CHINNERY and LEGAL PROFESSION COMPLAINTS COMMITTEE - [2013] WASAT 79

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION: CHINNERY and LEGAL PROFESSION COMPLAINTS COMMITTEE [2013] WASAT 79

MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
MS R MOORE (MEMBER)
MS A DAVIES (SENIOR SESSIONAL MEMBER)

HEARD: 20 MARCH 2013 AND 6 MAY 2013

DELIVERED : 31 MAY 2013

FILE NO/S: VR 199 of 2012

BETWEEN: ADARIA MARIA CHINNERY
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
CHRIS DUNNELL
Second Respondent
BRENDAN TAYLOR
Third Respondent
CHAU SAVAS
Fourth Respondent
RONALD BOWER
Fifth Respondent
JOEL YELDON
Sixth Respondent
PAUL WILLIAMS
Seventh Respondent
NOVA OLDFIELD
Eighth Respondent

Catchwords:

Legal practitioners - Professional misconduct - Unsatisfactory professional conduct - Leave to seek review - Principles to be applied - Complaints found to be unreasonable - Whether practitioners likely to be found guilty of unsatisfactory professional conduct or professional misconduct

Legislation:

Legal Profession Act 2008 (WA), s 402, s 403, s 435(1)(a), s 435(2),
State Administrative Tribunal Act 2004 (WA), s 24
Transfer of Land Act 1893 (WA), s 138B, s 192(1)

Result:

Leave refused and application otherwise dismissed

Summary of Tribunal's decision:

Ms Adaria Maria Chinnery brought an application under s 435 of the Legal Profession Act 2008 (WA) for a review of the decision of the Legal Profession Complaints Committee to dismiss certain complaints which she had made against a number of legal practitioners.
The Committee had found that a number of those complaints were unreasonable and, in one case, vexatious and leave of the Tribunal was required.
In respect of those complaints found to be unreasonable or vexatious, the Tribunal considered whether the decision to dismiss the complaints was wrong or attended with sufficient doubt to justify the granting of leave. In respect of the complaints not found to be unreasonable or vexatious, the Tribunal considered whether there is any reasonable likelihood that the various practitioners would be found guilty by this Tribunal of either unsatisfactory professional conduct or professional misconduct if the Committee had brought those complaints to the Tribunal.
In respect of the complaints which the Committee considered to be unreasonable or vexatious, the Tribunal decided that the Committee's decision was not wrong or at least attended with sufficient doubt to justify the granting of leave. Accordingly, leave was refused. In respect of the other complaints, the Tribunal decided that it is unlikely that the Tribunal would make a finding against the practitioners concerned.
The application was dismissed.

Category: B

Representation:

Counsel:

Applicant:     In person
First Respondent          :     Ms D Mahiepala
Second Respondent      :     In person
Third Respondent        :     In person
Fourth Respondent      :     Mr C McIntosh
Fifth Respondent         :     Mr C McIntosh
Sixth Respondent         :     Mr AJ Power
Seventh Respondent     :     N/A
Eighth Respondent       :     Ms PE Cahill

Solicitors:

Applicant:     N/A
First Respondent          :     Legal Profession Complaints Committee
Second Respondent      :     N/A
Third Respondent        :     N/A
Fourth Respondent      :     N/A
Fifth Respondent         :     N/A
Sixth Respondent         :     Thompson Downey Cooper
Seventh Respondent     :     N/A
Eighth Respondent       :     Oldfield Legal

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

BHP Petroleum Pty Ltd v Oil Basin Ltd [1985] VR 756
Neil and Legal Profession Complaints Committee [2010] WASAT 39
SJX and Legal Profession Complaints Committee [2012] WASAT 154
Wilson v Metaxas [1989] WAR 285

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant in this matter is Adaria Maria Chinnery who, from about August 2007, had been endeavouring to obtain vacant possession of her property in Boddington and to remove a caveat lodged against the title to that property. The Boddington property was occupied by her son and his partner. Between August 2007 and late November 2011, the applicant engaged a series of different lawyers to assist her with these matters.
In July 2011, the applicant made a number of complaints against each of those lawyers to the Legal Profession Complaints Committee (Committee). The Committee considered those complaints and dismissed them. The applicant then sought a review of that decision under s 435(1)(a) of the Legal Profession Act 2008 (WA) (Legal Profession Act), but limited her application to her complaints against practitioners Mr CP Dunnell, Mr BH Taylor, Ms CK Savas, Mr RW Bower, Mr JC Yeldon, Mr P Williams and Ms NN Oldfield.

The Legal Profession Act

Under the Legal Profession Act, if a complaint is made to the Committee about the conduct of a legal practitioner, the Committee must investigate the complaint. The Committee must then follow one or more of the procedures prescribed by the Legal Profession Act in relation to the complaint, including either dismissing the complaint or determining that the complaint should be referred to the Tribunal.
Section 435(1) of the Legal Profession Act gives a right of review to a person aggrieved by a decision of the Committee to dismiss that person's complaint against a legal practitioner.
However, s 435(2) of the Legal Profession Act provides that, if the Committee, in its reasons for its decision, specifically finds that the complaint is trivial, unreasonable, vexatious or frivolous then the aggrieved person cannot apply to the Tribunal for a review of that decision without the leave of the Tribunal.
Thus, as the President of this Tribunal said in Neil and Legal Profession Complaints Committee [2010] WASAT 39 (Neil) at [21], it is clear that the legislature did not intend that all aggrieved complainants should be able to disregard the Committee's views as to the merits of their complaint and have an unfettered right to seek review. If the complaint is to be referred to the Tribunal, the primary responsibility for doing so rests with the Committee, not the complainant.
The obvious intent of s 435(2), and the object of the requirement for leave generally, is to reduce appeals as much as possible; Wilson v Metaxas [1989] WAR 285 (Wilson) at [294].
The Committee in its reasons for its decision in this case expressly found that some of the applicant's complaints were unreasonable and, in respect of one complaint, vexatious. Accordingly in respect of those complaints these proceedings come before the Tribunal by way of an application for leave to apply for a review.
When considering applications for leave, the Tribunal applies the criteria for the grant of leave identified by the Full Court in Wilson at [294]. The criteria are that:
1.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
2.substantial injustice would be done by leaving the decision unreversed.
What is substantial injustice must depend on all the circumstances of the case; BHP Petroleum Pty Ltd v Oil Basin Ltd [1985] VR 756 at 759.
It follows that, in respect of the parts of the applicant's complaint which the Committee expressly found to be unreasonable or vexatious, the Tribunal needs to determine whether the Committee's decision to dismiss the complaint was wrong or attended with sufficient doubt to justify the grant of leave.
If the Tribunal finds that the Committee was wrong or that the decision was attended with sufficient doubt to justify the ground of leave, it must also then find that a substantial injustice would be done by leaving the decision unreversed.
If leave is granted, the Tribunal needs to satisfy itself as to whether there is any reasonable likelihood that the various practitioners would on referral be found guilty by this Tribunal of either unsatisfactory professional conduct or professional misconduct, as defined in s 402 and s 403 respectively of the Legal Profession Act. The same applies in respect of the parts of the complaints which were not found to be unreasonable or vexatious. In doing so, the Tribunal is not confined to matters that were before the Committee and may consider new material, whether or not it existed at the time the original decision was made. The Tribunal is, however, confined to considering only the complaints upon which the Committee made findings and not any new or different complaints that the applicant may now have or which may have arisen out of the Committee's decision; SJX and Legal Profession Complaints Committee [2012] WASAT 154 at [17].
For clarity, we should say that the decision in respect of which leave is sought is the decision of the Committee under s 425 of the Legal Profession Act that there is no reasonable likelihood that the various practitioners would be found guilty by this Tribunal of either unsatisfactory professional conduct or professional misconduct. The Committee's finding that the complaint was unreasonable or vexatious is not under consideration. To the extent that this is inconsistent with what this Tribunal said in Neil at [49], which is itself inconsistent with the reasons set out earlier in Neil, we respectfully disagree with the conclusion in that paragraph.

The hearing

The hearing of this matter was originally set down for a half day on 13 February 2013. This was based on the applicant's assurance to the President of the Tribunal at an earlier directions hearing that 'the paperwork is not extensive' and that she only required to show the Tribunal 'say, forty pieces of documents, that's all'. However, over two thousand pieces of paper were in fact filed and the hearing was vacated and relisted for a full day on 20 March 2013. At the end of that day the applicant had not completed the presentation of her case. Accordingly the matter was listed for a further day on 6 May 2013. On that date, the Tribunal delivered its decision to refuse leave and to otherwise dismiss the application. We undertook to provide written reasons for that decision. These are those reasons.
On the first day of the hearing, the Committee tendered its bundle of documents under s 24 of the State Administrative Tribunal Act 2004 (WA). The bundle, in three volumes, was admitted and marked as Exhibit A. The applicant also tendered a separate bundle of documents which was admitted and marked as Exhibit B.

