Lourey v Legal Services and Complaints Committee

[2023] WASCA 90

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   LOUREY -v- LEGAL SERVICES AND COMPLAINTS COMMITTEE [2023] WASCA 90

CORAM:   MITCHELL JA

VAUGHAN JA

HEARD:   26 MAY 2023

DELIVERED          :   26 MAY 2023

FILE NO/S:   CACV 31 of 2023

BETWEEN:   MICHAEL JOSEPH LOUREY

Appellant

AND

LEGAL SERVICES AND COMPLAINTS COMMITTEE

Respondent

ON APPEAL FROM:

Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL

Coram:   PRESIDENT PRITCHARD

File Number            :   VR 98 of 2018

Catchwords:

Practice and procedure - Appeal against orders made by State Administrative Tribunal - Appeal only permitted on question of law under State Administrative Tribunal Act 2004 (WA) s 105(2) - Grounds of appeal did not state relevant questions of law - Appellant's case rejected for non‑compliance with Supreme Court (Court of Appeal) Rules 2005 (WA) r 32(4)(e) - Application for review of registrar's decision

Legislation:

State Administrative Tribunal Act 2004 (WA), s 105, s 105(2), s 105(13), s 105(13)(b)
Supreme Court (Court of Appeal) Amendment Rules 2017 (WA), r 18(3)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 10(1), r 15, r 16, r 20, r 21, r 32(4)(e)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Appellant	:	M J Lourey
Respondent	:	N D Pope

Solicitors:

Appellant	:	Chapmans Barristers & Solicitors
Respondent	:	Legal Services and Complaints Committee

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

Commissioner for Consumer Protection v Carey [2014] WASCA 7

Giudice v Legal Profession Complaints Committee [2014] WASCA 115

Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315

Khosa v Legal Profession Complaints Committee [2017] WASCA 192

Legal Profession Complaints Committee v Lourey [2022] WASCA 114

Osland v Secretary, Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320

Panegyres v Medical Board of Australia [2020] WASCA 58

Young v Legal Profession Complaints Committee [2022] WASCA 52

REASONS OF THE COURT:

1. The appellant, a legal practitioner, applied for review of a Court of Appeal registrar's decision to refuse to accept an appellant's case dated 10 March 2023 for filing in appeal CACV/12/2023.  Immediately before the hearing the parties filed a consent notice consenting to orders that the application be dismissed with no order as to costs.  We made those orders. We said that we would provide written reasons for making the orders in accordance with the consent notice. These are our reasons.

2. In short, for the reasons that follow, the registrar was correct to refuse to accept the appellant's case for filing.  As we will explain, the appellant's case does not comply with the Supreme Court (Court of Appeal) Rules 2005 (WA) (CA Rules).

3. Rule 10(1) of the CA Rules provides:

   A registrar may refuse to accept for filing any document that is required or permitted by these rules, or an order made under these rules, if it does not obey these rules or any order made under these rules.

4. A decision to refuse to accept a document for filing is a 'reviewable decision' for the purpose of r 15 of the CA Rules.[1]  Accordingly, a person who is dissatisfied with the decision may apply to review it.[2]  While a single judge of appeal has jurisdiction to decide the review application[3] this application was listed before a Court of Appeal comprised of two judges of appeal.  A Court of Appeal comprised of two or more judges of appeal may hear and determine any application within the jurisdiction of a single judge of appeal.  In doing so it is necessary to consider afresh the matter that was decided by the registrar.[4]

   [1] CA Rules r 15(1A).

   [2] CA Rules r 15(1).

   [3] CA Rules r 16.

   [4] CA Rules r 16.

5. The registrar gave two reasons for refusing to accept the appellant's case for filing:[5]

   1.The grounds of appeal did not state the relevant questions of law as is required by r 32(4)(e) of the CA Rules.

   2.The parties to the appeal in the draft appeal book indexes were incorrectly named.

   [5] Letter Acting Court of Appeal Registrar to appellant's solicitors dated 14 March 2023.

6. Rule 32 of the CA Rules deals with the various substantive and form requirements of an appellant's case. Other form requirements are found in r 20 and r 21. Rule 32(4)(e) was introduced in 2017.[6]  It provides in relation to the document titled 'Appellant's grounds of appeal' within the appellant's case that:

   if, under the written law under which the appeal is made, an appeal lies only if it is on or involves a question of law, [the document containing the grounds of appeal] must state the question of law.

   [6] Supreme Court (Court of Appeal) Amendment Rules 2017 (WA) r 18(3).

7. Rule 32(4)(e) facilitates the hearing of an appeal where the right of appeal is limited to an appeal on or involving a question of law. Section 105(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides a common example of such a written law. It states that an appeal can only be brought on a question of law. Such an 'appeal' is in the nature of judicial review; it is not an appeal by way of rehearing.[7]

   [7] Commissioner for Consumer Protection v Carey [2014] WASCA 7 (Carey) [69], [72], [163].

8. Whether a question is one of law must be approached as a matter of substance.[8]

   [8] Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 (Haritos) [62](6), [94], [203].

9. It is essential that the question of law relied on for the purpose of s 105(2) of the SAT Act is identified with precision.[9]  The question of law is not simply to be distilled from the ground or grounds of appeal.[10] The existence of a question of law is a qualifying condition to invoke the court's jurisdiction under s 105 and is also the subject matter of the appeal itself.[11]  It follows that the ambit of the appeal is confined to the question or questions of law.

   [9] Carey [165]; Giudice v Legal Profession Complaints Committee [2014] WASCA 115 [73]; Panegyres v Medical Board of Australia [2020] WASCA 58 [219]; Legal Profession Complaints Committee v Lourey [2022] WASCA 114 [127]. The Federal Court of Australia takes the same view in relation to appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth): Haritos [62](2), [91], [97].

   [10] Osland v Secretary, Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320 (Osland) [21].

   [11] Osland [21]; Carey [165]; Giudice v Legal Profession Complaints Committee [73]; Legal Profession Complaints Committee v Lourey [127].

10. The importance the court attaches to identification of the relevant question of law is, regrettably, not matched by practitioners appearing in the court. Nearly 10 years ago reference was made to the 'chronic failure' by most practitioners appearing in the court to articulate, with precision or at all, questions of law in appeals under s 105 of the SAT Act.[12]  That failure continues.[13]  Rule 32(4)(e) of the CA Rules was introduced to ensure the proper articulation of the question of law the subject of the appeal.

    [12] Giudice v Legal Profession Complaints Committee [70].

    [13] See eg Panegyres v Medical Board of Australia [219]; Young v Legal Profession Complaints Committee [2022] WASCA 52 [123]; Legal Profession Complaints Committee v Lourey [129].

11. CACV 12 of 2023 is an appeal against orders made on 2 February 2023 by the State Administrative Tribunal (Pritchard P).  The orders concerned various pre-hearing interlocutory directions whereby the appellant was ordered to file and serve a response to a complaint, a book of documents and an outline of submissions.  Pritchard P also dismissed the appellant's application for orders in terms of a minute of proposed orders dated 27 January 2023.  The appellant had sought orders that the respondent file and serve an amended complaint, an amended statement of facts and contentions for each complaint and a fresh book of documents.  The appellant had also sought that the respondent identify the particulars and, further or alternatively, the facts and contentions by which it advanced one of its allegations as to the appellant's alleged conduct.

12. The grounds of appeal in the appellant's case that the registrar refused to accept for filing provide (omitting particulars):

    1.The State Administrative Tribunal ("the SAT") erred in law in failing to apply and/or follow the rules of natural justice in breach of s 32(1), of the State Administrative Tribunal Act 2004 ("the SAT Act"), and/or by breaching s 32(6)(a) of that act [sic].

    2.The State Administrative Tribunal ("the SAT") erred in law in allowing into evidence documents and materials which were unfairly prejudicial to the Appellant, and which prejudice outweighed their probative value.

13. The grounds of appeal do not state the question of law on which the appeal is brought - there is only a statement of the grounds of the appeal.

14. In seeking review of the registrar's decision to refuse to accept the appellant's case for filing the appellant advanced three grounds. First, that r 32(4)(e) of the CA Rules did not apply given s 105(13) of the SAT Act. Second, that the appellant's case 'clearly' states the question of law by way of the grounds and submissions included in the appellant's case. Third, that the incorrect party names in the indexes were a mere typographical error which provided no basis for refusing to accept the appellant's case.[14]

    [14] Appellant's application dated 21 March 2023.

15. It is not necessary to deal with the third ground and the appellant's infelicitous references to the names of persons who are not parties to the appeal.

16. The appellant's first ground in support of his application amounted to a contention that r 32(4)(e) of the CA Rules did not apply as the appeal was under s 105(13) of the SAT Act rather than s 105(2) of the Act.[15]

    [15] Appellant's submissions dated 29 March 2023 pars 9 - 13.

17. Section 105 of the SAT Act relevantly provides:

    (1)A party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal.

    (2)The appeal can only be brought on a question of law.

    …

    (13)Despite subsection (2), if the Tribunal's decision -

    (a)is made under a relevant Act or in a proceeding for the review of a decision made under a relevant Act; and

    (b)has the effect of depriving a person of the person's capacity to lawfully pursue a vocation,

    an appeal under this 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.

18. The appellant said that s 105(13) of the SAT Act permitted an appeal on 'any ground'. It thus expanded the scope of an appeal from that which is permitted by s 105(2). It followed, according to the appellant, that r 32(4)(e) of the CA Rules did not apply because the appeal was not brought merely on a question of law.

19. The enlarged right of appeal under s 105(13) of the SAT Act is only available where, in terms of s 105(13)(b), the decision appealed from has the effect of depriving a person of the person's capacity to lawfully pursue a vocation. The reference to the 'effect' of the Tribunal's decision is to the legal effect of the decision rather than the practical effect of the decision.[16] In this case neither the Tribunal's positive orders requiring the appellant to take procedural steps prior to the hearing, nor the refusal of orders requiring the respondent to take other procedural steps prior to the hearing, had the legal effect of depriving the appellant of his capacity lawfully to pursue the vocation of a legal practitioner. Accordingly, s 105(13) of the SAT Act is unavailable to enlarge the appellant's right of appeal against the orders made on 2 February 2023.

    [16] Young v Legal Profession Complaints Committee [118]. See generally Khosa v Legal Profession Complaints Committee [2017] WASCA 192 [149] ‑ [153].

20. The appeal is one under s 105(2) of the SAT Act and can only be brought on a question of law. Rule 32(4)(e) of the CA Rules applies.

21. The appellant's second ground in support of the application is misconceived: the question of law is not to be distilled from the ground or grounds of appeal and submissions. The statutory purpose of r 32(4)(e) would be frustrated if this was to be sufficient. Rule 32(4)(e) requires separate and distinct articulation of the question of law on which the appeal is brought as part of the document containing the grounds of appeal. That requirement has not been complied with.

22. In written submissions the appellant referred to earlier appeal proceedings between the appellant and the respondent's predecessor.  In that appeal the court required the respondent's predecessor to file and serve substituted grounds of appeal stating the questions or questions of law on which the appeal was brought.  The appellant said that was the appropriate order in this appeal and the registrar should have approached the matter on that basis.  It was said to be unfair to the appellant to do one thing for the respondent's predecessor and a different thing for him.[17]

    [17] Appellant's submissions dated 29 March 2023 pars 15 - 17 (referring to Legal Profession Complaints Committee v Lourey [128] - [130]).

23. In the earlier appeal proceedings the deficiency in the appellant's case did not become apparent until the appeal hearing. The appellant's case, although defective, was accepted for filing. Presumably the deficiency was not identified when the appellant's case was lodged. On this occasion the Court of Appeal registrar has identified the deficiency in the appellant's case. The simple fact is that an appellant's case in respect of an appeal pursuant to s 105(2) of the SAT Act which fails to comply with the requirement under r 32(4)(e) of the CA Rules is defective. It should no longer be expected that the Court of Appeal registrar will accept such an appellant's case for filing. What may have occurred in the past has no bearing on the exercise of the registrar's power to refuse to accept for filing any document that does not obey the CA Rules.

24. For these reasons the Court of Appeal registrar was correct to refuse to accept the appellant's case dated 10 March 2023 for filing on the basis that it did not comply with r 32(4)(e) of the CA Rules. It was therefore appropriate to make the orders proposed in the parties' consent notice. We ordered that the appellant's application dated 21 March 2023 for review of a registrar's decision be dismissed and that there be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MD

Associate to the Honourable Justice Vaughan

26 MAY 2023