LEGAL PROFESSION COMPLAINTS COMMITTEE and KHOSA
[2019] WASAT 143
•6 NOVEMBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: LEGAL PROFESSION COMPLAINTS COMMITTEE and KHOSA [2019] WASAT 143
MEMBER: JUSTICE PRITCHARD, PRESIDENT
HEARD: 6 NOVEMBER 2019
DELIVERED : 6 NOVEMBER 2019
PUBLISHED : 8 JANUARY 2020
FILE NO/S: VR 159 of 2017
BETWEEN: LEGAL PROFESSION COMPLAINTS COMMITTEE
Applicant
AND
MANRAJ SINGH KHOSA
Respondent
Catchwords:
Practice and procedure - Application to strike out under s 47 of the State Administrative Tribunal Act 2004 (WA) - Where proceedings are disciplinary proceedings - Whether proceedings are vexatious or an abuse of process
Legislation:
Legal Profession Act 2008 (WA), s 401, s 410, s 421, s 424, s 425, s 426, s 428(1), s 435, s 438(1), s 438(2), s 441
State Administrative Tribunal Act 2004 (WA), s 47, s 55
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Mr S Merrick |
| Respondent | : | In Person |
Solicitors:
| Applicant | : | Legal Profession Complaints Committee |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Laurent and the Commissioner of Police [2009] WASAT 254
Medical Board of Australia v Woollard [2017] WASCA 64
Re Rules Of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
REASONS FOR DECISION OF THE TRIBUNAL:
(These reasons have been taken from the transcript of the hearing and have been edited to anonymise the parties and to make necessary corrections or annotations for the purpose of grammar or syntax.)
Introduction
The Legal Profession Complaints Committee (Committee) has brought proceedings against Mr Khosa (Application) pursuant to s 428(1) of the Legal Profession Act 2008 (WA) (LP Act). The Committee alleges that Mr Khosa has engaged in professional misconduct within the meaning of s 438 of the LP Act on three grounds, which I discuss below. In its Application, the Committee seeks the following:
(i)That the Tribunal make a finding that the practitioner has engaged in professional misconduct pursuant to s 438(1) of the LP Act.
(ii)Consequential orders pursuant to s 438(2) of the LP Act.
(iii)An order that the practitioner pay the Committee's costs of the proceedings.
On 15 May 2019, the Tribunal made orders listing the Application for a two day final hearing which was to commence on 5 November 2019. On 21 October 2019, Mr Khosa indicated that he wished to bring an application to dismiss or strike out these proceedings (strike out application), pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The parties consented to the adjournment of the final hearing, and have used the time set aside today for the purpose of the Tribunal hearing the strike out application.
Mr Khosa contends that the proceedings should be dismissed because they are vexatious or are being used for an improper purpose, or are otherwise an abuse of process within the meaning of s 47(1) of the SAT Act. For the reasons which follow, the strike out application must be dismissed.
In these reasons, I will deal with the following issues:
(i)the grounds for the Application under the LP Act;
(ii)the material relied on for the purposes of the strike out application;
(iii)the principles in relation to strike out applications under s 47 of the SAT Act; and
(iv)why the strike out application must be dismissed.
The grounds for the Application under the LP Act
The Committee alleges that Mr Khosa has engaged in professional misconduct on three grounds, each of which pertain to conduct in discrete periods of time, namely between October 2013 and 31 March 2014, June 2015 and July 2015, and between 25 September 2015 and 27 September 2016, respectively.
The grounds on which the Application is brought are summarised in the Committee's submissions at [5], [6] and [7], namely:[1]
[1] Committee's Submissions [5] [7].
Ground 1
The allegations in support of Ground 1 comprise, in substance, three elements, namely:
(a)the practitioner's alleged failure to pay certain invoices issued to him by a barrister, Mr Blandford;
(b)the practitioner's alleged application of funds deposited by his client into the trust account of his firm, Angove Law to the payment of invoices issued by his firm, in preference to invoices issued by Mr Blandford; and
(c)the practitioner having allegedly made a false and/or misleading written representation to Mr Blandford relating to payment of one of the latter's invoices.
