Cuijpers and Legal Profession Complaints Committee - [2014] WASAT 131

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION: CUIJPERS and LEGAL PROFESSION COMPLAINTS COMMITTEE [2014] WASAT 131

MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
MR M SPILLANE (SENIOR MEMBER)
MS R MOORE (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 3 JULY 2014 (DELIVERED ORALLY)

PUBLISHED : 30 SEPTEMBER 2014

FILE NO/S: VR 136 of 2013

BETWEEN: FREDERICK JOHAN CUIJPERS
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
JOHN PARK
Second Respondent

Catchwords:

Legal practitioner Legal Profession Complaints Committee dismissing complaint Leave to seek review Principles to be applied Complaints found to be unreasonable Whether practitioner is likely to be found guilty of unsatisfactory professional conduct or professional misconduct

Legislation:

Legal Profession Act 2008 (WA), s 3, s 4(2)(b), s 402, s 403(1)(a), s 403(1)(b), s 404(b), s 425(1)(1), s 435, s 435(1)(b), s 435(2)
State Administrative Tribunal Act 2004 (WA), s 24

Result:

Leave refused
Application dismissed

Summary of Tribunal's decision:

Mr Cuijpers brought an application under s 435 of the Legal Profession Act 2008 (WA) for a review of a decision of the Legal Profession Complaints Committee to dismiss certain complaints he had made against Mr Park, a legal practitioner.
Mr Park had acted for Mr Cuijpers in proceedings in the Tribunal (VR 7 of 2011) when Mr Cuijpers had sought a review of an earlier decision of the Legal Profession Complaints Committee Mr Cuijpers had made against his previous solicitor, Mr Blyth. In the present matter, the Committee had found that some of the complaints were unreasonable and leave was required for those complaints.
In respect of the complaints found to be unreasonable, the Tribunal considered whether the decision to dismiss the complaint was wrong or attended with sufficient doubt to justify the granting of leave, and in respect of the complaints not found to be unreasonable, the Tribunal considered whether there was any reasonable likelihood that the practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct if the Committee had brought those complaints to the Tribunal.
The Tribunal decided that in respect of the complaints which the Committee considered to be unreasonable, the Committee's decision was not wrong or attended with sufficient doubt to justify the granting of leave and leave was refused.
As for the remaining complaints, they were either withdrawn or the Tribunal decided that there was no reasonable likelihood that the Tribunal would make a finding against the practitioner on the evidence, and the Committee's decision in respect of those complaints was affirmed and the application was dismissed.
This is an edited version of the transcript of oral reasons delivered by the Tribunal on 3 July 2014.

Category: B

Representation:

Counsel:

Applicant:     In Person
First Respondent           :     Ms D Mahiepala
Second Respondent      :     Mr G McIntyre SC

Solicitors:

Applicant:     N/A
First Respondent           :     Legal Profession Complaints Committee
Second Respondent      :     Park Legal Solutions

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

Chinnery and Legal Profession Complaints Committee [2013] WASAT 79
Cuijpers and Legal Profession Complaints Committee [2012] WASAT 87

REASONS FOR DECISION OF THE TRIBUNAL:

This is an edited version of the transcript of oral reasons delivered by the Tribunal on 3 July 2014.

Background

At the heart of Mr Cuijpers' (applicant) complaint against Mr John Park (second respondent or Mr Park) in this matter, is the conduct of Mr Park in representing the applicant in earlier proceedings before the Tribunal, namely Matter No VR 7 of 2011 delivered as Cuijpers and Legal Profession Complaints Committee [2012] WASAT 87 (VR 7 of 2011).
In that matter the following submissions dated 29 April 2011 were made setting out the background at that time, and stated:
These proceedings have their genesis in Magistrates Court of Western Australia Proceedings PE 1971 of 2004 between the current Applicant, Mr Cuijpers, as Defendant and Ms Keeler (deceased) as Claimant, in which Ms Keeler sought a Misconduct Restraining Order against Mr Cuijpers.
In those Magistrates Court proceedings Mr Cuijpers was represented by his solicitor, Mr Steven Blyth, the Second Respondent in these proceedings.
Both parties were residents in the same unit complex and formerly in a romantic relationship with each other.
The agent managing the unit complex was Moncrieff Realty. Sabina Moncrieff had retained Mr Cuijpers to look after the gardens at the unit complex and attend to small items of general maintenance. The alleged breach by Mr Cuijpers of the Restraining Order occurred whilst he was carrying out his handyman duties.
An issue at the Breach of Restraining Order Hearing was a letter dated 16 July 2004 apparently written by Sabina Moncrieff and sent to Mr Cuijpers.
…
At paragraph 15 of those submissions it further stated:
As a result of the relationship between Mr Cuijpers and Mr Blyth, Mr Cuijpers contacted the Legal Profession Complaints Committee (LPCC) in February 2006. He made a formal written complaint about the Second Respondent's professional conduct by a letter dated 12 April 2006 to the LPCC.
The second respondent in these proceedings acted for the applicant in VR 7 of 2011, which was a review of a decision of the Legal Profession Complaints Committee (respondent or Committee) to dismiss the applicant's complaint against Mr Blyth, the applicant's former solicitor in the Magistrates Court proceedings referred to.
The complaint the subject of these proceedings is the applicant's application to review the Committee's decision to dismiss the applicant's complaint against Mr Park in respect of Mr Park's handling of VR 7 of 2011 on behalf of the applicant.
It became clear through exchanges with the applicant at the hearing in this matter on 18 March 2014 that an important issue was the applicant's contention that Mr Park had failed to put particular documents before the Tribunal in VR 7 of 2011 which the applicant believed may have led to a different decision in that matter.
Both in the hearing on 18 March 2014 and in his written submissions, the applicant outlined what he was actually trying to achieve through these proceedings, and stated:
… [W]hat I want is … Mr Blyth to make things right. Mr Blyth was acting in those proceedings which prejudiced me and I was prejudiced further in criminal matters relating to it and it just seems to me the wisdom was for the first respondent to make him or order him to make things right. And you know, there was no need for VR 7 of 2011. There's no reason for VR 136 of 2013. There's absolutely no purpose to these proceedings because in the end, all it takes is for cooperation, mediation and for a settlement to be made. … (T:82; 18.03.14)
The Tribunal will comment on the issue of mediation later, as in his submissions dated 27 March 2014, the applicant stated:
The applicant requests alternative resolutions from the SAT should it be the decision no rehearing of VR 7 of 2011 is available.
What is before the Tribunal in the present proceedings, and what the Tribunal attempted to explain to the applicant, is the Committee's decision dismissing the applicant's complaint against the second respondent, not a review of VR 7 of 2011.

