GREENWOOD and LEGAL PROFESSION COMPLAINTS COMMITTEE
[2010] WASAT 31
•25 FEBRUARY 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: GREENWOOD and LEGAL PROFESSION COMPLAINTS COMMITTEE [2010] WASAT 31
MEMBER: JUDGE J PRITCHARD (DEPUTY PRESIDENT)
MS D DEAN (MEMBER)
MR M ODES QC (SENIOR SESSIONAL MEMBER)
HEARD: 26 NOVEMBER 2009
DELIVERED : 25 FEBRUARY 2010
FILE NO/S: VR 78 of 2009
BETWEEN: PAUL SIMON GREENWOOD
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First RespondentTREVOR BRICKHILL
Second Respondent
Catchwords:
Legal profession - Meaning of reasonable likelihood - Whether reasonable likelihood practitioner will be found guilty by State Administrative Tribunal of unsatisfactory professional conduct or professional misconduct - Application for review of decision dismissing complaint
Legislation:
Legal Profession Act 2008 (WA), Div 10 Pt 13, s 402, s403, s 409, s410, s 410(4)(c), s 413, s 414, s 424, s 424(1), s 425, s 425(a), s 426, s 428, s 428(1), s 435, s 435(1)(a), s 438
State Administrative Tribunal Act 2004 (WA), Div 3 Pt 3, s 5, s 17(1), s 18, s 18(1), s 18(2), s 27(1), s 27(2), s 29
Result:
The decision of the Legal Profession Complaints Committee set aside in part. That part of the complaint referred back to the Committee for reconsideration.
Category: B
Representation:
Counsel:
Applicant: Self-represented
First Respondent : Ms PE Le Miere
Second Respondent : Mr GD Cobby
Solicitors:
Applicant: Self-represented
First Respondent : Law Complaints Officer
Second Respondent : Brickhills Barristers & Solicitors
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Clyne v New South Wales Bar Association (1960) 104 CLR 186
Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719
Department of Agriculture and Rural Affairs v Binnie [1989] VR 836
Flett v Deniliquin Publishing Co Limited [1964-5] NSWR 383
Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42
Restifo and Legal Profession Complaints Committee [2009] WASAT 242
Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208
Taylor v Wembley Tax Shop [2008] WADC 119
REASONS FOR DECISION OF THE TRIBUNAL
Summary of Tribunal's decision
Mr Paul Greenwood sought a review of a decision of the Legal Profession Complaints Committee of its decision to dismiss his complaint alleging unsatisfactory professional conduct or professional misconduct by Mr Brickhill. Mr Greenwood’s allegations pertained to Mr Brickhill’s conduct in the course of representing an appellant in a District Court appeal in which Mr Greenwood was the respondent, and in acting for the appellant in proceedings in the Supreme Court. The Committee determined that there was no reasonable likelihood that the Tribunal would make a finding against Mr Brickhill of unsatisfactory professional conduct or professional misconduct in relation to the allegations made by Mr Greenwood.
The Tribunal identified 16 discrete allegations by Mr Greenwood that Mr Brickhill had engaged in unsatisfactory professional conduct or professional misconduct. On the review Mr Greenwood also sought to raise further allegations of unsatisfactory professional conduct or professional misconduct, arising from Mr Brickhill’s responses to the Committee in the course of its investigation of the complaint. The Tribunal determined that it did not have jurisdiction to deal with these further allegations.
The Tribunal also considered the extent of its functions and discretions in a review under s 435 of the Legal Profession Act 2008 (WA), and the inter-relationship between that Act and the provisions of the State Administrative Tribunal Act 2004 (WA). The Tribunal found that it was not necessary in this case that it determine whether its functions and discretions differed from those of the Committee under s 424 and s 425 of the Legal Profession Act 2008 (WA). Accordingly, the Tribunal proceeded on the basis that its role was to determine the correct and preferable decision on the question whether there existed a reasonable likelihood that the Tribunal would find Mr Brickhill guilty of unsatisfactory professional conduct or professional misconduct in relation to the allegations made by Mr Greenwood.
One of those allegations was that Mr Brickhill signed a certificate of correctness for the appeal book in the District Court appeal, and thereby certified that he had inspected the originals of the documents in the appeal book, when he admitted that he had not in fact done so. The Tribunal determined that there was a reasonable likelihood that Mr Brickhill would be found guilty of unsatisfactory professional conduct in relation to this allegation. The Tribunal set aside this part of the decision of the Committee, and ordered that the Committee reconsider the complaint against the practitioner in accordance with the Tribunal’s reasons for decision and the Legal Profession Act 2008 (WA).
The Tribunal found that there was no reasonable likelihood that the Tribunal would find Mr Brickhill guilty of unsatisfactory professional conduct or professional misconduct in relation to the remainder of the allegations made by Mr Greenwood.
Background
Mr Greenwood is an accountant, who operates a business under the name the Wembley Tax Shop. In 2005, the Wembley Tax Shop did some work for Mr Malcolm Taylor. The work involved the preparation of a draft report of a forensic accounting nature which was intended to be used in connection with some Supreme Court litigation brought by the National Australia Bank against Mr Taylor (the NAB litigation). Mr Taylor did not pay the Wembley Tax Shop's fees for that work. The Wembley Tax Shop brought proceedings in the Magistrates Court against Mr Taylor for the recovery of those fees. Mr Greenwood represented the Wembley Tax Shop, and Mr Taylor appeared on his own behalf. In October 2006, a Magistrate awarded judgment in favour of the Wembley Tax Shop.
Mr Taylor commenced an appeal in the District Court against the Magistrate's decision (the appeal). Mr Trevor Brickhill acted for Mr Taylor in the appeal. Mr Brickhill also acted for Mr Taylor in the NAB litigation. On 29 August 2008, the District Court dismissed the appeal: Taylor v Wembley Tax Shop [2008] WADC 119 (Taylor).
Prior to the hearing of the appeal, and at the hearing of the appeal itself, Mr Greenwood dealt with Mr Brickhill and his firm Brickhills. Mr Greenwood did not consider that Mr Brickhill behaved in a manner appropriate for a legal practitioner.
On 11 September 2008, Mr Greenwood made a complaint to the Legal Profession Complaints Committee (LPCC) arising from various aspects of Mr Brickhill's conduct in relation to the appeal, and in relation to the NAB litigation (the complaint). On 15 May 2009, the LPCC resolved to dismiss the complaint. That decision was made under s 425 of the Legal Profession Act 2008 (WA) (LP Act). The basis for the LPCC's decision was that the LPCC was satisfied that there was no reasonable likelihood that Mr Brickhill would be found guilty by this Tribunal of either unsatisfactory professional conduct or professional misconduct: see s 425(a) of the LP Act.
Mr Greenwood sought a review of the LPCC's decision to dismiss the complaint pursuant to s 435 of the LP Act.
