Moore and A Solicitor
[2005] WASAT 322
•9 DECEMBER 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: LEGAL PRACTICE ACT 2003 (WA)
CITATION: MOORE and A SOLICITOR [2005] WASAT 322
MEMBER: JUSTICE M L BARKER (PRESIDENT)
HEARD: 18 OCTOBER 2005
DELIVERED : 9 DECEMBER 2005
FILE NO/S: VR 346 of 2005
BETWEEN: BRIAN GORDON MOORE
Applicant
AND
A SOLICITOR
Respondent
Catchwords:
Legal practitioner - No reference, finding or order by Legal Practitioners Complaints Committee against practitioner - Application for review under s 202 Legal Practice Act 2002 (WA) dismissed for want of jurisdiction
Legislation:
Legal Practice Act 2003 (WA), s 177, s 177(1), s 177(2), s 202
Result:
Application dismissed.
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: No appearance
By Leave: Ms P E Le Miere
Solicitors:
Applicant: Self-represented
Respondent: N/A
By Leave: Legal Practitioners Complaints Committee
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
In early 2004 the applicant made allegations of unprofessional conduct against a solicitor to the Legal Practitioners Complaints Committee.
In August 2005 the Complaints Committee advised the complainant that it had formed the view that the evidence did not reveal unprofessional conduct by the solicitor.
The complainant then lodged an application with the State Administrative Tribunal effectively to review the decision of the Complaints Committee. He named the practitioner as the respondent to his application.
The Tribunal found that it did not have jurisdiction to deal with the application. Section 202 of the Legal Practice Act 2003 (WA) only permits persons who are aggrieved by a (finding or order) of the Complaints Committee made under s 177 to seek review of that finding or order in the Tribunal. Because the Complaints Committee had not made any finding, order or reprimand, there was no basis upon which review could be sought in the Tribunal.
In these circumstances the Tribunal dismissed the application.
The issue
By an application received at the Tribunal on 9 September 2005, the applicant (Mr Moore) sought an order against the respondent who, at material times, was a solicitor. In his application Mr Moore made various allegations concerning the provision of inaccurate advice and the failure to ensure the discovery of a complete document in certain industrial proceedings.
In early 2004 Mr Moore had made allegations about these same matters to the Legal Practitioners Complaints Committee (Complaints Committee) pursuant to the Legal Practice Act 2003 (WA) as it then applied.
The Complaints Committee considered the matter and advised Mr Moore by letter dated 16 August 2005 that it had "formed the view that the evidence did not reveal unprofessional conduct" by the solicitor.
In the proceedings in this Tribunal, Mr Moore effectively wished to agitate the same complaint against the solicitor by seeking a review of the Complaints Committee's “decision”.
The issue raised by the application is whether the Tribunal has jurisdiction either to entertain an application made directly against a solicitor in these circumstances or to review the Complaints Committee's "decision".
The question of jurisdiction
Mr Moore purported to make his application under the Legal Practice Act 2003 s 202 for a review of the Complaints Committee's "decision".
Under the heading "Application for review" s 202 provides as follows:
"Any person aggrieved by a finding or order made by the Complaints Committee under s 177 may apply to the State Administrative Tribunal for a review of the finding or order."
What must be noted immediately about this entitlement of a person aggrieved to apply for review is that it is only in respect of a finding or order made by the Complaints Committee under s 177.
Section 177, under the heading "Summary professional jurisdiction", provides as follows:
"(1) The Complaints Committee has, and subject to the consent of the legal practitioner concerned may exercise, jurisdiction summarily to find, after an inquiry under this Part, that a legal practitioner is guilty of unsatisfactory conduct.
(2)If the Complaints Committee makes a finding under subsection (1) the Complaints Committee may ¾
(a)order the legal practitioner to pay to the Board a fine not exceeding $2 500;
(b)reprimand the legal practitioner;
(c)order that the legal practitioner seek and implement, within a period specified in the order, advice from the Board, or from a person specified in the order, in relation to the management and conduct of the practice, or the specific part or aspect of the practice, specified in the order;
(d)order that the legal practitioner, within such limits (if any) as may be fixed by the rules, reduce or refund any fees, charges or disbursements in respect of business to which the inquiry relates; or
(e)order that the legal practitioner pay all or any specific part of the costs of either or both the complainant or the Complaints Committee in relation to the inquiry.
(3)The Complaints Committee may take action under one or more of the paragraphs of subsection (2).
(4)An order may be made under subsection (2)(e) even where no finding is made under subsection (1) against the legal practitioner, if the Complaints Committee is of the opinion that the conduct of the legal practitioner gave reasonable cause for the inquiry.
(5)An order made by the Complaints Committee may be enforced in the same manner as an order of the State Administrative Tribunal made under this Act."
In this case, the Complaints Committee, by its letter dated 16 August 2005, advised Mr Moore that having considered his complaint against the solicitor, the Committee had formed the view that the evidence did not reveal unprofessional conduct and that therefore the matter should not be referred to the State Administrative Tribunal or dealt with by the Committee in its summary jurisdiction. The Complaints Committee did however resolve that the practitioner should be reminded of her obligation to ensure her clients give proper discovery.
It is clear, therefore, that the Complaints Committee did not make any finding under s 177(1) that the legal practitioner was guilty of unsatisfactory conduct. It is also clear, as a result, that the Complaints Committee did not make any order or reprimand under s 177(2).
It is only where a finding or order or reprimand has been made under s 177(1) or (2) that a "person aggrieved" may make an application for review of the Complaints Committee's decision under s 202. Put in context therefore the "person aggrieved" will usually be the legal practitioner affected by the finding, order or reprimand actually made by the Committee.
In any event, it is quite clear that s 202 does not provide a person in Mr Moore's position, who is unhappy with the failure of the Complaints Committee to make a finding or to make an order or reprimand, to seek review of that decision in the Tribunal.
There is no other provision in the Legal Practice Act 2003 which permits a person in Mr Moore's position to simply apply directly to the Tribunal for a finding, orders or reprimand against a legal practitioner.
It is clear enough that the Legal Practice Act 2003 as does much of the vocational regulatory legislation in Western Australia in relation to which this Tribunal has jurisdiction, establishes a scheme whereby members of the public who are concerned with the conduct of a registered person may apply to an official body - in this case the Complaints Committee - which has the primary responsibility of investigating a complaint and deciding whether it should be referred to the State Administrative Tribunal for hearing and determination (or in some cases dealt with summarily by that body).
It follows that in the particular context in which s 202 of the Legal Practice Act 2003 appears Mr Moore is not able to be considered an "aggrieved person".
As a result the Tribunal does not have jurisdiction to deal with Mr Moore's application and it should be dismissed.
Because the Tribunal does not have jurisdiction to deal with the matter and there is no finding of unprofessional conduct against her, it is not appropriate in the interests of justice that the solicitor's name be published in these proceedings.
Conclusion and order
For the reasons given above, the Tribunal does not have jurisdiction to deal with the application.
The Tribunal orders:
(a)The application dated 9 September 2005 is dismissed.
(b)The respondent's name is not to be published.
I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE M L BARKER, PRESIDENT
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