LEGAL PROFESSION COMPLAINTS COMMITTEE and GANDINI - [2013] WASAT 31

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION: LEGAL PROFESSION COMPLAINTS COMMITTEE and GANDINI [2013] WASAT 31

MEMBER: JUSTICE J A CHANEY (PRESIDENT)

HEARD: 5 FEBRUARY 2013

DELIVERED : 5 FEBRUARY 2013

PUBLISHED : 1 MARCH 2013

FILE NO/S: VR 183 of 2010

BETWEEN: LEGAL PROFESSION COMPLAINTS COMMITTEE
Applicant
AND
LEONARD GANDINI
Respondent

Catchwords:

Practice and procedure - Application to set aside orders - Whether original orders made in circumstances of denial of procedural fairness

Legislation:

Legal Profession Act 2008 (WA)
State Administrative Tribunal Act 2004 (WA), s 9, s 105

Result:

Application dismissed

Summary of Tribunal's decision:

The applicant Mr Gandini had previously applied to the Tribunal to withdraw submissions by his counsel and replace those submissions with new submissions in writing. The Tribunal refused the application but gave leave to him to file supplementary submissions addressing his concerns as to his counsel's oral submissions. An application for judicial review of that refusal was dismissed at the order nisi stage. An appeal to the Supreme Court against the refusal was withdrawn. Mr Gandini then applied to the Tribunal, differently constituted, to set aside the refusal on the basis that, in refusing his application to withdraw the oral submissions, the Tribunal denied him procedural fairness.
The Tribunal concluded that, although it would have jurisdiction to set aside its orders if it had denied procedural fairness in making those orders, the determination in the order nisi proceedings had finally resolved that question. It was not now open to reconsider whether procedural fairness had been denied. The Tribunal noted that, in any event, nothing in the present proceedings suggested that the Supreme Court's decision that procedural fairness had been provided was wrong.
Accordingly the application was dismissed.

Category: B

Representation:

Counsel:

Applicant: Ms PE Le Miere
Respondent: Self-represented

Solicitors:

Applicant: Law Complaints Officer
Respondent: Self-represented

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

Gandini v The Legal Profession Complaints Committee [2012] WASC 428
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

REASONS FOR DECISION OF THE TRIBUNAL:

(Taken from the transcript of reasons delivered orally immediately following the hearing and edited in minor respects.)

Introduction

This application was lodged on 1 November 2012 and seeks orders that the Tribunal revoke earlier orders made by the Full Tribunal on 1 August 2012 and, in lieu of those orders, give a direction that the practitioner have leave to withdraw oral submissions made by his counsel on 17 July 2012 and certain other consequential orders relating to steps that have already been taken in the proceedings.
The essential proposition which the respondent, Mr Gandini, puts forward is that, when the Tribunal gave its directions on 1 August 2012, it did so in circumstances which denied him procedural fairness in several respects. The first and really, it seems, the principal complaint that is made is that the Tribunal refused to accept two affidavits which were available, although not in the hearing room, for presentation, which set out the particular concerns which Mr Gandini had about earlier proceedings when he was represented by counsel on 17 July 2012.
The second ground which is suggested in some of the papers is that Mr Gandini was denied procedural fairness because his counsel, on 1 August 2012, was required to make submissions without the benefit of the transcript of the hearing on 17 July 2012 which had been ordered but not obtained by that time. Thirdly, there is some suggestion in the oral submissions, and it is touched on in the written submissions as well, that there was a limitation, in effect, put on counsel on 1 August 2012 by reason of a requirement of the Tribunal that counsel, Mr Rynne, who represented Mr Gandini on 17 July 2012, be present whilst submissions were being made which, in effect, were potentially critical of him.

Jurisdiction to make the orders sought

Mr Gandini acknowledges in his written submissions that the jurisdiction of the Tribunal to revoke an earlier decision which it has made and effected by the issue of orders does not, or cannot, be found to arise in either the provisions of the State Administrative Tribunal Act 2004 (WA) (SAT Act) or the enabling Act relevant to these proceedings, which is the Legal Profession Act 2008 (WA). Rather, he argues that the decision should be revoked because, in reaching it, the Tribunal acted in breach of the rules of natural justice, which the SAT Act directs the Tribunal to have regard to and apply.
He relies on various authorities, the principal of which is Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, which, broadly speaking, is authority for the proposition that, where a Tribunal apprehends itself to have acted outside its jurisdiction, or for want of jurisdiction, by reason of breaching rules of procedural fairness, it has the capacity to remake an earlier decision made, which is affected by those defects, notwithstanding the lack of any statutory basis to do so.
I accept that if the Tribunal were satisfied that it had acted in breach of rules of natural justice it could, on the basis of that authority, remake its decision and substitute a new decision for that which was reached in breach of those rules.
There is, however, a fundamental difficulty with Mr Gandini's application and it is revealed by a consideration of the history of these proceedings, which I will briefly recount.

