CHEN and LAW COMPLAINTS OFFICER - [2022] WASAT 26

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION:   CHEN and LAW COMPLAINTS OFFICER [2022] WASAT 26
MEMBER:   PRESIDENT PRITCHARD
MR J O'SULLIVAN, SENIOR MEMBER
DR E MARILLIER, MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   12 APRIL 2022
FILE NO/S:   VR 19 of 2021
BETWEEN:   XI CHEN
Applicant
AND
LAW COMPLAINTS OFFICER AS THE DELEGATE OF THE LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
JOHN HOCKLEY
Second Respondent

Catchwords:

Legal Profession Summary dismissal of complaint that practitioner engaged in conduct warranting disciplinary action Whether preliminary investigation gave rise to reasonable cause to suspect that practitioner guilty of unsatisfactory professional conduct or professional misconduct Whether complaint misconceived or lacking in substance Whether grounds to dismiss complaint without completing investigation Review of decision to dismiss complaint Whether leave required for application for review

Legislation:

Administration Act 1903 (WA), s 17A
Family Provision Act 1972 (WA)
Legal Profession Act 2008 (WA), s 402, s 403, s 411, s 412, s 413, s 415(1)(a), s 415(1)(b), s 415(3), s 421(1), s 421(2), s 424(1), s 425, s 425(a), s 426, s 428, s 435, s 435(1)(a), s 435(2), s 435(2)(a), s 573
Non-Contentious Probate Rules 1967 (WA), r 9
State Administrative Tribunal Act 2004 (WA), s 17(1), s 18, s 27, s 27(2), s 29, s 29(1), s 29(3)

Result:

Decision of the Law Complaints Officer to dismiss the complaint is affirmed

Category: B

Representation:

Counsel:

Applicant	:	N/A
First Respondent	:	N/A
Second Respondent	:	N/A

Solicitors:

Applicant	:	N/A
First Respondent	:	N/A
Second Respondent	:	N/A

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

Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2018] WASCA 32
George v Rockett (1990) 170 CLR 104
L v P[2022] WASCA 40
Laurent and Commissioner of Police [2009] WASAT 254
Lawson and Legal Profession Complaints Committee [2019] WASAT 36
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331
State Electricity Commission of Victoria v Rabel [1998] 1 VR 102

REASONS FOR DECISION OF THE TRIBUNAL

On 7 October 2020, Ms Xi Chen lodged a complaint with the Legal Profession Complaints Committee (LPCC) in relation to the conduct of a legal practitioner, Dr John Hockley (Complaint).
Dr Hockley, a barrister, had been instructed by Ms Chen's solicitor, Mr Gang Wang, of Herald Legal, to appear on Ms Chen's behalf in a mediation (Mediation). The Mediation concerned proceedings commenced in the Supreme Court (Proceedings) in relation to a dispute arising out of the intestate estate (Estate) of Ms Chen's husband, Mr Klaus Muenkel (deceased). The proceedings concerned the question of whether a property (Property), registered in the joint names of the deceased and his first wife, Ms Ursula Muenkel (also known as Ursula HumckeRobson), but the certificate of title for which was in Ms Chen's possession, formed part of the Estate.[1] Prior to the commencement of the Proceedings, Ms Chen applied for the grant of letters of administration of the Estate, as sole administrator.[2] She later amended that application to seek the appointment of both her and Mr Jan Muenkel, the deceased's son, as the joint administrators of the Estate.[3] Ms Ursula Muenkel and Mr Jan Muenkel were represented by Mr Michael Taylor, of Taylor & Taylor Lawyers.
[1] Legal Profession Complaints Committee Section 24 Bundle of Documents (First Respondent's Bundle), page 46.
[2] First Respondent's Bundle, page 54.
[3] First Respondent's Bundle, page 54.
The Mediation was held on 8 September 2020. The parties were able to compromise not only the Proceedings, but also reached agreement about the administration of the Estate, and resolved a foreshadowed claim against the Estate by Ms Chen, and one of her children, under the Family Provision Act 1972 (WA).
At the Mediation, the parties drafted and executed a Deed of Family Arrangement (Deed) which set out the terms on which these matters were resolved.
By an email dated 30 September 2020 (30 September email), Dr Hockley wrote to Taylor & Taylor. We set out the relevant terms of the 30 September email below.
In the Complaint,[4] Ms Chen alleged that in the 30 September email Dr Hockley sought 'to change the mediation agreement that is already in effect and being implemented', and that he did so without her consent and when he was no longer acting for her.
[4] First Respondent's Bundle, pages 58.
On 25 February 2021, Mr Daily, the Law Complaints Officer, advised Ms Chen that he had considered the Complaint, determined that no further investigation was required, and dismissed the Complaint pursuant to s 415(1)(b) and s 415(3) of the Legal Profession Act 2008 (WA) (LPAct) (Decision). Section 415(1)(b) of the LP Act permits the Legal Profession Complaints Committee (LPCC) to dismiss a complaint on the basis that it is vexatious, misconceived, frivolous or lacking in substance. Section 415(3) of the LP Act permits the LPCC to dismiss a complaint without completing an investigation if, having considered the complaint, it forms the view that the complaint requires no further investigation.
Ms Chen has applied to the Tribunal for a review of the Decision, pursuant to s 435 of the LP Act (Review Application).
If the LPCC specifically finds that a complaint is trivial, unreasonable, vexatious or frivolous, a complainant requires the grant of leave from the Tribunal to seek a review of the LPCC's decision.[5] As the Law Complaints Officer did not make a specific finding of that kind, we concluded that Ms Chen did not require leave to commence the Review Application.
[5] LP Act, s 435(2).
For the reasons which follow, we are of the view that the correct and preferable decision is that no further investigation of the Complaint, in its entirety, is required, and that, at least in part, the Complaint is both misconceived and lacking in substance. The Complaint should therefore be dismissed. Accordingly, the Decision should be affirmed.

