Legal Profession Complaints Committee v Lourey
[2019] WASC 62
•5 MARCH 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: LEGAL PROFESSION COMPLAINTS COMMITTEE -v- LOUREY [2019] WASC 62
CORAM: ACTING JUSTICE STRK
HEARD: 23 NOVEMBER 2018
DELIVERED : 5 MARCH 2019
FILE NO/S: CIV 2126 of 2018
BETWEEN: LEGAL PROFESSION COMPLAINTS COMMITTEE
Applicant
AND
MICHAEL JOSEPH LOUREY
Respondent
Catchwords:
Application for contempt - Summons to produce documents issued pursuant to the Legal Profession Act 2008 (WA) s 520(1)(a) - Application by the respondent to set aside the summons - Whether collateral review is available - Whether the Rules of the Supreme Court 1971 (WA) O 36B applies to a summons issued pursuant to the Legal Profession Act 2008 (WA) s 520(1)(a) - Construction of the Legal Profession Act 2008 (WA) s 520(7) - Collateral review - Whether the summons was beyond power and therefore invalid
Legislation:
Legal Profession Act 2008 (WA)
Legal Profession Conduct Rules 2010 (WA)
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)
Result:
Applications dismissed
Category: B
Representation:
Counsel:
| Applicant | : | G D Cobby SC |
| Respondent | : | G M G McIntyre SC |
Solicitors:
| Applicant | : | Legal Profession Complaints Committee |
| Respondent | : | Chapmans Barristers & Solicitors |
Case(s) referred to in decision(s):
A v Independent Commission Against Corruption (2014) 88 NSWLR 240
AB v Western Australia [2011] HCA 42; (2011) 244 CLR 390
Amey v Long (1808) 9 East 473
Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350
Attorney‑General (Cth) v Breckler [1999] HCA 28; (1999) 197 CLR 83
Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351
Carter v Managing Partner, Mallesons Stephen Jaques (1993) 11 WAR 159
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Clay v Karlson (1997) 17 WAR 493
Commonwealth v Albany Port Authority [2006] WASCA 185
Etter v Legal Profession Board of Tasmania [2018] TASFC 2
Finlayson v Legal Practitioners Conduct Board [2012] SASC 77; (2012) 112 SASR 549
Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290
Hempseed v Ward [2013] QSC 348
John v Denwest Nominees Pty Ltd t/as Cunderdin Roadhouse [2015] WADC 22
Johnson v Denwest Nominees Pty Ltd t/as Cunderdin Roadhouse [2017] WASCA 200
Legal Profession Board of Tasmania v Etter [2017] TASSC 77
Legal Profession Complaints Committee v Amsden [2014] WASAT 57
Melbourne Home of Ford Pty Ltd v Trade Practices Commissions (No 3) [1980] FCA 94
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69
SAS Trustee Corporation v Miles [2018] HCA 55
ACTING JUSTICE STRK:
By this proceeding, the Legal Profession Complaints Committee (LPCC), applies for orders that Michael Joseph Lourey be found guilty of contempt for wilfully disobeying, without lawful excuse, a summons to produce documents served under the Legal Profession Act 2008 (WA) (LPA) s 520(1)(a), and that Mr Lourey be punished pursuant to the Rules of the Supreme Court 1971 (WA) (RSC) O 55 r 7 and r 8.
On 23 November 2018, I heard an application made on behalf of Mr Lourey to set aside the summons to produce documents, or part of it, or grant other relief in respect of it, pursuant to the RSC O 36B. At the same hearing, the legality of the administrative act, that is, the issue of the summons, was also challenged. Mr Lourey pressed for these matters to be considered and determined before the substantive application for contempt.
For the reasons set out below, I find that the application made pursuant to the RSC O 36B must fail. The rule does not apply to a summons issued under the LPA s 520(1)(a). I also find that the challenge made on behalf of Mr Lourey to the legality of the administrative act was misconceived.
However, I make no findings as to whether Mr Lourey obeyed or disobeyed the summons. As explained in more detail below, that is a question for another day.
Background
A number of affidavits have been filed in the proceeding. To date, the parties have been unable to reach agreement as to a chronology of events.[1]
[1] Chronology of events filed on behalf of the LPCC on 3 October 2018; Reply to the applicant's chronology of events filed on behalf of Mr Lourey on 15 October 2018.
To determine the applications before me, it was not necessary for me to make factual findings in relation to the broader factual matrix. Set out below is a summary of the background, limited to that which is relevant to the applications to set aside the summons.
It is common ground that Mr Lourey is and was at all relevant times:
(a)an Australian lawyer for the purposes of the LPA s 520(1)(a);
(b)up until 13 September 2017, the legal practitioner director of the incorporated legal practice Chapmans Lawyers Pty Ltd (ACN 165 789 542), trading as Chapmans Barristers & Solicitors; and
(c)from 14 September 2017, the legal practitioner director of the incorporated legal practice Eureka Services Pty Ltd (ACN 165 789 533), trading as Chapmans Barristers & Solicitors.
It is also common ground that Chapmans Barristers & Solicitors acted on behalf of the appellant, Mr Johnson, in District Court appeal proceedings APP 104 of 2014, which appeal was determined on 13 March 2015: John v Denwest Nominees Pty Ltd t/as Cunderdin Roadhouse [2015] WADC 22 (Birmingham DCJ).
The LPCC says that on or about 2 May 2017, Ms Gael Louise Roberts (the Law Complaints Officer appointed under the LPA, being an investigator within the meaning of the LPA s 520(1)(a), and for the purpose of carrying out a complaint investigation in relation to Mr Lourey under the LPA), served on Mr Lourey a summons to produce documents under the LPA s 520(1)(a). A copy of the summons is reproduced at Schedule A to these reasons.
The summons was enclosed with a letter addressed to Mr Lourey dated 2 May 2017. A copy of the letter is reproduced at Schedule B to these reasons.
By the letter dated 2 May 2017, the LPCC confirmed that it was investigating the conduct of Mr Lourey on its own initiative pursuant to the LPA s 421. The letter states that the conduct being investigated arises from the matters and actions referred to in the District Court decision[2] as an abuse of process, oppressive, unfair, harassment, unconscionable and scandalous to the administration of justice; in particular, possible unsatisfactory professional conduct or professional misconduct in taking the action described at pars 1 to 4 of that letter.
[2] John v Denwest Nominees Pty Ltd t/as Cunderdin Roadhouse.
The summons required Mr Lourey to produce to the Law Complaints Officer at the office of the LPCC, on or before 4pm, Wednesday 24 May 2017, the documents identified in the paragraph numbered 1.
As between May and August 2017, correspondence was exchanged as between the LPCC and Mr Lourey. Under cover of a letter dated 15 August 2017, Mr Lourey provided the LPCC with 'copies of all documents relevant to the complaint set out in [the] letter of 2 May 2017,' with the following qualification:[3]
As you are aware, we do have other documents on our file for Mr Johnson that we do not believe are relevant to the complaint of 2 May 2017. We are prepared to, in certain circumstances, allow you inspection of those other documents to enable you to identify which other documents you believe relevant to the complaint. We can then look at the matter again. If you wish to avail yourself of this opportunity please contact our Ms Karina Costello to put the necessary arrangements in place.
