McGeough v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [No 2]
[2024] WASCA 103
•26 AUGUST 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 [No 2] [2024] WASCA 103
CORAM: BUSS P
MITCHELL JA
HEARD: 23 AUGUST 2024
DELIVERED : 23 AUGUST 2024
PUBLISHED : 26 AUGUST 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 - Where appellant failed to comply with an order requiring that he pay money into court as security for the third respondent's costs of the appeal - Whether appeal should be dismissed for failure to comply with security for costs order - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed as against third respondent
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| First Respondent | : | L R Nicholls |
| Second Respondent | : | J M Healy |
| Third Respondent | : | J Inness-Campbell |
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):
McGeough v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [2024] WASCA 59
Thillagaratnam v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [2024] WASCA 73
REASONS OF THE COURT:
On 23 August 2024, at the hearing of the third respondent's application that the appeal be dismissed, we made orders including an order that the appeal be dismissed so far as it concerns the third respondent. We said that we would publish reasons for making those orders later. These are our reasons for making the orders.
Background
The background to the appeal is set out in the decision of this court in McGeough v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee.[1] By that decision, made on 24 May 2024, this court made orders (May orders) for the appellant to give security for the third respondent's costs of the appeal in the sum of $15,000 by payment of that amount into court. The May orders required payment into court by 4 pm on 28 June 2024. The May orders also stayed the appeal until the money was paid into court, subject to other orders made at that time. The May orders gave liberty to the third respondent to apply on seven days' notice to have the appeal dismissed if security was not provided.
[1] McGeough v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [2024] WASCA 59.
The appellant has not paid into court the amount of $15,000, or any amount, as security for the third respondent's costs. On 9 July 2024, after giving 7 days' notice to the appellant, the third respondent applied for the appeal to be dismissed for the appellant's failure to comply with the security for costs order. On 11 July 2024, Vaughan JA made programming orders for the hearing of the third respondent's application (July orders). The appellant did not file any affidavits in opposition to the application by 26 July 2024, as provided for by order 1 of the July orders. Nor did the appellant file submissions in opposition to the application by 9 August 2024, as required by order 3 of the July orders.
Late filing of documents by the appellant
On 22 August 2024, the appellant lodged at the Court of Appeal office an affidavit sworn by the appellant on 21 August 2024 and written submissions dated 21 August 2024. We ultimately considered it to be in the interests of justice to extend the time for filing of these documents provided for by the July orders. While there was no explanation for the delay in filing the documents, at the conclusion of the hearing it did not appear to us that the third respondent would be prejudiced by the court receiving the material.
On the morning of 23 August 2024, the appellant filed an application in an appeal seeking a 30-day adjournment of the hearing of the third respondent's application to dismiss the appeal. The stated purpose of the adjournment application was to enable the appellant to brief a barrister in the matter. The adjournment application was supported by an affidavit sworn by the appellant on 23 August 2024, in which he relevantly deposed:
a) Since the filing of the Appellant's Case on 11 March 2024, this appellant has unsuccessfully sought legal assistance to prosecute this appeal.
b) During the course of the intervening months one barrister has offered to provide assistance on a pro bono basis however there were questions regarding the arrangement relating to court processes which have remained unresolved.
c) I now seek a 30 day extension of time to provide me the opportunity to resolve these questions so as to avail myself of the legal assistance offered.
We refused the appellant's adjournment application. The appeal has been on foot since December 2023, so that the appellant has had a reasonable opportunity to obtain legal representation. There was no evidence as to what particular steps the appellant had taken to seek to obtain legal representation. The appellant's affidavit was vague as to why a 30-day adjournment was required. It did not provide any explanation of the 'questions regarding the arrangement relating to court processes which have remained unresolved' or what steps might be required to resolve those questions. There was no evidence of any concrete arrangement for the appellant to obtain the services of counsel. In the circumstances, it did not appear to us to be in the interests of justice to grant the adjournment, which was opposed by the third respondent.
Disposition of third respondent's application
There is no adequate explanation for the appellant's failure to comply with the May orders for the payment of money into court by way of security for the third respondent's costs of the appeal. Nor is there anything to indicate that the appellant will pay that amount into court in the near future. In oral submissions, the appellant said only that there was a 'possibility' of payment but that he was unable to make any commitment at this time.
It remains the case that the appellant has not provided full disclosure of his financial position so as to enable the court to make any assessment of his capacity to pay the amount ordered to be provided as security for costs. The appellant's affidavit sworn on 21 August 2024 annexes an email from a third party dated '21 March' which suggests that person may have limited capacity to lend the appellant money. However, that evidence says little about the appellant's current financial situation.
As was noted in the court's earlier decision in this matter, the prospects of the appellant obtaining leave to appeal, and the appeal being allowed, do not appear to be strong. As was recently recognised in Thillagaratnam v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee,[2] the fact that a person in the position of the appellant is merely a complainant to a regulatory authority, who is dissatisfied by the response of the regulatory authority, counts against the grant of leave to appeal. That is because, generally, leaving the decision which is the subject of the appeal unreversed does not give rise to any substantial injustice, even assuming the decision to be wrong. The refusal of leave to appeal will not generally adversely affect any right, duty or liability of the complainant. This would appear to be a powerful consideration against the grant of leave to appeal in the present case. This is also a factor counting in favour of dismissing the appellant's appeal for failure to comply with the security for costs order, as the dismissal of the appeal will not affect the appellant's substantive rights. Further, it is not apparent that the Tribunal's decision in the present case is wrong in law.
[2] Thillagaratnam v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [2024] WASCA 73 [34], [48].
It is also relevant to note that the appellant's complaint to the first respondent which is the subject of the appeal was made on 14 December 2021. The matter has been ongoing for over two years and eight months, and there is a public interest in the proceedings being concluded.
In the circumstances, at the conclusion of the hearing on 23 August 2024, we considered it to be appropriate for this court to dismiss the appeal, so far as it relates to the third respondent, for the appellant's failure to comply with the order requiring payment of security for the third respondent's costs.
Position of the second respondent
We note that, by application in an appeal filed on 22 May 2024, the second respondent also applied for security for costs. The May orders included orders programming the second respondent's application for a hearing. Neither the appellant nor the second respondent complied with those programming orders in a way that enabled the second respondent's application to progress to a hearing. At the hearing on 23 August 2024, the appellant and the second respondent agreed to extensions of time under those programming orders.
The Tribunal's orders which are the subject of this appeal dismissed the appellant's application for a review of the first respondent's decision to dismiss a complaint brought by the appellant against the second and third respondents. The interests of the third respondent are not directly affected by the appeal against the Tribunal's orders so far as they relate to the second respondent. The third respondent is not a necessary party on that aspect of the appeal. The second respondent's application for security for costs has not been determined. In those circumstances, we considered that it would not be appropriate to wholly dismiss the appeal. Rather, we were of the view that the appeal should be dismissed only so far as it related to the complaint made by the appellant about the third respondent.
Costs
We considered that the costs of the appeal, as between the appellant and third respondent, should follow the event. The first respondent's costs of the hearing on 23 August 2024 were reserved, to enable an assessment of the first respondent's position when the ultimate outcome of the appeal is known. Counsel for the second respondent accepted that it was appropriate that there be no order as to the second respondent's costs of the hearing on 23 August 2024.
Orders
For the above reasons, at the hearing on 23 August 2024 we made orders having the effect of:
1.Dismissing the appellant's application for an adjournment of the hearing.
2.Extending the time for the appellant to file and serve affidavits and submissions in opposition to the third respondent's application to dismiss the appeal, so as to enable the documents lodged on 22 August 2024 to be accepted for filing.
3.Dismissing the appeal against the Tribunal's orders so far as they concern:
(a)the dismissal of the appellant's application to the Tribunal for a review of the first respondent's decision to dismiss a complaint brought by the appellant against the third respondent; and
(b)the affirmation of the first respondent's decision of 11 April 2022 to dismiss the complaint brought by the appellant against the third respondent.
4.Discharging the stay of the appeal pending payment of security for the third respondent's costs of the appeal.
5.Extending time for compliance with orders programming the second respondent's application for security for costs for hearing.
6.Ordering the appellant to pay the third respondent's costs, including reserved costs, of the appeal to be assessed if not agreed.
7.Reserving the first respondent's costs of the hearing on 23 August 2024 and making no order as to the second respondent's costs of that hearing.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Hon Justice Mitchell
26 AUGUST 2024
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