NEIL and LEGAL PROFESSION COMPLAINTS COMMITTEE - [2010] WASAT 39

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION: NEIL and LEGAL PROFESSION COMPLAINTS COMMITTEE [2010] WASAT 39

MEMBER: JUSTICE J A CHANEY (PRESIDENT)

HEARD: 24 SEPTEMBER 2009
WRITTEN SUBMISSIONS:
1 OCTOBER 2009
26 OCTOBER 2009
3 NOVEMBER 2009
13 NOVEMBER 2009
14 DECEMBER 2009
18 DECEMBER 2009
22 DECEMBER 2009
11 FEBRUARY 2010
12 FEBRUARY 2010
15 FEBRUARY 2010

DELIVERED : 26 MARCH 2010

FILE NO/S: VR 85 of 2009

BETWEEN: PETER CHRISTISON NEIL
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
KATE KORNACKI
Second Respondent

Catchwords:

Legal practitioners - Professional conduct - Allegation of knowingly preparing false affidavit - No basis for alleging knowledge of any falsity - Conduct partly in Western Australia and partly in Victoria - Need for consent to found jurisdiction of Legal Profession Complaints Committee - No consent - Complaints Committee lacks jurisdiction - Powers of Tribunal on review of decisions by Complaints Committee to dismiss a complaint
Practice and procedure - Leave to seek review - Principles to be applied - Whether application for leave a procedural hearing - Constitution of Tribunal for purposes of leave application

Legislation:

Commercial Arbitration Act 1985 (WA)
Judiciary Act 1903 (Cth), s 34(2)
Legal Practice Act 2003 (WA)
Legal Profession Act 2005 (VIC), s 4.2.10(1)(e)
Legal Profession Act 2008 (WA), s 42, s 407, s 407(2), s 407(2)(a), s 409, s 410, s 411(2), s 413, s 415, s 415(2)(c), s 417, s 421, s 425, s 426, s 428, s 435, s 435(2), s 437(1), s 437(2), s 438, s 438(1), s 439, s 440, s 441, s 621, Pt 13
State Administrative Tribunal Act 2004 (WA), s 17, s 18, s 27, s 29, s 29(1) s 29(2), s 29(3), s 30, s 31
Supreme Court Act 1935 (WA), s 60
Victims of Crime Act 1994 (WA), s 3, Sch 1

Result:

Application for leave dismissed

Category: A

Representation:

Counsel:

Applicant:     Self-represented
First Respondent           :     Mr P D Quinlin and Ms P Le Miere
Second Respondent       :     No appearance

Solicitors:

Applicant:     Self-represented
First Respondent           :     Law Complaints Officer
Second Respondent       :     No appearance

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

Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719
Greenwood and Legal Profession Complaints Committee [2010] WASAT 31
Lamac Developments Pty Ltd v Devaugh Pty Ltd (2002) 27 WAR 287
Re Luck (2003) 203 ALR1
Restifo and Legal Profession Complaints Committee [2009] WASAT 242
Southside Autos (1981) Pty Ltd v Commissioner of State Revenue (2008) WASCA 208
Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119
Wilson v Metaxas (1989) WAR 285

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Peter Neil brought an application pursuant to s 435 of the Legal Profession Act 2008 (WA) for a review of the decision of the Legal Profession Complaints Committee to dismiss a complaint which he 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 complaint was dismissed by the Legal Profession Complaints Committee summarily on the basis that it lacked jurisdiction to deal with the allegations. The Legal Profession Complaints Committee also found the complaint to be unreasonable and vexatious on the ground that there appeared to be no reasonable basis for the complaint.
The Tribunal considered, as a procedural issue, the proper requirement as to the constitution of the Tribunal for the purpose of dealing with applications for leave pursuant to s 435(2) of the Legal Profession Act 2008 (WA). It also considered the extent of its powers in connection with reviews under s 435. Having concluded that the President of the Tribunal, sitting alone, had jurisdiction to deal with the question of leave, the Tribunal considered whether the Legal Profession Complaints Committee, and in turn the Tribunal, had jurisdiction to deal with this complaint having regard to the provisions of s 407 of the Legal Profession Act 2008 (WA). Finally, it considered whether the decision to dismiss the complaint was attended with sufficient doubt to justify the grant of leave.
The President concluded that the Tribunal lacked jurisdiction to entertain the complaint, but also considered that the Legal Profession Complaints Committee's conclusion that no reasonable basis for complaint was demonstrated was justified.

