Legal Practice Board Of Western Australia and Chesson - [2012] WASAT 10

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION: LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA and CHESSON [2012] WASAT 10

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MR M SPILLANE (SENIOR MEMBER)
MS R MOORE (MEMBER)

HEARD: 9 JANUARY 2012

DELIVERED : 9 JANUARY 2012

FILE NO/S: VR 218 of 2011

BETWEEN: LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA
Applicant
AND
SYDNEY JAMES CHESSON
Respondent

Catchwords:

Legal practitioners Admission to legal profession Application to Legal Practice Board for compliance certificate that applicant for admission is eligible for admission and a fit and proper person to be admitted Notice by Legal Practice Board to applicant for admission to give the Board specified documents Failure to comply with notice Board referred matter to Tribunal for directions Whether Tribunal has power to require compliance with notice Source of power Whether Tribunal should require compliance with notice

Legislation:

Legal Profession Act 2008 (WA), s 25(1), s 26(1), s 26(2), s 26(3), s 31, s 31(4), s 32, s 32(1), s 32(3), Div 3, Div 4 Pt 4
State Administrative Tribunal Act 2004 (WA), s 34, s 34(1), s 34(5), s 34(6)

Result:

Respondent required to comply with notice

Category: B

Representation:

Counsel:

Applicant: Mr AT Macknay
Respondent: Self-represented

Solicitors:

Applicant: MDS Legal
Respondent: N/A

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Sydney James Chesson applied to the Legal Practice Board of Western Australia for a compliance certificate that he is eligible for admission to the legal profession and is a fit and proper person to be admitted. The Legal Practice Board gave a notice to Mr Chesson requiring him to give the Board specified documents. Mr Chesson failed to comply with the notice.
The Legal Practice Board referred the matter to the Tribunal for directions. The issues for determination were whether the Tribunal has power to require compliance with the notice and, if so, whether the Tribunal should require compliance with the notice in the circumstances of the case.
Following the hearing, the Tribunal gave an oral decision in which it determined that it had power under s 32(3) of the Legal Profession Act 2008 (WA) to require compliance with the notice and that it was appropriate, in the exercise of its function and discretion under that section, to require compliance with the notice. The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows.

Introduction

This proceeding involves a referral by the Legal Practice Board of Western Australia (Board) of a matter to the Tribunal for directions pursuant to s 32(3) of the Legal Profession Act 2008 (WA) (LP Act). The matter concerns a notice given by the Board to Mr Sydney James Chesson (Mr Chesson) requiring him to give the Board specified documents pursuant to s 32(1) of the LP Act by 8 December 2011.

Statutory and factual background

Section 32 of the LP Act states as follows:
(1)To help the Board consider the matters referred to in section 31(1), the Board may, by notice to the applicant, require
(a)the applicant to give the Board specified documents or information; or
(b)the applicant to cooperate with any inquiries by the Board that it considers appropriate.
(2)An applicant’s failure to comply with a notice under subsection (1) by the date specified in the notice and in the way required by the notice is a ground for refusing to give a compliance certificate for the applicant.
(3)The Board may refer a matter to the State Administrative Tribunal for directions.
Section 32 of the LP Act sits within Div 4 of Pt 4 of the LP Act. That division concerns the function of the Board in relation to admissions by persons seeking to be admitted to the legal profession. Division 3 of Pt 4 of the LP Act concerns the admission of persons to the legal profession. In particular, s 25(1) of the LP Act enables a person to apply to the Supreme Court (full bench) to be admitted to the legal profession.
Section 26(1) of the LP Act enables the Supreme Court (full bench) to admit a person as a lawyer if:
a)the Supreme Court (full bench) is satisfied that the person:
i)is eligible for admission to the legal profession; and
ii)is a fit and proper person to be admitted to the legal profession; and
b)the person takes an oath or affirmation of office.
Section 26(2) of the LP Act states that:
For the purposes of subsection (1)(a), the Supreme Court (full bench) may rely on the advice of the Board.
Section 26(3) of the LP Act states:
The advice of the Board may be contained in a compliance certificate.
Section 31(1) of the LP Act states as follows:
If, after considering an application for admission to the legal profession, the Board considers that
(a)the applicant is
(i)eligible for admission; and
(ii)a fit and proper person to be admitted;
and
(b)the application is in accordance with the admission rules; and
(c)there are no grounds for refusing to give a certificate of the matters mentioned in paragraphs (a) and (b) (a compliance certificate),
the Board must, within the time specified in or determined in accordance with the admission rules, advise the Supreme Court to that effect by filing a compliance certificate.
Section 31(4) of the LP Act states the Board is taken to have refused to give a compliance certificate:
… if a compliance certificate has neither been given to the applicant nor refused within 6 months after
(a)if the Board has given the applicant a notice under section 32 the applicant has complied with the notice to the Board's satisfaction; or
(b)if paragraph (a) does not apply the application for admission was lodged.
On 29 July 2011, Mr Chesson gave notice to the Board that he has applied to be admitted to the legal profession. On 3 August 2011, the Admissions and Registration Committee (ARC) of the Board resolved that it would hold a formal hearing to determine whether Mr Chesson is a fit and proper person to be admitted. On 30 November 2011, the ARC resolved to issue a notice pursuant to s 32(1) of the LP Act to Mr Chesson requiring him to provide the following documents to the Board by 4 pm on 8 December 2011:
(1)copies of all correspondence received by you from the Department of Commerce relating to a complaint concerning you as the licensee of Master Settlements made by a Mr Walsh, including, but not limited to, the letter received by you on 4 August 2011 ('complaint letter');
(2)a copy of your response, if any, to the complaint letter;
(3)in relation to a legal action commenced by Mr Walsh against you as fourth defendant, a copy of the writ and pleadings served by Mr Walsh on you or your solicitors and any pleadings by you in response.
The notice was served on Mr Chesson on 1 December 2011. On that day, Mr Chesson responded by email to Mr Ashley Macknay, the Board's solicitor, stating that he had received the notice but:
… will not be complying with the notice until and unless I receive notice of an outcome from the Department of Commerce.
On 9 December 2011, the Board commenced this proceeding seeking an order as follows:
Within 14 days, the respondent give the applicant the documents specified in a notice dated 30 November 2011 required by the applicant under section 32(1)(a) of the Legal Profession Act 2008.
During the hearing this morning, Mr Macknay indicated that the 14 day period referred to in the order sought in the application was specified on the basis that it was anticipated that the application for directions would be heard substantively by the Tribunal before Christmas and that the period for compliance was likely to include the Christmas/New Year period. Mr Macknay submitted that, given that the hearing of the substantive application is occurring following New Year, it would be appropriate to specify a shorter period. Mr Chesson opposed the application for the order for reasons that I will address shortly, but indicated that he would be in a position to provide the documents sought in the notice within 48 hours, if required by the Tribunal.

Issues for determination

There are two issues for determination by the Tribunal:
1)Whether there is power to make the order sought by the Board.
2)Whether, if there is power to make the order, it is appropriate in the exercise of the Tribunal's function and discretion to make such an order in the circumstances of this case.

Is there power to make the order sought by the Board?

In relation to whether there is power, Mr Macknay referred the Tribunal to two potential sources of power: first, s 32(3) of the LP Act itself and, second, s 34 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and, in particular, s 34(1) and s 34(5).
We consider that there is power to make the order sought by the Board and that the source of power is s 32(3) of the LP Act itself. It is, in our view, implicit in that section that the Tribunal may, in effect, confirm a notice given by the Board under s 32(1) of the LP Act. Indeed, otherwise there would seem to be little purpose served by enabling the Board to refer a matter to the Tribunal for directions.
We do not consider that s 34 of the SAT Act is a source of power to make the order sought in this case. That section of the SAT Act is concerned with directions 'for the speedy and fair conduct of the proceeding'. In this case, the direction that is sought from the Tribunal in the terms of the order in the application is a substantive order disposing of proceedings brought before the Tribunal. It is not a direction for the conduct of a proceeding, but rather a direction being the final decision made in a proceeding.

Is it appropriate to make the order in the circumstances of this case?

In relation to the question of whether the order sought in the application, or an order in those terms but with a shorter period for compliance, should be made in the exercise of the Tribunal's power and discretion under s 32(3) of the LP Act, we are satisfied for the following reasons that it is appropriate to make the order sought and to require compliance by 11 January 2012.
The documents sought by the notice are potentially relevant to the Board's determination as to whether a compliance certificate should be issued in relation to Mr Chesson's application.
The information is not being sought, as Mr Chesson contended, to conduct a parallel proceeding to either the Supreme Court action in which Mr Chesson has been named as a defendant, or to a professional or vocational regulation matter before the Real Estate and Settlement Agents Board. Rather, as Mr Macknay submitted, the purpose of seeking the documents and information contained in the documents is to discharge the Board's obligations under the LP Act and to consider whether the compliance certificate should be issued. Section 32 of the LP Act exists to enable the Board to obtain potentially relevant information and to discharge its statutory function in relation to whether or not to issue a compliance certificate.
Mr Chesson made, essentially, nine submissions in opposition to the application for an order. First, Mr Chesson submitted that, by reference to s 34(6) of the SAT Act, an order should not be made because the information sought in the order contains protected matter. However, for reasons that we have given, the source of power is not s 34 of the SAT Act but, rather, s 32(3) of the LP Act itself.
Secondly, Mr Chesson submitted that there are a large number of legal matters in which he has been involved over many years. However, the notice is limited in its scope, and seeks only documents in relation to a single complaint and a single legal proceeding.
Thirdly, Mr Chesson submitted that at least some of the information sought in the notice is already in the Board's possession. That may be correct; however, it is reasonable, in our view, for the Board to seek copies of the documents in Mr Chesson's possession, particularly given that the scope of the notice is limited.
Fourthly, Mr Chesson submitted that, in relation to the Supreme Court proceeding, the subject matter of that proceeding is, at this stage, 'mere gossip or scuttlebutt'. He considered that the matter in the Supreme Court is, at this stage, 'private', and will remain private unless and until a substantive determination is made by the Court. However, the commencement of a legal proceeding is a serious matter and allegations made in a proceeding are substantially more than merely gossip or scuttlebutt. More relevantly, the commencement of a legal proceeding involving a person who applies for admission as a legal practitioner is something that is potentially relevant in relation to whether a compliance certificate should be issued and whether that person should be admitted to the legal profession.
Fifthly, Mr Chesson submitted that it is inappropriate for the Board to be making decisions in relation to matters not yet heard and that it is inappropriate, and indeed improper, that there be two investigations, one by the Legal Practice Board and one by the Real Estate and Settlement Agents Board in relation to the same matter. However, for reasons that we have given, that is not a correct characterisation of the basis for the notice. The basis for the notice is to enable the Board to discharge its statutory obligations as to whether or not to issue a compliance certificate, rather than to undertake a parallel inquiry.
Sixthly, Mr Chesson submitted that the letter from Mr Walsh is irrelevant to any application for admission. However, we consider that a complaint to a professional regulatory body in relation to an applicant for admission to legal practice is potentially relevant, at least, as to whether or not a compliance certificate should be issued.
Seventhly, Mr Chesson submitted that, if a direction is to be made by the Tribunal, it should be to the Board, rather than to him, and, in particular, should require the Board to decide his compliance certificate application in accordance with the information presently available. Mr Chesson pointed out that he did make certain disclosures to the Board which he considered to be relevant. However, as Mr Macknay submitted, it is appropriate for the Board to be able to consider all potentially relevant matters in relation to an application for a compliance certificate, even though the Board may be in a position to determine the compliance certificate application with the information presently available.
Eighthly, and similarly, Mr Chesson submitted that there is, in fact, a statutory basis within s 32 of the LP Act itself for the dismissal of his application for a compliance certificate because, as noted earlier, s 32(2) of the Act makes an applicant's failure to comply with a notice under s 32(1) of the Act a ground in itself for refusing to give a compliance certificate to the applicant. However, it is appropriate for the Board to consider the application for a compliance certificate more broadly and to address it fully on its merits. It is for that reason that the Board has sought the documents in the notice.
Finally, Mr Chesson argued that the application should be refused because it is, in effect, an attempt to obtain a further six months for the Board to consider his application. That argument is based on the terms of s 31(4) of the LP Act to which I have referred. It is unnecessary for the Tribunal to express a view as to whether, in fact, the issue of a notice under s 32 of the LP Act and/or compliance with such a notice would commence the six month period for a deemed refusal of the application again. That is because, even if we were to assume that the Board would obtain a further six months to assess the application and that an applicant such as Mr Chesson could not commence an application for review in the Tribunal of the refusal of a compliance certificate until the completion of that six month period, we are satisfied that the Board's decision to require compliance with the notice was proper. We are certainly not satisfied that the notice was issued for the purpose of obtaining any additional time in which to consider the application.

Conclusion

For all of the above reasons, in our view, there is both power and it is appropriate in all the circumstances to make an order requiring compliance with the notice given on or about 30 November 2011.

Order

The Tribunal makes the following order, being a final order disposing of this proceeding:
By 5 pm on 11 January 2012, the respondent must give to the applicant the documents specified in a notice dated 30 November 2011 required by the applicant under s 32(1)(a) of the Legal Profession Act 2008 (WA).

I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT