Vic Supreme Court summarises VCAT’s power to review practising certificate decisions

In the matter of ZGW v Legal Services Board [2007] VSC 225, Justice Bell made some observations about VCAT’s power to grant merits review of decisions about practising certificates made by the Legal Services Board, and the interrelationship of that power with the availability of judicial review:

The scope of the powers of the Victorian Civil and Administrative Tribunal

72 Section 2.4.37(1) of the Legal Profession Act 2004 allows a person whose interests are affected to apply to the Tribunal for review of a decision of the Board in relation to a practising certificate, including a decision refusing to renew a certificate. A local lawyer is a person whose interests are affected by such a refusal and may therefore apply to the Tribunal for review of the decision, as the plaintiff has done. When conducting such a review, the Tribunal has “all of the powers of the Board in respect of the decision,”[55] and other additional powers.

73 Section 2.4.37(1) of the Legal Profession Act dovetails with s 42(1) of the Victorian Civil and Administrative Tribunal Act 1998, which tells us that the Tribunal has whatever review jurisdiction is conferred by an “enabling enactment”. Section 2.4.37(1) confers jurisdiction on the Tribunal and is therefore an “enabling enactment”.[56] Where a person is entitled to do so under the enabling enactment, s 48(a) of the VCAT Act allows him or her to apply for review of the decision in accordance with the specified procedures. Again, this is what the plaintiff has done.

74 Section 51(1) of the Victorian Civil and Administrative Tribunal Act specifies the functions of the Tribunal in exercising its review jurisdiction in respect of a decision. The Tribunal has all of the functions of the decision-maker, any other functions conferred by the enabling enactment and any functions conferred on the Tribunal by its own Act.

75 Section 51(2) specifies the orders that the Tribunal may make in determining a proceeding for review. It may affirm the decision under review, vary it, set it aside and substitute it with another or, alternatively, remit it to the decision-maker for reconsideration with or without directions or recommendations.

76 Under these provisions, the Tribunal possesses a statutory jurisdiction to carry out an independent review on the merits of the decision at first instance. That is a jurisdiction to stand in the shoes of the original decision-maker and make the correct and preferable decision as the Tribunal sees it, not simply to make a decision on whether the decision being reviewed was reasonable. There is no presumption that the decision at first instance was correct. The jurisdiction of the Tribunal is exercised on the materials before it, which are not confined to those that were before the original decision-maker. The Tribunal can decide all questions of jurisdiction and law, as well as fact and merit, which are raised in the application for review. These principles were first stated by the Federal Court in reference to the powers of the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975 (Cth).[57] They apply with equal force to the powers of the Victorian Civil and Administrative Tribunal under the Victorian Civil and Administrative Tribunal Act.[58]

77 Those principles apply equally to the powers of the Tribunal when reviewing a decision of the Board not to renew a practising certificate. In the present case, the Tribunal possesses a jurisdiction independently to consider all issues of jurisdiction, law, fact and merit raised by the plaintiff’s application to review the decision of the Board. It is the one forum in which all of these issues can be dealt with, for it is not part of the Court’s function to determine whether the plaintiff is a fit and proper person to hold a practising certificate. This is a powerful condition in favour of leaving the matter in the Tribunal’s hands. I will consider the individual grounds of the plaintiff’s application for judicial review. Subject to that, I think the Tribunal supplies an adequate alternative remedy for the issues raised by the plaintiff.

78 As I held in Kwan[59] in an analogous context, an applicant who is aggrieved by a decision made under the Legal Profession Act of the kind made in the present case will normally be confined to their right to seek review of the decision by the Tribunal. Unless there is something in the nature of the circumstances of the case to justify granting relief by way of judicial review, and even if a ground of judicial review is or would be established, I think the discretion to refuse relief should be exercised against the applicant. Subject to what I say next about the specific grounds relied on by the plaintiff, I think the discretion should be so exercised in the present case.’

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