| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and AMSDEN [2013] WASAT 201 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) MR M SPILLANE (SENIOR MEMBER)
MS K KEMP (SESSIONAL MEMBER)
HEARD : 26 NOVEMBER 2013 DELIVERED : 26 NOVEMBER 2013 PUBLISHED : 13 DECEMBER 2013 FILE NO/S : VR 156 of 2013 BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE Applicant
AND
CHARLENE SHEILA AMSDEN
Respondent
Catchwords: Vocational regulation - Legal practitioner - Allegation of professional misconduct - Allegation of commencing and pursuing legal proceedings without any reasonable basis for doing so - Preliminary issue - Jurisdiction - Whether 'the matter' referred by Committee to Tribunal is limited or restricted by terms of resolution of Committee made in context of proposal to practitioner to deal with matter in Committee's summary jurisdiction - Whether 'the matter' is restricted
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to an allegation of unsatisfactory professional conduct - Whether 'the matter' does not contemplate aspects of allegations in amended application - Words and phrases: 'the matter' Legislation: Legal Profession Act 2008 (WA), s 421(2), s 424(1), s 424(1)(c), s 425, s 426, s 428, s 428(1), s 438(1)
Legal Profession Conduct Rules 2010 (WA), r 6(2)(b), r 6(2)(c), r 16, r 16(1), r 18(1) Result: The matter referred by the Committee to the Tribunal is not restricted or limited by the resolution of the Committee made in the context of a proposal to the practitioner to deal with the matter in the Committee's summary jurisdiction
The impugned paragraphs in the amended application are contemplated by the matter that was referred to the Tribunal
Summary of Tribunal's decision: At the commencement of the final hearing in relation to an allegation of professional misconduct against a practitioner concerning her conduct in commencing and prosecuting a proceeding against the complainant, counsel for the practitioner raised two preliminary issues.
The first issue related to the jurisdiction of the Tribunal. The practitioner alleged that 'the matter' that has been referred by the Committee to the Tribunal, within the meaning of and under s 428 of the Legal Profession Act 2008 (WA), is a matter limited or restricted by a resolution of the Committee that it made in the context of a proposal to the practitioner to deal with the matter in the Committee's summary jurisdiction. The practitioner did not consent to the Committee dealing with the matter in its summary jurisdiction. The effect of the practitioner's contention, if correct, is to restrict the matter to an allegation of unsatisfactory professional conduct as characterised in a document referred to in the Committee's resolution.
The Tribunal determined that the matter that has been referred to it is not restricted or limited by the Committee's resolution made in the context of its proposal to deal with the matter in its summary jurisdiction. In its resolution, the Committee merely expressed 'the preliminary view' (rather than 'satisfaction') that there is a reasonable likelihood that the practitioner would be found guilty by the Tribunal of unsatisfactory professional conduct. More fundamentally, on the proper interpretation of the Legal Profession Act 2008,
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'the matter' before the Committee which it referred to the Tribunal under s 428 of the Act cannot be limited or restricted under s 426 of the Act (relating to the Committee's summary jurisdiction) unless s 426 applies. That section can only apply if all of the conditions specified in s 426(1)(a) and (b) are met, including the relevant practitioner's consent to the exercise of power by the Committee under the section.
The Tribunal observed that a purposive interpretation arrives at the same result. Section 426 serves a beneficial purpose, both in terms of the public interest in reducing litigation and costs and private benefit to a practitioner. It would discourage the use of the summary procedure under s 426 by the Committee for 'the matter' referred by the Committee to the Tribunal under s 428, when the practitioner does not consent to the summary conclusion procedure, to be limited or restricted in terms of the Committee's resolution for the purposes of s 426.
The second preliminary issue involved the practitioner's contention that aspects of the amended application, which counsel for the practitioner characterised as allegations of inducement, pressure, intimidation and dishonesty, were not contemplated in 'the matter' referred to the Tribunal. The Tribunal determined that the impugned paragraphs of the amended application were contemplated by the matter. The matter involves an allegation that the practitioner's conduct in demanding payment and commencing proceedings against the complainant without any reasonable basis for doing so constitutes professional misconduct. The references in the amended application to inducement, pressure, intimidation and dishonest are simply particulars in support of the allegation of professional misconduct.
