Papamihail v Legal Profession Complaints Committee [No 3]
[2022] WASC 236
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: PAPAMIHAIL -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [No 3] [2022] WASC 236
CORAM: ALLANSON J
HEARD: 16 & 26 NOVEMBER 2021
DELIVERED : 26 JULY 2022
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:
Administrative Law - Legal practitioner - Where complaint against practitioner investigated on behalf of Legal Profession Complaints Committee by invalidly appointed investigator - Whether de facto officer doctrine applies
Administrative Law - Legal practitioner - Where matter of practitioner's conduct referred to State Administrative Tribunal - Whether the referral comprised a specific item of unsatisfactory professional conduct or professional misconduct so as to constitute the referral of a matter under s 424 and s 428 of the Legal Profession Act 2008 (WA)
Administrative Law - Legal practitioner - Where matter of practitioner's conduct referred to State Administrative Tribunal - Whether Complaints Committee denied the practitioner procedural fairness by not inviting submissions on the material obtained by the investigator before referring matter of the practitioner's conduct to the Tribunal
Administrative Law - Legal practitioner - Where matter of practitioner's conduct referred to State Administrative Tribunal - Whether Complaints Committee erred by having regard to the report and information obtained by the investigator before referring the matter of the practitioner’s conduct to the Tribunal
Administrative Law - Legal practitioner - Where matter of practitioner's conduct referred to State Administrative Tribunal - Whether Complaints Committee erred by making referral on the erroneous basis that the investigation of the complaint against the practitioner was complete
Administrative Law - Legal practitioner - Where matter of practitioner's conduct referred to State Administrative Tribunal - Whether Complaints Committee erred by finding or assuming that the appointment of the investigator was valid and thereby misunderstood its functions and powers
Administrative Law - Apprehended bias - Whether judge should recuse because of membership of the Complaints Committee before appointment as a judge
Legislation:
Legal Profession Act 2008 (WA), s 424, s 428
Rules of the Supreme Court 1971 (WA)
State Administrative Tribunal Act 2004 (WA)
Result:
Application for judicial review dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Ms J Lucy |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
| Third Respondent | : | No appearance |
| Intervenor | : | Ms 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 |
Cases referred to in decision:
Allianz Aust v GSF Aust [2005] HCA 26; (2005) 221 CLR 568
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13
AYHT v Medical Board SA [2000] SASC 136; (2000) 77 SASR 148
BEG15 v Minister for Immigration and Border Protection [2019] HCA 3; (2019) 264 CLR 421
C v The Independent Commissioner Against Corruption [2020] SASCFC 57; (2020) 136 SASR 215
Cassell v The Queen [2000] HCA 8; (2000) 201 CLR 189
Chang v Legal Profession Complaints Committee [No 2] [2020] WASCA 208; (2020) 56 WAR 263
Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373
Commissioner of Police v Ferguson [2019] WASCA 14; (2019) 54 WAR 177
Commonwealth v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104; (2008) 169 FCR 85
Council of the Law Society of New South Wales v Levitt [2018] NSWCA 247
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Edwards (Inspector of Taxes) v Clinch [1981] 3 WLR 707
Goldsmith v Law Complaints Officer [2021] WASC 69
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Kirk Group Holdings Pty Ltd v WorkCover Authority of (NSW) (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531
Kutlu v Director of Professional Services Review [2011] FCAFC 94; 197 FCR 177
Legal Profession Complaints Committee v Rayney [2017] WASCA 78; (2017) 51 WAR 142
Melrose Farm Pty Ltd t/as Milesaway Tours v Milward [2008] WASCA 175
Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Northern Territory of Australia v Sangare [2019] HCA 25; (2019) 265 CLR 164
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Parker v Miller [1998] WASCA 124. Lib No 980249
R v Solicitors' Disciplinary Tribunal; Ex parte L (a solicitor) [1988] VR 757
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Sanders v City of South Perth [2019] WASC 226
Saraceni v Australian Securities and Investment Commission [2013] FCAFC 42; (2013) 211 FCR 298
Tulloh v CEO Department of Corrective Services [2018] WASC 105
Turner v Northern Territory of Australia [2021] NTSC 55
Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492
Wintawari Guruma Aboriginal Corporation RNTBC v The Hon Benjamin Sana Wyatt [2019] WASC
ALLANSON J:
Introduction
George Papamihail, is an Australian legal practitioner.
On 17 April 2021 and on 21 August 2018, the Legal Profession Complaints Committee resolved to refer matters of the practitioner's conduct to the State Administrative Tribunal.
The decision of the Complaints Committee was made after investigation of a complaint, including investigations by a Senior Counsel nominated by the Law Complaints Officer as an investigator under pt 15 of the Legal Profession Act 2008 (WA). By a letter to the practitioner, dated 16 March 2021, the Complaints Committee advised him that the Supreme Court had that day delivered a decision regarding the validity of the appointment of an investigator under pt 15 in another matter.[1]
[1] Affidavit David Williams sworn 14 June 2021, DWW-17.
On 14 June 2021, the practitioner filed an application for judicial review of the decisions of the Complaints Committee referring his matter to the Tribunal. The application has since been amended. The practitioner applies for a declaration that the purported appointment or nomination by the Law Complaints Officer of Martin Cuerden SC as an investigator was unlawful and void. He seeks writs in the nature of certiorari to quash or set aside the decisions to refer matters regarding him to the Tribunal, and a writ of prohibition, or alternatively an injunction, prohibiting the Tribunal from hearing and determining proceedings VR 52 of 2019.
Each of the respondents to the application abides the decision of the court. The Attorney General of Western Australia intervened.
The application is clearly outside the limitation period prescribed in Order 56 of the Rules of the Supreme Court 1971 (WA). The proceedings before the Tribunal are, however, still pending. In those circumstances it was accepted that the writ of prohibition would still lie if the referral which grounds the tribunal's jurisdiction is invalid.
In these reasons, all references to legislation, unless stated otherwise, are to the Legal Profession Act.
The regulatory authorities
The Legal Profession Act is, by its long title:
An Act -
·to provide for the regulation of legal practice in Western Australia; and
·to facilitate the regulation of legal practice on a national basis; and
·for other related purposes.
Part 16 of the Act provides for the establishment of three regulatory authorities for the regulation of the legal profession: the Legal Practice Board; the Legal Profession Complaints Committee; and the Law Complaints Officer.
The members of the Board include the Attorney General, the Solicitor General, those Senior Counsel who nominate as a member, and 12 local legal practitioners of at least three years standing practice who are elected as members.[2]
[2] Legal Profession Act s 536(1).
The Complaints Committee is a committee of the Board.[3] It consists of a chairperson and not less than six other legal practitioners, appointed by the board from amongst its members from time to time, and not less than two community representatives.[4]
[3] Legal Profession Act s 555.
[4] Legal Profession Act s 556(1).
