Keung v Abbott

Case [2017] SASCFC 58

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

KEUNG v ABBOTT & ANOR

[2017] SASCFC 58

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Hinton)

26 May 2017

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA - PROCEEDINGS IN TRIBUNALS

PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - LEGAL PROFESSIONAL PRIVILEGE - WHAT CONSTITUTES - PARTICULAR CASES

Appeal against a decision of the Legal Practitioners Disciplinary Tribunal (the Tribunal) dismissing four of five charges brought by the appellant against the respondents as out of time. Cross-appeal by the respondents arguing that the remaining charge is also out of time.

The respondents represented the appellant in litigation in the Federal Court which ceased around the end of 2009. The appellant made a number of complaints about the respondents’ conduct of that litigation to the Legal Practitioners Conduct Board (the Board). The conduct complained of occurred between 2008 and 2009. The Board instructed Cosoff Cudmore Knox (CCK), a law firm, to investigate the appellant’s complaints. CCK provided a report (the CCK report) to the Board investigating each of the appellant’s complaints. In September 2012, the Board dismissed all the appellant’s complaints bar one.  The final complaint was dismissed in November 2014. The Board claimed that the CCK report was the subject of legal professional privilege.

Eventually, on 17 April 2015, the appellant laid charges against the respondents before the Tribunal based on the conduct above. On 1 October 2015 the Tribunal dismissed four of the five charges laid against the respondents as out of time. The Tribunal considered that the relevant time limit for bringing charges was five years based on s 82(2a) of the Legal Practitioners Act 1981 (SA) which applied at the time of the alleged conduct. In the event that the Tribunal was wrong based on an amendment to that Act, which would shorten the time limit for laying charges to three years but granted the Tribunal a discretion to extend that time limit, the Tribunal considered the charges out of time and declined to extend the time limit.

The appellant argues on the appeal that if the CCK report had been disclosed to him then he would have brought the charges sooner and that he was also unaware of his right to lay charges until some time later.  The Commissioner (the statutory successor to the Board) intervenes in the action and maintains a claim of legal professional privilege over the CCK report.

Held, per Kelly J (Kourakis CJ and Hinton J agreeing) dismissing the appeal and allowing the cross-appeal:

1. The amendment to s 82(2a) of the Legal Practitioners Act 1981 (SA) which grants the Tribunal a discretion to extend the three year time limit for laying charges applies retrospectively. The Tribunal could have extended the time in this case. Legal Profession Conduct Commissioner v Richardson (2016) 125 SASR…

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AGLC
Keung v Abbott [2017] SASCFC 58
Case
[2017] SASCFC 58
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by Dr Keung against a decision of the Legal Practitioners Disciplinary Tribunal. The respondents, lawyers from Piper Alderman, had acted for Dr Keung and Australian Medic-Care Company Ltd (AMC) in Federal Court proceedings and subsequent fee disputes. Dr Keung had made complaints to the Legal Profession Conduct Commissioner (the Commissioner) regarding the conduct of the respondents, which the Commissioner had previously investigated and found no unsatisfactory or unprofessional conduct. Dr Keung then sought to lay charges before the Tribunal.

The primary legal issue before the Tribunal, and subsequently on appeal, was whether Dr Keung's application to lay charges was out of time, and if so, whether an extension should be granted. The Tribunal considered the applicable limitation periods under the *Legal Practitioners Act* and whether a discretion existed to extend time. A further issue on appeal was Dr Keung's renewed application to amend his notice of appeal.

The Tribunal dismissed Dr Keung's application for an extension of time, finding that a five-year limitation period applied and that, even if a later amended provision applied, the time for laying charges had lapsed. The Tribunal declined to exercise its discretion to extend time, noting the substantial delay, the lack of adequate explanation for the delay, and Dr Keung's awareness of his right to lay charges before the Tribunal for over 2.5 years. The Tribunal found that Dr Keung had made a deliberate decision to pursue other avenues rather than lay charges before the Tribunal, and that this pursuit appeared to be a means to obtain specific reports.

