LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and QUIGLEY - [2005] WASAT 215

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: LEGAL PRACTICE ACT 2003 (WA)

CITATION: LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and QUIGLEY [2005] WASAT 215

MEMBER: JUSTICE M L BARKER (PRESIDENT)
MS M CONNOR (MEMBER)
MR C EDMONDS SC (SENIOR SESSIONAL MEMBER)

HEARD: 13, 14 AND 16 JUNE 2005

DELIVERED : 19 AUGUST 2005

FILE NO/S: VR 1 of 2003

BETWEEN: LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
Applicant
AND
JOHN ROBERT QUIGLEY
Respondent

Catchwords:

Legal practice - Legal practitioners - Unprofessional conduct - Whether practitioner engaged in intimidatory and threatening behaviour towards the Legal Practitioners Complaints Committee, its members and Law Complaints Officer - Whether disciplinary proceedings maintained for improper purpose or under dictation

Legislation:

Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA)

Bill of Rights 1689 (UK), Article 9
Interpretation Act 1984 (WA), s 36, s 37
Legal Practice Act 2003 (WA), Pt 12, s 162, s 164(1)(f)
Legal Practitioners Act 1893 (WA), s 25, 25(1)(c), s 27(2), s 27(3), s 28(1), s 29A
Parliamentary Privileges Act 1981 (WA), s 1
Parliamentary Privileges Act 1987 (Cth), s 16(2)
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), Div 72

State Administrative Tribunal Act 2004 (WA), s 167(4)

Result:

Practitioner guilty of unprofessional conduct; penalty to be determined

Category: B

Representation:

Counsel:

Applicant: Mr R J Davies QC
Respondent: Self-represented

Solicitors:

Applicant: Legal Practitioners Complaints Committee
Respondent: Self-represented

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

Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56
Legal Practitioners Complaints Committee and Quigley, unreported decision of the Legal Practitioners Disciplinary Tribunal, April 2002
Quigley (A Practitioner) v The Legal Practitioners Complaints Committee [2003] WASCA 228

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In 2003 the Legal Practitioners Complaints Committee referred a complaint to the then Legal Practitioners Disciplinary Tribunal concerning the professional conduct of Mr Quigley (the practitioner) in the course of responding to an earlier reference that the Complaints Committee had made to the Disciplinary Tribunal about statements made by the practitioner on the Howard Sattler radio programme in January 2000.
The Complaints Committee complained that in the course of responding to that earlier reference, the practitioner engaged in intimidatory and threatening behaviour towards the Complaints Committee, its members and the Law Complaints Officer.
The Complaints Committee also complained that by his conduct, the practitioner sought to fetter the jurisdiction of the Complaints Officer and the Committee in carrying out its statutory obligations by threatening to institute legal proceedings against the Committee, its members and the Complaints Officer.
The Tribunal received detailed documentary and other evidence concerning the conduct of the practitioner complained of between 2 January 2001 and early February 2002.
In letters from the practitioner to the Complaints Committee, its members and the Law Complaints Officer, the practitioner complained that matters alleged against him in the reference were incorrect and invited the Complaints Committee to withdraw its reference against him.
When in particular, the Complaints Committee failed to withdraw the reference against the practitioner, but amended the terms of the reference, the practitioner embarked on a course of conduct, including the writing of a number of letters, towards the Committee, its members and the Law Complaints Officer, as well as the Disciplinary Tribunal, asserting that the Committee, its members and the Law Complaints Officer had commenced and maintained the disciplinary proceedings against him for an improper purpose and that they continued to maintain the disciplinary proceedings against him at the dictation of Mr T E O'Connor QC, the then Chairman of the Anti‑Corruption Commission. Mr O'Connor QC had initially lodged a written complaint about what Mr Quigley had said on the Howard Sattler radio programme in 2000 and his complaint had led to the Complaints Committee making its own investigations into the practitioner's professional conduct in speaking on that radio programme.
As of 1 January 2005, the current reference was transferred from the Legal Practitioners Disciplinary Tribunal to the State Administrative Tribunal.
The Tribunal heard evidence relating to the Complaints Committee's complaints against the practitioner on 13, 14 and 16 June 2005.
The Tribunal found that the Complaints Committee's complaints against the practitioner were justified and found the practitioner guilty of unprofessional conduct as alleged in the first complaint in the reference, in that the practitioner had engaged in intimidatory and threatening behaviour towards the Committee, its members and the Complaints Officer. In these circumstances, the Tribunal did not find it necessary to deal with the second complaint.
The Tribunal found that there was no reasonable basis, or any basis, to the practitioner's allegations that the Complaints Committee, its members or the Law Complaints Officer had at any time acted with an improper purpose in bringing and maintaining the earlier disciplinary proceedings against the practitioner, or that they had acted at the dictation of Mr O'Connor QC in maintaining the disciplinary proceedings.
The Tribunal published reasons for its findings and indicated it would hear submissions from the Complaints Committee and Mr Quigley as to penalty.

Reference to Tribunal

The Legal Practice Act 2003 currently regulates legal practice and legal practitioners in the State of Western Australia. Complaints and discipline concerning legal practitioners are governed by Part 12 of the Act. Section 162 of the Act establishes the Legal Practitioners Complaints Committee. By the Act s 164(1)(f), the functions of the Complaints Committee include the function, "if the Complaints Committee considers it appropriate to do so, and whether or not it has conducted an inquiry, to institute professional disciplinary proceedings against a legal practitioner before the State Administrative Tribunal".
Prior to 1 January 2005, when the State Administrative Tribunal came into operation, s 164(1)(f) gave the Complaints Committee the same function, but provided for the institution of professional disciplinary proceedings against a legal practitioner before the Legal Practitioners Disciplinary Tribunal.
Prior to 1 January 2004, when the Legal Practice Act 2003 came into operation, complaints and discipline concerning legal practitioners was governed by the Legal Practitioners Act 1893 (WA). Under the 1893 Act, the Complaints Committee had similar functions to those it was given under the Legal Practice Act 2003 and the Complaints Committee was empowered to institute professional disciplinary proceedings in the Legal Practitioners Disciplinary Tribunal.
However, the standard of professional conduct expressed in the 1893 Act was and is different from that expressed in the 2003 Act. Under s 29A of the 1893 Act, the Disciplinary Tribunal was empowered to make a finding that a practitioner was guilty of, among other types of conduct, "unprofessional conduct".
By an amended reference to the Disciplinary Tribunal dated 29 October 2003, the Complaints Committee alleged, having regard to the 1893 Act that:
"1. The practitioner was guilty of unprofessional conduct between 2 January 2001 and 4 February 2002 at Perth in that following the issuing of reference Number 01 of 2001 [the first reference]… issued out of the Legal Practitioners Disciplinary Tribunal ([Disciplinary] Tribunal) against the practitioner by the Legal Practitioners Complaints Committee ('the Committee'), the practitioner engaged in intimidatory and threatening behaviour towards the Committee, its members and the Law Complaints Officer ('the Complaints Officer').
2. Further, that the practitioner was on or about 1 February 2002 guilty of unprofessional conduct at Perth in that following the issuing of the [first] Reference out of the [Disciplinary] Tribunal against the practitioner by the Committee the practitioner sought to fetter the jurisdiction of the Complaints Officer and the Committee in carrying out its statutory obligations by threatening to institute legal proceedings against the Committee, its members and the Complaints Officer."
The Complaints Committee in the reference particularised each of these allegations against the practitioner.
As to the first allegation, the particulars given comprise portions of the text of the following documents, conduct or statements:
(1)A letter dated 25 June 2001 from the practitioner to the Complaints Officer and the Committee.
(2)A letter dated 1 November 2001 from the practitioner to the Registrar of the Disciplinary Tribunal, a copy of which was sent to the Complaints Officer and the Committee.
(3)A letter dated 16 November 2001 from the practitioner to the Complaints Officer and the Committee.
(4) A letter dated 17 December 2001 from the practitioner to the Committee and the Complaints Officer.
(5)A letter dated 17 December 2001 from the practitioner to the Registrar of the Disciplinary Tribunal, a copy of which was sent to the Complaints Officer and the Committee.
(6)A second letter dated 17 December 2001 attached to a copy letter dated 18 December 2001 to the Registrar of the Disciplinary Tribunal, from the practitioner to the Committee and Complaints Officer.
(7)A third letter dated 17 December 2001 from the practitioner to the Complaints Officer and the Committee.
(8)The terms of a telephone message transmitted on 19 December 2001 by the practitioner to the Complaints Officer.
(9)A letter dated 21 December 2001 from the practitioner to the secretary of the Disciplinary Tribunal with a copy to the Committee.
(10)A letter dated 16 January 2002 from the practitioner to the Complaints Officer and the Committee.
(11)A letter dated 18 January 2002 from the practitioner to the Complaints Officer and the Committee.
(12)The conduct of the practitioner whereby he instructed his solicitors to write and despatch a letter dated 30 January 2002 to each of the Chairman of the Committee, the Committee Attention Ms D Howell and the Honourable Attorney General for Western Australia.
(13)The conduct of the practitioner on 1 February 2002 in swearing an affidavit that was filed in the Disciplinary Tribunal, detailing a proposed writ of summons with copies annexed thereto of letters dated 30 January 2002 to each of the Chairman of the Committee, the Committee attention Ms D Howell and the Honourable, the Attorney General when the Reference was still to be heard by the Disciplinary Tribunal and was listed for hearing on 5 February 2002.
(14)Relevant portions of the affidavit.
As to the second allegation, the Committee relied on the particulars in paragraphs (12), (13), and (14) of the preceding paragraph.
The reference, with all relevant particulars, including the text, conduct or statements complained of, is attached to these Reasons for Decisions as Annexure A.
The reference, as instituted under the 1893 Act, was effectively continued before the Disciplinary Tribunal under the 2003 Act. This followed from the combined effect of the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA) and Interpretation Act 1984 (WA) s 36 and s 37.
By reason of the operation of State Administrative Tribunal Act 2004 s 167(4)(c) on 1 January 2005 the reference was transferred to the State Administrative Tribunal.
The Tribunal has the same powers in relation to the matter as the former Disciplinary Tribunal could have exercised in respect of it under the 1893 Act.
On 13, 14 and 16 June 2005, the reference was heard before the Tribunal. The Complaints Committee was represented by Senior Counsel and the practitioner was self-represented.

The Practitioner's answer

The practitioner's answer to the reference developed in stages.
By the practitioner's letter to the Registrar of the Disciplinary Tribunal dated 4 February 2004, the practitioner explained that he had undertaken to file his answer with the Disciplinary Tribunal by that day, but that unfortunately he had been unable finally to edit his answer and "it will take some little while yet". In those circumstances he requested an extension to 9 February 2004 in which to lodge the "final version" of his answer. In the meantime, he forwarded to the Disciplinary Tribunal a draft of his answer. That draft comprised some 10 pages and was signed by the practitioner on the last page.
At the commencement of the hearing in this Tribunal, the practitioner stated that he thought his answer admitted that he wrote the letters complained of, although he was not sure about the letters said to have been written by his solicitors at the relevant times. He was unsure whether he signed those letters or if his solicitor had signed them. He said, however, that if he didn't sign the solicitor's letters they were written on his instructions.
The practitioner also admitted leaving the telephone message for the Complaints Officer just prior to Christmas 2001, as alleged in particular (8).
The practitioner then confirmed that his formal answer to the reference was a letter signed by him and dated 9 February 2004 and received by the Disciplinary Tribunal on 10 February 2004. The practitioner explained that the letter set out the relevant factual matters that he wished to bring to the Tribunal's attention and that it was made as a "pleading". The practitioner's answer as declared by him on 9 February 2004 is Attachment B to these reasons for decision.
It cannot be said that, by his written answer to the reference or his oral admissions at the hearing the practitioner admitted he was guilty of unprofessional conduct as alleged in the reference.
Rather, by his written and oral evidence, the practitioner appeared to suggest that: the conduct complained of by the Complaints Committee did not amount to unprofessional conduct because of the particular circumstances in which he wrote the letters and otherwise acted as he did; or that those particular circumstances excused his conduct.
The practitioner wished to emphasise that he believed, at material times, that the Complaints Committee had wrongly or unfairly maintained against him the first reference alleging unprofessional conduct and that should be taken into account when assessing his conduct.
In the first reference, the Committee had complained that, in an interview on the Howard Sattler radio programme on 11 January 2000, involving matters in which the practitioner was or had been professionally engaged, the practitioner had failed to give an objective account of a matter (referred to as the "boat allegation") in a restrained manner consistent with the maintenance of the good reputation and standing of the legal profession.
The practitioner said he believed the first reference had been commenced and maintained against him by the Complaints Committee at the instigation of Mr T E O'Connor QC, the then Chairman of the Anti‑Corruption Commission.
The first reference was heard by the Legal Practitioners Disciplinary Tribunal in February 2002 and was concluded with a finding by the Disciplinary Tribunal on 13 May 2002, that the practitioner had engaged in unprofessional conduct as alleged in the first reference because:
"… far from giving an objective account of the matter in which the Practitioner was or had been engaged in, the Practitioner, in the course of implementing his instructions through the forum of a popular morning talk-back programme in Perth, gave a misleading account of the matter in a highly sensational manner."

See Legal Practitioners Complaints Committee and Quigley, unreported decision of the Legal Practitioners Disciplinary Tribunal, April 2002, page 38.

The Disciplinary Tribunal reprimanded the practitioner and ordered him to pay the Complaints Committee's costs in the proceedings.

The essence of the Complaint Committee's case against the practitioner

The Complaints Committee acknowledges that, at material times, the practitioner was the subject of the first reference to the Disciplinary Tribunal. The Committee says, however, that the practitioner's conduct towards the Complaints Committee, its members and the Complaints Officer during the course of the conduct of the first reference proceedings in the Disciplinary Tribunal, amounted to unprofessional conduct; and the fact that the practitioner may have considered the maintenance of the first reference was wrong or unfair to him personally, did not justify his conduct at the time, and that his conduct was entirely unprofessional.

The practitioner's course of conduct

The first matter that the Complaints Committee relies on, as part of the sequence of letters and other conduct between 2 January 2001 and 4 February 2002, as constituting intimidatory and threatening behaviour towards the Committee, its members and the Complaints Officer, is a letter dated 25 June 2001 that the practitioner wrote to the Complaints Officer and the Committee. No other conduct between 2 January 2001 (which is the commencement of the relevant period identified in the reference) and the letter dated 25 June 2001, is the subject of any particulars. What happened on 2 January 2001 is that the first reference was referred to the Disciplinary Tribunal.
Accordingly, by the time the practitioner wrote the letter dated 25 June 2001 to the Complaints Officer and the Committee, he had been engaged in the first reference disciplinary proceedings for a period approaching six months.
A little more should be said about the first reference proceedings. As we have already noted, on 13 May 2002 the Disciplinary Tribunal found the practitioner guilty of unprofessional conduct as alleged in the first reference and reprimanded the practitioner. The practitioner appealed against the Disciplinary Tribunal's decision to the Full Court of the Supreme Court of Western Australia, which unanimously dismissed the appeal: Quigley (A Practitioner) v The Legal Practitioners Complaints Committee [2003] WASCA 228. As Parker J explained in The Full Court at [5] of his reasons, the conduct the subject of the adverse finding of the Tribunal constituted remarks made by the appellant in the course of an interview he gave, on the instructions of a client, then Detective Sergeant Coombs of the Western Australian Police Force, on a morning talk-back radio programme hosted by Mr Howard Sattler. At the time of this interview the appellant was also an endorsed candidate for the forthcoming State Parliamentary Election, having been endorsed by the then main opposition party.
On 11 January 2000, the practitioner took part in the Howard Sattler radio programme. On 7 February 2000, the practitioner met with Mr T E O'Connor QC, the then President of the Anti-Corruption Commission. Following this meeting Mr O'Connor made a written complaint about the practitioner's behaviour to the Complaints Committee.
Mr O'Connor's complaint against the practitioner, which was made on behalf of the Anti-Corruption Commission was dated 17 February 2000. It included allegations that (1) whilst the practitioner stated there had been no cover up by the Premier, he well knew that Mr Boucher had been appointed to inquire into the matter and that the practitioner had appeared before him (2) the 'boat allegation' had been investigated by Mr Boucher and found to be without substance. The complaint annexed a large volume of material including the Boucher Report.
The Complaints Committee eventually proceeded under the Legal Practitioners Act 1893 (WA), s 25(1)(c) itself to inquire into the conduct of the practitioner to determine whether his conduct may constitute unprofessional conduct. By letter dated 28 April 2000, the Complaints Committee advised the practitioner that the Committee had resolved to inquire into his conduct of its own volition. At that stage, the practitioner practised law with the law firm, Hammond Worthington Lawyers and the Committee's letter was directed to him at that firm.

By letter dated 30 May 2000 the practitioner, on Hammond Worthington letterhead, wrote to the secretary of the Complaints Committee advising that he had retained Senior Counsel to undertake the task of settling an answer and asking, on the advice of Senior Counsel, whether the inquiries made of the practitioner by the Committee were made of its own volition under s 25(1)(c) of the Legal Practitioners Act 1893 so that the answer given by the practitioner would be for the Committee's "eyes only" and that it would not be forwarded to "any other person". The practitioner went on to point out that the reason he asked this was to ensure that his reply would be seen only by the Complaints Committee and would not be provided to the Anti-Corruption Commission.
By letter dated 6 June 2000, Ms D Howell, the Complaints Officer, responded to the practitioners letter advising:
"The Committee will not undertake not to publish your response or any part thereof to any person outside the Committee - it does not know what, if any, inquiries may be necessary arising out of that response.
As earlier advised, the Committee enquiring of its volition into the conduct matters raised in Mr O'Connor's letter of complaint. The Committee will not send a copy of your response to Mr O'Connor QC at this time, as it intends to deal with it at its meeting this month.
However, there may be points arising out of your response, which the Committee will want to ask Mr O'Connor QC to explain and for this reason it may be necessary to send a copy of your response, or part thereof, to him. However, in that event, before referring any of your response to Mr O'Connor (or any other person outside of the Committee) the Committee will provide you with adequate notice of its intention to do so, so that you can consider your position.
Please let us have your response within the next 48 hours. If you will not provide the Committee with a response, the Committee will deal with the matter in the absence of information from you on it."
On this basis, the practitioner provided the Complaints Committee with his response.
Later, the Complaints Committee indirectly disclosed part of the practitioner's response to Mr O'Connor by providing to Mr O'Connor, an advice from Mr Zelestis QC to the Complaints Committee dated 14 September 2000 which referred to it.
Not long after the indirect disclosure of the practitioner's response to Mr O'Connor, the practitioner received a compulsory notice from the Anti‑Corruption Commission requiring him to appear before it. Litigation concerning the efficacy of the compulsory notice followed. The Tribunal understands that the notice was subsequently withdrawn by the Anti‑Corruption Commission.
The first reference was then issued on 2 January 2001.
The first reference, before it was later amended, did not repeat all of the complaints set out in the initial letter of complaint made by Mr O'Connor to the Complaints Committee, but was limited to whether the practitioner knew that the "boat allegation" was unfounded.
The practitioner's answer to the first reference dated 23 February 2001, included the response, in effect, that there was evidence that there was no real investigation by Mr Boucher and that his report was a "whitewash".
On 18 July 2001, the first reference was amended by the Complaints Committee. However, before that amendment was made the practitioner wrote the first letter now complained of in this reference, which was dated 25 June 2001. It was addressed to the Complaints Officer and the Complaints Committee. In it, as may be seen from the extracts set out in the particulars in Annexure A to these reasons, the practitioner expressed concern about the process which had led to the first reference being brought against him. He indicated he intended to take his concerns "to the public but to do so within the confines of the law and proper behaviour by both a legal practitioner and Member of the Legislative Assembly".
At the time the practitioner spoke on the Howard Sattler radio programme, he was not a Member of Parliament but a practising lawyer. He was, however, also an endorsed candidate for the Australian Labor Party for the forthcoming State General Election. In early 2001, at the State General Election, the practitioner was elected to the State Parliament as a member of the Legislative Assembly. Thus, at the time he wrote the letter dated 25 June 2001, he had the dual status of a legal practitioner and a Member of the Legislative Assembly.
The terms of the letter do not require any further particular comment, save to say that the practitioner, at that point, had become aware that the Complaints Committee had obtained the advice of Mr Zelestis QC, an independent barrister, which appeared to be favourable to the practitioner's position, and the practitioner had his own advice from Mr McCusker QC. As a result, the practitioner invited the Committee to discontinue the first reference disciplinary proceedings against him. The practitioner went so far as to suggest a deadline for the withdrawal of the proceedings by the Complaints Committee. On its own, this letter could hardly be suggested to be intimidatory or threatening. Senior Counsel of the Complaints Committee did not suggest that, on its own, it was. However, he said it was the relevant starting point from which to consider the whole course of conduct complained of in the present reference.
The Complaints Committee did not act on the practitioner's suggestion to discontinue the first reference. Rather, as noted, the first reference was amended on 18 July 2001 to include the following relevant particulars:
(1)That at all material times the practitioner acted for certain police officers;
(2) The practitioner well knew that (a) the Premier had not covered up the allegations and (b) those allegations had not otherwise been covered up;
(3)That on 3 September 1998 Mr Boucher received Statutory Declarations from police officers including Mr Coombs;
(4)The practitioner's clients had given evidence to Mr Boucher that the Boat Allegation was false.
Further and better particulars of the amended first reference were also provided, including that, "as best as the Legal Practitioners Complaints Committee is able to say", the practitioner represented the officers at the Boucher Inquiry. This particular was provided in response to a request for particulars from the practitioner. No further particulars were sought or provided in relation to the particular in (2) above.
At this point, from the practitioner's point of view, the first reference disciplinary proceedings were not going away; if anything they were intensifying. The Committee provided a Further Amended Reference dated 1 November 2001which, amongst other things, deleted particular (4) above. On 1 November 2001 the practitioner wrote to the Registrar of the Disciplinary Tribunal, with a copy to the Complaints Officer and the Committee, in which he referred to the:
"…second back flip by the Law Complaints Officer requiring an amended term of reference, thus making it important that this matter be formalised by way of an amended term of reference, because in the fullness of time I shall be demanding that an external agency fully investigate the conduct of the Law Complaints Officer. I shall allege serious impropriety against her and the Committee."
The practitioner then filed a "substituted defence" dated 15 November 2001, which included the following relevant answers:
(1)The practitioner attended a preliminary meeting with Mr Boucher, but otherwise denies that he represented the officers at the Boucher Inquiry;
(2)That he denies knowing that the Premier had not covered up the allegations and that the allegations had not otherwise been covered up;
(3)On the instructions of his clients, the Boucher Inquiry did constitute a cover up.
By this time, it appears the practitioner felt that the first reference were being maintained at the instigation of Mr O'Connor QC.
He also appears to have considered that the Complaints Committee should have been making its own, separate inquiries into what his clients' instructions to him at material times were, or properly considering his clients' statutory declarations as to their instructions or otherwise conferring with his clients about the question of instructions. The practitioner seems to have thought that, if the Committee had done any of those things, they would have appreciated that he acted on his clients' instructions and that the allegations against him were false and should be withdrawn.
In this context, by letter dated 16 November 2001, the practitioner wrote to the Complaints Officer and the Committee and complained about a denial of "natural justice" by the making of the first reference, without letting him explain the nature of the relationship between himself, police officers and other persons and the Boucher Inquiry. The practitioner considered he was the subject of a "false term of reference" and said that he would complain to the Commissioner of Police that the Committee, Complaints Officer and counsel were attempting to pervert the course of justice by prosecuting the first reference, the substance of which they knew to be untrue, and had no reason to believe was true.
In this letter dated 16 November 2001, the essence of the practitioner's beliefs at that point come through strongly. He suggested that the first reference initially filed was found to be wanting in the opinion of Mr Zelestis QC "who told you there was no reasonable prospect of success on that reference". As a result, the practitioner believed that the term of reference was amended "without ever coming to me to seek an explanation, without ever going to my clients to seek an explanation, and basing this new term of reference on your own invention and misrepresentation."
In this letter, the practitioner also stated that he wished to have the opportunity to reveal what he considered to be a "perversion of the course of justice" by having the opportunity in the Disciplinary Tribunal to produce evidence from the Complaints Officer. He requested the attendance of the Complaints Officer at a forthcoming hearing, in the following terms:
"Could you kindly ensure that at the next calling of this matter, the Law Complaints Officer is available to take the witness stand and swear if she dare, that she believes that all the matters in the reference are, to the best of her knowledge and belief to be true, and to afford me the opportunity to cross-examine her."
Not long after this, the Complaints Committee, by letter dated 30 November 2001, agreed, in effect, that the practitioner had not acted for the police officers at the Boucher Inquiry, so that this would not be in issue at the hearing. That letter also indicated that further agreement on other matters might be reached.
The practitioner then, by letter dated 17 December 2001, wrote to the Committee and the Complaints Officer noting that it was "foolish" for them to allege that he was acting for six police officers for the Boucher Inquiry without ever asking him or his clients whether in fact that was true, and that "I very much look forward to personally cross examining you as to why the Committee did this."
The practitioner then went on in the letter dated 17 December 2001 to note his letter to the Disciplinary Tribunal, and that:
"I will lodge a complaint of unprofessional conduct against you personally and against each member who sat on the Committee and voted to make these false allegations against me without every (sic) having to seek to clarify the truth of what they are saying that either me as the practitioner or the police in respect of whom they are making the allegations."
The practitioner, in this letter dated 17 December 2001, also expressed the view that the Committee was prima facie guilty of negligence, and that it had demonstrated "malice against me".
In the letter, the practitioner again noted that he required the Complaints Officer, and each Committee member, to attend the Disciplinary Tribunal hearing so that he could personally conduct cross-examination of each of them.
By this stage, there is little doubt that the practitioner believed the Complaints Committee was maintaining something of a vendetta against him and that it was motivated to do so by the complaint of Mr O'Connor and without regard to the need to investigate properly the matters the subject of complaint against him in the first reference.
It may be noted in passing, that while the practitioner was personally writing these letters - and it must be said that their content show no signs of having been tempered by his legal advisors in any way - the practitioner was still being formally represented in the disciplinary proceedings by counsel.
By a separate, second letter, dated 17 December 2001, the practitioner wrote to the Registrar of the Disciplinary Tribunal, with a copy to the Complaints Officer and the Committee, alleging that the Committee's conduct was unprofessional and that he would be making a complaint of unprofessional conduct against each member of the Committee, who was "responsible for this web of untruths that they have sought to peddle against me".
In his third letter dated 17 December 2001, the practitioner stated that he "suspected that the amended reference was in fact drawn by Mr Gilmour QC and not by the Committee". He then alleged that Mr Gilmour QC, like members of the Committee earlier, knew the allegations in the amended first reference were untrue or that there was no reasonable basis for them. It appears that Mr Gilmour, an independent barrister, had been retained by the Committee to advise in relation to the first reference.
In the second letter dated 17 December 2001, the practitioner again advised the Registrar (with copies to the Complaints Officer and the Complaints Committee) that he wished to cross examine them "on oath" in respect of the "false allegations against me" contained in the first reference.
In this separate, third letter, dated 17 December 2001, which was attached to a copy of a letter dated 18 December 2001 to the Registrar of the Tribunal, the practitioner wrote to the Committee and the Complaints Officer making "a formal complaint of unprofessional conduct against the Law Complaints Officer… and against each member of the Committee, being the Committee that resolved to make a new reference to the Disciplinary Tribunal on or about 14 July 2001".
Then, two days later, on 19 December 2001, the practitioner telephoned the Committee's office and asked the receptionist if he could speak to the Complaints Officer. When advised that the Complaints Officer was not available, the practitioner asked the receptionist to pass on a message to the Complaints Officer to this effect:
"I want to wish my co‑accused a very Merry Christmas and I relish the thought of the litigation next year."
At this point the practitioner seems to have thought that he was already in litigation with the Committee, its members and the Complaints Officer by reason of his letters stating he would be taking action against them or perhaps he simply thought the first reference was "the litigation".
Then, by letter dated 21 December 2001, the practitioner wrote to the Disciplinary Tribunal, with a copy to the Committee, and referred to seeing the members of the Committee "charged with perjury".
Lest there be any thought that the practitioner intended to leave his threats of external inquiry into the activities of the Complaints Committee and the Complaints Officer fall by the wayside in the new year, by letter dated 16 January 2002 the practitioner wrote to the Complaints Officer and the Committee to this effect:
"…please be assured that I do not intend to leave this matter at Complaint Committee level. I intend to take my complaint to the Ombudsman and possibly the Anti-Corruption Commission on a complaint of serious misconduct in that the Committee have made several allegations against me which they knew to be false or to have no reason to believe to be true."
Then, two days later, by letter dated 18 January 2002, the practitioner wrote to the Complaints Officer and the Committee stating that:
"Given the deceitful and malicious way, in which Ms Howell and the Committee have conducted themselves against me in this matter thus far, I regard this latest delay in acknowledging my complaint to be a very serious circumstance of unprofessional conduct.
Kindly acknowledge receipt of this complaint by return and set out the manner in which the Committee proposes to deal with it."
The practitioner then instructed his solicitors to write and despatch a letter dated 30 January 2002 to each of the Chairman of the Committee, the Committee attention Ms D Howell, and the Attorney General of Western Australia in nearly identical terms, to the effect that "the Committee has acted negligently [against the practitioner] in the discharge of its statutory duty, and has acted with malice against [him]".
This letter again set out something of the beliefs of the practitioner so far as the prosecution of the first reference was concerned. They were in terms quite similar to those set out in his third letter dated 17 December 2001. The purpose of the letter was stated to be the giving of formal notice to the recipients, under the Crown Suits Act1947 (WA), that the practitioner "presently intends to institute by way of a Writ of Summons out of the Registry of the District Court of Western Australia, an action of damages arising out of the Committee's negligent discharge of its duty".
On 1 February 2002, the practitioner swore an affidavit and filed it in the Disciplinary Tribunal, detailing his proposed writ of summons and annexed to the affidavit copies of the letters dated 30 January 2002 to each of the Chairman of the Committee, the Committee Attention Ms D Howell and the Attorney General. He did this at a time when the first reference was yet to be heard, but was listed for hearing on 5 February 2002.
What the particular purpose of filing the affidavit in the Disciplinary Tribunal was at that time, is difficult to say, other than that the practitioner wished to escalate the dispute, as he perceived it, between himself and the Committee, its Members and the Complaints Officer. Perhaps he hoped the Complaints Committee could succumb to pressure and decide to withdraw the first reference disciplinary proceedings soon to be heard in the Disciplinary Tribunal.
As it transpires the Disciplinary Tribunal proceeded to hear and determine the matter and handed down its decision on 13 May 2002, making the finding of unprofessional conduct referred to earlier.
The Disciplinary Tribunal found that the practitioner had given a misleading account in a highly sensational manner of matters pertaining to the Boucher Inquiry. By speaking of "cover up" in relation to certain allegations, without referring to the fact that there had been an inquiry by Mr Boucher, this gave rise to the misrepresentation. The Disciplinary Tribunal, at page 37 of its Reasons for Decisions, observed that:
"The statements made by the Practitioner, the subject of this complaint, made no mention of that reference to Boucher Inquiry. It was accepted by his Counsel that the practitioner had read the report produced by Mr Boucher. The particular matter under discussion on the Sattler program was the subject matter of a reference referred to Mr Boucher. His report was tabled in Parliament. No mention was made by the Practitioner that Mr Boucher had given reasons why he had made findings in relation to one officer and said he could not make findings against the other giving reasons. No mention was made by the Practitioner that the Union and its officers formally advised Mr Boucher that unless he was prepared to include other matters in his inquiry, they would not participate. No mention was made that the Practitioner was given instructions not to attend the inquiry, either for the Union or for any officer and therefore he had not produced the evidence which he said that he had."

However, on the question of whether or not there had been a "cover up", the Disciplinary Tribunal noted that:
"Views may well differ on whether there was a 'cover up' in general terms of many of the complaints being made by the Police Union and certain officers. A Practitioner is certainly entitled to assert his clients' views. However he is, in our opinion, obliged not to mislead and wholly misrepresent by omission the events which give a balanced account of what actually occurred.
When asked by Mr Sattler what did the Premier do as a result of the letter sent by the Practitioner 'two years ago', the practitioner could have and we find should have, stated that the Premier established the Boucher Inquiry. He could have then stated his clients' instructions with respect to that inquiry and explained his own views (so long as he had done it in an objective way)."
As a result, the Disciplinary Tribunal had "no hesitation" in finding the practitioner engaged in unprofessional conduct as alleged.
Following the Disciplinary Tribunal's decision, the practitioner appealed to the Supreme Court. The appeal was heard on 6 May 2003 and a reserved decision was delivered on 25 September 2003. The appeal was dismissed.
Prior to the disposition of the appeal proceedings, solicitors for the Complaints Committee wrote to the practitioner by two letters each dated 23 January 2003. In the first, the practitioner was advised of the Committee's decision to dismiss the practitioner's complaints of unprofessional conduct against the Committee and the Complaints Officer, including for proceeding against him without proper grounds and delay in dealing with that complaint. In the second, his response was sought to the matters the subject of the present reference. The second letter raised with the practitioner the manner in which he had conducted himself in the course of the first reference disciplinary proceedings in terms which are repeated in the particulars to this reference.
The practitioner responded by email dated 2 September 2003 to the Complaints Committee's request for a response. The text of the email answer is attached as Annexure C to these reasons for decision. In his email, as in the proceedings before this Tribunal, the practitioner acknowledged being the author of the various letters complained of. He also regretted "some of the phraseology and tone" used in parts of the correspondence. He then stated:
"I … unreservedly apologise for any particular offence taken by the Law Complaints Officer or anybody else.
At the time of writing the letters I was sick and had just been prescribed a new course of medication under specialist supervision.
At the time of writing the letters I was under enormous stress on this litigation. After having spent $60 000 in legal fees on this matter up to the end of 2001 the case against me was radically changed and a new complaint substituted by the [T]ribunal. I could therefore not afford to keep conducting the matter through solicitors, as I did not have the financial resources (whereas you had at your disposal taxpayers resources to assist you). I therefore had to do the best I could in very difficult circumstances and in retrospect did not make a good fist of the correspondence, a matter that I now regret and have apologised for."
The practitioner went on in his email to explain the reasons for his "sense of grievance" at the time. However, he then stated:
"I do not put these matters forward as justification for the untoward manner and tone of my letters but I stress I believed I had a genuine and serious grievance which I was desperately trying to address and that my sense of proportion was undoubtedly effected by my illness and medication and I certainly would not write those letters now and would not write them again."
The practitioner then added:
"For very good reason I do not now wish to go back through each letter paragraph by paragraph seeking to justify what is genuine grievance and what is excess rhetoric deserving particular apology now that I can see things in a more balanced light."

The practitioner's oral evidence to the Tribunal

The practitioner gave evidence to the Tribunal and was cross-examined by Senior Counsel for the Complaints Committee. His testimony repeated in substance the various allegations and his belief that he had "a genuine and serious grievance" of the type asserted earlier in the correspondence to which reference has already been made.
The practitioner also gave the Tribunal to understand that, at material times, not only did he consider that the first reference was commenced and maintained against him by the Complaints Committee and the Complaints Officer at the instigation of Mr O'Connor, but that it represented something of a conspiracy by certain persons who were members of the Complaints Committee or its adviser, and who were, at the same time, members of the Liberal Party. He believed they were set to cause him maximum grief in his campaign to be elected to the State Parliament as an endorsed Australian Labor Party candidate.
The practitioner also implied that by his conduct he was also seeking to effect changes to the way matters of legal complaint and discipline under the Legal Practitioners Act 1893 were conducted by the Complaints Committee. He considered he had experienced, at the hands of the Complaints Committee, the same kind of denial of natural justice that others, before him, had complained of. As a result he was anxious to reform the process by which complaints against legal practitioners were investigated and acted upon by the Committee.
The practitioner also raised a question, whether, because he was a Member of Parliament, and had addressed questions relating to his circumstances in the Parliament and using his Parliamentary letterhead, it was open to the Tribunal to consider his case having regard to the law of Parliamentary privilege.

The question of Parliamentary privilege

In written submissions made by the practitioner prior to the hearing in the Tribunal, the practitioner had raised the question whether the reference was "in contempt of Parliament". In a letter to the Associate of the President, dated 18 April 2005, for example, the practitioner raised this issue and stated there were two bases for doing so:
(1)The reference sought to discipline him for the contents of a speech he made in the Legislative Assembly.
(2)That the reference sought to discipline him for letters he had written as a member of Parliament, on letterhead provided by the Parliament, and in terms which made it abundantly clear he was writing as the Member for Innaloo and at no stage in the correspondence did he hold out that he was writing the letters as a legal practitioner.
The practitioner went on to explain that when he rose in the Legislative Assembly to raise this breach of privilege and contempt, he chose only to put a case forward on the basis of (1) as he was not then in possession of true copies of the original letters that he wrote, which were the subject of (2).
At an earlier stage of those proceedings, before its amendment, one of the particulars given by the Complaints Committee was that on 27 June 2001 the practitioner as a member of the Legislative Assembly gave a personal explanation to the Legislative Assembly of the events leading to his prosecution by way of the first reference and that he tabled a copy of the first reference and relevant documents in the Parliament.
However, the Complaints Committee later amended the present reference, by amended reference dated 29 October 2003 and removed that objectionable particular. Consequently, there is no longer any basis to a claim of contempt of Parliament on basis (1).
As to basis (2) suggested by the practitioner, on 13 June 2005 at the commencement of the hearing, the practitioner told the Tribunal that having discussed the question of Parliamentary privilege with "the Clerks", by which the Tribunal understood him to mean certain of the Clerks to the Parliament who are well versed in the law of Parliamentary privilege, he had been advised that he should not be arguing the question of Parliamentary privilege before the Tribunal. Apparently, the advice he received was that the "judge of the privilege of the Chamber, will be the Chamber itself".
The practitioner told the Tribunal:
"Now having spoken to the Clerks, what is clearly covered by Parliamentary privilege is speeches made in the House. And actions undertaken outside of the Chamber, which are closely connected and intended to be closely connected to proceedings that are going to happen within the Chamber, or anticipated to happen within the Chamber, there's all degrees of Parliamentary privilege. It would be my contention that that letter of 25 June 2001 has that nexis with the speech I made in Parliament, and the force of that argument is underpinned by the fact that both the Committee and the Chairman of the previous Tribunal… both said well they'd only ever issued the reference with that in it to keep it's temporal context, that is to put the Parliamentary speech into -- that's what he threatened to do in the letter, he in fact did. We are not seeking to have him punished for what he did in the Parliament, we are seeking to have him punished, or have him disciplined for what is in the letter that preceded what he said in Parliament, and giving notice that he was going to raise it in Parliament, so we keep that in."
After further addressing the question of what the view of the Clerks of the Parliament apparently is, and whether or not the first letter, the subject of the current particulars, that of 25 June 2001, could be considered by the Tribunal because it suggested that the practitioner might raise the issues referred to in it in the Parliament, Mr Quigley made it plain that he did not wish to press the issue of Parliamentary privilege in these proceedings in the Tribunal. He said:
"I don't want to argue it here, I want to argue it up there."
The Tribunal is of the view, as it expressed at the time that Mr Quigley made these comments or observations to it at the commencement of the hearing, that there is no issue of Parliamentary privilege surrounding the letter dated 25 June 2001. That letter simply advised the Complaints Officer and the Committee that the practitioner intended "to take my concerns to the public, but to do so within the confines of the law and proper behaviour by both a legal practitioner and a Member of the Legislative Assembly.".
Nor does the Tribunal consider the fact that the practitioner chose to write to the Complaints Officer, the Committee and others on letterhead disclosing that he was a Member of the Legislative Assembly raises any question of infringement of Parliamentary privilege by this Tribunal in considering this reference.
The Parliamentary Privileges Act 1891 (WA), s 1 endows the Houses of Parliament and their Members with all the privileges of the English House of Commons. The Parliamentary privilege often considered to be the single most important privilege is that enshrined in Article 9 of the Bill of Rights 1689, enacted by the English Parliament shortly after the accession of William III and Mary II to the throne. Article 9 provides:
"That the freedom of speech and debates for proceedings in Parliament ought not to be impeached or questioned in any court or place of out Parliament."
The responsibility for enforcing Article 9 falls on Houses of Parliament and also on courts of law: see generally Campbell E, "Parliamentary Privilege", Federation Press 2003, Ch 3. Courts recognised that Article 9 confers an immunity from legal liability for things said or done in the course of Parliamentary proceedings. Courts have also construed Article 9 as having placed proscriptions on the uses which maybe made by them of evidence of Parliamentary proceedings. What is often said to be unclear is what is covered by the expression "proceedings in Parliament" and what is meant by "impeached or questioned in any court … ".
So far as the practitioner is concerned, there is no question of these disciplinary proceedings looking at anything that he did or that happened physically inside the Parliament. However, it is sometimes said that the functions of Members of Parliament may go beyond participation in the formal proceedings of Parliament and some of their other activities can fall within the expression "proceedings in Parliament".
Members of Parliament, for example, provide assistance to constituents and gather information which may be relevant to Parliamentary business. In the course of performing their functions, Members may correspond with Ministers, and other agents of the executive arms of government and with members of the public. In their electorate and parliamentary offices many Members will maintain records of such correspondence and other files pertaining to their work as Parliamentarians.
Interestingly, s 16(2) of the Parliamentary Privileges Act 1987 (Cth) amplifies the meaning of proceedings in Parliament, for the purposes of Article 9 of the Bill of Rights, by stating that proceedings in the Federal Parliament include "the preparation of a document for the purposes of or incidental to the transacting of any … business of" of a House or Committee of the Federal Parliament.
However, apart from Article 9, there is no express statutory provision in Western Australia equivalent to s 16(2) of the Commonwealth Act.
The law relating to whether the correspondence or records of Members of Parliament is privileged in Court and related proceedings is discussed in Professor Campbell's book, "Parliamentary Privilege" (supra) at Ch 3. In Ch 3 at page 48, Professor Campbell notes that:
"In some circumstances, action taken in relation to the correspondence or records of the Member of Parliament may be adjudged by a House to be in contempt of Parliament in that it is an improper interference in members' free performance of their duties as members [footnote omitted]…
Action which may potentially be adjudged by a House (or its Committee of Privileges) to be in contempt of Parliament include execution by law enforcement officers of search warrants, resulting in the seizure of documents or other materials in the possession of a Member of Parliament [footnote omitted]. The mere initiation of court proceedings against a Member of Parliament in respect of the Member's correspondence, or the threat of such proceedings, may likewise be adjudged to be in contempt of Parliament if the action is assessed to be an improper interference with a Member's free performance of his or her functions as a Member of Parliament."
In the Tribunal's view there is nothing in this reference or the course of proceedings in this Tribunal concerning the practitioner's conduct in the course of the first reference, that directly or indirectly bears upon his free performance of his duties at material times as a Member of Parliament. At all times, the inquiry has been into the practitioner's conduct as a legal practitioner in the course of the conduct of the first reference disciplinary proceedings. The fact that the practitioner chose to write certain correspondence on his electorate letterhead, is neither here nor there. The content of the correspondence is entirely about the first reference disciplinary proceedings.
The Tribunal does not consider that the more general interest in reforming the processes of legal discipline and complaint in Western Australia that the practitioner said he harboured at material times, somehow converted his correspondence to do with the first reference disciplinary proceedings into his personal conduct as a legal practitioner, into a parliamentary matter. It is not open to suggest that this Tribunal's consideration of the correspondence he wrote somehow constitutes an improper interference in the free performance of his duties as a Member of Parliament.
In the Tribunal's view, so far as these disciplinary proceedings are concerned, no question of Parliamentary privilege or contempt of Parliament arises.

The question of unprofessional conduct

While, as we have noted, matters of complaint and discipline under the Legal Practice Act 2003 (2003 Act) are now dealt with by the State Administrative Tribunal, when this reference was commenced against the practitioner, the Legal Practitioners Act 1893 (1893 Act) governed questions of legal complaint and discipline. Notwithstanding, the replacement of the 1893 Act by the 2003 Act, the conduct of the practitioner complained of in this reference is governed by the 1893 Act.
By s 29A of the 1893 Act, in the exercise of its professional disciplinary jurisdiction, this Tribunal may make a finding that a practitioner has been guilty of "unprofessional conduct". As explained in Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56 71-72 and confirmed in Quigley v Legal Practitioners Complaints Committee (supra) at [12]:
"The notion of unprofessional conduct first found its place in s 20 of the Act when it was enacted in 1893. The court has long accepted and applied, in this context, the understanding of the notion of unprofessional conduct which was expressed by the Full Court of the South Australian Supreme Court in Re A Practitioner of the Supreme Court [1927] SASR 58; see for example in Re A Practitioner, unreported; FCt SCt of WA (Wallace, Brinsden and Smith JJ); Library Number 4989; 18 July 1983. It was usefully summarised at [3] by the Full Court as conduct that would reasonably be regarded as disgraceful or dishonourable by practitioners of good repute and competence, or that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence. The first limb of this summary includes, but is not confined to, conduct which occurs in the course of legal practice. The other limb necessarily relates to conduct in the course of legal practice because of the reference to 'professional conduct'. While the words should not be taken as necessarily an exhaustive or codified statement, the essence of the notion of unprofessional conduct is usefully revealed in these decisions."
In this reference the Complaints Committee puts its case on both limbs, that is to say, that the practitioner's course of conduct in relation to the Complaints Committee, and its members and Complaints Officer, is both "disgraceful and dishonourable" and "to a substantial degree fell short of the standard of professional conduct observed or approved by members of the profession".
In this case, it is clear that the practitioner strongly felt that he was the subject of an unjustified complaint about his conduct, following the complaint of Mr T E O'Connor QC to the Complaints Committee about what he, the practitioner, had had to say on the Howard Sattler radio programme. It is another question, however, whether the practitioner was justified in feeling as aggrieved as he apparently did by the commencement and maintenance of the first reference proceedings. And it is an entirely separate question whether however strongly the practitioner felt, he was, acting professionally, entitled to express his grievance to the Committee in the manner and in the language that he did.
It is clear that as a result of the early communications of the practitioner with the Committee, the initial reference was amended and it was accepted eventually that the practitioner did not appear for certain police officers at the Boucher Inquiry. When this was accepted by the Committee, the practitioner seems to have thought that the primary allegation of unprofessional conduct should have gone away altogether. However, as the ultimate finding of the Disciplinary Tribunal makes clear, the allegation of unprofessional conduct had to do with the question of how the "boat allegation" had been dealt with and the practitioner's failure to make any reference to the fact that the Boucher Inquiry had been held.

In the event, the Tribunal found the Reference to be proven.
FURTHER that the practitioner was on or about 1 February 2002 guilty of unprofessional conduct at Perth in that following the issuing of the Reference out of the Tribunal against the practitioner by the Committee the practitioner sought to fetter the jurisdiction of the Complaints Officer and the Committee in carrying out its statutory obligations by threatening to institute legal proceedings against the Committee, its members and the Complaints Officer.

PARTICULARS

The Applicant repeats paragraphs 12(a), 12(b) and 12(c) hereof.

DATED the day of October 2003.

Law Complaints Officer
for and on behalf of the Legal Practitioners Complaints Committee

Annexure B

Annexure C