Bucknell and Legal Profession Complaints Committee and Anor - [2011] WASAT 181

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION: BUCKNELL and LEGAL PROFESSION COMPLAINTS COMMITTEE & ANOR [2011] WASAT 181

MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 11 NOVEMBER 2011

FILE NO/S: VR 48 of 2011

BETWEEN: PETER ALLAN BUCKNELL
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE & ANOR
Respondents

Catchwords:

Legal practitioners Leave to apply for review of decision by Legal Profession Complaints Committee to dismiss complaint

Legislation:

Legal Profession Act 2008 (WA), s 415(1)(b), s 415(2)(b), s 435(2), s 435(2)(a)
State Administrative Tribunal Act 2004 (WA), s 24
Workers' Compensation and Injury Management Act 1981 (WA)

Result:

The application for leave is dismissed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondents : N/A

Solicitors:

Applicant: Self-represented
Respondents : Law Complaints Officer

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

Wilson v Metaxis (1989) WAR 285
Winzer and McCusker [2011] WASAT 46

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

On 11 March 2011 the Legal Profession Complaints Committee, the first respondent, dismissed a complaint made on 30 October 2010 by the applicant, Mr Peter Bucknell, against Mr Bucknell's former solicitor, Mr Tony Separovic, the second respondent (Complaint). The substance of the Complaint is that:
•without Mr Bucknell's knowledge or consent, the second respondent entered into an agreement with third parties, against whom Mr Bucknell had commenced proceedings and against whom Mr Bucknell may have commenced further proceedings, to compromise the proceedings and proposed proceedings; and
•the second respondent failed to comply with Mr Bucknell’s instructions in compromising Mr Bucknell’s claims.
The first respondent dismissed the Complaint upon the basis that it was misconceived and lacking in substance on the information and evidence put before it (s 415(1)(b) of the Legal Profession Act 2008 (WA)). In addition, the first respondent found the complaint to be unreasonable.
In so far as Mr Bucknell alleged in the Complaint that the second respondent had failed to comply with his instructions in compromising Mr Bucknell’s claims, Mr Bucknell sought to re-agitate an earlier complaint made to the first respondent, that the second respondent had not complied with his instructions, which earlier complaint had been dismissed by the first respondent on 16 April 2011. The first respondent dismissed this aspect of the Complaint upon the basis that the issue had been the subject of the earlier complaint which had been dismissed (s 415(2)(b) of the Legal Profession Act 2008).
Mr Bucknell made his application to the Tribunal dated 14 March 2011 (and received by the Tribunal on 22 March 2011) for leave to review the decision of the first respondent made on 11 March 2011. Mr Bucknell has referred to the date of the decision in respect of which he seeks leave to review as 22 February 2011. However, it is clear from the documents put before the Tribunal that it is Mr Bucknell's intention to seek a review of the final decision of the first respondent dated 11 March 2011.
The Tribunal has concluded that, upon the information before the first respondent, the first respondent's decision to dismiss the Complaint was not wrong or sufficiently doubtful to warrant the grant of leave to review pursuant to s 435(2) of the Legal Profession Act 2008 (WA). Consequently, Mr Bucknell's application for leave to review the first respondent's decision made on 11 March 2011, pursuant to s 435(2) of the Legal Profession Act 2008 (WA), is refused.

The application for leave

Mr Bucknell's application to the Tribunal for leave to review the first respondent's decision made on 11 March 2011 was commenced on 14 March 2011 and was accompanied by a number of documents, most of which are referred to in the s 24 bundle of documents (s 24 bundle) filed by the first respondent on 20 May 2011. The application was listed for a directions hearing on 3 May 2011 at which time the Tribunal ordered Mr Bucknell to serve a copy of the application upon the first and second respondents. The directions hearing was adjourned to 17 May 2011. On 17 May 2011 the Tribunal ordered that:
a)by 20 May 2011 the first respondent file a bundle of documents pursuant to s 24 of the State Administrative Tribunal Act 2004 (WA) (SAT Act);
b)by 28 June 2011 Mr Bucknell file and serve any submissions setting out why he said leave to review the first respondent's decision should be granted; and
c)the question of leave would be determined upon the papers.
The first respondent filed a bundle of documents pursuant to s 24 of the SAT Act on 20 May 2011. On 20 May 2011 the Tribunal received a letter from Mr Bucknell:
… to justify my request for you[r] dept to 'Hear' my claim .against [sic] Separovic & LPCC [sic] … I respectfully ask that the SAT hear this matter without further messing about.
No further submissions or documents were filed by Mr Bucknell until 3 November 2011 when the Tribunal received a letter also dated 3 November 2011 from Mr Bucknell who stated that he wrote '[I]n response to a phone call from [the Tribunal's] office … . It appears the documents I posted earlier have been misplaced or lost'. Mr Bucknell enclosed the following documents:
•letter from the second respondent to Mr Bucknell dated 13 September 2007 (also at page 55 of the s 54 bundle of documents filed by the first respondent);
•page 1 of the second respondent's letter to Mr Bucknell dated 2 November 2007 (also at page 20 of the s 34 bundle of documents filed by the first respondent);
•letter from the solicitors for Catalyst to the Registry of the Dispute Resolution Directorate of WorkCover dated 9 Mach 2007;
•a memorandum by T Martens dated 26 October 2007;
•Trust transaction statement issued by the second respondent to Mr Bucknell dated 23 February 2011;
•page 2 of document headed 'Agreement' signed variously by the second respondent on 24 December 2008, the 'solicitor for the employer' on 5 January 2009 and the Director on 14 January 2009 (also at page 67 of the s 24 bundle of documents filed by the first respondent);
•the second respondent's client instruction form (5 pages) signed by Mr Bucknell noting facsimile transmission from the second respondent to Mr Bucknell at 9.27 WAST on Tuesday, 23 December 2008 and facsimile transmission from Mr Bucknell to the second respondent at 12.39 EDST (page 1 of which is also at page 66 of the s 24 bundle of documents filed by the first respondent);
•document headed 'Disability details' signed on behalf of Mr Bucknell on 16 September 2005;
•page 3 of the second respondent's letter to Mr Bucknell dated 2 November 2008 (also at page 22 of the s 24 bundle of documents filed by the first respondent);
•letter from the second respondent to Mr Bucknell dated 24 December 2008 (also at pages 9 11 of the s 24 bundle of documents filed by the first respondent);
•letter from the second respondent to Mr Bucknell dated 6 November 2009 (also at page 6 of the s 24 bundle of documents filed by the first respondent);
•the documents at 1, 7, 9, 10 and 11 were attached to Mr Bucknell's application made to the Tribunal dated 14 March 2011.

