Lee and Legal Profession Complaints Committee
[2019] WASAT 5
•13 FEBRUARY 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: LEE and LEGAL PROFESSION COMPLAINTS COMMITTEE [2019] WASAT 5
MEMBER: DEPUTY PRESIDENT, JUDGE PARRY
MR M SPILLANE (SENIOR MEMBER)
MS M CONNOR (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 13 FEBRUARY 2019
FILE NO/S: VR 41 of 2018
BETWEEN: JEFFREY STEWART LEE
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
RICHARD LANCELOT HOOKER
Second Respondent
Catchwords:
Legal practitioners Review of decision of Legal Profession Complaints Committee to dismiss complaint of former client about practitioner on the basis that it is in the public interest to do so Practitioner failed to settle and provide statement of claim and failed to respond to instructing solicitor Health condition affecting practitioner Practitioner no longer practising Insight into health condition and remorse in relation to failures Isolated incident No disciplinary history Whether it is in the public interest to dismiss complaint
Legislation:
Commercial Tenancy (Retail Shops) Agreements Act 1984 (WA), s 16(1)
Legal Profession Act 2008 (WA), s 402, s 403, s 410, s 425, s 425(b), s 435(1), s 435(1)(a), s 586(1), s 401(a), s 428(1), Pt 13
State Administrative Tribunal Act 2004 (WA), s 3(1), s 17(1), s 24, s 27, s 32(2)(a), s 32(4), s 60(2), s 160
Result:
Decision of first respondent to dismiss complaint by applicant about second respondent affirmed
Summary of Tribunal's decision:
Mr Jeffrey Lee sought review by the Tribunal of the decision of the Legal Profession Complaints Committee to dismiss Mr Lee's complaint about Mr Richard Hooker, a legal practitioner. The complaint related to Mr Hooker's failure to settle and provide a statement of claim in Supreme Court proceedings and failure to respond to his instructing solicitor's enquiries.
The Tribunal determined, on the evidence before it, that it is in the public interest to dismiss the complaint, because:
the practitioner's failures to settle and provide the statement of claim and to respond to his instructing solicitor's enquiries were a manifestation of, and attributable to, a serious (and, at the time, undiagnosed) illness;
the practitioner ceased to practise as a barrister around the time of the conduct the subject of the complaint and the Committee provided a report on the conduct to the Legal Practice Board (to be taken into account if and when the practitioner applies to renew his practising certificate) and thus the protection of the consumers of legal services and the public generally does not require the imposition of a disciplinary outcome;
the practitioner demonstrated insight in relation to his illness and remorse in relation to his conduct the subject of the complaint;
the practitioner's failures involved an isolated incident which is appropriately to be viewed in the public interest in the context of a substantial period of professional practice with no disciplinary history; and
the practitioner's failures did not have any significant or material consequence, principally because of the instructing solicitor's appropriate and timely conduct.
The decision of the Committee to dismiss the complaint was therefore affirmed.
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| First Respondent | : | Mr S Merrick |
| Second Respondent | : | N/A |
Solicitors:
| Applicant | : | N/A |
| First Respondent | : | Law Complaints Officer |
| Second Respondent | : | N/A |
Case(s) referred to in decision(s):
Greenwood and Legal Profession Complaints Committee [2010] WASAT 31; (2010) 70 SR (WA) 144
Lee and Legal Profession Complaints Committee [2018] WASAT 91
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mr Jeffrey Lee (applicant) seeks review, under s 435(1)(a) of the Legal Profession Act 2008 (WA) (LP Act), of the decision of the Legal Profession Complaints Committee (Committee) to dismiss a complaint made by the applicant about Mr Richard Hooker (practitioner) under s 410 of the LP Act (complaint). Section 410 of the LP Act enables a complaint to be made to the Committee about an Australian legal practitioner by any person who has or had a direct personal interest in the matters alleged in the complaint. The complaint concerns the practitioner's failure to complete legal work on which he was instructed, in particular to settle and provide a statement of claim, and failure to respond to his instructing solicitor's enquiries, in relation to Supreme Court proceedings in which the applicant was a plaintiff and the director and sole shareholder of the other plaintiff. The Committee dismissed the complaint, under s 425(b) of the LP Act, because it was satisfied that it is in the public interest to do so.
The Tribunal directed that the matter is to be determined entirely on the documents pursuant to 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 applicant's application to the Tribunal filed on 26 March 2018 (including attachment documents), the Committee's bundle of documents filed on 7 May 2018 pursuant to s 24 of the SAT Act,[1] the applicant's bundle of documents (not included in the Committee's bundle of documents) filed on 25 May 2018, an affidavit of the applicant sworn on 12 June 2018 and filed on 15 June 2018 (originally in support of an interim application) and written submissions filed by the applicant on 22 October 2018 and by the Committee on 14 November 2018.
Factual background
[1] This includes (at pages 93-97) an affidavit of John Gaetano Mario Fiocco sworn on 23 January 2017 in Supreme Court proceedings CIV 2660 of 2015 in support of an application for a further extension of time in which to file and serve a statement of claim, which is relied on by the applicant.
The background facts, including the practitioner's failure to complete legal work on which he was instructed, in particular to settle and provide a statement of claim, and failure to respond to his instructing solicitor, are not in dispute.
The applicant is the second plaintiff and the director and sole shareholder of the first plaintiff in Supreme Court of Western Australia proceedings CIV 2660 of 2015 (Supreme Court proceedings). The Supreme Court proceedings concern the applicant's retail business on Rottnest Island and involve allegations by him of misfeasance and misleading or deceptive conduct against the Rottnest Island Authority, the State of Western Australia and two public servants. The Supreme Court proceedings were commenced on 19 October 2015 by way of a writ of summons with a general indorsement of claim. The plaintiffs were represented by Mr John Fiocco at Slater and Gordon (firm) who engaged the practitioner initially to advise on the proposed causes of action and to settle the indorsement of claim in the writ of summons.
The writ of summons was served on the defendants in September 2016. On 25 October 2016, a status conference was held in the Supreme Court proceedings and orders were made requiring the plaintiffs to file and serve a statement of claim by 6 December 2016 and adjourning the matter to a further status conference on 13 December 2016.
On 29 November 2016, five weeks after the first status conference in the Supreme Court proceedings and a week before the statement of claim was required to be filed, Mr Fiocco provided a brief to the practitioner which included a draft statement of claim to be settled by him (brief). Later that day, the practitioner informed Mr Fiocco that he was involved in a Federal Court matter, but would look at the brief in the 'next say 30 hours'.[2] On 5 December 2016, the practitioner advised Mr Fiocco that he had been 'working on' the draft statement of claim and enquired whether an extension for the filing and service of the statement of claim until 9 December 2016 could be agreed with the defendants' solicitor.[3] The defendants' solicitor subsequently agreed to an extension of time for the filing and service of the statement of claim until 9 December 2016.
[2] Affidavit of John Gaetano Mario Fiocco sworn on 23 January 2017 at [8] (Legal Profession Complaints Committee section 24 bundle of documents page 95).
[3] Affidavit of John Gaetano Mario Fiocco sworn on 23 January 2017 at [9] (Legal Profession Complaints Committee section 24 bundle of documents page 95).
On 8 December 2016, the practitioner confirmed to Mr Fiocco that 'settling the [statement of claim] is the priority'.[4] That afternoon, the practitioner had a conference with the applicant and Mr Fiocco at the practitioner's chambers and it was confirmed with the practitioner (as he already knew) that the statement of claim was required to be filed and served by 9 December 2016, that is on the next day. At the conclusion of the conference, it was understood by both the applicant and Mr Fiocco that the practitioner would have the settled statement of claim available for filing and service on the defendants by 9 December 2016, in accordance with the Court's order as extended by agreement with the defendants' solicitor.
[4] Affidavit of John Gaetano Mario Fiocco sworn on 23 January 2017 at [10] (Legal Profession Complaints Committee section 24 bundle of documents page 95).
On 9 December 2016, Mr Fiocco made a number of attempts to contact the practitioner by telephone, email and text to confirm that the statement of claim would be available to be filed and served that day. However, the practitioner did not provide the statement of claim for filing and service on 9 December 2016 (or subsequently) and did not respond to Mr Fiocco's messages.
At the second status conference in the Supreme Court proceedings, which took place on 13 December 2016, Mr Fiocco informed Registrar Dixon and the solicitor for the defendants of the practitioner's failure to settle and provide the statement of claim and Mr Fiocco sought, and obtained by consent, an order further extending the period for the filing and service of the statement of claim until 23 December 2016. The matter was adjourned to a further status conference on 24 January 2017.
On 13 December 2016, Mr Fiocco sent the following letter by hand delivery to the practitioner at his chambers:[5]
[5] Legal Profession Complaints Committee section 24 bundle of documents page 97.
13 December 2016
Mr Richard Hooker
John Toohey Chambers
Level 3
27 29 St Georges Terrace
PERTH WA 6000
Dear Richard
CIV 2660 of 2015 : Kingsfield Holdings Pty Ltd & Lee v Rottnest Island Authority & Ors
I refer to your instructions in relation to the above-mentioned Supreme Court action.
As you would recall, the Statement of Claim was due to be filed and served on 6 December 2016, pursuant to an Order of Registrar Dixon.
As the Statement of Claim was not filed as ordered and I was not able to make any contact with you prior to the Status Conference held on 13 December 2016, the Plaintiffs were granted an order for an extension for the filing and serving of the Statement of Claim until 23 December 2016. Although the Plaintiffs were in default, costs were ordered in the cause.
I shall be pleased if you could urgently advise me as to when I can expect to receive a settled draft of the Statement of Claim for the Plaintiffs' consideration, as the Plaintiffs are anxious to see a draft before it is filed and served.
Yours sincerely
John Fiocco
Special Counsel
SLATER AND GORDONThe practitioner did not respond to Mr Fiocco's letter. The practitioner also did not respond to any of Mr Fiocco's further attempts to contact him by telephone, email and text, between 13 December 2016 and 22 December 2016, advising the practitioner again of the further extended date for the filing and service of the statement of claim. This included a telephone message on 15 December 2016 left with the receptionist at the practitioner's chambers indicating that Slater and Gordon needed to speak with the practitioner urgently.
Furthermore, on 22 December 2016, the applicant's partner, Ms Susan Howard, hand delivered the following letter from the applicant to the practitioner at the practitioner's chambers:[6]
[6] Legal Profession Complaints Committee section 24 bundle of documents page 130.
Mr Richard Hooker 22 December 2016
Barrister
John Toohey Chambers
Perth WA BY HAND BY MS S HOWARD
Dear Richard,
Re Rottnest Island Authority, Statement of Claim (SOC)
I refer to the above.
I understand this is probably a very busy time of the year for you both professionally and personally.
However, both myself and my partner Ms Susan Howard are very concerned about the progress in this matter with respect to the Statement of Claim.
As you are probably aware, the Court has granted us an extension of time to file the SOC which expires as I understand it tomorrow.
This follows a previous extension of time granted by the Court which we obviously did not comply with.
In our view this casts a damaging light on our case considering this serious complaint revolves around affidavits filed approximately seven years ago. The writ which [sic] was issued about 1 year ago.
We are also concerned our claim may be struck out by the Court[.]
I understood that [sic] at our last meeting that we would have a draft from you the following day.
Would you kindly let me know if you need assistance in finalising the draft.