The appeal was heard by Kourakis CJ, Kelly and Hinton JJ. The Court refused Dr Keung's application to amend his notice of appeal. The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The Legal Profession Conduct Commissioner (the Commissioner) has intervened in the appeal. Background In order to understand the appellant’s grounds of appeal and the issues which arise from them, it is necessary to set out the background of the appellant’s proceedings in the Federal Court and before the Tribunal in some detail. At all relevant times the respondents were lawyers with the firm Piper Alderman. In 2006, Piper Alderman received instruction from Wilkinson & Grist, a law firm in Hong Kong. Wilkinson & Grist acted for Australian Medic‑Care Company Ltd (AMC). At all relevant times the appellant was a director and shareholder of AMC. Initially, Wilkinson & Grist instructed Piper Alderman to advise whether conduct engaged in by an Australian company, Hamilton Pharmaceutical Pty Ltd (Hamilton), was in breach of a distribution agreement between AMC and Hamilton. In February 2007, AMC commenced proceedings against Hamilton in the Federal Court (the Federal Court proceedings). Piper Alderman were the solicitors on record and engaged senior and junior counsel. Piper Alderman continued to be retained by Wilkinson & Grist until April 2009. From that time Piper Alderman was retained by and acted for the appellant and AMC directly. Hamilton filed a cross-claim against AMC and the appellant, alleging breach of confidence. The appellant unsuccessfully applied that the cross-claim against him be heard separately from the Federal Court proceedings.[2] [2] Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd [2008] FCA 821. Judgment was delivered in the Federal Court proceedings and cross-claim on 30 October 2009.[3] AMC was successful against Hamilton and received nominal damages for Hamilton’s breach of the distribution agreement. Hamilton’s cross-claim for breach of confidence was successful against AMC but unsuccessful against the appellant. AMC was ordered to account to Hamilton for its profits. Cost orders were made on 14 December 2009.[4][3] Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd [2009] FCA 1220.[4] Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd (No. 2) [2009] FCA 1494. Piper Alderman ceased to act for AMC and the appellant on 16 February 2010. At that time Piper Alderman had outstanding fees of approximately $85,000 and it sought to recover those fees from AMC and the appellant in the Supreme Court. A provisional adjudication was part heard on 14 August 2012 and the dispute was then resolved in September 2012 before the provisional adjudication was due to resume. After Piper Alderman ceased to act, the appellant made complaints to the Legal Practitioners Conduct Board (the Board) about the conduct of the respondents, and also about senior and junior counsel engaged in the Federal Court proceedings. The appellant’s complaints were the subject of numerous correspondence and documents dated between about 24 June 2010 and 15 April 2014, to which the respondents replied during an investigation conducted by the Board, which later, after the Act was amended, became the Commissioner.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J
In summary, all of the charges laid by the appellant represented conduct or aspects of conduct which had been previously investigated by the Board (and later the Commissioner), and in respect of which the Board and the Commissioner ultimately determined that there had been no unsatisfactory or unprofessional conduct on the part of the practitioners. The Legal Practitioners Disciplinary Tribunal decision On 1 October 2015 the Tribunal dismissed the appellant’s application for an extension of time. The Tribunal said in its reasons: As I have found that the five year limitation period applies, there is no discretion to grant an extension of time.If I am wrong, and the amended s.82(2a) does apply to the laying of these charges before the Tribunal, then the time for laying all of the charges (three years) lapsed by November 2010 with the latest by November 2013. I would need to consider whether to allow an extension of time pursuant to the amended s.82(2a)(b).I would decline to exercise the discretion to extend the time. There has been a substantial lapse of time from the date of the conduct to the laying of charges before the Tribunal. There has been no adequate explanation for the delay. Dr Keung was advised of the Board’s decision regarding the conduct the subject of these charges (other than count 5(e)) by letter dated 20 March 2012. On 5 September 2012, Dr Keung emailed the Board asking the following question:-If I need to apply for further decision by the Tribunal myself or the Board can direct the complaints to the Tribunal for and on behalf of our company?By emailed letter dated 6 September 2012, the Board responded. Dr Keung was advised that ‘pursuant to s82(2) of the Legal Practitioners Act a charge may be laid before the Legal Practitioners Disciplinary Tribunal by a person claiming to be aggrieved by reason of the alleged unprofessional or unsatisfactory conduct (of legal practitioners)’. A copy of section 82 was attached to the emailed letter. He was also advised that ‘The Board cannot direct a complaint to the Tribunal for or on behalf of your Company.’Dr Keung was aware of his right to lay charges by September 2012 at the latest, but did not exercise that right for over 2.5 years. Dr Keung explained his delay by reference to his pursuit of the CCK Reports due to the Board not providing reasons in the letter dated 20 March 2012, complicated litigation and adjudication on bills of costs in the Supreme Court and the difficulties of self-representation. I find that Dr Keung made a deliberate decision to pursue those matters rather than lay charges before the Tribunal. On the basis of Dr Keung’s own submission, it would seem that the laying of these charges was considered by him to be yet another route by which he may obtain a copy of the CCK Reports and the report of Ms Manos.[footnote omitted]The appeal The appellant filed a notice of appeal in respect of the Tribunal’s decision on 6 November 2015. He later sought to file an amended notice. A single Judge refused permission in respect of the application to file the amended notice and upon the hearing of this appeal the appellant renewed the application to amend.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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