NEIL and LEGAL PROFESSION COMPLAINTS COMMITTEE - [2011] WASAT 43

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION: NEIL and LEGAL PROFESSION COMPLAINTS COMMITTEE [2011] WASAT 43

MEMBER: JUSTICE J A CHANEY (PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 16 MARCH 2011

FILE NO/S: VR 141 of 2009

BETWEEN: PETER CHRISTISON NEIL
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
PAUL HOPWOOD
Second Respondent
TIMOTHY COCKS
Third Respondent

Catchwords:

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

Legislation:

Corporations Act 2001 (Cth)
Criminal Code, s 132
Legal Profession Act 2008 (WA), s 435, s 435(2), s 589
State Administrative Tribunal Act 2004 (WA), s 31, s 47(1)(a)

Result:

Leave refused

Category: B

Representation:

Counsel:

Applicant:     Self-represented
First Respondent           :     Ms P Le Miere
Second Respondent       :     Self-represented
Third Respondent         :     Self-represented

Solicitors:

Applicant:
First Respondent           :     Law Complaints Officer
Second Respondent       :     N/A
Third Respondent         :     N/A

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

Neil and Legal Profession Complaints Committee [2011] WASAT 25
Wilson v Metaxas (1989) WAR 285

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Peter Neil sought leave to apply for a review of the dismissal by the Legal Profession Complaints Committee of a complaint about a solicitor Mr Timothy Cocks. The Legal Profession Complaints Committee found the complaints to be unreasonable.
The Tribunal reviewed the complaints to identify which related to Mr Cocks, and which to other practitioners. Having done so, it noted Mr Cocks' response to the complaints, which made it clear that he had no personal involvement in the conduct of Mr Neil's files other than in relation to the pursuit of outstanding costs.
The Tribunal concluded that the decision of the Legal Profession Complaints Committee was not attended with sufficient doubt to justify a grant of leave.

Introduction

On 5 August 2009, the Legal Profession Complaints Committee (Complaints Committee) dismissed complaints of unsatisfactory professional conduct against three legal practitioners. Two of the practitioners, Mr Timothy Cocks and Dr Patricia Saraceni were partners in the firm Cocks Macnish when that firm acted for Mr Neil in relation to litigation which Mr Neil was involved. Mr Hopwood was a solicitor employed by Cocks Macnish who worked on Mr Neil's files.
In relation to the complaint against Mr Cocks, the Complaints Committee made a specific finding that the complaints were unreasonable.
Mr Neil sought a review pursuant to s 435 of the Legal Profession Act 2008 (WA) (LP Act) of the Complaints Committee's decision to dismiss the complaints against Mr Cocks and Mr Hopwood. Mr Neil did not seek a review of the dismissal of the complaint against Dr Saraceni and advised the Tribunal that he had not in fact complained about Dr Saracini's conduct in any event. Because the Complaints Committee had found the complaint against Mr Cocks to be unreasonable, Mr Neil cannot apply for a review of that decision without leave of the Tribunal. At the directions hearing on 1 June 2010, the Tribunal directed that the issue of leave to commence proceedings against Mr Cocks should be dealt with on the papers. These reasons deal with that question of leave.

Test for the grant of leave

The test that has been adopted by the Tribunal for the grant of leave pursuant to s 435(2) of the LP Act is the test described in Wilson v Metaxas (1989) WAR 285. The criteria for the grant of leave are that:
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; and
2.In addition, that substantial injustice would be done by leaving the decision unreversed. What is substantial injustice must depend on all the circumstances of the case.

Mr Neil's interim application

Since the Tribunal directed that the question of leave be dealt with on the papers, a great deal of correspondence with lengthy attachments has been submitted by Mr Neil to the Tribunal. That correspondence includes an interim application:
•to refer the complaints against Mr Cocks back to the Complaints Committee pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) for further investigation and consideration;
• to refer the complaints to mediation; and
•for an order that the Complaints Committee report the suspected offences in relation to certain missing tape recordings to the police pursuant to s 589 of the LP Act.
Submissions in support of the interim applications make reference to allegations of a lack of procedural fairness having been extended by the Complaints Committee, reference to s 132 of the Criminal Code (WA), new allegations of a failure by Mr Cocks 'to provide new evidence to the Complaints Committee and the Tribunal' and 'new complaints of evidence against lawyers being not yet being put to the Complaints Committee'.
That correspondence demonstrates a lack of appreciation of the significance of the need for leave to apply to the Tribunal. Until leave is granted, Mr Neil has no right of review in relation to the decision so far as it concerns Mr Cocks. A referral back pursuant to s 31 of the SAT Act can be made 'at any stage of a proceeding for the review of a reviewable decision'. In the case of the decision relating to Mr Cocks, there is no proceeding for the review of the decision unless and until leave is granted. Nor does the Tribunal have any jurisdiction to enquire into any new allegation about Mr Cocks' conduct or new complaints about other lawyers (if that is what the interim application contemplates).
The interim application lodged by Mr Neil should be dismissed pursuant to s 47(1)(a) of the SAT Act on the basis that it is misconceived.

The decision in respect of which leave is sought

The decision the subject of review was conveyed to Mr Neil, through his agent, Ms Berryl Glasson, by letter dated 5 August 2009. That letter referred to the allegations against the three practitioners as being that:
• Junior practitioners were permitted to conduct work on the complainant's matters contrary to his instructions;
•The practitioners negligently failed to send (or alternatively failed to follow up on) an offer to withdraw a statutory demand on behalf of the complainant;
•The practitioners took insufficient action to compel disclosure of certain documents from the opposing parties;
•The practitioners failed to adequately respond to the complainant's enquiries and/or correspondence; and
•The practitioners failed to provide the complainant with costs disclosure as required by (then) Law Society of Western Australia Professional Conduct Rules 16A.
That summary was no doubt an attempt by the Complaints Committee to distil the contents of the voluminous communications sent to it by Ms Glasson on behalf of Mr Neil. The Complaints Committee's decision letter does not clearly identify which of those complaints are said to relate to Mr Cocks and which to the other practitioners. It is necessary to consider the email correspondence which commenced in April 2006 to identify the complaints specifically related to Mr Cocks.
By way of background, Cocks Macnish acted for Mr Neil in relation to litigation in both the Supreme Court of Western Australia and the Federal Court of Australia. The litigation was against a company known as Reward Insurance Ltd and some of its directors, including Mr Murray Nugent. The firm Jackson McDonald acted on instructions from Mr Stephen Walters, a partner in a firm of lawyers in Melbourne who acted for Reward Insurance and Mr Nugent. In the course of the Supreme Court litigation CIV 1157 of 2005 (the Reward litigation) Mr Neil obtained an order for production to him of various Reward Insurance documents. Mr Neil inspected a large volume of documents produced pursuant to that order, but became concerned that a number of documents had not been produced and that the defendants had thereby breached the order. Eventually, Mr Neil terminated Cocks Macnish's instructions because of the mounting costs of the Reward litigation.
In an email dated 13 April 2006, Ms Glasson complained that Mr Cocks had been putting Mr Neil under pressure to pay his outstanding accounts with Cocks Macnish. In the same email, a complaint was made that Mr Cocks should have rung the senior partner of Jackson McDonald, 'and complained about the failure to observe their duty to obey and uphold the law by ensuring all documents were provided for inspection pursuant to the Corporations Act 2001 (Cth) as well as under Master Sanderson's order of 1 March 2005'. Ms Glasson also complained about the conduct of Mr Walters in the same email.
By email dated 20 April 2006, (headed 'Complaint against solicitor Tim Cocks and Steven Walters') Ms Glasson complained that there had been a failure to obey Mr Neil's instructions in that Mr Neil had 'repeatedly requested over a long period of time that his files not be handled by a junior lawyer'.
There followed certain correspondence in relation to proposals by Cocks Macnish to resolve the question of Mr Neil's outstanding accounts. On 22 April 2006, Ms Glasson sent an email to the Complaints Committee stating that she wished to formalise her complaint against Mr Cocks on the basis that:
Mr Cocks has not done everything in his power to protect the interests of Mr Neil and has not conducted the case in a manner most advantageous to the client, see page 73, "Lawyers' Professional Responsibility in Australia and New Zealand"'.
He has allowed the opposite side to get away with an illegal "Scorched earth policy" against Mr Neil over inspection of Reward Insurance Limited documents and providing copies of missing Reward documents, which has probably rarely happened in Western Australia before.
On 23 April 2006, Ms Glasson sent an email to the Complaints Committee in which she said that 'Mr Neil does not recall … receiving from Cocks Macnish … a costs disclosure statement under rule 18 of the Law Society of Western Australia Professional Conduct Rules'.
By an email dated 4 May 2006, Ms Glasson repeated the complaint that a junior lawyer had been used contrary to Mr Neil's instructions, specifically in relation to a representation for an argument on a 'very serious conflict of interest issue at the Supreme Court instead of a very experienced solicitor Pat Saraceni who has about 20 years experience'.
There followed numerous communications from Ms Glasson with the Complaints Committee, which were focused principally upon complaints against the practitioners acting for the other parties to the litigation. The Complaints Committee's dismissal of those complaints was ultimately the subject of an application for leave in the Tribunal which is the subject of the decision in Neil and Legal Profession Complaints Committee [2011] WASAT 25.
Eventually, in July 2006, the legal officer handling the matter on behalf of the law complaints officer, Mr Jordan, wrote to Ms Glasson and endeavoured to summarise the complaint against Mr Cocks. He said that the complaint was in effect a complaint of failing to follow instructions that the affairs of Mr Neil were to be handled by a senior practitioner in the firm and not by a junior practitioner.
Because the legal officers handling of the matter on behalf of the Complainants Committee were unable to elicit a clear statement of the facts constituting the complaint about the various practitioners, the Complaints Committee was not called upon to consider the complaints for some considerable time. In December 2008, the Complaints Committee wrote to Ms Glasson seeking responses to questions initially posed by the Complaints Committee in December 2006, and from time to time thereafter. On 19 December 2008, Ms Glasson wrote to the Complaints Committee, reiterating that her complaint against Mr Cocks 'revolves around his duty at law as managing partner of Cocks Macnish to do all in his power to protect the interests of his client Peter Neil who has a chronic heart complaint'.
The letter continued:
I respectfully submit Tim Cocks did not do all in his power to protect Peter Neil's interests as regards the false and misleading affidavit of Murray Nugent dated 23 December 2004 sworn before Steven Walters in answer to the Statutory Demand issued by his firm Cocks Macnish, for Peter Neil's unpaid reward insurance director's fees.
That analysis of the correspondence suggest that the complaints directed against Mr Cocks were those summarised by the Complaints Committee by the first, third and fifth dot points set out in [12] above.

Mr Cocks' response

Eventually, the complaints were referred to Cocks Macnish for response, Mr Cocks responded on 23 March 2009. In that letter, Mr Cocks provided a background of his own involvement in Mr Neil's matters. He said that Mr Neil, in his capacity as inhouse counsel for a mining company, had been dealing with Dr Saraceni on an entirely different matter for some years prior to 2003. Mr Neil's initial approach to the firm was made to Dr Saraceni. He said that, by 2003, when Mr Neil instructed the firm, Dr Saraceni was a salaried partner of the firm with extensive litigation experience. He said that for many years she had had sole conduct of complex litigation matters, and was authorised to take instructions and open files on behalf of the firm. He said that he had no reason to object or intervene when Dr Saraceni opened Mr Neil's file.
Mr Cocks said that neither he, or any other partner of Cocks Macnish other than Dr Saraceni, had any control over the conduct of Mr Neil's file, and had no knowledge whatsoever of its day to day activity. All inward correspondence was directed to Dr Saraceni, and all outward correspondence was either drafted by Dr Saraceni or by other salaried solicitors under her instructions and supervision. Dr Saraceni took instructions from Mr Neil and provided advice to Mr Neil either directly or by supervising and settling the advice drafted by other solicitors. He said that she was not supervised by him or by any other partner of the firm. A review of the firm's billing documents revealed that Mr Cocks' initials appeared only twice, on 5 March 2004 in relation to the consideration of certain documents. Mr Cocks said that he now had no recollection of that work. He said that he had no recollection of any specific discussions with Dr Saraceni concerning the conduct of the matter other than in relation to the outstanding accounts.
Mr Cocks said that the only matters over which Dr Saraceni did not have control arose in relation to the payment of Mr Neil's accounts. He said that he oversaw that aspect of the matter and ultimately decided, on behalf of the firm, to discontinue acting for Mr Neil due to outstanding accounts.
Specifically, Mr Cocks rejected the complaints against him on the basis that he:
1.Did not assign any practitioners to work on the file, whether junior or otherwise. He had no knowledge of any instruction by Mr Neil that only Dr Saraceni was to perform work on the file.
2.He was unaware of the statutory demand referred to in the complaints.
3.He was unaware of any failure by Jackson McDonald's client to comply with discovery orders, but in any event would not have been obliged to take the matter up with a senior partner of Jackson McDonald. He said that if any such obligation arose, it would have been the responsibility of Dr Saraceni who had conduct of the matter. He added that, in any event, it appears that appropriate steps were taken by the firm in relation to the alleged failure to comply with discovery orders.
4.As Dr Saraceni had the sole conduct of the matter, it was she who was responsible for responding to Mr Neil. He said that to the best of his recollection, none of Mr Neil's queries were directed to him.
Mr Cocks then dealt at length with the substance of particular allegations made by Mr Neil (through Ms Glasson) in the correspondence based upon Mr Cocks' own review of the files.
By email dated 30 April 2009, Ms Glasson wrote to the Complaints Committee noting that Mr Cocks had not been asked to respond to the complaint that Cocks Macnish had not provided a disclosure statement under r 18 of the Law Society of Western Australia Professional Conduct Rules.
Mr Cocks replied to that further complaint on 4 June 2009. He advised that he understood that there was no formal costs disclosure agreement entered into. He pointed out that, since he did not have the conduct of the matter, it was not his responsibility to do so. In any event, he noted that Mr Neil was the inhouse lawyer for a company for which Cocks Macnish and Dr Saraceni had acted for many years before, so that Mr Neil was familiar with the firm's hourly rates and basis of charging.

