Li v Legal Profession Complaints Committee - [2014] WASCA 179

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LI -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2014] WASCA 179

CORAM: NEWNES JA
MURPHY JA

HEARD: 22 JULY 2014

DELIVERED : 26 SEPTEMBER 2014

FILE NO/S: CACV 33 of 2014

BETWEEN: DONGGUANG LI
Appellant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
ALLAN DRAKEBROCKMAN
Second Respondent
BRIAN JACKSON
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :JUDGE T SHARP (DEPUTY PRESIDENT)
Citation  :LI and LEGAL PROFESSION COMPLAINTS COMMITTEE [2014] WASAT 36
File No  :VR 34 of 2013

Catchwords:

Application to State Administrative Tribunal to review decision of Legal Profession Complaints Committee - Application to State Administrative Tribunal out of time - Whether leave to appeal decision of State Administrative Tribunal should be granted - Relevant legal principles - Whether State Administrative Tribunal properly considered reasons for delay - Whether appellant was denied procedural fairness by State Administrative Tribunal - Whether State Administrative Tribunal failed to exercise its review jurisdiction

Legislation:

Legal Profession Act 2008 (WA), s 415(1)(b), s 435
State Administrative Tribunal Act 2004 (WA), s 24, s 105, sch 1
State Administrative Tribunal Rules (WA), r 9, r 10

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     In person
First Respondent           :     Ms P Le Miere
Second Respondent      :     Mr R J Price
Third Respondent          :     Mr R J Price

Solicitors:

Appellant:     In person
First Respondent           :     Legal Profession Complaints Committee
Second Respondent      :     DLA Piper Australia
Third Respondent          :     DLA Piper Australia

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

Armstrong v Commissioner for Consumer Protection [2014] WASCA 71
Doepgen v Mugarinya Community Association Incorporated [2014] WASCA 67
Li v Edith Cowan University [2012] FWA 1887
Li v Legal Profession Complaints Committee [2014] WASAT 36
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
LS v Mental Health Review Board [2013] WASCA 128
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
JUDGMENT OF THE COURT:

Introduction

The appellant brought complaints against two legal practitioners to the Legal Profession Complaints Committee (the Committee). The solicitors had not acted for the appellant but for a party on the other side in a matter. The Committee dismissed the complaints, and the appellant subsequently applied to the State Administrative Tribunal (the Tribunal) for a review of the Committee's decision. The application for review to the Tribunal was out of time.
The principles concerning the review jurisdiction of the Tribunal were referred to in LS v Mental Health Review Board [2013] WASCA 128 [83] ‑ [98]. In broad terms, if an extension of time were granted, the role of the Tribunal would be not to look for an error on the part of the Committee, but to hear the matter afresh and make a decision on the material presented before it: LS [91].
At a hearing on 6 March 2014, the Tribunal dismissed the appellant's application, pursuant to r 10 of the State Administrative Tribunal Rules 2004 (WA) (the Rules), for an extension of time to make the application. The Tribunal delivered written reasons for its decision on 24 March 2014: Li v Legal Profession Complaints Committee [2014] WASAT 36 (the Reasons). (Unless indicated otherwise, all references are to paragraph numbers in the Reasons.)
The appellant seeks leave to appeal the decision of the Tribunal. In substance, the appellant's principal complaints to this court are that the Tribunal failed to consider his reasons for delay in bringing the application for review by the Tribunal in time, and that the Tribunal failed to provide him adequate opportunity to address the merits of his complaints against the legal practitioners at the hearing on 6 March 2014.
A preliminary issue was raised by the legal practitioners. They contend that the appellant commenced the appeal in this court out of time, and that an application for an extension of time was not brought. For the reasons which follow leave to appeal should not, in any event, be granted and it is unnecessary to deal with this issue.

Leave to appeal to this court - principles

Leave to appeal is required under s 105(1) of the State Administrative Tribunal Act 2004 (WA) (the Act). The test for whether leave should be granted was described by Martin CJ in Armstrong v Commissioner for Consumer Protection [2014] WASCA 71 as follows:
It is now well established that leave to appeal from a decision of the Tribunal will be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave, and that there are no rigid or exhaustive guidelines governing the grant of leave: Zampatti v Western Australian Planning Commission [2010] WASCA 149 [34] (Buss JA); Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] – [18] (Buss JA, Wheeler & Pullin JJA agreeing). However, the observations made by Phillips JA in Secretary to the Department of Premier and Cabinet v Hulls (1999) VSCA 117; [1999] 3 VR 331 in an analogous context are generally applied. There his Honour observed:
'When leave is sought to appeal … it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible [16].'
It follows that the question of whether leave to appeal should be granted … is inextricably connected with the merits of the arguments which the applicants would advance if granted an extension of time and leave to appeal, in the sense that there must be sufficient doubt as to the correctness of the Tribunal's decision to justify the grant of leave.
If leave were granted, the appellant contends that s 105(13) of that Act applies. Section 105(13) provides, relevantly, that if the Tribunal's decision is made in a proceeding for the review of a decision made under a relevant Act, and has the effect of depriving a person of the person's capacity to lawfully pursue a vocation, an appeal under the section may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact. A 'relevant act' is defined in s 105(14) to include an Act specified in sch 1, which includes relevantly the Legal Profession Act 2008 (WA). With respect to a decision having the 'effect' of depriving a person of their vocation, see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361, Buss JA (with Wheeler & Pullin JJA agreeing) [48]. The Tribunal's decision did not have this effect, and s 105(13) therefore has no application. Consequently, any appeal can only be brought on a question of law: s 105(2) of the Act: Lourey v Legal Profession Complaints Committee [2012] WASCA 112 [27].

Background

Fair Work Australia

The appellant was employed by Edith Cowan University (ECU) from September 1995 until 11 January 2011, when he was dismissed on grounds of serious misconduct. He appealed to Fair Work Australia, claiming unfair dismissal. The practitioners were acting for ECU [6] ‑ [12]. Fair Work Australia found that the appellant had committed acts of professional misconduct and there was a valid reason for his dismissal. However, Fair Work Australia also found that the appellant's dismissal was unfair due to insufficient opportunity to respond being granted to him: Li v Edith Cowan University [2012] FWA 1887 [26], [31]. 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 Edith Cowan University [32]. Having regard to the fact that, but for the inadequacies in ECU's processes the dismissal would not have been unfair, Fair Work Australia ordered ECU to pay to the appellant compensation equivalent to two month's pay: Li v Edith Cowan University [33].

Complaints to the Committee and the Committee's decision

In 2011, the appellant made seven complaints to the Committee concerning the conduct of the legal practitioners. Complaint 7 consisted of many subsidiary complaints. The Committee considered all complaints lacked substance and dismissed them pursuant to s 415(1)(b) of the Legal Profession Act. The Committee also found that complaints 4 ‑ 7 were unreasonable [1] ‑ [2].
On 17 December 2012, the Committee sent a letter to the appellant informing him of its decision [3].

Application for review of the Committee's decision

On 13 February 2013, an application was filed by the appellant for a review of the Committee's decision under s 435 of the Legal Profession Act [4].
Pursuant to r 9 of the Rules, 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 the appellant of its decision. The Tribunal may extend time pursuant to r 10 of the Rules. In addition, the appellant required leave of the Tribunal to review complaints 4 ‑ 7 pursuant to s 435(2) of the Legal Profession Act in consequence of the Committee finding such complaints were unreasonable [15].
The matter was originally listed for hearing on 31 May 2013, to determine questions of extension of time, leave pursuant to s 435(2) of the Legal Profession Act and any application by the practitioners to strike out the application as lacking in substance [16]. However, there were delays due to the inability of the appellant to attend court on two occasions, and on one occasion by counsel for the legal practitioners. The matter was ultimately heard on 6 March 2014.

The Tribunal's findings on the application for leave to extend time to apply for review of the Committee's decision

On 6 March 2014, the Tribunal was constituted by the Deputy President, Judge Sharp, sitting alone. The Tribunal first considered the preliminary issue concerning the application for an extension of time [24].
The Tribunal's statement of the principles relevant to the determination of an extension of time, which is not contested on appeal, was as follows:
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 [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. 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.
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 [29] ‑ [30].