The functions of the Complaints Committee, pursuant to s 557(2) of the Act include:
(a)to supervise the conduct of legal practitioners; and
(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; and
(d)to supervise and direct the Law Complaints Officer in the performance of the functions of that officer;
In any meeting of the Complaints Committee a quorum is constituted by three members, of whom two are appointed members and one is a community representative.[5] Meetings of the Complaints Committee may be convened by the chairperson, by the Law Complaints Officer, or at such times and places as the Complaints Committee determines.[6]
[5] Legal Profession Act s 566(1).
[6] Legal Profession Act s 567.
Decisions of the Complaints Committee are determined by a majority of votes.[7]
[7] Legal Profession Act s 569.
Subject to the Act, 'the Complaints Committee may determine its own procedures and is not required to conduct any proceedings in a formal manner'.[8]
[8] Legal Profession Act s 570.
Part 16 div 3 provides for the establishment of the office of Law Complaints Officer and their staff.
By s 573(1), the Complaints Committee may, subject to that section, delegate any power or duty of the Complaints Committee under another provision of the Act to the Law Complaints Officer. The Complaints Committee must not delegate its powers under s 426 to deal summarily with a complaint.[9]
[9] Legal Profession Act s 573(2).
The Board may employ or engage staff for the purposes of assisting the Complaints Committee and the Law Complaints Officer.[10]
[10] Legal Profession Act s 574.
The evidence
The practitioner relied on an affidavit which he swore on 6 August 2021 (addressing the delay in commencing proceedings). He also read two affidavits of his solicitor, David Williams, sworn 14 June 2021 and 15 November 2021.
The Complaints Committee filed an affidavit of Cassandra Claire Paterson, affirmed 18 August 2021.
Both Mr Williams and Ms Paterson provided, in substance, a chronology of the matter from the receipt of the complaint against the practitioner to the application for judicial review, with relevant documents.
Ms Paterson also attached documents including the documents filed by the Complaints Committee in the proceedings in the Tribunal (excluding medical evidence).
Background
In June 2015, a complaint was made to the Complaints Committee regarding the practitioner's conduct. The Law Complaints Officer gave notice of the complaint to the practitioner. The complainant later amended her complaint to allege that the practitioner had attempted to further the interests of his client by unfair means, and that he had a conflict of interest in acting for that client.
On 9 June 2016, the Law Complaints Officer nominated an independent barrister, Martin Cuerden SC, to investigate the complaint.
It is not now in dispute that the Law Complaints Officer could not validly nominate Mr Cuerden as investigator and could only nominate staff employed or engaged by the Board.
On 20 October 2017, Mr Pope, Senior Legal Officer and Manager Investigations, wrote to the solicitor for the practitioner, advising that it was intended that the complaint be referred to a meeting of the Complaints Committee in November 2017 for determination. Mr Pope also advised that the Complaints Committee, on its own initiative, was investigating three specified matters concerning the practitioner.[11] The practitioner was invited to make any further or specific submissions in respect of those matters to the Complaints Committee by 10 November 2017. The Complaints Committee also issued a summons directed to the practitioner to produce documents.
[11] Affidavit of David Williams sworn 14 June 2021, DWW-10.
The Minutes of the meeting of the Complaints Committee of 17 April 2017 record:
Mr George Papamihail - Ms [X]
This matter was before the Complaints Committee to consider the practitioner's conduct:
(a)in respect of communications with the complainant and her solicitors in December 2014 relating to a trust of which the complainant was a co-trustee with the practitioner's client [Ms P] and in acting for both [Ms P] and her children in Supreme Court proceedings against the complainant;
(b)in connection with the provision to Investigator, Mr Martin Cuerden SC of Statutory Declarations made by [ Ms M-A P] and [Ms P] on 11 November 2016;
(c)in respect of the provision to the Complaints Committee of a Statutory declaration made by the practitioner on 15 March 2008 and whether that statutory declaration contained false and/or misleading statements.
Resolved
The Complaints Committee resolved that:
1.Pursuant to section 428 of the Legal Profession Act 2008, that the matter of the practitioner's conduct in, and in connection with, or incidental to, acting for Ms P and/or [E, T and Ms M-AP] in respect of a Deed of Trust dated 2 December 1994 and Supreme Court proceedings CIV 1186 of 2015 be heard by the State Administrative Tribunal and accordingly that the matter be referred to the Tribunal.
2.The practitioner be advised that the Complaints Committee is investigating the following conduct of its own initiative under section 421 of the Act and be invited to make submissions in respect of that conduct:
a.procuring/and/or preparing or assisting with the preparation of statutory declarations of [Ms M-A P] and [Ms P] both made on 11 November 2016 (2016 Statutory Declarations) which contained false and/or misleading statements in circumstances where the practitioner knew the 2016 statutory declarations contained false and/or misleading statements or was recklessly indifferent as to whether the 2016 statutory declarations contained false and/or misleading statements;
b.misleading or attempting to mislead Mr Martin Cuerden SC as an Investigator under Part 15 of the Legal Profession Act 2008 (Act) (Investigator) and the Complaints Committee by causing the 2016 statutory declarations to be provided to Mr Cuerden SC in circumstances where the practitioner knew the 2016 Statutory Declarations contained false and/or misleading statements, alternatively, was recklessly indifferent as to whether the 2016 Statutory Declarations contained false and/or misleading statements, and doing so with the intention of misleading the investigator and the Complaints Committee;
c.knowingly making a Statutory Declaration on 15 March 2018 which contained false and/or misleading statements;
d.on or about 15 March 2018 misleading, or attempting to mislead the Complaints Committee by causing a Statutory Declaration made by him on 15 March 2018 to be provided to the Complaints Committee which he knew contained false and/or misleading statements, alternatively with reckless indifference as to whether his statutory declaration contained false and/or misleading statements, and doing so with the intention of misleading the Complaints Committee.[12]
[12] Affidavit of David Williams sworn 15 November 2021 DWW-3.
By letter dated 20 April 2018, the Complaints Committee advised the practitioner (through his solicitors) that it had resolved pursuant to s 428 of the Legal Profession Act 'that the matter of [the practitioner's] conduct in and in connection with, or incidental to, his acting for [three named persons] in respect of a Deed of Trust dated 2 December 1994 and Supreme Court proceedings CIV 1186 of 2015 be heard by the State Administrative Tribunal and accordingly that the matter be referred to the Tribunal'.[13]
[13]Affidavit of David Williams sworn 14 June 2021, DWW-13.
By the same letter, the Complaints Committee advised the practitioner 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, including by misleading Mr Cuerden, and invited his submissions.
On 18 September 2018, the Complaints Committee advised the practitioner that it had resolved pursuant to s 428 that:
…the matters of the practitioner's conduct in, and in connection with, or incidental to:
(a)The preparation and provision to Mr Martin Cuerden SC, an Investigator nominated under Part 15 of the Act, of Statutory Declarations of [Ms MA P and Ms P] both made on 11 November 2016 and correspondence to Mr Cuerden SC by the practitioner's solicitors on behalf with the practitioner dated 17 November 2016, 7 December 2016 and 8 February 2017; and
(b)The making and provision to the [Complaints] Committee of a Statutory Declaration made by the practitioner on 15 March 2018,
be heard by the State Administrative Tribunal and accordingly those matters be referred to the Tribunal.[14]
[14]Affidavit of David Williams sworn 14 June 2021, DWW-14.
