Goldsmith v Legal Profession Complaints Committee
[2021] WASC 217
•1 JULY 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: GOLDSMITH -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2021] WASC 217
CORAM: TOTTLE J
HEARD: 30 JUNE 2021
DELIVERED : 30 JUNE 2021
PUBLISHED : 1 JULY 2021
FILE NO/S: CIV 1943 of 2020
BETWEEN: BARRIE GOLDSMITH
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
Respondent
Catchwords:
Judicial review - Application for discovery - Discovery under O 56 r 5(2)(g) of the Rules of the Supreme Court 1971 (WA) - Whether discovery necessary to fairly dispose of the proceedings - Whether documents sought are directly relevant to any issue to be determined in the proceedings - Application refused
Legislation:
Legal Profession Act 2008 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Dr J Lucy |
| Respondent | : | Mr G D Cobby SC and Ms M Georgiou |
Solicitors:
| Applicant | : | Goldsmiths Lawyers |
| Respondent | : | Legal Profession Complaints Committee |
Case(s) referred to in decision(s):
Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55
Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 108
Roe v State of Western Australia [2013] WASC 130
Singh v Friedman [2013] WASC 78
TOTTLE J:
Introduction
In this application for judicial review the applicant has applied for discovery of nine categories of documents.
By the substantive application for judicial review the applicant seeks to review an alleged failure or refusal by the respondent, the Legal Profession Complaints Committee (Complaints Committee) to perform its statutory duty to deal with nine complaints made to it by the applicant on or about 16 June 2020. The complaints relate to a legal practitioner who practises as a senior counsel at the independent bar in Perth (the Practitioner). The applicant alleges the Complaints Committee has failed to deal with the complaints as efficiently and expeditiously as is practicable.[1] He alleges the Complaints Committee failed or refused to investigate those complaints within a reasonable time or at all. The applicant seeks a prerogative writ of mandamus compelling the Complaints Committee to investigate and deal with each of the complaints in accordance with their statutory duty. Two complaints arise out of events in late 2016, six complaints arise out of events that took place in 2017 and the remaining complaint concerns events in late 2018.
[1] See Legal Profession Act 2008 (WA), s 431.
The Complaints Committee opposes the substantive relief sought on three bases:
(a)First, it contends a decision made in July 2020 to await the outcome of certain proceedings in the State Administrative Tribunal before investigating the applicant's complaints was reasonable in the circumstances. Relevantly the circumstances included two matters. First, the SAT proceedings concern allegations of professional misconduct made by the Complaints Committee against the applicant arising out a brief to the Practitioner in 2016 and a subsequent dispute about the Practitioner's fees, and secondly, the complaints made by the applicant involved matters on which evidence was likely to be given in the SAT proceedings which might be the subject of possible comment and findings by the SAT.
(b)Secondly, the applicant's complaints are now being investigated such that any writ of mandamus would lack utility.
(c)Thirdly, these proceedings are brought for a collateral purpose being to obtain an advantage in the proceedings before the SAT.
The substantive application is listed for hearing on 27 July 2021. Both parties have filed and served the affidavit evidence upon which they wish to rely and both parties have filed written outlines of submissions. The applicant has applied also for leave, in the event the discovery application succeeds, to file further affidavit evidence attaching the documents so discovered by the Complaints Committee.
Applicable principles
As Owen J (as his Honour then was) observed in Perpetual Trustees WA Ltd v City of Joondalup[2] it is unusual for discovery to be ordered in proceedings for a prerogative writ. This is because applications for judicial review are concerned with legality of decision-making and the conduct of decision-makers rather than the inherent merits of the decisions under review. The impugned decisions and the conduct of decision makers are usually matters of record about which there is usually little scope for disputation.
[2] Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 108.
Order 56 r 5(2)(g) of the Rules of the Supreme Court 1971 (WA) provides that the Court may give the applicant leave to require a person served with the application for prerogative relief to give discovery under O 26. If an application for discovery is made then the general principles governing discovery apply.
In Singh v Friedman,[3] Allanson J distilled the principles applicable to applications for general discovery into a number of propositions. Omitting his Honour’s citation of authority the propositions were as follows:
1.A party does not have a strict entitlement to an order for discovery.
2.The power to order discovery is discretionary.
3.The discretion is to be exercised having regard to the timely and cost effective disposal of litigation.
4.On the other hand, discovery has been described as promoting the ascertainment of truth in litigation and as an essential part of the proper administration of justice.
5.Subject to the rules of privilege, there is a 'public interest in having available all evidence relevant to the issues in litigation'.
6.The ultimate test is whether the discovery is necessary for fairly disposing of the proceedings.
7.Relevance is not the only factor the court must consider in the exercise of the discretion to order discovery. But whether a document relates to a matter in question in the proceedings remains the descriptive criterion in O 26 of what documents should be discovered.
[3] Singh v Friedman [2013] WASC 78 [3] – [4].
In Roe v State of Western Australia,[4] in the course of making a number of observations about the contemporary principles that govern the provision of discovery, Martin CJ emphasised the importance of proportionality, which requires a court, before ordering any interlocutory process, to assess whether the forensic benefit to be derived by that process is proportional to the cost and delay which will flow from the undertaking of the process, having regard to the value, importance and complexity of the subject matter in dispute and the financial position of the parties.
[4] Roe v State of Western Australia [2013] WASC 130 [10] – [13].
Martin CJ added that when general discovery has not been sought or ordered, adjectival or indirect relevance of itself will no longer determine whether or not a document will be ordered to be discovered, and in particular the approach to general discovery enunciated in cases like Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co[5] will no longer guide the court in relation to issues with respect to informal discovery.
[5] Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55.
This is not an application for general discovery. In the course of determining whether the discovery is necessary for fairly disposing of the proceedings I will focus on: whether the documents sought are directly relevant to an issue in the application, their forensic significance, and whether ordering discovery accords with the concept of proportionality as it has been referred to in the authorities.
The discovery sought
The documents sought by the applicant are said to be relevant to the reasonableness of the Complaints Committee’s conduct in investigating the complaints. The documents sought relate primarily to the time granted to the Practitioner to provide responses to the complaint. It is contended (to use the applicant's words) 'the granting of indulgences' to the Practitioner raised concerns about the Complaints Committee impartiality and provided support for the applicant’s case generally.
Two general observations may be made.
(a)First, it is significant that the history of the Complaints Committee's dealing with the applicant's complaints is set out in detail in the applicant's affidavits and in affidavits sworn by Mr Russell Daily, the Law Complaints Officer and by two members of the Complaints Committee's staff, Mr Nicholas Pope, a solicitor employed in the capacity of Senior Legal Officer and Manager Investigations, and Mr John-Paul Colella, a solicitor employed by the Complaints Committee and nominated by Mr Daily as an investigator for the purposes of pt 15 of the Legal Profession Act 2008 (WA) and instructed to investigate the applicant's complaints. The affidavits attach copies of the applicant's complaints, copies of correspondence exchanged between the Complaints Committee, its staff and both the applicant and the Practitioner and other relevant documents.
(b)Secondly, on my reading of the outlines of submissions filed by the parties there is no contested issue of fact that will need to be resolved at the hearing. I turn now the categories of documents.
All documents evidencing or referring to the extension of time requested by [the Practitioner] on about 27 November 2020, to comply with the request for submissions sent to him by Ms Rorrison, on letterhead of the respondent, on 4 November 2020
The making of the request and the grant of the extension of time are not in dispute. Mr Pope has annexed a copy of an email sent by Ms Rorrison (a member of the Complaints Committee staff) to the Practitioner on 27 November 2020 in which she wrote:
Dear [Practitioner]
I refer to our telephone conversation of this morning.
I confirm that your request for an extension of time to provide your submissions in relation to Mr Goldsmith’s complaint is granted. I look forward to receiving your submissions by Friday, 4 December 2020.
Regards
Rebecca Rorrison
Documents evidencing, or referring to, the extension of time are not directly relevant to any issue in dispute and discovery is not required to dispose of the proceedings fairly.
Minutes of meeting of respondent held on 20 April 2021 insofar as the minutes refer to or concern the complaint made by the applicant on 16 June 2020 about [the Practitioner] (the Complaint) or the applicant. (Other material may be redacted)
In his affidavit affirmed on 4 May 2021 Mr Colella deposes he attended a meeting of the Complaints Committee on 20 April 2021. He deposed that:
In respect of the applicant's complaints against [the Practitioner], the Members resolved that I, in my capacity as the investigator, issue a summons to [the Practitioner] pursuant to s520(1)(c) of the LP Act to provide written submissions requested in the Committee's letter to [the Practitioner] dated 24 February 2021.
That the Complaints Committee resolved that Mr Colella issue a summons is not dispute. The documents in this category are not directly relevant to any issue in dispute and discovery is not required to dispose of the proceedings fairly.
All documents provided to the respondent, prior to its meeting of 20 April 2021, by the Law Complaints Officer, John-Paul Colella or another staff member of the Legal Practice Board, for the purposes of considering the Complaint
These documents are not directly relevant to any issue in dispute and discovery is not required to dispose of the proceedings fairly.
Any summons (including any amended summons) issued to [the Practitioner] on or about 4 May 2021, purportedly pursuant to s 520(1)(c) of the Legal Profession Act 2008 (WA), requiring him to provide submissions in respect of, or a response to, the Complaint
In an affidavit sworn by him on 23 June 2021 Mr Colella deposed that:
On 12 May 2021, I issued the summons to the Practitioner.
The Rules of the Supreme Court 1971 (WA) Order 26 rule 8(2) and (3) provide:
(2)Any party to a cause or matter shall be entitled at any time to serve a notice on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for inspection by the party giving the notice.
(3)The party on whom a notice is served under subrule (2) must within 4 days after service of the notice serve on the party giving the notice a notice stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce, may be inspected at the place specified in the notice, and stating which, if any, of the documents he objects to produce and the grounds of his objection.
It is open to the applicant to serve a notice of O 26 r 8(2) in respect of the summons but he has not done so. If he wishes to obtain discovery of the summons he can avail himself of the O 26 r 8(2) procedure.
All documents evidencing the conversation between John-Paul Colella and [the Practitioner] on 22 April 2021, referred to in Mr Colella’s affidavit sworn on 4 May 2021 at paragraph 8
In his affidavit of 4 May 2021 Mr Colella deposed:
On 22 April 2021 I spoke to [the Practitioner] to advise that a summons was going to be sent to him. At the request of [the Practitioner], and after conferring with the Deputy Chair of the Committee, I agreed that I would hold off on issuing a summons to him if he provided his written submissions by 23 April 2021.
The fact of the conversation is not in dispute. No purpose is served by ordering discovery of documents evidencing a conversation which is not in dispute. Thus, the documents are not directly relevant to any issue in dispute and discovery is not required to dispose of the proceedings fairly.
All documents evidencing the communications between John-Paul Colella and the Deputy Chair of the respondent on 22 April 2021, referred to in Mr Colella’s affidavit sworn on 4 May 2021 at paragraph 8
The observations made in relation to the previous category apply with equal force to this category.
All documents evidencing or referencing any application made by or on behalf of [the Practitioner] for an extension of time to comply with a summons issued to him purportedly under s 520 of the Act of 4 May 2021
Mr Colella deposed in his 4 May 2021 affidavit that:
9.As I have not received those submissions as at the time of swearing this affidavit, I have determined to proceed to issue a summons to [the Practitioner] requiring him to provide those submissions to me by 12 May 2021.
And in a further affidavit sworn on 23 June 2021 he deposed:
6.I was informed by [the Practitioner] on 13 May 2021 that he had retained a solicitor, Ashley Macknay of MDS Legal, to act on his behalf in relation to the Complaints.
7.Following requests by [the Practitioner] and Mr Macknay, and after conferral with the Deputy Chair of the Committee, I determined to allow [the Practitioner] further time to provide submissions in response to the complaint and on 21 May 2021, I issued an amended summons to [the Practitioner] extending the time to provide his submissions to 9 June 2021.
8.Since 9 June 2021 Mr Macknay has told me, in effect, on a number of occasions that I could expect to receive the submissions on behalf of [the Practitioner] in the near future, but I have not received them as at the date of this affidavit. On 23 June 2021, Mr Macknay informed me that he will provide the submissions on behalf of [the Practitioner] by the end of this week.
9.If I do not receive the submissions from [the Practitioner] by the end of this week, I intend to conclude my investigation of the Complaints and commence drafting my advice to the Committee. If I receive the submissions, I intend to seek further comments from Mr Goldsmith and, following receipt of those comments, will consider whether any further investigation is required.
There is no challenge to any aspect of this evidence. These documents are not directly relevant to any issue in dispute and discovery is not required to dispose of the proceedings fairly.
All documents evidencing or referencing the decision or purported decision made to extend the time for [the Practitioner] to comply with a summons issued to him purportedly under s 520 of the Act
There is no dispute that the Practitioner was granted an extension of time to 9 June 2021 to provide submissions. These documents are not directly relevant to any issue in dispute and discovery is not required to dispose of the proceedings fairly.
All submissions made by [the Practitioner] to the respondent, the Law Complaints Officer or a staff member of the Legal Practice Board in relation to the Complaint and all responses provided by [the Practitioner] SC in response to the respondent’s request or demand for a response to the Complaint
I do not understand how any submissions made by the Practitioner are relevant to whether the Complaints Committee failed to deal with the complaints. I am not satisfied that the documents sought are directly relevant to any issue in dispute and discovery is not required to dispose of the proceedings fairly.
Outcome
The application will be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Tottle
1 JULY 2021
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