Rayney v Legal Profession Complaints Committee - [2018] WASCA 75

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   RAYNEY -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2018] WASCA 75
CORAM:   MARTIN CJ
MURPHY JA

HEARD:   11 MAY 2018
DELIVERED          :   11 MAY 2018
PUBLISHED           :   15 MAY 2018
FILE NO/S:   CACV 46 of 2018
BETWEEN:   LLOYD PATRICK RAYNEY
Appellant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
Respondent

Catchwords:

Application for an order staying the suspension of a practising certificate - Application for a suppression order on the publication of reasons, findings and orders - Protection of the public interest - Maintenance of the reputation and standards of the legal profession - Principles of open justice

Legislation:

Surveillance Devices Act 1998 (WA)

Result:

Application denied

Category: B

Representation:

Counsel:

Appellant	:	Mr ML Bennett
Respondent	:	Mr TJ Porter

Solicitors:

Appellant	:	Bennett + Co
Respondent	:	Legal Profession Complaints Committee

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

Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5
Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S)

MARTIN CJ:

(This decision was delivered extemporaneously on 11 May 2018 and has been edited from the transcript.)

Mr Lloyd Patrick Rayney has appealed to the Court of Appeal against two decisions of the State Administrative Tribunal. The first is a decision that the Tribunal made on 25 January 2018 to the effect that Mr Rayney, a legal practitioner, had engaged in professional misconduct.[1]
[1] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5.
The conduct found by the Tribunal to give rise to that conclusion was as follows:
(a)between April and August 2007 Mr Rayney surreptitiously recorded conversations between himself and his then wife, the late Corryn Rayney, without her knowledge and consent in contravention of s 5(1) of the Surveillance Devices Act 1998 (WA);
(b)in February 2009 Mr Rayney swore an affidavit for use in proceedings in the Magistrates Court of Western Australia and which was, in fact, used in those proceedings which he knew to be false with the intention of misleading that court; and
(c)in November 2009 Mr Rayney gave evidence in the Magistrates Court of Western Australia which he knew to be false with the intention of misleading that court.
The second decision of the Tribunal from which Mr Rayney appeals is a decision made on 18 April 2018 in relation to the penalties appropriately imposed in respect of the professional misconduct found by the Tribunal.[2] In that decision, the Tribunal publicly reprimanded Mr Rayney in relation to his professional misconduct in recording conversations between himself and his wife in contravention of the Surveillance Devices Act 1998 (WA).
[2] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S).
In relation to the other two matters of misconduct, the Tribunal determined to make and transmit a report to the Full Court of the Supreme Court with a recommendation that Mr Rayney's name be removed from the roll of practitioners. The Tribunal further ordered that Mr Rayney's local practising certificate be suspended with effect from 21 days from the later of the date of that order or completion of the criminal trial in the State of Western Australia v Le & Ors, which is District Court of Western Australia matter IND 293 of 2016, until the determination of the Supreme Court on the reference from the Tribunal.
The Tribunal further ordered that with effect from 14 days from the date of the order a condition should be placed upon Mr Rayney's local practising certificate to the effect that his entitlement to practise was restricted to appearing in or advising on the criminal trial relating to Mr Le. As 14 days has expired from the making of those orders, Mr Rayney is currently only permitted to practise in relation to matter IND 293 of 2016.
Mr Rayney has applied for orders in each appeal to the following effect:
(a) the orders of the Tribunal relating to his suspension from practice be varied to enable him to:
(i)represent Mr Le in an application for a conditional or permanent stay of the criminal proceedings brought against him in matter IND 293 of 2016;
(ii)represent Mr Le in an application to vacate the trial in other criminal proceedings brought against Mr Le, being the matters the subject of IND 294 of 2016 in the District Court of Western Australia, and for orders seeking a conditional or permanent stay of those proceedings; and
(iii)to represent Mr Jeff Ralston at the trial of criminal proceedings VRO 57 of 2016 in the District Court of Western Australia, which are listed to commence on 11 June 2018 for a period of four days.
Mr Rayney also seeks:
(b)an order prohibiting publication of the reasons and orders of the Tribunal in the matters to which I have referred and the oral reasons of the Tribunal delivered on 4 May 2018 in relation to an application for the continuation of suppression orders made to the Tribunal from that day until the determination of his appeals; and
(c)an order for consolidation of the two appeals against the decision of the Tribunal.
It is convenient to deal first with the application for consolidation as there is no opposition to it and consolidation is clearly in the interests of justice. For those reasons, there should be an order for consolidation of the two appeals in the terms sought.
It is necessary to set the background for that aspect of Mr Rayney's application which relates to variation of the orders made by the Tribunal suspending his entitlement to practise pending determination of the reference from the Tribunal to the Full Court of the Supreme Court.
At the time the Tribunal delivered its reasons for concluding that Mr Rayney was guilty of professional conduct, Mr Rayney was appearing on behalf of Mr Michael Le in proceedings in the District Court of Western Australia, being matter IND 293 of 2016. The trial of those proceedings had commenced many months earlier. They were continuing when the Tribunal conducted its hearing in relation to the penalties appropriately imposed in respect of Mr Rayney's misconduct and at the time the Tribunal delivered its decision with respect to penalty on 18 April 2018.
Cognisant of the likelihood that the immediate suspension of Mr Rayney or publication of the Tribunal's finding that Mr Rayney had engaged in professional misconduct would result in the trial in which he was appearing being aborted, the Tribunal made the orders to which I've referred, which had the effect of enabling Mr Rayney to continue to appear in that trial until its conclusion and to act for Mr Le in relation to the issues in that trial for 21 days thereafter.
