LUND and LEGAL PROFESSION COMPLAINTS COMMITTEE - [2019] WASAT 108

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION:   LUND and LEGAL PROFESSION COMPLAINTS COMMITTEE [2019] WASAT 108
MEMBER:   JUDGE T SHARP, DEPUTY PRESIDENT
MS C WALLACE, SENIOR MEMBER
MS R MOORE, MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   8 NOVEMBER 2019
FILE NO/S:   VR 18 of 2019
BETWEEN:   ERIC LOUIS LUND
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
SHANE MICHAEL BRENNAN
Second Respondent

Catchwords:

Legal practitioner - Review under s 435(1) of the Legal Profession Act 2008 (WA) - Review of decision of Legal Profession Complaints Committee to dismiss complaints - No reasonable likelihood that practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct by Tribunal

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 23A
Evidence Act 1906 (WA), s 79C, s 79C(2)(d)
Legal Profession Act 2008 (WA), s 260, s 260(1)(f), s 260(4), s 262, s 402, s 403, s 404(b), s 425, s 435(1)(a)
State Administrative Tribunal Act 2004 (WA), s 24, s 27(1), s 27(2), s 60(2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
First Respondent	:	Mr S Merrick
Second Respondent	:	In Person

Solicitors:

Applicant	:	N/A
First Respondent	:	Legal Profession Complaints Commitee
Second Respondent	:	N/A

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

Briginshaw v Briginshaw (1938) 60 CLR 336
Chinnery and Legal Profession Complaints Committee [2013] WASAT 79
D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198
Greenwood and Legal Profession Complaints Committee [2010] WASAT 31
Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42
Lund v Davies [2013] WASC 52
Lund v Davies [2013] WASCA 268
Lund v Davies [2014] HCASL 102
Lund v Davies [2014] WASC 379
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83
SJX and Legal Profession Complaints Committee [2012] WASAT 154

REASONS FOR DECISION OF THE TRIBUNAL:

The application

The applicant, Mr Eric Louis Lund (Mr Lund), seeks a review pursuant to s 435(1)(a) of the Legal Profession Act 2008 (WA) (LP Act) of a decision made by the first respondent, the Legal Profession Complaints Committee (LPCC). That decision was to dismiss a number of complaints made by Mr Lund against the second respondent, Mr Shane Michael Brennan (Mr Brennan), a legal practitioner retained to represent Mr Lund in Magistrates Court proceedings PE 37706-PE 37710 of 2009 (Magistrates Court proceedings).
Mr Lund was the defendant in the Magistrates Court proceedings and had been charged with two offences relating to an alleged assault of his former partner, NB (NB Charges), and three offences relating to obstructing and assaulting a police officer and refusing to supply personal information when requested by police (Police Charges).
Mr Lund made various complaints to the LPCC about Mr Brennan's conduct of the Magistrates Court proceedings. Those complaints were investigated by the LPCC but were ultimately dismissed. The decision by the LPCC to dismiss the complaints is the subject of this review application.
The complaints can be summarised as follows:
(1)Mr Brennan failed to adequately advise Mr Lund and to prepare for the Magistrates Court proceedings by failing to competently advise Mr Lund as to the merits of any defence to be raised and the evidence required to prove the defence, including the evidence required to establish that Mr Lund had suffered chest wounds from an unlawful use of a police taser;
(2)Mr Brennan failed to represent Mr Lund competently at trial including by failing to question the veracity of the prosecution's evidence and why the evidence given by various police officers was inconsistent;
(3)Mr Brennan failed to take all reasonable and practicable steps to ensure that legal services were provided in a timely manner by requesting, in March 2011, that the trial of the Magistrates Court proceedings be listed for five days and then extended to a period of 10 days, contrary to Mr Lund's instructions;
(4)Mr Brennan on or about 29 March 2011 sought an adjournment of the trial for a period of almost a year in the absence of instructions to do so, on the basis of Mr Brennan's opinions of Mr Lund's medical condition but without any proper foundation;
(5)Mr Brennan on or about 22 March 2012 sought an adjournment of the trial in the absence of instructions to do so, on the basis, but without any proper foundation that Mr Lund was not fit to continue the trial;
(6)Mr Brennan on or around 16 April 2012, during the trial of the Magistrates Court proceedings, sought a further adjournment to allow him to adduce expert evidence from Dr B;
(7)Mr Brennan disclosed Mr Lund's confidential medical information to the Magistrates Court on 22 March 2012 without express or implied authority to do so;
(8)Mr Brennan conspired with a Royal Perth Hospital (RPH) employee to fabricate evidence for the purpose of satisfying s 79C(2)(d) of the Evidence Act 1906 (WA) (Evidence Act) in relation to the evidence sought to be secured from the medical practitioners who had attended to Mr Lund; and
(9)Mr Brennan failed to provide adequate costs disclosure as required by ss 260 and 262 of the LP Act by:
(i)failing to refer to the applicable costs determination in the costs agreement dated 10 February 2010;
(ii)failing to include an estimated range of costs that may be recoverable or that Mr Lund may be ordered to pay; and
(iii)failing to fully and adequately explain the terms of the costs agreement to Mr Lund.

History of the proceeding at the Tribunal

The review application was received by the Tribunal on 13 February 2019.
The Tribunal made programming orders, requiring the LPCC to file a statement of the reasons for its decision (LPCC's reasons) together with the documents it was required to file pursuant to s 24 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The other parties were given liberty to file their own bundles of documents which they considered relevant to the proceeding but which were not already filed with the LPCC.
The parties were also required to file written submissions upon which they intended to rely in the proceeding. The Tribunal then ordered that the substantive matter be determined entirely on the documents under s 60(2) of the SAT Act.
The following documents and submissions were filed with the Tribunal to assist it in its determination of the review application:
(a)the LPCC's bundle of documents dated 9 April 2012 (which includes the LPCC's reasons at pages 1-28) (LPCC's bundle);
(b)Mr Lund's bundle of documents dated 14 May 2019 (Mr Lund's bundle);
(c)Mr Lund's written submissions dated 4 June 2019 (Mr Lund's written submissions);
(d)Mr Brennan's written submissions dated 25 June 2019;
(e)the LPCC's written submissions dated 25 June 2019; and
(f)Mr Lund's written submissions in reply dated 16 July 2019.

