De Alwis v Legal Practitioners Complaints Committee - [2002] WASCA 33

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: DE ALWIS -v- LEGAL PRACTITIONERS COMPLAINTS COMMITTEE [2002] WASCA 33

CORAM: MURRAY J
STEYTLER J
OLSSON AUJ

HEARD: 24 OCTOBER & 7 DECEMBER 2001

DELIVERED : 26 FEBRUARY 2002

FILE NO/S: FUL 34 of 2001

BETWEEN: VIJITHA GAMINI DE ALWIS
Appellant
AND
LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
Respondent

Catchwords:

Practice and procedure - Appeal - Application to strike out for want of prosecution - Turns on own facts

Legislation:

Legal Practice Board Rules 1949, r 20(b)

Legal Practitioners Act 1893 (WA), s 3, s 25, s 28A, s 28C, s 31AA
Migration Act 1958 (Cth), s 280(1)

Rules of the Supreme Court, O 65 r 3(1)

Result:

Application granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr B J H Goetze

Solicitors:

Appellant: In person
Respondent: Minter Ellison

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

Norman v Norman (1992) 6 WAR 372

Case(s) also cited:

Boomalli Ltd v Hake & Anor [1985] WAR 7
D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Fordham v Legal Practitioners Complaints Committee (1997) 18 WAR 467
Girando v Girando (1997) 18 WAR 450
Re a practitioner LPD1 of 1996 (Baldock); FCt SCt of WA; 12 February 1997
Re a practitioner LPD2 of 1996 (Chew), unreported; FCt SCt of WA; Library No 970354; 18 July 1997
Re a practitioner LPD2 of 1997 (Bibby), unreported; FCt SCt of WA; Library No 970467; 19 September 1997
Said v The Legal Practice Board, unreported; FCt SCt of WA; Library No 950466A; 7 September 1995

JUDGMENT OF THE COURT: On 27 April 2000, the Legal Practitioners Complaints Committee acting by the law complaints officer and under the Legal Practitioners Act 1893 (WA) s 28C referred three allegations of illegal or unprofessional conduct to the Legal Practitioners Disciplinary Tribunal for hearing and determination. The three allegations were that between about 1 August 1994 and 24 January 1995, 16 September 1994 and 30 September 1994, and 2 November 1994 and 28 February 1995 respectively, the appellant, a legal practitioner within the meaning of the Legal Practitioners Act, had been guilty of illegal or unprofessional conduct in that although he was not a registered agent under the Migration Act 1958 (Cth), he gave immigration assistance to three‑named individuals contrary to s 280(1) of that Act.
Those matters were heard together by the Disciplinary Tribunal. The references were defended by the appellant. On 13 October 2000, the Tribunal found him guilty of illegal conduct in each case. In shortly expressed reasons given orally by the chairman of the Tribunal, arguments raised by the appellant in his defence were dealt with. The appellant was reprimanded and ordered to pay the costs of the references. The Tribunal appears to have been aware that in the event of a guilty finding the appellant proposed to appeal to the Full Court under s 29B of the Act. The Tribunal concluded that the offences were not of such a minor character as would enable the Tribunal not to order publication of the name of the appellant under the Act, but in view of the proposed appeal it directed that there be no publication pending the outcome of that appeal: see the Act, s 31C(5). The chairman added that if the practitioner did not proceed with the appeal with due diligence, the Tribunal would give the complainant liberty to apply with respect to the publication of the name of the practitioner.
Under the Rules of the Supreme Court, O 65 r 3(1), the appeal was to be instituted by filing and serving notice thereof within 21 days of the date of the decision appealed against. In this case, although there is some confusion about it, it seems to us to be clear that the appeal was not instituted until the requisite notice was filed in the Court on 27 February 2001 and served on the respondent on 20 March 2001. It was therefore well out of time as it should have been instituted by 6 November 2000. It appears that no application for an extension of time has been made and no extension of time has been granted. Strictly speaking, the appeal has not been instituted properly at all.
However, putting that to one side, we note that on 15 March 2001 a Registrar of the Court, not being then aware that the respondent had not been served, wrote to the appellant requiring the lodgement of a draft appeal book index and setting 27 April 2001 as the date of an appointment to settle the draft index. A draft index was filed on 11 April 2001 but it appears that the appointment was not kept by the appellant and despite correspondence from the respondent and its solicitors threatening an application to strike the appeal out for want of prosecution, nothing further seems to have been done. We note that the draft index does not appear to have been in the appropriate form.
The present application for an order dismissing the appeal for want of prosecution was ultimately made on 17 September 2001 returnable before the Court on 24 October 2001, over a year after the Disciplinary Tribunal made its final orders. In the meantime, the practitioner appears to have taken no action except for his belated attempt to institute the appeal and his filing in the Court a draft appeal book index not in proper form. He does not appear to have responded to the correspondence from the respondent and its solicitors.
When the present application came on for hearing on 24 October 2001 before this Court differently constituted, the appellant appeared, apparently not having been served with the notice of motion and supporting affidavits until the day before. The appellant sought an adjournment, saying he wished to file an affidavit in response to those filed by the respondent. The Court granted the adjournment and made programming orders allowing the appellant two weeks to file and serve any affidavit in response, the application being then adjourned to the motions day in the December sittings of the Court which was on 7 December.
When the matter was then called on, the appellant did not appear. The Court heard the application in his absence in view of the fact that it had been specifically adjourned to that date in his presence. In the meantime, no answering affidavit had been filed or served. The Court proceeded to make final orders granting the application and dismissing the appeal with costs.
Shortly after those orders had been made, the appellant appeared and asked to be heard. He informed the Court that as the case had not been mentioned in the court list published in the daily newspaper, he had assumed that it had been adjourned out of the list and was not to proceed. He appears not to have sought to confirm that conclusion by inquiry of the Court or the respondent. He simply did not come until, fortuitously, it was brought to his attention that the matter was to be heard.
The appellant sought an adjournment. He said it was not the case that he had done nothing to advance the matters since 24 October. He said he had done "extensive research". He had not prepared and filed an affidavit because he suffered from serious ailments and had been advised by his doctor to take no action in respect of his legal matters because of concern at the possible effect of the stress which that might cause. However, the appellant did speak of an appointment that very afternoon before the Federal Court concerning a migration matter.
When pressed on the medical question, the appellant said he had three reports of medical practitioners which he handed up. They record an admission to Fremantle Hospital on 17 November 2001 following the appellant's reported collapse at a bus stop. An electro encephalogram was performed. Upon the appellant's discharge from hospital on the following day, a physician reported that there were no abnormalities in relation to his heart apart from variation in blood pressure which was to be monitored and for which it appears medication was prescribed.
The appellant had apparently suffered chest pains before this incident. He handed up a report from a cardiology registrar at Royal Perth Hospital dated 2 November 2001 in respect of a review conducted when he attended the hospital on 1 November. He was established to have mild coronary artery disease. He is a diabetic. Medication was prescribed but the doctor expressed uncertainty as to the cause of his reported chest pains. One opinion expressed was that the symptoms "are probably of hypotensive origin".
None of the reports record the opinion of which the appellant spoke that he should avoid all stress associated with work on his legal matters. He told the Court that that was the opinion of his general practitioner who had been too busy to place it on record so that it could be put before the Court. In the final analysis therefore, we are left with some rather unclear information as to the extent and severity of the appellant's physical problems and nothing to support his statement from the bar table that delay was attributable to medical advice he had received.
As to that, the appellant sought the opportunity to place before the Court his submissions as to the capacity of the Court to reopen the matter, final orders having been made, as to the merits of the strike‑out application and the proposed appeal, and an affidavit as to the facts concerning the very substantial delay which had occurred.
The Court then ordered that the matter be further adjourned so that such written submissions and affidavit evidence might be provided by the appellant by 21 December 2001. The appellant protested that the two weeks allowed might be difficult to comply with in view of the "fairly heavy matters" that he had to handle before the Federal Court over the next two weeks. Nonetheless, that was the time fixed. To those submissions and to any affidavit material filed, the respondent (having regard to the season and counsel's plans for leave) was to have until 18 January 2002 to respond. The Court would then determine whether it should hear the parties further by way of oral argument or whether it would finally dispose of the matter on the basis of those written submissions.
When the Court would not be moved from 21 December as the date upon which the appellant's submissions and affidavit evidence (if any) were to be filed and served, the appellant said that because of the importance of the matter, "I will set aside all the other matters and do this and give top priority to this." Nothing was heard from him by 21 December 2001 or, indeed, since. The Court caused a letter to be hand‑delivered to the appellant's office on 31 January 2002. He was given a further opportunity to file written submissions and any affidavit evidence within seven days, failing which judgment would be given. That timetable also was not complied with.
In all the circumstances, it seems to us that although the Court would have the power to recall the final orders made and reopen the respondent's application for further hearing, there is no ground upon which it should do so: Norman v Norman (1992) 6 WAR 372.
The respondent has an obvious interest in maintaining the finality of the proceedings before the Disciplinary Tribunal having regard to the matters of publication to which we have referred, as well as generally. Only if the failure to recall the orders made would clearly be productive of a substantial miscarriage of justice in the matter before the Court should the orders be recalled. The only way in which this Court can now test that proposition in the light of the materials before it is to consider the merits of the application to dismiss the appeal and what arguable merit there may be in the proposed appeal itself.
We have referred to the chronicle of delay attendant upon the appeal and to the fact that it is even the case that the appeal itself has not been properly instituted out of time by leave granted by the Court. There is, in our opinion, nothing before us, let alone anything of a persuasive character, to explain or excuse the very considerable delay which has occurred and which continues in the appellant's failure to meet the time limits imposed by the Rules and by the programming orders of the Court itself.
It is inevitable therefore, in our opinion, that the respondent's application should be granted unless, having regard to the proposed grounds of appeal, it would seem that there is arguable merit in them and substantial injustice might occur if they were left unaddressed further. In our opinion, it would need to be clear that those matters could now be placed before the Court for the expeditious determination of the issues involved.
Turning then to the grounds of appeal, the first involves the proposition that the appellant was not liable to be dealt with adversely upon the references made because the illegal conduct of which they complained occurred prior to his admission as a certificated practitioner. Under the Act, s 28D(2), the function of the Disciplinary Tribunal is in accordance with the part of the Act in which the provisions appear "to hear and determine all matters referred to the Tribunal for hearing". References are made by the Complaints Committee when that Committee determines that a matter should be heard by the Disciplinary Tribunal: s 28C(1). The Complaints Committee itself has jurisdiction of a summary kind under s 28A(1):
" … to make a finding, arising out of an inquiry under this Part, that a practitioner has been guilty of –
(a)illegal conduct;
(b)unprofessional conduct; or
(c)neglect, or undue delay, in the course of the practice of the law."
As we understand it, the argument is that to be amenable to the jurisdiction of the Complaints Committee and therefore to that of the Disciplinary Tribunal, the practitioner must have been guilty of illegal conduct or unprofessional conduct whilst a practitioner within the meaning of the Act although it is to be noted that it is only neglect or undue delay which must occur in the course of his or her practice of the law. By s 3 a "practitioner" is defined as a person admitted and entitled to practise as a barrister and solicitor of the Supreme Court of Western Australia. It is not, of course, necessary that to be a practitioner within the meaning of the Act the person must hold a valid current practice certificate.
Were the matter left within the four corners of s 28A(1), the argument might be sustainable but, in our opinion, that it is without merit is put beyond doubt by the provisions of s 25(1). It is that provision under which the Complaints Committee is established to supervise the conduct of practitioners and the practice of the law as well as to receive complaints from various sources:
"… as to any illegal or unprofessional conduct on the part of any practitioner, whether occurring before or after admission as a practitioner, or as to any neglect, or any undue delay, in the course of the practice of the law, …" (our emphasis)
In our opinion, the words given emphasis in the quote make it abundantly clear that illegal conduct occurring before a person's admission as a practitioner may constitute illegal conduct of a kind which will as a matter of power give rise to the jurisdiction of the Complaints Committee and hence, by reference thereby, to the jurisdiction of the Disciplinary Tribunal.
The second ground of appeal involves the contention that not only must the conduct in question have occurred at a time when the person was a practitioner within the meaning of the Act but it must have occurred in the course of that person's practice of the law. The portions of s 25(1) and s 28A(1) quoted make it, in our opinion, abundantly clear that such is not the proper interpretation of the Act.
Before the Tribunal the illegal conduct of which the references complained was sought to be proved by proving convictions for that conduct. That was accepted as evidence of the commission of the illegal conduct although the appellant argued that the Tribunal was obliged to hear evidence to establish the facts upon which the convictions were based and was obliged itself to find beyond reasonable doubt that offences against the Migration Act had been committed before it was open to it to conclude that the practitioner had been guilty of illegal conduct. The Tribunal noted that there was no dispute by the practitioner that the convictions had occurred and, indeed, in his answer to the references that was accepted.
The Legal Practitioners Act contains a provision, s 31AA. By subsection (1), in the exercise of the jurisdiction of the Complaints Committee or the Disciplinary Tribunal:
" … a finding may be made that a practitioner has been guilty of illegal conduct on it being shown that the practitioner stands convicted of an offence by or before a court exercising jurisdiction in any place, whether in Australia or elsewhere, being a conviction which occurred within the period of 10 years prior to the commencement of the proceedings under this Act in which that finding may be made."
By subsection (2) the Complaints Committee and the Disciplinary Tribunal are not required to inquire "as to the propriety of the conviction" the proof of which may be in a mode accepted by the Committee or Tribunal.
That section was first introduced into the Act with effect from 18 September 1995, after the convictions in question had been sustained, and the practitioner argued unsuccessfully before the Tribunal that the respondent could not therefore avail itself of that mode of proof because s 31AA could not be given a retrospective operation.
The Tribunal concluded that at common law the fact of the conduct might be proved by the fact of conviction of it, but in any event the section was obviously procedural in character, being applicable in the exercise of the Tribunal's jurisdiction in respect of any conviction sustained within the period of 10 years prior to the commencement of the proceedings before the Tribunal. In our respectful opinion, that view is clearly right and this ground is without merit.
The fifth ground of appeal asserts that this was a fit case to invoke the provisions of s 31AA to defer the imposition of penalty after an adverse finding was made. The ground does not attack the findings against which the appeal is brought. The ground appears to be intended to refer, incorrectly in our view in its statement of the effect of the provision, to s 31AA(3) which provides that where an adverse finding of illegal conduct is made against a practitioner based upon a conviction that is subsequently quashed, set aside or changed, then the Committee or Tribunal, as the case may be, is to reconsider the adverse finding. Where the conviction has been changed, it may change the nature of the adverse finding. But if the conviction is quashed or set aside, the Committee or Tribunal is to quash or set aside the adverse finding and any order made as a consequence of it. The answers of the practitioner refer to various appellate procedures in relation to the convictions which, if the answers are taken at face value, may yet not be disposed of. If they are pursued and result in the convictions or any of them being quashed, then s 31AA(3) will have its operation. Until then it is irrelevant as a ground of appeal against the adverse findings. It follows that there is no merit in ground 5.
The fourth ground of appeal relates to two of the three references in respect of which, upon the convictions being sustained in the Court of Petty Sessions, fines of $1,000 were imposed. It is asserted that in those circumstances the Tribunal should have held that r 20(b) of the Legal Practice Board Rules 1949 applies. In our opinion, the rule is irrelevant. Rule 20 is concerned with the procedures upon applications for approval of the registration of articles. A form of application is provided by r 20(b). Certain conduct must be disclosed but, by note 5 to the form of application, convictions where the penalty imposed does not exceed $1,000 need not be disclosed unless a sentence of imprisonment is also imposed. This can have nothing to do with the correctness of a finding that the conduct as a result of which such a conviction was sustained would constitute illegal conduct for the purposes of the Act. There is ample authority for the view that illegal conduct in this context is simply conduct which is unlawful in the sense that it is contrary to the written law.

Our conclusion was and remains that the appeal proposed by the appellant is entirely without merit. As we have said, there is no explanation for the substantial delay which has occurred and it follows that the order that the appeal should be dismissed for want of prosecution should stand.