Factual Background

The relevant factual background was set out in various documents the parties provided to the LPCC. The contents of those documents do not appear to be contentious.
Some time prior to 30 July 2020, Dr Hockley was approached by Herald Legal to provide some advice in relation to the Proceedings, and in relation to a possible claim under the Family Provision Act 1972 (WA). Dr Hockley provided an opinion on 30 July 2020, together with his fee agreement and a schedule of his fees.[6]
[6] First Respondent's Bundle, pages 5162 and 6468.
There is no documentary evidence to suggest that the fee agreement was signed and returned. We note that Dr Hockley advised the LPCC that the fee agreement was not signed and returned.[7] He told the LPCC that he relied upon the statement in his fee agreement which provided that '[t]his offer may be accepted in writing by signing below and returning the original to me or by your conduct in making a request after receipt of this offer for me to undertake work.'[8]
[7] First Respondent's Bundle, page 63.
[8] First Respondent's Bundle, page 65.
It appears that Herald Legal then requested Dr Hockley to appear at the Mediation because by emails on 1 September 2020, Dr Hockley advised Herald Legal that he would be willing to represent Ms Chen at the Mediation and conferences beforehand and advised his fee for doing so.[9]
[9] Xi Chen Section 34 Bundle of Documents (Applicant's Bundle), pages 2021.
On 3 September 2020, Herald Legal sent Dr Hockley various documents in preparation for the Mediation.[10]
[10] Applicant's Bundle, page 62; First Respondent's Bundle, pages 4041.
As we have already observed, the agreement the parties reached at the Mediation was set out in the Deed. Relevantly for present purposes, the Deed provided that:
•the Property was agreed to pass by survivorship to Ms Ursula Muenkel, Ms Chen would remove a caveat she had lodged over the Property and would deliver up the certificate of title for the Property within 7 days (cl 1 and 2);
•the parties agreed that the deceased died intestate and agreed that the Estate would be administered according to the terms of the Deed (cl 3);
•a lump sum from the Estate would be held in a trust pursuant to s 17A of the Administration Act 1903 (WA) for the education and advancement of Ms Chen's daughter (s 17A trust). The trust was to be administered by Ms Chen and an independent accountant, as joint trustees, or by the Public Trustee. Ms Chen was to propose the name of an accountant to act as one of the trustees, and the nominee was to be approved by Mr Jan Muenkel (cl 4);
•the remainder of the Estate would be divided equally between Mr Jan Muenkel and Ms Chen, subject to the other terms of the Deed (cl 5);
•Ms Chen and Mr Muenkel agreed 'to appoint and pay one half each of the costs of appointment for the Grant of Letters of Administration to the Public Trustee to administer the Estate in accordance with the terms of this Deed' (cl 8).
According to Ms Chen, immediately following the Mediation, she paid Dr Hockley's legal fees for appearing at the Mediation. She claimed that 'then his short legal relationship with me ended'.[11] After 8 September 2020, Herald Legal did not give Dr Hockley any instructions to further deal with Ms Chen's matter.[12]
[11] First Respondent's Bundle, page 5.
[12] First Respondent's Bundle, page 26.
On 9 September 2020, Mr Taylor sent Dr Hockley counterpart copies of the Deed.[13] Dr Hockley forwarded copies of those documents to Ms Chen on the same day.[14]
[13] First Respondent's Bundle, page 94.
[14] Applicant's Further Supplementary Bundle of Documents (Applicant's Further Supplementary Bundle), page 1.
By an email dated 9 September 2020, Dr Hockley advised Mr Wang that at the Mediation, the parties had managed to settle 'the Will and the Family Provision Actions'[15] by which he appears to have meant that the parties settled all disputes between them in relation to the administration of the Estate (including the Proceedings and the foreshadowed claims under the Family Provision Act 1972 (WA)).
[15] First Respondent's Bundle, page 94.
By an email dated 18 September 2020,[16] Ms Chen wrote to Taylor & Taylor to advise that she had 'appointed an independent accountant as per deed requirement. Please find attached engagement agreement so we can move on to the next step.' This appears to have constituted her nomination of an accountant suitable for appointment as a trustee of the s 17A trust.
[16] Applicant's Bundle, page 51.
On 21 September 2020, Ms Chen provided another solicitor, Mr Chan, of Chan Galic Barristers & Solicitors, with a copy of the 'Mediation' (by which she appears to have been referring to the Deed).[17] On 29 September 2020, Ms Chen engaged Chan Galic as her lawyers.[18]
[17] Applicant's Further Supplementary Bundle, page 1.
[18] Applicant's Further Supplementary Bundle, pages 24.
By an email dated 24 September 2020, Ms Chen requested that Dr Hockley provide her with an invoice for his fee for the Mediation (which she had paid).[19]
[19] Applicant's Bundle, page 46.
By an email dated 25 September 2020, Dr Hockley wrote to Ms Chen to provide that invoice and a receipt for the payment of those fees.[20] He also advised Ms Chen that he had commenced preparing a deed for the s 17A trust. In addition, Dr Hockley advised that he had found an accountant who would be suitable to act as the trustee of that trust. Dr Hockley ended his email by noting 'I look forward to hearing from you as to whether you wish to retain my services until this case concludes with payment made in accordance with orders agreed to at Mediation'.[21]
[20] First Respondent's Bundle, page 96.
[21] Applicant's Bundle, page 47.
By an email dated 28 September 2020, Ms Chen wrote to Dr Hockley and requested details as to how to proceed in relation to the accountant Dr Hockley had suggested as a trustee of the s 17A trust.[22]
[22] Applicant's Bundle, page 48.
By an email dated 28 September 2020, Dr Hockley responded to Ms Chen's email setting out some information in relation to the appointment of the accountant, and advising that he was able to draft the trust deed for the s 17A trust. Finally, Dr Hockley asked '[h]ave you or Herald Legal, Mr Wang in Sydney had any correspondence from the other side?'[23]
[23] Applicant's Bundle, page 49.
By an email dated 28 September 2020, Ms Chen responded to Dr Hockley's email and asked '[h]ow much is your fee?'[24]
[24] Applicant's Bundle, page 50.
Dr Hockley sent the 30 September email to Mr Taylor of Taylor & Taylor.[25] The email was titled 'Re: Settlement of Actions at Mediation'. As the terms of the 30 September email are the basis for the Complaint, it is appropriate to set out the relevant parts of that email in full:
I am writing to ask if you could send a letter to myself and my instructor, Mr Wang at Herald Legal setting out what you need us to do in regard to the settlement.
I note that it was agreed that [the lump sum] was to be held on trust for [Ms Chen's daughter]. At the mediation I proposed holding that on a s17A Trust … Could you please set out in your letter who your client will agree to as the Trustees of this Fund. At the mediation there was opposition to Lucy Chen (Xi-Chen) Muenkel and her accountant being the trustees.
Can you please confirm that your client, Mr Jan Muenkel and our client will act as Joint Trustees of the intestate estate of the deceased.
Are you going to prepare the Application for Letters of Administration?
...
I look forward to hearing from you as does my instructing solicitor, Mr Wang of Herald Legal.
[25] First Respondent's Bundle, page 87.
Also on 30 September 2020, Dr Hockley sent an email to Mr Wang at Herald Legal,[26] in which he advised that:
[26] Applicant's Bundle, page 61; First Respondent's Bundle, page 98.
There is still a lot of work to do to put into effect the good result obtained at Mediation in this matter.
I have been in communication with the solicitor for the other side.
This work will take some time and considerable skill to keep the Mediation agreement in place.
…
I … can draft a trust that will meet the regulatory requirements and those of the other side.
The other side also insist on a trust and trustees that work …
…
I am prepared to continue to act but I cannot do so without being paid.
The client refused on the day of the Mediation to pay the fees for my Opinion.
I continued to act for her as I thought it unethical to leave her at that point.
As my instructing solicitor you are responsible for my fees.
Can you assure me that I will be paid for my opinion and for any future work.
…
I look forward to hearing from you in regard to the above matters.
On 30 September 2020, Mr Taylor wrote to Dr Hockley in response to the 30 September email. Mr Taylor advised that the parties had commenced performing some of their obligations under the Deed, including that Ms Chen had delivered the title for the Property, that she was progressing the removal of her caveat over the Property and that she had put forward the name of an accountant to act, with her, as joint trustees of the s 17A trust. As for the other matters referred to in the 30 September email, Mr Taylor advised that 'I believe that my clients are generally in agreement with your proposals but will need to take instructions to confirm the position'.[27]
[27] First Respondent's Bundle, page 27.
It appears that at about the same time, Mr Taylor also sent an email to Mr Wang addressing the same issues. (A copy of that email was not in evidence before the Tribunal.) However, by an email dated 2 October 2020,[28] Ms Chen wrote to Chan Galic, referring to an email from Mr Taylor to Mr Wang, and requested that Mr Chan advise Mr Taylor
that I don't agree joint administer with Jan. I don't agree [my daughter's lump sum] give to public trustee management. I require the distribution of the estate to be carried out in accordance with the mediation agreement … All modifications are impossible. Please contact with Michael Taylor.
[28] Applicant's Supplementary Bundle of Documents (Applicant's Supplementary Bundle), page 31.
By letter dated 2 October 2020, Mr Chan wrote to Mr Taylor and advised that Chan Galic was now acting for Ms Chen.[29] Mr Chan further advised that the caveat had been withdrawn; Ms Chen 'wants the estate to be carried out in accordance with the [Deed] as agreed and request[s] to know how the administration is going on'; and that the proposed accountant had agreed to be the trustee for the s 17A trust, and Mr Chan asked if there were any issues in relation to that proposal.
[29] Applicant's Supplementary Bundle, pages 32 and 38.
Later on the same day, Mr Chan sent an email to Ms Chen,[30] to advise that he had written to Mr Taylor. He requested that Ms Chen inform her former lawyers that Chan Galic was now acting for her, and that she ask them to refer all correspondence to Chan Galic. Ms Chen subsequently requested that Chan Galic contact her former lawyers instead.[31]
[30] Applicant's Supplementary Bundle, page 31.
[31] Applicant's Supplementary Bundle, page 33.
By an email dated 2 October 2020, Mr Taylor wrote to Chan Galic advising that 'we have had some limited correspondence with your client's Counsel on this matter I have enclosed the email correspondence so you can see the current state of affairs'.[32] He advised that he would shortly respond to Chan Galic's letter of 2 October 2020. He also requested that Chan Galic 'confirm that you will lodge a notice of change of solicitors with the Supreme Court'.[33] (Chan Galic filed that notice of change of solicitors on 7 October 2020.[34])
[32] Applicant's Supplementary Bundle, pages 3839.
[33] Applicant's Supplementary Bundle, page 39.
[34] Applicant's Supplementary Bundle, page 55.
Chan Galic appear to have forwarded this email from Taylor & Taylor to Ms Chen.[35] It appears that that is how she became aware that Dr Hockley sent the 30 September email to Taylor & Taylor.
[35] Applicant's Supplementary Bundle, page 38.
Later on 2 October 2020, Mr Taylor wrote to Chan Galic, and substantively responded to their letter of 2 October 2020 and to the 30 September email.[36] In that letter, Mr Taylor confirmed that Mr Jan Muenkel would act as joint executor of the Estate with Ms Chen; advised that his clients were likely to agree to the accountant proposed by Ms Chen to act as a joint trustee of the s 17A trust, but that they wished to speak with the nominee first; confirmed that he had received the certificate of title for the Property, and had been advised that Ms Chen's application to remove the caveat over the Property had been lodged at Landgate; and confirmed a number of other aspects of compliance with the parties' obligations under the Deed.
[36] Applicant's Supplementary Bundle, pages 3537; First Respondent's Bundle, page 31.
On 4 October 2020, Ms Chen wrote to Chan Galic raising a number of queries in relation to Mr Taylor's correspondence of 2 October 2020.[37] She also enquired about the email from Dr Hockley to which Mr Taylor referred. As for Mr Taylor's confirmation that Mr Jan Muenkel would act as joint executor of the Estate with her, Ms Chen advised
I never agree Mr Jan Muenkel and me all together administration of the deceased estate. I agree public trustee do of the deceased estate according to the Mediation book. … I think they still want to make trouble to me. … Please tell them stop and I agree public trustee will administration of the deceased estate.[38]
[37] Applicant's Supplementary Bundle, page 44.
[38] Applicant's Supplementary Bundle, pages 4445.
On 4 October 2020, Chan Galic responded to Ms Chen's email.[39] They advised that:
Michael Taylor is merely replying to a request that was sent by Dr Hockley. It seems strange that he would write to Michael Taylor and made the suggestions. Perhaps, you gave the instructions to your previous lawyer in the eastern states (Herald Legal). It would be very unusual for a barrister to act without instructions. … Please advise if you gave Herald Legal any instructions that you would agree to a joint administration of the estate as we will then need to write to Michael Taylor to the contrary.
[39] Applicant's Supplementary Bundle, page 44.

