LEGAL PROFESSION COMPLAINTS COMMITTEE and MCCARDLE - [2020] WASAT 51

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION:   LEGAL PROFESSION COMPLAINTS COMMITTEE and MCCARDLE [2020] WASAT 51
MEMBER:   JUSTICE PRITCHARD, PRESIDENT
HEARD:   31 MARCH 2020
DELIVERED          :   31 MARCH 2020
FILE NO/S:   VR 133 of 2019
BETWEEN:   LEGAL PROFESSION COMPLAINTS COMMITTEE
Applicant
AND
ROXANNE MAREE MCCARDLE
Respondent

Catchwords:

Jurisdictional question - Whether the Tribunal has jurisdiction to hear the Proceedings in light of s 75(iv) of the Constitution - Whether Burns v Corbett applies - Where respondent a resident interstate - Whether the Proceeding is a matter between a resident of one State and another State - Whether Legal Profession Complaints Committee to be equated with an agency or instrumentality of the State, or to the State itself - Whether Legal Profession Complaints Committee is discharging governmental functions or under the control of the State

Practice and procedure - Application to dismiss proceedings under s 47 of the State Administrative Tribunal Act 2004 (WA) - Whether proceedings constitute abuse of process - Whether gender composition of the Legal Practice Board supports conclusion of a lack of understanding of the respondent's circumstances - Whether the conduct the subject of the proceedings dealt with by other disciplinary Tribunals in other States - Significance of practitioner not currently engaging in legal practice - Whether significant that course of conduct subject of proceedings engaged in as self-represented litigant

Legislation:

Australian Constitution, s 75(iv)
Freedom of Information Act 1992 (WA)
Legal Profession Act 2008 (WA), s 438(2), s 534, s 535, s 536(1), s 555, s 556, s557(3), s 561, s 566, s 564, s 569
Legal Profession Conduct Rules 2010 (WA), r 6(2)(b), r 6(2)(c)
Public Sector Management Act 1994 (WA)
State Administrative Tribunal Act 2004 (WA), s 47

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr AJ Musikanth SC & Mr S Merrick
Respondent	:	In Person

Solicitors:

Applicant	:	Legal Profession Complaints Committee
Respondent	:	N/A

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

Burns v Corbett [2018] HCA 15; (2018) 92 ALJR 423
Deputy Federal Commissioner of Taxation v State Bank of New South Wales [1992] HCA 6; (1992) 174 CLR 219
Legal Profession Complaints Committee and Khosa [2019] WASAT 143
SGH Ltd v The Commissioner of Taxation of the Commonwealth of Australia [2002] HCA 18; (2002) 210 CLR 51

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons were delivered orally and have been edited from the transcript of the hearing.)

Introduction

In these proceedings (Proceedings), the Legal Profession Complaints Committee (Committee) contends that Ms McCardle, who was a legal practitioner in Western Australia at the relevant time, engaged in conduct between July 2012 and January 2017, which conduct constituted professional misconduct, as defined in the Legal Profession Act2008 (WA) (LP Act). The Committee seeks orders pursuant to s 438(2) of the LP Act.
Ms McCardle resides in Queensland. She has been served with the documents commencing the Proceedings but has not yet filed any response. Instead, she has made an application to dismiss the Proceedings on the basis that the Tribunal has no jurisdiction to deal with the Proceedings or, alternatively, that the Proceedings constitute an abuse of process (Application).[1]
[1] Ms McCardle also sought other orders in the Application, but did not press for those orders in the course of the hearing.
For the reasons which follow, the Application must be dismissed.

Does the Tribunal have jurisdiction to deal with the Proceedings?

There are two planks to Ms McCardle's argument that the Tribunal lacks jurisdiction (jurisdictional argument), but each rests on the fact that Ms McCardle is a resident of Queensland, and not of Western Australia.
The first plank of the jurisdictional argument is that the Proceedings should be characterised as proceedings between a resident of one State and a resident of another State. Ms McCardle contends that the Proceedings should be understood as proceedings between the persons whose complaints led to the Committee's investigation of her conduct, and subsequently to its commencement of the Proceedings (complainants), on the one hand, and Ms McCardle herself, on the other hand. Ms McCardle contends that she is a resident of Queensland, and that the complainants are residents of another State.
The second plank of the jurisdictional argument is that the Proceedings are proceedings between a State and a resident of another State. Ms McCardle contends that the Committee can be equated with the State of Western Australia, and that she is a resident of another State.
Ms McCardle says that in each of those circumstances, and by virtue of s 75(iv) of the Constitution, the High Court has original jurisdiction and the Parliament of Western Australia cannot confer authority under the LP Act on the Tribunal to determine the Proceedings. Each plank of the argument relied, to greater or lesser extents, on the reasoning of the High Court in Burns v Corbett.[2]

Can the Proceedings be characterised as proceedings between residents of different States?

[2] Burns v Corbett [2018] HCA 15; (2018) 92 ALJR 423.

The first plank of the jurisdictional argument cannot be accepted. The Proceedings are brought by the Committee in the exercise of its statutory power[3] to bring disciplinary proceedings against legal practitioners based on its assessment of the conduct of the practitioner in question. Proceedings of that kind are not a vehicle for the Committee to represent the interests of any other persons. That is not the nature of such proceedings, nor of the Committee's role. The first plank of the jurisdictional argument must fail for that reason. No part of the reasoning in Burns v Corbett arises for consideration.

Can the Proceedings be characterised as proceedings between a State and a resident of another State?

[3] See Legal Profession Act 2008 (WA) s 438.

The second plank of the jurisdictional argument drew upon the reasoning of the High Court in Burns v Corbett, albeit that that case concerned a different aspect of s 75(iv) of the Constitution.
No authority determinative of this second plank of the jurisdictional argument was identified by either Ms McCardle or the Committee. Consequently, the second plank of the jurisdictional argument must be determined by the application of accepted principles concerning those bodies which can be equated to a State.
Ms McCardle says that the Proceedings involve the State of Western Australia because the Committee can be equated to the State of Western Australia having regard to a variety of considerations, to which I will refer in a moment. In my view, the Proceedings cannot be characterised in that way. The Committee cannot be equated to the State of Western Australia and, therefore, the second plank of the jurisdictional argument must fail. My reasoning to that conclusion is as follows.
Clearly, the Committee is not the State itself. But that is not the end of the inquiry. In Deputy Federal Commissioner of Taxation v State Bank of New South Wales, the High Court observed:[4]
Once it is accepted that the Constitution refers to the Commonwealth and the states as organisations or institutions of government in accordance with the conceptions of ordinary life, it must follow that these references are wide enough to denote a corporation which is an agency or instrumentality of the Commonwealth or a State as the case may be. The activities of government are carried on not only through the departments of government but also through corporations which are agencies or instrumentalities of government. Such activities have, since the nineteenth century, included the supply on commercial terms of certain types of goods and services by government owned and controlled instrumentalities with independent corporate personalities. Railways are a notable example. … Likewise, banking activities were conducted by corporations under legislation enacted by the colonial legislatures before federation[.]
[4] Deputy Federal Commissioner of Taxation v State Bank of New South Wales [1992] HCA 6; (1992) 174 CLR 219, 230-231 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ).
The Court went on then to consider how one would determine whether a corporation could be equated with either the Commonwealth or the State. The Court first observed:[5]
In Maguire v Simpson, the court decided that the Trading Bank was 'the Commonwealth' for the purposes of s 64 of the Judiciary Act. That decision established that, in an appropriate context, the words 'the Commonwealth' are wide enough to include a corporation which is an agency or instrumentality of the Commonwealth. By a like process of reasoning, the words 'a State' have a similarly wide meaning.
[5] State Bank of New South Wales 232.
As for how one would determine whether a corporation could be properly equated as an agency or instrumentality of the Commonwealth or a State, and thus equated with the Commonwealth or a State itself, the Court posited the following test, in the context of the facts of that case:[6]
The question then is whether the State Bank is discharging governmental functions for the State or, to put it another way, is the State carrying on banking through its statutory corporation, the State Bank[.]
[6] State Bank of New South Wales 233.
Further examination of how one would discern whether a corporate entity could be equated with a State or the Commonwealth was undertaken in SGH Ltd v The Commissioner of Taxation of the Commonwealth of Australia.[7] In that case, Gleeson CJ, Gaudron, McHugh and Hayne JJ observed:[8]
[I]t is, no doubt, relevant to consider the activities undertaken by that entity. Similarly, it will be relevant, and usually very important, to identify the legal relationship between the entity and the executive government of the State and to identify what rights or powers the executive government of the State has over the use and disposal of the property in question. Not only will those inquiries be necessary for the purpose of deciding whether the property belongs to 'the State', they will also bear upon whether the entity in whose name the property stands is properly regarded as the State. Adopting what was said in the State Bank Case:
'[t]he question then is whether [in this case, SGH] is discharging governmental functions for the State or, to put it another way, is the State carrying on [the relevant business] through its statutory corporation'.
[7] SGH Ltd v The Commissioner of Taxation of the Commonwealth of Australia [2002] HCA 18; (2002) 210 CLR 51.
[8] SGH Ltd [16].
Applying those principles in the present case requires attention to the LP Act. The Committee is established under s 555 of the LP Act. It is a committee of the Legal Practice Board (Board). The Board is itself established under s 534 of the LP Act. The Board is a body corporate with perpetual succession, and proceedings may be taken by or against it in its corporate name.[9]
[9] Legal Profession Act 2008 (WA) s 534(1)-(3).
Section 535 of the LP Act expressly provides that the Board does not represent and is not an agent of the Crown'. That express provision militates very strongly against any conclusion that the Board, much less a committee of the Board, can properly be regarded as the State of Western Australia.
I turn, next, to the composition of the Committee, which is provided for in s 556 of the LP Act. That section states:
(1)The [Committee] consists of the following members
(a)a chairperson, and not less than 6 other legal practitioners, appointed by the Board from amongst its members from time to time;
(b)not less than 2 representatives of the community, none of whom is to be a person who is or has been an Australian lawyer.
(2)The Attorney General is to appoint the members as representatives of the community after consultation with the Minister responsible for consumer affairs.
(3)The number of persons to be appointed to the Complaints Committee as representatives of the community must not exceed one quarter of the total membership of the Complaints Committee at the time of appointment.
Two things may be noted from this section of the LP Act. First, the Committee is comprised by a majority (and a substantial majority at that) of lawyers. Secondly, in so far as the Attorney General (as a member of the executive government) has a role to play in appointing members of the Committee, the Attorney General may not appoint more than one quarter of the membership of that Committee.
Furthermore, having regard to the quorum and voting requirements set out in s 566 and s 569 of the LP Act, it is clear that the persons appointed by the Attorney General cannot constitute a majority of the Committee for decision-making purposes.
