B and LAW COMPLAINTS OFFICER as delegate of the LEGAL PROFESSION COMPLAINTS COMMITTEE - [2023] WASAT 83

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION:   B and LAW COMPLAINTS OFFICER as delegate of the LEGAL PROFESSION COMPLAINTS COMMITTEE [2023] WASAT 83
MEMBER:   PRESIDENT PRITCHARD
MR D AITKEN, SENIOR MEMBER
MS M CONNOR, MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   7 SEPTEMBER 2023
FILE NO/S:   VR 42 of 2022
BETWEEN:   B
Applicant
AND
LAW COMPLAINTS OFFICER as delegate of the LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
RICHARD IAIN MICHAEL BANNERMAN
Second Respondent

Catchwords:

Vocational regulation – Legal practitioner – Review of decision to summarily dismiss complaint that practitioner engaged in conduct warranting disciplinary action – Complaint dismissed before investigation completed – Complaint dismissed on basis that allegations misconceived or lacking in substance – Whether the information in the complaint and evidence obtained before the Tribunal gave rise to any basis for concluding that if complaint referred to Tribunal there was a reasonable likelihood it would find the practitioner guilty of unsatisfactory professional conduct or professional misconduct – Whether further investigation is likely to uncover additional evidence

Legislation:

Family Law Act 1975 (Cth), s 121
Legal Profession Act 2008 (WA), s 402, s 403, s 415(1)(b), s 421, s 424, s 425, s 426, s 428, s 435, s 435(1), s 435(1)(a), s 435(2)
Legal Profession Uniform Law (WA)
Legal Profession Uniform Law Application Act 2022 (WA), s 6, s 57, s 260(a), s 269, s 319, s 319(1)(a)(i), s 319(1)(b), s 319(2)
State Administrative Tribunal Act 2004 (WA), s 29, s 36(5)

Result:

Decision of the First Respondent to dismiss the complaint is affirmed

Category: B

Representation:

Counsel:

Applicant	:	N/A
First Respondent	:	N/A
Second Respondent	:	N/A

Solicitors:

Applicant	:	N/A
First Respondent	:	N/A
Second Respondent	:	N/A

Cases referred to in decision:

Chen and Law Complaints Officer [2022] WASAT 26
Clarkson v Clarkson (1972) 19 FLR 112
Clone Pty Ltd v Players Pty Ltd (in Liquidation) [2016] SASCFC 134; 127 SASR 1
Clyne v New South Wales Bar Association (1960) 104 CLR 186
Gonciarz v Legal Profession Complaints Committee [2021] WASC 351
Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56
Laurent and Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165
Legal Profession Complaints Committee and Segler [2013] WASAT 117
Malabar and Law Complaints Officer as delegate of the Legal Profession Complaints Committee [2023] WASAT 80
Victorian Legal Services Commission v Sandbach [2022] VCAT 1477

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction and overview

On 11 October 2021, the Applicant lodged a complaint with the Legal Profession Complaints Committee (LPCC) about the conduct of a legal practitioner, the Second Respondent, Mr Richard Bannerman, (Complaint).[1]
[1] Legal Profession Complaints Committee's Section 24 Bundle of Documents (First Respondent's Bundle), pages 4 – 11.
The Complaint made by the Applicant, to whom we will refer as Ms B, pertained to the conduct of Mr Bannerman in proceedings before a Magistrate in the Family Court of Western Australia (Family Court) in early 2021 (Family Court hearing). Mr Bannerman was acting for the former partner of Ms B's son in proceedings in the Family Court against Ms B's son. The Family Court hearing concerned parenting arrangements for their child, Ms B's grandson (child). We have anonymised references to the applicant and all parties in the Family Court proceedings in order to maintain the confidentiality of the Family Court proceedings. [2] For the same reasons, the President will also make an order pursuant to s 62(1)(c) and s 62(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) prohibiting the publication of Ms B's name, and information which would identify her.
[2] Section 121 of the Family Law Act 1975 (Cth) applying by virtue of Family Court Act 1997 (WA) s 243.
In the Complaint, Ms B made a number of allegations about the conduct of Mr Bannerman in the course of the Family Court hearing, and about the conduct of the Family Court hearing more generally.
On 16 May 2022, the First Respondent, the Law Complaints Officer, who was the delegate of the LPCC, dismissed the Complaint pursuant to s 415(1)(b) of the Legal Profession Act 2008 (WA) (LP Act) on the basis that Ms B's allegations were either misconceived or lacking in substance (Decision).
On 10 June 2022, Ms B applied to the Tribunal for a review of the Decision pursuant to s 435(1)(a) of the LP Act (Review Application).
As the Law Complaints Officer had not made a finding that the Complaint was trivial, unreasonable, vexatious, or frivolous, Ms B did not require the leave of the Tribunal to make the Review Application.[3]
[3] Cf Legal Profession Act 2008 (WA), s 435(2) (LP Act),
For the reasons which follow, we are of the view that the correct and preferable decision is that the Decision should be affirmed.

