| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : CORP and WHYTE [2013] WASAT 147 MEMBER : JUSTICE J A CHANEY (PRESIDENT) MR M SPILLANE (SENIOR MEMBER)
MS M CICCARELLI (SESSIONAL MEMBER)
HEARD : 25 JULY 2013 DELIVERED : 6 SEPTEMBER 2013 FILE NO/S : VR 215 of 2010 BETWEEN : ADRIAN CORP Applicant
AND
JAMES STIRLING WHYTE
First Respondent
LEGAL PROFESSION COMPLAINTS COMMITTEE
Second Respondent
FILE NO/S : VR 216 of 2010 BETWEEN : ADRIAN CORP Applicant
AND
JAMES LINDSAY GLISSAN QC
First Respondent
(Page 2)
LEGAL PROFESSION COMPLAINTS COMMITTEE
Second Respondent
Catchwords: Legal practitioners - Unsatisfactory professional conduct - Failure to attend completion of trial - Failure to notify client or instructing solicitor of absence of junior counsel from trial - Practitioners placing themselves at risk of being unable to retun from interstate for recommencement of trial Legislation: Federal Court of Australia Act 1976 (Cth), s 31A, s 31A(2)
Legal Practice Act 2003 (WA)
Legal Profession Act 2008 (WA), s 402, s 403, s 411, s 425(a), s 435, s 435(1), s 622, Pt 13
State Administrative Tribunal Act (WA), s 24 Result: Decision of the Legal Profession Complaints Committee set aside
Summary of Tribunal's decision: Mr Adrian Corp sought a review of a decision of the Legal Profession Complaints Committee to dismiss his complaints against two barristers, Mr James Glissan QC and Mr James Whyte on the basis that there was no reasonable likelihood of the practitioners being found guilty of unsatisfactory professional conduct. Mr Corp's complaint concerned the absences by counsel for the closing days of a lengthy criminal trial in respect of which the practitioners had represented Mr Corp. Their absences had come about as a result of their attendance at a professional development conference on Hayman Island. The practitioners had intended to return to Perth for the completion of the trial, which consisted of the judge's charge to the jury, but the filight on which they were booked to travel to Sydney in order to connect to a flight to Perth was delayed.
(Page 3)
A further complaint was that Mr Whyte had absented himself from the trial on the day prior to the conference on Hayman Island without notifying either Mr Corp or the instructing solicitor of that absence.
The Tribunal examined all of the circumstances which led to counsel's absence at the conclusion of the trial. It concluded that the Complaints Committee's decision in so far as it related to Mr Whyte's absence on the day prior to the conference, and the practitioners' conduct in putting themselves at risk of being unable to attend for completion of the trial should be set aside on the basis that there was a reasonable prospect that the practitioners would be found guilty of unsatisfactory professional conduct in those respects.
Category: B
Representation: VR 215 of 2010 Counsel:
Applicant : Mr D Grace QC and Mr M Bruce
First Respondent : Mr P Quinlan SC and Mr J Morris
Second Respondent : Ms P Le Miere
Solicitors:
Applicant : Bennett & Co
First Respondent : DLA Piper Australia
Second Respondent : Law Complaints Officer
VR 216 of 2010 Counsel:
Applicant : Mr D Grace QC and Mr M Bruce
First Respondent : Mr SM Davies SC and Ms KR Lendich
Second Respondent : Ms P Le Miere
Solicitors:
Applicant : Bennett & Co
First Respondent : Blake Dawson
Second Respondent : Law Complaints Officer
(Page 4)
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Case(s) referred to in decision(s):
Greenwood and Legal Professional Complaints Committee [2010] WASAT 31
Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56
Neil and Legal Profession Complaints Committee [2010] WASAT 39
O'Halloran v Legal Profession Complaints Committee [2013] WASCA 59
Smith v The Queen [2008] WASCA 128
Spencer v The Commonwealth of Australia (2010) 241 CLR 118
(Page 5)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 On 7 October 2010, the Legal Profession Complaints Committee (Complaints Committee) advised the applicant, Mr Adrian Corp, that it had resolved to dismiss his complaints against two practitioners, Mr James Lindsay Glissan QC and Mr James Stirling Whyte. In each case, the Complaints Committee resolved to dismiss the complaints because it was satisfied that there was no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct. Mr Corp then applied to this Tribunal for a review of those decisions pursuant to s 435(1) of the Legal Profession Act 2008 (WA) (LP Act). Resolution of the review proceedings has taken some time in part because of a lengthy process of mediation which ultimately proved unsuccessful, and delay in the hearing of the matter to await the outcome of related proceedings brought by Mr Corp against Mr Whyte and Mr Glissan in the Supreme Court of Western Australia. 2 During the course of that process, some of the complaints originally made by Mr Corp against the two practitioners fell away. By the time the matter was heard, the substance of Mr Corp's complaint which he wished to pursue was that, at a criminal trial in the District Court between 6 August 2007 and 4 October 2007 each of Mr Glissan and Mr Whyte engaged in unprofessional or unsatisfactory conduct by failing to attend at the end of the trial to represent Mr Corp by reason of having travelled to the Whitsunday Islands and remaining in that location without taking any adequate steps to ensure that their absences would not prejudice Mr Corp's interests. In the case of Mr Glissan, the complaint was that he failed to attend the trial between 2 October and 4 October 2007. In the case of Mr Whyte, the complaint was that he failed to attend the trial on 28 September and 2 4 October 2007.
The test to be applied 3 The approach by the Tribunal to its task of review pursuant to s 435 of the LP Act is now well settled. The functions and discretions of the Tribunal under s 435 are limited to the functions and discretions exercisable by the Complaints Committee, and do not extend to making findings and imposing penalties in the way that the Tribunal can do in its original jurisdiction - Neil and Legal Profession Complaints Committee [2010] WASAT 39 at [66] [67]. The function to be performed by the Tribunal is to determine whether it is satisfied that there is no reasonable (Page 6)
likelihood that the practitioners would be found guilty of either unsatisfactory professional conduct or professional misconduct. It is not the task of the Tribunal in a review under s 435 to make any finding as to whether the practitioners are guilty of either unsatisfactory professional conduct or professional misconduct. 4 There was a divergence in the submissions of the parties in these proceedings as to the test which should be applied by the Tribunal in determining whether it is satisfied that there is no reasonable likelihood of a finding of guilt. 5 The applicant noted the observations of the Tribunal in Greenwood and Legal Professional Complaints Committee [2010] WASAT 31 at [27] [29] where the Tribunal said: 27 The meaning of the phrase 'reasonable likelihood' in the context of s 425 of the LP Act is synonymous with the phrase 'reasonably likely'. The meaning of that phrase was discussed in Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 at [842] (Marks J, Young CJ and Teague J agreeing) in the following passage: The relevant expression here is 'reasonably likely' which has some analogy to 'fair probability'. It suggests the mathematical approach; the word 'reasonably' being a qualification of 'likely', alternatively, a measure in colloquial language of the likelihood. The expression 'reasonably likely' is substantially idiomatic, its meaning not necessarily unlocked by close dissection. In its ordinary use, it speaks of a chance of an event occurring or not occurring which is real – not fanciful or remote. It does not refer to a chance which is more likely than not to occur, that is, one which is 'odds on' or where between nil and certainty it should be placed. A chance which in common parlance is described as 'reasonable' is one that is 'fair', 'sufficient' or 'worth noting'. 28 Those observations are equally apt to describe the meaning of 'reasonable likelihood' in s 425 of the LP Act. 29 In considering whether there is a reasonable likelihood that a practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct, it is also necessary to bear in mind the Tribunal's approach to the proof of matters referred to it under s 428(1) of the LP Act. It is well recognised that the consequences for a practitioner of an adverse determination are (Page 7)
such that clear and cogent evidence will be required before a finding of unsatisfactory professional conduct or professional misconduct is made: Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42 at [63]. That follows from the fact that although the standard of proof is on the balance of probabilities, nevertheless the Tribunal must feel an 'actual persuasion' of the occurrence or existence of a relevant fact in determining whether or not conduct of that kind has been made out: Briginshaw v Briginshaw(1938) 60 CLR 336at 361 to 362 (Dixon J). 6 Having acknowledged those observations, the applicant argues that the appropriate approach for the Complaints Committee (and in its place the Tribunal) in determining the reasonable likelihood of an adverse finding is to act on the version of evidence most favourable to the complainant, provided that there is a real, and not fanciful prospect of that version being sustained in a subsequent fully contested hearing. It is submitted that that approach reflects the analogy between the fact finding exercise mandated for the purpose of summary judgment applications under most rules of court, and the fact finding exercise required of the Complaints Committee in the exercise of its power of dismissal found in s 425(a) of the LP Act. 7 Attention is drawn by the applicant to the High Court's decision in Spencer v The Commonwealthof Australia (2010) 241 CLR 118 which considered the expression 'no reasonable prospect of successfully prosecuting the proceeding' found in s 31A of the Federal Court of Australia Act 1976 (Cth). In their joint judgment, Hayne, Crennan, Kiefel and Bell JJ warned that 'the judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like ''no reasonable prospect'' is to be avoided'. Rather, 'full weight must be given to the expression as a whole'. They accepted, as did French CJ and Gummow J, that s 31A(2) was not limited in terms to the traditional bases for striking out claims and summary judgment. French CJ and Gummow J said that s 31A(2) requires a practical judgment as to whether the applicant has more than a 'fanciful' prospect of success. 8 The respondents argued that tests applicable to summary judgment proceedings under various rules of court had no application to the decision to be made under s 425 of the LP Act. Rather, they argued, the task is akin to the task undertaken by prosecuting authorities in assessing whether there are reasonable prospects of conviction in relation to a proposed charge. (Page 8)
9 Although the Complains Committee took the approach of (appropriately) abiding the decision of the Tribunal and making no submissions on the merits of the review, it did assist the Tribunal by providing a copy of 'Guidelines' published on 7 May 2013 in relation to disciplinary applications which come before it. Whilst those guidelines were not published at the time the Complaints Committee dealt with Mr Corp's matter, they set out the approach which the Complaints Committee considers appropriate in dealing with complaints under s 425 of the LP Act. The guidelines note that the Complaints Committee may dismiss a complaint if satisfied there is no reasonable likelihood that the practitioner would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct, which it refers to as the 'reasonable likelihood test'. Clause 5 of the guidelines describes the 'reasonable likelihood test' as follows: In deciding whether or not the reasonable likelihood test is satisfied, the LPCC will consider the strength of the case against the practitioner and whether it would satisfy the requisite standard of proof. In particular, it will evaluate: • the availability of evidence; • the admissibility of the evidence; • the strength of the evidence; • the competency, reliability and availability of witnesses; • whether there are lines of defence that might be raised. The standard of proof applied by SAT is the civil standard - balance of probabilities. However, in evaluating evidence in vocation proceedings involving legal practitioners, SAT applies the Briginshaw approach. That is, SAT must feel an actual persuasion of the occurrence or existence of the relevant fact before being satisfied that an allegation against a practitioner has been made out. 10 In our view, the approach suggested by the respondents, and reflected in the Guidelines now applied by the Complaints Committee, is to be preferred. Satisfaction as to the reasonable likelihood of an adverse finding requires more than identifying whether or not a prima facie case exists, taking the evidence of a complainant at its highest. A prima facie case is a necessary but not sufficient element of an assessment as to the reasonable likelihood of an adverse finding. Achieving the necessary satisfaction involves, in addition, a judgment as to the prospects of (Page 9)
success of the complaint. The evaluation of the matter set out in the Complaints Committee's guidelines enable that judgment to be made. 11 Because the number of allegations against the two practitioners was narrowed during the course of the proceedings before the Tribunal, an order was made at a directions hearing in April 2013 that Mr Corp was to file and serve a statement of the precise allegations the subject of his complaint to the Complaints Committee which he now pursues. He complied with that direction, identifying the complaints against Mr Whyte and Mr Glissan in the way described above. We do not consider that, in determining whether there is a reasonable likelihood of an adverse finding against either of the practitioners, that the Tribunal is limited to considering whether a complaint in the precise terms identified by the complainant is reasonably likely to succeed. What is necessary is that the Complaints Committee has made a decision on the substance of the complaint which is then open to review. If the Complaints Committee has not considered the substance of the complaint, then it will have made no decision, and it is not open to the Tribunal to deal with some fresh matter of complaint. In this case, Mr Corp's complaint as to the practitioners being absent from the final days of his trial and the circumstances in which that occurred is a matter which the Complaints Committee did consider, and upon which it made a decision. If there is a reasonable likelihood of a finding of unsatisfactory professional conduct or professional misconduct arising from the circumstances examined by the Tribunal (and before that the Complaints Committee) the precise particularisation of the allegation which might lead to that finding is a matter for the Tribunal (or in first instance the Complaints Committee). The particularisation of the precise complaint is not fettered by the way in which a complainant may frame his or her complaint.