On 5 October 2020, Ms Chen requested Chan Galic's assistance to write a letter of complaint to Dr Hockley, because she alleged that Dr Hockley and Mr Taylor had 'attempt[ed] to tamper with the legally valid mediation book' (that is, the Deed).[40]
[40] Applicant's Supplementary Bundle, page 46.
By an email dated 5 October, Chan Galic advised that such serious allegations could not be substantiated until Ms Chen confirmed that Herald Legal did not give Dr Hockley instructions to send the 30 September email.[41]
[41] Applicant's Supplementary Bundle, page 46.
By an email dated 6 October 2020, Ms Chen wrote to Dr Hockley setting out her concerns about the 30 September email.[42] She referred to the fact that Mr Wang 'nearly has stopped working for me' and referred to her 'current lawyer, Mr Chan'.[43] She alleged that if Mr Wang was involved, then Dr Hockley, Mr Wang and Mr Taylor had colluded to 'tamper with my already effective and legally protected mediation'.[44]
[42] First Respondent's Bundle, pages 8384.
[43] First Respondent's Bundle, page 83.
[44] First Respondent's Bundle, page 83.
Dr Hockley responded by an email dated 7 October 2020.[45] In that email, Dr Hockley advised that Ms Chen's email of 6 October 2020 was the first time that he had been informed that Ms Chen had changed lawyers from Herald Legal to Chan Galic. He advised that :
I was engaged by Herald Legal and as they have now ceased acting for you, it is appropriate that I do the same'. He advised that Ms Chen's new solicitors should carefully read the Deed to see what was agreed 'as to who should be the Administrators … of the … Estate.[46]
[45] First Respondent's Bundle, page 85.
[46] First Respondent's Bundle, page 85.
On 7 October 2020, Chan Galic wrote to Taylor & Taylor in response to their letter of 2 October 2020.[47] In relation to administration of the Estate, they noted that by cl 8 of the Deed, the parties had agreed that they would share the costs of the application for the grant of letters of administration to appoint the Public Trustee to administer the Estate, and that Ms Chen's instructions were that cl 8 of the Deed 'should be adhered to with the Public Trustee appointed to administer the estate'.[48]
[47] Applicant's Supplementary Bundle, pages 52 and 53.
[48] Applicant's Supplementary Bundle, page 51.
It appears that Mr Taylor and Mr Chan spoke by telephone, later that day, about the contents of that letter.[49]
[49] Applicant's Supplementary Bundle, page 57.
By an email dated 12 October 2020, Taylor & Taylor forwarded to Chan Galic a draft letter to the Public Trustee for their comments or approval.[50] The letter requested that the Public Trustee advise if he was willing to act as executor of the Estate and to administer the Estate in accordance with the Deed, and requested an estimate for his costs of doing so.[51]
[50] Applicant's Supplementary Bundle, page 57.
[51] Applicant's Supplementary Bundle, page 57-60.
On 14 October 2020, Chan Galic forwarded that letter to Ms Chen for her comments.[52] They noted that 'the contents of the letter are pursuant to the [Deed] to appoint the Public Trustee to manage the estate'.[53]
[52] Applicant's Supplementary Bundle, page 57.
[53] Applicant's Supplementary Bundle, page 57.
On 16 October 2020, Chan Galic forwarded to Ms Chen a draft response to Taylor & Taylor, together with a draft amended letter to the Public Trustee, and requested that she advise if she required any comments to be made.[54] The draft amended letter requested that the Public Trustee advise if he was willing to act as the executor of the Estate and to administer the Estate in accordance with the Deed, and requested an estimate of his costs for doing so.[55]
[54] Applicant's Supplementary Bundle, page 61.
[55] Applicant's Supplementary Bundle, page 64-66.
On 16 October 2020, Ms Chen advised Chan Galic that she rejected the draft letter provided by Taylor & Taylor. Notwithstanding that the draft letter expressly requested that the Public Trustee administer the Estate, Ms Chen instructed Chan Galic to draft a letter to the Public Trustee that was consistent with the Deed.[56]
[56] Applicant's Supplementary Bundle, pages 71-72.
After receiving Ms Chen's comments on the draft letter to the Public Trustee,[57] on 21 October 2020, Chan Galic wrote to Taylor & Taylor enclosing an amended draft letter to the Public Trustee.[58] The amended draft letter enquired whether the Public Trustee was willing to act as executor of the Estate and to administer the Estate pursuant to the terms of the Deed, and if so, requested an estimate of the costs likely to be incurred in doing so.[59]
[57] Applicant's Supplementary Bundle, pages 78-91 and 95.
[58] Applicant's Supplementary Bundle, page 94.
[59] Applicant's Supplementary Bundle, pages 92-93.
On 23 October 2020, Taylor & Taylor sent a letter to the Public Trustee in the same terms as the draft letter provided by Chan Galic.[60]
[60] Applicant's Supplementary Bundle, pages 101103.
On 29 October 2020, the Public Trustee's Office informed Taylor & Taylor that the Public Trustee had declined the request to administer the Estate.[61]
[61] Applicant's Supplementary Bundle, page 97.
By emails dated 6 November 2020, and 9 November 2020, Chan Galic wrote to Ms Chen setting out various alternative courses of action, in light of the Public Trustee's decision not to accept the request to administer the Estate.[62]
[62] Applicant's Supplementary Bundle, page 98.
On 16 November 2020, Taylor & Taylor requested that Chan Galic provide an indication of Ms Chen's instructions as to her proposal for the administration of the Estate.[63]
[63] Applicant's Supplementary Bundle, page 107.
On 19 November 2020, Ms Chen advised Chan Galic it was to cease acting on her behalf and informed Taylor & Taylor that she was selfrepresented.[64]
[64] Applicant's Supplementary Bundle, page 118.
Although not included in the documents provided, it is apparent[65] that on 24 November 2020, Ms Chen delivered a letter dated 23 November 2020, and accompanying documents, to the Public Trustee requesting that the Public Trustee reconsider his decision not to administer the Estate.
[65] Applicant's Supplementary Bundle, page 118.
By letter dated 15 December 2020, the Public Trustee declined to do so.[66]
[66] Applicant's Supplementary Bundle, pages 118-119.
By an email dated 10 December 2020, Taylor & Taylor wrote to Ms Chen outlining various options for the administration of the Estate, including that Ms Chen and Mr Muenkel jointly administer the Estate, or that a Court order be sought appointing the Public Trustee, notwithstanding that he had declined to administer the Estate, or that the Court be asked to make an alternative appointment.[67]
[67] Applicant's Supplementary Bundle, pages 120-121.
Taylor & Taylor[68] and Mr Jan Muenkel himself[69] subsequently emailed Ms Chen, seeking a response as to her proposal for the administration of the Estate.
[68] Applicant's Supplementary Bundle, page 124.
[69] Applicant's Supplementary Bundle, pages 127-130.
On 26 and 28 May 2021 and again on 28 June 2021, Taylor & Taylor wrote to Ms Chen seeking her views as to the administration of the Estate, outlining a proposal for the appointment of an independent administrator, and advising her that if an arrangement could not be agreed, the matter would need to return to the Court to seek orders for the administration of the Estate.[70]
[70] Applicant's Supplementary Bundle, pages 131-142.
The bundles of documents filed by the parties for the purposes of the Review Application did not contain any documents indicating whether Ms Chen responded to the latter correspondence, or indicating how the administration of the Estate was resolved.
The Complaint
In summary, in the Complaint, Ms Chen contended that:
a)Dr Hockley sent the 30 September email without being instructed to do so and at a time when he was no longer retained to act on her behalf;
b)in the 30 September email, Dr Hockley attempted to change the 'mediation agreement' (that is, the Deed) that was already in effect and being implemented, and that he did so without any authority; and
c)his conduct constituted a 'malicious attempt to tamper with [the Deed]' and was 'deceitful behaviour [which had] deeply hurt me and my kids'.
Ms Chen sought compensation 'for her injured spirit and property' and a public apology from Dr Hockley.