Ground 2
Ground 2 similarly concerns three elements, namely:
(a)allegations to the effect that the practitioner made false and/or misleading representations to the Legal Practice Board (Board) on three occasions, namely:
(i)at a meeting attended by two of the Board's officers on 17 June 2015;
(ii)in writing on 23 June 2015 and 9 July 2015, respectively;
(b)an allegation that the practitioner attempted to avoid the liabilities of Angove Law, including the obligation to pay Mr Blandford's fees, by deriving a new incorporated legal practice, Law on Newcastle, from the then-existing practice of Angove Law; and
(c)an allegation that the practitioner engaged in the conduct the subject of (a) above as part of that attempt.
Ground 3
Ground 3 relates to the practitioner's alleged failure, on various occasions, to respond both to correspondence from and summonses issued by the Committee requesting information and documents.
I make the observation at this stage that the Application's history goes back to a dispute between Mr Khosa and a practitioner he retained to act as junior counsel on behalf of a client in proceedings in the Supreme Court. The dispute concerned the payment of counsel's fees. However, the allegations made by the Committee which are contained in part of ground 1, the majority of ground 2, and the entirety of ground 3 of the Application go well beyond the alleged failure by Mr Khosa to pay counsel's outstanding fees. In ground 1, it is alleged that Mr Khosa made representations to the practitioner he retained to act as junior counsel, or to the Legal Practice Board, which he knew to be false or misleading, or both, or had the potential to mislead. In ground 2, it is alleged that Mr Khosa attempted to avoid the liabilities of his law firm by establishing a new legal practice and deriving that new practice from the existing practice of his former firm. In ground 3, it is alleged that Mr Khosa failed, without reasonable excuse, to respond to correspondence from the Committee requesting information and documents on various occasions, or to respond to a summons issues by the Committee.
The material relied on for the purposes of the strike out application
In support of the strike out application, Mr Khosa relied on his affidavits sworn 1 November 2019 and 5 November 2019. For reasons already given, [32] and [33] of his affidavit of 1 November 2019 have been struck out on the basis that they disclose material subject to the prohibition on disclosure in s 55 of the SAT Act.
The Committee did not seek to read any affidavit in opposition to the strike out application.
Both parties filed written submissions, which I have read and taken into account. I have also heard the submissions of the parties today.
The principles in relation to strike out applications under s 47 of the SAT Act
Section 47(1) of the SAT Act provides:
(1)This section applies 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.
Under s 47(2) of the SAT Act, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders. As I have indicated, Mr Khosa seeks to have the entirety of the Application dismissed, and he seeks that the Tribunal do so on the basis that the Application is vexatious, is being used for an improper purpose, or is otherwise an abuse of process.
Section 47(1)(a), s 47(1)(b) and s 47(1)(c) of the SAT Act refer to what might be described as various species of abuse of process, including proceedings which are vexatious or misconceived or lacking in substance, or which are being used for an improper purpose. The principles in relation to s 47 of the SAT Act are now well established. I referred to some of these principles in my judgment in Laurent and the Commissioner of Police:[2]
Nothing in s 47 of the SAT Act contains a temporal restriction on when an application under that section may be made or considered. Plainly, an application may be made at an interlocutory stage, but it may also be made in the course of the substantive hearing of a proceeding, for example if at the close of the applicant's case, the state of the evidence is such as to demonstrate that the proceeding is lacking in substance. Given the absence of formal pleadings, the power in s 47 should be exercised particularly cautiously if an application for its exercise is made prior to the substantive hearing of an applicant's case: see Turner and Maunsell Australia Pty Ltd [2006] WASAT 52 (Turner) at [45] [46] and the cases there cited.
When, as in the present case, an application is made at an interlocutory stage, it is appropriate to assume that all of the factual assertions made by an applicant will be made out, and to consider, from that perspective, whether the proceeding is frivolous, vexatious, misconceived, or lacking in substance: Ambrus and Churches of Christ Homes and Community Services Incorporated [2006] WASAT 141 (Ambrus) at [16] (Deputy President Judge Chaney, as he then was). Even then, however, caution should be applied in the exercise of the power in s 47. If there is a serious question of fact to be determined, or if factual issues are likely to be affected by evidence in the possession of a respondent, that factor may render it inappropriate to dismiss the proceeding pursuant to s 47 of the SAT Act. In discrimination cases, it is not uncommonly the case that the evidence led by a respondent and crossexamination of the respondent's witnesses may provide the causative link between the conduct complained of and the ground of discrimination alleged: see Soelberg and Commissioner of Police and Ors [2007] WASAT 214 at [49] (Deputy President Judge Eckert), and Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 at [11].
In relation to its exercise at the interlocutory stage, the power in s 47 of the SAT Act has been viewed as analogous to the power of courts to summarily dismiss a proceeding when the pleadings fail to disclose any reasonable cause of action. The principles applicable to the exercise of that power have been considered applicable to the exercise of the power in s 47. In Ambrus at [8], Deputy President Judge Chaney observed that:
… the principle to be applied in an application such as this is at least analogous to the principle explained by Barwick CJ in General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 which requires that, in order to strike out a proceeding, it should be demonstrated that it is so obviously untenable that it cannot possibly succeed or is manifestly groundless or that it discloses a case which the court is satisfied cannot succeed.
[2] Laurent and the Commissioner of Police [2009] WASAT 254 at [19] – [21].
The power of a Tribunal to dismiss or strike out proceedings which are an abuse of process was considered more recently in Medical Board of Australia v Woollard.[3] In discussing what was meant by an abuse of process, Newnes and Murphy JJA said:
What amounts to an abuse of court process is insusceptible of a formulation comprising closed categories. Nevertheless, the scope of the power to grant a general stay of proceedings, and its underlying general purpose, namely to control the court's process and proceedings, serve to provide some general indication of the matters which must be taken into account, and the limits to the matters which may be taken into account when the power is invoked: Jago. As there is no common law right to a speedy trial, discretionary remedies such as a permanent stay must necessarily relate to the harm suffered or likely to be suffered if appropriate orders are not made.
The concept of abuse of court process extends to proceedings 'instituted for an improper purpose', and to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging', or 'productive of serious and unjustified trouble and harassment': Michael Wilson & Partners Ltd v Nicholls. In Batistatos v Roads and Traffic Authority of New South Wales, Gleeson CJ, Gummow, Hayne and Crennan JJ quoted the observations of McHugh J in Rogers v The Queen to the effect that whilst the categories of abuse of procedure remain open, they will usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.
Also, in Tomlinson v Ramsey Food Processing Pty Ltd, French CJ, Bell, Gageler and Keane JJ said that 'abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute' (emphasis added). Thus, the court must be satisfied that the continuation of the proceedings would cause unacceptable injustice or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. A mere risk of unacceptable injustice or unfairness is insufficient. (footnotes omitted) (original emphasis)
[3] Medical Board of Australia v Woollard [2017] WASCA 64 (Woollard) at [143] [145].
Their Honours also held,[4] that in so far as proceedings may be dismissed or struck out as an abuse of process, the term 'abuse of process' is used in a sense similar to that in which it is used in a superior court of record. However, the understanding of that term in the Tribunal must be modified to reflect the jurisdiction of the Tribunal, which is protective of the public. Further, because the Tribunal may impose disciplinary orders, the exercise of the power to strike out will be guided by considerations relevant to the stay of criminal proceedings in a superior court of record as well.
[4] Woollard at [135].
In Woollard, Newnes and Murphy JJA referred to the well-known passage in the judgment of Mason CJ, Deane and Dawson JJ in Walton v Gardiner:[5]
The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness …
In its application to the Tribunal, the concept of abuse of process requires some adjustment to reflect the fact that the jurisdiction of the Tribunal, which is not a court in the strict sense, is essentially protective ie protective of the public - in character. Nonetheless, the legal principles and the decided cases bearing upon the circumstances which will give rise to the inherent power of a superior court to stay its proceedings on the grounds of abuse of process provide guidance in determining whether, assuming jurisdiction to do so, the circumstances of a particular case are such as to warrant an order being made by the Supreme Court staying proceedings in the Tribunal on abuse of process grounds. In particular, in a context where the disciplinary power of the Tribunal extends both to the making of an order permanently removing a medical practitioner from the Register with consequent loss of entitlement to practise and to the imposition of a fine of up to $25,000, there is plainly an analogy between the concept of abuse of a court's process in relation to criminal proceedings and the concept of abuse of the Tribunal's process in relation to disciplinary proceedings …
As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners. (footnotes omitted)
[5] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at 392 393, 395 396.
In addition, in Woollard,[6] Newnes and Murphy JJA noted:
The exercise of the power to dismiss or permanently stay proceedings should only be exercised in extreme or exceptional cases. It involves the applicant establishing that the controversy should be disposed of without a determination on the merits. The onus is on the person asserting abuse of process to prove it, and the onus is a heavy one: Williams v Spautz.
Although the power permanently to stay proceedings has been said to be 'discretionary', in this context the word 'discretionary' indicates that although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined, and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is discretion to refuse a stay if proceedings are an abuse of process, or to grant one if they are not. Accordingly, the decision is an evaluative decision of a subjective nature, and it is not a discretionary decision 'properly so called'. (footnotes omitted)
[6] Woollard at [150] [151].
Bearing those general principles in mind, I turn to consider in more focus the meaning of the various terms in s 47 of the SAT Act.
I have already touched on the nature of proceedings which constitute an abuse of process. In so far as Mr Khosa contends that the proceedings are vexatious, the meaning of that term was discussed by Vaughan J in Re Rules Of The Supreme Court 1971 (WA); Ex Parte Gates.[7] His Honour observed that:
An action is vexatious if it has no reasonable prospects of success. The term has also been said to be apt to describe an action which is a sham and which cannot possibly succeed.
Apart from the hopeless case - those that are obviously untenable or manifestly groundless - an action may be vexatious due to the motive of the litigant. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. So too proceedings are vexatious if they are brought for collateral purposes.
A proceeding will also be vexatious if it is productive of serious and unjustified trouble and harassment. (footnotes omitted)
[7] Re Rules Of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 at [31] [33].
Turning to the question of what constitutes an 'improper purpose' for the purpose of s 47(1)(b) of the SAT Act, the meaning of improper, according to the Macquarie Online Dictionary, is 'not proper; not strictly belonging, applicable or right; not in accordance with the propriety of behaviour of manners; and unsuitable or inappropriate as for the purpose or occasion'. The word 'improper' describes the purpose. The improper purpose necessarily applies to the person or body who, by the decision to bring and to prosecute the proceedings, is in a position to use the proceedings for a purpose which is improper.
Therefore, in the present case, it is necessary for Mr Khosa to provide some basis on the basis of which the Tribunal could conclude that the Committee is using the Application for an improper purpose. What constitutes a purpose which is not proper, or is unsuitable or inappropriate, must, of course, be judged by reference to the statutory context within which the proceedings are brought, namely the enabling act which permits a party to bring proceedings in the Tribunal.
In the present case, that statutory context is the LP Act. Under Pt 13 of the LP Act, the Committee has power to investigate complaints about a legal practitioner's conduct made by any of the persons referred to in s 410. It may also, of its own initiative, investigate the conduct of a practitioner.[8] It must then make its own decision as to what action should be taken.[9] It may dismiss a complaint,[10] deal with a complaint summarily,[11] or refer the complaint to the Tribunal.[12]
[8] LP Act s 421.
[9] LP Act s 424.
[10] LP Act s 425.
[11] LP Act s 426.
[12] LP Act s 428.
The Committee's own decision to dismiss or deal with a complaint summarily may be subject to review.[13] The Committee clearly must act independently and form its own view about the merits of the complaint, and is not bound by the wishes or views of any party who makes a complaint in the first place. Consequently, even if a complainant wants a complaint against a practitioner pursued, the Committee is not bound by that view and must form its own view as to the merits of the complaint made as to the practitioner's conduct.
[13] LP Act s 435.
In exercising its powers, the Committee must act consistently with the purposes of Pt 13 of the LP Act, which are set out in s 401 as follows:
(a)to provide for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;
(b)to promote and enforce the professional standards, competence and honesty of the legal profession;
(c)to provide a means of redress for complaints about lawyers.
If the Committee were to pursue a complaint in the Tribunal for a purpose extraneous to, or inconsistent with, those purposes, the proceeding would, in my view, properly be described as one which was being used for an improper purpose.
Why the strike out application must be dismissed
Bearing in mind the heavy onus on a party who relies on s 47, in my view, Mr Khosa has not established that the continuation of the Application in the Tribunal would be unjustifiably oppressive to him, or would cause unacceptable injustice so as to bring the administration of justice into disrepute, so as to constitute an abuse of process, so that the Tribunal should take the exceptional step of dismissing the Application at this stage.
Although Mr Khosa contended that the Application could be characterised as vexatious, or used for an improper purpose, or otherwise as an abuse of process, each of his arguments as to those contentions proceeded on two bases.
First, in so far as Mr Khosa alleges that the proceedings are being used for an improper purpose, his allegation rested on a contention that the counsel he had briefed and whose fees he allegedly had failed to pay made a complaint to the Committee about that conduct on Mr Khosa's part, for the purpose of assisting the counsel's own recovery of his unpaid fees from Mr Khosa. The connection Mr Khosa saw between the recovery by that counsel of his fees, and the Committee's pursuit of the Application seemed to be the possibility that at the conclusion of these proceedings, if findings of professional misconduct or unprofessional conduct were made by the Tribunal, it would be open to the Tribunal pursuant to s 438 and s 441 of the LP Act, to make an order for compensation in favour of that counsel. Mr Khosa contended that having regard to a number of aspects of the conduct of the counsel involved, and to the conduct of the Committee, it was open to the Tribunal to conclude that the proceedings were being brought by the Committee for the purpose of assisting that counsel to recover his unpaid fees from Mr Khosa.
It is unnecessary for present purposes to set out the various factual matters referred to by Mr Khosa in his affidavits in relation to the conduct of the counsel involved, or the Committee. In summary, Mr Khosa alleged that the conduct of the counsel involved would permit an inference that he had failed to pursue other courses open to him to recover the fees that he had sought to have the client corporation (for which he and Mr Khosa acted) placed into administration, which prevented Mr Khosa from recovering fees from the client, and that the counsel involved had quickly made a complaint to the Committee which suggested that the purpose of that complaint was to permit him to recover unpaid fees by an order for compensation. Mr Khosa also pointed to the fact that that counsel is a person who is 'interested' in the present proceedings for the purposes of the LP Act. It suffices to say that those matters are disputed by the Committee, whose position is that the facts, to the extent that they are relevant, should properly be established by findings of the Tribunal at a final hearing, and it is not appropriate in the context of a strike out application to make factual determinations.
Quite apart from the fact that the facts alleged are disputed by the Committee and that this is not the appropriate forum to make findings about disputed facts, is that it is the Committee, and not the counsel involved, which has brought the Application. The difficulty with Mr Khosa's first contention is that the counsel in question, of course, is free to pursue such steps as he considers are open to him to recover his unpaid fees. It is possible that at the conclusion of these proceedings, if the allegations of professional misconduct or unprofessional conduct are made out, an application for a compensation order pursuant to Pt 13 Div 11 of the LP Act might be made. However, whether or not such an application is in fact made can have no bearing on whether the Committee itself is pursuing the Application for an improper purpose. There is nothing in the material before me to suggest that the Committee has commenced the Application for the purpose of permitting counsel to seek an order for compensation, rather than for the purpose of promoting and enforcing the professional standards, competence and honesty of the legal profession, and of the individual members of the profession, or for pursuing the discipline of the legal profession in the interests of the administration of justice and for the protection of consumers and of the public generally. I note in this respect that in the Committee's Application to the Tribunal, where the Committee set out the orders it sought, the Committee did not indicate that an order for compensation would be sought.
A further difficulty with Mr Khosa's first contention is that a compensation order could only be made in consequence of a finding of professional misconduct or unprofessional conduct. In other words, only if the Tribunal found that such conduct had been established could a compensation order be made. Yet, Mr Khosa submits that even if such findings were made, the Application could still properly be regarded as being used for an improper purpose. To set out that contention is to illustrate the fundamental difficulty with it.
In any event, Mr Khosa's focus on the conduct of counsel in respect of the fees that counsel claims are owed by Mr Khosa, overlooked the fact that part of ground 1, the majority of ground 2, and the entirety of ground 3, rely on conduct quite discrete and separate from Mr Khosa's alleged failure to pay counsel's fees. No basis was established for concluding that the Application in so far as it is brought on those grounds, was brought for an improper purpose.
The second basis for Mr Khosa's contention that the Application is vexatious, is being used for an improper purpose, or is otherwise an abuse of process, is that this matter is effectively a dispute about the payment of fees and should never have been pursued as a disciplinary proceeding in the Tribunal. With respect, that submission ignored the allegations underlying grounds 1, 2 and 3 in relation to the alleged false or misleading representations made by Mr Khosa, and his alleged failure to cooperate in providing information and documents to the Committee at its request, or in answer to a summons. These are matters clearly falling within a proper purpose of maintaining professional standards by practitioners, consistent with the purposes set out in Pt 13 of the LP Act.
In so far as Mr Khosa contends that the Application is vexatious, on the limited material presently available there is no basis for reaching the conclusion that the Application has no reasonable prospects of success, or that it is obviously untenable or manifestly groundless, or that it is a sham, or that it has been instituted with the intention to annoy or embarrass Mr Khosa, or that it is productive of serious and unjustified trouble or harassment, without any proper underlying foundation. To make that observation is not to make any judgment about the merits of the allegations made in the Application, or to ignore the fact that Mr Khosa denies the allegations made against him. As I have already noted, disputes as to facts are matters for resolution at a final hearing and not a proper basis for an application to dismiss or strike out a proceeding.
In reaching the conclusion that this case is not an appropriate one for an order to dismiss or strike out under s 47 of the SAT Act, I have relied on the fact that there is no proper foundation for a conclusion that the Application is an abuse of process, but have also taken into account other factors relevant to the exercise of the power in s 47 to dismiss proceedings at this stage. Those factors include: the need to maintain public confidence in the administration of justice and in the proper observance of the standards of legal practitioners; the need to protect the public from unprofessional conduct and professional misconduct on the part of legal practitioners; and thus the public interest in the Committee, as a regulator, being able to put before the Tribunal allegations concerning misconduct and unprofessional conduct by practitioners for the determination of the Tribunal; and for the imposition of sanctions to maintain appropriate standards of conduct, if such allegations are made out.
At the same time, I have not overlooked the importance of fairness to a practitioner if proceedings brought against him or her in fact constitute an abuse of process. Fairness to Mr Khosa is clearly thus a relevant consideration in weighing up the merits of the strike out application. Mr Khosa clearly believes that the Committee should not be pursuing him for disciplinary matters, which he regards as simply being a dispute about the payment of fees. Mr Khosa's view of the proper complexion which should be placed on the facts can be explored at a final hearing. No unfairness to him, sufficient to constitute a threat to public confidence in the administration of justice, would be occasioned by refusing the strike out application with a view to the merits of the allegations in the Application being explored at a final hearing.
Weighing up all of the material which is before me and the submissions that I have read and heard from the parties, I am not persuaded that the Application is vexatious, is being used for an improper purpose, or is otherwise an abuse of process sufficient to warrant the exceptional step of the Tribunal dismissing or striking out the Application at this stage.
Orders
1.The application by the respondent pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) is dismissed.
2.The costs of the application be reserved.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
EH
Associate to the Honourable Justice Pritchard
8 JANUARY 2020
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