The practitioners' absence from the last days of trial 12 The materials submitted to the Tribunal for the purposes of the review comprised the bundles of documents provided by the Complaints Committee pursuant to s 24 of the State Administrative Tribunal Act 2004 (WA), further bundles of documents provided by the parties, affidavits by Mr Corp, solicitors assisting him and an affidavit of Mr Glissan, and some other documents tendered during the hearing. From those documents the following emerges. 13 In 2004, Mr Corp engaged a solicitor, Mr Hayden Robinson to act for him in connection with an indictment containing 48 serious and (Page 10)
complex counts alleging breaches of Commonwealth laws by Mr Corp and his coaccused Mr Smith. 14 In May 2007, Mr Robinson engaged Mr Glissan to appear as senior counsel and Mr Whyte to appear as junior counsel for Mr Corp at the trial of the indictments. Costs agreements were signed which, in the case of each barrister, contemplated that legal services would be provided for specified periods 'reading brief to material and preparation', and in each case nine weeks for appearing at the hearing from 6 August to 5 October 2007. Total fees for the two barristers were estimated at $566,250, which Mr Corp paid into Mr Robinson's trust account prior to Mr Robinson entering the costs agreements with Mr Glissan and Mr Whyte. 15 The trial commenced on 6 August 2007 with Mr Glissan and Mr Whyte representing Mr Corp. Mr Corp's coaccused was represented by the late Mr Stephen Shirrefs SC and Mr Massey. 16 Mr Glissan and Mr Whyte were scheduled to speak at a conference organised by the Chambers for 29 September 2007 on Hayman Island off the Queenslsand coast. According to Mr Glissan, that presentation (interestingly entitled 'Solicitors and how to cope with them - Practice Management') was arranged some 10 months in advance of the conference. Mr Glissan produced a bundle of documents, including a statement by his wife, who is apparently also his Practice Manager, concerning the flight arrangements in relation to that conference. Those documents show that, on 22 August 2007, Mrs Glissan made a booking for Mr Glissan, along with herself and their two children, to fly from Sydney to Hamilton Island at 6.55 am on Friday 28 September 2007. A return flight from Hamilton Island to Sydney was also booked for Friday 5 October 2007 for Mr Glissan. It is apparent that, in order to get to Hayman Island where the conference was to be held, it was necessary to fly into Hamilton Island and then to travel to Hayman Island by boat, or perhaps helicopter. 17 The conference programme produced by Mr Glissan shows that the conference was to be held between 1 pm on Saturday 29 September 2007, and concluding at 1 pm on Sunday 30 September 2007. Mr Glissan and Mr Whyte's paper was due to be delivered at 11.10 am on Sunday 30 September 2007. It is apparent, therefore, that Mr Glissan intended to combine the conference with a week long holiday. Notwithstanding that Mr Corp's trial was listed to be concluded by 5 October 2007, Mr Glissan (Page 11)
said that by the date that the booking was made (22 August 2007) he expected that the trial would be concluded by 28 September 2007. 18 Mr Corp said that in late August 2007, he formed a view that he should dispense with the services of Mr Whyte and that Mr Robinson should assume the role of junior counsel to Mr Glissan. He said that he had reservations as to the value derived from Mr Whyte's services. He spoke to Mr Whyte on Saturday 25 August 2007 and told him that, for costs conserving reasons, he was dispensing with Mr Whyte's services. According to Mr Corp, Mr Whyte said that he and Mr Glissan were very close and that Mr Glissan would not be happy, which Mr Corp took to be a suggestion that Mr Glissan might resign if Mr Whyte's services were dispensed with. Nevertheless, Mr Corp told Mr Whyte that he no longer required his services. 19 On the following Monday, 27 August 2007, Mr Corp was provided with a memorandum prepared by Mr Glissan and entitled 'Opinion: The Trial of Adrian Corp'. That document identified that 'a significant issue' had arisen which was likely to 'seriously impact on' the trial's satisfactory conclusion. That issue was the decision to terminate the services of Mr Whyte and have Mr Robinson act as junior counsel. Mr Glissan recorded his disapproval of that decision whilst acknowledging his continuing obligation to represent Mr Corp at trial. The memorandum invited Mr Corp's reconsideration of his decision. The memorandum referred to the fact that Mr Whyte was undertaking 'a number of complex and important matters of preparation for the trial at [Mr Glissan's] direction'. The memorandum suggested that Mr Glissan's fees were likely to increase if he did not have Mr Whyte's assistance and that therefore the decision was likely to substantially increase the costs of trial. The memorandum continued: The effect on Atmosphere and the Co-accused. This is a matter which I understand has already been broached by Mr Shirrefs SC, who appears for the coaccused, Mr Smith. Mr Whyte not only acted in the interlocutory matters, but it was he who empanelled the jury. Thus far he has been in court most days of the trial so far, now entering its fourth week. He has established a rapport with the jury, and with the court staff. This is not a matter to be lightly dismissed. His absence is likely to impact on the jury in a subtle way, even if explained, and it is trite to observe that in a criminal jury trial atmosphere is critical. In the case of some members of this young jury it may be observed that the impact of his departure is likely to be profound. (Page 12)
Case taken on basis of retainer of junior barrister. Any solicitor however well intentioned is not same thing as a competent junior, and not acceptable from a client perspective - especially where the solicitor is close to client and has lost objectivity. What is needed is independent thought and input. Moreover the incoming junior, whether solicitor or other must have a full commitment to attending to the trial and nought else until it is completed. I recommend that the decision be reconsidered. 20 According to Mr Corp, on the same day he was provided with that memorandum, Mr Robinson accompanied him during the lunch time adjournment of the trial and suggested that Mr Whyte was likely to sue for the balance of fees to the end of trial because of the termination of the brief and that therefore he may as well keep Mr Whyte on as it would cost the same whether or not he was there. Having considered Mr Glissan's memorandum and Mr Robinson's comments, Mr Corp decided to reverse his decision to terminate Mr Whyte's services. 21 On 23 September 2007, it was apparent that the trial would not be completed by 28 September. Accordingly, Mrs Glissan caused changes to the existing flight bookings for Hamilton Island to be made for the Glissan family so that they departed on Saturday 29 September rather than Friday 28 September. In addition, she made a booking for Mr Glissan to return on a Jetstar flight to Sydney on Monday 1 October (which was a public holiday in Perth) and then to fly with Qantas from Sydney to Perth at 7.20 pm that night. At the same time she made a booking for Mr Whyte to leave Perth at 12.45 am on Friday 28 September to fly to Sydney so that he could attend the conference on Hayman Island. She also booked Mr Whyte on the return flight from Hamilton Island to Sydney, and from Sydney to Perth at the same time as Mr Glissan on 1 October 2007. 22 By the conclusion of the day's trial on Thursday 27 September 2007, Mr Glissan had completed his closing address to the jury, and Mr Shirrefs was in the course of his closing address for Mr Smith. 23 It appears that Mr Whyte flew from Perth to Sydney on the flight in which he was booked that night, and at some point proceeded to fly to Hamilton Island and then travel on to Hayman Island. 24 According to Mr Corp, when he arrived at court on Friday 28 September, he noticed Mr Glissan was present but Mr Whyte was not. (Page 13)