On 15 April 2019, the Complaints Committee commenced proceedings VR 52 of 2019 in the State Administrative Tribunal, seeking orders that the tribunal make findings that the practitioner has engaged in professional misconduct. The application set out five grounds, together with a statement of facts and contentions. The statement of the grounds particularised the complaint against the practitioner in detail, and at length.
On 14 June 2021, the practitioner brought these proceedings. The practitioner filed an amended application on 15 November 2021.
The decisions
The application identifies three decisions and one instance of conduct, the subject of the application for review:
(1)The decision of the Law Complaints Officer on 9 June 2016 to appoint Mr Martin Cuerden SC as investigator of the complaint about the alleged conduct of the practitioner.
(2)The decision of the Complaints Committee on or about 17 April 2018 to refer to the State Administrative Tribunal the matter of whether the practitioner had engaged in unsatisfactory professional conduct or professional misconduct in relation to the conduct the subject of the complaints and related conduct (the First Referral Decision).
(3)The decision of the Complaints Committee on or about 21 August 2018 to refer to the State Administrative Tribunal the matter of whether the practitioner had engaged in unsatisfactory professional conduct or professional misconduct in relation to the conduct the subject of the investigation by Mr Cuerden (the Second Referral Decision).
(4)The conduct of the State Administrative Tribunal in its purported exercise of jurisdiction to hear and determine proceedings VR 52 of 2019.
Statutory context
Investigations and investigators
Part 15 of the Act regulates investigations. Relevantly, for these proceedings, it provides for the position of an investigator, defined in s 517(1) as the Law Complaints Officer or a person nominated by the Law Complaints Officer.
By s 520:
(1)For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, an investigator may, by notice or summons served on the lawyer, require the lawyer to do any one or more of the following -
(a)to produce, at or before a specified time and at a specified place, any specified document (or a copy of the document);
(b) to produce, at a specified time and at a specified place, any specified document (or a copy of the document);
(c) to provide written information on or before a specified date;
(d) to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner.
(2)For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, an investigator 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 (including, for example, an ADI, auditor or liquidator but not including the lawyer) to give the investigator either or both of the following -
(a)access to the documents relating to the affairs of the lawyer the investigator reasonably requires;
(b) information relating to the affairs of the lawyer the investigator reasonably requires.
(3) An investigator may require that information required to be given under subsection (1) or (2) be verified on oath or affirmation or by statutory declaration.
(4) An investigator may administer an oath or affirmation for the purposes of subsection (3).
(5) A person who is subject to a requirement under subsection (1), (2) or (3) must comply with the requirement. Penalty: a fine of $5 000.
(6) A requirement imposed on a person under subsection (1), (2) or (3) must be notified in writing to the person and must specify a reasonable time for compliance.
(7) A summons issued under this section has the same effect as a subpoena ad test or duces tecum, as the case may be, issued by the Supreme Court for the attendance of a witness for examination or production of documents in a civil action.
(8) Obedience to, or non-observance of, a summons issued under this section may be enforced and punished by a judge in chambers in the same manner as in the case of obedience to, or non-observance of, a subpoena issued by the Supreme Court.
Part 15 div 3 confers powers on investigators, including entry and search of premises.
It is an offence for any person, without reasonable excuse, to obstruct or mislead an investigator.[15] Section 532 provides specifically for obligations of Australian lawyers:
[15] Legal Profession Act s 531.
(1)The duties imposed on an Australian lawyer by this section are additional to obligations imposed under other provisions of this Part, whether or not the lawyer is the subject of the investigation, examination or audit concerned.
(2) An Australian lawyer must not mislead an investigator, the Board or the Complaints Committee in the exercise of -
(a) any function under this Part; or
(b) any function under a provision of a corresponding law that corresponds to this Part.
(3) An Australian lawyer who is subject to -
(a) a requirement under section 520; or
(b) a requirement under provisions of a corresponding law that correspond to that section,
must not, without reasonable excuse, fail to comply with the requirement.
Complaints and discipline
Part 13 of the Act provides for discipline of the legal profession. Sections 401 to 404 define and give content to the 'key concepts' of unsatisfactory professional conduct and professional misconduct.
Part 13 div 4 provides for complaints against Australian legal practitioners.
A complaint about an Australian legal practitioner may be made by the person specified in s 410, including the Attorney General, the Board, any legal practitioner, or any other person who has a direct personal interest in the matters alleged in the complaint. A complaint may be made direct to the Complaints Committee or through the Law Complaints Officer.[16]
[16] Legal Profession Act s 410(2).
The practitioner submits, and it is not controversial, that the Act provides procedural requirements at various stages of the process from receipt of a complaint to either determining it or referring a matter to the Tribunal.
First, subject to exceptions, none of which is relevant, as soon as practicable after a complaint is made, the Complaints Committee must ensure that written notice of the making of the complaint, the nature of the complaint and the identity of the complainant is given to the practitioner.[17]
[17] Legal Profession Act s 413.
Second, the practitioner about whom complaint is made may make submissions to the Complaints Committee about the complaint or its subject matter or both.[18]
[18] Legal Profession Act s 414(1).
By s 415:
(1)The Complaints Committee may dismiss a complaint if -
(a) further details are not given, or the details of the complaint are not verified, as required by the Complaints Committee under section 412; or
(b) the complaint is vexatious, misconceived, frivolous or lacking in substance; or
(c) the conduct complained about is the subject of another complaint; or
(d) it is not in the public interest to deal with the complaint having regard to the fact that the name of the Australian legal practitioner to whom the complaint relates has already been removed from any Australian roll on which the practitioner was enrolled.
(2)The Complaints Committee must dismiss a complaint if -
(a)the complaint was made more than 6 years after the conduct complained of is alleged to have occurred, unless a determination is made under section 411 in relation to the complaint; or
(b) the conduct complained about has been the subject of a previous complaint that has been dismissed; or
(c) the complaint is not one that the Complaints Committee has power to deal with.
(3)The Complaints Committee may dismiss a complaint under this section without completing an investigation if, having considered the complaint, the Complaints Committee forms the view that the complaint requires no further investigation.
By s 421(2), the Complaints Committee must investigate each complaint. That obligation does not, however, apply to a complaint that is referred to the Tribunal, a complaint that is dismissed or withdrawn, or a complaint that is the subject of mediation.[19]
[19] Legal Profession Act s 421(3).
The Complaints Committee may also, on its own initiative, investigate the conduct of an Australian legal practitioner if it has reasonable cause to suspect the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.[20]
[20] Legal Profession Act s 421(1).
Part 13 div 7 provides for the 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.
(2)Nothing in this section affects section 416.
Section 425 provides that the Complaints Committee may dismiss the complaint after investigation if satisfied there is no reasonable likelihood the practitioner would be found guilty of either unsatisfactory professional conduct or professional misconduct, or if it is in the public interest to do so.
