Lashansky v Legal Practitioners Complaints Committee

[2005] WASCA 217

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   LASHANSKY -v- LEGAL PRACTITIONERS COMPLAINTS COMMITTEE [2005] WASCA 217

CORAM:   WHEELER JA

MCLURE JA
MILLER AJA

HEARD:   21 & 22 SEPTEMBER 2005

DELIVERED          :   16 NOVEMBER 2005

FILE NO/S:   FUL 7 of 2001

BETWEEN:   ROBERT JAMES LASHANSKY

Applicant

AND

LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
Respondent

Catchwords:

Practice and procedure - Reopening decisions of appellate court - Vacation of orders; principles governing - Fraud - Failure to hear - Consent

Legal Practitioners - Disciplinary proceedings - Legal professional privilege

Legislation:

Legal Practitioners Act 1893 (WA), s 25(1)(c), s 28C, s 28D, s 30, s 34, s 34A, s 38, s 39, s 40, s 41, s 58ZB, s 59

Supreme Court Act 1935 (WA), s 57, s 58

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     In person

Respondent:     Mr R J Davies QC

Solicitors:

Applicant:     In person

Respondent:     Minter Ellison

Case(s) referred to in judgment(s):

Ainsworth v Wilding [1896] 1 Ch 673

Bailey v Marinoff (1971) 125 CLR 529

Boomalli Ltd v Hake [1985] WAR 7

Cameron v Cole (1944) 68 CLR 571

Carter v The Managing Partner, Northmore Hale Davy & Leake, unreported; FCt SCt of WA; Library No 930375; 15 July 1993

Daniels Corporation v Australian Competition and Consumer Commission (2002) 213 CLR 543

DJL v The Central Authority (2000) 201 CLR 226

Gamser v The Nominal Defendant (1977) 136 CLR 145

Goodwin v Southern Tablelands Finance Co Ltd (1968) 42 ALJR 309

Hammond v Schofield [1891] 1 QB 453

Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642

Jackamarra v Krakouer (1998) 195 CLR 516

Lashansky v Howell & Ors [2004] WASCA 252

Lashansky v Legal Practitioners Complaints Committee [2002] WASCA 326

Lashansky v Legal Practitioners Complaints Committee [2002] WASCA 344

Marshall v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure [2003] WASCA 67

Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45

Re Caithness; Leslie v Caithness (1892) 36 Sol Jo 216

RMKRM (A Firm) v MRMVL (A Firm) [1926] AC 761

Rogerson v Law Society of the Northern Territory (1993) 88 NTR 1

State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29

Sullivan v Department of Transport (1978) 1 ALD 383

Taylor v Lawrence [2002] 3 WLR 640

Taylor v Taylor (1979) 143 CLR 1

The Bellcairn (1885) PD 161

VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291

Wentworth v Rogers (No 9) (1987) 8 NSWLR 388

Case(s) also cited:

A Solicitor v Council of the Law Society of New South Wales (2003) 216 CLR 253

Afkos Industries Pty Ltd v Pullinger Stewart (A Firm) [2001] WASCA 372

Archer v Howell (1992) 7 WAR 33

Barwick v Law Society of New South Wales (2000) 74 ALJR 419

Briginshaw v Briginshaw (1938) 60 CLR 336

Commissioner of Main Roads v Jones (2005) 79 ALJR 1104

Dietrich vThe Queen (1992) 177 CLR 292

Law Society of New South Wales v Hughes [1999] NSWADT 44

Mallard v The Queen (2003) 28 WAR 1

Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320

Sotico Pty Ltd v Green [2003] WASCA 285

State of Queensland v JL Holdings Pty Ltd, unreported; FedCt; 29 October 1996

Table of Contents

1.  This application
2.  The proceedings in the Legal Practitioners Disciplinary Tribunal

2.1 R14A of 1999 - Mrs Tailor
2.2 R14B of 1999 - Mr Aurthaveekul
2.3 R12 of 2000 - Ms Gilchrist
2.4 R5 of 2000 - Failure to respond
2.5 R7A and R7B of 2000 - Failure to comply with orders
2.6 R6 of 2000 - Failure to respond (Fergus)
2.7 The Tribunal's conclusions generally

3.  The appeal and other proceedings in this Court

3.1 LPD 3 of 2000
3.2 LPD 1 of 2001
3.3 FUL 7 of 2001
3.4 The hearing on 24 July 2002
3.5 Proceedings subsequent to 4 December 2002

4.  Basis of recall and reopening orders of the Full Court
5.  Principles governing vacation of the Full Court's orders
6.  Vacation of the dismissal decision and orders - merits

6.1 Fraud
6.2 Failure to hear
6.3 The affidavits of 18 and 20 November 2002

6.3.1 R12 of 2000 - Ms Gilchrist
6.3.2 R14A of 1999 - Mrs Tailor
6.3.3 R14B of 1999 - Mr Aurthaveekul
6.3.4 The references generally

6.4 Delay
6.5 Alleged new or fresh evidence

6.5.1 Affidavit of Mrs Fussell 20 September 2004
6.5.2 Affidavit of Mrs Tailor 21 September 2005
6.5.3 Affidavits of Mr Greenwood 26 August 2005 and 21 September 2005
6.5.4 Affidavits of Ms Carter 20 September 2004 and 21 September 2005
6.5.5 Affidavits of the applicant

7.  The dismissal decision - correctness
8.  Further grounds of appeal
9.  Matters subsequent to hearing
10.  Summary

JUDGMENT OF THE COURT:   

1.  This application

1. This is an application by the applicant, Mr Lashansky, made by motion dated 12 March 2004, for orders that:

   "1.The Orders of the Full Court handed down by Full Court of the Supreme Court of Western Australia on 4 December 2002, which Orders dismissed the Appellant's Appeal against the Orders of the Legal Practitioners Disciplinary Tribunal handed down on 27 November 2000, with the Appellant to pay the costs of such dismissed Appeal, be vacated.

   2.The Appellant's appeal be reinstated."

2. That was an application before the Full Court, and is now before the Court of Appeal by reason of s 38 of the Acts Amendment (Court of Appeal) Act 2004 (WA).

3. It is convenient to commence these reasons by considering the proceedings from which the applicant originally appealed.  It will then be necessary to consider the course which the appeal took in this Court, and to consider other related proceedings in order to understand how the application arose.  We then turn to deal with the legal principles applicable to such an application, and next to the facts upon which the application is based.  Finally, it will be necessary to mention some matters arising since the hearing of this application. 

4. We refer to the judgment sought to be vacated as "the dismissal decision".

2.  The proceedings in the Legal Practitioners Disciplinary Tribunal

1. The background to the various references to the Tribunal is as follows.  The relevant Act at the time was the Legal Practitioners Act1893 (WA) as amended ("the Act"). Part V of the Act deals with practitioners' trust accounts. Section 38 permitted the Legal Practice Board (a body constituted under Pt I) to appoint and authorise an accountant having certain defined qualifications to examine the books of account and records of a practitioner relating to any trust account. Such a person was commonly referred to, although the statutory term was the "examiner", as a "Trust Account Inspector". Section 39 gave that person power to require the practitioner or the practitioner's staff to produce books, papers and documents relating to trust money or trust accounts and to require bank officers to disclose details of accounts. The Trust Account Inspector, or persons employed by the Inspector, were not to disclose any matter which comes to their knowledge in the course of an examination, other than in the course of a report to the Board (s 40). Upon receipt of the Trust Account Inspector's report, the Board could itself inquire into matters revealed by the report and could request the Complaints Committee, a body established under Pt IV, to inquire into the matter (s 41).

2. In October 1998, the Legal Practice Board engaged a Mr Novell as Trust Account Inspector to investigate the records of the applicant.  His initial inspection of the applicant's documents noted that certain files were not properly identified and that some contained documents from other files being handled for the client.  He could not reconcile moneys paid into the general practice account, and formed a preliminary view that there were breaches of the Act regarding the accounting for costs paid on account.  Mr Novell, of course, sought further information, and had a number of conversations with the applicant.  The Complaints Committee was asked to consider the matter, and Mr Jordan, the Complaints Committee's legal officer, engaged in correspondence with the applicant and met the applicant on a number of occasions.  It was out of those matters that the various references arose.

3. Briefly, the procedure in relation to each of the references was as follows. Section 28C of the Act provided that where the Complaints Committee determined that a matter should be heard by the Disciplinary Tribunal, the Committee initiated proceedings against the practitioner. That was done by a number of separately numbered references, the details of which we shortly describe. The Tribunal was created by s 28D of the Act. Pursuant to s 29A, it had jurisdiction to make a variety of findings, and power to transmit a report to the Full Court. A report was, by s 30, taken to be conclusive as to all facts and findings therein mentioned, and the Court could, without further evidence, fine, suspend from practice, or strike off the roll the practitioner the subject of the report.

4. The Tribunal consisted of a Chairman appointed by the Governor with prescribed qualifications, members of the Legal Practice Board for the time being, with certain exclusions, and one or more representatives of the community.  The Tribunal's Rules required a practitioner to file an answer to a reference (Legal Practice Board Rules 1949 (WA), r 68). Part of the difficulty with these proceedings was that the applicant did not file an answer in relation to any of the references. At the commencement of the proceedings, then, the Tribunal did not know what it was that the applicant said in relation to any matter the subject of any of the references. Indeed, as it will appear, it is difficult to this day to understand what it is that the applicant says is his answer to a number of the references.

5. The various references were heard together in October and November 2000 by a Tribunal which comprised the Chairman, the Hon B W Rowland QC, two legal practitioners and a community representative.

2.1 R14A of 1999 - Mrs Tailor

1. This reference alleged that, on 3 September 1998, the applicant was guilty of unprofessional conduct in that he knowingly and improperly permitted his client, Mrs Tailor, to lend him $85,533.  It was alleged, and was not disputed, that he attended with Mrs Tailor to collect a cheque in her favour for that amount from the Real Estate and Business Agents' Supervisory Board, which amount was awarded to her by the Board as a result of improper conduct by an agent.  The cheque was immediately endorsed by Mrs Tailor in favour of the applicant. 

2. The Law Society's Professional Conduct Rules provide, in r 8.1, that except where it is part of the client's normal business to lend money, a practitioner is not to advise or knowingly permit a client to lend money to the practitioner unless, prior to the loan, the client has acknowledged certain matters in writing.  Those matters are: that the practitioner has advised that it is desirable that the client should obtain independent legal advice; as to the nature of the loan; that in the event of default the client may have no recourse to the solicitor's guarantee fund; and that the practitioner may benefit financially.  Those rules do not have statutory force.  They reflect, however, the view taken by members of the profession of the appropriate professional conduct in particular circumstances, and are persuasive evidence of the appropriate standard of behaviour.

3. There were certain documents brought into existence in relation to that loan.  There was a letter of 1 November 1998, some two months after the date of the endorsement of the cheque to the applicant, in which Mrs Tailor states that she authorises the practitioner to use that cheque "to aid in financing the Colonnade matter".  The letter continues:  "This is a loan and will be repaid to me once the Colonnade matter is finalised."  We describe the Colonnade matter later, in relation to reference R12 of 2000. 