As the complaint dealt with a number of allegations in relation to Mr Brickhill's conduct, the Tribunal ordered that Mr Greenwood identify the allegations he wished to pursue in the review. Mr Greenwood did so in a letter to the Tribunal dated 3 August 2009, which we received into evidence as Exhibit 1 (the SAT complaint). The SAT complaint set out a large number of factual allegations, intermingled with criticisms of Mr Brickhill's conduct. Having regard to the SAT complaint and to Mr Greenwood's oral submissions and his evidence at the hearing, we discerned 16 discrete allegations that Mr Brickhill engaged in unsatisfactory professional conduct or professional misconduct, which reflected the matters the subject of the complaint.
The additional allegations
In addition, however, the SAT complaint contained new allegations of two kinds. First, Mr Greenwood alleged that aspects of Mr Brickhill's conduct in response to the LPCC's investigation of the complaint amounted to unsatisfactory professional conduct or professional misconduct (the additional allegations). Secondly, Mr Greenwood sought to challenge the LPCC's decision on the complaint on the basis of alleged bias by the LPCC in dealing with the complaint. In the course of the hearing, however, Mr Greenwood conceded that an allegation of bias on the LPCC's part was outside the scope of the Tribunal's review, and it is therefore unnecessary for us to pursue that issue further.
The issues
The issues which arise for consideration on the review are:
1)The Tribunal's functions and discretions on a review under s 435 of the LP Act.
2)The construction of s 425 of the LP Act.
3)Whether the Tribunal has jurisdiction on the review to deal with the additional allegations.
4)In relation to each of the allegations in the SAT complaint, what is the correct and preferable decision?
5)Further action in view of the Tribunal's findings on the review.
At the hearing of the review, Mr Greenwood appeared in person and Mr Brickhill was represented by counsel. The LPCC sought to be excused from participation in the hearing, although, at our invitation, counsel for the LPCC made submissions in relation to whether the Tribunal had jurisdiction to deal with the additional allegations. Apart from those submissions, the LPCC played no further part in the hearing of the review.
The evidence before the Tribunal
In conducting the review, we had before us Mr Greenwood's application to the Tribunal and the attachments to that application, a copy of the LPCC's decision on the complaint, copies of the correspondence between Mr Greenwood and the LPCC in which he set out and clarified the complaint, copies of correspondence between Mr Brickhill and the LPCC in which Mr Brickhill responded to the complaint, the SAT complaint (Exhibit 1), and a witness statement made by Mr Greenwood on 13 November 2009 in the review (Exhibit 2). Mr Greenwood also provided us with two lever arch files (Exhibit 3 and Exhibit 4) containing copies of correspondence and documents relating to the Magistrates Court proceedings and the appeal. Mr Greenwood gave evidence in which he elaborated upon the allegations set out in the SAT complaint and he was cross examined by counsel for Mr Brickhill. Mr Brickhill filed a response to the SAT complaint in which he relied on his responses to the LPCC and provided responses to the allegations set out in the SAT complaint. Mr Brickhill did not give evidence, but his counsel made submissions on his behalf at the hearing.
The Tribunal's functions and discretions on a review under s 435 of the LP Act.
After the LPCC carries out an investigation of a complaint, it must make a decision of the kind described in s 424(1) of the LP Act: to dismiss the complaint under s 425, to take action under s 426 or to refer the matter to the Tribunal under s 428 of the LP Act. In the present case, the LPCC dismissed the complaint pursuant to s 425(a) of the LP Act.
Section 435(1)(a) of the LP Act gives a person aggrieved by a decision of the LPCC to dismiss a complaint a right to apply to the Tribunal for a review of the decision. By virtue of s 17(1) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act), if an enabling Act (in this case the LP Act) gives the Tribunal jurisdiction to deal with a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction. The review is to be dealt with in accordance with the enabling Act and the SAT Act, although the enabling Act may modify the operation of the SAT Act in relation to a matter in the Tribunal's review jurisdiction: s 18 of the SAT Act. Ordinarily, therefore, s 29(1) of the SAT Act will apply to a review, so that on the review the Tribunal has functions and discretions corresponding to those exercisable by the decisionmaker, that is the LPCC, in making the reviewable decision. The purpose of the review is to produce the correct and preferable decision at the time of the decision on the review: s 27(2) of the SAT Act.
From that perspective, the role of the Tribunal in a review under s 435 of the LP Act is to determine whether the correct and preferable decision on the complaint is that there is no reasonable likelihood that the practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct (s 425(a) of the LP Act) or whether one of the alternative decisions referred to in s 424(1) is the correct and preferable decision on the complaint.
In Restifo and Legal Profession Complaints Committee [2009] WASAT 242 (Restifo), the Tribunal discussed some of the difficulties that may arise if the Tribunal's functions and discretions on the review are, by virtue of s 29(1) of the SAT Act, confined to those of the LPCC. Having regard to those difficulties, the Tribunal noted that there may be an argument that the scheme of Pt 13 of the LP Act in relation to applications for review under s 435 is inconsistent with s 29 of the SAT Act: Restifo at [26]. If that were so, the argument might be made that the LP Act modifies the operation of the SAT Act (and in particular the operation of s 29(1)) so that the Tribunal's powers on a review under s 435 are not limited to those of the LPCC under s 424 of the LP Act, but rather incorporate those that the Tribunal has in the exercise of its original jurisdiction under Div 10 of Pt 13 of the LP Act, particularly the jurisdiction and powers set out in s 438. Although the Tribunal in Restifo noted this possible argument, it was not necessary in that case to reach a final conclusion about it: Restifo at [28].
The modification of the operation of a provision of the SAT Act may be achieved by express words, or by implication from the provisions of the enabling Act: Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208 (Southside Autos) at [79] and at [82] - [85] (Buss JA, McLure JA and Newnes JA agreeing). Such an implication might be discerned from an inconsistency between a provision of the SAT Act and a provision of the enabling Act: see, for example, Southside Autos at [82] [85] (Buss JA, McLure JA and Newnes JA agreeing). In that event, the enabling Act provision would prevail: s 5 of the SAT Act.
In Restifo at [24] [25], the Tribunal noted that there may be inconvenience to the parties to a review and inefficiency in the manner in which complaints against legal practitioners are dealt with by the Tribunal, if the Tribunal's powers on a review are confined to the exercise of the powers of the LPCC under s 424 of the LP Act. There may be an argument that this inconvenience or inefficiency amounts to an inconsistency between the provisions of the LP Act and the SAT Act, so as to manifest an intention to modify the operation of the SAT Act. An alternative view, however, might be that notwithstanding that some inconvenience or inefficiency may result, the provisions of Pt 13 of the LP Act would nevertheless be capable of application if the Tribunal's powers on a review under s 435 correspond to those of the LPCC under s 424 and s 425.
A further consideration relevant to the argument identified in Restifo would be the inter-relationship between Pt 13 of the LP Act and the SAT Act. It is well-established that where two or more enactments comprise an overlapping legislative scheme, the enactments should be construed accordingly, and so as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation: Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 722 and at 723 724 (Kirby P), and see also Southside Autos at [64] (Buss JA) and the cases cited therein.
Two other provisions of the SAT Act may also be relevant to the question whether the Tribunal's powers go beyond those of the LPCC under s 424 and s 425 of the LP Act. By virtue of s 29(2) of the SAT Act, s 29(1) does not limit the powers given by the SAT Act or the LP Act to the Tribunal. Further, the orders which may be made by the Tribunal under s 29(3) include 'any order the Tribunal considers appropriate'.
Irrespective of the outcome of arguments concerning the scope of the Tribunal's functions and discretions on a review under s 435 of the LP Act, it is clear that at the least, those functions and discretions include those under s 424 and s 425 of the LP Act. The conclusions we have reached on the allegations set out in the SAT complaint, and the orders which we consider should be made in this case, fall within the scope of those functions and discretions. It is, therefore, unnecessary for us to determine whether the Tribunal's functions and discretions on a review under s 435 extend beyond those of the LPCC under s 424 and s 425 of the LP Act.
Construction of s 425 of the LP Act
'Unsatisfactory professional conduct' is defined in s 402 of the LP Act to include conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. 'Professional misconduct' is defined in s 403 of the LP Act to include:
(a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.'
The word 'likelihood' means 'the chance or fact of being likely', and 'a thing that is likely' or a 'probability' (Shorter Oxford English Dictionary, 6th ed, 2007) and the word 'likely' means 'that looks as if it would happen, be realised, or prove to be what is alleged or suggested; probable' (Shorter Oxford English Dictionary). However, the word is qualified by the requirement that the likelihood be 'reasonable'. The word 'reasonable' means 'not greatly less or more than might be thought likely or appropriate; of a fair, average, or considerable amount' (Shorter Oxford English Dictionary).
The meaning of the phrase 'reasonable likelihood' in the context of s 425 of the LP Act is synonymous with the phrase 'reasonably likely'. The meaning of that phrase was discussed in Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 at [842] (Marks J, Young CJ and Teague J agreeing) in the following passage:
The relevant expression here is 'reasonably likely' which has some analogy to 'fair probability'. It suggests the mathematical approach; the word 'reasonably' being a qualification of 'likely', alternatively, a measure in colloquial language of the likelihood.
The expression 'reasonably likely' is substantially idiomatic, its meaning not necessarily unlocked by close dissection. In its ordinary use, it speaks of a chance of an event occurring or not occurring which is real – not fanciful or remote. It does not refer to a chance which is more likely than not to occur, that is, one which is 'odds on' or where between nil and certainty it should be placed. A chance which in common parlance is described as 'reasonable' is one that is 'fair', 'sufficient' or 'worth noting'.
Those observations are equally apt to describe the meaning of 'reasonable likelihood' in s 425 of the LP Act.
In considering whether there is a reasonable likelihood that a practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct, it is also necessary to bear in mind the Tribunal's approach to the proof of matters referred to it under s 428(1) of the LP Act. It is well recognised that the consequences for a practitioner of an adverse determination are such that clear and cogent evidence will be required before a finding of unsatisfactory professional conduct or professional misconduct is made: Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42 at [63]. That follows from the fact that although the standard of proof is on the balance of probabilities, nevertheless the Tribunal must feel an 'actual persuasion' of the occurrence or existence of a relevant fact in determining whether or not conduct of that kind has been made out: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 362 (Dixon J).
Whether the Tribunal has jurisdiction on the review to deal with the additional allegations
At the beginning of the hearing, we raised with the parties the question whether the Tribunal has jurisdiction on the review to deal with the additional allegations. Counsel for the LPCC and Mr Brickhill submitted that on a review under s 435 of the LP Act, the Tribunal may only review the decision made by the LPCC and the additional allegations in the SAT complaint were not the subject of its decision. Mr Greenwood submitted that the additional allegations were raised before the LPCC and therefore the Tribunal has jurisdiction to consider them. We are unable to accept Mr Greenwood's submission, for the following reasons.
First, the Tribunal's jurisdiction under s 435 of the LP Act is to review the decision of the LPCC to dismiss a 'complaint'. The nature of a complaint under the LP Act is described in s 409 and s 410 of the LP Act. In particular, a complaint must describe the alleged conduct the subject of the complaint: s 410(4)(c) of the LP Act. The scope of the matters which the Tribunal may review will therefore necessarily be limited by the alleged conduct complained of in a complaint.
Mr Greenwood first complained to the LPCC about Mr Brickhill's conduct in a letter to the LPCC dated 11 September 2008. The allegations set out in that letter were the subject of correspondence between the LPCC and Mr Greenwood in September and October 2008. Mr Greenwood wrote to the LPCC on 5 December 2008 confirming the allegations of unsatisfactory conduct which he wished to put before the LPCC. The allegations set out in that letter therefore constituted the subject of the complaint. That letter did not contain any reference to the subject of the additional allegations, nor could it have because the letter predated the LPCC's investigation.
As it was required to do by s 413 and s 414 of the LP Act, the LPCC advised Mr Brickhill of the allegations the subject of the complaint and provided him with the opportunity to make submissions in relation to those allegations.
Mr Greenwood first raised the additional allegations in a letter to the LPCC dated 23 February 2009. In our view, the additional allegations did not form part of the conduct which was the subject of Mr Greenwood's complaint.
Secondly, the review by the Tribunal under s 435 of the LP Act is a review of a particular decision, namely the decision of the LPCC to dismiss a complaint. The decision of the LPCC in this case did not make any reference to the additional allegations. The LPCC submitted that Mr Greenwood's letter to the LPCC of 23 February 2009 had been understood as a submission in relation to the complaint and not as containing further allegations forming part of the complaint.
Mr Greenwood submitted that the LPCC had ignored the additional allegations and therefore the decision of the LPCC in relation to the additional allegations was to do nothing. That appears to us to be a contrived view of the matter. In our view, the LPCC's decision did not refer to the additional allegations because they did not form part of the complaint which the LPCC had investigated. Consequently, the decision under review does not pertain to the additional allegations.
Thirdly, the additional allegations were of a very different nature to the allegations initially made by Mr Greenwood. The additional allegations pertained to the manner in which Mr Brickhill had responded to the LPCC's investigation, whereas the allegations set out in Mr Greenwood's letter dated 5 December 2008 pertained to Mr Brickhill's conduct in acting for Mr Taylor in relation to the appeal. It is true that in conducting a review, the Tribunal conducts a hearing de novo and it is not confined to matters that were before the decisionmaker, or to the reasons for decision of the decisionmaker or the grounds of review: s 27(1) and s 27(2) of the SAT Act. However, those provisions do not permit the Tribunal to embark on consideration of entirely different matters from those which were the subject of the decision under review. This is made clear by s 29(9) of the SAT Act.
Accordingly, it is not within our jurisdiction in the review to deal with the additional allegations and to determine whether there is a reasonable likelihood that Mr Brickhill would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct in respect of those matters.
In relation to each of the allegations in the SAT complaint, what is the correct and preferable decision?
a) Alleged conduct of Mr Brickhill during phone call to Mr Greenwood of 17 November 2006
On 10 November 2006, Mr Taylor filed a Notice of Appeal in the District Court against the decision of the learned Magistrate. Mr Greenwood says that the Notice of Appeal was served on the Wembley Tax Shop on 20 November 2006.
Mr Greenwood's case is that on 17 November 2006 (that is, prior to the service of the Notice of Appeal), Mr Brickhill telephoned Mr Greenwood at his home to request Mr Greenwood's unavailable dates (presumably in relation to the hearing of the appeal). Mr Greenwood gave evidence that the phone call was a short one and that he told Mr Brickhill that he 'had better things to do'. Mr Greenwood said that he did not remember if Mr Brickhill pressed him for his unavailable dates, but in any event, Mr Greenwood refused to give Mr Brickhill any unavailable dates for a hearing of the appeal.
Mr Greenwood submitted that Mr Brickhill's conduct constituted harassment and submitted that it was inappropriate conduct for an officer of the Court. There is no evidence which would be capable of supporting the conclusion that Mr Brickhill harassed Mr Greenwood by making this phone call.
Lawyers are subject to a duty to act with honesty, fairness and courtesy in their dealings with each other, and the same duty extends to their dealings with unrepresented litigants, although the duty may be more onerous in respect of dealings with an unrepresented litigant than in respect of dealings with a lawyer for another party: see generally GE Dal Pont, Lawyers' Professional Responsibility, 3rd ed, 2006 at [21.110] and [21.225]. However, the evidence does not suggest that Mr Brickhill acted discourteously in his phone call with Mr Greenwood.
Mr Greenwood also submitted that by seeking his unavailable dates for a hearing prior to the service of the Notice of Appeal, Mr Brickhill demonstrated a lack of knowledge of the chronology of events in an appeal to the District Court and this indicates Mr Brickhill's unsuitability as a legal practitioner to conduct such an appeal. The fact that Mr Brickhill telephoned Mr Greenwood to seek his unavailable dates at the outset would not, of itself, be sufficient to demonstrate a lack of knowledge or competence which a member of the public is entitled to expect of a reasonable competent Australian legal practitioner in the conduct of an appeal to the District Court.
The correct and preferable decision is that there is no reasonable likelihood that Mr Brickhill would be found guilty of unsatisfactory professional conduct or professional misconduct arising from this allegation.
b) Alleged failure of Mr Brickhill to seek an extension of time at the hearing on 14 December 2007
The Notice of Appeal in the appeal was filed on 10 November 2007 which was 10 days out of time.
Mr Greenwood's allegation is that at the hearing of the appeal in the District Court on 14 December 2007, Mr Brickhill did not, at the outset of his submissions, seek an extension of time in which to file the Notice of Appeal. Mr Greenwood said that Mr Brickhill did not make any reference to that application until the matter was raised by Mr Greenwood.
Mr Greenwood submitted that Mr Brickhill had ignored the rules of court and that his conduct demonstrated both a presumption that the appeal would automatically be heard out of time and an arrogance and contempt for the Court that was unbefitting an officer of the Court.
We do not accept that submission. The fact that Mr Brickhill did not at the outset refer to the application for an extension of time would not support the conclusion that Mr Brickhill had ignored the rules of Court, nor could it, without more, be said to demonstrate any contempt for the Court. The application for an extension of time was clearly before the District Court, apparently from the time that the Notice of Appeal was filed. In his reasons for decision on the appeal, his Honour Judge Stevenson noted that on 10 November 2006 (that is, the day on which the Notice of Appeal was filed), Mr Taylor swore an affidavit in support of his application for an extension of time in which to commence the appeal. The reason for the late filing of the Notice of Appeal, namely a delay in obtaining a transcript of the hearing in the Magistrates Court, was explained in Mr Taylor's affidavit. His Honour Judge Stevenson granted the application for an extension of time, noting that the 21 day rule was a procedural requirement, and that there had been no ostensible prejudice to Mr Greenwood as a result of the late filing of the Notice of Appeal: Taylor at [23] [24].
The correct and preferable decision is that there is no reasonable likelihood that Mr Brickhill would be found guilty of unsatisfactory professional conduct or professional misconduct arising from this allegation.
c) Alleged conduct of Mr Brickhill in asking Mr Ho, a solicitor employed by Mr Brickhill, to contact Mr Greenwood to seek his unavailable dates for the hearing of the appeal, prior to the entry of the appeal for hearing
On 16 January 2007, prior to the entry of the appeal for hearing, a Mr Ho, who was a solicitor employed by Brickhills, telephoned Mr Greenwood at the Wembley Tax Shop and asked for Mr Greenwood's unavailable dates for a hearing. Mr Greenwood says that he told Mr Ho that after the appeal was entered for hearing, a directions hearing would be held before a Registrar, and that it was therefore not yet an appropriate time to discuss unavailable dates for the hearing of the appeal. Mr Greenwood says that Mr Ho told him that he was telephoning on Mr Brickhill's instructions, and that he was not familiar with the rules of the Court concerning appeals.
Mr Greenwood submits that Mr Brickhill's failure to properly brief Mr Ho, and his instruction that Mr Ho contact Mr Greenwood at this point in time, indicates that Mr Brickhill was unsuitable to run a legal practice and to conduct an appeal in the District Court.
The fact that Mr Brickhill instructed Mr Ho to telephone Mr Greenwood to seek his unavailable dates prior to the entry of the appeal for hearing would not, of itself, be sufficient to demonstrate a lack of knowledge or competence which a member of the public is entitled to expect of a reasonably competent Australian legal practitioner in the conduct of an appeal to the District Court.
The correct and preferable decision is that there is no reasonable likelihood that Mr Brickhill would be found guilty of unsatisfactory professional conduct or professional misconduct arising from this allegation.
d) Failure by Mr Brickhill to include part of an exhibit in the appeal book for the appeal
In January 2007, Deputy Registrar Hewitt ordered that Mr Taylor file and serve an appeal book in the appeal. Some weeks later, Brickhills forwarded to Mr Greenwood an appeal book and a certificate of correctness for his signature. Mr Greenwood advised Brickhills that the copy of one of the exhibits included in the appeal book was incomplete, and that some 300 pages of annexures were missing from it (the annexures). Mr Greenwood says that Brickhills advised him that Mr Taylor's recollection was that the exhibit which had been tendered had not contained the annexures.
Brickhills filed an appeal book on 30 May 2007 which did not contain the annexures. In correspondence to the LPCC, Mr Brickhill stated that the appeal book contained only the documents from the Magistrates Court that were relevant to the appeal.
Mr Greenwood maintained the view that the annexures should have been included in the appeal book. Mr Brickhill submitted that although the annexures were not considered to be relevant to the appeal, nevertheless Brickhills filed the annexures in view of Mr Greenwood's insistence that they were relevant. Mr Greenwood accepted that that was done on 10 August 2007.
