Legal Profession Complaints Committee and Lourey - [2010] WASAT 169

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION: LEGAL PROFESSION COMPLAINTS COMMITTEE and LOUREY [2010] WASAT 169

MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
MR D R PARRY (SENIOR MEMBER)
MR J MANSVELD (MEMBER)

HEARD: 2 JUNE 2010 - WRITTEN SUBMISSIONS FILED 24 JUNE 2010, 13 JULY 2010, 4 AUGUST 2010 AND 11 AUGUST 2010

DELIVERED : 24 NOVEMBER 2010

FILE NO/S: VR 171 of 2009

BETWEEN: LEGAL PROFESSION COMPLAINTS COMMITTEE
Applicant
AND
MICHAEL JOSEPH LOUREY
Respondent

Catchwords:

Legal practitioners Whether unsatisfactory professional conduct Failure to seek or obtain medicolegal report addressing causation in workers' compensation matter Uncontested medical evidence as to nature and extent of injury Client's evidence that injury suffered at work contested by employer and disbelieved by arbitrator Principal issue in workers' compensation matter was when injury was sustained, not how injury was sustained Whether failure to seek or obtain medical evidence about whether injury was consistent with the way in which client claimed it had been caused constituted unsatisfactory professional conduct Application dismissed

Legislation:

Legal Profession Act 2008 (WA), s 402, s 438(1), s 438(2), s 622(1), Pt 13
State Administrative Tribunal Act 2004 (WA), s 47, s 47(1), s 47(2), s 87, s 87(2)
Workers' Compensation and Injury Management Act 1981 (WA), s 5, s 18

Result:

Practitioner not guilty of unsatisfactory professional conduct
Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr S Vandongen with Ms P Le Miere
Respondent: Mr CP Shanahan SC

Solicitors:

Applicant: Law Complaints Officer
Respondent: Chapmans

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

Medical Board of Western Australia and Aung Tin Kyi [2009] WASAT 22
Motor Vehicle Industry Board and Dawson (2006) 41 SR (WA) 343; [2006] WASAT 8
Paridis v Settlement Agents' Supervisory Board [2007] WASCA 97

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Legal Profession Complaints Committee sought a finding by the Tribunal that a legal practitioner, Mr Michael Joseph Lourey, engaged in unsatisfactory professional conduct by conduct occurring in connection with the practice of law that fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. In particular, the Legal Profession Complaints Committee alleged that Mr Lourey was guilty of unsatisfactory professional conduct in failing to obtain any medicolegal reports while acting for a client in a workers' compensation matter dealing with the issue of causation of the client's injury.
The Legal Profession Complaints Committee contended that a reasonably competent legal practitioner would have obtained further medical evidence to the effect that the nature and extent of the client's injury was consistent with it having been suffered in the manner described by the client.
The Tribunal found that Mr Lourey's failure to seek or obtain further medical evidence reflected reasonable professional judgment. Indeed, Mr Lourey demonstrated a sound understanding of the forensic issues involved in the proper conduct of the client's workers' compensation case.
The key issue in the compensation proceeding was when the client suffered the injury (whether while at work as alleged by the client or prior to coming to work as alleged by the employer), not how the client suffered the injury. While medical evidence in relation to causation would have been relevant, it would have been, at its highest, equivocal in relation to when the injury was sustained and could not have reasonably altered the result in the proceeding. Furthermore, the client's case for compensation failed fundamentally because his evidence in relation to the key issue of when he sustained the injury was disbelieved in light of evidence of three coworkers that was accepted by the Arbitrator and cast doubt on the client's veracity in this regard.
Mr Lourey did not, therefore, engage in unsatisfactory professional conduct. The Tribunal dismissed the Legal Profession Complaints Committee's application.

