Demand for information “within 14 days” complies with s. 149

Law Institute of Victoria v MMM [2006] VCAT 182

Section 149(3) of the Legal Practice Act, 1996 says that a demand by the Law Institute under the power to compel information and documents must be in writing and “must allow at least 14 days to comply”. In a marvellously ambitious move, Rod Randall unsuccessfully challenged the Tribunal’s jurisdiction on the basis that a demand for information “within 14 days” did not allow his client at least 14 days to comply.

He cited cases for the proposition that the matter went to jurisdiction: Smith v Director of Housing [2005] VSC 46 and Nestle Australia Ltd v The President and Members of the Equal Opportunity Board [1990] VR 805, but the argument failed, whereupon the respondent admitted and was found guilty of not complying with a demand for information under s. 149, was reprimanded, and ordered to pay costs of $1,000, coincidentally the amount of the maximum fine. It is hard to imagine how costs of $1,000 could have been incurred by the sending along by a body paid by the public to investigate lawyers of a salaried employee to what must have been a very brief hearing.

I wondered how the argument was put as a jurisdictional argument. Jurisdiction, I thought, was given by the charge laid by the Law Institute.  But Randall certainly had an argument that if the s. 149 notice was invalid then VCAT had no jurisdiction. Bongiorno J said in the first cited case at [23] to [24]:

“The jurisdiction of VCAT to entertain the application by the Director of Housing for possession of Mrs Smith’s flat was dependent upon a valid notice to vacate having been given to her. For the notice to vacate to have been valid it must, on its face, have identified, with a sufficient degree of precision, the facts said to constitute the endangering of Mrs Smith’s neighbours by her or her visitor or visitors so as to bring the case within s.244 of the Act.

    VCAT had no jurisdiction to consider the Director of Housing’s application. It should have been struck out in limine [at the threshold]. Accordingly, this appeal will be upheld and the decision of the Victorian Civil and Administrative Tribunal of 26 October 2004 will be quashed.”

Rod Randall appeared for the respondent solicitor, and Fiona Reading of the Law Institute appeared for it.

See also:

Print Friendly, PDF & Email

Leave a Reply

Your email address will not be published. Required fields are marked *