Section 426 empowers the Complaints Committee, if this section applies, to reprimand a practitioner, order the practitioner to pay a fine not exceeding $2500, make a compensation order, or order the practitioner to seek and implement advice with regard to the management and conduct of their practice. By s 426(1), the section applies if:
(a) the Complaints Committee -
(i)completes an investigation into the conduct of an Australian legal practitioner; and
(ii) is satisfied that there is a reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of unsatisfactory professional conduct (but not professional misconduct); and
(iii) is satisfied that the practitioner is generally competent and diligent; and
(iv) is satisfied that the taking of action under this section is justified having regard to all the circumstances of the case (including the seriousness of the conduct concerned) and to whether any other substantiated complaints have been made against the practitioner; and
(b)the Australian legal practitioner concerned consents to the exercise of power by the Complaints Committee under this section.
The third power referred to in s 424(1) is that in s 428:
(1) If the Complaints Committee determines that a matter should be heard by the State Administrative Tribunal the Complaints 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.
Section 427 requires the Complaints Committee to cause a record of each decision under s 424, together with the reasons for the decision, to be kept in respect of each investigation under s 421. That section must, however, be read with s 432 which requires the Complaints Committee to provide a statement of reasons to a complainant and the practitioner where the Complaints Committee dismisses a complaint or deals with it summarily under s 426.
Part 13 div 8 contains general procedural matters relating to proceedings before the Complaints Committee.
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 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.
Section 433 provides for parties to 'proceedings before the Complaints Committee'. On the ordinary meaning of those words, they include proceedings under s 426 but do not include all meetings of the Complaints Committee where a complaint or investigation is considered. Specifically, the word 'proceedings' is not apt to describe a meeting or part of a meeting where the Complaints Committee determines to refer a matter to the Tribunal.
A decision to dismiss a complaint, and a decision under s 426, is reviewable by the Tribunal.[21]
[21] Legal Profession Act s 435.
The State Administrative Tribunal
In considering the jurisdiction of the Tribunal, it is necessary to read the State Administrative Tribunal Act 2004 (WA) together with pt 13 div 10 of the Legal Profession Act.
The State Administrative Tribunal Act confers two kinds of jurisdiction on the Tribunal: original jurisdiction and review jurisdiction.[22]
[22] State Administrative Tribunal Act 2004 (WA) s 14.
Section 438 of the Legal Profession Act confers original jurisdiction on the Tribunal to make a finding that an Australian legal practitioner engaged in unsatisfactory professional conduct or professional misconduct. Section 437 provides for the constitution of the Tribunal for the purpose of exercising jurisdiction conferred on it.
In exercising its original jurisdiction 'the Tribunal is to deal with a matter in accordance with this Act and the enabling Act'.[23]
[23] State Administrative Tribunal Act s 16(1).
Section 42 of the State Administrative Tribunal Act provides for bringing a matter before the Tribunal 'by referral or other means'. Similarly, s 3(4) provides that a reference in the Act to the making of an application to the Tribunal includes a reference to a matter being referred to the Tribunal.[24]
[24] See also the definition of 'application' in s 3, which includes 'a referral or other means of bringing a matter before the Tribunal'.
In Chang v Legal Profession Complaints Committee [No 2], Buss P and Murphy JA said of the process for referral under s 428 of the Legal Profession Act:
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. [25]
[25] Chang v Legal Profession Complaints Committee[No 2] [2020] WASCA 208; (2020) 56 WAR 263 [164].
Mitchell JA said:
A referral by the [Complaints] Committee is effected by making an allegation that a practitioner has engaged in particularised conduct in an application to the Tribunal. The referral to the Tribunal of the question of whether the appellant engaged in professional misconduct by making false statements in her witness statement was effected when the Tribunal permitted the [Complaints] Committee to amend its application to add the new allegation. … The [Complaints] Committee's power to refer the new matter to the Tribunal did not depend on it having received a complaint about, or conducted an investigation into, the matter. Nor was it a matter outside the scope of the [Complaints] Committee's power of delegation, as to necessarily require the [Complaints] Committee itself to resolve to refer the matter. (footnotes omitted)[26]
[26] Chang [373].
A proceeding before the Tribunal commences when the application is accepted by the executive officer of the Tribunal.[27]
[27] State Administrative Tribunal Act s 42(3).
Once a matter is before the Tribunal, subject to the enabling Act, the Tribunal's procedures are governed by Pt 4 of the State Administrative Tribunal Act and the rules of the Tribunal.
The grounds of the application
The statement of grounds in the application includes allegations of fact and of grounds of invalidity. Relevantly, the practitioner (applicant) alleges:
The First Referral Decision was invalid because:
8 a1. the First Referral Decision did not comprise a specific item of unsatisfactory professional conduct or professional misconduct and thereby did not constitute the referral of a 'matter' to the Third Respondent within the meaning of s 424(2)(c) and s 428 of the Act, which referral was necessary for the Third Respondent to have jurisdiction to hear and determine Grounds 1, 2 and 3 of the first respondent's application;
8 a. the first respondent 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;
8 b. in deciding to refer the matter to the third respondent, the first respondent 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;
8 c. in purporting to refer the matter arising from the Complaint to the Tribunal in accordance with ss 424(1)(c) and 428(1) of the Act, the first respondent 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;
8 d. those errors were jurisdictional;
8 e. the first respondent's discretion, when determining whether to refer the matter arising from the Complaint to the Tribunal, miscarried in that it was infected by any or all of the jurisdictional errors identified above.
…
The Second Referral Decision was invalid because:
11 a1. the Second Referral Decision did not comprise a specific item of unsatisfactory professional conduct or professional misconduct and thereby did not constitute the referral of a 'matter' to the Third Respondent within the meaning of s 424(2)(c) and s 428 of the Act, which referral was necessary for the Third Respondent to have jurisdiction to hear and determine Grounds 4 and 5 of the first respondent's application;
11 a. the first respondent 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;
11 b. the first respondent misdirected itself in finding or assuming that Mr Cuerden SC was an investigator nominated under Part 15 of the Act, and thus misunderstood its functions and powers;
11 c. each of these errors was jurisdictional; and
11 d. the first respondent's discretion, when determining whether to refer the matters arising from its investigation to the Tribunal, miscarried in that it was infected by either or both of the jurisdictional errors identified above. On those grounds, the practitioner further contends that the Tribunal does not have jurisdiction to hear and determine the grounds of the Complaints Committee's application.
De facto officers
The Complaints Committee had before it the report of and material obtained by Mr Cuerden, when Mr Cuerden was not validly appointed or nominated as an investigator under the Act. This was the primary basis for the intervention of the Attorney General, who made detailed submissions on the application of the de facto officers doctrine. I will consider that issue as a preliminary question.
The Attorney General accepted that the nomination of Mr Cuerden as investigator was invalid. He submitted, however, that:
1.An administrative decision which is legally invalid does not necessarily have no legal effect unless and until it is set aside or declared to be invalid; and
2.Whether a legally invalid decision has any relevant legal effect before it is set aside depends upon the statutory framework under which, and the context in which, the decision is made.[28]
3.Where an administrative decision is made on the basis of the invalidity of the appointment of a person to an office, regard must be had to the de facto officer doctrine.