Factual background

In order to understand the nature of the allegations which are the subject of the Complaint, it is necessary to provide a brief overview of the Family Court hearing, which we have drawn from the transcript of that hearing (Family Court transcript).[4]
[4] The transcript was in the First Respondent's Bundle (Family Court transcript), pages 23 – 137.
As we have noted, the Family Court hearing concerned the parenting arrangements for the child. Mr Bannerman's client (child's mother) had applied for orders granting her the sole custody of the child. Prior to the Family Court hearing, Ms B's son (child's father) had been actively participating in the proceedings and had been legally represented. However, immediately prior to the commencement of the Family Court hearing, the solicitor for the child's father filed a notice of discontinuance on his behalf. At the commencement of the hearing, the solicitor for the child's father was given leave to withdraw.[5]
[5] Family Court transcript, page 2.
The learned Magistrate noted that the child's father had not only withdrawn from the proceedings, but in fact had consented to orders that the child reside with the child's mother and that she have sole parental responsibility.[6]
[6] Family Court transcript, pages 5 – 6.
Consequently, the only remaining issue before the Family Court was whether it should make orders permitting the child's father or the child's father's family, including Ms B (the child's grandmother), to have some contact with the child (contact orders). The question of the contact orders had arisen because the child had expressed a wish to see his father.
An Independent Children's Lawyer (ICL) had been appointed to advocate for the child's interests and she appeared at the Family Court hearing.[7] She told the Magistrate that she was undecided as to whether contact orders should be made. She submitted that the Family Court should first hear evidence from the Single Expert (Expert), a clinical social worker, who had been appointed to interview the child and assess what may be in his best interests, and who had prepared a report setting out his opinion. The ICL submitted that she should then be permitted to make submissions in light of that evidence.[8]
[7] Family Court transcript, page 2.
[8] Family Court transcript, pages 6 – 7.
On behalf of his client, the child's mother, Mr Bannerman opposed the course proposed by the ICL (namely to hear evidence from the Expert in relation to the impact on the child of contact, or lack of contact, with his father). He submitted that no contact orders should be made.
The learned Magistrate acceded to the course proposed by the ICL. He permitted the child's father (who appeared by audio-link from prison) and Ms B (who was sitting in the court room) to be present so they could hear the evidence of the Expert, and the submissions of the ICL, and have the opportunity to respond.[9]
[9] Family Court transcript, page 3.
The Expert gave oral evidence. The child's mother also gave evidence in relation to her concerns as to why contact between the child and the child's father, or the father's family, may not be in the child's best interests.[10]
[10] Family Court transcript, pages 86 – 89.
The Expert's evidence addressed whether contact between the child and the child's father, or child's father's family, including Ms B, would be in the child's best interests. The child had witnessed his father committing very serious domestic violence on the child's mother, and that raised the question whether it would be in his best interests to have contact with his father. On the other hand, the prospect that the child may have no contact with his father, or the father's family, might not be in his best interests either.
The ICL cross‑examined the Expert and made submissions. The child's father was also permitted to cross‑examine the Expert.[11] Mr Bannerman then cross‑examined the Expert and made submissions.
[11] Family Court transcript, page 38.
Two aspects of Mr Bannerman's cross‑examination and the submissions he made to the Family Court are particularly relevant to the Complaint.
First, in the course of his submissions, and in the course of cross‑examination of the Expert, Mr Bannerman referred to the fact that the child's father had a number of criminal convictions and was facing charges for which he was on remand at the time of the Family Court hearing. The pending charges included charges for possessing methylamphetamine with intent to sell or supply and attempting to pervert the course of justice.[12]
[12] Family Court transcript, pages 7 – 8.
It is apparent from the Family Court transcript that the sources of the information which underpinned those submissions and questions were charge documents setting out the offences with which the child's father had been charged, statements of material facts prepared by the police summarising the case the police intended to advance at trial, and his conviction records relating to his previous convictions. Insofar as the details of the pending charges were concerned, Mr Bannerman told the Magistrate that he had obtained details from the eCourts portal.[13] However, later in the hearing it became apparent that all of the information to which Mr Bannerman referred, in relation to the child's father's pending charges and his convictions, in fact came from documents which had been produced to the Family Court by the police in answer to a subpoena (subpoenaed documents).[14]
[13] Family Court transcript, pages 7 – 8.
[14] Family Court transcript, pages 44 – 45, 52.
The subpoenaed documents also referred to the child's father's convictions for offences including the possession of drugs, for serious domestic violence on the child's mother, and on reports of serious domestic violence by the child's father against other intimate partners.
The Expert's evidence was that before he completed his expert report, he had not reviewed the subpoenaed documents because they were not available at that time. The Expert acknowledged that he had not sought to view the subpoenaed documents before producing his report.[15] The Expert was unable to recall whether he had viewed the subpoenaed documents before giving his evidence at the Family Court hearing.[16]
[15] Family Court transcript, pages 44 – 45.
[16] Family Court transcript, page 45.
In those circumstances, Mr Bannerman proceeded to ask the Expert whether he was aware of the detail of some of the pending charges for which the child's father was awaiting trial, including the charge of attempting to pervert the course of justice, and the charge of possession of methylamphetamine with intent to sell or supply.[17]
[17] Family Court transcript, page 45.
Secondly, in response to questions the ICL had asked the Expert in relation to whether it would be in the child's best interests to have contact with the child's father's family, including Ms B,[18] Mr Bannerman cross-examined the Expert about the extent of his knowledge about Ms B's attitude to her son's violent offending behaviour.[19] The Expert agreed that it would be important to know about Ms B's involvement with the police in order to assess the implications of her being permitted to have contact with the child.[20]
[18] Family Court transcript, pages 23, 26, 32.
[19] Family Court transcript, pages 47 – 59.
[20] Family Court transcript, page 47.
Mr Bannerman then referred to the subpoenaed documents in relation to the child's father's pending charges of possession of methylamphetamine with intent to sell or supply and attempting to pervert the course of justice. Those documents, which included the police's statement of material facts,[21] and an incident report running sheet for the charges,[22] referred to the evidence on which the police relied in support of the charge of attempting to pervert the course of justice. That included the evidence of a witness who said that while she had signed a statutory declaration, in which she claimed that the drugs were hers, she only signed the declaration in response to pressure from Ms B to do so. In addition, the police relied on an intercepted phone call between Ms B and the child's father, whilst he was in prison, in which the child's father had told his mother to arrange for the witness to sign the statutory declaration.[23] There was also evidence of a subsequent communication between the child's father and Ms B, about getting another person to make a similar statutory declaration.[24]
[21] Family Court transcript, page 51.
[22] Family Court transcript, pages 52 – 53.
[23] Family Court transcript, pages 49, 52.
[24] Family Court transcript, page 52.
Mr Bannerman informed the Expert that that evidence had led to the child's father being charged with attempting to pervert the course of justice.[25] (The child's father told the Magistrate that the charge resulted from 'the interpretation of a phone call taped in prison'.[26]) Mr Bannerman made it clear that he could not 'say for certain that she [that is, Ms B] has been charged with conspiring [to pervert the course of justice]'.[27]
[25] Family Court transcript, page 49.
[26] Family Court transcript, page 50.
[27] Family Court transcript, page 53.
Mr Bannerman asked the Expert whether those allegations about Ms B – whether or not they had resulted in her being charged – would be relevant to his opinion as to whether Ms B would be suitable to have contact with the child. The Expert confirmed that that was so.[28]
[28] Family Court transcript, page 53.
The Expert had also interviewed Ms B, and noted that she denied that the child's father was a violent person, and asserted that the child's mother had serious mental health issues, which meant that she was a risk to the child.[29] The Expert agreed that in light of those attitudes, he appreciated why the possibility of contact between the child and Ms B might be a challenge for the child's mother to accept.[30]
[29] Family Court transcript, pages 57 – 58.
[30] Family Court transcript, page 58.
As previously mentioned, in the course of the cross-examination, it was apparent that the Expert had not had the opportunity to inspect all of the subpoenaed documents.[31] The Family Court gave leave to the Expert to inspect all of the subpoenaed documents, including those to which Mr Bannerman had referred.[32]
[31] See e.g. Family Court transcript, page 66.
[32] Family Court transcript, pages 61 – 62.
At the conclusion of the cross-examination of the Expert, the subpoenaed documents were tendered in evidence by Mr Bannerman.[33]
[33] Family Court transcript, pages 78 – 80, 84.
Two other issues which arose in the course of the Family Court hearing, and which were also the subject of the Complaint, should be mentioned.
One of the issues explored by the ICL in her cross‑examination of the Expert was the mental health of the child's mother. Medical records from two hospitals (medical records) had been produced to the Family Court in answer to a subpoena issued at the request of the child's father.[34] The ICL told the Magistrate that in the course of an earlier hearing, there had been a suggestion by the hospitals that they had initially produced the medical records in paper form, but the Family Court had no record of receiving any such documents, and thereafter the hospitals produced the medical records in electronic form on CD‑ROMs.[35] The Family Court transcript records that a court officer told the Magistrate that the Family Court had no record of the receipt of the medical records in paper form.[36]
[34] Family Court transcript, page 12.
[35] Family Court transcript, pages 70 – 71.
[36] Family Court transcript, page 71.
The Expert was unable to be certain whether he had independently reviewed the medical records. As a result, in the course of cross‑examination, the ICL provided the Expert with a brief summary of what was discussed in the medical records which she had inspected.[37] The ICL noted that it was not possible to read all of the medical records because of some technical difficulties with the CD‑ROMs.[38]
[37] Family Court transcript, page 72.
[38] Family Court transcript, page 70.
Finally, as we have noted, the child's father appeared at the hearing, from prison, by audio-link. During the cross‑examination of the Expert, the child's father interjected with comments on several occasions, and was warned by the Magistrate that if he continued to interject, the audio link would be muted.[39] Later in the course of the Expert's evidence, the Magistrate observed that 'there was a lot of background noise coming through'[40] on the link and that this was making it difficult for him to hear the Expert and it was distracting for the Expert.[41] As the background noise continued, the Magistrate advised the child's father that he would mute the link (so that the child's father would still be able to hear the proceedings, but so that no background noise would be heard in the court room).[42]
[39] Family Court transcript, pages 33 – 34.
[40] Family Court transcript, pages 44 – 45.
[41] Family Court transcript, page 45.
[42] Family Court transcript, page 45.
A little while later, the Magistrate stated that he had been advised that the child's father had not been able to hear what was being said in the hearing when the audio-link was muted. The Magistrate then permitted the child's father's audio-link to be unmuted. At that point, the Magistrate explained to the child's father what had transpired during the period in which he was unable to hear the proceedings.[43]
[43] Family Court transcript, pages 49 – 50.
Also, in the course of the cross‑examination of the Expert by the ICL, the child's father interrupted with questions and comments on several occasions.[44] The Magistrate told the child's father to refrain from interrupting.[45] Later, while the Expert was being cross-examined by Mr Bannerman, the child's father again interjected, and was warned by the Magistrate that if he continued to interrupt, the audio-link would be muted.[46] The child's father then made a comment about Mr Bannerman which the Magistrate considered to be 'completely inappropriate'[47] at which point the Magistrate ordered that the audio link be muted.[48] The Magistrate then observed that before the Family Court could mute the audio link, the child's father himself had disconnected the link.[49]
[44] Family Court transcript, pages 33 – 34, 54.
[45] Family Court transcript, page 34.
[46] Family Court transcript, page 54.
[47] Family Court transcript, page 54.
[48] Family Court transcript, page 54.
[49] Family Court transcript, page 54.
At the conclusion of the Family Court hearing, the learned Magistrate reserved his decision. There was no evidence of what the learned Magistrate decided in relation to the contact orders but, having regard to the submissions made by Ms B in the Review Application, we infer that the learned Magistrate declined to make any contact orders.