The Committee's decision

We turn now to the Committee's decision, which is contained in a letter from the Committee to the applicant dated 19 October 2012.
The letter opens by advising the applicant that the Committee had resolved to dismiss all of her complaints. The Committee informed the applicant that it was satisfied that there was no reasonable likelihood that any of the practitioners concerned would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct.
The letter also provides the background to the matter. Each of the practitioners acted for the applicant at various times between August 2007 and November 2011 in respect of the applicant's defence of Supreme Court proceedings commenced by her son and his partner. Those proceedings included a counterclaim by which she sought:
a)the removal of a caveat lodged by her son and his partner against a property where they were living and of which she was the registered proprietor; and
b)vacant possession of that property.
The letter then goes on to deal with the specific complaints against each of the practitioners concerned. We will now deal with these complaints to the extent that they are the subject of the applicant's application for review to this Tribunal, in the order that the Committee dealt with them.

Mr Williams, Ms Oldfield and Mr Yeldon

Mr Williams and Ms Oldfield acted for the applicant from August 2007 to November 2008. Ms Oldfield then acted for the applicant until 25 August 2009. Mr Yeldon was retained as counsel from October 2007 to August 2009.
The first complaint against all three practitioners was that they failed to advise the applicant of the existence of some 'technical deficiencies' in a statutory declaration which was filed at Landgate in support of the caveat lodged against the applicant's property. The complaint included failing to take action through the Registrar of Titles to have the caveat removed, in the applicant's word, 'administratively'.
With regard to the latter failure, it would seem that the applicant had, sometime later, received advice from various sources other than the practitioners themselves that the caveat was not able to be registered. In the applicant's view, the practitioners should have approached the Registrar of Titles and requested him to reject the caveat without the necessity of a formal application. The applicant alleges that she received this advice from, amongst others, the Registrar of Titles (T:85; 20.3.13).
Because this is a complaint which in substance is common to the complaints against all of the practitioners, it is appropriate at this point to consider in detail the caveat and the 'technical difficulties' with the supporting statutory declaration.
The caveat had been prepared in the joint names of the applicant's son, Daniel, and Daniel's partner, Dana. The interest claimed under it was that Daniel and Dana were entitled to an undivided share of the land, as beneficiaries of a trust (Exhibit A page 240). When the caveat was presented to the Registrar of Titles for registration, the support for the claim was in the form of a statutory declaration from Dana (Exhibit A page 239). The statutory declaration from Dana states that she and Daniel hold an equitable interest in the land as beneficiaries of a trust, apparently arising out of a verbal agreement between the applicant on one part and Daniel and Dana on the other.
On 16 July 2007, the Registrar issued a requisition to the lodging party (Exhibit A page 1035), pointing out that the statutory declaration was made by Dana only the Registrar's Practice Manual requires that all caveators must provide the necessary supporting information (emphasis added). He described this as 'not acceptable' and the caveators were given 14 days to remedy the problem. Failure to do so, the requisition stated, may lead to the caveat being rejected (emphasis added).
However, even though no remedial steps were taken, the caveat nonetheless was registered against the title to the applicant's property.
The applicant believes that the reason why the Registrar proceeded in this way was because he had not been approached 'administratively' to reject the caveat. However, we disagree with the applicant. We do not know why the caveat was ultimately accepted for registration in the light of the perceived problems with the statutory declaration. However, the applicant does not appear to appreciate that the Registrar's role is not to determine the interest claimed. While the Registrar has the discretion to reject a caveat, it is a discretion only; s 192(1) of the Transfer of Land Act 1893 (WA) (TLA). It is not for a registered proprietor of land in those circumstances to attempt to persuade the Registrar to exercise that discretion. If the Registrar decides to register the caveat, the appropriate step is then to make a formal application to the Registrar to give the caveators a notice under s 138B of the TLA. That notice requires that the caveators must, within 21 days, obtain and provide to the Registrar an order from the Supreme Court to extend the operation of the caveat. Failing that order, the caveat will lapse.