Complaint to the Legal Profession Complaints Committee

The complaint to the Legal Profession Complaints Committee was initiated by a letter of 22 October 2011 which set out a number of issues. By letter of 13 June 2013 the Committee wrote to the applicant outlining what the Committee saw as the complaints against the second respondent which were effectively what finally went to and were decided upon by the Committee and what are now before this Tribunal.
The applicant replied to the Committee's letter of 13 June 2013, who in turn replied to the applicant by letter of 18 June 2013, stating:
I will ensure that your email is before the Committee when it considers your complaint later this week. There is nothing in your email which requires a meeting with a legal officer to clarify. The 'changes' you have requested to your complaints do not go to the substance of your complaints; they merely seek to elaborate on the complaints as set out. I will ensure that those issues are addressed in the Committee's reasons for decision.
The Committee decided the matter as per the contents of their letter of 24 June 2013 (the decision), and in that decision dealt with the items of complaint under four headings. These will be dealt with in greater detail later, but for the present purposes those four headings were as follows:
1)The second respondent's 'Termination of retainer and attendance at directions hearing on 29 November 2011'.
2)The second respondent's 'Failure to notify the complainant of directions hearing (29 November 2011)'.
3)Provision of documents to Mr Blyth.
4)Lack of procedural fairness/lack of competency.
Under the fourth heading the Committee dealt with five subissues which the Tribunal will deal with shortly.

Application for review

Following the Committee's decision, the applicant filed an application for review with the Tribunal on 12 July 2013. That application was under s 435(1)(b) of the Legal Profession Act 2008 (WA) (LP Act) for a review of the first respondent's decision.
Under 'Decision sought', the applicant stated:
1)The conduct of the second respondent acting for the grieved in VR 7 of 2011 was not to a standard expected of the legal profession or the public in general.
2)The respondent be required by the LPCC to make things right or SAT make decisions accommodating grieved suitable to respondents.
3)Order at the discretion of the SAT either the respondent or the LPCC causing unnecessary expense to the applicant pay those costs associated with VR 7 of 2011.
A number of interim applications were also filed, and following a number of directions hearings the matter came on for final hearing on 18 March 2014. Documents before the Tribunal on that date included:
1)First respondent's Section 24 bundle filed on 11 October 2013.
2)Applicant's bundle of documents filed on 21 November 2013.
3)Volume 2 of the first respondent's Section 24 bundle of documents filed on 21 November 2013.
4)Second respondent's bundle of documents filed on 17 December 2013.
5)Various submissions from the parties including lengthy written submissions by the applicant.
At the hearing the applicant appeared in person with both the first and second respondents being legally represented. In exchanges with the applicant it became clear, as mentioned earlier, that one of his principal issues was the second respondent's alleged failure to put particular documents before the Tribunal in VR 7 of 2011.
In an exchange in respect of this issue, the Tribunal stated:
We're just trying to establish that is your complaint about Mr Park that he didn't put those documents in. Is that correct?
[The applicant]: That's correct. Yes.
(T:55; 18.03.14)
Following that, it became clear that some of the documents the applicant referred to may not be contained in any of the bundles before the Tribunal.
It was also clear that the applicant preferred to have the matter determined on the documents rather than at an oral hearing, and although the Tribunal was happy to determine the matter on the documents, the difficulty the Tribunal faced was, as noted above, there appeared to be documents that were not before the Tribunal which should be.
In the following exchange, the matter was discussed with the applicant, following which the matter progressed to a determination on the documents.
The Tribunal:    … Let's take this one step at a time, Mr Cuijpers. Right. So you want us to do it on the papers and we're happy to do it on the papers. But you don't want us to do it on the papers we have. … Next step. What papers do we need that we don't have that would help us to do it on the papers? … Do you have the papers? Do you have those papers?
Mr Cuijpers:     I have those papers.
…
The Tribunal:    … Can you give us a copy of those papers, please, Mr Cuijpers?
Mr Cuijpers:     Yes, I can.
The Tribunal:    … How long will it take you to get a copy of those papers?
Mr Cuijpers:     Seven days.
The Tribunal:    … [I]f we give you an opportunity to give us those papers within seven days … 14 days, 21 days … whatever time you need to copy the papers … and then we will determine the matter entirely on the documents. Is that what you want?
Mr Cuijpers:     I would prefer it on the documents.
The Tribunal:    [Clarifying] [i]s that what you want exactly what I've said there?
Mr Cuijpers:     Yes.
The Tribunal:    And then we will determine that on the documents you give us. Is that okay?
Mr Cuijpers:     That's fine. Thank you. Yes.
(T:7475; 18.03.14)
Following that exchange, orders were made programming the matter. However, as there were also a number of interim applications before the Tribunal, the applicant was given the opportunity to withdraw the interim applications on the basis that the Tribunal was now going to deal with the matter on the documents. The applicant confirmed that that was what he wanted in the following exchange:
The Tribunal:    … I will come back to you, Mr Cuijpers. We just have to finalise the interim matters. … So you now understand, we're going to make five orders. Four of them deal with the ongoing of this matter[.]
Mr Cuijpers:     Yes.
The Tribunal:    And are you happy, in the circumstances, if we give you leave to withdraw your interim application?
Mr Cuijpers:     Yes and thank you.
…
The Tribunal:    Leave is given, and those interim applications are withdrawn[.]
(T:87; 18.03.14)
The following orders were then made:
1.Pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA) the applicant has leave to withdraw all his interim applications in this proceeding and the interim applications are hereby withdrawn.
2.On or before 12.00 pm on 28 March 2014 the applicant is to file with the Tribunal any additional documents and any submissions not already on file VR 136 of 2013 that he says are relevant to these proceedings and support his application.
3.By 4 April 2014 the respondents may file with the Tribunal and give to the applicant any submissions in response.
4.Following the receipt of any documents or submissions filed in compliance with orders 2 and 3 above, the matter will be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
5.If the applicant fails to comply with order 2 above for any reason, the Tribunal will proceed to determine the matter in compliance with order 4 above entirely on the documents that are currently before it.
In compliance with order 2, the applicant filed a bundle of documents titled 'Supplementary Documents' with submissions which included, amongst other things, an audio CD. In his submissions, the applicant referred to the contents of the documents filed.
The second respondent was due to file their submissions by 4 April 2014. However, they were finally filed on 2 May 2014 with a request that they be accepted.
The Tribunal confirmed that they would deal with the extension of time in the final decision, and the Tribunal will deal with that matter now.

