Neil v Legal Profession Complaints Committee - [2017] WASCA 109

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: NEIL -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2017] WASCA 109

CORAM: MITCHELL JA
BEECH JA

HEARD: 15 JUNE 2017

DELIVERED : 15 JUNE 2017

PUBLISHED : 19 JUNE 2017

FILE NO/S: CACV 65 of 2017

BETWEEN: PETER CHRISTISON NEIL
Appellant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
Respondent

ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :JUSTICE J C CURTHOYS (PRESIDENT)

MR M SPILLANE (MEMBER)
MS R MOORE (MEMBER)

Citation :NEIL and LEGAL PROFESSION COMPLAINTS COMMITTEE [2017] WASAT 48 (S)
File No :VR 193 of 2015

Catchwords:

Application for stay of orders of State Administrative Tribunal - Professional misconduct - Failing to provide advice - Charging for advice not provided

Legislation:

Nil

Result:

Application refused

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr A J Musikanth

Solicitors:

Appellant: In person
Respondent: Legal Profession Complaints Committee

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

Centex Australasia Pty Ltd v Commissioner of Consumer Protection [2017] WASCA 79
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
DKG v SJB [2016] WASCA 149
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
I v Y [2017] WASCA 75
Legal Profession Complaints Committee v Gandini [2012] WASCA 247
Legal Profession Complaints Committee v Rayney [2017] WASCA 78
Neil v Nott (1994) 68 ALJR 509
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Taylor v Taylor (1979) 143 CLR 1

REASONS OF THE COURT: On 15 June 2017, we dismissed the appellant's application in an appeal filed on 12 June 2017, and ordered the appellant to pay the respondent's costs of the application fixed in the sum of $2,000. These are our reasons for making those orders.

Background

On 17 March 2017, the State Administrative Tribunal found that the appellant had engaged in professional misconduct. The Tribunal found that the appellant failed to provide legal advice he had been retained to give to a client, and then invoiced the client when not entitled to do so because he did not carry out the work for which he was retained.
The Tribunal's finding followed a hearing which had been undertaken on 13 February 2017, which the appellant did not attend.
On 2 May 2017, the Tribunal ordered that, effective from 30 days from the date of the order, the appellant's practising certificate would be subject to a condition that he:
only [practise] law as an employed solicitor in the employment of and supervised by a practitioner with a minimum of ten years' experience, approved in writing by the Legal Practice Board of Western Australia.
The condition provided that, at the conclusion of one year, the appellant should give the Legal Practice Board 42 days' notice of any intention to engage in practice other than as an employed solicitor. The Tribunal also ordered the appellant pay a fine of $5,000 to the Board by 15 May 2017. The Tribunal ordered the appellant to pay the costs of the Legal Profession Complaints Committee fixed at $10,218.90 by 15 May 2017. We shall refer to the orders made on 2 May 2017 as the penalty orders.
The appellant has appealed to this court against both the Tribunal's finding of professional misconduct and the penalty orders. The appellant has also instituted a separate appeal against an alleged refusal by the Tribunal, on 10 January 2017, to order the Committee to provide him with further and better particulars of its complaint and to order a stay of the Tribunal proceedings.
The appellant then applied for a stay of the penalty orders, pending the resolution of his appeals. The hearing on 15 June 2017 dealt with that application.

Facts found by the Tribunal

The Tribunal found the following facts to be established on the material before it.
The appellant is an Australian Legal Practitioner practising as a sole legal practitioner under the name of 'Peter Neil Barristers and Solicitors'.[1]
[1] [2017] WASAT 48 [17].
The appellant met with the client at a café on 13 August 2013 for an 'obligation free initial free consult'. At that meeting the client provided the appellant with a seven page summary of a dispute she was having with a property developer. The dispute concerned a $200,000 loan and a $500,000 down payment which the client had made for a property development which was not proceeding as planned. At the meeting the client retained the appellant to provide legal advice in relation to:[2]
1.a strategy to recover her $200,000 loan and $500,000 down payment;
2.advice as to whether she could lodge a caveat over the property, and if so whether a caveat would withstand legal challenge; and
3.how she should respond to an allegation made by the developer that she and the developer were in a 'business partnership'.
[2] [2017] WASAT 48 [18] - [23].
The Tribunal rejected the appellant's allegation that he gave advice at that meeting, and gave reasons for that conclusion.[3]
[3] [2017] WASAT 48 [29] - [32].
There then followed a series of emails between the appellant and the client, in which the client provided documents to the appellant and at times reiterated her need for advice, but no advice was provided.[4] In one of his last communications with the client before sending his invoice, the appellant wrote:[5]
If you can lodge a caveat then I suggest you do so.
There is information on the Landgate website setting out who can and who can not lodge a caveat.
Have you managed to read it?
[4] [2017] WASAT 48 [34] - [68].
[5] [2017] WASAT 48 [64].
On 21 December 2013, the appellant sent the client an invoice of $2,006.40 discounted to $1,495. When the client complained about the invoice, the appellant provided an itemised invoice.[6]
[6] [2017] WASAT 48 [69] - [72].
The Tribunal found that the appellant failed to provide the advice he had been retained to give and, having failed to do so, was not entitled to charge for it.[7] The Tribunal found that the failure to provide the advice and the issuing of invoices constituted professional misconduct.[8]
[7] [2017] WASAT 48 [75] - [82].
[8] [2017] WASAT 48 [120] - [124].
In making the penalty orders, the Tribunal found that the fact that the appellant exhibited such a fundamental misunderstanding of his obligations under the retainer, despite his long years in the profession, shows that there is a need to protect the public from further misconduct by him.[9] The Tribunal found that the appellant had exhibited incompetence:[10]
both in his failure to comply with the terms of the retainer and in his inability to comprehend that he had failed in his obligations under the retainer. His incompetence is further amplified by his inability to comprehend that, in the circumstances, he was not entitled to charge the client.
The Tribunal also concluded that the level of incompetence exhibited by the appellant indicates a need for supervision if he is to be allowed to continue to practice.[11] The Tribunal found that the appellant lacks insight into his conduct and has not accepted any wrongdoing.[12]
[9] [2017] WASAT 48(S) [27].
[10] [2017] WASAT 48 (S) [38].
[11] [2017] WASAT 48 (S) [40].
[12] [2017] WASAT 48 (S) [48] - [49].

Procedural history before the Tribunal

The following is a summary of the findings by the Tribunal as to the events which led to the hearing on 13 February 2017 in the absence of the appellant:
1.The Committee's application was filed on 17 November 2015.[13]
2.Prior to a mediation conference listed for 15 February 2016, the appellant forwarded reports from his doctor which indicated that he suffered from a heart condition which resulted in symptoms (such as severe chest pain) as a reaction to high levels of stress.[14]
3.After mediation failed, the Tribunal made programming orders on 10 May 2016, listing the application for hearing on 19 and 20 September 2016. The programming orders included a requirement that witness statements be filed by 28 August 2016. The timetable, to which the appellant did not object, was set to accommodate his health issues.[15]
4.At a directions hearing on 8 September 2016, the appellant filed an affidavit stating that a hip operation and limited resources had hampered his ability to deal with procedural requirements. He deposed as to his belief that he would be ready for a hearing in mid-November 2016.[16] The hearing was listed for 28 and 29 November 2016.
5.On 21 and 25 November 2016, the appellant applied for an adjournment of the November hearing. He sent the Tribunal medical reports consistent with those previously provided, indicating that the appellant suffered from a heart condition which produced fainting and chest pains at times of stress. That adjournment application was refused.[17]
6.The appellant did not attend the hearing listed for 28 November 2016. After consulting with the appellant's doctor, who indicated that the heart condition was a fairly stable problem, the Tribunal adjourned the hearing and listed the matter for 13 and 14 February 2017.[18]
7.On 28 December 2016, the appellant made an application for further and better particulars and a stay of the Tribunal proceedings. The Tribunal regarded the application for particulars as unnecessary, and did not consider any of the appellant's grounds to provide any basis for a stay of proceedings or an injunction.[19]
8.The appellant made further requests for an adjournment on 3 and 13 February 2017, making a number of allegations, which the Tribunal regarded as baseless, but providing no further medical information.[20] The request of 13 February 2017 indicated that the appellant felt unwell and had made an appointment to see his doctor, so he could obtain a referral to his cardiologist. He did not provide any details as to why he was feeling unwell.[21]
9.The appellant did not attend the hearing on 13 February 2017, which proceeded in his absence, after the Tribunal considered that it was not prepared to grant a further adjournment.[22]
10.A copy of the transcript of proceedings on 13 February 2017 was sent to the appellant, who did not take the opportunity to make submissions within 21 days of its receipt.[23]
[13] [2017] WASAT 48 [1].
[14] [2017] WASAT 48 [84].
[15] [2017] WASAT 48 [87] - [88].
[16] [2017] WASAT 48 [89] - [90].
[17] [2017] WASAT 48 [97] - [100].
[18] [2017] WASAT 48 [101] - [105].
[19] [2017] WASAT 48 [106] - [111].
[20] [2017] WASAT 48 [112] - [116].
[21] [2017] WASAT 48 (S) [62] - [64].
[22] [2017] WASAT 48 [117] - [119].
[23] [2017] WASAT 48 [119].
The Tribunal's reasons for the penalty orders noted a doctor's report dated 16 March 2017 which indicated that the appellant attended at midday on 13 February 2017 reporting that he had 'symptoms consistent with laryngitis in the morning of that day'. The report did not refer to the doctor conducting any examination of the appellant, and the only medical certificates provided were dated well after the hearing date.[24]
[24] [2017] WASAT 48(S) [65] - [70].

