LOUREY -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2012] WASCA 112

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 112
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:141/2010	Heard:	19 MARCH 2012
Coram:	PULLIN JA BUSS JA MURPHY JA	Delivered:	29/05/12
No of pages:	35	Judgment Part:	1 of 1
Result:	Application for leave to appeal dismissed
Category:	B
PDF Version

Parties:	MICHAEL JOSEPH LOUREY LEGAL PROFESSION COMPLAINTS COMMITTEE
Catchwords:	Application for leave to appeal Question of law Discretionary decision Costs Reasons for decision Procedural fairness Relief
Legislation:	Legal Profession Act 2008 (WA), s 428(1), s 438(1), s 438(2) State Administrative Tribunal Act 2004 (WA), s 3, s 16, s 18, s 32, s 47, s 74, s 75, s 76, s 77, s 78, s 79, s 80, s 83, s 87, s 105
Case References:	Ambrus and Churches of Christ Homes and Community Services Incorporated [2006] WASAT 141 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262 Dodds v Kennedy [2011] WASCA 32 Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 General Steel Industries Inc v Commissioner of Railways (New South Wales) [1964] HCA 69; (1964) 112 CLR 125 Giretti v Commissioner of Taxation (1996) 70 FCR 151 Grace v Jeneka [2002] QCA 335 Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 Grygiel v Baine [No 2] [2005] NSWCA 434 House v The King [1936] HCA 40; (1936) 55 CLR 499 Knight v Secretary to the Department of Justice [2003] VSC 341 Laurent and Commissioner of Police [2009] WASAT 254 Lay v Alliswell Pty Ltd [2001] VSC 385; (2002) V ConvR 54-651 Lee v Minister for Immigration and Citizenship [2007] FCAFC 62; (2007) 159 FCR 181 Legal Profession Complaints Committee and Lourey [2010] WASAT 169 Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 Mallett v Mallett [1984] HCA 21; (1984) 156 CLR 605 Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 Motor Vehicle Industry Board and Dawson [2006] WASAT 8 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311 R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546 Re Chen and Chiropractors Registration Board of Victoria [2000] VCAT 1461 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 Stambulich v Ekamper [No 4] [2008] WASCA 189 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 Todarello Consolidated Investments Pty Ltd v Finch and Magistrates Court of Victoria [2007] VSC 492 Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492 Worrall v The Commercial Banking Company of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LOUREY -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2012] WASCA 112 CORAM : PULLIN JA

BUSS JA

MURPHY JA

HEARD : 19 MARCH 2012 DELIVERED : 29 MAY 2012 FILE NO/S : CACV 141 of 2010 BETWEEN : MICHAEL JOSEPH LOUREY

Appellant

AND

LEGAL PROFESSION COMPLAINTS COMMITTEE

Respondent

ON APPEAL FROM:

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Coram : JUDGE J ECKERT (DEPUTY PRESIDENT)

MR D R PARRY (SENIOR MEMBER)

MR J MANSVELD (MEMBER)

Citation : LEGAL PROFESSION COMPLAINTS COMMITTEE and LOUREY [2010] WASAT 169

File No : VR 171 of 2009

(Page 2)

Catchwords:

Application for leave to appeal - Question of law - Discretionary decision - Costs - Reasons for decision - Procedural fairness - Relief

Legislation:

Legal Profession Act 2008 (WA), s 428(1), s 438(1), s 438(2)

State Administrative Tribunal Act 2004 (WA), s 3, s 16, s 18, s 32, s 47, s 74, s 75, s 76, s 77, s 78, s 79, s 80, s 83, s 87, s 105

Result:

Application for leave to appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr M C Goldblatt

Respondent : Mr P D Quinlan SC

Solicitors:

Appellant : Chapmans

Respondent : Legal Profession Complaints Committee

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

Ambrus and Churches of Christ Homes and Community Services Incorporated [2006] WASAT 141
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262
Dodds v Kennedy [2011] WASCA 32
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
General Steel Industries Inc v Commissioner of Railways (New South Wales) [1964] HCA 69; (1964) 112 CLR 125

(Page 3)

Giretti v Commissioner of Taxation (1996) 70 FCR 151
Grace v Jeneka [2002] QCA 335
Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513
Grygiel v Baine [No 2] [2005] NSWCA 434
House v The King [1936] HCA 40; (1936) 55 CLR 499
Knight v Secretary to the Department of Justice [2003] VSC 341
Laurent and Commissioner of Police [2009] WASAT 254
Lay v Alliswell Pty Ltd [2001] VSC 385; (2002) V ConvR 54-651
Lee v Minister for Immigration and Citizenship [2007] FCAFC 62; (2007) 159 FCR 181
Legal Profession Complaints Committee and Lourey [2010] WASAT 169
Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513
Mallett v Mallett [1984] HCA 21; (1984) 156 CLR 605
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79
Motor Vehicle Industry Board and Dawson [2006] WASAT 8
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546
Re Chen and Chiropractors Registration Board of Victoria [2000] VCAT 1461
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212
Stambulich v Ekamper [No 4] [2008] WASCA 189
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
Todarello Consolidated Investments Pty Ltd v Finch and Magistrates Court of Victoria [2007] VSC 492
Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492
Worrall v The Commercial Banking Company of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28

(Page 4)

1 PULLIN JA: I agree with Murphy JA.

2 BUSS JA: The respondent (the Committee) filed an application in the original jurisdiction of the State Administrative Tribunal (the Tribunal) under s 428(1) of the Legal Profession Act 2008 (WA). In the application, the Committee sought a finding under s 438(1) of the Act that the appellant had engaged in unsatisfactory professional conduct in that he had failed to obtain, while acting for a client in a workers' compensation claim, any medical evidence dealing with the cause of the client's injury.

3 The Tribunal found that the appellant's failure to obtain this medical evidence reflected reasonable professional judgment. He had not engaged in unsatisfactory professional conduct. The Tribunal dismissed the Committee's application and ordered that there be no order as to costs. It published detailed written reasons for its decisions to dismiss the application and to make no order as to costs. See Legal Profession Complaints Committee and Lourey [2010] WASAT 169.

4 The appellant has applied to this court for leave to appeal against the Tribunal's decision to make no order as to costs. He contends, in substance, that the Tribunal should have awarded him costs.

The background facts and circumstances, the proceedings before the Tribunal, the reasons of the Tribunal and the grounds of appeal

5 The background facts and circumstances, the course of the proceedings before the Tribunal, the reasons for decision of the Tribunal and the grounds of appeal are set out in the reasons of Murphy JA (with which Pullin JA has expressed his agreement).

The obligation of the Tribunal to give reasons for decision: the appellant's contention

6 Before this court, counsel for the appellant submitted, in effect, that if the Tribunal makes a decision, whether a final decision or not, after it has reserved its decision, it must give reasons for the decision. Counsel argued that the Tribunal's obligation to give reasons in these circumstances is imposed by s 78 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act), read with s 32(1) and s 77 of that Act (appeal ts 77 - 78).

The obligation of the Tribunal to give reasons for decision

7 Section 3(1) of the SAT Act contains numerous definitions. These definitions apply unless the contrary intention appears. The terms

(Page 5)

'application', 'decision', 'enabling Act' and 'final decision' are defined as follows:

application

means -

(a) in the context of the Tribunal’s review jurisdiction -

(i) an application by an applicant for a review; or

(ii) a referral or other means of bringing a matter before the Tribunal by, or as sought by, an applicant;

(b) in any other context, a referral or other means of bringing a matter before the Tribunal by, or as sought by, an applicant;

decision of the Tribunal includes an order, direction, or determination of the Tribunal;

enabling Act means another Act, or a portion of another Act, under which jurisdiction is conferred on the Tribunal and, if relevant, it includes subsidiary legislation under that other Act;

final decision means a decision of the Tribunal that disposes of the matter raised in an application.

8 Division 2 of pt 3 of the SAT Act is concerned with the Tribunal's original jurisdiction. By s 16(1), in exercising its original jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the enabling Act.

9 Division 3 of pt 3 of the SAT Act is concerned with the Tribunal's review jurisdiction. By s 18(1), in exercising its review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the enabling Act.

10 Section 32(1) provides that the Tribunal is bound by the rules of natural justice, except to the extent that the SAT Act or the enabling Act authorises, whether expressly or by implication, a departure from those rules.

11 Division 4 of pt 4 of the SAT Act is concerned with decisions made by the Tribunal and the giving of reasons for its decisions.

12 Division 4 comprises s 73 - s 86. In div 4 a distinction is drawn between a 'decision' of the Tribunal (including a written decision), on the one hand, and 'reasons for decision' of the Tribunal (including written reasons for decision), on the other. Some provisions are concerned with

(Page 6)

'decisions', some provisions with 'reasons for decision', and some provisions with 'decisions' and 'reasons for decision'. For example:

(a) Section 74 deals with the form of a 'decision' of the Tribunal, and requires that the 'decision' be given in writing and authenticated in accordance with the Rules if the decision is a final decision (par (a)); or the Tribunal reserved the decision (par (b)); or the Rules state that the decision has to be given in writing (par (c)); or a party requests that the decision be given in writing (par (d)).

(b) Section 75 is concerned with the persons to whom the Tribunal must give a copy of any 'written decision' it gives in a proceeding.

(c) Section 80 requires that 'reasons for decision' be given in a way that is consistent with any confidentiality order made under s 61(2) and gives effect to any obligation under s 160.

(d) Section 83 empowers the Tribunal, in certain specified circumstances, to correct 'a decision it gives' or 'a statement of the reasons it has given for its decision'.

13 The provisions of div 4 which are directly relevant to the Tribunal's obligation to give reasons for its decisions are these:

76. Time limit for reserved decision

If the Tribunal reserves its decision in any proceeding, whether or not it is a final decision, it is to give its decision and the reasons for the decision within the period of 90 days after the day on which it reserved its decision or within an extension of that period given by the President.

77. Reasons for final decision

(1) The Tribunal is to give its reasons for a final decision.

(2) Reasons that the Tribunal gives for a final decision have to include the Tribunal’s findings on material questions of fact, referring to the evidence or other material on which those findings are based.

78. Written reasons may be requested

(1) If the Tribunal makes a decision, whether or not a final decision, without having reserved its decision and does not give its reasons for the decision in writing, a party may, within the period of 28 days after the day on which the

(Page 7)

decision is given, request that the Tribunal give its reasons in writing.

(2) The Tribunal is to give written reasons that a party requests under subsection (1) within the period of 90 days after the day on which it receives the request or within an extension of that period given by the President.

79. Written decision or reasons using transcript

A written transcript of the part of the proceeding in which a decision is given orally or reasons are given orally is sufficient for a provision of this Act that requires the decision or reasons to be in writing.

14 By s 76, if the Tribunal reserves any decision, whether a final decision or not, it must, in general, give 'its decision and the reasons for the decision' within 90 days after the decision was reserved (emphasis added). So, if the Tribunal reserves any decision, s 76 in effect imposes on the Tribunal an obligation to give not only its decision, but also reasons for its decision, within the stipulated period.

15 By s 77(1), the Tribunal must give reasons for a final decision and, by s 77(2), those reasons must include the Tribunal's findings on material questions of fact and must refer to the evidence or other material on which those findings are based.

16 By s 78(1), if the Tribunal makes any decision, whether a final decision or not, without reserving the decision, and the Tribunal does not give its reasons for the decision in writing, a party may, within 28 days after the decision is given, request the Tribunal to give its reasons in writing. By s 78(2), if a party makes a request in accordance with s 78(1), the Tribunal must, in general, give written reasons within 90 days after receiving the request.

17 Section 79 provides that a written transcript of the part of the proceedings in which reasons are given orally is sufficient for a provision of the SAT Act that requires reasons to be in writing.

18 It is readily apparent, when s 76, s 77, s 78 and s 79 are read and construed together, and in the context of the SAT Act as a whole, that if the Tribunal makes a decision, whether a final decision or not, after it has reserved the decision, it must give reasons for the decision.

(Page 8)

Grounds 2 and 2A

19 I agree with Murphy JA, for the reasons he gives at [62] - [76] below, that grounds 2 and 2A are without merit.

Grounds 1A and 1B

20 I agree with Murphy JA, for the reasons he gives at [92]- [102] below, that grounds 1A and 1B are without merit.

Ground 2

21 I agree with Murphy JA, for the reasons he gives at [104] below, that ground 2 is without merit.

Ground 1

22 I agree with Murphy JA, for the reasons he gives at [106] - [124] below, in relation to ground 1.

Conclusion

23 The Tribunal did not err on a question of law as alleged in the grounds of appeal. Even if the Tribunal made an error on a question of law, as alleged in ground 1, it is not in the interests of justice to grant leave to appeal on that ground.

24 I would refuse leave to appeal on each of the grounds. The application for leave to appeal should be dismissed.

MURPHY JA

Introduction

25 The appellant is a solicitor. He seeks leave to appeal against a decision of the State Administrative Tribunal (the Tribunal), dated 24 November 2010: Legal Profession Complaints Committee and Lourey [2010] WASAT 169. The Tribunal's decision concerned an application brought by the respondent (the Committee) against the appellant (the practitioner) for an order to the effect that the practitioner had engaged in unsatisfactory professional conduct under s 438(1) of the Legal Profession Act2008 (WA) and for consequential orders under s 438(2) of that Act.

26 The Tribunal dismissed the Committee's application against the practitioner and ordered that there be no order as to costs. In substance,

(Page 9)

the practitioner's principal complaint in this court is that the Tribunal did not award him costs.

Leave to appeal - principles

27 Both parties accept that leave to appeal is required under s 105(1) of the State Administrative Tribunal Act2004 (WA) (the SAT Act), and that an appeal can only be brought on a question of law: s 105(2) of the SAT Act. An appeal on a question of law is in the nature of judicial review proceedings; the existence of a question of law is not merely a qualifying condition for, or a gateway to, an appeal, but is the subject of the appeal itself. An appeal on a question of law does not, and should not, open the door to an appeal by way of rehearing. See Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [18], [20] - [21]; Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262 [43] - [44].

28 Principles concerning leave to appeal in this context were stated in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361. For present purposes, the following principles may be extracted from Paridis:

(a) leave should be granted, if, in all the circumstances, it is in the interests of justice that there be a grant of leave;

(b) although not rigid or exhaustive, the following guidelines are relevant;

(i) 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;

(ii) the importance of the question of law, either generally, or to the proposed appellant in a particular case, will probably be relevant;

(iii) the applicant must show that there is a real or significant argument to be put on the question of law, at least to this extent: that there is sufficient doubt about it to justify the grant of leave; and

(iv) it may be necessary to show 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.

(Page 10)

(d) a question of mixed law and fact is not a question of law within s 105(2);

(e) a ground of appeal which alleges that a decision is against the evidence and the weight of evidence does not raise a question of law;

(f) the Tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis;

(g) a ground of appeal that a Tribunal had failed to take into account a consideration which, in the circumstances, it was bound to take into account, alleges an error of law; however, it is not sufficient if the consideration is merely one that may properly be taken into account, or that many persons might have taken into account;

(h) there is a distinction between failing to take into account relevant considerations which a tribunal is obliged to take into account, on the one hand, and failing to take into account a particular piece of evidence, on the other; and

(i) the question of whether a discretionary decision is manifestly unreasonable in the sense that it is so unreasonable that no reasonable person could have come to it, is a question of law.

29 The factors a tribunal is 'bound' to consider in making a decision are determined by a construction of the statute conferring the discretion. If the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he or she is bound to do so is to be found in the subject matter, scope and purpose of the statute: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 - 40.

30 In proceedings for judicial review (and hence in an appeal of the kind under consideration), generally the weight to be given to a relevant consideration is for the decision-maker to determine; however, a failure to give adequate weight to a matter of great importance, or the giving of excessive weight to a matter of no real importance, may signify that the discretionary decision is 'manifestly unreasonable' in the sense that it is so unreasonable that no reasonable person could ever have come to it:

(Page 11)

Minister for Aboriginal Affairs v Peko-Wallsend Ltd

(41) per Mason J, citing

Associated Provincial Picture Houses Ltd v Wednesbury Corporation

[1948] 1 KB 223, 230. In this respect, there is an analogy between judicial review of administrative action and appellate review of a judicial discretion:

Minister for Aboriginal Affairs v Peko-Wallsend Ltd

(42). An appellate court will not interfere with an exercise of judicial discretion on the basis of a failure to give adequate weight to relevant considerations unless it can be shown that the failure really amounts to a failure to exercise the discretion actually entrusted to the court:

Gronow v Gronow

[1979] HCA 63; (1979) 144 CLR 513, 534 - 535;

Mallett v Mallett

[1984] HCA 21; (1984) 156 CLR 605, 614;

Lovell v Lovell

[1950] HCA 52; (1950) 81 CLR 513, 519;

Monteleone v The Owners of the Old Soap Factory

[2007] WASCA 79 [36];

Dodds v Kennedy

[2011] WASCA 32 [4]. The analogy serves to illustrate that 'a court should proceed with caution ... lest it exceed its supervisory role by reviewing the decision on its merits':

Minister for Aboriginal Affairs v Peko-Wallsend Ltd

(42). See also [102] below.

31 A discretionary decision will be so unreasonable that no reasonable person could have come to it if there is 'something overwhelming' such that the conclusion is one to which no reasonable body could have come: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 [44]. Also, a decision that no reasonable person could have come to is so unreasonable if 'it might almost be described as being done in bad faith' or if it is 'so absurd that no sensible person could ever dream that it lay within the powers of the [Tribunal]': Wednesbury (229), cited with approval in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 [30].

Background and the proceedings before the Tribunal

32 The subject matter of the proceedings before the Tribunal concerned the practitioner's conduct in acting for a client who sought workers' compensation in respect of an injury allegedly suffered at work on 1 December 2006.

The client's workers' compensation claim

33 The client alleged that he slipped and injured his knee whilst working as a cleaner in the kitchen on an oil rig. He alleged that when he was replacing a bin liner in the kitchen, he put his left foot forward whilst bending down and in so doing, his left foot slipped on some wet residue

(Page 12)

on the floor, This allegedly caused his foot to twist as he was bending his knee, thereby producing a sharp pain in his knee.

34 On 23 December 2006, the client lodged a claim for workers' compensation. The employer's insurer disputed liability on 30 January 2007, claiming that there was insufficient evidence of a work-related disability.

35 On 15 February 2007, the client lodged an application with WorkCover Western Australia, seeking an order that the employer make weekly payments of compensation. On 16 February 2007, a union organisation wrote to the client advising that it would arrange legal representation for him, and said:

In the event that you wish to pursue the issue of the insurer's failure to accept your claim for your left knee, any sooner than the above date,

please provide written instructions to obtain a report from a doctor

specialist of your

choice who can confirm that your knee injury was related to your employment

This report would be crucial normally for you to succeed

with any Workcover application. (emphasis added)

36 On or about 26 March 2007, the client retained (through the union organisation) the firm of which the practitioner was an employee to act for him in respect of the injury, and to represent him in respect of the application to WorkCover. The practitioner had the conduct of the claim on behalf of the client.

37 On 16 April 2007, an arbitrator in the Dispute Resolution Directorate held a telephone conference with the parties and their representatives. The practitioner's note of the conference recorded that the dispute related to 'causation' only and that the employer was saying, in effect, 'He's lying'.

38 On 9 August 2007, the claim was heard by the arbitrator and the client was represented by the practitioner at the hearing. The arbitrator published her reasons for decision on 3 December 2007. She dismissed the client's application. The arbitrator's reasons indicate the following.

39 At the hearing, the client gave evidence. The client's supervisor, to whom the client had ultimately reported his injury, was also called. The supervisor's evidence was to the effect that, on 1 December 2006, he was in the kitchen, standing around the corner about 10 m away from where the client alleged that the accident had occurred. The supervisor said that he recognised the client's voice and he heard the noise of the rubbish bin and then heard the client say, 'Oh'. When he saw the client, he was at the bin and was rubbing his knee. The supervisor said that he did not ask

(Page 13)

what had happened and the client did not volunteer anything. The supervisor concluded that it was nothing severe. Several days later, the client returned and told the supervisor that he had injured his knee in the kitchen and reminded him of the episode. The supervisor could not recall whether the client was experiencing any difficulties, but he did not see the client hobbling. According to the arbitrator, the supervisor 'remarked that he had been suspicious of whether the injury was genuine. He said that he was sceptical'.

40 The arbitrator took an adverse view of the client's demeanour and said that she was not prepared to accept him as 'an absolute witness of truth'. The arbitrator said, in effect, that she accepted the witnesses of fact called by the employer concerning their communications with, and observations of, the client in late 2006, which cast doubt on the veracity of the client's account of the accident.

41 In particular, the arbitrator was impressed by the evidence of a female companion and co-worker of the client, who in a statutory declaration filed by the employer, in effect, gave evidence of alleged admissions by the client. As recorded in the employer's Reply in the workers' compensation proceedings, she stated, in effect, that the client had told her some two weeks earlier, on 21 November 2006, that 'he had a sore left knee, was not sure how it occurred, other than that there was NO accident or incident and that he had just "woken up with it"' (see Tribunal's reasons [22] and [24.13]).

42 The arbitrator also recorded the following in her reasons:

18.

There are no issues with respect to the nature of the injury

. There was a tear to the medial meniscus, which has been repaired by surgery. The worker has now returned to work.

...

24. The applicant contends that the accident occurred in the terms described by him in the kitchen. The circumstances were corroborated to the extent he says they were by the evidence of Mr van Veen.

...

26. The respondent submitted that the applicant probably sustained the injury to his knee during the R&R period prior to the 21 November 2006. That view was based on the fact that as soon as he arrived at work on the 21 November 2006 he complained to his work mate [the female companion] about pain in his left knee.

(Page 14)

...

32. The respondent said the applicant did have knee pathology that required surgery and he had that surgery. As to when and in what manner he sustained that pathology the applicant bears the onus of proof.

33. The medical reports do not deal with how or when the injury occurred. They only recite what the applicant has told them. They accept what the applicant has said. The respondent submitted that no corroborative evidence has been brought to support that themedial meniscusinjury happened on the 1 December 2006 in the course of his employment with the respondent. (emphasis added)

43 The arbitrator concluded:

I am not satisfied on the evidence before me that the applicant has discharged the onus upon him to produce evidence to establish on the balance of probabilities that the injury occurred in the manner described by him, and that he suffered an injury to his knee arising out of or in the course of his employment. The

medical evidence supports a conclusion that the applicant suffered a medial meniscus injury to his knee, but does not take it any further. There is no medical evidence to say whether the injury sustained by the applicant is consistent with the accident described to have taken place in the kitchen on 1 December 2006

. I have found that the applicant was experiencing pain in his knee on the first day of his return to work and was taking anti-inflammatory medication. He continued to work out in the gym and further he continued to carry out his duties without complaint or without any visible restriction after the alleged episode in the kitchen on 1 December 2006.