The history of the proceedings

The proceedings concern an application for disciplinary action against Mr Gandini by the Legal Profession Complaints Committee (Committee). The substantive application was dealt with at a hearing on 6 March and 7 March 2012, at the conclusion of which the hearing was adjourned for the parties to provide written closing submissions, which were to be exchanged and then supplemented by oral submissions on a date subsequently to be fixed.
Eventually, written submissions were filed by each party and, on 17 July 2012, the hearing was reconvened in order to hear the closing submissions of the parties, which essentially provided the parties with the opportunity to respond to the matters dealt with in each other's written submissions. It is clear from the materials which have been filed that, whilst Mr Gandini was present during the course of that hearing on 17 July 2012, at which he was represented by counsel, Mr Rynne, he was unhappy with the content of Mr Rynne's oral submissions and, broadly speaking, the manner in which Mr Rynne responded to questions of the Tribunal and failed to mention certain matters which Mr Gandini considered ought to have been addressed in response to the Committee's submissions.
As a result of that concern, Mr Rynne's retainer as counsel was terminated and an application was made to the Tribunal essentially seeking orders that the oral submissions by Mr Rynne be withdrawn and be substituted with further written submissions to be filed. That application was dealt with by the Tribunal, constituted as it was for the hearing of the substantive matter, on 1 August 2012. At that hearing, Mr Gandini was represented by new counsel, Mr Lourey, who was a member of the firm of solicitors who were acting at the time for Mr Gandini and had been acting as instructing solicitors for Mr Rynne at the time of the hearing on 17 July 2012.
In seeking to have the submissions withdrawn, Mr Gandini's solicitors wrote to the Tribunal and indicated that Mr Gandini had concerns about the submissions that had been made by Mr Rynne in five respects. They were as to comments which he made, as to concessions which he made, as to his response to the closing submission of the Committee, as to his answer to queries from the Tribunal on 17 July 2012, and as to matters which he omitted to address on that date.
The Tribunal, after hearing from Mr Lourey, dismissed the application to file written submissions in lieu of the oral submissions, but gave leave to file and serve short supplementary written submissions dealing with the five areas of concern which had been identified in the correspondence as the areas of concern which led to the application being made. Those submissions were to be filed within seven days. Pursuant to that leave, submissions were ultimately filed on 15 August 2012. They run to some 26 pages.
It is clear from the materials that, at the time that the application to substitute submissions was heard on 1 August 2012, Mr Gandini was not yet in possession of a copy of the transcript, which had been ordered, of the hearing on 17 July 2012. As I have said, the practitioner filed supplementary written submissions in accordance with the order.
On 28 August 2012, he lodged an appeal to the Court of Appeal against the order of 1 August 2012. On 5 September 2012, he applied for a stay of the orders. The stay application came before Murphy J on 18 September 2012 and was adjourned for the filing of further documents.
I have had the opportunity of reading the transcript of that proceeding and it was clear that Murphy J had reached the preliminary view that the application for a stay was misconceived because there was, in fact, nothing to stay. That was because the order for dismissal of the application was the subject of appeal, and the order enabling the filing of submissions had, in fact, been complied with, so there was nothing upon which the stay could operate.
On 27 September 2012, there was a consent order made in the Court of Appeal, dismissing the stay application.
Shortly afterwards, on 8 October 2012, the applicant sought prerogative relief in relation to the decision of 1 August 2012, seeking to have it set aside by reason of a breach of procedural fairness. In accordance with the ordinary procedural requirements in relation to applications for prerogative relief, the first step for the applicant was to obtain an order nisi for the review of the decision.
That application came before McKechnie J on 26 October 2012 and, on that day, an order was made dismissing the application on the basis that no procedural fairness had been shown. That decision was subsequently published - see Gandini v The Legal Profession Complaints Committee [2012] WASC 428. In that decision, McKechnie J said, at [13]:
In order to obtain a grant of an order nisi, Mr Gandini must establish an arguable case of jurisdictional error by SAT. There is no jurisdictional error. SAT gave Mr Gandini a reasonable opportunity to be heard and to respond to the allegations made against him. He fully participated in the hearing through counsel and by giving evidence. At the conclusion of the evidence, he instructed counsel and made written submissions and then oral submissions. Mr Gandini was present throughout the oral submissions by both his counsel and counsel for the committee. He raised no issue at the time. He says in his affidavit that he thought about it that night and for the next few nights before terminating counsel's authority.
At [15], his Honour concluded that:
The rules of natural justice which relevantly entitled Mr Gandini to a fair opportunity to be heard were amply complied with. There is no arguable basis on the facts that there was any procedural unfairness. … .
His Honour then makes reference to the affidavit sworn in support of the application for an order nisi and to various portions of the transcript to explain the basis of his conclusion.
There are some submissions which Mr Gandini makes as to the manner in which that conclusion should be treated in these proceedings. I will return to that in a moment.
The next thing which occurred in the chronology of events is that, on 1 November 2012, about five days after the order nisi was refused, Mr Gandini lodged the present application that I am dealing with today and submissions in relation to it, seeking to have the Tribunal revoke its orders of 1 August 2012.
The matter was at the time, of course, the subject of an ongoing appeal against those orders in the Court of Appeal, but, on 18 December 2012, that appeal was discontinued by Mr Gandini. Then on 16 January 2013, further submissions were filed in these proceedings by Mr Gandini. On 23 January 2013, there is a further letter which has been referred to today, filed, concerning questions of the constitution of the Tribunal and the submissions as to the jurisdictional question concerning the Tribunal. On 1 February 2013, a third, or arguably fourth, set of submissions were filed by Mr Gandini in relation to this application.