Background to the proceedings

Mr Peter Neil was formally a legal practitioner but is not presently in legal practice. Mr Neil was at sometime a director of a company known as Reward Insurance Ltd. Another director was a Mr Murray Nugent. Over some years, Mr Neil was involved in litigation related to Mr Nugent and Reward Insurance Ltd. According to Mr Neil, the activities of Mr Nugent in relation to Reward Insurance Ltd caused him to lose his life savings, and he describes himself in correspondence as a 'victim of the crimes of Murray Nugent in relation to Reward Insurance Ltd for the purposes of the WA Victims of Crime Act'.
In 2008, bankruptcy proceedings against Mr Neil were on foot, based upon an alleged debt owed by Mr Neil to Reward Insurance Ltd. It is apparent that the applicant in those proceedings was represented by a Ms Kate Kornacki, a legal practitioner practising in Victoria.
In the course of those proceedings, an affidavit was sworn by Mr Nugent. The affidavit was dated 7 November 2008.
Paragraph 10 of the affidavit read:
10.Further, in accordance with the Respondent's established policy for the reimbursement of expenses of its Directors and employees, which was made known to the Applicant before the period for which he makes claim the Respondent will not reimburse any payments unless copies of the relevant receipts are provided to the Respondent. To date, despite requests dating back a number of years, the applicant has not provided receipts in respect of the amounts he alleges in his Affidavit that he is entitled to. In those circumstances, the Applicant is not entitled to be reimbursed for any such alleged expenses.
The paragraph was, it would seem, designed to deal with a counter-claim or set-off asserted by Mr Neil in relation to the debt claimed to support the bankruptcy proceedings.
On 29 January 2009, Ms Berryl Glasson wrote to the Legal Profession Complaints Committee (Committee) on behalf of Mr Neil. The letter asserted that para 10 of Mr Nugent's affidavit was false and complained that Ms Kornacki was responsible for the drafting and filing of a false affidavit. The letter requested an officer of the Committee 'to immediately act on this letter of complaint … by ringing the Legal Services Commissioner in Melbourne concerning lawyer Kate Kornacki's involvement in the swearing of a false affidavit … and filing same in WA which comes under the jurisdiction of WA law.'
On 26 February 2009, the Committee's legal officer, Ms Whitney, wrote to the Legal Services Commission in Victoria enquiring whether the matter was being investigated by that office. That letter noted that the affidavit was wholly prepared and sworn in Victoria and presumably lodged electronically from Victoria into the Perth registry at the Federal Magistrates Court. That letter was acknowledged by the Legal Services Commissioner on 5 March 2009. On 23 March 2009, the Legal Services Commissioner wrote to Ms Whitney advising that she had determined that pursuant to s 4.2.10(1)(e) of the Legal Profession Act 2005 (Vic), to summarily dismiss the complaint as it was one that she did not have the power to deal with on the basis that it was a matter currently before the Federal Magistrates Court.
In the meantime, on 30 January 2009, Ms Whitney had written to Ms Glasson. In that letter, Ms Whitney asked Ms Glasson to identify the basis for believing that Ms Kornacki knew that the facts attested to the affidavit were false or misleading. Ms Glasson responded by email dated 5 February 2009. The response did not provide any information as to the basis on which it was asserted that Ms Kornacki knew of any falsehood of the affidavit. Rather, it complained that the complaint should have been forwarded to Ms Kornacki for answer and made some observations about the general duties of legal practitioners. The email made reference to certain other emails to the Committee concerning complaints about other legal practitioners. None of those documents provide any indication of the basis upon which it might be said that Ms Kornacki knew of the falsehood of para 10 of the affidavit of Mr Nugent, although they do make complaints about Mr Nugent's honesty in various respects.
On 26 February 2009, Ms Whitney wrote to Ms Kornacki advising her of the existence of the complaint, and inviting any submission that might be made in relation to the question of the Committee's jurisdiction given that the matter was being investigated in Victoria.
On 31 March 2009, both Ms Glasson and Ms Kornacki were advised by a letter from Ms Whitney that she proposed to refer to the Committee the question of whether pursuant to s 407 of the Legal Profession Act 2008 (WA) (LP Act), the Committee had the power to consider the matter, also whether Ms Kornacki's letter dated 24 March 2009, in which Ms Kornacki said that she objected to a copy being provided to Ms Glasson and Mr Neil, should be published to Ms Glasson. Eventually, after receipt of voluminous emails and documents from Ms Glasson, mostly dealing with the broader history of the dispute between Mr Neil and Mr Nugent, the Committee wrote to Ms Glasson by email on 2 June 2009. That letter advised that, after careful consideration the Committee resolved to summarily dismiss the complaint under s 415(2)(c) of the LP Act because the complaint is not one that the Committee has power to deal with, and further that the Committee had resolved that the practitioner's response to the complaint should not be released to the complainant. The Committee expressed its reasons for that decision as follows:
The Committee considered that pursuant to section 407(1) of the Act it did not have jurisdiction over the allegations pertaining to the preparation and swearing of the affidavit because the conduct took place in Victoria. Furthermore, it did not have the necessary consent to consider any of the conduct pursuant to section 407(2)(a) of the Act. The Committee noted a complaint to the Victorian Legal Services Commissioner about the matter had been dismissed.
The Committee also found the complaint to be unreasonable and vexatious. On reviewing the materials provided by the complainant, the Committee considered there to be no reasonable basis for the complaint. The Committee did not consider it evident that the practitioner knew or should have known the affidavit contained false information. Rather, it appeared that the complainant's real concern was with the truth of evidence provided by the deponent. As a certificated legal practitioner of some considerable experience, the complainant should have been aware that the appropriate venue in which to challenge the evidence was the Federal Magistrates Court proceedings, not a complaint to a professional body. The Committee also noted that the complaint had already been raised by with the Victorian authority and had been dismissed.
Finally, the Committee noted that the complainant sought access to the letter dated 24 March 2009 sent to the Committee by the practitioner in responding to the complaint. The practitioner objected to production of the letter. The Committee resolved that in the circumstances, it would not release a copy of the letter to the complainant because it had not relied on the contents of the letter in dismissing the matter.
The applicable legislation at the time Ms Glasson made the complaint on behalf of Mr Neil, the Legal Profession Act 2008 (WA) (LP Act) had not come into force. Its substantive provisions commenced operation on 1 March 2009. Pursuant to s 621 of the LP Act, however, a complaint made under the previous legislation could be dealt with under the LP Act if it has not been finally dealt with before the commencement date. It is apparent from the Committee's letter of 2 June 2009, that it had proceeded to deal with the matter under the LP Act. As a result, s 435 of the LP Act gave to Mr Neil right to apply for a review which would not have existed had the matter been dealt with under the Legal Practice Act 2003 (WA). The right to a review is however conditioned by a requirement for leave where the Committee has found a complaint to be unreasonable or vexatious - LP Act s 435(2). There was no issue before me that Mr Neil had an entitlement to seek leave pursuant to s 435(2) of the LP Act.
On 29 June 2009, Mr Neil sought a review of the Committee's decision of 2 June 2009. The application was treated as an application for leave under s 435(2). In his application, Mr Neil sought a range of orders which go far beyond the powers of the Tribunal in the context of an application for leave to commence proceedings under s 435(2).
When the matter came on for hearing, an issue arose as to the requirements of the LP Act in relation to the constitution of the Tribunal for the purpose of dealing with applications for leave pursuant to s 435(2). Because neither party had fully considered that issue, directions were made for submissions to be filed on the point following the hearing. Mr Neil, who represented himself at the hearing, also sought an opportunity to provide written submissions as to the application of s 407 of the LP Act. Although the application of that section was fundamental to the Committee's decision in respect which Mr Neil sought review, he was given the opportunity to file further written submissions in the light of the Tribunal's exchange with Mr Neil on this question. Mr Neil provided a number of submissions following the hearing. In an emailed submission dated 23 October 2009, he dealt briefly with the application of s 407 of the LP Act. He observed that s 405 of the LP Act provide that Pt 13 applies to an Australian legal practitioner whether or not the practitioner is a local lawyer, holds a local practising certificate or an interstate practising certificate. That is true, but does not extend the limitations imposed by s 407 on the application of Pt 13 to conduct occurring partly within the jurisdiction and partly outside the jurisdiction.

The constitution of the Tribunal

Section 437 of the LP Act provides:
(1)Subject to subsection (2), for the purpose of exercising jurisdiction conferred under this Act, the State Administrative Tribunal is to be constituted by 3 members, as follows -
(a)by -
(i)the President of the Tribunal; and
(ii)a Deputy President of the Tribunal or a senior member who is a legally qualified member as defined in the State Administrative Tribunal Act 2004 section 3(1); and
(iii)a person who is not a legal practitioner but has knowledge and understanding of the interests of a person dealing with a legal practitioner;
or
(b)by -
(i)a Deputy President of the Tribunal; and
(ii)a senior member who is a legally qualified member as defined in the State Administrative Tribunal Act 2004 section 3(1); and
(iii)a person who is not a legal practitioner but has knowledge and understanding of the interests of a person dealing with a legal practitioner.
(2)In a hearing for the purposes of section 443 or a directions hearing or other procedural hearing, the State Administrative Tribunal is to be constituted by, or so as to include, the President or a Deputy President of the Tribunal.
As previously mentioned, the present proceedings come before the Tribunal by way of an application for leave to apply for a review of the Committee's decision. The requirement for leave is stipulated by s 435 of the LP Act which provides:

435. Review of Complaints Committee decision

(1)Subject to subsection (2), a person aggrieved by -
(a)a decision of the Complaints Committee to dismiss a complaint; or
(b)a decision made by the Complaints Committee under section 426,
may apply to the State Administrative Tribunal for a review of the decision.

