NEIL and LEGAL PROFESSION COMPLAINTS COMMITTEE - [2011] WASAT 25

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION: NEIL and LEGAL PROFESSION COMPLAINTS COMMITTEE [2011] WASAT 25

MEMBER: JUSTICE J A CHANEY (PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 14 FEBRUARY 2011

FILE NO/S: VR 140 of 2009

BETWEEN: PETER CHRISTISON NEIL
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
JUNE BARTLETT
Second Respondent
JULIUS SKINNER
Third Respondent
MARIA SARACENI
Fourth Respondent

Catchwords:

Professions - Legal practitioner - Leave to apply for review of Legal Profession Complaints Committee decision to dismiss complaint - Whether complaints unreasonable - Turns on own facts

Legislation:

Criminal Code, s 132
Legal Profession Act 2008 (WA), s 435(2)
State Administrative Tribunal Act 2004 (WA), s 24, s 31

Result:

Leave refused

Category: B

Representation:

Counsel:

Applicant:     Self-represented
First Respondent           :     Ms P Le Miere
Second Respondent       :     Self-represented
Third Respondent         :     Self-represented
Fourth Respondent        :     Mr R Hooker

Solicitors:

Applicant:     Self-represented
First Respondent           :     Law Complaints Officer
Second Respondent       :     Self-represented
Third Respondent         :     Self-represented
Fourth Respondent        :     Norton Rose

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

Amadio Pty Ltd v Henderson [1998] 81 FCR 149
Guss v Law Institute of Victoria Ltd [2006] VSCA 88
Neil and Legal Profession Complaints Committee [2010] WASAT 39
West Coast Clothing Co Pty Ltd v Freehill, Hollingdale and Page [1999] VSC 266

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Neil sought leave to apply for a review of a decision by the Legal Professional Complaints Committee to dismiss complaints against three practitioners. The Complaints Committee had found each of the complaints to be unreasonable. The solicitors involved had acted as Perth agents for a firm of solicitors in Melbourne. Their role included appearances in chambers for the defendants in a Supreme Court action in which Mr Neil was the plaintiff.
The Tribunal examined the role that the solicitors played in the action. It agreed with the Committee that the complaints by Mr Neil lacked any reasonable basis, and refused leave.

Issues for determination

These proceedings are one of a number of proceedings brought by Mr Neil seeking a review of decisions by the Legal Professional Complaints Committee (Complaints Committee) to dismiss his complaints of unsatisfactory professional conduct or professional misconduct against a number of different solicitors. The solicitors concerned in the present application are Ms June Bartlett, Mr Julius Skinner and Ms Maria Saraceni. In its decision concerning those complaints, the Complaints Committee concluded that the complaint against Ms Saraceni was vexatious and unreasonable, and that the complaints against Mr Skinner and Ms Bartlett were unreasonable. By reason of s 435(2) of the Legal Profession Act 2008 (LP Act) Mr Neil requires leave of the Tribunal to review the Complaints Committee's decision.
On 20 October 2009, the Tribunal ordered that, subject to any further order, the question of leave is to be dealt with on the papers. The parties were given the opportunity to file submissions by 18 December 2009. For a variety of reasons which it is not necessary to relate, the matter was not determined as contemplated by the orders made on 20 October 2009. At a further directions hearing held on 30 March 2010, Mr Neil indicated that he wishes to adduce oral evidence in relation to the question of leave, and accordingly submitted that the matter should not be dealt with on the papers. A direction was made that Mr Neil file and serve any application to adduce oral evidence setting out the identity of any witnesses he seeks to call and identifying how the evidence for each of those witnesses is relevant to the question of leave. An order was made that the application to set aside the direction that the matter be dealt with on the papers, and to call oral evidence, would be dealt with on the papers.
The issues which fall for determination in these reasons are therefore:
i)should the direction that the matter be dealt with on the papers be set aside so that Mr Neil can adduce oral evidence; and
ii)if not, should leave to seek review of the Committee's decision be granted.
On 26 July 2010, Mr Neil filed an interim application seeking an order referring the complaints back to the Complaints Committee pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) for further consideration and investigation, and for an order that the matter be referred to mediation. It is necessary to deal with those applications as well as the question of leave.