The practitioner, Ms Oldfield, took the 's 138B' approach. This led to the proceedings being commenced in the Supreme Court and to the other complaints.
The Committee dismissed this particular complaint and regarded it as being misconceived. The Committee considered, and accepted, the practitioners' explanation that, even if the caveat had been rejected by the Registrar, then it would be open to the caveators simply to lodge a further caveat.
The applicant at the hearing conceded this possibility (T:9; 20.03.13), but maintained that nonetheless if her lawyers had been successful in causing the Registrar to reject the caveat, her son and his partner 'would have had time to rethink because, you know, the rumour was that they were already in doubt about the whole process'. (T:10; 20.03.13). Of course, this is entirely speculative and assumes that the applicant was correct when she said that her son had 'refused to put an affidavit' (T:10; 20.03.13) or that her son would have believed mistakenly that the removal of a caveat 'administratively' was equivalent to a decision of the Supreme Court that he had no interest in the Boddington property. The reality though is that the applicant's son took the litigation path by commencing and maintaining proceedings against her.
In the Tribunal's view, each of the practitioners when dealing with the caveat took every step which they considered appropriate and which would be regarded by other practitioners as appropriate in the same circumstances. With the benefit of hindsight, the practitioners might have explained the situation a little more clearly to the applicant, particularly the Registrar's role in the matter. However, the practitioners' failings to that extent do not lead us to the conclusion that the Committee was wrong in finding that there is no reasonable likelihood that any of the practitioners would have been found guilty by this Tribunal on a referral to it by the Committee of unsatisfactory professional conduct or professional misconduct.
The applicant's further complaint against all three practitioners was that she had been overcharged by them for the services they performed.
The applicant, by the time this complaint had been dealt with by the Committee, had already applied to the Supreme Court to have the relevant accounts taxed. She was, however, late in doing so and her application was declined. The Tribunal notes, as did the Committee, that in the course of making the decision dated 10 June 2012 not to allow a late application for taxation, the Registrar did not consider that there was any prospect of any significant reduction on taxation. She said that the bills were sufficiently itemised and clear and that '(n)othing in the bills indicates excessive charges.' (Exhibit A page 1701). The Committee declined therefore to take any further action in respect of this complaint.
The Tribunal considers that this is the correct decision. In the light of the Registrar's comments and in the absence of any competing evidence, we consider that the Committee is correct in its conclusion that it is unlikely that we would make a finding of unprofessional conduct or professional misconduct against any of the practitioners in respect of this complaint.
The applicant had also made further complaints to the Committee about Mr Williams, namely that he failed to provide copies of monthly statements of account when requested and was abusive to the applicant in a telephone call to her. The applicant confirmed to the Tribunal that she accepts that the way in which the Committee dealt with these complaints was appropriate. The applicant does not seek a review of the Committee's decision in respect of that action (T:23-24; 20.03.13).
The applicant does however seek a review of the Committee's decision about her complaint to the Committee about Mr Williams' and Ms Oldfield's engagement of Mr Yeldon as counsel for the applicant. She said that this was done without her consent.
The Committee took the view that there was a conflict of evidence as to what the applicant's instructions to the practitioners comprised. Certainly, the documents in Exhibit A at pages 1408 1409 and 1589, being Ms Oldfield's file notes of telephone conversations with the applicant on the subject, indicate that the applicant took part in the decision to engage Mr Yeldon. The applicant's email to Ms Oldfield of 6 August 2009 (Exhibit A page 1424) also indicates acknowledgement of his engagement, subject to meeting with him.

