Legal Profession Complaints Committee v Lourey

[2022] WASCA 114

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   LEGAL PROFESSION COMPLAINTS COMMITTEE -v- LOUREY [2022] WASCA 114

CORAM:   BUSS P

MITCHELL JA

VAUGHAN JA

HEARD:   8 FEBRUARY 2022

DELIVERED          :   31 AUGUST 2022

FILE NO/S:   CACV 78 of 2019

BETWEEN:   LEGAL PROFESSION COMPLAINTS COMMITTEE

Appellant

AND

MICHAEL JOSEPH LOUREY

Respondent

ON APPEAL FROM:

Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL

Coram:   JUDGE T SHARP, DEPUTY PRESIDENT

DR C PEARS, SENIOR SESSIONAL MEMBER

MR M HARFORD, SENIOR SESSIONAL MEMBER

Citation: LEGAL PROFESSION COMPLAINTS COMMITTEE and LOUREY [2019] WASAT 41

File Number            :   VR 98 of 2018

Catchwords:

Professions and Trades - Legal practitioner - Disciplinary proceedings before State Administrative Tribunal - Findings that the respondent engaged in professional misconduct and unsatisfactory professional conduct - Whether there was no evidence to support some of the Tribunal's findings of fact - Whether the Tribunal failed to afford the appellant procedural fairness by failing to inform the parties that it contemplated not determining the respondent's liability by reference to the appellant's allegations in the proceedings and by failing to consider each of those allegations - Whether the Tribunal's reasons for decision were adequate

Tribunals - State Administrative Tribunal - Whether it is open to the State Administrative Tribunal, at a penalty hearing in relation to disciplinary proceedings, to consider whether to make findings contended for by the disciplinary body at the liability hearing but not made by the Tribunal in its reasons for decision in relation to liability, without the appeal court granting leave to appeal, allowing the appeal, quashing the relevant decision of the Tribunal and remitting the matter to the Tribunal

Legislation:

Legal Profession Act 2008 (WA)
State Administrative Tribunal Act 2005 (WA)

Result:

Leave to appeal granted
Appeal allowed
Various orders made by the Tribunal with respect to liability set aside
Matter remitted to a differently constituted Tribunal for a hearing and decision according to law on various issues with respect to liability

Category:    A

Representation:

Counsel:

Appellant	:	Mr G D Cobby SC
Respondent	:	Mr P D Yovich SC

Solicitors:

Appellant	:	Legal Profession Complaints Committee
Respondent	:	Robertson Hayles Lawyers

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

Arbuthnot v Chief Executive of the Department of Work and Income [2008] 1 NZLR 13

Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334

Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353

Chang v Legal Profession Complaints Committee [No 2] [2020] WASCA 208; (2020) 56 WAR 263

Clodumar v Nauru Lands Committee [2012] HCA 22; (2012) 245 CLR 561

Comcare v Wuth [2018] FCAFC 13; (2018) 159 ALD 1

Executive Director of Health v Lily Creek International Pty Ltd [2000] WASCA 258; (2000) 22 WAR 510

Fidock v Legal Profession Complaints Committee [2013] WASCA 108

Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 55 SR (NSW) 243

Juul v Northey [2010] NSWCA 211

Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390

Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56

Legal Profession Complaints Committee v Rayney [2017] WASCA 78; (2017) 51 WAR 142

Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72

Sakalo v The Medical Board of Western Australia [2002] WASCA 178

Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (NSW) [2011] HCA 41; (2011) 245 CLR 446

TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175

Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492

Young v Legal Profession Complaints Committee [2022] WASCA 52

TABLE OF CONTENTS

The letters dated 2 June 2016, 17 June 2016 and 29 June 2016

The First Information Summons and the First Document Summons

The Second Information Summons and the Second Document Summons

The Tribunal's reasons

The Tribunal's orders

The relevant framework under the LP Act

The relevant provisions of the Legal Profession Conduct Rules 2010 (WA)

The relevant framework under the SAT Act

The decisions of the Tribunal challenged in this appeal

The Committee's right of appeal with leave

The substituted grounds of appeal and the alleged questions of law

The Committee's substituted orders wanted in the appeal

The Committee's proposed stance at the penalty hearing in the Tribunal

The organisation of the balance of these reasons

Alleged questions of law raised in respect of substituted ground 1:  the Committee's submissions

Alleged questions of law raised in respect of substituted ground 1:  the respondent's submissions

Alleged questions of law raised in respect of substituted ground 1:  their merits

Alleged questions of law raised in respect of substituted ground 3:  the Committee's submissions

Alleged questions of law raised in respect of substituted ground 3:  the respondent's submissions

Alleged questions of law raised in respect of substituted ground 3:  their merits

Alleged questions of law raised in respect of substituted ground 5:  the Committee's submissions

Alleged questions of law raised in respect of substituted ground 5:  the respondent's submissions

Alleged questions of law raised in respect of ground 5:  their merits

The orders that this court should make in the appeal

JUDGMENT OF THE COURT:

1. The appellant (the Committee) has applied for leave to appeal against a decision of the State Administrative Tribunal (the Tribunal) in relation to disciplinary proceedings brought by the Committee against the respondent, who is a legal practitioner.

2. On 8 June 2018, the Committee lodged an application with the Tribunal in which the Committee sought from the Tribunal an order embodying a finding that the respondent had engaged in professional misconduct, within s 438(1) of the Legal Profession Act 2008 (WA) (the LP Act).

3. The grounds upon which the Committee sought that order under the LP Act were set out in four annexures to the Committee's application described as Annexure A, Annexure B, Annexure C and Annexure D.

4. Annexure A contained four grounds.  Annexure B contained five grounds.  Each of Annexure C and Annexure D contained one ground.

5. Each of the Annexures contained a statement of facts and contentions and a statement of the ground or grounds for the Committee's allegations.  The statement of facts was not in dispute before the Tribunal and the Tribunal made findings of fact in accordance with the statement.  Neither the Committee nor the respondent filed any witness statements.  The Tribunal did not hear any oral evidence.

6. On 12 and 13 November 2018, there was a hearing before the Tribunal in relation to whether the respondent had engaged in professional misconduct as alleged by the Committee.  Counsel for the Committee and counsel for the respondent made oral submissions at the hearing.  The Tribunal reserved its decision on liability.

7. On 21 June 2019, the Tribunal published written reasons for decision and made numerous orders.  The orders included various findings by the Tribunal that the respondent had engaged in professional misconduct or unprofessional conduct.

8. The Tribunal has not yet conducted a hearing in relation to penalty or costs.

9. We would grant leave to appeal.  The appeal should be allowed, a number of the orders made by the Tribunal on 21 June 2019 should be set aside, and the matter should be remitted to a differently constituted Tribunal for a hearing and decision according to law on certain issues with respect to liability.

The letters dated 2 June 2016, 17 June 2016 and 29 June 2016

1. The respondent prepared letters dated 2 June 2016 and 17 June 2016 to the Director, Conciliation of WorkCover WA (the Director) which the respondent caused to be sent to the Director.  The letters related to the Director's decision not to accept an application made by the respondent's law firm (the Practice) on behalf of a client (Client S) under the Workers' Compensation and Injury Management Act 1981 (WA) (the Workers' Compensation Act).

2. The letter dated 2 June 2016 reads:

   We refer to your letter of 26 May 2016 indicating that you were unable to accept our client's application.

   Your suggestion that the requirements of s 182F of the Act have not been met is not maintainable. As you are aware, or should be aware, that section requires conferral and negotiation between the parties. As pointed out in our letter to the insurer which was included in the application, [Client S] has been conferring with QBE Insurance since lodging his claim form on 12 March 2016 which is now almost three months ago.

   In these circumstances for the Director to conclude that there has not been '… reasonable attempts … to resolve the issue in dispute' is simply not maintainable and manifestly unfair to [Client S].

   In these circumstances we urgently require the Director to review her decision and accept the application failing which we will take our client's instructions in relation to an application to the Supreme Court for prerogative relief.

3. The letter dated 17 June 2016 reads:

   We refer to previous correspondence and note your further letter of 7 June 2016 in which you maintain that our client has not done enough to 'confer' with the insurer prior to his WorkCover application being lodged.  We have discussed the matter with our client who is extremely distressed by your decision.  As he points out there is more than enough evidence of his attempts to resolve this with the insurer prior to the application being lodged.  It follows that there is no reliable evidence for you to maintain the decision in your letters of 2 and 7 June 2016.

   Our client has not ruled out the possibility of making a formal complaint against the Director personally as he is of the preliminary view that her conduct is with some malice and not based on the evidence or the law.  It appears to us also that any objective observer would see the correspondence of 2 and 7 June 2016 as pro-insurer and not balanced.

   Please note it is our view that our client is entitled to raise these concerns with the Director's conduct without being penalised.

4. By letter dated 21 June 2016, the Director made a complaint to the Committee about the respondent's conduct with respect to the 2 June 2016 letter and the 17 June 2016 letter (the WorkCover Complaint).

5. By letter dated 22 June 2016, a senior legal officer employed by the Committee informed the respondent about the WorkCover Complaint and expressed concern as to the content of the 17 June 2016 letter.  The officer invited the respondent to consider mitigating his conduct by apologising to the Director and withdrawing the 17 June 2016 letter.

6. The respondent then prepared a letter dated 29 June 2016 which the respondent caused to be sent to the Director.

7. The letter dated 29 June 2016 reads:

   We refer to your letter of 21 June received 22 June 2016.

   We will write separately in respect of your continued non-acceptance of our client's Form 100 application. However, in respect of that intended Form 100 application, please note the insurer has finally accepted liability for our client's claim so that the application is now no longer required.

   For now, we refer to your letter's last paragraph where you suggest our 17 June letter used 'intemperate language' to attribute particular 'motives' to the Director that were 'untrue and unfounded'. Could you please particularise:

   (1)the words of that paragraph that you consider are intemperate; and

   (2)the imputed (untrue and unfounded) motives that you say the language thereby attributed to you.

   We note you did refer the matter to [the Committee] who have already contacted us. We of course intend to deal directly with [the Committee] regarding your referral; however, so that we are very clear as to your precise concerns, ask that you provide us with the requested information, at your earliest convenience.

   In the interim, if our use of the term 'malice' offended you, it may well be you have (mis)interpreted that aspect of our letter in a personal sense, rather than in the intended legal sense that we used the word (for example, see Northern Territory v Mengel (1995) 185 CLR 307). As a public officer you are not immune from the tort of nonfeasance in a public office and our client is entitled to raise this with you without sanction against him or his solicitors.

8. By letter dated 1 July 2016, the Committee referred to the 29 June 2016 letter and invited the respondent to apologise for the content of the 17 June 2016 letter and the 29 June 2016 letter.  However, the respondent did not apologise in relation to either of those letters.

