McFarlane v Legal Profession Conduct Commissioner
[2017] SASCFC 25
•7 April 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
MCFARLANE v LEGAL PROFESSION CONDUCT COMMISSIONER
[2017] SASCFC 25
Judgment of The Full Court
(The Honourable Justice Peek, The Honourable Justice Parker and The Honourable Justice Doyle)
7 April 2017
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA - PROCEEDINGS IN TRIBUNALS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - OTHER COURTS AND TRIBUNALS
The appellant appealed against the summary dismissal of a charge he laid on 27 May 2015 before the Legal Practitioners Disciplinary Tribunal against the respondent, the Legal Profession Conduct Commissioner. The charge alleged unprofessional conduct by him concerning a complaint that the appellant had previously made to the Commissioner in October 2014 about the conduct of two practitioners in 2010 District Court proceedings. This conduct had been investigated by the now-defunct Legal Practitioners Conduct Board in late 2013 and early 2014, and the appellant asserted to the Commissioner that this investigation was unsatisfactory. The Commissioner’s January 2015 determination to close the complaint without further investigation pursuant to s 77C of the Legal Practitioners Act 1981 (the Act), constitutes the asserted unprofessional conduct.
On 4 July 2014, on application by the Commissioner, a member of the tribunal dismissed the charge as being frivolous or vexatious pursuant to s 82(5) of the Act. The appellant appealed against this decision.
Held (per Peek, Parker and Doyle JJ) (dismissing the appeal):
(1) There is no evidence of any professional misconduct or unsatisfactory conduct by the Commissioner concerning his determination to close the appellant’s complaint pursuant to s 77C of the Act.
(2) The Legal Practitioners Disciplinary Tribunal correctly approached and determined the application for summary dismissal of the charge against the Commissioner pursuant to s 82(5) of the Act.
Legal Practitioners Act 1981 ss 76, 77B, 82; Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA), referred to.
Dey v Victorian Railways Commissioner (1948-1949) 78 CLR 62, discussed.
McFarlane v Reffold [2013] SASCFC 31, considered.
MCFARLANE v LEGAL PROFESSION CONDUCT COMMISSIONER
[2017] SASCFC 25Full Court: Peek, Parker and Doyle JJ
THE COURT. Mr McFarlane (the appellant) appeals against the decision of the Legal Practitioners Disciplinary Tribunal of 4 July 2016 whereby pursuant to s 82(5) of the Legal Practitioners Act 1981 it summarily dismissed a charge (‘the subject charge’) laid by the appellant against Mr Greg May, the Legal Profession Conduct Commissioner.
Background
The appellant was the unsuccessful plaintiff in South Australian District Court proceedings in June 2010 relating to a contract dated 7 December 2007 between himself and one Mr Reffold for the sale and purchase of real estate (‘the District Court proceedings’).
The appellant had initially sought to delay settlement on the basis of a breach of a warranty that no improvements had been carried out on the land without the necessary approvals, but later sought specific performance of the contract. In the District Court proceedings, Mr Reffold was represented by legal practitioners MM and ME. The appellant was also legally represented. On 24 August 2011, judgment was delivered by the District Court Judge in favour of Mr Reffold. The appellant’s subsequent appeal to the Full Court of the Supreme Court was dismissed on 24 April 2013.[1]
[1] McFarlane v Reffold [2013] SASCFC 31.
The complaint and charging process under the Legal Practitioners Act 1981
Prior to the Legal Practitioners (Miscellaneous) Amendment Act 2013 which came into effect on 1 July 2014 (‘the amendment’), the Legal Practitioners Conduct Board (‘LPCB’ or ‘the Board’) was by virtue of s 76 of the Legal Practitioners Act 1981 (the Act) responsible for investigations of unprofessional or unsatisfactory conduct by practitioners.
However, by virtue of the amendment, the Board was replaced by the Legal Profession Conduct Commissioner (‘LPCC’ or ‘the Commissioner’).
Under s 77B of the Act, the Commissioner must, as the Board was previously required to do under the previous provisions, investigate the conduct of the legal practitioner if a complaint has been received. Prior to the amendment, the Board could discontinue such an investigation if it was apparent to it that the complaint was “frivolous or vexatious”, or if the subject matter had been resolved prior to the completion of the investigation.[2] However, the amendment bestowed upon the Commissioner a much broader statutory discretion to “close the complaint”.[3]
[2] Section 76(2) of the Act.
[3] Section 77C of the Act.
Under both the old and new provisions, a “person claiming to be aggrieved” could, and can, lay a charge before the Legal Practitioners Disciplinary Tribunal (‘LPDT’). This is in addition to the powers of the Board (under the old provisions) and of the Commissioner (under the new provisions) to lay a charge before the Tribunal. It appears that, under the new provisions, the Commissioner’s decision to close the complaint under s 77C of the Act does not prevent an aggrieved person laying a charge before the Tribunal.
