Papamihail v Legal Profession Complaints Committee - [2021] WASC 337

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PAPAMIHAIL -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2021] WASC 337
CORAM:   ALLANSON J
HEARD:   ON THE PAPERS
DELIVERED          :   1 OCTOBER 2021
FILE NO/S:   CIV 1530 of 2021
BETWEEN:   GEORGE PAPAMIHAIL
Applicant

AND

LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent

LAW COMPLAINTS OFFICER
Second Respondent

STATE ADMINISTRATIVE TRIBUNAL
Third Respondent

THE ATTORNEY-GENERAL OF WESTERN AUSTRALIA
Intervenor

Catchwords:

Practice and procedure – Judicial review – Leave to intervene – Where respondents filed notice to abide – Turns on facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Leave to intervene granted

Category: B

Representation:

Counsel:

Applicant	:	No appearance
First Respondent	:	No appearance
Second Respondent	:	No appearance
Third Respondent	:	No appearance
Intervenor	:	No appearance

Solicitors:

Applicant	:	DWL Legal
First Respondent	:	Legal Profession Complaints Committee
Second Respondent	:	Legal Profession Complaints Committee
Third Respondent	:	In Person
Intervenor	:	State Solicitor's Office

Cases referred to in decision:

Commonwealth Bank of Australia v The Law Debenture Trust Corporation PLC [No 4] [2018] WASC 165
G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503
Goldsmith v Law Complaints Officer [2021] WASC 69
Levy v The State of Victoria [1997] HCA 31; (1997) 189 CLR 579
R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 117
R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
Roadshow Films Pty Ltd v iiNet Ltd [2011] HCA 54; (2011) 248 CLR 37
Smith v Commissioners of the Rural and Industries Bank of Western Australia [2009] WASC 100

ALLANSON J:

The applicant is a legal practitioner. He has brought an application for judicial review against two respondents: the Legal Profession Complaints Committee and the Law Complaints Officer. Each of the Complaints Committee and the Law Complaints Officer is a regulatory authority established under pt 16 of the Legal Profession Act 2008 (WA).
The Attorney General applied for leave to intervene to act as the contradictor in the application. Because it was necessary to give a decision quickly, I advised the parties that I would grant leave, with reasons to be published.

Background

Complaints about the conduct of a legal practitioner may be made directly to the Complaints Committee or through the Law Complaints Officer. The Complaints Committee has power to investigate the conduct of an Australian legal practitioner, pursuant to div 6 of pt 13 of the Legal Profession Act. The Complaints Committee may, subject to the Act, delegate any of its powers or duties to the Law Complaints Officer.[1]
[1] Legal Profession Act 2008 (WA), s 573.
The powers of the Complaints Committee, following investigation of a complaint against a legal practitioner, include the power to refer a matter to be heard by the State Administrative Tribunal.[2]
[2] Legal Profession Act, s 428.
The applicant's contention, in general terms, is that the Law Complaints Officer nominated an investigator, a senior counsel at the independent bar, to investigate a complaint made against him. The appointment of the independent investigator was on 9 June 2016. Following investigation, on or about 17 April 2018, the Complaints Committee referred the matter of whether the applicant had engaged in unsatisfactory professional conduct or professional misconduct in relation to that complaint to the State Administrative Tribunal. On or about 21 August 2018, the Complaints Committee referred another matter to the Tribunal – whether the applicant had engaged in unsatisfactory professional conduct or professional misconduct in relation to the conduct of the investigation.
The applicant contends that the appointment of the investigator was invalid, and the investigation was unlawful. The applicant also contends that the decisions to refer the applicant to the Tribunal were invalid because the Tribunal impermissibly had regard to the report of the investigator, and denied him procedural fairness by failing to disclose, and invite submissions about, the report and other material obtained by the investigator.
The applicant seeks relief by a writ of certiorari, a declaration and an injunction in relation to the conduct of the Complaints Committee and the Law Complaints Officer in appointing the investigator and deciding to refer the matters to the Tribunal.
The applicant also seeks prohibition, alternatively an injunction, to prevent the Tribunal from hearing and determining proceedings in the Tribunal on those referrals.
The Tribunal was only served with the applications on 2 September 2021.[3] It has not entered an appearance.
[3] Affidavit of Erin Marie Pash, sworn 3 September 2021.
The Complaints Committee and the Law Complaints Officer have filed notice of their intention to abide the decision of the court. They had earlier advised the court that they do not seek to support the lawfulness of the appointment of the independent investigator, and will not challenge the correctness of the decision in Goldsmith v Law Complaints Officer,[4] in which Tottle J held invalid the Law Complaints Officer's appointment of a member of the bar to conduct the investigation into a complaint. The Attorney General has advised the court that, if given leave to intervene, he will adopt the same position.
[4] Goldsmith v Law Complaints Officer [2021] WASC 69.
The issues in controversy, accordingly, are confined to the lawfulness of the decision or conduct of the Complaints Committee in referring the matters relating to Mr Papamihail to the Tribunal.
The applicant opposes the Attorney General being heard.

Principles governing leave to intervene

The rules as to joinder of parties in O 18 of the Rules of the Supreme Court 1971 (WA) do not limit the court's power under O 56 r 5(2)(e) to allow a person not served with the application to be heard on it to those cases where a party would be joined.
The Attorney General does not contend that he is entitled to intervene by right. The principles guiding the exercise of the discretion to grant leave are well known.[5]
[5] See, for example, Roadshow Films Pty Ltd v iiNet Ltd [2011] HCA 54; (2011) 248 CLR 37 [2] ‑ [6]; Smith v Commissioners of the Rural and Industries Bank of Western Australia [2009] WASC 100 [41] ‑ [43].
The power to grant leave to the Attorney General for a State to intervene in proceedings may be exercised where the decision of the Court can, or may, have a bearing upon the legislative or executive power or other direct interests of the State.[6]
[6] R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 117, 182; Levy v The State of Victoria [1997] HCA 31; (1997) 189 CLR 579, 601 ‑ 603; Smith v Commissioners of the Rural and Industries Bank of Western Australia [41].
The power may also be exercised where the decision of the Court can, or may, have a bearing on the indirect interests of the State and it would be in the interests of justice to do so.[7]
[7] Smith v Commissioners of the Rural and Industries Bank of Western Australia [41]; Commonwealth Bank of Australia v The Law Debenture Trust Corporation PLC [No 4][2018] WASC 165, [12], [14].
It may also be in the interests of justice to grant leave to the Attorney General for a State to intervene when the parties to the particular proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination,[8] for example, where there is no appropriate contradictor in the proceedings.
[8] Levy v the State of Victoria, 603; Roadshow Films Pty Ltd v iiNet Ltd [2] ‑ [3], [6]; Commonwealth Bank of Australia v The Law Debenture Trust Corporation PLC [No 4] [12] ‑ [14].
In not taking an active role in the proceedings for judicial review, the Complaints Committee is taking a cautious approach. The Hardiman principle[9] does not exclude a decision‑maker making submissions in respect of its powers and procedures; and the issues which arise in a judicial review application such as this are often, if not exclusively, questions of law and procedure to which the exception applies. Further, as the applicant submitted, the Complaints Committee will be the 'prosecuting' party in the proceedings in the Tribunal and is not merely an impartial decision maker.
[9] R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35 ‑ 36.
If the applicant's position is correct, however, the decision to refer a matter to the Tribunal is a separate decision to which rules and principles governing administrative decision making – including the rules of natural justice – apply. Were the Complaints Committee to fully participate, the applicant might perceive that any future decision whether to refer these matters to the Tribunal might be affected by its participation in this action and the submissions it makes.
Where there is otherwise no obvious contradictor in relation to the decision and conduct of the Complaints Committee, and where the issues in controversy are limited by the concession regarding the appointment of the investigator, I am satisfied that the Attorney General may properly be heard and represent the public interest.
The Attorney General also supports his intervention on another basis. The proceedings call for consideration of the operation of the de facto officer principle. That is a principle in which the State is interested, which is of application beyond the particular statutory context in this action, and which finds its justification in the protection which it affords the public.[10] The proposed intervention is not based only on 'indirect or contingent affection of legal interests following from the extra-curial operation of the principles enunciated in the decision of the Court or their effect upon future litigation'.[11] The proposed intervention is in relation to an issue which is defined by its relation to the public interest. The Attorney General is an appropriate party to be heard on that question of public interest.
[10] G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503, 519 - 520, 527.
[11]Roadshow Films Pty Ltd v iiNet Ltd [2].
In the application for leave to intervene, it is not necessary for me to consider whether and how the principle applies. It is not disputed that the de facto officer principle is in issue, and that is sufficient to support the intervention of the Attorney General.
Finally, the Attorney General submits that the action raises questions about the proper construction of the Legal Profession Act and the State Administrative Tribunal Act 2004, which are matters of general importance in which there is a public interest. Those questions of construction would not, in themselves, be a sufficient reason to grant leave to intervene, even having regard to the role of the Attorney General under the Legal Profession Act. But it is a factor to which I have regard and which favours the Attorney General being heard.
Having regard to all those matters, I will grant the Attorney General leave to intervene. Because there is otherwise no contradictor, the leave to intervene will not be limited to any specified issues.
In opposing the application, Mr Papamihail submitted that, if leave is given, the Attorney General should pay his costs in any event. That submission is not supported by either authority or principle.
By O 56 r 7, the court may make an order for the payment of costs against
(a)the applicant;
(b)the person who made the challenged decision or engaged in the challenged conduct;
(c)a person served with the application;
(d)a person not served with the application whom the Court allowed to be heard on it.
The discretion of the court as to costs is not otherwise fettered. The question of who should pay the costs of the application, including the Attorney General's intervention, is best left to the completion of the proceedings when all factors relevant to the exercise of the discretion will be known.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Associate to the Honourable Justice Allanson
1 OCTOBER 2021