BEROS and LEGAL PROFESSION COMPLAINTS COMMITTEE

[2020] WASAT 83

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION:   BEROS and LEGAL PROFESSION COMPLAINTS COMMITTEE [2020] WASAT 83

MEMBER:   JUDGE D PARRY, DEPUTY PRESIDENT

MS L EDDY, SENIOR MEMBER

MS R MOORE, MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   30 JULY 2020

FILE NO/S:   VR 171 of 2019

BETWEEN:   DAVID BEROS

Applicant

AND

LEGAL PROFESSION COMPLAINTS COMMITTEE

First Respondent

ROBERT JOHN BUTCHER

Second Respondent

HOLLY THOMPSON

Third Respondent

IAN BLATCHFORD

Fourth Respondent

Catchwords:

Legal practitioners - Review of decisions of Legal Profession Complaints Committee to dismiss complaints about legal practitioners - Whether there is any reasonable likelihood that the Tribunal might find practitioner guilty of unsatisfactory professional conduct or professional misconduct if matter referred to it - Leave to seek review of decisions of Legal Profession Complaints Committee to dismiss complaints specifically found to be 'unreasonable' - Whether decisions to dismiss complaints wrong or attended with sufficient doubt to justify grant of leave

Legislation:

Family Provision Act 1972 (WA)
Legal Profession Act 2008 (WA), s 402, s 403, s 410(1)(e), s 421, s 424(1), s 425, s 425(a), s 426, s 426(1)(a)(ii), s 426(1)(a)(iii), s 426(1)(a)(iv), s 426(1)(b), s 426(2)(c), s 428, s 428(1), s 435, s 435(1)(a), s 435(1)(b), s 435(2), s 435(2)(a), s 438(1), s 438(2)(b), s 441(c)
State Administrative Tribunal Act 2004 (WA), s 17(1), s 27, s 29(3), s 29(3)(a), s 60(2)

Result:

Application for review dismissed
Leave to seek review of decisions of first respondent to dismiss complaints B1, B2, B4 and B5 about second respondent, complaints T3 and T4 about third respondent and complaint about fourth respondent refused
Decisions made by first respondent to dismiss complaint B3 about second respondent and complaints T1 and T2 about third respondent affirmed 

Category:    B

Representation:

Counsel:

Applicant	:	In Person
First Respondent	:	Mr S Merrick
Second Respondent	:	In Person
Third Respondent	:	In Person
Fourth Respondent	:	In Person

Solicitors:

Applicant	:	N/A
First Respondent	:	Law Complaints Officer
Second Respondent	:	Butcher Paull & Calder
Third Respondent	:	Butcher Paull & Calder
Fourth Respondent	:	Blatchfords

Case(s) referred to in decision(s):

Greenwood and Legal Profession Complaints Committee [2010] WASAT 31; (2010) 70 SR (WA) 144

Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331; (2018) 12 ARLR 135

SJX and Legal Profession Complaints Committee [2012] WASAT 154

Winzer and Roberts-Smith [2011] WASAT 140

TABLE OF CONTENTS

Introduction

Mr Beros' complaints about Mr Butcher, Ms Thompson and Mr Blatchford

The Committee's decisions in relation to Mr Beros' complaints about Mr Butcher, Ms Thompson and Mr Blatchford

The Committee's reasons for its decisions in relation to Mr Beros' complaints about Mr Butcher, Ms Thompson and Mr Blatchford

Legal framework and principles

Issues for determination

Aspects of 'decision sought' by Mr Beros which are not within the Tribunal's jurisdiction and power in these proceedings

Complaint B1 ­ Engineering the failure of the mediation on 12 April 2016 by failing to take steps to include Mr Beros in the mediation by telephone and conceding ground by permitting other parties to propose terms of settlement

Complaint B2 ­ Failing to confer with Mr Beros during a meeting between the parties' legal representatives on 25 July 2017 and making concessions in regard to the residuary rental income produced by the Tuart Street properties without taking instructions

Complaint B3 ­ Causing Ms Thompson to write to Mr Beros to inform him of the matters discussed during the meeting on 25 July 2017 in circumstances where that email did not refer to amendment of the draft Deed to delete clause 12 and to amend clause 16 (subsequently clause 15) to state that all residuary rental income would form part of the residue of the estate

Complaint B4 ­ Preparing or causing to be prepared a draft letter to the Supreme Court on 4 May 2016 seeking that Mr Beros be excused from attending the next scheduled mediation in the Supreme Court proceedings

Complaint B5 ­ Unreasonably delaying the resolution of the matter and increasing the legal expenses incurred by Mr Beros as a result of the conduct in complaints B1, B2 and B4

Complaint T1 ­ Failing to notify Mr Beros that Ms Thompson was unable to attend the meeting on 25 July 2017 and causing or permitting Mr Butcher to attend in her absence without Mr Beros' prior knowledge and approval

Complaint T2 ­ Sending an email to Mr Beros on 26 July 2017 outlining the matters discussed at the meeting on 25 July 2017 without referring to discussions at the meeting about amending the draft Deed to delete clause 12 and to amend clause 16 (subsequently clause 15) to state that all residuary rental income would form part of the residue of the estate

Complaint T3 ­ Falsely stating in an email to Mr Beros at 5.36 pm on 2 October 2017 that the attached copy of the Deed executed by Marica Beros 'was provided to us a short time ago'

Complaint T4 ­ Falsely stating in an email to Mr Beros dated 6 October 2017 that the Deed executed by Katie Beros had not been 'circulated' on the day it was received 'due to an administrative error'

Complaint about Mr Blatchford ­ '[U]nlawfully remov[ing]' pages 6 and 7 of Katie Beros' affidavit before providing it to Mr Butcher by email on 31 March 2016

Mr Beros' contention that the Committee was biased

Conclusion

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. Mr David Beros (Mr Beros, complainant or applicant) seeks review by the Tribunal, under s 435(1)(a) of the Legal Profession Act 2008 (WA) (LP Act), of the decisions of the Legal Profession Complaints Committee (Committee or first respondent) to dismiss 10 complaints made by him about three legal practitioners. The Committee dismissed Mr Beros' complaints under s 425(a) of the LP Act on the basis that it was satisfied that there is no reasonable likelihood that the practitioners would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct if the complaints were referred by the Committee to the Tribunal under s 428(1) of the LP Act. In its reasons for its decisions, the Committee specifically found seven of Mr Beros' 10 complaints about the practitioners to be 'unreasonable'. In consequence, under s 435(2) of the LP Act, Mr Beros cannot apply to the Tribunal for review of the Committee's decisions in relation to those seven complaints without the leave of the Tribunal.

2. Five of Mr Beros' complaints are about Mr Robert Butcher         (Mr Butcher or second respondent) (complaints B1, B2, B3, B4 and B5).  In late February 2016, Mr Beros contacted Mr Butcher, who is the responsible partner in the litigation department of Butcher Paull & Calder (firm), and on 1 March 2016 Mr Beros signed a costs agreement retaining the firm to act on his behalf in relation to Supreme Court of Western Australia proceedings No. CIV 3033 of 2015 (Supreme Court proceedings).  The Supreme Court proceedings involved an action under the Family Provision Act 1972 (WA) (FP Act) commenced on 22 December 2015 by Mr Ante Beros (Ante Beros), Mr Beros' brother, by his (Ante Beros') Next Friend The Public Trustee of Western Australia (Public Trustee), concerning the estate of the late Mr Srecko Mate Beros (deceased), Mr Beros' father. In addition to Ante Beros (as plaintiff) and Mr Beros (as third defendant), the other parties in the Supreme Court proceedings were Ms Katie Beros (Katie Beros), Mr Beros' sister, in her capacity as executor of the deceased's will (as first defendant) and in her capacity as a beneficiary of the estate of the deceased (as second defendant), and two of Mr Beros' other siblings, Ms Marica Beros (Marica Beros) (as fourth defendant) and Ms Doleres Beros (Doleres Beros) (as fifth defendant). Mr Butcher initially had the primary conduct of the matter on behalf of Mr Beros and, from late August 2016, was assisted by Mr Andrzej Meysner (Mr Meysner), who was a senior associate at the firm. In February 2017, Ms Holly Thompson (Ms Thompson or third respondent) commenced employment with the firm and from then on had day to day conduct of the matter on behalf of Mr Beros under the general supervision of Mr Butcher. Four of Mr Beros' complaints are about Ms Thompson (complaints T1, T2, T3 and T4). Katie Beros was represented in the Supreme Court proceedings, in her capacity as a beneficiary of the estate of the deceased, by Mr Ian Blatchford (Mr Blatchford or fourth respondent). Mr Beros has made one complaint about Mr Blatchford.

3. On 7 April 2020, the Tribunal made an order that, subject to any further order, the matter is to be determined entirely on the documents, pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).[1]  The documents on which the Tribunal is determining this matter are:

   [1] Order 3 made on 7 April 2020.

   •Mr Beros' application dated 10 December 2019 and filed on 11 December 2019 by which he commenced these proceedings (application);

   •the Committee's section 24 bundle of documents dated and filed on 18 February 2020 (section 24 bundle of documents);

   •index entitled 'Doleres Beros Index Numbers' (including extracts from documents and commentary) and bundle of documents Mr Beros wishes to rely upon, which he emailed to the President's associate and were compiled as a bundle by the President's orderly and filed on 20 April 2020 (applicant's bundle of documents);

   •letter from Mr David McCashney, who represented Marica Beros in the Supreme Court proceedings, to the other parties' legal representatives dated 14 April 2016;[2]

   •Mr Beros' submissions dated and filed on 2 April 2020 (applicant's submissions);

   •the Committee's submissions dated and filed on 13 May 2020 (first respondent's submissions);

   •Mr Butcher's submissions and attached documents dated and filed on 12 May 2020 (second respondent's submissions);

   •Ms Thompson's submissions and attached documents dated and filed on 12 May 2020 (third respondent's submissions); and

   •Mr Blatchford's submissions and attached documents dated and filed on 7 May 2020 (fourth respondent's submissions).

Mr Beros' complaints about Mr Butcher, Ms Thompson and Mr Blatchford

[2] This letter was emailed by the applicant to the President's associate on 1 March 2020.  It is not included in the applicant's bundle of documents, but is referred to in 'Doleres Beros Index Numbers' No. 44 at page 5 of the applicant's bundle of documents.

1. On the basis of his correspondence and other documents which Mr Beros provided to it, the Committee distilled and summarised Mr Beros' complaints about Mr Butcher, Ms Thompson and Mr Blatchford as follows:[3]

   [3] Section 24 bundle of documents pages 1-4 (original emphasis).  In these reasons, we refer to Mr Beros' complaints about Mr Butcher and Ms Thompson, respectively, as complaints B1, B2, B3, B4 and B5 and complaints T1, T2, T3 and T4, as defined by the Committee.

   Mr Butcher engaged in unsatisfactory professional conduct or professional misconduct by:

   1."[E]ngineer[ing] the predictable failure of the first mediation" on 12 April 2016 by failing to take steps to include you in the mediation by telephone link and conceding ground by permitting other parties in Supreme Court of Western Australia (Court) action No. CIV 3033 of 2015 (Action) to propose terms of settlement to the effect that:

   (a)you would receive the property situated at 71 Tuart Street, Yokine (71 Tuart Street) valued at $535,000 and 5% of the residue of the estate (Estate) of your late father, Mr Streko Mate Beros (deceased), valued at $110,000; and

   (b)the property situated at 69 Tuart Street, Yokine (69 Tuart Street) valued at $555,000 would be one of 4 properties sold as part of the residue of the Estate to enable cash payments to be made to you and your siblings in agreed percentages, in circumstances where both 69 Tuart Street and 71 Tuart Street (Tuart Street Properties) had been bequeathed to you under the deceased's will made on 21 May 2014 (Will) and you wished to retain both properties,

   ([c]omplaint B1).

   2.Failing to confer with you during a further meeting between the parties' legal representatives on 25 July 2017 (Meeting) and making concessions in regard to the residuary rental income produced by the Tuart Street Properties, without taking your instructions, to the effect that:

   (a)Clause 12 of the draft Deed of Family Arrangement (draft Deed), which set out your entitlement to the residuary rental income from the Tuart Street Properties, was removed; and

   (b)Clause 16 (subsequently Clause 15) of the draft Deed was amended to state that all residuary rental income earned from the assets of the Estate pending distribution would form part of the residue of the Estate and belong to the residuary beneficiary,

   ([c]omplaint B2).

   3.Causing an employee of the firm, Butcher Paull & Calder (Firm), Ms Thompson, to write to you by email dated 26 July 2017 to inform you of the matters discussed during the Meeting (on 25 July 2017) in circumstances where that email did not refer to the matters set out in paragraphs 2(a) and (b) above at all,

   ([c]omplaint B3).

   4.Preparing or causing to be prepared a draft letter to the Associate to Registrar C Boyle of the Court on 4 May 20l6 seeking that you be excused from attending the next scheduled mediation in the Action on medical grounds and requesting your instructions to send the letter by email to you from an employee of the Firm, Ms Karen Dick, on 4 May 2016 at 4:57pm in circumstances where:

   (a)you had previously produced a letter from your treating psychiatrist dated 22 February 2016 to the Acting Associate to Acting Principal Registrar Dixon stating that you were unable to travel to Western Australia for medical reasons; and

   (b)you had provided instructions to Mr Butcher by email dated 4 May 2016 at 5:44am that Mr Butcher was not to write to the Registrar about the matter,

   ([c]omplaint B4).

   5.Unreasonably delaying the resolution of the matter and increasing the legal expenses incurred by you as a result of his (Mr Butcher's) conduct in Complaints B1, B2 and B4 above,

   ([c]omplaint B5).

   Ms Thompson engaged in unsatisfactory professional conduct or professional misconduct by:

   1.Failing to notify you that she (Ms Thompson) was ''unable to attend'' a meeting between the parties' legal representatives on 25 July 2017 (the Meeting), which was for the purposes of negotiating an agreement between the parties to settle the matter, and causing or permitting her colleague, Mr Butcher, to attend in her absence without your prior knowledge and/or approval,

   ([c]omplaint T1).

   2.Sending an email to you dated 26 July 2017 outlining the matters discussed during the Meeting in circumstances where the email did not refer to discussions had during the Meeting about amending the draft Deed, in particular that:

   (a)Clause 12 of the draft Deed, which referred to your entitlement to the residuary rental income from the Tuart Street Properties would be removed; and

   (b)Clause 16 (subsequently Clause 15) or the draft Deed would be amended to state that all residuary rental income earned from the assets of the Estate,

   pending distribution, would form part of the residue of the Estate and belong to the residuary beneficiary,

   ([c]omplaint T2).

   3.Falsely stating in an email to you dated 2 October 2017 (at 5:36pm) that the attached copy of the Deed of Family Arrangement (Deed) executed by Ms Marica Beros (Marica) "was provided to us a short time ago" in circumstances where a letter from Margaret River Law dated 29 September 2017, which enclosed a copy of the Deed executed by Marica, sent this document to her (Ms Thompson's) colleague, Mr Andrzej Meysner (Mr Meysner) (a senior associate employed by the Firm), by email on 29 September 2017,

   ([c]omplaint T3).

   4.Falsely stating in an email to you dated 6 October 2017 that the Deed executed by Ms Katie Beros (Katie) had not been ''circulated'' on the day it was received ''due to an administrative error" in circumstances where the email was initially received by her (Ms Thompson's) colleague, Mr Butcher, on 2 October 2017,

   ([c]omplaint T4).

   Mr Blatchford engaged in unsatisfactory professional conduct or professional misconduct by, whilst acting for Katie, in her capacity as a beneficiary of the Estate, in the dispute in respect of the distribution of the Estate, by ''unlawfully remov[ing]" pages 6 and 7 of Katie's affidavit sworn 25 February 2016 (Katie's Affidavit) in the PDF copy of the document provided by Ms Elizabeth Poland of Murfett Legal by email dated 29 February 2016 before providing a copy of Katie's Affidavit (with pages 6 and 7 removed) to Mr Butcher by email dated 31 March 2016.

2. In letters by email dated 6 August 2019 (in relation to complaints B1, B2, B3, B4 and B5)[4] and 28 August 2019 (in relation to complaints T1, T2, T3 and T4 and the complaint about Mr Blatchford),[5]               Ms J Dixon, Legal Officer of the Committee, advised Mr Beros of the summation of his complaints about the practitioners in the terms set out immediately above.  By responsive emails to Ms Dixon on 7 and          15 August 2019 (in relation to complaints B1, B2, B3, B4 and B5)[6] and 28 August 2019 (in relation to complaints T1, T2, T3 and T4 and the complaint about Mr Blatchford),[7] Mr Beros accepted as accurate the Committee's summation of his complaints set out immediately above stating that 'you have understood my complaint of Mr R J Butcher'[8] and 'you have correctly understood my complaints against Mr Blatchford and Ms Thompson'.[9]

The Committee's decisions in relation to Mr Beros' complaints about Mr Butcher, Ms Thompson and Mr Blatchford

[4] Section 24 bundle of documents pages 206-208.

[5] Section 24 bundle of documents pages 214-215.

[6] Section 24 bundle of documents pages 209-213.

[7] Section 24 bundle of documents pages 217.

[8] Section 24 bundle of documents page 209 (as written).

[9] Section 24 bundle of documents pages 217.

1. In its letter to Mr Beros dated 27 November 2019, the Committee stated that it made the following decisions in relation to his complaints about Mr Butcher, Ms Thompson and Mr Blatchford:[10]

   [10] Section 24 bundle of documents page 4 (original emphasis).

   1.In respect of Mr Butcher:

   1.1to dismiss [c]omplaints B1 to B5 because it was satisfied that there is no reasonable likelihood that Mr Butcher would be found guilty by the State Administrative Tribunal (Tribunal) of either unsatisfactory professional conduct or professional misconduct; and

   1.2specifically found that [c]omplaints B1, B2[, B4] and B5 were unreasonable.

   2.In respect of Ms Thompson:

   2.1to dismiss [c]omplaints T1 to T4 because it was satisfied that there is no reasonable likelihood that Ms Thompson would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct; and

   2.2specifically found that [c]omplaints T3 and T4 were unreasonable.

   3.In respect of Mr Blatchford:

   3.1to dismiss the complaint against him because it was satisfied that there is no reasonable likelihood that Mr Blatchford would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct; and

   3.2specifically found that the complaint against him was unreasonable.

The Committee's reasons for its decisions in relation to Mr Beros' complaints about Mr Butcher, Ms Thompson and Mr Blatchford

1. In its letter to Mr Beros dated 27 November 2019, the Committee set out the following statement of its reasons for its decisions to dismiss his complaints about Mr Butcher, Ms Thompson and Mr Blatchford:[11]

   [11] Section 24 bundle of documents pages 5-17 (original emphasis).

   A statement of the Committee's reasons for its decision to dismiss the complaints is as follows:

   1.The complaints arose from a dispute between you (hereinafter referred to as the complainant) and 4 of your siblings relating to the distribution of the deceased's Estate.

   2.Probate of Will was granted to the complainant's sister Katie, the executor of the Estate, on 4 August 2015.

   3.On 22 December 2015, another of the complainant's siblings, Mr Ante Beros (Ante), by his next friend The Public Trustee, filed in the Supreme Court of Western Australia (Court) an originating summons in CIV 3033 of 2015 (Action) for a claim under the [FP Act].

   4.Subsequently and by way of affidavit material in response, other siblings, Marica and Ms Doleres Beros, also made applications for family provision in the Action.  The sixth sibling, Ms Susanna Beros, made no claim on the Estate.

   5.The Firm [Butcher Paull & Calder] was retained by the complainant in about February 2016 to represent him in the Action.  Mr Butcher acted for the complainant and was the partner responsible for the complainant's matter (matter).  From about February 2017 Ms Thompson had day to day conduct of the matter, under the general supervision of Mr Butcher.

   6.Mr Blatchford represented Katie in her capacity as a beneficiary of the Estate.  (Katie was represented by Murfett Legal in her capacity as executor of the Estate.)

   Complaints against Mr Butcher

   Complaint B1

   7.The complainant complains that Mr Butcher failed to take steps to include him in the mediation conference that took place at the Court on 12 April 2016 (First Mediation) by telephone link.  The complainant lived in Melbourne.

   8.Mr Butcher says he indicated to the complainant that he would raise the possibility of a telephone link at the mediation and the Registrar said he would speak to the complainant if need be.  However, the concept of an open telephone line involves risk because of the confidential nature of the process.

   9.This is consistent with the correspondence the complainant received from the Court on 4 March 2016 in which the complainant was informed by the Acting Associate to Acting Principal Registrar Dixon that "... it may well be that the mediator will speak to you by telephone during the course of the mediation as and when required".  The complainant was, therefore, aware that if the mediator, Registrar Boyle, needed to speak with him the Registrar would do so and that he would not be participating by telephone throughout the whole of the mediation.  The complainant confirmed that Mr Butcher did speak with him by telephone during the mediation.

   10.The complainant also alleges that Mr Butcher conceded ground by permitting the other parties to propose terms of settlement that were inconsistent with the complainant's position.  Mr Butcher submits that lawyers acting for the other parties were always likely to put forward propositions favourable to their clients and less favourable to the other parties, and as each party had a right to articulate their proposal (however ambitious) he was not in a position to prevent them from doing so.  He was aware that the complainant was happy with what he received in the Will and at the mediation he (Mr Butcher) put to the other parties the complainant's view that Katie should pay the claimants and his (the complainant's) entitlements should remain in the Will.

   11.Although the complainant's perception is that Mr Butcher made concessions at the First Mediation this is not borne out by the materials before the Committee.  It was unremarkable for the other parties to put their positions at mediation and for Mr Butcher to inform the complainant about those positions; this is not evidence that Mr Butcher was making concessions in respect of those positions.  Mr Blatchford's letter of 19 April 2016 confirms that the parties presented their positions at mediation, the complainant's position was put to the other parties by Mr Butcher and although towards the conclusion of the mediation the parties explored the possibility of settlement the matter was not resolved.

   12.Regardless of what took place at the mediation, it is apparent that there were no adverse consequences for the complainant.  No agreement was reached at mediation but each of the parties had the opportunity to consider the other parties' positions and then put forward their own settlement proposals which Katie did on 19 April 2016.  As Mr Butcher points out, when the dispute did settle, the complainant received the Tuart Street Properties and the deceased's motor vehicle, which had been gifted to him in the Will, and also received, with Katie, an equal share in the residue of the Estate, an outcome that was consistent with the complainant's position.

   13.For the reasons set out above the Committee formed the view that there was no reasonable likelihood that Mr Butcher would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct in respect of Complaint B1.

   14.In doing so, the Committee specifically found that [c]omplaint B1 was unreasonable.

   Complaint B2

   15.The complainant complains that Mr Butcher failed to confer with him during the Meeting (between the parties' legal representatives that took place on 25 July 2017).  He also alleges that Mr Butcher made concessions regarding the residuary rental income from the Tuart Street Properties without the complainant's instructions and, as a result, the draft Deed was amended to remove Clause 12 and amend Clause 16 (subsequently Clause 15) to state that the residuary rental income earned from the properties held by the Estate, including the Tuart Street Properties, would form part of the residue of the Estate and belong to the residuary beneficiary (Katie).

   16.Mr Butcher says that no clients attended the Meeting as its purpose was to discuss the technical drafting and simplification of the draft Deed.  He did not plan to call the complainant during the Meeting, but reported to Ms Thompson after the meeting so that she could report to the complainant.  He confirms there was a suggestion from Murfett Legal that the residue of the rental monies go to the residuary beneficiary (Katie) as there was only a trivial amount left over after paying for renovations to 69 Tuart Street and the transportation of the complainant's motor vehicle to Victoria.  He says he indicated that he was in no position to agree without instructions even if the sum involved was trivial and, in any event, there were no updated details of the cash held by the Estate.  He says he made no concessions, and was in no position to do so without the complainant's instructions, and nothing was agreed at the Meeting.

   17.There had been an in principle settlement agreement between the parties since late 2016.  A draft Deed had been prepared but by July 2017 the parties had still not reached agreement about the terms of the draft Deed.  As a consequence, Mr Nash (counsel representing Ante) had prepared a redrafted draft Deed for consideration by the parties' legal representatives at the Meeting.  As the purpose of the Meeting was to attempt to finalise the wording of the draft Deed for consideration by the parties, there was no need for Mr Butcher to confer with the complainant or take his instructions during the Meeting.

   18.Ms Thompson reported to the complainant the next day that    The Public Trustee would prepare an amended draft Deed (Amended Draft Deed) and circulate it to the parties for review.  This meant that the complainant, who was already familiar with, and had approved, prior to the Meeting, the terms of the draft Deed, would have an opportunity after the Meeting to consider and provide instructions about any proposed amendments in the Amended Draft Deed, which he did.

   19.There is no evidence that concessions were made by Mr Butcher at the Meeting or any agreement reached that adversely affected the complainant's interests.  Once the Amended Draft Deed was circulated the complainant's concerns were raised with the other parties and, as a result, the Deed was amended to include terms the complainant was willing to accept.

   20.For the reasons set out above the Committee formed the view that there was no reasonable likelihood that Mr Butcher would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct in respect of [c]omplaint B2.

   21.In doing so, the Committee specifically found that [c]omplaint B2 was unreasonable.

   Complaint B3

   22.The complainant complains that Mr Butcher caused Ms Thompson to write to him by email dated 26 July 2017 (26 July Email) to inform him of the matters discussed during the Meeting but the email did not refer to the discussions about the residuary rental income earned from the properties held by the Estate or the amendments to be made to clauses 12 and 16 of the draft Deed.

   23.Mr Butcher says that although there was a suggestion by Murfett Legal that the residue of the rental monies go to Katie on the basis that there was only a trivial amount left in the Estate, nothing was agreed at the time the suggestion was raised by the lawyer from Murfett Legal and he did not know whether the suggestion about the residuary rental income would be included in the Amended Draft Deed.

   24.He confirms that the 26 July Email reflects most, but not all the matters he reported to Ms Thompson.  The email did not report on the suggestion that the residue funds go to Katie.  He says, however, that when Ms Thompson sent the email she did not know whether such a provision was to be included in the Amended Draft Deed as there was no agreement about the issue and no documents relating to the Estate's finances were available at the Meeting.

   25.Although the Committee considered that it would have been preferable for Mr Butcher, rather than Ms Thompson, to report to the complainant about the discussions that took place at the Meeting, or at least settle the 26 July Email, it was noted that Ms Thompson did outline in her email what she considered to be the key issues and, importantly, she did inform the complainant that The Public Trustee was updating the draft Deed and would circulate the Amended Draft Deed for review by the parties.

   26.When the Amended Draft Deed was provided to the complainant 6 days later, on 1 August 2017, he had the opportunity to consider the amendments, which were shown quite clearly in the document circulated to the parties, and provide his instructions to Mr Butcher and Ms Thompson about those amendments.  His position was not prejudiced by not being informed that there had been discussions about the residuary rental income being given to the residuary beneficiary (Katie); in fact, ultimately, the issue was resolved in a manner that benefited him, in that Katie proposed that she share with him the residue of the Estate, which he accepted.

   27.For the reasons set out above the Committee formed the view that there was no reasonable likelihood that Mr Butcher would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct in respect of [c]omplaint B3.

   Complaint B4

   28.The complainant complains that Mr Butcher caused to be sent to him a draft letter to the Associate to Registrar Boyle prepared by Mr Butcher on 4 May 2016 (Draft Letter) seeking a direction that the complainant be excused from attending the next mediation in person on medical grounds and requesting his instructions to send it to the Court in circumstances where he had previously sent a letter from his treating psychiatrist dated 22 February 2016 to the Acting Associate to Acting Principal Registrar Dixon stating that he was unable to travel to      Western Australia for medical reasons and, also, earlier that day he had instructed Mr Butcher not to write to the Registrar.

   29.Mr Butcher says that during the First Mediation (on 12 April 2016) Registrar Boyle had directed the complainant to attend the next mediation.  Due to that direction Mr Butcher drafted the Draft Letter and arranged for it to be sent to the complainant for approval.  As the complainant's instructions were that the Draft Letter was not to be sent, it was not sent.  The doctor's report the complainant had provided to the Court in February 2016 was non-specific and out of date and that is why he suggested to the complainant that a further report was required.

   30.On 3 May 2016 there had been an exchange of emails between the parties' legal representatives relating to the complainant's attendance at the next mediation, during which some of the solicitors representing other parties had referred to the Registrar's direction and had also indicated that, whilst it was their preference was for the complainant to attend the mediation in person, it was a matter for the Court as to whether a party would be excused from attending.  The complainant was aware of this exchange of emails because Mr Butcher forwarded them to him, explaining that the complainant would need to provide a more specific medical report as to why he could not attend the next mediation in person and that he (Mr Butcher) would then address the matter with the Court.

   31.It was appropriate for Mr Butcher to write to the complainant on 3 May 2016 requesting an up to date medical report and advising that he needed to address with the Court whether the complainant could be excused from attending the next mediation in person.  The complainant's response to Mr Butcher was that he was not to write to the Registrar as he (the complainant) had already provided his treating psychiatrist's report to the Court and he had the Registrar's and the other parties' permission to attend by telephone forwarding to Mr Butcher numerous emails.  However, the email correspondence forwarded to Mr Butcher by the complainant had all taken place prior to the First Mediation.

   32.It was entirely consistent with his duties to his client and the Court that Mr Butcher prepared the Draft Letter and arranged for it to be sent to the complainant for his approval.  As Mr Butcher had explained to the complainant on 3 May 2016, if he wished to be excused from attending the next mediation in person, the matter needed to be addressed with the Court.  This was particularly so in light of the Registrar's direction and solicitors representing other parties also expressing a preference for the complainant's attendance in person at the next mediation.  Further, and as Mr Butcher advised in his email of 3 May 2016, if the complainant wished to be excused from attending the next mediation his request should, ideally, have been supported by an up to date medical report explaining why he could not attend.

   33.The Committee noted that when the complainant's instructions were that the Draft Letter was not to be sent (despite the explanation he had received from Mr Butcher as to why it was necessary to write to the Court), Mr Butcher did not send the letter.

   34.For the reasons set out above the Committee formed the view that there was no reasonable likelihood that Mr Butcher would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct in respect of [c]omplaint B4.

   35.In doing so, the Committee specifically found that [c]omplaint B4 was unreasonable.

   Complaint B5

   36.The complainant alleges that Mr Butcher delayed the resolution of the matter and, by his conduct alleged in [c]omplaints B1, B2 and B4, above, increased the legal costs incurred by the complainant.

   37.Mr Butcher submits that the matter was complex due to the number of parties and the fact that several of those parties, including the complainant, had disabilities.  He does not believe the matter was unduly delayed or prolonged and believes that the decisions made in the case were sound and reasonable by all parties and their solicitors.  He understands that the case was stressful for the complainant, but he was content with the final outcome.

   38.Mr Butcher was retained to act for the complainant in about February 2016.  The matter was, in effect, resolved about 18 months later, in September 2017, when all parties agreed to the terms of the Deed.  The Committee observed that, as submitted by Mr Butcher, there were a number of factors that contributed to the complexity of the matter.  There were multiple parties, some with disabilities, each asserting an entitlement to provision from the Estate, some of the claims for provision were inflated, the value of the Estate was significant and it comprised a number of residential properties, most of which the beneficiaries wished to retain.  The Committee considered that 18 months was not an unreasonable period of time for a matter of this complexity to be resolved.  Although the complainant considered there was unreasonable delay, the Committee was of the view that this is not borne out by the materials before it and there was no evidence of unreasonable delay attributable to Mr Butcher.

   39.The complainant also makes general allegations that Mr Butcher did not act in his best interests.  Again, the Committee considered that this is not borne out by the materials before the Committee and that the evidence is consistent with Mr Butcher seeking to act in the complainant's best interests at all times in the course of the matter.

   40.As to the legal costs incurred by the complainant, the Firm's fees totalled about $43,000.  Appropriate costs disclosure was given to the complainant at the commencement of the retainer and during the progress of the matter.  The hourly rates in the Firm's costs agreement were less than the hourly rates in the applicable costs determination.  The fees billed by the Firm were within the Firm's costs estimates and, on their face, appeared reasonable.  The Committee was of the view that there is no evidence that Mr Butcher's conduct in respect of the First Mediation,           the Meeting and his correspondence with the other parties' solicitors and preparation of the Draft Letter to the Court requesting that the complainant be excused from attending the next mediation unreasonably increased the legal costs incurred by the complainant.  Furthermore, it was open to the complainant to have his costs assessed if he was dissatisfied with the Firm's bills.  The Committee also noted that when the Firm entered into the retainer with the complainant it agreed to the complainant paying the Firm's fees in monthly instalments of $1,000, an arrangement which was for the complainant's benefit.

   41.For the reasons set out above the Committee formed the view that there was no reasonable likelihood that Mr Butcher would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct in respect of [c]omplaint B5.

   42.In doing so, the Committee specifically found that [c]omplaint B5 was unreasonable.

   Complaints against Ms Thompson

   Complaint T1

   43.The complainant complains that Ms Thompson failed to notify him that she was unable to attend the Meeting (between the parties' legal representatives on 25 July 2017) and caused or permitted Mr Butcher to attend in her absence without the complainant's prior knowledge and/or approval.

   44.Ms Thompson says she became aware late in the afternoon on 24 July 2017 that she would be unable to attend the Meeting because her husband had to attend an urgent medical appointment.  This is corroborated by the last email exchange between Ms Thompson and the complainant that afternoon, at 4:34pm (WST), in which Ms Thompson discusses issues she would need to clarify at the Meeting.

   45.She also submits that the complainant's prior knowledge of or approval for Mr Butcher to attend the Meeting was not necessary because he had primary conduct of the matter, assisted initially by Mr Meysner and then, from February 2017, by her, and that whilst she was assisting, Mr Butcher supervised the matter generally and was aware of developments in the matter.  She also says that he was fully briefed and aware of all the issues relating to the matter.

   46.The materials before the Committee confirm that Mr Butcher was the person responsible for the complainant's matter.  He had attended the First Mediation (that took place at the Court on 12 April 2016) and other informal conferences relating to the matter.  He was aware of the issues, which were complex, and continued to be involved after each of Mr Meysner (from about August 2016) and Ms Thompson (from about February 2017) assumed day to day conduct of the matter, corresponding directly at times with the complainant and the other parties' solicitors.

   47.Although, as a matter of courtesy, it would have been better if Ms Thompson had informed the complainant, prior to the Meeting, that she was unable to attend the Meeting and Mr Butcher would be representing him instead, it was entirely appropriate that Mr Butcher, as the partner supervising the matter, attend the Meeting in her absence.  He was familiar with the matter and the issues that needed to [be] resolved at the Meeting, the purpose of which was to attempt to finalise the wording of the draft Deed.  By then the parties had reached an in principle settlement and had been corresponding about the terms of the draft Deed.  The complainant was not prejudiced by having Mr Butcher, a senior practitioner, rather than Ms Thompson represent him at the Meeting.

   48.For the reasons set out above the Committee formed the view that there was no reasonable likelihood that Ms Thompson would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct in respect of [c]omplaint T1.

   Complaint T2

   49.The complainant complains that when Ms Thompson sent to him the 26 July Email (her email dated 26 July 2017) outlining the matters discussed at the Meeting, she failed to refer to the discussions about the residuary rental income earned from the properties held by the Estate, in particular that Clause 12 of the draft Deed would be removed and Clause 16 (subsequently Clause 15) would be amended to state that all the residuary rental income would form part of the residue of the Estate and belong to the residuary beneficiary (Katie).

   50.Ms Thompson confirms that she did not specifically refer to those clauses in the draft Deed in her 26 July Email.  She confirms Mr Butcher did inform her that during the Meeting a suggestion had been made that the residuary rental income should go to Katie.  She could not specifically recall why her email did not inform the complainant of those discussions, but thought it likely that she did not include it because she did not then have the financial information as to the quantum of the residuary income and it was not then clear that the suggestion was going to be included in the Amended draft Deed to be prepared by The Public Trustee.

   51.The Committee considered that whilst it would have been preferable for Mr Butcher, rather than Ms Thompson, to report to the complainant about the Meeting, or at least settle the 26 July Email, Ms Thompson did outline in her email what she considered to be the key issues discussed at the Meeting.  Importantly, she informed the complainant that The Public Trustee was updating the draft Deed and would circulate it to the parties for review.

   52.When the Amended Draft Deed was provided to the complainant by Mr Butcher 6 days later, on 1 August 2017,     the complainant had the opportunity to consider the amendments relating to Clauses 12 and 16, which were shown quite clearly in the document, and provide his instructions to Mr Butcher and Ms Thompson about the amendments.  The complainant was familiar with, and had approved, prior to the Meeting, the draft Deed, before the amendments were made.  No changes to the draft Deed were made without his instructions.

   53.The complainant's position was not prejudiced by not being informed that there had been discussions about the residue of the rental income being given to residuary beneficiary; the issues relating to Clauses 12 and 16 (subsequently Clause 15) in the Amended Draft Deed were subsequently discussed with the complainant, raised with the other parties and resolved with amendments to the Amended Draft Deed the complainant was willing to accept.

   54.For the reasons set out above the Committee formed the view that there was no reasonable likelihood that Ms Thompson would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct in respect of [c]omplaint T2.

   Complaint T3

   55.The complainant alleges that Ms Thompson falsely stated in her email to the complainant dated 2 October 2017 that the attached copy of the Deed executed by Marica "was provided to us a short time ago'' in circumstances where the document was sent by Margaret River Law to Mr Meysner on 29 September 2017.

   56.Ms Thompson confirms that by email on Friday, 29 September 2019 at 11:35am a letter from Margaret River Law (to which a copy of the executed Deed was attached) was sent to Mr Meysner.  She was not copied in to that email.  By email on Monday, 2 October 2017 at 1:24pm Mr Meysner sent her a copy of the email from Margaret River Law.  By email at 5:36pm on the same day she sent to the complainant the copy of the Deed executed by Marica.

   57.The materials before the Committee confirm that Ms Thompson did not receive a copy of the executed Deed until Mr Meysner forwarded to her the email sent to him from Margaret River Law.  Ms Thompson sent to the complainant a copy of the executed Deed on the day she received it, which was the next business day after it was sent to Mr Meysner by Margaret River Law.  This was in circumstances where the finalised Deed had been provided to the parties for execution on 22 September 2017 and it was to be expected that it may take a few days for each of the counterparts to be signed and the copies of the executed Deed circulated to the other parties.  In those circumstances it was not unreasonable for Ms Thompson to report that the document was provided a "short time ago".  Further, given the timeframe involved, there was no real adverse consequence to the complainant.

