LEE and LAW COMPLAINTS OFFICER, AS THE DELEGATE FOR THE LEGAL PROFESSION COMPLAINTS COMMITTEE
[2022] WASAT 53
•23 JUNE 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008
CITATION: LEE and LAW COMPLAINTS OFFICER, AS THE DELEGATE FOR THE LEGAL PROFESSION COMPLAINTS COMMITTEE [2022] WASAT 53
MEMBER: JUDGE H JACKSON, DEPUTY PRESIDENT
MR J O'SULLIVAN, SENIOR MEMBER
MR R POVEY, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 23 JUNE 2022
FILE NO/S: VR 22 of 2021
BETWEEN: JEFFREY LEE
Applicant
AND
LAW COMPLAINTS OFFICER, AS THE DELEGATE FOR THE LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
MARTIN LAWRENCE BENNETT
Second Respondent
NICOLA EMMA RANDALL
Third Respondent
ALEXANDER JAMES THARBY
Fourth Respondent
Catchwords:
Vocational regulation Legal practitioner Review of decision dismissing complaints Complaint that practitioners filed 'wrong' witness summary Complaint that practitioners failed to advise as to merits of calling witnesses Complaint that practitioners failed to have witness declared hostile Complaint that practitioners failed to enforce a subpoena Complaint that practitioners failed to include certain documents in trial bundle
Legislation:
Defamation Act 2005 (WA), s 30
Legal Profession Act 2008 (WA), s 402, s 403, s 410(1)(e), s 412, s 413, s 415, s 415(1)(b), s 415(3), s 421(2), s 421(3), s 424(1), s 425, s 426, s 428, s 435, s 435(2), s 435(2)(a).
State Administrative Tribunal Act 2004 (WA), s 17(1), s 18, s 29(1), s 29(3), s 36(5)
Result:
Application for review dismissed
Decision of the first respondent affirmed
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| First Respondent | : | N/A |
| Second Respondent | : | N/A |
| Third Respondent | : | N/A |
| Fourth Respondent | : | N/A |
Solicitors:
| Applicant | : | N/A |
| First Respondent | : | Legal Profession Complaints Committee |
| Second Respondent | : | Bennett + Co |
| Third Respondent | : | Bennett + Co |
| Fourth Respondent | : | Bennett + Co |
Case(s) referred to in decision(s):
Chen and Law Complaints Officer [2022] WASAT 26
DeAbreu and Legal Profession Complaints Committee [2022] WASAT 42
Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2018] WASCA 32
Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117
Lawson and Legal Profession Complaints Committee [2019] WASAT 36
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331; (2018) 12 ARLR 135
Quinlivan and Legal Profession Complaints Committee [2012] WASAT 98
Re Rules of the Supreme Court 1971 (WA); Ex parte Kingsfield Holdings Pty Ltd [2021] WASC 16
SJX and Legal Profession Complaints Committee [2012] WASAT 154
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction and Overview
In 2012, through a company of which he was sole director, the applicant operated a food business on Rottnest Island.
In January of that year, after an inspection of the food business by officers of the Department of Health, the operator of another Rottnest food business had a conversation with the Rottnest Island Authority's leasing agent.
One of the things said in that conversation was the subject of defamation proceedings brought in 2013 by both the applicant and his company.
Until September 2015, the applicant's own law firm acted on behalf of both plaintiffs in those proceedings. After that date he engaged external lawyers.
The proceedings went to trial in November 2015 and were unsuccessful. Orders dismissing the proceedings were made in April 2016.
In July 2019 the applicant complained to his former lawyers about certain matters regarding their conduct of those proceedings. In September 2019 he lodged a formal complaint with the first respondent.
The first respondent dismissed the complaints on 9 March 2021 and the applicant seeks the Tribunal's review of that dismissal.
There are five grounds of complaint, three of which concern the handling by the second to fourth respondents of the evidence of a particular witness, one which concerns their alleged delay in enforcing a subpoena and one which concerns their alleged failure to include certain documents in the trial bundle.
In our view, two of the complaints are without substance.
As to each of the other complaints, we are of the view that there is no reasonable cause to suspect that any of the second to fourth respondents have been guilty of unsatisfactory professional conduct or professional misconduct.
Neither is there any realistic prospect that further investigation by the first respondent would result in the discovery of any additional information or any new perspectives on existing material concerning those complaints.
Accordingly, we are of the view that the application for review in its entirety should be dismissed.
Background
On 23 January 2012, officers of the Western Australian Department of Health conducted a routine food safety inspection of Quokka Joe's Café on Rottnest Island.
Quokka Joe's Café is operated by Kingsfield Holdings Pty Ltd (Kingsfield). Mr Lee, the applicant in these proceedings, is the sole director of Kingsfield. His complaint is made on behalf of himself and Kingsfield.[1]
[1] Section 24 Bundle of Documents dated 25 May 2021 (Respondent's Bundle), Document 2, page 7.
Following a three-day trial in defamation proceedings brought by Mr Lee and Kingsfield against a Mr Rutherford, Kenneth Martin J found that Quokka Joe's Café:
closed abnormally [on 23 January 2012] for a period, so that some cleaning and other relatively minor issues arising as a consequence of the visit of the health department inspectors that day could be immediately addressed by Quokka Joe's staff.[2]
[2] Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117 (Kingsfield Holdings) at [261].
Quokka Joe's was also closed on 24 and 25 January 2012. It reopened on Thursday 26 January 2012. A few days later, on 31 January 2012, the inspection was the subject of a discussion between Mr Rutherford and a Mr Duffield.[3]
[3] Kingsfield Holdings at [232(i)].
Mr Rutherford is closely associated with the Rottnest Bakery and a nearby food outlet then known as the Rottnest Café (being the former Red Rooster premises). Both premises were run by Abellio Pty Ltd (Abellio) of which Mr Rutherford was both a director and a dominant share holder. In 2012 Mr Rutherford had been associated with the operation of retail businesses on Rottnest Island for approximately 40 years.[4]
[4] Kingsfield Holdings at [13] and [18] [21].
Mr Duffield is a real estate agent. He was, at least at the time of the defamation trial, a director of Sullivan Commercial Pty Ltd (trading as McGee's Property) (Sullivans). For several years prior and up to and including January 2012, Sullivans was appointed and acted as commercial property and leasing agent by the Rottnest Island Authority.[5]
[5] Kingsfield Holdings at [14] - [15].
Mr Rutherford and Mr Duffield knew each other through their respective roles and met, incidentally, on 31 January 2012. During their discussion Mr Rutherford told Mr Duffield that there had been an inspection of Quokka Joe's Café and that it had been closed. Specifically, the defamation trial proceeded on the agreed basis that Mr Rutherford told Mr Duffield that:
Quokka Joe's Café had been closed following a health inspection of the café last week (the Spoken Words).[6]
[6] Kingsfield Holdings at [6] - [7] and [59].
Following that discussion, Mr Duffield returned to the mainland and dictated a letter which was sent to Kingsfield (McGees Letter) which stated that Mr Duffield had 'been advised that the Café has been closed following a Health Inspection of the premises last week' and asked, in accordance with the relevant clause of the relevant lease, that Kingsfield 'confirm (or otherwise) the inspection and forward a copy of any Health Notices issued for the premises'.[7]
[7] Kingsfield Holdings at [78].
Notwithstanding the bland text of the McGees Letter, Mr Lee appears to have taken considerable offence at it and several exchanges of correspondences and investigations ensued, none of which need to be described in any detail.[8]
[8] Kingsfield Holdings at [232(l)-(ff)].
On 17 December 2012 Kingsfield commenced proceedings for preaction discovery against Sullivans and the Rottnest Island Authority, one result of which was that on 23 January 2013 Mr Duffield swore an affidavit in which he said that Mr Rutherford had been the source of the information which informed the McGees Letter; i.e. in effect, that Mr Rutherford had said to Mr Duffield the Spoken Words.[9]
[9] Kingsfield Holdings at [232(gg)].
On the same day as Mr Duffield's affidavit, Kingsfield commenced defamation proceedings against Mr Rutherford. A week later, on 30 January 2013, Kingsfield commenced defamation proceedings against Sullivans, and Mr Lee commenced defamation proceedings against both Mr Rutherford and Sullivans.[10] In all four actions both Mr Lee and Kingsfield were represented by Mr Lee's own law firm, Avedon Lee.
[10] Kingsfield Holdings at [232(hh)].
Both proceedings against Sullivans were later dismissed by consent on 23 March 2015.[11] The remaining proceedings, against Mr Rutherford by both Mr Lee and Kingsfield, proceeded to the trial referred to above which was heard on 11, 12 and 20 November 2015.
[11] Kingsfield Holdings at [232(hh)].
In the result, both proceedings were dismissed. In the case of the proceedings commenced by Mr Lee, his Honour held that the Spoken Words failed to identify Mr Lee as an object of them. As a result, Mr Lee's claim against Mr Rutherford failed on that basis alone. [12]
[12] Kingsfield Holdings at [134] - [135].
His Honour also found that the proceedings 'must fail' because the Spoken Words did not give rise to any of the three innuendos Mr Lee and Kingsfield said arose.[13] That is, the Spoken Words were held not to be defamatory.
[13] KingsfieldHoldings at [290] and [297].
Accordingly, Mr Rutherford's invocation of the defence of qualified privilege (both at common law and pursuant to s 30 of the Defamation Act 2005) did not arise.[14] But his Honour considered those defences in any event. He found that, had it been necessary to rely on them, they would not have been sufficient to provide Mr Rutherford with a defence.[15]
[14] KingsfieldHoldings at [327].
[15] Kingsfield Holdings at [327] - [363].
It will be necessary to return to the question of qualified privilege in more detail below, with particular emphasis on the allegations relied upon by Mr Lee and Kingsfield in their Substituted Reply to the effect that Mr Rutherford was motivated by malice, which allegations were pleaded as negativing any qualified privilege that might otherwise arise.
Finally, his Honour found that even if, contrary to his findings, the Spoken Words had delivered reputational harm to Kingsfield or to Mr Lee, he would have awarded damages in the sum of $10 being an amount 'on the high side of a nominal award for each plaintiff, had that been required'.[16]
[16] KingsfieldHoldings at [436].
His Honour found that any hurt or distress suffered by Mr Lee and Kingsfield arose:
… not as a result of the Spoken Words uttered by Mr Rutherford just to Mr Duffield but from an overblown reaction to that event, after Mr Lee read and reacted to the [McGees Letter]'.[17]
[17] KingsfieldHoldings at [434].
In addition to finding that Mr Lee's reaction to the McGees letter was 'overblown', his Honour found Mr Lee was someone who has a 'propensity to see "daggers around every corner", and also to doggedly obsess over matters in the process losing a sense of proper proportion'.[18]
[18] KingsfieldHoldings at [187].
Unfortunately, those comments might reasonably be said to apply to these proceedings in which Mr Lee complains about certain actions and omissions or failures of the legal practitioners who acted for him in the defamation trial.
Mr Lee has made five complaints about each of the second, third and fourth respondents with the second respondent being the principal, and the third and fourth respondents being solicitors, of Bennett + Co.
Bennett + Co was engaged as solicitors for Mr Lee and Kingsfield in their proceedings against Mr Rutherford on and from 9 September 2015, merely two months prior to the commencement of the trial and approximately 21 months after the writs were filed in January 2013. As noted above, until that occurred, Mr Lee had effectively been acting for himself and Kingsfield, through his own law firm, Avedon Lee.
Mr Lee makes five complaints. It will be necessary to return to them in more detail but for present circumstances it is sufficient to note that:
•Three of them concern a Mr Henderson and his evidence;
•One of them concerns a subpoena issued against the Department of Health; and
•One of them concerns the failure to include in the Trial Bundle for the defamation actions the transcript of prosecution proceedings in the Magistrates Court against Abellio concerning food standards.
Each of the five grounds of complaint were dismissed by the first respondent, and Mr Lee seeks review of the dismissal in each case.
The Procedural History of the Complaints
Mr Lee initially complained to the first respondent on 16 September 2019.[19] The complaint form was filed under cover of a letter of five and a half pages, together with a USB containing ~750 pages of documents.[20]
[19] Respondent's Bundle, Document 2, pages 412.
[20] Respondent's Bundle, Document 3, pages 13759.
The initial complaint effectively made three complaints: (1) that Bennett + Co had, without instructions, filed 'the wrong' version of a summary of Mr Henderson's evidence; (2) that Bennett + Co had failed to provide proper advice to Mr Lee as to the calling of Mr Henderson; and (3) that Bennett + Co had failed to enforce a subpoena issued to the Department of Health.
By letter dated 28 February 2020 Ms Rorrison, Senior Legal Officer of the first respondent's Rapid Resolution Team (RRT), wrote to Mr Lee and, having referred to a telephone discussion on 25 February 2020, set out four grounds of complaint, being the three identified above, plus a complaint that the second, third and fourth respondents had refused to release a file note of a conversation with a Mr Whiddon, an officer of the Department of Health who Mr Lee thought had attended Quokka Joe's on 23 January 2012. [21]
[21] Respondent's Bundle, Document 7, pages 765766.
On 10 March 2020, following a phone call from Ms Rorrison, the second, third and fourth respondents wrote to her and provided information by way of a letter, the contents of which cross-referenced approximately 270 pages of documents also provided, which responded to the four complaints.[22]
[22] Respondent's Bundle, Documents 8 and 9, pages 7671037.
By letter dated 16 April 2020, Ms Rorrison wrote again to Mr Lee and, having addressed each of the four matters the subject of complaint, advised that she had 'not identified a further role for the RRT or conduct requiring investigation by the Committee' but provided for further discussion should Mr Lee wish to pursue it.[23]
[23] Respondent's Bundle, Document 12, pages 10431048.
On 20 May 2020 Mr Lee provided what he described as a further 'reply' and attachments, which addressed the first three complaints (the fourth the refusal to provide a file note having apparently been resolved) and asked that Ms Rorrison 'further consider' her 'view'.[24]
[24] Respondent's Bundle, Document 14, pages 10531095.
On 28 October 2020 Ms Rorrison wrote again to Mr Lee and addressed the further material provided. Despite finding that there was nothing in that additional material to warrant her to change her mind she advised that the complaint would be referred to the Law Complaints Officer for consideration.[25]
[25] Respondent's Bundle, Document 18, pages 11011105.
A further response from Mr Lee was made on 27 November 2020 which three days later was supplemented with a USB containing a considerable volume of further material another ~ 250 pages.[26] On 3 February 2021 the applicant wrote again to the first respondent attaching a copy of the reasons of Le Miere J in Ex parte Kingsfield.[27] It will also be necessary to return to this in due course.
[26] Respondent's Bundle, Documents 22 and 23, pages 11111360.
[27] Re Rules of the Supreme Court 1971(WA); Ex parte Kingsfield Holdings Pty Ltd [2021] WASC 16.
On 24 February 2021, following a telephone call from Ms Rorrison, Bennett + Co wrote to her and provided further documents regarding the applicant's 'instructions to call Mr Henderson as a witness at trial'.[28]
[28] Respondent's Bundle, Document 29, pages 13881426.
On 9 March 2021 Mr Daily, the Law Complaints Officer, wrote to Mr Lee and advised that, for the reasons set out in Ms Rorrisons' letters dated 7 April 2020 and 28 October 2020 as well as some further additional reasons, he considered that 'no further investigation is required' and dismissed the complaints 'under sections 415(1)(b) and 415(1)(3)[29] of the Legal Profession Act 2008 (LP Act)' (Decision). [30] Mr Daily also sent letters of the same date to the second, third and fourth defendants which advised that he had dismissed the complaints 'under section 415(3)' of the LP Act.[31]
[29] This appears to be a typographical error it should read s 415(3).
[30] Respondent's Bundle, pages 1-3.
[31] Respondent's Bundle, pages 1434-1436.
We note that the Law Complaints Officer expressed the Decision as his own, and signed the Decision letter in his own right, rather than on behalf of the first respondent, the Legal Profession Complaints Committee (LPCC).
As was noted in Chen:[32]
Under s 573 of the LP Act, the LPCC may delegate any power or duty of the LPCC to the Law Complaints Officer, other than the power of the LPCC under s 426 of the LP Act.
A decisionmaker exercising decision-making authority under a delegation should indicate that the decision is made in the exercise of that delegated authority. The Law Complaints Officer should thus have indicated, in the Decision, that he made the Decision as the delegate of the LPCC.
[32] Chen and Law Complaints Officer [2022] WASAT 26 (Chen) at [68] - [69].
As in Chen, the LPCC has since confirmed that Mr Daily made the Decision in the exercise of delegated authority. As such, it is necessary to amend the name of the first respondent to correctly identify the decisionmaker as the Law Complaints Officer as the delegate of the LPCC,[33] rather than the LPCC itself. We will therefore make an order correcting the name of the respondent to the Review Application.
[33] See also State Administrative Tribunal Act 2004 (WA) (SAT Act), s 36(5).
None of that affects the power of the Tribunal to review the Decision. Irrespective of whether a decision under s 415 of the LP Act is made by the LPCC, or by the Law Complaints Officer pursuant to a delegation, the Tribunal clearly has power to review such a decision, pursuant to s 435 of the LP Act.[34]
Legal framework and principles
[34] Chen at [71].
Section 410(1)(e) of the LP Act enables a complaint about an Australian legal practitioner to be made to the first respondent by 'any … person who has or had a direct personal interest in the matters alleged in the complaint'.
