ROBERTS and EXECUTIVE OFFICER OF THE STATE ADMINISTRATIVE TRIBUNAL
[2005] WASAT 141
•21 JUNE 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: LEGAL PRACTICE ACT 2003
CITATION: ROBERTS and EXECUTIVE OFFICER OF THE STATE ADMINISTRATIVE TRIBUNAL [2005] WASAT 141
MEMBER: DEPUTY PRESIDENT CHANEY
HEARD: ON THE PAPERS
DELIVERED : 21 JUNE 2005
FILE NO/S: SAT 1 of 2005
BETWEEN: ROBERT JOSEPH ROBERTS
Applicant
AND
EXECUTIVE OFFICER OF THE STATE ADMINISTRATIVE TRIBUNAL
Respondent
Catchwords:
Procedure - Tribunal - standing to bring application - rejection of applications by Executive Officer - review of decision
Legislation:
Interpretation Act 1984 (WA), s 37(1)
Legal Practice Act 2003 (WA), s 177, s 181, s 202
State Administrative Tribunal Act 2004 (WA), s 44
Result:
Applications rejected
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: N/A
Solicitors:
Applicant: Self-represented
Respondent: N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
DEPUTY PRESIDENT CHANEY:
REASONS FOR DECISION
On 16 March 2005, the applicant lodged with the Tribunal two applications purporting to be brought pursuant to s 202 of the Legal Practice Act 2003 (WA). One complaint was made against a solicitor: Mr S. Boni, and the other against another solicitor, Mr G J Coad.
In relation to the complaint against Mr Boni, the Legal Practitioners Complaints Committee ("the Complaints Committee") had advised Mr Roberts in writing on 30 September 2004 that the committee had considered the allegation against Mr Boni, found that the complaint disclosed no apparent cause for disciplinary action and resolved neither to deal with the matter summarily nor refer it to the disciplinary tribunal. On 3 February 2005, the Complaints Committee advised Mr Roberts in writing that it had considered the complaint against Mr Coad, found that there was no apparent unsatisfactory conduct by him, and resolved neither to deal with the matter summarily nor refer it to the disciplinary tribunal.
In light of those decisions, Mr Roberts sought to bring his complaints to the State Administrative Tribunal for adjudication. The Executive Officer of the Tribunal rejected the applications in accordance with s 44(1)(a) of the State Administrative Tribunal Act, on the ground that the applicant was not entitled to make the application. Pursuant to s 44(3) of the Act, the applicant requested the Executive Officer to refer the decision to reject the application to the tribunal. The president constituted me as the tribunal for the purpose of reviewing the Executive Officer’s decision.
The relevant statutory provisions
The original applications by Mr Roberts purported to be made under s 202 of the Legal Practice Act 2003. That section provides that “any person aggrieved by a finding or order made by the Complaints Committee under s 177 may apply to the State Administrative Tribunal for a review of the finding or order.”
Section 177 of the Legal Practice Act 2003 confers disciplinary jurisdiction on the Complaints Committee exercisable with the consent of the legal practitioner concerned. Sub-section 2 provides that if the Complaints Committee makes a finding of unsatisfactory conduct against a practitioner, it may do a number of things by way of penalty including impose a fine or reprimand, require the practitioner to take advice in relation to the conduct of his practice, require the practitioner to reduce or refund fees or charges, and order the practitioner to pay costs.
In this case, the resolution of the Complaints Committee, was in each case, not to deal with the matter summarily upon the basis that the complaint disclosed no basis for a finding of unsatisfactory conduct. Accordingly, it made no finding, and thus made no order, under s 177 of the Legal Practice Act 2003. In the absence of a finding or order made by the Complaints Committee under s 177, s 202 cannot give rise to any right of review to this tribunal.
When a complaint is made to the Complaints Committee, there are a number of courses that the Complaints Committee may take. It may undertake the process of conciliation outlined in s 176 of the Act, it may deal with the matter summarily under s 177, or it may refer the matter to the State Administrative Tribunal, or it may, as it did in this case, decide to take no further action. The situation where the Complaints Committee determines that a complaint should neither be dealt with summarily under s 177 nor referred to the State Administrative Tribunal is dealt with by s 181 of Legal Practice Act 2003.
Section 181 was amended by the State Administrative Tribunal(Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA). Section 620 of that Act repealed sub-sections (2)(3) and (4).
What remains of s 181 is sub‑section 1. It provides that:
"If the complaints committee, after inquiry determines that a complaint should neither be dealt with summarily under s 177 nor referred to the State Administrative Tribunal, the committee must cause the Law Complaints Officer to give, in writing to the complainant and the legal practitioner concerned, notice of that determination, together with short particulars of the reasons for the determination."
A complainant's capacity to institute a complaint to the State Administrative Tribunal
Prior to the amendment of the section, sub-sections (2),(3), and (4) permitted a complainant aggrieved by a determination under sub‑section (1) to refer the complaint to the Legal Practitioner's Disciplinary Tribunal. In substituting the State Administrative Tribunal as the body dealing with serious disciplinary complaints against legal practitioners, parliament has chosen to remove the specific right of a complainant to bring a complaint to this tribunal where the Complaints Committee declines to do so. The scheme of the Act, as it now stands, is to leave decisions as to whether the matter should be referred to this tribunal entirely in the hands of the Complaints Committee. That is a policy which is consistent with the approach now taken under all vocational regulatory Acts. That is, the body with responsibility for the regulation of a particular vocational group is to receive complaints from members of the public as to alleged breaches of professional standards, to investigate those complaints, and if it thinks appropriate, to refer those complaints to the State Administrative Tribunal which has the responsibility of adjudicating on the complaint and imposing any sanctions. There is no opportunity for complainants personally to institute proceedings in this tribunal in relation to vocational disciplinary matters.
Is any previous right preserved after amendment?
The decision of the Complaints Committee in relation to Mr Coad was made on 3 February 2005, after the amendment to the Legal Practice Act 2003. As of that date, no right existed for Mr Roberts to pursue his complaint with the State Administrative Tribunal. The decision in relation to Mr Boni was, however, apparently made on 30 September 2004, prior to the amendment to the Legal Practice Act 2003, and thus prior to the deletion of sub-sections (2)‑(4) of s 181. At the time that the decision was made by the Complaints Committee in relation to Mr Boni, the applicant had a right to refer his complaint to the disciplinary tribunal. He did not avail himself of that right in the three months leading up to 1 January 2005 when the amendment to the legislation came into force. It is necessary, therefore, to consider the effect of s 37(1)(c) of the Interpretation Act 1984 (WA). That sub section relevantly provides that "where a written law repeals an enactment, the repeal does not, unless the contrary intention appears ‑ affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal."
Two issues arise in considering the effect of s 37(1) of the Interpretation Act 1984 to this case. The first is whether "a contrary intention appears" from the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Appeal Act 2004. The second is the consequences of the fact that the right existing prior to the repeal is a right to bring the complaint to the Legal Practitioners Disciplinary Tribunal, a body that no longer exists.
Nothing in the State Administrative Tribunal Act 2004 gives jurisdiction to this tribunal to hear and determine a complaint by a member of the public in relation to the conduct of a legal practitioner. Section 167 of the State Administrative Tribunal Act 2004 deals with the transfer of jurisdiction from former adjudicators to the tribunal. Its provisions relate to what are referred to as "devolved matters". They are matters in respect of which a written law confers jurisdiction on the tribunal. No jurisdiction is conferred on the tribunal to deal with complaints brought by individuals against legal practitioners, or indeed any other vocational group. The matters which Mr Roberts seeks to bring before the tribunal are not, therefore, "devolved matters". Section 167 therefore has no application to Mr Roberts complaints.
The State Administrative Tribunal is a creature of statute. It derives its jurisdiction and powers from the statute which creates it, and those statutes which confer power upon it. In the absence of an express conferral of jurisdiction to deal with any particular matter, the tribunal cannot deal with it. The repeal of sub sections 181 (2), (3) and (4) evince an intention on the part of the legislature that the tribunal not be empowered to hear complaints brought by individual members of the public against legal practitioners. The clear intention of the legislation is that responsibility for bringing proceedings before the State Administrative Tribunal in relation to the discipline of legal practitioners rests with the Complaints Committee. If it decides not to deal with the matter by way of conciliation, summary jurisdiction or referral to the State Administrative Tribunal, then that decision is effectively final. In my view, the absence of any provision in the State Administrative Tribunal Act 2004 which preserves a right of an aggrieved complainant to make a complaint to this tribunal where the Complaints Committee declines to do so, evinces an intention in the legislation that the general saving provision contained in s 37 of the Interpretation Act 1984 does not apply in the circumstances. That is, a "contrary intention appears" so that whatever right may have existed is no longer exercisable.
Even if I am wrong in that conclusion, any right which survived the amendment to the Legal Practice Act 2003 is not a right to bring proceedings to this tribunal. It is a right to refer the complaint to the Legal Practitioners Disciplinary Tribunal. Nothing in the State Administrative Tribunal Act 2004, nor the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 gives this tribunal any general jurisdiction to do whatever the previous tribunal which it replaces might have done. Jurisdiction of this tribunal is dependant upon express statutory conferral. If s 37 of the Interpretation Act 1984 were to be given effect, it would seem to require that the Legal Practitioners Disciplinary Tribunal would continue in existence for the purpose of receiving and dealing with proceedings referred to it under the former s 181(2) of the Legal Practice Act 2003. There are obvious practical difficulties in that proposition. Those difficulties do not, however, provide any basis for a conclusion that this tribunal has any jurisdiction to entertain the present applications.
It follows that, in my view, whatever may be the effect of s 37(1) of the Interpretation Act 1984, the effect is not to confer a jurisdiction on this tribunal to deal with the complaint which Mr Roberts seeks to bring to this tribunal against Mr Boni. As already indicated, in respect of Mr Coad, the decision having been made after 1 January 2005, s 37 of the Interpretation Act 1984 has no application.
Conclusion
For the foregoing reasons, I am of the view that the decision of the Executive Officer to reject the applications by Mr Roberts was correct and should stand. Mr Robert's two applications of 16 March 2005 are rejected.
I certify that this and the preceding six pages comprise the reasons for decision of the Tribunal.
____________________________
Deputy President Chaney
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