Chronology of the appellant’s complaints arising out of the District Court trial
The following is a brief non-exhaustive chronology concerning the appellant’s complaints and charges arising out of the District Court trial:
Date Event Reference Title
29 November 2013 Appellant lodges original complaint to the LPCB against MM and ME concerning their conduct in the District Court trial The original November 2013 complaint 25 June 2014 The LPCB resolves in relation to the original complaint that there was no unprofessional or unsatisfactory conduct by either practitioner LPCB Resolution of 25 June 2014 1 July 2014 The Act is amended so as to replace the LPCB with the Commissioner 31 October 2014 Appellant lodges a complaint to the Commissioner concerning the LPCB resolution of 25 June 2014 The October 2014 complaint 15 January 2015 The Commissioner determines to close the October 2014 complaint and publishes his determination The Commissioner’s Determination 11 March 2015 Appellant lodges an appeal against the Commissioner’s determination Appeal against the Commissioner’s Determination 27 May 2015 Appellant lays before the LPDT the subject charge concerning the Commissioner’s conduct in connexion with his determination The subject charge 27 May 2015 Appellant lays before the LPDT a charge against MM concerning his conduct in the District Court trial The 27 May 2015 charge against MM 27 May 2015 Appellant lays before the LPDT a charge against ME concerning his conduct in the District Court trial The 27 May 2015 charge against ME 16 June 2015 The Commissioner files an application for summary dismissal of the subject charge 6 July 2015 Appellant files further written particulars of the 27 May 2015 charge against MM Further particulars of the 27 May 2015 charge against MM 6 August 2015 Appellant’s purported appeal against the Commissioner’s Determination is dismissed by the Deputy President of the LPDT, Ms Maharaj QC 10 August 2015 Appellant files further written particulars as to paragraphs 4(c) and 4(d) of the subject charge Appellant’s further written particulars as to paragraphs 4(c) and 4(d) of the subject charge 16 September 2015 The LPDT hears the application for summary dismissal of the subject charge and reserves judgment 4 July 2016 The LPDT pursuant to s 82(5) of the Act summarily dismisses the subject charge Summary dismissal of the subject charge 14 September 2016 The appellant files a notice of appeal against the summary dismissal of the subject charge The present Full Court appeal 7 October 2016 A single Judge orders that the present appeal be heard by the Full Court 14 March 2017 The Full Court hears the present appeal and reserves judgment The original November 2013 complaint to the Legal Practitioners Conduct Board LPCB against the conduct of MM and ME
In November 2013, the appellant made his original complaint to the LPCB against MM and ME in relation to conduct concerning the District Court trial. The LPCB conducted an investigation and on 25 June 2014 found that there had been no unsatisfactory or unprofessional conduct on the part of either practitioner and dismissed the complaint. The appellant was specifically advised of this outcome and of his right to make a submission to the lay observer if he was dissatisfied with the LPCB’s decision. He did not make any submission to the lay observer.[4]
The October 2014 complaint to the Commissioner concerning the previous LPCB investigation of the original November 2013 complaint against MM
[4] The position of lay observer no longer exists due to the Legal Practitioner’s (Miscellaneous) Amendment Act 2013.
On 30 October 2014, the appellant spoke to the Commissioner and requested a meeting with him; the Commissioner responded that the appellant should lodge any complaint in writing. On 31 October 2014, the Commissioner received a new complaint from the appellant (‘the October 2014 complaint to the Commissioner’). It concerned the conduct of MM in connexion with the District Court trial and requested that the Commissioner further investigate the previous complaint which had been dismissed by the LPCB. It alleged that the LPCB had failed to investigate fully his previous complaint and that the report produced by the Board in June 2014 was unreliable. The appellant also asserted that there was fresh evidence to be considered.
The Commissioner arranged for a review of the investigation of the original complaint. He ensured that the review was conducted by staff members other than those who had been involved in the previous LPCB investigation. Additionally, the review addressed the question of whether there was any new evidence of sufficient probative value to warrant a further investigation.
On 15 January 2015, the Commissioner issued a Determination under s 77C of the Act (‘the Determination’). He found that the subject matter of the complaint had already been fully investigated by the LPCB; that it was in the public interest to close the complaint; that he could not find any error in the previous investigation or in the LPCB decision-making; and that there were no new concerns raised. Accordingly, he determined to “close the complaint without further investigation”, adopting the statutory words.
On 11 March 2015, the appellant lodged an appeal against the Commissioner’s Determination. Later, on 6 August 2015, this appeal was dismissed by the Deputy President of the LPDT, Ms Maharaj QC, who found that there was no statutory right of appeal available to Mr McFarlane in relation to the LPCB’s Determination and that the Tribunal had no jurisdiction to hear the purported appeal.
The 27 May 2015 charge laid before the LPDT as to the conduct of the Commissioner – the subject charge
On 27 May 2015, the appellant laid before the LPDT the present charge against the Commissioner (‘the subject charge’), the particulars of which are:
1. On the 31st October 2014, Greg May received my complaint to further investigate allegations of the LPCB’s failure to proper investigate [MM]’s answer to allegations.
2. On the 15th January 2015, under section 77C of the Act Greg May (LPCC) made a decision to close the complaint.
3. It is alleged that [MM];
a. a. At trial on 15 June 2010, mislead the court, concealed documents, used surprise before the court and aided a witness.
b. b. On the 7th April 2014, mislead the LPCB’s investigation.
4. It is alleged that Greg May’s;
a. Reasons for his decision to close the complaint are incompetent and unfounded.
b. And the LPCB’s decisions have caused the complainant detriment before the courts that rely on these determinations to make just decisions.
c. Decision is an obstruction of justice, aids a legal practitioner to obstruct justice and undermines the public confidence in the judicial system.
d. Integrity is in question.
The 27 May 2015 charges laid before the LPDT as to the conduct of MM and ME
On 27 May 2015, the appellant also laid before the LPDT charges against MM and ME, again relating to the District Court trial.
During the hearing of the present appeal, the Court was informed by counsel for the Commissioner that the 27 May 2015 further charge laid against MM has proceeded to a completed hearing before the LPDT and that judgment is presently reserved.
The summary dismissal of the subject charge
On 16 June 2015, an application for summary dismissal by the LPDT of the subject charge against the Commissioner was filed on his behalf, together with his affidavit sworn on 16 June 2015 which detailed the history of the matter and his reasons for seeking a summary dismissal of the subject charge against him.
On 10 August 2015, in response to the above application, the appellant filed a document purporting to provide further written particulars concerning paragraphs 4(c) and 4(d) of the present complaint (the appellant’s further written particulars concerning paragraphs 4(c) and 4(d) of the subject charge). The substantive part of that document appears thus:
Charge paragraph 4c and 4d
4. IT IS ALEGED THAT GREG MAY’S;
c. DECISION IS AN OBSTRUCTION OF JUSTICE, AIDS A LEGAL PRACTITIONER TO OBSTRUCT JUSTICE AND UNDERMINES THE PUBLIC CONFIDENCE IN THE JUDICIAL SYSTEM.
d. INTEGRITY IS IN QUESTION.
Particulars to an obstruction of justice.
1. Mr G May abused his advantage (advantage his deligated powers under section 77c of the act.)
2. G May abused his advantage by interfering with the law administration and procedures by falsifying his grounds for his decision to close the complaint under section 77c(1)(c) of the act.
3. Mr G May’s determination 15 June 2015
b. DECISION TO CLOSE THE COMPLAINT
Part 11. I am satisfied that, in accordance with section 77C, the Complaint should be closed without further consideration of its merits, for the following reasons:
a. Section 77C(1)(c) – on the ground that the subject matter of the complaint has already been investigated by the Board;
b. Section 77C(1)(g) – on the ground that I am satisfied that it is othewise in the public interest to close the complaint.
4. FALSIFICATING GROUNDS a. Section 77C(1)(c) – on the ground that the subject matter of the complaint has already been investigated by the Board
4a The subject matter of my complaint to G May received on 31 Oct 2014, was the LPCB failed to investigate the filing of a subpeona. The section “conduct at trial” in the LPCB’s report clearly exposes a failure to investigate.
The LPCB’s report section “Conduct at trial” 25 June 2014
“Conduct at trial It is alleged that [MM] misled the court by saying that the conveyancer’s file had been discovered. The Board has no evidence that there has been any deception. Without a search of the court file we cannot know whether the file was discovered in the strictly legal sense, namely whether it was included in the List of Documents prior to trial. It is also possible, given that the file was produced in answer to a subpoena, that this is what [MM] meant.”
Further I provided G May with the record of outcome that failed to record answering the subpeona. (new evidence) ruling out further speculation.
4b. G May refused to ask [MM] the questions required for a fair and just determination of alegations in part 7h of his determination on 15 Jan 2015 (failure to follow and apply procedural fairness resulting in a reasonable suspicion of Bias in his decision making)
“Part 7.H. in relation to his allegation of misleading the Court and contempt the Complainant expressed his view that certain questions in relation to the subpoena needed to be answered by the Practitioner, namely “who, how, when and why the subpoena was answered”; on 25 June 2014 the Board considered the Report Following Investigation and resolved that there was no unprofessional or unsatisfactory conduct on the part of the Practitioner”
A public authority has a duty to act judicially whenever it makes decisions that affect people’s rights or interest in any judicial-type procedure in arriving at decisions.
5. In the Public Interest. Section 77C(1)(g) – on the ground that I am satisfied that it is othewise in the public interest to close the complaint.
5a. The fundimental duty of the LPCC and the tribunal is to uphold the public confidence in the integrity of legal practitioners.
5b. It is in the public interest the LPCC must follow and apply proceedural fairness when investigateing seriouse allegations relating to misleading the court and LPCB’s investigations.
SUMMARY
6. The act applies to G May as a legal practitioner and prosecutor.
6a. G May is not above the law by appointment as LPCC.
6b. As LPCC G May’s integrity requires him to admit fault.
6c. Equity requires a remidy to right a wrong.
6d. The Act requires the tribunal to investigate this charge.
These so-called particulars were also reproduced in the appellant’s written submissions of 9 September 2015 and were specifically addressed during the hearing before, and in the judgment of, the LPDT (referred to below). They were also referred to, and partly reproduced, in the appellant’s grounds of appeal to this Court (referred to below).
On 16 September 2015, the application for summary dismissal of the subject charge was heard and judgment was reserved. At the conclusion of the hearing, the appellant was invited to forward any further written submissions within 14 days. On 30 September 2015, the appellant filed his final written submissions.
On 4 July 2016, the LPDT pursuant to s 82(5) of the Act summarily dismissed the subject charge. In short, the Tribunal Member:
-struck out particulars 1 and 2 essentially because they were statements of fact making no allegation against the Commissioner.
-struck out particular 3 essentially because it made an allegation against a third party and had no relevance to the Commissioner.
-struck out particulars 4(b) and 4(c) essentially because they could not form the basis of any investigation concerning the Commissioner and were so untenable that they could not possibly succeed.
-struck out particulars 4(a) and 4(d) essentially because they provided no apparent factual basis for a charge of unprofessional or unsatisfactory conduct as distinct from being the complainant’s subjective opinion concerning the Commissioner’s Determination.
The present appeal to this Court
On 14 September 2016, the appellant filed a notice of appeal against the above disposition. On 7 October 2016, a single Judge ordered that the appeal be heard by the Full Court.
The grounds of appeal
In the notice of appeal, the entry under the heading “Grounds of appeal” commences with the following passage from the judgment of Dixon J (as he then was) in Dey v Victorian Railways Commissioner:[5]
A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.