[3] Affidavit of Michael Joseph Lourey affirmed 3 October 2018 'MJL 52', page 70.
In summary, the LPCC says that although some documents were provided pursuant to the summons, Mr Lourey failed to produce all documents within his possession, custody or power or which he was otherwise able to produce as required by the summons in the time provided, or at all.
Procedural history
This proceeding was commenced by the LPCC, seeking orders that Mr Lourey be found guilty of contempt for wilfully disobeying, without lawful excuse, the summons to produce documents, and that he be punished (the contempt application).
The originating motion was supported by two affidavits, the first sworn by Siobhan Maree Evans, an administrative assistant employed by the Legal Practice Board of Western Australia, filed on 29 June 2018; the second sworn by Jillian Denise Dixon, a legal officer employed by the Legal Practice Board of Western Australia at the LPCC, filed on 2 July 2018.
The contempt application was listed for substantive hearing on 31 October 2018 before Archer J. On 20 September 2018, programming directions were made by her Honour to facilitate the same.
On 3 October 2018, an affidavit sworn by Mr Lourey was filed in response to the contempt application. The position adopted by Mr Lourey was as summarised at pars 24 ‑ 28 of his affidavit, which paragraphs are reproduced below:
24.The Directors have no problem providing copies of all further documents of whatever nature from the Practice's file, and have restricted the documents provided to the LPCC solely on the grounds of relevance. If the LPCC could establish why, given the way they have framed their complaint, these further documents are relevant to the complaint, we would be pleased to provide copies to the LPCC.
25.To this point despite our requests, the LPCC have not set out why the remaining documents, from the [point] (sic) Mr Johnson first instructed us, are relevant to their complaint. My only objection at the moment is therefore on the grounds of relevance.
26.We have not, and would never, refuse to provide copies of documents in response to a Summons, whether a s520 Summons from the LPCC or otherwise. The Directors do not believe it can be the case, however, that the LPCC's powers in respect of issuance of and compliance with a Summons, which powers are governed by statute, can be so broad and oppressive as to require, under threat of contempt of Court proceedings, a legal practitioner to provide documents to them that are not relevant to the complaint.
27.In my opinion, the Directors have complied with the Summons by way of the documents provided to the LPCC on 15 August 2017, and if the LPCC can establish why the other documents are relevant to the complaint/investigation, I am confident the Directors will have no problems allowing the LPCC to attend this practice and inspect the whole of Mr Johnson's file and take copies of anything else they believe relevant to their complaint/investigation.
After the commencement of this proceeding, by letter addressed to the Principal Registrar of this court, Mr Lourey requested that the court set aside the summons to produce documents, or part of it, or grant other relief in respect of it, pursuant to the RSC O 36B r 8A(2)(a) and (c). The request was filed in the contempt proceeding,[4] and Mr Lourey pressed for the request be determined before the substantive contempt application.[5]
[4] The request was filed in the proceeding known as CIV 2126 of 2018 on 26 September 2018.
[5] Application by letter filed on behalf of Mr Lourey on 5 October 2018, seeking that the request be determined prior to the substantive hearing of the contempt application on 31 October 2018.
The stated ground of the request and the relief sought were as follows:
a)Ground- The summons issued by the LPCC in these proceedings seeks documents well beyond that relevant to the complaint filed by the LPCC on 2 May 2017 and/or the summons issued by the LPCC in these proceedings is an abuse of the Court's process;
b)Relief Sought- That the Summons be set aside, or those parts of the Summons that seek irrelevant documents, be set aside.
On 17 October 2018, the proceeding was again listed before Archer J for directions.
Written outlines of submissions were filed on behalf of each of the parties prior to the directions hearing.[6] In summary, the position pressed on behalf of the LPCC was that the issue of a summons pursuant to the LPA s 520 is an administrative act. As such, the issue of a summons under the LPA may be subject to judicial review, but it cannot be set aside pursuant to the RSC O 36B, whether pursuant to the RSC O 36B r 8A or otherwise.[7] The contrary position was pressed on behalf of Mr Lourey. It was also foreshadowed that in the event that Mr Lourey was incorrect, an application for judicial review would be filed on his behalf on 18 October 2018, immediately following the directions hearing on 17 October 2018, subject to the outcome of that hearing.[8]
[6] Outline of submissions for directions hearing filed on behalf of the LPCC 11 October 2018; and the outline of submissions for directions hearing filed on behalf of Mr Lourey 15 October 2018.
[7] Outline of submissions for directions hearing filed on behalf of the LPCC on 11 October 2018 par 6.
[8] Outline of submissions for directions hearing filed on behalf of Mr Lourey on 15 October 2018 par 11.
During the course of the directions hearing before Archer J on 17 October 2018:
(a)it was conceded on behalf of Mr Lourey that his defence to the contempt application was a 'technical one',[9] and the outcome of the applications to set aside the summons could change the nature of the substantive hearing, if there was one, from an exploration of contempt to a mitigation hearing;[10]
(b)the court was informed that it was the LPCC's position that the validity of the summons was a matter of administrative law; and whilst it could be pursued a number of ways, the LPCC would be open to Mr Lourey mounting such an attack by way of collateral attack in the substantive contempt proceeding rather than by the issue a separate writ for judicial review;[11]
(c)as to the filing of a separate writ for judicial review, her Honour noted that if an application for judicial review was filed, it could be 'fast-tracked' (that is, admitted to her Honour's Commercial and Managed Cases List and an order made that the proceedings be dealt with at the same time). Both her Honour and counsel for Mr Lourey observed that proceeding as suggested by the LPCC (that is, pursuit of a collateral attack within the existing contempt proceeding) would be more desirable than the commencement of a separate proceeding;[12] and
(d)it was determined that the attacks on the summons would be determined before the substantive application.[13]
[9] ts 14 (17 October 2018).
[10] ts 14 (17 October 2018).
[11] ts 14 (17 October 2018).
[12] ts 17 (17 October 2018).
[13] ts 15 (17 October 2018).
The directions hearing was adjourned without orders being made so as to allow conferral, and for counsel for Mr Lourey to consider the appropriate way forward.
On 23 October 2018, and by consent, Archer J made orders vacating the substantive hearing of the contempt application,[14] and listing the applications to set aside the summons for hearing on 23 November 2018. Her Honour also made programming directions for the determination of the applications made on behalf of Mr Lourey concerning the summons. The programming directions contemplated the filing of written submissions and any affidavits upon which the parties intended to rely in support of the applications to set aside the summons. No order was sought nor made to 'fast track' a separate proceeding for judicial review, presumably because no separate application for judicial review had been filed on behalf of Mr Lourey following the directions hearing on 17 October 2018.
[14] That is, the listing of the proceeding for substantive hearing on 31 October 2018 before Archer J.
On 29 October 2018, Mr Lourey commenced separate proceedings known as CIV 2873 of 2018 against Ms Gael Louise Roberts. Ms Roberts is the Law Complaints Officer appointed under the LPA. By that separate proceeding, Mr Lourey sought judicial review pursuant to the RSC O 56 r 2. The decision sought to be reviewed was described in the application for judicial review as follows:
Ms Gael Louise Roberts ('the Law Complaints Officer') do show cause before a Single Judge why a Writ of Certiorari should not be issued against her for the purpose of quashing her decision of 2 May 2017, which decision resulted in a Summons dated 2 May 2017 being served on the applicant by the Respondent, which decision was contrary to s.520 of the Legal Professions Act, 2008 ('the LPA') and which was an abuse of power, made without power or outside power, was oppressive, was invalid due to a jurisdictional error of law, and/or was made on an ultra vires basis.
If an application for judicial review is made outside of the applicable limitation period, the application must include an application for leave to proceed; and the applicant must file an affidavit explaining why the application was not made within the limitation period.[15] For the purpose of the RSC O 56, the term 'limitation period' is defined for an application for judicial review of a reviewable decision to mean 6 months after the later of the date on which the decision is made; or the date on which the applicant became aware of it.[16]
[15] RSC O 56 r 2(4).
[16] RSC O 56 r 1.
The reviewable decision having been made on 2 May 2017, the application for judicial review filed on behalf of Mr Lourey was made approximately 12 months outside of the applicable limitation period. The application was not marked so as to reveal that the applicant also applied for leave to proceed outside of the limitation period, nor was it supported by an affidavit explaining why the application was not made within the applicable limitation period.
On 8 November 2018, the LPCC entered a conditional appearance for and on behalf of Ms Roberts in CIV 2873 of 2018, as the person holding the office of Law Complaints Officer within the meaning of the LPA s 3 and s 572, at the material time.
No application was filed on behalf of Mr Lourey to admit CIV 2873 of 2018 into Archer J's Commercial and Managed Cases List, nor to vary the orders made by her Honour by consent on 23 October 2018, so that the application for judicial review might be 'fast tracked' and listed for hearing on 23 November 2018.
Mr Lourey's applications to set aside the summons in CIV 2126 of 2018 were listed before me on 22 November 2018 for directions, and on 23 November 2018 to be substantively heard.
At the directions hearing, counsel for Mr Lourey proffered the following by way of explanation:[17]
[T]he way in which this matter has proceeded. Of course, we have a contempt application by the [LPCC] and then, an application seeking to use Order 36B that was questioned as to whether that was the appropriate process that came before Archer J. And the [LPCC] then raised the prospect that – that their view is that, there is – that [Order] 36B doesn't properly found an application.
We can argue about that, but they said, 'Well, in any event, there is an opportunity for collateral attack to deal with the issue'. Which we put it – the matter which we put in issue, which is whether the summons is, in fact, beyond power given the range of the summons. So we – the essential argument for the respondent in the contempt application, is the summons – is more extensive than is required and therefore is not a proper exercise of the power.
So that's the contention which we sought to raise with the Order 36 application. If that was in doubt, [then] it's suggested that we can do that by way of collateral attack in any event. For the purpose of certainty, my instructors then issued the certiorari application so as to ensure that if our view about Order 36B was incorrect and if collateral attack was not open to us, then it is a matter which could be dealt with by way of judicial review.
And it was in that context that the application was made, and we accepted it's well out of time and the box was not ticked for an application for extension of time, and no affidavit was filed supporting it. Essentially, it was a boot-straps – a belt and braces approach to ensuring the court had jurisdiction to deal with the substantive issue. Now it's a matter for your Honour, as to how you wish to deal with it.
There are essentially two options. One is that you deal with the substantive argument tomorrow and you regard this as an alternative jurisdictional base for you to do it – that is the certiorari application. Or, if your Honour is concerned about the failure to comply with the proper processes, then we would need to deal with that by way of an application to amend the certiorari application, to seek an extension of time, and to provide a supporting affidavit.
There is some material in the affidavits before your Honour already, in relation to the contempt application which traces the history of the dealings between the [LPCC] and Mr Lourey, which would be a basis on which I could suggest to you that you could exercise a discretion to extend time, if you thought that was appropriate. Now, ultimately, if your Honour doesn't feel that you need to – that you are otherwise bereft of jurisdiction, then you may well choose to dismiss the certiorari application. We – we don't – we suggest that we are in a – it's not an abusive process in the sense that we're seeking to have a remedy by two different processes repeating one another.
All we're seeking to do is to make sure that the matter which is in dispute is properly before you and does have a proper jurisdictional basis for your Honour to resolve the issue, as to whether the extent of the summons is a proper exercise of the administrative power of the [LPCC].
[17] ts 22 ‑ 23 (22 November 2018).
At the directions hearing, the LPCC reiterated that the question of jurisdiction was conceded, so that a collateral attack on the validity of the summons might be argued on behalf of Mr Lourey in the contempt proceedings.[18] It was also noted, and was common ground, that the parties' submissions dealt with collateral attack on the validity of the summons in the same way that they would in a certiorari application.[19] The parties were in agreement that the real question was whether the court considered that it had jurisdiction in the contempt proceeding to determine a collateral attack on the validity of the summons.[20]
[18] ts 25 (22 November 2018).
[19] ts 25 (22 November 2018).
[20] ts 26 (22 November 2018).
I informed the parties that I would consider the authority referred to during the course of the directions hearing; that I would promptly give notice to the parties if I formed a different view in relation to jurisdiction; and that the parties should proceed on the basis that the hearing would proceed on 23 November 2018.[21] After the conclusion of the directions hearing, I did not give the parties notice that I had formed the view that the court lacked jurisdiction in the contempt proceedings to determine a collateral attack on the validity of the summons.
[21] ts 26 (22 November 2018).
At the commencement of the hearing on 23 November 2018, counsel for Mr Lourey sought an adjournment. The adjournment was sought so as to allow the application for judicial review to be properly before the court.[22] However, no steps had been taken on behalf of Mr Lourey to apply for leave in the judicial review proceeding, and no affidavit explaining why the application was not made within the limitation period had been filed.[23] Further, no written application for adjournment nor any affidavit in support of adjournment was filed, and there had been no prior conferral with, or notice given to the LPCC.
[22] That is, the application for judicial review proceeding known as CIV 2873 of 2018.
[23] As required by RSC O 56 r 2(4).
The application made on behalf of Mr Lourey to adjourn the hearing was opposed by the LPCC. Counsel for the LPCC confirmed that the LPCC continued to accept that the summons was open to collateral attack in the contempt proceeding.[24]
[24] ts 25 (23 November 2018).
Counsel for Mr Lourey also confirmed that Mr Lourey adopted the same position as the LPCC. That is, if counsel was to address the issue, he would contend that the summons was open to collateral attack in the contempt proceeding.[25] Counsel for Mr Lourey was not able to identify any prejudice to him if the court was to accept that the summons was open to collateral attack in the contempt proceeding and hear that application, in lieu of a separate application for judicial review.
[25] ts 29 (23 November 2018). In the respondent's further outline of submissions for hearing filed 31 October 2018, the argument for collateral review is made at 4 and 5.
In the contempt proceeding, the LPCC applies for, among other things, an order that Mr Lourey be found guilty of contempt for wilfully disobeying, without lawful excuse, the summons to produce documents secured under the LPA s 520(1)(a). On behalf of Mr Lourey, it is sought to be argued that the Law Complaints Officer as at 2 May 2017 made a jurisdictional error of law by including in the summons a number of documents that were irrelevant to the complaint served by the LPCC on Mr Lourey on or about 2 May 2017.[26]
[26] Further outline of submissions for hearing filed on behalf of Mr Lourey on 31 October 2018 par 6.