(2)If the Complaints Committee, in its reasons for its decision, specifically finds the complaint -
(a)to be trivial, unreasonable, vexatious or frivolous; or
(b)in the case of a complaint purporting to be made under section 410(1)(e), to be a matter in which the complainant does not have, or did not have, a direct personal interest,

the person aggrieved cannot apply to the State Administrative Tribunal for a review of the decision without the leave of the Tribunal.

It is clear that, in deciding whether or not to grant leave under s 435(2) the Tribunal is exercising jurisdiction conferred under the LP Act. Accordingly, s 437(1) would require the constitution of the Tribunal by three members qualified as stipulated by that subsection, unless the application is properly considered a directions hearing or other procedural hearing, in which case the Tribunal is to be constituted so as to include the President or a Deputy President of the Tribunal. The Committee submits, and I accept, that a hearing as to the grant or refusal of leave under s 435(2) of the LP Act is properly to be regarded as a 'procedural hearing'.
In other contexts, the object of a requirement for leave is said to be to reduce appeals as much as possible: Wilson v Metaxas (1989) WAR 285 at 294 (Wilson). In my view, that is the obvious intent of s 435(2) of the LP Act. The primary responsibility for the bringing of complaints to the Tribunal rests with the Committee. The scheme of the LP Act is that a range of persons may make a complaint about an Australian legal practitioner (s 410). A complaint having been made, it falls upon the Committee to follow one or more of the procedures prescribed by the LP Act in relation to the complaint. It is given the power subject to certain conditions being met, to deal summarily with a complaint (s 42) to summarily dismiss a complaint (s 415) or to refer the complaint to the Tribunal (s 428). Unlike any other vocational regulation acts which confer disciplinary jurisdiction on the Tribunal, s 435 gives a right of review to complainants aggrieved by a decision of the Committee to dismiss a complaint.
It is clear that the legislature did not intend that all aggrieved complainants should have an unfettered right to seek review regardless of the Committee's view as to the merits of the complaint or regardless of whether a complainant had any direct personal interest in the matter the subject of complaint. Section 435(2) is clearly designed to restrict applications for review where the complaint is being dismissed because the Committee forms the view that it is trivial, unreasonable, vexatious or frivolous, or where the complainant does not have, or did not have, a direct personal interest.
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.

In Lamac Developments Pty Ltd v Devaugh Pty Ltd (2002) 27 WAR 287 at [124] - [128], Matthews AJ (with whom Malcolm CJ, Murray, Anderson and Steytler JJ agreed) said in the context of consideration of the nature of requirement for leave under the Commercial Arbitration Act 1985 (WA):
[124] The primary issue to be determined under this head is whether Roberts-Smith J's decision refusing leave to appeal under s 38(4) was a final or an interlocutory judgment. A final judgment is one which finally disposes of the rights of the parties: Sanofi v Parke Davis Pty Ltd (1981) 149 CLR 147 at 152. Lamac's counsel submits that the primary Judge's refusal of leave under s 38(4) was a final judgment. It had the result that the parties were bound by the arbitrator's award and that no further recourse was available to them outside the appeal structure of the court.
[125] At first sight this argument appears to be a persuasive one. The refusal of leave to appeal under s 38(4) is a far cry from procedural orders made in pre-hearing disputes pending the final determination of cases before the Court. However, as the New South Wales Court of Appeal made clear in Gosford City Council v Timbs, unreported; NSWCA 31; 21 July 2000, the question of whether an order is final rather than interlocutory is not to be determined by reference to the practical consequences of the order, but rather to the nature of the order itself, and in particular whether it finally determines the rights of the parties inter se.
[126] There is clear authority that an order granting leave to appeal, whether from an interlocutory or a final judgment, is itself an interlocutory order. The court in Sanofi, supra, Gibbs CJ, Stephen and Mason JJ said as follows at 153:
"It is always open to a court which has granted leave or special leave to appeal to rescind its order if it later appears that the leave or special leave should not have been granted."
[127] Just as leave to appeal, once granted, can always be revoked, so it will always remain open to parties to renew applications for leave, notwithstanding a previous refusal, in the event of changed circumstances. There is no reason in principle why leave to appeal under s 38(4) is in any different category. Indeed, there is persuasive authority to the effect that decisions refusing leave to appeal under that section are interlocutory rather than final. That was certainly the opinion of the South Australian Supreme Court in Civil Tech, which in this respect followed the findings of the Full Court of the Victorian Supreme Court in Costain Australia Ltd v F W Nielsen Pty Ltd [1988] VR 235.
[128] It follows, in my view, that the determination of a single Judge granting or refusing leave to appeal under s 38(4) is an interlocutory judgment. It is appellable only by leave. Leave may, however, be granted either by the primary Judge or by the Full Court, in accordance with the terms of s 60(1)(f). The respondent submits that the normal practice is for leave to be sought from the primary Judge, which did not happen in this case. But the seeking of such leave is not a pre-condition to the Full Court's jurisdiction to itself hear a leave application, as s 60(1)(f) makes clear.
Those comments were made in the context of consideration as to whether or not the order refusing leave was an interlocutory order so as to enliven the restrictions on appeals imposed by s 60 of the Supreme Court Act 1935 (WA). Section 437(2) of the LP Act does not refer to 'interlocutory hearings', but rather 'a directions hearing or other procedural hearing'. The question is whether the application of the considerations identified by Matthews AJ leads to the conclusion that a hearing of application for leave amounts to a procedural hearing.
In Re Luck (2003) 203 ALR1, McHugh ACJ, Gummow and Heydon JJ said in the context of the consideration for the requirement for leave under s 34(2) of the Judiciary Act 1903 (Cth):
An order refusing to grant leave after an O 58 direction has been made does not finally determine the legal rights of the parties. It does no more than refuse leave to serve the process, the subject of the direction, on the defendant or defendants.
Similarly, an order refusing leave to bring an application does no more than prevent a complainant from proceeding with an application for review before the Tribunal. In my view, the reasoning which leads to the conclusion that orders refusing leave to institute proceedings are interlocutory and not final orders, applies equally to lead to the conclusion that such orders are procedural orders for the purposes of s 437(2) of the LP Act. Accordingly, it is sufficient in an application under s 435(2) of the LP Act, for the Tribunal to be constituted so as to include the President or a Deputy President of the Tribunal which encompasses the President, or a Deputy President, sitting alone.

Application of s 407 of the LP Act

Section 407 of the LP Act provides:

407. Conduct to which this Part applies - generally

(1)Subject to subsection (3), this Part applies to conduct of an Australian legal practitioner occurring in this jurisdiction.
(2)This Part also applies to an Australian legal practitioner’s conduct occurring outside this jurisdiction but only -
(a)if it is part of a course of conduct that has occurred partly in this jurisdiction and partly in another jurisdiction, and either -
(i)the corresponding authority of each other jurisdiction in which the conduct has occurred consents to its being dealt with under this Act; or
(ii)the complainant and the practitioner consent to its being dealt with under this Act;
or

(b)if it occurs in Australia but wholly outside this jurisdiction and the practitioner concerned is a local lawyer or a local legal practitioner, and either -
(i)the corresponding authority of each jurisdiction in which the conduct has occurred consents to its being dealt with under this Act; or
(ii)the complainant and the practitioner concerned consent to its being dealt with under this Act;
or

(c)if -
(i)it occurs wholly or partly outside Australia; and
(ii)the practitioner concerned is a local lawyer or a local legal practitioner.

(3)This Part does not apply to conduct occurring in this jurisdiction if -
(a)the Complaints Committee consents to its being dealt with under a corresponding law; or
(b)the complainant and the Australian legal practitioner consent to its being dealt with under a corresponding law.

(4)Subsection (3) does not apply if the conduct is not capable of being dealt with under the corresponding law.
(5)The Complaints Committee may give consent for the purposes of subsection (3)(a), and may do so conditionally or unconditionally.

The Committee has jurisdiction to investigate complaints only in respect of conduct which comes within the conduct described in s 407. There is no suggestion that Ms Kornacki is a local lawyer or a local practitioner for the purposes of the LP Act. The preparation of the affidavit by Ms Kornacki occurred in Victoria, and apparently was filed electronically in the Perth registry of the Federal Magistrates Court from Victoria. Mr Neil seeks to bring the conduct within s 407 on the basis that the document was received in the Perth registry, and that a hearing at which the affidavit was relied upon occurred in Perth (although it is not suggested that Ms Kornacki attended any hearing in Perth). On that basis, Mr Neil submits Ms Kornacki's overall course of conduct occurred partly in this jurisdiction, and partly in another jurisdiction, and therefore falls within the conduct described in s 407(2)(a). Assuming that to be the case, it is necessary, in order to find jurisdiction on the part of the Committee, that the corresponding authority in Victoria consents to the matter being dealt with under the LP Act in Western Australia, and that both the complainant and the practitioner consent to it being so dealt with.
There is no evidence of consent by either the corresponding Victorian authority, the Victorian Legal Services Commissioner, nor by the practitioner. That conclusion provided the basis upon which the complaint by Mr Neil was dismissed by the Committee. At the oral hearing in relation to this matter, Mr Neil was unable to identify the required consents. He sought the opportunity to make written submissions on the application of s 407, rather than address the question in the oral hearing. That opportunity was provided to him. The limited submissions subsequently filed by him on the point are discussed above. In short, Mr Neil has not identified any basis upon which it might be said that the requirements of s 407(2)(a) are met.
A section of Mr Neil's submissions was entitled 'Role of the Law Complaints Officer'. The submission makes reference to an annual report to State Parliament by the Victorian State Ombudsman which apparently contained criticisms of the Victorian Legal Services Commissioner. The submissions are critical of the decision by the Legal Services Commissioner to decline to deal with the complaint against Ms Kornacki on the ground that the matters were still before the Court. Mr Neil makes reference to a document entitled 'Protocols for Australian Regulatory Authorities as agreed at the conference of regulatory offices held in Adelaide 17 - 18 November 2005'. That document deals with a number of protocols between regulatory bodies concerning exchange of information, identification of principal legal practices, trust account investigations, fidelity fund arrangements and investigations of complaints/conduct. Protocol 5 deals with investigation of complaints/conduct.
Protocol 5.2 identifies issues to consider and reads:
When determining which party should investigate the complaints/conduct, the following are factors to be considered:
5.2.1the practitioner's home jurisdiction;
5.2.2the jurisdiction where the legal services were provided; and
5.2.3the jurisdiction where the alleged conduct took place.
Mr Neil submits that protocol 5 was not properly complied with by virtue of the Legal Services Commissioner's decision not to investigate the complaint.
In my view, the protocols have no relevance to the application of s 407. Section 407(2) identifies prerequisites to the existence of jurisdiction on the part of the Committee in relation to a course of conduct that occurs partly in Western Australia and partly in another jurisdiction. If those prerequisites are not met, there is no jurisdiction. The fact that there are in existence protocols as between regulatory authorities as to the manner in which they will resolve questions as to the jurisdiction in which conduct will be investigated does not remove or somehow overcome the preconditions to jurisdiction found in s 407(2)(a) of the LP Act. In his correspondence to the Committee and the Tribunal of 12 February 2010, Mr Neil complains that the copy of the Protocol with which he was provided was unsigned. In view of my conclusion as to the relevance of the Protocol, nothing turns on that complaint.
The Committee was correct in its conclusion that it lacked jurisdiction to deal with Mr Neil's complaint in the absence of consent from the Victorian Regulatory Authority and the practitioner concerned.

Referral to the Committee pursuant to s 31 of the State Administrative Tribunal Act

In submissions made to the Tribunal during November and December 2009, Mr Neil submitted that the Tribunal ought to refer the complaint back to the Committee pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The basis for that application was said to be correspondence with the chairman of the Committee, Mr Zelestis QC, in which Mr Zelestis is said to have 'undertaken to investigate the lack of procedural fairness' afforded to Mr Neil.
That submission arises from an exchange of emails between Mr Neil and Mr Zelestis. The first email from Mr Neil dated 30 October 2009 complains that Mr Neil had not been provided with a copy of a response from a legal practitioner to a complaint made by Mr Neil. The particular complaint and practitioner is not identified in that email, although it may be that it was a reference to Ms Kornacki's reply. Mr Zelestis replied by email dated 3 November 2009 to the effect that it was not appropriate to release to Mr Neil information in relation to a complaint in which Mr Neil had 'no professional or representative role'. It is not clear whether Mr Zelestis had in mind this complaint or one of the other many complaints about legal practitioners made by Mr Neil and referred to in the voluminous documents filed in this matter.
There were subsequently further emails to Mr Zelestis from Mr Neil dated 5 November 2009 at which Mr Neil dealt at some length with a complaint of conflict of interest against a different practitioner. In response to that email, Mr Zelestis replied that 'your complaints are being investigated by the LPCC. However, the LPCC will not communicate all relevant information to you as a matter of course for the reasons I have already explained'.
Whether that exchange of emails even deals with the present matter is not clear. But assuming it does, it does not support a referral back to the Committee under s 31 of the SAT Act. The Committee has no jurisdiction to deal with this complaint in the absence of the required consents. Those consents have not been provided. There is no point in referring the matter back to the Committee where it has no jurisdiction to deal with the matter.

Unreasonable and vexatious

In addition to the conclusion that it had no jurisdiction, the Committee considered that, in any event, on the materials before it, there was no reasonable basis for the complaint. I agree.
As the Committee identified in its reasons, Mr Neil provided no information upon which it might be said that in drafting the affidavit, Mr Kornacki knew, or ought to have known, its contents were false. At the oral hearing, the Tribunal pressed Mr Neil to identify what it was in para 10 of Mr Nugent's affidavit which was false. The falsity identified was said to be the assertion that Reward Insurance Ltd had a policy that there would be no reimbursement of any payments unless copies of relevant receipts were provided. Mr Neil explained that both he and Mr Nugent had historically provided copies of credit card statements to support reimbursement, and that that process met the company's policy. It would seem, therefore, that if 'relevant receipts' can be taken to include credit card statements, the statement in Mr Nugent's affidavit would appear to be accurate. The tenor of Mr Neil's submissions was that he had, in fact, provided his credit card statements, but reimbursement had not been made.
In various submissions either to the Committee or to the Tribunal, Mr Neil made reference to authorities which identify that a legal practitioner owes duties to the court and to the administration of justice, which override the lawyer's duty to his or her client. He also referred to texts on lawyers' professional duties which identify the requirement that practitioners must not mislead a court, and to do so amounts to unsatisfactory professional conduct or professional misconduct.
None of those duties can be doubted. The question, in this case, is not whether the relevant duties exist, but whether there is any basis for concluding that Ms Kornacki knowingly or recklessly breached those duties.
Mr Neil suggests that a legal practitioner should enquire into the veracity of assertions made by an opponent to an affidavit which the practitioner is preparing. Mr Neil referred to the passage in the text of GE Dal Pont, Lawyers' Professional Responsibility (2nd edition, 2001) at 458, where he said:
Lawyers must bring a proper degree of caution, even mild scepticism, to their clients' narrative of events. In other words, they must take reasonable steps to verify the clients' contentions, especially where the client is making serious allegations against another person. For example, in YVM (1994) 3NZLR 581 at 590 Kemm J found that one of the causes of a misleading affidavit in a custody and access dispute (which included allegations of child sexual abuse) was 'the unquestioning acceptance by the partner in the firm as to what the mother had to say'.
The assertion as to the existence of a policy for reimbursement of expenses referred to in para 10 of Mr Nugent's affidavit is not an assertion of the type which, as a matter of professional obligation, requires a legal practitioner to go behind a client's instructions and seek some form of independent verification. Nor is it likely to give rise to 'mild scepticism'.
I agree with the observations in the Committee's reasons that Mr Neil's real concern was with the truth of the evidence provided by the opponent. It is not uncommon for litigants to dispute the truth of assertions made by opponents in affidavits used in court proceedings. The fact that evidence given by affidavit might ultimately be rejected by a court or tribunal as untrue does not lead to a conclusion that a solicitor who has assisted in the preparation of that affidavit has acted in an unprofessional manner. It is true that when allegations of misconduct or criminal behaviour are to be made in an affidavit or pleading, a legal practitioner should satisfy himself or herself that there is a reasonable basis for the allegations to be made. The assertions in para 10 of Mr Nugent's affidavit were not in that category. If a legal practitioner has a basis to suspect that the instructions given for inclusion in an affidavit are untrue, then the solicitor should appropriately test the client's instructions before permitting the affidavit to be sworn. But here, Mr Neil's proposition appears to be that Ms Kornacki should have recognised that her client was dishonest, and not accepted his assertions on anything. The basis upon which she should have formed that view appears to be that Mr Neil, her client's opponent in litigation, had made allegations of dishonest conduct against her client. Allegations to that nature in litigation are common place. It is the court's function to determine who is telling the truth. The fact that allegations of that nature had been made by Mr Neil do not provide a basis for concluding that Ms Kornaci was obliged to seek independent verification at every assertion by her client. The assertion by a company director as to a practice or policy where his company is not something that might reasonably be expected to arouse suspicion as to its truth.
Mr Neil submitted that Ms Kornacki knew of the inaccuracy of the statement by reason of emails or facsimile transmissions to her after the affidavit was filed. One such document was an email dated 24 December 2008 from Ms Glasson to Ms Kornacki in which it was complained that para 10 of Mr Nugent's affidavit was 'somewhat misleading and deceptive'. The basis upon which it was said to have been inaccurate was that Mr Neil generally charged his expenses on credit card and the copies of the credit card statements were provided to the Chief Financial Officer of Reward Insurance Ltd. Ms Glasson also explained why she considered the statement to be inaccurate in a facsimile to the consumer representative of the Legal Services Board in Victoria dated 22 January 2009. The context of those documents clearly demonstrates that there was a factual dispute between Ms Kornacki's client and Mr Neil about arrangements for reimbursement of expenses. Mr Neil's position in these proceedings is essentially based on an underlying proposition that his assertions as to the true facts should be accepted by the Tribunal, and that Ms Kornacki should have accepted the assertions made by Ms Glasson on Mr Neil's behalf in preference to her instructions from the officers of Reward Insurance Ltd.

The factual dispute was a matter for the court. It appears that, because Mr Neil eventually paid the debt which forms the basis of the bankruptcy notice, the proceedings fell away and Mr Neil's cross claim was never resolved by the Court. Regardless of how they may ultimately have been resolved, we agree that, a certificated legal practitioner with considerable experience, Mr Neil should have been aware that resolution of factual issues of that nature should appropriately be resolved in the Federal Magistrates Court's proceedings, and not in the context of a complaint to a professional body.
I do not consider that the decision of the Committee, that the complaint against Ms Kornacki was unreasonable and vexatious, was wrong, or was 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.

The remedies sought by the applicant

As observed above, Mr Neil's application sought a range of orders which go beyond the orders which the Tribunal may make when exercising jurisdiction under the LP Act generally, or in relation to an application under s 435 in particular.
The extent of the Tribunal's functions and discretions on review under s 435 of the LP Act have been discussed by the Tribunal in two published decisions since the LP Act came into force. The first of those was Restifo and Legal Profession Complaints Committee [2009] WASAT 242, and the second was Greenwood and Legal Profession Complaints Committee [2010] WASAT 31. In neither of those cases was the Tribunal called upon to decide the question, given the conclusions reached.
In this case, while it is not necessary to decide the extent of the Tribunal's functions under s 435 of the LP Act, that question was the subject of detailed submissions by the Committee prior to the hearing, and it is desirable that the question be answered.
The issue arises in this way. Section 435 of the LP Act enables a person aggrieved by a decision of the Committee to apply to the Tribunal for a review of the decision. Since such an application involves a review of a decision, it comes within the Tribunal's review jurisdiction: s 17 of the SAT Act. By s 18 of the SAT Act, the Tribunal is required, in exercising its review jurisdiction, to deal with the matter in accordance with the SAT Act and the enabling Act (in this case, the LP Act).
Section 27 of the SAT Act provides that the review of a reviewable decision is to be by way of hearing de novo.
Section 29 of the SAT Act provides:
29. Powers of Tribunal on review
(1)The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision‑maker in making the reviewable decision.
(2)Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.
(3)The Tribunal may
(a)affirm the decision that is being reviewed;
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and
(i)substitute its own decision; or
(ii)send the matter back to the decisionmaker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate.
…
(5)The decisionmaker’s decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decisionmaker’s decision
(a)is to be regarded as, and given effect as, a decision of the decisionmaker; and
(b)unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect.
…
(9)To avoid doubt it is declared that this section and section 27 do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decisionmaker.
Section 30 of the SAT Act requires the decisionmaker to use its best endeavours to assist the Tribunal to make its decision on the review, and s 31 empowers the Tribunal to invite a decisionmaker to reconsider its decision.
The functions and discretions of the Committee, which are conferred upon SAT by s 29 of the SAT Act, are found in Pt 13 of the LP Act. Section 409 and s 410 of the LP Act provide for the making of complaints to the Committee. The Committee must give notice of the complaint to the practitioner concerned, except in certain circumstances: s 413 of the LP Act.
By s 415, the Committee is empowered to dismiss a complaint in certain circumstances, and required to dismiss a complaint if it is made more than six years after the conduct complained of (except in certain circumstances (s 411(2)), the conduct has been the subject of a previous complaint, or the complaint is not one which the Committee has power to deal with (s 415).
The Committee may suggest a process of mediation: s 417 LP Act. It may conduct an investigation: s 421 LP Act.
After an investigation of a complaint, the Committee may dismiss the complaint if it is satisfied that there is no reasonable likelihood that the practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct; or it is in the public interest to do so: s 425 LP Act.
Section 426 of the LP Act gives the Committee certain summary powers. That section provides:

426. Summary conclusion of complaint procedure

(1)This section applies if -
(a)the Complaints Committee -
(i)completes an investigation into the conduct of an Australian legal practitioner; and
(ii)is satisfied that there is a reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of unsatisfactory professional conduct (but not professional misconduct); and
(iii)is satisfied that the practitioner is generally competent and diligent; and
(iv)is satisfied that the taking of action under this section is justified having regard to all the circumstances of the case (including the seriousness of the conduct concerned) and to whether any other substantiated complaints have been made against the practitioner;
and

(b)the Australian legal practitioner concerned consents to the exercise of power by the Complaints Committee under this section.

(2)If this section applies, the Complaints Committee may do any one or more of the following -
(a)publicly reprimand the practitioner or, if there are special circumstances, privately reprimand the practitioner;
(b)order the practitioner to pay to the Board a fine of a specified amount not exceeding $2 500;
(c)make a compensation order;
(d)order that the practitioner seek and implement, within a period specified in the order, advice from the Board, or from a person specified in the order, in relation to the management and conduct of the practitioner’s practice, or the specific part or aspect of the practice specified in the order.

(3)If action is taken under subsection (2) in relation to a matter, no further action is to be taken under this Part with respect to the matter.
(4)An order made by the Complaints Committee may be enforced as if it were an order of the State Administrative Tribunal.

Section 428 of the LP Act gives to the Committee the power to refer matters to the Tribunal, regardless of whether it has conducted an investigation. The exercise by the Tribunal of the functions of the Committee gives rise to the possibility that in appropriate cases, the Tribunal on review under s 435 might determine in accordance with s 428, that the Committee should refer the matter to the Tribunal. The Tribunal would thus be referring a matter to itself.
That somewhat unusual position was discussed in Restifo in the following terms at [20] - [29] as follows:
20As that analysis demonstrates, the functions and discretions exercisable by the LPCC can be summarised as including the power to dismiss in certain circumstances (s 415 and s 425), impose a summary penalty (s 426), or refer the matter to the Tribunal (s 428 of the LP Act). In exercising its review jurisdiction, the Tribunal has the functions and discretions corresponding to those exercisable by the LPCC: see s 29(1) of the SAT Act.
21Obvious difficulties arise with the notion of the Tribunal exercising the LPCC's function under s 428 of the LP Act, which would require that the Tribunal, standing in the shoes of the LPCC, refer the matter to itself.
22When the LPCC refers a matter to the Tribunal, it does so in the Tribunal's original jurisdiction, and it assumes the conduct of the application. In a case where the LPCC has formed a view that there is no reasonable likelihood of the practitioner being found guilty of unsatisfactory professional conduct or professional misconduct, there may be practical difficulties in the Tribunal, if it were to form a different view, directing the LPCC to refer the matter to the Tribunal for adjudication. If, however, on a review under s 435 of the LP Act, the Tribunal has only the functions and discretions of the original decisionmaker, and it forms a view that there is a reasonable likelihood that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the only apparent function that the Tribunal could perform is to direct the LPCC to refer the complaint to the Tribunal, or in appropriate cases, to seek the practitioner's consent to deal with the matter under s 426 of the LP Act.
23There may be an argument that the provisions of Pt 13 of the LP Act should be construed as enabling the Tribunal, on an application for review under s 435 of the LP Act, to, in appropriate cases, go beyond the functions and discretions of the LPCC, and make a finding of unsatisfactory professional conduct or professional misconduct, rather than merely reach the conclusion open to the LPCC that there is a reasonable likelihood that the practitioner would be found guilty of conduct of that nature.
24That argument would involve the Tribunal going beyond the powers conferred on the Tribunal by s 29 of the SAT Act, and does not sit well with s 29(5). However, by s 5 of the SAT Act, an enabling Act prevails where there is any inconsistency between the SAT Act and the enabling Act. There is an argument that in the context of a s 435 application, limitation of the powers of the Tribunal to those exercisable by the LPCC would result in unworkable outcomes. That is because, as mentioned above, in cases where the summary conclusion of the complaint under s 426 of the LP Act was inappropriate, the Tribunal's only option would be to refer the matter to itself, or perhaps to send the matter back to the LPCC for reconsideration in accordance with directions or recommendations of the Tribunal pursuant to s 29(3)(c)(ii), or reconsideration generally pursuant to s 31 of the SAT Act. The difficulty with that latter course is that the LPCC would, in effect, be required to prosecute an application in which it had formed the view that it has no reasonable prospect of success. A further difficulty with that course is that the Tribunal must necessarily have given expression to a view as to the likely outcome in respect of a matter upon which it would be subsequently asked to adjudicate. A perception of bias may very well arise. That perception might be removed by ensuring that the Tribunal hearing the referred matter, is differently constituted than the Tribunal which dealt with the matter on the s 435 review, but the position is not satisfactory.
25A further reason why it may be desirable that the Tribunal's jurisdiction should extend beyond the jurisdiction of the original decisionmaker is the inefficiency, cost and delay, which would be involved in the Tribunal adjudicating on the question of a reasonable likelihood of a finding against the practitioner, which, as this case shows, might require a hearing and oral evidence, and then being required to rehear much of the same evidence following referral of the matter to the Tribunal.
26In those circumstances, it may be arguable that the scheme of the LP Act in relation to applications for review under s 435 is inconsistent with s 29 of the SAT Act and that, on a proper construction of the LP Act, the Tribunal is empowered, in appropriate cases, to determine the ultimate question of whether or not a practitioner has engaged in conduct warranting any of the sanctions open to the Tribunal under Pt 13 of the LP Act.
27If that argument were upheld, it would not follow that, in every application under s 435 of the LP Act, the Tribunal must necessarily conduct a full hearing into the allegations being made by the person aggrieved by the LPCC's decision. There will be cases where it is sufficient for the Tribunal to review the papers considered by the LPCC. In some cases, the papers will contain sufficient information as to the complainant's and the practitioner's respective positions to make an assessment of the likelihood of a finding against the practitioner without the necessity of further evidence or submissions, particularly oral submissions. For example, where a complaint that has been dismissed by the LPCC on the basis that it is not in the public interest to refer a matter to the Tribunal, that question may be able to be determined simply by regard to the nature and particular details of the allegations without any necessity to consider whether the allegations might be sustainable. Similarly, it may be readily demonstrable from the materials considered by the LPCC that the complainant's allegations have no reasonable likelihood of being established before the Tribunal.
28It is not necessary, or appropriate, to reach a conclusion in this case as to the nature and extent of the Tribunal's powers on a review under s 435 of the LP Act. It is not necessary because of the conclusion that we have reached on the merits of Mrs Restifo's complaint which we set out below. It is not appropriate because we have not had submissions on the point from the parties, and in particular from the LPCC. It is a matter that will need to be considered with the benefit of decided submissions in an appropriate case.
29The uncertainty, and potential inefficiencies, of the application of s 435 of the LP Act and Pt 3 Div 3 of the SAT Act should be given some clarification by legislative amendment.
In Greenwood, the Tribunal referred to the arguments mooted in Restifo and made the following further observations at [20] - [24]:
20The modification of the operation of a provision of the SAT Act may be achieved by express words, or by implication from the provisions of the enabling Act: Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208 (Southside Autos) at [79] and at [82] - [85] (Buss JA, McLure JA and Newnes JA agreeing). Such an implication might be discerned from an inconsistency between a provision of the SAT Act and a provision of the enabling Act: see, for example, Southside Autos at [82] [85] (Buss JA, McLure JA and Newnes JA agreeing). In that event, the enabling Act provision would prevail: s 5 of the SAT Act.
21In Restifo at [24] [25], the Tribunal noted that there may be inconvenience to the parties to a review and inefficiency in the manner in which complaints against legal practitioners are dealt with by the Tribunal, if the Tribunal's powers on a review are confined to the exercise of the powers of the LPCC under s 424 of the LP Act. There may be an argument that this inconvenience or inefficiency amounts to an inconsistency between the provisions of the LP Act and the SAT Act, so as to manifest an intention to modify the operation of the SAT Act. An alternative view, however, might be that notwithstanding that some inconvenience or inefficiency may result, the provisions of Pt 13 of the LP Act would nevertheless be capable of application if the Tribunal's powers on a review under s 435 correspond to those of the LPCC under s 424 and s 425.
22A further consideration relevant to the argument identified in Restifo would be the inter-relationship between Pt 13 of the LP Act and the SAT Act. It is well-established that where two or more enactments comprise an overlapping legislative scheme, the enactments should be construed accordingly, and so as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation: Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 722 and at 723 724 (Kirby P), and see also Southside Autos at [64] (Buss JA) and the cases cited therein.
23Two other provisions of the SAT Act may also be relevant to the question whether the Tribunal's powers go beyond those of the LPCC under s 424 and s 425 of the LP Act. By virtue of s 29(2) of the SAT Act, s 29(1) does not limit the powers given by the SAT Act or the LP Act to the Tribunal. Further, the orders which may be made by the Tribunal under s 29(3) include 'any order the Tribunal considers appropriate'.
24Irrespective of the outcome of arguments concerning the scope of the Tribunal's functions and discretions on a review under s 435 of the LP Act, it is clear that at the least, those functions and discretions include those under s 424 and s 425 of the LP Act. The conclusions we have reached on the allegations set out in the SAT complaint, and the orders which we consider should be made in this case, fall within the scope of those functions and discretions. It is, therefore, unnecessary for us to determine whether the Tribunal's functions and discretions on a review under s 435 extend beyond those of the LPCC under s 424 and s 425 of the LP Act.
The Committee, in its written submissions, recognised a 'peculiar outcome in that one possible result under s 435 of the LP Act, may be for the Tribunal (standing in the shoes of the Committee) referring a disciplinary matter to itself'. It submitted however, that that result was necessitated by the provisions of the LP Act.
Section 438(1) of the LP Act confers jurisdiction on the Tribunal to make a finding of unsatisfactory professional conduct or professional misconduct. However the jurisdiction to make orders by way of disciplinary penalty exists where the Tribunal is satisfied as to the guilt of the practitioner 'after it has completed a hearing in relation to a referral under this Part'. Thus, as the Committee observes, the Tribunal can only make disciplinary orders under s 438 (and in turn s 439, s 440 and s 441) after completion of a hearing in relation to a referral under Pt 13 of the LP Act. In other words, only after a hearing conducted in the Tribunal's original jurisdiction. An application under s 435 is an application in the Tribunal's review jurisdiction. The Committee thus submits that, on the proper construction of the LP Act, the functions and discretions of the Tribunal under s 435 are limited to the functions and discretions exercisable by the Committee, and do not extend to making findings and imposing penalties in the way that the Tribunal can in is original jurisdiction.
In my view, there is merit in that submission. To conclude that the Tribunal may on an application for review under s 435, proceed to hear and determine finally the question of whether or not a practitioner is guilty of unsatisfactory professional conduct or professional misconduct requires that the pre-condition to the imposition of disciplinary penalties under s 438, s 439, s 440 and s 441 be ignored. It also requires that an inconsistency be found between the provisions of the SAT Act concerning the exercise of the Tribunal's review jurisdiction, and the provisions of the LP Act. In Restifo, the potential for inconsistency was said to arise by reason of the inconvenience or inefficiency associated with the notion of the Tribunal referring a matter to itself, and calling upon the Committee to prosecute a complaint before the Tribunal in respect of which the Committee had formed a view that that complaint lacked merit.

Those practical difficulties are real. They can, however, be dealt with by joinder of the complainant to any referral, with a direction that the complainant have the carriage of the referral. Whether or not that course might be appropriate in any given case would depend upon the individual circumstances of the case.
In Greenwood, the Tribunal referred to the Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 (Permanent Trustee Co) at 722 - 724. The relevant passage from that decision was summarised in Southside Autos (1981) Pty Ltd v Commissioner of State Revenue (2008) WASCA 208 (Southside Autos) by Buss JA with McClure JA and Newnes JA agreeing) as follows (at [65]):
65In Commissioner of Stamp Duties v Permanent Trustee Co Ltd, Kirby P said:
Upon the hypothesis (which is admittedly often sorely tried) that there is a rational integration of the legislation of the one Parliament, it is proper for courts to endeavour to so construe inter related statutes as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation. This is the approach which I take to the task of statutory interpretation in hand (722).
Later, his Honour said in relation to the legislation under consideration in the appeal before the court:
The result is that, in construing the legislation under consideration here, I will prefer that construction which is available in the language used and which facilitates the sensible operation together of the four statutes mentioned, avoiding inefficiency and the capricious operation of revenue law which would seriously impede or discourage the availability of beneficial statutory provisions for the sale or partition of property held by co-owners. In the case of ambiguity of the legislation I consider this to be the modern approach which this Court should adopt in implementing the will of Parliament. We should presume that Parliament intended its legislation to operation rationally, efficiently and justly, together (723 - 724).
Potential inefficiency and delay, may be thought to exist when consideration is given in the context of a review under s 435 of the LP Act, as to the merits of any allegation of unsatisfactory or unprofessional conduct or professional misconduct, and subsequent referral and hearing of the same allegation is required by virtue of the Tribunal exercising the Committee's power under s 428 of the LP Act. On the other hand, if in every case in which a dissatisfied complainant pursue his or her allegations by review under s 435, the practitioner concerned must necessarily prepare a full defence to the allegations as though a referral had already been made to the Tribunal under s 428, injustice and inefficiency may result. Where the Committee has assessed a complaint to be without merit, it would not seem reasonable to impose upon the practitioner concerned the burden of preparing to fully defend the allegations just in case the threshold question is decided in the complainant's favour (with the risk that the Tribunal may then finally determine the allegation).
In my view, the principles discussed in Southside Autos and Permanent Trustee Co do not support a construction of the LP Act and the SAT Act that leads to the conclusion that the Tribunal's powers on a review under s 435 go beyond the functions and discretions of the Tribunal on review as set out in the SAT Act.
Nor do I think that s 29(2), or s 29(3) of the SAT Act alters that conclusion. As the Tribunal in Greenwood observed, by virtue of s 29(2) of the SAT Act, s 29(1) does not limit the powers given by the Tribunal or the LP Act to the Tribunal. The Tribunal also observed that the order that can be made by the Tribunal pursuant to s 29(3) include, in any case, 'any order that the Tribunal considers appropriate'. Section 29(2) does not extend the powers conferred by the enabling Act. For reasons I have discussed, the powers of the Tribunal to impose disciplinary penalties (other than summary powers exercisable by the Committee pursuant to s 426 are conditioned by the requirement to first complete a hearing in relation to a referral. Nothing in s 29 alters that requirement. Section 29(2) does not confer any power to go beyond the powers under the enabling Act or the SAT Act which are applicable to applications of this character and type of the matters before the Tribunal when the power is to be exercised. Section 29(3) does not give the Tribunal any power to make orders at large. The Tribunal is always confined to orders open to it under the enabling Act or the SAT Act in proceedings of the character concerned.
Against that background, it is clear that the various orders sought by Mr Neil in his application could not be made in these proceedings.
The first order sought by Mr Neil was that the Tribunal should acknowledge that he is 'a victim of crime for the purposes of the Victims of Crime Act 1994 (WA)'. The power to make such an acknowledgment does not exist under either the SAT Act or the LP Act. Even if it had, it would be obviously inappropriate for the Tribunal to make findings, or act upon any assumptions, that the conduct by a person who is not party, or even a witness, before the Tribunal amounts to criminal conduct. Even if the Tribunal were to conclude that Mr Neil was a victim of crime, the consequence would be that, by virtue of s 3 of the Victims of Crime Act 1994 (WA), the Tribunal would be authorised to have regard to and apply the guidelines set out in Sch 1 of that Act. Those guidelines are generally directed to the treatment of victims in the context of criminal proceedings. The guidelines do provide that the victim should be treated with courtesy and compassion and with respect for the victim's dignity. Courtesy and respect are accorded to all who come before this Tribunal. Mr Neil is no exception. He is entitled, like every other citizen to expect such treatment in his dealings with the Tribunal. He does not need to rely on the Victims of Crime Act 1994 (WA) for that purpose.
However, in prosecuting serious complaints against legal practitioners, Mr Neil is required to present clear and cogent allegations, conduct the proceedings in a timely way so as to avoid undue prejudice to other parties involved in the proceedings, and extend similar courtesy and respect to others involved in the proceedings.

Provision of copies of documents

Mr Neil also sought an order that the respondent provide to him copies of all documents put before the Committee by the Law Complaints Officer leading to the decision. This issue occupied a deal of Mr Neil's submissions and correspondence with the Tribunal and the Committee. In particular, Mr Neil sought access to the response by Ms Kornacki to his complaints.
In order to enable the Tribunal to determine whether that document should be provided to Mr Neil, it was provided to the Tribunal in a sealed envelope. It remains in that envelope, and I have not reviewed it. I do not consider it necessary to do so, and I have not relied upon it in reaching the decision as to the lack of the Committee's jurisdiction to deal with this matter and as to the unreasonableness of Mr Neil's complaint.
The Committee initially did not propose sending the complaint to Ms Kornacki for comment until it first heard from Mr Neil details of the basis upon which he attributed knowledge of falsity of Mr Nugent's affidavit to Ms Kornacki. The response to the request for information as to that basis was a demand by Mr Neil through Ms Glasson to refer the matter to Ms Kornacki. The basis for asserting the requisite knowledge was not provided. The Committee then wrote to Ms Kornacki for the purpose of advising her of the existence of the complaint. Apparently, she responded by way of a letter. She apparently indicated she did not want her response released to Mr Neil.
There is nothing to suggest that the Committee relied upon Ms Kornacki's reply in reaching the decision which it did, and it expressly said that it had not. As already noted, nor have I.
I do not accept that there is any obligation on the Committee, in the circumstances where it has determined that it has no jurisdiction to deal with the matter, to disclose to Mr Neil a confidential communication.
The same applies to the advice which was apparently provided by Ms Whitney to the Committee when it made its decision. The Committee declined to disclose that advice on the basis of legal professional privilege. What advice the Committee might have received is, in any event, irrelevant to the question of jurisdiction which forms the basis of the Committee's decision. Again, I have not seen the document concerned and thus do not rely on it in reaching the decision set out above.
In circumstances where the Tribunal is dealing only with the question of leave to make an application for review, and that leave has been declined, the applicant has no entitlement to receive those documents.
Mr Neil also sought an order that the Committee disclose the names of the members of the Committee who made the decision. As I understand it, the Committee provided that information voluntarily during the course of the proceedings. That part of the application falls away.
Various other orders were sought, but in light of my conclusion on jurisdiction, they must necessarily fall away.
In emailed submissions through Ms Glasson received 15 February 2010, a suggestion is made that Mr Neil wanted another solicitor to provide a statement as to various matters. Given my conclusion on jurisdiction, nothing that that solicitor might say could alter that conclusion. Accordingly, to the extent that that correspondence might be treated as an application to re-open the hearing, the application is refused.

Conclusion

For the reasons set out above, the application by Mr Neil for leave to commence an application for review of the Committee's decision dated 2 June 2009 should be dismissed.

Order

1.The application for leave to review the decision of the Legal Profession Complaints Committee dated 2 June 2009 is dismissed.

I certify that this and the preceding [86] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT