Natural justice and disciplinary proceedings following Byrne v Marles
August 2008 - Client Newsletter
Summary : The Court of Appeal decided in Byrne v Marles & Anor [2008] VSC 78 (16 May 2008) that the Legal Services Commissioner (Commissioner) was required to give legal practitioners an opportunity to make submissions as to whether she should commence a disciplinary inquiry under the Legal Profession Act 2004 (Act). This was because the Act imposes an obligation on the Commissioner to give a legal practitioner notice of a complaint prior to making a decision as to whether she ought to commence an inquiry into the professional conduct of a legal practitioner. Decision-makers should consider their empowering Acts to ascertain whether similar obligations are imposed on them in relation to making a decision to conduct a disciplinary inquiry.
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How can decision-makers determine whether the Byrne decision applies to them?
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It is a fundamental principle of administrative law that persons are entitled to be heard prior to an administrative decision being made which affects their rights or interests.
In the context of disciplinary proceedings, this right to be heard ordinarily relates to the substantive hearing and determination of an inquiry into a person’s conduct, and not to the decision to commence that inquiry. However, in the recent Court of Appeal decision of Byrne v Marles & Anor [2008] VSC 78 (16 May 2008) (Byrne decision), the Court determined that legal practitioners who are the subject of a disciplinary inquiries under the Legal Profession Act 2004 (Act) were entitled to ‘be heard’ on the question as to whether the Legal Services Commissioner (the Commissioner) should commence a disciplinary inquiry.
Facts
Stephen Byrne (Byrne), a legal practitioner, represented a particular client (Client) for some time in relation to a Supreme Court proceeding. The Client obtained alternate legal representation (New Solicitor) in relation to that proceeding. The New Solicitor contacted Byrne to request that Byrne provide a copy of the fee agreement between Byrne and the Client. A number of subsequent requests were made by the New Solicitor in relation to the fee agreement, however Byrne still refused to provide it to the New Solicitor. The New Solicitor made a complaint against Byrne to the Law Institute of Victoria (LIV), stating that Byrne’s conduct had been ‘unprofessional and obstructive’. This complaint was forwarded to the Commissioner who wrote to Byrne advising that she had referred the complaint to the LIV for investigation as a ‘disciplinary complaint’, and that at the completion of that investigation she would make a determination in relation to that ‘disciplinary complaint’ in accordance with the Act.
Byrne sought judicial review of the Commissioner’s decision to commence an investigation into a ‘disciplinary complaint’ against him on a number of number of grounds, each of which was rejected. He then appealed that decision to the Court of Appeal. His appeal included one additional ground, which was that the Commissioner failed to comply with the requirements of natural justice, in that she failed to provide Byrne with an opportunity to ‘be heard’ as to whether she should classify the complaint as a ‘disciplinary complaint’ and refer it to the LIV for investigation.
Decision
Byrne’s appeal was successful on that additional ground. The Court of Appeal determined that Byrne had a right to ‘be heard’ on the issue as to whether the Commissioner should commence a disciplinary inquiry into his professional conduct.
The Court of Appeal noted that the content of Byrne’s right to natural justice turned on the construction of the Act. The Court noted that the requirement in s 4.2.8 of the Act to notify a legal practitioner of a complaint made against that legal practitioner, read together with the requirement under s 4.2.10 of the Act for the Commissioner to determine whether a complaint should be further proceeded with (or dismissed without determination on the merits), had the effect of requiring a legal practitioner to be given the opportunity to make a submission to the Commissioner before the Commissioner determines that a complaint is a ‘disciplinary complaint’ which should be investigated.1
Does the Byrne decision impose a general requirement upon decision-makers to provide persons with an opportunity to ‘be heard’ prior to a disciplinary inquiry being carried out?
In our view, this decision was based on construction of the particular statute applicable, rather than on any general notion of what natural justice involves. This is consistent with the general approach the courts have taken in relation to this issue, i.e. that natural justice is dependent on the circumstances of the particular case.
In coming to its decision, the Court of Appeal reviewed a number of authorities. It considered two separate lines of reasoning, the first being that natural justice, in the absence of express exclusion by the relevant statute, should be afforded to every person who has a right, interest or legitimate expectation2 in relation to an administrative decision, including a ‘preliminary’ decision.3 The second line of reasoning was that a preliminary decision will not attract the right to ‘be heard’ if that opportunity is available at a later stage in the process.4 Following the review of those authorities, the Court of Appeal concluded that in a general sense, ‘the requirements of natural justice may be satisfied if “the decision-making process, viewed in its entirety, entails procedural fairness”.5
The question as to whether a decision-maker is required to give a person an opportunity to be heard as to whether a disciplinary inquiry ought to be commenced in relation to that person’s professional conduct depends on the wording of the statute in question. It was held that the Act does confer that right in relation to legal practitioners in Victoria.
The Byrne decision does not, however, alter the law in relation to professional and occupational disciplinary processes generally. In our view, it remains the case that in most instances, an affected person will not be entitled to ‘be heard’ prior to a decision-maker determining whether to commence a disciplinary inquiry, however this is dependent on the requirements imposed by the legislation in question.
How can decision-makers determine whether the Byrne decision applies to them?
Decision-makers should consider their powers and duties under their empowering Acts in order to determine whether they are required to give persons an opportunity to ‘be heard’ as to whether a disciplinary inquiry should be commenced into a person’s professional conduct.
In particular, decision-makers should consider whether their legislation requires them to give a person who is the subject of a conduct-related complaint notice of that complaint prior to making a decision as to whether to commence a disciplinary inquiry. If decision-makers are required to give such notice, it may be that they are required to give a person an opportunity to ‘be heard’ as to whether a disciplinary inquiry should be commenced.
If a decision-maker is not required to give a person notice that a conduct-based complaint has been made about that person prior to making a decision to carry out a disciplinary inquiry, it is probable that the decision-maker is only required to give the person an opportunity to ‘be heard’ in the course of the substantive hearing and determination of that disciplinary inquiry.
For further information
For further information or legal advice on any issues raised in this Newsletter contact:
Jonathan Smithers on 8684 0411
Assistant Victorian Government Solicitor
Penina Berkovic on 8684 0469
The VGSO is the primary source of legal services to the Victorian State Government and its statutory authorities, providing strategic advice and practical legal solutions.
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1 See reasons of Nettle JA at [86].
2 It is noted that in the High Court decision of Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, McHugh and Gummow JJ held that McHugh J’s statement in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 311-312 represented the law in Australia, that is, that there may not be any need for a doctrine of legitimate expectation in Australia; the question is rather, what does procedural fairness require in the circumstances of a particular case.
3 See, for example, Ainsworth v Criminal Justice Commission (1995) 175 CLR 564 or Annetts v McCann (1990) 170 CLR 596.
4 See, for example, Cornall v AB (A Solicitor) [1995] 1 VR 372, and Edelstein v Health Insurance Commission (1990) 96 ALR 673.
5 See [82] of the Byrne decision.
