Re Rules of the Supreme Court 1971 (WA) - [2023] WASC 477

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE RULES OF THE SUPREME COURT 1971 (WA); EX PARTE KHOSA [2023] WASC 477
CORAM:   WHITBY J
HEARD:   1 NOVEMBER 2023
DELIVERED          :   15 DECEMBER 2023
FILE NO/S:   CIV 1594 of 2023
MATTER: An application for leave pursuant to O 67 r 5(1) of the Rules of the Supreme Court 1971 (WA) to file and issue a writ of summons

EX PARTE
MANRAJ KHOSA
First Applicant
SHARIN RUBA
Second Applicant

Catchwords:

Practice and procedure - Leave to issue writ - Writ refused by Registrar - Whether proposed claim frivolous or abuse of process - Turns on own facts

Legislation:

Legal Profession Act 2008 (WA)
Legal Profession Uniform Law Application Act 2022 (WA)
Legal Profession Uniform Law (WA)
Rules of the Supreme Court 1971 (WA)
State Administrative Tribunal Act2004 (WA)

Result:

Leave refused

Category: B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person

Solicitors:

First Applicant	:	In Person
Second Applicant	:	In Person

Cases referred to in decision:

A v The State of New South Wales [2007] HCA 10; (2007) 230 CLR 500
Batistatos v Roads & Traffic Authority of New South Wales [2006] HCA 27
Bride v Shire of Katanning [2008] WASC 131
Byrne v Australian Airlines (1995) 185 CLR 410
Donnellan v The Public Trustee [2007] WASC 213
Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Jane Doe v Fairfax Media Publications [2018] NSWSC 1996
Johnson v Gore Wood & Co [2002] 2 AC 1
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Le v Plummer [2023] WASCA 178
Legal Profession Complaints Committee and Khosa [2015] WASAT 107
Legal Profession Complaints Committee and Khosa [2019] WASAT 143
Legal Profession Complaints Committee and Khosa [2021] WASAT 64
Legal Services and Complaints Committee and Khosa [2023] WASAT 90
Middleton v The State of Western Australia (1992) 8 WAR 256
Papamihail v Legal Profession Complaints Committee [2023] WASCA 183
Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258(S)
Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213
Re Rules of the Supreme Court 1971 (WA); Ex Parte Ruba [2019] WASC 92
Re Rules of the Supreme Court 1971 (WA); Ex Parte Ruba [2020] WASC 237
Reichel v Magrath (1889) 14 App Cas 665
Seiffert v The Prisoners Review Board [2023] WASCA 15
Sheraz Proprietary Limited v Vegas Enterprises Proprietary Limited [2015] WASCA 4
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378

WHITBY J:

On 8 February 2021, the applicants attempted to file a writ of summons in which they were named the first and second plaintiffs and the Legal Practice Board of Western Australia (LPBWA) was the named defendant.
A registrar refused to accept the writ for filing without the leave of a judge first being obtained pursuant to O 67 r 5(1) of the Rules of the Supreme Court 1971 (WA) (RSC), as it appeared to be an abuse of the process of the court or a frivolous or vexatious proceeding.
On 2 June 2023, the applicants filed an ex-parte motion seeking leave to file and serve a proposed writ, by which they seek to institute proceedings in this court against the LPBWA (application). The LPBWA is not aware of the application.
The indorsement of claim in the proposed writ is as follows:
INDORSEMENT OF CLAIM
The plaintiffs' claim for loss and damages suffered as a direct consequence of the misconduct of the members, delegates and staff of the Legal Practice Board and its Committees as established by the Legal Profession Act 2008 in that the members, delegates and staff of the Legal Practice Board and its Committees have acted in breach of their statutory duties, in abuse of their powers and have engaged in conduct that breached the professional and ethical standards of the public sector, the legal profession and contrary to the good administration of justice.
The applicants filed the following affidavits in support of the application:
(a)affidavit of Manraj Singh Khosa sworn 2 June 2023 (First Khosa Affidavit);
(b)affidavit of Manraj Singh Khosa sworn 2 October 2023 (Second Khoas Affidavit);
(c)affidavit of Manraj Singh Khosa sworn 2 October 2023 attaching proposed writ of summons (Third Khosa Affidavit);
(d)affidavit of Manraj Singh Khosa sworn 31 October 2023 (Fourth Khosa Affidavit);[1]
(e)affidavit of Sharin Kaur Ruba sworn 2 October 2023 (Ruba Affidavit).
[1] The first applicant has referred to this as the 'Third' Affidavit.
The first and second applicants, whom I will refer to as Mr Khosa and Ms Ruba, are both self-represented litigants. Both appeared at the hearing and each made oral submissions, either on their own behalf or on behalf of the other. I have considered each of their submissions in the context of the application made by both.
I make the following preliminary observations. Firstly, as I will detail later, this is the third occasion on which the second applicant has sought leave to file a writ of summons in relation to the same subject matter. I have had the benefit of reading the decisions to refuse leave to the second applicant on two prior occasions.[2] Secondly, although Mr Khosa is self-represented, he was previously a practising lawyer in Western Australia. This means that he is not afforded the same flexibility that would ordinarily be afforded to a self-represented litigant, in this case that is Ms Ruba, who did not have formal legal training.[3] Having said that, I have nonetheless approached the application for leave with some flexibility to assess whether the proposed indorsement of claim, even if it requires amendment, discloses a cause of action.[4]
[2] Re Rules of the Supreme Court 1971 (WA); Ex Parte Ruba [2019] WASC 92 (2019 Ruba Decision); Re Rules of the Supreme Court 1971 (WA); Ex Parte Ruba [2020] WASC 237 (2020 Ruba Decision).
[3]Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 [3] (Ex Parte Gates).
[4] Ex Parte Gates [3].
For the reasons that follow, I am of the view that Mr Khosa's and Ms Ruba's application for leave to file and serve the proposed writ of summons is an abuse of process, frivolous and/or vexatious and should be refused.
In these reasons for decision, I deal with the following matters:
(1)procedural background;
(2)factual background;
(3)legal principles;
(4)applicants' alleged causes of action;
(5)disposition: An evaluation of whether the proposed writ of summons would constitute an abuse of process or would be a frivolous or vexatious proceeding; and
(6)whether the proposed proceedings constitute a collateral attack on the decisions of the State Administrative Tribunal (Tribunal).

