MCINTYRE and LEGAL PROFESSION COMPLAINTS COMMITTEE

Case •

[2012] WASAT 15

•

25 JANUARY 2012

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   VOCATIONAL REGULATION

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION:   MCINTYRE and LEGAL PROFESSION COMPLAINTS COMMITTEE [2012] WASAT 15

MEMBER:   JUSTICE J A CHANEY (PRESIDENT)

HEARD:   5 JULY 2011

DELIVERED          :   25 JANUARY 2012

FILE NO/S:   VR 34 of 2011

BETWEEN:   KIM MCINTYRE

First Applicant

RODNEY CROFT
Second Applicant

AND

LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent

ANDREW JOHN DAVIDSON
Second Respondent

Catchwords:

Legal Practitioners - Leave to apply for review of decision to dismiss complaints - Complaints found to be unreasonable and vexatious - Whether finding of unreasonableness was wrong or attended with sufficient doubt to justify grant of leave

Legislation:

Legal Profession Act 2008 (WA), s 435(1), s 435(2), s 435(2)(a)
Restraining Orders Act 1997 (WA), s 70
State Administrative Tribunal Act 2004 (WA), s 60(2)

Result:

The application for leave to seek a review is dismissed

Category:    B

Representation:

Counsel:

First Applicant             :     Self-represented

Second Applicant         :     Self-represented

First Respondent          :     Ms P Le Miere

Second Respondent      :     Mr S Vandongen SC

Solicitors:

First Applicant             :     N/A

Second Applicant         :     N/A

First Respondent          :     Law Complaints Officer

Second Respondent      :     Downings Legal

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

Wilson v Metaxis (1989) WAR 285

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

  1. Mr Kim McIntyre and Mr Rodney Croft each sought leave to apply for a review of decisions made by the Legal Profession Complaints Committee to dismiss complaints made against a legal practitioner Mr Andrew Davidson.  Mr Davidson had acted for the defendant, Mr Jim Kidd, in civil proceedings in which Mr McIntyre and Mr Croft were the plaintiffs.  The Legal Profession Complaints Committee found each of the complaints made by Mr McIntyre and Mr Croft to be unreasonable.

  2. The Tribunal examined the voluminous materials which had been before the Legal Profession Complaints Committee and the lengthy submissions made by Mr McIntyre and Mr Croft and considered the complaints against Mr Davidson.  It concluded that there was no basis for determining that the Complaints Committee's decision to dismiss the complaints made by Mr McIntyre and Mr Croft was wrong or attended with sufficient doubt to justify the grant of leave, and leave was refused.

Application for leave

  1. In November 2009, Mr Rodney Croft and Mr Kim McIntyre (the applicants) lodged complaints with the Legal Profession Complaints Committee (Complaints Committee) concerning the conduct of Mr Andrew Davidson in his capacity as representative of his client, Mr Jim Kidd, in Federal Court proceedings in which Mr Croft and Mr McIntyre, along with others, were the plaintiffs (the civil proceedings), and both in that capacity and his personal capacity, in proceedings in the Magistrates Court.  The substance of Mr Croft's complaint as identified by the Complaints Committee, was that:

    •Mr Davidson provided false or misleading evidence to the Court in an application for a violence restraining order (VRO) against Mr Croft; and

    •Mr Davidson engaged in conduct that was intended to delay the course of the litigation against Mr Kidd.

  2. The second aspect of Mr Croft's complaint was raised in almost identical terms by Mr McIntyre, and the Complaints Committee resolved to deal with the common aspects of the complaints together.  Mr McIntyre also alleged that Mr Davidson had informed Mr Carmady, Mr McIntyre's solicitor in the civil proceedings, that Mr McIntyre had been charged with a serious criminal offence and had done so in order to discredit him and to cause Mr Carmady to cease acting.

  3. On 7 February 2011, the Complaints Committee wrote separate letters to Mr McIntyre and Mr Croft, dismissing the complaints against Mr Davidson on the basis that they were vexatious and unreasonable pursuant to s 435(2)(a) of the Legal Profession Act 2008 (WA) (LP Act). On 4 March 2011, Mr McIntyre and Mr Croft filed an application for review with the Tribunal under s 435(1) of the LP Act. On 17 June 2011, the Tribunal ordered, subject to any further order, that the question of leave be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The Complaints Committee provided a s 24 bundle of documents and Mr McIntyre and Mr Croft each lodged submissions with lengthy volumes of supporting documents. On 18 July 2011, Mr Croft sent the Tribunal a copy of a letter to the Complaints Committee requesting that, 'in accordance with the Complaint's Committee statutory obligation to include all relevant material' that the Complaints Committee file additional documents, including a copy of the law complaints officer's report. On 28 July 2011, the Complaints Committee sent a letter to the Tribunal advising that they would comply with Mr Croft's request and on 2 August 2011, a supplementary s 24 bundle, comprising some 800 pages was filed.

Other matters of complaint

  1. Mr Croft's complaint to the Complaint's Committee and his submissions to the Tribunal, made reference to some matters that are not discussed in the Complaints Committee's letters of 7 February 2011.  I will return to those matters later.

Proper approach to leave

  1. The question of leave pursuant to s 435(2) of the LP Act is to be determined according to the principles outlined in Wilson v Metaxis (1989) WAR 285. In that case, the Full Supreme Court found that for leave to be granted:

    1)It must be shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave.

    2)In addition, that substantial injustice would be done by leaving the decision unreversed.  What is substantial injustice must depend on all of the circumstances of the case.

  2. The issue for determination in these proceedings is whether the Complaints Committee's findings are wrong, or attended with sufficient doubt as to justify a grant of leave, and if so, whether substantial injustice would be done by leaving the decision unreversed.

The civil proceedings

  1. The complaints made by the applicants against Mr Davidson arose out of a series of civil proceedings commenced by Nunagin Holdings Pty Ltd (Nunagin) (of which Mr McIntyre was a director), Mr Croft and his wife, and two other Jim Kidd Store licensees, against Mr Davidson's client, Mr Jim Kidd, and Mr Kidd's company, Evertop Investments.  Mr Croft and his wife were licensees of Jim Kidd stores in Willetton and Thornlie and Nunagin was the licensee of Jim Kidd, Albany.  The aggrieved licensees alleged that Mr Kidd engaged in misleading and deceptive conduct in regard to representations made about the conditions to be imposed upon licensees.

  2. In February 2009, Mr Davidson and Mr Kidd each made an application for an interim VRO against Mr Croft, in relation to threats allegedly made by Mr Croft on 17 February 2009, and later that day a VRO was granted.  At the final hearing on 31 July 2009, both VRO applications were dismissed.

Misleading the Court

  1. Mr Croft's complaint alleged that Mr Davidson provided misleading and/or false evidence in his application for a restraining order against Mr Croft, which was intended to discredit Mr Croft, delay the proceedings with Mr Kidd and increase costs unnecessarily.  The complaint to the Complaints Committee comprised ten pages of handwritten submissions and was accompanied by transcripts from hearings concerning the VRO dated 17 February 2009 and 31 July 2009.  Mr Croft's submissions pointed out perceived inconsistencies in the statements made by Mr Davidson on the two occasions, and requested that the Complaints Committee draw comparisons between the transcripts.

  2. On 23 December 2010, Mr Davidson wrote a letter of reply to the Complaints Committee (Mr Davidson's reply), requesting that Mr Croft be required to 'allege in clear and simple terms the alleged specific inconsistencies in the evidence,' as 'the complicated manner in which Mr Croft has outlined his complaints is such that the essential elements of each are difficult to identify and understand.'  No such amendment was made and Mr Croft's submissions filed on 25 May 2011 do not attempt to clarify his position.

  3. Mr Davidson's response dealt primarily with the allegation that he had misled the Court whilst giving evidence on 31 July 2009.  In his response to these allegations, Mr Davidson said:

    [I]t is not an easy matter to determine if Mr Croft is claiming that my evidence on 17 February 2009 or my evidence on 31 July 2009 was false, or both, and in which specific respect.

  4. The Tribunal agrees with that observation.  Mr Davidson's letter provides a chronology of events that supports the statements made by him on 17 February 2009 and on 31 July 2009.

  5. The Complaints Committee's conclusion was that:

    [O]n the allegation that the practitioner provided misleading and/or false evidence to the Court in the application for a restraining order, the Committee considered that the evidence identified by the complainant could not reasonably be regarded as misleading or false.

  6. The Committee noted that although the complainant clearly disagreed with the practitioner's evidence, the materials referenced in his supporting documents did not, on an objective reading, support the complainant's view that the evidence was false or misleading.

  7. The Tribunal agrees with this conclusion.

  8. For example, in his letter of complaint, Mr Croft sets out a series of exchanges between Mr Davidson and Mr Croft's counsel in the course of Mr Davidson's evidence at the hearing of the VRO on 31 July 2009.  The exchanges concerned the question of whether Mr Davidson felt threatened by Mr Croft's words.  Mr Davidson maintained that he did; counsel suggested that he did not.  Presumably the purpose of setting out that evidence was to establish the correctness of the proposition being put by counsel, and to suggest that Mr Davidson's denial of the proposition was false.  The passages do not achieve that purpose.

  9. There is no reasonable prospect that those passages could prove that Mr Davidson's state of mind was other than as he asserted.

  10. The same conclusion can be reached in relation to all of the passages referred to in Mr Croft's letter of complaint.  It is not necessary to set them all out in detail.  I might add that the particular point being made by Mr Croft about the various passages cited is by no means clear.

  11. On the material presented to the Tribunal, there is no reasonable prospect that the allegations made by Mr Croft that Mr Davidson misled the court might be made out.

Delay

  1. The second aspect of Mr Croft's complaint is that in acting for Mr Kidd, Mr Davidson caused delays to the proceedings for the purpose of avoiding document disclosure, increasing costs, and for other improper purposes.  Mr Croft's letter of 23 November 2009 does not provide any specific details as to the delay.  Mr McIntyre's complaint similarly alleges that Mr Davidson engaged in 'continuing tactics to delay this case unnecessarily to run me out of money so that we never get to trial'.

  2. In response to the complaints, Mr Davidson said that the issue of abuse of process was a matter for the court, that Mr Croft had raised his views regarding delay with both the Federal and District Courts, and that neither Court had indicated any agreement with him.  Mr Davidson also provided the Complaints Committee with a timeline relating to each of the matters in which he had acted for Mr Kidd with detailed clarification of the progression of the matters and the cause of the delay.  Mr Davidson claimed that Mr Croft had himself contributed significantly to the delay in several of the matters.

  3. The Complaints Committee considered the issue of delay to find that:

    The dispute between the parties was robustly prosecuted and defended by all parties, and that [Mr Croft and Mr Davidson] had the benefit of legal advice from highly capable advisers.  The Committee further noted that many of the allegations were brought to the attention of the various courts and were dealt with in the course of the litigation.  The Committee did not consider that the documents provided demonstrated that the practitioner had engaged in an abuse of process as alleged.

  4. There is no doubt that there were significant delays in the resolution of the main action.  Mr Croft did not provide the Tribunal with any material upon which the version of events presented in Mr Davidson's response should be questioned.  On this basis, I agree with the Complaints Committee's conclusion and find that there is no reasonable prospect that the Tribunal would find Mr Davidson guilty of unsatisfactory professional conduct or professional misconduct for engaging in an abuse of process in unfairly delaying the proceedings in which he represented Mr Kidd.

Improper conduct

  1. The second aspect of Mr McIntyre's complaint alleges that Mr Davidson attempted to further his client's case by unfair means by informing Mr McIntyre's solicitor, Mr Carmady, that Mr McIntyre had been charged with extortion.  Mr McIntyre claimed that Mr Davidson had disclosed this information in order to delay the proceedings with Mr Kidd and to 'discredit me with my lawyer in the hope that he would cease to represent me'.

  2. In response to the allegation, Mr Davidson said that he was informed on 8 January 2010 by his client, Mr Kidd, that Mr McIntyre had been charged with extortion.  Mr Kidd said that the charge arose from telephone conversations between Mr McIntyre and Mr Kidd on 5 and 12 June 2009 in which various statements were made by Mr McIntyre relating to the civil proceedings.  On 29 January 2010, Mr Kidd requested that Mr Davidson call Mr Carmady to inform him of the charge.  Mr Davidson said that he passed the information on to Mr Carmady, making it 'very clear' that this was done at the request of his client.  An undated note of the conversation confirming this version of events was annexed to Mr Davidson's response.  Mr Davidson's reply also said that he had acceded to his client's request as it was reasonable to presume that Mr Carmady would be instructed in relation to the extortion matter as the telephone conversations on 5 and 12 June 2009 had been made in the context of the civil proceedings.

  3. The Complaints Committee's finding on this issue is as follows:

    In respect of the allegation that the practitioner attempted to further his client's cause by unfair means, the Committee noted that the information provided to [Mr Carmady] by [Mr Davidson] was true (although there did appear to be conflicting evidence as to whether [Mr McIntyre] was charged in January or February), and that the charges arose directly from contact between the [Mr McIntyre] and Mr Kidd which was related to the actions. The Committee considered that the criminal charges were therefore relevant to the proceedings and did not consider [Mr Davidson]'s conduct in raising them with [Mr Carmady] to be improper. The Committee considered that the complaint was lacking in substance and should be summarily dismissed. The Committee also made a specific finding pursuant to section 435(2)(a) of the Act that the complaint was unreasonable in all the circumstances."

