Cuijpers v Legal Profession Complaints Committee
[2009] WASC 311
•15 OCTOBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: CUIJPERS -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2009] WASC 311
CORAM: HASLUCK J
HEARD: 15 OCTOBER 2009
DELIVERED : 15 OCTOBER 2009
FILE NO/S: CIV 2519 of 2009
BETWEEN: FREDERICK JOHAN CUIJPERS
Plaintiff
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
Defendant
Catchwords:
Administrative law - Prerogative Writs and Orders - Particular Tribunals or Bodies - Originating motion for order nisi for writ of mandamus - Whether an arguable case at ex parte stage that defendant had failed or refused to perform a duty imposed upon it - Purpose of the Legal Profession Act 2008 (WA) and role of Legal Profession Complaints Committee in enquiring into complaints regarding alleged unprofessional conduct - Powers of State Administrative Tribunal with respect to judicial review decision and powers of Supreme Court with respect to prerogative writs - Relief by way of mandamus refused as another avenue of relief is specifically provided for pursuant to s 435 Legal Profession Act 2008
Legislation:
Legal Profession Act 2008 (WA), s 401, s 410, s 435
Rules of the Supreme Court 1971 (WA), O 56
State Administrative Tribunal Act 2004 (WA), s 19
Result:
Ex parte application for writ of mandamus dismissed
Category: B
Representation:
Counsel:
Plaintiff: In person
Defendant: No appearance
Solicitors:
Plaintiff: In person
Defendant: No appearance
Case(s) referred to in judgment(s):
Hartwig v Builders Registration Board of Western Australia [2009] WASCA 138
HASLUCK J:
Introduction
The applicant, Frederick Johan Cuijpers, has applied to the Supreme Court for relief by way of a notice of originating motion dated 27 August 2009. He seeks an order nisi for a writ of mandamus directed to the Legal Profession Complaints Committee.
The terms of the application are that a writ of mandamus be served on the Legal Profession Complaints Committee and that the costs of and incidental to this application be paid by the Legal Profession Complaints Committee.
The application
The grounds of the application are said to be that the Legal Profession Complaints Committee, under their parliamentary duties in overseeing ethical conduct and professional behaviour by practitioners, remain complicit in case PE 1971/04 by not acting to engage the practitioners to the complaints lodged to their office of malpractice by practitioners and in not making the practitioners answer to the evidence before the Committee.
It is said also that the Committee should make available to the plaintiff the practitioners' responses to all the allegations the Committee may have received to date or receives from practitioners for further submissions by the plaintiff if required.
It is said further that the Complaints Committee should be required to act lawfully in accordance with their duties in a fair and even‑handed manner to remedy the matters before them.
Mandamus
The application for a writ of mandamus is allowed for by O 56 of the Rules of the Supreme Court 1971 (WA). It is provided in r 1 that an application for a writ of mandamus may be made ex parte to the court and must be supported by an affidavit. It is provided in O 56 r 2(1) that:
An application for an order to show cause shall be first listed before a judge in chambers.
Order 56 rule 2(2) is to this effect:
The Judge may -
(a)refuse the application; or
(b)make an order to show cause and order that it shall be heard by -
(i)a Judge in chambers or in court; or
(ii)the Court of Appeal,
and, unless an order to show cause is made, may do any or all of the following -
(c)direct that the application be decided by a Judge sitting in court;
(d)direct that notice of the application be served on such persons as the Judge directs;
(e)adjourn the hearing of the application.
Order 56 rule 6(1) is to this effect:
The grounds of the application and the relief sought must be set out in the order nisi or notice of motion, if any, and if the applicant intends to ask for any amendment at the hearing he must give notice of his intention and of the proposed amendment.
Put shortly, an applicant for a writ of mandamus at the stage of making an ex parte application must establish an arguable case that the body to whom the proposed writ is directed has refused to perform some duty imposed upon it or has misconceived the duty imposed upon it to such an extent that it might be said that there has been a refusal to perform the duty.
Thus, putting the position broadly at this early stage of these reasons for decision, it is incumbent upon the applicant in the present case to persuade the court that he has an arguable case to the effect that the Legal Profession Complaints Committee has failed or refused to perform a duty imposed upon it.