Section 415 of the LP Act provides for summary dismissal of a complaint. It is convenient to set out that section in full:
(1)The Complaints Committee may dismiss a complaint if —
(a)further details are not given, or the details of the complaint are not verified, as required by the Complaints Committee under section 412; or
(b)the complaint is vexatious, misconceived, frivolous or lacking in substance; or
(c)the conduct complained about is the subject of another complaint; or
(d)it is not in the public interest to deal with the complaint having regard to the fact that the name of the Australian legal practitioner to whom the complaint relates has already been removed from any Australian roll on which the practitioner was enrolled.
(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; or
(b)the conduct complained about has been the subject of a previous complaint that has been dismissed; or
(c)the complaint is not one that the Complaints Committee has power to deal with.
(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.
It will be noted that, in this case, Ms Rorrison had carried out an initial investigation and referred the complaints to Mr Daily, who dismissed the complaints 'under s 415(1)(b)' and advised that 'no further investigation is required'.
Section 421(2) of the LP Act provides that the first respondent must investigate each complaint made to it but s 421(3)(b) provides that s 421(2) does not apply to a 'complaint that is dismissed or withdrawn under this Part'. It will be necessary to return to this section below.
Section 424(1) of the LP Act provides that, after an investigation is completed, the first respondent must take one of the following three actions:
a.dismiss the complaint under s 425 of the LP Act;
b.take action under s 426 of the LP Act; or
c.refer the matter to the Tribunal under s 428 of the LP Act.
None of those three options was taken because of the summary dismissal of the complaints but it is useful to consider those options for reasons which will become apparent.
Section 425 of the LP Act empowers the first respondent to dismiss a complaint if, amongst other things there is no reasonable likelihood that the practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct.
If it does not dismiss a complaint under s 425 of the LP Act, s 426 of the LP Act empowers the LPCC to take summary action of various kinds in relation to the complaint.
Section 428 of the LP Act states as follows:
(1)If the Complaints Committee determines that a matter should be heard by the State Administrative Tribunal the Committee may refer the matter to the Tribunal.
(2)The Complaints Committee is not limited under subsection (1) by the terms of any complaint it has received or by the subject matter of any investigation it has conducted and is not required to conduct an investigation before referring a matter to the State Administrative Tribunal.
Section 435 of the LP Act confers a right of review by the Tribunal on a person aggrieved by a decision of the first respondent to dismiss a complaint. Again, it is convenient to set out the section in (close to) full:
(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;
…
the person aggrieved cannot apply to the State Administrative Tribunal for a review of the decision without the leave of the Tribunal.
It can be seen, therefore, that both sections 415 and 425 provide for the dismissal of a complaint; s 415 allows for summary dismissal without the need for an investigation, while s 425 provides for dismissal '[a]fter an investigation of a complaint … is completed'. The reference in s 421(3)(b) to a complaint that is 'dismissed … under this Part' therefore appears to be limited to summary dismissal under s 415.
In this case, the complaints were dismissed 'under section 415(1)(b) and 415(3)'. That section allows for the dismissal of a complaint if it is 'vexatious, misconceived, frivolous or lacking in substance'.
As was noted in Chen:[35]
… somewhat curiously, there is a difference in the terms of s 435(2) of the LP Act and s 415(1)(b) of the LP Act. The former refers to the LPCC making a finding that a complaint is 'trivial, unreasonable, vexatious or frivolous'. In contrast, under s 415(1)(b), the LPCC may determine that a complaint is 'vexatious, misconceived, frivolous or lacking in substance'. Given the difference in the terms of those provisions, it is far from clear whether the bases for dismissal referred to in s 435(2), and which would trigger a requirement for the grant of leave to apply for a review, were intended to be co-extensive with the bases for summarily dismissing a complaint under s 415(1)(b). That is especially so given that a review under s 435 is not limited to those cases in which the LPCC (or the Law Complaints Officer, acting with delegated power) dismisses a complaint under s 415.
[35] Chen at [83].
In Chen, the complaint was dismissed by the Law Complaints Officer in words very similar to those used here 'I consider that no further investigation is required and so dismiss this complaint under sections 415(1)(b) and 415(3) of the [LP Act]'.[36] In that case the Tribunal held:
The Law Complaints Officer did not make a specific finding that the Complaint was either trivial, or unreasonable, or vexatious, or frivolous (to use the words in s 435(2)). The Law Complaints Officer simply dismissed the Complaint under s 415(1)(b) and s 415(3) of the LP Act. In so far as he decided that the Complaint should be dismissed under s 415(1)(b), the Law Complaints Officer did not make a specific finding that the Complaint was either 'vexatious' or 'misconceived' or 'frivolous' or 'lacking in substance'.[37]
[36] Chen at [65].
[37] Chen at [83].
With respect, we agree and adopt the same conclusion in this case. As a result, there is no requirement for the applicant to obtain leave in order to seek review of the Law Complaints Officer's decision.
However, a question then arises as to the nature of the Tribunal's functions in a case such as this an application for review of a decision which summarily dismisses a complaint but not in a manner which requires leave. That question was also addressed in Chen. Given the similarities between the two cases in this regard it is convenient to set out the Tribunal's reasons at [86] - [95] of Chen, which we respectfully adopt, in some detail (footnotes in the original):
Because s 435(1) of the LP Act expressly gives the Tribunal jurisdiction to review a decision of the LPCC to dismiss a complaint, an application of that kind comes within the Tribunal's review jurisdiction.[38]
[38] SAT Act, s 17(1); see also Lawson and Legal Profession Complaints Committee [2019] WASAT 36 at [31].
A review is to be dealt with in accordance with the enabling Act (in this case, the LP Act) and the State Administrative Tribunal Act 2004 (WA) (SAT Act), subject to any modification of the operation of the SAT Act by the enabling Act.[39]
[39] SAT Act, s 18.
The nature of review proceedings is described in s 27 of the SAT Act, which provides:
(1)The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3)The reasons for decision provided by the decision-maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
The phrase 'hearing de novo' as it pertains to the Tribunal's review jurisdiction under the SAT Act involves a fresh hearing, whereby the Tribunal may set aside the decision the subject of the review, regardless of any demonstrated error on the part of the original decisionmaker. The Tribunal is required to make its own decision, on the evidence before it, which includes all the evidence before the decisionmaker, and any additional evidence put before the Tribunal on the review. Given that the Tribunal is conducting a hearing de novo, no party bears any legal or practical onus of proof.[40] In other words, [the applicant] does not bear any onus to show that a departure from the Decision is justified. As s 27(2) makes clear, the question for the Tribunal is simply what is the correct and preferable decision, having regard to all of the material before it at the date of the review.
[40] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331; (2018) 12 ARLR 135 at [121] and [128], (Buss P, Murphy and Mitchell JJA) citing Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2018] WASCA 32 at [61].
On the review, the Tribunal has functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision.[41] The Tribunal may affirm or vary the decision being reviewed. It may also set aside the decision and substitute its own decision or send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate.[42]
[41] SAT Act, s 29(1).
[42] SAT Act, s 29(3).
On a review under s 435, the Tribunal stands in the shoes of the LPCC (or Law Complaints Officer, acting with the delegated authority of the LPCC, as the case may be). In this case, the Decision was, in substance, that the Complaint should be summarily dismissed under s 415 of the LP Act. At the point in time when the Decision was made, the Complaint had been received from [the applicant], and had been referred to the RRT where it was treated as an enquiry, with a view to ascertaining whether the Complaint raised an issue concerning the conduct of a practitioner which required investigation.[43] However, some preliminary investigations were clearly conducted: the legal officer at the RRT requested that [the applicant] provide details of the Complaint,[44] and [the practitioner] was advised of the Complaint, and provided documents in relation to the Complaint.[45] Having undertaken those preliminary investigations, the legal officer at the RRT advised [the applicant] that [the applicant's complaint] did 'not enliven any conduct issues' and that 'no conduct issue … requires investigation'.[46] In other words, he concluded that there was nothing to suggest that [the practitioner's] conduct warranted further investigation to determine whether disciplinary action was required on the ground that he had engaged in either unsatisfactory professional conduct or professional misconduct. The Complaint was then referred to the Law Complaints Officer to determine what action should be taken in relation to the Complaint.
[43] (Footnote omitted).
[44] See LP Act, s 412.
[45] See LP Act, s 413.
[46] (Footnote omitted).
The functions of the LPCC at such an early stage in the consideration of a complaint, and prior to the completion of an investigation of a complaint, are as follows:
(a)the LPCC may summarily dismiss the complaint if any of the circumstances described in s 415(1) of the LP Act apply, that is:
•if a complainant does not verify the details of a complaint as requested by the LPCC;
•if the complaint is vexatious, misconceived, frivolous or lacking in substance;
•if the conduct complained of is the subject of another complaint; or
•if it is not in the public interest to deal with the complaint because the practitioner's name has already been removed from the roll of practitioners;
(b)the LPCC must summarily dismiss the complaint if the circumstances in s 415(2) apply, that is:
•if the complaint is made more than 6 years after the alleged conduct;
•if the conduct was the subject of a previous complaint that was dismissed; or
•the complaint is not one that the LPCC has power to deal with;
(c)the LPCC may summarily dismiss the complaint, pursuant to s 415(3), without completing an investigation, if, having considered the complaint, the LPCC forms the view that the complaint requires no further investigation; or
(d)otherwise, the LPCC must proceed to complete an investigation into the complaint, pursuant to s 421(2) (subject to s 421(3) of the LP Act).
In the present case, the role of the Tribunal, standing in the shoes of the Law Complaints Officer, is to determine which of those courses of action constitutes the correct and preferable decision.
This is not a case in which s 415(1)(a), s 415(1)(c), s 415(1)(d) or s 415(2) of the LP Act applies. That is because this was not a case in which [the applicant] failed to provide further details of the Complaint upon request by the LPCC. This is not a case in which the conduct complained about is the subject of another complaint, or which was the subject of another complaint which was dismissed. The Complaint is not one in which the conduct complained of occurred more than six years prior to the Complaint being made. And the Complaint is not one which, at least on its face, is outside the scope of complaints with which the LPCC is empowered to deal.
That being the case, the questions for the Tribunal are:
(a)whether the information contained in the Complaint, and the evidence obtained thus far in the investigation, warrant the completion of the investigation of the Complaint;[47] or
(b)whether the Complaint is vexatious, misconceived, frivolous or lacking in substance, and should be dismissed;[48] or
(c)whether the Complaint requires no further investigation, and should be dismissed.[49]
[47] LP Act, s 421(2).
[48] LP Act, s 415(1)(b).
[49] LP Act, s 415(3).
In Chen, the Tribunal considered that the question whether the completion of the investigation was warranted should be addressed by considering two matters.
First, whether the information in the complaint made by the applicant, and the evidence obtained to that point in the investigation, gives rise to a reasonable cause to suspect that the practitioner has been guilty of unsatisfactory professional conduct, or professional misconduct.
Secondly, whether further investigation is likely to uncover additional evidence which may alter the conclusion as to whether there is reasonable cause to suspect that the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.
It is therefore necessary to detail the definitions of the terms 'unsatisfactory professional conduct' and 'professional misconduct' both of which are non-exhaustively defined in s 402 and s 403 of the LP Act respectively as follows:[50]
[50] Original emphasis.
For the purposes of this Act —
unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
professional misconduct includes —
(a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(2)For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.
Finally, in this regard it is critical to note that our function is limited to reviewing the Decision only.
As noted above, the Decision considers Mr Lee's complaint against the second to fourth respondents on five grounds. Our role is to review the decision of the first respondent in dismissing the complaint on those five grounds. We cannot consider any other complaint.
As has been said by the Tribunal many times, the Tribunal's function does not, and cannot, extend beyond the review of the complaint considered and determined by the first respondent.[51]
[51] Quinlivan and Legal Profession Complaints Committee [2012] WASAT 98 at 25 and [27] [28]; SJX and Legal Profession Complaints Committee [2012] WASAT 154 at [17]; DeAbreu and Legal Profession Complaints Committee [2022] WASAT 42 at [66].
In the present case Mr Lee filed with the Tribunal a document titled 'Applicant's Background and Submissions' dated 21 September 2021 (Applicant's Submissions) which raises several matters not the subject of the Complaint.[52]
[52] See, for example, Applicant's Submissions, page 30, paras 161 and 168.
Amongst other things, he submits that the 'correct and preferable decision is that the Tribunal should find that the practitioners were grossly negligent in dealing with [his] matters.[53] Allegations of gross negligence were also made in previous correspondence to the first respondent.[54]
[53] Applicant's Submissions, page 30, para 161.
[54] See, for example, Respondent's Bundle, page 1121, paras 35, 37 and 39 and page 1124, para 71.
Ms Rorrison advised Mr Lee more than once that such a finding was beyond the scope of the first respondent.[55] That advice was and is correct and the absence of a decision on that matter by the first respondent is the reason why such a finding is also beyond the scope of our review of the Decision.
The 'Conspiracy'
[55] See, for example, Respondent's Bundle, pages 1045 and 1104.
Before turning to the relevant grounds and the evidence, it is useful to understand the apparent perspective of Mr Lee as it informs the nature of his several complaints.
As noted above, on 3 February 2021 Mr Lee provided to the first respondent a copy of the reasons in Ex parte Kingsfield.[56]
[56] Re Rules of the Supreme Court 1971 (WA); Ex parte Kingsfield Holdings Pty Ltd [2021] WASC 16.
That decision did no more than allow Kingsfield and Mr Lee to file a writ by which those parties, as the proposed plaintiffs, allege that they commenced the defamation actions against Mr Rutherford in reliance upon certain misrepresentations made by or on behalf of some of the proposed defendants.
Leave was required to file the writ because the orders sought includes the setting aside of both the consent orders by which the proceedings against Sullivan Commercial were dismissed as well as the orders made by Kenneth Martin J setting aside the claims against Mr Rutherford.
In his reasons granting leave, Le Miere J said as follows:
[13]… The alleged misrepresentations are that Mr Rutherford spoke the Spoken Words to Mr Duffield, and that communication was the source of the Closure Information in the [McGees] … (the Misrepresentations).
[14]The applicants allege that Mr Rutherford did not speak the Spoken Words to Mr Duffield and that the Closure Information was provided to Mr Duffield by the fifth defendant, Mr Amaranti, the Chief Executive Officer of the [RIA]. The applicants allege that the Misrepresentations were made in furtherance of a conspiracy between the proposed defendants with the common design:
(1)to represent to Kingsfield and Mr Lee that Mr Rutherford conveyed the Closure Information to Sullivan Commercial, and not to disclose the involvement of the Department of Health and Mr Amaranti in the communications leading to the 31 January 2012 letter, so that Mr Amaranti and the Department would not be at risk of being sued for defamation and from other action that might be taken by Kingsfield and Mr Lee;
(2)for the sole or predominant purpose of causing detriment to Kingsfield and Mr Lee; and
(3)with the intention of injuring Kingsfield and Mr Lee.
(the Common Design)
The alleged conspiracy set out above, in one form or another,[57] appears from our review of the evidence to have been the view of Mr Lee for some time and appears to be at the heart of his concerns concerning Mr Henderson's evidence and the subpoena issued to the Department of Health.
[57] The allegation that Mr Amaranti was the source of the Spoken Words appears to be a reasonably recent development. Previously Mr Lee appears to have believed that Mr Whiddon was the source.
It is Mr Lee's view that there were three Health Department inspectors present at Quokka Joe's Café on 23 January 2012, one of whom was a Mr Whiddon. Mr Whiddon did not give evidence at the defamation trial. However, he had been the subject of a subpoena and, through that, had spoken with solicitors at Bennett + Co, both directly and through the State Solicitors Office (SSO) who were acting on the subpoena for the Department of Health.
Mr Whiddon advised Bennett + Co that 23 January 2012 was his first day as an officer of the Department of Health and that he spent that day in its offices in Shenton Park carrying out basic administrative tasks. He said that for that reason he did not attend Rottnest Island in his capacity as an inspector of the Department of Health on 23 January 2012 and, in fact, did not attend Rottnest in that capacity for at least six months thereafter.
Mr Lee was, and appears to remain, firmly of the view that Mr Whiddon attended Quokka Joe's Café on 23 January 2012 and that he spoke with Mr Whiddon on that day.
Mr Lee is of the view that Mr Whiddon was the ultimate source of the information as to the inspection and subsequent closure of Quokka Joe's Café.
Mr Lee's view that Mr Henderson was not the source of the Disclosure Information is, in his view, supported by what Mr Henderson told him in two telephone conversations that occurred on 18 August 2014 and 1 September 2015.[58]
[58] Respondent's Bundle, page 110.
Those conversations, and/or the notes taken of those conversations by Mr Lee, appear to have provided the basis for a document titled 'Mr David Henderson - Summary of Substance of Evidence' dated 23 October 2015 (Henderson Original Summary). That document, critically, stated at paragraph 9 that Mr Henderson 'will give evidence that he did not inform Mr Ivan Rutherford words to the effect that Quokka Joe's Café had been closed following a health inspection'.[59]
[59] Respondent's Bundle, pages 114-115.
A subsequent version of that document titled 'Mr David Henderson - Summary of Substance of Evidence (Amended)' was filed on 10 November 2015 (Henderson's Amended Summary). That document provided as follows:[60]
[60] Respondent's Bundle, pages 111113.
(a)paragraph 9 was amended to read: 'Mr Henderson will give evidence that he did not inform Mr Ivan Rutherford words to the effect that Quokka Joes café had been closed
followingbecause of a health inspection'; and(b)Additional paragraphs 1016 were added as follows:
10After the two inspectors left the Rottnest Café, Ms Henderson told Mr Henderson words to the effect that:
10.1at some point during the inspection, [of the Rottnest Café] the inspectors told her that they were actually looking for Quokka Joes and had turned up at the café by mistake; and
10.2 Ms Henderson told them where Quokka Joes was and they left.
11Quokka Joes was open that day, a Monday.
12 In the mid-afternoon, Mr Henderson noticed Quokka Joes had closed its doors and there were people inside who appeared to be cleaning.
13Quokka Joe's was closed the next day (Tuesday).
14Mr Rutherford attended the Rottnest Café and Rottnest Bakery on the Tuesday.
15. Mr Henderson discussed Quokka Joes with Mr Rutherford. During the conversation, Mr Henderson:
15.1told Mr Rutherford what Ms Henderson had told him (Mr Henderson), as set out at paragraph 10, above;
15.2 said that Quokka Joes appeared to have closed mid-afternoon on Monday and was closed again on Tuesday; and
15.3in jest, said that Quokka Joes was closed for cleaning.
In his evidenceinchief during the trial, the second respondent asked Mr Henderson to explain the reason for the change in the summary of his evidence.
In reply, Mr Henderson said, effectively, that he had been tricked into taking the August phone call by Mr Lee and that he had (falsely) denied to Mr Lee his involvement in speaking the Spoken Words to Mr Rutherford because he was angry at being tricked.
He said that Mr Lee's partner had made contact with Ms Henderson and enquired whether the Hendersons might be interested in buying Quokka Joe's Café. He said his wife had then called Mr Lee's partner and, after a 'brief conversation' was told that Mr Lee wanted to speak to him. He said that he assumed Mr Lee wanted to 'talk business'. However, Mr Henderson said that Mr Lee:
immediately asked me about the situation with the Health Department and Ivan Rutherford. And my initial reaction was like if anybody is going to bully or attack you I just defended myself and said, "Don't know anything about it, mate." Didn't say a word, you know, because I was really I was really annoyed at the time that I had been bounced into talking with the guy in the first place. I thought it was really devious what they did, and how they tried to get hold of me. The second time he phoned me up I told him in good Scottish vernacular to get lost. I didn't want anything to do with him at all and I thought he was being stupid and childish. So there were two conversations I had with him.[61]
[61] Respondent's Bundle, pages 466-467, being ts 173-174, 12 November 2015.
It is now convenient to address the grounds of complaint. For convenience grounds one, two and five are addressed consecutively as they all concern Mr Henderson's evidence.
Ground One
By Ground One, Mr Lee complains that the second to fourth respondents acted without his instructions in filing the Henderson Amended Summary with the Court on 10 November 2015.
It is necessary to provide some more context to understand this ground.
On 2 October 2015 the second respondent emailed Mr Lee regarding the filing of a Substituted Reply, a copy of which had been drafted and was provided to Mr Lee as an enclosure.[62]
[62] Respondent's Bundle, pages 805.
In that email the second respondent expressed concern with clause 5.4 of the draft Substituted Reply, which alleged that Mr Rutherford had said the Spoken Words to Mr Duffield for a collateral purpose, 'namely to avoid revealing that a representative of the Department of Health [i.e. Mr Whiddon] disclosed to [Mr Rutherford] the inspection of Quokka Joe's Café and the results of that inspection.'
Specifically, the second respondent said:
Although we were ordered to file our substituted replies by today I was tied up in Court all morning and intend to write to the other parties tonight saying that the matter will be dealt with on Monday. I enclose a draft of the substituted reply for you (sic) information and instructions. The reply attached is in CIV 1106 of 2013, I have not attached the reply in CIV 1147 of 2013 as it is analogous.
The area that causes me most concern is the drafting in relation to the Health Department (clause 5.4). It seems to me that this slides off the point – if Rutherford was trying to cover up for the Health Department, why would he tell McGees anything? The very act of telling McGees prompts the relevant enquiry as to who told Rutherford. I am concerned that it will appear to the Judge to be illogical and undermine what is, on balance, a relatively weak case for malice even putting together all of the points. Given that we put in issue that he made enquiry with any person (the reckless indifference as to the truth of the allegation plea) it will be relevant for Henderson's evidence to be adduced at that point. This is where I think we stand the greatest prospect of getting the Whiddon issue out into Court namely the failure to make enquiry. I get to crossexamine Rutherford on who actually told him what and put to him the Henderson denial.
This is an issue I would need you to think carefully about. My preference would be to delete clause 5.4 and rely on getting it under clause 5.1.
By email in reply on 5 October 2015, Mr Lee said that he agreed with the approach proposed by the second respondent. That is, clause 5.4 should be deleted. He said so despite insisting that the 'source of the defamatory matter' was Mr Whiddon and not Mr Henderson.[63]
[63] Respondent's Bundle, page 805.
A day later Mr Lee raised questions as to whether further enquiries should be made to demonstrate that Mr Whiddon was present on Rottnest on 23 January 2012.[64] In response, the third respondent emailed the applicant on 8 October 2015 (with a copy to the second respondent) and advised that:
As … Mr Rutherford admits the publication … [i.e. telling Mr Duffield the Spoken Words] the source of Mr Rutherford's information (whether it be Mr Henderson, the Health Department or otherwise) is irrelevant and an inquiry into the source of the information, such as through the cross-examination of Mr Rutherford, is not likely to be tolerated by the Trial Judge.
However, in response to Mr Rutherford's qualified privilege defences, your Substituted Replies plead that Mr Rutherford made the publication with reckless indifference to its truth and that he was in a position to but did not verify the contents of the publication through inquiry with any other person. This will allow [the second respondent] to cross-examine Mr Rutherford with respect to why the publication was made, what Mr Henderson told him and put to him Mr Henderson's denial on this point.[65]
[64] Respondent's Bundle, page 807.
[65] Respondent's Bundle, page 825.
On 20 October 2015, the third respondent emailed Mr Lee with copies of seven draft summaries of evidence, including that of Mr Henderson and Mr Lee. On the following day, Mr Lee replied by email saying, relevantly, 'Henderson and Chen statements are ok'.[66] On 23 October 2015 the Henderson Original Summary was filed with the Court in accordance with Mr Lee's instructions.[67]
[66] Respondent's Bundle, page 840.
[67] Respondent's Bundle, pages 114115.
On 9 November 2015, 9.48 am, the fourth respondent spoke by telephone with Mr Henderson, who described what had happened in terms that are reflected in the Henderson Amended Summary; in effect that he was the source of the information provided to Mr Rutherford.
That telephone conversation was recorded by the fourth respondent in both a handwritten file note[68] and an email to the second and third respondents sent the same day at 11.06 am.[69]
[68] Respondent's Bundle, page 955.
[69] Respondent's Bundle, pages 9798.
The fourth respondent then spoke with Mr Lee (on the same day, 9 November 2015) at 3.35 pm which he recorded in a typed Telephone Attendance Memo.[70] That document records that the fourth respondent told Mr Lee that Mr Henderson had advised that he was the source of the information to Mr Rutherford but that Mr Lee 'did not accept this'.
[70] Respondent's Bundle, page 99.
On the following morning, Tuesday 10 November 2015 at 2.26 am (that is not a typographical error) Mr Lee sent an email[71] which said as follows:
Hi Alex
I have no problem with my evidence
However with respect to Henderson please note that we were not closed that day
Henderson says we were closed in his statement and noticed cleaning going on
That is false.
Ms Henderson evidence is hearsay. It should not be in the statement
Regards
Jeff Lee
[71] Respondent's Bundle, page 100.
However, approximately nine hours later, at 11.20 am on 10 November 2015, the fourth respondent had a further telephone attendance with Mr Lee which he again recorded in a handwritten file note,[72] which records the following exchange:
AT: Henderson ok to f&s s/ment?
JL: Yes just concerned about hearsay, utility
AT: hearsay shows H just passed it on to R, tells the story. R relying on 3rd hand info.
…[73]
[72] Respondent's Bundle, page 961.
[73] AT is Alex Tharby, the fourth respondent. JL is Jeffrey Lee, the applicant.
The fourth respondent then emailed the third respondent and advised her that Mr Lee '[c]onfirmed he's ok for us to file and serve Henderson's statement despite his comments'.[74]
[74] Respondent's Bundle, page 102.
That is what then happened. On 10 November 2015 at 2.58 pm the fourth respondent emailed his Honour's Associate with a copy of the Henderson Amended Summary, which was then filed by a clerk at 3.27 pm.[75]
[75] Respondent's Bundle, pages 103104.
By his initial complaint to the first respondent Mr Lee refers to the second to fourth respondents 'defence' to the complaint that he (Mr Lee) had provided instructions on 10 November 2015 for the filing of the Henderson Amended Summary and denies that that is what he did. Rather, Mr Lee says that on 10 November 2015 he instructed the filing of the Henderson Original Statement 'which [he had] obtained from Mr Henderson in two telephone conversations'.[76]
[76] Respondent's Bundle, page 7, para 5.
