DE-ABREU and LEGAL PROFESSION COMPLAINTS COMMITTEE

[2022] WASAT 42

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: LEGAL PROFESSION ACT 2008

CITATION:   DE-ABREU and LEGAL PROFESSION COMPLAINTS COMMITTEE [2022] WASAT 42

MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT

MR J O'SULLIVAN, SENIOR MEMBER

MS R LAVERY, MEMBER

HEARD:   DECISION ON THE DOCUMENTS

DELIVERED          :   18 MAY 2022

FILE NO/S:   VR 163 of 2019

BETWEEN:   JADE DE-ABREU

Applicant

AND

LEGAL PROFESSION COMPLAINTS COMMITTEE

First Respondent

SEAMUS RAFFERTY

Second Respondent

Catchwords:

Vocational regulation ­ Review of decisions dismissing complaints about legal practitioner ­ Whether there is any reasonable likelihood that the Tribunal might find practitioner guilty of unsatisfactory professional conduct or professional misconduct if matter referred to it ­ Complaints of failure to enter into costs agreement, costs disclosure, competence, and discourtesy

Legislation:

Criminal Appeals Act 2004 (WA), s 28(3), s 28(4)
Criminal Code (WA), s 313
Criminal Procedure Act 2004 (WA), s 45(5)
Legal Profession (Supreme Court and District Court) (Criminal) Determination 2016, cl 4(d), cl 9(a)
Legal Profession Act 2008 (WA), s 260, s 260(1), s 262, s 269(1)(b), s 282, s 291, s 291(1), s 402, s 403, s 410(1)(e), s 415, s 421(2), s 421(3)(b), s 424(1), s 425, s 425(a), s 426, s 428, s 435
State Administrative Tribunal Act 2004 (WA), s 17(1), s 27, s 29(3)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant	:	N/A
First Respondent	:	N/A
Second Respondent	:	N/A

Solicitors:

Applicant	:	In Person
First Respondent	:	Legal Profession Complaints Committee
Second Respondent	:	N/A

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

Council of the Law Society of NSW v Berger (No. 2) [2018] NSWCATOD 4

De­Abreu v The State of Western Australia [2020] WASCA 145

Greenwood and Legal Profession Complaints Committee [2010] WASAT 31; (2010) 70 SR (WA) 144

Legal Services Commissioner v Bentley (No 5) [2021] QCAT 226

Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331; (2018) 12 ARLR 135

Quinlivan and Legal Profession Complaints Committee[2012] WASAT 98

SJX and Legal Profession Complaints Committee [2012] WASAT 154

Victorian Legal Services Commissioner v Szwider (Legal Practice) [2019] VCAT 505

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction and Overview

1. The applicant was convicted in March 2015, following a trial in the District Court, of multiple serious sexual and related offences. In September 2017 he sought advice from the second respondent, Mr Rafferty, who had not been trial counsel, as to the prospects of success on appeal.  Such advice was given very early in January 2018.

2. Almost immediately the applicant complained that the advice was premature as, it was said, further investigations had not been carried out.  Mr Rafferty denied that such investigations formed part of his retainer.

3. In August 2018 the applicant complained to the first respondent that Mr Rafferty had failed to return his 'legal brief'.  By further correspondence between the applicant and the first respondent, the applicant expanded the matters of complaint to six grounds.

4. After a premature application for review to the Tribunal, the grounds of complaint further expanded to 11 grounds, which were then the subject of consideration and determination by the first respondent.

5. Grounds 1 to 5 complain that Mr Rafferty failed to comply with various of his statutory obligations concerning costs and their disclosure.  Grounds 6 to 8 complain about the scope and quality of Mr Rafferty's advice.  Grounds 9 and 10 are complaints about the manner in which Mr Rafferty dealt with documents that the applicant provided to him. Ground 11 complains that Mr Rafferty failed to respond to correspondence.

6. Each of the grounds of complaint were dismissed by the first respondent, which found that grounds 3, 4, 5 and 9 were 'lacking in substance'.

7. On review of a decision by the first respondent dismissing a complaint the Tribunal must determine whether there is any 'reasonable likelihood' that the practitioner would be found guilty of either unsatisfactory professional conduct or professional misconduct.

8. In each case we answer that question in the negative.  As a result, the application is dismissed, and the decision of the first respondent is affirmed.

The Applicant's Charges and Trial

1. On 16 March 2015, the applicant was arraigned in the District Court on an indictment which contained 13 counts relating to offences allegedly committed by the applicant against two adult complainants.

2. Counts 1 to 4 concerned Ms S and included charges of aggravated sexual penetration without consent, aggravated indecent assault and two charges of aggravated assault occasioning bodily harm.  Counts 5 to 13 concerned Ms F.  Those charges included four counts of aggravated sexual penetration without consent, deprivation of liberty, aggravated indecent assault and two counts of compelling another to engage in sexual activity.  Count 13 alleged that the applicant unlawfully assaulted Ms F and thereby did her bodily harm in circumstances of aggravation.

3. Upon his arraignment, the applicant pleaded guilty to count 13 and not guilty to the balance of the counts.

4. On 25 March 2015, after a trial before Eaton DCJ and a jury, the applicant was found guilty as charged on all counts in respect of Ms F and one count of aggravated assault occasioning bodily harm in respect of Ms S.

5. On 13 August 2015 Eaton DCJ imposed a total effective sentence of 10 years' imprisonment, backdated to commence on 26 August 2013 with eligibility for parole.

The Applicant Briefs Mr Rafferty

1. In September 2017 the applicant contacted Mr Rafferty[1] by telephone from Acacia Prison and asked him to act in respect of a potential appeal against the convictions.

   [1] Mr Rafferty by email of 23 November 2020 advised that he did not wish to participate in this proceeding and will abide by the decision.

2. It is worth noting that by that stage the time for appealing the conviction had passed by approximately two years.[2]

   [2] Criminal Appeals Act 2004 (WA), s 28(3) provides that application for leave to appeal conviction runs from 21 days of the date of sentence (see also s 28(4)).

3. The applicant has maintained what appears to be a quite thorough record of all of his communications in what he calls his 'Log Books'.  Despite this, there appears to be no record of his telephone communication with Mr Rafferty.

4. However, the Log Books record that the applicant sent a package of materials to Mr Rafferty on 25 September 2017 and, on 26 September 2017, that he organised the payment to Mr Rafferty of a sum of money for a 'preliminary opinion'.[3]

   [3] Applicant's Log Book No. 5, page 49.

5. The applicant also sent a letter to Mr Rafferty dated 24 September 2017,[4]  which states that the applicant had retained in his possession medical records and that he had sent by registered post to Mr Rafferty the following documents:

   [4] First Respondent's Bundle of Documents (Bundle), page 13.

   (a)Notes made by me during the trial

   (b)other Notes in formulating my appeal

   (c)indictment statements etc.

   (d)a copy of my first appeal draft.

   (e)a cronological timeline of events.

   (f)transcripts with my Notes + formulations.

   (g)my final draft of my grounds of appeal submissions x23p,[5] and photos of assault on me …

   (h)further notes in Red in seprate sleeve on appeal issues in transcripts file.[6]

   [5] The Tribunal understands 'x23p' to state that the final draft consisted of a document 23 pages in length, but it appears immaterial in any event.

   [6] All quotes in italics are direct quotes taken from the applicant's documents and, in two cases, those of his brother. Despite the absence of the term '(sic)', the inclusion of quite idiosyncratic spelling, use of capitals and grammar is not a transcription error.

6. By letter dated 9 October 2017 Mr Rafferty wrote to the applicant attaching a 'trust account receipt acknowledging $5,000.00 deposited into [Mr Rafferty's] trust account'.[7]

   [7] Bundle, page 14.

7. Based on the above documentary records it seems reasonably clear that Mr Rafferty and the applicant verbally agreed that Mr Rafferty would provide an advice on prospects of success in relation to a possible appeal against conviction on the basis of a fixed fee of $5,000 (or, possibly, that the total sum would not exceed that amount) and that that sum would be received and placed in trust by Mr Rafferty before he commenced work.

8. Mr Rafferty provided his advice on the prospects of appeal by letter dated 2 January 2018.[8]

   [8] Bundle, pages 16­22.

9. Prior to that date there were some exchanges between the applicant and Mr Rafferty.

10. On 28 November 2017 the applicant by phone call requested Mr Rafferty to send to the applicant a 'technical drawing' of Maylands Hall[9] and by letter dated 14 December 2017 Mr Rafferty wrote to the applicant saying, amongst other things, that he 'attached [the] sketch as requested'.[10] 

    [9] Applicant's Log Book No. 5, page 69.

    [10] Bundle, page 56.

11. The sketch is on a piece of paper dated 19 March 2015 and is headed 'Perth ­ District Court'.  It appears to be a note and drawing made by the applicant during his trial in the District Court.  Given that, and the exchange of correspondence, it appears that the sketch was included in the materials provided by the applicant to Mr Rafferty as part of his instructions and was, upon request, returned to the applicant.

