MALABAR and LAW COMPLAINTS OFFICER as delegate of the LEGAL PROFESSION COMPLAINTS COMMITTEE - [2023] WASAT 80

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION:   MALABAR and LAW COMPLAINTS OFFICER as delegate of the LEGAL PROFESSION COMPLAINTS COMMITTEE [2023] WASAT 80
MEMBER:   JUDGE K GLANCY, DEPUTY PRESIDENT
DR S WILLEY, SENIOR MEMBER
MR R POVEY, MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   31 AUGUST 2023
FILE NO/S:   VR 13 of 2021
BETWEEN:   ROBERT MALABAR
Applicant
AND
LAW COMPLAINTS OFFICER as delegate of the LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
ANNA CASELLAS
Second Respondent

Catchwords:

Legal profession – Summary dismissal of complaint that practitioner engaged in conduct warranting disciplinary action – Whether preliminary investigation gave rise to reasonable cause to suspect that practitioner guilty of unsatisfactory professional conduct or professional misconduct – Whether complaint misconceived or lacking in substance – Whether grounds to dismiss complaint without completing investigation – Review of decision to dismiss complaint – Leave required for application for review

Legislation:

Legal Profession Act 2008 (WA) (repealed), s 409, s 410(1), s 410(2), s 410(3), s 410(4)(c), s 411, s 412, s 413(1), s 413(2) s 414, s 415, s 415(1), s 415(1)(b), s 415(2), s 415(3), s 416, s 421(2), s 421(3), s 426, s 435, s 435(1)(a), s 435(2), s 435(2)(a), s 573, s 574, Pt 13, Div 4
Legal Profession Conduct Rules 2010 (WA), r 5, r 37, r 37(4), Pt 6
Legal Profession Uniform Law Application Act 2014 (Vic), Sch 1, s 301
Legal Profession Uniform Law Application Act 2022 (WA), s 3, s 6(2), s 260, s 319, s 319(1), s 319(2)
Occupational Safety and Health Act 1984 (WA) (repealed), s 3, s 20, s 20(1), s 20(2)(d), s 23, s 23K, s 23K(2), s 23K(3)
State Administrative Tribunal Act 2004 (WA), s 18, s 27(1), s 27(2), s 29(1), s 29(3), s 31, s 31(1), s 31(2), s 31(3), s 60(2)

Result:

Leave to review Reviewable Decision refused
Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	N/A
First Respondent	:	N/A
Second Respondent	:	N/A

Solicitors:

Applicant	:	N/A
First Respondent	:	Legal Profession Complaints Committee
Second Respondent	:	Clayton Utz

Cases referred to in decision:

Chen and Law Complaints Officer [2022] WASAT 26
Forrest & Forrest v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2018] WASCA 32
Giannarelli v Wraith (1988) 165 CLR 543
Hismelt Corporation Pty Ltd v Pratt [2007] WASCA 192
Laurent and Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165
Lawson and Legal Profession Complaints Committee [2019] WASAT 36
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83
Wilson v Metaxis [1989] WAR 285
Winzer and Roberts-Smith [2011] WASAT 140
Zaghloul v Woodside Energy Ltd (No 7) [2019] FCA 818

REASONS FOR DECISION OF THE TRIBUNAL

Introduction

In this proceeding, Robert Malabar (Applicant), seeks a review of a decision of the Law Complaints Officer as delegate of the Legal Profession Complaints Committee (LPCC) to dismiss his complaint against the legal practitioner (Practitioner or Second Respondent) (Application).
The Applicant's application for review arose under s 435 of the Legal Profession Act 2008 (WA) (LP Act). Despite the repeal of the LP Act and the commencement of the Legal Profession Uniform Law Application Act 2022 (WA) (Application Act), the Application remains to be determined under s 435 of the LP Act.
In this instance, the decision which the Applicant seeks to have reviewed is a substituted decision made by the Law Complaints Officer as delegate of the LPCC, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). That substituted decision was made on 13 April 2021 (Reviewable Decision).
The Practitioner was engaged by the Applicant's former employer to conduct an investigation and to provide it with legal advice as a result of the Applicant having made certain allegations about conduct in the workplace. The allegations were made after the Applicant had been made redundant.
As we will set out below, there were a number of components to the Applicant's complaint which he summarised into 10 separate items of complaint.[1]
[1] In a letter dated 20 September 2020 addressed to the First Respondent, the Applicant provided a 'summary of the points in dispute' which he described as 'the alleged conduct the subject of the complaint': First Respondent's bundle, page 164. The 'summary' 'was not limited to' the complaints set out.
In making the Reviewable Decision, the Law Complaints Officer considered each of the 10 items of complaint and, after making some inquiries of the Second Respondent, found that each was misconceived and/or lacking in substance and unreasonable and dismissed the complaint pursuant to the power in s 415(1) of the LP Act. He also found that each complaint required no further investigation.
Because the Law Complaints Officer found each aspect of the complaint to be unreasonable, the Applicant requires the Tribunal's leave to have it review the Reviewable Decision.[2]
[2] LP Act, s 435(2)(a).

Outcome

For the reasons which we have set out below, we refuse the grant of leave because:
(a)there is no reasonable cause to suspect that the Second Respondent has been guilty of unsatisfactory professional conduct or professional misconduct;
(b)there is no reasonable prospect that further investigation would result in the discovery of any additional information or any new perspectives on existing material concerning the Applicant's complaint about the conduct of the Second Respondent;
(c)we have come to the view that the each of the 10 items of the complaint made about the Second Respondent's conduct are misconceived and without substance and unreasonable. Accordingly, we do not regard the Reviewable Decision to have been wrong or even attended with sufficient doubt to justify the grant of leave; and
(d)no substantial injustice will be occasioned by leaving the Reviewable Decision unreversed.
It follows that leave to review the First Respondent's Reviewable Decision is refused and the Application for review must therefore be dismissed.

Proceedings on the documents

For reasons which we set out below, s 319 of the Application Act means that we continue to have jurisdiction to resolve the leave Application under s 435 of the LP Act. Beyond setting out that leave to review the Reviewable decision is required, those sections do not identify how such applications are to be resolved.
The Legal Profession Uniform Law Application Act 2022 (WA) (Uniform Law), which is Sch 1 to the Legal Profession Uniform Law Application Act 2014 (Vic) applies as a law of the State, as if it were an Act, by virtue of s 6(2) of the Application Act. Section 301 of the Uniform Law provides that, subject to any procedural requirements, the Tribunal[3] may determine proceedings without a formal hearing but is bound by the rules of procedural fairness.
[3] Being the 'designated tribunal' as that term is used in the Uniform Law.
Section 60(2) of the SAT Act permits the Tribunal to determine matters on the basis of the documents without the parties participating in a hearing where the Tribunal considers it is appropriate to do so.
We are satisfied that this is a case where it is appropriate to do so. The parties have all made written submissions in relation to the application.
The documents on which the review is to be determined are:
(a)the application dated 26 February 2021;
(b)the Reviewable Decision dated 13 April 2021;
(c)First Respondent's s 24 Bundle of Documents filed on 31 May 2021 (the First Respondent's Bundle);
(d)the Applicant's s 24 Bundle of Documents Evidence filed on 25 June 2021 (the Applicant's Bundle);
(e)Applicant's written submissions filed on 29 July 2021;
(f)First Respondent's written submissions filed on 19 August 2021; and
(g)Second Respondent's written submissions filed on 3 September 2021.

Jurisdiction of the Tribunal

The Applicant made his complaint about the conduct of the Practitioner to the LPCC, pursuant to s 409 of LP Act.
The Law Complaints Officer dismissed the complaint on 11 February 2021.[4]
[4] Applicant's Bundle Vol C, pages 70 – 71.
The Applicant applied to the Tribunal for review of that decision on 26 February 2021, pursuant to s 435 of the LP Act.
The initial decision was reconsidered following an invitation to do so being made pursuant to s 31(1) of the SAT Act. On 13 April 2021, the original decision was set aside and substituted with the Reviewable Decision, pursuant to s 31(2) of the SAT Act.[5] That Reviewable Decision was that each aspect of the Applicant's complaint was misconceived and/or lacking in substance, was unreasonable and required no further investigation.[6]
[5] Applicant's Bundle Vol C, pages 105 – 124.
[6] Applicant's Bundle Vol C, pages 105 – 124.
By virtue of s 31(3) of the SAT Act, the review proceeding which had been commenced on 26 February 2021 is taken to be an application for a review of the substituted decision; i.e. a review of the Reviewable Decision.
Since the Application was commenced, the Application Act was enacted. Section 260 of the Application Act repealed the LP Act. However, ss 319(1) and 319(2) of the Application Act provide that if before the commencement day:[7]
(a)the Committee had made a decision to dismiss a complaint under the LP Act;[8]
(b)an application for review had been made to the Tribunal; and
(c)the Tribunal had not made a final decision in relation to the application,
then s 435 of the LP Act applies to the application for a review as if that section were not repealed. Therefore, this matter is to be resolved under s 435 of the LP Act.
[7] The commencement day was 1 July 2022: See Legal Profession Uniform Law Application Act 2022 (WA) (LPUNLA Act) Commencement Proclamation 2022 SL2022/113 at Government Gazette 30 June 2022, page 3921.
[8] Referred to in s 319 of the Application Act as the 'old Act' (and see definition of 'old Act' in s 3 of the LPUNLA Act).
Section 435(2) of the LP Act provides that where a decision to dismiss a complaint was made on the grounds that the complaint was trivial, unreasonable, vexatious or frivolous, the aggrieved person cannot apply to the Tribunal for review of the decision without leave of the Tribunal.
We are, in these proceedings, therefore, considering whether to grant leave to review the Reviewable Decision and, if leave is granted, reviewing the Reviewable Decision.