   58.For the reasons set out above the Committee formed the view that there was no reasonable likelihood that Ms Thompson would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct in respect of [c]omplaint T3.

   59.In doing so, the Committee specifically found that [c]omplaint T3 was unreasonable.

   Complaint T4

   60.The complainant alleges that Ms Thompson falsely stated in her email dated 6 October 2017 that the Deed executed by Katie had not been ''circulated" on the day it was received "due to an administrative error" in circumstances where the email from Mr Blatchford was received by Mr Butcher on 2 October 2017.

   61.Ms Thompson says that she was not copied in to Mr Blatchford's email of 2 October 2017 at 2:52pm by which he provided to the parties' solicitors a copy of the Deed executed by Katie on 2 October 2017; that email was sent to Mr Butcher and as he did not forward it to her she was not aware that the Firm had received the document.

   62.This is corroborated by the materials before the Committee.      By email on 5 October 2017 at 11:01am Ms Thompson requested from Murfett Legal and Blatchfords (copied to the other parties' solicitors) a copy of the Deed signed by Katie.      In response, at 11:16am The Public Trustee forwarded to        Ms Thompson Mr Blatchford's email (of 2 October 2017) and at 11:28am Blatchfords forwarded to her Mr Blatchford's email.  Ms Thompson provided the complainant with a copy of the Deed executed by Katie a few minutes later, at 11:37am.

   63.In her email to the complainant on 6 October 2017 Ms Thompson explained that the Deed was circulated by Blatchfords on 2 October 2017 "but due to an administrative error, was not seen until yesterday".  Although it is unfortunate that Mr Butcher did not forward Mr Blatchford's email to Ms Thompson when he received it, Ms Thompson did send the document to the complainant as soon as she received it.          Her explanation to the complainant about the reason for the delay could not be said to have been false because, in a sense, there was an administrative error in that Mr Butcher did not either forward the email to Ms Thompson or send a copy of the executed Deed to the complainant.  The Committee noted also that there was no real adverse consequence for the complainant.

   64.For the reasons set out above the Committee formed the view that there was no reasonable likelihood that Ms Thompson would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct in respect of [c]omplaint T4.

   65.In doing so, the Committee specifically found that [c]omplaint T4 was unreasonable.

   Complaint against Mr Blatchford

   66.The complainant alleges that Mr Blatchford unlawfully removed pages 6 and 7 of Katie's Affidavit before he provided a copy of it to Mr Butcher by email on 31 March 2017.

   67.Mr Blatchford rejects the allegation.  He says the position is that on 29 February 2016 his firm and others, including the complainant, received from Murfett Legal a full copy of the affidavit.  On 4 March 2016 he received an exchange of emails to the effect that Butcher Paull & Calder was, as at 2 March 2016, on record as acting for the complainant.  This was confirmed by a letter received from Butcher Paull & Calder on    4 March 2006.  On 30 March 2016 he had a telephone conversation with Mr Butcher during which it was agreed that it would be useful for them to meet with their respective clients.  A meeting was arranged for the following Tuesday, 5 April 2016, at Mr Butcher's office.  The complainant was to attend by telephone.  Mr Blatchford confirmed the meeting by email dated 30 March 2016 and received an email from Mr Butcher later on that day.  As a result of that email, Mr Blatchford sent the email the subject of the complaint to Mr Butcher on 31 March 2016 at 11:47am.  The meeting went ahead as planned on 5 April 2016.

   68.Mr Blatchford says that the email of 31 March 2016 was sent solely for the purpose of providing Mr Butcher with a complete copy of Katie's Affidavit.  The email was typed and sent by his secretary, who also attended to attaching the affidavit to the email.  He states that neither he nor she was aware that pages 6 and 7 of the affidavit were not sent with that email until he was notified of the complaint.  He says that if the error had been pointed out at the time or subsequently (at the meeting of 5 April or otherwise) then the omission would have been immediately rectified.

   69.The materials before the Committee confirm that arrangements were made for Mr Blatchford to meet with Mr Butcher on         5 April 2016 and prior to the meeting there was correspondence between them about Katie's Affidavit.  The Committee considered there was nothing in the materials to suggest otherwise than that Mr Blatchford intended to send a complete copy of the affidavit to Mr Butcher.

   70.Regardless of the oversight in respect of the pages missing from the copy of Katie's Affidavit that had been emailed to Mr Butcher on 31 March 2016, there were no adverse consequences for the complainant and there is no evidence that the availability or otherwise of the information contained in pages 6 and 7 of Katie's Affidavit influenced the outcome of the mediation on 12 April 2016.  The matter did not settle at the mediation and when the matter was settled it was in terms that the complainant was willing to accept.

   71.For the reasons set out above the Committee formed the view that there was no reasonable likelihood that Mr Blatchford would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct in respect of the complaint against him.

   72.In doing so, the Committee specifically found that the complaint against him was unreasonable.

Legal framework and principles

1. Section 410(1)(e) of the LP Act enables a complaint about an Australian legal practitioner to be made to the Committee by 'any … person who has or had a direct personal interest in the matters alleged in the complaint'. Mr Beros had a direct personal interest in the matters alleged in his complaints about Mr Butcher, Ms Thompson and Mr Blatchford.

2. Section 421 of the LP Act provides that the Committee must investigate each complaint made to it.

3. Section 424(1) of the LP Act provides that, after an investigation is completed, the Committee must take one of the following three actions:

   •dismiss the complaint under s 425 of the LP Act;

   •take action under s 426 of the LP Act; or

   •refer the matter to the Tribunal under s 428 of the LP Act.

4. Section 425 of the LP Act empowers the Committee to dismiss a complaint in terms which relevantly include the following:

   After an investigation of a complaint against an Australian legal practitioner is completed, the Complaints Committee may dismiss the complaint if satisfied that —

   (a)there is no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct[.]

   …

5. As indicated earlier, the Committee dismissed each of Mr Beros' complaints about Mr Butcher, Ms Thompson and Mr Blatchford under s 425(a) of the LP Act.

6. If it does not dismiss a complaint under s 425 of the LP Act, s 426 of the LP Act empowers the Committee to take summary action in relation to the complaint in the following terms:

   (1)This section applies if —

   (a)the Complaints Committee —

   (i)completes an investigation into the conduct of an Australian legal practitioner; and

   (ii)is satisfied that there is a reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of unsatisfactory professional conduct (but not professional misconduct); and

   (iii)is satisfied that the practitioner is generally competent and diligent; and

   (iv)is satisfied that the taking of action under this section is justified having regard to all the circumstances of the case (including the seriousness of the conduct concerned) and to whether any other substantiated complaints have been made against the practitioner;

   and

   (b)the Australian legal practitioner concerned consents to the exercise of power by the Complaints Committee under this section.

   (2)If this section applies, the Complaints Committee may do any one or more of the following —

   (a)publicly reprimand the practitioner or, if there are special circumstances, privately reprimand the practitioner;

   (b)order the practitioner to pay to the Board a fine of a specified amount not exceeding $2 500;

   (c)make a compensation order;

   (d)order that the practitioner seek and implement, within a period specified in the order, advice from the Board, or from a person specified in the order, in relation to the management and conduct of the practitioner's practice, or the specific part or aspect of the practice specified in the order.

   (3)If action is taken under subsection (2) in relation to a matter, no further action is to be taken under this Part with respect to the matter.

   (4)An order made by the Complaints Committee may be enforced as if it were an order of the State Administrative Tribunal.

7. Section 428 of the LP Act states as follows:

   (1)If the Complaints Committee determines that a matter should be heard by the State Administrative Tribunal the Committee may refer the matter to the Tribunal.

   (2)The Complaints Committee is not limited under subsection (1) by the terms of any complaint it has received or by the subject matter of any investigation it has conducted and is not required to conduct an investigation before referring a matter to the State Administrative Tribunal.

8. The term 'unsatisfactory professional conduct' is non-exhaustively defined in s 402 of the LP Act as follows:[12]

   For the purposes of this Act —

   unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

   [12] Original emphasis.

9. The term 'professional misconduct' is non-exhaustively defined in s 403 of the LP Act as follows:[13]

   [13] Original emphasis.

   (1)For the purposes of this Act —

   professional misconduct includes —

   (a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

   (b)conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

   (2)For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.

10. The meaning of the expression 'reasonable likelihood' in s 425 of the LP Act was discussed by the Tribunal[14] in Greenwood and        Legal Profession Complaints Committee [2010] WASAT 31; (2010) 70 SR (WA) 144 at [27]-[29] as follows:

    The meaning of the phrase 'reasonable likelihood' in the context of s 425 of the LP Act is synonymous with the phrase 'reasonably likely'. The meaning of that phrase was discussed in Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 at [842] (Marks J, Young CJ and Teague J agreeing) in the following passage:

    The relevant expression here is 'reasonably likely' which has some analogy to 'fair probability'.  It suggests the mathematical approach; the word 'reasonably' being a qualification of 'likely', alternatively, a measure in colloquial language of the likelihood. 

    The expression 'reasonably likely' is substantially idiomatic,     its meaning not necessarily unlocked by close dissection.  In its ordinary use, it speaks of a chance of an event occurring or not occurring which is real ­ not fanciful or remote.  It does not refer to a chance which is more likely than not to occur, that is, one which is 'odds on' or where between nil and certainty it should be placed.  A chance which in common parlance is described as 'reasonable' is one that is 'fair', 'sufficient' or 'worth noting'.

    Those observations are equally apt to describe the meaning of 'reasonable likelihood' in s 425 of the LP Act.

    In considering whether there is a reasonable likelihood that a practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct, it is also necessary to bear in mind the Tribunal's approach to the proof of matters referred to it under s 428(1) of the LP Act. It is well recognised that the consequences for a practitioner of an adverse determination are such that clear and cogent evidence will be required before a finding of unsatisfactory professional conduct or professional misconduct is made: Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42 at [63]. That follows from the fact that although the standard of proof is on the balance of probabilities, nevertheless the Tribunal must feel an 'actual persuasion' of the occurrence or existence of a relevant fact in determining whether or not conduct of that kind has been made out: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 362 (Dixon J).

    [14] Judge Pritchard DP, Ms D Dean M and Mr M Odes QC S Sess M.

11. Section 435 of the LP Act confers a right of review by the Tribunal on a person aggrieved by a decision of the Committee to dismiss a complaint in terms which relevantly include the following:

    (1)Subject to subsection (2), a person aggrieved by —

    (a)a decision of the Complaints Committee to dismiss a complaint; …

    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; …

    the person aggrieved cannot apply to the State Administrative Tribunal for a review of the decision without the leave of the Tribunal.

12. Section 17(1) of the SAT Act states as follows:

    If the matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction.

13. As the matters that the enabling Act in this case, namely s 435(1)(a) of the LP Act, give the Tribunal jurisdiction to deal with expressly involve the review of decisions, this matter comes within the review jurisdiction of the Tribunal under s 17(1) of the SAT Act.

14. Section 27 of the SAT Act states as follows in relation to review proceedings in the Tribunal:

    (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.

15. As the Court of Appeal[15] observed and held in Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331; (2018) 12 ARLR 135 at [121]:

    … Section 27(1) of the SAT Act require[s] that the Tribunal's review of [a reviewable] decision be by way of a hearing de novo. In the context of the SAT Act, the phrase 'hearing de novo' bears its ordinary meaning recently described in Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [[2018] WASCA 32 at [61]]:

    An appeal by way of hearing de novo involves a fresh hearing, and the appellate body may overturn the decision appealed from regardless of error. It is an exercise of original, not appellate, jurisdiction. Where the statutory provision indicates that the appellate body is required to 'make such order as it thinks fit', this is an indication that the appellate body's powers are not constrained by the need to identify error on the part of the decision-maker, but, rather, it is obliged to give its own decision on the evidence before it.

    [15] Buss P and Murphy and Mitchell JJA.

16. Thus, the Tribunal's function on review is to consider each of       Mr Beros' complaints about Mr Butcher,[16] Ms Thompson[17] and           Mr Blatchford[18] afresh and to make the correct and preferable decision at the time of the decision upon the review, on the evidence before the Tribunal, whether or not that material was before the Committee or existed at the time of the Committee's decision regarding each complaint.

    [16] In the case of complaints B1, B2, B4 and B5, which the Committee specifically found to be 'unreasonable', only if the Tribunal grants leave to seek review under s 435(2) of the LP Act.

    [17] In the case of complaints T3 and T4, which the Committee specifically found to be 'unreasonable', only if the Tribunal grants leave to seek review under s 435(2) of the LP Act.

    [18] Only if the Tribunal grants leave to seek review under s 435(2) of the LP Act, because the Committee specifically found the complaint to be 'unreasonable'.

17. As this matter comes within the review jurisdiction of the Tribunal, no party bears any legal or practical onus of proof.[19]              In particular, Mr Beros does not bear any onus to show that a departure from the Committee's decisions is justified.[20]  Rather, the Tribunal must conduct a de novo consideration of each complaint[21] and determine the correct and preferable decision at the time of the decision upon the review.

    [19] Ord Irrigation Cooperative Ltd v Department of Water [124].

    [20] Ord Irrigation Cooperative Ltd v Department of Water [128].

    [21] In the case of complaints B1, B2, B4, B5, T3 and T4 and the complaint about Mr Blatchford, each of which the Committee specifically found to be 'unreasonable', only if the Tribunal grants leave to seek review under s 435(2) of the LP Act.

18. Section 29(3) of the SAT Act states as follows in relation to the Tribunal's powers in the exercise of its review jurisdiction:

    The Tribunal may —

    (a)affirm the decision that is being reviewed; or

    (b)vary the decision that is being reviewed; or

    (c)set aside the decision that is being reviewed and —

    (i)substitute its own decision; or

    (ii)send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,

    and, in any case, may make any order the Tribunal considers appropriate.

19. As indicated earlier, in its decisions to dismiss complaints B1, B2, B4, B5, T3 and T4 and the complaint about Mr Blatchford, the Committee specifically found these complaints to be 'unreasonable'. Consequently, under s 435(2) of the LP Act, Mr Beros cannot apply to the Tribunal for review of the Committee's decisions to dismiss these complaints without the leave of the Tribunal.

20. In Winzer and Roberts-Smith [2011] WASAT 140, President Justice Chaney held in relation to the applicable principles concerning the granting of leave to seek review under s 435(2) of the LP Act at [8] as follows:

    The question of leave pursuant to s 435(2) of the LP Act is to be determined according to the principles outlined in Wilson v Metaxis (1989) WAR 285. In that case, the full Supreme Court found that for leave to be granted:

    1.It must be shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave.

    2.In addition that substantial injustice would be done by leaving the decision unreversed.  What is substantial injustice must depend on all of the circumstances of the case.

Issues for determination

1. The following principal issues arise for determination in these proceedings:

   (1)In relation to complaints B1, B2, B4, B5, T3 and T4 and the complaint about Mr Blatchford, whether the Committee's decision to dismiss the complaint was wrong or at least attended with sufficient doubt to justify the grant of leave.

   (2)If the answer to issue (1) in relation to the Committee's decision to dismiss a complaint is 'yes', whether substantial injustice would be done by leaving the Committee's decision to dismiss the complaint unreversed.

   (3)If the answer to both issues (1) and (2) in relation to the Committee's decision to dismiss a complaint is 'yes', and in relation to complaints B3, T1 and T2, whether there is any reasonable likelihood that the Tribunal might find the practitioner about whom the complaint is made guilty of either unsatisfactory professional conduct or professional misconduct if the complaint were referred by the Committee to the Tribunal under s 428(1) of the LP Act.

2. We will address each of Mr Beros' complaints about Mr Butcher, Ms Thompson and Mr Blatchford in turn, after referring to aspects of the 'decision sought' by Mr Beros in the application which are not within the Tribunal's jurisdiction and power in these proceedings.

Aspects of 'decision sought' by Mr Beros which are not within the Tribunal's jurisdiction and power in these proceedings

1. Under the heading 'decision sought' in the application, Mr Beros indicates that he would like the Tribunal to make the following decisions:

   1)Overturn the dismissal[.]

   2)Financial compensation[.]

2. In emails to the Tribunal on 11 December 2019, Mr Beros added the following to the 'decision sought' in the application:

   3)Apply to dispute legal costs[.]

   4)Unsatisfactory professional conduct or professional misconduct[.]

3. Although the first decision Mr Beros would like the Tribunal to make, namely '[o]verturn the dismissal', falls within the Tribunal's jurisdiction and power under s 435(1)(a) of the LP Act (in relation to complaints B1, B2, B4, B5, T3 and T4 and the complaint about Mr Blatchford, only if the Tribunal grants leave under s 435(2) of the LP Act), the other three decisions Mrs Beros would like the Tribunal to make, namely '[f]inancial compensation', '[a]pply to dispute legal costs' and '[u]nsatisfactory professional conduct or professional misconduct', do not fall within the Tribunal's jurisdiction or power in these proceedings.

4. In relation to '[f]inancial compensation', Mr Beros says in his submissions that it was 'inexcusable and unreasonable' for Mr Butcher to have charged fees for appearing at a mediation conference in the Supreme Court proceedings on 12 April 2016 when, Mr Beros complains, Mr Butcher failed to take steps to include him in the mediation conference (complaint B1).[22]  Mr Beros submits that Mr Butcher 'should refund the $7000+ I was charged for his professional shutout of myself'.[23]

   [22] Applicant's submissions page 7.

   [23] Applicant's submissions page 7.

5. 'Financial compensation', in terms of making a 'compensation order', is a summary action that the Committee may take, under s 426(2)(c) of the LP Act, in circumstances where s 426 of the LP Act applies. Section 426 of the LP Act does not apply in this case, because the Committee is not 'satisfied that there is a reasonable likelihood that [Mr Butcher, Ms Thompson or Mr Blatchford] would be found guilty by the … Tribunal of unsatisfactory professional conduct (but not professional misconduct)' (under s 426(1)(a)(ii)) and has not considered whether it is satisfied that the relevant practitioner is 'generally competent and diligent' (under s 426(1)(a)(iii)) or that the taking of action under s 426 is 'justified having regard to all the circumstances of the case (including the seriousness of the conduct concerned) and to whether any other substantiated complaints have been made against the practitioner' (under s 426(1)(a)(iv)). Section 426 of the LP Act also does not apply in this case, because none of the 'practitioner[s] concerned consen[t] to the exercise of power by the … Committee under this section' (under s 426(1)(b)). 'Financial compensation', in terms of making a 'compensation order', is also a penalty that the Tribunal may impose, under s 438(2)(b) and s 441(c) of the LP Act, where the Committee determines that a matter should be heard by the Tribunal and refers the matter to the Tribunal under s 428 of the LP Act, and where, after it has completed a hearing in relation to the referral, the Tribunal is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct under s 438(1) of the LP Act. However, this has not occurred in this case. The Tribunal, therefore, does not have jurisdiction or power to make a decision in terms of '[f]inancial compensation' in these proceedings.

6. The Tribunal also does not have jurisdiction or power in these proceedings to make a decision enabling Mr Beros to '[a]pply to dispute legal costs', because the complaints made by him to the Committee, and dismissed by the Committee under s 425(a) of the LP Act, do not include a complaint disputing legal costs. As the Tribunal[24] determined in SJX and Legal Profession Complaints Committee [2012] WASAT 154 at [17]:

   The Tribunal does not have jurisdiction to consider a complaint that was not made to the Committee, because the Tribunal may only review 'a decision of the Complaints Committee to dismiss a complaint'.  If a complaint has not been made to the Committee, it could not have been dismissed by the Committee, and the Tribunal does not, therefore, have jurisdiction in relation to it.  …

   [24] Judge Parry DP, Mr C Raymond SM and Mr J Mansveld M.

1. Finally, the Tribunal does not have jurisdiction or power in these proceedings to make a decision that Mr Butcher, Ms Thompson or Mr Blatchford is guilty of '[u]nsatisfactory professional conduct or professional misconduct', because its jurisdiction to make a finding that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct, under s 438(1) of the LP Act, only arises in circumstances where the Committee has determined that a matter should be heard by the Tribunal and has referred the matter to the Tribunal under s 428(1) of the LP Act. This has not occurred in this case. Rather, as indicated earlier, the Tribunal's jurisdiction and power in these proceedings is to determine whether there is any reasonable likelihood that the Tribunal might find the relevant practitioner guilty of either unsatisfactory professional conduct or professional misconduct if complaints B3, T1 and T2 and, if leave is granted to seek review of the dismissal of a complaint under s 435(2) of the LP Act, complaints B1, B2, B4, B5, T3 and T4 and the complaint about Mr Blatchford were referred by the Committee to the Tribunal under s 428(1) of the LP Act.

Complaint B1 ­ Engineering the failure of the mediation on 12 April 2016 by failing to take steps to include Mr Beros in the mediation by telephone and conceding ground by permitting other parties to propose terms of settlement

1. Mr Beros lives in Melbourne and has a medical condition which precluded his attendance in person at a mediation conducted by Registrar Boyle in the Supreme Court proceedings on 12 April 2016.  In his letter dated 8 October 2019 in response to complaint B1, Mr Butcher said that he indicated to Mr Beros that 'I would raise the possibility of a telephone link at the mediation' and that 'I did so, and the Registrar said that he would speak to Mr Beros over the telephone if need be'.[25]  Similarly, Mr Butcher says in his submissions to the Tribunal that he informed the Registrar that Mr Beros was available by telephone and that the Registrar said that he 'would call Mr Beros if necessary', but 'did not speak to Mr Beros during the mediation or arrange a telephone link'.[26]  As Mr Butcher also points out in his submissions, 'Mr Beros was given the same information about the mediation by the Court in an email dated 4 March 2016'.[27]  In that email, the acting associate to Acting Principal Registrar Dixon said to Mr Beros:[28]

   … [A]s regards your participation by telephone, it may well be that the mediator will speak to you by telephone during the course of the mediation as and when required.

   [25] Section 24 bundle of documents page 237.

   [26] Second respondent's submissions [1].

   [27] Second respondent's submissions [2].

   [28] Section 24 bundle of documents page 39.

2. Mr Beros submits that:[29]

   … Mr Butcher didn't ask for my full participation at the mediation!  Mr Butcher as a seasoned professional using word games against me by trying to muddy the water's [sic] so to speak, by using words like, "raise the possibility", is utter deceptive nonsense !

   Mr Butcher simply chose not to have me included in the mediation, as opposed to my new authentic lawyer for the second mediation [Mr Meysner] who did. …

   [29] Applicant's submissions page 6 (as written).

3. Mr Beros also relies on an email from Katie Beros, which states, in part, as follows:[30]

   …

   From what I observed Mr Butcher did not include [Mr Beros] in the negotiations on the phone from Melbourne (which he could of done) as he was unable to attend in person.  I found this was strange and wondered why.  It would of been beneficial for all of us for [Mr Beros] to be included on the phone during the mediation process.

   In the second mediation, [Mr Beros] had a new solicitor from the same law firm who this time organised [Mr Beros] to participate on the phone from Melbourne.  Progress at this mediation was made as a result of [Mr Beros'] full participation unlike the first mediation.

   …

   [30] Applicant's bundle of documents page 146 and applicant's submissions page 6 (as written).

4. There is no cogent evidence to the effect that Mr Butcher 'didn't ask for [Mr Beros'] full participation at the mediation' or contradicting Mr Butcher's statements that he informed Registrar Boyle that Mr Beros was available by telephone and the Registrar said that he would call Mr Beros if necessary.  Indeed, the Registrar's response, conveyed by Mr Butcher, is entirely consistent with the email from the acting associate to Acting Principal Registrar Dixon to Mr Beros on 4 March 2016 stating that 'it may well be that the mediator will speak to you by telephone during the course of the mediation as and when required'.  Furthermore, Mr Butcher was Mr Beros' legal representative in the Supreme Court proceedings and authorised to represent him at the mediation.  Although Katie Beros considers that it would have 'been beneficial for all of us for [Mr Beros] to be included on the phone during the mediation process', she does not say that she or Mr Blatchford raised this with Mr Butcher or Registrar Boyle at the mediation.

5. The Committee's decision to dismiss complaint B1 under s 425(a) of the LP Act was not wrong or attended with sufficient doubt to justify the grant of leave. Rather, the Committee's decision was correct. There is no reasonable likelihood that the Tribunal would find Mr Butcher guilty of either unsatisfactory professional conduct or professional misconduct in terms of complaint B1 if that matter were referred by the Committee to the Tribunal under s 428(1) of the LP Act. Mr Butcher took reasonable steps to include Mr Beros in the mediation by telephone, by informing the Registrar that Mr Beros was available by telephone, and the Registrar said that he would call Mr Beros if necessary, but obviously did not consider it to be necessary.

6. The complaint that Mr Butcher conceded ground by permitting other parties to propose terms of settlement at the mediation is misconceived.  The very purpose of a mediation is to enable parties to explore the possibility of settlement and propose terms of settlement.  Moreover, a lawyer for one party cannot prevent another party or their legal representative from proposing terms of settlement favourable to that party at a mediation.  As the Committee said in its reasons, it was 'unremarkable for the other parties to put their positions at mediation and for Mr Butcher to inform [Mr Beros] about those positions'.[31]  There is no evidence that any concessions were made on behalf of Mr Beros at the mediation and the Supreme Court proceedings were not resolved at the mediation.

   [31] Section 24 bundle of documents page 6 [11].

7. It follows that leave to seek review of the Committee's decision to dismiss complaint B1 under s 425(a) of the LP Act should be refused.

Complaint B2 ­ Failing to confer with Mr Beros during a meeting between the parties' legal representatives on 25 July 2017 and making concessions in regard to the residuary rental income produced by the Tuart Street properties without taking instructions

1. The 'Tuart Street properties' referred to in complaint B2 are two adjoining residential properties in Tuart Street, Yokine, which the deceased bequeathed to Mr Beros in his will.  In his letter dated 8 October 2019 to the Committee in relation to complaint B2, Mr Butcher said that he attended a meeting between the lawyers for the parties in the Supreme Court proceedings on 25 July 2017 (in place of Ms Thompson)[32] 'to discuss the drafting and simplification of the settlement [D]eed' between the parties in the Supreme Court proceedings.[33]  Mr Butcher also said that:[34]

   … At the meeting I made no concessions whatsoever.  I was in no position to do so until instructions were received from Mr Beros.

   [32] See discussion in relation to complaint T1 below.

   [33] Section 24 bundle of documents page 238 [2].

   [34] Section 24 bundle of documents page 238 [2].

2. Similarly, in his submissions to the Tribunal, Mr Butcher said:[35]

   I did not agree to the rental income [from the Tuart Street properties] being paid to Katie [Beros] as I had no instructions to do so.  It was in any event not a proposition that could be reasonably considered absent the financial information.

   [35] Second respondent's submissions [9].

3. Mr Beros submits, correctly, that the meeting between the legal representatives of the parties in the Supreme Court proceedings on 25 July 2017 was referred to elsewhere in the evidence as a meeting to 'finalise' the Deed, rather than to discuss the 'drafting and simplification' of the Deed.  However, there is no meaningful distinction between discussing the drafting and simplification of the Deed, on the one hand, and finalising the Deed, on the other hand.  In either case, the Deed would still have to be approved and executed by each of the parties in the Supreme Court proceedings after the meeting.  Furthermore, it is clear on the evidence that the settlement Deed was not finalised at the meeting, but rather the outcome of the meeting was that the Public Trustee (representing Ante Beros as his Next Friend in the Supreme Court proceedings) would circulate a revised draft Deed for consideration by the parties in the Supreme Court proceedings after the meeting.

4. Mr Beros also submits that 'Mr Butcher agreed at finalisation meeting to the changes !' that were subsequently included in the revised draft Deed circulated on 1 August 2017.[36]  The changes Mr Beros submits Mr Butcher agreed to at the meeting on 25 July 2017 were relevantly the deletion of clause 12 (which set out his entitlement to the residuary rental income from the Tuart Street properties) and the amendment of clause 16 (subsequently clause 15) to state that all the residuary rental income earned from the assets of the estate pending distribution would form part of the residue of the estate and belong to the residuary beneficiary (Katie Beros).  Although Mr Butcher said in his letter dated 8 October 2019 to the Committee that a suggestion was made at the meeting on 25 July 2017 by Mr Luke Davies, a senior associate at Murfett Legal, representing Katie Beros in her capacity as executor of the will of the deceased, that the residue of rental funds go to his client, Mr Butcher also said that he 'indicated that I was in no position to agree without instructions even if the sum involved was trivial' and that 'although this was a suggestion to simplify the [D]eed there was no indication that the suggestion would be included in the draft [D]eed'.[37]

   [36] Applicant's submissions page 10 (as written).

   [37] Section 24 bundle of documents page 238.

5. In support of his submission, Mr Beros relies on an email from Mr Davies to Ms Thompson on 31 August 2017, which states that while Katie Beros, being the executor and residuary beneficiary under the will of the deceased, 'previously suggested that the residuary of the estate accounts be divided amongst all the property owners proportionately at settlement', '[t]hat position was changed by the parties at the meeting on 25 July 2017, and in the draft [D]eed circulated shortly thereafter, to reflect that any residuary amount is agreed to be left to Katie [Beros]'.[38]

   [38] Applicant's bundle of documents page 13 referred to in the applicant's submissions at page 9.

6. However, and notwithstanding Mr Davies' statement in the email on 31 August 2017 to Ms Thompson that the 'position was changed by the parties at the meeting on 25 July 2017, and in the draft [D]eed circulated shortly thereafter', no agreement to delete clause 12 or to amend clause 16 (subsequently clause 15) of the draft Deed in the manner contemplated by Mr Davies was made at the meeting on 25 July 2017.  This is clear from subsequent events.  Once the revised draft Deed was circulated by the Public Trustee for consideration by the parties in the Supreme Court proceedings on 1 August 2017, it was forwarded by Mr Butcher to Mr Beros that day.[39]  By email on 2 August 2017, Mr Beros instructed Mr Butcher as follows:[40]

   Hi Robert,

   I do not agree with removing point 12.

   This in turn will need point 16 to thus not cancel out point 12.

   …

   [39] Section 24 bundle of documents page 113.

   [40] Section 24 bundle of documents page 112.

7. On 10 August 2017, Ms Thompson conveyed Mr Beros' opposition to the deletion of clause 12 and the amendment of clause 16 (subsequently clause 15) in the revised draft Deed circulated on             1 August 2017 to Mr Davies.[41]  On 14 September 2017, the revised draft Deed was further revised by Murfett Legal in terms that the residue of the estate (after all income and expenses had been accounted for) would be paid equally to Mr Beros and Katie Beros.  By email dated 15 September 2017, Mr Beros agreed to this proposal.[42]             On 27 September 2017, Mr Beros executed the further revised Deed in these terms settling the Supreme Court proceedings.[43]

   [41] Applicant's bundle of documents page 14.

   [42] Section 24 bundle of documents page 233.

   [43] Section 24 bundle of documents page 152.

8. In our view, the Committee's decision to dismiss complaint B2 under s 425(a) of the LP Act was not wrong or attended with sufficient doubt to justify the grant of leave. Rather, it was the correct decision. Given that the purpose of the meeting on 25 July 2017 was for the lawyers to discuss the drafting and simplification of the draft settlement Deed and that the outcome of the meeting was that the Public Trustee would circulate a revised draft Deed for consideration by the parties, there was no need for Mr Butcher to confer with Mr Beros during the meeting. There is no cogent evidence that Mr Butcher made any concessions or entered into any agreement in regard to the residuary rental income produced by the Tuart Street properties at the meeting on 25 July 2017. Furthermore, the subsequent events, including the fact that the revised draft Deed was ultimately further revised in a manner agreeable to Mr Beros, indicates that no concessions were made and no agreement was reached at the meeting on 25 July 2017, although it does appear that Katie Beros' position in relation to the residuary rental income produced by the Tuart Street properties changed prior to the meeting. There is, therefore, no reasonable likelihood that Mr Butcher would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct in terms of complaint B2 if that matter were referred by the Committee to the Tribunal under s 428(1) of the LP Act.

9. It follows that leave to seek review of the Committee's decision to dismiss complaint B2 under s 425(a) of the LP Act should be refused.

Complaint B3 ­ Causing Ms Thompson to write to Mr Beros to inform him of the matters discussed during the meeting on 25 July 2017 in circumstances where that email did not refer to amendment of the draft Deed to delete clause 12 and to amend clause 16 (subsequently clause 15) to state that all residuary rental income would form part of the residue of the estate

1. In our view, for the reasons given below, there is no reasonable likelihood that the Tribunal would find Mr Butcher guilty of either unsatisfactory professional conduct or professional misconduct in terms of complaint B3 if that matter were referred by the Committee to the Tribunal under s 428(1) of the LP Act.

2. As we discuss in relation to complaint T1 below, Ms Thompson, who, as indicated earlier, had day to day conduct of Mr Beros' matter in relation to the Supreme Court proceedings, was supposed to attend the meeting between the legal representatives of the parties in the Supreme Court proceedings on 25 July 2017, but was unable to do so, because she became aware, late in the afternoon on 24 July 2017, that her husband had an urgent medical appointment that she needed to attend with him on 25 July 2017.  Ms Thompson therefore arranged for Mr Butcher, who, as indicated earlier, was the responsible supervising partner in relation to the matter, to attend the meeting in her place. 

3. At 12.29 pm on 26 July 2017, Mr Butcher emailed Ms Thompson confirming that he attended the meeting on 25 July 2017 and briefly outlining matters discussed at the meeting.  In the email to Ms Thompson, Mr Butcher said that, at the meeting, lawyers from Murfett Legal, who, as indicated earlier, represented Katie Beros in her capacity as executor of the will of the deceased, made a 'suggestion … that the residue funds go to Katie [Beros]', and Mr Butcher added that '[t]his I believe affects clause 12 which relates to the Tuart Street properties'.[44]  Mr Butcher also said in the email to Ms Thompson that '[t]he client will need to approve any change which deletes clause 12'.[45]  During the afternoon on 26 July 2017, Ms Thompson and Mr Butcher exchanged brief emails clarifying aspects of the discussion which took place at the meeting on 25 July 2017.  There was no express reference in the emails between Mr Butcher and Ms Thompson on 26 July 2017 as to any amendment of clause 16 (subsequently clause 15) of the draft Deed. 

   [44] Section 24 bundle of documents page 110.

   [45] Section 24 bundle of documents page 110.

4. At 5.50 pm on 26 July 2017, Ms Thompson emailed Mr Beros referring to the meeting on 25 July 2017 'between the parties' solicitors to finalise the Deed', noting that '[a]s I was unable to attend,           Robert Butcher attended the meeting to discuss the terms of the Deed', and briefly outlining four issues that Mr Butcher had advised Ms Thompson were discussed at the meeting.[46]  One of the four issues outlined in the email was that 'the Public Trustee will update the Deed and circulate a copy for the parties to review'.[47]  Ms Thompson's email to Mr Beros reporting on the meeting held on 25 July 2017 did not refer to any suggestion of removing clause 12 or amending clause 16 (subsequently clause 15) of the draft Deed to the effect that all residuary rental income earned from the assets of the estate of the deceased would form part of the residue of the estate.

   [46] Section 24 bundle of documents page 105.

   [47] Section 24 bundle of documents page 105.

5. As Mr Butcher said in his submissions to the Tribunal, as at          26 July 2017, Ms Thompson was managing the file on a day to day basis and consequently Mr Butcher 'did not cause or instruct her to write to Mr Beros [about the meeting on 25 July 2017,] but expected that she would do so'.[48]  More fundamentally, as Mr Butcher said in his letter dated 8 October 2019 to the Committee in relation to complaint B3, although Ms Thompson's email to Mr Beros on 26 July 2017 did not refer to the suggestion made by lawyers from Murfett Legal at the meeting on 25 July 2017 that 'the residue funds go to Katie [Beros]',      'at that point Ms Thompson did not know if such a provision was to be included in the draft [D]eed'.[49]  As Mr Butcher also said in his letter to the Committee:[50]

   … The meeting was a discussion only about drafting the [D]eed.  Nothing was agreed.

   [48] Second respondent's submissions [11].

   [49] Section 24 bundle of documents page 238.

   [50] Section 24 bundle of documents page 238.

6. We concur with the Committee's observation that 'it would have been preferable for Mr Butcher, rather than Ms Thompson, to report to the complainant about the discussions that took place at the [m]eeting, or at least settle the 26 July [e]mail', as he had direct knowledge of what occurred at the meeting and as that would have minimised fees charged to Mr Beros.  However, Ms Thompson had day to day carriage of the matter, her email to Mr Beros conveyed the substance of most of what Mr Butcher told her had been discussed, including, importantly, that the draft Deed would be updated by the Public Trustee and circulated to the parties for review, and she did not know at the time that the revised draft Deed would delete clause 12 and amend clause 16 (subsequently clause 15) to state that all residuary rental income earned from the assets of the estate would form part of the residue of the estate and belong to the residuary beneficiary.  When the revised draft Deed was circulated by the Public Trustee six days later, on 1 August 2017, Mr Butcher promptly forwarded it to Mr Beros.  As indicated earlier, Mr Beros instructed Mr Butcher that he did not accept the deletion of clause 12 and the amendment of clause 16 (subsequently clause 15), Mr Beros' instructions were conveyed by Ms Thompson to Mr Davies, and ultimately the revised draft Deed was further revised in terms acceptable to Mr Beros, who executed it.

1. It follows that the decision made by the Committee to dismiss complaint B3 under s 425(a) of the LP Act should be affirmed.

Complaint B4 ­ Preparing or causing to be prepared a draft letter to the Supreme Court on 4 May 2016 seeking that Mr Beros be excused from attending the next scheduled mediation in the Supreme Court proceedings

1. In our view, the Committee's decision to dismiss complaint B4 was not wrong or attended with sufficient doubt to justify the grant of leave. Rather, it was the correct decision, because there is no reasonable likelihood that Mr Butcher would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct in terms of complaint B4 if that matter were referred by the Committee to the Tribunal under s 428(1) of the LP Act. It was reasonable and appropriate for Mr Butcher to prepare a draft letter to the Supreme Court on 4 May 2016 seeking a direction that Mr Beros be excused from personal attendance at the next mediation and requesting Mr Beros' instructions to send the letter to the Court.

2. In both his letter dated 8 October 2019 to the Committee in relation to complaint B4 and in his submissions to the Tribunal,           Mr Butcher indicates that, at the first mediation in the Supreme Court proceedings on 12 April 2016, Registrar Boyle directed 'that Mr Beros attend the second mediation in person'.[51]  In his submissions, Mr Beros states that '[t]o the best of my recollection at the tail end of [the first mediation], the Registrar suggested that it was "desirable" that I attend the next mediation and that is the best that I can recall'.[52] However, Mr Beros did not attend the first mediation in person or (as he complains in terms of complaint B1) by telephone. Mr Beros also refers to the statement by Mr McCashney, who represented Marica Beros in the Supreme Court proceedings, in a letter dated 14 April 2016 to the representatives of the other parties in those proceedings, that 'Registrar Boyle expressed the opinion that [Mr Beros'] personal attendance at the next mediation was highly desirable',[53] and submits that '"[d]esirable" does not mean mandatory personal attendance'.[54]  However, in the letter dated 14 April 2016, Mr McCashney also said that 'Order 8 [made by Acting Principal Registrar Dixon on 16 February 2016] specifically required each party to attend mediation in person' (although he did not refer to Registrar Boyle having also made such a direction at the first mediation).  In the letter dated 14 April 2016, Mr McCashney also said the following: [55]

   If it is common ground between the parties that the existing Orders require [Mr Beros'] personal attendance at the next meeting, nothing further need to be done.  If that is not common ground, then we believe the matter should be brought back before Registrar Dixon so that that issue can be clarified and, if necessary, further Orders made.

   [51] Second respondent's submissions [15] and section 24 bundle of documents page 238 (in the letter dated 8 October 2019, Mr Butcher used the word 'next' rather than 'second' and did not expressly state 'in person', although clearly that is implicit).

   [52] Applicant's submissions page 11 (original emphasis).

   [53] Letter from Mr McCashney to the legal representatives of the other parties in the Supreme Court proceedings dated 14 April 2016 page 1 referred to in the applicant's bundle of documents 'Doleres Beros Index Numbers' No. 44 page 5.

   [54] Applicant's submissions page 11 (original emphasis).

   [55] Letter from Mr McCashney to the legal representatives of the other parties in the Supreme Court proceedings dated 14 April 2016 page 2.

3. There is no evidence that the matter was brought back before the Court by any of the parties to clarify the issue.  It appears, therefore, that it was 'common ground between the parties that the existing Orders require[d] [Mr Beros'] personal attendance at the next meeting'.

4. In an email dated 3 May 2016, Ms Catherine Sadleir, a legal officer with the Public Trustee, said that 'at the last mediation, Registrar C Boyle was strongly of the view that David Beros should attend the reconvened mediation'.[56]  Ms Sadleir did not refer to any direction or order for personal attendance.

   [56] Section 24 bundle of documents page 76.

5. However, on the totality of the evidence referred to at [61]-[63] above, we find on a balance of probabilities that the Supreme Court directed personal attendance by Mr Beros and the other parties at mediation in the Supreme Court proceedings. Mr Butcher's conduct was therefore reasonable and appropriate. Although, as Mr Beros points out, on 22 February 2016 he provided a certificate from his psychiatrist to the Supreme Court which stated that '[f]or medical reasons, Mr. David Beros is not to travel to Western Australia, for matters regarding his later father's will',[57] as Mr Butcher said in his letter dated 8 October 2019 to the Committee in relation to complaint B4, this certificate was 'very non­specific and by then somewhat out of date'.[58]  It was also reasonable and appropriate for Mr Butcher to seek Mr Beros' instructions as to whether to send the draft letter and to refrain from sending it when he was instructed by Mr Beros not to do so. 

   [57] Section 24 bundle of documents page 41 (as written).

   [58] Section 24 bundle of documents page 238.

6. It follows that leave to seek review of the Committee's decision to dismiss complaint B4 under s 425(a) of the LP Act should be refused.

Complaint B5 ­ Unreasonably delaying the resolution of the matter and increasing the legal expenses incurred by Mr Beros as a result of the conduct in complaints B1, B2 and B4

1. In our view, the Committee's decision to dismiss complaint B5 under s 425(a) of the LP Act was not wrong or attended with sufficient doubt to justify the grant of leave to seek review. Rather, it was the correct decision, because there is no reasonable likelihood that Mr Butcher would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct in terms of complaint B5 if that matter were referred by the Committee to the Tribunal under s 428(1) of the LP Act. As Mr Butcher submits, nothing in his conduct referred to in any of the complaints made by Mr Beros about him 'delayed the matter' or 'had any material effect on legal costs'.[59]

   [59] Second respondent's submissions [19] and [20].

2. Furthermore, contrary to Mr Beros' submissions, the documentary evidence shows that the Supreme Court proceedings and their ultimate resolution by entry into the Deed in September 2018 were conducted by the firm in a timely and appropriate manner, and that the fees charged by the firm (approximately $43,000 in total) appear reasonable in light of the complexity of the matter.  In this regard, we note that the matter involved Supreme Court litigation between five siblings, represented by six firms of solicitors (as Katie Beros was separately represented in her capacity as executor of the will of the deceased and in her capacity as a beneficiary under the will), was commenced by a plaintiff with a decision-making disability by his Next Friend the Public Trustee, and concerned an estate (principally) comprising six properties with a net value of more than $3.5 million.  The Supreme Court proceedings were resolved by settlement in terms of an executed Deed and consent orders within approximately one-and-a-half years of Mr Beros retaining the firm to act on his behalf.  We also note that although the Committee's Rapid Resolution Team advised Mr Beros on 4 July 2018 that he could apply to the Supreme Court to have his costs assessed and provided him with the relevant Practice Direction, which sets out the process and the forms required, Mr Beros did not apply for taxation of his costs.

3. Finally, we concur with the Committee's finding that, contrary to Mr Beros' 'general allegations that Mr Butcher did not act in his best interests', the documentary evidence before the Tribunal 'is consistent with Mr Butcher seeking to act in the complainant's best interests at all times in the course of the matter'.[60]

   [60] Section 24 bundle of documents page 11 [39].

4. It follows that leave to seek review of the Committee's decision to dismiss complaint B5 under s 425(a) of the LP Act should be refused.

Complaint T1 ­ Failing to notify Mr Beros that Ms Thompson was unable to attend the meeting on 25 July 2017 and causing or permitting Mr Butcher to attend in her absence without Mr Beros' prior knowledge and approval

1. In our view, there is no reasonable likelihood that Ms Thompson would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct in terms of complaint T1 if that matter were referred by the Committee to the Tribunal under s 428(1) of the LP Act. As indicated earlier, Ms Thompson had day to day conduct of Mr Beros' matter in relation to the Supreme Court proceedings. Ms Thompson was supposed to attend the meeting between the legal representatives of the parties in the Supreme Court proceedings on 25 July 2017, but was unable to do so, because she became aware, late in the afternoon on 24 July 2017, that her husband had an urgent medical appointment that she needed to attend with him on 25 July 2017. Ms Thompson therefore arranged for Mr Butcher, who, as indicated earlier, was the responsible supervising partner in relation to the matter, to attend the meeting in her place. It was reasonable and appropriate for Ms Thompson, faced with an urgent family responsibility, to arrange for Mr Butcher to attend the meeting. In addition to being the responsible supervising partner, Mr Butcher had sufficient knowledge of the matter and sufficient time to prepare for the meeting.

2. Furthermore, although we concur with the observation of the Committee that 'as a matter of courtesy, it would have been better if Ms Thompson had informed the complainant, prior to the [m]eeting, that she was unable to attend the [m]eeting and Mr Butcher would be representing him instead',[61] we accept Ms Thompson's submission that 'the [a]pplicant's prior knowledge and or approval for [Mr Butcher] to attend the [m]eeting was not necessary'.[62]

   [61] Section 24 bundle of documents page 12 [47].

   [62] Third respondent's submissions page 3 [3.1(d)].

3. It follows that the decision made by the Committee to dismiss complaint T1 under s 425(a) of the LP Act should be affirmed.

Complaint T2 ­ Sending an email to Mr Beros on 26 July 2017 outlining the matters discussed at the meeting on 25 July 2017 without referring to discussions at the meeting about amending the draft Deed to delete clause 12 and to amend clause 16 (subsequently clause 15) to state that all residuary rental income would form part of the residue of the estate

1. In our view, there is no reasonable likelihood that Ms Thompson would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct in terms of complaint T2 if that matter were referred by the Committee to the Tribunal under s 428(1) of the LP Act. In her email to Mr Beros on 26 July 2017, Ms Thompson briefly outlined her understanding of the key issues discussed at the meeting and conveyed the substance of most of what Mr Butcher informed her had been discussed at the meeting. As indicated earlier, importantly, Ms Thompson's email informed Mr Beros that 'the Public Trustee will update the Deed and circulate a copy for the parties to review'.[63]  Furthermore, as also indicated earlier, Ms Thompson was not aware at the time she wrote and sent the email on 26 July 2017 that the draft Deed would be amended to delete clause 12 and to amend clause 16 (subsequently clause 15) to state that all residuary rental income earned from the assets of the estate would form part of the residue of the estate and belong to the residuary beneficiary.

   [63] Section 24 bundle of documents page 105.

2. As indicated earlier, the revised draft Deed was circulated six days later, on 1 August 2017, and on 2 August 2017 Mr Beros conveyed his instructions in relation to the proposed deletion of clause 12 and proposed amendment of clause 16 (subsequently clause 15) of the draft Deed.  As also indicated earlier, the revised draft Deed was subsequently further revised in terms agreeable to Mr Beros, who executed it.

3. It follows that the decision made by the Committee to dismiss complaint T2 under s 425(a) of the LP Act should be affirmed.

Complaint T3 ­ Falsely stating in an email to Mr Beros at 5.36 pm on 2 October 2017 that the attached copy of the Deed executed by Marica Beros 'was provided to us a short time ago'

1. In our view, the Committee's decision to dismiss complaint T3 under s 425(a) of the LP Act was not wrong or attended with sufficient doubt to justify the grant of leave to seek review. Rather, it was the correct decision, because there is no reasonable likelihood that Ms Thompson would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct in terms of complaint T3 if that matter were referred by the Committee to the Tribunal under s 428(1) of the LP Act. It was reasonable (and certainly not false) to state in the email at 5.36 pm on (Monday) 2 October 2017 that the attached executed Deed 'was provided to us a short time ago', because it was provided to the firm at 11.35 am on the prior business day (Friday, 29 September 2017) by email sent by Mr McCashney to Mr Meysner (which was not copied to Ms Thompson or Mr Butcher), and was forwarded by Mr Meysner to Ms Thompson at 1.24 pm on 2 October 2017, as Mr Meysner said in the forwarding email to Ms Thompson that 'I cannot see an e-mail to you'.[64]  In the circumstances, it was reasonable (and certainly not false) for Ms Thompson to state that the executed Deed 'was provided to us a short time ago'.

   [64] Section 24 bundle of documents page 179.

2. It follows that leave to seek review of the Committee's decision to dismiss complaint T3 under s 425(a) of the LP Act should be refused.

Complaint T4 ­ Falsely stating in an email to Mr Beros dated 6 October 2017 that the Deed executed by Katie Beros had not been 'circulated' on the day it was received 'due to an administrative error'

1. In our view, the Committee's decision to dismiss complaint T4 under s 425(a) of the LP Act was not wrong or attended with sufficient doubt to justify the grant of leave to seek review. Rather, it was the correct decision, because there is no reasonable likelihood that Ms Thompson would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct in terms of complaint T4 if that matter were referred by the Committee to the Tribunal under s 428(1) of the LP Act. It was reasonable (and certainly not false) to characterise the reason the Deed executed by Katie Beros had not been 'circulated' on the day it was received as 'due to an administrative error'. Indeed, there were two 'administrative errors', neither of which were caused by Ms Thompson, for the failure to circulate the Deed executed by Katie Beros on the day it was received.

2. The first administrative error occurred when, at 2.52 pm on 2 October 2017, Mr Blatchford emailed the Deed executed by Katie Beros on 2 October 2017 to the legal representatives of the other parties in the Supreme Court proceedings, but, in the case of the firm, only sent it to Mr Butcher's email address and not (also) to Ms Thompson's email address.  The second administrative error occurred when Mr Butcher did not forward the email to Ms Thompson after it was received on 2 October 2017.

3. At 8.57 am on 5 October 2017, Ms Hannah Outtrim, a solicitor with HLB Lawyers, who represented Doleres Beros in the Supreme Court proceedings, emailed the legal representatives of the other parties (including both Ms Thompson and Mr Butcher), stating that 'I have received instruction from my Supervisor Henrik Bendtsen, to kindly [request] a copy of the fully executed Deed signed by Katie Beros, [be] sent to myself and to all parties'.[65]  At 11.01 am on 5 October 2017, Ms Thompson replied all to the email from Ms Outtrim sent earlier that day, referring to Ms Outtrim's email and stating that '[g]iven that all other parties signed the Deed last week, we also request that a copy of the Deed signed by Katie Beros is circulated as a matter of priority'.  Fifteen minutes later, Ms Sadleir emailed Ms Thompson and Ms Outtrim attaching the Deed executed by Katie Beros which, Ms Sadleir said in the email, 'was sent by Mr Blatchford to certain parties on 2 October 2017'.[66]

   [65] Section 24 bundle of documents page 182.

   [66] Section 24 bundle of documents page 183. 

4. In the circumstances, it was reasonable (and certainly not false) for Ms Thompson to characterise the reason the Deed executed by Katie Beros had not been 'circulated' on the day it was received (2 October 2017) as 'due to an administrative error'.  Furthermore, Ms Thompson's conduct in following up the Deed executed by Katie Beros was reasonable and appropriate.

5. It follows that leave to seek review of the Committee's decision to dismiss complaint T4 under s 425(a) of the LP Act should be refused.

Complaint about Mr Blatchford ­ '[U]nlawfully remov[ing]' pages 6 and 7 of Katie Beros' affidavit before providing it to Mr Butcher by email on 31 March 2016

1. On 30 March 2016, Mr Blatchford had a telephone conversation with Mr Butcher during which they agreed that it would be useful to meet, and a meeting was arranged for the following Tuesday, 5 April 2016, at Mr Butcher's office.  In an email sent by Mr Blatchford to      Mr Butcher at 3.37 pm on 30 March 2016, Mr Blatchford confirmed the scheduled meeting the following Tuesday and also said the following:[67]

   … You should have received a copy of the affidavit [Katie Beros] did swear in relation to the current assets and liabilities of the estate.  If not, please let me know and I will provide you with a copy.

   [67] Section 24 bundle of documents page 42.

2. At 11.47 pm on 31 March 2016, Mr Blatchford's secretary sent the following email dictated by Mr Blatchford to Mr Butcher:[68]

   [68] Section 24 bundle of documents pages 43-44 (original emphasis).

   From:

    Blatchfords Lawyers [mailto:[email protected]]

   
   Sent:

    31 March 2016 11:47

   
   To:

    Robert Butcher

   
   Subject:

    Estate Srecko Beros (deceased)

   Robert ­ copy of Katie's affidavit sworn in her capacity as the executor of the Will on 25 February 2016 attached.

   Regards

   Ian Blatchford
   Blatchfords
   Lawyers
   [email protected]
   

   Level 1, Irwin Chambers

   
   

   16 Irwin Street

   
   

   PERTH WA 6000

   
   

   Tel: [phone]

   
   

   Fax: [phone]

3. In his letter to the Committee dated 16 September 2019 in relation to Mr Beros' complaint about him, Mr Blatchford said the following:[69]

   The email to Mr Butcher of 31 March 2016 was dictated by me solely for the purpose of providing Mr Butcher with a completed [sic] copy of the affidavit.  This email was typed and sent by my secretary and it was she who attended to the attaching of the affidavit.  Neither she nor I was aware that pages 6 and 7 of the affidavit were not sent with that email until your contact with me last Thursday.

   [69] Section 24 bundle of documents page 229.

4. Similarly, Mr Blatchford said the following in his submissions to the Tribunal:[70]

   … I emailed [Mr Butcher] on 31 March [2016] at 11.47am with what I intended to be a full copy of the affidavit[.] …

   The email to Mr Butcher of 31 March 2016 (sent at 11.47am) was dictated by me solely for the purpose of providing Mr Butcher with a complete copy of the affidavit. …

   [70] Fourth respondent's submissions [6]-[7].

5. Mr Blatchford's secretary attached pages 1 to 5, but omitted pages        6 and 7, of Katie Beros' affidavit, when she sent the email dated 31 March 2016 to Mr Butcher.[71]  Paragraphs 3 and 4 of Katie Beros' affidavit (on page 2, which was included in the email sent by Mr Blatchford's secretary to Mr Butcher on 31 March 2016) state as follows:[72]

   3.Attached and marked with the letter "A" is a true and correct copy of the Rule 9B Statement as at 28 April 2015 (previously filed in this Honourable Court).

   4.Attached to this Affidavit and marked with the letter "B", is a true and correct copy of the Rule 9B Statement as at the date of this affidavit, which includes updated valuations for the assets in my Father's estate.

   [71] Fourth respondent's submissions [7].

   [72] Section 24 bundle of documents page 47.

1. Annexure 'A' to Katie Beros' affidavit comprises pages 3 to 5 of the affidavit.  Annexure 'B' to Katie Beros' affidavit comprises pages 6 and 7 of the affidavit.  It would have been obvious to Mr Butcher that Annexure 'B' to Katie Beros' affidavit, which was referred to at paragraph 4 of the affidavit as 'includ[ing] updated valuations for the assets in [the deceased's] estate', had been omitted from the attachment to the email dated 31 March 2016.  Indeed, in a letter by email dated 14 April 2016 to Murfett Legal, Mr Butcher requested, among other things, '[p]ages 6-7 of the affidavit of Katie Beros sworn 29 February 2016'.[73]

   [73] Section 24 bundle of documents page 56.

2. Mr Beros contends that Mr Blatchford 'wilfully remov[ed] pages 6 & 7 [from Katie Beros' affidavit], [and thereby] created a harmful inflated value impression of my properties which was important at that stage of the will matter'.[74]  Mr Beros contends that '[t]his had the practical effect of concealing the significant overall valuation drop of my properties by $20,000 !'.[75]

   [74] Section 24 bundle of documents page 242 and applicant's bundle of documents page 126.

   [75] Section 24 bundle of documents page 242 and applicant's bundle of documents page 126 (as written).

3. There is no evidence contradicting Mr Blatchford's statements that he intended to provide Mr Butcher with a complete copy of Katie Beros' affidavit when he dictated the email and arranged for his secretary to attach the affidavit on 31 March 2016.  Furthermore, as we have said, it would have been obvious to Mr Butcher that Attachment 'B' (comprising pages 6 and 7) to the affidavit had been omitted from the attachment.  Plainly, pages 6 and 7 of Katie Beros' affidavit were inadvertently omitted from the attachment emailed by Mr Blatchford's secretary to Mr Butcher on 31 March 2016.  Mr Beros' contentions that Mr Blatchford 'unlawfully' and 'wilfully' removed pages 6 and 7 from Katie Beros' affidavit before it was provided to Mr Butcher are utterly without foundation in the evidence before the Tribunal and his complaint about Mr Blatchford was appropriately characterised by the Committee as 'unreasonable'.

4. Finally, we note that, in his submissions to the Tribunal, Mr Beros points out an error and a further matter requiring qualification from Mr Blatchford to a statement in his (Mr Blatchford's) letter dated 16 September 2019 to the Committee in relation to Mr Beros' complaint about him.  First, Mr Beros points out - and Mr Blatchford acknowledges in his submissions - that Mr Blatchford was incorrect in his letter to the Committee when he said that Mr Beros participated in the meeting on 5 April 2016 between Mr Blatchford and Mr Butcher at Mr Butcher's office by telephone and that Katie Beros attended that meeting in person.  As Mr Blatchford recognises in his submissions to the Tribunal, the statement in his letter to the Committee 'to the effect that [Katie] Beros and [Mr Beros] attended the meeting on 5 April 2016 was incorrect'.[76]  Mr Blatchford clarified that Katie Beros and Mr Beros attended only a subsequent meeting on 26 May 2016 (Mr Beros by telephone) and that '[t]he error was mine, for which I apologise'.[77]  However, as Mr Blatchford also says in his submissions to the Tribunal, 'the question of which meeting was attended by [Mr Beros] and [Katie] Beros has no relevance to the [a]pplicant's complaint against me'.[78]

   [76] Fourth respondent's submissions [9.1].

   [77] Fourth respondent's submissions [9.1].

   [78] Fourth respondent's submissions [9.1].

5. The second matter pointed out by Mr Beros - and acknowledged by Mr Blatchford as requiring a qualification to be made to his letter to the Committee - is that Mr Butcher's letter by email on 14 April 2016 to Murfett Legal requesting, among other things, pages 6 and 7 of Katie Beros' affidavit, was copied to Mr Blatchford.  Mr Blatchford says in his submissions that a check of his firm's email records confirms the receipt of the letter by email at 4.52 pm on 15 April 2016, but adds that it 'appears that the letter was not downloaded for the file, although the covering email was' and 'I have no specific recollection of seeing it at all at that time or since, until I read the [a]pplicant's submissions', although he acknowledges that he could be 'incorrect about that given the passage of time'.[79]  As Mr Blatchford acknowledges, the fact that the letter by email dated 14 April 2016 from Mr Butcher was copied to, and received by, Mr Blatchford's firm (although it was not downloaded for the file) necessitates a qualification to the statement in his letter to the Committee on 16 September 2019 that '[n]either [his secretary] nor I was aware that pages 6 and 7 of the affidavit were not sent with that email until [the Committee's] contact with me last Thursday'.[80]  However, as Mr Blatchford states in his submissions to the Tribunal in relation to the copying of Mr Butcher's letter by email dated 14 April 2016 to his firm:[81]

   … None of this detracts from the fact that on 31 March 2016 I intended that Mr Butcher receive a complete copy of the affidavit and the fact that Mr Butcher did not receive pages 6 and 7 of that document was not intended by my secretary or myself.

   [79] Fourth respondent's submissions [9.2].

   [80] Section 24 bundle of documents page 229.

   [81] Fourth respondent's submissions [9.2].

6. As we said earlier, there is no evidence contradicting                   Mr Blatchford's statements that he intended to provide Mr Butcher with a complete copy of Katie Beros' affidavit.  As we also said earlier, it would have been obvious to Mr Butcher that Annexure 'B' to the affidavit (comprising pages 6 and 7) had been omitted from the attachment.  As we found earlier, plainly, those pages were inadvertently omitted from the attachment emailed by Mr Blatchford's secretary to Mr Butcher on 31 March 2016.

7. The Committee's decision to dismiss Mr Beros' complaint about Mr Blatchford under s 425(a) of the LP Act was not wrong or attended with sufficient doubt to justify the grant of leave to seek review. Rather, it was the correct decision, because there is no reasonable likelihood that Mr Blatchford would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct if Mr Beros' complaint about him were referred by the Committee to the Tribunal under s 428(1) of the LP Act. It follows that leave to seek review of the Committee's decision to dismiss Mr Beros' complaint about Mr Blatchford under s 425(a) of the LP Act should be refused.

Mr Beros' contention that the Committee was biased

1. In his submissions to the Tribunal in relation to his complaint about Mr Blatchford, Mr Beros contends that the Committee's failure to mention in its reasons for its decision 'the real date of the meeting' between Mr Butcher and Mr Blatchford at which Katie Beros and he (Mr Beros) attended (Mr Beros by telephone), namely 26 May 2016, rather than 5 April 2016, demonstrates that:[82]

   … This wilfully blind bias mentality of the [Committee] permeates their determination decisions through out [sic] to the other lawyers not surprisingly, and should all [sic] likewise all [sic] be replaced by a fresh original determination set down by the [Tribunal].

   [82] Applicant's submissions page 5.

2. Mr Beros' allegation of 'wilfully blind bias mentality' on the part of the Committee in its investigation of his complaints and decisions to dismiss each of his complaints under s 425(a) of the LP Act is utterly without foundation and merit. The correspondence between the Committee and Mr Beros in relation to his complaints shows that the Committee investigated each complaint properly, fairly and objectively and, as we have found, the Committee's decisions to dismiss each complaint, on the basis that there is no reasonable likelihood that the relevant practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct if the complaint were referred to it, was correct.

Conclusion

1. Leave to seek review of the decisions of the Committee to dismiss complaints B1, B2, B4 and B5 about Mr Butcher, complaints T3 and T4 about Ms Thompson and the complaint about Mr Blatchford, under s 425(a) of the LP Act, should be refused under s 435(2) of the LP Act, because each of those decisions was not wrong or attended with sufficient doubt to justify the grant of leave to seek review. Indeed, each of those decisions was correct, because there is no reasonable likelihood that the relevant practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct if any of those complaints were referred by the Committee to the Tribunal under s 428(1) of the LP Act.

2. Furthermore, the decisions made by the Committee to dismiss complaints B3 about Mr Butcher and T1 and T2 about Ms Thompson, under s 425(a) of the LP Act, should be affirmed under s 29(3)(a) of the SAT Act. This is because there is no reasonable likelihood that the relevant practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct if any of those complaints were referred by the Committee to the Tribunal under s 428(1) of the LP Act.

3. The 'correct and preferable decision at the time of the decision upon the review', under s 27(2) of the SAT Act, is to dismiss the application for review and to affirm, under s 29(3)(a) of the SAT Act, the Committee's decisions to dismiss complaints B3 about Mr Butcher and complaints T1 and T2 about Ms Thompson.

4. The Tribunal makes the following orders:

   1.The application for review is dismissed.

   2.Leave to seek review of the decisions made by the first respondent set out in its letter to the applicant dated 27 November 2019 to dismiss complaints B1, B2, B4 and B5 about the second respondent, complaints T3 and T4 about the third respondent and the complaint about the fourth respondent is refused.

   3.The decisions made by the first respondent set out in its letter to the applicant dated 27 November 2019 to dismiss complaint B3 about the second respondent and complaints T1 and T2 about the third respondent are affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

RH
Court Officer

30 JULY 2020