He said he asked Mr Glissan during the morning recess where Mr Whyte was and was told that Mr Whyte had gone back to Sydney early for the long weekend. Mr Corp said that at no time prior to that conversation had Mr Whyte or anyone else, informed him that Mr Whyte would be absent, and no one sought his consent to Mr Whyte's absence. 25 In preparation for the hearing of this matter, Mr Corp's solicitors wrote to Mr Robinson, and posed various questions to him. Answers to those questions were provided by Mr Robinson. The first question asked was whether, before 28 September 2007, Mr Robinson was aware that Mr Whyte would not be appearing at Mr Corp's trial on that day. Mr Robinson responded that he was not, and that the first he became aware that Mr Whyte had not appeared at trial on that day was upon receipt of Mr Corp's solicitor's letter dated 1 July 2013. 26 In none of the materials submitted by Mr Glissan or otherwise before the Tribunal is there anything to contradict Mr Corp's assertion that he was not told that Mr Whyte would be absent on 28 September, or Mr Robinson's assertion that he knew nothing of that absence. 27 At the close of the day's hearing on 28 September 2007, Mr Corp's trial was adjourned to Tuesday 2 October, Monday 1 October being a public holiday. According to Mr Corp, at the end of the day's hearing on 28 September, Mr Glissan told him that he was taking his family to the Whitsunday Islands for the long weekend. Mr Corp said that at no time did Mr Glissan inform him that Mr Whyte would also be in the Whitsunday Islands nor did Mr Glissan intimate there was any possibility that he might not be back for the resumed trial on Tuesday. 28 According to records of airline departures from Hamilton Island obtained by Mr Corp, the flight on which Mr Glissan and Mr Whyte were booked on 1 October was due to depart Hamilton Island at 3.55 pm, arriving in Sydney at 6.40 pm. Their connecting flight from Sydney to Perth was due to leave at 7.20 pm. 29 In his affidavit, Mr Glissan said that he and Mr Whyte arrived at Hamilton Island Airport at 2 pm on 1 October 2007, having been transferred by motor launch from Hayman Island. They proceeded to check into their flight, but shortly after, were approached and informed by airline representatives that their scheduled flight was delayed due to mechanical problems and might be cancelled. They made various enquires of airline representatives as to other options, but were unable to identify any alternative flights which might enable them to reach Sydney (Page 14)
in time for their 7.20 pm connecting flight to Perth. Mr Glissan said that, by 4 pm it was clear that they would be unable to make their connecting flight that evening and there was still no certainty from airport staff that the flight to Sydney from Hamilton Island would depart at all. Mr Glissan said that Jetstar proceeded to return checked baggage for all waiting passengers, including Mr Whyte and himself. Airline staff suggested that passengers obtain accommodation on Hamilton Island until the next day. Mr Glissan said that 'sometime after that time' Mr Whyte and he discussed their options and decided to return to Hayman Island. They made that decision on the basis that: a) neither of them had accommodation available at Hamilton Island; b) both Mr Whyte and Mr Glissan had accommodation available at Hayman Island where their respective families had stayed on following the conclusion of the conference; c) the only transport available back to HaymanIsland was via a chartered helicopter which was not available after sunset; and d) as it was after 4pm, the decision had to be made quickly. 30 Accordingly, they returned to Hayman Island. 31 According to the records obtained by Mr Corp, the flight in fact arrived at 4.05 pm at Hamilton Island and departed at 6.40 pm and arrived in Sydney at 9.05 pm. Information on departures from Sydney obtained by Mr Corp suggests that a Qantas flight departed at 10.10 pm for Perth. 32 The information as to flight times obtained by Mr Corp is not consistent with information obtained by his solicitors on enquiries made to the airline. In response to those enquiries, the solicitors were advised that the flight on which Mr Whyte and Mr Glissan were booked from Hamilton Island to Sydney arrived at Hamilton Island at 6.46 pm and departed at 7.20 pm, arriving in Sydney at 9.23 pm. The delay in departure was therefore three hours and thirteen minutes. It appears that the flight was approximately 2 hours duration, so that it must have left Sydney for Hamilton Island at approximately 4.45 pm. 33 Accepting the times obtained by Mr Corp's solicitors as more likely accurate, which is reinforced by the fact that they are more consistent with (Page 15)
Mr Glissan's account of events, it is somewhat surprising that, as late as 4 pm, the airline would have been unaware of the likelihood of the flight departing from Sydney within the next hour. It is reasonable to conclude that, had Mr Glissan and Mr Whyte decided to wait at Hamilton Island until the situation with the flight was definitely confirmed, they would have been able to return to Sydney in time to catch the connecting Qantas flight at 10.10 pm to Perth. 34 According to Mr Glissan, he and Mr Whyte telephoned Mr Robinson at or around 4 pm on Monday 1 October 2007. Presumably, that is a reference to 4 pm eastern standard time, and not western standard time, although Mr Glissan does not expressly state that, and a file note prepared by Mr Robinson, who was in Western Australia, notes the time of the call from Mr Glissan at 4 pm, presumably a reference to western standard time. Mr Robinson said, in his response to Mr Corp's solicitors' questions, that he made the note at about 6.30 pm on 1 October 2007 of the telephone discussion which had occurred at about 4 pm that day when Mr Robinson was playing golf and was thus not then in a position to immediately record the discussion. 35 Whenever the call occurred, Mr Glissan and Mr Robinson agree that Mr Glissan told Mr Robinson that they would be unable to return to Perth in time for the start of proceedings on the morning of 2 October 2007 due to flight problems. 36 The evidence as to the decision that Mr Glissan not return to Perth contains inconsistencies. Mr Glissan says that, during the telephone call at 4 pm on 1 October 2007, he expressed to Mr Robinson his opinion that the expense of returning to Perth at a later time was disproportionate to the benefit of his attendance given the stage of the trial, but that he was prepared to do so if instructed by Mr Robinson. He then said that after he had returned to Hayman Island he had a number of lengthy conversations with Mr Robinson discussing the matter during which Mr Robinson instructed both Mr Glissan and Mr Whyte not to return. Mr Glissan said that agreement was reached that Mr Robinson would appear as counsel on 2 October, that Mr Robinson would address the judge in relation to count 35 of the indictment, in respect of which further submissions were required, and that Mr Whyte and Mr Glissan would provide Mr Robinson with notes for submissions on that count. 37 Mr Glissan said that, in reaching that agreement, he had it in his mind (Page 16)
• Mr Robinson's experience as counsel; • the fact that Mr Corp's coaccused was represented by experienced senior counsel who could take any necessary objections to the judge's charge; • that the judge had indicated that he would spend the Tuesday charging the jury; • that the jury would commence deliberations on Wednesday; and • the fact that the judge had heard argument about contentious parts of the address to the jury in preceding days and had ruled on those arguments. 38 Mr Glissan said that he had a further telephone discussion with Mr Shirrefs and with Mr Robinson on Tuesday 2 October 2007. 39 Mr Glissan and Mr Whyte subsequently provided Mr Robinson with notes for submissions on count 35. 40 Mr Robinson's account is that he unsuccessfully attempted to contact both Mr Glissan and Mr Whyte before finally speaking to Mr Whyte at 10.45 am on 1 October for the purpose of discussing aspects of the trial. Mr Robinson's notes of that conversation suggests that Mr Corp was concerned with aspects of the closing addresses, they being the matters which were to be discussed prior to commencement of the hearing on 2 October. 41 Mr Robinson says that the discussion which he had at 4 pm on 1 October with Mr Glissan was the first time he became aware that Mr Glissan and Mr Whyte were not returning to Perth for the resumption of the trial. 42 Mr Robinson says that he had a further telephone discussion with Mr Glissan between 8.01 am and 8.25 am on 2 October 2007. That call was recorded in a handwritten file note which, according to a typed transcription of the note reads: (Page 17)
'Nothing to contribute'. Jury redirection? Be available on phone 'Dodd say AC turn up. SW say AC turn to check doc taken away. 'Will draft count 35. conference phone. 'Not that I don't want to attend. 'Can't do anything useful. Packup goods @ Duxton in storage. 43 There follows a further file note, apparently of a telephone conversation between Mr Robinson and Mr Corp which reads: 44 At 9.31 am on 2 October, Mr Whyte and Mr Glissan sent an email to Mr Robinson concerning matters related to count 35. An introductory note reads as follows: Here is my suggested response to the Hall request for a direction on the asserted errors of fact. Some matters are, as you will see, in the alternative, and depend on you looking at the transcript. If the judge decides to follow the Crown outline, not unlikely on the history of his decisions in the matter, the following will preserve any appeal point. James and I will over the next day or so attend to your instructions in relation to a prospective appeal. As advised in our earlier conversation today I will remain on the East Coast with James unless you otherwise instruct. Yours, Jim Glissan 45 Late that morning, Mr Robinson had a conference with Mr Shirrefs which is recorded in a file note apparently prepared later that day which reads: Conference with Steve Sheriffs [sic]. (Page 18)
He is aware Jim and James will not be in today but did not know they would be not coming back again. In response he says he will call Jim. Subsequently Steve says Jim told him I had instructed him not to come back to Perth and now it was too late to get a flight. He thinks this to be an egregious error. We again discuss this at about 4 pm on Tuesday. Steve says he is furious about this change with it being disadvantageous to Brian and Adrian. I say I also am unhappy but do not have control over this. Steve says Jim told him he had been sacked. I respond that it is not correct to the contrary I had asked Jim to draft an appeal notice. I say if Steve really thinks Jim to be imperative I am more than content to get him over but he says he can't do that because it's too late. Jim is on Hayman Island and there is only 1 flight per day out which is at 11.00 am so it's too late to do anything about it now. I inform Steve of the correct position being that on Tuesday morning Jim rang to tell me he didn't think he could contribute anything and wanted to save Adrian's money. I had made the point this was his call and Adrian was prepared to pay the money for Jim to attend. It was Jim's call not mine. I add this is all very unsatisfactory to me in the context of doing the best thing for Adrian. But there have been a number of things that have arisen which have caused disquiet. The jury address was not to our satisfaction. No mention was made of the money trail as an example. Steve responds he is aware of these things and knows about the address and that Jim had raised it with him but he simply couldn't put it into his address for Brian. Steve says the reference by the Judge to consciousness of guilt should be now the subject of an application to discharge the jury. I will think that over. END. (Page 19)
46 The reference to 'HRR call' in the file note of the conversation between Mr Glissan and Mr Robinson is apparently a reference to Mr Robinson, whose initials are HRR. That notation is inconsistent with the contents of the note of the conference with Mr Shirrefs which suggests that Mr Robinson asserted that it was Mr Glissan's call as to whether or not he returned to Perth, not Mr Robinson's. It may be that the transcription of Mr Robinson's handwritten note is an error, and that what is transcribed as 'HRR' may in fact be 'His'. To our eyes, the handwritten note appears more like 'His' than 'HRR', but we accept that the transcription was apparently made by Mr Robinson, so that on balance we would take the transcription as accurate, notwithstanding its inconsistency with Mr Robinson's note of his discussion with Mr Shirrefs approximately an hour and a half later. 47 The trial duly resumed on Tuesday 2 October 2007. There does not appear to have been any suggestion by anyone that an application might be made for an adjournment to enable counsel to attend. 48 According to Mr Corp, he arrived in court shortly prior to the commencement of the day's proceedings and was surprised to find Mr Robinson present in court, robed, but neither Mr Glissan nor Mr Whyte present. That assertion is inconsistent with the file note prepared by Mr Robinson to the effect that he had conveyed to Mr Corp the fact that Mr Glissan and Mr Whyte had been delayed on Hamilton Island in a telephone conversation earlier that morning. 49 After discussing with Mr Shirrefs and Mr Robinson whether the matter could proceed in Mr Glissan's absence, the trial judge continued his charge to the jury throughout Tuesday and the matter was adjourned to the following day to complete the charge. Mr Robinson represented Mr Corp for the balance of the trial. 50 On 3 October 2007, Mr Whyte sent a facsimile to Mr Robinson in which he made reference to a telephone conversation between Mr Robinson and Mr Glissan on the previous day, to the effect that Mr Whyte's 'services will not be required in Perth this week'. Mr Whyte expressed disappointment that he would not be at the trial and enclosed a memorandum of his fees which included a fee for a conference with Mr Glissan on 2 October regarding directions concerning count 35. 51 On 4 October 2007, the jury returned its verdict, finding Mr Corp guilty on 15 charges and acquitting him of six charges. (Page 20)
52 On 12 October 2007, Mr Corp was sentenced to three years imprisonment with a recognisance release order to take effect after 16 months in the sum of $20,000. 53 Mr Corp and Mr Smith appealed against their convictions, and that appeal was heard on 6 - 8 May 2008, with a decision delivered on 17 June 2008. All of the convictions were quashed, and in Mr Corp's case, verdicts of acquittal were entered on five counts and on the remaining 10, a retrial was ordered. No retrial ever proceeded. In relation to one of the grounds of appeal which was upheld, Miller JA observed: The trial judge's charge to the jury proceeded for the whole of the day of 2 October 2007 and for a substantial part of the day of 3 October. It seems almost inconceivable that in a summing up that proceeded over a period of three days, experienced senior counsel (of whom there were three in the court) could have missed the absence of direction by the trial judge of a fundamental requirement of a criminal trial. 54 See Smith v The Queen [2008] WASCA 128 at [266]. 55 By the time the convictions were quashed, Mr Corp had spent approximately eight months in prison. 56 Against that background, we turn to consider whether there is a reasonable likelihood of a finding of unsatisfactory professional conduct or professional misconduct against either or both of Mr Whyte and Mr Glissan by reason of their absence from Mr Corp's trial in its closing days.
