The 60 day time limit for instituting VCAT proceedings under the Legal Profession Act

In Ralph Cosentino v MY [2007] VCAT 1319, Member Butcher continued a tradition of statutory interpretation of a little technical provision about when service of statutory notices is effective. That tradition, of the Legal Profession Tribunal and its predecessors, has always troubled me. Though it does not seem to have been cited by counsel,  a recent decision of a Deputy President of VCAT took the opposite approach: Vitesnik v Macedon Ranges SC [2007] VCAT 598. There is a Legal Profession Act, 2004 notice issued by the Legal Services Commissioner within 60 days of receiving which an applicant must start their VCAT case.  Mr Butcher concluded that he would have found that Mr Cosentino did not ‘receive’ it on the day when the Act directed that it was to be ‘taken to have been given to him’. But the question never quite arose, as Mr Butcher used a VCAT Act, 1998 power to excuse the applicant’s use of the wrong originating process and concluded that the proper characterisation of things was that the application, though defective, had been made within time anyway, so that it was appropriate to excuse the procedural defect and recognise the case as having been started within time. Warning: this is a particularly boring decision unless you are a user of VCAT’s Legal Practice List.

A man lodged a complaint with the Legal Services Commissioner which was characterised as a civil dispute. Once she had gone through her dispute resolution processes, the Comissioner gave a notice under s. 4.3.15 of the Legal Profession Act, 2004 advising the parties of their entitlement to apply to the Tribunal. It was dated 27 February 2007. Applications under the Act are to be made within 60 days after ‘receipt’ of the notice: sub-section (2). The 60th day after the 27th was 28 April, so the 60th day after the receipt of the notice was probably a few days after that. The applicant filled out the form VCAT sent him when he asked for one, and lodged it on 27 April. It wasn’t the right form though. It was a Form 1, not a Form 2. He didn’t get the right form in until 2 May. Was he out of time?

Member Butcher made the following order: ‘2 Find that the application to the Tribunal was made within time.’ He made the following points:

  • the rules in the VCAT Act, 1998 about when notices sent by post are presumed to be received were irrelevant because they were stated to be ‘for the purposes of this Act’, while the relevant time period was in the Legal Profession Act, 2004;
  • there was no evidence of when the Commissioner posted the notice, but that was irrelevant, because the question was when it was received, and you can’t work out when it was received from when it was posted;
  • there was no evidence of when it was received (and though the complainant appeared at the hearing, there was no discussion about drawing an adverse inference from his failure to give such evidence) so that Member Butcher could not be sure that the Form 2 was out of time anyway; and
  • it was VCAT’s fault that the Form 2 was not received within time.

What seem to have been determinative were ss. 97 of the VCAT Act, 1998 which requires the Tribunal to act fairly and according to the substantial merits of the case, and s. 126(2)(b):

‘If the rules permit the Tribunal on application by a party or on its own initiative may: … (b) waive compliance with any procedural requirement other than a time limit that the Tribunal does not have power to extent or abridge.’

There was in fact a power under sub-section (1) to extend a time limit for the commencement of proceedings stated in any enabling enactment, such as the Legal Profession Act, 2004, but Member Butcher neither discussed that power nor availed himself of it. I think that was fair enough: the wrong form was lodged before the 60th day after the date of the notice and therefore must have been lodged before the 60th day after its receipt, and use of the wrong form was a procedural error, not a failure to commence proceedings within time.

There was no discussion of s. 7.2.4 of the Legal Profession Act, 2004. That says notices under the Act must be taken to have been ‘given to’ the addressee 2 days after posting. That provision is headed ‘When is Service Effective?’ In relation to the very similar provision in the VCAT Act, 1998 Member Butcher noted that ‘there is a difference between service and receipt’. But there can surely be no distinction between a notice taken to have been given to a man and the man’s receipt of it. Exactly the same problem arose under the old Act too, and the Legal Profession Tribunal came to a similar conclusion in Reber v HWJ [2000] VLPT 6. It has always troubled me. In Reber, Registrar Howell said:

‘Sections 433 & 434 of the [Legal Practice Act, 1996] provide for the service of notices upon persons such as Mr. Reber. In the absence of any evidence as to the posting of the letter of 23 July 1999, I am prepared to treat the letter as having been served upon Mr. Reber on 25 July 1999, two days after the date it bears and is likely to have been posted: section 434(1)(b). However, the 60 day period referred to in section 128(2) [the old version of s. 4.3.15(2)] runs from the “receiving” of the notice, not from service of the notice. Receipt and service are different concepts. A person might be served in accordance with the Act but not receive the document served. The distinction between receipt and service has become relevant in this Tribunal mainly where a client was overseas when a notice was served under section 128(1). The Tribunal has adopted the view in previous cases, if the notice was not brought to the attention of the client in the interim, that the client did not “receive” the notice until he or she returned from overseas. Mr. Reber was working in central Australia, not overseas, but because the notice was not brought to his attention in central Australia the principle must remain the same. However, when Mr. Reber returned to his address for correspondence, on 9 August 1999, the limitation period of 60 days commenced to run.’

In the case which will arise soon enough where no notice at all is lodged within 62 days of the date evidence reveals the Commissioner posted the notice, I think the proper approach should be that the time limit has expired, and the discretion under s. 126(1) ought to be considered by reference to the principles articulated in innumerable VCAT cases digested by Jason Pizer in paragraph [4461] of the third edition of the Annotated VCAT Act. VCAT has said oral evidence or affidavit evidence is necessary. A good excuse for the delay is very important. And the longer the delay, the stronger the prima facie case which needs to be demonstrated to earn the indulgence. There are, of course, the usual principles relating to prejudice unable to be remedied by an order for costs.

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