Decision on extension of time for the second respondent's submissions

The submissions by the second respondent were received on 2 May 2014, albeit they had been due on 4 April 2014. Therefore, the second respondent requires an extension of time. The second respondent explained the delay in filing the submissions in a single sentence, which stated:
The late filing was caused by a generated email not arriving at our office due to service/system failure unknown to me until today.
That statement raises more questions than it answers, and whether the email arrived at the practitioner's office is not a concern. The fact that the order was not complied with by the due date and the submissions did not arrive at the Tribunal by the due date is the issue.
The circumstances were that the Tribunal had effectively made a springing order in respect of the applicant's submissions and documents to be filed, and in the following exchange with counsel for the second respondent, the Tribunal made it clear not to ask for more time in respect of their submissions.
Counsel:We're perfectly content with those orders.
The Tribunal: All right. And you understand, Mr McIntyre, you will have seven days.
Counsel:Yes, I'm just wondering when you
The Tribunal: Don't ask for any more time.
Counsel:I'm not asking, no.
Tribunal:Good.
When the late filing occurred in May, the applicant objected to any extension of time.
In the circumstances and in view of the tight restrictions applied to the applicant, which he complied with, and the clear warning to the respondent not to ask for any more time, the Tribunal is not minded to grant the extension sought and has not taken into account the second respondent's submissions in response filed on 2 May 2014 in its consideration of the matter.

Law/authorities

The law on this matter is well known, but the Tribunal will set it out for the purposes of clarity.
As stated by Chaney J in Cuijpers and Legal Profession Complaints Committee [2012] WASAT 87 (Cuijpers 2012), at [28]:
The task of the Tribunal is to determine whether the Committee was wrong in concluding that 'there is no reasonable likelihood' that the second respondent would be found guilty by this Tribunal of either unsatisfactory professional conduct or professional misconduct within the meaning of s 425(a) of the [Legal Profession] Act. 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 ([State Administrative Tribunal] Act, s 27). The Tribunal is, however, confined to considering only the complaints which the Committee considered, and not any new or different complaints that Mr Cuijpers may now make.
Further, in Chinnery and Legal Profession Complaints Committee [2013] WASAT 79 (Chinnery), at [3] [14], the Tribunal set out the procedure in more detail, and in relation to this matter that is important because there are a number of items in respect of which leave is required. In Chinnery the Tribunal stated:
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 [grant] 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].
…

Items of complaint

The Tribunal notes that there were seven grounds in the applicant's application to the Tribunal dated 12 July 2013, but those seven grounds only dealt with six of the 11 issues identified by the first respondent in its letter of 24 June 2013.
However, as this is a hearing de novo, the Tribunal notes the comments of the applicant in the penultimate paragraph of his submissions filed on 27 March 2014, when he stated:
The applicant is unable to cover all issues independently within the time limit.
The complaints are documented [in] correspondence between [the] second respondent and [the] applicant. Therefore the applicant relies on the correspondence between [the] decision maker, [the] second respondent and [the] applicant, with a decision decided by the SAT.
The Tribunal has therefore considered all of the 11 issues raised in the first respondent's letter of 24 June 2013, and for ease of reference the Tribunal will deal with the matters in the order that they appear in that letter, and when any of the seven grounds the applicant raised are relevant, they will be referred to at that time.
In the submissions received on 10 September 2013, the applicant replied to each of the paragraphs in the decision of the first respondent dated 24 June 2013 and the applicant made further submissions which accompanied the supplementary documents filed in compliance with the order of 18 March 2014.
The Tribunal, in considering this matter, has taken those submissions and all other documents contained in the various bundles referenced earlier into account in reaching its decision.

Details of complaints

Complaint 1: Termination of retainer and attendance at directions hearing on 29 November 2011

This allegation was that the second respondent terminated his retainer and then attended a directions hearing in the SAT review proceedings on 29 November 2011 when he had no authority from the complainant to do so. The matter was covered by paragraphs 2 to 5 in the first respondent's decision dated 24 June 2013 and was covered by ground 3 in the applicant's application. No leave was required in respect of this ground.