In addition, the Attorney General cannot remove members of the Committee, other than the members that he or she has appointed.[10] In addition, the Attorney General determines the remuneration of Committee members appointed as community representatives, but not of members of the Committee otherwise.[11]
[10] Legal Profession Act 2008 (WA) s 561.
[11] Legal Profession Act 2008 (WA) s 564.
I turn, next, to the functions of the Committee. The Committee's functions include: to supervise the conduct of legal practitioners; to inquire into complaints received by the Committee; and, where the Committee determines, to examine conduct on the part of a practitioner or matters relating to legal practice for the purpose of determining whether it may constitute unsatisfactory professional conduct or professional misconduct and, if it considers appropriate to do so, to commence disciplinary proceedings in the Tribunal. In short, the Committee's role, at its heart, is directed to the discipline of legal practitioners and maintaining standards of conduct of legal practitioners.
In addition to those functions of the Committee, a Committee member appointed by the Attorney General may report independently, as an individual, to the Attorney General on any aspect of a complaint, or of an inquiry in relation to disciplinary matters, or in relation the legal profession rules or the activities of the Committee or the Law Complaints Officer.[12] Accordingly, there is some means for the Attorney General to monitor aspects of the Committee's functions, but only through reports from the independent members of the Committee.
[12] Legal Profession Act 2008 (WA) s 557(3).
I will turn next to the establishment and functions of the Board, of which the Committee is a part.
The Board itself consists of:[13]
[13] Legal Profession Act 2008 (WA) s 536(1).
(a)the Attorney General; and
(b)the Solicitor General or, if there is no Solicitor General, the State Solicitor; and
(c)subject to section 538, each Queen’s Counsel, and each Senior Counsel
(i)whose principal place of practice is in this State; and
(ii)who is not a full time judicial officer; and
(iii)who has, in writing, nominated himself or herself as a member;
and
(d)12 local legal practitioners of at least 3 years' standing and practice who are elected as members.
The Board is thus a body corporate whose members are lawyers. Its role is concerned with determining the issue of, and conditions imposed on, practicing certificates to those lawyers who are admitted to practice in Western Australia. That much is clear from an examination of the various functions given to the Board under the LP Act. Those functions include dealing with the issue, amendment, suspension and cancellation of practising certificates and conditions on certificates; bringing proceedings for offences under the LP Act; and dealing with the issue of practising certificates for lawyers from other jurisdictions.
The Board is thus a regulatory body concerned with administering or dealing with the admission of lawyers to practice in Western Australia by issuing practising certificates.
The Board does not, apparently, receive any funding from the State. It is self-funded.
The presence of the Attorney General on the Board reflects the historical role of the Attorney General as the first law officer of the State. The Attorney General's membership of the Board, under the LP Act, is a continuation of that historical role. (That role is also reflected in the requirement on the Committee to give the Attorney General an annual report, and in the Attorney General's ability to require reports from the Committee.)
Bearing in mind all of these considerations in relation to the Committee specifically, and the Board more generally, I turn to consider the principles to which I earlier referred. It is not necessary, in my view, to make any determination as to whether the role of the Committee in disciplining legal practitioners, and thus in maintaining the standards of conduct for those who enjoy the privilege of a monopoly on providing legal advice and representation to clients in this State, constitutes a governmental function.
As the Court observed in the State Bank of New South Wales case, the range of functions exercised by government, directly or indirectly, is wide. A more instructive focus is on the question of whether the State controls the entity in question. This case can, in my view, be determined by reference to considerations of whether the executive government of the State exercises control, in the sense of determining the performance of, the Committee's functions and the composition of the Committee.
In my view, it does not. To the extent that the Attorney General has any 'control' over the members of the Committee, that 'control' is confined to the appointment of the community representatives, who may be appointed and removed by the Attorney General and who may report on the matters set out in the LP Act. The executive government of the State, whether through the Attorney General or otherwise, does not have any control over the Committee's decision-making. The executive government does not appoint the majority of the members of the Committee and therefore cannot control the decisionmaking of the Committee. I accept the submission of counsel for the Committee that:[14]
[T]here is little within the LP Act to suggest that the State controls, or is able to control, either the Board or the Committee. On the contrary, the provisions are consistent with a legislative intention to ensure that control of both remains overwhelmingly in the hands of members of the legal profession.
[14] Committee's submissions dated 28 February 2020 [60].
There is one further aspect of the second plank of the jurisdictional argument which needs to be addressed. Ms McCardle says that the Committee can be equated to the State of Western Australia because it is subject to a number of pieces of legislation that apply to entities of the State. She points, in particular, to the Public Sector Management Act1994 (WA) and to the Freedom of Information Act 1992 (WA) (FOI Act). Ms McCardle submits that the application of this legislation to the Committee supports the conclusion that the Committee carries out governmental functions, and that the Committee can be equated to the State for that reason. I am unable to accept that argument. To use the FOI Act as an example, the fact that the Parliament of the State of Western Australia has chosen to impose obligations on certain bodies in order to provide a right of access to certain of their documents, does not of itself establish that those bodies can properly be equated with the State of Western Australia for the purposes of s 75(iv) of the Constitution.
Accordingly, even accepting that Ms McCardle is a resident of another state, the Committee is not properly able to be regarded as the State of Western Australia for the purposes of s 75(iv) of the Constitution.

For all of these reasons, in my view, there is no impediment to the Tribunal exercising the jurisdiction given to it under the LP Act to deal with the Proceedings. The jurisdictional argument advanced in the Application must fail.

Are the Proceedings an abuse of process?

I turn next to the abuse of process argument. Although not expressly put in this way, I understood this to be an argument which relied on s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). If the Tribunal believes that a proceeding is (amongst other things) an abuse of process, that section permits the Tribunal to order that the proceeding be dismissed or struck out. I dealt with the principles in relation to s 47 of the SAT Act at some length in the decision in Legal Profession Complaints Committee and Khosa.[15]
[15] Legal Profession Complaints Committee and Khosa [2019] WASAT 143 [11]-[25].
I am not persuaded that Ms McCardle has established that there is any basis upon which the Proceedings could properly be regarded as an abuse of process (or, for that matter, as vexatious or brought for some improper purpose, as her submissions, both in writing and orally, might be understood to suggest). Having regard to the various submissions advanced by Ms McCardle in support of that contention, my reasons for that conclusion are as follows.
First, Ms McCardle sought to rely on an argument about the gender composition of the Board and asserted that this led to a lack of understanding of her present circumstances. I did not, with respect, understand this argument to have any relevance to the question of whether the Proceedings constituted an abuse of process. This argument does not advance Ms McCardle's claim that the Proceedings constitute an abuse of process.
Secondly, at various points Ms McCardle contended that the issues that are the subject of the Proceedings have been, or are being, dealt with by disciplinary tribunals in other jurisdictions. The evidence before the Tribunal did not support that contention.
Ms McCardle contended, for example, that there were Victorian proceedings and that those proceedings raised a possible estoppel issue (although she accepted that those proceedings had been stayed for the time being). A similar argument was advanced by Ms McCardle in respect of proceedings she said were underway in South Australia. Ms McCardle's allegations in relation to the Victorian proceedings and the South Australian proceedings, to which I will refer in a moment, were the subject of a responsive affidavit, affirmed by Mr Stephen Merrick, on 4 March 2020.
Mr Merrick deposed that, in respect of the Victorian proceedings, his enquiries revealed that sometime in 2018 Ms McCardle had made an application to the Victorian Legal Services Board (Legal Services Board) for an Australian Practising Certificate. The Legal Services Board refused her application on the grounds that she had failed to disclose unresolved interstate complaints, investigations and or charges to which she was then currently subject, including the Committee's investigation of her conduct, which is the subject of the present Proceedings. Ms McCardle then lodged an application to review the Legal Services Board's decision in the Victorian Civil and Administrative Tribunal. That proceeding was stayed on 16 September 2019 at Ms McCardle's request.
As a result of his enquiries, Mr Merrick deposed that he understands the position to be that the South Australian Legal Profession Conduct Commissioner (South Australian Commissioner) is not currently investigating the alleged conduct by Ms McCardle which is the subject of the present Proceedings. However, in the course of the Committee's investigation of Ms McCardle's conduct, the South Australian Commissioner consented to the Committee dealing with alleged conduct by her, that occurred in South Australia, as part of a course of conduct that occurred partly in Western Australia and partly in South Australia. On 7 February 2020, proceedings were commenced against Ms McCardle in the Legal Practitioner's Disciplinary Tribunal in South Australia for her failure to comply with a notice to provide information, issued by the South Australian Commissioner, pursuant to the relevant South Australian legislation.
After some discussion with Ms McCardle in relation to the evidence in Mr Merrick's affidavit, I understood her to accept that the proceedings which have been commenced in Victoria and South Australia are different in nature to the present Proceedings.
Ms McCardle's submission appeared to be that all of these proceedings effectively arise from the same underlying historical factual background. Whether or not that is the case, the point is that there is nothing to suggest that the same conduct, as is relied upon for the Proceedings, has been, or is being, relied upon as a basis for disciplinary proceedings conducted elsewhere. I refer, in particular, to the South Australian proceedings, which appear, on the face of Mr Merrick's affidavit, to be proceedings brought for an alleged failure to comply with a notice to provide information. In contrast, the present Proceedings make allegations about conduct engaged in by Ms McCardle in the course of proceedings in a number of courts which are said to have been brought without any proper basis, and to have constituted an abuse of process. I am not persuaded that that the proceedings in other jurisdictions, to which Ms McCardle referred, provide any basis for concluding that the present Proceedings constitute an abuse of process.
Ms McCardle made a number of allegations or contentions in relation to the fairness or merits of the present Proceedings, including allegations that the Proceedings were being raised many years after the conduct in question had occurred; that the Proceedings were having an adverse impact on her and others close to her; and that she was the only one being, in her words, 'targeted' in the Proceedings and that other practitioners were not the subject of proceedings against them by the Committee.
There are two difficulties with those submissions. First, they went to the underlying merits of the Proceedings - matters which cannot be resolved at this early stage and which do not properly found an application for dismissal under s 47 of the SAT Act. Secondly, and in any event, there was no real explanation of any prejudice to Ms McCardle which might arise in her defending the Proceedings. In short, these concerns or allegations by Ms McCardle did not provide any basis for concluding that the continuation of the Proceedings in the Tribunal would constitute an abuse of process.
A further allegation made by Ms McCardle in support of her contention that the Proceedings constituted an abuse of process was that the Committee had not conducted the Proceedings in a manner consistent with its obligations, in that it had been slow and not forthcoming with information or documents. Ms McCardle also contended that the Committee should act as a model litigant and that it had not done so because it had failed to disclose all information it should necessarily have disclosed, or which was available to it.
It suffices to say that the Proceedings in the Tribunal are at a very early stage. The Tribunal's usual orders in matters of this kind would require the Committee to provide to Ms McCardle the documents on which it wishes to rely. Should Ms McCardle consider that not all relevant documents have been disclosed to her, she may make an application for the production of further documents, pursuant to the SAT Act. Whether or not there is any merit to the allegation otherwise made by Ms McCardle in relation to the Committee's provision of information to her is not necessary to resolve for the purposes of determining the Application. That allegation provides no basis for concluding that the Proceedings are an abuse of process.
A further argument advanced by Ms McCardle, in her written submissions, was that she has not, since 2017, been a member of the legal profession and has no intention of returning to the law. In my view, that, of itself, does not render the Proceedings an abuse of process. The various proceedings able to be brought in the Tribunal by the Committee are concerned with the discipline of legal practitioners, the broader implications of which are not confined to those concerning the continued practice of an individual practitioner. The sanction imposed by the Tribunal, in any case, may not affect the practitioner's continued ability to practice. Other sanctions may be imposed. Such sanctions may have both a personal and general deterrent effect, and are imposed for the protection of the public. Furthermore, intentions as to future working arrangements may change over time. The fact that Ms McCardle says she has no intention of returning to law at present may not be determinative of her position in the future. This argument therefore does not establish that the present proceedings are an abuse of process.
A further argument advanced by Ms McCardle - which really seemed to imply that the Proceedings were an abuse of process on the basis that they were lacking in substance or had no reasonable prospect of success - contended that she was not acting as a legal practitioner at the time of the conduct which is relied upon by the Committee in the Proceedings. Ms McCardle instead says that she was acting on her own behalf in the various court proceedings relied on by the Committee in the Proceedings, rather than engaging in the conduct referred to as a legal practitioner.
Even if Ms McCardle is correct in her contention that she was acting on her own behalf, this argument is not determinative of whether the Committee is entitled to bring proceedings against a legal practitioner. Legal practitioners may engage in conduct outside the course of legal practice, which itself constitutes a departure from the standards of behaviour and conduct expected of legal practitioners, or which itself constitutes a breach of the Legal Profession Conduct Rules2010 (WA) (Conduct Rules). As counsel for the Committee also noted, conduct outside legal practice may constitute a breach of r 6(2)(b) and (c) of the Conduct Rules. Those rules provide that a practitioner must not engage in conduct in the course of providing legal services or otherwise, which may be prejudicial to or diminish public confidence in the administration of justice, or may bring the profession into disrepute. Consequently, whether or not a person is acting as a legal practitioner at the time of engaging in particular conduct, is not determinative of whether proceedings might be commenced against that person under the LP Act. This argument is not a basis upon which the Tribunal could conclude that the present Proceedings are an abuse of process.
Having carefully considered all of the arguments advanced by Ms McCardle, I am unable to accept that there is any basis for concluding that the Proceedings constitute an abuse of process, or that there is otherwise any other basis for dismissing the Proceedings pursuant to s 47 of the SAT Act.
In those circumstances, therefore, the Application brought by Ms McCardle must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
EH
Associate to the Honourable Justice Pritchard
11 JUNE 2020