Background to the Complaint

On 11 January 2005 Mr Bucknell allegedly sustained an injury (injury) whilst collecting household items on behalf of The Salvation Army (Western Australian) Property Trust (Salvation Army). Mr Bucknell was involved in this conduct on that day by reason of a labour hire agreement between the Salvation Army and Catalyst Recruitment Services Pty Ltd (Catalyst).
Mr Bucknell alleged an entitlement against both the Salvation Army and Catalyst arising under the Workers' Compensation and Injury Management Act 1981 (WA) (Workers' Compensation Act). Mr Bucknell also maintained that he was entitled to commence proceedings in the District Court of Western Australia against the Salvation Army and Catalyst for loss and damage arising from the injury. Mr Bucknell instructed the second respondent to investigate his claims and advise and represent him in respect of any claims arising from his injury.
Mr Bucknell had been in receipt of weekly entitlements made pursuant to the Workers' Compensation Act. These weekly entitlements were suspended and then terminated at some time in or about September 2007. The circumstances surrounding the suspension and termination of Mr Bucknell's weekly entitlements were the subject of complaints against the practitioners representing the Salvation Army and Catalyst which we will refer to in these reasons as LPCC 399/09. All of the complaints made by Mr Bucknell in LPCC 399/09 were dismissed by the first respondent. The letter dated 9 March 2007 from the solicitors for Catalyst to the Registry of the Dispute Resolution Directorate of WorkCover concerns the application that was made to suspend Mr Bucknell's weekly entitlements. The letter provided to the Tribunal by Mr Bucknell on 3 November 2011 was not put to the first respondent in the complaint which we will refer to in these reasons as LPCC 477/10 and further it is not relevant to the complaint made by Mr Bucknell in LPCC 477/10 or the first respondent's decision therein.
By September 2007, the solicitors for the Salvation Army and Catalyst had begun to consider a compromise of all of Mr Bucknell's claims against them. On 4 September 2007 an offer was made by Catalyst's solicitor to compromise all of the claims Mr Bucknell alleged against both the Salvation Army and Catalyst. That offer was rejected on 15 October 2007 by the first respondent, on his client's instructions. It appears that notwithstanding Mr Bucknell's rejection of the offer to compromise all of Mr Bucknell's claims on 15 October 2007, discussions continued between the solicitors for the Salvation Army, Catalyst and the second respondent.
Shortly prior to 1 November 2007, and on instructions from Mr Bucknell, the second respondent made an offer to settle Mr Bucknell's claim in the sum of $60,000 plus a $15,000 contribution towards Mr Bucknell's costs. That offer was rejected. By this stage Mr Bucknell informed the second respondent that he wanted to compromise his claims. However, the parties appear to have reached an impasse in that, the Salvation Army and Catalyst indicated that they would not increase their offer from $50,000 plus a contribution towards Mr Bucknell's legal costs (which would likely be no greater than $10,000 according to the second respondent) and Mr Bucknell desiring a greater sum.
Mr Bucknell's common law claims against the Salvation Army and Catalyst were complicated by another matter: the second respondent's failure to commence proceedings in the District Court of Western Australia to recover damages at common law against the Salvation Army and Catalyst arising from Mr Bucknell's injury and upon the basis that Mr Bucknell has sustained a 16% 29% degree of disability. On 26 September 2007 WorkCover sent a letter to the second respondent notifying Mr Bucknell that he had 14 days within which to elect to commence proceedings at common law alleging that the injury had resulted in him suffering a permanent disability in the range of a 16% 29% degree of disability. The second respondent did not see the WorkCover letter until the time period had expired, as a consequence of an oversight of a staff member in the second respondent's employ. The memorandum by T Martens provided to the Tribunal by Mr Bucknell on 3 November 2011 concerns the issue of whether the second respondent's office actually received the WorkCover letter notifying Mr Bucknell, through, the second respondent of the time period in which he was to make an election commenced proceedings at common law. That memorandum was not put to the first respondent in LPCC 477/10. In any event, the memorandum is not relevant to the complaint made by Mr Bucknell in LPCC 477/10 or the first respondent's decision therein.
The second respondent informed Mr Bucknell that the latter had a claim against the second respondent at common law arising from the second respondent's own negligence in failing to act upon the WorkCover letter of 26 September 2007. The second respondent also informed Mr Bucknell that, whilst the second respondent's records indicated that the second respondent had undertaken work and provided professional services to Mr Bucknell to the value of approximately $20,000, the second respondent proposed to waive all of his fees in order to mitigate any loss that Mr Bucknell had suffered as a consequence of the second respondent's own negligence.
It appears that by 1 November 2007 the Salvation Army and Catalyst were still prepared to compromise all of Mr Bucknell's claims for the sum of $50,000 plus costs of $10,000.
The second respondent noted in his memorandum to file dated 1 November 2007 (pages 17 - 19 of the s 24 bundle) and his letter to Mr Bucknell dated 2 November 2007 (pages 20 - 22 of the s 24 bundle) that, in his opinion, the Salvation Army and Catalyst were not prepared to move from their offer of $60,000 inclusive of costs, and that if a compromise was reached upon their terms, there would be no indemnity for any monies owed to Centrelink, Medicare or any unpaid medical treatment providers. That memorandum and letter record that notwithstanding earlier instructions, Mr Bucknell had instructed the second respondent to accept the offer to compromise his claims for the sum of $60,000 inclusive of costs.
It appears that by 2 November 2007 the second respondent had made the offer to the solicitors for the Salvation Army and Catalyst to compromise all of Mr Bucknell's claims for the sum of $60,000 inclusive of costs and it was orally accepted. It was agreed that the finalisation of the compromise would be by way of a deed of compromise and a consent dismissal of District Court proceedings. Catalyst's solicitors were to prepare the documentation.
On 4 November 2007 the second respondent received a facsimile from Mr Bucknell concerning his intention to withdraw his instruction to agree to the above mentioned compromise. That document has not been put before the Tribunal and was not put before the first respondent. On 5 November 2007 the second respondent made a file note of the relevant communications between himself and Mr Bucknell and then wrote to Mr Bucknell on that day about the change in instructions (pages 43 - 45 of the s 24 bundle).
It appears from those documents that on 5 November 2007 Mr Bucknell telephoned the second respondent and informed him that he did not wish to compromise his claim for $60,000 inclusive of costs. Instead, he instructed the second respondent to proceed with the District Court writ seeking damages at common law against the Salvation Army and Catalyst and to assert that he had suffered a 30% degree of disability or more flowing from the injury. The second respondent's memorandum to file dated 5 November 2007 states:
He is also however making it clear today that what he means by $60,000 net is that it is net of legal costs; Centrelink; Medicare and medical expenses.
…
I said to the client that I now know quite clearly what he means by $60,000 net.
To the extent that the second respondent had misunderstood Mr Bucknell's instructions in early November 2007, it appears that after 5 November 2007 he was aware that Mr Bucknell wanted to compromise his claims against the Salvation Army and Catalyst in such a way that he would receive $60,000 with no further liability to any third parties.
The second respondent's letter to Mr Bucknell dated 5 November 2007 records those recent events and notes:
•the second respondent's views on the likely response of the solicitors for the Salvation Army and Catalyst to Mr Bucknell's withdrawal from the earlier agreement to settle;
•the second respondent's advice concerning the risks associated with establishing that Mr Bucknell did in fact sustain a 30% degree of disability as a consequence of the injury; and
•that Mr Bucknell's instructions were to settle for $60,000 net of costs and net of any liability to Centrelink, any liability to Medicare and any liabilities to any medical treatment providers for outstanding accounts.
The second respondent attached to the letter of 5 November 2007 an instruction sheet for Mr Bucknell to execute and return. This enabled the second respondent to withdraw Mr Bucknell's agreement to compromise his claims for the payment of $60,000 inclusive of costs and make a fresh offer to the Salvation Army and Catalyst to compromise those same claims for the sum of $60,000 net of legal costs, Centrelink liabilities, Medicare liabilities and other third-party liabilities. Paragraph 1 of that instruction sheet provides:
Notwithstanding my previous instructions to proceed with settlement for $50,000 plus a contribution of $10,000 towards costs[,] I now instruct my solicitors to notify the insurers for the defendants that I do not intend to proceed with settlement on that basis.
On 9 November 2007 Mr Bucknell responded and provided the second respondent with instructions in writing (page 47 of the s 24 bundle). However, the written instructions were not in the form proposed by the second respondent. Rather, instruction 1 provides:
Notwithstanding my previous instructions to accept $50,000 totally free of all debts [connected to, or arising from the injury] to myself to clear the matter, I note this Offer has been refused. (author's emphasis)
Instruction 3 provides:
My instructions are that I will not settle my claim now or in the future for a figure less than $60,000 net of any contributions towards legal costs; refund to Centrelink; refund to Medicare and any out standing [sic] treatment expanses [sic], carer owed $3[,]000, cost of travel to Medical professionals, etc.
Thereafter, the second respondent informed the solicitors for the Salvation Army and Catalyst that Mr Bucknell had withdrawn his agreement to compromise his claims for $60,000 inclusive of costs.
Ultimately, nothing turned upon Mr Bucknell's withdrawal from the agreement to compromise his claims for $60,000. Although the solicitors for the Salvation Army and Catalyst maintained that Mr Bucknell had comprised all of his claims for the sum of $60,000 inclusive of costs in early November 2007, they continued to negotiate further with the second respondent to finally and certainly compromise Mr Bucknell's claims against their clients.
It appears that the second respondent continued to discuss settlement with the solicitors for the Salvation Army and Catalyst for a year. The second respondent recorded in his letter to Mr Bucknell dated 6 November 2008 that by 3 November 2008 he had received instructions from Mr Bucknell to offer to compromise his claims against the Salvation Army and Catalyst for the sum of $90,000 inclusive of costs and indemnities and had communicated that offer to the solicitors for the Salvation Army and Catalyst (second respondent's letter dated 6 November 2008, page 64 of the s 24 bundle). Presumably that offer was rejected as it is common cause that no such compromise resulted.
The second respondent's letter dated 24 December 2008 summarised a number of communications between himself and Mr Bucknell on the one hand, and himself and the solicitors for the Salvation Army and/or Catalyst on the other (pages 10 - 11 of the s 24 bundle). That letter records that on 22 December 2008 the solicitors for the Salvation Army contacted the second respondent and invited Mr Bucknell to compromise his claims against the Salvation Army and Catalyst for the sum of $60,000 inclusive of costs. In that letter to Mr Bucknell, the second respondent notes that as far as the solicitor for the Salvation Army was concerned, this offer 'was previously agreed to'.

The second respondent records in his letter dated 24 December 2008 the general course of negotiations that followed, and that Mr Bucknell instructed the second respondent to accept an offer made by the Salvation Army and Catalyst to compromise his claims against them for the sum of $65,000.
A compromise was achieved by an agreement registered at WorkCover, noting that Mr Bucknell had suffered a 30% degree of disability, and a consent judgment was filed in the District Court of Western Australia. The final compromise achieved an uplift of $5,000 from the offer that had been made by the Salvation Army and Catalyst in November 2007.
As stated, Mr Bucknell made a complaint to the first respondent against the second respondent and alleged that the second respondent failed to follow Mr Bucknell's instructions to settle his claim for $60,000 plus medical and travel expenses, legal costs and an indemnity for all monies that may be owing to Medicare and Centrelink. That complaint was the subject of LPCC 399/09 and was dismissed by the first respondent on 16 April 2010. The full five pages of the instruction form signed by Mr Bucknell on 23 December 2008 and sent to the second respondent on 23 December 2008 by facsimile (provided by Mr Bucknell to the Tribunal on 3 November 2011) goes to the allegations made by Mr Bucknell on LPCC 399/09. The complete instruction dated 23 December 2008 is not relevant to the complaint made by Mr Bucknell in LPCC 477/10 or the first respondent's decision therein.
Mr Bucknell did not seek leave to review that decision. Mr Bucknell does not now seek an enlargement of time within which to make application for leave to review that decision.