Was there a denial of procedural fairness?

I said earlier that there was a fundamental difficulty with the present application, and it is that it necessarily turns, as a matter of jurisdiction on an invitation for the Tribunal to conclude that it denied Mr Gandini a fair opportunity to be heard at the hearing on 1 August 2012. That is a question which was agitated and determined by McKechnie J and it is not open, in my view, for Mr Gandini now to seek to reagitate that issue in the light of McKechnie J's conclusions.
In my view, there is an issue estoppel which arises quite squarely. Mr Gandini raised several arguments as to why that ought not be the case. The first was that he contends that the issue determined by McKechnie J did not, at least arguably, involve the same parties. I reject that submission. It is quite clear that the issue which arose was an issue between Mr Gandini and the Committee as to whether or not in the proceedings between those parties in the Tribunal, there was a denial of procedural fairness.
At the hearing before McKechnie J, although it was an application for an order nisi which is capable of being dealt with ex parte, the Committee had been given notice and attended and participated. It is clear that, were an order nisi to have been issued the Committee would have been a necessary respondent to that application. It is contemplated by the Supreme Court Rules and, with respect to his Honour, a matter of commonsense and desirability, that the Committee was invited to participate in the preliminary question of whether or not an order nisi should be issued.
There is no doubt in my mind that those proceedings were, in fact, proceedings effectively as between Mr Gandini and the Committee, dealing with precisely the same issue which he seeks to agitate in these proceedings.
Mr Gandini's second argument, as I apprehend it, is that the evidence which is now before the Tribunal is different from that which was considered by McKechnie J in the context of an application for an order nisi. He says that he was not aware that those proceedings were going to be contested, or, indeed, that the Committee had been given notice of the order nisi application and, accordingly, did not, as I understand the submission, put on as detailed an amount of evidence on the issues as might have been the case had he understood that there would be some opposition to it.
That argument cannot, in my view, (even if one accepts as correct that he did not prepare the case as thoroughly as he might have), give rise to a conclusion that an issue estoppel does not arise. One can readily see the chaos which would ensue to the law if parties were able to say that they simply did not put in a particular effort the first time around and now wanted to shore up the arguments in a different forum with more evidence so as to establish a point which they failed to establish at first instance.
It needs to be borne in mind that the test for the grant of an order nisi is, as McKechnie J pointed out, simply whether there is an arguable case of jurisdictional error. Mr Gandini failed to establish an arguable case and it is not an answer to say that, in effect, in hindsight, he might have been able to do so with some different evidence. I do not think that the fact that more evidence is sought to be relied upon in the course of this application carries the point any further.
I am satisfied, as well, that in the sense that the conclusion reached by McKechnie J resulted in the dismissal of the application and the finalisation of the proceedings, the determination of the issue was final as between these parties. On that basis alone, this application is misconceived and it must fail.
Even if that were not the case, I have to say that nothing I have heard today, including having regard to the affidavit of Mr Lourey, which was tendered during the course of the hearing, would cause me to revisit the orders made by the Tribunal on 1 August 2012. That is because, having reviewed the papers, read the transcripts and the submissions in some detail, and now considered the affidavit of Mr Lourey, I would not depart from the conclusion reached by McKechnie J.
That is especially so, having regard to the terms of the order which the Tribunal did make, which was to permit short, supplementary written submissions on the very matters that had been identified as the matters of concern which needed to be addressed. In fact, although Mr Gandini submits that he would have been more fullsome and might have felt curtailed in some of the submissions he made, in substance, he has been given an opportunity to correct what he has identified as the errors made by counsel, or the omissions which counsel has made, and has availed himself of that opportunity.