Findings on delay

The Tribunal found that it was likely that the Committee's decision letter would have reached the appellant's address on 20 December 2012, and that his application for review was required to be made by 17 January 2013. The application was not made until 13 February 2013 [35]. The delay was 27 days, almost double the time allowed by r 9 of the Rules. Such a delay could not be regarded as 'insignificant' [32] ‑ [35].
The appellant gave evidence, which the Tribunal accepted, that he was overseas from 13 December 2012 until 22 January 2013. However, the Tribunal considered that there was no proper explanation for the further 22 day delay in submitting the application once the appellant had returned to Perth [38].

Findings on prospects of success

In relation to the issue of prospects of success, the Tribunal said:
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.
It follows that, on this factor alone, I would decline to extend time for the commencement of the application [95] ‑ [96]. (emphasis added)
The Tribunal summarised the complaints and the Committee's decision in respect of each complaint [41] [94]. The Tribunal then explained why it considered that each complaint had no reasonable prospect of success [97] ‑ [102]. For convenience, each of the complaints will be discussed in turn, including both the Committee's findings and the Tribunal's findings.

Complaint 1

The appellant complained that Mr Jackson conducted himself in an unethical manner by arranging for service of documents upon the appellant at his home outside of office hours. The appellant provided two alleged examples of such conduct to the Committee. Firstly, Mr Jackson personally served documents at his home at 8.00 pm one night. Secondly, Mr Jackson personally served documents at his home on a Saturday in September 2011, and on this occasion he left documents in a folder (without an envelope) on the appellant's front door mat. In respect of the 8.00 pm service, the appellant 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, the appellant alleged that a youth in his neighbourhood was able to read the documents, thereby causing him and his family embarrassment and distress. The appellant further alleged that Mr Jackson's action in leaving the documents on the front door mat was intended to disclose the appellant's personal information and damage his reputation in his case in Fair Work Australia [41] [42].
There was a conflict of evidence with respect to the time when service was effected on the appellant's wife. Nevertheless, the Committee said that on either version of events, the time and manner in which Mr Jackson effected service on that occasion was not unreasonable. In respect of the service of documents which were left by the appellant'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. Whilst 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 did not, in the Committee's view, amount to unsatisfactory professional conduct.
The Committee therefore concluded that this complaint was lacking in substance and required no further investigation [50] [53].
The Tribunal agreed with the Committee's conclusion [97]. The Tribunal said that it was unlikely that any conclusive evidence could be led as to the time of Mr Jackson's visit to the appellant's residence, and 'in any event', Mr Jackson had apologised thereby acknowledging the inappropriateness of attempting to effect personal service at an 'unacceptably' late hour. With respect to the documents left at the appellant's front door, the Tribunal said irrespective of whether the file disclosed on its face the appellant's name and the nature of the proceedings, it was unlikely that the Tribunal would have made a finding of professional misconduct or unsatisfactory professional conduct.

Complaint 2

The appellant complained that Mr Drake‑Brockman accused him of being a liar during his cross‑examination of the appellant during the proceedings at Fair Work Australia and did not stop after being warned [54].
The Committee informed the appellant in its decision letter that it is necessary in cross‑examination for a practitioner to put his or her client's case to the witness and to test the credibility of the witness. The Committee said that in doing so, the practitioner should take care so as to avoid asking questions or making statements intended only to insult or annoy the witness. Nonetheless, in examining the transcript, the Committee said the statements were made with the purpose of putting to appellant that his evidence was not truthful rather than merely to insult him [58]. Thus, the Committee formed the view that this complaint lacked substance and required no further investigation [58] [59].
The Tribunal said that the Committee's decision was 'correct' [98]. The Tribunal said it was significant that the Deputy President (of Fair Work Australia) in Li v Edith Cowan University made no adverse comment on the conduct of the practitioners, and that the Deputy President said:
ECU's representatives were tolerant throughout the proceedings and clearly conscious of its difficulties and usually avoided taking objections they could easily have raised [8].
Consequently, the Tribunal did not consider that it would have made a finding of professional misconduct or unsatisfactory professional conduct if this complaint was brought [99].