The Complaint and the Decision

In the Complaint, Ms B alleged that during the Family Court hearing Mr Bannerman 'slandered [Ms B] to the [Family Court] and all those people who were at the [Family Court]'[50] and that Mr Bannerman 'deliberately lied to the [Expert] regarding [Ms B]' saying:
•[Ms B] was accused of having a criminal record, which [she does] not. This is a lie and [Mr Bannerman] has committed perjury.
•[Ms B] was accused of being known to police, which [she is] not. This is a lie and [Mr Bannerman] has committed perjury.
•[Ms B has] been accused of being charged with perverting the course of justice, which [she has] not. This is a deliberate lie, and [Mr Bannerman] has committed perjury.'[51]
[50] First Respondent's Bundle, page 6.
[51] First Respondent's Bundle, page 6.
On 14 October 2021, a member of the Rapid Resolution Team (RRT) of the LPCC sent an email to Ms B requesting her to provide a copy of the Family Court transcript to enable the RRT to respond to her concerns.[52] Ms B sent the Family Court transcript to the LPCC the following day.[53]
[52] First Respondent's Bundle, page 20.
[53] First Respondent's Bundle, page 21.
On 14 February 2022, an investigator from the RRT sent a letter to Ms B[54] (LPCC's 14 February 2022 letter) which noted that Ms B had raised further concerns, namely:
[54] First Respondent's Bundle, pages 142 – 147.
1.That Mr Bannerman presented evidence that related to a future criminal trial. [Ms B raised] concerns about:
(a)How [Mr Bannerman] obtained these records;
(b)If those physical documents were presented to the Magistrate; and
(c)If Mr Bannerman confused the Family Court in the presentation of these documents.
2.That supporting material submitted by [Ms B's son] was missing:
(a)[Ms B's] concern that Mr Bannerman was involved in that event.
3.Various actions by the Magistrate, such as muting [the link to] [Ms B's son] so that he could not hear the proceedings.
In the LPCC's 14 February 2022 letter, the investigator informed Ms B that when matters were dealt with by the RRT they were treated as enquiries, rather than formal complaints, and that if the RRT identified a possible conduct issue it may refer a matter to the LPCC's Investigations Team to conduct a complaint investigation. The investigator advised that all the issues Ms B had raised with the RRT had been reviewed and considered and that he had 'not identified any conduct issues on the part of the practitioner that require[d] further investigation and there [was] no further role for the RRT'.[55]
[55] First Respondent's Bundle, page 146.
On 30 March 2022, Ms B responded in writing[56] to the LPCC's 14 February 2022 letter (Ms B's 30 March 2022 letter) in which she maintained her allegations that during the Family Court hearing Mr Bannerman had defamed her character, had purposely misled the Family Court and had perjured himself.
[56] First Respondent's Bundle, pages 150 – 155.
In response to Ms B's 30 March 2022 letter, on 28 April 2022 the Manager, Dispute Resolution, of the LPCC, sent a letter to Ms B[57] (LPCC's 28 April 2022 letter) noting that Ms B's 30 March 2022 letter had also raised additional concerns that:
1.Mr Bannerman had defamed Ms B in the Family Court hearing; and
2.Mr Bannerman intentionally misled the Family Court in evidence he gave about Ms B and her son.
[57] First Respondent's Bundle, pages 156 – 159.
In the LPCC's 28 April 2022 letter, the Manager, Dispute Resolution, stated that he had reviewed all the material Ms B had provided, including the Family Court transcript and he had 'not identified any possible unsatisfactory professional conduct, (or professional misconduct) that requires any further investigation'.[58] In response to that letter, Ms B advised that she disagreed with his observations and requested that a formal decision be made.[59]
[58] First Respondent's Bundle, page 159.
[59] First Respondent's Bundle, pages 160 – 163.
The First Respondent made the Decision on 16 May 2022.[60]
[60] First Respondent's Bundle, pages 1 – 3.
In the Decision, the First Respondent referred to the LPCC's 14 February 2022 letter and the LPCC's 28 April 2022 letter, in addition to Ms B's correspondence, and identified the Complaint made by Ms B as being that:
1.Mr Bannerman allegedly lied, committed perjury and slandered [Ms B] in [the Family Court] where [Ms B was] not a party to the case;
2.Mr Bannerman presented evidence in [the Family Court] that related to a future criminal trial, where [Ms B was] concerned about:
(a)How [Mr Bannerman] obtained these records;
(b)If the physical documents discussed were presented to the Magistrate; and
(c)If [Mr Bannerman] confused [the Family Court] about these documents; and
3.[Ms B] had concerns about actions of the [Family Court] such as the Magistrate putting [Ms B's son] on mute, and that there were pages missing in the documents to the [Family Court] provided under subpoena.
We will refer to each of these aspects of the Complaint as the first, second and third planks of the Complaint.
In the Decision, the First Respondent advised Ms B that, after careful consideration of the material and responses provided by her in support of her concerns, he:
(a)dismissed the first plank of the Complaint under s 415(1)(b) of the LP Act as being misconceived;
(b)dismissed the second plank of the Complaint under s 415(1)(b) of the LP Act as lacking in substance; and
(c)dismissed the third plank of the Complaint under s 415(1)(b) as being misconceived.
For completeness, we note that the First Respondent made the Decision as the delegate of the LPCC, although he did not indicate in the Decision that he was acting in the exercise of delegated authority.[61] Because the Decision was made by the First Respondent as the delegate of the LPCC, the President made an order on 28 June 2022, pursuant to s 36(5) of the SAT Act amending the name of the First Respondent to be the 'Law Complaints Officer as delegate of the Legal Profession Complaints Committee'.[62] We will return to the question of the proper name of the First Respondent later in these reasons.
[61] As the Tribunal has previously observed, when a delegate makes a decision in the exercise of delegated authority, they should indicate in the decision that they are acting in the exercise of that delegated authority: Chen and Law Complaints Officer [2022] WASAT 26 (Chen) at [68] – [69].
[62] Although the LPCC no longer exists (following the repeal of the LP Act) as a matter of fact, the decision‑maker whose decision is under challenge pursuant to the continued operation of s 435 of the LP Act is the First Respondent as now described; see s 319(2) and s 319(3) of the Legal Profession Uniform Law Application Act 2022 (WA) (Application Act).

