Papamihail v Legal Profession Complaints Committee [No 2]
[2021] WASC 346
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PAPAMIHAIL -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [No 2] [2021] WASC 346
CORAM: ALLANSON J
HEARD: 6 OCTOBER 2021
DELIVERED : 15 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 - Discovery of material before decision maker
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | J Lucy |
| First Respondent | : | C Beetham |
| Second Respondent | : | C Beetham |
| Third Respondent | : | No appearance |
| Intervenor | : | J Shaw |
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 |
Case(s) referred to in decision(s):
Australian Society for Kangaroos Inc v Secretary, Department of Environment, Land, Water and Planning [2018] VSC 88
Brewer v O'Sullivan [2016] WASC 275
Council of the Law Society of New South Wales v Levitt [2018] NSWCA 247
ALLANSON J:
The applicant, George Papamihail, is an Australian legal practitioner.
The Legal Profession Complaints Committee is a regulatory authority established pursuant to pt 16 div 2 of the Legal Profession Act 2008 (WA).
The Complaints Committee has referred two matters regarding the applicant's conduct to the State Administrative Tribunal, pursuant to s 428 of the Legal Profession Act. The applicant has applied for judicial review and, by chamber summons in that action, seeks orders requiring the Complaints Committee to file an affidavit as to 'facts material to the application'; alternatively he applies for leave to require the Complaints Committee to give discovery.
Under O 56 r 5(2) of the Rules of the Supreme Court 1971 (WA), the court may:
(c)order the applicant or any other person to file an affidavit as to any facts material to the application, the challenged decision or the challenged conduct;
(f)give the applicant leave to require a person served with the application to give discovery under Order 26;[1]
[1] Rules of the Supreme Court 1971 (WA), Order 56 rule 5 (2)(c)(f). Order 26, the order dealing with discovery, does not apply in proceedings for judicial review 'unless and to the extent the court, under rule 5(2) or Order 4A gives leave and orders otherwise': O 56 r 6.
There is no question that the court has the power to make the orders sought, pursuant to O 56 r 5(2)(c) and (f) of the Rules of the Supreme Court. The question is whether, in the exercise of discretion, such orders should be made.
In relation to an order under r 5(2)(c), having regard to O 1 r 4A and r 4B, the first question is whether the affidavit is as to facts that are material to the application. For both orders sought by the applicant, the court must also ask whether the order is 'essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial'.
Background
In June 2015, a complaint was made to the Complaints Committee (or its delegate, the Law Complaints Officer) regarding the applicant's conduct. The Law Complaints Officer gave notice of the complaint to the applicant.
On 9 June 2016, the Law Complaints Officer nominated an independent barrister, Martin Cuerden SC, to investigate the complaint. The applicant was represented by solicitors in his dealings with Mr Cuerden SC. It is not now in dispute that the Law Complaints Officer could not validly appoint an independent investigator.
By letter dated 20 April 2018, the Complaints Committee advised the applicant (through his solicitors) that at a meeting of the Committee it had resolved pursuant to s 428 of the Legal Profession Act that the matter of the applicant's conduct in and in connection with his acting for three named clients be heard by the State Administrative Tribunal, and accordingly that the matter be referred to the Tribunal.
By the same letter, the Committee advised the applicant that it was of its own initiative investigating whether he had engaged in unsatisfactory professional conduct or professional misconduct in relation to matters which arose in the investigation, and invited his submissions.
On 18 September 2018, the Committee advised the applicant that it had resolved pursuant to s 428 that those further matters of the applicant's conduct be referred to the Tribunal.
Proceedings in the Tribunal were commenced on 15 April 2019.
On 14 June 2021, the applicant brought judicial review proceedings in relation to those decisions, and related matters. Relevantly for the present application, the grounds of the judicial review application include:
(1)the Complaints Committee denied the applicant procedural fairness by failing to disclose to the applicant, and invite submissions about, the report and other material obtained by Mr Cuerden SC, before deciding whether to refer the applicant to the Tribunal, in circumstances where Mr Cuerden SC had not lawfully been nominated or appointed as an investigator;
(2)in deciding to refer the matter to the Tribunal, the Complaints Committee impermissibly had regard to the report and other material obtained by Mr Cuerden SC in circumstances where Mr Cuerden SC had not lawfully been nominated or appointed as an investigator;
(3)in purporting to refer the matter arising from the Tribunal in accordance with ss 424(l)(c) and 428(1) of the Act, the Complaints Committee misdirected itself as to its statutory task and, or in the alternative, disregarded the nature or limits of its functions or powers, because its purported referral was made on the erroneous basis that an 'investigation' had been completed and that it was required to decide to take the action specified in s 424(1)(a), (b) or (c) of the Act.
