OSWAL and LEGAL PROFESSION COMPLAINTS COMMITTEE - [2015] WASAT 14

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION: OSWAL and LEGAL PROFESSION COMPLAINTS COMMITTEE [2015] WASAT 14

MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)
MR M SPILLANE (SENIOR MEMBER)
MS R MOORE (MEMBER)

HEARD: 2 FEBRUARY 2014

DELIVERED : 16 FEBRUARY 2015

FILE NO/S: VR 179 of 2014

BETWEEN: RADHIKA OSWAL
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
TIMOTHY BURROWS
Second Respondent

Catchwords:

Complaint against legal practitioner - Unsatisfactory professional conduct - Complaint dismissed by Legal Profession Complaints Committee - 'No reasonable likelihood'

Legislation:

Legal Profession Act 2008 (WA), s 424, s 425, s 427
Legal Profession Conduct Rules 2010 (WA), r 34, r 35, r 36

Result:

Application dismissed

Summary of Tribunal's decision:

On 25 October 2013, Ms Radhika Oswal made complaints to the Legal Profession Complaints Committee, against Mr Timothy Burrows, who had acted for the Deputy Commissioner of Taxation in two proceedings in the Federal court - WAD 95 of 2011 and WAD 264 of 2012.
The complaints made by Ms Oswal to the Complaints Committee were summarised by the Committee as follows:
1.failure to make reasonable enquiries;
2.failure to disclose existence of mortgage annexed to Logue affidavit at ex parte hearing;
3.made misleading statements in application to amend statement of claim; and
4.failure to correct previous incorrect statements made to the Court.

On 29 March 2011, the Deputy Commissioner of Taxation commenced Federal Court proceedings against Ms Oswal to recover a taxation debt and then on 31 March 2011, sought ex parte freezing orders against Ms Oswal's assets.
Mr Burrows settled an affidavit sworn on 28 March 2011 by an employee of the Australian Taxation Office, annexing a complete copy of a Landgate search of a mortgage registered against the properties Ms Oswal owned in Western Australia
Ms Oswal's solicitors filed an affidavit sworn by her on 26 May annexing an incomplete copy of the mortgage.
In October 2012, Federal Court proceedings (WAD 264 of 2012) were commenced by the Deputy Commissioner to set aside the mortgage on the basis that Ms Oswal had engaged in fraud or serious misconduct. In December 2012, in WAD 264 of 2012, Mr Burrows prepared a statement of claim which relied on the Oswal affidavit annexing the incomplete copy of the mortgage filed in WAD 95 of 2011.
In effect, Ms Oswal complained that Mr Burrows did not have reasonable grounds for his belief that Ms Oswal had engaged in fraud or serious misconduct.
In addition, when the Deputy Commissioner applied ex parte for alternative service orders against Ms Oswal in December 2012, in WAD 264 of 2012, Mr Burrows prepared submissions based on the incomplete copy of the mortgage. At the relevant time, he had no recollection of the existence of the complete copy of the mortgage filed in WAD 95 of 2011.
In August 2013, Mr Burrows became aware that a complete copy of the mortgage existed and made an application to amend which was listed for hearing on 16 September 2013. In the course of the hearing, he initially misstated when he became aware of the existence of a complete mortgage.
The Tribunal found that Mr Burrows:
1.made reasonable enquiries;
2.did not fail to disclose the existence of the mortgage annexed to the Logue affidavit at the ex parte hearing;
3.did not make misleading statements in the application to amend the statement of claim; and
4.did not fail to correct previous incorrect statements made to the Court.

The Tribunal therefore concluded that there is no reasonable likelihood that Mr Burrows would be found guilty by the Tribunal of any of the complaints made to the Complaints Committee by Ms Oswal.
Accordingly, Ms Oswal's application was dismissed.

