| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : BAILEY and LEGAL PROFESSION COMPLAINTS COMMITTEE [2011] WASAT 164 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 31 OCTOBER 2011 FILE NO/S : VR 193 of 2010 BETWEEN : MARK CHRISTIAN JOSEPH BAILEY Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
GEORGE DEFTEROS
Second Respondent
Catchwords: Legal profession Application for review of decision dismissing complaint Application for extension of time for review of a decision Legislation: Legal Profession Act 2008 (WA), s 409, s 410, s 411, s 415, s 421, s 424, s 425, s 425(b), s 426, s 428, s 435, s 435(1)(a)
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State Administrative Tribunal Act 2004 (WA), s 17, s 18, s 27, s 29, s 29(3)(c)(ii)
State Administrative Tribunal Rules 2004 (WA), r 9, r 10 Result: Extension of time allowed
Application for review dismissed Category: B
Representation: Counsel:
Applicant : Mr Martin Bennett
First Respondent : N/A
Second Respondent : Mr Dylan Reynolds
Solicitors:
Applicant : Bennett & Co
First Respondent : N/A
Second Respondent : Defteros Lawyers
Case(s) referred to in decision(s):
Bailey vs Pryles & Defteros (A Firm) [2003] WASC 41
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Herron v McGregor (1986) 6 NSWLR 246
Hewett v Medical Board of Western Australia [2004] WASCA 170
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 Mr Mark Christian Joseph Bailey sought a review of a decision of the Legal Profession Complaints Committee of its decision to dismiss his complaint of professional misconduct against Mr George Defteros. The Committee determined that, because of the significant period of time which had lapsed since the complaint was made and because of Mr Bailey's failure to pursue his complaint until Mr Bailey was contacted by the Committee some seven years after the complaint was originally made, it was not in the public interest to pursue the matter further. 2 The Tribunal agreed with the Committee's finding and dismissed Mr Bailey's application.
Nature of the Application 3 On 26 August 2010, the first respondent (LPCC) resolved to dismiss a complaint brought by the applicant (Mr Bailey) against the second respondent (practitioner) alleging professional misconduct on the part of the practitioner on the grounds of overcharging for professional services. The LPCC was of the view that, given the significant period of time which had lapsed since the circumstances which gave rise to the complaint had taken place, it was not in the public interest to pursue the matter further. 4 Pursuant to s 435 of the Legal Profession Act 2008 (WA) (LP Act), a person aggrieved by a decision of the LPCC to dismiss a complaint may apply to the Tribunal for a review of that decision. An application for review by Mr Bailey was made on 11 October 2010. 5 An application under s 435 of the LP Act comes within the Tribunal's review jurisdiction, given that it involves a review of a decision made by the LPCC: see s 17 State Administrative Tribunal Act 2004 (WA) (SAT Act). By s 18 of the SAT Act, the Tribunal is required, in exercising its review jurisdiction, to deal with a matter in accordance with the SAT Act and the enabling Act. In relation to this matter, the enabling Act is the LP Act. 6 The review of a reviewable decision is by way of a hearing de novo, and is not confined to matters that were before the original decisionmaker, but may involve consideration of new material whether or not it existed at the time that the original decision was made: see s 27 of the SAT Act. Section 29 of the SAT Act relevantly provides: (Page 4)
1) The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decisionmaker in making the reviewable decision. 2) Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal. 3) The Tribunal may - … 5) The decisionmaker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decisionmaker's decision - (a) is to be regarded as, and given effect as, a decision of the decisionmaker; and (b) unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect. … 7 Given that s 29 of the SAT Act places the Tribunal effectively in the decisionmaker's shoes it is necessary to consider the parameters of the enabling Act together with the functions and discretions exercisable by the LPCC in investigating and making determinations in relation to complaints brought before it. 8 Section 409 and s 410 of the LP Act provide for complaints to be made to the LPCC in relation to Australian legal practitioners. (Page 5)
Complaints, importantly in relation to this matter, cannot be dealt with more than six years after the alleged conduct unless certain criteria are met: see s 411 of the LP Act. 9 Section 415 of the LP Act enables the LPCC to dismiss complaints summarily in certain circumstances including where the complaint is vexatious, misconceived, frivolous or lacking in substance. 10 By s 421 of the LP Act, the LPCC is given power to investigate the conduct of an Australian legal practitioner if it has reasonable cause to suspect that the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. Section 425 of the LP Act provides that, after investigation of the complaint, the LPCC may dismiss the complaint if it is satisfied that: 11 By s 426 of the LP Act, the LPCC is given certain summary powers and can impose a summary penalty as provided in that provision. Alternatively, pursuant to s 428 of the LP Act, the LPCC has the power to refer matters to the Tribunal, regardless of whether it has conducted an investigation or not. 12 It is not always necessary in reviewing a decision of the LPCC for the Tribunal to conduct a full hearing into the allegations being made by the person aggrieved by the LPCC's decision. There will be cases, as is the situation in relation to the complaint the subject of this review, where it is sufficient for the Tribunal to review the papers considered by the LPCC or otherwise any other documents upon which the parties consent it would be appropriate for the Tribunal to consider. 13 The Tribunal must, in any review proceeding, consider what is the correct and preferable decision. If the Tribunal finds that the correct and preferable decision was that made by the LPCC, then it can affirm that decision. If the Tribunal determines otherwise, then the Tribunal has the discretion to send the matter back to the LPCC pursuant to s 29(3)(c)(ii) of the SAT Act. 14 In this case, the matter proceeded on the papers only with the complainant and the practitioner both providing written submissions on (Page 6)
which they relied. The LPCC itself did not participate in the proceedings or file any submissions.
TheFactual Background 15 In or about early June 1996 Mr Bailey and another person were served with summonses to appear on 7 June 1996 before the National Crime Authority (NCA) pursuant to a reference to the NCA to investigate into the activities of motorcycle clubs in Perth, Western Australia. After being issued with the summons Mr Bailey contacted Pryles & Defteros' Perth office to make an appointment with a solicitor. On 5 June 1996, Mr Bailey and that other person met with a solicitor in the employment of that firm in Perth where it was arranged that Mr Bailey would meet with the practitioner at Pryles & Defteros' Melbourne office. Mr Bailey travelled to Melbourne on 6 June 1996 and met with the practitioner and two Queen's Counsel. 16 It appears that during these early conferences the practitioner advised Mr Bailey to sell shares that he then held and to place the proceeds, and any other money that he had, on deposit at the practitioner's office. Mr Bailey alleges that he was told by the practitioner that the money would be held on trust to avoid the risk that the NCA might obtain an injunction freezing Mr Bailey's assets and thus preventing him from accessing and using those funds. Mr Bailey submits that he acted on this advice and subsequently paid to the practitioner's trust account a sum of $251,545.88. 17 On or about 16 August 1996 Mr Bailey requested the practitioner to return the money he had paid to him on trust. In or about September 1996 the practitioner returned to Mr Bailey $132,657 and claimed that the balance of the funds, being $118,888, were costs incurred. Mr Bailey's position was that at no time had he authorised the practitioner to deduct money from that held on trust in order to pay his firm's fees. The practitioner continued to act for Mr Bailey until 10 December 1996 at which time Mr Bailey instructed the practitioner's firm to cease acting. 18 In May 1997 Mr Bailey commenced proceedings against the firm of Pryles & Defteros seeking the return of his funds. On 25 June 1997 Pryles & Defteros filed a Notice of Motion seeking an order that the Supreme Court of Western Australia did not have jurisdiction to hear the matter. That Motion was heard before Justice Heenan on 9 December 1997. His Honour held that the Supreme Court did have jurisdiction to deal with the matter. (Page 7)
19 The matter was listed for trial between 17 and 23 July 2001. On 5 July 2001 Pryles & Defteros filed a Minute of Proposed Substituted Defence supported by an affidavit sworn by the practitioner. The practitioner's affidavit was referred to by Justice RobertsSmith in his reasons for decision (Bailey vs Pryles & Defteros (A Firm) [2003] WASC 41 (Bailey) at [27] [39]). In relation to the purpose for the sale of Mr Bailey's shares and the transfer of that money, the practitioner deposed that the original admission that this was done on his advice so as to protect those funds was an error and the practitioner deposed that in fact Mr Bailey was directed to transfer the funds as security for his firm's costs. 