| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : NEIL and LEGAL PROFESSION COMPLAINTS COMMITTEE (No 2) [2011] WASAT 43 MEMBER : JUSTICE J A CHANEY (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 16 MARCH 2011 SUPPLEMENTARY
DECISION : 18 MAY 2011 FILE NO/S : VR 141 of 2009 BETWEEN : PETER CHRISTISON NEIL Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
PAUL HOPWOOD
Second Respondent
Catchwords: Practice and procedure - Application that President disqualify himself - Apprehended bias - Previous decisions unfavourable to applicant
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Legislation: Legal Profession Act 2008 (WA), s 407(2)(a), s 435
State Administrative Tribunal Act 2004 (WA), s 27, s 31 Result: Application for recusal dismissed Category: B
Representation: Counsel:
Applicant : Self-represented
First Respondent : Ms P Le Miere
Second Respondent : Mr H Jackson
Solicitors:
Applicant : Self-represented
First Respondent : Law Complaints Officer
Second Respondent : N/A
Case(s) referred to in decision(s):
British American Tobacco Australia Services Ltd and Laurie [2011] HCA 2
Chin v Legal Practice Board (WA) [2011] WASCA 110
JRL; Ex parte CJL (1986) CLR 342
Neil and Legal Profession Complaints Committee [2010] WASAT 39
Neil and Legal Profession Complaints Committee [2011] WASAT 25
Neil and Legal Profession Complaints Committee [2011] WASAT 43
Neil v Legal Profession Complaints Committee [No 2] [2011] WASCA 66
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 The application in these proceedings is for review of a decision of the Legal Profession Complaints Committee to dismiss Mr Neil's complaints about a legal practitioner, Mr Paul Hopwood. 2 Mr Peter Neil sought an interim order that the President of the Tribunal disqualify himself from the further hearing of Mr Neil's application on the basis of the existence of a perception of bias. Mr Neil also sought orders adjourning the further hearing of the application pending determination by the Legal Profession Complaints Committee of further complaints by Mr Neil against Mr Hopwood and another practitioner. Further, he sought an order pursuant to s 31 of the State Administrative Act 2004 (WA) referring the present matter back to the Legal Profession Complaints Committee for further investigation. 3 The perception of bias was said by the applicant to arise from previous decisions adverse to Mr Neil which had been delivered by the President concerning complaints against other legal practitioners. All of the other legal practitioners had been involved in some way with litigation concerning Mr Neil and a company called Reward Insurance Limited and the directors of that company. 4 The President examined his earlier decisions and findings, and concluded that the proper application of the principles applicable to disqualification on the ground of apprehended bias did not require him to disqualify himself from the further hearing of this application. 5 The President declined to adjourn the further hearing of the application indefinitely or to refer the matter back to the Legal Profession Complaints Committee on the basis that that course would not be consistent with the statutory objectives of the Tribunal, and refusal of those applications would work no unfairness to Mr Neil.
The application 6 The applicant, Mr Peter Neil, seeks an order that I disqualify myself from hearing this application 'owing to a prejudgment of issues and a perception of bias on the grounds set out in the High Court decision of British American Tobacco Australia Services Ltd and Laurie [2011] HCA 2' (BATAS v Laurie). (Page 4)
7 Mr Neil also sought orders adjourning the application indefinitely in view of the fact that the Legal Profession Complaints Committee (LPCC) was investigating further complaints made by him against the practitioners who are the respondents to these proceedings, and seeking to have the complaint the subject of these proceedings referred back to the LPCC for further investigation under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The disqualification application 8 In its terms, the interim application lodged by Mr Neil relies upon 'a perception of bias' as the ground for disqualification. In his submissions to the Tribunal, Mr Neil explained that that perception arises from the findings as to his credibility, and in particular an earlier finding that a complaint made by him was vexatious. His submissions went somewhat further, and tended to suggest a concern of actual bias in that, he asserted, I was 'no longer neutral' in relation to his applications. Much of his oral submissions were directed to demonstrating that conclusions reached by the Tribunal in earlier decisions, and by the LPCC in relation to Mr Neil's complaints, were contrary to the evidence and thus wrong. 9 The principles to be applied in determining whether a judge is disqualified on the basis of bias were recently explained by Newnes JA in Chin v Legal Practice Board (WA) [2011] WASCA 110 (Chin) at [3] - [5] where his Honour said: The test to be applied in determining whether, in a case like the present, a judge is disqualified by reason of the appearance of bias is whether a fairminded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 492. The plurality in that case pointed out (493) that in applying that test two things need to be remembered: the observer is taken to be reasonable, and the person being observed is a professional judge whose training, tradition and oath or affirmation require the judge to discard the irrelevant, the immaterial and the prejudicial. In Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352, Mason J said that there may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he or she is likely to decide issues in a particular case adversely to one of the parties. But Mason J pointed out that this did not mean either that the judge will approach the issues in the case otherwise than with an impartial or unprejudiced mind in the sense in which that expression is used in the authorities, or that the judge's previous decisions provide an acceptable basis for inferring that there is a reasonable (Page 5)
apprehension that the judge will approach the issues in that way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be firmly established. Those comments were indorsed in Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78, 86, by Brennan, Gaudron and McHugh JJ. Where a party contends that actual bias exists, the applicant must show that the mind of the decision-maker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, 532 [72]. Actual bias will exist where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant: see Jia Legeng [36], [72]. Such an allegation must be 'distinctly made and clearly proved': Jia Legeng [69], [127]. 10 Mr Neil made particular reference to the recent decision of the High Court in BATAS v Laurie and the principles explained in that case. Although BATAS v Laurie was decided by a majority, there does not appear to be any difference in the views of the Justices of the High Court as to the applicable principles, but rather only as to the application of those principles to the particular facts of the case. The principles as outlined in BATAS v Laurie reflect the principles explained by Newnes JA in Chin. BATAS v Laurie involved a claim by the widow of Mr Laurie for damages against BATAS. In her statement of claim, Mrs Laurie had alleged, amongst other things, that BATAS had a policy of destroying documents in its possession which might have evidenced its negligence. That allegation was made in support of a claim for aggregated damages. Judge Curtis was allocated to deal with pre-trial management and the trial of the action. An application was made for Judge Curtis to disqualify himself from further hearing the matter on the basis of an earlier determination by him in unrelated proceedings. In an interlocutory hearing in those other proceedings concerning discovery of documents, his Honour concluded the state of the evidence before him, that in 1985 BATAS had drafted or adopted a document retention policy for the purpose of a fraud. It was on the basis of that finding that BATAS sought to have Judge Curtis disqualify himself. By a majority of three to two, the High Court upheld BATAS' contention. In doing so, the majority said at [145]: Whenever a judge is asked to try an issue which he or she has previously determined, whether in the same proceedings or in different proceedings, and whether between the same parties or different parties, the judge will be (Page 6)
aware that different evidence may be led at the later trial. Judge Curtis's express acknowledgment of that circumstance does not remove the impression created by reading the judgment that the clear views there stated might influence his determination of the same issue in the Laurie proceedings. Allsop P's conclusion was correct. In addition to the possibility of the evidentiary position changing, a reasonable observer would note that the trial judge's finding of fraud was otherwise expressed without qualification or doubt, that it was based on actual persuasion of the correctness of that conclusion, that while the judge did not use violent language, he did express himself in terms indicating extreme scepticism about BATAS's denials and strong doubt about the possibility of different materials explaining the difficulties experienced by the judge, and that the nature of the fraud about which the judge had been persuaded was extremely serious. In the circumstances of this unusual case, a reasonable observer might possibly apprehend that at the trial the court might not move its mind from the position reached on one set of materials even if different materials were presented at the trial - that is, bring an impartial mind to the issues relating to the fraud finding. Johnson v Johnson185 is distinguishable. 11 Mr Neil contends that the same conclusion should be reached in relation to my disqualification in this matter. 12 It is not enough to justify disqualification that I have delivered decisions adverse to Mr Neil in different proceedings or even in the present proceedings. Rather, it is necessary to examine findings made in those decisions to ascertain whether those findings might cause the hypothetical observer to conclude that I might not bring an impartial mind to the issues for determination in the present proceedings. 13 There are three published decisions which I have delivered concerning Mr Neil. Those decisions are: 14 Kornacki concerned a question of leave pursuant to s 435 of the Legal Profession Act2008 (WA) (LP Act) to review a decision of the LPCC to dismiss a complaint which Mr Neil had made against a Victorian solicitor, Ms Kate Kornacki. The complaint made by Mr Neil was that Ms Kornacki had prepared an affidavit on behalf of a client which she (Page 7)
knew, or ought to have known, contained false information. The client concerned was a Mr Murray Nugent, a director of Reward Insurance Limited, which had commenced bankruptcy proceedings against Mr Neil in the Federal Court. 15 The complaint was dismissed by the LPCC summarily on the basis that it lacked jurisdiction to deal with the allegations because the requirements of s 407(2)(a) of LP Act, which are prerequisites to the exercise of jurisdiction by the LPCC in relation to conduct occurring partly in this jurisdiction and partly in another jurisdiction, had not been met. That conclusion was upheld by me in Kornacki, and Mr Neil's appeal to the Court of Appeal against that decision has been dismissed: Neil v Legal Profession Complaints Committee [No2] [2011] WASCA 66. 16 The LPCC also concluded that Mr Neil's complaint in relation to Ms Kornacki was unreasonable and vexatious. It reached that conclusion because it considered there to be no reasonable basis for the complaint, and in particular there was no evidence that the practitioner knew or should have known that the affidavit contained false information. In the Kornacki decision at [46] - [49], I considered that issue, and concluded that the decision of the LPCC that the complaint against Ms Kornacki was unreasonable and vexatious had not been demonstrated to be wrong or attended by sufficient doubt to justify a grant of leave, even if the jurisdictional bar under s 407 of the LP Act did not exist. 17 At the hearing in this matter, Mr Neil placed considerable emphasis on that latter aspect of the Kornacki decision. 18 The Skinner decision concerned an application by Mr Neil for leave to review a decision of the LPCC dismissing complaints against two solicitors, Mr Skinner and Ms Bartlett. Ms Bartlett was a partner in the firm Jackson McDonald, and Mr Skinner was an employed solicitor in that firm. Jackson McDonald acted as Perth agents for Reward Insurance's Melbourne solicitors in relation to the litigation with Mr Neil. Leave was required because the complaints against one of the practitioners, Ms Saraceni had been found to be vexatious and unreasonable, and the complaints against the other two practitioners had been found to be unreasonable. 19 The decision involved an examination of the complaint against Mr Skinner and the responsibility of Ms Bartlett and Ms Saraceni in relation to Mr Skinner's conduct. In addressing the question of leave, I (Page 8)
had regard to the apparent merits of the complaint and concluded that the complaints against Mr Skinner had no reasonable basis and were thus unreasonable. As the complaints against Ms Bartlett and Ms Saraceni were essentially of a failure to properly supervise or intervene in the conduct of Mr Skinner, they too were found to be unreasonable. In relation to Ms Saraceni, who I found to have had no personal knowledge of any of the matters the subject of complaint, or supervisory responsibility for them, I concluded that the complaint against her was misconceived and was both unreasonable and vexatious. 20 The Cocks decision was delivered in this matter. The complaints against Mr Cocks and Mr Hopwood were dealt with together by the LPCC. The LPCC dismissed the complaint against Mr Cocks as being unreasonable, but did not reach that conclusion in relation to the complaint against Mr Hopwood. Accordingly, leave to review the decision so far as it relates to Mr Cocks was required by s 435 of the LP Act. The Cocks decision concerned that application for leave. After examining the extensive materials filed in support of the application, I concluded that no basis had been disclosed upon which it might be said that the LPCC's decision, so far as it related to Mr Cocks, was wrong or that its correctness was in doubt, and therefore that the requirement for the grant of leave was not satisfied. Central to that conclusion was a finding that Mr Cocks had very little personal involvement in the conduct of the file, which had principally been handled by another partner of his firm and by Mr Hopwood, under that partner's supervision. The decision did not involve any examination of Mr Hopwood's conduct.
Is there a reasonable apprehension of bias? 21 As already observed, Mr Neil emphasised findings that other complaints made by him were found to be vexatious, and contends that those findings gave rise to an apprehension of bias. 22 In oral submission, he contended that he had been found to lack credibility and to be unreliable. All three previous decisions have concerned the question of leave. In accordance with the usual procedures of the Tribunal, those questions have been dealt with on the papers. It is not correct, therefore, to suggest that any of the decisions have involved questions of credibility or reliability of evidence. Rather they have proceeded, as is normal in leave applications, by reference to documentary materials, and the submissions of the parties on the question of leave. (Page 9)
23 It is correct that I have, in previous decisions, affirmed the LPCC's view that particular complaints by Mr Neil have been unreasonable, and in two cases, vexatious. Those conclusions have been reached after a detailed analysis of the particular allegations, and the materials related to those allegations. While it is true that all of these complaints arise in connection with the conduct of a suite of litigation between Mr Neil and Reward Insurance and its directors, each allegation against each practitioner necessarily requires consideration of particular conduct by the practitioner involved. It cannot be said that any conclusion or finding made by me in earlier decisions is a finding as to the issues arising in relation to the complaint against Mr Hopwood. The question of leave, including the question of whether a complaint is unreasonable or vexatious, does not arise in the complaint against Mr Hopwood. In that respect, this case can be distinguished from the BATAS decision. 24 In Chin, Newnes JA referred to JRL; Ex parte CJL(1986)CLR342 at 352 where MasonJ referred to the possibility that previous decisions of a judicial officer on issues of fact or law may generate an expectation that a particular case may be decided adversely to one of the parties. An example of such a situation is where the judicial officer may have reached a conclusion as to the proper construction of a statutory provision which is adverse to the construction contended for by one party. As MasonJ observed, even in those cases, a reasonable apprehension that the issue will not be approached with an impartial and unprejudiced mind does not necessarily follow. But in my view, the previous decisions made in relation to MrNeil's complaints against other practitioners do not fall in the category of cases referred to by MasonJ. An examination of the reasons for decision delivered in each case reveals that consideration has been given to the particular allegations, and the facts disclosed on the materials related to those allegations, and a conclusion reached on the basis of that analysis. In my view, a reasonable observer would not conclude that the present matters of complaint would be dealt with other than by an impartial and unprejudiced approach to assessment of the particular complaints and the facts revealed on the materials before the Tribunal. It is not to the point that MrNeil considers that the conclusions reached in earlier decisions were wrong. No factual issue has been identified in the present application concerning Mr Hopwood which has been the subject of any finding either of fact or law, in any earlier decision. 25 Accordingly, I do not consider that it is necessary, or appropriate, that I disqualify myself from further dealing with the present proceedings. (Page 10)
Adjournment or referral under s 31 26 I indicated at the hearing of the matter that I did not propose to accede to Mr Neil's application to adjourn the application against MrHopwood indefinitely, or to refer the matter back to the LPCC for further consideration. The reason for that conclusion is as follows. 27 MrNeil has made a further complaint to the LPCC that MrCocks and MrHopwood, by their joint letter of 6July2009 which responded to the original complaints by Mr Neil about them, misled the LPCC. The misleading assertions are said to be as to when the firm ceased acting for MrNeil, and when MrHopwood became aware of queries made by Mr Neil concerning the service date of an affidavit in proceedings in the RewardInsurance litigation. As I understand it, MrNeil contends that that allegedly misleading information influenced the LPCC's decision, or at least was relevant to its determination of the original complaint. 28 Proceedings before this Tribunal for review of a decision are heard denovo - see SATAct s27. To the extent that the alleged misleading assertions are relevant to the determination of whether there is a reasonable likelihood of a finding against MrHopwood, it is open to MrNeil to put forward arguments and materials to demonstrate the inaccuracy of the response to the complaint. It is not necessary for the LPCC to deal with MrNeil's fresh complaint before the Tribunal determines the present complaint. Mr Hopwood, through his counsel, submitted that he wished to have the matters resolved quickly given the delays which have already occurred while the question of leave in relation to MrCocks was being dealt with. MrHopwood is entitled to have the complaints against him resolved without undue delay. 29 For those reasons, I did not consider it appropriate to further delay the resolution of the complaints concerning MrHopwood. 30 Nor do I consider that it is appropriate to refer the present complaint back to the LPCC for further consideration. The LPCC does not support that course of action. If the complaint were to be referred back to the LPCC, its function would be to determine whether there is a reasonable likelihood that Mr Hopwood would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct. If it concluded that there was no likelihood of a finding against Mr Hopwood, then these proceedings would simply continue. If it decided that there was a reasonable likelihood of a finding against Mr Hopwood, the complaint against him would be determined either by this Tribunal or by the LPCC in its summary jurisdiction. A right of review of any summary (Page 11)
decision would exist to the Tribunal. There is, therefore, a distinct likelihood that, following reconsideration, one way or another, the Tribunal would be required then to determine the complaint. In practical terms, therefore, nothing but delay is to be gained by a referral back to the LPCC under s 31 of the SAT Act. That course is, therefore, not appropriate. There is no impediment to dealing with the complaint concerning Mr Hopwood without any resolution of the further complaints made by Mr Neil to the LPCC.
Orders 1. The respondent's application that the President of the Tribunal disqualify himself from further hearing the complaint concerning MrHopwood is dismissed. 2. The application for adjournment of the proceedings indefinitely, and for referral back to the Legal Profession Complaints Committee under s31 of the State Administrative Tribunal Act 2004 (WA), is dismissed. |