The First Information Summons and the First Document Summons

1. By letter dated 4 January 2017, the Committee requested that the respondent provide submissions to the Committee by 8 February 2017 in relation to the conduct the subject of the WorkCover Complaint.

2. By summons dated 4 January 2017, and served on the respondent by email on or about that date pursuant to s 520(1)(c) and (d) and s 520(3) of the LP Act (First Information Summons), the Law Complaints Officer (who is and was at all material times an investigator within the meaning of s 520 of the LP Act) required the respondent to provide to the Committee the following information, to be verified by statutory declaration, at or before 4 pm on 8 February 2017, in relation to each of the 2 June 2016 letter, the 17 June 2016 letter and the 29 June 2016 letter:

   (a)whether the respondent composed the wording for the letter and, if so, on what date he did so and on what date/s he made any revisions to the wording of the letter;

   (b)whether any other person was involved in composing the wording for the letter and, if so, to what extent they were involved in composing the wording of the letter, on what date/s they were involved in composing the wording of the letter and what part or parts of the letter they were involved in composing;

   (c)whether the respondent had any discussions with Client S about the content of the letter either prior to or after the letter was signed and sent to WorkCover and, if so, the nature of those discussions; and

   (d)on what date the respondent sent the letter, or caused the letter to be sent, to WorkCover.

3. By further summons also dated 4 January 2017, and served on the respondent by email on or about that date pursuant to s 520(1)(a) and (d) of the LP Act (First Document Summons), the Law Complaints Officer required the respondent to produce to the Committee, at or before 4 pm on 8 February 2017, the following documents:

   (1)the Practice's entire original file as at 1 August 2016 and all documents arising by reason of the Practice acting for Client S in respect of Client S's Claim up until 1 August 2016 (including but not limited to, relevantly (by paragraph 1(d) of the First Document Summons), all time sheets/pre-billing reports, invoices and records relating to work done and the payment of invoices); and

   (2)in respect of each of the 2 June 2016 letter, the 17 June 2016 letter and the 29 June 2016 letter:

   (a)all draft versions of the letter (in word format) including track changes and/or comments if applicable;

   (b)a complete audit trail from the computer system used to create the letter showing the history or log of all activity performed in respect of the letter, including but not limited to when the letter was first created and by whom and the date any changes were made to the letter and by whom; and

   (c)all metadata and other data available on the Practice's computer system in relation to the electronic copy of each draft version of the letter and the final version of the letter.

4. Following receipt of a letter dated 8 February 2017 from the respondent to the Committee, the Law Complaints Officer varied the time for compliance with each summons to 4 pm on 15 February 2017.

5. As a result of a further letter dated 15 February 2017 from the respondent to the Committee, the Law Complaints Officer further varied the time for compliance with each summons to 4 pm on 28 February 2017.

6. The respondent failed to comply with either the First Information Summons or the First Document Summons by 4 pm on 28 February 2017. 

7. By letter dated 28 February 2017, the respondent asked the Committee for 'an extension in relation to the submissions only to close of business on 6 March 2017'.

8. By further letter dated 28 February 2017 to the Committee:

   (a)with respect to the First Document Summons, the respondent informed the Committee that he would not provide all of the Practice's entire original file as required by the summons, but would provide his entire original file up to 29 June 2016, and that he did not know what an 'audit trail' is or what 'meta data' is for the purposes of paragraph 2 of the summons, but that he would provide copies of the 'relevant' documents by 3 March 2017; and

   (b)with respect to the First Information Summons, the respondent said:

   … the information sought in that Summons is irrelevant to the complaint. As you are no doubt aware, s 584 of the [LP Act] in these circumstances deems me responsible from a professional point of view for all the work done on my files by employees under my supervision. In light of that provision, I do not understand how, with respect to clauses 1a) to d) of this Summons, those clauses are relevant (given that I am ultimately responsible for the contents of any letters on my files that leave this office) or cannot otherwise be determined from the original file itself. In these circumstances, at this stage, I believe s 520(3) of the [LP Act] only requires a statutory declaration to be provided in relation to information that is relevant to a complaint. In my respectful view none of the matters set out in that Summons are relevant.

9. By letter dated 1 March 2017, the Committee replied to the respondent and informed him, relevantly, that the First Information Summons was issued in relation to the specific items of correspondence which were the substance of the WorkCover Complaint, and that the investigation of whether the respondent's conduct in preparing and sending the correspondence amounts to unsatisfactory professional conduct or professional misconduct 'requires an assessment of the circumstances in which you composed the wording for each item of correspondence, whether you received any assistance in preparing the correspondence or supervised any other legal practitioner in the preparation of the correspondence and the instructions received from your client in relation to the preparation of the correspondence.  The information requested in the [First] Information Summons is directed to a consideration of these issues and is reasonably related to the proper subject matter of the Committee's investigation'.

10. By letter dated 3 March 2017 (received by the Committee on 7 March 2017), the respondent, relevantly, said that:

    (a)copies of 'the relevant documents' referred to in the First Document Summons would be provided to the Committee by 4 pm on 7 March 2017;

    (b)in response to the First Information Summons, he would either provide the Committee with a statutory declaration in response or an application to set aside the First Information Summons by 4 pm on 10 March 2017; and

    (c)confirmed that his submissions pursuant to s 414 of the LP Act would be provided by 4 pm on 7 March 2017.

11. The respondent did not provide any documents in response to, or otherwise purport to comply with, the First Document Summons by 4 pm on 7 March 2017 or otherwise.

1. Further, the respondent did not provide any submissions to the Committee, by 4 pm on 7 March 2017 or otherwise.

2. By letter dated 8 March 2017, the respondent:

   (a)provided to the Committee what he described as a bundle of 'copied relevant documents' from the Practice's file in response to the First Document Summons, but did not provide the original client file as required by the First Document Summons; and

   (b)advised that his submissions would be provided to the Committee by 4 pm on 13 March 2017.

3. The respondent did not provide any statutory declaration in response to, or otherwise purport to comply with, the First Information Summons, nor did he apply to have the First Information Summons set aside by 4 pm on 10 March 2017 or otherwise.

4. The respondent did not provide any submissions to the Committee by 4 pm on 13 March 2017 or otherwise.

5. By letter dated 14 March 2017, sent by the respondent 'by way of update' to the Committee, the respondent:

   (a)said that his office administrator was still arranging for the Practice's IT contractor to attend the office and that 'we hope' to have the contractor in the office 'some time this week';

   (b)alleged that he had been unable to 'establish the process' for setting aside the Information Summons and he would provide the statutory declaration 'as requested', but it would include his 'objections on relevance ... where appropriate'; and

   (c)stated that his submissions would be provided to the Committee by no later than 4 pm on 20 March 2017 and stated 'I undertake to meet that deadline' (First Undertaking).

6. The respondent did not provide any submissions to the Committee by 4 pm or otherwise on 20 March 2017 in accordance with the First Undertaking.

7. By letter dated 20 March 2017 (received by the Committee on 27 March 2017), the respondent informed the Committee, in effect, that he did not have the documents referred to in paragraph 2 of the First Document Summons.

8. By letter dated 12 April 2017, the respondent:

   (a)asserted that he had previously informed the Committee that he would provide a response to the First Information Summons by statutory declaration on two conditions, being:

   (i)receiving confirmation that there is no process to apply to set aside the summons as far as compelling him to provide (so-called) irrelevant information is concerned; and

   (ii)that he be permitted to include his objections on the grounds of relevance in that statutory declaration;

   (b)stated that his statutory declaration would be provided to the Committee by 4 pm on 13 April 2017;

   (c)asserted that he would be completing the statutory declaration in response to improper pressure applied by the Committee; and

   (d)asserted that he had written to the Committee by letter dated 29 March 2017 addressing the content of a letter from the Committee dated 29 March 2017.

9. At the time it received the respondent's letter dated 12 April 2017, the Committee had not received a letter from the respondent dated 29 March 2017 on this matter, and the Committee requested by email of 12 April 2017 that he provide it.

10. The respondent did not respond to the Committee's email of 12 April 2017.

11. By letter dated 29 March 2017 (received by the Committee by post on 18 April 2017), the respondent, relevantly:

    (a)asserted that he had complied with the First Document Summons because, relevantly, the only power the Committee could lawfully enforce by way of a summons is the power to compel 'relevant documents';

    (b)stated that he had indicated he would, unless a process to set aside could be identified, complete a statutory declaration in response to the First Information Summons, but would include in the statutory declaration his objections on the grounds of relevance, as required; and

    (c)stated that his submissions would be lodged with the Committee by 4 pm on 10 April 2017 (which date had already passed by the time the Committee received this letter).

12. By letter dated 13 April 2017 (received by the Committee on 18 April 2017), the respondent provided:

    (a)a statutory declaration of the respondent dated 13 April 2017 (Statutory Declaration) which the respondent said was made in response to the First Information Summons; and

    (b)his submissions dated 12 April 2017 pursuant to s 414 of the LP Act.

13. In the Statutory Declaration the respondent deposed, relevantly, as follows:

    (a)He did not believe that 'most of the matters set out in the [First Information] Summons are relevant to the [WorkCover Complaint]' and he was responding to the First Information Summons 'even though I believe much of it to be irrelevant to the [WorkCover Complaint], as a result of pressure placed on me by the [Committee] to provide a statutory declaration or otherwise face further professional pressure on the basis that I have to this point, failed to respond to the [First Information] Summons fully and accurately and in a timely manner'.

    (b)In his response to paragraph 1(a) of the First Information Summons the respondent said 'I object to providing the information requested on the ground of relevance.  I can confirm however that I am responsible from a professional point of view for all correspondence that is prepared and sent on my files'.

    (c)In his response to paragraph 1(b) of the First Information Summons the respondent said 'I object to providing the information requested on the ground of relevance.  I can confirm however that I am responsible from a professional point of view for all correspondence that is prepared and sent on my files'.

    (d)In his response to paragraph 1(c) of the First Information Summons the respondent said 'I object to providing the information requested on the ground of relevance. I can confirm however that I am responsible from a professional point of view for the conduct of my files.  I have also previously provided the [Committee] with copies of all relevant documents from our file in relation to [Client S], including copies of any file notes of discussions we had with [Client S] in relation to WorkCover's failure to accept his WorkCover application'.

    (e)In his response to paragraph 1(d) of the First Information Summons the respondent said 'I object to providing the information requested on the ground of relevance.  I can confirm however that I am responsible from a professional point of view for all correspondence that is prepared and sent on my files.  I can only assume the three letters were posted in accordance with our normal office procedure, which means they should have been despatched on the date that is on the letter, or the day following'.

The Second Information Summons and the Second Document Summons

1. On or about 14 April 2016, the Practice lodged an application (Client F's Application) on behalf of a client (Client F) under the Workers' Compensation Act. The application sought weekly compensation payments. The application on behalf of Client F was accepted by WorkCover for conciliation. Mr R, a legal practitioner employed by a Perth law firm, acted on behalf of RiskCover. The respondent acted on behalf of Client F.