Category: B
Representation: Counsel:
Applicant : Ms KF BanksSmith SC with Ms P LeMiere
Respondent : Mr LA Tsaknis with Mr J Jacobson
Solicitors:
Applicant : Law Complaints Officer
Respondent : Hotchkin Hanly
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Case(s) referred to in decision(s):
Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 The following are the Tribunal's reasons in relation to a preliminary issue as to jurisdiction raised by the practitioner at the commencement of the hearing. 2 The practitioner has raised an issue as to the jurisdiction of the Tribunal in relation to the matter referred to it by the Legal Profession Complaints Committee (Committee) under s 428 of the Legal Profession Act 2008 (WA) (LP Act). Section 428 of the LP Act states as follows: 3 The practitioner's primary contention is that 'the matter' within the meaning of s 428(1) of the LP Act that has been referred to the Tribunal in this case is a matter limited or restricted by the resolution of the Committee on 5 March 2013. The resolution was made in the context of a proposal by the Committee to the practitioner to deal with the matter under the summary jurisdiction of the Committee prescribed by s 426 of the LP Act. 4 In the alternative, the practitioner contends that if 'the matter' was not so limited or restricted, then it nevertheless does not contemplate aspects of the particulars in the amended application filed by the Committee on 23 October 2013 and, in particular, does not include allegations characterised by counsel for the practitioner as allegations of inducement, pressure, intimidation and dishonesty. 5 We will firstly refer to the relevant factual background and the statutory framework before addressing the practitioner's alternative contentions.
Factual background 6 On 15 June 2012, Mr A made a complaint about the practitioner to the Committee. While the complaint raised a number of issues, it (Page 6)
included a complaint about the practitioner's attempt to 'force us to pay her legal fees, filing, service fees and SAT costs'. 7 The complaint by Mr A was made on the day after a proceeding commenced by the practitioner in the Magistrates Court against Mr A and his partner was dismissed by a magistrate. Prior to the commencement of the proceeding, the practitioner had demanded payment by Mr A and his partner of the sum of $2,022 and had then commenced proceedings in the Magistrates Court of Western Australia for payment of that amount. The amount of $2,022 related to legal fees incurred by the practitioner in relation to a dispute about an airconditioner that had been installed by Mr A and his partner on the outside wall of a strata unit that he and his partner owned in a strata complex where the practitioner owned two of the three units. The amount of $2,022 also included the filing fee of $66 for the commencement of a proceeding in this Tribunal by the practitioner against Mr A and his partner, under the Strata Titles legislation, in relation to the air-conditioning unit. 8 Within a few days of receiving the complaint, on 20 June 2012, an officer of the Committee wrote to the practitioner indicating that Mr A 'has expressed concern at your actions in pursuing a claim for costs against him'. The officer referred, amongst other provisions of ethical guidelines, to guidelines proscribing a practitioner from making 'a demand for payment without first satisfying yourself that there is a reasonable basis for making such a demand'. 9 On 11 September 2012, the Committee wrote to the practitioner, referring to the complaint and stating: The complaint alleges that you engaged in possible unsatisfactory professional conduct or professional misconduct by commencing proceedings against him in the Perth Magistrate's Court without any reasonable basis for doing so. 10 On 4 December 2012, the matter of the complaint came before the Committee. The minutes of the meeting of the Committee on 4 December 2012 state as follows: This matter was before the Committee to consider a complaint that the practitioner engaged in unsatisfactory professional conduct or professional misconduct by personally commencing proceedings in the Perth Magistrate's Court without any reasonable basis for doing so. 11 At its meeting on 4 December 2012, the Committee resolved to defer consideration of the complaint pending further inquiries. (Page 7)
12 On 5 March 2013, the Committee considered the matter again. The minutes of the meeting of the Committee on 5 March 2013 state as follows: This matter was before the Committee for further consideration of a complaint that the practitioner engaged in unsatisfactory professional conduct or professional misconduct by personally commencing and pursuing proceedings in the Perth Magistrates Court without any reasonable basis for doing so. 13 The minutes of the meeting of the Committee on 5 March 2013 record the following resolutions: The Committee resolved that it: (i) has completed its investigation into the practitioner's conduct; (ii) is of the preliminary view that there is a reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of unsatisfactory professional conduct on the Ground of Unsatisfactory Professional Conduct which was before the meeting as amended and approved; (iii) is satisfied that the practitioner is generally competent and diligent; and (iv) is satisfied that the taking of action under Section 426 is justified. The Committee further resolved that the practitioner be advised of the above and that the Committee proposes to exercise its powers under Section 426(2) and Section 448(2), if applicable, if the practitioner consents to this course. 14 The 'Ground of Unsatisfactory Professional Conduct' referred to in paragraph (ii) of the Committee's first resolution made on 5 March 2013 is a reference to a document that was provided to the practitioner under cover of a letter from the Committee dated 12 March 2013 which recounted the resolution made by the Committee on 5 March 2013. The Ground of Unsatisfactory Professional Conduct states as follows: Between December 2011 and June 2012, or thereabouts, the practitioner, CHARLENE SHEILA AMSDEN (the practitioner) in commencing and prosecuting a minor case claim against WDA (the complainant) in the Magistrates Court of Western Australia, when there were no reasonable grounds for doing so, demonstrated a conduct 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. (Page 8)