12. A letter in identical terms to that dated 14 December 2017 was also sent by Mr Rafferty to the applicant dated 21 December 2017.[11]  Both letters were recorded by the applicant in his Log Book.[12]

    [11] Bundle, page 55.

    [12] Applicant's Log Book No. 5, pages 79 and 81.

13. The letters from Mr Rafferty dated 14 and 21 December 2017 also confirm that Mr Rafferty was 'in receipt of the PathWest letter [which the applicant had] previously forwarded to [Mr Rafferty’s] office'.  

14. Although Mr Rafferty's letters of 14 and 21 December 2017 refer to the 'PathWest letter' in the singular, the materials before us contain two, related, letters from PathWest. [13]  The first is dated 9 May 2017 and is from PathWest to the Director of Public Prosecutions (DPP).  The second is dated 11 October 2017 and is from PathWest to the applicant.  The 11 October 2017 letter encloses the 9 May 2017 letter to the DPP.  The 9 May 2017 letter to the DPP refers in turn to the DPP's letter of 21 April 2017, a copy of which is not before us.  The subject of both letters appears to be (based on the later letter to the applicant and the applicant's handwritten notes on that letter) possible implications as to the integrity of the applicant's trial arising out of what appear to be allegations of breaches of protocols by a senior member of PathWest.  The 9 May 2017 letter to the DPP sets out PathWest's view that the involvement of that person with the applicant's trial was so minimal that it raised no risk to the integrity of the trial.

    [13] See, for example, Bundle, pages 262­263.

15. A third exchange occurred by letter dated 30 December 2017 when the applicant wrote to Mr Rafferty and asked that he 'acquire a copy of the trial transcript' and send a copy of it to a Ms M.  This is a matter to which we return below.

Mr Rafferty's Advice to the Applicant

1. As noted above, by letter dated 2 January 2018, Mr Rafferty provided his advice as to the prospects of success of a possible appeal, concluding that there were no arguable grounds of appeal available.[14]

   [14] Bundle, pages 16­22.

2. The advice begins by noting four matters to which Mr Rafferty had regard in preparing the advice, namely:

   1.Notes provided by [the applicant];

   2.Copy of draft Appellant's Case;

   3.Chronology;

   4.Trial transcript.

3. Mr Rafferty then described each of the 12 counts to which the applicant had pleaded not guilty and identified the relevant pages of transcript on which each of the various witnesses gave evidence.  Having done so, Mr Rafferty's advice notes that the applicant had put forward 'no positive defence' at the trial, and that the 'only live issue at the trial was therefore whether the jury was satisfied beyond reasonable doubt that the complainants were credible witnesses'.  Mr Rafferty then identified the relevant statutory framework, went through the various directions given to the jury by Eaton DCJ as the trial judge, and then set out each of the applicant's four proposed grounds which are addressed and dismissed in turn. 

4. The advice concludes by reference to the medical records which the applicant in his letter of 24 September 2017 states he was in possession of, and which show the extent of very serious injuries.  Mr Rafferty notes that those matters:

   … were raised by you with the trial Judge at the conclusion of his charge to the jury.  It is not clear how you contend that this information was relevant to the issues before the jury or how it could be contended that the failure to adduce such evidence amounts to a miscarriage of justice. In any event, I am of the opinion that the evidence (were it to be suggested to show a hostility between one or both complainants towards yourself to the extent that they had fabricated their evidence or for some other purpose) had no probative value and was not relevant to any fact in dispute in the trial.

5. The advice concludes that in Mr Rafferty's opinion 'there are no arguable grounds of appeal against conviction'. 

6. Mr Rafferty then goes on to state that a tax invoice was attached to the advice and asked the applicant to 'arrange for the collection of the materials that you forwarded to me at your earliest convenience'.

7. Despite the advice of Mr Rafferty stating that a tax invoice was attached to it, the copy of Mr Rafferty's tax invoice provided to us is dated 9 January 2018.[15]  Nothing appears to turn on this.

The Applicant's Response to the Advice

[15] Bundle, page 24.

1. On 16 January 2018, the applicant wrote to Mr Rafferty expressing his surprise that Mr Rafferty had 'gone ahead with an Opinion and taken moneys out of trust for it' in circumstances in which he says he had understood that:

   … we had agreed that you would chase up essential evidence, like a full copy of the trial transcript, the Disclosure Certificate pursuant to section 45(5) of the Criminal Procedure Act 2004, CCTV footage not shown to my Jury and Medical records showing incapacity to commit offences that were alledged .

   You need to have all of this evidence prior to giving your opinion.[16]

   [16] Bundle, page 25.

2. The applicant, in addition, complained that he hadn't 'signed a cost agreement … as we were still in the preparatory stages of the appeal'.[17]

   [17] Bundle, page 25.

3. By way of response, Mr Rafferty wrote a letter dated 29 January 2018 which stated, amongst other things:[18]

   (a) That during the telephone conversation between the applicant and Mr Rafferty in September 2017, Mr Rafferty advised that he would need to 'consider the trial transcript and prepare an opinion before [he] would be prepared to act on the appeal … [and that] Only if [he] was satisfied that a proposed ground or grounds of appeal had merit, would [he] be prepared to act'.

   (b)He had advised the applicant that 'the cost of the opinion would be $5,000 … [which] was subsequently transferred into [Mr Rafferty's] trust account … and after speaking with [the applicant's] brother by telephone';

   (c)By letter dated 24 September 2017 the applicant had 'indicated the items that were sent … by registered post.  Significantly, no further instructions were provided in that letter that were contrary to what we had previously discussed';

   (d)By way of letter dated 30 December 2017 the applicant asked Mr Rafferty to 'get a copy of the trial transcript (which [the applicant] had already provided …) and to send a copy of the transcript to [Ms M]', and that Mr Rafferty had 'never agreed to "chase up essential evidence" and was working on the basis that [he] would provide an advice to [the applicant] based on the materials provided'.  He further said that a costs agreement is 'not a perquisite (sic prerequisite) for representation of a client' and that he had advised the applicant of the terms of his representation and that '$5,000 was subsequently deposited into [his] trust account which was to be payment for the provision of the appeal advice'.

   [18] Bundle, pages 27­28.

4. On 10 August 2018, the applicant commenced proceedings against Mr Rafferty in the Magistrates Court seeking repayment of the $5,000 plus costs.  Several of the grounds of complaint by the applicant in these proceedings formed the basis of the claim in the Magistrates Court proceeding.  On 3 December 2018, Mr Rafferty's application for summary judgment was granted and the applicant's claim was dismissed.

The Applicant's Complaint to the First Respondent

1. By letter dated 10 October 2018[19] the applicant complained to the first respondent that Mr Rafferty had not returned the applicant's 'legal brief' which, he said, had caused him loss.  It is worth remembering in this regard that by his advice of 2 January 2018 Mr Rafferty had asked the applicant to arrange for the materials to be collected.

   [19] Bundle, page 39.

2. There was an exchange of correspondence between the first respondent and the applicant dated 19 November 2018,[20] 26 November 2018,[21] 1 December 2018,[22] 5 December 2018, 10 December 2018[23] and 30 January 2019.[24]

   [20] Bundle, pages 42­43.

   [21] Bundle, page 45.

   [22] Bundle, page 46.

   [23] Bundle, pages 47­49.

   [24] Bundle, page 50.

3. In June 2019 a legal officer of the first respondent's Rapid Resolution Team (RRT) advised the applicant that, having reviewed all of the material provided by him, she had not identified any conduct requiring further consideration in respect of the applicant's concerns.[25]  That letter addressed six complaints raised by the applicant being:

   1.An alleged failure to provide a costs agreement;

   2.An alleged failure to provide an itemised account;

   3.An alleged failure to follow the instructions of the applicant;

   4.An alleged failure to comply with s 269(1)(b) of the Legal Profession Act 2008 (WA) (LPAct);

   5.An alleged failure to provide costs disclosure; and

   6.An alleged failure to comply with s 291 of the LP Act.

   [25] Bundle, pages 67­70.

4. The applicant, under letter dated 20 November 2019, applied to this Tribunal for a review of the 'decision' of 20 June 2019.

5. The first respondent then applied to dismiss the application for review on the grounds that the RRT's letter of 20 June 2019 did not constitute a 'decision' and the Tribunal therefore lacked jurisdiction.

6. On 13 February 2020 the Tribunal made orders that:

   1.The application is adjourned to a date to be fixed following a decision by the respondent in relation to the applicant's complaint.

   2.Within 7 days after making the decision (if the decision is to dismiss the complaint or to deal with the complaint under s 426 of the Legal Profession Act 2008 (WA)) the respondent is to advise the Tribunal that the decision has been made.

   3.…

7. In compliance with those orders, the first respondent wrote to the applicant on 2 June 2020[26] seeking to understand the full extent of the nature of the complaints made by the applicant against Mr Rafferty.  That letter set out 10 matters which the first respondent appears to have gleaned from various correspondences and arranged into a list.  The first respondent then asked the applicant to provide some additional information and to 'confirm […] the nature of your complaint'.

   [26] Bundle, pages 113­115.

8. On 19 June 2020 the applicant responded to the first respondent's letter of 2 June 2020 providing some clarification and otherwise confirming the grounds of complaint.[27]

   [27] Bundle, pages 117­118.

9. The 11 grounds of complaint that were the result of that exchange of correspondence were then put to Mr Rafferty by the first respondent's letter of 27 July 2020[28] and were then considered by the first respondent, which determined the complaint by letter dated 26 October 2020.[29] 

Legal framework and principles

[28] Bundle, page 119.

[29] Bundle, page 1.  The 11 grounds of complaint are set out in pages 1 and 2 of the letter.

1. Section 410(1)(e) of the LP Act enables a complaint about an Australian legal practitioner to be made to the first respondent by 'any … person who has or had a direct personal interest in the matters alleged in the complaint'. There can be no doubt that the applicant had a direct personal interest in the matters alleged in his complaints about Mr Rafferty.

2. Section 415 of the LP Act provides for summary dismissal of a complaint. Section 415(1) provides that the first respondent 'may dismiss a complaint' in certain circumstances. Relevantly they include paragraph (b): if 'the complaint is vexatious, misconceived, frivolous or lacking in substance'. As noted above, the first respondent dismissed complaints 3, 4, 5 and 9 on the basis that each complaint was lacking in substance.

3. Section 415(2) of the LP Act provides for circumstances in which the first respondent 'must dismiss a complaint'. That subsection has no application in this case. Section 415(3) provides that the first respondent may dismiss a complaint under this section 'without completing an investigation if, having considered the complaint' it forms the view that 'the complaint requires no further investigation'. That subsection also has no application in this case as each of the complaints was fully investigated.

4. Section 421 of the LP Act provides that the first respondent must investigate each complaint made to it unless, amongst other things, the complaint is dismissed.[30]

   [30] Sections 415 and 425 provide for the dismissal of a complaint. Section 415 allows for summary dismissal while s 425 provides for dismissal ‘[a]fter an investigation of a complaint … is completed’. The reference in s 421(3)(b) to a complaint that is ‘dismissed’ therefore appears to be limited to summary dismissal under s 415.

5. Section 424(1) of the LP Act provides that, after an investigation is completed, the first respondent must take one of the following three actions:

   a.dismiss the complaint under s 425 of the LP Act;

   b.take action under s 426 of the LP Act; or

   c.refer the matter to the Tribunal under s 428 of the LP Act.

6. Section 425 of the LP Act empowers the first respondent to dismiss a complaint in terms which relevantly include the following:

   After an investigation of a complaint against an Australian legal practitioner is completed, the Complaints Committee may dismiss the complaint if satisfied that —

   (a)there is no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct[.]

   …

7. In this case the first respondent dismissed complaints 1, 2, 6, 7, 8, 10 and 11 pursuant to s 425(a) of the LP Act.

8. If it does not dismiss a complaint under s 425 of the LP Act, s 426ִ of the LP Act empowers the Committee to take summary action in relation to the complaint.

9. Section 428 of the LP Act states as follows:

   (1)If the Complaints Committee determines that a matter should be heard by the State Administrative Tribunal the Committee may refer the matter to the Tribunal.

   (2)The Complaints Committee is not limited under subsection (1) by the terms of any complaint it has received or by the subject matter of any investigation it has conducted and is not required to conduct an investigation before referring a matter to the State Administrative Tribunal.

10. The terms 'unsatisfactory professional conduct' and 'professional misconduct' are non-exhaustively defined in s 402 and s 403 of the LP Act respectively as follows:[31]

    [31] Original emphasis.

    For the purposes of this Act —

    unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

    professional misconduct includes —

    (a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

    (b)conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

    (2)For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.

11. The meaning of the expression 'reasonable likelihood' in s 425 of the LP Act was discussed by the Tribunal in Greenwood[32] as follows:

    The meaning of the phrase 'reasonable likelihood' in the context of s 425 of the LP Act is synonymous with the phrase 'reasonably likely'. The meaning of that phrase was discussed in Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 at [842] (Marks J, Young CJ and Teague J agreeing) in the following passage:

    The relevant expression here is 'reasonably likely' which has some analogy to 'fair probability'.  It suggests the mathematical approach; the word 'reasonably' being a qualification of 'likely', alternatively, a measure in colloquial language of the likelihood. 

    The expression 'reasonably likely' is substantially idiomatic, its meaning not necessarily unlocked by close dissection.  In its ordinary use, it speaks of a chance of an event occurring or not occurring which is real ­ not fanciful or remote.  It does not refer to a chance which is more likely than not to occur, that is, one which is 'odds on' or where between nil and certainty it should be placed.  A chance which in common parlance is described as 'reasonable' is one that is 'fair', 'sufficient' or 'worth noting'.

    Those observations are equally apt to describe the meaning of 'reasonable likelihood' in s 425 of the LP Act.

    In considering whether there is a reasonable likelihood that a practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct, it is also necessary to bear in mind the Tribunal's approach to the proof of matters referred to it under s 428(1) of the LP Act. It is well recognised that the consequences for a practitioner of an adverse determination are such that clear and cogent evidence will be required before a finding of unsatisfactory professional conduct or professional misconduct is made: Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42 at [63]. That follows from the fact that although the standard of proof is on the balance of probabilities, nevertheless the Tribunal must feel an 'actual persuasion' of the occurrence or existence of a relevant fact in determining whether or not conduct of that kind has been made out: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 362 (Dixon J).

    [32] Greenwood and Legal Profession Complaints Committee [2010] WASAT 31; (2010) 70 SR (WA) 144 at [27] - [29].

12. Section 435 of the LP Act confers a right of review by the Tribunal on a person aggrieved by a decision of the first respondent to dismiss a complaint in terms which relevantly include the following:

    (1)Subject to subsection (2), a person aggrieved by —

    (a)a decision of the Complaints Committee to dismiss a complaint; …

    may apply to the State Administrative Tribunal for a review of the decision.

    (2)If the Complaints Committee, in its reasons for its decision, specifically finds the complaint —

    (a)to be trivial, unreasonable, vexatious or frivolous;

    …

    the person aggrieved cannot apply to the State Administrative Tribunal for a review of the decision without the leave of the Tribunal.

13. Section 17(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) states as follows:

    If the matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction.

14. As the matters that the enabling Act in this case give the Tribunal jurisdiction to deal with, namely s 435(1)(a) of the LP Act, expressly involve the review of decisions, this matter comes within the review jurisdiction of the Tribunal under s 17(1) of the SAT Act.

15. Section 27 of the SAT Act states as follows in relation to review proceedings in the Tribunal:

    (1)The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made.

    (2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.

    (3)The reasons for decision provided by the decision-maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.

16. As the Court of Appeal observed and held in Ord Irrigation[33]:

    Section 27(1) of the SAT Act require[s] that the Tribunal's review of [a reviewable] decision be by way of a hearing de novo. In the context of the SAT Act, the phrase 'hearing de novo' bears its ordinary meaning recently described in Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2018] WASCA 32 at [61]:

    An appeal by way of hearing de novo involves a fresh hearing, and the appellate body may overturn the decision appealed from regardless of error.  It is an exercise of original, not appellate, jurisdiction.  Where the statutory provision indicates that the appellate body is required to 'make such order as it thinks fit', this is an indication that the appellate body's powers are not constrained by the need to identify error on the part of the decision-maker, but, rather, it is obliged to give its own decision on the evidence before it.

    [33] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331; (2018) 12 ARLR 135 (Ord Irrigation) at [121].

17. Thus, our function on review is to consider each of the applicant's complaints about Mr Rafferty afresh and to make the correct and preferable decision at the time of the decision upon the review, on the evidence before us, whether or not that material was before the first respondent or existed at the time of the first respondent's decision regarding each complaint.

18. To be clear, when referring to the applicant's complaints, we are referring to the complaints as considered and determined by the first respondent. The Tribunal's function does not, and cannot, extend beyond the review of the complaints considered and determined by the first respondent. [34]

    [34] Quinlivan and Legal Profession Complaints Committee [2012] WASAT 98 at [25], [27] - [28]; SJX and Legal Profession Complaints Committee [2012] WASAT 154 at [17].

19. The materials put before us by the applicant include allegations and concerns that go well beyond the complaints determined by the first respondent, both in respect of Mr Rafferty[35] but also in relation to other practitioners.  But those complaints are not the subject of the application for review.

