LEGAL PROFESSION COMPLAINTS COMMITTEE and PAPAMIHAIL

[2021] WASAT 33

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION:   LEGAL PROFESSION COMPLAINTS COMMITTEE and PAPAMIHAIL [2021] WASAT 33

MEMBER:   PRESIDENT PRITCHARD

HEARD:   9 FEBRUARY 2021

DELIVERED          :   11 MARCH 2021

FILE NO/S:   VR 52 of 2019

BETWEEN:   LEGAL PROFESSION COMPLAINTS COMMITTEE

Applicant

AND

GEORGE PAPAMIHAIL

Respondent

Catchwords:

Practice and procedure - Programming orders - Orders made requiring Respondent to file an amended Statement of Issues, Facts and Contentions - Where document filed did not constitute a Statement of Issues, Facts and Contentions

Legislation:

Legal Profession Act 2008 (WA)
State Administrative Tribunal Act 2004 (WA), s 9, s 32(2), s 78(1)

Result:

Orders made

Category:    B

Representation:

Counsel:

Applicant	:	Ms CC Paterson
Respondent	:	Mr LA Tsaknis

Solicitors:

Applicant	:	In Person
Respondent	:	DWL Legal

Case(s) referred to in decision:

Nil

REASONS FOR DECISION OF THE TRIBUNAL

1. In a directions hearing on 9 February 2021, I made orders in the nature of programming orders in relation to these proceedings (Orders).

2. Order 1 of the Orders was in the following terms:

   By 9 March 2021 the Respondent is to file any amended Statement of Issues, Facts and Contentions which should expressly include an indication as to whether the facts outlined in paragraphs [1] to [126] of the Applicant's Application (filed 15 April 2019) are agreed, and if not agreed, the Respondent's response thereto.

3. On 22 February 2021, the Respondent requested that I provide written reasons for my decision to make Order 1.[1] 

   [1] Subsection of the 78(1) State Administrative Tribunal Act 2004 (WA) (SAT Act) provides that 'If the Tribunal makes a decision, whether or not a final decision, without having reserved its decision and does not give its reasons for the decision in writing, a party may, within the period of 28 days after the day on which the decision is given, request that the Tribunal give its reasons in writing.'

4. My reasons for making Order 1 were disclosed in the course of my exchanges with counsel during the directions hearing on 9 February 2021.  Those reasons are set out below, in a consolidated form, in a little more detail. 

5. To facilitate the comprehension of these reasons, it is necessary to begin by setting out some of the factual background.

Factual background and procedural history

1. These proceedings have been on foot since the Applicant filed its application on 15 April 2019 (Application).  Annexed to the Application was a statement of five grounds on which the Applicant alleges that the Respondent engaged in professional misconduct, together with a detailed statement of facts and contentions relied upon by the Applicant in relation to those grounds (Applicant's SIFC).  The facts alleged by the Applicant are set out in detail in paragraphs [1] ­ [96] of the Applicant's SIFC and the contentions in relation to the five grounds of the application are set out at paragraphs [97] ­ [126] of the Applicant's SIFC.

2. On 6 May 2019, Acting President Judge Sharp ordered that by 28 June 2019, the Respondent file a statement of issues, facts and contentions (Respondent's SIFC) in response to the Application.  On at least four occasions thereafter, the Tribunal extended the time within which the Respondent was to file the Respondent's SIFC. 

3. The Respondent filed a document entitled 'Respondent's Response to the Applicant's [SIFC]' on 15 July 2020 (Response). 

4. The Response comprises a total of 40 paragraphs, plus an attachment.  The 40 paragraphs in the Response appear to set out, in a narrative form, the Respondent's position in respect of each of the grounds in the Application.  The Response does not address, individually, each of the facts alleged in the Applicant's SIFC nor does it respond to the contentions advanced by the Applicant.  The Response does not indicate whether the facts set out in the Applicant's SIFC are agreed, or not agreed, nor does it state what (if any) additional facts are relied upon by the Respondent. 