Unsatisfactory professional conduct and professional misconduct 57 Unsatisfactory professional conduct is defined in s 402 of the LP Act as follows: 58 Professional misconduct as defined in s 403 of the LP Act as follows: (Page 21)
(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice. 59 The conduct complained of occurred before the LP Act came into force. Conduct of legal practitioners in Western Australia were then governed by the Legal Practice Act 2003 (WA) (2003 Act). The complaints made by Mr Corp were made after the LP Act came into force, and were made under the LP Act. That is permissible by reason that s 411 of the LP Act permits a complaint to be made about the conduct of a practitioner irrespective of when the conduct is alleged to have occurred. By reason of s 622 of the LP Act, Pt 13 applies in relation to conduct by practitioners regardless of whether the conduct occurred before or after the commencement of the LP Act. 60 The definitions in s 402 and s 403 of the LP Act set out above are inclusive definitions. The expressions include conduct previously described as 'unprofessional conduct'. That term was explained in Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 at [61] as conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or that, to a substantial degree fall short of the standard of professional conduct observed or approved by members of the profession of good repute and competence - see O'Halloran v Legal Profession Complaints Committee [2013] WASCA 59 at [10]. Whether such conduct amounts to unsatisfactory professional conduct or professional misconduct depends on the degree of seriousness of the conduct.
Mr Whyte's absence on 28 September 2007 61 It does not appear to be in dispute that Mr Whyte did not advise either Mr Corp or Mr Robinson of his intention not to be present in court on 28 September 2007 or the reason for that absence. 62 The Complaints Committee concluded that Mr Whyte's absence on 28 September was with the knowledge and consent of his leader. We (Page 22)
accept that, although neither Mr Glissan nor Mr Whyte gave specific evidence to that effect, that conclusion is likely to be found to be correct. Mr Corp's evidence is that he enquired of Mr Glissan during the morning break on 28 September about the whereabouts of Mr Whyte, and Mr Glissan explained that Mr Whyte had returned to Sydney for the long weekend. There is certainly nothing to suggest that Mr Whyte left Perth without Mr Glissan's agreement. 63 Counsel for both respondents submitted that it was sufficient that Mr Glissan consented to Mr Whyte's absence to answer Mr Corp's complaint. 64 Whether it is sufficient that (from a professional conduct perspective) senior counsel consents to junior counsel's absence from trial, without any consultation with the client (or even the instructing solicitor) raises the question as to the appropriate lines of instruction for counsel, and junior counsel in particular. Counsel for Mr Whyte argued that questions as to appropriate lines of instruction and communication will be answered differently depending upon arrangements applying in any particular case. He illustrated the point by noting that, in some cases, whole teams of lawyers are engaged on a matter, and some of those (usually more junior) lawyers may have no contact with the client at all and may be utilised entirely at the direction of a more senior member of the team. In the case of counsel, he noted that in some cases junior counsel is engaged as a requirement of senior counsel and will work at the direction of senior counsel. In other cases junior counsel may initially be briefed and have considerable contact with the client through, or in company with, the instructing solicitor, and senior counsel will be engaged for trial, but will have minimal contact with the client. 65 We accept that what might be reasonable and acceptable conduct in relation to methods and lines of communication between counsel and the lay client might vary from case to case. It is necessary, therefore, to examine the circumstances of the present case. 66 It is true that, as counsel for Mr Whyte submitted, Mr Whyte, at least from 27 August 2007, was engaged, as counsel put it, at the 'express request and moral insistance' of Mr Glissan. It is also reasonable to infer that, at least from that time onwards, there was a somewhat strained relationship between Mr Corp and Mr Whyte. It was also apparent that Mr White was engaged in tasks given to him by Mr Glissan which was alluded to in Mr Glissan's memorandum of 27 August 2007. That memorandum also suggests that Mr Whyte had 'been in court most days (Page 23)
of the trial so far', from which it might be deduced that he had not attended every single day of the trial. 67 Against that background, counsel for Mr Whyte argues that, Mr Glissan's address to the jury having been completed, and the specific tasks allocated to Mr Whyte having been completed, his presence at trial on Friday 28 September was not necessary, and the consequences of Mr Whyte's absence from trial so forcefully asserted in the August memorandum, would no longer be applicable. Thus, he argues, it was reasonable that Mr Glissan consented to his absence, and that Mr Whyte's acted on the strength of that consent alone. 68 In our view, Mr Whyte's absenting himself from the trial on 28 September 2007 without communicating with Mr Corp or Mr Robinson that he would be absent and the reasons for his absence gives rise to a reasonable likelihood that he would be found guilty of unsatisfactory professional conduct by the Tribunal. The reasons for that conclusion are as follows. 69 First, despite the suggestion that Mr Whyte's tasks were effectively complete, it is apparent that both Mr Glissan and he considered that there was a proper role for him to play for the balance of the trial, since it was proposed that he should return to the trial on Tuesday 2 October and remain until its completion. 70 Second, it is reasonable to conclude that the only reason Mr Whyte returned to Sydney was in order to enable him to travel to Hayman Island well in advance of his commitment to participate in the presentation of a paper. It may well have been that, if Mr Corp was consulted and told by Mr Whyte or Mr Glissan that Mr Whyte's presence was not necessary on the Friday, Mr Corp may have agreed. In our view, however, Mr Corp should have been given the opportunity to determine whether or not he wished Mr Whyte to be present. After all, Mr Whyte was engaged for the duration of the trial. The situation was different from one where junior counsel does not attend trial because he or she is undertaking out of court work on the brief. Here, Mr Whyte simply took what can only be described as a day of holiday. 71 Third, Mr Whyte (and for that matter Mr Glissan) appears to have given no consideration to how Mr Corp might perceive Mr Whyte's absence. Mr Glissan had emphatically stressed that Mr Whyte's presence at trial was necessary, and his absence from trial might have a detrimental effect on the jury. Counsel for Mr Whyte and Mr Glissan argued that, (Page 24)