The applicant seeks relief including:
(1)a declaration that the purported appointment or nomination of Mr Cuerden SC as investigator by the Law Complaints Officer was unlawful and void.
(2)a writ of certiorari, quashing (or alternatively an order setting aside) the decisions of the Complaints Committee on 17 April 2018 and 21 August 2018 to refer to the State Administrative Tribunal, pursuant to s 428(1) of the Act, a matter involving the applicant.
The applicant also applies for a writ of prohibition, or alternatively an injunction, prohibiting the third respondent from hearing and determining proceedings in the Tribunal.
The present applications
By chamber summons filed 28 September 2021, the applicant applies for the following interlocutory orders:
1.Pursuant to Order 56 Rule 5(2)(c) of the Rules of the Supreme Court 1971, and, if necessary, the Court's inherent powers, order the [Complaints Committee] to file an affidavit:
a.as to facts material to the application, being:
i. the documents which were before the [Complaints Committee] when it made its decision of 17 April 2018 to refer the matter of the applicant's conduct to the [Tribunal] (the First Referral Decision);
ii. the documents which were before the [Complaints Committee] when it made its decision of 21 August 2018 to refer the matter of the applicant's conduct to the [Tribunal] (the Second Referral Decision);
b. identifying and annexing documents provided to it by Mr Cuerden SC which were before it at the time of making the First Referral Decision, including any report of Mr Cuerden SC; and
c. identifying and annexing documents provided to it by Mr Cuerden SC which were before it at the time of making the Second Referral Decision, including any report of Mr Cuerden SC.
2.In the alternative, pursuant to Order 56 Rule 5(2)(f) of the Rules of the Supreme Court 1971, the applicant have leave to give notice in writing to the [Complaints Committee] requiring it to give discovery of the documents which are in its possession, custody or control being:
a.documents provided to it by Mr Cuerden SC which were before it at the time of making the decision of 17 April 2018 to refer the matter of the applicant's conduct to the [Tribunal], including any report of Mr Cuerden SC; and
b.documents provided to it by Mr Cuerden SC which were before it at the time of making the decision of 21 August 2018 to refer the matter of the applicant's conduct to the [Tribunal], including any report of Mr Cuerden SC.
The applicant's submissions on the interlocutory application
The applicant submits that the orders sought are necessary for the proper administration of justice and for disposing fairly of a ground of judicial review. He submits that the threshold test for discovery - subject to any countervailing discretionary factors - is whether he has a good case, or at least an arguable case, proof of which would be aided by discovery.[2] The applicant submits that essentially the same test should be applied to his application for the Complaints Committee to file an affidavit of material facts.
[2] Australian Society for Kangaroos Inc v Secretary, Department of Environment, Land, Water and Planning [2018] VSC 88 [21].
The applicant submits that there must be a strong inference that Mr Cuerden SC provided a report and possibly other material to the Complaints Committee and he has, at least, an arguable case this was in breach of procedural fairness, and involved the Complaints Committee misdirecting itself as to its task.
The applicant submits that the documents sought - either on affidavit or on discovery - are material and relevant, being the documents that were before the decision-maker at the time the relevant decision was made.
The applicant submits that it would be preferable for there to be certainty about the matters which were taken into account by the Complaints Committee, rather than the court being required to infer what matters were considered relevant.[3] It would aid the court in the resolution of these proceedings to have the documents which were before the Complaints Committee, as well as clarify any factual issue regarding what documents were before the committee and at what time.
[3] Brewer v O'Sullivan [2016] WASC 275.
The applicant further submits that, should materiality of any breach of procedural fairness or other error be in issue, it will be necessary for the applicant to respond to the content of the documents. The applicant cannot respond to a submission that disclosure would not have affected the outcome of the decision without knowing what material was before the committee and what response he could have made to it.
The statutory context
The Legal Profession Act 2008 (WA)
Part 13 of the act deals with complaints and discipline of Australian legal practitioners.
Section 410(1)(e), provides for how a complaint may be made. A complaint may be made direct to the Complaints Committee or through the Law Complaints Officer.[4]
[4] Section 410(2).
The Complaints Committee must ensure that, as soon as practicable after a complaint is made, written notice is given to the practitioner about whom the complaint is made. Section 414 provides for the practitioner about whom the complaint is made to make submissions.
Section 415 provides for the circumstances in which the Complaints Committee may summarily dismiss a complaint.
Where a complaint has not been dismissed or withdrawn, s 421(2) provides that the Complaints Committee must investigate each complaint. Part 13, div 6 provides for investigations by the Complaints Committee.
Division 7 deals with decisions of the Complaints Committee. By s 424(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.
Section 426 authorises the Complaints Committee to summarily dispose of a complaint, after investigation, with the consent of the practitioner concerned.
By s 428:
(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 the matter to the State Administrative Tribunal.
The Committee may make an order requiring a practitioner to pay all or part of the costs of the complainant or the Complaints Committee in relation to an investigation. It is not alleged that a costs order was made against the applicant.
Part 13 div 8 contains general procedural matters, including the parties to proceedings before the Complaints Committee,[5] that the Complaints Committee must deal with complaints as efficiently and expeditiously as possible,[6] and that it may inform itself in any manner it sees fit.[7]
[5] Section 433.
[6] Section 431.
[7] Section 430(2).
By s 430(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 s 426.
The Complaints Committee must notify the complainant and the practitioner of:
(a)a decision under section 424(1)(a) in relation to the matter; or
(b)a decision under section 426 in relation to the matter; or
(c)a decision to refer the matter to the State Administrative Tribunal.[8]
[8] Section 432(1).
A statement of reasons must be given in the case of a decision under s 424(1)(a) or s 426. Reasons are not required for a decision to refer a matter to the Tribunal under either s 424(1)(c) or s 428.
Proceedings in the Tribunal are dealt with in pt 13, div 10. The powers of the Tribunal include the power to make interlocutory or interim orders as it thinks fit.
A matter referred to the Tribunal under the Legal Profession Act comes within the Tribunal's original jurisdiction.
Consideration
The decision of the Complaints Committee in each matter, recorded in the two letters to the applicant's solicitor, was that the matter of the applicant's conduct was referred to the Tribunal pursuant to s 428 of the Legal Profession Act.[9] The decision was expressly under s 428 and not under s 424(1)(c).
[9] Affidavit of David Williams, sworn 14 June 2021, DWW 13, DWW 14.
The Complaints Committee is not required to give reasons for a decision to refer a matter to the Tribunal under s 428. Section 427, which requires the Complaints Committee to keep a record of its decisions under s 424, does not include a referral under s 428.
I have also had regard to s 428(2), by which:
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.
That is, a decision under s 428 need not be on the basis that an investigation had been completed, and the Complaints Committee was not required to decide whether to make the referral on the material arising from that investigation.
Not only are reasons not required, but s 428(1) does not prescribe any criteria which must be satisfied, or any matters to which the Complaints Committee must have regard when referring a matter to the Tribunal. There are no facts which the Complaints Committee must find, and its decision is not dependent upon its opinion, belief, or state of mind in relation to any matter. The section provides, simply, that the Complaints Committee may refer a matter if it determines that the matter should be heard by the Tribunal.
In that regard, pt 13 of the Legal Profession Act differs materially from the legislation considered by the Court of Appeal of New South Wales in Council of the Law Society of New South Wales v Levitt,[10] a case on which the applicant relied. The Legal Profession Act 2004 (NSW)[11] required the relevant regulatory body to commence proceedings in the Tribunal with respect to a complaint 'if satisfied that there is a reasonable likelihood that the practitioner will be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct'.
[10] Council of the Law Society of New South Wales v Levitt [2018] NSWCA 247.
[11] Since repealed.
In that statutory context, and with regard to the nature of the decision sought to be impugned, I am not satisfied that it is reasonably necessary for the fair and just determination of the issues on this application for judicial review that the material sought by the applicant be before the court.
The application will be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Associate to the Honourable Justice Allanson
15 OCTOBER 2021
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