Gandini v Legal Practitioners Complaints Committee
[2005] WASCA 214
•24 OCTOBER 2005
GANDINI -v- LEGAL PRACTITIONERS COMPLAINTS COMMITTEE [2005] WASCA 214
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 214 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:113/2003 | 24 OCTOBER 2005 | |
| Coram: | PULLIN JA MURRAY AJA | 24/10/05 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal struck out | ||
| B | |||
| PDF Version |
| Parties: | LEONARD GANDINI LEGAL PRACTITIONERS COMPLAINTS COMMITTEE |
Catchwords: | Practice and procedure Application to strike out appeal Application to extend time Turns on own facts |
Legislation: | Nil |
Case References: | D A Christie Pty Ltd v Baker (1996) 2 VR 582 Gee v General Medical Council [1987] 1 WLR 564 Jackamarra v Krakouer (1998) 195 CLR 516 Nominal Defendant v Manning (2000) 50 NSWLR 139 Peatfield v General Medical Council [1986] 1 WLR 243 Pioneer Concrete (WA) Pty Ltd v Elwood [2005] WASCA 48 Todd v Novotny [2000] WASC 308 Woods v Legal Ombudsman [2004] VSCA 247 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GANDINI -v- LEGAL PRACTITIONERS COMPLAINTS COMMITTEE [2005] WASCA 214 CORAM : PULLIN JA
- MURRAY AJA
- Applicant
AND
LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
Respondent
ON APPEAL FROM:
Jurisdiction : LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL
Coram : HON B W ROWLAND QC, MR R J MEADOWS QC, MR R E COCK QC & MR J K DUNCAN
File No : R 8A of 2003
Catchwords:
Practice and procedure - Application to strike out appeal - Application to extend time - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Appeal struck out
Category: B
Representation:
Counsel:
Applicant : Mr S Melville
Respondent : Mr M H Zilko SC
Solicitors:
Applicant : Chapmans
Respondent : Legal Practitioners Complaints Committee
Case(s) referred to in judgment(s):
D A Christie Pty Ltd v Baker (1996) 2 VR 582
Gee v General Medical Council [1987] 1 WLR 564
Jackamarra v Krakouer (1998) 195 CLR 516
Nominal Defendant v Manning (2000) 50 NSWLR 139
Peatfield v General Medical Council [1986] 1 WLR 243
Pioneer Concrete (WA) Pty Ltd v Elwood [2005] WASCA 48
Todd v Novotny [2000] WASC 308
Woods v Legal Ombudsman [2004] VSCA 247
Case(s) also cited:
Nil
(Page 3)
1 PULLIN JA: There are two applications before the court. The first is a notice of motion for dismissal of the appeal for lack of prosecution, this being an application by the respondent. That was filed on 20 April 2005. The second is an application filed by the appellant being a notice of motion to extend time to enter the appeal for hearing pursuant to O 63 r 7(1).
2 It seems appropriate to first deal with the application to extend time. The history of the matter is that a complaint was brought by the Legal Practitioners Complaints Committee about the conduct of the appellant in his dealing with a member of the workers compensation authority, the complaint setting out an allegation that there was unprofessional conduct revealed in a series of correspondence which was set out in the particulars.
3 The appellant in these proceedings applied to the Tribunal hearing the reference, asking for an order striking out the reference on the basis that it was bad for duplicity. That application was dismissed and an appeal was instituted to this Court on 11 August 2003.
4 The Rules require the appeal to be entered for hearing in the time specified in the Rules. The Court was told by counsel for the appellant that that time expired early in November 2003. The appeal was not entered for hearing as required by the Rules.
5 As a result an application was made to the Master to extend time in which to enter the appeal for hearing. That application was heard by the Master and he gave reasons for his decision on 1 February 2005. The Master dismissed the application for an extension of time.
6 Nothing then happened until the application by the respondent to strike out on the date that I have already indicated, and that was then followed by this application to extend time. There is no doubt, as the appellant suggests in his outline of submissions, that the discretion to extend time will be more readily granted in a case like this where an appeal has already been instituted. See Jackamarra v Krakouer (1998) 195 CLR 516. The Court, of course, does have a general discretion, but if it is concerned with procedural steps rather than the institution of the appeal the discretion may be more readily exercised. In this case there are a number of factors which indicate that the discretion should not be exercised. Those factors include the merits of the appeal itself.
7 As to the merits of the appeal itself, there is no statutory provision which requires a reference or complaint to contain only one matter of complaint. See Gee v General Medical Council [1987] 1 WLR 564 and
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- Peatfield v General Medical Council [1986] 1 WLR 243 and Woods v Legal Ombudsman [2004] VSCA 247, which indicate that in this type of case (professional misconduct cases, or unprofessional conduct cases) the general rule against duplicity is not to be rigidly applied. That is not to say, of course, that where there is any unfairness in the form of the complaint that there should not be separate hearings.
8 The complaint indicates a course of conduct which, when taken in its context or viewed as a single series of events, would justify a finding that there was unprofessional conduct; that is not, of course, to finally judge the matter because it still has to be dealt with by SAT.
9 So, on the face of it the merits of the appeal that have been instituted are weak. That is a relevant consideration in deciding whether or not there should be an extension of time.
10 A second factor is the question of prejudice. There is a prejudice involved in delaying complaints of this kind because it is important and in the public interest that allegations of unprofessional conduct are dealt with as promptly as possible. I do not say that is a major factor; for my part I would not decide the matter on that basis alone, but it is a factor which can be taken into account by this Court.
11 There is another factor, and that is that this is a second application for an extension of time. The first application was dealt with by the Master; the application was dismissed, and there has been no appeal instituted against that decision.
12 In Pioneer Concrete (WA) Pty Ltd v Elwood [2005] WASCA 48, this Court referred to the New South Wales authority of Nominal Defendant v Manning (2000) 50 NSWLR 139 and a Victorian case, D A Christie Pty Ltd v Baker (1996) 2 VR 582, which discussed the question about whether a party who has failed to obtain an interlocutory order is precluded from bringing a second application. There is debate about whether or not it is an abuse of process to bring the second application, or whether the Court still retains a discretion.
13 All of the authorities are gathered together and discussed in Todd v Novotny [2000] WASC 308 by Parker J. It is clear enough that there is at least a discretion not to allow a second application to be made, that is, a second interlocutory application, and in Manning's case Heydon JA said:
"Nothing in the reasoning … [and he there set out the earlier authorities] is intended to encourage litigants to avoid putting
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- their best cases forward in any interlocutory application … [A] litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self created risks of an adverse exercise of judicial discretion. The real evils to which Hayne JA referred to in D A Christie Pty Ltd v Baker at 602 - 3 - the risk of conflicting decisions, the unnecessary vexing of respondents, judge shopping and the diminution of certainty in the conduct by respondents of their affairs and others damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily are evils which each Court in its individual discretion will rightly strain to avoid".
14 Taking all those factors into account, it is my opinion that the application for an extension of time should be dismissed, and it follows, therefore, that the application for a striking-out order should be granted. The matter should be struck out because there is no basis on which the matter can now proceed. I would also take into account the lack of merit in the appeal. So, for those reasons I would dismiss the application for an extension of time and allow the application to dismiss the appeal.
15 MURRAY AJA: I agree, and for the reasons given by his Honour the presiding Judge, it seems to me that the appropriate orders are that the application for the extension of time should be dismissed and that the appeal should be dismissed for want of prosecution.
16 Before I part with the case, I just want to say one further thing in relation to the considerations relevant to the decision of these applications and do so by reference to the High Court's decision in Jackamarra v Krakouer to which his Honour also has referred. The point I wish to make concerns this question of the consideration of the merits of the appeal in relation to an application for extension of time to take a procedural step within the appeal already instituted.
17 In their joint judgment, two members of the majority, Brennan CJ and McHugh J, made it clear that in relation to such an application the appropriate consideration of the merits of the appeal was rather limited and confined to circumstances where the matter could be seen by the court hearing the application to be so devoid of merit that it would be futile to extend time.
18 In rather more extended terms, that was also the view expressed by the other member of the majority, Kirby J, but his Honour also added the
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- reminder that it is for the parties seeking the indulgence to persuade the court to grant the extension of time, and there was no falling away from the proposition that one of the factors in that regard was not only matters affecting the lapse of time, but the consideration of the merits. As to that, in part of [66] at 542 - 543 of his Honour's reasons, his Honour said the distinction between an application which was concerned to extend time for initiating an appeal and an application to take a procedural step within an appeal already initiated, was important.
19 In the latter case the scope for review of the merits is necessarily more limited. The main object of the scrutiny is to obviate a hearing which would clearly be futile or to reinforce a preliminary view that a time default should be cured because of the apparent merits or arguability of the matter.
20 In this case it seems to me that the point of the appeal, the way in which the complaint before the Legal Practitioners Disciplinary Tribunal was formulated made it bad for duplicity, is the sort of consideration which one can see is without merit without reference to matters of evidence, but having regard only to the way in which the complaint is formulated.
21 One can determine whether or not it has merit upon that basis. It seems to me that, having regard to the authorities to which Pullin JA has referred, the law in this regard is clear. This is not a case in which the complaint in the form made before the Tribunal could be struck down on the grounds of duplicity. As a matter of law, it seems to me to be clear that the essence and the gravamen of the appeal raised a matter which was without merit and so for that reason, in addition to those expressed by his Honour, I would join in the orders he proposes.
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