Cuijpers v Legal Profession Complaints Committee

[2012] WASCA 209

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   CUIJPERS -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2012] WASCA 209

CORAM:   PULLIN JA

MURPHY JA

HEARD:   12 OCTOBER 2012

DELIVERED          :   12 OCTOBER 2012

PUBLISHED           :  22 OCTOBER 2012

FILE NO/S:   CACV 66 of 2012

BETWEEN:   FREDERIK JOHAN CUIJPERS

Appellant

AND

LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent

STEVEN BLYTH
Second Respondent

ON APPEAL FROM:

Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Coram  :JUSTICE J A CHANEY (PRESIDENT)

Citation  :CUIJPERS and LEGAL PROFESSION COMPLAINTS COMMITTEE [2012] WASAT 87

File No  :VR 7 of 2011

Catchwords:

Practice and procedure - Application for an extension of time in which to appeal

Practice and procedure - Application for leave to appeal - Where none of the grounds of appeal have any prospect of succeeding

Legislation:

Legal Profession Act 2008 (WA)
State Administrative Tribunal Act 2004 (WA)

Result:

Application for an extension of time in which to appeal dismissed
Application for leave to appeal dismissed
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

First Respondent           :     No appearance

Second Respondent      :     No appearance

Solicitors:

Appellant:     In person

First Respondent           :     Legal Profession Complaints Committee

Second Respondent      :     Lewis Blyth & Hooper

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

Cuijpers and Legal Profession Complaints Committee [2012] WASAT 87

Cuijpers v Legal Profession Complaints Committee [2009] WASC 311

Cuijpers v Sander [2008] WASCA 159

Cuijpers v Sander [No 2] [2009] WASCA 84

Cuijpers v Thompson [2008] WASC 95

1. REASONS OF THE COURT:    On 12 October 2012, the court made orders refusing the appellant's application for an order extending the time in which to appeal, dismissed the application for leave to appeal, and dismissed the appeal.  The court announced that it would publish reasons later.  These are the reasons.

2. The appellant sought leave to appeal and an extension of time in which to appeal against a decision of the State Administrative Tribunal (SAT) delivered on 4 May 2012.  The reasons of the tribunal are Cuijpers and Legal Profession Complaints Committee [2012] WASAT 87.

3. The time for appealing was limited to 21 days after the delivery of the decision. The appellant did not commence an appeal in this court until 2 July 2012. The appellant has applied for an extension of time until then. Leave to appeal is required by s 105(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). A satisfactory explanation has been given for the delay but an extension will not be granted if the grounds of appeal have no reasonable prospect of succeeding.

4. The ultimate background to this matter has been raked over in four other proceedings in this court.  They are Cuijpers v Thompson [2008] WASC 95; Cuijpers v Sander [2008] WASCA 159; Cuijpers vSander [No 2] [2009] WASCA 84 and Cuijpers vLegal Profession Complaints Committee [2009] WASC 311.

5. In Cuijpers v Sander [No 2], Buss JA referred to the history of the proceedings in which the second respondent represented the appellant.  That history also has a background which begins with a restraining order made against the appellant on 15 September 2003 on the application of the appellant's former girlfriend, JCK.  Buss JA in Cuijpers vSander [No 2], then explained what happened after the grant of the restraining order.  He said:

   On 24 October 2003, the restraining order was served on the appellant personally (AB 279).  It took effect on that date (AB 312).  Later, after events which occurred on 8 October 2004, an extension of the restraining order was granted by Magistrate Burton (AB 240, 243 - 244, 256, 257).

   In late June 2007, JCK died [3], (AB 152). 

   The application for leave to appeal against the making of the restraining order (that is, SJA 1008 of 2008) was incompetent. The right of appeal was to the District Court. See s 64(2) of the Restraining Orders Act 1997 (WA) read with Pt 7 of the Magistrates Court (Civil Proceedings) Act 2004 (WA). McKechnie J therefore dismissed the application.

   In SJA 1007 of 2008, the appellant sought leave to appeal against his conviction by Magistrate Lane on three counts of breaching the restraining order. The convictions were entered on 18 August 2005 [1]. The appeal notice was not filed, however, until 6 February 2008 (that is, nearly 2 1/2 years out of time) [1], [4].

   McKechnie J dismissed the application for leave to appeal against conviction. His Honour held that there was no reasonable prospect of success on any of the proposed grounds of appeal [27]. Also, the appellant's lengthy delay was largely unexplained [27] - [29].

   The appellant then made application for leave to appeal to this court from McKechnie J's dismissal of his application for leave to appeal against conviction (that is, SJA 1007 of 2008). 

   On 22 July 2008, the application for leave to appeal to this court was called on before Miller JA to consider whether the appellant's draft grounds of appeal should be struck out under r 43(2)(f) of the Supreme Court (Court of Appeal) Rules 2005 (Court of Appeal Rules).  Rule 43(2)(f) confers on a single judge of appeal jurisdiction to strike out any ground of appeal that does not have a reasonable prospect of succeeding [3] ‑ [9].

6. The proceedings before McKechnie J resulted in the reasons in Cuijpers v Thompson.  Miller JA refused the appellant's application for leave to appeal against McKechnie J's decision to refuse leave to appeal for the reasons given by Miller JA in Cuijpers v Sander [No 1].

7. Buss JA, in his reasons in Cuijpers vSander [No 2], continued:

   The appellant and the complainant, JCK, had been in a relationship for about 3 1/2 years (AB 197).  They had never lived together, except for a brief period of two weeks in 2002 (AB 226 - 227).  On 1 April 2003, the relationship ended and on 2 June 2003, JCK moved to a unit in a block of residential units in Shelley, a suburb of Perth, to 'get away from' the appellant (AB 197 - 198).  About two months later, in August 2003, the appellant moved to the unit next door to JCK (AB 196, 198). 

   The restraining order prohibited the appellant from:

   (a)communicating or attempting to communicate with JCK;

   (b)entering JCK's unit;

   (c)going within five metres of the front entrance to her unit; or

   (d)going within five metres of her (AB 195, 312 - 313).

   In January 2004, the appellant commenced employment as a casual maintenance worker with the strata company constituted under s 32 of the Strata Titles Act 1985 (WA) in respect of the strata scheme applicable to the block of units where he and JCK lived (AB 201, 210 - 211, 280). By letter dated 16 July 2004 (AB 117), Moncrieff Realty (the manager of the block of units) requested the appellant not to carry out any gardening or maintenance on the common property adjacent to JCK's unit. The appellant asserted at the trial that he did not receive this letter (AB 229, 231, 318 - 319).

8. Proceedings alleging breaches of the restraining order were commenced by JCK on 4 March 2005.  The proceedings were conducted before Magistrate Lane.  The second respondent acted for the appellant.  After a trial, the magistrate found the charges of breach of the restraining order had been proved.  Buss JA in Cuijpers v Sander [No 2] referred to the nature of the charges and the evidence given at the trial as follows:

   The alleged breaches of the restraining order

   It was alleged that the appellant had breached the restraining order on three occasions, namely:

   (a)on 18 August 2004, by coming within five metres of JCK's front door, while carrying out maintenance work where JCK resided, by mulching her garden;

   (b)on 8 October 2004, by coming within five metres of JCK at the Broadwater Hotel at about 9 pm; and

   (c)on 8 October 2004, by coming within five metres of JCK, and asking her to dance, at the Broadwater Hotel at about 10 pm (AB 203 - 204, 305 - 306).

   Evidence relating to the first breach

   JCK said in evidence that she had been away from her home unit on the morning of 18 August 2004 (AB 196).  On returning, she found her garden (which was part of the common property) 'buried in mulch' (AB 196).  She said all of her garden was covered in mulch (AB 197, 236 - 237, 257).  It was up to a foot deep in places (AB 257).  The garden ran the length of her lounge room wall, and was within five metres of her front door (AB 196). 

   According to JCK, she had informed Moncrieff Realty of the restraining order and had been told by Sabina Moncrieff of Moncrieff Realty that, by letter dated 16 July 2004, the appellant had been instructed that the restraining order prevented him from working on JCK's unit and he should not do so (AB 199, 201).  Also see JCK's answer in cross-examination at AB 216, 221.

   JCK gave evidence that when she returned home on 18 August 2004, she saw the appellant at a distance (AB 199, 201).  She yelled at him that he knew he was not supposed to touch her garden.  JCK added:

   That was the agreement in the letter from Sabina Moncrieff from Moncrieff Realty who looked after our complex (AB 201).

   The prosecutor called Kyoungok Lee as a witness.  As at 18 August 2004, Ms Lee was residing at a unit in the block of units in question (AB 258).  She gave evidence of a conversation she had with the appellant:

   PROSECUTOR:   Okay.  Now, you've had a conversation with Fred [the appellant]?---Yes.

   And what was - - explain that conversation to the court?---Yes.  He said, 'Sorry about earlier on, what happened.'

   Yes?---And he had a bit of an argument with his neighbour, which is [JCK].

   Yes?---And the reason is that he touched her garden while she was out.

   Okay?---And he said that because he want to make a uniformed [sic] garden in that complex.  That's the only one reason he touched her garden.  And he said he received a letter from strata not to touch her garden, but he just want to make a uniformed [sic] garden, that's why he touched her - - her garden (AB 259 - 260).

   The appellant acknowledged in evidence that he was aware his employment by the strata company did not authorise him to breach the terms of the restraining order (AB 214).  He admitted mulching the garden on the morning in question (AB 236).  However, he said he did so without coming within five metres of JCK's front door.  In particular, he shovelled the mulch into the garden bed and then raked the mulch around the plants.  He said that in one part of the garden bed he left the mulch in a heap (AB 281, 282, 288).  The appellant denied having entered within five metres of JCK's front door (AB 291, 294), and he denied having mulched all of the garden bed (AB 293, 294).  According to the appellant, the whole of the garden bed was not within five metres of her front door (AB 294). 

   The appellant's main focus, in cross-examining JCK and Ms Lee, was the veracity of statements made in relation to the letter dated 16 July 2004 (AB 216 - 231, 261, 263).  On the appellant's application, a mail book of Moncrieff Realty had been subpoenaed.  Magistrate Lane refused to accept the mail book as an exhibit (AB 218, 220, 310).  She held it was irrelevant to the first alleged breach because the issue was whether the appellant had entered within five metres of JCK's front door, and not whether he had received notice from the manager that he must not do so (AB 313 - 315).  The appellant had been served with the restraining order and was aware of the limitations it imposed (AB 312 - 313) [13] ‑ [22].

9. Ultimately, in Cuijpers v Sander [No 2], the court concluded that Miller JA did not make any material error of law or fact and that the application for a review of his decision should be dismissed. 

10. It may be observed that in McKechnie J's reasons for decision, he pointed out that the letter of 16 July 2004, allegedly written by Moncrieff Realty, seemed to have very 'limited relevance' [5]. The appellant asserted that he had never received the letter. The letter of 16 July 2004, which the appellant is so concerned about, and which he alleges he did not receive, advised him not to do any gardening or maintenance on the common property adjacent to JCK's unit.

11. The appellant complained to the Legal Profession Complaints Committee about the second respondent's handling of the case and about the conduct of the lawyer on the other side.  The complaint about the lawyer on the other side was abandoned.  The appellant brought proceedings in the Supreme Court seeking a writ of mandamus concerning the committee's handling of the complaints.  The appellant's application was dismissed.  See Cuijpers vLegal Profession Complaints Committee.

12. The complaints the appellant made about the second respondent to the Legal Profession Complaints Committee were that he failed to object to the tender of the letter of Moncrieff Realty dated 16 July 2004, that he failed to call a prospective witness, a Ms Jenkins, and that he required Mr Cuijpers to leave court while another witness called by Mr Cuijpers' counsel, Mr Samut, gave evidence.  There was also a complaint about the costs charged by the second respondent. 

13. The first three allegations were found by the committee to have been vexatious and unreasonable and the complaint about costs was found to be unreasonable. 

14. The appellant then applied to SAT for a review of the decision. The appellant required leave pursuant to s 435(2) of the Legal Profession Act 2008 (WA) to apply for a review. He also required an extension of time in which to apply for a review.

15. As to the allegation that the second respondent failed to object to the tender of the letter of 16 July 2004, the tribunal noted the appellant's assertion that the letter was a forgery.  The tribunal concluded that the second respondent's decision not to assert that the letter was a forgery (and therefore object to it) could be justified on several grounds which are set out in the tribunal's reasons for decision between [44] ‑ [47].  They were all sound reasons.

16. As to the failure to call Ms Jenkins, the tribunal concluded that the second respondent's decision not to call Ms Jenkins was an exercise of the independent judgment he was required to exercise as an officer of the court.  There were good reasons for that decision as set out in the tribunal's reasons between [48] ‑ [51].

17. As to the decision requiring Mr Cuijpers to leave the court, this was a decision made because Mr Samut was called as a witness before the appellant and the second respondent was concerned that the appellant's evidence should not be given reduced weight because he remained in court and heard what Mr Samut said.  It was held that it was open to the second respondent to make a forensic decision to have the appellant outside the courtroom.  The reasons of the tribunal are sound reasons for concluding that there was no merit in the appellant's complaint in this regard. 

18. As to the complaint about costs, the tribunal noted that there was no reason to suggest that the committee's conclusion that the costs of $7,000 was not excessive was unreasonable.  The tribunal's reasons appear between [54] ‑ [56].  They provide sound reasons for concluding that the appellant's complaint was unreasonable.  At the hearing of this appeal, the appellant stated that he no longer wished to complain about the costs.

19. In the appellant's case, there are 16 paragraphs under the heading 'Grounds of Appeal'.  None of the grounds assert any error of law as required by s 105 of the SAT Act.  The 'grounds of appeal' are merely observations about the tribunal's reasons. 

20. As a result, the court concluded that none of the grounds of appeal had any reasonable prospect of succeeding, and as a result that the application for an extension of time should be refused, that the application for leave to appeal (required by s 105 of the SAT Act) should be refused, and that the appeal should be dismissed.  

21. It is only necessary to add that after the court pronounced the orders dismissing the appeal, but before the orders were sealed, the appellant filed more submissions.  He did not have leave to do so.  The additional submissions do not assist the appellant and provide no justification for recalling the orders.