| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : MARTELLI and LEGAL PROFESSION COMPLAINTS COMMITTEE [2011] WASAT 179 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) MR M SPILLANE (SENIOR MEMBER)
MS M CONNOR (MEMBER)
HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 9 NOVEMBER 2011 FILE NO/S : VR 127 of 2011 BETWEEN : SANTO MARTELLI Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
STEPHEN RANDO
Second Respondent
Catchwords: Legal practitioners Leave to apply for review of decision of Legal Profession Complaints Committee to dismiss complaints made by former client against legal practitioner who represented him in personal injuries matter Whether decision to dismiss complaints was wrong or attended by sufficient doubt to justify the grant of leave Review of decision of Legal Profession Complaints
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Committee to dismiss complaints by former client against legal practitioner Whether there is a reasonable likelihood that the Tribunal would find the practitioner guilty of unsatisfactory professional conduct or professional misconduct Legislation: Legal Profession Act 2008 (WA), s 402, s 403, s 410, s 425, s 435(1), s 435(1)(a), s 435(2), s 437(1), s 437(2)
State Administrative Tribunal Act 2004 (WA), s 3(1), s 24, s 60(2) Result: Application for leave to seek review of decision to dismiss complaints 3, 4, 6 and 7 dismissed
Application for review of decision to dismiss complaints 1, 2 and 5 dismissed Category: B
Representation: Counsel:
Applicant : Self-represented
First Respondent : Ms P Le Miere
Second Respondent : Self-represented
Solicitors:
Applicant : N/A
First Respondent : Law Complaints Officer
Second Respondent : Self-represented
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Greenwood and Legal Profession Complaints Committee [2010] WASAT 31
Vella and Bowden [2011] WASAT 56
Winzer and Roberts-Smith [2011] WASAT 140
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 Mr Santo Martelli made seven complaints to the Legal Profession Complaints Committee about Mr Stephen Rando, a legal practitioner, who represented Mr Martelli in a personal injuries matter. The Legal Profession Complaints Committee dismissed each of Mr Martelli's complaints on the basis that there is no reasonable likelihood that Mr Rando would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct if the complaints were referred to the Tribunal. 2 Mr Martelli sought review by the Tribunal of the Legal Profession Complaints Committee's decision. As the Legal Profession Complaints Committee specifically found that four of the seven complaints were 'unreasonable', Mr Martelli required the leave of the Tribunal in order to be able to seek review of the dismissal of those complaints. 3 The Tribunal took the opportunity presented by the case to restate the applicable principles. 4 The Tribunal determined that the application for leave to seek review of the decision to dismiss the four complaints for which leave was required should be dismissed as the decision was not wrong or attended by sufficient doubt to justify the grant of leave. The Tribunal also determined that the application for review of the decision to dismiss the other three complaints should be dismissed, and the decision affirmed, because there is not any reasonable likelihood that the Tribunal might, on referral to it by the Legal Profession Complaints Committee of the complaints, find Mr Rando guilty of either unsatisfactory professional conduct or professional misconduct.
Introduction 5 Section 410 of the Legal Profession Act 2008 (WA) (LP Act) enables a complaint to be made to the Legal Profession Complaints Committee (Committee) about an Australian legal practitioner by any person who has or had a direct personal interest in the matters alleged in the complaint. On 26 November 2009, Mr Santo Martelli made complaints under s 410 of the LP Act to the Committee about Mr Stephen Rando, a legal practitioner, in relation to Mr Rando's conduct of a personal injuries matter in which he represented Mr Martelli. On 14 May 2010, (Page 4)
Mr Martelli made further complaints to the Committee in relation to Mr Rando's conduct of the matter. 6 The personal injuries matter arose out of a motor vehicle accident that occurred on 11 October 2007 in which Mr Martelli was injured. The personal injuries matter was settled on 21 September 2009, at a pretrial conference in the District Court, when Mr Martelli accepted an offer of settlement made by the Insurance Commission of Western Australia (Commission) of $30,000 plus $8,300.20 towards legal fees and disbursements. 7 Ultimately, Mr Martelli made seven complaints to the Committee about Mr Rando. Mr Martelli's complaints are conveniently stated as follows: 1) Mr Rando placed undue pressure on Mr Martelli to settle the personal injuries matter. 2) Mr Rando was not interested in how Mr Martelli felt or what Mr Martelli wanted. 3) Mr Rando requested a medico-legal report from Mr John O'Connor, a consultant orthopaedic surgeon, in circumstances where Mr O'Connor had been engaged by the Commission and Mr Martelli considered Mr O'Connor was not independent. 4) Mr Rando failed to forward Mr Martelli's medical treatment accounts to the Commission for payment. 5) Contrary to the terms of the retainer, Mr Rando took more than 10% of the settlement amount for legal fees and disbursements. 6) Mr Rando cancelled an informal settlement conference that was scheduled to take place on 16 June 2009 without Mr Martelli's instructions. 7) Mr Rando requested a medical report from Mr O'Connor without Mr Martelli's instructions and in circumstances where Mr Martelli did not require the report. 8 Section 425 of the LP Act states as follows: (Page 5)
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. 9 After investigating Mr Martelli's complaints about Mr Rando, on 15 June 2011, the Committee dismissed each of the complaints, pursuant to s 425 of the LP Act, as it was satisfied that there is no reasonable likelihood that Mr Rando would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct. In its reasons for its decision, the Committee specifically found complaints 3, 4, 6 and 7 to be 'unreasonable'. 10 On 8 July 2011, Mr Martelli filed an application with the Tribunal pursuant to s 435(1)(a) of the LP Act. Section 435(1) of the LP Act states, in part, as follows: (1) Subject to subsection (2), a person aggrieved by 11 Section 435(2) of the LP Act, to which s 435(1) is subject, states, in part, as follows: If the Complaints Committee, in its reasons for its decision, specifically finds the complaint (a) to be trivial, unreasonable, vexatious or frivolous; … the person aggrieved cannot apply to the State Administrative Tribunal for a review of the decision without the leave of the Tribunal. 12 As the Committee specifically found that complaints 3, 4, 6 and 7 are 'unreasonable', Mr Martelli requires leave pursuant to s 435(2) of the LP Act to seek review of the Committee's decision to dismiss those (Page 6)
complaints. An application for leave pursuant to s 435(2) of the LP Act is arguably a 'procedural hearing' for the purposes of s 437(2) of the LP Act, and could, therefore, be heard by the Tribunal constituted by the President or a Deputy President. However, as the Committee did not, in its reasons for its decision, specifically find that complaints 1, 2 and 5 are trivial, unreasonable, vexatious or frivolous and as, therefore, Mr Martelli does not require leave to seek review of the Committee's decision to dismiss those complaints, the Tribunal is required to be constituted by three members pursuant to s 437(1) of the LP Act for the determination of the application for review. Furthermore, on 6 September 2011, the President, Justice Chaney, directed that, subject to any further order, 'the matter' is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). 'The matter' includes, in relation to complaints 3, 4, 6 and 7, not only the leave application, but also, if leave is granted, the application for review. Therefore, in order to determine 'the matter', the Tribunal has been constituted under s 437(1)(b) of the LP Act by a Deputy President, a senior member who is a legally qualified member as defined in s 3(1) of the SAT Act and a third member who is not a legal practitioner but has knowledge and understanding of the interests of a person dealing with a legal practitioner. 13 The documents on which the matter is to be determined are Mr Martelli's application to the Tribunal filed on 8 July 2011 and the Committee's bundle of documents filed pursuant to s 24 of the SAT Act on 5 August 2011.
Applicable principles 14 As the President, Justice Chaney said in Winzer and RobertsSmith [2011] WASAT 140 at [8]: The question of leave pursuant to s 435(2) of the LP Act is to be determined according to the principles outlined in Wilson v Metaxis (1989) WAR 285. In that case, the full Supreme Court found that for leave to be granted: 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 that substantial injustice would be done by leaving the decision unreversed. What is substantial injustice must depend on all of the circumstances of the case. (Page 7)
15 The key considerations in an application for leave pursuant to s 435(2) of the LP Act can, therefore, be summarised as follows: Whether the Committee's decision to dismiss the complaint on the basis (as applicable) that there is no reasonable likelihood that the practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct, or that it is in the public interest to do so, was wrong, or attended with sufficient doubt to justify the grant of leave, and, if so, whether substantial injustice would be done by leaving the decision unreversed. 16 If leave is granted under s 435(2) of the LP Act for the review of a decision of the Committee to dismiss a complaint against a practitioner, or if leave is not required for a review, then, as the Tribunal said in Vella and Bowden[2011] WASAT 56 at [6]: In reviewing the Complaints Committee's decision, the function of the Tribunal is to conduct a hearing de novo, that is, to consider each of the complaints … and to determine whether there is any reasonable likelihood that the Tribunal might, on referral to it [by the Committee] of the complaints [under s 428 of the LP Act], find [the practitioner] guilty of either unsatisfactory professional conduct or professional misconduct. 17 'Unsatisfactory professional conduct' is defined in s 402 of the LP Act as follows: 402. 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. 18 'Professional misconduct' is defined by s 403 of the LP Act as follows: (Page 8)
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. 19 The meaning of the expression 'reasonable likelihood' in s 425 of the LP Act was discussed by the Tribunal in Greenwood and Legal Profession Complaints Committee [2010] WASAT 31 (Greenwood) at [27] [29] as follows: The 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'. Those observations are equally apt to describe the meaning of 'reasonable likelihood' in s 425 of the LP Act. In considering whether there is a reasonable likelihood that a practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct, it is also necessary to bear in mind the Tribunal's approach to the proof of matters referred to it under s 428(1) of the LP Act. It is well recognised that the consequences for a practitioner of an adverse (Page 9)
determination are such that clear and cogent evidence will be required before a finding of unsatisfactory professional conduct or professional misconduct is made: Legal Practitioners Complaints Committee and Trowell[2009] WASAT 42 at [63]. That follows from the fact that although the standard of proof is on the balance of probabilities, nevertheless the Tribunal must feel an 'actual persuasion' of the occurrence or existence of a relevant fact in determining whether or not conduct of that kind has been made out: Briginshaw v Briginshaw(1938) 60 CLR 336at 361 to 362 (Dixon J).
Issues for determination 20 The issues in this proceeding are as follows: 1) Whether leave should be granted pursuant to s 435(2) of the LP Act to enable Mr Martelli to seek review of the decision of the Committee to dismiss any or all of his complaints 3, 4, 6 and 7. 2) If the answer to issue 1 is 'yes', whether there is any reasonable likelihood that the Tribunal might, on referral to it of any or all of the complaints in respect of which leave to seek review is granted, find Mr Rando guilty of either unsatisfactory professional conduct or professional misconduct. 3) Whether there is any reasonable likelihood that the Tribunal might, on referral to it of any or all of complaints 1, 2 or 5, find Mr Rando guilty of either unsatisfactory professional conduct or professional misconduct.
Should leave be granted pursuant to s 435(2) of the LP Act?
Complaints 3 and 7 Obtaining a medico-legal report from a medical practitioner who was not independent/without instructions and in circumstances where Mr Martelli did not require the report 21 In September 2008, Mr Rando arranged for Mr Martelli to be seen on 14 November 2008 by Mr John O'Connor, a consultant orthopaedic surgeon. On 17 September 2008, Mr Rando wrote to Mr O'Connor enclosing all medical reports in Mr Rando's possession and requesting Mr O'Connor to provide a medicolegal report in relation to 13 specific matters, including: (Page 10)
22 On 17 September 2008, Mr Rando also wrote to Mr Martelli advising him of the time and date of his appointment with Mr O'Connor and requesting him to 'confirm with our office that you will be able to attend the above appointment'. Mr Rando also enclosed a copy of his letter to Mr O'Connor of 17 September 2008 and requested Mr Martelli to 'be prepared to discuss all of which we have raised in the enclosed letter and any additional matters which you believe should be included in the report' at the appointment. 23 Mr Martelli attended the appointment with Mr O'Connor on 14 November 2008. On that day, Mr O'Connor prepared a five page medicolegal report addressing each of the 13 matters identified in Mr Rando's letter of 17 September 2008. In his report, Mr O'Connor expressed the opinion that Mr Martelli 'will be left with a permanent functional loss' as a result of the motor vehicle accident and, in particular, 'a 5% loss of cervical spine function and a similar 5% loss of lumbar spine function'. Mr O'Connor also expressed the opinion that Mr Martelli 'can proceed to finalisation of his claim'. 24 On 21 November 2008, Mr Rando wrote to Mr Martelli, enclosing a copy of Mr O'Connor's report of 14 November 2008, and advising that 'we now intend to organise a settlement conference with the Insurance Commission in relation to your claim'. It appears that Mr Rando then provided a copy of Mr O'Connor's report to the Commission and arranged for a settlement conference to take place on 11 December 2008. At the settlement conference on 11 December 2008, the Commission increased its offer of settlement, exclusive of legal fees and disbursements, from $10,130 to $17,633. 25 Mr O'Connor was an independent medical specialist who was retained by Mr Rando to prepare a medicolegal report on behalf of Mr Martelli. Contrary to Mr Martelli's third complaint, Mr O'Connor was not engaged by the Commission, although a copy of Mr O'Connor's report was provided to the Commission. (Page 11)
26 It was necessary and appropriate for Mr Rando to obtain a medicolegal report from a medical practitioner in order to advance Mr Martelli's personal injuries claim. 27 Mr Martelli was given eight weeks' notice of the appointment with Mr O'Connor and was asked to confirm with Mr Rando's office that he would be able to attend the appointment. Mr Martelli did not indicate that he did not require the report, nor that he did not consider Mr O'Connor to be independent, during the eight weeks, and indeed he attended the appointment and was examined by Mr O'Connor. 28 Mr Rando identified 13 relevant matters for assessment and report by Mr O'Connor, and Mr O'Connor provided responses to these matters. 29 Furthermore, following the provision of Mr O'Connor's report to the Commission, the Commission increased its offer of settlement. 30 In light of the matters referred to in the preceding paragraphs, the decision of the Committee to dismiss Mr Martelli's complaints 3 and 7 was clearly correct. The decision was hardly wrong or attended with sufficient doubt to justify the grant of leave. There is no reasonable likelihood that Mr Rando would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct in relation to complaints 3 or 7.
Complaint 4 Failure to forward medical treatment accounts to the Commission for payment 31 It is clear from correspondence between Mr Rando and the Commission that he sought reimbursement of Mr Martelli's treatment costs on a number of occasions. The Commission rejected Mr Rando's requests. However, it appears that the settlement of $30,000 for the personal injuries claim included an allowance towards further physiotherapy expenses. 32 Consequently, the decision of Committee to dismiss Mr Martelli's fourth complaint on the basis that there is no reasonable likelihood that Mr Rando would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct in relation to this complaint was correct. The decision was not wrong or attended with sufficient doubt to justify the grant of leave. (Page 12)
Complaint 6 Cancellation of an informal conference without instructions 33 On 11 June 2009, Mr Rando had a telephone discussion with Mr Martelli. Mr Martelli advised Mr Rando that he was not going to accept any offers made by the Commission and that he wanted to proceed to a pretrial conference as soon as possible. When Mr Rando suggested that the informal conference scheduled for 16 June 2009 should be cancelled, Mr Martelli responded '… do whatever you like …'. On that day, Mr Rando wrote to the Commission's solicitors stating that: We are instructed by our client to cancel the Conference. 34 On the same day, Mr Rando wrote to Mr Martelli confirming that he had cancelled the informal conference and advising that Mr Martelli's attendance at the conference would no longer be necessary. Mr Rando also said: We are pushing forward with the District Court proceedings and will keep you advised of developments as they occur. 35 There was no correspondence or any other indication from Mr Martelli at the time suggesting that he did not give instructions or agree to the cancellation of the informal conference. 36 Consequently, the decision of the Committee to dismiss Mr Martelli's sixth complaint on the basis that there is no reasonable likelihood that Mr Rando would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct in relation to this complaint was correct. The decision was not wrong or attended by sufficient doubt to justify the grant of leave. 37 It follows that the application by Mr Martelli for leave pursuant to s 435(2) of the LP Act to seek review of the decision of the Committee to dismiss each of complaints 3, 4, 6 and 7 should be dismissed. Consequently, issue 2 does not arise for determination.
Is there any reasonable likelihood that the Tribunal might find Mr Rando guilty of either unsatisfactory professional or professional misconduct in relation to complaints 1, 2 or 5?
Complaint 1 Undue pressure to settle 38 Mr Martelli complained to the Committee that he did not want to settle his personal injuries matter on 21 September 2009, but was (Page 13)
pressured by Mr Rando to settle and, indeed, Mr Rando started screaming at Mr Martelli that judges may not be sympathetic to him. 39 On 18 June 2009, Mr Rando wrote to Mr Martelli noting that the Commission had made a total of five offers of settlement, increasing from an initial offer of $6,630 to, ultimately, an offer of $27,500 which, Mr Rando pointed out, 'is indeed an offer of $43,000 when you take into account the deductable threshold of $15,500 which does not have to be paid to you'. The letter also included the following: The best medical evidence which we have on file is that of Mr John O'Connor, Consultant Orthopaedic Surgeon. He believes that you have a 5% loss of cervical spine function and a 5% loss of lumbar spine function. Based on that evidence the current offer of $27,500.00 is about what a Judge of the District Court may award you for your claim. We do not expect that the Insurance Commission will increase on its current offer of $27,500.00 but, it is worth trying to get them to increase. In the writer's view, if there is going to be an increase it will most likely be to $30,000.00. We strongly suggest that if the Insurance Commission were to increase its offer to $30,000.00, that you accept it. 40 By letter dated 19 June 2009, the solicitors for the Commission increased the offer of settlement 'on an entirely without prejudice and without any admission of liability basis' to $30,000 (inclusive of an allowance towards further physiotherapy expenses). The Commission also made an offer of a contribution to Mr Martelli's legal costs and disbursements in the sum of $6,500 'plus reasonable proven disbursements'. 41 At the pretrial conference in the District Court, which took place before Registrar Hewitt on 21 September 2009, the Commission's solicitor indicated that the Commission was not prepared to increase its final offer of $30,000 plus $6,500 towards legal fees. Mr Rando's file note states that Registrar Hewitt 'gave the impression that in his view the offer made was reasonable'. The file note records that Mr Rando 'then spoke to client about the next step of going to trial and the costs implication' and that 'client then agreed to accept offer of $30,000 and I was then able to agree costs and disbursements of $8,300.20'. 42 Mr Martelli signed an agreement to settle the personal injuries claim on 21 September 2009. 43 In our view, there is no reasonable likelihood that the Tribunal would find Mr Rando guilty of either unsatisfactory professional conduct or (Page 14)
professional misconduct if complaint 1 were referred to the Tribunal. In his letter of 18 June 2009, Mr Rando fairly and correctly recounted the offers made by the Commission and Mr Martelli's prospects of success on the basis of the available evidence. On 19 June 2009, the solicitors for the Commission increased the offer of settlement to the upper limit of what Mr Rando had advised Mr Martelli on 18 June 2009 was reasonably achievable. The Commission would not increase the offer any further. On 21 September 2009, Mr Martelli agreed to accept the offer of $30,000 plus contribution to costs and disbursements and, indeed, signed an agreement to settle the matter on that day. 44 As the Committee recognised, there is a conflict of evidence between Mr Martelli and Mr Rando as to whether Mr Rando screamed at Mr Martelli that if he did not settle the claim the judge may not be sympathetic to him. As the Tribunal said in Greenwood at [29], although the standard of proof in disciplinary proceedings is on the balance of probabilities, under the Briginshawprinciple (Briginshaw v Briginshaw(1938) 60 CLR 336 at 361 to 362), 'nevertheless the Tribunal must feel an "actual persuasion" of the occurrence or existence of a relevant fact in determining whether or not conduct of that kind has been made out'. In light of the conflict of evidence as to whether Mr Rando screamed at Mr Martelli and the documentary evidence which clearly indicates that Mr Rando gave Mr Martelli competent advice, that the final offer of the Commission was at the upper limit of what was reasonably likely to be awarded, based on the evidence, and that Mr Martelli agreed to the settlement offer in writing, there is no reasonable likelihood that the Tribunal would feel an actual persuasion that Mr Rando applied undue pressure to Mr Martelli to settle his claim or that he screamed at Mr Martelli, and, therefore, that the Tribunal would find Mr Rando guilty of either unsatisfactory professional conduct or professional misconduct.
Complaint 2 Failure to take into account how Mr Martelli was feeling or what he wanted 45 There appears to be no basis for this complaint. It is clear from Mr Rando's correspondence with the solicitors for the Commission that he was aware that Mr Martelli was experiencing pain and was obtaining treatment. Mr Rando sought reimbursement of Mr Martelli's treatment costs. It is also clear from Mr Rando's letters to Mr Martelli that he was very much interested in knowing what Mr Martelli wanted in relation to the claim. Mr Rando regularly informed Mr Martelli of the current situation in relation to his claim and sought his instructions. Mr Rando also gave Mr Martelli competent and objective advice in relation to what (Page 15)
he could reasonably expect to obtain from the resolution of his claim, in light of the evidence. There is, therefore, no reasonable likelihood that Mr Rando would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct in relation to Mr Martelli's second complaint.
Complaint 5 Taking more than 10% of the settlement amount 46 Mr Martelli referred to the following paragraph of Mr Rando's retainer entered into in November 2007: 47 As noted earlier, Mr Martelli accepted settlement of his claim in the sum of $30,000 plus a contribution of $8,300.20 towards his legal fees and disbursements. On 21 September 2009, Mr Rando rendered a tax invoice to Mr Martelli for his costs of and incidental to the personal injuries claim in the amount of $8,300.20, which included $5,989 legal fees (inclusive of GST) and $2,311.20 in disbursements (including Mr O'Connor's fee). Thus, the only legal fees and disbursements charged to Mr Martelli were the fees and disbursements paid by the Commission. 48 Mr Rando did not take more than 10% indeed, he did not take any of Mr Martelli's compensation amount of $30,000. There is, therefore, no reasonable likelihood that Mr Rando would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct.
Conclusion 49 Mr Martelli's application for leave pursuant to s 435(2) of the LP Act to seek review of the decision of the Committee to dismiss each of Mr Martelli's complaints 3, 4, 6 and 7 should be dismissed. As there is no reasonable likelihood that the Tribunal would, on referral by the Committee to it of any of complaints 1, 2 or 5, find Mr Rando guilty of either unsatisfactory professional conduct or professional misconduct, the application for review of the Committee's decision to dismiss these complaints should be affirmed. (Page 16)
Orders 50 The Tribunal makes the following orders: 1. The application for leave pursuant to s 435(2) of the Legal Profession Act 2008 (WA) to seek review of the decision of the first respondent to dismiss the applicant's complaints 3, 4, 6 and 7 is dismissed. 2. The application for review of the first respondent's decision to dismiss the applicant's complaints 1, 2 and 5 is dismissed. 3. The decision of the first respondent to dismiss the applicant's complaints 1, 2 and 5 about the second respondent is affirmed. |