Complaint 2: Failure to notify the complainant of directions hearing

Here the applicant alleges that the practitioner failed to notify the complainant of the directions hearing on 29 November 2011 before or after his resignation in sufficient time for the complainant to personally attend the directions hearing. This matter was covered by paragraphs 6 to 8 of the first respondent's decision of 24 June 2013 and, again, no leave is required in respect of this issue.

Complaint 3: Provision of documents to Mr Blyth

This complaint dealt with the alleged provision of documents to Mr Blyth.
It was dealt with at paragraphs 9 to 11 of the decision of the first respondent of 24 June 2013.
This complaint was found to be unreasonable and leave was required. The principal allegation under this heading was that the practitioner provided documents to Mr Blyth which belonged to the complainant.

Complaint 4: Lack of procedural fairness/lack of competency

In respect of this complaint, leave was also required, as again, the first respondent's complaint was found to be unreasonable.
There were, however, six subissues to this complaint with the final subissue being broken into two parts.

Applicant's submissions

Submissions in respect of Complaint 1 (Termination of retainer and attendance at directions hearing on 29 November 2011)

As stated, this complaint related to the practitioner terminating his retainer and then attending a directions hearing at the Tribunal on 29 November 2011 when he had no authority from the complainant to do so.
The primary findings in the decision of the first respondent dealing with this complaint were at paragraph 4 of their decision, which stated:
As the solicitor on the SAT record, the practitioner owed an obligation to SAT to ensure that SAT was aware of the change in representation. Given the lateness of the termination and the fact that the complainant would not have had time to attend the directions hearing after receiving notification of the termination, it was appropriate for the practitioner to attend the directions hearing and advise SAT of the termination and to otherwise seek to preserve the complainant's position, which the Committee considered occurred.
The decision then went on at paragraph 5 to state that:
… [B]y not attending the directions hearing he [the applicant] was unable to submit his own bundle of documents is at odds with the order made by SAT on 29 November 2011 permitting the complainant to file his bundle of documents on or before 6 December 2011, which the complainant did.
The applicant in his submissions to the Tribunal stated that the second respondent had no business attending the directions hearing on 29 November 2011 and had permitted his client's case to be closed preventing the Tribunal providing any further directions hearings.
He went on to contend that the second respondent should have done and said certain things, and explained to the Tribunal that the second respondent no longer acted for the applicant.
The applicant clearly does not agree with the first respondent's decision, but apart from reiterating the same position, sometimes in a different way, he does not put any additional evidence before the Tribunal than what was before the Committee and on which the Committee relied to make its decision.
Although leave is not required, as the first respondent did not make a finding of unreasonableness, the Tribunal must still determine if the Committee was wrong in determining that there was no reasonable likelihood that Mr Park would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct.
The applicant also stated in his submissions that:
… [A]ttending the directions hearing was for the purpose of ascertaining the progress and content of the review at Mr Park's resignation and to decide seeking further representation or handle the matter personally to conclusion.
The Tribunal did not quite understand that sentence, but understood that the applicant was unhappy with the decision for the other reasons he outlined.

Submissions in respect of Complaint 2

The applicant submitted that the second respondent failed to notify the applicant of the directions hearing on 29 November 2011 in sufficient time for the applicant to personally attend the directions hearing.
At paragraph 7 of the first respondent's decision of 24 June 2013, it noted that that the practitioner had stated that his office had received notice of the listing of the directions hearing on Friday, 25 November 2011, but the practitioner did not become aware of it until Monday, 28 November 2011.
The first respondent, at paragraph 8 of its decision, stated:
Practitioners are required to keep their clients informed of significant developments and generally about the progress of their matter. …
But later stated:
However, in the circumstances of this matter where the practitioner had decided to terminate his retainer the Committee was of the view that the practitioner ought to have taken steps to notify the complainant of the directions hearing in a more timely manner so that he could have attended in person. However, the failure to do so would not be sufficient to amount to unsatisfactory professional conduct particularly given that the practitioner intended to appear at the directions hearing in order to advise SAT what was occurring and to protect the complainant's position.
It is noted that the first respondent did note an 'Expression of Concern' in their findings in relation to this matter, and stated:
The Committee expresses concern regarding one aspect of the practitioner's conduct namely his delay in informing the complainant of the 29 November 2011 directions hearing once he had determined to terminate his retainer. In circumstances such as these, best practice would be for the client to be notified as soon as the decision is made to terminate the retainer to enable the client to attend any forthcoming directions hearing or to arrange alternative representation.
In his submissions in reply to paragraphs 6, 7 and 8 of the respondent's decision, the applicant makes it quite clear that in his view the practitioner's decision not to inform his former client immediately was, in his words, 'inexcusable', and contended that the practitioner had failed to keep his client informed about the progress of the matter, and that the first respondent failed to recognise that the practitioner had resigned on 25 November 2011.
The applicant went on to state that '[w]hat Mr Park should and could have achieved here to protect his client's rights was to include the unreviewed complaints', referring to the bundle of documents in VR 7 of 2011, which the applicant believed were not before the Tribunal.

Submissions in respect of Complaint 3: Provision of documents to Mr Blyth

At paragraph 9 of his submissions, the applicant confirmed that this allegation was withdrawn, and explained the reasons why he withdrew the matter.
In the circumstances, the Tribunal will not deal with that matter and no further comment is necessary. Leave to withdraw that complaint will be granted.

Submissions in respect of Complaint 4: Lack of procedural fairness/lack of capacity

As outlined earlier, the fourth complaint is a general complaint headed 'Lack of Procedural Fairness/Lack of Competency', contending that the practitioner had acted in such a way as to prevent the Tribunal from properly considering his case. As stated earlier, it was broken into a number of subissues which we will deal with individually.

