LEE and LEGAL PROFESSION COMPLAINTS COMMITTEE
[2018] WASAT 91
•6 SEPTEMBER 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)
CITATION: LEE and LEGAL PROFESSION COMPLAINTS COMMITTEE [2018] WASAT 91
MEMBER: PRESIDENT, JUSTICE J C CURTHOYS
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 6 SEPTEMBER 2018
FILE NO/S: VR 41 of 2018
BETWEEN: JEFFREY LEE
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
RICHARD LANCELOT HOOKER
Second Respondent
Catchwords:
Interim application - Section 35 of the State Administrative Tribunal Act 2004 (WA) - Relevance - Exempt matter - Exempt document - Protected matter - No basis to establish any public interest in disclosure of further documents
Legislation:
Freedom of Information Act 1992(WA), Sch 1, cl 3
Legal Profession Act 2008 (WA), s 425(6), s 435(1)(c)
State Administrative Tribunal Act 2004 (WA), s 3, s 24, s 35
Result:
Interim application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| First Respondent | : | Mr S Merrick |
| Second Respondent | : | Non-Appearance |
Solicitors:
| Applicant | : | N/A |
| First Respondent | : | Legal Profession Complaints Committee |
| Second Respondent | : | N/A |
Case(s) referred to in decision(s):
Dixon v Legal Practice Board of Western Australia [2012] WASC 79
Nurses and Midwives Board of Western Australia and Watson [2008] WASAT 59
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 10 February 2017, Jeffrey Stewart Lee made a complaint to the Legal Profession Complaints Committee (Committee) concerning the conduct of a practitioner (Exhibit A page 8-10).
Mr Lee's complaint concerned the practitioner's failure to respond to a brief to prepare a statement of claim and to follow up enquires as to the preparation of the statement of claim. Ultimately, the brief was taken from the practitioner.
The Committee dismissed Mr Lee's complaint. Mr Lee was advised of the Committee's reasons by letter dated 28 February 2018 (Exhibit A pages 17).
The Committee dismissed Mr Lee's complaint on the basis that it was satisfied that it was in the public interest to do so (Exhibit A pages 1-7; s 425(6) of the Legal Profession Act 2008 (WA) (LP Act)).
On 28 March 2018, Mr Lee filed an application with the Tribunal seeking a review of the Committee's decision to dismiss the complaint pursuant to s 435(1)(c) of the LP Act.
On 10 April 2018, the Tribunal made standard programming orders including orders pursuant to s 24 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) requiring the filing of relevant documents.
Mr Lee's interim application
On 15 June 2018, Mr Lee filed an interim application seeking the following orders relating to the production of further documents:
1.1pursuant to s 35(1) of the State Administrative Tribunal Act 2004 (SAT Act), that Australia and New Zealand Banking Group Ltd (ANZ) produce bank statements for the account of the second respondent (being BSB 016 002, A/C No. 5969 48723) for the period October 2016 to July 2017 inclusive (bank statements), to the Tribunal; and
1.2the applicant have access to the two documents in Part B of the first respondent's bundle of documents filed with the Tribunal on 7 May 2018 (s 24 bundle of documents).
Mr Lee's interim application was supported by an affidavit filed on 15 June 2018. The gist of Mr Lee's affidavit is found in para 26 of the affidavit which states:
I have no knowledge as to when the SR [the practitioner] was diagnosed with his illness, how long he has had his illness, how the illness prevents him from fulfilling his obligations, or how many clients were affected by the SR's illness from December 2016 onwards.
Legislation and authorities
Section 35 of the SAT Act provides:
(1)On the application of a party to a proceeding, the Tribunal may order that a person
(a)who is not a party to the proceeding; and
(b)who has, or is likely to have, in the person’s possession or under the person’s control a document or other material that is relevant to the proceeding,
produce the document or material to the Tribunal or the party within the time specified in the order.
(2)The Tribunal may order a person to produce a document or other material despite any rule of law relating to privilege (other than legal professional privilege) or the public interest in relation to the production of documents.
(3)However if the Tribunal considers that any document is or contains protected matter, the Tribunal cannot order a person to produce it to a party.
Section 3 of the SAT Act defines 'protected matter' as:
exempt matter or an exempt document[.]
Section 3 of the SAT Act defines 'exempt matter':
… matter that is exempt under Schedule 1 to the Freedom of Information Act 1992[.]
Section 3 of the SAT Act defines 'exempt document' as:
… a document that contains exempt matter[.]
Schedule 1 of the FOI Act denies 'exempt matter' as 'matter that is exempt matter under Schedule 1.
Clause 3 of Sch 1 of the FOI Act provides:
(1)Matter is exempt matter if its disclosure would reveal personal information about an individual (whether living or dead).
(2)Matter is not exempt matter under subclause (1) merely because its disclosure would reveal personal information about the applicant.
…
(6)Matter is not exempt matter under subclause (1) if its disclosure would, on balance, be in the public interest.
In analysing an application under s 35 of the SAT Act for the production of documents, the first question is: 'Is the document relevant'? It is only if a document is relevant that a question as to whether it is a document that constitutes 'protected matter' will arise.
In Nurses and Midwives Board of Western Australia and Watson [2008] WASAT 59, Barker J stated at [10][11]:
There is little doubt that before the Tribunal will make an order under s 35 of the SAT Act, it must be satisfied that the document is relevant to the proceedings. It is clear that the power to order production cannot be used as part of a 'fishing expedition' on the part of an applicant. Nor can it be utilised for a purpose collateral to the main object of the proceedings. However, the Tribunal is not obliged to embark on a preliminary inquiry into the evidence: Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350 at 374 (Apache).
In that context, the primary question to be asked by the Tribunal is whether the party seeking the order for the production of a document has a 'legitimate forensic purpose' for seeking production: Apache; Stanley v Layne Christensen Company [2004] WASCA 50 at [9].
The issue in the application will set the parameters of reference.
The issue in the application
As the Committee correctly stated:
The issue for determination in the proceeding is whether the correct and preferable decision was that made by the first respondent, namely that it was in the public interest to dismiss the applicant's complaint pursuant to s 425(b) of the Legal Profession Act 2008 (LP Act) (Decision): s 27(2) of the SAT Act; Bailey and LPCC [2011] WASAT 164 at [13], [32] and [53].
Paragraph 32 of the Committee's reasons for the dismissal of Mr Lee's complaint is set out at below:
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:
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.
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.
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.
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.
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.
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.
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.
Mr Lee made extensive submissions as to the application of the Freedom of Information Act 1992 (WA) (FOI Act) to the documents to which he seeks access.
The bank statements
Mr Lee submitted:
[T]he Tribunal can make an Order against the ANZ as sought by the Applicant as the documents sought are not exempt documents and are relevant as to whether the SR continued to practice law with respect to clients other than the Applicant.
Mr Lee further submitted:
[I]t requires the Bank Statements in order to assess whether the SR continued to conduct a business in the relevant period with clients other than the Applicant notwithstanding the alleged illness.
2.1It is submitted that a legal practitioner owes certain duties to members of the public who he acts for and who are ultimately responsible for payment of his fees. See Legal Professional Conduct Rules 2010 (LPCR).
2.2Where a legal practitioner withdraws his services at a critical time in a matter, the legal practitioner should provide compelling evidence that such withdrawal was proper and justifiable.
2.3The SR claims that due to illness he was unable to perform his instructions as required by the Applicant. At the time of the SR's claim, in an email dated 3 May 2017 but received 4 May 2017 (SR's email), although offered, no medical evidence was provided by the SR in support of this claim.
2.4The SR's email to the FR attempts to explain his lack of communication with the Applicant and his solicitors on his alleged illness. However, there was no communication with the Applicant or his solicitors at this time or subsequently.
There is an obligation to communicate with a client as the SR is aware. See s 8 of LPCR.