[28] Tulloh v CEO Department of Corrective Services [2018] WASC 105, [28], endorsed by the Court ofThe de facto officer doctrine has been recognised as part of the common law and applied in a variety of circumstances.[29] Where the doctrine operates it will accord legal validity to the acts and decisions of invalidly appointed public officers done in the apparently regular execution of their office. In Melrose Farms Pty Ltd v Milward, Le Miere J set out the following requirements for the operation of the doctrine:
(1)that there be a de jure office: that is, one that exists in law;[30]
(2)that the challenged actions be within the powers of that office; and
(3)the official must have the reputation of being the officer he assumes to be.[31]
[29] See Cassell v The Queen [2000] HCA 8; (2000) 201 CLR 189 [19]; Melrose Farm Pty Ltd t/as Milesaway Tours v Milward [2008] WASCA 175 [82] - [91]; Commonwealth v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104; (2008) 169 FCR 85 [87]; Kutlu v Director of Professional Services Review [2011] FCAFC 94; 197 FCR 177 [118].
[30] See Edwards (Inspector of Taxes) v Clinch [1981] 3 WLR 707.
[31] Melrose Farms Pty Ltd v Milward [83].
There was no dispute that the powers purportedly exercised by Mr Cuerden were powers that could be exercised by an investigator under pt 15 of the Act; and there was no suggestion that either the practitioner or Mr Cuerden ever believed that Mr Cuerden had not been validly nominated. The critical question is whether the office of investigator is one that exists in law.
'Investigator' is defined in s 517.
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.
Definitions are not intended to enact substantive rules of law, but to provide aid in construing the text of the substantive provisions.[32] In considering whether an office of investigator is established under the Act, it is necessary to consider the intention expressed in the substantive provisions of pt 15, in their context and bearing in mind their purpose and the mischief that they were designed to overcome.
[32] Allianz Aust v GSF Aust [2005] HCA 26; (2005) 221 CLR 568 [12], citing Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [103].
Part 16 of the Act provides for three regulatory authorities: the Legal Practice Board, the Legal Profession Complaints Committee, and the Law Complaints Officer. By s 574, the Board may employ or engage staff for the purpose of assisting the Complaints Committee or the Law Complaints Officer. Part 16 does not provided for investigators or establish an office of investigator.
In pt 15, the Act confers a range of powers that can be exercised in different circumstances by 'investigators'.
(1)Section 519 empowers an investigator carrying out a trust account investigation, trust account examination or ILP compliance audit to require a person to give access to specified documents of information. The reference to 'investigator' in s 519 is clearly confined to those in pars (c), (d) or (e) of the definition in s 517. The powers in that section may be exercised on production of evidence of the investigator's appointment under s 118(2), s 230(1), or s 235(1). Each of those sections requires an appointment in writing.
(2)Section 520 provides for complaint investigations, and authorises an investigator, by notice or summons, to require a lawyer to do specified things, to require information to be verified by oath or affirmation, and to administer an oath or affirmation. In the context of s 520, 'investigator' would include a Complaints Committee member, the Law Complaints Officer, or a person nominated by the Law Complaints Officer.
(3)Division 3, entry and search of premises, provides for powers to be exercised by an investigator conducting a trust account investigation or a complaint investigation (but not a trust account examination or ILP compliance audit). The provisions of div 3 appear to apply to investigators nominated by the Law Complaints Officer.
(4)Division 5 includes obligations on Australian lawyers to not obstruct or mislead an investigator, or fail to comply with a requirement under s 520. Section 533(3) further confers protection from liability on specified persons, including investigators.
It is not necessary, for present purposes, to determine whether any of s 118(2), s 230(1), or s 235(1) provides for the appointment of a person to an office. The question is whether the provisions of pt 15 establish or refer to an office of investigator, being a person nominated by the Law Complaints Officer, to which certain powers attach. In my opinion they do not.
First, the term is used to refer to a range of persons, including the holders of offices established under pt 16 (members of the Complaints Committee and the Law Complaints Officer), persons appointed under pt 7 and pt 9, and those nominated by the Law Complaints Officer. The definition in s 517, as relevant, should be read into each section that refers to an investigator. Some of those sections are confined to persons with a written appointment under pt 7 or pt 9.
Second, as Tottle J observed in Goldsmith v Law Complaints Officer,[33] s 517(b) does not use the language of 'appointment', used elsewhere in the Act.
[33] Goldsmith v Law Complaints Officer [2021] WASC 69 [54].
Third, the nomination of an investigator is a direction or nomination by the Law Complaints Officer of a member of the Board's staff to act as an investigator. A member of the Board's staff does not hold an office under the Act. Nomination by the Law Complaints Officer may enable a member of staff to exercise certain powers which could be exercised by a member of the Complaints Committee or the Law Complaints Officer, but enables those powers to be exercised as the nominee of the person holding the office of Law Complaints Officer, not as the holder of a separate office.
It follows, in my opinion, that the doctrine of de facto officer does not apply in this case. The Complaints Committee acted on the basis that Mr Cuerden was validly appointed when he was not, and had regard to the report and information provided by Mr Cuerden when he was not an investigator under the Act.
The referral of a 'matter': grounds 8 a1 and 11 a1
By his first ground, the practitioner contended that the Complaints Committee was required to refer specific items of alleged unsatisfactory professional conduct or professional misconduct, and the terms of the referral were insufficiently precise to constitute a matter.
The term 'matter' is not defined in either the Legal Profession Act or the State Administrative Tribunal Act. Its meaning has been frequently considered in other contexts, including in relation to federal jurisdiction and in arbitration disputes. While those authorities necessarily relate to a particular statutory or constitutional context, they demonstrate the wide connotation of the term.
In the context of pt 13 of the Legal Profession Act, the sections that are most relevant to the present question are s 424, s 425, s 426 and s 428. The practitioner referred to other sections where 'matter' or 'matters' are used. When regard is had to the context, those other sections provide little guidance to the meaning of 'matter' in s 424(1)(c) and s 428. Sections 416(5), s 416(7), s 416(8), s 417 and s 419 use the composite phrases 'the matters that formed the subject of the complaint' and 'the matter that is subject of a complaint'. Section 410(1)(c) and (e) also clearly refer to the subject of, or the matters alleged in, a complaint.
Section 424(1) provides three possible resolutions on investigation of a complaint:[34]
(1)Section 424(1)(a) and s 425 refer to the dismissal of a 'complaint' where the Complaints Committee is satisfied 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 it is in the public interest to do so.
(2)Section 426 does not use the word 'complaint' but refers to investigation into the 'conduct' of a practitioner when the conditions of that section, including the consent of the practitioner, are satisfied. Section 426(2) sets out actions available to the Complaints Committee. Section 426(3) then refers to the action taken 'in relation to a matter' and further action in relation to 'the matter'. In that context, in my opinion, 'matter' is referring back to the conduct of the practitioner that led to the Complaints Committee being satisfied as required by s 426(1)(a)(ii) to (iv).
(3)Section 428 (and s 424(1)(c)) provide for the Complaints Committee to determine that a matter should be heard by the Tribunal and for the Complaints Committee to refer 'the matter'. Matter does not refer back to something that has been concluded but to the subject matter of a proceeding to be commenced. Section 428(2) expressly provides that the Complaints Committee is not confined by the terms of any complaint or the subject matter of any investigation. The Tribunal has jurisdiction conferred on it to find whether an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct.
[34] Not affecting a complaint withdrawn under s 416.
In that context, matter, in s 424(1)(c) and s 428, is the subject matter for consideration in the Tribunal, that is, whether the conduct of the practitioner referred to the Tribunal is unsatisfactory professional conduct or professional misconduct and whether orders should be made under any of s 438 to s 441.[35]
[35] See Chang [323] where Mitchell JA said: 'In context, the 'matter' which can be referred to the Tribunal is the question of whether an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct'.
In support of his submission, the practitioner referred to the principle applied in Kirk v Industrial Court (New South Wales).[36]The decision is specific to the particular legislation. It concerned the requirements for a charge to identify the matter to be remedied, where the prosecutor sought an order remedying that matter. Further, when the 'referral' to the Tribunal is properly understood, as the Court of Appeal explained in Chang, the requirement to fully particularise the grounds of the referral applies in the application to the Tribunal.
[36] Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of (NSW) (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531.
The practitioner also submitted that the Complaints Committee could not conflate the 'matter' the subject of the initial complaint and the 'matter' the subject of its own motion investigation. It was required to separately consider what action to take in respect of each investigation. The practitioner relies on s 424(1) as obliging the Complaints Committee to consider each investigation separately. With respect, I am unable to find the requirement in the text of s 424(1)(c) when read with s 428. It is necessary only that the Complaints Committee determine that a matter (which on ordinary principles of statutory construction can include more than one matter) should be heard by the Tribunal.
The practitioner also relied on the decision of the Victorian Court of Appeal in R v Solicitors' Disciplinary Tribunal; Ex parte L.[37] The court there considered the provisions of the Legal Profession Practice Act 1958 (Vic) by which the secretary of the Law Institute had powers of investigation that could be exercised only with the written approval of a member of the Council of the Law Institute. The court described the Act as having a system of checks and balances and drafted 'in a manner which deliberately stops short of giving to the secretary unbridled powers of investigating complaints of misconduct against solicitors'.[38] By s 28(4), where, after completing his investigation and considering any explanation, the secretary was of the opinion that the solicitor 'is guilty of misconduct', he may refer the matter to a preliminary hearing of the Solicitors' Disciplinary Tribunal, refer the matter to a summary hearing of the Tribunal, or, with the approval in writing of three members of the Council, refer the matter to a full hearing of the Tribunal. The court characterised the conditions in s 28 as 'intended to protect solicitors from unwarranted and unmerited references of complaints of misconduct to a full hearing of the Tribunal by a secretary with such otherwise arbitrary powers'.[39] Their Honours said:
As we have said, and it should be emphasised, the purpose and intent of the requirement that three elected Council members should first give their approval in writing, before the secretary refers matter to a 'Full hearing', is that solicitors should be protected against the risk of having the good name called in question unfairly by having to appear before a full hearing to answer a completely unfounded or frivolous (or perhaps even vindictive) complaint of misconduct.[40]
[37] R v Solicitors' Disciplinary Tribunal; Ex parte L (a solicitor) [1988] VR 757.
[38] R v Solicitors' Disciplinary Tribunal; Ex parte L (a solicitor) (759).
[39] R v Solicitors' Disciplinary Tribunal; Ex parte L (a solicitor) (759).
[40] R v Solicitors' Disciplinary Tribunal; Ex parte L (a solicitor) (760).
It was in that context that the court found that the giving of approval in writing could only follow the members of the Council exercising judgment knowing at least what was the substance of the material which had led the secretary to form his opinion that the solicitor was guilty of misconduct, including what the alleged acts of misconduct were.
The legislation considered by the Victorian Court of Appeal is fundamentally different from that which I must construe. Critically, the power to refer under the Legal Profession Act does not have as a precondition that any person has formed the opinion that the practitioner is guilty of misconduct. To refer a matter to the Tribunal is to submit that matter to the Tribunal for its consideration and decision. The referral is not constrained by the terms of any complaint the Complaints Committee has received, or by the subject matter of any investigation, and may be exercised without investigation. Neither the text of s 428, nor the context and purpose of pt 13, disclose an intention to limit a referral to a single 'matter', or to require a degree of definition or specificity greater than that recorded in the minutes of the Complaints Committee.
As submitted by the intervenor, the minutes of the meetings contain summary descriptions of specific conduct of the practitioner. When the Legal Profession Act and the State Administrative Tribunal Act are read together, the referral is in fact the application made to the Tribunal by which the Complaints Committee commenced the disciplinary proceedings and that referral contains a detailed description of the conduct and the case the practitioner must meet. It is unrealistic to confine consideration to the minutes of the Complaints Committee's meeting, which are not intended to be a statement of reasons for the decision to refer the matter, and are made in circumstances where there is no obligation to record such reasons.[41]
[41] Legal Profession Act s 432.
Ground a1 in relation to each referral decision should be dismissed.
Breach of natural justice: ground 8a and 11a
The practitioner also challenges each referral decision on the ground that the Complaints Committed denied him procedural fairness by failing to disclose and invite submissions about the report and other material obtained by Mr Cuerden SC, before deciding whether to refer the practitioner to the Tribunal.
Importantly, the Act does not require the Complaints Committee to make any finding about whether the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, or whether it is satisfied that there is a reasonable likelihood that he will be found guilty of any 'misconduct', before it refers a matter to the Tribunal. The Complaints Committee is not required to make findings on any matter of fact. Although it may refer a matter after investigation is completed, it is not required to conduct an investigation before referring a matter to the Tribunal.
It is settled law that in construing the provisions of the Act, there is a general presumption that the Parliament intended any statutory powers that might affect the interests of an individual to be subject to procedural fairness unless the legislation shows a clear contrary intent.[42]
[42] For example, Kioa v West [1985] HCA 81; (1985) 159 CLR 550; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252.
In Minister for Immigration and Border Protection v SZSSJ the 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.[43]
[43] Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 [83].
The application of the principles of natural justice in a multi-stage decision-making process has been often considered, in various statutory contexts. The question is not whether the process is fair overall, that is, whether an affected person will have the right to be heard at some stage in the process. The critical questions, in determining whether a particular power in the multi-stage process attracts a duty of procedural fairness, are whether the exercise of the power includes the power at that stage to make adverse findings, and whether it carries with it the capacity to prejudice the rights or interests of the person affected by the exercise of the power.[44]
[44] See the review of the authorities in Saraceni v Australian Securities and Investment Commission [2013] FCAFC 42; (2013) 211 FCR 298 [101] - [102].
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.[45] The practitioner does not contend that there was any failure to consider the submissions he made.
[45] Affidavit David Williams dated 14 June 2021, DWW-4.
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.[46]
[46] Affidavit David Williams dated 14 June 2021, DWW-10.
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.[47]
[47] Affidavit David Williams dated 14 June 2021, DWW-12.
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.
Most relevant to the present application is the decision in AYHT v Medical Board SA, where the Full Court of the Supreme Court of South Australia held that, when deciding to lay a complaint about the conduct of a medical practitioner to the relevant Tribunal, the Medical Board of South Australia was not required to hear from the practitioner in question:
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.[48]
[48] AYHT v Medical Board SA [2000] SASC 136; (2000) 77 SASR 148 [15]; see also C v The Independent Commissioner Against Corruption [2020] SASCFC 57; (2020) 136 SASR 215; Turner v Northern Territory of Australia [2021] NTSC 55 [47] - [49].
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.
I would not uphold grounds 8a or 11a.
Ground 8b
The practitioner contends that the Complaints Committee impermissibly had regard to the report and other material obtained by Mr Cuerden, and thereby exercised the power to refer by reference to matters 'extraneous to any objects the legislature could have had in view'.[49]
[49] Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492, 505.
The power conferred on the Complaints Committee by s 428(1) is, like any discretionary power conferred by statute, to be exercised 'fairly and reasonably having regard to the subject matter, scope and purpose of the legislation'.[50] The discretion is otherwise unconfined, requiring only that the Complaints Committee determine the matter should be heard by the Tribunal.
[50] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 [40]; Comcare v Banerji[2019] HCA 23; (2019) 267 CLR 373 [40]; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [22], [65], [134]; Northern Territory of Australia v Sangare [2019] HCA 25; (2019) 265 CLR 164 [24].
The practitioner sought to draw a parallel between the Complaints Committee having the report of Mr Cuerden before it when it determined to refer the matter of the practitioner's conduct to the Tribunal, and the circumstances in Parker v Miller.[51] The applicant in that case was a member of the Western Australian Police Service. The Anti-Corruption Commission (ACC), adopting the findings of a Special Investigator, made findings that the applicant was guilty of a criminal offence and unfit for office. The ACC conveyed those findings to the Commissioner of Police, including a conclusion that the applicant was unfit for office and recommending that the applicant should be summarily removed. The ACC had no power to make such findings, and was prohibited by its governing legislation from publishing the statement of its belief, conclusion or finding that the applicant was unfit to hold office in circumstances where it was anticipated that disciplinary action would be taken. The Commissioner of Police imposed a suspension from office on the applicant. The only evidence as to the Commissioner's reasons was that the suspension was the consequence of the findings of the Special Investigator. As Ipp J said:
The basis of the applicant's case is not that the Commissioner acted for a wrong reason or a mistaken reason, but that he acted because of findings and opinions arrived at or adopted by a statutory body which did not have the statutory power to make or adopt them or to communicate them to the Commissioner or to anyone else. … On the evidence before this Court, the Commissioner acted solely on the Findings, that is to say, the conclusions arrived at by the Special Investigator and adopted by the ACC - not the allegations and evidence which led to those conclusions. Had the evidence been that the Commissioner acted on other material, the inquiry would have been different.[52]
[51] Parker v Miller [1998] WASCA 124. Lib No 980249.
[52] Parker v Miller 27 (Ipp J).
The court held that Parliament could never have intended to empower the Commissioner to suspend a police officer on the basis of findings given and opinions expressed unlawfully and beyond power by the ACC.
The present case is clearly distinguishable. First, the Complaints Committee did not purport to exercise any statutory power with respect to the practitioner other to than refer the matter of the practitioner's conduct to the Tribunal. Second, it was not a condition of the exercise of the Complaints Committee's power under s 428 that it receive the report of an investigator. The Complaints Committee could exercise that power without investigation, simply on the basis of a complaint having been made. Third, the Complaints Committee did not, and did not purport to, act on or adopt any finding of fact regarding the practitioner's conduct, or make any finding of fact based upon the report and materials. It did not purport to adopt or make any finding of guilt.
The practitioner also submitted that the Complaints Committee may only investigate conduct on its own initiative if it has reasonable cause to suspect that the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.[53] The practitioner did not, however, challenge the decision by the Complaints Committee in April 2018 to investigate his conduct.
[53] Legal Profession Act s 421(1).
The practitioner relied also on s 557(2)(b). Section 557 sets out the functions of the Complaints Committee, including, in s 557(2)(b), to inquire into complaints and any conduct of the part of a legal practitioner 'for the purposes of determining whether it may constitute unsatisfactory professional conduct or professional misconduct'. That, however, is only one of the Complaints Committee's functions. The Complaints Committee also has the function, under s 557(2)(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.
When s 557 is read with pt 13 div 7, it is clear that the Complaints Committee may refer a matter to the Tribunal without itself determining any question of fact or itself making a finding that could itself adversely affect the practitioner's interests. It did not have to determine whether the practitioners' conduct may constitute unsatisfactory professional conduct or professional misconduct and did not purport to do so. The Tribunal made no findings of fact about the practitioner or his conduct.
While it may be assumed that the Complaints Committee acted on what it believed to be reliable information about the practitioner's conduct, the validity of Mr Cuerden's appointment could not affect whether that information was extraneous to the objects of the Act. The Complaints Committee was entitled to inform itself on any matter in any manner it saw fit.[54]
[54] Legal Profession Act s 430(2).
The practitioner has not established that the Complaints Committee acted by reference to considerations extraneous to the purpose of the Act.
I would not uphold ground 8b.
Ground 8c
The first element of the practitioner's case on ground 8(c) is that the Complaints Committee was obliged to investigate the Complaint, and, as I understood the submission, was obliged to complete the investigation before exercising any of the powers under s 424(1).
The practitioner relied on s 421(2), and observations by the Court of Appeal in Legal Profession Complaints Committee v Rayney.[55] Section 421(2) provides that the Complaints Committee must investigate each complaint, although it is subject to s 421(3) by which, relevantly, the Complaints Committee is not required to investigate a complaint that is referred to the Tribunal. Section 428(2) expressly provides that the Complaints Committee is not required to investigate a complaint before referring a matter to the Tribunal. There is nothing in the text of the Act that would limit the power to refer under s 428 so that it could only be exercised before any investigation is commenced or after an investigation is completed. It would be an unusual result to condition the power in s 428 in that way, so that, for example, a referral could be challenged on the ground that further matters could be investigated so the investigation is not complete.
[55] Legal Profession Complaints Committee v Rayney [2017] WASCA 78; (2017) 51 WAR 142.
The observations of Martin CJ in Legal Profession Complaints Committee v Rayney do not compel a different result. His Honour commented that:
The [Act] expressly contemplates, consistently with good sense, that when the [Complaints] Committee initiates an investigation into the conduct of a practitioner, it will complete that investigation and then determine which of the alternative courses available under [the Act] should be followed.[56]
[56] Legal Profession Complaints Committee v Rayney [196] (Martin CJ).
That comment was with regard to 'the factual question of whether, in any particular case, the Complaints Committee should refer a matter to the Tribunal without investigation'.[57]
[57] Legal Profession Complaints Committee v Rayney [195] (Martin CJ).
In any event, there is no evidence that the Complaints Committee further investigated the complaint or the matters referred to the Tribunal. That is, as a matter of fact, the Complaints Committee completed its investigation.
The second element of this ground is the contention that s 424 requires the Complaints Committee to consider, in turn, each available action provided for in s 424(1). The practitioner submitted that the Complaints Committee may only refer a matter to the Tribunal after first deciding not to dismiss the complaint, and then deciding not to summarily deal with the practitioner's conduct.
The practitioner referred to the decision of the New South Wales Court of Appeal in Council of the Law Society of New South Wales v Levitt.[58] The Western Australian Act materially differs from that considered in Levitt. The Legal Profession Act 2004 (NSW), provided, in s 537(2) that the Council of the Law Society or the Legal Services Commissioner must commence proceedings in the Tribunal '[u]nless s 540 (Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions) applies 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'. Further, s 538 provided that the Council or the Commissioner may commence proceedings in the Tribunal where 'satisfied that, having regard to the nature of the subject-matter of the complaint and the reasonable likelihood that the Tribunal will find that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, action should be taken under this section'.
[58] Council of the Law Society of New South Wales v Levitt [2018] NSWCA 247.
In short, the text of the Western Australian provision does not support the construction that the decision-maker must undertake the 'compound exercise' which the Court of Appeal found was required under the New South Wales Act. The Complaints Committee is not required to predict the likely outcome in the Tribunal; it is not required to consider whether the provisions for summary conclusion should be applied.
I would not uphold ground 8c.
Ground 11b
It is not in dispute that the nomination of Mr Cuerden as an investigator was invalid. The question is whether the Complaints Committee's error about the validity of his nomination is jurisdictional.
The substance of this ground is that, in its own motion investigation, the Complaints Committee sought to investigate whether the practitioner engaged in unsatisfactory professional conduct or professional misconduct by misleading or attempting to mislead, Mr Martin Cuerden, 'an Investigator under Part 15'. The Complaints Committee's decision following the investigation was infected by that error. The referral to the Tribunal similarly reflected that error by referring conduct in the preparation and provision to Mr Cuerden of a false statutory declaration.
The practitioner submitted that if the Complaints Committee had not erred in the construction of the Act, it might have decided to not refer any of the practitioner's conduct to the Tribunal so that the whole of the referral miscarried. Alternatively, the practitioner submitted that the error infected the referral with respect to Ground 4 of the application to the Tribunal.
The contention that the Complaints Committee might have decided to not refer any of the practitioner's conduct to the Tribunal is not supported by any evidence and defies common sense. The detailed allegations against the practitioner in grounds 1, 2, 3 and 5 of the application, including an allegation of attempting to mislead the Committee, are of a nature and seriousness that they warranted referral.
The effect of referring a matter is to enliven the jurisdiction of the Tribunal to make a finding whether the practitioner engaged in unsatisfactory professional conduct or professional misconduct.[59] The matter in Ground 4 having been referred to the Tribunal, and should the Complaints Committee continue on that ground, it is within the jurisdiction of the Tribunal to determine whether that conduct is unsatisfactory professional conduct or professional misconduct where it is accepted that the nomination of Mr Cuerden is invalid.
[59] Chang [323].
I would not uphold ground 11b.
The jurisdiction of the Tribunal
It follows from my findings on the grounds of appeal that I dismiss any challenge to the jurisdiction of the Tribunal to hear and determine the application brought by the referral.
The recusal
An additional issue arose following the hearing of the application, when the practitioner applied that I recuse myself from determining the application on the basis of apprehended bias. I dismissed that application and said that I would give reasons in the main reasons in the action.
The application to recuse followed my disclosure that, prior to my appointment to the court, I had been a member of the Complaints Committee between 2007 and 2010 and for part of that time a Deputy Chair of the Complaints Committee. In the course of submissions by counsel for the intervenor, I referred to my previous membership and said, comparing the procedures of the Complaints Committee and the State Administrative Tribunal:
I was a member of the Complaints Committee while I was a senior counsel, and I was the deputy chair of the Complaints Committee for a period before my appointment to the court. And things may have changed, but what is apparent - and it's apparent from the minutes that have been presented here - is it just doesn't conduct itself in the same way as the Tribunal does. … And if you were looking at a process which is akin to a court process or a disciplinary process with people giving evidence and the like before an adjudicative body, that's not what it does. … I suppose one of the questions that might come out of these proceedings is: is that what it should do?[60]
[60] ts 105, 106.
The practitioner submitted that the present case is distinguishable from previous cases where judges of this court have been asked to recuse because of prior membership of the Complaints Committee because of the nature of the questions which are raised in the application. Those cases did not involve the construction of the provisions relating to the powers and procedures of the Complaints Committee. The practitioner submitted that this case questions whether the Complaints Committee may have engaged in conduct which was unlawful (in the sense of failing to exercise a power or discretion according to law): specifically, in failing to refer a matter to the Tribunal with sufficient specificity; in the procedures adopted; and in relation to providing procedural fairness to the practitioner when exercising the powers under s 424 and s 428.
The practitioner submitted that a reasonable fair-minded observer might take the view that the Complaints Committee might have acted the way now challenged in previous cases in which I was involved and that I might be reluctant to rule unlawful conduct similar to that in which I might have participated.
The test to be applied where an application to recuse is made is well settled:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver … or necessity …, a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.
…
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. (footnotes omitted)[61]
[61] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6], [8].
The logical connection relied upon by the practitioner is extremely remote.
I cannot remember any specific instances where I participated in a decision by the Complaints Committee to refer a matter to the Tribunal, but it is likely there were some.
If the Complaints Committee then had a practice of receiving reports from nominated investigators, I have no recollection of it occurring during the period of my membership. And I am quite confident that none of the matters argued on behalf of the practitioner in this application were ever raised during my time as a member of the Complaints Committee.
The central difficulty with the practitioner's submission arises, not from those factual questions, but from the nature of the issues now before the court.
The questions raised in this application, which might have a connection to the practice of the Complaints Committee while I was a member, are issues of construction: first, whether the Complaints Committee can refer a matter that does not comprise a specific item of 'misconduct'; and second, whether the Complaints Committee must conduct a 'stepped approach' under s 424 before referring a matter to the Tribunal.
The questions are questions of law. The position is substantially the same as when the court is asked to determine the correct construction of a statute which it has previously applied, but where the question of construction has not previously been raised. I cannot see how my previous membership of the Complaints Committee might give rise to the apprehension that I might not bring an impartial mind to a question of that kind.
Conclusion
The invalidity of Mr Cuerden's appointment was not contested, and the general question of the power of the Law Complaints Officer to appoint an investigator was determined in Goldsmith v Law Complaints Officer. There is no apparent utility in this court making a declaration as to a matter that was not disputed.
The practitioner has failed on those grounds on which he relied for the remedies of certiorari, and prohibition or injunction.
I would, accordingly, dismiss the application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TB
Associate to the Honourable Justice Allanson
26 JULY 2022
Appeal in Tulloh v CEO Department of Corrective Services [2020] WASCA 10, [38], [134];
Wintawari Guruma Aboriginal Corporation RNTBC v The Hon Benjamin Sana Wyatt [2019] WASC
33, [91] - [92]; Sanders v City of South Perth [2019] WASC 226, [281].
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