The applicant's subsequent email to Ms Oldfield of 11 August 2009 (Exhibit A, page 1068) further persuaded the Committee that Mr Yeldon had been engaged with the consent and concurrence of the applicant.
The Tribunal has considered that and the other evidence upon which the Committee based this conclusion, namely the exchanges of emails between the applicant and Ms Oldfield on 11 August and 12 August 2009 (Exhibit A pages 1429 1438). The Tribunal is satisfied that the Committee's decision in this regard is correct. We conclude that the Committee is correct in finding that there is no likelihood that either practitioner would be found guilty of professional misconduct or unsatisfactory professional conduct in respect of this complaint.
The applicant also raised another complaint against Ms Oldfield and Mr Yeldon, namely that they continued to act after being instructed to take no further action. The applicant's instructions to Ms Oldfield to 'hold everything' were contained in an email dated 18 August 2009 (Exhibit A, page 1323). The applicant in particular claimed that Ms Oldfield had reengaged Mr Yeldon without her consent. The applicant, however, failed to convince the Committee that Ms Oldfield and Mr Yeldon did not comply with her instructions. The Committee considered that this particular complaint was vexatious.
We do not consider that it has been demonstrated that the Committee's decision in respect of this complaint was wrong or attended with doubt.
The applicant further complained to the Committee that Ms Oldfield failed to provide documents upon request. However, the Committee considered that the request for documents related to verification of work done for the purposes of accounting and concluded that this complaint had already been dealt with in the context of the taxation of the complaint of overcharging. Several of the requested documents had already been provided and Ms Oldfield had offered the applicant access to all documents held by her firm.
The Committee took the view that, to the extent that documents were not provided, this was because of either confusion as to what was required or because of circumstances beyond the control of the practitioner. We have not been shown that the practitioner deliberately withheld documents. We agree with the Committee's conclusion and the manner in which that complaint has been dealt with.
The applicant further complained that Ms Oldfield pressured the applicant into accepting a settlement and into engaging expert witnesses contrary to her wishes. This was considered by the Committee and dismissed. The Committee accepted Ms Oldfield's response in that regard, which was that she had acted properly at all times, had advised the applicant as the practitioner considered appropriate and had at all times treated the applicant with courtesy and respect. This is supported by the documents in Exhibit A at pages 1313, 1401 and 1426 - 1427. The Committee concluded that the advice provided by Ms Oldfield was appropriate. The Committee noted that a practitioner is required to be candid and forthright with his or her client and the fact that the applicant found some of the correspondence irrelevant and objectionable does not change that view.
Further, the applicant complained that Ms Oldfield had acted without instructions in drafting further versions of an affidavit, conducting a number of title searches and seeking information from the Australian Taxation Office. This was, in the view of the Committee, the result of the applicant not understanding the process of progressing the applicant's defence and counterclaim and the role of counsel in this process.
There is nothing to contradict the Committee's findings in this regard. The Tribunal considers that the Committee's decision that there is no likelihood that the practitioner would be found guilty of professional misconduct or unsatisfactory professional conduct in respect of this complaint is correct.
The applicant also complained that Ms Oldfield and Mr Yeldon provided her with incorrect advice by telling her that she 'bore the onus of proof in the proceedings'. Ms Oldfield denies this, saying that the applicant was told that she bore the onus of proof in her counterclaim and that in respect of her defence she was told that she would need to lead evidence to counter the plaintiff's case (Exhibit A page 1395).
The Tribunal considers that the practitioner's version of what the applicant was told is the more likely one. It is consistent with the terms of the applicant's defence and counterclaim (Exhibit A pages1457 65). It is also consistent with Mr Yeldon's letter to Ms Oldfield of 12 August 2009 (Exhibit A page 1718 - 1721). The Tribunal therefore concludes that the Committee was correct in deciding that there is no likelihood that either practitioner would be found guilty of professional misconduct or unsatisfactory professional conduct in respect of this complaint.
The applicant further complained that Ms Oldfield had engaged expert witnesses contrary to her instructions. However, the Committee accepted Ms Oldfield's explanation that she merely made preliminary enquiries to the availability of expert witnesses and the likely cost of engaging them. Given counsel's recommendation that expert evidence would be required (Exhibit A pages 1718 1721), the Committee accepted Ms Oldfield's version of events.
The Tribunal again considers that Ms Oldfield's version of events is more likely and the applicant has been unable to persuade us otherwise. The Tribunal therefore concludes that the Committee's decision in this regard is correct.
The applicant also complained that Mr Yeldon pressured her into engaging expert witnesses contrary to her wishes. There is no doubt that counsel's view was that expert evidence would be required, but we have seen no evidence of any threats to her or pressure being applied. It is open to counsel to decline to act if his advice is not accepted and the correspondence which we have seen in this regard is measured and courteous. He spoke well of the applicant in his letter to Ms Oldfield of 12 August 2009 (Exhibit A pages 1718 - 1721).
The Committee concluded in regard to the complaints against Mr Williams, Ms Oldfield and Mr Yeldon that it was not satisfied that there was any reasonable likelihood that any of those practitioners would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct.
The Tribunal considers that this decision is supported by the evidence which the practitioners produced when they responded to the allegations. The Tribunal does not consider that the applicant has demonstrated that the Committee's decision is incorrect or attended with doubt.
The Committee found that the complaints against Ms Oldfield, Mr Williams and Mr Yeldon the subject of the applicant's application for review were all unreasonable, and in one case vexatious. Leave is therefore required. The Tribunal considers that it has not been shown that the Committee's decision in relation to any of the complaints against these practitioners is wrong or attended with sufficient doubt to justify the grant of leave. Accordingly, leave is refused.