Subissue 1

The first subissue was contained at paragraph 13 of the respondent's decision dated 24 June 2013 and related to an alleged deficiency in the submissions prepared by the practitioner in support of the applicant's application to the Tribunal.
However, at paragraph 13 of the applicant's submissions of 10 September 2013, this allegation is also withdrawn with the applicant giving reasons as to why he withdrew it. Again, in the circumstances, no further comment is required and leave to withdraw that complaint will be granted.

Sub-issue 2

The second subissue is found at paragraph 15 on page 4 of the respondent's decision dated 24 June 2013. It is an allegation that the practitioner did not contribute to the section 24 bundle of documents filed by the Committee in the Tribunal's review proceedings, VR 7 of 2011.
In particular, it is alleged that the practitioner failed to include those documents which the complainant filed in his bundle of documents with the Tribunal in this matter.
This is a key issue for the applicant and it is clear to the Tribunal that Mr Park's alleged failure to put documents before the Tribunal in VR 7 of 2011 was a major concern for the applicant.
It was dealt with at ground 6 of his application and at paragraphs 15 to 18 in the respondent's decision of 24 June 2013.
The Committee made a number of comments in its decision, but at the top of paragraph 18 stated:
There is no evidence before the Committee that the complainant requested the practitioner to file further documents or the basis for the complainant's view that the documents were relevant to the review proceedings. …
Earlier it had explained in paragraphs 16 and 17 that in review proceedings in the Tribunal the decisionmaker is required by s 24 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to provide a bundle of relevant documents in its possession or control and there is no provision allowing other parties to the review proceedings to contribute to that bundle.
As with all of the matters or subissues under Complaint 4, leave is required because at paragraph 32 of its reasons the Committee stated the allegations under Complaint 4 were unreasonable.
The applicant went to great trouble over the first seven and a half pages of his submissions of 27 March 2014 to detail what he believed each of the documents he filed contained, and from page 8 onwards summarised his conclusions.
One of the primary questions he poses is found on page 10 of his submissions, at paragraph (h), where he states:
… Neither party included the documents enclosed and now lodged with v2 and SRB in VR 136 of 2013 within VR 7 of 2011 why?
Although it is not clearly stated, the Tribunal understands that the applicant's complaint and the contentions he makes through his submissions filed with those documents are that he wanted Mr Park to file those documents with the Tribunal in VR 7 of 2011.
However, in his submissions of 10 September 2013, at paragraph 15, the applicant concedes:
… [T]he applicant mistook S 24 bundle of documents identification filed by the LPCC as the anticipated appeal court rules identification and accept at 16 there is no provision for other parties to contribute to that book. …
And at paragraph 18 stated:
Filing by Mr Park of the documents from applicant VR 7 of 2011 would undoubtedly have lead [sic] the judicial officer to query the discrepancy with Mr Park … .
There is no question in the Tribunal's mind that the applicant believes that the decision in VR 7 of 2011 may have been different if those documents were before the Tribunal.

Sub-issue 3

This deals with the failure to advise the applicant of the 29 November 2011 directions hearing in sufficient time for the applicant to attend personally.
As this issue was dealt with in its own right earlier under Complaint 2, the Tribunal will not deal with that matter again, and adopts its earlier comments.

Sub-issue 4

This matter was contained at paragraphs 20 to 25 of the respondent's decision dated 24 June 2013, the allegation being that the practitioner influenced or misled Chaney J at the directions hearing on 29 November 2011 and in comments made in a letter to the complainant dated 25 November 2011.
Again, like all of the subissues in this complaint, it was found to be unreasonable by the Committee and, at paragraph 23, the Committee stated:
The Committee considered that the practitioner had merely been seeking to gain for the complainant an opportunity to file substituted submissions and a substituted bundle of documents should the complainant seek alternative legal advice that what he had filed was not appropriate or complete in some way.
And at paragraph 24 stated:
There is no evidence before the Committee that there was any prejudice caused to his application in any way by the practitioner's statement. Merely because the decision of Justice Chaney does not refer to many of the further documents filed by the complainant does not support that proposition as there may be other reasons, such as relevance, as to why those documents were not referred to in the reasons for decision.
The applicant, in his submissions of 10 September 2013, goes through the issues in great detail at paragraphs 20 through to 25, and at paragraph 21 states that Mr Park's comments are acknowledged and did have a significant effect in the judgment but without pointing to any particular issue.
It is clear that the applicant's view is that there was an issue. However, although the applicant makes a lot of assertions and contentions, the Tribunal found it difficult to find any facts to back those assertions.
The applicant stated at paragraph 25 of his submissions:
The applicant believes Mr Park is normally a skilled practitioner who failed in this instance to put due care and diligence into his client's case because of outside influences and loyalty to professional associates[.]
And later:
… Indications to the applicant suggest the result in VR 7 of 2011 is unsafe, therefore CACV 66 of 2012 is unsafe, therefore also indicates PE 1971/04 result is unsafe and respectively PE22143-5/05 is also unsafe due to the transcript of PE1971/04 was used by prosecution in PE22143-5/05 against the applicant.
Effectively, the applicant is attempting to establish that there will be a 'domino effect' if this complaint is successful and it would go back through all of his previous court decisions.

Subissue 5

This is an allegation dealt with at paragraph 26 of the respondent's decision of 24 June 2013, that the practitioner conspired with the Committee and Mr Blyth to prevent the Tribunal from considering his bundle of documents.
In its decision, the Committee simply said that there was no evidence to support that allegation.
The applicant has addressed the matter in his submissions of 10 September 2013 at paragraph 26 by stating:
By President Chaney permitting the applicant to submit a bundle of documents gave the applicant a false sense the President was unmoved by Mr Park['s] remarks[.]
However, the Tribunal could not find in that paragraph any evidence to support an allegation of conspiracy and no evidence of any sort has been put forward by the applicant through either his submissions or in the documents put before the Tribunal to support such a contention.

