Legal Profession Complaints Committee v Rayney
[2017] WASCA 78
•26 APRIL 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LEGAL PROFESSION COMPLAINTS COMMITTEE -v- RAYNEY [2017] WASCA 78
CORAM: MARTIN CJ
MURPHY JA
CORBOY J
HEARD: 22 FEBRUARY 2017
DELIVERED : 26 APRIL 2017
FILE NO/S: CACV 3 of 2017
BETWEEN: LEGAL PROFESSION COMPLAINTS COMMITTEE
Appellant
AND
LLOYD PATRICK RAYNEY
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :JUSTICE J C CURTHOYS (PRESIDENT)
Citation :LEGAL PROFESSION COMPLAINTS COMMITTEE and RAYNEY [2016] WASAT 142
File No :VR 173 of 2015
Catchwords:
Appeal against decision of State Administrative Tribunal dismissing proceedings brought by the Legal Profession Complaints Committee against the respondent for professional misconduct as an abuse of process - Where Legal Practice Board had cancelled respondent's practising certificate - Where respondent had successfully brought proceedings in the Tribunal for review of the Board's decision - Whether the Committee's proceedings constituted an abuse of process or were estopped because the Committee was seeking to pursue matters which the Board could and should have raised in its notice cancelling the respondent's practising certificate and its defence of the respondent's review proceedings - Whether the Committee's proceedings constituted an abuse of process because they could and should have been brought in tandem with the respondent's review proceedings - Whether the Committee was denied procedural fairness - Whether the Tribunal failed to take into account relevant considerations - Relationship between the Legal Practice Board and the Legal Profession Complaints Committee
Legislation:
Legal Profession Act 2008 (WA)
State Administrative Tribunal Act 2004 (WA)
Surveillance Devices Act 1998 (WA)
Telecommunications (Interception and Access) Act 1979 (Cth)
Result:
Leave to appeal granted
Appeal allowed
Decision of the State Administrative Tribunal dismissing the appellant's proceedings set aside
Respondent's application to dismiss the appellant's proceedings dismissed
Matter remitted to the State Administrative Tribunal differently constituted for substantive hearing and determination
Category: A
Representation:
Counsel:
Appellant: Mr J C Vaughan SC & Mr T J Porter
Respondent: Mr M L Bennett
Solicitors:
Appellant: Legal Profession Complaints Committee
Respondent: Bennett + Co
Case(s) referred to in judgment(s):
Aldi Stores Ltd v WSP Group Plc [2007] EWCA Civ 1260; [2008] 1 WLR 748
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Champerslife Pty Ltd v Manojlovski & Anor [2010] NSWCA 33; (2010) 75 NSWLR 245
Coffey v Secretary, Department of Social Security [1999] FCA 375; (1999) 86 FCR 434
Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407
Federal Commissioner of Taxation v McCabe (1990) 26 FCR 431
Gill v Walton (1991) 25 NSWLR 190
Guidice v Legal Profession Complaints Committee [2014] WASCA 115
Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315
In the matter of HIH Insurance Ltd (in liq); De Bortoli Wines (Superannuation) Pty Ltd v McGrath [2014] NSWSC 774
Johnson v Gore Wood & Co [2002] 2 AC 1
Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130
Legal Profession Complaints Committee and Rayney [2016] WASAT 142
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271
Rayney and Legal Practice Board of Western Australia [2016] WASAT 7
Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109
Reichel v Magrath (1889) 14 App Cas 665
Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331
Slaveska v State of Victoria [2015] VSCA 140
Stuart v Goldberg Linde (a firm) [2008] ECWA Civ 2; [2008] 1 WLR 823
The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346
Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Young v Public Service Board [1982] 2 NSWLR 456
MARTIN CJ:
Summary
On 9 October 2015 the applicant, the Legal Profession Complaints Committee (the Committee), commenced proceedings in the State Administrative Tribunal (the Tribunal) against the respondent, Lloyd Patrick Rayney, who is a legal practitioner. In those proceedings the Committee sought a finding that Mr Rayney had engaged in professional misconduct (the Committee's proceedings). It will be necessary to identify the context in which those proceedings were commenced in the Tribunal in due course. On 19 December 2016 the Tribunal dismissed the Committee's proceedings on the ground that they were an abuse of process, for reasons which will be considered in detail below. The Committee applied for leave to appeal from that decision. For the reasons which follow, the application for leave to appeal should be granted, the appeal allowed, the decision of the Tribunal dismissing the proceedings commenced by the Committee set aside, Mr Rayney's application to dismiss the Committee's proceedings dismissed and the proceedings remitted to the Tribunal differently constituted for substantive hearing.
A chronology of relevant events
Much could and indeed has been written about the life of Mr Rayney since the death of his wife, Corryn, in August 2007. The chronology which follows will be limited to matters which have a direct bearing upon the issues which arise in this appeal.
In September 2007 Mr Rayney was charged with an offence under the Surveillance Devices Act 1998 (WA). In September 2008 that charge was withdrawn and Mr Rayney was charged with two offences under the Telecommunications (Interception and Access) Act 1979 (Cth) (the TIA charges).
In June 2012 the Committee opened a file with respect to an investigation of Mr Rayney's conduct. However, that investigation was deferred pending the trial of Mr Rayney on a charge that he wilfully murdered his wife, which commenced in July 2012. Mr Rayney was acquitted of that charge on 1 November 2012. The State appealed against that acquittal on 22 November 2012. That appeal was dismissed in September 2013.
In the meantime, on 16 November 2012, after Mr Rayney's acquittal but before the commencement of the State's appeal, the Legal Practice Board of Western Australia (the Board) gave written notice to Mr Rayney of its intention to cancel his practising certificate on the grounds specified in that notice, which was issued pursuant to s 56(2) of the Legal Profession Act 2008 (WA) (the LPA).
On 10 December 2012, Mr Rayney undertook to the Board that he would not practice law without giving a minimum of 42 days prior notice. Mr Rayney requested that the Board defer consideration of the question of whether or not his practising certificate should be cancelled and refrain from requiring him to file submissions with respect to the matters raised by the Board until such time as the Board met to determine that issue and in return for that undertaking the Board undertook that it would not take any action on its notice of intention to cancel Mr Rayney's practising certificate without first giving 21 days notice to Mr Rayney.
By letter dated 16 December 2013, the Committee gave Mr Rayney notice that it was investigating his conduct pursuant to s 421 of the LPA. In that letter eleven matters of possible misconduct were identified including, relevantly, illegal conduct by contravening the Surveillance Devices Act relating to covert recordings 'by the use of a dictaphone' of conversations with Corryn Rayney and others; and swearing a false affidavit and giving false testimony before Magistrate Flynn in November 2009 in connection with Mr Rayney's claims for legal professional privilege in respect of those recordings of conversations which were said to have been made in breach of the Surveillance Devices Act. In that letter the Committee sought an update of the current position relating to the TIA charges and a copy of the indictment and prosecution brief relating to those charges.
In February 2014 Mr Rayney's solicitors responded to the letter from the Committee declining to provide a copy of the indictment or the prosecution brief (for reasons enunciated in the letter) and proposing that the Committee investigation should be deferred until the TIA charges had been determined. The Committee did not press its request for documentation and did not require Mr Rayney to respond to the specific matters identified in its letter of 16 December 2013, thereby, in effect, acquiescing to Mr Rayney's request.
Mr Rayney was tried and acquitted of the TIA charges in April and May 2015. On 8 May 2015, which was the day after the TIA charges were dismissed, Mr Rayney's solicitors wrote to the Board inquiring what steps needed to be taken for Mr Rayney to resume legal practice. The letter also referred to the notice given by the Committee to the effect that the Committee was investigating Mr Rayney's conduct pursuant to s 421 of the LPA. In the letter, the solicitors inquired if they should write separately to the Committee, and whether the Committee's investigation was separate from the issues under consideration by the Board.
On 18 May 2015 the Board responded to that letter advising that the first step which must be taken by Mr Rayney to resume practice was to give to the Board the notice required pursuant to his prior undertaking, and that the matters under consideration by the Committee were separate, and that any inquiry with respect to those matters should be directed to the Committee.
On the same day (18 May 2015) Mr Rayney's solicitors wrote to the Board giving notice that he intended to attempt to re‑engage in legal practice in 42 days time.
On 20 May 2015 the Committee wrote to Mr Rayney's solicitors referring to the deferral of the Committee's investigation pending the determination of the TIA charges, noting that those charges had been determined, and requesting Mr Rayney's response to each of the matters of alleged misconduct identified in its letter of 16 December 2013, other than three of those matters, which related specifically to the subject matter of the TIA charges. In relation to those three matters, the Committee requested copies of the trial transcript, indictment, prosecution brief, witness statements and exhibits relating to the trial of the TIA charges. The letter requested that the submissions be provided by 11 June 2015, and that the materials relating to the trial of the TIA charges be provided by 27 May 2015.
On 28 May 2015 Mr Rayney's solicitors wrote to the Committee requesting an extension of time for the provision of the submissions and materials, and querying the Committee's need for the materials relating to the trial of the TIA charges.
By letter dated 2 June 2015, the Board wrote to Mr Rayney confirming the receipt of notice to the effect that he proposed to re‑engage in legal practice and enclosing another notice of its intention to cancel his practising certificate on the grounds set out in that notice, which was said to be in substitution for the notice previously issued by the Board on 16 November 2012. Those grounds included various aspects of Mr Rayney's alleged conduct, including the three matters to which the Committee had referred in its letter to Mr Rayney of 16 December 2013 and which I have identified at [7] above. The letter specified that any representations that Mr Rayney wished to make in relation to the cancellation of his practising certificate must be received by the Board not later than 24 June 2015.
On 8 June 2015 Mr Rayney's solicitors wrote to the Committee requesting an extension of time within which to respond to the matters raised by the Committee, in light of the notice issued by the Board, a copy of which was provided to the Committee by Mr Rayney's solicitors.
On 9 June 2015 the Committee wrote to Mr Rayney's solicitors reiterating its request for copies of the documents relating to the TIA charges and seeking information with respect to the precise extension of time sought by Mr Rayney in order to respond to the matters under investigation by the Committee.
By letter dated 11 June 2015 Mr Rayney's solicitors advised the Committee that documents relating to the TIA charges would be provided and again sought an extension of time within which to respond to the matters raised in the Committee's letter of 16 December 2013, without identifying the extra time sought. The Committee responded to that letter by letter of the same date, agreeing to extend the time for a response to the matters identified in its letter of 16 December 2013 (other than the three matters relating specifically to the TIA charges) to 8 July 2015.
On 12 June 2015 Mr Rayney's solicitors provided the Committee with the transcript, prosecution brief and exhibits relating to the trial of the TIA charges.
By letter dated 24 June 2015 to Mr Rayney's solicitors, the Committee advised that it was continuing to investigate the three matters relating to the TIA charges identified in its letter of 16 December 2013, and that the submissions to be provided by Mr Rayney should therefore address all matters identified in the Committee's letter of 16 December 2013.
On 24 June 2015 Mr Rayney provided the Board with his written representations in response to its notice of intention to cancel his practising certificate. On the same day, Mr Rayney's solicitors wrote to the Committee advising that he claimed legal professional privilege in relation to documents which the Committee had sought from a number of legal firms which had previously acted for him. On 26 June 2015 Mr Rayney's solicitors wrote again to the Committee seeking a response to that letter. In the days which followed, correspondence was exchanged between the Committee and Mr Rayney's solicitors relating to the inspection by the Committee of a supplementary appeal book relating to earlier appellate proceedings involving Mr Rayney's claims for legal professional privilege.