After hearing counsel for the parties, I refused the application for adjournment. It weighed heavily in the balance that there was no apparent prejudice to Mr Lourey if an adjournment was not granted.
I accepted that as a general principle, the legality of an administrative act is open to collateral review in a court in the course of dealing with an issue properly arising in a controversy before the court.[27] As noted by Allanson J in Australian Crime Commission v Marrapodi [128]:
In Re Lawrence; Ex Parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549, 560 Malcolm CJ (Seaman & Ipp JJ agreeing) said that as a general rule the court will allow the issue of invalidity to be raised in any proceedings where it is relevant. The rule is subject to some exceptions: where the collateral attack is considered to be an abuse of process because it constitutes an attack on a final decision of a court of competent jurisdiction; where the decision sought to be challenged was made within jurisdiction but invalidated by error of law on the face of the record; and where, as a matter of statutory construction, there is a statutory remedy which is the only remedy available (561). …
[27] Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351 [46], [127], citing Attorney‑General (Cth) v Breckler [1999] HCA 28; (1999) 197 CLR 83 [36], [94]; Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69, 69, 79 – 80, 87, 100, 130 ‑ 131, 144 – 146.
None of the exceptions to the general rule identified in Re Lawrence; Ex Parte Goldbar Holdings Pty Ltd are relevant in this proceeding, and I found that the legality of the administrative act, that is, the issue of the summons, was open to collateral review in this court in the course of dealing with the contempt application.
Further, I weighed in the balance the fact that no steps had been taken on behalf of Mr Lourey to remedy the failure to satisfy the requirements of the RSC O 56 r 2(4), and no satisfactory explanation for delay was proffered. An adjournment was not required to ensure fairness to Mr Lourey in all of the circumstances.
Materials before the court
At the hearing on 23 November 2018, counsel for Mr Lourey relied upon the written outline of submissions filed 15 October 2018, and the further outline of submissions filed 31 October 2018. No affidavit filed on behalf of Mr Lourey was read. Counsel confirmed that he only intended to refer to four documents annexed to the affidavit of Ms Dixon filed on 2 July 2018, being annexures 'JDD4', 'JDD13', 'JDD15', and 'JDD21'.[28]
[28] The affidavit of Ms Dixon filed on 2 July 2018 is referred to at [16] of these reasons.
On behalf of the LPCC, the affidavit of Ms Dixon filed on 2 July 2018 was read, but only for the documents referred to by counsel for Mr Lourey, together with the affidavit of Stephen Robert Merrick filed 7 November 2018. The LPCC also sought to rely upon the written outline of submissions filed 11 October 2018, and the written outline of submissions filed 7 November 2018.
Application made pursuant to the RSC O 36B
I turn first to the application made pursuant to the RSC O 36B. The following submissions were made on behalf of Mr Lourey.
First, that the LPA s 520(7) has the effect of deeming the summons to be, or to be the equivalent of, a 'subpoena … issued in a proceeding' as referred to in the RSC O 36B r 8(1).[29]
[29] Further outline of submissions filed on behalf of Mr Lourey on 31 October 2018 par 2(a).
On behalf of Mr Lourey the following concession was made.[30]
With respect to Order 36B of the Rules of the Supreme Court 1971, it is accepted that, notwithstanding the words of s 520(7) of the LPA, the Rule may only apply to a judicial Summons and not an administrative Summons. However, the words of s 520(7) are ambiguous in that they suggest the Summons 'issued' by the LPCC under s 520(1) of the LPA has the same effect as a Summons 'issued' by this Court for (relevantly) the production of documents in a civil action.
[30] Further outline of submissions filed on behalf of Mr Lourey on 31 October 2018 par 3.
It was also submitted that it is not necessary for the court to finally determine whether the RSC O 36B provides an applicable procedure to set aside the summons issued by the LPCC, because collateral review is available.[31]
[31] Further outline of submissions filed on behalf of Mr Lourey on 31 October 2018 par 4.
In circumstances where the application made pursuant to the RSC O 36B was pressed and was not withdrawn, it is appropriate that the application be determined.
The ambit of the RSC O 36B
For the purpose of the RSC O 36B, the term 'subpoena' means an order in writing requiring the addressee to attend to give evidence; or to produce the subpoena or a copy of it and a document or thing; or to do both of those things.[32]
[32] RSC O 36B r 1(1).
The RSC O 36B r 8A concerns the setting aside of a subpoena to produce, and r 8A(1) expressly states that the rule applies if a subpoena to produce has been issued in a proceeding.
A summons issued pursuant to the LPA s 520 is not an order of the court, and does not fall within the meaning of 'subpoena' for the purpose of the RSC O 36B.
A summons issued pursuant to the LPA s 520 is issued by an investigator. The power of an investigator to issue such a summons derives from the LPA s 520, and is to be exercised for the purpose of carrying out a complaint investigation in relation to an Australian lawyer. A summons issued under s 520 differs from a subpoena issued by the court in a proceeding before it, which power is derived from the inherent jurisdiction of the Royal Courts of Justice, which the court has inherited by the Supreme Court Act 1935 (WA) s 16(1) and s 16(3).[33]
[33] Carter v Managing Partner, Mallesons Stephen Jaques (1993) 11 WAR 159, 167 [15] ‑ [20].
Further, the judges of the court are not empowered to make rules to regulate or prescribe procedure beyond the court's jurisdiction. The Supreme Court Act s 167(1)(a) empowers the judges of the court to make rules of court for purposes which include regulating and prescribing the procedure and the practice to be followed in the court in all causes and matters whatsoever in or with respect to which the court has for the time being jurisdiction (including the procedure and practice to be followed in the offices of the court), and any matters incidental to or relating to any such procedure or practice, including the manner in which, and the time within which, any applications or appeals which under the Supreme Court Act or any other Act are to be made to the court, shall be made.
I also accept the LPCC's submission that the issue of the summons is not susceptible to the court's inherent jurisdiction to control its processes, and those of inferior courts.[34] Unless there is an effective 'deeming' by operation of the LPA, as suggested on behalf of Mr Lourey, the RSC O 36B cannot apply to a summons issued pursuant to the LPA s 520(1).
The meaning and operation of the LPA s 520(7)
[34] Outline of submissions filed on behalf of the LPCC on 7 November 2018 par 31, which refers to Commonwealth v Albany Port Authority [2006] WASCA 185 [16], [18], [20] – [21].
Mr Lourey contends that the LPA s 520(7) has the effect of deeming the summons to be, or to be the equivalent of, a 'subpoena … issued in a proceeding' as referred to in the RSC O 36B r 8(1).[35] For the following reasons, I do not agree.
[35] Further outline of submissions filed on behalf of Mr Lourey on 31 October 2018 par 2(a).
The question raised by Mr Lourey's submission does not appear to have been the subject of judicial consideration. The authorities which discuss the court's role in setting aside subpoenas issued in an arbitration do not assist, as the provisions of the various acts are markedly different.[36]
[36] For the purpose of an arbitration, a subpoena may be issued by a court under the Commercial Arbitration Act 2012 (WA) s 27A; formerly the Commercial Arbitration Act 1985 (WA) s 17, which provision is considered in Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290 [15] ‑ [18], [110] ‑ [121] (Pritchard J). See also Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350.
Accordingly, is necessary to construe the words of s 520(7) using well established principles of statutory construction. The starting point is to consider the meaning of the words used, within their context.[37]
[37] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ); AB v Western Australia [2011] HCA 42; (2011) 244 CLR 390 [10], [23] ‑ [24], [36], [38] (French CJ, Gummow, Hayne, Kiefel & Bell JJ); see also SAS Trustee Corporation v Miles [2018] HCA 55 [20] (Kiefel CJ, Bell & Nettle JJ).
The LPA is an act which provides for the regulation of legal practice in Western Australia. The LPA pt 15 contains provisions relating to investigations. In that part, the term 'complaint investigation' is defined to mean an investigation initiated by the LPCC under the LPA pt 13, or the investigation of a complaint under that part.[38] The term 'investigator' includes the Law Complaints Officer, being the person holding the office of that name established under the LPA s 572.[39]
[38] LPA s 517(1).
[39] LPA s 3.
The LPA pt 15 div 2 concerns requirements relating to documents, information and other assistance, and its application extends to complaint investigations.[40]
[40] LPA s 518(c).
The LPA s 520 is reproduced at Schedule C to these reasons. The LPA s 520(1) facilitates the carrying out of a complaints investigation by empowering an investigator to compel the lawyer the subject of a complaint investigation to produce any specified document (or copy of the document); to provide written information; and to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner.
As noted above, a summons issued under the LPA s 520 is issued by an investigator, not by the court. The power of an investigator to issue such a summons derives from the LPA s 520, and is to be exercised for the purpose of carrying out a complaint investigation in relation to an Australian lawyer.
The LPA s 520(7) provides that a summons issued under s 520 'has the same effect as a subpoena ad test or duces tecum, as the case may be, issued by the Supreme Court for the attendance of a witness for examination or production of documents in a civil action.'
By this proceeding, the LPCC applies for orders that Mr Lourey be found guilty of contempt for wilfully disobeying, without lawful excuse, the summons served under the LPA s 520(1)(a), and that Mr Lourey be punished pursuant to the RSC O 55 r 7 and r 8.
The contempt application made to this court is competent only by reason of the LPA s 520(8), which provides that '[obedience] to, or non‑observance of, a summons issued under [s 520] may be enforced and punished by a judge in chambers in the same manner as in the case of obedience to, or non‑observance of, a subpoena issued by the Supreme Court.' By the language used, the legislature has expressly adopted the provisions of the rules of the court which govern the failure to comply with a subpoena, that is, the RSC O 36B r 12, and O 55 r 7 and r 8.
I find that that the proper construction of the LPA s 520(7) 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 the court for the attendance of a witness for examination or production of documents in a civil action.[41] It does not go so far as to adopt the provisions of the rules of the court which govern, for example, the issue, form, service, and relevantly, the procedure for setting aside a subpoena to produce, or granting other relief in respect of it.
[41] Amey v Long (1808) 9 East 473 [486]. It was common ground that the reference to a subpoena ad test in LPA s 520(7) is a shorthand reference to a subpoena ad testificandum, see ts 45 ‑ 46 (23 November 2018).
When read in context, the LPA s 520(7) imposes a compulsory obligation, and s 520(8) goes on to prescribe, among other things, the consequence for non‑observance that obligation.
I therefore find that the application made on behalf of Mr Lourey that the court set aside the summons to produce documents, or part of it, or grant other relief in respect of it, pursuant to the RSC O 36B r 8A(2)(a) and (c), must fail.
Collateral review
I now turn to the challenge made on behalf of Mr Lourey to the legality of the administrative act, that is, the issue of the summons.
The argument made on behalf of Mr Lourey
Mr Lourey points to the terms of the letter dated 2 May 2017, by which the LPCC confirmed that it was investigating the conduct of Mr Lourey on its own initiative pursuant to the LPA s 421, and contends as follows.[42]
The problem with the Summons is that it requests numerous documents which are not relevant to the complaint as particularised in your letter of 2 May 2017. Your letter of 2 May 2017 defined a number of terms in the first paragraph, then at pp 2-3 referred to those terms. Matching those references with the definitions it is evident that the complaint you are pursuing commences with the "WorkCover proceedings" (as defined). These proceedings, as your letter confirms, commenced in late 2013 and proceeded throughout 2014.
Despite this, your summons requests documents going back to 1998.
[42] Mr Lourey's letter to the LPCC dated 18 July 2017, annexed to the affidavit of Jillian Denise Dixon filed on 2 July 2018, as 'JDD13'.
That is, Mr Lourey argues that the complaint investigation is limited in scope to possible unsatisfactory professional conduct or professional misconduct in:
1.commencing and prosecuting the WorkCover proceedings in circumstances where:
(a)there was no reasonable basis for the WorkCover proceedings; and
(b)the WorkCover proceedings were an abuse of process, oppressive, unfair, unconscionable and scandalous to the administration of justice.
2.commencing and prosecuting the District Court proceedings in circumstances where:
(a)there was no reasonable basis for the District Court proceedings; and
(b)the District Court proceedings were an abuse of process, oppressive, unfair, unconscionable and scandalous to the administration of justice.
3.commencing and prosecuting the Supreme Court appeal in circumstances where:
(a)there was no reasonable basis for the Supreme Court proceedings; and
(b)the Supreme Court proceedings were an abuse of process, oppressive, unfair, unconscionable and scandalous to the administration of justice.
4.Acting in the Supreme Court appeal when you knew, or ought to have known, that there was a conflict of interest, or potential conflict of interest, between your own interests and the interests of Mr Johnson.
Mr Lourey complains that the summons requires production of documents created in the period between 1998 and 2013, that is, prior to the commencement of the WorkCover proceedings. Counsel summarised the position pressed on behalf of Mr Lourey as follows.[43]
It's clear that a collateral attack involves a jurisdictional error of law, as suggested at [18] of Marrapodi, and we say that the jurisdictional error is really that the summons has been issued, because of its scope, in a form which is ultra vires, as used to be said, or beyond power. So the power is only to issue a summons in relation to a matter which is under investigation and, once [it is] established what the parameters of the investigation are, there's no power to issue a summons which would throw a net broader than what is necessary in order to conduct an investigation as identified.
…
or, to use the other head of challenge which my learned friend adverted to, that no reasonable person could have reached the conclusion that it was within power to issue a subpoena in such broad terms as has been issued.
What is the conduct under investigation?
[43] ts 41 and 43 (23 November 2018).
As a first step, I turn to consider the 2 May 2017 letter and what is said to be the conduct under investigation.
The letter dated 2 May 2017 states that '[the] conduct being investigated arises from the matters and actions referred to in the District Court decision as an abuse of process, oppressive, unfair, harassment, unconscionable and scandalous to the administration of justice; in particular possible unsatisfactory professional conduct or professional misconduct in' undertaking the conduct identified at pars 1 – 4 of the letter. (Emphasis added.)
The effect of Mr Lourey's submission is to give the words 'in particular' a limiting function, so that the complaint investigation extends only to the conduct identified at pars 1 – 4 of the letter dated 2 May 2017.
There is no question that the complaint investigation extends to the conduct identified at pars 1 – 4 of the letter. That is, whether there was possible unsatisfactory conduct or professional misconduct in the commencement and prosecution of the WorkCover proceedings, the District Court Proceedings, and the Supreme Court proceedings; and in acting in the Supreme Court appeal, in the circumstances described at pars 1 ‑ 4 of the letter dated 2 May 2017.
However, having regard to the letter as a whole, I find that a reasonable and proper reading of the fifth paragraph of the second page is that the words 'in particular' are words of emphasis, alternatively words used to identify members of a class. They are not words of limitation. Further, the conduct which arises from the matters and actions referred to in the District Court decision as an abuse of process, oppressive, unfair, harassment, unconscionable and scandalous to the administration of justice, include conduct beyond that identified 'in particular' in pars 1 ‑ 4 of the letter.
In the appeal made to the District Court by Chapmans Barristers & Solicitors, on behalf of Mr Johnson, the respondent to that appeal (Denwest Nominees), filed a notice of contention which indicated that the respondent would argue that the decision of Arbitrator Holyoak‑Roberts should be upheld on grounds not relied upon by the arbitrator. Ground 2 of the notice of contention was as follows.[44]
2.That the Appellant's claim for compensation could not succeed because it constituted an abuse of process of the WorkCover Arbitration Service because it was an attempt to relitigate issues which were the subject of a previous agreement and the Local Court Judgement [sic] given in respect of that agreement.
[44] Johnson v Denwest Nominees Pty Ltd t/as Cunderdin Roadhouse [2017] WASCA 200 [69].
Denwest Nominees argued '…that when regard is had to the whole of the proceedings, they have been pursued by the appellant in an oppressive and unconscionable manner and as such constitute an abuse of process.'[45]
[45] John v Denwest Nominees Pty Ltd t/as Cunderdin Roadhouse [2015] WADC 22 [71].
Although it was not necessary for Birmingham DCJ to do so in light of his resolution of the grounds of appeal, his Honour went on to consider and uphold ground 2 of the notice of contention. [46]
[46] As observed by the Court of Appeal in Johnson v Denwest Nominees Pty Ltd t/as Cunderdin Roadhouse [71]; John v Denwest Nominees Pty Ltd t/as Cunderdin Roadhouse [69] ‑ [105].
At [72] of his Honour's decision, Birmingham DCJ records that in support of the submission, Denwest Nominees pointed to a number of matters, including the conduct of Mr Johnson in:
•electing to pursue the claim in compensation to judgment of the Magistrate's Court;
•thereafter pursuing enforcement of the judgment through the various processes against the directors of the respondent, including pursuing two unsuccessful appeals, to the District Court and the Supreme Court;
•at the mediation on 13 July 2011 of the District Court action, entering into a settlement with Mrs Walker, which included the giving of mutual releases from each party and resulting in Mrs Walker releasing the appellant from adverse cost orders, obtained against him in the two unsuccessful appeals initiated on the earliest occasion;
•representing through his counsel at that mediation that:
•no further claims arising out of or in connection with the workers compensation claim by the appellant would ever be brought against her in the future; and
•the matter was once and for at an end and brought to an end all matters the subject of the history of the litigation between the parties.
•inducing Mrs Walker to believe that all claims against her for personal liability, in respect of the worker's compensation claim had been released and discharged;
•not disclosing at the time of entering into that settlement agreement, an intention to have the respondent, a de-registered company, reinstated in order to make a fresh claim for compensation under the Act;
•Commending the 2013 proceedings and thereby exposing Mrs Walker to personal liability under s 174AA of the Act, insofar as the respondent has no means to pay the amount that might be ordered under s 58;
•Contemporaneous with the application to WorkCover continuing to seek enforcement of the Magistrates Court's judgment in respect of the same sum claimed. On 16 February 2015 the appellant's solicitors served on the respondents solicitors a notice, calling upon the director of the respondent, namely Mrs Walker, to attend the Magistrates Court in Hay Street, Perth on 20 March 2015 at 9.30 for a means inquiry, in an effort to see what steps could be taken to satisfy the judgment that was obtained some 13 years ago.
The approach adopted by Birmingham DCJ when considering the matters raised in the notice of contention was as set out at [73] of his Honour's reasons:
It is sufficient that I deal with these matters generally. There is a commonality in the conduct complained of and the total compass of that conduct is appropriately embraced in the concept of whether the proceedings issued by the appellant are an abuse of process.
Further, his Honour at [76] stated that '[in] the context of the proceedings, it [was] appropriate to consider the whole of the appellant's conduct subsequent to his employment with the respondent for a six week period in July – August 1995.'
As observed by the Court of Appeal in Johnson v Denwest Nominees Pty Ltd t/as Cunderdin Roadhouse at [93] '[it] is clear that the primary judge did take these matters into account in determining whether the application to the arbitrator constituted an abuse of process.'
Having considered the whole of the conduct, his Honour went on to find as follows.[47]
[47] John v Denwest Nominees Pty Ltd t/as Cunderdin Roadhouse [77] ‑ [87].
It is apparent that the appellant elected to pursue the claim for compensation to judgment following conciliation in the Magistrates Court and obtained judgment. Thereafter he pursued enforcement of that judgment through various processes including proceedings issued against the directors of the respondent including pursuing unsuccessful appeals to the District Court and subsequently to the Court of Appeal.
In proceedings initiated by the appellant against Mrs Walker – a director of the respondent at a time when that company was defunct in District Court action CIV 2211 of 2010 the appellant sought to re-litigate the same issues, that is to the say the payment of wages claimed for the relevant periods and agreed in the sum of $11,331.60.
It is apparent that at the mediation conference on 13 July 2011 that matter was settled as were all matters between Mrs Walker and the appellant and mutual releases given. The respondent was then defunct and not capable of being a party to those proceedings. The cause of action sought to be enforced against Mrs Walker was in respect of the liability of the respondent to the appellant.
I am satisfied that on the proper construction of that agreement between the appellant and Mrs Walker it was the common intention of the parties that the benefit of the settlement agreement concluded would inure to the respondent if so required.
In my view 'it went without saying' that the release granted by Mrs Walker in respect of the adverse costs orders against the appellant in two unsuccessful appeals - and her costs to date in the District Court proceedings in which the appellant seemingly enjoyed little prospect of success - brought to an end all of the proceedings arising out of or in connection with the appellant's employment with the respondent in July-August 1995.
In the course of the proceedings before the arbitrator, statutory declarations completed by Mrs Walker and her solicitor Mr Dale deposed to events at the pre-trial conference held in relation to the District Court action and to matters discussed. The appellant's solicitor objected to such evidence on the basis that it disclosed without prejudice communications.
At the hearing below the matter was resolved on the basis of those declarations would be received into evidence and the counsel for the respondent correction, counsel for the appellant, who was present at the mediation proceedings, would not be permitted to appear or cross examined insofar as he might necessarily be a witness.
The matter was resolved on the basis that the counsel for the appellant did not seek to cross examine, or put in issue, the substance of the material contained in the statutory declarations by Mrs Walker and Mr Dale.
I questioned counsel for the appellant in relation to his position in relation to that matter. His answers were a little less than forthcoming. I am satisfied, that in the absence of any material to contradict the contents of those declarations that the contents should be accepted as a true and faithful account of what occurred at the mediation proceedings that resulted in a settlement of District Court action CIV2211 of 2010.
In my opinion, the learned arbitrator was wrong to confine the use of those communications and that material and to construe the outcome of the agreement reached as only relating to the proceedings between the appellant and Mrs Walker.
That evidence was relevant and admissible in relation to whether the appellant in these proceedings was acting oppressively and the conduct of the proceedings an abuse of process. The evidence supports the respondent's claim that the appellant is, by reasons of the settlement of the action, estopped from commencing any proceedings that might revisit the same claim upon Mrs Walker.
The reasons published reveal that Birmingham DCJ had regard to the broader context in which the various steps taken by Mr Johnson occurred, and the Court of Appeal found that his Honour was entitled to do so.[48] The whole of the conduct grounds his Honour's decision to uphold ground 2 of the notice of contention.
[48] Johnson v Denwest Nominees Pty Ltd t/as Cunderdin Roadhouse [108].
Having regard to the letter dated 2 May 2017 as a whole, and to the decision of Birmingham DCJ, I find that a reasonable and proper reading of the fifth paragraph of the letter is that the conduct being investigated by the LPCC includes conduct beyond that which is identified 'in particular' in pars 1 ‑ 4 of the letter. The conduct being investigated by the LPCC is the action taken on behalf of Mr Johnson subsequent to his employment with Denwest Nominees for a six week period in July to August 1995.
Was the issue of the summons authorised by the LPA s 520(1)?
Mr Lourey is not entitled to a merits review by the court of the exercise of a discretionary power by an investigator to issue a summons under the LPA s 520(1). It is for the LPCC, and not the court, to determine how the investigation is to be conducted.
While the LPA does provide a regime for objection to be taken by the lawyer on the ground that giving the information may tend to incriminate him or her,[49] it 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.[50]
[49] LPA s 521(3).
[50] A v Independent Commission Against Corruption (2014) 88 NSWLR 240 [141].
A decision to issue the summons, and its terms, can only be challenged on grounds appropriate to judicial review, including proper purpose or unreasonableness in the sense described by the High Court in Minister for Immigration and Citizenship v Li.[51]
[51] Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; adopting the approach taken by Bathurst CJ in A v Independent Commission Against Corruption [5] (Bathhurst CJ), where his Honour also referred to Melbourne Home of Ford Pty Ltd v Trade Practices Commissions (No 3) [1980] FCA 94, 174 ‑ 175.
The '… courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision‑maker.'[52]
[52] Minister for Immigration v Li [66].
As noted in in Minister for Immigration and Citizenship v Li at [67], 'The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.'[53]
Statutory framework
[53] Minister for Immigration v Li [67].
The LPA s 421(1) provides that the LPCC may, on its own initiative, investigate the conduct of an Australian legal practitioner if the LPCC has reasonable cause to suspect the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.
The scope of the investigation that the LPCC may undertake is defined by the conduct of the practitioner which gives rise to that suspicion, although it will extend to matters reasonably incidental and associated with that conduct.[54]
[54] Outline of submissions filed on behalf of the LPCC on 7 November 2018 par 7, citing Finlayson v Legal Practitioners Conduct Board [2012] SASC 77; (2012) 112 SASR 549.
As noted above, the LPA s 520(1) facilitates the carrying out of a complaints investigation by empowering an investigator to compel the lawyer the subject of a complaint investigation to produce any specified document (or copy of the document); to provide written information; and to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner.
The term 'complaint investigation' means an investigation initiated by the LPCC under pt 13 of the LPA, or the investigation of a complaint under that Part.[55]
[55] Legal Profession Act 2008 s 517(1).
It is common ground between the parties that the power of an investigator to issue a summons pursuant to s 520 is to be exercised for the purpose of carrying out a complaint investigation in relation to an Australian lawyer.[56]
[56] ts 41 and 51 (23 November 2018); Further outline of submissions filed on behalf of Mr Lourey on 31 October 2018 pars 10 – 12; Etter v Legal Profession Board of Tasmania [2018] TASFC 2 [35].
For the following reasons, I find that the issue of the summons was authorised by the LPA s 520(1), and that there has been no abuse of statutory power. The summons does not offend the legal standard of reasonableness in the sense described by the High Court in Minister for Immigration and Citizenship v Li.
Proper purpose
First, the LPCC has the benefit of the presumption in the LPA s 593(7).
The LPA s 593(7) provides that a document signed by a Law Complaints Officer and purporting to set out the nature of the power exercised and the manner in which it was exercised, is, in the absence of proof to the contrary, proof of the matters stated in it.
In this case, the summons expressly provides that it was issued pursuant to the LPA s 520(1)(a), 'for the purpose of carrying out a complaint investigation (being an investigation initiated by the Complaints Committee under Part 13 of the Act) in relation to an Australian lawyer, Michael Joseph Lourey, …'
In the absence of proof to the contrary, I am satisfied that the summons was issued for the purpose of carrying out a complaint investigation in relation to Mr Lourey.
Reasonable cause to suspect unsatisfactory professional conduct or professional misconduct
Secondly, the LPCC had reasonable cause to suspect the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct, and thus the power of the LPCC under the LPA s 421(1) to investigate the conduct of an Australian legal practitioner, was enlivened.
In this regard, I accept the position advanced on behalf of the LPCC that the findings of the District Court in John v Denwest Nominees Pty Ltd t/as Cunderdin Roadhouse gave reasonable cause to suspect that Mr Lourey may have engaged in unsatisfactory professional conduct or professional misconduct.[57]
[57] Outline of submissions filed on behalf of the LPCC on 7 November 2018 par 21.
Further, for the reasons identified by the Court of Appeal, the institution and prosecution of the appeal to the Court of Appeal from the District Court Appeal proceedings was capable, as at 2 May 2017, of giving rise to a reasonable suspicion that the appeal to the Court of Appeal also constituted an abuse of process. That was particularly so when regard is had to the limited scope of the appeal after 11 November 2015.[58]
[58] Outline of submissions filed on behalf of the LPCC on 7 November 2018 par 23.
Given the limited scope of the appeal and its likely cost, there was an arguable conflict between the interests of Mr Johnson in pursuing the appeal concerning the finding that he had engaged in an abuse of process, and those of his lawyers, whom had conducted the WorkCover Proceedings and the District Court appeal proceedings on his behalf.[59]
[59] Outline of submissions filed on behalf of the LPCC on 7 November 2018 par 24.
I also accept the submission made on behalf of the LPCC that each of these matters was capable of giving rise to a finding that Mr Lourey had engaged in unsatisfactory professional conduct or professional misconduct, because:
(a)the Legal Profession Conduct Rules 2010 (WA) r 6(2) relevantly provides that:
'A practitioner must not engage in conduct, in the course of providing legal services or otherwise, which -
…
(b)may be prejudicial to, or diminish public confidence in, the administration of justice; or
(c)may bring the profession into disrepute';
(b)a practitioner owes a duty to the court not to commence and prosecute proceedings which constitute an abuse of process; and
(c)in the case of the appeal to the Court of Appeal, in addition to the conflict of interests between the interests of Mr Johnson and those of Chapmans Barristers & Solicitors, a practitioner should generally not act in proceedings in which his professional conduct is or will likely be called into question.[60]
[60] Outline of submissions filed on behalf of the LPCC on 7 November 2018 par 26. See Legal Profession Complaints Committee v Amsden [2014] WASAT 57 at [47] – [48], cited in the outline of submissions par 26.2. See also Hempseed v Ward [2013] QSC 348 [42]; Clay v Karlson (1997) 17 WAR 493, 496, cited in the outline of submissions par 26.3.
It is appropriate however that I make plain that I make no positive finding as to whether Mr Lourey had in fact engaged in unsatisfactory professional conduct or professional misconduct.
The terms of the summons
Thirdly, the summons is concordant with the scope of the complaint investigation, as properly understood.
Mr Lourey submits that the terms of s 520 restrict the power of the Law Complaints Officer to issue a summons in circumstances such as this matter, to a situation requiring an Australian lawyer to (only) provide documents that are relevant to the complaint investigation that is underway.[61] As noted above, Mr Lourey's complaint is that '… the power is only to issue a summons in relation to a matter which is under investigation and, once [it is] established what the parameters of the investigation are, there's no power to issue a summons which would throw a net broader than what is necessary in order to conduct an investigation as identified.'
[61] Further outline of submissions filed on behalf of Mr Lourey on 31 October 2018 par 11, citing Etter v Legal Profession Board of Tasmania.
For the reasons set out above, I find that the complaint investigation is not limited to the particular conduct identified at pars 1 – 4 of the letter dated 2 May 2017; and the summons was not 'beyond power' by reason of it 'throwing a broader net' than the conduct emphasised at pars 1 ‑ 4.
Neither unreasonableness or irrationality are established
Fourthly, I accept the submission made on behalf of the LPCC that it is not possible to say that there was no rational connection between the investigation being conducted by the LPCC and its issue of the summons.[62]
[62] As submitted on behalf of the LPCC at par 27 – 28 of the outline of submissions filed on behalf of the LPCC on 7 November 2018.
Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.[63] In this case, it cannot fairly be said that there is no discernible and intelligible justification for the decision to issue the summons, or the decision to cast it in terms which required production of Mr Lourey's entire original files and all documents relating to Chapmans Barristers & Solicitors acting in connection with and arising from, the 'Workers' Compensation claim', the 'Conciliation agreement', and seeking to obtain payment of the 'Unpaid Wages' (as those terms are defined in the summons).
[63] Minister for Immigration v Li [76].
For the reasons set out above, I find that the conduct being investigated by the LPCC extends to conduct prior to the commencement of the WorkCover proceedings.
Further, I accept that at the time the summons was issued, the extent of Mr Lourey's knowledge of the history of the matters outlined in the reasons of decision of Birmingham DCJ, and that of employed practitioners responsible for the conduct of the proceedings on behalf of Mr Johnson, and when that knowledge was acquired by each of them, was relevant to the determination of the questions whether the institution or prosecution of any of the matters identified by the LPCC in its letter of 2 May 2017 should have been recognised by the relevant practitioners, including Mr Lourey, to potentially involve an abuse of process or a breach of r 6(2) of the Legal Profession Conduct Rules.
The complete files are also likely to reveal the context in which the various steps taken by Mr Johnson occurred. If not relevant (as that concept is understood in an investigatory context) to a complaint investigation, the documents which reveal context must be reasonably incidental to or associated with that conduct being investigated. In this regard, I accept the LPCC's submission that the scope of the investigation is defined by the conduct of the practitioner which gives rise to the suspicion, although it will extend to matters reasonably incidental to or associated with that conduct.[64]
[64] Finlayson v Legal Practitioners Conduct Board [27]; Outline of submissions filed on behalf of the LPCC on 7 November 2018 par 7.
Finally, for completeness, I note that if I am wrong as to the scope of the complaint investigation, and if it is curtailed as suggested by Mr Lourey, I would still find no jurisdictional error on grounds of unreasonableness or irrationality in the issue of the summons.
I accept the LPCC's submission that:
(a)the principles to be applied in determining relevance in an investigatory context are much broader than those used to determine admissibility in adversarial litigation;[65] and
(b)the decision to issue the summons can only be characterised as unreasonable in the relevant sense if the terms of the summons exceeded what was necessary for the purpose for which it was issued,[66]
and I repeat my findings above, in particular [115] and [116].
[65] Outline of submissions filed on behalf of the LPCC on 7 November 2018 par 11; citing Melbourne Home of Ford Ltd v Trade Practices Commission 173 ‑ 175; A v Independent Commission Against Corruption [36] ‑ [38], [132] ‑ [135]. See also the further outline of submissions filed on behalf of Mr Lourey on 31 October 2018 par 17, citing Etter v Legal Profession Board of Tasmania [24] quoting the Court below in Legal Profession Board of Tasmania v Etter [2017] TASSC 77 [58].
[66] Outline of submissions filed on behalf of the LPCC on 7 November 2018 par 3, citing Minister for Immigration v Li [23], [65] ‑ [71].
Conclusion
For these reasons, I find that the application made pursuant to the RSC O 36B must fail. The rule does not apply to a summons issued by an investigator under LPA s 520(1)(a).
I also find that the challenge made on behalf of Mr Lourey to the legality of the administrative act must fail. The issue of the summons was authorised by the LPA s 520(1), and that there has been no abuse of statutory power.
Accordingly, the applications will be dismissed. Taxed costs should also follow that event.
Schedule A – Summons issued under Legal Professions Act 2008 (WA) s 520(1)(a) to Mr Michael Joseph Lourey
Schedule B – Letter from the Legal Profession Complaints Committee to Mr Lourey dated 2 May 2017
Schedule C – Legal Profession Act 2008 (WA) s 520
520.Requirements in relation to complaint investigations
(1)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.
(2)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 person, require an associate or former associate of a law practice of which the lawyer is or was an associate or any other person (including, for example, an ADI, auditor or liquidator but not including the lawyer) to give the investigator either or both of the following -
(a)access to the documents relating to the affairs of the lawyer the investigator reasonably requires;
(b)information relating to the affairs of the lawyer the investigator reasonably requires.
(3)An investigator may require that information required to be given under subsection (1) or (2) be verified on oath or affirmation or by statutory declaration.
(4)An investigator may administer an oath or affirmation for the purposes of subsection (3).
(5)A person who is subject to a requirement under subsection (1), (2) or (3) must comply with the requirement.
Penalty: a fine of $5 000.
(6)A requirement imposed on a person under subsection (1), (2) or (3) must be notified in writing to the person and must specify a reasonable time for compliance.
(7)A summons issued under this section has the same effect as a subpoena ad test or duces tecum, as the case may be, issued by the Supreme Court for the attendance of a witness for examination or production of documents in a civil action.
(8)Obedience to, or non‑observance of, a summons issued under this section may be enforced and punished by a judge in chambers in the same manner as in the case of obedience to, or non‑observance of, a subpoena issued by the Supreme Court.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IH
Research Associate to the Honourable Acting Justice Strk
5 MARCH 2019
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