    [35] It would appear that the applicant complains that Mr Rafferty failed to provide him with a copy of Exhibit 4.3 from his District Court trial, which was described as a 'Plan of the ground floor of the Calendonia Avenue property' and, in error, provided him, under cover of Mr Rafferty's letter of 14 December 2017, a hand drawn sketch of Maylands Hall instead.  The relevance of any of this to any of the grounds of complaint made by the applicant is not apparent to the us and we have proceeded on the basis that it stands alone as a separate issue not pursued by the applicant with the first respondent and is therefore beyond the scope of our review.

20. That is why the procedural history of the matter has been set out in some detail above.  Following the Tribunal's orders on 13 February 2020, the first respondent engaged with the applicant in order to clarify the precise nature of the complaints pursued by the applicant against Mr Rafferty.  The result of that process was the 11 grounds that were then considered and determined by the first respondent.  Our jurisdiction is limited to the review of the first respondent's decision in respect of each of those complaints and we have no jurisdiction to consider an application in respect of anything else.

21. As this matter comes within the review jurisdiction of the Tribunal, no party bears any legal or practical onus of proof.[36]  In particular, the applicant does not bear any onus to show that a departure from the Committee's decisions is justified.[37]  Rather, we must conduct a de novo consideration of each complaint and determine the correct and preferable decision at the time of the decision upon the review.

    [36] Ord Irrigation at [124].

    [37] Ord Irrigation at [128].

22. Section 29(3) of the SAT Act states as follows in relation to the Tribunal's powers in the exercise of its review jurisdiction:

    The Tribunal may —

    (a)affirm the decision that is being reviewed; or

    (b)vary the decision that is being reviewed; or

    (c)set aside the decision that is being reviewed and —

    (i)substitute its own decision; or

    (ii)send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,

    and, in any case, may make any order the Tribunal considers appropriate.

23. As indicated earlier, in its decision to dismiss complaints 3, 4, 5 and 9, the Committee specifically found these complaints to be 'lacking in substance' pursuant to s 415(1)(b) of the LP Act.

24. In s 415(1)(b) those words appear with the words 'trivial', 'vexatious' and 'frivolous', which all appear, together with the word 'unreasonable' but absent the words 'lacking in substance' in s 435(2)(a) as a basis for the need to obtain leave as a precondition to applying for a review of the first respondent's decision.

25. However, while there is clearly an overlap between the terms used in those sub-sections, the overlap is not complete. The words used by the first applicant ('lacking in substance') to dismiss complaints 3, 4, 5 and 9 do not appear in s 435(2)(a) and there is therefore no requirement for the applicant to obtain leave in respect of those four complaints.

Issues for determination

1. There is therefore only one issue that arises for determination in relation to each of the 11 grounds of complaint: is there is any reasonable likelihood that the Tribunal might find Mr Rafferty guilty of either unsatisfactory professional conduct or professional misconduct if the complaint were referred by the first respondent to the Tribunal under s 428(1) of the LP Act.

2. We will address each of the applicant's complaints in turn below.

Ground 1

1. Ground 1 complains that Mr Rafferty failed to provide the applicant with a costs agreement and/or enter into a costs agreement with him.

2. In its letter of 26 October 2020, the first respondent said as follows:

   Whilst a client has a right to negotiate a costs agreement with a law practice, a practitioner is not obliged to enter into a costs agreement.  However, in the absence of a costs agreement a practitioner must charge according to an applicable costs determination.  If there is neither a costs agreement nor a costs determination, the practitioner must charge according to the fair and reasonable value of the legal services provided.[38]

   [38] Bundle, pages 4­5.

3. We agree with the first respondent's dismissal of this complaint.  With respect, it is plainly correct.

4. Section 282 of the LP Act allows for a costs agreement to be made between a client and a law practice retained by that client. The permissive nature, rather than obligatory nature, of the provision is made clear by the term 'may'. Nothing in that section, or any other section, mandates or otherwise requires that a costs agreement be entered into.

5. As an alternative to a costs agreement, a legal practitioner is entitled to charge according to the relevant 'scale' which is set out in the relevant costs determination. 

6. In this case, that is the Legal Profession (Supreme Court and District Court) (Criminal) Determination 2016 (2016 Costs Determination).  It is clear from the 2016 Costs Determination and the accompanying report that the Legal Costs Committee has proceeded on the basis that the scale rate applies in the absence of a written costs agreement.[39]

   [39] See, for example, cl 4(d) of the report and cl 9(a) of the 2016 Costs Determination itself.

7. The 2016 Costs Determination, as an instrument determined pursuant to the LP Act, cannot assist in the proper construction of the LP Act itself and we do not rely on it in that regard. Rather, it provides an illustration of the widespread acceptance of the proposition put forward above ­ that there is no obligation to enter into a costs agreement.

8. Accordingly, we are satisfied that there is no reasonable likelihood that Mr Rafferty would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct under this complaint.

9. Further, while it is not necessary to do so, we agree with the first respondent to the effect that the total sum of $5000 charged to the applicant by Mr Rafferty was fair and reasonable when measured against the maximum hourly rate established by the 2016 Costs Determination and the hours spent carrying out the work.

Ground 2

1. Ground 2 complains that Mr Rafferty failed to provide the applicant with costs disclosure contrary to sections 260 and 262 of the LP Act.

2. In its letter of 26 October 2020, the first respondent addressed complaints 1 and 2 together.  In particular, at paragraph 15 the first respondent:

   noted that the failure to give costs disclosure does not of itself render a practitioner's invoice invalid but on an assessment by the Supreme Court of the legal costs, the costs may be reduced by an amount considered by the Court to be proportionate to the seriousness of the failure to disclose.[40]

   [40] Bundle, page 5.

3. The first respondent went on to expressly find that: (1) the costs charged were 'not outside the range of what would be fair and reasonable';[41] and (2) while there was some dispute between the applicant and Mr Rafferty as to the contents of their discussion in September, the events following that discussion 'supported the practitioner's version that there was an agreed fixed fee of $5,000'.[42]

   [41] Bundle, page 5.

   [42] Bundle, page 5.

4. It was in these circumstances that, although Mr Rafferty did not comply with his obligations to provide a costs disclosure in writing, the first respondent considered that there was no reasonable likelihood of Mr Rafferty being found guilty of unsatisfactory professional conduct or professional misconduct by the Tribunal.

5. There ought to be no doubt that a failure to provide costs disclosure pursuant to s 260 and s 262 can, in the appropriate circumstances, constitute either unsatisfactory professional conduct or professional misconduct.

6. Although we are not aware of any decisions in this State to that effect, there are such decisions in each of Queensland, New South Wales and Victoria.[43] 

   [43] Legal Services Commissioner v Bentley (No 5) [2021] QCAT 226 at [30] ­ [42]; Victorian Legal Services Commissioner v Szwider (Legal Practice) [2019] VCAT 505 at [41] ­ [48]; Council of the Law Society of NSW v Berger (No. 2) [2018] NSWCATOD 4 at [17] and [27].

7. However, as was noted by the VCAT in Szwider, whether a failure to provide disclosure amounts to professional misconduct or unsatisfactory professional conduct 'will depend upon the particular circumstances and the seriousness of such conduct'.[44]

   [44] Szwider, at [48].

1. The relevant facts and circumstances in the present case are that the work to be done was the provision of an advice as to prospects of success which was, by its nature, self­contained. Such circumstances are very different from a failure to provide costs disclosure in the context of ongoing litigation. Such circumstances also render many of the provisions of s 260(1) redundant. While s 262 requires disclosure to occur in writing, it is s 260(1) which prescribes the various matters which must be contained within a costs disclosure made by a practitioner to a client.

2. Section 260(1) provides as follows:

   (1)A law practice must disclose to a client in accordance with this Division —

   (a)the basis on which legal costs will be calculated, including whether a costs determination applies to any of the legal costs; and

   (b)the client's right to —

   (i)negotiate a costs agreement with the law practice; and

   (ii)receive a bill from the law practice; and

   (iii)request an itemised bill after receipt of a lump sum bill; and

   (iv)be notified under section 267 of any substantial change to the matters disclosed under this section;

   and

   (c)an estimate of the total legal costs if reasonably practicable or, if that is not reasonably practicable —

   (i)a range of estimates of the total legal costs; and

   (ii)an explanation of the major variables that will affect the calculation of those costs;

   and

   (d)details of the intervals (if any) at which the client will be billed; and

   (e)the rate of interest (if any) that the law practice charges on overdue legal costs, whether that rate is a specific rate of interest or is a benchmark rate of interest (as referred to in subsection (2)); and

   (f)if the matter is a litigious matter, an estimate of —

   (i)the range of costs that may be recovered if the client is successful in the litigation; and

   (ii)the range of costs the client may be ordered to pay if the client is unsuccessful;

   and

   (g)the client's right to progress reports in accordance with section 269; and

   (h)details of the person whom the client may contact to discuss the legal costs; and

   (i)the following avenues that are open to the client in the event of a dispute in relation to legal costs —

   (i)costs assessment under Division 8;

   (ii)the setting aside of a costs agreement under section 288;

   (iii)making a complaint under Part 13;

   and

   (j)any time limits that apply to the taking of any action referred to in paragraph (i); and

   (k)that the law of this jurisdiction applies to legal costs in relation to the matter; and

   (l)information about the client's right —

   (i)to accept under a corresponding law a written offer to enter into an agreement with the law practice that the corresponding provisions of the corresponding law apply to the matter; and

   (ii)to notify under a corresponding law (and within the time allowed by the corresponding law) the law practice in writing that the client requires the corresponding provisions of the corresponding law to apply to the matter.