Relevant factual background

On 13 June 2009, Mr Lund was involved in an altercation which took place in the home of NB, Mr Lund's former partner. The police attended and a struggle ensued between Mr Lund and one of the police officers. During the course of attempting to restrain Mr Lund, a number of police officers applied their tasers in order to incapacitate Mr Lund. The police officers then handcuffed him.
Mr Lund was ultimately charged on a prosecution notice which set out that Mr Lund:
(1)without consent was in the dwelling of NB and committed the offence of assault;
(2)unlawfully assaulted NB under circumstances of aggravation, namely that Mr Lund is in a domestic or family relationship with the victim;
(3)assaulted a police officer in performing a function of his office;
(4)when requested by a police officer to supply personal details, namely name and address, refused to do so; and
(5)obstructed a police officer in the performance of that officer's functions.
Mr Lund retained Mr Brennan to represent him in the defence of the NB Charges and Police Charges. On 1 February 2010 Mr Brennan provided a costs agreement and an initial costs estimate to Mr Lund of $17,600 plus GST. He estimated that the matter would likely require two days of preparation for a two day hearing; LPCC's bundle pages 239-245.
Mr Lund instructed Mr Brennan to the effect that NB had staged the assault so that Mr Lund would be arrested and that he suspected that the police were involved. On 12 March 2010 Mr Lund wrote to Mr Brennan in this regard as follows:
I now believe that on the night I was unfortunate to have encountered officers that aren't so good, or that they too were somehow involved in [NB's] set up. She claims to be friendly with some police from her career days, and that her brother is too.
(LPCC's bundle pages 246-249)
Mr Lund informed Mr Brennan that it was he who was in fact assaulted by NB. He also alleged that the police tasered him unlawfully, including to his chest, and that he had attended RPH to receive treatment for injuries he sustained.
Mr Brennan wrote to Mr Lund on 26 March 2010, noting that his current view was that the Magistrate would likely convict Mr Lund given the likelihood that a number of police officers would give evidence at trial which would corroborate NB's version of events. Mr Brennan also provided an amended costs estimate at this time, given the voluminous materials provided to him by Mr Lund. He increased his estimate of his costs by $5,500. In this correspondence Mr Brennan informed Mr Lund as follows:
If you wish to proceed to trial I would be prepared to act as your Counsel, but I have grave doubts as to whether you can successfully defend any of the charges.
(LPCC's bundle pages 252-254)
On the basis that the prosecution had not disclosed any evidence of Mr Lund being tasered to the chest, Mr Brennan served a summons on the Commissioner of Police on 20 April 2010 requesting the data for all taser guns activated and directed at Mr Lund during the incident, including their serial numbers, as well as the police communications and records for the incident.
Also at this time, it became clear to Mr Brennan that the time set down for the trial, which had been listed for one day on 1 June 2010, was insufficient and that the trial would take at least two or possibly three days. In the circumstances, Mr Brennan considered that it was necessary to vacate the trial date. This was communicated to Mr Lund by Mr Brennan and Mr Lund agreed with that course of action; LPCC's bundle pages 289-292.
The documents produced in compliance with the summons did not support Mr Lund's version of events in respect to being tasered to the chest. Mr Lund provided Mr Brennan with photographs taken of his chest wounds and gave Mr Brennan a report from Dr A dated 16 June 2009. Dr A was the attending RPH doctor who saw Mr Lund in the Emergency Department. Mr Lund says that this report supported his version of events and which noted the following:
Four small marks on left lower chest anteriorly (from tazer gun).
(Mr Lund's bundle page 9)
On instructions from Mr Lund, Mr Brennan continued to seek further disclosure from the prosecution.
Mr Brennan then wrote to Mr Lund on 26 July 2010 noting, amongst other things, the following:
Please also find attached for filing, and service upon the Police Commissioner, a Further Summons, requiring the encrypted point .x26 data files in respect of all Tasers, issued to all officers, who attended the incident on the 13th June 2010.
The Summons you will note, also requests provision of the Use of Force Report submitted to Internal Affairs by Const. M[.]
We have written as requested by you, to Vodafone, seeking your mobile phone records for the 12th and 13th of June 2009.
We confirm you have provided us with voluminous and detailed written and oral instructions in respect of potential cross-examination and submissions, with a view to discrediting the police version of events.
In particular, the Police Depositions are to the effect, all Taser deployments were to your lower back area, whereas the report of Dr A … is to the effect you were also Tasered on the left lower chest. If the prosecution are not prepared to admit Dr A's report by consent, it will be necessary to Subpoena him to give evidence on your behalf, and for the trial be arranged to accommodate his availability.
You have made an FOI Application for the RPH records of your examinations on the 14th and 16th June 2009. Further, you have provided us with a copy of your FOI application of the 22nd July 2010, in respect of the Police Manual[.]
…
Our fees in this matter will considerably exceed our original cost preestimates. We are unable at this time to provide you with realistic costs pre-estimate but will do so as soon as we are able[.]
(LPCC's bundle pages 304-306)
Mr Brennan was instructed to continue to act in the Magistrates Court proceedings and subsequently served further summonses on the Commissioner of Police on respectively 29 July, 14 and 28 October 2010.
Mr Brennan was informed that he was not authorised to be provided with the requested encrypted data files and related security credentials for all taser guns carried by the police officers who attended the incident. The 12 October 2010 trial allocation date was adjourned to November in order to allow a separate hearing on the issue of compliance with the summonses to be resolved.
This issue was dealt with on 18 November 2010 and the Magistrate ordered that the prosecution provide the further taser data by way of disclosure. A new trial date was set for 30 November 2011. At this time Mr Brennan provided Mr Lund with a revised costs disclosure and noted as follows:
Should this matter proceed to trial for say five days, I envisage preparation of at least three further days. Accordingly, our fees in relation to a five day trial will be in the order of $30,000.00 plus GST. We will require payment of that sum at least 30 days prior to the listed trial date.
(LPCC's bundle pages 338-339)
Mr Brennan and Mr Lund met on 18 February 2011. On that occasion Mr Lund told Mr Brennan that he was not satisfied with the extent of the prosecution disclosure and asked Mr Lund to meet with him again on 22 February 2011. Mr Brennan in particular noted as follows:
The trial is listed for 5 days. My professional fees will comprise the sum of $4,000.00 per day plus GST for ten days getting up case and trial.
Please let me have your payment in relation to preparation for trial, namely $22,000.00 within the next seven days and the balance, namely fees for trial, at least thirty days prior to the listed trial date.
This is a considerable investment on your part and I once again confirm your advice you wish to proceed to trial notwithstanding the costs. In the event you are totally successful at trial, you will be entitled to a costs order, however you will not be paid a sum equivalent to your expenditure.
(LPCC's bundle pages 342-343)
During February and March 2011 Mr Brennan requested further disclosure from the prosecution.
Mr Brennan and Mr Lund then had a telephone conversation on 29 March 2011, which was confirmed in writing by Mr Brennan on the same date, noting the following:
(1)Mr Brennan confirmed that he had not received any further disclosure from the prosecution;
(2)Mr Brennan's view was that the current trial listed for five days would be insufficient and that a 10 day trial would be required in order to determine the matter;
(3)Mr Brennan confirmed Mr Lund's instructions that he was suffering symptoms of insomnia, stress and depression and was unable to fulfil his instructions in final form, particularly in relation to materials relating to tasers; and
(4)given Mr Lund's inability to instruct Mr Brennan, Mr Brennan confirmed Mr Lund's intent to obtain a report from his psychiatrist to support a request for an adjournment.
(LPCC's bundle pages 353-355)
Mr Lund obtained a letter from Dr DJ on 29 March 2011 in which Dr DJ gave his opinion that Mr Lund, in his current state of mind, was not able to give Mr Brennan instructions in final form or to endure the 'rigours' of a trial. Dr DJ noted that it would take several months before Mr Lund was emotionally and mentally well enough to properly address the matters relevant to the Magistrates Court proceedings; LPCC's bundle page 352.
Mr Brennan tendered the report of Dr DJ at a pre-trial conference on 31 March 2011 and sought for the trial date to be vacated on the basis that Mr Lund was not fit to stand trial. The prosecution did not object to the application and the trial was vacated.
Mr Brennan and Mr Lund met on 31 March 2011 and their discussion was confirmed in an email dated 1 April 2011; LPCC's bundle pages 358359. It was confirmed during that meeting that the trial scheduled to commence on 11 April 2011 had been vacated on the basis that Mr Lund was not fit to instruct Mr Brennan. Although Mr Brennan noted that substantial further getting up for trial was required, he undertook to carry out that further preparation for Mr Lund at no fee. However, Mr Brennan further noted that the 10 day trial would require professional fees of $44,000 inclusive of GST.
Between 1 April 2011 and 29 February 2012 Mr Brennan continued to seek further disclosure from the prosecution in an attempt to identify the taser which had allegedly caused chest wounds to Mr Lund, or alternatively, to prove that the police had either deliberately or inadvertently not disclosed that information.
In August 2011 the prosecution filed further material which included a witness statement and detailed report from a police taser expert; LPCC's bundle pages 368-392.
The matter was listed for trial on 19 March 2012 with a pre-trial disclosure hearing listed on 6 December 2011.
Mr Brennan and Mr Lund met in November 2011 (file note in Mr Lund's bundle pages 182-184) at which time Mr Brennan informed Mr Lund that there was still difficulty in corroborating Mr Lund's claims in relation to the police acting unlawfully by tasering his chest.
In the following month, December 2011, Mr Lund provided further instructions to Mr Brennan in relation to outstanding disclosure issues and a detailed and technical list of further material required. This culminated in Mr Brennan sending a request for further technical disclosure to the prosecution on 2 December 2011; LPCC's bundle pages 395-398. In the circumstances the pre-trial disclosure hearing listed for 6 December 2011 was adjourned to 31 January 2012.
On 23 January 2012 Mr Lund emailed Mr Brennan as follows:
I want you to advise the police that if they are unable to produce documents clearly evidencing two Taser deployments to my chest from officer [M] by Friday the 27th of January 2012, I intend to make an official complaint with their Internal Affairs Unit and in doing so I will send a copy of it to the Corruption and Crime Commission (CCC), and probably the media.
(LPCC's bundle page 402)
Mr Brennan responded in an email on 24 January 2012 which contained the following paragraph:
It would be entirely inappropriate to require police to produce documents, confirming you were tasered to the chest, on the basis a failure so to do would result in a complaint to their Internal Affairs unit, and the CCC. My advice is based on two propositions. Firstly, such document or documents may or may not exist. Secondly, and critically, it may be argued such a proposal would comprise a crime on the part of any person putting such a proposition to the police service.
(LPCC's bundle page 403)
Then on 31 January 2012 Mr Lund emailed Mr Brennan as follows:
… I am happy to pay you a further deposit towards the trial but I want you to have the trial date vacated. The Police clearly need more time to sort themselves out regarding the apparent disclosure difficulties that they're having, and conduct internal investigations as may be necessary.
(LPCC's bundle page 406)

The issue of outstanding disclosure was listed for hearing on 29 February 2012. At that time the issue of disclosure was adjourned to be heard at the commencement of the trial on 19 March 2012.
The trial was heard before Magistrate Boothman between 19 and 30 March 2012 when it was adjourned part heard until 16 April 2012.
During the course of the trial, the prosecution successfully objected to the admission of the Dr A report referred to at [18] of these reasons, pursuant to s 79C of the Evidence Act.The Magistrate held that it was open on the evidence to infer that Mr Lund attended RPH for the purpose of making a record of his injuries in order to benefit his defence; LPCC's bundle page 58. Therefore the report was held inadmissible as to the truth of what Dr A may have said.
As a result, Mr Brennan advised Mr Lund to attempt to locate Dr A in order to ascertain whether he was able to provide admissible evidence to corroborate Mr Lund's claim as to the nature of the chest wounds.
On 30 March 2012 Mr Brennan provided Mr Lund with a further costs disclosure. He informed Mr Lund that at least two days was required, but maybe more, to prepare submissions on his behalf and at least another day in court for submissions and a further court date for delivery of the decision; LPCC's bundle pages 492-494.
At the resumed trial on 16 April 2012, Mr Brennan sought a further adjournment to allow him to obtain expert evidence in relation to the chest wounds from Dr B, being a UK based medical expert.
This request was refused by the Magistrate and the trial concluded with the Magistrate reserving his decision.
On 21 June 2012 Mr Lund was convicted of all of the charges against him. He was fined the amount of $3,200 and ordered to pay costs. In relation to the NB Charges, the Magistrate accepted NB's evidence over Mr Lund's evidence. In relation to the Police Charges, the Magistrate rejected the claims made by Mr Lund that he had been unlawfully tasered to the chest, noting that this claim was refuted by the evidence of the police taser expert. The Magistrate was satisfied, based on the evidence before him, that the chest wounds were not in keeping with the nature of injuries caused by tasers and therefore dismissed this part of Mr Lund's defence. The Magistrate considered that the defence's claim, that the police took a taser from some other police station, was 'speculative'; LPCC's bundle page 150.
Mr Lund appealed his conviction, which was heard in the Supreme Court of Western Australia in December 2012; Lund v Davies [2013] WASC 52 (Lund). Mr Lund was not legally represented, although Mr Brennan assisted him on a pro-bono basis. In a judgment delivered in March 2013, Allanson J allowed the appeal and dismissed the conviction in respect of the NB Charges on the basis that the Magistrate had erred by accepting NB's evidence despite it's 'patent deficiencies'; Lund at [70]. Allanson J also found that the Magistrate had failed to consider whether the prosecution had rebutted, beyond reasonable doubt, Mr Lund's belief that a sudden and extraordinary emergency existed and that his acts were a necessary response to that emergency. Allanson J found that the Magistrate appeared to have wrongly placed the onus of proof on Mr Lund; Lund at [46].
However, Allanson J dismissed the appeal against the Police Charges, rejecting Mr Lund's claim that the Magistrate erred in law by refusing the application for an adjournment made on 1 April 2012. Allanson J held that he was satisfied that there had been no substantial miscarriage of justice as a result of that refusal; Lund at [87].
Mr Lund then applied for leave to appeal the decision of the Supreme Court to dismiss the appeal in relation to the Police Charges to the Court of Appeal; Lund v Davies [2013] WASCA 268 (Lund Appeal). On 28 November 2013 the Court of Appeal dismissed each of the grounds of appeal noting that they did not have a reasonable prospect of succeeding; Lund Appeal at [38].
Mr Lund then sought special leave, out of time, to appeal to the High Court. That application was heard and refused on 19 June 2014; Lund v Davies [2014] HCASL 102. The High Court noted that the application concerned the exercise of a discretion in relation to a matter of practice and procedure and that Mr Lund had not been able to identify any error in the exercise of that discretion. Thus the High Court held that the appeal had no prospects of success; LPCC's bundle page 190, para 4.
In October 2014 the Supreme Court heard Mr Lund's further application for leave to appeal; Lund v Davies [2014] WASC 379 (Lund 2014). The application for leave to appeal was made in respect to the conviction of Mr Lund of the Police Charges and was made 26 months out of time. Leave to appeal was refused, Chaney J noting that Mr Lund had 'exhausted his rights of appeal'; Lund 2014 at [24].

Decision the subject of the review

Mr Lund made complaints concerning Mr Brennan's conduct of the Magistrates Court proceedings with the LPCC commencing in about mid-2015.
On 16 January 2019 the LPCC resolved to express concern in relation to the complaints made against Mr Brennan in respect of costs incurred in the Magistrates Court proceedings (and his conduct of the defence which led to those costs being incurred). The LPCC otherwise dismissed the complaints, on the basis that the LPCC was satisfied that there was no reasonable likelihood that Mr Brennan would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct; LPCC's bundle pages 734.

The statutory scheme

Section 425 of the LP Act provides as follows:
425.Dismissal of complaint
After an investigation of a complaint against an Australian legal practitioner is completed, the Complaints Committee may dismiss the complaint if satisfied that
(a)there is no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct; or
(b)it is in the public interest to do so.
The review by the Tribunal of the LPCC's decision is by way of a hearing de novo (s 27(1) of the SAT Act), the purpose of which is to produce the correct and preferable decision at the time of the decision upon the review (s 27(2) of the SAT Act). That is, the Tribunal is to consider each of the complaints made by Mr Lund and to determine whether there is a reasonable likelihood that the Tribunal might, on referral to it of the relevant complaint, find Mr Brennan guilty of either unsatisfactory professional conduct or professional misconduct arising from the particular complaint.
Unsatisfactory professional conduct is defined in s 402 of the LP Act as follows:
402.Term used: unsatisfactory professional conduct
For the purposes of this Act -
unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
Professional misconduct is defined in s 403 of the LP Act as follows:
403.Term used: professional misconduct
(1)For the purposes of this Act -
professional misconduct includes -
(a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(2)For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.
The meaning of the words 'reasonable likelihood' contained within s 425 of the LP Act, was addressed by the Tribunal in Greenwood and Legal Profession Complaints Committee [2010] WASAT 31 at [26]-[28] as follows:
26The word 'likelihood' means 'the chance or fact of being likely', and 'a thing that is likely' or a 'probability' (Shorter Oxford English Dictionary, 6th ed, 2007) and the word 'likely' means 'that looks as if it would happen, be realised, or prove to be what is alleged or suggested; probable' (Shorter Oxford English Dictionary). However, the word is qualified by the requirement that the likelihood be 'reasonable'. The word 'reasonable' means 'not greatly less or more than might be thought likely or appropriate; of a fair, average, or considerable amount' (Shorter Oxford English Dictionary).
27The meaning of the phrase 'reasonable likelihood' in the context of s 425 of the LP Act is synonymous with the phrase 'reasonably likely'. The meaning of that phrase was discussed in Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 at [842] (Marks J, Young CJ and Teague J agreeing) in the following passage:
The relevant expression here is 'reasonably likely' which has some analogy to 'fair probability'. It suggests the mathematical approach; the word 'reasonably' being a qualification of 'likely', alternatively, a measure in colloquial language of the likelihood.
The expression 'reasonably likely' is substantially idiomatic, its meaning not necessarily unlocked by close dissection. In its ordinary use, it speaks of a chance of an event occurring or not occurring which is real - not fanciful or remote. It does not refer to a chance which is more likely than not to occur, that is, one which is 'odds on' or where between nil and certainty it should be placed. A chance which in common parlance is described as 'reasonable' is one that is 'fair', 'sufficient' or 'worth noting'.
28Those observations are equally apt to describe the meaning of 'reasonable likelihood' in s 425 of the LP Act.
Given the serious consequences for a legal practitioner of an adverse determination in the context of disciplinary proceedings, it is necessary for clear and cogent evidence to be provided before the Tribunal that will make a finding of either unsatisfactory professional conduct or professional misconduct; Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42 at [63]. Therefore, although the standard of proof is on the balance of probabilities, the Tribunal must however feel an 'actual persuasion' of the occurrence or existence of a relevant fact when deciding whether it has been made out; Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 (Dixon J).

In relation to each of the complaints, what is the correct and preferable decision?

The Tribunal notes that the written submissions filed by Mr Lund are focussed primarily on finding error in the decision the subject of the review. As noted at [54] of these reasons, a review is conducted by way of hearing de novo, the purpose of which is to produce the correct and preferable decision at the time of the decision upon the review. It is not the role of the Tribunal in a review proceeding to identify whether errors exist in the decision under review; Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83 at [121]. For that reason the Tribunal does not intend to address Mr Lund's concerns where they merely identify alleged errors in the LPCC's decision.

Complaint 1: failure to advise in relation to the defence

Mr Lund made an allegation in relation to the manner in which Mr Brennan conducted his defence in the Magistrates Court proceedings. This allegation appears to incorporate a number of suballegations and it is therefore useful to address each sub-allegation separately.

Expert evidence

Mr Lund alleged to the LPCC that Mr Brennan, prior to trial, had failed to identify that expert evidence was required to support his defence and that Mr Brennan failed to locate and prepare the required expert witness in a timely manner. When Mr Brennan ultimately did seek to call an expert witness, his request to adjourn the trial for that purpose was refused.
Mr Brennan had initially considered retaining Dr B in order to provide expert opinion on the effects of tasering on Mr Lund in order to explain that his acts following being tasered, the subject of the Police Charges, were beyond his control based on a defence of incapacity/uncontrollable actions pursuant to s 23A of the Criminal Code. This defence was not pursued.
Mr Brennan's position was that his preparation for trial in relation to establishing the fact that Mr Lund had been tasered to the chest, focussed on the discovery of technical data from the Commissioner of Police, the oral evidence of Mr Lund and the written medical opinion of Dr A, together with the contemporaneous photographs of Mr Lund's injuries. Once the medical report of Dr A was discredited, Mr Brennan initiated urgent steps to obtain expert evidence from Dr B.
Mr Lund, however, alleges that he expressly instructed Mr Brennan to obtain expert evidence from Dr B in relation to an assessment of the chest injuries and whether they were sustained as a result of being tasered to that region. In this regard Mr Lund relies on an email sent on 4 June 2010 to Mr Brennan as follows:
…
In other news, I have located a suitability qualified medical expert in the United Kingdom, who has experience in writing medico-legal reports for this sort of thing.
We would need to work out exactly what issues need to be addressed and then you'd instruct him as a medical expert. So we must first obtain the relevant evidence and then provide it along with instructions to him, so he can prepare a report addressing the issues. I may get my own doctor to liaise with him as well. However I am still beating the drum for an appropriately qualified medical expert closer to home.
(LPCC's bundle page 298)
Although the LPCC had some concerns that Mr Brennan did not take steps prior to trial to confirm the veracity of the Dr A report, they accepted that it was only during trial that it became clear that the expert evidence of Dr B may be required; LPCC's reasons para 28. The LPCC therefore concluded that there was an insufficient basis to support the complaint being made by Mr Lund and found that there was no reasonable likelihood that Mr Brennan would be found guilty of unsatisfactory professional conduct or professional misconduct; LPCC's reasons para 37.
In the Tribunal's view, the email sent from Mr Lund to Mr Brennan referred to at [64] of these reasons did not instruct Mr Brennan in unequivocal terms to retain Dr B to provide an expert report assessing the nature of Mr Lund's chest wounds and whether they were wounds consistent with having been tasered. Indeed, the correspondence does not even identify Dr B specifically. The email also noted that there was a continuing need to obtain the 'relevant evidence' and to identify 'what issues' needed to be addressed. Mr Lund also informed Mr Brennan in this correspondence that he was still trying to locate a suitably qualified medical expert 'closer to home'. In the Tribunal's view, therefore, it cannot be said that this correspondence evidences an express instruction given to Mr Brennan which he failed to follow.
Mr Lund alleges, in addition, that he orally instructed Mr Brennan to obtain the expert report from Dr B in March 2011.
However, the Tribunal notes that there is no documentary evidence before it which corroborates this allegation. In particular, there is no file note prepared by Mr Brennan in March 2011 to support this position, and there is no contemporaneous correspondence either from Mr Lund or from Mr Brennan in which such an instruction was confirmed. In the Tribunal's view, given the significance of such an instruction, the absence of any correspondence confirming it, or following up the lack of action in respect of it, lends weight to a finding that the instruction was not given.
Whilst in the Tribunal's view, and with the benefit of hindsight, it may have been prudent to obtain such expert evidence earlier in time, it does not accept that there is sufficient evidence to support a finding that Mr Brennan failed to meet the appropriate standard of competence and diligence expected of a practitioner with his level of experience.
The Tribunal is also not persuaded, for the reasons articulated above, that Mr Brennan failed to follow express written or oral instructions to obtain an expert report from Dr B.

RPH evidence

Mr Lund alleged that Mr Brennan failed to locate and prepare, in a timely manner or at all, as defence witnesses RPH medical practitioners, Dr H, Dr A and Dr Mc, in circumstances where the witnesses were subsequently not available to be called at trial.
In response to this allegation, Mr Brennan submitted to the LPCC that he had identified that the only relevant RPH doctor who could corroborate Mr Lund's version of events, was Dr A. During the adjourned trial, Mr Brennan contacted Dr A but discovered at that time that he was unable to corroborate Mr Lund's evidence as he had no experience with taser wounds and therefore he was not pursued as a witness; LPCC's bundle page 523.
The LPCC considered that Dr H and Dr Mc could not provide evidence to support the defence. In respect of Dr A, the LPCC noted that Mr Brennan contacted Dr A during an adjournment of the trial and if he was able to provide useful evidence, there was opportunity to present that new material to the Magistrate. However, following Mr Brennan's discussions with Dr A, it became clear that he was unable to assist the defence; LPCC's reasons paras 30 and 31.
The LPCC therefore concluded that there was an insufficient basis to support the complaint being made by Mr Lund and found that there was no reasonable likelihood that Mr Brennan would be found guilty of unsatisfactory professional conduct or professional misconduct; LPCC's reasons para 37.
In Mr Lund's written submissions he notes that this aspect of the complaint is essentially that Mr Brennan was 'clearly instructed in 2010 and subsequently to contact the examining doctors and failed to do so'; Mr Lund's written submissions para 120.
In relation to a consideration as to whether Mr Brennan lacked the requisite degree of competency and diligence in preparing Mr Lund's defence by his failure to contact the RPH doctors and arrange for them to give evidence at trial, the Tribunal notes the following:
(a)Dr H's notes dated 14 June 2009 make no reference whatsoever to any injuries to Mr Lund's chest; Mr Lund's bundle page 8. When Mr Brennan spoke with Dr H he confirmed with him that he did not observe chest marks and that he had no experience with taser wounds; LPCC's bundle page 511;
(b)Dr Mc was a junior medical officer at the RPH Emergency Department when Dr A examined Mr Lund on 16 June 2009 and thus was unlikely to have had the experience or knowledge to be able to assist the defence; and
(c)although Dr A was contacted late, being on 3 April 2012, he informed Mr Brennan that he had no recollection of Mr Lund as a patient and that he was not a specialist in identifying taser injuries. Dr A further noted that the reference to 'taser gun' in his 16 June 2009 letter was made purely on the basis that Mr Lund had informed him that he had been tasered, not on the basis that Dr A had identified that Mr Lund had suffered taser injuries; LPCC's bundle page 523.
Mr Lund appears to contend that Dr A was not truthful and that if he had been called as a witness at the trial and placed under oath, he may have given different evidence; Mr Lund's written submissions para 120.

We do not accept Mr Lund's submission in this regard. In the Tribunal's view it was entirely appropriate for Mr Brennan not to pursue Dr A as a witness in circumstances where he had informed Mr Brennan that he did not have the requisite specialist knowledge required in order to assist the defence. To summons Dr A as a witness would simply have added further unnecessary time and costs for no beneficial outcome.
In relation to the allegation made by Mr Lund that Mr Brennan was expressly instructed to summons the RPH doctors to give evidence, it appears that Mr Lund is relying on his 12 March 2010 letter to Mr Brennan which stated as follows:
It is also necessary to summons medical evidence due to injuries I received, and [NB's] state of mind, past history and capabilities.
I attended at Royal Perth Hospital twice, and also my local doctor regarding my injuries. I also spoke to a Psychiatrist about the situation with [NB] a few days before the incident.
(LPCC's bundle pages 246-249)
Mr Brennan responded on 26 March 2010 as follows:
To corroborate the injuries you assert were inflicted upon you by [NB], that evidence can only be given by the doctor who examined you at Royal Perth Hospital. This doctor can be summonsed, if available, but it would be at considerable cost and expense. On balance, if you were going to be believed as to your version of events, the addition of medical evidence would probably, little progress your defence.
(LPCC's bundle pages 252-254)
It is clear that the correspondence relied upon by Mr Lund in respect of this aspect of his complaint, was not directed to calling the RPH doctors as witnesses in respect of corroborating that his chest wounds were caused by a taser. The correspondence in the Tribunal's opinion is directed at considering whether records could be summonsed to support Mr Lund's assertion that NB assaulted him, rather than the reverse scenario. The correspondence does not clearly, in our view, evidence an express instruction given by Mr Lund requiring those doctors to be summonsed in order to give evidence on the alleged taser chest wounds.
Therefore the Tribunal does not find that the alleged express instruction was given to Mr Brennan and it follows that the Tribunal is unable to find that he failed to follow an express instruction in this regard.
In addition, the Tribunal is of the view that Mr Brennan's conduct in respect of the RPH witnesses does not evidence a lack of competency or diligence on his part.

Medical records

Mr Lund alleged to the LPCC that Mr Brennan failed to provide discovery of his medical records from RPH, such records which would have supported his defence in relation to the chest injuries he had sustained during the incident.
The LPCC found that Mr Brennan had acted appropriately in relation to the medical records obtained from RPH given that he had considered and relied on those documents in the preparation of Mr Lund's defence and therefore there was no reasonable likelihood that Mr Brennan would be found guilty of unsatisfactory professional conduct or professional misconduct; LPCC's reasons para 37.
It does not appear to the Tribunal that Mr Lund is seeking a review of the LPCC's decision in relation to this aspect of his complaint given that it does not appear to be addressed by Mr Lund in his written submissions. In any event, the Tribunal agrees with the conclusion of the LPCC on this issue.

Police records and systems

Mr Lund alleged to the LPCC that Mr Brennan failed to:
(a)issue and serve a subpoena for the police Unit Occurrence Books where the documentation was required to support Mr Lund's defence;
(b)properly ascertain the procedures and systems for the procurement and management of taser assets at the WA Police; and
(c)properly ascertain operational policies and practice, including accountability mechanisms, in respect of taser assets held by the WA Police.
In respect of this complaint the LPCC found that Mr Brennan appropriately issued a number of summonses to WA Police seeking production of the relevant documents and that Mr Brennan in his conduct of the defence appeared to be well aware of the matters set out in sub paragraphs (b) and (c) above and therefore there was no reasonable likelihood that Mr Brennan would be found guilty of unsatisfactory professional conduct or professional misconduct; LPCC's reasons para 37.
Again, it appears to the Tribunal that Mr Lund is not seeking to review this part of the LPCC's decision given that it is not addressed in Mr Lund's written submissions. In any event, the Tribunal agrees with the LPCC's conclusion on this issue.

Mr Lund's medications

Mr Lund alleged that Mr Brennan failed to obtain a medical report as to the interactions between the alcohol consumed by Mr Lund at the relevant time and Mr Lund's prescribed medications.
The LPCC found that there was an insufficient basis to support this claim and therefore there was no reasonable likelihood that Mr Brennan would be found guilty of unsatisfactory professional conduct or professional misconduct; LPCC's reasons para 37.
The Tribunal notes that it appears that Mr Lund is not seeking review of this part of the LPCC's decision given that his written submissions do not refer to it. Once more, if a review on this point is in fact sought, the Tribunal agrees with the LPCC's conclusion on this issue.

Conclusion

In conclusion, the Tribunal's view is that the correct and preferable decision is that there is no reasonable likelihood that Mr Brennan would be found guilty of unsatisfactory professional conduct or professional misconduct arising from this complaint.

Complaint 2: failure to competently represent Mr Lund at trial

As with complaint 1, this complaint is comprised of a number of separate allegations. We will deal with each sub-allegation in the order in which they appear in the decision under review.

Veracity of police evidence

Mr Lund alleged that Mr Brennan failed to competently represent him at trial by failing to question the veracity of the prosecution's evidence.
The LPCC noted from a review of the trial transcript that Mr Brennan did indeed extensively cross-examine the various prosecution witnesses over the first eight days of the trial. The LPCC further noted that there was nothing to indicate, by way of judicial comment or otherwise, that the police evidence was false and that due to Mr Brennan's crossexamination of the witnesses, this falsity did not come to light; LPCC's reasons para 39.
The Tribunal notes that Mr Lund does not appear to seek to review of this part of the LPCC's decision, given that his written submissions do not make reference to it. Again, if such a review has been sought, the Tribunal agrees with the LPCC's conclusion.

Running transcript

Mr Lund alleged that Mr Brennan failed to properly apply for a running transcript of the trial and required him to produce handwritten notes during each day of the trial and then type written summaries of those notes each following day.
The LPCC found that there was no evidence to support Mr Lund's claim that Mr Brennan's failure to obtain a running transcript of the proceeding was as a result of his conduct or the manner in which he made the application; LPCC's reasons para 41.
It does not appear to the Tribunal that Mr Lund is seeking to review this aspect of the LPCC's decision given that his written submissions make no reference to it. To the extent that such a review is in fact sought, the Tribunal agrees with the LPCC's conclusion.

Failure to adduce evidence

Mr Lund alleged that Mr Brennan failed to properly adduce evidence required to prove the defence including the evidence of three RPH doctors and expert evidence from Dr B.
The LPCC found that there was no evidence on which to support a finding that the failure to adduce evidence from the RPH doctors amounted to a disciplinary breach by Mr Brennan; LPCC's reasons paras 42, 44 and 45. In respect of Mr Brennan's conduct in relation to obtaining expert evidence from Dr B, the LPCC's findings are referred to at [65] of these reasons.
The LPCC found that there was an insufficient basis to support this complaint and therefore there was no reasonable likelihood that Mr Brennan would be found guilty of unsatisfactory professional conduct or professional misconduct; LPCC's reasons para 55.
We have already considered this issue and agree with the LPCC's conclusions.
In respect of the evidence of Dr H and Dr Mc, the Tribunal reiterates its earlier observation that neither medical practitioner was in a position to provide evidence of assistance to Mr Lund's defence. It could not therefore, in our view, be found that the failure to call them as witnesses at trial evidenced a lack of competency or due diligence on the part of Mr Brennan.
The Tribunal accepts, in respect of Dr A, that enquiries could have been made at an earlier point in time. However, Dr A was contacted during an adjournment period by Mr Brennan and it became clear at that time that Dr A would not be able to provide evidence in support of Mr Lund's defence (see [72] of these reasons and the LPCC's bundle page 523). Thus whilst the Tribunal agrees with Mr Lund's submission that Mr Brennan could have taken steps to ascertain what evidence Dr A would be able to provide at an earlier point in time, the Tribunal does not accept the submission that the delay in contacting Dr A would support a finding of lack of competency on the part of Mr Brennan.
The Tribunal also does not accept that Mr Brennan's delay in seeking to obtain an expert report from Dr B evidences lack of competency on his part. This is because:
(a)at all times Mr Brennan was acting on the belief, consistent with the instructions from Mr Lund as he understood them, that the evidence of Mr Lund, together with the photographic evidence and the discharge letter from Dr A and the technical disclosure material from the Commissioner of Police, would be sufficient evidence to support the defence in regard to Mr Lund being unlawfully tasered to the chest;
(b)given the above, Mr Brennan was concerned about additional costs of retaining an overseas expert witness given considerations of quantum versus benefit to be derived. This was clear from Mr Brennan's correspondence to Mr Lund; LPCC's bundle page 253.
(c)there was no specific instruction given by Mr Lund to Mr Brennan to retain an expert witness for this purpose (see [68] of these reasons);
(d)given that Dr A had had the benefit of physically examining the chest wounds, it was an appropriate course of action to prefer his report rather than an overseas expert who had not physically inspected the injuries at the time that they were sustained;
(e)in any event the expert report obtained from Dr B for use in Mr Lund's appeal was shown to be of minimal or no benefit to Mr Lund's defence; Lund at [91]; and
(f)at the time that the report of Dr A was ruled as inadmissible, Mr Brennan urgently took steps to obtain the expert report from Dr B on the basis that at that stage it appeared to be necessary for Mr Lund's defence.
In the Tribunal's view, taking into consideration all of the above matters, there is insufficient evidence to support a finding that Mr Brennan did not meet the requisite standard of competence and diligence expected of a practitioner with his level of experience.

Audio-visual materials

Mr Lund alleged that Mr Brennan failed to make the requisite arrangements to play audio-visual materials in the Magistrates Court.
The LPCC found this allegation to be lacking in substance and noted that there was no suggestion that there was any substantive issue with the audio system on which the relevant recordings were played to the Magistrates Court; LPCC's reasons para 47.
The Tribunal notes that it appears that Mr Lund is not seeking to review this part of the LPCC's decision on the basis that it is not addressed in his written submissions. As before, it is in any event the Tribunal's view that the LPCC's decision on this issue is correct.

Complaint against police

Mr Lund alleged that Mr Brennan advised him not to file a complaint with the Police Internal Affairs Unit and the CCC until completion of the trial.
The LPCC determined that the advice given to Mr Lund by Mr Brennan in his 24 January 2012 email ([36] of these reasons) was properly provided and the LPCC considered it was reasonable and prudent for Mr Brennan to advise Mr Lund to refrain from filing a complaint; LPCC's reasons para 49.
It does not appear to the Tribunal that Mr Lund is seeking to review this aspect of the LPCC's decision given that his written submissions make no reference to it. Once more, it is in any event the Tribunal's conclusion that the LPCC's decision on this point is correct.

Outstanding disclosure

Mr Lund alleged that Mr Brennan advised him to proceed to trial notwithstanding that there were outstanding disclosure issues.
Mr Brennan submitted to the LPCC that he considered at the time that the matter proceeded to trial, that there had been sufficient disclosure.
The LPCC accepted this submission and also noted that on appeal McLure P found that there was no disadvantage suffered by Mr Lund by the introduction of late evidence; Lund Appeal at [31].
Once again, while it does not appear to the Tribunal that Mr Lund is seeking to review this aspect of the LPCC's decision given that his written submissions make no reference to it, the Tribunal agrees with the LPCC's conclusion on this issue.

False evidence

Mr Lund alleged that Mr Brennan advised him to give evidence at the trial to the effect that his personal details were provided to the police upon request, in circumstances where Mr Brennan knew that the evidence was not true.
The LPCC noted that there was no evidence to support this allegation and accepted Mr Brennan's submission that he did not advise Mr Lund to fabricate evidence; LPCC's reasons para 53.
Again, while it does not appear to the Tribunal that Mr Lund is seeking to review this aspect of the LPCC's decision given that his written submissions make no reference to it, the Tribunal agrees with the LPCC on this point.

Dr A's evidence

Mr Lund alleged that Mr Brennan advised him to give evidence at the trial that he identified Dr A by way of his identification card and that he saw him draw a diagram of his injuries in the medical records.
The LPCC considered that there was no evidence to suggest that Mr Brennan advised Mr Lund to include this statement in his proof of evidence without any basis or to suggest that Mr Brennan allowed the evidence to be included in the proof knowing or suspecting that it was false; LPCC's reasons para 54.
Once more, while it does not appear to the Tribunal that Mr Lund is seeking to review this aspect of the LPCC's decision given that his written submissions make no reference to it, the Tribunal agrees with the LPCC's conclusion on this point.

Conclusion

On the basis of the above, the Tribunal's view is that there is no evidence to support a finding of lack of competency or due diligence on the part of Mr Brennan in respect of his representation of Mr Lund at trial. Therefore the Tribunal considers that the correct and preferable decision is that there is no reasonable likelihood that Mr Brennan would be found guilty of unsatisfactory professional conduct or professional misconduct arising from this complaint.

Complaint 3: failing to provide legal services in a timely manner

Mr Lund alleges that Mr Brennan failed to take all reasonable and practicable steps to ensure that legal services were provided in a timely manner by requesting, in March 2011, that the trial be listed for five days and then extended to 10 days which was contrary to his instructions.
Mr Lund also alleged that he expressly instructed Mr Brennan to reduce the number of trial days and that examining 14 police officers would not assist the defence.
Mr Brennan submitted to the LPCC that it was a reasonable preestimate that the trial would require 10 days and that previous trial estimates were made before the scope of the trial and the prosecution disclosure and evidence became known.
The LPCC found that although a 10 day trial for the relevant charges was unusual, Mr Brennan had nevertheless acted appropriately and consistently with Mr Lund's instructions; LPCC's reasons para 58. Therefore the LPCC was of the view that there was no reasonable likelihood that Mr Brennan would be found guilty of unsatisfactory professional conduct or professional misconduct: LPCC's reasons para 59.
It appears to the Tribunal that Mr Lund is effectively contending that Mr Brennan artificially extended the trial dates. However, in the Tribunal's view there was no evidence to support such a contention. For example, the constant summonsing for further evidence from the Commissioner of Police resulted in a voluminous evidential situation which added to the complexity and time of the trial.
In the Tribunal's view the correspondence from Mr Lund to Mr Brennan makes it clear that he was constantly seeking further and better disclosure and thus contributed to the situation he ultimately found himself in in respect to the complexity, delay and length of the trial; LPCC's bundle pages 286, 291292, 295-298, 304-306, 312, 316, 317-318, 324, 393, 402 and 406.
Indeed, an email from Mr Lund to Mr Brennan in January 2012 evidences Mr Lund's clear priority on disclosure from the Commissioner of Police rather than a focus on moving to trial as quickly as possible:
… I am happy to pay you a further deposit towards the trial but I want you to have the trial date vacated. The Police clearly need more time to sort themselves out regarding the apparent disclosure difficulties that they're having, and conduct internal investigations as may be necessary.
The outcome of the impending trial will have a significant effect on my future, any which way. I believe that their actions at the incident has already had a permanent effect on the rest of my life. So it is imperative that the alleged discrepancies are resolved, between my version of events and that of particular members of the Police Service[.]
Personally, I want to get the matter dealt with just as much as anyone, but I shall be forced to suffer further distress if the Police can't get their act together and provide proper disclosure, or conduct a proper investigation into the many discrepancies that are now readily apparent[.]
(LPCC's bundle page 406)
In addition, given Mr Lund's instructions to Mr Brennan that it was his belief that the police officers had given false evidence, it was necessary to call those witnesses, consistent with those instructions.
In this regard Mr Brennan wrote to Mr Lund on 26 July 2010 and stated as follows:
We confirm you have provided us with voluminous and detailed written and oral instructions in respect of potential cross-examination and submissions, with a view to discrediting the police version of events.
(LPCC's bundle pages 304-305)
In light of the above considerations, the Tribunal is of the view that the correct and preferable decision is that there is no reasonable likelihood that Mr Brennan would be found guilty of unsatisfactory professional conduct or professional misconduct arising from this complaint.

Complaint 4: 29 March 2011 adjournment

Mr Lund alleged that on or about 29 March 2011 Mr Brennan sought an adjournment of the trial for a period of nearly a year in circumstances where he was not instructed to do so and where he sought to use Mr Lund's medical condition as the reason for seeking the adjournment without any reasonable basis.
To the extent that Mr Lund now alleges that Mr Brennan 'knowingly misled the court' in respect to seeking the relevant adjournment (para 238 of Mr Lund's written submissions), the Tribunal notes that this is a new allegation which was not considered by the LPCC and therefore it does not form part of the Tribunal's jurisdiction on review; Chinnery and Legal Profession Complaints Committee [2013] WASAT 79 at [13]; SJX and Legal Profession Complaints Committee [2012] WASAT 154 at [17]. The Tribunal therefore does not intend to address that allegation.

Mr Brennan submitted that the trial was adjourned on 29 March 2011, upon Mr Lund's specific instructions and based on Dr DJ's report which he had been instructed to provide to the Magistrates Court.
Mr Lund submitted to the Tribunal that the medical report was only obtained on the advice and direction of Mr Brennan and his 'forceful insistence'; Mr Lund's written submissions para 192.
The LPCC found that the adjournment request was made on the instructions of Mr Lund and was properly supported by medical evidence; LPCC's reasons paras 62 and 63. The LPCC therefore found that there was no reasonable likelihood that Mr Brennan would be found guilty of unsatisfactory professional conduct or professional misconduct; LPCC's reasons para 64.
The Tribunal accepts the contents of Mr Brennan's 29 March 2011 email to Mr Lund as accurately reflecting the contemporaneous notes of the telephone discussion that they had on the previous day; LPCC's bundle pages 353-354. That email noted that Mr Lund had informed Mr Brennan that he was suffering symptoms of insomnia, stress and depression and that he was unable to provide instructions in final form. The email noted that due to Mr Lund's inability to instruct Mr Brennan, he would be greatly challenged in presenting his case adequately. The correspondence confirmed Mr Lund's intent to obtain a report from a psychiatrist in order to provide it to Mr Brennan for the purpose of seeking to vacate the trial which was due to commence on 11 April 2011.
The correspondence sent from Mr Brennan to Mr Lund was corroborated by Mr Lund's subsequent action in attending at Dr DJ's offices and obtaining the 29 March 2011 medical letter; LPCC's bundle page 352. The medical letter noted that Mr Lund had a number of diagnoses and mental health issues. The letter also stated that Mr Lund was unable to give Mr Brennan instructions in final form and that it would take several months before he was emotionally and mentally well enough to properly address the issues at hand.
There is no evidence before the Tribunal on which it could find that the letter prepared by Dr DJ contained false information or was simply produced upon request rather than following a proper and professional assessment of Mr Lund's mental health presentation by Dr DJ. It seems unlikely to the Tribunal that Dr DJ would simply provide such a letter upon request without genuinely holding the opinions contained within it.
Further, the Tribunal notes that at no time did Mr Lund dispute the accuracy of Mr Brennan's record of the telephone discussion on 28 March 2011 which he conveyed to him in the 29 March 2011 email. If it was indeed inaccurate in respect of the conversation that they had had, or failed to properly reflect Mr Lund's instructions to Mr Brennan, then the Tribunal would have expected Mr Lund to have corrected those misapprehensions by reply email or by some other form of communication. No such actions were taken by Mr Lund.
The Tribunal therefore finds, on a balance of probabilities, that the telephone conversation which occurred in March 2011 was in accordance with the contemporaneous record prepared by Mr Brennan.
In all of the circumstances therefore the Tribunal is of the view that the correct and preferable decision is that there is no reasonable likelihood that Mr Brennan would be found guilty of unsatisfactory professional conduct or professional misconduct arising from this complaint.

Complaint 5: 23 March 2012 adjournment

Mr Lund alleged that on or about 22 March 2012, during the trial, Mr Brennan sought an adjournment, despite express instructions from Mr Lund not to do so and where he again sought to use Mr Lund's medical condition without any reasonable basis.
Mr Brennan submitted to the LPCC that the adjournment application was made on the basis of Mr Lund's specific instructions and due to his medical condition.
The LPCC found that the request to adjourn was made by the express instruction of Mr Lund on the basis of his medical condition. The LPCC found that the submissions made by Mr Brennan in court were reasonable and pragmatic and there was no reasonable likelihood that Mr Brennan would be found guilty of unsatisfactory professional conduct or professional misconduct; LPCC's reasons paras 66 and 67.
Based on the evidence before the Tribunal, it is clear that on 22 March 2012 Mr Lund met with Mr Brennan and was presenting as quite unwell. Mr Lund's own contemporaneous notes on that day stated that he could 'not do anything' and started to 'fall asleep'. Mr Lund also stated in his contemporaneous notes that he was 'exhausted' and due to the way he was feeling he 'urgently attended [his] psychiatrist'; LPCC's bundle page 491.
On 22 March 2012 Mr Lund attended his general practitioner (LPCC's bundle page 489) and also attended his psychiatrist, Dr DJ; LPCC's bundle page 488.
Dr DJ again prepared a letter for the purpose of seeking an adjournment of the trial which listed Mr Lund's various diagnoses and mental health issues and also reported that Mr Lund had informed him that he was attending court but 'feeling very exhausted and overwhelmed' and that he would have 'difficulty presenting the complex facts relevant to the case and instructing his lawyer accordingly'; LPCC's bundle page 488. The letter prepared by Dr DJ appears to have been prepared following a detailed conversation and examination of Mr Lund on that day. It contained verbatim quotes from Mr Lund.
There is no evidence before the Tribunal to suggest that Mr Lund gave Mr Brennan express instructions not to seek an adjournment or to the effect that 'he [was] well enough to proceed with the trial'; Mr Lund's written submissions para 207. Indeed, the Tribunal's interpretation of the relevant documents suggest anything but a position that Mr Lund was well enough to proceed with the trial. Mr Lund himself recorded the following at the time:
(a)he could not do anything and began to fall asleep; LPCC's bundle page 491;
(b)realised he was utterly exhausted and so went to bed; LPCC's bundle page 491;
(c)because of how he was feeling he urgently needed to see his psychiatrist; LPCC's bundle page 491;
(d)was feeling very exhausted and overwhelmed; LPCC's bundle page 488;
(e)had difficulty presenting complex facts relevant to the case and instructing his lawyer; LPCC's bundle page 488; and
(f)the court proceedings were placing significant stress on him; LPCC's bundle page 488.
None of that is consistent with the submission now being made by Mr Lund that he had instructed Mr Brennan that he was well enough to proceed with the trial.
The Tribunal's interpretation of the evidence is consistent with the position that Mr Brennan has submitted to the LPCC, that is, that Mr Brennan was instructed to seek an adjournment on the basis of Mr Lund's medical presentation. There is no evidence before the Tribunal inconsistent with that position.
In conclusion the Tribunal considers that the correct and preferable decision is that there is no reasonable likelihood that Mr Brennan would be found guilty of unsatisfactory professional conduct or professional misconduct arising from this complaint.

Complaint 6: 16 April 2012 adjournment

Mr Lund alleged that on or around 16 April 2012 Mr Brennan sought an adjournment of the trial in order to allow him to obtain expert evidence from Dr B.
The basis of this particular allegation is unclear. The LPCC interpreted the complaint as an allegation that Mr Brennan failed to obtain the adjournment of the trial on 16 April 2012 so as to allow the defence to produce evidence from Dr B. However the LPCC found that there was no evidence to support a finding that Mr Brennan lacked competency in respect to the manner in which he sought the adjournment; LPCC's reasons para 71.
It appears to the Tribunal, however, that Mr Lund is seeking to raise the same concern in respect to the request for the April 2012 adjournment as was raised in respect to the other two adjournment requests. That is, that Mr Brennan had directed him to obtain medical evidence which lacked veracity in order to seek an adjournment, thereby intentionally misleading the court. As the Tribunal has noted at [137] of these reasons, there was no express allegation made by Mr Lund against Mr Brennan in respect of intentionally misleading the court and therefore the Tribunal cannot address such an allegation on review.
On the other hand, if this complaint is based on an allegation that Mr Brennan inappropriately directed Mr Lund to obtain medical evidence in circumstances where he knew or ought to have known that Mr Lund was fit for trial, then the Tribunal does not accept such a submission. This is for the following reasons:
(a)Mr Lund and Mr Brennan had a telephone conversation on 13 April 2012 during which Mr Brennan's contemporaneous notes identify that Mr Lund informed him that he would see Dr DJ on Saturday to obtain a view as to whether Mr Lund was 'up to' crossexamination and that if he was able to be crossexamined then that cross-examination would take place on Monday; LPCC's bundle page 512. There is nothing in the contemporaneous notes of the telephone conversation which supports the contention that Mr Brennan was directing Mr Lund to obtain a medical report in order to support a request to adjourn.
(b)Following Mr Lund's attendance on Dr DJ, Dr DJ prepared a letter dated 14 April 2012 addressed to Mr Brennan noting Mr Lund's mental and physical exhaustion and sleep difficulties and recording Dr DJ's significant concerns about the overall effects of continued stress upon Mr Lund's psychological state; LPCC's bundle page 518.
(c)Mr Lund and Mr Brennan had a telephone conversation on 14 April 2012 during which they discussed the possibility of requesting an adjournment on the basis of metal health concerns; LPCC's bundle page 518.
(d)Ultimately Mr Brennan did not make any request for an adjournment on the basis of medical grounds.
On the basis of the above evidence it appears to the Tribunal that it was Mr Lund who informed Mr Brennan that he wished to see his psychiatrist. Mr Brennan was simply awaiting the outcome of that examination to see whether it would have an impact on the timing of Mr Lund's cross-examination at trial. Ultimately Mr Brennan did not rely on the letter obtained from Dr DJ to seek an adjournment of the trial.
In all of the circumstances therefore the Tribunal considers that the correct and preferable decision is that there is no reasonable likelihood that Mr Brennan would be found guilty of unsatisfactory professional conduct or professional misconduct arising from this complaint.

Complaint 7: disclosure of confidential information

Mr Lund alleged that Mr Brennan disclosed his confidential medical information to the Magistrates Court on 22 March 2012 without any express or implied authority.
Mr Brennan submitted to the LPCC that he had the express authorisation of Mr Lund to disclose the medical information both to the Magistrates Court and to the prosecution. The LPCC accepted that submission; LPCC's reasons para 72. The LPCC therefore found that there is no reasonable likelihood that Mr Brennan would be found guilty of unsatisfactory professional conduct or professional misconduct; LPCC's reasons para 73.
The Tribunal in any event does not understand that Mr Lund is seeking review of this part of the LPCC's decision given that his written submissions do not refer to it. If this is correct, then the Tribunal does not intend to comment on this finding. If, however, Mr Lund is in fact pressing this issue then the Tribunal considers that the LPCC's decision is correct.

Complaint 8: conspiring with RPH

Mr Lund alleged that Mr Brennan had conspired with an RPH employee to fabricate evidence for the purpose of satisfying s 79C(2)(d) of the Evidence Act in relation to the evidence sought to be secured from the medical practitioners who had attended upon Mr Lund following the incident.
The LPCC noted that Mr Lund did not provide any evidence to support this claim of conspiracy and that it was strenuously denied by Mr Brennan; LPCC's reasons paras 74 and 75. The LPCC was of the view that there was no reasonable likelihood that Mr Brennan would be found guilty of unsatisfactory professional conduct or professional misconduct; LPCC's reasons para 76.
The Tribunal notes that it appears that Mr Lund is not seeking review of this part of the LPCC's decision given that his written submissions do not refer to it. The Tribunal therefore does not intend to comment on this finding. If, however, we are incorrect about this, then the Tribunal considers that the LPCC's decision is correct.

Complaint 9: failed to provide adequate costs disclosure

Mr Lund alleged that Mr Brennan failed to provide adequate costs disclosure as required by s 260 and s 262 of the LP Act by:
(a)failing to refer to the applicable costs determination in the costs agreement dated 10 February 2010 in that the costs agreement referred to the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 and the Legal Practitioners (Magistrates Court) (Civil Jurisdiction) Determination 2008 in circumstances where the proceedings were heard in the criminal jurisdiction of the Magistrates Court and as such the Legal Practitioners (Magistrates Court) (Criminal Jurisdiction) Determination 2008 and the Legal Practitioners (Magistrates Court) (Criminal Jurisdiction) Determination 2010 would apply;
(b)failing to include an estimated range of costs that may be recoverable or that Mr Lund may be ordered to pay in a litigious matter (s 260(1)(f) and s 260(4) of the LP Act); and
(c)failing to fully and adequately explain the terms of the costs agreement to Mr Lund.
In respect to sub paragraph (a) above, it was clear that this error had been made by Mr Brennan. He submitted to the LPCC that it was simply an oversight. The LPCC found that although Mr Brennan did refer to the wrong Magistrates Court Scale of Fees in the costs agreement, they were satisfied that he had provided an initial costs estimate as required and there was therefore substantial compliance with s 260 costs disclosure requirements during the initial instruction period of the matter; LPCC's reasons para 80.
It appears that Mr Lund is not seeking to review this aspect of the complaint given that his written submissions do not address it. Therefore the Tribunal does not intend to comment on this particular finding. We consider though that the LPCC's approach is correct.
In relation to the allegation contained in para (b) above, in respect of providing an estimated range of costs to Mr Lund, the Tribunal notes that the following disclosures were made by Mr Brennan:
(a)On 1 February 2010 Mr Lund was informed that the estimate of fees was $17,600, being $4,000 per day, plus GST; LPCC's bundle pages 239-240. He was also given a costs agreement which notified him that he would be charged professional fees calculated at the rate of $450 per hour plus GST (pro rata in six minute time units) and would be charged for paralegal assistance at the rate of $250 per hour plus GST (pro rata in six minute time units) and that he was required by way of security of costs to make a payment in the sum of $5,000; LPCC's bundle pages 241-243.
(b)On 26 March 2010 Mr Lund was informed that after reviewing the voluminous material provided to Mr Brennan by Mr Lund, that it was necessary to provide a revised costs disclosure of a further $5,500; LPCC's bundle pages 252-254.
(c)On 26 July 2010 Mr Brennan informed Mr Lund that his fees would considerably exceed the original cost preestimate and he was unable at that time to provide him with a realistic costs pre-estimate but would do so as soon as possible; LPCC's bundle pages 304-306.
(d)On 26 October 2010 Mr Brennan informed Mr Lund that the matter was very time consuming and financially burdensome; LPCC's bundle pages 331-333.
(e)On 18 November 2010 Mr Brennan wrote to Mr Lund informing him that should the matter proceed to trial for five days he envisaged that it would require preparation of at least three further days and accordingly fees would be in the order of $30,000 plus GST for a five day trial; LPCC's bundle pages 338-339.
(f)On 18 February 2011 Mr Brennan informed Mr Lund that his professional fees would comprise $4,000 per day plus GST for the 10 days getting up the case and trial and requested payment for preparation for trial in the amount of $22,000. He also noted that it was a considerable investment on Mr Lund's part and confirmed his advice that he wished to proceed to trial notwithstanding the costs; LPCC's bundle pages 342343.
(g)On 1 April 2011 Mr Brennan advised Mr Lund that the trial date had been vacated and that substantial further getting up case for trial was required but that work would be carried out at no further fee to Mr Lund. He was also informed him that the 10 day trial would require professional fees of $44,000 inclusive of GST; LPCC's bundle pages 358-359.
(h)On 16 January 2012 Mr Brennan informed Mr Lund that he had not sought or required professional fees in relation to getting up the matter for trial and that services rendered over the last nine months had been rendered gratuitously. He informed Mr Lund that the trial fees to defend the matter would comprise the sum of $44,000; LPCC's bundle page 400.
In the Tribunal's view, it is clearly apparent that Mr Brennan was continually taking steps to revise the initial costs estimates as he became aware of the need for further trial preparation and extended trial dates. In the Tribunal's view the evidence does not support the contention of Mr Lund that there was a failure to provide a costs disclosure.
In relation to this particular allegation, Mr Lund's written submissions at paras 10-44 appear to allege a number of anomalies or discrepancies in the costs disclosures provided and the payments being made by Mr Lund. The submissions are almost, in the Tribunal's view, akin to submissions which would be made in a costs assessment or taxing matter. They are not, in the Tribunal's view, relevant to a consideration by the Tribunal as to whether Mr Brennan has complied with ss 260(1)(f) and (4) of the LP Act. Those considerations are entirely different. In the Tribunal's view it would have been more appropriate for Mr Lund to have applied to have the costs formally assessed at the conclusion of the Magistrates Court proceedings. He did not do so.
Mr Lund also appears to be alleging that, in the context of this allegation, Mr Brennan invoiced an excessive amount of legal costs in contravention of s 404(b) of the LP Act.
The Tribunal needs to consider in this regard whether the costs charged in the Magistrates Court proceedings by Mr Brennan grossly exceeded those that would have been charged by a legal practitioner of good repute and competency. As identified by Ipp J in D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198 at 214, this requires a consideration of:
…the amount at which the costs in question was or would likely be taxed, the difficulty of the case, the novelty or complexity of the legal issues presented, the experience of the practitioner, the quality of his or her work, the amount of time spent by the practitioner on the matter, the responsibility involved, the amount or value of the subject matter in issue, and any costs agreement that might have been entered into.
The LPCC acknowledged that a significant amount of fees had been charged in the matter, in excess of $126,000, but that it considered that there was insufficient evidence to support the claim that Mr Brennan failed to provide adequate costs disclosure and revised costs disclosure and charged excessive fees for the conduct of the proceeding that were not justified; LPCC's reasons para 88.

In the Tribunal's view it is unlikely that a finding of excessive charging would be made in respect of Mr Brennan's conduct of the Magistrates Court proceedings for the following reasons:
(a)The matter was technically complex and voluminous from a evidentiary perspective. This is particularly so in relation to the multitude of summonses issued to the Commissioner of Police for evidence of a highly technological nature in relation to the use of tasers.
(b)The hearing was long, being conducted over 12 days, involving a large number of witnesses and the preparation for the hearing was therefore necessarily extensive.
(c)Mr Brennan clearly spent a considerable amount of time on the matter which in the Tribunal's view was appropriately required.
(d)There was a nine month period during which Mr Brennan undertook many hours of preparatory work at no cost to Mr Lund.
(e)There was no adverse comment made by any judicial officer at any stage in relation to inadequacies or failures on the part of Mr Brennan in his conduct of the Magistrates Court proceedings which would suggest a lack of competency or due diligence in the work undertaken by him.
(f)At no stage during the course of the Magistrates Court proceedings did Mr Lund raise concerns in relation to the representation of him by Mr Brennan nor of the fees being incurred. His instructions were always to continue despite the quantum of costs being incurred.
In relation to the allegation by Mr Lund that Mr Brennan failed to fully and adequately explain the terms of the costs agreement to him, Mr Lund submitted to the Tribunal that he was a vulnerable client and was totally reliant on Mr Brennan.
In response to this complaint Mr Brennan submitted to the LPCC that he had no recollection or contemporaneous note recording that he explained the costs agreement to Mr Lund, but that it was his usual practice to do so; LPCC's reasons para 79. Mr Brennan also refuted that Mr Lund was a vulnerable client and noted that he provided cogent and detailed instructions in relation to complex and relevant issues during the course of the Magistrate Court proceeding; LPCC's reasons para 86.
In relation to whether the costs agreement was adequately explained to Mr Lund, Mr Lund alleges that the costs disclosure was never provided to him personally but was simply mailed to him and that he was required to sign it on 10 February 2010 in order for Mr Brennan to act for him. He submits that there was no explanation offered by Mr Brennan at any time as to the meaning of the document.
In the Tribunal's view there was no particular special vulnerability of Mr Lund outside of that which any client would face in respect to understanding a costs agreement. Indeed this position seems to be reflected in Mr Lund's written submissions at para 75 where he noted 'the complainant had no practical understanding of rights and obligations under the costs agreement'. This would be the position of most clients who have never been involved in legal proceedings before. This does not, in the Tribunal's view, add any special or additional obligation on Mr Brennan other than those contained in the relevant provisions of the LP Act.
In the Tribunal's view the documents do not overly assist in determining this allegation. The parties are in agreement that at some point the costs disclosure was provided to Mr Lund together with the costs agreement. Unfortunately neither party made any contemporaneous notes of the discussion in respect to the costs disclosure. Mr Lund contends that it was never explained to him and Mr Brennan refutes that position. In the circumstances the Tribunal agrees with the LPCC's finding that there is simply insufficient evidence to support the Tribunal making a finding that Mr Brennan failed to adequately explain the costs disclosure.
In the Tribunal's view, based on all of the above considerations, the correct and preferable decision in respect of this complaint is that there is no reasonable likelihood that Mr Brennan would be found guilty of unsatisfactory professional conduct or professional misconduct arising from this complaint.

Expression of concern

The LPCC expressed its concern in relation to aspects of Mr Brennan's conduct of the Magistrates Court proceedings. The LPCC noted in this regard the significant amount of time and effort expended by Mr Brennan in identifying the 'rogue taser' and establishing the unlawful tasering, which was prefaced on the medical and photographic evidence of the chest wounds having been made by a police taser. The LPCC found that at some point, before continuing on this complicated exercise, Mr Brennan should have taken further steps to satisfy himself as to the cogency of the evidence relied upon to support Mr Lund's version of events; LPCC's reasons paras 89 to 91.
The LPCC expressed concern that the extensive forensic exercise undertaken in reliance on Mr Lund's evidence directly impacted upon the significant costs incurred by Mr Lund. The LPCC reminded Mr Brennan that he ought to have given proper consideration to the evidence required to challenge the veracity of the prosecution's evidence and corroborate his client's version of events. That said, the LPCC considered that it was by no means clear, had the shortcomings of the Dr A report been disclosed earlier, that Mr Lund would have been dissuaded from undertaking the complicated forensic exercise regarding taser issues and police disclosure.
Mr Lund submits that the expression of concern made by the LPCC was an error of law.
As mentioned earlier in these reasons, the Tribunal's role on review is not to look for error in the underlying decision. If the Tribunal finds, as it has, that the correct and preferable decision is to dismiss the complaints, then the Tribunal has no other jurisdiction available to it in relation to directing the LPCC to remove its expression of concern. The LP Act confers no such power on the Tribunal.
In any event, in the Tribunal's view, an expression of concern is simply a comment made in the reasoning of the LPCC. The LPCC's comments and the manner in which it articulates its reasons is a matter entirely for it. Whilst the LP Act makes no mention of expressions of concern, we do not find that there is an error of law as a result.

New allegations

It should be noted in conclusion that there were a number of additional allegations made by Mr Lund in his written submissions which fall outside of the Tribunal's jurisdiction on review given that they were not matters taken into account by the LPCC in its decision, including allegations that Mr Brennan misled the LPCC, that Mr Brennan did not follow the rules of evidence and that Mr Brennan procured significant benefits from Mr Lund. The Tribunal cannot deal with those matters and they have not been addressed in these reasons.

Conclusion

For the above reasons, the Tribunal is of the view that the decision of the LPCC to dismiss all complaints made by Mr Lund was the correct and preferable decision, and should be affirmed. The application for review of the decision should therefore be dismissed.

Order

1.The application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE T SHARP, DEPUTY PRESIDENT
8 NOVEMBER 2019