given the stage the trial had reached, the considerations which previously required Mr Whyte to be present no longer applied. We do not consider that, even if that might be correct, it is reasonable for Mr Whyte and Mr Glissan to assume that that changed circumstance would be understood by Mr Corp. We consider it reasonably likely that, on the evidence before us, a Tribunal could conclude that members of the profession of good repute and competence would consider it necessary and appropriate to explain why it was not necessary for Mr Whyte to attend on the Friday and to seek the client's consent to that course. 72 Fourth, notwithstanding the apparently strained relationship between Mr Corp and Mr Whyte, we do not consider that the arrangements in relation to Mr Corp's representation at trial were such that Mr Whyte was entitled to act simply on the basis of his leader's consent without regard to the client's wishes and instructions. It is apparent from the evidence that Mr Robinson only very occasionally attended the trial. It is also apparent that Mr Corp was providing instructions to, and conferring with, Mr Glissan and Mr Whyte during the course of the trial. He was obviously a client who was prepared to express views as to how the case should proceed. Indeed, it is open to conclude on the materials that that wish to be involved proved something of a source of irritation to both Mr Glissan and Mr Whyte. In those circumstances, we do not consider that, on the materials we have reviewed, Mr Whyte was entitled to assume that he could come and go from the trial as he pleased subject only to Mr Glissan's consent. Having paid counsel hundreds of thousands of dollars, Mr Corp was entitled to determine whether his counsel should be relieved of the obligation to attend trial. 73 Finally, we do not consider it satisfactory conduct for counsel to absent himself from a hearing, at a time when the client must undoubtedly have been under great personal stress, without having the courtesy to mention his absence to the client. 74 For those reasons, we consider that the Complaints Committee's decision that there is no reasonable likelihood that Mr Whyte would be found guilty of unsatisfactory professional conduct in absenting himself from the hearing on 29 September 2007 should be set aside.
Mr Glissan and Mr Whyte's absence at trial on and after 2 October 2007 75 On this allegation, the Complaints Committee said, in relation to Mr Glissan: (Page 25)
With respect to the complaint that the practitioner absented himself from the trial at the stage of the trial judge's directions to the jury without reason or notice, there is evidence that the absence was due [to] the unexpected cancellation of a flight from a Whitsunday island on Monday 1 October 2007 which, had it not been cancelled, would have enabled the practitioner to reach Perth that evening in time for the resumption of the trial on Tuesday 2 October 2007 when the trial judge was to direct the jury. Given that the Court of Appeal allowed the complainant's appeals against his convictions and on some grounds of appeal found that the trial judge had erred in a number of his directions, this absence was significant. However, the complainant was represented at this time, albeit not under the most desirable circumstances. Other senior counsel who were well-experienced in the criminal law were appearing in the trial and did not request a redirection. While it may not have been foreseen that the practitioner's flight would have been cancelled, nevertheless the possibility that travel difficulties may have prevented the practitioner from returning to Perth in time for the trial's recommencement after a long weekend was clearly far greater from a location with a very limited number of flights per day and where he relied upon meeting a connecting flight to Perth. Such travel posed a far greater inherent risk to the trial than that involved in returning to Sydney every other weekend as had been the practitioner's habit throughout the trial. However, there is not sufficient in the conduct to constitute unsatisfactory professional conduct or professional misconduct. 76 In relation to Mr Whyte, the Complaints Committee accepted that his absence on 2 October was 'because mechanical fault in an aircraft caused cancellation of his flight', a fact over which the practitioner had no control 'albeit that the practitioner put himself in a position that entailed a heightened risk of disruption to scheduled travel arrangements for his return to Perth'. 77 There are two aspects of the failure to return to Perth which warrant consideration. The first involves an examination of the circumstances in which the practitioners' inability to travel to Perth in time for the resumption of trial arose. The second involves the examination of the circumstances surrounding the decision not to return to Perth at all. 78 Mr Corp contended that a number of matters pointed to unsatisfactory professional conduct (or possibly professional misconduct) in relation to the inability of Mr Whyte and Mr Glissan to reach Perth in time for resumption of the trial on 2 October 2007. 79 First, noting the observations of the Complaints Committee to the same effect, Mr Corp argues that both Mr Whyte and Mr Glissan knew, or ought to have known, that there was a risk that they may not be able to return to Perth in time for resumption of the trial as a result of booking (Page 26)
themselves on the last flight out of Hamilton Island. Mr Corp contends that it was unsatisfactory conduct to 'chance their arm' on being able to make it back to Perth. 80 Mr Corp observes that the conference timetable showed that their presentation was at 11.10 am on Sunday 30 September, with the conference completing in its entirety at 1 pm that day. The evidence produced by Mr Corp suggests that there were daily flights from Hamilton Island to Sydney, and he submits that the risk of difficulties could have been avoided by them arranging to leave Hamilton Island earlier than the last flight on Monday. 81 Second, Mr Corp argues that the practitioners made a serious error of judgment by leaving Hamilton Island to return to Hayman Island at 4 pm in circumstances where (despite what Mr Glissan initially said in his response to the Complaints Committee) the flight was not cancelled, but rather was delayed. He argues that it would have been possible for the practitioners to get back to Sydney that night, and obtain a flight either later that night or early the next morning to Perth. 82 Third, Mr Corp notes that there is no suggestion from either Mr Glissan or Mr Whyte that they made any attempts to find accommodation on Hamilton Island which would have enabled them to be available should the delayed flight subsequently arrive as it did. 83 In response, Mr Glissan relies on the following: i) Mr Corp knew, because on his own account MrGlissan told him as he left court on 29 September, that MrGlissan was going to the Whitsunday Islands for the long weekend; ii) There can be no doubt that, when MrGlissan left Perth, he intended to return on the Monday night. He had a flight booking to do so, and had left belongings at the hotel in Perth at which he had been staying; iii) On Monday 1 October, MrGlissan clearly intended to return to Perth. He travelled from Hayman Island to HamiltonIsland by boat, and then to the airport at Hamilton Island for that purpose; iv) He made the decision to leave the airport and return to Hayman Island in the bona fide belief that: (Page 27)