Mr Bucknell's Complaint

By letter dated 30 October 2010, Mr Bucknell made a 'fresh' allegation against the second respondent in the Complaint, stating:
… a deal was done, in my Workcover [sic] claim, with out [sic] my knowledge or consent. (original emphasis)
In support of his assertion that the second respondent was involved in a 'deal' concerning his claims under the Workers' Compensation Act without his knowledge or consent, Mr Bucknell refers to the second respondent's letter to him dated 24 December 2008 and specifically to the words 'which as far as they were concerned was previously agreed to'. In the course of advancing his fresh allegations in the Complaint against the second respondent, Mr Bucknell has reagitated his earlier complaint against the second respondent in LPCC 399/09 and referred to above.
On 10 February 2011, the first respondent's senior legal officer wrote to Mr Bucknell informing him that in her view Mr Bucknell's complaint lacked substance and was misconceived (pages 50 - 51 of the s 24 bundle). The first respondent's senior legal officer requested that Mr Bucknell provide her with any further information or evidence which supported his allegation of a 'secret deal' within 14 days. In addition, the first respondent's senior legal officer wrote to Mr Bucknell on 22 February 2011 and provided him with a copy of the first respondent's standard 'Fact Sheet'. She indicated that the fact sheet was sent in response to a conversation she had had with Mr Bucknell 'concerning negligence'.
Mr Bucknell produced a number of documents to the first respondent including:
a)a handwritten letter received by the first respondent on 17 February 2011;
b)a typed letter bearing the handwritten date of 27 February 2011, received by the first respondent on 2 March 2011, together with annotated copies of the second respondent's letters dated 13 September 2007, 15 October 2007 and one page of a letter written by Ms Michelle Reynolds, Acting Chief Executive Officer, WorkCover);
c)a typed letter dated 7 March 2011, again including annotated copies of the second respondent's letters dated 13 September 2007, 15 October 2007 and one page of a letter written by Ms Michelle Reynolds, Acting Chief Executive Officer, WorkCover;
d)a copy of the second respondent's letter dated 6 November 2008;
e)a copy of a memorandum dated 2 November 2007;
f)a copy of a signed client instruction; and
g)a copy of page 2 of an agreement registered at WorkCover.

The Legal Profession Complaints Committee's decision

The first respondent dismissed Mr Bucknell's Complaint against the second respondent and gave short reasons for its decision in its letter to the applicant dated 11 March 2011. The letter was written by the first respondent's delegate, Ms G Roberts. The letter does not form part of the s 24 bundle but there is no doubt that it comprises the first respondent's decision to dismiss Mr Bucknell's Complaint. The first respondent's delegate recorded in the decision dated 11 March 2011 that she had had regard to all of the documents referred to in the s 24 bundle which included all of the documents referred to by Mr Bucknell, except the letter dated 22 February 2011. In the letter dated 11 March 2011 the first respondent’s delegate states:
In this matter I have found your complaint that the practitioner entered into a previous agreement with the insurer without your knowledge to be misconceived and lacking in substance pursuant to Section 415(1)(b) of the Legal Profession Act 2008. I have also found that that complaint is unreasonable and requires no further investigation. Further, I have found your further complaint regarding the manner in which the practitioner handled your claim has been the subject of a previous complaint that has been dismissed and therefore must be dismissed under Section 415(2)(b) of the Act. Accordingly, I have dismissed your complaints.
(Tribunal's emphasis)

The test for the grant of leave

By reason of the fact that the first respondent has found that the Complaint is unreasonable and so noted that finding in its reasons, any application to this Tribunal for review of that decision must first be the subject of a grant of leave by this Tribunal (s 435(2)(a) of the LP Act).
The test for the grant of leave for the purposes of s 435(2) of the LP Act is whether the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave and, in addition, whether substantial injustice would be done by leaving the decision unreversed (see: Wilson v Metaxis (1989) WAR 285; Winzer and McCusker [2011] WASAT 46.

Should leave be granted?

Insofar as the Complaint against the second respondent seeks to reagitate the substance of the complaint made to the first respondent in LPCC 399/09 which was dismissed by the first respondent on 16 April 2010, there is no evidence or information before the Tribunal to support a conclusion that the decision to dismiss the Complaint, or that part of the Complaint, pursuant to s 415(2)(b) of the LP Act, was wrong or attended with sufficient doubt to justify a grant of leave. The first respondent was compelled to dismiss this aspect of the Complaint. Section 415(2)(b) of the LP Act provides:
The Complaints Committee must dismiss a complaint if
…
(b)the conduct complained about has been the subject of a previous complaint that has been dismissed[.] (Tribunal emphasis)
As to the allegation within the Complaint that the second respondent was party to an agreement concerning Mr Bucknell's claims against the Salvation Army and Catalyst, which agreement was not made with Mr Bucknell's knowledge or consent, the Tribunal holds that there is no information or evidence before the Tribunal to establish that the first respondent's decision dismissing this aspect of the Complaint on 11 March 2011 was wrong or attended with sufficient doubt to justify the grant of leave pursuant to the power conferred by s 435(2) of the LP Act. Section 415(1)(b) of the LP Act provides:
The Complaints Committee may dismiss a complaint if
…
(b)the complaint is vexatious, misconceived, frivolous or lacking in substance[.]
Read in the context of the second respondent’s:
a)memorandum to file dated 1 November 2007;
b)letter to Mr Bucknell dated 2 November 2007;
c)memorandum to file dated 5 November 2007;
d)letter to Mr Bucknell dated 5 November 2007; and
e)letter to Mr Bucknell dated 6 November 2008,
it was open to the first respondent to conclude that the reference to the words 'which as far as they were concerned was previously agreed to' in the letter dated 24 December 2008 was a reference to the apparent compromise of Mr Bucknell’s claims against the Salvation Army and Catalyst, reached on or about 2 November 2007. Further, in the context of those same memoranda and letters, it was open to the first respondent to conclude that Mr Bucknell was aware of the circumstances of the entry into the apparent compromise of Mr Bucknell's claims against the Salvation Army and Catalyst, reached on or about 2 November 2007.
There was no other evidence or information before the first respondent of any other agreement or 'deal' made between the second respondent and the solicitors for the Salvation Army and Catalyst concerning Mr Bucknell or at all.
It was entirely open to the first respondent to conclude that:
•in the absence of any evidence or information suggestive of any other agreement between the second respondent and the solicitors for the Salvation Army and Catalyst concerning Mr Bucknell or any other matter; and
•in light of the conclusion that Mr Bucknell was aware of the circumstances surrounding the apparent compromise of Mr Bucknell’s claims against the Salvation Army and Catalyst reached on or about 2 November,
the allegation of a secret 'deal' between the second respondent and the solicitors for the Salvation Army and Catalyst contained in the Complaint is without any foundation.
For these reasons leave is refused and the application for leave to review the decision of the first respondent dated 11 March 2011 is dismissed.

Mr Bucknell's ancillary and other arguments

Mr Bucknell claims that, as he received 'less than $50,000', ($48,267.24 as represented in the second respondent's trust transaction statement dated 11 November 2005 provided to the Tribunal by Mr Bucknell on 3 November 2011) from the proceeds of the compromise of his claims against the Salvation Army and Catalyst, he has lost the opportunity to achieve a better outcome in terms of the net proceeds of the compromise. Mr Bucknell refers to a letter from the second respondent dated 13 September 2007 to him, wherein the second respondent suggested that, at trial, the Court's assessment for his loss and damage might be between $100,000 and $150,000. Mr Bucknell's belief that his claims would have resulted in an order that the Salvation Army and/or Catalyst pay him loss and damage in the range of $100,000 - $150,000 and his reliance upon the second respondent's statement in the letter dated 13 September 2007, appears to be unwavering. It remains so, notwithstanding the statements to Mr Bucknell by the second respondent:
a)in his letter of 2 November 2007 that the earlier offer by the Salvation Army and Catalyst to pay $50,000 was not unreasonable given 'quite a number of factors' which relate to issues of potential contributory negligence, Mr Bucknell's age, the difficulties in establishing a claim for loss of income, the medical evidence establishing that Mr Bucknell was fit for restricted capacity work, and the issue of causation and the general uncertainties of litigation; and
b)in his letter of 5 November 2007 that there were evidential risks in proceeding to trial in the District Court of Western Australia upon the basis of a claim of 30% disability resulting from the injury.
Mr Bucknell also asserts in his letter to the Tribunal received 20 May 2011 that:
…
If I receive $50,000 in cash I will withdraw all legal action against Separovic,S&Ass [sic]. I also will withdraw my claim with LPCC that both Separovic and SRB conspired to defraud me. I expect Separovic to receive a serious reprimand as part of this deal which is only available till [sic] [J]une 30 2011.
This submission is misconceived as it is not the function of the complaint process provided by the LP Act or the review process to restore Mr Bucknell's claims against the Salvation Army and Catalyst or compensate him for the loss of those claims.
The Tribunal concludes that there is no merit in any of the matters raised by Mr Bucknell in his letter to the Tribunal received 20 May 2011.

Order

1.The application for leave pursuant to s 435(2) of the Legal Profession Act 2008 (WA) is dismissed.

I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE T SHARP, DEPUTY PRESIDENT