20 His Honour RobertsSmith J granted the practitioner leave to amend the defence and vacated the trial dates which had been set and ordered that Pryles & Defteros file, within seven days, bills of costs that they be taxed. On 10 October 2001 a large bill of costs for taxation was filed covering the period from June 1996 to December 1996. 21 The practitioner's firm claimed profit costs of $80,366.80 plus disbursements of $14,713.90, being a total of $95,080.70. The bill of costs was supported by an affidavit of Ms Vesna Amidzic sworn 18 March 2002 and two affidavits sworn by the practitioner on, respectively, 18 March and 11 April 2002. 22 The taxation report was delivered by the learned Registrar on 27 June 2002. His Honour referred to the Registrar's report at [50] of his decision and to the criticism that with regard to the work claimed to have been carried out there was no primary evidence and almost no contemporaneous records not even timesheets. His Honour referred to the findings of the Registrar that there were no critical file notes and no follow up letters. There was no evidence of any consequential work that would have indicated that the work claimed for had been carried out to discharge the retainer. 23 The practitioner explained in his supporting affidavit that the absence of notes and supporting or follow up documents was as a result of the most confidential nature of the work. The practitioner deposed that the work was so sensitive that it was not his practice to keep records or file notes. The Registrar found this an extraordinary position. In addition the Registrar found a number of deficiencies in the bill of costs in relation to duplication of claims, charges made for telephone attendances in which there was no apparent justification for the charge and several large claims for research which were not substantiated. His Honour noted that the (Page 8)
learned Registrar was not satisfied that much of the work charged for had in fact been performed. The Registrar allowed a taxation of only $14,874.90 and a further amount of $1,600 and uncontested disbursements of $10,400.50. Thus the effective profit costs for the practitioner's firm were reduced from an amount in excess of $90,000 to approximately $18,000. 24 Judgment was given in favour of Mr Bailey by RobertsSmith J on 14 February 2003. His Honour noted that the funds wrongfully retained by the practitioner's firm since 19 August 1996 accounted to $90,223.48. His Honour also made comments in relation to the significant delay in the conduct of the matter due to the practitioner's firm repeatedly failing to comply with time limits in the conduct of the proceedings and to take opportunities to provide in a timely manner appropriate supporting material to justify the substantial costs being claimed. 25 Following judgment Pryles & Defteros failed to pay the amount of the judgment with interest and Mr Bailey was required to lodge a bankruptcy notice against the partners of that firm to force payment of the interim judgment sum. 26 Mr Bailey lodged a complaint to the precursor of the LPCC on 8 January 2003 alleging unprofessional conduct by way of gross overcharging. The complaint was deferred pending the outcome of the Supreme Court proceedings (in this regard the decision of RobertsSmith J was delivered on 14 February 2003). The complainant was requested to contact the LPCC at the conclusion of the civil proceedings. 27 During 2003 to 2010 Mr Bailey was declared bankrupt on the application of the Australian Taxation Office. Mr Bailey has submitted that this hindered his ability to advance remaining claims against Pryles & Defteros. Mr Bailey asserts that the civil action remains on foot with a claim for damages being pursued. 28 In or about August 2010 the LPCC undertook an investigation to inquire into the status of the complaint and made enquiries to locate Mr Bailey and contact him in respect of the complaint. Following that contact the LPCC considered further its position in relation to deciding whether to investigate and prosecute the complaint. On 26 August 2010, the LPCC informed Mr Bailey that it had resolved to dismiss his complaint being satisfied that it was in the public interest to do so. The LPCC noted in its letter to Mr Bailey that the complaint had been (Page 9)