I can meet with you today or tomorrow to assist.
If there is another issue restricting you from addressing the SOC can you please let me know.
We need to look at the draft SOC briefly before it can be filed and served.
Would you kindly let me know your position.
I can also be contacted on mobile telephone number […].
I have copied this letter to Mr John Fiocco.
Regards
Jeff Lee
As the practitioner had not made any contact with Mr Fiocco or the applicant, on 5 January 2017, Mr Fiocco emailed Mr Michael Rynne, head of the practitioner's chambers, referring to the circumstances set out earlier and requesting his assistance. In the email, Mr Fiocco said that the applicant was 'deeply concerned that the action faces an application for dismissal once the Judicial year commences in earnest' and that he (Mr Fiocco) was 'professionally embarrassed by the course of the events'.[7] Mr Rynne responded to Mr Fiocco that he had spoken with the practitioner on 23 December 2016 and that the practitioner had indicated that he was going to contact Mr Fiocco.
[7] Legal Profession Complaints Committee section 24 bundle of documents page 179.
On 23 January 2017, Mr Fiocco swore an affidavit in support of an application for a further extension of time in which to file and serve the statement of claim. In the affidavit, Mr Fiocco said that 'no communication has been received or contact made by [the practitioner]'[8] and that, in the circumstances, 'I am instructed that the brief should be withdrawn from [the practitioner] and another barrister briefed with respect to the settling of the Statement of Claim and advising on the action generally'. Mr Fiocco also said that '[t]his will involve a period of at least 4-6 weeks, given the logistics of retrieving the brief and providing instructions to another barrister'.[9]
[8] Affidavit of John Gaetano Mario Fiocco sworn on 23 January 2017 at [19] (Legal Profession Complaints Committee section 24 bundle of documents page 96).
[9] Affidavit of John Gaetano Mario Fiocco sworn on 23 January 2017 at [20] (Legal Profession Complaints Committee section 24 bundle of documents page 96).
At the third status conference in the Supreme Court proceedings, which took place on 24 January 2017, Registrar Dixon granted the plaintiffs' application for a further extension of time in which to file and serve their statement of claim. Registrar Dixon ordered that the statement of claim was to be filed by 7 March 2017 and adjourned the matter to a status conference on 14 March 2017. Registrar Dixon also ordered the plaintiffs to pay the defendants' costs of the status conference fixed in the sum of $480 by 7 February 2017.
Mr Fiocco subsequently left the firm and the matter was transferred to another solicitor. On 20 February 2017, the firm engaged Mr Tim Coyle as replacement counsel in the Supreme Court proceedings to settle the statement of claim and attend the next status conference.
It appears that the status conference listed for 14 March 2017 was adjourned to a status conference on 18 April 2017. Mr Coyle appeared on behalf of the plaintiffs at that status conference. Registrar Dixon made a springing order that unless the plaintiffs file and serve a statement of claim by 25 April 2017, 'the action be dismissed with costs to the defendants to be taxed, if not agreed'. Registrar Dixon also ordered the plaintiffs to pay the defendants' costs of the status conference in the sum of $485 by 8 May 2017.
It appears that Mr Coyle had settled and provided the statement of claim to the firm prior to the status conference which took place on 18 April 2017, although the statement of claim had not been filed and served prior to the status conference. The statement of claim was filed and served on the defendants on 24 April 2017. On 15 May 2017, the defendants filed a defence in the Supreme Court proceedings.
The Supreme Court proceedings were ongoing at the time when the Committee dismissed the applicant's complaint about the practitioner in February 2018. There is no evidence before the Tribunal in relation to what occurred subsequently in the Supreme Court proceedings. However, in his submissions in support filed on 22 October 2018, the applicant states that the Supreme Court proceedings were 'currently before the Supreme Court' as at the date of the submissions.[10]
Applicant's complaint about the practitioner
[10] Applicant's submissions in support filed on 22 October 2018 at [19].
As indicated earlier, on 10 February 2017, the applicant made a complaint to the Committee about the practitioner under s 410 of the LP Act. The complaint was made in the form of a three page letter. After referring to the factual background to the complaint, the applicant said the following:[11]
…
In my opinion Mr Hooker's behaviour, known to the Defendants may have cast a damaging light on my case given the serious nature of the claim and it also has cost and will cost a significant amount of time and money in now having to brief another Counsel. However briefing another Counsel has proved difficult considering the time that has elapsed and the reliance on Mr Hooker's opinion on the viability of the causes of action Counsel so a statement of claim can be filed and served.
There is also a risk that the action itself could be struck out in the event that suitable Counsel cannot be obtained and a statement of claim prepared by 7 March 2017[.]
The purpose of this letter is to make a formal complaint about Mr Hooker's conduct in this matter and ask that the Committee investigate the behaviour of Mr Hooker.
[11] Legal Profession Complaints Committee section 24 bundle of documents page 10.
There was further correspondence between the applicant and the Committee in relation to the complaint during 2017. In our view, the senior legal officer of the Committee correctly characterised the scope of the applicant's complaint about the practitioner in a letter to the applicant on 12 October 2017 as follows:[12]
The complaint is being investigated on the basis of your allegations that the practitioner engaged in unsatisfactory professional conduct or professional misconduct by:
2.1.a lack of professional courtesy;
2.2.a delay in responding to requests from your instructing solicitor in circumstances where court imposed time lines had not or could not be complied with in time; and
2.3failing to complete work on which he was instructed, causing further delay.
[12] Legal Profession Complaints Committee section 24 bundle of documents page 101.
The terms 'unsatisfactory professional conduct' and 'professional misconduct' are defined in s 402 and s 403 of the LP Act, respectively, in each case inclusively, as follows:
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.
(1)For the purposes of this Act
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.
Practitioner's response to complaint
On 3 May 2017, the practitioner sent the Committee a letter by email in which he responded to the applicant's complaint about him. The practitioner's letter includes the following:[13]
[13] Legal Profession Complaints Committee section 24 bundle of documents pages 21-22.
… I sincerely apologise not only for my professional failings to complete work as briefed and as undertaken to do to my instructors, but to you and the Committee for my lack of response and communication until now.
I have been confronting, and attempting to deal with, serious ill health since early December 2016. These health issues have severely impacted on my ability to work as a barrister. Initially, and particularly over the course of the traditionally quiet December/January period, I sought to manage my health myself by taking a number of steps to improve my wellbeing. By March of this year it became clear that those steps had been wholly ineffective. I then sought medical treatment, and have been continuing to manage my health with specialist medical treatment since that time. I believe my health has begun to improve, however I do not currently hold any active briefs and do not intend to accept any instructions until at least my health undergoes substantial improvement.
My ill health has manifested itself, among other things, in an inability to deal with issues as they arise and a tendency to postpone matters in the (obviously unrealistic) hope that they will go away. I am sad to say that your letters and telephone contact, as well as Mr Lee's brief, are prescient examples of the state of my health. It has only been with medical help, and the support of my family, that I am now in a position to start to deal with my professional situation.
I deeply regret the impact my health has had on Mr Lee and Slater and Gordon, something I stressed to them in writing when I returned the brief earlier this month and, in doing so, took the opportunity to apologise.
I would also point out that in almost 20 years practising as a barrister, this is the first complaint ever made about me, to my knowledge, to the LPCC or any other other [sic] body. I therefore hope you will consider this matter in the context of it being entirely out of character with how I conduct myself as a barrister.
I am also hopeful that you will appreciate how difficult such matters are to explain and to discuss. Nonetheless, I am available to elaborate should it be necessary to do so. I can also provide medical evidence if required. I am not in Chambers at the moment, and hence it is best to contact me me [sic] on my mobile […].
I thank you in anticipation for your patience and understanding. I would be grateful if you could pass on my apologies to any member of the LPCC that this matter has inconvenienced.
Yours sincerely
Richard Hooker
Committee's decision
On 28 February 2018, the Committee advised the applicant that his complaint about the practitioner had been considered by the Committee at a recent meeting. The Committee's letter then states as follows:[14]
After careful consideration of the matter the Committee resolved:
a)To dismiss the complaint pursuant to section 425(b) of the Legal Profession Act 2008, (the Act) because the Committee was satisfied that it is in the public interest to do so.
b)To provide a report on the conduct the subject of this memorandum to the Legal Practice Board pursuant to section 586(1) of the Act.
[14] Legal Profession Complaints Committee section 24 bundle of documents page 1.
The letter then sets out a statement of the Committee's reasons for its decision to dismiss the applicant's complaint. The first 18 paragraphs of the reasons refer to the factual background to the complaint. At [19], the Committee's reasons refer to the applicant's allegation that:[15]
… the practitioner's failure to complete the work on which he was instructed, failure to respond to his instructing solicitor and failure to provide any explanation for his conduct has damaged the [p]laintiffs' position in the [Supreme Court] proceedings and contributed to an adverse outcome in the [Supreme Court] proceedings.
The reasons then state that:[16]
However, the complainant did not provide any evidence to substantiate this allegation and the Committee noted that the Statement of Claim was ultimately filed in accordance with the orders made at the April status conference and the proceedings are still continuing.
[15] Legal Profession Complaints Committee section 24 bundle of documents page 3.
[16] Legal Profession Complaints Committee section 24 bundle of documents pages 3-4.
We note that there is also no evidence before the Tribunal to support a finding that the practitioner's failure to complete the work on which he was briefed, in particular, the practitioner's failure to settle and provide the statement of claim, and his failure to respond to his instructing solicitor and provide an explanation for his conduct, in any way damaged the plaintiffs' position in the Supreme Court proceedings.
The Committee's reasons state at [21] that the applicant 'also alleges that the practitioner's failure to return his copy of the Brief to the [f]irm prejudiced his position in the proceedings'.[17] However, the Committee said that the applicant 'was unable to identify any documents contained in the Brief that were not also held at all material times by the [f]irm as the instructing solicitors' and that 'the [f]irm, as the instructing solicitors who had conduct of the matter, at all times, retained a copy of the Brief'.[18]
[17] Legal Profession Complaints Committee section 24 bundle of documents page 4.
[18] Legal Profession Complaints Committee section 24 bundle of documents page 4.
We note that the applicant has not provided any further evidence to the Tribunal in relation to this aspect. There is no reason, on the evidence before the Tribunal, as to why the firm could not have provided a substitute brief to Mr Coyle when he was first instructed to settle and provide the statement of claim in February 2017.
The Committee's reasons note at [22] that the applicant also alleges that the practitioner's conduct:[19]
… caused him to incur significant additional costs and sought reimbursement of the costs orders made at the January and April status conferences, of an invoice issued by the practitioner in October 2015 (for work completed prior to him being briefed to settle the Statement of Claim) and a contribution from the practitioner towards the fees subsequently paid by the complainant to the replacement counsel.
The Committee said that, while the applicant paid fees to Mr Coyle:[20]
… that may not have been otherwise payable had the practitioner settled the Statement of Claim in December 2016, he had not otherwise been charged by the practitioner for any time spent on the Statement of Claim or in respect of the proceedings since 2015.
[19] Legal Profession Complaints Committee section 24 bundle of documents page 4.
[20] Legal Profession Complaints Committee section 24 bundle of documents page 4.
At [24], the Committee referred to medical evidence that it had received 'to the effect that the practitioner has, from the latter part of 2016, suffered from an ongoing health condition' and said that the 'practitioner's health deteriorated significantly in the period from December 2016'.[21] The Committee said at [25] of its reasons that the practitioner had not practised law since December 2016 'due to the health condition' and that he had not applied to renew his practising certificate.[22]
[21] Legal Profession Complaints Committee section 24 bundle of documents page 4.
[22] Legal Profession Complaints Committee section 24 bundle of documents page 4.
The Committee determined at [27] of its reasons as follows:[23]
On the face of it, there was a failure by the practitioner to complete the work on which he was instructed and a failure to respond to the many attempts by his instructing solicitors to contact him.
[23] Legal Profession Complaints Committee section 24 bundle of documents page 5.
The Committee's reasons for dismissing the complaint under s 425(b) of the LP Act are set out at [32] of its statement of reasons as follows:[24]
[24] Legal Profession Complaints Committee section 24 bundle of documents pages 6-7.
The primary concern of the Committee is to ensure, as far as possible, the protection of the public in terms of the provision of legal services. In the present circumstances, having regard to this primary concern, the Committee was satisfied that it was in the public interest to dismiss the complaint, because:
32.1The Committee's primary concern of the protection of the public is currently achieved through the practitioner not practising. The practitioner has not applied to renew his practising certificate.
32.2The Committee intends to provide a report to the Legal Practice Board in relation to the investigation of this complaint in accordance with section 586 of the Act which will be considered in the event of any future application by the practitioner to renew his practising certificate.
32.3The conduct under investigation, whilst concerning, took place over a narrow time frame and in circumstances where the complainant's instructing solicitor maintained conduct of the proceedings.
32.4The conduct appears to be an isolated incident and one in which the practitioner's health condition clearly affected his ability to carry out satisfactorily the inherent requirements of legal practice. The practitioner has provided medical evidence that he suffers from a health condition which caused him to be unable to attend to his professional tasks that he had previously (and over a significant period) attended to. The practitioner has practised as an independent barrister for over 20 years and has no disciplinary history.
32.5The practitioner has shown insight into his behaviour, acknowledging his failure to complete the work on which he was instructed and his failure to respond to his instructor. The practitioner appears to understand the significance and consequences of his conduct and has shown remorse and apologised for his conduct. The practitioner has not returned to practice.
32.6The practitioner has acknowledged his health condition and has sought and continues to seek medical treatment for his health condition. The Committee considered that there was a clear nexus between the practitioner's conduct and his health condition. Based on the information available, there is also some concern that pursuing the complaint may exacerbate the practitioner's health condition.
32.7The conduct under investigation does not involve any allegations of dishonesty, misleading conduct or abuse of power and there is no reasonable likelihood of a finding of professional misconduct in respect of the practitioner's conduct. The Committee considered that, in the absence of the Committee obtaining further evidence, including independent evidence as identified above, it is problematic as to whether there is a reasonable likelihood of a finding of unsatisfactory professional conduct. Having regard to the nature of the allegations and the particular circumstances, the Committee considered it would not be a proper and efficient use of the Committee's resources to pursue the matter in this way and that the most appropriate manner of dealing with the matter in the public interest (particularly given the health issues involved) was to concentrate on any fitness to practice ramifications. The Committee considered that its resolutions would achieve this.
Legal framework and principles
Section 425 of the LP Act states as follows:
After an investigation of a complaint against an Australian legal practitioner is completed, the Complaints Committee may dismiss the complaint if satisfied that
(a)there is no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct; or
(b)it is in the public interest to do so.
Section 435(1) of the LP Act confers a right of review to the Tribunal of the dismissal of the complaint under s 425 of the LP Act in the following terms:
Subject to subsection (2), a person aggrieved by
(a)a decision of the Complaints Committee to dismiss a complaint; …
may apply to the State Administrative Tribunal for a review of the decision.
Section 17(1) of the SAT Act states as follows:
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.
As the matter that the enabling Act in this case, namely s 435(1)(a) of the LP Act, gives the Tribunal jurisdiction to deal with expressly involves the review of a decision, this matter comes within the review jurisdiction of the Tribunal under s 17(1) of the SAT Act. Section 27 of the SAT Act provides as follows in relation to review proceedings in the Tribunal:
(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.
As the Court of Appeal (Buss P and Murphy and Mitchell JJA) observed and held in Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331 at [121]:
… Section 27(1) of the SAT Act required that the Tribunal's review of that decision be by way of a hearing de novo. In the context of the SAT Act, the phrase 'hearing de novo' bears its ordinary meaning recently described in Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [[2018] WASCA 32 at [61]]:
An appeal by way of hearing de novo involves a fresh hearing, and the appellate body may overturn the decision appealed from regardless of error. It is an exercise of original, not appellate, jurisdiction. Where the statutory provision indicates that the appellate body is required to 'make such order as it thinks fit', this is an indication that the appellate body's powers are not constrained by the need to identify error on the part of the decision-maker, but, rather, it is obliged to give its own decision on the evidence before it.
Thus, the Tribunal's function on review is to consider the applicant's complaint about the practitioner afresh and to make the correct and preferable decision at the time of the decision upon review on the evidence before the Tribunal (whether or not that material was before the Committee or existed at the time of the Committee's decision). In particular, the Tribunal must determine on the evidence before it whether it is satisfied that it is in the public interest to dismiss the complaint.
Finally, we note that as this matter comes within the review jurisdiction of the Tribunal, no party bears any legal or practical onus of proof.[25] In particular, the applicant does not bear any onus to show that a departure from the Committee's decision to dismiss the complaint is justified.[26] Rather, the Tribunal must conduct a de novo consideration of the complaint and determine the correct and preferable decision at the time of the decision upon the review.
Is it in the public interest to dismiss the applicant's complaint about the practitioner?
[25] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331 at [124] (Buss P and Murphy and Mitchell JJA).
[26] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331 at [128] (Buss P and Murphy and Mitchell JJA).
At [32.7] of its reasons, the Committee said that 'there is no reasonable likelihood of a finding [by the Tribunal, on referral of the matter to the Tribunal under s 428(1) of the LP Act,] of professional misconduct in respect of the practitioner's conduct' and that 'it is problematic as to whether there is a reasonable likelihood of a finding [by the Tribunal on referral] of unsatisfactory professional conduct'. We set out the statutory definitions of the terms 'professional misconduct' and 'unsatisfactory professional misconduct' at [22] above. The meaning of the expression 'reasonable likelihood' in s 425 of the LP Act was discussed by the Tribunal in Greenwood and Legal Profession Complaints Committee [2010] WASAT 31; (2010) 70 SR (WA) 144 at [27]-[29] as follows:
27The meaning of the phrase 'reasonable likelihood' in the context of s 425 of the LP Act is synonymous with the phrase 'reasonably likely'. The meaning of that phrase was discussed in Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 at [842] (Marks J, Young CJ and Teague J agreeing) in the following passage:
The relevant expression here is 'reasonably likely' which has some analogy to 'fair probability'. It suggests the mathematical approach; the word 'reasonably' being a qualification of 'likely', alternatively, a measure in colloquial language of the likelihood.
The expression 'reasonably likely' is substantially idiomatic, its meaning not necessarily unlocked by close dissection. In its ordinary use, it speaks of a chance of an event occurring or not occurring which is real – not fanciful or remote. It does not refer to a chance which is more likely than not to occur, that is, one which is 'odds on' or where between nil and certainty it should be placed. A chance which in common parlance is described as 'reasonable' is one that is 'fair', 'sufficient' or 'worth noting'.
28Those observations are equally apt to describe the meaning of 'reasonable likelihood' in s 425 of the LP Act.
29In considering whether there is a reasonable likelihood that a practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct, it is also necessary to bear in mind the Tribunal's approach to the proof of matters referred to it under s 428(1) of the LP Act. It is well recognised that the consequences for a practitioner of an adverse determination are such that clear and cogent evidence will be required before a finding of unsatisfactory professional conduct or professional misconduct is made: Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42 at [63]. That follows from the fact that although the standard of proof is on the balance of probabilities, nevertheless the Tribunal must feel an 'actual persuasion' of the occurrence or existence of a relevant fact in determining whether or not conduct of that kind has been made out: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 362 (Dixon J).
We agree with the Committee that there is no reasonable likelihood of a finding by the Tribunal, on referral of the matter under s 428(1) of the LP Act, that the practitioner's conduct in failing to settle and provide the statement of claim and failing to respond to his instructing solicitor rises to the level of 'professional misconduct'. We disagree with the Committee that 'it is problematic as to whether there is a reasonable likelihood of a finding of unsatisfactory professional conduct'. On the background facts of this matter set out earlier, there would be a real and not fanciful or remote chance of a finding of unsatisfactory professional conduct on the basis that the practitioner's conduct, which occurred 'in connection with the practice of law[,…] 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'.[27]
[27] Section 402 of the LP Act.
However, we are satisfied on the evidence before the Tribunal that it is in the public interest to dismiss the applicant's complaint about the practitioner and that (as the Committee said at [32.7] of its reasons) 'it would not be a proper and efficient use of the Committee's resources to pursue the matter', for the following reasons.
Firstly, and significantly, we are satisfied on the evidence that the practitioner's failure to settle and provide the statement of claim and to respond to his instructing solicitor during the period December 2016 to February 2017 was a manifestation of, and attributable to, a serious illness which materially affected his ability to satisfactorily carry out the requirements of legal practice. As indicated earlier, in his response to the complaint, the practitioner referred to 'serious ill health since early December 2016' which 'severely impacted on my ability to work as a barrister' and which 'manifested itself, among other things, in an inability to deal with issues as they arise and a tendency to postpone matters in the (obviously unrealistic) hope that they will go away'.[28]
[28] Legal Profession Complaints Committee section 24 bundle of documents page 21.
Furthermore, the practitioner provided a medical report by a treating doctor to the Committee and the Committee included the report in 'Part B: Confidential Material' within its bundle of documents filed pursuant to s 24 of the SAT Act in this proceeding. On an interim application brought by Mr Lee for the production to him of the medical report in Part B of the section 24 bundle, Justice Curthoys determined in Lee and Legal Profession Complaints Committee [2018] WASAT 91 at [30][34] as follows:[29]
30The doctor's reports are relevant to the practitioner's health. However they are 'protected documents' in that they contain personal information in relation to the practitioner's health. The Tribunal cannot grant access to a protected matter.
31Mr Lee's submissions do not disclose any basis to establish any public interest in the disclosure of those reports.
32Dixon v Legal Practice Board of Western Australia [2012] WASC 79 is not an authority for the proposition that a practitioner's medical reports should be released in the public interest. In fact, the public interest in this case is directly to the contrary. The public interest is served by practitioners being able to make frank and complete disclosure to the Board without fear of their medical reports being available to anyone other than the Board and the Tribunal.
33The disclosure of the doctor's reports to Mr Lee would not be in the public interest.
34Mr Lee's interim application should be dismissed.
[29] The reference to 'doctor's reports' (in the plural) in Lee and Legal Profession Complaints Committee [2018] WASAT 91 at [30], [31] and [33] is incorrect. There is only one doctor's report in Part B of the section 24 bundle.
Section 160 of the SAT Act states as follows:
(1)The Tribunal is to ensure that matter provided to the Tribunal that the Tribunal considers to be protected matter is returned to the person by whom it was provided when no longer required by the Tribunal.
(2)The Tribunal is to ensure that matter provided to the Tribunal that the Tribunal considers to be protected matter is not disclosed in any way other than to
(a)a sitting member of the Tribunal; or
(b)a person to whom disclosure is allowed under subsection (3).
(3)The Tribunal, with the consent of the President, may allow a party, or a representative of a party, to have access to information, or inspect a document, to which a certificate under section 159(2) applies on any conditions the Tribunal thinks fit except that a person cannot be given access to matter that the Tribunal considers to be exempt matter, or allowed to inspect a document that the Tribunal considers to be an exempt document.
The terms 'protected matter', 'exempt matter' and 'exempt document' are defined in s 3(1) of the SAT Act as follows:
protected matter means –
(a)any information or document to which a certificate under section 159(2) applies, except to the extent that an order of the Tribunal under section 159(4) that its disclosure would not be contrary to the public interest has effect; or
(b)exempt matter or an exempt document[.]
exempt matter means matter that is exempt under Schedule 1 to the Freedom of Information Act 1992[.]
exempt document means a document that contains exempt matter[.]
As the former President determined that the medical report is 'protected matter', we are unable to disclose the contents of the medical report in these reasons. However, we are satisfied, on the medical report (and the practitioner's response to the complaint which is consistent with the medical report), that the practitioner's failure to settle and provide the statement of claim and to respond to his instructing solicitor's enquiries during the period December 2016 to February 2017 was a manifestation of, and attributable to, a serious illness which was, at that time, undiagnosed, but in relation to which the practitioner has subsequently been receiving treatment. It is clear on the evidence that the practitioner's serious health condition at the relevant time materially affected his ability to satisfactorily carry out the requirements of legal practice, including in relation to settling and providing the statement of claim and responding to the enquiries from his instructing solicitor. As the Committee said in its reasons at [32.6], 'there was a clear nexus between the practitioner's conduct and his health condition'.
The applicant submits that the Tribunal should not be satisfied that the practitioner's failure to settle and provide the statement of claim and to respond to his instructing solicitor's enquiries was attributable to any illness, because '[n]o sworn evidence has been put before the Tribunal by the [practitioner] that his medical illness caused his conduct that the [a]pplicant complains about or at all'.[30] However, the Tribunal 'is not bound by the rules of evidence or any practices or procedures applicable to courts of record'[31] and 'may inform itself on any matter as it sees fit'.[32] The medical report constitutes clear and cogent evidence (which is consistent with the practitioner's response to the complaint) to the effect that the practitioner's failure to settle and provide the statement of claim and to respond to his instructing solicitor during the period December 2016 to February 2017 was a manifestation of, and attributable to, a serious illness.
[30] Applicant's submissions in support at [2].
[31] Section 32(2)(a) of the SAT Act.
[32] Section 32(4) of the SAT Act.
The applicant also submits that 'the Tribunal could reasonably draw an inference that the cause of the conduct complained of by the [a]pplicant was not the medical condition claimed by the [practitioner], but the previous involvement between the [a]pplicant and [the practitioner's] partner, in the matter in which he was instructed to prepare a statement of claim'.[33] This submission is premised on evidence given by the applicant in his affidavit sworn on 12 June 2018 in this proceeding. In that affidavit, the applicant states that, in April 2012, he met with Ms Fiona Roche, who was the Deputy Commissioner of the Public Service Commission, to lodge a complaint about affidavits filed by the Rottnest Island Authority in proceedings brought by the applicant and Kingsfield Holdings Pty Ltd under s 16(1) of the Commercial Tenancy (Retail Shops) Agreements Act 1984 (WA) in the Tribunal against the Rottnest Island Authority. The applicant also states in the affidavit that at the conference at the practitioner's chambers held on 8 December 2016 attended by the practitioner, Mr Fiocco and himself, the applicant informed the practitioner that he had met with Ms Roche concerning the affidavits in the earlier SAT proceedings and that the practitioner 'replied with words to the effect that Ms Roche was his wife'.[34]
[33] Applicant's submissions in support at [20].
[34] Affidavit of Jeffrey Lee in support of interim application sworn on 12 June 2018 at [10].
The applicant submits that the practitioner's wife was 'the officer responsible for investigating matters concerned with the commencement of legal action against the WA government and the Rottnest Island Authority currently before the Supreme Court'[35] and the practitioner's conduct the subject of the complaint 'commenced about the time the [practitioner] became aware of his partner's meeting with the [a]pplicant, as Deputy Public Service Commissioner'.[36]
[35] Applicant's submissions in support filed on 22 October 2018 at [19].
[36] Applicant's submissions in support filed on 22 October 2018 at [18].
In effect, the applicant submits that the Tribunal should infer that the reason the practitioner failed to settle and provide the statement of claim and failed to respond to his instructing solicitor's enquiries during the period December 2016 to February 2017 was because he learned at the conference on 8 December 2016 of his wife's involvement in a matter related to the Supreme Court proceedings. This is a very serious allegation and clear and cogent evidence would be required in order to be able to draw such an inference.
However, there is insufficient evidence before the Tribunal to support such a finding. The fact that the applicant informed the practitioner on 8 December 2016 of the practitioner's wife's involvement and that the practitioner failed to subsequently settle and provide the statement of claim and respond to Mr Fiocco's enquiries is not sufficient evidence in the circumstances of this case for the inference suggested by the applicant to be drawn. This is particularly the case, given that the practitioner had already (by 8 December 2016) failed to settle and provide the statement of claim by the date originally ordered by the Supreme Court (6 December 2016) and given the medical report which, as indicated earlier, provides clear and cogent evidence supporting a finding that the practitioner's failure to settle and provide the statement of claim and to respond to his instructing solicitor during the period December 2016 to February 2017 was a manifestation of, and attributable to, his health condition.
The second reason for our decision that it is in the public interest to dismiss the applicant's complaint about the practitioner is that, as indicated earlier, the practitioner ceased to practise as a barrister at around the time of the conduct the subject of the complaint and was not practising at the time the Committee decided to dismiss the complaint. Furthermore, as indicated earlier, the Committee resolved to provide a report on the conduct the subject of the complaint to the Legal Practice Board (Board) pursuant to s 586(1) of the LP Act.
The evidence before the Tribunal does not indicate whether the practitioner has applied to the Board to renew his practising certificate. If and when the practitioner applies to return to legal practice, appropriate conditions can be imposed by the Board on his practising certificate to ensure the protection of the consumers of the practitioner's legal services and the public generally in consequence of the practitioner's diagnosed illness, having regard to the facts and circumstances at the relevant time. Although one of the fundamental purposes of the complaints and discipline provisions in Pt 13 of the LP Act is 'to provide for the discipline of the legal profession … in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally',[37] in the circumstances of this case, the protection of consumers of legal services and the public generally does not require the imposition of any disciplinary outcome, beyond notification to the Board of the circumstances in relation to the complaint.
[37] Section 401(a) of the LP Act.
Thirdly, the practitioner has demonstrated insight in relation to his illness and remorse in relation to the professional failures the subject of the complaint. The practitioner demonstrated insight into his illness by seeking and undergoing treatment and by acknowledging it in his response to the complaint. As indicated earlier, in his response to the complaint, the practitioner said that he apologised in writing to the applicant and to the firm when he returned the brief. The applicant gives evidence in his affidavit that 'I did not receive an apology and from my enquiries neither did my solicitors notwithstanding this claim in the [practitioner's] email'.[38] There is therefore a conflict of evidence in relation to whether the practitioner provided a written apology. However, it is clear from the practitioner's response to the Committee in relation to the complaint that he is genuinely remorseful for his conduct.
[38] Affidavit of Jeffrey Lee in support of interim application sworn on 12 June 2018 at [20].
Fourthly, although the practitioner's failure to settle and provide the statement of claim and to respond to his instructing solicitor's enquiries was most unfortunate and clearly and understandably gave rise to significant concerns on the part of the applicant as to the potential impact of the practitioner's failures on the Supreme Court proceedings, and to professional embarrassment on the part of the practitioner's instructing solicitor, the practitioner's failures involved an isolated incident which is appropriately to be viewed in the public interest in the context of a substantial period of professional practice with no disciplinary history.
Finally, the practitioner's failures to settle and provide the statement of claim and to respond to his instructing solicitor's enquiries did not have any significant or material consequence, principally because of Mr Fiocco's appropriate and timely conduct. As we have said, Mr Fiocco was clearly and understandably professionally embarrassed by the practitioner's failures. However, by his appropriate and timely responses to the practitioner's failures, namely frankly explaining the circumstances to the Supreme Court and to the defendants' solicitor, seeking to contact the practitioner, successfully making the applications for further extensions of time, and withdrawing the practitioner's brief so that alternative counsel could be briefed, Mr Fiocco ensured that the practitioner's failures did not have any significant or material impact on the applicant's position in the Supreme Court proceedings.
Contrary to the applicant's fears expressed in the complaint, there is no evidence that the practitioner's behaviour 'cast a damaging light on my case' and the proceeding was not struck out, even though a statement of claim was not filed by 7 March 2017 as required by Registrar Dixon's order made on 24 January 2017.
The applicant submits that the practitioner's failures resulted in him having to pay costs to the defendants in the Supreme Court proceedings and fees to his own lawyers in relation to seeking extension of the period for filing and service of the statement of claim. This is correct, although the costs and fees involved were not significant in the context of the litigation as a whole. At its highest, the practitioner's failures resulted in the applicant having to pay the defendants' costs of the status conference on 24 January 2017 in the sum of $480 and of the status conference on 18 April 2017 in the amount of $485, and the fees charged by the firm for the first attendance and by Mr Coyle for the second attendance. We assume, for the purposes of these reasons, that the practitioner's failures resulted in the applicant having to pay the costs and fees we have just referred to. However, it is arguable that the costs order made on 18 April 2017 and Mr Coyle's fees for attendance on that day were not wholly attributable to the practitioner's failures, as Mr Coyle had been briefed approximately two months earlier, there is no reason, on the evidence before the Tribunal, as to why a substitute brief could not have been provided to Mr Coyle earlier (even though the practitioner had not returned his brief at the time) and it appears that Mr Coyle had settled and provided the statement of claim to the firm before the status conference on 18 April 2017.
The applicant also submits that 'the [practitioner's] conduct was the cause of the [a]pplicant incurring further legal costs in appointing a new Counsel who had to familiarise himself with the matter and then prepare a Statement of Claim to prevent the matter being struck out in Court'.[39] We accept that a portion of the fees charged by Mr Coyle 'to familiarise himself with the matter' would not have been charged by the practitioner, had he settled and provided the statement of claim, because of his previous involvement with the matter. However, the practitioner's previous involvement in relation to the matter took place between one and one-and-a-half years before he was instructed to settle and provide the statement of claim and the practitioner did not charge the applicant any fees in relation to the statement of claim.
Conclusion and orders
[39] Applicant's submissions in support filed on 22 October 2018 at [21].
For these reasons, in our view, the correct and preferable decision at the time of the decision upon the review is that we are satisfied on the evidence before the Tribunal that it is in the public interest to dismiss the applicant's complaint about the practitioner under s 425(b) of the LP Act.
Consequently, we make the following orders:
1.The application for review is dismissed.
2.The decision made by the first respondent to dismiss the complaint made by the applicant about the second respondent is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MF
Associate to the Honourable Judge Parry13 FEBRUARY 2019
0
8
3