Mullally v Legal Practitioners Complaints Committee

[1998] HCATrans 380

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P56 of 1997

B e t w e e n -

PATRICK EDWARD MULLALLY

Applicant

and

THE LEGAL PRACTITIONERS COMPLAINTS COMMITTEE

Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 22 OCTOBER 1998, AT 2.25 PM

Copyright in the High Court of Australia

MR I.L.K. MARSHALL:  May it please your Honours, I appear for the applicant.  (instructed by Corser & Corser)

MR M.J. BUSS, QC:  May it please your Honours, with my learned friend, MR D. WALLACE, I appear for the respondent.  (instructed by Minter Ellison)

GAUDRON J:   Yes, Mr Marshall.

MR MARSHALL:   Your Honours, the way this application arises is because of the way section 31AA of the Legal Practitioners Act, the way it is being construed in this State, in the first instance by the Legal Practitioners’ Disciplinary Tribunal and by the Full Court of this State.  Our argument is that the construction of the legislation is far too narrow and what has flown from the narrow construction that has been put on it are the three special leave points.  Firstly, obviously, the question of construction, but also the question of perceived bias by the Tribunal and then the question of the natural justice point.

GAUDRON J:   Now, did you raise perceived bias in the Tribunal?

MR MARSHALL:   Yes, well, in the sense that it was made clear to the Chairman and you will see from the documentation, the Chairman, right from the start, made it clear that the practitioner could only mitigate and that he could not go into any matters other than mitigation, so it was raised to that extent.

KIRBY J:   But that is not the way you raise a suggestion that a judicial officer or quasi judicial officer is affected by bias or prejudgment.  That has to be done very clearly.

MR MARSHALL:   I did not ask him to disqualify himself.

KIRBY J:   Why should that not be taken to be a waiver, given that this Court has said you may waive.  I mean, in the Court of Appeal at New South Wales I suggested you could not waive because it is the public’s right to an independent, but this Court in a number of cases has held that you can and that is the current doctrine, so that if you can waive it, you have waived it.

MR MARSHALL:   How it came about is ‑ ‑ ‑

KIRBY J:   I think we know how it came about and we know the basis of your objection but if you do not raise it, it really is a bit late in the day to be coming along and objecting now.

MR MARSHALL:   Well, we have embarked on the proceedings.

KIRBY J:   You say you have got a Tribunal infected by bias, you have to take that point immediately it appears to you or as soon as reasonably practicable after you become aware of the point.

MR MARSHALL:   Certainly, we ‑ ‑ ‑

KIRBY J:   This is because Mr Brinsden wrote a letter in which he expressed a view concerning the meaning of the section.

MR MARSHALL:   We do not really need the letter although the letter makes it quite clear what his attitude was.

KIRBY J:   If his view of the meaning is what the section clearly means, then there is no real foundation for objecting to meaning.

MR MARSHALL:   The letter, we do not ‑ ‑ ‑

KIRBY J:   What page is the letter?  Where do we find the letter?

MR MARSHALL:   It is in the additional material.

KIRBY J:   It was said to be annexed to the submissions.

MR MARSHALL:   It is to be found at the third last page of the additional material, the letter of 22 August 1996 to another practitioner from the Chairman.

KIRBY J:   Now, if that view is correct, that is to say if the view that Mr Brinsden took of the section is the correct view, then that is not bias, that is merely a statement to the ‑ ‑ ‑

MR MARSHALL:   No.

KIRBY J:   We have really jumped your first point.  Your first point is, it seems to me, given your problems with having not raised the issue and taken objection, you are either going to get special leave on the first point or you are not going to get it.

MR MARSHALL:   Yes.  I think, with respect, that must be right.  What I am saying is that that was his construction.  That, indeed, was the Full Court’s construction.

KIRBY J:   Let us address the meaning of the section.

MR MARSHALL:   Yes.

KIRBY J:   In so far as that is concerned, given the ministerial statement which has been placed before the Full Court, given the object of the Parliament, it would seem at least strongly arguable that the Tribunal and the Full Court have got it right but in any case the Tribunal appears to have allowed that the word “may” gave it a discretion to allow it to permit you to call further material and it declined to allow it so that is just a discretionary question.

