Mateljan v Legal Services Complaints Committee
[2025] WASC 170
•13 MAY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: MATELJAN -v- LEGAL SERVICES COMPLAINTS COMMITTEE [2025] WASC 170
CORAM: GETHING J
HEARD: 8 MAY 2025
DELIVERED : 13 MAY 2025
FILE NO/S: CIV 1436 of 2025
BETWEEN: DOUGLAS STEVEN MATELJAN
Plaintiff
AND
LEGAL SERVICES COMPLAINTS COMMITTEE
Defendant
Catchwords:
Practice and procedure - Proposed application for judicial review refused by registrar - Leave sought to file the proposed application - Whether proposed claim is frivolous, vexatious, or an abuse of process - Turns on own facts
Legislation:
Interpretation Act 1984 (WA) s 37
Legal Profession Act 2008 (WA) s 428
Legal Profession Uniform Law Application Act 2022 (WA) s 30(3)
Rules of the Supreme Court 1971 (WA) O 67 r 5
Result:
Leave to file refused
Category: B
Representation:
Counsel:
| Plaintiff | : | In person |
| Defendant | : | Mr F X Hall |
Solicitors:
| Plaintiff | : | In person |
| Defendant | : | Legal Services and Complaints Committee |
Case(s) referred to in decision(s):
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
In the Matter of Rules of the Supreme Court 1971 (WA); Ex parte Huggins [2024] WASC 301
Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303
Kounis v Westpac Banking Corporation [No 2] [2023] WASCA 185
Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509; (1994) 121 ALR 148
Papamihail v Legal Profession Complaints Committee [2023] WASC 183
Re Rules of the Supreme Court 1971 (WA); Ex parte Frigger [2024] WASC 7
Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213
Re Rules of the Supreme Court 1971 (WA); Ex parte Khosa [2023] WASC 477
Re Rules of the Supreme Court 1971 (WA); Ex parte Kiefer [2025] WASC 45
Sethi v Bhavsar [2020] WASCA 52
Smart v Prisoner Review Board (WA) [2012] WASC 48
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
GETHING J:
On 19 March 2025 Mr Mateljan wrote to the court seeking a reduction in fees (Fees Application) in relation to a proposed notice of originating motion in which Mr Mateljan was the plaintiff and the Legal Services Complaints Committee (LSCC) was the defendant (Proposed Notice). The Fees Application was referred to a registrar for determination, including whether the Proposed Notice would ultimately be accepted for filing.
The registrar formed the view that the Proposed Notice would be refused for filing pursuant to Rules of the Supreme Court 1971 (WA) (RSC) O 67 r 5. That rule relevantly provides that if any application which is presented for filing, issue or sealing appears to the registrar to be an abuse of the process of the court or a frivolous or vexatious proceeding, the registrar shall refuse to file or issue such application without the party seeking to file it first having obtained the leave of a judge to do so. The party seeking leave is then required to apply to a judge in chambers by ex parte application supported by affidavit.
The registrar advised Mr Mateljan of his view by letter dated 28 March 2025.
In response, on 23 April 2025 Mr Mateljan filed what purports to be an originating motion seeking leave to commence the action set out in the Proposed Notice (Application). I say purported as the Application does not comply with the procedural requirements set out in the RSC. I propose to put this non-compliance to one side and determine the Application on its merits.
The Application was heard by me on 8 May 2025. Mr Mateljan appeared in person. Through an error by the registrar, the LSCC was served with a listing notice for the hearing. It filed a notice of appearance and attended by counsel. I told counsel that the listing was in error, and that the proceeding was ex parte. Consequently, counsel did not seek to make any submissions in relation to the Application.
At the conclusion of the hearing, I advised Mr Mateljan that the Application would be dismissed, and said I would publish my reasons for coming to that decision. My reasons are as follows.
Mr Mateljan's position
Mr Mateljan filed three affidavits in support of the Application filed 23 April 2025 (23 April Affidavit), 30 April 2025 (30 April Affidavit) and 8 May 2025 (May Affidavit). Again, while none of these affidavits are in the proper form, I will again put this to one side.
Mr Mateljan annexes a copy of the Proposed Notice to the 30 April Affidavit. He is the plaintiff and the defendant is the LSCC. The orders sought and the grounds on which they are sought is set out in the Proposed Notice are as follows.
ORDERS SOUGHT
1.An order quashing the decision of the Legal Services Complaints Committee (LSCC) to dismiss Matters 1 to 4 of the Plaintiff's complaint without consultation or explanation.
2.An order directing the LSCC to reconsider Matters 1 to 4 and other serious compliance matters raised in my complaint in accordance with the Legal Profession Act 2008 (WA) and the principles of procedural fairness.
3.A declaration that the LSCC failed to exercise its statutory duty under the Legal Profession Act 2008 (WA) by refusing to investigate complaints relating to excessive legal fees and professional misconduct.
4.An order compelling the LSCC to provide written reasons for the decision to dismiss Matters 1 to 4 and other serious compliance matters raised in my complaint.
5.An order requiring the LSCC to recover my complete legal file, which was first requested by my lawyer Glenn Giles of Taylor Smart, Lawyers and Notaries, on 3 August 2018.
6.An order directing the LSCC to acknowledge its regulatory failures, review all my incurred legal costs, and reimburse any expenses deemed unreasonable due to LSCC's incompetence and excessive delays.
7.Such further or other orders as the Court deems appropriate.
GROUNDS OF APPLICATION
•The LSCC failed to investigate the forged Power of Attorney despite written acknowledgment of its existence.
•The LSCC failed to enforce compliance from Vito Dangubic in returning the Plaintiff's complete client file, despite being aware of the issue.
•The LSCC failed to investigate the misrepresentation of legal fees and improper payment instructions, leading to substantial financial prejudice.
•The LSCC failed to investigate the significant issues raised in the complaint, including fee misrepresentation and the improper handling of client funds.
•The LSCC failed to provide written reasons for its decision to dismiss four critical matters, which constitutes a breach of procedural fairness and natural justice.
•The LSCC had the legal power to compel disclosure of the Plaintiffs legal file but failed to take action, obstructing the Plaintiff's ability to challenge excessive fees and defend against a fraudulent claim in the Croatian courts.
Mr Mateljan annexed to the 23 April Affidavit a copy of a letter from the Legal Profession Complaints Committee (LPCC) to him dated 21 April 2021. That letter related to a complaint by Mr Mateljan to the LPCC in relation to the conduct of a legal practitioner, Vitomir Dangubic. The matter in which the complaint arose was Mr Dangubic acting for Mr Mateljan from about August 2009 to about July 2013 in respect of ownership of a parcel of land in Croatia (Matter). The LPCC advised Mr Mateljan that it had resolved pursuant to Legal Profession Act 2008 (WA) (LPA) s 428 to refer the conduct of Mr Dangubic in relation to the Matter to the State Administrative Tribunal (SAT). Five instances of conduct were going to be referred:
After a careful consideration of your complaints, and the submissions in response to them, the Committee resolved, pursuant to section 428 of the Legal Profession Act 2008 (WA) (LP Act), that the matter of the practitioner's conduct in, and in connection with, or incidental to, acting for you from about August 2009 to about July 2013 in respect of the ownership of a parcel of land in Croatia (the Matter):
1.in failing to provide you with adequate disclosure of his firm's costs for acting for you in the Matter, contrary to ss 260 and 262 of the LP Act;
2.in failing to provide you with adequate disclosure of the costs of the Croatian lawyer, Mr Andrej Babic (Mr Babic), whom, in accordance with the practitioner's advice to you, was retained to assist with the Matter;
3.in failing to obtain your authority for Mr Babic to do work for which he sought to charge €66,250;
4.on 17 June 2013, in speaking to Mr Babic about his fee of €66,250, and telling Mr Babic that you were prepared to pay him €50,000, contrary to your instructions to speak with you and discuss that proposal, before speaking to Mr Babic; and
5.in failing, between 3 August 2018 and 10 March 2021, to provide you with your complete file, contrary to Rule 28(2) of the Legal Professional Conduct Rules 2010 (WA),
be heard by the State Administrative Tribunal (Tribunal), and, accordingly, that matter be referred to the Tribunal.
Arising out of its consideration of your complaint the Committee is also investigating matters of its own initiative pursuant to section 421(1) of the LP Act. However, this now concludes your complaint.
I understand that the references to 'Matters 1 to 4' in the orders sought, which I have quoted at [8], are to paragraphs 1 to 4 of this letter.
Also annexed to the 23 April Affidavit is a copy of an order SAT made on 13 November 2023 recording a settlement of the complaint against Mr Dangubic by consent. This was on the basis of an agreed statement of the facts and contentions (also annexed). Mr Dangubic was publicly reprimanded, fined $14,000 and ordered to pay the LPCC's costs.
Finally, Mr Mateljan annexed to the 23 April Affidavit a copy of a decision of a disciplinary court in Croatia which he says relates to the conduct of the solicitor in Croatia engaged through Mr Dangubic.
Mr Mateljan the deposes that:
(a)the LPCC only ended up referring the fifth matter set out at [9] to SAT;
(b)despite requests, he has never been informed of the reason for this change in scope; and
(c)in particular, the failure by the LPCC to force Mr Dangubic to provide Mr Mateljan with his complete legal file is prejudicing his ability to defend related legal proceedings in Croatia.
He requests the Supreme Court to 'examine whether the LSCC conducted a full and proper investigation, in particular concerning file recovery'.[1] He adds:[2]
5.4.I respectfully ask the Court to consider whether these failures, when taken together, amount to a denial of procedural fairness so serious that they engage the same principles applied by courts in cases involving miscarriages of justice---where the fairness, transparency, and integrity of proceedings are fatally compromised.
[1] 23 April Affidavit, par 3A.3.
[2] 23 April Affidavit, par 5.4.
In the May Affidavit, Mr Mateljan goes into some more detail as to the nature of his concerns about the decisions made by and conduct of the LPCC. He starts to reformulate his concerns into the framework of judicial review.
The principles relating to an application pursuant to RSC O 67 r 5
In determining the Application, I was, and am, mindful that Mr Mateljan is a litigant in person. As a litigant in person, he is entitled to some leniency in relation to compliance with the court rules.[3] The court is required to approach the documents in which he articulates his case with some flexibility.[4] The court needs to be astute to ensure that, in a poorly expressed or unstructured document in which he sets out his case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[5] A 'frequent consequence of self‑representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'.[6]
[3] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (judgment of the court).
[4] Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P with whom Hope & Samuels JJA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[5] Sethi v Bhavsar [2020] WASCA 52 (Sethi) [27] (reasons of the court).
[6] Neil v Nott [1994] HCA 23 [5]; (1994) 68 ALJR 509, 510; (1994) 121 ALR 148, 150 (judgment of the court); Sethi [27].
I am also mindful that, ordinarily, a party is not to be denied the opportunity to place his case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes.[7] So the Court must exercise the power to summarily prevent a party from commencing proceedings with caution.[8] In short, the power 'should not be exercised lightly as it denies a potential plaintiff the opportunity to have the matter heard'.[9]
[7] Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57] (Gaudron, McHugh, Gummow and Hayne JJ).
[8] Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24] (French and Gummow JJ); Kounis v Westpac Banking Corporation [No 2] [2023] WASCA 185 [8] (reasons of the court); Re Rules of the Supreme Court 1971 (WA); Ex parte Kiefer [2025] WASC 45 [16] (Lundberg J) (Kiefer).
[9] Re Rules of the Supreme Court 1971 (WA); Ex parte Frigger [2024] WASC 7 [26] (Seaward J) (Frigger).
The purpose of the power in RSC O 67 r 5 is twofold:[10]
(a)to reinforce the inherent power of the Court to protect itself from the unwarranted usurpation of its time and resources; and
(b)to avoid the loss that would otherwise be suffered by those required to defend actions which lack any substance.
[10] Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303, 312 (Toohey J); Kiefer [17]; Frigger [26].
RSC O 67 r 5(1) does not state the criteria that are to be applied in determining whether to grant or refuse leave to file or issue a proposed application. However, it is accepted that the court should refuse leave to file or issue a proposed application only if satisfied that the proposed application would be an abuse of process or a frivolous or vexatious proceeding.[11] It is not necessary for the purposes of determining the Application to go into any detail as to the scope of this phrase.[12]
[11]Frigger [25]; Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213 [25] (Vaughan J) (Gates).
[12] As to which, see: Gates [25] - [26], [29] - [33] (references omitted); Kiefer [20]; In the Matter of Rules of the Supreme Court 1971 (WA); Ex parte Huggins [2024] WASC 301 [13] (Howard J).
Determination
The Proposed Notice is not in a form which makes any real attempt to comply with the requirements of the RSC. Specifically, RSC O 56 r 2(1) provides that an application for judicial review must be in Form 67A. For that reason alone no leave should be granted for Mr Mateljan to file the Proposed Notice. It would be an abuse of the processes of the court to allow an action to be commenced by such a manifestly deficient document.
I do observe that it is possible as a matter of law for an application to be brought in the Supreme Court seeking judicial review of a decision of, or of conduct of, the LPCC. The decision in Papamihail v Legal Profession Complaints Committee is an example, though the plaintiff there was a legal practitioner.[13] Although the Court of Appeal did not specifically consider the issue, in my view, the appropriate defendant for any judicial review application made by Mr Mateljan would be the Legal Practice Board. By Legal Profession Uniform Law Application Act 2022 (WA) (Application Act) s 30(3) proceedings may be taken by or against the Legal Practice Board in its corporate name. The LSCC is a committee of the Legal Practice Board, with no equivalent provision allowing proceedings to be taken by or against it.[14] Likewise the LPCC was a sub-committee of the Legal Practice Board,[15] which was the entity who could take proceedings and have proceedings taken against it.[16] The LPA has been repealed by Application Act s 260. However, the LPA continues to apply to Mr Mateljan's complaint by operation of Application Act s 261 and Interpretation Act 1984 (WA) s 37. The Legal Practice Board continued in existence, with its rights and liabilities under the LPA continuing as rights and liabilities of or in relation to the Legal Practice Board established under the Application Act.[17]
[13] Papamihail v Legal Profession Complaints Committee [2023] WASC 183.
[14] Application Act s 57(1), s 58.
[15] LPA s 555(2).
[16] LPA s 534(3).
[17] Application Act s 267. See generally: Re Rules of the Supreme Court 1971 (WA); Ex parte Khosa [2023] WASC 477 [44] - [45] (Whitby J).
The grounds on which decisions of, or conduct of, the Legal Practice Board may be the subject of judicial review are, however, limited. So if Mr Mateljan wishes to litigate the concerns set out in the Proposed Notice, he will need cast them in terms of judicial review, and then file an application complying with the requirements set out in RSC O 56, in particular Form 67A. In saying that, I express no view as to whether he will be able to do so, merely that he has the opportunity to do so.
I also observe that RSC O 56, dealing with judicial review, provides that if the application is made more than six months after the relevant decision is made or conduct occurs, the leave of the court is required.[18]
[18] RSC O 56 r 1 (definition of 'limitation period'), r 3(4).
For these reasons, I dismissed the Application with no orders as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OB
Associate to the Hon Justice Gething
13 MAY 2025
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