by which the application must be made.

105 There is no issue with paragraphs (a), (d) and (e), for the Board's notice gave that information.

106 As to paragraphs (b) and (c), there is no general rule about how much detail is required. In some cases, the reasons and findings may be shortly stated. In other cases, more detail will be required. In all cases, the Board is obliged to make the path of its reasoning plain, as was the Legal Profession Tribunal in disciplinary matters under the Legal Practice Act 1996:

It is also the case that the Tribunal was obliged to explain in its decision the path of reasoning that it adopted in order to come to the impugned decision so that the parties and the appellate court could discern if the Tribunal relevantly erred. This requirement includes the obligation to make apparent what matters it took into account for the purpose of sentencing the appellant.[62]

107 It can be an error of law for the Board to fail to meet this standard.[63]

108 The difficulty with the Board's notice is that it gives the reasons and findings in rolled up form. The reasons are expressed to "include" certain specified matters, but do not specify what the other matters are. The specified matters are the "circumstances giving rise to and surrounding" the contempt conviction and the charging of the plaintiff with indictable offences. As we shall see, those circumstances, especially as regards the contempt conviction, were complex, countervailing and required balanced evaluation. To properly apply the "fit and proper person" requirement, the Board's path of reasoning would necessarily have required that kind of evaluation. Yet the notice just sets out a rolled up conclusion; it gives us the destination arrived at by the Board but tells us little about the path travelled along to get there.

109 More importantly, as you have seen, the Board's findings of material facts refer only to paragraph [47] of Harper J's judgment on criminal liability and paragraph [8] of his Honour's judgment on sentence. Two issues arise out of the Board's reference to only those two paragraphs of Harper J's judgments. The first relates to the scope and application of the "fit and proper person" requirement. The second relates to one basis on which the plaintiff was sentenced.

110 As to the "fit and proper person" requirement, the two paragraphs referred to in the Board's notice are not, and do not purport to be, a balanced selection of Harper J's findings, either on the issue of criminal liability or sentence. They contain the reasons why the plaintiff was guilty of contempt and should be sentenced to the penalty of conviction.

111 On the issue of the plaintiff's liability for contempt, this is a point-form summary of the evidence reviewed and the findings made by Harper J:

• The plaintiff was called as a witness for the prosecution in an evidentiary inquiry[64] preceding the trial of Keith Faure and Evangelos Goussis for murdering Lewis Caine. She refused to answer any questions as she said she felt a fear of serious reprisals.

• The plaintiff and Mr Caine had met when, for legal advice, he attended the law firm where the plaintiff was working as an employee solicitor. The firm specialised in criminal law. The two formed a relationship and became de facto partners.

• She voluntarily helped the police with their investigation into the involvement of the two accused, who were associates of the deceased, in his murder. The police told her the information she provided would be treated as highly confidential.

• She unsuccessfully sought entry into the police witness protection program after Mr Faure told a senior partner of her law firm that she should stop talking to the police or, it was implied, she would be killed. She informed the police about the threat straight away. A police informer confirmed the plaintiff's account of the threat. Harper J accepted a threat of some kind had been made.

• Mr Faure and Mr Goussis were dangerous men with records for serious crimes of violence.

• The police accepted the plaintiff faced reprisals if the information she gave them was revealed. Before the arrest of Mr Faure and Mr Goussis, the police told the plaintiff they were concerned for her safety. They offered her hotel accommodation for short periods of time at police expense so she could feel safer than at home. She was classified as being at medium risk of harm.

• According to the police evidence, the threat to the plaintiff had diminished since the arrest of Mr Faure and Mr Goussis. The police were aware of no other threats.

• After the arrest of Mr Faure and Mr Goussis, someone made very frequent prank telephone calls to the plaintiff from Barwon Prison. The caller always attempted to frighten the plaintiff by remaining silent. But the police did not regard the plaintiff as being at threat while the accused persons were in jail.

• Nonetheless, after the arrest of Mr Faure and Mr Goussis, the police resisted production of documents containing the information supplied by the plaintiff because they would disclose the plaintiff's identity and expose her to the danger of reprisals from those she had informed on. They filed an affidavit in the Magistrates' Court claiming public interest immunity on this basis.

• Harper J found he was not satisfied beyond reasonable doubt the plaintiff was not in genuine subjective fear, but he also found that, in refusing to answer any questions, she failed to exhibit the firmness of mind that could be expected of the ordinary person. He therefore found her guilty of contempt of court.