2.5Further, there is no evidence to suggest that the SR attempted to surrender his Practising Certificate notwithstanding his serious illness and the SR continued to hold a Practising Certificate until 30 June 2017.
2.6The SR's email indicates that the SR had no active files as at 3 May 2017.
2.7The SR does not claim he had no active files from December 2016 to May 2017.
2.8In the SR's email the SR does not claim that he withdrew his services from all matters he was acting in, or took no fresh instructions on any matters in December 2016 or thereafter.
2.9If the SR continued to practise after December 2016, this is relevant to the SR's claim of illness and why he withdrew from the Applicant' action.
2.10Bank statements will indicate whether the SR was still carrying on business during the relevant period.
2.11Further no medical evidence was provided by the SR in support, until on or about 17 November 2017, following a letter from the LPCC dated 1 November 2017.
2.12The Applicant also received a letter from the LPCC, dated 1 November 2017 indicating the matter would be heard by the Committee in 2018.
2.13Further in the SR's email he claims that he had returned the brief and apologised in writing to the Applicant and his solicitors, Slater & Gordon.
2.14The Applicant has never received an apology from the SR and from his communications with Mr John Fiocco neither has Slater & Gordon and the whereabouts of the Applicant's files are unknown and contain confidential information.
2.15The Applicant claims that the Bank Statements requested are relevant and in the event that the Tribunal considers that the SAT Act successfully incorporates Schedule 1 of the FOI Act then the Applicant submits that the Bank Statements do not contain exempt matter, as set out in Schedule 1 of the FOI Act as clause 3(6) is applicable for the above reasons and that therefore the Bank Statements are not protected matter for the purposes of the SAT Act.
2.16The Applicant submits that although the Bank Statements may reveal information about third parties it is in the public interest, in the context of this matter, that this be disclosed to the Applicant.
Mr Lee's submissions in support of his application for the production of the practitioner's bank statements state, in effect, that they were relevant to whether the practitioner continued to carry on business with other clients of his practice.
There is nothing arising from the Committee's reasons for decision which would make the practitioner's bank statements relevant.
Whether or not the practitioner dealt with other clients during the period sought by Mr Lee is simply not relevant. The relevant factual issue relates to the practitioner's dealings with Mr Lee.
Since the bank documents are not relevant, no question arises under the FOI Act. In any event, the practitioner's bank statements are 'protected matter' because they constitute personal information.
Further, the disclosure of the practitioner's bank statements to Mr Lee would not be in the public interest. Mr Lee's submissions do not disclose any basis to establish any public interest in the disclosure of those statements.
The doctor's reports in Part B
Mr Lee submitted:
3.1The Applicant submits that if medical information is contained in these documents, that based on the submissions above, the disclosure would be in the public interest.
3.2Pt 4 of the Legal Professional Act 2008 (LPA) sets out the eligibility and suitability requirements for admission. One of the purpose for these requirements is "for the protection of consumers of legal services".
3.3Pt 2 s 6(2)(b-c) of the LPCR states that a practitioner must not to engage in conduct that would 'diminish public confidence in the administration of justice" or "bring the profession into disrepute'.
3.4The decision in Dixon v Legal Practice Board of Western Australia [2012] WASC79; BC201201176, at 27, places an emphasis on public interest [Dixon].
3.5In this context, the court's responsibility is to maintain public confidence in the integrity of its officers and the protection of the public in their dealings with the profession. It is for the protection of the public and the public interest in the maintenance of the reputation and standards of the legal profession to support the production of the sought documents.
Mr Lee's submissions amount to general statements about the obligations of practitioners. There is nothing in his submissions that establishes that in this particular case any public interest is served by revealing to him the contents of these documents.
The 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.
Mr Lee's submissions do not disclose any basis to establish any public interest in the disclosure of those reports.
Dixon 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.
The disclosure of the doctor's reports to Mr Lee would not be in the public interest.
Mr Lee's interim application should be dismissed.
Orders
1.Mr Lee's interim application dated 15 June 2018 is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUSTICE J CURTHOYS, PRESIDENT
6 SEPTEMBER 2018
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