Ms Savas and Mr Bower

We turn now to the complaints against Ms Savas and Mr Bower. The applicant's complaint against counsel appointed by Ms Savas and Mr Bower is not the subject of her application for review.
Ms Savas and Mr Bower acted for the applicant between August 2009 and August 2010.
The complaints against these two practitioners are generally that they failed to adequately advise her. In particular, the applicant says that Ms Savas and Mr Bower did not comply with her instructions with regard to the removal of the caveat and she also complained about overcharging.
Turning first to the issue around the caveat, the Committee dealt with this in much the same way as they dealt with the corresponding complaint against Mr Williams and Mr Oldfield. However, the applicant pointed out at the first day of the hearing that her complaint in this case was somewhat different. She then went on to say that she asked Mr Bower 'specifically to examine the caveat'. She said she also asked him to consider whether there was 'any other way of having the caveat removed without going to trial'. (T:76; 20.03.13). She told the Tribunal that she did not receive that advice. The Tribunal then asked the Committee to review this matter with a view to ascertaining whether that complaint has been properly understood and adequately addressed. The Committee did so and confirmed at the second day of the hearing that the matter had been fully investigated (T:23; 06.05.13).
It is unclear exactly what the applicant's earlier instructions were to Mr Bower and Ms Savas. However, on 25 August 2010, by which time relations between the applicant and the practitioners had obviously become strained, the applicant wrote to Mr Bower and Ms Savas by email (Exhibit A pages 1791 1794). In that email, she says:
My instructions to Chau Savas in August 2009 were straight forward. I engaged her to take action to have the caveat off my Boddington property removed. [sic]
The Tribunal's conclusion is that the practitioners were instructed to proceed on the basis set out in the applicant's email and there is nothing to suggest that they did not comply with the applicant's instructions. That would have included a consideration of how best to deal with the caveat and it is reasonable to infer that they, like Ms Oldfield and Mr Williams before them, decided that the correct approach was to deal with the matter in the Supreme Court. This is apparent from the terms of Ms Savas' letter to the applicant dated 26 July 2010 (Exhibit A pages 1784 1786).
The Tribunal agrees with the Committee's decision that there is no reasonable likelihood that any of those practitioners would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct in respect of this complaint.
Turning now to the complaint against Ms Savas and Mr Bower about overcharging and failing to provide documents, the Committee formed the preliminary view that there was no evidence of overcharging, but noted that this is also the subject of taxation proceedings brought by the applicant. The Committee in its final response to the applicant confirmed that in the event that those proceedings provide evidence of overcharging then the Committee advised the applicant that it would be prepared to open a new investigation of that complaint. This complaint was therefore not dealt with by the Committee and accordingly the Tribunal does not consider that this complaint forms part of this review. The applicant appears to have accepted this (T:102; 20.03.13).
The applicant further complained that Ms Savas failed to act on or acted contrary to her instructions by contacting prospective expert witnesses and by failing to make a 'Calderbank' offer to the plaintiffs in the proceedings. The Committee dismissed this complaint, noting that again there was a conflict of evidence with regard to the applicant's instructions. The documents which had been provided supported Ms Savas' position that she was instructed to make preliminary enquires with regard to expert witnesses and then seek further instructions. Ms Savas also said that she did not have clear instructions to make a 'Calderbank' offer.
The applicant has not demonstrated that the Committee's decision is wrong or attended with sufficient doubt. In particular, the letter dated 16 February 2010 and the extract from an email dated 5 March 2010 (Exhibit A pages 2066 2067) do not establish that the applicant had given such instructions. In fact, the applicant's email, undated, to Ms Savas (Exhibit A pages 2064 2065) suggests the contrary, namely that the applicant had 'decided to stay with the original offer'. Accordingly, we consider that the Committee is correct in its conclusion that there is no reasonable likelihood that the Tribunal would make a finding of professional misconduct or unsatisfactory professional conduct against Ms Savas in this regard.
The Committee also considered the applicant's complaint that Ms Savas unduly delayed obtaining a springing order against the plaintiffs in respect of their failure to provide a discovery on oath. This complaint arose, in the Committee's view, out of the applicant's failure to understand Ms Savas' obligation to give notice to the plaintiff's solicitor of her intention to seek a springing order. The Committee was satisfied that no blame could be attributed to Ms Savas for the delay in contacting the plaintiff's solicitor. They also noted that a springing order was subsequently obtained and that the plaintiffs had complied with that order.
The Tribunal considers that this finding is correct.
The applicant further complained to the Committee that Ms Savas failed to file and serve her witness statement as instructed. Although the Committee made findings in respect of this complaint and it was the subject of the applicant's application for review, the applicant informed the Tribunal at the hearing of this matter that this complaint was not in fact in connection with her witness statement but should have been in connection with her defence and counterclaim. She said there was no complaint against Ms Savas for failing to file and serve the applicant's witness statement (T:128; 20.03.13). The complaint has therefore not been dealt with by the Committee and cannot be the subject of a review.
In regard to the applicant's complaint that Ms Savas acted in an oppressive or intimidating way when she recommended that the applicant accept a settlement by making a cash offer to the plaintiffs, the Committee found no evidence of such behaviour. The applicant was unable to provide any further evidence in this regard and the Tribunal agrees with the Committee. We consider that there is no likelihood that the practitioner in this case would be found guilty by the Tribunal of professional misconduct or unsatisfactory professional conduct in respect of this complaint.
The applicant also complained generally to the Committee about Ms Savas' behaviour, but the Committee noted that the applicant did not give any further details of this complaint. The Committee therefore considered that there was no reasonable basis for these allegations and the Tribunal is in agreement.
The Committee, in conclusion, dismissed the complaints against Ms Savas and Mr Bower (other than the complaint of overcharging) because it was not satisfied that there was any reasonable likelihood that either of those practitioners would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct.
Of the complaints which they dealt with, and therefore excluding the complaint of overcharging, the Committee specifically found that each of the complaints was unreasonable. This again means that leave is required from this Tribunal.
The Tribunal does not consider that it has been shown that the Committee's decisions were wrong or attended with sufficient doubt to justify the grant of leave and accordingly leave is refused.