  4. In his submissions filed with the Tribunal on 31 May 2011, Mr McIntyre said that the Complaints Committee's finding was incorrect as he had provided the Complaints Committee with a copy of the summons which he says 'clearly establishes the fact that I was charged on 12 February 2010.  A Prosecution Notice with a date of issue of 12 February 2010 was provided to the Tribunal in the Complaints Committee's s 24 Bundle.  However, attached to Mr Davidson's response is an email dated 7 April 2010 to Mr Davidson from Detective Senior Constable Tony Walton which states that following a complaint by Mr Kidd, 'on 6th January 2010, Mr McIntyre was spoken to and charged with the offence' of attempted extortion.

  5. There is no reason to doubt Mr Davidson's assertion that he had been told by his client that Mr McIntyre had been charged, and that he was instructed to convey that information to Jackson McDonald.  It is reasonable to assume that Mr Kidd had information from the police, to whom he had made a complaint, as to the outcome of their investigations.  It is likely that he was told that Mr McIntyre had been, and was to be, charged.  That is consistent with what Detective Walton said in his email to Mr Davidson, and a prosecution notice was eventually issued.  It cannot be said, therefore, that there was no basis for the assertion made by Mr Davidson on or after 29 January 2010.

  6. Mr McIntyre contends that Mr Davidson should have made more enquiries to verify his client's instructions and that to fail to do so was unethical.  I do not accept that submission.  The communication to Jackson McDonald was made on instructions.  It related to issues arising in the litigation in respect of which Jackson McDonald was acting.  Jackson McDonald were obviously in a position to verify the information with Mr McIntyre.

  7. The Tribunal finds that there is no merit in the arguments raised by Mr McIntyre and agrees with the finding made by the Complaints Committee on this complaint.  The Tribunal finds that there is no reasonable prospect that Mr Davidson could be found guilty of unsatisfactory professional conduct or professional misconduct.

Consideration of other matters

  1. As mentioned above, some matters were the subject of complaint but do not appear to have been considered, or, if they were, were not mentioned in the Complaints Committee's letter of 7 February 2011.  For completeness, and notwithstanding the lack of clarity of the allegations, I will briefly deal with those matters.

  2. Referring to page 2 of the transcript of the Magistrates' Court proceedings on 31 July 2009, Mr Croft alleges that Mr Davidson misused s 70 of the Restraining Orders Act 1997 (WA) (RO Act) to 'put off' the final hearing of the VRO. He claims that the Magistrate said that 'this was not the correct use of s 70'. There is no reference to s 70 of the RO Act on page 2 of the transcript of the hearing on 31 July 2009. Further, s 70 of the RO Act, as at 31 July 2009, concerns 'information on identity of certain person restricted' and deals with the disclosure of information that would reveal the whereabouts of a party or person giving evidence in connection with the proceedings. Mr Croft does not explain the relevance of this section to the VRO application. There is no comprehensible basis for the complaint. In any event, the matter of whether or not a proceeding is to be adjourned is a matter for the Court.

  3. The complaint also alleged that Mr Davidson acted improperly in his dealings with lawyers at Jackson McDonald, who were, at the time, acting for Mr Croft.  Mr Croft claims that Mr Davidson created a false email address in Mr Croft's name, namely, '[email protected]', in order to send Jackson McDonald an email providing details of the threats made against Mr Davidson and Mr Kidd and saying 'in view of what Mr Croft has done, will Jackson McDonald continue to represent him'.  This email was said to have resulted in Jackson McDonald ceasing to represent to the Complaints Committee.  The email was not provided to the Complaints Committee or to the Tribunal in the supplementary materials filed on 25 November 2011.

  4. Mr Croft provided no evidentiary foundation for the allegation and on that basis there is no reasonable prospect that Mr Davidson would be found guilty of unsatisfactory professional conduct and professional misconduct in relation to that allegation.

Conclusion

  1. In my view, there is no reasonable likelihood that Mr Davidson would be found guilty of either unsatisfactory professional conduct or professional misconduct in relation to any of the matters raised by the complaints of Mr McIntyre or Mr Croft. The decision of the Committee to dismiss the complaints should be affirmed and the grant of leave should be refused.

Orders

1.The application for leave to seek a review of the decisions of the Legal Profession Complaints Committee, dated 7 February 2011 is dismissed.

I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUSTICE J A CHANEY, PRESIDENT

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