The parties' submissions on the review

In the Review Application, Ms B described the order she wanted the Tribunal to make as being that 'Mr Bannerman's license (sic) to practice as a lawyer [should be] revoked'.
In her written submissions on the review,[63] Ms B submitted that Mr Bannerman 'grossly misled' the Family Court and, as a result, the child's father was denied access to the child and that, as a grandparent, she 'was also denied any visiting or care arrangements, contact [with her] grandson'.[64] Ms B submitted that this was a direct consequence of Mr Bannerman's 'deplorable behaviour' in the Family Court.
[63] Applicant's Submissions dated 9 September 2022 (revised on 13 September 2022).
[64] Applicant's Submissions dated 9 September 2022 (revised on 13 September 2022), page 1.
Ms B further submitted that '[b]y his appalling behaviour, [Mr Bannerman] ensured that [Ms B] would have no contact with [the child], … by misleading the [Family Court] with his defamatory and slanderous allegations about [her]'.[65] Ms B said that Mr Bannerman had 'never at any time had any evidence, to support his allegations'[66] and that what occurred was '[i]n essence, a complete fabrication with clear intent to defame, slander [her] and ensure that [the child] was unable at any time now, or in the future, to have a loving relationship with his father, grandmother, and extended family'.[67]
[65] Applicant's Submissions dated 9 September 2022 (revised on 13 September 2022), page 2.
[66] Applicant's Submissions dated 9 September 2022 (revised on 13 September 2022), page 2.
[67] Applicant's Submissions dated 9 September 2022 (revised on 13 September 2022), page 2.
Ms B also submitted that she was gravely concerned about the child's welfare due to the mental health history of the child's mother. Ms B asked the Tribunal to subpoena the mental health history of the child's mother. Ms B stated that the purpose of this request was to 'view the data, uncensored/redacted/untouched because, clearly the Family Court is unaware of the original documentation'.[68] (Given that such documentation would be irrelevant to the determination of the issues arising in the review, it has not been necessary to give further consideration to the issue of a subpoena.)
[68] Applicant's Submissions dated 9 September 2022 (revised on 13 September 2022), page 2.
The First Respondent provided submissions.[69] These submissions did not address the merits of the Decision, but rather focused on assisting the Tribunal to make its decision on the review. Accordingly, the First Respondent confined his submissions to setting out the general principles applicable to a review pursuant to s 435(1) of the LP Act. The First Respondent submitted that it was implicit from the Decision that the First Respondent had formed the view that the Complaint required no investigation, and summarily dismissed the Complaint under s 415 of the LP Act.
[69] First Respondent's Submissions dated 13 October 2022.
The First Respondent submitted that on the review the Tribunal would stand in the shoes of the First Respondent (as the delegate of the LPCC) and exercise the same powers and, for that reason, the Tribunal could not, on the review, make an order to revoke Mr Bannerman's practising certificate, even if it set aside the Decision.
Mr Bannerman also filed submissions.[70] Mr Bannerman denied that any of his actions were inappropriate.
[70] Second Respondent's Submissions dated 13 October 2022.
Mr Bannerman observed that Ms B was not a party to the Family Court proceedings and accordingly she had no standing to seek any orders in her favour at the Family Court hearing. Mr Bannerman denied having acted inappropriately in any way to seek to deny Ms B any right of contact with the child and submitted that he had done nothing other than to appropriately utilise subpoenaed documents and evidence which was provided to the Family Court. Mr Bannerman submitted that, to the best of his recollection, the references he made during the hearing to subpoenaed documents were references to the bundle of subpoenaed documents which had been produced to the Family Court, was viewed by the Expert and the ICL, and which was available for inspection by the child's father through his solicitors whilst they were engaged.
Mr Bannerman submitted that the purpose of submissions made by a legal practitioner during a hearing was to advance, in an ethical and appropriate manner, the orders sought by their client.