5. The inadequacy of the Response was the subject of submissions by the parties at a directions hearing on 10 November 2020.  On that occasion, counsel for the Applicant submitted a minute of programming orders that she urged the Tribunal to make, which included an order that the Respondent file an amended Response.  Counsel for the Respondent indicated that it was not possible for the Respondent to file an amended Response because he did not yet have all of the documentation relied on by the Applicant in the proceedings.  He also referred to the fact that the Respondent had had difficulty in engaging counsel to act for him in these proceedings.[2]  The Tribunal was advised that four senior counsel had been briefed, but had not been able to continue to act, and that the Respondent was now endeavouring to engage a further (fifth) senior counsel.[3]

   [2] ts 2, 10 November 2020.

   [3] ts 3, 10 November 2020.

6. In those circumstances, I made orders on 10 November 2020 that by 18 December 2020 the Applicant file and serve the documents on which it proposed to rely in the proceeding.  I also made an order that the Respondent file the documents upon which he proposed to rely (which were not already in the Applicant's bundle) by 4 February 2021.  I indicated on that occasion that I would not make an order that the Respondent file an amended Response, or a Respondent's SIFC, at that stage, because of counsel's indication that the Respondent was unable to do so in the absence of seeing all the documents.[4]  I indicated to the parties that if the Respondent decided to rectify the deficiencies in the Response, he should confer with the Applicant about that matter.  I then listed the matter for a directions hearing on 9 February 2021, in order that consideration could be given to the exchange of witness statements and listing final hearing dates.

   [4] ts 9, 10 November 2020.

7. The Respondent did not file any of the documents on which he wished to rely by 4 February 2021, as he had been ordered to do.  Nor did the Respondent choose to file an amended Response.

The directions hearing on 9 February 2021

1. At the directions hearing on 9 February 2021, the parties invited the Tribunal to make orders for the filing of evidence.  However, when I considered those proposed orders, the difficulties likely to be caused by the inadequacy of the Response, especially the Respondent's failure to indicate his agreement or disagreement with each of the facts relied upon by the Applicant, were drawn into sharper relief. 

2. In the course of the directions hearing, I expressed the view that the Response which had been filed was wholly inadequate.[5]  I told the parties that while I had previously anticipated that, at that directions hearing, the Tribunal would be able to make orders for the filing and exchange of witness statements, the position was that I remained so unclear about the extent of the factual dispute between them that I did not think it would be productive to file witness statements at that stage.[6] 

   [5] ts 9, 9 February 2021.

   [6] ts 10, 9 February 2021.

3. I asked counsel for the Respondent whether it was the case that each and every fact set out in the Applicant's SIFC, commencing at paragraph [1] under the heading 'Statement of Facts and Contentions', was in dispute and his response was '[a]t the present time, yes'[7] although he indicated that he had not had the opportunity to discuss the matter with senior counsel, and so was 'not in a position to narrow anything at the moment'.[8]

   [7] ts 5, 9 February 2021.

   [8] ts 6, 9 February 2021.

4. The submission of counsel for the Applicant was that the Applicant was concerned about the state of the Response,[9] and she agreed that it would be productive to have a Response that actually did address the facts, by clarifying what the Respondent's position was, with respect to each fact alleged.[10]  Counsel for the Applicant submitted that the Applicant's approach, notwithstanding the inadequacy of the Response, had been to seek to have programming orders made to enable the matter to proceed to a final hearing (on the assumption that as all facts were disputed, the Applicant would need to prove every one of the facts on which it wished to rely).  That approach appears to have been borne from an understandable frustration with the glacial progress of the proceedings, and a desire to have the matter listed for a final hearing as quickly as possible.[11]  However, if orders were to be made by the Tribunal requiring the Respondent to file an amended Response, counsel for the Applicant urged that those orders expressly require not only that the Respondent indicate whether the facts alleged in the Application were agreed, but in the event that the facts were denied, that the Respondent indicate what his position was in response to each of those alleged facts.[12]

My reasons for making Order 1 of the Orders

[9] ts 10, 9 February 2021.

