LAW and LEGAL PROFESSION COMPLAINTS COMMITTEE

[2012] WASAT 36

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   VOCATIONAL REGULATION

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION:   LAW and LEGAL PROFESSION COMPLAINTS COMMITTEE [2012] WASAT 36

MEMBER:   JUSTICE J A CHANEY (PRESIDENT)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   24 FEBRUARY 2012

FILE NO/S:   VR 158 of 2011

BETWEEN:   MAURICE FREDERICK LAW

Applicant

AND

LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent

DAVID GERALD TAYLOR
Second Respondent

Catchwords:

Legal Practitioners - Discipline - Leave to review decision to dismiss complaint - Turns on own facts

Legislation:

Legal Profession Act 2008 (WA), s 435(2)

Result:

Leave refused

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

First Respondent           :     Law Complaints Officer

Second Respondent       :     Self-represented

Solicitors:

Applicant:     N/A

First Respondent           :     Law Complaints Officer

Second Respondent       :     N/A

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

Chin v Hall [2009] WASCA 216

Spunter Pty Ltd v Hall [2006] WASC 6

Spunter Pty Ltd v Hall [No 2] [2007] WASC 239

Wilson v Metaxas [1989] WAR 285

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The applicant, Mr Maurice Frederick Law, made a number of complaints to the Legal Profession Complaints Committee concerning a solicitor, Mr David Taylor. The Complaints Committee dismissed all of the complaints, and in doing so determined that three of them were unreasonable. By reason of that determination, leave to seek a review of the determination in relation to those three complaints was required by s 435(2) of the Legal Profession Act 2008 (WA). Mr Law sought a review of the decision in relation to all eight complaints. The Tribunal determined that the question of leave should be dealt with first.

2. The Tribunal reviewed the materials relating to the three complaints in respect of which leave was required.  It determined that the decision of the Complaints Committee in relation to those three complaints was not wrong or attended with sufficient doubt to justify the ground of leave and leave was refused.

Introduction

1. In August 2011, the Legal Profession Complaints Committee (Complaints Committee) dismissed eight complaints made by Mr Maurice Law (applicant) against his former solicitor, Mr David Taylor.  In respect of three of those complaints, the Complaints Committee determined that they were unreasonable.

2. Mr Law sought a review of the Complaints Committee's decision in relation to all matters. Section 435(2) of the Legal Profession Act 2008 (WA) requires that, where the Complaints Committee has found a complaint to be unreasonable, an application to the Tribunal for a review of that decision cannot be made without leave. The Tribunal directed that the question of leave in relation to the three complaints which were found to be unreasonable should be dealt with first, and on the basis of written submissions by the parties. These reasons concern the question of leave in respect of those three complaints.

3. The complaints emerge from a background of a labyrinth of litigation (Hall litigation) in which the applicant, and a company under his control, Spunter Pty Ltd (Spunter), was involved.  It is not necessary for present purposes to set out the history of that litigation, although it is helpfully summarised in a decision of Owen JA in Chin v Hall [2009] WASCA 216 at [3] - [29]. Mr Taylor acted for Mr Law and Spunter in some of that litigation. At some time, a solicitor, Mr Ni Kok Chin, acted on the other side in relation to some of that litigation in respect of which Mr Taylor represented Mr Law. At the initial directions hearing before this Tribunal on 13 September 2011, Mr Law advised the Tribunal that a substantial portion of his materials filed in support of the application had been prepared, on his behalf, by Mr Chin. The papers subsequently filed by Mr Law in relation to these proceedings make numerous critical references to professional disciplinary proceedings that have been brought against Mr Chin arising from the Hall litigation, and the matters of complaint which were found to be unreasonable reflect arguments put forward, unsuccessfully, by Mr Chin against Mr Law in the context of the Hall litigation.

Test for the grant of leave

1. In approaching the grant of leave under s 435(2) of the LP Act, the test is that described in Wilson v Metaxas [1989] WAR 285. The criteria for the grant of leave are that:

   1.It must be shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave; and

   2.In addition, it must be shown that substantial injustice would be done by leaving the decision unreversed.  What is substantial injustice must depend on all the circumstances of the case.

1. The complaints in respect of which leave is required are as follows:

   •Complaint 5 ­ that Mr Taylor advised Mr Law to complain to the Complaints Committee against Mr Chin without any adequate or proper basis for doing so;

   •Complaint 6 ­ that Mr Taylor misled Mr Law as to the date of filing of the writ of summons; and

   •Complaint 7 ­ that Mr Taylor swore an affidavit containing a false statement with regard to the filing of the writ of summons.

Complaint 5

1. In relation to this complaint, the Complaints Committee said:

   In respect of the complaint that the practitioner advised him to make a complaint against another practitioner without any adequate or proper basis for doing so, it was not clear what the complaint was about and the Committee noted that there was no evidence to support this matter of complaint beyond the complainant's bare allegation.  The only relevant complaint against the other practitioner was made by the practitioner.  Accordingly, the Committee was satisfied that there was no reasonable likelihood that the SAT would find the practitioner guilty of professional misconduct or unsatisfactory professional conduct in respect of this matter of complaint.

2. In his submissions on the question of leave in relation to complaint 5 Mr Law deals principally with matters related to the Magistrate Court's proceedings in which Mr Law sought recovery of the costs order against Mr Chin, and other matters arising from the Hall litigation.  In relation to the question of advice to complain to the Complaints Committee, Mr Law says:

   Mr Taylor harbours malicious intentions against Mr Chin as a result of the false costs order and wanted to get rid of Mr Chin as solicitor for Ms Nancy Hall by getting Mr Law to complain to the LPCC against Mr Chin.

3. No further information is provided by Mr Law as to the nature of the complaint which Mr Taylor allegedly advised him to make against Mr Chin.  It is thus not possible to ascertain whether or not Mr Taylor had any basis for suggesting that a complaint be made.

4. There is nothing in the materials which would enable the Tribunal to form a view that there is any likelihood of a finding of unsatisfactory professional conduct or professional misconduct on Mr Taylor's part by advising Mr Law to make a complaint against Mr Chin to the Complaints Committee.  Mr Law did not actually make any complaint.  Mr Taylor accepts, in his submissions, that he (Mr Taylor) did make a complaint to the Complaints Committee regarding Mr Chin arising from Mr Chin making improper statements on various occasions to the effect that Mr Taylor had been involved in a conspiracy with the Registrar of the Supreme Court or had misled the Registrar.  I accept that, whilst he has no particular recollection of his advice to Mr Law on this issue, it is likely that he did recommend that Mr Law make a complaint about Mr Chin.  What ultimately resulted from Mr Taylor's complaint is not evident from the materials filed in this matter.  The Complaints Committee was, however, in making the decision set out in its letter of 4 August 2011, obviously aware of that complaint which it refers to in the passage of its reasons set out above.  There is nothing to suggest that the Complaints Committee considered Mr Taylor's complaint to be without foundation.

5. Mr Law has not demonstrated that the Complaint Committee's decision in relation to complaint 5 was wrong, or was even doubtful.  Leave is refused in relation to this matter.

Complaints 6 and 7

1. These two complaints are related, and can be conveniently dealt with together.  They arise in the context of an order made by Jenkins J on 20 January 2006 in proceedings numbered CIV 1142 of 2005 and reported as Spunter Pty Ltd v Hall [2006] WASC 6. On Spunter's application, her Honour extended two caveats on properties owned by Ms Nancy Hall, who was represented by Mr Chin. The caveats were extended on condition that Spunter commence proceedings within 21 days to determine whether it had an equitable charge over the properties. That required an action to be commenced by Mr Law and his wife, Spunter by 10 February 2006.

2. An action, numbered CIV 1131 of 2006, was then commenced by the Laws and Spunter.  Mr Chin argued that the action had not been commenced within time.  In an affidavit sworn in the proceedings in which Jenkins J had made her order, Mr Taylor deposed as follows:

   15.As appears from the court record proceedings were filed on 10 February 2007.  On the basis of my inspection of the file I see that:

   13.1 [sic] My copy of the Writ of Summons in the Supreme Court Action is stamped 10 February 2006.

   13.2 [sic] The outside clerk filing instructions on the file are initialled by Simon Patrick O'Brien ('SPO') a practitioner admitted to this court, then in my employ.  Those instructions indicate that the Writ was filed on 10 February 2006.  Annexure hereto and marked 'DGT-12' and 'DGT-13' are true copies of the first page of the Writ and of the filing instructions.

   16.Filing fees, for the Writ in the Supreme Court Action, were paid to the Court on 10 February 2006.  Annexure hereto and marked 'DGT-14' is a true copy of the court receipt. 

3. Mr Law's complaint was that that affidavit was false, and that advice, provided to him by Mr Taylor, that the writ had been filed on 10 February 2006, was also false.

4. That is an argument that has been strenuously pursued in various proceedings by Mr Chin since at least June 2009.  That has largely been based upon some confusion in relation to the records of payment of the filing fee of $654.20.

5. The writ of summons bears a date stamp from the Supreme Court which records a receipt number.  The writ itself is stamped as having been filed on 10 February 2006.  The receipt attached to Mr Taylor's affidavit and marked DGT-14, is dated 10 February 2006.  The number of that receipt was initially shown as the relevant receipt on the stamp applied to the writ recording the payment of fees.  That stamp was also initially dated 10 February 2006.  It has subsequently been altered, however, to the date 16 February 2006 and the receipt number was deleted and replaced with a different receipt number.  That confusing annotation was the subject of an explanation in a letter from the Registrar of the Supreme Court dated 11 June 2009.  That explanation reads as follows:

   You state you have a copy of the writ.  In that case you will note it has two dates on it:

   The first is 10 February 2006 with a notation that the fee was $654.20.

   The second is the assessment which in its original form shows a date of 10 February 2006 and an assessment number of 201702.  That assessment was cancelled after close of business on 10 February 2006 when it was realised by the Court that the cheque tendered for payment was $654 and was therefore 20 cents short.

   I assume that fact was forwarded to the plaintiff's solicitors because on 16 February 2006 the correct amount was paid:  $654 by credit card and 20 cents cash.  The assessment stamp date was altered to 16 February 2006 and the new assessment number 202483 entered on the altered stamp.

   The assessment number is given on payment.

6. The question of the date of filing of the writ was the subject of dispute before Simmonds J in CIV 1142 of 2005, and led to a decision delivered on 19 October 2007 - see Spunter Pty Ltd v Hall [No 2] [2007] WASC 239. In that case, his Honour made a finding that the writ had been filed on 10 February 2006 - see [117]. Whilst some reliance was placed on Mr Taylor's evidence to that effect, his Honour's conclusion was not dependent upon that affidavit. In the Full Court's decision in Chin v Hall [2009] WASCA 216 at [17], Owen JA accepted that the writ had been filed on 10 February 2006 and concluded that 'The commencement of the action fulfilled the condition that Jenkins J had imposed on the extension of caveats in CIV 1142 of 2005'.

7. In his submissions in relation to complaint 6 and complaint 7, Mr Law asserts that, in swearing the affidavit as to the date of filing of the writ, Mr Taylor conspired with the Registrar to create a fiction concerning payment of the filing fee.  He accuses the Registrar of lying as to the circumstances surrounding the payment of the fee on filing of the writ.  Those allegations appear to be based on the unclear picture concerning payment of the fee created by limited financial records relevant to that question.  Whatever might be the position in relation to payment of the filing fee, there is no cogent evidence to refute the proposition that the writ of summons was presented to and accepted by the central office of the Supreme Court on 10 February 2006.  Allegations of conspiracy and lying are completely without foundation.  The Complaints Committee's conclusion that complaint 6 and complaint 7 were unreasonable was, in my view correct, as was its conclusion that there is no reasonable prospect that the practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct in relation to those complaints.

8. The application for leave in relation to complaint 6 and complaint 7 should be dismissed.

The other complaints

1. The first complaint made by Mr Law, which the Complaints Committee did not find to be unreasonable, was that Mr Taylor failed to file the writ of summons in CIV 1131 of 2006 by 10 February 2006 pursuant to the order of Jenkins J of 20 January 2006.  In his submissions in relation to the question of leave, Mr Taylor contended that complaint 1 must necessarily be dismissed if it is found that complaint 6 and complaint 7 are without merit.  There is obvious force in that contention.  However, because only the question of leave is to be determined as a first step, and submissions on the question of leave only have been made, it would not be appropriate to dismiss complaint 1 without hearing further from the parties.  The directions made have contemplated that the balance of the complaints will be dealt with separately, and the matter should be referred to a further directions hearing in order for that to occur.

Orders

1.The application for leave to seek a review of complaint 5, complaint 6 and complaint 7 contained in the Schedule of Complaints filed by the Legal Profession Complaints Committee on 7 October 2011 is refused.

2.The matter is adjourned for further directions at 10 am on 13 March 2012 in order to further programme the application for review of the remaining complaints.

I certify that this and the preceding [21] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUSTICE J A CHANEY, PRESIDENT