The facts of the matter
The application in the present case is supported by the affidavit of Frederick Johan Cuijpers sworn 1 September 2009. I will not refer to the contents of that affidavit in their entirety because, with respect to the deponent, the affidavit does not contain a very complete or succinct presentation of what appears to be the nature of his grievance.
In the course of the hearing, by reference to the affidavit, and certain discussion and correspondence that has been handed up to me, the nature of his grievance can perhaps be summarised in general terms in this way.
It seems that in 2004 a person who I will call K sought a restraining order against the plaintiff. This matter was listed to be heard before a magistrate in March 2005. On the hearing of that matter the plaintiff in these present proceedings, Mr Cuijpers, was represented by a legal practitioner I will call B.
The hearing proceeded and the contention of the plaintiff now is - looking at the matter with the benefit of hindsight - that he was not represented as ably as he ought to have been at the hearing before the magistrate, with the result that evidence adduced by the other side in the form of an important document dated 16 July 2004 was allowed into evidence when there was a basis for contesting its admissibility.
It is said also that, as a result of events at the hearing, witnesses supporting the plaintiff's case were not called to give evidence, and in other respects, according to the plaintiff, his case was badly presented.
It is said by the plaintiff that as a consequence a ruling was made against him by the magistrate with the result that a restraining order was made. Other consequences followed at a later date in that there was a charge brought against him of breaching the restraining order.
Subsequent events
Because of his grievance about these matters, it seems that in mid 2006 the plaintiff made an approach to the Complaints Committee now operating under the provisions of the Legal Profession Act 2008 (WA).
It appears from what is said in the plaintiff's supporting affidavit that the Complaints Committee, by their officers, commenced some inquiries or investigation into the matters of complaint involving not only the legal practitioner B, who had represented the plaintiff at the hearing, but also involving the conduct of another practitioner who was representing the plaintiff's opponent at the hearing before the magistrate.
It seems that these inquiries have been continuing, and the indications are that the inquiries are still ongoing, because thus far the plaintiff has not been able to identify to my satisfaction any document that can be described as the decision of the Complaints Committee to dispose of the complaints brought before it one way or another; that is to say, to either uphold the complaint or reject it or to make some other order.
It is difficult to ascertain from the materials why this is so after such an extensive period. However, it does appear that, in the meantime, other litigation has been taking place, including litigation concerning the authenticity of the 16 July document I mentioned a moment ago. It seems that these matters and other grievances may have added an extra layer of complexity to the matters in issue, and this may have resulted in delays and difficulties in resolving the complaints brought before the Committee.
The present proceedings
It is against this background that the plaintiff challenges the regularity of what has occurred. I have to say at the outset that the affidavit of the plaintiff sworn 1 September 2009 is clearly not sufficient of itself to raise an arguable case that there has been a refusal to perform a duty by the Complaints Committee.
If, in the course of discussion at the hearing, it had been conveyed to me, by reliance upon correspondence or otherwise, that the affidavit could be supplemented, that is, by singling out documents evidencing a refusal to perform the duty (or a failure to perform it in the proper way), then pursuant to the Rules of Court I mentioned earlier, that might have been sufficient to persuade me that the appropriate course was to adjourn this application so that a further affidavit could be filed by way of supplementary evidentiary material.
I have to say, however, having looked at the correspondence, that I am not persuaded that this would be the appropriate course. The correspondence placed before me as material, in a sense, supplementary to the affidavit previously filed, suggests that, as a result of the complexity I have described, the Complaints Committee has not yet come to a final position in regard to the matters in issue. It is therefore difficult to arrive at a conclusion that there has been a failure or refusal by the Committee to perform its duty.
Statutory provisions
The nature of the duties to be performed by the Complaints Committee are described in the Legal Profession Act (WA), being the legislation now governing its activities.
The complaints and discipline provisions commence at s 401 of the Act. It is said in that provision that the purposes of the Act are to provide for the discipline of the legal profession. Provision is made for inquiry into unprofessional conduct.