He goes on to say that the Henderson Original Statement had been previously filed on 23 October 2015 without his knowledge or consent[77] and that when he was contacted by the fourth respondent on 10 November 2015 he understood that Mr Henderson had changed his story but that 'if a statement was required as Bennett + Co appeared to be wanting then [what] I wanted was my Henderson statement (my telephone notes) to be filed …'.[78]
[77] Respondent's Bundle, page 8, para 7.
[78] Respondent's Bundle, page 8, para 8 (original emphasis).
That version of events is utterly inconsistent with the documentary evidence as set out above which shows that:
(a)Mr Lee was provided with a draft version of the Henderson Original Summary on 20 October 2015 and approved its filing the following day. It is therefore not true that the Henderson Original Summary had been filed without his knowledge or consent. Indeed, in his email of 20 May 2020 the applicant admits that he agreed to the 23 October 2015 filing of the Henderson Original Summary.[79]
(b)He was made aware of the change to Mr Henderson's evidence and, after initially resisting the change, agreed to the filing and serving of the Henderson Amended Summary despite his concerns as to hearsay and utility.
[79] Respondent's Bundle, page 1055, para 2.
There are four further matters which the second to fourth respondents say support the conclusion that Mr Lee provided instructions to file the Henderson Amended Summary, although each of them occurred after that filing took place.
The first is that the second to fourth respondents say that they met with Mr Lee and his partner, Ms Howard, at 4 pm on Tuesday 10 November 2015 (i.e less than two hours after the Henderson Amended Summary had been emailed to the Associate and less than half an hour after it had been filed), at which Mr Henderson's amended evidence was discussed.[80]
[80] Respondent's Bundle, page 771, para 30, although note that 10 November 2015 is incorrectly described as a Sunday.
In his letter of 20 May 2020 to the first respondent, Mr Lee denies that Ms Howard was present at that meeting and also doubts that the fourth respondent was present.[81] That assertion is repeated in the Applicant's Submissions.
[81] Respondent's Bundle, page 1058.
But the meeting did occur and Ms Howard and the fourth respondent were present. So much is recorded in a handwritten file note made by the third respondent.[82] That note records the discussion about Mr Henderson's evidence (which Mr Lee says did not occur at all)[83] as follows:
Henderson →saying it in jest + said it a week b4 the publ[icatio]n
[82] Respondent's Bundle, page 1414.
[83] Respondent's Bundle, contained in letter from Mr Lee to LPCC, page 184.
The reference to 'in jest' clearly references paragraph 15.3 of the Henderson Amended Summary. Again, the contemporaneous documentary evidence is inconsistent with Mr Lee's complaint.
The second matter is that the second respondent says that he spoke with Mr Lee on the morning of the trial and discussed the calling of Mr Henderson. He says that Mr Lee, although still of the view that Mr Henderson was lying, provided instructions to call him.[84] There is no written record of that meeting, the applicant denies that it occurred[85] and we therefore give it no weight, although in doing so we ought not to be understood as making a positive finding that the meeting did not occur.
[84] Respondent's Bundle, page 771, para 32.
[85] Respondent's Bundle, page 1059, para 21.
The third matter is that Mr Lee is said to have attended the trial, including during opening submissions, during which the second respondent, as counsel for Mr Lee and Kingfield, expressly identified that the Henderson Amended Summary had been filed and that Mr Henderson would give that evidence.
There is no doubt that in his opening submissions for Mr Lee and Kingsfield, the second respondent identified that an amended version of Mr Henderson's summary of evidence had been filed the previous day and that the amended version had Mr Henderson confirming that he was the source of the information and that it was said 'in jest' to Mr Rutherford.[86]
[86] Respondent's Bundle, pages 327328.
What is less clear is whether Mr Lee was present in court at that time. He was clearly present during parts of the trial; amongst other things, he gave evidence. Given his interest in, and indeed involvement in the proceedings, we think it likely that the applicant was present during the second respondent's opening but given the uncertainty in this regard we give the matter little weight.
Finally, the second respondent claims that during a break in the trial, being immediately after Mr Lee gave his evidence, the second respondent spoke with Mr Henderson and then Mr Lee to whom the second respondent 'relayed' that Mr Henderson had confirmed his evidence consistent with the Henderson Amended Summary. It is said that Mr Lee then confirmed his instructions that Mr Henderson be called.[87]
[87] Respondent's Bundle, pages 771 and 1388.
Again, there is no documentary evidence to support this and we therefore give it no weight, although, again, in doing so we ought not to be understood as making a positive finding that the meeting did not occur.
In our view it is not necessary to have regard to any of the three matters which the second to fourth respondents allege occurred on 11 November 2015 in order to determine the merits of the applicant's first ground of complaint.
In our view, the contemporaneous documentary evidence of 9 and 10 November 2015 provide a compelling answer to Mr Lee's complaint that the Henderson Amended Summary was filed without his instructions and on that basis we find there to be no reasonable cause to suspect that any of the second to fourth respondents have been guilty of unsatisfactory professional conduct or professional misconduct.
In our view the Complaint as to Ground One requires no further investigation and should be dismissed. In our view there is no realistic prospect that any further investigation would result in the discovery of any additional information or any new perspectives on existing material. In that regard we note that:
(a)The complaint was first raised by Mr Lee in his letter to Bennett + Co on 3 July 2019.[88]
(b)The response of 4 July 2019 clearly set out the chronology and provided copies of several of the documents referred to above. [89]
(c)The applicant's complaint to the first respondent of 16 September 2019 again set out the complaint which was comprehensively answered by the second to fourth respondents in the letter of 10 March 2020[90] and its attachments.[91]
(d)The applicant's subsequent responses[92] have not provided anything in the way of additional information. Rather, they amount to submissions by which the applicant seeks to disagree with the conclusions reached by Ms Rorrison.
[88] Respondent's Bundle, pages 6871.
[89] Respondent's Bundle, pages 278280.
[90] Respondent's Bundle, pages 767776.
[91] Respondent's Bundle, pages 7771037.
[92] Respondent's Bundle dated 20 May 2020, pages 10531095; Respondent's Bundle dated 27 November 2020, pages 1111-1125.
Accordingly, the complaint in respect of Ground One should be dismissed.
Ground Two
By Ground Two, Mr Lee complains that the second to fourth respondents failed to provide him with proper advice regarding the benefit of calling Mr Henderson to give evidence.
By their letter of 10 March 2020 the second to fourth respondents assert that the decision to call Mr Henderson, despite the fact that his evidence was inconsistent with that of Mr Lee, was made on the basis that the second respondent 'formed the view that there was forensic benefit' in doing so, which forensic benefit was described as follows:
[The second respondent] considered that Mr Henderson's version of events was plausible and there was a risk in calling him as a witness. However, Mr Henderson's statement that he made a 'wise crack'[93] to Mr Rutherford about the closure of Quokka Joe's undermined Mr Rutherford's qualified privilege defence the closure was not something seriously reported to Mr Rutherford that warranted Mr Rutherford's telling Mr Duffield. If Mr Henderson was found to be untruthful or mistaken this would have assisted Mr Lee's case. I considered this the likely result as Mr Lee and Ms Howard were each giving evidence to the contrary, plus the Department of Health report that did not require Quokka Joe's to close, against Mr Henderson's recollection. … [94]
[93] This appears to be a reference to the statement in the Henderson Amended Summary to the statement being made 'in jest'.
[94] Respondent's Bundle, page 771, para 31.
There is little documentary evidence to demonstrate conclusively that the forensic benefit described above was fulsomely provided to the applicant. In our view there is, however, sufficient evidence for us to form the view that the applicant was advised as to the benefits of calling Mr Henderson.
There would appear to be two occasions on which the topic of Mr Henderson's evidence was discussed with the applicant which were recorded in writing.
First, and as noted above, the fourth respondent had a telephone discussion with Mr Lee on 10 November 2015 at 11.20 am during which, in response to the applicant's concern about the draft Henderson Amended Summary's 'hearsay, utility', the fourth respondent advised that Mr Henderson's evidence would show that Mr Rutherford was 'relying on 3rd hand info'.
That appears to us to be a reference to the issue of qualified privilege which had been the subject of email advice on 2 October 2015 from the second respondent and 8 October 2015 from the third respondent. In the latter case it was explained that the truth as to the source of the information was irrelevant as Mr Rutherford had admitted saying to Mr Duffield the Spoken Words. In both cases, it was explained that the issue was whether or not Mr Rutherford had been recklessly indifferent to the truth. Such an allegation would be supported, it seems to us, by calling evidence that Mr Henderson's conversation with Mr Rutherford demonstrated that what was said was hearsay, which appears to be the point that was recorded in the fourth respondent's file note.
The same may be said for the conference held at 4 pm on that afternoon between Mr Lee and all of the second to fourth respondents and which was recorded by the third respondent in a file note. That file note records that Mr Henderson's evidence would be to the effect that his statement to Mr Rutherford about Quokka Joe's being closed for cleaning was a 'wise crack'. Again, in our view that ought to be viewed in the context of the advice previously provided about the applicant's substituted Replies to Mr Rutherford's defence of qualified privilege if Mr Henderson's statement was said in jest then Mr Rutherford was recklessly indifferent to its veracity.
In our view, while those two pieces of evidence are not unequivocal, they are consistent with the previous advice given as to the proposed attack on Mr Rutherford's defence of qualified privilege. We are also of the view that there is no reasonable cause to suspect that any of the second to fourth respondents have been guilty of professional misconduct or unsatisfactory profession conduct. They appear to have been frank and fulsome in their advice as to the limited role to be played by the question as to the source of the Spoken Words and the dangers associated with overplaying its significance. We are also of the view that further investigation is most unlikely to result in new evidence in this regard or new perspectives in relation to the existing evidence. Again, the issue has been comprehensively addressed by the parties in numerous exchanges.
For these reasons we are of the view that there would be no utility in further investigation and the complaint in respect of Ground Two should be dismissed.
Ground Five
By Ground Five Mr Lee complains that the second to fourth respondents failed to have Mr Henderson declared a hostile witness.[95]
[95] See, for example, the applicant's correspondence of 20 May 2020 and 27 November 2020: Respondent's Bundle, pages 1056 and 1116.
A hostile witness is one who manifests antipathy to the cause of the party calling him (and who cannot, therefore, ask the witness leading questions) such that the witness is 'unwilling … to tell the truth and the whole truth'.[96]
[96] J D Heydon, Cross on Evidence (10th ed, LexisNexis Butterworths) (Cross), 591 [17360].
In that way the hostile witness differs from an unfavourable witness, who is a witness who simply fails to come up to proof that is, one who fails to give the evidence that the party calling them expected to give.[97]
[97] Ibid.
The difference between the two results is how the witness can be managed by counsel. In short, an unfavourable witness cannot be impeached whereas a hostile witness can. There are several means of impeachment, the most common is by cross examination, including as to inconsistent statements which may be proved if denied.
But the rule against impeaching an unfavourable witness does not have the corollary effect that every part of the evidence given by a non-hostile witness must be relied upon. Put another way, there is no obligation to rely on each and every piece of evidence given by a witness that is not declared hostile.
One practical result of that rule is that a party may deliberately call evidence from two or more witnesses knowing (or, at least expecting) that in some part of their evidence they will contradict each other and that, in submissions, the party will ask the tribunal of fact to prefer one version over another.[98]
[98] Cross, 592 [17370].
That is precisely what the second respondent says he did in his explanation as to why he chose to call Mr Henderson and why he formed the view that there was a forensic advantage in doing so.[99] The trial transcript also shows that that was precisely the approach taken by the second respondent at the trial.[100]
[99] See, above, at paragraph [117]. Respondent's Bundle, page 771, para 29.
[100] ts 388-389, 20 November 2015; Respondent's Bundle, pages 681-682.
BENNETT, MR: And he took you to paragraph 3.2.1 in your Honour's interlocutory decision. You found the imputations there and dealt with that, and said they were different imputations. Then he said, "In here the particulars the particulars are pretty benign, except we got (c) wrong". Without sort of a measure that by getting the particulars wrong, that defensive justification would fail. It wasn't closed until 30 January and it didn't close on 23 January. But - - -
KENNETH MARTIN J: Well, Mr Henderson's evidence is that it did.
BENNETT, MR: Well, Henderson – sorry, Henderson comes from his fish and chip shop in Wundowie to give evidence on subpoena, and he says it's closed, that would involve your Honour disbelieving Mr Lee and Ms Howard. Not just Mr Lee, but Ms Howard came back after she finished at the laundry and she traded until normal closing hours. She was crossexamined on that. There is no submission made by my friend that her evidence is not to be accepted.
KENNETH MARTIN J: But there's an inconsistency between your witnesses on that.
BENNETT, MR: No, there isn't. Well, there's only Henderson.
KENNETH MARTIN J: Between Henderson – Henderson's - - -
BENNETT, MR: Henderson we had to call as - - -
KENNETH MARTIN J: He's your witness. You haven't declared him hostile.
BENNETT, MR: I understand that. Well, there's no basis, because he has not given a prior statement, so we deal with him in his evidence.
KENNETH MARTIN J: I'm just it's a wrinkle to be resolved factually, that's all.
Mr Lee relies upon that passage in the transcript to complain that the second respondent was unfamiliar with the history of the matter. He says that by saying that Mr Henderson had not given a 'prior [inconsistent] statement' the second respondent demonstrates his ignorance of the Henderson Original Summary'.[101]
[101] Applicant's email of 20 May 2020, Respondent's Bundle, pages 1056-1057.
But as noted above, the second respondent had, in fact, taken Mr Henderson in his evidenceinchief to his telephone discussions with Mr Lee in August 2014 and September 2015 during which he told Mr Lee that he had not been the source of information to Mr Rutherford. As set out above, Mr Henderson gave evidence to the effect that he denied to Mr Lee that he was the source of the information because he was annoyed at being tricked by him (Mr Lee) into taking the call and wanted nothing to do with Mr Lee's complaint against Mr Rutherford.[102]
[102] Respondent's Bundle, pages 466-467, being ts 173174, 12 November 2015.
That is, Mr Henderson's evidence was entirely consistent with the Henderson Amended Summary and he explained the basis on which that evidence departed from the Henderson Original Summary.
On that basis, there was no basis for Mr Henderson to be declared hostile and the statement by his Honour in the quoted passage of transcript to the second respondent that Mr Henderson was 'your witness. You haven't declared him hostile'[103] ought not to be understood as suggesting there was a basis for that to occur. That is clear from what follows, including that his Honour describes the difference in the evidence as a 'wrinkle to be resolved factually, that's all'.[104]
[103] ts 388-389, 20 November 2015; Respondent's Bundle, page 682.
[104] ts 388-389, 20 November 2015; Respondent's Bundle, page 682.
The decision of the first respondent of 9 March 2021 concluded in this regard by saying:
In light of the fact that Mr Henderson's evidence at trial was consistent with what he was expected to say and in accordance with the amended summary, there was no basis for [the second respondent] to make an application for Mr Henderson to be declared a hostile witness. … in my view, this aspect of your complaint is lacking in substance.[105]
[105] Respondent's Bundle, page 3.
We agree. Mr Henderson did exactly as he said he would. There was no basis to consider him unwilling to tell the truth. Mr Henderson's version of the truth differed from that of the applicant. But that does not make it wrong; it simply required his Honour, as the trier of fact, to determine the preferred version, if to do so was necessary to resolve the dispute before him.
Mr Lee's real complaint appears to be that Mr Henderson was called at all when it was known that he would give evidence contrary to that which he (Mr Lee) would give. But that is the subject of Grounds One and Two which we have addressed above.
For these reasons, in our view the ground is without substance and the complaint in respect of Ground Five should be dismissed.
Ground Three
By this ground, Mr Lee complains that the second to fourth respondents failed to enforce a subpoena against the Department of Health.[106]
[106] Respondent's Bundle, page 10.
The purpose of the subpoena was to demonstrate that Mr Whiddon had been present on Rottnest Island on 23 January 2012 and, therefore (so Mr Lee's argument goes) had been present at the inspection of Quokka Joe's and had been the source of the information about its closure.
At this point it is, again, worthwhile to note the advice provided to the applicant by the second respondent on 8 October 2015 that the ultimate source of the information was irrelevant to the claim.
Nonetheless, for the reasons that follow, we are satisfied that the second to fourth applicants did take all reasonable steps to enforce the subpoena.
The subpoena was issued to the Department of Health on or about 19 June 2015, three months prior to the engagement of Bennett + Co.[107]
[107] An undated copy of the subpoena is at Respondent's Bundle, pages 777-781. A letter from the State Solicitor's Office of 14 July 2015 states that the subpoena was issued on 10 June 2015: Respondent's Bundle, page 790. However, Ms Rorrison's letter of 16 April 2020 says that the subpoena was issued on 19 June 2015: Respondent's Bundle, page 1045. It is unnecessary to resolve the difference.
It sought production of '[a]ll Documents, including computer records and hard drives … containing the names of the health inspectors who were on Rottnest Island on 23 January 2012 ... and … the location and duties of Mr Scott Whiddon on 23 January 2012'.[108]
[108] Respondent's Bundle, page 781.
On 2 July 2015, there was an exchange between a consultant engaged by Mr Lee and the SSO, acting for the Department, by which it was made clear that the Department would produce all relevant documents but would not produce physical computers or hard drives.[109]
[109] Respondent's Bundle, pages 782-784.