Mr Dunnell and Mr Taylor

We turn finally to the complaints of the applicant made against Mr Dunnell, Mr Taylor and Mr Holler. The applicant has limited her application to a review only of the decision which the Committee made about her complaints against Mr Taylor and Mr Dunnell.
Those complaints alleged generally that the two practitioners concerned engaged in unsatisfactory professional conduct or professional misconduct by failing to adequately advise the applicant in respect of the caveat and of overcharging.
Dealing first with the complaint of overcharging and failing to produce documents when requested to do so, the Committee formed a preliminary view that there was no reasonable likelihood that either of the practitioners would be found guilty of unsatisfactory professional conduct or professional misconduct on this ground. Once more, however, the Committee noted that this particular complaint was the subject of taxation proceedings. The Committee has confirmed that if the decision in those proceedings provides evidence of overcharging then the Committee would be prepared to open a new investigation. We have concluded that this complaint has therefore not dealt with by the Committee. Accordingly the Tribunal does not consider that this complaint can be the subject of a review.
The complaints which the Committee did deal with and which are the subject of the application for review are that:
•the two practitioners failed to advise the applicant of the deficiencies in the statutory declaration which supports the caveat and failed to have the caveat removed 'administratively';
•Mr Dunnell acted without instructions in amending the applicant's defence and counterclaim;
•both practitioners failed to act on the applicant's instructions to apply for a springing order;
•Mr Taylor failed to identify in good time the need for and to brief alternative counsel;
•the practitioners failed to pursue the applicant's counterclaim and Mr Dunnell failed to file the applicant's counterclaim; and
•Mr Dunnell harassed the applicant in relation to the preparation and filing of a Minute of Proposed Orders following the decision of the Court in October 2011.
The Committee considered the complaint that Mr Dunnell and Mr Taylor failed to advise the applicant adequately as to the validity or otherwise of the caveat lodged against the title to her property. The Committee's findings in that regard were that the applicant's complaint was misconceived. The caveator, having been given notice under s 138B of the TLA Act, had commenced proceedings in the Supreme Court to maintain the caveat. The time for approaching the Registrar of Titles to have the caveat removed, even if that were an appropriate course of action in the circumstances, had long since passed.
The applicant once more explained to the Tribunal that her complaint was not only about any failure on the part of the practitioners to have the caveat removed. Her complaint was that she had sought advice on the subject and had not received it.
Again, the Tribunal queried the Committee as to whether or not this complaint had been investigated. The Committee informed the Tribunal that the matter had in fact been investigated and the complaint was found to be without substance.
We have not seen any written advice from the practitioners to the applicant in respect of the information which she was seeking from them. However, equally there is nothing to suggest that the advice in question was not given orally and, indeed, it seems to be a simple issue. The applicant had already received advice from other practitioners that the caveat was valid, in the sense that it had been accepted by the Registrar and registered against the title to the applicant's property. They advised her that the appropriate process was the one being followed, namely to defend the proceedings in the Supreme Court.
We do not consider that the Committee's decision in respect of this complaint is wrong or attended with doubt. We agree with the Committee that there is no likelihood that the Committee would be successful if it brought the complaint to the Tribunal for a finding of professional misconduct or unsatisfactory professional conduct. The evidence would simply not support such an allegation to the necessary standard.
The applicant's complaint that Mr Dunnell acted without instructions in amending the applicant's defence and counterclaim in the Supreme Court proceedings was also considered by the Committee to be unfounded. At the hearing, the applicant explained that her concern was that the defence and counterclaim had been altered after the Supreme Court proceedings had been concluded (T:17; 06.05.13). The applicant considers that the reason for the practitioner so doing was to justify his costs in this matter.

Mr Dunnell explained that he had at the request of the applicant at various stages printed out new copies of the defence and counterclaim. He said that on each occasion when he did so, his computer automatically updated certain dates and other details within the document and he speculated that this is why the applicant considered that the document had been changed. The applicant dismissed this explanation, saying that she had some expertise in computer systems and that it was simply not possible for this to occur (T:21; 06.05.13).
The issue of the practitioners' charges, as we have already mentioned, is before the Court for taxation. To the extent that the applicant is complaining that the practitioners have been falsifying documents in order to justify their charges, the Committee considered that this allegation will be covered as part of the taxation process and could be the subject of a new complaint. The Committee did not give a decision on this complaint and it therefore cannot be subject to a review.
With regard to the applicant's complaint that Mr Dunnell and Mr Taylor failed to act on her instructions to apply for a springing order when she asked them to do so, the Committee was satisfied that the practitioners had acted in what they considered to be the best interests of the applicant by not applying for such an order, simply because they believed that such an application would fail.
It should be said that, by this stage, the applicant was very familiar with expressions such as 'Calderbank offers', 'springing orders', and 'defence and counterclaim'. It is clear from the correspondence between the parties that the applicant by this time had made up her mind how the matter was to be progressed, thus making it somewhat difficult for the practitioners to act in her best interests but at the same time not appear to be obstructive (Exhibit A pages 250 253).
In any event, we consider that the practitioners' conduct was appropriate and, while their communication with the applicant was not ideal, they acted properly and professionally in representing what they considered to be the applicant's best interests. We do not consider that it is likely that an allegation of professional misconduct or unsatisfactory professional conduct in this regard could be made out.
In respect of the complaint that Mr Taylor had failed to identify in good time the need for and to brief alternative counsel, the Committee did not consider that there was any substance to this complaint. Mr Holler was the alternative counsel and he was available and immediately commenced work on the matter. We agree with the Committee that this complaint could not be sustained.
Turning to the alleged failure on the part of both Mr Dunnell and Mr Taylor to pursue (and, in the case of Mr Dunnell, failure to file) the applicant's counterclaim, the Committee noted that the practitioners were of the understanding that the applicant had abandoned her counterclaim for rent and damages. It is unclear whether the applicant had in fact abandoned her counterclaim, but the Committee was satisfied that Mr Dunnell and Mr Taylor believed that this was the case.
The Committee noted that, at trial, Mr Holler informed the Court in his opening address that the applicant was not intending to pursue her counterclaim and that the applicant did not seek to correct him.
The Committee did not consider that this complaint had been made out.
The applicant's response in her application to the Tribunal, and her submissions at the hearing, effectively reiterated that she did not instruct Mr Dunnell and Mr Taylor to abandon her counterclaim for rent and damages (T:39; 06.05.13). The Tribunal accepts that the applicant did not instruct Mr Dunnell and Mr Taylor to abandon her counterclaim. There is no evidence now before the Tribunal that this was due to anything other than a misunderstanding that the applicant had abandoned her counterclaim. The Tribunal is of the view that in the circumstances there is no reasonable likelihood that this misunderstanding is a basis upon which either practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct.
Finally, turning to the complaint that Mr Dunnell harassed the applicant in relation to the preparation and filing of a minute of proposed orders following the decision of the Supreme Court in October 2011, the Committee dismissed this complaint also. The Committee noted that Mr Dunnell denied any harassment and a review of the emails complained about do not indicate any such activity on the part of Mr Dunnell. Certainly, Mr Dunnell was seeking instructions from the applicant and appeared to be very concerned that the applicant fully understood his advice in this regard (Exhibit A pages 565 624). While the Tribunal accepts that the applicant had felt pressured by the practitioner's attention, it is clear that she did not understand the need on the part of the practitioner to have clear instructions. The Committee did not consider this complaint to be made out and the Tribunal agrees.
Aside from the complaint of overcharging, the Committee expressly found that each of the complaints against Mr Taylor and Mr Dunnell were, with one exception, unreasonable. The exception was in respect of Mr Dunnell and Mr Taylor acting contrary to the applicant's instructions with regard to the maintenance of her counterclaim.
The Tribunal considers that it has not been shown that any of the Committee's decisions in respect of the complaints against Mr Taylor and Mr Dunnell, which the Committee found to be unreasonable, are wrong or attended with sufficient doubt to justify the ground of leave. Accordingly, leave is refused.
We have already found that, in the case of the complaint that Mr Dunnell and Mr Taylor acted contrary to the applicant's instructions with regard to the maintenance of her counterclaim, the Tribunal does not consider that there is any likelihood that it would make a finding of professional misconduct or unsatisfactory professional conduct against either of those practitioners in respect of that complaint. The Tribunal affirms the Committee's decision in that regard.

Conclusion

In respect of the applicant's application for leave for a review of the Committee's decision under s 435(2) of the Legal Profession Act, the Tribunal concludes that it has not been shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave. Accordingly, leave is refused.
In respect of the applicant's application for a review of the Committee's decision in respect of the complaint against Mr Dunnell and Mr Taylor for acting contrary to the applicant's instructions with regard to the maintenance of her counterclaim, the Tribunal considers that the Committee's decision was the correct and preferable decision and that decision is affirmed.

Orders

The Tribunal makes the following orders:
1.In relation to the parts of the applicant's application which require the Tribunal's leave, leave is refused.
2.The application is otherwise dismissed.

I certify that this and the preceding [100] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT