KAKAY and LEGAL PROFESSION COMPLAINTS COMMITTEE
[2017] WASAT 40
•6 MARCH 2017
KAKAY and LEGAL PROFESSION COMPLAINTS COMMITTEE [2017] WASAT 40
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 40 | |
| LEGAL PROFESSION ACT 2008 (WA) | |||
| Case No: | VR:156/2016 | 12 OCTOBER 2016 | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) MS C WALLACE (SENIOR MEMBER) MS R MOORE (MEMBER) | 6/03/17 | |
| 33 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | IBRAHIM BABA KAKAY LEGAL PROFESSION COMPLAINTS COMMITTEE NIGEL GEOFFREY PAKES BRYAN MICHAEL FRANCE |
Catchwords: | Leave Unreasonable complaint |
Legislation: | Legal Profession Act 2008 (WA), s 409(1), s 415(2)(b), s 425, s 435, Pt 13, Div 6 |
Case References: | Hunter and Legal Profession Complaints Committee [2015] WASAT 25 Neil and Legal Professional Complaints Committee [2010] WASAT 39; (2010) 70 SR (WA) 307 SJX and Legal Profession Complaints Committee [2012] WASAT 154 |
Orders | 1. The application is dismissed.,2. The hearing date set for 3 April 2017 is dismissed. |
Summary | The applicant, a legal practitioner who acted for the plaintiff, complained about the conduct of two legal practitioners in their conduct of a defence in the District Court of Western Australia. ,The Legal Profession Complaints Committee dismissed the complaint and held that it was unreasonable. ,In the circumstances, the defence was conducted entirely appropriately by the two legal practitioners. ,The applicant sought a review of the Committee's decision. The applicant required leave to proceed. ,Leave was refused by the Tribunal. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : KAKAY and LEGAL PROFESSION COMPLAINTS COMMITTEE [2017] WASAT 40 MEMBER : JUSTICE J C CURTHOYS (PRESIDENT)
- MS C WALLACE (SENIOR MEMBER)
MS R MOORE (MEMBER)
- Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
NIGEL GEOFFREY PAKES
Second Respondent
BRYAN MICHAEL FRANCE
Third Respondent
Catchwords:
Leave - Unreasonable complaint
Legislation:
Legal Profession Act 2008 (WA), s 409(1), s 415(2)(b), s 425, s 435, Pt 13, Div 6
Result:
Application dismissed
Summary of Tribunal's decision:
The applicant, a legal practitioner who acted for the plaintiff, complained about the conduct of two legal practitioners in their conduct of a defence in the District Court of Western Australia.
The Legal Profession Complaints Committee dismissed the complaint and held that it was unreasonable.
In the circumstances, the defence was conducted entirely appropriately by the two legal practitioners.
The applicant sought a review of the Committee's decision. The applicant required leave to proceed.
Leave was refused by the Tribunal.
Category: B
Representation:
Counsel:
Applicant : N/A
First Respondent : N/A
Second Respondent : N/A
Third Respondent : N/A
Solicitors:
Applicant : N/A
First Respondent : N/A
Second Respondent : N/A
Third Respondent : N/A
Case(s) referred to in decision(s):
Hunter and Legal Profession Complaints Committee [2015] WASAT 25
Neil and Legal Professional Complaints Committee [2010] WASAT 39; (2010) 70 SR (WA) 307
SJX and Legal Profession Complaints Committee [2012] WASAT 154
Introduction
1 On 28 September 2016, Mr KaKay, a legal practitioner, filed an application seeking a review of the Legal Profession Complaints Committee's (the Committee) decision to dismiss his complaint against Mr Nigel Geoffrey Pakes and Mr Bryan Michael France.
The legislation and the authorities
2 Section 409(1) of the Legal Profession Act 2008 (WA) (the LP Act) provides that a complaint may be made under Pt 13 about a legal practitioner's conduct. Division 6 of Pt 13 of the LP Act provides for the Committee to carry out an investigation. Section 425(a) of the LP Act provides:
After an investigation of a complaint against an Australian legal practitioner is completed, the Complaints Committee may dismiss the complaint if satisfied that
(a) there is no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct[.]
3 The Tribunal repeats the following principles as set out in Hunter and Legal Profession Complaints Committee [2015] WASAT 25:
4 Section 435 of the LP Act provides:
(1) Subject to subsection (2), a person aggrieved by -
(a) a decision of the Complaints Committee to dismiss a complaint[,]
…
may apply to the State Administrative Tribunal for a review of the decision.
(2) If the Complaints Committee, in its reasons for its decision, specifically finds the complaint -
(a) to be trivial, unreasonable, vexatious or frivolous[,]
…
the person aggrieved cannot apply to the State Administrative Tribunal for a review of the decision without the leave of the Tribunal.
17 The Tribunal does not have jurisdiction to consider a complaint that was not made to the Committee, because the Tribunal may only review 'a decision of the Complaints Committee to dismiss a complaint'. If a complaint has not been made to the Committee, it could not have been dismissed by the Committee, and the Tribunal does not, therefore, have jurisdiction in relation to it. (See also Quinlivan and Legal Profession Complaints Committee [2012] WASAT 98 at [25] and [27] - [28] in which the Tribunal determined that 'there is no basis for a grant of leave' (at [28]) to seek review of a decision under s 435(2) of the LP Act in relation to a complaint that was not considered by the Committee).
…
Applicable principles
20. As the Tribunal said in Vella and Bowden [2011] WASAT 56 at [6] (Vella):
In reviewing the Complaints Committee's decision, the function of the Tribunal is to conduct a hearing de novo, that is, to consider each of the complaints … and to determine whether there is any reasonable likelihood that the Tribunal might, on referral to it [by the Committee] of the complaints [under s 428 of the LP Act], find [the practitioner] guilty of either unsatisfactory professional conduct or professional misconduct.
21 'Unsatisfactory professional conduct' is defined in s 402 of the LP Act inclusively as follows:
402. Unsatisfactory professional conduct
For the purposes of this Act -
'unsatisfactory professional conduct' includes 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.
403. Professional misconduct
(1) For the purposes of this Act -
'professional misconduct' includes -
(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.
(2) For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.
23. The meaning of the expression 'reasonable likelihood' in s 425 of the LP Act was discussed by the Tribunal in Greenwood and Legal Profession Complaints Committee [2010] WASAT 31 (Greenwood) at [27] - [29] as follows:
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 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).
It is clear that the legislature did not intend that all aggrieved complainants should have an unfettered right to seek review regardless of the Committee's view as to the merits of the complaint or regardless of whether a complainant had any direct personal interest in the matter the subject of complaint. Section 435(2) is clearly designed to restrict applications for review where the complaint is being dismissed because the Committee forms the view that it is trivial, unreasonable, vexatious or frivolous, or where the complainant does not have, or did not have, a direct personal interest.
In other contexts where leave is required before bringing a matter to the Tribunal, the Tribunal has adopted the criteria for the grant of leave identified by the full court in [Wilson v Metaxas [1989] WAR 285] - for example, see Tangent Nominees Pty Ltd and Edwards [2005] WASAT 119. The criteria are that:
1) it must be shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave; and
2) in addition that substantial injustice would be done by leaving the decision unreversed. What is substantial injustice must depend on all the circumstances of the case.
In my view, those principles are appropriate to the question of leave under s 435(2) of the LP Act. In other words, an applicant under s 435(2) must demonstrate that the Committee's decision to dismiss the complaint was wrong, or at least attended with sufficient doubt to justify leave, and that a substantial injustice would be done by leaving the decision unreversed.
Evidence
7 The Committee's s 24 Bundle of Documents has been admitted as Exhibit A.
Mr KaKay's complaint
8 Mr KaKay initiated his complaint to the Committee by a series of emails (Exhibit A pages 389393). The substance of those emails is set out in the Committee's letter of 5 January 2016 below.
Letter from the Committee to Mr KaKay dated 5 January 2016
9 The Committee responded to Mr KaKay's emails of 15 October 2015 by letter dated 5 January 2016.
Dear Mr Kakay
RE: MR B M FRANCE AND MR N G PAKES
Thank you for your emails dated 15 October 2015 and attachments. I confirm I discussed my preliminary views with you on 29 October 2015. These preliminary views are further set out below.
I confirm on 27 March 2015 you contacted the Legal Profession Complaints Committee (Committee) regarding Bryan France and Nigel Pakes' conduct, representing the defendant, in relation to your client's District Court debt recovery proceedings (proceedings). You complained the practitioners had sent threatening and intimidating emails and had filed an application for security for costs. On 23 June 2015 you withdrew your complaint as you informed the Committee that Registrar Harman had on 10 June 2015 dismissed the defendant's application for security for costs.
On 15 October 2015 you contacted the Committee and as outlined in your several emails you complained:
1. Mr France and Mr Pakes failed to provide discovery and filed a defence in the proceedings 'which had no real basis' and prevented you from filing an application for summary judgment;
2. Mr France and Mr Pakes 'vigorously' pursued an application for security for costs at a time when their client, Perth Textiles International Pty Ltd (defendant), had filed an application at ASIC to wind up the company;
3. Murcia Pestell Hillard (the firm) no longer represent the defendant 'who has made a complaint against them for wrong professional advice in conducting their matter'; and
4. A director of the defendant 'threatened' your client.
In the numerical order as they appear above, I respond as follows:
1. You have provided a copy of the defence filed 29 January 2015 (defence) and amended defence filed 11 February 2015 (amended defence). You have provided no other information to support your allegation that the firm did not provide discovery and that the defence 'had no real basis'.
Discovery is an obligation on the client not the practitioner. You have not indicated what steps have been taken by you to compel the defendant to provide discovery.
It is not clear what you are asserting about being prevented from filing an application for summary judgment.
You have also provided no information to support why you say you could not file an application for summary judgment after receiving the amended defence as presumably the defence was a holding defence (as is allowed) and the amended defence provided particulars of the defence of the claim.
Further it appears that the time between filing the defence and amended defence was not significant given you were not prepared to concede to the practitioner's request for an extension of time. Nor is it apparent what prejudice was incurred by your client.
In circumstances where the case (and the defence of the case) is being actively pursued in court proceedings such that there is likely to be a court determination it is not appropriate for the Committee to be concurrently an alternative forum to attempt to agitate the case. It is therefore not appropriate at this time that the Committee consider your complaint that the defence had 'no real basis'.
2. You have provided a copy of the chamber summons dated 24 September 2015 by which the firm sought orders that it cease acting for the defendant and Nigel Rakes' affidavit dated 24 September 2015 sworn in support of the application. Annexed to Mr Rakes' affidavit is a copy of a company search (ASIC company search) of the defendant which confirms that on 16 March 2015 an application was filed at ASIC to wind up the defendant (wind up application), however there is no evidence to support your claim that the application was made by the directors of the defendant. The ASIC company search confirms the wind up application was dismissed on 20 April 2015.
I do not have a copy of the defendant's application for security for costs but the Affidavit of Bryan France sworn in support of the application is dated 9 March 2015. Your affidavit sworn in opposition of the application is dated 23 March 2015. I understand the application was heard and determined on 10 June 2015.
On 5 February 2015, prior to filing the amended defence, the practitioner wrote to you requesting that your client provide the defendant with security for 'approximately ... $100,000.00' or alternatively documentation demonstrating that your client had assets within Australia capable of 'satisfying any adverse costs orders that maybe made against them'. The letter is dated prior to the wind up application, a copy of which I have not received.
By the time the defendant's application for security for costs was heard and determined by the presiding Registrar, any impediment to the defendant being able to maintain the application had been removed, namely, the dismissal of the winding up application.
3. The Committee cannot direct a practitioner as to how to conduct a matter and, without more, it is not appropriate that the Committee comment on the firm's application to get off the record. Furthermore, it remained with the discretion of the presiding Registrar to be satisfied that sufficient grounds exist to support the application. Perhaps you could advise the Committee of the outcome of the hearing on 23 October 2015 and whether the presiding Registrar made any comments specifically regarding the practitioner's conduct. If so, the transcript of the proceedings would assist.
4. You have not provided any supporting information. I remind you the Committee regulates the conduct of legal practitioners only. The Committee is therefore unable to consider your concern about the conduct of a non lawyer.
Please consider my comments and let me know if you still maintain any or all your complaints.
(Exhibit A pages 394396)
Mr KaKay's response
10 On 5 January 2016, Mr KaKay informed the Committee that he wished to maintain the complaints. He elected not to provide any further information or documentation (Exhibit A page 397).
The respondent practitioners' responses
11 In March 2016, the Committee sought a response from Mr Pakes and Mr France to Mr KaKay's complaint (Exhibit A pages 402405).
12 In July 2016, the scope of the complaint was reduced by Mr KaKay to the practitioners' conduct in:
1. filing a defence on 29 January 2015 which had no real basis; and
2. failing to provide discovery of documents in accordance with District Court Rule 46(4)
(Exhibit A page 406).
13 Mr Pakes responded by letter dated 17 August 2016:
I refer to your letter dated 27 July 2016, in which you request me to make submissions in relation to the 2 complaints of unsatisfactory professional misconduct or professional misconduct.
My understanding is that the complaint is made against me in my personal capacity, and not against Murcia Pestell Hillard Lawyers ('MPH'), and the submissions below are made on that basis.
Filing a defence on 29 January 2015 in the action which had no real basis
The relevant background to this complaint is as follows:
1. The plaintiffs Statement of Claim in the Action dated 23 December 2014 was served on MPH on 15 January 2015.
2. The defendant's defence was due to be filed by 29 January 2015, failing which the defendant would have been exposed to the risk of having judgment in default of defence entered against it.
3. I was on leave over the Christmas break from 24 December 2014 until 12 January 2015.
4. As at 29 January 2015, the defendant's substantive defence was not finalised.
5. On 29 January 2015, I had a telephone conversation with the plaintiff's lawyer Mr Ibrahim Kakay, in which:
5.1. I requested on behalf of the defendant a 7 day extension of time in which to file its defence.
5.2. Mr Kakay made a statement to the effect that he did not think he would want to incur the cost of an application to set aside default judgment on conditions, but did not want to give an undertaking as he did not have instructions.
5.3. I stated that I could not expose my client to the risk of default judgment, so I would file a brief defence, which would be amended later.
6. Later, on 29 January 2015:
6.1. I caused a brief defence to be filed.
6.2. I forwarded an email to Mr Kakay:
(a) confirming the matters we had discussed on the telephone earlier that day,
(b) attaching a copy of the defence filed that day,
(c) in which I stated that I anticipated the defence would be amended to more fully plead my client's defence within the following 7 days.
A copy of that email and the attachment is attached hereto.
I respectfully submit that the circumstances described above concerning the filing of the defendant's defence on 29 January 2015, does not constitute a basis for any adverse findings concerning my professional conduct, or for any disciplinary action to be taken against me. That is particularly so in circumstances where on 11 February 2015 an amended defence was filed, which is not the subject of any complaint concerning the basis of the matters pleaded therein.
Failing to provide discovery of documents to the complainant in accordance with District Court Rule 46(4) WA
By operation of DCR 46(4), the defendant (as distinct from MPFI or any of its officers or employees) was due to provide discovery by on or about 30 March 2015 (being 60 days after the filing of the initial defence on 29 January [2015]).
In short, the reason why discovery was not provided by the defendant was that prior to 10 June 2015, the plaintiff was agitating the issue of summary judgment, and the defendant was agitating the issue of security for costs. The issue of security for costs was determined on 10 June 2015, when the defendant's application for security was dismissed. The plaintiffs filed and served an Amended Statement of Claim on 24 August 2015. MPH came off the record on or about 12 October 2015.
The relevant timeline was as follows:
1. On or about 5 February 2015, MPH wrote to Kakay Legal raising the issue of security for costs (based on the facts that the plaintiffs were based in Nigeria and were not resident, and did not hold assets within Australia), and thereafter attempted to engage in conferral with Kakay Legal in relation to that issue. Such conferral did not result in the narrowing of any issues in relation to security for costs.
2. A directions hearing took place before Principal Registrar Melville on 6 February 2015, at which the following orders were made:
2.1 Within 14 days the plaintiff file and serve any application for summary judgment and/or extension of time to bring the summary judgment application, to be returnable 27 February 2015.
2.2 Within 14 days the defendant file and serve any application for further and better particulars and security for costs returnable 27 February 2015.
2.3. The directions hearing be adjourned to 27 February 2015 at 10.00 am.
3. On or about 25 February 2015, a chamber summons for orders for an extension of time to bring a summary judgment application was filed on behalf of the plaintiff.
4. The matter appeared before Principal Registrar Martino on 27 February 2015 at which time the following orders were relevantly made:
4.1. Time for hearing the plaintiffs' chamber summons dated 25 February 2015 [for extension of time to bring a summary judgement application] be abridged.
4.2. The time by which the plaintiffs bring any summary judgment application be extended to 10 March 2015.
4.3. The time by which the defendant brings any application for security for costs and/or answers to further and better particulars be extended to 10 March 2015.
5. We have on file a file note recording a conversation between Bryan France and Mr Kakay on 6 March 2015 which appears to record that on that day Mr France and Mr Kakay discussed the issue of the defendant's discovery, with Mr France stating to Mr Kakay that the defendant will deal with discovery once security for costs is dealt with, and that the defendant intends to comply with its obligations of discovery, but requires that the security issue be dealt with first.
6. On or about 9 March 2015, a chamber summons for security for costs was filed on behalf of the defendant.
7. The plaintiffs ultimately did not proceed with a summary judgment application. I cannot recall the precise date on which the defendant became aware that the summary judgment application would not be pursued, but suspect this was in March or April 2014 (before 14 April).
8. The hearing of the defendant's security application was on 14 April 2015 before Deputy Registrar Harman. The hearing was not completed on that date, and was adjourned part-heard. So far as I am aware (although I have not reviewed any transcript) the plaintiffs did not raise or seek orders in relation to the issue of discovery by the defendant at that hearing.
9. The hearing of the security for costs application was continued before Deputy Registrar Harman on 10 June 2015, at which time the application was dismissed. In dismissing the defendant's application for security, Registrar Harman made a comment to the effect that 'it would be of some utility, if the action proceeds, if thought could be given to tidying up the statement of claim'. That indicates that the issue of pleadings was not closed at that point in time (which accords with my general recollection of matters, although I have not reviewed any transcript of the proceedings on 10 June 2015).
10. On 24 August 2015, Mr Kakay served by email a copy of the plaintiffs' Amended Statement of Claim. In that email he requested the defendant to send its amended defence and discoverable documents "as soon as you can".
11. Around that time MPH fell into dispute with the defendant regarding unpaid fees and various allegations by the defendant (which MPH rejected). The content of the relevant communications are privileged.
12. MPH filed an application for an order that MPH had ceased acting for the defendant on or about 24 September 2015. An order to that effect was made by the Court on 8 October 2015.
13. Our time recording records indicate that Bryan France's involvement on the file commenced on 3 February [2015] (ie, subsequent to the filing of the defence on 29 January 2015). Mr France ceased employment with this firm on 24 April 2015.
The reasons that discovery of documents was not provided by the defendant:
(a) prior to 10 June 2015 was because:
(i) until in or around March or April 2015 the plaintiffs were proceeding with a summary judgment application; and
(ii) the defendant was proceeding with an application for security for costs (which was disposed of on 10 June 2015);
(b) following 10 June 2015 was because:
(i) MPH did not have instructions to attend to discovery by the defendants;
(ii) MPH had not been paid fees that were due and payable by the defendant;
(iii) in or around late August and September 2015, MPH and the defendant fell into dispute regarding MPH's outstanding fees and complaints made by the defendant (as noted in the affidavit sworn by me on 24 September 2015 which Mr Kakay refers to in his letter dated 11 April 2016).
It is relevant to note that prior to MPH ceasing to act, the plaintiffs did not take any steps to seek an interlocutory order compelling the defendant to provide discovery, notwithstanding there were appearances before the Court on 6 February, 27 February, 14 April and 10 June 2015.
I respectfully submit that the fact that, in the circumstances described above, the defendant did not provide discovery of documents to the plaintiff prior to MPH coming off the record in the Action, does not constitute a basis for any adverse findings concerning my professional conduct, or for any disciplinary action to be taken against me.
If you require any further information concerning the above matters, please contact me.
(Exhibit A page 407410)
14 Mr France responded by letter dated 17 August 2016:
Complaint by Mr Ibrahim Kakay
I refer to your letter to me dated 27 July 2016.
Terms used in this letter, which have been defined in your letter, are to be ascribed the same meaning as that given to them in your letter, unless expressly defined otherwise.
My response to the matters complained of by the Complainant is set out below. I see no reason why my response should not be forwarded to the Complainant.
1. Filing a defence on 29 January 2015 in the action which had no real basis
1.1 I assumed conduct of the action on behalf of the client on or about 3 February 2015.
1.2 As a junior solicitor employed by the firm I was subject to the supervision and control of the firm's partners. Throughout my involvement in the action my supervisor was Nigel Pakes (Nigel), who was and remains a partner of the firm.
1.3 Notwithstanding that I did not have conduct of the action when the defence the subject of the complaint was filed, I note that on Thursday 29 January 2015 Nigel sent the Complainant an email (attached) which, inter alia, stated words to the following effect:
a) He had spoken with the Complainant earlier that day and requested that the Complainant's client grant the firm's client a 7 day extension to file a defence;
b) The Complainant had stated to him that he was not prepared to provide an undertaking that he would not enter default judgment within that timeframe;
c) In the absence of an undertaking from the Complainant not to enter default judgment within the requested timeframe, Nigel was not prepared to expose his client to the risk of default judgment being entered; and
d) Given the aforementioned matters, the firm entered a brief defence which would be amended to more fully plead the firm's client's defence, and Nigel anticipated that this would occur within the next 7 days.
1.4 I understand that the following day the Complainant unsuccessfully attempted to enter default judgment against the client.
1.5 On or about 11 February 2015 the firm filed and served an amended defence which set out the client's defence more fully.
2. Failing to provide discovery of documents to the Complainant in accordance with Rule 46(4) of the District Court Rules 2005 (WA)
2.1 On or about 5 February 2015 the firm wrote to the Complainant and requested that the Complainant's client provide security for costs, as the Complainant's client was domiciled outside of Australia and did not hold any assets in the jurisdiction.
2.2 The Complainant's client refused to provide security for costs.
2.3 On 6 March 2015 at approximately 4.54 pm I received a telephone call from the Complainant. A copy of my file note from that conversation is attached.
2.4 Words to the following effect were exchanged between the Complainant and me during this telephone conversation:
a) The Complainant wanted to confer for the purposes of discovery under Order 36 of the Supreme Court Rules 1971 (WA);
b) I stated to the Complainant that providing discovery was premature at this time as my client intended to make an application for security for costs, therefore it did not wish to risk incurring fees that it was not able to recover;
c) The Complainant asked me whether I was refusing to provide discovery, to which I answered that my client intended to comply with its discovery obligations, however its application for security was required to be dealt with first.
2.5 Between 27 February 2015 and 10 March 2015 the client made a formal application to the District Court of Western Australia (the Court) seeking orders that the Complainant's client provide security for costs.
2.6 On 14 April 2015 the parties appeared before Deputy Registrar Harman in the Court, during which the client's application for security for costs was part-heard and an order made adjourning the hearing.
2.7 This was one of my last substantive involvements in the action. I ceased employment with the firm on 24 April 2016 and have since relocated to Melbourne.
I trust that the above will be of assistance to you.
(Exhibit A page 411413)
The Committee's decision to dismiss Mr KaKay's complaint
15 The Committee wrote to Mr KaKay on 9 September 2016 dismissing his complaint:
Your complaint was considered by the Committee at a recent meeting.
After a careful consideration of the matter the Committee resolved to dismiss the complaint against Mr France and Mr Pakes because it was satisfied that there is no reasonable likelihood that either of the practitioners would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct.
A statement of the Committee's reasons for its decision to dismiss the complaint is as follows:
1. In December 2014, the complainant Mr Kakay, commenced acting for Oakbase Global Ltd and its director, Prince Martin (plaintiffs).
2. On or about 8 December 2014, Mr Kakay issued a writ on behalf of the plaintiffs in the District Court against Perth Textiles International Pty Ltd (defendant) commencing District Court Action No. 4030 of 2014 (proceedings). In the proceedings the plaintiffs claimed the return of US$58,491.00 paid to the defendant pursuant to an agreement for the purchase of second hand clothing.
3. On 23 December 2014, Mr Kakay filed a statement of claim in the proceedings and on 15 January 2015 served it on the defendant's solicitors, Murcia Pestell Hillard Lawyers (MPH). The defendant's defence was due to be filed on or by 29 January 2015.
4. Mr Pakes, a principal at MPH, contacted Mr Kakay on 29 January 2015 to request a 7 day extension of time in which to file and serve a defence. According to Mr Pakes, in that discussion Mr Kakay said he was not in a position to agree to an extension as he was not in possession of instructions, and he was not prepared to provide an undertaking not to enter default judgment within the 7 day time frame.
5. Later on 29 January 2015, MPH, on behalf of the defendant, filed a brief 'holding defence' in the proceedings (holding defence) simply denying the main allegations in the statement of claim. The holding defence was served on Mr Kakay on 29 January 2015 with a covering email from Mr Pakes to Mr Kakay explaining that he was filing the holding defence as he did not want to expose his client to the risk of default judgment being entered and the holding defence would be amended to fully plead his client's case.
6. Also on 29 January 2015, Mr Kakay unsuccessfully sought to have default judgment entered against the defendants.
7. On or about 11 February 2015, MPH filed an amended defence on behalf of the defendant and served it on Mr Kakay. The amended defence fully pleaded the defendant's defence to the plaintiffs' claim, and is not the subject of complaint.
8. On or about 5 February 2015, Mr France, an employed solicitor at MPH, wrote to Mr Kakay requesting that the plaintiffs provide security for costs to the defendant in the amount of $100,000 in accordance with the defendant's draft bill of costs enclosed with the letter, or alternatively that the plaintiffs demonstrate to the defendant's satisfaction that they hold assets in Australia to satisfy any costs order that may be made against them in the proceedings.
9. On or about 6 March 2015, Mr France received a telephone call from Mr Kakay. According to Mr France, the substance of that conversation was that Mr Kakay wanted to confer for the purposes of discovery to which Mr France's response was that the defendant was preparing to make an application for security for costs and did not want to incur further fees on discovery until the issue of security for costs was decided.
10. The plaintiffs refused to provide security for costs in accordance with MPH's letter dated 5 February 2015. On or about 9 March 2015, MPH on behalf of the defendant filed and served an application for security for costs to be heard by the Court on 14 April 2015 (the Application).
11. The Application was part heard before Deputy Registrar Harman on 14 April 2015 when it was adjourned to 10 June 2015 for further submissions. At the hearing on 10 June 2015, the Application was dismissed. In dismissing the Application, Registrar Harman made comment that 'it would be of some utility, if the action were to proceed, if some thought could be given to ... tidying up the statement of claim'.
12. On or about 24 August 2015, Mr Kakay filed and served by email the plaintiffs' amended statement of claim. In the covering email, Mr Kakay requested that the defendant send its amended defence and discoverable documents 'as soon as possible'. At or around this time, MPH fell into dispute with the defendant regarding unpaid fees and filed an application on or about 24 September 2015 seeking an order declaring that it ceased to act for the defendant, which order was subsequently made on 8 October 2015.
13. As at the time MPH ceased to act for the defendant, the defendant had not provided discovery to the plaintiffs.
14. Mr Kakay has complained that Mr Pakes and Mr France filed the holding defence on behalf of the defendant when it had no real basis, and that they failed to ensure that discovery of documents was provided to the plaintiffs in accordance with Rule 46(4) of the District Court Rules 2005 (WA) (Rule 46(4)). District Court Rule 46(4) provides that discovery must be given by all parties within 60 days after a defence.
15. The Committee noted that the holding defence was filed in order to protect the defendant's interests in circumstances where Mr Kakay and his clients contributed to the need for a holding defence to be filed by not agreeing to the defendant's reasonable request for an extension of time for 7 days to file a defence or, in the case of Mr Kakay, to provide an undertaking not to enter default judgment within the 7 day extension period.
16. Mr Pakes, who prepared and caused the holding defence to be filed, was required to act in the best interests of his client, which in these circumstances meant filing a defence protecting his client's interests until a full defence could be filed. The necessity for taking this step was borne out by the plaintiffs' unsuccessful attempt to enter default judgment against the defendant on 29 January 2015.
17. Mr Pakes also ensured that Mr Kakay was informed at the time the holding defence was filed that an amended defence would be filed, and the amended defence was filed within a reasonable period of time.
18. The Committee considered that Mr Pakes acted appropriately in filing the holding defence, and is satisfied that there is no reasonable likelihood that he would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct.
19. In respect of Mr Kakay's second allegation that Mr Pakes and Mr France failed to ensure that the defendant provide discovery of documents to the plaintiffs in accordance with Rule 46(4), the practitioners explained that the initial delay in providing discovery within the 60 days after the holding defence was filed was due to the defendant not wanting to incur further costs until the Application had been determined, which occurred on 10 June 2015. Mr Kakay was informed by Mr France on 6 March 2015 that discovery was not being provided for this reason. Mr France left his employment with MPH on 24 April 2015 prior to the Application being determined.
20. It appears that following the determination of the Application Mr Pakes awaited the filing and service of the amended statement of claim by the plaintiffs, as suggested by Deputy Registrar Harman at the hearing of the Application, which was filed and served on 24 August 2015. Although on 24 August 2015 Mr Kakay requested that discovery be provided as soon as possible, at or around this time, MPH fell into dispute with the defendant regarding unpaid fees and ceased acting for the defendant.
21. Although the defendant did not give discovery to the plaintiffs in compliance with the time period set out in Rule 46(4), there was reasonable justification for the practitioners not ensuring that the defendant did so while the Application had yet to be determined. Mr Kakay was made aware by Mr France during their telephone conversation on or about 6 March 2015 that discovery was to be delayed for this reason.
22. Practitioners are under an obligation to not perform work in such a manner as to increase the proper costs to a client: Rule 7(h) of the Legal Profession Conduct Rules 2010. If the defendant had been successful in the Application and the plaintiffs had been unable to comply with any security ordered to be provided, then the costs of preparing discovery would have been unnecessarily incurred.
23. After the Application was determined, and in light of Deputy Registrar Harman's suggestion that an amended statement of claim should be filed, it was again reasonable for Mr Pakes to delay arranging for the defendant to give discovery until the pleadings were in final form. Once MPH ceased to act for the defendant, which occurred around, or shortly after, the time that the amended statement of claim was filed and served, any failure to comply with Rule 46(4) was the sole responsibility of the defendant.
24. Although the practitioners did not ensure that the defendant complied with the time period set out in Rule 46(4) for giving discovery, for the reasons set out above, at least for the period up until late August 2015 there was a reasonable basis for that delay. After that time, given that MPH ceased to do work for the defendant and then ceased to act for the defendant, any delay on tire part of the defendant was tire defendant's responsibility. For these reasons, the Committee is satisfied that there is no reasonable likelihood that either of the practitioners would be found guilty by tire State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct.
Finding complaint is unreasonable
25. As set out above, the reason for the holding defence needing to be filed to protect the defendant's interests arose as a direct result of the requested extension of time for filing the defence not being agreed to by Mr Kakay and his clients. Also, at all times Mr Kakay was aware that Mr Pakes intended to file a full defence on behalf of the defendant and that that step would be taken within a reasonable period.
26. In respect of late provision of discovery, as a practitioner, Mr Kakay should be aware that if a party to proceedings does not comply with a time period under court rules for giving discovery the appropriate steps to take are to raise the non-compliance with the solicitors for the other party and, if there is no reasonable basis for the delay, to apply to the Court for an order that discovery be provided. Mr Kakay did contact MPH and. was made aware of the reason for the initial delay due to the anticipated filing of the Application. Mr Kakay did not request discovery again until 24 August 2015 by which time MPH was in dispute with the defendant and, shortly afterwards, ceased to act. By the time Mr Kakay first raised this allegation of complaint with the Committee on 15 October 2015, he was aware from MPH's application for an order declaring that MPH ceased to act for the defendant that MPH had ceased acting for the defendant in or about early September 2015. The appropriate action for the Mr Kakay to have taken in these circumstances was to have applied to the Court for an order that the defendant provide discovery.
27. The Committee noted that Mr Kakay's complaint was made following formal notification to him by the Committee on 17 September 2015 of a complaint by Mr France against him concerning his conduct in connection with the proceedings, with Mr Kakay being requested to provide submissions in respect of Mr France's complaint by 8 October 2015. The Committee was concerned that the timing and nature of Mr Kakay's complaint suggested that the motivation for the complaint may have been more in retaliation to the complaint by Mr France against MrKakay than a genuine concern that professional standards were not being met. Regardless, the Committee considered that the matters the subject of the complaint were matters that should have been dealt with professionally between the parties - and in the proceedings themselves. The Committee also noted that similar sentiments were expressed to Mr Kakay by the Committee's Rapid Resolution Team yet he still maintained the above matters of complaint.
28. Whilst it is important for the maintenance of professional standards and ethics for practitioners to refer appropriate matters to the Committee, practitioners need to be mindful of their professional obligations to other practitioners not to make complaints without a proper basis. Further, practitioners need to be careful not to cause an unnecessary diversion of the Committee's resources to investigate and determine allegations of impropriety (which the Committee considered had occurred in this matter).
29. For these reasons the Committee specifically finds the complaint to be unreasonable.
Mr KaKay's grounds for seeking review
16 In his application, Mr KaKay set out his grounds for seeking review of the Committee's decision:
1. The LPCC demonstrated bias by failing to consider the contents of the affidavit of Mr Nigel Pakes sworn to on 24 September 2015 in which he admitted the complaints made against him and his firm for the advice provided to the Defendant, which matter formed the basis of the applicant's complaint as it supports the matters of information and belief held by the applicant on deposing to an affidavit of 23 March 2015.
2. The LPCC failed to determine the ethical basis on which Messrs France and Pakes could file a defence and Amended Defence that had no reasonable prospects of succeeding.
3. The LPCC refused to enquire into the applicant's complaints of the threats made against him by Mr Nigel Pakes in January 2015 after he had sought to enter a default judgment against their clients.
4. The LPCC failed to enquire and determine [if] Messrs France and Pakes had sought to unnecessarily prolong the District Court matter by refusing to provide discovery and pursued the application for security that was subsequently dismissed with costs ordered against their client.
5. The Committee failed to give procedural fairness to the applicant by demanding copies of all the applicant's file while the matter was ongoing granted privilege to Mr Nigel Pakes in relation to his affidavit of 24 September 2015.
6. The Committee refused to allow the applicant time to attend to his medical condition and deal with matters before the LPCC afterwards.
7. The decision ought to be reviewed because of its tendency to have a significant impact on the market and on national and international investor confidence in doing business in Australia.
8. The decision is likely to have an effect on the interests of the applicant to continue working and provide for his young family in Australia.
9. The decision was unreasonable in the Wednesbury sense.
10. The LPCC failed to take into account matters which it ought to have considered in the interests of justice.
11. The LPCC misconstrued and misapplied the provisions of the Legal Profession Act 2008, and the professional conduct rules in particular rule 16(1) which precludes a practitioner from attempting to further a client's matter by unfair or dishonest means.
12. The LPCC failed to examine the applicant's complaint regarding Messrs France and Pake's 'duty to the administration of justice and the court'.
13. The LPCC failed to examine the facts and evidence about the misconduct of Messrs France and Pakes in perpetrating unreasonable delay and expense and their failure to appraise the case and exercise professional judgement about the existence and relevance of documents.
17 Mr KaKay filed an annexure to this application. The Tribunal has not set out the details of the annexure because it is substantially repeated in Mr KaKay's submissions below.
18 Mr KaKay filed submissions dated 16 November 2016 in support of the application:
1. The Applicant craves the indulgence of the Tribunal to grant leave to make this application for review pursuant to section 435(2) of the Legal Profession Act 2008 on the following grounds:
(a) The first Respondent demonstrated bias by failing to properly consider the contents of the Affidavit of the second Respondent sworn to on 24 September 2015 in which the Mr Nigel Pakes expressly admitted to the complaints made against his firm by his clients which complaint fortifies the beliefs held by the Applicant that the second and third Respondents had sought to put their interests ahead of their client's interests and formed the basis of the Applicant's affidavit sworn on 23 March 2015;
(b) The first Respondent failed to properly consider the basis on which the second Respondent could make threats to refer the Applicant to the first Respondent after the Applicant had sought to enter a default judgment against the second and third Respondents' client Perth Textile International Pty Ltd on 29 January 2015;
(c) The first Respondent failed to enquire into the basis upon which the second Respondent could deny paragraph 2 of the statement of claim which merely asserts facts that can be verified by conducting a simple search of the ASIC website; and
(d) The First Respondent failed to enquire into and make a correct determination of the conduct of the second and third Respondents in unnecessarily prolonging the District Court Action by refusing to provide discovery after the Applicant had given them full and complete discovery upon their request with a view to an early resolution of the District Court Action and pursued an interlocutory application that was subsequently dismissed with costs ordered against their client.
2. The first Respondent failed to give procedural fairness to the Applicant and demanded copies of the Applicant's client file at a time when the District Court Action was ongoing with critical timelines to comply with.
3. The First Respondent exercised undue force on the applicant to provide his original client files in relation to the District Court Action and refused to allow the applicant time to attend to his medical condition which undue pressure contributed to the cancellation of the Applicant's surgery that was initially scheduled for 22 September 2015.
4. The first Respondent misconstrued and misapplied the provisions of the Legal Profession Act and ignored or failed to properly consider Rule 16(1) of the Professional Conduct Rules which precludes a practitioner from attempting to further a client's matter by unfair or dishonest means in relation to the second and third Respondents.
5. The first Respondent failed to properly examine the facts and evidence submitted to it regarding the conduct of the second and third Respondents in perpetuating unreasonable delay and expense and their failure to appraise the Case and exercise correct Professional Judgement after the Applicant had provided them with all the discoverable documents at early stage of the District Court Action in February 2015.
6. The first Respondent failed to examine the basis upon which the second and third Respondent could file the amended defence on 11 February 2015 and incorrectly stated in paragraph 7 of its reasons published on 9 September 2015 and signed by Ms L Thipthorp that 'the amended defence fully pleaded the defendant's defence to the plaintiffs' claim, and (that) is not the subject of complaint'.
7. It is very clear from the documents sent to the first Respondent about the Applicant's complaint against the second and third Respondent that the amended defence dated 11 February 2015 referred to in paragraph 7 of the reasons published by the First Respondent on 9 September 2016 was the subject of the Applicant's complaint especially when the said amended defence made assertions without pleading any justification for the Defendant to retain the Plaintiffs' money by way of set off, which fact was raised by the Applicant and commented upon by Deputy Registrar Harman in dismissing the second and third Respondents interlocutory application in the District Court Action.
8. Further, it is clear from paragraph 6.2 of the affidavit sworn by the second Respondent on 24 September 2015 that in his own admission, 'the defendant and its directors have made a number of complaints regarding the fees charged by MPH (which is the second and third Respondents firm), and other serious allegations concerning advice provided to the Defendant by MPH ...'
9. Notwithstanding the uncontroverted evidence about the matters which formed the basis of the Applicant's complaint against the second and third Respondents, the first Respondent exhibited bias and sought to minimise the conduct of the second and third Respondents and stated in paragraph 12 of its reasons for decision published on 9 September 2016 that the second and third Respondents firm MPH had fallen into dispute regarding unpaid fees and ignored the complaints against MPH about advice provided to the Defendant.
10. The first Respondents reasons contained in paragraphs 8 to 24 of its published decision are biased and so unreasonable that leave ought to be granted to the Applicant to apply for a review of the decision pursuant to section 435 (2) of the Legal Profession Act 2008, so that the Tribunal would reconsider the facts, the law and make a correct decision in the interests of justice.
11. The applicant provided incontroverted evidence about the Defendant's express statements and encouragement of the Plaintiffs to transfer money to its directors in a manner that cannot be traced so that they will not pay tax on the money. When the applicant took issue with that conduct and brought it to the attention of the third Respondent and later the first Respondent, the first Respondent did not pay any attention to that fact which formed another basis for the Applicant's complaint against the third Respondent and the failure of the first Respondent to investigate or look into that aspect of the Applicant's complaints ought to be examined by this Tribunal in the interests of justice.
12. Upon examination of paragraph 11 of the first Respondent's reasons published on 9 September 2016, the Applicant believes that the first Respondent had misconstrued or simply ignored the basis upon which Deputy Registrar Harman dismissed the interlocutory application brought by the second and third Respondents. On the very page of the transcript from which the first Respondent quoted parts of a statement by Deputy Registrar Harman, and ignored the following comments about the deficiency of the amended defence filed by the second and third Respondents on 11 February 2015:
'... the critical issue for me in the application and that is the defence the deficiency in the defence. When the matter was last before me the defendant largely relied on the affidavit evidence of its solicitor. But I must confess, even at that stage, I has reservations as to whether the defendant was presenting, shall we say, a cogent case in relation to - a cogent case in the context of this application in relation to that $57,000 odd.'
13. When the Applicant pointed out that the second and third Respondents had merely stated that their clients, the Defendant was entitled to the Plaintiffs money, without pleading any justification such as a 'set off or counterclaim' in their defence filed on 29 January 2015 or amended defence filed on 11 February 2015, The Deputy Registrar went on to state that:
'... there was no reference in the pleading of the - in the form of the amended defence to any quantified set off, there's no reference to any counterclaim. The only case put by the defendant was in the plaintiff's - sorry, in the defendant's solicitor's affidavit which was along the lines that-in breach of the January of 2013 agreement, the defendant had sustained loss. But as I say it had been unspecified; that loss had been unspecified in the amended defence in my view the position of the defendant is unsatisfactory ... .
14. The first Respondent failed to consider or deliberately ignored the comments of Deputy Registrar Harman in relation to the incompetence of the second and third Respondent when he stated as follows:
'... The position of the defendant only becomes clear in the form of evidence, not in the form of any plea in relation to... indicate the issues to be determined at trial. And those considerations are viewed in the context of the plaintiff in his claim, specifying that he's seeking return of the $57,000 odd, that's what the claim is all about.
So I consider that this is a case where the defendant really needed to put a cogent claim case forward and it hasn't done so and that in my opinion in the most glaring and significant consideration in this case ...'
15. Further, leave ought to be granted to the Applicant to bring this application for review because the first Respondent exhibited bias against the applicant by failing to consider the basis of the complaints against the second and third Respondents for their incompetence because from both the defence filed by the second Respondent on 29 January 2015 and amended defence filed by the third Respondent on 11 February 2015, the Applicant to this date, could not understand the basis upon which the defendant claimed to be entitled to retain the plaintiffs money paid to it which payment cannot be disputed.
16. Just like it was pointed out by Deputy Registrar Harman:
'... I accept that the reason that I'm giving in light of what I've said about the - otherwise the merits of the application are-is unusual, but I suppose that's akin to the case where an applicant really needs to come to the court with clean hands to justify the cause, the engagement in a process that at one level has really got nothing to do with litigation at all; it's all a side issue.
In my view the defendant simply hasn't put its best case forward, its best foot forward in the application. And I consider that the court's entitled to know exactly what position the defendant intends to take in relation to its claim for an entitlement to those funds. Because whilst those funds conceivably exist as a fund and let's face it, they existed as a fund the purposes of the April 2014 agreement in the mouth of the defendant.
There was a recognition at that point that those funds were available for utilisation by the plaintiff in April 2014, despite the contention put in-now, put in France's (the third Respondent in this application) affidavit that that money would be offset against any entitlement to a refund arising under the breach of contract and that the January 2013 agreement. And whilst it's open to the plaintiff to say, 'That is my money' in my opinion-and I recognise that it is.
Until that door is closed I'm not inclined to exercise jurisdiction against the plaintiff (the Applicant's client) to require further money to be paid, or any further amount of money to be paid by the plaintiff simply because it's engaged in litigation to try to recover the amount that is paid already. So I'll dismiss the application.'
17. It is clear from its reasons published on 9 September 2016 that the first Respondent ignored the uncontroverted facts about the conduct of the second and third Respondents which was the subject of the Applicant's complaint and those matters ought to be reviewed by this tribunal in the interest of justice.
18. The letter from Messrs Chimebele, Enyi, Okonkwo & Co. Legal Practitioners from Lagos, Nigeria sent to the applicant, copy of which was given to the first Respondent was completely ignored or not properly considered before dismissing the Applicant's complaints against the second and third Respondents, and in my respectful submission should be looked into by this Tribunal in conducting a review in this matter.
19. Further, the first Respondent failed to examine or enquire from the third Respondent as to why he should attach a redacted copy of the January 2013 agreement as attachment 'BMF8' to his affidavit sworn on 9 March 2015 after it had received a full copy with signatures of both parties and insertions with a signature by the defendant's director on the third bullet point indicating that: 'By the end of this week Martin will arrange 30K to hit our account 25th Jan to complete previous order'.
20. Without an enquiry or explanation as to why the third Respondent should attach a redacted version of the document marked as BMF8 to his affidavit of 9 March 2015, lead the Applicant to entertain a reasonable belief that the third Respondent was attempting to mislead the court as it had been given a full copy of the January 2013 agreement signed by the parties with the insertions referred to in paragraph 19 above but chose to include a redacted and unsigned copy to his affidavit of 9 March 2015. It is my respectful submission that such conduct by a legal practitioner ought to be investigated by the complaints committee but since the first Respondent failed to do so, the applicant craves the indulgence of this Tribunal to grant leave pursuant to section 435(2) of the Legal Profession Act 2008 to review the decision of the first Respondent to dismiss the Applicant's complaints made against the second and third Respondents in the interests of justice.
21. It can be seen from the Applicant's bundle of documents filed on 9 November 2016 that sufficient evidence had been adduced to the first Respondent that formed a proper basis to warrant an investigation into the conduct of the second and third Respondents in conducting the District Court Action No. 4030 of 2014.
22. Contrary to what is stated in paragraph 27 of the reasons published by the first Respondent, there is uncontroverted evidence that the Applicant had initially complained about the unjustified threats against him by the second Respondent as evidence in the email sent to the first Respondent on 27 March 2015 which was well before the second and third Respondents applied to cease acting for the defendant.
23. The only reason the Applicant had chosen to withdraw that initial complaint was to enable him focus on conducting his clients' matters that was ongoing and the attitude of the first Respondent towards the Applicant in not taking his complaints about threats from the second Respondent seriously as it had done so to the Applicant on a previous occasion when a local practitioner provided him with an incorrect address for service.
24. The resumption of the Applicant's complaints against the second and third Respondent in October 2015 was necessitated by the breach of an undertaking by the second Respondent to the Applicant in the course of a telephone conversation and the availability of evidence that fortifies the Applicant in his belief that the second and third Respondents had sought to put their interests ahead of their clients' interests as contained in the affidavit sworn by the second Respondent on 24 September 2015, parts of which the second Respondent sought to exclude.
25. The necessity of making the complaint against the second and third Respondents was borne out of a genuine concern for Professional standards especially when the second and third Respondents had engaged in conduct that had unnecessarily prolonged a matter that was simple and straight forward from the available evidence and when the director of the defendant informed the Applicant in early October after an unsuccessful Pre-Trial conference that the second and third Respondents firm MPH had given them wrong advice and they would have preferred to pay back the Plaintiffs rather than those lawyers, it became apparent to me that professional standards had been breached by the second and third Respondents and ought to be investigated by the Law Complaints Officer.
26. In view of the matters outlined above and the documents contained in the Applicant's bundle of documents filed on 9 November 2016, it is my respectful submission that the first Respondent's finding that the Applicant's complaint was unreasonable is not only frivolous and vexatious, but misconceived and lacking in substance.
- 27. In the circumstance, I crave the indulgence of this Honourable Tribunal to grant leave to the Applicant to bring this application for review pursuant to section 435(2) of the Legal Profession Act 2008 in the interests of justice.
28. In Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, Bowen CJ and Dean J said at 68:
'... The question for determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.'
29. In view of the material contained in the Applicant's bundle of documents filed on 9 November 2016, the Applicant seeks leave to make this application as it is a fundamental principle of natural justice that'... one cannot be a judge in their own cause' the first Respondent cannot seek to prevent the Applicant from making an application to this Tribunal to review its own decision by making a finding that the Applicant's complaint was unreasonable.
30. The uncontroverted evidence contained in the Applicant's bundle of documents in addition to the comments made by Deputy Registrar Harman in the District Court Action 4030 of 2014 that the second and third Respondents engaged in unsatisfactory professional conduct by settling and filing of the Defence filed on 29 January 2015 and the Amended Defence filed on 11 February 2015 as well as the Affidavit sworn and filed by the third Respondent on 9 March 2015.
31. It is my respectful submission that this Honourable Tribunal should grant leave to the Applicant and conduct a review of the complaints to enable it make the correct or preferable decision in the interests of justice.
32. The Applicant seeks leave to apply for review of the first Respondent's decision to dismiss his complaints against the second and third Respondents that was published on 9 September 2016 pursuant to section 435(2) of the Legal Profession Act 2008 because the first Respondent failed to grant Procedural fairness to the Applicant and decided to dismiss the complaints even before it had examined the documents submitted to it that formed the basis of the complaints.
33. The Applicant submits that since 'Procedural fairness' forms the basis of merits review; it will be unjust for the first Respondent to seek to prevent a Review by making an unjustified finding that the Applicant's complaints against the second and third Respondents are unreasonable. It is my respectful submission that it is the tribunal that should make such a decision or finding as the first Respondent cannot be a judge in its own case which conclusion, I am certain, the Tribunal Member is likely to reach after examining all the facts and available evidence.
Conclusion
19 The Tribunal accepts the Committee's submission that the matters raised in:
a) Grounds 1, 2, 3, 4, 10, 11, 13 and 14;
b) Annexure paragraphs 13 inclusive, and 5, 6, 7, and 8; and
c) Applicant's submissions paragraphs 1, 45 inclusive, and 11, 15, 19, 20, 22, 24 and 25
20 were not the subject of the complaint and therefore this Tribunal does not have jurisdiction (SJX).
21 In any event, there is no basis for those allegations. In particular, it is appropriate for this Tribunal to specifically refute the allegation of bias by the Committee.
22 Mr KaKay chose to bring the complaint when he did. He can hardly complain that he was required to provide copies of his file. He could easily have copied it in any event.
23 Mr KaKay has not provided particulars of many of his allegations.
24 The Tribunal is required to form its own conclusion as to whether the application should be dismissed on the basis that it is unreasonable (Vella). However, the Committee's reasons for concluding that the complaint ought to be dismissed are sound and this Tribunal as formed the same view.
25 In short:
1) The holding defence was filed in circumstances where the defence had not been finalised and Mr KaKay refused an extension of time to file the defence. The substantive defence was filed less than two weeks later; and
2) The District Court Rules 2005 (WA) (Rules) provide a means for enforcing compliance with the Rules when there is a default by the other party in, for example, providing discovery. It is not the function of the Committee to enforce compliance with the Rules.
26 In any event, the reasons given for not providing discovery, that is, security for costs applications and amendments to the security of costs, were reasonable.
Orders
1. The application is dismissed.
2. The hearing date set for 3 April 2017 is dismissed.
I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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