(Emboldened in original)
[5] (1948-1949) 78 CLR 62, 91.
Immediately following the above extract appear seven numbered grounds (or purported grounds) of appeal (‘the grounds of appeal’). However, these are somewhat confusingly interspersed with insertions of passages from other documents which themselves have numbered paragraphs. Doing the best we can, the seven grounds of appeal appear to be as follows:
(1) The tribunal failed to observe or identify the appearance of a real question of fact to be determined that appears in the document filed on the 10 August 2016 “Particulars to charge 4c and 4d required in answer to Gergory M. May’s submission for summary dismissal” in any part of its decision of summary dismissal dated 4th July 2016
(2) The real question of fact to be determined is found Pursuant to charge 4.c. an alleged Obstruction of Justice the Document “Particulars to charge 4c and 4d required in answer to Gergory M. May’s submission for summary dismissal.” in this document under the heading “Particulars to an obstruction of justice” clearly sets out Mr May has abused his advantage by used of false grounds in his determination 15 June 2015 part 11.a. under Decision to close the complaint pursuant to Sec 77(1)(c). on the ground that the subject matter of the complaint has already been investigated by the board;
(3) In the Document “Particulars to charge 4c and 4d required in answer to Gergory M. May’s submission for summary dismissal.” part 4.a. identifies where the LPCBoard in its report dated 25th June 2014 under “Conduct at trial” admits its failure to investigate to know what [MM] “meant”. Weather he was untruthful by informing the court the file (Schreibers File) had been discovered. If found to be untruthful he has mislead the court and the LPCB’s investigator, this finding then forming a foundation for prior and subsequent allegations of contempt and conspiracy.
[A passage here reproduces portion of the document filed on 10 August 2015.[6]]
(4) At a hearing Ms Pyke Chair of the LPDT, directed the complainant to file a form 1 named “Particulars to charge.” to rectify a misunderstanding the complainant had that the required particulars of a charge and supporting evidence was the next procedure.
(5) The Document filed on the 30th September 2015 the “Submission answer to Gregory M. May’s Submission for summary dismissal” Part 4. outlines a warning to the tribunal of an allegation that Greg may is manipulating the tribunal to protect himself and details allegations of the registrar’s attempt to conceal document “Particulars to charge 4c and 4d required in answer to Gergory M. May’s submission for summary dismissal.
[A passage here reproduces portion of the document filed on 10 August 2015.[7]]
SUMMARY
(6) The tribunal is not competent in its decision to dismiss the action as frivolous and vexatious and an abuse of process. By its failure to act with caution when failing to observe the appearance that there is a real question to be determined of fact that the rights of the parties depend upon it. Further compounding the tribunals incompetence is the plaintiff persisted to reiterate in his submissions at the hearing the real question of fact to be determined. Finally drawing to the attention of the Tribunal document “Particulars to charge 4c and 4d required in answer to Gergory M. May’s submission for summary dismissal.” in the Transcript 16.9.15 – McFarlane v May.pdf page 71 line 6 to page 72 line 21.
In the Public interest
(7) 7000 members of the Public signed a partition in an outcry for the Government to deal with the McGee Saga, Allegations of systemic corruption, the royal commission exposed Mcgee and his brother conspired against the police investigation in the hit and run. The current LPAct was implemented that gave the tribunal the power to deal with the allegations of this nature. It is in the public interest that serious allegations of this nature are investigated.
[6] The passage is as follows (sic):
“Particulars to charge 4c and 4d required in answer to Gergory M. May’s submission for summary dismissal.” part 4. As follows;
“4. FALSIFICATING GROUNDS a. Section 77C(1)(c) – on the ground that the subject matter of the complaint has already been investigated by the Board
4a. The subject matter of my complaint to G May received on 31 Oct 2014, was the LPCB failed to investigate the filing of a subpeona. That section “conduct at trial” in the LPCB’s report clearly exposes a failure to investigate.
The LPCB’s report section “Conduct at trial” 25 June 2014
“Conduct at trial It is alleged that [MM] misled the court by saying that the conveyancer’s file had been discovered. The Board has no evidence that there has been any deception. Without a search of the court file we cannot know whether the file was discovered in the strictly legal sense, namely whether it was included in the List of Documents prior to trial. It is also possible, given that the file was produced in answer to a subpoena, that this is what [MM] meant.”
[7] The passage is as follows (sic):
Part 4. of the “Submission answer to Gregory M. May’s Submission for summary dismissal” a warning to the tribunal as follows;
“4. THE LPCC AND LPDT MOTIVE TO CREATE CASE OF PRECIDENT.
a. I am a witness to Greg May manipulating the Tribunal to assist in protecting himself by precedent when unprotected by law.
b. Transcript from 16 September 2015 Page 69 line 28 Ms L Hastwell states “You don’t actually deal with the issue of falsification in your charge of such.
c. page 71 line 2 Member Hastwell finally receives the document in question from the registrar and pretends to have this document. This document the particulars to charge destroyed Greg Mays application to summary dismiss his application. Without this document I had no argument.
d. It was in Greg Mays interest that this document was concealed and not provided to the tribunal, the duty of the registrar to provide this document.
e. There is a word document labeled About Appeals provided to me by the LPDT that states “there is no right of appeal at common law or in equity, the tribunal does not have any jurisdiction to hear such an appeal – see Mcfarlane and Keung.
This is a false misleading statement, My submission to Ms Maharaj at the hearing referred to above relied on the laws of equity, that the Commissioner had abused his advantage. Ms Maharaj Abused her advantage and failed to address equity in her judgment to dismiss the appeal on the tribunal having no jurisdiction.
The word document unknown author provided by the LPDT is attached.
Consideration
As is obvious, the above grounds of appeal really constitute submissions or assertions rather than proper grounds of appeal. On analysis, there is essentially one argument which may be shortly summarised as follows. First, that the emboldened final sentence in the passage extracted from the judgment of Dixon J in Dey v Victorian Railways Commissioner[8] reproduced at the beginning of the grounds of appeal governs the application of any summary dismissal power. Second, that the mere assertion by a complainant of the existence of a question of fact precludes an exercise of a summary dismissal power. Third, that a sufficient “real question of fact to be determined” appeared in the appellant’s document, “The appellant’s further written particulars concerning paragraphs 4(c) and 4(d) of the subject charge document” and the inclusion of that assertion precluded the exercise by the LPDT of its summary dismissal power.
[8] (1948-1949) 78 CLR 62, 91.
As to grounds of appeal 4 and 7, it is clear that ground 4 does no more than explain the genesis of the document “Particulars to Charge 4c and 4d document” and is a mere assertion of fact rather than a ground of appeal; similarly, ground 7 is a mere assertion rather than a ground of appeal.
The correct approach to summary dismissal
As to grounds of appeal 1, 2, 3, 5, and 6, it appears that the appellant has assumed that the passage he has reproduced from the judgment of Dixon J in Dey governed both the decision of the Commissioner to “close the complaint” against MM and the decision of Tribunal to summarily dismiss the charge against the Commissioner.
However, the case of Dey was essentially decided by reference to the inherent jurisdiction of a court of record to stop abuse of its process. Thus, it is to be noted that the passage extracted by the appellant was immediately preceded by the following passage:[9] “The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled.”
[9] Ibid, 91.
By contrast, the power “to close a complaint” exercised by the Commissioner is a specific statutory power addressed to the particular topic of complaints against members of the legal profession. It is clear that the purview of s 77C of the Act, and the factors that may be taken into account in coming to a decision to “close a complaint”, are much wider than the inherent jurisdiction under consideration by the court in Dey. Thus s 77C provides:
77C—Closure of whole or part of complaint
(1) At any stage after receipt of a complaint, the Commissioner may close the complaint without further consideration of its merits for any of the following reasons to the extent they are applicable:
(a)the complaint is vexatious, misconceived, frivolous or lacking in substance;
(b)the complainant has not responded, or has responded inadequately, to a request for further information or has unreasonably failed to cooperate in the investigation or conciliation of the complaint;
(c)the subject‑matter of the complaint has been or is already being investigated, whether by the Commissioner or another authority;
(d)the subject‑matter of the complaint would be better investigated or dealt with by police or another investigatory or law enforcement body;
(e)the subject‑matter of the complaint is the subject of civil proceedings, except so far as it is a disciplinary matter;
(f)the complaint is not one that the Commissioner has power to deal with;
(g)the Commissioner is satisfied that it is otherwise in the public interest to close the complaint.
(2) A complaint may be closed under this section without an investigation or without completing an investigation.
(3) The Commissioner is not required to give a complainant, a legal practitioner, a former legal practitioner, a law practice or the Legal Services Commission an opportunity to be heard or make a submission to the Commissioner before determining whether or not to close a complaint under this section.
(4) The power to close a complaint under this section extends to closure of part of a complaint.
That the proper construction of this statutory power is much less restricted than the inherent jurisdiction is further reinforced by s 77C(2) (which provides that a complaint may be closed under this section without an investigation being instituted or completed) and s 77C(3) (which provides that certain persons including the complainant have no right to be heard before the power is exercised).
With respect, it seems to us that the Tribunal Member was prescient in her following observations:
66. The complainant’s oral submissions centred around his own fixed belief in the veracity of his complaint against MM and his lack of comprehension as to the Commissioner’s powers under section 77C. He could not understand that Parliament could legitimately give the Commissioner the power to close a complaint for any of the grounds set out under 77C of the Act. … (Emphasis added)
Or, in other words, the appellant has wrongly assumed that the dismissal by the Commissioner was untoward and has reasoned from that premise to the erroneous conclusion that something ‘sinister’ has occurred which required a charge to be laid against the Commissioner. That subject charge was in turn summarily dismissed, and hence the present appeal.
We turn to consider in a little more detail the Commissioner’s Determination of 15 January 2015.
The Commissioner’s Determination of 15 January 2015
In the first five (singe spaced) pages of the Commissioner’s Determination dated 15 January 2015, the Commissioner considered in detail the relevant background material including: the course of the original real estate transaction; the course of the original District Court trial; the original complaint against MM and ME and the investigation and report of the LPCB in relation to that complaint. He then addressed the complaint before him thus:
8.The current Complaint to my office seeks that I further investigate the previous complaint.
9.I have carefully considered the issues raised in the Complaint, and in particular the following aspects of it:
(a) the Complainant’s assertion that the Board’s report was unreliable because the Board failed to fully investigate, leaving an issue of alleged contempt and misleading the Court unresolved;
(b) the Complainant’s contention that the Board’s previous investigation disclosed evidence that the Practitioner had acted as S’s agent in answering the subpoena;
(c) the Complainant’s contention that certain questions should have been asked in the Board’s investigation in relation to the subpoena which were not asked;
(d) the Complainant’s criticism that the Board’s Report Following Investigation was unreliable in the following way: “In their report page 6 under Conduct at Trial the LPCB found ‘Without a search of the Court file we cannot know weather [sic] the file was discovered in the strictly legal sense, namely whether it was included in the List of Documents prior to trial.”; and the Complainant’s contention that it was necessary for further questions to be asked to clarify whether the file was discovered in the strictly legal sense (namely when, where and who answered the Schrieber subpoena) or that evidence needed to be provided that the file was not discovered, as the Complainant claimed;
(e) the Complaint’s assertion that there was fresh evidence, being a ‘record of documents filed prior to trial’, which he subsequently provided to my office on 8 December 2014 (which document is an extract of the Court Record of Outcome relating to the subject District Court litigation); and the Complainant’s suggestion that the Record of Outcome does not record that in the days prior to trial the file of Schrieber Pty Ltd was ‘filed’ ‘in compliance with the subpoena’ where ‘it would be recorded’, which is why he considers the Practitioner needs to specify when the subpoena was complied with.
10.The circumstances of the Complaint are such that it is appropriate to close the complaint without considering its merits any further.
DECISION TO CLOSE THE COMPLAINT
11.I am satisfied that, in accordance with section 77C, the Complaint should be closed without further consideration of its merits, for the following reasons:
(a) Section 77C(1)(c) – on the ground that the subject matter of the complaint has already been investigated by the Board;
(b) Section 77C(1)(g) – on the ground that I am satisfied that it is otherwise in the public interest to close the complaint.
REASONS FOR THE DECISION TO CLOSE THE COMPLAINT
12.The Complainant does not raise any new concerns in relation to the Practitioner which he has not already raised in his previous complaint. The Complainant has not provided any fresh or probative evidence such as to warrant a further investigation of his Complaint about the Practitioner.
13.The subject matter of the Complaint has previously been investigated by the Board. I have not identified any error in relation to the earlier investigation or decision making process. I make the following comments in that respect:
(a) during the Board’s previous investigation the Complainant contended that certain questions should be asked about the subpoena, namely those he repeats in his current Complaint;
(b) I do not accept that the fact that those questions were not previously asked by the Board’s investigating solicitor indicates that there was a flaw in the earlier investigation or provides reason to further investigate the previous complaint;
(c) in terms of the process, the Complainant was given adequate opportunity to provide information to the Board and to respond to the Practitioner’s response;
(d) on the face of it, the decision was an appropriate one for the Board to reach on the basis of the information before it.
14.I make the following observations about relevant matters that were apparent from the Board’s previous investigation:
(a) the subject subpoena was not issued against the Practitioner, it was issued against Schrieber Pty Ltd;
(b) it was not for the Practitioner to comply with the subpoena;
(c) the Practitioner did not represent Schrieber Pty Ltd, who was the company that was to comply with the subpoena;
(d) the relevant file, namely the conveyancer’s filed, was produced at trial, and the Practitioner had not seen it prior to its production.
It can be seen from the above passage that the Commissioner was well aware of all of the material referred to by the appellant (references to which have been repeated before this Court). The Commissioner clearly construed such material differently to, and/or placed different weight on it than, the appellant. We consider that he was entitled to do so.
We also agree with the further paragraphs of the Commissioner’s reasons:
15.In relation to the Complainant’s concerns about the subpoena, I note the view that is expressed in the Report Following Investigation that “it seems that the complainant may not understand some of the language used in court, it is clear that M was “producing” a document to the witness, not that he produced it to the court as a person would answering a subpoena.” I share that view.
16.A situation where a complainant may disagree with a previous decision of the Board or with the manner in which the Board’s investigation was conducted is not, without more, a ground for me to re-investigate a previous complaint.
17.My office has limited resources and, in discharging my statutory obligations, I have a duty to allocate those resources sensibly and appropriately. Utilising my office’s resources to further consider the Complaint cannot be justified in the circumstances outline above.
Having considered all of the material in the casebooks now before this Court, and the written and oral submissions made by the appellant, we can detect no error of approach or substance in the Commissioner’s course of reasoning, or the conclusion to which he came.
The decision of the LPDT dated 4 July 2016
We now turn to consider the decision of the Tribunal Member to dismiss summarily the charge against the Commissioner.
The decision of the LPDT dated 4 July 2016 consists of over 16 pages (single spaced) of closely reasoned analysis. The Tribunal Member correctly marshalled the facts and, as had the Commissioner, she also considered in detail the relevant background material including: the course of the original real estate transaction; the course of the original District Court trial; the original complaint against MM and ME and the investigation and report of the LPCB in relation to that complaint. She analysed the relevant legislative provisions and applicable legal principles and deals at length with the correct approach to a dismissal application of the present kind. She appropriately warned herself that the Tribunal “has an obligation to sparingly exercise such a power and in all instances it must be cautious in its approach”.[10]
[10] At [21].
After a close analysis of both the Commissioner’s submissions and the appellant’s response to those submissions, the Tribunal Member concluded as follows:
52.Having ascertained that the complainant appeared to accept the Commissioner’s submissions at least insofar as the first 3 paragraphs of the complaint were concerned, the Tribunal sought the complainant’s responding submissions with respect to paragraph 4 of the charge. Suffice to say it became increasingly difficult to comprehend the complainant’s train of thought and argument.
53.The complainant referred the Tribunal to the written submission he filed on 9 September 2015 in response to the Commissioner’s submission for summary dismissal.
54.In that document he set out his “particulars” with respect to paragraphs 4c and 4d of the charge. Without reciting in detail the particulars he referred to, the document relied on by the complainant as providing particulars asserts that the Commissioner
“abused his advantage” by exercising the power contained within section 77C of the act and that he “abused his advantage by interfering with the law and administration procedures by falsifying his ground for decision to close the complaint under section 77C(1)(c) of the Act.”
55.The Tribunal asked the complainant to elaborate on this statement. It was extremely difficult to follow the complainant’s reasoning but, to summarise, the Tribunal understands the basis of his complaint against the Commissioner is as follows:
· The Commissioner stated in his determination that the complainant’s complaint had already been investigated by the Board being his predecessor Board. The complainant considers that to be the “falsification” by the Commissioner as in the complainant’s personal view the complaint was not investigated by the previous Board in the way that he would have like it to be investigated and questions were not asked of the practitioners by the Board that in the complainant’s view should have been asked.
· That there was delay within the office of the Commissioner in the complaint being dealt with in that it was lodged on 30 October of 2014 and the final determination was not made until January of the following year.
· The Commissioner did not ask MM further questions that the complainant thinks should have been asked of MM.
· That he was prejudiced or aggrieved because in separate costs enforcement proceedings in the District Court arising out of the original litigation, the District Court awaited the outcome of the Commissioner’s determination before proceeding with a garnishee or charging order against the complainant’s estate that arose from a costs order made against the complainant in the original proceedings.
· That he does not like the procedure set out in section 77C and considers it gives some unfair advantage to the Commissioner and that the procedure does not provide procedural fairness.
· That the Commissioner declined to meet with the complainant personally when the complainant telephoned the Commission and requested to see him personally.
· The Commissioner was personally acquainted with members of the legal profession with the inference being that had in some way affected his judgment.
56.The other complaints ventilated by the complainant either verbally at the hearing or in the various documents that he filed contained broad generalised statements including accusations of negligence and lack of procedural fairness based on the Commissioner using his section 77C powers.
Conclusion and application of the law
57.The Tribunal accepts the Commissioner’s submission that the first three paragraphs of the charge should be struck out on the basis put forward by the Commissioner. The first two particulars are statements of fact and make no allegation of unsatisfactory or unprofessional conduct against the Commissioner.
58.The third particular relates to a third party and is an allegation of impropriety against a person who is not the subject of this charge. It has no relevance to the Commissioner and it is the subject of separate proceedings before this Tribunal.
59.The complainant also appeared to accept that argument when it was discussed with him in the course of the hearing. The tribunal is satisfied that there is nothing contained in the first three charges that could possibly provide any basis for a charge of unsatisfactory or unprofessional conduct against the Commissioner and the Tribunal will strike those paragraphs of the charge out on the basis that they show no good cause of action and are so obviously untenable that they cannot succeed. There are no factual matters contained in those paragraphs of the charge that could ground any investigation into the Commissioner’s conduct.
60.With respect to paragraph 4(b) and (c) the Tribunal accepts the submission of the Commissioner. The particulars in those paragraphs could not form the basis of any ongoing investigation against the Commissioner, and the Tribunal will strike those paragraphs from the charge on the basis that they show no good cause of action and are so obviously untenable that they cannot succeed.
61.The Tribunal is left to consider only paragraphs 4(a) and (d) of the charge and must determine whether they should be struck out on the basis of being frivolous or vexatious as set out in the relevant section.
62.Paragraph 4(a) asserts that the reasons for decision are “incompetent and unfounded.”
63.The Tribunal gave the complainant every opportunity to provide some factual basis to support this particular of the charge and to persuade the Tribunal that such an assertion could in any event may justify an investigation into a charge of unprofessional conduct. Paragraph 4(a) on its face appears to be a subjective opinion about the Commissioner’s Determination rather than any assertion of unprofessional or unsatisfactory conduct.
64.Nevertheless, being mindful of the Tribunal’s obligation to proceed with the utmost caution when considering an application under section 82(5) of the Act and the need to consider any facts and inferences that could perhaps at their highest be taken from those facts, the Tribunal asked the complainant to explain what he meant by that particular of the charge.
65.The complainant’s responses were vague, convoluted and rambling and did not point the Tribunal to any material in support of this particular that if investigated could give rise to a charge of unprofessional conduct, assuming of course that the Tribunal even has the power to deal with such a complaint against the Commissioner.
66.The complainant’s oral submissions centred around his own fixed belief in the veracity of his complaint against MM and his lack of comprehension as to the Commissioner’s powers under section 77C. He could not understand that Parliament could legitimately give the Commissioner the power to close a complaint for any of the grounds set out under 77C of the Act. He could not otherwise point to any other fact or circumstance in support of this part of this charge other than his belief that a record of documents filed prior to the District Court Proceedings and provided by him to the Commissioner’s office had greater significance than had been attributed to it by the Commissioner.
67.The Tribunal has already referred to the Commissioner’s determination which is clear and well-reasoned and sets out why he exercised his power under the provisions of section 77C to close the complaint. The Determination specifically refers to the record of outcome that the complainant puts such weight on. It was considered in the context of the Commissioner’s determination.
68.The Tribunal is satisfied that there is no apparent factual basis sufficient to support the charge set out in paragraph 4(a) of the charge.
69. Paragraph 4(d) states “integrity is in question”.
70.The complainant covered the same ground when asked to explain the factual basis of this allegation. The Commissioner had closed the charge under the section 77C provisions. The complainant believed that the Commissioner had an obligation to more vigorously pursue the new complaint against MM. He also complained of a delay in dealing with his complaint.
71.The Tribunal notes that the “delay” complained of was a period of 2.5 months from receipt of complaint to the determination. Even if this was considered an unreasonable delay, an internal delay in the Commissioner’s office is not a matter that could possibly ground a complaint of unprofessional conduct against the Commissioner.
72.The Tribunal is satisfied that this particular of the complaint should also be struck out as being manifestly groundless and showing no good cause of action and as being so obviously untenable that it cannot succeed.
73.In summary the Tribunal tried to ascertain whether the complainant could put forward any coherent basis or underlying facts that if taken at their highest may justify an investigation, assuming of course that the Tribunal would then have to determine whether it has jurisdiction over the Commissioner in any event. The Tribunal was mindful that the complainant was at a disadvantage in presenting his submission in that he is not legally trained and he claims to suffer from a disability of social phobia. The Tribunal was mindful of the obligation to proceed with caution and to ensure that he had a fair hearing.
74.Nevertheless after careful consideration of all submissions and relevant material, the Tribunal is satisfied that the charges against the Commissioner are frivolous and within the meaning of that term namely
“paltry, not warranting serious attention, manifestly futile” --- “groundless or as disclosing no cause of action”.
75.The second submission of the Commissioner relating to the multiple proceedings being pursued by the complainant were put to him. He denied any link between this charge and his grievance against MM and he claimed to have a genuine belief that the Commissioner had acted in an unprofessional manner for the reasons already outlined.
76.The Tribunal does not accept that submission. It is apparent to the Tribunal based on all the material available, that the complainant holds a deep grievance against MM and others involved in the District Court proceedings. Not satisfied with the LPCB’s decision and then the decision of the Commissioner, he had pursued independent proceedings in this Tribunal against MM. He has also appealed the determination but was unable to proceed based on jurisdictional issues. His oral and written submission to this Tribunal centred largely around his grievance with MM and the complainant’s inability to accept the way in which his grievance had been dealt with by first the LPCB and then the Commissioner and his determination to reopen the investigation.
77.The current charge against the Commissioner is in the Tribunal’s view nothing more than another thinly disguised attempt to force a reconsideration by this Tribunal in a back handed way of his grievance against MM.
78.The Tribunal is satisfied that he is bringing multiple proceedings to achieve the same outcome. I find that this is a second basis for making an order for summary dismissal of the charge.
79.The Tribunal accepts the Commissioner’s submission that there is sound authority that the Tribunal should regulate its own processes and not tolerate multiple proceedings on the same issue.
80.The Tribunal is therefore satisfied that the charge against the Commissioner should be summarily dismissed as being both frivolous and vexatious and without any apparent merit.
81.I will not therefore go on to deal with the issue of the jurisdiction of the Tribunal to consider a charge against the Commissioner.
We add that this Court experienced much the same difficulties referred to by the Tribunal Member in understanding the appellant’s lines of reasoning. However, it is quite clear that she took into account all of the written material before her (including the 10 August 2015 further written particulars concerning paragraphs 4(c) and 4(d) of the subject charge) and all the submissions made by the appellant (including his submissions directed to the 10 August 2015 further written particulars concerning paragraphs 4(c) and 4(d) of the subject charge).
We further note that the Tribunal Member found a second basis for making an order for summary dismissal, namely that the complainant had, from 2010, held a deep grievance against MM and others involved in the original District Court proceedings and concluded that his charge against the Commissioner was a “thinly disguised attempt to force a reconsideration by this Tribunal in a backhanded way of his grievance against [MM].” We agree with the Tribunal Member’s conclusion and that this constitutes a further reason why the charge should have been summarily dismissed.
We appreciate that the appellant’s assertions (that there are a number of factual matters that, he suggests, are important when considering the conduct of MM in connexion with the District Court trial) may be the subject of comment in the reserved judgment of the LPDT following the hearing of the charges laid before the LPDT on 27 May 2015. This judgment is currently reserved, as referred to above. However, whatever relevance such matters may, or may not, have to findings concerning the conduct of the practitioners themselves, it is clear to us that such matters do not affect the correctness of the decision of the LPDT in relation to the charge against the Commissioner, the subject of this appeal.
We find that there is no evidence of professional misconduct or unsatisfactory conduct by the Commissioner. Having regard to all of the written material and oral submissions relied upon by the appellant, we can find no fault with the Tribunal Member’s approach to, or with her disposition of, the subject charge. None of the appellant’s grounds of appeal are made out and no other viable ground of appeal is established.
The Commissioner’s notice of alternative contention
On 4 October 2016, the solicitor for the Commissioner filed a notice of alternative contention contending that the process for disciplinary action in relation to the conduct of the LPCC was, at the relevant time, governed by s 73 of the Act; and that the usual procedures applicable to legal practitioners, including the laying of the charge, do not apply; and that the Tribunal should have dismissed the charge for this alternative and additional reason.
We note that the submissions now sought to be advanced by the Commissioner were referred to at the hearing but counsel for the Commissioner there indicated that it might be unnecessary to deal with them. Thus the Tribunal Member observed:
41.Counsel for the Commissioner argued that the matter could probably be dealt with by the Tribunal on the basis of the first two submissions and that there may be no need for the Tribunal to consider the third submission as to jurisdiction with respect to whether the Commissioner is a person against whom a charge can be laid under the Act.
We add that in November 2016, Parliament further amended the Act by inserting s 67B which specifically exempts the Commissioner from being the subject of a charge such as been laid here. Therefore, the questions raised by the notice of alternative contention are unlikely to arise in the future.
In all of the circumstances, we consider that it is not necessary to deal with the notice of alternative contention. Since we do not propose to dispose of this appeal by deciding the submissions there made by the Commissioner in his favour, it is not necessary to refer to the submissions made by the appellant in this regard.
Conclusion
For all of the reasons above, the appeal is dismissed.