For the above reasons I am not satisfied on the balance of probabilities that the applicant sustained the injury to the left knee whilst in the course of removing and replacing the bin liner on the 1 December 2006. I would not find that the medial meniscus injury to the left knee arose out of or in the course of the applicant's employment. (emphasis added)

The complaint to the Committee and the proceedings before the Tribunal

44 After the dismissal of his application, the client made a complaint to the Committee alleging (relevantly for present purposes) that in the workers' compensation proceedings, the practitioner had failed or neglected to seek or obtain any medical evidence to the effect that the nature and extent of his injury was consistent with it having been suffered in the manner alleged by him.

45 On 12 October 2009, the Committee filed an application in the Tribunal alleging that the practitioner's conduct, in failing to seek or obtain such evidence, fell short of the standard of competence and

(Page 15)

diligence that a member of the public was entitled to expect of a reasonably competent practitioner. The Committee filed its statement of facts and contentions and the practitioner filed a substantive response on 3 November 2009.

46 Each party instructed an 'expert' to give evidence and expert reports were exchanged.

47 The practitioner's expert was a barrister of considerable experience in personal injury claims. The Committee's expert was a legal practitioner who, whilst only having been admitted to practice for one and a half years, had acted in workers' compensation cases under the Workers' Compensation and Injury Management Act 1981 (WA) since 1998, initially as a lay advocate and then as a Registered Agent.

48 Each party acknowledged the expertise of the other, and the parties' experts prepared a joint expert witness statement prior to the hearing which concluded in these terms:

[The practitioner's expert] accepts that the practitioner's conduct

might

, at best, rise to the level of an error of judgment but does not fail to rise to the level asserted by the Applicant Committee. [The Committee's expert] accepts that the practitioner's conduct can be described as an error of judgment but it also rises to a level of conduct outside the standard of a reasonably competent and diligent legal practitioner. (original emphasis)

49 At the commencement of the hearing, the practitioner raised, at the outset, a 'strike-out application' which had evidently been the subject of prior written submissions. The presiding judge said, in response:

Now, we are of a view, having read your submissions - I have had a good look at quite a few of the cases in the Tribunal again, ... that probably there is still some factual basis that would underlie us reaching the conclusions you asked us to reach in the strike-out application and on that basis we are of the view that we should just proceed, have the day today, get the matter heard and deal with your application at the end, so to speak.

50 The practitioner (by his senior counsel) said, in effect, that he was content with that course.

51 The Tribunal then received into evidence the documentary evidence relied on by the Committee and the practitioner (ts 6).

52 The Committee then called the client as its only witness of fact. After that evidence, the practitioner's senior counsel again raised the prospect of making an application to dismiss the proceedings, prior to the

(Page 16)

practitioner being called to give evidence and after the expert evidence had been called (ts 34 - 35). There followed a short adjournment, after which the practitioner raised the matter again. He said that he was renewing his s 47 application before the experts gave their evidence. There then occurred the following exchange between the practitioner's counsel and the presiding judge:

[Judge]: I mean, we will hear from [counsel for the Committee], but didn't your client acknowledge in his notes causation was an issue? How do you address that? That's why we would like to hear from your client.

[Counsel for the practitioner]: Yes, okay, your Honour, if I can just take a minute. Your Honour, I think on that basis then there's no point in pursuing the s 47 application if that's the Tribunal's view because the only way that you will hear that evidence is if [the practitioner] gives evidence.

[Judge]: At this point we would like to hear that evidence and then we will know if it's a live issue.

[Counsel for the practitioner]: There we are.

53 The practitioner then gave his evidence, following which the experts gave their oral evidence jointly.

54 At the end of the oral evidence, the Tribunal directed, with the parties' concurrence, that closing submissions should be in written form.

55 I would add here, parenthetically, that although each party instructed an 'expert' and the case was fought with reference to the expert evidence, and the Tribunal referred to the expert evidence in considerable detail in its reasons ([36] - [40], [44], [46]), it is difficult to see why the parties thought it necessary to adduce expert evidence in a case such as this.

The Committee's reasons on the substantive application

56 On 24 November 2010, the Tribunal delivered reasons for judgment in which it said that it would dismiss the Committee's application and order that there be no order as to costs. The Tribunal said that it preferred the evidence of the practitioner's expert witness over the evidence of the Committee's expert witness: [40]. Two reasons were given. One was that the practitioner's expert had 'considerably greater experience' than the Committee's expert. The other was that the practitioner's expert evidence confirmed that the 'key' issue in the workers' compensation proceedings was 'when' the injury was sustained, in particular, whether it was suffered at work on the oil rig on 1 December 2006, not 'how' the injury was sustained. The Tribunal found that the appellant had a sound

(Page 17)

understanding of the workers' compensation proceedings generally, and of the forensic contest of the client's claim before the arbitrator in particular. The Tribunal said that evidence in relation to causation 'would have been relevant', but 'could not have reasonably altered the result in the proceeding'. The Tribunal said that at its highest, medical evidence to the effect that the nature and extent of the injury was consistent with it having been suffered in the manner described by the client, would have been equivocal in relation to the 'key' issue in dispute. Further, the Tribunal noted that such medical evidence would have been equally consistent with the injury having been suffered by the client while changing a bin liner in his kitchen at home. The Tribunal also said that the client's claim failed fundamentally because he was not believed, and because the arbitrator accepted, in particular, the evidence of the female companion. (See Tribunal's reasons [4], [11], [41] - [45].)

57 It is not entirely clear from the Tribunal's reasons why it found that medical evidence on causation could not reasonably have altered the result in the proceedings. Causation was an issue. As the Tribunal accepted, evidence on causation was relevant. The female companion's evidence was that the client had admitted that there was no accident or incident and that he had just 'woken up' one morning with the pain on or prior to 21 November 2006. It would be expected that medical evidence to the effect that the client's injury was consistent with it having been suffered as the result of an accident as alleged by the client would be taken into account by the arbitrator in her assessment of the client's evidence as to the explanation for the injury, and in her assessment of the reliability of the female companion's evidence as to the alleged admission by the client. Similarly, the Tribunal's finding that any medical evidence on causation would have been equally consistent with the client having injured himself whilst changing a bin liner in his own kitchen, does not appear to address the point that the alleged admission was that the injury had occurred on or prior to 21 November 2006 without any accident or incident at all.

58 In any event, it is clear from the Tribunal's reasons that its acceptance of the practitioner's expert evidence (reasons [40], [44]), its rejection of the Committee's expert evidence (reasons [46]), and its acceptance of the practitioner's evidence as to his understanding of the issues in the workers' compensation proceedings (reasons [41] - [42]), all contributed to its conclusion that the Committee had not established its case. The Tribunal did not state in terms, nor could it be said that it found by necessary implication, that it would, in any event, have dismissed the Committee's application, without having heard the case and the evidence

(Page 18)

presented by the practitioner. Indeed, it is evident from the exchanges referred to in [49] and [52] above that the Tribunal regarded the allegations by the Committee, and the evidence tendered, as calling for an explanation by the practitioner. Further, the Tribunal found, in effect, that the proceedings were not frivolous, not vexatious, not misconceived, not lacking in substance, not brought for an improper purpose and were not an abuse of process (reasons [51] - [52]).

The Committee's reasons on costs

59 The Tribunal said at [53]:

The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in vocational regulatory proceedings is that, ordinarily, unless it can be demonstrated that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs will not be awarded against the vocational regulatory body:

Motor Vehicle Industry Board and Dawson

(2006) 41 SR (WA) 343; [2006] WASAT 8 (

Motor Vehicle Industry Board and Dawson

) at [47], referred to with approval in

Paridis v Settlement Agents' Supervisory Board

[2007] WASCA 97 at [36];

Medical Board of Western Australia and Aung Tin Kyi

[2009] WASAT 22 at [71]. This is because, otherwise, 'vocational regulatory bodies may well feel inhibited in commencing proceedings that should be commenced and maintained in the public interest even though "success" cannot be guaranteed':

Motor Vehicle Industry Board and Dawson

at [47]. There appears to be no reason in this case to depart from the Tribunal's established practice in relation to costs in vocational regulatory proceedings. Accordingly, each party should bear its own costs of the proceeding.

