| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and GANDINI [2012] WASAT 162 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) MR J MANSVELD (MEMBER)
MR C EDMONDS SC (SENIOR SESSIONAL MEMBER)
HEARD : 1 AUGUST 2012 DELIVERED : 1 AUGUST 2012 PUBLISHED : 8 AUGUST 2012 FILE NO/S : VR 183 of 2010 BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE Applicant
AND
LEONARD GANDINI
Respondent
Catchwords: Practice and procedure Vocational regulation Legal practitioner Application to substitute written submissions for submissions made by counsel at hearing
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Legislation: Legal Profession Act 2008 (WA), s 428
State Administrative Tribunal Act 2004 (WA), s 9, s 32(1), s 32(5), s 34(1) Result: Application for leave to substitute submissions dismissed
Respondent granted leave to file supplementary submissions Category: B
Representation: Counsel:
Applicant : Ms PE Cahill SC with Ms PE Le Miere
Respondent : Mr MJ Lourey
Solicitors:
Applicant : Law Complaints Officer
Respondent : Chapmans Barristers & Solicitors
Case(s) referred to in decision(s):
Nil
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 Following the hearing of closing submissions in a professional disciplinary proceeding relating to allegations of professional misconduct against a legal practitioner, the Tribunal reserved its decision. 2 Less than a week later, the practitioner wrote to the Tribunal seeking leave to file written submissions in substitution for the submissions made orally by his counsel who appeared on his behalf at the hearing. The practitioner said that the brief to counsel who had appeared at the hearing had been withdrawn, and that he wished: 1) 'to correct generally a number of comments made by Counsel'; 2) 'to correct the position in relation to concessions made by Counsel'; 3) 'to deal properly with the written and oral closing submissions of the applicant'; 4) 'to deal properly with a number of important queries from members of the Tribunal on 17 July 2012'; and 5) 'to include matters omitted by Counsel'. 3 The Tribunal convened a directions hearing to consider and determine the application. 4 The Tribunal determined that, while it had the discretion to grant the application, there was no reasonable basis for doing so in this case. It found that there was no basis to contend that counsel had exceeded the limits of his authority as the practitioner's agent or that he was suffering any disability that affected his capacity to represent the practitioner, and therefore, there had been no denial of procedural fairness. 5 However, the Tribunal discerned in the request for leave to file substituted submissions, an implicit application to file supplementary submissions. The Tribunal decided, having regard to its objectives and the potential consequences of the proceedings in relation to the practitioner's livelihood, that it was appropriate to allow the practitioner to file short written submissions supplementary to the oral closing submissions made by counsel. (Page 4)
6 The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows.
Background 7 This proceeding involves an application brought by the Legal Profession Complaints Committee (Committee) pursuant to s 428 of the Legal Profession Act 2008 (WA) in relation to a legal practitioner, Mr Leonard Gandini (practitioner), alleging professional misconduct against the practitioner. The proceeding was commenced on 24 September 2010 and was listed for hearing for two days, originally in September 2011, and then again in December 2011. Those hearings were vacated and ultimately the proceeding was listed for hearing and heard on 6 and 7 March 2012. 8 Following the hearing the practitioner indicated that he wished to obtain the transcript before making submissions and that was accommodated. The parties were ordered to exchange written submissions by 20 April 2012. That date was extended to 4 May 2012. The matter was listed for final submissions at 10 am on 19 June 2012 for a duration of three hours. The date for oral submissions was adjourned because of a misunderstanding of that date by counsel for the practitioner and the matter was then listed for the purpose of hearing oral submissions for two hours on 17 July 2012.
Application to substitute submissions made by counsel at hearing 9 Following the hearing on 17 July 2012 the Tribunal reserved its decision. On 23 July 2012 the practitioner, we were informed today, terminated the retainer, or more correctly perhaps, withdrew the brief to his counsel Mr MF Rynne. On that day, the practitioner, by his firm Chapmans, made what can only be described as a most extraordinary application. That application as expressed in Chapmans' letter of 23 July 2012 is 'leave to file written submissions in lieu of the oral submissions made on 17 July 2012'. 10 As Mr MJ Lourey, who appeared on behalf of the practitioner, indicated this morning, the application is to substitute a fresh set of submissions for all of the submissions made orally by Mr Rynne, as counsel on behalf of the practitioner, on 17 July 2012. 11 The letter from Chapmans gives five reasons as to why this is necessary: (Page 5)
1) 'to correct generally a number of comments made by Counsel'; 2) 'to correct the position in relation to concessions made by Counsel'; 3) 'to deal properly with the written and oral closing submissions of the applicant'; 4) 'to deal properly with a number of important queries from members of the Tribunal on 17 July 2012'; and 5) 'to include matters omitted by Counsel'. 12 The letter also stated that the practitioner believed that: … the Tribunal needs to be clear on the practitioner's position and his response to the applicant's written submissions, and clear on the practitioner's view of what the applicant says the evidence does and doesn't support, before finalising its decision. 13 The matter was listed for a directions hearing in order to consider and determine the practitioner's application.
Parties' positions in relation to the application to substitute submissions 14 Mr Rynne of counsel appeared as a courtesy to the Tribunal this morning and confirmed that he is no longer briefed on behalf of the practitioner. 15 Mr Lourey was unable to meaningfully expand upon the letter of 23 July 2012 in support of the application, but emphasised the potential consequences of this proceeding for the practitioner in terms of his capacity to lawfully pursue his vocation, and also indicated that the application would not significantly expand the time frame in this proceeding, particularly given the history to which we have referred. 16 The application to substitute submissions was opposed by the Committee, represented by Ms PE Cahill SC. Ms Cahill submitted that the only basis upon which such an application could be made is the limb of natural justice, known as the hearing rule, but that in order to advance an application such as that made by the practitioner, there would have to be either a want of authority on the part of counsel appearing at the hearing or evidence of some disability on the part of counsel so that it could not be said that the practitioner was in fact given a fair opportunity (Page 6)
to be heard and to present his case. Neither of these possibilities exist in the circumstances of this case. 17 Ms Cahill also submitted that even if one of these possibilities existed, the Tribunal would have to be satisfied that the proposed substituted submissions would be of assistance to the Tribunal, and would need some particularity in that regard.
Consideration of the application to substitute submissions 18 The Tribunal undoubtedly has a discretion to grant an application to substitute submissions. The State Administrative Tribunal Act 2004 (WA) (SAT Act) in s 32(5) states that: To the extent that the practice or procedure of the Tribunal is not prescribed by or under this Act or the enabling Act, it is to be as the Tribunal determines. 19 The Tribunal also has power under s 34(1) of the SAT Act to: … give directions at any time in a proceeding and to do whatever is necessary for the speedy and fair conduct of the proceeding. 20 The discretion that exists would be guided by the Tribunal's main objectives as set out in s 9 of the SAT Act and by the terms of s 32(1) of the SAT Act, which provides that: The Tribunal is bound by the rules of natural justice except to the extent that this Act or the enabling Act authorises, whether expressly or by implication, a departure from those rules. 21 The Tribunal's objectives as set out in s 9 include: 22 We consider that there is no arguable basis for the application that has been made to substitute submissions in lieu of the oral submissions made on 17 July 2012. Mr Rynne had instructions from the practitioner through Chapmans at the time when Mr Rynne prepared and signed the practitioner's written submissions, which were filed in accordance with the Tribunal's orders. Mr Rynne had instructions from the practitioner (Page 7)
through Chapmans at the time when he reviewed the Committee's written submissions and prepared for the hearing on 17 July 2012. He also had the practitioner's instructions through Chapmans when he appeared and made oral submissions on 17 July 2012. 23 There is, as Ms Cahill submitted, no basis to contend that Mr Rynne exceeded the limits of his authority as the practitioner's agent appearing on 17 July 2012, nor that Mr Rynne suffered from any disability that might have affected his capacity to properly and competently represent the practitioner. 24 Furthermore, the practitioner is a legal practitioner and was present throughout the hearing on 17 July 2012. 25 For these reasons it could not possibly be suggested that the practitioner has been denied procedural fairness in terms of the hearing rule in the circumstances of this case. The application to substitute submissions should therefore be rejected.
The implicit application to file supplementary submissions 26 It appears to us that implicit in the application that was made on behalf of the practitioner as articulated in the letter of 23 July 2012 is the basis of an alternative submission for the filing of supplementary submissions. This is not in substitution for or in lieu of the oral submissions made by Mr Rynne on the practitioner's behalf, but supplementary to those to address the five matters indicated in the letter which we have quoted. 27 The making of the application in the circumstances of this case, that is to say the alternative submission that we discern, is of course unreasonable in the sense that those submissions could and should have been made at the hearing on 17 July 2012. As we said, the practitioner was present throughout that hearing and there is no reason suggested to us as to why he did not indicate to his counsel the further points that he wishes to make. Nevertheless, having regard to the Tribunal's objectives outlined earlier, we are satisfied that granting an opportunity to file short supplementary submissions will not significantly detract from the achievement of the Tribunal's objective to determine matters as speedily as is practicable and to minimise costs to the parties subject to the question of costs, to which we will come shortly. 28 In exercising a discretion to consider whether to allow the practitioner to file supplementary submissions, the Tribunal also has (Page 8)
regard to the point made by Mr Lourey that these proceedings may potentially affect the practitioner's capacity to lawfully pursue his vocation. That is a very significant consideration, and notwithstanding our finding that these further submissions ought to have been indicated by the practitioner to his counsel at the hearing and ought to have been put at that time, we consider it is appropriate, on balance, to allow supplementary submissions to be provided in writing in relation to the five matters identified in the letter. Provided that the practitioner clearly understands, as is obvious from our reasons, that these submissions are not in lieu of or in substitution for the submissions that were made orally and by his counsel, but are supplementary to them.
Costs 29 In relation to the question of costs, the Committee made an application for the costs of the hearing today. We consider that those costs should be reserved. We have made some observations in relation to the application made by the practitioner. Ultimately the question of costs of the hearing today and of the Committee responding, if it wishes, to the supplementary submissions to be filed by the practitioner should be considered once the further submissions, and their import, and the outcome of the proceedings is known.
Orders 30 For these reasons we make the following orders: 1. The application for leave to file written submissions on behalf of the practitioner in lieu of the oral submissions made on 17 July 2012 is dismissed. 2. The respondent has leave to file and serve short supplementary written submissions, within seven days of the transcript of hearing on 17 July 2012 being made available by the Tribunal, in relation to: (a) comments made by counsel on 17 July 2012; (b) concessions made by counsel on 17 July 2012; (c) response to closing submissions of the applicant; (d) queries from the Tribunal on 17 July 2012; and (e) matters omitted by counsel on 17 July 2012. (Page 9)
3. The applicant may file, and if so, must serve any responsive submissions within seven days of receipt of the respondent's submissions provided in accordance with order 2. 4. The costs of the hearing of today, and of compliance with the foregoing orders, is reserved. 5. The Tribunal's decision is reserved with effect from receipt of the last of the submissions filed in accordance with the preceding orders.
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