Procedural background

As I have mentioned, Ms Ruba has sought leave to file a proposed writ on two previous occasions. In mid-July 2018, Ms Ruba sought to file a writ of summons which a registrar refused to accept for filing pursuant to O 67 r 5 of the RSC. Shortly thereafter, Ms Ruba again sought to file a writ of summons, in terms which had been amended. This proposed amended writ of summons was also not accepted for filing by a registrar pursuant to O 67 r 5 of the RSC.
On 12 December 2018, Ms Ruba sought leave of a judge to file and serve a proposed writ pursuant to O 67 r 5 of the RSC. The application was heard by Acting Strk J (as her Honour then was) and leave to file the proposed writ of summons was refused.[5] On that occasion, the proposed defendant was the State of Western Australia, although the proposed writ raised detailed allegations against the LPBWA and its Committees.[6] The indorsement of claim on the proposed writ of summons on that occasion was expressed in the following terms:
The plaintiff's claim is for loss and damages suffered as a result of the State of Western Australia failing to regulate its statutory body the Legal Practice Board and its Committees as established by the Legal Profession Act 2008 in that the Legal Practice Board and its Committees have been allowed to act in breach in of its statutory duties, in abuse of its powers and have engaged in conduct that breached the professional and ethical standards of the public sector and contrary to the good administration of justice when the Legal Practice Board and its Committees dealt with those entities and persons associated to the Plaintiff and on whom the Plaintiff depended on.
[5] 2019RubaDecision.
[6] 2019 Ruba Decision [8].
On 5 September 2019, Ms Ruba filed an ex-parte motion seeking leave of a judge to file and serve a proposed writ pursuant to O 67 r 5 of the RSC. The application was heard by Hill J on 28 November 2019 and leave to file the proposed writ of summons was refused.[7] The indorsement of claim in the proposed writ on that occasion was in the following terms:
The plaintiff's claim is for loss and damages suffered as a result of irreparable harm suffered as a direct consequence of the conduct of the Legal Practice Board and its Committees as established by the Legal Profession Act 2008 in that the Legal Practice Board and its Committees have acted in breach of its statutory duties, in abuse of its powers and have engaged in conduct that breached the professional and ethical standards of the public sector, the legal profession and contrary to the good administration of justice when the Legal Practice Board and its Committees dealt with those entities and persons associated to the plaintiff and on whom the plaintiff depended financially and personally.
[7] 2020RubaDecision.
In this application, both Mr Khosa and Ms Ruba seek leave to file the proposed writ of summons, as opposed to only Ms Ruba.

Factual background

The First Khosa affidavit comprises 533 paragraphs and 264 pages and deposes to matters dating back to May 2012, the time when Mr Khosa and Ms Ruba returned to live in Perth from Singapore. The Second Khosa Affidavit is 34 pages and the Third Khosa Affidavit attaches the proposed writ of summons. The Ruba Affidavit is 108 pages and annexes, inter alia, two of the second applicant's affidavits filed in CIV 2580 of 2019 - the matter the subject of the 2020 Ruba Decision.
The affidavits contain extensive and serious allegations of misconduct, and unfair treatment of the applicants, by the LPBWA, its committees, including the Legal Profession Complaints Committee of Western Australia (LPCC) and a number of individuals. I do not name the individuals in these reasons because, as it is an ex-parte application, those individuals are not named as proposed defendants and they have not appeared at the hearing.
There have been two set of proceedings instituted by the LPCC against Mr Khosa in the Tribunal (the First SAT Proceedings and the Second SAT Proceedings respectively).
The background to the applicants' allegations against the LPBWA arising from the First SAT Proceedings was summarised in the 2019 Ruba Decision:[8]
[8] 2019 Ruba Decision [10] - [15]; See also Legal Profession Complaints Committee and Khosa [2015] WASAT 107 (2015 SAT Decision).
Mr Khosa was admitted to practice law in Western Australia in 2000 and was later employed as a director of two legal practices. The [second] applicant says that she was the consultant practice manager to the law practice named Angove Law, and was later employed as practice manager by the practice named Law on Newcastle.
Proceedings were commenced by the Legal Profession Complaints Committee (LPCC) against Mr Khosa in the State Administrative Tribunal. In those proceedings it was alleged that Mr Khosa, on or about 1 March 2013, engaged in professional misconduct pursuant to the Legal Profession Act 2008 (WA) s 403 and s 438. The allegations in those proceedings related to a personal undertaking made by Mr Khosa to a fellow legal practitioner in circumstances where, it was alleged, that Mr Khosa knowingly breached that undertaking.
The Tribunal found that on or about 1 March 2013, Mr Khosa engaged in professional misconduct pursuant to the Legal Profession Act, in that he released an executed withdrawal of caveat form to Silver Force Pty Ltd and/or Ms Stephanie Douglas (clients) for lodgment at Landgate in circumstances where:
(i)Mr Khosa undertook to Mr Gough and Minter Ellison that the executed withdrawal of caveat form would not be lodged at Landgate and further, that he would not (it being necessarily implicit) release the caveat withdrawal to the clients until such time as the issue of costs relating to the claim by Roderick Gordon Murchison (the first plaintiff) in District Court proceedings No. CIV 2122 of 2011 relating to a loan of $150,000 by the first plaintiff to the clients had been resolved;
(ii)The issue of costs relating to the first plaintiff's claim had not been resolved as of 1 March 2013, when Mr Khosa released the caveat withdrawal to his clients for the purpose of the caveat withdrawal being lodged with Landgate; and
(iii)Mr Khosa released the caveat withdrawal to the clients for lodgment at Landgate.
The Tribunal found that Mr Khosa released the caveat withdrawal to the clients for lodgment at Landgate in the knowledge that it was in breach of the undertaking referred to above.
On 23 September 2015 the State Administrative Tribunal found Mr Khosa guilty of professional misconduct and subsequently suspended Mr Khosa from legal practice for a period of six months. Both the finding of guilt and the penalty imposed were appealed to the Court of Appeal.
The plurality of the Court of Appeal dismissed the appeal against the primary finding of guilt made by the Tribunal. The plurality went on to find that the imposition of a six month period of suspension demonstrated an implied error on behalf of the Tribunal as the decision was unreasonable or plainly unjust. A substituted penalty of two months suspension was imposed. (citations omitted)
In the Second SAT Proceedings, the Legal Services and Complaints Committee (formerly known as the LPCC) (LSCC) alleged that Mr Khosa had engaged in professional misconduct as a result of an alleged failure to pay counsel's fees and his associated conduct, including allegations that he made false and/or misleading representations and his alleged failure to appropriately respond to the LPCC's requests for information and documents as part of its investigations.
On 5 October 2023, the Tribunal found Mr Khosa guilty of professional misconduct.[9] On 26 October 2023, the tribunal made orders that Mr Khosa had engaged in professional misconduct in that:
(a)he had failed to pay 5 invoices issued by counsel between October 2013 and February 2014 and in preference to paying those outstanding fees from funds received from his client, he had applied those funds in payment of invoices issued by his own legal practice;
(b)he had represented to counsel that a part payment of counsel's invoice was only because of a daily limit of funds and that full payment would be made sometime during the following week, which representation was to his knowledge false and misleading as he knew that there were insufficient client funds to pay that invoice;
(c)he represented to the LPBWA, in a meeting in June 2015, that his legal practice could pay its current debts, which he knew to be false and misleading;
(d)he attempted to avoid the liabilities of his legal practice by incorporating a new legal practice; and
(e)between September 2015 and September 2016, and after September 2018, he failed to respond to correspondence from the LPCC requesting information and documents.
[9] Legal Services and Complaints Committee and Khosa [2023] WASAT 90 (2023 SAT Decision)
A hearing to determine the appropriate penalty for Mr Khosa is listed before the Tribunal on 15 December 2023.

Mr Khosa deposes that his and Ms Ruba's allegations against the LPBWA and others span over 10 years and have caused them significant loss:[10]
Ruba and I have been dealing with the LPB and the LPCC since 2013 over the last years and this has caused loss and damage including but not limited to my losing my family home, two of my practices, reputational damage, financial loss, an adverse impact on my health and that of my wife and emotional distress and the loss of our future security.
I have set out the main events in this affidavit and there are many more instances spanning the 10 years of my interaction with the LPCC.
[10] First Khosa Affidavit [532] - [533].

Legal principles

Order 67 r 5 of the RSC provides:
Abuse of process etc., procedure in case of
(1)If any writ, process, motion, application or commission, which is presented for filing, issue or sealing appears to the registrar to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the registrar shall refuse to file or issue such writ, process, motion, application or commission without the leave of a judge or a master first had and obtained by the party seeking to file or issue it.
(2)In the case of a motion or an application ordinarily returnable before a master in chambers, an application for leave to file or issue such motion or application shall be made to a master in chambers.
(3)In all other cases, an application or commission shall be made to a judge in chambers.
(4)Applications for leave under subrules (2) and (3) shall be made ex parte and shall be supported by affidavit.
On the proper construction of O 67 r 5, the court should refuse leave to file a writ of summons where it is satisfied that the writ of summons would constitute an abuse of process or would be a frivolous or vexatious proceeding.[11]
[11] Ex Parte Gates [20].
Therefore, the issue to be determined in this application is whether the proposed writ of summons is an abuse of process or a frivolous or a vexatious proceeding.
The concepts of abuse of process and frivolous or vexatious are often used interchangeably as there are common principles that apply to both.
An abuse of process will occur where the use of the court's processes is held to be unjustifiably oppressive to a party or where it would bring the administration of justice in disrepute.[12] It is well established that the categories of cases which will rise to an abuse of process are not closed.[13]
[12] Batistatos v Roads & Traffic Authority of New South Wales [2006] HCA 27 [15] (Batistatos).
[13] Batistatos [9].
If proceedings are doomed to fail or are clearly unsustainable then they will give rise to an abuse of process.[14]
[14] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393; Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258(S) [23].
A court may invoke the principles of abuse of process to prevent a party from relitigating an issue which was substantively determined in earlier proceedings.[15]
[15] Sheraz Proprietary Limited v Vegas Enterprises Proprietary Limited [2015] WASCA 4 [11].
In abuse of process cases, one or more of the following three characteristics are likely to be present:
(1)the invocation of the court's processes for an illegitimate or collateral purpose;
(2)the court's procedures being used in a manner that is unjustifiably oppressive to a party; or
(3)the court's procedures being used in a manner which brings the administration of justice into disrepute.[16]
[16] Batistatos [15].
If a litigant mounts a collateral attack on a final decision made against that litigant in a court of competent jurisdiction in which the litigant had a full opportunity of contesting the decision, the action in which that collateral attack is made constitute an abuse of process. This principle has wider application than the principles of res judicata, or issue estoppel. The principle can extend to proceedings between parties who are different to the parties to the proceedings in which the issue was previously determined.[17]
[17] Bride v Shire of Katanning [2008] WASC 131 referring to Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 392 - 393; Hunter v Chief Constable of the West Midlands Police [1982] AC 529; Reichel v Magrath (1889) 14 App Cas 665; Donnellan v The Public Trustee [2007] WASC 213.

In Ex Parte Gates, Vaughan J considered the meaning of the terms frivolous and vexatious:[18]
An action is frivolous when it is not worthy of serious consideration, is insupportable in law, discloses no cause of action or is groundless. So too a matter that is without substance or is fanciful is frivolous. The term is apt to describe proceedings in which the plaintiff's claim is so obviously untenable that it cannot possibly succeed or in which there is no serious question to be tried. An action is vexatious if it has no reasonable prospects of success. The term has also been said to be apt to describe an action which is a sham and which cannot possibly succeed.
Apart from the hopeless case - those that are obviously untenable or manifestly groundless - an action may be vexatious due to the motive of the litigant. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. So too proceedings are vexatious if they are brought for collateral purposes.
A proceeding will also be vexatious if it is productive of serious and unjustified trouble and harassment. (citations omitted).
[18] Ex Parte Gates [31] - [33].
The court's inherent power to refuse leave to file a proposed writ of summons is to be exercised in circumstances where it is necessary to protect both the court and proposed defendants from an unjustified waste of time and resources where the alleged action has no substance.[19] It is a power which should not be exercised lightly as it denies a potential plaintiff the opportunity to have the matter heard.[20]
[19] Ex Partes Gates [31] - [33].
[20] Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365, 373 ‑ 374; Middleton v The State of Western Australia (1992) 8 WAR 256, 264.

