Gandini v Legal Profession Complaints Committee
[2013] WASCA 168 (S)
•19 NOVEMBER 2013
GANDINI -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2013] WASCA 168 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 168 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:59/2011 | ON THE PAPERS | |
| Coram: | McLURE P MURPHY JA MAZZA JA | 19/11/13 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | CACV 59 of 2011 Appeal allowed in part The Committee pay 75% of the practitioner's costs of the appeal The practitioner pay 75% of the Committee's costs of the tribunal proceedings CACV 151 of 2011 Appeal and cross-appeal dismissed No order as to costs | ||
| B | |||
| PDF Version |
| Parties: | LEONARD GANDINI LEGAL PROFESSION COMPLAINTS COMMITTEE |
Catchwords: | Practice and procedure Final orders Costs |
Legislation: | Nil |
Case References: | A Solicitor v Council of The Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 Gandini v Legal Profession Complaints Committee [2013] WASCA 168 Legal Practitioners Complaints Committee and Fleming [2006] WASAT 352 Legal Profession Complaints Committee v in de Braekt [2013] WASC 124 Legal Profession Complaints Committee v Leask [2011] WASC 310 McKay v Commissioner of Main Roads [2013] WASCA 135 (S) Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GANDINI -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2013] WASCA 168 (S) CORAM : McLURE P
- MURPHY JA
MAZZA JA
- Appellant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
Respondent
- Appellant
AND
LEONARD GANDINI
Respondent
ON APPEAL FROM:
For File No : CACV 59 of 2011
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUDGE T SHARP (DEPUTY PRESIDENT)
- MR M ODES QC (SENIOR SESSIONAL MEMBER)
MS F CHILD (MEMBER)
Citation : LEGAL PROFESSION COMPLAINTS COMMITTEE and GANDINI [2011] WASAT 86
File No : VR 107 of 2010
For File No : CACV 151 of 2011Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUDGE T SHARP (DEPUTY PRESIDENT)
- MR M ODES QC (SENIOR SESSIONAL MEMBER)
MS F CHILD (MEMBER)
Citation : LEGAL PROFESSION COMPLAINTS COMMITTEE and GANDINI [2011] WASAT 86 (S)
File No : VR 107 of 2010
Catchwords:
Practice and procedure - Final orders - Costs
Legislation:
Nil
Result:
CACV 59 of 2011
Appeal allowed in part
The Committee pay 75% of the practitioner's costs of the appeal
The practitioner pay 75% of the Committee's costs of the tribunal proceedings
CACV 151 of 2011
Appeal and cross-appeal dismissed
No order as to costs
Category: B
Representation:
CACV 59 of 2011
Counsel:
Appellant : Mr L M Levy SC
Respondent : Ms P E Cahill SC & Ms P Le Miere
Solicitors:
Appellant : Butcher Paull & Calder
Respondent : Legal Profession Complaints Committee
CACV 151 of 2011
Counsel:
Appellant : Ms P E Cahill SC & Ms P Le Miere
Respondent : Mr L M Levy SC
Solicitors:
Appellant : Legal Profession Complaints Committee
Respondent : Butcher Paull & Calder
Case(s) referred to in judgment(s):
A Solicitor v Council of The Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253
Gandini v Legal Profession Complaints Committee [2013] WASCA 168
Legal Practitioners Complaints Committee and Fleming [2006] WASAT 352
Legal Profession Complaints Committee v in de Braekt [2013] WASC 124
Legal Profession Complaints Committee v Leask [2011] WASC 310
McKay v Commissioner of Main Roads [2013] WASCA 135 (S)
Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145
Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202
- REASONS OF THE COURT:
Introduction
1 These reasons deal with outstanding final orders in appeal CACV 59 of 2011 (the main appeal) and the disposition of appeal CACV 151 of 2011 (the penalty appeal). These reasons should be read in conjunction with the court's reasons in Gandini v Legal Profession Complaints Committee [2013] WASCA 168.
2 The appeals relate to proceedings before the State Administrative Tribunal (the Tribunal) concerning the conduct of the appellant as a legal practitioner in relation to certain litigation in the Supreme Court in 2004. The respondent (the Committee) had alleged that the appellant (the practitioner) was guilty of professional misconduct in that:
(i) the practitioner's conduct involved a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian Legal Practitioner with respect to an interlocutory hearing held on 9 August 2004;
(ii) the practitioner made representations to the Supreme Court at a hearing on 17 November 2004 that were intentionally, alternatively, recklessly misleading; and
(iii) the practitioner made representations to the solicitors on the other side in letters dated 17 November 2004 and 2 December 2004 that were intentionally misleading.
3 The Tribunal found the practitioner guilty of unsatisfactory professional conduct in respect of the first complaint. That finding was not challenged in the main appeal to this court. The Tribunal also found the practitioner guilty of professional misconduct with respect to the second and third complaints. These disciplinary findings became the subject of orders by the Tribunal on 8 June 2011. They were challenged by the practitioner in the main appeal.
4 After the Tribunal made these findings and orders, the practitioner did not renew his practising certificate for the year commencing 1 July 2011.
5 After receiving submissions on penalty, the Tribunal on 24 November 2011 ordered, by way of a single overall penalty for each of the three findings, that the practitioner not be granted a local practising certificate for a period of 18 months commencing from the date of the order. (That period expired by about 24 May 2013.)
6 The Tribunal also ordered that the practitioner pay the Committee's costs fixed at $23,832.50.
7 Following the making of the above orders, the Committee commenced the penalty appeal, in which it alleged, broadly speaking, that the Tribunal's orders relating to penalty were inadequate and that the Tribunal should have referred the matter to the Supreme Court with a recommendation that the practitioner be struck from the local roll. In the penalty appeal, the practitioner cross-appealed, alleging, in effect, that the Tribunal made certain errors of law, including that the orders as to penalty were outside a sound discretionary range in that they were unnecessarily restrictive on his ability to practise.
The main appeal
8 There were four grounds of appeal. Ground 1 was abandoned. Grounds 2 and 3 related to the Tribunal's finding that the appellant had misled the court. Ground 4 challenged the Tribunal's finding that the appellant had misled the solicitors on the other side in the Supreme Court proceedings. This court published reasons on 1 August 2013: Gandini v Legal Profession Complaints Committee (the 'court's reasons in the main appeal'). The court allowed grounds 2 and 3, and dismissed ground 4.
9 Ground 1, which was abandoned, was to the effect that the Tribunal erred by concluding that the practitioner did not properly prepare for the hearing before the Tribunal and by erroneously taking that into account in determining the Committee's complaints against the practitioner. In written submissions, the practitioner contended that the Tribunal's comments were 'significantly prejudicial' and 'fatally affected' the Tribunal's subsequent reasoning. It was said that the Tribunal erred in fact in this regard and ignored important evidence. The practitioner set out in some detail what he said was the 'true position'.
10 In the main appeal, the practitioner sought orders that the appeal be allowed, that the Tribunal's orders with respect to professional misconduct be 'quashed' and that the Committee's complaints in that regard be 'dismissed', and that the Committee pay both the practitioner's costs of the appeal, and the practitioner's costs of the proceedings before the Tribunal.
The penalty appeal
11 In the penalty appeal the Committee alleged, in effect, that based on the Tribunal's findings, the Tribunal failed to consider whether the practitioner was a fit and proper person to remain a legal practitioner, and erred in concluding that it was not appropriate to issue a report to the Supreme Court with a recommendation that the practitioner be struck from the local roll.
12 In the cross-appeal, in the 'orders wanted' by the practitioner, he sought an order setting aside the orders of the Tribunal dated 24 November 2011 and that in lieu thereof he asked that orders be made to the following effect:
• with respect to the finding of unsatisfactory professional conduct - that the practitioner be fined the sum of $1,500;
• with respect to the finding of professional misconduct of misleading the court - that the practitioner not be granted a local practising certificate for three months; and
• with respect to the finding of professional misconduct of misleading the solicitors on the other side - that the practitioner not be granted a local practising certificate for a further one month beyond the three months referred to above.
13 In the alternative, the practitioner contended that a fine of $10,000 would have been appropriate for all three findings and, in the further alternative, that the appropriate order would have been a global order to the effect that the practitioner not apply for a practising certificate for a total period of four months.
14 The hearing before this court on 9 April 2013 was essentially devoted to the main appeal. There was one aspect of construction raised by the cross-appeal in the penalty appeal which senior counsel for the appellant abandoned at the hearing (ts 67).
Orders sought following court's reasons in the main appeal
15 As a result of the court's reasons in the main appeal, the practitioner seeks orders in the main appeal in these terms:
1. The application for leave to appeal the decision of the State Administrative Tribunal made on 8 June 2011 in respect of ground 4 is dismissed.
2. The appellant have leave to appeal the decision of the State Administrative Tribunal made on 8 June 2011 in respect of grounds 2 and 3 and the appeal be allowed.
3. Order 2 of the State Administrative Tribunal made on 8 June 2011 be set aside and in lieu thereof there be an order that complaint (ii) of the respondent's application filed 15 June 2010 be dismissed.
4. The respondent pay the appellant's costs to be taxed.
16 Orders to the effect of the first two of these proposed orders were made by consent on 1 August 2013, and it is unnecessary to deal with them further here. Proposed order 3 is not objected to by the Committee and appears appropriate. The Committee resists proposed order 4 and contends that there should be no order as to costs in the main appeal.
17 In the penalty appeal, the practitioner contends that:
(a) with respect to the finding of unsatisfactory professional conduct - as at 24 November 2011 an appropriate order would have been a reprimand, alternatively, a reprimand plus a fine of $2,000;
(b) with respect to misleading the solicitors on the other side - as at 24 November 2011 an appropriate order would have been a fine of $7,500 - $10,000,
but as the practitioner has already in fact been precluded from working for 18 months, no penalty should now be imposed.
18 The practitioner also sought an order that the practitioner should only pay half of the Committee's costs in the proceedings before the Tribunal, being $11,916.25, rather than the costs order imposed by the Tribunal of $23,832.50.
19 The practitioner in the penalty appeal also contends that he has been 'successful' on the issue of penalty and that the Committee should pay his costs of that appeal.
20 The Committee contends that if there is to be any order for costs in respect of the proceedings before the Tribunal, they should be dealt with as part of the orders in the main appeal.
21 In the penalty appeal, the Committee seeks an order granting leave to discontinue the penalty appeal and dismissing the cross-appeal.
Parties' arguments
Penalty
22 In relation to the penalty appeal, the Committee contends that there is no basis for the court to substitute or vary the penalty determined by the Tribunal. The Committee contends that the cross-appeal in the penalty appeal only concerned the correctness of the Tribunal's determination on penalty in respect of the conduct as found by the Tribunal. In any event, the Committee asserts that the period of suspension of 18 months was within the range of penalties properly available to the Tribunal in respect of the conduct as ultimately found by this court. In this regard, the Committee refers to the Tribunal's finding that the practitioner's conduct with respect to the finding of unprofessional conduct was relatively serious. It also emphasises that with respect to the misleading of the solicitors on the other side, the practitioner's conduct was dishonest, and that it was sustained between the letters of 17 November and 2 December 2004. The Committee also contends that there is an absence of any insight or contrition by the appellant.
23 The practitioner denies the Committee's contentions. He says that the findings against him occurred six years post-admission, that he is now more experienced, and that there had been no other findings of unsatisfactory professional conduct or professional misconduct against him. He also says that he was acting pro bono in the litigation at the relevant time, although the Committee said that there was evidence to the contrary at the hearing before the Tribunal. He says that the finding of unprofessional conduct related to competence only and that a fine would have been appropriate in relation to the subsisting finding of professional misconduct.
24 Neither party referred to any superior court authorities in support of their arguments, although the appellant referred to a decision of the State Administrative Tribunal in Legal Practitioners Complaints Committee and Fleming [2006] WASAT 352. Nor was there any up-to-date information about the character or activities of the appellant.
Costs of main appeal
25 The practitioner submits that he is entitled to the costs of the main appeal on the basis of the principles outlined in McKay v Commissioner of Main Roads [2013] WASCA 135 (S), and having regard to the following alleged matters:
(a) he was predominantly successful in that the Tribunal's findings to the effect that he had misled the court were overturned;
(b) there was some overlap between the issues, which all related to the conduct of civil litigation in the Supreme Court of Western Australia; and
(c) it is not likely that the inclusion of grounds 1 and 4 significantly increased the costs of the appeal.
26 The Committee submits that there should be no order as to costs in the main appeal. The Committee also relies on the McKay costs decision and submits that there should be no order as to costs having regard to:
(a) the history of the appeal;
(b) the manner in which the appeal was progressed; and
(c) the fact that neither party could be characterised as the 'successful party'.
27 In relation to the history of the appeal, the Committee alleges that there were numerous occasions between the filing of the appeal notice on 9 June 2011, and the appellant finally filing and serving five copies of the appeal books by 26 January 2013, in which the appellant's failures to comply with orders of the court generally increased the costs of the appeal.
28 In relation to the contention that neither party was the 'successful party', the Committee contends that it was only advised that ground 1 would be abandoned the day before the hearing, and that the factual issues that were canvassed in the appeal with respect to grounds 2 and 3 were also directly relevant to ground 4.
29 In the alternative, the Committee contends that having regard to the Committee's success on ground 4, the overlap of issues between grounds 2, 3 and 4 and the practitioner's abandonment of ground 1 at a late stage, the court should order that:
(a) each party should be awarded half of their costs of the hearing;
(b) with respect to the getting up of the appeal, each party should be entitled to half their costs since the filing of the appellant's re-amended case; and
(c) having regard to the interlocutory history of the matter, the Committee should be awarded all of its costs prior to that time.
30 In reply to the Committee's submissions with respect to the procedural history of the matter, the appellant contends, in effect, that a number of the alleged delays were not caused by the appellant; to the extent that the appellant's conduct did occasion delays, it was largely due to the fact that he did not always have the benefit of legal representation; and that any costs issues which are in dispute in connection with the interlocutory history of the matter can be dealt with by the taxing officer.
Costs of Tribunal proceedings
31 As to the costs of the proceedings before the Tribunal, the Committee contends, in effect, that it was, ultimately, substantially successful in the Tribunal (on two out of three grounds), that the majority of the time at the hearing before the Tribunal was devoted to issues other than the issue of misleading the court, and that the underlying matters relevant to the allegation of misleading the court had to be addressed in any event in relation to the other matters on which the Committee was successful, especially on the issue of misleading the solicitors. As to the time spent in the hearing before the Tribunal, the Committee contends, in effect, that out of the three days, the first day was spent on submissions with respect to admissibility of documents and the appellant's failure to comply with the Tribunal's orders regarding the filing of witness statements, and the cross-examination of a witness called by the Committee concerning the scope of the appellant's retainer - which was relevant to all three allegations, but particularly complaint (i); that the majority of the second day was spent on matters relating to complaint (i); and that the third day was essentially devoted to cross-examination in relation to the issue of misleading the court and misleading the other side, and in closing addresses.
32 In response, the practitioner says that on a proper analysis of the transcript, most of the time taken in the proceedings before the Tribunal was not spent on matters other than the allegation of misleading the court, and that the Tribunal's reasons reflect this in that in the Tribunal's reasons, complaints (i) and (iii) occupy about the same number of pages of the judgment as the Tribunal's reasons in relation to complaint (ii).
Disposition
33 It is convenient to deal with the question of final orders in the penalty appeal first. The penalty appeal was a separate appeal in which the Committee (in the appeal) and the practitioner (in the cross-appeal) contended in effect that the Tribunal erred in relation to the imposition of a period of non-registration of 18 months, in relation to all three disciplinary findings.
34 As it transpired, the main appeal was allowed in part. Thus, this court has not had to deal with the penalty appeal in which the parties' respective positions were predicated upon the Tribunal's original findings. There is no suggestion that either party acted unreasonably in commencing and prosecuting the appeal and the cross-appeal. In these circumstances the appropriate order is to allow the Committee to discontinue the appeal and to dismiss the cross-appeal, and to make no order as to costs. See Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622; McKay [14] - [16].
35 The effect of the practitioner's partial success in the main appeal is that the practitioner remains having been found guilty of:
(a) unsatisfactory conduct involving a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence with respect to an interlocutory hearing in 2004;
(b) professional misconduct by intentionally misleading solicitors on the other side on two occasions in respect of litigation in which the practitioner was acting in 2004.
36 Integrity and honesty are essential characteristics expected of a practitioner, and accordingly the court has generally taken a very serious approach when dealing with dishonesty by a practitioner: Legal Profession Complaints Committee v in de Braekt [2013] WASC 124 [26]; Legal Profession Complaints Committee v Leask [2011] WASC 310 [57]; The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 [58]. In Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 [61], where the practitioner was suspended for three months for misleading the court, the court said that for a practitioner in the course of his or her practice, intentionally to mislead anyone is a 'serious breach' of the practitioner's professional duty.
37 Bearing in mind the practitioner's dishonesty, the fact that it occurred twice over the period 17 November 2004 to 2 December 2004, and the apparent absence of any insight or remorse, it would be open to order some period of suspension or non-registration in a case such as this. However, 18 months is a substantial period for an order of that kind, and even if it also covered the count of unsatisfactory professional conduct, a period of that length would not be appropriate having regard to the fact that the conduct stemmed from earlier ineptitude rather than being motivated by personal gain, the relatively limited experience, post-admission, of the practitioner at the time of the events in question (particularly relevant to complaint (i)), and the absence of any history of other misconduct. Had the matter been determined closer to the events in question rather than in 2011, consideration might also have been given to the imposition of conditions or restrictions on his right to practise, particularly involving some kind of supervision.
38 The period of 18 months ordered by the Tribunal has now passed. The events in question occurred around nine years ago. This court has no up to date information about the practitioner's character or his activities over the period that he has been off the roll of practitioners. It appears that he remains off the roll. Both parties submit that no further or additional penalty would be appropriate at this point. That submission is correct. In the particular circumstances of this case, order 1 of the Tribunal's orders of 24 November 2011 imposing the 18 month period of non-registration should be set aside, but without setting any fresh penalty. An approach of that kind was adopted in A Solicitor v Council of The Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 [40].
39 In relation to the question of costs in the proceedings before the Tribunal, the Committee's submissions referred to earlier may generally, although not entirely, be accepted. The time spent before the Tribunal was broadly as submitted by the Committee, and there was considerable evidentiary overlap between the issues. Nevertheless, the allegation of misleading the court was an important and separate complaint to which, it may be inferred, material costs were attributable separate from the costs incurred with respect to the other allegations. In all the circumstances, an appropriate order would be that the practitioner pay 75% of the Committee's costs in the proceedings before the Tribunal, ie, in the sum of $17,874.37.
40 With respect to the costs of the appeal, taking into account all the parties' arguments, the following considerations seem to be the most material. First, the practitioner succeeded to a considerable degree. Objectively speaking, the finding that he had intentionally misled the court was an extremely serious finding and he succeeded in overturning that finding. Secondly, whilst the Tribunal's findings as to making misrepresentations to the solicitors on the other side raised a number of discrete considerations, the disposition of that issue nevertheless required a proper understanding of the underlying material which was relevant to the issue of misleading the court on which the appellant succeeded. Thirdly, there was an unsatisfactory interlocutory history leading up to the hearing of the appeal for which the appellant must take some responsibility, notwithstanding that he lacked legal representation at various times. Fourthly, ground 1 itself raised discrete issues and that ground was only withdrawn on the day prior to the hearing.
41 The appropriate costs order in the main appeal in all the circumstances is that the respondent pay 75% of the appellant's costs.
Conclusion
Main appeal
42 The following orders should be made in the main appeal (CACV 59 of 2011):
1. Order 2 of the orders of the State Administrative Tribunal in VR 107 of 2010 made 8 June 2011, be set aside and in lieu thereof there be an order that complaint (ii) of the applicant's (Legal Profession Complaints Committee's) application dated 15 June 2010 be dismissed.
2. Order 1 of the orders of the State Administrative Tribunal in VR 107 of 2010 made 24 November 2011, be set aside.
3. Order 2 of the orders of the State Administrative Tribunal in VR 107 of 2010 made 24 November 2011, be set aside and in lieu thereof there be an order that the respondent (Leonard Gandini) do pay the applicant's (Legal Profession Complaints Committee's) costs fixed at $17,874.37.
4. The respondent do pay 75% of the appellant's costs of the appeal to be taxed.
Penalty appeal
43 In the penalty appeal (CACV 151 of 2011) the orders should be:
1. The appellant have leave to discontinue the appeal.
2. The respondent's cross-appeal be dismissed.
3. There be no order as to costs.
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