The complaints

Precise identification of the allegations against Ms Bartlett, Mr Skinner and Ms Saraceni is not easy. The Complaints Committee filed, in accordance with a direction of the Tribunal, a book of all relevant documents in its possession in relation to the matter, in accordance with s 24 of the SAT Act. Those documents comprise some 258 pages. They comprise of a number of lengthy emails containing numerous complaints against the three practitioners in these proceedings, and several other legal practitioners.
Mr Neil's complaints all arise out of some civil litigation in the Supreme Court of Western Australia between Mr Neil and a Mr Murray Nugent in relation to Reward Insurance Limited (Reward), a company with which both Mr Neil and Mr Nugent were at one time involved. At the relevant time, Ms Bartlett and Ms Maria Saraceni were partners of Jackson McDonald. Mr Skinner was an employed solicitor. One the actions brought by Mr Neil was matter CIV/1157 of 2005 in which Mr Neil was plaintiff, and the first to fourth defendants were respectively, Reward Property Group Pty Ltd, Reward MFI Pty Ltd, Murray Francis Nugent and William Szuch.
On 1 March 2005, an order was made by the Master granting injunctions against each of the defendants designed to enable the plaintiff and his solicitors access to certain company records of each of the first and second defendants. Mr Neil was represented by the firm Cocks Macnish. The defendants were represented by Jackson McDonald as Perth agents for Melbourne solicitors Walters & Associates. The terms of the order were as follows:
UPON THE APPLICATION of the Plaintiff by Motion dated 10 February 2005 and UPON HEARING Ms P Saraceni of Counsel for the Plaintiff and Mr J Skinner of Counsel for the Defendants and upon the Plaintiff undertaking to the Court that he will pay to any party restrained or effected by the restrains imposed by this interlocutory injunction or any interim continuation thereof, such compensation as the Court may in its discretion consider in the circumstances to be just, such compensation to be assessed by the Court in accordance with such directions as the Court may make and to be paid in such manner as the court may direct IT IS ORDERED THAT:
1.The First Defendant and its servants and agents be hereby restrained until further order of this Court from obstructing, preventing, hindering or in any way delaying or frustrating the exercise by the Plaintiff of his statutory rights:
(a)to have full and unfettered access to, and to make copies, whether personally or by his legal representatives, of all of the First Defendant's company books, records, and financial records, including but not limited to:
(i)Minutes of Board meetings;
(ii)Minutes of General meetings;
(iii)All contracts entered into;
(iv)All documents relating to the company's business operations;
(v)All company financial documents, including but not limited to Profit and Loss statements, Balance sheets and General Ledgers, expense sheets and the like;
(vi)All documents relating to the sale of the First Defendant's insurance business in or about late 2003 to early 2004;
(vii)All documents relating to the sale of Australian Home Warranty Pty Ltd and/or its insurance brokerage or agent's business to OAMPS and/or AIIL, or their related companies or entities;
(viii)All documents provided to APRA by or on behalf of the First Defendant in relation to the valuation of third party recoveries for the years 2001, 2002, 2003 and 2004;
(ix)All tape recordings and transcripts generated from such recordings of directors meetings;
(x)All facsimiles, letters, emails and other correspondence with, and all documents provided to, APRA, by or on behalf of the First Defendant;
(xi)All documents, directors meeting minutes, and correspondence relating to the First Defendant's execution of a mortgage over the First Defendant's property at Gawler, South Australia; and
(xii)All documents and correspondence relating to the entering of a contract of the First Defendant's property at Gawler, South Australia to entities associated with the Third Defendant;
pursuant to sections 198F(1) and 290 of the Corporations Act (2001); or in the alternative
(b)if the Plaintiff is found to have validly ceased to be a director of the First Defendant (which is denied), to have full and unfettered access to inspect and to make copies of all company books, records and financial records, including but not limited to those documents described in paragraph 1(a) above, pursuant to section 198F(2) of the Corporations Act (2001).
2.The Second Defendant and its servants and agents be hereby restrained until further order of this Court from obstructing, preventing, hindering or delaying the exercise of the Plaintiff's statutory right to have full and unfettered access to, and to make copies, whether personally or by his legal representatives, of all of the Second Defendant's company books, records, and financial records, including but not limited to the kinds of documents described in paragraph 1(a) above, pursuant to sections 198F(1) and 290 of the Corporations Act (2001); and
3.Messrs Cocks Macnish or their duly appointed agents in Victoria be permitted to inspect and copy the First and Second Defendant's financial records on behalf of the Plaintiff pursuant to section 290(2) of the Corporations Act (2001).
4.Each of the Third and Fourth Defendants, their respective servants and agents be hereby restrained until further order of this Court personally and in their capacities as directors of the First and Second Defendants, from obstructing, preventing, hindering or delaying the exercise of the Plaintiff's statutory rights described in paragraphs 1 and 2 above.
5.The First and Second Defendants to advise the Plaintiff in writing within 2 days from the date of this order where the books and records of the First and Second Defendants are held, and where they can be inspected and copied by the Plaintiff.
6.The costs of this Application be reserved.
7.There be liberty to apply.
8.Paragraphs 6, 7, 8 and 9 of the Motion for Interlocutory or Interim Injunction dated 10 February 2005 be adjourned to 29 March 2005.
On 5 May 2006, a complaint was made on Mr Neil's behalf by Ms Beryl Glasson against Mr Tim Cocks (a partner of Cocks Macnish), Mr Steven Walters, presumably a partner of Walters & Associates, and Jackson McDonald. Ms Glasson complained that the solicitors for Mr Nugent and Mr Szuch were well aware that the order of 1 March 2005 and the provisions of the Corporations Act 2001(Cth) had not been complied with by their client but they had failed to terminate their retainer. She also complained of a conflict of interest on the part of Mr Walters and Jackson McDonald for acting for the individual defendants whose interests may be in conflict.
On 9 May 2006, a legal officer of the Complaints Committee, Mr Jordan, wrote to Ms Glasson noting that the orders required compliance with various obligations by the defendants and seeking clarification of the manner in which it was said that the Western Australian practitioners concerned have been guilty of unprofessional conduct. The letter recites that Ms Glasson had identified Ms Maria Saraceni and Mr Skinner as the subject of her complaint.
In an email dated 9 May 2006, Ms Glasson complained that Mr Skinner 'gave a lawyer's undertaking this year to Cocks Macnish and Mr Neil (on separate occasions) to provide the missing Reward documents for inspection' and that that undertaking had not been honoured. In a subsequent email that day, Ms Glasson identified her complaints as being a breach of the undertaking by Mr Skinner, a serious conflict of interest on the part of Jackson McDonald in acting for the Reward companies as well as Mr Nugent and Mr Szuch, and failure by Jackson McDonald to terminate their retainer in the light of defiance of the Master's order by Mr Nugent and Mr Szuch.
On 11 May 2006, the Complaints Committee sought clarification of the precise undertaking said to have been given by Mr Skinner, and noted that it had received no particulars of the complaint against Ms Maria Saraceni.
Ms Glasson responded the following day by email. The email complained about documents not having been provided, but did not give a response to the request for details of the precise undertaking given nor did it identify the particulars of complaint against Ms Maria Saraceni. Several emails from Ms Glasson followed later on the evening of 11 May 2006. Those emails made references to the duties of lawyers in relation to illegal activities by their client, and repeated complaints that Mr Nugent and Mr Szuch had not complied with the Court's orders. No particulars were given of the alleged undertaking by Mr Skinner nor of the complaint against Ms Maria Saraceni.
After a further exchange of emails and correspondence which proved fruitless, Mr Jordan wrote to Ms Glasson suggesting that Mr Neil arrange an appointment so that a statement could be taken.
On 21 May 2006, Ms Glasson wrote to the law complaints officer by email. In relation to the undertaking said to have been given by Mr Skinner to Dr Pat Saraceni (a partner of Cocks Macnish) Ms Glasson suggested that the complaints officer contact Dr Pat Saraceni direct for clarification. Ms Glasson also provided copies of emails sent between January 2006 and March 2006 from Ms Glasson to Ms Maria Saraceni and Ms Bartlett concerning difficulties Mr Neil was having in obtaining access to the documents of the Reward companies. Also included were emails to Mr Walters in relation to the same matter and to questions of conflict of interest. Essentially, the difficulty which appears to have been encountered was that when documents were requested of the Victorian solicitors, the response was an invitation to go through 60 boxes of files in storage in Victoria so as to locate whatever documents they were seeking. She complained that the solicitors had failed to obtain copies of documents not amongst the company's stored records.
On 1 June 2006, the legal officer again wrote to Ms Glasson by email expressing concern that time was passing and the Complaints Committee was unable 'to give proper shape to the complaint and to undertake any investigation of it'. He asked that Mr Neil telephone him.
Ms Glasson responded on 1 June 2006 asserting that she had been very specific in the complaints laid and asking 'as a matter of procedural fairness' for the complaints officer to outline in writing exactly what it is that he could not understand. In response, the complaints officer again requested that Mr Neil contact him so as to agree how best to proceed. After some further unproductive correspondence, the legal officer wrote to Ms Glasson and advised that he proposed to make direct contact with Mr Neil to obtain further information to enable the investigation to proceed. That email prompted a response from Ms Glasson again demanding 'that you clearly set out in writing the clarification that you are completely unable to obtain from me'.
It appears that there was subsequent communication between the law complaints officer and Mr Neil. On 10 November 2006, the law complaints officer wrote again to Ms Glasson seeking clarification about various complaints. In relation to the complaints against Mr Skinner and Ms Maria Saraceni, the law complaints officer sought answers to the following questions:
The complaint against Mr J C W Skinner and Ms M G Saraceni (originally described as 'Steven Walters' agents'):
(a)whether the failure to give proper discovery had been referred back to the court generally;
(b)if unprofessional conduct was alleged on the part of the practitioners on being associated with destroyed documents, what the documents in question were;
(c)a copy of any affidavit or affidavits of documents filed by any one of the defendants;
(d)whether Mr Neil had taken the failure of the defendants to give discovery specifically back to Master Sanderson pursuant to the reserved liberty to apply;
(e)the manner in which the two practitioners from Jackson McDonald were alleged to have been guilty of unprofessional conduct as 'assisting or being seen to be condoning that activity (which is to say, the unlawful conduct of the four defendants in failing to give discovery)';
(f)as to the assertion that Mr Skinner gave his lawyer's undertaking as to discovery to Cocks McNish (sic) and Mr Neil:-
(i)whether the practitioner at Cocks McNish (sic) to whom the undertaking was given was Ms P A Saracine (sic);
(ii)in relation to each undertaking, the effect of what precisely was said by Mr Skinner; and
(iii)how it was said by Mr Neil that Ms M G Saracine (sic) was associated with the alleged unprofessional conduct on the part of Mr Skinner in failing to carry out the undertaking;
(g)the nature of the conflict of interest in which Mr Skinner was alleged to be acting;
(h)whether Mr Neil had given consideration to raising the alleged conflict of interest when taking the non-compliance on discovery back to Master Sanderson pursuant to the liberty referred to above;
(i)whether the practitioner, Ms M G Saraceni, was associated with any such conflict of interest;
(j)(following my telephone conversation with Mr Neil and the assertion for the first time that Mr Skinner had given a personal undertaking that the would deliver up the documents missing from his client's discover) details of the approximate dates on which Mr Skinner gave the alleged personal undertaking to Ms P A Saracine (sic) and the dates upon which, when the undertaking was mentioned in a hearing before Master Newnes, Mr Skinner did not deny the making of the same.
Further, with the passage of time since your first e-mail (or since the matter was first raised by Mr Neil in his discussion with Ms Howell), certain of these matters so enquired of have admitted of an inference from such facts as we do have. We cannot, however, place complaints before practitioners and ask them to respond sensibly to the same without giving factual particularization, as alleged by the complainant, in clear terms. It is totally unfair for us to ask practitioners to respond to assertions, and serious assertions, of unprofessional conduct supported only by particulars derived from some inferential process.
On 21 November 2006, Ms Glasson responded in relation to the undertaking by Mr Skinner. She suggested that the complaints officer should ask Dr Pat Saraceni to provide her with notes of the conversation or correspondence with Mr Skinner relating to the undertaking. Accordingly, on 27 November 2006, the law complaints officer wrote to Dr Pat Saraceni seeking details of the undertaking given to her.
In response, by letter dated 6 December 2006, Cocks Macnish wrote to the law complaints officer. The letter said:
We have conducted a thorough search of our correspondence file and can find no written undertaking from Mr Skinner. To the best of our recollection, Mr Skinner agreed to pass on to his instructing solicitor our client's requests for access to documents. However, he gave no personal undertaking that those documents would be provided.

The letter then recounted the history of Mr Neil's attempts to inspect documents supplied pursuant to the order in Victoria, and Mr Neil's concern that not all documents specified in the order had been provided. The letter then recounted the recollection of the solicitor who attended a hearing before Master Newnes on 20 February 2006 as follows:
•Mr Neil personally attended and advised Master Newnes of the Supreme Court that he intended to file Notice of Change of Solicitor. He sought and was granted leave to appear for and on behalf of the plaintiffs.
•Mr Skinner appeared on behalf of the Defendants.
•Just prior to the appearance, Mr Skinner, Mr Neil and Mr Hopwood discussed the Motion and in particular the Defendant's provision of documents pursuant to the Orders of Master Sanderson. Mr Skinner advised that he was instructed that all documents that existed within the scope of Master Sanderson's orders had been provided for inspection. Mr Neil said that in his opinion there were a number of categories of documents missing. Mr Skinner asked if Mr Neil could specify what the missing documents were. After some further discussion Mr Skinner invited Mr Neil to provide a list of the documents that were allegedly missing and he said that he would pass it on to his instructing solicitors in Victoria.
•To the best of Mr Hopwood's recollection Mr Skinner did not give a personal undertaking that the allegedly missing documents would be provided by the First and Second Defendants. To the best of Mr Hopwood's recollection, Mr Skinner undertook to pass on to his instructing solicitors any list of documents that Mr Neil alleged existed but had not been provided pursuant to the orders of Master Sanderson. That is the only undertaking that we recall Mr Skinner giving on that occasion.
•To the best of Mr Hopwood's recollection, Mr Neil did not, when appearing before Master Newnes, state that Mr Skinner had given him a personal undertaking that the documents would be provided.
In a letter from Jackson McDonald to Cocks Macnish dated 17 February 2006, written in relation to the impending chambers listing on 20 February 2006, Mr Skinner made reference to a suggestion made at an earlier chambers appearance on 23 January 2006 that he would be provided with a list of documents said not to have been made available for inspection. The letter recites that that list had not been received. Reference is also made to an email from Ms Glasson which is said to state her understanding that Jackson McDonald 'gave a solicitor's undertaking to produce for inspection all Reward documents the subject of a WA Court order that had so far not been produced for inspection'. In relation to that suggestion, the letter says 'We have given no such undertaking and are not in a position to do so'.
Cocks Macnish's response to the complaints officer was sent to Ms Glasson noting the denial by both Dr Pat Saraceni and Mr Hopwood that any personal undertaking was given by Mr Skinner to them, and noting Mr Skinner's denial of that assertion in the letter of 17 February 2006.
A significant volume of further communications from Ms Glasson were directed to the Complaints Committee concerning Mr Skinner and Ms Maria Saraceni as well as a number of other legal practitioners. Eventually, in late January 2009, the complaints were referred to Ms Maria Saraceni and Mr Skinner. By this time, Ms Maria Saraceni was no longer a partner at Jackson McDonald. In a response dated 19 March 2009, she expressed uncertainty as to precisely what the complaints against her were, but confirmed that she was able to state categorically that she undertook no work on or in relation to the action involving Mr Neil, and that as soon as she had received correspondence in relation to the matter, she had passed it on to the partner responsible for supervising Mr Skinner.
Mr Skinner responded comprehensively to the complaints by letter dated 26 March 2009. He recounted the history of the actions in respect of which he acted on instructions from Walters & Associates on behalf of the parties involved in litigation with Mr Neil. He acknowledged that Mr Neil had expressed concern about compliance with the obligations of the defendants under the 1 March 2005 orders, and acknowledged that at various times he indicated to Dr Pat Saraceni and Mr Hopwood and Mr Neil that he would do what he could to resolve the ongoing dispute between Mr Neil and the defendants regarding the documents said not to have been made available. He expressly denied, however, that he gave any personal undertaking to any person that he would deliver up documents said to have not been made available, and that he was never at any time in a position to satisfy any such undertaking. That assertion was, of course, consistent with what he had said in his letter to Cocks Macnish of 17 February 2006 when Ms Glasson had first raised the suggestion that an undertaking had been given.
In relation to the question of conflict of interest, Mr Skinner noted that that issue had been raised as early as January 2005 by Cocks Macnish and in an application by Mr Neil to the Court in February 2005. He recited the history of that application which was not ultimately pursued. The application in relation to conflict of interest arose in different proceedings from those in which the order of 1 March 2005 was made, and Mr Skinner said that, to his recollection, no allegation of conflict of interest was ever formally raised in relation to that action. Implicit in this response was that he did not accept that any conflict of interest arose.
Thereafter, in the first half of 2009, Ms Glasson wrote a number of emails to the law complaints officer to the effect that Mr Skinner had failed to comply with discovery obligations under the order made on 1 March 2005, and referring to the decision in the Guss vLaw Institute of Victoria Ltd [2006] VSCA 88, a case in which a practitioner had been suspended as a result of a failure to discover a document and failing to correct the false statement made by counsel to the Court in the solicitor's presence that no such document existed. The correspondence suggested that Ms Maria Saraceni was responsible for Mr Skinner's conduct on the basis of an employer employee relationship.
On 26 June 2009, Ms Glasson sent an email to the law complaints officer. The email expressed concern as to the non-production of documents. Ms Glasson requested that a detailed reply to her concerns be obtained from Ms Maria Saraceni and Ms June Bartlett. Although it appears that the email of 17 February 2006 from Ms Glasson to Jackson McDonald, in which reference to an undertaking to produce documents was made, had been sent to both Ms Bartlett and Ms Maria Saraceni, the email of 26 June 2009 appears, from the papers contained in the Complaints Committee's bundle, to be the first mention of a complaint against Ms Bartlett. Reference is made to the proposition that 'the act of one partner in law is the act of both partners'. Thereafter, in numerous emails sent by Ms Glasson to the Complaints Committee, Ms Bartlett was included with Ms Maria Saraceni and Mr Skinner as subject of complaint. In an email dated 2 July 2009, Ms Glasson identified the basis of complaint against Ms Bartlett as being that she understood that Mr Skinner at the relevant time reported to Ms Bartlett as the responsible partner.
After that somewhat lengthy and tortuous history, the Complaints Committee finally provided a decision on the complaints to Ms Glasson. In their letter conveying their decision, the Complaints Committee identified the complaint against Mr Skinner as being that he:
•failed to ensure that his clients fully complied with their obligations (by statute and court order) to disclose certain documents;
•had breached a personal undertaking to personally produce those missing documents requested by the complainant; and
•acted for multiple clients with conflicting interests.
The complaint against Ms Saraceni was described as being that she was vicariously liable for Mr Skinner's conduct as a partner of Mr Skinner's employer.
The complaint against Ms Bartlett was said to be by reason of her role as Mr Skinner's supervisor and as a former partner of the firm.
That summary of the complaints is, in my view, an accurate distillation of the voluminous communications from Ms Glasson on Mr Neil's behalf over a long period of time.

The application to adduce oral evidence

By email dated 26 July 2010, Mr Neil provided grounds for seeking to satisfy the order that the question of leave be dealt with on the papers so as to enable him the opportunity to adduce oral evidence. He indicated that he wished to call four witnesses.
The first was Ms Anne Durack, an officer of Law Mutual, a division of the Law Society of Western Australia. Mr Neil said that he had discussed with Ms Durack 'the relevant case law which Anne has provided to all WA lawyers who must compulsorily attend each year Anne Durack's Law Mutual compulsory lecture at the WA Law Society premised'.
Mr Neil identified two decisions which were presumably those which he thought Ms Durack might refer to in evidence. The notion that a witness should be called to produce or explain a case to be relied upon as authority for a particular legal proposition is, of course, quite misconceived. It is open to Mr Neil to cite any authority he considers relevant to his case, and to make submissions as to the application of the authority to the facts of the case.
The second witness proposed to be called is Mr Paul Hopwood, a solicitor employed by Cocks Macnish who appeared on Mr Neil's behalf at a hearing on 20 February 2006. In his submission to the Tribunal, Mr Neil said that he was attaching a copy of a transcript of that hearing. A copy was not attached, but Mr Neil stated in his submission that, in that transcript, Mr Skinner is quoted as saying:
I have indicated to Mr Neil this morning that I understand we have now been provided with a list of each a description of the documents that he says haven't been provided for inspection and I have said I will forward those under cover of my firm's letterhead to our instructing solicitors in Melbourne and see if we can get to the bottom of where they are, if they exist and whether or not they have been produced.
For present purposes, I am prepared to assume that that is an accurate quotation of what was said by Mr Skinner, and it appears consistent with Mr Skinner's version of events. There is no need for Mr Hopwood to be called to confirm that those words were said.
The third witness proposed to be called is Dr Pat Saraceni. The reason given for calling her to give evidence is said to be 'set out in my attached letter to Paul Hopwood dated 1 April 2010'. I am unable to locate that document in any of the fifty pages of attachments to the email.
The fourth proposed witness is Ms Sabina Schlink, who is said to be a member of the Complaints Committee for many years 'who has not been a member of the Legal Profession Complaints Committee that has made an adverse decision against me and for the reason set out in the said letter of 27 June 2010 to the Acting Chairman of the Legal Profession Complaints Committee and in correspondence to Sabina in 2006.'
The letter of 27 June 2010 referred to is not amongst the attachments to the email. It may possibly be amongst the hundreds of pages of attachments to various documents lodged with the Tribunal in relation to this or other matters. It is difficult, however, to see that Ms Schlink would be capable of giving any evidence as to the events subject of complaint against Mr Skinner, Ms Maria Saraceni or Ms June Bartlett.
The substantive matter for determination is whether or not Mr Neil should be given leave to apply for a review of the Complaints Committee's decision. In my view, none of the oral evidence foreshadowed by Mr Neil is necessary or relevant to the determination of that issue. It is appropriate that the question of leave be dealt with on the papers, and the application to have an oral hearing for the purpose of adducing oral evidence should be rejected.

Should leave be granted?

In Neil and Legal Profession Complaints Committee [2010] WASAT 39, I discussed the criteria for the grant of leave under s 435(2) of the LP Act at [22] - [23], where I said:
In other contexts where leave is required before bringing a matter to the Tribunal, the Tribunal has adopted the criteria for the grant of leave identified by the full court in Wilson - for example, see Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119. The criteria 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.
In my view, those principles are appropriate to the question of leave under s 435(2) of the LP Act. In other words, an applicant under s 435(2) must demonstrate that the Committee's decision to dismiss the complaint was wrong, or at least attended with sufficient doubt to justify leave, and that a substantial injustice would be done by leaving the decision unreversed.
The first question is, therefore, whether the decision of the Complaints Committee to dismiss Mr Neil's complaints was wrong, or at least attended to with sufficient doubt to justify the grant of leave.
It is appropriate to start with the alleged conduct of Mr Skinner, since the liability of Ms Maria Saraceni and Ms Bartlett is said to flow from the actions of Mr Skinner.
In Mr Skinner's response of 26 March 2009, he says that Jackson McDonald's involvement in the matters concerning Mr Neil was as a result of engagement by Walters & Associates of Melbourne to act as their Perth agents in respect of the various Supreme Court actions. There is no reason to doubt the correctness of that assertion. The documents before the Tribunal make clear that the principal responsibility for the conduct of the matter lay with the Melbourne solicitors. Mr Neil had numerous communications with Mr Walters about access to the documents referred to in the order of 1 March 2005. The transcript of the hearing before Master Newnes on 20 February 2006, in the passage set out above, Mr Skinner referred to the fact that he would provide the list of documents to his instructing solicitors in Melbourne. It is clear, in my view, that Jackson McDonald were at all relevant times acting in the capacity of Perth agents for Mr Walters, although that role clearly involved Mr Skinner appearing as counsel before the Master on several occasions, a role which undoubtedly carried with it all of the obligations of counsel to the Court.
The first complaint against Mr Skinner is that he failed to ensure that 'his clients' fully complied with their obligations (by statute and court order) to disclose certain documents. Nowhere in the voluminous materials submitted by Mr Neil or Ms Glasson is there a clear statement of precisely what action (other than to terminate his retainer) they say Mr Skinner should have taken but did not. Their complaint essentially is that certain documents were not produced as they should have been and that responsibility for that failure lies with Mr Skinner.
So far as can be ascertained, Mr Skinner had no direct contact with Walters & Associates' clients. Quite appropriately, he reported to and received his instructions from the Melbourne solicitors. It is apparent that, when Mr Neil expressed concerns to the Court about missing documents, Mr Skinner agreed to (and apparently did) forward a list of descriptions of the documents said to be missing to the Melbourne solicitors so that they could deal with Mr Neil's concerns. In my view, Mr Skinner had no obligation to do anything more about the alleged non-compliance by the defendants with the terms of the order of 1 March 2005.
One of the decisions which Mr Neil indicated he wished Ms Durack to produce in evidence is the decision of the Full Federal Court in Amadio Pty Ltd v Henderson [1998] 81 FCR 149 (Amadio), a case dealing with the liability of solicitors for negligence. The solicitors concerned, Nevett Ford, had received instructions to carry out certain legal work on behalf of a group of investors. The instructions had been provided by another firm of solicitors. The trial judge had found that, while it was contemplated that instructions, in the sense of provision of information, would pass from the other solicitors to Nevett Ford, there was nothing in Nevett Ford's retainer which restricted the right or obligation of Nevett Ford to communicate with their clients directly or through the relevant accountants should such communication be necessary or appropriate for the discharge of their obligations to their clients. In other words, it was found as a fact that there was a retainer for Nevett Ford to act for the investors, and that the other solicitors had never assumed responsibility for acting for the investors in relation to the matters for which Nevett Ford was retained.
Precisely what point Mr Neil seeks to draw from Amadio is not clear. I am unable, however, to see its relevance to the present, factually different, case. There is no evidence to suggest that Jackson McDonald ever assumed responsibility for collation and management of the production of Walters & Associates' clients' documents, and there was no obligation for them to do so.
Mr Neil also made reference to the decision in West Coast Clothing Co Pty Ltd v Freehill, Hollingdale and Page [1999] VSC 266 (West Coast Clothing). In that case, Freehill, Hollingdale and Page in Perth acted as agents for a Melbourne solicitor in relation to certain litigation. They argued that any duties owed to their principal's client, West Coast Clothing Company, were limited to the scope of their retainer. Smith J found that Freehill's duty of care was not confined in the manner submitted by Freehills. Rather, their obligation was to exercise reasonable care and skill in the course of their retainer as agent for the Melbourne solicitor, and to take all reasonable steps to avoid any real or foreseeable risks of economic loss sustained by West Coast Clothing (at [38]).
Questions of duty of care owed by Mr Skinner to the defendants in the Supreme Court proceedings for whom he appeared do not, of course, arise in this case. Presumably, Mr Neil relies upon the decision in West Coast Clothing as supporting the proposition that Jackson McDonald and Mr Skinner were subject to all of the obligations attendant upon a lawyer representing a client. The nub of Mr Neil's complaint appears to be based upon a proposition that Mr Skinner should personally have ensured that the order of 1 March 2005 was complied with, or failing that should have ceased to act for the defendants. In a number of the communications between Ms Glasson and the Complaints Committee, the following passage from the text Lawyers' Professional Responsibility, G E Dal Pont (4th ed, 2010) at 425 is referred to. That passage reads as follows:
If a lawyer becomes aware that a client is engaging in unlawful conduct, the appropriate response is to counsel the client against it and to eschew any involvement in that conduct, whether by assisting or being seen to be condoning that activity. This may require the lawyer to refuse to perform an act that the client directs, and may even require the lawyer to terminate the retainer. If a lawyer has reason to believe that a client will disregard the lawyer's advice and thereby contravening the law or some legal obligation to a third party, again he or she should counsel the client of the lawyer's responsibilities and, if the client persists, terminate instructions.

The premise of Mr Neil's argument is that Mr Skinner knew, or had reason to believe, that the defendants for whom he appeared were acting illegally in the sense of failing to comply with the Court's order. In an email to the Complaints Committee of 6 May 2006 outlining her complaints against Steven Walters and Jackson McDonald, Ms Glasson said:
Normal conduct is that solicitors cooperate over documents for inspection under the Corporations Act and under Court Orders. If you write and ask for a document, solicitors normally would by obeying and upholding the law simply respond by providing a copy of the document requested.
However this has not been the case with Steven Walters and Jackson McDonald.
Their response has generally been - find it for yourself - (among the 60 boxes of Reward Insurance Ltd documents held in storage at Williamstown, Victoria) - and if a document is not there - (in approx 140,000 pages of documents) - then it does not exist.
This uncooperative 'scorched earth approach' conduct has cost Mr Neil tens of thousands of dollars necessitating about 8 trips to Melbourne usually consisting of four days at a time (Mr Neil does have to earn a living) in 2005.
It is clear that throughout 2005, Mr Neil made numerous requests for various documents, or categories of documents, of Walters & Associates and Jackson McDonald. By way of example, on 5 July 2005, Cocks Macnish, on behalf of Mr Neil, sent an email to Jackson McDonald. The email recorded that Mr Neil had been undertaking an inspection of the defendants' files pursuant to the order of 1 March 2005, and that it was anticipated that the process would be completed in the relatively near future, with 'some ten odd boxes that have yet to be inspected'. Concern was expressed as to the absence of documents said to be the subject of the order. Cocks Macnish said that their client had been liaising directly with Steven Walters in relation to specific documents, and enclosed seven pieces of correspondence with Mr Walters concerning documents dealing with a particular subject matter. The email expressly reserved Mr Neil's rights in relation to enforcement of the 1 March 2005 order, and his right to apply for injunctive relief.
According to Mr Skinner's response to the Complaints Committee dated 26 March 2009, that letter was forwarded by Jackson McDonald to Walters & Associates in Melbourne by email on 6 July 2005 with a request that Walters & Associates respond directly to Cocks Macnish. Mr Skinner's understanding was that Walters & Associates did respond by email to Cocks Macnish on 10 July 2005.
It is quite clear from his correspondence with the Complaints Committee, and his submissions to the Tribunal, that Mr Neil maintains that certain documents have not been provided in accordance with the Master's order. It appears, however, that the liberty to apply granted by the order has not been exercised nor have any of the proceedings threatened in Cocks Macnish's facsimile of 5 July 2005 been undertaken. The focus of Mr Neil's energies since early 2006 appears to have been directed to complaints of a failure by all of the solicitors involved, including his own, to cause the defendants to comply with the order. So far as is apparent from the papers filed before the Tribunal, there has been no determination by the Court that there has been a non-compliance with the order. Rather, it is Mr Neil's assertion that documents described in the order have not been produced.
As mentioned above, Mr Neil does not specify with precision what he says Mr Skinner and Jackson McDonald should have done beyond what they did do in the face of his claims that the documents had not been produced in accordance with the order, other than that they should have terminated their instructions. In my view, the materials before the Tribunal provide no basis for that suggestion. Mr Skinner was not obliged to accept Mr Neil's assertions. It was clear, at all times, that Jackson McDonald, and Mr Skinner, were acting on instructions from Melbourne solicitors who had the principal conduct of the matter. Jackson McDonald's obligation was to refer questions from Mr Neil or his solicitors to their instructing solicitors so that Walters & Associates could deal with the matter. The example of the manner in which the facsimile of 5 July 2005 was treated provides an example of Jackson McDonald fulfilling its proper role. Similarly, Mr Skinner's agreement to forward a list of document types to his instructing solicitors was an appropriate action on his part. Neither he, nor Jackson McDonald, had, in my view, any responsibility to go further than they did.
I agree that there is no reasonable likelihood that the Tribunal would find Mr Skinner guilty of unsatisfactory professional conduct or professional misconduct by failing to ensure the defendants fully complied with their obligations.
The second complaint against Mr Skinner is that he breached a professional undertaking to personally produce missing documents requested by Mr Neil. That matter is easily disposed of. There is no evidence at all that any undertaking was given. Not only does Mr Skinner deny giving an undertaking, but Mr Neil's own solicitors, to whom the undertaking is said to have been given, deny that there was an such undertaking.
Mr Neil apparently relies upon the passage from the transcript of the hearing before Master Newnes on 20 February 2006 as constituting the undertaking. It is not an undertaking of the nature and terms suggested in Mr Neil's original complaint and dealt with by the Complaints Committee. It amounts to no more than advice to the Court as to an assurance provided by Mr Skinner to Mr Neil to forward the list of documents to his instructing solicitors. Mr Skinner's response to the Complaints Committee makes clear that he did forward the list to Walters & Associates in accordance with his assurance, and requested that Walters & Associates respond to Mr Neil directly.
It follows that, in my view, the Complaints Committee was correct in concluding that the first two complaints against Mr Skinner had no reasonable basis, and was thus unreasonable. Leave to seek a review of the Complaints Committee's decision is thus refused.
As to the conflict of interest complaint, there is no basis for concluding that any conflict existed between the defendants in relation to the action in respect of which Mr Skinner was acting. As the Complaints Committee noted in its decision, there appeared to be a potential for conflict, but at the point in question, conflict had not crystallised. In the context of other actions it appears that issues of conflict had been addressed by Walters & Associates and they, and Jackson MacDonald on their behalf, had maintained that no conflict existed. Proceedings in relation to conflict brought by Mr Neil were not, apparently, ultimately pursued. Mr Neil has not identified the precise manner in which conflict is said to have been present. He has done no more than identify a potential for conflict. No basis for an allegation that Jackson MacDonald or Mr Skinner acted in the face of an actual conflict of interest has been demonstrated. For that reason, it is not demonstrated that the Complaints Committee's decision on the conflict question is wrong and or attended with sufficient doubt to justify a grant of leave.
The complaint against Ms Maria Saraceni can be shortly dealt with. She had no personal involvement whatsoever in the litigation with which Mr Neil was concerned. Regardless of Mr Skinner's conduct, there could be no basis for complaint against Ms Maria Saraceni in a disciplinary context. The fact that she was, at the relevant time, a member of the partnership of Jackson McDonald is not sufficient to fix any liability on her in respect of the conduct of an employed solicitor in respect of a matter for which she had no personal knowledge or supervisory responsibility. The complaint against her is completely misconceived and the Complaints Committee was, in my view, correct in concluding that it was both unreasonable and vexatious.
Ms Bartlett apparently did have, as a partner of the firm, some supervisory responsibility in relation to Mr Skinner's work. Having concluded, however, that there is no reasonable likelihood that Mr Skinner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct, it follows that there could be no reasonable likelihood that Ms Bartlett could be found guilty of unsatisfactory professional conduct or professional misconduct. Even if there were concerns about the personal conduct of Ms Skinner (which there are not) none of Mr Neil's complaints go to matters of a failure to properly supervise Mr Skinner. In my view, the Complaints Committee was correct in concluding that the complaint against Ms Bartlett was unreasonable.
It follows that the application for leave in respect of each of the practitioners should be refused, and there will be orders accordingly.

Referral back to the Complaints Committee

As mentioned above, Mr Neil sought belatedly to have the matter referred back to the Complaints Committee for consideration under s 31 of the SAT Act. The submission in support of that application appears to be based on the contentions that certain Reward documents exist but have not been produced, and that assertions made to the effect that certain documents do not exist raise suspicions of a breach of s 132 of the Criminal Code (which concerns destruction of evidence).
The question of whether or not the defendants in fact complied with the orders of 1 March 2005 is not a matter that was before the Complaints Committee or the Tribunal. What is before the Tribunal is the propriety of the solicitors' conduct judged in light of the facts as they existed (or were apparent to the solicitors) at the time of the conduct.
It would be inappropriate to refer the matter back to the Complaints Committee for further consideration in light of the findings in these reasons and the enormous time and effort already expended by the Complaints Committee in connection with these matters to date. There is, of course, no indication from the Complaints Committee that it would support a referral. The application for an order under s 31 of the SAT Act is refused.

Orders

1.The application for leave to apply for a review of the decision of the Complaints Committee made 5 August 2009 against Mr Julius Skinner, Ms Maria Saraceni and Ms June Bartlett is dismissed.

I certify that this and the preceding [68] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT