Neil v Legal Profession Complaints Committee [No 2]
[2011] WASCA 66
•23 MARCH 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NEIL -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [No 2] [2011] WASCA 66
CORAM: PULLIN JA
NEWNES JA
HEARD: 4 MARCH 2011
DELIVERED : 23 MARCH 2011
FILE NO/S: CACV 40 of 2010
BETWEEN: PETER CHRISTISON NEIL
Appellant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First RespondentKATE KORNACKI
Second Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :JUSTICE J A CHANEY (PRESIDENT)
Citation :NEIL and LEGAL PROFESSION COMPLAINTS COMMITTEE [2010] WASAT 39
File No :VR 85 of 2009
Catchwords:
Legal practitioner - Complaint of knowingly preparing a false affidavit - Legal Practitioners Complaints Committee lacked jurisdiction to entertain complaint - In any event complaint found to be unreasonable and vexatious - Application for leave to review decision refused by State Administrative Tribunal - Whether leave to appeal should be granted - Turns on own facts
Legislation:
Legal Practice Act 2003 (WA)
Legal Profession Act 2008 (WA), s 435(2), s 407(2)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
First Respondent : Mr P D Quinlan SC & Ms P E Le Miere
Second Respondent : No appearance
Solicitors:
Appellant: In person
First Respondent : Legal Profession Complaints Committee
Second Respondent : No appearance
Case(s) referred to in judgment(s):
Neil v Legal Profession Complaints Committee [2011] WASCA 48
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
PULLIN JA: The appellant seeks leave to appeal against the decision of the State Administrative Tribunal (SAT) dated 26 March 2010, which dismissed the appellant's proceedings in SAT. Those proceedings were for leave to review a decision of the first respondent (the committee). The committee in its decision had dismissed a complaint by the appellant against the second respondent under the Legal Profession Act 2008 (WA) (Act).
The appellant's complaint was that the second respondent, who was a Victorian solicitor, prepared an affidavit on behalf of an officer of her client (a Mr N), which the second respondent knew, or ought to have known, contained false information. This complaint was dismissed by the committee on the basis that:
(a)the committee did not have jurisdiction to deal with the complaint as it occurred partly in another jurisdiction, namely Victoria, and the committee did not have the consent of the corresponding Victorian authority or of the practitioner under s 407(2)(a) of the Act; and
(b)the complaint was unreasonable and vexatious.
By reason of the finding that the complaint was unreasonable and vexatious, the appellant required the leave of SAT pursuant to s 435(2) of the Act in order to apply for a review of the committee's decision. SAT refused leave. To understand why leave was refused, it is necessary to set out the history.
The appellant was at sometime a director of an insurance company (company). Another director was Mr N. Over some years, the appellant was involved in litigation relating to Mr N and the company. According to the appellant, the activities of Mr N in relation to the company caused him to lose his life savings.
In 2008, bankruptcy proceedings against the appellant were on foot, based upon an alleged debt owed by the appellant to the company. The applicant in those proceedings was represented by the second respondent, who was a legal practitioner practising in Victoria. In the course of those proceedings, an affidavit was sworn by Mr N. The affidavit was dated 7 November 2008. Paragraph 10 of the affidavit read:
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.
This part of the affidavit was apparently designed to deal with a counterclaim or set‑off asserted by the appellant in relation to the debt claimed to support the bankruptcy proceedings.
The appellant's complaint to the committee
On 26 January 2009, Ms Berryl Glasson wrote to the committee on behalf of the appellant. The letter asserted that par 10 of Mr N's affidavit was false and complained that the second respondent 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 [the second respondent's] involvement in the swearing of a false affidavit … and filing same in WA which comes under the jurisdiction of WA laws.'
On 26 February 2009, the committee's legal officer, Ms Whitney, wrote to the Legal Services Commissioner 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 was 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 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 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 the second respondent knew that the facts attested to in the affidavit were false and/or misleading. Ms Glasson responded by email dated 5 February 2009. The response did not provide any such information. Rather, it questioned whether the complaint had been forwarded to the second respondent for answer and made some observations about the general duties of legal practitioners. An email sent by Ms Glasson to Ms Whitney on 17 February 2009 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 the second respondent knew of the falsehood of par 10 of the affidavit of Mr N, although they do make complaints about Mr N's honesty in various respects.
On 26 February 2009, Ms Whitney wrote to the second respondent advising her of the existence of the complaint, and inviting any comment 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 the second respondent 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), the committee had the power to consider the matter, and also whether the second respondent's letter dated 24 March 2009, in which she objected to a copy being provided to Ms Glasson and the appellant, should be published to Ms Glasson.
The committee's decision
Eventually, after the receipt of voluminous emails and documents from Ms Glasson, mostly dealing with the broader history of the dispute between the appellant and Mr N, 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 Act because the complaint was not one that the committee had power to deal with, and, further, that the committee had resolved that the second respondent'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.
When Ms Glasson made the complaint on behalf of the appellant, the Act had not come into force. Its substantive provisions commenced operation on 1 March 2009. Pursuant to s 621 of the Act, however, a complaint made under the previous legislation could be dealt with under the Act if it had not been finally dealt with before the commencement date. It was apparent from the committee's letter of 2 June 2009 that it had proceeded to deal with the matter under the Act. As a result, s 435 of the Act gave to the appellant the 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 was, however, conditioned by a requirement for leave where the committee had found a complaint to be unreasonable or vexatious: s 435(2). There was no issue before SAT that the appellant had an entitlement to seek leave pursuant to s 435(2) of the Act.
The appellant's application to SAT
On 29 June 2009, the appellant applied to SAT for 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, the appellant sought a range of orders which went far beyond the powers of SAT 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 Act in relation to the constitution of SAT 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.
The jurisdiction issue
The appellant, who represented himself at the SAT hearing, also sought an opportunity to provide written submissions as to the application of s 407 of the Act. Although the application of that section was fundamental to the committee's decision in respect of which the appellant sought review, he was given the opportunity to file further written submissions in light of SAT's exchange with the appellant on this question. The appellant 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 Act. He observed that s 405 of the Act provides that pt 13 applies to an Australian legal practitioner whether or not the practitioner is a local lawyer, holds a local practising certificate or holds an interstate practising certificate. SAT observed that that was true, but stated in effect that such point did not affect the limitations imposed by s 407 on the application of pt 13 to conduct occurring partly within the jurisdiction and partly outside the jurisdiction.
Section 407 of the Act reads:
(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.
SAT observed that there was no evidence that the committee had the consent of the corresponding Victorian authority or of the second respondent under s 407(2)(a). SAT therefore concluded [35] that the committee was correct in its conclusion that, in the absence of such consent, it lacked jurisdiction to deal with the appellant's complaint.
Complaint unreasonable and vexatious
SAT also concluded that the committee was correct to conclude that there was no reasonable basis for the complaint. SAT in its reasons referred to the committee's reasons, stating that the appellant had provided no information upon which it might be said that in drafting the affidavit, the second respondent knew, or ought to have known that its contents were false.
At the hearing before SAT, the appellant was pressed to identify what it was in par 10 of Mr N's affidavit that was false. The falsity identified was said to be the assertion that the company had a policy that there would be no reimbursement of any payments unless copies of relevant receipts were provided. The appellant explained to SAT that both he and Mr N had historically provided copies of credit card statements to support reimbursement, and that such process met the company's policy. SAT observed that it would seem that if 'relevant receipts' could be taken to include credit card statements, then the statement in Mr N's affidavit would appear to be accurate. The tenor of the appellant's submission was that he had in fact provided his credit card statements, but reimbursement had not been made.
The appellant referred to the duties of a legal practitioner to the court and to the administration of justice and the duty of practitioners not to mislead a court, and that to do so amounted to unsatisfactory professional conduct or professional misconduct. SAT observed that none of those duties could be doubted. SAT stated that the question, however, was not whether the relevant duties existed, but whether there was any basis for concluding that the second respondent knowingly or recklessly breached those duties.
The appellant asserted that a legal practitioner should inquire into the veracity of assertions made by a deponent to an affidavit which a practitioner is preparing. The appellant referred to a passage in G E Dal Pont, Lawyers' Professional Responsibility (2nd ed, 2001) 458 which read:
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) 3 NZLR 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'.
SAT correctly observed 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 was a reasonable basis for the allegations to be made. However, SAT concluded that the assertions in par 10 of Mr N's affidavit were not in that category.
SAT said that the appellant's assertion about the existence of a policy of the type referred to in par 10 of Mr N's affidavit was of the type which was not likely to give rise to 'mild scepticism' in a legal practitioner.
SAT agreed with the observation in the committee's reasons that the appellant's real concern was with the truth of the evidence provided by the deponent. SAT also observed that the fact that evidence given by affidavit might ultimately be rejected by a court or tribunal as untrue did not lead to a conclusion that a solicitor who had assisted in the preparation of that affidavit had acted in an unprofessional manner.
The appellant submitted to SAT that the second respondent 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 from Ms Glasson to the second respondent in which it was complained that par 10 of Mr N's affidavit was 'somewhat misleading and deceptive'. Reference was made to the appellant generally charging his expenses on credit card, with copies of the credit card statements being provided to the chief financial officer of the company. That email and a facsimile to the Legal Services Board in Victoria from Ms Glasson demonstrated that there was a factual dispute between the second respondent's client and the appellant about arrangements for reimbursement of expenses.
SAT correctly observed that the appellant's position in the proceedings was essentially based on an underlying proposition that his assertions as to the facts should be accepted by SAT, and that the second respondent should have accepted the assertions made by Ms Glasson on the appellant's behalf in preference to her instructions from officers of the company.
SAT observed that that factual dispute was a matter for the Federal Magistrates Court. SAT also observed that because the appellant eventually paid the debt which formed the basis of the bankruptcy notice, the proceedings fell away and the appellant's cross‑claim was never resolved by the court.
As a result of the foregoing history, SAT concluded that the decision of the committee, that the complaint against the second respondent was unreasonable and vexatious, was not wrong and was not attended by sufficient doubt to justify a grant of leave, even if the jurisdictional bar under s 407 of the Act did not exist.
Appellant's grounds of appeal
The appellant seeks leave to appeal to this court on 15 proposed grounds of appeal. At the hearing of this appeal the appellant was granted leave to substitute those grounds of appeal for the grounds of appeal which originally appeared in the appellant's case.
Appeal to this court - only permitted on a question of law and leave to appeal is required
An appeal to this court from a decision of SAT lies only if the court gives leave to appeal: s 105(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Leave to appeal will be granted where it is in the interests of justice that there be a grant of leave having regard to whether there is a real argument sufficient to raise doubt about the decision, and to whether allowing the decision to go uncorrected would result in substantial injustice: Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] ‑ [18].
Further, s 105(2) of the SAT Act provides that an appeal from a decision of SAT can only be brought on a question of law. There is an exception to that provision (s 105(13) of the SAT Act), which has no application in the present case.
None of the grounds of appeal challenge the finding that there was no evidence that the committee had the consent of the corresponding Victorian authority (or practitioner) under s 407(2)(a) and that the committee lacked jurisdiction in the absence of such consent. The appellant could only succeed in this court if it could be shown that the committee's finding that the consent of the corresponding Victorian authority or the second respondent had not been obtained, was wrong as a matter of law. For that reason alone, leave to appeal should be refused and the appeal dismissed. As to the proposed grounds of appeal, none reveal any argument sufficient to raise doubt about the correctness of SAT's decision for the reasons appearing below.
The appellant's oral submissions
The appellant alleges that the wrongs which he alleges that Mr N and the company have committed have caused him to lose his life savings. This has caused the appellant much bitterness and has become a matter of obsession to the point where he is incapable of concentrating his attention on the two simple issues in this case. At the hearing, a great part of the appellant's submissions were dedicated to what he said was evidence about the alleged wrongs done to him and the alleged offences committed by Mr N and the company, and the failure of the committee to refer the alleged offences to the prosecuting authorities. So dedicated was he to making submissions about the alleged wrongs, alleged offences and what he alleges is the failure of the committee to refer these matters to the appropriate prosecuting authority, that he did not address the point made by the first respondent, namely that even if the committee did not refer these matters to the appropriate prosecuting authority, this has nothing to do with the issue of jurisdiction or the issue of whether SAT was wrong to refuse leave to appeal concerning the committee's decision that the appellant's complaint was unreasonable and vexatious.
Grounds 1 and 13
Ground 1 seeks to raise a new point, alleging that the second respondent misled a court in Western Australia on 24 November 2008 when she filed a written submission in the court. That was not the complaint under consideration by the committee or by SAT, which was about the preparation of par 10 of Mr N's affidavit.
Ground 13 also seeks to impermissibly raise the same new matter of complaint. The appellant submitted that this was not a new matter of complaint. If that were correct, then there would have to have been a ground of appeal to SAT plainly asserting that the committee addressed the wrong complaint or failed also to address the complaint about the second respondent misleading the court on 24 November 2008. There was no such ground. Furthermore, the correspondence concerning the complaint, which was set out in SAT's reasons for decision, make it clear that the complaint to the committee was about the second respondent's involvement in the preparation of par 10 of Mr N's affidavit.
Grounds 2, 3, 5 ‑ 8, 12 and 14
There are then eight grounds (grounds 2, 3, 5, 6, 7, 8, 12 and 14) which impermissibly challenge observations or findings of fact made by SAT about the background to the complaint which, even if the challenges succeeded, would make no difference to the conclusions about lack of jurisdiction or to the finding that the appellant's complaint was unreasonable and vexatious. Thus, in ground 2, the appellant contends that he is still a director of the company, whereas SAT stated that he was 'at some time a director' of that company. Ground 3 asserts that the appellant is still in litigation with the company and that SAT erred in stating that 'over some years' the appellant was involved in litigation. Ground 5 asserts that SAT 'failed to take into account' the appellant's allegation of illegal conduct of the second respondent's client. Ground 6 alleges a failure to take into account the appellant's assertion that the second respondent was in a position of conflict because she acted for both the company and Mr N. Ground 7 asserts that SAT failed to take into account that 'the appellant was not a vexatious litigant' in the bankruptcy proceedings. Ground 8 asserts that SAT failed to take into account that the appellant did not resign as a director of the company. Ground 12 asserts that the committee had not complied with s 589 of the Act, which authorises the committee to report suspected offences under any Act to appropriate prosecuting authorities. Ground 14 asserted that SAT erred in stating that the appellant was 'formerly' a legal practitioner, whereas the appellant asserts that he does hold a current practising certificate in Western Australia.
None of grounds 2, 3, 5, 6, 7, 8, 12 or 14, even if established, would make any difference to the conclusion of both the committee and SAT that the committee had no jurisdiction and that the appellant's complaint was unreasonable and vexatious.
Ground 10
Ground 10 asserts that SAT's finding that the appellant had not shown that the committee's decision was wrong or at least attended with sufficient doubt to justify the grant of leave, was manifestly unreasonable. That would only be so if some other ground succeeded, and as will be seen, no other ground concerning the question of the grant of leave succeeds. The ground also repeats the impermissible attempt to introduce the new complaint about the second respondent referred to in grounds 1 and 13.
Ground 11
Ground 11 asserts that SAT erred in concluding at [45] that the second respondent did not need to inquire into the veracity of Mr N's assertions in par 10 of his affidavit. In fact, SAT at [45] was dealing with the appellant's submissions based on the passage in the text of G E Dal Pont, Lawyers' Professional Responsibility referred to above. What SAT decided was that the assertion in par 10 of Mr N's affidavit was not an assertion of the type which required a practitioner to obtain independent verification, nor was it likely to give rise to 'mild scepticism' on the part of the practitioner. Ground 11 does not challenge that reasoning. Rather, the ground reverts to asserting that Mr N made false statements. The appellant's close attention to the alleged wrongs of Mr N caused him to overlook the fact that the issue was whether the second respondent had acted unprofessionally in the preparation of the affidavit containing par 10.
Grounds 4, 9 and 15 - procedural fairness
Ground 9
By ground 9, the appellant asserts that he was denied procedural fairness by the committee. Ground 9 reads:
The learned President of the State Administrative Tribunal erred in law concerning the law relating to procedural fairness referred to in paragraph 36 of the Reasons. The learned President by failing to take into account a consideration which in the circumstances the Tribunal was bound to take into account namely, that the Appellant was denied procedural fairness in that:
a.The Second Respondent made secret submissions to the First Respondent, adverse to the Appellant, which the First Respondent refused to allow the Appellant to see or to respond to.
b.The Law Complaints Officer made secret submissions and recommendations to the First Respondent adverse to the Appellant which the Appellant was not allowed by the First Respondent to see or to respond to correct any errors of fact or law.
c.The Law Complaints Officer wrongly claimed legal professional privilege in respect of her said secret submissions and recommendations to the First Respondent which the Law Complaints Officer cannot claim at law as the Law Complaints Officer is not professionally independent or detached.
This ground is futile because if leave had been granted by SAT, then there would have been a hearing de novo, and the issue of how the committee dealt with the complaint would have become irrelevant. In any event, no secret submission was made. What happened was that the second respondent responded to the appellant's complaint to the committee but objected to the appellant being provided with a copy. The committee decided that the matter could be determined without relying on it. SAT had the document in a sealed envelope which was not opened by SAT. SAT refused the appellant's application for access to the document because neither the committee nor SAT relied on the document in reaching a decision. Furthermore, it could not bear on the issue of jurisdiction.
Grounds 4 and 15
Ground 4 asserts as follows that the appellant was not afforded procedural fairness in the SAT proceedings:
4.1The learned President of the State Administrative Tribunal erred in law and failed to provide the Appellant with procedural fairness in delivering his Reasons dated 26 March 2010 received by the Appellant by mail on the 29 March 2010, when the President and his Senior Associate and the State Administrative Tribunal, by letter dated 17 March 2010 to the Appellant, had already advised the Appellant that the hearing before President Chaney would take place on the 30 March 2010. By so doing the learned President denied the Appellant procedural fairness by failing to take into account the Interim Applications and Submissions of the Appellant filed with the State Administrative Tribunal on the 26 March 2010, as well as the Submissions of the Appellant filed with the State Administrative Tribunal on 29 March 2010 and 30 March 2010.
4.2The learned President of the State Administrative Tribunal erred in law and failed to provide the Appellant with procedural fairness by failing to take into account all the legal issues raised by the Appellant and did not hear the matter de novo contrary to the provisions of Section 27 of the State Administrative Tribunal Act.
4.3The learned President ought to have found that the First Respondent had not fully complied with Section 421(2) of the Legal Profession Act 2008 by investigating each and every one of the Appellants complaints against the Second Respondent inter alia, the conduct of the Second Respondent by acts and omissions misleading Federal Perth Magistrate Lucev in a Federal Magistrates Court hearing held in Perth on 24 November 2008 within the jurisdiction of the laws of Western Australia.
In ground 15 the appellant asserts a lack of procedural fairness in the SAT proceeding. This appears in part to repeat the point made in ground 4 and seeks to raise again the new complaint set out in ground 1. Ground 15 reads:
On 26 March 2010 in a submission filed with SAT, Appellant gave notice to that if President Chaney did not agree with Appellants Interim Application to refer the matter back to the First Respondent under Section 31 of the State Administration Tribunal Act for further consideration the Appellant would be issuing summonses on valid grounds to witnesses to give evidence to help prove Appellants case (inter alia that the Second Respondent by act and omission misled Perth Federal Magistrate Lucev in proceedings held on 24 November 2008 in Perth within the jurisdiction of the laws of Western Australia and refute that put forward by the First Respondent. Such witnesses being:
1.The Second Respondent.
2.Special Counsel Dr Pat Saraceni formerly of Cocks MacNish
3.Lawyer Paul Hopwood of Cocks MacNish
4.Appellant's Chartered Accountant James Nott.
5.Senior Lawyer Damian Creedon (Chief of Staff to the WA Attorney General)
6.Law Complaints Officer Dianne Howell
Because President Chaney denied Appellant procedural fairness and did not hold the hearing scheduled by President Chaney his Associate and the State Administrative Tribunal for 30 March 2010 the Appellant was denied the opportunity to call witnesses.
To understand the allegations of lack of procedural fairness in these two grounds, it is necessary to consider what happened in SAT. There was an oral hearing on 24 September 2009. Despite the issue of jurisdiction being central to the proceedings, the appellant did not come prepared to make oral submissions about that issue. As an indulgence to the appellant, SAT gave the appellant leave to file written submissions about that issue and about another issue which is no longer relevant (about the constitution of SAT) by 30 October 2009 (later extended to 6 November 2009). The appellant agreed, and SAT ordered that the decision about jurisdiction would be made on the papers.
The appellant then filed three sets of written submissions before 6 November 2009 and was granted leave in respect of submissions filed on 22 December 2009. Without the leave of SAT, the appellant took the liberty of filing a further six sets of written submissions between 7 November 2009 and 15 February 2010. For good measure, on the day the tribunal published its reasons, the appellant filed an interim application seeking orders from SAT to set aside the previous orders 'including order of 24 September 2009' that 'the issue of jurisdiction is to be dealt with on the papers', and for an interim order that 'SAT order under section 31 for decision maker to reconsider its decision'. The grounds for this application were stated to be 'grounds as set out in 19 page submission and attachments dated 26 March 2010 filed with SAT with this interim application'. The 19 page submission and attachments included an attempt to ventilate his complaints about the second respondent allegedly misleading Magistrate Lucev on 24 November 2008. As already mentioned, that was not the complaint the committee examined and there was no ground of appeal to SAT plainly asserting that the committee wrongly identified the issue under consideration. The appellant has not demonstrated any procedural unfairness. The appellant had more than a fair opportunity to make written submissions and in any
event, the appellant has not demonstrated that there was anything which he might have put before SAT which could affect the correctness of SAT's conclusion that there was no consent under s 407(2) of the Act and therefore no jurisdiction in the committee.
None of the grounds of appeal have any reasonable prospect of success. None raise any argument sufficient to raise doubt about the correctness of SAT's decision. As a result, leave to appeal should be refused. It follows that the appeal should be dismissed.
NEWNES JA: I agree with Pullin JA.
At the outset of the hearing of the appeal, the appellant made an application that I disqualify myself on the ground of apprehended bias. I refused to do so for reasons which were to be given later. My reasons can be stated very briefly.
The appellant made an application that I disqualify myself on the same ground on the hearing of an interim application in this appeal in which he sought an order compelling the respondents to mediate with a view to settling the appeal: see Neil v Legal Profession Complaints Committee [2011] WASCA 48. On that occasion, I refused to disqualify myself for reasons which are set out there: Neil [11] ‑ [21].
On the present application it was again difficult to follow the appellant's submissions, but in the end it seemed that in all material respects he relied upon the same material as he had on the interim application but put the application on a slightly different basis. He contended, in substance, that I had acted adversely to his interests (rather than pre‑judged the issues) in CIV 1157 of 2005, in which the appellant had made certain claims against Mr N and the insurance company to which Pullin JA has referred above. The appellant relied upon the fact that, after no step had been taken in the action for more than 12 months, in or about July 2007 I had referred the file to a registrar who had issued a summons to the parties under O 29A r 17 of the Rules of the Supreme Court 1971 (WA) to show cause why the action should not be placed on the Inactive Cases List. (After hearing the parties the registrar directed that it be placed on the List.)
I referred in my earlier reasons to the test to be applied in determining whether a judge is disqualified by reason of the appearance of bias. It is unnecessary to repeat what I said there. It is quite clear that, as on the last occasion, there is nothing which is capable of giving rise to a reasonable apprehension of bias and the application is misconceived.
It is for those reasons that I refused to disqualify myself.
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