MR MARSHALL:   What happened was that the Tribunal restricted the process to simply making a plea in mitigation.  It did not allow the calling of the witness, Sossi, and that letter from Mr Sossi is, again, in the additional material and his testimony bore out the testimony of the applicant, namely that at no stage – it was the last page of the supplementary documents, your Honours, and just looking at a letter dated 10 March 1997, that date was four days before the disciplinary hearing and you will see in the last paragraph and, in particular, the last three lines of that:

I then saw Mr Frisina go back to him –

that is, Mr O’Donnell –

and a few minutes later this man drove away in his vehicle.  Shortly after that I left with Mr Mullally and we drove away in my car.  At no time did Mr Mullally speak to Mr O’Donnell.

That is what the applicant was maintaining and the charge, you will recall, is a false pretences charge so there had to be a representation to O’Donnell that the property, namely a grader, was unencumbered.  I was prohibited or precluded from – the ruling was and, at page 26, your Honours can see at line 10 where I said:

I had intended to call Mr Mullally and Mr Sossi and I will go on to mitigation in due course.

That letter was put in for the record but if one looks at, as your Honours no doubt have, all the material from the Chairman beginning at page 20 when, as counsel for the respondent was putting in a considerable amount of material, the indictment and matters of that nature, you will see an account of the material that was put in by the counsel for the respondent at page 64 of the book.  There is a list of what was put in and it included the indictment, opening address of counsel, the trial judge’s charge to the jury, calendar of prisoners, the trial judge’s sentencing remarks and the reasons for decision of the Court of Criminal Appeal.  All those went in and then the Chairman at line 25 said to counsel:

You also rely on the new section, do you not?
MR WALLACE:  Yes.
THE CHAIRMAN:  Section 31AA –

so it is brought to the fore by the Chairman and then at page 21, I said:

I will simply be calling –

Mr Mullally –

in support of his answer –

because the process is by way of a reference which your Honours will have seen at page 2 dated 21 October 1994.  The procedure for the Tribunal is that there be a reference and that reference is essentially what was count (2) on the indictment, the false pretence.

This was a case, you will have seen, where there were four counts on the indictment.  One was not proceeded with.  There were three others.  There were convictions at trial on all three.  Thereafter there was an appeal to the Court of Criminal Appeal and the only count remaining after that was count (2), the false pretence in relation to that grader.      At all times the Chairman of the Tribunal made it quite clear that section 31AA – it was just really a question of hearing in mitigation the ‑ ‑ ‑

GAUDRON J:   Yes, well it was open to the Tribunal to conclude either that that was all that was permitted, alternatively that that is all that it would permit in the circumstances, is it not, as a matter of plain interpretation?

MR MARSHALL:   Counsel decided to rely on the documentary material and 31AA rather than to call any evidence.  When I say rather than call any evidence, it is a testimony of witnesses because our point is that what has happened here is my client has been prejudiced in that he has not been able to give evidence on the merits, call Mr Sossi ‑ ‑ ‑

GAUDRON J:   He has not been able to challenge his conviction.

MR MARSHALL:   He was maintaining that he was not guilty of the offence.  That is absolutely right and what he relies on is Mr Justice Fullagar in Ziems’ Case that it is permitted and, in particular, I am referring to page 288 of the report when his Honour says about point four:

Or must we look beyond the conviction, and endeavour to ascertain, as best we can on the material before us, the facts and circumstances of the particular case?  To my mind, there can be only one answer to these questions.  The conviction is not irrelevant -

GAUDRON J:   Yes, but how can you – that question does not arise here because section 31AA clearly provides that the Tribunal does not have to.

MR MARSHALL:   What the Tribunal, the section ‑ ‑ ‑

KIRBY J:   That was to remedy a mischief, that for the whole of the century lawyers had accepted that the conviction stood and argued from that point but then apparently it began that people began to want a retrial before the tribunal what had solemnly been decided in the highest court of the State.  That is essentially what you want to do.  You do not want to set aside the conviction that has been found by the Court of Criminal Appeal.  You do not want to run that gauntlet.  You allow that to stand and then you have a subordinate tribunal deciding and retrying the guilt of your client.  That is what 31AA is designed to prevent.

MR MARSHALL:   One of the problems that we have is that 31AA, in its terms, is permissive, 31AA(1)(b), because the scheme of the Act is that once a finding of illegal conduct is made then the Tribunal sends it on to the Full Court or exercises the other powers in section 29A.  What we are saying is that the law in WA is not such that simply because you have a conviction, therefore that is illegal conduct.  All you need do is come to the Tribunal and mitigate.  What we say is Ziems is as Mr Justice ‑ ‑ ‑

KIRBY J:   But Ziems states the common law before the Parliament of Western Australia went to an awful lot of trouble, in the light of mischief, to amend the law of this State to prevent retrials before the Tribunal of the issue which has been determined at the highest level in the court where they should be determined, namely the criminal courts.

MR MARSHALL:   If one takes away the common law right which has existed, one has to do it unequivocally and expressly and the law of Western Australia is ‑ ‑ ‑

GAUDRON J:   What is unequivocal or not expressed about 31AA(2)?

MR MARSHALL:   What is unequivocal about that is that it simply says that the Tribunal:

is not required to inquire as to the propriety of the conviction;

There is no mandatory duty.

KIRBY J:   It is not mandatory, but they are not required to inquire into it.  They have got it placed before them and they are not required to, as it were, retry it.

MR MARSHALL:   But where the Tribunal is faced with unequivocal evidence from proposed evidence from Mr Sossi, where the Tribunal is faced ‑ ‑ ‑

KIRBY J:   Was this fresh evidence in the sense that that term is used in a court of criminal appeal?  Could you approach the Court of Criminal Appeal and have the conviction set aside?

MR MARSHALL:   No, it was not fresh evidence in that sense.

KIRBY J:   Well, why should you be given a chance?  What a farce that makes of the legal system.  You have got a conviction affirmed by the highest court in the State and then you come to a subordinate tribunal and say, “I want to have this all reargued and redetermined there”.  I mean, it is extremely embarrassing for the Tribunal and that is what is section 31AA was designed to avoid.

MR MARSHALL:   Well, Sossi was an unwilling and a hostile witness at the time of the trial.  He, as you can see from the letter – the time of the trial was in April 1994.  By the time the matter came around in 1997 he was a willing witness and, what we say is yes, Mr Justice Fullagar got it absolutely right when he felt bound to examine the circumstances of the case in detail for himself.

GAUDRON J:   But he did not have section 31AA(2).

MR MARSHALL:   Yes, but 31AA(2)(a), my submission is that there is no unequivocal and clear removal of the common law right because all it does – it has just said it “is not required”, but where there was an answer which raised these matters, it was clear.

GAUDRON J:   Which raised what, the propriety of the convictions?

MR MARSHALL:   Yes, and where you have got a situation where the Court of Criminal Appeal itself, his Honour Mr Justice Kennedy acknowledged at page 159 of the appeal book in the judgment that there were what might be regarded as some unsatisfactory features in the trial.  Look, we have got a practitioner who has been under suspension for nearly five years and he goes down to this professional tribunal and is denied the chance to put his case and, in fact, probably that is overstating it a bit because following through the transcript he does later on say, “I did not do it” but the decision had been made, the decision had been made.  The Chairman had made it quite clear and I do not need to take you to all the references.  You will have read how the Chairman had made up his mind.  You will have read how the Chairman had a closed mind.

GAUDRON J:   Does it matter though?  If he did not have to and he was not going to, does it matter?

MR MARSHALL:   It does matter, in my respectful submission, and I rely on the common law right in Ziems because I am saying that the Tribunal cannot simply ‑ ‑ ‑

KIRBY J:   You latch on to the words “is not required”.  You say that if Parliament meant that they must not inquire it would have said, “shall not inquire into impropriety”.

MR MARSHALL:   Absolutely.

KIRBY J:   And that because it said it is not required you say there is a discretion, that as you tendered a document which raised an arguable case you should have had the opportunity of arguing or of persuading the Tribunal to exercise its discretion in this exceptional case.

MR MARSHALL:   Yes, and Justice Kennedy, he, I think, takes the view in his judgment that it is a discretionary matter.  He does not say in his ‑ ‑ ‑

KIRBY J:   Where does the Tribunal say it does not have a discretion, that it is bound, tied up, shackled?

MR MARSHALL:   When it says to me, “Do not – the question of an illegal conduct, there is going to be a finding of that, all you need do is speak in mitigation”.  That is when the Tribunal has said there is no discretion and it is obvious from reading what the Chairman has said at all times and he made it clear.  He had to remind the counsel for the respondent about 31AA, could not wait.  Right at the very start brought it to the fore and throughout, throughout made it quite clear that I was not going to be able to call Mr Mullally and Mr Sossi other than in mitigation.

Your Honour, I think I have made the point and your Honour, you certainly just cannot take away a common law right without there being an express intention by the Parliament and that section, 31AA(2)(a) is not such a section.  The law of Western Australia cannot be that if you are convicted of any offence and any offence includes anything from failing to vote to homicide, if you are convicted of any offence that you are guilty of illegal conduct and under section 29A, regardless of ‑ ‑ ‑

KIRBY J:   You say that if that had been the intention of Parliament it would have said “shall not inquire into”?

MR MARSHALL:   Yes, and other legislation, in medical legislation, for example, they can disqualify you if you are convicted of an indictable offence which carries three years imprisonment or something like that.  This is so wide and unfettered and what we are saying is the statute does not say if you have got a conviction it is illegal conduct and we do not need to know anything about the circumstances.  The common law right is squarely there and it is being eroded from and we say that, for a practitioner to be put in this position, a lot of interstate practitioners are on our roll, it is of national importance and we say that it is vital that this matter – we be given an opportunity ‑ ‑ ‑

KIRBY J:   I hope too many of the interstate practitioners have not been convicted of fraudulent representations.

MR MARSHALL:   No.

KIRBY J:   And that their conviction stands recorded, has been solemnly appealed to the Court of Criminal Appeal and upheld.  I hope there are not too many of them on your rolls.

MR MARSHALL:   No.  I do not know the answer to that but all I can say is that we seek this opportunity to argue the appeal in terms of the draft notice with the view of getting the matter sent back to the Tribunal to do its job according to law, because the job has not been done according to law and that is the fundamental matter.  Thank you.

GAUDRON J:   Thank you, Mr Marshall.  Yes, Mr Buss.

MR BUSS:   Thank you, your Honours.

KIRBY J:   Mr Buss, the matter that is concerning me is did the Tribunal misunderstand and misread 2(a) as “shall not inquire” as distinct from “is not required”.

MR BUSS:   No, it did not, your Honours.

KIRBY J:   Now, show us that that is so and I would, for my part, not want to hear any more.

MR BUSS:   Yes, very well.  Your Honours, the best way of illustrating that is to invite your Honours to turn to page 20 of the application book and after Mr Wallace, who appeared for the committee before the board had presented his case, the Chairman at line 35 turned to my learned friend and he simply said:

I will just call Mr Mullally.

The members of the Tribunal then conferred and the Chairman said:

Yes.  You are calling Mr Mullally.  Just explain how you propose to conduct the argument in favour of Mr Mullally if you would.

Mr Marshall then said:

Well, I will simply be calling him in support of his answer.

THE CHAIRMAN:  In other words, you’re saying that you can reopen the question of whether he is guilty or not.

MR MARSHALL:  What I’m saying is that this court can look at all the circumstances and this tribunal has to decide whether there is illegal conduct.

THE CHAIRMAN:  Well, he is found guilty of illegal conduct.  Why can’t we just operate under section 31AA?

MR MARSHALL: Well, I don’t think it’s as simple as that.

THE CHAIRMAN: Why not?

My learned friend said ‑ ‑ ‑

KIRBY J:   “Is simply permissive”.

MR BUSS:   It is simply permissive.

KIRBY J:   Then he asked:

Why shouldn’t we proceed -

so he is accepting that it is permissive and asking why they should not proceed under it.

MR BUSS:   That is right and Mr Marshall says:

Because from the evidence you will hear from Mr Mullally we say that you will not be able to.

Now, although my learned friend did not squarely come out and answer the Chairman’s question, plainly, in our submission, he was intending to attack in a collateral way the conviction that had been recorded and upheld by the Court of Criminal Appeal and then at the foot of page 21 at about line ‑ ‑ ‑

KIRBY J:   Just a moment.  It goes on:

The section doesn’t relieve the tribunal from going into –

it and he says:

No.  I would say that we would have to listen to anything that is to be put up in mitigation of the commission of the offence.

MR BUSS:   Yes, indeed.

KIRBY J:   Yes.

MR BUSS:   And my learned friend then says:

The situation as I understand it is that the tribunal is still obliged to look at all the circumstances, the circumstances as to how the conviction came about, and then ultimately make a decision.

THE CHAIRMAN:   That perhaps goes to the question of what penalty, if any, we should impose.

Then Mr Hasluck, at line 12, a member of the Tribunal, asks a question:

Mr Marshall, could I ask this question:  in addition to Mr Mullally do you have in mind to call Mr O’Donnell and any of the other witnesses that were at the trial?

As your Honours will recall, it was Mr O’Donnell’s evidence that Mr Mullally made the false representation and Mr Marshall says at line 15:

No.  I won’t be calling Mr O’Donnell.  There’s one possible other witness, a brief witness.

And then Mr Hasluck identifies the point by saying:

But is that not a factor which would weigh with this tribunal as to whether in the exercise of a power even permissive as to whether we had had the same opportunity as the jury and trial judge had had to see the situation in the whole.

KIRBY J:   That seems to accept that there is a discretion but that it would not be exercised in this case if all that was proposed was to call one brief witness which was, in effect, asking that the matter be reconsidered with the disadvantages that the Tribunal would have, so they are not saying they have no power to call the witness.

MR BUSS:   No.

KIRBY J:   They are exploring whether in the particular circumstances it would be apt in the course of calling one witness.

MR BUSS:   Indeed, your Honour.  Then my learned friend, Mr Marshall, refers to Ziems, a case which is plainly distinguishable, and I will come to Ziems in a little while if I need to.  Then the Chairman on page 23 at line 33 says:

As Mr Hasluck says if the practitioner is now going to give evidence and tell us that his version of the facts is correct and O’Donnell didn’t give a correct version we cannot decide that issue then.  We couldn’t accept his evidence without hearing O’Donnell and that gets us into retrying the case.

Then at the foot of the page the Chairman says:

I certainly accept he is entitled to put before us matters that might make us say, “Well, look, notwithstanding the conviction, in all the circumstances it shouldn’t be treated as a matter which indicates that he is unfit to practise.”

KIRBY J:   That seems to be what Ziems is saying.  That seems to be what Justice Fullagar is saying in Ziems.  Am I wrong there?

MR BUSS:   No, no.

KIRBY J:   You have got to look to the detail, that you cannot just take the face of the conviction.

MR BUSS:   That is exactly right, your Honour.  Not only was there no section 31AA but, in essence, the circumstances underlying the conviction were explored in Ziems as to whether or not the practitioner ought to be struck off or not.

KIRBY J:   He was in a motor vehicle, he was drinking, driving or something and there were mitigating circumstances.

MR BUSS:   That is right.  There was a fight with a drunken sailor and, in essence, that precise course of action was available to Mullally before the Tribunal.

KIRBY J:   Did the Full Court recognise that there was a discretion of this kind or did they leave that matter open?

MR BUSS:   They, in essence, did not squarely decide the question but what they did say was that on the basis that there is a discretion then the discretion was properly exercised and there was no basis for attacking it.

KIRBY J:   Where is that most clearly said?

MR BUSS:   On page 156 in the context of dealing with ground 1 and it carries over to page 157.

KIRBY J:   Is there any equivalent to section 31AA in other jurisdictions of Australia or not?

MR BUSS:   Not to our knowledge, your Honour, no there is not.

KIRBY J:   The problem is a common one, as I pointed out in the Court of Appeal in New South Wales in Pangallo.

MR BUSS:   Indeed, your Honour did, and a passage from your Honour’s judgment was set out in Justice Kennedy’s judgment.  The real difficulty for the applicant, we say, is this, that the public policy considerations that led to the introduction of this section are clearly set out in the Minister’s second reading speech.  They were referred to in your Honour Justice Kirby’s judgment in Pangallo and, of course, Mullally has not made application for special leave to appeal to this Court against his conviction, nor has he sought to petition the Attorney-General for the exercise of the royal prerogative of mercy which he could do under section 140 of the Sentencing Act.

KIRBY J:   If he has a witness now who is a witness who was not available to him before because of some unwillingness, would that not be a basis to approach the Court of Criminal Appeal in this State to reopen the matter.  It may not succeed but, it would seem to me, at least arguably to be fresh evidence.  That would then allow the thing to be dealt with in the proper venue, not in a tribunal.

MR BUSS:   He could proceed, perhaps, in two ways:  one, by approaching the Attorney-General under section 140 of the Sentencing Act.  The alternative, in our submission, if he were to endeavour to bring the matter back before the Court of Criminal Appeal, he would need to show that there is some fundamental factor which vitiated the whole trial process and which could not, by the use of reasonable endeavours, have been brought before the Court of Criminal Appeal on the first occasion.

In this instance, of course, the Tribunal was not even given the opportunity, was not told that there was fresh evidence, because my learned friend simply said in an ambiguous way that there was one other possible brief witness and neither before the Tribunal ruled on the section 31AA point, nor in his answer to the reference, was any mention made that there was this new witness who could give evidence bearing on the point and that that is so is apparent from page 25 of the application book where the members of the Tribunal confer, that is noted at line 10, and the Chairman rules against my learned friend’s submission and it is not until the next page that reference is made to Mr Sossi.

In essence, my learned friend then says at pages 26 and 27, after having been ruled against, “You have ruled against me so I am not going to call Mr Mullally who would have said X, Y and Z and there was this other witness, Mr Sossi.”  The Tribunal were never ever given the benefit of being able to consider whether Mr Sossi might, in truth, be a person who could give fresh evidence.

GAUDRON J:   I think we do not need to trouble you further on that, Mr Buss.

MR BUSS:   Thank you, your Honour.

GAUDRON J:   In reply, Mr Marshall.

MR MARSHALL:   Thank you.  The Tribunal was well aware that Mr Sossi was going to be a witness and what he was going to say.  Secondly, the other material which reveals quite clearly that the Chairman saw it as a mandatory provision, that the provision of 31AA(2)(a) to be found at page 34 – I did not read it out before – line 20:

Yes, he can give his version of the story if he wishes.  We are receiving it only in mitigation, you see.  That’s the point we have been trying to make.

At page 29 at line 30:

THE CHAIRMAN:  We haven’t actually found that yet.

That is that he is guilty of illegal conduct.

We are foreshadowing it.

MR MARSHALL:   It has been indicated.

THE CHAIRMAN:   Yes.

At page 58 line 40:

THE CHAIRMAN:  There is obviously going to be a finding of illegal conduct so it’s really a question of what we do thereafter.  That is what we would like to hear you on I think.

At page 61, the Chairman, in delivering his short reasons says, at line 15:

In our opinion the matters raised by Mr Marshall on behalf of his client and by his client in his evidence are not of sufficient moment for us to look at that conviction –

et cetera.

KIRBY J:   That, together with what Mr Hasluck said at 22, speaking as a member of the Tribunal, rather reaffirms that the Tribunal accepted that in an exceptional case it might well be persuaded to permit some consideration to be given of the liability of the conviction but, in this case, they were not because all you offered was one witness and could that be a basis for disturbing a whole trial without consideration of the principal witness of the Crown against your client, Mr O’Donnell.

MR MARSHALL:   I would have thought that Mr Hasluck suggesting that I call Mr O’Donnell was simply not to the point.  I was simply calling evidence in support of the applicant.  Justice Kennedy, at 155 at the very top, he said:

If it be the position that the Tribunal may in exceptional cases inquire into the propriety of a conviction, this is not such a case.

He did raise the question – there was a discretion but, in my respectful submission, he was wrong to come to that conclusion and what is needed here is the matter to be put in accordance with an exercise of the common law rights that are there, that have been taken away from this practitioner.
They are my submissions, thank you.

GAUDRON J:   Yes, thank you, Mr Marshall.

The Court is of the opinion that there is no error to be discerned in the approach of the Full Court in this matter.  Accordingly, special leave is refused.

MR BUSS:   May it please your Honours, we would ask for an order for costs.

GAUDRON J:   Mr Marshall?

MR MARSHALL:   There would be no opposition to that.

GAUDRON J:   Yes, it is refused with costs.

AT 3.01 PM THE MATTER WAS CONCLUDED