Complaint 3

The appellant complained that the legal practitioners 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. The appellant said these actions were unacceptable and inadmissible [60] [61].
The Committee said that whether the Hague Evidence Convention applied to Fair Work proceedings was not a matter for the Committee to decide. In addition, when the issue was brought to the practitioners' attention, they both carefully considered the matter and said that it did not apply, citing authorities. If such a view was incorrect, it still showed the issue was not straightforward, and any failure by the practitioners to comply with the Convention in these circumstances could not amount to unsatisfactory professional conduct [66] [67].
Similar to complaint 2, the Tribunal considered it significant that no issue was raised by the Deputy President in Li v Edith Cowan University concerning the Hague Evidence Convention. In this regard, the Tribunal said:
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 [100].

Complaints 4 ‑ 6

With respect to complaint 4, the appellant complained that the practitioners convinced a witness to give false evidence to Fair Work Australia by providing free legal services to the witness in proceedings commenced by the appellant against the witness in the Magistrates Court. The Committee concluded that the material provided did not support the allegation, and merely showed that the witness was the defendant in the Magistrates Court matter. The Committee formed the view that this complaint lacked substance and was unreasonable and required no further investigation [68] [70].
In respect of complaint 5, the appellant alleged, in effect, that the practitioners were representing six different organisations and individuals against the appellant and his wife in various courts and jurisdictions. In acting in these different capacities, the appellant claimed the practitioners had mixed matters up and intentionally confused the courts and caused delay with court process [71]. The Committee found that there was no evidence provided in support of this allegation, and in any event, acting for different parties against the appellant would not, in itself, give rise to a conflict or potential conflict of interest [72] [74].
The sixth complaint concerned the failure by Mr Jackson to serve on the appellant an application to strike out the appellant's claim in the Magistrates Court. Mr Jackson had served the application to the appellant's email address. The Committee found that service had been effected by email, which was not in accordance with the Magistrates Court rules. Nevertheless, this was a procedural error only, and Mr Jackson had attempted to serve the application on the appellant and followed up at a later time to remind him of the listing date. In addition, the Committee noted that the rules 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 the appellant's case [79] [81].
The Tribunal found with respect to complaints 4-6 that it agreed with the Committee's conclusion and that:
[T]he allegations could not be supported in any proceedings which might follow. It is not apparent how [the appellant] would propose to substantiate these complaints and there is nothing in his application or in his submissions to the Tribunal which assists … in this regard [101].

Complaint 7

Complaint seven comprised various complaints. The appellant alleged:
(a)against both practitioners: misleading Fair Work Australia about whether certain papers had been published, making many unsupported and irrelevant allegations in the Fair Work Australia hearing, misleading the Magistrates Court as to whether [the appellant] was a co‑author of a paper and incorrectly claiming that the Magistrates Court did not have jurisdiction to hear copyright infringement cases;
(b)against Mr Jackson: using false material in order to file an appeal out of time and knowingly manufacturing false evidence to the Magistrates Court in proceedings 7747 of 2011 [82].
The Committee found that there was insufficient evidence that Mr Drake‑Brockman mislead Fair Work Australia and no evidence that Mr Jackson mislead Fair Work Australia [83] [85]. In regards to making unsupported and irrelevant allegations, the Committee observed that the appellant had not provided any material in support of the allegation [86]. In regards to misleading the court as to whether the appellant was a co‑author of the paper, the Committee found there was insufficient evidence as to whether either of the practitioners misled the Magistrates Court [87] [90]. The Committee found that the appellant did not provide any evidence in support of the allegation that the Magistrates Court had no jurisdiction to hear copyright infringement cases [91]. The Committee also found that the appellant did not provide any material in support of his allegation that Mr Jackson used false material in order to file an appeal out of time [92]. Finally, the Committee found that the appellant did not provide any material in support of the allegation that Mr Jackson had manufactured evidence in the Magistrates Court proceedings [93]. The Committee found that all the allegations within complaint 7 were lacking in substance and were unreasonable [94].
The Tribunal said, with respect to the allegations within complaint 7, that:
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 [the appellant'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 [102].

Findings on prejudice

The Tribunal found, in effect, that although it was unnecessary to consider this factor, other parties would not have suffered further prejudice if leave were granted [103].

Grounds of appeal

The appellant's grounds of appeal to this court were as follows:
1.[The Committee's] decision was handed down without informing the Appellant.
2.The Appellant made his reasonable effort by lodging his review request with STA as soon as he found the decision of LPCC.
3.The main investigator and contact person on the Appellant's complaint against DLA PIPER's Lawyers (Allan Drake‑Brockman and Brian Jackson) in [the Committee], Ms A K BOWLER, deliberately and knowingly covers up the Respondents because she ever worked in DLA PIPER and she was a close colleague and a good friend of Mr Brian Jackson.
4.Due to the conflict of interest Ms Bowler should not be appointed to deal with the matter at [the Committee].
5.There are many significant errors in fact in the decision signed by Ms G Roberts who has not involved in investigating the matters.
6.Mr Allan Drake‑Brockman and Mr Brian Jackson have never been requested by [the Committee] to provide a formal response on those issues the Appellant raised in his complaint filed to [the Committee].
7.The Appellant complained against Mr Allan Drake‑Brockman and Mr Brian Jackson of DLA PIPER AUSTRALIA with up to 7 complaints in several legal proceedings. [The Committee] failed in conducting their investigation fairly.
8.The Appellant is entitled to seek a review of [the Committee's] decision by SAT and by Supreme Court of WA at this stage.
9.The Deputy President Judge T Sharp of SAT erred in law by not granting a review opportunity at SAT.
Grounds 1 ‑ 2, as formulated, allege, in effect, reasons for the appellant's delay in bringing the application for review to the Tribunal. No error of law is alleged. Grounds 3 ‑ 7 concern the Committee's decision, and no error of law by the Tribunal itself is alleged. Ground 8 asserts that the appellant is entitled to a review of the Committee's decision both by the Tribunal and this court. No error of law is alleged. Moreover, insofar as the ground contends that the appellant is entitled to a review of the Committee's decision by this court, that contention is fundamentally incorrect. The hearing before this court, if leave is granted, is confined to questions of law and is not a rehearing. Further, any appeal, if leave were granted, would be confined to any alleged errors of law by the Tribunal and not any errors in the Committee's decision. Accordingly, grounds 1 ‑ 8 do not identify recognisable error on the part of the Tribunal which would justify appellate intervention. Leave should be refused with respect to these grounds.
Ground 9 alleges error of law on the basis that the appellant was not granted 'a review opportunity' at the Tribunal.
In light of submissions made by the appellant at the hearing on 22 July 2014, it is possible to divide ground 9 into three separate contentions:
(a)the Tribunal did not properly consider the appellant's reasons for delay in making the application for review to the Tribunal;
(b)the appellant had no proper opportunity to make submissions about the merits of his complaints to the Tribunal and, consequently, the Tribunal failed to take into account the merits of the appellant's case and the appellant's prospects of success; and
(c)the Tribunal failed to exercise its jurisdiction correctly, and merely copied the Committee's findings with respect to the appellant's complaints without coming to its own findings on the complaints (appeal ts 22.7.14 pgs 7 ‑ 8, 10 ‑ 13).
As the merits are relevant to whether leave to appeal should be granted, the merits of ground 9 are examined below.

Ground 9

Contention (a)

The appellant contends that the Tribunal did not properly consider his reasons for delay in bringing the review application. In relation to the delay in bringing the application for review, the appellant submits, in effect, that as a result of the Committee's decision being handed down without informing the appellant whilst he was away overseas, the date from which the time period for review is counted should be the date that he first had an opportunity to read his mail. The appellant left for overseas on 13 December 2012, the decision was dated 17 December 2012, and the appellant arrived back in Australia on 23 January 2013. The first opportunity he had to read his mail was on 31 January 2013.
The Tribunal considered the length and reasons for delay at [32] [38]. The Tribunal expressly considered the reasons for delay that the appellant submits should have taken into account [36] [37]. However, the Tribunal said that whilst such considerations would have led it to accept the appellant's reasons for delay if the appellant had applied for a review immediately or soon after returning to Perth, a further 22 days had lapsed and there was no explanation for this [38]. (It is also evident from the transcript of the hearing of 6 March 2014 that the Tribunal took the considerations into account and provided the appellant the opportunity to properly put forward the evidence and submissions in support of this consideration: See, eg, ts 6.3.14 pgs 33 ‑ 36.)
No conceivable error of law is disclosed. Contention (a) has no arguable merit.

Contention (b)

Ground 9(b), in substance, alleges that the appellant was denied procedural fairness by the Tribunal on 6 March 2014. In Doepgen v Mugarinya Community Association Incorporated [2014] WASCA 67, Pullin and Newnes JJA said [11]:
The law of procedural fairness is concerned to avoid practical injustice. At its most basic, procedural fairness ensures that parties are given a fair opportunity to have their case heard and that the decision is made by a decision-maker free of bias. The specific content of the requirements of procedural fairness depends upon the particular circumstances of the case: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546, 552 ‑ 553; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] .
The appellant provided no additional evidence to the Tribunal in support of his application for review of his complaints against the legal practitioners. The Tribunal had before it materials in accordance with s 24 of the Act, and the appellant had been ordered to file and serve a statement setting out why he contended that the Tribunal should grant an extension of time [16] ‑ [17].
Turning to the transcript of the hearing on 6 March 2014, relevantly, after explaining how the Tribunal would approach the question of prospects of success (ts 6.3.14 pgs 36, 38 ‑ 39), the Tribunal said to the appellant:
[Y]ou've got to tell us a little bit more about your complaint against the two practitioners and explain why you think that they've done something wrong, but as I say, I don't think you need to worry too much about Ms Bowler's position in this. Just simply tell me why it is that you think that the practitioners ought to have a finding made against them.
To which the appellant responded:
Okay. Your Honour, I was told that I have a chance to explain why I have a complaint against two lawyers from [DLA] Piper.
The appellant then proceeded broadly to summarise complaints 1 and 2 (ts 6.3.14 pgs 39 ‑ 41). After hearing submissions in reply from counsel for the legal practitioners, the Tribunal gave the opportunity to the appellant to make further submissions in relation to his complaints against the legal practitioners which he had not yet addressed. In response, the appellant then proceeded to make further submissions with respect to complaint 1 (ts 6.3.2014 pgs 58 ‑ 59), and after further opportunity from the Tribunal he then addressed complaint 3 (ts 6.3.2014 pgs 60 ‑ 61). During the course of these submissions the appellant digressed into areas outside the issue before the Tribunal, at which point the Tribunal said to the appellant:
The Deputy President: … can I just stop you there because I think I understand that issue. Mr Kalejs [the interpreter], is there anything else that [the appellant] wants to tell us. I'm conscious of the fact we've been sitting now for well over two hours and I certainly don't want to cut him off. If there's anything else he needs to tell me, then he should, but I need to decide whether or not we need to take a break or anything.
Could you just check and see what else he might want to tell us.
[The appellant]: No.
The Deputy President:   It's really how much more time he needs.
[The appellant]: Now I move to the number 4 complaint. How much time do I have, your Honour?
The Deputy President:   It's up to you, but how long do you think you're going to need, because I need to decide if we need to stop for a little while.
[The appellant]: If I will require to focus on only number 4, number 5, number 6, I may take about an hour, or briefly at least a half an hour. - - -
The Deputy President: All right.
[The appellant]: - - - with the evidence. If today I'm not allowed to present the case, I will take 10 minutes.
The Deputy President:   Well, we don't need ‑ you don't need to present your - - -
[The appellant]: But I want to secure the opportunity to present my case.
The Deputy President: You don't need to present your case. It's because we're still trying to deal with whether we give you an extension of time. So we don't need to see all your evidence. I just want you to tell me if there is anything else you want me to know about complaints 4, 5, 6 and 7? Is there anything that you would like me to understand?
The appellant then proceeded to make further submissions, which related to him and his family being overseas when the Committee decision was delivered; the Committee failing to request Mr Jackson to provide any response to any of the complaints made against him and relying only on telephone conversations; the failure to get an apology from Mr Jackson; allegations that Mr Jackson provided misleading information to the Committee; and the alleged denial of natural justice to the appellant by the Committee (ts 6.3.2014 pgs 64 ‑ 65).
The following exchange then took place between the appellant and the Tribunal:
The Deputy President: All right, Dr Li, you're now moving into the areas of your unfair dismissal and the other issues before the Fair Work Australia. Mr Kalejs [the interpreter for the appellant], [the appellant] mentioned his evidence. The evidence before the Tribunal is in this book of documents that the committee provided. Does [the appellant] have further evidence or is - he talks of other evidence, so I'm not sure that we've seen anything else other than these. Could you just check with him that everything is in the book?
[The appellant]: Yes, your Honour. When I have a chance to present the case, all the evidence would be included in this evidence document. The only way - maybe a picture is not clear enough, same thing. I prepare the picture today here to classify the issue here. See, that's the only thing the - what they left on my door. They said my name is not on the document and this clearly is there. Also this is the hard copy on the document, the cover. They arguing they have not disclosed my name and my name is on.
The Deputy President: All right.
[The appellant]: They did not disclose which court because - and this is many email they obtain from my private email working box (indistinct) must be treated, even the court been treated in confidence. And then my neighbours - - -
The Deputy President: Dr Li, again I'm going to stop you because I have - I understand that particular point. I understand your case as far as that point is concerned and I know what the issues are. As I say, we've been sitting now for over two hours. I think - what I intend to do is to deliver a decision today, but I think everybody has just about had enough and I intend to give written reasons for the decision. That will give Dr Li an opportunity to read them and consider them rather than trying to understand through an interpreter. So what I intend to do is to deliver a decision on the question of an extension of time. I would like 15 minutes just to gather my thoughts about all of this, so I intend to come back at 12.30. Is that still convenient?
Whilst the Tribunal, at one late point in the hearing of the application to extend time, said that '[y]ou don't need to present your case', in context, the observation was to the effect that the application to extend time was not a full hearing de novo and that the appellant's submissions should be directed to the substance of the matters which demonstrated, on his case, that he had reasonable prospects of success if the application to extend time were granted. The Tribunal also made the observation in the context of the appellant digressing into unrelated issues, or issues that had already been discussed, and the appellant accepting that all the evidence was in the materials before the Committee which had been produced to the Tribunal in May 2013.
Moreover, it is evident that the appellant had repeated opportunities to address the merits of complaints 4 ‑ 7.
Insofar as it alleges that the Tribunal failed to take into account the appellant's prospects of success, that is incorrect. The Tribunal expressly took that into account and decided that the appellant had no reasonable prospect of success [95].
Contention (b) has no arguable merit.

Contention (c)

The appellant contends, in substance, that the Tribunal failed to exercise its review jurisdiction and instead sought to identify error in the Committee's reasons or merely copied the Committee's reasons.
Judge Sharp first summarised each complaint before the Committee, and the Committee's decision on each complaint. He then turned his own mind to the complaints, to determine whether the appellant's application for review of the Committee's decision would have any reasonable prospect of success [95]. Whilst from time to time the Tribunal in its written reasons said that it agreed with the Committee's conclusion, that does not signal a failure by the Tribunal to assess the prospects of success on the basis that if leave were granted the Tribunal would consider the matter afresh.
With respect to complaints 1 ‑ 3, his Honour plainly turned his own mind to the issues, and considered the relevant evidence to determine whether the Tribunal might make a finding of professional misconduct. For example, in relation to complaint 3, his Honour regarded the conduct of the Deputy President in the Fair Work proceedings as 'determinative' of the prospects of success of the complaint [100].
With respect to complaints 4 ‑ 7, Judge Sharp noted at [101], [102] that the complaints were unsubstantiated, and there was no further evidence or submissions provided by the appellant to the Tribunal on 6 March 2014 which would assist in this regard.

Contention (c) has no arguable merit.

Conclusion

Leave to appeal should be refused.