The notion now of creating yet another set of submissions to be worked through as a further supplement to the materials already filed simply is not warranted as a matter of natural justice nor, in fact, would practically aid the fair disposition of the case. I would not, even if I were not constrained by what I consider to be an issue estoppel, have been inclined to make the orders sought.
Mr Gandini, in his submissions in reply, sought further time for additional submissions to be made on the question of estoppel. I do not propose, as is obvious from what I have said today, to accede to that request for two main reasons. One is that the Committee wrote to the Tribunal (and copied to Mr Gandini) some time ago - I do not have the precise date in front of me - foreshadowing its contention that the matter of procedural fairness had been finally determined and that there was an estoppel operative in relation to the present application. Mr Gandini has had ample opportunity to address that question and, indeed, did address it. The point is something which he has covered and which I have considered and I do not propose to provide another opportunity to make submissions on the point.
The second reason is that, against the history of what has happened since 1 August 2012, it would be inconsistent with the Tribunal's objectives in s 9 of the SAT Act to allow this whole issue to drag on any further. This is clearly the third opportunity, albeit that the appeal was abandoned, which Mr Gandini has had to argue this question of the procedural fairness of the hearing on 1 August 2012 and it is simply unacceptable to allow things to go any further.
The publication of the decision on the substantial merits has been delayed now for some seven months, which creates a burden on everyone concerned and it is time for the decision to be written and published. If there are residual questions about errors made along the way in reaching that decision, or in the decision itself, then rights of appeal exist under s 105 of the SAT Act, which Mr Gandini can avail himself of. To try and deal with it on a piecemeal, interlocutory way over an extended period of time is simply not acceptable.
I mentioned at the outset that the other complaints made about the procedures on 1 August 2012 included the requirement to make submissions without the benefit of transcript. In my view, there is no substance in that complaint. The hearing was of an extraordinary application in the first place. That is not to criticise the application, but it was certainly most unusual, once the proceedings have been completed, to contemplate further submissions and to seek to withdraw submissions. There was a statement of areas of concern and the Tribunal tried to accommodate those in the orders which it made.

The affidavit material, which counsel did not tender to the Tribunal, I agree with the observations of McKechnie J in that regard, was able to be put together without the benefit of the transcript. I do not think the transcript would have added a great deal to the process in any event.
The complaint about Mr Rynne being present, it seems to me, to be entirely without substance. To the extent that one can tell, Mr Rynne appears to have been amenable to the notion of the submissions being withdrawn and so must have necessarily understood and expected criticism of his performance.
The fact that he did not, himself, make an application to correct or supplement anything which he had said suggests that he did not share the views of Mr Gandini as to the inaccuracy of his submissions, but the fact that he was there was a reasonable step for the Tribunal to require. He had been on the record at the relevant time and I do not think there is any substance in the suggestion that his presence somehow curtailed Mr Lourey's ability to speak frankly to the Tribunal. It follows from all of that I am of the view that this application should be dismissed, and there will be an order accordingly.

Orders

1.The application for revocation of the Tribunal's orders made on 1 August 2012 and consequential directions is dismissed.
2.The respondent, Mr Gandini, is to pay the Legal Profession Complaints Committee's costs in this application fixed in the sum of $1,500 within 35 days.

I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT