Legal Practitioners Complaints Committee v Walton [No 2]

[2008] WASC 73

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   LEGAL PRACTITIONERS COMPLAINTS COMMITTEE -v- WALTON [No 2] [2008] WASC 73

CORAM:   MARTIN CJ

HEARD:   18 MARCH 2008

DELIVERED          :   18 MARCH 2008

PUBLISHED           :  6 MAY 2008

FILE NO/S:   LPD 3 of 2006

MATTER                :Legal Practice Act 2003 (WA) and Legal Practitioners Act 1893 (WA)

and

A Practitioner of this Honourable Court

and

Report dated 6 June 2006 by the State Administrative Tribunal to the Full Bench of this Honourable Court under the Legal Practice Act 2003 (WA), s 185(2)(a) and s 194 and Legal Practitioners Act 1893 (WA), s 29A(2) and s 30

BETWEEN:   LEGAL PRACTITIONERS COMPLAINTS COMMITTEE

Applicant

AND

JANET WALTON
Respondent

Catchwords:

Practice and procedure - Enforcement of judgment

Legislation:

Nil

Result:

Application granted

Category:    B

Representation:

Counsel:

Applicant:     Mr G M Slattery

Respondent:     No appearance

Solicitors:

Applicant:     Legal Practice Board

Respondent:     No appearance

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

Nil

1. MARTIN CJ:  I have been requested to provide reasons for the order which I made in Chambers on 18 March 2008 granting the Legal Practice Board leave to enforce the judgment of the Full Court dated 1 September 2006.  Reasons were not pronounced by me at the time the order was made, as there had been no appearance by the respondent.  These reasons are therefore my reconstruction of the reasons which caused me to make the order to which I have referred.

2. The application for the order was made by the Legal Practice Board by motion dated 12 March 2008.  The motion was supported by an affidavit of Ms Bethan Craig, deposing as to service of the application upon the respondent.  I was satisfied from the terms of that affidavit that service of the application had been effected in the manner agreed between the applicant and the respondent.  I was reinforced in that view by the fact that the respondent had provided submissions in opposition to the application.  I will refer to those submissions shortly.

3. The application was also supported by an affidavit of Mr Michael Ferguson.  That affidavit sets out the history of the matter, including the proceedings before the State Administrative Tribunal and in the Full Court of the General Division of the Supreme Court.  The affidavit also covers correspondence between the applicant and the respondent in respect of payment of the amounts which the respondent was ordered to pay pursuant to the decision of the Full Court.  I was satisfied from that affidavit, and from reviewing the annexures to that affidavit, that the respondent had failed and refused to comply with the orders of the Full Court.

4. As I have mentioned, the respondent provided written submissions, although she did not appear at the hearing of the application.  The written submissions are extremely difficult to follow.  They include an assertion that the order made by the Full Court should not be enforced because it creates a trust which is illegal, void and unenforceable.  I could not identify any sound basis for that assertion, which I rejected.

5. The submissions lodged by the respondent also proposed that the application be adjourned for 30 days, in order that she might file an affidavit deposing to an allegation of concealed fraud.  I took the view that any allegation of that kind would have to be made to the Full Court which pronounced the orders which the applicant sought to enforce, or perhaps on appeal to the High Court.  In any event, I formed the view that evidence of that kind was not relevant to the application to enforce the order of the Full Court, so long as the order of the Full Court remained in force and had not been recalled or overturned on appeal.  If the respondent had appeared at the hearing on 18 April 2008, I would have expressed that view to her, and sought her response to it.  However, she did not appear.

6. The submissions of the respondent also proposed that copies of the applications be served upon each of Thomas Hughes and the firm Hammond Worthington.  I could not see any basis for making an order of that kind and declined to make it.

7. It was for these reasons that on 18 March 2008 I made orders in terms of the application.