LEGAL PROFESSION COMPLAINTS COMMITTEE and in de BRAEKT
[2012] WASAT 55
•21 FEBRUARY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: LEGAL PROFESSION COMPLAINTS COMMITTEE and in de BRAEKT [2012] WASAT 55
MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MS H LESLIE (SENIOR SESSIONAL MEMBER)
MS K KEMP (SESSIONAL MEMBER)
HEARD: 21 FEBRUARY 2012
DELIVERED : 21 FEBRUARY 2012
FILE NO/S: VR 201 of 2010
BETWEEN: LEGAL PROFESSION COMPLAINTS COMMITTEE
Applicant
AND
MEGAN MAREE in de BRAEKT
Respondent
Catchwords:
Practice and procedure - Vocational regulation - Legal practitioner - No case to answer application Whether Tribunal has power to dismiss proceeding on the basis that there is no case to answer
Legislation:
Legal Profession Act 2008 (WA)
State Administrative Tribunal Act 2004 (WA), s 47, s 47(1)
Result:
Tribunal does not have power to dismiss a proceeding on the basis that there is no case to answer
Application to dismiss proceeding on no case to answer basis refused
Category: B
Representation:
Counsel:
Applicant: Mr S Vandongen SC with Ms PE Le Miere
Respondent: Self-represented
Solicitors:
Applicant: Law Complaints Officer
Respondent: Self-represented
Case(s) referred to in decision(s):
Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
During the course of a hearing in a professional disciplinary proceeding involving five allegations of professional misconduct, the respondent, a legal practitioner, submitted that she had 'no case to answer' in respect of the fifth allegation, because the applicant, the Legal Profession Complaints Committee, had not provided evidence that, at the time of the alleged incident, she attended the Central Law Courts building in the course of carrying out her legal practice.
The Tribunal determined that, as a creature of statute that does not have common law powers and discretions exercised by courts, it does not have power to dismiss a proceeding on the basis that there is 'no case to answer'. The Tribunal has power to dismiss a proceeding under s 47 of the State Administrative Tribunal Act 2004 (WA) where the proceeding is frivolous, vexatious, misconceived or lacking in substance, being used for an improper purpose, or is otherwise an abuse of process. However, none of these findings could be made in this case.
Finally, the Tribunal observed that, if it did have the power to dismiss a proceeding on a 'no case to answer' basis, then the Legal Profession Complaints Committee had established a prima facie case by presenting the evidence of two witnesses that, if accepted, could reasonably show that the practitioner attended the building in the course of carrying out her legal practice at the time of the alleged incident.
The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows.
Introduction
The respondent, Ms in de Braekt, has sought to make an application that the proceeding in relation to allegation (e) of the amended application dated 15 December 2010 should be dismissed on the basis that there is no case to answer in relation to it. Allegation (e) is that Ms in de Braekt engaged in professional misconduct by:
Behaving in a discourteous and abusive manner to Mr Rajandran Kanapathy, a security supervisor located at the Central Law Courts building, on or about 16 January 2009 while visiting the Central Law Courts in the course of carrying out her legal practice.
Ms in de Braekt submitted, in particular, that there is no evidence capable of satisfying the Tribunal that, on 16 January 2009, she visited the Central Law Courts 'in the course of carrying out her legal practice', as alleged.
Does the Tribunal have power to dismiss a proceeding on the basis that there is 'no case to answer'?
As the Court of Appeal has recently emphasised, the State Administrative Tribunal is a creature of statute and it does not have common law powers or discretions. The Court of Appeal said in Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151, proceedings involving a vocational regulation application before the Tribunal, at [82], as follows:
As we have noted, some of the decisions of the Tribunal fail to distinguish between the circumstances in which an order may be made by the Tribunal to the effect that a hearing be held in private pursuant to s 61 of the Act, and the scope of the nonpublication orders which the Tribunal is authorised to make by s 62 of the Act. A consideration of that distinction, and of the difference between the Tribunal and a court is assisted by the decision in John Fairfax & Sons Ltd v Police Tribunal of New South Wales(1986) 5 NSWLR 465. That case concerned a non-publication order made by the Police Tribunal of New South Wales. The statute creating that Tribunal declared it to be a court of record. Accordingly, as McHugh JA (with whom Glass JA agreed) observed:
Since the Tribunal is an inferior court of record created by statute, it can have no powers, jurisdictions or authorities other than those authorised by the Act: Irving v Askew(1870) LR 5 QB 208; R v Hackett; Ex parte Cline [1882] VicLawRp 74; (1882) 8 VLR (L) 129; Levoune v Bacoulis(1935) AR (NSW) 126. The Tribunal has none of the powers inherent in the courts of the common law - the Common Pleas, the Kings Bench and the Exchequer Chamber (476).
As Mr Vandongen submitted, the Tribunal does not have an express statutory power to dismiss proceedings or part of proceedings on the basis that there is no case to answer. The Tribunal does have prescribed powers under the State Administrative Tribunal Act 2004 (WA) (SAT Act) in relation to summary determination in certain circumstances. They include the power, in s 47(1) of the SAT Act, to dismiss proceedings or to strike out proceedings or a part of proceedings if the Tribunal believes that a proceeding:
(a)is frivolous, vexatious, misconceived or lacking in substance, or
(b)is being used for an improper purpose, or
(c)is otherwise an abuse of process.
As Mr Vandongen correctly submitted, this case does not get close to satisfying the requirements of s 47(1) of the SAT Act.
Consideration of application to dismiss proceeding on the basis that there is 'no case to answer' on the assumption that there is power
Assuming, however, that the Tribunal had power to dismiss proceedings on the basis that there is no case to answer, as in, for example, a criminal trial, the Tribunal is satisfied, or would be satisfied, if it had power to dismiss proceedings on the basis that there is no case to answer, that the Legal Profession Complaints Committee (LPCC) has made out a prima facie case, including in relation to the allegation that Ms in de Braekt was attending the Central Law Courts 'in the course of carrying out her legal practice'.
There is evidence presented by the LPCC which, if accepted, is capable of establishing each element of the allegation, including the words that I have quoted. In particular, the Tribunal has heard evidence of Mr Rajandran Kanapathy that, on the date in question, namely, 16 January 2009, Ms in de Braekt attended the Central Law Courts building, hastily bypassed the security checkpoint and proceeded to the noticeboard containing the daily list of matters before the court, and that she then proceeded to walk quickly to the lifts without going through the security checkpoint. This evidence is corroborated by the evidence of Ms Benita Wood that, at the time, she witnessed Ms in de Braekt enter the Central Law Courts building and proceed to the noticeboard situated next to the reception desk.
This evidence is capable, if accepted, of establishing an inference that Ms in de Braekt was attending the Central Law Courts building on the day in question 'in the course of carrying out her legal practice'.
It is true that a submission that there is no case to answer will be upheld when the prosecution evidence in a criminal trial has been discredited by crossexamination, or is so manifestly unreliable that no reasonable tribunal could safely act on it. Having heard the crossexamination of both witnesses, the Tribunal is satisfied that the evidence has not been discredited in relation to this aspect, or is so manifestly unreliable that no reasonable tribunal could safely rely on it.
Conclusion
For these reasons, the Tribunal considers that it does not have power to dismiss a proceeding, or part of a proceeding, in a vocational regulation context, or in any other context, on the basis that there is no case to answer. However, if the Tribunal had power, it would not dismiss the proceeding, or the part of the proceeding involving allegation (e), on that basis, for the reasons that it has given.
I certify that this and the preceding [14] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT
0
2
2