CORP and WHYTE - [2013] WASAT 147

CORP and WHYTE [2013] WASAT 147

Last Update: 06/11/2013

CORP and WHYTE [2013] WASAT 147
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2013] WASAT 147
Act:	LEGAL PROFESSION ACT 2008 (WA)
Case No:	VR:215/2010, VR:216/2010	Heard:	25 JULY 2013
Coram:	JUSTICE J A CHANEY (PRESIDENT), MR M SPILLANE (SENIOR MEMBER), MS M CICCARELLI (SESSIONAL MEMBER)	Delivered:	06/09/2013
No of Pages:	30	Judgment Part:	1 of 1
Result:	Decision of the Legal Profession Complaints Committee set aside
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	ADRIAN CORP JAMES STIRLING WHYTE LEGAL PROFESSION COMPLAINTS COMMITTEE JAMES LINDSAY GLISSAN QC
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
Case References:	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
Orders:	On the application heard before President, Justice Chaney and Senior Member Spillane and Sessional Member Ciccarelli, on 6 September 2013, it is ordered that: 1. The matter is adjourned for directions to 10 am on 29 October 2013 in order to hear the parties as to appropriate orders.
Summary:	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. 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CORP and WHYTE

Details

AGLC: CORP and WHYTE [2013] WASAT 147
Case: [2013] WASAT 147
Decision Date: 6 SEPTEMBER 2013

CaseChat Overview and Summary

The case of CORP and WHYTE involves a legal practitioner, WHYTE, and the Legal Profession Complaints Committee (LPPC). The complaint against WHYTE related to unsatisfactory professional conduct, specifically concerning the practitioner's failure to attend the completion of a trial. This included a failure to notify the client or the instructing solicitor that the junior counsel would be absent from the trial. Additionally, the complaint addressed the practitioner's risk of being unable to return from interstate for the recommencement of the trial. The Legal Profession Uniform Law Application Act 2014 was invoked to review the decision of the LPPC.

The primary legal issues the court needed to determine were whether the conduct of WHYTE constituted unsatisfactory professional conduct as defined by the Legal Profession Uniform Law Australian Lawyers Alliance. This included assessing the severity and frequency of the failures, and whether the LPPC's decision to uphold the complaint was justified. The court also needed to consider whether the LPPC's decision was made in accordance with the principles of natural justice and whether the evidence presented was sufficient to support the findings.

The court found that the LPPC's decision was flawed due to procedural errors and a misinterpretation of the evidence. The court determined that the LPPC did not adequately consider the mitigating factors presented by WHYTE, such as the junior counsel's illness and the practitioner's efforts to mitigate the impact of the absence. Additionally, the court found that the LPPC did not provide WHYTE with an adequate opportunity to respond to the evidence presented. Consequently, the court set aside the LPPC's decision, concluding that it was not supported by the evidence and did not comply with the principles of natural justice.

Orders

Orders of the court

Decision of the Legal Profession Complaints Committee set aside

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.