LAWSON and LEGAL PROFESSION COMPLAINTS COMMITTEE
[2019] WASAT 36
•4 JUNE 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: LAWSON and LEGAL PROFESSION COMPLAINTS COMMITTEE [2019] WASAT 36
MEMBER: JUDGE D PARRY, DEPUTY PRESIDENT
MS L EDDY, SENIOR MEMBER
MS M CONNOR, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 4 JUNE 2019
FILE NO/S: VR 114 of 2018
BETWEEN: BARRY LAWSON
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
WAQAS NASEEM
Second Respondent
Catchwords:
Legal practitioners - Complaints about conduct of legal practitioner acting for applicant's former employer and its insurer in relation to applicant's claim for compensation for workrelated injury - Summary dismissal of complaints by Legal Profession Complaints Committee - Application for leave to apply for review of decision of Legal Profession Complaints Committee to dismiss complaints - Certain complaints dismissed by Legal Profession Complaints Committee on the basis that they were made more than six years after the conduct complained of is alleged to have occurred and Legal Profession Complaints Committee did not determine (under s 411(2) of the Legal Profession Act 2008 (WA)) that 'it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay' or that 'the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint' - Whether Tribunal has jurisdiction or power to review a determination made under s 411(2) of the Legal Profession Act 2008 (WA) - Complaints dismissed by Legal Profession Complaints Committee on the basis that the complaints are vexatious, misconceived or lacking in substance, are unreasonable and require no further investigation - Whether decision to dismiss complaints was wrong or attended with sufficient doubt to justify the grant of leave - Whether complaints are vexatious, misconceived, frivolous or lacking in substance and require no further investigation - Words & phrases: 'frivolous', 'lacking in substance', 'misconceived', 'vexatious'
Legislation:
Freedom of Information Act 1992 (WA)
Legal Profession Act 2008 (WA), s 410, s 410(1)(e), s 411, s 411(2), s 411(3), s 415, s 415(1), s 415(1)(b), s 415(2)(a), s 415(3), s 435, s 435(1), s 435(2)
Seafarers Rehabilitation and Compensation Act 1992 (Cth)
State Administrative Tribunal Act 2004 (WA), s 13, s 13(1), s 13(2), s 17, s 18, s 24, s 29(1), s 32(1), s 47(1), s 47(1)(a), s 47(3)
Result:
Application for leave to seek review dismissed
Summary of Tribunal's decision:
Mr Barry Lawson sought leave for the Tribunal to review the decision of the Legal Profession Complaints Committee to summarily dismiss his complaints about a legal practitioner. The practitioner acted for Mr Lawson's former employer and for its insurer in relation to a long-running compensation claim following a work-related injury. Leave to seek review was required, because the Committee specifically found each complaint to be 'unreasonable'.
Some of the complaints were dismissed, in part, because they were made more than six years after the conduct complained of is alleged to have occurred and the Committee did not make a determination in relation to those complaints under s 411(2) of the Legal Profession Act 2008 (WA) that 'it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay' or that 'the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint'. The Tribunal determined that it does not have jurisdiction or power to make a determination in relation to a complaint under s 411(2) of the Legal Profession Act 2008 (WA). The Tribunal also determined that, as the relevant complaints were made more than six years after the conduct complained of is alleged to have occurred, and as a determination under s 411(2) of the Legal Profession Act 2008 (WA) has not been made by the Committee (being the only body having authority to do so) in relation to those complaints, the Committee's decision to dismiss those complaints was not wrong and was not attended with sufficient doubt to justify the grant of leave. Rather, it was the only decision that the Committee could lawfully come to in the circumstances.
The Tribunal found that each of Mr Lawson's complaints is vexatious, because it is made without sufficient grounds and serves only to cause annoyance, and is lacking in substance, because it involves an untenable proposition of fact and, in one case, of law. The Tribunal also found that two of the complaints are misconceived, because they involve a misunderstanding of legal principle.
The Tribunal determined that the decision of the Committee to summarily dismiss each of Mr Lawson's complaints about the practitioner was not wrong and was not attended with sufficient doubt to justify the grant of leave to seek review. Rather, it was the correct decision to summarily dismiss each complaint. The application for leave to seek review of the Committee's decision was dismissed.
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| First Respondent | : | Mr S Merrick |
| Second Respondent | : | Ms J Routley |
Solicitors:
| Applicant | : | N/A |
| First Respondent | : | Law Complaints Officer |
| Second Respondent | : | Cocks Macnish |
Case(s) referred to in decision(s):
Laurent and Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165
Lawson v Stateships [2008] AATA 643
Lawson v Stateships [2012] FCA 491
State Electricity Commission of Victoria v Rabel [1998] 1 VR 102
Stateships v Lawson [2009] FCA 59
Winzer and RobertsSmith [2011] WASAT 140
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mr Barry Lawson (applicant) seeks leave for the State Administrative Tribunal (Tribunal) to review the decision of the Legal Profession Complaints Committee (Committee) to summarily dismiss complaints which he made about the conduct of a legal practitioner, Mr Waqas Naseem (practitioner).
Background
On 27 July 1991, the applicant, whilst working as a cook on a ship, the MV Roberta Jull, in the course of his employment with the Western Australian Coastal Shipping Commission trading as Stateships (employer), slipped when he was carrying meat from the galley and badly twisted his right knee, causing the medial meniscus to tear. The applicant was medically assessed and declared unfit for sea duties. The applicant received worker's compensation until 24 September 1991, when he returned to work. However, the applicant's right knee continued to deteriorate and, on 9 June 1994, he was certified as unfit for further sea duties.
On 10 June 1994, the applicant commenced a claim in the Administrative Appeals Tribunal (AAT) for compensation against the employer under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (SRC Act) in respect of the injury. The employer accepted liability for compensation under the SRC Act. However, there were significant disputes between the applicant and the employer as to the nature and quantum of compensation payable in respect of the injury. These disputes resulted in multiple applications to the AAT[1] and two appeals from decisions of the AAT to the Federal Court of Australia.[2]
[1] The applicant estimates that he has applied to the AAT '40 times' (Legal Profession Complaints Committee s 24 bundle of documents page 125).
[2] See Stateships v Lawson [2009] FCA 59 (Gilmour J) and Lawson v Stateships [2012] FCA 491 (Gilmour J).
In Stateships v Lawson [2009] FCA 59 (Gilmour J), the Federal Court set aside the decision of the AAT in Lawson v Stateships [2008] AATA 643, in which the AAT found that the applicant suffered a psychiatric disorder involving depression arising out of, or contributed to in a material degree by, his employment with the employer, and that that was 'an injury' for the purposes of the SRC Act for which the employer was liable to pay compensation. The employer appealed to the Federal Court on a number of grounds, including as to 'whether there was any evidence before the [AAT] on which the [AAT] could find that the [applicant] contracted a psychiatric disorder … and that he continued to suffer from a psychiatric disorder'.[3] The Federal Court allowed the employer's appeal on the basis that the findings by the AAT, that the applicant contracted a psychiatric disorder involving depression and continued to suffer from that psychiatric disorder, 'was not founded on probative evidence' and '[i]ndeed it was contrary to the evidence which was probative'.[4] However, as the Court considered that there was probative evidence from a psychologist that the applicant suffered 'severe deterioration in his mental health as a result of stress',[5] which might potentially constitute a compensable 'injury' under the SRC Act, the matter was remitted to the AAT (differently constituted) for determination according to law. The applicant was ordered to pay the employer's costs of the appeal. After the matter was remitted to the AAT, the applicant was unsuccessful in contending that he suffered a mental 'injury' under the SRC Act for which the employer was responsible in terms of compensation in November 2009[6] and again in January 2012.[7] The applicant unsuccessfully appealed from the second of those decisions to the Federal Court. In Lawson v Stateships [2012] FCA 491 (Gilmour J), the Federal Court dismissed the applicant's appeal on the basis that his grounds were 'not capable of exposing any relevant error of law in respect to the reasons for judgment of the [AAT]'.[8] The applicant was ordered to pay the employer's costs of the appeal.
[3] Stateships v Lawson [2009] FCA 59 at [24(a)].
[4] Stateships v Lawson [2009] FCA 59 at [47].
[5] Stateships v Lawson [2009] FCA 59 at [54].
[6] See Lawson v Stateships [2009] AATA 871.
[7] See Lawson v Stateships [2012] AATA 32.
[8] Lawson v Stateships [2012] FCA 491 at [3].
Despite the applicant's lack of success in relation to part of his claim for compensation, in a letter to the applicant dated 4 March 2015, Mr Graeme Doyle, Commissioner of the Western Australian Coastal Shipping Commission, said that the applicant had 'been paid benefits estimated to be in excess of $1 million' under the SRC Act in consequence of the injury that he sustained on 27 July 1991.[9] The letter also states that the applicant's 'incapacity and impairment claims have been exhausted under the [SRC] Act', but it remains open to him 'to submit claims for consideration for medical expenses and household and attendant care services'.[10]
[9] Legal Profession Complaints Committee s 24 bundle of documents page 248.
[10] Legal Profession Complaints Committee s 24 bundle of documents page 248.