[10] ts 11, 9 February 2021.

[11] ts 11, 9 February 2021.

[12] ts 12, 9 February 2021.

1. My reasons for making Order 1 of the Orders were as follows.

2. First, the Response does not meet the Tribunal's expectations as to the content of a statement of issues, facts and contentions (SIFC). 

3. It is trite to observe that Tribunal is not bound to observe the practices and procedures typically employed in courts in this State.[13]  Consistent with its statutory objectives to resolve disputes speedily and with as little formality and technicality as possible, and to minimise the costs to the parties,[14] many of whom are not legally represented, the Tribunal's approach is to focus on an early identification of the issues which require resolution, and the facts which are actually in dispute.  That approach is designed to ensure that the focus of any mediation or hearing will be on the nub of the real dispute between the parties. 

   [13] SAT Act s 32(2).

   [14] Cf SAT Act s 9.

4. The Tribunal does not utilise pleadings.  Instead, the Tribunal will in most cases require each party to file a SIFC, which sets out the issues each party says arise for determination in the proceeding, the contentions or documents each party advances in relation to those issues, and the facts relevant to the determination of the issues.  In so far as the facts are concerned, the expectation of the Tribunal is that a respondent will respond to each of the facts alleged by an applicant in its SIFC, and will also outline any additional facts on which the respondent relies.

5. The purpose of a SIFC is thus to permit the Tribunal, and the parties, to quickly understand the key issues and arguments (contentions) in the case, and to identify what facts are in dispute.  Examples of the expected form of a statement of issues, facts and contentions can be found in on the Tribunal's website.[15] 

   [15] By way of example, Info Sheet 5 (which concerns documents that may be required in planning matters) gives an example of the format for a statement of issues, facts and contentions, and a responsive statement of issues, facts and contentions, and contemplates that the latter will indicate whether facts are either agreed or not agreed, and will indicate whether additional facts are relied upon.

6. The Response filed by the Respondent did not constitute a SIFC, and did not comply with the orders made by the Tribunal on 6 May 2019, for a document of that kind to be filed by the Respondent.  The Response does not set out the issues the Respondent says require determination or the Respondent's contentions in respect of those issues.  It is responsive to the Applicant's SIFC only to the extent that it responds to each of the grounds of the Application.  Even in that respect, the Response is far from a model of clarity, although it appears that the Respondent denies that his conduct in relation to each of the grounds constituted professional misconduct.  However, Order 1 of the Orders was directed primarily to the inadequacy of the Response in so far as it failed to respond to the facts alleged in the Applicant's SIFC.

7. Secondly, there was no evident reason why the Respondent was unable to respond to each of the facts alleged by the Applicant. 

8. If, and to the extent that, the Respondent needed to see the documents relied upon by the Applicant in order to be able to respond to the facts alleged, that difficulty could not have existed after 18 December 2020.  By that time, the Applicant had provided the Respondent with all of the documents on which it wished to rely.

9. In any event, as I pointed out to counsel for the Respondent, many of the facts upon which the Applicant relies are of the kind to which the Respondent should, independently, be able to provide a clear and simple response.  Many of those facts appear unlikely to be in dispute.  By way of example, the Applicant alleges that at all material times, the practitioner was an Australian legal practitioner, within the meaning of the Legal Profession Act 2008 (WA) and that he was the sole practitioner principal at George Papamihail Barristers and Solicitors (firm) in Northbridge.[16]  The Applicant alleges that certain practitioners were employed in the firm at particular periods.[17]  The Applicant also alleges that a particular individual (who is alleged to have been a client of the Respondent) and her husband were the registered proprietors of a property in Wembley (property),[18] that from a particular date the client resided at the property with her children,[19] and that on a particular date, the client and her husband were divorced.[20]  It is also alleged that the practitioners said to have been employed by the Respondent prepared a brief for a barrister in relation to a matter involving the client,[21] and that they met with that barrister on a particular date.[22]  There are a number of references to the content of particular documents,[23] and to orders made by the Supreme Court[24] or to steps taken by the Respondent and other practitioners in litigation,[25] and there are factual allegations as to certain steps taken in the course of an investigation by the Law Complaints Officer into the Respondent's conduct.[26]  It is unfathomable that the Respondent would be unable to indicate whether he agrees with each of these facts, or if he does not agree or is unable to agree, to indicate why that is so.

   [16] Applicant's SIFC Facts [2].

   [17] Applicant's SIFC Facts [3], [4].

   [18] Applicant's SIFC Facts [5].

   [19] Applicant's SIFC Facts [12].

   [20] Applicant's SIFC Facts [13].

   [21] Applicant's SIFC Facts [17].

   [22] Applicant's SIFC Facts [19].

   [23] See, eg, Applicant's SIFC Facts [49], [51], [53], [54], [56], [57], [58], [64], [77].

   [24] See, eg, Applicant's SIFC Facts [88]-[89].

   [25] See, eg, Applicant's SIFC Facts [60], [61], [65], [69], [78], [79].

   [26] See, eg, Applicant's SIFC Facts [90]-[96].

10. Thirdly, an amended Response which actually constitutes a SIFC need not involve the precision of a formal pleading in curial proceedings.  Counsel for the Respondent submitted that 'I have this fear that there may be – the confession and avoidance may be extraordinarily long.  We may have a huge document.  I mean the underlying fact may be agreed or something.  There may be agreement that so and so met with so and so, but what was discussed and what they've said and what so and so said, that might all be disagreed. … I don't want it to be treated as a pleading where it's said "Well, you agreed to this, but you didn't agree to anything else, therefore you're precluded now [from] taking issue with that".'[27] 

    [27] ts 8, 9 February 2021.

11. As I made clear to counsel for the Respondent, there is a middle ground between the existing approach taken in the Response, namely to fail to respond to the facts at all, and the concern counsel had expressed that the Respondent's SIFC would be extremely long and detailed. That middle ground was to indicate which facts were agreed, and in relation to facts which were not agreed, it was open to the Respondent to indicate that that was so, and to provide at least some indication of the nature of the disagreement.[28]  Counsel for the Respondent indicated that he did not have a difficulty with that approach, which he accepted was not an unfair approach to either party.[29]  Counsel for the Respondent also expressed concern that the Respondent 'may not have a response' to the facts alleged.[30]  As I told counsel for the Respondent, in that event the Respondent could simply indicate that in relation to the particular fact alleged, the Respondent did not know anything about the matter.[31]

    [28] ts 9, 9 February 2021.

    [29] ts 9, 9 February 2021.

    [30] ts 13, 9 February 2021.

    [31] ts 13, 9 February 2021.

12. Fourthly, in a practical sense, the way in which the Response is presently drafted means that it is not possible for the Applicant, or the Tribunal, to know, with any certainty, whether the facts relied upon the Applicant are really in dispute.  The suggestion that the Tribunal and the Applicant should proceed on the basis that all facts are disputed unless expressly agreed by the Respondent is, with respect, inconsistent with the proper conduct of proceedings in any court or tribunal, including this one.  Such an approach is likely to obfuscate the real issues, to increase the time required for a final hearing, to increase the time involved in the Tribunal reaching a determination of the issues, and to result in higher costs being incurred by the parties. 

Conclusion

1. It was, therefore, my view that the Respondent should file an amended Response which responded to each of the facts alleged by the Applicant, in the manner specified in Order 1, so that the Tribunal and the Applicant would be able to better understand the Respondent's position, and so that the matter could then proceed as quickly as possible to a final hearing, with the issues and facts in dispute clearly identified.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

GD

Associate to the Honourable Justice Pritchard

11 MARCH 2021