LEGAL SERVICES AND COMPLAINTS COMMITTEE and YOUNG
[2023] WASAT 108
•10 NOVEMBER 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: LEGAL SERVICES AND COMPLAINTS COMMITTEE and YOUNG [2023] WASAT 108
MEMBER: PRESIDENT PRITCHARD
MR D AITKEN, SENIOR MEMBER
MS M CONNOR, MEMBER
HEARD: 8 APRIL 2020, 2 JUNE 2020 AND 20 JULY 2020
DELIVERED : 10 NOVEMBER 2023
FILE NO/S: VR 90 of 2019
BETWEEN: LEGAL SERVICES AND COMPLAINTS COMMITTEE
Applicant
AND
NICOLE ANNE YOUNG
Respondent
Catchwords:
Vocational regulation - State Administrative Tribunal Act 2004 (WA) - Legal Profession Act 2008 (WA) - Costs application - Principles relating to Tribunal's discretion to award legal costs under s 87(2) of the State Administrative Tribunal Act 2004 (WA) - Principles in relation to an award of costs against regulatory body - Determining application for costs against regulatory bodies in the event of withdrawal of the disciplinary proceedings
Whether there was no reasonable basis for the application for disciplinary proceedings to be commenced and prosecuted - Where complaint was investigated by regulatory body - Where application alleged a breach of the Legal Profession Conduct Rules 2010 (WA) rule 43(3)(b) and/or rule 16(1) - Where practitioner participated in two radio interviews and made public comment about a criminal matter in which she was professionally engaged - Where regulatory body alleged the practitioner failed to give a fair and objective account of the matter in a manner consistent with the maintenance of the good reputation and standing of the legal profession - Where regulatory body alleged the practitioner attempted to further their client's matter by unfair or dishonest means - Construction of 'matter' - Construction of 'professionally engaged' - Construction of 'fair and objective' - Construction of 'account' - Construction of 'unfair or dishonest means'
Where there was no reasonable basis for the application to be commenced and prosecuted - Whether application commencing disciplinary proceedings was oppressive and/or an abuse of process - Whether the application commencing disciplinary proceedings was made other than in good faith
Legislation:
Criminal Code Act Compilation Act 1913 (WA), s 257, s 313(1)(a)
Interpretation Act 1984 (WA), s 37
Legal Profession Act 2008 (WA), s 402, s 403, s 421(1), s 421(2), s 424(1)(a), s 424(1)(b), s 424(1)(c), s 424, s 425, s 425(b), s 426, s 428, s 428(2), s 431, s 438, s 438(1), s 468, s 479, Pt 13
Legal Profession Conduct Rules 2010 (WA), r 3, r 16, r 16(1), r 32, r 37(1), r 37(5), r 43, r 43(1), r 43(2), r 43(3), r 43(3)(a), r 43(3)(b), r 43(3)(c), Pt 6
Legal Profession Uniform Law (WA)
Legal Profession Uniform Law Application Act 2022 (WA), s 6(2), s 57, s 260(a), s 261, s 269
State Administrative Tribunal Act 2004 (WA), s 9(b), s 32(2), s 47(1), s 87, s 87(1), s 87(2), s 87(3)
Result:
Respondent's costs application is dismissed
Category: B
Representation:
Counsel:
| Applicant | : | M Howard SC & later P Cahill SC |
| Respondent | : | SM Davies SC & N van Hattem |
Solicitors:
| Applicant | : | Legal Services and Complaints Committee |
| Respondent | : | McNally & Co Litigation |
Case(s) referred to in decision(s):
ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Briginshaw v Briginshaw [1938] HCA 34 60 CLR 336
Clough v Queensland Law Society Incorporated; Attorney-General v Clough [2002] 1 Qd R 116 [2000] QCA 254
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Laurent and Commissioner of Police [2009] WASAT 254
Legal Profession Complaints Committee and Amsden [2014] WASAT 57
Legal Profession Complaints Committee and Chang [2019] WASAT 67
Legal Profession Complaints Committee and Fleming [2006] WASAT 352
Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43
Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43 (S)
Legal Profession Complaints Committee and Khosa [2019] WASAT 143
Legal Profession Complaints Committee and Young [2020] WASAT 29
Legal Profession Complaints Committee v Brickhill [2013] WASC 369
Legal Profession Complaints Committee v Waters [2015] WASC 141
Legal Services and Complaints Committee and Lourey [No 2] [2023] WASAT 77
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Medical Board of Australia v Woollard [2017] WASCA 64
Medical Board of Western Australia and Kyi [2009] WASAT 22
Medical Board of Western Australia and Van Dort [2006] WASAT 214 (S)
Medical Board of Western Australia v Roberman [2005] WASAT 81 (S); (2005) 39 SR (WA) 47
Motor Vehicle Industry Board and Dawson (2006) 41 SR (WA) 343, [2006] WASAT 8
Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Quigley (A Practitioner) v The Legal Practitioners Complaints Committee [2003] WASCA 228
Re Maraj (a Legal Practitioner), Re; Legal Practitioner's Act 1893 (1995) 15 WAR 12
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Summerville and Department of Education and Training [2006] WASAT 368 (S)
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
Young v Legal Profession Complaints Committee [2022] WASCA 52
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings were commenced by the Legal Profession Complaints Committee (LPCC) against the Respondent (practitioner) in June 2019 (Application).
On 16 September 2019, the LPCC applied for leave to withdraw the Application.
By the time the LPCC had sought leave to withdraw the Application, the practitioner had applied for an expedited hearing (which had been listed), there had been one directions hearing and two mediations.
On 19 September 2019, the practitioner filed and served an affidavit in the Application proceedings entitled 'Affidavit in Support of Costs Application'.[1] While no formal application for costs was filed, the Tribunal and the LPCC were on notice through that Affidavit, together with the correspondence and submissions of the practitioner's counsel, Mr Davies SC, that costs were sought (Costs Application) pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The practitioner contended that an award of costs was appropriate on three bases: that there was no reasonable basis for the Application (no reasonable basis plank), that the LPCC's commencement and prosecution of the Application was oppressive and amounted to an abuse of process (oppression/abuse of process plank) and that the Application was brought other than in good faith (absence of good faith plank).
[1] Affidavit of Nicole Anne Young, sworn on 19 September 2018 (Exhibit 4) (Affidavit of Nicole Young).
The practitioner submitted[2] that having regard to the bases on which the Costs Application was brought, the LPCC should be ordered to pay costs on an indemnity basis.
[2] Respondent's submissions in support of an application for an order for costs, 10 January 2020 (Respondent's First Submissions) [2].
On 23 September 2019, the Tribunal gave leave for the LPCC to withdraw the proceedings, dismissed the proceedings, and programmed the hearing of the Costs Application. The Costs Application was eventually heard over two days,[3] but adjournment applications[4] took up additional hearing time for the Tribunal. That is far in excess of the time the Tribunal would ordinarily give to the hearing of a costs application. Despite the Tribunal's exhortations that the parties (each of whom was represented by senior counsel) should resolve the issue of costs by conferral and compromise, that proved impossible. It is something of an understatement to say that the Costs Application was vigorously pursued and defended.
[3] On 8 April 2020 and 20 July 2020.
[4] On 20 February 2020 and 2 June 2020.
While the Costs Application was made on the practitioner's behalf, the costs which she sought to recover were solely those incurred as a result of fees charged by Mr Davies SC, who acted on her behalf in the Application. Mr Davies SC was in fact retained by HHG Legal Group (HHG), the practitioner's then employer, pursuant to a costs agreement (retainer), on the basis that he would act for the practitioner.
Once the Costs Application was made, Mr Davies SC rendered invoices for the legal work he had undertaken in connection with the retainer, on 19 September 2019 (2019 invoice) and 20 February 2020 (2020 invoice). The LPCC ultimately did not dispute that the practitioner was liable for the fees set out in the 2019 invoice and 2020 invoice.
By our calculation, having regard to those invoices, Mr Davies SC performed approximately 51 hours and 40 minutes of legal work on the Application itself, but 54 hours and 30 minutes of legal work in respect of the Costs Application. However, the latter figure does not include the time taken in the hearing of the Costs Application (including in adjournment applications) which amounted to approximately 10 hours of hearing time. We will return to the quantum of the costs later in these reasons.
For the reasons set out below, we are not persuaded that this is an appropriate case for the award of costs against the LPCC. The Costs Application will therefore be dismissed.
In these reasons, we deal with the following matters:
(a)The Application made by the LPCC;
(b)The Tribunal's jurisdiction to deal with the Costs Application;
(c)The bases for the Costs Application;
(d)Principles in relation to the award of costs against regulatory bodies;
(e)Determining applications for costs against regulatory bodies in the event of a withdrawal of the proceedings;
(f)The evidence before the Tribunal on the Costs Application;
(g)Whether the practitioner has incurred any legal costs in respect of the Application;
(h)Why the 'no reasonable basis' plank of the Costs Application fails;
(i)Why the 'oppression / abuse of process' plank of the Costs Application fails;
(j)Why the 'absence of good faith' plank of the Costs Application fails;
(k)Concluding observations in relation to the quantum of costs sought;
(l)The orders which should be made.
Before dealing with those matters, we acknowledge that these reasons for decision are being delivered long after the Tribunal's usual time frame for delivering its decisions. That delay has been due to two primary factors.
First, while the Application was withdrawn before a final hearing, the bases for the Costs Application required the Tribunal to examine the LPCC's case in respect of the Application itself, as well as the conduct of the LPCC in the investigation (Investigation) (which preceded the filing of the Application) in its decision to commence the Application, and in its conduct of the Application. As counsel for the practitioner acknowledged, the arguments raised in support of the Costs Application involved some complexity, which was reflected in submissions which he described as 'dense'.[5] The regrettable consequence was that resolving the Costs Application took far more time than would ordinarily be required in respect of a costs application in the Tribunal.
[5] ts 52, 8 April 2020.
Secondly, having regard to the nature of the Costs Application and the very limited practical impact of its resolution, we have not been able to justify giving the determination of the Costs Application any priority over and above the determination of the many other matters heard by the members of the panel.
In addition, while we have been reserved on the Costs Application, the Court of Appeal delivered its reasons in an appeal against orders made by the Tribunal in other disciplinary proceedings against the practitioner, in VR 230 of 2018 (Other Proceedings) which were being pursued in the Tribunal at the same time as the Application. The appeal in respect of the Other Proceedings raised some similar issues to those advanced in support of the Costs Application. It was of considerable benefit to have the reasons of the Court of Appeal in the Other Proceedings in our determination of the Costs Application.
Having said that, we regret any inconvenience which may have been caused to the practitioner or her legal representatives, or to the LPCC, in awaiting the delivery of these reasons.
(a) The Application made by the LPCC
It is necessary, at the outset, to outline the case advanced by the LPCC against the practitioner in the Application.
In the Application, the LPCC sought a finding that the practitioner had engaged in unsatisfactory professional conduct pursuant to s 438(1) of the Legal Profession Act 2008 (WA) (LP Act). The basis for the Application was set out in grounds contained in Annexure A to the Application (Grounds).
The LPCC alleged that the practitioner engaged in unsatisfactory professional conduct in that on 5 and 6 December 2016 she gave two interviews on radio (radio interviews) in which she made public comment about a criminal matter in which she was professionally engaged, and that:
(a)she did not give a fair and objective account of the matter in a manner consistent with the maintenance of the good reputation and standing of the legal profession; and/or
(b)she attempted to further her client's matter by unfair means.
In summary, the factual allegations made by the LPCC in support of those allegations were as follows:
•The practitioner was acting for a client (Client) who was involved in a dispute with his ex-wife before the Family Court;
•In November 2016, the Client was charged with three counts of common assault in circumstances of aggravation, contrary to s 313(1)(a) of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code) (Charges). Two of the charges alleged that the Client had unlawfully assaulted his teenaged son, following a dispute about whether the son had been brushing his teeth (Toothbrushing Charges). The police's Statement of Material Facts (SMF), which outlined the facts alleged by the police in respect of the Toothbrushing Charges, alleged that the Client had held his son's head or neck, while using a toothbrush to brush the son's teeth with such force that it caused pain, and caused the son's gums to bleed. In respect of the third Charge, the facts alleged in the SMF were that the Client had pulled his young child by the arm, causing pain and leaving a red mark, and kicked the child in the shin, causing pain;
•The practitioner was instructed to act for the Client in relation to the Charges;
•The practitioner received instructions from the Client to the effect that the complaint to the police which gave rise to the Charges (Complaint) was made by the Client's disgruntled exwife in connection with the dispute in the Family Court, and that she should request that the police discontinue the Charges on the basis that they were not in the public interest or that the Complaint had been made for an improper purpose (Initial Instructions);
•On 22 November 2016, the practitioner sent the investigating police officer an email informing him of her Initial Instructions, and requesting an informal discussion before she made an application for the Charges to be discontinued;
•The Charges were first before the Magistrates Court on 28 November 2016 and remained in that Court until they were withdrawn by the prosecution in about November 2017;
•On or prior to 4 December 2016, the practitioner initiated contact with a public relations firm for the purpose of seeking engagement with the media, and she was subsequently approached by representatives of two radio stations requesting that she participate in an interview on radio;
•On 5 December 2016, the practitioner gave a radio interview which was broadcast on 6PR (6PR interview). The LPCC relied on the transcript of the 6PR interview;
•In paragraph [12] of the Grounds, the LPCC alleged that in the 6PR interview, the practitioner did not give a fair and objective account of the Charges in that:
[12.1]she represented that the ex-wife had made the Complaint;
[12.2]she represented that the Charges arose out of a parenting disagreement as to the son brushing his teeth;
[12.3]she suggested that the ex-wife had made the Complaint to further her interests in any custody / parenting dispute in the Family Court and so the Charges were not brought for a proper purpose;
[12.4]she represented that the Charges had only been brought because the Client's marriage to the ex-wife (marriage) had ended or was ending;
[12.5]she represented that the Charges were not appropriately brought by the police and were not police matters; and/or
[12.6]her account did not reflect the physical force and coercion alleged to have been used by the Client on the son, nor the pain and upset alleged to have been suffered by the son, in the material facts.
•In paragraph [13] of the Grounds, the LPCC alleged, in addition or in the alternative, that in the circumstances set out in [12.1][12.5] of the Grounds, the practitioner attempted to further the Client's matter by having the police discontinue the Charges by unfair means as she:
[13.1]made the representations and suggestions in paragraphs 12.1 – 12.5 above without knowing if they were true or not;
[13.2]made statements:
(a)that it was becoming 'more common' for:
(i)allegations of child abuse to be made when divorces or family disputes become 'very bitter and all sorts of allegations come out as the marriage unwinds'; and
(ii)the Department of Child Protection and increasingly the police to become involved;
(b)That the police 'are supposed to assess whether or not there's reasonable prospects of success. And, I would have thought this one would have been dropped, but I think it might be getting caught up in our domestic violence reform, because the police's discretion about whether to charge in relation to domestic violence has been taken away'
and thereby represented, without any, or any reasonable basis, that the Charges were brought largely as a result of a policy or directive and without regard to the physical force and coercion alleged to have been used by the Client on the son, nor the pain and upset alleged to have been suffered by the son, in the [SMF].
•On 6 December 2016, the practitioner gave a radio interview which was broadcast on 2GB (2GB interview).
•In paragraph [16] of the Grounds, the LPCC alleged that in the 2GB interview the practitioner did not give a fair and objective account of the charges in that:
[16.1]she represented that the Client's ex-wife had made the Complaint;
[16.2]she represented that the Charges had only been brought because the marriage had ended or was ending;
[16.3]she suggested that the Client's ex-wife had made the Complaint to further her interests in any custody/parenting dispute in the Family Court and so the Charges were not brought for a proper purpose;
[16.4]she represented that the Charges were not appropriately brought by the Police and were not properly police matters; and, or
[16.5]her account did not reflect the physical force and coercion alleged to have been used by the Client on the son, nor the pain and upset alleged to have been suffered by the son, in the material facts.
•In paragraph [17] of the Grounds, the LPCC also alleged, in addition or in the alternative, that in the circumstances set out in [16.1]-[16.5] of the Application the practitioner attempted to further the Client's matter by having the Police discontinue the Charges by unfair means as she:
[17.1]made the representation and suggestions in paragraphs 16.1 to 16.4 without knowing if they were true or not;
[17.2]referred to the bringing of the charges having 'something to do with the whole domestic violence thing over here at the moment. We're really cracking down and I think the police have just preferred the Charges and though[t] oh we'll just let the courts deal with it …' and thereby represented, without any, or any reasonable basis, that the Charges had been brought largely as a result of a policy or directive and without regard to the physical force and coercion alleged to have been used by the Client on the son, nor the pain and upset alleged to have been suffered by the son, in the [SMF].
•On 31 May 2017 the practitioner:
[18]… wrote to the police requesting that [they] consider discontinuing the Charges on the basis that there was no reasonable prospect of success, … in light of:
[18.1]additional evidence which had come to light [namely a statement by the Client's new partner, who had been present at the time of the alleged assaults the subject of the Charges];
[18.2]the Client's new partner's evidence that the Complaints were made by the ex-wife, which included a statement that the Complaints were made by the ex-wife immediately [after she became aware that the Client was planning to marry his new partner], and … that the Complaints … were brought by the ex-wife for the improper purpose of punishing the Client for his decision to leave [her]; and
[18.3]the Client having available to him the defence of 'reasonable correction of a child' which was intended to be raised at trial.
•On 30 October 2017, the Police applied to the Magistrates Court to discontinue the Charges;
•In or about November 2017, the Charges were dismissed for want of prosecution.
In paragraph [21] of the Grounds, the LPCC alleged that in the circumstances outlined in paragraphs [12], [16] and [18] of the Grounds, the practitioner breached rule 43(3)(b) of the Legal Profession Conduct Rules 2010 (WA) (Conduct Rules).
At the time, rule 43 of the Conduct Rules was in the following terms:
(1)Except as otherwise provided in this rule, a practitioner may —
(a)participate in any lecture, talk or public appearance; or
(b)participate in any radio, television or other transmission; or
(c)contribute to any written or printed publication.
(2)A practitioner must not publish or take steps towards the publication of any material concerning current proceedings that may prejudice a fair trial or otherwise subvert or undermine the administration of justice.
(3)A practitioner must not participate in or contribute to a forum of a type referred to in subrule (1) if the forum is, in whole or in part, about a matter in which the practitioner is or has been professionally engaged unless —
(a)participation is not contrary to the interests of the Client; and
(b)the practitioner gives a fair and objective account of the matter in a manner consistent with the maintenance of the good reputation and standing of the legal profession; and
(c)if the forum is of a type referred to in subrule (1)(b), the Client has given informed consent.
In addition, or in the alternative, in paragraph [22] of the Grounds, the LPCC alleged that in the circumstances set out in paragraphs [13] and [17] of the application, the practitioner breached rule 16(1) of the Conduct Rules.
At the time, rule 16 of the Conduct Rules provided that:
a practitioner must not attempt to further a client's matter by unfair or dishonest means.
In paragraph [23] of the Grounds the LPCC alleged that in either or both of the ways alleged in paragraphs [21] and [22], the practitioner's conduct fell short of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, had the potential to diminish public confidence in the administration of justice and was unsatisfactory professional conduct within the meaning of sections 402 and 438 of the LP Act.
(b) The Tribunal's jurisdiction to deal with the Costs Application
On 1 July 2022, the Legal Profession Uniform Law Application Act 2022 (WA) (Application Act) came into operation. By the operation of that Act, the LP Act was repealed,[6] and the Legal Profession Uniform Law (WA) (Uniform Law) was applied as a law of the State of Western Australia.[7] The repeal of the LP Act requires the Tribunal to consider the existence and source of its jurisdiction to deal with the Costs Application.
[6] Legal Profession Uniform Law Application Act 2022 (WA) (Application Act) s 260(a).
[7] Application Act s 6(2).
For the reasons given by the Tribunal in Legal Profession Complaints Committee and Goldsmith[8] the effect of s 261 of the Application Act, together with s 37 of the Interpretation Act 1984 (WA), is that the Costs Application must be determined in accordance with the provisions of the LP Act.
[8] Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43 (S) at [6] – [35]. The decision in Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43 was the subject of a successful appeal, but not on this point.
However, as the LPCC was established under the LP Act, the repeal of that Act means that the LPCC no longer exists. The Legal Services and Complaints Committee was established under the Application Act,[9] and that Committee is the same entity as, and a continuation of, the LPCC.[10]
[9] Application Act s 57.
[10] Application Act s 269.
Consequently, we consider that the correct name of the applicant in these proceedings should now be the Legal Services and Complaints Committee. Subject to hearing from the parties, it appears to be appropriate to make an order to amend the name of the applicant to be the Legal Services and Complaints Committee instead of the LPCC. Nevertheless, for the sake of convenience, we will continue to refer to the applicant in these reasons as the LPCC.
(c) The bases for the Costs Application
As we have already mentioned, there were three planks to the argument advanced by counsel for the practitioner that an award of costs against the LPCC was warranted in this case.
First, counsel for the practitioner advanced the no reasonable basis plank, namely that there was no reasonable basis for the Application to be commenced and prosecuted. He submitted that the LPCC had no reasonable case of a breach of rule 43(3)(b) or rule 16(1) of the Conduct Rules, because the LPCC did not have available to it the evidence necessary to establish a breach of either rule, having regard to the way the Application was framed in paragraphs [21]-[23] of the Grounds.[11]
[11] Respondent's First Submissions [1(a)].
Secondly, counsel for the practitioner advanced the oppression/abuse of process plank, namely that the LPCC's commencement and prosecution of the Application was oppressive and amounted to an abuse of process for the following reasons:
(i)The LPCC had no reasonable basis for the Application and in those circumstances, the commencement and prosecution of the Application would work an abuse of process because the practitioner could not fairly and properly defend the case against her, given that she was obliged to maintain the confidentiality of communications with the Client (LPP argument) which were the subject of legal professional privilege (LPP);[12] and/or
(ii)The LPCC's conduct formed part of a course of conduct by it that amounted to oppression of the practitioner, and for that reason constituted an abuse of process.[13] This argument did not depend on whether there was a reasonable basis for the Application, but contended that the manner in which the LPCC pursued the practitioner amounted to oppression, and an abuse of process.[14]
[12] Respondent's First Submissions [1(b)].
[13] Respondent's First Submissions [1(d)].
[14] Respondent's First Submissions [2(b)].
Thirdly, counsel for the practitioner advanced the absence of good faith plank, namely that the Application was made other than in good faith because the LPCC knew that it had no reasonable basis for the Application to be made and prosecuted in that it did not have the evidence to establish a breach of the Conduct Rules and knew that the practitioner could not properly defend the Application because of the LPP argument, and therefore knew or ought to have known, from the outset, or from 16 March 2018 (when Mr Davies SC wrote to the LPCC in relation to these issues) that the commencement and prosecution of the Application would work an abuse of process.[15]
[15] Respondent's First Submissions [1(c)].
Counsel for the practitioner submitted that each argument provided a basis on which the Tribunal would be entitled to award costs on an indemnity basis.[16]
[16] Respondent's First Submissions [2].
The LPCC opposed any award of costs against it. The LPCC submitted that the practitioner had not demonstrated any basis for an award of costs against it, having regard to the principles in relation to the award of cost against regulatory bodies in the Tribunal.
It is convenient to recall those principles before addressing the arguments advanced by counsel for the practitioner.
(d) Principles in relation to the award of costs against regulatory bodies
As we have already observed, the Costs Application was made pursuant to s 87(2) of the SAT Act.
The starting point in relation to any application for costs in the Tribunal is that, subject to any contrary provision in an enabling Act, the parties to proceedings bear their own costs unless the Tribunal orders otherwise.[17] However, the Tribunal has a discretion to order a party to pay all or any of the costs of another party.[18]
[17] State Administrative Tribunal Act 2004 (WA) (SAT Act), s 87(1).
[18] SAT Act, s 87(2).
The legal rationale for an order for costs under s 87(2) is that an order for costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. Accordingly, even in the statutory context where the presumptive position is that no costs will be ordered, generally speaking, the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The onus is on the party seeking an order in its favour.[19]
[19] Western Australian Planning Commission vQuestdale Holdings Pty Ltd [2016] WASCA 32 (Questdale) at [51] (Murphy JA, Corboy J agreeing); see also Young v Legal Profession Complaints Committee [2022] WASCA 52(Young v LPCC) at [259].
The Tribunal's discretion in relation to the award of costs is a wide one. Nevertheless, it is exercised judiciously and not capriciously.
In vocational regulatory proceedings, where a regulatory body is successful in obtaining relief for misconduct or unprofessional or unsatisfactory conduct by a respondent, it is common (if not ordinarily the case) for the Tribunal to order that the respondent pay all or some of the costs of the regulatory body.[20] (However, it is incorrect to assume, whether in regulatory matters or otherwise, that there is an established practice that an unsuccessful practitioner pays the regulator's costs or a contribution to their costs.[21]) When the Tribunal exercises its discretion to award costs in favour of a regulatory body, that approach reflects the public policy that regulatory bodies perform functions which promote the public interest, usually with limited resources, and the concern that the financial burden of bringing disciplinary action, if the regulatory body has no capacity to recover some or all of its costs, might act as a disincentive to bring such disciplinary action, or to ensure that all allegations against a practitioner are properly and thoroughly presented.[22]
[20] Medical Board of Western Australia v Roberman [2005] WASAT 81 (S); (2005) 39 SR (WA) 47 (Roberman) [30], referred to with approval in Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 (Paradis) [35]; Young v LPCC at [261] (Buss P).
[21]cf Western Australian Planning Commission v Questdale Holdings Pty Ltd[2016] WASCA 32 at [62].
[22] Roberman [30].
On the other hand, when a regulatory body is not successful in a disciplinary proceeding, a respondent has no entitlement to an order for costs against the regulatory body. That is because of the public policy consideration that the prospect of a costs order may dissuade or inhibit regulatory bodies from commencing proceedings that should be commenced and maintained in the public interest, despite the fact that success cannot be guaranteed. Consequently, the Tribunal's general approach is that 'unless it can be demonstrated that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs should not be awarded against [that body] simply because the application was not successful'.[23]
[23] Motor Vehicle Industry Board and Dawson (2006) 41 SR (WA) 343, [2006] WASAT 8 [47]; referred to with approval in Paradis [36]; see also Lourey v Legal Profession Complaints Committee [2012] WASCA 112 (Lourey 2012) [81] (Murphy JA, Pullin JA agreeing).
That approach is, in fact, merely an aspect of a broader principle in relation to the award of costs, including against regulatory bodies. In Medical Board of Western Australia and Kyi,[24] President Barker explained the Tribunal's approach as follows:
73… If a party has conducted itself in such a way as to unnecessarily prolong a hearing, has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious, or the proceedings in some other way constitute an abuse of process, then this may give rise to an exercise of the discretion to award costs. This encompasses a situation where proceedings should not have been maintained against a party because it is clearly untenable and no reasonable person would have believed they could be successful. These principles are also generally applicable to vocational regulation proceedings.
74Thus the Tribunal's discretion to award costs extends to ordering the payment of costs incurred unnecessarily by a failure of a party to act appropriately in a particular circumstance in the conduct of the proceedings. Considering the primary position of the Tribunal as a no costs jurisdiction, it is not sufficient merely to identify that a party may have conducted itself in a different manner and thereby reduced costs incurred; it will usually be necessary to show that the conduct of the party was unreasonable and unfairly caused the increased costs.
[24] Medical Board of Western Australia and Kyi [2009] WASAT 22 (Medical Board of Western Australia and Kyi) [73] – [74] referring to Summerville and Department of Education and Training [2006] WASAT 368 (S) at [23] – [44].
The well-established bases for an award of costs against a regulatory body—that the regulatory body lacked any reasonable basis for the disciplinary proceeding, or that the proceeding was not brought in good faith, or that the regulatory body's conduct of the proceeding constituted an abuse of process—reflect tests applied in the context of applications for summary dismissal under s 47(1) of the SAT Act.[25] In that context, those tests result in a very high threshold before the Tribunal's jurisdiction to summarily dismiss a proceeding will be exercised. By way of example, where proceedings are said to have no reasonable basis for the reason that they are misconceived or lacking in substance, the Tribunal's exercise of its discretion is reserved for the clearest of cases,[26] where it is apparent that the case will fail,[27] in that it is so obviously untenable that it cannot possibly succeed, or is manifestly groundless.[28] An especially cautious approach is taken to an application brought at a very early stage in the proceedings, when the evidentiary foundation for the case may not yet be apparent to the Tribunal.[29] Similarly, an abuse of process may be argued in any circumstances in which the use of the procedures of the Tribunal are unjustifiably oppressive to a party or would bring the administration of justice into disrepute.[30] But the Tribunal must be satisfied that the continuation of the proceedings would cause unacceptable injustice or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. A mere risk of unacceptable injustice or unfairness is insufficient to support an application for summary dismissal.[31]
[25] See, generally, Legal Profession Complaints Committee and Khosa [2019] WASAT 143 [11] – [25] and [35].
[26] Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57] (Gaudron, McHugh, Gummow & Hayne JJ); Batistatos v Roads and Traffic Authority of New South Wales[2006] HCA 27; (2006) 226 CLR 256 (Batistatos v Roads and Traffic Authority) [46] (Gleeson CJ, Gummow, Hayne & Crennan JJ); Spencer v Commonwealth of Australia [2010] HCA 28;(2010) 241 CLR 118 [24] (French CJ & Gummow J); Fancourt v Mercantile Credits Ltd[1983] HCA 25; (1983) 154 CLR 87, 99; Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, 602 ‑ 603 (Webster v Lampard) (Mason CJ, Deane & Dawson JJ).
[27] Webster v Lampard 602.
[28] Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 [8] (Deputy President Chaney J).
[29] Laurent and Commissioner of Police [2009] WASAT 254 [19].
[30] Medical Board of Australia v Woollard [2017] WASCA 64 (Medical Board of Australia v Wollard) [144], citing Batistatos v Roads and Traffic Authority [15].
[31] Medical Board of Australia v Woollard [136], [145], citing Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 [25].
An application for costs in the case of a withdrawal has some parallels with an application for summary dismissal. Each must be determined in the absence of a determination on the merits, and sometimes when the proceedings are in their earliest stages, when the pleaded case and the evidence in support of it are not yet finalised. For that reason, in our view, the application of the tests for summary dismissal provides a useful guide to how similar tests should be applied in relation to applications for costs in the event of a withdrawal of proceedings by a regulatory body. In cases where costs are sought on the basis that there was no reasonable basis for the proceeding, it would need to be apparent that the case would fail, or the case was so obviously untenable that it could not possibly succeed, before the Tribunal would be likely to draw the conclusion that there was no reasonable basis for the proceeding. Similarly, the Tribunal would require very clear evidence that the regulatory body had conducted the proceedings other than in good faith, or in such a way as to constitute an abuse of process.
A decision by a regulatory body to withdraw a disciplinary proceeding is not, in and of itself, an indication that there was no reasonable basis for the commencement of the proceeding, nor will it necessarily constitute the unreasonable conduct of a proceeding. Even a late application to withdraw may not be unreasonable if there is a change in circumstances which means that the proceedings should not continue. After all, regulatory bodies are expected to evaluate a case up until the time of hearing.[32]
[32] Medical Board of Western Australia and Kyi at [92]; Medical Board of Western Australia and Van Dort [2006] WASAT 214 (S) at [17].
Because the Oppression/Abuse of Process plank of the Costs Application relied, in part, on delay on the part of the LPCC, it is appropriate to mention how delay may be relevant in this context. Delay on the part of a regulatory body in investigating or prosecuting a disciplinary matter may be relevant to the extent that it may be indicative of a lack of good faith or if it provides a basis for casting doubt on whether the regulatory body had reasonable grounds for bringing the application.[33] It may also be relevant if the delay unnecessarily increased the costs of the regulatory body or of the practitioner.[34]
(e) Determining applications for costs against regulatory bodies in the event of a withdrawal of the proceedings
[33] Medical Board of Western Australia and Kyi at [83]; cf Young v LPCC at [263].
[34] Young v LPCC at [264].
In cases where a matter has proceeded to a final hearing, the Tribunal will be readily able to assess the basis for any application for costs against a regulatory body. In cases, such as the present, where an application to the Tribunal is withdrawn prior to a final hearing, the Tribunal is in a very different position. How, then, should the Tribunal approach an application for costs against a regulatory body in those circumstances?
Counsel for the practitioner submitted that in order to award costs in this case, it was not necessary for the Tribunal to make a positive finding that there was no reasonable basis for the Application, or to be positively satisfied that an abuse of process occurred, or to make a positive finding that there was oppression by the LPCC. He submitted that it would be enough if the Tribunal looked at all the materials before it, and took a broad brush approach to consider whether, on the basis of all of those materials, an order for costs should be made, bearing in mind that the ultimate question for the purposes of s 87(2) of the SAT Act was whether it was fair and reasonable that the practitioner be compensated.[35]
[35] ts 13 and 17, 20 July 2020.
Counsel for the LPCC submitted that it was not necessary for the Tribunal to effectively determine the underlying substantive merits of the proceeding which was withdrawn in order to determine a costs application. Counsel for the LPCC submitted that the approach which should be taken should reflect that taken on an application for summary determination, rather than determination of a matter at a final hearing.[36]
[36] ts 4, 20 July 2020.
In our view, in the context of an application for costs following the withdrawal of a proceeding, on the grounds that there was no reasonable basis for the proceeding, or that it was commenced other than in good faith or that it constituted an abuse of process, there are several reasons why it is not appropriate for the Tribunal to assess whether the high threshold applicable to those criteria is met by undertaking a detailed examination of the underlying merits of the case.
First, as has been observed in the context of costs applications following the withdrawal of civil proceedings without a hearing on the merits, the court should not resolve the costs application by 'try[ing] a hypothetical case action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided.'[37] Similarly, the proportionality of the costs incurred in a costs application must be borne in mind, especially in the Tribunal, which is subject to a statutory objective of minimising the costs to the parties.[38]
[37] Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624-5 (McHugh J).
[38] SAT Act, s 9.
Secondly, the application to withdraw the Application resulted in the Application being dismissed, without any consideration of the merits. The regrettable consequence of the bases for the Costs Application is that the Tribunal necessarily must consider whether there was a reasonable basis for the commencement of the proceedings in the Tribunal, and to that extent, involves some consideration of the available evidence. We are conscious that that consideration should not become a de facto trial of the practitioner for the alleged unsatisfactory professional conduct.
Thirdly, it would not be appropriate to undertake a detailed examination of the basis for the disciplinary case by reference to the way it is 'pleaded' in an application filed in the Tribunal. Proceedings in the Tribunal are not conducted by reference to formal pleadings, and in any event, the Tribunal is not bound by the practices or procedures applicable to courts, but rather acts according to the substantial merits of the case, without regard to technicalities and legal forms.[39] Assessing whether a proper foundation for a case existed must take into account the more flexible approach of the Tribunal. Furthermore, in the case of a withdrawal of a proceeding at an early stage, as in this case, the regulatory body's case may not be wholly apparent on the face of existing documents (for example, witness statements may not yet have been obtained). In other words, a complete evidentiary picture of the case which might ultimately have been advanced may not be available to the Tribunal on a costs application.
[39] SAT Act, s 32(2).
Fourthly, as this case demonstrates, there may be arguments as to whether it is open to a regulatory body to advance evidence of the reasons why it chose to withdraw a proceeding, or as to whether any weight could properly be given to evidence which might be regarded as self-serving. We do not express any final view on those questions. (As we explain below, in this case, the LPCC expressly withdrew its reliance on evidence which it had adduced to establish why it decided to withdraw.) Absent a complete evidentiary picture as to the reasons why the proceedings were withdrawn, the Tribunal should be aware of the risk of unfairness in too hasty a rush to judgment.
Finally, in any case where costs are sought against a regulatory body, it is important to bear in mind that the Tribunal does not have a supervisory function in relation to regulatory bodies. In Young v Legal Profession Complaints Committee Quinlan CJ and Beech JA observed that:[40]
while the conduct of a disciplinary body may in certain circumstances be relevant to the outcome of disciplinary proceedings, the Tribunal does not have statutory oversight of the Committee. Disciplinary proceedings before the Tribunal should not be regarded as convenient occasions for a general inquiry into the conduct of regulatory bodies, particularly where those proceedings are confined to consequential matters such as costs.
[40] Young v LPCC at [40].
Taking all of these considerations into account, it is our view that when the Tribunal is asked to determine whether there exists a proper basis for the exercise of its discretion to award costs against a regulatory body, the Tribunal should make a broad assessment of the basis for the proceeding as a whole, and of the regulatory body's conduct of the proceeding, bearing in mind that an award of costs against a regulatory body represents an exceptional step, which will not be taken other than in the clearest of cases where the tests for the award of costs have been met.
(f) The evidence before the Tribunal on the Costs Application
The practitioner tendered three affidavits in support of her application for costs: an affidavit sworn by the practitioner herself;[41] an affidavit of Murray Noel Thornhill;[42] and an affidavit sworn by Mr Davies SC.[43]
[41] Affidavit of Nicole Young (Exhibit 4).
[42] Affidavit of Murray Noel Thornhill sworn 19 February 2020 (Exhibit 1) (Affidavit of Murray Thornhill).
[43] Affidavit of Stephen Michael Davies affirmed 6 April 2020 (Exhibit 2) (Affidavit of Stephen Davies).
In addition, the practitioner filed a book of documents on which she relied in support of the Costs Application.[44] She also filed three sets of submissions in support of the costs application.[45]
[44] Respondent's Book of Documents filed 19 September 2019 (Respondent's Book of Documents).
[45] Respondent's First Submissions; Respondent's Submissions in Reply dated 6 April 2020 (Respondent's reply submissions); and the Respondent's Submissions in Reply on Issues Other than Liability for Costs Arising from the LPCC's Conduct dated 8 April 2020 (Respondent's second reply submissions).
The LPCC tendered one affidavit in response to the costs application: an affidavit of Stephen Merrick.[46] In addition, the LPCC filed a book of documents on which it relied in relation to the Costs Application.[47]
[46]Affidavit of Stephen Robert Merrick affirmed 11 February 2020 (Exhibit 3) (Affidavit of Stephen Merrick).
[47] Applicant's Book of Documents filed 28 August 2020 (LPCC's Book of Documents).
The LPCC filed one set of submissions in opposition to the Costs Application.[48]
[48] LPCC's Submissions Opposing the Respondent's Application for Costs dated 11 February 2020 (LPCC’s Submissions).
Broadly speaking, the evidence dealt with a number of issues:
(i)The factual background – the complaint to the LPCC which was made against the practitioner (LPCC Complaint), the Investigation, and the LPCC's decision to file the Application in the Tribunal;
(ii)The conduct of the LPCC in conducting the Investigation and in its decision to bring the Application in the Tribunal;
(iii)The impact of the Investigation and of the proceedings in the Tribunal on the practitioner;
(iv)The LPCC's possession of a report prepared by the Department of Child Protection (DCP) in relation to the alleged conduct of the Client which led to the Charges (DCP Report);
(v)The issue of LPP and how it would impact on the practitioner's defence of the LPCC Complaint;
(vi)Related proceedings against the practitioner in the Tribunal;
(vii)The absence of evidence as to the reasons for the LPCC's withdrawal of the Application.
It is convenient at this stage to provide an overview of the evidence in relation to those matters. Given our view that it is not appropriate to conduct a hypothetical trial, our purpose in referring to the evidence is largely to permit an understanding of the issues raised in support of the Costs Application, which are discussed below. However, there was no challenge to the reliability of any of the documentary evidence, and we accept that the documents relied upon were evidence of their contents, save where we specify otherwise.
In her affidavit, the practitioner set out the basis for the Costs Application, and a chronology of events in the course of the Investigation of the LPCC Complaint.[49]
[49] Affidavit of Nicole Young at [14(x)] (Exhibit 4).
The LPCC's Book of Documents contained documentary evidence on which the LPCC had relied in the Investigation, and in support of the Application. That evidence comprised a Prosecution Notice setting out the three Charges (Prosecution Notice), together with a SMF prepared by the police in respect of the Charges, and which outlined the prosecution case against the Client. The LPCC's Book of Documents also contained a copy of the audio recording of each of the radio interviews. A transcript of each interview was included in a Schedule to the Application.
The LPCC's Book of Documents included copies of correspondence passing between officers of the LPCC and Mr Davies SC, in which Mr Davies SC ventilated his concerns, and made submissions, in relation to the whether there was a proper basis for the LPCC Complaint, and to the manner in which the LPCC was conducting the Investigation (such as in relation to the timeframes it imposed on the practitioner to respond to a summons to provide information, the validity and scope of a summons issued by the LPCC, views expressed by officers of the LPCC as to whether the practitioner had provided an adequate response to the LPCC, and the LPCC's delay in responding to correspondence from Mr Davies SC) and the LPCC's responses thereto.
The practitioner's Book of Documents contained other documentation relating to the Investigation including correspondence in relation to the LPCC's decision to file the Application in the Tribunal, and a statement of its reasons in relation to that decision.[50] In addition, there were copies of documents in the nature of character references for the practitioner.
[50] Respondent's Book of Documents, page 156 (Exhibit 6).
It is not necessary to refer to all of the documents in the parties' Books of Documents. In the discussion below, we have elaborated only on aspects of the documentary evidence which are necessary to permit an understanding of the submissions made by the parties in the Costs Application.
The factual background – the LPCC Complaint, the Investigation, the LPCC's decision to file the Application and its prosecution of the Application in the Tribunal
On 13 January 2017, the LPCC wrote to the practitioner and advised that it had received the LPCC Complaint. The LPCC Complaint pertained to statements made by the practitioner concerning the matter involving the Client, including in the 6PR interview, and in a text message from the practitioner to the Client's ex-wife (text message).
Initially, the Investigation of the LPCC Complaint was carried out by the LPCC's Rapid Response Team (RRT).
Mr Davies SC provided a detailed response to the LPCC's letter of 13 January 2017 in a letter dated 9 February 2017.[51] In that letter, Mr Davies SC contended that the practitioner had acted in accordance with the Client's instructions. In that letter, and on a number of occasions thereafter, Mr Davies SC contended that in his view, the practitioner's participation in the radio interviews would not be found to have offended rule 43 of the Conduct Rules.[52]
[51] LPCC's Book of Documents, pages 29 – 83 (Exhibit 5).
[52] LPCC's Book of Documents, page 29 (Exhibit 5).
By letter dated 3 July 2017 to Mr Davies SC, the Acting Law Complaints Officer noted that the RRT's role had concluded and the file would be transferred to the LPCC's investigation team. She also advised that the investigation team would defer giving formal notification 'pending the determination of the [Client's] trial' which was listed for hearing in November 2017.[53]
[53] LPCC's Book of Documents, page 41 (Exhibit 5).
By letter dated 19 January 2018, a legal officer for the LPCC wrote to Mr Davies SC to advise that the LPCC Complaint had been referred to the investigation team for further investigation, and outlined the various aspects of the LPCC Complaint which were the subject of the Investigation (Notification Letter).[54]
[54] Respondent's Book of Documents, page 33 (Exhibit 6).
In the course of the Investigation of the LPCC Complaint, the LPCC issued summonses to produce information to the practitioner. In response to one such summons, the practitioner told the LPCC that she had initiated contact with the media.[55]
The text message
[55] LPCC's Book of Documents, page 75 (Exhibit 5).
As noted, the LPCC Complaint also concerned the text message, which was sent by the practitioner to the Client's ex-wife. The LPCC's Book of Documents contained copies of a communication between the Client's ex-wife and the practitioner, which preceded the text message. That communication was sent to the practitioner, through HHG, shortly after the practitioner's media interviews. In that communication, the Client's ex-wife complained that:[56]
when you put a story out into the media it is considered polite to put forward the full story and not just cherry pick at the parts of the story you would like the general public to know. … I would ask that in future you kindly refrain from stating outrageous comments of what possibly may happen.
[56] LPCC's Book of Documents, page 73 (Exhibit 5).
It was in response to that communication that the practitioner sent the text message to the Client's ex-wife. In the text message, the practitioner said:[57]
I am not required to be balanced or put both sides of a story forward. I know my Client's position and I will advocate that position for him. We will be vigorously defending the criminal charges and advising the Court of threats [the Client] says you made to 'ruin his life' if you were required to leave the family home immediately before charges were brought.
[57] LPCC's Book of Documents, page 71 (Exhibit 5).
In a submission to the LPCC on 9 February 2017, Mr Davies SC:
noted the terms of the text message about which you expressed disquiet. I can understand that disquiet. In the end, however, the appropriate inquiry is whether the Rule 43(3)(b) was offended, and the resolution of that question is not informed by the terms of that text message. It is informed by a consideration of the statements that were made in the circumstances in which they were made.[58]
Correspondence between the practitioner and the police in relation to the withdrawal of the Charges
[58] LPCC's Book of Documents, page 31 (Exhibit 5).
The LPCC's Book of Documents contained copies of emails passing between the practitioner and the police officers with the conduct of the police investigation and prosecution of the Charges. Two, in particular, warrant mention. On 22 November 2016, the practitioner sent an email to one of those police officers in which she noted the circumstances out of which the Charges arose (including the Toothbrushing Charges) and noted that 'we consider these charges to be extraordinary'.[59] The practitioner noted that she had made inquiries with the DCP and had been advised that the DCP was unaware of any concerns regarding her Client. The practitioner advised that she would:
appreciate a discussion of how these charges have come to be laid. We are instructed that the Complaint has been made by my Client's disgruntled ex-partner as part of her attempts to make good on threats she recently made to ruin my Client's life if she is forced to sell the family home.
At this stage I am instructed to write a request to police prosecuting to discontinue the charges as not being in the public interest and/or because the Complaint has been made for an improper purpose.
I would greatly value an informal talk with you prior to making such a submission as to whether the usual processes for laying such charges has been followed. I am aware that due to the fact that the allegations relate to domestic violence police policy may require that charges be laid regardless of whether they are in the public interest.[60]
[59] LPCC's Book of Documents, page 8 (Exhibit 5).
[60] LPCC's Book of Documents, page 8 (Exhibit 5).
On 31 May 2017, the practitioner again wrote to the police officer with the conduct of the prosecution in which she 'appeal[ed] to police once again to consider discontinuing these charges'[61] and that 'it remains our position that the police complaint was brought by [the Client's ex-wife] for the improper purpose of punishing [the Client] for his decision to leave her'.[62] The practitioner requested advice as to whether there was 'any possibility that the charges will be discontinued'.[63]
The withdrawal of the Charges
[61] LPCC's Book of Documents, page 6 (Exhibit 5).
[62] LPCC's Book of Documents, page 6 (Exhibit 5).
[63] LPCC's Book of Documents, page 7 (Exhibit 5).
The LPCC's Book of Documents contained copies of emails passing between the investigating and prosecuting police officers in which they agreed that two of the Charges against the Client should be dropped, and in which the prosecuting officer advised he would consider the position with respect to the other Charge, having regard to whether the accused would be able to rely upon s 257 of the Criminal Code, and in that respect, whether the act constituting the alleged assault involved force which was reasonable.[64]
[64] LPCC's Book of Documents, page 42 (Exhibit 5). Under s 257 of the Criminal Code, it is lawful for a parent to use, by way of correction of a child under his care, such force as is reasonable under the circumstances.
The Charges against the Client were listed for trial in the Magistrates Court in mid-November 2017.[65] On 3 November 2017, the police prosecutor advised the Court that the prosecution intended to discontinue two of the Charges against the practitioner's Client (namely, the Toothbrushing Charges).[66] According to the affidavit of the practitioner, the third Charge proceeded to trial and the Client was acquitted.[67]
The LPCC's reasons for its decision to file the Application in the Tribunal
[65] LPCC's Book of Documents, page 46 (Exhibit 5).
[66] LPCC's Book of Documents, page 46 (Exhibit 5).
[67] Affidavit of Nicole Young at [11] (Exhibit 4).
The practitioner's Book of Documents contained a copy of a letter dated 20 March 2019, from Mr Deptula, a legal officer for the LPCC, to Mr Davies SC, in which Mr Deptula set out the LPCC's reasons for its decision to pursue certain allegations against the practitioner in the Application, and not to pursue others (Decision).[68]
[68] LPCC's Book of Documents, page 154 – 162 (Exhibit 5).
In the Decision, Mr Deptula noted that at its meeting of 19 March 2019, the LPCC confirmed the terms of resolutions it had made in its meeting of 18 December 2018 in relation to the LPCC Complaint. Those resolutions were:
(i)to refer the allegations the subject of the Application to the Tribunal;
(ii)to dismiss other aspects of the LPCC Complaint, including in relation to the text message, because the LPCC was satisfied that there was no reasonable likelihood that the practitioner would be found guilty of either unsatisfactory professional conduct or professional misconduct; and
(iii)to take no further action in respect of that part of the Investigation which was commenced on its own initiative, namely as to whether the practitioner had failed to adequately and properly respond to an information summons issued by the LPCC on 22 March 2018 (Information Summons) and to otherwise give a full and accurate account of her conduct, and to be open and candid with the LPCC.
Mr Deptula then set out the reasons for the Decision to dismiss some aspects of the LPCC Complaint and to take no further action in respect of the other aspects of the Investigation. Those reasons also addressed an argument advanced by Mr Davies SC to the effect that the practitioner's response to the Investigation was hampered by her obligation to respect the confidentiality of communications she had had with the Client, which were said to be the subject of LPP.
LPCC's proposed amendment of the Application
For the sake of completeness, we should also mention that shortly before the LPCC withdrew the Application, it advised the practitioner that it intended to seek leave to amend the Application in terms of a Minute of Amended Annexure A. A copy of the proposed amendments were annexed to Mr Merrick's affidavit.[69] The issue was also referred to by counsel for the practitioner in his oral submissions.[70] The proposed amendments would have deleted, from the allegations in paragraph 6 of the Application, the allegation that the practitioner had received instructions from the Client to the effect that the Complaint was made by his disgruntled ex-wife as part of her attempts to make good on threats she had then recently made to ruin his life, if she were forced to sell the family home; and to write a request to the police to discontinue the charges as not being in the public interest and/or because the Complaint was made for an improper purpose.
[69] Annexure SRM3 to the Affidavit of Stephen Merrick (Exhibit 3).
[70] ts 11, 8 April 2022.
Furthermore, the proposed amendments would have deleted paragraphs [12.1], [12.2] and [12.3], and [16.1], [16.2] and [16.3] of the Application, and would have deleted paragraphs [13.1] and [17.1] of the Application (so as to delete the reference, in paragraphs [13] and [17], to the circumstances set out in paragraphs [12.1] to [12.6] and [16.1] to [16.5] respectively).
The practitioner refused to consent to those amendments and ultimately they were not pursued by the LPCC.
We refer to the proposed amendments only for the purpose of demonstrating that at the time of the withdrawal of the Application, the LPCC's case does not appear to have been finally settled. Quite apart from whether it pursued any amendments to the Application, it was, of course, open to the LPCC (subject to its counsel's forensic assessment) not to pursue particular parts of its Application, and to rely only on others in order to prove its allegation that the practitioner had engaged in unsatisfactory professional conduct.
The conduct of the LPCC in conducting the Investigation and in its decision to bring the Application in the Tribunal
In her affidavit, the practitioner noted that at the time the Application was withdrawn, it was 'seven months since the [LPCC] had determined to send the matter to the Tribunal, more than a year since the intensive and prolonged investigations had begun; and more than two and a half years after the alleged misconduct and initial [LPCC] Complaint'.[71]
[71] Affidavit of Nicole Young at [14(x)] (Exhibit 4).
The practitioner's Book of Documents contains correspondence which indicates that the LPCC first wrote to the practitioner in relation to the LPCC Complaint on 13 January 2017 and that it was not until 18 December 2018 that the LPCC resolved to file the Application in the Tribunal.[72] Furthermore, it was not until 30 January 2019 that the practitioner was advised that the LPCC had decided to file the Application in the Tribunal.[73]
[72] Respondent's Book of Documents, page 154 (Exhibit 6).
[73] Respondent's Book of Documents, page 147 (Exhibit 6).
In his affidavit, Mr Thornhill also deposed to his knowledge of the commencement of the Investigation into the practitioner's conduct, and to the subsequent escalation of the Investigation in a variety of ways 'including by the LPCC drawing me and my fellow Director of HHG in by lodging complaints against us, issuing numerous demands for information and submissions and then further submissions, and later summonses'.[74]
The impact of the Investigation and of the proceedings in the Tribunal on the practitioner
[74] Affidavit of Murray Thornhill para [9] (Exhibit 1).
In her affidavit, the practitioner set out her personal circumstances, and the personal and financial impact of the Investigation, and the pursuit of the Application in the Tribunal, on her. We accept that the practitioner in this case found the Investigation and the prosecution of the Application very stressful.
However, as we discuss below, the practitioner was also the subject of the Other Proceedings in the Tribunal, and those Proceedings took a very significant toll on her.
On the basis of the evidence before us, it is not possible to make any determination of whether the pursuit of the Application itself caused any discrete harm to the practitioner, over and above that caused by the Other Proceedings.
The LPCC's possession of the DCP Report
The LPCC's Book of Documents also included a copy of the DCP Report prepared by the DCP dated 13 January 2017. The DCP Report outlined an investigation conducted by the DCP into the alleged assaults said to have been committed by the Client, and reported on how they came to the attention of the police.[75]
[75] LPCC's Book of Documents, pages 16 – 19 (Exhibit 5).
The first reference to the DCP Report appears to have been in a letter dated 21 February 2017 to Mr Davies SC from the Manager of the RRT, in which she said that in preparing his response for the practitioner, Mr Davies SC 'may not have been provided with some relevant material, including the history of the parties' engagement with DCP, [and] [t]hat engagement with DCP does not, in my view, in many instances align with either [the practitioner's] or [the Client's] reporting of the family dynamics'.[76] The Manager of the RRT then observed that it was 'apparent from [the DCP Report] that following DCP's interview with the children, the father was charged'.[77]
[76] LPCC's Book of Documents, pages 34 – 35 (Exhibit 5).
[77] LPCC's Book of Documents, page 34 (Exhibit 5).
The practitioner's Book of Documents contained a copy of an email dated 13 February 2018 from Mr Davies SC to the LPCC in which he requested a copy of the DCP Report referred to in that correspondence.[78]
[78] Respondent's Book of Documents, page 42 (Exhibit 6).
By a letter dated 16 February 2018, a legal officer from the LPCC advised Mr Davies SC that the DCP Report 'was a document that was prepared for the Family Court and I am not satisfied that it is relevant, or appropriate to produce, for the purposes of [the practitioner's] submissions in response to the issues and other matters raised in Notification Letter'.[79]
[79] Respondent's Book of Documents, page 45 (Exhibit 6).
Mr Davies SC renewed his request for a copy of the DCP Report in an email he sent to the LPCC in the evening of 12 August 2019, the night before the first mediation of the Application in the Tribunal.
In his affidavit, Mr Merrick (who was the LPCC solicitor acting for the LPCC on the Application) deposed that he first became aware of the existence of the DCP Report on 13 August 2019, on reading that email from Mr Davies SC to the LPCC. Mr Merrick deposed that he provided a copy of the DCP Report to counsel for the LPCC on 13 August 2019, just prior to the first mediation of the Application.[80]
[80] Affidavit of Stephen Merrick at [7] (Exhibit 3).
In his affidavit, Mr Merrick deposed that the legal officer in the LPCC with the conduct of the Application in the Tribunal, Ms Paterson, had informed him that during the time she had had the conduct of the matter, she was not aware of the existence of the DCP Report, and counsel for the LPCC was not briefed with a copy of the DCP Report.[81]
[81] Affidavit of Stephen Merrick at [6] (Exhibit 3).
Counsel for the LPCC submitted that the legal officers who were instructing counsel, and counsel himself, were not aware of, and had not read, the DCP Report prior to 13 August 2019, notwithstanding that the LPCC apparently had the document by no later than 21 February 2017.[82]
[82] LPCC's Submissions [12].
Counsel for the LPCC noted that the DCP Report was dated significantly after the radio interviews and was not available to the practitioner at the time of the interviews.[83]
[83] LPCC's Submissions [14].
However, counsel for the LPCC conceded that the DCP Report showed that paragraphs [12.1] and [16.1] of the Application could not be maintained, and explained that that was the reason for the proposed amendment of the Application.[84]
The LPP issue and how it would impact on the practitioner's defence of the LPCC Complaint
[84] LPCC's Submissions [13].
As we have already mentioned, in his letter to the LPCC of 9 February 2017,[85] Mr Davies SC responded to the allegations made in the LPCC complaint. In doing so, he addressed the LPCC's concern that the practitioner may have breached rule 43(3)(b) of the Conduct Rules, and made detailed submissions as to the circumstances 'on the instructions that [the practitioner] had'.[86]
[85] LPCC's Book of Documents, page 29 (Exhibit 5).
[86] LPCC's Book of Documents, page 29 (Exhibit 5).
Other correspondence contained in the LPCC's Book of Documents include letters from Mr Davies SC to the LPCC in which he raised his concern that because the LPCC Complaint had not been made by the Client, the practitioner could not properly defend herself 'in light of [her Client's] [LPP]'.[87]
[87] LPCC's Book of Documents, page 70 (Exhibit 5).
The practitioner's Book of Documents also contained submissions sent to the LPCC by Mr Davies SC in relation to the operation of LPP and whether it had been waived in this case.
In light of the contents of Mr Davies' SC letter to the LPCC of 9 February 2017 the LPCC contended that there had been a waiver of the Client's LPP in the communications in which the Client's instructions were given.
As we have noted, in the Decision, Mr Deptula addressed submissions made by Mr Davies SC on the practitioner's behalf, to the effect that she could not respond to the Information Summons because she was obliged to respect the Client's LPP in their communications. In summary, the LPCC's position was that it considered there was an argument that disclosures by Mr Davies SC and by the practitioner had waived LPP to a limited extent, but that it had determined not to pursue the practitioner's failure to respond to the Information Summons.
The Other Proceedings
As we have noted, the Other Proceedings, involving the same practitioner, were the subject of final orders of the Tribunal (in VR 230 of 2018), which orders were in turn the subject of an appeal to the Court of Appeal. That proceeding was commenced in the Tribunal slightly earlier than the Application was filed, and was completed shortly before the LPCC withdrew the Application.
In his affidavit, Mr Merrick deposed that the Other Proceedings arose out of matters separate to those the subject of the present proceeding. He explained that in the Other Proceedings, the Tribunal made orders on 12 September 2019, by consent, finding that the practitioner had engaged in professional misconduct. The Tribunal reserved its decision on penalty after hearings which concluded on 11 December 2019.[88]
[88] Affidavit of Stephen Merrick at [4] (Exhibit 3).
In the course of the Other Proceedings in the Tribunal, the Tribunal accepted that there had been an unexplained delay by the LPCC in investigating the complaint the subject of the Other Proceedings, and in determining to commence proceedings in the Tribunal against the practitioner, and found that the delay, together with other factors, had had a significant impact on the practitioner's mental health.[89]
[89] Legal Profession Complaints Committee and Young [2020] WASAT 29 at [38] and [51].
As we have observed, the Other Proceedings were the subject of an appeal to the Court of Appeal. A number of the grounds of appeal contended that there had been significant delay by the LPCC in investigating, commencing and litigating the complaint against the practitioner which was the subject of those Proceedings, and that that should be taken into account in the determination of the issue of costs. We have already referred to the observations made by the members of the Court of Appeal which are relevant to the present Costs Application.
No evidence as to the reasons for the LPCC's withdrawal of the Application
The LPCC's reasons for withdrawing the Application were set out in a letter from Mr Merrick on behalf of the LPCC, to the practitioner, dated 17 September 2019. A copy of that letter was annexed to Mr Merrick's affidavit, and was tendered in evidence as part of that affidavit. However, counsel for the practitioner subsequently objected to the Tribunal's receipt of the letter, on the basis that it was a self-serving document.[90] In light of that objection, the LPCC decided not to rely upon that letter and it was not received into evidence as part of Mr Merrick's affidavit.[91]
[90] ts 61, 8 April 2020.
[91] ts 45, 20 July 2020.
The position, therefore, is that there is no evidence before the Tribunal as to the reasons for the LPCC's withdrawal of the Application.
(g) Whether the practitioner has incurred any legal costs in respect of the Application
It is trite to observe that the costs the Tribunal is able to award under s 87(2) of the SAT Act are legal costs; that is, the cost of a party obtaining legal advice and representation in connection with the proceedings in the Tribunal. If a party has not incurred any legal costs in connection with proceedings in the Tribunal, there can be no award of costs to that party.
Initially, there was a dispute between the parties as to whether the practitioner had any liability for legal costs. The only legal costs the subject of the Costs Application were those said to have been charged by Mr Davies SC. (No costs were sought in respect of fees charged by solicitors acting for the practitioner.)
The dispute as to the practitioner's liability for costs arose from the fact that on a number of occasions in the course of the Investigation, Mr Davies SC had indicated that he acted for the practitioner on what he described as a 'pro bono' basis. In the course of the Costs Application, however, Mr Davies SC maintained that both HHG and the practitioner were liable to pay any fees he decided to charge for work undertaken in connection with the retainer.[92] Mr Davies SC deposed that in the course of doing legal work in connection with the retainer, he extended the practitioner the courtesy of not charging her for the legal fees for which she was liable, in that he was not rendering fee notes 'as I was entitled to do'.[93]
[92] Affidavit of Murray Thornhill at [5] and Annexure MNT001 (Exhibit 1).
[93] Affidavit of Stephen Davies at [11] (Exhibit 2).
Indeed, it was only once the Costs Application was made that Mr Davies SC actually rendered any invoices for the legal work he had undertaken in connection with the retainer, namely the 2019 invoice and the 2020 invoice.
In her affidavit in support of the Costs Application, the practitioner addressed the arrangement for Mr Davies' SC costs. The practitioner deposed that while she retained Mr Davies SC, her understanding with the directors of HHG was that HHG would cover her in respect of the fees rendered by Mr Davies SC.[94] The practitioner also deposed that around the time of her first consultation with Mr Davies SC, she found out that he 'did not intend to render fees for the time being, the retainer being to act for another practitioner in relation to a disciplinary matter, but that he would revisit rendering fee notes depending on how things went with the LPCC, and that he would certainly be rendering fee notes if the matter was referred by the LPCC to SAT.'[95]
[94] Affidavit of Nicole Young at [16] (Exhibit 4).
[95] Affidavit of Nicole Young at [17] (Exhibit 4).
Mr Thornhill also deposed to the arrangements made in relation to Mr Davies' SC fees, and his affidavit annexed a copy of the cost agreement for the retainer. Mr Thornhill deposed that he retained Mr Davies SC to advise the practitioner:
on the basis that Mr Davies' client would be [the practitioner] and the work would be charged for by Mr Davies in the ordinary way save that, as well as [the practitioner], HHG Legal Group would also be liable in respect of the fees in the matter. While Mr Davies accepted the retainer, he also indicated that he did not propose to render a fee note for seeing [the practitioner] in conference to discuss the matter to provide some advice about an appropriate response to the LPCC. The understanding at the time, which always remained, was that this indication of his intention was an act of courtesy from one legal practitioner to another that in no way derogated from Mr Davies SC's legal entitlement to be paid for his work.[96]
[96] Affidavit of Murray Thornhill at [5] – [6] (Exhibit 1).
Mr Thornhill deposed that during the course of this matter, he raised with Mr Davies SC on several occasions his right to render fees in the matter and invited him to do so.[97] Mr Thornhill confirmed that '[a]t no stage has there been any arrangement or understanding that Mr Davies SC was acting in this matter on a pro bono basis'.[98]
[97] Affidavit of Murray Thornhill at [10] (Exhibit 1).
[98] Affidavit of Murray Thornhill at [13] (Exhibit 1).
In his affidavit, Mr Davies SC addressed an argument then raised by the LPCC as to whether the practitioner was actually liable for the costs claimed under a costs agreement or otherwise, having regard to an email sent by Mr Davies SC to the LPCC in which he indicated that he was acting for the practitioner on a pro bono basis. Mr Davies' SC evidence was that he used the term 'pro bono' as a short hand reference to 'pro bono publico' which he understood to refer to an agreement by a legal practitioner to represent a Client on the basis that the practitioner did so in order to advance a public good, and that the agreement comprised 'some form of financial accommodation the nature of which was widely variable but might include agreeing to: act free, act free except for disbursements, waive payment of fees, waive payment of fees in some circumstances …, not render a charge for fees in some circumstances … all being examples only… .'[99] Mr Davies SC deposed that although the practitioner was liable for his fees he was extending to her the courtesy of not charging them, that is, not rendering fee notes as he was entitled to do.[100]
[99] Affidavit of Stephen Davies at [6] (Exhibit 2).
[100] Affidavit of Stephen Davies at [11] (Exhibit 2).
Mr Davies SC deposed that it was 'a common but not universal practice of mine to not charge legal practitioner clients, that is, to not render fee notes despite an entitlement to do so, for work done in relation [to] professional disciplinary matters, or to not do so in the preliminary stages of such matters. Under this practice a client in respect of whom I have extended the practice …[is] and remain[s] under a legal obligation to pay [and] whether to require the client to do so is and at all times remains a matter within my discretion'.[101]
[101] Affidavit of Stephen Davies at [16] (Exhibit 2).
In the end, the LPCC did not dispute that the practitioner was liable for the fees set out in the 2019 invoice and the 2020 invoice.
Having regard to the evidence of Mr Davies SC, which, in light of the LPCC's concession was ultimately unchallenged, and which was consistent with the evidence of Mr Thornhill, and of the practitioner, we are satisfied, and we find, that the effect of the arrangement under the retainer was that HHG and the practitioner would be liable to pay any invoices Mr Davies SC chose to render. However, having regard to the evidence as to Mr Davies' SC approach to the question of costs in the course of the Application generally, we are satisfied, and we find, that Mr Davies SC had no intention of enforcing any claim for fees under the retainer unless and until the Tribunal made an order for costs in the practitioner's favour against the LPCC, and that Mr Davies SC would only enforce any claim for fees in the amount the LPCC was ordered to pay.
(h) Why the 'no reasonable basis' plank of the Costs Application fails
The practitioner's case is that there was no reasonable basis for the Application to be brought. The basis for that argument was that the LPCC did not have available to it the evidence necessary to establish a breach of the Conduct Rules, as the allegations were framed in paragraphs [21]-[23] of the Application.[102]
[102] Respondent's First Submissions [1(a)].
We turn, then, to deal with the balance of the arguments advanced by counsel for the practitioner in support of this second plank, which pertain to the conduct of the LPCC in the course of its pursuit of the Application.
Delay
We do not consider that delay by the LPCC constituted a basis for concluding that its conduct was oppressive. Counsel for the practitioner submitted that there had been significant delay in the course of the Investigation, and thus in the commencement of the Application. He pointed to the fact that the conduct the subject of the Application occurred in December 2016, yet the Application was not commenced until June 2019. He submitted that substantially all of the delay was delay by, or caused by, the LPCC. He submitted that the significance of the delay was amplified by the fact that the LPCC was under a positive statutory duty under s 431 to deal with complaints as efficiently and expeditiously as was practicable.
As we have already mentioned, delay on the part of a regulatory body in investigating or prosecuting a disciplinary matter may be relevant to the extent that it may be indicative of a lack of good faith in bringing the disciplinary proceeding itself, or if it provides a basis for casting doubt on whether the regulatory body had reasonable grounds for bringing an application. It suffices to say that the documentary evidence in relation to the course of the Investigation was far from sufficient to support a finding of a lack of good faith on the part of the LPCC, especially in light of our rejection of the practitioner's contention that there was no reasonable basis for the Application.
We have also noted, above, that delay may be relevant if it unnecessarily increased the costs incurred by the regulatory body, or by the practitioner, in the proceeding itself. Nothing in the evidence suggested that that was an issue in this case.
We do not consider that delay by the LPCC, either of itself, or in conjunction with any of the other matters relied upon by the practitioner, constitutes a basis for a finding that the conduct of the LPCC was oppressive or an abuse of process, so as to warrant an order for costs against it.
The LPP issue
Secondly, we are not persuaded that the practitioner could not have properly and fairly defended the allegations because of her obligation to maintain the Client's LPP in confidential communications.
Counsel for the practitioner submitted that the practitioner could not fully defend the Application because in order to do so it would be necessary for matters that were the subject of the Client's LPP to be canvassed by the practitioner in her pleading and in evidence to be led in her defence, and that for that reason alone, the prosecution of the Application would work an abuse of process.[187] He noted that because this was not a case in which the Client had made a complaint to the LPCC, s 469 of the LP Act (which meant that the Client could not rely on LPP) would not apply.
[187] Respondent's First Submissions [25]; ts 50, 8 April 2020.
Counsel for the practitioner also submitted, initially, that in the Decision, the LPCC accepted the submissions he had made in relation to LPP.[188] He later resiled from that contention to an extent.[189] It is convenient to immediately dispose of this argument. In the Decision, the LPCC did not accept the practitioner's submissions in relation to LPP. The LPCC instead concluded that there may be an argument as to whether the Client's LPP in some communications with the practitioner had been waived, but that it did not consider it warranted to expend the resources to make further enquiries as to whether that waiver had occurred.[190]
[188] ts 55, 8 April 2020.
[189] ts 57, 8 April 2020.
[190] LPCC's Book of Documents, page 154 (Exhibit 5).
We understood the import of the practitioner's reliance on LPP as a basis for an abuse of process argument to be: in order to defend the Application, the practitioner would need to refer to communications which were the subject of LPP; she could not do so because she was bound to maintain the confidentiality of those communications; as a result she would be unable to fairly defend the proceedings; and for the proceedings to be conducted in those circumstances constituted an abuse of process.
We do not accept those arguments. It was not clear why, in her defence, the practitioner would be required to rely upon privileged communications, or even how they would be relevant to the allegations of unsatisfactory professional conduct set out in the Grounds.
Dealing first with the alleged breach of rule 43(3)(b), there is no doubt that what a practitioner says in an interview about a matter must be informed by the Client's instructions (as rule 43(3) makes clear). But as we have explained, the LPCC's allegation was not concerned with a deficiency in what the practitioner said about the Client's perspective on the prosecution for the Charges. On the contrary, it was that the practitioner focused on the Client's position, and did not adequately or fairly convey what the prosecution case was, by reference to the facts referred to in the SMF.
We are unable to see why it would have been necessary for the practitioner, in defending that part of the Application, to refer to communications which were the subject of LPP. By way of example, if the Client had instructed her not to refer to the prosecution case or to the facts on which the prosecution case was based, that should have caused the practitioner to decline to agree to participate in the radio interviews, having regard to her obligations under rule 43(3)(b). It is not a defence to an alleged breach of rule 43(3)(b) that the practitioner was unable to give a fair and objective account of the matter because that would be contrary to a client's instructions as to what the practitioner should say.
The submissions made by Mr Davies SC did not assist in clarifying the point, because the focus of his argument was that the LPCC would need to prove that the representations made by the practitioner, and particularised in paragraphs [12.1]-[12.5] and [16.1]-[16.4] were true. As we have explained at [212], in our respectful view, his submissions in that respect proceeded from a misunderstanding of the LPCC's case.
We understood the LPCC's intended evidentiary foundation for the Application, in relation to rule 43(3)(b), to rest on two things: what the practitioner said (as revealed by the recordings and transcript of the radio interviews); and the information available to the practitioner about the prosecution case, at the time of the radio interviews, namely the prosecution notice and the SMF. At the time the LPCC withdrew the Application, the practitioner had not then filed a response to the Application, and consequently there was no indication of what her defence to this part of the Application would have been. Having regard to the submissions advanced on the Costs Application, it seems to us that the practitioner's defence of the rule 43(3)(b) case would likely have rested on her evidence or submissions about what she actually said in the radio interviews; or what she in fact knew (or what information was then available and which she must, by inference, have known) at the time, in relation to the prosecution case; or what the 'matter' was; or whether the LPCC had established that what she said was not a fair and objective account of the matter; or whether any breach of rule 43(3)(b) constituted unsatisfactory professional conduct in the circumstances. We are unable to envisage how any privileged communications might have assisted the practitioner to mount a defence in respect of any of those issues.
Similarly, in relation to the alleged breach of rule 16, it is not clear why it would be necessary, in order to mount her defence to this allegation, for the practitioner to refer to privileged communications. Having regard to what we have said so far, it appears that the evidentiary foundation for the LPCC's case was the recording and transcript of the radio interviews, together with the documentary evidence underlying the various communications and events referred to in paragraphs [4], [6], [7], [8], [9], [18], [19] and [20] of the Grounds. Insofar as evidence of the practitioner's intention was concerned (in relation to the attempt to further the Client's matter) counsel for the LPCC made clear that that intention was to have been proved by inference from the other factual matters to which we have referred.[191] The LPCC may well also have sought to rely upon what the practitioner told the Manager of the LPCC's RRT in the course of the investigation (see [71] and [244] above) to the effect that she had informed the media about the Charges in the hope that it would cause the police to withdraw the Charges.
[191] ts 12, 20 July 2020.
In the course of submissions, counsel for the LPCC noted that the communications with the Client on which the LPCC relied in paragraph [6] of the Grounds were disclosed by or on behalf of the practitioner in the course of the Investigation. We note that in the Decision (see [82][83] above) Mr Deptula referred to the practitioner's disclosure of her instructions in the course of a conversation she had with the Manager of the LPCC's RRT, and to the disclosure of those instructions by Mr Davies SC in correspondence to the LPCC dated 9 February 2017. Those disclosures were the basis on which the LPCC contended that LPP in those communications had, to that extent at least, been waived.
If there was a dispute as to whether the Client's LPP in any communications had been waived, that was clearly a matter for argument in the course of the proceedings in the Tribunal. We do not consider that it was oppressive or an abuse of process for the LPCC to commence the Application, even if it was aware of the possibility that such an argument might be raised. A range of arguments may have been open in relation to any claim of LPP, or as to the relevance of LPP in relation to the practitioner's defence, including: whether such communications were really relevant to any issues in dispute (and thus whether such evidence should be given any weight in the Tribunal's consideration, even if LPP did not apply); whether the Client in fact declined to waive LPP in such communications; whether the LPP in such communications could be maintained in light of alleged disclosures and whether disclosures of the communications in fact constituted a waiver of LPP in any event; and the relevance, if any, of the Tribunal's powers under s 468 of the LP Act.
Nothing in the submissions made by Mr Davies SC shed any light on which privileged communications the practitioner would necessarily have had to rely in order to mount her defence. Counsel for the LPCC submitted that it was incumbent on the practitioner to explain that there were instructions of particular relevance to her defence of the rule 16 allegation – for example to explain her state of mind, based on what she had been told, as to what she was supposed to achieve in the radio interviews.[192] Counsel for the LPCC submitted that the practitioner had not done that in the course of the Costs Application, or at any stage in her correspondence with the LPCC and that 'without that, there's simply no substantiation of the practitioner's contention that the Application compelled the disclosure of [LPP].'[193] We accept that submission.
[192] ts 13, 20 July 2020.
[193] ts 13, 20 July 2020.
Given that we are unable to envisage how it would have been necessary for the practitioner to refer to privileged material in her defence to either the rule 43(3)(b) or rule 16 allegations, we are unable to conclude that it must have been apparent to the LPCC that that would be necessary (other than to the extent that there may be an argument about the waiver of LPP in communications which the practitioner or Mr Davies SC had disclosed to the LPCC). In those circumstances, we do not see any basis for concluding that it was oppressive or an abuse of process for the LPCC to commence or proceed with the Application.
The LPCC's failure to disclose the DCP Report
Thirdly, a specific complaint made by Mr Davies SC in relation to the LPCC's conduct concerned its failure to disclose the DCP Report, on the basis that it was not relevant to the Complaint, despite having told Mr Davies SC that the practitioner's submissions in relation to the Complaint did not reflect the DCP Report.[194]
[194] ts 27, 8 April 2020.
Counsel for the LPCC submitted that the DCP Report was not a document that was available to the Client or the practitioner at the date of the radio interviews.[195] That is correct. The DCP Report was dated 13 January 2017. The 6PR interview was held on 5 December 2016. The 2GB interview was held on 6 December 2016. As we have explained above, the DCP Report did not exist at the time of those interviews, and was not relevant to the question whether the practitioner's account of the matter was a fair and objective one. The DCP Report could not, therefore, have been relevant to the alleged breach of rule 43(3)(b) and we do not see how it could have been of any relevance to the alleged breach of rule 16.
[195] ts 75, 8 April 2020.
In any event, the DCP Report was disclosed to the practitioner, once the counsel and solicitor for the LPCC themselves became aware of it. No prejudice was said to have arisen specifically from the lateness of that disclosure.
The LPCC's approach to the Investigation generally
Fourthly, counsel for the practitioner relied on a number of other matters in relation to the conduct of the Investigation, including the fact that the LPCC had investigated the partners of the firm for which the practitioner worked, that the LPCC had issued summonses for the production of documents relevant to their representation of the Client in relation to his defence of the Charges and in the Family Court proceedings, and that a vast amount of work had been undertaken. Counsel for the practitioner complained that despite all of those inquiries, in the end the LPCC proposed to proceed to a hearing on the basis of the Charges and the SMF.[196] Counsel for the practitioner submitted that the LPCC had misdirected itself in respect of its powers and in relation to proper procedure and persisted in its conduct despite these errors having been pointed out by the practitioner; that it had lost sight of basic standards of fairness that it ought properly bring to the discharge of its functions; and that it had lost sight of a proper sense of proportion in relation to the matter generally.
[196] ts 29, 8 April 2020.
For the reasons set out above, it is neither necessary nor appropriate for us to address these arguments. Our role is not to supervise the LPCC's conduct of its investigations.
Counsel for the practitioner also submitted that an officer of the LPCC (in her capacity as Manager of the RRT and subsequently in her capacity as the Law Complaints Officer) had 'seriously misconducted herself' in a variety of ways, including by her intemperate personal conduct, by conduct calculated to bully and intimidate the practitioner, by misusing the resources of the LPCC in furtherance of this strategy, and by causing the LPCC 'to misconduct itself in the proper conduct of an unrelated dispute also in furtherance of that strategic outcome'. (We note that this appears to be a reference to the Other Proceedings.)
Again, for the reasons set out above, it is neither necessary nor appropriate for us to address these arguments. However, it is appropriate to make one additional observation. The allegations made by Mr Davies SC in relation to the conduct of the LPCC officer were very serious. On the face of the documents before us, there was no evidence which we considered capable of supporting these allegations.
Finally, counsel for the practitioner submitted that the LPCC's conduct imposed enormous stress on the practitioner.[197] He pointed to the evidence of the impact of the protracted nature of the Investigation and of the pursuit of the Application on the practitioner.[198] He noted that the LPCC pursued this matter in conjunction with the Other Proceeding, which was pursued by the LPCC for four years.[199]
[197] Respondent's First Submissions [35].
[198] ts 43, 8 April 2020.
[199] ts 45, 8 April 2020.
We do not doubt that the Investigation and the commencement of the Application was a cause of stress for the practitioner. Every disciplinary proceeding is stressful for the legal practitioner involved. Of itself, that cannot render the pursuit of disciplinary proceedings oppressive to a practitioner. Furthermore, it is impossible to identify how the conduct of the Investigation and the pursuit of the Application caused any discrete impact on the practitioner, over and above the impact on her caused by the pursuit of the Other Proceedings.[200] Counsel for the practitioner submitted that it would be possible to conclude 'from an examination of what happened in this matter from the conduct of the LPCC … that the level of pressure, the level of relentlessness, the level of … animus that was displayed consistently, in and of itself … was so serious that you wouldn't even have to worry about the [Other Proceeding]'.[201] We are unable to agree.
[200] ts 68, 8 April 2020.
[201] ts 68, 8 April 2020.
There was one other matter concerning the LPCC's conduct, on which counsel for the practitioner relied, which pertained to its conduct in the course of the Application. Counsel for the practitioner submitted that the fact that the LPCC disputed the practitioner's liability for Mr Davies' SC fees constituted the 'deliberate taking of a false issue to cause difficulty and embarrassment'.[202] We are unable to accept that argument. Initially there was a dispute between the parties as to whether the practitioner had in fact incurred any legal costs, on the basis that Mr Davies SC was said to have been acting on a pro bono basis. That there was a dispute was perhaps the result of Mr Davies SC contending at different times that he was acting for the practitioner on a pro bono basis,[203] but contending on other occasions that he was not acting on a pro bono basis,[204] and in the course of these proceedings, clarifying that he was in fact acting pro bono, but on the basis we have described in [118] above. We consider that it was entirely proper for the LPCC to seek clarification of the issue. Had the LPCC not done so, it would have been necessary for the Tribunal to clarify that matter. Furthermore, once the position was clarified, the LPCC made a proper concession. Nothing in this aspect of its conduct warrants any award of costs in the practitioner's favour.
(j) Why the 'absence of good faith' plank of the Costs Application fails
[202] ts 62, 8 April 2020.
[203] See, for example, LPCC's Book of Documents at page 84.
[204] See, for example, Respondent's Book of Documents at page 204.
Counsel for the practitioner submitted that the Application was made other than in good faith because:
(a)There was no reasonable basis for the Application to be made and pursued, because the LPCC did not have the evidence necessary to establish a breach of rule 43(3)(b) or rule 16, as the Application was framed in the Grounds;
(b)There was no reasonable basis for the Application to be made and pursued because the obligation to preserve LPP meant that it was not possible for the practitioner to defend the matter fairly and properly, and for the LPCC to pursue the proceeding in those circumstances would work an abuse of process;
(c)The LPCC knew or ought to have known that it did not have the evidence necessary to establish a breach of either rule, as the Application was framed;
(d)The LPCC knew or ought to have known, or at least from 16 March 2018[205] should have known, that the commencement and prosecution of the application would work an abuse of process.
[205] 16 March 2018 was the date on which Mr Davies SC first wrote to the LPCC pointing out the deficiencies in its case.
Given our conclusions in relation to the 'no reasonable basis' plank, and the 'oppression/abuse of process' plank, there is no basis for the contention that the LPCC knew or ought to have known that it could not support its case with evidence, and/or that to commence and pursue the Application would constitute an abuse of process.
Consequently, in our view there is no basis for the submission that the LPCC made the Application other than in good faith.
The third plank of the Costs Application fails.
(k) Concluding observations in relation to the quantum of costs sought
Because of the conclusions we have reached it is not necessary for us to make any assessment of the costs which we would have awarded had we been persuaded that this was an appropriate case for the exercise of our discretion to do so.
However, it is appropriate to make some final observations about the quantum of costs sought. In the September 2019 invoice and the February 2020 invoice, Mr Davies SC itemised legal work undertaken between 19 June 2019 and 20 February 2020, comprising a total of:
•51 hours and 40 minutes (of which 2 hours was not charged for) of legal work done in respect of the Application, including attendance at hearings and mediations; and
•54 hours and 30 minutes of legal work done in preparing the Costs Application.
These figures do not include the time spent in attending the hearings of the Costs Application on 8 April 2020 and 20 July 2020, or in the shorter hearing and adjournment application on 20 February 2020 and 2 June 2020 respectively, all of which comprised a total of approximately 10 hours of hearing time. Nor do these figures include the time for preparation for those hearings.
Counsel for the LPCC submitted that the scope of the proceeding was relatively concise and was not factually complex. They submitted that the Application itself was concise, there was no response filed, the matter was only on foot for three months, and in that period, the practitioner attended mediation twice and prepared a position paper on mediation.[206] We accept those submissions. From that perspective, we would have anticipated a far more modest amount of time spent on legal work associated with the Application. However, it is unnecessary to say more about that in the circumstances.
[206] ts 21, 20 July 2020.
It is necessary, however, to say something about the amount of work done on the Costs Application itself. Counsel for the practitioner submitted that the amount of work which it was necessary to do on the Costs Application arose from, amongst other things, the cost principles that apply in the Tribunal in respect of regulators, and consequentially, the fact that it was necessary to 'substantially run the matter'.[207]
[207] Respondent's second reply submissions [32(b)] and [32(c)].
Even accepting for the sake of the argument that the Costs Application was unusual and required greater development than an orthodox costs application, the devotion of such a significant amount of time to the Costs Application, was grossly disproportionate to the time taken on the Application itself. Such an approach to costs was, with respect, entirely out of step with the approach to costs which is taken in the Tribunal, and which the Tribunal expects will be taken by practitioners acting for parties in the Tribunal. That such an approach was taken by an experienced senior counsel is even more disappointing. We hope that such an approach is not repeated.
The Costs Application should be dismissed.
(l) The orders which should be made
Subject to hearing from the parties, the orders which should be made are:
1.The name of the Applicant is amended to the Legal Services and Complaints Committee.
2.The Respondent's application for an order that the Applicant pay her costs of the proceeding is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
PM
Associate to the Honourable Justice Pritchard
10 NOVEMBER 2023
3
16
7