Gandini v Legal Profession Complaints Committee
[2011] WASCA 180
•4 AUGUST 2011
GANDINI -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2011] WASCA 180
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 180 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:62/2011 | 4 AUGUST 2011 | |
| Coram: | PULLIN JA | 4/08/11 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | LEONARD GANDINI LEGAL PROFESSION COMPLAINTS COMMITTEE |
Catchwords: | Practice and procedure Application for stay of proceedings in State Administrative Tribunal Turns on own facts |
Legislation: | Nil |
Case References: | Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 Legal Profession Complaints Committee v Gandini [2011] WASAT 86 Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GANDINI -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2011] WASCA 180 CORAM : PULLIN JA HEARD : 4 AUGUST 2011 DELIVERED : 4 AUGUST 2011 FILE NO/S : CACV 62 of 2011 BETWEEN : LEONARD GANDINI
- Appellant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUDGE SHARP
File No : VR 107 of 2010
Catchwords:
Practice and procedure - Application for stay of proceedings in State Administrative Tribunal - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : Mr M Cuomo
Respondent : Ms P Cahill
Solicitors:
Appellant : In person
Respondent : Legal Profession Complaints Committee
Case(s) referred to in judgment(s):
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Legal Profession Complaints Committee v Gandini [2011] WASAT 86
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
(Page 3)
1 PULLIN JA: This is an application for a stay of proceedings in the State Administrative Tribunal (SAT) pending appeal. The Legal Profession Complaints Committee contended that Mr Gandini had been guilty of professional misconduct. Those proceedings were conducted in SAT in proceedings entitled VR 107 of 2010.
2 The case was heard in March of 2011 and after SAT had reserved its decision, Mr Gandini made an application asking Judge Sharp, who had presided, to disqualify himself on the basis of perceived bias. The application was heard on 2 June 2011. Judge Sharp had sat on another matter in SAT concerning alleged misconduct by another practitioner in proceedings VR 182 of 2010 in which the conduct of Mr Gandini as a solicitor was referred to in evidence. Mr Gandini was not a party, he was not called as a witness and he was not represented but the evidence about the conduct of Mr Gandini was conduct which may have justified criticism.
3 Judge Sharp dismissed the application to disqualify himself. On 8 June 2011, SAT handed down its decision in the proceedings against Mr Gandini - that is, VR 107 of 2010 - and he was found guilty of unsatisfactory professional conduct and professional misconduct: Legal Profession Complaints Committee v Gandini [2011] WASAT 86. Mr Gandini filed an appeal notice against that decision; that is appeal CACV 59 of 2011. That appeal notice was filed on 9 June 2011.
4 The proceedings in SAT were adjourned on the basis that SAT would subsequently decide penalty. As yet there has been no hearing to determine penalty. On 17 June 2011 Mr Gandini filed another appeal notice CACV 62 of 2011 concerning Judge Sharp's decision on 2 June 2011 refusing to disqualify himself. That is an interlocutory appeal.
5 I pointed out to Mr Cuomo, counsel appearing for Mr Gandini, that it was pointless having two appeals (ts 2). I also pointed out that appeal CACV 62 of 2011 is one that Mr Gandini might consider discontinuing, so the grounds of appeal in this appeal could be included as grounds for setting aside the main decision, that is, they would form grounds in CACV 59 of 2011. If that happened, then those grounds would still require a grant of leave but if leave were granted and the appeal upheld, then it could potentially lead to a setting aside of the decision made by SAT on 8 June 2011. See, for example, Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288.
(Page 4)
6 In the meantime, Mr Gandini has made this application seeking a stay of the decision in the interlocutory appeal; that is, in CACV 62 of 2011. He is seeking to prevent SAT determining penalty until the appeal is heard. Mr Cuomo has made it clear that the only concern that Mr Gandini has is about publicity which might follow the imposition of a penalty and that might damage his reputation, which could not be repaired if the appeal was successful (ts 3).
7 In SAT, an application was made by Mr Gandini for an order under s 62 of the State Administrative Tribunal Act 2004 (WA) to suppress publication of the reasons for decision of SAT dated 8 June 2011. That application was unsuccessful. I was informed by counsel that the application was dealt with in June after the parties had been provided with copies of the reasons for decision (ts 5).
8 A stay may be granted by a judge under r 43(2)(h) of the Supreme Court (Court of Appeal) Rules 2005 (WA). See also the definition of 'interim order' under r 3. The principles governing a stay application are clear: see Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308. A successful litigant is entitled to enforce the judgment and the court will usually refuse to grant a stay unless special circumstances are shown justifying departure from the ordinary rule. An essential issue is whether the right of appeal will be rendered nugatory if a stay is not granted; that is, whether it is necessary to preserve the subject matter or integrity of the litigation or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal and if that can be demonstrated it is necessary to show that there are reasonable prospects of success. Finally, the balance of convenience has to be considered.
9 I will first consider whether or not the appeal would be rendered nugatory or whether there will be practical difficulties created if the stay is not granted. The argument that there may be adverse publicity is an argument which should first be advanced in SAT. It is SAT which has the ability to make an order which would prevent publicity. This court in the exercise of its jurisdiction to grant a stay should not intrude on the powers of SAT before SAT has considered the matter.
10 I bear in mind that SAT has already considered the matter and refused to make an order under s 62. That decision was not appealed against. However, if there is some new material which should be brought before SAT, then a fresh application could be made and that could be made at the time the decision is handed down in relation to penalty.
(Page 5)
11 A factor which goes to balance of convenience is the fact that there has already been publication of material which reveals what the allegations were and what findings have been made. The balance of convenience favours dismissal of the application for a stay in this court at this stage because the material has already been made available to the public in the form of the reasons for decision in Legal Profession Complaints Committee v Gandini [2011] WASAT 86. For those reasons I would dismiss the application for a stay.
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