Legal Services and Complaints Committee and Dangubic & Anor

[2024] WASAT 7

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION:   LEGAL SERVICES AND COMPLAINTS COMMITTEE AND DANGUBIC & ANOR [2024] WASAT 7

MEMBER:   JUDGE F VERNON, DEPUTY PRESIDENT

HEARD:   12 FEBRUARY 2024

DELIVERED          :   Ex tempore

PUBLISHED           :   15 FEBRUARY 2024

FILE NO/S:   VR 113 of 2022

BETWEEN:   LEGAL SERVICES AND COMPLAINTS COMMITTEE

Applicant

AND

VITOMIR DANGUBIC

Respondent

AND

DOUGLAS MATELJAN

Applicant for compensation order

Catchwords:

Limits of compensation order - Meaning of words 'because of the conduct concerned' - Whether a person claiming compensation must be given leave to intervene in the disciplinary proceedings or may apply for a compensation order in their own right

Legislation:

Interpretation Act 1984 (WA), s 37(1)(b), s 37(1)(d), s 37(1)(f)
Legal Profession Act 2008 (WA), s 402, s 403, s 438(1), s 438(2), s 438(2)(b), s 439, s 440, s 441, s 441(c), s 443, s 448(1), s 448(2), s 448(2)(c), s 448(5), s 449, s 449(1), s 449(1)(a), s 449(1)(b), s 449(2), s 450, Pt 13, Div 10, Div 11
Legal Profession Uniform Law Application Act 2022 (WA), s 261
State Administrative Tribunal Act 2004 (WA), s 3(1), s 36(1), s 36(1)(a), s 37, s 37(3), s 38, s 56(2)

Result:

Application for compensation to proceed and mediation ordered

Representation:

Counsel:

Applicant	:	J Winton
Respondent	:	G Grasa
Applicant for compensation order	:	In Person

Solicitors:

Applicant	:	N/A
Respondent	:	GG Legal
Applicant for compensation order	:	N/A

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

Legal Profession Complaints Committee and Lawson [2021] WASAT 152 (S)

Re The State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125

REASONS FOR DECISION OF THE TRIBUNAL:

(This decision was delivered extemporaneously on 12 February 2024 and has been edited from the transcript).

Introduction

1. By an application lodged on 19 December 2022, the Legal Services and Complaints Committee (LSCC) brought disciplinary proceedings against Vitomir Dangubic under the provisions of the Legal Profession Act 2008 (WA) (LP Act) in relation to Mr Dangubic's conduct while acting for Douglas Mateljan (the disciplinary proceedings).  

2. The LP Act has been repealed by the Legal Profession Uniform Law Application Act 2022 (WA) (Application Act). However, the LP Act continues to apply to these proceedings and the Tribunal's powers under the LP Act are preserved by the operation of s 37(1)(b), (d) and (f) of the Interpretation Act 1984 (WA) and s 261 of the Application Act.

3. The disciplinary proceedings were resolved by agreement between the LSCC and Mr Dangubic on 31 May 2023.  On 13 November 2023 the Tribunal constituted by President Pritchard, Senior Member Aitken and Member Povey made orders in accordance with the parties' agreement (the November 2023 Orders).  By order 1 of the November 2023 Orders the Tribunal determined that the Tribunal was satisfied that Mr Dangubic had engaged in professional misconduct in the manner set out in order 1 of those orders on the basis of the facts agreed by the LSCC and Mr Dangubic, set out in a statement of agreed facts annexed to the November 2023 Orders (Agreed Facts).

4. By an application dated 10 May 2023, Douglas Mateljan seeks an order for compensation against Mr Dangubic.  Mr Mateljan claims to have suffered loss as a result of conduct which is largely, but not completely, beyond the scope of the Agreed Facts and the Tribunal's determination in order 1 of the November 2023 Orders.  Mr Mateljan also makes complaints about the conduct of the LSCC in the handling of his complaint to the LSCC about Mr Dangubic.

5. On 19 September 2023 Mr Mateljan's application was listed for directions hearing before President Pritchard.

6. At that time the LSCC submitted that, in order for the Tribunal to hear Mr Mateljan's application for compensation, Mr Mateljan would first have to be given leave to intervene in the disciplinary proceedings pursuant to s 37 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) or otherwise be joined as a party pursuant to s 38 of the SAT Act. Mr Dangubic's counsel supported the LSCC position in that respect.

7. President Pritchard made orders programming the question of whether Mr Mateljan should be given leave to intervene in the disciplinary proceedings to the hearing on 12 February 2024.  However, President Pritchard did not determine the question of whether Mr Mateljan required leave to intervene in the disciplinary proceedings in order to apply for a compensation order.  Accordingly, that question still falls to be determined by me.

8. For the reasons set out below, I have determined that:

   (a)As the person claiming to have suffered loss as a result of Mr Dangubic's conduct that has been the subject of the disciplinary proceedings, Mr Mateljan is entitled to apply for a compensation order under s 448 of the LP Act;

   (b)That application is related to the disciplinary proceedings but is brought separately by Mr Mateljan as the applicant. Accordingly, pursuant to s 36(1) of the SAT Act, he is a party to the proceedings by which the compensation order is sought. He is not, however, a party to the disciplinary proceedings;

   (c)The requirement s 449(1)(a) of the LP Act that, in the absence of agreement by the practitioner and the person claiming to have suffered the loss, the Tribunal may not make a compensation order unless satisfied that the loss was suffered 'because of the conduct concerned' limits the Tribunal's power to order compensation to any losses the Tribunal finds Mr Mateljan has suffered because of the conduct the Tribunal has determined, by order 1 of the November 2023 Orders, to be professional misconduct by Mr Dangubic;

   (d)Accordingly, the evidence advances and submissions made at the hearing of Mr Mateljan's application for compensation must related to the loss, if any, that Mr Mateljan claims to have suffered as a result of the professional misconduct identified in the November 2023 Orders.

Interpretation of the LP Act and SAT Act

1. It is convenient to deal first with the basis upon which the Tribunal may make a compensation order under the LP Act before considering how an application for such an order may be brought before the Tribunal.

On what basis may a compensation order may be made?

1. The Tribunal has power to make a compensation order under s 441(c) of the LP Act. However, under s 438(1) and (2) of the LP Act and leaving aside for the moment the power under s 443 to make interim and interlocutory orders, that power can only be exercised after the Tribunal has determined that it is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct as those terms are defined by s 402 and s 403 of the LP Act respectively.

2. The term 'compensation order' is relevantly defined in ss 448(1) and 448(2)(c) of the LP Act which provide:

   (1)A compensation order is an order made to compensate a person (the aggrieved person) for loss suffered because of the conduct of an Australian Legal Practitioner that is the subject of a complaint by that person or is investigated by the Complaints Committee of its own initiative. 

   (2)A compensation order consists of one or more of the following —

   …

   …

   (c)an order that the practitioner pay to the aggrieved person, by way of monetary compensation for the loss, a specified amount. 

3. Prerequisites for making a compensation order are set out in s 449 of the LP Act which relevantly provides as follows:

   (1)Unless the aggrieved person and the Australian legal practitioner concerned agree, a compensation order is not to be made unless … or State Administrative Tribunal is satisfied —

   (a)that the aggrieved person has suffered loss because of the conduct concerned; and

   (b)that it is in the interests of justice that the order be made[.]

4. Accordingly, by s 449(1)(a) the Tribunal must find a causal connection between the loss claimed by the aggrieved person and 'the conduct concerned' before the Tribunal may make a compensation order.

5. Section 448(1) refers to the aggrieved person being compensated for loss suffered because of 'conduct' of a practitioner that is the subject of a complaint by the aggrieved person or is investigated by the LSCC of its own initiative. That is, the conduct for which the aggrieved person is to be compensated must first have been the subject of a complaint or investigation.

6. The Tribunal has no power under the LP Act to consider complaints against practitioners of its own motion. The only conduct the Tribunal can consider is that which is referred to it by the LSCC, which has been the subject of a complaint to the LSCC or which the LSCC has determined to investigate.

7. It was held in Legal Profession Complaints Committee and Lawson [2021] WASAT 152 (S) (Lawson) at [82] that the 'conduct concerned' is conduct that is the subject of a complaint or investigation by the LPCC (the equivalent of the LSCC). However, in that case the conduct under consideration fell outside the matters that had been the subject of the investigation by the LSCC. It was not, therefore, necessary for the Tribunal in that case to consider whether the words the 'conduct concerned' were, in fact, narrower in scope.

8. The mere fact that an aggrieved person claims to have suffered loss as a result of conduct specified in a compliant by that person, or by conduct referred by the LSCC to the Tribunal, cannot be a sufficient basis for a compensation order to be made.  That follows from the fact that the Tribunal has no jurisdiction to make a compensation order unless it has first found that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct. 

9. Accordingly, the 'conduct concerned' in s 449(1)(a) must be the practitioner's conduct that the Tribunal is satisfied amounts to unsatisfactory professional conduct or professional misconduct. An interpretation which allowed a compensation order to be made merely because the conduct was the subject of a complaint to the LSCC by the aggrieved person would potentially require the Tribunal, in an application for compensation, to hear evidence beyond the scope of the matters referred to it by the LSCC. An interpretation which allowed a compensation order to be made merely because the conduct had been referred to the Tribunal by the LSCC would potentially require the Tribunal to make findings beyond the scope of express power in s 438(1).

Who may seek a compensation order and by what means?

1. As has been said, the LSCC submits that before Mr Mateljan may seek an order, he must be a party to the disciplinary proceedings, either because he has been given leave to intervene in the proceedings under s 37(3) or because he is joined as a party under s 38 of the SAT Act.

2. The LSCC submits that, whilst it neither consents to nor opposes an order giving Mr Mateljan leave to intervene in the disciplinary proceedings, if Mr Mateljan is given leave, it should be upon conditions.  The LSCC says that Mr Mateljan should only be permitted to address the Tribunal on the questions of whether he has suffered loss because of the conduct found to be professional misconduct by the Tribunal in the Orders, if so what the quantum of that loss might be, and whether it is in the interests of justice that a compensation order be made.

3. Mr Dangubic opposes leave being given.  It is submitted on his behalf that:

   (a)First, only the LSCC may seek a compensation order;

   (b)Second, Mr Mateljan's claim for compensation arises from conduct beyond the scope of the Tribunal's findings of professional misconduct against Mr Dangubic; and

   (c)Third, that to the extent that Mr Mateljan appears to complain about how the LSCC has dealt with his complaints or the correctness of the Agreed Facts, Mr Mateljan has no standing to intervene.

4. To deal with the last submission first, to the extent that Mr Mateljan's complaints concern the LSCC's handling of his original complaints that is clearly beyond the scope of the Tribunal's consideration of whether a compensation order should be made under s 441 of the LP Act. The Tribunal has no power to investigate the conduct of the LSCC or to make any determination in relation to that conduct.

5. Turning to the submission that only the LSCC may seek such an order, in Lawson the Tribunal proceeded on the assumption that the person making the claim for compensation was entitled to seek that order.  The correctness of that assumption was not disputed by the LPCC at that time, and there was no need for the Tribunal to consider that point.  However, in my view, that position is correct and Mr Mateljan is entitled to bring an application for a compensation order in his own right.

6. Part 13 of the LP Act deals with complaints and discipline. The Tribunal's power to make a compensation order appears in s 438(2)(b) and s 441(c) in Div 10 of Pt 13 of the LP Act. However, compensation orders are separately dealt with under Div 11 of Pt 13.

7. As I have already noted, s 448(1) sets out the purpose of a compensation order, relevantly, to compensate a person for loss suffered because of the practitioner's conduct that is the subject of a complaint by that person to LSCC. The types of orders that may be made are set out in s 448(2) and include, in s 448(2)(c), an order that the practitioner pay to the aggrieved person, by way of monetary compensation for the loss, a specified amount. The amount of the order the Tribunal can make is limited, by s 448(5), to $25,000 unless the aggrieved person and the practitioner both consent to the order.

8. Again, as I have already said, s 449 sets out the prerequisites to making of compensation orders.

9. Subsection (1) relevantly provides that unless the aggrieved person and the practitioner agree, a compensation order is not to be made unless the Tribunal is satisfied:

   (a)that the aggrieved person has suffered loss because of the conduct concerned; and

   (b)that it is in the interests of justice that the order be made.

10. Subsection (2) provides, in effect, that a compensation order is not to be made in respect of any loss for which the aggrieved person has received or is entitled to receive compensation under a court order or where there has been a determination for payment of an amount under the Solicitors Guarantee Fund or any other fidelity fund of another jurisdiction.

11. Section 450 preserves the aggrieved person's right to pursue any other remedy available to the aggrieved person, but requires the compensation paid under the compensation order to be taken into account in any other proceedings by or on behalf of the aggrieved person in respect of the same loss.

12. There is nothing in the language of these sections that supports the interpretation contended for by Mr Dangubic's counsel that only the LSCC can make an application for a compensation order.  There is no express provision to that effect.  The references to the person suffering the loss as 'the aggrieved person' and concerning the setting off amounts recovered by that person for the same loss, support the conclusion that the appropriate applicant is the person claiming the loss and not the LSCC.

13. The person claiming the loss is the person most likely to be able to produce the evidence to support that claim, rather than the LSCC.  There is no provision for the LSCC to be required to investigate whether any such loss has occurred or by which the person aggrieved could require the LSCC to apply for the order.  Again, this supports the conclusion that the appropriate applicant is the person claiming the loss.

14. The submission that the LSCC is the only appropriate applicant is premised on the fact that it is only the LSCC that may bring disciplinary proceedings against a practitioner. That is certainly correct. The disciplinary process may be, but is not necessarily, initiated by a complaint, and the LP Act provides for the complainant to be informed of certain matters including the decision to refer the matter to the Tribunal. In addition, a complainant may participate in the proceedings before the Tribunal by giving evidence. However, the complainant does not have any say in the conduct of those proceedings by the LSCC. It is for the LSCC to decide whether, and on what basis, to settle the proceedings, subject to s 56(2) of the SAT Act which prohibits the Tribunal from making any order to give effect to a settlement unless satisfied it would have the power to make a decision in terms of the agreed settlement or in terms consistent with the terms of the agreed settlement.

15. However, in the Tribunal's view, that does not prevent an aggrieved person from applying for a compensation order. 

16. Under s 3(1) of the SAT Act, in contexts other than the Tribunal's review jurisdiction, the 'applicant' is defined as the person who either brings a 'matter' before the Tribunal or requests, requires or otherwise seeks that the 'matter' be referred to or otherwise be brought before the Tribunal. The words 'matter' is not defined in the SAT Act. However, that term would appear to include a claim by an aggrieved person to an entitlement to a compensation order in their favour, upon a finding of unsatisfactory professional conduct or professional misconduct being made.

17. If viewed as a separate, albeit necessarily related, matter to the disciplinary matter, those proceedings are commenced when the application for a compensation order is accepted by the executive officer. By s 36(1)(a) of the SAT Act, the applicant is a party to the proceedings, which proceedings would be limited to whether the applicant has satisfied the conditions for an order for compensation being made set out in s 449(1) of the LP Act.

18. This approach avoids the difficulty referred to in Re The State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125 at [41] that an intervener, unlike a party, will ordinarily be allowed only to support or oppose a position contended for by one or other of the parties to the proceeding and will not be permitted to expand on the issues to be decided. In this case, Mr Mateljan seeks to expand on the issues by applying for a compensation order not sought by the LSCC in the disciplinary proceedings.

19. It also avoids the difficulty that the LSCC has identified:  that Mr Mateljan may seek to relitigate the substance of the complaint which has been finally resolved by the November 2023 Orders and would, in the process, increase the costs to the parties and delay the final resolution of the proceedings, which delay would be contrary to the public interest.

20. The conclusion reached is, however, the same as that sought to be achieved by the conditions the LSCC proposed be placed on an leave to intervene:  that is Mr Mateljan will be limited in the evidence presented and submissions made to the Tribunal to the issue of whether he had suffered loss because of Mr Dangubic's professional misconduct as found by the Tribunal in the November 2023 Orders on the basis of the facts set out in the Agreed Facts, and the quantum of that loss, as well as whether it is in the interests of justice that a compensation order be made.

21. For the sake of completeness, the Tribunal does not consider that the provision in s 443 of the LP Act alters the position. That section provides that the Tribunal may make orders of the kind referred to in ss 439, 440 and 441 as interlocutory or interim orders in proceedings before making its final decision about a complaint against a practitioner. However, there are a number of orders in those sections which, in practice, would not be contemplated without a final decision being made, unless by agreement of the practitioner. The fact that the practitioner may consent to a compensation order being made in the disciplinary proceedings before a final decision is made does not, in my view, change the position in relation to an application made which is contested by the practitioner.

Comment on the ambit of the claim

1. Mr Dangubic's counsel has submitted that there is no evidence that any portion of the amount claimed by Mr Mateljan might be attributable to the conduct found to be professional misconduct.  However, that submission was made on the basis that Mr Mateljan required leave to intervene in the disciplinary proceedings, contrary to the Tribunal's determination.  That issue will have to proceed to a hearing.

2. However, without making any final determination on the matter, it appears from the documents filed in support of the application for compensation that Mr Mateljan's claim for compensation concerns, in large part, alleged conduct by Mr Dangubic that falls outside the scope of the findings of professional misconduct. 

3. Without going into detail, in summary, Mr Mateljan claims the costs of proceedings in Croatia to rectify an error in the title of land in Croatia so that it could be transferred into Mr Mateljan's name.  The disputed fees were charged by Mr Dangubic's firm in Western Australia and a Croatian firm.  There does not appear to be any dispute that Mr Dangubic's firm was first instructed in 2009 and the work was completed when the title was corrected in September 2013.  Mr Mateljan has been sued by the Croatian firm for unpaid fees, which action commenced in 2015, and is ongoing.  He claims the costs of defending those proceeding and additional damages arising, it appears, from the time he has spent defending those proceedings, rather than pursuing his own business interests.  This is on the basis of representations allegedly made on Mr Mateljan's behalf by Mr Dangubic in 2013.  Accordingly, the claimed loss would seem to have arisen many years before the conduct the subject of the November 2023 Orders, which concern Mr Dangubic's conduct in 2018 and 2019 in delaying in providing Mr Mateljan's documents to him and writing two letters that were false and misleading as to the extent of the documents enclosed under cover of those letters.

4. However, it appears possible from the Agreed Facts that Mr Mateljan may have incurred some cost as a result of the delay in returning his documents, given that on the Agreed Facts he instructed a solicitor to pursue recovery of the documents and it appears that the solicitor took action referred to in paragraphs 20, 21, 22, 28, and 30 of the Agreed Facts as a result of the failure to provide the documents.  Mr Mateljan also refers to some effect on the Croatian proceedings by the delay in obtaining the documents. 

5. No evidence has been provided in relation to those matters.  However, it may be possible for Mr Mateljan to do so before the application for a compensation order is heard.

Orders

The Tribunal orders:

1.The application for compensation is referred to mediation to commence at a date and time to be fixed for a duration to be fixed at 565 Hay Street, Perth, Western Australian.

2.By close of business on 16 February 2024, the parties are to provide the Tribunal with their unavailable dates for mediation.

3.The Legal Services and Complaints Committee is excused from attending the mediation.

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

PM

Associate to the Honourable Judge Vernon

15 FEBRUARY 2024