Final subissue (Part 1)

The first part of this issue was found at paragraph 27 of the respondent's decision of 24 June 2013 which stated:
The final allegation is an allegation that the practitioner failed to properly advise the complainant as to the nature of the complaints SAT would consider on review and failed to advise the complainant to seek a variation to include certain matters in the application for review. …
That issue was then broken up into a number of matters. The first matter which Mr Cuijpers sought to allege against Mr Blyth concerned allowing a letter to be admitted into court in the misconduct restraining order proceedings against the rules of evidence.
The next is identified at paragraph 28 of the respondent's decision which states:
Another of those matters is a conflict of interest complaint of which no details are provided by the complainant. …
Finally, the third was found at paragraph 29 which stated:
The final matter is an allegation that the practitioner did not provide further particulars of allegations in the misconduct restraining order proceedings. …
In respect of each of those matters, the Committee found that there was insufficient evidence.
At paragraphs 27, 28, 29 and 30 of his submission in reply dated 10 September 2013, the applicant stated
At paragraph 27:
… Accordingly Mr Park had cause in the interest of his client to further submissions he had and would know his client wanted included to further, his client's case … .
At paragraph 28, relating to the conspiracy allegation,
The letter 12 April 2006 the LPCC refer to is of no significants [sic], why they refer to it is unknown. …
At paragraph 29 stated:
… What the LPCC are exactly trying to establish here is confusing … .
And later stated:
… [A]ccordingly in context with the whole case to be considered there is reasonable grounds Mr Park['s] refusal to submit the applicant's documents under appeal court rules or umbrella of the SAT [A]ct s 24 was prejudicial to his client.

Final subissue (Part 2)

The second part of the applicant's final allegation is found at paragraph 31 of the respondent's decision dated 24 June 2013.
It deals with an allegation that the second respondent failed to seek a variation to the finding of the Committee, that Mr Cuijpers' complaint against Mr Blyth of perverting the course of justice was vexatious, and the characterisation of the complaint as a complaint of perverting the course of justice was the Committee's wording and not his.
In respect of that issue at paragraph 31 of his submission of 10 September 2013, the applicant stated:
Withdrawn complaint on the grounds the allegation does not go to the core issues alleged … .
The applicant goes on to make further comment but it would appear that he treated this complaint as withdrawn. Therefore, no further comment is required and leave to withdraw will be granted.

Additional ground (ground 7)

That brings us to the end of the Committee's reasons for decision, but before the Tribunal goes on to make its findings in respect of each of the matters outlined, there was a seventh ground raised by the applicant which stated:
Without exception the applicant charges these and incidentals by the respondent prejudiced his client's credibility and factual case before the SAT. The possibility of prejudice is enough.

Although that is not a matter that was before the Committee, the Tribunal considers that in all likelihood it is an application by the applicant for costs, and will deal with it in that way. No submissions were received in respect of that issue.

Findings

Dealing with the complaints in the same order as set out earlier, that is, as per the Committee's decision of 24 June 2013, the Tribunal makes the following findings.

Complaint 1: Termination of retainer and attendance at a directions hearing on 29 November 2011

The applicant clearly does not agree with the decision of the Committee. But apart from restating the same contentions he put to the Committee, he did not put anything before the Tribunal as to why it should come to a different finding. Leave is not required for this ground, as the Committee did not find the complaint unreasonable. However, the Tribunal must still determine whether there is no reasonable likelihood that Mr Park will be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct under the provisions of s 425(a) of the LP Act.
Having considered all of the facts and the evidence, the Tribunal agrees with paragraph 4 of the decision of the Committee which stated:
As the solicitor on the SAT record, the practitioner owed an obligation to SAT to ensure that SAT was aware of the change in representation. Given the lateness of the termination and the fact that the complainant would not have had time to attend a directions hearing after receiving notification of the termination, it was appropriate for the practitioner to attend the directions hearing and advise SAT of the termination and to otherwise seek to preserve the complainant's position, which the Committee considered occurred.
When replying to this, the applicant merely restated his allegation that:
Had Mr Park represented his former client's position, the position his former client now finds himself in would not have occurred.
The applicant may believe that to be the case, but other than stating it, he has offered nothing that would convince the Tribunal that that would ever have been the case. What was stated at paragraph 4 of the Committee's decision (above) by the Committee was an appropriate thing for the second respondent to do.
In all the circumstances, the Tribunal is not satisfied that the Committee's decision was wrong and concurs with the Committee that there is no reasonable likelihood that Mr Park, based on the evidence before it, would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct in respect of this item of complaint. The application for review of Complaint 1 will therefore be dismissed.

Complaint 2: Failure to notify the complainant of the direction's hearing

Again, leave is not required in respect of this item of complaint. However, the same test applies as to whether the Committee was wrong in deciding that there was no reasonable likelihood that Mr Park would be found guilty of either unsatisfactory professional conduct or professional misconduct under s 425(a) of the LP Act.
The Tribunal notes that the Committee did state an expression of concern in respect of this matter when, under the heading 'Expression of Concern' in the last paragraph of its decision of 24 June 2013, it stated:
The Committee expresses concern regarding one aspect of the practitioner's conduct namely his delay in informing the complainant of the 29 November 2011 directions hearing once he had determined to terminate his retainer. In circumstances such as these, best practice would be for the client to be notified as soon as the decision is made to terminate the retainer to enable the client to attend any forthcoming directions hearing or to arrange alternative representation.
Although the Tribunal agrees with that expression of concern, the term 'unsatisfactory professional conduct' requires conduct that falls short of the standard of competency and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner (s 3 and s 402 of the LP Act).
The term 'professional misconduct' includes 'conduct involving a substantial or a consistent failure to reach or maintain a reasonable standard of competence and diligence' and is conduct which would justify a finding that the practitioner is not a fit and proper person to engage in legal practice (s 3 and s 403(1)(a) and s 403(1)(b) of the LP Act).
Conduct that is capable of constituting unsatisfactory professional conduct or professional misconduct includes the charging of excessive legal costs in connection with the practice of the law (s 404(b) of the LP Act).
Although Mr Park's conduct is described as inexcusable by the applicant, and the Committee has 'expressed concern', the Tribunal is not satisfied that Mr Park's conduct reaches the standard of either unsatisfactory professional conduct or professional misconduct on the basis that although Mr Park did not notify the applicant in time, he did attend the directions hearing and it all happened within a very short time period.
Further, we accept that the applicant does not agree with that finding, but in the Tribunal's view and all the circumstances of the case, the decision of the Committee was correct and the application for review of Complaint 2 will be dismissed.