Category: B

Representation:

Counsel:

Applicant:     Ms J Wright
First Respondent           :     Ms D Mahielpala
Second Respondent      :     Ms F Vernon

Solicitors:

Applicant:     Kennedys Pty Ltd Lawyers
First Respondent           :     Legal Profession Complaints Committee
Second Respondent      :     Tottle Partners

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

Greenwood and Legal Profession Complaints Committee [2010] WASAT 31

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This application arose as a result of a statement that a mortgage was incomplete in an affidavit of the applicant, Ms Radhika Oswal. That affidavit was sworn on 26 May 2011. The evidence shows that, in fact, the mortgage was complete.
The affidavit in question was prepared by Mrs Oswal's solicitors and filed in Federal Court proceedings against her by the Deputy Commissioner of Taxation - WAD 95 of 2011.
In her affidavit, Ms Oswal swore that, on 24 December 2010, Mortgage L517813 (the Mortgage) was registered against properties that she owned in Dalkeith and Peppermint Grove, Western Australia. The mortgagee was Mercury Services Ltd.
Ms Oswal annexed an incomplete copy of a Landgate search of the Mortgage to her affidavit. Ms Oswal's affidavit specifically noted that the annexed Mortgage did not include pages 3 to 58 inclusive.
In fact, a complete copy of the Mortgage had been lodged at Landgate. Why or how an incomplete copy of the Mortgage was annexed to Ms Oswal's affidavit of 26 May 2011 was not explained by her in these proceedings.
Mr Timothy Burrows, the second respondent, acted for the Deputy Commissioner of Taxation throughout the period. He relied on Ms Oswal's affidavit of 26 May 2011 and the annexures, including the incomplete Mortgage on two occasions. He did so as follows:
•Firstly, in preparing a Statement of Claim in October 2012 filed in Federal Court action WAD 264 of 2012. That Statement of Claim pleaded that the Mortgage was incomplete see paragraph 15.1. Paragraph 15.1 was part of a detailed plea of fraud.
•Secondly, in December 2012, in preparing submissions in support of an ex parte application for alternative service on Ms Oswal of the proceedings in WAD 264 of 2012. Mr Burrows again referred to an incomplete Mortgage.
Although Mr Burrows did not recollect, in either October or December 2012, a complete copy of the Mortgage had been annexed to an affidavit he prepared, and was sworn by Ms Betty Jane Logue (the Logue affidavit), an employee of the Australian Taxation Office, on 28 March 2011, in Federal Court proceedings WAD 95 of 2011.
Ms Oswal accepts that Mr Burrows did not have a recollection of the Logue affidavit at the relevant times.
In August 2013, counsel for the Deputy Commissioner queried the incomplete Mortgage. Mr Burrows ordered a Landgate search and checked the Logue affidavit. As a result, it became apparent to him that there was a complete Mortgage and that paragraph 15.1 of the Statement of Claim filed in WAD 264 of 2012 should be withdrawn because there was a complete Mortgage.
Mr Burrows filed an application to amend the Statement of Claim. There was a related amendment to paragraph 16 of the Statement of Claim, but for present purposes, it is sufficient to focus on paragraph 15.1 of the Statement of Claim.
The affidavit in support of the amendment exhibited a complete Landgate search of the Mortgage. It did not refer to the Logue affidavit.
The application to amend was opposed by Ms Oswal. Why the application was opposed was not explained by Ms Wright, counsel for Ms Oswal in the Tribunal proceedings.
The application to amend the Statement of Claim so as to withdraw paragraph 15.1, the plea that the Mortgage was incomplete, was heard by Justice Gilmour on 16 September 2013.
At the hearing on 16 September 2013, Mr Burrows initially misstated when he became aware that paragraph 15.1 of the Statement of Claim was incorrect.
Ms Oswal made complaints to the Legal Profession Complaints Committee (the Complaints Committee) about Mr Burrows on 25 October 2013. The details of the complaints are set out in the Complaints Committee's letter of 4 September 2014 under the following headings:
1.Failure to make reasonable enquiries;
2.Failure to disclose existence of mortgage annexed to Logue affidavit at ex parte hearing;
3.Made misleading statements in application to amend statement of claim; and
4.Failure to correct previous incorrect statements made to the Court.
On 4 September 2014, the Complaints Committee dismissed Ms Oswal's complaint.
Ms Oswal seeks a review of the Complaints Committee's decision under s 427 of the Legal Profession Act 2008 (WA) (LP Act).

The issues before the Tribunal

At the hearing before this Tribunal four issues remained for determination in relation to whether Mr Burrows engaged in unsatisfactory professional conduct. Specifically, did Mr Burrows engage in unsatisfactory professional conduct:
a)by pleading an incomplete Mortgage at paragraph 15.1 of the Statement of Claim in WAD 264 of 2012 when he relied only on the affidavit of Ms Oswal of 26 May 2011;
b)by referring to the incomplete Mortgage at paragraph 31(g) of the submissions filed in December 2012 in support of the ex parte application in WAD 264 of 2012, seeking an alternative service of the affidavit of Ms Oswal.
c)in making the application to withdraw paragraph 15.1 of the Statement of Claim,
i)by referring only to the Landgate search of the Mortgage and not to the fact that a complete copy of the Mortgage had been annexed to the Logue affidavit of 28 March 2011 filed in WAD 95 of 2011; and
ii)by not communicating the fact that he was previously aware of Ms Logue's affidavit but that he did not recollect it until late August 2013,
to the Court and to Ms Oswal's solicitors.
d)at the hearing of 16 September 2013 by stating that he had only become aware of the Logue affidavit that day where in fact he was aware of it at least by 23 August 2013.

The relevant statutory provisions

Section 424 of the Legal Profession Act 2008 (WA) provides:
Decision of Complaints Committee after investigation
(1)After an investigation under section 421 is completed, the Complaints Committee must
(a)in the case of the investigation of a complaint, dismiss the complaint under section 425 or, in the case of an investigation on the initiative of the Complaints Committee, decide to take no further action; or
(b)take action under section 426; or
(c)refer the matter to the State Administrative Tribunal under section 428.
(2)Nothing in this section affects section 416.
Section 425 of the Legal Profession Act provides:
Dismissal of complaint
After an investigation of a complaint against an Australian legal practitioner is completed, the Complaints Committee may dismiss the complaint if satisfied that
(a)there is no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct; or
(b)it is in the public interest to do so.
The Legal Profession Conduct Rules 2010 (WA) (the Conduct Rules) relevantly provide:
34.Frankness in court
…
(4)A practitioner seeking any interlocutory relief in an ex parte application must disclose to the court all factual and legal matters
(a)that are within the practitioner’s knowledge; and
…
36.Responsible use of court process and privilege
…
(3)A practitioner must not draw or settle any court document that alleges criminality, fraud or other serious misconduct by a person unless the practitioner believes on reasonable grounds that
(a)factual material already available to the practitioner provides a proper basis for the allegation; and
(b)the evidence by which the allegation is made will be admissible; and
(c)the practitioner’s client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the client’s case if it is not made out.
(4)A practitioner must not open as a fact any allegation which the practitioner does not then believe on reasonable grounds will be capable of support by available evidence.

The relevant authority

In Greenwood and Legal Profession Complaints Committee [2010] WASAT 31, a decision of the Tribunal comprising Judge Pritchard (as she then was), Ms Dean and Mr Odes QC at [25] [29] the Tribunal stated:
'Unsatisfactory professional conduct' is defined in s 402 of the LP Act to include conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. 'Professional misconduct' is defined in s 403 of the LP Act to include:
(a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.'
The word 'likelihood' means 'the chance or fact of being likely', and 'a thing that is likely' or a 'probability' (Shorter Oxford English Dictionary, 6th ed, 2007) and the word 'likely' means 'that looks as if it would happen, be realised, or prove to be what is alleged or suggested; probable' (Shorter Oxford English Dictionary). However, the word is qualified by the requirement that the likelihood be 'reasonable'. The word 'reasonable' means 'not greatly less or more than might be thought likely or appropriate; of a fair, average, or considerable amount' (Shorter Oxford English Dictionary).
The meaning of the phrase 'reasonable likelihood' in the context of s 425 of the LP Act is synonymous with the phrase 'reasonably likely'. The meaning of that phrase was discussed in Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 at [842] (Marks J, Young CJ and Teague J agreeing) in the following passage:
The relevant expression here is 'reasonably likely' which has some analogy to 'fair probability'. It suggests the mathematical approach; the word 'reasonably' being a qualification of 'likely', alternatively, a measure in colloquial language of the likelihood.
The expression 'reasonably likely' is substantially idiomatic, its meaning not necessarily unlocked by close dissection. In its ordinary use, it speaks of a chance of an event occurring or not occurring which is real not fanciful or remote. It does not refer to a chance which is more likely than not to occur, that is, one which is 'odds on' or where between nil and certainty it should be placed. A chance which in common parlance is described as 'reasonable' is one that is 'fair', 'sufficient' or 'worth noting'.
Those observations are equally apt to describe the meaning of 'reasonable likelihood' in s 425 of the LP Act.
In considering whether there is a reasonable likelihood that a practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct, it is also necessary to bear in mind the Tribunal's approach to the proof of matters referred to it under s 428(1) of the LP Act. It is well recognised that the consequences for a practitioner of an adverse determination are such that clear and cogent evidence will be required before a finding of unsatisfactory professional conduct or professional misconduct is made: Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42 at [63]. That follows from the fact that although the standard of proof is on the balance of probabilities, nevertheless the Tribunal must feel an 'actual persuasion' of the occurrence or existence of a relevant fact in determining whether or not conduct of that kind has been made out: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 362 (Dixon J).

The factual background

WAD 95 of 2011

On 29 March 2011, the Deputy Commissioner of Taxation commenced Federal Court proceedings, WAD 95 of 2011 to recover a taxation debt. On 31 March 2011, the Deputy Commissioner sought ex parte freezing orders against Ms Oswal's assets, including the properties in Dalkeith and Peppermint Grove, the subject of the Mortgage.
On 28 March 2011, Ms Logue, swore an affidavit in support of the application for freezing orders against Ms Oswal. The Logue affidavit annexed a Landgate search of a complete copy of the Mortgage. Mr Burrows settled the Logue affidavit.
On 18 April 2011, Justice Gilmour made the freezing orders sought in WAD 95 of 2011.
On 26 May 2011, Ms Oswal swore an affidavit filed in WAD 95 of 2011 setting out her assets and liabilities in response to the orders made by Justice Gilmour on 18 April 2011. Ms Oswal relevantly deposed that:
12.On 24 December 2010 mortgage number L517813 was registered against the Dalkeith Property and the Peppermint Grove Property ('Mortgage L517813').
13.Annexed hereto and marked 'RPO4A' is an unsigned copy of Mortgage L517813 and marked 'RPO4B' a copy of the mortgage extracted from a Landgate search conducted on 6 May 2011 (which does not include pages 3 to 58 inclusive).
On 9 August 2011, in WAD 95 of 2011, Justice Gilmour ordered judgment against Ms Oswal for $186,321,790.11.

WAD 264 of 2012

On 5 October 2012, some 17 months after the Logue affidavit had been sworn, the Deputy Commissioner commenced Federal Court proceedings, WAD 264 of 2012, against Ms Oswal. The purpose of those proceedings was to set aside the Mortgage on the basis that Ms Oswal had engaged in fraud. The Statement of Claim, prepared by Mr Burrows, and filed in WAD 264 of 2012, relevantly pleaded:
15.In the version of the Mercury Mortgage appearing in the folio for the Peppermint Grove property and the Dalkeith property, the Mercury Mortgage:
15.1is incomplete;
15.2records the address of Mercury as Apartment 4, Building 99, Gardens behind Iven Baitlutta Mall, Jebel, Ali, Dubai UAE; and
15.3purports to be executed by Ms Oswal and witnessed by a person with an address in Nedlands, Western Australia.
The Statement of Claim goes on to plead:
22Mercury Mortgage [L517813] was made with an intention by Ms Oswal to:
22.1hinder or delay Ms Oswal's creditors executing against the Peppermint Grove property and the Dalkeith property in order to recover their debt; and
22.2therefore with an intention to defraud Ms Oswal's creditors.

Particulars

(1)The Mercury mortgage was made very soon after the events in paragraphs 8 to 12 above.
(2)The purported advances made by Mercury, purportedly secured by the Mercury mortgage, predated the making of the Mercury mortgage.
(3)By reason of the matters referred to in paragraphs 14 and 17 above, the Mercury mortgage was over the whole of the value of the Peppermint Grove property and the Dalkeith property.
(4)By reason of the matters referred to in paragraphs 10.2 and 15.2 above, it is to be inferred that Mercury is an entity which is related to Mrs Oswal.
(5)The inferences arising from the matters referred to in paragraphs 8 18 above [including paragraph 15.1].
(6)Further particulars may be provided after discovery or the issue of subpoenas.

As a result of the above, paragraph 15.1 forms part of a pleading that Ms Oswal had engaged in fraud or serious misconduct.
Paragraph 22 of the Statement of Claim is a plea that Ms Oswal had engaged in fraud or serious misconduct within r 36(3) of the Conduct Rules. As a consequence, Mr Burrows had to believe on reasonable grounds, that there was factual material already available to him that provided a proper basis for his plea that the Mortgage was incomplete.

The particulars to paragraph (5) rely on the inferences arising from paragraphs 8 18, including the plea that the Mortgage was incomplete (paragraph 15.1). Excluding paragraph 15.1, it is nevertheless apparent that the other matters in paragraphs 8 18 provide ample grounds for the pleas in paragraphs 22.1 and 22.2 of the Statement of Claim.
Apart from paragraph 15.1, it has not been suggested in these proceedings that there is no basis for the allegations appearing in paragraphs 8 18 of the Statement of Claim.
In December 2012, the Deputy Commissioner applied ex parte for alternative service orders against Ms Oswal in WAD 264 of 2012. Rule 34(4) of the Conduct Rules applied to this application. In the circumstances, Mr Burrows was obliged to draw to the Court's attention to all factual and legal matters that were within his knowledge that related to that application.
Those orders were ultimately granted by Justice Gilmour on 19 December 2012.
By that time, Ms Oswal had left Australia and was living in the United Arab Emirates.
In the submissions prepared by Mr Burrows in support of the application for alternative service orders (the Submissions), he referred to the Mortgage. The submission stated:
31(g)the documentation of the Mercury mortgage is, at the least, unsatisfactory. No complete, executed copy of the Mercury mortgage appears to exist. The complete copy produced by Mrs Oswal [in] her affidavit is unexecuted, undated and names a mortgagee other than Mercury[.]

The events leading to the withdrawal of paragraph 15.1

In August 2013 counsel for the Commissioner (in WAD 264 of 2012) queried Mr Burrows as to whether it was likely that Landgate would hold an incomplete copy of the Mortgage. He asked Mr Burrows to undertake a Landgate search. Mr Burrows ordered that search on 23 August 2013. On the same day, Mr Burrows also reviewed the papers in WAD 95 of 2011. He located the Logue affidavit, which annexed a complete copy of the Mortgage. Mr Burrows received the Landgate search on 26 August 2013.
On 3 September 2013, Mr Burrows wrote to Ms Oswal's solicitors in the following terms:
1.We refer to the Amended Statement of Claim in this matter and, in particular, paragraphs 15 and 16 of that document.
2.In those paragraphs the applicant has pleaded that:
2.1The version of the Mercury mortgage appearing in the folio for the Peppermint Grove property and the Dalkeith property is incomplete;
2.2The only complete copy of the Mercury mortgage available is the unsigned version described in paragraph 16.
3.Those statements were based on paragraphs 12 and 13 and annexures 'RPO4A' and 'RPO4B' of the first respondent's affidavit of 26 May 2011 in Federal Court proceeding WAD 95 of 2011.
4.A recent search of the Mercury mortgage registered against the titles of the 2 properties at Landgate (the Western Australian Land Titles Office) has revealed that the copy of the mortgage held by Landgate is a complete copy with all pages.
5.In the circumstances, the applicant intends to seek leave at the forthcoming directions hearing to amend paragraphs 15 and 16 of the Statement of Claim in this regard. We enclose for your information a copy of the Minute of Further Amended Statement of Claim for which the applicant intends to seek leave.
…
It was evident from the letter of 3 September 2013 that the Commissioner was not pursuing paragraph 15.1. The fact that the Mortgage was complete provided sufficient basis to justify the withdrawal of the allegation in paragraph 15.1.
On 11 September 2011, Ms Oswal's solicitors, who also represented her in these proceedings, advised that they were instructed to not consent to the amendment (page 795).
On 5 September 2013, Mr Burrows swore an affidavit in support of the application to amend. The affidavit relevantly stated:
3.On 26 August 2013 at my direction a search was made at Landgate, the land titles office in Perth of mortgage numbered L517813 M registered against the titles of [the] Peppermint Grove property and the Dalkeith property (as those properties are described in the Statement of Claim). Annexed hereto and marked 'TPB-1' is a copy of Mortgage L517813 M which was obtained from the search at Landgate.
4.On 3 September 2013 I wrote to the solicitors for the first respondent and the solicitor for the second respondent advising that the applicant intended to seek leave to further amend his statement of claim and the reason for the proposed amendment. Annexed hereto and marked 'TPB-2' is a copy of my letter of 3 September 2013 together with the Minute enclosed with that letter.
The application to amend was listed for hearing on 16 September 2013. On that day, Mr Burrows received the affidavit of Ms Rebekah Ruth Giles, a partner in the firm acting for Ms Oswal (the Giles affidavit), opposing the amendment (pages 896 907). The affidavit, including annexures, was 233 pages long. The annexures for the Giles affidavit were not included in the papers before this Tribunal for the hearing. That affidavit annexed the Logue affidavit as RRG1.
It is difficult to see any basis upon which the application to amend could have been opposed (page 687). A sufficient factual basis for the amendment was provided by the annexure of a copy of the Mortgage to Mr Burrow's affidavit.
The application was heard by telephone conference on 16 September 2013 before Justice Gilmour. Justice Gilmour asked Mr Burrows if he had seen the Giles affidavit sworn on 16 September 2011. Mr Burrows said he had seen it. He noted that he had not read it in detail, and he accepted that a complete copy of the Mortgage was obtained from Landgate in February 2011 and annexed to the Logue affidavit in March 2011. Mr Burrows also accepted that he would have been aware of the complete copy of the mortgage in February/March 2011.
His Honour asked:
When you say 'would have been aware of that', do you mean that you recall that you were aware of that, or not?
Mr Burrows answered:
Well, I no, your Honour, I didn't recall that until today. But I would have been aware at that time that material was filed there was a copy of the mortgage there.
His Honour asked Mr Burrows:
In any event, in answer to Mr Withers' question, you became aware that you had previously known the facts, or your office, including you, had known the fact that there was a complete copy of the mortgage some time after 26 August?
(Page 916)
Mr Burrows effectively answered 'yes'.
Mr Withers, who appeared for Ms Oswal, said:
Your Honour, we do think that that information about the full mortgage having previously been supplied by affidavit to the court and read into evidence is probably something that should have found its way into the 5 September affidavit.
His Honour replied:
Well, why is that? All that Mr Burrows was doing was telling, stating to the court, on oath that an alleged fact was in error and ought to be corrected by way of an amendment, it doesn't seem to me to make a difference either way that what he what he was saying he now knew he had also known prior to the swearing of the affidavit. The fact is the same, isn't it, that the mortgage that was registered is in fact a complete mortgage?
(Page 918)
His Honour gave extempore reasons for judgment on 16 September 2013 allowing the withdrawal of paragraph 15.1. His Honour stated:
5At the hearing of this application there was a preliminary matter, principally raised by the first respondent, based in the content of an affidavit sworn on 16 September 2013, by Rebekah Ruth Giles, a partner in the firm of solicitors acting for the first respondent. Ms Giles, at some length and repeatedly, because there were different contexts in which the matter arose, deposes to the fact that the applicant was aware from at least 10 February 2011, which is the date of the Landgate search in the possession of the applicant, that a complete copy of the Mercury mortgage in favour of the second respondent was registered on the titles of properties at Peppermint Gove and Dalkeith, of which the first respondent was the registered owner.
6Counsel appearing for the applicant forthrightly accepted that he, and indeed his instructor within the Australian Government Solicitor, would in 2011 have been aware of the fact, but says that, in the course of preparing the matter further, and indeed at the point that instructions were being given for the preparation of the statement of claim in this matter, that fact had escaped them that is to say, the fact that there was in existence a complete copy of Mercury mortgage, registered at Landgate, of which they had known some time previously. In short, this fact had been forgotten.
7I had invited counsel for the first respondent to state whether he wished to recharacterise the explanation by counsel for the applicant, but he eschewed such a course. In those circumstances I accept, without reservation, the explanation given by counsel for the applicant.
(Page 971)

Analysis

In effect, Ms Oswal complains that Mr Burrows did not have reasonable grounds for his belief that Ms Oswal had engaged in fraud or serious misconduct.

Complaint 1) Failure to make reasonable enquiries related to paragraph 15.1.

Ms Oswal's first complaint is that Mr Burrows did not adequately verify the contents of paragraph 15.1 of the Statement of Claim and therefore did not have reasonable grounds to plead paragraph 15.1 required by r 36(5) of the Conduct Rules.
Ms Oswal states that there were two options available to Mr Burrows to verify paragraph 15.1:
a)he could have checked the Logue affidavit; or
b)he could have ordered a Landgate search of the Mortgage.
In October 2012, when he prepared the Statement of Claim in WAD 264 of 2012, Mr Burrows had no recollection of the Logue affidavit. The Logue affidavit was filed in support of an application made in March 2011. It is not surprising that Mr Burrows could not recollect it. Mr Burrows could not have relied on something he did not recollect. Therefore, he could not have checked it. There is no basis for a finding that Mr Burrows should have recalled the Logue affidavit.
Mr Burrows did not conduct a Landgate search of the Mortgage. The reason he did not do so is because he relied on Ms Oswal's affidavit which annexed a purported copy of a Landgate search of the Mortgage which was incomplete. It was prepared by Ms Oswal's solicitors, who could have undertaken a Landgate search of the Mortgage. Ms Oswal's statement that the Mortgage was incomplete was, in a sense, adverse to Ms Oswal's interests. Ms Oswal signed the Mortgage. If there was a complete mortgage, why would she say it was incomplete?
In the circumstances, it was reasonable for Mr Burrows to rely on Ms Oswal filing a complete mortgage. There was factual material already available to Mr Burrows, in Ms Oswal's affidavit, which provided a proper basis for the plea in paragraph 15.1 that the Mortgage was incomplete. This is particularly so in the context of the broader pleas in paragraphs 8 - 18.
The fact that in August 2013 counsel for the Deputy Commissioner thought it prudent to undertake a further Landgate search simply reflects the fact that a different set of eyes saw things differently.
There is no reasonable likelihood that Mr Burrows would be found guilty of unsatisfactory professional conduct by the Tribunal.

Complaint 2) Failure to make adequate enquires before referring to incomplete mortgage in ex parte application

Ms Oswal's second complaint is that Mr Burrows did not take the steps outlined above, before making paragraph 31(g) of the Submissions.
Mr Burrows did not recollect the Logue affidavit at the time. Again, he relied on Ms Oswal's affidavit.
There is no reasonable likelihood that Mr Burrows would be found guilty of unsatisfactory professional conduct by the Tribunal.

Complaint 3) Failure to refer to Logue affidavit when withdrawing allegations in paragraph 15.1

The same reasons that lead us to conclude that Mr Burrows' conduct in relation to the Statement of Claim was not unprofessional conduct apply equally to the Submissions in relation to the ex parte application of December 2012.
On 23 August 2013, counsel raised with Mr Burrows the need to do a search, which he did. When Mr Burrows became aware that there was a complete Mortgage available, he took steps to have the Statement of Claim amended. There was a factual error in paragraph 15.1 and a factual basis for the amendment; namely, that there was a complete copy of the Mortgage. The Mortgage was annexed to Mr Burrows' affidavit.
Ms Oswal alleges that Mr Burrows made a quite deliberate decision not to disclose evidence of the Logue affidavit and his knowledge of it to the court (Oswal submissions, paragraphs 36 - 38).
We disagree. There was simply no reason for Mr Burrows to refer to the Logue affidavit. There was no reason to draw the court's attention to the Logue affidavit. Nor was there any basis for Mr Burrows to have informed Ms Oswal or her solicitors of the Logue affidavit. His Honour Justice Gilmour made that point in his reasons for decision.
There is no reasonable likelihood that Mr Burrows would be found guilty of unsatisfactory professional conduct by the Tribunal.

Complaint 4) Mr Burrows' statement that he first became aware of the Logue affidavit on 16 September 2013

Mr Burrows was in error when he said during the hearing on 16 September 2013 that he recollected the Logue affidavit on that day, but it is clear, in the context of the hearing overall, that it was a mistake. Mr Burrows clearly left the Court in no doubt that it had been on an earlier date that he became aware of the complete Mortgage and the Logue affidavit.
The court was not misled in any sense. There is nothing to suggest that anything Mr Burrows did on 16 September 2013 amounted to unprofessional conduct in any sense.
There is no reasonable likelihood that Mr Burrows would be found guilty of unsatisfactory professional conduct by the Tribunal.

Conclusion

As there is no reasonable likelihood that Mr Burrows would be found guilty by the Tribunal of any of the complaints made to the Complaints Committee by Ms Oswal. Accordingly, Ms Oswal's application will be dismissed.

Order

1. The application is dismissed.

I certify that this and the preceding [73] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J C CURTHOYS, PRESIDENT