DE LA HUNTY and LEGAL PROFESSION COMPLAINTS COMMITTEE
[2012] WASAT 168
•16 AUGUST 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: DE LA HUNTY and LEGAL PROFESSION COMPLAINTS COMMITTEE [2012] WASAT 168
MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MR R EASTON (SENIOR SESSIONAL MEMBER)
MR S ELLIS (SENIOR SESSIONAL MEMBER)
HEARD: 3 AUGUST 2012
DELIVERED : 3 AUGUST 2012
PUBLISHED : 16 AUGUST 2012
FILE NO/S: VR 76 of 2012
BETWEEN: PHILLIP LAWRENCE DE LA HUNTY
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First RespondentDENNIS IVAN ISAACS
Second Respondent
Catchwords:
Legal practitioners Review of decision of Legal Profession Complaints Committee to dismiss complaint about legal practitioner Concurrent conflict of interest between clients Practitioner accepted instructions from two brothers who were executors under a will of their mother to obtain probate of the will and to assist with the affairs of the estate One brother then contended that another document was the last will and testament of the mother Practitioner acted on behalf of one brother against the other brother in probate proceedings concerning the will Whether there is any reasonable likelihood that practitioner might be found guilty by the Tribunal of unsatisfactory professional conduct
Legislation:
Legal Profession Act 2008 (WA), s 424(1), s 425, s 426, s 435
State Administrative Tribunal Act 2004 (WA), s 73(1)
Result:
Application for review allowed in part
Decision of first respondent to dismiss an aspect of the complaint set aside and decision substituted that that aspect of the complaint is not dismissed
First respondent directed to take action in relation to the aspect of the complaint not dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
First Respondent : Ms PE Le Miere
Second Respondent : Mr MC Goldblatt with Mr IB Murie
Solicitors:
Applicant: Self-represented
First Respondent : Law Complaints Officer
Second Respondent : Muries Lawyers
Case(s) referred to in decision(s):
Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56
Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58
Martelli and Legal Profession Complaints Committee [2011] WASAT 179
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Phillip de la Hunty made a complaint to the Legal Profession Complaints Committee about Mr Dennis Isaacs, a legal practitioner who had been retained by him and his brother as executors under a will of their deceased mother to apply for probate of the will and to assist with the affairs of the estate pending the grant of probate. The Legal Profession Complaints Committee dismissed the complaint as it considered there was no reasonable likelihood that the practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct if the complaint were referred to the Tribunal.
Mr de la Hunty sought review by the Tribunal of the Legal Profession Complaints Committee's decision under s 435 of the Legal Profession Act 2008 (WA).
An aspect of Mr de la Hunty's complaint was that a conflict of interest had arisen when the practitioner, while continuing to represent the estate generally, accepted and acted on the instructions of Mr de la Hunty's brother in a probate proceeding against Mr de la Hunty and his other siblings.
The Tribunal decided that there was a reasonable likelihood that the practitioner might be found guilty of unsatisfactory professional conduct in relation to this aspect of the complaint were it to be referred to the Tribunal. The Tribunal considered, therefore, that the correct and preferable decision was that this aspect of the complaint should not be dismissed summarily by the Legal Profession Complaints Committee.
The Tribunal determined that there was no reasonable likelihood that the practitioner would be found guilty of either unsatisfactory professional conduct or professional misconduct in relation to the other aspects of Mr de la Hunty's complaint.
The Tribunal's reasons, taken from the transcript and edited in minor respects for clarity, were as follows.
Introduction
This proceeding involves an application brought by Mr Phillip Lawrence de la Hunty, pursuant to s 435 of the Legal Profession Act 2008 (WA) (LP Act), for review of the decision of the Legal Profession Complaints Committee (Committee) to dismiss a complaint made by Mr de la Hunty about a legal practitioner, Mr Dennis Ivan Isaacs (practitioner). The complaints were made in a complaint form provided to the Committee on about 26 June 2009.
Following an inquiry and consideration of the complaints and responses from the practitioner, the Committee determined to dismiss the complaints under s 425 of the LP Act on the basis that the Committee was satisfied that there is no reasonable likelihood that the practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct.
Section 425 para (a) of the LP Act enables the Committee, after an investigation of a complaint against a legal practitioner, to dismiss the complaint if it is satisfied that:
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.
Background
The Committee provided Mr de la Hunty and the practitioner with reasons for its decision in a letter dated 18 April 2012. In the letter, the Committee helpfully summarised both the factual background and the essential statement of the complaint. In terms of the factual background, the Committee summarised the circumstances in the following terms:
[Mr Phillip de la Hunty] was one of four beneficiaries of the estate of his late mother [Ms Shirley Barbara de la Hunty] (deceased), who died on 11 February 2004. [Mr Phillip de la Hunty] had been nominated as a coexecutor (with his brother, [Dr David de la Hunty]) in a will executed by the deceased in 1995 (1995 Will). In March 2004, [Mr Phillip de la Hunty] and [Dr David de la Hunty] retained the practitioner to apply for probate of the 1995 Will and to assist with the affairs of the estate pending the grant of probate. However, before an application for a grant of probate of the 1995 Will could be made, a file was found on the deceased's computer entitled 'Addendum to Will Nov 03', which the deceased had apparently prepared in 2003 (2003 document). [Mr Phillip de la Hunty] and two other siblings, [Barbara Gaye Zoe de la Hunty], and [Matthew Sterling de la Hunty], claimed that [the document discovered on the deceased's computer] was a testamentary document which was intended to be the deceased's new will. However, [Dr David de la Hunty] disagreed and instructed the practitioner to file an application to prove the 1995 Will in solemn form (probate application). [The probate application proceeding was commenced on 9 June 2005 in the Supreme Court of Western Australia and was referred to as CIV 1647 of 2005]. In the probate proceeding, [Mr Phillip de la Hunty], [Ms Barbara de la Hunty] and [Mr Matthew de la Hunty] opposed the proof of the 1995 Will and filed a counterclaim seeking instead an order that probate be granted of the 2003 document [found on the deceased's computer]. The probate proceeding was ultimately settled and all parties consented to an order proving the 1995 Will.
The practitioner stated in correspondence to the Committee that he 'looked after the estate' of the deceased from February 2004 until 2008. He then handed over the estate files to Tolson & Co to enable them to apply for the grant of probate. Probate was granted in June 2008 on the application of Tolson & Co in accordance with the settlement of the probate proceeding. The practitioner retired from practice at the end of 2008.
Mr de la Hunty's complaint
In the letter of reasons from the Committee dated 18 April 2012, the Committee summarised the essence of the complaint made by Mr Phillip de la Hunty in the following terms:
The complainant alleged that, when the practitioner had acted for [Dr David de la Hunty] in the probate application, he had had a conflict of interest because:
•he had acted for [Dr David de la Hunty] from time to time prior to the death of the deceased;
•he had already accepted instructions from the complainant and [Dr David de la Hunty], as co-executors of the 1995 Will, to apply for probate of the 1995 Will, and to assist with the affairs of the estate pending the grant of probate;
•he had prepared the 1995 Will and had been provided with confidential information about the affairs of the deceased while she was alive; and
•he had given advice to the deceased about an unsigned will of the deceased, which had been prepared by other solicitors in 2000 (the 2000 Will) and the 2003 document.
Applicable principles
The applicable principles in this type of proceeding were summarised by the Tribunal in Martelli and Legal Profession Complaints Committee [2011] WASAT 179 (Martelli) at [16] - [19] as follows:
If leave is granted under s 435(2) of the LP Act for the review of a decision of the Committee to dismiss a complaint against a practitioner, or if leave is not required for a review, then, as the Tribunal said in Vella and Bowden [2011] WASAT 56 at [6]:
In reviewing the Complaints Committee's decision, the function of the Tribunal is to conduct a hearing de novo, that is, to consider each of the complaints … and to determine whether there is any reasonable likelihood that the Tribunal might, on referral to it [by the Committee] of the complaints [under s 428 of the LP Act], find [the practitioner] guilty of either unsatisfactory professional conduct or professional misconduct.
'Unsatisfactory professional conduct' is defined in s 402 of the LP Act as follows:
402.Unsatisfactory professional conduct
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' is defined by s 403 of the LP Act as follows:
403.Professional misconduct
(1)For the purposes of this Act
'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.
The meaning of the expression 'reasonable likelihood' in s 425 of the LP Act was discussed by the Tribunal in Greenwood and Legal Profession Complaints Committee [2010] WASAT 31 (Greenwood) at [27] [29] 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).
The first aspect of Mr de la Hunty's complaint
In relation to the first aspect of the complaint, that there was a conflict of interest because the practitioner acted for Dr David de la Hunty from time to time prior to the death of their mother, we consider, consistently with the decision of the Committee, that there is no reasonable likelihood that the Tribunal might, on referral of this aspect of the complaint by the Committee, find the practitioner guilty of either unsatisfactory professional conduct or professional misconduct.
The most significant document relied on by Mr Phillip de la Hunty in relation to this aspect of his complaint was a letter written by the practitioner in 2000 on behalf of Dr David de la Hunty in relation to a land tax matter. The practitioner, in an email, initially denied that he had acted on behalf of Dr David de la Hunty in any matter prior to 2004; however, that was, we find, a mistake on his part.
The land tax matter in respect of which the practitioner wrote the letter in 2000 was completely unrelated to the probate application and, in our view, no conflict could be said to arise.
Another document relied upon by Mr Phillip de la Hunty was a deed of possession and a mortgage, but in relation to that document we find, as the Committee did, that the practitioner was acting for the deceased, not for Dr David de la Hunty. It appears that the practitioner had acted generally for the deceased over a considerable period of time.
The second aspect of Mr de la Hunty's complaint
In relation to the second aspect of the complaint, that there was a conflict of interest because the practitioner had already accepted instructions from Mr Phillip de la Hunty and Dr David de la Hunty as coexecutors of the 1995 will to apply for probate of that will, and to assist with the affairs of the estate pending probate, the Committee considered that this matter did not give rise to any conflict of interest because the instructions from Dr David de la Hunty to prove the 1995 will were consistent with the instructions which the practitioner had previously received from both coexecutors. The Committee considered that the fact that Mr Phillip de la Hunty subsequently decided to instead seek probate of the 2003 document did not give rise to a conflict, nor did the Committee consider that there was any conflict because the practitioner had continued to assist with the affairs of the estate both during and subsequent to the probate proceeding.
However, the existence of a reasonably arguable conflict of interest is apparent, in our view, at least in terms of the low threshold that is in question under s 425 of the LP Act, on the face of the statement of claim in the probate proceeding. Paragraph 5 of the statement of claim identified that:
The first to third defendants claim that the Deceased's last will is a document in digital form allegedly stored on the Deceased's computer, said to have been originally created on 30 October 2003 and said to have been modified on 25 January 2004.
In other words, the conflict, which was a concurrent conflict between the position of Mr Phillip de la Hunty and Dr David de la Hunty, was known prior to the commencement of the proceeding, and did not arise from a counterclaim in the proceeding. While there was originally no conflict of interest between the coexecutors when they both proposed probate of the 1995 will, a conflict arose prior to the commencement of the probate proceeding. As Professor GE Dal Pont said in Lawyers' Professional Responsibility (Lawbook Co, 4th ed, 2009) at [7.05]:
For a lawyer to represent two or more clients with conflicting interests impinges on client loyalty. More so arguably than in the lawyerclient conflict situation, because in representing multiple clients with conflicting interests a lawyer will almost invariably not fulfil the requisite duty of undivided loyalty to one or more of those clients. The presence of conflicting client interest itself undermines the ability to give loyalty to each client concurrently.
In his submissions to the Tribunal, Mr Phillip de la Hunty, although not referring to this passage, essentially raised concerns which are reflective of the points made by Professor Dal Pont. In particular, Mr Phillip de la Hunty was concerned about the surprise, and lack of loyalty, as he perceived it, shown by the commencement of proceedings against him by the lawyer that he, together with his brother, retained in relation to probate and the estate generally.
In this case, the practitioner continued to represent both coexecutors Mr Phillip de la Hunty and Dr David de la Hunty in relation to the estate generally (and with instructions that included seeking probate in respect of the estate) when he was instructed and proceeded on the instructions to act in the probate proceeding on behalf of Dr David de la Hunty against Mr Phillip de la Hunty and others. There was clearly a fundamental conflict between the positions advanced by Dr David de la Hunty and Mr Phillip de la Hunty, and that conflict was known to the practitioner prior to the commencement of the probate proceeding.
Furthermore, although the practitioner only represented Dr David de la Hunty in the probate proceeding and did not purport to represent Mr Phillip de la Hunty in that matter, as Professor Dal Pont said at [7.30]:
… a concurrent conflict of interest, unless cured by client consent, usually requires withdrawal from representing each client[.]
However, the practitioner represented one brother against the other brother in the proceeding, both in the preparation and filing of the originating process and in the negotiations that ultimately led to settlement of the probate issue.
The practitioner's position, as conveyed to the Committee, in particularly in the letter of 30 July 2010 and as further articulated by his counsel, Mr MC Goldblatt, who appeared with Mr IB Murie before us, was that the complaint is 'illfounded and illconsidered' because 'the estate and the litigation were separate'.
However, no neat distinction, in our view, can be drawn between the functions the subject of the joint instruction by the coexecutors and the litigation. The instructions that the practitioner originally received from both brothers was to obtain probate of the 1995 will and to assist with the affairs of the estate pending the grant of probate. The litigation concerned whether the 1995 will or the 2003 document comprised the last will and testament of the deceased. In that proceeding, the practitioner contended on behalf of one brother's position over the other.
The retainer from the brothers jointly, and the litigation, both, therefore, concerned the estate in general and probate in the context of the estate in particular. Moreover, while it is correct that the instructions from Dr David de la Hunty in the litigation were consistent with the original instructions of the brothers as coexecutors to the practitioner, plainly the position of Mr Phillip de la Hunty had changed in relation to his instructions as coexecutor to the knowledge of the practitioner, and hence a concurrent conflict arose.
Mr Goldblatt made a number of submissions as to whether or not the Tribunal could be satisfied that there is no reasonable likelihood that the practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct. Mr Goldblatt argued that the threshold under s 425 of the LP Act for the complaint to proceed is not satisfied when all circumstances are considered.
In particular, Mr Goldblatt submitted on behalf of the practitioner that the probate proceeding could not be termed strictly 'adversarial' in nature. The proceeding was, Mr Goldblatt submitted, intended to determine which of the two testamentary documents was in fact the last will and testament of the deceased. There is some force in this submission. The intention of the proceeding was to determine which document had effect as the last will and testament of the deceased; however, the proceeding was commenced on behalf of only one of the coexecutors in circumstances where there was a clear conflict between the position of the coexecutors.
The proceeding was then advanced by the practitioner on behalf of one of the coexecutors to achieve an outcome that was contrary to the position of the second coexecutor. The proceedings were therefore, in our view, adversarial in the sense that one client argued for the 1995 will while the other client, who did not commence the proceeding, argued for the 2003 document.
Mr Goldblatt also submitted that what occurred in the commencement of the proceeding by the practitioner was the logical way to break an 'impasse' which had obviously developed between the two brothers by getting a declaration from the court as to which document was the last will and testament of the deceased. That is undoubtedly correct. The commencement of proceedings in the court was a logical, and perhaps the only available, option. However, the circumstances of the case are important in that the practitioner accepted instructions from one of the coexecutors to commence proceedings against the other coexecutor, as beneficiary, and the other beneficiaries, and advanced a position in the proceeding that was contrary to the position of the other coexecutor.
It is correct, however, as Mr Goldblatt submitted and as we have found, that commencement of a proceeding was a logical process. It is also correct, as Mr Goldblatt submitted on behalf of the practitioner, that it appears that noone was ultimately prejudiced by the course of action that was taken because Mr Phillip de la Hunty obtained legal representation and the proceeding was settled with the consent of all parties.
However, we are unable to find that there is no reasonable likelihood that the practitioner would be found guilty of unsatisfactory professional conduct if this complaint were referred to the Tribunal. In our view, this aspect of the complaint should not have been summarily dismissed. This is because there is a real, and not a fanciful or remote, chance, and therefore it is reasonably likely within the meaning of s 425 of the LP Act, that the practitioner acted in a situation in which there was a concurrent conflict between two clients, and therefore that he might be found guilty of unsatisfactory professional conduct. We deliberately express ourselves in terms of a finding of unsatisfactory professional conduct rather than professional misconduct, as it is clear from the foregoing arguments of Mr Goldblatt, when taken together with the arguments to which we will come both in the context of this issue and at the end of these reasons more broadly, that there is no reasonable likelihood that the practitioner would be found guilty of professional misconduct, a significantly more serious outcome.