2. Mr R made a complaint to the Committee about the respondent's conduct in relation to the dispute concerning Client F (R's Complaint).

3. By letter dated 30 September 2016, a legal officer employed by the Committee wrote to the respondent in connection with the matters the subject of R's Complaint.

4. On or about 14 December 2016, the Committee commenced an investigation into R's Complaint.

5. By letter dated 17 January 2017, the Committee requested that the respondent provide submissions to the Committee about the conduct the subject of R's Complaint by 8 February 2017.

6. By summons dated 17 January 2017, and served on the respondent by email on or about that date pursuant to s 520(1)(c) and (d) and s 520(3) of the LP Act (Second Information Summons), the Law Complaints Officer required the respondent to provide to the Committee the following information to be verified by way of statutory declaration, at or before 4 pm on 8 February 2017, in relation to each of a 22 March 2016 letter, a 11 May 2016 letter, a 12 May 2016 letter, a 7 September 2016 letter, a 23 September 2016 letter, a 6 October 2016 letter and a 13 October 2016 letter, which had been sent by the Practice in connection with Client F's Application or R's Complaint:

   (a)whether the respondent composed the wording for the letter and, if so, on what date he did so and on what date/s he made any revisions to the wording of the letter;

   (b)whether any other person was involved in composing the wording for the letter and, if so, to what extent they were involved in composing the wording of the letter, on what date/s they were involved in composing the wording of the letter and what part or parts of the letter they were involved in composing;

   (c)whether the respondent had any discussions with Client F about the content of the letter either prior to or after the letter was signed and sent to WorkCover and, if so, the nature of those discussions; and

   (d)on what date the respondent sent the letter, or caused the letter to be sent, to WorkCover.

7. By further summons also dated 17 January 2017, and served on the respondent by email on or about that date pursuant to s 520(1)(a) and (d) of the LP Act (Second Document Summons), the Law Complaints Officer required the respondent to produce to the Committee, at or before 4 pm on 8 February 2017, the following documents:

   (1)the Practice's entire original file as at 30 October 2016 and all documents arising by reason of the Practice acting for Client F in respect of Client F's Claim up until 30 October 2016 (including but not limited to, relevantly (by paragraph 1(d) of the Second Document Summons), all time sheets/pre-billing reports, invoices and records relating to work done and the payment of invoices); and

   (2)in respect of each of the 22 March 2016 letter, the 11 May 2016 letter, the 12 May 2016 letter, the 7 September 2016 letter, the 23 September 2016 letter, the 6 October 2016 letter and the 13 October 2016 letter:

   (a)all draft versions of the letter (in word format) including track changes and/or comments if applicable;

   (b)a complete audit trail from the computer system used to create the letter showing the history or log of all activity performed in respect of the letter, including but not limited to when the letter was first created and by whom and the date any changes were made to the letter and by whom; and

   (c)all metadata and other data available on the Practice's computer system in relation to the electronic copy of each draft version of the letter and the final version of the letter.

8. Following receipt of a letter dated 8 February 2017 from the respondent to the Committee, the Law Complaints Officer varied the time for compliance with each summons to 4 pm on 15 February 2017.

9. As a result of a further letter dated 15 February 2017 from the respondent to the Committee, the Law Complaints Officer further varied the time for compliance with each summons to 4 pm on 28 February 2017.

10. The respondent failed to comply with either the Second Information Summons or the Second Document Summons by 4 pm on 28 February 2017.

11. By letter dated 28 February 2017, the respondent asked the Committee for a further extension of time to provide his submissions 'only to close of business on 6 March 2017'.

12. The respondent wrote a further letter dated 28 February 2017 to the Committee in which he made the following assertions:

    (1)With respect to the Second Document Summons, the respondent informed the Committee that he would not provide all of the Practice's entire original file as required by the summons, but would provide his entire original file up to 7 September 2016, and that he did not know what an 'audit trail' is or what 'meta data' was for the purposes of paragraph 2 of the summons, but that he would provide copies of the 'relevant' documents by 3 March 2017.

    (2)With respect to the Second Information Summons, the respondent asserted that:

    … the information sought in that summons is irrelevant to the complaint or the Conduct Investigation. As you are no doubt aware, s 584 of the [LP Act] in these circumstances deems me as responsible from a professional point of view for all the work done by employees under my supervision. In light of that provision, I do not understand how, with respect to clauses 1a) to d) of this Summons, those clauses are relevant (given that I am ultimately responsible for the contents of any letters on my files that leave this office) or cannot otherwise be determined from the original file itself. In these circumstances, at this stage, I believe s 520(3) of the [LP Act] only requires a statutory declaration to be provided in relation to information that is relevant to a complaint. In my respectful view none of the matters set out in that Summons are relevant.

13. By letter dated 1 March 2017, the Committee responded to the respondent and informed him, relevantly, that the Second Information Summons was issued in relation to the specific items of correspondence which formed the substance of R's Complaint, and that the investigation of whether the respondent's conduct in preparing and sending the correspondence amounts to unsatisfactory professional conduct or professional misconduct 'requires an assessment of the circumstances in which you composed the wording for each item of correspondence, whether you received any assistance in preparing the correspondence or supervised any other legal practitioner in the preparation of the correspondence and the instructions received from your client in relation to the preparation of the correspondence.  The information requested in the Second Information Summons is directed to a consideration of these issues and is reasonably related to the proper subject matter of the Committee's investigation'.

14. By letter dated 3 March 2017 (received by the Committee on 7 March 2017), the respondent, relevantly, said that:

    (a)copies of 'the relevant documents' referred to in the Second Document Summons would be provided to the Committee by 4 pm on 7 March 2017;

    (b)in response to the Second Information Summons, he would either provide the Committee with a statutory declaration in response or an application to set aside the Second Information Summons by 4 pm on 10 March 2017; and

    (c)confirmed that his submissions pursuant to s 414 of the Act would be provided by 4 pm on 7 March 2017.

15. The respondent did not provide any documents in response to, or otherwise purport to comply with the Second Document Summons by 4 pm on 7 March 2017 or otherwise.

16. Further, the respondent did not provide any submissions to the Committee by 4 pm on 7 March 2017 or otherwise.

17. By letter dated 8 March 2017, the respondent:

    (a)provided to the Committee what he described as a bundle of 'copied relevant documents' from the Practice's file in response to the Second Document Summons, but did not provide the original client file as required by the Second Document Summons; and

    (b)advised that his submissions would be provided to the Committee by 4 pm on 13 March 2017.

18. The respondent did not provide any statutory declaration in response to, or otherwise purport to comply with, the Second Information Summons, nor did he apply to have the Second Information Summons set aside, by 4 pm on 10 March 2017 or otherwise.

19. The respondent did not provide any submissions to the Committee by 4 pm on 13 March 2017 or otherwise.

20. By letter dated 14 March 2017 sent as an 'update' to the Committee, the respondent:

    (a)said that his office administrator was still arranging for the Practice's IT contractor to attend the office and that 'we hope' to have the contractor in the office 'sometime this week';

    (b)alleged that he had been unable to 'establish the process' for setting aside the Second Information Summons and he would provide the statutory declaration 'as requested', but it would include his 'objections on relevance ... where appropriate'; and

    (c)stated that his submissions would be provided to the Committee by no later than 4 pm on 20 March 2017 and stated 'I undertake to meet that deadline' (Second Undertaking).

21. The respondent did not provide any submissions to the Committee by 4 pm or otherwise on 20 March 2017 in accordance with the Second Undertaking.

22. By letter dated 20 March 2017 (received by the Committee on 27 March 2017), the respondent informed the Committee, in effect, that he did not have the documents referred to in paragraph 2 of the Second Document Summons.

23. By letter dated 12 April 2017, the respondent:

    (a)asserted that he had previously advised the Committee he would provide a response to the Second Information Summons by statutory declaration on two conditions, being:

    (i)receiving confirmation that there is no process to apply to set aside the summons as far as compelling him to provide (so-called) irrelevant information is concerned; and

    (ii)that he be permitted to include his objections on the grounds of relevance in that statutory declaration;

    (b)stated that his statutory declaration would be provided to the Committee by 4 pm on 13 April 2017;

    (c)asserted that he would be completing the statutory declaration in response to improper pressure applied by the Committee;

    (d)asserted that he had written to the Committee by letter dated 29 March 2017 addressing the content of a letter from the Committee dated 29 March 2017.

24. At the time it received the respondent's letter dated 12 April 2017, the Committee had not received a letter from the respondent dated 29 March 2017 on this matter, and the Committee requested by email of 12 April 2017 that he provide it.

25. The respondent did not respond to the Committee's email of 12 April 2017.

26. By letter dated 29 March 2017 (received by the Committee by post on 18 April 2017), the respondent, relevantly:

    (a)asserted that he had complied with the Second Document Summons because, relevantly, the only power the Committee could lawfully enforce by way of a summons is the power to compel 'relevant documents';

    (b)stated that he had indicated he would, unless a process to set aside could be identified, complete a statutory declaration in response to the Second Information Summons, but would include in the statutory declaration his objections on the grounds of relevance, as required; and

    (c)stated that his submissions would be lodged with the Committee by 4 pm on 10 April 2017 (which date had already passed by the time the Committee received this letter).

27. By letter dated 13 April 2017 (received by the Committee on 18 April 2017), the respondent provided:

    (a)a statutory declaration of the respondent dated 13 April 2017 (Second Statutory Declaration) which was asserted on its face to have been made in response to the Second Information Summons (but which did not comply or purport to comply with the requirements of the Second Information Summons); and

    (b)his submissions dated 12 April 2017.

28. In the Second Statutory Declaration the respondent deposed, relevantly, that:

    (a)He did not believe that 'most of the matters set out in the Summons are relevant to [R's Complaint]' and he was (so he asserted) responding to the Second Information Summons 'even though I believe much of it to be irrelevant to [R's Complaint], as a result of pressure placed on me by the [Committee] to provide a statutory declaration or otherwise face further professional pressure on the basis that I have to this point, failed to respond to the Summons fully and accurately and in a timely manner'.

    (b)In his response to paragraph 1(a) of the Second Information Summons the respondent said 'I object to providing the information requested on the ground of relevance.  I can confirm however that I am responsible from a professional point of view for all correspondence that is prepared and sent on my files'.

    (c)In his response to paragraph 1(b) of the Second Information Summons the respondent said 'I object to providing the information requested on the ground of relevance.  I can confirm however that I am responsible from a professional point of view for all correspondence that is prepared and sent on my files'.

    (d)In his response to paragraph 1(c) of the Second Information Summons the respondent said 'I object to providing the information requested on the ground of relevance.  I can confirm however that I am responsible from a professional point of view for the conduct of my files.  I have also previously provided the [Committee] with copies of all relevant documents from our files in relation to [Client F], including copies of any relevant file notes of discussions we had with [Client F]'.