Mr Rayney was otherwise given 14 days from the date of the Tribunal's order to cease acting on all other matters. That period has now expired. The Tribunal also made an order suppressing publication of the Tribunal's reasons and findings to be discharged automatically as soon as the criminal trial in which Mr Rayney was engaged concluded, with the consequence that thereafter the Tribunal's findings, reasons and orders would all be published.
On 7 May 2018, in the District Court of Western Australia, Judge Scott terminated the trial to which I've referred and discharged the jury. Publication of the findings, reasons and orders of the Tribunal was, however, precluded by an interim suppression order made by the Tribunal on 4 May 2018. That interim order expires at 4 pm today, which is 11 May 2018. As a result of the Tribunal's orders, Mr Rayney is entitled to continue to act for Mr Le in relation to the matters in IND 293 of 2016 until 28 May 2018, but not otherwise.
Before dealing with the specific aspects of Mr Rayney's application, there are number of factors which count generally against the application. The Tribunal's findings that Mr Rayney swore an affidavit which he knew to be false and gave evidence which he knew to be false for the purpose of misleading a court are findings of extremely serious misconduct.
Further, for the purpose of imposing penalty, the Tribunal found that Mr Rayney also knowingly gave false evidence on the same subject in October 2015, in his evidence to the Tribunal on a review of a decision to cancel his practising certificate; in March 2017, in his evidence in the trial in the Supreme Court of Mr Rayney's claim for damages for defamation; and in December 2017, on the hearing of the proceedings before the Tribunal.
The Tribunal, therefore, concluded that Mr Rayney's misconduct could not be treated as isolated, but was part of a sustained course of dishonest conduct. For the purposes of penalty, the Tribunal concluded that there is a need to protect the public against further misconduct by Mr Rayney. The Tribunal also held that there is a risk that there are circumstances in which Mr Rayney's honesty and integrity cannot be relied upon.[3]
[3] [2018] WASAT 5 (S) [70], [126], [128].
The Tribunal held that Mr Rayney had placed in doubt the ability of the public and fellow practitioners to place reliance upon his word and that it could not be satisfied as to his worthiness or reliability for the future. The Tribunal further found that Mr Rayney has no insight into his wrongdoing, nor any remorse for it. The Tribunal generally concluded that Mr Rayney lacks the honesty and candour that are essential attributes for a legal practitioner and was not, therefore, a fit and proper person to practise law.[4]
[4] [2018] WASAT 5 (S) [93], [101], [127].
The jurisdiction of the court and the Tribunal with respect to the regulation of the legal profession is not to be exercised for punitive purposes, rather it is to be exercised for the protection of the public and the maintenance of the reputation and standards of the legal profession. Given that the Tribunal has made findings of this severity, the protection of the public interest and the maintenance of the reputation and standards of the legal profession are significant considerations which count against the grant of any continuation of a stay upon the suspension of Mr Rayney's practising certificate or the suppression of publication of the reasons, findings and orders of the Tribunal. The orders sought by Mr Rayney would expose the public and the courts to the risks found by the Tribunal and diminish the reputation and standards of the legal profession.
I also take into account the fact that the Tribunal was in a better position than this court to balance the competing interests between the protection of the public and the maintenance of the standards of the profession on the one hand and the interests of Mr Rayney's clients on the other, having heard the evidence, including that of Mr Rayney, and having made detailed findings with respect to his conduct and character, I would hesitate before interfering with the balance struck by the Tribunal in relation to those matters. As I will note later, in this context, it is of some significance that Mr Rayney did not inform the Tribunal of his instructions to appear for Mr Le on matter IND 294 of 2016 nor of his instructions to appear for Mr Ralston during the penalty hearing, with the consequence that the Tribunal was given no opportunity to consider those matters.
Of course, I do not overlook the fact that by these appeals, Mr Rayney challenges the findings of the Tribunal which I have set out. However, the seriousness of those findings is such that the potential risks which might attend a stay of the suspension of Mr Rayney's right to practise and the risk to the maintenance of the reputation and standards of the legal profession which might flow from a continuation of the suppression of the Tribunal's reasons and findings could only be justified if it was readily apparent that the appeal had very strong prospects of success. No submission to that effect has been made on behalf of Mr Rayney.
I turn now to address the question of whether orders should be made to enable Mr Rayney to continue to represent Mr Le in matter IND 293 of 2016 beyond 28 May 2018. As I have noted, the trial of those charges was aborted on 7 May 2018. There are multiple accused in that trial. Each has applied for a conditional and/or permanent stay and that application has been listed to be heard by Judge Scott on 19 June 2018.
However, there is no evidence that, nor has it been suggested that the resolution of that application is a matter of great urgency which requires that the matter be heard and determined on the date currently listed. This date was apparently fixed by the judge without knowledge of Mr Rayney's difficulties. In those circumstances, there is no reason to suppose that the date for the hearing of those applications could not be altered to accommodate the engagement of alternative counsel for Mr Le if required.
On behalf of Mr Rayney, it is submitted that it would be unduly prejudicial and unfair to Mr Le to require him to engage new counsel to appear on the application for a stay. In support of that submission, it is asserted that Mr Rayney's detailed experience in the course of the first trial is indispensable to the proper presentation of argument on behalf of Mr Le in support of the application for a stay. It is further submitted that Mr Le lacks the financial resources to engage new counsel to represent him on the stay application given the amount of preparation which would be required by such new counsel.