Introduction

The Legal Profession Complaints Committee (LPCC) sought a finding by the Tribunal, pursuant to s 438(1) of the Legal Profession Act 2008 (WA) (LP Act), that a legal practitioner, Mr Michael Joseph Lourey, engaged in unsatisfactory professional conduct in the course of representing a client (client) in a workers' compensation matter between 12 March 2007 and 9 August 2007. The LPCC also sought consequential orders pursuant to s 438(2) of the LP Act and an order for costs pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The Tribunal has jurisdiction under s 438(1) of the LP Act to make the finding sought by the LPCC. Section 402 of the LP Act contains the following inclusive definition of 'unsatisfactory professional conduct':
For the purposes of this Act
Unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
There was uncontested medical evidence in the workers' compensation matter about the nature and extent of the client's injury. However, Mr Lourey did not seek or obtain any medical evidence to the effect that the nature and extent of the injury was consistent with it having been suffered in the manner alleged by the client. The LPCC contended that Mr Lourey's failure to seek or obtain any medical evidence to this effect was conduct that fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
The conduct in question occurred prior to the commencement of the LP Act on 1 March 2009. However, as a result of s 622(1) of the LP Act, Pt 13 of the LP Act, relating to complaints and discipline, applies whether the conduct occurred before or after the commencement of the LP Act.
The Tribunal will address the LPCC's contention after setting out the factual background. For reasons discussed below, the Tribunal finds that Mr Lourey's failure to seek or obtain further medical evidence on the issue of causation was a reasonable professional judgment in the circumstances of the compensation case.
The key issue in the compensation proceeding was when the client suffered the injury (whether while at work as alleged by the client or prior to coming to work as alleged by the employer), not how the client suffered the injury. While medical evidence in relation to causation would have been relevant, it would have been, at its highest, equivocal in relation to when the injury was sustained and could not have reasonably altered the result in the proceeding. Furthermore, the client's case for compensation failed fundamentally because his evidence in relation to the key issue of when he sustained the injury was disbelieved in light of evidence of three co-workers that was accepted by the Arbitrator and cast doubt on the client's veracity in this regard. Mr Lourey did not, therefore, engage in unsatisfactory professional conduct.

Factual background

The client worked as a caterer and cleaner on an oil rig generally on a roster involving two weeks on the rig and two weeks off the rig. On 1 December 2006, the client was at work on the rig, having arrived about 10 days before and having about four days left before two weeks off. The client alleged that while he was helping out in the kitchen on 1 December 2006, he removed a bag of rubbish from a bin and bent down to put a new bin liner in. He alleged that the bin was near the sink where dishes were washed and, consequently, the floor was wet and slippery. He said that as he bent down to put the new bin liner in, his left knee was slightly bent and his left foot slipped and twisted, causing a sharp pain in his left knee. He said that he put an ice pack on his knee and tried to take it easy for the rest of the shift.
The client alleged that, by 2 December 2006, the pain in his left knee had worsened. He said that, on that day, he went to the medic on the rig and told him about his injury. He said that he worked that day but did as little as he could because the pain in his knee was getting worse. He also reported the knee injury to his manager.
On 5 December 2006, the client left the rig and flew back to Perth. That afternoon, he went to see Dr Lewis Blake who was the employer's consultant general practitioner. In a report to the employer's insurer dated 2 January 2007, Dr Blake confirmed that he saw the client on 5 December 2006 and that the client was 'complaining of symptoms affecting his left knee'. Dr Blake said the following in his letter:
The left knee was tender over the anteromedial joint margin. There was some wasting of medial vastus but no other diagnostic signs indicative of a meniscal tear.
I telephoned and spoke with [an officer of the employer's insurer] and then arranged for [the client] to undergo MRI imaging of the left knee. A copy of the report has been appended. You will note that it has indeed confirmed the presence of an irregular radial tear of the posterior horn of the medial meniscus. There is also a small decompressed Baker's cyst.
[The client] had rested the knee at home throughout his rostered time off and did not represent to my rooms until 15 December 2006. At that point I discussed the imaging findings and after further discussions arranged for a referral for him to again see Mr Cameron Thrum to determine whether the injury required remedial surgery. I was able to secure an appointment there on 19 December 2006 and now await Mr Thrum's response. There is a strong possibility that he will be recommending remedial surgery.
On 19 December 2006, the client saw Mr Cameron Thrum, an orthopaedic surgeon. In a letter to Dr Blake that is undated but appears to have been written shortly after seeing the client, Mr Thrum said the following:
Thanks for sending along this chap whom I last saw three years ago with his right knee.
This time[,] 3 weeks ago he slipped on a wet floor twisting his left knee. He complained of marked swelling, he has pain on the medial side. He gets questionable locking but no giving way, he still has some swelling, he doesn't have trouble with stairs but squatting is difficult.
There is no past history of significant problems with the left knee and he has had no treatment.
Physical examination showed his quads to be down, there is no fluid in the joint, he has synovial hypertrophy, he was tender over the medial joint line, he has a positive patellofemoral compression test, ligaments are intact and McMurray's test is positive for the medial side.
On MRI he has a tear in the medial meniscus.
He does need arthroscopy and I will organise that for him.
On 12 February 2007, the client's own general practitioner, Dr Arno Erasmus, signed a certificate that, when he treated the client for a left shoulder complaint on 8 November 2006, the client 'had no complaint concerning Lh or Rh knee pain or dysfunction'.
On 23 March 2007, Mr Thrum performed an arthroscopy on the client. Mr Thrum reported to Dr Blake as follows:
At examination under anaesthetic[,] there were no particular problems. At arthroscopy[,] the patellofemoral surface was quite good, the femoral surfaces were quite good, the lateral tibial and medial tibial surfaces were good, his ACL was normal, the lateral meniscus was normal and his pathology was quite a large tear on the posterior horn of the medial meniscus.
I have been able to resect this for him and hopefully this will settle him down.
On 2 April 2007, Mr Thrum saw the client for review. Mr Thrum reported to Dr Blake that the client 'would probably be able to return to work in about two weeks'.
Meanwhile, on 23 December 2006, the client lodged a claim with his employer for workers' compensation as a result of the alleged injury on 1 December 2006. On 30 January 2007, the employer's insurer disputed liability for the following reason:
There is insufficient evidence of a work-related disability.
On 15 February 2007, the client lodged two applications with WorkCover Western Australia under the Workers' Compensation and Injury Management Act 1981 (WA) (Workers' Compensation Act), namely, a 'Part XI' application for weekly payments and statutory expenses and a 'Part XII' application for an interim payment order for weekly payments. On or about the same date, the client contacted his union in relation to his Part XI claim. He was told that the union would organise a lawyer for him and that it would pay for the lawyer and any necessary reports.
The Union Workers' Compensation Service (UWCS) is a facility provided by Chapmans Barristers and Solicitors for members of unions that are affiliated with UWCS. On 16 February 2007, UWCS wrote to the client advising that UWCS had referred the client's file to Chapmans Barristers and Solicitors for consideration and advice. The letter confirmed that a telephone appointment had been made for the client with Mr Lourey at 9.30 am on 26 March 2007. The letter contained the following final paragraph:
In the event that you wish to pursue the issue of the insurer's failure to accept your claim for your left knee, any sooner than the above date, please provide written instructions to obtain a report from a doctor/specialist of your choice who can confirm that your knee injury was related to your employment. This report would be crucial normally for you to succeed with any Workcover application.
