Chang v Legal Profession Complaints Committee - [2020] WASCA 140

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CHANG -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2020] WASCA 140
CORAM:   BUSS P
MURPHY JA

HEARD:   26 AUGUST 2020
DELIVERED          :   26 AUGUST 2020
PUBLISHED           :   27 AUGUST 2020
FILE NO/S:   CACV 109 of 2018
BETWEEN:   CHRISTINA MARIE CHANG
Appellant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
Respondent

ON APPEAL FROM:
Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL
Coram:   JUDGE T SHARP, DEPUTY PRESIDENT
Citation: LEGAL PROFESSION COMPLAINTS COMMITTEE and CHANG [2018] WASAT 121
File Number            :   VR 183 of 2016

Catchwords:

Practice and procedure - Application to adjourn an appeal - Where applications had been made to adduce additional evidence in appeal - Proposed cross‑examination in relation to additional evidence - Where appellant's senior counsel in Melbourne and unable to attend Perth for hearing due to COVID‑19 restrictions

Legislation:

Nil

Result:

Application for adjournment and related orders dismissed

Category: B

Representation:

Counsel:

Appellant	:	J Burnside QC
Respondent	:	P Cahill SC

Solicitors:

Appellant	:	In person
Respondent	:	Legal Profession Complaints Committee

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

JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [2020] WASCA 38
Westgem Investments Pty Ltd v Commonwealth Bank of Australia Ltd [No 4] [2018] WASC 130

REASONS OF THE COURT:

On 26 August 2020, we heard an application by the appellant to adjourn this appeal listed for hearing on 2 ‑ 3 September 2020, and for related orders. We dismissed the application and said we would provide written reasons. These are our reasons.
There has been a history of serious delays in the prosecution of the appeal, as well as significant delays in the conduct of the primary proceedings. The most recent delay has occurred because when this matter was last heard in this court on 9 September 2019, following the conclusion of oral argument by senior counsel for the appellant (Mr Burnside QC), senior counsel for the appellant applied to further amend the grounds of appeal. Certain programming orders were made in consequence of that application, the implementation of which was also delayed. Ultimately, by 7 February 2020, the following materials had been filed:
1.An application by the appellant seeking leave to amend the appellant's case, together with submissions in support, filed 1 October 2019.
2.A minute of proposed substituted appellant's case filed by the appellant on 11 October 2019.
3.A minute of substituted respondent's answer filed by the respondent (the LPCC) on 8 November 2019.
4.The LPCC's submissions on the application by the appellant to amend her appellant's case filed 8 November 2019.
5.An application by the LPCC filed 8 November 2019 seeking leave to adduce additional evidence in the form of an affidavit by S R Merrick, affirmed 8 November 2019.
6.The appellant's submissions 'concerning additional evidence' filed 29 November 2019.
7.An application by the appellant filed 7 February 2020, seeking leave to adduce additional evidence, together with an affidavit of the appellant filed 7 February 2020.
On 25 August 2020, the appellant applied to vacate the hearing dates on 2 ‑ 3 September 2020 with a view to having a directions hearing fixed at some future date, for directions to be given for the further hearing of the appeal. The appellant filed an affidavit sworn 25 August 2020, in which she stated, 'I am not asking for an adjournment indefinitely but to the first quarter of 2021 or thereabouts'. The appellant also annexed certain correspondence from the LPCC agreeing to an adjournment, although in a context in which the LPCC foreshadowed other proposed specific arrangements for the hearing of the appeal.
The effect of the appellant's evidence was that Mr Burnside QC is in Melbourne and cannot leave that State to attend the hearing on 2 ‑ 3 September 2020 on account of COVID‑19 restrictions. The appellant also stated that she has 'evinced an intention to re‑engage' a junior counsel in Melbourne whom she had previously retained in the primary proceedings.
The appellant's evidence and submissions were to the effect that (1) her senior counsel cannot leave Melbourne with current COVID‑19 restrictions, (2) the appellant requires for cross‑examination Mr Merrick, the solicitor responsible for the conduct of the primary proceedings (and this appeal) for the LPCC, (3) it would be unfair to have Mr Merrick cross‑examined by Mr Burnside QC via video‑link,[1] (4) there would also be an unfairness in the conduct of the appeal if the LPCC's counsel were in court cross‑examining the appellant, whereas Mr Burnside QC would not be in court when he was cross‑examining Mr Merrick, (5) the appellant does not have an instructing solicitor and would have difficulty communicating with Mr Burnside QC for the purposes of conducting the hearing if she were in Perth in court and he were in Melbourne, particularly given the number of documents relevant to the appeal, (6) some of the documents of relevance to the appeal have not been reproduced in the appeal books and Mr Burnside QC could experience difficulty in examining or cross‑examining on a document that is not in the appeal books, (7) the appellant has a number of chronic health issues and Mr Burnside QC could not 'make an informed assessment of how [the appellant is] coping with the rigours of cross‑examination and the need for breaks in giving [her] oral testimony', and (8) given the two hour time difference, Mr Burnside QC would be prejudiced because the hearing would effectively run later into the day for Mr Burnside QC.[2]
[1] Reference was made to Westgem Investments Pty Ltd v Commonwealth Bank of Australia Ltd [No 4] [2018] WASC 130.
[2] As to this last point, Mr Burnside QC, who appeared for the appellant on the application, indicated that this would not be a particular difficulty.
In our view, the application for an adjournment had no merit, and no purpose would be served in making the related orders.
First, the court has satisfactorily dealt with hearings by video‑link since restrictions associated with COVID‑19 have been necessary. Such restrictions do not, generally speaking, provide a proper basis for an adjournment.[3]
[3] JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [2020] WASCA 38.
Secondly, the appellant's affidavit annexed correspondence from the LPCC inquiring, in effect, why Mr Merrick was required for cross‑examination given that his affidavit merely annexed contemporaneous correspondence. There was no response to that inquiry. At the hearing of this application, Mr Burnside QC indicated that although he had not addressed the scope and content of the cross‑examination at this stage, the cross‑examination of Mr Merrick would likely be directed to the LPCC's pursuit of the complaint of professional misconduct in light of the delays that had occurred since the underlying events in question. Mr Burnside QC did not, however, elaborate upon how that area of cross‑examination would be relevant to the appellant's grounds of appeal. Mr Burnside QC said that Mr Merrick's credit would be in issue. The current grounds of appeal assert an error of jurisdiction and errors of law. Ground 1 alleges that the Tribunal lacked power to make the orders it purported to make on 13 September 2017. Ground 2 alleges that the Tribunal erred in law in concluding that it had no power to proceed to consider afresh the matter referred to it by the LPCC. Ground 3 alleges that the Tribunal erred in law by concluding that it did not have power to set aside or vary orders previously made by the Tribunal. It is not apparent how any cross‑examination of Mr Merrick is relevant to any of the current grounds of appeal. None of the grounds call into question the LPCC's pursuit of the complaint of professional misconduct in light of the delays that have occurred.
Thirdly, and in any event, we are not satisfied that cross‑examination could not take place effectively and fairly by video‑link. The Westgem Investments case to which Mr Burnside QC referred is distinguishable. In that case, the relevant witness was in Melbourne and was unable to come to Perth due to ill health. His evidence concerned events and issues central to the litigation (a trial of the whole dispute - not an appeal, albeit one with possible additional evidence), and his cross‑examination was foreshadowed to take up to two days, and perhaps even longer. Moreover, Westgem Investments was a decision made in a context in which the administration of justice did not have to accommodate the exigencies associated with COVID‑19 restrictions.
Fourthly, any asserted injustice flowing from counsel for the LPCC being in court whilst Mr Burnside QC was not in court for the purposes of cross‑examination, may be addressed by an order that counsel for the LPCC should also appear by video‑link. Fifthly, we were not satisfied that any injustice would arise, in terms of communication issues, by reason of the fact that the appellant would be in court and Mr Burnside QC would be in Melbourne. The appellant would be permitted to use a mobile telephone to text Mr Burnside QC with instructions, and if any particular difficulty arose in the course of the hearing, the court would be prepared to allow a short adjournment for the appellant to confer by telephone with Mr Burnside QC. The same observations apply to the junior counsel in Melbourne whom the appellant apparently proposes to retain, and in relation to communications between Mr Merrick and counsel for the LPCC.
Sixthly, any concern or difficulty with managing documents relevant to cross‑examination could be avoided by orders that the parties file and serve a book of documents that they wish to put to witnesses that are not already in the Green Appeal Books. Seventhly, any necessity for a break in the appellant's cross‑examination arising from any chronic health issue would be able to be dealt with adequately by Mr Burnside QC's observation of her on the video‑link, or by the court's observation of her in court, or by the appellant raising the matter herself. Finally, the court could accommodate any concerns about the hearing running later on Melbourne time by starting earlier in Perth.
For these reasons, we dismissed the appellant's application and made the following orders:
1.The appellant's application in the appeal filed 25 August 2020 is dismissed.
2.The appellant's counsel and any solicitors (except the appellant) and the respondent's counsel and any solicitors (except Mr Merrick) are to appear by video‑link at the hearing of the appeal.
3.The appellant and Mr Merrick are to give their evidence in the appeal in person at the court.
4.Each of the appellant and Mr Merrick may have a mobile telephone and other electronic devices with them in court for the purpose of communicating at appropriate times and as necessary with her or his counsel.
5.At the hearing of the appeal, the court will allow short adjournments at appropriate times if and to the extent reasonably necessary to enable the appellant to communication with her counsel and Mr Merrick to communicate with the respondent's counsel.
6.By 4.00 pm (Perth time) on 31 August 2020, the appellant is to file four copies with the court and serve one copy on the respondent of any documents not in the appeal books which the appellant's counsel may wish to put to the appellant or Mr Merrick during their evidence in the appeal.
7.By 4.00 pm (Perth time) on 31 August 2020, the respondent is to file four copies with the court and serve one copy on the appellant of any documents not in the appeal books which the respondent's counsel may wish to put to the appellant or Mr Merrick during their evidence in the appeal.
8.Unless the court orders otherwise, the sitting times for the hearing of the appeal on 2 and 3 September 2020 will be:
(a)9.15 am (Perth time) to 11.15 am (Perth time);
(b)12 noon (Perth time) to 1.30 pm (Perth time); and
(c)2.15 pm (Perth time) to 3.15 pm (Perth time).
9.At 2.15 pm (Perth time) on 31 August 2020, a test call will be made between the court's video‑link facilities and the video‑link facilities to be used by the appellant's counsel and the respondent's counsel at the hearing of the appeal and, for that purpose, the parties are to contact and make arrangements for the test call with Buss P's associate.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
Associate to the Honourable Justice Murphy
27 AUGUST 2020