Lee v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee
[2023] WASCA 60
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LEE -v- LAW COMPLAINTS OFFICER AS THE DELEGATE OF THE LEGAL PROFESSION COMPLAINTS COMMITTEE [2023] WASCA 60
CORAM: MURPHY JA
VAUGHAN JA
HEARD: 24 MARCH 2023
DELIVERED : 18 APRIL 2023
FILE NO/S: CACV 66 of 2022
BETWEEN: JEFFREY LEE
Appellant
AND
LAW COMPLAINTS OFFICER AS THE DELEGATE OF THE LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
MARTIN LAWRENCE BENNETT
Second Respondent
NICOLA EMMA RANDALL
Third Respondent
ALEXANDER JAMES THARBY
Fourth Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: JUDGE H JACKSON, DEPUTY PRESIDENT
MR J O'SULLIVAN, SENIOR MEMBER
MR R POVEY, MEMBER
Citation: LEE and LAW COMPLAINTS OFFICER, AS THE DELEGATE FOR THE LEGAL PROFESSION COMPLAINTS COMMITTEE [2022] WASAT 53
File Number : VR 22 of 2021
Catchwords:
Practice and procedure - Appeal - Supervening bankruptcy - Where appeal in nature of judicial review of decision of statutory body - No election by trustee - Appeal not an action in respect of 'personal injury or wrong done to the bankrupt' - Appeal deemed abandoned pursuant to s 60(3) of Bankruptcy Act 1966 (Cth)
Legislation:
Bankruptcy Act 1966 (Cth), s 60(3), s 60(4)
Legal Profession Act 2008 (WA), s 401, s 409, s 415, s 435
State Administrative Tribunal Act 2004 (WA), s 87, s 105
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | J S Lee |
| First Respondent | : | N D Pope |
| Second Respondent | : | A J Tharby |
| Third Respondent | : | A J Tharby |
| Fourth Respondent | : | A J Tharby |
Solicitors:
| Appellant | : | Bayview Legal |
| First Respondent | : | Legal Services and Complaints Committee |
| Second Respondent | : | Bennett |
| Third Respondent | : | Bennett |
| Fourth Respondent | : | Bennett |
Case(s) referred to in decision(s):
Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713
Culleton v Dakin Farms Pty Ltd [2015] WASCA 183
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117
Lee and Law Complaints Officer, as the Delegate for the Legal Profession Complaints Committee [2022] WASAT 53
Lee v Lawfirst Pty Ltd [2023] WASCA 59
Luck v Secretary of Services Australia [2022] FCAFC 195; (2022) 406 ALR 567
Millane v Shire of Heidelberg [1928] VLR 52
Moran v Minco Holdings Pty Ltd (in liq) [2022] WASCA 93
Re Maraj (a legal practitioner) (1995) 15 WAR 12
Springmist Pty Ltd and Shire of August‑Margaret River [2005] WASAT 143 (S)
State of Queensland v Beames [2003] QSC 399; [2004] 2 Qd R 99
Young v Legal Profession Complaints Committee [2022] WASCA 52
JUDGMENT OF THE COURT:
This matter came to a hearing on 24 March 2023, pursuant to an amended registrar's notice to attend dated 15 February 2023, to consider:
1.the appellant's application in an appeal filed 1 December 2022 to restrain the respondents from retaining certain solicitors and counsel to act for them in this appeal; and
2.the making of orders, if any, consequent upon the appellant becoming bankrupt.
In the appeal, the appellant (Mr Lee) seeks leave to appeal and to appeal against orders made by the State Administrative Tribunal (Tribunal), pursuant to reasons for judgment in Lee and Law Complaints Officer, as the Delegate for the Legal Profession Complaints Committee[1] (Tribunal decision).
[1] Lee and Law Complaints Officer, as the Delegate for the Legal Profession Complaints Committee [2022] WASAT 53.
In the proceedings before the Tribunal, the Tribunal considered an application for a review of a decision by the first respondent (LPCC Officer) to dismiss certain complaints made by Mr Lee against his former solicitors (Lawfirst Pty Ltd, then trading as Bennett + Co) in the conduct of the defamation proceedings. The individual solicitors of whom Mr Lee complained are the second ‑ fourth respondents in this appeal (the Bennett solicitors).
Following the commencement of the appeal, on 3 November 2022, a trustee in bankruptcy was appointed to the estate of Mr Lee. On 4 November 2022, Lawfirst wrote to Mr Lee's trustee in bankruptcy giving notice of the appeal, and referring to the question of election in accordance with s 60(2) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act).
No notice of election has been made for the purposes of s 60(2) and (3) of the Bankruptcy Act.
For the reasons which follow, pursuant to s 60(3) of the Bankruptcy Act, the trustee of Mr Lee's estate is deemed to have abandoned the appeal, and there being no purpose served in keeping the appeal on foot, the appeal should be dismissed.
Background - overview
In broad terms, the relevant background is as follows.
In 2013, Mr Lee and a company controlled by him (Kingsfield) commenced defamation proceedings as plaintiffs against a Mr Rutherford. Mr Lee's legal firm acted for the plaintiffs for a period of time. In or around September 2015, on Mr Lee's instructions, Lawfirst took over the conduct of the defamation proceedings, which were listed for trial in November 2015. The defamation proceedings were heard by Kenneth Martin J in November 2015. In April 2016, his Honour delivered judgment, dismissing the defamation claims made by Mr Lee and Kingsfield.[2]
[2] Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117.
Mr Lee subsequently commenced proceedings in 2021 (CIV 2167 of 2021) against Lawfirst in connection with alleged breaches of contract and duty in connection with the conduct of the defamation proceedings.
In addition to commencing the professional negligence proceedings against Lawfirst, in 2019 Mr Lee made certain professional disciplinary complaints against the Bennett solicitors to the Legal Profession Complaints Committee (LPCC).[3]
[3] The LPCC is now named the Legal Services and Complaints Committee.
The LPCC's 'Rapid Resolution Team' assessed complaints made by Mr Lee, following which, on 16 April 2020, the Senior Legal Officer wrote to Mr Lee addressing his complaints and advising that there was no matter identified as requiring further investigation by the LPCC, but adding that there could be further discussion if Mr Lee wished to pursue it. Mr Lee provided further material in May 2020. On 28 October 2020, the Senior Legal Officer wrote again to Mr Lee and addressed the further material provided. She advised that whilst nothing in the additional material warranted any change of mind, the matters would be referred to the LPCC Officer for consideration. Mr Lee provided further material.
Ultimately, on 9 March 2021, the LPCC Officer dismissed the complaints. The LPCC Officer advised that, for the reasons set out in the Senior Legal Officer's letters dated 16 April 2020 and 28 October 2020, as well as for some additional reasons, he considered that 'no further investigation is required' and dismissed the complaints 'under sections 415(1)(b) and 415(1)(3)'[4] of the Legal Profession Act 2008 (WA) (LP Act). The LPCC Officer also sent letters of the same date to the Bennett solicitors which advised that he had dismissed the complaints 'under section 415(3) of the LP Act'.[5]
[4] This appears to be a typographical error - it should read s 415(3).
[5] Tribunal decision [46].
Mr Lee applied to the Tribunal for review of the dismissal of his complaints, and his application was dismissed by the Tribunal. On 22 June 2022, the Tribunal relevantly ordered:
2.The application is dismissed.
3.The decision by the [LPCC Officer] made on 9 March 2021 dismissing each of [Mr Lee's] five complaints is affirmed.
The LP Act
The long title of the LP Act provides:
An Act -
•to provide for the regulation of legal practice in Western Australia; and
•to facilitate the regulation of legal practice on a national basis; and
•for other related purposes.
Part 13 of the LP Act is headed 'Complaints and discipline' and contains s 401 ‑ s 469. Section 401 describes the purposes of pt 13 of the LP Act:
(a)to provide for the discipline of the legal profession in this jurisdiction, 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;
(b)to promote and enforce the professional standards, competence and honesty of the legal profession;
(c)to provide a means of redress for complaints about lawyers.
By s 409, a complaint may be made about an Australian legal practitioner's conduct to which pt 13 applies.
Section 415 provides, relevantly:
(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.
…
(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.
Section 435 provides:
(1)Subject to subsection (2), a person aggrieved by -
(a)a decision of the Complaints Committee to dismiss a complaint; or
(b)a decision made by the Complaints Committee under section 426,
may apply to the State Administrative Tribunal for a review of the decision.
(2)If the Complaints Committee, in its reasons for its decision, specifically finds the complaint -
(a)to be trivial, unreasonable, vexatious or frivolous; or
(b)in the case of a complaint purporting to be made under section 410(1)(e), to be a matter in which the complainant does not have, or did not have, a direct personal interest,
the person aggrieved cannot apply to the State Administrative Tribunal for a review of the decision without the leave of the Tribunal.
The appeal
In his appellant's case filed in the appeal, Mr Lee alleged two grounds of appeal, each of which he contended raised a question of law. The questions of law were to the following effect:
1.Whether the Tribunal erred in law in failing to consider all relevant materials before it, and, in particular, in failing to consider a number of complaints (allegedly) made by Mr Lee in his submissions to the Tribunal which were not (allegedly) considered.
2.Whether the Tribunal erred in law by taking into account irrelevant considerations and failing to take into account relevant considerations when it considered the complaints.
Mr Lee in his 'Orders wanted' in the appeal seeks to set aside orders 2 and 3 of the Tribunal decision (see [13] above), with certain directions for remitter. He also seeks the costs of the appeal.
The LPCC filed a respondent's answer dated 7 September 2022, the submissions of which were signed by Mr Beetham of counsel. The Bennett solicitors also filed a respondent's answer on 7 September 2022.
By his application filed 1 December 2022, Mr Lee sought orders to the effect that (1) the Bennett solicitors be restrained from using Lawfirst to represent them in this appeal, and (2) the LPCC be restrained from retaining Mr Beetham of counsel to represent the LPCC in the appeal.
The Bankruptcy Act and the principles
The material provisions of the Bankruptcy Act, and the relevant principles, have been outlined in a related judgment: Lee v Lawfirst.[6] These matters need not be repeated here, other than for convenience to refer to the terms of s 60 of the Bankruptcy Act. Section 60 provides, relevantly:
(2)An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.
(3)If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action.
(4)Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of:
(a)any personal injury or wrong done to the bankrupt[.]
[6] Lee v Lawfirst Pty Ltd [2023] WASCA 59.
The parties' submissions on the bankruptcy issue
In written submissions, Mr Lee submitted, in effect, that the appeal falls within s 60(4) of the Bankruptcy Act. He submitted:[7]
[T]he substance of the appeal is the negligent conduct of the [Bennett solicitors] in the Defamation proceedings causing loss to [Mr Lee]. It is submitted that … the appeal is in respect of the personal injury or wrong done to [Mr Lee].
[7] Appellant's submissions in relation to making of orders dated 13 January 2023, par 30.
Similarly, in oral submissions, having emphasised the width of the language 'in respect of' in s 60(4), Mr Lee submitted that the substance of the matter in the Tribunal, and in this appeal, 'come[s] back to the defamation proceedings and the loss of opportunity in the defamation proceedings to settle [those proceedings]'.[8]
[8] Hearing 24 March 2023, ts 3 - 5.
Mr Lee also referred to s 87(3) of the State Administrative Tribunal Act 2004 (SAT Act) which gives the Tribunal power to order payment of costs including the payment of compensation for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceedings were brought. Mr Lee said that he seeks costs in this appeal.[9]
[9] Mr Lee's submissions in relation to making of orders, pars 21 - 22.
The Bennett solicitors contended that this appeal was an action akin to judicial review in connection with proceedings in which the LPCC performs a public function of receiving, investigating and determining or prosecuting complaints made against legal practitioners. The LPCC's decision did not concern any personal injury or wrong done to Mr Lee, nor did it cause or do to him any such personal injury or wrong. It is not an action within the meaning of s 60(4) of the Bankruptcy Act. They referred to Luck v Secretary of Services Australia.[10]
[10] Luck v Secretary of Services Australia [2022] FCAFC 195; (2022) 406 ALR 567 [44].
The LPCC Officer made no submissions on the bankruptcy issue, other than to refer the court to a decision of the Tribunal on s 87 of the SAT Act: Springmist Pty Ltd and Shire of August‑Margaret River.[11]
[11] Springmist Pty Ltd and Shire of August‑Margaret River [2005] WASAT 143 (S).
The bankruptcy issue - disposition
The appeal to the court is relevantly confined, by s 105 of the SAT Act, to questions of law, with the result that this appeal is in the nature of judicial review.[12] Section 105(9) of the SAT Act does not enlarge the court's jurisdiction, but, rather, confers powers on the court in the exercise of that jurisdiction.[13]
[12] Young v Legal Profession Complaints Committee [2022] WASCA 52 [24].
[13] Young [25].
Further, the appeal relates to the conduct of a statutory decision‑maker in a statutory context, the objects of which are, in broad terms, to further the administration of justice and to protect the public and consumers of legal services: s 401 of the LP Act. Moreover, if a complaint was established and, ultimately, disciplinary action was taken, the object of the disciplinary action would be to protect the public and to maintain proper standards in the legal profession.[14]
[14] Re Maraj (a legal practitioner) (1995) 15 WAR 12, 25; Khosa v Legal Profession Complaints Committee [2017] WASCA 192 [37].
In this context, neither the LPCC Officer's decision nor the Tribunal's decision can be characterised as impugning or affecting Mr Lee's character. Nor, contrary to Mr Lee's submissions, can the matter before the Tribunal be characterised as, in substance, the defamation proceedings and the loss of opportunity in the defamation proceedings to settle the action before judgment. The substance of the matter before the Tribunal was not one in which Mr Lee sought to recover damages for injury done to his 'mind, body or character'.[15] Rather, the matter before the Tribunal concerned the LPCC Officer's dismissal of Mr Lee's complaints as to the professional conduct of the Bennett solicitors. Whilst the complaints were brought in respect of the Bennett solicitors' conduct in the defamation proceedings, the focus of the complaints was on the Bennett solicitors' conduct and not the character or reputation of Mr Lee. The appeal cannot be characterised as an action in respect of 'any personal injury or wrong' done to Mr Lee within the meaning of s 60(4) of the Bankruptcy Act. The position is materially different from any of the cases referred to by the Full Court in Luck.[16]
[15] Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713, 721.
[16] Luck [48].
The existence of the power in the Tribunal under s 87 of the SAT Act does not alter the character of this appeal. The 'action', for present purposes, remains akin to proceedings for judicial review in the statutory context referred to above. Also, Mr Lee, in this appeal, only seeks remitter plus costs of the appeal if he succeeds. There is no suggestion in the appellant's case that this court should purport to make any costs orders pursuant to s 87 of the SAT Act. Nor did Mr Lee suggest in his application filed in the Tribunal for a review of the LPCC Officer's decision that he sought costs under s 87 of the SAT Act.
Also, although it is not necessary for present purposes to attempt a definitive construction of the scope of s 87(3) of the SAT Act, it is evident that the power under s 87(2) and s 87(3) is conferred on the Tribunal in relation to the exercise of its statutory jurisdiction. The Tribunal has no jurisdiction to adjudicate upon general law causes of action and award damages for breach of duty. Moreover, in terms of s 87(3) of the SAT Act, the costs are to compensate for expenses and so on resulting from the proceeding or the matter because of which the proceeding was brought. Here the relevant 'proceeding' is the SAT proceeding. The relevant 'matter' is the LPCC Officer's dismissal of Mr Lee's complaints as to the professional conduct of the Bennett solicitors. Accordingly, the power under s 87(3) cannot extend to any loss of the kind relied on by Mr Lee at [24] and [25] above.
The result is that the appeal is deemed to have been abandoned pursuant to s 60(3) of the Bankruptcy Act and there is no personal right in Mr Lee to pursue it.
The deemed abandonment of proceedings in respect of a cause of action does not itself extinguish the underlying cause of action asserted in the proceedings.[17] Accordingly, the courts have shown some reluctance to dismiss an action at first instance once it has been abandoned under a provision such as s 60(3) of the Bankruptcy Act, out of a concern that the dismissal might create unnecessary res judicata estoppels against the bankrupt.[18] However, there was no suggestion by Mr Lee in this case that this was an issue of concern in the appeal. Mr Lee's appeal did not seek to vindicate any underlying cause of action vested in him.[19]
[17] Moran v Minco Holdings Pty Ltd (in liq) [2022] WASCA 93 [12].
[18] Millane v Shire of Heidelberg [1928] VLR 52, 52 ‑ 54; State of Queensland v Beames [2003] QSC 399; [2004] 2 Qd R 99 [15] ‑ [16].
[19] Culleton v Dakin Farms Pty Ltd [2015] WASCA 183 [46].
In the circumstances, no purpose would be served in leaving the appeal on foot.
Conclusion
For these reasons, the appeal should be dismissed. It is unnecessary to consider Mr Lee's application filed 1 December 2022. The parties should be heard as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IB
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
18 APRIL 2023
5
11
0