Papamihail v Legal Profession Complaints Committee
[2023] WASCA 183
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PAPAMIHAIL -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2023] WASCA 183
CORAM: BUSS P
HALL JA
MORRISON AJA
HEARD: 3 MAY 2023
DELIVERED : 15 DECEMBER 2023
FILE NO/S: CACV 73 of 2022
BETWEEN: GEORGE PAPAMIHAIL
Appellant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
LAW COMPLAINTS OFFICER
Second Respondent
STATE ADMINISTRATIVE TRIBUNAL
Third Respondent
THE ATTORNEY-GENERAL OF WESTERN AUSTRALIA
Fourth Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: ALLANSON J
File Number : CIV 1530 of 2021
Catchwords:
Legal profession - Legal practitioner - Complaint about practitioner's conduct - Whether complaint against practitioner was investigated on behalf of Legal Profession Complaints Committee by invalidly appointed investigator - Whether the Legal Profession Act 2008 (WA) permitted the Law Complaints Officer to nominate a person outside the Legal Practice Board's staff as an investigator - Whether Goldsmith v Law Complaints Officer [2021] WASC 69 was wrongly decided
Legal profession - Legal practitioner - Complaint about practitioner's conduct - Whether Legal Profession Complaints Committee denied the practitioner procedural fairness by not inviting submissions on information obtained by an investigator and the report of the investigator before referring the matter of the practitioner's conduct to State Administrative Tribunal
Legal profession - Legal practitioner - Complaint about practitioner's conduct - Whether Legal Profession Complaints Committee denied the practitioner procedural fairness, in circumstances where the Committee had options available to it which were more favourable to the practitioner than referring the matter of the practitioner's conduct to the Tribunal, by failing to give the practitioner an opportunity to make submissions as to what course the Committee should take before the Committee decided to refer the matter to the Tribunal
Legal profession - Legal practitioner - Complaint about practitioner's conduct - Where the matter of the practitioner's conduct referred to State Administrative Tribunal - The meaning of 'matter' within s 428(1) of the Legal Profession Act2008 - Whether referral invalid because the practitioner's conduct the subject of the referral was not a specific item of unsatisfactory professional conduct or professional misconduct and consequently was not sufficiently precise to constitute a 'matter', within s 428(1) of the Legal Profession Act 2008
Legal profession - Legal practitioner - Complainant about practitioner's conduct - Whether Legal Profession Complaints Committee required to give reasons for a decision under s 428(1) of the Legal Profession Act2008 to refer the matter of the practitioner's conduct to State Administrative Tribunal
Legal profession - Legal practitioner - Complaint about practitioner's conduct - Disciplinary proceedings - Whether State Administrative Tribunal's jurisdiction to hear a matter referred to it by Legal Profession Complaints Committee is enlivened if the Committee has not made a lawful determination that the Tribunal should hear the matter or the Committee has not made a lawful referral of the matter to the Tribunal
Legislation:
Legal Profession Act 2008 (WA)
State Administrative Tribunal Act 2004 (WA)
Result:
Leave to amend to raise grounds 1(a), 1(b), 1(c) and 2(b) refused
Leave to amend to raise ground 1(d) granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Dr J Lucy |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
| Third Respondent | : | No appearance |
| Fourth Respondent | : | Ms J E Shaw |
Solicitors:
| Appellant | : | DWL Legal |
| First Respondent | : | Legal Services and Complaints Committee |
| Second Respondent | : | Legal Services and Complaints Committee |
| Third Respondent | : | No appearance |
| Fourth Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
AIB Group (UK) Ltd v Martin [2002] 1 WLR 94
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Apache Northwest Pty Ltd v Agostini (No 2) [2009] WASCA 231
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450
AYHT v Medical Board of South Australia (2000) 77 SASR 148
C v The Independent Commissioner Against Corruption [2020] SASCFC 57; (2020) 136 SASR 215
Chang v Legal Profession Complaints Committee [No 2] [2020] WASCA 208; (2020) 56 WAR 263
City of Armadale v Merrick [2014] WASCA 125; (2014) 201 LGERA 221
City of Wanneroo v Tah Land Pty Ltd [2022] WASCA 53
Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Commissioner of State Revenue v Oz Minerals Ltd [2013] WASCA 239; (2013) 46 WAR 156
Cornall v AB [1995] 1 VR 372
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Council of the Law Society of New South Wales v Levitt [2018] NSWCA 247
Epic Energy (Pilbarra Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228; (2011) 43 WAR 186
Goldsmith v Law Complaints Officer [2021] WASC 69
Gourmania Holdings Pty Ltd v Schlegel [2021] WASCA 28
Hayman v Cartwright [2018] WASCA 116; (2018) 53 WAR 137
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468
Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 190
NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51
Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164
Papamihail v Legal Profession Complaints Committee [No 2] [2021] WASC 346
Papamihail v Legal Profession Complaints Committee [No 3] [2022] WASC 236
Park v Brothers [2005] HCA 73; (2005) 80 ALJR 317
Parker v Miller [1998] WASCA 124
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45
R v Mansfield [2011] WASCA 132; (2011) 251 FLR 286
R v Solicitors' Disciplinary Tribunal [1988] VR 757
Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323
Saraceni v Australian Securities and Investments Commission [2013] FCAFC 42; (2013) 211 FCR 298
Smith v New South Wales Bar Association (1992) 176 CLR 256
Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418
The State of Western Australia v Williams [2022] WASCA 105
Turner v Northern Territory of Australia [2021] NTSC 55
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598
Wingate Marketing Pty Ltd v Levi Strauss & Co (1994) 49 FCR 89
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40
JUDGMENT OF THE COURT:
The appellant is a legal practitioner in the State of Western Australia. In 2015 and 2016 he was the subject of complaints made to the Legal Profession Complaints Committee (the Committee). The Committee also notified the appellant that it was examining aspects of his professional conduct, of its own initiative.
In June 2016, the Law Complaints Officer nominated Mr Cuerden SC as an investigator under Part 15 of the Legal Profession Act 2008 (WA) (the Act). The parties proceeded on the basis that the nomination was valid until 16 March 2021, when the decision of the Supreme Court of Western Australia in Goldsmith v Law Complaints Officer[1] was handed down. That decision held that the Law Complaints Officer could only validly nominate a person as investigator if that person was a member of the Legal Practice Board's staff. Thereafter the parties treated the nomination of Mr Cuerden that way.
[1] Goldsmith v Law Complaints Officer [2021] WASC 69.
Over a period of nearly two years the appellant responded to the complaints and enquiries made by the Committee, and Mr Cuerden, by giving information by way of statements, statutory declarations and submissions, and providing documents.
In 2018 the Committee made two decisions to refer the complaints to the State Administrative Tribunal (the Tribunal) for hearing. The first was on 17 April 2018 and the second was on 21 August 2018. The proceedings in the Tribunal were commenced in 2019.
The appellant challenged each referral and the proceedings on various grounds, seeking relief by way of judicial review. The fourth respondent to this appeal, the Attorney-General, was given leave to intervene in the proceedings.
By way of interlocutory relief the appellant sought an order that the Committee file an affidavit as to the facts material to the application, or alternatively give discovery of documents. The effect of that order would have been to disclose Mr Cuerden's report. That application was dismissed by the learned primary judge on 15 October 2021. See Papamihail v Legal Profession Complaints Committee [No 2], (Papamihail No 2).[2]
[2] Papamihail v Legal Profession Complaints Committee [No 2] [2021] WASC 346.
Ultimately, on 26 July 2022 the application for judicial review was also dismissed. See Papamihail v Legal Profession Complaints Committee [No 3], (Papamahail No 3).[3]
[3] Papamihail v Legal Profession Complaints Committee [No 3] [2022] WASC 236.
The appellant now appeals against each decision.
The issues on the appeal turn on provisions of the Act. That Act was repealed on 1 July 2022 and replaced with the Legal Profession Uniform Law Application Act 2022 (WA). However, if the referred proceedings continue in the Tribunal they will fall to be determined by reference to the now repealed Act. For that reason, and for ease of reference, references to provisions of the Act use the present tense.
Grounds of appeal
The grounds of appeal in respect of the decision in Papamihail No 3 raise what are said to be jurisdictional issues relating to each of the two decisions by the Committee to refer a matter to the Tribunal:
(a)the Committee did not determine that a 'matter' should be heard by the Tribunal and or alternatively did not decide to refer a 'matter' to the Tribunal, within s 428(1) of the Act, when making each of the purported decisions, because the conduct which was the subject of the determination and which was purportedly referred was not a specific item of professional misconduct and was not sufficiently precise to constitute a 'matter';
(b)in purportedly deciding to refer a matter to the Tribunal, the Committee impermissibly had regard to the investigation, report and material obtained by Mr Cuerden in circumstances where the Committee had not lawfully nominated or appointed Mr Cuerden as an investigator;[4]
(c)the Committee misdirected itself to its statutory task or disregarded the nature or limits of its functions or powers, when purporting to decide to make a referral of a matter under s 424(l)(c) and s 428(1) of the Act, because it made the decision on the erroneous basis that an investigation had been completed, when in fact no investigation under the Act had been completed;
(d)the Committee denied the appellant procedural fairness by failing to disclose Mr Cuerden's report and to give the appellant an opportunity to respond to it, in circumstances where Mr Cuerden had not lawfully investigated the complaints about the appellant and was not a party to the proceedings; and
(e)the Committee's lawful determination that the Tribunal should hear a matter, and its lawful referral of a matter to the Tribunal was necessary for the Tribunal to hear and determine grounds 1 to 5 of the Committee's application to it and no such lawful determination or referral was ever made.
[4] This ground was only advanced in respect of the appeal against the referral decision dated 17 April 2018.
The grounds of appeal in respect of the decision in Papamihail No 2 raise the following issues:
(a)the Court erroneously found that the disclosure of the report of Mr Cuerden and, or alternatively, the other material sought, was not necessary for the fair and just determination of the issues on the judicial review application, when it was necessary to dispose fairly of (at least) the procedural fairness ground;
(b)in arriving at its decision, the Court relied upon a misconception that reasons are not required for a decision made under s 428(1) of the Act, in circumstances where the Committee has completed an investigation;
(c)the Court failed to make any finding as to whether the appellant had an arguable case in respect of the procedural fairness ground, but its reasoning indicated (wrongly) that he did not; and
(d)the Court wrongly distinguished the case of Council of the Law Society of New South Wales v Levitt,[5] which the appellant relied upon for the proposition that procedural fairness applied at the time of referral of a complaint or matter to a tribunal.
[5] Council of the Law Society of New South Wales v Levitt [2018] NSWCA 247.
Chronology
The essential chronology of events can be set out as below:
Date
Event
17 June 2015
Ms Xydas made a complaint about the appellant to the Committee;
14 September 2015
the office of the Law Complaints Officer wrote to the appellant in relation to the complaint; the letter asked whether the appellant was prepared to provide an apology and contribute to Ms Xydas' costs;
6 November 2015
the appellant wrote to the Law Complaints Officer, stating that he was prepared to provide an apology but not to contribute to Ms Xydas' costs;
18 March 2016
the Law Complaints Officer notified the appellant that Ms Xydas had changed her complaint, that it was now in different terms, and set out the terms of the amended complaint (the Complaint); the Law Complaints Officer requested the appellant to make submissions to the Committee about the Complaint and referred him to reg 50(2) and reg 50(3) of the Legal Profession Conduct Rules 2010 (WA) (the Conduct Rules);
31 May 2016
the appellant provided the Committee with preliminary submissions regarding the Complaint;
9 June 2016
the Law Complaints Officer nominated Mr Cuerden as an investigator under Part 15 of the Act;
19 July 2016
Mr Cuerden informed the appellant of his nomination as investigator under Part 15 of the Act and invited submissions from the appellant before Mr Cuerden concluded his investigation and reported to the Committee;
7 October 2016
the appellant provided Mr Cuerden with submissions regarding the Complaint through his solicitor, Mr Bayly;
11 October 2016
Mr Cuerden wrote to the appellant's solicitor, requesting further submissions and information in relation to certain matters;
17 November 2016
Mr Bayly wrote to Mr Cuerden, stating that he was attaching statutory declarations sworn by Maria-Aliki and Christina Papasavvas in relation to the Complaint on 11 November 2016 (the 2016 statutory declarations), but failed to do so;
6 December 2016
Mr Cuerden wrote to Mr Bayly inviting the appellant to provide any further information and requesting copies of the 2016 statutory declarations;
7 December 2016
Mr Bayly wrote to Mr Cuerden enclosing the 2016 statutory declarations;
8 February 2017
Mr Bayly wrote to Mr Cuerden providing him with a response in relation to various matters raised by Mr Cuerden;
in 2017, and prior to 20 October 2017
Mr Cuerden provided the Committee with his report;
20 October 2017
Mr Pope, Senior Legal Officer and Manager Investigations, wrote to Mr Bayly, advising that it was intended that Ms Xydas' complaint be referred to a meeting of the Committee in November 2017 for determination; Mr Pope also advised that the Committee was investigating certain matters concerning the appellant on its own initiative, and enclosed a summons pursuant to s 520 of the Act; the investigation of those matters on the Committee's own initiative is referred to in the appeal submissions as the First Own Motion Investigation;
10 November 2017
the appellant, through his solicitors, provided the documents the subject of the summons;
24 November 2017
the appellant, through his solicitors, provided a statement in response to the invitation in Mr Pope's letter of 20 October 2017;
22 February 2018
Mr Pope wrote to Mr Bayly enclosing a summons for the appellant to provide information verified by statutory declaration and to produce documents pertaining to the 2016 statutory declarations;
15 March 2018
Mr Bayly wrote to the Law Complaints Officer, attaching the statutory declaration made by the appellant on that date, as requested;
6 April 2018
Mr Pope wrote to Mr Bayly enclosing a summons for the appellant to provide information verified by statutory declaration in relation to the 2016 statutory declarations;
12 April 2018
Mr Bayly provided the statutory declaration requested, sworn by the appellant on that date;
17 April 2018
the Committee resolved pursuant to s 428 of the Act, that the matter of the appellant's conduct in certain respects be heard by the Tribunal and accordingly that the matter be referred to the Tribunal; this decision is referred to in the reasons below and the submissions on appeal as the First Referral Decision;
the Committee also resolved at the same time to investigate certain conduct of the appellant on its own initiative under s 421 of the Act and to invite submissions from the applicant in respect of that conduct; the investigation of those matters on the Committee's own initiative is referred to in the appeal submissions as the Second Own Motion Investigation;
20 April 2018
Mr Pope wrote to the appellant's solicitor informing him of the resolutions made by the Committee on 17 April 2018;
21 August 2018
the Committee resolved that, pursuant to s 428 of the Act, the matters of the appellant's conduct in certain respects be heard by the Tribunal and accordingly that those matters be referred to the Tribunal; this decision is referred to in the reasons below and the submissions on appeal as the Second Referral Decision;
18 September 2018
Mr Pope wrote to the appellant's solicitor, informing him of the Committee's resolution on 21 August 2018;
15 April 2019
the Committee commenced proceedings VR 52 of 2019 (disciplinary proceedings against the appellant) by filing an application in the Tribunal;
16 March 2021
a staff member of the Legal Practice Board informed the appellant's solicitor, Mr Williams, of the decision of the Supreme Court of Western Australia in Goldsmith;
23 March 2021
the Tribunal proceedings were adjourned (and have continued to be adjourned at intervals since that date);
14 June 2021
the appellant filed a judicial review application in the Supreme Court of Western Australia;
6 August 2021
the appellant swore an affidavit in support of his application for an extension of time to bring the judicial review proceedings;
13 September 2021
Allanson J made orders granting the Attorney-General leave to intervene;
14 September 2021
the first and second respondents filed a notice of their intention to abide by the court's decision or order, save as to costs;
28 September 2021
the appellant filed a chamber summons, applying for orders that the Committee file an affidavit as to facts material to the application, or alternatively giving the appellant leave to give notice to the Committee requiring it to give discovery of documents;
6 October 2021
a hearing was held of the appellant's application for leave to bring the application out of time; the court decided to defer the determination of that application to the final hearing;
15 October 2021
Allanson J published his reasons for dismissing the appellant's chamber summons;[6]
16 November 2021
a hearing of the judicial review application was held before Allanson J; the court reserved its decision;
26 July 2022
Allanson J dismissed the appellant's judicial review application and published his reasons;[7]
15 August 2022
the appellant filed an appeal notice.
[6]Papamihail No 2.
[7]Papamihail No 3.
Consideration
It is convenient to consider the grounds of appeal by topic, dealing to the extent necessary with the relevant submissions on each point as part of that consideration.
Appeal grounds l(a) and 2(a) - failure to refer a 'matter'
The essential steps in the appellant's submissions are:
(a)as the primary judge found, the word 'matter' in s 424 and s 428 of the Act refers to 'the subject matter for consideration in the Tribunal' and may also refer to the question 'whether the conduct of the practitioner referred to the Tribunal is unsatisfactory professional conduct or professional misconduct';
(b)the word 'matter' in s 428(1) of the Act requires a degree of definition or specificity greater than that recorded in the minutes of the Committee;
(c)the decision to refer a 'matter' may only be made after the Committee has first determined that the 'matter should be heard' by the Tribunal; thus the determination that a matter should be heard by the Tribunal is a jurisdictional fact upon which the power to refer depends;
(d)section 428(1) of the Act requires the Committee to consider whether the Tribunal should hear a question of whether 'particularised conduct' of the appellant constitutes professional misconduct or unsatisfactory professional conduct, as to which see Chang v Legal Profession Complaints Committee [No 2];[8]
(e)the legislature could not have intended that the matter referred could be an imprecise or vague allegation, in circumstances where a practitioner's livelihood is at stake;
(f)neither of the determinations by the Committee to refer matters to the Tribunal identifies anything the appellant was said to have done wrong, and thus neither identified precise conduct capable of constituting professional misconduct; it follows that the Committee failed to determine that a 'matter' should be heard by the Tribunal and that its power to refer a 'matter' to the Tribunal was not enlivened;
(g)the word 'matter' is used in s 428(1) to designate what may be referred to the Tribunal, and is also used to designate the subject of the Committee's determination as to what the Tribunal should hear; on its proper construction, the word 'matter' in s 428(1) of the Act incorporates the principle that the allegations against the particular practitioner must be specifically identified; see Smith v New South Wales Bar Association;[9] and R v Solicitors' Disciplinary Tribunal.[10]
(h)although the Committee was not expressly required to form the opinion that the appellant was guilty of misconduct before referring the appellant to the Tribunal, it was implicitly obliged to turn its mind to the question of whether the appellant had engaged in unsatisfactory professional conduct or professional misconduct before making a referral; and
(i)under s 421(1) the Committee was required to consider whether the appellant would be likely to be found guilty of unsatisfactory professional conduct or professional misconduct when deciding whether to initiate its own complaint, as it did in this case; further, under s 424(1), s 425 and s 426, before making a referral the Committee was obliged to consider whether the Tribunal was likely to find that the appellant was guilty of unsatisfactory professional conduct or professional misconduct.
[8] Chang v Legal Profession Complaints Committee [No 2] [2020] WASCA 208; (2020) 56 WAR 263 [372] ‑ [373].
[9] Smith v New South Wales Bar Association (1992) 176 CLR 256, 270.
[10] R v Solicitors' Disciplinary Tribunal [1988] VR 757.
For the reasons which follow we are unable to accept those submissions.
In order to properly construe s 428(1) it must be analysed within its statutory context. The High Court has repeatedly emphasised that the rules of statutory construction require primary attention to be directed to the text of the relevant provisions, having regard to them in context. See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue;[11] Project Blue Sky Inc v Australian Broadcasting Authority;[12] and Military Rehabilitation and Compensation Commission v May.[13]
[11] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47].
[12] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69].
[13] Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468.
The Committee was established by s 555(1) of the Act and has various functions, including supervising the conduct of legal practitioners: s 557(2)(a). An office of the Law Complaints Officer is established under s 572(1).
Part 13 of the Act provides for the making and handling of complaints about Australian lawyers and more generally for the discipline of lawyers. The disciplinary scheme is centred on the 'key concepts' of unsatisfactory professional conduct and professional misconduct. The word 'conduct' is defined in s 3 to mean 'conduct whether consisting of an act or omission'. The phrase 'unsatisfactory professional conduct' is defined in s 402:
unsatisfactory professional conduct includes 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.
The phrase 'professional misconduct' is relevantly defined in s 403:
professional misconduct includes -
(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.
Without limiting s 402 and s 403, s 404 of the Act provides examples of conduct that is 'capable of constituting unsatisfactory professional conduct or professional misconduct'.
Section 407(1) provides that Part 13 applies to 'conduct of an Australian legal practitioner occurring in this jurisdiction'.
The Act provides that a complaint may be made about an Australian legal practitioner's conduct, by specified persons. Thus, s 409 relevantly provides:
409. Complaints
(1)A complaint may be made under this Part about an Australian legal practitioner's conduct to which this Part applies.
(2)…
(3)A complaint that is duly made is to be dealt with in accordance with this Part.