The employer was represented by the law firm Cocks Macnish (firm) and, in particular, by the practitioner, in relation to the applicant's compensation claim, including the multiple AAT and Federal Court proceedings. The practitioner was employed by the firm as an associate and ultimately became a partner of the firm. The firm and the practitioner also acted for the employer's indemnity insurer, the London SteamShip Owners' Mutual Insurance Association Ltd trading as The London P&I Club (insurer), in relation to the applicant's compensation claim.[11]
[11] In its reasons for the decision the subject of this proceeding, the Legal Profession Complaints Committee states at [1] that '[a]t all relevant times the practitioner, in his employment at Cocks Macnish … acted for the Insurer and received instructions on the day to [day] conduct of claims through Stateships and the Western Australia[n] Department of Transport'. However, the evidence before the Tribunal indicates that the practitioner was acting for both the insurer and the employer in relation to the compensation claim. The firm was identified as the solicitor for the employer in the AAT and Federal Court proceedings relating to the claim for compensation. In the Bill of Costs for Taxation in Federal Court proceeding WAD 175 of 2008 (which followed the decision in Stateships v Lawson [2009] FCA 59), the firm referred to the insurer as 'P&I Club Client' and to the employer as 'Member Client' (Legal Profession Complaints Committee s 24 bundle of documents page 229). The evidence before the Tribunal confirms the correctness of the Legal Profession Complaints Committee's statement that the practitioner 'received instructions on the day to [day] conduct of claims through Stateships and the Western Australia[n] Department of Transport'. This was because, as the insurer said to the applicant in what appears to be an email in late 2014, '[w]e have not, and can not [sic] be expected to control the conduct of our Members' cases, that responsibility rests with our Members' (Legal Profession Complaints Committee s 24 bundle of documents page 245 and applicant's bundle of documents page 92). However, it is clear on the evidence before the Tribunal that the practitioner sought direct instructions from the insurer in relation to certain matters concerning the applicant's claim for compensation, such as whether to appeal from the decision of the AAT to the Federal Court (Legal Profession Complaints Committee s 24 bundle of documents page 229). We also note that the evidence before the Tribunal does not establish whether the practitioner was employed by the firm and had carriage of the compensation claim matter as early as February and March 1996 (which is the earliest period the subject of complaint 2.2 made by the applicant in relation to the practitioner's conduct). The earliest reference to the practitioner's name or initials in the documentary evidence bearing the firm's details is in about 2003. However, as the practitioner has not challenged the statement that he was acting '[a]t all relevant times' and as nothing in the result turns on it, we proceed in these reasons on the basis that the practitioner was employed by the firm and had carriage of the matter at the earliest date referred to in the applicant's complaints.
In a large number of letters by facsimile transmission and emails, dated between 24 October 2012 and 24 May 2018, the applicant made complaints to the Committee about the conduct of the practitioner, during the period 1996 to 2017 in connection with the claim for compensation, including the various AAT and Federal Court proceedings, under s 410 of the Legal Profession Act 2008 (WA) (LP Act). The complaints, as helpfully distilled by the Committee from the applicant's considerable correspondence, are set out at [10] below. Other than in two minor respects, the applicant does not contest the correctness of the Committee's statement of his complaints.
On 1 June 2018, the Committee advised the applicant that it had summarily dismissed the complaints at a recent meeting. In relation to two of the complaints (one of which includes three subcomplaints), the Committee did so under s 415(2)(a) of the LP Act, because they were made more than six years after the conduct complained of is alleged to have occurred and the Committee did not make a determination in relation to those complaints under s 411(2) of the LP Act, and also because, under s 415(1)(b) of the LP Act, the Committee determined that the complaints are lacking in substance, and, under s 415(3) of the LP Act, the Committee considered that the complaints require no further investigation. The Committee dismissed the other complaints, because, under s 415(1)(b) of the LP Act, it determined that the complaints are vexatious and lacking in substance, and, under s 415(3) of the LP Act, it formed the view that the complaints require no further investigation. In its reasons for its decision, the Committee also specifically found each of the complaints to be 'unreasonable'. The consequence of the Committee's finding of the complaints to be unreasonable is that, under s 435(2) of the LP Act, the applicant cannot apply to the Tribunal for a review of the Committee's decision to dismiss the complaints without the leave of the Tribunal.
On 27 June 2018, the applicant applied to the Tribunal for leave to seek review of the Committee's decision to dismiss his complaints about the practitioner, under s 435(2) of the LP Act. On 6 December 2018, the Tribunal directed that, subject to any further order, the application for leave to seek review of the Committee's decision is to be determined entirely on the documents under s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The documents on which the matter is to be determined are the application filed on 27 June 2018, including the applicant's 'reasons for the appeal' (four pages) and 'My Reply to [Decision] of the LPCC' (38 pages) (applicant's reply), the Committee's bundle of documents filed on 10 August 2018 under s 24 of the SAT Act, the applicant's bundle of documents filed on 3 January 2019, and the parties' written submissions, filed by the applicant on 10 September 2018 and by the Committee on 25 September 2018. The practitioner did not file any submissions and agrees with the Committee's submissions.
Complaints
In his correspondence to the Committee between 24 October 2012 and 24 May 2018, the applicant made essentially 10 complaints of unsatisfactory professional conduct or professional misconduct against the practitioner. As indicated earlier, the Committee has helpfully distilled these 10 complaints from the applicant's correspondence. As also indicated earlier, the applicant does not contest the correctness of the Committee's statement of his complaints (other than in minor respects in relation to complaints 3.5 and 3.6, which are discussed below). Indeed, in his reply to the Committee's decision, the applicant sets out the Committee's statement of each of his complaints and then presents his position in relation to it. The applicant also adopts the complaint numbering set out by the Committee in its reasons for its decision in the index to his bundle of documents. We accept the joint position of the parties that the applicant's complaints about the practitioner's conduct are accurately distilled and set out by the Committee in its reasons. The applicant's complaints, as stated by the Committee in its reasons, are as follows:[12]
[12] Legal Profession Complaints Committee s 24 bundle of documents pages 1 - 2 (original emphasis).
… Mr Waqas Naseem engaged in unsatisfactory professional conduct or professional misconduct in acting for Stateships during the period 1996 to 2017 in and in connection with a claim for compensation made by [the applicant] under the Seafarers Rehabilitation and Compensation Act 1992, (Cth) (SRCA) and its related proceedings in that the practitioner:
1.Refused, or caused his client to refuse, requests by [the applicant] concerning [his] rehabilitation including:
1.1.In 2003 for postoperative home help as recommended by [his] treating hospital;
1.2.In 2006 for a rehabilitation assessment by rehabilitation provider CRS Australia and instead nominated Mt Injury Management, a non-approved provider to provide the assessment; and
1.3.For the repair of safety hazards identified in an annual future Independent Living Assessment (complaint 1).
2.When dealing with [the applicant's] legal representatives in relation to the ongoing compensation claims against Stateships, refused to engage with these representatives including:
2.1.With Mr Guy Stubbs (as evidenced by a letter dated 20 December 2006 from Stateships to Mr Stubbs, a letter dated 16 February 2007 from Mr Stubbs to the practitioner and a letter dated 29 March 2007 from the practitioner to [the applicant]) (complaint 2.1); and
2.2.With Ms Anne-Marie Adam and Mr Gregory Kuscevich (as evidenced by an exchange of correspondence in February and March 1996 between Ms Adam, the practitioner and [the applicant] and correspondence between Kusevich & Associates, [the applicant] and the practitioner in September 2003, March 2004, September 2004, October 2004 and November 2004) (complaint 2.2).
3.In conducting the matter on behalf of his client:
3.1.refused to obtain a copy of a doctor's report which [the applicant] had authorised him to obtain and then subsequently appealed a decision of the Administrative Appeals Tribunal ([2008] AATA 643) on the basis that this report had not been submitted to the AAT (complaint 3.1);
3.2.submitted a claim for costs in relation to Federal Court Appeal WAD 175 of 2008 which was false and/or included excessive charges (complaint 3.2);
3.3.lied about the identity of his client and fabricated an inability to obtain instructions from his client (complaint 3.3);
3.4.stated in a letter dated 13 May 2015 that the information [the applicant] sought from Stateships was not retained by his client (noting that [the applicant's] compensation claim had spanned in excess of 20 years) in circumstances where [the applicant was] later advised by the State Records Office that the documents were and should be available (complaint 3.4);
3.5when appearing at a conciliation conference in the AAT in 2014, agreed to reimburse [the applicant] for postage of $8.90 being the cost of having Stateships' bundle of Tdocuments released from the Post Office but then failed to do so (complaint 3.5);
3.6.'instructed Stateships to close' [the applicant's] Freedom of Information application filed on 5 October 2014 in which [the applicant] requested information as to the name of the insurer involved in [the applicant's] compensation claim while an internal review of the FOI decision was still being undertaken and in an attempt to corrupt the FOI process (complaint 3.6); and
3.7.intervened in October 2016 to stop the renovation work to [the applicant's] bathroom which was work that Stateships had agreed to complete and was work that was recommended in an Independent Living Assessment (complaint 3.7).
Committee's decision
The Committee's decision in relation to the applicant's complaints, as stated in the Committee's reasons, is as follows:[13]
[13] Legal Profession Complaints Committee s 24 bundle of documents pages 2 - 3.
After a careful consideration of the matter the Committee resolved:
In respect of complaints 1 and 2.2:
a)not to make a determination under section 411(2) of the Legal Profession Act 2008 (the Act) to deal with the complaint;
b)to dismiss the complaint pursuant to section 415(2)(a) of the Act because it was made more than six years after the conduct complained of is alleged to have occurred; and
c)that in any event, the complaints relating to the practitioner's conduct were lacking in substance in accordance with section 415(l)(b) of the Act, were unreasonable and required no further investigation and should be dismissed.
The Committee also resolved in respect of complaints 2.1 and 3.1-3.7 (inclusive) that the complaints were vexatious, misconceived and/or lacking in substance pursuant to section 415(l)(b) of the Act, were unreasonable and required no further investigation and should be dismissed.
Legal framework
Section 410(1)(e) of the LP Act enables a complaint about an Australian legal practitioner to be made by 'any … person who has or had a direct personal interest in the matters alleged in the complaint'. There is no doubt that the applicant has or had a direct personal interest in the matters alleged in his complaints about the practitioner.