Mr Goldblatt also submitted that if there was a conflict of interest then that had been cured by acquiescence because no complaint of conflict was made until June 2009, some four years after the conflict arose, and the complainant, Mr Phillip de la Hunty, was represented by solicitors in the probate proceeding. However, in order to cure a conflict from a professional ethical perspective, the consent, in our view, needs to be informed and given clearly and unequivocally in advance, otherwise, from an ethical perspective, the breach has occurred before acquiescence is said to somehow cure the breach. In our view, in a professional ethical context, that simply cannot be the case. However, from a civil perspective, acquiescence in that form may possibly be an answer; that is beyond the scope of this proceeding.
The definitions of 'unsatisfactory professional conduct' and 'professional misconduct' are set out in an inclusive manner in s 402 and s 403 of the LP Act. Those provisions contain what the Tribunal has described as examples of conduct which may satisfy those terms; they are not intended to be exhaustive: see Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (in de Braekt) at [22] [25] . In particular, as discussed there, the inclusive definitions of the terms 'unsatisfactory professional conduct' and 'professional misconduct' are not intended to exclude the common law concept of 'unprofessional conduct'. In in de Braekt the Tribunal referred to the statement of the common law concept of unprofessional conduct in Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 in which Parker J, with whom Ipp and Steytler JJ agreed, identified the two limbs of the common law concept at [61]. The second limb of unprofessional conduct as stated by Parker J at [61] is conduct that:
… to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence.
In our view, in relation to this aspect of the complaint there is a reasonable likelihood, in the sense that there is a real chance, or one that is not fanciful or remote, that the practitioner might be found guilty by the Tribunal of unsatisfactory professional conduct in terms of the second limb of unprofessional conduct at common law. In making this finding we, of course, are not saying that the practitioner is actually guilty of unsatisfactory professional conduct, but only that we consider that the correct and preferable decision in this case is that the complaint in this respect cannot be summarily dismissed under s 425 of the LP Act.
The third and fourth aspects of Mr de la Hunty's complaint
In relation to the third aspect of the complaint, involving an allegation that the practitioner prepared the 1995 will and had been provided with confidential information by the deceased, the Tribunal agrees with the reasons for decision of the Committee. In particular the Committee noted that:
… the practitioner denied that he knew whether the deceased intended the sale of land [that occurred in 1998 by the deceased to her son Dr David de la Hunty] to be in lieu of a testamentary gift.
As the Committee said, 'it was irrelevant to [the probate proceeding] that the practitioner knew what the deceased's testamentary intention had been in 1995' when he prepared the will that she signed.
In our view, no conflict of interest could be said to arise in relation to this aspect of the complaint.
Similarly, in relation to the fourth aspect of the complaint, involving an allegation that the practitioner had given advice to the deceased about an unsigned will prepared in 2000 and the 2003 document, we consider that no conflict of interest could be said to arise. The practitioner said that he had advised the deceased concerning the 2000 will and she had not signed it. The practitioner also said that he had been unaware of the 2003 document until after the death of the deceased and therefore had not advised her about it.
Further points raised by Mr de la Hunty regarding provision of information
Finally, the complaint by Mr Phillip de la Hunty, as made to the Committee, and as articulated by him before us, also raised some points in relation to the lack of provision of information or documents, as he perceived it, by the practitioner, and in relation to the practitioner charging the estate on the basis of the instructions given jointly by the coexecutors for work which was, in substance, work undertaken by the practitioner on behalf of Dr David de la Hunty alone.
It is clear that the practitioner, in acting on behalf of the estate, sometimes spoke or sent emails to one brother, not copying the other brother, and sometimes spoke or sent emails to both brothers. There does not appear to us to be any basis of an allegation of conflict of interest in terms of the communications, nor in terms of the billing made by the practitioner. The concern about lack of information or documents was regarded by Mr Phillip de la Hunty in his submissions, and correctly so, as essentially symptomatic of the concern that he expressed about the conflict in terms of acting for his brother in the probate proceeding.
The correct and preferable decision
For these reasons, we consider that in relation to one aspect of the complaint made by Mr Phillip de la Hunty, the correct and preferable decision is not to dismiss the complaint in that respect under s 425 of the LP Act on the basis that there is no reasonable likelihood that the practitioner would be found guilty by the Tribunal of unsatisfactory professional conduct. That aspect of the complaint is that the practitioner, having accepted instructions jointly from Dr David de la Hunty and Mr Phillip de la Hunty as coexecutors of the estate of the late Shirley de la Hunty and acting on those instructions, acted on behalf of Dr David de la Hunty against Mr Phillip de la Hunty and others in the probate proceeding concerning the will of the late Shirley de la Hunty.
The remaining aspect of the complaint
The LP Act in s 424(1) states as follows:
After an investigation under section 421 is completed, the Complaints Committee must
(a)in the case of the investigation of a complaint, dismiss the complaint under section 425 or, in the case of an investigation on the initiative of the Complaints Committee, decide to take no further action; or
(b)take action under section 426; or
(c)refer the matter to the State Administrative Tribunal under section 428.
In consequence of our finding that one aspect of the complaint is not dismissed under s 425 of the LP Act, that aspect of the complaint remains before the Committee to take action under para (b) or para (c) of s 424(1) of the LP Act.
The action to be taken by the Committee is a matter entirely for the Committee and the Tribunal has no jurisdiction in relation to it. We note, however, having heard submissions that were made on behalf of the practitioner, that a number of the submissions may well be highly relevant to the question of whether any action should be taken in terms of professional disciplinary consequence in relation to the aspect of the complaint that remains before the Committee, and if action is taken, what is an appropriate professional disciplinary consequence.
It may well be, although this is a matter entirely for the Committee, that the appropriate outcome in light of the arguments presented before us, is summary conclusion of the complaint under s 426 of the LP Act.
The arguments that were presented before us, in brief, were:
1)That the practitioner was attempting to act in the best interests of the estate and to resolve an impasse between the brothers by having the Supreme Court decide the issue of which document was the last will and testament of the deceased. As we have observed previously, the commencement of proceedings in the Supreme Court was a logical step to take, although for reasons that we have given, the proceeding ought arguably not to have been commenced by the practitioner on behalf of one brother against the other. We accept on the evidence that we have that the practitioner considered that his actions were in the best interests of the estate in attempting to resolve the conflict.
2)There has been no complaint made about the administration of the estate by the practitioner and there is no evidence before us of any prejudice to the estate by the practitioner's conduct.
3)As we have observed earlier, Mr Phillip de la Hunty and his sister and brother were represented by solicitors in relation to the probate proceeding and there is no suggestion that they were prejudiced in their participation in that proceeding and in the resolution of that proceeding by the practitioner's conduct.
4)There was no complaint made about a conflict of interest during the Supreme Court proceeding, even though the complainant, Mr Phillip de la Hunty, was legally represented.
5)It has been now over seven years since the Supreme Court proceeding was brought and over four years since the probate of the estate was granted.
6)The proceeding was settled between the parties.
7)The practitioner retired from practice in 2008.
8)The complaint of a conflict of interest was only made in June 2009, four years after the conflict arguably arose.
As we say, all of these arguments presented to us on behalf of the practitioner may well be relevant to the question of whether any professional disciplinary consequence should flow, and if so, what professional disciplinary consequence should flow, from the practitioner's conduct.
These arguments, however, do not dissuade the Tribunal from the findings expressed earlier in relation to whether one aspect of the complaint as we have found it should not have been dismissed under s 425 of the LP Act.
Orders
For these reasons, the Tribunal makes the following orders.
1.The application for review is allowed in part.
2.The decision made by the first respondent to dismiss the complaint in the schedule below pursuant to s 425 of the Legal Profession Act 2008 (WA) is set aside, and a decision is substituted that the complaint in the schedule below is not dismissed.
3.Pursuant s 73(1) of the State Administrative Tribunal Act 2004 (WA) the first respondent is directed to take action in relation to the complaint in the schedule below under the Legal Profession Act 2008 (WA), having regard to the Tribunal's decision on the review.
Schedule
The complaint that the second respondent, having accepted instructions jointly from Dr David de la Hunty and Mr Phillip de la Hunty as the executors of the estate of the late Shirley Barbara de la Hunty, and acting on those instructions, acted on behalf of Dr David de la Hunty against Mr Phillip de la Hunty and others in probate proceedings CIV 1647 of 2005 in the Supreme Court of Western Australia concerning the will of the late Shirley Barbara de la Hunty.
I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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