The Complaints Committee's decision

The Complaints Committee finally considered Mr Neil's complaints against the lawyers within Cocks Macnish at its July 2009 meeting.
As to the complaint of permitting junior solicitors to act on the matter contrary to Mr Neil's instructions, the Complaints Committee noted that Mr Neil wrote to Dr Saraceni on 3 September 2005 requesting that junior solicitors no longer be permitted to work on his matters. It also noted that Dr Saraceni responded to the effect that that was neither practicable nor in his interests, noting that any work by a junior solicitor would be on directions and supervision of a partner. They found that response to be reasonable and appropriate.
The allegation of failing to send, or follow up on, an offer to withdraw a statutory demand did not appear to involve any allegation against Mr Cocks, and does not need to be considered further for the purposes of these reasons.
The third allegation was taking insufficient action to compel disclosure of documents from an opposing party. Ms Glasson asserted that Mr Cocks should have contacted the senior partner of Jackson McDonald to alert him to that firm's client's failure to hand over documents which Mr Neil maintained had been purposely withheld contrary to an order of the Court. The Complaints Committee noted that Mr Neil did not appear to have instructed Mr Cocks to contact Jackson McDonald, and in any event, Mr Cocks did not have conduct of the matter and had no reason to believe that it was necessary to take such action. Accordingly, the Complaints Committee was not persuaded that Mr Cocks (or for that matter the other practitioner's concern) took insufficient action to compel disclosure of the allegedly missing documents.
In relation to a complaint of failure to adequately respond to the complainant's enquiries or correspondence, the Complaints Committee noted that the complainant was a prolific correspondent, but had specifically instructed the firm to avoid unnecessary cost. The Complaints Committee noted that the complainant did not identify any specific correspondence or queries which had not been dealt with. It is unclear whether there was any complaint against Mr Cocks in this respect, but that would appear unlikely given that he had no personal conduct of the particular matters at the relevant time.
In relation to the allegation of a failure to make out of it a costs disclosure, the Complaints Committee noted that Mr Neil was a legal practitioner of considerable experience who regularly instructed the firm as part of his employment as inhouse counsel for a major prospecting company. The Complaints Committee found that Mr Neil was familiar with the firm's charge out rates and retainer terms for that reason, and would have known that legal actions he was instructing the firm to commence would be complex and contested.

Is decision wrong or attended with sufficient doubt to justify leave

There is nothing in the extensive materials submitted to the Tribunal which raises any doubt about Mr Cocks' assertion to the Complaints Committee that, except in respect to the question of costs recovery, Mr Cocks had no personal involvement in the conduct of files relating to Mr Neil. In various communications with the Tribunal, Mr Neil (or Ms Glasson on his behalf) asserts that Mr Cocks' involvement is demonstrated by the presence of his initials in the reference provided in certain correspondence. It is correct that the reference '0310151TC(PS:AC) (with occasional variations in the last two letters of that reference) appears on correspondence to and from Cocks Macnish in relation to Mr Neil's litigation. Whatever may be the system of file references, the presence of the initials 'TC' is, of itself, of little moment. Mr Neil does not, anywhere in the papers, suggest that he had any dealings whatsoever with Mr Cocks in relation to the litigation in question, save for the communications concerning Mr Neil's outstanding accounts from late 2004 onwards. Mr Neil describes Mr Cocks as 'the managing partner' and there is no reason to think that that description is inaccurate. The fact that Mr Cocks assumed responsibility in relation to the firm's unpaid bills is neither here nor there. It does not mean that he had any personal involvement in the conduct of the files. Mr Cocks denies that he did have any such involvement, and Mr Neil's contention appears to be based on the proposition that, as managing partner, he could have influenced the conduct of the files. There is no suggestion that Mr Neil ever sought to instruct Mr Cocks to do anything in relation to the Reward litigation. As Mr Cocks points out in his response to the Complaints Committee, the extensive and detailed timesheets provided to Mr Neil and to the Complaints Committee, demonstrate that Mr Cocks' only involvement in the conduct of the file related to 48 minutes of work in 2004 reviewing some unspecified documents.
In the absence of any personal involvement by Mr Cocks in the conduct of Mr Neil's files, there can be no basis for allegations of unsatisfactory professional conduct in doing, or failing to do, any of the matters considered by the Complaints Committee as being the subject of complaint.
I am unable to discern any basis upon which it might be said that the Complaints Committee's decision, so far as it relates to Mr Cocks, was wrong, or that its correctness is in doubt.
It follows that the first requirement for the grant of leave is not satisfied, and accordingly leave should be refused.

Orders

1.The application for leave to apply for a review of the decision of the Legal Profession Complaints Committee, so far as it relates to Mr Cocks, is refused.
2.The application so far as it relates to Mr Hopwood is listed for directions at 10:30 am on 3 May 2011.

I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION: NEIL and LEGAL PROFESSION COMPLAINTS COMMITTEE (No 2) [2011] WASAT 43

MEMBER: JUSTICE J A CHANEY (PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 16 MARCH 2011

SUPPLEMENTARY
DECISION :18 MAY 2011

FILE NO/S: VR 141 of 2009

BETWEEN: PETER CHRISTISON NEIL
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
PAUL HOPWOOD
Second Respondent

Catchwords:

Practice and procedure - Application that President disqualify himself - Apprehended bias - Previous decisions unfavourable to applicant

Legislation:

Legal Profession Act 2008 (WA), s 407(2)(a), s 435
State Administrative Tribunal Act 2004 (WA), s 27, s 31

Result:

Application for recusal dismissed

Category: B

Representation:

Counsel:

Applicant:     Self-represented
First Respondent           :     Ms P Le Miere
Second Respondent       :     Mr H Jackson

Solicitors:

Applicant:     Self-represented
First Respondent           :     Law Complaints Officer
Second Respondent       :     N/A

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

British American Tobacco Australia Services Ltd and Laurie [2011] HCA 2
Chin v Legal Practice Board (WA) [2011] WASCA 110
JRL; Ex parte CJL (1986) CLR 342
Neil and Legal Profession Complaints Committee [2010] WASAT 39
Neil and Legal Profession Complaints Committee [2011] WASAT 25
Neil and Legal Profession Complaints Committee [2011] WASAT 43
Neil v Legal Profession Complaints Committee [No 2] [2011] WASCA 66

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The application in these proceedings is for review of a decision of the Legal Profession Complaints Committee to dismiss Mr Neil's complaints about a legal practitioner, Mr Paul Hopwood.
Mr Peter Neil sought an interim order that the President of the Tribunal disqualify himself from the further hearing of Mr Neil's application on the basis of the existence of a perception of bias. Mr Neil also sought orders adjourning the further hearing of the application pending determination by the Legal Profession Complaints Committee of further complaints by Mr Neil against Mr Hopwood and another practitioner. Further, he sought an order pursuant to s 31 of the State Administrative Act 2004 (WA) referring the present matter back to the Legal Profession Complaints Committee for further investigation.
The perception of bias was said by the applicant to arise from previous decisions adverse to Mr Neil which had been delivered by the President concerning complaints against other legal practitioners. All of the other legal practitioners had been involved in some way with litigation concerning Mr Neil and a company called Reward Insurance Limited and the directors of that company.
The President examined his earlier decisions and findings, and concluded that the proper application of the principles applicable to disqualification on the ground of apprehended bias did not require him to disqualify himself from the further hearing of this application.
The President declined to adjourn the further hearing of the application indefinitely or to refer the matter back to the Legal Profession Complaints Committee on the basis that that course would not be consistent with the statutory objectives of the Tribunal, and refusal of those applications would work no unfairness to Mr Neil.

The application

The applicant, Mr Peter Neil, seeks an order that I disqualify myself from hearing this application 'owing to a prejudgment of issues and a perception of bias on the grounds set out in the High Court decision of British American Tobacco Australia Services Ltd and Laurie [2011] HCA 2' (BATAS v Laurie).
Mr Neil also sought orders adjourning the application indefinitely in view of the fact that the Legal Profession Complaints Committee (LPCC) was investigating further complaints made by him against the practitioners who are the respondents to these proceedings, and seeking to have the complaint the subject of these proceedings referred back to the LPCC for further investigation under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

