LEGAL PROFESSION COMPLAINTS COMMITTEE and RAYNEY - [2016] WASAT 142

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION: LEGAL PROFESSION COMPLAINTS COMMITTEE and RAYNEY [2016] WASAT 142

MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)

HEARD: 11 AUGUST 2016

DELIVERED : 19 DECEMBER 2016

FILE NO/S: VR 173 of 2015

BETWEEN: LEGAL PROFESSION COMPLAINTS COMMITTEE
Applicant
AND
LLOYD PATRICK RAYNEY
Respondent

Catchwords:

Abuse of process - Recusal - Proceedings could have and should have proceeded - Proceedings in tandem - Motive in abuse of process Legal Profession Complaints Committee privy of Legal Practice Board

Legislation:

Criminal Investigation Act 2006 (WA), s 42
Legal Profession Act 2008 (WA), s 19(2), s 12(2), s 13(1), s 15(6), s 30, s 32, s 38, s 56, s 56(2), s 56(4), s 60, s 78, s 78(a)(iii), s 403(1), s 403(2), s 421, s 421(1), s 424, s 425, s 426, s 428, s 428(2), s 431, s 438, s 439, s 440, s 441, s 448, s520(1), s 534, s 536, s 539, s 540, s 552, s 555, s 557, s 586, s 592, Pt 3, Pt 4 Div 4, Pt 5 Div 6, Pt 13, Pt 15 Div 2, Pt 16 Div 1 and Div 2
State Administrative Tribunal Act 2004 (WA), s 9, s 27(2), s 29, s 47, s 47(2), Pt 3 Div 2 and Div 3
Surveillance Devices Act 1988 (WA), s 5(1)
Telecommunications (Interception and Access) Act 1979 (Cth), s 7(1)(a)

Result:

Respondent's application under s 47(2) of the State Administrative Tribunal Act 2004 (WA) successful
Original application of Legal Profession Complaints Committee dismissed

Summary of Tribunal's decision:

Following the Tribunal's decision in Rayney and Legal Practice Board of Western Australia [2016] WASAT 7, which set aside the Legal Practice Board's decision to cancel Mr Lloyd Rayney's practising certificate, the Legal Profession Complaints Committee sought to proceed with some of the matters in its original application to the Tribunal filed on 9 October 2015 under s 428 of the Legal Profession Act 2008 (WA).
Mr Rayney made an application pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) that the Complaint Committee's proceedings be dismissed or struck out on the basis that these proceedings were an abuse of process.
The Tribunal concluded that there was no reasonable justification for the Complaints Committee proceedings not having been heard in tandem with the Board Proceedings based on legitimate considerations of convenience, cost or the like. Indeed, the efficiency and economy of the conduct of the litigation in the interests of the parties and the public as a whole required that the Legal Practice Board's proceedings and the Complaints Committee's proceedings be heard together.
The Tribunal made a detailed comparison of the Legal Practice Board's proceedings and the Complaints Committee's proceedings and found that there was substantial factual identity between the matters raised by the Board and the Committee. In the circumstances, it was not now open to the Complaints Committee to continue with its proceedings as to do so would constitute an abuse of process.

Category: B

Representation:

Counsel:

Applicant: Mr JC Vaughan SC
Respondent: Mr M Bennett

Solicitors:

Applicant: Legal Profession Complaints Committee
Respondent: Bennett + Co

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

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
AW v Rayney [2010] WASCA 161
Barristers Board v Young [2001] QCA 556
Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256; 227 ALR 425
Champerslife Pty Ltd v Manojlovski & Anor [2010] NSWCA 33
Christine Anne Donnellan (By her next friends Walter Francis Martins and Audrey Constance Martins joint plenary guardians and administrators) v The Public Trustee [2007] WASC 213
Gill Herron & Gardiner v Walton (1991) 25 NSWLR 190
Greenhalgh v Mallard [1947] 2 All ER 255
Haines v Australian Broadcasting Commission [1995] NSWSC 136; (1995) 43 NSWLR 404
Hunter v Chief Constable of the West Midlands Police And Others [1982] AC 529; [1981] UKHL 13; 3 ALL ER 727; [1981] 3 WLR 906
Jago v District Court of New South Wales And Others [1989] HCA 46; (1989) 168 CLR 23
Johnson v Gore Wood & Co [2002] 2 AC 1; [2007] 2 WLR 72; [2001] 1 ALL ER 381; [2001] 1 BCLC 313
Medical Board of Australia and Myers [2014] WASAT 137 (S)
Medical Board of Western Australia and Woollard [2016] WASAT 26
Michael Wilson & Partners Litmited v Nicholls [2011] HCA 48; (2011) 244 CLR 427
O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315
PNJ v The Queen [2009] HCA 6; (2009) 252 ALR 612; 83 ALJR 384; (2009) 193 A Crim R 54
Rayney and Legal Practice Board of Western Australia [2016] WASAT 7
Rayney v The State Of Western Australia [2009] WASC 105
Rippon v Chilcotin [2001] NSWCA 142; (2001) 53 NSWLR 198
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4
State Bank of New South Wales Ltd v Stenhouse Ltd [1997] Aust Torts Report 81-423
The State of Western Australia v Rayney [2013] WASCA 219
The State of Western Australia v Rayney [No 3] [2012] WASC 404
Timbercorp Finance Pty Ltd (in liquidation) v Collins; Timbercorp Finance Pty Ltd (in liquidation) v Tomes [2016] HCA 44
Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378; (1993) 112 ALR 289; (1993) 67 ALJR 485

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In order to place the reasons that follow in context it is necessary to set out a brief chronology:
a)the Legal Profession Complaints Committee (the LPCC) issued a notice under s 421 of the Legal Profession Act 2008 (WA) (LP Act) (the s 421 Notice) to Lloyd Patrick Rayney on 16 December 2013;
b)the Legal Practice Board of Western Australia (the Board) issued a notice of its intention to cancel Mr Rayney's practising certificate under s 56 of the LP Act (the s 56 Notice) to Mr Rayney on 2 June 2015;
c)the facts raised in the s 421 Notice and the s 56 Notice were substantially identical;
d)the Board decided to cancel Mr Rayney's practising certificate and gave notice to him on 17 July 2015;
e)Mr Rayney sought a review of the Board's decision before this Tribunal in VR 132 of 2015 (the Board Proceedings) on 20 July 2015;
f)the LPCC filed an application (the LPCC Substituted Application) under s 428 of the LP Act with this Tribunal in VR 173 of 2015 LPCC (the LPCC Proceedings) on 9 October 2015;
g)the Board Proceedings were heard by this Tribunal for four days commencing on 20 October 2015;
h)the Tribunal set aside the Board's decision to cancel Mr Rayney's practising certificate (Rayney and Legal Practice Board of Western Australia [2016] WASAT 7 (Rayney)); and
i)following the decision in Rayney, the LPCC sought to proceed with only some of the matters the subject of the LPCC's Original Application filed on 9 October 2015.
On 26 April 2016, Mr Rayney applied for an order, pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) that the LPCC Proceedings be dismissed or struck out. The basis of Mr Rayney's application is that the LPCC Proceedings are an abuse of process - s 47(1)(c) of the SAT Act.
On 26 April 2016, the LPCC applied for an order that the Tribunal members who heard the Board Proceedings and published the reasons for decision in Rayney recuse themselves from hearing the LPCC Proceedings.
The resolution of Mr Rayney's application requires a detailed comparison and consideration of the Board Proceedings and the LPCC Proceedings.
In essence, the issue that arises is relation to Mr Rayney's application is whether in the circumstances it is now open to the LPCC to continue with the LPCC Proceedings or whether to do so would constitute an abuse of process by the LPCC.
The Tribunal has found that it is not now open to the LPCC to continue with the LPCC Proceedings because to do so would constitute an abuse of process by the LPCC.
Since Mr Rayney's application was successful it is unnecessary to consider the LPCC's recusal application.

Section 9 of the SAT Act

Section 9 of the SAT Act provides that the main objectives of the Tribunal in dealing with matters within its jurisdiction are:
(a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and
(b)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and
(c)to make appropriate use of the knowledge and experience of Tribunal members.
Those who appear before the Tribunal are expected to cooperate with the Tribunal in complying with its objectives, particularly s 9(a) and s 9(b) of the SAT Act.

Section 47 of the SAT Act

Pursuant to s 47(1) and s 47(2) of the SAT Act, the Tribunal may make an order, on the application of a party or on its own initiative (s 47(4) of the SAT Act) that a proceeding be dismissed or struck out and make any appropriate orders if it believes that a proceeding is:
(a)frivolous, vexatious, misconceived or lacking in substance (s 47(1)(a) of the SAT Act);
(b)being used for an improper purpose (s 47(1)(b) of the SAT Act); or
(c)otherwise an abuse of process (s 47(1)(c) of the SAT Act).
In Medical Board of Western Australia and Woollard [2016] WASAT 26 (Woollard) at [13] the Tribunal stated:
The expression 'abuse of process' has an acquired legal meaning. Unless a contrary indication appears from the context, it is presumed that it is used in s 47 of the SAT Act in that context. There is no contrary indication in the SAT Act. Section 47(1) shows an intention to use the expression in its acquired meaning, that is, as that expression is used in the sense understood in a superior civil court of record (Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 at [28], [56]).

Abuse of process general principles

Abuses of process usually fall into one of three categories:
1)the court's procedures are invoked for an illegitimate purpose;
2)the use of the court's procedures is unjustifiably oppressive to one of the parties; or
3)the use of the court's procedures would bring the administration of justice into disrepute.
Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256; 227 ALR 425 at [15] Gleeson CJ, Gummow, Hayne and Crennan JJ (Batistatos); Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4 at [118] (Sheraz).
The categories of what constitutes an abuse of process are not closed: Batistatos at [15] Gleeson CJ, Gummow, Hayne and Crennan JJ; Michael Wilson & Partners Litmited v Nicholls [2011] HCA 48; (2011) 244 CLR 427 Gummow, Hayne, Crennan and Bell JJ.
The following broad principles apply when considering whether conduct amounts to an abuse of process:
a)a broad merits based judgment is required;
b)efficiency and economy in the conduct of litigation is in the interests of the parties and the public as a whole;
c)the court or tribunal should be satisfied that the party seeks to make a claim or raise an issue which (1) was made or raised and determined in an earlier proceeding, or (2) which ought reasonably to have been made or raised for determination in that earlier proceeding; and
d)the court or tribunal should be satisfied that the use of the court's or tribunals procedures would (1) be unjustifiably oppressive to a party or (2) would bring the administration of justice into disrepute.
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [33][34] per French CJ; Tomlinson v Ramsey Food Processing Pty Limited [2015]HCA 28 at [17], French CJ, Bell, Gageler & Keane JJ (Tomlinson); Johnson v Gore Wood & Co [2002] 2 AC 1; [2007] 2 WLR 72; [2001] 1 ALL ER 381; [2001] 1 BCLC 313 at 31, per Lord Bingham, (Lord Goff, Lord Cooke & Lord Hutton agreeing).
A superior court has inherent power, and this Tribunal statutory power, to stay proceedings to prevent a misuse of its procedure which although not inconsistent with the literal application of its procedural rules, would nevertheless bring the administration of justice into disrepute among rightthinking people: Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378; (1993) 112 ALR 289; (1993) 67 ALJR 485 (Walton); Hunter v Chief Constable of the West Midlands Police And Others [1982] AC 529; [1981] UKHL 13; 3 ALL ER 727; [1981] 3 WLR 906 at 536 (Hunter), Jago v District Court of New South WalesAnd Others [1989] HCA 46; (1989) 168 CLR 23 Mason CJ, Deane J & Gaudron J (Jago); O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315 at [100], Beasley P (McColl JA & Tobias AJA agreeing) (O'Shane).
An abuse of process can relate to any procedural step in the proceedings: O'Shane, Beasley P (McColl JA & Tobias AJA agreeing) at [104], PNJ v The Queen [2009]HCA6; (2009) 252 ALR 612; 83ALJR384; (2009) 193 A Crim R 54 at [3].
Determination of whether there has been an abuse of process requires a consideration of substance, not form see Sheraz at [20].
In O'Shane at [111] the majority stated:
The authorities also state that the power to stay proceedings permanently on the ground that they are an abuse of process should be exercised with caution: Moore & Ors v Inglis (1976) 50 ALJR 589, at 593 and only in the most exceptional or extreme case: Walton v Gardiner [1993] HCA 77; 177 CLR 378, at 392, per Mason CJ, Deane and Dawson JJ (approving the Court of Appeal's formulation of the test in Gill v Walton (1991) 25 NSWLR 190). The onus of satisfying the court that there is an abuse of process lies upon the party alleging it and that the onus is 'a heavy one': Williams v Spautz [1992] HCA 34; 174 CLR 509, at 529, per Mason CJ, Dawson, Toohey and McHugh JJ. (See also Woollard at [27])
Abuse of process is inherently broader and more flexible than estoppel and is capable of application in any circumstances in which the use of a court's or tribunal's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute: Timbercorp Finance Pty Ltd (in liquidation) v Collins; Timbercorp Finance Pty Ltd (in liquidation) v Tomes [2016] HCA 44 at [69], French CJ, Kiefel, Keane & Nettle JJ.
In order to establish an estoppel there must be a privy in interest between the parties. There is no such requirement in relation to a finding of an abuse of process. In Tomlinson at [25][26] the majority stated:
Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at 262 [1], 265 [9]; [2006] HCA 27, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute PNJ v The Queen [2009] HCA 6; (2009) 83 ALJR 384 at 385-386 [3]; [2009] HCA 6; 252 ALR 612 at 613; [2009] HCA 6. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at 393; [1993] HCA 77, citing Reichel v Magrath (1889) 14 App Cas 665 at 668; Coffey v Secretary, Department of Social Security [1999] FCA 375; (1999) 86 FCR 434 at 443 [25]. (Note citations generally omitted)
Similarly, in Sheraz at [11] Murphy JA stated:
It is well-established by a long line of authority, including Reichel and Walton, that the principles of abuse of process are not confined by the doctrines of res judicata, issue estoppel and Anshun estoppel. A court may invoke those principles to prevent attempts to litigate an issue which should have been litigated in earlier proceedings, as well as to prevent attempts to re-litigate an issue which has, in substance, been litigated and determined in earlier proceedings. See, for example, Connelly v Director of Public Prosecutions [1964] AC 1254, 1361 - 1362 (Lord Pearce); Rogers (286 - 287); Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 [58] - [70] (French J); Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 226 CLR 328 [31] - [32] (Gleeson CJ, Heydon & Crennan JJ); Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [34] (French CJ); Plaintiff S3/2013 v Minister for Immigration and Citizenship [2013] HCA 22; (2013) 87 ALJR 676 [11] - [12] (Gageler J).
In Johnson, at 23, Lord Bingham, (Lord Goff, Lord Cooke, Lord Hutton agreeing) cited Somervall LJ in Greenhalgh v Mallard [1947] 2 All ER 255 at 257 where his Honour said abuse of process may cover:
Issues or facts which are clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of process to allow a new proceeding to be started in respect of them.
In order for a court or tribunal to find an abuse of process it is not necessary that the party bringing the application said to constitute an abuse of process was a party to the previous proceeding. In Tomlinson at [26], the majority stated:
… Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel (O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315; (2013) 85 NSWLR 698 at 722-724 [99]- [111]).
Similarly in Sheraz, Murphy JA stated at [118][121]:
Litigation may be precluded on the grounds of abuse of process, even where there is no identity of parties: Reichel v Magrath (1889) 14 App Cas 665; Haines v Australian Broadcasting Corporation [1995] NSWSC 136; (1995) 43 NSWLR 404; Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198; Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130 [97(12)]. In Reichel, Lord Halsbury characterised Reichel's conduct in the second action as merely 'changing the form of the proceedings to set the same case again' (668). (It may be noted that it has also been said that there were issues estoppel which were 'not recognised and acknowledged' in that case: Res Judicata 4th ed [26.02].)
It is important to recognise that the question is not whether proceedings could have been brought, but whether they should have been brought. In Johnson, at 31, Lord Bingham, (Lord Goff, Lord Cooke, Lord Hutton agreeing) said:
The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. … It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to regard so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, meritsbased judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before …