Section 410 then governs the making of a complaint:
410. Making of complaints
(1)A complaint about an Australian legal practitioner may be made by -
(a)the Attorney General; or
(b)the Board; or
(c)the Executive Director of the Law Society in respect of matters where the making of the complaint has been authorised by a resolution of the Council of the Law Society; or
(d)any legal practitioner; or
(e)any other person who has or had a direct personal interest in the matters alleged in the complaint.
(2)A complaint may be made direct to the Complaints Committee or through the Law Complaints Officer.
(3)A complaint should normally be in writing, but the Complaints Committee or the Law Complaints Officer may formulate in writing any oral complaint received.
(4)A complaint must -
(a)identify the complainant; and
(b)if possible, identify the Australian legal practitioner about whom the complaint is made; and
(c)describe the alleged conduct the subject of the complaint.
(5)A complaint may be made -
(a)by the complainant personally; or
…
The provisions referred to above make it abundantly clear that the focus of the complaints process under Part 13 is upon 'conduct' of a practitioner. It is conduct which is defined as either unsatisfactory professional conduct or professional misconduct; complaints can only be made about a practitioner's conduct; a complaint can only (relevantly) be made by someone with an interest in 'the matters alleged in the complaint', which has to be conduct.
Significantly, the three requirements of a complaint are that it: (i) identify the complainant, (ii) identify the practitioner, and (iii) 'describe the alleged conduct' the subject of the complaint. No more precision is required of the complaint than that. However, the Committee has the power to require a complainant to give further details about the complaint: s 412.
Subject to the exceptions contained in s 413(2), the Committee is required to ensure that, as soon as practicable after a complaint is made, the practitioner about whom the complaint is made is notified of 'the nature of the complaint' and the identity of the complainant: s 413(1) and s 413(2). No more specificity is required of the notice to the practitioner. The exceptions include where the Committee is of the opinion that giving notice might prejudice the investigation or court proceedings or place the complainant or some other person at risk. In that case the notice only has to convey 'the general nature of the complaint': s 413(3)(b).
It is mandatory to inform the practitioner of their right to make submissions to the Committee, unless the Committee is dismissing the complaint: s 413(5).
The practitioner is entitled to make submissions to the Committee 'about the complaint or its subject matter or both', and the Committee is required to consider those submissions 'before deciding what action is to be taken in relation to the complaint': s 414(1) and s 414(3).
The action the Committee can take is to: (i) summarily dismiss a complaint: s 415; (ii) suggest to the parties that they enter into a process of mediation: s 417(1); (iii) refer the complaint to the Tribunal without an investigation: s 421(3)(a), s 428; or (iv) to investigate it: s 421(2). The Committee has an obligation to investigate a complaint if it does not decide to take other action: s 421(2) and s 421(3).
Section 416(4) provides for the withdrawal of a complaint:
(4)A complaint may be withdrawn even though the Complaints Committee has commenced or completed an investigation of the complaint, but cannot be withdrawn if the complaint has been referred to the State Administrative Tribunal.
There are two features to be drawn from that provision. First, once a complaint is in the hands of the Tribunal it cannot be withdrawn. That is to be contrasted with the position if the complaint is still being dealt with by the Committee, where it can be withdrawn even where the Committee has completed its investigation.
Secondly, the subsection uses the phrase 'if the complaint has been referred to the [Tribunal]'. The same wording is used in s 421(3)(a) which creates an exception to the Committee's obligation to investigate where 'a complaint … is referred to the [Tribunal]'. That wording suggests that when s 428 specifies that a 'matter' can be referred to the Tribunal, the legislature intended that the term 'matter' should be equated with 'complaint'.
Section 417, dealing with mediation, provides:
417. Mediation of complaints
(1)If the Complaints Committee considers that a complaint is capable of resolution by mediation, the Complaints Committee may suggest to the complainant and the Australian legal practitioner to whom the complaint relates that they enter into a process of mediation.
(2)Subsection (1) does not apply to a complaint if the Complaints Committee considers that the practitioner would be likely to be found guilty of professional misconduct if proceedings were instituted in the State Administrative Tribunal with respect to the complaint.
(3)This section extends to a complaint so far as it relates to some only or part only of the matters that form the subject of the complaint.
Two matters emerge from s 417. The first is that the Committee's power to suggest mediation does not arise where it considers that the practitioner would be likely to be found guilty of professional misconduct if proceedings were instituted in the Tribunal. That suggests that the Committee's review of a complaint necessarily requires it to consider that question. Secondly, s 417(3) uses the term 'matters' in the phrase 'so far as it relates to some only or part only of the matters that form the subject of the complaint'. 'Matters' is there used to refer to the subject matter of the complaint.
The Committee is empowered to investigate the conduct of a legal practitioner 'on its own initiative' if it has 'reasonable cause to suspect the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct': s 421(1).
Once the Committee commences an investigation under s 421, Part 15 of the Act (which confers coercive investigative powers on 'investigators') applies: s 422.
Section 423(1) uses the phrase 'the Complaints Committee may refer a matter', in that case to a taxing officer. The evident purpose is to further the Committee's investigation as to the costs charged by a practitioner, where the charging of those costs is at least a component of the complaint against the practitioner. That use of the phrase 'refer a matter' suggests that 'matter' is intended to denote an issue within the scope of the complaint.
The terms of s 424(1) shed some light on the question of the meaning of 'matter' in s 428:
424. 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.
In s 424(1) the phrase used is 'the matter', which equates with 'the matter' in s 428(1). What is investigated under s 421(1) is 'the conduct of an Australian legal practitioner' in respect of each complaint: s 421(1) and s 421(2). Once that investigation is complete, s 424(1) obligates the Committee to do one of three things: (i) dismiss the complaint or decide to take no further action; s 424(l)(a), s 425, s 421(1); (ii) summarily conclude the complaint procedure (for example, by way of imposing a reprimand and a fine, with the practitioner's consent): s 424(l)(b), s 426; or (iii) refer the matter to the Tribunal: s 424(l)(c), s 428.
When s 421 and s 424(1) are read together, the word 'matter' seems plainly to be equated with the subject matter of the complaint, that is to say, the conduct of the practitioner about which the complaint is made, whether that conduct is unsatisfactory professional conduct or professional misconduct, and what orders should be made as a consequence. Having investigated the conduct of a practitioner in respect of a complaint, the Committee has the option of referring 'the matter' to the Tribunal. In our view, that indicates that the legislature intended that the referral would be of the subject matter that was for consideration by the Committee, that is, whether the conduct of the practitioner the subject of a complaint is unsatisfactory professional conduct or professional misconduct and whether some form of orders should be made.
The power to dismiss a complaint under s 425 arises in this way:
425. 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.
Plainly s 425 requires the Committee to form a view as to whether the practitioner would likely be found guilty of unsatisfactory professional conduct or professional misconduct by the Tribunal. A similar view as to guilt of unsatisfactory professional conduct must be formed under s 426(1)(a)(ii).
It is in that context that one finds s 428 which provides:
Referrals to SAT
(1)If the Complaints Committee determines that a matter should be heard by the State Administrative Tribunal the Committee may refer the matter to the Tribunal.
(2)The Complaints Committee is not limited under subsection (1) by the terms of any complaint it has received or by the subject matter of any investigation it has conducted and is not required to conduct an investigation before referring a matter to the State Administrative Tribunal.
There are several features to observe about that provision.
First, a referral may only take place if the Committee 'determines' something. Therefore the Committee has to turn its mind to the thing to be determined, and make that determination.
Secondly, that thing is that something 'should be heard' by the Tribunal. On its face that means a thing that the Tribunal can hear under the Act. The jurisdiction and powers of the Tribunal are found in s 438 to s 441 of the Act. Section 438 relevantly provides:
438. Jurisdiction of SAT
(1)The State Administrative Tribunal has jurisdiction to make a finding that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct.
(2) If, after it has completed a hearing in relation to a referral under this Part in respect of an Australian legal practitioner, the State Administrative Tribunal is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may -
(a) make and transmit a report on the finding to the Supreme Court (full bench); or
(b) make any one or more of the orders specified in sections 439, 440 and 441.
The Tribunal's jurisdiction is to 'make a finding' that an Australian legal practitioner has engaged in (i) unsatisfactory professional conduct or (ii) professional misconduct. In order to make such a finding the Tribunal must conduct a hearing where the issue is whether the practitioner's conduct meets one or other definition. It is plain that such a hearing follows upon a referral from the Committee under s 428(1) because s 438(2) confers the powers on the Tribunal once it has 'completed a hearing in relation to a referral' under Part 13.
It is evident from s 442 that the legislature contemplated that a referral can 'allege' into which category the practitioner's conduct might fall. However, it is significant that the provision only contemplates that the referral might 'allege' what the category of conduct is. It does not contemplate that the Committee will have made any determination of that question, much less say so to the Tribunal.
In our view, the foregoing review of the provisions of the Act leads to the conclusion that on the proper construction of s 428(1):
(a)what is 'referred' under s 428(1) is the issue whether the alleged conduct by the practitioner comes within the Act as unsatisfactory professional conduct or professional misconduct, and whether orders should be made under any of s 438 to s 441; see Chang;[14]
(b)the Committee makes no finding on those issues before the referral;
(c)given that the Committee can refer a matter to the Tribunal without having conducted an investigation itself, there is no requirement for specificity at the stage of referral beyond the subject matter of the complaint;
(d)that no further specificity is required is evident from the legislature's balance between any prejudice to the practitioner and the public interest in pursuing complaints of deficient conduct by practitioners, in that before any referral to the Tribunal the practitioner will usually have been advised of the identity of the complainant, told the nature of the complaint, given a description of the alleged conduct, had an opportunity to make such submissions as they chose about the complaint or its subject matter (or both), and have those submissions considered by the Committee.
[14] Chang [323] (Mitchell JA).
Section 428 does not constitute the referral itself. The only operative effect is to confer on the Committee the power to refer if it determines that a matter should be heard by the Tribunal. The Act does not otherwise define how a referral is made.
The practitioner must be told of the decision to refer a matter to the Tribunal: s 432(1)(c). However, it is significant that the Committee is not required to give the practitioner a statement of reasons in relation to a decision to refer, unlike the case of a decision under s 424(1)(a)[15] or s 426[16]: s 432(2)(a).
[15] After completing an investigation, dismissal of a complaint or taking no further action.
[16] Summary conclusion of a complaint with the appellant's consent.
The Committee has the functions conferred on it by the Act: s 557(1). Part of those functions are set out in s 557(2)(b) and (c):
(2)Without limiting subsection (1), it is a function of the Complaints Committee -
….
