McGeough v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [No 3] - [2024] WASCA 127

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 3] [2024] WASCA 127
CORAM:   VAUGHAN JA
VANDONGEN JA

HEARD:   25 SEPTEMBER 2024
DELIVERED          :   21 OCTOBER 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:

Leave to appeal - Legal Profession Act 2008 (WA) - Section 105 State Administrative Tribunal Act 2004 (WA) - Revocation of order referring leave to appeal to the appeal hearing - Interests of justice - Question of law - Sufficient doubt about State Administrative Tribunal's decision - No substantial injustice occasioned if error uncorrected - Complainant to regulatory authority - No adverse effect on right, duty or liability - Application for leave to appeal dismissed - Appeal dismissed

Legislation:

Legal Profession Act 2008 (WA) (repealed), s 435(1)
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B(1)(b) ‑ (f)
State Administrative Tribunal Act 2004 (WA), s 60(2), s 105
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(kb)(i)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
First Respondent	:	L R Nicholls
Second Respondent	:	J M Healy
Third Respondent	:	No appearance

Solicitors:

Appellant	:	In person
First Respondent	:	Legal Profession Complaints Committee
Second Respondent	:	Templar Legal Pty Ltd
Third Respondent	:	No appearance

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

Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478
Livingspring Pty Ltd v Kliger Partners [2008] VSCA 93; (2008) 20 VR 377
McGeough and Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [2023] WASAT 119
McGeough v Blatchford as administrator of the estate of Margaret Mary McGeough [2019] WASC 454
McGeough v Blatchford as administrator of the estate of Margaret Mary McGeough [2021] WASCA 169
McGeough v Blatchford as administrator of the estate of Margaret Mary McGeough [2022] HCASL 13
McGeough v Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [2024] WASCA 59
McGeough v Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [No 2] [2024] WASCA 103
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331
SH v Chief Executive Officer of Department of Communities [2019] WASCA 31
Thillagaratnam v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [2024] HCASL 213
Thillagaratnam v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [2024] WASCA 73

JUDGMENT OF THE COURT:

Overview

This appeal came before us on 25 September 2024 pursuant to a registrar's notice to attend dated 30 August 2024.
The registrar's notice raised two matters for determination. First, the second respondent's application in an appeal dated 22 May 2024 for security for costs. Second, whether an earlier order of the court referring the question of leave to appeal to the appeal hearing should be revoked; and, if so, whether there should be leave to appeal.
For the reasons that follow we would revoke the order referring the question of leave to appeal to the appeal hearing. We would also refuse leave to appeal. As leave to appeal is to be refused it follows that the appeal must be dismissed. In the circumstances it is not necessary to determine the second respondent's application in an appeal dated 22 May 2024. That application should be dismissed.

Background[1]

[1] What follows at [4] - [15] is drawn from the decision of this court in an earlier interlocutory decision in this appeal, namely, McGeough v Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [2024] WASCA 59 [2] ‑ [9].

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 the Family Provision Act for provision out of the estate of their late mother. The second respondent acted as solicitor for Rory McGeough in the Family Provision Act proceedings. The third respondent acted as counsel for Rory McGeough.
The appellant's claim was dismissed.[2] Rory McGeough's claim was successful. The primary judge (Smith J) determined that the provision made for Rory McGeough under the deceased's will should be increased to $150,000.[3] 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.[4] 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.[5]
[2] McGeough v Blatchford as administrator of the estate of Margaret Mary McGeough [2019] WASC 454 [134].
[3] McGeough v Blatchfordas administrator of the estate of Margaret Mary McGeough [2019] WASC 454 [165].
[4] McGeough v Blatchford as administrator of the estate of Margaret Mary McGeough [2019] WASC 454 [5].
[5] McGeough v Blatchfordas administrator of the estate of Margaret Mary McGeough [2019] WASC 454 [6], [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.[6]
[6] McGeough v Blatchfordas administrator of the estate of Margaret Mary McGeough [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. This court dismissed the appeal.[7] The High Court of Australia subsequently refused the appellant's application for special leave to appeal against this court's decision.[8]
[7] McGeough v Blatchfordas administrator of the estate of Margaret Mary McGeough [2021] WASCA 169 [9].
[8] McGeough v Blatchfordas administrator of the estate of Margaret Mary McGeough [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. Broadly speaking, the complaint was found by the State Administrative Tribunal to concern, among other things, knowingly putting forward 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.[9]
[9] McGeough and Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [2023] WASAT 119 [42].
More specifically, the Tribunal described the 'essence' of the complaint as:
1.[T]he 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 [appellant'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.[10]
[10] McGeough and Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [2023] WASAT 119 [42].
The appellant's complaint was dealt with under the provisions of the Legal Profession Act 2008 (WA) as were then in force.
On 11 April 2022 the first respondent dismissed the appellant's complaint under s 415(1)(b) of the Legal Profession Act on the ground that it was misconceived and lacking in substance.[11] On 26 April 2022 the appellant applied to the Tribunal for a review of the first respondent's decision to dismiss his complaint to the Committee.[12] That right of review was provided for by s 435(1) of the Legal Profession Act.
[11] McGeough and Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [2023] WASAT 119 [4], [10].
[12] McGeough and Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [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 Tribunal found that the complaints made by the appellant as to the conduct of the second and third respondent were 'the same as those' which were made to the primary judge in the Family Provision Act proceedings and to the Court of Appeal in the appeal from those proceedings. The Tribunal held that '[t]here is nothing new in the material before us'.[13]
[13] McGeough and Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [2023] WASAT 119 [50].
The Tribunal observed that the appellant had the opportunity to, and did, challenge Rory McGeough's evidence at the trial of the Family Provision Act proceedings. The Tribunal stated that the fact that Smith J formed a different view of that evidence to that which was contended for by the appellant - a view held on appeal to be 'reasonably open' to her Honour - did not mean that the second and third respondents did anything which could be said to amount to unsatisfactory professional conduct or professional misconduct.[14] The Tribunal stated that, were such allegations to be made out, it would need to be satisfied that the second and third respondents knowingly or recklessly advanced a case which they knew at the time was not true.[15] The Tribunal then referred to the terms of rule 34 and rule 36 of the Legal Profession Conduct Rules 2010 (WA).[16]
[14] McGeough and Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [2023] WASAT 119 [51].
[15] McGeough and Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [2023] WASAT 119 [52].
[16] McGeough and Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [2023] WASAT 119 [54] - [55].
The central rationale for the Tribunal's decision to dismiss the review proceedings was then expressed in the following terms:
Despite the voluminous material presented to us in this review application there is no evidence (ie no facts existing) which is sufficient to induce us to suspect that the [appellant'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 [appellant's] allegations about the second and third respondents amount to no more than bare assertions. At most the [appellant'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 [appellant's] complaint, on the basis that it is misconceived and lacking in substance was the correct decision [sic].[17] (emphasis added)
[17] McGeough and Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [2023] WASAT 119 [57] - [60].
We have difficulty in understanding the second of the italicised passages in par 2 reproduced immediately above. The words 'and which the trial judge weighed and did not accept' do not make sense in context. The Tribunal might be saying 'but which the trial judge weighed and accepted'. That reading is consistent with what the Tribunal stated earlier at [51] of the Tribunal's reasons. Alternatively, as counsel for the second respondent suggested, the Tribunal might have intended to mean that the trial judge did not accept the appellant's disagreement with the evidence. The distinction is of little difference. Either way the Tribunal characterised the appellant's case as being that because there was evidence that the appellant sought to impugn (even though it was accepted by the trial judge) the second and third respondents must have advanced a case that they knew to be false or were recklessly indifferent to whether it was false.

The appeal to this court

On 28 December 2023 the appellant lodged an appeal notice seeking leave to appeal against the Tribunal's decision.
This court has previously accepted the following description of the appellant's grounds of appeal:
(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 [ie 2.1] 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 [ie 2.1] 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 [failing to enable inquiry into matters in dispute: ground 2.2] and 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.[18]
[18] McGeough v Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [2024] WASCA 59 [11].
Three initial points should be observed as to the grounds of appeal.
First, the grounds specified in [18](b) above are not concerned with the decision on 5 December 2023 the subject of the appeal. Rather, they are concerned with an earlier decision made on 7 December 2011 as to discovery of documents from the respondents. Second, the grounds specified in [18](c) above are similarly misdirected to an earlier procedural determination of the Tribunal, one that concerned a 7 February 2023 decision rejecting the appellant's application to require his brother and sister-in-law to produce certain financial and other records. Third, ground 6 as summarised at [18](f) above refers to 14 provisions within the State Administrative Tribunal Act 2004 (WA). The appellant alleges that the Tribunal misinterpreted those provisions but fails to identify where, if at all, such error appears in the Tribunal's reasons or otherwise affected the Tribunal's decision. In substance the appellant is suggesting that had the Tribunal made its decision conformably with the suggested correct construction he would have succeeded before the Tribunal. At first blush this is misconceived when regard is had to the nature of the provisions referred to in ground 6. For example, the first provision mentioned is s 11. The appellant's argument appears to be that in constituting the membership of the Tribunal for the purpose of determining the application there is nothing to show that consideration was given to the degree of the public importance and the complexity of the matter.
The respondents each filed notices of intention to appear in the appeal.
In April 2024 the third respondent sought an order that the appellant file security for his costs of the appeal. That application was allowed on 24 May 2024. The appellant was ordered to provide security for the third respondent's costs of the appeal in the amount of $15,000 by 4.00 pm on 28 June 2024.[19]
[19] McGeough v Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [2024] WASCA 59 [22].
The appellant did not comply with the order for security for costs. The third respondent sought an order that the appeal be dismissed for failure to comply with the order for security for costs. That application was allowed, in part, on 23 August 2024. This court ordered that the appeal be dismissed so far as it concerned the third respondent.[20]
[20] McGeough v Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [No 2] [2024] WASCA 103 [1], [11], [13], [15].

The matters now before the court

The second respondent filed an application in an appeal dated 22 May 2024. Among other things that application sought an order that the appellant pay $20,000 into court as security for the second respondent's costs of the appeal. The application was supported by an affidavit of D J Kirchner affirmed 22 May 2024.

The court made programming orders on the application for security for costs on 24 May 2024. Those orders were not complied with although the parties did file a further affidavit of D J Kirchner affirmed 7 June 2024 in support of the application and an affidavit of J McGeough sworn 30 June 2024 in opposition to the application. The programming orders were varied by orders of the court made 23 August 2024. Since that time the second respondent has filed submissions dated 3 September 2024 in support of the application. Subsequently, without leave, the appellant purportedly filed an affidavit of J McGeough in opposition to the application.
The court received the affidavit of 24 September 2024 notwithstanding that it was filed without leave.
When the Court of Appeal registrar listed the second respondent's application for security for costs for hearing the registrar also gave the parties notice that the purpose of the hearing that had been listed was:
To consider and determine whether the court should revoke the order referring the question of leave to appeal to the hearing of the appeal.
If the order referring the question of leave to appeal is revoked, to consider and determine the application for leave to appeal.
Leave to appeal is required under s 105(1) of the State Administrative Tribunal Act. On 13 March 2024 a judge of appeal made an order that the application for leave to appeal be referred to the appeal hearing. However, that is an interlocutory order that may be revoked or varied by a further order of a single judge of appeal or the Court of Appeal.[21] The revocation or variation of an interlocutory order may be appropriate for the due and effective administration of justice pursuant to r 43(2)(kb)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA). In the present context that general power to revoke or vary an interlocutory order requires the court to consider whether it is in the interests of justice that the question of leave be dealt with separately in advance of the appeal hearing.[22]
[21] Thillagaratnam v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee[2024] WASCA 73 [31].
[22] Thillagaratnam v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [31].
In evaluating that issue, and also considering the question of leave to appeal, the court had before it the appellant's case dated 11 March 2024, the first respondent's answer dated 10 April 2024, the second respondent's substituted answer dated 28 May 2024 and the third respondent's answer dated 8 April 2024 (the first respondent relied on passages of the third respondent's answer in its answer). The court also received the parties' oral submissions directed to the question of leave to appeal. Also, in oral argument the second respondent relied on an affidavit sworn by the appellant on 18 April 2024.

Leave to appeal under s 105 of the State Administrative Tribunal Act

The principles concerning the grant of leave to appeal under s 105(1) of the State Administrative Tribunal Act were considered by this court in SH v Chief Executive Officer of Department of Communities[23] in terms that it is convenient to substantially reproduce below.
[23] SH v Chief Executive Officer of Department of Communities [2019] WASCA 31 [49] - [53].
A party may only appeal against a decision of the Tribunal if the court gives leave to appeal.
As this court recognised in Paridis v Settlement Agents Supervisory Board,[24] the power to grant leave is conferred in general terms and leave should be granted if, in all of the circumstances, it is in the interests of justice that there should be a grant of leave.
[24] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16].
While the ultimate issue is whether the grant of leave is in the interests of justice, Buss JA (as his Honour was then) in Paridis stated that, in considering whether to grant leave, regard should be had to the guidelines articulated by the court in Secretary to the Department of Premier and Cabinet v Hulls.[25] In Hulls, Phillips JA said:
When leave is sought to appeal … it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.[26]
[25] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331.
[26] Secretary to the Department of Premier and Cabinet v Hulls [16].
These guidelines are relevant. They are not, as Buss JA emphasised in Paridis, rigid or exhaustive. Whether leave is granted must depend upon the circumstances of each particular case. In this regard, the grant of leave should not be regarded as a perfunctory exercise. The legislative purpose in requiring the grant of leave is to reduce unnecessary appeals from decisions of the Tribunal.

Disposition - leave to appeal should be refused

Revocation of the order referring the question of leave to appeal to the appeal hearing

We are satisfied that it is in the interests of justice to deal with the question of leave separately and in advance of the hearing of the appeal.
Often it is a convenient course to refer the question of leave to the appeal hearing.[27] It means that there is a single contested hearing at which the court is assisted by full argument on all of the issues raised by the grounds of appeal. It should, however, be recognised that an appeal pursuant to s 105 of the State Administrative Tribunal Act can only be brought on a question of law. That makes consideration of whether there is sufficient doubt to justify the grant of leave more susceptible to determination without a full appeal hearing. For example, in the present matter this court has the appellant's case identifying the alleged legal errors in the Tribunal's decisions and the respondent's answers thereto. The court has also received the benefit of the parties' oral submissions.
[27] See eg Livingspring Pty Ltd v Kliger Partners [2008] VSCA 93; (2008) 20 VR 377 [5].
This court being in a position to determine the question of leave to appeal it is in the interests of justice that it do so. That course is consistent with the goal in, and will better ensure the attainment of the objects of, O 1 r 4A and r 4B(1)(b) - (f) of the Rules of the Supreme Court 1971 (WA).
Accordingly, we consider it is appropriate to revoke the order made 13 March 2024 referring the application for leave to appeal to the appeal hearing. In forming this view we observe that no party contended that we should not deal with the question of leave to appeal at this stage.
We turn then to the two primary considerations on the question of leave to appeal: first, whether the questions of law raised by the appellant's appeal demonstrate sufficient doubt about the Tribunal's decision to justify a grant of leave; second, assuming the Tribunal's decision to be tainted by legal error, whether substantial injustice would be occasioned in allowing the Tribunal's decision to go uncorrected. While it is convenient to evaluate the question of leave to appeal by these reference points it must be remembered that the ultimate touchstone remains the interests of justice.

Are the appellant's grounds of appeal reasonably arguable?

There is no merit in ground 1.
Section 60(2) of the State Administrative Tribunal Act allows the Tribunal to conduct a proceeding entirely on the basis of the documents without the parties participating in a hearing '[i]f the Tribunal thinks it appropriate'. The appellant sought an order to that effect at a directions hearing on 14 February 2023. Pritchard P made orders to that effect and the appellant confirmed that, from his perspective, the orders were 'okay'.[28] At a further directions hearing on 2 May 2023 Pritchard P again ordered, for the avoidance of doubt, that the proceedings be determined on the documents.[29] At the end of the directions hearing her Honour explained the effect of the orders. The hearing concluded with the appellant affirming that he was 'clear' as to the effect of the orders and without the appellant expressing any opposition to the order that the proceedings be determined entirely on the documents.[30]
[28] ts 6 - 7 (14/02/23).
[29] ts 25 - 26 (02/05/23).
[30] ts 26 (02/05/23).
The appellant was not denied procedural fairness by the Tribunal conducting the proceedings entirely on the basis of the documents when he sought that the Tribunal proceed in that way. That is all the more so where, as the Tribunal's reasons recorded, the appellant filed numerous bundles of documents, an affidavit dated 23 June 2023 and no fewer than seven sets of written submissions.[31] The appellant was afforded ample opportunity to present his case on the review proceedings.
[31] McGeough and Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [2023] WASAT 119 [27.1].
It is convenient to deal with grounds 2.1 and 5 together. These are concerned with the Tribunal's decisions of 7 December 2022 and 7 February 2023 rather than the Tribunal's final decision the subject of the appeal. In raising these matters it may be that the appellant seeks to invoke the principle that an interlocutory order which affects the final result can be challenged in an appeal against final judgment.[32] The difficulty is that the appellant has not sought to demonstrate that the dismissal of his applications on 7 December 2022 and 7 February 2023 affected the final result. When this was raised with the appellant at the hearing he submitted that had the applications been considered according to law and allowed he would have obtained additional disclosure and that might have affected the final result. That is no more than speculation. At the least the appellant needs to establish a realistic possibility that a different final decision could have been made had the disclosures sought been made. The appellant has not attempted to show how this might be the case. Grounds 2.1 and 5 cannot sustain a grant of leave to appeal.
[32] See Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 [5].
Ground 6 is also without merit. None of the alleged misconstructions of the State Administrative Tribunal Act are tethered to the Tribunal's reasons. Even if, which is doubtful, there is a basis for supposing that one or both of the first respondent or the Tribunal misconstrued their obligations under the Act in the way alleged in ground 6, the appellant does not demonstrate that such a failing impacted on the legal correctness of the Tribunal's decision in any way.
Grounds 2.2, 3 and 4 should be considered together. Viewed individually grounds 3 and 4 are not compelling. In terms of ground 3 the Tribunal exposes its reasoning process in its written reasons for decision as published. The reasons are legally adequate. In terms of ground 4, so far as it is alleged that the Tribunal ignored relevant material, the ground largely purports to challenge the merits of the Tribunal's fact finding. That is outside the scope of an appeal on a question of law. And, in both cases, the grounds are inappropriately couched by reference to an alleged denial of procedural farness. However, grounds 3 and 4 should be understood in the context of ground 2.2. Here the appellant alleges error by the Tribunal failing to carry out the necessary inquiry into the matters in dispute. Viewed collectively grounds 2.2, 3 and 4 raise, in substance, whether the Tribunal erred in law by failing to consider and determine the material issues raised by the appellant's case on the review application - in other words whether there was a constructive failure to exercise jurisdiction. So understood grounds 2.2, 3 and 4, viewed collectively, advance an appeal on a question of law.
The appellant developed the contention the subject of grounds 2.2, 3 and 4 in his oral submissions. The appellant submitted that:
1.In materials submitted in the Tribunal the appellant identified inconsistencies between the evidence that had become available (in part only in the Tribunal proceedings) and the evidence that was adduced at the trial of the Family Provision Act claim. The appellant relied in particular on a schedule headed 'Conflicting Affidavit Evidence Filed in the Court' which identified 34 alleged inconsistencies.[33]
2.The appellant's contention before the Tribunal was that the inconsistencies were such that it should be inferred that the second and third respondents knowingly or recklessly advanced a false case in the Family Provision Act claim.[34]
3.The Tribunal did not address that case. To the contrary the Tribunal proceeded on the incorrect premise that all of the material before the Tribunal had been before the trial judge in the Family Provision Act claim and the Court of Appeal in the appeal therefrom.
4.Because the Tribunal proceeded on that incorrect premise it did not review for itself whether the material relied on in the Tribunal might, or might arguably, have supported the inference that the appellant contended for. In this respect the appellant relied on par 2 of the passage of the Tribunal's reasons reproduced at [15] above.
[33] Affidavit of J McGeough sworn 17 April 2024 annexure 'D'.
[34] This, it should be said, is a large step. There were likely to be available competing inferences. It is not necessary for present purposes to consider the available competing inferences. All the more so it is not necessary to consider the merits of the appellant's contended for inference as against the available competing inferences.
The second respondent rejected this reading of the Tribunal's reasons. The second respondent said that the Tribunal was saying no more than that the evidence before the Tribunal was the 'same information' as that which had been before the trial judge in the Family Provision Act claim and the Court of Appeal in the appeal therefrom. There is support for that in the Tribunal's reasons at [50] so far as the Tribunal said '[t]here is nothing new in the material before us'. If that is correct then, at most, there was a factual error which could not ground an appeal on a question of law.
We acknowledge that there is considerable force in the second respondent's submission. The Tribunal's reasons should be read fairly and as a whole not scrutinised with a fine-tooth comb or an eye keenly attuned to the identification of error. Nonetheless, there is an arguable basis for the appellant's criticism of the Tribunal's approach to the review proceedings.
The Tribunal's dispositive reasoning is reproduced at [15] above. In par 2 thereof the Tribunal says that it has considered all the material filed in the proceedings. The Tribunal then says that '[i]t suffices to say that it was all considered by the trial judge in the Supreme Court proceedings and by the Court of Appeal in the appeal proceedings which followed' (emphasis added). The Tribunal then rejects the appellant's allegations - arguably on the faith of the consideration of the evidentiary materials by the trial judge and the Court of Appeal - as amounting to no more than 'bare assertions'. That might, arguably, be seen as the Tribunal relying on the trial judge's and Court of Appeal's review of the evidentiary materials rather than the Tribunal analysing for itself the materials and determining: (1) whether the alleged inconsistencies relied on by the appellant exist in fact; and (2) whether such inconsistencies as were found to have existed might, or might arguably, have supported an inference that the second and third respondents knowingly or recklessly advanced a false case in the Family Provision Act claim.
In the circumstances we consider the appellant's contention raised by grounds 2.2, 3 and 4 to be reasonably arguable. On an application for leave to appeal it is not necessary - and indeed would be inappropriate - to go any further as to the strength of the contention. It is enough that the appellant has demonstrated a real or significant argument to be put on the question of law advanced in relation to grounds 2.2, 3 and 4. There is, in this respect, 'sufficient doubt' as to the legal correctness of the Tribunal's decision.
The circumstance that one strand of the appellant's appeal is reasonably arguable does not alone warrant the grant of leave to appeal. The appellant must demonstrate that leave to appeal is in the interests of justice. To that end there must also be consideration of whether allowing any error on the part of the Tribunal to go uncorrected would impose substantial injustice.

Will substantial injustice be occasioned in allowing the Tribunal's decision to go uncorrected?

In submitting that there was an absence of substantial injustice in allowing the Tribunal's decision to go uncorrected, the first and second respondents relied on the decision of this court (differently constituted) in dismissing the appeal against the third respondent. There, in McGeough v Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [No 2], the court stated:
As was recently recognised in Thillagaratnam v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee, 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.[35]
[35] McGeough v Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [No 2] [2024] WASCA 103 [9].
Thillagaratnam is factually similar to the present case. There the appellant, Mr Thillagaratnam, was pursuing two separate appeals against decisions of the Tribunal in which complaints made under the Legal Profession Act had been dismissed and review proceedings in the Tribunal had been unsuccessful. The court refused leave to appeal. On the first appeal the court observed that the refusal of leave to appeal would not adversely affect any right, duty or liability of Mr Thillagaratnam.[36] He was characterised as merely being a person making a complaint to a regulatory authority who was dissatisfied by the response of the regulatory authority.[37] There was said to be no substantial injustice in leaving the Tribunal's decision undisturbed even if it were assumed to be incorrect.[38] Similar observations were made in the context of the second appeal.[39]
[36] Thillagaratnam v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [34].
[37] Thillagaratnam v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [34].
[38] Thillagaratnam v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [35].
[39] Thillagaratnam v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [49].
The High Court of Australia dismissed an application for special leave to appeal against the decision in Thillagaratnam.[40]
[40] Thillagaratnam v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [2024] HCASL 213.

The court raised with the appellant whether a refusal of leave to appeal would adversely affect any right, duty or liability which he enjoyed or to which he was subject. The appellant was also asked to identify what substantial injustice he would suffer if the Tribunal's decision was to go uncorrected. In responding the appellant referred to three matters. The appellant submitted:
1.A regulatory authority should perform its functions and carry out its duties - the appellant believed that the first respondent had not done so because it had dismissed his complaints rather than referring the second and third respondents' conduct to the Tribunal.
2.The appellant's financial interests had been adversely affected so far as his share of his deceased mother's estate had been used to pay Rory McGeough's legal fees.
3.The appellant had suffered reputational damage in that his siblings believed that he was a wrongdoer so far as he had defended the Family Provision Act proceedings against Rory McGeough's claim.
It ought to be accepted, as a general rule, that regulatory authorities should be encouraged to perform their functions and carry out their duties. But the general interest that all members of the community have in regulatory authorities faithfully performing their functions and carrying out their duties does not mean that there is any relevant right, duty or liability on the part of the appellant.
So too the appellant's concern based on his alleged financial interest in his deceased mother's estate is misplaced. An appeal against the Tribunal's decision could not reverse the costs orders of the Supreme Court and the Court of Appeal in relation to the Family Provision Act proceedings and the appeal therefrom. At the most a successful appeal would set aside the Tribunal's decision and require the Tribunal to reconsider the review application according to law. The Tribunal might then, if it upholds the review proceedings, set aside the decision to dismiss the appellant's complaint. The appellant's complaint would then need to be dealt with under pt 5.2 of the Legal Profession Uniform Law (WA).[41] This might in due course lead to a disciplinary matter under pt 5.4. That may result in possible disciplinary consequences for the legal practitioner involved. But even accepting that such a chain of events can no longer transpire as a result of the Tribunal's decision there is no identifiable right, duty or liability on the part of the appellant that is adversely affected by the refusal of leave to appeal.
[41] Legal Profession Uniform Law Application Act 2022 (WA) s 319(3)(c).
The same analysis is applicable to the appellant's complaint of reputational harm as concerns his siblings. That is not something that could be repaired through an appeal to this court against the Tribunal's decision.
The appellant has not identified that he has any right, duty or liability that will be adversely affected by the refusal of leave to appeal. The appellant's position is relevantly indistinguishable from that of the appellant in Thillagaratnam. The appellant is a person who is dissatisfied by the response of a regulatory authority to a complaint made to that regulatory authority. There is, in the circumstances, no substantial injustice in leaving the Tribunal's decision uncorrected even if it is assumed to be legally incorrect.
This conclusion will, in many cases, mean that an applicant for leave to appeal in the position of the appellant has not established that it is in the interests of justice that leave be granted. We say 'many cases' because there may be some cases, perhaps rare, where the interests of justice justify leave to appeal despite the applicant's lack of a relevant right, duty or liability that will be adversely affected by the refusal of leave to appeal. It might be, for example, that there is a point of principle of wider application to the regulation of the legal profession. Or it may be that the facts of the particular case bespeak the possibility of a substantial failure in the due administration of justice such as would necessitate this court's intervention so that the matter was sent back to the Tribunal for reconsideration. Neither possibility was raised in this case. Nor, on the facts, could leave to appeal be justified on either of these wider grounds. The appellant sought to justify leave to appeal by reference to his private interests as a complainant.
The appellant has not established that leave to appeal is in the interests of justice. The refusal of leave to appeal will not give rise to any substantial injustice even assuming the Tribunal's decision to be legally incorrect. Nor, on the facts, are we persuaded that there is some other justification for leave to appeal in the interests of justice even though the appellant has identified arguable legal error in the Tribunal's reasoning process.

Conclusion and orders

As we would, for the preceding reasons, refuse leave to appeal, there is no need to consider and determine the second respondent's application for security for costs. That application should be dismissed.
Subject to hearing from the parties as to the precise terms of the orders to give effect to these reasons, we would make orders to the following effect:
1.The order of the court made 13 March 2024 (ie the order to the effect that the application for leave to appeal be referred to the hearing of the appeal) is revoked.
2.The application for leave to appeal against the decision of the State Administrative Tribunal made 5 December 2023 in proceedings VR/26/2022 is dismissed.
3.The appeal against the decision of the State Administrative Tribunal made 5 December 2023 in proceedings VR/26/2022 is dismissed.
4.The second respondent's application in an appeal dated 22 May 2024 is dismissed.
The parties should be heard on any questions as to the costs of the appeal and the second respondent's application in an appeal dated 22 May 2024.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Hon Justice Vaughan
21 OCTOBER 2024