Supreme Courts tell legal regulators their limitation defences are bollocks

In England, the stern sounding Bar Standards Board brought disciplinary proceedings against a black barrister, Portia O’Connor, the first barrister to become a partner in one of the very modern alternative business structures they allow in old Blighty these days.  They succeeded but the decision was overturned on appeal and the appellate tribunal was not complimentary about the procedures of the Board.  So the barrister sued the Board for discrimination.  The regulator relied on limitation defences. The Supreme Court has just decided that the defences were misconceived: O’Connor v Bar Standards Board [2017] UKSC 78.  Should be an interesting case.

Meanwhile, in Kaczmarski v Victorian Legal Services Board [2017] VSC 690 the Board, represented by an external firm of solicitors and experienced counsel, tried unsuccessfully to shut an unrepresented shareholder of an incorporated legal practice out of an appeal against the reappointment of an external manager to the practice.  It did so by arguing for an extraordinarily strict and as it turned out quite wrong approach to what it said was an un-extendable 7 day time limit for appealing.

I must say I’m puzzled what all the fuss was about, in view of s. 155 of the Legal Profession Uniform Law Application Act 2014.  That section makes clear that nothing in the LPUL limits or restricts the Supreme Court’s administrative law jurisdiction, so that the reappointment of the external manager might have been challenged by judicial review, for which order 56 of the Supreme Court’s rules provides a 60 day extendable time limit, or under the Administrative Law Act 1978 which provides a 30 day time limit.  But neither side seems to have made argument by reference to it.  The bases on which the decision might have been challenged, and the relief available might well have been different between the three avenues of challenge, of course.

The problem with the strict approach was that it was wrong, very wrong.  The reappointment of the manager, who vexed the appellant so much that one of the orders sought on the appeal was that the manager be ‘charged criminally and takes a mental assessment by an independent psychiatrist doctor from another state’, occurred on 28 April 2017 and was notified to the appellant by letter of that date.  But, it turns out, the Board did not post it until 1 May 2017.  The appellant received it on 10 May 2017, but the Board argued that s. 445 of the Legal Profession Uniform Law which said documents must be taken to have been served two business days after posting admitted of no exceptions, and the Court agreed (at [47]).  (Given the Board’s enthusiasm for this provision, one might think it important that they would post letters on the date that they bear.   Otherwise the recipients might look up the law and assume that service would be taken to have been effected two business days after the date of the letter, conclude that they are out of time, and not prosecute rights which they actually could have prosecuted, but that is an aside.)

The question was whether the appellant lodged his appeal within 7 days of 3 May 2017.

At 7.43 p.m. on 10 May 2017, the day he received the decision he appealed, the appellant’s son (the director of the practice) emailed Shane Draper at the Supreme Court a notice of appeal on his own and his father’s behalf.  The covering email said in part that Mr Draper had:

‘advised [the appellant] and myself that an email needs to be sent to this email address advising the Supreme Court of an objection to an Appointment of a Manager to a law firm …, together with a request that your office provide both [the appellant] and myself with a hearing date. This email serves such a purpose.’

The Board argued that the notice of appeal was not ‘lodged’ until it was considered and sealed by the Court’s registry, which did not occur until days later, when a fee waiver application had been processed.  The Board relied on a dissenting judgment in a Full Federal Court case from 1988 which was ‘not supported by other authority’ according to the Supreme Court and was in fact inconsistent with Full Federal Court authority from 1998.

The Board contended that the later unanimous decision of Finkelstein J and two other judges could and should be distinguished because it construed a provision which spoke of an appeal being ‘lodged with a Registry of the Federal Court’ whereas s. 358 of the LPUL simply said ‘(1) An aggrieved person may, in accordance with applicable jurisdictional legislation, appeal to the designated tribunal [defined to mean the Supreme Court] …  (3) The appeal … is to be lodged within 7 days after notice of the appointment is served’. Ierodiaconou AsJ gave this argument very short shrift at [33].  Not only was the Board’s interpretation based on a dissenting judgment which did not amount to the ratio of the case and which had subsequently been unanimously disapproved by the same Court, but it was inconsistent with a subsequent comments about the concept of ‘lodgement’ made by a judge of the Court of Appeal in 2004, and a 2017 decision of the ACT Supreme Court.

Then the Board said that initiating process such as that which initiates an appeal could not be filed electronically.   Ierodiaconou J found that rules about filing were not to the point in determining how a document may be lodged since lodgement and filing are two different things, each of which is referred to in the Supreme Court’s rules.  And, her Honour pointed out, one of the purposes of the Electronic Communications Act 2000 is to ‘enable the community to use electronic communications in their dealings with government’, and s. 8 permits the lodging of claims by electronic communication where the recipient may be inferred to have consented to receiving the communication electronically.  Consent was easily inferred by her Honour by reference to a practice note issued by the Court which told people to communicate with the Court by email and indeed from the terms of the email itself which said that Mr Draper had asked the appellant to send it.

So there you go, peeps, if a regulator sicks a manager or superviser on your practice and you don’t get the decision until the last day to appeal it because service occurred a couple of days before you received it, just drop the Supremes a note by email sometime before midnight and you should be right.  If not, gird your loins and seek judicial review, never forgetting that every decision by legal regulators under the LPUL which affects your rights is probably challengeable by old fashioned administrative law remedies, regardless of how constrained the appeal / review rights provided for by the LPUL appear to be.

 

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