84 We have set out above the factors which Mr Glissan said they took into account in making the decision to return to Hayman Island at 4 pm see [29]. 85 The evidence is not entirely clear as to whether the first telephone call between Mr Glissan and Mr Robinson following the problems with the flight from Hamilton Island occurred before or after Mr Glissan left Hamilton Island to return to Hayman Island. Mr Glissan's affidavit would tend to suggest that the call was made from Hamilton Island, but he does not expressly say so. For present purposes we will assume that Mr Robinson was telephoned from Hamilton Island. Mr Glissan's evidence of that call is to the effect that he told Mr Robinson that he would be unable to return to Perth in time to commence the proceedings the next day and that he expressed an opinion that the expense of returning to Perth later was disproportionate to the benefit of his attendance. 86 It is clear, therefore, on Mr Glissan's evidence that he had made the decision not to return to Perth, although (at least later) he indicated that he would return to Perth if instructed to do so. By making the decision to return immediately to Hayman Island, Mr Glissan and Mr Whyte effectively placed themselves in a position where any chance of a return to Perth on 2 October was ended. While it can be accepted that Mr Glissan and Mr Whyte believed that the prospects of their flight leaving Hamilton Island that night were poor, their decision to return to their families on Hayman Island appear, on Mr Glissan's evidence, to have been made for reasons of their own convenience. There is no suggestion in the evidence that Mr Glissan or Mr Whyte made any enquiries as to the availability of accommodation on Hamilton Island. 87 In our view, there is a reasonable likelihood that the Tribunal might find that, by placing themselves at risk of inability to return for commencement of the trial by booking on the last available flight from Hamilton Island, and by then abandoning any prospect of return to Perth for the scheduled commencement of trial (possibly a delayed (Page 28)
commencement had they obtained a morning flight from Sydney on 2 October) Mr Glissan and Mr Whyte were guilty of unsatisfactory professional conduct. It cannot be ignored that both of those decisions were made in a context where the alternative to returning to Perth was to rejoin their families. It hardly needs to be said that clear priority should have been given to Mr Corp's interests and wishes, whether or not inconvenient to the practitioners. It is understandable that, according to Mr Robinson's note on 2 October 2007, Mr Shirrefs described Mr Glissan's absence as 'an egregious error'. 88 The second aspect of the failure to attend trial on and after 2 October 2007 concerns the decision not to return to Perth at all. The evidence supports the proposition that that was a decision taken during the telephone conversation between Mr Glissan and Mr Robinson early on the morning of 2 October 2007. We have referred above to the somewhat inconsistent evidence as to who might be said to have made that decision. Mr Glissan and Mr Whyte's position is that they were, in effect, instructed not to return to Perth by Mr Robinson. One suspects that it might be more the case that they, or at least Mr Glissan, told Mr Robinson that they would not return to Perth unless instructed otherwise. Whichever variation is accepted, it is clear enough that there were discussions between Mr Glissan and Mr Robinson on the question of the practitioners returning to Perth, and Mr Robinson accepted that they would not return and gave no instruction to them to do so. 89 In considering this aspect of the matter, it is necessary to put aside consideration of what Mr Corp no doubt contends were the actual consequences of counsel's absence during the trial judge's charge. It is necessary to consider what risks that decision might have posed, and to analyse the conduct in light of those risks. Whether or not the risks actually manifested themselves after the decision was taken is not a matter which informs the analysis of the proper characterisation of the conduct. 90 In our view, there is no reasonable likelihood that the arrangements made on the morning of 2 October 2007 which resulted in Mr Glissan and Mr Whyte not returning to Perth for the balance of the trial would be found by the Tribunal to amount to unsatisfactory professional conduct. The evidence supports the proposition that Mr Glissan was prepared to return to Perth if instructed, but that he formed a view based upon reasonable considerations that, in the circumstances, it was not necessary to preserve Mr Corp's interests that he do so, and that for him to return would have involved unnecessary expense for Mr Corp. It might be open to question whether that decision was appropriate, but it was a judgment (Page 29)
call based upon reasonable considerations and was subject to any instructions to the contrary. 91 The decision was taken in consultation with Mr Robinson. The precise extent of the consultation with Mr Corp in relation to the decision is somewhat unclear, and it would have been far preferable, if only as a matter of courtesy and concern for the client's wellbeing, if Mr Glissan had made arrangements to speak with Mr Corp to explain to him directly the rationale for the decision not to return. Notwithstanding that criticism, Mr Glissan having reached the arrangement in relation to the completion of the trial with his instructing solicitor, we do not consider it likely that the Tribunal would find him guilty of unsatisfactory professional conduct in relation the arrangements put in place for completion of the trial. It follows that there is also no reasonable likelihood of a finding of unsatisfactory professional conduct in relation to Mr Whyte's nonattendance at the trial from 2 October 2007 onwards. It seems quite clear that no suggestion was made by Mr Robinson that Mr Whyte should return to Perth after 2 October 2007.
Conclusion 92 For the foregoing reasons, we are of the view that the decision of the Complaints Committee that there is no reasonable likelihood of Mr Glissan or Mr Whyte being found guilty of unsatisfactory professional conduct in relation to: a) Mr Whyte's absence from Mr Corp's trial on 28 September 2007; and b) Mr Glissan and Mr Whyte's placing themselves in circumstances where they were at risk of being unable to attend the resumption of the trial on 2 October 2007, and travelling from Hamilton Island to Hayman Island at approximately 4 pm on 1 October 2007, thereby ending any chance of return to Perth for the resumption of the trial; 93 should be set aside. 94 The Tribunal will hear the parties as to the orders which should be made as a result of these reasons for decision. (Page 30)
Orders 1. The matter is adjourned for directions to 10 am on 29 October 2013 in order to hear the parties as to appropriate orders. |