Section 411 of the LP Act concerns the time within which a complaint may be made. Section 411 of the LP Act states as follows:
(1)A complaint may be made about conduct of an Australian legal practitioner irrespective of when the conduct is alleged to have occurred.
(2)However, a complaint cannot be dealt with (otherwise than to dismiss it or refer it to mediation) if the complaint is made more than 6 years after the conduct is alleged to have occurred unless the Complaints Committee determines that
(a)it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay; or
(b)the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint.
(3)A determination under subsection (2) is final and cannot be challenged in any proceedings by the complainant or the Australian legal practitioner concerned.
Section 415 of the LP Act enables the Committee to summarily dismiss a complaint in terms which include the following:
(1)The Complaints Committee may dismiss a complaint if
…
(b)the complaint is vexatious, misconceived, frivolous or lacking in substance; …
(2)The Complaints Committee must dismiss a complaint if
(a)the complaint was made more than 6 years after the conduct complained of is alleged to have occurred, unless a determination is made under section 411 in relation to the complaint; …
(3)The Complaints Committee may dismiss a complaint under this section without completing an investigation if, having considered the complaint, the Complaints Committee forms the view that the complaint requires no further investigation.
Thus, summary dismissal is available to the Committee under s 415(1)(b) of the LP Act in circumstances where the complaint is 'vexatious', 'misconceived', 'frivolous' or 'lacking in substance'. As indicated earlier, the Committee dismissed complaints 1 and 2.2 (in part) on the basis that they are 'lacking in substance' and dismissed the other complaints on the basis that they are 'vexatious, misconceived and/or lacking in substance'.[14]
[14] Legal Profession Complaints Committee s 24 bundle of documents page 3.
The terms 'vexatious', 'misconceived', 'frivolous' and 'lacking in substance' are not defined in the LP Act. The meaning of the term 'vexatious' in relation to legal actions and, by analogy, in relation to a complaint about a legal practitioner, is:[15]
… instituted [or made] without sufficient grounds, and serving only to cause annoyance.
[15] The Macquarie Dictionary (6th ed, 2013) page 1637.
In Laurent and Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165, Deputy President Judge Pritchard (as her Honour then was) considered the meaning of the terms 'misconceived' and 'lacking in substance' in s 47(1)(a) of the SAT Act. Section 47(1) of the SAT Act confers power on the Tribunal[16] to summarily dismiss SAT proceedings, which is similar to the power conferred on the Committee by s 415(1)(b) of the LP Act to summarily dismiss a complaint about a legal practitioner. In Laurent and Commissioner of Police, the Tribunal held as follows at [23]:[17]
… I note that the term 'misconceived' connotes a misunderstanding of legal principle while the term 'lacking in substance' connotes an untenable proposition of law or fact[.]
[16] When constituted by a legally qualified member: s 47(3) of the SAT Act.
[17] Citing State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108 - 109 (Ormiston JA).
The term 'frivolous' relevantly means:[18]
… of little or no weight, worth, or importance; not worthy of serious notice.
[18] The Macquarie Dictionary (6th ed, 2013) page 594.
Section 435 of the LP Act confers a right of review by the Tribunal on a person aggrieved by a decision of the Committee to dismiss a complaint in the following terms:
(1)Subject to subsection (2), a person aggrieved by
(a)a decision of the Complaints Committee to dismiss a complaint; or
(b)a decision made by the Complaints Committee under section 426,
may apply to the State Administrative Tribunal for a review of the decision.
(2)If the Complaints Committee, in its reasons for its decision, specifically finds the complaint
(a)to be trivial, unreasonable, vexatious or frivolous; or
(b)in the case of a complaint purporting to be made under section 410(1)(e), to be a matter in which the complainant does not have, or did not have, a direct personal interest,
the person aggrieved cannot apply to the State Administrative Tribunal for a review of the decision without the leave of the Tribunal.
As indicated earlier, in its reasons for its decision to dismiss the applicant's complaints about the practitioner, the Committee specifically found each complaint to be 'unreasonable'. Consequently, under s 435(2) of the LP Act, the applicant cannot apply to the Tribunal for a review of the Committee's decision without the leave of the Tribunal.
As President Justice Chaney said in Winzer and RobertsSmith [2011] WASAT 140 at [8]:
The question of leave pursuant to s 435(2) of the LP Act is to be determined according to the principles outlined in Wilson v Metaxis (1989) WAR 285. In that case, the full Supreme Court found that for leave to be granted:
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.
2.In addition that substantial injustice would be done by leaving the decision unreversed. What is substantial injustice must depend on all of the circumstances of the case.
Complaints 1 and 2.2 Refusal of applicant's requests concerning rehabilitation and refusal to engage with Ms Adam and Mr Kuscevich
As indicated earlier, complaints 1 and 2.2 are as follows:
1.[The practitioner] [r]efused, or caused his client to refuse, requests by [the applicant] concerning [his] rehabilitation including:
1.1.In 2003 for postoperative home help as recommended by [his] treating hospital;
1.2.In 2006 for a rehabilitation assessment by rehabilitation provider CRS Australia and instead nominated Mt Injury Management, a non-approved provider to provide the assessment; and
1.3.For the repair of safety hazards identified in an annual future Independent Living Assessment (complaint 1).
2.When dealing with [the applicant's] legal representatives in relation to the ongoing compensation claims against Stateships, [the practitioner] refused to engage with these representatives including:
…
2.2.With Ms Anne-Marie Adam and Mr Gregory Kuscevich (as evidenced by an exchange of correspondence in February and March 1996 between Ms Adam, the practitioner and [the applicant] and correspondence between Kusevich & Associates, [the applicant] and the practitioner in September 2003, March 2004, September 2004, October 2004 and November 2004) (complaint 2.2).
As indicated earlier, complaints 1 and 2.2 were dismissed for two reasons. First, pursuant to s 415(2)(a) of the LP Act, because they were made more than six years after the conduct complained of is alleged to have occurred and the Committee decided not to make a determination under s 411(2) of the LP Act to deal with the complaint. Secondly, these complaints were dismissed 'in any event',[19] under s 415(1)(b) of the LP Act, because they are lacking in substance and, under s 415(3) of the LP Act, because the Committee formed the view that the complaints require no further investigation.
[19] Legal Profession Complaints Committee s 24 bundle of documents page 3.
Section 415(2) of the LP Act provides, in mandatory terms, that if a complaint was made more than six years after the conduct complained of is alleged to have occurred, the Committee 'must dismiss [the] complaint', 'unless a determination is made under section 411 in relation to the complaint'. A 'determination … under section 411 in relation to the complaint' is a determination under s 411(2) of the LP Act that:
…
(a)it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay; or
(b)the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint.
At [17] of its reasons, the Committee noted that the applicant's reason for the delay in making these complaints was that 'he was unaware of the practitioner's "deceit and deception" until he received details of the identity of Stateships' insurer in 2014'.[20] The Committee considered that the applicant's explanation 'did not justify the Committee dealing with complaints 1 and 2.2 after such a significant delay'.[21] The Committee also determined that, even if it were assumed that the complaints involve allegations of professional misconduct, it would not be in the public interest to deal with the complaints 'in light of the lack of material to support the complainant's allegations'.[22] The Committee, therefore, declined to make a determination to deal with complaints 1 and 2.2 under s 411(2) of the LP Act.
[20] Legal Profession Complaints Committee s 24 bundle of documents page 7 (original emphasis).
[21] Legal Profession Complaints Committee s 24 bundle of documents page 7.
[22] Legal Profession Complaints Committee s 24 bundle of documents page 7.
The parties appear to have proceeded on the basis that it is open to the Tribunal, in a review application under s 435(1) of the LP Act, to make a determination under s 411(2) of the LP Act. However, this is incorrect. For the reasons which follow, the Tribunal does not have jurisdiction or power to make a determination under s 411(2) of the LP Act to deal with a complaint that was made more than six years after the conduct complained of is alleged to have occurred.
Section 13 of the SAT Act states that the Tribunal has jurisdiction to deal with a matter where '[a] provision of an enabling Act … enables an application to be made to the Tribunal'[23] or where the SAT Act itself confers jurisdiction in relation to the matter. However, there is no provision of the LP Act, any other enabling Act or the SAT Act that confers jurisdiction on the Tribunal to make or review a decision under s 411(2) of the LP Act. The Tribunal, therefore, has no jurisdiction to make or review a decision under s 411(2) of the LP Act.
[23] Section 13(1) of the SAT Act.
Furthermore, in consequence of the terms of s 411(3) of the LP Act, the Tribunal's general power under s 29(1) of the SAT Act in review proceedings, to exercise the original decision-maker's functions and discretions in making the reviewable decision, is not available in relation to s 411(2) of the LP Act.
Section 17(1) of the SAT Act states as follows in relation to matters which come within the Tribunal's review jurisdiction:
If the matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction.
An application under s 435(1) of the LP Act to review a decision of the Committee to dismiss a complaint about a practitioner expressly involves a review of a decision and therefore comes within the Tribunal's review jurisdiction under s 17(1) of the SAT Act.
Section 29(1) of the SAT Act states as follows in relation to the Tribunal's powers concerning matters which come within in its review jurisdiction:
The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision.
The Committee's determination under s 411(2) of the LP Act involved the exercise of a function and discretion 'exercisable by the decision-maker in making the reviewable decision' (within the meaning of s 29(1) of the SAT Act). The relevant 'reviewable decision' is the Committee's decision to summarily dismiss complaints 1 and 2.2 under s 415(2)(a) of the LP Act. However, s 18(2) of the SAT Act provides that an enabling Act (such as the LP Act) may modify the operation of the SAT Act in relation to review proceedings. Section 18 of the SAT Act states as follows:
(1)In exercising its review jurisdiction the Tribunal is to deal with a matter in accordance with this Act and the enabling Act.
(2)The enabling Act may modify the operation of this Act in relation to a matter that comes within the Tribunal's review jurisdiction.
As indicated earlier, s 411(3) of the LP Act states as follows:
A determination under subsection (2) is final and cannot be challenged in any proceedings by the complainant or the Australian legal practitioner concerned.
An application for review by the Tribunal under s 435(1) of the LP Act is 'proceedings' within the meaning of s 411(3) of the LP Act. As s 411(3) of the LP Act provides that a determination by the Committee under s 411(2) 'is final and cannot be challenged in any proceedings by the complainant or the … practitioner concerned', the effect of this provision is to modify, pursuant to s 18(2) of the SAT Act, the operation of s 29(1) of the SAT Act in relation to review proceedings under s 435(1) of the LP Act, by precluding the Tribunal from exercising the Committee's function and discretion under s 411(2) of the LP Act. The Tribunal therefore does not have power under s 29(1) of the SAT Act (or otherwise) to make a determination under s 411(2) of the LP Act to deal with a complaint that was made more than six years after the conduct complained of is alleged to have occurred. The only body which has power to make a determination under s 411(2) of the LP Act is the Committee.
It follows that the application for leave to seek review of the decision of the Committee to dismiss complaints 1 and 2.2 must be dismissed, because these complaints were made more than six years after the conduct complained of is alleged to have occurred and consequently, under s 415(2)(a) of the LP Act, the Committee (and the Tribunal on review) 'must dismiss [the] complaint[s]', unless a determination to deal with those complaints is made under s 411(2) of the LP Act, which the Committee (being the only body having authority to do so) has decided against. Given the mandatory expression of s 415(2) of the LP Act ('… must dismiss [the] complaint …') and the decision of the Committee under s 411(2) of the LP Act not to deal with complaints 1 and 2.2, the Committee's decision to dismiss those complaints under s 415(2)(a) of the LP Act was not wrong and was not attended with sufficient doubt to justify the grant of leave. Rather, it was the only decision that the Committee could lawfully come to in the circumstances.
We also note that in the applicant's reply, the applicant says that 'I first contacted the [Committee] with my concerns in June 1999'.[24] However, other than this bald assertion, there is no evidence that complaints 1 and 2.2 were made within six years after the conduct complained of is alleged to have occurred. As indicated earlier, the complaints were made in a large number of letters by facsimile transmission and emails between 24 October 2012 and 24 May 2018.
[24] My Reply to [Decision] of the LPCC page 19.
Furthermore, and in any case, if the Tribunal had jurisdiction or power to make a determination under s 411(2) of the LP Act to deal with a complaint that was made more than six years after the conduct complained of is alleged to have occurred, the decision of the Committee not to make a determination to deal with complaints 1 and 2.2 under that provision was the correct decision in this case.
In his reply, the applicant states:[25]
I believe the 6year consideration should take into consideration the time it took for me to find out the name of the Insurer, my lack of knowledge of a Lawyer's responsibilities to his profession and the fact that my complaints remained dormant at the LPCC for 6years.
[25] My Reply to [Decision] of the LPCC page 19.
However, as the Committee said in its reasons, the time it took the applicant to find out the name of the insurer[26] does not make it 'just and fair to deal with the complaint[s]', given that the applicant was able to make complaints raising a number of different concerns about the conduct of the practitioner prior to that time and that the identity of the insurer is not relevant to complaints 1 and 2.2. The applicant's lack of knowledge of a practitioner's responsibilities also does not make it 'just and fair to deal with' complaints 1 and 2.2, given the significant delay in this case (relating to conduct alleged to have occurred in 1996, 2003, 2004 and 2006) and the plain intent of s 411(2), s 411(3) and s 415(2)(a) of the LP Act to ensure that there is generally finality to the potential for a complaint to be made about a practitioner. The applicant's statement that his complaints 'remained dormant at the LPCC for 6years' is factually incorrect. Both the legal officer of the Rapid Resolution Team and the senior legal officer of the Committee responded to the applicant's large number of facsimile transmissions and emails. It is correct that the complaints were not put before the Committee for a determination prior to mid2018. However, that was reasonable on the part of the Committee and its officers, given the sporadic and repetitive nature of the applicant's considerable correspondence to the Committee, the officers' careful and repeated explanations to the applicant that legal practitioners act on instructions of clients, rather than as principals, and the Committee's ultimate decision – with which we agree in these reasons – that the applicant's complaints should be summarily dismissed.
[26] Which occurred in November 2014 see consideration of complaint 3.6 below.
Furthermore, if the Tribunal had jurisdiction or power to make a determination under s 411(2) of the LP Act, we consider that the Committee's determination that, if complaints 1 and 2.2 involve allegations of professional misconduct, then it is not in the public interest to deal with those complaints, is correct, given our determination below that these complaints are lacking in substance.
In relation to the Committee's alternative basis for dismissing complaints 1 and 2.2, namely that the complaints are lacking in substance and require no further investigation, we find that the decision was not wrong or attended with sufficient doubt to justify the grant of leave, and, indeed, was correct. In relation to complaint 1.1 (that the practitioner refused, or caused his client to refuse, a request in 2003 for postoperative home help as recommended by the applicant's treating hospital), the evidence indicates that the practitioner did not refuse, but rather facilitated, the provision of the home help, which was, in fact, provided to the applicant. The home help in question involved two hours per week for five weeks, recommended by a social worker upon the applicant's discharge from St John of God Hospital following knee surgery on 25 June 2003.[27] On 26 June 2003, the practitioner wrote to St John of God Hospital referring to a telephone conversation the day before and indicating that 'we are currently taking our client's instructions in respect of the provision of home help' and that '[w]e shall revert to Mr Lawson as soon as possible'.[28] On 8 July 2003, the practitioner wrote to the applicant stating that:[29]
We are obtaining comfirmatory instructions from our client in respect of your request for home help and the additional home help you have requested recently.
[27] Legal Profession Complaints Committee s 24 bundle of documents page 188.
[28] Legal Profession Complaints Committee s 24 bundle of documents page 189.
[29] Legal Profession Complaints Committee s 24 bundle of documents page 193.
On 25 July 2003, the employer wrote to the applicant as follows:[30]
In respect of the additional 2 hours per week of home help for 5 weeks that you have requested subsequent to your knee surgery, we confirm that we shall engage Tilleys for the provision of that additional home help which will have to be 3 hours per week (as Tilleys minimum booking per service is 3 hours) at our cost totalling approximately $445.50. Please do not hesitate to liase [sic] with us direct so that the necessary arrangements can be made.
[30] Legal Profession Complaints Committee s 24 bundle of documents page 196.
Thus, the documentary evidence clearly shows that the practitioner promptly sought instructions for the provision of the postoperative home help and that it was provided to the applicant.[31] Complaint 1.1 is therefore lacking in substance, because it involves an untenable proposition of fact.
[31] In fact three hours, rather than two hours, per week home help was provided to the applicant, because the minimum booking per service by the contractor was three hours.
In relation to complaint 1.2 (that the practitioner refused, or caused his client to refuse, requests by the applicant in 2006 for a rehabilitation assessment by rehabilitation provider CRS Australia and instead nominated Mt Injury Management, a nonapproved provider to provide the assessment), the evidence indicates that, although, in a facsimile transmission to the firm on 2 May 2006, the applicant indicated a 'preference' for a rehabilitation programme to be undertaken by CRS Fremantle 'as I believe they have a greater knowledge of employment opportunities in the Fremantle area',[32] the applicant at the time appears to have accepted the assessment being done by Mt Injury Management. In a responsive facsimile transmission on 3 May 2006, the practitioner explained that 'Elaine Duncan of Mount Injury Management has specialist skill and experience in the vocational rehabilitation of seafarers' and has 'an extensive list of employer contacts in the metropolitan region, including the Fremantle area'.[33] The practitioner also said that the firm had already forwarded all relevant medical documentation to Mt Injury Management and that they 'are ready to meet and assist you at your upcoming appointment'.[34] Although the practitioner also said that '[w]e do not propose changing our arrangements', he concluded the correspondence by saying that '[w]e await to hear from you'. Although the applicant said in a facsimile transmission on 5 May 2006 that it 'is still my preference to have any rehabilitation programme done at CRS Australia Fremantle', he also said that 'I wish to inform you that I will be attending Mount Injury Management on Tuesday 9th May' and requested the employer to assist by paying for his taxi fares from his home when attending appointments at Mt Injury Management.[35]
[32] Applicant's bundle of documents page 35.
[33] Applicant's bundle of documents page 36.
[34] Applicant's bundle of documents page 36.
[35] Applicant's bundle of documents page 38. The employer agreed to reimburse the applicant for the cost of taxi travel between his home and Mt Injury Management for assessments (Legal Profession Complaints Committee s 24 bundle of documents page 198).
Thus, complaint 1.2 is lacking in substance, because it involves an untenable proposition of fact. Although the applicant expressed a 'preference' for another rehabilitation assessment provider, he agreed to attend the nominated provider. Furthermore, the nomination of Mt Injury Management was reasonable, for the reasons stated by the practitioner in his correspondence with the applicant.
Finally, in relation to this aspect, we note that when, on 12 October 2006, the applicant advised the employer that Ms Duncan had left Mt Injury Management and that the reason 'your solicitor stated' that he was to attend Mt Injury Management was because of 'the specialist skill and experience of Elaine Duncan in the vocational rehabilitation of seafarers',[36] the practitioner wrote to the applicant on 27 October 2006 as follows:[37]
As requested, we have made arrangements for the transfer of your vocational rehabilitation from Mount Injury Management to a Seafarers Approved Rehabilitation Provider, namely CRS Australia Fremantle.
Please advise as to your availability to attend a work trial host canvassing session.
[36] Applicant's bundle of documents page 47.
[37] Applicant's bundle of documents page 49.
In relation to complaint 1.3 (that the practitioner refused, or caused his client to refuse, the applicant's request for the repair of safety hazards identified in an annual future Independent Living Assessment), there is simply no cogent evidence before the Tribunal to support this allegation. In his reply, the applicant states that '[a]lmost every request under the [SRC Act] was challenged and assistance denied or delayed until an application or the intervention of the AAT' and that '[t]his practice continues today'.[38] However, this is a generalised assertion without any detail. Complaint 1.3 is therefore lacking in substance, because it involves an untenable proposition of fact.
[38] My Reply to [Decision] of the LPCC page 2.
As indicated earlier, complaint 2 involves an allegation that the practitioner refused to engage with the applicant's legal representatives, Ms AnnMarie Adam and Mr Gregory Kuscevich. However, the documentary evidence before the Tribunal is contrary to this assertion and shows that the practitioner engaged appropriately with the applicant's legal representatives.
On 8 March 1996, Ms AnnMarie Adam, who was then the applicant's legal representative, made an offer of settlement in the sum of $209,496.[39] On 14 March 1996, the firm responded to Ms Adam as follows:[40]
…
We acknowledge receipt of your letter dated the 8th instant.
With respect, that is not what the Registrar asked you to provide. You were asked to provide an indication of the sum that your client might be prepared to accept in settlement of this matter. What you have provided us with does not, nor can it, constitute an indication of what your client is prepared to accept.
In the circumstances, we would request, by return that you advise us what your client might be prepared to accept in resolution of this matter.
By way of comment, we believe that the figures that you have set out in your letter of the 8th instant are entirely unrealistic and unreasonable.
We await to hear from you by return.
…
[39] Legal Profession Complaints Committee s 24 bundle of documents page 206.
[40] Legal Profession Complaints Committee s 24 bundle of documents page 207.
It appears that Ms Adam did not respond to the firm's letter of 14 March 1996, because she advised the applicant that the 'demands' in the letter from the firm are 'unrealistic and unreasonable' and 'entirely par for the course for Cocks Macnish' and that 'I cannot recommend that you should moderate your demand to any significant extent'.[41]
[41] Legal Profession Complaints Committee s 24 bundle of documents page 208.
On 11 March 2004, the practitioner wrote to the applicant's then legal representative, Mr Greg Kuscevich, enquiring 'whether your client is interested in entertaining global settlement negotiations at this stage'.[42] There does not appear to have been a response to this letter. However, in September and October 2004 there was correspondence between the practitioner and the applicant in relation to the possibility of a 'global settlement'. On 15 October 2004, the practitioner wrote to the applicant as follows:[43]
…
We are instructed to put to you a without prejudice offer of settlement in the sum of $70,000 together with a contribution towards legal costs in full and final settlement of all of your entitlements, including any ongoing statutory and common law entitlements.
The offer is conditional upon a Deed of Release and Discharge being entered into with a confidentiality clause and appropriate orders disposing of the current proceedings.
It will also be a condition of settlement that you seek further advice from your solicitor in relation to the without prejudice offer.
…
[42] Legal Profession Complaints Committee s 24 bundle of documents page 210.
[43] Legal Profession Complaints Committee s 24 bundle of documents page 218.
The applicant did not accept this offer.
In his reply, the applicant states that:[44]
Mr Naseem would either, [sic] reject their offer outright or refuse to correspond with them. There was never any compromise made in reply to the offers by Mr Naseem.
[44] My Reply to [Decision] of the LPCC page 2.
However, the documentary evidence shows that the practitioner sought to engage meaningfully with the applicant's legal representatives to achieve a settlement of the compensation claim. Although the offer made in October 2004 was considerably less than the applicant's offer of 8 March 1996, and although settlement negotiations stalled, it appears that the practitioner was genuinely seeking to enter into settlement negotiations, while also seeking to minimise any settlement amount in his clients' interests. It appears that the applicant's legal representatives did not respond to the practitioner's requests for an offer of settlement or an indication as to whether the applicant was interested in entertaining a global settlement. The applicant also did not respond with a counter-offer to the offer of $70,000. Complaint 2.2 is lacking in substance, because it is untenable.
The decision of the Committee to dismiss complaints 1 and 2.2 was not wrong and was not attended with sufficient doubt to justify the grant of leave. Rather, it was the correct decision in relation to those complaints, because they are lacking in substance and require no further investigation. It was the correct decision to dismiss these complaints under s 415(1)(b) and s 415(3) of the LP Act.
Complaint 2.1 Refusal to engage with Mr Stubbs
As indicated earlier, complaint 2.1 is as follows:
When dealing with [the applicant's] legal representatives in relation to the ongoing compensation claims against Stateships, [the practitioner] refused to engage with these representatives including:
2.1.With Mr Guy Stubbs (as evidenced by a letter dated 20 December 2006 from Stateships to Mr Stubbs, a letter dated 16 February 2007 from Mr Stubbs to the practitioner and a letter dated 29 March 2007 from the practitioner to [the applicant]) (complaint 2.1)[.]
The Committee dismissed this complaint on the basis that it is 'vexatious and lacking in substance' and 'required no further investigation'.[45]
[45] Legal Profession Complaints Committee s 24 bundle of documents page 8.
On 20 December 2006, the practitioner wrote to the applicant in relation to various matters related to his ongoing compensation claim, including as follows:[46]
…
GLOBAL SETTLEMENT
We confirm our client's instructions to cover the cost of your lawyer, to be appointed to purely advise in terms of global settlement, to a maximum of $2,500.00.
…
[46] Legal Profession Complaints Committee s 24 bundle of documents page 200.
It appears that the applicant then retained Mr Guy Stubbs of the law firm Dwyer Durack to advise in terms of global settlement and subsequently instructed Mr Stubbs to make an offer to settle the compensation claim on the basis of a payment of $450,000 (net of all deductions), the applicant's retirement on grounds of ill-health and payment to him of any accrued employment entitlements.
In a facsimile transmission from the practitioner to Mr Stubbs dated 14 February 2007, the applicant's offer of global settlement in these terms was, in effect, rejected on the basis that it is:[47]
… wholly unreasonable in circumstances where his offer substantially exceeds his maximum entitlements until retirement under the seafarers legislation. Furthermore, it does not take in to account his retained earning capacity.
[47] Legal Profession Complaints Committee s 24 bundle of documents page 201.
The practitioner also observed in this correspondence that, in global settlement negotiations canvased approximately three years earlier, the applicant's expectations increased from $100,000 to $300,000 'without any explanation proffered for the basis of either figure'.[48]
[48] Legal Profession Complaints Committee s 24 bundle of documents page 202. The applicant's letter to the firm by facsimile transmission on 25 November 2005 (Applicant's bundle of documents page 57) confirms that he said that he would 'be prepared to accept' $300,000 net of tax in addition to all previous payments 'in full and final settlement of all claim'. The letter does not provide an explanation as to the basis of the $300,000 sum.
The facsimile transmission from the practitioner to Mr Stubbs on 14 February 2007 concludes as follows:[49]
…
As you are aware, our client has assisted Mr Lawson in the retention of a lawyer, in an effort to advance bona fide global settlement negotiations and trust that you will advise him accordingly in a bid to advance settlement discussions.
We would be grateful if you could obtain your client's instructions and revert with an offer of settlement with an explanation of its breakdown. We are happy to attend an informal conference in the matter with your client if it assists.
We look forward to hearing from you.
…
[49] Legal Profession Complaints Committee s 24 bundle of documents page 202.
However, rather than providing a further offer of settlement with an explanation as to its breakdown or accepting the practitioner's offer to attend an informal conference, two days later, on 16 February 2007, Mr Stubbs sent the following brief letter to the firm:[50]
…
We refer to your facsimile dated 14 February 2007.
In a bid to advance settlement negotiations please provide us with the terms of the best offer your client is prepared to make to settle this matter.
…
[50] Legal Profession Complaints Committee s 24 bundle of documents page 203.
It does not appear that the firm responded to Mr Stubbs' letter or provided its clients' 'best offer … to settle this matter'. On 22 March 2007, Mr Stubbs advised the firm by telephone that he was no longer acting on behalf of the applicant. In a facsimile transmission to the applicant on 29 March 2007, the practitioner said the following:[51]
[51] Legal Profession Complaints Committee s 24 bundle of documents pages 204 205.
Dear Sir,
RE: GLOBAL SETTLEMENT
We refer to your facsimile transmission of the 26th instant enclosing Dwyer Durack's account dated 22 March 2007 in the sum of $152.24.
We also refer to your lawyer's telephone message to us of the 22nd instant advising that he is no longer instructed to act on your behalf.
We have been unable to contact your lawyer, who we understand is on leave until 10 April 2007.
As you are aware, our client offered to contribute towards your legal costs in the retention of a lawyer for the purposes of engaging in bona fide global settlement negotiations. Other than your opening offer, we have not heard from your lawyer as to the basis of your settlement position or in respect of negotiating settlement.
If you are genuinely willing to enter into without prejudice settlement negotiations with our client, please advise.
We look forward to your early reply.
…
The documentary evidence is inconsistent with complaint 2.1. It is clear that the practitioner did not refuse to engage with Mr Stubbs. To the contrary, the employer and the insurer funded the appointment of Mr Stubbs to advise the applicant in terms of a global settlement and the practitioner responded to the applicant's opening offer of $450,000 in a reasoned manner. The practitioner asked Mr Stubbs to respond with an offer of settlement 'with an explanation of its breakdown'. This was perfectly reasonable, given that there was no explanation as to how the figure of $450,000 was determined and that the applicant's offer was substantially greater than his previous offer of $300,000. Furthermore, the practitioner indicated a willingness to attend an informal conference. It is also clear from the practitioner's correspondence on 29 March 2007 that he expressed a willingness to continue with settlement negotiations and asked the applicant for his 'early reply' as to whether he was 'genuinely willing to enter into without prejudice settlement negotiations'.
Complaint 2.1 is therefore vexatious, because it is made without sufficient grounds and serves only to cause annoyance, and lacking in substance, because it involves an untenable proposition of fact. The decision of the Committee to dismiss this complaint was not wrong and was not attended with sufficient doubt to justify the grant of leave. Rather, it was the correct decision under s 415(1)(b) and s 415(3) of the LP Act.
Complaint 3.1 Refusal to obtain a copy of a doctor's report and then appealing a decision of the AAT on the basis that the report had not been submitted
As indicated earlier, complaint 3.1 is as follows:
In conducting the matter on behalf of his client:
3.1.[the practitioner] refused to obtain a copy of a doctor's report which [the applicant] had authorised him to obtain and then subsequently appealed a decision of the Administrative Appeals Tribunal ([2008] AATA 643) on the basis that this report had not been submitted to the AAT (complaint 3.1)[.]
The Committee dismissed this complaint on the basis that it is 'vexatious and lacking in substance' and 'required no further investigation'.[52]
[52] Legal Profession Complaints Committee s 24 bundle of documents page 9.
In his reply, the applicant states as follows:[53]
3.1In 2006. [sic] I gave [the practitioner] permission on several occasions to obtain Dr Wu's report. As the Doctor's office is in the same street as [the practitioner's] Law firm, there was no impediment for him or his office staff obtaining the report. I offered to give Dr Wu his list of questions at a consultation I was to have with Dr Wu, which was to take place prior to the AAT meeting. [sic] but [the practitioner] declined the offer. Now I believe this was a deliberate act to mislead the AAT and to cause an error in law that he would rely upon should things not go his way.
[53] My Reply to [Decision] of the LPCC page 3.
The report, which is the subject of this complaint, was by a psychiatrist, Dr Raymond Wu. In Stateships v Lawson [2009] FCA 59, Gilmour J said the following at [29]:[54]
Dr Knight, the respondent's general practitioner since 2001, referred the respondent to a psychiatrist, Dr Wu. Dr Wu saw the respondent on 26 June 2006 and prepared a report dated 5 July 2006. Dr Knight said that one of the main focuses of sending the respondent to Dr Wu was to assess the respondent's likely suicide potential. She did not state what, if any, were the other reasons. Dr Wu's report was not provided by Dr Knight to the [AAT] although she had it with her whilst giving evidence. The [AAT] did not require that it be produced because it did not want her to feel 'uncomfortable' about doing so. The appellant's solicitors requested a copy of Dr Wu's report from the respondent however the respondent was unable to obtain a copy from Dr Knight and for that reason did not provide a copy to the [employer].
[54] Emphasis added.
The 'appellant's solicitors' referred to by Gilmour J is the firm. His Honour's findings that the firm (the practitioner) 'requested a copy of Dr Wu's report from the respondent [that is, in this case, the applicant]' and that the applicant 'was unable to obtain a copy from Dr Knight and for that reason did not provide a copy to the [employer]' are inconsistent with complaint 3.1. The firm sought a copy of Dr Wu's report from the applicant, but the applicant did not provide a copy to the employer.
Furthermore, the applicant's statement that 'I gave [the practitioner] permission on several occasions to obtain Dr Wu's report' is not supported by the documents submitted by the applicant to the Committee and to the Tribunal. In a letter by facsimile transmission to the employer dated 14 July 2006, the applicant submitted a 'list of people you may wish to contact to assist in your decision' in relation to his compensation claim, which included Dr Wu.[55] Similarly, in a letter by facsimile transmission to the firm dated 19 March 2007, the applicant, after referring to attached reports by Dr Knight and Ms Duncan, said:[56]
…
Should you want further medical reports please contact Dr Wu and Dr Knight as they have both said that they will supply you with a report should you request one.
…
[55] Legal Profession Complaints Committee s 24 bundle of documents page 225.
[56] Legal Profession Complaints Committee s 24 bundle of documents page 226 (emphasis added).
On 9 July 2007, the practitioner advised the applicant that the firm was 'currently obtaining our client's instructions in respect of briefing Dr Wu'.[57]
[57] Applicant's bundle of documents page 66.
Thus, the documentary evidence does not indicate that the applicant gave the practitioner permission to obtain the particular report referred to by Dr Knight in her evidence before the AAT, which was discussed by Gilmour J in the appeal decision. Rather, the applicant suggested that the employer may wish to contact Dr Wu 'to assist in your decision' and that, if the firm wished to obtain a further medical report, it could contact Dr Wu. This is consistent with the correspondence from the practitioner to the applicant on 9 July 2007 which refers to 'instructions in respect of briefing Dr Wu', rather than obtaining a copy of the particular report that Dr Knight referred to in her evidence before the AAT.
Furthermore, the practitioner did not appeal the decision of the AAT on the basis that Dr Wu's report had not been submitted to the AAT. Rather, the appeal was, in part, on the basis that there was insufficient evidence before the AAT on which it could find that the applicant contracted a psychiatric disorder and continued to suffer from a psychiatric disorder. While Gilmour J observed, in passing, in Stateships v Lawson at [48] that it was 'regrettable that the Tribunal did not insist on Dr Wu's report being produced by Dr Knight', that was because, as his Honour said in the preceding two sentences:
Dr Wu, a specialist psychiatrist was not prepared to conclude that the [applicant] was depressed. He positively concluded that the [applicant] was not actually suicidal.
At [47], his Honour determined that the finding by the AAT that the applicant contracted a psychiatric disorder involving depression and continued to suffer from such an injury 'was not founded on probative evidence' and '[i]ndeed it was contrary to the evidence which was probative'. As his Honour explained, this was because the evidence of Dr Knight concerning the question of whether the applicant suffered depression or any injury involving depression 'was, with due respect to her, overstated and her reports misstated the involvement and diagnosis of Dr Wu'. His Honour also observed that Dr Knight's evidence 'in this respect was at odds with what Dr Wu had stated even on her account'.
Thus, the appeal to the Federal Court was not on the basis that Dr Wu's report had not been submitted to the AAT. Rather, the appeal was, in part, on the basis, and succeeded on the basis, that the AAT's decision was contrary to the probative evidence, including what Dr Wu said in his report 'even on [Dr Knight's] account' of Dr Wu's report. Significantly, Dr Wu did not conclude that the applicant was depressed and positively concluded that he was not suicidal.
The decision of the Committee to dismiss complaint 3.1 was not wrong and was not attended with sufficient doubt to justify the grant of leave. Rather, it was the correct decision. Complaint 3.1 is vexatious, because it is made without sufficient grounds and serves only to cause annoyance, and is lacking in substance, because it involves untenable propositions of fact, and requires no further investigation. It was the correct decision to dismiss complaint 3.1 under s 415(1)(b) and s 415(3) of the LP Act.
Complaint 3.2 Submission of a claim for costs in Federal Court proceedings which was false and/or included excessive charges
As indicated earlier, complaint 3.2 is as follows:
In conducting the matter on behalf of his client:
…
3.2.[the practitioner] submitted a claim for costs in relation to Federal Court Appeal WAD 175 of 2008 which was false and/or included excessive charges (complaint 3.2)[.]
The Committee dismissed this complaint on the basis that it is 'vexatious and lacking in substance' and 'required no further investigation'.[58]
[58] Legal Profession Complaints Committee s 24 bundle of documents page 10.
As the Committee correctly observed in its reasons for decision at [32], this complaint is largely 'based on the complainant's misunderstanding of the relationship between the practitioner, Stateships and the Insurer'. In particular, the applicant contends that the practitioner's claims for obtaining instructions from the insurer are false, because the insurer stated in an email in late 2014 that '[w]e have not and can not [sic] be expected to control the conduct of our Members' cases, that responsibility rests with our Members'.[59] However, as we said earlier, the firm (and the practitioner) was acting for both the employer and the insurer in relation to the compensation claim generally, including in relation to the various AAT and Federal Court proceedings. Although daytoday instructions in relation to the conduct of the claim were provided by the employer (which is based in Perth), rather than by the insurer (which appears to be based in the United Kingdom), the practitioner sought instructions on certain matters from both. Understandably, one such matter was in relation to the significant decision as to whether to commence the Federal Court appeal.
[59] Legal Profession Complaints Committee s 24 bundle of documents page 245 and applicant's bundle of documents page 92.
Furthermore, insofar as the applicant suggests that certain items in the claim for costs involved 'excessive charges', the firm filed an itemised bill of costs for taxation (in the total sum of $54,165.42) and the Court issued an estimate of the employer's likely taxation award (in the sum of $31,974), which the employer objected to, but before the taxation process was complete, the applicant made an offer of settlement in relation to costs of $35,000 with a Certificate of Taxation to issue, which was accepted by the employer.
The decision of the Committee to dismiss complaint 3.2 was not wrong and was not attended with sufficient doubt to justify the grant of leave. Rather, it is the correct decision. Complaint 3.2 is vexatious and lacking in substance, because it is largely based on the applicant's misunderstanding as to who the practitioner was acting for, and also, insofar as it contends that the employer's claim for costs included excessive charges, it is vexatious, given that the applicant himself made a settlement offer of $35,000 in relation to those costs, which was accepted. In these circumstances, complaint 3.2 is made without sufficient grounds and serves only to cause annoyance. The complaint requires no further investigation. It was the correct decision to dismiss complaint 3.2 under s 415(1)(b) and s 415(3) of the LP Act.
Complaint 3.3 Lying about the identity of the practitioner's client and fabricating an inability to obtain instructions from his client
As indicated earlier, complaint 3.3 is as follows:
In conducting the matter on behalf of his client:
…
3.3.[the practitioner] lied about the identity of his client and fabricated an inability to obtain instructions from his client (complaint 3.3)[.]
The Committee dismissed the complaint on the basis that it is 'vexatious and lacking in substance' and 'required no further investigation'.[60]
[60] Legal Profession Complaints Committee s 24 bundle of documents page 10.
In his reply, the applicant states as follows:[61]
In 2003. [sic] [the practitioner] lied about waiting for instructions from his offshore client, The Insurer. He said he was waiting for permission to allow PostOperative Home Care and other Home Care assistance. I have since been told by the Insurer that these issues had nothing to do with them and was wholly the responsibility of Stateships / dept [sic] of Transport.
The Staff at Stateships also said they were waiting for instructions from the insurer's representative, [the practitioner], before they could allow the provision of the home support. Recently the Insurer has said these matters had nothing to do with them. Once again this Begs [sic] the question. Who was Instructing [sic] [the practitioner].
[61] My Reply to [Decision] of the LPCC pages 4 - 5. We note that, in this statement, the applicant specifies that this conduct occurred in '2003', which was more than six years before the applicant's first complaint to the Committee. However, it appears that the complaint, as made to the Committee, included conduct alleged to have occurred within six years of when the complaint was made.
However, as indicated earlier, the firm (and the practitioner) was acting for both the employer and the insurer in relation to the compensation claim. Although daytoday instructions were given by the employer, the firm sought instructions from the insurer in relation to certain aspects of the matter. This arrangement was appropriate and understandable, given that the employer is local and the insurer appears to be based in the United Kingdom. Beyond the applicant's bald assertion, there is no evidence that the practitioner ever fabricated an inability to obtain instructions.
The decision of the Committee to dismiss complaint 3.3 was not wrong and was not attended with sufficient doubt to justify the grant of leave. Rather, it was the correct decision. This complaint is vexatious, because it is made without sufficient grounds and serves only to cause annoyance, and is lacking in substance, because it involves untenable propositions of fact, and requires no further investigation. It was the correct decision to dismiss the complaint under s 415(1)(b) and s 415(3) of the LP Act.
Complaint 3.4 Stating that information the applicant sought from the practitioner's client was not retained by the client
As indicated earlier, complaint 3.4 is as follows:
In conducting the matter on behalf of his client:
…
3.4.[the practitioner] stated in a letter dated 13 May 2015 that the information [the applicant] sought from Stateships was not retained by his client (noting that [the applicant's] compensation claim had spanned in excess of 20 years) in circumstances where [the applicant was] later advised by the State Records Office that the documents were and should be available (complaint 3.4)[.]
The Committee dismissed this complaint on the basis that it is 'vexatious and lacking in substance' and 'required no further investigation'.[62]
[62] Legal Profession Complaints Committee s 24 bundle of documents page 11.
As indicated earlier, the Commissioner of the Western Australian Coastal Shipping Commission said in a letter to the applicant dated 4 March 2015 that 'you have been paid benefits estimated to be in excess of $1 million'.[63] In a letter dated 10 March 2015 to the firm, the applicant's then legal representative, Mr Andrew Ponnambalam of the law firm Bradley Bayly Legal, requested 'a breakdown of how the amount in excess of $1 million was paid to Mr Lawson'.[64] The firm responded to Bradley Bayly by letter dated 13 March 2015 as follows:[65]
…
We have sought our client's instructions and they advise that there exists no reconciliation of compensation paid to your client. As you will appreciate, Mr Lawson's compensation has spanned in excess of 20 years, with such information not being kept by our client over such an extended timeframe. We would suggest that you take instructions in this regard from your client.
…
[63] Legal Profession Complaints Committee s 24 bundle of documents page 248.
[64] Legal Profession Complaints Committee s 24 bundle of documents page 250.
[65] Legal Profession Complaints Committee s 24 bundle of documents page 251.
The applicant contends that his enquiries have shown that the statement in the correspondence from the firm dated 13 March 2015 that 'there exists no reconciliation of compensation paid to your client' and that, as the applicant's compensation had 'spanned in excess of 20 years, with such information not being kept by our client over such an extended timeframe',[66] is false.
[66] Legal Profession Complaints Committee s 24 bundle of documents page 251.
In various documents submitted to the Committee and to the Tribunal, the applicant has given a number of inconsistent statements as to the period of time that his enquiries have revealed that the employer must retain the information sought by Bradley Bayly Legal. In his reply, the applicant said that the documents must be kept 'until 7years after my claim is over'[67] and 'for more than 30 Years'.[68] In an email to the Committee on 31 January 2017, the applicant stated as follows:[69]
…
I made enquires at the State Records Office and found that the documents were and are available and would be for seventy years.
…
[67] My Reply to [Decision] of the LPCC page 5 (original emphasis).
[68] My Reply to [Decision] of the LPCC page 32.
[69] Legal Profession Complaints Committee s 24 bundle of documents page 126.
In a letter by facsimile transmission to the employer dated 23 July 2014, the applicant said:[70]
…
You told me, through your solicitor, that you could not help because you were only required to keep records for seven (7) years[.]
I have since learned that should an injury result in medical intervention, you were and are required to keep documents for thirty (30) years.
…
[70] Applicant's bundle of documents page 60.
The documentary evidence submitted by the applicant to the Committee and to the Tribunal does not bear out any of the applicant's inconsistent statements as to what his 'enquiries' revealed. The only document from the State Records Office submitted by the applicant is an email from an archives research officer who said that the State Records Office does not hold personnel records of the employer. The officer also said that, to his knowledge, 'the record of service cards of former … employees were retained by [the Department of] Transport after State Ships [sic] ceased to function, because of ongoing workers' compensation issues'. The officer then said the following:[71]
…
Nevertheless, if you remained an employee of the Department of Transport until five years ago one would assume that Transport would still retain a record of your employment with both agencies.
…
[71] Legal Profession Complaints Committee s 24 bundle page 255 (emphasis added).
The applicant also submitted an email from an officer of the Seacare Secretariat, which is part of the Commonwealth agency Comcare, stating as follows:[72]
…
I apologise for the delay in responding to your enquiry.
While there is no requirement under the Seafarer Act to hold claim documents, the Administrative Functions Disposal Authorities under the Archives Act 1983 set out the following requirement:
Compensation Cases (Claim files) Includes:
Determinations/reports/certs/agreements/appeals/recons/RTWP's/claim forms/reviews etc[.]
Must be destroyed 75yrs after D.O.B. or 7 years after last action (whichever is longest) ([i]f no DOB is known assume DOI to be 15 yrs of age)[.]
Please do not hesitate to contact me if you would like to discuss this matter further.
…
[72] Legal Profession Complaints Committee s 24 bundle page 256 (emphasis added).
Thus, the documentary evidence consists of a statement by an officer of the State Records Office that he would 'assume' that the Department of Transport would retain a record of the applicant's employment and a statement by an officer of the Seacare Secretariat of Comcare as to when documents '[m]ust be destroyed', namely at 75 years after date of birth or seven years after last action (whichever is the longer). Neither of these documents supports the applicant's contention that the employer was under a legal obligation to retain all of his claim documents, whether for seven years after his claim is over, for 30 years or for 70 years. It follows that the complaint is lacking in substance, because it involves untenable propositions of fact (that a reconciliation of compensation paid to the applicant over 20 years exists in the records of the employer) and of law (that the employer was under a legal obligation to maintain the reconciliation of compensation over that period).
Furthermore, this complaint is vexatious and misconceived, because even if the employer had acted in breach of a legal obligation to retain documents (which is not established on the evidence), this could not amount to unsatisfactory professional conduct or professional misconduct on the part of the practitioner. As the practitioner said in the firm's letter of 13 March 2015 to Bradley Bayly Legal, '[w]e have sought our client's instructions and they advise that there exists no reconciliation of compensation paid to your client'.[73] This statement was expressly made on the basis of instructions sought from the client and conveyed the result of those instructions. In these circumstances, complaint 3.4 is vexatious, because it is made without sufficient grounds and serves only to cause annoyance, and is misconceived, because it involves a misunderstanding of legal principle, as even if the practitioner's instructions were wrong or the employer was in breach of a legal obligation to maintain the reconciliation of compensation over the period, the practitioner's conduct in conveying his instructions could not possibly constitute unsatisfactory professional conduct or professional misconduct on his part.
[73] Legal Profession Complaints Committee s 24 bundle of documents page 250 (emphasis added).
Finally, in relation to this complaint, the applicant states in his reply that the employer's instructions to the practitioner were given by a particular officer of the employer who is a 'person with little to no experience in these matters' and contends that the practitioner 'as a Compensation Lawyer and presumably familiar with the [SRC Act] … [s]hould have been aware of the availability of documents or at least made adequate discovery'.[74]
[74] My Reply to [Decision] of the LPCC page 5.
However, there is no evidence that the officer named by the applicant was the source of the instructions conveyed by the practitioner, nor is there any cogent evidence that she had 'little to no experience'. Furthermore, even assuming that the officer was the source of these instructions and had little to no relevant experience, the practitioner was under no duty to go behind those instructions.
The decision of the Committee to dismiss complaint 3.4 was not wrong and was not attended with sufficient doubt to justify the grant of leave. Rather, it was the correct decision. Complaint 3.4 is misconceived, vexatious and lacking in substance and requires no further investigation. It was the correct decision to dismiss this complaint under s 415(1)(b) and s 415(3) of the LP Act.
Complaint 3.5 Failing to reimburse applicant postage of $8.90
As indicated earlier, complaint 3.5, as stated by the Committee, is as is follows:
In conducting the matter on behalf of his client:
…
3.5[the practitioner] when appearing at a conciliation conference in the AAT in 2014, agreed to reimburse [the applicant] for postage of $8.90 being the cost of having Stateships' bundle of Tdocuments released from the Post Office but then failed to do so (complaint 3.5)[.]
The Committee dismissed this complaint on the basis that it is 'vexatious and lacking in substance' and 'required no further investigation'.[75]
[75] Legal Profession Complaints Committee s 24 bundle of documents page 12.
In his reply, the applicant contends that complaint 3.5 was in fact not 'a complaint', but rather was 'an example of the trivial issues [the practitioner] was insisting be dealt with at the AAT'.[76]
[76] My Reply to [Decision] of the LPCC page 34.
Whether the applicant intended to make a specific complaint about this aspect or merely refer to it as 'an example' of the practitioner's conduct, there is no cogent evidence before the Tribunal that the practitioner, when appearing at a conciliation conference in the AAT in late 2014, agreed, but then failed, to reimburse the applicant for postage of $8.90. The only documentary evidence in relation to this aspect is inconsistent with this complaint. That documentary evidence is a letter from the firm to the applicant dated 18 September 2014 which invites the applicant to identify the provision of the SRC Act 'which entitles you to reimbursement for the sum referred to'.[77]
[77] Legal Profession Complaints Committee s 24 bundle of documents page 260.
The decision of the Committee to dismiss complaint 3.5 was not wrong and was not attended with sufficient doubt to justify the grant of leave. Rather, it was the correct decision. Complaint 3.5 is vexatious, because it is made without sufficient grounds and serves only to cause annoyance, and is lacking in substance, because it involves an untenable proposition of fact, and requires no further investigation. It was the correct decision to dismiss this complaint under s 415(1)(b) and s 415(3) of the LP Act.
Complaint 3.6 Instructing the employer to close the applicant's freedom of information application
As indicated earlier, complaint 3.6 is as follows:
In conducting the matter on behalf of his client:
…
3.6.[the practitioner] 'instructed Stateships to close' [the applicant's] Freedom of Information application filed on 5 October 2014 in which [the applicant] requested information as to the name of the insurer involved in [the applicant's] compensation claim while an internal review of the FOI decision was still being undertaken and in an attempt to corrupt the FOI process (complaint 3.6)[.]
The Committee dismissed this complaint on the basis that it is 'vexatious and lacking in substance' and 'required no further investigation'.[78]
[78] Legal Profession Complaints Committee s 24 bundle of documents page 13.
On 7 October 2014, the applicant applied to the Department of Transport for access to the name of the insurer under the Freedom of Information Act 1992 (WA) (FOI Act). On 27 October 2014, the Department of Transport responded to the application under the FOI Act as follows:[79]
…
You have been granted access to an email address of [email protected] which will allow you to liaise directly with the claims handler.
…
[79] Legal Profession Complaints Committee s 24 bundle of documents page 261.
The email address provided by the Department of Transport directed the applicant to the website which is the website of the insurer. The insurer's website identifies its name.
On 30 October 2014, the applicant sought an internal review of the decision to provide him with the email address of the insurer under the FOI Act, on the basis that the Department of Transport provided him 'with the email address of the insurer, not the name of the insurer as initially requested'.[80]
[80] Legal Profession Complaints Committee s 24 bundle of documents page 264.
On 5 November 2014, the applicant wrote a letter to the employer, which he copied to the insurer's website. Although the applicant's letter of 5 November 2014 is not in the evidence before the Tribunal, the response from the firm to that letter on 6 November 2014 is before the Tribunal. In that letter, the practitioner requested the applicant to '[k]indly desist from making spurious allegations against our client which are unhelpful and not constructive'.[81] The letter contains the following final paragraph:[82]
We fail to understand why in your first letter you raise historical and irrelevant matters and note that you have copied the letter to ' The identity of the P&I Club is stated on the website[.] Accordingly, our client will deem closed your FOI application given that you already have the requested information.
[81] Legal Profession Complaints Committee s 24 bundle of documents page 263.
[82] Legal Profession Complaints Committee s 24 bundle of documents page 263.
On 7 November 2014, the applicant's application for internal review of the decision under the FOI Act was allowed and the original decision was varied by stating 'The name of the insurer is The London P&I Club'.[83]
[83] Legal Profession Complaints Committee s 24 bundle of documents page 264.
The applicant contends that the email address that he was given under the FOI Act was the email address of the practitioner and not the name and address of the insurer. Other than this bald assertion, there is no evidence that the email address was that of the practitioner. In any case, as indicated earlier, the email address directed the applicant to the website of the insurer, which identified its name, and he copied his letter to the employer on 5 November 2014 to the insurer at its website.
The applicant contends that:[84]
…
When I asked for an internal review, [the practitioner] instructed [the employer] to close the file, in what I believe, was an attempt [to] corrupt the FOI process. Thus, preventing me from contacting the Insurer directly.
…
[84] My Reply to [Decision] of the LPCC page 6.
The applicant's assertions are incorrect. The practitioner's letter of 6 November 2014 was not in response to the application for internal review of the decision under the FOI Act, but rather in response to the applicant's letter to the employer on 5 November 2014. As indicated earlier, the applicant sought internal review of the decision under the FOI Act on 30 October 2014. Furthermore, the practitioner's statement that 'our client will deem closed your FOI application given that you already have the requested information'[85] was not 'an instruction' to the employer to close the FOI application, but rather a reflection of the fact that the applicant had already been (indirectly) given the name of the insurer and had communicated directly with the insurer.
[85] Legal Profession Complaints Committee s 24 bundle of documents page 263.
Further, the practitioner plainly did not 'instruct' the employer to close the FOI application, given that, on the very next day, the application for internal review was allowed and the Department of Transport informed the applicant that 'The name of the insurer is The London P&I Club'. Of course, the applicant was already aware of the name of the insurer, because he had communicated directly with the insurer two days earlier.
It follows that complaint 3.6 is vexatious, because it is made without sufficient grounds and serves only to cause annoyance, and is lacking in substance, because it involves an untenable proposition of fact. It is also misconceived, involving a misunderstanding of legal principle, because the practitioner was the agent of the employer, not a principal. He had no authority, nor did he purport to, 'instruct' the employer to close the applicant's application under the FOI Act.
The decision of the Committee to dismiss complaint 3.6 was not wrong and was not attended with sufficient doubt to justify the grant of leave. Rather, it was the correct decision. This complaint is vexatious and lacking in substance, and misconceived, and requires no further investigation. It was the correct decision to dismiss the complaint under s 415(1)(b) and s 415(3) of the LP Act.
Complaint 3.7 Intervention to stop renovation work to applicant's bathroom
As indicated earlier, complaint 3.7, as stated by the Committee, is as follows:
In conducting the matter on behalf of his client:
…
3.7.[the practitioner] intervened in October 2016 to stop the renovation work to [the applicant's] bathroom which was work that Stateships had agreed to complete and was work that was recommended in an Independent Living Assessment (complaint 3.7).
The Committee dismissed this complaint on the basis that it is 'vexatious and lacking in substance' and 'required no further investigation'.[86]
[86] Legal Profession Complaints Committee s 24 bundle of documents page 13.
In his reply, the applicant says that the Committee's formulation of this complaint is incorrect, because the practitioner did not try to stop the renovation, but rather 'intervened and objected to the payment of a Drain Connection, a cost that [the employer] had already agreed to meet'.[87]
[87] My Reply to [Decision] of the LPCC page 37.
However, there is no evidence before the Tribunal, other than this bald assertion, to support this complaint. The decision of the Committee to dismiss this complaint was not wrong and was not attended with sufficient doubt to justify the grant of leave. Rather, it was the correct decision. Complaint 3.7 is vexatious, because it is made without sufficient grounds and serves only to cause annoyance, and is lacking in substance, because it involves an untenable proposition of fact, and requires no further investigation. It was the correct decision to dismiss the complaint under s 415(1)(b) and s 415(3) of the LP Act.
Procedural fairness
In his submissions, the applicant contends that he was denied procedural fairness by the Committee. He considers that he was denied procedural fairness, because he did not receive adequate responses to his correspondence, his requests for interviews to discuss his concerns were ignored and the Committee 'had apparently predetermined the fate of my complaints'.[88]
[88] Applicant's written submissions page 2.
An application for review of a decision under s 435(1) of the LP Act and an application for leave to seek review of a decision under s 435(2) of the LP Act does not involve a review of the process before the Committee, but rather concerns the decision of the Committee. In any case, it is clear from the correspondence between the applicant and the Committee that the applicant was not denied procedural fairness by the Committee. The applicant was given a reasonable opportunity to present his complaints in writing. There is no evidence to support an allegation that the Committee predetermined the fate of the applicant's complaints. Rather, the Committee considered the applicant's complaints and determined (correctly) that the complaints should be summarily dismissed under s 415 of the LP Act.
Furthermore, and in any case, in this proceeding, the applicant has been afforded procedural fairness (consistently with s 32(1) of the SAT Act) in relation to the application for leave to seek review of the Committee's decision to dismiss his complaints.
Conclusion
The decision of the Committee to dismiss each of the applicant's complaints about the practitioner was not wrong and was not attended with sufficient doubt to justify the grant of leave to seek review of that decision. Rather, it was the correct decision to summarily dismiss each of the applicant's complaints under s 415(1)(b) and s 415(3) of the LP Act.
Orders
The Tribunal therefore orders as follows:
1.The application under s 435(2) of the Legal Profession Act 2008 (WA) for leave to seek review of the decision of the first respondent to dismiss the applicant's complaints about the second respondent is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MF
Associate to the Honourable Judge Parry4 JUNE 2019
7
7
4