On 30 June 2015 Mr Rayney's solicitors provided the Committee with copies of the materials which had been provided to the Board on 24 June 2015 in response to its notice of intention to cancel Mr Rayney's practising certificate.
On 7 July 2015 Mr Rayney's solicitors provided the Committee with copies of further materials provided to the Board in response to its notice of intention to cancel Mr Rayney's practising certificate. Further, by letter to the Committee dated 9 July 2015, Mr Rayney's solicitors provided his submissions in response to the eleven matters identified in the Committee's letter of 16 December 2013.
On 14 July 2015 the Committee requested copies of certain documents from Mr Rayney's solicitors, which were provided to the Committee on 16 July 2015.
On 17 July 2015 the Board gave Mr Rayney notice of its decision that his practising certificate would be cancelled on and from 21 July 2015. The notice, which was served pursuant to s 56(4) of the LPA, stated the reasons for the Board's decision. Those reasons did not include any reference to the three matters to which the Committee had referred in its letter to Mr Rayney of 16 December 2013 which I have identified at [7] above.
On 24 July 2015 Mr Rayney applied to the Tribunal (Mr Rayney's proceedings) for review of the Board's decision to cancel his practising certificate. By letter dated 28 July 2015, the Committee wrote to Mr Rayney's solicitors requesting a copy of that application. A copy was provided to the Committee by email from Mr Rayney's solicitors dated 30 July 2015.
On 30 July 2015 the Committee wrote to Mr Rayney's solicitors referring to the overlap between the matters under investigation by the Committee and the matters raised for determination by Mr Rayney's proceedings. In that context the Committee requested that the interim orders sought by Mr Rayney be varied to include the capacity for it to obtain information relating to Mr Rayney's proceedings, advising that the request was made 'in the interests of its investigation' and was 'not indicative of whether the Committee might, at some stage, seek some role in the review proceedings themselves'.[1] Mr Rayney's solicitors responded to that letter on 31 July 2015 recording that they had been 'concerned for some time at the overlap between' the Committee's investigation and the matters under review by the Tribunal. In the letter, the solicitors foreshadowed that if the Committee were to seek to intervene in Mr Rayney's review proceedings, Mr Rayney would submit that the Committee should not be separately represented from the Board.
[1] Letter from Committee to Bennett + Co, 30 July 2015.
On 10 August 2015 the Committee wrote to Mr Rayney's solicitors advising that the Committee was yet to determine any aspect of the matters it was investigating, but advising that if the Committee did decide to refer conduct of Mr Rayney to the Tribunal pursuant to s 424(1)(c) and s 428 of the LPA, those matters might overlap with the matters raised in Mr Rayney's proceedings and might also involve a broader range of conduct. The letter specifically noted that the matters the subject of investigation by the Committee were broader in ambit than the matters raised in Mr Rayney's proceedings. In that context the author of the letter wrote:[2]
The Committee is concerned that the present circumstances may result in a multiplicity of hearings. Obviously, in terms of the public interest and the interests of the parties, it would be highly desirable to avoid a multiplicity of hearings.
[2] Letter from Committee to Bennett + Co, 10 August 2015.
The letter went on to advise that in the ordinary course it was likely that the Committee would not be in a position to make a determination on the question of whether any matters should be referred to the Tribunal for some time, but in order to clarify the position as soon as possible, the Committee would increase and prioritise resources to expedite the investigation. The letter set out a timetable which proposed that the Committee make a decision with respect to the conduct investigation by 18 September 2015 and, if the Committee resolved to refer any aspect of Mr Rayney's conduct to the Tribunal, to file an application to that effect in the Tribunal by 25 September 2015.
The author of the letter went on to observe that in the light of that timetable, if an application by the Committee to the Tribunal were to be heard simultaneously with Mr Rayney's review proceedings, a hearing in September or October would not be feasible. The letter foreshadowed that these matters would be drawn to the attention of the Tribunal at a directions hearing to be held on 12 August 2015.
Mr Rayney's solicitors responded to that letter by letter to the Committee dated 11 August 2015. In that letter the solicitors advised that Mr Rayney would oppose deferring the listing of his review proceedings because his financial circumstances were such that he needed to resolve the issue of his ability to practice as quickly as possible. The letter went on to assert that the question of whether there would be any 'overlap' or 'multiplicity of hearings' was entirely speculative.[3]
[3] Letter from Bennett + Co to Committee, 11 August 2015.
As foreshadowed in the correspondence, the Committee applied to intervene in Mr Rayney's proceedings at a directions hearing before the Tribunal on 12 August 2015. In the course of that hearing, counsel for the Committee provided the Tribunal with an affidavit sworn by an officer of the Committee deposing to the matters to which I have referred, and annexing the relevant correspondence.
On 25 August 2015 the Committee issued two summonses requiring Mr Rayney to provide written information verified on oath and to produce certain specified documents by 8 September 2015. In the weeks following the issue of those summonses, Mr Rayney sought various extensions of time for the provision of the information and documents. In the result, the time for compliance with the summonses was extended to 29 September 2015, and the information and documents sought were provided on that date.
On 29 September 2015 the Committee again applied for leave to intervene at a directions hearing held in Mr Rayney's proceedings. Counsel for the Committee handed up to the Tribunal a further affidavit sworn by an officer of the Committee setting out the progress and likely timetable for completion of the Committee's investigations. At that hearing, and with knowledge of the matters to which I have referred, the Tribunal listed Mr Rayney's proceedings for hearing over four days commencing on 20 October 2015.
By letter dated 9 October 2015, the Committee gave Mr Rayney's solicitors notice of its decision to refer Mr Rayney's alleged conduct in respect of seven specified matters to the Tribunal pursuant to s 428 of the LPA, and that the Committee had determined to take no further action in relation to other specified matters which the Committee had investigated. Also on 9 October 2015 the Committee commenced proceedings in the Tribunal referring Mr Rayney's conduct in respect of eight specified matters[4] to the Tribunal, seeking an order that Mr Rayney had engaged in professional misconduct (the Committee's proceedings).
[4] Although the application to the Tribunal contains eight grounds, those grounds correspond generally to the seven topics identified in the Committee's letter to Mr Rayney's solicitors of 9 October 2015.
On 14 October 2015 the Tribunal held directions hearings in both Mr Rayney's proceedings and the Committee's proceedings. As foreshadowed in earlier correspondence, counsel for Mr Rayney advised the Tribunal that Mr Rayney wished to proceed with the listed hearing of his review proceedings notwithstanding the Committee's referral of his conduct to the Tribunal. The Tribunal confirmed that Mr Rayney's review proceedings would be heard on the listed date, and made directions programming the future conduct of the Committee's proceedings which did not include the listing of those proceedings for hearing.
Mr Rayney's review proceedings were heard on the listed dates, and on 10 February 2016 the Tribunal delivered its reasons for concluding that his application for a review should be allowed and the decision of the Board to cancel his practising certificate set aside.
Following the publication of the Tribunal's reasons for upholding his application for review, by letter dated 10 March 2016 Mr Rayney's solicitors made representations to the Committee with respect to the withdrawal of the matters which had been referred to the Tribunal. The Committee responded to those representations on 24 March 2016 by advising that it would withdraw all grounds other than three, which correspond to the three specific grounds which I identified in the Committee's letter of 16 December 2013, namely:
(a)misconduct by recording conversations between himself and his then wife on a handheld recording device in contravention of the Surveillance Devices Act;
(b)swearing an affidavit which he knew to be false in the course of proceedings in the Magistrates Court relating to his claim of legal professional privilege; and
(c)giving evidence which he knew to be false in the proceedings in the Magistrates Court relating to his claim of legal professional privilege.
The matters no longer pursued by the Committee correspond generally to the matters heard and determined by the Tribunal in Mr Rayney's proceedings. On 4 April 2016 the President of the Tribunal granted leave to the Committee to withdraw the abandoned grounds.
On 26 April 2016 Mr Rayney brought an application for summary dismissal of the Committee's proceedings on the grounds that they constituted an abuse of process, and for production of documents by the Board.
On 6 May 2016 the President ordered that the Board produce documents to the Tribunal by 27 May 2016.
Mr Rayney's application for dismissal of the Committee's proceedings as an abuse of process was heard on 11 August 2016. On 19 December 2016 the President of the Tribunal upheld that application and dismissed the Committee's proceedings. On 13 January 2017 the Committee appealed from that decision. An order for the expedited hearing of that appeal was made on the basis of representations from Mr Rayney's solicitors to the effect that the outcome of the appeal had the capacity to affect the conduct of defamation proceedings brought by Mr Rayney against the State of Western Australia, the hearing of which was imminent, and the appeal was heard on 22 February 2017. At the conclusion of the hearing of the appeal, the court advised the parties of the decision which would be made in the matter, but made no orders disposing of the appeal prior to the publication of these reasons because of possible prejudice to Mr Rayney in relation to the exercise of his right to seek leave to appeal from this decision.
The reasons of the Tribunal
It will be necessary to deal with specific aspects of the Tribunal's reasons for decision in the context of each specific ground of appeal. However, it is desirable to place those grounds in their context by providing a general review of the approach taken by the Tribunal in its reasons.
After providing a brief chronology and referring to two provisions of the State Administrative Tribunal Act 2004 (WA) (the SAT Act), including the provision which enables the Tribunal to dismiss a proceeding on the ground that it is an abuse of process, the Tribunal referred to various authorities relating to the categories of abuse of process, including cases relating to the distinction between estoppel arising from privity of interest and the broader concept of abuse of process.
In this context the Tribunal held that 'a failure to have proceedings heard in tandem may constitute an abuse of process'.[5] Ground 3 of the appeal asserts that the Tribunal's reasons should be construed as concluding that a failure by a second litigant to have its proceedings heard in tandem with earlier proceedings to which it was not a party, without more, constitutes an abuse of process which is said to be an error of law in the absence of the establishment of a 'relevant connection' or a 'sufficient identification' between the second litigant and the party to the earlier proceedings.
[5] Legal Profession Complaints Committee and Rayney [2016] WASAT 142 [30] (LPCC and Rayney).
The Tribunal's reasons then replicate various relevant provisions of the LPA, including some of the provisions relating to the constitution and functions of the Board and the Committee. In that context the Tribunal concluded:[6]
Although the [Committee] has separate functions it is still a committee of the Board. Accordingly, the [Committee] is a privy of the Board. Its actions cannot be considered in isolation from those of the Board. The fact that the Board must not direct or impose any requirements on the [Committee] does not lead to the conclusion that the steps taken by and findings made by the Board, or the Tribunal on review, are irrelevant to the [Committee]. Nor can the Tribunal ignore those findings when considering a complaint.
...
It would be an error to conclude that because the Board and the [Committee] have separate functions they are to be regarded as operating in separate silos. They are both bodies constituted by the same Act, one of the purposes of which is the regulation of legal practice in Western Australia.
This is the only passage in the Tribunal's reasons enunciating the reason for the Tribunal's conclusion that the Committee is a privy of the Board - namely, that it is a committee of the Board.
[6] LPCC and Rayney [52], [55].
The conclusion that the Committee is a privy of the Board is challenged by ground 1 of the appeal.
The Tribunal then considered the provisions of the LPA relating to the disclosure of information and concluded that there was 'both a practical and a statutory basis for the exchange of information between the Board and the [Committee]'.[7]
[7] LPCC and Rayney [59].
After referring to material produced by the Board, the Tribunal found that, at least from September 2014, the Board and the Committee:[8]
•were aware of the separate investigations being conducted by the other;
•kept each other apprised of the status and developments of their investigations against Mr Rayney; and
•exchanged information and documents obtained in the context of their separate investigations against Mr Rayney including documents filed by Mr Rayney in the Board Proceedings.
[8] LPCC and Rayney [61].
The Tribunal addressed the relevance of this exchange of information in the following passage of its reasons:[9]
The exchange of information between the Board and the [Committee] during the course of their respective inquiries into Mr Rayney is relevant to whether there was in fact an abuse of process by the [Committee]. Any requests for information or documents from Mr Rayney by the [Committee] need to be considered in the light of the fact that the [Committee] had access to documents provided to the Board by Mr Rayney.
[9] LPCC and Rayney [63].
However, in response to a submission to the effect that the lack of independence of the Board and the Committee in the conduct of their respective functions relating to Mr Rayney was 'unfair and prejudicial', the Tribunal observed:[10]
The Tribunal does not accept that there was any unfairness to Mr Rayney in the exchange of the information because that exchange is part of the Board's and the [Committee's] statutory functions as parts of the same regulatory framework.
[10] LPCC and Rayney [65].
The Tribunal then addressed various statutory provisions relating to the functions of the Board, the functions of the Committee, the role of the Tribunal in relation to disciplinary proceedings involving legal practitioners and the role of the Supreme Court in relation to such proceedings. After referring to and generally accepting a number of propositions advanced by the Committee with respect to the distinct and exclusive functions of each of the Board and the Committee, the Tribunal observed:[11]
[C]onsideration of whether or not there has been an abuse of process requires a consideration not of whether a party could commence proceedings, or take a step in proceedings, but whether it should.
Accordingly, the fact that the [Committee] has power to take a particular step (for example, to initiate proceedings), does not exclude an inquiry as to whether it should take that step.
The question is whether the actions of the [Committee], although not inconsistent with the literal application of the [LPA], would nevertheless be regarded as unjustifiably oppressive or bring the administration of justice into disrepute with right thinking people.
As Mr Rayney submitted, in the present case, what the [Committee] seeks to pursue replicates that which was pursued by the Board. It merely approaches establishing the same factual and legal determinations (that Mr Rayney is not a fit and proper person to continue to practise) from a different legislative path (s 403(2) of the [LPA]).
The [Committee's] affidavit in opposition
In the [Committee's] affidavit in opposition to the s 47 proceedings, rather than seeking to offer any explanation for its conduct, the [Committee] has simply exhibited a series of documents to Mr Pope's affidavit. The [Committee] seems to assert that this constitutes a sufficient explanation. It is not. The [Committee] is a public disciplinary body. It is not a private individual or corporation. As such, it owes an explanation to this Tribunal for the use of the Tribunal's processes when its conduct is challenged.
[11] LPCC and Rayney [91] ‑ [95].
Under the heading 'Background', the Tribunal then set out the sequence of chronological events which I have set out above, although, of course, in rather different terms. In that context the Tribunal held:[12]
[I]t could not seriously be doubted that at this point, 16 December 2013, the [Committee] had formed the view that it was ultimately going to file a complaint with the Tribunal. To suggest otherwise is fanciful.
[12] LPCC and Rayney [121].
I digress to observe that this conclusion is contrary to the uncontradicted affidavit evidence of an officer of the Committee who is also a legal practitioner[13] and is inconsistent with the repeated assertions made on behalf of the Committee in the correspondence from the Committee to Mr Rayney's solicitors which I have referred to above. No reasons are given for this finding, or for the Tribunal's apparent rejection of the evidence to which I have referred. Counsel for Mr Rayney accepted that the proposition that the Commission had by 16 December 2013 resolved to refer the matter to the Tribunal was not put to the Tribunal on Mr Rayney's behalf.[14] Counsel for the Committee advised the court that this finding had not been challenged in the grounds of appeal because it was not material to the Tribunal's ultimate conclusion.[15] As that proposition is correct, it is unnecessary to determine whether or not this finding was open to the Tribunal on the evidence before it, or whether the Tribunal departed from the principles of procedural fairness in making this finding.
[13] Affidavit of Mr N D Pope, sworn 11 August 2015 [27].
[14] Appeal ts 38.
[15] Appeal ts 23.
After referring to Mr Rayney's acquittal on the TIA charges on 7 May 2015, under the heading 'Delay', the Tribunal observed:[16]
Both parties agreed that to this point no fault could be attributed to either party for the delay in proceeding with the s 421 Notice and the s 56(2) Notice until Mr Rayney's criminal proceedings had concluded.
The Tribunal agrees that no fault could be attributed to either party up to this point. However, after this point, the question of what could have been done and should [have] been done is a very live issue.
[16] LPCC and Rayney [125] ‑ [126].
The proposition that delay by the Committee after the determination of the TIA charges was 'a very live issue' in the proceedings before the Tribunal is challenged by ground 2 of the appeal.
The Tribunal then referred to the terms of the notice issued by the Board on 2 June 2015 pursuant to s 56 of the LPA, and compared the grounds upon which that notice was issued to the matters to which the Committee had referred in its letter to Mr Rayney of 16 December 2013 (which it described as the s 421 notice). The Tribunal concluded:[17]
The factual matters in the s 421 Notice and the s 56(2) Notice are the same. Those facts arise out of the very same pattern of conduct alleged against Mr Rayney in each notice.
There is no reasonable explanation offered by the [Committee] as to why the resolution of the [Committee's] s 421 Notice and the Board's s 56(2) Notice could not have proceeded in tandem from this point on with the matters being heard together. Indeed, the Tribunal is unable to discern any such explanation in the evidence before it.
[17] LPCC and Rayney [135] ‑ [136].
The inferential finding, made explicitly in later portions of the Tribunal's reasons, to the effect that the Committee had unreasonably failed to ensure that its reference of Mr Rayney's conduct to the Tribunal was heard in tandem with Mr Rayney's review proceedings is challenged by a number of the grounds of appeal.
In the context of its chronological recitation of the events which occurred in June and July 2015, the Tribunal observed:[18]
The long delay between the events leading to the complaint and the s 421 Notice made it urgent that the allegations which had the potential to end Mr Rayney's professional career be considered and resolved promptly.
It is also important to bear in mind the [Committee's] duty under s 431 of the [LPA] to 'deal with complaints as efficiently and expeditiously as is practicable'.
[18] LPCC and Rayney [151] ‑ [152].
After referring to the notice given by the Board to Mr Rayney of the cancellation of his practising certificate, the Tribunal noted that the Board had not pursued all of the allegations made in the notice which the Board had given of its intention to cancel Mr Rayney's practising certificate, and in particular had not pursued the allegations relating to Mr Rayney's breach of the Surveillance Devices Act by using a handheld dictaphone to covertly record conversations with his wife, and the allegations with respect to the making of false statements in an affidavit and in evidence given in relation to Mr Rayney's claims for legal professional privilege in respect of those recordings and having knowingly made a false claim for privilege in relation to those recordings (which the Tribunal described collectively as 'the balance allegations'). In that context the Tribunal rejected submissions made by the parties with respect to inferences that should be drawn from the Board's failure to pursue those allegations. However, it observed:[19]
The [Committee] did not seek to provide an explanation nor invite the Board to provide an explanation as to why the Board did not pursue the Balance Allegations. No explanation was offered in the Board Proceedings.
The Board is a public body charged under the [LPA] with considering whether a practitioner should hold a practising certificate. It remains an unexplained and inexplicable decision by the Board not to pursue the Balance Allegations given that a failure to pursue them had the potential to leave a resolution of those matters outstanding.
[19] LPCC and Rayney [161] ‑ [162].
After referring to the Committee's letter to Mr Rayney's solicitors of 10 August 2015 the Tribunal observed:[20]
The [Committee's] letter of 10 August 2015 stated the obvious, namely, that there was a significant factual overlap between the review of the Board's s 56(2) Notice and the [Committee's] s 421 Notice.
The table above at [135] [sic] illustrates the similarity between the s 56(2) Notice and the s 421 Notice.
No explanation was offered by the [Committee] as to why it took a month to reply to Mr Rayney's submission.
It is extraordinarily difficult to understand the timetable prepared in the [Committee's] letter of 10 August 2016 and why all of those matters had not been attended to or investigated by the time the Board issued its s 56(2) Notice.
The [Committee] has offered no explanation why the [Committee] had not conducted its investigation on, or within a week of, 2 June 2015 or even by the end of June 2015. If it had done so, there is no plausible reason why the [Committee] could not have had its case against Mr Rayney ready for hearing at the same time as the Board's case.
What is even more difficult to understand is why, in the light of s 428(2) of the [LPA], which permits a complaint to be made to the Tribunal without an investigation, the [Committee] even found it necessary to conduct an investigation before referring a complaint about Mr Rayney to the Tribunal.
The [Committee] offered no explanation as to why it could not and should not have commenced proceedings.
[20] LPCC and Rayney [170] ‑ [176].
I digress to observe that in this portion of the reasons the Tribunal erroneously refers to Mr Rayney's proceedings as proceedings for the review of the s 56(2) notice issued by the Board, whereas in fact those proceedings were for review of the cancellation notice issued pursuant to s 56(4) of the LPA. As the Tribunal had noted in its reasons, the notice issued by the Board pursuant to s 56(4) did not rely upon a number of the matters asserted in the notice issued pursuant to s 56(2). It seems clear that this is not merely a typographical error, because the table at [134] of the Tribunal's reasons compares the notice issued by the Board pursuant to s 56(2) with the letter sent to Mr Rayney by the Committee in December 2013, rather than comparing the cancellation notice issued by the Board pursuant to s 56(4) with the letter sent by the Committee approximately 18 months earlier.
This portion of the Tribunal's reasons is challenged by various grounds of appeal.
After referring to Mr Rayney's opposition to any deferral of the hearing of his review proceedings the Tribunal observed:[21]
The [Committee's] failure to be in a position to have its application heard with the Board Proceedings is not excused by Mr Rayney's request for a deferral.
[21] LPCC and Rayney [185].
This observation is challenged by ground 5 of the appeal.
After referring to the summons issued to Mr Rayney on 25 August 2015 by the Committee, the Tribunal observed:[22]
There is no explanation from the [Committee] as to why it was necessary for the summons of 25 August 2015 to be issued in the context of the [Committee] Proceedings. All of the requests for written information could have been dealt with in crossexamination.
[22] LPCC and Rayney [189].
This observation, and other portions of the Tribunal's reasons to the general effect that it considered any investigation by the Committee to be 'unnecessary'[23] are challenged by ground 4 of the appeal.
[23] See for example LPCC and Rayney [175] ‑ [176] (above), [181], [191] ‑ [192], [250], [258].
After referring to the commencement of proceedings in the Tribunal by the Committee, the Tribunal recorded that:[24]
Immediately after the commencement of the [Committee's] Proceedings, the [Committee] sought an urgent directions hearing. That directions hearing was scheduled for 14 October 2015.
The [Committee] raised with the Tribunal the partial overlap between the issues in Mr Rayney's review proceedings and the [Committee's] Proceedings. The [Committee] submitted that it did so to allow Mr Rayney, and the Tribunal, to decide whether arrangements should be made to avoid a multiplicity of hearings given the imminent listed hearing in Mr Rayney's review proceedings.
Mr Rayney, by counsel, informed the Tribunal that he wished to proceed with his review proceeding. The Board indicated that it was also prepared to proceed. Accordingly, the Tribunal determined that Mr Rayney's review proceedings would be heard commencing 20 October 2015.
[24] LPCC and Rayney [209] ‑ [211].
Having earlier referred to the failure of the Board to include within the notice of cancellation of Mr Rayney's practising certificate[25] a number of the matters to which reference was made in the notice given to Mr Rayney of the Board's intention to cancel his practising certificate,[26] the Tribunal expressed the view that it was beyond doubt that the Board could not now proceed to rely upon the matters which it failed to press in the cancellation notice if it were to now issue a fresh notice of intent to cancel Mr Rayney's practising certificate pursuant to s 56(2) of the LPA. The Tribunal then observed:[27]
The [Committee] is a privy of the Board. In determining to proceed with the Balance Allegations the Board bound the [Committee]. This arises not by reason of any direction or imposition of the Board but as a matter of law. The actions of the Board bind the [Committee] as its privy in relation to the factual allegations the subject of the s 56(2) Notice and the s 56(4) Notice. Those factual matters could have and should have been dealt with by the Board. The Board's failure to do so was unreasonable in the circumstances. The [Committee] cannot overcome the fact that it is a privy of the Board. On that ground alone the [Committee's] proceedings should be struck out as an abuse of process.
[25] Pursuant to s 56(4) of the LPA.
[26] Pursuant to s 56(2) of the LPA.
[27] LPCC and Rayney [215].
It is clear that the Tribunal considered this conclusion to be a sufficient basis, of itself, for dismissal of the Committee's proceedings. What is less clear is whether that conclusion was arrived at through the application of the principles of estoppel, as clearly connoted by the reasoning process to the effect that the actions of the Board bound the Committee as its privy, or by reference to the application of the principles relating to abuse of process, as the last sentence of the paragraph would suggest.[28] At all events this conclusion is challenged by ground 1 of the appeal.
[28] Although it is quite possible, perhaps likely, that the expression 'abuse of process' is used by the Tribunal in order to emulate the terminology of s 47 of the SAT Act, rather than indicate the precise legal reasoning applied.
The Tribunal then referred to the matters the subject of the revised reference to the Tribunal by the Committee, following the withdrawal of the matters determined by the Tribunal in the review proceedings commenced by Mr Rayney. The Tribunal accepted a submission from the Committee to the effect that each of the remaining matters had, at its core, the issue of whether the dictaphone recordings were made with Mrs Rayney's knowledge and consent.[29] In that context the Tribunal observed:[30]
In the Board Proceedings, the Board stated that the use of the dictaphone to record conversations between Mr and Mrs Rayney was not an issue before the Tribunal. That statement is correct to the extent that, because the Board did not pursue an allegation of a breach of the Surveillance Devices Act in relation to the use of the dictaphone, it was unnecessary to make a formal finding as to whether it was done with or without Mrs Rayney's consent (see Rayney at [122]).
However, it was the case that the facts and circumstances surrounding the use of the dictaphone and whether the recordings were made with Mrs Rayney's consent were the subject of extensive evidence before the Tribunal in the Board Proceedings.
...
The Tribunal accepts that Mrs Rayney's consent to Mr Rayney's use of a dictaphone to record their conversations was very much a live issue.
[29] LPCC and Rayney [221].
[30] LPCC and Rayney [222] ‑ [223], [226].
In support of that conclusion the Tribunal set out a lengthy passage of the transcript of the cross‑examination of Mr Rayney by counsel for the Board.[31]
[31] LPCC and Rayney [227].
The proposition that the question of whether the dictaphone recordings were made without consent was very much a live issue in Mr Rayney's proceedings is challenged by ground 4 of the appeal.
In response to a submission from the Committee to the effect that the proceedings which the Committee had commenced in the Tribunal were different in nature and substance from Mr Rayney's review proceedings, the Tribunal observed that it was required to consider substance over form, and the fact that the Committee was not a party to Mr Rayney's proceedings missed the point, which concerned the failure of the Committee to ensure that the matters were heard together by ensuring that its proceedings were heard in tandem with Mr Rayney's proceedings on 20 October 2015.[32] These conclusions are challenged by ground 6 of the appeal.
[32] LPCC and Rayney [240] ‑ [244].
Next the Tribunal held that:[33]
The Board Proceedings and the [Committee's] Proceedings fall squarely within the concept of double jeopardy, identified by Gleeson CJ in Gill set out above, in that the complaint in the [Committee's] Proceedings arose out of the same pattern of conduct as gave rise to the Board Proceedings and there is a substantial degree of factual overlap between the issues.
[33] LPCC and Rayney [245].
This conclusion is challenged by ground 4 of the appeal.
The next portion of the Tribunal's reasons reiterates the failure of the Committee to explain what the Tribunal considered to be its delay in the prosecution of its proceedings; the Committee's failure to make a complaint directly to the Tribunal so as to ensure that its proceedings and Mr Rayney's review proceedings were heard together; and conclusions previously expressed to the effect that the Committee should and could have been in a position to proceed with the hearing of the proceedings which it had commenced in the Tribunal at the same time as the hearing of Mr Rayney's proceedings. In this context the Tribunal reiterated its earlier conclusion to the effect that Mr Rayney's opposition to any deferral of the hearing of his review proceedings did not excuse the multiplicity of hearings which would result if the Committee's proceedings were allowed to continue because those proceedings should have been ready to be heard in tandem with Mr Rayney's review proceedings. As I have noted, this process of reasoning is challenged by a number of the grounds of appeal, including grounds 5 and 6.
Under the heading 'Bringing the administration of justice into disrepute' the Tribunal observed:[34]
Our legal system does not permit allegations to be dealt with piecemeal. It is a fundamental principle of justice that allegations with a common factual basis should be dealt with together. A person should not have to face multiple suits brought by the same entity. To do so brings the administration of justice into disrepute.
[34] LPCC and Rayney [284].
The Tribunal's reference to a person facing multiple suits brought by the same entity suggests, consistently with one view of the reasons given by the Tribunal at [215],[35] that the Tribunal was applying principles of estoppel based upon privity between the Committee and the Board.
[35] See above at [69].
In the concluding summary of its reasons, the Tribunal set out a matrix[36] showing and comparing the aspects of Mr Rayney's alleged conduct relied upon:
(a)by the Committee in the letter advising that it proposed to investigate Mr Rayney's conduct pursuant to s 421 of the LPA on 16 December 2013;
(b)by the Board in its notice of intention to cancel Mr Rayney's practising certificate issued pursuant to s 56(2) of the LPA on 2 June 2015;
(c)by the Board in its notice of cancellation of Mr Rayney's practising certificate issued pursuant to s 56(4) of the LPA on 17 July 2015;
(d)by the Committee in its application to the Tribunal on 9 October 2015;
(e)by the Committee in its revised application to the Tribunal filed on 11 April 2016, following withdrawal of the matters determined by the Tribunal in Mr Rayney's proceedings.
[36] LPCC and Rayney [285].
The table shows, consistently with the facts narrated earlier in these reasons, and by the Tribunal in its reasons, that although there was a correspondence between the matters to which the Committee referred in its notice of investigation issued in 2013, and in its original application to the Tribunal, with the matters upon which the Board relied in its notice of intention to cancel Mr Rayney's practising certificate, the matters identified by the Board in its notice of cancellation of Mr Rayney's practising certificate did not include the matters which the Committee wished to refer to the Tribunal in its revised application.
In that context the Tribunal summarised the reasoning and conclusions expressed earlier in its reasons as follows:[37]
There was ample opportunity for the [Committee's] Proceedings and the Board Proceedings to be heard together. The [Committee] did not take advantage of that opportunity when it could have and should have. It follows that there could have and should have been finality of all the evidentiary and ultimate issues raised against Mr Rayney by the Board and the [Committee].
No valid reason was advanced by the [Committee] as to why the [Committee's] Proceedings could not have been heard at the same time as the Board Proceedings. They could have and should have been heard at the same time.
Although the Tribunal has not adjudicated on the subject matter of the grounds now referred to it in the [Committee's] Proceedings, it is remarkable that the [Committee] seeks to continue to prosecute the proceedings. To the extent that Mr Rayney 'will have gained an advantage', that arises simply because the [Committee] did not prosecute the [Committee's] Proceedings when it could have and should have done so. The [Committee's] submission that Mr Rayney will have 'gained an advantage' merely by seeking a review of the Tribunal's decision to cancel his practising certificate is not correct. Mr Rayney was entitled to seek a review of the Board's decision to cancel his practising certificate as quickly as possible, particularly in circumstances where he had not practised for a significant period of time. The [Committee] was not entitled to proceed as if the Board Proceedings had not been instituted. It was not entitled to proceed as if it had no information.
Not to have proceeded with the Board Proceedings and the [Committee's] Proceedings together was clearly oppressive to Mr Rayney. His practising certificate had been cancelled by the Board. He was entitled to apply to have that decision reviewed. It was entirely reasonable for him to have expected that all of the factual issues would have been dealt with in one hearing. It would be unfair if he now had to face yet another hearing in circumstances where the [Committee's] Proceedings could have and should have been dealt with in October 2015.
For Mr Rayney to have to now face a trial of the [Committee's] Proceedings would impact adversely upon the principle of finality of judicial determination and public confidence in the administration of justice. Public confidence in the administration of justice would be eroded in circumstances where the [Committee's] Proceedings could have and should have been dealt with in conjunction with the Board Proceedings. Although the continuation of the [Committee's] Proceedings would not be inconsistent with the literal application of SAT's procedural rules and the LP Act, it would nevertheless bring the administration of justice into disrepute among rightthinking people.
When the [Committee] could have and should have proceeded in conjunction with the Board Proceedings in October 2015 its interests in having the [Committee's] Proceedings heard as against Mr Rayney's interests in finality and the ability to get on with his life lead to the overall balance of justice favouring the dismissal of the [Committee's] Proceedings as an abuse of process.
...
The time has come to say enough. The Tribunal finds that this is a most exceptional case. The Tribunal finds that pursuant to s 47 of the SAT Act the continuation of the [Committee's] application would constitute an abuse of process.
[37] LPCC and Rayney [289] ‑ [295].
Summary of the Tribunal's reasons
This analysis of the Tribunal's reasons shows that, stripped to their bare essentials, the Tribunal summarily dismissed the Committee's proceedings against Mr Rayney for two independent reasons.
First, the Tribunal held that the Committee was bound by the Board's decision not to pursue the matters which the Committee has referred to the Tribunal in the Board's notice of cancellation of Mr Rayney's practising certificate, with the consequence that the Committee was now precluded from referring those matters to the Tribunal. Although the language used in the reasons is not entirely consistent, the better view seems to be to the effect that the decision was based upon the application of the principles of estoppel, rather than broader principles relating to abuse of process.
Second, the Tribunal concluded that the Committee's failure to act in such a way as to enable the proceedings which it commenced in the Tribunal to be heard at the same time as Mr Rayney's proceedings constituted an abuse of process because it resulted in a multiplicity of hearings which was unfair and prejudicial to Mr Rayney. The Tribunal attributed the Committee's failure to act in such a way as to enable the two sets of proceedings to be heard in tandem to a number of different factors including the Committee's decision to investigate Mr Rayney's conduct when such an investigation was unnecessary and delay in the conduct of the investigation, including delay occasioned by the taking of steps which were unnecessary. All of these factors contributed to the Tribunal's conclusion that the Committee's conduct gave rise to an abuse of process.
The application for leave to appeal and the ambit of an appeal from the Tribunal
An appeal can be brought to this court from the Tribunal only by leave,[38] and only on a question of law.[39]
[38] SAT Act s 105(1).
[39] Subject to an exception not relevant to this case: SAT Act s 105(2), s 105(13).
The written submissions provided by the Committee helpfully identify the question or questions of law raised by each ground of appeal. As it is not contended on behalf of Mr Rayney that any of those grounds exceed the ambit of an appeal permitted by the SAT Act, it is unnecessary to say any more about this aspect of the case.
Leave to appeal from a decision of the Tribunal will be granted if, in all the circumstances, a grant of leave is in the interests of justice.[40] Although the circumstances in which it will be in the interests of justice to grant leave cannot be constrained, it will usually be relevant for the court to consider whether an applicant for leave has shown that there is sufficient doubt with respect to the decision under appeal to justify the grant of leave and that allowing the error to go uncorrected would impose substantial injustice. The latter conclusion will more readily follow if the substantive effect of the decision under appeal is final.[41]
[40] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16].
[41] Paridis [17] ‑ [18], relying upon Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, 337 [16].
In this case the decision of the Tribunal had the effect of finally determining the proceedings commenced by the Committee without any substantive determination of their merit. In such a circumstance, leave to appeal should be granted if the applicant can establish that the Tribunal's decision was vitiated by error. No contention to the contrary was advanced on behalf of Mr Rayney.
The grounds of appeal
There are six grounds of appeal. The first ground is concerned with the first reason given by the Tribunal for dismissing the Committee's proceedings based on privity of interest between the Committee and the Board, and all other grounds are directed to the second reason given by the Tribunal. However, for the reasons which follow, there is some commonality of issues between grounds 1 and 3 which makes it convenient to consider these grounds first.
Grounds 1 and 3
Ground 1 asserts that the Tribunal erred by concluding that the Committee was a privy of the Board and therefore bound by the Board's decision not to pursue the matters identified in the Board's notice of intention to cancel Mr Rayney's practising certificate in its notice of cancellation of Mr Rayney's practising certificate, and in its defence of Mr Rayney's review proceedings. Ground 3 asserts that the Tribunal erred in law in holding that a failure to have proceedings heard in tandem might, without more, constitute an abuse of process without addressing the question of whether there was a 'relevant connection' or 'sufficient identification' between the Committee and the Board so as to give rise to an abuse of process.
As each of these grounds is concerned with the relationship between the Committee and the Board, it is appropriate to commence with a consideration of the provisions of the LPA which bear upon that relationship.
The Legal Profession Act
The LPA provides for the regulation of legal practice in Western Australia and facilitates the regulation of legal practice on a national basis.[42] Under the Act, the entities primarily responsible for the regulation of the legal profession in Western Australia are the Board, the Committee and the Supreme Court of Western Australia. The Board and the Committee are each created by provisions contained within pt 16 of the LPA. Division 1 of that Part is concerned with the establishment, functions and performance of the Board, whereas div 2 of that Part is concerned with the establishment, functions and performance of the Committee.
The Board
[42] Preamble to the LPA.
The Board is a body corporate which may sue or be sued in its corporate name.[43] The members of the Board comprise the Attorney General, the Solicitor General, each Queens Counsel and Senior Counsel practising in Western Australia who has nominated himself or herself as a member and 12 local legal practitioners of at least three years standing and practice who are elected as members.[44] Any four members of the Board comprise a quorum for the purposes of a meeting of the Board.[45] Part 16 of the LPA does not specify the functions of the Board other than to provide that it has the functions conferred upon it by the LPA or any other Act.[46]
[43] LPA s 534.
[44] LPA s 536.
[45] LPA s 544.
[46] LPA s 539.
The Board is empowered to delegate any of its powers or duties to a member of the Board or to a committee established by the Board.[47] Committees created by the Board must comply with any direction or requirement of the Board, but may determine their own procedures.[48] However, those provisions do not apply to the Committee.[49]
[47] LPA s 547.
[48] LPA s 552(2), s 552(4).
[49] LPA s 552(5).
The Board is required to make and submit an annual report of its proceedings to the Attorney General which must include certain specified information, which report must then be tabled by the Attorney General in each House of Parliament.[50]
The Committee
[50] LPA s 551.
The Committee is established as a committee of the Board by the LPA not by the Board.[51] The Committee comprises a chairperson and not less than six other legal practitioners appointed by the Board from amongst its members from time to time and not less than two representatives of the community who are not lawyers, appointed by the Attorney General after consultation with the Minister responsible for consumer affairs.[52] Three members of the Committee comprise a quorum for the purposes of a meeting of the Committee provided that two are members appointed by the Board and one is a representative of the community.[53]
[51] LPA s 555.
[52] LPA s 556.
[53] LPA s 566(1).
Although the Committee is to perform the functions conferred upon it by the LPA or any other Act, without limiting that conferral of power s 557 of the LPA provides that the functions of the Committee include:
(a)the supervision of the conduct of legal practitioners;
(b)inquiry into complaints received with respect to conduct on the part of a legal practitioner or matters relating to legal practice;
(c)the institution of disciplinary proceedings against a legal practitioner in the Tribunal; and
(d)the supervision and direction of the Law Complaints Officer.
(and another function not presently relevant).
The same section provides that a member of the Committee appointed by the Attorney General may report independently, as an individual, to the Attorney General on any aspect of an alleged complaint or an inquiry as to disciplinary matters or the activities of the Law Complaints Officer or the Committee itself. The same section also requires the Board to ensure that the Committee is provided with such services and facilities as are reasonably necessary to enable it to perform its functions.
However, and significantly, s 557(4) provides:
The Board must not direct or impose any requirement on the [Committee] as to the performance of its functions.
Other provisions in div 2 of pt 16 enable the Committee to sit and exercise jurisdiction as one or more Divisions provided a quorum is present,[54] and empower the Committee to determine its own procedures.[55]
[54] LPA s 568.
[55] LPA s 570.
The Committee is required to provide an annual report to the Attorney General including information specified in the LPA, which the Attorney General is obliged to table in each House of Parliament.[56]
The Law Complaints Officer
[56] LPA s 571.
Division 3 of pt 16 of the LPA creates the office of Law Complaints Officer. As I have noted, that officer is subject to the supervision and direction of the Committee.
The respective functions of the Board and the Committee
As the LPA comprises more than 600 sections, an exhaustive analysis of the different functions conferred upon the Board and the Committee respectively by that Act would be lengthy and tedious. For present purposes it is sufficient to observe that under the LPA each of the Board and the Committee are given discrete and exclusive statutory functions, and to support that observation with some examples.
Some exclusive functions of the Board
The admission of a person to legal practice is regulated by a combination of the Board and the Supreme Court. The issue of practising certificates to 'Australian lawyers'[57] is the exclusive responsibility of the Board.[58] Accordingly, whether or not a certificate should be issued, and the conditions (if any) attached to any practising certificate, and the amendment, suspension or cancellation of any practising certificate are all matters within the exclusive province of the Board. As this case illustrates, conduct on the part of a legal practitioner[59] which might cause the Board to suspend or cancel a practising certificate might also give rise to a complaint to the Committee under other Parts of the LPA. In that context, s 60 of the LPA, which is within div 6 of pt 5 of the Act which relates to the amendment, suspension or cancellation of practising certificates, provides:[60]
Nothing in this Division prevents a complaint from being made, or an investigation being initiated, under Part 13 about a matter to which this Division relates.
[57] Defined by s 4 of the LPA to mean a person who is admitted to the legal profession under the LPA or the corresponding law of another jurisdiction.
[58] See generally LPA pt 5 div 3 ‑ 10.
[59] Defined by s 5 of the LPA to mean an Australian lawyer who holds a current local or interstate practising certificate.
[60] Part 13 of the LPA is the Part which deals with complaints and discipline, and deals extensively with the functions and responsibilities of the Committee.
The Board is also responsible for the commencement of any proceedings for an offence against the LPA.[61] The Board is also responsible for the administration and operation of pt 6 of the Act, which contains provisions with respect to the admission and issue of practising certificates to lawyers practising in other Australian jurisdictions. The Board is also responsible for the registration of foreign lawyers under pt 8 of the LPA.
[61] LPA s 592.
These are just some examples of functions imposed exclusively upon the Board by the LPA. The Committee has no role to play in relation to any of these functions, or any of the other many functions conferred exclusively upon the Board by the LPA.
Some exclusive functions of the Committee
Other provisions of the LPA confer exclusive functions upon the Committee. Perhaps the most significant of those is pt 13 of the LPA, which is concerned with complaints and discipline, and which confers upon the Committee the functions which it has exercised in this case. Complaints made under that Part may be made to the Committee or the Law Complaints Officer,[62] although exclusive responsibility for responding to a complaint is conferred upon the Committee. So, the Committee may require a complainant to provide further details about the complaint,[63] and it is the Committee which must ensure that written notice of any complaint is provided to the relevant practitioner as soon as practicable after a complaint is made.[64] Other provisions of the Part regulate the manner in which the Committee is to investigate and resolve complaints, including s 421(1) of the LPA, which authorises the Committee to investigate the conduct of a practitioner on its own initiative. That is the power which was exercised by the Committee in this case, and of which notice was given to Mr Rayney on 16 December 2013.
[62] LPA s 410(2).
[63] LPA s 412.
[64] LPA s 413.
In that context, s 424(1) of the LPA provides:
After an investigation under section 421 is completed, the [Committee] must -
(a)in the case of the investigation of a complaint, dismiss the complaint under section 425 or, in the case of an investigation on the initiative of the [Committee], decide to take no further action; or
(b)take action under section 426; or
(c)refer the matter to the State Administrative Tribunal under section 428.
Section 428 of the LPA provides:
(1)If the [Committee] determines that a matter should be heard by the State Administrative Tribunal the Committee may refer the matter to the Tribunal.
(2)The [Committee] is not limited under subsection (1) by the terms of any complaint it has received or by the subject matter of any investigation it has conducted and is not required to conduct an investigation before referring a matter to the State Administrative Tribunal.
The Tribunal placed significant reliance upon the latter provision in arriving at its conclusion that the Committee should have referred the matter to the Tribunal without conducting or completing the investigation which it had initiated pursuant to s 421.
As I have noted above, the Board is empowered to suspend a practising certificate. The Committee's powers with respect to the suspension of practising certificates are set out in s 436(1) of the LPA, and are limited to the making of an application to the Tribunal for an order that a practising certificate be suspended for a specified period, pending the completion of an investigation or a hearing by the Tribunal or an appeal from the Tribunal. In the context of the argument presented to this court with respect to the relationship between the Board and the Committee, it is of some significance that the LPA does not contemplate the Committee making a request to the Board to suspend a practitioner's practising certificate.
Division 12 of pt 13 requires the Board to keep a Register of Disciplinary Action, recording particulars of any disciplinary action taken pursuant to the LPA. However, apart from the power to make complaints[65] and the power to publicise disciplinary action in any manner it thinks fit,[66] this is the only function conferred upon the Board by pt 13, and it is a function which is exclusive of the Committee, just as the powers and functions conferred upon the Committee by pt 13 are exclusive of the Board.
Some joint functions of the Board and the Committee
[65] LPA s 410(1).
[66] LPA s 453.
This is not to say that all powers and functions specified in the LPA are reposed exclusively in either the Board or the Committee. Some powers and functions are conferred upon both. So, for example, either the Board or the Committee may conduct an audit of the compliance of an incorporated legal practice with the requirements of the LPA.[67] To take another example, either the Board or the Committee may appoint a suitably qualified person to investigate the affairs of a law practice.[68]
Summary relating to the Legal Profession Act
[67] LPA s 118.
[68] LPA s 230.
Each of the Board and the Committee are created by the LPA. They are differently constituted,[69] have different quora, and different procedures. Each reports separately to the Attorney General, and through the Attorney General, to the Parliament. The LPA confers a significant range of functions exclusively upon the Board, and a smaller range of functions exclusively upon the Committee. Although there are some functions which can be exercised by either the Board or the Committee under the LPA, they are relatively confined.
[69] Although at least six members of the Board will also be members of the Committee: LPA s 556.
In terms of the relationship between the Board and the Committee, the LPA expressly provides that, notwithstanding that the Committee is a committee of the Board, unlike other committees of the Board, it is not subject to direction or the imposition of any requirement by the Board in the performance of its functions. Further, the LPA expressly recognises that there may be occasions upon which conduct by a practitioner might enliven both the exercise by the Board of its power to suspend or cancel a practising certificate, and the power of the Committee with respect to the investigation and prosecution of complaints, and provides that in such a circumstance the exercise of the Board's powers is not to prevent or inhibit the exercise of the Committee's powers.[70]
[70] LPA s 60.
For reasons which will be developed below, a significant issue with respect to ground 1 of the appeal concerns the capacity of the Committee to control or direct the Board in the exercise of its exclusive power to cancel Mr Rayney's practising certificate. Although there is no express provision in the LPA which reciprocates the prohibition upon the Board directing or imposing any requirement on the Committee in the performance of its functions, such a provision would not be expected, as there is nothing in the general structure or specific provisions of the LPA which would suggest that the Committee has any power or function of directing the Board in relation to the exercise of functions conferred exclusively upon the Board by the LPA.
Counsel for Mr Rayney accepted that the Committee could not direct or control the Board in the exercise of its functions with respect to the cancellation of Mr Rayney's practising certificate.[71] However, he submitted that it would have been open to the Committee to request the Board to include, in its notice of cancellation of Mr Rayney's practising certificate, and in its defence of Mr Rayney's proceedings, the three matters which the Committee now wishes to pursue in the proceedings it has commenced in the Tribunal.[72] When asked to identify the statutory source of such a power, counsel could only refer to s 557(2) of the LPA, and the general function of supervising the conduct of legal practitioners to which I have referred.[73]
[71] Appeal ts 55.
[72] Appeal ts 56 ‑ 58.
[73] At [97] above.
I do not accept that submission. The provision empowering the Committee to supervise the conduct of practitioners must be read and construed in the context created by the scheme of the LPA as a whole, including the conferral of separate and exclusive functions upon each of the Board and the Committee. Viewed in that context, the Committee's general function of supervising the conduct of practitioners is to be performed through the exercise of the specific powers and functions conferred upon it by the LPA. The power to cancel a practising certificate, which was exercised by the Board in this case, is a power conferred exclusively upon the Board. The general function of supervising the conduct of practitioners conferred upon the Committee should not be read or construed as providing the Committee with any role or responsibility in relation to the exercise of a power or function conferred exclusively upon the Board, such as the power to cancel Mr Rayney's practising certificate.
At another point in the argument[74] counsel for Mr Rayney drew attention to the Committee's power to apply to the Tribunal for an order that a practising certificate be suspended for a specified period pending, amongst other things, the investigation and determination of a complaint or matter by the Committee, or the hearing of a referral by the Tribunal.[75] With respect, this provision does not support the proposition that the Committee has any role or responsibility with respect to the Board's exercise of the exclusive power to cancel a practising certificate. Rather, the provision supports the view that the Committee's role is limited to bringing an application before the Tribunal for an interim suspension of a practising certificate, pending the finalisation of the complaints procedure.
[74] Appeal ts 54 ‑ 55.
[75] Pursuant to LPA s 436.
In this statutory context, any attempt by the Committee to influence the Board in the exercise of its exclusive power with respect to the cancellation of Mr Rayney's practising certificate would have subverted the scheme of the LPA and exceeded the powers conferred upon the Committee by the LPA.
The relationship between the Board and the Committee in this case
Counsel for Mr Rayney submitted, in effect, that whatever the provisions of the Act relating to the precise legal relationship between the Board and the Committee, as a matter of fact in this case the Board and the Committee acted in concert, inferentially with the consequence that either privity of interest or a 'relevant connection' or 'sufficient identification' was established between the Board and the Committee.[76] However, the Tribunal made no finding of fact to that effect, nor has any notice of contention been filed to the effect that the Tribunal should have made such a finding. As I have noted above,[77] after reviewing the evidence relating to the communications between the Board and the Committee, the Tribunal found that, at least from September 2014, the Board and the Committee:
(a)were aware of the separate investigations being conducted by the other;
(b)kept each other apprised of the status of and developments in their investigations against Mr Rayney; and
(c)exchanged information and documents obtained in the context of their separate investigations against Mr Rayney including documents filed by Mr Rayney in Mr Rayney's proceedings.[78]
[76] See, for example, appeal ts 46 ‑ 47.
[77] At [48] above.
[78] LPCC and Rayney [61].
In other words, while the Tribunal found that the Board and the Committee had exchanged information, the Tribunal made no finding to the effect that the Board and the Committee had acted in concert, or that either had endeavoured to influence the actions of the other. Further, as I have already noted,[79] the Tribunal held that the exchange of information between the Board and the Committee was authorised by the LPA, and that there was nothing unfair or improper in the exchange of information between the Board and the Committee.[80] Counsel for Mr Rayney properly conceded that there was no evidence that either the Board or the Committee were suggesting to the other what action should be taken in the performance of that other's functions,[81] and the evidence to which counsel referred in argument is incapable of establishing anything more than the exchange of information between the Board and the Committee, as found by the Tribunal. To the contrary, the evidence of the communications between the Board and the Committee which I have already summarised reveals an assiduous attention to and respect for the boundaries of the exclusive functions conferred upon the Board and the Committee which are delineated in the various provisions of the LPA to which I have referred.
[79] At [50] above.
[80] LPCC and Rayney [57] ‑ [59], [65].
[81] Appeal ts 50.
So, in summary, the Tribunal did not find nor is there any evidence capable of establishing that either the Board or the Committee went beyond the boundaries of the exclusive functions conferred upon each by the LPA, or engaged with each other in any way unauthorised by the LPA, or endeavoured to influence the other in the performance of its functions, or acted in concert in relation to the performance of their respective functions.
Ground 1 - privity and estoppel - the law
In the circumstances of this case the legal principles relevant to the resolution of ground 1 can be sufficiently distilled from two recent decisions of the High Court of Australia.
Tomlinson v Ramsey Food Processing Pty Ltd[82]
[82] Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507.
In Tomlinson v Ramsey Food Processing Pty Ltd the question was whether the making of a claim by the Fair Work Ombudsman which resulted in declarations and orders by a court in civil penalty proceedings created an issue estoppel upon which a respondent to that proceeding was entitled to rely in subsequent common law proceedings brought against it by a worker (who was not a party to the initial proceedings). Although the critical issue in Tomlinson turned upon issue estoppel, the observations made by the court extend to other categories of estoppel including, relevantly to this case, what has come to be known as Anshun estoppel, and broader principles relating to abuse of process.
The plurality referred to three forms of estoppel arising from the manner in which contested proceedings are conducted or resolved recognised by the common law of Australia.[83] Two of those forms of estoppel arise from the prior determination of a cause of action or issue. As neither the issues nor the claims which the Committee wishes to advance in its proceedings before the Tribunal have been previously resolved or determined by the Tribunal, neither of those forms of estoppel has any application to this case.
[83] Tomlinson [22] (French CJ, Bell, Gageler & Keane JJ).
The latter question is to be assessed in the context of s 424 of the LPA,[148] which stipulates, in imperative terms, the course which the Committee is to follow when it concludes an investigation under s 421 of the LPA. Those terms essentially require the Committee to elect which of the alternative possible courses will be followed after its investigations have been completed. So, the LPA expressly contemplates, consistently with good sense, that when the Committee initiates an investigation into the conduct of a practitioner, it will complete that investigation and then determine which of the alternative courses available under the LPA should be followed.
[148] Which I have also set out above at [108].
The reasons of the Tribunal do not expressly enunciate why it was thought that the Committee should not follow this normal course, although they suggest that two factors were significant in the Tribunal's conclusion:
(a)an inference to the effect that the Committee had all the information it needed to refer the matter to the Tribunal, without conducting any investigation; and
(b)the fact that an investigation would delay commencement of the Committee's proceedings in the Tribunal and imperil the prospect of those proceedings being heard in tandem with Mr Rayney's proceedings.
The first inference is contrary to the only evidence on the topic before the Tribunal, which was not challenged by cross‑examination or any evidence to the contrary. Nor was there any reason to doubt the evidence given on behalf of the Committee to the effect that it did not form a view with respect to the matters to be referred to the Tribunal until its investigations were complete. Part of the Committee's process of investigation involved requesting Mr Rayney to provide submissions in relation to the matters it was proposing to refer to the Tribunal - a process required by the principles of procedural fairness. In fact, the Committee determined not to refer some of the matters it had investigated to the Tribunal. Further, after the Committee refers a practitioner's conduct to the Tribunal, the Committee carries the burden of proving that the practitioner engaged in professional misconduct. In that context there is no obligation upon the practitioner to give evidence. The Tribunal's finding that the Committee's summons to Mr Rayney to produce information was unnecessary because all the matters addressed could have been dealt with in cross‑examination ignores:
(a)the burden of proof in matters referred to the Tribunal by the Committee; and
(b)the fact that there is no assurance that the practitioner will give evidence in such proceedings.
Further, the Tribunal's observation[149] that there was no explanation from the Committee as to why the summons for information was necessary is explained by the fact that the Committee was not on notice that there was any issue before the Tribunal with respect to the manner in which it had conducted its investigation.
[149] LPCC and Rayney [189].
The Tribunal's finding that the Committee unreasonably delayed the completion of its investigation into Mr Rayney's conduct and the commencement of its proceedings is addressed below, where it is concluded that the finding was not open on the evidence. It follows that none of the matters apparently relied upon by the Tribunal for its conclusion that investigation by the Committee was unnecessary were open to the Tribunal on the evidence. The Tribunal's conclusion that investigation by the Committee was unnecessary must be set aside.
Delay
The Tribunal found that the Committee had delayed the completion of its investigation and the commencement of its proceedings.[150] The Tribunal inferentially found that the Committee should have completed its investigation within a week of 2 June 2015 or by the end of June 2015, and noted that no explanation had been proffered as to why that had not occurred.[151] Of course, the reason why the Committee proffered no explanation of its conduct of the investigation was that it was not aware that this was a live issue before the Tribunal, which is the first reason why the Tribunal's findings with respect to delay must be set aside. However, there are other reasons.
[150] LPCC and Rayney [172] ‑ [174], [248] ‑ [249], [257], [259].
[151] LPCC and Rayney [174].
As I have noted above, the Committee gave Mr Rayney notice of its investigation into his conduct in December 2013. In February 2014 Mr Rayney's solicitors proposed that the Committee defer its investigation until the TIA charges had been determined. In effect the Committee agreed with that proposal. Mr Rayney was acquitted of the TIA charges on 7 May 2015. On 20 May 2015 the Committee wrote to Mr Rayney's solicitors requesting a response to the matters of which Mr Rayney had been notified in December 2013. Mr Rayney's solicitors requested an extension of time for the provision of that response on 28 May 2015, and again on 8 June 2015. The Committee agreed to extend the time for the provision of that information until 8 July 2015. So, the time for Mr Rayney's response to the matters of which he had been notified by the Committee had not expired by the time at which the Tribunal concluded the Committee's investigations should have been complete. In that factual context, the Tribunal's conclusion that the Committee's investigation should have been completed not later than the end of June 2015 was contrary to the only evidence on the subject and must be set aside.
Mr Rayney responded to the matters identified by the Committee in December 2013 by letter from his solicitors dated 9 July 2015. Five days later the Committee requested copies of certain documents from Mr Rayney's solicitors which were provided two days later, on 16 July 2015. The following day the Board gave Mr Rayney notice of its decision that his practising certificate would be cancelled, and a week later, on 24 July 2015 Mr Rayney commenced his proceedings in the Tribunal. Mr Rayney's commencement of proceedings in the Tribunal gave rise to the communications between Mr Rayney's solicitors and the Committee during August 2015 with respect to the overlap between Mr Rayney's proceedings and the matters under investigation by the Committee which I have set out above. In the course of that correspondence Mr Rayney's solicitors made clear that he would oppose any deferral of the hearing of his proceedings notwithstanding the evident overlap between the matters in issue in those proceedings, and the matters under investigation by the Committee.
In that context the Committee issued a summons for information on 25 August 2015. For the reasons I have already given, the Tribunal's conclusion that the summons was unnecessary because the matters addressed in it could be covered in cross‑examination of Mr Rayney ignores the forensic context of proceedings referred to the Tribunal by the Committee, and in particular ignores the fact that the Committee carries the burden of proving professional misconduct and that there can be no assurance that any practitioner will give evidence in the course of such proceedings.
Mr Rayney sought an extension of time within which to respond to the summons issued by the Committee and in the result the time for compliance was extended to 29 September 2015, when the information sought was provided by Mr Rayney. The Committee's proceedings were commenced 10 days later, on 9 October 2015.
The chronological sequence of the Committee's investigations which I have summarised above was clear from the evidence before the Tribunal. On that evidence there was no evidentiary basis for any finding to the effect that the Committee was guilty of delay in the conduct of its investigation of Mr Rayney's conduct or in the commencement of its proceedings. The Tribunal's finding to that effect was not open on the evidence before the Tribunal and must be set aside.
Consent as to dictaphone recordings an issue in Mr Rayney's proceedings
The question of whether recordings made by Mr Rayney of conversations with his late wife using a handheld dictaphone were made with Mrs Rayney's knowledge or consent is central to the matters which the Committee wishes to pursue in its proceedings before the Tribunal. The Tribunal held that this issue was also 'very much a live issue' in Mr Rayney's proceedings.[152]
[152] LPCC and Rayney [226] ‑ [227], [236] ‑ [237], [239].
Inferentially the Tribunal made that finding on the basis of particulars provided by Mr Rayney's counsel in the course of submissions.[153] Those particulars rely upon five matters, the first being the statements of facts, issues and contentions filed by each of the Board and Mr Rayney in relation to Mr Rayney's proceedings. However, neither of those documents raises any issue with respect to whether or not the late Mrs Rayney consented to the recordings.
[153] LPCC and Rayney [225] ‑ [226].
Next the particulars refer to the Board's written opening submissions. However, there is nothing in those submissions which raises any issue with respect to consent to the recordings. Further, in the course of his oral opening, counsel for the Board expressly advised the Tribunal that the lawfulness of Mr Rayney's use of the handheld dictaphone was not an issue raised by the Board.[154] Counsel for Mr Rayney responded by observing that if he had known that the use of the dictaphones was not in issue it would have abbreviated the task of preparing Mr Rayney's statement.
[154] ts 62 ‑ 63 (20 October 2015).
The next matter identified in the particulars advanced on behalf of Mr Rayney is the witness statement filed on his behalf in the proceedings, which does make reference to his late wife's consent to the recordings. However, as I have just noted, it is clear from the statements made by Mr Rayney's counsel that the statement was prepared on the basis of a mistaken view as to the ambit of the matters put in issue by the Board in Mr Rayney's proceedings.
The next matter identified in the particulars provided on behalf of Mr Rayney concerns his cross‑examination, and part of that cross‑examination is set out at some length in the Tribunal's reasons for dismissing the Committee's proceedings.[155] However, although questions were asked in cross‑examination with respect to Mr Rayney's evidence to the effect that his late wife consented to the recording of their conversations, significantly, at no point in the cross‑examination was any challenge to that evidence mounted or even suggested. To the contrary the cross‑examiner permitted Mr Rayney to expand upon his evidence to the effect that there was consent for the recording, without challenge to that evidence, consistently with the position expressly enunciated in the course of his opening of the case.
[155] LPCC and Rayney [227].
The final matter identified in the particulars provided on behalf of Mr Rayney was various passages in the reasons given by the Tribunal for its decision in Mr Rayney's proceedings. However, the relevant portion of the Tribunal's reasons are in the following terms:[156]
Mr Rayney's evidence before the Tribunal was that Mrs Rayney was aware that he was recording their conversations. He said he informed her of this on the first occasion that he made a recording of their conversation (T:209); Exhibit N at [748], [757] and [794]).
Mr Rayney's evidence at [748] was:
Corryn couldn't care less that I tried to record our conversations. She did not use those words but it was almost like saying 'Go ahead, give it your best shot.'
(See also T:237239)
The recordings do not commence with a statement of the date and time. Similarly, the recordings do not commence with a statement that Mrs Rayney had consented to the recordings (Exhibit N at [754]). Mr Rayney's explanation is that to do so would have made it a 'formal event' which he wished to avoid (Exhibit N at [752]).
As noted, the Board did not pursue an allegation of a breach of the Surveillance Devices Act in relation to the use of the dictaphone to record conversations with Mrs Rayney. It is therefore unnecessary to make a finding as to whether this was done with or without Mrs Rayney's consent.
The significance of the first dictaphone recordings, their transfer to CDs, and the subsequent disposal of the first dictaphone and the second dictaphone by Mr Rayney, is that it provides part of the factual basis for the Board's allegation that improper disposal of the dictaphones was illegal.
[156] Rayney and Legal Practice Board of Western Australia [2016] WASAT 7 [119] ‑ [123].
So, in its reasons, the Tribunal expressly confirmed that the question of whether the late Mrs Rayney consented to the recordings was not an issue in Mr Rayney's proceedings and recorded that no finding was made by the Tribunal on that question. The reasons also expressly record that the relevance of the circumstances in which the recordings were made was that the evidence provided the factual basis for the Board's allegation that Mr Rayney improperly and illegally disposed of the dictaphones, which no doubt explains the line taken by counsel for the Board in cross‑examination of Mr Rayney.
When detailed attention is directed to the matters apparently relied upon by the Tribunal for its conclusion that the question of consent to the recording was 'very much a live issue' in Mr Rayney's proceedings, it is clear that the conclusion is contrary to the reasons expressly given by the Tribunal in those proceedings, and cannot be sustained by any of the evidence relating to the course of those proceedings. In those circumstances the finding must be set aside.
Oppression
The Tribunal found that the Committee's failure to have its proceedings heard in tandem with Mr Rayney's proceedings was 'clearly oppressive to Mr Rayney'.[157] The Tribunal gave two reasons for that conclusion - namely, that it was reasonable for Mr Rayney to have expected that all the factual issues would have been dealt with in one hearing, and that it would be unfair if Mr Rayney had to face another hearing in circumstances in which the Committee's proceedings could and should have been dealt with in October 2015.
[157] LPCC and Rayney [292] - see above [81].
The circumstances in which abuse of process will be found by reason of the oppressive effect of proceedings upon a litigant are not closed. However, considerations commonly taken into account in assessing the extent of oppression to a party include delay, whether subsequent proceedings are in substance the same or closely related to earlier proceedings, and whether the party was entitled to regard the matters raised in the subsequent proceedings as behind him.[158]
[158] See, for example, Gill v Walton (1991) 25 NSWLR 190, 201; Walton v Gardiner (398).
The sequence of events and the correspondence to which I have referred establishes that Mr Rayney was well aware that while there was an overlap between the matters taken into account by the Board when cancelling his practising certificate, and the matters under investigation by the Committee, the fields were not co‑extensive and the Committee wished to pursue matters which had not been pursued by the Board. That was clear from at least July 2015, and was unmistakeably clear after the Committee commenced its proceedings on 9 October 2015. With that knowledge Mr Rayney pressed the Tribunal for an order that his proceedings be heard in advance of the Committee's proceedings, and obtained a direction from the Tribunal to that effect. In those circumstances, it was not open to the Tribunal (in the sense that there was no evidence to support the finding) to conclude that Mr Rayney reasonably expected that all of the factual issues would have been dealt with in one hearing - to the contrary, the fact that they were not dealt with in one hearing was the consequence of the position which he knowingly adopted in relation to the hearing of the two matters in which he was involved.
The second matter relied upon by the Tribunal - namely, that it would be unfair for Mr Rayney to face another hearing when the Committee's proceedings could and should have been heard in tandem with Mr Rayney's proceedings - presumes that there was some material delay on the part of the Committee in the prosecution of its proceedings, a conclusion which is not sustained by any evidence, for the reasons I have given.
Turning to the considerations customarily considered when issues of oppression arise, in this case there was no evidence of significant delay when account is taken of the sequence of events and the position adopted by Mr Rayney. Further, at all material times after the issue of the Board's notice of cancellation of Mr Rayney's practising certificate it was clear that the matters under investigation by the Committee were not co‑extensive with the matters upon which the Board relied for its decision and therefore clear to Mr Rayney that he would not be entitled to regard all matters as behind him when his proceedings in the Tribunal were complete.
In these circumstances the Tribunal's finding of oppression was not open on any of the evidence before the Tribunal and must be set aside.
Double jeopardy
The Tribunal found that Mr Rayney's proceedings and the Committee's proceedings fell squarely within the concept of double jeopardy because the complaint in the Committee's proceedings arose out of the same pattern of conduct as gave rise to Mr Rayney's proceedings and there was a substantial degree of factual overlap between the issues.[159]
[159] LPCC and Rayney [245].
For the reasons I have already given, it was not open to the Tribunal (in the sense that there was no evidence to support the finding) to find that the complaints raised in the Committee's proceedings arose out of the same conduct as was put in issue in Mr Rayney's proceedings because the question of consent to the recordings made by Mr Rayney using the handheld dictaphone was not in issue in the proceedings which he commenced, nor was the question of whether he gave false evidence on that subject. Mr Rayney's conduct with respect to that evidence was well beyond the scope of the matters in issue in the proceedings which he commenced in the Tribunal. It was therefore not open to the Tribunal to conclude that there was a substantial degree of factual overlap between the issues in the two sets of proceedings. Nor was it open to the Tribunal to conclude that Mr Rayney was entitled to believe that all matters were behind him following the determination of his proceedings, for the reasons I have already given. The reasons given by Gleeson CJ in Gill v Walton[160] upon which the Tribunal expressly relied identify the latter consideration to be relevant to the assessment of double jeopardy.
[160] (1991) 25 NSWLR 190, 201.
For these reasons, the Tribunal's conclusion that the two sets of proceedings fell squarely within the concept of double jeopardy was not open on the evidence and must be set aside.
Multiple suits by the same entity
As I have noted,[161] the Tribunal found that the Committee's proceedings would bring the administration of justice into disrepute by requiring Mr Rayney to face multiple suits 'brought by the same entity'.[162] It will be apparent from the reasons I have already given that this finding cannot be sustained, because the Board and the Committee are not the same entity, nor are they privies in interest, nor is there a relevant connection or sufficient identification between the two entities in respect of the different proceedings in which they engaged to give rise to an abuse of process. The finding was not open on the evidence before the Tribunal and must be set aside.
Ground 4 - summary
[161] See above at [77].
[162] LPCC and Rayney [284].
The Committee has established that each of the findings challenged in ground 4 of the appeal was not supported by any evidence before the Tribunal, or arose from the failure to correctly apply relevant legal principles. Accordingly, ground 4 should be upheld in its entirety.
Ground 5 - failure to take account of relevant considerations
Ground 5 asserts that the Tribunal's finding that efficiency and economy demanded that the Committee's proceedings be heard in tandem with Mr Rayney's proceedings is vitiated by a failure to take into account relevant considerations, being essentially the position adopted by Mr Rayney and the orders made by the Tribunal with respect to the hearing of his proceedings. Given the limited ambit of an appeal to this court from the Tribunal, this ground can only succeed if it is established that the Tribunal failed to take into account a matter which it was legally obliged to consider as a condition of the valid exercise of its jurisdiction.[163]
[163] See Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 ‑ 40 (Mason J).
It is a singular feature of the Tribunal's decision that it concluded that the Committee's proceedings constituted an abuse of process because those proceedings would result in a multiplicity of hearings when:
(a)both proceedings were on foot at the time the first proceedings were heard;
(b)it was clear to all that the hearing and determination of the first proceedings would not resolve all the issues in the second proceedings;
(c)it was therefore clear to all that if the first proceedings were heard in advance of the second hearings, a multiplicity of hearings was inevitable;
(d)with knowledge of both proceedings the party now claiming the second proceedings are an abuse of process insisted that the first proceedings be heard at a time which would preclude them being heard in tandem with the second proceedings;
(e)with knowledge of both sets of proceedings and their different ambits, the Tribunal ordered that the first proceedings be heard at a time which would preclude them being heard in tandem with the second proceedings, thereby rendering a multiplicity of hearings inevitable.
I am not aware of any previous case of Anshun estoppel or abuse of process said to arise from the prospect of a multiplicity of hearings which had any one of these features, let alone all of them.
The Tribunal justified its conclusion by reference to the Committee's unexplained failure to ensure that its proceedings were heard in tandem with Mr Rayney's proceedings, which was in turn based upon the Tribunal's finding that the Committee was guilty of delay in the conduct of its investigation and the commencement of its proceedings. For the reasons I have already given, that process of reasoning cannot be sustained. However, it was precisely that process of reasoning that caused the Tribunal to conclude that the position adopted by Mr Rayney with respect to the hearing of his proceedings, and the fact that it was the directions made by the Tribunal, cognisant of the two sets of proceedings, which resulted in them being heard separately, were each irrelevant to the question of abuse of process.[164]
[164] LPCC and Rayney [258] ‑ [259].
Nevertheless, the fact that the process of reasoning which caused the Tribunal to conclude that those matters were irrelevant cannot be sustained does not result in the success of this ground of appeal unless the circumstances in which the multiple proceedings came about, and in which the prospect of multiple hearings arose, were matters which the Tribunal was obliged to take into account in the exercise of its jurisdiction. For the reasons which follow, those matters were considerations which the Tribunal was obliged to take into account, with the result that its conclusion that they were irrelevant vitiates its decision.
It is clear from the authorities to which I have referred that a decision as to whether there has been an abuse of process in any case will require what has been described in the authorities as a 'broad merits‑based decision'. While the categories of case in which an abuse will be found and the circumstances relevant to the broad merits‑based decision are not confined or predetermined, it is clear that all matters which are logically or rationally relevant to the determination must be taken into account. In cases in which the abuse is said to arise from a multiplicity of proceedings giving rise to a multiplicity of hearings, the conduct of all parties is relevant, including the conduct of the party who claims to have suffered by reason of the alleged abuse of process. Further, the particular circumstances in which the multiplicity of hearings comes about is necessarily relevant to the value judgment which must be made in such cases.
It follows that in this case it was necessary for the Tribunal to take into account and evaluate the significance of the fact that Mr Rayney elected to proceed with the hearing of his proceedings, and that the Tribunal directed the hearing of those proceedings, in circumstances in which it was clear to all that those proceedings would not resolve all matters in issue between Mr Rayney and the Committee, and that therefore an inevitable consequence of the stance adopted by Mr Rayney and endorsed by the Tribunal was a multiplicity of hearings.
This conclusion is supported by the decision of the English Court of Appeal in Stuart v Goldberg Linde[165] relying upon and applying another decision of the Court of Appeal, Aldi Stores Ltd v WSP Group Plc.[166]
[165] [2008] EWCA 2; [2008] 1 WLR 823.
[166] Aldi Stores Ltd v WSP Group Plc [2007] EWCA Civ 1260; [2008] 1 WLR 748.
In Aldi it was made clear that the positions adopted by the respective parties were of considerable significance to the assessment of whether or not there was an abuse of process. In particular, in that case, the fact that one of the parties, Aldi, had made its intention to commence another set of proceedings clear, and the other party had made no response to that clear statement of intention was held to be relevant to the question of whether the second proceedings were an abuse of process.[167] In that context Longmore LJ observed:[168]
[I]t seems to me to be inappropriate to make no response at that stage but then at a later stage, when intentions turn into action, to assert that that action is an abuse of process.
[167] Aldi [22] (Thomas LJ, Wall & Longmore LJJ agreeing).
[168] Aldi [39].
The same observations might be made in this case. The Committee had made its intentions clear with respect to the possibility of commencing proceedings against Mr Rayney which would extend beyond the matters upon which the Board relied for the purpose of cancelling Mr Rayney's practising certificate. With that knowledge, and therefore with knowledge of the prospect of a further hearing following the determination of the proceedings which he had commenced in the Tribunal, Mr Rayney pressed for and obtained orders which had the effect that his proceedings were heard separately from the Committee's proceedings. When the Committee's expressed intentions became a reality and it commenced proceedings raising issues which went beyond the issues raised in Mr Rayney's proceedings, he continued to press for a hearing of his proceedings at a time which would preclude them being heard in tandem with the Committee's proceedings. In those circumstances it is difficult to see how he could be heard to contend that the separate hearing of the Committee's proceedings gave rise to an abuse of process, although, of course, that is not in fact what Mr Rayney contended. As I have noted his case was based solely on the proposition that the Committee was bound by the Board's election not to pursue the matters which the Committee wished to pursue.
In Aldi all members of the court also made it clear that in cases where there was a prospect of multiple proceedings, it was essential for the parties to bring that prospect to the attention of the court in order that the court could make appropriate directions in both the interests of the parties and the public interest.[169] Precisely the same point was made by the Master of the Rolls, Sir Anthony Clark in Stuart v Goldberg Linde, in reasons which emphatically endorsed the approach taken in Aldi.[170]
[169] Aldi [29] ‑ [31] (Thomas LJ), [36] (Wall LJ), 42 (Longmore LJ).
[170] Stuart v Goldberg Linde [91] ‑ [92].
In this case the Committee quite properly brought the prospect of multiple proceedings to the attention of the Tribunal at the earliest opportunity, and repeatedly thereafter. With knowledge of the prospect of multiple hearings the Tribunal made directions which converted that prospect into an inevitability, and rejected the Committee's implicit invitation to make directions which would enable all matters to be heard concurrently. In those circumstances, in the absence of a finding of fault or neglect on the part of the Committee[171] it is manifestly unreasonable to attribute responsibility for the multiplicity of hearings to the Committee and to characterise the Committee's conduct as an abuse of process.
[171] As I have noted, no assertion of fault or neglect on the part of the Committee was made on behalf of Mr Rayney, and although the Tribunal found such default and neglect, that finding cannot be sustained for the reasons I have given.
For these reasons, the position adopted by Mr Rayney with respect to the hearing of these proceedings, and the fact that the Tribunal made directions which would inevitably result in a multiplicity of hearings were each matters which the Tribunal was obliged to take into account and evaluate when assessing whether or not the Committee's proceedings were an abuse of process. Because the Tribunal took the view that those matters were irrelevant, on the basis of its erroneous findings with respect to the conduct of the Committee, it excluded from consideration matters which it was obliged to evaluate, thereby vitiating its decision. Ground 5 must be upheld.
Ground 6
Ground 6 asserts that the Tribunal erred in law by finding that the Committee's proceedings were an abuse of process because the Committee could and should have brought its proceedings such that they could be heard in tandem with Mr Rayney's proceedings, because that conclusion depended upon the errors made and identified in grounds 4 and 5. It seems that the ground has been included out of an abundance of caution, so as to ensure that the Tribunal's ultimate conclusion on what I have described as the second substantive reason for dismissing the Committee's proceedings was directly challenged by a ground of appeal.
It will be apparent from the reasons I have already given that the Tribunal's ultimate conclusion on that issue depended upon the various steps in the process of reasoning which are challenged by grounds 4 and 5. It follows that the success of those grounds necessarily results in the success of ground 6.
The written submissions advanced on behalf of Mr Rayney in opposition to this ground draw attention to the Committee's failure to adduce any evidence on the question of whether it could have commenced its proceedings in such a way that they could be heard in tandem with Mr Rayney's proceedings. In that context it is submitted that:[172]
It was open for the Tribunal, in the absence of any evidence, to conclude that the [Committee] had a proper opportunity to proceed in tandem with the review proceedings and in the circumstances of this matter, should have done so.
In this regard, the [Committee's] conduct of the application before the Tribunal failed to discharge an evidentiary onus on the [Committee] to explain to the Tribunal why it could contend it was not reasonable to proceed in tandem with the Board's proceedings.
[172] Respondent's submissions [38] ‑ [39].
The obvious flaw in these submissions is that Mr Rayney never contended to the Tribunal that an abuse of process arose from the Committee's failure to ensure that its proceedings were heard in tandem with Mr Rayney's proceedings. There was therefore no reason for the Committee to adduce any evidence on that topic nor any evidentiary onus upon the Committee to explain its position to the Tribunal.
For these reasons ground 6 must be upheld.
Summary and conclusion
For these reasons all grounds of appeal should be upheld. As the effect of the Tribunal's decision was to dismiss the Committee's proceedings prior to any determination of those proceedings on their merits, leave to appeal should be granted, the appeal allowed, the decision of the Tribunal dismissing the Committee's proceedings set aside and Mr Rayney's application to dismiss those proceedings should itself be dismissed. The matter should be remitted to the Tribunal differently constituted for substantive hearing and determination.
MURPHY JA: I agree that the appeal should be allowed for the reasons given by the Chief Justice. In relation specifically to ground 4, I agree that the ground should be allowed on the bases that the challenged findings are not supported by any evidence before the Tribunal or arose from the failure to correctly apply relevant legal principles. It is unnecessary, for the disposition of this appeal, to consider the contention that 'Wednesbury' unreasonableness may apply to fact‑finding as opposed to discretionary decisions.
CORBOY J: I agree with Martin CJ.
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