(b)to inquire into complaints received under Part 13 Division 4 and, where the Complaints Committee so determines whether for cause or not and whether the Complaints Committee has received a complaint or not, any -
(i)conduct on the part of a legal practitioner; or
(ii)matters relating to legal practice,
for the purpose of determining whether it may constitute unsatisfactory professional conduct or professional misconduct; and
(c)if the Complaints Committee considers it appropriate to do so, to institute professional disciplinary proceedings against a legal practitioner in the State Administrative Tribunal; …
Paraphrased, the Committee's function is to inquire into complaints and conduct of a practitioner for the purpose of determining whether it may constitute unsatisfactory professional conduct or professional misconduct. Also, the Committee's function is to institute disciplinary proceedings against a practitioner in the Tribunal, 'if the [Committee] considers it appropriate to do so'.
The nature of a referral under s 428 is illuminated by the terms of s 442:
442. Alternative finding
The State Administrative Tribunal may find a person guilty of unsatisfactory professional conduct even though the referral alleged professional misconduct.
In our view, s 442 makes it plain that the 'referral' itself is the proceeding instituted in the Tribunal. Even though the Committee must consider the conduct and draw a conclusion as to whether it falls into unsatisfactory professional conduct or professional misconduct, in the case of the Committee determining to refer a matter to the Tribunal the Act casts no obligation on the Committee to make an allegation as to whether the impugned conduct is unsatisfactory professional conduct as distinct from professional misconduct or vice versa. That would only occur upon the commencement of the proceedings.
The Act therefore proceeds on the basis that the actual referral of a matter by the Committee to the Tribunal is the commencement of the disciplinary proceedings in discharge of its functions under s 557(2)(b) and (c). In that respect we respectfully agree with the learned primary judge's conclusion.[17]
[17]Papamihail No 3 [90].
That conclusion accords with the provisions of the State Administrative Tribunal Act 2004 (WA). Under that Act:
(a)an 'application' is defined as 'a referral or other means of bringing a matter before the Tribunal' and a reference to the 'making of an application to the Tribunal includes a reference to a matter being referred to ... the Tribunal': s 3(1) and s 3(4);
(b)a person bringing a matter before the Tribunal by referral has to do so in accordance with that act: s 42(1); and
(c)a proceeding before the Tribunal commences when the application is accepted by the executive officer: s 42(3).
This court reached a similar conclusion in Chang:
By s 428(1) of the LP Act, if the LPCC determines that a matter should be heard by the Tribunal, the LPCC may 'refer' the matter to the Tribunal. By s 428(2), referral under s 428(1) is not limited by the terms of any complaint that the LPCC has received or by the subject matter of any investigation it has carried out, and the LPCC is not required to conduct an investigation before 'referring' a matter to the Tribunal.
The word 'refer' is not defined. It is to be given its ordinary meaning in this context, ie, to submit for consideration and decision. The principal mechanism for referral to the Tribunal is the filing of an application to the Tribunal: s 42 of the SAT Act. An application may be amended at any time before a final decision: r 15 of the SAT Rules. (emphasis added)
In this case, the LPCC referred the matter the subject of ground 5 to the Tribunal, within the meaning of s 428 of the LP Act, when the LPCC applied (as it transpired by consent) to amend its application to include the new ground [163] ‑ [165].'
In our respectful view, the appellant's reliance upon Smith and Solicitors' Disciplinary Tribunal is misplaced.
The observation relied upon in Smith was directed to what was required of a court or tribunal which is hearing[18] disciplinary proceedings. It was not directed to what was required of a body (such as the Committee) considering whether or not to refer charges to such a tribunal. Nothing in Smith assists in determining the level of specificity of conduct required for the purposes of making, or recording, a decision to refer under the Act, or whether there was adequate specificity in the present case.
[18] The meaning of the word 'entertaining'.
Further, the decision in Solicitors' Disciplinary Tribunal is inapplicable to the present case. The learned primary judge[19] identified several reasons why that is so, conclusions with which we respectfully agree. However, there is an additional basis in our view. In Solicitors' Disciplinary Tribunal the evidence was that, when the members of the Council of the Law Institute approved the referral, they were ignorant of the substance of alleged acts of misconduct, and as well, the substance of the material which had led the secretary to form the opinion that the solicitor was guilty of misconduct. All they knew was that the conduct was 'misconduct as defined by the Common Law and [certain provisions of the Legal Profession Practice Act 1958 and the] Solicitors' (Professional Conduct and Practice) Rules'. That is wholly removed from the circumstances in the present case.
[19]Papamihail No 3 [87] ‑ [89].
The evidence before the learned primary judge established four relevant matters:
(a)the minutes for the First Referral decision and the Second Referral Decision each contained summary descriptions of the specific conduct the subject of the referral;[20]
(b)Annexure A to the application filed in the Tribunal, which commenced the proceedings and constituted the actual referral under s 428(1), contained a detailed description of the conduct the subject of the referral and to which the appellant had to respond;[21]
(c)the conduct specified in Annexure A corresponded to that summarised in the minutes; and
(d)the summaries and the detailed descriptions in Annexure A related to aspects of conduct in respect of which the appellant had been specifically responding to for some time, through his solicitors, by way of statements, affidavits and responses to more than one summons.
[20] GAB 308, 311.
[21] GAB 120 ‑ 145.
We reject the contention that the minutes are to be read in isolation. The actual referral was the application in the Tribunal, which was fully particularised. The suggestion implicit in the appellant's submissions, that he did not know the case against him with reasonable particularity, is risible.
The appellant also submitted that the Committee here did not first determine that a matter should be heard by the Tribunal before referring the matter.[22] The minutes show that to be incorrect. On 17 April 2018 the Committee resolved that '[p]ursuant to section 428 of the Legal Profession Act 2008, that the matter [identifying it] be heard by the State Administrative Tribunal and accordingly that matter be referred to the Tribunal'.[23] The resolution on 21 August 2018 was that 'pursuant to section 428 of the Legal Profession Act 2008, that the matters [identifying them] be heard by the State Administrative Tribunal and accordingly those matters be referred to the Tribunal'.[24]
[22]Appellant's written submissions [55].
[23]Papamihail No 3 [27]; GAB 308.
[24]GAB 311 ‑ 312.
These grounds fail.
Ground l(b) - irrelevant considerations
The contention here was that the learned primary judge erred in rejecting the appellant's contention that the Committee took into account extraneous or irrelevant considerations when making the First Referral Decision, being Mr Cuerden's investigation and his report.
This ground depends upon the determination of whether the nomination or appointment of Mr Cuerden was valid. The contentions advanced by the appellant assumed it was not. That view was based upon the decision of Tottle J in Goldsmith. As will become apparent, we have concluded that Goldsmith was wrongly decided, and, as a consequence, the nomination or appointment of Mr Cuerden was valid.
Nonetheless, we shall make some observations as to this ground as advanced, ie. assuming the nomination or appointment was invalid.
In essence it was submitted that although the Committee had the power to and could have referred the Complaint to the Tribunal without deciding to investigate it, having elected to investigate the Complaint, that investigation had to be lawfully undertaken, and completed, before the Complaint could be referred to the Tribunal. Receipt of Mr Cuerden's report meant that the Committee's investigation was unlawful, because Mr Cuerden was unlawfully appointed, was not empowered to conduct any investigation or to make any report or findings at all.[25]
[25]Appellant's written submissions [57] ‑ [75].
The submissions accepted that the question was, as the trial judge correctly identified,[26] whether the invalid appointment of Mr Cuerden and reliance on his investigation, was 'extraneous to any objects the legislature could have had in view'. See Water Conservation and Irrigation Commission (NSW) v Browning;[27] R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd;[28] and Parker v Miller.[29] The investigation by an unlawfully appointed investigator on which the Committee relied could not constitute a relevant consideration. The Committee's appointment of and regard to the investigation of the invalidly appointed investigator were 'extraneous to any objects the legislature could have had in view'.
[26]Papamihail No 3 [104].
[27] Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, 505.
[28] R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45, 49 (plurality).
[29] Parker v Miller [1998] WASCA 124, 45 ‑ 46 (Malcolm CJ), 70 ‑ 71 (Franklyn J), 93 (Ipp J).
It was then said that the correspondence between Mr Cuerden and the appellant and his solicitors establishes that the unlawful investigation was a factor, and an important factor, in the decision of the Committee to bring grounds 1, 2 and 3 before the Tribunal for determination. Mr Cuerden's investigation could not be characterised as so insignificant that it could not have materially affected the decision by the Committee to bring grounds 1, 2 and 3 before the Tribunal.
Consideration of this issue requires that the correct factual position concerning the first complaint against the appellant be identified. The evidence before the learned primary judge, reflected in the agreed chronology, established the following:
(a)Ms Xydas made her first complaint on 17 June 2015;[30]
[30] GAB 156 [6].
(b)the appellant was contacted by the office of the Law Complaints Officer on 14 September 2015;
(c)on 6 November 2015 the appellant wrote to the Law Complaints Officer, responding to a proposal that he provide an apology and contribute to Ms Xydas' costs;
(d)until 26 November 2015 the complaint was managed by the Committee's Rapid Resolution Team, and it was then referred to the Investigations Team to investigate;[31]
[31] GAB 156 [7] ‑ [8].
(e)on 18 March 2016, the Law Complaints Officer notified the appellant of the expanded terms of the complaint and requested that he make submissions to the Committee about the complaint;[32]
(f)on 31 May 2016, the appellant provided the Committee with preliminary submissions regarding the complaint;
(g)between late November 2015 and 9 June 2016, the Committee was assisted by the Law Complaints Officer and other staff in the investigation of the complaint; that included corresponding with the appellant and his solicitor and the receipt of documents, materials and submissions from the practitioner;[33]
(h)on 9 June 2016, the Law Complaints Officer nominated Mr Cuerden as an investigator;
(i)in 2017, prior to 20 October 2017: Mr Cuerden provided the Committee with his report;
(j)on 20 October 2017, Mr Pope, Senior Legal Officer and Manager Investigations, wrote to the appellant's solicitor, advising that it was intended that Ms Xydas' complaint be referred to a meeting of the Committee in November 2017 for determination; Mr Pope also advised that the Committee was investigating certain matters concerning the appellant on its own initiative and enclosed a summons pursuant to s 520 of the Act: see chronology [12] above, date 20 October 2017;
(k)the summons issued on 20 October 2017 pursuant to s 520 of the Act, required the appellant to produce his entire file and all documents relating to his firm acting for Ms Papasavvas and/or her children in respect of the trust dispute the subject of Ms Xydas' complaint;[34] the Law Complaints Officer and Mr Cuerden had previously requested such documents be provided on 18 March 2016 (see GAB 81, as referenced), 19 July 2016 (see GAB 88, as referenced) and 11 October 2016, but their requests had not been complied with;[35]
(l)on 10 November 2017: the appellant, through his solicitors, provided the documents the subject of the summons: see chronology [12] above, date 10 November 2017;
(m)on 24 November 2017, the appellant, through his solicitors, provided a statement in response to the invitation in Mr Pope's letter of 20 October 2017: see chronology [12] above, date 24 November 2017;
(n)the statement provided by the appellant on 24 November 2017 indicated that the appellant had, in fact, acted for Ms Papasavvas' children from a certain point in time;[36] that information was further to, but contradicted, the information that the appellant had previously provided to Mr Cuerden,[37] and was critical to the second aspect of Ms Xydas' complaint (the appellant acting for Ms Papasavvas and her children when their interests were adverse to each other or potentially in conflict) and to the first two categories of conduct investigated as part of the First Own Motion Investigation.[38]
[32] GAB 81 ‑ 83.
[33] GAB 156 [8] ‑ [9], 167, 238 ‑ 249, 81 ‑ 83.
[34] GAB 252 ‑ 253, 106.
[35]GAB 81 ‑ 83, 85 ‑ 89, 94 ‑ 97.
[36] GAB 254 ‑ 266 [46] ‑ [50].
[37] GAB 98, 103, 250 ‑ 251.
[38] GAB 81 ‑ 83, 104.
It is important to identify the scope of Mr Cuerden's involvement.
Between late November 2015 and 9 June 2016,[39] the Committee was assisted by the Law Complaints Officer and others in its conduct of its investigation into the Complaint and was provided with relevant documents, information and submissions by the appellant.[40]
[39]The date of the nomination of Mr Cuerden as an investigator.
[40] Paterson Affidavit [8] ‑ [9], Attachment CCP‑8, 306, 389 ‑ 400; Williams Affidavit, Attachment DWW‑1.
On 7 October 2016, the appellant provided Mr Cuerden with submissions regarding Ms Xydas' Complaint through his solicitor, Mr David Bayly.[41]
[41]Williams Affidavit, Attachment DWW‑4.
On a date in 2017, prior to 20 October 2017, Mr Cuerden provided the Committee with his report. There is no evidence that Mr Cuerden thereafter participated in the investigation of the complaint in any way or in the Committee's First Own Motion Investigation or Second Own Motion Investigation.
The summons issued to the appellant on 20 October 2017 pursuant to s 520 of the Act (referred to in [16] of the appellant's submissions), which was complied with on 10 November 2017, required him to produce his entire file and all documents relating to his firm acting for Ms Papasavvas and/or her children in respect of the trust dispute the subject of Ms Xydas' complaint. The Law Complaints Officer and Mr Cuerden had previously requested such documents be provided on 16 March 2016, 16 June 2016 and 11 October 2016, but their requests had not been complied with.
The statement provided to Mr Pope by the appellant (through his solicitor) on 24 November 2017 (referred to in [17] of the appellant's submissions) indicated that the appellant had, in fact, acted for Ms Papasavvas' children from a certain point in time. This information was further to, and contrary to, the information that the appellant had previously provided to Mr Cuerden and was critical to the second aspect of Ms Xydas' Complaint (the appellant acting for Ms Papasavvas and her children when their interests were adverse to each other or potentially in conflict) and to the first two categories of conduct investigated as part of the First Own Motion Investigation.
As is evident from that review of the evidence, prior to Mr Cuerden's nomination the Committee had embarked upon an investigation of the complaints, and the appellant had been responding to them. Further, the relevant disclosure of documents by the appellant was in response to a summons in the First Own Motion Investigation, and had not been provided to Mr Cuerden. That was accompanied by a statement from the appellant which was contrary to information given to Mr Cuerden in material respects.
There was no evidence to suggest that Mr Cuerden had any involvement after he gave his report, that is, on and after 20 October 2017.
In our view, the appellant's contentions should be rejected for a number of reasons.
First, the power conferred on the Committee by s 428(1) is a discretionary power conferred by statute. It is therefore to be exercised 'fairly and reasonably having regard to the subject matter, scope and purpose of the legislation'.[42]
[42] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450 [40]; Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373 [40]; Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 [24].
However, before that discretion is exercised the Act requires only that the Committee determine that the matter should be heard by the Tribunal: s 428(1). As explained above, in making that determination no finding is made by the Committee on the central issues in the complaint, namely: (i) what conduct was established by the evidence; (ii) whether that conduct was unsatisfactory professional conduct or professional misconduct; and (iii) what orders might follow.
The Committee may refer a matter to the Tribunal without any investigation having been carried out: s 428(2).
The grounds of appeal do not challenge the determination by the Committee that the matter should be heard by the Tribunal, except on the bases dealt with in grounds l(a) and 2(a). Those grounds have been rejected: see [14] to [65] above. There is, therefore, no challenge on the basis that the material in which Mr Cuerden was involved tainted the Committee's determination that the matter should be heard by the Tribunal.
Once the Committee determined that the matter should be heard by the Tribunal, it follows that the Committee had determined that the matter was not to be heard by it. In those circumstances there is no rational basis upon which to contend that the decision to refer was somehow affected by the material in which Mr Cuerden was involved.
Secondly, though the nomination of Mr Cuerden was invalid, and therefore he did not have the power to investigate the complaints or compel responses from the practitioner, there is no reason to think that any of the practitioner's responses would have been different if made in response to a validly nominated investigator.
The Act contains many provisions compelling a practitioner to respond fully and openly to an investigation of complaints as to that person's conduct. For example: s 520(5) which obliges compliance with a requirement to produce documents and written information, and to cooperate; s 521(2) which prevents a claim to privilege from incrimination; s 525(2) which obligates compliance with requests during a search; and s 531 which prevents obstruction of an investigator. The specific obligations are in s 532 which imposes an obligation to not mislead during an investigation or fail to comply with requirements.
At a time when all parties believed and operated on the basis that the nomination of Mr Cuerden was valid, and therefore his steps were valid, the appellant responded in a way which, it should be assumed, was in compliance with his obligations under the Act. There is, in our view, no basis to conclude that the invalidity of Mr Cuerden's nomination had any impact upon the appellant's position or his responses, nor the integrity of the investigation.
Thirdly, it is by no means obvious that the invalidity of Mr Cuerden's nomination, and consequent steps, has an impact upon the entirety of the matter referred for hearing by the Tribunal.
The Law Complaints Officer commenced the investigation process, and the Committee twice announced that it was investigating aspects of conduct within the complaints, on its own initiative. Disclosure of the appellant's entire file, and his response, was made in answer to steps taken by the Committee.
In the result we are far from certain that this ground would have succeeded in any event. However, given the conclusion that we have reached as to the validity of Mr Cuerden's nomination or appointment, there is no need to express a final view.
Validity of Mr Cuerden's nomination
Central to a number of grounds of appeal was the appellant's contention that the nomination of Mr Cuerden as an investigator was invalid. That followed from the decision in Goldsmith. The Attorney‑General had, prior to the hearing before this court, accepted that the nomination was invalid, in reliance upon Goldsmith.
However, this court sought submissions on the correctness of the conclusion reached in Goldsmith. As a result the Attorney‑General advanced submissions to the effect that Goldsmith was wrongly decided and a nomination of an investigator under part 15 of the Act was not confined to members of the Board's staff.
Resolution of this issue turns on the proper construction of various provisions in the Act.
Construction of the Act
Part 13 Div 6 applies to investigations into the conduct of a legal practitioner. Section 421 relevantly provides:
421. Investigations
(1)The Complaints Committee may, on its own initiative, investigate the conduct of an Australian legal practitioner if the Complaints Committee has reasonable cause to suspect the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.
(2)The Complaints Committee must investigate each complaint.
As can be seen, there are two distinct powers under s 421. The first is a discretionary power to investigate a practitioner's conduct, of the Committee's own initiative. The second is an obligation to investigate complaints. A 'complaint' is defined to mean 'a complaint under Part 13': s 3.
The term 'investigate' is not a defined term. It bears its normal meaning: to examine in order to obtain the true facts. Given the Committee is a collective body of individuals, the legislature cannot be taken to have intended that such a body would investigate. Plainly that task would have to be carried out by someone on the Committee's behalf. That is where one must turn to the provisions concerning an 'investigator'.
Section 422 then provides:
Application of Part 15
Part 15 applies to an investigation under section 421.
From that it is plain that Part 13 and Part 15 have to be read together. Counsel for the appellant accepted that to be the correct approach. And, Part 15 applies to both Committee initiated investigations under s 421(1) as well as complaint initiated investigations under s 421(2).
The Committee's procedures are the subject of s 430 and s 431, which provide:
430. Procedure
(1)The rules of procedural fairness, to the extent that they are not inconsistent with the provisions of this Act, apply in relation to the Complaints Committee's procedures under section 426.
(2) The Complaints Committee is not bound by the rules of evidence but may inform itself on any matter in any manner it sees fit.
431. Duty to deal with complaints efficiently and expeditiously
It is the duty of the Complaints Committee to deal with complaints as efficiently and expeditiously as is practicable.
The combined effect of s 430(2) and s 431 reveals an intention on the part of the legislature that the Committee have the flexibility to conduct its investigations in a way it determines best suited to the particular circumstances. That intention is also reflected in s 428(2).
That is reinforced when one has regard to s 570, by which the Committee is given wide scope to operate as it wishes:
570. Complaints Committee may determine its own procedures
Subject to this Act, the Complaints Committee may determine its own procedures and is not required to conduct any proceedings in a formal manner.
This is another sign that the legislature did not intend to constrain how the Committee conducts its business. It runs against the notion that implicitly the Act restricts who the Law Complaints Officer might use as an investigator.
In that context one can turn to the provisions of Part 15 to see what application they have and how they are to be construed.
Section 517(1) defines the term 'investigator':
investigator means ‑
(a)a Complaints Committee member; or
(b)the Law Complaints Officer or a person nominated by the Law Complaints Officer; or
(c)in relation to an ILP compliance audit ‑ the person appointed by the Board or Complaints Committee under section 118 to conduct the audit; or
(d)an investigator under Part 9 Division 3; or
(e)an external examiner under Part 9 Division 4;
Several features may be immediately noted about the definition. First, an investigator is defined as including a 'Committee member'. A Committee member cannot be the subject of a delegation under s 573 as that is confined to the Law Complaints Officer and, by way of further delegation by the Law Complaints Officer, to a staff member under s 574: s 573(4).
Section 573 provides:
573. Delegation to Law Complaints Officer
(1)The Complaints Committee may, subject to this section, delegate any power or duty of the Complaints Committee under another provision of this Act to the Law Complaints Officer.
(2) The Complaints Committee must not delegate its powers under section 426.
(3) The delegation must be in writing executed by the Complaints Committee.
(4) The delegation may expressly authorise the Law Complaints Officer to further delegate in writing the power or duty to a member of staff referred to in section 574.
(5) A person to whom a power or duty is delegated as authorised under subsection (4) cannot delegate that power or duty.
(6) A person exercising or performing a power or duty that has been delegated to the person under or as authorised under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.
(7) A person exercising or performing a power or duty that has been delegated to the person under or as authorised under this section must do so in accordance with ‑
(a)in the case of a delegation to the Law Complaints Officer ‑ any directions given to the Law Complaints Officer by the Complaints Committee; or
(b) in the case of a delegation to a member of staff ‑ any directions given to the member by the Law Complaints Officer.
(8)Nothing in this section limits the ability of the Complaints Committee to perform a function through an officer or agent.
There is no other mechanism for a Committee member to act as an investigator, unless it is the product of s 573(8).
Secondly, the term 'investigator' also includes persons who are 'appointed' under other provisions of the Act, namely under Part 9 Div 3 and s 118. In those cases the legislature used the word 'appointed' in Part 9 Div 3 and s 118 in respect of their power to act, but did not do so in s 517(1)(b). Nor was the word 'delegate', or any such derivative, used. Since the legislature was plainly aware of those forms of designation it can be assumed they meant something different when the word 'nominated' was used in s 517(1)(b).
Thirdly, there is no reason to consider that the use of the phrase 'a person nominated by the Law Complaints Officer' was intended to be confined, and particularly not confined to sub-delegations. So much is plain from the fact that the power of the Law Complaints Officer to act as an investigator does not depend on a delegation of power. The Law Complaints Officer is defined in s 517 as being an 'investigator'. There is no question of a sub-delegation. The appellant's submission was to the contrary, namely that only if the Committee had delegated the investigative functions to the Law Complaints Officer could the Law Complaints Officer exercise any of those powers in Part 15. That submission should be rejected.
A similar approach appears in s 118, which is another source of an 'investigator' under s 517. Section 118 provides:
118. Audit of incorporated legal practice
(1)The Board or the Complaints Committee may conduct an audit of ‑
(a)the compliance of an incorporated legal practice (and of its officers and employees) with the requirements of ‑
(i) this Part; or
(ii) the regulations or the legal profession rules, so far as they relate specifically to incorporated legal practices;
and
(b)the management of the provision of legal services by the incorporated legal practice (including the supervision of officers and employees providing the services).
(2)The Board or the Complaints Committee may, in writing, appoint a suitably qualified person to conduct an audit under this section.
There is no reason that the phrase 'a suitably qualified person to conduct an audit' should not be given its ordinary meaning. The task is a specialised one and it may well be that the Board's staff do not have the relevant qualifications.
The same reasoning applies to an 'investigator' appointed under Part 9 Div 3, which deals with the investigation of practitioners' trust accounts. Section 230 provides:
230. Appointment of investigators
(1) The Board, on its own initiative or at the request of the Trust, or the Complaints Committee may, in writing, appoint a suitably qualified person to investigate the affairs or specified affairs of a law practice.
The appellant's central submission was to the effect that the proper construction of the Act was that where s 517(1)(b) referred to 'a person nominated by the Law Complaints Officer', that could only be a person the subject of a delegation from the Law Complaints Officer under s 573(4). The effect of that submission was that 'a person nominated by the Law Complaints Officer' therefore had to be a staff member of the Board.
There are a number of reasons why that submission should be rejected.
First, as discussed above, the power of the Law Complaints Officer to act as an investigator does not depend on a delegation of power. The Law Complaints Officer is defined in s 517 as being an 'investigator'. There is no question of a sub-delegation.
Secondly, as discussed above, the definition of 'investigator' in s 517 includes an investigator under s 118 and Part 9 Div 3. Neither of those investigators have to be a staff member of the Board.
Thirdly, the relevant definition for present purposes is that in s 517(1)(b), 'the Law Complaints Officer or a person nominated by the Law Complaints Officer'. On its face the definition combines what might be called a definition simpliciter (Law Complaints Officer), with a provision having an operative element (a person nominated by the Law Complaints Officer).
It is not inevitable that the words in a definition section have no operative role. Where the provision contains a definition as well as a substantive provision, the substantive provision is given its full operation regardless of the fact that it appears in a definition.[43] That form has been labelled a 'stuffed definition'. That is the case here, where s 517(1)(b) gives power to the Law Complaints Officer to nominate a person to be an investigator.
[43] Butt PJ, Modern Legal Drafting (3rd ed, 2013) 6.79 ‑ 6.80, referring to AIB Group (UK) Ltd v Martin [2002] 1 WLR 94.
Fourthly, even if that conclusion be wrong, the proper construction of the operative provisions in Part 15, which are applicable to investigations under Part 13, compel the conclusion that the legislature intended the Law Complaints Officer to have the power to nominate a person without having to undertake a sub-delegation or other formal appointment such as appears in Part 9 Div 3.
There is longstanding authority that when construing a statute, definitions must be read into the substantive provision first, before it can be properly construed.
In Red Hill Iron Ltd v API Management Pty Ltd[44] Beech J referred to the proposition that definition clauses do not have operative effect [127]:
As mentioned earlier in section 2, both the Farm‑in Agreement and Joint Venture Agreement make extensive use of defined terms. Definitions do not have substantive effect. They are not to be construed in isolation from the operative provision(s) in which a defined term is used. Rather, the operative provision is to be read by inserting the definition into the provision: Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [84], [103]; Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228 [62], [150], [218]. Those cases dealt with statutory interpretation; the same principle applies in interpreting contracts: Vincent Nominees Pty Ltd v Western Australian Planning Commission [[2012] WASC 28] [25].
[44] Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323.
The important part of that passage is the rule of construction that 'the operative provision is to be read by inserting the definition into the provision'. That was referred to by McHugh J in Kelly v The Queen:[45]
However, a legislative definition is not or, at all events, should not be framed as a substantive enactment. In Gibb v Federal Commissioner of Taxation, Barwick CJ, McTiernan and Taylor JJ stated:
The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense – or are to be taken to include certain things which, but for the definition, they would not include. ... [Definition] clauses are ... no more than an aid to the construction of the statute and do not operate in any other way. (original emphasis)
...
As I earlier pointed out, the function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better – I think the only proper – course is to read the words of the definition into the substantive enactment and then construe the substantive enactment – in its extended or confined sense – in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment. (emphasis added)
[45]Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [84], [103].
The approach set by McHugh J in Kelly at [103] has been long adopted by this court,[46] and by the Courts of Appeal in Queensland, New South Wales and Victoria.
[46] For example: Hayman v Cartwright [2018] WASCA 116; (2018) 53 WAR 137; Gourmania Holdings Pty Ltd v Schlegel [2021] WASCA 28; City of Armadale v Merrick [2014] WASCA 125; (2014) 201 LGERA 221; Commissioner of State Revenue v Oz Minerals Ltd [2013] WASCA 239; (2013) 46 WAR 156; Epic Energy (Pilbarra Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228; (2011) 43 WAR 186; R v Mansfield [2011] WASCA 132; (2011) 251 FLR 286; City of Wanneroo v Tah Land Pty Ltd [2022] WASCA 53; The State of Western Australia v Williams [2022] WASCA 105.
We pause to note that the approach mandated by Kelly was not carried out in Goldsmith at any point of the analysis.
The relevant definition here is: 'the Law Complaints Officer or a person nominated by the Law Complaints Officer'. That definition must be inserted into the relevant provisions before they are construed.
Section 520(1) would read:
(1)For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, the Law Complaints Officer or a person nominated by the Law Complaints Officer may, by notice or summons served on the lawyer, require the lawyer to do any one or more of the following … [produce documents, written information or assist and cooperate]
Section 520(2) would read:
(2) For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, the Law Complaints Officer or a person nominated by the Law Complaints Officer may, by notice or summons served on the person, require an associate or former associate of a law practice of which the lawyer is or was an associate or any other person … to give the investigator either or both of the following… [access to documents or information]
A similar result follows with other substantive provisions such as s 520(3) ‑ (4), s 521(3) ‑ (4), s 523(1) ‑ (4), s 531, s 532 and s 533.
Once that is done it becomes obvious, in our respectful view, that the Law Complaints Officer has been given power to nominate a person to be an investigator.
Further, s 523(5) obliges an investigator who enters premises to provide evidence of their appointment:
(5)The investigator must, at the reasonable request of a person apparently in charge of the premises or any other person on the premises, produce evidence of his or her appointment.
When the definition in s 517 is read in, it provides:
(5)The Law Complaints Officer or a person nominated by the Law Complaints Officer must, at the reasonable request of a person apparently in charge of the premises or any other person on the premises, produce evidence of his or her appointment.
Therefore, s 523(5) contemplates that at least for those purposes an 'appointment' is to be equated with a 'nomination'. However, since appointments do not involve delegation of powers under s 573, there is no reason to conclude that a nomination does.
Thus, properly construed, the Act does not provide that the Law Complaints Officer cannot nominate a person outside the Board staff as an investigator. Goldsmith was, in our respectful view, wrongly decided.
It follows that Mr Cuerden's appointment was valid.
Consideration
We will deal first with the contention that the Committee had to give the appellant an opportunity to respond once it had decided to refer the matter to the Tribunal but before it actually did so.
Section 428 provides that a matter can be referred to the Tribunal:
Referrals to SAT
(1) If the Complaints Committee determines that a matter should be heard by the State Administrative Tribunal the Committee may refer the matter to the Tribunal.
(2) The Complaints Committee is not limited under subsection (1) by the terms of any complaint it has received or by the subject matter of any investigation it has conducted and is not required to conduct an investigation before referring a matter to the State Administrative Tribunal.
An examination of the proper construction of s 428 appears in paragraphs [16] to [63] above. To that may be added the following observations which are pertinent to the present issue.
First, the determination by the Committee is simply that the matter should be heard by the Tribunal, rather than being dealt with by the Committee. It follows that when that determination is made, the Committee has not made any adverse finding about the practitioner's conduct. That is so because the Committee could only make such a finding about the conduct if it was to deal with the matter itself. It will be recalled that s 424 provides:
424. 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.
To dismiss the complaint under s 425(a) the Committee has to have reached a state of satisfaction that there is no reasonable likelihood that the practitioner would be found guilty by the Tribunal.
To take no further action, under s 425(a), in an investigation on the Committee's own initiative the Committee must necessarily have come to the view that the conduct does not warrant further investigation.
To take action under s 426 the Committee has to reach a state of satisfaction that the practitioner would be found guilty in the Tribunal, but that the taking of action under this section is justified, and then act with the practitioner's consent.
None of those apply to the Committee when making a determination under s 428. When determining that the Tribunal should hear the matter, the Committee is not required to find any facts, or form an opinion, or reach a state of belief or particular state of mind in relation to any particular matter.[68] Most importantly, it is not required to be satisfied that there is a likelihood that the practitioner would be found guilty by the Tribunal.
[68] See Cornall v AB [1995] 1 VR 372, 389 ‑ 392; AYHT v Medical Board of South Australia (2000) 77 SASR 148, 152.
Secondly, a determination to refer can be made without any investigation at all: s 428(2).
Thirdly, the determination is simply that the matter be heard by the Tribunal. Any adverse finding therefore is the province of another body, not the Committee.
Fourthly, nothing in s 424 requires the Committee to consider each option before it decides which course to follow, including making a determination to refer under s 428. In other words, s 424 does not impose an obligation on the Committee to rule out alternative ways of dealing with a complaint before deciding to refer a matter to the Tribunal.
Therefore, a decision to refer under s 428 is merely a decision to prosecute an allegation about a practitioner's conduct in the Tribunal. It is no more than a step in an administrative process that may lead to the Tribunal (or ultimately the Supreme Court) making a decision affecting the practitioner's rights and obligations. Such a decision would necessarily follow the Tribunal having afforded the practitioner an opportunity to be heard.[69]
[69] Chang [164], [323]; Cornall 394 ‑ 400, 403; AYHT 152.
Of course, the hearing by the Tribunal could result in a decision favourable to the practitioner, with the Tribunal dismissing the application.
What follows, in our view, is the conclusion that a referral decision does not have a sufficiently material effect on a practitioner's rights, obligations or interests, including on the practitioner's reputation, such as to call for the necessity to seek a response before determining to refer.[70]
[70] Cornall 394 ‑ 403; AYHT 152.
In our view, support for that conclusion comes from the structure of s 424 itself. There is no requirement to seek the practitioner's response before dealing with the matter under s 424(1)(a). A response is required under s 424(1)(b) and s 426, but that is because s 426 expressly requires that action be with the practitioner's consent. There is no requirement to seek the practitioner's response before dealing with the matter under s 424(1)(c).
Further, the Act does contain provisions concerning when a practitioner must be told things or given the chance to make submissions, or consent to action: s 413, s 414 and s 426. More significantly, s 430(1) provides:
430. Procedure
(1)The rules of procedural fairness, to the extent that they are not inconsistent with the provisions of this Act, apply in relation to the Complaints Committee's procedures under section 426.
No similar provision applies to the Committee determining to refer under s 428.
Procedural fairness does not require disclosure of every document that a decision‑maker has received. Nor does it normally require a decision‑maker to disclose their thinking process, or proposed conclusions, or invite a response to them before making a decision. It generally requires a decision-maker to disclose:[71]
(a)the substance of any adverse information or evidence which is credible, relevant and significant to the decision to be made that it has received from other sources (ie sources other than the affected party); and
(b)any proposed adverse conclusions or recommendations which would not obviously be open on the known materials.
[71] See Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591 ‑ 592; Apache Northwest Pty Ltd v Agostini (No 2) [2009] WASCA 231 [215] ‑ [218].
In Minister for Immigration and Border Protection v SZSSJ[72] the High Court said:
Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.
[72] Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 [83].
At the point of the Committee determining to refer a matter to the Tribunal, there is, in our view, no interest of the practitioner apt to be adversely affected by that step, in the sense used in SZSSJ.
Further, in Saraceni v Australian Securities and Investments Commission,[73] the court, having reviewed authority, said:
Three propositions may be drawn from a review of these authorities. First, not every power of investigation attracts a duty of procedural fairness. Second, whilst it may be true that no bright lines can be drawn, a statutory power that is purely investigative, such as the power of the Commissioner of Taxation to require production of documents or to attend to give evidence about the person's income, are less likely to be attended by an obligation to accord procedural fairness. This is particularly so where the investigative function does not include a power to make findings or recommendations.
The third, and most fundamental proposition, is that the overriding question will always be whether the exercise of the investigative power carries with it the capacity to destroy or prejudice the rights or interests of the person affected by the exercise of the power. That was why the exercise of the power by the Commission in Ainsworth [(1992) 175 CLR 564] and by the delegate in Johns [(1993) 178 CLR 408] were each attended by an obligation of procedural fairness. In those cases there was inevitable public attention drawn to matters that were otherwise protected by statutory obligations of confidence [101] ‑ [102].
[73] Saraceni v Australian Securities and Investments Commission [2013] FCAFC 42; (2013) 211 FCR 298.
Those statements are applicable here. At the point of the Committee determining that a matter should be heard by the Tribunal and therefore referred, the Committee's powers does not include a power to make findings or recommendations and there is no prejudice to the rights or interests of the practitioner, who will have an opportunity to be heard in the Tribunal.
The appellant submits that the Committee was required to give the appellant an opportunity to make submissions in support of a more favourable option to him before it decided to make a referral (dismissal of the complaint, decision to take no further action or summary resolution).[74] That submission cannot be accepted. At that point the Committee had determined that the matter should be heard by the Tribunal, not the Committee. It had come to the view, without making any findings against the appellant, that the Committee should not deal with the matter. It is a romancing rather than realistic view of the state of affairs to suggest that there was any more favourable option available.
[74] Appellant's supplementary submissions [54].
For the same reasons there was, in our view, no obligation to provide a copy of the report by Mr Cuerden or seek a response in respect of it. There is no basis to infer that the report contained anything that had not been raised with the appellant, and in respect of which he had ample opportunity to respond via his solicitors.
The non-notified matters
We turn now to the contention that the application filed in the Tribunal contained matters not raised with the appellant (the Non‑Notified Matters).
The central contention for the appellant is as follows:[75]
The appellant was denied procedural fairness by the Committee for a separate reason, being that it purported to refer matters to the Tribunal which were not the subject of a complaint, and to which it had not given him an adequate opportunity to respond. These matters formed a significant part of Grounds 1 to 3 of Annexure A to the Committee's application to the Tribunal (Disciplinary Grounds 1-3) (see Green Appeal Book 120).
[75] Appellant's supplementary submissions [41].
It can be seen that the appellant categorises the Non‑Notified Matters as being those: (i) which were not the subject of a complaint, and (ii) to which he had not been given an adequate opportunity to respond.
Before turning to the specific aspects of grounds 1 ‑ 3, two general observations may be made as to these contentions.
First, the contentions concern what appears in the attachments to the application eventually filed in the Tribunal. It is, in our view, an impermissibly narrow view of affairs to suggest that just because an allegation appears in the application as filed, that notice had to be given of those precise details earlier. It is enough, in our view, that the nature of the allegation is notified so that a response can be made, even though the particulars may be supplemented once the matter is filed in the Tribunal. Experience tells that every fresh set of eyes may detect details that illuminate but do not change the nature of the allegation. No doubt once the matter gets to the stage of being filed, attention will have been paid to the precise wording. As long as the nature of the complaint does not alter, it is a counsel of perfection rather than reality to suggest that everything needs to stop so a fine particular can be notified. The process requires fairness, not attention to every microscopic detail of every point that makes up the complaint. The whole process would be frustrated by such a pedantic approach.
Secondly, the material available to the Committee included the appellant's entire files and all documents in his possession relating to his firm acting for Ms Papasavvas and her children.[76] It also establishes that the appellant reviewed these documents[77] when they were provided to the Committee.[78] The level of particularity in the pleaded grounds of the application no doubt came from a finer analysis of that material. It was material of which the appellant was aware and which he had taken into account in responding to the Complaint.
Non-notified matters - ground 1
[76] GAB 106, 252 ‑ 253.
[77] Described as 'the file in its entirety (including all electronic records)': GAB 254.
[78] GAB 254.
As to ground 1, the subject matter is the appellant's conduct arising out of two letters, the first to Ms Xydas on 15 December 2014 and the second to her solicitors on 22 December 2014. The allegation in ground 1 is of professional misconduct by attempting to further his client's matter by unfair/dishonest means.
The revised complaint letter[79] referred to a complaint of 'unsatisfactory professional conduct or professional misconduct' by:
(a)attempting to further the appellant's client's matter by 'unfair means';
(b)sending a letter which misrepresented the known situation;
(c)failing to reveal matters relevant to Ms Xydas' known fiduciary obligations;
(d)acting in an intimidating manner by applying unreasonable pressure;
(e)refusing reasonable requests for information; and
(f)acting in a position of conflict.
[79] GAB 81 ‑ 83.
Whilst the exchange of letters between the investigator and the appellant dealt with using unfair means, that changed on 20 October 2017, when a letter was sent from the Committee.[80] That referred to the investigation the Committee was conducting under its own initiative, and identified conduct as dishonest, including:
(a)making false or misleading statements to Ms Xydas' solicitors by stating facts which he knew to be untrue, namely that he acted for certain persons and held instructions to seek relief in respect of the same transaction the subject of the complaint letter referred to above; and
(b)commencing such proceedings in the name of a person for whom he knew he held no instructions.
[80] GAB 104 ‑ 105.
As is plain the allegations by then included dishonesty in respect of the same subject matter where the conduct had previously been said to be using unfair means.
The consequence is that the particulars in ground 1[81] were matters notified, and about which the appellant had an opportunity to respond.
[81] Appellant's supplementary submissions [46] highlighted in yellow.
The inclusion of a reference to rule 16(1) of the Conduct Rules does not take the appellant's case further. It provides:
16. Maintaining professional integrity
(1)A practitioner must not attempt to further a client's matter by unfair or dishonest means.
The substance of what had been notified is precisely that.
Non-notified matters - ground 2
As to ground 2, the subject matter is the same transaction concerning Ms Xydas and her solicitors.
The contention is that:[82]
The Committee failed to notify him of the allegations that:
a.he had contravened rule 37(1) of the Conduct Rules;
b.he had made the statement that he acted for the client's children when he knew he did not, intentionally to mislead Ms Xydas and/or her solicitors, in circumstances where Ms Xydas had to protect the children's interests as trustee;
c.he was in fact procuring the transfer for Ms Papasavvas's sole benefit in becoming the sole registered proprietor of the Property.
[82] Appellant's supplementary submissions [48].
Rule 37(1) of the Conduct Rules provides:
37. Communication with opponents
(1)A practitioner must not knowingly make a false or misleading statement to an opponent in relation to a matter (including its compromise).
What has been said above in respect of ground 1, in particular paragraph 216, answers this contention. The appellant was given notice that his statements to Ms Xydas' solicitor were said to be false or misleading.
Non-notified matters - ground 3
This ground still relates to the same transaction involving Ms Xydas and her solicitors. However, this ground focussed on the fact that the appellant acted for both Ms Papasavvas and each of her children, when Ms Papasavvas was a trustee of the relevant trust and the children were beneficiaries.
The contention is that:[83]
As for Ground 3, the Committee failed to put to the appellant the allegations that he had engaged in professional misconduct by acting for Ms Papasavvas and her children from 29 December 2014 in the following circumstances:
(a)the Children had not obtained independent legal advice concerning their rights as beneficiaries under the Trust Deed, such that they were unable to give, and the practitioner did not obtain, informed consent from each of the Children, nor from Ms Papasavvas (Ground 3(a));
(b) this was contrary to rule 14 of the Conduct Rules (Ground 3(a));
(c) the appellant knew of the conflict or potential for conflict between the interests of Ms Papasavvas and the children, or was recklessly indifferent or grossly careless, as to whether there was a conflict or potential for conflict, between their interests (Ground 3(b));
(d) the practitioner failed to protect and preserve the interests of the Children unaffected by the interests of Ms Papasavvas (Ground 3(c));
(e) this was contrary to rule 12 of the Conduct Rules (Ground 3(c)).
[83] Appellant's supplementary submissions [50].
Rule 12 of the Conduct Rules relevantly provides:
12. Conflict of interest generally
A practitioner must protect and preserve the interests of a client unaffected by the interest of ‑
(a)the practitioner; or
(b) the practitioner's law practice; or
(c) another client of the practitioner; or
(d) an affiliate of the practitioner; or
(e) any other person.
Rule 14 relevantly provides:
14. Conflict of interest concerning current clients
(1)A practitioner and the practitioner's law practice must avoid conflicts between the duties owed to 2 or more clients of the practitioner or the law practice.
(2) A practitioner must not provide, or agree to provide, legal services for a client if ‑
(a)the practitioner or the practitioner's law practice is engaged by another client in the same or a related matter; and
(b) the interests of the client and the other client are adverse; and
(c)there is a conflict or potential conflict of the duties to act in the best interests of each client.
The Committee's letter dated 20 October 2017 alleged that part of the conduct was:[84]
commencing and maintaining Supreme Court proceedings CIV l186 of 2015 in the names of Ms Papasavvas and each of the Children as Plaintiffs, in circumstances in which:
(i)[the appellant] knew he had no instructions or authority to commence or maintain those proceedings on behalf of the Children; and
(ii)the interests of Ms Papasavvas and the Children were adverse and there was a conflict or potential conflict of [the appellant's] duties to act in the best interests of each of MsPapasavvas and the Children.
[84] GAB 104 ‑ 105.
Part of the material sent to the appellant in outlining and progressing the investigation into the complaints, and in response to the Committee's investigation, included:
(a)a letter from Ms Xydas' solicitors dated 30 December 2014, which was attached to Ms Xydas' Complaint; it expressed Ms Xydas' concern about the content and quality of the independent legal advice provided to the Papasavvas children; the word legal advice was referred to as 'advice', in quotation marks, thus signifying that it was purportedly independent or purportedly legal, or purported advice, or all three; it sought copies of the actual advice given, and the instructions for it;[85]
(b)a letter from Ms Xydas' solicitors dated 5 January 2015,[86] which was attached to Ms Xydas' complaint; it noted that the legal advice provided to Ms Xydas about the proposed transfer of the property to Ms Papasavvas was that it posed risks to the Papasavvas children, namely the risk of the complete loss of their interest in the trust; it also reiterated concerns about the content and quality of the advice given to the children, which was said to be 'superficial'; once again the reference was to 'legal advice', in quotation marks, carrying the implications mentioned above; further, the quality, or lack thereof, of the advice was highlighted by the sentence: 'The entire process appears to have been orchestrated to benefit a trustee without considering appropriate alternatives and this causes our client grave concerns';[87]
(c)a letter from Ms Xydas' solicitors dated 9 January 2015, which was attached to Ms Xydas' Complaint; it expressed her concern about the quality and content of the advice given to the Papasavvas children, that they had not given fully informed consent and were unable to do so, the risks posed by the proposed arrangements between themselves and Ms Papasavvas, and that the children had not been advised of the risks;[88] and
(d)a letter from Ms Xydas' solicitors dated 28 January 2015, which was attached to Ms Xydas' complaint; it challenged the appellant's ability to represent the Papasavvas children and Ms Papasavvas at the same time.[89]
[85] GAB 205 ‑ 207.
[86] It bears the date 5 January 2014, but that is an obvious typographical error.
[87] GAB 214 ‑ 215.
[88] GAB 232.
[89] GAB 234.
Further, the appellant's submissions (provided via his solicitors) dated 7 October 2016 and his formal statement dated 24 November 2017 provided to the Committee, are material to this point. The submissions acknowledged that part of the complaint was that the appellant acted for Ms Papasavvas and the children as well when there was a conflict of interest (or potential for a conflict). The submissions:[90]
(a)stated that the Papasavvas children only obtained independent legal advice in relation to their entry into a Deed of Family Arrangement and related contract on 26 November 2014 (and not in relation to the conflict or potential conflict between their rights and interests as beneficiaries of the trust under the trust deed and the interests of Ms Papasavvas in her personal capacity);[91] and
(b)outlined the circumstances in which the appellant acted for both Ms Papasavvas and her children, including in relation to Supreme Court proceedings against Ms Xydas, from about 29 December 2014; and the circumstances in which he ceased to act for either Ms Papasavvas or her children.[92]
[90] GAB 90 ‑ 93, 254 ‑ 266.
[91] GAB 90 ‑ 91, 258 ‑ 260.
[92] Statement dated 24 November 2017, GAB 257 ‑ 263.
Finally, more than once the appellant was invited by Mr Cuerden to make submissions about: (i) why, if he did act for Ms Papasavvas and her children at the same time, he was not in a position of conflict; (ii) why he had given conflicting answers on the question of acting for the children; (iii) whether he contended that the requirements of rule 14(3) of the Conduct Rules were met, including the existence of informed consent and the establishment of an effective information barrier; and (iv) any matters upon which he relied to establish that the requirements of rule 14(3) were met.[93]
[93] GAB 88, 95.
In the face of that material the contentions as to ground 3 containing the Non-Notified Matters are not maintainable.
Conclusion - grounds 1(d) and 2(c)
For the reasons above grounds 1(d) and 2(c) fail.
Appeal ground 3 ‑ error in failing to order disclosure of the report
Leave was sought (if necessary) to appeal against Papamihail No 2.
The submission here was that the learned primary judge erred in rejecting the appellant's application for disclosure of the report, either by way of the Committee providing an affidavit as to relevant facts, or by discovery. Such an order was said to be reasonably necessary to fairly dispose of the procedural fairness and irrelevant considerations grounds. It was submitted that his Honour relied upon the erroneous position that the Committee is not required to give reasons for a decision to refer a matter to the Tribunal under s 428. By s 427 of the Act, the Committee is to cause a record of each decision under s 424, together with reasons for the decision, to be kept in respect of each investigation under s 421. That applies to the reasons for a decision under s 424(1)(c) to refer the matter to the Tribunal under s 428. That is so even though the Committee does not have to provide those reasons to the appellant (s 432).
One of the appellant's contentions was that the minutes were intended to express the Committee's reasons for referral. As noted above, the Committee was not obliged to give the appellant any reasons for the decision to refer a matter to the Tribunal: see paragraph 51.
As will be apparent from the reasons already given in respect of grounds 1(d) and 2(c), as to which see paragraphs 175 to 207 above, we do not consider that the Committee was obliged by the rules of procedural fairness to provide a copy of Mr Cuerden's report to the appellant.
That being so, the contention that the primary judge should have ordered its disclosure on the same basis is not, in our respectful view, maintainable.
The primary judge determined the appellant's challenge to the Committee's non-disclosure on the basis that, having complied with its procedural obligations under s 413 and s 414 of the Act, the Committee's power to refer the appellant's conduct under s 428 was not separately conditioned by a duty to afford him a right to be heard before that power was exercised. His Honour said in Papamihail No 3:
It is not in dispute in this case that the practitioner was provided with the complaint of Ms X, was given the opportunity to make submissions on it and took that opportunity. The practitioner does not contend that there was any failure to consider the submissions he made.
From 20 October 2017, the practitioner was on notice that the Complaints Committee was investigating his conduct on its own initiative. In its letter of 20 October 2017, the Complaints Committee referred to submissions already made by the practitioner, but invited any further or specific submissions with regard to the matters it was investigating on its own motion.
On 22 February 2018, the Complaints Committee sent a summons to the practitioner to provide written information, verified by statutory declaration, and to produce documents.
I am satisfied that the practitioner knew the allegations against him, although I accept he would not have known the content of Mr Cuerden's report, and that he had the opportunity to respond to those allegations [97] ‑ [100]. (footnotes omitted)
Then, his Honour adopted a passage from AYHT:[94]
Although s 54 imposes on the Board a statutory duty to inquire into complaints, the Board is not required to do so when it considers a complaint to be frivolous or vexatious or when it decides itself to lay a complaint. When deciding to lay a complaint under s 54(2), the Board is not required to hear the medical practitioner. There are two reasons for that conclusion. First, the Board is doing no more than deciding to prosecute. As the judge noted, the Board is not determining any question which affects the rights or interests of the practitioner and its decision to lay a complaint does not affect the practitioner's rights or interests. The Board's only duty is to form an opinion whether a complaint should be laid before the Tribunal. In discharging that task, the Board is not undertaking a process that attracts the duty to accord procedural fairness:Medical Board of Queensland v Byrne (1958) 100 CLR 582 per Fullagar and Taylor JJ at 594. The decision of the Board, if adverse to the medical practitioner, does not bind the Tribunal. It is no more than a decision that the practitioner must be tried by the Tribunal. It is the Tribunal's decision, not the Board's decision, which affects the rights of the practitioner. (emphasis added)
[94] AHYT [15]. His Honour also referred to C v The Independent Commissioner Against Corruption [2020] SASCFC 57; (2020) 136 SASR 215 and Turner v Northern Territory of Australia [2021] NTSC 55 [47] ‑ [49].
The primary judge then expressed his conclusion thus:
Within the scheme of the Legal Profession Act, a referral under s 428 does not make or proceed upon any adverse findings regarding the practitioner, and does not itself prejudice the practitioner's rights or interests. The Complaints Committee complied with its obligations during the investigation process. The exercise of the power to refer is not separately conditioned by a duty to give the practitioner a right to be heard before that power could be exercised [102].
In our respectful view, his Honour's conclusion cannot be shown to have been affected by error. As we have attempted to explain earlier, procedural fairness considerations did not require disclosure of the report by the Committee. Disclosure was not required under the application made to the primary judge.
This ground fails.
Conclusion
For the reasons expressed above the appeal must be dismissed.
We make the following orders:
1.Leave to amend to raise grounds 1(a), 1(b), 1(c) and 2(b) refused.
2.Leave to amend to raise ground 1(d) granted.
3.The appeal is dismissed.
The parties should be heard in relation to the costs of the appeal and the application to amend.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SG
Research Associate to the Honourable President Buss
15 DECEMBER 2023
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