Principles relevant to the grant of leave and the review

As we have set out above, because the First Respondent found all aspects of the complaint to be unreasonable, leave to review the decision is required.[9] In Winzer and Roberts-Smith[10] Chaney J stated that the question of whether to grant leave under s 435 of the LP Act is determined in accordance with the principles set out by the Full Court of the Supreme Court in Wilson v Metaxis.[11] Those principles are:
1.It must be shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave.
2.In addition, it must be established that a substantial injustice would be done by leaving the decision unreversed. What constitutes a substantial injustice must depend on all the circumstances of the case.
[9] LP Act, s 435(2).
[10] Winzer and Roberts-Smith [2011] WASAT 140 at [8]. The principles were more recently cited with approval in Lawson and Legal Profession Complaints Committee [2019] WASAT 36.
[11] Wilson v Metaxis [1989] WAR 285 (Wilson).
In Hismelt Corporation Pty Ltd v Pratt, the Court of Appeal stated that the principles referred to in Wilson were not exhaustive and that leave may be granted if, in all the circumstances, it is in the interests of justice to do so.[12]
[12] Hismelt Corporation Pty Ltd v Pratt [2007] WASCA 192 at [14].
When exercising its review jurisdiction, the Tribunal conducts a hearing de novo and is not confined to finding error in the decision on review, instead being required to reach the correct and preferable decision as at the date of the decision upon the review.[13] However, in a case such as this, where leave to bring the review application is required, leave will only be granted where the Tribunal is satisfied that the Reviewable Decision is wrong, or at least attended with sufficient doubt as to justify the grant of leave, and that a substantial injustice would be done if the decision were left unreversed.
[13] SAT Act, s 27(2).
While the applicant does not bear any onus to show that a departure from the Reviewable Decision is justified,[14] that cannot be the case where leave is required. Where leave is required, as is the case here, the Applicant must bear the onus of establishing both that the decision is wrong, or sufficiently doubtful so as to justify the granting of leave, and that substantial injustice would be done if the decision were not reversed.
[14] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83 at [121] and [128] (Buss P, Murphy and Mitchell JJA) citing Forrest & Forrest v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2018] WASCA 32 at [61] (Buss P, Murphy and Beech JJA).
If the Tribunal grants leave in conducting the review, the Tribunal will be exercising its review jurisdiction.[15] The review is to be dealt with in accordance with the enabling Act (in this case the LP Act) and the SAT Act, subject to any modification of the operation of the SAT Act by the enabling Act.[16]
[15] Chen and Law Complaints Officer [2022] WASAT 26 (Chen) at [83] (Pritchard P, O'Sullivan SM and Marillier OM).
[16] SAT Act, s 18.
On the review, the Tribunal has functions and discretions corresponding to those exercisable by the decision-maker in making the Reviewable Decision.[17] The Tribunal may affirm or vary the decision being reviewed. It may also affirm or vary the decision being reviewed, or set aside the decision and substitute its own decision, or send it back to the decision‑maker for reconsideration, in accordance with any directions or recommendations the Tribunal considers appropriate.[18]
[17] SAT Act, s 29(1).
[18] SAT Act, s 29(3).

The correct name of the First Respondent

The Applicant's Application names the LPCC as the first respondent. However, the Reviewable Decision was made by the Law Complaints Officer in the exercise of delegated authority.
The power of the LPCC to delegate its powers and duties (other than the power of the LPCC under s 426 of the LP Act) was provided for in s 573 of the LP Act.
Where a decision-maker exercises delegated authority under a delegation, the decision-maker should identify in the decision that they have done so in the exercise of that delegated authority. Given the Reviewable Decision was made by the Law Complaints Officer as the delegate of the LPCC, the First Respondent should have been named as the 'Law Complaints Officer as delegate of the LPCC'.
The Application Act commenced operation after the review application was made. We therefore turn to consider the effect, if any, it had on the name of decision maker in the case and whether any amendment to the name of the First Respondent should be made.
Section 57 of the Application Act established the Legal Services and Complaints Committee as a Committee of the Board, in place of the LPCC. Section 269 of the Application Act provides that the Legal Services and Complaints Committee (the LSCC) is the same entity as, and a continuation of, the LPCC. Section 272 of the Application Act provides that the person holding the position as the Law Complaints Officer immediately prior to the commencement of the Application Act would continue as the Legal Services and Complaints Officer for the purposes of the Application Act and the Uniform Law. Taken together, those provisions might suggest that which the review application remains to be determined under s 435 of the LP Act, the first respondent should properly be named as the 'Legal Services and Complaints Officer as delegate of the LSCC'.
While the matter is not entirely clear, in our view, the following matters lead to the conclusion that the name of the first respondent remains the 'Law Complaints Officer as delegate of the LPCC', and we find that to be the preferable construction.
First, while s 272 of the Application Act provides that the person holding the position as the Law Complaints Officer immediately prior to the commencement of the Application Act would continue as the Legal Services and Complaints Officer, for the purposes of the Application Act and the Uniform Law, that is not the same effect as that brought about by s 269 of the Application Act which continues one entity (the LPCC) in the name of the new entity (the LSCC), on and from the commencement of the Application Act. The Application Act could not deal with them in the same way because the Law Complaints Officer and the Legal Services and Complaints Officer is a title given to an individual and is not an entity in the same way that the LPCC and the LSCC are entities. That tends against the idea that after the commencement of the Application Act the name of the first respondent should be the Legal Services and Complaints Officer as the delegate of either the LPCC or the LSCC.
Secondly, as a matter of fact, if the name of the first respondent were changed to the LSCC to reflect the effect of s 269 of the Application Act, then the first respondent would be named 'the Legal Profession Complaints Officer as delegate of the LSCC'. That would not be correct factually or legally because the Legal Profession Complaints Officer was never the delegate of the LSCC, either as a matter of fact or by operation of law.
Thirdly, s 319(3) and s 319(4) of the Application Act contemplate that a review of a decision made under it, pursuant to s 318 of that Act, continues essentially unaffected by the Application Act until the Tribunal either affirms or sets aside the relevant decision, at which time the matter then proceeds or ends as provided for in ss 319(3) or 319(4), as the case may be. Sections 319(3) and 319(4) provide as follows:
(3)If, under section 435(1) of the old Act as continued under subsection (2), the State Administrative Tribunal sets aside the decision of the Complaints Committee to dismiss the complaint under the old Act —
(a) the complaint is taken, on and from commencement day, to have been made under the Legal Profession Uniform Law (WA) section 266; and
(b) the preliminary assessment of the complaint under the Legal Profession Uniform Law (WA) section 276(1) is taken, on and from commencement day, to have been completed; and
(c) the complaint must otherwise be dealt with under the Legal Profession Uniform Law (WA).
(4) If, under section 435(1) of the old Act as continued under subsection (2), the State Administrative Tribunal affirms the decision of the Complaints Committee to dismiss the complaint under the old Act, the whole of the complaint is taken to have ended under the Legal Profession Uniform Law (WA) section 277.
For those reasons, we conclude that in dealing with the Applicant's application, the first respondent should properly be named as 'the Legal Profession Complaints Officer as delegate of the Legal Profession Complaints Committee' (First Respondent).
We will make an order amending the name of the First Respondent in the proceeding from 'Legal Profession Complaints Committee' to 'Law Complaints Officer as the delegate of the Legal Profession Complaints Committee'.

The relevant legal framework

The First Respondent dismissed the Applicant's complaint about the Second Respondent's conduct as a legal practitioner. Therefore, we next set out the way in which complaints about Australian legal practitioners were made and determined under the LP Act.

Division 4 of Pt 13 of the LP Act set out the scheme which applied in relation to the making of complaints about the conduct of legal practitioners at the time the Applicant's complaint was made. That scheme was broadly as follows.
Section 409 of the LP Act provided that complaints could be made about the conduct of an Australian legal practitioner. Section 410(1) of the LP Act provided that such a complaint could be made by, among others, and relevantly in this case, any person who has or had a direct personal interest in the matters alleged in the complaint. Section 410(2) of the LP Act provided that a compliant could be made directly to the Legal Profession Complaints Committee or through the Law Complaints Officer.
Section 410(4)(c) of the LP Act required the person making the compliant to describe the alleged conduct, the subject of the complaint.
Section 411 of the LP Act concerned the timing of the making of complaints. It is not necessary to say anything further about that section in this case.
Section 412 of the LP Act provided that the LPCC could require a person making a complaint to provide further details about a complaint or to verify details about the complaint by statutory declaration, or both.
Section 414 of the LP Act provided that a practitioner was entitled to make submissions (within a specified time) in relation to the complaint, or its subject matter, or both, having been notified of the complaint under s 413(1) of the LP Act.[19]
[19] Section 413(2) of the LP Act provided that the Complaints Committee need not give notice of a complaint to the practitioner concerned in certain circumstances which are not relevant in this matter.
Section 415(1) of the LP Act permitted the summary dismissal of complaints for various reasons including, relevantly, where the complaint is vexatious, misconceived, frivolous or lacking in substance.[20]
[20] LP Act, s 415(1)(b).
Section 415(2) of the LP Act provided that the LPCC was required to dismiss a complaint in particular circumstances.[21] None are applicable in this case.
[21] They are: (a) where the complaint was made more than six years after the conduct complained of is alleged to have occurred (unless a determination is made under s 411 in relation to the complaint); (b) the conduct complained about has been the subject of a previous complaint that has been dismissed; and (c) the complaint is not one that the LPCC is empowered to deal with.
Section 415(3) of the LP Act provided that the LPCC may dismiss a complaint under that section without completing an investigation if, having considered the complaint, the LPCC forms the view that it requires no further investigation.
Where a complaint was not dismissed under s 415(1) or s 415(2) of the LP Act, the LPCC was required to proceed to complete an investigation into the complaint, pursuant to s 421(2) (subject to s 421(3) of the LP Act).
Thus, summary dismissal was available to the delegate of the LPCC under s 415(1)(b) of the LP Act where he considered that the complaint to be vexatious, misconceived, frivolous or lacking in substance.
The terms 'vexatious', 'misconceived', 'frivolous' and lacking in substance' were not defined in the LP Act.
In Laurent and Commissioner of Police,[22] the Tribunal considered the meaning of the terms 'misconceived' and 'lacking in substance'. Deputy President Pritchard (as her Honour then was) held that the term 'misconceived' connoted a 'misunderstanding of legal principle' while the terms 'lacking in substance' connotes 'an untenable proposition of law or fact'.[23]
[22] Laurent and Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 (Laurent).
[23] Laurent at [23].
The expression 'unreasonable' bears its ordinary meaning which, relevantly, is 'not reasonable; not endowed with reason'.[24]
[24] Macquarie Dictionary Online.
By s 573 of the LP Act, the LPCC was empowered to delegate any of its powers or duties to the Law Complaints Officer, other than those powers under s 426 of the LP Act.[25] The powers of the LPCC in relation to complaints made in relation to Australian legal practitioners, being those in ss 409 – 416 (inclusive) of the LP Act, were capable of being delegated to the Law Complaints Officer. No issue was taken in this proceeding with the validity of the decision of the Law Complaints Officer as delegate of the LPCC.
[25] Section 574 required the delegation to be in writing, prohibited further delegation by the delegate and set out other matters related to the power of delegation that are now relevant for present purposes.
Assuming leave were to be granted by the Tribunal, in dealing with the review, standing in the shoes of the Law Complaints Officer, the Tribunal would be required to determine:
(a)whether the information contained in the complaint and the evidence obtained thus far in the investigation warrant the completion of the investigation of the complaint;[26] or
(b)whether the complaint is vexatious, misconceived, frivolous, lacking in substance and should be dismissed;[27] or
(c)whether the complaint is unreasonable,[28] or
(d)whether the complaint requires no further investigation and should be dismissed.[29]
[26] LP Act, s 421(2).
[27] LP Act, s 415(1)(b).
[28] LP Act, s 435.
[29] LP Act, s 415(3).

Background to the making of the complaint

Before we can consider whether the First Respondent was correct to dismiss the Applicant's complaint about the Practitioner's conduct, it is necessary to say something about how the Applicant came to interact with the Practitioner because, as will be seen, they were not in a solicitor-client relationship.
The factual background to this matter was not in dispute. The facts set out in [59] – [74], which we find, are taken from the Applicant's Submissions, the First Respondent's submissions and the submissions of the Second Respondent.
The Applicant was employed by the DBNGP Group Companies (including DBNGP (WA) Nominees (DBP) from March 2010 – July 2016). On 1 July 2016, he was presented with a notice of redundancy which informed him that his last day of work was to be 8 July 2016.
On 4 July 2016, the Applicant met with a human resources officer from DBP to report what he claimed was 'a pattern of unreasonable behaviour' which he claimed a co‑worker had subjected him to over the preceding 18 months. He claimed that behaviour amounted to 'workplace bullying'.
On 7 July 2016, the human resources officer informed the Applicant that she would recommend to the executive that DBP conduct a full external investigation into his allegations. On 21 July 2016, the human resources officer clarified with the Applicant that no decision had been made about whether a full external investigation would in fact be carried out.
On 1 August 2016, the human resources officer informed the Applicant that an internal investigation had been carried out and a decision had been made not to carry out any further investigation. She indicated that DBP would be willing to reconsider that decision if he were to provide further information in support of his allegations.
The Applicant persisted with his attempt to have an external investigation into his bullying complaint conducted, including by writing to the Chair of DBP and DUET (DBP's parent company) on 25 August 2016 and 27 September 2016 respectively, and, on 2 October 2016, by writing to the Chair of DBP enclosing what he described as a 23 page 'dossier' which he said needed to be provided to an independent investigator.[30]
[30] First Respondent's Bundle, pages 33 – 34.
On 21 October 2016, the Chair of DBP wrote to the Applicant, informing him that DBP had decided to engage an external law firm to undertake a review of the matters raised in his letter of 2 October 2016 and that he (i.e. the Applicant) would be interviewed as part of that process.[31]
[31] [First Respondent's Bundle, page 35]; Applicant's Bundle Vol B, page 19.
The Practitioner was a solicitor at the firm engaged to undertake the review.
On 28 October 2016, the Practitioner wrote to the Applicant to advise him of the scope of the investigation which DBP had instructed her to undertake. She made clear in her letter that she was acting for DBP in undertaking the investigation and would provide a confidential and privileged report to DBP at the conclusion of her investigation for the purposes of providing it with legal advice. Her letter informed the Applicant that: [32]
(a)she had instructions to investigate three specific incidents identified by the Applicant which might amount to harassment, intimidation or a failure to act with professionalism or proper courtesy (the Limited Investigation);
(b)if further incidents of the kind that might amount to harassment, intimidation or a failure to act with professionalism or proper courtesy were identified during the Limited Investigation, they would also be investigated; and
(c)the Limited Investigation would not extend to any allegations which may potentially fall within the category of reasonable management action carried out in a reasonable manner.
[32] Applicant's Bundle Vol B, pages 5 – 6.
The Applicant was not content with that approach. On 30 October 2016, he wrote to the Practitioner requesting that her firm give 'proper consideration' to the 'complete picture of wider facts including the full extent of the wider complaint dated 4 July 2016 made to DBP'. He also asserted that the Practitioner's law firm was prevented, by reason of a conflict of interest, from conducting a proper investigation into his actual complaint. He asserted that the DBP Board should commit to 'open, full and complete disclosure of information in relation to the subject of the actual complaint' and that a conclusion that there was 'insufficient evidence' to support his allegations would be unlikely if the investigator is 'diligent'. The Applicant also declined to participate in the Limited Investigation on the basis that it seemed to him to be irrelevant to the proper handling and investigation of his actual complaint.[33]
[33] Applicant's Bundle Vol B, pages 9 – 10.
The Practitioner next wrote to the Applicant on 4 November 2016. In that letter the Practitioner: [34]
(a)acknowledged that the Applicant had declined to participate in the Limited Investigation;
(b)notified the Applicant that she had been instructed that he had been, on numerous occasions, invited by DBP to provide further information and to participate in the Limited Investigation;
(c)informed the Applicant that, without any concessions being made by DBP, it was going to review its internal framework for the making and investigation of bullying complaints;
(d)rejected the Applicant's claim that either she or the law firm for which she worked had a conflict of interest in acting for DBP in carrying out the Limited Investigation; and
(e)informed the Applicant that, notwithstanding that she acted for DBP, her professional and ethical obligations continued to apply.
[34] First Respondent's Bundle, page 91.
After that time, there was some further correspondence between the Applicant and the Practitioner, the details of which it is not necessary to set out. It suffices to say that each persisted with their previously stated position.
Ultimately, the Limited Investigation was conducted and concluded.
On 1 December 2016, the Chair of DBP wrote to the Applicant informing him that the Limited Investigation had been concluded and it had been determined that:[35]
(a)in respect of two of the incidents investigated, his co-worker's conduct amounted to a minor breach of DBP's Code of Conduct but did not amount to workplace bullying or harassment;
(b)refinements should be made to DBP's bullying and harassment framework; and
(c)DBP's senior management[36] should undergo additional training.
[35] Applicant's Bundle Vol A, page 35.
[36] The co-worker about whom the allegations had been made was part of DBP's senior management group.
The Applicant wrote to the DUET Group on 19 December 2016, asserting that DBP had committed a breach of the Occupational Safety and Health Act 1984 (WA) (OSH Act)[37] because it had failed to investigate within a reasonable time, the matter that he had reported. He stated he intended to report the offence to WorkSafe Australia.[38]
[37] We note that that OSH Act was repealed on 31 March 2022.
[38] First Respondent's Bundle, pages 94 – 96.
Before making the complaint, the Applicant wrote to the Second Respondent on 20 December 2016, making certain assertions about her conduct and that of the firm and asking her for details of how to complain about her firm's professional conduct.[39]
[39] Applicant's Bundle Vol B, pages 35 – 36.
The Second Respondent responded on 23 December 2016. In her response, she rejected his contention that the firm had engaged in unethical conduct and rejected certain factual assertions which he had made, including that DBP had a legal obligation to conduct an independent investigation in relation to all of the matters he had raised. Further, she asserted that her client, DBP had discharged all of the obligations it owed to the Applicant.[40]
[40] Applicant's Bundle Vol B, pages 38 – 39.

The complaint and the Reviewable Decision

The procedural history of the complaint about the conduct of the Practitioner is not in dispute. We make findings about those matters as set out in [76] – [97].
On 28 November 2019, the Applicant made a complaint addressed to the LPCC about the conduct of the Practitioner.[41] In it he stated that he believed there was a reasonable likelihood it may find the Practitioner guilty of professional misconduct. He identified his grounds of complaint as follows:[42]
… evident misconduct in breach of professional obligations and standards, some of which are highlighted in Appendix A, and summarised as follows:
·A practitioner's paramount duty to the Court;
·Conduct which may be prejudicial to the proper administration of justice;
·Communications with unrepresented parties;
·Undue influence, duress or use of unfair advantage;
·Further a client's matter by unfair or dishonest means.
[41] First Respondent's Bundle, pages 21 – 39.
[42] First Respondent's Bundle, page 21.
He asserted that a layman would reasonably reach the view that the Second Respondent:
(a)had perverted the course of justice;
(b)aided and abetted the commission of an offence; and
(c)acted so as to prejudice the proper administration of justice.[43]
[43] First Respondent's Bundle, pages 21 – 22.
He further stated that the 'evidence shows that the Second Respondent, an officer of the Court, was aware of the fact that DBP had failed to properly discharge its obligations under the OHS Act'.[44]
[44] First Respondent's Bundle, page 22.
On 3 December 2019, the LPCC emailed the Applicant and explained the role of the LPCC's Rapid Resolution Team. In that letter, the First Respondent also stated:
One of the difficulties with the concerns you have raised about [the Practitioner] is that she acts for the opposing party, who is responsible for their own client's interests within boundaries of professional conduct standards.[45]
[45] First Respondent's Bundle, page 40.
On 4 December 2019, a legal officer from the LPCC's Rapid Response Team (Legal Officer) sent an email to the Applicant requesting further specific documents and information (presumably in the exercise of the power in s 412 of the LP Act) and advising the Applicant that she would consider the material and revert as soon as possible.[46]
[46] First Respondent's Bundle, page 41.
On 9 December 2019, the Applicant provided documents and information in response to the Legal Officer's letter.[47]
[47] First Respondent's Bundle, pages 42 – 99.
On 3 March 2020, the Legal Officer informed the Practitioner of the Applicant's complaint.[48] The Applicant's complaint was summarised as follows:
1.The Practitioner had been misleading in describing his complaint as being about harassment and intimidation or a failure to act with professionalism when it was in fact about workplace bullying.
2.The Limited Investigation was conducted into a matter about which he had not complained.
3.The Practitioner had aided and abetted DBP to commit an offence under the OSH Act by failing to investigate the matter that had been reported within a reasonable time.
4.The Practitioner had proceeded with the Limited Investigation after the Applicant had informed her that doing so may be prejudicial to a proper investigation of his complaint by an independent investigator.
5.The Practitioner had acted on instructions that were not lawful, proper or competent.
[48] First Respondent's Bundle, pages 108 – 109.
On 4 March 2020, the Practitioner provided a detailed reply to the Legal Officer, pursuant to s 414 of the LP Act.[49] In summary, she denied she had engaged in professional misconduct and, by reference to each of the paragraphs referred to in the Legal Officer's email of 3 March 2020, she responded that:
(a)her letter of 28 October 2016 was accurate. It made clear that her firm had not been instructed to investigate all of the matters raised by the Applicant;
(b)the Applicant was not entitled to dictate the scope of an investigation which her firm was to undertake for her client, DBP. Further, DBP was not under any legal obligation to investigate every allegation the Applicant had made;
(c)DBP had no obligation to commission an external or independent investigation into all of the Applicant's allegations;
(d)DBP was under no obligation to commission an independent investigation. Her law firm was engaged to provide privileged legal advice to DBP in relation to a confined set of allegations and it was not clear to her how that arrangement could prejudice or jeopardise an independent investigation in any event; and
(e)it is up to an employer to determine whether any allegation may require formal investigation. Her firm acted on instructions that were lawful, competent and entirely proper.
[49] First Respondent's Bundle, pages 111 – 113.
On 10 March 2020, the Legal Officer advised the Applicant in writing that the matters raised by him did not disclose any possible conduct issue on the part of the Practitioner. The Legal Officer's letter also stated that if there was further specific information available, it should be provided within 21 days.[50]
[50] First Respondent's Bundle, pages 114 – 121.
On 15 May 2020, after being given an extension of time within which to provide further specific information, the Applicant responded to the Legal Officer's letter by providing an annotated version of the letter of 10 March 2020.[51] The annotations were his response to the points made in the Legal Officer's letter. The Applicant himself described his annotated letter as 'long winded'.[52]
[51] First Respondent's Bundle, pages 127 – 155.
[52] First Respondent's Bundle, page 129.
On 20 September 2020, following communications between the First Respondent and the Applicant, the Applicant distilled his response of 15 May 2020 into what he called 'Summary of the points in dispute'.[53] That document had been prepared by the Applicant because he continued to be concerned that the Legal Officer had misrepresented the facts and contentions he had made about the Practitioner's conduct and, therefore, had responded to the wrong complaint.[54] We will return to the Summary of the points in dispute later in these reasons. The same Summary of points in dispute was sent to the Manager of the Rapid Response Team and the Manager, Investigation Team under cover of a letter dated 11 December 2020.[55]
[53] First Respondent's Bundle, page 164.
[54] See letter that accompanied the provision of the Summary of points of dispute. First Respondent's Bundle, pages 162 – 163.
[55] First Respondent's Bundle, pages 166 – 167.

On 25 January 2021, the Legal Officer wrote to the Applicant stating that no matters had been identified in the Summary of the points of dispute in respect of which the Rapid Response Team could further assist the Applicant, and that no conduct issues had been identified. The letter stated that the Legal Officer intended to refer his complaint to the First Respondent to consider whether it was appropriate for disposition or further investigation. The letter informed the Applicant that if there was any further specific material which he wished to have provided to the First Respondent, it should provide to the Legal Officer within 10 days.[56]
[56] First Respondent's Bundle, pages 169 – 175.
Under cover of a letter dated 4 February 2021,[57] the Applicant provided what he called a 'Summary of the alleged conduct the subject of the dispute'.[58] It was the same as the Summary of the points in dispute document which he had provided earlier. He also attached an annotated response to the Legal Officer's letter of 25 January 2021.[59] It contained 86 annotations of what were described as 'corrections and commentary'.
[57] First Respondent's Bundle, pages 177 – 178.
[58] First Respondent's Bundle, page 179.
[59] First Respondent's Bundle, pages 180 – 216.
By letter dated 11 February 2021, the First Respondent advised the Applicant that it had no issue with the propriety of the Practitioner's conduct in acting for DBP. That letter stated:[60]
The practitioner here was engaged by her client to make enquiries and provide them with advice. The scope of that retainer, which was limited, was for her and her client to agree. It is not for you to decide. You may disagree with the practitioner's advice, but if you do that does not mean that the practitioner has acted prejudicially to the administration of justice, or aided an offence.
If you wish to then you are able to obtain your own legal advice on the issues surrounding your former employment, however we are not able to assist you there.
[60] First Respondent's Bundle, pages 217 – 218.
The First Respondent informed the Applicant that he regarded the complaint to be unreasonable and not requiring any further investigation, and that he had dismissed the complaint under ss 415(1)(b) and 415(3) of the LP Act.
On 24 February 2021, the Applicant wrote to the First Respondent, attention the Law Complaints Officer, in terms which included the following paragraphs:[61]
It is my understanding that you signed off on advice of this matter on the Morning of Day Two in your new role. I write to explain the fact that you have been misinformed. The determination stated in your letter is illegitimate due to the fact that it is unsupported by prima facie evidence presented to the Legal Profession Complaints Committee ('LPCC'). As pointed out to the LPCC management, handling of Complaint R951/19 has to date evidently been biased and lacking in integrity.
If the bias has been unintentional, it is a matter of lack of capacity or incompetence. However, if the bias is deliberate, it can reasonably be considered corruption.
[61] First Respondent's Bundle, pages 222 – 225.
In that letter, the Applicant also made the following statement:[62]
At the heart of Complaint R951/19 is the fundamental duty of practitioners' issue:
The practitioner improperly intervened in a dispute resolution process concerning a 'Workplace Bullying' Complaint evidently on-foot between the complainant and his former employer in which she could play no legitimate part whatsoever due to the conflict of interest of her paramount duty to the court with the duty owed to her client.
[62] First Respondent's Bundle, page 223.
The Applicant also attached to his letter of 24 February 2021, a document which he described as a 'Summary of the alleged conduct, the subject of the complaint'.[63] It set out 10 points which he says a competent, fair and diligent legal officer would identify as serious misconduct issues if it properly assessed the evidence, facts and contentions put to the LPCC by him.[64]
[63] First Respondent's Bundle, page 226.
[64] He caveated that Summary by saying that the points were not limited to those he identified in the 10 points listed.
On 25 February 2021, the Applicant sent a further letter to the LPCC which attached documents he claimed supported his assertion of 'evident maladministration of complaint handling'.[65]
[65] First Respondent's Bundle, page 228.
On 26 February 2021, the Applicant commenced an application for review of the decision of 11 February 2021.
On 6 April 2021, after the Tribunal proceedings had been commenced, and after the First Respondent had agreed to reconsider the initial decision, the Applicant wrote again to the LPCC.[66] In that letter, he said he was looking forward to receiving the revised decision, but that he anticipated 'the likelihood of wishing to provide a detailed response in reply', but that as a precursor to that, and in order to assist the Tribunal, it was beneficial for him to provide, in advance, a basic synopsis of the background, context and sequence of events. We pause to note that, having reviewed that correspondence, it essentially repeats the Applicant's previous submissions about the matter.
[66] First Respondent's Bundle, pages 235 – 241.
On 13 April 2021, after the Applicant had applied to the Tribunal for review of the decision, the First Respondent reconsidered his decision and gave the Applicant notice of the Reviewable Decision.[67] In it, he stated that he found each of the 10 items identified in the Summary of points in dispute, which form the substance of the complaint, to be unreasonable and/or lacking in substance and unreasonable. He also found each needed no further investigation and, accordingly, dismissed the complaints. The reasons for doing so are also set out in the Reviewable Decision.
[67] First Respondent's Bundle, pages 1 – 16.

Should leave to review the Reviewable Decision be granted?

The applicant's submissions

The Applicant's submissions in support of his application for leave are 120 pages long. His Applicant's Bundle consists of three volumes of documents. The Applicant commenced his submissions with an apology for the submissions which he himself described as 'long winded'. The submissions are largely repetitive of what he had to say in his communications with the Legal Officer and First Respondent while his complaint was being dealt with. While, of course, we make allowances for a self-represented litigant, any fair reading of the submissions allows them to be characterised as repetitive, pedantic and prolix.
When read as a whole, it is clear that the Applicant complains that proper consideration was not given to the whole of his complaint. His submission, in essence, is that, given the evidence he had presented to the First Respondent, he should have reached the view that there was reasonable cause to suspect the Second Respondent had engaged in unsatisfactory professional conduct or professional misconduct. He makes particular submissions about the 10 items he identified as the specifics of his complaint.
We are of the view that the Applicant's complaint about the Practitioner's conduct and the correctness or otherwise of the Reviewable Decision, can be properly addressed by reference to the 10 items he raised in his 'Summary of the alleged conduct the subject of the complaint'. Having read them, it is clear to us that all of his submissions go to those 10 items, which he described as 'the heart of the matter'. Those essential items have not changed over time. The First Respondent was, in our view, correct to treat them as the particulars of the complaint.
We will deal with each in turn below.
In relation to the second limb of the test for leave, concerning substantial injustice being done if the Reviewable Decision is not reversed, the Applicant made the following submission:
… based on a reasonable consideration of all of the facts and evidence in relation to this matter brought before the Tribunal, not just the selective material shown to have been identified and referred to by the [First Respondent] (with other evidence apparently disregarded), failure to grant leave would cause substantial injustice[.]
The specific injustice that would be caused was not identified in any more detail.

The First Respondent's position on the review

The First Respondent filed brief submissions which identified what it said were the relevant legal principles relating to a review under s 435 of the LP Act and otherwise did not seek to support the Reviewable Decision.

The Second Respondent's position on the review

The Practitioner submitted that the Applicant's complaint can be summarised as a complaint that she engaged in professional misconduct in relation to her investigation of the Applicant's allegations of workplace bullying while he was employed by DBP. She submits that the Reviewable Decision to dismiss the complaint without a substantive investigation was the correct decision and, therefore, leave to review the decision should not be granted.[68]
[68] Second Respondent's submissions, paras 8 – 10.

Consideration of the Applicant's grounds

We now turn to deal with each of the Applicant's 10 specific items of complaint.

Item 1: 'The practitioner improperly intervened in a dispute resolution process concerning a 'workplace bullying' complaint evidently on foot between [the Applicant] and his former employer in which she could play no legitimate part whatsoever due to the conflict of interest of her paramount duty to the Court with the duty owed to her client'

We find that the Applicant's claim that the Practitioner 'acted improperly by intervening in a dispute resolution process concerning his complaint about workplace bullying in which she could play no legitimate part because of the conflict of interest that arose between her duty to the Court and the duty to her client' is misconceived.
It is clear from the Applicant's submissions that he accepts that the Second Respondent was DBP's lawyer and, conversely, that DBP was her client. However, it was also clear from those submissions, and the complaint against the Practitioner itself, that he has not understood the nature of the duties of an Australian legal practitioner.
A lawyer owes a duty to the court. The lawyer also has an important duty to their client. The former prevails over the latter when the two duties conflict.[69] A lawyer's duty to the court is an incident of a lawyer's obligation to ensure the proper administration of justice. That duty, and that it prevails over any duty owed to the client by a practitioner, is reflected in r 5 of the Legal Profession Conduct Rules 2010 (WA) (Rules), which applied at the relevant time. It arises as a result of a practitioner's role as an officer of the court and an integral part of the administration of justice. The duty requires that lawyers act with honesty, candour and competence, and exercise independent judgement in the conduct of a case. It requires that practitioners not engage in proceedings which amount to an abuse of process. It also requires practitioners to act in a way which assists the court to reach a proper resolution of the dispute in a prompt and efficient manner. Importantly, that duty requires that lawyers not mislead the court, and requires them to be frank in their disclosures to the court.[70]
[69] Giannarelli v Wraith (1988) 165 CLR 543 at [555] – [556] (Mason CJ) at [572] (Wilson J).
[70] Dal Pont GE, ‘Part 4: Lawyers’ Duty to the Administration of Justice’ Lawyers’ Professional Responsibility (7^th ed, 2020).
The Practitioner had been engaged by her client, DBP, to undertake an investigation into certain matters raised by the Applicant and to provide the client with legal advice following that investigation. No legal proceedings were on foot. In acting for her client in relation to a matter which did not involve court proceedings, the Practitioner could not have been acting in conflict with any obligation owed to the court.
A practitioner's obligation to the administration of justice, which goes to ensuring the integrity of the rule of law, extends to professional obligations outside of litigation. It requires, among other things, that practitioners are honest in their dealing with other practitioners and the public in order to ensure that the public confidence in the profession is maintained.[71]
[71] Dal Pont GE, Lawyers’ Professional Responsibility (7^th ed, 2020) at [21.145].
The scope of the investigation which was to be conducted by the Practitioner, and the areas upon which she was to provide advice, were matters to be agreed between her and her client. She was under no obligation to do what the Applicant wished her to do in relation to the scope of the investigation.
The Practitioner was engaged by DBP to provide legal advice to it after conducting the Limited Investigation. The Second Respondent had a duty to carry out her client's lawful instructions. DBP's instructions delineated the scope of the Limited Investigation. Doing precisely what she was engaged to do (which was not to be an independent investigator or to investigate every aspect of the Applicant's workplace complaint) to fulfil her duty to her client did not result in the Practitioner acting in conflict with her duty to the court or the administration of justice or in breach of r 5 of the Rules.
We find that there was nothing in the materials before us that would provide a basis upon which anyone could reasonably conclude that the Practitioner's conduct in any way would cause the public's confidence in the profession to be diminished.
In our view, given the extent of the material provided to the Legal Officer and the First Respondent in the course of his consideration of the complaint, and to the Tribunal in the course of the proceeding, there is:
(a)no reasonable cause to suspect either that the Practitioner might have engaged in conduct that constitutes unsatisfactory professional conduct or professional misconduct; and
(b)no cause to think that further investigation is likely to uncover additional evidence that may alter the conclusion that there is no reasonable cause to suspect that the Practitioner might have engaged in conduct constituting unsatisfactory professional conduct or professional misconduct.[72]
[72] See the test set out in Chen at [96] – [99].
Rather, we find that the First Respondent was correct to dismiss this aspect of the Applicant's complaint on the basis that it was misconceived and lacking in substance and to have found it to be unreasonable.
In that circumstance, we find that there can be no injustice occasioned by leaving the decision unreversed.
Having found the First Respondent's determination of this aspect of the Applicant's complaint to be correct, there can be no basis for the grant of leave to pursue that aspect of the complaint.

Item 2: The Practitioner wilfully engaged in conduct with intent and effect of perverting the proper administration of justice

The Applicant's submissions in relation to Item 2 focus on DBP's obligations under the OSH Act. He submitted that DBP, having been informed by him of a pattern of unreasonable behaviour towards him over an extended period of time, was under a statutory obligation to investigate his allegations fully through the engagement of an independent investigator. He submits that in the carrying out of the Limited Investigation, which had been described as an investigation into certain incidents of 'harassment or intimidation or a failure to act with professionalism or proper courtesy' (which was not the entirety of his workplace complaint), the Second Respondent did not investigate his allegation of a pattern of workplace bullying. The Applicant contends that the Limited Investigation was carried out by the Second Respondent for the purposes of concealing the commission of an offence under the OSH Act.
Practitioners have a duty to obey and uphold the law. This means they must not engage in conduct that is dishonest, illegal, unprofessional or that may otherwise bring the profession into disrepute, or in a way that is prejudicial to the administration of justice. They must not seek to further their client's interests by dishonest means. They must not knowingly assist or seek to induce a breach of the law by clients.[73]
[73] See Dal Point GE, Lawyers’ Professional Responsibility (7^th ed, 2020), Chapter 19.
That notwithstanding, for the following reasons, we conclude that this aspect of the Applicant's complaint is without substance and unreasonable.
First, if such an obligation existed, the obligation to carry it out would have been DBP's. The existence of any such obligation would not have precluded DBP from instructing its solicitor, as it did, to carry out the Limited Investigation. Nor would it not have precluded the Second Respondent from undertaking the Limited Investigation.
Secondly, there is no factual basis in the materials provided for the Applicant's assertion that the Second Respondent carried out the Limited Investigation for the purpose of preventing a proper investigation being carried out under the OSH Act. There is no direct evidence of the existence of such an intention on the Second Respondent's part and, in our view, no such intention can be inferred from the material before us, which was to the effect that the Second Respondent accepted lawful instructions to carry out the Limited Investigation for the purpose of providing her client with legal advice about conduct of its employees and the adequacy of its complaint handling policies and practices. There is no evidentiary basis for the assertion that the Practitioner conspired with her client to assist the client to breach the OSH Act or to conceal an offence.
Thirdly, if the Applicant's reference to 'perverting the proper administration of justice' in Item 2 meant that the Practitioner conducted the Limited Investigation for the purpose of preventing the Applicant from obtaining any remedies to which he may have been entitled at law, such an assertion is also unwarranted. Whatever the outcome of the Limited Investigation, the Applicant was not precluded from obtaining his own legal advice and exercising any rights he may have had in relation to the conduct that he claims he experienced in the course of his employment.
Fourthly, if what he meant was that by conducting the Limited Investigation the Second Respondent precluded the DBP from conducting some other inquiry into his more expansive workplace complaint, we deal with that matter when considering Item 3 below.
Even if that was the consequence of the Limited Investigation, as we have said, there is no basis upon which it could reasonably be suspected that the Limited Investigation was conducted for that purpose.
In our view, given the extent of the material provided to the Legal Officer and the First Respondent in the course of his consideration of the complaint, and to the Tribunal in the course of the proceeding, there is:
(a)no reasonable cause to suspect either that the Practitioner might have engaged in conduct that constitutes unsatisfactory professional conduct or professional misconduct; and
(b)no cause to think that further investigation is likely to uncover additional evidence that may alter the conclusion that there is no reasonable cause to suspect that the Practitioner might have engaged in conduct constituting unsatisfactory professional conduct or professional misconduct.
We also therefore find that the First Respondent was correct to dismiss this aspect of the Applicant's complaint on the basis that it was misconceived and lacking in substance, and to have found it to be unreasonable.
In that circumstance, we find that there can be no injustice occasioned by leaving the decision unreversed.
Having found the First Respondent's determination of this aspect of the Applicant's complaint to be correct, there can be no basis for the grant of leave to pursue that aspect of the complaint.

Item 3: The practitioner wilfully engaged in conduct prejudicial to subsequent proper administration of justice

The Applicant's submission in relation to this item of his complaint is that the Limited Investigation was prejudicial to DBP's ability to investigate his actual workplace bullying complaint. He asserts that 'illegitimate contact' with the alleged perpetrator and witnesses in the course of the Limited Investigation would have prejudiced any further inquiries into the matter. The Applicant asserts that this is so without providing any reasoning in support of the assertion.
In our view, there is no reasonable basis upon which we could conclude that by interviewing persons in the course of the Limited Investigation the Practitioner would prevent those persons from being truthful in the course of any subsequent inquiries, let alone any reasonable basis for suspecting that the Practitioner conducted the Limited Investigation for the purposes of undermining any investigation into related matters. There is simply no evidential foundation for either assertion.
In our view, given the extent of the material provided to the Legal Officer and the First Respondent in the course of his consideration of the complaint, and to the Tribunal in the course of the proceeding, there is:
(a)no reasonable cause to suspect either that the Practitioner might have engaged in conduct that constitutes unsatisfactory professional conduct or professional misconduct; and
(b)no cause to think that further investigation is likely to uncover additional evidence that may alter the conclusion that there is no reasonable cause to suspect that the Practitioner might have engaged in conduct constituting unsatisfactory professional conduct or professional misconduct.
We therefore find that the First Respondent was correct to dismiss this aspect of the Applicant's complaint on the basis that it was misconceived and lacking in substance and to have found it to be unreasonable.
In that circumstance, we find that there can be no injustice occasioned by leaving the decision unreversed.
Having found the First Respondent's determination of this aspect of the Applicant's complaint to be correct, there can be no basis for the grant of leave to pursue that aspect of the complaint.

Item 4: The Practitioner wilfully aided and abetted the committing of an offence by her client

The Applicant asserts that DBP had an obligation to investigate his complaint of bullying under the OSH Act. He asserts that the Practitioner aided her client to breach the OSH Act by conducting the Limited Investigation rather than investigating his actual bullying complaint. He says that it can be assumed that her advice to DPB assisted them to breach the obligation under s 23 of the OSH Act.
While we are mindful of the need to focus on the Reviewable Decision, we consider it necessary to consider the operation and application of the OSH Act as it applied at the relevant time because there will be no reason to grant leave in relation to this item if the Applicant's position in relation to the requirement of the (now repealed) OSH Act is not tenable.
There is little in the way of judicial commentary on the operation of s 23K of the OSH Act.[74] However, in our view, the OSH Act did not operate as submitted by the Applicant.
[74] Our searches found only one decision that referred to s 23K of the OSH Act but there was no commentary on its operation: Zaghloul v Woodside Energy Ltd (No 7) [2019] FCA 818 (McKerracher J).
Section 20 of the OSH Act set out the duties of employees. Section 20(1) provided that an employee was to take reasonable care to ensure their own safety and health at work, and also to avoid affecting the health and safety of others through any act or omission. Section 20(2)(d) provided that an employee would breach s 20(1) if, relevantly, they failed to report to an employer any situation at the workplace that the employee had reason to believe could constitute a hazard to any person that the employee could not correct or any injury or harm to health of which he or she was aware that arose in the course of, or in connection with, their work.
Section 23K(2) of the OSH Act required that once an employee had made a report for the purposes of s 20(2)(d), the employer investigate the matter that had been reported and determine the action, if any, that the employer intended to take in respect of the matter, and to notify the employee of the determination so made. Section 23K(3) provided that if an employer failed to undertake these steps, an offence was committed.
On the material before us, while we do not make a positive finding on the issue, there is no factual basis for the Applicant's assertion that DBP has committed an offence under the OSH Act. It conducted the Limited Investigation into the alleged harassment, intimidation and failure to act with professionalism and courtesy which it considered to be the hazard which had been reported by the Applicant in the meeting of 4 July 2016. It did not investigate what it regarded to be reasonable management decisions taken in respect of the Applicant.
The hazards reported were investigated and the Applicant was made aware of the outcome. The fact that DBP did not investigate every aspect of the Applicant's complaint (which he refers to as the Actual Complaint) does not necessarily mean that an offence has been committed under the OSH Act. Section 23K cannot be taken to require an employer to investigate matters reported to it which are not properly able to be characterised as a hazard.[75] Legitimate management decisions, while potentially upsetting to a person, cannot be regarded as workplace hazards.
[75] The term 'hazard' was defined in s 3 of the OSH Act as follows: 'hazard' in relation to a person means anything that may result in (a) injury to the person; or (b) harm to the person.
DBP was of the opinion that it had complied with the OSH Act in investigating the workplace bullying aspects of the Applicant's allegations.
To aid a person to commit an offence, in the ordinary sense of the words 'to aid', requires the second party to provide help, support or assistance to the other party in the commission of the offence.[76] The acts or omissions of an aider must be willed and done for the purpose of assisting in the doing of the acts which constitute the offence. Whatever the case in relation to DBP's conduct, without making a positive finding in relation to the issue, there is no material before us that establishes, or allows us to infer, or even to have a reasonable suspicion, that the Practitioner acted with the intention of assisting DBP to fail to investigate a hazard which had been reported to it or to fail to determine what action to take following the investigation, or to fail to notify the Applicant of the determination it made following the investigation, and thus to breach s 23K(2) of the OSH Act.
[76] Macquarie Dictionary Online.
Whether the Limited Investigation did or did not actually constitute an investigation into all of the hazards identified by the Applicant in his report to his employer, there is no basis for suggesting that the Practitioner's involvement in providing advice to her client or carrying out the Limited Investigation was done for the express purpose of permitting DBP to breach s 23K(2) of the OSH Act.
In our view, given the extent of the material provided to the Legal Officer and the First Respondent in the course of his consideration of the complaint, and to the Tribunal in the course of the proceeding, there is:
(a)no reasonable cause to suspect either that the Practitioner might have engaged in conduct that constitutes unsatisfactory professional conduct or professional misconduct; and
(b)no cause to think that further investigation is likely to uncover additional evidence that may alter the conclusion that there is no reasonable cause to suspect that the Practitioner might have engaged in conduct constituting unsatisfactory professional conduct or professional misconduct.
We also find that the First Respondent was correct to dismiss this aspect of the Applicant's complaint on the basis that it was misconceived and lacking in substance, and to have found it to be unreasonable.
In that circumstance we find that there can be no injustice occasioned by leaving the decision unreversed.
Leave to review that aspect of the Frist Respondent's Reviewable Decision is refused.

Item 5: The Practitioner improperly declared to the Applicant that her client had satisfied all obligations owed to him, whilst the fact was otherwise

The Applicant's Item 5 concerns the Practitioner's letter to him dated 23 December 2016.[77] In that letter, she explained to the Applicant that she had been instructed to consider the totality of the matters raised in his letter of 4 July 2016 and the matters subsequently raised, and that DBP had decided to conduct a legally privileged investigation into certain allegations and was not obliged to take any further steps. She stated that 'DBP has discharged any obligations that it has to you under the OSH Act'.
[77] First Respondent's Bundle, pages 28 – 29.
In making the Reviewable Decision, the First Respondent informed the Applicant that, in relation to Item 5:
(a)a legal practitioner provides advice to his or her client based on his or her consideration of the relevant material after exercising independent professional judgment. If DBP was incorrectly advised, then that is a matter between DBP and the Practitioner;
(b)in writing the letter of 23 December 2016, the Practitioner was acting on DBP's instructions; that there was nothing unlawful, improper or incompetent in those instructions and that it was apparent from his review of the documents that DBP considered that it had complied with the requirements of s 23K(2) of the OSH Act in respect of the workplace bullying complaint; and
(c)if he did not agree with the Practitioner's advice or remained of the view that DBP had not discharged its obligations under the OSH Act, then it was open to him to pursue any rights or remedies that may be available to him.
The Applicant's view about the Practitioner's statement that DBP had satisfied its obligations under the OSH Act stems from his view that she aided DBP in avoiding its responsibilities under the OSH Act, thereby committing an offence.
For the reasons we have set out in relation to Item 4, it follows that even if the Practitioner's statement was wrong, there was no factual foundation for his assertion that it was deliberately so or that the Practitioner's statement was capable of constituting an act of unsatisfactory professional conduct or professional misconduct.
In our view, given the extent of the material provided to the Legal Officer and the First Respondent in the course of his consideration of the complaint, and to the Tribunal in the course of the proceeding, there is:
(a)no reasonable cause to suspect either that the Practitioner might have engaged in conduct that constitutes unsatisfactory professional conduct or professional misconduct; and
(b)no cause to think that further investigation is likely to uncover additional evidence that may alter the conclusion that there is no reasonable cause to suspect that the Practitioner might have engaged in conduct constituting unsatisfactory professional conduct or professional misconduct.
We find that the First Respondent was correct to dismiss this aspect of the Applicant's complaint on the basis that it was misconceived and lacking in substance, and to have found it to be unreasonable.
In that circumstance, we find that there can be no injustice occasioned by leaving the decision unreversed.
Leave to review this aspect of the First Respondent's Reviewable Decision is refused.

Item 6: The Practitioner's client pointed to advice received from the Practitioner as the basis to reject proper dealing with evident breach of Occupation Safety and Health Law and procedural fairness obligations identified by the Applicant

This complaint appears to be, in effect, a complaint that DBP relied upon the Practitioner's advice. Such a complaint is not a complaint about the conduct of the Practitioner.
In our view, given the extent of the material provided to the Legal Officer and the First Respondent in the course of his consideration of the complaint, and to the Tribunal in the course of the proceeding, there is:
(a)no reasonable cause to suspect either that the Practitioner might have engaged in conduct that constitutes unsatisfactory professional conduct or professional misconduct; and
(b)no cause to think that further investigation is likely to uncover additional evidence that may alter the conclusion that there is no reasonable cause to suspect that the Practitioner might have engaged in conduct constituting unsatisfactory professional conduct or professional misconduct.
We find that the First Respondent was correct to dismiss this aspect of the Applicant's complaint on the basis that it was misconceived and lacking in substance, and to have found it to be unreasonable.
In that circumstance, we find that there can be no injustice occasioned by leaving the decision unreversed.
Leave to review this aspect of the First Respondent's Reviewable Decision is refused.

Item 7: The Practitioner wilfully disregarded the fact that the term 'workplace bullying' refers specifically to a pattern of unreasonable behaviour. Among other reference sources, it is defined as such by her client's signature body

Essentially, in his submissions regarding Item 7, the Applicant complains that the Practitioner breached her professional obligations by failing to acknowledge what he regards as the accepted definition of 'workplace bullying'. Again, although not expressed as such in this item, the use of the words 'wilfully disregarded' suggests that the Applicant believes that the Practitioner ignored the definition of workplace bullying in order to assist DBP to avoid a proper investigation into his actual complaint.
In his response to this item, the First Respondent concluded that because the Practitioner was only engaged by DBP to conduct the Limited Investigation, which was into certain instances of alleged 'harassment, intimidation or a failure to act with professionalism or proper courtesy', there was no requirement for the Practitioner to engage with the Applicant about the definition of workplace bullying. Accordingly, the First Respondent dismissed this aspect of the Applicant's complaint as misconceived and lacking in substance, and found it to be unreasonable and requiring no further investigation.
We find that the decision of the First Respondent to dismiss Item 7 was correct. There was no obligation for the Practitioner to deal with the Applicant in relation to his view of the definition of workplace bullying in order to perform the Limited Investigation she was engaged by her client to undertake and to provide it with advice following the completion of the Limited Investigation.
In our view, the First Respondent was correct to dismiss this aspect of the Applicant's complaint on the basis that it was misconceived and lacking in substance, and to have found it to be unreasonable. No further investigation would lead us to conclude otherwise.
In that circumstance, we find that there can be no injustice occasioned by leaving the decision unreversed.
Leave to review this aspect of the Applicant's Reviewable Decision is refused.

Item 8: The Practitioner wilfully disregarded obligations of procedural fairness properly owed by herself and also by her client

In his reasons for making the Reviewable Decision, the First Respondent noted that the Applicant had repeatedly stated that:[78]
… the practitioner improperly intervened in a dispute resolution process concerning a workplace bullying complaint evidently on-foot between [him] and his former employer in which she could play no legitimate part whatsoever due to the conflict of interest of her paramount duty to the court with her duty owed to her client.
[78] First Respondent's Bundle, page 13.
The First Respondent took the view that this item had been substantially dealt with as part of Item 1, which dealt with the same issue.
In the reasons for the Reviewable Decision, the First Respondent:
(a)explained that he found that the Practitioner was aware of the requirements of procedural fairness;
(b)noted that the Applicant had been afforded the opportunity to participate in the Limited Investigation but had chosen not to do so; and
(c)stated that he could not understand the basis of the Applicant's assertion that the Practitioner had an obligation to afford him procedural fairness when she was only undertaking the Limited Investigation on instructions from DBP.
Accordingly, the First Respondent dismissed this Item 8 as misconceived and lacking in substance, and found it was unreasonable and requiring no further investigation.
Courts and administrative decision‑makers are generally required to afford procedural fairness to persons whose interests may be affected by their decisions. In other situations, the consequences of making a decision without endeavouring to ascertain all relevant facts may depend upon the decision being made.
Where a decision‑maker owes a party procedural fairness, the content of the obligation may vary but, essentially, it requires that the person whose interests are affected by a decision be given the opportunity to know the case against them so that they can mount a proper response, and a reasonable opportunity to make their response.
In this case, assuming any obligation to afford procedural fairness in the course of the Limited Investigation existed at all, the person whose interests would be affected by decisions made as a result of the Limited Investigation would be the particular employee whose conduct the applicant alleged was harassing, lacking in professionalism and lacking in proper courtesy. While the Limited Investigation may have been deficient if the Applicant had not been given the opportunity to speak to the Practitioner and give his version of events, but he is not, in our view, a person to whom DBP, or the Practitioner, would have owed an obligation of procedural fairness.
In any event, the Applicant was given the opportunity to participate in the Limited Investigation and chose not to do so.
For those reasons, we do not consider that there is any merit in the assertion that the Practitioner wilfully disregarded the obligations of procedural fairness properly owed to him by the Practitioner and/or her client.
In our view, given the extent of the material provided to the Legal Officer and the First Respondent in the course of his consideration of the complaint, and to the Tribunal in the course of the proceeding, there is:
(a)no reasonable cause to suspect either that the Practitioner might have engaged in conduct that constitutes unsatisfactory professional conduct or professional misconduct; and
(b)no cause to think that further investigation is likely to uncover additional evidence that may alter the conclusion that there is no reasonable cause to suspect that the Practitioner might have engaged in conduct constituting unsatisfactory professional conduct or professional misconduct.
We are of the view that the First Respondent was correct to dismiss this aspect of the Applicant's complaint on the basis that it was misconceived and lacking in substance, and to have found it to be unreasonable.
In that circumstance, we find that there can be no injustice occasioned by leaving the decision unreversed.
Leave to review this aspect of the Applicant's Reviewable Decision is refused.

Item 9: The Practitioner wilfully engaged in improper conduct in the knowledge that her actions would likely result in the Applicant suffering material loss and adverse impact on his livelihood

The First Respondent responded to this aspect of the Applicant's complaint by:
(a)identifying his view that the Practitioner's duty of care was to her client, DBP, and that she was required to act in her client's best interests;
(b)stating that if the Applicant was unhappy with the resolution of his allegations by DBP, it was open to him to obtain legal advice about his options and to act upon that advice; and
(c)noting that the Applicant had accepted, in earlier correspondence addressed to the Practitioner, that she could not have been aware of the materiality of the complaint of workplace bullying on his assets and livelihood, given that the behaviour complained of had taken place over 18 months and culminated in his being made redundant.
Accordingly, the First Respondent dismissed this item as misconceived, and lacking in substance, and found it to be both unreasonable and requiring of no further investigation.
Even if the Applicant's allegations of workplace bullying were correct, and the bullying had occurred, the Applicant had been made redundant before the Second Respondent was engaged by DBP to conduct the Limited Investigation and to provide it with legal advice. Any financial consequences for the Applicant as a result of the conduct had already occurred. The Second Respondent could have had no hand in bringing about those consequences. If the Applicant had any legal basis for seeking to recover any financial losses from DBP, he could have exercised his rights irrespective of the fact that the Second Respondent was conducting the Limited Investigation.
There is no factual basis for any suggestion that an outcome of the Limited Investigation may have been the re‑employment of the Applicant by DBP. The scope of the Limited Investigation suggests otherwise. There is no factual basis for the assertion that the Second Respondent knew that her actions would result in the Applicant suffering financial loss. She could not have known what he would do in respect of any claim he may have been able to make for compensation for losses he claimed to have suffered as a result of the alleged workplace bullying he endured and which he was at liberty to pursue.
Further, given that the Limited Investigations concerned the conduct of other DBP employees, it is not apparent that the Second Respondent's conduct of that investigation could have had any impact at all upon the financial position of the Applicant.
There is no factual basis for any suspicion that the undertaking of the Limited Investigation by the Practitioner in some way interfered with potential witnesses to any claim for compensation the Applicant may have had so as to defeat that claim.
In our view, given the extent of the material provided to the Legal Officer and the First Respondent in the course of his consideration of the complaint, and to the Tribunal in the course of the proceeding, there is:
(a)no reasonable cause to suspect either that the Practitioner might have engaged in conduct that constitutes unsatisfactory professional conduct or professional misconduct; and
(b)no cause to think that further investigation is likely to uncover additional evidence that may alter the conclusion that there is no reasonable cause to suspect that the Practitioner might have engaged in conduct constituting unsatisfactory professional conduct or professional misconduct.
Indeed, we find that the First Respondent was correct to dismiss this aspect of the Applicant's complaint on the basis that it was misconceived and lacking in substance, and to have found it to be unreasonable.
In that circumstance, we find that there can be no injustice occasioned by leaving the decision unreversed.
Leave to review this aspect of the First Respondent's Reviewable Decision is refused.

Item 10: The Practitioner's breach of the 'no contact' rule in the context of the element of the rule's purpose to ensure a solicitor's expertise cannot be used unfairly in dealing with a layperson.

The Applicant stated that the Second Respondent breached the 'no contact rule' in that she failed to inform him at the time she first contacted him that he was entitled to seek his own legal advice or representation, and that she only did so when he raised issues of professional misconduct.
The First Respondent dismissed this aspect of the Applicant's complaint for the following reasons:
1.The no contact rule, being r 37(4) of the Rules, only applied to prohibit a practitioner dealing directly with another party who is legally represented. Accordingly, because the Applicant was not legally represented, it did not preclude the Practitioner from communicating directly with him.
2.The Second Respondent had no obligation to advise the Applicant to seek his own legal advice. Whether to seek legal advice is a matter for each individual to consider and determine.
3.The Second Respondent did not use her expertise to the detriment of the Applicant in any of her communications with him. Her communications consisted of the provision of information about the Limited Investigation and an invitation to participate in that limited investigation.
Rule 37(4) of the Rules provided:
A practitioner must not confer or deal directly with an opponent who is represented by another practitioner unless —
(a) the other practitioner has previously consented to the dealing; or
(b) the practitioner believes on reasonable grounds that —
(i) the circumstances are so urgent as to require the practitioner to do so; and
(ii) the dealing would not be unfair to the other practitioner's client;
or
(c)the substance of the dealing is solely to enquire whether the opponent is represented and, if so, by whom; or
(d) notice has been given to the other practitioner of the practitioner's intention to communicate with the opponent and the other practitioner has failed to respond to the notice within a reasonable time and there is a reasonable basis for proceeding with the communication.
Rule 37 was within Pt 6 of the Rules. That Part was headed 'Advocacy and Litigation'. Rule 37 itself was headed 'Communication with Opponents'. Those matters, together with the express words of s 37(4) which refer to a practitioner conferring with an opponent who is legally represented, mean that that rule was of no application to the Practitioner's communications with the Applicant. He was not a party to any litigation; she was not acting for DBP in relation to any litigation and the Applicant was therefore not an 'opponent' in the sense with which that word is used in the Rules. Additionally, he was not legally represented so the Rule would not have applied in any event.
The Practitioner's correspondence with the Applicant was confined to extending to him an invitation to participate in the Limited Investigation, the terms of which she explained to him. That communication was entirely appropriate, and her correspondence was written in terms which could attract no criticism, being both polite and informative. Having examined the correspondence, we cannot find that the Practitioner somehow used her legal expertise to overbear the Applicant or to convince him of a legal position that was incorrect or untenable.
To the extent, if any, that the Applicant formed a view from the Practitioner's correspondence that she was investigating his conduct and that he had reason to be cautious of her invitation to participate in the Limited Investigation and, therefore, that he should have been informed that he could seek his own legal representation, two things can be said. First, on any reading of her correspondence, it could not have reasonably given him that impression. Second, the Practitioner had no obligation to inform the Applicant that he could seek his own legal advice.
In our view, the First Respondent was correct to dismiss this aspect of the Applicant's complaint on the basis that it was misconceived and lacking in substance, and to have found it to be unreasonable. In our view, given the extent of the material provided to the Legal Officer and the First Respondent in the course of his consideration of the complaint, and to the Tribunal in the course of the proceeding, there is:
(a)no reasonable cause to suspect either that the Practitioner might have engaged in conduct that constitutes unsatisfactory professional conduct or professional misconduct; and
(b)no cause to think that further investigation is likely to uncover additional evidence that may alter the conclusion that there is no reasonable cause to suspect that the Practitioner might have engaged in conduct constituting unsatisfactory professional conduct or professional misconduct.[79]
[79] See the test set out in Chen at [96] – [99].
In that circumstance, we find that there can be no injustice occasioned by leaving the decision unreversed.
Leave to review this aspect of the First Respondent's Reviewable Decision is refused.

Conclusion

The fact that the Applicant is aggrieved that DBP did not conduct an investigation into what he regarded as his actual complaint does not lead to the conclusion that the Practitioner's conduct, in conducting the Limited Investigation and providing advice to her client, was improper. Having reviewed all of the materials, we can see that the Practitioner contacted the Applicant and informed him that she was acting for DBP, informed him of the specific matters she had instructions to consider (i.e. the scope of the Limited Investigation) and that her report would be provided to DBP and would be the subject of legal professional privilege. She also invited his participation in the Limited Investigation but advised him that he could not be compelled to participate. We find that her correspondence was informative, accurate and respectful. Her conduct did not breach r 37(4) of the Rules.
There is no foundation for any suggestion that the Practitioner's conduct interfered with any rights the Applicant may have had as a result of what he regards to have been long-term bullying by other employees. There is no factual basis for any suggestion that the Practitioner colluded with DBP to enable it to avoid its obligations under the OSH Act or to the Applicant. There is no basis for any suggestion that, by her conduct, the Second Respondent knowingly or otherwise caused the Applicant any financial loss.
We do not find that any of the First Respondent's conclusions in relation to the Applicant's 10 items of complaint were wrong or attended with sufficient doubt as to justify the grant of leave. It has not been established that a substantial injustice would be done by leaving the First Respondent's Reviewable Decision unreversed.
Accordingly, we refuse the Applicant's application for leave to review the Reviewable Decision.

Orders

As a result of the decision we have reached, we make the following orders:
1.The name of the First Respondent is amended from 'Legal Profession Complaints Committee' to 'Law Complaints Officer as delegate of the Legal Profession Complaints Committee'.
2.Leave to review the First Respondent's decision of 13 April 2021 is refused.
3.The Applicant's application dated 26 February 2021 is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS
Associate to Judge Glancy
31 AUGUST 2023