Documents were produced to the Court on or about 3 July 2015.[110] They included some emails sent by Mr Whiddon on 23 January 2012.[111]
[110] Ms Rorrison's letter of 16 April 2020: Respondent's Bundle, page 1046.
[111] Respondent's Bundle, pages 783784.
On 21 July 2015 the SSO wrote to Mr Lee advising that the Department considered that it had complied with the subpoena.[112]
[112] Respondent's Bundle, pages 791792.
Nothing further appears to have occurred until 5 October 2015 (noting that Bennet + Co were not engaged until 9 September 2015). As noted above, on 5 October 2015 there was an email exchange between Mr Lee and Bennett + Co regarding the draft Substituted Reply. On 6 October 2015 Mr Lee sent a lengthy email to the second respondent regarding the source of the information.[113]
[113] Respondent's Bundle, page 807.
That email was responded to directly on 8 October 2015.[114] In addition, on 7 October 2015, the third respondent sent the applicant two draft letters to the SSO for his approval. Only one of those letters appears to have been provided to the Tribunal. It was sent 9 October 2015 and in it, the second respondent sought:
production of the metadata … on an urgent basis and by the latest next Wednesday, 14 October 2015, failing which I am instructed to write to the Court and have this matter listed for a directions hearing.[115]
[114] Respondent's Bundle, page 810.
[115] Respondent's Bundle, pages 834835.
On 26 October 2015, Mr Lee wrote and asked 'what is happening with respect to the health dept subpoena'[116] to which the third respondent advised that nothing had been heard from the SSO, that Bennett + Co would 'follow up this week' and that there was a directions hearing listed for 3 November 2015 and that '[i]f necessary, the metadata issue can be drawn to the attention of the Court then'.[117]
[116] Respondent's Bundle, page 845.
[117] Respondent's Bundle, page 845.
That is what happened. A letter was sent to the SSO on 27 October 2015 which both sought a response to the previous correspondence and noted the forthcoming directions hearing as the time at which orders would be sought for production of the metadata should that not have already occurred.[118]
[118] Respondent's Bundle, page 849.
There was then a further exchange of letters from the SSO dated 28 October 2015[119] and from Bennett + Co dated 29 October 2015[120] after which the second respondent spoke to Mr Nicholas Van Hattem of the SSO who advised, amongst other things, that there were significant practical difficulties in recovering the relevant metadata. That was then passed on to Mr Lee together with advice that:
We are concerned that given, on the pleadings, Mr Whitton's (sic) location is only of peripheral relevance, his Honour may not be receptive to orders seeking production of metadata and that the SSO will argue that its production is oppressive.[121]
[119] Respondent's Bundle, page 854.
[120] Respondent's Bundle, page 863.
[121] Respondent's Bundle, page 865.
On Monday 2 November 2015 the second respondent emailed Mr Van Hattem and advised of Mr Lee's instructions to seek orders for the production of the metadata by 5 November 2015.[122]
[122] Respondent's Bundle, pages 867 and 870.
Further conferral occurred on 2 November 2015 between Mr Van Hattem and the second and third respondents.[123] The substance of that conferral was provided to Mr Lee by email sent 2 November 2015 at 6.43 pm.[124] The following morning at 8.16 am, Mr Lee replied by email saying that:
In my view they should provide all electronic records relating to the subpoena
However this may not be Martin's view
I agree to follow Martin's course …[125]
[123] Respondent's Bundle, pages 874-875.
[124] Respondent's Bundle, page 878.
[125] Respondent's Bundle, page 899.
At the directions hearing held on 3 November 2015, his Honour refused to make the orders sought by the second respondent on behalf of Mr Lee and Kingsfield in relation to the metadata.
In so refusing, his Honour said that he was 'heavily driven by the fact that the trial is next week.'[126]
[126] Respondent's Bundle, page 757.
He also described the issue at the heart of the request for metadata whether Mr Whiddon was present or otherwise on Rottnest Island on 23 January 2012 and whether that might undermine Mr Rutherford's evidence that Mr Henderson was the source of his information about Quokka Joe's closure as a 'highly collateral potential issue' which did not 'warrant the expense, time, effort, energy and commitment associated with the line of inquiry that's been promulgated'. [127]
[127] Respondent's Bundle, page 757.
In short, the request for orders mandating production of the metadata was refused for three combined reasons: the issue being pursued was 'highly collateral'; the production would be expensive, and highly consuming of time, effort, energy and commitment; and the start of the trial was imminent.
As such, it is incorrect for Mr Lee to say, as he does in his initial complaint, that the 'Court was of the view that Bennett + Co failed to enforce the subpoena on time and therefore the Court did not order it to be enforced'.[128]
[128] Respondent's Bundle, page 10.
It is possible that, had the second to fourth respondents acted on the threat in their letter of 9 October 2015 to seek a directions hearing upon the Department's failure to produce the data on or before 14 October 2015, that the Court may have heard the application before 3 November 2015.
However, realistically, an earlier directions hearing is unlikely to have been held before 21 October 2015 8 working days prior to 3 November 2015. In our view there is nothing to suggest that his Honour might have come to a different decision; each of the three reasons relied upon by his Honour would have been present, including the imminent commencement of the trial. An extra two weeks would have made no difference in circumstances where the costs of compliance were so high for a matter of such little relevance to the issues before the Court.
In any event, should it be useful or necessary to do so, we find that any delay by the second to fourth respondents in this regard was justified given the highly collateral nature of the issue (which had been the substance of advice given on 29 October) and the need to focus on other, more relevant matters, in the lead up to a trial listed only eight or so weeks after being engaged.
In this regard it is worth noting that the third respondent advised Mr Lee of the result by email dated 3 November 2015 and that his Honour had found the issue 'highly collateral' and in doing so noted the finding that the burden on the Department would have been disproportionate to any benefit to the applicant.[129]
[129] Respondent's Bundle, pages 926-927.
It is true that that email did not mention the proximity of the trial date as a reason for refusal but in our view nothing turns on that because, as noted above, the proximity of the trial does not amount to a finding that there had been delay.
It is also worth noting that no complaint was made by Mr Lee that the result was due to Bennett + Co's delay until July 2019, despite the applicant stating that he became 'aware in 2017'.[130]
[130] Respondent's Bundle, page 10.
But irrespective of those matters, we agree with the finding of the first respondent that the second to fourth respondents 'took proper steps to act on [the applicant's] instructions … and there is no evidence that [they] failed to act in this regard.'[131]
[131] Letter from Ms Rorrison to the applicant 16 April 2020; Respondent's Bundle, page 1047. Also, Letter from Ms Rorrison to the applicant 28 October 2020, Respondent's Bundle, page 1104.
For these reasons we are of the view that there is no reasonable cause to suspect that any of the second to fourth respondents have been guilty of professional misconduct or unsatisfactory professional conduct. We are also of the view that it is unnecessary for there to be any further investigation, which is most unlikely to expose any additional factual material or any different perspectives on the factual material already known. Again, the complaint and the basis for it, as well as the position of the second to fourth respondents, were all comprehensively set out in multiple exchanges with each other and the first respondent. Nothing more is likely to arise from further investigation. The complaint in respect of this ground should be dismissed.
Ground Four
By this ground, Mr Lee complains that the practitioners did not include in the trial bundle for the defamation proceedings a copy of Magistrates' Court transcripts of a prosecution of Abellio Pty Ltd for offences under the Food Standards Code, which offences were alleged to have occurred on 22 August 2013.
The first respondent found, in its letter of 9 March 2021 that in respect of this ground the complaint is lacking in substance. We agree. In circumstances where the offences were committed by Abellio Pty Ltd approximately 18 months after Mr Rutherford said the Spoken Words to Mr Duffield, we are unable to see what possible relevance those offences could have had to the question whether the Spoken Words were defamatory or, if they were, whether Mr Rutherford might have a defence.
Mr Lee says that the transcripts go 'directly to the defence of Rutherford that he was acting in accordance with Abellio's lease when he allegedly told Duffield that [Quokka Joe's] was closed following a health inspection'.[132] We disagree. Even if it could be said that the cleanliness of Abellio's premises at the time Mr Rutherford said the Spoken Words was relevant to that defence (and we find it difficult to see how that might be the case) in our view there can be no proper basis to say that its cleanliness 18 months after they were spoken could be relevant.
[132]Applicant's letter to Ms Rorrison of 27 November 2020; Respondent's Bundle, page 1121.
The ground lacks substance and the complaint in respect of it should be dismissed.
Orders
For the reasons set out above, each of the five grounds of the application for review should be dismissed and the decision of the first respondent affirmed.
The name of the first respondent should be amended to the Law Complaints Officer as the delegate of the Legal Profession Complaints Committee.
We will hear from the parties as to the need for any ancillary orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
RM
Associate to Deputy President Judge Jackson
23 JUNE 2022
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