| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : LI and LEGAL PROFESSION COMPLAINTS COMMITTEE [2014] WASAT 36 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT) HEARD : 6 MARCH 2014 DELIVERED : 6 MARCH 2014 PUBLISHED : 24 MARCH 2014 FILE NO/S : VR 34 of 2013 BETWEEN : DONGGUANG LI Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First respondent
ALLAN DRAKE-BROCKMAN
Second respondent
BRIAN JACKSON
Third respondent
Catchwords: Practice and procedure - Extension of time in which to seek review - Legal practitioners - Review of decision of Legal Profession Complaints Committee to dismiss complaint about legal practitioner Legislation: Legal Profession Act 2008 (WA), s 410, s 415(1)(b), s 435, s 435(2)
State Administrative Tribunal Act 2004 (WA), s 20, s 24
State Administrative Tribunal Rules 2004 (WA), r 9, r 10 Result: Application for extension of time in which to seek review dismissed
Summary of Tribunal's decision: Dr Dongguang Li made complaints to the Legal Profession Complaints Committee pursuant to s 410 of the Legal Profession Act 2008 (WA) in relation to the conduct of two practitioners, Mr Allan Drake-Brockman and Mr Brian Jackson. These complaints arose in connection with proceedings in Fair Work Australia in which Dr Li was a party.
The Legal Profession Complaints Committee dismissed the complaints. Dr Li had a right to seek review within 28 days of being given notice of the decision. Dr Li applied to the Tribunal for review of the decision some 27 days out of time and sought an extension of time. The practitioners opposed the application for an extension of time.
The Tribunal refused to extend time in which to seek a review, based primarily on its conclusion that there was no reasonable likelihood of the Tribunal making a finding of professional misconduct or unsatisfactory professional conduct against the practitioners if the complaints were brought to the Tribunal. The Tribunal gave an oral decision following the hearing, and subsequently published written reasons.
Category: B
Representation: Counsel:
Applicant : In person
First respondent : Ms D Mahiepala
Second respondent : Mr R Price
Third respondent : Mr R Price
Solicitors:
Applicant : N/A
First respondent : Legal Profession Complaints Committee
Second respondent : DLA Piper Australia
Third respondent : DLA Piper Australia
Case(s) referred to in decision(s):
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Howle v Best [2012] WASC 62
Li v Cox [2012] WADC 97
Li v Edith Cowan University [2012] FWA 1887
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 In 2011, Dr Dongguang Li made a number of complaints to the first respondent, the Legal Profession Complaints Committee (Committee), about the conduct of two legal practitioners, Mr Allan DrakeBrockman and Mr Brian Jackson (Mr DrakeBrockman, Mr Jackson or the practitioners, as the case may be). There were six complaints, (Complaints 16) together with what the Committee referred to as 'Various sundry complaints' and to which I will refer to collectively as Complaint 7. 2 The Committee under s 415(1)(b) of the Legal Profession Act 2008 (WA) (LP Act) considered that all of the complaints lacked substance and dismissed them. Further, in the case of Complaint 4, Complaint 5, Complaint 6 and also Complaint 7, the Committee made a finding that the complaints were unreasonable. 3 The letter from the Committee to Dr Li informing Dr Li of the Committee's decision is dated 17 December 2012. 4 Dr Li applied to the Tribunal for a review of the Committee's decision under s 435 of the LP Act. Dr Li's application is dated 12 February 2013 and was filed with the Tribunal on 13 February 2013.
Factual background 5 Before addressing the issues, I will set out briefly the factual background. These facts are not in dispute between the parties. 6 Dr Li was employed by Edith Cowan University (ECU) from September 1995 until his dismissal on 11 January 2011. Prior to his dismissal, Dr Li was an Associate Professor of the School of Computer and Security Science. 7 Dr Li's employment was terminated by ECU on the grounds of serious misconduct, ECU asserting that Dr Li had: a) plagiarised a paper presented by Associate Professor Zhihu Huang entitled 'A Novel Segmentation Approach for Ballistics Image Identification' for use in Dr Li's paper to the Second Australian Security and Intelligence Conference entitled 'Firearm Forensics Based on Ballistics Cartridge Case Image Segmentation Using Colour Invariants'; b) plagiarised four separate papers and misrepresented them to suggest that Dr Li was the sole author as follows: • A Novel Ballistics Imaging System For Firearm Identification; • Colour Seal Segmentation and Identification; • Analysis of Movement Invariants On Image Scaling and Rotation; and • A Novel Binarization Algorithm for Ballistics Firearm Identification (papers); c) misled ECU regarding the authorship of the papers; and d) breached ECU's policies regarding authorship of research and the Australian Code for the Responsible Conduct of Research regarding authorship of research. 8 Dr Li made an application to Fair Work Australia, claiming that he had been unfairly dismissed from his employment. 9 ECU appointed the practitioners to act for ECU in that matter. 10 Fair Work Australia, in a decision delivered on 9 March 2012 (Li v Edith Cowan University [2012] FWA 1887) (Li v ECU)) found that Dr Li had committed acts of professional misconduct in that Dr Li published the papers under his name alone where others, at least, should have been included as coauthors or acknowledged as having contributed; Li v ECU at [19]. This misconduct was of such a nature that there was a valid reason for his dismissal; Li v ECU at [26]. 11 Fair Work Australia did not consider his conduct to include acts of plagiarism; Li v ECU at [17]. 12 However, Fair Work Australia also found that, because Dr Li had not been given sufficient opportunity to respond to ECU and to present personally his explanations for his conduct, Dr Li's dismissal was unfair; Li v ECU at [31]. 13 In terms of remedy, Fair Work Australia decided that reinstatement was not appropriate because the relationship between the parties was 'soured to the point of it being unrecoverable'; Li v ECU at [32]. Noting that, but for the inadequacies of ECU's processes, the dismissal was not unfair, Fair Work Australia instead ordered ECU to pay to Dr Li compensation of an amount equal to two month's pay; Li v ECU at [33]. 14 ECU then advised Dr Li that ECU intended to deduct from the compensation payment an amount of $4,200, because Dr Li had failed to return a computer, a camera and two keys. Dr Li lodged a claim in the Perth Magistrates Court against ECU but that claim was subsequently struck out. Dr Li unsuccessfully appealed against the strike out order in the District Court.
The preliminary issues and the President's directions 15 Rule 9 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) provides that an application to the Tribunal under its review jurisdiction must be made within 28 days of the day on which the Committee gave notice to Dr Li of its decision. Also, under s 435(2) of the LP Act, because the Committee found some of the complaints to be unreasonable, Dr Li could not apply to the Tribunal for a review of the Committee's decision in respect of those complaints without the leave of the Tribunal. 16 On 7 May 2013, the then President of the Tribunal, Chaney J, ordered that on or before 14 May 2013, Dr Li was to file and give to the other parties a statement setting out why he says that the Tribunal should grant an extension of time for the commencement of the proceedings. His Honour also ordered that the Committee file and give to the other parties a bundle of documents in accordance with s 24 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). He listed the matter for hearing on 31 May 2013 in order to deal with the questions of extension of time, leave pursuant to s 435(2) of the LP Act and any application by the practitioners to strike out the application as lacking in substance. 17 The Committee filed its bundle of documents on 16 May 2013.
Adjournment of hearing on 31 May 2013 18 On 21 May 2013, the Tribunal received a letter from Dr Li requesting an adjournment of the hearing on 31 May 2013. Dr Li stated that he is a disabled person with mental illness and had been certified by his treating doctor to be totally unfit for work until 8 July 2013. Dr Li advised the Tribunal that he considered himself incapable to 'deal with the legal matters' and asked that the matter not be heard until after 8 July 2013. 19 The Tribunal considered this request and also the submissions made by the practitioners on the subject. The Tribunal vacated the hearing date of 31 May 2013 and listed the matter to be heard instead on 10 July 2013. 20 On 3 July 2013, Dr Li's wife wrote to the Tribunal explaining that she is Dr Li's carer and noting that Dr Li's application had been listed to be heard on 10 July 2013. 21 Dr Li's carer expressed a great deal of concern that 'there would be a risk of making [Dr Li's] health worse if he would continue to deal with those legal cases'. Dr Li's carer requested a further adjournment. 22 Again, having considered the submissions of the practitioners in opposing a further adjournment, the Tribunal vacated the hearing date of 10 July 2013 and listed the matter for hearing to commence at 10 am on 6 February 2014. 23 For reasons which have been adequately explained, counsel for the practitioners then became unavailable on 6 February 2014 and that hearing date was vacated. The matter was relisted for hearing on 6 March 2014.
The hearing on 6 March 2014 24 At the hearing on 6 March 2014, the Tribunal constituted by me, a Deputy President of the Tribunal sitting alone, considered the first preliminary issue, namely Dr Li's application under r 10 of the SAT Rules for an extension of time to make the application. 25 Dr Li was assisted at the hearing by an interpreter. The interpreter interpreted what others said at the hearing, although Dr Li made his oral submissions himself in English. 26 At the conclusion of the hearing, I delivered my decision, which was to dismiss Dr Li's application for an extension of time. It was therefore unnecessary for me to make a decision on the second preliminary issue, namely whether leave should be granted under s 435(2) of the LP Act. 27 At the hearing, because of Dr Li's obvious distress, I did not give reasons for my decision but instead undertook to give written reasons. These are those reasons.
The first issue - should the time for commencement of the proceedings be extended? 28 As I have already mentioned, applications brought in the Tribunal's review jurisdiction must be made within 28 days of the date on which notice of the right of review is given by the original decision maker; SAT Rules r 9. Under r 10 of the SAT Rules, the Tribunal may extend the time fixed for the commencement of a proceeding. 29 The principles to be applied in considering whether to extend time under r 10 of the SAT Rules were discussed in another context by Simmonds J in Howle v Best [2012] WASC 62 at [31]. In that decision, His Honour said that the major factors to be considered by the Tribunal in determining whether to grant or refuse an application for an extension of time to bring an application for a review are as stated in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 (Esther). His Honour pointed out that an extension of time is not automatic and that the discretion to extend time is given for the sole purpose of enabling the Tribunal to do justice between the parties. He said that there must be some material upon which the Tribunal can exercise its discretion and specified that there are, generally, at least four major factors to be considered, none of which are necessarily exhaustive: a) the length of the delay; b) the reasons for the delay; c) the prospects of the applicant succeeding; and d) the extent of any prejudice to the other party. 30 With regard to the third matter, namely the prospects of the applicant's application succeeding, his Honour said that the converse of that proposition is not that time must be extended if a late application has any prospect of success. Rather, the fact that a late application has some prospect of success is a factor which is to be taken into account, together with all other relevant factors. It is not the law that, whenever an applicant demonstrates an arguable case, or even a strongly arguable case, in the absence of significant prejudice suffered by the other party, an extension of time should be granted.
Dr Li's application for an extension of time 31 I will now consider each of the principal considerations in the exercise of discretion as to whether to extend the time for the application for a proposed review in turn.
The length of the delay 32 In this case, the Committee's letter of 17 December 2012 containing the Committee's decision included an advice, in compliance with s 20 of the SAT Act, that Dr Li may apply to the Tribunal for a review of the Committee's decision 'within 28 days of notice of the decision', subject to the requirements for leave pursuant to s 435(2) of the LP Act. 33 There is no evidence to suggest that the decision letter was sent in any other way but by post. It is reasonable to conclude that the letter, having been signed on behalf of the Committee on the 17 December 2012, would have been posted to Dr Li either on the 17th or the 18th of December 2012. In the ordinary course of post this letter would have reached Dr Li's address within two business days. There is also nothing to support Dr Li's conjecture that the decision letter was not posted to him until after 1 January 2013. Dr Li bases this on a note which appears at the end of the decision letter as follows: Please note this office will be closed over the Christmas period 24 December 20121 January 2013. 34 I do not consider that it is likely that the decision letter would have been held until after 1 January 2013. It is more likely that the decision letter reached Dr Li's address on 20 December 2012. 35 It follows that Dr Li's application for review was required to be made by 17 January 2013, whereas it was not made until 13 February 2013. This is 27 days late, almost twice the amount of time allowed by r 9 of the SAT Rules. A delay of that length cannot be regarded as insignificant in the context of the 28 days allowed for commencement of proceedings.