112 On the issue of the plaintiff's sentence for the contempt, this is a point-form summary of the evidence reviewed and the findings made by Harper J:

• The plaintiff was a young, intelligent, hardworking solicitor.

• She had refused to answer questions because of a genuine fear of reprisals, even after the arrest of Mr Faure and Mr Goussis, especially because of the unsettling telephone calls from Barwon Prison.

• A threat had to been made towards the plaintiff, through her employer, as confirmed by a police informer.

• Because the plaintiff genuinely believed she was in real danger, she applied to join the police witness protection program, which involved a commitment to give evidence and a drastic change to the normal course of her life. The application was not successful.

• As a legal practitioner, the plaintiff had to respond to perceived threats of harm with a firmness of mind above that required of most others.

• Unless the circumstances were wholly exceptional, an immediate custodial sentence was the only appropriate sentence, as the plaintiff's offence involved interference with the administration of justice. However, her case was exceptional, and the actions of the prosecuting authorities helped to make it so.

• The police had resisted, in the Magistrates' Court, production of documents containing information supplied by the plaintiff as they identified her and their disclosure would place her in danger. On this basis, the plaintiff was entitled to think she would not be called to give evidence of this kind.

• When the plaintiff received a subpoena to give evidence at the hearing associated with the trial of Mr Faure and Mr Goussis, she contacted the police and arranged a meeting to discuss the matter. That meeting was cancelled by the prosecution. This deprived her of the opportunity to discuss her concerns with the police. A cooperative approach may have been productive.

• When the plaintiff entered the witness box, she did not know how far she would be required to go into the information that the police themselves considered should not be revealed in the Magistrates' Court proceedings.

• The plaintiff's psychological reports (which are extensive and I have read) show she was under a considerable degree of stress, which affected her capacity for making sound judgements.

• The Court regarded very seriously the failure of a legal practitioner to give evidence when called on to do so. Therefore, at least the penalty of conviction was called for.

• But there were many mitigating factors, including those already mentioned, as well as the plaintiff's youth and her absence of prior convictions. Therefore, no greater penalty than a conviction was called for.

113 When I said that the circumstances, especially as regards the contempt conviction, were complex, countervailing and required balanced evaluation, it was to the evidence reviewed by and the detailed findings of Harper J that I was referring.

114 This was an unusual case that raised difficult issues. I am conscious it was the Board's function, and is not part of mine, to determine whether the plaintiff was a fit and person to hold a certificate. But because the Board's reasons, as expressed in the notice, do not deal specifically with the evidence and findings I have identified, they leave open the possibility that the Board decided the plaintiff was not a fit and proper person because she was found guilty of and convicted for contempt. That approach, if adopted, would have involved an error of law. While contempt of court is an offence involving interference with the administration of justice, and while a lawyer who commits that offence places their entitlement to practice in serious jeopardy, a person is not a "fit and proper person"[65] to hold or continue to hold a practising certificate, as that statutory expression is properly to be understood, by reason only of having committed, and been convicted for, that offence.

115 Not all contempts are the same. Take, for example, the contempt of refusing to answer questions on oath. Someone, such as the plaintiff, may be found guilty because they did not display a reasonably expected capacity to withstand a genuinely felt fear of answering. That is serious, but more serious may be the case of someone found guilty because their professed fear was not established subjectively, let alone objectively.

116 To properly apply the "fit and proper person" requirement in a case like the present, I think it is necessary to take into account not just the fact of the conviction, but also the nature of the contempt; the entirety of the circumstances surrounding its commission, as may be revealed by the evidence before and the findings of the trial judge; the sentence imposed, including any aggravating or mitigating circumstances found by the sentencing judge; and other relevant considerations, such as the lawyer's history of practice, their remorse for committing the offence[66] and the likelihood, if any, that he or she might reoffend. Depending on the nature of the case, there may, of course, be other relevant considerations, both for and against the applicant.

117 The Board submitted it did not adopt the erroneous approach of reasoning simply from the contempt finding and conviction that the plaintiff was not a fit and proper person. The reference in the notice to "the circumstances giving rise to and surrounding" the contempt included the whole of the circumstances in Harper J's findings on criminal liability and sentence, not just the two paragraphs actually mentioned in the notice. The Board told me the Tribunal would be invited to uphold its decision on the proper basis that is applicable, not on the erroneous basis that might arguably have been adopted.

118 The plaintiff submits the Court should determine grounds 5.1-5.4 because they raise important legal questions, being the proper scope and application of the "fit and proper person" requirement in the context of someone convicted of contempt.

119 I agree the questions are important. And the need for final resolution of important legal questions is a classic reason for not exercising the discretion to refuse relief by way of judicial review.[67] If I felt the Board had made a significant legal error in this respect, and, in the review proceeding, would try to get the Tribunal to adopt the same erroneous approach, I would consider allowing the application for judicial review to go forward; indeed, I would consider stating the legal questions behind grounds 5.1-5.4 as additional preliminary questions.

120 To decide whether the Board had made a significant legal error in this respect would require a lot of time and effort. It would be necessary to look at Harper J's two judgments and the totality of the evidence before the Board. In that context, I would have to determine, if I could, what the Board meant by the "circumstances giving rise to and surrounding" the convicting and charging of the plaintiff. Only then could I address the legal basis of the Board's decision. Thus the legal question I am concerned about does not present as a pure question of law.

121 If the time and effort would be justified, I would not hesitate to deal with the question. Having regard to the Board's submissions about the stance it will take in the Tribunal on the proper legal approach, I do not think it is justified. I have every reason to think the Tribunal will deal with the plaintiff's application for review on the correct legal basis. As part of its jurisdiction to determine the plaintiff's application for review on the merits, the Tribunal has the power to decide all relevant legal questions,[68] including the ones raised by grounds 5.1-5.4. In the circumstances, I think I should leave the questions for the Tribunal to decide in the exercise of that power.

122 That brings me to the basis on which the plaintiff was sentenced.

123 In paragraph [8] of his judgment on sentence, Harper J said the plaintiff, as a legal practitioner, had to respond to a fear of harm for answering questions on oath in a manner "above that required of most others." He went on to say that the "community may properly look to legal practitioners to shoulder in this respect a responsibility greater than that of persons who do not make their livelihood from the law." His Honour did not adopt this approach when he found the plaintiff guilty of contempt. He adopted it only at the sentencing stage.

124 A difficulty arises because the reasonable person test in this branch of the law of contempt is expressed in objective terms. As Harper J decided, besides the other elements, the prosecution must establish there was no reasonable possibility that a "person of ordinary firmness of mind" would have yielded to the threat of reprisals by refusing to testify.[69] Harper J sentenced the plaintiff on the basis that something more was expected of a lawyer. With respect, I think this is clearly[70] inconsistent with the objective nature of the reasonable person test.

125 We find standards being expressed in objective terms in a number of different legal contexts. The law of negligence is based on the standard of care expected of a reasonable person.[71] The test of contributory negligence is an objective one[72] which "eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question."[73] The crime of manslaughter by unlawful and dangerous act requires proof, beyond reasonable doubt, that a reasonable person in the accused's position would have realised he or she was exposing another to an appreciable risk of serious injury.[74] In these instances, it is not permissible to take the idiosyncrasies of the individual into account. Neither the law of negligence,[75] the law of contributory negligence[76] nor the law of manslaughter by unlawful and dangerous act[77] permits such an approach, for it is inconsistent with the objective nature of the standard.

126 There is but one limited exception: in the law of negligence,[78] contributory negligence[79] and manslaughter by unlawful and dangerous act,[80] for example, where the party or accused is a child, their age can be taken into account, for childhood, it has been held, "is not an idiosyncrasy."[81] There is no exception in the law of contempt that operates to require more than ordinary firmness of mind from a lawyer who, out of fear of harm, refuses to testify.

127 The plaintiff and the prosecution appealed against Harper J's sentence. In the argument in the Court of Appeal, Maxwell P expressed doubts about the correctness of this aspect of his Honour's reasoning. For the reasons I have given, I think those doubts were justified. The appeal of the prosecution was dismissed for want of jurisdiction.[82] The plaintiff withdrew her appeal, and thereby accepted the penalty of conviction imposed by Harper J.

128 The Board did not tell me it would definitely not, in the Tribunal, rely on paragraph [8] of Harper J's judgment on sentence. Since I have come to a clear view on this question, I think it is right to express it, as I have done above. The Tribunal, however, can decide this question, along with the others it has to consider. As with those other questions, I think I should leave this one in the hands of the Tribunal, subject, of course, on all questions of law, to any appeal.

129 For these reasons I am not persuaded that grounds 5.1-5.4, or the other grounds in the application for judicial review, should be heard and determined by this Court.