The Decision

The Complaint was initially assessed by the Rapid Resolution Team (RRT) of the LPCC. The RRT conducted some preliminary investigations and obtained documents relevant to the Complaint from the parties.
By letter dated 2 February 2021,[71] a legal officer in the RRT advised Ms Chen of the information he had obtained in relation to the Complaint, and of the preliminary views he had reached. In short, his preliminary views were that:
•the 30 September email was not malicious, and did not tamper with the Deed, but rather was intended to prompt the progression and resolution of the matter, and in the context of ensuring compliance with the Deed;
•at the time when Dr Hockley sent the 30 September email, he was not aware that his instructing solicitor's retainer had been terminated, and when he subsequently became aware of that fact, he immediately confirmed that he would cease acting for Ms Chen; and
•the 30 September email did 'not enliven any [disciplinary] conduct issues' and there was no conduct issue that required investigation.[72]
[71] First Respondent's Bundle, page 103.
[72] First Respondent's Bundle, page 106.
By an email dated 8 February 2021, Ms Chen rejected that view, maintained that Dr Hockley's behaviour 'has actually violated my rights' and requested an identification of the legal grounds why the Complaint was said not to require further action.[73]
[73] First Respondent's Bundle, page 107.
The Complaint was then referred to the Law Complaints Officer. The Law Complaints Officer then made the Decision. Relevantly, the Decision was in the following terms:
After careful consideration of the material provided in support of your concerns and your email of 8 February 2021, and for the reasons set out in our letter dated 2 February 2021, I consider that no further investigation is required and so dismiss this complaint under sections 415(1)(b) and 415(3) of the [LP Act].
We note that the Law Complaints Officer expressed the Decision as his own, and signed the Decision letter in his own right, rather than on behalf of the LPCC.
When Ms Chen made the Review Application, she named the LPCC as the respondent. In the course of the Tribunal's consideration of the Decision, however, it became apparent that the Decision was not in fact made by the LPCC, but rather was made by the Law Complaints Officer himself. The LPCC subsequently confirmed that the Decision was made by the Law Complaints Officer as the delegate of the LPCC.
Under s 573 of the LP Act, the LPCC may delegate any power or duty of the LPCC to the Law Complaints Officer, other than the power of the LPCC under s 426 of the LP Act.
A decisionmaker exercising decision-making authority under a delegation should indicate that the decision is made in the exercise of that delegated authority. The Law Complaints Officer should thus have indicated, in the Decision, that he made the Decision as the delegate of the LPCC.
Given that the decision was made by the Law Complaints Officer himself, in the exercise of delegated authority, it is necessary to amend the name of the respondent in the Review Application to correctly identify the decisionmaker as the Law Complaints Officer as the delegate of the LPCC,[74] rather than the LPCC itself. We will therefore make an order correcting the name of the respondent to the Review Application.
[74] See also State Administrative Tribunal Act 2004 (WA) (SAT Act), s 36(5).
Irrespective of whether a decision under s 415 of the LP Act is made by the LPCC, or by the Law Complaints Officer pursuant to a delegation, the Tribunal clearly has power to review such a decision, pursuant to s 435 of the LP Act. The Decision is therefore amenable to review by the Tribunal.

The parties' submissions

Ms Chen, who was not legally represented on the Review Application, provided detailed submissions.[75]
[75] Applicant’s Submissions dated 18 July 2021 (Applicant’s Submissions).
In relation to Dr Hockley's conduct, Ms Chen's argument, in summary, was that when she paid Dr Hockley, at the conclusion of the Mediation, that brought an end to the 'short-term legal relationship between he and me'.[76] She contended that in sending the 30 September email Dr Hockley 'used deception to violate my legal rights in the name [of] my former lawyer, Mr Wang at Herald Legal, without any authorisation or instruction.'[77]
[76] Applicant’s Submissions, page 10.
[77] Applicant’s Submissions, page 20.
In support of her submission that Dr Hockley acted without instruction, she submitted that she had changed her lawyers to Chan Galic on 29 September 2020, from which point Mr Wang was no longer her lawyer; she did not authorise Mr Wang to instruct Dr Hockley to deal with any matter for her after 8 September 2020; Herald Legal did not instruct Dr Hockley to deal with any matter for her after 8 September 2020; Dr Hockley's 30 September email was sent after her lawyers (Chan Galic) wrote a letter to Mr Taylor on 30 September 2020; and that Dr Hockley's conduct was 'a violation of my legal rights by an individual who knows the law and violates the law'.[78]
[78] Applicant’s Submissions, page 20.
The LPCC provided brief submissions,[79] and quite properly participated in the review proceedings only to a limited extent. The LPCC noted that neither the Decision nor the letter to Ms Chen of 2 February 2021 from the legal officer of the RRT, contained a specific finding that the Complaint was 'vexatious', 'misconceived', 'frivolous' or 'lacking in substance'. In those circumstances, the LPCC submitted that it was open to the Tribunal either to determine whether the Complaint should be dismissed under s 415(1)(b), or to set aside the Decision and refer the matter to the LPCC for reconsideration pursuant to s 29(3)(c)(ii) or alternatively to invite the LPCC to reconsider the Decision.[80]
[79] First Respondent's Submissions dated 24 August 2021 (First Respondent’s Submissions).
[80] First Respondent's Submissions, para 2.
Dr Hockley filed submissions.[81] He submitted that there was no evidence that by sending the 30 September email he had attempted to alter the terms of the Deed.[82] Instead, he submitted that the purpose for sending the 30 September email was to secure the implementation of the Deed, which was to the advantage of Ms Chen and her daughter.[83] Dr Hockley submitted that his conduct was pursuant to his retainer, and was directed to effect the performance of the Deed.[84]
[81] Second Respondent's Submissions dated 31 August 2021 (Second Respondent’s Submissions).
[82] Second Respondent's Submissions, para 15.
[83] Second Respondent's Submissions, para 16.
[84] Second Respondent's Submissions, para 17.
Dr Hockley submitted that the terms of the Deed remained unvaried from the time of its execution, and to the extent that they pertained to Ms Chen and her daughter, the terms of the Deed had been performed.[85]
[85] Second Respondent's Submissions, para 18.
Dr Hockley therefore submitted that the Complaint was vexatious, misconceived, frivolous and lacking in substance.[86] He submitted that leave to seek a review of the Decision should be refused, and the Review Application should be dismissed.[87]

Does Ms Chen require leave of the Tribunal to apply for the review?

[86] Second Respondent's Submissions, para 19.

[87] Second Respondent's Submissions, para 21.

Having considered Ms Chen's complaint, the Law Complaints Officer concluded that no further investigation was required, and dismissed the complaint pursuant to s 415(1)(b) and s 415(3) of the LP Act.
Because the Review concerns whether the Complaint should be summarily dismissed under s 415 of the LP Act, it is convenient to set out that section in its entirety:
(1)The Complaints Committee may dismiss a complaint if —
(a)further details are not given, or the details of the complaint are not verified, as required by the Complaints Committee under section 412; or
(b)the complaint is vexatious, misconceived, frivolous or lacking in substance; or
(c)the conduct complained about is the subject of another complaint; or
(d)it is not in the public interest to deal with the complaint having regard to the fact that the name of the Australian legal practitioner to whom the complaint relates has already been removed from any Australian roll on which the practitioner was enrolled.
(2)The Complaints Committee must dismiss a complaint if —
(a)the complaint was made more than 6 years after the conduct complained of is alleged to have occurred, unless a determination is made under section 411 in relation to the complaint; or
(b)the conduct complained about has been the subject of a previous complaint that has been dismissed; or
(c)the complaint is not one that the Complaints Committee has power to deal with.
(3)The Complaints Committee may dismiss a complaint under this section without completing an investigation if, having considered the complaint, the Complaints Committee forms the view that the complaint requires no further investigation.
Section 435(1)(a) of the LP Act gives a person who is aggrieved by a decision of the LPCC to dismiss a complaint a right to apply to the Tribunal for a review of the decision.
Section 435(2) of the LP Act expressly provides that if the LPCC, in its reasons for decision, 'specifically finds the complaint to be trivial, unreasonable, vexatious or frivolous', the person aggrieved cannot apply to the Tribunal for a review without the leave of the Tribunal.
We note that, somewhat curiously, there is a difference in the terms of s 435(2) of the LP Act and s 415(1)(b) of the LP Act. The former refers to the LPCC making a finding that a complaint is 'trivial, unreasonable, vexatious or frivolous'. In contrast, under s 415(1)(b), the LPCC may determine that a complaint is 'vexatious, misconceived, frivolous or lacking in substance'. Given the difference in the terms of those provisions, it is far from clear whether the bases for dismissal referred to in s 435(2), and which would trigger a requirement for the grant of leave to apply for a review, were intended to be co-extensive with the bases for summarily dismissing a complaint under s 415(1)(b). That is especially so given that a review under s 435 is not limited to those cases in which the LPCC (or the Law Complaints Officer, acting with delegated power) dismisses a complaint under s 415. However, it is unnecessary for us to decide that issue, because the Law Complaints Officer did not make a specific finding that the Complaint was either trivial, or unreasonable, or vexatious, or frivolous (to use the words in s 435(2)). The Law Complaints Officer simply dismissed the Complaint under s 415(1)(b) and s 415(3) of the LP Act. In so far as he decided that the Complaint should be dismissed under s 415(1)(b), the Law Complaints Officer did not make a specific finding that the Complaint was either 'vexatious' or 'misconceived' or 'frivolous' or 'lacking in substance'.
Further, nothing in the reasons set out in the letter of 2 February 2021 from the legal officer of the RRT to Ms Chen, which reasons were relied on by the Law Complaints Officer in the Decision, constituted a specific finding that the Complaint was trivial, or unreasonable, or vexatious, or frivolous. In that letter, the legal officer concluded that there was no 'conduct issue' that required investigation.
In the absence of a specific finding by the Law Complaints Officer that the Complaint was trivial, unreasonable, vexatious or frivolous, the requirement for leave in s 435(2) of the LP Act is not engaged. Accordingly, we have determined that Ms Chen does not require leave to seek a review of the Decision.

The Tribunal's functions on a review under s 435 of the LP Act

Because s 435(1) of the LP Act expressly gives the Tribunal jurisdiction to review a decision of the LPCC to dismiss a complaint, an application of that kind comes within the Tribunal's review jurisdiction.[88]
[88] SAT Act, s 17(1); see also Lawson and Legal Profession Complaints Committee [2019] WASAT 36 [31].
A review is to be dealt with in accordance with the enabling Act (in this case, the LP Act) and the State Administrative Tribunal Act 2004 (WA) (SAT Act), subject to any modification of the operation of the SAT Act by the enabling Act.[89]
[89] SAT Act, s 18.

The nature of review proceedings is described in s 27 of the SAT Act, which provides:
(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.
The phrase 'hearing de novo' as it pertains to the Tribunal's review jurisdiction under the SAT Act involves a fresh hearing, whereby the Tribunal may set aside the decision the subject of the review, regardless of any demonstrated error on the part of the original decisionmaker. The Tribunal is required to make its own decision, on the evidence before it, which includes all the evidence before the decisionmaker, and any additional evidence put before the Tribunal on the review. Given that the Tribunal is conducting a hearing de novo, no party bears any legal or practical onus of proof.[90] In other words, Ms Chen does not bear any onus to show that a departure from the Decision is justified. As s 27(2) makes clear, the question for the Tribunal is simply what is the correct and preferable decision, having regard to all of the material before it at the date of the review.
[90] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331 at [121] and [128], (Buss P, Murphy and Mitchell JJA) citing Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2018] WASCA 32 at [61].
On the review, the Tribunal has functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision.[91] The Tribunal may affirm or vary the decision being reviewed. It may also set aside the decision and substitute its own decision or send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate.[92]
[91] SAT Act, s 29(1).
[92] SAT Act, s 29(3).
On a review under s 435, the Tribunal stands in the shoes of the LPCC (or Law Complaints Officer, acting with the delegated authority of the LPCC, as the case may be). In this case, the Decision was, in substance, that the Complaint should be summarily dismissed under s 415 of the LP Act. At the point in time when the Decision was made, the Complaint had been received from Ms Chen, and had been referred to the RRT where it was treated as an enquiry, with a view to ascertaining whether the Complaint raised an issue concerning the conduct of a practitioner which required investigation.[93] However, some preliminary investigations were clearly conducted: the legal officer at the RRT requested that Ms Chen provide details of the Complaint,[94] and Dr Hockley was advised of the Complaint, and provided documents in relation to the Complaint.[95] Having undertaken those preliminary investigations, the legal officer at the RRT advised Ms Chen that the 30 September email did 'not enliven any conduct issues' and that 'no conduct issue … requires investigation'.[96] In other words, he concluded that there was nothing to suggest that Dr Hockley's conduct warranted further investigation to determine whether disciplinary action was required on the ground that he had engaged in either unsatisfactory professional conduct or professional misconduct. The Complaint was then referred to the Law Complaints Officer to determine what action should be taken in relation to the Complaint.
[93] First Respondent's Bundle, page 103.
[94] See LP Act, s 412.
[95] See LP Act, s 413.
[96] First Respondent's Bundle, page 106.
The functions of the LPCC at such an early stage in the consideration of a complaint, and prior to the completion of an investigation of a complaint, are as follows:
(a)the LPCC may summarily dismiss the complaint if any of the circumstances described in s 415(1) of the LP Act apply, that is:
•if a complainant does not verify the details of a complaint as requested by the LPCC;
•if the complaint is vexatious, misconceived, frivolous or lacking in substance;
•if the conduct complained of is the subject of another complaint; or
•if it is not in the public interest to deal with the complaint because the practitioner's name has already been removed from the roll of practitioners;
(b)the LPCC must summarily dismiss the complaint if the circumstances in s 415(2) apply, that is:
•if the complaint is made more than 6 years after the alleged conduct;
•if the conduct was the subject of a previous complaint that was dismissed; or
•the complaint is not one that the LPCC has power to deal with;
(c)the LPCC may summarily dismiss the complaint, pursuant to s 415(3), without completing an investigation, if, having considered the complaint, the LPCC forms the view that the complaint requires no further investigation; or
(d)otherwise, the LPCC must proceed to complete an investigation into the complaint, pursuant to s 421(2) (subject to s 421(3) of the LP Act).
In the present case, the role of the Tribunal, standing in the shoes of the Law Complaints Officer, is to determine which of those courses of action constitutes the correct and preferable decision.
This is not a case in which s 415(1)(a), s 415(1)(c), s 415(1)(d) or s 415(2) of the LP Act applies. That is because this was not a case in which Ms Chen failed to provide further details of the Complaint upon request by the LPCC. This is not a case in which the conduct complained about is the subject of another complaint, or which was the subject of another complaint which was dismissed. The Complaint is not one in which the conduct complained of occurred more than six years prior to the Complaint being made. And the Complaint is not one which, at least on its face, is outside the scope of complaints with which the LPCC is empowered to deal.
That being the case, the questions for the Tribunal are:
(a)whether the information contained in the Complaint, and the evidence obtained thus far in the investigation, warrant the completion of the investigation of the Complaint;[97] or
(b)whether the Complaint is vexatious, misconceived, frivolous or lacking in substance, and should be dismissed;[98] or
(c)whether the Complaint requires no further investigation, and should be dismissed.[99]

The correct and preferable decision – should the investigation of the Complaint be completed?

[97] LP Act, s 421(2).

[98] LP Act, s 415(1)(b).

[99] LP Act, s 415(3).

It is convenient to consider, first, whether the information contained in the Complaint, and the evidence obtained thus far in the investigation, warrant the completion of the investigation of the Complaint. In our view, that question should be answered by considering two matters.
The first is whether the information in the Complaint, and the evidence obtained thus far in the investigation, gives rise to a reasonable cause to suspect that the practitioner has been guilty of unsatisfactory professional conduct,[100] or professional misconduct.[101] Whether the LPCC has a 'reasonable cause to suspect' is the criterion adopted in s 421(1) of the LP Act for whether the LPCC should, on its own initiative, investigate the alleged conduct of a practitioner. In our view, the same criterion should apply in relation to the investigation, or continued investigation, of a complaint, pursuant to s 421(2) of the LP Act. That is because in each case, what is under investigation is an allegation (in the case of a complaint under s 421(2)), or information that may suggest (in cases the subject of s 421(1)) that a practitioner might have engaged in conduct which constitutes unsatisfactory professional conduct or professional misconduct. (In contrast, once an investigation has been completed and the LPCC's role is to determine what, if any, action should be taken in respect of the practitioner's alleged conduct, different considerations apply. At least in those cases where the question is whether the complaint should be dealt with summarily by the LPCC, or dismissed, one of the considerations the LPCC must consider is whether there is a reasonable likelihood that the practitioner would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct.[102])
[100] As defined in s 402 of the LP Act.
[101] As defined in s 403 of the LP Act.
[102] Cf LP Act, s 425 and s 426.
The requirement for a 'reasonable cause to suspect' is no different from a requirement for reasonable grounds for suspecting. When a statute prescribes that there must be 'reasonable grounds' for a suspicion, it requires the existence of facts which are sufficient to induce that state of mind (that is, that suspicion) in a reasonable person.[103] Self-evidently, that does not require a conclusive finding that the matters the subject of suspicion have occurred.[104]
[103] George v Rockett (1990) 170 CLR 104, 112; L v P [2022] WASCA 40 at [83].
[104] L v P [2022] WASCA 40 at [83].
The second matter for consideration is whether further investigation is likely to uncover additional evidence which may alter the conclusion as to whether there is reasonable cause to suspect that the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.
In the Complaint, Ms Chen did not particularise the way in which she alleged that Dr Hockley's conduct in sending the 30 September email might be regarded as constituting unsatisfactory professional conduct or professional misconduct. Similarly, neither the legal officer of the RRT nor the Law Complaints Officer particularised how Dr Hockley's alleged conduct might constitute unsatisfactory professional conduct or professional misconduct. There appear to us to be three ways in which the Complaint might be understood to allege that Dr Hockley engaged in unsatisfactory professional conduct or professional misconduct.
First, the Complaint can be understood to allege that Dr Hockley sent the 30 September email, purportedly on behalf of Ms Chen, and in the knowledge that his retainer had been terminated at the conclusion of the Mediation, and that that conduct constituted unsatisfactory professional conduct or professional misconduct.
Secondly, the Complaint can be understood to allege that in the 30 September email, Dr Hockley put to Taylor & Taylor a proposal for the implementation of the Deed which he knew to be inconsistent with the terms of the Deed itself, and that he did so in the knowledge that he had no instructions from either his instructing solicitors, or from Ms Chen herself, to advance that proposal, and that that conduct constituted unsatisfactory professional conduct or professional misconduct.
Thirdly, the Complaint can be understood to allege that Dr Hockley sought to alter the terms of the Deed, and that he did so dishonestly, and for a malicious purpose, and that that conduct constituted unsatisfactory conduct or professional misconduct.
In reaching the correct and preferable decision, then, the Tribunal must consider whether the information contained in the Complaint and disclosed by the investigation conducted so far, gives rise to a reasonable cause to suspect that Dr Hockley engaged in conduct which constituted unsatisfactory professional conduct or professional misconduct. If not, the Tribunal needs to consider whether further investigation of the Complaint is likely to uncover additional evidence which may alter that conclusion. Only if the Tribunal considers that either of these questions should be answered yes would the correct and preferable decision be to complete the investigation of the Complaint.

Is there reasonable cause to suspect that Dr Hockley sent the 30 September email in the knowledge that he no longer acted for Ms Chen?

We turn to the first basis on which the Complaint may be understood to allege that Dr Hockley engaged in unsatisfactory professional conduct or professional misconduct.
Having regard to the documentary evidence which the parties provided to the RRT, and bearing in mind that because the investigation of the Complaint has not been completed, the documentary evidence may not represent the entirety of the evidence relevant to the Complaint, we note the following.
First, there is no evidence that Dr Hockley was instructed to send a follow up email to Taylor & Taylor after the Mediation. However, the timing, tone and content of the 30 September email are consistent with the conclusion that Dr Hockley sent that email simply as a courtesy following the Mediation, with a view to ensuring that the implementation of the Deed would occur without delay.
Secondly, the evidence as to the terms of Dr Hockley's retainer is unclear. There is no evidence that Dr Hockley's fee agreement was signed. Dr Hockley relied on Herald Legal's conduct, in instructing him after receiving the fee agreement, as indicating that they agreed to retain him in accordance with the terms of that fee agreement. However, at this stage there is no evidence as to the scope of his retainer, and in particular, no documentary evidence to indicate that he was retained solely for the purpose of attending the Mediation. The documentary evidence points to a contrary conclusion. Dr Hockley was also retained for the purpose of providing the Opinion in relation to the Proceedings.
Thirdly, there is no documentary evidence to indicate that Dr Hockley's retainer was terminated by Herald Legal after the Mediation. Nor is there any evidence that when Ms Chen paid Dr Hockley his fee, at the conclusion of the Mediation, that she told him at that point that his retainer was terminated, or that she no longer wanted him to act on her behalf in relation to the matter. Her contention that the payment of Dr Hockley's fee brought an end to the retainer appears simply to reflect her subjective understanding of the legal consequence of payment of that fee.
Fourthly, Ms Chen's emails of 28 September 2020 were not inconsistent with the conclusion that Dr Hockley's retainer was continuing, and that he may be requested to assist with aspects of the implementation of the Deed.
Fifthly, it is apparent from Dr Hockley's email of 7 October 2020 to Ms Chen that he was unaware that Herald Legal no longer acted for Ms Chen until she advised him of that development, in her email of 6 October 2020.
Furthermore, the available evidence strongly suggests that as at 30 September 2020, Dr Hockley believed that he was still retained by Herald Legal to act on Ms Chen's behalf in relation to the matters which had been the subject of dispute between Ms Chen and the Muenkels, and which were to be resolved by the Deed. The terms of the 30 September email are consistent with that belief. Dr Hockley's email of 30 September 2020 to Herald Legal is also consistent with that belief, although it is also apparent that Dr Hockley was concerned to ensure that he was paid for any further work (in light of the fact that he had still not been paid his fee for providing the Opinion).
In our view, the available evidence does not give rise to reasonable cause to suspect that when Dr Hockley sent the 30 September email, he was, in fact, no longer retained to act for Ms Chen, much less that he sent the 30 September email with the knowledge that he was no longer retained to act for Ms Chen.
Furthermore, we do not consider that further investigation of the Complaint is likely to uncover additional evidence which may alter that conclusion. That is because it appears that all of the available documentary evidence has already been obtained from the parties. Ms Chen has already provided her perspective on what occurred, in the course of her extensive submissions. It is highly unlikely that further inquiries of Dr Hockley would cast a different complexion on the position than that conveyed by the documents.

Is there reasonable cause to suspect that in the 30 September email, Dr Hockley put to Taylor & Taylor a proposal for the implementation of the Deed which he knew to be inconsistent with the terms of the Deed itself, and in the knowledge that he had no instructions from either his instructing solicitors, or from Ms Chen herself, to advance that proposal?

We turn, next, to the second basis on which the Complaint may be understood as an allegation that Dr Hockley engaged in unsatisfactory professional conduct or professional misconduct. Having regard to the documentary evidence, and again bearing in mind that because the investigation of the Complaint has not been completed, the documentary evidence may not represent the entirety of the evidence relevant to the Complaint, we note the following.
First, it is apparent that the proposal Dr Hockley set out in the 30 September email, in relation to the administration of the Estate, was inconsistent with the terms of the Deed. In the Deed, the parties agreed that they would appoint the Public Trustee to administer the Estate in accordance with the terms of the Deed.
Secondly, there is nothing in the terms of the 30 September email that indicates that Dr Hockley was consciously proposing a course of action which was inconsistent with the Deed. He offered no explanation for the proposal. It was not advanced as an alternative to what had been agreed. On the contrary, Dr Hockley sought that Mr Taylor 'confirm' that his clients agreed that Mr Muenkel and Ms Chen would jointly administer the Estate, as though that was the approach, or at least one of alternative approaches, that had been agreed in the Deed. We note that there is no evidence to suggest that after the Mediation there were any discussions between Dr Hockley, Mr Wang and/or Ms Chen, or between Dr Hockley and Mr Taylor, about any alternative proposal to that agreed in relation to the administration of the Estate. Had Dr Hockley been consciously proposing a different approach to administration of the Estate than that which had been agreed in the Deed, one might have expected him to expressly invite Mr Taylor to obtain his clients' instructions on that proposal.
It is, with respect, mystifying why Dr Hockley referred to Mr Muenkel and Ms Chen jointly administering the Estate. However, one thing is clear. There is no evidence to support the conclusion that Dr Hockley referred to the joint administration of the Estate for any dishonest or malicious purpose.
Having regard to the available evidence, the most likely explanation for why Dr Hockley referred, in the 30 September email, to the joint administration of the Estate, is that he was mistaken about what had been agreed in relation to the administration of the Estate. As we have already observed, the timing, tone and content of the 30 September email are consistent with the conclusion that Dr Hockley sent it merely as a courtesy follow-up after the Mediation. The content of the 30 September email was clearly directed to assisting Ms Chen by progressing the implementation of the terms of the Deed. In that respect, it is significant that there is no evidence of any written communication between any of Ms Chen's legal representatives, and Taylor & Taylor, in relation to the implementation of the Deed, prior to 30 September 2020.

In summary, all of the available evidence suggests that Dr Hockley's reference to Mr Muenkel and Ms Chen acting as joint administrators of the Estate was due to a mistake on his part.
We note that that mistake did not result in any adverse consequences for Ms Chen, as it was quickly identified and corrected. It appears that on or before 2 October 2020, Ms Chen became aware of a communication between Mr Taylor and Mr Wang, in which joint administration of the Estate had been raised. In her email of 2 October 2020 Ms Chen advised Chan Galic that she did not agree to jointly administering the Estate with Mr Muenkel, and on the same day Chan Galic advised Mr Taylor of those instructions. The parties thereafter reverted to pursuing the agreement of the Public Trustee to act as the administrator of the Estate.
In our view, the available evidence does not give rise to reasonable cause to suspect that Dr Hockley's conduct in sending the 30 September email constituted unsatisfactory professional conduct, or professional misconduct.
Furthermore, for the reasons outlined in para [114] above, we do not consider that further investigation of the Complaint is likely to uncover additional evidence which may alter that conclusion.
We also consider that this aspect of the Complaint is lacking in substance, because having regard to the available evidence, the most likely explanation for the 30 September email was that Dr Hockley simply made a mistake in relation to the terms of the Deed, which mistake was quickly identified, and had no adverse consequences for Ms Chen.

Is there reasonable cause to suspect that Dr Hockley sought to alter the terms of the Deed, that he did so for a malicious purpose, and that his behaviour was deceitful?

In so far as Ms Chen alleged that the 30 September email constituted a 'malicious attempt to tamper' with the Deed, there is no evidence whatsoever to support that assertion. There is no evidence that Dr Hockley sent the 30 September email with a malicious or deceitful intent. For the reasons outlined above, the available evidence points overwhelmingly to the opposite conclusion. The available evidence does not give rise to a reasonable cause to suspect that Dr Hockley engaged in unsatisfactory professional conduct and professional misconduct on this basis.
Furthermore, for the reasons outlined in para [114] above, we do not consider that further investigation of the Complaint is likely to uncover additional evidence which may alter that conclusion.
Furthermore, the allegation that Dr Hockley's conduct constituted a 'malicious attempt to tamper' with the Deed, and that his behaviour was deceitful, was thus a characterisation of his conduct which was wholly untenable.[105] This aspect of the Complaint is lacking in substance.
[105] Laurent and Commissioner of Police [2009] WASAT 254 at [23]; State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109 (Ormiston JA).
In addition, there is no evidence of any 'tampering' with the terms of the Deed. This aspect of the Complaint is wholly misconceived, in that it connotes a misunderstanding of legal principle, namely the basis upon which the Supreme Court may grant letters of administration.[106] That is because the grant of letters of administration requires an application to the Supreme Court by the proposed administrator(s), which is accompanied by an affidavit or affidavits sworn by the proposed administrator(s).[107] That application could not have been made on Ms Chen's behalf without her express agreement.
[106] Laurent and Commissioner of Police [2009] WASAT 254 at [23].
[107] See rule 9 of the Non-Contentious Probate Rules 1967 (WA).
This aspect of the Complaint is both misconceived and lacking in substance.

Conclusion as to the correct and preferable decision

Having considered the matter afresh, in our view the correct and preferable decision is that the information in the Complaint, together with the available evidence, does not give rise to reasonable cause to suspect that Dr Hockley's conduct constituted unsatisfactory professional conduct or professional misconduct on any of the three alternative bases set out above. For the reasons set out above, we do not consider it likely that further investigation of the Complaint will alter that conclusion. Consequently, in our view, no further investigation of the Complaint is warranted, and the Complaint should be dismissed under s 415(3) of the LP Act.
In so far as the Complaint alleged that in the 30 September email, Dr Hockley raised the joint administration of the Estate, knowing that that was inconsistent with the terms of the Deed, and in the knowledge that he had no instructions from his instructing solicitors, or from Ms Chen, that aspect of the Complaint is lacking in substance, and should be dismissed under s 415(1)(b).
In addition, in so far as the Complaint alleges that Dr Hockley's conduct in sending the 30 September email constituted a 'malicious attempt to tamper' with the Deed, and deceitful behaviour on his part, that aspect of the Complaint is both misconceived and lacking in substance, and that aspect of the Complaint should also be dismissed under s 415(1)(b).
Accordingly, the correct and preferable decision is that the Decision of the Law Complaints Officer to dismiss the Complaint under s 415(1)(b) and s 415(3) should be affirmed.

Orders

The Tribunal orders:
1.The name of the first respondent to the proceedings is amended to the Law Complaints Officer, as the delegate of the Legal Profession Complaints Committee.
2.The decision of the Law Complaints Officer made on 25 February 2020 is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
EN
Associate to the Honourable Justice Pritchard
12 APRIL 2022