“VCAT may make orders of a transitional nature” read down

K v Legal Services Board [2006] VCAT 2303; K v Legal Services Board No. 2 [2006] VCAT 2362 (Bowman J)

A solicitor lied to a County Court judge about holding a practising certificate and was told in 2001 by the Full Legal Profession Tribunal not to bother applying for a practising certificate until 2011 and only if he had complied with two previous orders of the Tribunal. It ordered the solicitor to be referred to the Supreme Court with a recommendation that his name be struck off the roll of practitioners. The Law Institute duly applied to the Supreme Court declined to strike him off, finding that inadequate notice of the Tribunal hearing had been given to the solicitor. The solicitor did not then appeal the Full Tribunal’s order. Three and a half years later, the solicitor applied under s. 2.4.9 of the Legal Profession Act, 2004 for a practising certificate, by which time the Legal Practice Act, 1996 had been repealed and the Legal Profession Tribunal abolished. He said the Supreme Court had ruled that the Full Legal Profession Tribunal’s decision had been defective, and as the successor to that Tribunal, VCAT must be able to “remedy” the Full Legal Profession Tribunal’s defective decision. Bowman disagreed, suggesting that the only remedy available to the solicitor might be to use “the provisions of the Interpretation of Legislation Act, 1984 in relation to repealed legislation” to bring an appeal under the now-repealed Legal Practice Act, 1996 (as to which, see below).

Bowman J found that the transitional provisions dealt only with pending and part heard matters before the Legal Profession Tribunal on the repeal of the Legal Practice Act, 1996, so that the only route to the destination desired by the solicitor was clause 8.5 of the transitional provisions (found in Schedule 2 of the Legal Profession Act, 2004), which says:

“VCAT may make orders of a transitional nature

If any difficulty arises in a proceeding becaue of the operation of this Schedule, VCAT may make any order it considers appropriate to resolve the difficulty.”

Of this provision, Bowman J said:

“Whilst that clause is quite broad, it seems to me to be giving to VCAT the power to make an order in order to resolve a difficulty that may arise as part of the transitional process. It seems to me that the difficulties envisaged would be those of what could be described as a mechanical nature. I do not see this clause as visiting upon VCAT a broad jurisdiction which it does not otherwise possess.”

I’m guessing the reference to the Interpretation of Legislation Act, 1984 was to s. 14, which provides that generally (i) the repeal of an Act (a) does not affect any right or privilege acquired or incurred under it and (b) does not affect any legal proceeding in respect of any penalty or punishment incurred in respect of an offence under the repealed Act, and (ii) any such legal proceeding may be instituted as if the Act had not been repealed.

The reason why the Court of Appeal in He v A & Co [2006] VSCA 235 was able, after the repeal of the Legal Practice Act, 1996 and abolition of the Legal Profession Tribunal to remit to VCAT for rehearing a pecuniary loss dispute which the Legal Profession Tribunal and the Full Legal Profession Tribunal had erred in determining was that Mr He had commenced his appeal before the repeal of the Legal Practice Act, 1996, with the result that the “dispute” was pending and transitional provision 6.1 caught it, such that VCAT was to continue to deal with it under the Legal Practice Act, 1996 as if a reference to the Legal Profession Tribunal were a reference to VCAT.

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