The Tribunal's jurisdiction

On 1 July 2022, the LP Act was repealed by s 260(a) of the Legal Profession Uniform Law Application Act 2022 (WA) (Application Act). That Act provides that the Legal Profession Uniform Law (WA) (Uniform Law) applies as a law of Western Australia on and from 1 July 2022 (commencement day).[71]
[71] Application Act, s 6.
However, various transitional provisions in the Application Act deal with matters commenced, but not completed, under the LP Act. This case falls within s 319(1) and s 319(2) of the Application Act. Prior to the commencement day, Ms B had made an application to the Tribunal for a review of the First Respondent's decision, and the Tribunal had not made a final decision before the commencement day.[72] That being the case, s 435 of the LP Act applies to these proceedings as if that section were not repealed.[73] As a result, the Tribunal continues to have jurisdiction under s 435 of the LP Act to deal with the Review Application.
[72] Application Act, s 319(1).
[73] Application Act, s 319(2).
For completeness, we should deal with the status of the First Respondent and explain why we have concluded that the First Respondent continues to be properly named as the Law Complaints Officer as the delegate of the LPCC, notwithstanding the repeal of the LP Act.
The repeal of the LP Act means that the LPCC established under that Act no longer exists. Furthermore, the office of the Law Complaints Officer established under the LP Act also no longer exists. And, necessarily, delegations of authority granted under the LP Act also cease to operate (subject to the application of any transitional provision).
However, the Application Act provides that 'the Legal Services and Complaints Committee established under [the Application Act] is the same entity as, and a continuation of, the Complaints Committee'.[74] Furthermore, the person who occupied the office of Law Complaints Officer under the LP Act immediately before the commencement day 'is taken, on and from commencement day, to be appointed to the office of Legal Services and Complaints Officer under s 79(2) [of the Application Act] until the expiry of the term for which the person was appointed'.[75] These provisions, at first blush, might be understood to suggest that the name of the First Respondent requires amendment, to reflect the fact that the Law Complaints Officer is now the Legal Services and Complaints Officer, and that the Legal Services and Complaints Committee is the correct name of the body formerly known as the LPCC.
[74] Application Act, s 269.
[75] Application Act, s 272.
While the provisions of the Application Act are, regrettably, somewhat obtuse on this question, we have concluded that the better view is that, for the purposes of this review, which continues to be a Review under s 435 of the LP Act, the correct name for the First Respondent continues to be the Law Complaints Officer as the delegate of the LPCC. We have reached that conclusion for the following reasons.
First, that conclusion is supported by the language of s 319(2), (3) and (4) of the Application Act.
Each of those subsections contemplate that what the Tribunal will be reviewing is the decision of the 'Complaints Committee', 'as if s 435 had not been repealed'. (Under s 435 of the LP Act, the Decision under review was that of the LPCC (or its delegate). And in Part 16 of the Application Act (which contains s 319) the 'Complaints Committee' is defined to mean the LPCC established under s 555(1) of the LP Act.[76])
[76] Application Act, s 262.
Furthermore, s 319(3) contemplates that if the review is successful, the Tribunal will 'set aside the decision of the Complaints Committee to dismiss the complaint under the LP Act'. Subsection 319(3) also makes clear that it is only if and when the Tribunal sets aside the decision of the Complaints Committee that the complaint in relation to the practitioner will thereafter be dealt with as a complaint under the Uniform Law.
Similarly, s 319(4) contemplates that if the review is not successful, the Tribunal will affirm 'the decision of the Complaints Committee'.
Secondly, as a matter of fact, the Decision under review was made by the Law Complaints Officer. Under s 79(1) of the Application Act, a new office of the Legal Services and Complaints Officer is established. But the latter office is not a continuation of the office of the Law Complaints Officer. Instead, under s 272(1) of the Application Act, from commencement day, the Law Complaints Officer is taken to be appointed to the new office of the Legal Services and Complaints Officer. In that respect, there is a significant difference between the terms of s 272(1) and s 269 of the Application Act.
Thirdly, as a matter of fact, the Law Complaints Officer made the Decision under review in this case pursuant to the exercise of authority delegated to him by the LPCC. Nothing in the Application Act provides that delegations made by the Complaints Committee under the LP Act are to be treated as continuing in force under the Uniform Law or that they are to be treated as delegations made by the Legal Services and Complaints Committee. In those circumstances, it would simply not be correct to describe the officer who made the decision under review as the delegate of the Legal Services and Complaints Committee.
Fourthly, we have not overlooked the incongruity that might be considered to arise from the fact that the title of the First Respondent, as presently named in the proceedings, refers to a person whose office no longer exists. However, in our view, the effect of s 319(2) of the Application Act must be understood as requiring continued reference to that office only for the limited purpose of the review itself.[77]
[77] In that sense, the effect of s 319(2) of the Application Act is not different from s 37(1) of the Interpretation Act 1984 (WA) in those cases where it operates to permit the continuation of a legal proceeding notwithstanding the repeal of the written law under which that proceeding was commenced. In such a case, the proceeding may be continued as if the repealing written law had not been passed.
Consequently, when under s 319 of the Application Act, the Tribunal is dealing with a review of a decision made by the LPCC or its delegate (pursuant to s 435 of the LP Act, as if that section had not been repealed), the correct name of the decision maker will be the LPCC, or the Law Complaints Officer as the delegate of the LPCC, as the case may be. Only if the review is successful and the Tribunal sets aside the decision under review will any question arise as to the proper name of the decision maker, and then that question will arise only for the purpose of formulating consequential orders, such as an order to remit the complaint for further consideration. From that point onwards, it will be the Legal Practice Board, as the local regulatory authority for the purposes of Chapter 5 of the Uniform Law[78] (but with authority to delegate its functions under Chapter 5 of the Uniform Law to the Legal Services and Complaints Committee or to the Legal Services and Complaints Officer[79]) which will be responsible for dealing with the complaint, under Part 5.2 of the Uniform Law.
[78] Application Act, s 20.
[79] Application Act, s 37.
For completeness we note that, in another similar proceeding, the Tribunal has recently reached the same conclusion, largely for the same reasons.[80]
[80] Malabar and Law Complaints Officer as delegate of the Legal Profession Complaints Committee [2023] WASAT 80 at [32] – [38].

The Tribunal's functions on a review under s 435 of the LP Act

Section 435 of the LP Act provides:
(1) Subject to subsection (2), a person aggrieved by —
(a) a decision of the Complaints Committee to dismiss a complaint; or
(b) a decision made by the Complaints Committee under section 426,
may apply to the State Administrative Tribunal for a review of the decision.
(2) If the Complaints Committee, in its reasons for its decision, specifically finds the complaint —
(a) to be trivial, unreasonable, vexatious or frivolous; or
(b) in the case of a complaint purporting to be made under section 410(1)(e), to be a matter in which the complainant does not have, or did not have, a direct personal interest,
the person aggrieved cannot apply to the State Administrative Tribunal for a review of the decision without the leave of the Tribunal.
The Decision under review was made pursuant to s 415 of the LP Act which provides:
(1) The Complaints Committee may dismiss a complaint if —
(a) further details are not given, or the details of the complaint are not verified, as required by the Complaints Committee under section 412; or
(b) the complaint is vexatious, misconceived, frivolous or lacking in substance; or
(c) the conduct complained about is the subject of another complaint; or
(d) it is not in the public interest to deal with the complaint having regard to the fact that the name of the Australian legal practitioner to whom the complaint relates has already been removed from any Australian roll on which the practitioner was enrolled.
(2) The Complaints Committee must dismiss a complaint if —
(a) the complaint was made more than 6 years after the conduct complained of is alleged to have occurred, unless a determination is made under section 411 in relation to the complaint; or
(b) the conduct complained about has been the subject of a previous complaint that has been dismissed; or
(c) the complaint is not one that the Complaints Committee has power to deal with.
(3) The Complaints Committee may dismiss a complaint under this section without completing an investigation if, having considered the complaint, the Complaints Committee forms the view that the complaint requires no further investigation.

The Complaint was summarily dismissed under s 415 of the LP Act on the basis that it was misconceived or lacking in substance. The term 'misconceived' connotes a misunderstanding of legal principle, while 'lacking in substance' connotes an untenable proposition of law or fact.[81]
[81] Laurent and Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 at [23] (Pritchard DP).
As we have already noted, the First Respondent submitted that the Complaint was dismissed without an investigation being completed. We accept that submission. It is apparent that the Complaint was dismissed after the First Respondent had reviewed the Family Court transcript, and without the continuation or completion of any, or any further, investigation of the Complaint.
The Tribunal's functions on a review under s 435 of the LP Act, in a case where a complaint is summarily dismissed without the completion of any investigation of the complaint, were set out in Chen and Law Complaints Officer [2022] WASAT 26 (Chen) at [86] – [95] as follows (footnotes omitted):
Because s 435(1) of the LP Act expressly gives the Tribunal jurisdiction to review a decision of the LPCC to dismiss a complaint, an application of that kind comes within the Tribunal's review jurisdiction.
A review is to be dealt with in accordance with the enabling Act (in this case, the LP Act) and the State Administrative Tribunal Act 2004 (WA) (SAT Act), subject to any modification of the operation of the SAT Act by the enabling Act.
The nature of review proceedings is described in s 27 of the SAT Act, which provides:
(1)The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3)The reasons for decision provided by the decision‑maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
The phrase 'hearing de novo' as it pertains to the Tribunal's review jurisdiction under the SAT Act involves a fresh hearing, whereby the Tribunal may set aside the decision the subject of the review, regardless of any demonstrated error on the part of the original decision-maker. The Tribunal is required to make its own decision, on the evidence before it, which includes all the evidence before the decision-maker, and any additional evidence put before the Tribunal on the review. Given that the Tribunal is conducting a hearing de novo, no party bears any legal or practical onus of proof. In other words, [the applicant] does not bear any onus to show that a departure from the Decision is justified. As s 27(2) makes clear, the question for the Tribunal is simply what is the correct and preferable decision, having regard to all of the material before it at the date of the review.
On the review, the Tribunal has functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision. The Tribunal may affirm or vary the decision being reviewed. It may also set aside the decision and substitute its own decision or send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate.
On a review under s 435, the Tribunal stands in the shoes of the LPCC (or Law Complaints Officer, acting with the delegated authority of the LPCC, as the case may be). In this case, the Decision was, in substance, that the Complaint should be summarily dismissed under s 415 of the LP Act. At the point in time when the Decision was made, the Complaint had been received from [the applicant], and had been referred to the RRT where it was treated as an enquiry, with a view to ascertaining whether the Complaint raised an issue concerning the conduct of a practitioner which required investigation. However, some preliminary investigations were clearly conducted: the legal officer at the RRT requested that [the applicant] provide details of the Complaint, and [the practitioner] was advised of the Complaint, and provided documents in relation to the Complaint. Having undertaken those preliminary investigations, the legal officer at the RRT advised [the applicant] that [the applicant's complaint] did 'not enliven any conduct issues' and that 'no conduct issue … requires investigation'. In other words, he concluded that there was nothing to suggest that [the practitioner's] conduct warranted further investigation to determine whether disciplinary action was required on the ground that he had engaged in either unsatisfactory professional conduct or professional misconduct. The Complaint was then referred to the Law Complaints Officer to determine what action should be taken in relation to the Complaint.
The functions of the LPCC at such an early stage in the consideration of a complaint, and prior to the completion of an investigation of a complaint, are as follows:
(a)the LPCC may summarily dismiss the complaint if any of the circumstances described in s 415(1) of the LP Act apply, that is:
•if a complainant does not verify the details of a complaint as requested by the LPCC;
•if the complaint is vexatious, misconceived, frivolous or lacking in substance;
•if the conduct complained of is the subject of another complaint; or
•if it is not in the public interest to deal with the complaint because the practitioner's name has already been removed from the roll of practitioners;
(b)the LPCC must summarily dismiss the complaint if the circumstances in s 415(2) apply, that is:
•if the complaint is made more than 6 years after the alleged conduct;
•if the conduct was the subject of a previous complaint that was dismissed; or
•the complaint is not one that the LPCC has power to deal with;
(c)the LPCC may summarily dismiss the complaint, pursuant to s 415(3), without completing an investigation, if, having considered the complaint, the LPCC forms the view that the complaint requires no further investigation; or
(d)otherwise, the LPCC must proceed to complete an investigation into the complaint, pursuant to s 421(2) (subject to s 421(3) of the LP Act).
In the present case, the role of the Tribunal, standing in the shoes of the Law Complaints Officer, is to determine which of those courses of action constitutes the correct and preferable decision.
This is not a case in which s 415(1)(a), s 415(1)(c), s 415(1)(d) or s 415(2) of the LP Act applies. That is because this was not a case in which [the applicant] failed to provide further details of the Complaint upon request by the LPCC. This is not a case in which the conduct complained about is the subject of another complaint, or which was the subject of another complaint which was dismissed. The Complaint is not one in which the conduct complained of occurred more than six years prior to the Complaint being made. And the Complaint is not one which, at least on its face, is outside the scope of complaints with which the LPCC is empowered to deal.
That being the case, the questions for the Tribunal are:
(a) whether the information contained in the Complaint, and the evidence obtained thus far in the investigation, warrant the completion of the investigation of the Complaint; or
(b) whether the Complaint is vexatious, misconceived, frivolous or lacking in substance, and should be dismissed; or
(c) whether the Complaint requires no further investigation, and should be dismissed.
In Chen, the Tribunal considered that the question of whether the completion of the investigation was warranted should be answered by considering two matters.[82]
[82] Chen at [96], [97] and [99].
The first matter was whether the information in the complaint, and the evidence obtained thus far in the investigation, gave rise to a reasonable cause to suspect that the practitioner who had been guilty of unsatisfactory professional conduct,[83] or professional misconduct.[84]
[83] As defined in s 402 of the LP Act.
[84] As defined in s 403 of the LP Act.
The second matter for consideration was whether further investigation would be likely to uncover additional evidence which may alter the conclusion as to whether there is reasonable cause to suspect that the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.
In Chen, the Law Complaints Officer summarily dismissed the complaint without completing an investigation because he formed the view that the complaint required no further investigation. He did not make a finding, in that case, that the Complaint should be summarily dismissed for any other reason.
In contrast, in this case, the First Respondent dismissed the Complaint on the basis that the matters complained of were misconceived or lacking in substance, for the purposes of s 415(1)(b) of the LP Act. That being the case, the primary question for our consideration is whether the dismissal of the Complaint on those bases was the correct and preferable decision.
As a result, it is unnecessary to resolve the question, raised in the First Respondent's submissions, as to whether s 415(3) provides a discrete basis for summarily dismissing a complaint or whether it merely confirms that a complaint may be dismissed even if an investigation has not been completed.[85]
[85] Cf Gonciarz v Legal Profession Complaints Committee [2021] WASC 351 at [28] – [29].

Our review of the Complaint

Applying the principles outlined in Chen, in reaching the correct and preferable decision, the Tribunal must consider whether the information contained in the Complaint and disclosed by the investigation conducted so far, gives rise to reasonable cause to suspect that Mr Bannerman engaged in conduct which constituted unsatisfactory professional conduct or professional misconduct. If not, the Tribunal needs to consider whether further investigation of the Complaint is likely to uncover additional evidence which may alter that conclusion. Only if either of these questions is answered yes would the correct and preferable decision be that the First Respondent should complete the investigation of the Complaint.[86]
[86] Chen at [104].
We will consider the information contained in the Complaint, disclosed by the investigation conducted so far, and filed in the Tribunal, in relation to each of the planks of the Complaint.

Is there reasonable cause to suspect that Mr Bannerman engaged in unprofessional conduct or professional misconduct on the basis alleged in the first plank of the Complaint?

The first basis on which the Complaint may be understood to allege that Mr Bannerman may have engaged in unsatisfactory professional conduct or professional misconduct concerns Mr Bannerman's questioning of the Expert in the Family Court hearing. In the first plank of the Complaint, Ms B alleged that Mr Bannerman lied, committed perjury and slandered her during the Family Court hearing.
More particularly, Ms B alleged that Mr Bannerman had falsely accused her of having a criminal record; had falsely accused her of being known to police; and had falsely accused her of being charged with perverting the course of justice. Ms B complained that each of these allegations 'was a lie', such that Mr Bannerman had committed perjury.
The allegations in this first plank of the Complaint are based on a fundamental misunderstanding as to what actually occurred.
Mr Bannerman was not giving evidence in the Family Court hearing. There was no basis whatsoever for contending that he had lied, or that he had perjured himself.
It appears, however, that what Ms B's allegations really amount to are that Mr Bannerman misled the Family Court or the Expert (in the course of his cross-examination of the Expert), or alternatively that he had no proper basis for the questions he put to the Expert in cross‑examination. Understood in that way, there is no merit in the allegations.
There is no doubt that the duty of counsel not to mislead a court in any respect is paramount.[87] There is also no doubt that a legal practitioner, as an officer of the court, must not present any evidence, or make any allegation, for which there is, in their opinion, an insufficient evidentiary foundation.[88] Allegations of criminal conduct by another person are especially serious. There is no doubt that a legal practitioner appearing as counsel has a duty not to suggest alleged criminality on the part of another person unless the practitioner believes on reasonable grounds that the material then available to the practitioner provides a proper basis for the allegation.[89] These principles apply in the context of Family Court proceedings as much as they do in any other litigation.[90]
[87] Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56, 73 (Parker J), see also at [60] (Ipp J); cf Clone Pty Ltd v Players Pty Ltd (in Liquidation) [2016] SASCFC 134; 127 SASR 1 (Blue and Stanley JJ; Debelle AJ); cf also Victorian Legal Services Commission v Sandbach [2022] VCAT 1477, at [63] – [65] (Quigley J); see also r 34(1) of the Legal Profession Conduct Rules 2010 (WA) (now repealed, but which were in force at the time of the Family Court hearing).
[88] See r 36(4) of the Legal Profession Conduct Rules 2010 (WA) (now repealed, but which were in force at the time of the Family Court hearing); Clyne v New South Wales Bar Association (1960) 104 CLR 186; pages 196, 200 – 201.
[89] See r 36(2)(a) and cf also r 36(5)(a) of the Legal Profession Conduct Rules 2010 (WA) (now repealed, but which were in force at the time of the Family Court hearing).
[90] Legal Profession Complaints Committee and Segler [2013] WASAT 117.
There is nothing in the evidence before the Tribunal which provides any support for Ms B's allegations.
The Family Court transcript reveals that during his cross‑examination of the Expert, Mr Bannerman referred to information which indicated that the police had investigated Ms B's alleged role in the child's father's alleged attempt to pervert the course of justice. As we have already explained, it is apparent that the information on which Mr Bannerman's questions were based was contained in the subpoenaed documents. That information was, in essence, the evidence upon which the police relied in charging the child's father with the offence of attempting to pervert the course of justice.
Nothing in the Family Court transcript suggests that Mr Bannerman did anything other than put to the Expert what was revealed in the subpoenaed documents about the police investigation of the child's father's conduct, and Ms B's alleged role in relation to that conduct. There is no basis for concluding that Mr Bannerman put questions to the Expert for which he did not have a proper foundation in the subpoenaed documents.
As we have also noted, Mr Bannerman expressly drew to the attention of the Expert (and the Family Court) that it was not clear from the subpoenaed documents whether Ms B had been charged with a conspiracy to attempt to pervert the course of justice.[91] He did not mislead the Expert or the Family Court by suggesting that Ms B had been charged with an offence in circumstances where he knew she had not been charged.
[91] Family Court transcript, page 53.
Further, we note that the subpoenaed documents had been available for inspection by the Expert and when it became clear that the Expert had not had the opportunity to review those documents in preparing his report, the Expert was expressly given leave to review the subpoenaed documents before Mr Bannerman continued with his cross‑examination. There is no basis for suspecting that the Expert was misled by Mr Bannerman's questions about those documents, in circumstances where he had had the opportunity to review them and their contents.
Furthermore, the subpoenaed documents were tendered in evidence by Mr Bannerman, and thus formed part of the evidence which the Family Court could assess in reaching its decision.[92] As the learned Magistrate was able to review the documents, and their contents, there is no basis for suggesting that the learned Magistrate was, or could have been, misled by the matters Mr Bannerman put to the Expert in cross-examination.
[92] Family Court transcript, pages 78 – 80, 84.
As we have explained, the child's mother, for whom Mr Bannerman was acting, opposed the contact orders, on the basis that she did not consider them to be in the child's best interests. But quite apart from the attitude of the child's mother, there is an argument that as counsel for a party in a proceeding in the Family Court involving child contact issues, Mr Bannerman was obliged to ensure that all evidence which might have a bearing on the Family Court's assessment of the best interests of the child was drawn to the attention of the Expert, and to the Family Court.[93] It was therefore quite proper for Mr Bannerman to test the basis on which the Expert had formed his opinion as to whether contact orders would be in the child's best interests, and to do so by ensuring that the Expert had taken into account all information that was potentially relevant to the formation of that opinion. The nature of the offences of which the child's father had been convicted, and the nature of the charges he was facing, were clearly relevant to the formation of that opinion.
[93] Cf ss 60CA and 60D Family Law Act 1975 (Cth) applying by virtue of ss 66A and 66HC of the Family Court Act 1997 (WA). See also Clarkson v Clarkson (1972) 19 FLR 112, 114 (Selby J); see also Dal Pont GE, Lawyers' Professional Responsibility (2021) [18.130], and Prof Mushin N, Ethics in Family Law – Beyond legal principles and into value judgments (2018) 30 SAcLJ 427.
Accordingly, there was nothing inappropriate or improper in Mr Bannerman asking the Expert whether, in reaching an opinion as to whether it would be in the child's best interests to have contact with the child's father, he had been aware of the child's father's previous convictions or that the child's father was facing criminal charges, including for the possession of methylamphetamine with intent to sell or supply, and for attempting to pervert the course of justice.
Similarly, there was nothing inappropriate or improper in Mr Bannerman asking the Expert whether, in reaching an opinion as to whether it would be in the child's best interests to have contact with the child's father's family, including Ms B, he had been aware of Ms B's alleged involvement in the child's father's alleged attempt to pervert the course of justice.
Clearly the learned Magistrate did not regard Mr Bannerman's questioning as in any way inappropriate or improper. He did not intervene or rule against any question being put by Mr Bannerman. And, as we have noted, the Expert accepted that the matters drawn to his attention by Mr Bannerman, in relation to Ms B's alleged conduct, were relevant to his formation of an opinion about what was in the child's best interests.
This first plank of the Complaint was clearly based on a misunderstanding, on Ms B's part, about the legal principles concerning the role of counsel, and about the requirement for a proper foundation for questions put in cross‑examination, and for allegations made in the course of a hearing about the conduct of others. The first plank of the Complaint was clearly misconceived, for the purposes of s 415(1)(b) of the LP Act.
In our view, the available evidence does not give rise to any basis for concluding that there is reasonable cause to suspect that Mr Bannerman engaged in conduct which constituted unsatisfactory professional conduct or professional misconduct during his cross‑examination of the Expert.

For the sake of completeness, we note that this is not a case in which any further investigation could uncover additional evidence which might alter that conclusion. All the relevant evidence was before the First Respondent and is before the Tribunal.

Is there reasonable cause to suspect that Mr Bannerman engaged in unprofessional conduct or professional misconduct on the basis alleged in the second plank of the Complaint?

The next plank of the Complaint may be understood to allege that Mr Bannerman may have engaged in unsatisfactory professional conduct or professional misconduct in that:
·in cross‑examination of the Expert, Mr Bannerman improperly referred to a pending charge against the child's father, namely a charge of attempting to pervert the course of justice;
·that Mr Bannerman improperly obtained records in relation to that pending charge; and
·that Mr Bannerman confused or misled the Magistrate about those records.
As we have already noted, it is apparent from the Family Court transcript that the basis for the questions put by Mr Bannerman about the pending charges against the child's father was information drawn from the police charge sheets and associated documents which were among the subpoenaed documents. There is no basis for alleging that Mr Bannerman did not have a proper foundation for the questions he asked, in relation to the child's father, in the course of his cross‑examination of the Expert.
Also, for the reasons set out above in relation to the first plank of the Complaint, there was nothing inappropriate or improper in Mr Bannerman referring to those documents and asking questions of the Expert in relation to those charges.
As for Ms B's allegation that Mr Bannerman confused or misled the Expert or the Family Court, for the reasons set out above in relation to the first plank of the Complaint, there is no basis whatsoever for concluding that either the Expert, or the Family Court itself was, or could have been, misled about the offences of which the child's father had been convicted and those for which he had been charged and was awaiting trial. In the course of his cross‑examination of the Expert, Mr Bannerman made clear which matters were the subject of charges and those for which the child's father had been convicted. The Expert was expressly given the opportunity to review the subpoenaed documents and which were the basis for Mr Bannerman's questions. And as we have already noted, Mr Bannerman tendered the subpoenaed documents as evidence, so they were available to the learned Magistrate to consider as part of the evidence.
This aspect of the Complaint proceeds on the basis of an untenable proposition of fact or law (that Mr Bannerman misled the Expert or the Family Court in the course of his cross-examination of the Expert). This aspect of the Complaint is thus properly characterised as lacking in substance for the purposes of s 415(1)(b) of the LP Act.
Turning to the allegation that Mr Bannerman improperly obtained the documents to which he referred, namely the subpoenaed documents, there is no basis whatsoever for that allegation. The subpoenaed documents were produced in answer to a subpoena issued by the Family Court. All of the subpoenaed documents were available for inspection by Mr Bannerman, as counsel for the child's mother, by the solicitors for the child's father, by the ICL, and by the Expert.
This aspect of the Complaint is founded on an untenable proposition of fact or law, namely that Mr Bannerman improperly obtained the documents. It is clearly lacking in substance for the purposes of s 415(1)(b) of the LP Act.
In our view, having regard to all of the available evidence, there is no reasonable cause to suspect that Mr Bannerman engaged in conduct which constituted unsatisfactory professional conduct or professional misconduct in the manner alleged in this second plank of the Complaint.
For the sake of completeness, we do not consider that further investigation is likely to uncover additional evidence which may alter that conclusion. As we have already observed, all the relevant evidence was before the First Respondent and is before the Tribunal.

Is there reasonable cause to suspect that Mr Bannerman engaged in unprofessional conduct or professional misconduct as alleged in the third plank of the Complaint?

The third plank of the Complaint concerns the actions or decisions of the Family Court in relation to two matters: the decision to put the child's father's audio-link on mute during the Family Court hearing and allegations that documents, namely the medical records, which had been subpoenaed by the Family Court, had gone missing.
Both of these allegations, in so far as they are raised in relation to Mr Bannerman, are entirely misconceived.
Turning first to the decisions to place the child's father's audio-link on mute, as we have already explained by reference to the Family Court transcript, each of those decisions was made by the learned Magistrate. Mr Bannerman had no control over the audio-link.
This aspect of the Complaint is clearly misconceived in that it connotes a misunderstanding as to the control of the Family Court proceedings.
We turn, next, to Ms B's allegation that Mr Bannerman was involved in the alleged disappearance of the medical records which were said to have been produced in paper form to the Family Court under subpoena. As we have explained, the Family Court transcript confirms that the Family Court had no record of receiving a paper copy of the medical records. Further, the medical records were reproduced in electronic form on CD‑ROMs and were thereafter available for inspection by the parties.
There is not a shred of evidence in the material before the Tribunal which supports the allegation made by Ms B that Mr Bannerman was somehow involved in the disappearance of any subpoenaed documents.
This aspect of the Complaint is clearly misconceived. It proceeds from a misunderstanding about the process for the production, receipt and inspection of documents under subpoena.
The available evidence does not give rise to any reasonable cause to suspect that Mr Bannerman engaged in conduct which constituted unsatisfactory professional conduct or professional misconduct in relation to the allegations in the third plank of the Complaint.
Clearly, further investigation would not uncover additional evidence which could alter that conclusion.

The correct and preferable decision on the review

Having considered, afresh, the information in the Complaint, together with all of the material filed in the Tribunal by the parties, there is no basis for reasonable cause to suspect that, on any of the bases alleged in the three planks of the Complaint, Mr Bannerman engaged in any conduct which constituted unsatisfactory professional conduct or professional misconduct.
We do not consider it likely that further investigation of the Complaint would or could alter that conclusion.
In our view, the correct and preferable decision is that the decision of the First Respondent to dismiss the Complaint under s 415(1)(b) of the LP Act, as being misconceived or lacking in substance, should be affirmed.

Orders

The Tribunal orders:
1.The decision of the First Respondent made on 16 May 2022 is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
TH
Research Associate to the Honourable Justice Pritchard
7 SEPTEMBER 2023