In K v Legal Services Board [2006] VCAT 2303 (see previous post) Bowman J was critical of, and did not follow Law Institute of Victoria Limited v Michel (T0211 of 2004), a decision of the Full Legal Profession Tribunal chaired by Judge Dee to grant a rehearing after having made a final order, on the basis that the solicitor had not received proper notice of the hearing. Judge Bowman suggested that the Full Tribunal was functus officio and in the absence of a statutory power to reopen the hearing, had no power to do so, having done its job and exhausted its jurisdiction in the process.
It is somewhat ironic that he was immediately asked to reopen his decision, decided that in order to do so, he would need to consider whether he was in fact permitted to do so by reference to the principle of functus officio, but then gave his decision in the reopened matter, explaining that it was unnecessary to determine whether he in fact had power to do so, since he was not inclined to change his decision.
This justification for doing so is not particularly attractive. Perhaps another analysis might have been that there is no res judicata in a finding that a tribunal has no jurisdiction, and though it might often be an abuse of process for a second application to be made in the face of such a ruling, the changed circumstance which occasioned him to reopen his decision (the Court of Appeal’s new decision in He v A & Co) was enough not to make what might have been treated as a second application an abuse of process.