130 The plaintiff submits the breaches of the rules of natural justice alleged against the Board were serious and wilful. I have already set these out. She submits the breaches operated to thwart her right to an effective and proper decision at first instance. She should not be deprived of that opportunity by being confined to her rights of review in the Tribunal, and relies on what I said in Kwan [83] in this regard.

131 I do not accept these submissions. The Board has not been shown to have acted in a manner that deserves reproach, indeed far from it. The way the Board dealt with the plaintiff's application for renewal does not make it appropriate for the Court to hear and determine the application for judicial review when she has an adequate alternative remedy in the Tribunal.

132 For these reasons I think the plaintiff's application for judicial review should be dismissed because the application she has commenced in the Tribunal supplies an adequate alternative remedy. This preliminary question must be answered yes.

133 That brings me to the final issue in this case, which can be dealt with much more quickly.

134 The plaintiff wishes to amend her application for judicial review to add a new ground six. In that proposed ground, the plaintiff wishes to contend that, in refusing to renew the plaintiff's certificate, the Board acted beyond power because, she submits, the Institute was exercising the same powers pursuant to a valid delegation.

135 The Master refused to grant the plaintiff leave to amend her application to include ground six. She now appeals against that decision.

136 The Master refused to grant leave because she considered the ground to be doomed to failure. I have considered the ground. I have doubts about its viability. But the plaintiff submits it involves disputed questions of fact, and there is a need for discovery. I have not found it necessary to express a firm view one way or the other.

137 It is enough for me to say that, even if I were to grant leave to amend to include ground six, I would exercise my discretion to refuse to grant relief by way of judicial review on this ground. It is not appropriate for resolution by this Court when the plaintiff has an adequate alternative remedy in the Tribunal. According to the scope of Tribunal's jurisdiction which I have already identified, if the delegation issue is relevant to the jurisdiction of the Board or the Tribunal, or relevant in some other way in the review proceeding, the Tribunal can hear and determine it.

138 I will therefore dismiss the plaintiff's appeal against the decision of the Master.

139 I have been required to rule on two preliminary questions and an appeal from a decision of a Master.

140 The first question raised the issue whether the Legal Services Board had to determine an application for renewal of a practising certificate within the 60 day period specified in the Legal Profession Act 2004. The plaintiff had been convicted of contempt of court and charged with indictable offences. It took the Board about five months longer than the 60 days to investigate and consider these matters, which raised difficult issues. It decided to refuse to renew the plaintiff's certificate on the ground she was not a fit and proper person to hold one.

141 An analysis of the renewal provision of the Act has revealed that the Board's power to determine the plaintiff's renewal application did not run out with the time limit. The 60 day period was not specified as a condition precedent to the jurisdiction of the Board to determine renewal applications, but rather to facilitate the operation of an administrative scheme by which renewal decisions are ideally made within that period.

142 I have therefore concluded that the Board's decision to refuse the plaintiff's application for renewal was not invalid. The first preliminary question will be answered accordingly, in the formal terms given below.

143 The second question raised the issue whether the plaintiff's application for judicial review of the Board's decision should be dismissed because, in an application commenced by the plaintiff, the Victorian Civil and Administrative Tribunal had jurisdiction to review the Board's decision. The plaintiff was convicted of contempt of court but the sentencing judge pointedly set out the many mitigating factors and, mercifully, imposed no penalty other than conviction. The criminal charges have not been dealt with. Nonetheless, in refusing to renew her certificate, the plaintiff contended the Board made a number of legal and procedural errors which invalidated its decision and made this Court the appropriate forum.

144 An analysis of the jurisdiction of the Tribunal has revealed it has the power to conduct a full and independent review of the merits of the Board's decision. That power includes the authority to decide all questions of jurisdiction, law, fact and merit associated with the decision. The Tribunal's jurisdiction is not affected by the fact that the Board's decision may arguably, or actually, be invalid by reason of the errors alleged by the plaintiff. The Tribunal has the jurisdiction to consider the issues raised by the plaintiff in the judicial review application and therefore supplies an adequate alternative remedy for the plaintiff's legal claims. It is also the only forum in which all the legal and merit issues raised by the plaintiff and the Board can be dealt with, for it is not part of the Court's function to decide whether the plaintiff is a fit a proper person to hold a practising certificate.

145 Two issues did weigh on my mind when considering whether or not to confine the plaintiff to her application in the Tribunal. First, I was concerned the Board may have adopted an erroneous view of the statutory concept of the fit and proper person. But the Board told me it would defend its decision in the Tribunal on the view that I think is proper, which I have stated. It is therefore unnecessary to go into the way the Board actually approached the matter. Second, the Board relied on one aspect of the sentencing judge's decision that, with respect, I think was clearly incorrect, for reasons which I have also stated. I think stating my clear conclusion on this aspect should be enough. Having dealt with these two points in the judgement, and been told how the Board intends to conduct its case in the Tribunal, I think the plaintiff should run her entire case on the law and the merits in the one forum, the Tribunal.

146 I have therefore concluded that I should dismiss the plaintiff's application for judicial review in the exercise of the Court's discretion because she has an adequate alternative remedy in the Tribunal. The second preliminary question will be answered accordingly, in the formal terms given below.

147 The appeal raised the issue whether the plaintiff should be granted leave to amend her application for judicial review so as to include a new ground. The Master refused to grant her that leave. I have decided to dismiss the plaintiff's appeal against that decision because I would, in any event, have left it in the hands of the Tribunal.

148 In the result, I have concluded the preliminary questions will be answered as follows:

Question: whether the Defendant's decision of 7 December 2006 to refuse to renew the Plaintiff's local practising certificate is void and of no legal effect on the ground that the Decision was not made within 60 days after receiving her application for renewal of her practising certificate.

Answer: no.

Question: whether this proceeding ought to be dismissed on the ground that each of the grounds for review set-out in the Plaintiff's Originating Motion dated 13 February 2007 will necessarily be addressed by virtue of the fact that the Victorian Civil and Administrative Tribunal will be reviewing the Decision.

Answer: yes.

149 Accordingly the plaintiff's application for judicial review in the originating motion dated 13 February 2007 will be dismissed. The plaintiff's appeal against the decision of the Master in her notice of appeal dated 16 April 2007 will be dismissed.

[1] The application was made by way of application dated 22 December 2006.

[2] The application is made by way of originating motion dated 13 February 2007.

[3] The questions were stated by order of the Master dated 11 April 2007 under r 47.04 of the Supreme Court (General Civil Procedure) Rules 2005.

[4] This is the question in paragraph 1(a) of the summons dated 5 April 2007.

[5] See the Second Reading Speech for the Legal Profession Bill 2004 in Victoria, Parliamentary Debates, Legislative Assembly, 16 November 2004, 1541.

[6] Ibid; see also the Explanatory Memorandum, Legal Profession Bill 2004 (Vic) 1.

[7] Section 6.2.3(a).

[8] Section 2.4.12.

[9] Section 2.4.21.

[10] Section 1.2.1.

[11] Section 1.2.2(a).

[12] Section 1.2.3(a).

[13] Section 2.4.2.

[14] Section 2.2.2(1) (there are exceptions that are unnecessary to mention: see sub-s (2)).

[15] Section 2.2.3(1).

[16] Section 2.4.7(1)(b).

[17] Section 2.4.7(2)(b).

[18] Section 2.4.10.

[19] Section 2.4.11.

[20] Section 2.4.12(1).

[21] Section 2.4.12(2).

[22] Section 2.4.12(3).

[23] [1998] HCA 28; (1998) 194 CLR 355.

[24] Ibid 381, 388-390.

[25] (1995-1997) 187 CLR 384, 408.

[26] Ibid; see also Network Ten Pty Ltd v TCN Channel Nine Pty Ltd ([2004] HCA 14; 2004) 218 CLR 273, 280-281.

[27] [1998] HCA 28; (1998) 194 CLR 355, 381.

[28] Section 2.4.12(2).

[29] Section 2.4.5(2).

[30] Section 2.4.9(2).

[31] Section 2.4.4(1) and (2).

[32] See Division 6 of Part 2.4.

[33] Sections 2.4.2-2.4.9.

[34] Section 1.2.1

[35] Section 2.4.21.

[36] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 366-368.

[37] Legal Practice Act 1996, s 23(1).

[38] Ibid s 29(2).

[39] Section 29(3).

[40] Explanatory Memorandum, Legal Profession Bill 2004 (Vic) 12 (Clause 2.4.12).

[41] Section 2.4.5(3).

[42] This is question in paragraph 1(b) in the summons dated 5 April 2007.

[43] [2007] VSC 122.

[44] (2002) 209 CLR 597.

[45] Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167_; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd_ [1979] FCA 21; (1979) 41 FLR 338.