60 Orders were then made, without a further hearing, in the following terms by the Tribunal on 24 November 2010:

1. The application is dismissed.

2. There is no order as to costs.

Grounds of appeal

61 In the grounds in support of the application for leave to appeal, the practitioner contended, in substance, that:

(a) the Tribunal erred in law in finding that the proceedings by the Committee were not misconceived and not lacking in substance within the meaning of s 47(1) of the SAT Act (ground 2);

(Page 19)

(b) the Tribunal erred in law in not giving adequate reasons for its findings that the proceedings were not frivolous, not vexatious, not misconceived, not lacking in substance, not brought for an improper purpose and were not an abuse of process under s 47(1) of the SAT Act (ground 2A);

(c) the Tribunal erred in law in not exercising its discretion under s 87(2) of the SAT Act to order the Committee to pay the practitioner's costs (grounds 1A and1B);

(d) the Tribunal erred in law in not giving adequate reasons for its decision not to award costs to the practitioner (ground 3); and

(e) the Tribunal erred in law in that it denied the practitioner procedural fairness by not hearing him on costs (ground 1).

62 At the hearing of this appeal, the practitioner appeared (ts 21), in effect, to retreat from his reliance on grounds 2 and 2A. Section 47 of the SAT Act, nevertheless, formed the backdrop to his submissions on the grounds of appeal concerning the order as to costs. It is convenient to address s 47 at the outset, and to record why the practitioner's grounds with respect to s 47 would not succeed.

Section 47 of the SAT Act

63 Section 47 of the SAT Act provides:

47. Frivolous etc. proceedings, dismissal of etc

(1) This section applies if the Tribunal believes that a proceeding -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(b) is being used for an improper purpose; or

(2) If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.

(3) The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member.

(4) The Tribunal may act under subsection (2) on the application of a party or on its own initiative.

(Page 20)

64 Section 47 appears within div 2 of pt 4 of the SAT Act. Part 4 is entitled 'Tribunal's procedures'. Division 2 of pt 4 is entitled 'Preliminary procedures'. Division 3 of pt 4 is headed 'Proceedings and hearings'.

65 It is evident from the subject matter of s 47 and its position within the SAT Act, that it provides a summary procedure for the striking-out or dismissal of proceedings prior to a final hearing. In Ambrus and Churches of Christ Homes and Community Services Incorporated [2006] WASAT 141, Chaney DCJ (as his Honour then was) said [8]:

[T]he principle to be applied in an application such as this is at least analogous to the principle explained by Barwick CJ in

General Steel Industries Inc v Commissioner of Railways (NSW)

(1964) 112 CLR 125 which requires that, in order to strike out a proceeding, it should be demonstrated that it is so obviously untenable that it cannot possibly succeed or is manifestly groundless or that it discloses a case which the court is satisfied cannot succeed. So it is against a requirement to make that finding that I consider the issues that have been brought up this morning.

66 See also Laurent and Commissioner of Police [2009] WASAT 254 [20] - [23] per Pritchard DCJ (as her Honour then was).

67 Similarly, in Lay v Alliswell Pty Ltd [2001] VSC 385; (2002) V ConvR 54-651, Balmford J stated that the test to apply in determining an application under the analogous statutory provision in Victoria (s 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic)) was set out by the High Court in Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99, namely, 'the power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried'. Her Honour also referred, as Chaney DCJ did in Ambrus, to the observations of Barwick CJ in General Steel Industries Inc v Commissioner of Railways (New South Wales) [1964] HCA 69; (1964) 112 CLR 125, 128 - 130.

68 In Knight v Secretary to the Department of Justice [2003] VSC 341 [23], Kellam J stated, in the analogous Victorian context, that it was 'beyond argument' that a proceeding ought not be dismissed or struck out if the ultimate fate of the proceeding depended upon contested questions of fact that would be established or illuminated by oral evidence or cross-examination.

69 It is unnecessary, for the purposes of this case, to determine the full scope of the power under s 47 and its potential application (if any) to

(Page 21)

proceedings which have gone to a final hearing (cf

Laurent v Commissioner

[19]). It is sufficient to observe that, at least generally speaking, the circumstances would be unusual for any such power to be utilised as the basis for a dismissal following a final hearing at which the respondent had called evidence, closed his or her case, and made closing submissions.

70 By s 16 of the SAT Act, in exercising its original jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the enabling Act. In this matter, the Committee's application was dismissed after a full hearing before the Tribunal conducted in accordance with div 3 of pt 4 of the SAT Act.

71 Even if the power under s 47(2) remained exercisable following the final hearing in this case, there was no conceivable error in the Tribunal not striking out, or dismissing, the proceedings under s 47(2). The Tribunal's decision to dismiss the proceedings without relying upon s 47(2) as a source of power was an entirely orthodox approach.

72 The practitioner does not contend that the Tribunal's findings that the proceedings were not misconceived and not lacking in substance were made against the weight of the evidence. That submission would not, in any event, raise a question of law. Nor does he contend that there was no evidence to support those findings. Had that contention been made, it would have raised a question of law, but such a contention would have no merit in light of the background matters referred to in [32] - [43] above. Rather, the practitioner contends that on the proper construction of the Tribunal's reasons, the Tribunal made findings on the basis of which it was not open to the Tribunal to infer that the proceedings were not misconceived and did not lack substance.

73 In this regard the practitioner places heavy reliance on findings to the effect that the practitioner had demonstrated a sound understanding of the forensic issues, including the evidentiary issues, in the workers' compensation proceedings. It is said, in effect, that the Tribunal should have recognised that the necessary corollary of these findings is that the Committee had no reasonable basis for ever contending for a contrary view from the one adopted by the Tribunal, and that, accordingly, the Tribunal's findings at [52] were not open to it.

74 I am unable to accept the practitioner's submissions. The Tribunal's reasons are to be read as a whole and understood in the forensic context in which the proceedings before the Tribunal were conducted.

(Page 22)

75 The findings of fact relied upon were all made having regard to an assessment of the expert evidence led by the practitioner and the evidence given by the practitioner himself. As observed earlier in these reasons, the Tribunal did not expressly state, nor did it impliedly find, that the Committee's application could properly have been dismissed without hearing the evidence adduced by and on behalf of the practitioner. Also, the practitioner conducted the proceedings on the basis that they could not be summarily dismissed. In these circumstances, it was clearly open to the Tribunal to conclude that the proceedings were not an abuse of process, or frivolous, vexatious, misconceived or lacking in substance.

76 It is evident from the exchanges referred to earlier that the Tribunal regarded the practitioner as having a case to answer, that the Committee's application could not be dealt with summarily, and that senior counsel for the practitioner, despite raising the issue of the s 47 application, did not press for a disposition of the Committee's application prior to the practitioner presenting his case. In that context, given that the Tribunal took into account the evidence of the practitioner and said in its reasons that it preferred the evidence of the practitioner's expert over the Committee's expert, it was sufficient for the Tribunal to record that none of the criteria in s 47(1) applied to the proceedings brought by the Committee.

77 Insofar as grounds 2 and 2A were pursued, in my view, there is no merit in them.

Disposition - Costs grounds

Section 87, the relevant principles and the question of the provision of reasons

78 Section 87(1) and (2) of the SAT Act provide:

87. Costs of parties and others

(1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.

(2) Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.

79 Section 87 does not expressly mandate any considerations which the Tribunal is bound to take into account under s 87(2) in respect of costs in
(Page 23)

proceedings in the Tribunal's original jurisdiction. Section 87(4) does, however, contain mandatory considerations to be taken into account in relation to costs in the Tribunal's review jurisdiction. Section 87(4) provides:

(4) Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal

is to have regard to

(a) whether the party (in bringing or conducting the proceeding before the decision-maker in which the decision under review was made) genuinely attempted to enable and assist the decision-maker to make a decision on its merits;

(b) whether the party (being the decision-maker) genuinely attempted to make a decision on its merits. (emphasis added)

80 It is to be recalled that these proceedings were in the original jurisdiction.

81 The general considerations relevant to the award of costs in disciplinary proceedings in the Tribunal were outlined by Barker J in Motor Vehicle Industry Board and Dawson [2006] WASAT 8 [43], [47] - [48]:

So far as the general question of costs is concerned, s 87(1) of the SAT Act provides the starting out rule that parties to proceedings should bear their own costs in the absence of an order of the Tribunal to the contrary. However, s 87(2) gives the Tribunal the discretion to order the payment by a party of all or any of the costs of another party.

...

The decision in the Roberman case does not support the view that [a successful respondent] in such proceedings is entitled to an award of costs for the portion of the proceedings in which they were successful. If this approach were to be adopted, vocational regulatory bodies may well feel inhibited in commencing proceedings that should be commenced and maintained in the public interest even though 'success' cannot be guaranteed. Consequently, the Tribunal considers that, ordinarily, unless it can be demonstrated that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs should not be awarded against a vocational regulatory body simply because the application was not successful.

(Page 24)

Of course, in every case the Tribunal retains the discretion under s 87(2) of the SAT Act to order costs in the circumstances of the case.

82 Barker J's observations in Motor Vehicle Industry Board and Dawson at [47] as to what would 'ordinarily' be the position were cited with approval by this court in Paridis at [36].

83 The Victorian decision of Re Chen and Chiropractors Registration Board of Victoria [2000] VCAT 1461, dealing with a broadly analogous (but more prescriptive) legislative provision in Victoria, provides an example of where costs have been ordered against a vocational body, notwithstanding that the vocational body had proceeded in good faith and on reasonable grounds. In that case, the regulatory body was ordered to pay certain costs arising from an adjournment which was, in effect, unnecessarily caused by the regulatory body's conduct of the proceedings (see at [41] - [43]).

84 Provisions in the nature of s 87(1) and s 87(2) of the SAT Act do not, of themselves, require the Tribunal to specify the circumstances justifying the making of the order as to costs: see Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311, 315, dealing with a similar statutory provision (albeit in family law legislation).

85 Also, in Penfold v Penfold (315 - 316), Stephen, Mason, Aicken and Wilson JJ said (315 - 316):

Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (

Kent v Kent

(1970) 92 WN (NSW) 503 at 505). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.

86 Moreover, where the costs order is one which would be regarded as the conventional or usual order on the findings and in the circumstances of the case, the reasons for making the costs order may be 'obvious' without express articulation: see Todarello Consolidated Investments Pty Ltd v Finch and Magistrates Court of Victoria [2007] VSC 492 [50]; cf Grace v Jeneka [2002] QCA 335, 6 in which Atkinson J (with whom McMurdo P and Jerrard JA agreed) said:
(Page 25)

It is, however,

desirable

for a judge to

set out clearly the considerations

which have been taken into account

if an order is made other than the usual costs order.

(emphasis added)

87 Whilst s 77(1) of the SAT Act requires the Tribunal to provide reasons in relation to a 'final decision', the parties in this appeal accepted, correctly in my view, that a costs decision is not a 'final decision' as defined in s 3 of the SAT Act for the purposes of s 77(1). Nor did the practitioner contend that s 32(1), which provides that the Tribunal is bound by the rules of natural justice, is itself sufficient to supply an obligation to provide reasons on a costs decision.

88 Rather, the practitioner argued, in effect, that any reserved decision, whether 'final' or not, is required to be the subject of reasons by the Tribunal, and that this requirement is derived by necessary intendment from s 78 of the SAT Act read in the context of s 32(1) and s 77 of the SAT Act (ts 78). Necessary intendment means that the force of the language in its surroundings carries such strength of impression in one direction, that to entertain the opposite view appears to be wholly unreasonable: Worrall v The Commercial Banking Company of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28, 32.

89 Section 78(1) provides that if the Tribunal makes a decision, whether or not a final decision, without having reserved its decision and does not give its reasons for the decision in writing, a party may, within 28 days, request that the Tribunal give its reasons in writing. Section 78(2) requires the Tribunal to provide written reasons within a stipulated time upon receipt of such a request.

90 As presently advised, I am not persuaded that s 78 operates by necessary intendment to require every reserved non-final decision, including, relevantly, a decision on a question of costs, to be the subject of reasons. First, s 78 relates to requests for written reasons. It operates upon oral reasons previously given, rather than by imposing an obligation to provide reasons. Secondly, s 78 expressly relates to decisions which have not been reserved. There would seem to be little scope for it impliedly to operate upon reserved decisions.

91 Although not argued by the appellant, it may be that s 76, at least when it is read with s 74(b) of the SAT Act, is the source of an obligation to provide reasons for non-final reserved decisions. It is, however, unnecessary to form a final view on the matter in light of the conclusion which I have reached (referred to in [104] below), that adequate reasons were provided by the Tribunal in any event.

(Page 26)

Grounds 1A and 1B - alleged errors in failing to exercise the discretion to award costs

92 The practitioner's contention that the Tribunal failed to exercise its discretion in relation to costs was, in substance, advanced on four bases:

(a) the Tribunal had fettered its discretion by acting on the basis that it was 'bound' to make no order of costs unless the Committee had acted in bad faith or had brought the proceedings without any reasonable basis;

(b) the Tribunal failed to take into account mandatory relevant considerations;

(c) the Tribunal made a decision which was so unreasonable that no reasonable tribunal could have made it in the circumstances; and

(d) error is to be inferred from the decision reached, having regard to the principles applicable to the appellate review of discretionary judgments.

93 In support of the second, third and fourth submissions, the practitioner set out, in the proposed grounds of appeal, lengthy particulars which were an assortment of allegations of fact (including assertions in relation to the qualifications of the Committee's expert), allegations of mixed fact and law, and aspects of certain findings referred to in [56] above, made by the Tribunal. The practitioner also alleged, in effect, that the Tribunal failed to consider whether there was a reasonable basis for the Committee to commence the proceedings in light of the particularised matters, and whether the proceedings were properly brought and maintainable in the public interest. In substance, the submissions converged on the central proposition that the proceedings lacked any reasonable basis or were misconceived or were lacking in substance, for the purposes of determining an appropriate costs order. The practitioner did not suggest that there was any material difference between proceedings which lacked substance or which were misconceived on the one hand, and proceedings which were commenced without a reasonable basis on the other. The expression used by the practitioner in this application for leave to appeal, which encapsulated his submission that the proceedings lacked a reasonable basis, were misconceived and lacked substance, was that the proceedings were 'doomed to fail'. As counsel for the practitioner said (ts 32), 'My fundamental submission is that the [Committee's] application was doomed to fail. It could not succeed'.

(Page 27)

94 I will deal with the submissions in turn.

95 As to the first submission, the practitioner submitted, in effect, that the Tribunal had evidently misdirected itself as to the relevant principles by failing to record, at [53] of its reasons, that it had a wide discretion to order costs, having regard to the particular circumstances of the case in question.

96 I am unable to accept the practitioner's submission to the effect that the Tribunal fettered its discretion. The Tribunal at [53] noted, expressly, that it had a discretion under s 87(2). The Tribunal was an experienced Tribunal and it must be taken to have been aware of the unqualified terms of s 87(2): Penfold v Penfold (314). It also referred to relevant authorities, including appellate authority, dealing with the factors which will 'ordinarily' guide the disposition of applications for costs against an unsuccessful vocational body. It had, in the preceding paragraph of its reasons, found, in effect, that the proceedings were not misconceived or lacking in substance, or brought in bad faith. It then addressed 'this case' and said, in effect, that there was nothing in 'this case' which warranted departure from the usual practice not to award costs against a vocational body unless the application made by the vocational body lacked any reasonable basis, or was not made in good faith.

97 In these circumstances, the contention that the Tribunal's reasons at [53] demonstrate that it fettered its discretion in its approach to the question of costs, cannot be accepted. In my view, the Tribunal said, in effect, that the factors which would ordinarily activate the exercise of discretion in favour of a successful respondent in proceedings of this kind had no application, and that there was nothing else in the circumstances of this particular case which would warrant the exercise of its discretion in favour of the practitioner. In my view, there is no merit in the submission that the Tribunal fettered its discretion by acting on the basis that it was bound to make no order as to costs.

98 To the extent that the second submission relies upon asserted facts which were neither admitted nor found by the Tribunal, the practitioner is, in substance, impermissibly seeking to turn what should be an appeal on a question of law (if leave is granted) into an appeal by way of a rehearing. In relation to the express findings of fact relied upon, none constitutes a mandatory consideration in the relevant sense. At most, the particularised findings might be regarded as relevant considerations, the weight of which was to be determined by the Tribunal, subject to the points raised in the practitioner's third and fourth submissions.

(Page 28)

99 I am also of the view that there is no basis for contending that the Tribunal failed to consider whether there was a reasonable basis for the Committee to commence proceedings, or whether the proceedings were properly brought and maintainable in the public interest. The Tribunal had expressly found at [52] that the proceedings (which were proceedings with respect to the standards to be observed by legal practitioners) were not frivolous, vexatious, misconceived, lacking in substance, brought for an improper purpose, or an abuse of process. As I have indicated earlier at [75], that finding was clearly open. By so finding, the Tribunal, in substance, turned its mind to and addressed the questions of whether there was a reasonable basis for the Committee to commence the proceedings, and whether the proceedings were properly brought and maintainable in the public interest.

100 For these reasons, the submission that the Tribunal erred in failing to take into account mandatory considerations has no merit.

101 In support of the third submission, the practitioner again relies on the findings to the effect that the practitioner had demonstrated a sound understanding of the issues, including the relevant evidentiary issues, in the workers' compensation proceedings. The contention, again, is that the corollary of these findings is that the Committee had no reasonable basis for ever contending to the contrary, and that the Tribunal's decision was thereby manifestly unreasonable in its failure to recognise the corollary necessarily implicit in its findings. For the reasons given earlier, it was open to the Tribunal to conclude that the proceedings were not an abuse of process, not frivolous, not vexatious, not misconceived and not lacking in substance. It was also clearly open for the Tribunal to conclude that, consequently, the proceedings had not been brought in bad faith or in the absence of reasonable grounds. Further, it was open to the Tribunal to conclude, in the circumstances of this case, that there was no factor otherwise calling for the exercise of discretion on costs in favour of the practitioner. Accordingly, in my view, there is no merit in the contention that the Tribunal's decision was so unreasonable that no reasonable tribunal could have arrived at the decision at which the Tribunal arrived in the present case.

102 As to the fourth submission, it should be noted, at the outset, that the appellate review of a discretionary judgment is not confined to questions of law, and appellate review of discretionary judgments may include appeals involving errors of law and errors of fact: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505. An appellate review of a discretionary judgment is not coterminous with an 'appeal' in the nature of

(Page 29)

judicial review of an administrative decision. Insofar as there is an analogy between the two, it may be accepted that an allegation of an implied failure by the Tribunal to exercise its discretion under s 87(2), on the basis of the principles in

Lovell v Lovell

and the other cases referred to in [30] above, does raise a question of law within the meaning of s 105(2) of the SAT Act. Even on that basis, however, in the circumstances of this case, an allegation to that effect does not, in substance, add anything to the question of whether the decision was so manifestly unreasonable that no reasonable tribunal could have reached it. For the reasons given earlier, it cannot be inferred in this case that the Tribunal had not actually exercised the discretion entrusted to it. The fourth submission does not establish arguable error.

103 In my view, leave to appeal should not be granted in respect of grounds 1A and ground 1B.

Ground 2 - alleged failure to give reasons in relation to costs

104 I have set out in [97] above my understanding of the Tribunal's reasons in relation to costs. The Tribunal's reasons were, in my view, sufficiently clear to enable the practitioner to have evaluated his prospects of success on appeal and to allow this court to evaluate the process of reasoning which led to the decision: see Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; 29 (2004) WAR 273, 283; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430, 441.

105 Accordingly, I would not grant leave to appeal in respect of ground 2.

Ground 1 - natural justice

Background

106 In his written closing submissions in the proceedings before the Tribunal, dated 13 July 2010, in the opening section headed 'Summary of Primary Argument', the practitioner stated:

12. The proceedings should now be dismissed under section 47 of the

State Administrative Tribunal Act

2004

(WA) and the Practitioner seeks an order for his costs.

13. What follows is the Practitioner's account of the legal principles, and their application, that underpin this argument.

(Page 30)

107 The written submissions attacked, in extensive detail, the case put by the Committee and, in substance, contended that the Committee's application was misconceived. For example, the Committee's case was described, inter alia, as 'entirely without merit' and one which, on any proper consideration of the workers' compensation proceedings, 'could never have been brought' (written submissions par 39). The practitioner's written submissions ran to 47 pages.

108 In the concluding section, headed 'Summary', the submissions by the practitioner stated:

217. There is no basis in law or fact for the case brought against the Practitioner once one has carefully read the [workers' compensation proceedings] Transcript and analysed the evidence ... The evidence of [the Committee's witness of fact] was entirely unreliable and that of [the Committee's expert] inexperienced and not based on readily available and highly relevant material. [The Committee's expert] was a partisan witness who would not give any ground even when logic demanded it.

218. [The practitioner] has been put through this lengthy, difficult and expensive process to no end.

Principles

109 In R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546, 552 - 553, the court said:

There can be no doubt ... that members of that Commission under the Act are bound to act in a judicial manner or that the common law principles of natural justice are applicable to the Commission and its members in relation to such hearings. But it must be borne in mind that these principles are not to be found in a fixed body of rules applicable inflexibly at all times and in all circumstances. Tucker LJ said in

Russell v Duke of Norfolk

(1):

'The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting,

the subject matter that is being dealt with, and so forth

This passage was approved by the Privy Council in

University

of Ceylon v Fernando

(2), and was used by Kitto J in

Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation

(3). There his Honour observed:

(Page 31)

'What the law requires in the discharge of a quasi-judicial function is judicial fairness .... What is fair in a given situation depends upon the circumstances.'

We agree with the foregoing statements of the relevant law. (emphasis added)

110 In Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149, Martin CJ said [3] - [4]:

It is well established that the precise content of the requirements of procedural fairness in any particular case will depend critically upon the statutory framework within which the relevant power falls to be exercised, and the facts and circumstances of the particular case - see

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] HCA 63; (2006) 228 CLR 152. Because of the large variety of statutory frameworks in which the obligation to provide procedural fairness arises, and the infinite variety of factual circumstances in which the determination of the precise content of the requirements of procedural fairness might arise, it is impossible to lay down a universally valid test or norm which can be applied to determine whether procedural fairness has been provided in each and every case - see

Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation

(1963) 113 CLR 475, at 503 - 504, (cited with approval in

SZBEL

)

A court required to determine whether a decision maker has departed from the requirements of procedural fairness must therefore analyse all facts and circumstances relevant to the purported exercise of the power, viewed in the context of the statutory framework conferring the relevant power, for the purposes of ascertaining whether there has been practical injustice in the particular case - Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37].

111 Also, Buss JA said [55] - [56]:

Fairness is essentially a practical concept. It is not abstract in nature.

The law of procedural fairness is concerned to avoid practical injustice

. See

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam

[2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ).

The requirements of procedural fairness are flexible. Proceedings before the Tribunal may be organised to ensure fairness having regard to the nature and circumstances of the particular proceeding, including the relevant facts, the statutory context, the matters in dispute, the circumstances of the particular litigants, and whether the particular proceeding is in the Tribunal's original or review jurisdiction. (emphasis added)

(Page 32)

112 Furthermore, not every denial of procedural fairness will necessarily result in the grant of relief: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145 - 146. There has been a consideration in some authorities of whether the principles in Stead v State Government Insurance Commission involve the application of a 'forward looking test' or a 'backward looking test', or both. See, for example, Giretti v Commissioner of Taxation (1996) 70 FCR 151, 165, 174 - 177; Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492 [72] - [80]; Lee v Minister for Immigration and Citizenship [2007] FCAFC 62; (2007) 159 FCR 181 [48] - [53]. As discussed in the authorities, the 'forward looking test' involves a consideration of whether relief for a breach of the rules of natural justice would be futile because a new hearing will inevitably result in the same order. The 'backward looking' test involves a consideration of whether the breach would have made any difference to the actual result at the impugned hearing.

The parties' arguments

113 The practitioner contends that the duty to act fairly required the Tribunal to give the practitioner, and the Committee, the opportunity to address the issue of costs under s 87(2) at a time after it had published its reasons for decision on the substantive issues and prior to exercising its discretion in relation to costs. The practitioner says that absent a failure to afford him procedural fairness, he 'would have made submissions to the Tribunal in relation to the exercise of its discretion under s 87(2) and such submissions would have made a difference to the decision'. The practitioner contends that he lost the opportunity to submit that the proceedings lacked a reasonable basis, were misconceived, lacked substance, and were 'doomed to fail'. The practitioner contends that 'only one conclusion is reasonably open on the Tribunal's reasons', namely, that the practitioner should be awarded his costs in respect of the proceedings before the Tribunal.

114 The practitioner seeks to support his argument by analogy. He contends that had the position been reversed, and the Tribunal found that the proceedings were misconceived or otherwise falling within s 47(1) of the SAT Act, the Tribunal could not have gone on to order costs against the Committee without a further hearing. The practitioner says that this demonstrates that he had an equivalent right to be heard on the question of costs on the findings actually made by the Tribunal.

(Page 33)

115 Furthermore, the practitioner contends that had he been given the opportunity, following the publication of the Tribunal's reasons, to make submissions on costs, the submissions would have been the same as those advanced in this court.

116 The Committee contends that the subject matter in the present case was, relevantly, the issue of costs which had been sought by the practitioner in the proceedings before the Tribunal. The Committee contends that having sought an order for costs and made extensive submissions on matters relevant to both the substantive issue in the proceedings and to that procedural application, it was not for the Tribunal, in the discharge of its duty to provide natural justice, to infer that the practitioner had more that he wished to submit on the question of costs. Reference was made to Grygiel v Baine[No 2] [2005] NSWCA 434 [11] - [13], which has been cited with approval in Stambulich v Ekamper [No 4] [2008] WASCA 189 [9].

Disposition

117 It is important to note the scope of the practitioner's submission that he was denied procedural fairness on the question of costs. It is not contended that he should have been afforded the opportunity to adduce additional evidence, not led in the proceedings, which would have been material to the question of costs. Nor is it said that the Tribunal should have given him the opportunity to put submissions on matters concerning costs unrelated to whether the proceedings were misconceived and lacking in substance. It is not alleged, for example, that the Committee conducted the proceedings in a dilatory fashion with adverse cost consequences to the practitioner, and that the practitioner was denied the opportunity of putting submissions on matters of that kind to the Tribunal. The contention, in substance, is that the Tribunal should not have addressed costs at [53] and made consequential orders, and should instead have given the practitioner the opportunity to contend that he was entitled to costs because the proceedings against him were misconceived, lacked any reasonable basis and were doomed to fail.

118 The subject matter of the decision (reasons [53]) was, relevantly for present purposes, the costs of the proceedings. The subject matter did not involve an adverse finding on the professional conduct of the practitioner. Unusually, the practitioner's closing submissions raised in terms, and addressed, an order for costs. The submissions in that regard were linked to the allegation that the proceedings fell within s 47(1) of the SAT Act and ought to be dismissed on that basis. The tenor of the submissions was

(Page 34)

that the proceedings were misconceived and lacking in substance. The effect of the submissions was that the proceedings lacked any reasonable basis and ought never to have been brought.

119 Accordingly, by his closing submissions, the practitioner sought an order for costs, and the submissions addressed, in substance, the matters which will 'ordinarily' be taken into account in the disposition of an application for costs by a successful respondent in disciplinary proceedings in the Tribunal. Although the submissions did not address those matters with the benefit of the Tribunal's findings, the submissions sought findings of a kind which would support the costs orders then being sought by the practitioner. There was no express indication that if those findings were not made, the practitioner would still wish to be heard on the question of costs. This was in a context in which the parties must be taken to have known that the general starting-point is that each party should bear his or its own costs and that in vocational proceedings in particular, the unsuccessful applicant will generally not have costs awarded against it unless the proceedings were not brought in good faith or lacked any reasonable basis.

120 In its reasons at [52], and in response to the closing submissions made on behalf of the practitioner, the Tribunal found, in effect, that the proceedings were not frivolous, were not vexatious, were not misconceived, were not lacking in substance, had not been brought for an improper purpose and were not an abuse of process. In that event, it was not unfair for the Tribunal not to provide the practitioner with a further occasion to put additional or other submissions to the effect that the proceedings were, in effect, doomed to fail. The Tribunal could not have been expected, in these circumstances, to afford the practitioner a further opportunity to make submissions contrary to its findings at [52].

121 Nor do I consider that the practitioner's argument derives assistance from the analogy which he seeks to draw and to which I have referred in [114] above. It seems to me that the position of a litigant, against whom an adverse costs order may be made on the basis of the findings of the Tribunal, is not in an equivalent position to a litigant who seeks a favourable costs order on a basis which is contrary to the findings of the Tribunal. In the case of the former, fairness may well require (depending on all the circumstances) that a litigant who has not previously responded to or made any submissions on costs, be heard before substantial costs consequences are visited on that litigant, even if they would be regarded as the natural and ordinary cost consequences of the findings in question. In the case of the latter, the litigant would be seeking to contend, in effect,

(Page 35)

for a finding in support of a costs order which was contrary to the findings already made. The latter would really involve, on the hypothesis under consideration, an attempt to undo the finding that the proceedings were not misconceived, lacking in substance and the like.

122 In the special circumstances of this case, I would not see that any practical injustice has occurred by the Tribunal's failure to invite further submissions by the practitioner on the question of costs in light of the Tribunal's findings.

123 Furthermore, even if there had been a denial of natural justice as alleged by the practitioner, in my opinion, relief should be denied on discretionary grounds on an application of either of the two tests referred to in [112] above.

124 If the practitioner had been given the opportunity to make the same submissions to the Tribunal on costs which he has made to this court, the Tribunal would inevitably have relied on its findings at [52] to dismiss the application. Accordingly, any further submissions by the practitioner to the Tribunal to the effect that the proceedings were lacking in substance or doomed to fail would not have made any difference to the actual decision reached by the Tribunal on costs. Similarly, if the matter were now remitted to the Tribunal for a further hearing, the same result would inevitably follow in light of its findings at [52]. Also, I would not, in any re-exercise of discretion under s 87(2), make an order for costs in favour of the practitioner. On the findings of the Tribunal, and, in all the circumstances of this case, the proper order, in my view, was that there be no order as to costs. Accordingly, no injustice is done if leave is not granted, even if the Tribunal had erred in law as alleged in ground 1.

Conclusion

125 None of the grounds of appeal establish that the Tribunal erred on a question of law. Even if an error of law were established by ground 1, it is not in the interests of justice that there be a grant of leave to appeal.

126 The application for leave to appeal should be dismissed.

Lourey v Legal Profession Complaints Committee

[2012] WASCA 112

29 MAY 2012

LOUREY -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2012] WASCA 112