4. On 31 December 1998, the Trust Account Inspector wrote to the applicant with certain queries about entries in the books relating to the sum received from Mrs Tailor.  In response, he received a brief letter from the applicant advising that the cheque had been endorsed over to him by Mrs Tailor, and that that "arrangement" was done at Mrs Tailor's request.  It accompanied a longer letter from Mrs Tailor herself.  She stated in that letter that some weeks prior to payment of the cheque, she had been made aware that the Real Estate and Business Agents' Supervisory Board would pay her.  While waiting for the issuing of the cheque, she decided to loan the moneys to the applicant in his personal capacity as she realised he was under considerable financial strain.  That strain she described as having been caused mainly by his agreeing to assist people such as Mrs Tailor without seeking payment for his services.  She stated that there was "never any question" of there being anything other than a personal loan, that there was no question of interest or of any claim against the fidelity fund, and that she had been made fully aware of the consequences of making a personal loan should the applicant be unable to repay.  She also briefly described the circumstances leading up to the payment of the money to her.  Those circumstances involved an agent called Frances Chan who had mortgaged Mrs Tailor's home without Mrs Tailor's knowledge.  It appeared that the applicant had expended a considerable amount of time and effort in endeavouring to have Mrs Chan's affairs investigated and to recover funds for Mrs Tailor; those efforts were not in dispute before the Tribunal.

5. In a follow‑up letter of January 1999, the Trust Account Inspector asked the applicant whether Mrs Tailor had been advised to seek independent legal advice.  There was no reply from the applicant himself, but a letter of 5 February 1999 from Mrs Tailor to the Trust Account Inspector stated:  "I was offered the opportunity of taking independent legal advice."  This is, of course, not quite the same thing as being advised to seek such advice, a distinction of particular importance in a situation where, as Mrs Tailor went on to explain in her letter, she had "absolute faith" in the applicant. 

6. Because no answer had been made by the applicant at the hearing of the references, with the agreement of the applicant, the Tribunal took the course of permitting counsel for the Law Complaints Officer to ask him what his response to each reference was, prior to the calling of evidence.  During the course of questioning, it was established that Mrs Tailor became aware at some time prior to September 1998 that she was to receive the money from the Real Estate and Business Agents' Supervisory Board.  To assist in understanding the proceedings in the Tribunal, we reproduce part of the applicant's response.  To convey the flavour adequately, it is necessary to set out a number of pages.  They are pages 15 to 18, as follows:

   "And when she became aware she was to receive those moneys, she offered to lend them to you?‑‑‑She never offered to lend.

   She said she would lend them to you?‑‑‑No.  Mr Ley, you see, this is the whole problem.  It's explained already to Mr Novell on three or four occasions.  Mrs Tailor was refused legal aid. When I went to court on behalf of Mr and Mrs Karena ‑ ‑ ‑

   Mr Lashansky, rather than getting into all of that, can you just answer my question?‑‑‑No, no, no; you have got to understand the whole issue.  The whole issue is Mrs Tailor ‑ ‑ ‑

   I don't want to know about the whole issue.  I want you to answer my questions?‑‑‑Well, you either want to get to the truth ‑ ‑ ‑

   Did she lend you 85,533.55?‑‑‑Most certainly she did. Mrs Tailor's exact words ‑ ‑ ‑

   THE CHAIRMAN:   I'm sorry, she did?‑‑‑Yes, sir.

   Right?‑‑‑Mrs Tailor originally said to me I can take what I want out of the cheque.  I said, 'It's your money.'  I said, 'The Colonnade people are in need of money' and 'Will you lend me the money?'

   MR LEY:   The Colonnade litigation has to be funded.  Is that what you mean?‑‑‑Yes, well, that was the point.  Mrs Tailor's money funded the Colonnade litigation.

   She wasn't any part of that, was she?‑‑‑No, she worked in my office at the time.  She was helping me out.  Shirley had no money to pay.  Legal aid was refused.  I fought for Shirley for 4 years and when Shirley got her money, she said to me, 'Take what you want,' because Shirley was aware of the situation.  There was a Mr Wright, who you are well aware of because you were acting on the other side in that defamation case and you're well aware of the fact - what went on with Mr Wright and how he was forced into a 17‑day arbitration because that's the defence in the defamation.  Mr Wright owed a substantial amount of money.  He had no money to pay.  The Colonnade people had no money to pay.  Joseph Lieberfreund had given an account for 13 and a half thousand and whacked it up to 50.

   In any event, Mr Lashansky, the money was lent and the way it was lent was that you and Ms Tailor went along to the board's office on 3 September 1998 when she got her cheque?‑‑‑I can seem to remember that, yes.

   And the way that the moneys were lent was that she had got the cheque from the board for that amount and she endorsed it over to you on the back?‑‑‑Yes, and there was a good reason for that too.

   We will just stick to the facts, if we may.  It was endorsed over to you so then you took the cheque and you paid the cheque into your bank account?‑‑‑Into my general account.

   Yes?‑‑‑And if you want to know the reason, let me explain to  you the reason.

   No, I'm not interested in the reason?‑‑‑No, there is a reason.

   Mr Lashansky, you can give the reason when you're presenting your defence.  All I'm interested in at the moment - I'm trying not to cross‑examine you?‑‑‑No; no, but I want to ‑ ‑ ‑

   What I'm trying to do is just trying to put the allegations to you?‑‑‑The board has got to hear my side of the story too.

   They will when you give your defence.

   THE CHAIRMAN:   Let him tell us what his defence is, Mr Ley?‑‑‑Let me just explain the situation.  Mrs Tailor was put under Wayne Martin QC in order to progress Mrs Tailor's claim because there happened to be criminal trials against Seng Fai Chan and Frances Mary Chan and possibly other parties involving in how Shirley lost her house.  Mr Wayne Martin QC in order to agree to have the claim progressed, Mr Ley, went and at the request of Wayne Bellew insisted upon deeds of confidentiality being drawn up.  Those deeds of confidentiality were entered into and duly signed and as a result of that there was no sending of Mrs Tailor, as would normally have been the case, for independent legal advice because of the outcome and the Wayne Martin deed of confidentiality.  That was the condition put upon it, otherwise they were not prepared - the board - because of its previous policy to progress the compensation claim for Mr and Mrs Waldron.  Mr Waldron had a stroke at that time.  He was in desperate straits.  Mrs Waldron is pushing into her seventies and Shirley's a rather elderly lady.  In those two exceptions the board agreed to change its policy and allow the claims to be progressed without the criminal conviction of the defalcating real estate agent.

   MR LEY:  This is the claim against the fund you're talking about?‑‑‑This is the claim against the fund.  Part of that is Wayne Martin QC drew up deeds of confidentiality.  Mrs Tailor, myself and Val Waldron had to agree to sign the deeds of confidentiality.  Under normal circumstances of course I would have sent Mrs Tailor out to have gone and got legal assistance from somebody else.  I didn't have an objection to that.  Shirley is the most kind person in the world.  She will give you the shirt off her back.  Shirley understood that I had worked.  She was there.  There was a further thing that Mrs Tailor also understood.  The fund, as you will understand it - and Doug Shave is now claiming the credit for having changed it.  The fund says that you get a claim only if you bring your claim within 1 year.  As a result of entreaties made by me, Mr Kim Beasley senior to Doug Shave, Doug Shave agreed to change the law and he made it 6 years which saw Shirley getting paid.  I would never have normally asked Shirley for the money.  Shirley was aware of the desperate straits because the Colonnade ‑ ‑ ‑

   Did you ask her for the money?‑‑‑Shirley offered it.  As far as I understand, Shirley offered.  She said take what I want out of the cheque.  I could have taken what I wanted out of the cheque.  I said no.

   It is just that you said then that you asked her for the money?‑‑‑I said to Shirley - when Shirley said take what I want out of the cheque, I said, 'No, it's your money.  You need it Shirley at the end of the day.  I need some money for the Colonnade people.  The Colonnade people ‑ ‑ ‑'

   So in the end you agreed to take the money?‑‑‑Mr Ley, listen to me.  The Colonnade people ‑ ‑ ‑

   I'm just trying to understand what you're saying, Mr Lashansky?‑‑‑No, in about January of 1997 I started working on the Colonnade case.  You're now talking about August 1997, the first bill.  In about January of 1997 I started working on the Colonnade case.

   Sorry, I wasn't talking about that at all. I was talking about what happened in September 1998?‑‑‑Well, it all goes to what happened in September 1998.  In about January of 1997 Mr Gentilli attended a meeting with a whole lot of tenants from the Colonnade shopping centre.  The tenants asked Mr Gentilli, 'How much will the litigation cost?' and Mr Gentilli said, 'Somewhere between 10 and 14 thousand dollars.'  At the time Shirley had lent it to me that litigation was already running into its hundreds of thousands of dollars and nobody had any money.  The three litigation funders who had promised to fund the litigation - Conrad Tye had been bought out.  He had gone.  Sam Novatscov who would have put the money in had a quintuple bypass and he wasn't well enough to fund the matter, let alone - there was doubt whether he would get to court.  Joe Bruni who was the other litigation funder had bought other premises in Morley and he had no money in which to pay for Miss Gilchrist, David Wood and a few of the other people that were desperate for money.

   When she offered to lend you the money, did you advise her that she should take independent legal advice?‑‑‑No.

   When she offered to lend you the money, did you tell her that it would be a purely personal loan and you couldn't give her any security for repayment?‑‑‑Most certainly, yes.

   You told her that?‑‑‑Of course, and that was relayed to Mr Novell.

   Did you tell her at the time when she offered to lend you the money and you agreed in the event you failed to repay the loan she would have to look to you for repayment of the loan debt and would have no recourse against the solicitors guarantee fund?‑‑‑Shirley was informed that if I went down, that was the end of her money."

1. The applicant then went on to explain that he had given Mrs Tailor, in exchange for the endorsement of her cheque, 10 cheques each in the sum of $8533 and each otherwise blank.  It is somewhat difficult to follow his explanation, but, so far as we can understand it, the idea seems to have been that since Mrs Tailor worked in his office, she would know when his financial situation was improving, and would be able to fill the cheques in from time to time and be repaid in that way.  In fact, it seems she was repaid directly. 

2. During the course of explaining that arrangement, the applicant said, apparently in reference to his general account, "my bank account was overdrawn, as Mr Novell knows and the bank manager was refusing to meet the cheques.  He bounced a cheque, as Mr Novell can tell you, for the Australian Taxation Office". 

3. Pausing there, there are a number of aspects of these questions and answers which are characteristic of the applicant's approach to the references both before the Tribunal and in all proceedings in this Court, which make it peculiarly difficult to understand what defence, if any, he wishes or wished to make. 

4. It is apparent that he assumes that the listener, be it the Tribunal or the Court, is intimately familiar with, or at least will be able to follow, references to many persons and occasions which are not the subject of evidence, which are not in issue in the proceedings, and which have only peripheral, if any, relevance to them.  For example, in the passage quoted, there is some reference to a Mr Wright; he does not appear to be one of the "Colonnade clients", and what he had to do with Mrs Tailor's loan is a mystery to us. 

5. There is a detailed reference to a deed of confidentiality required by a Mr Bellew, although who Mr Bellew might be is not explained.  So far as one can discern, although the proposition is not clearly articulated, the relevance of all that may be that Mrs Tailor was not sent for independent legal advice because the applicant formed the view that the deed of confidentiality might have prevented her from revealing to another solicitor how much money she had obtained.  The problem with that as a defence, or even as a circumstance of mitigation, is that no deed of confidentiality was ever produced, so that the Tribunal had no opportunity to consider its terms; it would be surprising if such a document had any relevance to independent advice about a loan to a solicitor.  The reference to Mr Gentilli and litigation funders and so on, might, if one knew the background, explain why the applicant accepted the money, but would be no answer to the reference.

6. Finally, it is apparent that the applicant's preoccupation is his role as a "crusader for justice".  That is, he explains at length, and with confusing detail, what efforts he has made on behalf of his various clients to ensure that they obtain some redress, often emphasising that he either received no payment for those services, or was prepared to accept a payment which was considerably reduced, or long delayed.  As was repeatedly pointed out to him in the Tribunal, however, the focus of the Tribunal's inquiries was upon irregularities in dealing with, or accounting for, money which he did receive from clients.  It is not surprising therefore, that the Tribunal formed the view that the applicant's responses and evidence generally missed the point of the references. 

7. Turning to Mrs Tailor's evidence, she gave evidence that she thought very highly of the applicant and that it was her view that without his efforts, she would never have got her money back.  In relation to the money, she was asked whether she offered to lend it to the applicant and her evidence was that she told him "that he could have that money".  She said that he replied that it was Mrs Tailor's money and that it was up to her what happened to it and that he did say that there was some difficulty with the Colonnade matter that she could help with.  Her evidence was that he could do what he liked with it, so that he could either pay her back or not.  She did not think that he at any point said that she should take independent legal advice before proceeding with the transaction.  She said that when he won the Colonnade case, he would pay the money back.  She said that she was very cross that there was an inquiry into the payment, because she considered it to be a private matter between herself and the applicant.

8. When asked about her letter in which she said she was given the opportunity of having independent legal advice, she said that she was excited about getting her money and that she could not remember, but that he could have said "something like that" to her.  In cross‑examination, she reiterated that she could not remember whether there was a discussion about independent legal advice.  In response to a question from the applicant suggesting that he did not think she was a client at the time at which payment was made, she agreed:  "When that money was paid to me I was not your client any more," (although that seems to us a question of law, and that her answer was incorrect).  The evidence suggested that the letter dated 1 November 1998 was a "re‑creation" of an original Mrs Tailor may have signed, but that she had signed the document which was in evidence because the original, whatever its date, was unable to be found in the applicant's office. 

9. On 1 November 2000, the applicant conceded that he had "broken the Act" in relation to reference 14A.  He called a witness in mitigation, who gave evidence that she had suggested to Mrs Tailor that it was undesirable for her to give or lend money to her solicitor, and that Mrs Tailor had become very angry at that suggestion.  In his submissions in mitigation, he suggested to the Tribunal that Mrs Tailor would have given him the money even if she had been sent for independent advice.

10. The Tribunal found in relation to this reference that the applicant acknowledged that, at no time prior to the loan being made had there been the relevant acknowledgement in writing.  It noted his concession that he did not give oral advice that it was desirable that Mrs Tailor should obtain independent legal advice.  It accepted that Mrs Tailor was very fond of the applicant and was prepared to give the money to him, although it was in due course made as a loan.  The Tribunal also found that the documents making reference to the loan which were signed by Mrs Tailor were brought into existence only after Mr Novell had drawn the applicant's attention to r 8.1 of the Professional Conduct Rules, and that those documents were prepared for Mrs Tailor by the applicant.  The Tribunal's view was that the failure to comply with r 8.1 amounted to unprofessional conduct.  It noted that the basis of the rule was that a solicitor would be in a situation of conflict of interest where there was a loan from a client and that, although Mrs Tailor was supportive of the applicant, it was often in precisely those circumstances that it was desirable that there should be independent advice.  All of those findings were plainly open.

2.2 R14B of 1999 - Mr Aurthaveekul

1. The statutory background to this reference should be briefly set out. It is also relevant to the later R12 of 2000 (Gilchrist). Under the Act "trust moneys" were defined as moneys entrusted to a practitioner in the course of legal practice for the use or benefit of a person or persons other than the practitioner, but so as to be under the exclusive control of the practitioner. Section 34 of the Act required every practitioner who received trust moneys, unless then dealing with them as directed by the person from whom they were received, to forthwith deposit them to the credit of a trust account. Section 34A provided that a practitioner might apply trust moneys towards the payment of costs and disbursements charged against the person for whose use or benefit the moneys were held if:

   "(a)that is authorised by the client under the terms on which the moneys are so held under the control of that practitioner; and

   (b)the practitioner within 14 days thereafter causes to be served upon that person a bill of costs in respect of those costs and disbursements showing that trust moneys have been applied by the practitioner towards the payment of those costs and disbursements."

2. It is also desirable to bear in mind, in relation to references 14B and 12 of 2000, that s 58ZB of the Act provided that the remuneration of practitioners was regulated by determinations as to costs made by the Legal Costs Committee, save that, pursuant to s 59, a practitioner could make a written agreement with a client for the manner in which the practitioner was to be paid, including an agreement for lump sum payments. Such an agreement could be reviewed by the Supreme Court, pursuant to s 59.

3. It is also convenient to mention in relation to this reference an issue raised by the applicant which was common to a number of the references, being the unfortunate state of his records.  That issue had, as we understand it, four distinct elements.  As is common with the majority of legal practitioners, the applicant, of course, relied upon a computer system to maintain detailed records. 

4. The first element relevant to this issue was that he asserted that he had limited computing skills and understanding, and that the "inputs" into his computer system were done by others - that is, by members of his staff.  He asserted that he was not therefore responsible for what was found on that system. 

5. The second element of this issue also relates to the computerised system.  Mr Novell agreed with the applicant, during cross‑examination, that the system maintained on the computer was "in a shocking state". 

6. So far as paper records were concerned, the third element of this issue related to what the applicant described as the "torching" of his car.  There does not seem to have been any evidence of this before the Tribunal, but it seems to have been generally accepted that there was a car and that there was a fire affecting the car in or about August 1998.  As we understand it, the applicant's suggestion has always been that there was a substantial quantity of records contained in that car which, of course, were destroyed.  The Tribunal appears to have accepted this.  Tribunal members suggested to the applicant a number of times during the course of the hearing that it would be desirable if he directed his efforts towards obtaining, from other former clients, records which might assist the Tribunal in reconstructing the way in which he generally ran his practice, but he did not produce any relevant records.  Subsequent to the torching of the applicant's own vehicle, there seems also to have been some damage to a rental car which he hired, but whether there was any issue relating to records contained in that car is not clear.

7. The fourth element of this issue which was asserted by the applicant was that there was a file, or series of files, containing documents which were, or may have been, of importance to one or more of the references, which went missing at an early stage during Mr Novell's inspection.  During cross‑examination by the applicant, Mr Novell agreed that there was a morning in January of 1999 on which he had gone to the applicant's office and on which the applicant had been told by an employee, a Ms Lucas, that a file, or something of that nature, was missing.  Mr Novell's evidence was that he understood that there had been an extensive search for that material.  In relation to this particular reference, we should add that it was put to Mr Novell by the applicant, during cross‑examination, that as well as a file going missing, a computer‑generated copy of certain material had been deleted from the computer by a person unknown, but Mr Novell was, of course, not in a position to comment on that allegation. 

8. The allegation in this reference was that on two occasions when acting for Mr Aurthaveekul, the applicant received trust moneys and failed to deposit them into his trust account. 

9. The first amount is one of $6000. In a letter dated 11 August 1998, the applicant requested payment of $6000 to cover what, from the terms of the letter, are clearly estimated disbursements in relation to work to be done by two experts, in the sum of $3000 and $2000, together with an additional $1000 which is described as an amount required to cover the applicant's costs "to date". On 22 September 1998, a cheque for $6000 was received from Mr Aurthaveekul and was banked into the applicant's general practice account. The only bill of costs which can be located which may relate to this amount is one which is undated, but which is headed: "Account for Legal Services June‑August 1998." The body of the account simply reads "[o]n agreed fee of $6,000.00", so that it is not a bill of the type contemplated by s 34A(b) of the Act. The evidence of Mr Novell was that when he went to the applicant's computer system, the only record of any date in relation to that account which he could find was a record of the file being opened on the computer on 7 March 1999, the day before his inspection. It was alleged that on 15 October 1998, the applicant paid accounts raised by the two experts in question of $1160 and $2799 respectively from the general practice account. Those amounts do not appear to be featured on any bill of costs.

10. As to the second amount, it was alleged that on 29 October 1998, the applicant received a further $8000, which was banked into his general account.  Again, the only bill which may be relevant to this payment is one which is undated, but headed:  "Account for Legal Services 1 September‑25 October 1998."  It deals with solicitors' and secretarial costs and photocopying, and is expressed to be in the sum of $8000.  Again, the only date which can be found is the date of the computer record of 7 March 1999. 

11. What the applicant said about this reference in his preliminary oral answers to the Tribunal was, as the Tribunal noted, "confused and conflicting".  In relation to the $6000, he agreed that he requested it, but was not sure of the date, and he agreed that it was paid to him.  He asserted that he had done over $10,000 worth of work at the time and that the $1000 requested was a "token fee".  It is not clear what relevance the applicant thought those assertions had. 

12. He said that he had paid the money into the general account because that was "the arrangement".  There were conflicting accounts of the arrangement, but the thrust of it seemed to be that the consultants had required that the amount go into the general account, in order that they could be certain that they would be paid, and that Mr Aurthaveekul, who was present at a meeting at which this was discussed (although he had limited English) "had no objection".  The applicant said that he was not at liberty to tell the Tribunal why such an arrangement had been made, because that matter was confidential, but indicated that it was something to do with a "bad experience" that the consultants had had in relation to another matter. 

13. The applicant's answers at pages 24 and 25 of the transcript display complete confusion on his part as to what is required by s 34A of the Act. He seemed to be unable to distinguish between a bill of costs, and a request for money to be paid in advance on account of costs and disbursements. The relevant questions and answers are as follows:

    "At the time you received the moneys from Mr Aurthaveekul and paid them into your general account you hadn't rendered him a bill, of course, for your fees and disbursements, had you?‑‑‑I think he was.  I think he had received a bill for $6000.

    In relation to these fees or not?‑‑‑In relation to these specific fees.

    Are you sure about that? You don't have any papers in front of you?‑‑‑I don't have the papers in front of me.

    So you think from your recollection that you may have sent him a bill?‑‑‑Of course.  I think a letter was sent to Thailand telling him to produce the 6000 or nobody would be doing any work.

    That wasn't quite what I asked?‑‑‑No.

    I didn't ask whether you wrote him a letter requesting the money.  I asked you whether you sent him an account?‑‑‑I believe he was given an account and he was told it would be $6000, and at that stage there must have been on the file on the time cost billing the better part of $20,000 worth of work done at least.  Mr Aurthaveekul has got the habit of inviting people to the restaurant.  We sat in the restaurant for 5 or 6 hours while he went and discussed in detail what he thought had gone on and what had gone wrong."

14. As to the $8000, the applicant said it was "already owed" and that there had been a bill rendered for more than $8000.  As to both amounts, the applicant said that Mr Aurthaveekul never paid in advance, and that he might have paid the $6000 in advance, but that the applicant did not think so.  He said there had been accounts rendered for $6000, $8000 and $12,000.  He said that there was a written authority from Mr Aurthaveekul to pay the money into his general account, but that Mr Aurthaveekul took that with him when he returned to Thailand.  However, he appeared to suggest that the written authority was signed only at the completion of the matter in which he was acting. 