Procedural history before this court

On 23 January 2017, the appellant filed an appeal notice appealing against the Tribunal's refusal to order further particulars and a stay (CACV 6 of 2017). As this was an interlocutory civil appeal, the appellant was required to file his Appellant's Case within 7 days thereafter.[25] The appellant did not file an Appellant's Case and, at a hearing before a registrar on 18 May 2017, the time for the appellant to do so was extended to 22 June 2017.
[25] Rule 32(2)(a) of the Supreme Court (Court of Appeal) Rules 2005 (WA).
On 12 April 2017, the appellant filed an appeal notice appealing against the Tribunal's findings that he had engaged in professional misconduct (CACV 42 of 2017). Assuming in the appellant's favour that this was not an interlocutory civil appeal, an Appellant's Case was required to be filed by 17 May 2017.[26] No Appellant's Case has been filed, and no extension of the time to do so has been sought or given.
[26] Rule 32(2)(b) of the Supreme Court (Court of Appeal) Rules.
On 1 June 2017, the appellant filed an appeal notice appealing against the penalty orders (CACV 65 of 2017). As the 28 day period for appealing against the penalty orders expired on 30 May 2017,[27] it was necessary for the appellant to apply for an extension of time in which to appeal.
[27] Section 105(5)(a) of the State Administrative Tribunal Act 2004 (WA).
On Sunday 11 June 2017, the appellant made an ex parte application to the duty judge in the General Division of this court to grant a stay and injunctive relief. The judge declined to make orders. On 12 June 2017, the appellant filed an application in an appeal and supporting affidavit seeking a stay and injunction.

Action taken by the Board after the Tribunal's decision

Two decisions of the Board made after the penalty orders were made should be noted. The appellant was advised of these decisions by letter of the Board dated 9 June 2017.[28]
[28] Affidavit of appellant sworn 10 June 2017, Annexure B.
First, the Professional Affairs Committee of the Board resolved that the appellant's failure to pay the fine and costs by 15 May 2017 in contravention of the penalty orders meant that, under s 466 of the Legal Profession Act 2008 (WA), he is not entitled to apply for a practising certificate. The Board indicated that it could not accept the appellant's application for renewal of his practising certificate and refused to renew his certificate. Unless the appellant's practising certificate is renewed, he will not be entitled to engage in legal practice at all from 1 July 2017.
Secondly, the Board resolved to appoint two practitioners as manager of the appellant's legal practice from 8 June 2017 to 7 June 2018. That decision was made under s 482(2) of the Legal Profession Act.[29]
[29] See also, s 472 and s 475 of the Legal Profession Act, as to when the power may be exercised.

Statutory provisions

Section 105(1) and s 105(3) of the State Administrative Tribunal Act 2004 (WA) provide for a right of appeal to this court, with leave,[30] from a decision of the Tribunal constituted by, or by members who include, a judicial member. Generally, under s 105(2), an appeal can only be brought on a question of law. However, there is an exception, provided for by s 105(13), where the Tribunal's decision under the Legal Profession Act 'has the effect of depriving a person of the person's capacity to lawfully pursue a vocation'. Where that exception applies, an appeal may be brought under s 105 'on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact'.
[30] As to the power to grant of leave to appeal, see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [14] - [18].
The operation of s 105(13) of the State Administrative Tribunal Act was considered by Buss JA, with whom Wheeler and Pullin JJA agreed, in Paridis. Buss JA observed:
Section 105(13)(b) refers to the "effect" of the Tribunal's decision. In my opinion, the provision is concerned with the legal, as distinct from the practical, effect of the decision. If the Tribunal decides to disqualify or suspend a person from practising his or her profession or other vocation, then the legal effect of the decision will be to deprive that person of his or her "capacity to lawfully pursue a vocation", within s 105(13)(b). It is not necessary, for s 105(13)(b) to apply, that the deprivation be permanent or indefinite. If, however, the Tribunal were merely to impose a fine or were to reprimand or caution a person, that penalty would not have the legal effect of depriving the person of his or her "capacity to lawfully pursue a vocation".
The apparent intention of the Parliament, in enacting s 105(13), was to expand the scope of an appeal with leave under s 105(1) to include grounds of appeal involving questions of fact or questions of mixed law and fact where the Tribunal's decision has the legal effect of significantly interfering with a person's capacity to practise a profession or pursue a vocation for which he or she is otherwise qualified with, no doubt, serious consequences for his or her livelihood and reputation in the community [48] - [49].
Section 106 of the State Administrative Tribunal Act provides for this court to stay the operation of the Tribunal's orders, in the following terms:
(1)The Supreme Court may, by order, stay the operation of a decision of the Tribunal pending the determination of an application for leave to appeal from the decision and of any appeal.
(2)Subject to any order made by the Supreme Court, an appeal does not affect the operation of the decision appealed against or prevent the taking of action to implement the decision.
As Newnes JA noted in Legal Profession Complaints Committee v Gandini,[31] the principles summarised by Murray and Parker JJ in Eastland Technology Australia Pty Ltd v Whisson[32] have generally been applied when considering applications for a stay under s 106. Further, as his Honour also noted in that case:
Where the decision in issue concerns the right or freedom of a person to practise or work, or to fulfil a position, pending a decision or appeal which calls that right or freedom into question, the public interest, including any risk to the safety of the public or any section of it, may also be a material factor (and, depending on the circumstances, a very significant factor) in determining whether to grant a stay [24].
[31] Legal Profession Complaints Committee v Gandini [2012] WASCA 247 [23].
[32] Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].

Disposition of the stay application

There are a number of factors counting against the grant of a stay in the present case.
First, it cannot be said that the refusal of a stay will render the appeal nugatory.
It can be anticipated that the condition restricting the appellant to practising as an employed solicitor will operate on its terms, while he holds a practising certificate, until the time when the appeal is determined. However, it is unlikely that the operation of that condition on any practising certificate which the appellant holds will be exhausted by that time.
If the fine and costs ordered by the Tribunal are paid then they can be reimbursed if an appeal is successful. We also note that the fact that the Board's decision not to renew the appellant's practising certificate on the grounds he has contravened the Tribunal's orders is a consequence brought about by the appellant's failure to pay the fine and costs, in circumstances where he could seek reimbursement if his appeals succeed. Although the appellant stated, after the court had made its decision, that he could not afford to pay the fines and costs,[33] the evidence did not set out the appellant's current financial position in any detail. Even if it were appropriate to stay the operation of the order imposing a condition on the appellant's practising certificate, in the current circumstances there would be no basis on which the order for payment of a fine and costs should be stayed.
[33] Appeal ts 33
Secondly, the appellant has not identified grounds for appealing against the Tribunal's decision which have been shown to have reasonable prospects of success.
At the commencement of the hearing of the application, the court invited the appellant to clearly and concisely identify his proposed grounds of appeal. He did not do so in the course of his oral submissions. At one point the appellant indicated that it was not open to the Tribunal, on the material before it, to find that he had not provided the requested legal advice and was therefore not entitled to charge the client.[34] Otherwise, it appears from the appellant's oral submissions[35] that he relies on what are described as 'grounds of appeal' in an email which he sent to the respondent on 9 June 2017.[36] A number of the 'grounds' in that email contain assertions of fact, often not made by reference to any identified error of the Tribunal.
[34] Appeal ts 12 - 13
[35] Appeal ts 13,18.
[36] Affidavit of the appellant sworn 10 June 2017, annexure C.

The appellant contended that he was able to appeal on questions of fact and mixed question of fact and law, under s 105(13) of the Legal Profession Act.[37] This was on the basis that the employment condition had the practical effect of preventing him from continuing to engage in legal practice, in circumstances where he has no prospect of gaining employment.
[37] Appeal ts 25.
It is doubtful whether the Tribunal's decision has the effect of depriving the appellant of his capacity to lawfully pursue a vocation. The legal effect of the condition preserves the appellant's capacity to lawfully pursue his vocation as an employed solicitor. If, as was held in Paridis, s 105(13) is concerned with the legal effect of the order, it will not be enough for the appellant to show that he may practically find it difficult to find a position as an employee. Moreover, and in any event, it is difficult to see how the employment condition deprives the appellant of his capacity to pursue his vocation as a legal practitioner, even if it creates practical impediments to the exercise of that capacity. An employment condition is distinct from a suspension of the right to practise at all, which has been held to be an order to which s 105(13) applies.[38]
[38] See, for example, Centex Australasia Pty Ltd v Commissioner of Consumer Protection [2017] WASCA 79 [1], [97], to which the appellant referred at Appeal ts 28 - 29.
If s 105(13) does not apply, then any appeal must be on a question of law.
Even if we were to assume in the appellant's favour that the penalty orders arguably fall within the scope of s 105(13), the appellant faces considerable difficulties with his, yet to be properly formulated, grounds of appeal.
Even where s 105(13) applies, an appeal to this court is an appeal by way of rehearing,[39] rather than a de novo review of the evidence. If no further evidence is admitted and there has been no relevant change in the law, this court can interfere only if satisfied that there was error on the part of the Tribunal.[40] While this court has power to admit additional evidence in an appeal, the circumstances in which it will do so are limited.[41]
[39] Rule 25 of the Supreme Court (Court of Appeal) Rules.
[40] Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [14] applied in Saunders v The Public Trustee [2015] WASCA 203 [84].
[41] Saunders [85] - [90].
It appears that the appellant seeks to challenge the Tribunal's decision to proceed on 13 February 2017 in his absence.[42] However, given the history in the Tribunal which we have summarised, it is difficult to see how the decision could be successfully impugned. The appellant's submissions did not challenge any of the Tribunal's primary factual findings as to the procedural history to which we have referred at [15] above. It may also be noted that, although the appellant refers to a doctor's letter dated 13 February 2017 as confirming that he had laryngitis,[43] he has not actually annexed the letter to his affidavits filed in this court. The appellant accepted before us that no medical certificate was available to the Tribunal at the hearing on 13 February 2017.[44]
[42] This is the subject of 'grounds' 2, 3 and 8 in the email of 9 June 2017.
[43] Affidavit of the appellant sworn 13 June 2017, par 3.
[44] Appeal ts 23.
An appeal based on the appellant's absence at the hearing on 13 February 2017 faces a further difficulty. The respondent points out that the appellant has not made an application under s 84 of the State Administrative Tribunal Act. An application under s 84 may be made by a party who did not appear and was not represented at a relevant hearing.[45] Any such application may be made within 2 days after a decision which is not a final decision and 35 days after a final decision is given with reasons.[46] However, the Tribunal may extend the time for making an application where to do so would not cause any prejudice to a party or potential party that cannot be remedied by an appropriate order for costs or damages.[47] The Tribunal is required to hear an application under s 84 and consider whether it is satisfied that the party had a reasonable excuse for not attending or being represented at the relevant hearing. If the Tribunal is so satisfied, it is to review the decision and may revoke or vary it if the Tribunal considers it appropriate to do so.[48]
[45] Section 84(2) of the State Administrative Tribunal Act.
[46] Section 84(3) of the State Administrative Tribunal Act read with r 20 of the State Administrative Tribunal Rules 2004 (WA).
[47] Section 92 of the State Administrative Tribunal Act.
[48] Section 84(5) of the State Administrative Tribunal Act.
If he was aggrieved by the hearing being conducted in his absence, the appropriate course was for the appellant, instead of appealing, to apply to the Tribunal for a review under s 84 of the State Administrative Tribunal Act.[49] The failure to pursue that alternative avenue of relief counts strongly against the grant of leave to appeal on the ground that the Tribunal erred in failing to adjourn the hearing on 13 February 2017. Although the Tribunal revisited the appropriateness of its decision to refuse a further adjournment in its reasons for making the penalty order, it has not been called on to address the issues which fall to be considered in an application under s 84 of the Act.
[49] See, by analogy, Taylor v Taylor (1979) 143 CLR 1; DKG v SJB [2016] WASCA 149 [4] and I v Y [2017] WASCA 75 [33].
The appellant also submits that the client committed perjury, and that the advice for which he was retained was given during the meeting at which it was requested. Those assertions do not provide a sound basis for challenging the contrary factual findings which the Tribunal has made.[50] Nor does the provision by the appellant of a competing account to this court provide any obvious basis for inferring error by the Tribunal in making the findings which it did on the factual material before the Tribunal. The fact that the additional evidence which the appellant seeks to adduce in the appeal was available to him at the time of the Tribunal's hearing, and is contested, counts against its admission in the appeal.
[50] See Centex Australasia [99] - [100] as to the review by this court of factual findings made by the Tribunal.
The appellant also makes a claim of bias by way of prejudgment against the President of the Tribunal.[51] However, the appellant has not identified anything which demonstrates that the President dealt with the matters raised in the Tribunal proceedings otherwise than on their merits, or which would give rise to any reasonable apprehension of bias.
[51] This is the subject of 'ground' 9 in the email of 9 June 2017.
There is no merit in the appellant's complaint that the allegations against him were inadequately particularised in the Tribunal.[52] The Committee had filed a statement of its grounds and alleged facts and contentions which identified the case which the appellant had to meet.[53] It also filed detailed witness statements by the client which set out the evidence she was anticipated to give.[54]
[52] This is the subject of 'ground' 1 in the email of 9 June 2017.
[53] Affidavit of Merrick sworn 14 June 2017 annexure SRM 5.
[54] Affidavit of Merrick sworn on 14 June 2017, annexures SRM 2 and SRM 6.
The appellant's email of 9 June 2017 sets out a number of factual assertions which it is unnecessary to set out in detail in these reasons. None of those assertions provide any reasonable grounds for apprehending that the Tribunal made any material error of fact or law. The same is true of the various factual assertions made by the appellant in his oral submissions to us.
There is no merit in the submission that it was not open to the Tribunal, on the material before it, to conclude that the appellant had not provided the advice he was retained to give. That finding was supported by the client's evidence as to what was said at her only meeting with the appellant[55] and by the subsequent email exchanges to which the Tribunal referred. Before this court, the appellant did not contest the fact that the emails were sent, or contend that he spoke to the client on some other relevant occasion. The Tribunal's conclusion that the appellant was not entitled to charge the client followed from its finding that the appellant had not performed any of the work he was retained to do.
[55] Paragraphs 24 - 28 of the client's statement (Annexure SRM2 to the affidavit of Merrick sworn 14 June 2017), adopted by the client at Tribunal ts 13/2/17 at page 4; see also pages 7 - 9 of that transcript.
The appellant submitted that:
(a)he has the opinion of one of Australia's leading costs consultants that the amount of his bill was reasonable;[56] and
(b)the Tribunal’s findings have circumvented the normal procedures of assessment of the reasonableness of a bill by taxation in the Supreme Court.[57]
These submissions do not assist the appellant. The complaint against him was not that he charged an excessive amount for the work he did. Rather, the complaint was that he was retained to provide advice but did not do so, with the result that he was not entitled to charge for the time he spent and work he did, because it was not directed to the retainer.
[56] Appeal ts 12-13.
[57] Appeal ts 22-23, 27
The appellant also contends that the penalty orders are 'grossly disproportionate given that there was no wrong advice given, no damage to the client and my fee was for an agreed amount of under $1,500 … which [the client] has never paid'.[58] However, at this preliminary stage, our provisional view is that the requirement of supervision was an appropriate response to the Tribunal's factual findings about the appellant's lack of insight and competence. Further, the appellant's contention tends to reinforce rather than undermine the Tribunal's finding about his insight. If the appellant failed to give the advice for which he had been retained, there could be no wrong advice and he had no right to demand payment for work that had not been done or that was not the work he was retained to do.
[58] Affidavit of the appellant sworn 10 June 2017, par 6.
Thirdly, the appellant's conduct of the appeals to date raises concerns as to his capacity to expeditiously pursue the proceedings. The appellant has not filed his Appellant's Case in CACV 42 of 2017, filed the appeal notice in CACV 65 of 2017 late and filed the application for a stay over a month after the penalty orders were imposed. He remains self‑represented, and his health issues remain. There is a real prospect of significant delay in the implementation of the penalty orders if a stay were to be granted.
Fourthly, the public interest in the protection of consumers of the services of the legal profession and the public generally counts against the grant of a stay. Section 401(a) of the Legal Profession Act identifies providing that protection as one of the purposes of Part 13 of that Act. The Tribunal has found that the condition that the appellant act only as an employed solicitor is necessary to protect the public from the appellant's incompetence and misconduct. In circumstances where no strong ground for doubting the correctness of the Tribunal's conclusion has been demonstrated, it would be undesirable for this court to grant a stay which would have the effect of depriving the public of that protection.
In our view, the inconvenience and financial consequences for the appellant of the condition remaining while the appeals are resolved are outweighed to a substantial degree by the public interest to which we have referred.
During the course of the hearing of this application it appeared that, despite repeated explanation by the court, the appellant had difficulty in understanding some basic legal concepts. These included the distinction between evidence and submissions and the need to demonstrate error in an appeal. The appellant referred to a number of matters which were not material to the exercise of this court's appellate jurisdiction. In those circumstances, we recognise the danger, identified in relation to this appellant in Neil v Nott,[59] of error when misguided advocacy directs attention away from the material considerations. However, having considered the evidence relevant to the material issues we have identified above, we were satisfied that the appellant has not established grounds for a stay.
[59] Neil v Nott (1994) 68 ALJR 509, 511.
Taking all these matters into account we were not satisfied that the interests of justice required the grant of a stay in this case.

Injunction

The appellant also applied for an injunction restraining the Board from appointing a manager to his legal practice. In practical terms, the refusal of a stay renders the application for an injunction redundant, as with the condition in place the appellant cannot conduct his practice. In any event, the action is taken by the Board under provisions of the Act which are not merely ancillary to the Tribunal's orders. If the appellant wants to challenge that administrative action then the usual course would be to apply to the Tribunal for review of the decision to appoint a manager, under s 508 of the Legal Profession Act. Any application for interim relief would appropriately be made to the Tribunal.
Furthermore, the proper respondent to the injunction application would be the Board, which is not a party to this appeal. The Board and Committee are not to be equated.[60] In any event, the conduct which the appellant seeks to restrain by the injunction - the appointment of a manager to his legal practice - has already occurred. There is no apparent basis for this court to issue a mandatory injunction to require the Board to exercise its power under s 488(1)(e) of the Legal Profession Act to determine that the manager's appointment be terminated, as the appellant suggested during the course of his oral submissions.[61]
[60] Legal Profession Complaints Committee v Rayney [2017] WASCA 78 [114] - [120], [223].
[61] Appeal ts 20.
For all these reasons we dismissed the appellant's application filed on 12 June 2017.

Costs

The respondent sought an order that the appellant pay its costs of the application in an appeal, fixed in the sum of $3,000. In our view, the usual rule that costs follow the event was appropriate in circumstances where the appellant made a discrete application which was wholly unsuccessful. The appellant raised his own impecuniosity and history of practice as reasons why a costs order should not be made. We do not regard those matters as providing a reason for refusing to make the usual costs order. That is particularly so in an application which the appellant instituted, in circumstances where he ought to have known that a costs order against him was to be expected if the application failed. We fixed costs in the sum of $2000, as that was the amount we considered reasonable in all the circumstances.