Metaxas v Legal Profession Complaints Committee [No 2]

[2019] WASCA 125

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   METAXAS -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [No 2] [2019] WASCA 125

CORAM:   MITCHELL JA

HEARD:   12 AUGUST 2019

DELIVERED          :   12 AUGUST 2019

PUBLISHED           :   22 AUGUST 2019

FILE NO/S:   CACV 84 of 2018

BETWEEN:   ARTHUR METAXAS

Appellant

AND

LEGAL PROFESSION COMPLAINTS COMMITTEE

Respondent

ON APPEAL FROM:

Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL

Coram:   JUSTICE J C CURTHOYS (PRESIDENT)

MS C WALLACE, SENIOR MEMBER

MR P DE VILLIERS, MEMBER

Citation: LEGAL PROFESSION COMPLAINTS COMMITTEE and METAXAS [2018] WASAT 28

File Number             :   VR 124 of 2017

Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL

Coram:   JUSTICE J C CURTHOYS (PRESIDENT)

MS C WALLACE, SENIOR MEMBER

MR P DE VILLIERS, MEMBER

Citation: LEGAL PROFESSION COMPLAINTS COMMITTEE and METAXAS [2018] WASAT 28 (S)

File Number             :   VR 124 of 2017

Catchwords:

Recusal application - Whether reasonable apprehension of bias

Legislation:

Nil

Result:

Application for recusal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	Mr A Metaxas
Respondent	:	Ms P E Cahill SC

Solicitors:

Appellant	:	Metaxas Legal
Respondent	:	Legal Profession Complaints Committee

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

Neil v Legal Profession Complaints Committee [No 2] [2017] WASCA 158

MITCHELL JA:

(This judgment was delivered extemporaneously on 12 August 2019 and has been edited from the transcript)

1. This is an appeal against decisions of the State Administrative Tribunal finding that the appellant engaged in professional misconduct, and ordering that he be publicly reprimanded and pay a fine of $24,000 (together with other ancillary orders).

2. I am dealing with an application that I recuse myself from further participation in this appeal on the basis that there is a reasonable apprehension of bias.  The test to be applied in determining that question is well established.  I set out the test in my reasons in Neil v Legal Profession Complaints Committee[No 2]:[1]

   The test to be applied in determining whether a judge should recuse himself or herself by reason of reasonable apprehension of bias is well established. A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. In applying this principle, it is necessary to identify what is said might lead the judge to decide a case other than on its legal or factual merits, and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[2]

   The appellant accepts that this is a correct statement of the applicable legal principle.

   [1] Neil v Legal Profession Complaints Committee[No 2] [2017] WASCA 158 [7].

   [2] See Ebner v Official Trustee (2000) 205 CLR 337 [6], [8]; Smits v Roach (2006) 227 CLR 423, [53] - [60].

3. The appellant takes issue with what I said at [6] in Neil, which concerned matters involving Mr Neil's past dealings with the Committee in relation to matters which were not the subject of Mr Neil's appeal.  I indicated that I had no recollection of dealing with any of those past matters, and that there was no suggestion that any of those matters were in any way concerned with the complaint being dealt with in that appeal.  What I said in [6] of Neil is simply not applicable to the present case, where there is no suggestion there have been any relevant prior dealings between Mr Metaxas and the Committee.

4. The matters which are the subject of the current appeal evidently came to the attention of the Committee after the decision of this court in 2015 and at that time I was not a member of the Committee.

5. The factual basis which is said gives rise to a reasonable apprehension of bias is my membership of the Legal Profession Complaints Committee from about 2007 until October 2014 when I was appointed to this court.  The appellant submits that, as a member of the Committee over that time, I will have formed relationships with other people sitting on, or working for, the Committee.  He submits that these relationships do not end on my appointment to this court.  He submits that it may be that, in my time at the Committee, I came to accept that the Committee's complaints were well-founded and that this gives rise to a reasonable apprehension of bias in this case.

6. I note that in this appeal there is no challenge to the propriety of the conduct of any member or officer of the Committee.  In that context, I see no basis on which it might be apprehended that any relationship I have with those persons might impact my assessment of the questions to be determined in the appeal.  In my view, the following observations I made in Neil are applicable to this case:[3]

   In my view, nothing in the fact that I was previously a member of the Board and Committee might lead a fair minded lay observer to apprehend that I might not bring an impartial mind to the resolution of the appellant’s grounds of appeal.  My association with those bodies ceased on my appointment to the court.  There is no reason for me to have any interest in whether the disciplinary applications subsequently instituted by the Committee should succeed or fail.  There is no logical connection between my past association with the Committee and Board and any feared deviation from the course of deciding the appeals on their legal and factual merits.

   A similar objection to a judge who was a former member of the Committee sitting in proceedings involving the Committee has been raised and rejected in other cases.[4]

   [3] Neil [8] - [9].

   [4] Neil v Legal Profession Complaints Committee [No 2] [2012] WASCA 150 [4], [9] and [13] (a case in which special leave was refused at [2013] HCASL 189 [6]) and cases there cited, as well as Lashansky v Legal Practice Board of Western Australia[No 3] [2013] WASCA 260 [10] - [15], [70] and [74].

7. There is a relatively long line of cases where membership of the Committee prior to appointment to the bench was argued to give rise to a reasonable apprehension of bias.  The argument was rejected in all of those cases, and I see no basis for distinguishing those cases from the present.

8. In all of the circumstances I am not satisfied that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions that I am required to decide in this appeal.  Therefore, I refuse the application that I recuse myself.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

ZMM
Research Associate/Orderly to the Honourable Justice Mitchell

22 AUGUST 2019