[46] Re Adams and Tax Agents' Board (1976) 12 ALR 239; Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167_; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd_ [1979] FCA 21; (1979) 41 FLR 338; Drake v Minister for Immigration and Ethnic Affairs ( 1979) 46 FLR 409, 419, 429-430; Re Costello and Department of Transport (1979) 2 ALD 934; Saitta Pty Ltd v Commonwealth [2000] FCA 1546; (2000) 106 FCR 554, 575.

[47] An example may be the validity of regulations governing the decision_:_ see Re Costello and Secretary, Department of Transport (1979) 2 ALD 934; Re Jonsson and Marine Council (No 2) [1990] AATA 192; (1990) 12 AAR 323, 335-341; Saitta Pty Ltd v Commonwealth [2000] FCA 1546; (2000) 106 FCR 554, 575.

[48] (2002) 209 CLR 597.

[49] Ibid 614-615, [51] (footnote omitted).

[50] Ibid 647, [153].

[51] Ibid 604, [11].

[52] (1997) 79 FCR 400.

[53] (2002) 209 CLR 597, 604, [12]

[54] (1997) 79 FCR 400, 413.

[55] Section 2.4.37(3).

[56] See the definition in s 3 of the VCAT Act.

[57] See generally Re Adams and Tax Agents' Board (1976) 12 ALR 239; Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167_; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd_ [1979] FCA 21; (1979) 41 FLR 338; Drake v Minister for Immigration and Ethnic Affairs ( 1979) 46 FLR 409, 419, 429-430; Re Costello and Department of Transport (1979) 2 ALD 934, Saitta Pty Ltd v Commonwealth [2000] FCA 1546; (2000) 106 FCR 554, 575.

[58] McDonald v Guardianship and Administration Board [1993] VicRp 36; [1993] 1 VR 521, 528; Transport Accident Commission (Vic) v Bausch [1998] 4 VR 249, 263, 268; Davidson v Victorian Institute of Teaching [2006] VSCA 193; [5]-[15], [21], [26].

[59] Kwan v Victoria Legal Aid [2007] VSC 122, [27].

[60] R v Garde-Wilson [2005] VSC 441 (9 November 2005).

[61] R v Garde-Wilson [2005] VSC 452 (22 November 2005).

[62] Quinn v Law Institute of Victoria Ltd [2007] VSCA 122, [41] per Chernov JA; see also [33]-[34] per Maxwell P and [45]-[46] per Nettle JA.

[63] Ibid.

[64] A Basha inquiry: see R v Basha (1989) 39 A Crim R 337.

[65] See s 2.4.7(2)(b) of the Legal Profession Act 2004.

[66] In the present case, see the remarks elicited from the plaintiff's counsel in the Court of Appeal: Exhibit ZGW 37, 120.

[67] Kwan v Victoria Legal Aid [2007] VSC 122, [24].

[68] Ibid [25].

[69] R v Garde-Wilson [2005] VSC 441, [32] applying R v Abusafiah (1991) 24 NSWLR 531, 544-545.

[70] Shaw v Yarranova Pty Ltd [2006] VSC 45, [68].

[71] McHale v Watson [1966] HCA 13; (1966) 115 CLR 199, 212.

[72] Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552, 564.

[73] Glasgow Corporation v Muir [1943] UKHL 2; [1943] AC 448, 457.

[74] Wilson v R [1992] HCA 31; (1992) 174 CLR 313, 333-4.

[75] McHale v Watson [1966] HCA 13; (1966) 115 CLR 199, 213.

[76] Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552, 564.

[77] R v Besim [2004] VSC 169; (2004) 148 A Crim R 28.

[78] McHale v Watson [1966] HCA 13; (1966) 115 CLR 199, 213-214.

[79] Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552, 564, [32]; Harrold v Watney [1898] 2 QB 320, 323; McHale v Watson [1966] HCA 13; (1966) 115 CLR 199, 214.

[80] DPP v TY (No 2) [2006] VSC 494; (2006) 14 VR 430, 434.

[81] McHale v Watson [1964] HCA 64; (1964) 111 CLR 384, 397.

[82] DPP v Garde-Wilson [2006] VSCA 295, [26].

[83] Kwan v Victoria Legal Aid [2007] VSC 122, [29]-[32].

Civil and Administrative Tribunal Act 1998

Appeals Tribunal Act 1975

Court (General Civil Procedure) Rules 2005

At a glance

Court

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Judgment (196 paragraphs)

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Legislation Cited (5)

Cases Cited (12)