15 Paragraph 16 of the paragraphs that follow recounts a conclusion that: The practitioner's conduct in commencing and prosecuting the Magistrates Court action, when there were no reasonable grounds for doing so, demonstrated conduct 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. 16 The letter from the Committee to the practitioner dated 12 March 2013 requested the practitioner to advise the Committee within 28 days as to whether she would consent to the Committee making a decision under s 426(2) of the LP Act. In her letter dated 15 March 2013 to the Committee, the practitioner stated as follows: 17 On 7 May 2013, the Committee again considered the matter. The minutes of the meeting of the Committee on 7 May 2013 state as follows: This matter was before the Committee to further consider an allegation that the practitioner commenced proceedings in the Perth Magistrates Court without any reasonable basis for doing so. The practitioner has been offered, but has not consented to, the exercise of summary conclusion by the Committee. 18 The minutes of the meeting of the Committee on 7 May 2013 record the following resolution: The Committee resolved that this matter should be heard by the State Administrative Tribunal and accordingly resolved to refer the matter to the Tribunal, and approved the issue of an Application to the Tribunal in a form to be settled by Mr JRB Ley, Mr T Lampropoulos SC and Mr RM Mitchell SC in due course.
Statutory framework 19 Any person who has or had a direct personal interest in matters alleged in a complaint may make a complaint about an Australian legal practitioner to the Committee under s 410 of the LP Act. 20 Section 421(2) of the LP Act requires the Committee to investigate each complaint. Section 424(1) of the LP Act states as follows: (Page 9)
After an investigation under section 421 is completed, the Complaints Committee must (a) in the case of the investigation of a complaint, dismiss the complaint under section 425 or, in the case of an investigation on the initiative of the Complaints Committee, decide to take no further action; or (b) take action under section 426; or (c) refer the matter to the State Administrative Tribunal under section 428. 21 Section 426 prescribes a procedure for summary conclusion of the complaint procedure. Section 426(1) of the LP Act is in the following terms: 22 As noted earlier, although the Committee proposed to the practitioner that the matter be dealt with under the summary conclusion procedure in s 426 of the LP Act, the practitioner did not consent to that course. The Committee, therefore, under s 424(1) of the LP Act, having not dismissed the complaint under s 425 or taken action under s 426 (as it was incapable (Page 10)
of doing so in the absence of the practitioner's consent), was required by paragraph (c) of s 424(1) to: refer the matter to the State Administrative Tribunal under section 428. 23 We set out s 428 earlier. 24 Finally, in terms of the statutory framework, s 438(1) of the LP Act states as follows: The State Administrative Tribunal has jurisdiction to make a finding that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct.
Is 'the matter' that has been referred to the Tribunal limited or restricted by the resolution of 5 March 2013? 25 Mr L A Tsaknis of counsel for the practitioner submits that the effect of the resolution of 5 March 2013 is to limit or restrict 'the matter' that can be and was referred to the Tribunal by the Committee under s 428, to an allegation of unsatisfactory professional conduct rather than professional misconduct, for the purposes of the LP Act, and specifically in terms of the Ground of Unsatisfactory Professional Conduct set out in the document referred to earlier at paragraph 16. As noted, that paragraph states: The practitioner's conduct in commencing and prosecuting the Magistrates Court action, when there was no reasonable grounds for doing so, demonstrated conduct 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. 26 This is a statement of the second limb of the common law concept of unprofessional conduct as restated by the Supreme Court Full Court in Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 (Kyle) at [61] . 27 Mr Tsaknis's primary submission in support of the practitioner's contention is that, in submitting a proposal to the practitioner to proceed to summary resolution of the complaint under s 426 of the LP Act, the Committee 'must have been satisfied' that all of the conditions in s 426(1)(a) and (b) were met in the circumstances of this case, including in particular in terms of paragraph (a)(ii), that 'there is a reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of unsatisfactory professional conduct (but not professional misconduct)'. (Page 11)
28 The short answer to Mr Tsaknis's submission is that it is plain, on the face of the resolution of the Committee made on 5 March 2013, that it did not form the requisite view that it was satisfied that there is a reasonable likelihood that the practitioner would be found guilty of unsatisfactory professional conduct by the Tribunal, much less that there is a reasonable likelihood that the practitioner would not be found guilty by the Tribunal of professional misconduct. 29 Rather, the Committee resolved that it was of 'the preliminary view' that there was a reasonable likelihood that the practitioner would be found guilty by the Tribunal of unsatisfactory professional conduct. The expression by the Committee that it formed 'the preliminary view' in that regard is to be contrasted with the Committee's expression in paragraphs (iii) and (iv) of the resolution for the purposes of paragraph (a)(iii) and (iv) of s 426(1) of the LP Act, namely that the Committee 'is satisfied' that the practitioner is generally competent and diligent and that the taking of action under s 426 is justified. 30 Furthermore, it is not the case that the Committee 'must have been satisfied' of the condition in para (ii) of s 426(1)(a) of the LP Act in order to propose a summary resolution of a complaint to a practitioner. A summary resolution could not proceed in any case unless the practitioner consents to that course. It is open to the Committee to defer a consideration of whether it is, in fact, satisfied that the condition in para (ii) of s 426(1)(a) of the LP Act is met until a practitioner confirms their consent to the exercise by the Committee of its power under s 426. 31 The LP Act does not state that the conditions set out in s 426(1)(a) and (b) have to be met at the same time. Indeed, they cannot be met at the same time as, at the very least, the practitioner must indicate consent. Moreover, given the evident beneficial purpose of s 426, to avoid matters about practitioners being referred to the Tribunal for hearing and resolution if they are of a relatively minor nature, and the practitioner consents to summary determination, it would significantly limit the utility of s 426 by discouraging the Committee from contemplating such a course if the practitioner's submission in this case were accepted. 32 The more substantive answer to the practitioner's contention is that, on the proper interpretation of the LP Act, 'the matter' before the Committee which is referred to the Tribunal under s 428 of the LP Act cannot be limited or restricted under s 426 unless that section applies. In order for that section to apply, all of the conditions in paragraphs (a) and (Page 12)
(b) have to be met. In this case, as we have said, the conditions in paragraph (a)(ii) and (b) were not met. 33 Under s 424(1) of the LP Act, the Committee could not, therefore, take action under s 426, and was obligated to: 34 A purposive interpretation of the legislation arrives at the same result. As we have observed, s 426 has a beneficial purpose to enable relatively minor complaints about legal practitioners to be summarily determined by the Committee, with the consent of the practitioner, without the practitioner being the subject of a referral for hearing and determination before the Tribunal. 35 Clearly the section, that is s 426, serves a beneficial purpose both in terms of the public interest in reducing the extent of litigation and the costs incurred by both the Committee and the practitioner, as well as the State, and in terms of private benefit to the practitioner in having the matter dealt with without the matter being the subject of a public hearing before the Tribunal. It would discourage the use of the summary procedure under s 426 by the Committee for 'the matter' referred by the Committee to the Tribunal under s 428, where the practitioner does not consent to the summary conclusion procedure, to be limited or restricted in terms of the Committee's resolution for the purposes of s 426. 36 We therefore find that 'the matter' that has been referred to the Tribunal is not as restricted or limited in the resolution of the Committee of 5 March 2013.
Are the impugned paragraphs in the amended application contemplated by 'the matter' that has been referred to the Tribunal? 37 Mr Tsaknis submits that amendments to the application, although made with the leave of the Tribunal and without complaint by the practitioner until 22 November 2013, in terms of the Committee's amended application filed on 23 October 2013, raise allegations against the practitioner that are not contemplated within 'the matter' that has been referred by the Committee to the Tribunal. 38 In particular, Mr Tsaknis submits that the matter referred by the Committee to the Tribunal involves only an allegation of incompetence. (Page 13)
Mr Tsaknis submits that amendments made to the application on 23 October 2013, in terms, in particular, of paragraphs 21 and 23, fall outside the scope of the matter that was before the Committee and referred to the Tribunal. Paragraph 21 of the amended application states that: In the circumstances, the practitioner engaged in conduct which would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence or 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. 39 This is an allegation of professional misconduct in terms of the first limb of the restatement of the common law concept of unprofessional conduct in Kyle. The particulars of this allegation are: (a) A reasonably competent practitioner: (i) would not make a demand in a letter or issue proceedings seeking to induce and pressure payment for costs which were not payable; (ii) would not issue proceedings without any proper foundation; (iii) would not issue a demand or proceedings when the Rules and authorities make it clear that no demand should be made for costs where there is no right to payment; (iv) would not occupy the court's time and that of a defendant with proceedings of no substance; (b) the particulars below with respect to the Rules are also referred to. 40 Paragraph 23 of the application, as amended on 23 October 2013, states as follows: Further, in the circumstances, the practitioner engaged in conduct by which she attempted to further her interests in her dispute with WDA by unfair or dishonest means contrary to rule 16(1) of the Rules and contrary to the intent of rule 18(1). 41 The reference to the Rules in this paragraph is a reference to the Legal Profession Conduct Rules 2010 (WA) (LPC Rules). Rule 16(1) of the LPC Rules states that: A practitioner must not attempt to further a client's matter by unfair or dishonest means. (Page 14)
42 Rule 18(1) of the LPC Rules states that: A practitioner must not, in a letter of demand for debt written on behalf of a client or another person, claim costs from the other person unless the client has a right to recover those costs. 43 The particulars to paragraph 23 of the amended application state: It was unfair or dishonest to allege and pursue by proceedings an unjustified entitlement to payment of legal costs. It is not to the point that the matter was her own and not that of an independent client. 44 The application as originally filed by the Committee on 9 August 2013 did not refer to the practitioner having sought to induce and pressure payment for costs which were not payable and did not refer to r 16(1) or r 18(1) of the LPC Rules and to the particular that it was 'unfair or dishonest' to allege and pursue by proceedings an unjustified entitlement to payment of legal costs. 45 We do not accept Mr Tsaknis's submission that the matter before the Committee, and as referred to the Tribunal under s 428 of the LP Act, was ever restricted or limited to an allegation of incompetence on the part of the practitioner. It is abundantly clear from the factual background to which we have referred in these reasons that the matter, as characterised by the Committee, on the basis of the complaint, from the outset of its investigation related to the practitioner's conduct as stated in the Committee's grounds in both its original application and its amended application filed on 23 October 2013, namely: THAT the practitioner, CHARLENE SHEILA AMSDEN (the practitioner) between December 2011 and June 2012, or thereabouts, engaged in professional misconduct within the meaning of sections 403 and 438 of the Legal Professional Act 2008 (WA) (LPA) in that her conduct in demanding payment from [names redacted] (WDA) of an amount of $2,022 and then in commencing and prosecuting a minor case claim against WDA in the Magistrates Court of Western Australia (Civil Jurisdiction), held at Perth (Magistrate Court proceedings) for payment of the said amount of $2,022 … 46 It was always at the essence of the matter that the conduct complained of by the complainant and the subject of the investigation and referral involved the practitioner's conduct in demanding payment of $2,022 and then commencing and prosecuting a minor claim in circumstances where there was not any reasonable basis for doing so. Whereas the application originally filed characterised the conduct of the practitioner as involving a substantial failure to reach a reasonable (Page 15)
standard of competence and a breach only of r 6(2)(c) of the LPC Rules, the amended application characterises the conduct as constituting unprofessional conduct at common law within each limb of the restatement in Kyle and a breach of r 6(2)(c) as well as r 6(2)(b) and r 16 of the LPC Rules. 47 However, 'the matter' remains the practitioner's conduct in demanding payment and then in commencing and conducting a minor claim in the Magistrates Court without any reasonable basis for doing so. The matter was never restricted to an allegation that the practitioner was merely incompetent, as submitted by Mr Tsaknis; rather, the matter before the Committee and before the Tribunal involves an allegation that the practitioner's conduct in demanding payment and commencing and conducting proceedings without any reasonable basis for doing so constitutes professional misconduct. 48 The references in the amended application to inducement, pressure, intimidation and dishonesty, in terms of paragraphs 21 and 23 of the amended application, are simply particulars in support of the allegation that the practitioner engaged in professional misconduct by engaging in unprofessional conduct at common law and further or alternatively breaching certain rules of the LPC Rules. 49 The references to inducement, pressure, intimidation and dishonesty are not made in the amended application for any independent purpose outside the matter that has been before the Committee and is now before the Tribunal involving an allegation of professional misconduct for having made a demand for payment and then commencing and prosecuting the claim in the Magistrates Court without any reasonable basis for doing so. 50 We therefore consider that the impugned paragraphs in the amended application are contemplated by 'the matter' that was referred to the Tribunal.
Orders 1. The preliminary jurisdictional issue is dismissed. 2. Costs of the preliminary jurisdictional issue are reserved. 3. The matter is referred to mediation pursuant to s 54(1) and (3) of the State Administrative Tribunal Act 2004 (WA) to commence at 2.30 pm today before Senior Member Spillane. (Page 16)
4. If a further hearing date is required then the Tribunal will list the date administratively upon being provided with the parties' available dates during the first quarter of 2014. |