Practice and procedure - application for certiorari and mandamus under Order 56 - alternative statutory right of appeal; s.170 Legal Practice Act 1996 - jurisdictional error - abuse of process.
[3]
1 On 21 December 2004, the Legal Profession Tribunal handed down a decision concerning allegations of misconduct on the part of the plaintiff. The Tribunal stated that it found the plaintiff guilty of that misconduct, reprimanded him, suspended his practising certificate until 21 March 2005 and ordered him to pay $30,000 costs to The Victorian Bar Inc. It granted a stay of 12 months for payment of those costs and liberty to apply further as to payment.
2 The plaintiff could have considered lodging an appeal pursuant to s.170 Legal Practice Act 1996 up to 28 January 2005. If he had done so, under the rules, he would have been obliged to serve a copy of the appeal as soon as practicable after filing the notice of appeal on all persons directly affected by it. Instead, by originating motion issued on 7 March 2005 under Order 56, the plaintiff sought relief in the nature of certiorari and mandamus in relation to the above decision. This was the last day available for issuing such proceedings without obtaining an extension of time. The originating motion was not served on the first defendant until 7 March 2006, approximately 12 months later. This was the second last day available for service without obtaining an extension. No affidavit material has been filed by the plaintiff in its Order 56 proceeding.
3 In the meantime the suspension of the practising certificate had run its course by 25 March 2005. The stay on the costs order had also run its course by 16 September 2005. In the intervening period, the second defendant was abolished by statute.
4 On 15 March 2006 the first defendant filed a conditional appearance. On 26 May 2006, it applied by summons under Order 23 for judgment against the plaintiff, alternatively, a stay of the proceedings and an order that the general endorsement be struck out. The first defendant's application was heard before a Master of the Court on 14 June 2006. The application was supported by an affidavit of Christine Susan Harvey. No affidavit material has been filed on behalf of the plaintiff in respect of that application. The Master granted the application and dismissed the plaintiff's Order 56 proceedings against the first defendant. The Master ordered the plaintiff to pay the costs of the first defendant, such cost to be taxed.
5 By notice of appeal filed 15 June 2006, the plaintiff has appealed from that order pursuant to Rule 77.05. Such an appeal is a hearing de novo of the first defendant's summons.
6 The first defendant submits in support of its summons that the application of the plaintiff under Order 56 is scandalous, frivolous or vexatious and an abuse of process. It submits that the proceeding is based on an unsustainable foundation. It argues that the proceeding of the plaintiff is for discretionary relief under Order 56 in respect of matters which could have been the basis of an appeal pursuant to s.170 Legal Practice Act 1996 (the Act). It submits that, while the latter is confined to questions of law, it enables consideration of all matters that can be raised by way of judicial review under Order 56 and enables relief to be given similar to that available under Order 56. It argues that the plaintiff cannot successfully bring Order 56 proceedings in those circumstances unless there are extraordinary circumstances. For, in the absence of such circumstances, the Court will not exercise the discretion which it has to grant the relief sought by the plaintiff. It relies on Kuek v Victorian Legal Aid.[1] for this principle. The principle appears to be well-established.[2] In those circumstances, the first defendant submits that there is no sustainable foundation[3] for the proceedings brought by the plaintiff and they should be dismissed.
7 The plaintiff sought first to argue that the first defendant's case involved an unstated proposition that s.170 of the Act ousted the Supreme Court's jurisdiction to grant prerogative writs. This is plainly not its case. The first defendant relies on the principle stated in Kuek on the approach to be taken to the exercise of the Court's discretion in the plaintiff's proceeding. In response to this case, the plaintiff submits that, accepting the above principle articulated in Kuek,[4] it was qualified in relation to proceedings where the challenge made to the decision is based on jurisdictional error. Reliance is placed upon the following passage in Kuek:[5]
[4]
"16. It is important that in relying in the originating motion upon alleged errors of law on the face of the record, the appellant was seeking on his application under order 56 to raise matters that could have been agitated on an appeal under section 109 [Magistrates' Court Act] had his appeal been in time. A claim for jurisdictional error, if properly established, might be in different case, but I am not now dealing with that. In relation to alleged errors of law, the appellant was not seeking recourse to order 56 because of some alleged defect or insufficiency in the appeal permitted under section 109."
[5]
It should be noted that Phillips, JA, in the above passage did no more than reserve the issue of jurisdictional error for future consideration - presumably because there might be cases where the jurisdictional error alleged might render the decision invalid and cast doubt on the availability of the statutory appeal procedure.[6]
8 Counsel for the plaintiff also relies on the following passage from the leading case of Craig v South Australia:[7]
[6]
"If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask the wrong question, to ignore relevant material, or at least in some circumstances, to make an erroneous finding or mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."[8]
[7]
9 Counsel submits that the errors of law relied upon in this case were errors of law which had affected the exercise of the Tribunal's powers and are, therefore, jurisdictional errors and the Kuek principle does not apply. Counsel for the plaintiff also argues that they could not be canvassed in an appeal under s.170 of the Act and that, therefore, the first defendant cannot argue that the Order 56 proceeding is an abuse of process on the basis that there is a satisfactory alternative procedure.
10 To assist in the consideration of these issues, the plaintiff was given the opportunity during the hearing to prepare revised grounds which would more clearly identify the errors alleged, the part of the reasons for judgement affected by that error, which of the errors are alleged to be jurisdictional errors and the basis upon which that categorisation is made. The following statement of grounds was produced and leave given to substitute them for the grounds contained in the original Originating Motion.
[8]
"1. The tribunal proceeded on a wrong principle in that it failed to provide any or any proper reasons for its decision to impose a penalty on the plaintiff of suspension for three months. [see 19/12/04 decision at paragraph 19].
2. The tribunal failed to take into account relevant material being the unchallenged exculpatory evidence of the Plaintiff to the effect the bias submission put to Member Davis was not a personal attack but constituted a legitimate and truthful reflection upon the relationship between the Plaintiff and Member Davis and the legal consequences thereof. [see 16/9/04 decision at paragraph 58]
[9]
3. The tribunal failed to take into account relevant material being the evidence of Dr. Towie to the effect the Plaintiff was acting according to instructions in making the bias application. [see 16/9/04 decision at paragraph 32].
[10]
4. The Tribunal failed to take into account relevant material being the truth, or basis in fact, of the bias submissions. [see 16/9/04 decision generally and at paragraphs 37, 38, 39 & 45].
5. The Tribunal failed to take into account relevant material being the fact the Plaintiff did not plead guilty to the contempt charge before Judge Davey. [see 16/9/04 decision at paragraph 52].
6. The Tribunal failed to take into account relevant material being the fact Member Davis was not called to give evidence.
7. The Tribunal proceeded upon a wrong principle at law by not recognising counsel's immunity in the circumstances of making the bias submission. [see High Court in R v Ogden; Ex parte Lewis [1984] HCA 28; 153 CLR 682; NSW Supreme Court in Ex parte Bellanto; re Prior 4].
8. The Tribunal failed to take into account relevant material being the circumstances and submissions of the Plaintiff's certiorari application before Her Honour Justice Balmford in the Santamaria case.
9. The Tribunal failed to take into account relevant material being that Member Davis had taken no oath of office and so questions of judicial independence raised by the Plaintiff in the bias application were open to raise.
10. The Tribunal failed to take into account relevant material being the evidence of the Plaintiff that he sought to avoid appearing before Member Davis on the relevant occasion.
11. The Tribunal failed to take into account relevant material being the fact the Plaintiff had made submissions to Justice Balmford in the Supreme Court previously to similar effect as in the bias application to Member Davis and so a privilege arose.
12. The Tribunal failed to take into account relevant material being:
[11]
a. the merits of the bias application and
b. the fact Member Davis ought to have immediately recused himself and
c. the Plaintiff did not complete the bias application.
[12]
13. The Tribunal proceeded upon a wrong principle in that it misconceived what was required by the public interest in imposing the penalty of suspension on the Plaintiff.
14. The Tribunal proceeded upon a wrong principle being that it ignored a reasonable scale of costs applied at a Tribunal. [see 21/12/04 decision at paragraph 18]."
[13]
11 Counsel for the plaintiff submits that each of the grounds relied upon raises jurisdictional error and that, in those circumstances, it was not incumbent upon the plaintiff to demonstrate extraordinary circumstances to justify the use of Order 56 procedures. Counsel submits that, therefore, the first defendant could not succeed in its application because it could not demonstrate that there was no substantial basis upon which the plaintiff could obtain the orders sought.
12 The plaintiff faces practical problems in that at least the first five grounds raise issues concerning decisions made other than that under review. I proceed on the basis, however, that the decisions are nonetheless within the confines of the originating motion and the plaintiff can raise those grounds. I also note that an examination of a number of the grounds relied upon when compared with the relevant reasons for decision are not made out. I will proceed, however, on the basis that they are arguable grounds.
13 The first issue to determine is whether any of the grounds relied upon raise questions of jurisdictional error. Ultimately the test is whether it is demonstrated that the relevant body strayed beyond the task confided to it; for
[14]
" .. only if that body strays beyond that task will there be a want or excess of jurisdiction[9]
[15]
14 Counsel for the plaintiff has not been able to demonstrate that any of the grounds now relied upon raise issues which can be described as jurisdictional error issues.
15 Relevant jurisdictional issues would appear to include issues such as whether the person brought before the Tribunal is a legal practitioner and whether the charge was brought by a recognised professional association.[10] It is not suggested that the Tribunal erred on those issues. The errors referred to are errors allegedly made in the exercise of the jurisdiction given.[11] They do not go outside the task given to the Tribunal and do not affect the exercise of its powers.
16 If that analysis be incorrect, and any of the grounds relied upon raise jurisdictional error, the next issue to consider is whether the statutory appeal under s.170 of the Legal Practice Act extends to jurisdictional errors. In my view it clearly does and this conclusion is supported by the analysis by the High Court in Roy Morgan Research Centre Pty Ltd v State Revenue (Vic)[12]. In that case, the High Court considered the nature of the appeal under s.148 of the Victorian Civil and Administration Tribunal Act 1998. The plaintiff's counsel acknowledged that that section is in similar terms to s.170 of the Act. Section 170 of the Act provided as follows:
[16]
(1) Any party may appeal to the Court of Appeal, on a question of law, from an order of the Full Tribunal under Division 1 or 5 or this Division."
[17]
Like s.170 of the Act, s.148 confers an appeal from the decision of the relevant Tribunal on a question of law. The High Court stated:
[18]
"Section 148 of the VCAT Act is concerned with the invocation of judicial power to examine for legal error what has been done in an administrative tribunal. Although section 148 uses the word "appeal", it is clear that the Supreme Court is asked to exercise original, not appellate, jurisdiction and to do so in proceedings which are in the nature of judicial review. that is not to say that there are no other avenues for judicial review. The VCAT Act makes no express provision excluding the general supervisory jurisdiction of the Supreme Court. It may, therefore, be doubted that section 148 should be understood as doing more than providing, in some cases, an important discretionary reason for not permitting resort to that general supervisory jurisdiction on the basis that section 148 provides a suitable alternative remedy."
[19]
Section 170 of the Act provided a remedy in the nature of judicial review and that included consideration of alleged jurisdictional error. No justification can be identified for the plaintiff to proceed under Order 56.
17 It is reasonably clear , in my view, that the principle enunciated by Philips, 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.
18 It remains to consider whether there are extraordinary circumstances which would justify the use of Order 56 proceedings. The plaintiff has filed no affidavit material to support an argument, and does not in fact argue, that there are extraordinary circumstances which justified the bringing of proceedings under Order 56 rather than under s.170 Legal Practice Act. In the circumstances, the Order 56 proceedings must ultimately fail and should be adjudged as scandalous frivolous and vexatious and an abuse of the process.
19 For the foregoing reasons, the appeal should be dismissed. In the circumstances it is not necessary to consider the significance of the fact referred to by the first defendant that as a result of the plaintiff's delay, his claim for an order in the nature of mandamus against the second defendant must fail because it no longer exists. I note also that in reaching the above conclusion, I did not consider whether the plaintiff's conduct of the Order 56 proceeding was itself relevant to the question of abuse of process, that issue not having been raised by the first defendant.
[2]Kweifio-Okai v Melbourne Magistrates' Court[2001] VSC 351 [4]; Director of Public Prosecutions v Verigos [2004] 145 A Crim R at 93-4; Victorian WorkCover Authority v Azzopardi[2005] VSC 361 [35]-[37].