Legal Services Commissioner v Puryer
[2010] QCAT 411
•25 August 2010
| CITATION: | Legal Services Commissioner v Puryer [2010] QCAT 411 |
| PARTIES: | Legal Services Commissioner |
| v | |
| Terence Robert Puryer |
| APPLICATION NUMBER: | LPD011-09 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 25 August 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The Respondent’s application to strike out all or part of the affidavit of Robert Henry Patrick Brittan filed 19 February 2010 is dismissed |
| CATCHWORDS : | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – INTERLOCUTORY APPLICATION – STRIKE OUT AFFIDAVIT – IRRELEVANT– HEARSAY – where the Commissioner filed a disciplinary application relating to three charges contending that the respondent mislead the Supreme Court of Queensland and failed to meet his obligation of frankness and candour to the Supreme Court – where the complaints manager in the Commissioner’s office filed an affidavit in support of the disciplinary application – whether the affidavit contains material that is irrelevant, oppressive, embarrassing and/or vexatious – whether the affidavit contains material that is hearsay – whether parts or all of the affidavit should be struck out Evidence Act 1977, ss 51, 53, 92(2) and (3) ss 3,4, 28(3)(b) and (c) Buzzacott v Morgan (No 2) [1999] SASC 562, applied Pethers v Minister for Agriculture [2010] NSWSC 805, cited Polglaze v The Veterinary Practitioners Board of NSW [2010] NSWCA 4, cited Puryer v Webb & Ors [2008] QCA 246, cited Solomon v Psychologists Board of Western Australia [2000] WASCA 266, cited |
REASONS FOR DECISION
Mr Puryer is an Australian lawyer[1] who was admitted to practice in Queensland in 1981. The Commissioner filed a discipline application under the Legal Profession Act 2007 (‘LPA’) against him in the Supreme Court on 8 October 2009. The matter now proceeds in QCAT.
[1]A person admitted to the legal profession under the Legal Profession Act 2007 or other Act: LPA, s 5(1)
The application alleges that Mr Puryer is guilty of unsatisfactory professional conduct and/or professional misconduct as a result of things that occurred during a hearing before Daubney J in the Supreme Court in December 2007.
The charges stemming from the December hearing are as follows:
i) That on 13 December 2007 the respondent mislead the Supreme Court of Queensland; this charge relates to an allegation that the respondent stated to the court that he gave notice to the other party of a further amended application when he knew this was not the case;
ii) that on 13 December 2007 the respondent mislead the Supreme Court of Queensland; this charge relates to the respondent relying on the contents of his sworn affidavit of 12 December 2007 and allegedly failing to direct the court’s attention to a letter from the other party annexed to the affidavit and critical to an issue in dispute; and
iii) that on 13 December 2007, the respondent failed to meet his obligation of frankness and candour to the Supreme Court; this charge is said to flow from the second charge.
The Commissioner asserts that the alleged conduct constitutes either unsatisfactory professional conduct, or professional misconduct, under s 420 of the LPA. That provision contemplates conduct by an Australian legal practitioner[2] of the kind referred to in ss 418 or 419. Mr Puryer was not the holder of a current practicing certificate at the time of the alleged misconduct, but s 417 of the LPA confers jurisdiction on the Commissioner to prosecute a discipline action against an Australian lawyer in the same manner as against an Australian legal practitioner.
[2]An Australian lawyer who holds a current local practicing certificate: LPA, s 6(1)
The genesis of the present disciplinary proceeding is a decision of the Small Claims Tribunal on 28 July 2006 which removed Mr Puryer’s former defacto wife, Ms Coombs, from a residential tenancy agreement. Later, there were hearings before Daubney J and Dutney J in the Supreme Court. A detailed history of those proceedings is set out in the Court of Appeal decision in Puryer v Webb & Ors [2008] QCA 246. The Court[3] said, at [31]:
… While it is not necessary for us, in order to dispose of this appeal, to come to a view as to whether Mr Puryer deliberately misled Daubney J, we must record our concern that, to say the least, Mr Puryer did not seem to understand that a lawyer’s obligations of candour to the court, whose officer he is, are not discharged by leaving it to the court to plough through a bundle of papers in order to discover relevant material adverse to his case. There are, we think, grounds for the investigation by the Legal Services Commissioner of Mr Puryer’s conduct before Daubney J.
[3]McMurdo P, Keane JA and Wilson J
The current application before the Tribunal concerns the affidavit of Robert Henry Patrick Brittan, complaints manager in the Commissioner’s office, filed on 19 February 2010 in support of the Commissioner’s discipline application (‘the Brittan affidavit’). It contains twenty-two (22) paragraphs and has twenty-five (25) exhibits. Mr Puryer seeks to strike out parts, or all, of the affidavit which he alleges contains material that is irrelevant, oppressive, embarrassing and/or vexatious; or, in the alternative, hearsay material.
He asserts, firstly, that the Brittan affidavit is too voluminous and that the exhibits themselves are not relevant to the issues raised in the discipline application. He does not address, in any specific or cogent way, how the exhibits are irrelevant but contends, generally, that the affidavit should only contain facts, matters and circumstances that occurred on or before the December 2007 hearing before Daubney J, and exclude any facts, matters and circumstances occurring or arising after the conclusion of that hearing.
The documents that fall within this purported exclusion include:
Exhibit “RHPB4” – the outline of submissions tendered by the respondent in the Court of Appeal proceedings;
Exhibit “RHPB6” – the Court of Appeal judgment delivered on 22 August 2008;
Exhibit “RHPB7” – a copy of the Appeal Record Book
Exhibit “RHPB8” – a copy of the respondent’s amended outline of submissions;
Exhibit “RHPB9” – a copy of the response submissions of the respondent’s former defacto wife for the Court of Appeal proceedings;
Exhibit “RHPB10” – a copy of the transcript of proceedings in the Court of Appeal dated 15 August 2010; and
Exhibit “RHPB11” – a copy of the transcript of proceedings in the Court of Appeal dated 31 July 2010.
This Tribunal is vested with a discretionary power to dismiss or strike out a proceeding or part of a proceeding if it is frivolous, vexatious, misconceived, lacking in substance or is otherwise an abuse of process: QCAT Act, s 47. The Act is not specific whether ‘part of a proceeding’ might refer to affidavit material filed in support of an application but the emphasis, in the legislation, on informality and expedition[4], and the fact it excuses the tribunal from being bound by the rules of evidence[5] compels the conclusion that the power might sensibly be used, if it is available, here. That said, in matters related to disciplinary applications, which give rise to serious questions about a practitioner’s conduct, it is appropriate for the Tribunal to consider any relevant rules of evidence[6].
[4]QCAT Act, ss 3, 4
[5]Section 28(3)(b)
[6]See, for example, the discussion of the application of the Briginshaw principles in Polglaze v The Veterinary Practitioners Board of NSW [2010] NSWCA 4.
It is trite law that an affidavit should only contain material facts relevant to the questions that have to be determined in a proceeding. Relevant evidence is the kind that could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding[7].
[7]Goldsmith v Sandilands (2002) 190 CLR 370 at [2]
This same test applies to material filed before the Tribunal[8]. As Deane J (as his Honour then was) said in Minister for Immigration and Ethnic Affairs v Pochi(1980) 31 ALR 666 at 690:
…a decision of such a statutory tribunal must ordinarily be based on evidence which is reasonably capable of sustaining it … the requirement that findings of material fact of a statutory tribunal must ordinarily be based on logically probative material and the requirement that the actual decision of such a tribunal must, when relevant questions of fact are in issue, ordinarily be based upon such findings of material fact and not on mere suspicion or speculation. (internal references omitted)
[8]R v Deputy Industrial Industries Cmr; Ex parte Moore [1965] All ER 81 at 94 (per Lord Diplock)
Deputy President Forgie of the Administrative Appeals Tribunal observed in Re General Merchandise & Apparel Group Pty Ltd and CEO of Customs and Another (2009) 114 ALD 289 at para [139] that, although the Tribunal was not bound by the rules of evidence, it was still required to determine whether the material before it was reliable and logically probative of a fact in issue before it.
The first question here, then, is whether the material in the Brittan affidavit is logically probative in the sense that it tends to show the existence or non-existence of facts relevant to the issues for determination.
Mr Puryer submits that the appropriate test for an application of this kind was properly enunciated in the English Court of Appeal decision of Rossage v Rossage and Others[9]. That case concerned family law proceedings in which the mother of a child applied to strike out certain affidavits filed by the child’s father on the grounds that they were scandalous and irrelevant.
[9][1960] 1 All ER 600
In discussing the power to strike out irrelevant and scandalous material, Hodson LJ (with whom Ormerod LJ and Wilmer LJ agreed) observed at 602 that:
It is quite clear that we cannot simply strike out matters in a pleading or affidavit simply because they are scandalous, because scandalous matter may be relevant, and may be the very matters which have to be investigated by the court. If, however, the matters are plainly irrelevant, as they are here, there is no doubt that the court can strike them out, either by virtue of its inherent power or by virtue of the power contained in RSC, Ord 38, r 11. (emphasis added)
That passage was cited with approval by Asche J in R v Secretary for Department of Chief Minister and Others; Ex parte Boswell (1987) 47 NTR 1 at 4. He observed that it was consistent with the general rule that a court should not normally strike out passages in an affidavit before it goes to trial unless they are plainly irrelevant; or, that the court would be embarrassed by their presence on the record, or the opposing party would be embarrassed in having to deal with them. (‘Embarrassing’ in a legal context means material that is unintelligible, ambiguous, vague or too general[10].)
[10]Pethers v Minister for Agriculture [2010] NSWSC 805 at 22
The passage in Rosage was also cited with approval by Bleby J in Buzzacott v Morgan (No 2) [1999] SASC 562 at 47, where his Honour distilled the relevant test to a simple question: is the affidavit, or portions of it, relevant to the issues in dispute?
The Commissioner’s submissions accept that the Rosage approach is the proper one for applications of the present kind.
In Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 247 Deane J observed that ”oppressive” (in the context of a forum non conveniens) should be understood as meaning seriously and unfairly burdensome, prejudicial or damaging; while “vexatious” means productive of serious and unjustified trouble and harassment. These definitions have been adopted in cases addressing the question whether proceedings themselves are frivolous or vexatious[11].
[11] Mudie v Gainriver P/L & Anor [2003] 2 Qd R 271 at [35] (per McMurdo P and Atkinson J)
Under the approach taken by Hodson LJ and Bleby J even material that could be categorised as oppressive or vexatious may still be relevant to the issues in dispute. For reasons that follow, however, it is unnecessary to address that question in this application because I am not persuaded that any of the material objected to by the respondent is either oppressive or vexatious in the Oceanic sense.
Exhibit RHPB4
This exhibit is a copy of the outline of submissions filed by the respondent on 1 May 2008 in the Court of Appeal proceedings. Mr Puryer submitted that Dutney J did not read or appreciate the material that was relied on and that a close reading would have revealed that in fact the court had not been mislead at the earlier hearing. The submission addresses Mr Puryer’s position on the charges in the disciplinary action and the conduct of the case in the Supreme Court, and is plainly relevant.
Exhibit RHPB6
This is a copy of the Court of Appeal decision of 22 August 2008 concerning Mr Puryer’s application to set aside the decision of Dutney J. Pages 5 – 11 of the judgment directly touch on all three of the charges in the disciplinary application. The judgment does not, as the passage set out earlier shows, purport to answer the questions that arise before this Tribunal: whether the court had been misled, intentionally or not. Rather, it is simply part of the background or matrix of facts and events which led to the matter coming here and, for that reason, relevant[12].
Exhibit RHPB7
[12]See the comments of Hasluck J in Solomon v Psychologists Board of Western Australia [2000]
WASCA 266 at para [39].
This is a copy of the Appeal Record Book in the Court of Appeal. It is by far the most voluminous exhibit, containing 350 pages and including 23 separate documents and annexed exhibits.
Mr Puryer has not particularised the documents to which he objects. All are copies of official court records. Many are of the kind he does not object to – i.e. they relate to events that occurred at or before the December hearing. All appear to have obvious relevance.
Exhibits RPHB8 and RPHB9
These exhibits contain copies of Ms Coombs’ outlines of submissions in the Court of Appeal proceedings. They pertain to the decision of Dutney J to set aside an order made earlier by Daubney J, and challenge Mr Puryer’s contention that Dutney J failed to read or appreciate the affidavit material. Again, they have obvious relevance to the question whether the court was mislead at the December hearing.
Exhibits RPHB10 and RHPB11
Exhibits 10 and 11 are the transcripts of proceedings before the Court of Appeal at hearings in 2008. As both transcripts show, each of issues in dispute leading to the Commissioner’s charges against Mr Puryer is canvassed at the hearings. Again, the relevance of them is plain.
Hearsay
Mr Puryer also alleges that the exhibits containing these court documents and the any other communication regarding the discipline application which is not directly between the Mr Brittan and him is hearsay. Court documents themselves are part of the public record and Mr Puryer has not sought to contest their veracity, as records. The hearsay rule does not apply in those circumstances[13].
[13]See J D Heydon, Cross on Evidence (7th Ed) (LexisNexis Butterworths: 2004) p 970, para [31010] citing Subramaniam v Public Prosecutor [1956] WLR 965 at 970 (PC); Evidence Act 1977 (Qld), ss 51 and 53.
Even if accepted as hearsay, s 92(3) of the Evidence Act 1977 provides that the court[14] may act on hearsay evidence if the disputed document forms part of a record relating to an undertaking[15] and made in the course of the undertaking, and it would be inappropriate, having regard to the circumstances identified in s 92(2)(f), to call on the supplier or maker of the statements as a witness. On any view, however, this Tribunal has the discretion to inform itself in any way it considers appropriate: QCAT Act, s 28(3)(c).
[14]Schedule 3, the term “Court” includes Tribunal
[15]See Schedule 3 for the meaning of “undertaking”
The difficulty, then, confronting Mr Puryer’s misconceived application is that all of the material objected to as hearsay is either on public record, or plainly within the knowledge of Mr Brittan.
Exhibit RPBH1 is a copy of a letter from the Director of the Courts (Supreme and District) referring the matter to the Commissioner’s attention. Exhibit RPBH3 is a copy of email correspondence between the Commission and the Executive Officer to the Director of Courts in relation to the transcript of proceedings for the December hearing.
The remainder of the exhibits to which Mr Puryer takes objection are copies of letters and email messages between the Commission and him. The objection is facile: Mr Brittan is the Commissioner’s complaints manager, and the fact, and contents of the correspondence is plainly within his knowledge.
It is appropriate, however, to make one further observation concerning Exhibit RPBH25 which is a copy of Mr Puryer’s response to the Commissioner’s application. In his submissions, Mr Puryer contends that this exhibit does not speak to the application but is rather related to a separate enquiry regarding his obligations under the LPA with regard to ss 437 and 443 and is, therefore, irrelevant and prejudicial given the fact that he was required to respond under threat of penalty.
At page 2, paragraph 5 of the exhibit Mr Puryer writes: “Whilst not conceding that I am obliged to respond to such a complaint nevertheless, as I indicated previously, I am prepared to do so voluntarily as a gesture of goodwill.”
It seems Mr Puryer has failed to appreciate that, under the LPA, the Commissioner is obliged to notify a respondent of any disciplinary investigation (s 437) and may require him or her to provide an oral or written explanation about the matter being investigated (s 443(1)(a)(i)). If there is a failure to comply, the Commissioner may grant a further 14 days to comply (s 443(3)), after which the respondent can then be taken to have committed professional misconduct unless a reasonable excuse can be provided (s 443(4)(a)).
Mr Puryer, it appears, has also failed to appreciate that s 443(5) mandates that any notice pursuant to s 443(3) is to be entered as evidence in relation to the matters in the notice. The matters, in this instance, refer to the disciplinary charges.
The evidence shows that the Commissioner issued Mr Puryer with a notice under s 443(1)(a)(i) on 1 December 2008; that he failed to provide a response within a reasonable time and was issued with a further notice under s 443(3) on 17 December 2008; and that he was then granted a further extension to which he finally replied on 23 January 2009.
Pursuant to s 443(5), the Tribunal is obliged to take into account Mr Puryer’s response exhibited in RPBH25. In the circumstances, it cannot be said that the exhibit is either irrelevant, or prejudicial.
Conclusion
In his submissions Mr Puryer also sought an oral hearing in respect of his application. For the reasons explored above, none of the grounds of objection he purports to raise are made out. He has had ample opportunity to make all his submissions in writing and there is no basis for thinking they might usefully or materially be supplemented by further oral submissions. His application to strike out all or part of Mr Brittan’s affidavit filed on 19 February 2010 is dismissed.
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