Gandini v Legal Profession Complaints Committee

[2012] WASC 428

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   GANDINI -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2012] WASC 428

CORAM:   McKECHNIE J

HEARD:   26 OCTOBER 2012

DELIVERED          :   26 OCTOBER 2012

FILE NO/S:   CIV 2685 of 2012

BETWEEN:   LEONARD GANDINI

Applicant

AND

LEGAL PROFESSION COMPLAINTS COMMITTEE
Respondent

Catchwords:

Prerogative writ - Legal practitioners - hearing before State Administrative Tribunal - Request to substitute final submissions - Whether arguable error

Legislation:

State Administrative Tribunal Act 2004 (WA), s 32, s 34

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     Mr R J Butcher

Respondent:     Ms P E Cahill SC & Ms P E Le Miere

Solicitors:

Applicant:     Butcher Paull & Calder

Respondent:     Law Complaints Officer

Case(s) referred to in judgment(s):

Craig v State of South Australia (1995) 184 CLR 163

Legal Profession Complaints Committee and Gandini [2012] WASAT 162

Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219, (2006) WAR 501

McKECHNIE J: 

How this matter comes to court

1. The Legal Profession Complaints Committee instituted proceedings before the State Administrative Tribunal alleging professional misconduct against Mr Gandini, a lawyer.  After hearing closing submissions the Tribunal reserved its decision.  It is apparently due to hand down its decision on or about 5 November 2012 which is why this application has been brought on urgently even though the decision complained about was made on 1 August 2012.  Under the State Administrative Tribunal Act 2004 (WA) the decision must be given by early December in any event.

2. Full details are set out in the Legal Profession Complaints Committee and Gandini [2012] WASAT 162 and in Mr Gandini's affidavit in support of the application filed 8 October 2012 and the further affidavit filed 26 October 2012.

3. In brief, at the conclusion of the hearing on 7 March 2012, it was agreed between counsel that closing submissions be in writing and exchanged simultaneously with oral submissions in reply.  Oral submissions were made on 17 July 2012.  Mr Gandini was present throughout.  He complains that the submissions made by his counsel were:

   [W]ithout instructions, prejudicial to me, he failed to respond to the LPCC's written closing submissions, contained unauthorised concessions and failed to adequately deal with the queries from Tribunal members.

4. In due course, Mr Gandini withdrew the brief from his counsel and prepared some affidavits which were apparently, he says, not allowed to be filed, although that is an issue I will deal with later.  The issue was argued before SAT by counsel for the committee and counsel for Mr Gandini, following which SAT made the following orders: 

   1.The application for leave to file written submissions on behalf of the practitioner in lieu of the oral submissions made on 17 July 2012 is dismissed.

   2.The respondent has leave to file and serve short supplementary written submissions, within seven days of the transcript of hearing on 17 July 2012 being made available by the Tribunal, in relation to:

   (a)comments made by counsel on 17 July 2012;

   (b)concessions made by counsel on 17 July 2012;

   (c)response to closing submissions of the applicant;

   (d)queries from the Tribunal on 17 July 2012; and

   (e)matters omitted by counsel on 17 July 2012.

   3.The applicant may file, and if so, must serve any responsive submissions within seven days of receipt of the respondent's submissions provided in accordance with order 2.

   4.The costs of the hearing of today, and of compliance with the foregoing orders, is reserved.

   5.The Tribunal's decision is reserved with effect from receipt of the last of the submissions filed in accordance with the preceding orders [30].

5. Mr Gandini submits in his affidavit at paragraph 26:

   The submissions made by Mr Rynne on the evening of 17 July 2012 were so damaging to me that the only fair outcome is that they be withdrawn and replaced with submissions that were based on instructions and not prejudicial to me, that did not make unauthorised concessions, and that properly responded to the LPCC's written closing submissions, and properly dealt with queries from SAT members.

6. Then paragraph 27: 

   If the SAT proceeds to determine this matter without Mr Rynne's submissions being withdrawn, I will not have had a fair hearing before the SAT.

An appeal is lodged

1. The applicant lodged a notice of appeal and an application for stay was heard by Murphy JA on 18 September 2012.  Murphy JA pointed out the orders of SAT had been complied with so there was nothing to stay.  As Order 1 dismissed the application there was of course nothing to stay on that order. 

2. Subsequently on 27 September 2012, Newnes JA approved a consent order that the application for a stay be discontinued with a costs order adverse to Mr Gandini.  The appeal is apparently waiting to be heard.

The grounds pleaded

1. The grounds for certiorari and Mandamus are set out in the writs and the grounds are as follows: 

   The Tribunal erred in refusing to abide by the rules of natural justice and/or failing to follow the provisions of s 32 and s 34 of the State Administrative Tribunal Act 2004 ('the SAT Act').

Particulars

1. There were four particulars and counsel has by leave today added a fifth: 

   (1)The tribunal failed to abide by the rules of natural justice as required by section 32(1) of the SAT Act by refusing the appellant the opportunity to adduce evidence to advance his case on 1 August 2012.

   (2)The tribunal failed to act in a speedy and fair manner as required by section 34 of the SAT Act by refusing the appellant the opportunity to adduce evidence to advance his case on 1 August 2012.

   (3)The tribunal failed to ensure that the appellant had the opportunity to call and/or give evidence on 1 August 2012, in contravention of section 32(6)(c)(i) of the SAT Act.

   (4)If the evidence had been allowed, it would have provided the Tribunal with a basis to show that the appellant's counsel had exceeded the limits of his authority of 17 July 2012. 

   (5)The tribunal failed to ensure that the applicant was given the opportunity to fully present his case.

2. The State Administrative Tribunal Act s 32(1) is authority that SAT is bound by the rule of natural justice. Section 34 allows SAT to give directions at any time and to do whatever is necessary for the speedy and fair conduct of the proceedings. SAT was well aware of its responsibilities.

   The Tribunal also has power under s 34(1) of the SAT Act to:

   … give directions at any time in a proceeding and to do whatever is necessary for the speedy and fair conduct of the proceeding.

   The discretion that exists would be guided by the Tribunal's main objectives as set out in s 9 of the SAT Act and by the terms of s 32(1) of the SAT Act, which provides that:

   The Tribunal is bound by the rules of natural justice except to the extent that this Act or the enabling Act authorises, whether expressly or by implication, a departure from those rules [19] ‑ [20].

3. Recognising that it had the power to grant leave to file substituted submissions, SAT exercised a discretion against the exercise of the power because it was found there was no reasonable basis for so doing in this case [4].

Disposition of application

1. In order to obtain a grant of an order nisi, Mr Gandini must establish an arguable case of jurisdictional error by SAT.  There is no jurisdictional error.  SAT gave Mr Gandini a reasonable opportunity to be heard and to respond to the allegations made against him.  He fully participated in the hearing through counsel and by giving evidence.  At the conclusion of the evidence, he instructed counsel and made written submissions and then oral submissions.  Mr Gandini was present throughout the oral submissions by both his counsel and counsel for the committee.  He raised no issue at the time.  He says in his affidavit that he thought about it that night and for the next few nights before terminating counsel's authority.

2. Necessarily, counsel representing a person in proceedings such as these or any proceedings, has a wide general authority to select the arguments that might find favour with SAT and persuade SAT or court to find in a particular way.  Those arguments sometimes may not please the party on whose behalf they are being advanced but they are within the general authority of counsel.

3. The rules of natural justice which relevantly entitled Mr Gandini to a fair opportunity to be heard were amply complied with.  There is no arguable basis on the facts that there was any procedural unfairness.  Mr Gandini has given evidence by affidavit that he was on 1 August 2012 waiting outside ready to swear affidavits and give evidence and says that SAT refused to hear him, but that is not in fact what happened.  At the end of the submissions on 1 August 2012, counsel who was then appearing for Mr Gandini (who is not the counsel who earlier appeared or counsel today) said:

   Your Honour, in response to my friend's submissions as to the absence of material going to the particularity of the practitioner's concerns, the practitioner has prepared affidavits setting out those concerns.  Those affidavits are available.  I don't have them with me.  They're outside and that sets out with a degree of specificity, and certainly by way of example it's not wholly exhaustive because it has been prepared from practitioner's recollection.

4. He spoke about the transcript and said:

   [I] can offer up affidavit evidence if it's a question for members of the Tribunal.

   PARRY, J:  We asked you, Mr Lourey.  We asked you to identify the topics.  I asked you that at the beginning.  You can rely on any source that you're aware of that answers our question.  To answer that question at the moment all you've told us in very general terms is that there was a desire to answer questions posed by the Tribunal or provide further answers to the questions posed by the Tribunal to provide further answers to submissions made by the applicant (ts 11).

5. There followed some more interchange between Parry J and counsel until at the end it is said:

   JUDGE PARRY:  Is there anything else you wish to say?

   LOUREY, MR:  No, your Honour.

   JUDGE PARRY:  Thank you.

   LOUREY, MR:  Other than - as to specificity, if that's what the tribunal requires, I have the affidavits filed (ts 13)

6. It is clear from that that SAT never refused to accept the affidavits for filing or indeed refused to hear Mr Gandini.  Although counsel attempted to put the burden on SAT to make the decision, very properly, these being party adversary proceedings, SAT left it to counsel to make the decision.  In the end counsel did not press that the affidavits be admitted, so for that reason there is no procedural unfairness shown.

7. Stripped to its essentials, Mr Gandini now wants to be heard again.  Granting that request by SAT would have been an indulgence.  Failure to do so is not a breach of the rules of natural justice or unfair. 

8. There is a further obstacle for the applicant in Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219, (2006) WAR 501. Martin CJ (Wheeler J and McLure J agreeing) said:

   In my view, the use of prerogative remedies to challenge decisions of the Tribunal is a course of action which this Court should actively discourage. The legislature has provided a specific right of appeal to this Court from decisions of the Tribunal. Prerogative relief should only be sought instead of exercising that right in the most exceptional circumstances. I will return later in my judgment to the approach which I think the Court should take when confronted with inappropriate proceedings of this kind. But first it is necessary to chart their course [6].

9. Martin CJ returned later in his judgment to deal as to why that is:

   In my view, these are all powerful considerations in favour of this Court adopting and applying the principle enunciated in the authorities to which I have referred in the case of applications for prerogative relief directed to the State Administrative Tribunal and holding that such relief will only be granted in exceptional circumstances. It would be undesirable to attempt to define those circumstances that would be regarded as exceptional, but generally it could be expected that they would be circumstances which would suggest some good reason for not exercising the right of appeal conferred by the Parliament. The onus of establishing those circumstances must rest upon the applicant for prerogative relief [139].

10. As SAT is analogous to a court, the narrower scope for a grant of prerogative writ identified in Craig v State of South Australia (1995) 184 CLR 163 is applicable.

Conclusion

1. No relevant error is identified.  I will not grant an order nisi for a writ of certiorari or mandamus because there is no arguable basis to do so or to suggest that an order nisi might ultimately be made absolute.  If I am wrong, I would not grant an order nisi in discretion in any event.  Mr Gandini has appealed against the decision of SAT and that appeal is yet to be heard.  That appeal will determine whether SAT was in error.  There is little point in a single judge determining the same matter on an order nisi when Mr Gandini has sought the authority of a decision of the Court of Appeal.  For both these reasons this application is dismissed.