deferred in 2003 and neither Mr Bailey nor his solicitors had contacted the LPCC in the intervening seven years. In contacting the practitioner the LPCC noted that his position was that the complaint should be dismissed pursuant to s 415 of the LP Act for the reasons that: • the firm of Pryles & Defteros was no longer in existence and Mr Defteros no longer had any relevant records; • the legal proceedings had concluded; • the complainant had not sought to reinstigate the complaint; • the substantive issues underlying the complaint had been resolved; and • the practitioner was not in a position to respond to the LPCC given the time that had lapsed. 29 On balance, the LPCC determined that it would be oppressive to require the practitioner to respond to a complaint in circumstances where the original records relating to the matter no longer existed and a significant period of time had lapsed. In the taxation proceedings it was found that there were very few records to substantiate the costs claims made. This meant that the practitioner would need to rely on memory recall of what work was done. The LPCC further noted that Mr Bailey had recovered the funds in dispute plus interest. In the circumstances the LPCC was of the view that it was not in the public interest to pursue the matter further. 30 Mr Bailey applied to the Tribunal to review the decision of the LPCC pursuant to s 435(1)(a) of the LP Act on 11 October 2010, some 18days outside of the required time period within which an applicant must bring an application for review: see r 9 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules).
Issues 31 It is common ground that the application for review was filed on 11 October 2010, that is, 18 days out of time. Thus there is a threshold consideration as to whether the Tribunal should exercise its discretion as to whether to extend the time for the commencement of the review proceeding. (Page 10)
32 Assuming that the Tribunal exercises its discretion and extends the period of time in which the applicant is afforded to commence the review proceeding, the next issue for consideration is what is the correct and preferable decision which should have been made by the LPCC in relation to the complaint raised against the practitioner. If the Tribunal forms the view that the decision of the LPCC was the correct and preferable decision then that will be the end of the matter. Alternatively, if the Tribunal decides that that was not the correct and preferable decision in the circumstances, then it has various options available to it, including at least those under s 424 and s 425 of the LP Act.
Consideration of the Tribunal
Extension of time 33 Rule 9 of the SAT Rules sets a time limit of 28 days within which an application for review must be made to the Tribunal under its review jurisdiction. 34 Rule 10 of the SAT Rules under the heading 'Extension of time limit' allows the Tribunal to extend the time for the commencement of the proceeding. 35 The Tribunal has previously accepted that the considerations set out by Kennedy J in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198 are relevant to the exercise of the Tribunal's discretion whether to grant an extension of time pursuant to r 10 of the SAT Rules. Those considerations are: 1) the length of the delay; 2) the reasons for the delay; 3) whether there is an arguable case; and 4) the extent of any prejudice to the respondent. 36 In this case, the length of the delay is relatively short being 18 days. The applicant has stated that the delay was as a result of work commitments of Mr Bailey's counsel between 26 August 2010 and 11 October 2010 during which time period counsel was travelling interstate and overseas on business commitments. 37 The practitioner submits that the 18 day delay must be considered in conjunction with the alleged failure of Mr Bailey to take any steps to (Page 11)
continue the complaint in a timely manner since the complaint was made to the LPCC in 2003. This is said to result in a prejudice to the practitioner. The practitioner also submits that there is an absence of any evidence to substantiate the overcharging as alleged and therefore there is no arguable case. 38 Whether there has been a prejudice to the practitioner in Mr Bailey not pursuing his complaint following it first being raised with the LPCC in 2003, is a separate question to be addressed by the Tribunal later in these reasons. However, for the purposes of considering whether it is appropriate to exercise the discretion under r 10 of the SAT Rules, the only delay period which the Tribunal is to consider is the 18 day delay. In the Tribunal's view the practitioner has not established any prejudice as a the result of that period of delay. Given that the delay has been attributed to the absence of counsel, it appears in the view of the Tribunal to be unfair and prejudicial to Mr Bailey for him to suffer as a result of counsel's unavailability. 39 As to whether there is an arguable case, the Tribunal does not accept that there is a complete absence of any evidence to substantiate Mr Bailey's allegation of overcharging on the part of the practitioner. The decision of RobertsSmith J in Bailey in which his Honour quotes directly from the Registrar's taxation of the bill of costs of the practitioner's firm supports Mr Bailey's contention of overcharging. 40 On the basis of the above considerations the Tribunal therefore deems it appropriate to exercise its discretion pursuant to r 10 of the SAT Rules to allow an extension of time for the applicant to file its application for review.
