McGeough v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee
[2024] WASCA 59
•24 MAY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MCGEOUGH -v- LAW COMPLAINTS OFFICER AS THE DELEGATE OF THE LEGAL PROFESSION COMPLAINTS COMMITTEE [2024] WASCA 59
CORAM: MITCHELL JA
VAUGHAN JA
HEARD: 24 MAY 2024
DELIVERED : 24 MAY 2024
PUBLISHED : 24 MAY 2024
FILE NO/S: CACV 126 of 2023
BETWEEN: JAMES MCGEOUGH
Appellant
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
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: JUDGE K GLANCY, DEPUTY PRESIDENT
MR D AITKEN, SENIOR MEMBER
MS R LAVERY, MEMBER
Citation: MCGEOUGH and LAW COMPLAINTS OFFICER AS THE DELEGATE OF THE LEGAL PROFESSION COMPLAINTS COMMITTEE [2023] WASAT 119
File Number : VR 26 of 2022
Catchwords:
Appeal - Practice and procedure - Application for security for costs - Turns on own facts
Legislation:
Nil
Result:
Application for security for costs granted
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| First Respondent | : | L R Nicholls |
| Second Respondent | : | J M Healy |
| Third Respondent | : | S D Hubbard |
Solicitors:
| Appellant | : | In Person |
| First Respondent | : | Legal Profession Complaints Committee |
| Second Respondent | : | Templar Legal Pty Ltd |
| Third Respondent | : | DLA Piper Australia - Perth |
Case(s) referred to in decision(s):
George 218 Pty Ltd v Bank of Queensland Limited [2016] WASCA 56
McGeough v Blatchford [2019] WASC 454
McGeough v Blatchford [2021] WASCA 169
McGeough v Blatchford [2022] HCASL 13
McGeough v Law Complaints Officer [2023] WASAT 119
REASONS OF THE COURT:
On 24 May 2024, we made orders allowing the third respondent's application for security for costs in the appeal in the amount of $15,000. We said that we would publish our reasons for making those orders later. These are our reasons for making the orders.
Background
The current appeal follows proceedings brought in the General Division of this court under the Family Provision Act 1972 (WA). The appellant and his brother, Rory McGeough, each brought claims under s 6 of that Act for provision out of the estate of their late mother, who died in 2015. The second respondent acted as solicitor for Rory McGeough in the Family Provision Act proceedings. The third respondent acted as counsel for Rory McGeough in those proceedings.
On 9 December 2019, the appellant's Family Provision Act application was dismissed. Rory McGeough's claim was successful. The primary judge determined that the provision made for Rory McGeough under the deceased's will should be increased to $150,000.[1] That order was made in a context where the value of the deceased's estate at the time of her death was $567,298.11.[2] By the time of the trial of the Family Provision Act proceedings, the value of the deceased's estate had been reduced to $356,129.31 by litigation relating to probate of the will and the appointment of an administrator.[3]
[1] McGeough v Blatchford [2019] WASC 454.
[2] McGeough v Blatchford [2019] WASC 454 [5].
[3] McGeough v Blatchford [2019] WASC 454 [8].
One of the matters at issue in the Family Provision Act proceedings was the extent to which Rory McGeough's health conditions impaired his ability to earn an income. The primary judge determined that the loss of an eye in 2010 resulted in Rory McGeough being unable to work in his previous occupation as a carpenter. That was so irrespective of whether Rory McGeough did or did not have a diagnosis of melanoma in the eye. The appellant contested that diagnosis, which was supported by a medical certificate adduced as evidence in the proceedings.[4]
[4] McGeough v Blatchford [2019] WASC 454 [155] - [156].
The appellant appealed against the primary judge's order allowing Rory McGeough's Family Provision Act application. One of the grounds of appeal contended that an alleged finding by the primary judge that Rory McGeough was not capable of work was against the weight of the evidence. On 17 September 2021, this court dismissed the appeal.[5] The High Court subsequently refused the appellant's application for special leave to appeal against this court's decision.[6]
[5] McGeough v Blatchford [2021] WASCA 169.
[6] McGeough v Blatchford [2022] HCASL 13.
On 14 December 2021, the appellant made a complaint to the Legal Profession Complaints Committee about the conduct of the second and third respondents in the Family Provision Act proceedings. In broad terms, the complaint was found by the State Administrative Tribunal to concern, among other things, the knowing adducing of false and misleading evidence, including evidence as to Rory McGeough's ability to work and medical records, and making submissions which were false and misleading.[7]
[7] McGeough v Law Complaints Officer [2023] WASAT 119 [42].
The appellant's complaint was dealt with under the provisions of the Legal Profession Act 2008 (WA). On 11 April 2022, the first respondent dismissed the appellant's complaints under s 415(1)(b) of the Legal Profession Act on the ground that they were misconceived and lacking in substance.[8]
[8] McGeough v Law Complaints Officer [2023] WASAT 119 [4], [10].
On 26 April 2022, the appellant applied to the Tribunal for a review of the first respondent's decision to dismiss his complaints to the Committee.[9] That right of review was provided for by s 435(1) of the Legal Profession Act.
[9] McGeough v Law Complaints Officer [2023] WASAT 119 [5].
On 5 December 2023, the Tribunal determined the appellant's review application on the papers. The Tribunal decided to affirm the first respondent's decision. The central part of the Tribunal's reasons was expressed in the following terms:[10]
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.
[10] McGeough v Law Complaints Officer [2023] WASAT 119 [57] - [60].
The appeal to this court
On 28 December 2023, the appellant instituted an appeal to this court against the Tribunal's decision. The appeal is pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA). Under that section, the appellant requires leave to appeal and an appeal can only be brought on a question of law.
The appellant filed his appellant's case on 11 March 2024. The grounds of appeal are somewhat difficult to follow, but their essence appears to us to be fairly and accurately summarised in the third respondent's answer:[11]
(a) the Tribunal erred and denied the Appellant procedural fairness by determining his application on the papers: ground 1;
(b) the Tribunal erred and denied the Appellant procedural fairness by dismissing on 7 December 2022 his applications for discovery from the Respondents: grounds 2 and 5.1;
(c) the Tribunal erred and denied the Appellant procedural fairness by dismissing on 7 February 2023 his applications for orders pursuant to s 35 of the State Administrative Tribunal Act against his brother and sister‑in‑law: grounds 2 and 5.2, 5.3, and 5.4;
(d) the Tribunal's reasons for decision were inadequate: ground 3;
(e) the Tribunal erred and denied the Appellant procedural fairness by ignoring relevant material: ground 4; and
(f) the Tribunal erred in allegedly incorrectly interpreting various provisions of its Act and thereby failed to exercise its statutory functions: ground 6.
[11] Third respondent's answer filed 8 April 2024, par 15.
The respondents have all filed notices of intention to appear in the appeal. They are each separately represented and have all filed respondent's answers which in effect contend that the grounds of appeal are without merit, that leave to appeal should be refused and that the appeal should be dismissed.
By application in an appeal filed on 3 April 2024, the third respondent seeks an order that the appellant provide security for his costs of the appeal in the sum of $25,000. That application is supported by an affidavit of Jock Inness‑Campbell affirmed 3 April 2024. The appellant opposes the application and relies on his own affidavit sworn on 18 April 2024. The third respondent was granted leave to rely on a supplementary affidavit of Mr Inness‑Campbell affirmed 3 May 2024, which attached a draft bill of the third respondent's anticipated costs in the appeal (estimated to be $45,674.75).
Security for costs: general principles
The general principles in relation to security for costs were outlined in George 218 Pty Ltd v Bank of Queensland Limited.[12] In summary:
1.The power to order security is exercised to serve the interests of justice.
2.The discretion to order security is unfettered but must be exercised judicially. 'Special circumstances' do not have to be shown before an order for security for costs is made against an appellant.
3.An appellant's inability to satisfy a costs order should the appeal fail is generally a significant factor in favour of an order for security for costs. However, if the respondent has caused the appellant's impecuniosity, that may be a relevant countervailing factor.
4.Impecuniosity is not in itself generally the sole ground for the making of an order for security. Even where the appellant is impecunious, in all the circumstances, the interests of justice may properly be served by not making such an order.
5.Other factors generally include the appellant's prospects of success, whether the appellant would be shut out of the appeal if security for costs were ordered, and whether there has been any delay in the respondent filing the application for security for costs.
6.Ultimately, each case will turn on its own circumstances, and it is not possible to set out an exhaustive list of the relevant considerations.
7.Where security is ordered against an impecunious appellant, the amount ordered should not be greater than is absolutely necessary.
[12] George 218 Pty Ltd v Bank of Queensland Limited [2016] WASCA 56 [41] ‑ [48].
Disposition
It appears from the affidavits of both the appellant and Mr Inness‑Campbell that the appellant does not hold any significant assets against which an order for costs could be enforced. The evidence does not establish that the third respondent has caused the appellant's impecuniosity.
The appellant is not seeking in the appeal to enforce some personal right to the payment of money or transfer of property to him. He is rather a person who has made a complaint to the relevant regulatory authority about the conduct of legal practitioners who acted for an opposing party in litigation in this court. While he is dissatisfied by the response to his complaint by the regulatory authority and the Tribunal on review, his personal interests are not substantially affected by the outcome of the appeal.
We have reviewed the Tribunal's reasons, the appellant's case and the respondents' answers. Our necessarily provisional view at this preliminary stage is that the appellant's prospects of a grant of leave to appeal against the Tribunal's decision, and the prospects of the appeal being allowed if leave to appeal is granted, are not strong.
The third respondent has not delayed in bringing the application for security for costs, having done so shortly after the filing of the appellant's case which disclosed the appellant's grounds of appeal and arguments in support of those grounds.
The appellant has not deposed that a requirement for security for costs would shut him out of prosecuting the appeal. Although he does not appear to have any substantial income or assets which could be used to provide that security, he does not depose as to an inability to obtain funding from some source. In any event, the factors to which we refer above count strongly in favour of requiring the provision of security for costs even if that might have the effect of preventing the appellant from prosecuting the appeal.
In all of the circumstances, we are satisfied that it is in the interests of justice to require the appellant to provide security for the third respondent's costs of the appeal.
However, we are not satisfied that it is appropriate to require the appellant to provide security in the amount sought by the third respondent. This is a case where the amount of security ordered against an appellant should not be greater than is absolutely necessary. In all the circumstances, we consider it to be in the interests of justice to require the provision of security for the third respondent's costs in the amount of $15,000.
Orders
For the above reasons, at the conclusion of the hearing of the third respondent's application, we made the following orders:
2.On or before 4.00 pm on 28 June 2024, the appellant must give security for the third respondent's costs of the appeal in the sum of $15,000 by payment of that amount into court.
…
10.Subject to orders 3 ‑ 9, the appeal be stayed until such time as the appellant has paid the sum of $15,000 into court as required by order 2.
11.If the appellant does not comply with order 2, the third respondent has liberty to apply, on seven days' notice, to have the appeal dismissed.
We reserved the question of costs on the third respondent's application, and other matters before the court on 24 May 2024.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RL
Associate to the Honourable Justice Mitchell
24 MAY 2024
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