The first and second applicants' alleged causes of action

At the hearing of the application, both Mr Khosa and Ms Ruba made oral submissions as to their alleged causes of action against the proposed defendant. While the proposed writ of summons identifies the cause of action as a breach of statutory duty by the LPBWA, at the hearing Mr Khosa also contended that the applicants had a cause of action for malicious prosecution.

Breach of statutory duty by the LPBWA

Mr Khosa submits that the LPBWA has 'a duty of care to all practitioners who hold a practicing certificate and who are on the roll to treat them fairly, to be honest, upfront … a duty for full disclosure and … to be candid … and to act in good faith.'[21]
[21] ts 10.
Ms Ruba submits that the LPBWA, as the regulator of the legal industry, owes a duty to her, as a member of the public, to ensure that the people who provide legal services are good and honest.[22]
[22] ts 41 - 42.
Mr Khosa and Ms Ruba submit the LPBWA breached its statutory duties, as articulated by each of them, through its course of conduct. Such conduct included:
(1)the LPBWA, by the LPCC, relied upon an inaccurate expert report in the Second SAT Proceedings in that the handwriting expert 'lied in his CV and in his report on the forensic testing of Ms Ruba's almanac';[23]
(2)the LPCC used information obtained in a mediation in the First SAT Proceedings in order to coerce Mr Khosa's to plead guilty in other proceedings in the Tribunal (VR 37/2015);[24]
(3)the LPBWA, by the LPCC, adopted representations of Minter Ellison in prosecuting the First SAT Proceedings when such representations were without any factual basis and the Tribunal accepted the submissions of the LPCC without inquiring into their veracity;
(4)the LPCC attempted to coerce Mr Khosa and Ms Ruba to enter into a payment plan to resolve the matters the subject of the Second SAT Proceedings;[25] and
(5)the LPCC accepted the allegations of the barrister briefed by Mr Khosa without investigation.[26]

Malicious prosecution

[23] ts 3.

[24] ts 11 - 12.

[25] ts 25.

[26] ts 31.

The alleged cause of action of malicious prosecution of Mr Khosa on the part of the LPBWA was developed by Mr Khosa during his oral submissions at the hearing of the application. Mr Khosa submitted that the LPBWA, by its course of conduct towards him, amounts to malicious prosecution, because the LPBWA wanted to secure a finding of misconduct against him.[27]
[27] ts 35.
Mr Khosa and Ms Ruba deny that they are relitigating any matter that was before the Tribunal. They each contend that they are not seeking a different outcome from that in the 2015 SAT Decision or the 2023 SAT Decision. Rather, they say they have a cause of action against the LPBWA for breach of its duty in conducting the First SAT Proceedings and the Second SAT Proceedings which has caused each of them loss and damage.

Disposition

I deal with each of the alleged causes of action in the same order I have summarised them above.

Breach of statutory duty by the LPBWA

The proposed writ of summons alleges that the LPBWA, its committees, members, delegates and staff acted in breach of their statutory duties by engaging in conduct that breached the professional and ethical standards of the public sector, the legal profession and contrary to the good administration of justice. In oral submissions, Mr Khosa and Ms Ruba clarified that it was their contention that the LPCC, and various individuals acting on behalf of the LPBWA, breached their statutory duty by acting in bad faith because they treated them unfairly, dishonestly, did not give full and frank disclosure and were not candid.[28]
[28] ts 10, 19.
The elements of the tort of breach of statutory duty are:[29]
(1)a statutory duty imposed on the defendant;
(2)a legislative intention that the statute imposing the duty confers a private civil cause of action for breach of that duty;
(3)the plaintiff is within the class of persons for whose benefit the duty was imposed;
(4)breach of the duty;
(5)damage caused by the breach of the duty of a kind which the duty was designed to prevent.
[29] Jane Doe v Fairfax Media Publications [2018] NSWSC 1996.
On 1 July 2022, the Legal Profession Uniform Law Application Act 2022 (WA) (Uniform Law Act) came into operation. The Uniform Law Act repeals the Legal Profession Act 2008 (WA) (LP Act)[30] and the Legal Profession Uniform Law (WA) (Uniform Law) was applied as a law of the State of Western Australia.[31]
[30] Uniform Law Act s 260(a).
[31] Uniform Law Act s 6(2).
The conduct of the LPBWA which Mr Khosa and Ms Ruba alleges gives rise to a breach of statutory duty occurred prior to the commencement date of the Uniform Law Act. However, the proposed writ of summons is sought to be filed after the commencement date of the Uniform Law Act.
Part 16 Division 10 of the Uniform Law contains saving and transitional provisions. Within that division, s 267 of the Uniform Law Act provides:
267.Continuation of Legal Practice Board
(1) The Board established under this Act is the same entity as, and a continuation of, the Legal Practice Board established under section 534 of the old Act.
(2) The rights and liabilities of or in relation to the Legal Practice Board established under the old Act continue as rights and liabilities of or in relation to the Board established under this Act.
It is the time at which the alleged conduct of the LPBWA occurred that determines the legislation which is applicable. The applicable legislation at the time of alleged conduct of the LPBWA was the LP Act. It is therefore appropriate to consider the alleged breach of statutory duty by reference to the provisions of the LP Act. In any event, given the terms of s 267 of the Uniform Law Act, the rights and liabilities of the LPBWA are the same, regardless of the applicable legislation.
The threshold question in any action for breach of statutory duty is whether it was the intention of Parliament to create a private right of action.[32] Whether or not legislation creates a private right to enforce a statutory duty is a question of statutory interpretation. This was articulated by Kitto J in Sovar v Henry Lane Pty Ltd:[33]
[T]he question whether a contravention of a statutory requirement of the kind in question here is actionable at the suit of a person injured thereby is one of statutory interpretation. The intention that such a private right shall exist is not, as some observations made in the Supreme Court in this case may be thought to suggest, conjured up by judges to give effect to their own ideas of policy and then 'imputed' to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation.
[32] Seiffert v The Prisoners Review Board [2023] WASCA 15 citing Byrne v Australian Airlines (1995) 185 CLR 410, 424.
[33] Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397.
Therefore, it is necessary to consider the proper construction of the LP Act in order to determine whether it gives rise to a private right to Mr Khosa and/or Ms Ruba for breach of statutory duty. In order to find that the LP Act does give rise to a private right to claim for breach of statutory duty, the court must find that the implication of the terms of the LP Act is that Parliament intended to legislate for the protection of a class of persons which includes Mr Khosa and/or Ms Ruba.
The LP Act is legislation which was enacted:
(1)to provide for the regulation of legal practice in Western Australia;
(2)to facilitate the regulation of legal practice on a national basis; and
(3)for other related purposes.[34]
[34] Preamble to the LP Act.
Part 13 of the LP Act governs complaints and discipline. The purpose of Part 13 is provided for in s 401:
401. Purposes
The purposes of this Part are as follows —
(a)to provide for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;
(b)to promote and enforce the professional standards, competence and honesty of the legal profession;
(c)to provide a means of redress for complaints about lawyers.
The LP Act relevantly provides:
(1)by s 413, for the circumstances in which the practitioner must be notified of a complaint, the nature of the complaint and the identity of the complainant;
(2)by s 414, that the practitioner may make submissions and that the LPCC must consider the submissions before deciding what action to take in relation to the complaint;
(3)by s 415(2), that the LPCC must dismiss a complaint in certain circumstances;
(4)by s 421, that the LPCC may, on its own initiative, investigate the conduct of a legal practitioner if it has reasonable cause to suspect the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct; and
(5)by s 428, that the LPCC, if it determines that a matter should be heard by the Tribunal, may refer the matter to the Tribunal and that the LPCC is not limited 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 Tribunal.
The LP Act, by s 591(2), provides:
(2) An action in tort does not lie against a protected person for anything that the protected person has done, in good faith, in the performance or purported performance of a function under this Act.[35]
[35] The equivalent provision to s 591(2) of the LP Act is s 255 of the Uniform Law.
A 'protected person' includes the LPBWA, a member of the LPBWA, an employee of the LPBWA, any committee, or member of a committee, of the LPBWA.[36]
[36] LP Act s 591(1).
Having regard to the provisions of the LP Act, I consider that its scope and purpose is for the regulation of legal practice and the protection of consumers of services of the legal profession by investigating complaints. While I accept that a claimant's right to bring an action for damages for any conduct done with an absence of good faith or abuse of power, an absence of good faith is not an element of a cause of action for breach of statutory duty. I find that the LP Act does not, having regard to its provisions and in particular the express intention of Parliament embodied in s 591(2) thereof, confer on any class of persons a right of action at common law for breach of its provisions.
In the absence of a legislative intention conferring a private civil cause of action for breach of a statutory duty, Mr Khosa and Ms Ruba have no right to commence proceedings against the LPBWA for breach of statutory duty.
I find that the proposed writ of summons constitutes an abuse of process or would be a frivolous or vexatious proceeding as the claim is doomed to fail or is clearly unsustainable.
I now turn to consider the alternate cause of action of malicious prosecution which was raised at the hearing of the application.

Malicious prosecution

In order for Mr Khosa and/or Ms Ruba to establish the tort of malicious prosecution against the LPBWA, either or both must have been the subject of a public prosecution terminated in his or her favour and each must prove the following matters:[37]
1.the defendant played an active role in the conduct of the prosecution;[38]
2.the defendant acted without reasonable and probable cause,[39] which can be established by proving either:
(a)the defendant did not honestly conclude that the material on which he or she acted provided a proper case for prosecution;[40] or
(b)the material on which the defendant acted, considered in light of all of the facts of the particular case, was not objectively sufficient to support the conclusion that there was a proper case for prosecution;[41] and
3.the defendant acted maliciously in instituting or maintaining the prosecution: ie, that the defendant was actuated by a sole or dominant purpose other than the proper invocation of the criminal law.[42]
[37] Le v Plummer [2023] WASCA 178.
[38] A v The State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 (A v NSW) [34].
[39] A v NSW [1], [38] - [40], [54], [56].
[40] A v NSW [71], [77], [80] - [81], [118].
[41] A v NSW [82] - [87], [118].
[42] A v NSW [1], [91] - [92].
Putting aside the issue of whether the conduct engaged in by the LPBWA amounts to a prosecution, Mr Khosa and Ms Ruba do not overcome the first hurdle of a claim for malicious prosecution - because both the First and Second SAT Proceedings were not terminated in Mr Khosa's favour.
As a result, a claim for malicious prosecution constitutes an abuse of process as it is doomed to fail.

Collateral attack

There is another issue that I consider to be relevant to the proposed writ of summons sought to be filed by Mr Khosa and Ms Ruba. That is the established legal principle that is an abuse of process for a party to initiate legal proceedings which constitute a collateral attack upon a final decision made against that party by another court of competent jurisdiction where the party had full opportunity to contest the decision, if the pursuit of the same issue in the new proceedings would result in manifest unfairness or bring the administration of justice into disrepute amongst right-thinking people.[43]
[43] Bride v Shire of Katanning [2008] WASC 131 [15].
In Johnson v Gore Wood & Co,[44] Lord Bingham said:
The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied … that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional elements such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings would be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party.
[44] Johnson v Gore Wood & Co [2002] 2 AC 1 , 31.
At the hearing of the application, I put to Mr Khosa (on a number of occasions) that he had prior opportunities to put the matters he was raising in these proposed proceedings to the Tribunal in the First and/or Second SAT Proceedings, including the opportunity to appeal the decisions of the Tribunal. By way of example, Mr Khosa made an application in the Second SAT Proceedings to exclude an expert handwriting report being adduced in evidence in the proceedings. That application was made on one of the same grounds that the first applicant seeks to agitate in this application.[45] The Tribunal dismissed the application.
[45] First Khosa Affidavit; Annexure 'MSK 27'.
Mr Khosa's response to my enquiries, in oral submissions, was to the effect that there was no evidence before the Tribunal as to the relevant agreement as to costs between himself and Mr Gough of Minter Ellison, but rather that the Tribunal:[46]
listened to the LPCC, there was no inquiry of mind as to the evidence about such agreement. And because of that … it was accepted as a fait accompli there was an agreement, even though we had demonstrated – or … Mr Viner had demonstrated that there was never an agreement …
[46] ts 23.
Ms Ruba reinforced this:[47]
No matter what we have said, no matter how we demonstrate step by step this document – this is showing what actually happened. The LPCC and the LPB refuse to look at the facts that are present. I don't know how and who to go to to say, 'These are the facts. Why isn't anyone looking at the facts?' One of the answers that came from the tribunal is that the tribunal does not require evidence to make a decision.
… And the tribunal just follows – I – this is not about anyone in particular. It's just their system or whatever. They just follow whatever the LPCC says. They don't question the LPCC. They don't make them accountable for what they do, for what they say, for what they represent.
[47] ts 26, 27.
It was clear at the hearing that both Mr Khosa and Ms Ruba feel aggrieved by what they perceive to be the unsatisfactory conduct of the LPBWA over the last 10 years. This can be best demonstrated by the words of Ms Ruba:[48]
We have been trying so hard, your Honour – so hard to have somebody listen to us and to hear – sorry, to hear what it is that we've been going through, all the steps. No matter what steps we have taken to do the right thing in the practice with Mr Khosa being a legal practitioner. There seems to be endless – what's the word to use – misrepresentation of the facts in this 10 years. No matter what we have said, no matter how we demonstrate step by step this document – this is showing what actually happened. The LPCC and the LPB refuse to look at the facts that are present. I don't know how and who to go to say, 'These are the facts. Why isn't anyone looking at the facts?' One of the answers that came from the tribunal is that the tribunal does not require evidence to make a decision.
[48] ts 26.
Mr Khosa says that he and Ms Ruba are not seeking to relitigate matters that were before the Tribunal because they are not seeking a different outcome, that is they do not want the findings of the Tribunal to be overturned. They say that they have suffered damage as a result of the LPBWA's breach of statutory duty.
In both the First SAT Proceedings and the Second SAT Proceedings, Mr Khosa was found guilty of professional misconduct. As the Court of Appeal said in Khosa v Legal Profession Complaints Committee,[49] the purpose of a disciplinary proceeding against a legal practitioner is the protection of the public by the maintenance of proper standards within the profession rather than the punishment of the practitioner and the protection of the public includes both general deterrence of other practitioners who may be tempted to engage in the conduct and personal deterrence. The Court of Appeal dismissed Mr Khosa's appeal against the finding of professional misconduct of the Tribunal in the First SAT Proceedings.
[49] Khosa v Legal Profession Complaints Committee [2017] WASCA 192 [188] - [189].

Mr Khosa and Ms Ruba's submissions that the Tribunal effectively took the submissions of, and evidence adduced by, the LPBWA as incontrovertible facts are without foundation.
Section 428 of the LP Act provides that the LPCC can refer a matter to the Tribunal:
Referrals to SAT
(1) If the Complaints Committee determines that a matter should be heard by the State Administrative Tribunal the Committee may refer the matter to the Tribunal.
(2) The Complaints Committee is not limited under subsection (1) by the terms of any complaint it has received or by the subject matter of any investigation it has conducted and is not required to conduct an investigation before referring a matter to the State Administrative Tribunal.
A decision to refer a matter under s 428 is merely a decision to prosecute an allegation about a practitioner's conduct in the Tribunal. It is merely an administrative process that may, as opposed to will, lead to the Tribunal (or ultimately the Supreme Court) making a decision affecting the practitioner's rights and obligations. Any decision affecting the practitioner's rights and obligations is only made after the Tribunal has afforded the practitioner an opportunity to be heard.[50]
[50] Papamihail v Legal Profession Complaints Committee [2023] WASCA 183 [195].
Further, once the matter was before the Tribunal, Mr Khosa had the right to make an application to the Tribunal pursuant to s 48 of the State Administrative Tribunal Act2004 (WA) (SAT Act) which provides:
(1)This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as:
(a) failing to comply with an order or direction of the Tribunal without reasonable excuse; or
(b) failing to comply with this Act or the enabling Act; or
(c) asking for an adjournment the need for which is attributable to a failure described in paragraph (a) or (b); or
(d) attempting to deceive another party or the Tribunal; or
(e) vexatiously conducting the proceeding; or
(f) failing to attend any hearing in the proceeding.
The Tribunal's power under s 48 of the SAT Act is a power conferred on it in order to carry out its objectives under s 9(b) of the SAT Act, that is to ensure that proceedings are conducted as speedily and with as little formality and technicality as is practicable and in a way which minimises the cost to the parties. The Tribunal's objectives also include to achieve the resolution of questions, complaints or disputes, and to make or review decisions, fairly and according to the substantial merits of the case.[51]
[51] SAT Act s 9(a).
In fact, Mr Khosa made two applications pursuant to s 48 of the SAT Act to strike out the Second SAT Proceedings on the basis that the LPCC had disadvantaged Mr Khosa by attempting to deceive him and/or the Tribunal by its conduct. These applications were ultimately dismissed by the Tribunal.[52]
[52] Legal Profession Complaints Committee and Khosa [2019] WASAT 143; Legal Profession Complaints Committee and Khosa [2021] WASAT 64.
In relation to the matters that were decided by the Tribunal in each of the First and Second SAT Proceedings and by the Court of Appeal - Mr Khosa has had an opportunity to raise issues that he had with the conduct of the LPCC and to test the evidence presented by the LPCC to the Tribunal. The Tribunal made findings of fact having considered Mr Khosa's submissions.
The appropriate avenue to challenge the Tribunal's findings in each of the First and/or Second Proceedings is by appeal to the Court of Appeal. Mr Khosa did pursue that avenue of appeal in relation to the First SAT Proceedings and was unsuccessful. To now challenge the conduct of the LPBWA would result in manifest unfairness and bring the administration of justice into disrepute amongst right-thinking people.
Even if the proper construction of the LP Act did give rise to a private cause of action for breach of statutory duty (contrary to what I have found), I consider that the proposed writ of summons amounts to a collateral attack on the decisions of the Tribunal in the First and Second SAT Proceedings and is therefore an abuse of process.
Further, the cause of the alleged damage suffered by Mr Khosa and Ms Ruba is the findings of the Tribunal of professional misconduct on the part of Mr Khosa. If those findings are not disturbed, any action by Mr Khosa and Ms Ruba alleging damage is caused by the conduct of the LPBWA is doomed to fail. For this further reason, the proposed writ of summons is an abuse of process.

Conclusion

In the circumstances, I am satisfied that the proposed writ of summons would be an abuse of process of the court and would be a frivolous and vexatious proceeding and that leave to file the writ should be refused.
I refuse Mr Khosa's and Ms Ruba's application and order that the ex parte originating motion dated 2 June 2023 be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Hon Justice Whitby
15 DECEMBER 2023