The disqualification application

In its terms, the interim application lodged by Mr Neil relies upon 'a perception of bias' as the ground for disqualification. In his submissions to the Tribunal, Mr Neil explained that that perception arises from the findings as to his credibility, and in particular an earlier finding that a complaint made by him was vexatious. His submissions went somewhat further, and tended to suggest a concern of actual bias in that, he asserted, I was 'no longer neutral' in relation to his applications. Much of his oral submissions were directed to demonstrating that conclusions reached by the Tribunal in earlier decisions, and by the LPCC in relation to Mr Neil's complaints, were contrary to the evidence and thus wrong.
The principles to be applied in determining whether a judge is disqualified on the basis of bias were recently explained by Newnes JA in Chin v Legal Practice Board (WA) [2011] WASCA 110 (Chin) at [3] - [5] where his Honour said:
The test to be applied in determining whether, in a case like the present, a judge is disqualified by reason of the appearance of bias is whether a fairminded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 492. The plurality in that case pointed out (493) that in applying that test two things need to be remembered: the observer is taken to be reasonable, and the person being observed is a professional judge whose training, tradition and oath or affirmation require the judge to discard the irrelevant, the immaterial and the prejudicial.
In Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352, Mason J said that there may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he or she is likely to decide issues in a particular case adversely to one of the parties. But Mason J pointed out that this did not mean either that the judge will approach the issues in the case otherwise than with an impartial or unprejudiced mind in the sense in which that expression is used in the authorities, or that the judge's previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that the judge will approach the issues in that way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be firmly established. Those comments were indorsed in Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78, 86, by Brennan, Gaudron and McHugh JJ.
Where a party contends that actual bias exists, the applicant must show that the mind of the decision-maker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, 532 [72]. Actual bias will exist where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant: see Jia Legeng [36], [72]. Such an allegation must be 'distinctly made and clearly proved': Jia Legeng [69], [127].
Mr Neil made particular reference to the recent decision of the High Court in BATAS v Laurie and the principles explained in that case. Although BATAS v Laurie was decided by a majority, there does not appear to be any difference in the views of the Justices of the High Court as to the applicable principles, but rather only as to the application of those principles to the particular facts of the case. The principles as outlined in BATAS v Laurie reflect the principles explained by Newnes JA in Chin. BATAS v Laurie involved a claim by the widow of Mr Laurie for damages against BATAS. In her statement of claim, Mrs Laurie had alleged, amongst other things, that BATAS had a policy of destroying documents in its possession which might have evidenced its negligence. That allegation was made in support of a claim for aggregated damages. Judge Curtis was allocated to deal with pre-trial management and the trial of the action. An application was made for Judge Curtis to disqualify himself from further hearing the matter on the basis of an earlier determination by him in unrelated proceedings. In an interlocutory hearing in those other proceedings concerning discovery of documents, his Honour concluded the state of the evidence before him, that in 1985 BATAS had drafted or adopted a document retention policy for the purpose of a fraud. It was on the basis of that finding that BATAS sought to have Judge Curtis disqualify himself. By a majority of three to two, the High Court upheld BATAS' contention. In doing so, the majority said at [145]:
Whenever a judge is asked to try an issue which he or she has previously determined, whether in the same proceedings or in different proceedings, and whether between the same parties or different parties, the judge will be aware that different evidence may be led at the later trial. Judge Curtis's express acknowledgment of that circumstance does not remove the impression created by reading the judgment that the clear views there stated might influence his determination of the same issue in the Laurie proceedings. Allsop P's conclusion was correct. In addition to the possibility of the evidentiary position changing, a reasonable observer would note that the trial judge's finding of fraud was otherwise expressed without qualification or doubt, that it was based on actual persuasion of the correctness of that conclusion, that while the judge did not use violent language, he did express himself in terms indicating extreme scepticism about BATAS's denials and strong doubt about the possibility of different materials explaining the difficulties experienced by the judge, and that the nature of the fraud about which the judge had been persuaded was extremely serious. In the circumstances of this unusual case, a reasonable observer might possibly apprehend that at the trial the court might not move its mind from the position reached on one set of materials even if different materials were presented at the trial - that is, bring an impartial mind to the issues relating to the fraud finding. Johnson v Johnson¹⁸⁵ is distinguishable.
Mr Neil contends that the same conclusion should be reached in relation to my disqualification in this matter.
It is not enough to justify disqualification that I have delivered decisions adverse to Mr Neil in different proceedings or even in the present proceedings. Rather, it is necessary to examine findings made in those decisions to ascertain whether those findings might cause the hypothetical observer to conclude that I might not bring an impartial mind to the issues for determination in the present proceedings.
There are three published decisions which I have delivered concerning Mr Neil. Those decisions are:
1.Neil and Legal Profession Complaints Committee [2010] WASAT 39 (Kornacki);
2.Neil and Legal Profession Complaints Committee [2011] WASAT 25 (Skinner); and
3.Neil and Legal Profession Complaints Committee [2011] WASAT 43 (Cocks)
Kornacki concerned a question of leave pursuant to s 435 of the Legal Profession Act2008 (WA) (LP Act) to review a decision of the LPCC to dismiss a complaint which Mr Neil had made against a Victorian solicitor, Ms Kate Kornacki. The complaint made by Mr Neil was that Ms Kornacki had prepared an affidavit on behalf of a client which she knew, or ought to have known, contained false information. The client concerned was a Mr Murray Nugent, a director of Reward Insurance Limited, which had commenced bankruptcy proceedings against Mr Neil in the Federal Court.
The complaint was dismissed by the LPCC summarily on the basis that it lacked jurisdiction to deal with the allegations because the requirements of s 407(2)(a) of LP Act, which are prerequisites to the exercise of jurisdiction by the LPCC in relation to conduct occurring partly in this jurisdiction and partly in another jurisdiction, had not been met. That conclusion was upheld by me in Kornacki, and Mr Neil's appeal to the Court of Appeal against that decision has been dismissed: Neil v Legal Profession Complaints Committee [No2] [2011] WASCA 66.
The LPCC also concluded that Mr Neil's complaint in relation to Ms Kornacki was unreasonable and vexatious. It reached that conclusion because it considered there to be no reasonable basis for the complaint, and in particular there was no evidence that the practitioner knew or should have known that the affidavit contained false information. In the Kornacki decision at [46] - [49], I considered that issue, and concluded that the decision of the LPCC that the complaint against Ms Kornacki was unreasonable and vexatious had not been demonstrated to be wrong or attended by sufficient doubt to justify a grant of leave, even if the jurisdictional bar under s 407 of the LP Act did not exist.
At the hearing in this matter, Mr Neil placed considerable emphasis on that latter aspect of the Kornacki decision.
The Skinner decision concerned an application by Mr Neil for leave to review a decision of the LPCC dismissing complaints against two solicitors, Mr Skinner and Ms Bartlett. Ms Bartlett was a partner in the firm Jackson McDonald, and Mr Skinner was an employed solicitor in that firm. Jackson McDonald acted as Perth agents for Reward Insurance's Melbourne solicitors in relation to the litigation with Mr Neil. Leave was required because the complaints against one of the practitioners, Ms Saraceni had been found to be vexatious and unreasonable, and the complaints against the other two practitioners had been found to be unreasonable.
The decision involved an examination of the complaint against Mr Skinner and the responsibility of Ms Bartlett and Ms Saraceni in relation to Mr Skinner's conduct. In addressing the question of leave, I had regard to the apparent merits of the complaint and concluded that the complaints against Mr Skinner had no reasonable basis and were thus unreasonable. As the complaints against Ms Bartlett and Ms Saraceni were essentially of a failure to properly supervise or intervene in the conduct of Mr Skinner, they too were found to be unreasonable. In relation to Ms Saraceni, who I found to have had no personal knowledge of any of the matters the subject of complaint, or supervisory responsibility for them, I concluded that the complaint against her was misconceived and was both unreasonable and vexatious.
The Cocks decision was delivered in this matter. The complaints against Mr Cocks and Mr Hopwood were dealt with together by the LPCC. The LPCC dismissed the complaint against Mr Cocks as being unreasonable, but did not reach that conclusion in relation to the complaint against Mr Hopwood. Accordingly, leave to review the decision so far as it relates to Mr Cocks was required by s 435 of the LP Act. The Cocks decision concerned that application for leave. After examining the extensive materials filed in support of the application, I concluded that no basis had been disclosed upon which it might be said that the LPCC's decision, so far as it related to Mr Cocks, was wrong or that its correctness was in doubt, and therefore that the requirement for the grant of leave was not satisfied. Central to that conclusion was a finding that Mr Cocks had very little personal involvement in the conduct of the file, which had principally been handled by another partner of his firm and by Mr Hopwood, under that partner's supervision. The decision did not involve any examination of Mr Hopwood's conduct.

Is there a reasonable apprehension of bias?

As already observed, Mr Neil emphasised findings that other complaints made by him were found to be vexatious, and contends that those findings gave rise to an apprehension of bias.
In oral submission, he contended that he had been found to lack credibility and to be unreliable. All three previous decisions have concerned the question of leave. In accordance with the usual procedures of the Tribunal, those questions have been dealt with on the papers. It is not correct, therefore, to suggest that any of the decisions have involved questions of credibility or reliability of evidence. Rather they have proceeded, as is normal in leave applications, by reference to documentary materials, and the submissions of the parties on the question of leave.

It is correct that I have, in previous decisions, affirmed the LPCC's view that particular complaints by Mr Neil have been unreasonable, and in two cases, vexatious. Those conclusions have been reached after a detailed analysis of the particular allegations, and the materials related to those allegations. While it is true that all of these complaints arise in connection with the conduct of a suite of litigation between Mr Neil and Reward Insurance and its directors, each allegation against each practitioner necessarily requires consideration of particular conduct by the practitioner involved. It cannot be said that any conclusion or finding made by me in earlier decisions is a finding as to the issues arising in relation to the complaint against Mr Hopwood. The question of leave, including the question of whether a complaint is unreasonable or vexatious, does not arise in the complaint against Mr Hopwood. In that respect, this case can be distinguished from the BATAS decision.
In Chin, Newnes JA referred to JRL; Ex parte CJL (1986) CLR 342 at 352 where Mason J referred to the possibility that previous decisions of a judicial officer on issues of fact or law may generate an expectation that a particular case may be decided adversely to one of the parties. An example of such a situation is where the judicial officer may have reached a conclusion as to the proper construction of a statutory provision which is adverse to the construction contended for by one party. As Mason J observed, even in those cases, a reasonable apprehension that the issue will not be approached with an impartial and unprejudiced mind does not necessarily follow. But in my view, the previous decisions made in relation to Mr Neil's complaints against other practitioners do not fall in the category of cases referred to by Mason J. An examination of the reasons for decision delivered in each case reveals that consideration has been given to the particular allegations, and the facts disclosed on the materials related to those allegations, and a conclusion reached on the basis of that analysis. In my view, a reasonable observer would not conclude that the present matters of complaint would be dealt with other than by an impartial and unprejudiced approach to assessment of the particular complaints and the facts revealed on the materials before the Tribunal. It is not to the point that Mr Neil considers that the conclusions reached in earlier decisions were wrong. No factual issue has been identified in the present application concerning Mr Hopwood which has been the subject of any finding either of fact or law, in any earlier decision.
Accordingly, I do not consider that it is necessary, or appropriate, that I disqualify myself from further dealing with the present proceedings.

Adjournment or referral under s 31

I indicated at the hearing of the matter that I did not propose to accede to Mr Neil's application to adjourn the application against Mr Hopwood indefinitely, or to refer the matter back to the LPCC for further consideration. The reason for that conclusion is as follows.
Mr Neil has made a further complaint to the LPCC that Mr Cocks and Mr Hopwood, by their joint letter of 6 July 2009 which responded to the original complaints by Mr Neil about them, misled the LPCC. The misleading assertions are said to be as to when the firm ceased acting for Mr Neil, and when Mr Hopwood became aware of queries made by Mr Neil concerning the service date of an affidavit in proceedings in the Reward Insurance litigation. As I understand it, Mr Neil contends that that allegedly misleading information influenced the LPCC's decision, or at least was relevant to its determination of the original complaint.
Proceedings before this Tribunal for review of a decision are heard de novo - see SAT Act s 27. To the extent that the alleged misleading assertions are relevant to the determination of whether there is a reasonable likelihood of a finding against Mr Hopwood, it is open to Mr Neil to put forward arguments and materials to demonstrate the inaccuracy of the response to the complaint. It is not necessary for the LPCC to deal with Mr Neil's fresh complaint before the Tribunal determines the present complaint. Mr Hopwood, through his counsel, submitted that he wished to have the matters resolved quickly given the delays which have already occurred while the question of leave in relation to Mr Cocks was being dealt with. Mr Hopwood is entitled to have the complaints against him resolved without undue delay.
For those reasons, I did not consider it appropriate to further delay the resolution of the complaints concerning Mr Hopwood.
Nor do I consider that it is appropriate to refer the present complaint back to the LPCC for further consideration. The LPCC does not support that course of action. If the complaint were to be referred back to the LPCC, its function would be to determine whether there is a reasonable likelihood that Mr Hopwood would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct. If it concluded that there was no likelihood of a finding against Mr Hopwood, then these proceedings would simply continue. If it decided that there was a reasonable likelihood of a finding against Mr Hopwood, the complaint against him would be determined either by this Tribunal or by the LPCC in its summary jurisdiction. A right of review of any summary decision would exist to the Tribunal. There is, therefore, a distinct likelihood that, following reconsideration, one way or another, the Tribunal would be required then to determine the complaint. In practical terms, therefore, nothing but delay is to be gained by a referral back to the LPCC under s 31 of the SAT Act. That course is, therefore, not appropriate. There is no impediment to dealing with the complaint concerning Mr Hopwood without any resolution of the further complaints made by Mr Neil to the LPCC.

Orders

1.The respondent's application that the President of the Tribunal disqualify himself from further hearing the complaint concerning Mr Hopwood is dismissed.
2.The application for adjournment of the proceedings indefinitely, and for referral back to the Legal Profession Complaints Committee under s 31 of the State Administrative Tribunal Act 2004 (WA), is dismissed.

I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT