Neil v Legal Profession Complaints Committee [No 3]
[2017] WASCA 160
•25 AUGUST 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NEIL -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [No 3] [2017] WASCA 160
CORAM: MURPHY JA
MITCHELL JA
HEARD: 18 AUGUST 2017
DELIVERED : 25 AUGUST 2017
FILE NO/S: CACV 65 of 2017
CACV 6 of 2017
CACV 42 of 2017
BETWEEN: PETER CHRISTISON NEIL
Appellant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
Respondent
ON APPEAL FROM:
For File No : CACV 65 of 2017
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :JUSTICE J C CURTHOYS (PRESIDENT)
MR M SPILLANE (MEMBER)
MS R MOORE (MEMBER)
File No :VR 193 of 2015
For File No : CACV 6 of 2017
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :JUSTICE J C CURTHOYS (PRESIDENT)
File No :VR 193 of 2015
For File No : CACV 42 of 2017
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :JUSTICE J C CURTHOYS (PRESIDENT)
MR M SPILLANE (MEMBER)
MS R MOORE (MEMBER)
File No :VR 193 of 2015
Catchwords:
Practice and procedure - Application to adjourn the hearing of the appeal pending the resolution of the appellant's application for special leave to the High Court
Practice and procedure - To show cause why the appeals should not be dismissed
Legislation:
Nil
Result:
Applications for adjournment and extension of time dismissed
Appeals dismissed
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):
Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337
Legal Profession Complaints Committee and Neil [2017] WASAT 48
Legal Profession Complaints Committee and Neil [2017] WASAT 48 (S)
Neil v Legal Profession Complaints Committee [2017] WASCA 109
Smith v NSW Bar Association (1992) 176 CLR 256
Smits v Roach [2006] HCA 36; (2006) 227 CLR 423
REASONS OF THE COURT:
Introduction
These reasons deal with three appeals by the appellant relating to proceedings in the State Administrative Tribunal. The Tribunal found that the appellant engaged in professional misconduct by failing to provide legal advice he was retained to give to a client, and then invoicing the client when not entitled to do so because he did not carry out the work for which he was retained. The Tribunal imposed a fine and an employment condition on the appellant's practising certificate.
In summary, the three appeals challenge the following decisions made by the Tribunal:
1.In CACV 6 of 2017, the appellant challenges the Tribunal's decision of 10 January 2017 to refuse to order the respondent to provide further and better particulars of its application.
2.In CACV 42 of 2017, the appellant challenges the Tribunal's finding of 17 March 2017 that the appellant engaged in professional misconduct.[1]
3.In CACV 65 of 2017, the appellant challenges the Tribunal's orders of 2 May 2017 imposing the fine and employment condition, and awarding costs in favour of the respondent.[2]
[1] Legal Profession Complaints Committee and Neil [2017] WASAT 48 (Misconduct decision).
[2] Legal Profession Complaints Committee and Neil [2017] WASAT 48 (S) (Penalty decision).
The relevant background facts and procedural history are summarised in this court's reasons for refusing to stay the order imposing the employment condition pending the determination of CACV 65 of 2017.[3] We adopt that summary without repeating it. Since that time, the appellant has filed his appellant's cases in CACV 6 of 2017 and CACV 65 of 2017. On 19 July 2017, the appellant sought an extension of time to file his appellant's case in CACV 42 of 2017 until 10 August 2017. That extension was granted on 20 July 2017, but no appellant's case had been filed at the time of the hearing on 18 August 2017.
[3] Neil v Legal Profession Complaints Committee [2017] WASCA 109 (Stay decision) [2] ‑ [20].
At the hearing on 18 August 2017 the following matters were listed for the court's determination:
1.In CACV 65 of 2017 and CACV 6 of 2017: a Registrar's Notice to Attend to show cause why the appeals should not be dismissed on the basis that none of the grounds of appeal have any reasonable prospect of succeeding.
2.In CACV 42 of 2017: a Registrar's Notice to Attend to show cause why the appeal should not be dismissed for failure to file an appellant's case in accordance with the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules) and orders made by the court.
3.In each appeal: an application in the appeal by the appellant to adjourn the hearing of the appeal sine die pending the resolution of the appellant's application for special leave to appeal to the High Court. The appellant has applied to the High Court for special leave to appeal against this court's refusal to stay the employment condition pending determination of CACV 65 of 2017. The application in CACV 42 of 2017 also seeks an extension of time for the appellant to file his appellant's case to 4 September 2017.
After hearing oral submissions from the appellant in relation to the above matters, we reserved our decision. For the following reasons the appellant's applications in each appeal, and each appeal, should be dismissed.
Whether the grounds of appeal have any reasonable prospect of success
It is convenient to begin by considering the substantive question of whether any of the grounds of appeal in CACV 6 of 2017 and CACV 65 of 2017 have any reasonable prospect of succeeding.
The appellant's grounds are generally framed as asserting errors of fact and law. As was noted in the Stay decision,[4] the better view is that any appeal from the Tribunal's decision must be on a question of law. However, for the purposes of considering whether the appellant's grounds of appeal have any reasonable prospect of succeeding, we will assume, in the appellant's favour, that the appellant may appeal on questions of law, fact or mixed law and fact. Even on that assumption, we are of the view that none of the grounds of appeal have any reasonable prospect of succeeding for the following reasons.
Grounds 1 - 7 in CACV 6 of 2017: Particulars
[4] Stay decision [24] - [25], [34] - [35].
The appellant advances seven grounds of appeal in CACV 6 of 2017. It is unnecessary to reproduce those grounds in full here. In essence, the appellant contends that the Tribunal erred in fact and law, and denied him procedural fairness, by refusing to require the respondent to provide further particulars of its allegations.
Under s 32(1) of the State Administrative Tribunal Act 2004 (WA), the Tribunal is generally bound by the rules of natural justice. It is clear that those rules required the Tribunal to ensure that the allegations against the appellant were specifically identified before it made a finding that he had engaged in professional misconduct.[5] The question is whether the responded arguably failed to specifically identify the manner in which the appellant was alleged to have engaged in professional misconduct, resulting in an unfair hearing.
[5] Smith v NSW Bar Association (1992) 176 CLR 256, 270 and cases there cited.
The appellant was served with an amended 'Annexure A' to the application, which the respondent had prepared (Amended Grounds).[6] The Amended Grounds identified two grounds for the allegation that the appellant had engaged in professional misconduct. Ground 1 relevantly contended that the appellant engaged in professional misconduct by failing to provide any or any adequate advice to the client in relation to a dispute regarding a property development that the appellant had been retained to, and had agreed to, provide. Ground 2 relevantly contended that the appellant engaged in professional misconduct by rendering specified invoices to the client which were not fair and reasonable as the appellant did not adequately or at all carry out or perform the legal work for which he was retained and was therefore not entitled to charge the client at all.
[6] Affidavit of Stephen Robert Merrick sworn 14 June 2017, pages 50 - 60.
The Amended Grounds set out the alleged circumstances of a meeting with the client on 13 August 2013, at which the appellant agreed to provide legal advice to the client in relation to:[7]
1.a strategy to recover her loan and investment;
2.whether she could lodge a caveat over the relevant property and, if so, whether the caveat would withstand legal challenge; and
3.how she should respond to an allegation that she and another party were in a business partnership concerning the property development.
[7] Paragraphs 2 - 3 of the Amended Grounds.
The Amended Grounds then set out the terms of a series of emails exchanged between the appellant and the client.[8] The Amended Grounds alleged that the appellant:
1.sent an invoice for $1,495 to the client on 21 December 2013;[9]
2.did not at any time provide the client with the advice sought, and did not adequately or at all carry out or perform the legal work for which he was retained;[10] and
3.was not entitled to charge the client any legal fees in circumstances where he did not adequately or at all carry out or perform the legal work for which he was retained.[11]
[8] Paragraphs 4 - 38 of the Amended Grounds.
[9] Paragraph 39 of the Amended Grounds.
[10] Paragraph 40 of the Amended Grounds.
[11] Paragraph 42 of the Amended Grounds.
In addition to the Amended Grounds, the appellant was served with a copy of witness statements of the client which detailed the evidence she would give,[12] and a book of the documents on which the respondent relied.[13]
[12] Affidavit of Stephen Robert Merrick sworn 14 June 2017, pages 5 - 44 and 61 - 63.
[13] Supplementary Affidavit of Stephen Robert Merrick sworn 14 June 2017, Annexure SRM 1.
The Amended Grounds, witness statements and book of documents specifically identified the circumstances which the respondent alleged and the respects in which it was alleged that the appellant's conduct amounted to professional misconduct. It was clear that the respondent's allegation comprehended the failure by the appellant to provide advice he had been retained to give, and charging the client when not entitled to do so because he did not carry out any of the legal work for which he was retained. That was the basis on which the Tribunal ultimately accepted that the appellant engaged in professional misconduct.[14]
[14] Misconduct decision [120] - [124].
The Tribunal found that this was not a case where the appellant gave advice that was inadequate in some respects.[15] In these circumstances, the appellant cannot succeed by contending that the Amended Grounds failed to adequately particularise the respondent's alternative contention that advice provided was not adequate, by specifying the respects in which it was inadequate.
[15] Misconduct decision [121].
In our view, it is not arguable that the Tribunal failed to accord procedural fairness to the appellant by finding that he had engaged in professional misconduct on a basis which was not specifically identified by the respondent. None of the grounds of appeal in CACV 6 of 2017 have any reasonable prospect of succeeding.
Ground 1 in CACV 65 of 2017: Failure to read emails
Ground 1 in CACV 65 of 2017 is expressed in the following terms:
The Tribunal members erred in law and fact by failing to read all the many emails between the Appellant and [the client], listed in the index to the Respondent's Book of Documents as said emails conclusively show that [the client] was given legal advice by the Appellant on a recovery strategy as well as other legal advice. The Tribunal was misled by the submissions of the Respondent that the Appellant provided no advice at all to [the client].
There is no merit in this ground. There is no basis for the assertion that the Tribunal failed to read the email correspondence between the appellant and the client when the Tribunal's reasons set out the text of the significant emails.[16] None of those emails arguably constituted or evidenced the provision of the advice which the appellant had been retained to give. The only emails between the appellant and the client which were included in the index to the respondent's book of documents but not set out or summarised in the Tribunal's reasons were clearly not critical to the issues before the Tribunal.[17]
Ground 2 in CACV 65 of 2017: Failure to take submissions into account
[16] Misconduct decision [34] - [68].
[17] Being items 9 (emails of 22 - 23 August 2013 reproduced at pages 82 - 83 of the book), 18 (email of 30 August 2013 reproduced at page 167 of the book), 21 (email of 4 September 2013 reproduced at page 187 of the book), 25 (email of 8 September 2013 reproduced at page 201 of the book), 28 (email of 13 September 2013 reproduced at page 204 of the book), 31 - 32 (emails of 16 September 2013 reproduced at pages 212 - 213 of the book) and 34 - 37 (emails of 30 August and 16 - 18 September 2013 reproduced at pages 222 - 226 of the book). The book (without the index) is annexure SRM 1 to the Supplementary Affidavit of Stephen Robert Merrick sworn 14 June 2017.
Ground 2 in CACV 65 of 2017 is expressed in the following terms:
The Tribunal members erred in fact and law in failing to take into account, in their penalty decision critical matters (and refer to the said matters in their decision) raised by the Appellant in his submission on penalty, dated 18th April 2017 including previous false allegations made against the Appellant in 2016 by the LPCC/LPBWA employees that had to be withdrawn because such allegations were false.
The submission referred to in this ground was an email sent by the appellant to the Tribunal after the Misconduct decision and before the Penalty decision had been made.[18] In summary, the appellant's email of 18 April 2017:
1.refers to the appellant's legal experience and approach to the practise of law (pages 1 - 2);
2.contends that he had provided legal advice (pages 2 - 5);
3.refers to and attaches letters from medical practitioners and references, and refers to his inability to obtain services of a pro bono barrister (page 5, 7);
4.alleges that the client had made a number of untrue statements 'that could bring some lawyers to the conclusion that [she] is an unreliable witness' (pages 5 - 6);
5.refers to previous allegations made by the respondent against him (page 6); and
6.refers to the rules of procedural fairness applicable to proceedings in the Tribunal (pages 6 - 7).
[18] Affidavit of Stephen Robert Merrick sworn 14 June 2017, pages 103 - 133.
The Tribunal referred to this email in its Penalty decision, where it observed:
Indeed, far from exhibiting any remorse, Mr Neil has attacked the Committee's conduct of this matter. His 'submissions' in relation to penalty and costs continued his baseless attacks on the staff of the Committee.
Much of the rest of Mr Neil's submissions were directed to disputing the findings of the Tribunal in [the Misconduct decision].
The fact that Mr Neil made the 'submissions' in that form, further demonstrates a worrying inability to comprehend his legal obligations. The place to challenge findings as to conduct is not in submissions as to penalty and costs [44] - [46].
The Tribunal's reasons also consider the references which were attached to the appellant's email.[19]
[19] Penalty decision [57] - [60]. The references appear in the affidavit of Stephen Robert Merrick sworn 14 June 2017, pages 124 - 125, and 128 - 133.
It is clear that the Tribunal took account of the submissions made by the appellant in his email and the attached references, and expressly considered them in the Penalty decision. The assertion that staff of the respondent and the Legal Practice Board had made 'previous false allegations' against the appellant did not raise a matter with which the Tribunal was required to deal in the Penalty decision. It was not relevant to the determination of the appropriate response to the findings of professional misconduct which the Tribunal had made.
It is not arguable that the Tribunal failed to take account of, and deal in its reasons with, the material contained in the appellant's email, as asserted in this ground of appeal.
Grounds 3, 4 and 8 in CACV 65 of 2017
Grounds 3, 4 and 8 in CACV 65 of 2017 seek to impugn the Tribunal's decision to refuse to adjourn the hearing which took place on 13 February 2017. The grounds are set out below:
Ground 3:
The Tribunal members erred in fact and law by failing to grant the Appellant an adjournment on the 13th February 2013[sic] thereby denying the Appellant procedural fairness and an opportunity to cross examine [the client].
Ground 4:
The Tribunal members erred in fact and law by failing to take into account critical matters set out by the Appellant in his applicant [sic] for an adjournment filed with the Tribunal at 9.05am on the 13th February 2013 [sic].
…
Ground 8:
The Tribunal members erred in fact and in law by failing to adjourn the hearing on 13th February 2017 to allow the Appellant more time to obtain the services of a pro bono lawyer to represent him due to his severe leaking heart valve and evidence from his cardiologist that severe stress may lead to a serious deterioration in his heart condition. Under the SAT Act, the Tribunal is to take measures that are reasonably practicable to ensure the parties have the opportunity to examine, cross-examine or re‑examine witnesses in the proceeding.
The circumstances in which the hearing to determine whether the appellant engaged in professional misconduct proceeded in the appellant's absence are set out in detail in the Misconduct decision[20] and the Penalty decision,[21] and are summarised in the Stay decision.[22]
[20] Misconduct decision [83] - [119].
[21] Penalty decision [61] - [70].
[22] Stay decision [15] - [16].
We are not satisfied that the Tribunal arguably erred in the exercise of its discretion refuse to adjourn the hearing on 13 February 2017 and to proceed in the appellant's absence. The appellant had been granted a number of adjournments and had been given every opportunity to obtain legal representation (in circumstances where the Tribunal was not in a position to itself arrange for the appellant to have legal representation). There was no medical advice before the Tribunal on 13 February 2017 which demonstrated the appellant to have been unfit to attend on that day. The more general advice which the Tribunal had previously received indicated that the appellant suffered from a heart condition which was stable but which produced symptoms in times of stress. The Tribunal took steps to accommodate the appellant's medical condition in a manner which recognised the necessity of determining the respondent's application. In all of the circumstances, proceeding with the hearing on 13 February 2017 in the appellant's absence was a proper exercise of the Tribunal's discretion.
In our view, having regard to all of the circumstances described in detail in the Misconduct decision, the Penalty decision and the Stay decision (which findings are not challenged by the appellant) none of these grounds has any reasonable prospect of succeeding. It is unnecessary to further consider whether the appellant's failure to invoke the procedure provided for in s 84 of the State Administrative Tribunal Act should lead to a refusal of leave to appeal.[23]
Ground 5 in CACV 65 of 2017: Costs assessment
[23] See the discussion in the Stay decision at [40] - [41].
Ground 5 in CACV 65 of 2017 is expressed in the following terms:
Ground 5:
The Tribunal members erred in fact and in law by failing to take into account the basic duty of fairness and impartiality which applies to the Respondent as prosecutor concerning the legal work and advice the Appellant gave to [the client] as correctly set out in the $2006 legal tax invoice which has been assessed by Legal Costs Expert barrister David Garnsworthy as legal advice and work done for [the client] in an email sent to the Appellant dated 10th January 2017 after David Garnsworthy had gone through every email listed in the said $2006 legal tax invoice.
As was explained in the Stay decision,[24] reference to an assessment of the reasonableness of the appellant's bill of costs by a costs consultant does not assist the appellant. That is because 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.
Ground 6 in CACV 65 of 2017: Alleged unreliability of the client
[24] Stay decision [47].
Ground 6 in CACV 65 of 2017 is expressed in the following terms:
The Tribunal members erred in fact and in law by failing to take into account that [the client] was an unreliable witness who lied under oath at the 13th February 2017 as set out in page 6 of the Appellants said submission on penalty yet the Tribunal members unfairly proceeded to bring to an end the Appellant's vocation as a lawyer as he is now no longer a lawyer and is unemployed.
This ground does no more than assert that the client lied under oath in her evidence in the proceedings before the Tribunal. It does not identify any arguable error of fact or law by the Tribunal, which was entitled to accept the client's evidence.
Ground 7 in CACV 65 of 2017: Alleged age and disability discrimination
Ground 7 in CACV 65 of 2017 alleges that the Tribunal discriminated against him on the grounds of age or disability, in the following terms:
The Tribunal members erred in fact and in law by failing to take into account that SAT is a State Government agency for the purposes of the Public Sector Management Act and its Codes of Conduct and Codes of Ethics and that they are required to act fairly (which they have failed to do) and not discriminate against the Appellant on grounds of age or disability which they have done bearing in mind none of the other younger lawyers who advised [the client on the development] have been charged by the Respondent with misconduct.
The reference in this ground to the Tribunal being an agency for the purposes of the Public Sector Management Act 1994 (WA) is misguided. The Tribunal is neither a department established under s 35 of that Act nor an SES organisation specified in Schedule 2 to that Act. It is therefore not an 'agency' for the purposes of that Act.[25] Further, as a tribunal established under a written law, the Tribunal is neither an organisation nor a non-SES organisation for the purposes of that Act.[26] The Tribunal is therefore not a 'public sector body'[27] to which public sector standards and codes of ethics made under the Public Sector Management Act apply.
[25] See the definitions of 'agency', 'department' and 'SES organisation' in s 3 of the Public Sector Management Act, and the list of SES organisations in sch 2 to the Act.
[26] Item 4 of sch 1 to the Public Sector Management Act, read with the definitions of 'organisation' and 'non‑SES organisation' in s 3 of the Act.
[27] See the definition of 'public sector body' in s 3 of the Public Sector Management Act.
The obligation of the Tribunal to act fairly derives from the State Administrative Tribunal Act rather than the Public Sector Management Act. Section 32(1) of the State Administrative Tribunal Act provides that the Tribunal is bound by the rules of natural justice, which require it to adopt a fair procedure. Section 16(1) of the State Administrative Tribunal Act required the Tribunal to determine the respondent's application in accordance with that Act and the Legal Profession Act. Under s 438 of the Legal Profession Act, the Tribunal was relevantly required to consider whether the appellant was guilty of professional misconduct and the appropriate order under the Act which followed from a finding of professional misconduct. It is at least arguable that the Tribunal would not be acting in accordance with those Acts if it determined those matters by discriminating against the appellant on grounds of age or disability.
However, there is no evidence that the Tribunal has discriminated against the appellant on grounds of age or disability. The Tribunal took steps to accommodate the appellant's medical condition. There is nothing to suggest that the appellant's age was a factor in the Tribunal's decision. The only basis which the appellant indicates for his assertion of discrimination is that 'none of the other younger lawyers who advised [the client on the development] have been 'charged by the [r]espondent with misconduct'. This alleges conduct of the respondent rather than the Tribunal, in a context where there is no evidence that any other lawyer failed to provide any of the advice which he or she was retained to provide and then charged the client for his or her services. There is no basis in the evidence before this court for thinking that either the respondent or the Tribunal has discriminated against the appellant on grounds of age or disability.
Ground 9 in CACV 65 of 2017: Bias
Ground 9 in CACV 65 of 2017 alleges a breach of the rules of natural justice by the President of the Tribunal at a directions hearing on 8 September 2016, in the following terms:
The SAT President at the September 8 2016 SAT hearing as recorded in the transcript showed hostility (and possible bias/) towards the Appellant in breach of Section 32 of the State Administrative Tribunal Act which states that the Tribunal is bound by the rules of natural justice.
It appears from the draft chronology in the appellant's case that this ground relates to the following passage of the transcript of proceedings in the Tribunal on 8 September 2016. At this stage, the Tribunal was dealing with the appellant's application for an adjournment of the hearing listed for 19 and 20 September 2016. The appellant had filed an affidavit in support of that application, referring to a number of medical issues. After the appellant confirmed that he was seeking an adjournment, the following exchange occurred between the appellant and the President:
HIS HONOUR: Well, you were required to file by 14 August an index to the paginated bundle. Did you do that?
NEIL, MR: No, but it's covered in the affidavit. I wrote to the committee - it must be four or five weeks -
HIS HONOUR: Did you make an application to this tribunal when you couldn't do it?
NEIL, MR: No. I wrote to (indistinct) - - -
HIS HONOUR: Why not?
NEIL, MR: With the greatest respect, your Honour, I wrote to the committee. I have got very limited financial means. Counsel is assisting me pro bono. Counsel, about four to five weeks ago, suggested that we would need an extension of time again, and I've covered the situation of counsel in the affidavit. And I wrote to the committee and mentioned it to them at that stage that we would require more time.
When you have a hip operation, you - and I've had two hip operations. And the second one was - - -
HIS HONOUR: We allowed you time when we set the date.
NEIL, MR: Beg your pardon?
HIS HONOUR: We allowed you time when we set the date.
NEIL, MR: Yes, but the second hip operation was delayed a couple of weeks.
HIS HONOUR: Well, why didn't you at that stage come before this tribunal and seek an extension of time?
NEIL, MR: Because usually the tribunals like - and I do appear in court - the tribunals like to try - the parties to reach consent orders rather than taking up the tribunal or a court's time. And I tried to reach agreements with the other side. They were given notice that more time would be required. Also, I raised the issue with them - which they don't reply to - is that it's quite clear from the affidavits that I did give [the client] the advice that she requested.
HIS HONOUR: When you read the issue or the factual issue about - this is going to hearing. You just stop it. You.
NEIL, MR: I didn't anticipate that I - that my legs would be swollen for well over six weeks and that I would be in a great deal more pain than what's expected and that I didn't expect the delay on the second operation either.
HIS HONOUR: So when can we set this down for hearing?
NEIL, MR: We've asked for an extension of time for two months to - - -
HIS HONOUR: Two months from today.
NEIL, MR: Yes, to comply with all the documents that are required, but we've also got to get two witness statements as well.
The Tribunal did grant the appellant an adjournment of the case until 28 and 29 November 2016, when the appellant said he would be ready for a hearing, and made further programming orders.
The transcript does not arguably disclose either actual bias by the President or give rise to any reasonable apprehension of bias.[28] The Tribunal ultimately acceded to the appellant's request for an adjournment of the pending hearing, and nothing in the transcript suggests that the Tribunal determined any matter other than on its merits. The President did no more than challenge the appellant as to why he failed to comply with procedural directions and stop the appellant from addressing the merits of the case which did not fall for determination at a directions hearing.
Conclusion as to merits of grounds of appeal
[28] As to which see Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337 [6], [8]; Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 [53] ‑ [60].
For the reasons explained above, none of the grounds of appeal in CACV 6 of 2017 or CACV 65 of 2017 have any reasonable prospect of succeeding. Those appeals should be dismissed on that basis.
Extension of time in CACV 42 of 2017
The Tribunal's Misconduct decision was made on 17 March 2017. The appellant filed an appeal notice in CACV 42 of 2017, seeking to appeal against that decision, on 12 April 2017. Assuming in the appellant's favour that the appeal is not against an interlocutory decision, the appellant's case was due to be filed and served on 17 May 2017.[29] No appellant's case was filed or served and, on 19 July 2017, the appellant applied for an extension of time to file and serve his appellant's case to 10 August 2017. That application was granted on 20 July 2017. No appellant's case was filed by the time of the hearing on 18 August 2017, 4 months after the appeal was instituted and 3 months after the appellant's case was originally due to be filed.
[29] Rules 32(2)(b) of the Rules.
By an application in an appeal filed on 17 August 2017, the appellant sought a further extension of time to file his appellant's case in CACV 42 of 2017. His affidavit in support of that application deposes that he was taken to the emergency department at Sir Charles Gairdner Hospital on 5 August 2017 and admitted as an in-patient in the cardiology department of the hospital. He annexed a medical certificate signed by a medical officer at the hospital certifying him to be unfit from 5 - 12 August 2017 with the remarks 'medically unwell requiring hospital admission'. A report of a cardiologist dated 9 August 2017 requested that deadlines in relation to matters with this court be extended:
in view of the recent multiple hospitalisations, symptom issues that may in part be related to stress in relation to those matters, and pending the further cardiac investigation and evaluation that appears necessary.
The appellant was well enough to attend the hearing on 18 August 2017 and make extensive oral submissions. During the course of those submissions, the appellant indicated that he did not intend to raise any additional grounds of appeal in CACV 42 of 2017. Rather, he intended to adopt the grounds already advanced in the other two appeals. Given our conclusion that none of the grounds in the other two appeals have any reasonable prospect of succeeding, there is nothing to be gained by providing the appellant with a further extension of time to file his appellant's case in CACV 42 of 2017. Particularly in light of the time which has passed since the appeal was instituted, and the stress and symptoms which the litigation in this court is apparently causing the appellant, it is not in the interests of justice to prolong proceedings which are destined to fail.
For these reasons, we would refuse the further extension of time for the appellant to file and serve his appellant's case in CACV 42 of 2017, and dismiss that appeal for failure to file an appellant's case in accordance with the Rules and orders made by the court.
Adjournment pending determination of special leave application
Since the Stay decision, the appellant has applied for special leave to appeal to the High Court against this court's refusal to stay the employment condition imposed by the Tribunal pending the determination of CACV 65 of 2017. The appellant now seeks an adjournment of the appeals in this court until such time as the special leave application has been heard by the High Court.
The applications to adjourn the appeals in this court pending the determination of the special leave application should be refused. The stay which the appellant had sought was only until the determination of the appeals. Once the appeals are determined, the question of whether the operation of the employment condition should be stayed pending the determination of the appeals becomes redundant. There is no utility in prolonging the determination of these appeals until the hearing of the special leave application concerning the refusal of a stay until the determination of the appeals.
Orders
For the above reasons, the following orders should be made in the appeals:
CACV 6 of 2017
1.The appellant's application in an appeal filed on 16 August 2017 is dismissed.
2.The appeal is dismissed.
CACV 42 of 2017
1.The appellant's application in an appeal filed on 17 August 2017 is dismissed.
2.The appeal is dismissed.
CACV 65 of 2017
1.The appellant's application in an appeal filed on 16 August 2017 is dismissed.
2.The appeal is dismissed.
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