In obiter comments in Johnson it was recognised that a failure to issue proceedings and have them heard in tandem may constitute an abuse of process. Johnson was a businessman who conducted his business through WWH Ltd. For all practical purposes, WWH Ltd was the corporate embodiment of Johnson. Gore Wood and Co acted for both he and WWH Ltd. WWH Ltd commenced proceedings against Gore Wood & Co which were settled at trial. Johnson then commenced a personal action against Gore Wood & Co. Johnson's personal claim could have been commenced at the same time as WWH Ltd's claim. Gore Wood & Co sought to strike Johnson's action out as an abuse of process. On affidavit, Johnson advanced a number of grounds for not advancing his claim at the same time as WWH Ltd made its claim, including lack of funds, that the hearing of WWH Ltd's claim would be delayed and his need to find new employment. In the event, the House of Lords did not find that Johnson's conduct amounted to an abuse of process.
In Johnson, at 32 Lord Bingham said:
Two subsidiary arguments were advanced … in the courts below and rejected by each. The first was that the rule in Henderson v Henderson … did not apply to Mr Johnson since he had not been the plaintiff in the first action … In my judgment this argument was rightly rejected. A formulaic approach to application of the rule would be mistaken. [The company] was the corporate embodiment of Mr Johnson. He made decisions and gave instructions on its behalf. If he had wished to include his personal claim in the company's action, or to issue proceedings in tandem with those of the company, he had power to do so.
In Champerslife Pty Ltd v Manojlovski & Anor [2010] NSWCA 33, Handley AJA referred to Lord Bingham's speech and said at [114]:
That decision is hardly surprising. Earlier proceedings by one litigant could not make later proceedings by another an abuse of process unless there was a relevant connection between the litigants. Since the issue was abuse of process realities must be relevant. The 'broad merits-based judgment' excluded any narrow or artificial approach.
Handley AJA went on to say at [115]:
Here the order of events is reversed. Mr Lawrence was the defendant in the first case, and his company the plaintiff in the second. The company did not control Mr Lawrence, but the order of events cannot affect the result in such a case. Mr Lawrence could have had the company issue proceedings and applied to have them heard in tandem with the proceedings against himself. The existence of an Anshun estoppel must be determined in the light of such realities.
It is clear from the passages referred to above that a failure to have proceedings heard in tandem may constitute an abuse of process.
A finding of an abuse of process does not require a finding as to motive. In O'Shane, Beasley P stated at [108]:
United Kingdom authority is to the same effect, as is apparent from the High Court's references to such decisions dating back to Reichel v Magrath. The position is the same in Canada. In Toronto (City) v C.U.P.E Local79 [2003] 3 SCR 77; SCC 63, Arbour J (all members of the Court concurring) stressed that the motives of a party in seeking re-litigation of an issue are irrelevant. Rather, the emphasis must be upon the integrity of the adjudicative process. As her Honour stated, at [46]:
... [motive in bringing proceedings] is of little significance in the application of the doctrine of abuse of process. A desire to attack a judicial finding is not, in itself, an improper purpose. The law permits that objective to be pursued through various reviewing mechanisms, such as appeals or judicial review. Indeed, reviewability is an important aspect of finality. A decision is final and binding on the parties only when all available reviews have been exhausted or abandoned. What is improper is to attempt to impeach a judicial finding by the impermissible route of relitigation in a different forum.
Her Honour added that there was no reason to constrain the doctrine of abuse of process to cases where a plaintiff had initiated the re-litigation.
However, motive is not irrelevant. In Sheraz at [132][134] Murphy JA stated:
Handley AJA referred, at [111], to Johnson v Gore Wood & Co [2002] 2 AC 1 where Lord Bingham said:
The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied … that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional elements such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings would be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party (31).

Some relevant factors

The courts have set out a number of questions that may be relevant in determining whether there has been an abuse of process. The list is not exhaustive.
1)Was there no reasonable justification for the second proceeding based on legitimate considerations of convenience, cost or the like?
2)What was the importance of the issue in and to the earlier proceeding, including whether it is an evidentiary or ultimate issue?
3)What was the opportunity available and taken to fully litigate the issue?
4)What were the terms and finality of the finding as to the issue?
5)What was the identity between the relevant issues in the two proceedings?
6)Was there any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceeding?
7)What was the extent of the oppression and unfairness to the other party if the issue was relitigated?
8)What is the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice?
9)What is the overall balance of justice to the alleged abuser against the matters supportive of an abuse of process?
Sheraz at [134]; State Bank of New South Wales Ltd v Stenhouse Ltd [1997] Aust Torts Report 81-423 at 64,089, by Giles CJ Comm; Rippon v Chilcotin [2001] NSWCA 142; (2001) 53 NSWLR 198 per Handley JA at [32] (Mason P and Heydon JA agreeing); Haines v Australian Broadcasting Commission [1995] NSWSC 136; (1995) 43 NSWLR 404; O'Shane at [107].
It is important to note that these questions are not necessarily directly applicable to a situation where a party could have and should have raised an issue. In that respect an application of these principles is more akin to res judicata and issue estoppel than Anshun estoppel, although they still provides a useful guide.

Abuse of process in disciplinary proceedings

The general principles in relation to abuse of process in disciplinary proceedings were enunciated by the Tribunal in Woollard at [26][28] as follows:
The general principles
The Tribunal has the power to dismiss proceedings if it is satisfied that the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process (Gill at 200 per Gleeson CJ; at 204205 per Kirby P; Walton at 392 per Mason CJ, Deane and Dawson JJ).
The Tribunal would only be so satisfied that there has been an abuse of process in an exceptional or extreme case (Gill at 204 per Kirby P, Jago at 34 per Mason CJ; Walton at 392 per Mason CJ).
Either prejudice arising from delay or double jeopardy may provide a basis for dismissal of an application as an abuse of process (Herron at 253 per McHugh JA, Gill at 196 per Gleeson CJ).
In Woollard, this Tribunal stated at [24] and [25]:
The series of cases that arose from Chelmsford and the decision in Jago considered three areas in relation to dismissal for abuse of process in disciplinary hearings:
a) prejudice by reason of delay;
b) 'double jeopardy'; and
c) public interest.
These principles are not an exhaustive statement of the basis upon which disciplinary proceedings may be dismissed for abuse of process. However, they are sufficient to determine Dr Woollard's application.
The principles underlying the doctrine of double jeopardy were summarised by this this Tribunal in Woollard at [36][40] by reference to the decision in Gill Herron & Gardiner v Walton (1991) 25 NSWLR 190 (Gill):
Double jeopardy principles
In Gill, at 197, Gleeson CJ stated:
In summary, the new complaints are not the very complaints that were previously stayed, but they arise out of the same pattern of professional conduct as gave rise to the earlier complaints, and there is a substantial degree of overlapping between the issues to which the new complaints give rise and the issues that would have arisen under the previous complaints …
In Gill, at 200, Gleeson CJ stated:
The present case also gives rise to a difficult problem of what is sometimes referred to as a principle or rule against double jeopardy: cf Davern v Messel (1984) 155 CLR 21 and Cooke v Purcell(1988) 14 NSWLR 51. As Mahoney JA observed in the latter case (at 68) this is a principle that informs rather than states the law, and, when it is invoked in a given case, it may be necessary to address the particular circumstances of its suggested application with some care. In the former case Gibbs CJ (at 33) warned that the rule against double jeopardy is not to be applied as a 'mere fetish', and the judgments of the various members of the High Court contain numerous examples of the wide variety of practical problems that could be grouped under the rubric of 'double jeopardy' and of the differing solutions that have resulted.
It cannot be said that the present case falls squarely within any of the settled particular instances of specific legal rules informed by the principle against double jeopardy. There was no hearing on the merits of the original charges against the claimants. Indeed the original charges, although similar, are not identical to, the present charges. This is not a case where a defence of, or analogous to, autrefois acquit could be raised.
In Gill, at 201, Gleeson CJ also stated:
There is considerable force in these submissions. The combination of the time that has elapsed, by virtue of unreasonable delay on the part of the department, between the time of the conduct in question and the time of the laying of the new charges, with its consequent prejudice, and of the fact that the new charges are closely related to charges that this Court ordered should not be proceeded with, and that the claimants were therefore entitled to regard as behind them, gives rise to a powerful argument that what is now attempted by the department is oppressive. In Herron v McGregor, McHugh JA (at 257) described the original proceedings as 'tantamount to persecution'.
Similarly, Kirby P found the complaints in Gill were a species of double jeopardy. He stated, at 206–207:
The real explanation for the reworking of the particulars and the effective revival of the disciplinary proceedings, despite this Court's earlier clear orders, appears to be the punishment of the claimants for what they did so long ago. In the circumstances, such a revival of the proceedings is unjustifiably oppressive. It therefore involves consideration by the Court of the request by the claimants that they be protected, including against the form of double jeopardy which the revived proceedings constitute: see Cooke v Purcell(1988) 14 NSWLR 51 at 56ff.
Protection against double jeopardy … applies equally, I believe, to an inquiry into the right of a person to continue the practice of his or her profession, the denial of which would have grave consequences for that person's reputation and livelihood. The present may not be a pure case of double jeopardy, in the sense that the complaints and factual material before the Court today are not precisely the same as they were in 1986. But if, in substance, the complaints are the same and the evidence lost and disadvantages suffered by the claimants are substantially the same, the new case is a species of double jeopardy: cf R v Tait and Bartley (1979) 46 FLR 386 at 388; 24 ALR 473 at 476; R v Hayes (1987) 29 A Crim R 452 at 467; cf Davern v Messel (1984) 155 CLR 21 at 67f.
The test enunciated in Gill is:
a)whether the complaints are, in substance, the same or closely related; and
b)whether by reason of the conduct of the regulator:
i)the parties the subject of the complaints are entitled to regard the proceedings as behind them (Gleeson CJ); or
ii)the bringing of the second proceedings can be seen as punitive (Kirby P).
The LPCC has submitted that, having regard to more recent authorities than Gill, the ultimate issue here is whether continuation of the proceedings is so unfairly and unjustifiably oppressive as to constitute an abuse of process and that the statements of Gleeson CJ and Kirby P in Gill ought be understood as explanations of why, on the particular circumstances in Gill, the disciplinary proceedings then under consideration were unfairly and unjustifiably oppressive. The Tribunal agrees with the LPCC's submissions. As this Tribunal expressly stated at [25], Woollard is not an exhaustive statement of the circumstances in which separate disciplinary proceedings can constitute an abuse of process.

The LPCC and the complaints process

Section 421 of the LP Act further provides:
(1)The Complaints Committee may, on its own initiative, investigate the conduct of an Australian legal practitioner if the Complaints Committee has reasonable cause to suspect the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.
(2)The Complaints Committee must investigate each complaint.
(3)Subsection (2) does not apply to
(a)a complaint that is referred to the State Administrative Tribunal; or
(b)a complaint that is dismissed or withdrawn under this Part; or
(c)a complaint to the extent that it is the subject of mediation under this Part.
The LPCC is not required to conduct an investigation before determining to refer a matter to the Tribunal (LP Act, s 428(2)).
Part 15, Div 2 of the LP Act provides for the investigation of, inter alia, a complaint under s 421(1) of the LP Act. Those provisions include s 520(1) which provides:
For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, an investigator may, by notice or summons served on the lawyer, require the lawyer to do any one or more of the following
(a)to produce, at or before a specified time and at a specified place, any specified document (or a copy of the document);
(b)to produce, at a specified time and at a specified place, any specified document (or a copy of the document);
(c)to provide written information on or before a specified date;
(d)to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner.
Section 424 of the LP Act provides
(1)After an investigation under section 421 is completed, the Complaints Committee must
(a)in the case of the investigation of a complaint, dismiss the complaint under section 425 or, in the case of an investigation on the initiative of the Complaints Committee, decide to take no further action; or
(b)take action under section 426; or
(c)refer the matter to the State Administrative Tribunal under section 428.
(2)Nothing in this section affects section 416.
The LP Act does not define when an investigation is completed. However, it cannot be the case that the LPCC must take every possible step in an investigation before the investigation is completed. This is particularly so given that the LPCC is not required to hold an investigation before referring a matter to the Tribunal. It is not a case of all or nothing. An investigation is completed under s 424(1) when the LPCC has reasonable cause to believe that the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct; that is to say, once the LPCC has reasonable cause to form a belief rather than simply to suspect, its investigation is complete.
Section 425 of the LP Act further provides:
After an investigation of a complaint against an Australian legal practitioner is completed, the Complaints Committee may dismiss the complaint if satisfied that
(a) there is no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct; or
(b)it is in the public interest to do so.
Section 428 of the LP Act provides:
(1)If the Complaints Committee determines that a matter should be heard by the State Administrative Tribunal the Committee may refer the matter to the Tribunal.
(2)The Complaints Committee is not limited under subsection (1) by the terms of any complaint it has received or by the subject matter of any investigation it has conducted and is not required to conduct an investigation before referring a matter to the State Administrative Tribunal.
The LPCC has submitted that it is of significance that the Board does not have investigative powers - these are reserved to the LPCC. However, the LPCC has not identified any aspect in which this was of any significance in its investigation of Mr Rayney, as compared to the inquiries carried out by the Board. The Board was able to prepare for and conduct the Board Proceedings. The Tribunal does not accept that the fact that the Board does not have investigative powers is significant.

The Board and the cancellation of a practising certificate - s 56

Section 56 of the LP Act provides:
…
(2)If the Board believes a ground exists to … cancel a local practising certificate (the proposed action), the Board must give the holder a notice that
(a)states the proposed action[.]
and
(b)states the grounds for proposing to take the proposed action; and
(c)outlines the facts and circumstances that form the basis for the Board's belief; and
(d)invites the holder to make written representations to the Board within a specified time of not less than 7 days and not more than 28 days, as to why the proposed action should not be taken.
(3)If, after considering all written representations made within the specified time and, in its discretion, written representations made after the specified time, the Board still believes a ground exists to take the proposed action, the Board may
…
or
(c)if the notice stated the proposed action was to cancel the practising certificate
(i)cancel the certificate; or
(ii)suspend the certificate for a period; or
(iii)amend the certificate in a less onerous way the Board considers appropriate because of the representations.
(4)If the Board decides to amend, suspend or cancel the practising certificate, the Board must give the holder an information notice about the decision.

Establishment of the Board and the LPCC

Part 16 of the LP Act is titled 'Regulatory Authorities'. That part comprises two divisions. Division 1 concerns the Board. Division 2 concerns the LPCC.
Subdivision 1 of Div 1 of Pt 16 of the LP Act provides that the Board is established and that it is a body corporate (LP Act s 534), prescribes its composition (LP Act s 536) and outlines its functions and powers (LP Act s 539 and s 540).
Subdivision 1 of Div 2 of Pt 16 of the LP Act provides that the LPCC is established (LP Act s 555(1)) and that 'it is a committee of the Board' (LP Act s 555(2)). Significantly, the LPCC is not a body corporate. It has no separate persona from the Board.

Pursuant to s 552(1) of the LP Act, the Board may appoint and discharge committees of Board members. A committee appointed pursuant to s 552(1) must 'comply with any direction or requirement of the Board' (LP Act s 552(2)). As noted in s 555(2) of the LP Act the LPCC is stated to be 'a committee of the Board'. Although the LPCC is a committee of the Board, the broad powers that the Board has in relation to other committees of the Board is limited by s 557(4) of the LP Act which provides that '[t]he Board must not direct or impose any requirement on the Complaints Committee as to the performance of its functions'. It remains the case that the LPCC is a committee of the Board, albeit that the Board's powers are limited by s 557(4) of the LP Act.
Although the LPCC has separate functions it is still a committee of the Board. Accordingly, the LPCC is a privy of the Board. Its actions cannot be considered in isolation from those of the Board. The fact that the Board must not direct or impose any requirements on the LPCC does not lead to the conclusion that the steps taken by and findings made by the Board, or the Tribunal on review, are irrelevant to the LPCC. Nor can the Tribunal ignore those findings when considering a complaint.
The functions of the LPCC are set out in s 557(1) and (2) of the LP Act which provides:
(1)The Complaints Committee has the functions conferred on it by this or any other Act.
(2)Without limiting subsection (1), it is a function of the Complaints Committee
(a)to supervise the conduct of legal practitioners; and
(b)to inquire into complaints received under Part 13 Division 4 and, where the Complaints Committee so determines whether for cause or not and whether the Complaints Committee has received a complaint or not, any
(i)conduct on the part of a legal practitioner; or
(ii)matters relating to legal practice,
for the purpose of determining whether it may constitute unsatisfactory professional conduct or professional misconduct; and
(c)if the Complaints Committee considers it appropriate to do so, to institute professional disciplinary proceedings against a legal practitioner in the State Administrative Tribunal; and
(d)to supervise and direct the Law Complaints Officer in the performance of the functions of that officer; and
(e)to comment upon, and make recommendations in respect of, this Act, the regulations and the legal profession rules insofar as they may affect the functions of the Complaints Committee.
Pursuant to s 557(3) and s 557(5) of the LP Act, the Board is required to provide to the LPCC such facilities and services as are reasonably necessary for the LPCC to perform its functions.
It would be an error to conclude that because the Board and the LPCC have separate functions they are to be regarded as operating in separate silos. They are both bodies constituted by the same Act, one of the purposes of which is the regulation of legal practice in Western Australia.

The working relationship between the Board and the LPCC

There is obviously a close working relationship between the Board and the LPCC. In the Legal Profession Complaints Committee Western Australia 2015 Annual Report, the LPCC states:
… of its relationship with the LPB, that 'it works closely with the Board to ensure the effective operation of the regulatory scheme governing legal practitioners and
that one of its objectives is to 'provide an efficient and expeditious system for dealing with complaints' and to 'initiate disciplinary proceedings as appropriate'.
This close working relationship reflects the fact that the LPCC is a committee of the Board. There is nothing inappropriate in a committee exchanging information with its Board.
Further, pursuant to s 586 of the LP Act, a local regulatory authority may disclose information to another local regulatory authority about any matter relating to or arising under the LP Act or a corresponding law. The phrase 'local regulatory authority' is defined in the LP Act to mean 'an authority having functions under this Act'. Both the Board and the LPCC are 'local regulatory authorities'.
There is both a practical and a statutory basis for the exchange of information between the Board and the LPCC.

The relationship between the Board and the LPCC in relation to Mr Rayney

The LPCC and the Board fully cooperated and communicated with each other during the investigation phase. The matters relied upon by both the Board and the LPCC were drawn from the same factual pool of material.
It is clear from the material produced by the Board (see the affidavit of Amanda Sue Templeton at AST-2 to AST-24) that at least from September 2014, the Board and the LPCC:
•were aware of the separate investigations being conducted by the other;
•kept each other apprised of the status and developments of their investigations against Mr Rayney; and
•exchanged information and documents obtained in the context of their separate investigations against Mr Rayney including documents filed by Mr Rayney in the Board Proceedings.
The closeness of the exchange of information between the Board and the LPCC is evidenced by the fact that the Board's Cancellation Notice was provided to the LPCC on 17 July 2015 so that the LPCC could consider the Rayney investigation before it was served on Mr Rayney (AST-15 at page 42).
The exchange of information between the Board and the LPCC during the course of their respective inquiries into Mr Rayney is relevant to whether there was in fact an abuse of process by the LPCC. Any requests for information or documents from Mr Rayney by the LPCC need to be considered in the light of the fact that the LPCC had access to documents provided to the Board by Mr Rayney.

There was no unfairness to Mr Rayney in the exchange of information in the course of the investigations

At paragraph 18 of his written submissions, Mr Rayney asserts that the LPCC and the Board conducted their respective 'investigations' in a manner that was 'clearly not independent of the other and as such, was unfair and prejudicial to Mr Rayney'. Mr Rayney appears to contend that, in part, this unfairness and prejudice arose as a consequence of the LPCC and the Board exchanging information and documents.
The Tribunal does not accept that there was any unfairness to Mr Rayney in the exchange of the information because that exchange is part of the Board's and the LPCC's statutory functions as parts of the same regulatory framework.

The functions of the Board

Among other things the Board regulates the admission of local lawyers to the legal profession (LP Act, Pt 4 Div 4) and the granting and renewal of practising certificates (LP Act, Pt 5). In respect of both of these functions the Board must consider whether the applicant is a 'fit and proper person' (as to admissions, LP Act, s 30 and s 32; as to practising certificates, s 38).
A decision of the Board to cancel a practising certificate may be the subject of an application to the Tribunal in its 'review' (refer to the SAT Act, Pt 3 Div 3) jurisdiction (LP Act, s 78). On such an application the Tribunal stands in the shoes of the Board, making a fresh decision in place of the Board, arriving at the 'correct and preferable decision' on the review (SAT Act, s 27(2) and s 29).
Pursuant to s 592 of the LP Act, the Board can also commence proceedings for an offence against the LP Act. Such proceedings are to be heard by a court of summary jurisdiction constituted by a Magistrate (LP Act, s 592(2)). There are a range of offences against the Act.
A number of offences can be found in Pt 3 of the LP Act. It is an offence under Pt 3 to engage in legal practice without being an Australian legal practitioner (LP Act s 12(2), to represent an entitlement to engage in legal practice without being an Australian legal practitioner (LP Act, s 13(1), and to apply to become a lay associate where the applicant has been convicted of a serious offence, but has not informed the law practice of the conviction (LP Act, s 15(6).

The functions of the LPCC

The functions of the LPCC are described, inclusively, in s 557 of the LP Act. As set out above, s 557(2)(b) provides that the LPCC is to inquire into conduct on the part of a legal practitioner 'for the purpose of determining whether it may constitute unsatisfactory professional conduct or professional misconduct'. The section also provides that it is a function of the LPCC to, if it considers it appropriate to do so, institute professional disciplinary proceedings against a legal practitioner in the Tribunal (LP Act, s 557(2)).
The LPCC's functions are further addressed in Pt 13 of the LP Act, which deals with complaints and discipline.
When conducting a complaint investigation the LPCC, by its members and the Law Complaints Officer, has a wide range of investigatory powers under Pt 15 of the LP Act.

The role of the Tribunal in disciplinary proceedings

Pursuant to s 438(1) of the LP Act the Tribunal has jurisdiction to make a finding that a practitioner has engaged in unsatisfactory professional conduct or professional misconduct. Such proceedings fall within the Tribunal's 'original' jurisdiction (SAT Act, Pt 3 Div 2).
Pursuant to s 438(2) of the LP Act, if the Tribunal is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may make and transmit a report on the finding to the Full Bench of the Supreme Court or make any one or more of the orders in s 439, s 440 or s 441. Section 438(3) provides that the Tribunal may make interim orders if it decides to transmit a report to the Full Bench of the Supreme Court.
Section 439 of the LP Act provides that the Tribunal may cancel, suspend or impose conditions on a practitioner's practising certificate. The Tribunal may also publically or privately reprimand the practitioner. Section 440 concerns recommendations the Tribunal may make in respect of interstate rolls and practising certificates. Pursuant to s 441, the Tribunal may, among other things, order the practitioner to pay certain amounts, to attend training or be subject to supervision, or to attend counselling. The Tribunal may also make a compensation order under s 448 of the LP Act.

The role of the Supreme Court in disciplinary proceedings

If the Tribunal transmits a report to the Full Bench of the Supreme Court, the Court may:
1)make any order the Tribunal may make under s 439, s 440 and s 441; or
2)order that the practitioner be removed from the roll.
The Court may also do a combination of both of these things.

The relationship between Pt 13 of the LP Act and the functions of the Board

The LPCC submits that the Board and the LPCC have different, and exclusive, functions. The LPCC does not prosecute offences against the LP Act. Nor is the LPCC responsible for the grant, renewal, suspension or cancellation of practising certificates.
Section 403(1) of the LP Act defines the term professional misconduct. Significantly, s 403(2) of the LP Act provides:
For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate. (Tribunal emphasis)
Under the LP Act there is obviously a close relationship between the factors that may be relevant to a decision by the Board under s 56 and the factors that may be relevant to a complaint by the LPCC.
Both the Board and its committee, the LPCC operate under the LP Act to regulate the profession, particularly in relation to what may broadly be regarded as the conduct of legal practitioners. As noted above, it would be an error to conclude that the LPCC and the Board are required to operate in separate silos when considering practitioner's conduct.
The LP Act anticipates that the LPCC may institute professional disciplinary proceedings against a legal practitioner in the Tribunal in respect of certain matters where that matter has already been the subject of action by the Board.
Section 19(2) of the LP Act provides that a person may be punished for an offence under Pt 3 as well as being dealt with under Pt 13 in respect of the same matter. The LPCC notes that a lawyer could be tried before a Magistrate for engaging in legal practice in contravention of the LP Act, but also investigated and then tried, before the Tribunal, on the basis that the same conduct was unsatisfactory professional conduct or professional misconduct.
Whilst the LPCC's submission is correct, the matters that might be the subject of an inquiry by the Tribunal are not as open ended as the LPCC's submissions might suggest. As the authorities make clear and as the Tribunal stated in Rayney at [79]:
Where a practitioner has been convicted, the position is as stated in Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474 (Sudath), where Meagher JA, Whealy JA agreeing, held:
[83]It is not uncommon for the jurisdiction of an administrative tribunal to exercise disciplinary or other powers to be founded upon its being satisfied after inquiry as to the fact of a conviction or as to a person not being of good character or being unfit to practise. In the latter cases, if there is a contest as to the occurrence or significance of the conduct relied upon as relevant to the assessment of character or fitness to practise, material which tends to show whether that conduct occurred or places it in context is relevant to the subject matter of the inquiry. This remains so even if the conduct has been the subject of an earlier conviction or adverse finding and the evidence sought to be led contradicts the finding or facts essential for the conviction. The mere fact of inconsistency does not of itself excuse the Tribunal from inquiring into the relevant facts or give rise to an abuse of its process. None of this means that a tribunal cannot or should not give significant weight to earlier convictions or findings of a court when addressing whether conduct has occurred. Nor is it the position that a tribunal is required to receive evidence about such conduct if the purpose for which it is proffered is not to challenge the fact of the conduct but to impugn an earlier conviction or the fairness of an earlier trial.
…
[101]In relation to the second complaint, the respondent relies on conduct which includes the conduct underlying the appellant's two convictions. The inquiry in relation to that complaint could result in the appellant being fined, suspended or deregistered. He has an interest in challenging or explaining the alleged conduct as part of his response to it. If he puts that conduct in issue, the Tribunal's obligation is to inquire and make findings as to whether it occurred. In doing so it must base its decision upon relevant material. Whilst it is not bound by the rules of evidence and may inform itself as it sees fit, it must accord the appellant procedural fairness. In the circumstances, that requires that the appellant be given the opportunity to lead evidence inconsistent with that relied on by the respondent. It does not matter that this material also challenges facts on which the convictions were based, provided that it is not proffered for the purpose of impugning those convictions or the fairness of his trial.
[102]The requirement that the Tribunal allow the appellant to present relevant and probative material in response to the evidence relied upon by the respondent in relation to the second complaint, does not mean that the Tribunal is required to rehear the matters dealt with in the District Court. It is entitled to receive as evidence before it, the certificates of conviction, the trial judge's findings in his remarks on sentence and the evidence before the trial judge. It must consider all of the evidence and material before it and in the process of making findings of fact, it is entitled to give those matters significant weight.
The LPCC further submitted that, similarly, s 60 of the LP Act provides that nothing in Pt 5 Div 6 of the LP Act (the amendment, suspension or cancellation of a practising certificate) prevents a complaint from being made, or an investigation being initiated, under Pt 13 (complaints and discipline) about 'a matter to which [Div 6] relates'.
There are a broad range of matters to which Div 6 may relate. Anything that might found a belief by the Board, that a ground exists for an amendment, suspension or cancellation is 'matter' to which Div 6 relates. The cancellation of a practising certificate under s 56 of the LP Act including on the ground that the holder is no longer a fit and proper person to hold the certificate is within s 60.
The LPCC submits that by the operation of s 60 of the LP Act, Parliament expressly contemplated that any such 'matter' could be pursued by the Board, for the purposes of Pt 5 Div 6 of the LP Act, but also pursued by the LPCC for the purposes of Pt 13 of the LP Act without regard to any factual finding of the Tribunal.
While the Tribunal agrees generally with this analysis of the LPCC's powers, it is a long bow to draw to infer that Parliament by s 60 of the LP Act contemplated different findings of fact by the Tribunal in relation to the same conduct or that findings of fact by the Tribunal on review, would not be relevant to the findings that would be open to the Tribunal when considering a complaint based on the same subject matter as that before the Tribunal on review.
Equally, the fact that, as a matter of form, the LPCC can institute proceedings about a matter to which the amendment, suspension or cancellation of a practising certificate relates, does not mean that it should do so without regard to the nature of the facts the subject of the Board's conduct or that LPCC proceedings cannot constitute an abuse of process. To adopt that approach would be to prefer form over substance. Section 60 of the LP Act does not give the LPCC carte blanche to proceed with proceedings after hearings by the Board or a review by the Tribunal. That must be particularly so where the Tribunal has made a positive finding that a practitioner is a fit and proper person to hold a practising certificate (see Rayney at [498]).
If there is a finding that is averse to the practitioner by the Board, s 60 of the LP Act permits the LPCC to seek a greater range of penalties including an order that the practitioner's name be stuck off the roll. This is accepted. However, it is another proposition entirely to suggest that the LPCC may act without regard to the Tribunal's findings. That latter proposition is rejected.
As noted above, consideration of whether or not there has been an abuse of process requires a consideration not of whether a party could commence proceedings, or take a step in proceedings, but whether it should.
Accordingly, the fact that the LPCC has power to take a particular step (for example, to initiate proceedings), does not exclude an inquiry as to whether it should take that step.
The question is whether the actions of the LPCC, although not inconsistent with the literal application of the LP Act, would nevertheless be regarded as unjustifiably oppressive or bring the administration of justice into disrepute with right thinking people.
As Mr Rayney submitted, in the present case, what the LPCC seeks to pursue replicates that which was pursued by the Board. It merely approaches establishing the same factual and legal determinations (that Mr Rayney is not a fit and proper person to continue to practise) from a different legislative path (s 403(2) of the LP Act).

The LPCC's affidavit in opposition

In the LPCC's affidavit in opposition to the s 47 proceedings, rather than seeking to offer any explanation for its conduct, the LPCC has simply exhibited a series of documents to Mr Pope's affidavit. The LPCC seems to assert that this constitutes a sufficient explanation. It is not. The LPCC is a public disciplinary body. It is not a private individual or corporation. As such, it owes an explanation to this Tribunal for the use of the Tribunal's processes when its conduct is challenged.

Background

Before turning to an analysis of Mr Rayney's s 47(2) application, it is useful to set out the background to this matter, in particular, to put matters in a more detailed chronological context.
The background is taken from the Tribunal's reasons in Rayney and from the LPCC's submissions in the s 47(2) application.
Prior to Mrs Rayney's death, probably commencing in April 2007, Mr Rayney used a handheld dictaphone to record conversations between he and his wife. In July 2007, Mr Rayney caused a recording device comprising a Sony Notebook recorder and a CRU2 to be installed at the Rayney home.
Mrs Rayney was last seen alive on 7 August 2007. She died during the late evening of 7 August or the early morning of 8 August 2007. Mrs Rayney's grave was discovered in Kings Park on 15 August 2007.
On 21 August 2007, a search warrant was issued under s 42 of the Criminal Investigation Act 2006 (WA) to search the Rayney home. The warrant was executed on 22 August 2007.
Mr Rayney used a second handheld dictaphone to record telephone conversations between him and the Police in late August/September 2007.
The recordings from the handheld dictaphones were transferred to Compact Discs (CDs). The handheld dictaphones were then disposed of by Mr Rayney. On 19 September 2007, a second search warrant was issued to search the Rayney home and Mr Rayney's office at Francis Burt Chambers. These warrants were executed on 20 September 2007.
Mr Rayney subsequently claimed legal professional privilege over all of the records seized from Francis Burt Chambers. Those records included the CDs of the recordings:
a)between Mr and Mrs Rayney using the handheld dictaphone; and
b)between Mr Rayney and members of the Western Australia Police (Police) using the second handheld dictaphone.
Mr Rayney was named by the Police as the only suspect in Mrs Rayney's murder at a media conference on 20 September 2007 and was arrested for Mrs Rayney's murder on the same day.
Mr Rayney was charged with an offence under the Surveillance Devices Act 1998 (WA) (Surveillance Devices Act) on 20 September 2007.
On 15 September 2008, Mr Rayney was charged with two offences under s 7(1)(a) of the Telecommunications (Interception and Access) Act 1979 (Cth) (the Telecommunications Charges). The 20 September 2007 charge under the Surveillance Devices Act was withdrawn.
The trial of the Telecommunication Charges was originally scheduled for 3 March 2009 but was adjourned until the completion of Mr Rayney's trial for wilful murder and any appeal.
Mr Rayney's claim for legal professional privilege was determined on 17 December 2009 in the Magistrates Court before Magistrate Flynn. An appeal from Magistrate Flynn's decision was determined by the Court of Appeal on 6 August 2010 (AW v Rayney [2010] WASCA 161 (AW v Rayney)). In the course of its judgment, the Court of Appeal made comments that were adverse to Mr Rayney see the details contained in the s 56(2) Notice set out below.
On 10 December 2010, Mr Rayney was charged with wilful murder.
On 29 June 2012, nearly five years after Mrs Rayney's murder and almost two years after the Court of Appeal's decision in AW v Rayney, the LPCC opened an investigation file in respect of Mr Rayney. The investigation, at that stage, concerned findings contained in the reasons of the Court of Appeal in AW v Rayney (Pope affidavit dated 11 July 2016, paragraphs 6 and 7). The investigation was deferred pending delivery of judgment on the wilful murder charge (Pope affidavit dated 11 July 2016, paragraph 10).
Judgment on the wilful murder charge was delivered by Martin AJ on 1 November 2012 (The State of Western Australia v Rayney [No 3] [2012] WASC 404). In his reasons for judgment, Martin AJ made comments that were adverse to Mr Rayney see the details contained in the s 56(2) Notice set out below.
On 16 November 2012, the Board issued a first notice pursuant to s 56(2) of the LP Act and invited Mr Rayney to provide written representations as to why his practising certificate should not be cancelled (Pope affidavit dated 11 July 2016, NDP 1, Document 1). This notice was not the subject of the proceedings in VR 132. It contains the following relevant allegations:
The following facts and circumstances, from the reasons by Brian Martin AJ in The State of Western Australia v Rayney (No 3) [2012] WASC 404 delivered on 1 November 2012, or any of them, form the basis of the Board's belief that you are no longer a fit and proper person to holder a local practising certificate:
a.That you knowingly made a false claim for legal professional privilege (see [2012] WASC 404, at [643]).
b.That you knowingly swore a false affidavit for use in proceedings in the Magistrates' Court (see [2012] WASC 404, at [643]).
c.That you knowingly gave false evidence before a Magistrate (see [2012] WASC 404, at [643] - [654]).
A subsequent notice issued by the Board under s 56(2) of the LP Act notice was the subject of the Board Proceedings - VR 132 of 2015.
On 23 November 2012, Mr Rayney offered a voluntary undertaking not to practise until such time as a detailed submission could be made in respect of the Board's s 56(2) Notice (Pope affidavit dated 11 July 2016, NDP 1, Document 2). On 27 November 2012, the Board accepted Mr Rayney's undertaking. Mr Rayney did not practise again until after this Tribunal overturned the Board's decision to cancel his practising certificate on 10 February 2016; that is, a period of at least three years. The effective period of suspension was probably in the order of four years having regard to Mr Rayney's need to defend the wilful murder charge (See Pope affidavit pages 67-68).
On 27 November 2012, the Board also extended the time within which Mr Rayney was required to provide written representations to 11 December 2012 (Pope affidavit dated 11 July 2016, NDP 1, Document 3).
On 10 December 2012, Mr Rayney asked that the Board not proceed with its consideration of whether or not to cancel his practising certificate on the basis that he would give an undertaking not to practise law without giving a minimum of 21 days' notice to the Board. The request was on the basis that:
1)Mr Rayney was to defend an appeal against the verdict of acquittal entered by Martin AJ; and
2)that the Telecommunications Charges had not yet been heard.
(Pope affidavit dated 11 July 2016, NDP 1, Document 4).
On 23 September 2013, the Court of Appeal dismissed the State's appeal against Mr Rayney's acquittal (The State of Western Australia v Rayney [2013] WASCA 219).
On 16 December 2013 the LPCC sent the s 421 Notice to Mr Rayney. It stated:
…
I advise that the Committee is investigating your conduct on its own initiative pursuant to section 421 of the Legal Profession Act 2008. The conduct being investigated is possible unsatisfactory professional conduct or professional misconduct by:
a)Engaging in the illegal activity commonly known as telephone tapping;
b)Destroying and/or concealing evidence - telephone tapping equipment and recordings of telephone discussions obtained through telephone tapping;
c)Misleading or attempting to mislead the police regarding the installation of telephone tapping equipment (by discussions with Mr Pearson - supplier and installer of equipment);
d)Misleading the police/frustrating the execution of a search warrant at your Como residence on 20 September 2007;
e)Destruction of evidence - hard drive of laptop computer in October 2007;
f)Making false claims for legal professional privilege in respect of covert recordings of conversations (using a dictaphone) with Coryn Rayney and others (privilege claims);
g)Swearing a false affidavit in connection with the privilege claims;
h)False testimony before Magistrate Flynn in November 2009 in connection with the privilege claims;.
i)Illegal conduct by contravening the Surveillance Devices Act (WA) relating to covert recordings (by the use of a dictaphone) of conversations with Corryn Rayney and others;
j)Destruction of evidence - destruction of dictaphones containing covert recordings of conversations with Corryn Rayney and others;
k)Abuse of legal professional privilege - making copies of the original, unprivileged covert recordings (on a dictaphone) with the intention of claiming privilege in respect of the copies and also with the intention of destroying the original recordings so that the original, unprivileged, recordings would not be available for any purpose (including the investigation relating to the killing of Corryn Rayney).
I understand that there are pending charges against you under section 11.2(1) of the Criminal Code (Cth) and section 7 of the Telecommunications (Interception and Access) Act 1979 (Cth).
Would you please advise as to the current position in respect of the pending charges and provide a copy of the indictment and prosecution brief.
You have a right to make submissions to the Committee in respect of the conduct being investigated; however, at this stage you are not required to do so. We will write to you further regarding the investigation when we receive your response in respect of the pending charges.
…
At this point it is useful to refer to the LPCC's submissions in these proceedings at paragraph 129. The LPCC submitted:
In evaluating whether the LPCC Proceedings are punitive there should be due recognition given to the circumstances that:
(1)Two judicial officers have made findings, in proceedings in which Mr Rayney was a party, to the effect that: (a) the dictaphone recordings were made without Mrs Rayney's consent; and (b) the evidence given by Mr Rayney in the Magistrates Court proceedings was false; (Ex parte AW (unreported; 17 December 2009; Flynn SM) [35], [40] & [40(e) & (f)]; State of Western Australia v Rayney (No 3) [2012] WASC 404 [643], [651] & [654] (see also at [32], [1583] and [1584]))
(2)It cannot be doubted that the giving of false evidence by a legal practitioner constitutes professional misconduct even where it occurs outside professional practice. (see, for example, the cases collected in Legal Practitioners Complaints Committee v Palumbo [2005] WASCA 129 [22][24]. See also Legal Practitioners Complaints Committee v Dixon [2006] WASCA 27 [10] and Fidock v Legal Profession Complaints Committee [2013] WASCA 108 [98] and [100])
At paragraph 167 of the LPCC's submissions it stated:
It is fanciful to suggest that the Board considered that the conduct in subparagraphs (a) to (h) of the s 56(2) Notice and in particular the conduct consisting of the giving of false evidence would not warrant a conclusion that Mr Rayney was no longer a fit and proper person to hold a practising certificate. Such a conclusion would be inconsistent with numerous decisions of Australian courts exercising supervisory jurisdiction over legal practitioners. See e.g.:
'It is not necessary in this judgment to detail the reasons which underlie the requirement that to be fit to be a member of the legal profession a person, be he a barrister or solicitor, should be honest and frank in his relations with the court and otherwise in his professional conduct and in evidence given by him before the court, so that the court and other members of the profession can deal with him with confidence relying on his integrity (New South Wales Bar Association v Livesey (1982) 2 NSWLR 231, 233).
Honesty and candour are essential attributes for a legal practitioner, and certainly so when dealing with the Court and his or her professional body. The deliberate making of untrue statements on oath in particular reveals a person lacking in qualities essential for a practitioner (Howes v Law Society of Tasmania (Unreported Full Court Supreme Court of Tasmania; Del. 18/09/98; BC9804770) (referred to with approval in Legal Practitioners Complaints Committee v Palumbo [2005] WASCA 129 [22]).
If (which I doubt) there are exceptional cases where a practitioner who knowingly swears a false affidavit that is filed in court could be regarded as fit to practice, this is not one of them … (Coe v NSW Bar Association [2000] NSWCA 13 [10])'.
Equally, it could not seriously be doubted that at this point, 16 December 2013, the LPCC had formed the view that it was ultimately going to file a complaint with the Tribunal. To suggest otherwise is fanciful.
On 20 February 2014, Mr Rayney declined to provide the LPCC with the indictment and prosecution brief in relation to the Telecommunications Charges. Mr Rayney also stated that the LPCC investigation should not proceed until a verdict had been delivered in respect of the Telecommunications Charges (Pope affidavit dated 11 July 2016, NDP 1, Document 6).
In accordance with Mr Rayney's request, the LPCC did not insist on Mr Rayney providing documentation relating to the Telecommunications Charges and did not require him to respond to the conduct matters notified in its letter of 16 December 2013 pending the trial of the Telecommunications Charges.
On 7 May 2015, Mr Rayney was found not guilty of the Telecommunications Charges.

Delay

Both parties agreed that to this point no fault could be attributed to either party for the delay in proceeding with the s 421 Notice and the s 56(2) Notice until Mr Rayney's criminal proceedings had concluded.
The Tribunal agrees that no fault could be attributed to either party up to this point. However, after this point, the question of what could have been done and should be been done is a very live issue.

Mr Rayney's application to resume practice

On 8 May 2015, Mr Rayney wrote to the Board enquiring what steps were required in order for him to resume his practice as a barrister (Pope affidavit dated 11 July 2016, NDP 1, Document 7).
On 18 May 2015, the Board informed Mr Rayney that he would need to give the notice required by his undertaking in order to resume practice as a barrister and that, once that notice was received, the Board would consider what action it would take. The Board also stated to Mr Rayney that the LPCC investigation was separate (Pope affidavit dated 11 July 2016, NDP 1, Document 8).
Mr Rayney gave notice of his intention to resume practice on 18 May 2015.
On 20 May 2015, the LPCC wrote to Mr Rayney referring to the determination of the charges against Mr Rayney and advising that it now required Mr Rayney's submissions in respect of the matters raised in its letter dated 16 December 2013 (other than the conduct matters relating to the Telecommunications Charges). The submissions were requested to be provided by 11 June 2015. The LPCC also requested the trial transcript and copies of the indictment, prosecution brief, witness statements and exhibits for the Telecommunications Charges (Pope affidavit dated 11 July 2016, NDP 1, Document 10).
On 28 May 2015, Mr Rayney requested an extension of time to provide submissions in response to the LPCC's letter dated 16 December 2013. Mr Rayney also raised concerns about the provision of some documents relating to the Telecommunications Charges trial, but provided others (Pope affidavit dated 11 July 2016, NDP 1, Document 11).
On 2 June 2015, the LPCC renewed its request for information about the Telecommunications Charges trial on the basis that the information was required for its investigation under Pt 13 of the LP Act (Pope affidavit dated 11 July 2016, NDP 1, Document 12).

The Notice issued by the Board under s 56 of the LP Act

On 2 June 2015, the Board issued to Mr Rayney a notice pursuant to the s 56(2) Notice informing him that it proposed to cancel his practising certificate and inviting Mr Rayney to make written representations. The relevant contents of that Notice were:
Grounds for proposing to take the proposed action
2.A ground for amending, suspending or cancelling a local practising certificate is that the holder is no longer a fit and proper person to hold a local practising certificate (see LPA s 55(a)).
3.On 2 June 2015 the Board, by its delegate the Professional Affairs Committee of the Board, formed the belief that that [sic] you are no longer a fit and proper person to hold the certificate (see LPA s 56(2)).
Outline of the facts and circumstances that form the basis for the Board's belief
4.In considering whether a holder of a local practising certificate is no longer a fit and proper person to hold a local practising certificate, the Board may take into account any matters relating to the holder the Board considers are appropriate (see LPA s 38(2)(f)).
5.The following facts and circumstances, which are set out in the reasons for decision of the Court of Appeal in AW v Rayney [2010] WASCA 161 delivered on 6 August 2010 and of Brian Martin AJ in The State of Western Australia v Rayney (No 3) [2012] WASC 404 delivered on 1 November 2012, form the basis of the Board's belief that you are no longer a fit and proper person to hold a local practising certificate[.]
Secret Recordings and Breach of Surveillance Devices Act 1998
(a)You secretly recorded conversations you had with Mrs Corryn Rayney using a handheld Dictaphone ([2010] WASCA 161, at [82], [281]; [2012] WASC 404, at [636]).
(b)The conversations referred to in paragraph (a) were recorded without Mrs Rayney's knowledge of consent ([2010] WASCA 161, at [82], [281]; [2012] WASC 404, at [641]-[643]).
(c)Your conduct in recording the conversations referred to in paragraph (a) was not reasonably necessary to protect your lawful interests ([2010] WASCA 161, at [317] - [319] and [351]).
(d)Your conduct in recording the conversations referred to in paragraph (a) was in breach of s 5 of the Surveillance Devices Act 1998 ([2010] WASCA 161, at [82], [281], [366]).
False Evidence and False Claim of Legal Professional Privilege
(e)You stated in an affidavit filed on 2 February 2009 in support of a claim for legal professional privilege that the recordings referred to in paragraph (a) were made with Mrs Rayney's knowledge and consent ([2012] WASC 404, at [638]-[640]).
(f)You gave evidence on 19 November 2009 in support of the claim for legal professional privilege that the recordings referred to in paragraph (a) were made with Mrs Rayney's knowledge and consent ([2010] WASCA 161, at [322]; [2012] WASC 404, at [645], [649]).
(g)Your evidence in the affidavit filed on 2 February 2009 and on 19 November 2009 that the recordings were made with Mrs Rayney's knowledge and consent was knowingly false ([2010] WASCA 161, at [281J; [2012] WASC 404, at [643]-[654]).
(h)You knowingly made a false claim for legal professional privilege in relation to the recordings referred to in paragraph (a) ([2012] WASC 404, at [643]-[651]).
Disposing of Dictaphones
(i)You deliberately disposed of the Dictaphone used to record the conversations referred to in paragraph (a) and a Dictaphone used to record conversations with other third parties and thereby destroyed the original recordings ([2010] WASCA 161, at [217], [351]).
(j)You did so after the execution of search warrants on 22 August 2007 and 20 September 2007 ([2010] WASCA 161, at [351]).
(k)You knew that the non-electronic and electronic records sought by the police under the search warrants included Dictaphones ([2010] WASCA 161, at [217]).
(l)You made copies of the recordings and disposed of the Dictaphones to ensure that the Dictaphones and the original recordings were placed out of the reach of the authorities ([2010] WASCA 161, at [41]-[44]; [353]).
Arranging for Recordings of Telephone Conversations
(m)In or about July 2007, you arranged for a third person to intercept and record telephone conversations at your home address ([2012] WASC 404, at [180]-[185]).
(n)In doing so you wanted to record and listen to Mrs Rayney's conversations ([2012] WASC 404, at [214]).
(o)You were aware that the third party had taken steps to record both ends of telephone conversations including enabling him to enter the roof space of the house, where he installed a recorder and digital notetaker ([2012] WASC 404, at [185], [191]).
(p)You would have been well aware that the activity of intercepting and recording telephone conversations was an illegal activity ([2012] WASC 404, at [185], [214]).
(q)The third person obtained copies of recordings made from the roof space of the house and provided CD copies of the recordings to you ([2012] WASC 404, at [197]).
Removing Equipment and Disposing of Recordings
(r)You removed the recorder and digital notetaker referred to in paragraph (o) from the roof space ([2012] WASC 404, at [207]).
(s)You destroyed or placed the CDs referred to in paragraph (q) beyond the reach of the police ([2012] WASC 404, at [207]).
Encouraging Third Party to Mislead the Police
(t)Following the removal of the recorder and digital notetaker referred to in paragraph (o), you told the third person who had installed the recorder and digital notetaker to tell the police that he had been working on your computer ([2012] WASC 404, at [212]).
(u)In doing so you displayed a willingness to mislead the police and to encourage a third party to do so ([2012] WASC 404, at [213[214]).
INVITATION TO MAKE WRITTEN REPRESENTATIONS
6.You may be considered a fit and proper person to hold a local practising certificate, despite the above matters, if the Board considers that the circumstances warrant that determination (see LPA s 38(3)).
7.Further, instead of cancellation, the Board may suspend the certificate or amend it to impose conditions (see LPA s 56(1) and s 56(3)(c)).
8.You may make written representations to the Board as to why your local practising certificate should not be cancelled (see LPA0s 56(2)(d)).
9.The Board invites you to make written representations to the Board by 4.00pm on Wednesday, 24 June 2015 as to why your local practising certificate should not be cancelled.

The factual relationship between the s 421 Notice and the s 56(2) Notice

The close factual relationship between the s 421 Notice and the s 56(2) Notice is tabulated below:

Section 421 Notice	Section 56(2) Notice
Secretly recording conversations with Mrs Rayney using a handheld Dictaphone	(i)	5(a)(d)
False evidence and claim of Legal Professional Privilege	(f), (g), (h), (k)	5(e) and (h)
Disposing of Dictaphones	(d), (j)	5(i)(l)
Arranging for recordings of telephone conversations	(a)	5(m)(q)
Removing equipment and disposing of recordings	(b), (e)	5(r)(s)
Encouraging third party to mislead the police	(c)	5(l)(u)

The factual matters in the s 421 Notice and the s 56(2) Notice are the same. Those facts arise out of the very same pattern of conduct alleged against Mr Rayney in each notice.
There is no reasonable explanation offered by the LPCC as to why the resolution of the LPCC's s 421 Notice and the Board's s 56(2) Notice could not have proceeded in tandem from this point on with the matters being heard together. Indeed, the Tribunal is unable to discern any such explanation in the evidence before it.

After the service of the s 56(2) Notice

On 8 June 2015, Mr Rayney asked for an extension of time to comply with the LPCC's requests for documents on the basis that he needed his copies of the requested documents in order to prepare a response to the Board's s 56(2) Notice (Pope affidavit dated 11 July 2016, NDP 1, Document 14).
On 9 June 2015, the LPCC enquired as to whether Mr Rayney required additional time to provide submissions in respect of certain matters raised in the LPCC's letter of 16 December 2013 (Pope affidavit dated 11 July 2016, NDP 1, Document 15).
On 11 June 2015, Mr Rayney agreed to provide the further documents requested by the LPCC and requested a further extension of time to prepare written submissions (Pope affidavit dated 11 July 2016, NDP 1, Document 16).
On 11 June 2015, the LPCC extended the time within which Mr Rayney was required to provide his written submissions to 8 July 2015 (Pope affidavit dated 11 July 2016, NDP 1, Document 17).
Mr Rayney provided the requested Telecommunications Charges trial documents to the LPCC on 12 June 2015 (Pope affidavit dated 11 July 2016, NDP 1, Document 18).

Mr Rayney's response to the Board's s 56(2) Notice

On 24 June 2015, Mr Rayney's counsel provided a response to the Board's s 56(2) Notice and a voluminous amount of supporting material three lever arch files. That material covered the matters referred to in the s 56(2) Notice and because of the close factual relationship between the s 421 Notice and the s 56(2) Notice it must have inevitably covered the matters the subject of the s 421 Notice.

After the service of Mr Rayney's submissions to the Board's 56(2) Notice

On 24 June 2015, the LPCC requested further submissions from Mr Rayney in respect of whether he engaged in possible unsatisfactory professional conduct or professional misconduct, by, among other things, procuring the installation of a telecommunications interception and recording device (Pope affidavit dated 11 July 2016, NDP 1, Document 19).
On 24 June 2015 and 26 June 2015, Mr Rayney raised concerns about summonses to produce documents that had been issued by the LPCC to legal firms that had previously acted for Mr Rayney (Pope affidavit dated 11 July 2016, NDP 1, Document 21, 21).
On 26 June 2015, the Board notified Mr Rayney that it had deferred its consideration of the matter contained in the s 56(2) Notice to 16 July 2015, asked whether Mr Rayney proposed to apply for renewal of his practising certificate that was due to expire on 30 June 2015 (because if he did not, there would be no certificate in respect of which the Board could make a decision) and invited Mr Rayney to provide further submissions in respect of certain matters (Pope affidavit dated 11 July 2016, NDP 1, Document 22).
On 30 June 2015, Mr Rayney provided to the LPCC a number of documents that had been provided to the Board in response to the Board's s 56(2) Notice (Pope affidavit dated 11 July 2016, NDP 1, Document 24, 25).
On 6 July 2015, the LPCC issued a summons to Mr Rayney to produce the supplementary appeal book in Court of Appeal proceedings CACR22/2010 and CACR23/2010 by 8 July 2015. Mr Rayney had previously refused to provide that material. The LPCC also requested further documents and information (Pope affidavit dated 11 July 2016, NDP 1, Document 27).
On 7 July 2015, Mr Rayney provided further documents to the LPCC (Pope affidavit dated 11 July 2016, NDP 1, Document 28).
On 8 July 2015, Mr Rayney requested a further extension of time to provide submissions to the LPCC in relation to its investigation (Pope affidavit dated 11 July 2016, NDP 1, Document 29).

Mr Rayney's submissions in response to the s 421 Notice

On 9 July 2015, Mr Rayney provided his submissions in respect of the matters raised in the s 421 Notice, being the LPCC's letter of 16 December 2013 (Pope affidavit dated 11 July 2016, NDP 1, Document 30). Mr Rayney's submissions specifically referred to the fact that the LPCC was in receipt of Mr Rayney's submissions to the Board dated 23 June 2015 - together with supporting materials and Mr Rayney's supplementary submissions to the Board dated 7 July 2015. Mr Rayney's submissions and supplementary submissions to the Board should have provided the information sought by the LPCC.
The long delay between the events leading to the complaint and the s 421 Notice made it urgent that the allegations which had the potential to end Mr Rayney's professional career be considered and resolved promptly.
It is also important to bear in mind the LPCC's duty under s 431 of the LP Act to 'deal with complaints as efficiently and expeditiously as is practicable'.
On 14 July 2015, the LPCC requested documents from Mr Rayney that were referred to in his submissions, but not provided to the LPCC (Pope affidavit dated 11 July 2016, NDP 1, Document 31).
Mr Rayney provided most of the requested documents to the LPCC on 16 July 2015 (Pope affidavit dated 11 July 2016, NDP 1, Document 33).

The Board cancels Mr Rayney's practising certificate

On 17 July 2015, the Board issued a notice to Mr Rayney under s 56(4) of the LP Act cancelling his practising certificate (the Cancellation Notice).
The Cancellation Notice essentially relied on Mr Rayney's alleged conduct as set out under the heading 'Disposing of Dictaphones' and 'Arranging for Recordings of Telephone Conversations' as set out in the Notice of Intention.
The Cancellation Notice stated:
REASON FOR THE DECISION
2.The following facts and circumstances form the basis of the Board's belief that you are no longer a fit and proper person to holder a local practising certificate:
Disposing of Dictaphones
(a)You deliberately disposed of the Dictaphone used to record conversations you had with Mrs Corryn Rayney and a Dictaphone used to record conversations with other third parties and thereby destroyed the original recordings.
(b)You did so after the execution of search warrants on 22 August 2007 and 20 September 2007.
(c)You knew that the non-electronic and electronic records sought by the police under the search warrants included Dictaphones.
(d)You made copies of the recordings and disposed of the Dictaphones to ensure that the Dictaphones and the original recordings were placed out of the reach of the authorities.
Arranging for Recordings of Telephone Conversations
(e)In or about July 2007, you arranged for a third person to intercept and record telephone conversations at your home address.
(f)In doing so you wanted to record and listen to Mrs Rayney's conversations.
(g)You were aware that the third party had taken steps to record both ends of telephone conversations including enabling him to enter the roof space of the house, where he installed a recorder and digital notetaker.
(h)You would have been well aware that the activity of intercepting and recording telephone conversations was an illegal activity.
(i)The third person obtained copies of recordings made from the roof space of the house and provided CD copies of the recordings to you.
…
10.At a meeting held on 16 July 2015, the Committee considered the matters set out at paragraphs 1 to 9 above and resolved to cancel your local practising certificate on and from 21 July 2015.

Can any inference be drawn from the Boards failure to pursue the express allegations of secret recordings, false evidence and a false claim of legal privilege?

It was obvious at this point that the Board was not going to pursue all of the allegations in the s 56(2) Notice and, in particular, the part of the s 56(2) Notice that stated:
5.The following facts and circumstances, which are set out in the reasons for decision of the Court of Appeal in AW v Rayney [2010] WASCA 161 delivered on 6 August 2010 and of Brian Martin AJ in The State of Western Australia v Rayney (No 3) [2012] WASC 404 delivered on 1 November 2012, form the basis of the Board's belief that you are no longer a fit and proper person to hold a local practising certificate[.]
Secret Recordings and Breach of Surveillance Devices Act 1998
(a)You secretly recorded conversations you had with Mrs Corryn Rayney using a handheld Dictaphone ([2010] WASCA 161, at [82], [281]; [2012] WASC 404, at [636]).
(b)The conversations referred to in paragraph (a) were recorded without Mrs Rayney's knowledge of consent ([2010] WASCA 161, at [82], [281]; [2012] WASC 404, at [641]-[643]).
(c)Your conduct in recording the conversations referred to in paragraph (a) was not reasonably necessary to protect your lawful interests ([2010] WASCA 161, at [317] - [319] and [351]).
(d)Your conduct in recording the conversations referred to in paragraph (a) was in breach of s 5 of the Surveillance Devices Act 1998 ([2010] WASCA 161, at [82], [281], [366]).
False Evidence and False Claim of Legal Professional Privilege
(e)You stated in an affidavit filed on 2 February 2009 in support of a claim for legal professional privilege that the recordings referred to in paragraph (a) were made with Mrs Rayney's knowledge and consent ([2012] WASC 404, at [638]-[640]).
(f)You gave evidence on 19 November 2009 in support of the claim for legal professional privilege that the recordings referred to in paragraph (a) were made with Mrs Rayney's knowledge and consent ([2010] WASCA 161, at [322]; [2012] WASC 404, at [645], [649]).
(g)Your evidence in the affidavit filed on 2 February 2009 and on 19 November 2009 that the recordings were made with Mrs Rayney's knowledge and consent was knowingly false ([2010] WASCA 161, at [281J; [2012] WASC 404, at [643]-[654]).
(h)You knowingly made a false claim for legal professional privilege in relation to the recordings referred to in paragraph (a) ([2012] WASC 404, at [643]-[651]).
(the Balance Allegations)
At paragraph 8 of his written submissions, Mr Rayney invited the Tribunal to infer that the reason the Board did not pursue the Balance Allegations was because it 'did not consider these matters were sufficient to warrant … a conclusion that Mr Rayney was no longer a fit and proper person to hold a local practising certificate'.
The LPCC submits that the matters that were relied on by the Board in its Cancellation Notice were, if established, a sufficient basis for the cancellation of Mr Rayney's practising certificate and that the more likely inference is that the Board considered those matters to be sufficient grounds for the cancellation of Mr Rayney's practising certificate, and saw no need to address the other matters.
Neither of the suggested inferences are inferences that the Tribunal is prepared to draw. The Tribunal is simply unable to form a view as to why the Board decided not to pursue the Balance Allegations. The Board must have known of the matters the subject of the s 421 Notice issued by the LPCC, by reason of the exchange of information between the Board and the LPCC. The LPCC did not seek to provide an explanation nor invite the Board to provide an explanation as to why the Board did not pursue the Balance Allegations. No explanation was offered in the Board Proceedings.
The Board is a public body charged under the LP Act with considering whether a practitioner should hold a practising certificate. It remains an unexplained and inexplicable decision by the Board not to pursue the Balance Allegations given that a failure to pursue them had the potential to leave a resolution of those matters outstanding.

Mr Rayney files his application for a review of the Board's cancellation of his practising certificate

On 20 July 2015, Mr Rayney applied, pursuant to s 78(a)(ii) of the LP Act, for a review of the Board's decision to cancel his practising certificate (the Board Proceedings).

After 20 July 2015

On 28 July 2015, the LPCC asked Mr Rayney for copies of his applications to the Tribunal for review of the Board's decision and for a stay of that decision (Pope affidavit dated 11 July 2016, NDP 1, Document 36). Copies of the applications were provided to the LPCC on 30 July 2015 (Pope affidavit dated 11 July 2016, NDP 1, Document 37, 38).
Mr Rayney sought interim orders that, among other things, the Tribunal proceedings be heard in private with only the parties and the legal representatives entitled to be present and that there be only limited publication.
On 30 July 2015, the LPCC wrote to Mr Rayney asking that the interim orders sought be varied so that the LPCC and its legal representatives would be permitted to attend the hearing of Mr Rayney's application, be notified of hearings listed, and be provided with documents filed in the proceedings (Pope affidavit dated 11 July 2016, NDP 1, Document 39).
On 31 July 2015, Mr Rayney wrote to the LPCC asking why certain documents, the subject of summonses issued by the LPCC, were relevant to its investigation (Pope affidavit dated 11 July 2016, NDP 1, Document 40).
On 31 July 2015, in relation to the LPCC's request to attend the hearing of Mr Rayney's application before the Tribunal, Mr Rayney expressed the view that the LPCC should not, if it intervened, be entitled to separate representation. Mr Rayney said that he did not oppose the variations to the orders proposed by the LPCC (Pope affidavit dated 11 July 2016, NDP 1, Document 41).
On 10 August 2015, the LPCC wrote to Mr Rayney about his application for review.
CONDUCT INVESTIGATION - MR LLOYD RAYNEY
I refer to your letter dated 5 August 2015 and State Administrative Tribunal (SAT) review proceedings VR132 of 2015 generally (review proceedings).
As you are aware, the LPCC is still investigating the conduct notified to Mr Rayney by letter dated 16 December 2013. You are also aware that, in accordance with Mr Rayney's requests (due to various pending charges now determined), he has only recently been required to provide submissions for the Committee's consideration, which submissions were received on 9 July 2015.
The conduct the subject of the review proceedings overlaps in part with the LPCC's conduct investigation involving Mr Rayney.
The Committee is yet to determine any aspect of the conduct investigation as ultimately it is required to do pursuant to section 424 of the Legal Profession Act 2008 (Act). However, if the Committee did ultimately decide to refer conduct of Mr Rayney to SAT pursuant to sections 424(1)(c) and 428 of the Act, it is possible that, in addition to conduct already overlapping with the review proceedings, the matters referred to SAT would involve a broader range of conduct. (As noted, the Committee's investigation concerns matters that are wider than the grounds that are the subject of the current review proceedings.)
The Committee is concerned that the present circumstances may result in a multiplicity of hearings. Obviously, in terms of the public interest and the interests of the parties, it would be highly desirable to avoid a multiplicity of hearings.
In the ordinary course it is likely that the Committee would not be in a position to make a determination on whether to refer any matter to the Tribunal for some time. However, in order for the position to be clarified as soon as possible, the LPCC is prepared to increase and prioritise resources to expedite the conduct investigation. To that end, the LPCC is proposing to work to the anticipated time table set out below.

Date	Activity
25 August 2015	Issue of Summons to Mr Rayney to Provide Written Intonation and Produce Documents pursuant to section 520(1 )(a) and (c) of the Legal Profession Act 2008 (Act)
8 September 2015	Receive Mr Rayney's response to Summons
By 18 September 2015	[Subject to full response] Committee decision on the conduct investigation in accordance with section 424(1) of the Act
By 25 September 2015	If the Committee has resolved to refer any aspect of Mr Rayney's conduct to the State Administrative Tribunal, the filing of the Application in the Tribunal

If consideration were to be given to hearing any possible LPCC referral of conduct to SAT at the same time as the review proceedings, this would mean that a hearing in September/October would not be feasible. Indeed, if that were to be considered, until such time as it is known what (if any) conduct is referred to the Tribunal (this still being the subject of investigation and a matter for determination by the Committee) and the pleaded response to an application, it appears to the LPCC that even the likely hearing time itself cannot be properly ascertained.
You will see that with the LPCC prioritising the finalisation of the investigation, any delay would appear to be at a minimum compared to the inconvenience and prejudice that could otherwise follow.
The LPCC intends to draw the above matters to the attention of the Tribunal at the Directions Hearing on. Wednesday, 12 August 2015.
In the meantime we invite you to inform us of Mr Rayney's attitude to deferring the listing of the review proceedings for hearing pending the outcome of the LPCC's investigation.

The LPCC's letter of 10 August 2015 stated the obvious, namely, that there was a significant factual overlap between the review of the Board's s 56(2) Notice and the LPCC's s 421 Notice.
The table above at [135] illustrates the similarity between the s 56(2) Notice and the s 421 Notice.
No explanation was offered by the LPCC as to why it took a month to reply to Mr Rayney's submission.
It is extraordinarily difficult to understand the timetable prepared in the LPCC's letter of 10 August 2016 and why all of those matters had not been attended to or investigated by the time the Board issued its s 56(2) Notice.
The LPCC has offered no explanation why the LPCC had not conducted its investigation on, or within a week of, 2 June 2015 or even by the end of June 2015. If it had done so, there is no plausible reason why the LPCC could not have had its case against Mr Rayney ready for hearing at the same time as the Board's case.
What is even more difficult to understand is why, in the light of s 428(2) of the LP Act, which permits a complaint to be made to the Tribunal without an investigation, the LPCC even found it necessary to conduct an investigation before referring a complaint about Mr Rayney to the Tribunal.
The LPCC offered no explanation as to why it could not and should not have commenced proceedings.

The effect of the LPCC commencing an investigation

The LPCC submitted that s 60 of the LP Act expressly anticipates the LPCC initiating an investigation, under Pt 13, about a matter that was the subject of a s 56(2) Notice issued by the Board. It further submitted that that alone meant that Mr Rayney is not entitled to regard the matters referred to the Tribunal in the LPCC proceedings as being behind him.
Pursuant to s 424, once an investigation by the LPCC is completed the LPCC must either:
1)decide to take no further action;
2)with the consent of the practitioner, take action under s 426; or
3)refer the matter to the Tribunal.

The LPCC submits that once the LPCC 'initiates' an investigation, the LP Act requires the investigation to conclude with one of those three outcomes. That begs the question as to whether it was necessary for the LPCC in the circumstances of this case to carry out an investigation. It also begs the question as to what possible further information the LPCC required before it determined to refer a complaint to the Tribunal.
The LPCC submitted that the LP Act contemplates, in the case of complaints, that dismissal will only occur when either:
1)there is no reasonable likelihood that the practitioner will be found guilty of professional misconduct or unsatisfactory professional conduct; or
2)it is in the public interest to do so (LP Act s 425).
The LPCC submitted that the same principles inform whether the LPCC should decide to take no further action on an investigation on its own motion. Of course, dismissal was not the only option open to the LPCC. It was always open to the LPCC to refer a complaint to the Tribunal. There was no reason why at any point the LPCC could not, on the information it had before it, was concluded that this was an appropriate matter to refer to the Tribunal. The suggestion that in every case once an investigation is commenced it must grind on inexorably through a particular process is simply not sustainable.

On 11 August 2015, the LPCC required Mr Rayney to provide documents in respect of the investigation (Pope affidavit dated 11 July 2016, NDP 1, Document 43).
On 11 August 2015, Mr Rayney stated that he opposed a deferral of his review application so that it might be heard with any referral by the LPCC to the Tribunal. Mr Rayney stated that the LPCC did not have any right to attend a directions hearing for Mr Rayney's review proceedings, scheduled for 12 August 2015. Mr Rayney sought confirmation that counsel for the LPCC would not attend the directions hearing (Pope affidavit dated 11 July 2016, NDP 1, Document 44).
The Tribunal understands Mr Rayney's reluctance to defer the hearing of the review proceedings. He had been unable to practice for at least three years and probably four years. Whatever income he had must have been severely reduced by his inability to practise. The proceedings must have been ruinously expensive to Mr Rayney, even with legal aid.
The LPCC's failure to be in a position to have its application heard with the Board Proceedings is not excused by Mr Rayney's request for a deferral.
On 11 August 2015, the LPCC informed Mr Rayney that it would seek leave to appear at the directions hearing so that the Tribunal was aware of the status of the LPCC's investigation. The LPCC served a copy of an affidavit of Mr Pope dated 11 August 2015. In that affidavit, Mr Pope deposed to the progress and status of the LPCC's investigation and expressed concern that, if Mr Rayney's review application were to proceed, there may be a multiplicity of proceedings (Pope affidavit dated 11 July 2016, NDP 1, Document 45).
The LPCC sought and was permitted to intervene at a 12 August 2015 directions hearing in Mr Rayney's review proceedings. The intervention was for the limited purpose of informing the Tribunal of the LPCC's investigation and the likely timetable for its completion. A copy of Mr Pope's affidavit of 11 August 2015 was handed up to the Tribunal.
On 25 August 2015, the LPCC served on Mr Rayney a summons to provide written information verified on oath, and a summons to produce documents, in respect of the investigation (Pope affidavit dated 11 July 2016, NDP 1, Document 46).
There is no explanation from the LPCC as to why it was necessary for the summons of 25 August 2015 to be issued in the context of the LPCC Proceedings. All of the requests for written information could have been dealt with in crossexamination.
In the circumstances of the case, the summons was essentially a set of interrogatories of the kind which the Supreme Court has been so rightly critical of in recent years. At the hearing of the Board Proceedings, the Board was able to deal with those matters without written answers on oath before the hearing.
Question 4 of the summons is an example of how unnecessary many of the questions were in the context of the information that the LPCC had before it:
Are you aware that on 20 September 2007 a press conference was held at which a police officer described you as a 'suspect' in the investigations being carried out as to the murder of Mrs Rayney? If so when did you first become aware?
Did the LPCC seriously not know the answer to these questions? Did it miss the wide media coverage of the press conference and the fact of Mr Rayney's arrest on that day as well as the fact that Mr Rayney had issued defamation proceedings on 16 September 2008 against the police based on that statement at that press conference (see Rayney v The State Of Western Australia [2009] WASC 105 at [4])? The Tribunal thinks not.
A decision by the LPCC to make an application to this Tribunal under s 428 of the LP Act did not require an answer to the requests for information contained in the summons of 25 August 2015. The summons to produce documents issued by the LPCC on the same day was equally unnecessary. The steps taken by the LPCC in its investigation were a triumph of form over substance.
On 28 August 2015, Mr Rayney stated that he would require further time to respond to the summonses (Pope affidavit dated 11 July 2016, NDP 1, Document 47). On 7 September 2015, Mr Rayney requested an extension of time to 18 September 2015 (Pope affidavit dated 11 July 2016, NDP 1, Document 48). On 7 September 2015, the LPCC granted that extension (Pope affidavit dated 11 July 2016, NDP 1, Document 49).
On 15 September 2015, Mr Rayney requested a further extension of time to 28 September 2015. This was granted by the LPCC (Pope affidavit dated 11 July 2016, NDP 1, Documents 50, 51). On 21 September 2015, a further extension to 29 September 2015 was sought by Mr Rayney (Pope affidavit dated 11 July 2016, NDP 1, Document 52). The requested extension was granted by the LPCC on 23 September 2015 (Pope affidavit dated 11 July 2016, NDP 1, Document 53).
The LPCC also sought to intervene at a directions hearing in Mr Rayney's review proceedings on 29 September 2015. A further affidavit of Mr Pope, sworn 25 September 2015, was handed up. The LPCC submits that that affidavit explained the steps taken and remaining in the LPCC's investigation. Once again it was simply a recitation of an exchange of correspondence.
At the hearing on 27 September 2015, in response to comments by counsel for Mr Rayney, counsel for the LPCC stated that its investigation was wider than the matters the subject of Mr Rayney's review proceedings. However, counsel for the LPCC provided no details of how the investigation was wider.
It should be noted that although the investigation was wider than the matters the subject of Mr Rayney's review proceedings, it was not wider than the s 56(2) Notice or the s 421 Notice. Mr Rayney had responded to the Board as to the matters the subject of the wider investigation as noted above. It is difficult to understand why the 'wider investigation' had any relevance to a decision whether or not to proceed.
Also, at the 29 September 2015 directions hearing, orders were made listing Mr Rayney's review proceedings for final hearing for four days commencing on 20 October 2015.
On 29 September 2015, Mr Rayney produced documents and written information, verified on oath, to the LPCC (Pope affidavit dated 11 July 2016, NDP 1, Document 54).
On 9 October 2015, the LPCC gave notice to Mr Rayney that seven matters would be referred to the Tribunal pursuant to s 428 of the LP Act (Pope affidavit dated 11 July 2016, NDP 1, Document 55).

The LPCC's Original Application

The LPCC's Original Application was filed on 9 October 2015. The grounds set out in the LPCC's Original Application in VR 173 of 2015 were:
Ground 1
Between about April 2007 and 7 August 2007 the practitioner, LLOYD PATRICK RAYNEY (practitioner), engaged in professional misconduct within the meaning of the Legal Profession Act 2008 (WA) by recording conversations between himself and his then wife, Corryn Rayney (Mrs Rayney), on a hand held recording device, namely, a dictaphone, without the knowledge or consent of Mrs Rayney, in contravention of s 5(1) of the Surveillance Devices Act 1988 (WA), where:
(1)there had been an acrimonious breakdown, and there were substantial and ongoing difficulties, in the matrimonial relationship between the practitioner and Mrs Rayney; further or alternatively
(2)the practitioner knew, or alternatively was recklessly indifferent as to whether, he was acting unlawfully.
Ground 2
Between about mid-July 2007 and 5 August 2007 the practitioner engaged in professional misconduct within the meaning of the Legal Profession Act 2008 (WA) by, without the knowledge or consent of Mrs Rayney, procuring another person (namely TIMOTHY MATTHEW PEARSON) to install telecommunications interception and recording equipment (Equipment) at the home (Home) where the practitioner resided with Mrs Rayney to intercept and record communications in their passage over a telecommunications system, thereby intercepting and recording, without the knowledge or consent of Mrs Rayney, telephone conversations made and received by her at the Home:
(1)where doing so was in contravention of:
(a)s 7(1) of the Telecommunications (Interception and Access) Act 1979 (Cth), further or alternatively, s 11.2 of the Criminal Code (Cth) (as read with s 7(1) (a) of the Telecommunications (Interception and Access) Act 1979 (Cth));
(b)(in the alternative to (l)(a)) s5(I) of the Surveillance Devices Act 1988 (WA), further or alternatively, s 5(1) of the Surveillance Devices Act 1988 (WA) (as read with s 7(c), further or alternatively, s 7(d) of the Criminal Code (WA));
(c)(in the alternative to (l)(a) and further or in the alternative to (l)(b)) s 34 of the Surveillance Devices Act 1988 (WA); and
(2)where:
(a)there had been an acrimonious breakdown, and there were substantial and ongoing difficulties, in the matrimonial relationship between the practitioner and Mrs Rayney; further or alternatively
(b)the practitioner and Mrs Rayney had separated (although still both living in the Home) and the practitioner anticipated that matrimonial proceedings as to property, custody and child support would arise as between the practitioner and Mrs Rayney; further or alternatively
(c)the practitioner knew that Mrs Rayney had retained a lawyer to act for her in relation to that family law dispute; further or alternatively
(d)the practitioner wanted to be aware of Mrs Rayney's plans in terms of the strategy she had with her lawyer in relation to the family law dispute (and would become so aware by listening to recordings of intercepted telephone conversations between Mrs Rayney and others to which the practitioner was not a party); further or alternatively
(e)the practitioner knew, or alternatively was recklessly indifferent as to whether, he was acting unlawfully.
Ground 3
Between about mid-July 2007 and 7 August 2007, in the circumstance specified in Ground 2 above, the practitioner engaged in professional misconduct within the meaning of the Legal Profession Act 2008 (WA) by obtaining and listening to recordings made by the Equipment, without Mrs Rayney's knowledge or consent, of telephone conversations made or received by Mrs Rayney at the Home.
Ground 4
On 20 September 2007, in the circumstances specified in Ground 2 above, the practitioner engaged in professional misconduct within the meaning of the Legal Profession Act 2008 (WA) by encouraging Mr Pearson to make a false statement to police officers from the Western Australian Police Force about the work and services Mr Pearson had provided for the practitioner, doing so with the intention of misleading the police, where:
(1)the Western Australian Police Force was carrying out an investigation into the suspected unlawful killing of Mrs Rayney; and .
(2)the practitioner knew that police officers from the Western Australian Police Force had described him as a 'person of interest' in that investigation.
Ground 5
On 20 September 2007 the practitioner engaged in professional misconduct within the meaning of the Legal Profession Act 2008 (WA) by concealing a dictaphone on his person during the execution of a warrant to search the Home, doing so to avoid production of the dictaphone to the Western Australian Police Force, where
(1)the Western Australian Police Force was carrying out an investigation into the suspected unlawful killing of Mrs Rayney;
(2)the practitioner knew that police officers from the Western Australian Police Force had described him as a 'person of interest' in that investigation; and
(3)the practitioner knew that the dictaphone was within the scope of the things to be searched for under the search warrant.
Ground 6
Shortly after 20 September 2007, in the circumstances specified in Ground 1 above, the practitioner engaged in professional misconduct within the meaning of the Legal Profession Act 2008 (WA) by destroying, or alternatively disposing of, two dictaphones (including all the audio recording files maintained on them), one of those dictaphones being the dictaphone on which the practitioner had recorded conversations between himself and Mrs Rayney without her knowledge or consent, doing so to put the dictaphones (including all the audio recording files maintained on them) beyond the reach of the Western Australian Police Force, where:
(1)the Western Australian Police Force was carrying out an investigation into the suspected unlawful killing of Mrs Rayney;
(2)the practitioner knew that police officers from the Western Australian Police Force had described him as a 'person of interest' and a 'suspect' in that investigation;
(3)the practitioner had been charged with an offence under s 5(1) of the Surveillance Devices Act 1988 (WA); and
(4)the practitioner knew that the dictaphones were within the scope of the things to be searched for under search warrants executed by police officers of the Western Australian Police Force on 22 August 2007 (at the Home) and 20 September 2007 (at the Home and at the practitioner's office at Francis Burt Chambers).
Ground 7
On 2 February 2009, in the circumstances specified in Ground 1 above, the practitioner engaged in professional misconduct within the meaning of the Legal Profession Act 2008 (WA) by swearing an affidavit (February Affidavit) to be read in application 3 & 6 of 2007 in the Magistrates Court of Western Australia at Perth in which the practitioner gave evidence on oath as particularised below when the practitioner knew, or alternatively the practitioner was recklessly indifferent to whether, the evidence was false, doing so with the intention of misleading the Magistrates Court of Western Australia as to the matters the subject of the evidence.
Particulars of Evidence
(1)Mrs Rayney having, by an email dated 13 July 2007, made an insinuation against the practitioner which was entirely untrue, recordings of conversations between the practitioner and Mrs Rayney were made by the practitioner on a dictaphone in an attempt to create a record that the insinuation was false, for the purpose of seeking legal advice and for use of the record in litigation.
(2)When the practitioner recorded on the dictaphone conversations between himself and Mrs Rayney that were in person:
(a)the practitioner placed the dictaphone in a clearly visible position which was unobstructed by any objects, so that it could record what Mrs Rayney and the practitioner said;
(b)the dictaphone was visible to both the practitioner and Mrs Rayney; and
(c)Mrs Rayney was aware that the dictaphone was recording the conversation between the practitioner and Mrs Rayney.
(3)When the practitioner recorded on the dictaphone conversations between him and Mrs Rayney that were telephone conversations, during the telephone conversations, and prior to the recordings, Mrs Rayney was made aware that the telephone call would be recorded.
(4)The recordings on the dictaphone of the conversations between the practitioner and Mrs Rayney, as were later copied to a compact disc, were made by the practitioner with the full knowledge and consent of Mrs Rayney.
Ground 8
On 19 November 2009, in the circumstances specified in Ground 1 above, the practitioner engaged in professional misconduct within the meaning of the Legal Profession Act 2008 (WA) by giving evidence on oath before Magistrate Flynn in the Magistrates Court of Western Australia as particularised below when the practitioner knew, or alternatively the practitioner was recklessly indifferent to whether, the evidence was false, doing so with the intention of misleading the Magistrates Court of Western Australia as to the matters the subject of the evidence.
Particulars of Evidence
(1)The contents of the February Affidavit were true and correct.
(2)Mrs Rayney had agreed and consented to the practitioner recording conversations between the practitioner and Mrs Rayney on a dictaphone.
(3)The practitioner copied all of the conversations between the practitioner and Mrs Rayney that had been recorded on the dictaphone to a compact disc; and that disc was in the custody of the court.
(4)The practitioner told Mrs Rayney he was going to record certain telephone conversations between the practitioner and Mrs Rayney before doing so.
(5)When the practitioner recorded conversations between the practitioner and Mrs Rayney that were in person the dictaphone on which the conversations were recorded was in view of where Mrs Rayney was and was not concealed.

The factual relationship between the Original Application and the s 56(2) Notice

Ground 1 of the Original Application was substantially the same as that which appeared in the s 56(2) Notice under the heading 'Secret Recordings and Breach of Surveillance Devices Act 1998' (that is, paragraphs (a)(h)).
Ground 2 of the Original Application was substantially the same as that which appeared in the s 56(2) Notice under the heading 'Arranging for Recordings of Telephone Conversations' (that is, paragraphs (m)(q)).
Ground 3 of the Original Application was substantially the same as that which appeared in the s 56(2) Notice under the heading 'Arranging for Recordings of Telephone Conversations'. This ground is implicit in paragraphs (m)(q) of the s 52(2) Notice because, although the s 56(2) Notice does not refer to actually listening to the conversation, it is implicit that if you seek to record a conversation you would want to listen to it (see, in particular, paragraph (m) of the s 52(2) Notice).
Ground 4 of the Original Application was substantially the same as that which appears under the heading 'Encouraging Third Party to Mislead the Police' (that is, paragraphs (t)(u)).
Ground 5 of the Original Application does not specifically appear in the s 52(2) Notice.
Ground 6 of the Original Application was substantially the same as that which appeared under the heading 'Disposing of Dictaphones' (that is, paragraphs (i)(l)).
Ground 7 of the Original Application was substantially the same as that which appeared in the s 56(2) Notice under the heading 'False Evidence and False Claim of Legal Professional Privilege' (that is, paragraphs (e)(g)).

Events following the filing of VR 173 of 2015

Immediately after the commencement of the LPCC Proceedings, the LPCC sought an urgent directions hearing. That directions hearing was scheduled for 14 October 2015.
The LPCC raised with the Tribunal the partial overlap between the issues in Mr Rayney's review proceedings and the LPCC Proceedings. The LPCC submitted that it did so to allow Mr Rayney, and the Tribunal, to decide whether arrangements should be made to avoid a multiplicity of hearings given the imminent listed hearing in Mr Rayney's review proceedings.

Grounds 2 and 3 of the Substituted Application assert that Mr Rayney gave false evidence on affidavit and in person before Magistrate Flynn in 2009, knowing such evidence to be false or being recklessly indifferent to the same with the intention of misleading the Magistrates Court of Western Australia. Essentially, the allegations in Grounds 2 and 3 arise only if the allegation in Ground 1 that the recordings were made without Mrs Rayney's consent is made out.
As Mr Rayney's submissions note, each of the particulars of evidence relied upon by the LPCC in support of Grounds 2 and 3 were the subject of evidence by Mr Rayney in the Board proceedings:
•witness Statement of Lloyd Patrick Rayney dated 18 October 2015 at paragraphs [703]-[731], [763]-[818], [874]-[883], [902]-[924].
• examination in chief of Mr Rayney transcript paragraphs: [TS20000TS201] and [TS320 TS322];
•cross-examination of Mr Rayney (see transcript paragraphs: [TS205-TS211], [TS215TS220], [TS223TS242], [TS2480TS253], [TS264], [TS266TS268], [TS300], [TS310TS311] and [TS313TS319]); and
•comment by the Tribunal (see paragraphs [293]-[296], [299], [302][307], [317], [345], [346], [367]-[370], [465], [481], [483], [486], [496]).
The first of the four particulars of evidence to Ground 2 refer to Mr Rayney's explanation for his conduct in recording conversations between himself and Mrs Rayney using a handheld dictaphone.
As Mr Rayney's submissions note, in the Board Proceedings the Tribunal found that:
(i)an oral insinuation was made by Mrs Rayney (see paragraph [98] of Rayney v The Legal Practice Board of Western Australia [2016] WASAT 7);
(ii)the insinuation was repeated by Mrs Rayney in an email to Mr Rayney on 13 July 2007 (see paragraph [98] of Rayney v TheLegal Practice Board of Western Australia [2016] WASAT 7);
(iii)the insinuation would be, and was, deeply distressing to Mr Rayney (see paragraph [99] of Rayney v The Legal Practice Board of Western Australia [2016] WASAT 7); and
(iv)there was no evidence to support any insinuation of impropriety on Mr Rayney's part, or in any way support such an insinuation (see paragraph [99] of Rayney v The Legal Practice Board of Western Australia [2016] WASAT 7).
The Tribunal in the Board Proceedings found that Mr Rayney's conduct after the insinuations were made by Mrs Rayney needed to be seen in the light of that insinuation by Mrs Rayney and its effect on him (see Rayney at [99]).
The other particulars of evidence to Ground 2 and the particulars of evidence in 2, 4 and 5 to Ground 3 were the subject of evidence by Mr Rayney and comment by the Tribunal.
It was unnecessary for the Tribunal to make certain formal findings in relation to the s 56(2) Notice in the Board Proceedings as a result of the Board's decision not to pursue the allegation contained in its s 56(2) Notice in relation to the use of a dictaphone to record Mrs Rayney's conversations.
When counsel for the Board was asked if the use of the dictaphone by Mr Rayney to record conversations was a ground for cancelling Mr Rayney's practising certificate, counsel for the Board stated that the short answer is that the use of the dictaphones is only there as a fact that goes to the disposal of the dictaphones (Exhibit C page 421).
The Board's explanation of that issue reflects how inextricably the fact of whether Mrs Rayney had given her consent to the dictaphone recordings was tied up with the issues that arose in the Board Proceedings.
It is beyond doubt that, as the LPCC submits, the single issue in the LPCC Proceedings is whether the dictaphone recordings were made with Mrs Rayney's consent, an issue that was thoroughly explored by the Board in the Board Proceedings.
Indeed, so much is apparent from the LPCC's submissions in the recusal application set out below:
20.The primary findings of significance are the favourable credibility findings in relation to Mr Rayney's evidence in the Board's matter before the Tribunal - particularly since it will be the Committee's case that some of that evidence was deliberately false. Also relevant is the acceptance of Mr Rayney's explanation for seeking to record conversations between him and Mrs Rayney.
21.The favourable credit findings are of material significance to the issues that arise in the Committee's referral. Findings as to Mr Rayney's credit will be Critical to the proper disposition of the Committee's referral. In the referral factual issues will arise as to:
(1)whether Mr Rayney's dictaphone recordings of conversations between himself and Mrs Rayney were recorded with Mrs Rayney's knowledge and consent (Mr Rayney presumably intending to contend that the recordings were made with Mrs Rayney's knowledge and consent);
(2)whether Mr Rayney's evidence to the Magistrates Court (to the effect that the dictaphone recordings were recorded with Mrs Rayney's knowledge and consent) was knowingly false, alternatively, was given with reckless indifference to whether the evidence was false.
22.There will, in these respects, also be issues in the nature of whether there ought to be intermediate factual findings rejecting Mr Rayney's earlier evidence as to: (1) his purpose in recording the Conversations (i.e, Mr Rayney's explanation for seeking to record his conversations with Mrs Raney); and (2) the matters referred to in para 10 above.
23.Mr Rayney's credit was a central issue in the Board's matter and will be a central issue (and possibly a determining issue) in the Committee's referral.
24.In the circumstances there is a logical connection between the findings made by the Tribunal members who determined Rayney and Legal Practice Board of Western Australia [2016] WASAT 7 and the feared deviation from the course of deciding the present referral on its merits.
25.There is a real possibility that the participation in the present referral of the learned members of the Tribunal who determined Rayney and Legal Practice Board of Western Australia might lead to a reasonable apprehension, of pre-judgment. Relevantly:
(1)A fair-minded lay observer might reasonably think that the learned members might not be determine Mr Rayney's credit and the other factual issues arising on the referral by reference to the evidence presented and uninfluenced by the view formed of Mr Rayney and his evidence in Rayney and Legal Practice Board of Western Australia.
(2)That is all the more so given the similar circumstances with which the impugned conduct is concerned, i.e. the attempted recording of conversations between Mr and Mrs Rayney (in the Board's matter) and the recording of conversations between Mr and Mrs Rayney (in the present referral). In each case the Tribunal will be called upon to consider Mr Rayney's explanation for seeking to record such conversations. The issues concerning Mr Rayney's credit arise in both matters in similar circumstances.
The submission by the LPCC that when Mr Rayney was crossexamined there was no challenge to his evidence that the dictaphone recordings were made without Mrs Rayney's consent simply does not accord with the transcript read as a whole. Indeed as a member of the Tribunal who heard the Board Proceedings, I find this to be an astonishing submission. It was obvious to the Tribunal that the tone in which the crossexamination was conducted directly challenged MrRayney's evidence. The recordings were admitted into evidence. One assumes that they were admitted into evidence because the Board believed them to be relevant. The fact that neither party may have addressed the content of the recordings does not detract from the fact that the Board's crossexamination directly challenged Mr Rayney's evidence of Mrs Rayney's consent to the use of the dictaphone to record the conversations.

Did the different nature of the LPCC Proceedings and the Board Proceedings justify the LPCC's action?

The LPCC submits that Mr Rayney's review application was different in nature and substance from the LPCC Proceedings because:
First, the LPCC was not a party to the review proceedings. The LPCC and the Board are not a single regulator. They have separate, and exclusive, functions
Secondly, the issue for determination by the Tribunal on the referral by the LPCC (a matter in the Tribunal's original jurisdiction) is different from the issue for determination by the Tribunal on Mr Rayney's application for review (a matter in the Tribunal's review jurisdiction).
In the LPCC proceedings the Tribunal has jurisdiction to determine whether Mr Rayney has engaged in unsatisfactory professional conduct, or professional misconduct (LP Act, s 438(1)).
In Mr Rayney's review application the Tribunal had jurisdiction to review the Board's decision and produce the 'correct and preferable' decision as to whether at the time of the Tribunal's decision the practitioner is no longer a fit and proper person to hold a local practising certificate (LP Act, s 55(b), s 56(3)(c) and s 78(a); SAT Act, s 27).
In respect of Mr Rayney's review application, the Tribunal's jurisdiction was limited to affirming the Board's decision, varying the Board's decision or setting aside the Board's decision (SAT Act, s 29(3)). In respect of the LPCC's referral, if the Tribunal were to make a finding of unsatisfactory professional conduct or professional misconduct, the Tribunal may, among other things, make and transmit a report to the Full Bench of the Supreme Court, which could lead to the removal of Mr Rayney's name from the roll of practitioners admitted to the legal profession (LP Act, s 438(2)(a), s 444). The Tribunal may also make one or more of the orders specified in s 439, s 440 or s 441 of the LP Act.

As the authorities make clear in determining whether there has been an abuse of process, the Tribunal is required to consider substance over form.
The fact that the LPCC was not a party to the review proceedings misses the point. It was not necessary that the LPCC be a party to the Board Proceedings in order for the Tribunal to find that there has been an abuse of process.
The LPCC submitted that the LPCC's referral was not part of Mr Rayney's review application and could not have been part of that review application. It submitted that in nature and substance Mr Rayney's review proceedings could deal only with the Board's decision to cancel Mr Rayney's practising certificate, not whether Mr Rayney had engaged in professional misconduct or unsatisfactory professional conduct. The LPCC concedes, as it must, that it is possible that the referral and the review application might have been heard together. The fact that the Tribunal in its review jurisdiction and in its original jurisdiction might have been drawing different legal conclusions about the same conduct is no excuse for the failure to have the matters heard together. The factual investigations were substantially the same.
Again, the fact that different orders might have been sought as a result of the same factual findings is no excuse for the failure of the LPCC to ensure that the matters were heard together.
As noted above, all of these issues would be otiose had the LPCC proceeded, as it should have, with the LPCC Proceedings on 20 October 2015 in tandem with the Board Proceedings.

Double jeopardy

The Board Proceedings and the LPCC Proceedings fall squarely within the concept of double jeopardy, identified by Gleeson CJ in Gill set out above, in that the complaint in the LPCC Proceedings arose out of the same pattern of conduct as gave rise to the Board Proceedings and there is a substantial degree of factual overlap between the issues.

The LPCC's conduct in the prosecution of its s 421 Notice

Mr Rayney submitted that the LPCC stood by and allowed a full hearing by the Tribunal of the Board Proceedings which could have included the matters the subject of the LPCC Proceedings (T:14; 11.08.16). Mr Rayney submitted that 'the LPCC seeks to litigate matters which could have and should have been litigated in the [Board] Proceedings' (paragraph 59).
The only aspect of the Board's s 56(2) Notice and the LPCC's s 421 Notice not dealt by the courts at the time when those notices were issued was the Telecommunications Charges trial which concluded on 7 May 2015. The Board was in a position to address the Telecommunications Charges and produce relevant evidence for the Board Proceedings.
There were good reasons for some delay pending the resolution of Mr Rayney's Telecommunications Charges. However, the fact that those may have been good reasons for delay did not permit the LPCC to not progress its investigation once the Telecommunication Charges had been dealt with. The length of delay and the LPCC's statutory obligation under s 431 of the LP Act made it imperative that the LPCC could have and should have proceeded. It did not.
The LPCC was not operating in a vacuum. The Board, of which the LPCC is a committee, had issued a s 56(2) Notice. No explanation was offered by the LPCC as to why the timetable could not have commenced in June 2015.
More importantly, no explanation was offered by the LPCC as to why, in the light of all the evidence then available to the LPCC, a complaint could not have been made directly to the Tribunal so as to ensure that the LPCC Proceedings and the Board Proceedings were heard together. In that context issues of different standards and different remedies would have been otiose because all of the factual matters could have been heard together.

VR 132 of 2015 and VR 173 of 2015 should have been heard together

The Board Proceedings and the LPCC Proceedings should have been heard together, given the closeness of the factual allegations made against Mr Rayney in the s 421 Notice and the s 56(2) Notice.
The Tribunal is satisfied that the LPCC should have and could have been in a position to proceed with the hearing of the LPCC proceedings at the same time as the Board Proceedings.

Did the LPCC act so as to obtain a forensic advantage?

It has been necessary to examine closely the LPCC's actions, particularly in relation to how the LPCC could have and should have acted in all the circumstances, in order to answer Mr Rayney's allegation in his submissions that the LPCC acted (or perhaps more accurately failed to act) so as to obtain a forensic advantage. The case made is, in effect, that by not having all factual issues dealt with at the one hearing the LPCC could effectively wait and have a 'second go'. If the Board failed to uphold the cancellation of Mr Rayney's practising certificate the LPCC could then seek the recusal of the panel if the outcome was not to its liking. Whilst the Tribunal is satisfied that the LPCC could have and should have issued its application and been in a position to proceed with a joint hearing with the Board Proceedings, it is not satisfied that the LPCC acted so as to obtain a forensic advantage.

The effect of Mr Rayney's request for the LPCC Proceedings to await the outcome of the Board Proceedings

The LPCC sought to rely on Mr Rayney's request for extensions of time and the fact that he did not wish to defer the hearing of the Board Proceedings as a justification for its delay. The LPCC submitted that Mr Rayney opposed a deferment in the hearing of the Board Proceedings when he did so in the knowledge that the review proceedings did not address, and could not determine, the remaining matters in the LPCC Proceedings.
Mr Rayney was in the extraordinarily difficult position that he had not practiced for some three to four years. It was obvious that once the Board cancelled his practising certificate he would seek to practise again as soon as possible.
It is evident from what has been stated above that the LPCC could have and should have been in a position to proceed on 20 October 2015. The LPCC does not appear to have ever suggested to Mr Rayney that the matters should be heard together on 20 October. Rather ,it was suggesting that further investigations were required and proposed a timetable that was unnecessary.
The LPCC had a duty under the LP Act and to this Tribunal to proceed as expeditiously as practicable. It failed to do so.
The fact that Mr Rayney requested extensions to respond to the LPCC is not relevant to whether the LPCC's actions constituted an abuse of process. The information sought by the LPCC after the Board cancelled Mr Rayney's practising certificate was unnecessary. Had the LPCC actually turned its mind to the necessity for that information, rather than grinding on inexorably, the fact that the LPCC did not require that information would have been obvious to it.
Had the LPCC Proceedings been ready, as they should have been, they could have and would have been directed by this Tribunal to be heard with the Board Proceedings. As Mr Rayney submitted, the fact that the LPCC Proceedings did not proceed cannot be visited on Mr Rayney. The Tribunal rejects the LPCC's contention that the failure to proceed is not the fault of anyone. Rather, it is the fault of the LPCC.
The LPCC submits that until the LPCC's investigation was finalised, and a decision was made as to what matters, if any, the LPCC would refer to the Tribunal, the LPCC was not in a position proceed. The Tribunal disagrees. The common factual allegations required the LPCC to put itself in a position where it could proceed at the same time as the Board Proceedings.

Inconsistent findings

In the Board Proceedings (Rayney at [483]), the Tribunal stated:
The Tribunal does not accept that Mr Rayney's evidence to this Tribunal has been deliberately false or that he lacked candour in his dealings with the Board.
At the hearing of the s 47 application the LPCC concedes that in order to make good the grounds that it advances in the LPCC Proceedings, it will seek findings that are contrary to the findings in Rayney at [483] (T:38; 11.08.16).
Mr Rayney submitted that the proposed challenge asserted by the LPCC would amount to a collateral attack on a finding of this Tribunal and, as such, should not be condoned or allowed.
Mr Rayney submitted that the principle in Hunter prevents a collateral attack against final decisions of a superior court. Whilst the LPCC is not seeking to attack a final decision of a superior court, the relevant principles (which are comprehensively analysed in Christine Anne Donnellan (By her next friends Walter Francis Martins and Audrey Constance Martins joint plenary guardians and administrators) v The Public Trustee [2007] WASC 213 (Donnellan) at [27][55] by Newnes J (as he then was))equally apply to the Tribunal.
Mr Rayney referred to the judgment of Newnes J (as he then was) in Donnellan at [40]-[42], who stated that:
In the recent decision of the English Court of Appeal in Secretary of State for Trade and Industry v Bairstow [2004] Ch 1, Morritt VC, having reviewed the earlier cases, drew the following propositions from them:
(a)A collateral attack on an earlier decision of a court of competent jurisdiction may be but is not necessarily an abuse of the process of the Court … (c) If the earlier decision is that of a court exercising a civil jurisdiction then it is binding on the parties to that action and their privies in any later civil proceedings. (d) If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the Court to challenge the factual findings and conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated or (ii) to permit such relitigation would bring the administration of justice into disrepute.
That passage was referred to with approval by the Court of Appeal of New South Wales in Cleary v Jeans [2006] NSWCA 9, albeit the court noted that it must be understood subject to the decisions of the High Court …
It is not, therefore, necessarily sufficient simply for the defendant to show that the proceedings are a collateral attack on an earlier final decision. It must also appear that it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated or that to permit such re-litigation would bring the administration of justice into disrepute.

The Tribunal is not persuaded that the finding as to Mr Rayney's credit is a 'final decision' that engages the principle of abusive collateral attack. Nevertheless, the fact that the LPCC admittedly now seeks to challenge that finding and, as a consequence, seeks that the panel of the Tribunal that heard the Board Proceedings now recuse itself, illustrates that the LPCC's decision not to proceed with the LPCC Proceedings in conjunction with the Board Proceedings was unsatisfactory.

An 'inescapable irony'?

The LPCC submitted that:
… there is an inescapable irony in Mr Rayney now contending, by his s 47 application, that the LPCC's proceedings involve an abusive collateral attack on a finding of the Tribunal. The issue only arises because Mr Rayney notwithstanding that there was no issue in the review proceedings as to whether the dictaphone recordings were made with Mrs Rayney's knowledge and consent introduced evidence which contradicted the prior judicial findings made in proceedings to which he was a party.
The 'inescapable irony' referred to above is lost on the Tribunal. As the Tribunal made clear in Rayney, Mr Rayney had not at the time of the alleged conduct been tried for wilful murder or on the Telecommunications Charges. There were sound forensic reasons for Mr Rayney's course of conduct.
The LPCC seeks to litigate matters which could and should have been litigated in, or in tandem with, the Board Proceedings since they:
1)arise out of the same conduct as gave rise to the earlier issues determined in Board Proceedings; and
2)raise issues which so substantially overlap with those that arose under the earlier Board Proceedings as to warrant a conclusion that the grounds should have been raised.
The Board Proceedings and these proceedings raise the same central issue, namely, whether Mr Rayney is a fit and proper person to hold a local practising certificate. The issues sought to be relied upon in these proceedings were known to, but not raised by the Board in the Board Proceedings.

Efficiency and economy

Efficiency and economy in the conduct of the Board Proceedings and the LPCC Proceedings demanded that they be heard together. Two separate hearings were unnecessary and contrary to the interests of the parties and the public as a whole.

Protection of the public

Protection of the public is the primary purpose of disciplinary proceedings (Woollard at [41]). The protection extends to both the public and the profession (Ibid at [42]). See also Medical Board of Australia and Myers [2014] WASAT 137 (S) at [8][9]).
In Woollard at [43] the Tribunal cited the following passage from Gill which considered the role of public interest in determining which proceedings should be dismissed as an abuse of power:
… before this Court exercises its supervisory jurisdiction to stay the proceedings in the Medical Tribunal it is important to weigh in the balance considerations of public interest. These considerations are not all one way. There is public interest in fairness of judicial and disciplinary procedure. The arguments so far canvassed do not merely reflect the private interests of the claimants. Nevertheless, there is a public interest in the due prosecution of charges such as those presently involved and it is necessary to measure the weight of that interest in the present case.
To similar effect in Walton, Mason CJ and Deane and Dawson JJ stated:
… in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners (Ibid at 396).
In determining where the public interest lies, it is relevant whether the conduct complained of has ceased, particularly if such conduct ceased a long time ago (Woollard at [44]).
As expressed by Gleeson CJ in Gill, '[t]here is a public interest in fairness of judicial and disciplinary procedure (Gill at 201).
The circumstances in Gill are not directly applicable to Mr Rayney's circumstances. As the LPCC correctly submits there is a significant difference between a now ceased surgical procedure and questions of honesty and integrity.
Mr Rayney submitted that the public interest tells against the continuation of the LPCC Proceedings as the conduct occurred seven to nine years ago and there has been no further allegation of such conduct (Mr Rayney's written submissions paragraphs 56 and 64).
The LPCC submitted that the LPCC Proceedings are concerned with matters of honesty and integrity (as described by De Jersey CJ in Barristers Board v Young [2001] QCA 556 at [22]). Honesty and integrity are matters of ongoing importance to the practice of law particularly as a member of the Bar:
The Bar is no ordinary profession or occupation. The duties and privileges of advocacy are such that, for their proper exercise and effective performance, counsel must command the personal confidence, not only of lay and professional clients, but of other members of the Bar and of judges (Re Davis [1947] HCA 53; (1947) 75 CLR 409, 420).
... the Bar is no ordinary profession or occupation. These are not empty words, nor is it their purpose to express or encourage professional pretensions. They should be understood as a reminder that a barrister is more than his client's confident, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. He is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations. If a barrister is found to be, for any reason, an unsuitable person to share in the enjoyment of those privileges and in the effective discharge of those responsibilities, he is not a fit and proper person to remain at the Bar (Ziems v The Prothonotary of The Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279, 298).
The LPCC submits that there is a continuing public interest in the matters before the Tribunal in the LPCC Proceedings being determined. It submits that Mr Rayney's intrinsic character has been impugned by prior judicial findings. The grounds now referred to the Tribunal concern matters the subject of those findings. It is submitted that it is in the interests of the public, the profession and the due administration of justice that the matters be adjudicated upon by the Tribunal as the body with statutory responsibility for determining whether legal practitioners have committed professional misconduct.
The Tribunal observes that the prior judicial 'findings' were made in the circumstances referred to above.
As Mr Rayney submits, the alleged events occurred many years ago. Those matters could have been dealt with in the Board Proceedings. The long passage of time made it all the more imperative that they be dealt with as soon as possible. There is nothing in the public interest in dealing with them that justifies the LPCC failure to proceed in conjunction with the Board Proceedings.
Importantly, Mr Rayney does not invite the Tribunal to draw an inference that, in not addressing sub-paragraphs (a) to (h) of the s 56(2) Notice, the Board formed a view that the conduct referred to therein had not occurred. Nor could he. Such a contention would be inconsistent with Mr Rayney's concession, properly made, that on his s 47 application the Tribunal must proceed on the assumed basis that the LPCC will establish all of the factual assertions in its application at any final hearing (Mr Rayney's written submissions paragraph 35).

Bringing the administration of justice into disrepute

Our legal system does not permit allegations to be dealt with piecemeal. It is a fundamental principle of justice that allegations with a common factual basis should be dealt with together. A person should not have to face multiple suits brought by the same entity. To do so brings the administration of justice into disrepute.

Summary

It is useful to again note the relationship between the s 421 Notice, the s 56(2) Notice, the Board Cancellation Notice, the LPCC Original Application and the LPCC Substituted Application.

Section 421 Notice	Section 56(2) Notice	Section 56(4) Cancellation Notice	LPCC Original Application	LPCC Substituted Application
Secretly recording conversations with Mrs Rayney using a handheld Dictaphone	(i)	5(a)(d)	Ground 1	Ground 1
False evidence and claim of Legal Professional Privilege	(f), (g), (h), (k)	5(e) and (h)	Ground 7 Ground 8	Ground 2 Ground 3
Disposing of Dictaphones	(d), (j)	5(i)(l)	Ground 2 (a)(d)	Ground 6
Arranging for recordings of telephone conversations	(a)	5(m)(q)	Ground 2 (e)(h)	Ground 2 Ground 3
Removing equipment and disposing of recordings	(b), (e)	5(r)(s)	Ground 5
Encouraging third party to mislead the police	(c)	5(l)(u)	Ground 4

The Tribunal has concluded that there was no reasonable justification for the LPCC Proceedings not having been heard in tandem with the Board Proceedings based on legitimate considerations of convenience, cost or the like. Indeed, the efficiency and economy of the conduct of the litigation in the interests of the parties and the public as a whole required that the Board Proceedings and the LPCC proceedings be heard together.
The hearing of the Board Proceedings and the LPCC Proceedings together would have been consistent with:
a)the LPCC's obligation to deal with complaints as efficiently and expeditiously as was practicable; and
b)the objectives of the Tribunal pursuant to s 9 of the SAT Act to act as speedily as possible and to minimise the costs to the parties. The objectives of the Tribunal apply equally to the members of the Tribunal and to those who appear before it, particularly public disciplinary bodies such as the LPCC.
There was a substantial factual similarity between the issues raised in the Board's s 56(2) Notice and the LPCC's s 421 Notice. Knowledge of the facts said to support the matters alleged to support the factual issues were common to the Board and the LPCC and were the subject of submissions from Mr Rayney. Even though matters the subject of the Cancellation Notice issued by the Board cancelling Mr Rayney's practising certificate were not formally before the Tribunal in the Board Proceedings, they were the subject of evidence in the Board Proceedings. If, as it should have, the LPCC Proceedings had proceeded in tandem with the Board Proceedings, the common factual issues would have enabled all of the matters the subject of the Board Proceedings and the LPCC Proceedings to have been dealt with by one Panel in one hearing. Resolution of the ultimate issues in the Board Proceedings and the LPCC Proceedings involved common evidentiary issues. There was nothing in the relief sought or the nature of the findings sought in the Board Proceedings and the LPCC Proceedings that made it appropriate for those proceedings to be resolved separately.
There was ample opportunity for the LPCC Proceedings and the Board Proceedings to be heard together. The LPCC did not take advantage of that opportunity when it could have and should have. It follows that there could have and should have been finality of all the evidentiary and ultimate issues raised against Mr Rayney by the Board and the LPCC.
No valid reason was advanced by the LPCC as to why the LPCC Proceedings could not have been heard at the same time as the Board Proceedings. They could have and should have been heard at the same time.
Although the Tribunal has not adjudicated on the subject matter of the grounds now referred to it in the LPCC Proceedings, it is remarkable that the LPCC seeks to continue to prosecute the proceedings. To the extent that Mr Rayney 'will have gained an advantage', that arises simply because the LPCC did not prosecute the LPCC Proceedings when it could have and should have done so. The LPCC's submission that Mr Rayney will have 'gained an advantage' merely by seeking a review of the Tribunal's decision to cancel his practising certificate is not correct. Mr Rayney was entitled to seek a review of the Board's decision to cancel his practising certificate as quickly as possible, particularly in circumstances where he had not practised for a significant period of time. The LPCC was not entitled to proceed as if the Board Proceedings had not been instituted. It was not entitled to proceed as if it had no information.
Not to have proceeded with the Board Proceedings and the LPCC Proceedings together was clearly oppressive to Mr Rayney. His practising certificate had been cancelled by the Board. He was entitled to apply to have that decision reviewed. It was entirely reasonable for him to have expected that all of the factual issues would have been dealt with in one hearing. It would be unfair if he now had to face yet another hearing in circumstances where the LPCC Proceedings could have and should have been dealt with in October 2015.
For Mr Rayney to have to now face a trial of the LPCC Proceedings would impact adversely upon the principle of finality of judicial determination and public confidence in the administration of justice. Public confidence in the administration of justice would be eroded in circumstances where the LPCC Proceedings could have and should have been dealt with in conjunction with the Board Proceedings. Although the continuation of the LPCC Proceedings would not be inconsistent with the literal application of SAT's procedural rules and the LP Act, it would nevertheless bring the administration of justice into disrepute among rightthinking people.
When the LPCC could have and should have proceeded in conjunction with the Board Proceedings in October 2015 its interests in having the LPCC Proceedings heard as against Mr Rayney's interests in finality and the ability to get on with his life lead to the overall balance of justice favouring the dismissal of the LPCC Proceedings as an abuse of process.

Conclusion

The time has come to say enough. The Tribunal finds that this is a most exceptional case. The Tribunal finds that pursuant to s 47 of the SAT Act the continuation of the LPCC's application would constitute an abuse of process.

Orders

1.Mr Rayney's application dated 26 April 2006 that the Legal Profession Complaints Committee's proceedings in VR 173 of 2015 be dismissed, is granted on the ground that those proceedings are an abuse of process.
2.The Legal Profession Complaints Committee's application in VR 173 of 2015 is dismissed pursuant to s 47 of the State Administrative TribunalAct 2004 (WA) on the ground that it is an abuse of process.
3.The Legal Profession Complaints Committee's application, dated 26 April 2016, for the Tribunal members who heard Rayney and the Legal Practice Board of Western Australia [2016] WASAT 7 to recuse themselves is dismissed on the basis that it is now irrelevant.
4.By 9 January 2017, Mr Rayney is to file and serve any submissions and evidence in relation to an order for costs.
5.By 30 January 2017, the Legal Profession Complaints Committee is to file and serve any submissions and evidence in relation to an order for costs.
6.The application for costs is to be determined on the papers.

I certify that this and the preceding [295] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT