MCGEOUGH and LAW COMPLAINTS OFFICER AS THE DELEGATE OF THE LEGAL PROFESSION COMPLAINTS COMMITTEE - [2023] WASAT 119

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION:   MCGEOUGH and LAW COMPLAINTS OFFICER AS THE DELEGATE OF THE LEGAL PROFESSION COMPLAINTS COMMITTEE [2023] WASAT 119
MEMBER:   JUDGE K GLANCY, DEPUTY PRESIDENT
MR D AITKEN, SENIOR MEMBER
MS R LAVERY, MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   5 DECEMBER 2023
FILE NO/S:   VR 26 of 2022
BETWEEN:   JAMES MCGEOUGH
Applicant
AND
LAW COMPLAINTS OFFICER AS THE DELEGATE OF THE LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
DAVID JAMES KIRCHNER
Second Respondent
PETER GILBERT MCGOWAN
Third Respondent

Catchwords:

Vocational regulation – Legal practitioners – Review of decision dismissing complaint about legal practitioners – Application for review of decision of Law Complaints Officer as delegate of Legal Profession Complaints Committee to dismiss complaint against practitioners – Allegation of unsatisfactory professional conduct or professional misconduct – Complaint that practitioners had led false evidence in Supreme Court – Transitional provisions – Effect of repeal of the Legal Profession Act 2008 (WA) and commencement of Legal Profession Uniform Law Application Act 2022 (WA) upon application for review – Legal Profession Conduct Rules 2010 (WA) – Decision to dismiss complaint affirmed

Legislation:

Family Provisions Act 1972 (WA)
Legal Profession Act 2008 (WA), s 319, s 319(1)(b), s 319(1)(a)(i), s 319(2), s 319(3), s 319(3)(a), s319(3)(c), s 415(1)(b), s 425(a), s 435, s 435(1)(a)

Legal Profession Conduct Rules 2010 (WA), r 34, r 36
Legal Profession Uniform Law (WA), s 266, s 277
Legal Profession Uniform Law Application Act 2022 (WA), s 6, s 260(a)
State Administrative Tribunal Act 2004 (WA), s 17(1), s 18, s 27(1), s 27(2), s 29(1), s 29(3), s 29(3)(a), s 48(1)(d), s 48(2)(b) s 87(2), s 98

Result:

The First Respondent's decision made on 11 April 2022 is affirmed

Category: B

Representation:

Counsel:

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

Solicitors:

Applicant	:	N/A
First Respondent	:	Law Complaints Officer as delegate of the Legal Profession Complaints Committee
Second Respondent	:	N/A
Third Respondent	:	DLA Piper Australia - Perth

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

Briginshaw v Briginshaw (1938) 60 CLR 336
Chen and Law Complaints Officer [2022] WASAT 26
De-Abreu and Legal Profession Complaints Committee [2022] WASAT 42
Giudice v Legal Profession Complaints Committee [2014] WASCA 115
Greenwood and Legal Profession Complaints Committee [2010] WASAT 31
Laurent and Commissioner of Police [2009] WASAT 254
Lawson and Legal Profession Complaints Committee [2019] WASAT 36
McGeough v Ian Torrington Blatchford [2021] WASCA 169
McGeough v Ian Torrington Blatchford as administrator of the estate of Margaret Mary McGeough [2019] WASC 454
McGeough v Ian Torrington Blatchford as administrator of the estate of Margaret Mary McGeough [2019] WASC 454 (S)
McGeough v Ian Torrington Blatchford as Administrator of the Estate of Margaret Mary McGeough [No 2] [2022] WASCA 9

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction and outcome

Mr James McGeough (Applicant) has applied for a review of a decision made by the First Respondent under s 435(1)(a) of the Legal Profession Act 2008 (WA) (LP Act) to dismiss a complaint brought by him against David John Kirchner (Second Respondent) and Peter Gilbert McGowan (Third Respondent) (the Reviewable Decision).
For reasons which we have set out below we have determined that the correct and preferable decision upon the review is to dismiss the Applicant's complaint.

The Complaint, the Application and the Tribunal's jurisdiction on review

The complaint was made to the first respondent, the Legal Profession Complaints Committee (LPCC) (First Respondent), by the Applicant on 14 December 2021.
The Reviewable Decision was made by the Law Complaints Officer, as delegate of the LPCC, on 11 April 2022.
On 26 April 2022, the Applicant applied to the Tribunal for a review of the Reviewable Decision pursuant to s 435(1) of the LP Act.
The Legal Profession Uniform Law Application Act 2022 (WA) (Application Act) commenced on 1 July 2022. Section 260(a) of the Application Act repealed the LP Act. Section 6 of the Application Act provides that the Legal Profession Uniform Law (WA) (Uniform Law) applies as a law of Western Australia from 1 July 2022. Part 16 of the Application Act however provides for savings and Transitional Provisions (Transitional Provisions).
Section 319 of the Transitional Provisions applies to these proceedings because the application to the Tribunal for review was made before the commencement day (s 319(1)(a)(i)), and the Tribunal had not made a final decision before the commencement day (s 319(1)(b)).
In accordance with s 319(2) of the Transitional Provisions, s 435 of the LP Act therefore applies to these proceedings as if that section was not repealed.
Section 435 of the LP Act provides as follows:
435.Review of Complaints Committee decision
(1)Subject to subsection (2), a person aggrieved by —
(a)a decision of the Complaints Committee to dismiss a complaint; or
(b)a decision made by the Complaints Committee under section 426,
may apply to the State Administrative Tribunal for a review of the decision.
(2)If the Complaints Committee, in its reasons for its decision, specifically finds the complaint —
(a)to be trivial, unreasonable, vexatious or frivolous; or
(b)in the case of a complaint purporting to be made under section 410(1)(e), to be a matter in which the complainant does not have, or did not have, a direct personal interest,
the person aggrieved cannot apply to the State Administrative Tribunal for a review of the decision without the leave of the Tribunal.
In this case, the First Respondent informed the Applicant that his complaint was dismissed pursuant to s 415(1)(b) of the LP Act stating:[1]
These complaints are therefore misconceived and lacking in substance and so I dismiss them under section 415(1)(b) of the LPA.
[1] First Respondent's Bundle of Documents, pages 1 – 3.
Accordingly, no leave is required of the Tribunal for the Applicant to proceed with the review.
Section 319(3) of the Transitional Provisions essentially provides that, if the Tribunal sets aside the decision to dismiss the complaint under the LP Act, the complaint is taken, on and from the commencement day, to have been made under the Uniform Law s 266 (s 319(3)(a)), and the complaint must otherwise be dealt with under the Uniform Law Part 5.2 (Complaints) (s 319(3)(c)).
Section 319(4) of the Transitional Provisions provides that if the Tribunal affirms the decision to dismiss the complaint under the LP Act, the whole of the complaint is taken to have ended under the Uniform Law section 277.
In conducting the review, the Tribunal exercises its review jurisdiction.[2] The review is to be dealt with in accordance with the enabling Act (in this case the LP Act) and the State Administrative Tribunal Act 2004 (WA) (SAT Act), subject to any modification of the operation of the SAT Act by the enabling Act.[3]
[2] SAT Act, s 17(1).
[3] SAT Act, s 18.
When exercising its review jurisdiction, the Tribunal conducts a hearing de novo and is not confined to finding error in the Reviewable Decision,[4] instead being required to reach the correct and preferable decision as at the time of the decision upon the review.[5]
[4] SAT Act, s 27(1).
[5] SAT Act, s 27(2).
The Tribunal's role in review proceedings under the LP Act is generally well understood and uncontroversial. It was recently restated by the Tribunal in De-Abreu and Legal Profession Complaints Committee[6] and Chen and Law Complaints Officer.[7] The Tribunal's role is to determine whether there is any reasonable likelihood that the Tribunal might find the practitioner guilty of unsatisfactory professional conduct or professional misconduct if the matter is referred to it.[8]
[6] De-Abreu and Legal Profession Complaints Committee [2022] WASAT 42 at [60] – [66].
[7] Chen and Law Complaints Officer [2022] WASAT 26 at [86] – [91].
[8] LP Act, s 425(a).
The expression 'reasonable likelihood', which is used in s 425 of the LP Act, is said to be synonymous with the phrase 'reasonably likely'.[9] The expression 'reasonably likely' has been accepted to mean a chance which is 'fair', sufficient' or 'worth noting' and is not one capable of mathematical calculation.[10]
[9] Greenwood and Legal Profession Complaints Committee [2010] WASAT 31; (2020) SR (WA) 144 (Greenwood) at [27] – [29].
[10] Greenwood at [27].
In order for there to be reasonable cause to suspect that a practitioner engaged in conduct which could be characterised as professional misconduct or unsatisfactory professional conduct, there must be facts that exist which are sufficient to permit a reasonable person to form that suspicion.[11]
[11] Chen and Law Complaints Officer [2022] WASAT 26 at [96] – [99].
In determining whether there is a reasonable likelihood that a practitioner might be found to have engaged in professional misconduct or unsatisfactory professional conduct, we also need to bear in mind that although the issue of proof of an allegation of misconduct is determined on the balance of probabilities, the principles articulated in Briginshaw v Briginshaw[12] apply, and the Tribunal will need to feel an actual persuasion of the occurrence or existence of a relevant fact in determining whether or not the conduct of the kind alleged has been made out.
[12] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 – 362.
Because the Tribunal is conducting a review, it may only consider the complaints to which the Reviewable Decision relate and not any new complaints which the Applicant did not raise in his complaint to the LPCC dated 14 December 2021.[13]
[13] De-Abreu and Legal Profession Complaints Committee [2022] WASAT 42 at [66].
The Applicant does not bear any onus to show that a departure from the reviewable decision is justified.[14]
[14] Chen and Law Complaints Officer [2022] WASAT 26 at [89].
On the review, the Tribunal has functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision.[15] The Tribunal may affirm or vary the decision being reviewed. It may also set aside the decision and substitute its own decision, or send it back to the decision-maker for reconsideration in accordance with any directions or recommendations the Tribunal considers appropriate.[16]
[15] SAT Act, s 29(1).
[16] SAT Act, s 29(3).
Section 415(1)(b) of the LP Act provides that the LPCC may dismiss a complaint if the complaint is vexatious, misconceived, frivolous or lacking in substance.
The term 'misconceived' has been held to connote a misunderstanding of legal principle and 'lacking in substance' connotes 'an untenable proposition of law or fact'.[17]
[17] Laurent and Commissioner of Police [2009] WASAT 254 at [23]; Lawson and Legal Profession Complaints Committee [2019] WASAT 36 at [17].

Review conducted on the documents

Section 60(2) of the SAT Act permits the Tribunal to determine matters on the basis of the documents without the parties participating in a hearing where the Tribunal considers it is appropriate to do so.
We are satisfied that this is a case where it is appropriate to do so. The parties have all made written submissions in relation to the application.
The documents on which the review is to be determined are:
1.The Applicant's 8 Bundles of Documents filed 22 July 2022; Bundle of Documents filed 13 August 2022; Bundle of Documents filed 19 August 2022; Bundle of Documents filed 28 August 2022; Submissions dated 20 March 2023; Submissions dated 22 March 2023; Bundle of Documents dated 28 March 2023; Affidavit of James McGeough dated 23 June 2023; Submissions dated 23 June 2023; Submissions dated 1 September 2023; Submissions dated 3 September 2023; Submissions dated 4 September 2023; Submissions dated 20 September 2023; Application dated 23 October 2023; and Application dated 28 November 2023.
2.The First Respondent's Bundle of Documents dated 24 June 2022; and Submissions dated 16 September 2022.
3.The Second Respondent's Submissions dated 16 September 2022; Affidavit of David James Kirchner dated 7 November 2022; Affidavit of David James Kirchner dated 28 July 2022; Submissions dated 28 July 2023; and further Submissions filed 28 July 2023.
4.The Third Respondent's Submissions dated 16 September 2022 and 12 April 2023.

Background to the Complaint

The Applicant's complaint to the LPCC about the conduct of the Second and Third Respondents arose out of a Supreme Court proceeding in which he and one of his brothers (the Brother) made applications under the Family Provisions Act 1972 (WA) (FP Act) for greater provision from the estate of their late mother (the Deceased).
The Brother was represented by the Second Respondent of Templar Legal Pty Ltd. The Third Respondent appeared as counsel for the Brother in the Supreme Court proceeding on instructions from the Second Respondent.
The Applicant was initially represented but became self-represented in the course of the Supreme Court proceeding. He represented himself throughout the hearing.
The Brother's claim was successful, and he was awarded a more significant portion of the Deceased's estate. The Applicant's application was refused. His contentions were rejected and the Brother's evidence was accepted.[18] The Applicant was ordered to pay the Brother's costs of the Supreme Court proceeding as follows:[19]
(a)costs from the commencement of the proceeding to 22 October 2018 on a party/party basis fixed at $23,050.80, payable from the Applicant's remainder share of the estate; and
(b)costs on an indemnity basis from 23 October 2018 fixed at $96,628.00 payable forthwith from the Applicant's remainder share of the estate (reflecting the rejection of a Calderbank offer).
[18] McGeough v Ian Torrington Blatchford as administrator of the estate of Margaret Mary McGeough [2019] WASC 454.
[19] McGeough v Ian Torrington Blatchford as administrator of the estate of Margaret Mary McGeough [2019] WASC 454 (S) (McGeough v Blatchford (S)).
The trial judge also ordered that there be no order in relation to the Applicant's costs and refused the Applicant's application seeking costs from two non-parties (two of his other siblings).
The Applicant appealed the decision. The appeal was dismissed by the Court of Appeal and the Applicant was ordered to pay the Brother's costs of the appeal.[20]
[20] McGeough v Ian Torrington Blatchford [2021] WASCA 169 (McGeough v Blatchford).
The Applicant then applied for a stay of execution pending determination of an application for special leave to appeal to the High Court and pending resolution of complaints made to the LPCC. That application was refused by the Court of Appeal and the Applicant was ordered to pay the Brother's costs of the stay application.[21]
[21] McGeough v Ian Torrington Blatchford as Administrator of the Estate of Margaret Mary McGeough [No 2] [2022] WASCA 9.
The Applicant applied for special leave to appeal to the High Court. Special leave to appeal was refused by the High Court in February 2022.

The Complaint

The Applicant first contacted the First Respondent raising concerns about the conduct of the Second and Third Respondents in the Supreme Court proceeding on 14 December 2021. Further information and a letter detailing the complaint was subsequently sent to the First Respondent on 14 December 2021 (December letter).
The First Respondent sought additional information from the Applicant on 21 December 2021 and the Applicant provided it by email on 11 January 2021.
On 24 February 2022, an officer of the First Respondent informed the Applicant by letter that the First Respondent had been unable to identify any conduct concerns to refer for investigation. The officer informed the Applicant that if he thought that there was further material to be taken into account, he should contact the First Respondent.
On 21 March 2022, the Applicant sent an email to the First Respondent asking the officer to review 'one key element of [his] original complaint' which concerned a medical certificate which had been annexed to the Brother's affidavit. That medical certificate addressed the issue of whether there were likely to be long term limitations on the Brother's ability to work. No new information or material was provided to the LPCC by the Applicant in that email.
On 4 April 2022, the Applicant sent an email to the First Respondent with what was said to be a summary of the bills of costs from various firms for work billed on the matter. The Applicant informed the First Respondent that he was preparing a further complaint specific to 'Legal Profession Conduct Rule breaches' and the charging of excessive fees.
No further complaints were made to the First Respondent about those matters.
Having reviewed the details of the complaint made by the Applicant in the December letter, we think it fair to say it was difficult to distil the substance of the complaint. Having done our best, and considering the way the complaint has been identified by each of the respondents, we are comfortably satisfied that the complaints which were made by the Applicant are, in essence, that:
1.the Second Respondent knowingly, or recklessly, prepared and filed affidavits of the Brother in the Supreme Court proceeding in breach of Rules 34 and 36 of the Legal Profession Conduct Rules 2010 (WA) (Conduct Rules) in that they:
(i)contained evidence of the Brother's inability to work, which was inconsistent with a medical certificate which stated that he likely had no long term limitations which could affect his ability to work;
(ii)contained evidence that the Brother was unemployed, which was inconsistent with other evidence he gave that he was self-employed;
(iii)contained evidence of the Brother's whereabouts in 2016, which was inconsistent with other evidence of where he had been in 2016;
(iv)contained 'obfuscated' evidence about the Brother's property and when it had been sold;
(v)had mischaracterised the Applicant's provision of financial information;
(vi)withheld information about the Brother's bank accounts; and
(vii)claimed that their deceased mother had had dementia when two medical certificates stated she had full legal capacity; and
2.the Second and Third Respondents relied on the affidavits in the Supreme Court proceedings knowing that they contained false statements;
3.the Second and Third Respondents allowed the Brother to give evidence that he had been diagnosed with 'choroidal melanoma' when his affidavit said he had been diagnosed with 'corneal melanoma';
4.the Second and Third Respondents allowed the Brother to give evidence about his separation from his wife, which was contradicted by what the Brother had said in an earlier affidavit in 2016; and
5.the Third Respondent made a statement in closing submissions in the Supreme Court proceeding to the effect that there was an ongoing issue with the Brother's employment capacity as a result of physical limitations although he had taken giant strides to ensure a future, when the Third Respondent knew that that statement was misleading.

The Reviewable Decision

As we have already identified, the First Respondent dismissed the Applicant's complaint on the basis that it was misconceived and lacking in substance.
In the Reviewable Decision, the First Respondent identified that it was his view that:
1.the Applicant had not raised any new issues in his letter of 21 March 2022;
2.the medical certificate had been in evidence in the Supreme Court proceeding and the trial judge had heard the evidence of the Brother and the Applicant and had come to a decision, based on all of the evidence, with which the Applicant simply disagreed;
3.the Applicant had raised his concerns about the conduct of the Second and Third Respondents in the course of the Supreme Court proceeding and had also raised his argument about the medical certificate and the trial judge found that his view that their conduct was misleading and deceptive, was 'patently misconceived'[22] and that his complaints were 'inappropriate and scandalous';[23]
4.the trial judge accepted that the Brother had physical limitations based on all of the evidence;
5.the court's job was to weigh all of the competing evidence and to decide which it prefers;
6.if a party disagrees with the evidence of the other side, they can challenge it in the proceeding;
7.if a party disagrees with a court's decision they can appeal;
8.the Court of Appeal had dismissed the Applicant's appeal in which he argued that the trail judge was wrong not to have made a finding consistent with opinion expressed in the medical certificate. The Court of Appeal had found that the trial judge's findings 'were reasonably open to her Honour on the evidence as a whole';[24] and
9.it is not possible to challenge a court's decision by making a complaint about a practitioner's conduct in proceedings; it is not the practitioner who gives evidence.
[22] McGeough v Blatchford(S) at [97].
[23] McGeough v Blatchford(S) at [96].
[24] McGeough v Blatchford at [33].

Resolution

It is not in dispute that the Second and Third Respondents are Australian legal practitioners within the meaning of s 5 of the LP Act and are therefore, person about whom complaints about conduct may be made under the LP Act.

Bill of costs issue

In his application dated 26 April 2022, the Applicant identified the orders he seeks from the Tribunal. One of them is 'Bill of costs disallowed'.
Although foreshadowed by the Applicant to the LPCC, the Applicant made no complaint about the Second and Third Respondents' conduct in relation to any costs issue.
To the extent that the Applicant seeks in this review proceeding to have the Tribunal consider any complaint about the Second and Third Respondents' conduct in relation to costs matters, the review application is misconceived. We do not have jurisdiction in relation to that matter because the First Respondent did not make any decision in relation to it which could be the subject of a review.
In any event, we could not make the order sought by the Applicant. We have no jurisdiction, upon a review application, to disallow a bill of costs.

Other conduct issues

The allegations made by the Applicant to the LPCC about the conduct of the Second and Third Respondents in the course of the Supreme Court proceeding were set out above. They are the same as those which were made to the trial judge in the course of the Supreme Court proceeding and in the Court of Appeal. There is nothing new in the material before us.
The Applicant had the opportunity to, and did, challenge the Brother's evidence during the hearing. The fact that the trial judge formed a different view of the evidence to that which is contended for by the Applicant, which view the Court of Appeal found was reasonably open to her Honour, does not mean that the practitioners who represented the Brother in that proceeding did any act that could be said to amount to unsatisfactory professional conduct or professional misconduct.
In order to make out an allegation of professional misconduct or unsatisfactory professional conduct the Tribunal would have to be satisfied, based on cogent evidence, that the Second and Third Respondents knowingly or recklessly (ie. with subjective indifference to the truth),[25] advanced a case which they knew at the time was not true.
[25] Giudice v Legal Profession Complaints Committee [2014] WASCA 115.
In his complaint, the Applicant asserted that the conduct of the Second and the Third Respondents breached rules 34 and 36 of the Conduct Rules.
Rule 34 is concerned with practitioners' obligations to be frank with the court. It provides:
34.Frankness in court
(1)A practitioner must not knowingly or recklessly mislead a court.
(2)A practitioner must correct a misleading statement made to a court by the practitioner as soon as possible after the practitioner becomes aware that the statement was misleading.
(3)A practitioner who does not correct an error in a statement made to a court by another person has not by that omission made a misleading statement.
(4)A practitioner seeking any interlocutory relief in an ex parte application must disclose to the court all factual and legal matters —
(a)that are within the practitioner's knowledge; and
(b)that are not protected by legal professional privilege; and
(c)that the practitioner has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the practitioner's client.
(5)A practitioner who has knowledge of matters that the practitioner believes are protected by legal professional privilege but that otherwise the practitioner would be required to disclose under subrule (4) must —
(a)seek instructions for the waiver of legal professional privilege so as to permit the practitioner to disclose those matters to the court; and
(b)if the client does not waive the privilege —
(i)inform the client of the client's responsibility to authorise such disclosure and the possible consequences of not doing so; and
(ii)inform the court that the practitioner cannot assure the court that all matters which should be disclosed by the practitioner's client have been disclosed to the court.
(6)A practitioner must, at the appropriate time in the hearing of a matter and if the court has not yet been so informed, inform the court of —
(a)any binding authority; or
(b)where there is no binding authority, any other authority decided by an Australian appellate court; or
(c)any authority on the same or materially similar legislation as that in question in the case, including any authority decided at first instance in the Federal Court or a Supreme Court, which has not been disapproved; or
(d)any applicable legislation, of which the practitioner is aware and that the practitioner reasonably believes may be relevant to a matter before the court and adverse to the case of the practitioner's client.
(7)A practitioner need not inform the court of things referred to in subrule (6) if the opponent tells the court that —
(a)the opponent's whole case will be withdrawn; or
(b)the opponent will consent to final judgment in favour of the practitioner's client, unless the appropriate time for the practitioner to have informed the court of those matters has already arrived or passed.
(8)A practitioner must inform the court of things referred to in subrule (6) that the practitioner becomes aware of after judgment or decision has been reserved and while the case remains pending, whether the authority or legislation came into existence before or after the judgment or decision was reserved.
(9)For the purposes of subrule (8) a practitioner may inform the court by —
(a)sending a letter to the court, copied to the opponent, that is limited to the relevant reference unless the opponent has consented beforehand to any further material in the letter; or
(b)requesting the court to relist the case for further argument on a convenient date, after first notifying the opponent of the intended request and consulting the opponent as to the convenient date for further argument.
(10)A practitioner is not required to inform the court of things referred to in subrule (6) that would have rendered admissible evidence tendered by the prosecution that the court ruled to be inadmissible without calling on the defence.
(11)A practitioner who does not disclose a fact known to the practitioner about a client's character or past has not by that omission made a misleading statement.
(12)A practitioner who knows or suspects that the prosecution is unaware of a client's previous conviction must not ask a prosecution witness whether the client has previous convictions.
(13)A practitioner who knows or suspects that a court may be unaware of an effect of an order which the court is making must, as soon as the practitioner becomes aware that the court may be unaware of the effect of the order, inform the court.
Rule 36 concerns a practitioner's obligation to use court processes and privilege responsibly. It provides:
36.Responsible use of court process and privilege
(1)A practitioner must take all reasonable and practicable steps to ensure that work the practitioner does in relation to a case is done so as to —
(a)confine the case to identified issues which are genuinely in dispute; and
(b)have the case ready to be heard as soon as practicable; and
(c)present the identified issues in dispute clearly and succinctly; and
(d)limit evidence, including cross-examination, to that which is reasonably necessary to advance and protect the client's interests which are at stake in the case; and
(e)occupy as short a time in court as is reasonably necessary to advance and protect the client's interests which are at stake in the case.
(2)A practitioner must ensure that action by or on behalf of the practitioner to invoke the coercive powers of a court or to make allegations or suggestions under privilege against any person —
(a) is reasonably justified by the material then available to the practitioner;
(b) is appropriate for the advancement of the client's case on its merits; and
(c) is not made principally in order to harass or embarrass the person; and
(d) is not made principally in order to gain some collateral advantage for the client or the practitioner or the instructing practitioner (if any) out of court.
(3)A practitioner must not draw or settle any court document that alleges criminality, fraud or other serious misconduct by a person unless the practitioner believes on reasonable grounds that —
(a) factual material already available to the practitioner provides a proper basis for the allegation; and
(b) the evidence by which the allegation is made will be admissible; and
(c) the practitioner's client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the client's case if it is not made out.
(4)A practitioner must not open as a fact any allegation which the practitioner does not then believe on reasonable grounds will be capable of support by available evidence.
(5)A practitioner must not cross-examine so as to suggest criminality, fraud or other serious misconduct on the part of any person unless —
(a)the practitioner believes on reasonable grounds that the material already available to the practitioner provides a proper basis for the suggestion; and
(b) in cross-examination going to credit alone, the practitioner believes on reasonable grounds that affirmative answers to the suggestion would diminish the witness's credibility.
(6)A practitioner must make all reasonably practicable enquiries before the practitioner can have reasonable grounds for holding a belief required by subrule (2), (3), (4) or (5).
(7)For the purpose of subrule (6), a practitioner may rely on the opinion of an instructing practitioner to establish reasonable grounds for holding a belief, except in the case of a closing address or submission on the evidence.
(8)A practitioner must not suggest criminality, fraud or other serious misconduct against any person in the course of the practitioner's address on the evidence unless the practitioner believes on reasonable grounds that the evidence in the case provides a proper basis for the suggestion.
(9)A practitioner who has instructions which justify submissions for the client in mitigation of the client's criminality and which involve allegations of serious misconduct against any other person not able to answer the allegations in the case must seek to avoid disclosing the other person's identity directly or indirectly unless the practitioner believes on reasonable grounds that such disclosure is necessary for the defence of the client.
(10)In proceedings in which an allegation of sexual assault, indecent assault or the commission of an act of indecency is made and in which the alleged victim gives evidence —
(a)a practitioner must not ask that witness a question or pursue a line of questioning which tends —
(i)to mislead or confuse the witness; or
(ii)to be unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; and
(b)a practitioner must take into account any particular vulnerability of the witness in the matter and tone of the questions that the practitioner asks.
The Applicant had an opportunity to challenge the Brother's evidence in cross-examination and to present his own evidence during the Supreme Court proceeding.
Despite the voluminous material presented to us in this review application there is no evidence (i.e. no facts existing) which is sufficient to induce us to suspect that the Applicant's allegation that either the Second Respondent or the Third Respondent breached either rule 34 or rule 36 of the Conduct Rules is correct.
We do not intend to rehearse in these reasons for decision, all the material which was filed with the Tribunal in this application. We have considered that material. It suffices to say that it was all considered by the trial judge in the Supreme Court proceeding and by the Court of Appeal in the appeal proceeding which followed. The Applicant's allegations about the Second and Third Respondents amount to no more than bare assertions. At most the Applicant's case is that, because there was evidence before the trial judge in the Supreme Court proceeding with which he disagreed, and which the trial judge weighed and did not accept, the legal practitioners representing the Brother must have known, or cared not, that it was false.
There is nothing in the material before us that would lead us to find that there is any reasonable likelihood that the Tribunal might find the Second and Third Respondents guilty of unsatisfactory professional conduct or professional misconduct if the matter is referred to the Tribunal.
Standing in the shoes of the First Respondent, we find that the correct and preferable decision on the review is to dismiss the Applicant's complaint, on the basis that it is misconceived and lacking in substance was the correct decision.
As a result, pursuant to s 29(3)(a) of the SAT Act, we affirm the decision of the First Respondent made on 11 April 2022.

Costs

The Second Respondent has indicated in his written submissions that he wishes to be heard in relation to the costs of this review application.
The Third Respondent submits that the Applicant ought to be required to pay the Third Respondent's costs pursuant to s 87(2) of the SAT Act because the allegations were serious and entirely without substance.
The Tribunal is required, by s 89 of the SAT Act, when making an order for the payment of costs, where it does not fix the costs, to assess the costs or settle costs in accordance with the rules.
If any of the Respondents wish to persist with a costs application we require them, by 21 February 2024, to lodge with the Tribunal and give to the Applicant and each other Respondent, any material and submissions on which they intend to rely in support of their costs application and as to the quantum of costs.
If any material or submissions as to costs are lodged by any of the respondents, the Applicant has until 6 March 2024 to lodge with the Tribunal and give to the respondents any responsive material and submissions upon which he intends to rely.
The exchange of those documents and submissions may enable us to fix any costs we decide to order be paid. We note we have not made any decision about costs at this point.
Subject to any further order of the Tribunal, pursuant to s 60(2) of the SAT Act any costs application will be determined on the documents.

SAT Act s 48 and s 98 applications

On 28 November 2023, after the decisions was reserved, the Applicant filed in the proceeding what are said to be applications under s 48(1)(d) and s 98 of the SAT Act.
The Applicant submits that, in this proceeding, the Second Respondent has engaged in 'combative defensive conduct by filing submissions which are uncooperative and argumentative'. He submits that he is entitled to relief of the kind provided for in s 48(2)(b) and in accordance with s 98 of the SAT Act.
Section 48 of the SAT Act provides as follows:
48.Proceedings being conducted to cause disadvantage, Tribunal's powers as to
1.This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by that conduct such as –
(a)failing to comply with an order or direction of the Tribunal without reasonable excuse; or
(b)failing to comply with this Act or the enabling Act; or
(c)asking for an adjournment the need for which is attributable to a failure described in paragraph (a) or (b); or
(d)attempting to deceive another party or the Tribunal; or
(e)vexatiously conducting the proceeding; or
(f)failing to attend any hearing in the proceeding.
2.If this section applies, the Tribunal may –
(a)if the party causing the disadvantage is the Applicant, order that he proceeding be dismissed or struck out;
(b)if the party causing the disadvantage is not the Applicant –
(i)determine the proceeding in favour of the Applicant and make any appropriate orders; or
(ii)order that the party causing the disadvantage be struck out of the proceeding.
3.The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member.
4.The Tribunal may act under subsection (2) on the application of a party or on its own initiative.
In particular the Applicant submits that the Second Respondent's submission that the trial judge made findings based on the court's perception of differing financial needs and economic circumstances between the parties is 'an untrue statement and inconsistent with the Family provisions law and there is no legal basis for the Second Respondent to make such claims other than to frustrate the Tribunal and to detract from his non-disclosure of material facts as was the case at trial' which were particularised in the Applicant's submissions of 1 September 2023.
In our view, the Second Respondent's statement that, 'from the terms of the judgments of Smith J, we contend that the Supreme Court made findings based on the Court's perception of the differing needs and economic circumstances between the parties' correctly summarised the position correctly.
The Applicant's allegation that this contention is somehow designed to mislead the Tribunal and other parties to the review proceeding is therefore mistaken.
In any event, the s 48 application is misconceived. We do not consider that a submission made by a party, with which another party disagrees, can be regarded as an attempt by its maker to deceive the Tribunal.
Section 98 of the SAT Act provides as follows:
A person who gives to the Tribunal information knowing it to be false or misleading in a material particular commits an offence.
Penalty: $10 000.
The application, in which the Applicant seeks to have the Tribunal make a finding in the review proceeding that the Second Respondent has committed an offence under s 98 of the SAT Act is also misconceived. The Tribunal is not authorised to prosecute a party for an offence under the SAT Act and nor does it have jurisdiction to hear and determine an allegation that an offence under that section has been committed. A complaint that an offence has been committed would need to be commenced by the issuing of a prosecution notice by a properly authorised person. It would need to be determined to the criminal standard in a court of competent jurisdiction. This is not the forum in which the very serious allegation made against the Second Respondent by the Applicant will be resolved.

Orders

1.Pursuant to s 47(1) of the State Administrative Tribunal Act 2004 (WA) the application dated 28 November 2023 is dismissed on the basis that it is misconceived.
2.The First Respondent's decision made on 11 April 2022 is affirmed.
3.If any respondent wishes to persist with a costs application, then:
(a)By 21 February 2024, the respondent is to file in the Tribunal and give to the Applicant any material and submission upon which they intend to reply in support of their costs application.
(b)By 6 March 2024, the Applicant is to file in the Tribunal and give to the respondents any responsive material and submissions upon which he intends to rely.

(c)Pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA), and subject to any further order of the Tribunal, any costs application is to be determined on the documents unless by 13 March 2024 either of the parties inform the Tribunal that they consider an oral hearing in relation to the costs should be held.

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