Complaint 3: The provision of documents to Mr Blyth

As noted earlier, that was withdrawn and leave to withdraw the application for review of that complaint is granted and the application for review is withdrawn.

Complaint 4: Lack of procedural fairness/lack of competency

As explained earlier, this complaint is broken into a number of subissues.

Subissue 1: Alleged deficiency in the submissions prepared by the practitioner

The first issue is found at paragraphs 12 through to 14 of the Committee's decision of 24 June 2013 and deals with an alleged deficiency in the submissions prepared by the practitioner.
As explained earlier, that complaint was withdrawn by the applicant and leave to withdraw the application for review of that complaint item is granted and it is withdrawn.

Subissue 2: That the practitioner did not contribute to the section 24 bundle of documents

It was clear to the Tribunal from the applicant's comments at the hearing on 18 March 2014 referred to earlier, that the additional documents he believed Mr Park did not file but should have filed in VR 7 of 2011 were important.
The applicant stated at paragraph (h) at page 10 of his submission of 27 March 2013:
… Neither party included the documents enclosed and now lodged with v2 and SRB in VR 136 of 2013 within VR 7 of 2011 why?
Although the documents may or may not have been before the Tribunal in VR 7 of 2011, apart from the applicant's contention that they were not, what the precise position was has not been established conclusively at any stage and what was before the Tribunal in VR 7 of 2011 is unclear.
The applicant clearly believes that the additional documents filed by him in this matter on 27 March 2014 were not before the Tribunal in VR 7 of 2011, but even if they were not, that fact alone cannot prove that it would have made any difference to the mind of the decisionmaker.
What Chaney J in VR 7 of 2011 considered relevant is set out in his reasons for decision and only Chaney J or an appeal court would have all the documents from VR 7 of 2011 before it and be able to make a proper assessment as to the value of the documents or any additional documents that the applicant says are related or would have made a difference.
This Tribunal is not in a position to do that and does not have the power to reconsider the decision in VR 7 of 2011.
The complaint in this matter is that the practitioner did not contribute to the section 24 bundle filed by the respondent in VR 7 of 2011. But, as outlined at paragraph 15 of the respondent's decision, the section 24 bundle is a matter solely for the decisionmaker. The applicant, or his legal representatives, were not entitled to add anything to that bundle.
Section 24 of the SAT Act states:
If a proceeding for the review of a decision is commenced, the decisionmaker is to provide the following to the Tribunal in accordance with the rules
(a)a statement of the reasons for the decision; [and]
(b)other documents and other material in the decisionmaker's possession or under the decisionmaker's control and relevant to the Tribunal's review of the decision.
Documents that Mr Park or the applicant may have had did not qualify to be included under that section.
As stated at paragraph 17 of the respondent's decision of 24 June 2013, a request may have been made to the Tribunal by the applicant to file other documents similar to the way additional documents were filed in this case. But the fact that Mr Park did not do that is not the complaint, and it is noted that in paragraphs 15, 16 and 17 of his submissions of 10 September 2013 referred to earlier the applicant appears to have acknowledged that.
The applicant goes on to say that Mr Park failed to inform the applicant of his rights or should have filed the documents separately. However, the respondent decided this matter on the basis of the section 24 bundle complaint, which is what is also before this Tribunal, and there is nothing to suggest that decision was wrong.
Indeed, as outlined above, the applicant appears to accept the section 24 allegation may not have been correct.
The fact that the documents may not have been before the Tribunal and that Mr Park had been instructed to do so is a different complaint. This Tribunal is confined to considering only the complaints the Committee considered and not any new or different complaints.
In the circumstances, as leave was required in respect of this complaint, the Tribunal is not satisfied that the Committee's decision in respect of the section 24 bundle was wrong or attended with sufficient doubt to justify the granting of leave. Therefore, leave will be refused.

Subissue 3: Failure to advise the complainant of the 29 November 2011 directions hearing in sufficient time

This is the same issue as dealt with earlier under Complaint 2 and the Tribunal adopts its reasons and findings in respect of that matter where it dismissed the complaint, and as leave was required in the context of this subissue, leave will be refused and the application for review of this issue will be dismissed.

Subissue 4: The practitioner influenced or misled Chaney J at directions hearing on 29 November 2011 and in comments made in a letter to the complainant dated 25 November 2011

In his submission, the applicant again outlined his contentions in respect of this matter without producing any evidence to support them and, as outlined earlier at paragraph 25 of his submissions dated 10 September 2013, stated:
… Indications to the applicant suggest the result in VR 7 of 2011 is unsafe, therefore CACV 66 of 2012 is unsafe, therefore also indicates PE 1971/04 result is unsafe and respectively PE22143-5/05 is also unsafe due to the transcript of PE1971/04 was used by prosecution in PE22143-5/05 against the applicant.
These comments are made without any evidence to support them and were all part of the many issues raised under the fourth complaint, that various parties acted in such a way to prevent the Tribunal from properly considering his case. The respondent, at paragraph 32 of its decision, found this to be unreasonable and leave is required.
The applicant must show that the decision was therefore wrong or attended with sufficient doubt and no effort was made to do that or no effort was made to put forward any evidence to support the complaint which was based on nothing more than the applicant's contentions and/or beliefs.
As the respondent stated at paragraph 24 of its decision:
There is no evidence before the Committee that there was any prejudice caused to his application in any way by the practitioner's statement. …
In the circumstances, the Tribunal is not satisfied that the Committee's decision was wrong or attended with sufficient doubt to justify the granting of leave and, in respect of that issue, leave will be refused.

Subissue 5: Allegation that the practitioner conspired with the Committee and Mr Blyth to prevent SAT from considering his bundle of documents

This is a very serious allegation yet there is no evidence of any type to support it in any of the documents put forward. Indeed, the applicant, at paragraph 26 of his submissions of 10 September 2013, does not actually suggest or allude to a conspiracy but only repeats his contentions about the Committee, Mr Park and Mr Blyth.
Based on what the applicant has put forward, the Tribunal is not satisfied at any level and, indeed, could not be satisfied on what is in front of it, that the respondent's decision is wrong or attended with sufficient doubt to justify the granting of leave and leave will be refused in relation to this issue.

Final Issue (Part 1): The practitioner failed to properly advise the complainant as to the nature of the complaints SAT would consider on review and failed to advise the complainant to seek a variation to include certain matters

The first matter under this heading, which Mr Cuijpers says should have been included in the proceedings against Mr Blyth, concerns allowing a letter to be admitted into earlier court proceedings concerning a misconduct restraining order.
The second matter relates to a conflict of interest with no details given.
The third matter was an allegation that the practitioner did not provide further particulars of allegations in the misconduct restraining order proceedings.
Again, all of these come under Complaint 4, and leave is required.
In respect of those three items:
•as to the first issue concerning allowing a letter to be admitted into court in the misconduct restraining order proceedings, the applicant simply does not address the issue;
•in relation to the second issue about the conflict of interest, no details of any type were furnished; and
•in respect of the third issue, that the practitioner did not provide further particulars of the allegation in the misconduct restraining order proceedings, the applicant again refers back to the same argument he had made earlier in relation to the section 24 bundle and stated at paragraph 29 of his submissions of 10 September 2013:
… there is reasonable grounds Mr Park [sic] refusal to submit the applicant's documents under appeal court rules or umbrella of the SAT [A]ct s 24 was prejudicial to his client.
But again, in each of those matters, no evidence was produced that the Tribunal could rely on.
As outlined earlier, the applicant's submissions did not address this issue as raised in the respondent's decision and, on a consideration of the evidence before it, the Tribunal cannot find anything on which to make a finding that the Committee was wrong, particularly based on what the applicant has put before the Tribunal.
The Tribunal agrees with the reasons as set out by the respondent on this issue and is not satisfied that the decision of the Committee was wrong or attended with sufficient doubt based on what the applicant has put before the Tribunal.
In the circumstances, leave will not be granted in respect of this issue and the application for leave will be refused.

Final Issue (Part 2) Allegation that the practitioner failed to seek a variation to the finding of the Committee of his complaint of perverting the course of justice

As outlined earlier, the applicant withdrew this matter and leave to withdraw the matter is granted and the matter is withdrawn.

Additional ground (ground 7)

This issue was not before the respondent and, as outlined earlier, the applicant stated:
Without exception the applicant charges these and incidentals by the respondent prejudiced his client's credibility and factual case before the SAT. The possibility of prejudice is enough.
If this is a new complaint then the Tribunal cannot deal with it, as outlined by Chaney J in Cuijpers 2012 at [28]:
The Tribunal is confined to considering what was before the Committee and this matter was not before the Committee.
However, if it was that the applicant was applying for costs, then the Tribunal will deal with it by order later.

Alternative dispute resolution

The Tribunal wished to briefly address the matter of alternative dispute resolution, as it was raised by the applicant in his written submissions and also at the hearing.
Although the Tribunal uses mediation in matters of this type, by the time the matter was raised, the horse had bolted and the matters were at final hearing. Therefore, although it may have been viable earlier in the proceedings, by the time it was raised it was far too late as finality was needed.

Conclusion

In respect of the applicant's application for leave to review the Committee's decision under s 435(2) of the LP Act, the Tribunal concludes that, as per the findings outlined above, the applicant has not shown that the decision in respect of which leave is sought (that is, all of the issues under Complaint 4 from paragraph 12 onwards of the respondent's decision of 24 June 2013 other than those complaints that have been withdrawn) was wrong, or attended with sufficient doubt to justify the granting of leave. Accordingly, leave is refused.
In respect of the applicant's application for review of the Committee's decision in respect of Complaints 1 and 2 at paragraphs 2 to 11 of the respondent's decision of 24 June 2013, the Tribunal considers the Committee's decision was the correct and preferable decision and that decision is affirmed.
Finally, in respect of the complaint items which were withdrawn, including Complaint 3, leave is granted to withdraw those items and they are withdrawn.

Additional ground (Ground 7)

If Ground 7 of the application dated 10 July 2013 relates to a new complaint then it is dismissed for lack of jurisdiction, and if it relates to an application for costs, it is dismissed on the basis that the applicant's application was unsuccessful.

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.In relation to those parts of the applicant's complaints which require leave to withdraw, leave is granted and they are withdrawn.
3.The application is otherwise dismissed.

Further orders

1.If Ground 7 of the application dated 10 July 2013 relates to a new complaint then it is dismissed for lack of jurisdiction.
2.If Ground 7 of the application dated 10 July 2013 relates to an application for costs, it is dismissed on the basis that the applicant's application was unsuccessful.

I certify that this and the preceding [165] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT