Alessi’s Appeal [2006] VCAT 1714
What could be more exciting than 8 pages of closely typed reasons for decision about a jurisdiction challenge based on fine dissection of the transitional provisions in the Legal Practice Act, 2004? If that pumps your yams, read on. Sub-clause (2) of clauses 8.2 and 8.3 of the transitional provisions provide that if a matter was pending in the Legal Profession Tribunal on 12 December 2005, then VCAT is to hear and determine it as if it were a proceeding commenced in VCAT, and the repealed old Act continued to apply in respect of the matter (both substantively and procedurally). The Clients said an appeal was a new matter, and since no appeal was pending on 12 December 2005, the fact that the decision appealed against was pending on that day did not attract the operation of the transitional provisions. The Clients unsuccessfully argued that the only right of appeal against decisions made in matters pending on 12 December 2005 but determined after that date was under the VCAT Act, 1998, to the Court of Appeal. A three member panel of VCAT configured similarly to the old Full Legal Profession Tribunal (Judge Bowman, a solicitor member and a lay member) decided it had jurisdiction. The “matter” was the application to set aside the costs agreement, the ancillary matter of the costs of those proceedings, and any appeals from the substantive decision or the costs order. Since that matter was pending on 12 December 2005, the transitional provisions were attracted, and the Legal Practice Act, 1996‘s procedure for appeals in applications to set aside costs agreements applied, so that the bench of three VCAT members had jurisdiction to hear an appeal according to the procedures of the old Full Legal Profession Tribunal.
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The Legal Profession Act, 2004 commenced for many purposes on 12 December 2005, and on that date, the Legal Practice Act, 1996 was repealed. Accordingly, the general proposition is that what happens after that date is governed by the new Act. But there are transitional provisions so that what was started under the old Act’s procedures can be finished under them. Trouble is, the old Act’s Legal Profession Tribunal has been gobbled up by VCAT, so VCAT has to pretend for some purposes to be the Legal Profession Tribunal.
The Legal Profession Tribunal’s Registrar, Registrar Howell, set aside a costs agreement pursuant to s. 103 of the Legal Practice Act, 1996, reserving liberty to apply in relation to the costs of the proceeding: [2005] VLPT 1. A couple of weeks later, the solicitor appealed. A couple of months later, the Clients applied for costs of the s. 103 proceeding. Three months later again, the first day of hearing of the costs application occurred. Then 12 December 2005 passed. Then four months after the first day of hearing of the costs application, the second day of hearing took place. Another month went by before the third and fourth hearing days. Then, after reserving his decision for more than two months, Registrar Howell awarded the Clients 95% of their costs of the s. 103 proceeding on a party party basis stayed pending the solicitor’s appeal, and directed that the costs payable by the solicitor to the Clients should not be set off against the fees rendered during the contentious retainer payable by the Clients to the solicitor: [2006] VCAT 986. More than a year after the principal hearing ended, an order for the costs of the hearing had been made.
Having consented to the dismissal (after 12 December 2005) of the appeal against the decision setting aside the costs agreement, the solicitor purported to appeal (after 12 December 2005) pursuant to s. 104 of the Legal Practice Act, 1996 against the costs order which had been made in an application for costs which was part heard on 12 December 2005. The Clients said that the costs application was a matter which was pending on 12 December 2005, but the appeal was a separate “matter” which was not pending because the decision appealed against had not even been made on that day.
VCAT said that a matter is a “justiciable controversy and basically encompasses all claims made within the scope of the controversy”. It said that “matter” was the widest term available to describe a thing before a court, and a decision and an appeal from the decision, at least within the same tribunal, was the same matter (and probably the same proceeding). It concluded:
“31 On 12th December 2005, there was before the Legal Professional Tribunal a pending or part-heard matter. We agree with Mr Bick that the 1996 Act governed that matter, both substantively and procedurally. We are not of the view that the matter concluded with the [costs] orders of Senior Member Howell … The matter commenced pursuant to the 1996 Act, and, in accordance with the transitional provisions, orders were made pursuant to that Act. The matter was not at an end. There was still potentially at least one more determination which could be made in relation to the subject matter the subject of [sic.] the legal controversy. That determination was one by way of appeal to the Full Tribunal in accordance with s.104 of the 1996 Act. [The solicitor] chose to pursue that option. The pending or part-heard matter therefore remained alive. The 1996 Act continued to govern it procedurally and substantively.
32 That being the case, we have jurisdiction to deal with the appeal, and it is properly before us. There is then no need to turn to Clause 8.5 of … the 2004 Act[‘s transitional provisions, which says “if any difficulty arises in a proceeding because of the operation of [the transitional provisions], VCAT may make any order it considers appropriate to resolve the difficulty”], and in any event we would have approached the use of that Clause with considerable trepidation, bearing in mind that it is an issue of jurisdiction which we are determining.
33 We are also of the view that the conclusion which we have reached is one consistent with common sense and in accordance with the intention of the legislature. We believe that the apparent intention of the transitional provisions was that matters governed by the operation of the 1996 Act should continue to be so governed, at least until such time as there was what could be described as an “external appeal” – that is, one to a Court (the Court of Appeal) operating independently of and outside of the internal framework set up by the 1996 Act. We also agree that, however Senior Member Howell be described, the costs orders which he made … were orders made by him in accordance with the 1996 Act, which continued to apply substantively and procedurally.”
The authorities relied on by VCAT as to the meaning of “matter” were:
- South Australia v Victoria (1911) 12 CLR 667 per Griffiths CJ.
- In re The Judiciary Act, 1903-1920 and In re The Navigation Act 1912-1920 (1921) 29 CLR 257.
- Phillip Morris Incorporated v Adam P Brown Male Fashions Pty Ltd (1981) 33 ALR 465 per Mason J.
- Fencott v Muller (1982-1983) 152 CLR 570 (cited with errors and omissions as (1983) 46 ALR 41)
Peter Bick QC with John Manetta appeared for the solicitor; Bill Coady of Coadys for the Client.
The transitional provisions were as follows:
8.3 Pending matters in the Legal Profession Tribunal (1) This clause applies if, immediately before the commencement day, a matter was pending in the Legal Profession Tribunal and- (a) the Tribunal had not begun to hear the matter; or (b) the Tribunal had begun to hear the matter but had not heard any evidence on a material question of fact. (2) VCAT is to hear and determine the matter on or after the commencement day as if- (a) the matter were a proceeding commenced in VCAT; and (b) the old Act continued to apply in respect of the matter (both substantively and procedurally). (3) For the purposes of sub-clause (2)- (a) VCAT has all the functions and powers of the Legal Profession Tribunal under the old Act in respect of the matter (including the functions and powers of the Tribunal at first instance and the functions and powers of the Full Tribunal); and (b) a reference in the old Act to the Tribunal is to be taken to be a reference to VCAT; and (c) anything done by the Legal Profession Tribunal in relation to the matter before the commencement day is taken to have been done by VCAT; and (d) if the Legal Profession Tribunal had already been constituted for the hearing and the persons who constituted it are still available, the same persons are to constitute VCAT for the purposes of the proceeding; and (e) section 108 of the VCAT Act (reconstitution of Tribunal) applies to the proceeding.
8.4 Part heard matters in the Legal Profession Tribunal (1) This clause applies if, immediately before the commencement day, a matter was pending in the Legal Profession Tribunal and the Tribunal had heard any evidence on a material question of fact. (2) VCAT is to hear and determine the matter on or after the commencement day as if- (a) the matter were a proceeding commenced in VCAT; and (b) the old Act continued to apply in respect of the matter (both substantively and procedurally). (3) For the purposes of sub-clause (2)- (a) VCAT has all the functions and powers of the Legal Profession Tribunal under the old Act in respect of the matter (including the functions and powers of the Tribunal at first instance and the functions and powers of the Full Tribunal); and (b) a reference in the old Act to the Tribunal is to be taken to be a reference to VCAT; and (c) anything done by the Legal Profession Tribunal in relation to the matter before the commencement day is taken to have been done by VCAT; and (d) without limiting paragraph (c), VCAT may have regard to any evidence given to the Legal Profession Tribunal in the matter before the commencement day; and (e) if available, the same persons who constituted the Legal Profession Tribunal for the purposes of the matter are to constitute VCAT for the purposes of the proceeding; and (f) section 108 of the VCAT Act (reconstitution of Tribunal) applies to the proceeding.
8.5 VCAT may make orders of a transitional nature (1) If any difficulty arises in a proceeding because of the operation of this Schedule, VCAT may make any order it considers appropriate to resolve the difficulty. (2) VCAT may make such an order on the application of any party to the proceeding or on its own initiative.
