DIAO and LAW COMPLAINTS OFFICER as the delegate of the LEGAL PROFESSION COMPLAINTS COMMITTEE
[2023] WASAT 73
•18 AUGUST 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: DIAO and LAW COMPLAINTS OFFICER as the delegate of the LEGAL PROFESSION COMPLAINTS COMMITTEE [2023] WASAT 73
MEMBER: JUDGE K GLANCY, DEPUTY PRESIDENT
MR D AITKEN, SENIOR MEMBER
MS R LAVERY, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 18 AUGUST 2023
PUBLISHED : 18 AUGUST 2023
FILE NO/S: VR 75 of 2022
BETWEEN: YING DIAO
Applicant
AND
LAW COMPLAINTS OFFICER as the delegate of the LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
SHARRON ANN PATRICK
Second Respondent
Catchwords:
Vocational regulation – Legal practitioner – Review of decision dismissing complaint about legal practitioner – Application for review of decision of Law Complaints Officer as delegate of Legal Profession Complaints Committee to dismiss complaint against practitioner – Allegation of unsatisfactory professional conduct or professional misconduct – Complaint that practitioner had close personal relationship with client – Transitional provisions – Effect of repeal of the Legal Profession Act 2008 (WA) and commencement of the Legal Profession Uniform Law Application Act 2022 (WA) upon application for review – Legal Profession Conduct Rules 2010 (WA) – Decision to dismiss complaint affirmed
Legislation:
Legal Profession Act 2008 (WA), s 402, s 403, s 404, s 415(1)(b), s 435, s 435(1)
Legal Profession Conduct Rules 2010 (WA)
Legal Profession Uniform Law Application Act 2022 (WA), s 6(1), s 6(2), s 57, s 266, s 269, s 272, s 276(1), s 277, s 318, s 319, s 319(2), s 319(3), s 319(3)(a), s 319(3)(b), s 319(3)(c), s 319(4)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 29(1), s 29(3), s 60(2)
State Administrative Tribunal Rules 2004 (WA)
Result:
First Respondent's decision made on 13 June 2022 to dismiss the complaint is affirmed
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| First Respondent | : | N/A |
| Second Respondent | : | N/A |
Solicitors:
| Applicant | : | In Person |
| First Respondent | : | In Person |
| Second Respondent | : | Alto Legal Pty Ltd |
Case referred to in decision:
Chen and Law Complaints Officer [2022] WASAT 26
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Ms Ying Diao, (the Applicant), has applied for a review of a decision made on 13 June 2022 by the Law Complaints Officer as delegate of the Legal Profession Complaints Committee (the Reviewable Decision).
In the Reviewable Decision, the Law Complaints Officer as delegate of the Legal Profession Complaints Committee (the First Respondent) dismissed the Applicant's complaints about the conduct of the Second Respondent, a legal practitioner, pursuant to s 415(1)(b) of the Legal Profession Act 2008 (WA) (the LP Act) on the basis that Matter 1 of her complaint was misconceived and that Matters 2 and 3 were lacking in substance.
Outcome
For the reasons set out below, we have determined that the correct and preferable decision on the review is to affirm the First Respondent's decision to dismiss the Applicant's complaint.
Application for review determined on the documents
On 18 October 2022, the Tribunal made orders requiring the Applicant to:
(a)by 30 November 2022, file with the Tribunal and give to the Respondents an indexed and paginated bundle in chronological or other logical order of the documents they consider relevant to the proceeding which are not already contained in the Section 24 Bundle which had been filed by the First Respondent; and
(b)by 6 January 2023, file with the Tribunal and give to the Respondents any written submissions in support of her application.
On that same date, the Tribunal made an order that, subject to any further order, the matter would be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The Applicant failed to comply with the orders about the filing of documents and submissions.
On 14 February 2023, the Tribunal again made orders requiring the Applicant to file with the Tribunal and to give to the Respondents any documents which she considered relevant to the proceeding which were not already contained in the bundle of documents filed by the First Respondent and to file with the Tribunal and to give to the Respondents any written submissions in support of her application. On this occasion the Applicant was ordered to do so by 11 April 2023. The Tribunal also made an order putting the Applicant on notice that if she failed to file the documents and submissions the Tribunal would proceed to determine her Review Application on the documents, without further recourse to her. The Tribunal also made an order that, subject to any further order, the matter would be determined entirely on the documents pursuant to s 60(2) of the SAT Act.
The Applicant did not comply with those orders and has not filed any documents or submissions in support of her Review Application.
We have determined this review application entirely on the documents as we are permitted to do by s 60(2) of the SAT Act.
The documents to which we have had regard in determining this matter are:
(a)the Review Application and the matters set out therein;
(b)the documents contained in the First Respondent's Section 24 Bundle of Documents filed on 21 October 2022;
(c)a bundle of documents entitled the 'Second Respondent's Section 24 Bundle of Documents' filed 15 November 2022;
(d)the First Respondent's written submissions filed 30 January 2023; and
(e)the Second Respondent's submissions filed 30 January 2023.
Jurisdiction of the Tribunal to determine the application, correct name of the First Respondent and nature of the review
Before dealing with any application the Tribunal must determine whether it has jurisdiction to do so.
The Applicant's complaint was made on 6 January 2022 under the LP Act. The decision to dismiss it was made by the First Respondent on 13 June 2022. The Applicant's application for review of that decision was made on 22 August 2022 (the Review Application).
On 1 July 2022, the Legal Profession Uniform Law Application Act 2022 (WA) (Application Act) commenced operation.[1] It repealed the LP Act and implemented the Legal Profession Uniform Law[2] as a law of Western Australia.[3]
[1] See Legal Profession Uniform Law Application Act 2022 (WA) Commencement Proclamation 2022, SL 2022/113 at Government Gazette 30 June 2022, page 3921.
[2] Defined in s 6(1) of the Application Act.
[3] Application Act, s 6(2).
The Review Application was authorised under s 318 of the Application Act. It was made under s 319 of the Application Act. Section 319(2) of the Application Act provides that the review is to be carried out in accordance with s 435 of the LP Act as if that section had not been repealed.
Section 319(3) of the Application Act provides that if under s 435(1) of the LP Act, as continued under s 319(2), the Tribunal sets aside the decision of the Legal Profession Complaints Committee to dismiss the complaint under the LP Act:
1.the complaint is taken, on and from the commencement day, to have been made under s 266 of the Uniform Law;[4] and
2.the preliminary assessment of the complaint under the Uniform Law s 276(1) is taken on and from the commencement day, to have been completed;[5] and
3.the complaint must otherwise be dealt with under the Uniform Law.[6]
[4] Application Act, s 319(3)(a).
[5] Application Act, s 319(3)(b).
[6] Application Act, s 319(3)(c).
Section 319(4) provides that if, under subsection (2), the Tribunal affirms the decision of the Legal Profession Complaints Committee to dismiss the complaint under the LP Act, the whole of the complaint is taken to have ended under the s 277 of the Uniform Law.
The Application Act also established the Legal Services and Complaints Committee as a Committee of the Board in place of the Legal Profession Complaints Committee.[7] Section 269 of the Application Act provides that the Legal Services and Complaints Committee is the same entity as, and a continuation of, the Legal Profession Complaints Committee. Section 272 of the Application Act provides that the Law Complaints Officer appointed under the LP Act continues as the Legal Services and Complaints Officer for the purposes of the Application Act and the Legal Profession Uniform Law. Taken together, those provisions might suggest that, while the Review Application remains to be determined under s 435 of the LP Act, the First Respondent should now properly be named as 'the Legal Services and Complaints Officer as delegate of the Legal Service and Complaints Committee'.
[7] Application Act, s 57.
While the matter is not entirely clear, in our view the following matters lead to the conclusion, which we consider to be the preferable one, that the correct name of the First Respondent remains the Law Complaints Officer as the delegate of the Legal Profession Complaints Committee.
First, s 272 of the Application Act has the effect that the person who, immediately prior to the commencement of the Application Act, held the position of Law Complaints Officer is taken, on and from the time of the commencement of the Application Act, to be appointed to the office of Legal Services and Complaints Officer until the expiry of the term for which the person was appointed. That is not the same effect as that brought about by s 269 of the Application Act which continues an entity (the Legal Profession Complaints Committee) by another name (the Legal Services and Complaints Committee) on and from the commencement of the Application Act. The Application Act could not deal with them in the same way because the Law Complaints Officer and the Legal Services and Complaints Officer is a title or position held by an individual and is not an entity in the way that the Legal Services and Complaints Committee is an entity. That tends against the idea that after commencement the name of the First Respondent should be the Legal Services and Complaints Officer as delegate.
Secondly, as a matter of fact if the name of the Legal Profession Complaints Committee were to be changed to the Legal Services and Complaints Committee to reflect s 269 of the Application Act, then the First Respondent would be named 'the Law Complaints Officer as delegate of the Legal Services and Complaints Committee'. That would not be factually or legally correct because the Law Complaints Officer was never the delegate of the Legal Services and Complaints Committee either as a matter of fact or by operation of law.
Thirdly, s 319 contemplates that a review of a decision to which that section applies continues essentially unaffected by the Application Act until the Tribunal either affirms or sets aside the relevant decision, at which time the matter proceeds or ends as provided for in s 319(3) or s 319(4), as the case may be.
For those reasons, we conclude that we do not need to make any change to the name of the First Respondent and that the application continues with the First Respondent named as 'the Law Complaints Officer as delegate of the Legal Profession Complaints Committee'.
As we have already identified, section 319(2) of the Application Act provides that the review shall be carried out in accordance with s 435 of the LP Act as if that section had not been repealed.
In conducting the review, the matter proceeds as a hearing de novo.[8] The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.[9] In determining the review, the Tribunal has the functions and discretions corresponding to those exercised by the original decision‑maker in making the reviewable decision.[10] In determining the review the Tribunal may;[11]
(a)affirm the decision; or
(b)vary the decision; or
(c)set aside the decision that is being reviewed and –
(i)substitute its own decision; or
(ii)send the matter back to the original decision‑maker for reconsideration with any directions or recommendations it considers appropriate,
and may make any order it considers appropriate.
[8] SAT Act, s 27(1).
[9] SAT Act, s 27(2).
[10] SAT Act, s 29(1).
[11] SAT Act, s 29(3).
Factual Background
The factual background to this matter, which we set out below, is discerned from the documents.
The background to the complaint
The Applicant is estranged from her husband, who we shall refer to as H. He has a father, the Applicant's father-in-law, to whom we will refer as FIL. H also has a brother, the Applicant's brother-in-law, to whom we will refer as BIL.
The Applicant and H are the parents of two children.
The Applicant alleged that after she and H had separated, BIL began 'targeting her'. She alleged that on 6 August 2021, BIL acted in a manner that caused her fear. As a result, she applied for a Family Violence Restraining Order (FVRO) in the Magistrates Court of Western Australia. On 13 August 2021, an FVRO was made protecting the Applicant and her two children from BIL. The precise terms of the FVRO are irrelevant to the review application.
Both the Applicant and BIL engaged lawyers to deal with the matter of the FVRO.
On 21 December 2021, the Applicant's lawyer sent an email to the Applicant in which she stated, among other things:
(a)that BIL's lawyer (the Second Respondent) had stated in a phone call to her (i.e. the Applicant's lawyer) that she (i.e. BIL's lawyer) is friends with BIL and knows his family well; and
(b)it was her opinion that 'it would be inappropriate for [the Second Respondent] to represent BIL as she has a close personal relationship with him and can't maintain her professional independence'; and
(c)she had written to [the Second Respondent] asking that she confirm the nature of her relationship with BIL and his family.
On 22 December 2021, presumably in response to her lawyer's email of that same date, the Applicant sent an email to her lawyer in which she informed her that the Second Respondent had a very close friendship with BIL and his entire family (including H and FIL) and that BIL had referred her husband, H, to the Second Respondent in connection with their family law matters.
On 21 December 2021, the Applicant's lawyer sent an email to the Second Respondent in which she referred to a telephone conversation that had taken place between them earlier that same day in which she records that the Second Respondent had said that:
(a)BIL is her friend;
(b)she 'knows all the parties';
(c)the Applicant 'has issues with everyone in the … family'; and
(d)she would be serving the Applicant with a restraining order in relation to a separate matter.
In that same email, the Applicant's lawyer requested that the Second Respondent clarify the nature of the relationship with the parties and potential witness and to provide her response by close of business on 24 December 2021.
On or about 21 December 2021, the Second Respondent sent an email to the Applicant's lawyer in which she stated, among other things:
1.BIL had been her (i.e the Second Respondent's) own daughter's golf coach when she was younger;
2.She and FIL had previously belonged to the same golf club; and
3.She met BIL, H and FIL on a professional level.
On 7 January 2022, the Applicant's lawyer sent an email to the Second Respondent in which she stated, among other things, that the Applicant had made a formal complaint to the Legal Practice Board regarding the Second Respondent's 'relationship with the parties in the case'.
On 10 February 2022, the Magistrates Court made a Conduct Agreement Order (CAO) protecting the Applicant and her two children from BIL.
On 22 March 2022, the Second Respondent wrote to the Applicant. In that letter she referred to the FVRO and the CAO and advised that the Applicant was no longer welcome to attend FIL's property and that, if she did, FIL would:
(a)immediately take action to have her removed and charged; and
(b)seek his own restraining orders against her.
The complaint
The Applicant made a complaint about the conduct of the Second Respondent.[12] The matters complained of in the complaint were as follows:
1.the Second Respondent had lied about her personal close relationship with BIL and his family (Matter 1);
2.the Second Respondent acted in an aggressive, abusive and intimidating manner towards her (Matter 2); and
3.the Second Respondent blamed the Applicant and her children for everything on behalf of her client, BIL, (Matter 3).
[12] The Applicant's complaint is at page 3 of the First Respondent's Section 24 Bundle of Documents.
In the Review Application lodged on 22 August 2022, the Applicant appears to advance an additional matter, being that the Second Respondent sent a letter to her and her two children without having consent from her client, FIL, to do so (Matter 4).[13] As that matter was not part of the complaint made to the First Respondent, we do not have jurisdiction to deal with it on review. Accordingly, we do not deal with Matter 4 further in these reasons.
The First Respondent's reasons for dismissing the complaint
[13] Order 4 sought in the Review Application filed 22 August 2022.
The First Respondent's reasons for dismissing the complaint were set out in his letter dated 13 June 2022.[14] Matter 1 was dismissed pursuant to s 415(1)(b) of the LP Act on the basis that it was misconceived. Matters 2 and 3 were dismissed pursuant to s 415(1)(b) of the LP Act on the basis that they lacked substance.
The First Respondent's investigation into the complaint
[14] First Respondent's Book of Documents, page 1.
As we have set out above, the role of the Tribunal in determining a review is to step into the shoes of the original decision-maker and to make the correct and preferrable decision as at the date of the decision on the review. Accordingly, the role of the Tribunal on this review is to determine:
(a)whether the information in the complaint, together with the available evidence, gives rise to a reasonable suspicion that the Second Respondent's conduct constituted unsatisfactory professional conduct or professional misconduct; and
(b)whether further investigation is likely to uncover additional evidence which may alter the conclusion as to whether there is reasonable cause to suspect that the Second Respondent might be later found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct.[15]
[15] Chen and Law Complaints Officer [2022] WASAT 26.
Because the Tribunal is determining this matter de novo, the manner in which the First Respondent conducted its investigation and arrived at its decision is only relevant to the extent it might be concluded that further investigation is likely to uncover additional evidence which may alter the conclusion reached by the First Respondent. We therefore set out next the finding of facts relevant to that issue which we discerned from the documents.
On 29 March 2022, following notice of the complaint being given to her, the Second Respondent wrote to the Regulator Investigator at the Legal Profession Complaints Committee responding to the complaint. In her response she stated, amongst other things, that:
1.she promptly responded to the Applicant's lawyer's inquiry about her relationship with H, BIL and FIL;
2.she is friends with BIL and FIL through their mutual interest in golf and that she had met H on one occasion when he accompanied FIL to her office; and
3.upon being told by the Applicant's lawyer on 7 January 2022 that the Applicant was unwilling to settle the FVRO matter by way of an undertaking, she (the Second Respondent) took steps to transfer the matter to a colleague.
That was the extent of the investigation conducted by the First Respondent.
Resolution
We have concluded that the correct and preferable decision on the review is to affirm the decision of the First Respondent for the following reasons.
Matter 1
In her Review Application, the Applicant says that the Second Respondent lied to her about her relationship with H, BIL, FIL and their family. In the complaint which she made to the Legal Profession Complaints Committee, the Applicant made the same allegation. She asserted that the relationship is a 'close personal relationship'. She alleged that the Second Respondent had been invited to and attended FIL's birthday party and that the Second Respondent and members of her family attended events with FIL and his family, including a dinner at a restaurant on 21 December 2012 which the Applicant also attended.
In her complaint, the Applicant also asserted that the Second Respondent's acting for BIL in those circumstances was unprofessional conduct and disgraceful and dishonourable. That aspect of her original complaint is not persisted with in the Review Application. Nevertheless, for the sake of completeness, and in fairness to the Applicant, we shall deal with it below.
From the documents provided, we find that the Second Respondent responded promptly to the Applicant's lawyer's inquiries as to the nature of the relationship between her and BIL, FIL and H, and set out her explanation of the nature and extent of the relationship.
While the Applicant alleges that the Second Respondent was not honest about the nature of the relationship, there is no material before us from which we could find any suggestion that her characterisation of the relationship was less than honest. The Applicant had an opportunity to provide the First Respondent with any documentary material that would support her assertion that the Second Respondent's relationship with her estranged husband's family was closer than she had acknowledged while he was investigating her complaint. None was provided. She also had ample opportunity to provide any such evidence to the Tribunal, but she failed to do so.
All we have before us is an allegation by the Applicant that the practitioner lied about her relationship with H, BIL and F and an assertion from the Second Respondent that what she said to the Applicant's lawyer about that relationship was correct. While no party bears the onus in a review application of this kind, on the basis of the material before us we have no basis for preferring one assertion over another. The Applicant provided no material to support her assertions. We find that there is nothing in the information in the complaint, together with the available material, that would give rise to a reasonable suspicion that the practitioner's conduct constituted unsatisfactory professional conduct or professional misconduct. Further, given the opportunities which have been afforded to the Applicant to produce material in support of her allegations, which she has not taken up, we conclude that there is no reason to think that any further inquiries would be likely to uncover additional evidence to alter that conclusion.
To the extent that the Applicant's complaint might have been that the Second Respondent should not have acted for BIL or FIL because she had a personal relationship with them, even one of the kind she asserts existed rather than that acknowledged by the Second Respondent, the Applicant's complaint is misconceived. There was nothing in the Legal Profession Conduct Rules 2010 (WA) (which applied at the time)[16] that prevented a practitioner from acting for someone with whom they have a personal relationship, even a close personal relationship. A practitioner who acts in such a circumstance must, however, be careful to ensure that the relationship does not prevent them from complying with their paramount duty to the court and the administration of justice. Given that there is no general rule of conduct that precludes a practitioner from acting for a friend or family member, any complaint founded on the basis that the Second Respondent should not have done so is misconceived.
[16] Since repealed.
We find that to the extent that Matter 1 involves the allegation that the Second Respondent lied, it is lacking in substance. We find that, to the extent that Matter 1 involved any allegation that the Second Respondent breached her professional obligations and therefore engaged in conduct that would constitute unsatisfactory professional conduct or professional misconduct, it is misconceived.
Matters 2 and 3
Having reviewed the correspondence between the Second Respondent and the Applicant's lawyer, we cannot find that the Second Respondent's written communications were aggressive, intimidating or abusive, or blaming of the Applicant and her children.
If the Applicant meant that the Second Respondent's communications, other than written communications, were abusive, intimidating and aggressive, neither the First Respondent nor the Tribunal were provided with any details of any such communications.
Despite having been given an opportunity to do so, the Applicant has provided no material at all to support her assertion that the Second Respondent blamed her and her children for everything.
Having regard to the information in the complaint, taken together with the available material, we have come to the conclusion that there is nothing that would give rise to a reasonable suspicion that the practitioner's conduct constituted unsatisfactory professional conduct or professional misconduct.[17] Further, given the opportunities which have been afforded to the Applicant to produce material in support of her allegations, which she has not taken up, we conclude that there is no reason to think that any further inquiries would be likely to uncover additional evidence that would alter that conclusion.
[17] The term 'unsatisfactory professional conduct' is defined in s 402 of the LP Act and 'professional misconduct' is defined in s 403 of the LP Act. Conduct capable of constituting unsatisfactory professional conduct or professional misconduct is identified in s 404 of the LP Act.
We find that Matters 2 and 3 were lacking in substance.
Conclusion and orders
We have determined that the correct and preferable decision on review is to affirm the First Respondent's decision to dismiss the complaint.
To give effect to that decision we will make the following order:
1.The First Respondent's decision made on 13 June 2022 is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS
Associate to Judge Glancy
18 AUGUST 2023
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