    (e)In his response to paragraph 1(d) of the Second Information Summons the respondent said 'I object to providing the information requested on the ground of relevance.  I can confirm however that I am responsible from a professional point of view for all correspondence that is prepared and sent on my files.  I can only assume the letters were posted in accordance with our normal office procedure, which means they should have been despatched on the date that is on the letter, or the day following'.

The Tribunal's reasons

1. As we have mentioned, on 12 and 13 November 2018, the Tribunal heard the Committee's application.

2. On 21 June 2019, the Tribunal found that the respondent had engaged in 'unsatisfactory professional conduct', as defined in s 402 of the LP Act, and 'professional misconduct', as defined in s 403(1) of the LP Act. The Tribunal published written reasons for decision.

3. The Tribunal's reasons in relation to the letters dated 2 June 2016, 17 June 2016 and 29 June 2016 were as follows:

   281The Committee's allegation is that the Practitioner, in the course of acting for Client S, engaged in professional misconduct by preparing and causing to be sent, alternatively by causing or permitting to be prepared and sent and for which the Practitioner has expressly accepted professional responsibility, the 2 June letter, the 17 June letter and the 29 June letter to the Director, the contents of which were intemperate, threatening, intimidating and/or discourteous and by which the Practitioner attempted to interfere with the administration of justice.

   282As we have already mentioned, Conduct Rule 6(1)(b) states that a practitioner must be honest and courteous in all dealings with persons involved in a matter. Conduct Rule 6(2)(b) states that a legal practitioner 'must not engage in conduct, in the course of providing legal services or otherwise, which … may be prejudicial to, or diminish public confidence in, the administration of justice'. Rule 16(1) of the Conduct Rules provides that a practitioner must not attempt to further a client's matter by unfair or dishonest means. Conduct Rule 4(2) provides that a breach of the Conduct Rules may constitute unsatisfactory professional conduct or professional misconduct.

   283The Tribunal has already concluded that the Practitioner prepared those letters and then caused them to be sent.  There then remains the issue of whether or not the contents of those three letters or any of them were intemperate, threatening, intimidating and/or discourteous and by which the Practitioner attempted to interfere with the due administration of justice.

   284Turning first to the 2 June letter, there is no question that in that letter the Practitioner raised the possibility of making an application to the Supreme Court for prerogative relief unless the Director reviewed her decision and accepted Client S's application.  The first question is then, was the 2 June letter discourteous to the Director or anyone else?  Further, would the letter be prejudicial to, or diminish public confidence in, the administration of justice?

   285The meaning of 'courteous' in Conduct Rule 6(1)(b) is its plain meaning, which is polite, kind, considerate, in manner or approach; Shorter Oxford Dictionary 6th ed.  We do not consider that the 2 June letter was discourteous or that it contravened Conduct Rule 6(2)(b).  It refers to making 'an application to the Supreme Court', without any speculation as to the prospects of that application's success.  It was not directed at the Director personally.  Further, we consider that it was written in legitimate pursuit of Client S's interests and that the First Threat was no more than the Practitioner putting the Director on notice as to how he might proceed against WorkCover if so instructed.

   286The Tribunal concludes that the content of the 2 June letter was not intemperate, threatening, intimidating and/or discourteous.  Further, we do not consider that the Practitioner was attempting to interfere with the due administration of justice. 

   287The 17 June letter, the Committee says, made serious allegations concerning the Director's conduct in refusing to accept Client S's application on the basis that the Director herself was or may have been actuated by malice and bias in favour of the insurer.

   288In the case of the 17 June letter, the Tribunal considers that the Practitioner had no basis for suggesting that the Director was motivated by malice towards the Practitioner's client or biased in favour of the insurer.  The Practitioner's attempts to explain that he was using the word 'malice' in somehow a technical sense does not assist him.  The tort of misfeasance in public office (we agree with the Committee that there is no tort known as 'nonfeasance in public office' and that the Practitioner meant 'misfeasance in public office'), to be established, requires the element of malice and there is no 'technical sense' of that word.  The word 'malice' should be given its ordinary meaning which is 'the desire to injure another person; active ill will or hatred; wrongful intention'; Shorter Oxford English Dictionary 6th ed.

   289The Practitioner has provided nothing to the Tribunal to substantiate an allegation of malice on the part of the Director nor has he provided any basis for the suggestion that the Director had in some way closed her mind to the interests of Client S over the interests of the insurer.  The Tribunal finds that the Practitioner had no grounds to make the Malice Allegation or the Bias Allegation.  By threatening the Director with a complaint against her personally in the 17 June letter and by reiterating that threat in the 29 June letter, the Practitioner's conduct was discourteous by accusing the Director of acting with malice or of bias and was prejudicial to the administration of justice in that the Practitioner was attempting, by making threats of legal proceedings against the Director personally, to induce the Director to accept Client S's Application.

   290The existence of a generally accepted professional standard or duty and its content are questions of fact; Dekker v Medical Board of Australia [2014] WASCA 216 (Dekker) at [72]. Such facts may be proved by the existence of relevant professional conduct rules; Dekker at [73].

   291In this case, the standard is found in the Conduct Rules.

   292The Tribunal has concluded that the 17 June letter and the 29 June letter both breached Conduct Rule 6(1)(b). The Tribunal finds that by sending those letters in breach of Conduct Rule 6(1)(b) the Practitioner's conduct, while not falling within the definition of 'professional misconduct', nonetheless fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner and is unsatisfactory professional conduct.

   293The Tribunal further finds that both of those letters breached Conduct Rule 6(2)(b) and that by sending those letters in breach of Conduct Rule 6(2)(b), the Practitioner's conduct fell substantially short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner and is professional misconduct.

4. The Tribunal's reasons in relation to the First Document Summons were as follows:

   294The Committee says that the Practitioner engaged in professional misconduct within the meaning of the LP Act by, without reasonable excuse, and for the purpose or a substantial purpose of seeking to frustrate or hinder the Committee's investigation into the WorkCover Complaint by failing to comply with the First Document Summons in contravention of s 520(5) of the LP Act or contrary to the Practitioner's obligation under s 532(3)(b) of the LP Act or both.

   295The Practitioner does not dispute that he failed to comply with the First Document Summons.  However, he takes issue with the allegation that his failure to comply with the First Document Summons was for the purpose or substantial purpose of seeking to frustrate or hinder the Committee's investigation into the WorkCover Complaint.  Instead, the Practitioner says that he considers the First Document Summons to be 'unfair and oppressive to the extent that it goes beyond what is relevant and required when regard is had to the matter under investigation'; Practitioner's Amended Reply at para 20.

   296A summons issued under Pt 15, Div 2 of the LP Act is issued by an investigator, not by a court. The power of an investigator to issue such a summons derives from s 520(1) of the LP Act and is to be exercised for the purpose of carrying out a complaint investigation in relation to an Australian lawyer; Legal Profession Complaints Committee v Lourey [2019] WASC 62 (Lourey) at [62]. In Lourey, the Court found that the proper construction of s 520 of the LP Act is that a summons issued pursuant to s 520 imposes a compulsory obligation of the same character as the former subpoena ad test or duces tecum, as the case may be, issued by a court for the attendance of a witness for examination or production of documents in a civil action. The Court went on to say at [67] that, when read in context, s 520 of the LP Act imposes a compulsory obligation and prescribes, amongst other things, the consequence for non­observance of that obligation.

   297In Lourey at [88], the Court said it was for the Committee, and not (in that case) the Court, to determine how the investigation is to be conducted.

   298While s 520(2) of the LP Act provides a regime for objection to be taken by the lawyer concerned on certain grounds, those grounds do not apply in this case. In particular, the LP Act does not provide a regime for objection to a summons on the ground of relevance. Further, the breadth of the documents sought through the summons does not of itself establish that the issue was beyond power; Lourey at [89].

   299In this case, the Tribunal considers that, by applying the following considerations, set out in Lourey at [99] ­ [113], the issue by the Committee's investigation of the First Document Summons was authorised by s 520 of the LP Act.

   300First, the Tribunal is satisfied that the First Document Summons was issued for the purpose of carrying out a complaint investigation in relation to the Practitioner, namely the investigation into the WorkCover Complaint. 

   301Second, the Committee was acting in response to the WorkCover Complaint and, under s 421(2) of the LP Act, had to investigate that complaint.

   302Third, the First Document Summons is concordant with the scope of the WorkCover Complaint investigation. The documents required by the First Document Summons are set out at [55] above. The Tribunal is satisfied that the documents to be produced relate to the Committee's investigation into the WorkCover Complaint.

   303The Tribunal accordingly finds that the Practitioner failed to comply with the First Document Summons by its due date and has therefore contravened s 520(5) of the LP Act which provides that a person must comply with a requirement of an investigator. It is unnecessary for the Tribunal to make a finding as to why the Practitioner failed to comply with the First Document Summons other than, for the purpose of s 532(3) of the LP Act, to establish whether the Practitioner had a 'reasonable excuse' for his failure. We deal with that below.

   304Section 404 of the LP Act provides that a contravention of the LP Act is capable of constituting unsatisfactory professional conduct or professional misconduct.

   305The Practitioner's failure to comply with the First Document Summons, despite the numerous extensions of time given to him to do so, demonstrates to the Tribunal the Practitioner's disregard for the Committee's investigation of the WorkCover Complaint and for his own obligations under the LP Act. The Practitioner has contravened the LP Act and the Tribunal regards this conduct as falling short by a substantial degree of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. The Tribunal finds that the Practitioner's conduct is professional misconduct.

   306The Practitioner says in the Practitioner's Amended Reply at para 20.6 that if the Tribunal finds that the Practitioner has failed to comply with the First Document Summons then pursuant to s 532(3) he had a reasonable excuse for that failure. The Practitioner says that he made every attempt to comply with the First Document Summons and that 'only relevant information to the letters subject of the complaint can be summonsed by the [Committee]'; Practitioner's Amended Reply para 20.7.

   307The Tribunal does not agree that the Practitioner had a reasonable excuse for failing to comply with the First Document Summons. It is not for the Practitioner to decide what is or is not relevant to the Committee's investigation and the fact that the Practitioner has come to his own conclusion that the First Document Summons is unreasonable is not a 'reasonable excuse'. If the Tribunal were to find otherwise, it would be a simple enough matter for any practitioner on the same basis to disregard a summons issued by the Committee under s 520 of the LP Act.

5. The Tribunal's reasons in relation to the First Information Summons were as follows:

   308The Committee says that the Practitioner engaged in professional misconduct within the meaning of the LP Act by, without reasonable excuse and for the purpose or a substantial purpose of seeking to frustrate or hinder the Committee's investigation into the WorkCover Complaint by failing to comply with the First Information Summons in contravention of s 520(5) of the LP Act or contrary to the Practitioner's obligation under s 532(3)(b) of the LP Act or both.

   309The Practitioner does not dispute that he failed to comply with the First Information Summons.  However, he again takes issue with the allegation that his failure to comply with the First Information Summons was for the purpose or substantial purpose of seeking to frustrate or hinder the Committee's investigation into the Complaint.  Instead, the Practitioner says that the information sought by the Committee by the First Information Summons was not relevant or required in respect of the matter under investigation; Practitioner's Amended Reply at para 19.

   310The First Information Summons is also a summons issued under s 520 of the LP Act and what we have said about the First Document Summons earlier in these reasons is equally applicable to the First Information Summons.

   311Again, the Tribunal is satisfied that the First Information Summons was issued for the purpose of carrying out a complaint investigation in relation to the Practitioner, namely the investigation into the WorkCover Complaint.

   312The Committee was acting in response to the WorkCover Complaint and, under s 421(2) of the LP Act, had to investigate that complaint.

   313Also, the First Information Summons is concordant with the scope of the WorkCover Complaint investigation.  The information required by the First Information Summons, in the Tribunal's opinion, relates to the Committee's investigation.

   314The Tribunal accordingly finds that the Practitioner failed to comply with the First Information Summons in full by its due date and has therefore contravened s 520(5) of the LP Act. Again, it is unnecessary for the Tribunal to consider why the Practitioner failed to comply with the First Information Summons, other than, again, to establish whether the Practitioner had a 'reasonable excuse' for his failure. Again, we find that he did not have a reasonable excuse.

   315As we have said previously, s 404 of the LP Act provides that a contravention of the LP Act is capable of constituting unsatisfactory professional conduct or professional misconduct.

   316The Practitioner's continuous failure to comply with the First Information Summons, despite the numerous extensions of time given to him to do so, demonstrates to the Tribunal the Practitioner's disregard for the Committee's investigation of the WorkCover Complaint and his own obligations under the LP Act. The Practitioner has contravened the LP Act and the Tribunal regards this conduct as conduct falling short by a substantial degree of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. The Tribunal finds that the Practitioner has engaged in professional misconduct.

6. The Tribunal's reasons in relation to the Second Document Summons were as follows:

   338The Committee says that the Practitioner engaged in professional misconduct within the meaning of the LP Act by, without reasonable excuse, and for the purpose or a substantial purpose of seeking to frustrate or hinder the Committee's investigation into the Complaint by the Director by failing to comply with the Second Document Summons in contravention of the Practitioner's obligation under s 532(3)(b) of the LP Act.

   339The Practitioner does not dispute that he failed to comply with the Second Document Summons.  However, he takes issue with the allegation that his failure to comply was for the purpose or substantial purpose of seeking to frustrate or hinder the Committee's investigation into the Complaint.  Instead, the Practitioner says that the Second Document Summons was 'unfair and oppressive to the extent that it goes beyond what is relevant and required when regard is had to the matter under investigation'; Practitioner's Amended Reply at para 30.

   340Irrespective of the reasons why the Practitioner did not comply with the Second Document Summons, s 520(5) of the LP Act requires a practitioner to comply with any summons issued by the Committee. It is unnecessary to repeat what we have said in connection with the First Document Summons, and what we have said applies equally to the Second Document Summons. The Tribunal considers that the Practitioner had no reasonable excuse to not comply with the Second Document Summons and the Practitioner's conduct constitutes professional misconduct.

7. The Tribunal's reasons in relation to the Second Information Summons were as follows:

   341The Committee says that the Practitioner engaged in professional misconduct within the meaning of the LP Act by, without reasonable excuse, and for the purpose or a substantial purpose of seeking to frustrate or hinder the Committee's investigation into the Complaint by the Director by failing to comply with the Second Information Summons in contravention of the Practitioner's obligation under s 532(3)(b) of the LP Act.

   342The Practitioner does not dispute that he failed to comply with the Second Information Summons.  However, he takes issue with the allegation that his failure to comply was for the purpose or substantial purpose of seeking to frustrate or hinder the Committee's investigation into R's Complaint.  Instead, the Practitioner says that the Second Information Summons was 'unfair and oppressive to the extent that it goes beyond what is relevant and required when regard is had to the matter under investigation'; Practitioner's Amended Reply at para 30.

   343Irrespective of the reasons why the Practitioner did not comply with the Second Information Summons, s 520(5) of the LP Act requires a practitioner to comply with any summons issued by the Committee. Again, it is unnecessary to repeat what we have said in connection with the First Information Summons, and what we have said applies equally to the Second Information Summons. The Tribunal considers that the Practitioner had no reasonable excuse to do so and that the Practitioner's conduct constitutes professional misconduct.

The Tribunal's orders

1. On 21 June 2019, the Tribunal made orders as follows:

   The Tribunal finds that [the respondent] behaved in a way that constitutes unsatisfactory professional conduct and professional misconduct as defined in s 402 and s 403(1) respectively of the [LP Act] as follows:

   1.The [respondent] engaged in unsatisfactory professional conduct in writing and causing to be sent a letter dated 17 June 2016 to the Director of WorkCover WA which breached rule 6(1)(b) of the Legal Profession Conduct Rules 2010 (WA) (Conduct Rules).

   2. The [respondent] engaged in professional misconduct in writing and causing to be sent a letter dated 17 June 2016 to the Director of WorkCover WA which breached Conduct Rule 6(2)(b).

   3.The [respondent] engaged in unsatisfactory professional conduct in preparing and causing to be sent a letter dated 29 June 2016 to the Director of WorkCover WA which breached Conduct Rule 6(1)(b).

   4.The [respondent] engaged in professional misconduct in preparing and causing to be sent a letter dated 29 June 2016 to the Director of WorkCover WA which breached Conduct Rule 6(2)(b).

   5.The [respondent] engaged in professional misconduct in failing to comply with a document summons issued by the Law Complaints Officer on 4 January 2017 where he was required to produce documents by a certain date.

   6. The [respondent] engaged in professional misconduct in failing to comply with an information summons issued by the Law Complaints Officer on 4 January 2017 where he was required to provide information by way of statutory declaration by a certain date.

   7. The [respondent] engaged in professional misconduct in failing to adhere to his undertaking given in a letter dated 14 March 2017 to the applicant to provide his submissions in relation to his conduct.

   8. The [respondent] engaged in unsatisfactory professional conduct in preparing and causing to be sent a letter dated 22 March 2016 to the Insurance Commission of Western Australia in proceedings where he acted in a claim lodged under the WC Act which breached Conduct Rule 6(1)(b).

   9. The [respondent] engaged in professional misconduct in preparing and causing to be sent a letter dated 12 May 2016 to another practitioner which breached Conduct Rule 6(2)(b).

   10. The [respondent] engaged in professional misconduct in preparing and causing to be sent a letter dated 7 September 2016 to another practitioner which breached Conduct Rule 6(2)(b).

   11.The [respondent] engaged in professional misconduct in preparing and causing to be sent letters dated 6 October 2016 and 13 October 2016 to another practitioner, which breached Conduct Rule 6(2)(b).

   12. The [respondent] engaged in professional misconduct in failing to comply with a document summons issued by the applicant's Law Complaints Officer on 17 January 2017 where he was required to produce documents by a certain date.

   13. The [respondent] engaged in professional misconduct in failing to comply with an information summons issued by the applicant's Law Complaints Officer on 17 January 2017 where he was required to provide information by way of statutory declaration by a certain date.

   14. The [respondent] engaged in professional misconduct in failing to adhere to his undertaking in a letter dated 14 March 2017 to the applicant to provide his submissions in relation to his conduct.

   15. The [respondent] engaged in unsatisfactory professional conduct in preparing and causing to be sent a letter dated 6 January 2017 to a doctor in proceedings concerning the [respondent]'s client which breached Conduct Rule 6(1)(b).

   16.The [respondent] engaged in professional misconduct in preparing and causing to be sent a letter dated 6 January 2017 to a doctor in proceedings concerning the [respondent]'s client which breached Conduct Rule 6(2)(b) and Conduct Rule 6(2)(c).

   17. The application is otherwise dismissed.

   18. The parties will make submissions to the Tribunal on penalty and costs.

   Orders 1 to 6, 12, 13 and 17 are the subject of the Committee's application for leave to appeal.

The relevant framework under the LP Act

1. The LP Act is an Act to provide for the regulation of legal practice in Western Australia, to facilitate the regulation of legal practice on a national basis and for other related purposes.

2. Part 13 of the LP Act is headed 'Complaints and discipline' and comprises s 401 to s 469.

3. Section 401 states that the purposes of pt 13 are as follows:

   (a)to provide for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;

   (b)to promote and enforce the professional standards, competence and honesty of the legal profession; and

   (c)to provide a means of redress for complaints about lawyers.

4. Section 402 provides that, for the purposes of the LP Act:

   unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

5. Section 403(1) provides that, for the purposes of the LP Act:

   professional misconduct includes ‑

   (a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

   (b)conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

6. By s 403(2), 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 s 403(1), regard may be had to the 'suitability matters' (as defined in s 8 of the LP Act) that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.

7. By s 405(b), pt 13 applies to an Australian legal practitioner in respect of conduct to which pt 13 applies, and so applies whether or not the practitioner holds a local practising certificate.

8. The Committee was established under s 555 of the LP Act. The functions of the Committee include supervising the conduct of legal practitioners; inquiring into any conduct on the part of a legal practitioner or matters relating to legal practice for the purpose of determining whether it may constitute unsatisfactory professional conduct or professional misconduct; and, if the Committee considers it appropriate to do so, to institute professional disciplinary proceedings against a legal practitioner in the Tribunal. See s 557 of the LP Act. If the Committee determines that a matter concerning the conduct of an Australian legal practitioner should be heard by the Tribunal, the Committee is empowered by s 428(1) to refer the matter to the Tribunal.

9. By s 431, it is the duty of the Committee to deal with complaints as efficiently and expeditiously as is practicable.

10. By s 438(1), the Tribunal has jurisdiction to make a finding that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct.

11. By s 438(2), if, after it has completed a hearing in relation to a referral under pt 13 in respect of an Australian legal practitioner, the Tribunal is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may:

    (a)make and transmit a report on the finding to the Supreme Court (full bench) (s 438(2)(a)); or

    (b)make any one or more of the orders specified in s 439, s 440 and s 441 (s 438(2)(b)).