Whether the correct and preferable decision is to dismiss the applicant's complaint due to delay 41 Section 425 of the LP Act provides that, after investigation of a complaint, the LPCC may dismiss the complaint if it is satisfied that: 42 The LPCC informed the applicant on 26 August 2010 that pursuant to s 425(b) of the LP Act, it had made a decision that Mr Bailey's complaint should be dismissed because it was in the public interest to do (Page 12)
so. This decision made by the LPCC was based upon the following considerations: 1) The complaint concerned matters which had occurred in 1996, the complaint was made by the applicant to the LPCC in 2003, and the applicant had not sought to reinstigate the complaint until he was contacted in 2010 by the LPCC; 2) The firm of Pryles & Defteros was no longer in existence and the practitioner no longer had any relevant records; 3) It appeared that legal proceedings had concluded and, significantly, substantive issues underlying the complaint had been resolved; 4) The practitioner would be prejudiced in the circumstances of the delay in being able to respond to the allegations given the time which had lapsed and given the need for the practitioner to rely on his and other solicitors' memories of what work was done; and 5) The applicant had recovered the funds in dispute plus interest. 43 In light of the above considerations the LPCC therefore formed the view that it was not in the public interest to pursue the matter further. 44 Mr Bailey explains the period of delay on the following basis: 1) The applicant was declared bankrupt on the application of the Australian Taxation Office for a period between 2003 and 2010. During that period he was unable to advance a damages claim which remained part of his civil Supreme Court action against Pryles & Defteros. 2) The experience with bankruptcy and with Pryles & Defteros caused the applicant to lose confidence in the legal system and in the ability of the legal profession to discipline one of its own members. 3) When contacted by the LPCC, the applicant confirmed that he wished to reagitate the complaint and have it dealt with by the LPCC. (Page 13)
4) The facts recorded in the decision of RobertsSmith J make it plain that there was manifest unprofessional conduct and the taxation of costs constituted a binding decision that the amount of costs charged were grossly unreasonable. 5) The decision of RobertsSmith J and the taxation make it clear that the practitioner never maintained records and that this was the situation at the time that the complaint was made and thus no prejudice has been suffered by the practitioner as a result of the intervening period. In any event this is a hardship brought about by the practitioner's own conduct. 6) Mr Bailey was held out of his funds improperly by the practitioner for a period of in excess of seven years, being a deliberate and calculated conduct by the practitioner and thus due to the seriousness of the conduct the LPCC should have determined the complaint whether or not it was in the public interest to do so. 45 The LPCC's position is as set out in its letter of 26 August 2010 to which the Tribunal has already referred. The practitioner in his submissions raises the following additional points: 1) The practitioner had assumed as a result of consequences arising from the applicant's bankruptcy that the Supreme Court proceedings as far as a damages claim was concerned had concluded. 2) The practitioner disputes that there was any determination by RobertsSmith J or the learned Registrar that the bill of costs was grossly unreasonable. The practitioner's position is that the costs simply, in the absence of supporting documentation, could not be established and thus the quantum of the bill could not be proved. 3) Given that the events the subject of the complaint occurred in 1996 and in the intervening 15 year period the applicant became bankrupt and the partnership of Pryles & Defteros had been dissolved, it was a reasonably held belief of the practitioner that the complaint brought by the applicant would not be pursued and thus he should be able to proceed on the basis of that belief. (Page 14)
4) In relation to the allegation of fraudulent conduct by the practitioner, the practitioner states that there are no particulars of such a claim and that it is void of substance and merit. 5) Mr Bailey could have continued the complaint with the LPCC and this was not prevented by his bankruptcy. 6) The practitioner will suffer significant prejudice if the complaint is investigated at this time given that in the intervening 15 year period the parties' recollection may be impaired. 46 It is certainly in the public interest that matters are dealt with speedily. There are clear prejudices which may arise if that is not done and this is one of the reasons why legislation often provides for time limitation periods within which actions are to be brought. A useful guide in relation to the effect of a long period of delay between the date of an allegation or complaint and the time at which it is considered by a disciplinary body, was the subject of the following observations by McHugh JA in Herron v McGregor (1986) 6 NSWLR 246 (Herron) at 254 255: The public interest requires that complaints be lodged and dealt with as expeditiously as possible: see Birkett v James (at 329). A person with reasonable ground for complaint, therefore, should pursue it with reasonable diligence. Memories fade. Relevant evidence becomes lost. Even when written records are kept, long delay will frequently create prejudice which can never be proved affirmatively. As the United States Supreme Court said in Barker v Wingo (at 532) 'what has been forgotten can rarely be shown'. In some cases delay makes it simply impossible for justice to be done: Birkett v James (at 317-318, 327). In R v Lawrence [1982] AC 510 at 517, Lord Hailsham LC pointed out that: 'Where there is delay the whole quality of justice deteriorates.' The difficulties in ascertaining the truth about a matter after time has done its work are vividly portrayed by Street CJ in the Report of the Royal Commission of Inquiry into Certain Committal Proceedings Against K E Humphreys (July 1983). His Honour said (at 9-10): 'In the intervening five or six years, rumours waxed and waned. In some cases suspicion underwent subtle change to belief, which itself progressed to reconstruction, which in turn escalated to recollection. No presently stated recollection could be safely assumed not to have progressed upwards and not to be the product of one of these earlier stages. The sheer frailty of human memory of necessity required a most anxious and critical appraisal of the (Page 15)
evidence of the witnesses, no matter how credit-worthy they might be. It became apparent that in the years since August 1977 the recollections even of those with undoubted first-hand knowledge have in some instances faded, in some instances fermented, and in some instances expanded. Moreover, in many cases the realisation of the significance - indeed, the enormity - of what had occurred has tended to transmute into a more or less cynical acceptance of what had, or was believed or rumoured to have, taken place.' Because delay creates prejudice and injustice, the policy of the law for over 300 years has been to fix definite time limits for prosecuting civil claims (usually a maximum of six years) and for 150 years to fix definite time limits for prosecuting summary criminal offences. Equity, though not bound by the common law limitations, applied them by analogy. The reasons which have impelled the legislature to fix time limits in civil and many criminal cases are equally applicable to disciplinary proceedings. When a number of years has elapsed since the conduct occurred, the lodging of a complaint prima facie needs justification although, of course, there can be no fixed rule. 47 Herron was cited with approval in Hewett v Medical Board of Western Australia [2004] WASCA 170 at [106]. 48 Certainly in this case there is a significant period of delay from the events which formed the basis of the complaint which took place in 1996 and the complaint being investigated now in 2011. The intervening period is some 15 years. Mr Bailey has had knowledge of the circumstances giving rise to the complaint since 1996. Although it was appropriate to defer the complaint which was made in January 2003, shortly thereafter the practitioner's firm's bill of costs had been taxed and the applicant received a judgment in his favour for the return of trust monies plus interest. Although there remained a damages claim yet to be determined, as far as the allegation made in respect of the overcharging, that matter was substantively decided by early 2003 by the result of the taxation of the bill of costs and the decision of RobertsSmith J delivered on 14 February 2003. 49 Although Mr Bailey became bankrupt in 2003 for a period of seven years, this did not prevent him from contacting the LPCC and informing it of the decision of RobertsSmith J and the result of the taxation of the bill of costs. Indeed, given the long period of bankruptcy, Mr Bailey would not have known if or when he would have been in a position to pursue the damages claim. Thus in those circumstances, it was appropriate to pursue the complaint rather than leave it in abeyance for (Page 16)
such a significant period of time in the hope that the damages claim could be enlivened and pursued. 50 Although it appears that the practitioner did not, at any relevant time, have any records in his possession and thus the intervening period has not altered that position, this highlights the prejudice of the delay even more so given the total reliance to defend the complaint on the practitioner's and others' memories. Therefore with each intervening year the prejudice on the second respondent for that reason grew. The possible impairment of witnesses' recollections in an intervening 15 year period where the law firm had dissolved and there were no relevant contemporaneous notes is clear. In those circumstances the attempt to reagitate the complaint after a period of seven years of inactivity is oppressive and bordering on an abuse of process. 51 Indeed, it appears that the applicant made a positive decision not to pursue the complaint rather than being prevented from doing so due to bankruptcy. In this regard the Tribunal gives some weight to the submission made on behalf of the applicant that he had 'lost confidence in the legal system and in the ability of the legal profession to discipline one of its own members'. It is not open to the applicant to make a conscious decision not to pursue a complaint for a period of seven years and then seek to reagitate it. With each passing year recollection becomes less reliable, if it does not fade altogether. The gathering of evidence rarely, if ever, gets easier with the passing years. That is why justice delayed is usually justice denied. As stated by his Honour McHugh JA in Herron at 267: There is a public interest in a fair hearing and in ensuring that the proceedings are not an abuse of process. If the prejudice or unfairness is so oppressive as to amount to an abuse of process, the public interest requires that the proceedings be stayed. There is no public interest in hearing a complaint and making a finding of professional misconduct against a doctor where the delay of the complainant has caused the defendant substantial prejudice and unfairness amounting to an abuse of process. Members of the public could have no confidence whatever in a finding of professional misconduct made in those circumstances. …. No matter how serious the allegations, the doctor is entitled to a fair opportunity to defend himself against the charge. When the complainant institutes proceedings against a person after unjustifiably prejudicing his opportunity to a fair hearing, there is a prima facie case of abuse of process. 52 Those comments of his Honour apply squarely to this application. When a complainant chooses to delay agitating a complaint they derogate (Page 17)
from the opportunity of the respondent to defend themselves against the allegations and prevent an opportunity for a speedy and fair hearing. That prima facie raises a case of an abuse of process. The complaint did not involve, as the applicant suggests, a mere ticking of a box process given that the matter had effectively been decided as a result of the process of taxation and the decision of RobertsSmith J. The LPCC would be required to investigate the complaint and refer the matter to the Tribunal so that a proper and full hearing could take place. The hearing would rely on the recollection primarily of the second respondent and solicitors employed and/or counsel retained by Pryles & Defteros. The delay in pursuing the complaint severely prejudices the second respondent in providing that evidence and thus his ability to defend the complaint. Fairness to the second respondent required the complainant to act expeditiously to ensure the availability and accuracy of witness evidence and the capacity of witnesses to recall evidence of matters occurring so long ago. 53 The Tribunal therefore finds that the correct and preferable decision was that made by the LPCC in the first instance in that it is not in the public interest to pursue the complaint given the substantial delay and that the complaint should be dismissed.
Orders 54 The Tribunal therefore orders that: (Page 18)
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