The position can be described in this way. The Legal Profession Complaints Committee has the role of supervising the conduct of legal practitioners in Western Australia. Its role is to ensure ethical conduct and professional behaviour in the legal profession. It consists of legal practitioners appointed for that purpose, with provision for community representation. The Committee has the power to investigate cases to see whether a legal practitioner may be guilty of a professional conduct matter.
Professional conduct matters for legal practitioners usually fall into two categories, being unsatisfactory professional conduct or professional misconduct. Section 410 provides for any complaints to be directed to the Complaints Committee or through the law complaints officer. Provision is made for investigation and ultimately for a decision of the Complaints Committee after investigation.
Importantly, s 435 of the Legal Profession Act deals with review of the Committee's decision. Under s 435, a person aggrieved by a decision of the Committee to dismiss a complaint or to impose an order in the exercise of its summary conclusion powers may apply to the State Administrative Tribunal for a review of the decision.
An exception to this right is if the Committee specifically finds the complaint to be trivial, unreasonable, vexatious or frivolous, or to be a matter in which the complainant lacked a direct personal interest. If this is the case the complainant must apply to the Tribunal for leave for a review of the decision.
It is clearly contemplated by the Legal Profession Act itself that, if there is thought to be some necessity to review the decisions for the regularity of the procedures of the Complaints Committee, the appropriate avenue of relief is to the State Administrative Tribunal.
State Administrative Tribunal
The State Administrative Tribunal is constituted pursuant to the State Administrative Tribunal Act 2004 (WA).
There is no need to traverse the entire nature of the Tribunal's jurisdiction for present purposes. However, importantly, one notices that by s 19 of that Act reference is made to judicial review proceedings. This is defined to mean proceedings in which any of the following is sought: a writ of certiorari, mandamus or prohibition, another prerogative writ, or a declaratory judgment. It is said that the right by an enabling Act to have a decision reviewed by the State Administrative Tribunal does not exclude any right to take judicial review proceedings in relation to the decision.
In other words, it is contemplated by the State Administrative Tribunal Act that, even though an Act such as the Legal Profession Act provides for and contemplates that a review process will be undertaken by the State Administrative Tribunal, it is still open to a party to seek relief by way of mandamus from the Supreme Court.
However, that right is qualified by considerations of the kind dealt with by s 19 of the State Administrative Tribunal Act which allows for the possibility of the Supreme Court determining that the approach to the Supreme Court for relief by way of mandamus is inappropriate, or if it is thought by the Supreme Court that a Tribunal proceeding would be more appropriate.
Discretionary considerations
The provisions under discussion reflect the position at common law concerning the discretionary considerations that bear upon relief by way of mandamus. The relevant considerations are conveniently expressed in this way at par 56.0.7 of Seaman, Civil Procedure:
The court has a discretion whether or not to grant a prerogative writ where the defect is not jurisdictional: Waterside Workers' Federation of Australia v Gilchrist, Watt & Sanderson Ltd (1924) 34 CLR 482 at 517, 518, 519.
The writ of mandamus is not a writ of right. Nor is it issued as of course. There are well‑settled grounds upon which a court may, in its discretion, withhold the remedy.
It is said further at par 56.1.1 of the same text that:
The purpose of the order nisi for a writ of mandamus or threshold stage by way of the ex parte application required by r 1 is to prevent the time of the court being wasted by people with misguided or trivial complaints of administrative error.
In reviewing, it is said further at par 56.15.1 of the same text:
A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If what the person claiming to perform the duty does amounts in law to no performance because he or she has misconceived his or her duty, he or she may be commanded by the writ to execute his or her function according to law de novo if a sufficient demand or request to do so has been made upon him or her. The same command applies if, in the course of attempting to discharge it, that person has failed to comply with some requirement essential to its valid or effectual performance.
As I review these provisions and the discretionary considerations, I bring to account also certain observations that were made in the case of Hartwig v Builders Registration Board of Western Australia [2009] WASCA 138 by Wheeler J at [3] to this effect:
I acknowledge that SAT was intended to provide procedures which were informal, expeditious, relatively economical, and designed to focus on the correct decision or outcome, without undue attention to the procedure by which that outcome was reached (see s 27 and s 32 of the State Administrative Tribunal Act2004 (WA) (SAT Act), in particular). However, the SAT Act itself draws a distinction between the tribunal's original jurisdiction and its review jurisdiction. Different issues arise, and it may be that different procedures are appropriate, in relation to each of those jurisdictions. That is a distinction which cannot be simply ignored. Further, it is important to recall that the SAT Act provides a means for the determination of real, rather than hypothetical, controversies. It is the antithesis of an expeditious and economical proceeding, for the tribunal to determine a question unless it is very clear that the question will have some practical effect upon the rights of the parties before it.
That passage underlines why the avenue of relief to the Tribunal provided by s 435 of the Legal Profession Act should apply. The Tribunal will have a greater capacity to inquire into the merits of the matter while as relief by way of mandamus, or by way of the other prerogative writs, will be essentially directed to the regularity of what has occurred, and as to whether some decision which has been made should be quashed or should be the subject of a compelled duty to provide such a decision.
It is against this background that I now return to the circumstances of the present case.
The present case
It is not clear to me on the evidentiary materials before me, or even on evidentiary materials of the kind that might possibly be brought before me, having regard to the correspondence I have seen, that there has been a clear and sufficient demand made of the Complaints Committee to perform its duty. Even if that were not the case, the evidence before me does not demonstrate to my satisfaction that there is an arguable case of a failure or refusal to perform the duty.
I can well understand the plaintiff's sense of dissatisfaction and frustration that the matter of his complaint is not being dealt with as expeditiously as he would wish. As matters stand, however, the indications on the evidence before me are that the matter of inquiry is still proceeding. It therefore becomes difficult to identify any failure or refusal to perform the duty or that there has been a misconception as to the nature of the duty. For that reason I would have been disinclined to make an order on an ex parte basis for a writ of mandamus.
However, more importantly for present purposes, I do consider that in the exercise of its discretion the Supreme Court should not grant a relief of the kind proposed essentially because there is another avenue of relief specifically provided for by s 435 of the Legal Profession Act. This would allow for the actions of the Complaints Committee to be reviewed by the State Administrative Tribunal. The Tribunal is better placed to inquire into the merits and procedural aspects of the grievance raised by the plaintiff.
It therefore seems to me, having regard to the authorities I have quoted, that the application for relief by way of mandamus should be refused upon the ground that it is not appropriate that an order nisi for mandamus be granted in these circumstances.
I emphasise this point out of fairness to the plaintiff, Mr Cuijpers, because s 19 of the State Administrative Tribunal Act makes it clear that, if a party applies for a relief by way of a judicial review proceeding to the Supreme Court, it is not then open to him to apply to the State Administrative Tribunal for relief.
However, that basic position is subject to a very specific exception enunciated in s 19(5) of the State Administrative Tribunal Act where it is said that the rule I have just described does not apply if the judicial proceeding in the Supreme Court is dismissed or struck out because the court considers that avenue of relief to be inappropriate or considers that a Tribunal proceeding will be more appropriate.
Thus, I specifically emphasise that I am refusing to provide relief by way of mandamus in this judicial proceeding upon the basis that a Tribunal proceeding would be more appropriate. I do that expressly and specifically so that it will be established that it remains open to the plaintiff, Mr Cuijpers, to pursue an avenue of relief in respect of his grievance against the Complaints Committee pursuant to s 435 of the Legal Profession Act. It is for that specific reason that I am making this ruling and declining to make an order nisi for a writ of mandamus.
It is, however, desirable that I add, in closing, that the plaintiff should take steps to try and ascertain more exactly what stage the Complaints Committee inquiry has reached and whether a specific decision has been made by that Committee and whether there are any reasons available in respect of it.
If the plaintiff is furnished with further information of that kind he will then be better placed to determine whether he has a basis for applying for a review to the State Administrative Tribunal pursuant to s 435 of the Legal Profession Act.
That is the ruling I make in respect of this matter. For these reasons I will dismiss the plaintiff's application made by way of the notice of originating motion dated 27 August 2009. It is not necessary to make any order as to costs.
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