On 7 March 2007, the employer's solicitor, acting on instructions from the employer's insurer, filed a Reply to the Part XI application (Reply). The Reply stated as follows in relation to the questions 'what parts of the application will be disputed and why[?]':
The respondent disputes that the applicant is entitled to benefits under the Act.
The respondent submits that the applicant's evidence in his statutory declaration is false as it relates to the following matters:
1.That prior to 1/12/06 he had not sustained, was suffering from and/or reported ongoing left knee symptoms to a work colleague[.]
2,That the applicant had not undertaken any work in his brother[']s concrete trucking business[.]
3.That the applicant had not applied for annual leave to be taken over the Christmas/New Year period[.]
The respondent refers to the statutory declarations of Mr Van Veen, Mr Brown and Ms Ottaway in support of the above contention. The respondent specifically refers to the following within those statutory declarations:
1.In the statutory declaration of Ms Ottaway, she states that the applicant told her on the first day of their shift, noting that both the applicant and [Ms] Ottaway commenced their shifts on the rig on the same day i.e. 21/11/06, that he had a sore left knee, was not sure how it occurred, other than that there was NO accident or incident and that he had just 'woken up with it'.
2.Further[,] Ms Ottaway states that in the days immediately following the report, the applicant asked her to examine his left knee as he felt that it was swollen. She did[,] and did not note any obvious swelling. Ms Ottaway is sure that the applicant was referring to his LEFT knee as she asked him whether it was his right knee, which had been injured at an earlier date and the applicant denied that.
3.Ms Ottaway also confirms that the applicant had sought annual leave over the Christmas/New Year period but that that had been denied.
4.Ms Ottaway states that while the worker over the days after that initial report of symptoms had regularly attended the rig gymnasium and undertook running and weights without any apparent restriction, [he] did complain the following mornings that his left knee was sore.
5.In the statutory declaration of Mr Brown, he states that he has questioned the validity of the applicant's clam (sic).
6.He states that, in corroboration of what Ms Ottaway declared, the worker had sought, from him, approval for annual leave over the Christmas/New Year period. That was in October 2006. The leave was denied and the applicant was disgruntled.
7.Mr Brown also states that his suspicion over the validity of the claim was heightened when[,] on leaving the rig at the end of his [shift] i.e. 5 November 2006, the applicant told him that he was not likely to be back for his Christmas[/N]ew Year shift even though he had not yet seen a doctor.
8.Finally and in total opposition to the applicant's statement that he did not engage in any work activities for his brother's concrete trucking business, Mr Brown states that the applicant had told him on a number of occasions that he had in fact worked for or with his brother in his concrete trucking business[.]
9.In the statutory declaration of Mr Van Veen, he states that he has questioned the validity of the applicant's clam (sic) also.
10.He states that he was suspicious from the outset. He states that when the applicant let out the scream of 'oh' as Mr Van Veen describes in his statement, that (sic) he heard another sound like the bin being banged into a cupboard rather than the applicant hitting it as he has now described.
11.Mr Van Veen considers that it was a manufactured 'injury'.
12.Mr Van Veen states that while he saw the applicant rubbing his left knee[,] he did not report any injury[,] or present in a manner that showed any restriction whatsoever.
13.Mr Van Veen states that he was not aware that the applicant had been allegedly icing his left knee as the applicant describes.
14.Mr Van Veen corroborates the evidence of Ms Ottaway and Mr Brown in relation to the applicant's annual leave request.
Statements by Ms Ottaway and Mr Brown, dated 11 January 2007, and by Mr Van Veen, dated 15 January 2007, were attached to the Reply as 'supporting documents and information'. There were no medical reports or certificates attached to the Reply.
The statements by Ms Ottaway, Mr Brown and Mr Van Veen accord with the summary in the Reply set out above. In particular, Ms Ottaway's statement contained the following:
…
5.It is my evidence that on 21 NOVEMBER 2006, which was myself and [the client]'s first day back on the rig after 2 weeks['] R & R, we started our work at approximately 1030 hrs 1045 hrs[,] and one of the very first tasks we performed was carrying laundry bags up some stairs on the oil rig.
6.I recall when performing this first duty back at work [the client] said to me while walking up the stairs carrying the laundry bag, 'I don't know what I have done to my knee but it is sore'.
7.There was no accident or incident on the stairs and [the client] gave no reason as to why his knee was sore.
8.[The client] complained to me over the next few days that his left knee was sore and he actually even asked me to physically look at his knee because he thought it was swollen.
9.I recall I did look at [the client]'s knee a few days after we returned to the rig and I did not notice any obvious swelling.
10.I asked [the client] if it was the same knee as he had injured years ago and he said 'no, it's a different one'.
11.I would also point out that during this time[,] myself and [the client] continued to attend the oil rig gym every night and I witnessed [the client] using the running machine to run for 30 minute sessions at a time each night and he would also use weights and perform stretching work.
12.[The client] showed no problems or signs of restriction when running on the treadmill machine each night, however[,] on the mornings after attending the gym he would typically mention in passing 'my knee is a bit sore'.
13.I would also like to state that when [the client] initially reported knee symptoms to me on the first day back on the rig on 21 NOVEMBER 2006, I asked him if there was any accident or incident that caused his sore knee and he replied 'no, I just woke up sore'.

On 28 March 2007, the employer's solicitor served the Reply on Mr Lourey.
On 16 April 2007, Arbitrator Wickham conducted a telephone conference in respect of the client's Part XI application in the WorkCover Dispute Resolution Directorate. Mr Lourey represented the client in the teleconference. It appears that the teleconference commenced shortly after 11 am. It also appears that, shortly before the teleconference, Mr Lourey reviewed the file and wrote a summary note in relation to the employer's case: 'In effect "he's lying"'. During the teleconference, the employer's counsel said that there was no dispute in relation to the nature or extent of the injury and that the dispute related to 'causation only'.
The client's Part XI application proceeded to arbitration hearing before Arbitrator Wickham on 9 August 2007. The medical reports referred to earlier were tendered and their authors were not required for crossexamination. The client gave evidence and was crossexamined. The statements of Ms Ottaway, Mr Brown and Mr Van Veen referred to earlier were tendered and these witnesses were crossexamined.
On 3 December 2007, Arbitrator Wickham published written reasons for decision in which she dismissed the client's application. The Arbitrator expressed her findings and conclusions at [34] [42] of the reasons. At [34] [35], Arbitrator Wickham said:
34.The issue, which I must determine, is whether the applicant suffered an injury to his knee, in the course of his employment.
35.I have considered the evidence of the applicant and the three witnesses brought to testify on behalf of the respondent. I have observed the witnesses closely during the proceedings. I consider Mr Brown, Mr Van Veen and Ms Ottaway to be genuine and honest in their testimonies. The applicant's attitude and demeanour during the proceedings was not impressive. Having carefully considered the matters raised by the respondent and observed the applicant give evidence I am not prepared to accept that the applicant is an absolute witness of truth. Where there is a conflict in the evidence between the applicant and Ms Ottaway, I prefer the evidence of Ms Ottaway.
At [36] [38] of the reasons, Arbitrator Wickham discussed evidence in relation to the client's application for leave over the Christmas/New Year period which was refused. Arbitrator Wickham then said, at [38]:
As I find that Ms Ottaway and Mr Brown were more credible witnesses than the applicant, then I prefer their evidence to that of the applicant. I find that the applicant had a discussion with Mr Brown in the laundry around the 21 November 2006 and asked him for leave over the Christmas period which was refused.
At [39] of the reasons, Arbitrator Wickham discussed Ms Ottaway's evidence in relation to the client's first complaint about soreness in his left knee and said the following:
Ms Ottaway was an impressive witness and her evidence was compelling. I find that the applicant was suffering with left knee pain when he first returned from R & R on 21 November 2006 and he identified that pain whilst walking up some stairs with Ms Ottaway. I also find that the applicant was taking anti-inflammatory medication.
At [40] of the reasons, Arbitrator Wickham discussed the evidence of Mr Van Veen as to what he heard and saw on 1 December 2006. The Arbitrator then said the following:
The applicant did not make out an incident report immediately. He was not seen hobbling around or in any pain such as to require him to cease work and leave before the end of his shift. He did not see the medic immediately. It was not until after the event, that the worker reminded Mr Van Veen of the episode on the 1 December 2006 and requested that he make an incident report. I find that the applicant was not showing any signs of having been injured after the alleged episode in the kitchen on 1 December 2006.
Arbitrator Wickham concluded her decision at [41] [42] as follows:
41.I am not satisfied on the evidence before me that the applicant has discharged the onus upon him to produce evidence to establish on the balance of probabilities that the injury occurred in the manner described by him, and that he suffered an injury to his knee arising out of or in the course of his employment. The medical evidence supports a conclusion that the applicant suffered a medical meniscus injury to his knee, but does not take it any further. There is no medical evidence to say whether the injury sustained by the applicant is consistent with the accident described to have taken place in the kitchen on 1 December 2006. I have found that the applicant was experiencing pain in his knee on the first day of his return to work and was taking anti-inflammatory medication. He continued to work out in the gym and further he continued to carry out his duties without complaint or without any visible restriction after the alleged episode in the kitchen on 1 December 2006.
42.For the above reasons I am not satisfied on the balance of probabilities that the applicant sustained the injury to the left knee whilst in the course of removing and replacing the bin liner on the (sic) 1 December 2006. I would not find that the medical meniscus injury to the left knee arose out of or in the course of the applicant's employment.

Did Mr Lourey's failure to seek or obtain further medical evidence amount to unsatisfactory professional conduct?

Under s 18 of the Workers' Compensation Act, an employer is liable to pay compensation where a worker suffers an 'injury'. The term 'injury' is relevantly defined in s 5 of the Workers' Compensation Act as 'a personal injury by accident arising out of or in the course of the employment'. The LPCC submitted, correctly, that in a Part XI application under the Workers' Compensation Act, the worker bears the onus to establish that the employer is liable to pay compensation pursuant to s 18 on the balance of probabilities. This required the client to establish that the injury to his left knee arose out of or in the course of his employment in the circumstances described by him, namely, in the course of removing and replacing the bin liner in the kitchen on the oil rig on 1 December 2006.
It is common ground that Mr Lourey did not seek or obtain any medical evidence beyond the reports referred to earlier going to the nature and extent of the injury. In particular, Mr Lourey did not seek or obtain medical reports going to causation; that is, to the effect that the injury was consistent with it having been suffered in the manner alleged by the client. The LPCC submitted that:
Expert medical evidence establishing that the injury sustained by [the client] was consistent with his evidence of how it had been caused was capable of rationally affecting the assessment by the arbitrator of the probability that the injury was sustained out of or in the course of his employment. Such evidence was capable of providing objective support to the proposition that there was a causal link between the injury and the alleged mechanism of injury, and by lending support to the evidence of [the client] in general.
The LPCC contended that:
In view of the fact that [the client] carried the onus of proving his claim, and the fact that [Mr Lourey] was clearly on notice that the employer required [the client] to prove his claim, … the failure of [Mr Lourey] to seek or obtain any express expert medical opinion about whether the injury was consistent with the mechanism of that injury, amounted to engaging in conduct occurring in connection with the practice of law that fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
The LPCC relied on expert evidence from Mr Asanka Gunasekara. Mr Gunasekara has been a legal practitioner for only one and a half years. However, he has acted in workers' compensation cases under the Workers' Compensation Act since 1998, initially as a lay advocate and then as a Registered Agent, at a time when legal practitioners were precluded from appearing in that jurisdiction. Between 1998 and March 2010, Mr Gunasekara participated in over 550 hearings in the WorkCover jurisdiction.
Mr Gunasekara gave the following evidence:
In my opinion, a 'reasonably competent and diligent legal practitioner' would have obtained causation medical evidence on this claim and filed it in order for it to be used at Arbitration.
This is because:
(a)the worker carried the onus of proof on his claim and the practitioner was aware, or ought to have been aware of this;
(b)the Part XI Reply, whilst not always clear, did not concede causation and the practitioner ought to have erred on the side of caution and proceed as if causation was disputed; and
(c)causation was clearly put in issue by at least April 2007 at the Teleconference.
Mr Gunasekara referred, in particular, to the observation by Arbitrator Wickham at [41] of her reasons that 'there is no medical evidence to say whether the injury sustained by the applicant is consistent with the accident described to have taken place in the kitchen on 1 December 2006', and expressed the opinion that:
Whilst it might be suggested that additional causation medical evidence would not have made a difference at the end of the day because of the adverse credibility findings, we believe that the worker's case was salvageable and capable of success if causation medical evidence was obtained.
Mr Lourey relied on expert evidence given by Mr David Clyne, a legal practitioner with almost 40 years' experience. Mr Clyne gave evidence that:
My unequivocal opinion is that the conduct of Mr Lourey in not calling additional medical evidence on the issue of causation was entirely appropriate and one which I personally would have adopted in the circumstances that he encountered prior to the hearing.
In my view there was more than ample evidence on the balance of probabilities to have proven the case before the Arbitrator.
The Tribunal prefers the evidence of Mr Clyne over that of Mr Gunasekara for two reasons. First, Mr Clyne is a legal practitioner with considerably greater experience than Mr Gunasekara, even if one were to equate Mr Gunasekara's experience as a lay advocate and Registered Agent in WorkCover cases with that of a legal practitioner in such cases. Secondly, the terms of the Reply and the supporting witness statements of Ms Ottaway, Mr Brown and Mr Van Veen, make it clear that while the client bore the onus in relation to causation in general and that causation was not conceded by the employer, the key issue contested by the employer and, therefore, the key issue for determination in the arbitration, was, to quote the submission put for Mr Lourey:
Whether [the client] was lying about his injury being incurred whilst at work (when), not whether his description gave an acceptable account of the 'mechanism' by which his injury may have been caused (how). (original emphasis)
The fact that the key issue in the workers' compensation proceeding was when the injury was sustained (and, in particular, whether it was suffered at work on the oil rig on 1 December 2006 as the client alleged or prior to coming to the oil rig as the employer alleged), not how the injury was sustained, is confirmed by both the transcript of the arbitration and Arbitrator Wickham's reasons. The key issue in the workers' compensation proceeding was well understood by Mr Lourey. Mr Lourey's evidence to the Tribunal and, in particular, his evidence under crossexamination, revealed a sound understanding of workers' compensation proceedings in general, and the forensic considerations relevant to the proper conduct of the client's case in particular. While the following cross-examination of Mr Lourey was relied on by the LPCC in its submissions, it demonstrates a correct understanding by Mr Lourey of the key issue in the workers' compensation proceeding:
You were put on notice, weren't you, specifically by the reply that the employer did not accept your client's version of how and when and where the injury he suffered occurred? --- That's correct, because they believed they had evidence that he already had suffered an injury prior to that date.
You were put on notice that they did not accept his version of how, when and where the injury occurred, weren't you? --- That's correct, because their evidence was and it was attached to this that he already had the injury prior to that. That specific evidence was Ms Ottaway's witness statement and that he complained to her of that injury on about 21 November, that is, that it had occurred earlier the injury had occurred earlier.
Mr Lourey also correctly understood that, given the key issue in the workers' compensation proceeding, medical evidence to the effect that the injury was consistent with the way in which the client said it had been caused, would not have reasonably altered the outcome. Mr Lourey's sound understanding of the relevant forensic issues in the client's proceeding is apparent from his answers during the following crossexamination:
What was the employer putting in issue? --- Whether [the client] was telling the truth or not.
Wouldn't the resolution of that issue have been aided by medical evidence about consistency? --- I don't believe it could have been.
Are you serious Mr Lourey? Are you serious? --- I am.
SHANAHAN, MR: Your Honour, my friend can ask a question. There's no problem with that, but I think he could put the questions in a way that is appropriate.
JUDGE ECKERT: Yes, I think we will move on? --- I'm going to repeat an answer I gave earlier. The Arbitrator's task was to decide whether [the client] was a witness of truth or not.
VANDONGEN, MR: You're suggesting that a report from a medical practitioner about whether or not his history of the way in which the injury occurred was consistent with the nature of the injury would not have assisted in that process? --- No, it wouldn't have assisted because whilst the best you could hope for is that it was consistent with the mechanism of injury, it goes not at all to when the injury occurred, where it occurred and that rested on her acceptance of [the client]'s evidence or otherwise.
But it goes to the question of how it occurred, doesn't it? --- But it doesn't take the ultimate issue any further.
The 'ultimate issue', as Mr Lourey put it in this answer, was the key issue of when the injury was sustained. At its highest, medical evidence to the effect that the nature and extent of the injury was consistent with it having been suffered in the manner described by the client would have been equivocal in relation to the key issue in dispute; it would have been equally consistent with the injury having been suffered by the client while changing the bin liner on the rig as with the injury having been suffered by the client when changing a bin liner in his own kitchen.
Furthermore, the client's case for compensation failed fundamentally because Arbitrator Wickham did not believe him, while she did believe the evidence of his three coworkers, in particular Ms Ottaway. As Mr Clyne said in evidence, 'the client was not accepted as a witness of truth and it is there that this case was lost'. In particular, Arbitrator Wickham found that 'the applicant was suffering with left knee pain when he first returned from R & R on 21 November 2006' [at [39]) on Ms Ottaway's evidence, whom the Arbitrator referred to as 'an impressive witness' whose evidence was 'compelling'. Arbitrator Wickham also found that 'the applicant had a discussion with Mr Brown in the laundry around the 21 November 2006 and asked him for leave over the Christmas period which was refused' and that 'the applicant was upset with the rejection' (at [38]). In both instances, the Arbitrator did not believe the client's evidence. She said that 'having carefully considered the matters raised by the respondent and observed the applicant give evidence I am not prepared to accept that the applicant is an absolute witness of truth' (at [35]).
It is plain on a reading of Arbitrator Wickham's reasons that medical evidence to the effect that the nature and extent of the injury was consistent with it having been suffered in the manner described by the client would not have reasonably lent support to the evidence of the client in relation to the key issue in dispute, namely, when the injury was sustained. Such evidence would not have reasonably supported the account given by the client that was disbelieved by the Arbitrator. The Arbitrator found that the client was not a truthful witness in relation to when the injury was sustained, because his left knee was sore when he arrived on the rig and he was disgruntled by his application for leave over the Christmas/New Year period having been rejected by the employer.
Contrary to Mr Gunasekera's opinion, the client's case was not 'salvageable and capable of success if causation medical evidence was obtained'. At its highest, such evidence would have been equivocal in relation to the key issue in dispute. Such evidence would also not have lent support to the client's evidence that was disbelieved by the Arbitrator in relation to not having suffered the injury prior to coming onto the oil rig and not having made an unsuccessful application for leave.
It may well be the case, as stated in the final paragraph in the letter from UWCS to the client dated 16 February 2007, that 'a report from a doctor/specialist of your choice who can confirm that your knee injury was related to your employment … would be crucial normally for you to succeed with any WorkCover application' (emphasis in bold added). However, having regard to the manner in which the employer contested the client's workers' compensation claim from the service of the Reply and supporting statements onwards, the client's case was different from the norm. In the circumstances of the client's workers' compensation case, further medical evidence to the effect that the nature and extent of the injury was consistent with it having been suffered in the manner described by the client was neither crucial nor necessary for the client's case to succeed. Furthermore, while the evidence would not have been irrelevant, given that the client bore the onus in relation to causation generally, it would not have been material in light of the key issue in dispute.
As noted earlier, Arbitrator Wickham referred, at [41] of her reasons, to the fact that there was 'no medical evidence to say whether the injury sustained by the applicant is consistent with the accident described to have taken place in the kitchen on 1 December 2006'. However, in light of the key issue in dispute and the Arbitrator's findings in relation to credibility of witnesses, such medical evidence could not have reasonably affected the result.
Mr Lourey's failure to seek or obtain further medical evidence to the effect that the nature and extent of the client's injury was consistent with it having been suffered in the manner described by the client reflected reasonable professional judgment. Indeed, Mr Lourey demonstrated a sound understanding of the forensic issues involved in the proper conduct of the client's workers' compensation case. The conduct in question was certainly not conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian practitioner. Mr Lourey is not guilty of unsatisfactory professional conduct.

Conclusion

Mr Lourey's failure to seek or obtain further medical evidence to the effect that the nature and extent of the client's injury was consistent with it having been suffered in the manner described by the client was not unsatisfactory professional conduct. The LPCC's application should be dismissed.

In his submissions, Mr Lourey made an application for costs under s 87 of the SAT Act on the basis that the application should be dismissed under s 47 of the SAT Act. Section 47(2) of the SAT Act authorises the Tribunal to order that a proceeding be dismissed or struck out in the circumstances described in s 47(1) of the SAT Act. Those circumstances are where a proceeding:
(a)is frivolous, vexatious, misconceived or lacking in substance;
(b)is being used for an improper purpose; or
(c)is otherwise an abuse of process.
While Mr Lourey has been successful in this proceeding, the proceeding does not fall within any of the circumstances of unjustified proceedings warranting summary dismissal under s 47 of the SAT Act.
The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in vocational regulatory proceedings is that, ordinarily, unless it can be demonstrated that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs will not be awarded against the vocational regulatory body: Motor Vehicle Industry Board and Dawson (2006) 41 SR (WA) 343; [2006] WASAT 8 (Motor Vehicle Industry Board and Dawson) at [47], referred to with approval in Paridis v Settlement Agents' Supervisory Board [2007] WASCA 97 at [36]; Medical Board of Western Australia and Aung Tin Kyi [2009] WASAT 22 at [71]. This is because, otherwise, 'vocational regulatory bodies may well feel inhibited in commencing proceedings that should be commenced and maintained in the public interest even though "success" cannot be guaranteed': Motor Vehicle Industry Board and Dawson at [47]. There appears to be no reason in this case to depart from the Tribunal's established practice in relation to costs in vocational regulatory proceedings. Accordingly, each party should bear its own costs of the proceeding.

Orders

The Tribunal makes the following orders:
1.The application is dismissed.
2.There is no order as to costs.

I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J ECKERT, DEPUTY PRESIDENT