15. In relation to this reference, and in relation to other references, particularly R12 of 2000, the applicant raised an issue of legal professional privilege.  When Mr Novell gave evidence that he inspected client files of Mr Aurthaveekul in order to attempt to ascertain whether there had been any bills of costs rendered in respect of the $6000 or the $8000, the applicant objected that those documents were privileged.  There was some legal argument in relation to that issue, and the Tribunal ruled that material which Mr Novell had obtained as a result of his inspection of the files of the applicant was admissible.

16. On 31 October, the applicant conceded to the Tribunal that in respect of this reference, there was $6000 that "shouldn't have been dealt with in the way that I dealt with it". On 1 November, he conceded that in relation to the first $6000, there was "no defence". He further said that in relation to that reference, there was an account, or series of accounts, given to Mr Aurthaveekul, but he conceded that there was no accounting "in terms of section 34".

17. He called one of the expert consultants to give evidence which the Tribunal understood to be directed to matters of mitigation.  That witness gave evidence that he would not have accepted any arrangement which would have required him to have to wait for payment to be authorised. 

18. As to the $8000, the Tribunal did not accept the applicant's assertions that he was instructed to pay it, or any other sum, into the general practice account.  It found that the payment of the sums into the general account was in breach of the Act, a finding which appears plainly to have been open.

2.3 R12 of 2000 - Ms Gilchrist

1. This reference alleged that between 14 August 1997 and 25 November 1998, the applicant failed to pay into his trust account certain moneys set out in an annexed schedule, and which represented wholly future costs and disbursements, or alternatively, partly future costs and disbursements and partly costs and disbursements already accrued, but in respect of which no bill of costs had been raised.  In the form in which it was finally placed before the Tribunal, it was alleged that upon requests made of Ms Gilchrist by the applicant, she from time to time paid to him cheques (12 in total) in an amount of $22,450 (submissions in reply of the Legal Practitioners Complaints Committee), for which no bill of costs had been raised.  It was further alleged that those were paid into the practice bank account or cashed by him, rather than paid into the trust account.

2. The reference arose out of what was called either the "Colonnade" or the "shopping centre" action.  Ms Gilchrist was one of a number of clients, each of whom was apparently the lessee of a shop in a shopping centre which went under the name of "The Colonnade".  They all had a complaint of a similar nature against the former owners and managing agents of that shopping centre.  It was the subject of an action in the Federal Court in which those clients instructed the applicant.  It was in due course settled. 

1. It is even less clear in respect of this reference than it is in respect of the others, what the applicant's answer was.  In the oral answers he gave at the outset of the Tribunal hearing, the applicant said, in effect, that there had been many payments in that action.  He could not recall the particular ones about which he was first asked.  He certainly had requested money, not only for his own fees, but for the forensic accountant he engaged.  He could not recall whether at the relevant time he had sent Ms Gilchrist any bill of costs for his fees.  He said that the car which had been destroyed by fire had contained "the Colonnade files".  A little later, he said that "[m]ost certainly" she had accounts rendered.  He said that there were five statements by five other clients in that action to the effect that "every cent has been accounted for" and that they had been given accounts.  He said the money to pay counsel was paid directly to Jackson McDonald.  He said that the clients had had "accountings" of the money and that every couple of weeks there was a meeting at which all of the clients were present. 

2. The applicant did agree that most of the cheques from Ms Gilchrist were placed into the general account, although he had a recollection of one being cashed to meet some pressing expense connected with the litigation.  It should be noted that it is impossible to tell from the answers given at this point by the applicant whether, in saying that money was "accounted for", he meant that money was only paid to him after he had rendered a proper bill of costs for it, or whether he was simply indicating that he had told the clients what their money would be spent on, or had been spent on, at the various meetings to which he referred. 

3. Ms Gilchrist's evidence was that she had received a number of accounts which she identified.  She paid an amount in the order of a little over $67,000 by way of costs.  The Tribunal mentioned from time to time the calculations it made in respect of various amounts of costs for which there both were, and apparently were not, bills rendered.  It was clear that not all of the payments made by Ms Gilchrist were, on her evidence, the subject of bills of costs.

4. It appeared that Ms Gilchrist had at times worked in the applicant's office in order to keep costs down.  A letter from the applicant to all the Colonnade clients dated 9 November 1998 refers to his gratitude to Ms Gilchrist both for her assistance in keeping secretarial hours down, and for the loan of some bookshelves. 

5. The applicant called a witness who was one of the clients in the Colonnade action.  She said she had been given accounts.  She said the payments that she made to the applicant were in response to accounts, but that she did not have the accounts with her and that she would object to producing them on the basis that at a meeting attended by the applicant and the Colonnade clients other than Ms Gilchrist in April 2000, it was agreed that those accounts were confidential.  That objection was said somehow to be linked to the settlement of the action and the deed of confidentiality signed, but there was no evidence to suggest why accounts rendered by the applicant to his own clients would have been dealt with as confidential in that deed.  It appeared that the witness had not been present at the meeting where that decision had been made, but had been informed about it by her husband, so that she was not really able to assist. 

6. In the applicant's cross‑examination of Ms Gilchrist, his focus was upon whether he had had accounts to pay from other people (such as counsel or the forensic accountant), whether he had done the work, and whether clients had meetings at which they were informed about the progress of the action.  In response to a question from the Chairman during the course of his cross‑examination, the applicant indicated the following, at page 182 of the transcript:

   "I think these funds were taken - moneys were taken out of my general account, paid to keep Mr Christie's - a classic case in point.  I paid moneys out and when the moneys were received back from the client there was only reimbursement of moneys that I had in fact paid."  [Mr Christie was an expert of some kind.]

7. It seems to us that the applicant was saying that when he asked Ms Gilchrist for money, he only did so when he had already disbursed his own funds out of the general account in relation to the Colonnade litigation and that he was able to put payments from Ms Gilchrist into his general account, because that was only reimbursement of what he had already paid.  It appears that he took a similar view in relation to work done; that is, that there was no difficulty with his asking Ms Gilchrist to pay moneys provided that he had already somewhere recorded that he had done work at least equivalent in value to the money sought.

8. The problem with all of this, as the Chairman and other members of the Tribunal repeatedly sought to explain to him, was that it was not being suggested by the reference that he had stolen the money, but rather that he had failed to pay it to his trust account, or render proper bills of costs.  After a short adjournment on 24 October, the applicant said that after discussion with his office administrator, it appeared to him that he "might not have an answer" to the proposition that he had not properly accounted for the moneys paid to him by Ms Gilchrist, and that, in particular, there had not been appropriate bills of costs raised in relation to them. 

9. There was issue taken by the applicant with Ms Gilchrist's evidence that she had on more than one occasion asked him to provide an account showing where the moneys had gone.  Although it occupied some time, it was not strictly in issue on the reference.  On a number of occasions, the Tribunal suggested to the applicant that he should, if he had provided accounts to other clients in relation to all of the sums paid in respect of the Colonnade matters, ask those clients for copies of the accounts, since it appeared that he sent similar, or identical, accounts and letters to each client.  He repeatedly indicated his willingness to do so, but did not. 

10. On 1 November 2000, the applicant conceded that Ms Gilchrist "wasn't given an accounting for the moneys".  He also said that there seemed to be a problem with the accounts in the sense that he had searched his "post out" books to see if accounts had been sent, but could not find entries for them.  In the end, he made that concession only in relation to about $20,000 worth of costs, there being three payments in August and September of 1998 which he said had been paid into his general account properly after accounts had been rendered.

11. The Tribunal found this matter proved.

2.4 R5 of 2000 - Failure to respond

1. This reference alleges that between 29 January 2000 and 19 June 2000, the applicant was guilty of unprofessional conduct in that he failed to give to the Complaints Committee within the time limited in that regard, or within a reasonable time, a full and frank response to certain inquiries made of him by the Committee.  The inquiries related to Ms Gilchrist.  The Law Society's Professional Conduct Rules, r 1.4, state that it is the duty of every practitioner to respond within time and in the manner required by the Legal Practice Board to any requirement of the Board for comments or information on a complaint.  That body had by the relevant time been replaced by the Complaints Committee, so the rule should be read as applying to that body.

2. By letter dated 27 January 2000, Mr Jordan advised the applicant that the Complaints Committee had received an enquiry from Ms Gilchrist. The letter said that the matter was "as an enquiry only" at that stage and not as a formal complaint; it foreshadowed, however, that there were certain matters which appeared to be "highly unusual", and that it was not unlikely that there would be further investigation as a complaint, or pursuant to s 25(1)(c) of the Act. A series of detailed allegations was made and a written response was sought within 14 days. A further letter of 1 February 2000 from Mr Jordan to the applicant referred to a telephone conversation of 31 January 2000 and confirmed that the applicant would provide certain materials to Mr Jordan. A letter of 10 February 2000 referred to the earlier letters and noted that there had been no response, other than the telephone conversation. It advised that the matters the subject of the first letter were now the subject of a "formal enquiry without complaint", pursuant to s 25(1)(c), and further advised that unless a full and frank response was received by 5 pm on 14 February, there would be referred to the Complaints Committee the question of whether an application should not be made to the Supreme Court for an order suspending the applicant from practice pending the conclusion of the inquiry.

3. There was apparently then some discussion between the applicant and Mr Jordan.  On 15 February, the applicant provided a variety of computer‑generated documents and a covering facsimile.  By letter dated 29 February 2000, Mr Jordan sought elaboration of, and clarification of, the material contained in those documents.  Mr Jordan then wrote on 19 April 2000, seeking a full and frank response to the letter of 29 February.  There was apparently a discussion on 5 May and some documents were provided to Mr Jordan, but in Mr Jordan's view (and in the view taken in due course by the Tribunal) nothing in that material addressed the matters raised in the earlier letters. 

4. In his oral answers before the Tribunal, the applicant said in relation to the letter of 27 January 2000 that he did not recall seeing it and that he had moved from one office suite to another, apparently within the same building, so there was a possibility of misdelivery.  He did, however, see a letter of 28 January, which made a small correction to the matters contained in the first letter.  He did receive the letter of 1 February.  He recalled "dozens" of telephone conversations with Mr Jordan.  He also recalled "dozens" of letters.  The applicant said that although there had only been one written response, in the form of the covering facsimile and the provision of a variety of documents, there had been "dozens" of oral responses to the inquiries made of him.  Further, a Mr Novatscov, who was apparently one of the clients providing a disproportionate amount of funding towards the Colonnade action, refused to provide information relating to his accounts to the Complaints Committee.  It is not clear why this meant that no written response could be provided. 

5. The applicant asserted to the Tribunal, apparently in connection with this reference, that he had made complaints about a number of people which had not been properly investigated, and that others had made complaints about him which had no substance.  He agreed with a suggestion from the Chairman that he was suggesting that there was a conspiracy against him.  The applicant also cross‑examined Mr Jordan for some time about why certain complaints against him had been followed up and what had been done in relation to other complaints made by him.  Much of that cross‑examination is difficult to follow, because the details of the various complaints are not in evidence, and are not explained by the applicant.  In relation to this and a number of "non‑response" references, the applicant said, during the course of cross‑examining Mr Jordan, that at some stage he went to the Complaints Committee's office and explained to Mr Jordan that he was "outraged" that a particular complaint had come in against him, and informed Mr Jordan that that was "the final straw that broke the camel's back".

6. On 1 November 2000, the applicant conceded that he had not provided a full and frank response to the inquiries referred to.  He added:  "There were attempts, as Mr Jordan's evidence, to accommodate him, but it's clearly that it has not been good enough." 

7. The Tribunal found that there was a failure to give a full and frank response to those inquiries.  The inquiries were, the Tribunal found, related in the main to financial aspects of the Colonnade litigation and were queries as to why the applicant had failed to pay moneys to his trust account, or to give accounts required by law.  The Tribunal found, as in our view it was open to it to find, that the conduct disclosed either a deliberate attempt to conceal the true state of affairs regarding the way the applicant dealt with moneys received from various tenants, or a complete lack of understanding of the duties of a solicitor in relation to the keeping of trust moneys. 

2.5 R7A and R7B of 2000 - Failure to comply with orders

1. These references related to failure to comply with the orders made by the Tribunal to file answers to references 14A and 14B of 1999.  The only response the applicant made in relation to these references appears to have been that he had lost many of his records when his car was set on fire and when certain files disappeared.  He apparently made no attempt to seek an extension of time within which to file answers, and nor did he attempt to file even partial answers.

2.6 R6 of 2000 - Failure to respond (Fergus)

1. This is another allegation that between stated dates, the applicant failed within the time requested, or a reasonable time, to give a full and frank response to certain inquiries made by the Complaints Committee.  Oddly, the failure was in relation to a complaint made by a client of the applicant, supported by the applicant, concerning another person. 

2. The applicant and his client had alleged that the other person had misappropriated $100,000 from the applicant's client.  By letter to the applicant dated 26 April 2000, the Complaints Officer sought a response to a question as to whether the applicant had issued a writ in connection with that matter, which he had said he was going to issue, and as to how far a police inquiry into the matter had progressed.  That letter also advised the applicant that the other person had lodged a complaint against the applicant and inquired whether those matters were to be the subject of litigation.  The reason for that letter was, as it was explained in evidence, that the Committee would generally refrain from investigating a matter which was the subject of uncompleted litigation or of a police inquiry, until those other matters had been finalised.  There were follow‑up letters seeking the same information.  No response was ever received. 

3. The applicant's response to this reference before the Tribunal was to agree that he had received some letters.  However, it was his view, and his client's view, that nothing would be done about his complaint and, that he was being singled out by a conspiracy against him.  The "camel's back" was mentioned by the applicant.  In addition, in his cross‑examination of Mr Jordan, the applicant asserted that his complaint in relation to this person was not missing money, but that the person was "going around uncertificated and practising as a lawyer".  Mr Jordan's response was that for him that would have "paled into insignificance" when he was also told that a practitioner, certificated or not, had stolen $100,000 from his client.  It may be then, that the applicant thought the gravamen of his complaint about this person was that the person was acting as a legal practitioner while uncertificated, while Mr Jordan thought that the gravamen of the complaint was the theft of the money.  Even if that is so, it does not justify or explain a failure to respond in relation to an inquiry about a matter initially raised by the applicant himself. 

4. On 1 November, the applicant conceded that he failed to give a full and frank response to those inquiries.  The Tribunal, of course, found that matter proved.

2.7 The Tribunal's conclusions generally

1. Having made the findings which we have outlined, the Tribunal found that, notwithstanding the support he received from some of his clients, the applicant's apparent lack of understanding of his obligations as a solicitor made him unfit to practise.  That lack of understanding was, the Tribunal found, related to the necessity to keep proper accounts, to separate his own money from money held on trust for others, to have proper agreements for costs if acting on special arrangements, to give a proper accounting to his clients, and to comply generally with his obligations under the Act.  The Tribunal therefore determined that it should make and transmit a report on the references to the Full Court and, pending the determination of the Full Court, suspended the applicant from practice.

2. The submission which was made to the Tribunal by counsel for the Complaints Officer was that normally each of the references would be such as to warrant the imposition of a fine.  However, it was submitted that the applicant's conduct of the references was such as to demonstrate no understanding of his responsibilities to his clients, to other members of the profession, or to the Tribunal.  A submission was sought to be developed to the effect that the basic incompetence and lack of efficiency in the conduct of the reference itself demonstrated that the applicant was not a person who should be permitted to represent clients.  However, the Tribunal, during the course of argument, rejected that latter submission, noting that what was sought was the imposition of a penalty for specific allegations, and that there was no general allegation of incompetence. 

3.  The appeal and other proceedings in this Court

1. Although the matter with which we are concerned is the attempt to reinstitute the appeal FUL 7 of 2001, there are related proceedings in this Court which should be mentioned.  An overview of the proceedings, grouped by the proceeding number, and commencing with that which was first filed in this Court, is as follows. 

3.1 LPD 3 of 2000

1. The Tribunal having made its determination on 27 November 2000, McKechnie J heard ex parte on 29 November 2000 an originating motion seeking to restrain the applicant in relation to his dealings with his trust account and general account.  He granted an injunction.  It was varied on 25 May 2001, and was dissolved by consent, with liberty to apply, on 20 December 2001. 

2. The only significance of LPD 3 of 2000 is that the applicant has from time to time complained that the number given to the Tribunal's reference to this Court had, at some time, been "changed" from LPD 3 of 2000 to LPD 1, and that this had caused him some confusion and difficulty in dealing with the reference and with other matters.  There has been no change of number.  The injunction proceeding was a separate proceeding.

3.2 LPD 1 of 2001

1. On 11 January 2001, the Legal Practitioners Complaints Committee filed an originating motion, seeking that the applicant be struck off the roll of practitioners.  Between January 2001 and December 2002, no action was taken on it, pending the determination of the applicant's appeal in FUL 7 of 2001.  It was listed and adjourned on 25 July 2003 and there was leave granted to amend the notice of originating motion on 31 October 2003.

2. On 28 November 2003, the applicant filed a "motion for recusal and ancillary relief".  Its date becomes significant later.  It sought that a Full Court be appointed to hear the matter comprised of Judges other than current or past members of the Supreme Court of Western Australia, and a directions hearing before a Full Court so comprised, for the purpose of determining some 26‑odd matters.  It is not easy to categorise those matters.  Broadly, they relate to applications by the applicant to adduce a variety of evidence, which he asserts not to have been available to him at the time of the hearing of the references, discovery of a large quantity of material from the Complaints Committee and from others (for example, par 6 seeks that the applicant be given leave to make an application for discovery of "any press releases distributed by the legal authorities in Western Australia and which might have been provided to the 'West Australian' newspaper … in matters involving the Appellant"), that the applicant be given leave to introduce a variety of other evidence (for example, par 4 seeks leave to make an application to introduce evidence "relating to the lack of ethics prevalent in the Legal profession generally in Western Australia"), applications to restrain the firm of solicitors instructed by the Complaints Committee from acting against the applicant, both in relation to the motion for striking off and in unrelated matters and a variety of applications which, although they may in some way be said to arise out of either the investigation or the hearing of the reference or matters subsequent to it, have no relationship whatever to the applicant's fitness for practice (for example, par 14 seeks that the applicant have leave to institute a private prosecution for criminal defamation). 

1. On 5 December 2003, the originating motion to strike the applicant off the roll was listed for hearing together with his motion for recusal.  For reasons which we later describe, both motions were adjourned sine die and, in addition, an order was made to the effect that the applicant "be at liberty to make application to the Full Court by 29 February 2004 to reopen FUL 7 of 2001".  From that date forward, FUL 7 of 2001 and this proceeding have become hopelessly confused, in the sense that numerous motions filed by the applicant bearing the number of this proceeding actually relate to FUL 7 of 2001, and perhaps vice versa. 

3.3 FUL 7 of 2001

1. On 22 January 2001, the applicant filed a notice of appeal against the orders made by the Tribunal.  The history of the matter so far as it relates to attempts to settle an appeal book index is set out in detail in the reasons of the Full Court in Lashansky v Legal Practitioners Complaints Committee [2002] WASCA 326 (which is the dismissal decision) at [4] through to [27]. The position can be summarised sufficiently for present purposes by noting that, in the light of the failure to settle any appeal book index notwithstanding numerous attempts by the respondent to ensure that was done, the respondent on 17 September 2001 filed an application to dismiss the appeal for want of prosecution. On 20 March 2002, the Full Court made a springing order striking out the appeal unless the appeal book index was settled by 12 April 2002 and the appeal entered within seven days thereafter. That order was extracted on 5 April 2002 and sealed. Time for compliance with that order was extended on 26 April 2002 until 15 and 31 May respectively. The order as amended was not complied with, and by close of business on 31 May 2002 therefore the appeal was, by force of the springing order, struck out. The applicant subsequently made an application to the Master for a further extension of time, which application was listed before the Master on 7 June 2002 and was referred by the Master to the Full Court.

2. On 22 May 2002, the applicant filed a motion seeking discovery of documents.  He sought "early discovery" of documents the subject of subpoenas served on the Law Complaints Officer in October 2000.  The subpoenas are not otherwise identified.  Having regard to the date, they cannot have been subpoenas related to a matter then pending in this Court.  It was explained in due course by the applicant before the Full Court on 24 July 2002 that they related to material which in his view should have been produced before the Tribunal.

3. On 24 July 2002, the Full Court heard the applicant's motion to extend time, the applicant's motion in relation to the return of subpoenas, and the respondent's motion to dismiss the appeal for want of prosecution.  The course which that hearing took should be set out in some detail.

3.4 The hearing on 24 July 2002

1. The hearing commenced with the applicant explaining to the Court the import, in general terms, of the information which he sought.  At page 52 of the transcript he said:

   "There is evidence and the tribunal has accepted it somewhere in the transcript.  There are no moneys missing and that has been accepted by the tribunal but I have been suspended and I have been suspended for 20 months and the reasons for the suspension, chief justice, are particularly enlightening in light of what we now read about the Mickelbergs and we now read about Clayton Utz and their conduct of the tobacco litigation and we now read subsequently about the Sydney QCs with an aversion to paying income tax - aside from the point.

   The point and the relevance of the information that I now seek - I complained, chief justice, about these practitioners.  I complained bitterly about these practitioners.  I complained about Mr Ian Robert Fergus practising without a practising certificate. Nothing was done, sir. Eventually, around about April 2000, I said, 'Well, for better or for worse I will do nothing further,' and that has been the result of the references with failing to deal with matters of the committee.

   Sir, it's high time, I would suggest, that these matters that I complained about and my own conduct be investigated by independent persons and more appropriately perhaps that the Full Court would like to investigate the conduct of what has gone on in all of these matters."

2. So far as one can tell, the relevance of the material sought was said to be that it would demonstrate that the applicant had complained bitterly about other practitioners and that nothing was done in relation to his complaints.  The Mr Fergus referred to is the subject of reference 6 of 2000.

3. There was then some discussion between the applicant and the Court about progress in the appeals.  At page 58, Malcolm CJ summarised the Full Court's understanding as being that the applicant was saying that he was ready to file the appeal books as soon as the Registrar confirmed that the index was settled.  The submissions of the respondent in relation to that matter involved demonstrating to the Court what steps had and had not been taken in relation to settlement of the index, and also involved a submission that, to the extent that the index had been settled or partially settled, that had been done without the attention of the Registrar being drawn to concerns which the respondent had with it.

4. During the course of the hearing, the applicant referred, at an early time, to a "major development".  He said that he had found certain documentation which had come to light on the previous Friday and was attached to an affidavit which he had sworn on 23 July.  He said that "the remainder of the story" (and it is not entirely clear at the time whether he was talking about the story of his efforts to have the appeal heard, or the story of his efforts to find documents) was set out in that affidavit, of which he handed up three copies.  In doing so, he said:  "I apologise for the late filing."  In fact, an inspection of the Court file reveals that the document had not then been filed, and has never been filed in exactly the form which it then took.  There is on the file a document described as the applicant's affidavit sworn 23 July 2002 and "resworn 24/12/03", which was filed on 24 December 2003.

5. So far as the subpoena application was concerned, the Court on many occasions attempted to clarify with the applicant what it was that he was seeking to have the Court do on that occasion.  He was asked, for example, whether he was applying for permission for fresh evidence to be adduced on the hearing of the appeal, or simply foreshadowing that he would make such an application when the appeal was heard.  His response to that simple question was:  "Sir, I have to bring the evidence.  The application for my Colonnade clients' evidence - there were seven clients.  Five or six of them have given affidavits that every cent is accounted for …. " (transcript page 63).  It was suggested to the applicant that he should seek leave to issue a fresh subpoena to have the documents that he sought produced before the Full Court.  In discussing whether such an application should be made or was being made, the relevance of the documents was again canvassed.  The applicant suggested that the Complaints Committee was biased against him, and the Court pointed out that his references had been heard by the Tribunal and not before the Committee. 

6. The Court repeatedly suggested that it would be desirable if the applicant could identify what documents he sought and the reason why he needed them for the purposes of his appeal.  For example, at page 68 of the transcript Malcolm CJ said to the applicant:  "If you could identify what those documents are and the reason why you need them for the purposes of your appeal it would be very helpful."  In response, the applicant described a complaint received against him in relation to a dispute between two clients, which complaint he said was ridiculous.  At page 69, Malcolm CJ said:  "I'm sorry to interrupt you again but I cannot see the relevance of anything that you have told me in the last 10 minutes to the question of whether or not you should have leave to issue a subpoena … ."  That discussion goes on for many pages. 

7. Eventually, at page 82, the applicant, being asked to briefly describe the evidence which the Tribunal ought to have heard, said:  "They should have heard … the documents that are in your possession that I have handed up today."  The Court, of course, pointed out that those documents therefore did not need to be subpoenaed, since the applicant had them, but his response was:  "Well, I don't know if I have all of it." 

8. At pages 84 to 85, it became clear that the applicant did not know what documents were held on the files of the Legal Practitioners Complaints Committee which were relevant, but asserted that if he could go through the files, he would ascertain which were relevant and which were not.  It was pointed out to him that he was not then in a position to make an application, and he then sought the documents not by way of subpoena, but by way of pre‑trial discovery.  In the end, at pages 86 ‑ 87 of the transcript, the Chief Justice suggested that one way of dealing with the subpoena issue might be to give the applicant an opportunity to prepare some written submissions so that he could identify what documents or classes of documents he required, what was the issue on the appeal to which they related, and why he needed to have them.  The applicant said that he was prepared to do so.

9. In relation to the subpoena issue, the respondent's submissions were broadly that it was difficult to see (as indeed it was) what the relevance of the documents could conceivably be, assuming that one could identify the sorts of documents which the applicant wanted.  They appeared to be largely documents relating to reference 12 of 2000 (the Gilchrist reference), in respect of which the relevant issues were whether moneys which were trust moneys were not paid into the trust account (and it was clear that they were not) and whether proper accounts were rendered in relation to them.  It was clear before the Tribunal, of course, that there had been some written requests for payment, and some accounts, and some receipts.

10. The respondent's counsel suggested that it was likely that he could get some agreement from his client to provide what the respondent considered to be relevant, so that documents might be made available without the need for any order.  He made it clear that he could not give an undertaking, since there was no‑one present to instruct him, but that he undertook to take what steps he could to have relevant documents provided.

11. Finally, when the applicant was asked by the Court if there was anything else that he wanted to say in relation to his application for an extension of time, he advised the Court that the respondent had "changed the file", explaining that he had been looking for documents on file LPD 3 of 2000 and that the listing co‑ordinator had only established after a search that "these documents" (which appear to have been some of the documents which were exhibits before the Tribunal) had been put on LPD 1 of 2001. That was not the case. The different nature of the applications has been explained. He also referred to difficulties under which he laboured because he was suspended from practice and no longer had a legal secretary. It was left to the respondent's counsel to put, very fairly, the main point in the applicant's favour, which was that the appeal was one of considerable practical importance to the applicant. Because of the conclusive nature of the report of the Tribunal as to all facts and findings it contained pursuant to s 30 of the Act, if the applicant were unable to pursue his appeal, then the Court would accept, for the purpose of the application to strike his name from the roll of practitioners, that those findings were correct.

12. It was by then very late in the day, and, the respondent having completed its submissions, the Chief Justice advised the applicant that he could not be heard in reply orally, but that if there were any submissions which he wished to make in reply, he should do so in writing within seven days.  Orders were made then adjourning the Court to a date to be fixed, and the Court reserved its decision.  Having regard to the discussion immediately preceding those announcements, it seems clear that what was adjourned was the applicant's motion in relation to the subpoenas, which would need to be dealt with if the appeal remained on foot, and that the decision was reserved in relation to the application to dismiss for want of prosecution.

13. Subsequent to the hearing of this application, the applicant undertook a number of activities referring to this appeal number.  He did at some stage provide a document of some 70 paragraphs by way of written submissions in reply, as he had been given leave to do.  He wrote to the Associate to the Chief Justice a letter dated 19 September 2002, to which we will return. 

14. The applicant also filed, under the number FUL 7 of 2001, a document entitled "Motion for Lifting of Suspension and Discovery of Documents", dated 15 November 2002.  It sought orders that the time limited for the bringing of the application and the rules relating to service be abridged (it is not clear why the matter was of such urgency, but this is an order usually sought by the applicant on the motions which he files).  It sought a stay of the order of the Tribunal suspending him from practice pending the determination of his appeal, or pending an application which he foreshadowed to have the matter "remitted into the original jurisdiction of the High Court of Australia".  It also sought discovery of certain press releases provided to The West Australian newspaper and of material provided to the Law Society in relation to legal proceedings involving the applicant and another practitioner.  In support of that application, the applicant filed an affidavit of his own filed 18 November 2002 (sworn 15 November and so sometimes, in these proceedings, referred to by that date) entitled "Affidavit … in support of lifting suspension".  There was also an affidavit of the same date from a Mrs Fussell which merely purported to confirm the contents of the applicant's affidavit insofar as the matters it contained lay within her knowledge.  There were filed also on 20 November 2002 an affidavit from Mrs Tailor and an affidavit from a Mr Simmonds (sworn 19 November 2002).  These three bore in their titles only the deponent's name, and did not refer to any application in support of which they were filed. 

15. That motion was heard by the Full Court, with a coram different from that which had heard the application to strike out the appeal for want of prosecution, on 20 November 2002.  On the same day, that coram dismissed the motion seeking a stay of the orders of the Tribunal (Lashansky v Legal Practitioners Complaints Committee [2002] WASCA 344). The leading judgment was that of Murray J, with whom Miller J and Rolfe AJ agreed. His Honour noted the existence of the appeal, and noted that the earlier coram had reserved its decision in relation to the question of the grant or refusal of an extension of time in which to enter the appeal for hearing. At [2] of his reasons, Murray J noted that the basis of the application for a stay was effectively that the applicant submitted that he had good prospects of success in his appeal. Those submissions can only have been based upon the affidavits of 18 and 20 November, to which we have referred. While the Court was prepared to assume that there was power to grant such a stay, it took the view that it was inappropriate to do so in circumstances where there was an appeal before the Full Court which might or might not proceed and where there were the pending proceedings in LPD 1 of 2001.

16. On 4 December 2002, the Full Court delivered its reasons in the dismissal decision.  It dismissed the applicant's appeal, for want of prosecution.  The applicant did not appear on that occasion. 

17. On 18 December 2002, the orders made on 4 December 2002 were extracted.  The position now, therefore, is that there is a perfected order of the Court finally dismissing the appeal.

3.5 Proceedings subsequent to 4 December 2002

1. As we have noted, on 28 November 2003, the applicant filed a motion for recusal and other ancillary relief in LPD 1 of 2001.  On 5 December 2003, the originating motion to strike the applicant from the roll was brought on for hearing, together with the applicant's motion for recusal.  We deal in more detail shortly with what was said at that hearing.  The result was that both motions were adjourned sine die and that, in addition, the Court made an order that the applicant be at liberty to make application to the Full Court by 29 February 2004 to reopen FUL 7 of 2001.  Briefly, the most significant of the various subsequent applications and hearings are listed below, together with their date and matter number.  It can be seen that the various matter numbers have become confused, primarily because many of the applicant's motions purported to be filed in LPD 1 of 2001.

2. 18 February 2004 - LPD 1:  Applicant files motion for directions, for an extension of time within which to bring the application for the reinstatement of the appeal in FUL 7, and other relief.

3. 20 February 2004 - LPD 1:  Court extended time within which the applicant could apply to have the orders of the Full Court dated 4 December 2002 vacated until 12 March, and directed that that application be case‑managed by Templeman J, who would deal with any further interlocutory applications.

4. 12 March 2004 - LPD 1:  Applicant's motion to have the practice certificates of various practitioners summarily cancelled within the inherent jurisdiction of the Court (duplicating some of the matters dealt with in the motion of 18 February 2004).

5. 12 March 2004 - FUL 7:  Applicant's application seeking orders that the appeal be reinstated and seeking other directions.  That is the application which seeks, inter alia, the proposed orders set out at the commencement of these reasons.

6. 5 April 2004 - LPD 1 and FUL 7:  Directions hearing before Templeman J giving the applicant leave to amend the notice of appeal, requiring the respondent to provide the applicant with a list of certain documents, giving the applicant leave to file and serve further affidavits and dismissing the motion 12 March 2004 to strike various practitioners off the roll.

7. 19 October 2004 - FUL 48 of 2004:  McKechnie and Jenkins JJ hear and dismiss the applicant's appeal from the decision of Templeman J dismissing the motion that certain practitioners be struck from the roll.  During the course of those reasons (Lashansky v Howell & Ors [2004] WASCA 252), their Honours observed that, "[t]he appeal FUL 7 of 2001 has been reinstated as of 4 February 2004" (at [4]). That was plainly incorrect, and the applicant must have known it to be incorrect, since there was no record of any hearing at which an order reinstating the appeal was made.

8. 22 November 2004 - LPD 1:  Steytler and Templeman JJ make further directions concerning discovery, extending time again for an amended notice of appeal, giving the applicant further liberty to file further affidavits bearing on the appeal, but not making directions in respect of the applicant's applications in relation to a proposed contempt summons against a variety of practitioners, a taxation of costs in an unrelated matter, and proposed criminal defamation proceedings against a newspaper.  They also refused to make directions in relation to an application for a stay of a costs order made by McKechnie and Jenkins JJ in FUL 48 of 2004.

9. 23 November 2004 - FUL 48 of 2004:  Applicant's application to the High Court for special leave to appeal in that matter.

10. 10 March 2005 - FUL 7:  Applicant's motion for further directions "in this appeal".  The majority, but not all, of those matters appear to relate to the application to vacate the earlier orders of the Full Court in the dismissal decision.  The motion also seeks that there be consolidated with the hearing of the appeal, allegations by the applicant "of the existence of a conspiracy by certain high profile Western Australian Legal Practitioners to injure the [applicant] … ".

6.5.4 Affidavits of Ms Carter 20 September 2004 and 21 September 2005

1. The first affidavit deals with a number of matters.  It largely repeats material found elsewhere.  Ms Carter deposes to problems with the computer system.  Ms Carter deposes that many documents went missing.  She disputes an account of a meeting with the applicant which is recorded in a file note of Mr Jordan, so far as it relates to a conversation between Mr Jordan and the applicant concerning Mr Aurthaveekul's matters.  Ms Carter does not say what, if anything, she recalls the applicant having said at the time.

2. There are a number of matters contained in Ms Carter's affidavit which tend to confirm the findings of the Tribunal in relation to the references 14B of 1999 (Aurthaveekul) and 12 of 2000 (Gilchrist).  So far as Mr Aurthaveekul is concerned, Ms Carter annexes as "KLC17" the undated account for legal services in respect of the period September to October 1998, in the sum of $8000.  She deposes that she believes it to be a "portion of the account that was being worked on by [the applicant's] secretaries …".  That is, her evidence tends to confirm the inference to be drawn from the evidence of Mr Novell, that this document was not an account actually sent at about the time of the date set out in the heading. 

3. So far as Ms Gilchrist is concerned, Ms Carter deposes at par 28 that no accounts in the Colonnade matter had been sent for any work since the end of June 1998.  This is the very period which the applicant had failed to concede in the Tribunal; he had alleged that payments in August and September had been made by Ms Gilchrist after proper accounts had been rendered.  She refers to a meeting on 16 June 1999 in relation to the Colonnade matter, which was apparently held between clients and the applicant.  She deposes that there was a "full discussion", which included a discussion of costs, and deposes that it was "always envisaged" that, during the course of the preparation of the bill of costs for taxation, "further particularity" would be provided to all of the Colonnade clients, all of which suggests that bills of costs had not been rendered. 

4. Finally, it should be noted that Ms Carter deposes that she set out to rectify certain of the weaknesses identified by the applicant's brother in his office systems, and prepared an office procedure document which was an improvement on that previously existing.  It is annexed as "KLC8".  The only portion of it dealing with financial matters is that found under the heading "Monies into the Practice".  That instructs that money coming into the practice must be recorded immediately, a photocopy of the cheque taken, details written into the deposit book, and "taken down to the bank and deposited into The Firm's account".  It instructs that cheques should be deposited as soon as possible after they come in, and that a receipt must be typed with one copy to the client and one to the file.  There is no mention of the distinction between trust account and other moneys.  There is no mention of a trust account.

5. The affidavit of 7 September 2005 deals in a little further detail with Mr Aurthaveekul.  It deposes that timesheets for the applicant's secretaries demonstrate that they were engaged in the production of accounts for Mr Aurthaveekul on 28 October 1998.  No account is however pointed to as having been produced or sent as a result.  It annexes a letter to Mr Aurthaveekul dated 10 September 1999.  The letter refers to, "The first account for $6,000".  Under that heading, the second paragraph reads, "The monies were utilised as per our agreement to cover the preliminary cost of Dryka, Peacock and myself".  The inference that arises from that sentence is that the money had indeed been paid for anticipated costs and disbursements, and no bill of costs had been rendered.  So far as the $8000 is concerned, the letter asserts that the account for $8000 "was sent on the 29th October 1998".  It is not clear where that information came from.  The balance of the letter deals with other amounts said to be outstanding.  Those amounts, and the amounts dealt with in the annexed detailed account dated September 1999, relate to a period after the period covered by the reference.

6.5.5 Affidavits of the applicant

1. An affidavit dated 12 September 2005 annexes a letter of Ms Oud and a proof of evidence of Ms Lucas.  Those women are former employees of the applicant.  He informed the Court at earlier directions hearings that he was unable to obtain affidavits from them, but had obtained some relevant material which he would seek to adduce, if it were in admissible form.  Directions were made which permitted him to annex that unsworn material to an affidavit of his own.  The Court indicated that it would then be for the coram at the hearing on 21 and 22 September 2005 to determine whether he should be given a further opportunity to obtain material in admissible form from those women. 

2. We are content to consider the material in its present inadmissible form.  It is irrelevant.  Ms Lucas, in her proof of evidence, does no more than indicate that in January 1999 she was at work when certain invoices, receipts and statements that were usually kept in a tray on her desk, were noticed to be missing.  She was advised by another employee that a manila folder which had once been full of entered invoices was also empty.  Ms Oud, in her letter, also refers to missing documentation and an unsuccessful search for it.

3. The affidavit dated 19 September 2005 yet again explains that the applicant seeks discovery of the respondent's files relating to complaints submitted by others against him.  He deposes that he believes that the "real underlying motivation" of the respondent will be discernable from an examination of those files.  He further deposes that he made several complaints against other practitioners of a serious nature which were "simply ignored". 

4. Presumably, it would always have been within the applicant's power to outline very briefly, the substance of the complaint which he made against each practitioner, the date upon which he made it, and the nature of the response, if any, which he received.  Presumably, he could also have outlined briefly the nature of the complaint made against him by those complainants with whom he is concerned, his response, and the action, if any, taken by the Complaints Committee against him.  He has not done so.  Rather, in this affidavit as in so many others, he asserts, forcefully, but without any objective supporting material, his belief that an examination of "the files" will reveal some wrongful motivation on the part of the respondent. 

5. The two problems with this approach, in this affidavit as in all others, are: first, the absence of any material which would elevate the application above the level of a fishing expedition; and, secondly, the fact that the references were heard not by the respondent, but by the Tribunal, in proceedings which were recorded and which display no evidence of bias or malice. 

6. The balance of the affidavit is concerned with the applicant's past efforts to obtain documents from the respondent.  It repeats a number of inaccurate assertions already discussed in these reasons, such as the assertion that the respondent's counsel gave an undertaking on 24 July 2002 that material would be made available.

7.  The dismissal decision - correctness

1. For the sake of completeness, although the issue was not directly raised by the applicant, it seems to us desirable briefly to canvass the reasons of the Full Court in the dismissal decision, in case there should be any other reason, not contained in the list of matters referred to by the applicant, which might suggest that that decision should be revisited.

2. The structure of the Court's decision was broadly as follows.

3. Between the beginning of the reasons of Malcolm CJ (with whom Steytler and Templeman JJ agreed) and [27], his Honour set out the history of the matter, in summary.  At [6], his Honour noted that the notice of appeal was filed in time, but was not served within time upon the respondent.  The respondent appears to have waived any objection to the late service, but by letters dated 9 February and 12 March 2001, put the applicant on notice that the respondent required him to comply with time limits in future.  He did not. 

4. The history of the proceedings from then demonstrates that there was a failure by the applicant to comply with a variety of time limits and extended time limits set for the settling of the appeal book index.  It reveals that he was prompted on many occasions by the respondent; that he failed on many occasions to serve the respondent; and that he failed on some occasions to attend hearings of which he had notice.  By July of 2002, almost a year and a half after the notice of appeal, the appeal books had not been finalised.  It appears that on some occasions the applicant advanced an explanation of one sort or another for his delays or oversights, but the delay was largely unexplained. 

5. At [29], the Chief Justice described the delay as "gross" and there can be no argument with that categorisation.  His Honour had earlier pointed out, at [12], the public interest in having the appeal disposed of in a timely manner, in circumstances where the report of the Tribunal to the Full Court was not able to be heard pending the outcome of the appeal.  At [29], his Honour quoted from Boomalli Ltd v Hake [1985] WAR 7 in relation to the discretion to extend time; in that case it was said that cogent reasons should be shown in order to extend time, and that the cogency of the reasons must surely be required to increase as the extension of time which is sought increases. At [31] his Honour concludes that, having regard to the chronology summarised, he saw no cogent reason for granting a further extension of time.

6. In any event, his Honour took the view that the appeal appeared to be without merit.  An examination of the way in which his Honour dealt with the grounds of appeal reveals that his Honour reached a conclusion as to the merits, not by an examination of the evidence, but by concluding that the "… statement of the appeal argument contains the grounds for its rejection" (Jackamarra v Krakouer (1998) 195 CLR 516 at 522 per Brennan CJ and McHugh J).

7. At [37] ‑ [57] inclusive, the Chief Justice set out and briefly dealt with each of the then current grounds of appeal.  When regard is had to our description of the references in these reasons, it can be seen that his Honour's conclusions are amply justified.  The only matter which calls for additional comment is ground 2, relating to the "undue pressure" upon the applicant to change his plea.  Although it was not particularised at the time, it can now be seen that that relates to the conversation which is alleged to have taken place in a lift, involving the Chairman of the Tribunal.  For the reasons which we have already given, it is our view that, even had the Full Court had that material before it, it should not have formed the view that that ground was of such merit that the appeal should be allowed to proceed, notwithstanding the applicant's gross delays.

8. There is a factual error, in [28]. His Honour there states that the respondent had given an undertaking to provide documents. However, that is a separate issue from the application to dismiss for want of prosecution, and does not affect the correctness of the decision on that application.

8.  Further grounds of appeal

1. Instead of filing, as the directions in this matter required him to do, an amended minute of notice of appeal, and an outline of submissions, the applicant filed a document dated September 2005 entitled, "The appellant's draft amended minute of notice of appeal … to be read together with the appellant's preliminary points in limine in respect to the appellant's non‑compliance with the orders handed down by the Honourable Justice Templeman and the Honourable Justice Wheeler and for an extension of time pursuant to Order 3(5)(1) of the Rules of the Honourable Court to file a final amended notice of appeal herein".  The document is a combination of grounds of appeal, submissions, and assertions of fact. 

2. It also appears to be some form of application for an extension of time.  After some initial material about the role of the lawyer, it commences with the applicant asserting that it is in the interests of justice that he have an extension of time to file a final amended notice of appeal.  As we understand it, what is sought is that the applicant at some time subsequent to the hearing of this matter be permitted to file yet another notice of appeal containing further material.  That would be an application, even if it were made in proper form, which we would dismiss, since it is now four and a half years since the appeal was instituted.  We are not persuaded that any quantity of resources, or any amount of time, would result in the applicant ever being better prepared than he presently is to address the merits of this application, or the dismissal of his appeal for want of prosecution, or the appeal itself. 

3. We therefore consider this document, so far as it contains matters of submission, for the purpose of ensuring that we have not overlooked any material which might be relevant to the applicant's application to recall the orders of the Full Court in the dismissal decision.  It seems to us that there are only two matters which require mention.

4. The first is that there is in this document, as in a number of the applicant's other affidavits and in his submissions before us, a reference to the inaccuracy of the transcript of the hearing of proceedings before the Tribunal, together with an indication that in the applicant's view, this Court should listen to the tapes of that proceeding.  So far as accuracy is concerned, it is clear on the face of the transcript that there are a number of points at which the typist may have misheard or mistyped what occurred.  The affidavit of A J Williams dated 20 December 2004 annexes an amended version of the transcript, corrected after the tapes had been listened to by the deponent and by the applicant.  We have read that corrected transcript.  No correction would appear to affect the conclusions of the Tribunal.  Further, none of the material which has been corrected suggests that the transcript was deliberately mistyped with a view to adversely affecting the applicant.

5. So far as listening to the tapes is concerned, we see no need to do so.  There are passages in the transcript which suggest that the Chairman and members became frustrated from time to time with the applicant's inability either to understand what it was that was being put against him, or to explain in a coherent way what it was that he wished to say, or what evidence he wished to adduce in his defence.  However, it is also plain on the face of the transcript that there were repeated efforts by the Chairman and members to explain what the various references were about, and repeated attempts to clarify with the applicant what it was that he wished to say in relation to the references.  Despite occasional exasperation, there was clearly a conscious and deliberate effort on the part of the Tribunal to afford the applicant a proper opportunity to put his case.

6. The other matter which requires particular attention is the question of legal professional privilege.  This was raised in the applicant's original grounds of appeal, in ground 3, obliquely, as part of a complaint that the respondent failed to attach "weight" to the contention that certain evidence was allegedly obtained in breach of legal professional privilege.  Since that time, it has become clear that what the applicant wishes to assert is that certain evidence before the Tribunal was inadmissible because it was obtained in breach of legal professional privilege.  The applicant does not seem to have produced a list of the allegedly inadmissible material.  However, so far as we can discern, it is suggested that the query in relation to the loan to Mrs Tailor, and the reference relating to Mr Aurthaveekul's payments, may have arisen after the Trust Account Inspector had considered client files of those two clients in order to see how those payments should be characterised and how the applicant had dealt with them.

7. The privilege objection was dealt with, and rejected, by the Tribunal.

8. The issue seems to us to be a very confined one, in the present case.  The first observation we would make is that it is not possible to determine whether legal professional privilege applies, in the absence of an identification of the precise  documents to which it is claimed to apply.  The privilege does not relate to every communication passing between a lawyer and a client.  It relates to communications made either to enable the client to obtain legal advice or to receive it, and to communications made with reference to litigation actually taking place or reasonably contemplated.  No doubt a very large number - probably the majority - of communications between a solicitor and client will have this character.  However, others will not.  In particular, it would seem to us that a majority of bills of costs and receipts are unlikely to have that character. 

9. It may be, although we do not know enough about Mr Novell's inspection to have any certainty in the matter, that Mr Novell did, during the course of his inspection, inspect material which would fall within the scope of the privilege.  However, that does not answer the question of whether there was particular material which was the subject of the privilege, which was adduced before the Tribunal without the consent of the relevant client.  Mr Novell's evidence suggests that the applicant's financial records were the source of the documents relied on for references 14A of 1999 (Tailor) and 12 of 2000 (Gilchrist); further, in relation to R12, Ms Gilchrist clearly, by her complaint, wished files relating to her to be investigated.  The source of the primary documents for R14B (Aurthaveekul) was said by Mr Novell to include "client files"; this seems to us to be the only reference potentially affected by privilege issues.

10. The question as to the applicability of legal professional privilege therefore appears to us to be a hypothetical one, for the purposes of this proceeding.  Even if the question were not hypothetical, however, we would incline to the view that the Tribunal was correct in its conclusion that legal professional privilege was abrogated by the Act, so far as the function of the Trust Account Inspector and the course of evidence before the Tribunal are concerned.

11. So far as the Trust Account Inspector is concerned, the statutory framework is as has been described in [5]. The whole point of those provisions is to provide a means by which the records of the practitioner "relating to trust moneys" can be inspected. It seems to us that in permitting the examiner to require production of records relating to trust moneys or trust accounts, and permitting the disclosure of that material to the Board or to an inquiry, the legislature must have, by necessary implication, abrogated legal professional privilege to the extent necessary to permit the consideration of all of the practitioner's records which answer the description of documents "relating to trust moneys".

12. That would not, in the usual case, enable the examiner to trawl through client records generally.  Since the facts upon which the applicant relies to establish the claim of privilege, and the documents in respect of which he makes the claim, are not identified, it is not necessary to consider in detail what would be documents "relating to trust moneys".  Trust account records, books of account, and bills of costs would clearly appear to answer the description, even where such documents may reveal to some extent the nature of work done or issues considered.  The question may be more difficult where there are few trust account records strictly so‑called, and where the manner in which a practitioner has dealt with trust moneys may be gleaned from documents, such as letters of advice, which contain privileged material.  The evidence concerning the state of the applicant's records suggests that, had allegedly privileged documents been properly identified, this is an issue which may have arisen, but we do not determine it on the present, speculative basis.

1. We note also that there is a further, and considerably broader, power which is able to be conferred on a nominated person by the Complaints Committee or Complaints Officers.  Section 31D(1)(c) of the Act provides:

   "31D.Powers to require production, and the examination, of records and to inspect practices

   (1)For the purposes of this Part, the Complaints Committee, or the Law Complaints Officer exercising the power of that committee, or the Disciplinary Tribunal or a member of that tribunal may -

   …

   (c)by notice require any practitioner or firm of practitioners to allow any member of the Disciplinary Tribunal or of the Complaints Committee, the Law Complaints Officer, or a person nominated in that notice -

   (i) to examine the conduct of any legal practice, or to inspect any record or other thing, specified, either particularly or by an appropriate general description, in that notice; and

   (ii)for that purpose, to enter any premises where there is reasonable cause to believe that the practice is conducted or the record or other thing may be kept … "

2. We note that in the reasons for decision of the Tribunal, there was reference to an invitation to the applicant, at the hearing, to read s 31D.  This tends to suggest that it may be that there was such a notice in the present case relevant to some of the applicant's records; however, because the question of privilege has never been raised in proper form, there is no evidence before us on this point.

3. Considering the question as best we can, then, in a factual vacuum, we would conclude that, to the extent that a document falls squarely within the description of a document or type of document which the Act requires to be produced, the privilege in respect of it is abrogated.

4. The applicant did not refer to any authority to the contrary, nor did he advance any argument based upon the construction of the Act, although he did refer to authorities dealing generally with legal professional privilege.  He referred to the decision of this Court in Carter v The Managing Partner, Northmore Hale Davy & Leake, unreported; FCt SCt of WA; Library No 930375; 15 July 1993.  That was a case in which documents were subpoenaed for the purposes of a criminal trial, and objections to their production on the basis of legal professional privilege was upheld.  Rowland J, at page 13 of his Honour's reasons, reached the conclusion that legal professional privilege is a settled rule of the common law, which can only be abrogated by explicit words doing so in a statute.  That is a proposition which is to the same effect as the decision of the High Court in Daniels Corporation v Australian Competition and Consumer Commission (2002) 213 CLR 543, another decision to which the applicant referred. At [11] Gleeson CJ, Gaudron, Gummow and Hayne JJ said:

   "Legal professional privilege is not merely a rule of substantive law.  It is an important common law right or, perhaps, more accurately, an important common law immunity.  It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect."

5. We of course accept the views there expressed.  For the reasons we have given, if it were necessary to do so, we would have held that the Act contained, in the provisions to which we have referred, a necessary implication that legal professional privilege was abrogated for the purposes of the examiner's inspection, and in proceedings before the Tribunal. 

6. That conclusion is consistent with the reasoning in Rogerson v Law Society of the Northern Territory (1993) 88 NTR 1, in which it was held that the Legal Practitioners Act 1974 (NT), by necessary intendment, abrogated legal professional privilege for the purpose of investigations carried out by the Law Society under Pt VI of that Act.  In that case, at page 9, Asche CJ made the point that it was vital that legal professional privilege could not be used to prevent those charged with ensuring that practitioners behaved properly from carrying out investigations to that end.  His Honour observed, "Otherwise the exercise of the privilege itself may bring into disrepute the very ends for which it was designed".  That seems to us, with respect, to be an important observation.  The purpose of the privilege is to ensure that members of the community are able to order their affairs in conformity with the law, and to secure the better administration of justice.  The privilege will only serve that end if legal practitioners, in whom the privilege encourages members of the community to confide, are persons of skill and good character.  It would undermine the purpose of the privilege if practitioners were able to shield themselves from investigation by the body charged with that responsibility, by invoking legal professional privilege. 

7. It is no answer to that point that the privilege is that of the client.  The present case affords an illustration of the proposition that a practitioner's clients may wish to protect him, even in circumstances where, objectively viewed, his conduct may have been improper and contrary to the clients' interests.

9.  Matters subsequent to hearing

1. Subsequent to the hearing on 21 and 22 September, the applicant submitted further correspondence to the Court.  There was an eight‑page letter, and a summons.  The letter deals, in the first six pages, with a statement made by Senior Counsel for the respondent at the hearing.  The applicant asserts that the statement was to the effect that the Chairman of the Tribunal did not agree with the evidence of the applicant, Mrs Tailor and Mrs Fussell.  The letter may be intended to bring to the Court's attention a matter omitted by oversight from the applicant's reply.  The only observation which it is necessary to make in relation to this issue is that the applicant has not accurately recalled the statement made by Mr Davies QC.  That was to the effect that he had had a conversation with the Chairman of the Tribunal about that matter, but that he did not seek to place any material before the Court.  We did not understand that statement as intending to give rise to any inference as to what, if anything, the Chairman may have been able to recall about the alleged conversation.

2. The applicant also asserts in the letter that he was very unhappy that he was provided with the tapes of the Tribunal hearing later than he would have wished.  It seems that he feels that he was deprived of the opportunity of playing them to us, as a result.  For the reasons which we have given, we see no need for the tapes to have been played in any event.

3. The applicant also requests that "[i]n the circumstances" the matter be reopened for further argument as to the consequences of Senior Counsel's statement, and to listen to portions of the tapes.  For the reasons which we have given, we consider that unnecessary. 

4. The applicant also seeks to be provided with transcripts of various hearings, without charge, including copies of transcripts which had previously been provided to him at no cost and which he has mislaid.  He gives no reason for requiring any of those transcripts.  We would not accede to that request. 

5. The applicant has also attempted to file in the Court of Appeal registry, a document bearing the matter number FUL 7 of 2001, but describing itself as a "contemnor summons".  It relates for the most part to the conduct of Senior Counsel for the respondent including, but by no means limited to, the making of the statement to which we have just referred.  It also seeks a declaration, the suspension of Mr Davies QC from practice, an injunction restraining Mr Davies QC from appearing in any matter involving the applicant, that leave be given to the applicant to bring a private prosecution against Mr Davies QC, leave to reopen the hearing of the application heard on 21 and 22 September in the light of Mr Davies' conduct and, as is usual, that the rules relating to service and time limits be abridged.  The summons does not comply with O 55.  It is not properly brought in FUL 7 of 2001.  It has nothing to do with this application.  The registry has quite properly refused to accept it for filing.  We therefore do not consider it.

10.  Summary

1. We have discussed the limited circumstances in which a perfected order of the Full Court may be vacated, and we do not repeat that discussion.  Assuming a power to reopen the dismissal decision, we would not do so.

2. That decision was not procured or affected by fraud.  There has been demonstrated no conspiracy against the applicant.  The applicant has not been prevented by any oversight or act of the respondent, of the Court, or of the Court's officers, from being fully and properly heard.  On the contrary, it is clear beyond doubt that the various difficulties which the applicant has laboured under throughout this matter have resulted from his inability to appreciate what the thrust of the various references against him was, or what the reasons of the Tribunal were, or what material might be relevant to an appeal, or how to make an application in proper form, together with his habit of filing prolix and repetitive materials.

3. None of the allegedly new or fresh material referred to by the applicant is capable of casting doubt upon the dismissal decision.  There is nothing otherwise to cause us to doubt its correctness, either in fact or in law.

4. We would dismiss this application.