The reasons for the delay 36 Dr Li has given his reasons for the delay. He explained, and provided evidence in the form of copies of flight itineraries, that he was overseas from 13 December 2012 and did not return to Perth until 22 January 2013. Dr Li says that the purpose of his trip overseas was for medical treatment, although no other evidence of the purpose of that trip has been provided to the Tribunal. 37 Dr Li reminds the Tribunal that he had filed his complaint with the Committee some two years earlier and that he had no reason to expect that a decision from the Committee was imminent. For that reason, it did not occur to him to notify the Committee that he intended to travel or to give the Committee a forwarding address. 38 I accept this. Dr Li could not have known that the Committee was about to deliver its decision and, had he made an application to the Tribunal for a review of that decision immediately or soon after his return to Perth then I would have been prepared to accept his reason for that delay. However, Dr Li has provided no explanation for the delay in submitting his application once he had returned to Perth on 22 January 2013. A further 22 days elapsed before the application was filed. Even allowing a few days to consider the decision and to submit what was a fairly brief application, the delay was still significant.
The applicant's prospects of success 39 The Committee in its decision of 17 December 2012 summarised the complaints which Dr Li had made against the practitioners. Dr Li has taken no exception to the manner in which the complaints have been described and I proceed on the basis that the complaints made by Dr Li are reflected accurately in the Committee's decision. 40 The complaints are as follows, and in each case I include a summary of the Committee's decision:
Complaint 1: Unethical conduct by Mr Jackson in personally attending to service of documents outside office hours 41 Dr Li complained that Mr Jackson conducted himself in an unethical manner by arranging for service of documents upon Dr Li at his home outside of office hours. He gave the Committee two examples. He said that Mr Jackson personally served documents at his home at 8 pm one night and also on a Saturday in September 2011 when he left documents in a folder (without an envelope) on Dr Li's front door mat. In respect of the 8 pm service, Dr Li indicated that due to the lateness of the hour he and his family were afraid to answer the door. In respect of the documents left on his front door mat, Dr Li alleged that a youth in his neighbourhood was able to read the documents, thereby causing him and his family embarrassment and distress. 42 Dr Li has further alleged that the leaving of documents on his front door mat was done intentionally in order to disclose his personal information and damage his reputation in his case in Fair Work Australia. 43 The Committee says that it did not ask Mr Jackson to provide formal submissions addressing this aspect of his complaint. However, this matter was raised by the Committee's legal officers during telephone conversations with Mr Jackson. 44 Mr Jackson had told the Committee that, as far as he could recall, he only attended to service personally on two occasions, and that was because he lived nearby and it was not out of his way. He said he was trying to extend a courtesy to Dr Li in ensuring he had the necessary documents during the course of the hearing. 45 On one occasion, he says that he knocked on Dr Li's door between about 5.30 pm and 6 pm and the door was answered by Dr Li's wife. He gave the documents to her and left. On the second occasion, he says no one answered the door and he left the documents propped up against Dr Li's front door. On that second occasion, the documents left for Dr Li were inside a lever arch file and the cover of the file did not disclose his name or refer to the name of the proceedings. 46 On other occasions, he says that service was effected using a courier service which required a signature from the recipient. 47 Mr Jackson denied intending to cause distress or alarm to Dr Li or his family. Mr Jackson did, however, extend his apology to Dr Li through the Committee if distress had been caused.
The Committee's decisions about Complaint 1 48 As mentioned earlier in these reasons, the background to this complaint is that Mr Jackson was one of the solicitors who acted on behalf of ECU in Dr Li's unfair dismissal claim in Fair Work Australia. Dr Li appeared in person. 49 As Dr Li was a selfrepresented litigant, the Committee accepted that it was necessary for documents to be served on him. The only address he provided for service was his home address and so that is the address which Mr Jackson was required to use (until other arrangements were made as a result of the intervention of Fair Work Australia). The Committee noted that service can be effected in a number of ways, one of which is personal service. The Committee said that there is nothing wrong with a practitioner choosing to effect service of documents personally to ensure they have been received. 50 In relation to service outside of office hours, again such service is allowed although the Committee considered that it would be expected that such service would not occur at such a late hour so as to cause concern or distress to the person being served. There is a conflict of evidence as to the time when Mr Jackson effected service of the documents on Dr Li's wife, which the Committee was unable to resolve. However, on either version of events, the time and manner in which Mr Jackson effected service on that occasion was not in the Committee's view unreasonable. 51 In respect of the second service when documents were left by Dr Li's front door, the Committee accepted that the documents were left in a lever arch file which did not, on its face, disclose his name or the nature of the proceedings in which he was involved. While the Committee considered that it would have been preferable if the file had been sealed in some way to prevent easy access by an unauthorised person to the documents inside, the failure to do so does not, in the Committee's view, amount to unsatisfactory professional conduct. 52 Though it was apparent to the Committee that Dr Li was distressed and embarrassed by the mode of service of documents the Committee did not feel an actual persuasion that Mr Jackson was inappropriate with regard to his conduct in effecting service upon Dr Li. 53 The Committee therefore concluded that this complaint was lacking in substance and required no further investigation.
Complaint 2: Unethical conduct by Mr DrakeBrockman during the Fair Work Australia proceedings 54 Dr Li complained that Mr DrakeBrockman accused him of being a liar during his crossexamination of Dr Li during the proceedings at Fair Work Australia and did not stop after being warned. 55 Again, the Committee did not seek a formal response from the practitioner on this issue. However, the Committee reviewed the context in which the words were used from the transcript of the hearing, held in Perth commencing on 22 June 2011 (matter number U2011/4259).
The Committee's decision about Complaint 2 56 This complaint was also made in the context of the proceedings brought by Dr Li against ECU for unfair dismissal. The words about which Dr Li complained were used in his crossexamination by Mr DrakeBrockman acting for ECU. The Committee noted Mr DrakeBrockman made the following comments at PN276: … I think you're a liar … and probably you shouldn't have even been on the paper … and at PN475: … I've already that you're a liar (sic), and maybe you just exaggerate things or you've got some other process occurring. 57 The Committee observed that these comments were made by Mr DrakeBrockman after it had been explained to Dr Li by the Deputy President that the practitioner was obliged to put questions to him to the effect that 'he does not believe you, you are not telling the truth, it is not your paper.' The Deputy President had also explained to him how he could respond to such questions. [PN211214]. 58 The Committee informed Dr Li in its decision letter that it is necessary in crossexamination for a practitioner to put his or her client's case to the witness and to test the credibility of the witness. The Committee noted that in doing so, however, a practitioner should take care not to ask questions or make statements that are only intended to insult or annoy the witness. In this case, from the Committee's reading the transcript, it had appeared to the Committee that the statements were made with the purpose of putting to Dr Li that his evidence was not truthful rather than merely to insult him. 59 On the basis of the information available to the Committee, the Committee formed the view that this complaint lacked substance and required no further investigation.
Complaint 3: Unethical conduct by both practitioners by obtaining a witness statement in breach of the Hague Evidence Convention 60 Dr Li complained that both practitioners had intentionally and knowingly breached the Hague Convention On The Taking of Evidence Abroad in Civil Or Commercial Matters (Hague Evidence Convention) by obtaining privately a witness statement from one of ECU's witnesses, Associate Professor Huang, and calling him to give evidence to Fair Work Australia by telephone, all without approval of the Chinese authorities. He said that such actions are unacceptable and inadmissible. 61 The Committee again elected not to ask the practitioners for a formal response on this issue, but the practitioners did provide to the Committee a copy of their letter to Fair Work Australia dated 27 September 2011 which addressed the issue.
The Committee's decision about Complaint 3 62 The Committee noted that this issue had been ventilated in correspondence between the practitioners and Fair Work Australia and also during the course of the hearing. 63 In Mr DrakeBrockman's letter to Fair Work Australia dated 27 September 2011, he set out his submissions as to why he did not consider the Hague Evidence Convention applied to Associate Professor Huang's evidence. This letter appears to have been written in response to concerns raised by Dr Li at the Fair Work Australia hearing as to a possible breach of the Hague Evidence Convention. 64 During the hearing, Mr DrakeBrockman informed the Deputy President that Associate Professor Huang was not now able to give evidence as Associate Professor Huang had been advised by the Minister for Education in China that he was forbidden to do so; PN3441. Mention is also made at PN3442 of Dr Li's letter to the Deputy President dated 23 September 2011 which, it appears, referred to the Hague Evidence Convention. 65 The Committee observed that, despite having apparently received a letter from Dr Li raising the issue of the Hague Evidence Convention, no adverse comment was made by the Deputy President of Fair Work Australia regarding Mr DrakeBrockman's conduct. 66 The Committee observed that the application or otherwise of the Hague Evidence Convention to the Fair Work Australia proceedings was not a matter for the Committee to decide. It noted that when the issue of the convention was brought to the practitioners' attention they carefully considered the matter and reached the view that it did not apply and cited authorities in support of that view. The Committee said that, even if their view was not correct, because the issue did not appear to be straightforward then any failure by the practitioners to comply with the convention in these circumstances could not amount to unsatisfactory professional conduct. 67 The Committee therefore formed the view that this complaint was lacking in substance and required no further investigation.
Complaint 4: Bribing a witness and obtaining a false statement 68 This complaint is that both practitioners convinced a witness, Mr Jingsong Leng, to give false evidence to Fair Work Australia by providing free legal services to him in proceedings commenced by Dr Li against Mr Leng in the Magistrates Court.
The Committee's decision about Complaint 4 69 The practitioners were not asked to provide a formal response to this complaint, because the Committee concluded that the material provided to it in support of this complaint did not support this allegation. The documents provided to the Committee merely showed that Mr Leng was the defendant in the Magistrates Court matter. One of the documents, the original claim form, was, in the opinion of the Committee, illegible. None of these documents provided any evidence in support of Dr Li's serious allegation. 70 Therefore, the Committee formed the view that this complaint lacked substance and was unreasonable and required no further investigation.
Complaint 5: Unethical conduct in representing others against Dr Li 71 Dr Li alleged that the practitioners were representing six different organisations and individuals against Dr Li and his wife at the same time one in Fair Work Australia, two cases in the Magistrates Court, one in the Australian Human Rights Commission, one in the Equal Opportunity Commission and one with the Department of Consumer and Employment Protection. Dr Li said that these are independent matters, and suggested that by representing the opposing side in the various jurisdictions the practitioners have mixed matters up and intentionally confused the courts and caused delay with court processes.
The Committee's decision about Complaint 5 72 The Committee was unclear about the basis of Dr Li's concern and noted the lack of any evidence that the practitioners were acting in those matters, who they were acting for or what the proceedings concerned. Dr Li had not provided any information to support this allegation. 73 The Committee considered in any event that the fact that the practitioners may have been acting for various parties in matters against Dr Li would not of itself give rise to a conflict or potential conflict of interest. 74 As no evidence has been provided to support what the Committee referred to as Dr Li's bare allegation, the Committee found the complaint was lacking in substance and unreasonable and that it required no further investigation.
Complaint 6: Mr Jackson failing to serve on Dr Li notice of an application to strike out Dr Li's claim in the Magistrates Court 75 Dr Li alleged that Dr Jackson intentionally 'conducted a corruption' in the Magistrates Court by filing an application to strike out his claim without serving any notice on him.
The Committee's decision about Complaint 6 76 This complaint arose following the decision of Staude DCJ in Li v Cox [2012] WADC 97, on appeal from the Magistrates Court of Western Australia. His Honour found that an application to strike out Dr Li's claim in the Magistrates Court proceedings had not been served on Dr Li in accordance with the rules of that Court. 77 On Dr Li's claim form in those proceedings, he inserted his residential address and ticked a box indicating that this was his address for service. Under 'contact details' he gave his mobile telephone number and email address. 78 On 29 November 2011 the solicitors for the defendant in those proceedings filed an application for orders that the claim be struck out. The application was endorsed with Dr Li's name and address. The application was sent by post to Mr Jackson's firm for service on Dr Li. It appears that Mr Jackson sent Dr Li an email on 2 December 2011 purporting to serve the application and supporting affidavit on Dr Li and advising him of the listing date. Mr Jackson sent a further email on 15 December 2011 confirming the listing date. Dr Li did not attend the listing and an order was made striking out his claim. Dr Li appealed the decision to the District Court. 79 Although it was accepted by the Committee that Dr Li had not been served with the application in accordance with the rules of the Magistrates Court, this appeared to the Committee to have been a procedural error only. The Committee accepted as that Mr Jackson had attempted to serve the application on Dr Li and even followed up at a later time to remind him of the listing date. 80 The Committee noted that the rules of the Magistrates Court do permit service by email where the email address is provided as the address for service rather than as part of the contact details as occurred in Dr Li's case. 81 The Committee concluded that as the failure to serve Dr Li by post was a procedural error only. The Committee's decision was that the complaint was lacking in substance and unreasonable and required no further investigation.
Further complaints (Complaint 7) 82 In the course of Dr Li's correspondence with the Committee, he raised the following additional complaints: The Committee's decision about Complaint 7
Misleading Fair Work Australia about publication of papers 83 In support of Dr Li's allegation he provided an excerpt from the transcript of the Fair Work Australia proceedings where he asked through his interpreter whether a copy of a particular paper was published. Mr DrakeBrockman responded that 'Yes, a document was published but I'll get to that'. (Emphasis added). 84 After this response, Mr DrakeBrockman referred a number of papers to Dr Li for a response about authorship and also referred to the publication of some of the papers he was questioning Dr Li about. It appears that Mr DrakeBrockman's response to Dr Li's questions was not, as Dr Li had understood it, to indicate that the particular paper Dr Li was talking about was published but merely to indicate that a document had been published. It is unclear which document the practitioner was referring to at that time but it does appear from the transcript that it was his client's case that there were published documents. 85 Accordingly, there is insufficient evidence that Mr DrakeBrockman misled Fair Work Australia as alleged and there is no evidence that Mr Jackson misled Fair Work Australia in relation to this matter.
Making many unsupported and irrelevant allegations in the Fair Work hearing 86 The Committee observed that Dr Li had not provided any material in support of this allegation. Therefore, the Committee concluded that there is no evidence that the practitioners made many unsupported and irrelevant allegations in the Fair Work Australia hearing.
Misleading the Magistrates Court as to whether Dr Li was a coauthor of a paper 87 In support of this allegation, Dr Li provided two excerpts from the transcript of the Fair Work Australia hearing and what appeared to be part of Mr Leng's statement of defence to the claim in Magistrates Court proceedings 7747 of 2011. 88 The Committee reviewed the full transcript of the Fair Work Australia proceedings and it appeared to the Committee that Mr DrakeBrockman's client's position was that there were various papers which originally had Dr Li's name as a coauthor and which later appeared with Dr Li's name solely as the author. There is reference at PN361 to an email from Associate Professor Huang to Dr Li stating that, although Dr Li may not be an author of the ballistic papers, in accordance with the policy of ECU he would like to add Dr Li as one of the authors as a matter of courtesy. 89 The excerpt from Mr Leng's statement of defence was that Associate Professor Huang had written three papers on ballistics and that Dr Li made little, if any, contribution to those papers and at no time held any copyright in the papers. 90 Based on that, the Committee concluded that there was insufficient evidence that either Mr DrakeBrockman or Mr Jackson misled the Magistrates Court. Even on the assumption that Mr DrakeBrockman or Mr Jackson or both of them prepared the statement of defence, that defence is not at odds with the evidence presented in the Fair Work Australia hearing.
Incorrectly claiming that the Magistrates Court did not have jurisdiction to hear copyright infringement cases 91 Dr Li did not provide any evidence in support of this bare allegation. Therefore, the Committee concluded that there is no evidence that the practitioners incorrectly claimed that the Magistrates Court did not have jurisdiction to hear copyright infringement cases.
Using false material in order to file an appeal out of time 92 Dr Li did not provide any material in support of this complaint. Therefore, the Committee concluded that there is no evidence which indicates that Mr Jackson used false material to file an appeal out of time.
Knowingly manufacturing false evidence to the Magistrates Court in proceedings 7747 of 2011 93 Dr Li not provide any material in support of this complaint. Therefore, the Committee concluded that there is no evidence which indicates that Mr Jackson manufactured false evidence to the Magistrates Court in this matter. 94 In respect of all of Complaint 7, for the reasons set out above, the Committee found that each of the complaints were lacking in substance and unreasonable and required no further investigation.
My finding in respect of the applicant's prospect of success 95 For the reasons which follow, I do not consider that Dr Li's application for review of the Committee's decision has any reasonable prospect of success. Success in this sense would be the Tribunal concluding that there is a reasonable likelihood that one or both of the practitioners would be found guilty of professional misconduct or unsatisfactory professional misconduct if the conduct the subject of the Committee's decision had been referred to the Tribunal. 96 It follows that, on this factor alone, I would decline to extend time for the commencement of the application. 97 In respect of Complaint 1, I agree with the Committee's conclusion. It is unlikely that any conclusive evidence as to the time of Mr Jackson's visit to Dr Li's residence could be produced and in any event, Mr Jackson by his apology has acknowledged that it is inappropriate to attempt to effect personal service of documents at an unacceptably late hour. I note that the Committee accepted that the documents were left in a lever arch file which did not on its face, disclose his name or the nature of the proceedings in which he was involved. Dr Li says that the file clearly disclosed his name and the nature of the proceedings. In either case, I consider that it is unlikely that if this complaint had been brought to the Tribunal, the Tribunal would have made a finding of professional misconduct or unsatisfactory professional conduct. 98 In respect of Complaint 2, again I consider that the Committee's decision is correct. I regard it as significant that the Deputy President in Li v ECU made no adverse comment on the conduct of either practitioner, and indeed made the following comment at [8]: ECU's representatives were tolerant throughout the proceedings and clearly conscious of its difficulties and usually avoided taking objections they could easily have raised. 99 I do not consider that the Tribunal would have made a finding of professional misconduct or unsatisfactory professional conduct if this complaint had been brought to it. 100 For similar reasons, I come to the same conclusion about Complaint 3. Again, if the Deputy President had the remotest suspicion of misconduct on the part of either of the practitioners, it would have been evident from the transcript of the proceedings. There is no indication of any concern on the part of the Deputy President and I regard that as determinative. 101 In respect of Complaints 4, 5, and 6, I agree with the Committee's conclusion that the allegations could not be supported in any proceedings which might follow. It is not apparent how Dr Li would propose to substantiate these complaints and there is nothing in his application or in his submissions to the Tribunal which assists me in this regard. 102 Finally, in respect of Complaint 7, these appear to be vaguely formed complaints not otherwise included in the previous complaints. They are difficult to understand and I cannot see how they could be substantiated. Again, nothing in Dr Li's application or in his submissions to the Tribunal, despite having the benefit of the Committee's comments on these complaints, assist me in this regard.
Prejudice to the other parties 103 It is unnecessary for me to consider this factor, although I would add that I do not consider that, if I had granted an extension of time, the other parties would have suffered some further prejudice. The Committee could not be prejudiced, irrespective of whether or not the review proceeded to be heard. The practitioners have already had to contend with the ongoing spectre of disciplinary proceedings being commenced against them, despite the Committee having made its decision to dismiss the complaints some 13 months ago. However, this is only because of the delay in hearing the application for an extension of time. That delay was unavoidable and was due at least in part to the practitioners themselves. If an extension of time had been granted, then only at that point could it be argued that the granting of that extension would result in any further prejudice to the practitioners. In recognition of that, I made it clear at the outset of the hearing that if an extension of time were to be granted then the review proceedings would be conducted without further delay and therefore any prejudice would have been minimal.
Order 104 For these reasons, I made the following order on 6 March 2014: 1. The application for an extension of time under r 10 of the State Administrative Tribunal Rules 2004 (WA) in which to seek review of the decision of the first respondent to dismiss complaints made by the applicant against the second and third respondents under s 435 of the Legal Profession Act 2008 (WA) is dismissed. |