12. It is unnecessary to refer to s 439 or s 440.

13. By s 441, the Tribunal may, under s 438(2)(b), make any one or more of the following orders:

    (a)an order that the practitioner pay a fine to the Board of a specified amount not exceeding $25 000;

    (b)an order that the practitioner undertake and complete a specified course of further legal education;

    (c)a compensation order;

    (d)an order that the complainant pay the amount of legal costs in dispute or that the amount of legal costs be reduced by a specified amount (not exceeding the amount in dispute);

    (e)an order that the practitioner provide specified legal services to the complainant either free of charge or at a specified cost;

    (f)an order that the practitioner undertake a specified period of practice under specified supervision;

    (g)an order that the practitioner do or refrain from doing something in connection with the practice of law;

    (h)an order that the practitioner's practice, or the financial affairs of the practitioner or of the practitioner's practice, be conducted for a specified period in a specified way or subject to specified conditions;

    (i)an order that the practitioner's practice be subject to periodic inspection for a specified period;

    (j)an order that the practitioner undergo counselling or medical treatment or act in accordance with medical advice given to the practitioner;

    (k)an order that the practitioner use the services of an accountant or other financial specialist in connection with the practitioner's practice;

    (l)an order that the practitioner seek advice in relation to the management of the practitioner's practice from a specified person;

    (m)an order that the practitioner not apply for a local practising certificate before the end of a specified period.

14. Section 443 empowers the Tribunal to make interlocutory and interim orders as follows:

    (1)The State Administrative Tribunal may make interlocutory or interim orders as it thinks fit before making its final decision about a complaint against an Australian legal practitioner.

    (2)Without limiting subsection (1), orders of the kind referred to in sections 439, 440 and 441 may be made as interlocutory or interim orders.

15. The following provisions of s 444 apply where the Tribunal under s 438(2)(a) makes and transmits a report in respect of an Australian legal practitioner to the Supreme Court (full bench):

    (1)If the State Administrative Tribunal under section 438(2)(a) makes and transmits a report in respect of an Australian legal practitioner to the Supreme Court (full bench), the report is to be taken to be conclusive as to all facts and findings mentioned or contained in the report.

    (2)The Supreme Court (full bench) may, upon motion and upon reading the report, and without any further evidence do either or both of the following -

    (a)make any order that the State Administrative Tribunal may make under sections 439, 440 and 441;

    (b)order the removal from the roll of the name of an Australian legal practitioner who is a local lawyer.

16. Part 15 of the LP Act is headed 'Provisions relating to investigations' and comprises s 517 to s 533.

17. Section 517(1) provides that in pt 15 'investigator' means, relevantly, the Law Complaints Officer or a person nominated by the Law Complaints Officer.

18. Section 520(1) 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.

19. By s 520(3), relevantly, an investigator may require that information required to be given under s 520(1) be verified on oath or affirmation or by statutory declaration.

20. Section 532(3) provides, relevantly, that an Australian lawyer who is subject to a requirement under s 520 must not, without reasonable excuse, fail to comply with the requirement.

The relevant provisions of the Legal Profession Conduct Rules 2010 (WA)

1. Rule 6(1)(b) of the Legal Profession Conduct Rules 2010 (WA) (the Conduct Rules) provides that a legal practitioner must 'be honest and courteous in all dealings with clients, other practitioners and other persons involved in a matter where the practitioner acts for a client'. The term 'matter' is defined in r 3, but it is unnecessary to set out the definition.

2. Rule 6(2)(b) provides that a practitioner must not engage in conduct, in the course of providing legal services or otherwise, which 'may be prejudicial to, or diminish public confidence in, the administration of justice'.

3. Rule 6(2)(c) provides that a practitioner must not engage in conduct, in the course of providing legal services or otherwise, which 'may bring the profession into disrepute'.

The relevant framework under the SAT Act

1. The proceedings between the Committee and the respondent came within the Tribunal's original jurisdiction.

2. In s 3(1) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) the term 'enabling Act' is defined to mean, relevantly, another Act, or a portion of another Act, under which jurisdiction is conferred on the Tribunal. The LP Act is an enabling Act as defined.

3. In s 3(1) the term 'decision' of the Tribunal is defined to include an order, direction, or determination of the Tribunal.

4. Section 9 of the SAT Act specifies the main objectives of the Tribunal, as follows:

   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.

5. By s 16(1) of the SAT Act, in exercising its original jurisdiction the Tribunal is to deal with the matter in accordance with the SAT Act and the enabling Act (that is, in the present case, the LP Act). By s 16(2), the enabling Act may modify the operation of the SAT Act in relation to a matter that comes within the Tribunal's original jurisdiction.

6. Section 32(1) of the SAT Act provides that the Tribunal is bound by the rules of natural justice except to the extent that the SAT Act or the enabling Act authorises, whether expressly or by implication, a departure from those rules.

7. By s 32(2) of the SAT Act, the Evidence Act 1906 (WA) does not apply to the Tribunal's proceedings and the Tribunal:

   (a)is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures or the regulations or rules make them apply; and

   (b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

8. Section 32(6)(c)(iii) of the SAT Act provides that the Tribunal is to take measures that are reasonably practicable to ensure that the parties have the opportunity in the proceeding 'to be heard or otherwise have their submissions considered'.

9. Section 51A(1)(a) of the SAT Act provides that the Tribunal may direct that any aspect of any proceedings be heard and determined separately.

10. Section 74 of the SAT Act provides that a decision of the Tribunal must be given in writing and authenticated in accordance with the rules if:

    (a)the decision is a final decision; or

    (b)the Tribunal reserved the decision; or

    (c)the rules state that the decision has to be given in writing; or

    (d)a party requests that the decision be given in writing.

11. Rule 19 of the State Administrative Tribunal Rules 2004 (WA) specifies the manner in which a decision of the Tribunal is authenticated for the purposes of s 74 of the SAT Act.

12. Section 82(1) of the SAT Act provides, relevantly, that a decision of the Tribunal comes into effect immediately after it is given, or at such later time as is specified in it.

13. Section 105 of the SAT Act is concerned with appeals from the Tribunal's decisions. Section 105 provides, relevantly:

    (1)A party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal.

    (2)The appeal can only be brought on a question of law.

    …

    (9)The court dealing with the appeal may -

    (a)affirm, vary, or set aside the decision of the Tribunal; or

    (b)make any decision that the Tribunal could have made in the proceeding; or

    (c)send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate,

    and, in any case, may make any order the court considers appropriate.

    (10)If the court sends the matter back to the Tribunal under subsection (9)(c), it is to give directions as to whether or not the Tribunal reconsidering the matter is to be constituted by the member or members who made the original decision.

    …

    (13)Despite subsection (2), if the Tribunal's decision -

    (a)is made under a relevant Act or in a proceeding for the review of a decision made under a relevant Act; and

    (b)has the effect of depriving a person of the person's capacity to lawfully pursue a vocation,

    an appeal under this section may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact.

    (14)In subsection (13) -

    relevant Act means -

    (a)an Act specified in Schedule 1, if it is an enabling Act; or

    (b)an enabling Act prescribed by the regulations for the purposes of subsection (13).

14. As we have mentioned, the LP Act is an enabling Act. At the material time, the LP Act was specified in Sch 1 of the SAT Act. The LP Act is therefore a 'relevant Act' as defined in s 105(14) of the SAT Act.

The decisions of the Tribunal challenged in this appeal

1. As we have mentioned:

   (a)section 105(1) of the SAT Act confers a right of appeal, subject to leave being given, from a 'decision' of the Tribunal; and

   (b)section 3(1) of the SAT Act defines the term 'decision' to include 'an order, direction, or determination of the Tribunal'.

2. In the present case, the 'decisions' of the Tribunal in respect of which the Committee applies for leave to appeal comprise orders 1 to 6, 12, 13 and 17 of the orders made by the Tribunal on 21 June 2019.

The Committee's right of appeal with leave

1. Section 105(2) of the SAT Act provides that an appeal with leave under s 105(1) can only be brought on a question of law.

2. The apparent intention of Parliament, in enacting s 105(13), was to expand the scope of an appeal with leave under s 105(1) to include grounds of appeal involving questions of fact or questions of mixed law and fact where the Tribunal's decision has the legal effect of significantly interfering with a person's capacity to practise a profession or pursue a vocation for which he or she is otherwise qualified with, no doubt, serious consequences for his or her livelihood and reputation in the community. See Paridis v Settlement Agents Supervisory Board.[1]

   [1] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [49] (Buss JA; Wheeler & Pullin JJA agreeing).

3. By virtue of s 105(13), a person who has been deprived, as a result of the Tribunal's decision, of the capacity lawfully to pursue a vocation may appeal with leave on any ground (and not merely on a question of law) against the Tribunal's decision to find the person guilty of disciplinary offences, and also against the Tribunal's decision on penalty. See Paridis [50].

4. Section 105(13)(b) refers to the 'effect' of the Tribunal's decision. The provision is concerned with the legal, as distinct from the practical, effect of the decision. If the Tribunal decides to disqualify or suspend a person from practising his or her profession or other vocation, the legal effect of the decision will be to deprive that person of his or her 'capacity to lawfully pursue a vocation', within s 105(13)(b). It is not necessary, for s 105(13)(b) to apply, that the deprivation be permanent or indefinite. See Paridis [48].

5. Section 105(13) applies solely to an appeal with leave brought by the person who has been deprived of the capacity lawfully to pursue a vocation, and not to an appeal with leave brought by the Committee. See Paridis [51].

6. Any appeal with leave by the Committee under s 105(1) can only be brought on a question of law. See Paridis [52].

7. Consequently, the Committee's appeal in relation to the Tribunal's orders 1 to 6, 12, 13 and 17 can only be brought on a question or questions of law.

8. A number of propositions may be stated about the jurisdiction and powers of this court under s 105 in relation to an 'appeal', with leave, 'on a question of law'.

9. Section 105(1) read with s 105(2) confers jurisdiction on this court to examine for legal error what has been done in the Tribunal. Despite the description of the proceedings in this court as an 'appeal', s 105(1) read with s 105(2) confers original not appellate jurisdiction. The proceedings are in the nature of judicial review. They are not an 'appeal' by way of rehearing. Where a statute confers what is described as an 'appeal' from an administrative decision, and the 'appellate' court's jurisdiction is enlivened, it is necessary to identify the nature of the jurisdiction and the duties and powers of the 'appellate' court. See Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic);[2] Osland v Secretary, Department of Justice (No 2);[3] Kostas v HIA Insurance Services Pty Ltd;[4] Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (NSW).[5]

   [2] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72 [15] (Gaudron, Gummow, Hayne & Callinan JJ).

   [3] Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [18] (French CJ, Gummow & Bell JJ).

   [4] Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 [27] (French CJ).

   [5] Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (NSW) [2011] HCA 41; (2011) 245 CLR 446 [5] (French CJ, Gummow, Crennan, Kiefel & Bell JJ).

10. This court's jurisdiction under s 105(1) is, by s 105(2), confined to an 'appeal' 'on a question of law'. Section 105(9), which confers powers on this court in aid of the exercise of its jurisdiction, does not enlarge that jurisdiction. See Osland [19]. Section 105 does not qualify or circumscribe the nature or character of the questions of law on which an 'appeal' may lie.

11. A question of law, for the purposes of s 105(2), is not to be distilled from the ground or grounds of appeal. See Osland [21]. The existence of a question of law is both a qualifying condition to the invoking of this court's jurisdiction under s 105(1) read with s 105(2) and the subject matter of the 'appeal' itself. See TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation;[6] Osland [21]. It is essential that the question of law relied on for the purposes of s 105(2) be identified with precision. See Paradis [53].

    [6] TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175, 178 (Gummow J).

12. Rule 32(4)(e) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Court of Appeal Rules) provides, relevantly and in effect, that if, under the written law under which an appeal is made, an appeal lies only if it is on a question of law, the appellant's grounds of appeal must state the question or questions of law.

1. Fourthly, the Tribunal's decision, as embodied in the relevant orders, that the respondent engaged in unsatisfactory professional misconduct and professional misconduct created an estoppel unless and until:

   (a)the decision is varied or revoked by the Tribunal if and insofar as the SAT Act or the LP Act expressly or impliedly permits its variation or revocation; or

   (b)the decision is quashed on appeal or review.

2. Fifthly, having regard to this court's reasons in Chang, neither the SAT Act nor the LP Act expressly or impliedly permits the Tribunal's decision, as embodied in the orders made on 21 June 2019, to be varied or revoked by the Tribunal. In particular, the Tribunal's denial of procedural fairness to the Committee cannot now be corrected by the Tribunal pursuant to:

   (a)the power under s 34(1) of the SAT Act to give directions in a proceeding; or

   (b)the power under s 83 of the SAT Act to 'correct' a decision pursuant to, in effect, a statutory 'slip rule'; or

   (c)any other provision of the SAT Act which permits the Tribunal in limited and confined circumstances to vary or review its own decisions.

3. In any event, even if, contrary to our opinion, it would be open to the Tribunal, at the penalty hearing, to consider whether to make the findings contended for by the Committee at the liability hearing in relation to the respondent's conduct in sending the 17 June 2016 and 29 June 2016 letters, without this court granting leave to appeal, allowing the appeal, quashing the relevant decision of the Tribunal and remitting the matter to the Tribunal, we would not dispose of this aspect of the appeal on that basis.

4. Procedural fairness will ordinarily require that the Committee and a practitioner be given an opportunity to adduce evidence and make submissions at a hearing on penalty, as to the consequential orders that should be made under s 438(2) of the LP Act, after the Tribunal has decided that the practitioner engaged in unsatisfactory professional conduct or professional misconduct and after the Tribunal has published reasons for that decision. See Sakalo v The Medical Board of Western Australia;[21] Chang [351]. So, any hearing or rehearing by the Tribunal, in relation to the findings contended for by the Committee at the liability hearing in relation to the respondent's conduct in sending the 17 June 2016 and 29 June 2016 letters, should be completed and reasons for decision should be published before the Tribunal hears from the parties at a penalty hearing concerning the consequential orders that should be made under s 438(2).

   [21] Sakalo v The Medical Board of Western Australia [2002] WASCA 178 [43] ‑ [45] (Wheeler JA).

5. As to the Tribunal's denial of procedural fairness to the Committee, we note that:

   (a)the findings of the Tribunal that the respondent's conduct in sending the 17 June 2016 and 29 June 2016 letters fell substantially short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner; and

   (b)the findings sought by the Committee in relation to the respondent's conduct in sending those letters, namely that the respondent's conduct was such as to be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence or, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence,

   are intermediate findings of fact.

6. This court's power to grant leave to appeal under s 105(1) of the SAT Act relates to 'a decision of the Tribunal in the proceeding'. A 'decision', as defined in s 3 of the SAT Act, does not include the intermediate findings of fact which the Tribunal made or failed to make. Accordingly, no appeal lies to this court in respect of intermediate findings of fact made or not made. That reflects the position in relation to statutory appeal rights generally. As Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ observed in Arbuthnot v Chief Executive of the Department of Work and Income:[22]

   It is fundamental that an appeal must be against the result to which a decision maker has come, namely the order or declaration made or other relief given, not directly against the conclusions reached by the decision maker which led to that result, although of course any flaws in those conclusions may provide the means of impeaching the result.  A litigant cannot therefore, save perhaps in very exceptional circumstances, bring an appeal when they have been entirely successful and do not wish to alter the result.  The successful litigant cannot seek to have the appeal body overturn unfavourable factual or legal conclusions made on the journey to that result which have had no significant impact on where the decision maker ultimately arrived.  In short, there is no right of appeal against the reasons for a judgment, only against the judgment itself (Lake v Lake [1955] P 336 (CA) at pp 343 ‑ 344 per Evershed MR).

   [22] Arbuthnot v Chief Executive of the Department of Work and Income [2008] 1 NZLR 13 [25].

7. However, the absence of a right of appeal to this court under s 105(1) of the SAT Act, in respect of intermediate findings of fact made or not made by the Tribunal, is not an obstacle to this court granting leave to appeal, allowing the appeal, quashing the relevant decision of the Tribunal and remitting the matter to the Tribunal where the Tribunal has denied procedural fairness to a party. The denial of procedural fairness relates to the Tribunal's decision and it is that decision, rather than any intermediate findings of fact, that is quashed.

8. We are satisfied that the Tribunal's denial of procedural fairness has caused substantial injustice to the Committee. Although it remains open to the Committee, having regard to the Tribunal's decision that the respondent engaged in unsatisfactory professional conduct and professional misconduct and the intermediate findings of fact that underpin that decision, to submit at the penalty hearing that the Tribunal should make and transmit a report to the Supreme Court (full bench) under s 438(2)(a) of the LP Act, the Committee has suffered substantial injustice because the denial of procedural fairness has materially diminished the prospect that the Tribunal will determine to make and transmit a report to the Supreme Court (full bench).

9. The Committee's case before the Tribunal was that the impugned allegations in the letters in fact had no reasonable basis and a finding to that effect was sufficient to determine the matter in the Committee's favour.  We consider that the absence of a contention by the Committee in its case before the Tribunal to the effect that the respondent sent the letters in the knowledge that there were no reasonable grounds for the allegations made in the letters, or that the respondent sent the letters reckless as to that fact or grossly careless as to that fact, does not make it just for this court, in effect, to affirm the Tribunal's decision pursuant to the power conferred on this court by s 105(9)(a) of the SAT Act.

10. The alleged questions of law, concerning the Tribunal having denied the Committee procedural fairness, that are raised in respect of substituted ground 3 have been made out.  Substituted ground 3 has been made out in relation to the procedural fairness issues.

11. Counsel for the Committee submitted and counsel for the respondent conceded before this court that the Tribunal applied the wrong legal test in determining ground 1 of Annexure A to the Committee's application.

12. We are satisfied that, in the circumstances, the Committee's submission and the respondent's concession before this court as set out at [228] above should be accepted. The Tribunal did not in its reasons deal with the Committee's allegations in ground 1 of Annexure A, namely that the respondent's conduct in sending the letters dated 17 June 2016 and 29 June 2016 was such as to be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence or, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence. Rather, the Tribunal dealt with the matter by reference to whether the sending of the letters fell substantially short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. The essence of the Committee's allegations in ground 1 of Annexure A was that the respondent, by sending the letters, had engaged in a course of conduct which evidenced that he is unfit to practice. The Committee did not allege that the respondent's conduct involved any question of competence and diligence.

13. The alleged question of law, concerning the Tribunal having applied the wrong legal test in determining ground 1 of Annexure A to the application, that is raised in respect of substituted ground 3, has been made out.  Substituted ground 3 has been made out in relation to the wrong legal test issue.

14. Counsel for the Committee submitted that the Tribunal's reasons for its decision not to determine the questions the subject of the Tribunal's denial of procedural fairness were inadequate.  Counsel for the respondent accepted that the Tribunal's reasons in that respect were not adequate.

15. As we have explained, we are of the opinion that the Tribunal denied the Committee procedural fairness by failing to consider the Committee's allegations that the respondent's conduct in sending each of the letters dated 17 June 2016 and 29 June 2016 was such as to be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence or, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence.  The Tribunal did not in its reasons give any explanation (let alone an adequate explanation) for failing to consider those issues.  The alleged question of law, concerning the Tribunal having failed to give adequate reasons, that is raised in respect of substituted ground 3, has been made out.  Substituted ground 3 has been made out in relation to the failure to give reasons issue.

Alleged questions of law raised in respect of substituted ground 5:  the Committee's submissions

1. The Committee noted that the Tribunal stated in each of [303], [314], [340] and [343] of its reasons that the Tribunal would not consider whether the respondent had failed to comply with each of the summonses for the production of documents and the provision of information dated 4 January 2017 which the Committee had served on the respondent, pursuant to s 520(1)(a) and (d) of the LP Act, for the purpose or a substantial purpose of seeking to frustrate the Committee's investigations into his conduct.

2. Counsel for the Committee also noted:

   (a)at [88] of its reasons, the Tribunal identified the Committee's allegations regarding the information summons the subject of ground 2 of Annexure A of the application and, at [89] of its reasons, identified the Committee's allegations regarding the document summons the subject of ground 3 of Annexure A;

   (b)at [183] of its reasons, the Tribunal identified the Committee's allegations regarding the information summons the subject of ground 3 of Annexure B to the application and, at [184] of its reasons, the Tribunal identified the Committee's allegations regarding the document summons the subject of ground 4 of Annexure B;

   (c)at [305], [316] and [340] of its reasons, the Tribunal found that the respondent's conduct in failing to respond to each summons fell short by a substantial degree of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner and that the respondent's conduct therefore constituted professional misconduct;

   (d)at [307], [314], [340] and [343] of its reasons, the Tribunal found that the respondent's failure to comply with each of the summonses was without reasonable excuse; and

   (e)at [303], [314], [340] and [343] of its reasons, the Tribunal said that it was unnecessary to make any finding as to why the respondent had failed to comply with each summons, beyond determining whether the respondent had a 'reasonable excuse' within the meaning of s 532(3) of the LP Act for that failure in each case.

3. It was submitted that:

   (a)the Tribunal's failure to inform the parties, before the Tribunal delivered its reasons, that the Tribunal proposed not to determine whether the respondent had the purpose or substantial purpose alleged by the Committee; and

   (b)the Tribunal's failure to give any reasons for its decision not to determine those questions (other than as stated in [303], [314], [340] and [343] of its reasons),

   constituted a denial to the Committee of procedural fairness.

4. Next, counsel for the Committee asserted that the Tribunal denied the Committee procedural fairness in failing to consider whether the respondent's conduct in failing to comply with each summons fell short, by a substantial degree, of the standard of professional conduct observed or approved by members of the profession of good repute and competence, and would reasonably be regarded as disgraceful or dishonourable by practitioners of good repute and competence, such that the respondent is not a fit and proper person to engage in legal practice within the meaning of s 403(1)(b) of the LP Act. Counsel repeated in support of that proposition the matters we have set out at [234] and [235] above.

5. Counsel also submitted:

   (a)As appears from [303], [305], [314], [316], [340] and [343] of its reasons, the Tribunal confined its consideration of the questions of whether the respondent's conduct concerning the summonses constituted professional misconduct to a consideration of the respondent's competence and diligence.

   (b)The Tribunal did not address in its reasons whether, as alleged by the Committee in each of grounds 2 and 3 of Annexure A and grounds 3 and 4 of Annexure B to the application, the respondent's conduct was such as to be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence or, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence.

6. Next, counsel for the Committee asserted that the Tribunal erred in law in determining, at [305], [316], [340] and [343] of its reasons, that the respondent's conduct as alleged in each of grounds 2 and 3 of Annexure A and grounds 3 and 4 of Annexure B of the application fell short by a substantial degree of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner, and not by reference to the allegations made by the Committee that the respondent's conduct would reasonably be regarded as disgraceful or dishonourable by practitioners of good repute and competence, such that the respondent is not a fit and proper person to engage in legal practice.  Counsel repeated in support of that proposition the matters we have set out at [234], [235] and [237] above.

Alleged questions of law raised in respect of substituted ground 5:  the respondent's submissions

1. Counsel for the respondent noted that the Committee's substituted ground 5 made three complaints, each expressed to be 'further and in the alternative' to the others.  Ground 5.1 refers to the Tribunal's decision that it did not have to decide a particular factual allegation pleaded by the Committee, other than for a limited purpose.  Grounds 5.2 and 5.3 refer to the Tribunal's failure to consider (ground 5.2) and failure to determine (ground 5.3) whether the respondent was guilty of professional misconduct on the primary basis alleged by the Committee.

2. As to ground 5.1:

   (a)counsel conceded that the Tribunal erred in law by failing to notify the Committee (and the respondent) that the Tribunal did not intend to make a finding about the 'hindering purpose' allegation, or any finding about why the respondent had failed to comply with the summonses, other than in order to determine whether he had a reasonable excuse for not doing so; and

   (b)counsel acknowledged that the Committee submitted (in reply) before the Tribunal that the only reasonable inference to be drawn from the respondent's conduct in relation to the summonses (including his defence of the allegations about them before the Tribunal) was that he 'avoided those information summonses precisely to delay and hinder the (Committee's) investigation into his conduct'.

3. Counsel noted that the Tribunal stated, not that it 'would not' consider the 'hindering purpose' allegation, but that it did not need to make any finding as to why the respondent had failed to comply with each summons, other than for the purpose of determining whether the respondent had a reasonable excuse for his failure to comply.

4. On that basis, it was submitted that it would be open to the Committee, in submissions as to penalty, to request the Tribunal to make a further finding of fact that the respondent had the 'hindering purpose', as relevant to the appropriate penalty for the respondent's conduct.

5. It was submitted that the orders made by the Tribunal in determining the 'summons grounds' (orders 6, 7, 12 and 13) were simply that the respondent had 'engaged in professional misconduct in failing to comply with [each summons]'.  It was submitted that the Committee does not contend otherwise, yet it seeks to have those orders set aside.

6. Counsel contended that the Tribunal's determination that it did not need to decide the 'hindering purpose' allegation in deciding that the respondent had engaged in professional misconduct is not a determination that, in the interests of justice, justifies a grant of leave to appeal.

7. As to grounds 5.2 and 5.3:

   (a)counsel conceded that the Tribunal failed to afford the Committee procedural fairness by failing to address in its reasons whether the respondent's conduct as found by the Tribunal met any or all of the components of the Committee's case;

   (b)however, counsel argued that the Tribunal did determine that the respondent's conduct breached s 520(5) and s 532(3) of the LP Act and determined that the respondent was guilty of professional misconduct in relation to each summons.

8. Further, as to ground 5.3, counsel for the respondent submitted that ground 5.3 added nothing to the substance of ground 5.2 and that leave to appeal should not be granted in relation to ground 5.3 for the same reasons that apply in relation to ground 5.2.

Alleged questions of law raised in respect of ground 5:  their merits

1. The Committee complains, in essence, about the Tribunal's conclusion that the respondent's conduct in failing to comply with each summons fell short by a substantial degree of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner and that the respondent's conduct therefore constituted professional misconduct.

2. The Committee contends, in essence, that the Tribunal made errors of law in failing to find that the respondent's conduct in failing to comply with each summons would reasonably be regarded as disgraceful or dishonourable by practitioners of good repute and competence, such that the respondent is not a fit and proper person to engage in legal practice.

3. Counsel for the Committee submitted and counsel for the respondent conceded before this court that:

   (a)the Tribunal denied the Committee procedural fairness in that the Tribunal failed to inform the parties that it contemplated not determining the Committee's allegations that the respondent's conduct in failing to comply with each summons would reasonably be regarded as disgraceful or dishonourable by practitioners of good repute and competence, such that the respondent is not a fit and proper person to engage in legal practice; and

   (b)the Tribunal failed to afford the Committee procedural fairness by failing to consider each of those issues.

1. We are of the opinion, generally for the reasons we have given in dealing with the relevant questions of law raised in respect of substituted ground 3, that the Committee's submission and the respondent's concession before this court as set out at [249] above should be accepted.

2. We are also of the opinion, generally for the reasons we have given in dealing with the relevant questions of law raised in respect of substituted ground 3, that it would not be open to the Tribunal at the penalty hearing:

   (a)to consider whether to find, as contended by the Committee at the liability hearing, that the respondent's conduct in failing to comply with each summons would reasonably be regarded as disgraceful or dishonourable by practitioners of good repute and competence, such that the respondent is not a fit and proper person to engage in legal practice;

   (b)if thought fit, to make that finding; and

   (c)if the Tribunal were to make that finding, to deal with the respondent, having regard to that finding, at the penalty stage of the proceedings,

   without this court granting leave to appeal, allowing the appeal and setting aside, wholly or partly, one or more of the relevant orders made by the Tribunal on 21 June 2019.

3. In any event, even if, contrary to our opinion, it would be open to the Tribunal, at the penalty hearing, to consider whether to find, as contended by the Committee at the liability hearing, that the respondent's conduct in failing to comply with each summons would reasonably be regarded as disgraceful or dishonourable by practitioners of good repute and competence, such that the respondent is not a fit and proper person to engage in legal practice, without this court granting leave to appeal, allowing the appeal, quashing the relevant decision of the Tribunal and remitting the matter to the Tribunal, we would not dispose of this aspect of the appeal on that basis, generally for the reasons we have given in dealing with the relevant questions of law raised in respect of substituted ground 3.

4. We are satisfied that the Tribunal's denial of procedural fairness has caused substantial injustice to the Committee. Although it remains open to the Committee, having regard to the Tribunal's decision that the respondent engaged in professional misconduct and the intermediate findings of fact that underpin that decision, to submit at the penalty hearing that the Tribunal should make and transmit a report to the Supreme Court (full bench) under s 438(2)(a) of the LP Act, the Committee has suffered substantial injustice because the denial of procedural fairness has materially diminished the prospect that the Tribunal will determine to make and transmit a report to the Supreme Court (full bench). We reject counsel for the respondent's submission that the interests of justice do not justify a grant of leave to appeal.

5. The alleged questions of law raised in respect of substituted grounds 5.2 and 5.3 have been made out.  Substituted grounds 5.2 and 5.3 have been made out.

6. It is unnecessary, having regard to the Committee's success on the questions of law raised by substituted grounds 5.2 and 5.3 and the substitutive orders that we would make in the appeal, to determine the alleged question of law raised in respect of substituted ground 5.1.  In particular, it is unnecessary, in the circumstances, to determine whether it would be open to the Tribunal, at the penalty hearing, to find (consistently with the Tribunal's decision on liability that the respondent engaged in professional misconduct by failing to comply with the summonses) that the respondent failed to comply with the summonses for the purpose or substantial purpose of seeking to frustrate or hinder the Committee's investigation.

The orders that this court should make in the appeal

1. The power of this court under s 105(1) of the SAT Act to give leave to appeal is conferred in general terms. It is not restricted or qualified. Leave should be granted if, in all of the circumstances, it is in the interests of justice that there be a grant of leave. See Paridis [16].

2. In the present case, the questions of law raised by the Committee in the context of substituted grounds 3, 5.2 and 5.3 of the appeal are of importance in relation to the appropriate conduct by the Tribunal of professional disciplinary proceedings.

3. We would grant leave to appeal in respect of orders 1 to 6, 12, 13 and 17 of the orders made by the Tribunal on 21 June 2019.

4. Orders 1 to 6, 12, 13 and 17 should be set aside.

5. This court may make substitutive orders under s 105(9) of the SAT Act 'where only one conclusion is open on the correct application of the law to the facts found by the Tribunal': Osland [20]. As French CJ, Gummow and Bell JJ noted in Osland [20], such a case arises 'when no other conclusion could reasonably be entertained' and, in that event, this court can make the orders that the Tribunal should have made.

6. Although the language of s 105(9) is of sufficient breadth to allow this court to make substitutive orders in other circumstances, that power must be exercised having regard to the limited nature of this court's 'appellate' jurisdiction, which, as we have mentioned, is confined to appeals 'on' questions of law.

7. Recently, in Young v Legal Profession Complaints Committee,[23] Buss P examined (Quinlan CJ and Beech JA relevantly agreeing) the manner in which this court's power under s 105(9) of the SAT Act has been and should be exercised. It is unnecessary to repeat what Buss P wrote on that occasion.

   [23] Young v Legal Profession Complaints Committee [2022] WASCA 52 [295] – [313].

8. In the present case, the Committee's primary substituted orders wanted are to the effect that this court should make the intermediate findings of fact and the orders sought by the Committee before the Tribunal, but which the Tribunal did not consider or make.  Counsel for the respondent submitted that if this court decided to set aside orders 1 to 6, 12, 13 and 17 of the orders made by the Tribunal on 21 June 2019 then this court should remit the matter to the Tribunal for determination according to law.

9. We would not make the Committee's primary substituted orders wanted. We are not satisfied that the intermediate findings of fact sought by the Committee are the only facts that are open to be found. Also, we are not satisfied that the ultimate conclusions to be drawn by the Committee from those intermediate findings of fact are the only ultimate conclusions that are open to be drawn. Further, the Tribunal has not exercised the power under s 438(2) to make consequential orders and therefore the Tribunal's exercise of its jurisdiction under s 438(1) has not been completed. It is appropriate, in all of the circumstances, that this court order that grounds 2 and 3 of Annexure A and grounds 3 and 4 of Annexure B to the Committee's application lodged with the Tribunal on 8 June 2018 be remitted to a differently constituted Tribunal to be heard and determined again according to law. The issue as to whether the differently constituted Tribunal hears any further evidence on the matters remitted to the Tribunal should be decided by the Tribunal after hearing submissions from the parties.

10. Counsel should be heard as to the appropriate orders to give effect to these reasons and also in relation to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KW

Associate to the Honourable Justice Buss

31 AUGUST 2022