I do not accept these submissions. The application for a stay will be heard by the trial judge, who has, of course, detailed knowledge and experience of the entire course taken during the trial. Similar applications will be made on behalf of the other accused by counsel who are present throughout the entire trial. It is inconceivable that the application for a stay will descend to a minute or detailed analysis of the evidence. Rather, the application for the stay will, no doubt, be based upon what is said to be the oppressive conduct of the proceedings, based on their length, and the failure of the prosecution to present their case efficiently and to make timely disclosure.
Instructions to any new counsel engaged to represent Mr Le on the stay application with respect to those matters could be provided within a relatively narrow compass, especially if assisted by a succinct summary prepared by Mr Rayney, who is entitled to continue to act for Mr Le in relation to those matters for another 17 days. For the same reason, I do not accept that the additional cost of engaging new counsel to appear on the stay application is of such a magnitude as to preclude that course.
Further, and in any event, the evidence with respect to Mr Le's financial circumstances and the likely cost of engaging alternative counsel is cast in general terms and is entirely lacking in detail or specificity. Evidence of that character is insufficient to establish the likelihood of the prejudice to Mr Le which is said to underpin this aspect of Mr Rayney's application. In any event, I note that if Mr Le lacks the financial capacity to obtain legal representation, there is no reason to suppose that he would not be granted legal aid for the purposes of the application.
Similar considerations apply to the aspect of Mr Rayney's application seeking permission to continue to represent Mr Le in proceedings in matter IND 294 of 2016. In particular, I do not accept that the application to vacate the trial and for a conditional or permanent stay of those proceedings will require a minute and detailed knowledge of each and every aspect of the case.
Further, I do not accept that there is evidence of sufficient detail and particularity to sustain the conclusion that Mr Le lacks the financial capacity to engage alternative counsel or that if he does lack capacity, legal aid would not be available to him. In this context, I note that Mr Rayney does not appear to have been briefed to appear as counsel at trial if those matters proceed to trial.
There are other factors specific to IND 294 of 2016 which count against this aspect of Mr Rayney's application. First, no date has been set for the hearing of the application to vacate the trial date in August or for a conditional or permanent stay of those proceedings. The hearing for directions setting a timetable for those proceedings is to be held next week. Accordingly, there is no reason to suppose that the timetable could not be set taking into account Mr Le's need to engage alternative counsel.
Secondly, and perhaps more significantly, the Tribunal's reasons for concluding that Mr Rayney was guilty of professional misconduct were delivered to him on 25 January 2018. In the course of those reasons, the Tribunal expressly found that Mr Rayney's conduct would justify a finding that he is not a fit and proper person to engage in legal practice and would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute.
Given the severity of the findings of misconduct made and those specific findings, Mr Rayney must have been on notice no later than 25 January 2018 that there was every prospect that the Tribunal would make a report to the Full Court of the Supreme Court recommending that his name be removed from the roll of practitioners and that he would be suspended from practice in the meantime. In all the circumstances, the most lenient penalty that Mr Rayney might have anticipated in light of those findings was a period of suspension, which was, in fact, the penalty he submitted should be imposed at the penalty hearing.
Any doubts which Mr Rayney might have had in relation to his future prospects following delivery of the Tribunal's reasons on 25 January 2018 were removed on 9 February 2018 when the Legal Profession Complaints Committee filed and served submissions with respect to penalty in which it specifically sought orders from the Tribunal referring Mr Rayney to the Supreme Court of Western Australia with a recommendation that his name be removed from the Roll of Practitioners and that he be suspended from practice in the meantime.
The trial of the charges in IND 294 of 2016 was listed to commence on 15 August 2018. In light of the Tribunal's findings and the position adopted by the Legal Profession Complaints Committee, Mr Rayney should have taken immediate steps to return the brief in that matter and to advise Mr Le to engage other counsel. No satisfactory reason has been provided for his failure to take this obvious course. In those circumstances, he cannot rely upon his own failure to take that appropriate action as a basis for a stay of the orders made by the Tribunal.
Further, it is of some significance that Mr Rayney made no mention of his obligations to Mr Le in relation to matter IND 294 of 2016 at the penalty hearing before the Tribunal. As a result, the Tribunal was deprived of the opportunity of considering whether orders should be made accommodating Mr Rayney's professional obligations in that regard. The Tribunal, which heard the proceedings against Mr Rayney was best placed to evaluate those issues. The fact that Mr Rayney chose not to put those matters before the Tribunal and, rather, to raise them only after the Tribunal had handed down its decision with respect to penalty tells strongly against this aspect of his application.
Similar considerations compel a rejection of the aspect of Mr Rayney's application relating to his desire to continue to represent Mr Ralston at the trial of the charges against him in June. As that trial is one month away and is not expected to be a long trial, it should not be inferred or concluded that alternative counsel could not be engaged nor should it be inferred that if despite diligent effort Mr Ralston and his solicitor are unable to engage alternative counsel able to appear at that trial, an adjournment of the trail would be refused given that, in such a circumstance, Mr Ralston's lack of representation would not be attributable to any fault or neglect on his part.

Although there are general assertions in the evidence relating to Mr Ralston's lack of financial capacity, those assertions lack the specificity and detail necessary to sustain a conclusion that Mr Ralston would be unable to engage alternative counsel or that, if he were unable to do so, legal aid would not be available to him. The general considerations with respect to the severity of the findings made against Mr Rayney and the consequent need to avoid risk to the interest of the public and to maintain the reputation, integrity and standing of the legal profession are equally applicable to this aspect of Mr Rayney's application. Mr Ralston's wish to be represented by Mr Rayney must be viewed in that context and is a consideration of a second order compared to these broader interests.
Further, the fact that Mr Rayney was aware by no later than early February 2018 of the significant prospect that he would be unable to represent Mr Ralston tells very strongly against the grant of this aspect of his application. Clearly, Mr Rayney should have returned the brief in February 2018 and informed Mr Ralston that he would be unable to represent him at trial. Had Mr Rayney taken that course, there would have been more than ample time for Mr Ralston to obtain alternative counsel. The fact that Mr Rayney did not take that obvious and appropriate course tells strongly against this aspect of his application.
Further, Mr Rayney's failure to inform the Tribunal of his professional commitment to Mr Ralston at the time of the penalty hearing is another reason why this aspect of his application should be refused.
For these reasons, I would refuse that aspect of Mr Rayney's application in which he seeks orders permitting him to continue to practise in the respects he has identified.
The application for an order suppressing publication of the Tribunal's findings, reasons and orders until the determination of Mr Rayney's appeals is made on two alternative bases. The first basis for the application is to enable Mr Rayney to continue to represent Mr Ralston whose interests would be prejudiced if the findings against Mr Rayney were made public. As I have concluded that Mr Rayney should not be permitted to continue to represent Mr Ralston, that basis for his application falls away.
The second basis for the application for a suppression order is the assertion that Mr Rayney's capacity to rebuild his practice will be impeded by the damage to his standing and reputation, which would follow from publication of the reasons, findings and orders of the Tribunal.
It is perhaps conceivable that a suppression order might be made for such a reason in a case in which an applicant establishes with a very high degree of confidence that the appeal would almost inevitably succeed. However, it is well established that in all but the most exceptional case damage to reputation and standing provides no basis for departing from the open justice principle, a principle which is fundamental to the administration of justice. This is not such an exceptional case. There is nothing exceptional or unusual about Mr Rayney's circumstances which could possibly lead to or even support the proposition that damage to his reputation and standing provides a sufficient basis for the suppression of the reasons, findings and orders of the Tribunal contrary to the fundamental principle of open justice.
For these reasons, the application should be dismissed. It is my tentative view that the costs of the application should be in the cause of the consolidated appeals.

MURPHY JA: I agree with the Chief Justice.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MV
ASSOCIATE TO THE HONOURABLE CHIEF JUSTICE MARTIN
15 MAY 2018