B v A Legal Practitioner

[2020] TASSC 50

[2020] TASSC 50

COURT:  SUPREME COURT OF TASMANIA

CITATION:                B v A Legal Practitioner [2020] TASSC 50

PARTIES:  B, P
  v
  A LEGAL PRACTITIONER

FILE NO:  2325/2019
JUDGMENT

APPEALED FROM:  PB v Legal Practitioner 1 [2019] TASLPDT 1

DELIVERED ON:  27 October 2020
DELIVERED AT:  Hobart
HEARING DATE:  18 June 2020
JUDGMENT OF:  Brett J
CATCHWORDS:

Appeal and New Trial – Appeal – General principles – Right of appeal – Nature of right – Appeal in the strict sense and appeals by way of rehearing – When rehearing does not involve rehearing de novo – Nature of appeal from Legal Profession Disciplinary Tribunal – Complaint lacking in substance – Appeal without merit – Appeal dismissed.

Aust Dig Appeal and New Trial [9]

Appeal and New Trial – Appeal – General principles – Admission of fresh evidence – In general – Discretion to receive further evidence.

Legal Profession Act 2007 (Tas), ss 433, 458, 484, 485.

Director of Public Prosecutions Act 1973 (Tas), ss 12 and 14.

Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139, 12 Tas R 337; Motor Accidents Insurance Board v Wright [2016] TASSC 13; Adamson v Pharmacy Board of Tasmania [2004] TASSC 32; Martin v Medical Complaints Tribunal [2006] TASSC 73, 15 Tas R 413, referred to.
Aust Dig Appeal and New Trial [85]

REPRESENTATION:

Counsel:
             Appellant:  In Person
             Respondent:  P Turner SC
Solicitors:
             Respondent:  Solicitor-General

Judgment Number:  [2020] TASSC 50
Number of paragraphs:  16

Serial No 50/2020

File No 2325/2019

P B v A LEGAL PRACTITIONER

REASONS FOR JUDGMENT  BRETT J

27 October 2020

1. On 7 May 2012, a magistrate made a care and protection order under the Children Young Persons and Their Families Act 1997 in respect of the appellant's child. The order granted guardianship of the child to the Secretary, and made various other orders, some of which provided for contact between the appellant and the child, and for the appellant to be consulted and notified in respect of various aspects of the child's life.

2. The respondent is a legal practitioner, who, at times relevant to this case, was employed as counsel by the Director of Public Prosecutions. It seems that her responsibilities included the provision of legal services to the Secretary in respect of child protection matters. There is no evidence that she was so employed when the order was made and, in fact, the preamble of the written order indicates that a different lawyer appeared on behalf of the Secretary at that time. The respondent's first involvement in the case seems to have been around 9 December 2015 when she engaged in correspondence with the appellant's lawyer in relation to the implementation of certain aspects of the order. This correspondence took place between December 2015 and April 2016. There is no other evidence concerning the respondent's involvement in the case.

3. On 14 April 2016, the appellant made a complaint to the Legal Profession Board (the Board) in relation to the respondent's conduct. In the section of the complaint form reserved for describing the nature of the complaint, the appellant recited the child protection order and then said:

   "Six out of the eight of these terms have not been observed. My complaint is that [the respondent] of the DPP is in contempt of court orders for not ensuring for not ensuring [sic] that these requirements have been met."

   The document did not contain any further particulars of the respondent's conduct, including the allegation that she was in "contempt of court orders".

4. It is clear that the Board attempted to clarify the factual basis of the complaint. On 20 May 2016, the Board wrote to the appellant reminding him of an undertaking to forward materials in support of the complaint. The letter requested provision within 14 days of "any materials or evidence which you say supports a complaint" against the respondent. On 30 May 2016, the appellant sent a letter to the Board in which he alleged that the respondent "indulges herself and the Department with complete obfuscation of my matter in which the best interests of the children are running a sorry second to covering up Departmental crimes". It was asserted that the respondent was "obligated as model litigant to ensure compliance of orders [sic]". The only specific conduct of the respondent referred to in the letter related to an alleged agreement entered into by the appellant, his solicitor, the respondent and representatives of the Department, to meet with the Australian Childhood Foundation (ACF) to discuss matters relevant to the child. The appellant alleged that despite an agreement that he would be included in the meeting, a meeting between the ACF and representatives of the Secretary had taken place without him. Copies of email correspondence relevant to this issue were enclosed with the letter. The appellant did not provide the Board with any other documents or information.

5. On 29 August 2016, the Board dismissed the complaint pursuant to s 433(1)(a) of the Legal Profession Act 2007 (the Act), on the basis that it was lacking in substance. In its reasons for that decision, the Board treated the complaint as relating exclusively to the agreement to meet with the ACF. It found that it had been agreed that the appellant would be involved in the meeting, but that the relevant child protection worker had met with the ACF without the appellant. It was noted that in subsequent correspondence with the appellant's lawyer, the respondent had explained that failure to notify the appellant of the meeting occurred "due to time constraints", and provided reassurance that it was her client's intention that the appellant would still be involved in the ACF process. The Board concluded that the meeting with the ACF in the absence of the appellant had not breached a condition of the court order, and that, in any event, there was no suggestion of any breach of the orders by the respondent. The Board determined that the complaint was lacking in substance "on the information provided by the complainant".

6. By letter dated 13 September 2016, the appellant applied pursuant to s 458 of the Act to have the matter determined by the Disciplinary Tribunal (the Tribunal). The case was not heard by the Tribunal until 22 July 2019. In its reasons, the Tribunal explained the delay in hearing the matter as attributable to legislative difficulties. Apart from a letter dated 19 October 2017, the appellant did not provide any further information for the purpose of, and did not appear at, the hearing before the Tribunal. The letter contained a further assertion that the impugned conduct of the respondent was her "full knowledge of" the contempt of court alleged on the part of the Secretary and the fact that she had failed to "disclose to a client when they are in contempt of court orders". The Tribunal proceeded to determine the matter on the basis of the material that was before the Board. On 5 August 2019, the Tribunal dismissed the complaint and provided written reasons for that decision: PB v Legal Practitioner 1 [2019] TASLPDT 1.

7. The appellant has now appealed to this Court from the Tribunal's decision. The grounds of appeal are as follows:

   "1   That the Legal Profession Board didn't seek clarification of my claims, therefore it wasn't supplied.

   2   All available evidence hasn't been presented."

8. The appellant has also filed a statutory declaration, which he asserts contains further information that should be taken into account as evidence on this appeal. The respondent has objected to the admission of that statutory declaration, but the respondent's counsel, Mr Turner SC, was content for me to have regard to its contents on a de bene esse basis.

9. The appeal to this Court is pursuant to s 484 of the Act. Section 485 provides that such an appeal is to be made in accordance with the Supreme Court Rules 2000 and dealt with by way of rehearing. An appeal of this nature requires this Court to re-determine the issues on the basis of material before the Tribunal, subject to a discretion to receive further evidence: Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139, 12 Tas R 337, per Blow J (as he then was); Motor Accidents Insurance Board v Wright [2016] TASSC 13. This Court should only exercise its appellate power if it is satisfied that there has been error on the part of the primary decision-maker, in this case the Tribunal: Adamson v Pharmacy Board of Tasmania [2004] TASSC 32; Martin v Medical Complaints Tribunal [2006] TASSC 73, 15 Tas R 413.

10. The respondent has made a number of helpful submissions about the basis upon which this Court should exercise its discretion to receive fresh evidence, and whether it should be exercised in this case with respect to the appellant's statutory declaration. As will become apparent, the information contained in the statutory declaration adds nothing to the appellant's case and, irrespective of such material, the complaint is lacking in substance. Accordingly, it is not necessary for me to resolve the issues raised by the respondent with respect to the additional evidence.

11. It is also unnecessary, in the circumstances of this case, to resolve a further question concerning the nature and scope of the jurisdiction exercised by the Tribunal under s 458. That section provides for the Tribunal to determine "the matter to which the (Board's) determination relates". The question arises as to whether this provision requires the Tribunal to consider again whether the complaint ought to have been summarily dismissed under s 433, or alternatively, whether the Tribunal was actually determining the complaint. It seems that the Tribunal may have assumed that its task was the latter. It is possible to identify potential injustice arising from proceeding in this way, because, irrespective of whether the Tribunal agrees that the complaint is lacking in substance, it will be finally determined without the benefit of an investigation pursuant to Part 4.4. However, in this case, the point is academic, and does not require resolution, because I am satisfied that this complaint, taken at its highest, is lacking in substance, and that the Board was correct to summarily dismiss it for that reason.

12. There is nothing in the material before the Board, or indeed in the statutory declaration, that relates to or asserts relevant conduct by the respondent, apart from that relating to the ACF meeting.  Because of this, when the appeal came before me for hearing, I made enquiry of the appellant as to the basis upon which he claims that the respondent has been guilty of unprofessional conduct or professional misconduct. In practical terms, I asked him to identify as simply as he could what it is that he claims the respondent has done wrong. It became apparent that his complaint does not rise any higher than the allegation made by him in the complaint form and the correspondence already discussed, that is that the respondent has failed to oversee the Secretary's compliance with the orders, and to prevent the Secretary from breaching them. He asserted that the Secretary has failed to comply with a number of conditions of the order, including those relating to obligations to notify him of various aspects of the child's life and to involve him in decision-making relevant to her ongoing welfare. When I asked the appellant to identify how it is that the respondent's conduct relates to these alleged breaches of the order, his argument was that because the respondent was the Secretary's lawyer, she should be exercising ongoing oversight of the Secretary's compliance with the orders. He was unable to identify any basis for this obligation, apart from her role in providing legal services to the Secretary.

13. It is clear that the complaint is misconceived, and based on a fundamental misunderstanding of the respondent's role in respect of her client's ongoing compliance with the orders. By s 12 of the Director of Public Prosecutions Act 1973, the provision of legal services to the Crown is a function of the DPP, and the employment of the respondent is for the purpose of assisting the Director to perform such functions: see s 14. Hence, the engagement of the respondent to provide legal services to the Secretary results in a normal lawyer-client relationship. Further, the care and protection order was expressed to remain in place until the child, then aged just under 5 years old, reached the age of 18 years. Hence, the conditions of the order were intended to operate on a continuous basis for a period of approximately 13 years. Under the order, the Secretary has the guardianship of the child for that period. It can be expected that, having regard to the ongoing nature of this responsibility, issues might arise from time to time, in respect of which the Secretary might seek legal advice or representation. However, apart from the correspondence concerning the ACF meeting, there was no suggestion that the respondent's services had been otherwise engaged. Further, there was no evidence that she had been engaged in the type of ongoing supervisory role which has been assumed by the appellant, and which forms the basis of his complaint. Although not impossible, it would be highly unusual for a lawyer to be engaged to undertake a long term role of that nature. It is more common that a lawyer in this situation might be engaged from time to time to advise about the effect of an order, and in particular what is required to ensure compliance, but there is no evidence that this has occurred in this case, or, even if it has, that the respondent has engaged in conduct which would provide the basis of a complaint. In any event, that is not really what the appellant is suggesting. His argument is simply that because the respondent is, or at least at one time was, the Secretary's lawyer, and the Secretary has not compiled with the order on an ongoing basis, that it should therefore be inferred that the respondent is responsible for that non-compliance. There is no logical basis for this argument. A lawyer is not, merely by reason of the lawyer-client relationship, responsible for her client's conduct. The appellant's attempt to attribute the alleged failings of the Secretary to the respondent is without substance.

14. With respect to the issue concerning the ACF meeting, the Tribunal, after considering the evidence relevant to that meeting, concluded that there was no evidence that the respondent "was in any way responsible for the fact that the ACF meeting took place without the applicant; that is, that it was a decision that she made or in which she participated, to leave the applicant out of the consultative process at that stage". The Tribunal was unable to identify any other conduct of the respondent that could reasonably be characterised as professional misconduct or unsatisfactory professional conduct. Having considered the evidence myself, I am satisfied that the Tribunal's conclusion about this question is patently correct.

15. Finally, I am satisfied that there is no merit in the assertion which underpins the grounds of appeal, that is, that the Board did not seek clarification of the appellant's claims and, accordingly, he has been deprived of an opportunity to present relevant information. As already noted, it is apparent from the record that the Board did provide him with an opportunity to present relevant information and evidence. Further, and in any event, there was no suggestion in the hearing before me that the appellant possessed any further evidence or information other than that contained in the statutory declaration.  There is no material disclosed in that declaration which is relevant to the conduct of the respondent. The documents annexed to it are a collection of emails and other forms of correspondence between representatives of the Secretary, the appellant and the appellant's lawyer, concerning the ongoing implementation of the orders. I could not find even a single reference to the respondent, and there is nothing that would justify an inference concerning her conduct. Accordingly, the provision of that information to the Board would not have made any difference to its decision to dismiss the complaint.

16. It follows that both the Board and the Tribunal correctly decided that the complaint is lacking in substance. As I have already indicated, it is based on a fundamental misunderstanding by the appellant with respect to the role of the respondent in relation to the Secretary's functions pursuant to the order. The appeal is without merit and will be dismissed.