Some law on the Commissioner’s powers to delegate

The nature of a delegation was described in B (A Solicitor) v Victorian Lawyers RPA Ltd (2002) 6 VR 642 by counsel and repeated without disapproval by Justices of Appeal Charles and Batt:

‘a delegate acting is not an agent who exercises the [delegator’s] powers but rather, as the new repository of the powers, exercises his own powers as a delegate.’

The same judges explained the purpose of requiring delegations to be in writing:

‘In the circumstances the legislative purpose of permitting a delegation of the functions and powers to be exercised after completion of an investigation, but requiring such a delegation to be in writing, seems to us to be reasonably apparent.  We would accept the appellants’ submissions in this regard, that the requirement of a writing protects the interests of all parties concerned.’

Of course that must be so.  Those who seek to exercise invasive statutory powers, as trust account inspectors do, should carry around the original instruments of delegation with them in their briefcases.  That’s what used to happen in the old days. Those whose rights are invaded should ask to see the delegations so as to satisfy themselves that the person raiding their trust accounts is not in fact a con artist.  Of course, no one ever does so.  So the more appropriate advice is that when faced with a disciplinary prosecution, it is imperative to check whether everyone who was purporting to do things was properly entitled to do so. Errors are not infrequently made, and the necessary proofs of such matters are not always got right (though the principle of evidence that omnia praesumuntur rite et solemniter esse acta might conceivably be used to fill gaps in proof in the absence of any real challenge: see Mallock v Tabak [1977] VR 78 at 84 per Lush J. The rule has been put quite broadly: ‘[w]here an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act.’)

Consider the great delegation debacle. Also, last year, real forensic advantage was obtained in a Supreme Court case because of the relevant legal regulator’s exhibition to its trial affidavits of the wrong instrument of delegation.  The issue arose in Byrne v Marles [2008] VSCA 78 (see this earlier post, and this one too), where the relevant acts — the notification of the complaint to the solicitor, its referral to the Law Institute for investigation, and its characterisation as a disciplinary complaint — were done by a Ms Cohen (formerly the Deputy Legal Ombudsman and now the Director, Investigations in the Office of the Legal Services Commissioner), an employee of the Commissioner.  The solicitor argued unsuccessfully that the relevant acts were invalid because of a defect in the delegation of the relevant powers to Ms Cohen, about which, more below.

There is an extraordinary network of delegations amongst the legal regulators. There is the Legal Services Board, of which the Legal Services Commissioner is the CEO. Each has employees to whom work is delegated. The Commissioner refers complaints to the Law Institute for investigation. The Institute delegates the investigations to its employees. In those cases, the Institute is not the delegate of the Law Institute, but for a long time, its employees signed letters purporting personally to be the Commissioner’s delegates. They have stopped that now. Other times, the Law Institute is a delegate. For instance, the Legal Services Board has delegated to it the function of issuing and, where appropriate, suspending and cancelling practising certificates. Then there are individuals who are appointed as inspectors, a personal statutory office. It’s all very incestuous. For example, some trust account inspectors, perhaps all, are employees of the Law Institute. They owe strict personal obligations of secrecy, breach of which is a criminal offence. Then there are in-house solicitors of the regulators who purport to act for their employers as solicitors on the record in litigation. The potential for conflicts of duties is ever present, and those involved in defending lawyers should be on the lookout for any which might have slipped through the regulators’ presumably carefully calibrated conflict identification procedures. The Commissioner’s power of delegation in s. 6.3.12 of the Legal Profession Act, 2004 is reproduced at the end of this post.

The courts take delegations more seriously than some bureaucrats seem to.  So  Justice of Appeal Ormiston said in B (a solicitor) v Victorian Lawyers RPA Limited [2002] VSCA 204:

‘The word “delegate”, as with the similar terms “authorise” and “appoint”, must take on its meaning from the context in which it appears but, when found in a statute, it ordinarily connotes a degree of formality especially when the provision requires that the delegation shall be “in writing”.  More often than not this will flow from the need to communicate to the person to whom the delegation is made the period and terms of the delegation, such as was held by the High Court to be essential in the case of an appointment, though found only in a lease:  see Gollin & Co. Ltd. v. Karenlee Nominees Pty. Ltd. … What the Court is here concerned with … is a formal step taken by a body given certain statutory powers of considerable significance, in the present case, a power which permits the commencement of disciplinary proceedings before the Legal Profession Tribunal, potentially leading to loss of the right to practise.’

The relevant passages in Byrne v Marles are:

[21(3)] … Two instruments of delegation were tendered in evidence. … Both delegations were in favour of ‘the person for the time being performing the duties of the Director, Investigations, being an employee referred to in s 6.4.1 of that Act’. The judge found that by those instruments the Commissioner had delegated such of her functions as were specified … ‘to the person for the time being performing the duties of the Director, Investigations, being an employee referred to in s 6.4.1 of that Act’, and that in June 2006, Ms Cohen had held the position of ‘Director Investigations’ in the Office of the Commissioner. Because the delegation in question was in terms a delegation to a person performing the functions of a particular designated office, it was a delegation to the holder of an office and not a delegation to an employee. In counsel’s submission, it is beside the point that Ms Cohen may have been an employee and that she held the office referred to in the delegation, because of the possibility that from time to time the holder of the office may not be an employee.’

and

’36 … s 6.3.12(1) of the Act provides:

‘The Commissioner, by instrument, may delegate to an employee referred to in Section 6.4.1 any function of the Commissioner, except this power of delegation’,

and s 6.4.1 of the Act provides:

‘Any employees that are necessary for the purposes of the Board or Commissioner are to be employed by the Commissioner under Part 3 of the Public Administration Act 2004.’

37 The nub of the argument is that, because the delegation in question was in terms a delegation to a person performing the functions of a particular designated office, it was a delegation to the holder of an office and not a delegation to an employee. In counsel’s submission, it is beside the point that Ms Cohen may have been an employee and that she held the office referred to in the delegation, because of the possibility that from time to time the holder of the office may not be an employee.

38 That submission is not persuasive. Authority makes plain that a delegation to the holder of a specified office may be a valid exercise of a statutory power to delegate ‘to any person’. [fn: Owendale Pty Ltd v Anthony (1967) 117 CLR 539, 563 and 581 (McTiernan J), 587 and 598 (Taylor J) and 611 (Owen J); Barton v Croner Trading Pty Ltd (1984) 3 FCR 95, 110 (Bowen CJ and Beaumont and Wilcox JJ); Fyfe v Bondoni [1998] SASC 6860, [52] and [53] (Olsson J) and see also AB Oxford Cold Storage Co Pty Ltd v Arnott (2005) 11 VR 298, 311 [34].] There was no suggestion at trial, still less evidence that anyone other than an employee of the Commissioner would or could be appointed to perform the duties of the Director, Investigations. And even if there had been evidence of the possibility of a non-employee holding the office referred to in the delegation, the fact is that Ms Cohen was and is an employee who was and is holding the office, and so in effect the delegation was and is a delegation to an employee. Perhaps, if someone else who was not an employee assumed the office and purported to invoke the instrument of delegation as authority to exercise the powers referred to in it, it would be concluded that he or she was acting ultra vires. But that is not this case. [fn: Cf Wouters v Deputy Commissioner of Taxation (1988) 20 FCR 342, 349-50.]

39 Counsel advanced a further argument – in effect, expressio unius est exclusio alterius – that, because s 6.3.12(1) provides that the Commissioner may delegate to ‘an employee referred to in s 6.4.1’, whereas s 6.3.12(2) provides that the Commissioner may delegate ‘to a person who is, or who is a member of a class that is prescribed by the regulations’, it is apparent that the intention of s 6.3.12 was to restrict delegations under that provision to named employees.

40 I reject that argument too. As I see it, the difference in verbiage between the two provisions is due to the fact that a delegations under s 6.3.12(1) must be to an employee, albeit that such a delegation may be in form a delegation to a specified office, whereas a delegation under s 6.3.12 may be made to a specified category of person who is not an employee.’

The Legal Profession Act, 2004‘s 6.3.12 and 6.4.1 say:

6.3.12 Delegation

(1) The Commissioner, by instrument, may delegate to an employee referred to in section 6.4.1 any function of the Commissioner, except this power of delegation.

(2) The Commissioner, by instrument, may delegate to a person who is, or who is a member of a class that is, prescribed by the regulations any function of the Commissioner, except—

(a) the function of—

(i) receiving complaints under Chapter 4 [Complaints and Discipline]; or

(ii) summarily dismissing a complaint under section 4.2.10; or

(iii) receiving and dealing with disputed legal costs under section 4.3.3 or 4.3.4; or

(iv) investigating disciplinary complaints under Division 3 [Investigations] of Part 4.4 [Disciplinary Complaints and Discipline]; or

(v) referring disciplinary complaints to a prescribed investigatory body [i.e. the Victorian Bar’s Ethics Committee or the Law Institute’s Professional Standards Division] under section 4.4.9]; or

(ab) a function under section 4.4.13 [What happens after an investigation is completed?] [This is the key decision making provision setting out the options available to the Commissioner at the end of the investigation, e.g. to lay a charge, issue a reprimand, or take no further action] (other than the function of applying to the Tribunal for an order under Division 4 of Part 4.4 [i.e. laying a disciplinary charge]); or

(b) the function of appointing a panel of mediators under section 6.4.3; or

(c) this power of delegation.

(3) The Commissioner must keep a register of delegations containing details of each function delegated and the name, office or position of the person or class of person to whom it has been delegated.

(4) At least once every 12 months the Commissioner must perform an audit of its delegations under this section to determine whether each delegation is still appropriate.’

6.4.1. Staff

Any employees that are necessary for the purposes of the Board or Commissioner are to be employed by the Commissioner under Part 3 of the Public Administration Act 2004.

Some light is shed on what the Public Administration Act, 2004 said at the time relevant to Byrne v Marles, in Justice of Appeal Nettle’s decision:

’31 Under s 20(1) of the Public Administration Act 2004 a ‘public service body Head’ (which is defined in s 16(1)(g) of that Act as including the Commissioner in relation to the Office of the Legal Services Commissioner), is vested on behalf of the Crown with all the rights, power, authorities and duties of an employer in respect of the public service body (in this case the Office of the Legal Services Commissioner) and the employees in it. Section 20(2) or the Act then provides that:

Employment and retirement

(2) Without limiting subsection (1), the appropriate public service body Head-

(a) may employ as many persons as are required for the exercise of the functions of the public service body;

(b) may assign work to employees;

(c) may issue lawful instructions that must observed by employees;

(d) may determine (with the approval of the Premier in the case of an executive) the remuneration (including an increase or reduction in remuneration) and other terms and conditions of employment of any individual employee;

(e) may pay allowances, bonuses or gratuities to employees;

(f) may transfer employees to duties in other public service bodies or in public entities;

(g) may suspend employees from duty with pay;

(h) may terminate the employment of employees;

(i) may second employees to other bodies or take persons on secondment from other bodies;

(j) may authorise periods of leave of absence for employees or make payments to employees in lieu of leave.’

See also:

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