Mr Greenwood submits that Mr Brickhill intentionally and deliberately filed an incomplete appeal book. In his response filed in the Tribunal, Mr Brickhill maintained that all of the materials necessary for the appeal were included in the appeal book which was initially filed.
Under r 55(3)(c) of the Rules of the District Court, a Registrar will make directions relating to the hearing of an appeal including directions as to the preparation of appeal books. We were not informed whether any such directions had been made. Ordinarily, however, a party will be required to include in an appeal book only those materials from the Court below which are relevant to the appeal. That is reflected in the certificate of correctness which the parties are required to sign and which requires the parties to an appeal, or their lawyers, to certify that the appeal book contains only those materials necessary for the appeal. The inclusion of materials which are irrelevant would be inconsistent with the obligation on counsel to use their best endeavours to avoid unnecessary expense and waste of the court's time: Law Society of Western Australia Professional Conduct Rules (2008 revision), r 14.4(2).
Mr Brickhill's position was that he formed the view that the annexures were not relevant to the appeal. In those circumstances, he could not have been expected to include them in the appeal book. We note that neither party referred to the annexures in the course of the hearing of the appeal, and they were not referred to in the reasons for decision of his Honour Judge Stevenson. That supports the conclusion that the annexures were not, in fact, relevant to the issues in dispute on the appeal.
The correct and preferable decision is that there is no reasonable likelihood that Mr Brickhill would be found guilty of unsatisfactory professional conduct or professional misconduct arising from this allegation.
e) Alleged failure by Mr Brickhill to index/paginate the 300 page exhibit as part of the appeal book for the appeal
Mr Greenwood alleges that when the annexures were filed, they were not indexed or paginated, despite the fact that they comprised some 300 pages. The gravamen of Mr Greenwood's allegation, however, was that because the annexures were not indexed or paginated, it was impossible for him to refer to the annexures in his outline of submissions for the appeal and in the hearing of the appeal.
Having regard to the material before us, we do not think that there is a reasonable likelihood that the factual basis for that allegation could be made out. Although the annexures were not filed until 10 August 2007, the hearing date of 15 August 2007 was subsequently vacated and the appeal was eventually heard on 14 December 2007. In any event, Mr Greenwood had had the annexures long before they were filed in the District Court. The annexures formed part of the draft report prepared by Mr Greenwood for Mr Taylor. There was, therefore, ample time for Mr Greenwood to prepare any submissions he wished to make in relation to the contents of that document in its entirety or to the annexures. Furthermore, although the absence of page numbers may have made reference to the annexures during the course of the appeal more cumbersome, that was a difficulty which could easily have been overcome with a little perseverance.
Leaving to one side the absence of a proper factual basis for this allegation, it is far from apparent that Mr Brickhill's failure to paginate the annexures, in the circumstances in which he came to file them in the Court, would be capable of constituting conduct amounting to unsatisfactory professional conduct.
The correct and preferable decision is that there is no reasonable likelihood that Mr Brickhill would be found guilty of unsatisfactory professional conduct or professional misconduct arising from this allegation.
f) Completion of the Certificate of Correctness for the appeal book when the originals of the documents included in the appeal book had not been sighted by Mr Brickhill
Mr Brickhill signed a Certificate of Correctness in relation to the appeal book he filed in the District Court which indicated, amongst other things, that 'all documents have been examined with the original documents and are correct'. Mr Greenwood claimed that the original documents were never examined by Mr Brickhill and that his declaration on the Certificate of Correctness was false. In its decision, the LPCC 'noted with disquiet that the practitioner appeared not to have checked the exhibits himself' but appears to have decided not to take any action, and this allegation was dismissed along with the balance of the complaint.
On the review, Mr Brickhill accepted that he had signed the Certificate of Correctness without examining the originals of all of the documents included in the appeal book. Through his counsel, Mr Brickhill accepted that he should have inspected the documents, but admitted that instead he had asked Mr Taylor what constituted the documents before the Magistrates Court, and in particular relied on Mr Taylor's instructions as to the content of the exhibit which Mr Greenwood subsequently claimed was copied in the appeal book without the annexures.
Counsel for Mr Brickhill submitted that this constituted a 'technical breach' and submitted that there would be no basis for a finding of unsatisfactory professional conduct. We are unable to agree.
Compliance by solicitors with the obligations which are referred to in the certificate of correctness signed by Mr Brickhill in this case to include in an appeal book only those materials necessary for the appeal, and to examine all copies of documents with the originals to ensure they are correct and legible is important to the efficient administration of justice. The time and resources of appeal courts and of parties may be wasted if an appeal book does not contain copies of documents relevant to the appeal in a legible form and which are identical to the original documents which were before the Court below.
For a solicitor to falsely certify that he or she has done the things referred to in a certificate of correctness would constitute conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
Accordingly, we consider that the correct and preferable decision is that there is a reasonable likelihood that Mr Brickhill would be found guilty of unsatisfactory professional conduct arising from this allegation.
We have discussed below the further action which should be taken in view of our finding on this allegation.
g) Alleged failure by Mr Brickhill to advise the District Court of Mr Greenwood's unavailable dates in June and July 2007 for the hearing of the appeal
On 24 April 2007, Brickhills requested that Mr Greenwood provide his unavailable dates for the hearing of the appeal in May, June and July 2007. On 26 April 2007, Mr Greenwood advised Brickhills that he was unavailable throughout June and July 2007. He understood that Brickhills would advise the Court of his, and their, unavailable dates for the hearing of the appeal.
On 6 June 2007, Mr Greenwood received a letter from the District Court advising that the hearing of the appeal had been listed for 27 June 2007.
Mr Greenwood claims that Mr Brickhill deliberately failed to provide Mr Greenwood's unavailable dates to the District Court when he applied for the listing of the appeal. In his evidence before us, Mr Greenwood went further and asserted that Mr Brickhill must have requested the Court to list the appeal for hearing in June, when Mr Greenwood was not available. Mr Brickhill denies that he misled the Court in relation to Mr Greenwood's unavailable dates.
There is no evidence that Mr Brickhill misled the Court as Mr Greenwood claims. The fact that the Court listed the appeal for hearing in June, on a day on which Mr Greenwood had said he would be unavailable would not, of itself, support a finding, or permit an inference to be drawn, that Mr Brickhill deliberately misled the Court in relation to Mr Greenwood's unavailable dates. Other potential explanations for the listing, which do not suggest unsatisfactory professional conduct or professional misconduct by Mr Brickhill, cannot be excluded. By way of example, although courts and tribunals generally endeavour to accommodate unavailable dates of the parties or their lawyers, it is not unknown for a matter to be listed for a date when one or both parties or their lawyers are unavailable.
In the SAT complaint, Mr Greenwood claimed that he telephoned the District Court and was told that Mr Brickhill had not advised the Court of Mr Greenwood's unavailable dates. This aspect of the allegation had not been raised in Mr Greenwood's correspondence with the LPCC in relation to the complaint. The fact that such a significant piece of information was not provided to the LPCC, either in the complaint or at any stage during its investigation, undermines the veracity of that claim.
Even if Mr Brickhill failed to advise the Court that Mr Greenwood was unavailable on 27 June 2007 that would not, of itself, support a finding, or permit an inference to be drawn, that Mr Brickhill did so deliberately. Another possibility is that Mr Brickhill inadvertently failed to include 27 June 2007 as an unavailable date, either because he forgot to do so, or because he made an error in setting out the parties' unavailable dates.
The correct and preferable decision is that there is no reasonable likelihood that Mr Brickhill would be found guilty of unsatisfactory professional conduct or professional misconduct arising from this allegation.
h) Alleged failure by Mr Brickhill to respond in a timely fashion to Mr Greenwood's correspondence requesting that the hearing date for the appeal be vacated
Mr Greenwood had not wanted the appeal to be listed in June 2007 because he had booked annual leave from 9 to 25 June 2007 and he considered that he would need at least a week to prepare for the hearing of the appeal.
After he received the letter dated 6 June 2007 from the District Court advising that the appeal was listed for hearing on 27 June 2007, Mr Greenwood contacted Brickhills to request their consent to vacate the hearing date. Mr Greenwood gave evidence that he wrote to Brickhills on 6 June 2007 and that he sent a facsimile to Brickhills on 7 June 2007 setting out his request to vacate the hearing date. In his evidence, Mr Greenwood accepted that he did not ring Brickhills when he had not received a response to his letter or facsimile prior to going on leave.
Mr Greenwood telephoned Mr Brickhill on 25 June 2007 following his return from leave, and Mr Brickhill agreed to Mr Greenwood's request to vacate the hearing date.
Mr Greenwood alleged that Brickhills ignored his correspondence of 6 and 7 June 2007 because he did not receive a response from them before he went on leave.
The evidence does not support the conclusion that Mr Brickhill failed to respond, or to respond in a timely fashion, to Mr Greenwood's request to vacate the hearing date. Mr Greenwood admitted that in their conversation on 25 June 2007, Mr Brickhill told Mr Greenwood that he had responded by facsimile to Mr Greenwood's letter requesting that the hearing date be vacated. Mr Greenwood did not accept this. He claimed that his facsimile machine had been unplugged while he was on leave so he did not receive any facsimile from Mr Brickhill. There was no evidence to suggest that Mr Brickhill had become aware of this.
In addition, on the first occasion when they spoke about Mr Greenwood's request to vacate the hearing date, Mr Brickhill agreed to that request. That conduct is not consistent with the allegation that Mr Brickhill ignored Mr Greenwood's request to vacate the hearing date.
In any event, a failure to respond within a few days to Mr Greenwood's request to vacate a hearing date, when that hearing date was more than two weeks away, would not constitute unsatisfactory professional conduct. It may have been the case, for example, that Mr Brickhill was awaiting instructions from his client in order to provide a response.
It appears that the basis for Mr Greenwood's complaint in respect of this allegation is that he claims that his holiday was ruined as a result of the stress of anticipating that he would need to prepare for the hearing of the appeal in the short time available after his return from leave. We note, however, that Mr Greenwood apparently did not attempt to contact Mr Brickhill by telephone from Pemberton where he was staying on holiday.
The correct and preferable decision is that there is no reasonable likelihood that Mr Brickhill would be found guilty of unsatisfactory professional conduct or professional misconduct arising from this allegation.
Alleged conduct of Mr Brickhill in bullying and coercing Mr Greenwood into agreeing to a listing date of 15 August 2007
Mr Greenwood submitted that after the hearing date of 27 June 2007 was vacated he 'was bullied and coerced by Mr Brickhill into a listing date of 15 August 2007'. In his evidence, Mr Greenwood told us that he was 'coerced' into accepting 15 August 2007 as the date for the hearing of the appeal. Mr Greenwood's evidence was that he spoke to Mr Brickhill by telephone in relation to the hearing date and Mr Brickhill bullied him, telling Mr Greenwood that he could make time for the hearing on 15 August 2007. Mr Greenwood submitted that this constituted 'premeditated harassment' by Mr Brickhill.
In his response filed in the Tribunal, Mr Brickhill denied that Mr Greenwood was bullied into providing his available dates.
Mr Greenwood's contention that he was bullied and coerced does not accord with the course of events which appear from the documents in evidence before us. By letter dated 25 June 2007, Mr Greenwood advised Mr Brickhill of the dates that he could be available for a hearing of the appeal in July and August 2007. The dates there set out included 15 August 2007. In response to that letter, Brickhills forwarded to Mr Greenwood a Minute of Consent Orders seeking to vacate the hearing date on 27 June 2007 and relist the appeal on the earliest of various dates, including 15 August 2007. Mr Greenwood signed that Minute on 25 June 2007. Having regard to the Minute of Consent Orders, the District Court vacated the hearing date and relisted the appeal for hearing on 15 August 2007.
The fact that Mr Greenwood sent the letter and signed the Minute expressing his agreement to hearing dates including 15 August 2007 is entirely inconsistent with his having been bullied or coerced into agreeing to a hearing on 15 August 2007.
The correct and preferable decision is that there is no reasonable likelihood that Mr Brickhill would be found guilty of unsatisfactory professional conduct or professional misconduct arising from this allegation.
j) Alleged conduct by Mr Brickhill in drawing out the appeal when it suited him and otherwise pressuring Mr Greenwood into a hearing at a time when he was unavailable for hearing
This allegation was based on the assertion that Mr Brickhill failed to prepare the appeal for hearing expeditiously, but that after the vacation of the 27 June 2007 hearing date, he bullied or coerced Mr Greenwood into agreeing to a hearing date of 15 August 2007. Mr Greenwood submitted that 'Mr Brickhill elected to draw the matter out as long as possible when it suited him but, when it didn't suit him, pressure me into a hearing at a time when I was unavailable for hearing, and when I had not time to consider the full appeal book and prepare my outline of submissions and prepare for the hearing'.
The evidence did not support this submission. It is clear that Mr Brickhill agreed to Mr Greenwood's request to vacate the 27 June 2007 hearing date. The hearing date of 15 August 2007 was one of a number of available dates forwarded to the District Court in the Minute of Consent Orders. As we have already noted, the Court listed the appeal for hearing on 15 August 2007 in reliance on that Minute.
As events transpired, the hearing date of 15 August 2007 also had to be vacated at Mr Greenwood's request, after he became unwell. Brickhills consented to that application. The appeal was ultimately heard on 14 December 2007.
The correct and preferable decision is that there is no reasonable likelihood that Mr Brickhill would be found guilty of unsatisfactory professional conduct or professional misconduct arising from this allegation.
k) Alleged abuse of process by Mr Brickhill in commencing and pursuing the appeal when it was wholly unmeritorious
As we have noted, the appeal was dismissed. Mr Greenwood submitted that it was apparent from the judgment of his Honour Judge Stevenson that the appeal was 'wholly unmeritorious and an abuse of legal process' because his Honour concluded that Mr Taylor had not demonstrated that there was any proper basis for interfering with the learned Magistrate's judgment.
In his response filed in the Tribunal, Mr Brickhill submitted that the appeal was against a decision which was believed to be wrong in fact and in law.
The fact that an appellant is unsuccessful on an appeal does not mean that the appeal lacks any merit or constitutes an abuse of process, or that the solicitor who files the appeal, on his client's instructions, is guilty of unsatisfactory professional conduct.
Mr Greenhill also submitted that it was apparent that the appeal lacked merit because the transcript of the proceedings in the Magistrates Court contained clear evidence that he had agreed to do work for Mr Taylor for a flat rate. Mr Taylor was entitled to challenge whether evidence of that kind was in fact before the Court, and whether it supported the conclusion reached by the learned Magistrate that he was liable to pay Mr Greenwood for the work done.
Had the appeal been wholly without merit, it is very likely that the Court would have said so. However, there is no observation of that kind in the reasons for decision of his Honour Judge Stevenson.
The correct and preferable decision is that there is no reasonable likelihood that Mr Brickhill would be found guilty of unsatisfactory professional conduct or professional misconduct arising from this allegation.
l) Alleged attempt by Mr Brickhill to mislead the District Court in relation to a case he cited in support of his submissions
During the course of the hearing of the appeal, Mr Brickhill referred the Court to the decision of the New South Wales Court of Appeal in Flett v Deniliquin Publishing Co Limited [1964-5] NSWR 383 (Flett). Mr Greenwood's evidence was that the decision was referred to in support of a submission that there was no evidence before the Magistrates Court of an appropriate or reasonable rate that Mr Taylor should pay to Mr Greenwood for work done by Mr Greenwood.
We note that Flett involved a quantum meruit claim. The Court held that the value of services rendered was to be assessed at the normal market rate or price prevailing at the time the services were rendered, and in some cases the parties' ineffective contract, or the degree of benefit conferred, may be looked at for this purpose: Flett at 385 386 (Herron CJ).
After the hearing of the appeal on 14 December 2007, Mr Greenwood wrote to the Court claiming that Mr Brickhill had misled the Court. A further hearing was held on 14 February 2008 so that Mr Greenwood would have the opportunity to make submissions in relation to Flett.
There is no doubt that a lawyer must not misrepresent the law to a court: Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 200. However, the material before us does not support the conclusion that Mr Brickhill misled the Court in relation to the Flett decision. The transcript of the hearing of the appeal was not produced in the review. However, if his Honour Judge Stevenson had formed the view that Mr Brickhill had misled the Court, it seems very likely that his Honour would have said so, either at the further hearing or in his reasons for decision. No finding was made by his Honour Judge Stevenson that Mr Brickhill had misled the Court in relation to the import of the Flett decision.
The correct and preferable decision is that there is no reasonable likelihood that Mr Brickhill would be found guilty of unsatisfactory professional conduct or professional misconduct arising from this allegation.
m) Conduct of Mr Brickhill in acting for Mr Taylor in the appeal and in the NAB litigation in light of information set out in an affidavit by Mr Greenwood concerning the conduct of Mr Taylor
Among the documents tendered by Mr Greenwood was a copy of an affidavit he swore on 1 February 2007 in the appeal (the February affidavit). In the February affidavit, Mr Greenwood sought leave to adduce further evidence which he set out in the February affidavit and in the documents annexed to it. Mr Greenwood deposed that the material was not available at the time of the hearing in the Magistrates Court.
In the February affidavit, Mr Greenwood made a number of allegations about Mr Taylor's character, and alleged improper conduct by Mr Taylor towards him, and in the proceedings in the Magistrates Court and the District Court. Those allegations are defamatory and scandalous and it is unnecessary to repeat them here.
In his evidence before us, Mr Greenwood expressed the view that the matters set out in the February affidavit should have been enough to put Mr Brickhill on notice that there were grave issues in relation to Mr Taylor's conduct as a witness. Mr Greenwood submitted that 'in such circumstances, it would surely be appropriate for a legal practitioner to cease to act for such a client'.
In Lawyers' Professional Responsibility, Dal Pont notes (at [17.120]:
Lawyers should remain alert to the importance of ensuring they can fulfil the duty of candour owed to the court. This may dictate bringing a degree of caution, even mild scepticism, to a client's narrative of events. They must take reasonable steps to verify a client's contentions, especially for serious allegations against another person. … If in doubt about the veracity of the instructions or their potential to mislead the court, a lawyer should press the client until properly satisfied that such potential is removed, and in the meantime not put submissions to the court while in doubt about their potential to mislead. The point may be reached where the lawyer's misgivings regarding a client's narrative of events means that he or she should withdraw from the representation. (footnote references omitted)
The question here is whether the allegations made by Mr Greenwood should have caused Mr Brickhill to become concerned about the veracity of Mr Taylor's instructions or about the evidence he had given in the Magistrates Court. Mr Greenwood did not suggest that Mr Brickhill had any personal knowledge of the matters referred to in Mr Greenwood's affidavit. That being the case, the only information available to Mr Brickhill which might have raised questions about the veracity of Mr Taylor's instructions or his evidence was an affidavit containing attacks on Mr Taylor's character which was sworn made by his opponent in the litigation. That information did not constitute a sufficient basis for Mr Brickhill to withdraw from representing Mr Taylor.
The correct and preferable decision is that there is no reasonable likelihood that Mr Brickhill would be found guilty of unsatisfactory professional conduct or professional misconduct arising from this allegation.
n) Conduct of Mr Brickhill in pursuing the appeal on the basis of allegations that Mr Greenwood had breached forensic accounting standards notwithstanding that the Institute of Chartered Accountants in Australia (ICAA) had found there was no basis for any action against Mr Greenwood
The transcript of the learned Magistrate's reasons for decision was before us (part of Exhibit 3). The dispute in the Magistrates Court concerned Mr Taylor's liability to pay Mr Greenwood's fees for the services he performed for Mr Taylor. The key issues in the dispute appear to have been whether there was a valid contract between the parties, or whether the agreement between Mr Taylor and Mr Greenwood was void because Mr Greenwood had sought a 'success fee' in the event that Mr Taylor was successful in the NAB litigation. Mr Taylor's case was that the ICAA's professional conduct rules prohibited an expert charging a success fee in those circumstances and the charging of the fee meant that the report could not be used in the NAB litigation. The learned Magistrate appears to have understood that in the event that the contract was void, Mr Greenwood sought payment for the work he did pursuant to a quantum meruit claim.
There was a reference to a success fee in a letter from Mr Greenwood to Mr Taylor dated 8 November 2005. Mr Greenwood claimed that Mr Taylor did not agree to the fee structure proposed in that letter and that therefore the letter did not represent their agreement.
The learned Magistrate held that Mr Taylor had not signed the proposed fee structure set out in Mr Greenwood's letter of 8 November 2005. However, he held that there was a valid contract between the parties that Mr Taylor would pay Mr Greenwood $165 per hour for the work he did. He also found that the contract was not for the preparation of a report which could be used as an expert report in litigation. The learned Magistrate did not make any finding as to whether the use of a success fee clause was impermissible, but he found that even if it was, the success fee clause could be severed from the balance of the contract.
The grounds of the appeal included that the learned Magistrate erred in fact and in law in finding that Mr Taylor had not engaged Mr Greenwood to prepare a report in the nature of an expert report that could be used in the NAB litigation, and that the learned Magistrate erred in fact and in law in failing to find that Mr Greenwood breached that contract by providing a report that could not be used in the NAB litigation, so that he ought to have found that Mr Greenwood was not entitled to any payment for his work. The particulars of this ground of the appeal included that there was evidence before the learned Magistrate that the use of success fees was forbidden by the ICAA and the attempt to charge a success fee called into question the author's independence and meant that the report could not be used in the NAB litigation.
Mr Greenwood submitted that no evidence was led in the Magistrates Court which established a breach of accounting standards by Mr Greenwood, and Mr Brickhill should not have pursued the appeal on this basis.
In addition, Mr Greenwood submitted that Mr Taylor made a complaint to the ICAA in relation to this matter, but that in December 2006, the ICAA advised Mr Greenwood that in view of his response to Mr Taylor's allegations, it had determined that there was no basis for any further disciplinary action against him.
In his response filed in the Tribunal, Mr Brickhill submitted that he had no reason to believe that Mr Greenwood had not breached the ICAA's professional conduct rules and that he was entitled to put Mr Taylor's version of events to the Court.
There was nothing before us to suggest that Mr Brickhill was aware that the ICAA had determined not to take any disciplinary action against Mr Greenwood. In any event, the District Court would not have been bound by the decision of the ICAA not to take disciplinary action.
Mr Brickhill was entitled to act on Mr Taylor's instructions to commence the appeal and to make submissions that the conclusions reached by the learned Magistrate were erroneous in fact or in law having regard to the evidence at the trial.
The correct and preferable decision is that there is no reasonable likelihood that Mr Brickhill would be found guilty of unsatisfactory professional conduct or professional misconduct arising from this allegation.
o) Conduct of Mr Brickhill in acting for Mr Taylor in the appeal when Mr Greenwood's work for Mr Taylor had assisted Mr Taylor in the NAB litigation
Mr Greenwood alleges that the work he did for Mr Taylor was of assistance to Mr Taylor in relation to the NAB litigation. Mr Greenwood contends that his work for Mr Taylor 'enabled him to save [Mr Taylor's farm] from being taken over by the National Australia Bank'.
Mr Greenwood considers that the work he performed for Mr Taylor assisted Mr Taylor to achieve a successful outcome in the NAB litigation, and that his work therefore was of value to Mr Taylor. That is, Mr Greenwood's complaint seems to be that Mr Brickhill should not have acted for Mr Taylor in litigation brought by Mr Greenwood to recover payment for the work he did.
No reason was advanced by Mr Greenwood as to why Mr Brickhill's representation of Mr Taylor in these circumstances constituted unsatisfactory professional conduct. We are unable to see any basis for the allegation. Mr Brickhill was entitled to act on Mr Taylor's instructions to commence the appeal and to make submissions that the conclusions reached by the learned Magistrate were erroneous in fact or in law having regard to the evidence at the trial.
The correct and preferable decision is that there is no reasonable likelihood that Mr Brickhill would be found guilty of unsatisfactory professional conduct or professional misconduct arising from this allegation.
p) Alleged suppression of discoverable documents by Mr Brickhill in the NAB litigation
Mr Greenwood alleges that in the NAB litigation, Mr Brickhill suppressed discoverable documents, or that he assisted Mr Taylor to suppress discoverable documents, namely a copy of the draft report he prepared for Mr Taylor.
It was apparent on the basis of the evidence before us that Mr Greenwood had no proper foundation for this allegation. The basis for the allegation was that Mr Greenwood was present during a directions hearing in the Supreme Court in relation to the NAB litigation, and heard Mr Brickhill tell the Court that the parties to the NAB litigation had agreed not to exchange forensic accounting evidence unless the matter went to trial. Mr Greenwood surmised that this meant that Mr Taylor must have formed the view that the draft report prepared by Mr Greenwood would harm his defence and that this was the reason why Mr Taylor did not wish to provide discovery of that document. In his evidence before us, however, Mr Greenwood accepted that he was not involved in the NAB litigation, nor was he directly involved in the exchange of documents in that litigation. Under crossexamination, he admitted that he had not seen the affidavit of discovery filed on Mr Taylor's behalf in the NAB litigation. Mr Greenwood accepted that he had no personal knowledge that Mr Brickhill assisted Mr Taylor to 'cover up' discoverable documents.
The correct and preferable decision is that there is no reasonable likelihood that Mr Brickhill would be found guilty of unsatisfactory professional conduct or professional misconduct arising from this allegation.
Further action in view of the Tribunal's findings on the review
The correct and preferable decision is that there is a reasonable likelihood that the Tribunal would find Mr Brickhill guilty of unsatisfactory professional conduct in respect of one of the allegations in the SAT complaint, namely that Mr Brickhill signed the certificate of correctness for the appeal book when he had not, in fact, inspected the originals of the documents comprising the appeal book. In respect of the balance of Mr Greenwood's allegations, we have reached the same conclusion as the LPCC.
In view of our decision, it is appropriate to set aside the decision of the LPCC on the complaint in relation to the allegation concerning the certificate of correctness. The question then arises whether we should substitute our own decision for that of the LPCC or send the matter back to the LPCC for its further consideration.
The preferable course is to set aside that part of the decision of the LPCC which relates to the allegation concerning the certificate of correctness, and to refer that part of the complaint to the LPCC for reconsideration in accordance with our reasons for decision. Having regard to the nature of that matter, this may be a case in which the LPCC would wish to give consideration to dealing with the matter under s 426 of the LP Act. However, that would require the LPCC to be satisfied of the matters set out in s 426(1), and for Mr Brickhill to consent to the exercise of power by the LPCC. For that reason, we will not make a direction about the manner in which the LPCC should deal with the matter.
Orders
We make the following orders:
1.The decision of the Legal Profession Complaints Committee made on 15 May 2009 in relation to that part of the complaint referred to in section (f) of the Tribunal's reasons is set aside.
2.The Legal Profession Complaints Committee is to reconsider the complaint against the practitioner in accordance with these reasons for decision and the Legal Profession Act 2008 (WA).
3.Save as referred to in order 1, the decision of the Legal Profession Complaints Committee made on 15 May 2009 is affirmed.
I certify that this and the preceding [134] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J PRITCHARD, DEPUTY PRESIDENT
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