Gonciarz v Legal Profession Complaints Committee - [2021] WASC 351

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   GONCIARZ -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2021] WASC 351
CORAM:   ALLANSON J
HEARD:   8 OCTOBER 2021
DELIVERED          :   20 OCTOBER 2021
PUBLISHED           :   20 OCTOBER 2021
FILE NO/S:   CIV 1657 of 2021
BETWEEN:   ALICJA JOLANTA GONCIARZ
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
LAW COMPLAINTS OFFICER
Second Respondent

Catchwords:

Judicial review - Writ of certiorari or to quash the decision - Whether error in law dismissing complaint made to Legal Profession Complaints Committee - Where power delegated to Law Complaints Officer - Where delegation within power

Legislation:

Interpretation Act 1984 (WA)
Legal Profession Act 2008 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
First Respondent	:	C Beetham
Second Respondent	:	C Beetham

Solicitors:

Applicant	:	In Person
First Respondent	:	Legal Profession Complaints Committee
Second Respondent	:	Legal Profession Complaints Committee

Case referred to in decision:

G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503
Jamieson v McKenna [2002] WASCA 325

ALLANSON J:

Introduction

The applicant, Alicja Jolanta Gonciarz, complained to the Legal Profession Complaints Committee about the conduct of a legal practitioner. On 27 May 2021, the Law Complaints Officer dismissed her complaint on the ground that it was lacking in substance.
The applicant brought this application for judicial review on 12 July 2021, for a writ of certiorari, or an order with the same effect, to quash the decision.
The applicant contends that the Complaints Committee and the Law Complaints Officer erred in law in dismissing her complaint without any investigation into it, and the decision is invalid.
By amendments to the application, the applicant further contended (although the grounds were expressed as questions) that the decision was not made by the statutory voting quorum of the Complaints Committee and is thus invalid; and that the conduct of the Law Complaints Officer is in breach of the Legal Profession Act 2008 (WA) and is conduct capable of constituting unsatisfactory professional conduct or professional misconduct.
The application raises questions of construction of the Act, and in particular s 415(1) and (3). Those sections must be construed in the context of the Act as a whole.
Unless otherwise indicated, all references to legislation in these reasons are to the Legal Profession Act.

The evidence

On 7 September 2021, the Complaints Committee filed an affidavit of Cassandra Claire Paterson, affirmed that day. Relevantly, Ms Paterson attached:
(1)a written delegation dated 4 December 2012, signed by three members of the Complaints Committee, by which the Complaints Committee delegated specified powers to the Law Complaints Officer, including its powers under s 415(1)(b) and (3);
(2)an evidentiary certificate dated 6 September 2021 pursuant to s 593(6)(d), evidencing the appointment of Russell John Daily to the position of Law Complaints Officer commencing 10 February 2020;
(3)a preliminary letter, dated 8 March 2021, from a legal officer of the Law Complaints Officer's 'Rapid Resolution Team' to the applicant, which advised her that, in the view of the author, there was no conduct issue that required investigation;
(4)a letter to the applicant, dated 27 May 2021, setting out the decision of the Law Complaints Officer.
The applicant filed an affidavit, sworn by her on 11 September 2021. In it, she supplemented the material provided by the respondent and attached:
(1)her letter of 22 March 2021, responding to the views set out in the letter of 8 March 2021 from the legal officer of the Rapid Resolution Team;
(2)additional documents she provided in support of the complaint on 7 May 2021, with a request that it be formally referred to the Law Complaints Officer for investigation;
(3)her objection, in a letter dated 5 July 2021, to the failure of the Law Complaints Officer to investigate her complaint.

The statutory context

Part 16 of the Act provides for regulatory authorities including the Legal Profession Complaints Committee, established under s 555, and the office of Law Complaints Officer, established under s 572.
By s 573, the Complaints Committee may delegate any power or duty under another provision of the Act, except its powers under s 426, to the Law Complaints Officer. The delegation must be in writing.
Part 13 of the Act, s 401 to s 469, deals with complaints and discipline of Australian legal practitioners.
By s 410(1)(e), a complaint may be made by any person who has a direct personal interest in the matters alleged in the complaint. A complaint may be made direct to the Complaints Committee or through the Law Complaints Officer.[1]
[1] Section 410(2).
By s 412, the Complaints Committee may require the complainant to give further details about the complaint or require the complainant to verify any details by statutory declaration.
Subject to s 413(2), the Complaints Committee must ensure that, as soon as practicable after a complaint is made, written notice is given to the practitioner about whom the complaint is made. It is not suggested that s 413(2) applies in this case. By s 413(6):
Nothing in this section requires the Complaints Committee to give written notice under this section to the practitioner until the Complaints Committee has had time to consider the complaint, seek further information about the complaint from the complainant or otherwise undertake preliminary inquiries into the complaint, and properly prepare the notice.
Section 414 provides for the practitioner about whom the complaint is made to make submissions. By s 414(3), the Complaints Committee must consider the submissions made.
By s 415:
(1)The Complaints Committee may dismiss a complaint if -
(a)further details are not given, or the details of the complaint are not verified, as required by the Complaints Committee under section 412; or
(b) the complaint is vexatious, misconceived, frivolous or lacking in substance; or
(c) the conduct complained about is the subject of another complaint; or
(d) it is not in the public interest to deal with the complaint having regard to the fact that the name of the Australian legal practitioner to whom the complaint relates has already been removed from any Australian roll on which the practitioner was enrolled.
(2)The Complaints Committee must dismiss a complaint if -
(a) the complaint was made more than 6 years after the conduct complained of is alleged to have occurred, unless a determination is made under section 411 in relation to the complaint; or
(b) the conduct complained about has been the subject of a previous complaint that has been dismissed; or
(c) the complaint is not one that the Complaints Committee has power to deal with.
(3) The Complaints Committee may dismiss a complaint under this section without completing an investigation if, having considered the complaint, the Complaints Committee forms the view that the complaint requires no further investigation.
Part 13, div 6 provides for investigations by the Complaints Committee. By s 421(2), the Complaints Committee must investigate each complaint. That subsection does not, however, apply to a complaint that is dismissed under pt 13.[2]
[2] Section 421(3)(b).
Part 15 contains provisions relating to investigations, including investigations by the Law Complaints Officer or a person nominated by the Law Complaints Officer.
Division 7, including s 424, provides for the decision of the Complaints Committee after an investigation, or referral of the matter of the complaint to the State Administrative Tribunal.

The applicant's contentions on the application for judicial review

Dismissing a complaint without investigation

The applicant contends that her complaint was not investigated before it was dismissed, where the Act requires that the Complaints Committee must investigate each complaint. She submits that, before a decision to dismiss a complaint is made, an investigation must have either commenced or be completed. The applicant submits that a complaint cannot be dismissed under s 415(1)(b) and (3) without an investigation as required under s 421(2).
The applicant submits that the Complaints Committee could not reach the degree of satisfaction necessary to decide to dismiss a complaint and not take action on it without conducting an investigation with at least the following 'mandatory and indispensable' steps:
(1)after conducting preliminary inquiries into the complaint, the Complaints Committee must give written notice of the making of the complaint, the nature of the complaint and the identity of the complainant to the concerned legal practitioner and inform the practitioner of their right to make submissions;
(2)the Complaints Committee must consider any submissions received from the practitioner within the permitted period.
The applicant submits that any decision made by the Law Complaints Officer before investigating the complaint would be made in breach of the Act and is invalid. She submits that, without investigation, the decision is simply the opinion of the legal officer and is not based on evidence.
The order of sections appears to favour the applicant's argument that a complaint must be investigated, or investigation must have commenced, before the exercise of the power to dismiss in s 415. The Act sets out a logical order in s 410 to s 415: the making of complaints, the request for further information or verification, the requirement to notify the practitioner, the consideration of the submissions made by the practitioner, and summary dismissal or withdrawal.
There are, however, several matters which support the alternative construction.
First, the three sub-sections of s 415 set out different bases on which a complaint may be summarily dismissed. Section 415(1) and (2) do not refer to an investigation as a condition of the exercise of the power. Only s 415(3) refers to investigation.
Second, the criteria to which the Complaint Committee (or the Law Complaints Officer as its delegate) is to have regard under s 415(1) and (2) do not depend on findings being made on evidence, including the response of the practitioner, about the conduct of the practitioner. Those criteria call for consideration of such matters as the making of the complaint, the complaint itself, and the status of the practitioner. The practitioners response may be relevant, but the criteria do not necessarily require consideration of any response.
Third, the applicant refers to the terms of s 415(3), by which the Complaints Committee may dismiss a complaint 'without completing an investigation if, having considered the complaint, the Complaints Committee formed the view that the complaint requires no further investigation'. The applicant submits that subsection (3) logically assumes that there has been an investigation commenced, otherwise the committee could not form the view that 'no further investigation' is required.
It is, however, wrong to assume that the power of summary dismissal on the criteria in s 415(1) is in some way dependent on s 415(3), and not an independent power. Each of the subsections of s 415 deal with separate matters. Subsections (1) and (2) set out grounds on which a complaint may or must be dismissed. Subsection (3) does not, itself, set out grounds on which the power to dismiss a complaint is to be exercised.
The respondent submits that s 415(3) is facilitative and removes any doubt that the power to dismiss a complaint under the section may be exercised without completing an investigation. I agree with that construction. Subsection (3) does not mandate an investigation as a condition of exercise of the power in the preceding subsections.
It is true, as the applicant submits, that the letter she received from the Law Complaints Officer referred to a decision made under s 415(1) and (3). In that regard, the letter may demonstrate error, but it is not an error that is material to the result or that could be regarded as jurisdictional.
Fourth, the construction that an investigation is not required before the exercise of the powers in s 415(1) and (2) is consistent with the grounds on which a complaint may be dismissed. It could not have been intended, for example, that the Complaints Committee must begin to investigate a complaint before dismissing it where the complainant fails to provide necessary details when required; or when the complaint is, on its face, vexatious, misconceived, or lacking in substance. Similarly, under s 415(2), it could not have been intended that the Complaints Committee must investigate a complaint that it does not have power to deal with.
Finally, the applicant submits that, pursuant to s 421(2), the Complaints Committee 'must' investigate each complaint. That subsection, however, is subject to s 421(3) which provides that it does not apply 'to a complaint that is dismissed or withdrawn under this Part' - that is, under pt 13. A complaint dismissed under s 415 is dismissed under pt 13 and the obligation to investigate in s 421(2) does not apply. In my opinion, s 421(3) supports the construction of s 415 that it contains powers (those in subsections (1) and (2)) that may be exercised without investigation.
I am satisfied, having regard to all of those considerations, that on the proper construction of s 415, the power exercised by the Law Complaints Officer on this occasion to dismiss the complaint under s 415(1)(b) was not dependent on his having investigated, or commenced to investigate, the complaint.
If the Law Complaints Officer also purported to act pursuant to s 415(3) that is immaterial to his decision and does not support a finding of jurisdictional error.

The Delegation

The applicant's other primary argument is that the Complaints Committee is a collective body which must consist of at least nine members, including at least two community representatives.[3] Any decision of the Complaints Committee must be a decision carried by a majority of its members present at a meeting, including the presence of a community representative. Delegation of the committee's collective decision-making power to an individual, such as the Law Complaints Officer, is inconsistent with the Act.
[3] Section 556.
The applicant cited the decision of the Court of Appeal in Jamieson v McKenna, where Anderson J referred to the patent invalidity of the exercise of statutory powers by one member of a tribunal which is lawfully constituted by three members.[4] Neither Jamieson v McKenna nor the case to which his Honour was referring concerned the exercise of power by a delegate.
[4] Jamieson v McKenna [2002] WASCA 325 [22], referring to G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503, where an award was made by the chairman alone of an industrial tribunal constituted by a judge and two assessors.
The delegation by a collegiate body to an individual is a frequent practice in both statutory and other contexts. A common example is where a board of directors of company delegates the power to make day to day decisions to its managing director.
When considering the delegation of statutory powers or functions, whether delegation is authorised, and the extent of the delegation that is authorised, are questions of statutory construction. Whether a particular power or function has been delegated turns on the proper construction of the instrument of delegation. The delegation to, and performance of functions by, a delegate is facilitated by s 58 and s 59 of the Interpretation Act 1984 (WA).
The following matters are relevant to the issue of statutory construction.
First, the Law Complaints Officer is established as a separate statutory office under s 572. Apart from s 572(3) which provides that the Law Complaints Officer may appear at an investigation, inquiry or hearing, all of the functions of that office, and all of its powers and duties, are by delegation from the Complaints Committee pursuant to s 573.
Second, s 573 expressly provides for the Complaints Committee to delegate 'any power or duty', except the power under s 426 (that is, the power to summarily deal with a complaint by reprimand, fine, or other order, where it is satisfied that there is a reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of unsatisfactory professional conduct). No other powers or duties are exempt from the power to delegate.
The clear intention of those sections is that the functions of the Complaints Committee may be delegated to and performed by the Law Complaints Officer.
The delegation to the Law Complaints Officer is signed by three members of the Complaints Committee, including a community representative - a quorum of under s 566. On its face the delegation is a lawful exercise of the power to delegate.
The applicant does not contend that the function exercised by the Law Complaints Officer on this occasion fell outside the terms of the written instrument of delegation. It clearly did not.
The application for judicial review must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Associate to the Honourable Justice Allanson
20 OCTOBER 2021