| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA) WORKERS' COMPENSATION AND INJURY MANAGEMENT ACT 1981 (WA)
WORKERS COMPENSATION AND INJURY MANAGEMENT REGULATIONS 1982
CITATION : O'TOOLE and WORKCOVER WA [2014] WASAT 11 MEMBER : MR H DEMBO (SENIOR SESSIONAL MEMBER) HEARD : 2 AND 3 DECEMBER 2013 DELIVERED : 22 JANUARY 2014 FILE NO/S : VR 185 of 2013 BETWEEN : RALPH TERRANCE O'TOOLE Applicant
AND
WORKCOVER WA
Respondent
Catchwords: Vocational regulation Review Alleged breaches of Code of Conduct under Workers' Compensation and Injury Management 1982 Regulations (WA) Previous breaches of Code of Conduct Lack of insight into obligations pursuant to Code of Conduct No remorse exhibited Whether Tribunal should affirm, vary, or set aside original decisionmaker's findings to cancel registration of applicant as registered agent Decision affirmed Legislation: State Administrative Tribunal Act 2004 (WA), s 17, s 27, s 29, s 88
Workers' Compensation and Injury Management Act 1981 (WA)
Workers' Compensation and Injury Management Regulations 1982 (WA), regs 26 - 42, Appendix IV Result: Decision affirmed
Summary of Tribunal's decision: This matter involved an application for the Tribunal to review the decision of WorkCover WA to cancel the registration of the applicant as a registered agent. The applicant was found by WorkCover WA to have breached the Code of Conduct applicable to registered agents arising out of three complaints against the applicant. WorkCover WA found that the applicant had breached the Code of Conduct in five respects as follows: clause 7(4)(d); clause 5(3) (two breaches); and clause 2(1) (two breaches). On review, and after a two day hearing, having found that for reasons requiring the protection of the public and that the applicant is not a fit and proper person to act as a registered agent, the Tribunal affirmed the decision of WorkCover WA. In summary, the breach relating to clause 7(4)(d) related to not promptly turning over all papers to his client after withdrawing from representing his client; the breaches under clause 5(3) related to not acting with due courtesy or respect to an arbitrator and putting the arbitrator on notice with regard to bias as a tactic of intimidation; the breaches under clause 2(1) related to attempting to further his client's case by unethical or dishonest means.
Category: B
Representation:
Counsel:
Applicant : Mr R Lindsay with Ms C Ng
Respondent : Mr N van Hattem with Mr H White
Solicitors:
Applicant : Nigams Legal
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Legal Practitioner Complaints Committee v Pepe [2009] WASC 39
Legal Profession Complaints Committee and in de Braekt (2013) WASC 124
Legal Profession Complaints Committee and O'Halloran [2011] WASAT 95
Legal Profession Complaints Committee v O'Halloran [2013] WASC 430
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 Mr Ralph Terrance O'Toole (applicant) has applied to the Tribunal for review of the decision of Workcover WA to cancel his registration as a registered agent pursuant to reg 41 of the Workers' Compensation and Injury Management Regulations 1982 (WA) (the Regulations). The matter has come within the review jurisdiction of the Tribunal pursuant to s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). 2 Workcover WA determined to cancel the applicant's registration on the basis of a number of complaints. In summary, the complaints alleged that the applicant had: a) failed to promptly return documents after withdrawing from representation contrary to clause 7(4)(d) of the Registered Agent's Code of Conduct being Appendix IV of the Regulations (the Code) (Callander complaint); b) put Arbitrator Rutherford on notice regarding an allegation of bias as a tactic of intimidation and otherwise showed disrespect and discourtesy to the arbitrator contrary to clause 2(1) and clause 5(3) of the Code (Rutherford complaint); and c) spoken with a person and raised allegations of rape to further a client's case by unethical means contrary to clause 2(1) of the Code (local government complaint). 3 In a letter of 9 October 2013, Workcover WA (respondent) advised the applicant that it had: a) determined to take disciplinary action encompassing the above three complaints; b) considered the applicant's previous breaches (he had previously been cautioned in respect of 13 previous breaches of the Code); c) considered that the findings against the applicant in the Rutherford complaint, and particularly the local government complaint, were significant; and d) finally determined to cancel the applicant's registration as a registered agent effective 18 October 2013. 4 The Tribunal will address each of the complaints in turn after referring to the legal framework and principles to be applied.
Legal framework 5 The respondent registers and regulates registered agents under the Regulations. Registered agents are required to comply with the Code. 6 The respondent had registered the applicant as a registered agent on 10 February 2006. Registered agents at all relevant times represent clients in workers' compensation claims and appear before arbitrators in the Dispute Resolution Directorate under the Workers' Compensation and Injury Management Act 1981 (WA) (WCIM Act). In acting for clients in attempting to settle workers' compensation claims and appearing as their advocates, registered agents act in many respects as a barrister or solicitor would. 7 The applicant was a registered agent between 10 February 2006 and 18 October 2013, and had been practising in the workers' compensation jurisdiction for around 15 years until 18 October 2013 when his registration was cancelled.
Registered agents in general 8 Part 4 of the Regulations deals with registered agents and, in particular, reg 26 defines who is a 'fit and proper person' in relation to an applicant for registration. A 'fit and proper person' is defined as follows: … in relation to an applicant or registered agent, means a person who satisfies WorkCover WA that he or she (a) by reason of qualification or experience or both, has sufficient knowledge of the workers' compensation jurisdiction to represent a party effectively; and (b) is of good character[.] 9 Certain formalities are prescribed for registration they are set out in regs 29(1)(a) and 29(1)(b) which are reproduced below: 10 Pursuant to reg 30(2): It is a condition of registration that the registered agent must comply with the code of conduct. 11 The relevant disciplinary powers of the respondent are dealt with in regs 37 and 39. These are reproduced in full below: 37. Restriction on exercise of powers WorkCover WA cannot take disciplinary action under regulation 38 or 39 unless it has given the registered agent and the employer, if any, who nominated the registered agent under regulation 28(2) an opportunity to show cause why the action should not be taken. 39. Taking disciplinary action 12 Pursuant to reg 41 of the Regulations: A person aggrieved by a decision of WorkCover WA to (a) refuse an application for registration or for renewal of registration; or (b) suspend or cancel the person's registration, may apply to the State Administrative Tribunal for a review of that decision. 13 The review jurisdiction of the Tribunal is set out in Div 3, s 17 and following of the SAT Act. Proceedings for a review are detailed in s 25 to s 31. Of particular relevance are s 27 and s 29, which state: 27 Nature of review proceedings (1) The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made. (2) The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review. (3) The reasons for decision provided by the decisionmaker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision. 29 Tribunal's powers in review jurisdiction (1) The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decisionmaker in making the reviewable decision. (2) Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal. (3) The Tribunal may and, in any case, may make any order the Tribunal considers appropriate. (4) … (5) The decisionmaker’s decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decisionmaker's decision (a) is to be regarded as, and given effect as, a decision of the decisionmaker; and (b) unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect. (6) Without limiting subsection (5)(a), the decisionmaker has power to do anything necessary to implement the Tribunal's decision. (7) Despite subsection (5)(a), the decision as affirmed, varied, or substituted is not again open to review by the Tribunal as a decision of the decisionmaker. (8) Subsection (5)(a) does not affect an appeal under Part 5 against the Tribunal's decision. (9) To avoid doubt it is declared that this section and section 27 do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decisionmaker. 14 In summary, the review of a reviewable decision by the Tribunal is by way of fresh consideration to the matters in issue, that is, a hearing de novo. A review is not confined to matters that were before the original decisionmaker, but may involve the consideration of new material, whether or not it existed at the time the original decision was made. The Tribunal's task is to make a fresh decision in place of the original decision-maker, not to review the original decisionmaker's decisionmaking process. In the Tribunal, 'review' means 'merits review', not 'judicial review' (Guide to Proceedings in the Western Australian State Administrative Tribunal (Lawbook Co Thomson Reuters, 2012) by DR Parry and B De Villiers at paragraph 303). 15 Clause 1 of the Code states: Duties of registered agent It is the duty of a registered agent (a) To comply with the provisions of the Act, any subsidiary legislation made under the Act and the conditions of registration; and (b) Not to engage in conduct which is illegal or dishonest or which may otherwise bring registered agents into disrepute or which is prejudicial to the administration of the workers' compensation and injury management system; and (c) To be competent as a registered agent.
The application for review 16 The application for review in these proceedings relates to three complaints and the findings of the respondent thereon. The Tribunal will deal with each complaint, the responses thereto, and the findings in respect of each of them. Because of the nature of the correspondence, there is some overlapping. The nature of the complaints and the responses up to and including 9 August 2013 are clearly set out in what was Exhibit 6 tendered at the hearing, being a letter from the respondent to the applicant, which states: COMPLAINTS MADE AGAINST INDEPENDENT REGISTERED AGENT MR RALPH O'TOOLE WorkCover WA has received a number of complaints concerning your activities as a registered agent. The complaints are sufficiently serious in nature to warrant WorkCover WA requesting you provide written reasons why disciplinary action should not be taken against you. We therefore provide you with the opportunity to provide submissions addressing each of the alleged breaches of the [r]egistered agents code of conduct (the Code) as contained in Appendix IV of the Workers Compensation and Injury Management Regulations 1982 (the Regulations) set out below. Your submissions are required by or on 9 September 2013 following which WorkCover WA will make a final determination on whether or not to take disciplinary action against you. If WorkCover WA is satisfied that proper cause exists for disciplinary action, WorkCover WA may, under the provisions of regulation 39(3) of the Regulations: • reprimand or caution you; • attach a condition to your registration; • suspend the registration for a period not exceeding 12 months; or • cancel your registration. Complaint 1 On 4 June 2013 a complaint was received from Mr William Callander alleging you refused to return documents after withdrawing your representation. WorkCover WA wrote to you about this complaint and you provided a response on 12 July 2013. This response was taken into account, and will be considered together with any submissions you make in response to this letter, in ultimately deciding whether to take disciplinary action against you. The complaint concerned the following breaches: A. Failure to promptly return papers and property to Mr Callander after withdrawing your representation B. It was alleged you did not comply with the timeframe to submit notice of your withdrawal from representing Mr Callander to the Director. Evidence provided by you supported your statement you did provide such notice as required by clause 7(5) of the Code. In the copy of the form 104 'Notice of representation including change or cessation of representation' (form 104) provided by you in relation to this matter, the date of cessation is noted as 11 March 2013[;] however the form 104 is dated and was faxed on 25 March 2013, 10 days later. Section 9(3) of the Workers' Compensation and Injury Management Conciliation Rules 2011 (the Rules) which [sic] states: 'If a representative ceases to represent a party to the dispute, the representative must within 3 working days of cessation give written notice to the Director and give a copy of the notice to each other party to the dispute.' Whilst a breach of section 9(3) of the Rules appears to have occurred, as you have not been afforded the opportunity to respond to this allegation, WorkCover WA [does] not propose to take any action regarding this matter. Complaint 2 On 25 June 2013 a complaint was received from the Registrar, Arbitration Mr Shane Melville about your behaviour at a hearing in the Conciliation and Arbitration Service (CAS) before Arbitrator Rutherford on 11 June 2013. WorkCover WA wrote to you about this complaint and you provided a response on 12 July 2013. This response was taken into account, and will be considered together with any submissions you make in response to this letter, in ultimately deciding whether to take disciplinary action against you. The complaint concerned the following breaches of the Regulations: C. It was alleged you put Arbitrator Rutherford on notice regarding your preparedness to raise an allegation of bias against Arbitrator Rutherford, should the need arise. D. It was alleged you made misleading statements by stating other arbitrators and the Arbitration Service in general were biased against you. Further, you inferred you had another arbitrator excluded from hearing matters where you are listed as appearing. E. It was alleged you made inappropriate comments that could best be described as discourteous to the Arbitration Service, arbitrators in general and to Arbitrator Rutherford. Complaint 3 On 26 June 2013 a complaint 2 was received from Councillor (Cr) […] concerning your conduct in representing an employee of the Shire […]. Cr […] is the Shire President of the Shire […], and recounted an incident where you contacted him by telephone raising extremely serious allegations of sexual assault suffered by your client, (a female officer of the Shire) at the hands of the Chief Executive Officer (CEO) of the Shire […]. WorkCover WA wrote to you about this complaint and you provided a response on 23 July 2013. This response was taken into account, and will be considered together with any submissions you make in response to this letter, in ultimately deciding whether to take disciplinary action against you. F. Cr […] stated he believed it was your intention to intimidate him in order for him to exert pressure on the CEO to pay your client more money. Your response is that you are bound by the instructions you receive from your client, and that it was not your intention to infer a relationship you have with a Queen[']s Counsel was related to the legal advice you obtained on this matter. In relation to Complaint 2, point D, your non-appearance before any particular arbitrator has not arisen as a result of any allegations previously raised by you; it is merely coincidence. Any further allegations of this nature after this date will be considered in light of this information being provided to you. In summary, subject to any acceptable explanation being provided, it is my current view that the above complaints indicate proper cause exists for disciplinary action under regulation 39(3). You have until Monday 9 September 2013 to provide a written response to the abovementioned complaints following which WorkCover WA will make a final determination on whether or not to take disciplinary action. Subject to your response, it is possible this disciplinary action may result in either the suspension or cancellation of your registration in accordance with regulation 39(3). Yours sincerely CHRIS WHITE
A/CHIEF EXECUTIVE OFFICER 9 August 2013
Relevant provisions of the Code 17 The provisions of the Code alleged to have been breached are reproduced below. 18 Clause 7(4)(d) relevantly states: 19 Clause 2(1) relevantly states: A registered agent must not attempt to further a client's case by unethical or dishonest means. 20 Clause 5(3) relevantly states: A registered agent must at all times (a) act with due courtesy to the Director, the Registrar, officers of the Conciliation Service and the Arbitration Service and other officers WorkCover WA, legal practitioners … . 21 It appears that WorkCover WA followed the procedures laid down in the Regulations in respect of disciplinary action. No issue was taken in that regard by the applicant at the hearing. An earlier written submission on the applicant's behalf, that the original decisionmaker's decision was a nullity, was not pursued at the hearing. 22 The Tribunal finds that the responses of the applicant summarised below clearly demonstrate that the applicant: • refused to acknowledge any wrongdoing in respect to the complaints other than to a very limited extent in the Callander complaint when he belatedly admitted to a mistaken belief that he had a lien over the file; • showed lack of insight into his obligations as a registered agent under the Code; • showed no remorse, was not contrite, and made no apologies for his behaviour; and • sought in many instances to shift blame onto WorkCover WA, its staff and some arbitrators.
Summary of relevant responses 23 Exhibit 7 tendered at the hearing was a letter dated 9 September 2013 from the applicant to the respondent concerning the complaints the subject of this review. In that letter the applicant: 1) The Callander complaint 24 Exhibit 14 tendered at the hearing was a letter from the applicant to WorkCover WA dated 12 July 2013. In that letter the applicant: a) claimed he had a lieu [sic/lien] on the file (when there is clearly no such provision in the Code for such a lien); b) denied that he was in breach of the Code; c) stated that his reply is under protest; d) stated that there is no written complaint (in fact there was Exhibit 9 tendered at the hearing); and e) was particularly sarcastic in his response concerning what was clearly a typographical error as to the date of a required reply. The date in the original letter said 'Thursday, 12th of July 2013' instead of obviously Friday, 12 July 2013. 25 In Exhibit 7 the applicant: a) specifically regarding the Callander complaint, was critical of the Code and WorkCover WA's staff; b) asserted that he had had a lien but acknowledged that there is no such provision in the Code for such a lien; and c) said that it was inconceivable that he should be punished if he cannot get paid his fees. 2) The Rutherford complaint 26 Exhibit 20 tendered at the hearing was a letter from the applicant to WorkCover WA in response to this complaint: a) the applicant asserted that there was no written complaint and that he would reply under protest; b) he referred to Arbitrator Rutherford's complaint as 'a whole heap of nonsense'; c) given the same circumstances he said that he 'would almost certainly have the same exchange'; and d) his conclusion is that arbitrators against whose rulings he has been successful in appeal would likely be perceived to be biased against him. 3) The local government complaint 27 The parties agreed at the hearing that neither the local government concerned nor the names of the people involved in the dispute should be identified. The Tribunal accepted that such agreement was reasonable. 28 Exhibit 5 tendered at the hearing was a letter from the applicant to WorkCover WA dated 23 July 2013 which is the applicant's response to this complaint. a) Again, he made unnecessary and sarcastic remarks about the required dates of reply. b) He stated that he and his client had a meeting with the CEO and another person to endeavour to negotiate a settlement for his female client, which negotiations failed. c) He denied saying that he had received advice from a particular prominent named Queen's Counsel, that his client's allegations if proven constituted rape. d) He referred to the crime of rape and accused the CEO of committing that crime if the allegations against him were proved and, further, accused the CEO of committing a further crime not related to his client's worker's compensation claim. e) He said that the council has complained about him to intimidate him because inter alia the Crime and Corruption Commission is involved. f) He admitted saying that the settlement offer was 'inadequate/ridiculous' but denied attempting to have the President influence the CEO in settlement negotiations nor to exert pressure on the President. g) He denied breaching the Code.
The complaints and the findings of WorkCover WA being the decisions under review 29 By letter dated 9 October 2013, which was Exhibit 8 tendered at the hearing, the respondent wrote to the applicant concerning all the complaints and the respondent's findings. The letter succinctly sets out the nature of the complaints and the findings. This letter is reproduced below redacted to exclude irrelevant matters. Mr Ralph O'Toole
[address] Dear Mr O'Toole COMPLAINTS AGAINST REGISTERED AGENT MR RALPH O'TOOLE I note receipt of your correspondence dated 9 September 2013 regarding the three complaints made against you in June 2013. WorkCover WA regards these three complaints as sufficiently serious in nature to consider disciplinary action being taken against you. Opportunity was provided to you to make submissions addressing each of the alleged breaches of the Registered agents code of conduct (the Code) as contained in Appendix IV of the Workers Compensation and Injury Management Regulations 1982 (the Regulations) set out below. Your submissions have been considered and the following findings have been made: Complaint 1 On 4 June 2013 a complaint was received from Mr William Callander alleging you refused to return documents after withdrawing your representation. WorkCover WA wrote to you about this complaint and you provided a response on 12 July 2013. This response has been taken into account, together with your submissions in your letter of 9 September 2013, in ultimately deciding whether to take disciplinary action against you. The complaint identified the following potential breaches: A. Failure to promptly return papers and property to Mr Callander after withdrawing your representation. By your own admission, both verbally to an officer of WorkCover WA and in writing, you did not return the papers to Mr Callander because you said he owed you monies for services provided by you in your capacity as a registered agent. You claimed you held a lien on the papers. As you acknowledge in your letter of 9 September 2013, there is no provision in the Code for a registered agent to hold a lien on a client's papers. Clause 4(d) requires a registered agent who withdraws to promptly turn over all papers and property to the client. After considering the allegations, the evidence on hand and your responses of 12 July 2013 and 9 September 2013, I have determined you have breached clause 7(4)(d) of the Code. B. … Complaint 2 On 25 June 2013 a complaint was received from the Registrar, Arbitration Mr Shane Melville regarding your behaviour at a hearing in the Arbitration Service before Arbitrator Rutherford on 11 June 2013. WorkCover WA wrote to you about this complaint and you provided a response on 12 July 2013. This response has been taken into account, together with your submissions in your letter of 9 September 2013, in ultimately deciding whether to take disciplinary action against you. The complaint concerned the following alleged breaches of the Regulations: C. It was alleged you put Arbitrator Rutherford on notice regarding your preparedness to raise an allegation of bias against Arbitrator Rutherford, should the need arise. The tone and nature of the comments made by you support the allegation raised by Arbitrator Rutherford. I consider the allegation of the bias was made as a tactic of intimidation. The comments made were disrespectful and discourteous to the arbitrator. After considering the allegations, the evidence on hand and your responses of 12 July 2013 and 9 September 2013, I have determined you have breached clauses 2(1) and 5(3) of the Code. D. … E. It was alleged you made inappropriate comments that could best be described as discourteous to the Arbitration Service, arbitrators in general and to Arbitrator Rutherford. Your comments and tone were disrespectful. The comments bring into disrepute the professionalism of the Arbitration Service, arbitrators generally and Arbitrator Rutherford. After considering the allegations and the evidence on hand including your responses of 12 July 2013 and 9 September 2013, I have determined you have breached clause 5(3) of the Code. Complaint 3 On 26 June 2013 a complaint was received from Councillor […] concerning your conduct in representing an employee of the Shire […]. Councillor […] is the Shire President of the Shire […], and recounted an incident where you contacted him by telephone raising serious allegations of sexual assault suffered by your client. WorkCover WA wrote to you about this complaint and you provided a response on 23 July 2013. This response has been taken into account, together with your submissions in your letter of 9 September 2013, in deciding whether to take disciplinary action against you. F. Councillor […] stated he believed it was your intention to intimate him in order for him to exert pressure on the CEO to pay your client more money. Your response is that you are bound by the instructions you receive from your client, and that it was not your intention to infer a relationship you have with a Queen's Counsel was related to the legal advice you obtained on this matter. I consider your conversation with Cr […] and the allegations made cannot reasonably be considered to be anything other than an attempt to further your client's case by unethical means. Appropriate and well established alternative avenues to raise complaints of sexual assault exist and were the proper means to raise any concerns you (or your client) legitimately held. In your letter of 9 September you said there is no unethical conduct acting on your client's instructions. A registered agent must not attempt to further a client's case by unethical means, even if instructed to do so by a client. After considering the allegations, the evidence on hand including your responses of 23 July 2013 and 9 September 2013, I have determined you have breached clause 2(1) of the Code. Final determination Having considered all the evidence available and the submissions provided by you, inclusive of your submissions in your letter of 9 September 2013, I have determined proper cause exists for disciplinary action to be taken against you in accordance with regulation 39 of the Regulations. I have considered all options open under the provisions of regulation 39(3), which are: (a) Reprimand or caution;
(b) Attach a condition to your registration;
(c) Suspend the registration for a period not exceeding 12 months; or (d) Cancel the registration. The findings made concerning your conduct before Arbitrator Rutherford and the particularly serious character of the findings regarding the complaint of Cr […] are significant and the penalty applied should be reflective of this. I have also had regard for the fact there have been 13 previous complaints received and upheld by WorkCover WA in respect to your past conduct. A global disciplinary action encompassing all three complaints has been determined. In accordance with regulation 39(3) of the Regulations I advise you WorkCover WA will cancel your registration as a registered agent effective from 5pm on Friday 18 October 2013. This effective date will provide your clients sufficient time to engage alternate representation, should they so choose. WorkCover WA will also write to each of your clients advising them of your impending removal from the register to ensure they understand the implications of this decision. In accordance with regulation 40(1) of the Regulations I direct that you return your certificate of registration to WorkCover WA by 5pm on 23 October 2013. Yours sincerely Chris White
A/CHIEF EXECUTIVE OFFICER 9 October 2013
The evidence and the findings thereon
THE HEARING
The Callander complaint 30 The respondent relied on the documentary evidence tendered. The respondent had written a letter requesting the applicant to return the documents belonging to Mr Callander. It took from 11 March 2013, being the date of the first request from Mr Callander, to 17 June 2013 for the documents to be returned. 31 The applicant gave sworn evidence at the hearing relating to all complaints. His excuse for not returning the documents when requested was that he thought he had a lien over them. He said later that his belief was mistaken but also said that he did not check the Code to see if he had a lien and acknowledged that the Code gave him no basis for his mistaken belief. The Tribunal finds that there was in fact no lien nor any legal basis for such alleged mistaken belief. His evidence that the documents were only copies of documents and that Mr Callander had the originals and that they were not important and did not affect Mr Callander's claim in any way does not ring true, because if that were the case, it is unlikely that Mr Callander would have complained, and even more unlikely that the applicant would have attempted to use the retention of the documents as a lever to get payment of his account by claiming a lien. As will appear below in these reasons the Tribunal does not find the applicant to be a witness of truth. 32 Under crossexamination the applicant, whilst submitting that he knows of the Code, admitted that he did not refer to it frequently but knew he was bound by it. The Tribunal's observation during the hearing was that the applicant's attitude to his obligations under the Code was somewhat cavalier, notwithstanding that he stated under crossexamination that the Code is there to be followed. He said that sometimes it was not appropriate for him to follow the Code, particularly if he thought it was ambiguous. He admitted that clause 2(1) of the Code was not ambiguous. He admitted that even in the heat of the moment it was important for him to follow the Code. The Tribunal found him to be evasive during crossexamination with regard to Mr Callander (and, indeed, to all of the complaints). 33 The applicant did not request the presence of Mr Callander to give evidence or to be crossexamined. Further, there was no evidence led by either party of any harm suffered by Mr Callander because of the delay, although realistically some harm was probably foreseeable otherwise there would be no basis for the applicant to use his 'lever' for withholding the documents. Whilst this could have amounted to a serious breach of the Code there is no evidence to support a finding other than a breach and the Tribunal accordingly finds that the complaint that the applicant breached clause 7(4)(d) of the Code is proven.
The Rutherford complaint 34 The respondent relied on the documentary evidence in the bundle of documents (being the correspondence between the parties and, in particular, the email dated 12 June 2013 from Arbitrator Rutherford to Mr Melville, who was the Registrar of Arbitration), being Exhibit 12 tendered at the hearing. Relevant parts of that email are reproduced below. … I am of the view that some of his comments made during this hearing require scrutiny. Mr O'Toole made comments which in my view breached the registered agents' code of conduct; the comments at the least showed a lack of courtesy to the arbitration service, the arbitrators and to me, if not downright offensive. For example, Mr O'Toole made disparaging comments about Arbitrators generally; in essence, he claimed he had been and was being treated unfairly by the arbitrators and that solicitors got more favourable treatment than he did (bias against him personally). While on that topic, he referred me to a decision I had made in another case involving him I therefore assume he was claiming I had also treated him (and thereby by inference his clients, though he made no reference to his clients) unfairly. There are no grounds for his complaint in that matter. He had failed to lodge a document in accordance with orders and I therefore rejected that document, requiring him to obtain the consent of the respondent's solicitors to the late filing, which course of action I had taken in the same case where the respondent's solicitors had also failed to comply with the orders. I note he declined to consent in that regard requiring the respondent to issue an interlocutory application. He further referred to an application he had earlier made alleging bias by an unnamed Arbitrator. He told me in effect that after that application was dealt with, that that arbitrator has not heard his matters since (inferring therefore that that arbitrator is somehow excluded from his matters due to bias, presumably ongoing bias). I know of no such result. Further and in relation to alleged bias, in essence, as far as I am concerned, Mr O'Toole put me 'on notice' that he would make an application of bias against me (should he have cause). There was no reason why such remarks were made other than giving me a warning. That is wholly inappropriate and in my view brings the arbitration service into disrepute. Responding to a question in that regard from me, he said he was not making such an application but referred to such an application a number of times. His comments were wholly inappropriate and indeed had the flavour of a threat. … 35 The respondent also relied on the audio of those proceedings which is Exhibit 10 tendered at the hearing of which by agreement all relevant portions were played during the hearing, and also the transcript, Exhibit 11 tendered at the hearing. 36 The relevant aspects of the transcript, pages 6 to 10, are reproduced in full below. ARBITRATOR: … Look, in any event, Mr O'Toole, I'm not going to grant your application. It seems to me that the - - well, at best it's one day late. MR O'TOOLE: Well, sir, it's not a - - not a matter of being one day late. I had a matter before you recently where you rejected a - - a statement but you asked my - - me to file for my client in another matter, and you rejected that. ARBITRATOR: Yes, that's right. MR O'TOOLE: Where's the consistency? ARBITRATOR: Well, the consistency is in that - - other matter you're referring to, Mr O'Toole, which is not to do with this case, is that the remedy in that case was to seek consent orders for the - - for the late - - for the filing out of time. MR O'TOOLE: Yes, and I was forced into a situation in that matter of a - of a - - incurring more costs where the situation requires to be quick, efficient and - - and less costly. And I had to go to a - - to a matter of an interlocutory to get that in. That thing was done at your request, but now where's the consistency with what's happening with arbitrators down here? A thing being done one way with solicitors and matters being - - when I'm involved I'm being shot down when the solicitor can do as they like in that very same - - in the matter of Patel (?), was it, where - - the situation where you made one decision in the set of circumstance - - I made an application. Another arbitrator, the next day, with exactly the same circumstances, let both the reports in. Where's the consistency? ARBITRATOR: Well - - MR O'TOOLE: There isn't any. ARBITRATOR: - - I make decisions as I - - MR O'TOOLE: I'm being shot down in this directorate by certain arbitrators. ARBITRATOR: Well, Mr O'Toole - - MR O'TOOLE: And it's consistent. Not just today. Mr Patrai (?) - - same situation recently. MS SKERMAN: Sorry, Mr Rutherford, with respect to this application we'd also suggest that there's a discretion to - - that our document's out of time in any case. ARBITRATOR: Where does that discretion come from? MS SKERMAN: I can't …(indistinct)… the rules, but it's - - I'm just thinking that the rule in terms of late - - filing late documents, provided that no prejudice is caused to the other party, and we suggest in this case it's - - there's no new issues. It's be - - all the issues have been live since the application for conciliation - - and have been conciliated. MR O'TOOLE: The situation, sir, out there, is that - - MS SKERMAN: And the prejudice to my client is very, very real if that document is not allowed, particularly when, in our submission, it was actually filed within the time limit. MR O'TOOLE: The situation out there is that insurance lawyers are leaving matters to be filed to the very last minute, and that's to further frustrate the - - MS SKERMAN: Mr O'Toole, I take offence at that. MR O'TOOLE: I - - MS SKERMAN: It was - - obviously I'm trying to …(indistinct) … the system, so - - MR O'TOOLE: - - I didn't interrupt you Ms Sherman[sic]. I'll - - glad if you don't interrupt me. They are leaving these matters to the last minute to frustrate the representatives of workers, whether we're independent practices or legal representatives, or whoever's representing the worker. It's being done as a deliberate act day after day after day. Here they've sailed too far - - too close to the wind. As I understand it, the matter would have been rejected - - able to be rejected by you, and here we are now. Be - - I'm being told you're going to let them in. ARBITRATOR: That's right, I am. I'm letting it in because I'm not satisfied that it was filed late. And in any event, even if it was, it was at best filed one day late, and I'm not satisfied that it's appropriate to resolve this matter on the basis that this should proceed as an undefended matter. That would be the effect of the application, where there's clear evidence before me why the respondent has issues in relation to the claim it's got. MR O'TOOLE: But - - ARBITRATOR: It's appropriate the matter be dealt with in that way. MR O'TOOLE: With respect, sir, the previous matter I had before you where you rejected mine and I had to go to the problem - - extra expense and costs and so forth for interlocutory, that was one day late too. One working day late, and you knocked it back, and I had to go to all the - - the difficulty - - come down here specifically on an interlocutory. ARBITRATOR: Yes, and - - MR' O'TOOLE: Where's the consistency? ARBITRATOR: The consistency is relating to that application, which is not this matter, and - - MR O'TOOLE: I'm - - I'm conscious of that. I look for consistency through the whole situation. ARBITRATOR: Well - - well, can I tell you that - - MR O'TOOLE: We get into the District Court - - ARBITRATOR: Let me talk for a minute, please. Now, consistency in relation to that particular matter - - talking about is in that matter on a previous situation. The other party had filed documents late - - MR O'TOOLE: Yes. Well, I - - ARBITRATOR: - - and I rejected them on the same basis. They then had to take an interlocutory application. Both parties were treated equally. MR O'TOOLE: I agree with that. I - - but we're not being treated equally here. That's the situation. I've been - - and - - me and my clients are being shafted by some arbitrators in this jurisdiction, and I'm not going to step away from it. The time has come. ARBITRATOR: Well - - MR O'TOOLE: The time has come. ARBITRATOR: - - what does that mean? MR O'TOOLE: Say again? ARBITRATOR: What does that mean, the time has come? MR O'TOOLE: Just what it says. ARBITRATOR: No, I don't know what it says. What do you mean by that? MR O'TOOLE: That clients who are being - - are represented by me - - and I'm not going away, I'm staying here - - are being put at a disadvantage by some arbitrators because I act for them. There have been plenty of - - plenty of times in the past when I've objected to one particular arbitrator on a - - on the grounds of bias, and since the last time I did it, something like 12 to 14 months ago, he's not - - I've not been back before him. ARBITRATOR: Right. MR O'TOOLE: On the basis of bias. I haven't raised it against you yet, sir. If I'm given cause to in the future, it may well be that I will, if I'm given cause to. And that's not an allegation - - ARBITRATOR: You - - MR O'TOOLE: - - because I say … (indistinct) … if I'm given cause to I will - - I will ground - - raise such a mater on proper grounds and raise it properly. ARBITRATOR: Well, of course that's the case. Every party's got that right. MR O'TOOLE: And that's my entitlement. ARBITRATOR: Yes. MR O'TOOLE: The time has come. The time's here. It's here today. ARBITRATOR: Okay. Are you raising a matter of bias against - - now? Is that what you're saying? MR O'TOOLE: Am I? ARBITRATOR: Yes. MR O'TOOLE: I said - - I said the time has not come for me to do that with you yet. ARBITRATOR: You just told me just now the time has come, and I'm trying to understand what you're saying by that. MR O'TOOLE: If the time has come - - when the time comes I will make a proper application on the proper documentation that you should disqualify yourself. ARBITRATOR: You're not making an application just now? MR O'TOOLE: No. ARBITRATOR: Then why are you raising it? MR O'TOOLE: Because I'm looking for consistency, that's all. ARBITRATOR: What does consistency got to do with bias? MR O'TOOLE: The consistency of the situation in the matter where - - I'm not going to go back over the history. You know the history as well as I do. You also know the history - - you might not know that the very next day, in exactly the same circumstances as I - - with Patel, another arbitrator let the two reports in from the one practice one speciality. You knocked it back. The next day another man allowed it in. ARBITRATOR: Well, that's the nature of the beast, Mr O'Toole. The arbitrators have - - MR O'TOOLE: That's why I'm saying there's inconsistency. ARBITRATOR: - - arbitrators have a discretion. They call it as they see fit. MR O'TOOLE: I know. We know. Unfortunately, we do know. ARBITRATOR: I want to deal with this matter here. Not other matters, not other arbitrators. MR O'TOOLE: No. ARBITRATOR: I want to deal with this matter here. MR O'TOOLE: Yes. Well - - ARBITRATOR: You've made an application and I've rejected it. I can't see any - - MR O'TOOLE: I'm bound by your ruling. ARBITRATOR: Well, that's - - that's - - that's my decision in this matter. I'm not granting the application to deal with the matter under rule 27. MR O'TOOLE: Now I'm bound by it. ARBITRATOR: What other orders are you looking for today, Mr O'Toole? MR O'TOOLE: No point in me making any application for orders. ARBITRATOR: Again, I don't understand. Are we not wanting this matter to proceed? MR O'TOOLE: The matter - - I want the matter to proceed - - to proceed quickly and get a decision quickly. ARBITRATOR: Yes, and every party does here. So in that regard, are you seeking any orders from me? MR O'TOOLE: I'm instructed in the matter that there are other documents to be filed by my client - - 37 The hearing before Arbitrator Rutherford appears to have started, and after the dialogue referred to in the transcript above, concluded, cordially. The following extracts from the transcript are significant. The applicant's comments: • 'I'm being shot down in this directorate by certain arbitrators' (T:6; 11.06.13). • '[I]nsurance lawyers are leaving matters to be filed [at] the very last minute, and that's to further frustrate the representatives of workers … [and that is] being done as a deliberate act day after day after day' (T:7; 11.06.13). • '… we're not being treated equally here … me and my clients are being shafted by some arbitrators in this jurisdiction, and I'm not going to step away from it (T:8; 11.06.13). • 'The time has come' (T:8; 11.06.13) (emphasis added). He repeated that 'the time has come', and when asked by the arbitrator what does that mean, he simply says, 'Just what it says'. • He has been put at a disadvantage by some arbitrators '[o]n the basis of bias. I haven't raised it with you yet, sir' (emphasis added). 'If I'm given cause to in the future, it may well that I will, if I'm given cause to. And that's not an allegation' (T:9; 11.06.13). • 'The time has come. The time's here. It's here today' (T:9; 11.06.13). • When the arbitrator specifically asked him whether he was raising the matter of bias against him, the arbitrator, the applicant replied, 'I said the time has not come for me to do that with you yet' (emphasis added) (T:9; 11.06.13). • '[W]hen the time comes I will make a proper application … that you should disqualify yourself' (T:9; 11.06.13). 38 The Tribunal regards the use of the word 'yet' on two occasions as particularly significant. The Tribunal finds that the applicant was raising the spectre of a potential claim of bias against the arbitrator. The word 'yet' could only be construed, in the Tribunal's view, as a warning in that context and the Tribunal finds that it was meant as such a warning. 39 The Tribunal finds that the applicant did not give a full and frank account of his intentions as to what exactly he meant during the exchanges referred to. To say to an arbitrator that others in that person's position or jurisdiction are trying to 'shaft' him or 'frustrate' him and his clients is discourteous and inappropriate, as indeed it was for the applicant to blame the system by inappropriate and discourteous comments to the arbitrator. 40 During crossexamination, the applicant acknowledged that he had seen and read the transcript giving rise to this complaint. He did not, he stated, regret what he said nor would he accept that he had gone too far and said that he would 'do it again tomorrow'. The Tribunal finds that that clearly demonstrates that the applicant has no understanding of what bias in the legal sense means, nor does he have any understanding of the common courtesies required by an advocate appearing in any jurisdiction. He said later that he was talking about that the time had come for 'consistency'. He added that through this experience he has learnt to be 'a bit more temperate' and that it has caused him to look at his situation. Notwithstanding his evidence that he would learn to be a bit more temperate, he added that he would talk to an arbitrator in the same terms if needs be. He acknowledged in crossexamination that he had previously been cautioned by WorkCover WA about the way he spoke to arbitrators after complaints were made, but that he would continue his conduct if he thought he was right. He clearly showed no insight as to the duties of an advocate appearing before an arbitrator. The applicant did not apply for an order that the arbitrator give evidence in person nor attend for crossexamination. 41 The Tribunal finds that these complaints are proven and are serious breaches of cl 2(1) and cl 5(3) of the Code.
The local government complaint 42 The respondent relied on the documentary evidence to support this complaint. The President of the local government was called as a witness. The President gave evidence at the hearing on oath and was crossexamined. The applicant's client, being a female officer of the local government, was also called as a witness by the applicant. 43 The documents relied on included Exhibits 1 and 2 tendered at the hearing, being the original complaint from the local government and the statement of the President. The nature of the complaint was that the respondent received a complaint from the President in relation to a telephone call which he had with the applicant on 3 April 2013. The respondent wrote to the applicant concerning this complaint on 4 July 2013. The tenor of the letter was that the President had complained that the applicant's call was intended to intimidate him and to influence settlement negotiations. 44 In that letter the respondent summarised the President's allegations as follows. That is, the applicant: a) said his client, the female officer, was in a relationship with the CEO of the local government and that his client only submitted to the CEO because she was in fear of losing her job; b) said that sex in those circumstances was rape; c) made several references to his friendship with a named prominent Queen's Counsel, such that a reasonable person would infer that the applicant meant to suggest that that Queen's Counsel had given the applicant legal advice regarding rape; and d) said that the settlement figure that the local government had offered was 'ridiculous'. 45 The respondent went on to say that it was investigating whether that complaint constituted a breach of clause 2 of the Code and required the applicant to provide a written response. The applicant did respond to that complaint by letter of 23 July 2013 (Exhibit 5 tendered at the hearing) in which he admitted the factual allegations but denied that his conduct was inappropriate. Specifically, the applicant agreed that he had made the phone call on 3 April 2013 and had said to the President that: a) his female client was in a relationship with the CEO and only submitted to him because she was in fear of losing her job; b) that if what his female client said was true, 'it constituted rape' and that was the applicant's legal advice; c) that the applicant did have a close friendship with the named Queen's Counsel and that he had told the President that they both had an interest in horses; and d) that the settlement offer was 'inadequate/ridiculous or some such words'.46 In that same letter, the applicant had also said that immediately before calling the President that he and the applicant had attended a negotiation for settlement in which the parties were 'only $20,000 apart'. In that same letter the applicant said: a) 'Firstly I ONLY ACT ON INSTRUCTIONS from my Client and I AM BOUND by my instructions' (emphasis in original letter); b) that the conversation with the President was done outside the context of the negotiation; and c) that he had sought advice but neither the respondent nor the President knew whether he took advice from a prominent lawyer or otherwise. 47 By letter dated 9 August 2013 (Exhibit 8 tendered at the hearing) the respondent advised the applicant that it had considered the applicant's letter of 23 July 2013 and found that: a) the applicant's comments cannot reasonably be considered to be anything other than an attempt to further his client's case by raising an allegation of rape; b) the suggestion that the applicant is bound unequivocally by his client's instructions is misconceived and unfounded; and c) subject to any further submissions, the applicant's conduct presently appeared to constitute a breach of clause 2(1) of the Code. 48 The respondent invited the applicant to provide further written submissions following which the respondent would make a final determination on whether or not to take disciplinary action. The respondent added that 'it was possible that the disciplinary action may result in either suspension or cancellation of the applicant's registration'. 49 In his letter of response dated 9 September 2013 (Exhibit 7 tendered at the hearing) the applicant said: 50 The respondent, based on those submissions, submitted that the submissions could only mean that the applicant considered his conduct was not in breach of the Code because he was acting on instructions. In that same letter of 9 September 2013 the applicant declined to provide any submissions regarding appropriate disciplinary action saying: You clearly have only considered two options in the matter of the five that are available to you for penalty. … 51 In its final decision, Exhibit 8 already referred to, the respondent said inter alia that the conversation with the President and the allegations made cannot reasonably be considered to be anything other than an attempt to further the female officer's case by unethical means and that registered agents must not attempt to further the client's case by unethical means, even if instructed to do so by a client. 52 The Tribunal finds that the President was a truthful witness. He did his best to be as accurate as possible. He did not attempt to exaggerate and he gave his evidence based on his best recollection. He was shocked at the allegations made concerning the CEO and was clear in his evidence that the applicant said that he had taken advice from the prominent named Queen's Counsel concerning his client's claim and that the evidence, if proven, would constitute rape. The Tribunal accepts the President's evidence, notwithstanding that he could not always recall exact words. The President did say that he felt 'a bit intimidated' and that he had trouble convincing the applicant that he did not wish to get involved in the personal affairs of the staff. 53 Whether it was or was not an obligation of the President to so get involved is not relevant to these issues and is not a matter for this Tribunal to make a finding on. The issue is the fact of threats and intimidation upon the President by the applicant. Whether the President was or was not factually intimated is also irrelevant. He was adamant he felt the applicant was attempting to intimidate him and that he felt 'a bit intimidated'. He gave evidence that he was an expoliceman. Insofar as his delay in making a complaint, some three months, he thought it was reasonable given the fact that he was hopeful that the matter would resolve. In the Tribunal's view, that was a reasonable view to take. The delay did not affect the substance of the complaint. 54 The female officer whose worker's compensation case the applicant was handling, gave evidence. The Tribunal finds that her evidence was generally truthful. She stated that she was fighting to keep her job. She had employed the applicant to assist her in her claim and that her issue was not about money, it related to just simply keeping her job. In her evidence she stated that the applicant had told the President during the telephone conversation, at which she was present and could hear clearly, that he had discussed the case with Mr [prominent Queen's Counsel]. She denied that the applicant said that the settlement figure was 'ridiculous'. She said he said it was 'inadequate'. There was some variance between their evidence concerning the monetary aspect of her claim. She said that that was not important, and yet the applicant said that she had given him a monetary figure at which she would settle. The Tribunal finds that the female officer's concerns about the knowledge of the Council relevant to her worker's compensation issues are of no relevance to the applicant's conduct relating to these complaints, nor would such concerns excuse the applicant's conduct.
The applicant's evidence 55 The applicant gave evidence that after a meeting with the CEO and another and his client to attempt to settle or negotiate on his client's behalf, he had the view that his client would have 'been happy to resign if the matter was settled on her terms'. This is contrary to his client's evidence that she would not have been happy to resign and that the whole meeting was about keeping her job, as far as she was concerned. Whilst the female officer stated that she wished to avoid publicity, the Tribunal finds that the applicant in fact enhanced potential publicity by telephoning the President. The applicant said that the call to the President was a factfinding mission, to find out how much the Council actually knew about the allegations. Whilst that may have been the case to start with, it certainly did not continue so, given that the applicant clearly and concisely put to the President that if his client's allegations were true, it constituted rape. When questioned about the mention of the prominent Queen's Counsel's name, he denied, despite extensive crossexamination, that he stated that he had discussed the case with that particular counsel. He said that he must have 'inadvertently mentioned' that person's name, but did not say that he had taken advice from him. Whether in fact he did or did not take advice from that Queen's Counsel is irrelevant. What is relevant is that he said he did. The Tribunal finds, having accepted the evidence of the President and the female officer, that that was attempting to put extra pressure on the President. The applicant's evidence was that the purpose of talking to the President was not to enhance settlement; it was to find out how much the Council knew about his client's stress claims. Notwithstanding the mention of the advice from the Queen's Counsel and that if the allegations were true the conduct of the CEO constituted rape, he denied putting pressure or attempting to put pressure on the President. He stated that he did not need assistance to increase the settlement. If that were so, it begs the question as to why he phoned and mentioned the settlement or that it was inadequate or ridiculous, or why he referred to the Queen's Counsel's advice. 56 In his evidence under oath in chief, the applicant said that he did not mention the settlement at all in his conversation with the President but when shown his statement (Exhibit 19 tendered at the hearing), he conceded that he said (paragraph 73): I note that [the President's] statement said that I used the word ridiculous. I did not say the offer was ridiculous but I said it was 'inadequate'. 57 In her written statement (Exhibit 18 tendered at the hearing), the female officer, at paragraph 45, said: I remember Mr O'Toole said the offer was inadequate. 58 Under crossexamination, he said that he did not consider the code of conduct before he made the call. He was asked which he would regard as paramount the code of conduct or his instructions and his answer was that if there was a conflict or if he was asked to do something unlawful he would seek advice. This, in the Tribunal's view, shows a complete lack of insight or understanding as to his obligations under the Code. A competent agent, if asked to do something unlawful, would not need to seek advice whether to act on such instruction. 59 The Tribunal finds that the applicant's evidence was untruthful in many relevant respects. He was untruthful in that he denied that he told the President that he had taken advice from the prominent Queen's Counsel and that that advice was that the facts, if proven, constituted rape on the female officer concerned by the CEO. The female officer's evidence contradicted the applicant's evidence in this regard, as did the evidence of the President. The Tribunal finds that the evidence of the female officer and the President is preferred to the evidence of the applicant. Further, the applicant denied that by making an accusation of rape by the CEO on the female officer together with saying he had taken advice from the Queen's Counsel was intended to intimidate or pressure the President to further his client's settlement. The Tribunal finds that this conduct is clearly unethical and that the only inference could be that it was to intimidate the President so as to increase the settlement offer. 60 Not once in his evidence in regard to any of the complaints did the applicant express any remorse, contrition or offer any apology. He continued to assert that he had done nothing wrong. The allegation of rape by the CEO on the female officer, to the President in the absence of and concerning the CEO is in the Tribunal's view quite outrageous to say the least. 61 The Tribunal finds the local government complaint proven and that the applicant has breached cl 2(1) of the Code. His conduct in the course of matters giving rise to this complaint constituted a very serious breach of the Code.
Penalty options under reg 39 of the Regulations 62 The penalty options under reg 39 of the Regulations are: (a) Either reprimand or caution the registered agent;
(b) Attach a condition to the registration;
(c) Suspend the registration for a period not exceeding 12 months; or (d) Cancel the registration. 63 So far as the penalty options are concerned, it is the Tribunal's view that the conduct of the applicant in totality is far too serious to seriously consider either of the options in regs 39(a) or 39(b). The applicant has previously been cautioned in respect of 13 prior complaints and yet he has again reoffended. The Tribunal finds that in addition to the serious nature of the complaints, certainly the Rutherford and the local government complaints, that no reasonable condition attached to his registration could or would satisfy the public interest in allowing the applicant to continue to practise. The applicant is a mature man with extensive experience in the worker's compensation jurisdiction. To now send him to courses on ethics and advocacy would, in the Tribunal's view, serve little or no purpose, the more so, given his lack of remorse or contrition and lack of understanding of the Code which is not a complicated document. In closing submissions the Tribunal was informed that the applicant had had some counselling prior to these matters which did not appear to help him. That submission was not disputed by the applicant's counsel.
Previous breaches of the Code by the applicant 64 Between the period 2009 to 2013 the respondent found that the applicant had breached the Code 13 times. These breaches are summarised as follows: 1) In respect of a client Suero breaches of clauses 8(1), 8(3) and 9, being failure to advise his client as to the maximum costs payable, the calculation of costs, and failure to keep adequate records (five breaches). 2) In respect of complaints by Arbitrator Melville, breaches of clauses 1(c) and 5, being complaints of alleged bias, disrespect and argumentative and inappropriate conduct to the arbitrator during hearings in May 2009 and April 2012 (four breaches). 3) In respect of a client Mackie, a breach of clauses 9(1) for failing to keep adequate time records. 4) In respect to Ms Lloyd, the then Director of the Dispute Resolutions Directorate, breaches of cl 5(3) for being discourteous to her (three breaches). 65 In respect of all these breaches the applicant was cautioned in writing that further breaches of a similar nature may lead to additional disciplinary action. There was no dispute at the hearing as to the fact that the applicant had been so cautioned in respect of those breaches. 66 The Tribunal finds that, as stated in Legal Profession Complaints Committee v O'Halloran[2013] WASC 430 (O'Halloran), at paragraph 93, that the past findings against the applicant are relevant to the consideration of penalty in this case. As in O'Halloran, these past findings are not relied upon in order to punish the applicant. His past conduct is relevant to the consideration of whether he is a fit and proper person to practise as a registered agent because it illustrates that the incidents which are the subject of the findings in these matters are not isolated occurrences: see also Legal Practitioner Complaints Committee v Pepe [2009] WASC 39 at paragraph 10, referred to in O'Halloran above. It is also noted that the conduct the subject of this application arose after the past findings when the applicant had been put on notice about future breaches of the Code.
DECISION 67 So, in essence, it comes down to this: should the applicant's registration be suspended or should it be cancelled. Cancellation must be reserved for the most serious cases. In the Tribunal's view this is a matter very similar to the seriousness and finality of a decision to strike off a lawyer, medical practitioner, or, indeed, any other professional. The Tribunal finds that the applicant was deliberately untruthful in his evidence and that this untruthfulness under oath, together with his lack of insight as to his obligations under the Code, seriously and clearly indicate that the applicant is not a fit and proper person to practise as a registered agent. 68 In deciding whether to suspend or cancel the applicant's registration and given that the applicant's occupation was very much akin to a barrister or solicitor, the Tribunal finds that the principles and authorities in relation to conduct by barristers or solicitors which will result in a suspending or striking off of that barrister or solicitor are very persuasive to this Tribunal's decision. As was held by the Tribunal in Legal Profession Complaints Committee and O'Halloran[2011] WASAT 95, at [9] and [10] thereof: The principles to be applied in relation to the imposition of disciplinary penalties are well established. The object of disciplinary proceedings is the protection of the public and the maintenance of proper standards in the legal profession, rather than punishment - Re Maraj (a legal practitioner) (1995) 15 WAR 12 at 24 - 25. Disciplinary proceedings fulfil an important function of conveying to other members of the profession, and reassuring the public, that professional misconduct is unacceptable and is dealt with seriously - Thomas and The Medical Board of Western Australia [2005] WASC 244 at [82] per Hasluck J; Craig v Medical Board of South Australia (2001) 79 SASR 545 at 554 [47]. 69 Further, as was held in Legal Profession Complaints Committee and in de Braekt (2013) WASC 124, at [25] to [26], and [28] to [29]: Where the motion is to strike a practitioner from the Roll, the critical question for the court is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner: Ziems (297 - 298) (Kitto J, Dixon CJ, McTiernan and Fullagar JJ agreeing) … . … Fitness to practice [sic] law requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges: In re Davis (1947) 75 CLR 409, 420 (Dixon J) … . … Striking off is an order reserved for very serious cases, where the character and conduct of the practitioner is seen to be 'inconsistent with the privileges of further practice': Barristers' Board v Darveniza [2000] QCA 253[.] … While a practitioner should advocate fearlessly on behalf of the interests of their client, that is not an excuse for discourtesy. As Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ stated in Clyne v New South Wales Bar Association (1960) 104 CLR 186. … Discourtesy can undermine the reputation and standing of the legal profession in our community, and the efficient function of the legal system itself. … 70 Whilst there are many decided cases concerning fitness to practise various professions, the different circumstances in each case explain the numerous differences in outcomes. The appropriate penalty in any given case will always depend upon its particular circumstances. Whilst comparative cases may be helpful in establishing legal principles, they do not necessarily assist in determining the penalty to be imposed. As stated earlier, the Tribunal regards the principles relative to disciplining of legal practitioners as being apposite here. During the hearing and in his written submissions the applicant showed no remorse, he was not contrite, he did not acknowledge any errors and he was not apologetic to any of the complainants. His continued denial of any wrongdoing shows a complete lack of understanding and insight into his obligations as a registered agent. 71 On its own, the Callander complaint on the evidence did not support a finding that the applicant's registration should be cancelled. However, taken together with the other two complaints, the Tribunal finds that the original decision should be affirmed and the applicant's registration should be cancelled. The factors in favour of a cancellation far outweigh a suspension. Discourtesy to a bench or any judicial or quasijudicial officer and a threat albeit veiled to such officer cannot be tolerated. Intimidating tactics to advance a client's settlement, particularly through the President of a local government can also not be tolerated. The Tribunal has found that the applicant was dishonest under oath during the Tribunal hearing. The applicant has had 13 prior cautions and has continued to show a persistent disregard to the duties of a registered agent. The applicant showed a distinct lack of appreciation of the impropriety of his conduct and lack of insight into the reasons for his misconduct. Such matters significantly increase the risk of reoccurrence. This Tribunal can have no confidence that the applicant would conduct himself in a satisfactory manner in the future, if he was permitted to remain as a registered agent. It is clearly in the public interest, both in respect of protection of the public and the maintenance of the reputation and standards of those of registered agents in the worker's compensation field, that the practitioner's registration as a registered agent be cancelled.
Conclusion 72 The conduct complained of by the respondent in these proceedings against the applicant, particularly the Rutherford and local government matters, are very serious and merits a condign outcome. 73 The Tribunal, taking all three proven complaints into account and in totality respectfully agrees with the findings of the respondent and therefore affirms the respondent's decision to cancel the registration of the applicant as a registered agent.
Order The Tribunal affirms the decision of WorkCover WA to cancel the registration of the applicant as a registered agent. |