3. Addressing each in turn:

   (a)We agree with the first respondent that the agreement reached between the applicant and Mr Rafferty was for the provision of advice on an agreed fixed fee of $5,000. That is open on the materials and is consistent with Mr Rafferty’s letter of 29 January 2018. There is nothing to suggest otherwise. On that basis, there was disclosure as to 'the basis on which legal costs will be calculated' consistent with s 260(1)(a) albeit that that disclosure was not in writing contrary to s 262(1).

   (b)We find that matters set out in s 260(1)(b) may not have been disclosed at all by Mr Rafferty to the applicant and, in any event, were not disclosed in writing contrary to s 262(1).

   The failure to disclose the right to receive a bill and to request an itemised bill had no material consequences in circumstances where a bill was provided and where the applicant sought, and Mr Rafferty provided, an itemised description of the work done.

   Equally, there were no substantial changes to the matters that ought to have been disclosed and so no material consequences flow from the failure to disclose the matters listed in s 260(1)(b)(iv).

   The failure to disclose the right to negotiate a costs agreement also raises no material concern because that is, in effect, what happened ­ the applicant and Mr Rafferty negotiated an agreement as to the manner in which Mr Rafferty would charge for his work.  Further, as held in relation to ground 1, that agreement was fair and reasonable.

   In our view, the failure to disclose these matters, while it amounts to a breach, did not disadvantage the applicant.  It ought not to have occurred but in the circumstances it does not satisfy the requirements of unsatisfactory professional standards.

   (c) and (d)For the same reasons as apply to s 260(1)(a), the nature of the agreement reached between the applicant and the first respondent rendered it redundant for Mr Rafferty to provide the applicant with disclosure of the matters prescribed in s 260(1)(c) and (d). The nature of the agreement meant that there was no need to provide an estimate or a range of estimates for the total legal costs and nor was there a need to provide details as to the intervals, if any, at which the client was to be billed. The agreement reached was for there to be only one bill provided, which was to be for the agreed sum of $5,000.

   (e)Equally, given that the agreement between Mr Rafferty and the applicant was for an agreed sum of $5,000 which was to be received in trust before the work was to commence, there was no reasonable requirement to provide disclosure as to the rate of interest, if any, that Mr Rafferty could charge on overdue legal costs.  That is because there was no prospect of there being any overdue legal costs because Mr Rafferty had access to the agreed sum via his trust account.

   (f)Section 260(1)(f) does not arise because the matter was not a litigious one.

   (g)Equally, the nature of the advice to be provided and the terms on which it was to be provided meant that the obligation under s 260(1)(g) to a right to progress reports was redundant.

   (h)The absence of a disclosure under s 260 meant that the applicant was not provided with 'details of the person whom [he] may contact to discuss the legal costs' contrary to s 260(1)(h). However, given that Mr Rafferty practises as a sole practitioner, the benefit of such disclosure would appear to be minimal, if any at all.

   (i) and (j)These paragraphs require disclosure of certain matters that are open to the client in the event of a dispute in relation to legal costs and associated timeframes. No disclosure of these matters was provided prior to the commencement of work, or at all, until after the provision of written advice. They were however provided as part of the practitioner's invoice. Again, in the context of an agreed fee, the entirety of which had been provided prior to the commencement of work, the failure to provide disclosure prior to the commencement of work, whilst a breach of s 260(1) and s 262(1), is of little practical consequence because if there was a dispute as to costs, it would not arise until after the provision of the invoice which provided the applicant with full disclosure as to his rights.

   (k)There appears to be little benefit to the disclosure to the applicant that the law of Western Australia applies to legal costs in relation to the matter.  So much must have been self­evident to both parties.

4. The obligation to give disclosure as to costs is protective of the public.  It is an obligation which must be taken seriously and ought not be considered mere 'window dressing'.[45]

   [45] G E Dal Pont, Lawyer Discipline, LexisNexis Butterworths 2020, page 302­303 at [12.8].

5. Nonetheless, in the circumstances and for the reasons set out above, there is no reasonable likelihood that Mr Rafferty would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct for his failure to provide costs disclosure.

Ground 3

1. Ground 3 constitutes a complaint that Mr Rafferty failed to comply with s 291 of the LP Act regarding notification of a client's rights on a bill.

2. Section 291(1) of the LP Act provides that:

   A bill must include or be accompanied by a written statement setting out —

   (a) the following avenues that are open to the client in the event of a dispute in relation to legal costs —

   (i) costs assessment under Division 8;

   (ii) the setting aside of a costs agreement under section 288;

   (iii) making a complaint under Part 13;

   and

   (b) any time limits that apply to the taking of any action referred to in paragraph (a).

3. It is to be noted that the matters set out at s 291(1)(a) and (b) are in the same terms as the obligation of disclosure provided for at s 260(1)(i) and (j) of the LP Act.

4. As we noted in relation to those paragraphs above, Mr Rafferty's invoice of 9 January 2018[46] contained a statement that set out the relevant matters.

   [46] Bundle, page 24.

5. In its letter of 26 October 2020, the first respondent noted that:

   The complainant did not provide any further evidence or explanation to support this aspect of the complaint and the Committee considered that the terms of the Invoice issued by the practitioner which clearly contained the required wording at the bottom of the page was sufficient evidence to refute the complainant's claim.[47]

   [47] Bundle, page 6.

6. We agree the complaint lacks substance.  There is no reasonable likelihood that a finding would be made of either unsatisfactory professional conduct or professional misconduct against Mr Rafferty in relation to this ground.

Ground 4

1. In this ground the applicant complains that Mr Rafferty failed to provide him with an itemised account.

2. The ground is without merit.  Following the issue of the invoice dated 9 January 2018 by Mr Rafferty, and the exchange of correspondence referred to at [36] ­ [38] above, the applicant wrote to Mr Rafferty on 16 April 2018 asking that he send the applicant 'an itemised amount of work done'.[48]

   [48] Bundle, page 33.

3. By way of response, Mr Rafferty wrote to the applicant dated 24 April 2018 and provided the following breakdown of his costs:[49]

   •Consideration of various notes prepared by you and referred to in your letter dated 24 September 2017 ­ one hour;

   •Consideration of draft submissions ­ one hour;

   •Consideration of trial transcript (approximately 650 pages) ­ ten hours;

   •Preparation of written advice and legal research ­ three hours.

   The total amount of time spent on your matter was approximately fifteen hours, which does not include the telephone attendance with you and your brother prior to the preparation of the advice.

   My hourly rate is $400.00.  On my calculations, I was entitled to bill you $6,000.00 which is more than the amount actually billed.

   [49] Bundle, page 34.

4. In these circumstances, we agree with the first respondent that this complaint lacks substance.  There is no reasonable likelihood that the Tribunal would make a finding of either unsatisfactory professional conduct or professional misconduct against Mr Rafferty in relation to this ground.

Ground 5

1. Ground 5 complains that Mr Rafferty failed to comply with s 269(1)(b) of the LP Act in that he failed to provide to the applicant a written report of the legal costs incurred by the applicant in the relevant matter.

2. Section 269(1) provides as follows:

   (1) A law practice must give a client, on reasonable request —

   (a) a written report of the progress of the matter in which the law practice is retained by the client; and

   (b) a written report of the legal costs incurred by the client to date, or since the last bill (if any), in the matter.

3. In our view, the critical words in this case are 'on reasonable request'.  As has been made clear in the preceding discussion, Mr Rafferty only rendered one invoice in the matter, which was rendered at the completion of the provision of the advice for which he had been retained.

4. Accordingly, there were no further costs incurred after the invoice was issued and the only matter of substance which a written report provided under s 269(1)(b) might have contained was therefore a statement simply confirming that which, in the circumstances, would have been a statement of the obvious.

5. Accordingly, we agree with the first respondent that the applicant's request of 23 November 2018[50] was not a 'reasonable request' and accordingly, there is no basis for the complaint.

   [50] Bundle, page 44.

6. In such circumstances we are satisfied that there is no reasonable likelihood that a finding would be made against Mr Rafferty for either unsatisfactory professional conduct or professional misconduct in relation to this ground.

Ground 6

1. Ground 6 complains that Mr Rafferty engaged in unsatisfactory professional conduct or professional misconduct by:

   Failing to obtain, for the purposes of giving competent advice, the following documentation and/or failing to follow [the applicant's] lawful and proper instructions to obtain the following documentation:

   6.1a full copy of the [entire] trial transcript;

   6.2the full brief of evidence relating to the charges against [the applicant]; and

   6.3the disclosure certificate issued under s 45(5) of the Criminal Procedure Act 2004.

2. In support of the complaint, the applicant relies on letters he sent to Mr Rafferty dated 30 December 2017,[51] 3 January 2018[52] and 16 January 2018.[53]

   [51] Bundle, page 15.

   [52] Bundle, page 22.

   [53] Bundle, pages 25­26.

3. The letter of 30 December 2017 is described above at [28]. It asks Mr Rafferty to acquire 'a copy of the trial transcript' and to 'send an email copy' to Ms M at a given email address.

4. That letter was sent (and received) in the context of the previous letter sent by the applicant to Mr Rafferty dated 24 September 2017, which confirmed that the applicant had previously sent to Mrؘ Rafferty numerous documents, including 'transcripts with my notes + formulations'.

5. That context is apparent in the balance of the applicant's letter of 30 December 2017, which states as follows:

   as you know the hard copy I gave you is deficient in things like Voirdire, closing statements and anything else that may be important to my appeal.[54]

   [54] Bundle, page 15.

6. The letter on its face does not ask Mr Rafferty to have regard to the copy of the trial transcript as obtained.  Rather, it appears to be no more than a request to provide a copy of the trial transcript to Ms M.

7. Mr Rafferty, in his letter dated 23 August 2020,[55] by which he responded to the allegations put to him by the first respondent, stated that as the applicant had 'provided [him] with the trial transcript.  There was nothing more that [he/Mr Rafferty] required … [in order that he might] provide [the applicant] with an opinion'.

   [55] Bundle, pages 126­127.

8. In that context, it is entirely reasonable to read the letter of 30 December 2017 as no more than a request that Mr Rafferty provide a more fulsome copy of the transcript to Ms M.

9. Two further things ought to be said in this regard.  First, it remains unclear whether Mr Rafferty received that letter of 30 December 2017 prior to the completion of the advice on 2 January 2018.

10. The date on the letter, 30 December 2017, was a Saturday.  Accordingly, it seems most unlikely that a hard copy letter would have been received by Mr Rafferty on the first working day thereafter, being Tuesday 2 January 2018, which was the date on which Mr Rafferty completed the advice.

11. Secondly, it seems reasonable to conclude that the terms on which the applicant engaged Mr Rafferty were limited to the provision of advice based on the material provided to him.

12. That is certainly the approach which Mr Rafferty says was taken by him.  As noted above, in his letter of 29 January 2018 to the applicant,[56] he said that he had proceeded on the basis that he would 'consider the trial transcript and prepare an opinion'.  He stated explicitly that he had 'never agreed to "chase up essential evidence" and was working on the basis that [he] would provide an advice to [the applicant] based on the materials provided'.[57]

    [56] Bundle, pages 27­28.

    [57] Bundle, page 27.

13. While the applicant appears to dispute that that was the case, his letter of 24 September 2017 is consistent with the approach Mr Rafferty says he took.  As the first respondent noted in its letter of 26 October 2020:

    there was no suggestion of any further investigation phase by [Mr Rafferty] prior to issuing the Opinion and no mention was made of any preliminary steps (relating to further or other material) to be taken by  the practitioner as claimed by the complainant.  The letter [of 24 September 2017] did not contain any instructions contrary to what had been discussed in the initial communication or any request for the practitioner to chase up further evidence.[58]

    [58] Bundle, page 7.

14. We also agree with the first respondent that the reference in the applicant's letter to 'my final draft of my grounds of appeal submissions x23p'[59] is inconsistent with the applicant's claims that further investigative work was required or that the applicant and Mr Rafferty 'were still in the preparatory stages of the appeal'.[60]

    [59] Bundle, page 13.

    [60] Bundle, page 25.

15. The above discussion also goes to the applicant's letter of 16 January 2018,[61] which is referred to above and which appears to form the basis of ground 6.2 by which the applicant complains that Mr Rafferty failed to obtain a full brief of evidence.

    [61] Bundle, pages 25­26.

16. The applicant's letter of 16 January 2018 also alleges that it was incumbent on Mr Rafferty to obtain 'medical records showing [the applicant's alleged] incapacity to commit offences that were alleged'.  We agree with the first respondent's letter of 26 October 2020 which notes that the suggestion that agreement was reached, whereby Mr Rafferty was to obtain further medical records, is 'inconsistent with [the applicant's] 24 September 2017 letter advising that he already held the medical records in his possession showing the extent of his injuries sustained just prior to the alleged offences'.[62]

    [62] Bundle, page 8.

17. Ground 6.3 of the complaint alleges that there was a failure to obtain a copy of 'the disclosure certificate issued under s 45(5) of the Criminal Procedure Act 2004' (WA).[63]

    [63] Bundle, page 8.

18. The applicant first wrote to Mr Rafferty requesting he obtain a copy of that certificate by letter dated 3 January 2018, being the day after Mr Rafferty completed his opinion. 

19. The relevance of that certificate to the prospects of success of any appeal is not apparent to us. Section 45(5) of the Criminal Procedure Act 2004 (WA) does no more than provide for the certification by the prosecution that it has complied with its disclosure obligations.

20. Mr Rafferty, in his letter of 23 August 2020, as well as noting that he did not receive the request until after completion of his advice, stated that the disclosure certificate 'was not relevant to the consideration of the merits of an appeal'[64] and we agree.  Ground 1 of the applicant's proposed grounds was considered by Mr Rafferty in his Advice under the heading of 'non-disclosure'.  He describes the ground as 'difficult to follow' and says that the ground 'conflates a number of different issues' one of which he says was 'alleged impropriety of police'.  However, in dismissing the potential ground Mr Rafferty said:

    It seems that you are actually alleging a failure by police to sufficiently investigate all relevant matters as opposed to the failure to disclose evidence held by the police/ DPP. It was open to you to adduce evidence on your own behalf at trial, however you elected not to do so …[65]

    [64] Bundle, page 127.

    [65] Bundle, page 20.

1. There is nothing in the material which suggests otherwise.  And in particular there is nothing to suggest that the applicant considered that the prosecution had failed to satisfy its disclosure obligations.  As such, the existence or otherwise of a certificate in that regard is, on the material before us, neither here nor there.  In any event, for the reasons set out above, we find that the original instructions to Mr Rafferty went no further than seeking an advice on the material provided at that initial stage and that the request that Mr Rafferty obtain a copy of the disclosure certificate was not received until after he had provided his advice in circumstances where he considered he had sufficient information to reach the relevant conclusions.

2. For these reasons, we consider that there is no reasonable likelihood that a finding of unsatisfactory professional conduct or professional misconduct would be made against Mr Rafferty in respect of this complaint.

Ground 7

1. Ground 7 complains that Mr Rafferty ignored the grounds of appeal prepared by the applicant and, contrary to the applicant's instructions, failed to consider those grounds and provide a response to the applicant in writing.

2. This ground lacks merit.

3. By his letter of 24 September 2017, the applicant wrote that he had sent to Mr Rafferty, by registered post, various documents including 'a copy of [his] first appeal draft' and his 'final draft of [his] grounds of appeal submissions by x23p'.[66]

   [66] Bundle, page 13.

4. In his advice of 2 January 2018, Mr Rafferty notes that he has had regard to various materials including 'Copy of draft Appellant's Case'.[67]

   [67] Bundle, page 16.

5. Starting on page 4 of the written advice, Mr Rafferty deals with six particular issues as follows:

   1.Judge's directions to the jury;

   2.Proposed ground 1 ­ non­disclosure;

   3.Proposed ground 2 ­ errors of law made by the trial Judge;

   4.Proposed ground 3 ­ failure to exclude evidence;

   5.Proposed ground 4 ­ unsafe and unsatisfactory verdicts; and

   6.Medical issues.

6. On its face, therefore, the written advice appears to identify and then address each of four matters which Mr Rafferty says were raised by the applicant in his instructions to him.

7. That is consistent with what Mr Rafferty said in his letter to the first respondent of 23 August 2020 in which he says, in relation to this ground, that the written advice 'deals with each of the [applicant's] four proposed grounds of appeal and why they were devoid of merit'.[68]

   [68] Bundle, page 127.

8. There is nothing before us which provides any support for a possible complaint that the applicant's instructions to Mr Rafferty included proposed grounds of appeal in addition to those which were addressed by Mr Rafferty in his written advice.

9. It is worth noting that this ground appears to have first arisen in February 2020, two years after Mr Rafferty's advice was provided.[69]  A very generous reading of the materials might see the complaint as derived from (and perhaps as part of) the applicant's more general complaint that Mr Rafferty failed to acquire a full brief of evidence and carry out further investigations.  But the ground is not that Mr Rafferty failed to have regard to all possible appeal grounds, only that he failed to have regard to the grounds of appeal prepared by the applicant.

   [69] Bundle, page 72.

10. As noted above, the written advice provided by Mr Rafferty addressed each of four 'proposed grounds' as well as each of Eaton DCJ's directions to the jury and the 'medical issues'.

11. Accordingly, we are of the view that there is no reasonable likelihood that a finding of unsatisfactory professional conduct or professional misconduct would be made against Mr Rafferty in respect of this complaint.

Ground 8

1. This ground is that Mr Rafferty failed to make a competent assessment of the applicant's possible appeal rights.

2. By contrast with grounds 6 and 7, this ground appears to suggest that Mr Rafferty failed to have regard to possible appeal grounds beyond those identified by the applicant.

3. But as noted above in relation to ground 7, Mr Rafferty did address matters beyond the four 'proposed grounds' identified by the applicant.

4. In his letter of 23 August 2020, Mr Rafferty denies the allegation and says that he:

   considered the entirety of the materials that were provided to [him] … [and that he] provided an advice in good faith … [which] was consistent with advice previously given to [the applicant] by [other counsel] to the extent that there were no arguable grounds of appeal against conviction.[70]

   [70] Bundle, page 127.

5. We have been provided with a copy of advice from another barrister dated May 2018.  It is very lengthy and, amongst other things, refers to advice given to the applicant by other counsel again.  Ultimately, that advice concludes that the relevant barrister was unable to assist further.[71] 

   [71] Applicant's Bundle filed 14 February 2020 (Applicant's Bundle), pages 16­33.

6. The applicant subsequently sought leave to appeal, as noted by the Court of Appeal, approximately three years and two months out of time.[72]  The decision of the Court of Appeal is lengthy, running to 270 paragraphs.  Ultimately, the appeal was successful only in relation to count 3, which concerned the applicant's conviction for assault occasioning bodily harm.

   [72] Court of Appeal Decision at [49].

7. The Court found that there was insufficient evidence that Ms S had in fact suffered bodily harm as a result of the particular assault the subject of the charge. Accordingly, the Court found that the trial Judge should have directed the jury that an offence of common assault contrary to s 313 of the Code was an alternative offence.[73]  The Court noted that defence counsel did not seek such a direction from his Honour but the Court held that the direction was 'called for given the unsatisfactory state of the evidence concerning the alleged bodily harm suffered by [Ms S]'.[74]  The Court found that the failure to provide that direction gave rise to a miscarriage of justice and the appeal was allowed in that regard only.

   [73] Court of Appeal Decision at [102].

   [74] Ibid.

8. Plainly, Mr Rafferty failed to identify that potential ground of appeal in his advice.  However, that does not, of itself, render Mr Rafferty liable to a finding that he has engaged in unsatisfactory professional conduct or professional misconduct.

9. As noted above, those terms are only satisfied where conduct falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner (in the case of unsatisfactory professional conduct) or where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence (in the case of professional misconduct).

10. That standard does not require perfection or even correctness.  In our view, the fact that there appears to have been several barristers who had considered the applicant's case over several years and that none of them had been engaged to take the applicant's case on appeal strongly suggests that the omission or failing by Mr Rafferty ought not be seen as conduct which can reasonably be said to 'fall short' of the relevant standard of competence.

11. In particular, we note that the Court of Appeal's decision in relation to count 3 turned on the extent to which photographs taken of Ms S on 14 July 2013 were sufficient to prove beyond reasonable doubt that the assault the subject of count 3 (which was alleged to have occurred on 6 July 2013) caused the injuries shown, in circumstances where those photos were also relied upon to demonstrate injuries said to have occurred as a result of the assault which was the subject of count 4 (which was alleged to have occurred on 10 July 2013).  At [243] the Court held that there was no evidence from either Ms S or from any other source which was capable of establishing that the injuries shown in the photographs were attributable to the assault upon Ms S which occurred on 6 July 2013 rather than 10 July 2013.

12. It is to be noted that the Court's decision turned in part on a close examination of the photographic evidence.[75]

    [75] Court of Appeal Decision at [238] ­ [239].

13. It would appear that Mr Rafferty did not have copies of the relevant exhibits.  It is also clear, as discussed above, that Mr Rafferty did not consider himself instructed to obtain any material not provided to him by the applicant.

14. In all of those circumstances we are of the view that the fact that Mr Rafferty did not identify the issue which ultimately found favour with the Court of Appeal ought not to be considered conduct which falls short of the relevant standard.  On that basis, we are of the view that there is no reasonable likelihood that the Tribunal would make a finding of either unsatisfactory professional conduct or professional misconduct against Mr Rafferty in relation to this ground.

Ground 9

1. This ground contends that Mr Rafferty failed to verify legal documentation provided to him by the applicant, as requested, by phone and mail.

2. There is no obligation on practitioners to verify or otherwise confirm receipt of materials received.

3. Plainly, there will be circumstances in which it is advisable to do so.  In the current case, the materials sent by the applicant to Mr Rafferty in September 2017 were sent by registered post.[76]

   [76] See letter of 24 September 2017 at Bundle, page 13.

4. In our view, there ought to be no need to verify receipt of materials provided by registered post.  The process of registered post itself allows a tracking of items to ensure that they arrive at their intended destination.

5. In any event, the applicant's own Log Books record a telephone conversation on 3 October 2017 in which Mr Rafferty confirmed receipt both of the $5,000 'deposit' as well as the 'legal material' provided by the applicant.[77]

   [77] Applicant's Log Book No. 5, page 52.

6. Equally, as has already been identified above, Mr Rafferty confirmed receipt of the PathWest letter previously provided by the applicant in his letter of 14 December 2017 (and again by the same letter dated 21 December 2017).[78]

   [78] Bundle, pages 167­168.

7. It is unclear as to what, if any, other documents the applicant says were provided to Mr Rafferty and which were not 'verified'.  There is nothing in the materials before us which indicate anything else which might be said to fall within that category.

8. Accordingly, we find that the ground lacks substance and that there is no reasonable likelihood that the Tribunal would make a finding against Mr Rafferty of either unsatisfactory professional conduct or professional misconduct in relation to this complaint.

Ground 10

1. The terms of ground 10, as agreed by the applicant and the first respondent, are as follows:-

   [That Mr Rafferty failed to] return all documentation received from [the applicant] and/or failing to send documentation provided to him by registered mail (as [the applicant] had done) as opposed to standard mail including photographs and [the applicant's] original written notes, forensic/DNA results and your notations, a chronological time­line of events which was made when events were fresh in [the applicant's] mind, [the applicant's] original Appeal Notice and Grounds of Appeal and critical notes made by [the applicant] during the trial.

2. As noted above, Mr Rafferty's advice of 2 January 2018 ended with Mr Rafferty requesting that the applicant 'arrange for the collection of the materials that [he had] forwarded to [Mr Rafferty] at [his] earliest convenience'.[79]

   [79] Bundle, page 22.

3. The relevant subsequent evidence, which takes the form of three documents, is far from clear as to when or how that happened.

4. The first document is a pro-forma 'Receipt' document produced by the Department of Justice by which the applicant, as an inmate of Acacia Prison, acknowledges receipt of items described as follows:

   Documents ­ Box Of Legal Documents/
   Personal Paperwork (Above Bin 227)/1 Blue
   File, 1 Black Lever Arch File, 3 Mailna (sic ­ Manilla) Files in
   

   [80] Bundle, page 35.

   One Box Multi ­ Coloured Paper.[80] 

5. There are three things to note about this document.  The first is that it is dated 30 August 2018, nearly nine months after Mr Rafferty provided his advice and asked the applicant to arrange collection of the materials. 

6. If indeed those documents were not received by the applicant until that date, and if they came from Mr Rafferty (as to which see below), it is unclear why they were not collected earlier consistent with Mr Rafferty's invitation to the applicant to arrange for them to be collected in early January 2018.  Equally, it is unclear as to whether the documents simply sat at Mr Rafferty's offices or whether something else occurred to them in the meantime.

7. The second thing to note is that the pro-forma nature of the Receipt document ends half-way down the page and is indicated by the words 'End of Report' below which there is handwriting (which appears to be that of the applicant) which states as follows:

   Note: there are a number of documents missing
   including but not limited to:

   1.original Appeal notice of 2015/2016

   2.my handwritten notes from Court

   3.forensics_DNA

   4.Photos of accuser

   5.indictment and Statements

   6.And have only received the transcripts in partial (sic) of which have a lot of missing pages.

8. The handwritten comments are not separately dated and it is therefore unknown as to when they were written. 

9. The third thing to note is that there are clearly and obviously discrepancies between the documents described in the handwritten comments to the Receipt document as 'missing' and the documents described in the applicant's letter of 24 September 2017.  So, for example, there is no reference to 'forensics DNA' in the applicant's letter of 24 September 2017 and yet the handwritten notes to the Receipt suggest that such documents are 'missing'.  Similarly, while the letter of 24 September 2017 refers to 'photos of assault on me', there is no reference in that letter to the 'Photos of accuser' which appear in the handwritten notes to the Receipt.  Less obviously, the handwritten notes to the Receipt claim that the 'original Appeal Notice of 2015/2016' is 'missing' but a document so described was not included in the applicant's letter of 24 September 2017; the handwritten notes to the Receipt may be a reference to the 'first appeal draft' which was provided in September 2017, but it may be a reference to something else entirely. 

10. The second document relevant to this issue is a letter from the applicant to Mr Rafferty dated 6 September 2018 which complains that the documents he has received (presumably, but not certainly, being those acknowledged by the Receipt) 'are deficient in that there are a number of documents missing'.[81]  He then lists four documents or groups of documents ('photos of the complainant / forensics DNA ­ results / chronological time line of events / my original appeal notice to the Supreme Court in 2015/2016/etc, etc.').  It is to be noted that the list of 'missing' documents is different again from those described in the applicant's handwritten notes on the Receipt, although there is some considerable overlap.

    [81] Bundle, page 36.

11. The third document in this regard is a statutory declaration declared by Mr Joe Abreu, who we understand to be the applicant's brother.  That document declares that he went to Mr Rafferty's office:

    to pick up Documentation that [the applicant] posted to [Mr Rafferty]. … it is [the applicant's] understanding that [Mr Rafferty] is with Holding some extra Documents that belongs (sic) to [the applicant] which [Mr Rafferty] Denies receiving from [the applicant] by post.  [Mr G] ConFirms returning any Documentation that was given to Him back to me which I have since posted back to [the applicant].[82]

    [82] Bundle, page 38.

12. There are several things to be said about this document and itscontents.

13. The first goes to chronology.

14. The text of the declaration does not describe the date on which Mr Joe Abreu is said to have attended Mr Rafferty's office to collect the relevant documents.

15. Further, the date on which the statutory declaration was made is unclear.  The date 18 September 2018 appears in handwriting on the document.  So too does a date stamp of 20 December 2018, which was apparently imprinted by the Hilton Post Office, which is where the declaration was witnessed.

16. However, it makes sense to proceed on the basis that the declaration was made on or about 18 September 2018, and that the declaration occurred about the time of the visit, so that the visit occurred more thantwo weeks after the date of the Receipt and 12 days after the applicant's letter.

17. On that basis, it appears that the declaration does no more than record that, following the Receipt, the applicant asked his brother to attend Mr Rafferty's office to recover what the applicant says were his missing documents which he had already written to Mr Rafferty about.

18. On that basis, the chronology of 1) Receipt; 2) complaint letter; and 3) visit by brother, tends to support the view that the documents had remained with Mr Rafferty since January 2018.  However, the difficulty with that view is that Mr G provided his advice in May 2018.[83] 

    [83] Applicant's Bundle, pages 16­33.

19. If, as the applicant's ground appears to suggest, there was only ever one copy of the documents which he complains went 'missing', Mr G could not have provided his advice unless he was provided with the documents and that cannot have occurred until the applicant provided them to him, which, in turn, cannot have occurred unless and until he received those documents back from Mr Rafferty.

20. On that basis, it appears to be the case that the Receipt of 30 August 2018 records the receipt of documents by the applicant from someone other than Mr Rafferty.

21. That there is some confusion as to who was provided with what documents and when that occurred is supported by the terms of another statutory declaration made by the applicant's brother in very similar terms and apparently on a similar date[84] to that referred to above but which refers to another legal practitioner:  Mr H.[85]  That statutory declaration states that it is the understanding of the applicant's brother that:

    [Mr H] is withHolding some paperwork that belongs to [the applicant] which [Mr H] Denys  receiving from [the applicant] by post.  [Mr G] ConFirms returning any Documentation that was given to Him back to me which I have since posted back to [the applicant].[86]

    [84] The declaration is both dated 18 September 2018 and witnessed by another postal worker at the Hilton post office who date stamped the document 18 September 2018.

    [85] Bundle, page 37.

    [86] Bundle, page 37.

22. The first respondent, in its letter of 26 October 2020, noted the two statutory declarations of the applicant's brother and said that:

    there appeared to be some confusion as to the materials [the applicant] provided to his various legal representatives who he sought to engage in relation to an appeal. … this suggested that there may be a genuine uncertainty on [the applicant's] part as to what material has been provided and to whom.[87]

    [87] Bundle, page 11.

23. We agree.  On the basis of the above, there can be no certainty at all as to what occurred to the documents following the written advice provided by Mr Rafferty in January 2018 but the most likely outcome appears to be that the documents provided to Mr Rafferty were collected in their entirety and subsequently provided to other legal practitioners. 

24. That is, we find it unlikely that Mr Rafferty continued to hold the applicant's documents until they were returned in August 2018.  But even if that was the case, we find it most unlikely that Mr Rafferty deliberately retained some of the applicant's documents.  There is no sensible reason for him to have done so and the suggestion is contrary to his request of 2 January 2018 that the applicant arrange collection of the documents.

1. To the extent that it might be suggested (contrary to all of the above) that some documents were inadvertently retained by Mr Rafferty in August 2018, we find that even if that had occurred, it would not amount to unsatisfactory professional conduct in circumstances where the documents had not been collected for more than eight  months after Mr Rafferty requested that to occur.

2. For these reasons, we find that there is no reasonable likelihood that a finding of unsatisfactory professional conduct or professional misconduct would be made against Mr Rafferty in relation to this ground.

Ground 11

1. By this ground, the applicant complains that Mr Rafferty failed to respond to communications from the applicant.

2. As discussed above, Mr Rafferty's written advice was provided under letter dated 2 January 2018. 

3. There was a subsequent exchange of correspondence between the applicant by letter dated 16 January 2018[88] to which Mr Rafferty replied by letter dated 29 January 2018.[89]  Further correspondence was written by the applicant on 4 February 2018,[90] which does not appear to have been responded to.  However, on 16 April 2018 the applicant wrote asking for an itemised account, which Mr Rafferty provided by letter dated 24 April 2018.[91]  The next piece of correspondence from the applicant appears to be dated 6 September 2018.

   [88] Bundle, pages 25­26.

   [89] Bundle, pages 27­28.

   [90] Bundle, pages 29­32.

   [91] Bundle, pages 33­34.

4. It would also appear that in or about mid­January 2018, Mr Rafferty instructed Acacia Prison to remove his telephone number from the applicant's 'phone approved list'.[92]

   [92] Bundle, pages 25­26 (letter 16 January 2018, page 2 of 2).

5. In its letter of 26 October 2020, the first respondent states that Mr Rafferty explained that he had removed his phone number from the applicant's approved list after receiving several telephone calls from the applicant 'slagging him off'.[93]  We appear to lack documentation to support that finding but in any event, by mid­January 2018 the retainer had ended and, as noted above, Mr Rafferty responded to the applicant's letter of 16 January 2018 with his own letter of 29 January 2018.

   [93] Bundle, page 12.

6. As also noted above, Mr Rafferty appears to have properly and appropriately responded to correspondence received prior to 2 January 2018.  The letter of 3 January 2018,[94] sent after the completion of the advice and seeking a certificate of disclosure under s 45(5) of the Criminal Procedure Act 2004 (WA), which was considered (correctly) to be irrelevant to the task at hand, does not appear to have been responded to specifically but appears to have been overtaken by events in any case by the letters of 16 and 29 January 2018.

   [94] Bundle, page 23.

7. A careful perusal of the applicant's Log Books has failed to disclose any other failure by Mr Rafferty to respond to correspondence. 

8. Accordingly, this ground appears to be without merit. Mr Rafferty responded promptly and appropriately to written correspondence during the period of the retainer and, afterwards, until April 2018.  The request to remove his phone number from the applicant's approved list was understandable in the circumstances described by the first respondent.  The failure to respond to the letter of 6 September 2018 was also understandable in circumstances where that letter complained of missing documents nearly nine months after the retainer had ended and, for the reasons set out above in relation to ground 10, it seems likely that Mr Rafferty had not had custody of those documents for some time.

9. For those reasons, we are of the view that there is no reasonable likelihood that Mr Rafferty would be found to have engaged in unsatisfactory professional conduct or professional misconduct.

Conclusion

1. As none of the grounds appear to have any reasonable likelihood of success, the only appropriate course of action is to dismiss the application and confirm the decision of the first respondent.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

RM

Associate to Deputy President Judge Jackson

18 MAY 2022