Sims and Legal Profession Complaints Committee & Ors

[2013] WASAT 44

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   VOCATIONAL REGULATION

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION:   SIMS and LEGAL PROFESSION COMPLAINTS COMMITTEE & ORS [2013] WASAT 44

MEMBER:   JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD:   13 MARCH 2013

DELIVERED          :   13 MARCH 2013

PUBLISHED           :  5 APRIL 2013

FILE NO/S:   VR 179 of 2012

BETWEEN:   DOUGLAS ARTHUR  SIMS

Applicant

AND

LEGAL PROFESSION COMPLAINTS COMMITTEE & ORS
First Respondent

KEITH THOMAS
Second Respondent

PETER INNES  JOOSTE
Third Respondent

Catchwords:

Practice and procedure - Extension of time in which to seek review - Legal practitioners - Legal Profession Act 2008 (WA) s 435(1)(a) - Review of decision of Legal Profession Complaints Committee to dismiss complaint about legal practitioner

Legislation:

Legal Profession Act 2008 (WA), s 410, s 425, s 428, s 435(1), s 435(1)(a), s 435(2)
State Administrative Tribunal Act 2004 (WA), s 20(1)
State Administrative Tribunal Rules 2004 (WA), r 9, r 10

Result:

Application for extension of time in which to seek review dismissed

Summary of Tribunal's decision:

Mr Douglas Sims made complaints to the Legal Profession Complaints Committee pursuant to s 410 of the Legal Profession Act 2008 (WA) in relation to the conduct of two practitioners, Mr Keith Thomas and Mr Peter Jooste QC, in Supreme Court proceedings in which Mr Sims was a party.

The Legal Profession Complaints Committee dismissed the complaints under s 425 of the Legal Profession Act 2008, as it was satisfied that there was no reasonable likelihood the practitioners would be found guilty of unsatisfactory professional conduct or professional misconduct by the Tribunal. Mr Sims had a right to seek review under s 435(1)(a) of the Legal Profession Act 2008 within 28 days of being given notice of the decision. 

Mr Sims applied to the Tribunal for review of the decision 31 days out of time and sought an extension of time.  The practitioners opposed the application.

The Tribunal gave an oral decision, following the hearing, in which it refused to extend time in which to seek review.  The Tribunal subsequently published written reasons which are taken from the transcript of oral reasons edited in minor respects.

Category:    B

Representation:

Counsel:

Applicant:     In person

First Respondent           :     Ms D Mahiepala

Second Respondent       :     Mr JR Ludlow

Third Respondent         :     In person

Solicitors:

Applicant:     N/A

First Respondent           :     Law Complaints Officer

Second Respondent       :     Downings Legal

Third Respondent         :     N/A

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

Curlewis and City of Albany [2011] WASAT 85

O'Connor and Town of Victoria Park [2005] WASAT 161

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

1. Mr Douglas Sims made two complaints to the Legal Profession Complaints Committee (Committee), under s 410 of the Legal Profession Act 2008 (WA) (LP Act), about two legal practitioners, Mr Keith Thomas and Mr Peter Jooste QC.

2. The first complaint was made against both practitioners and related to an affidavit sworn by Mr Dermott Patterson on 1 December 2009 in proceedings in the Supreme Court of Western Australia and statements to the Court on 22 December 2009 in relation to an application for an interim injunction and alleged breaches of duties to the Court.  I will refer to this complaint as Complaint 1.  The second complaint was made about Mr Jooste alone and related to an affidavit sworn by him on 5 February 2010 in the same Supreme Court proceedings.  I will refer to this complaint as Complaint 2. 

3. In a letter dated 24 August 2012 sent to Mr Sims' home address by post, the Committee advised Mr Sims that, after careful consideration, it had resolved to dismiss both complaints under s 425 of the LP Act because it was satisfied that there is no reasonable likelihood that the practitioners would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct if the complaints were referred to the Tribunal under s 428 of the LP Act. In dismissing Complaint 2, the Committee specifically found the complaint to be unreasonable and vexatious.

4. The letter set out the Committee's reasons at some length and then advised Mr Sims that he had a right to seek review of the Committee's decision by the Tribunal, although the letter also advised him that under r 9 and r 10 of the State Administrative Rules 2004 (WA) (SAT Rules), 'The time period for requesting review is within 28 days of notice of the decision but the Tribunal may extend the time limit'.

5. The letter also advised Mr Sims, correctly, that s 435(2) of the LP Act provides that if the Committee, in its reasons for decisions, specifically finds the complaint to be unreasonable or vexatious, the person aggrieved cannot apply to the Tribunal for review unless the Tribunal grants leave.

Application for review

1. On 26 October 2012, Mr Sims sought review of the Committee's decision by the Tribunal under s 435(1) of the LP Act. Rule 9 of the SAT Rules relevantly provides that, subject to the SAT Rules, an application for review must be filed within 28 days of the day on which the decision­maker gives a notice of the decision and of the right to have it reviewed to the person who seeks review under s 20(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

2. As noted earlier, the Committee's letter, which gave Mr Sims notice of the decision and of his right to have it reviewed, was dated 24 August 2012, which was a Friday, and was sent by post.  It is likely that the letter was delivered to Mr Sims' home in the normal course of the post by Tuesday, 28 August 2012.

3. Under r 9 of the SAT Rules the application for review therefore had to be commenced within 28 days of 28 August 2012; that is, by 25 September 2012. Consequently, the application for review was 31 days out of time. However, r 10 of the SAT Rules confers a discretion upon the Tribunal to extend the time fixed by r 9 for the commencement of proceedings, even if the time period expired before an application for an extension is made.

Preliminary issues

1. On 15 January 2013, the President, Chaney J, ordered that the following two questions are to be determined as preliminary issues before the Tribunal today: 

   1)whether time for commencement of this application for review should be extended; and

   2)whether leave is required under s 435(2) of the LP Act in respect of all matters dealt with by the Committee's decision in its letter of 24 August 2012 or whether this requirement is confined only to the particular matter found by the Committee to be unreasonable and vexatious.

2. Before addressing the preliminary issues I will refer briefly to the factual background.

Factual background

1. In its letter setting out its reasons the Committee helpfully summarised the factual background in terms that were not in dispute. 

2. Mr Thomas acted for the plaintiff company Supreme Court proceedings in respect of a dispute relating the ownership of certain shares in a German company.  The dispute involved complicated factual and legal issues.  Mr Jooste was a director and chairman of the plaintiff company.  Mr Sims was one of the defendants in the Supreme Court proceedings.  He was represented in the Supreme Court proceedings by Mr MacDonald of MacDonald Rudder.

3. On 18 December 2009, the plaintiff company applied to the Supreme Court for an interlocutory injunction to restrain any dealings with the disputed shares.  The CEO of the plaintiff company, Mr Patterson, swore an affidavit in support of the application. 

4. Prior to the injunction application a meeting had been held at the offices of MacDonald Rudder on 17 November 2009 attended by Mr Thomas, Mr Jooste, Mr Patterson, Mr MacDonald and Mr Sims.  The meeting was called for the purpose of discussion the competing claims to the disputed shares.  Mr Sims said in his documentary material to the Committee that at the meeting Mr MacDonald set out the basis upon which the defendants in the proceedings claimed ownership of the disputed shares and made specific reference to email evidence said to contain directions by Mr Patterson on behalf of the plaintiff company for the disputed shares to be issued to the defendants.  This email evidence was referred to in the Committee's decision and in the argument today as 'the email evidence'.

5. By letter dated 18 November 2009, Mr MacDonald wrote to Mr Thomas recording certain matters said to have occurred at the 17 November meeting.  Mr MacDonald said that although the meeting was expressed to be on a 'without prejudice' basis, those attending agreed that this did not cover admissions of fact.  Mr MacDonald's letter made specific reference to some of the email evidence.  It appears that the email evidence was not enclosed with Mr MacDonald's letter of 18 November 2009.  Mr Thomas replied on 19 November 2009 disputing Mr MacDonald's letter and said that the meeting proceeded on an entirely 'without prejudice' basis and objected to the matters being referred to in open correspondence.

6. After being served with the injunction application and Mr Patterson's affidavit, Mr MacDonald wrote to Mr Thomas on 21 December 2009, again referring to the email evidence.  Mr Patterson's affidavit, which was prepared for the purpose of the application for the injunction, did not make any mention of the email evidence and contained the statement, 'I have no idea how [the defendants] can assert ownership [of the disputed shares] when the plaintiff is their true owner'.

7. The injunction application was heard by his Honour Heenan J in the Supreme Court on 22 December 2009.  The plaintiff company was represented by counsel.  Both Mr Thomas and Mr Jooste were present in Court.  Mr MacDonald represented the defendants, including Mr Sims.  No affidavit evidence was put before the Court on behalf of the defendants.

8. After his Honour heard argument he ordered that an interim injunction be issued preventing any dealings with or encumbering of the disputed shares to allow the defendants to file affidavit evidence, pleadings to be delivered and for the matter to be fully and duly argued on a date in February 2010.

9. During the course of the argument on 22 December 2009, the plaintiff company's counsel made statements to the Court to the effect that he did not know the basis for the defendants claim and that the plaintiff did not know how the disputed shares came to be distributed to the defendants.

10. On 19 January 2010, Mr Sims swore an affidavit in response to the application for an injunction.  The Committee said in its letter ­ and it was not disputed ­ that the facts in the affidavit were detailed and complex but essentially the statement was made by Mr Sims that there was an agreement involving the directors of the plaintiff company and the German company which had the effect of authorising the distribution of the disputed shares to the defendants.  Mr Sims annexed the email evidence to his affidavit in support of the defendant's contentions.

11. The Supreme Court action then came on for further hearing in relation to the application for an interlocutory injunction on a longer­term basis than the interim order granted by Heenan J before his Honour Murphy J on the 9 February 2010.

12. The matter was part heard and further argument occurred on 19 February 2010.  His Honour Murphy J delivered his decision on 22 February 2010, finding that the plaintiff company had 'established a prima facie case in the relevant sense'.  However, his Honour refused to order a restraint beyond preservation of the disputed shares as he had reservation concerning the strength of the plaintiff's case.  The Supreme Court proceedings were ultimately settled following mediation in November 2010.

13. Mr Jooste had also sworn an affidavit in the proceedings between the granting of the interim interlocutory injunction and the hearing in relation to the continuance of the interlocutory injunction on a more permanent basis by Murphy J.  In Mr Jooste's affidavit, which was dated 5 February 2010, he in part responded to Mr Sims' affidavit.  Mr Jooste, in the affidavit, referred to having had a professional relationship with Mr Sims and having acted for him and related companies.

14. Mr Jooste said in his affidavit that his professional charges were often paid late and 'services above and beyond the norms of duty were rendered'.  Mr Jooste referred to the companies of Mr Sims having transferred to him shares in a certain company in recognition of his invoices being paid late and services above and beyond the norms of duty being rendered.

Should time for commencement of the proceedings be extended?

1. The Tribunal has a broad discretion under r 10 of the SAT Rules as to whether to extend the time for commencement of a proceeding. It is recognised that the applicant for an extension of time bears the onus of satisfying the Tribunal to exercise its discretion to extend time in the circumstances of the case: see Curlewis and City of Albany [2011] WASAT 85 at [69] (Curlewis).

2. As the Tribunal also recognised in Curlewis at [69], each case requires careful consideration and balancing of all relevant circumstances and 'care must be taken in referring to other exercises of discretion in other cases because necessarily circumstances will vary from case to case'.

3. The Tribunal has recognised in a number of cases that while the range of consideration in relation to whether to extend time under r 10 is not closed, there are four principal considerations to be taken into account. These are: first, the length of delay; secondly, the reasons for delay, and in particular whether there is a satisfactory explanation for the delay; thirdly, whether there is an arguable case for review; and fourthly, whether the extension would cause prejudice.

4. The length of delay in this case, namely, 31 days, is not insignificant.  In O'Connor and Town of Victoria Park [2005] WASAT 161, a slightly longer period of delay of over five weeks was characterised by the Tribunal as 'borderline'. In Curlewis, the Tribunal characterised the delay of two weeks as 'not a minor period, but nor is it a substantial period of delay'.  The period of delay of 31 days needs to be appreciated in the context of a 28 day period for commencement of proceedings.

5. In relation to the reasons for delay, I find that Mr Sims has not given a satisfactory explanation for the delay.

6. In an affidavit filed in Federal Court proceedings which he attached to his application to the Tribunal, Mr Sims deposed that he was absent from Perth interstate and overseas between 12 July 2012 and 20 September 2012.  He also said that after returning to Perth on 20 September 2012, he was unwell with a severe chest infection and spent approximately two weeks receiving daily medical monitoring and treatment.  However, Mr Sims provided no details in that affidavit, nor subsequently, and attached no supporting medical or other information, and provided none to the Tribunal.

7. Furthermore, Mr Sims provided the Tribunal with a four page letter which he wrote to Mr Jooste on 25 September 2012, after his return to Perth.  While the letter makes some statements and claims that are difficult to follow, it shows that he was well enough on 25 September 2012 to undertake lengthy correspondence on matters that appear to be generally related to his statements in the application to the Tribunal.  There is no reasonable explanation as to why Mr Sims could not have filed the application for review on the same day as he wrote this lengthy correspondence to Mr Jooste.  There is also no reasonable explanation as to why it took Mr Sims 31 days to file the application for review beyond 25 September 2012.

8. As to whether there is an arguable case for review, Mr Sims alleges in relation to Complaint 1 that the email evidence was deliberately omitted from Mr Patterson's affidavit and that this resulted in the granting of an interim injunction by Heenan J after his Honour was misled in this respect.  Further, Mr Sims alleges that at the hearing before Murphy J the injunction that was imposed was set aside and costs and damages were ruled in favour of the defendants, including Mr Sims.

9. However, as the Committee noted in its reasons, both practitioners said in their correspondence to the Committee that they had no conscious appreciation of the existence of the email evidence until they received Mr Sims' affidavit sworn in January 2010.

10. Although Mr Sims initially relied on what occurred at the meeting on 17 November 2009, both practitioners said that copies of the email evidence was not provided at that meeting and this does not appear to be disputed.  Although the email evidence was certainly referred to at the meeting, it appears that it was displayed only on a smart board.

11. Mr Thomas said that he had only recently become instructed in the proceedings which related to complex factual and legal matters and that the tone of the meeting was not conducive of a careful consideration of matters raised in the documents that were apparently displayed during part of that meeting.

12. Mr Thomas provided submissions to the Committee.  After receipt of those submissions Mr Sims alleged that he had handed the email evidence to Mr Thomas at the November meeting and also posted copies to Mr Thomas on 13 December 2009.  Mr Thomas denied these assertions and a review by the Committee of Mr Thomas's file did not cast any doubt on Mr Thomas's denials.

13. In relation to the letter of 18 November 2009 from Mr MacDonald, Mr Thomas said that his response emphasised the 'without prejudice' nature of the November meeting as the focus.  Mr Thomas also said to the Committee that he did not, he believed, revisit Mr MacDonald's correspondence prior to the injunction hearing on 22 December 2009, including when preparing Mr Patterson's affidavit.

14. The review by the Committee of Mr Thomas' file did not reveal anything obviously inconsistent with Mr Thomas's explanation that he had no conscious appreciation of the email evidence when preparing Mr Patterson's affidavit.

15. Having regard to the evidence referred to, in my view, there is no arguable case for review in this case in relation to the decision of the Committee to dismiss the complaint against the practitioners on the basis that there is no reasonable likelihood that they would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct.

16. There are four other factors emphasised by the Committee that, in my view, are relevant and also clearly have the effect that Mr Sims' application to the Tribunal in relation to Complaint 1 is not reasonably arguable in terms of a review of the Committee's decision to dismiss the complaint.  Firstly, Heenan J granted the injunction essentially because he required the defendants to provide evidence of their claim.  This was not disputed before me.  Secondly, the Committee said that the defendant's counsel indicated that there would not be any great consequence of granting an interim injunction until February 2010.  Again this was not disputed.  Thirdly, Murphy J dealt specifically with the fact that the email evidence was not disclosed in the affidavits, on the original application before Heenan J and with Mr Patterson's statement in his affidavit that he had no idea of how the defendants can assert ownership of the disputed shares.  His Honour commented that several of the defendants, including Mr Sims, 'do not contend that there has been material nondisclosure in any relevant sense'.  Finally, Mr Sims' characterisation of Murphy's J decision, as the Committee said in its reasons and as was not disputed before me, is incorrect.  The reason why the injunction was set aside was because the counsel for the defendants gave an undertaking in similar terms to the interim injunction granted by Heenan J.  Furthermore, contrary to Mr Sims' position, Murphy J did not make a ruling of damages in favour of the defendants.

1. Although the test for whether there is an arguable case for review is low, in my view, having regard to the circumstances, there is simply no arguable case for review of the decision to dismiss the first complaint on the basis that there is no reasonable likelihood that the practitioners would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct if the complaint were referred to the Tribunal.

2. In relation to the second complaint, which as I have said relates only to Mr Jooste, essentially, as the Committee was able to characterise the complaint,  it relates to an allegation that the affidavit was false and misleading.  However, the Committee had considerable difficulty in understanding the essential points of the complaint.  The Committee described the complaint relating to this allegation as 'confusing and at times inconsistent'.

3. Mr Sims provided an extensive 'summary' of his application in his application for review and provided a lengthy affidavit to the Tribunal in relation to the application heard before me today.  Having read all of that material, in my view, the Committee's characterisation is plainly correct, if not an understatement. 

4. Mr Sims has raised a plethora of disparate, ill­defined and unparticularised allegations against Mr Jooste in particular which do not appear to have anything to do with the affidavit which is the subject of Complaint 2, but rather demonstrate a wider antipathy to Mr Jooste.

5. The Committee did its best to discern some meaningful particulars of the complaint about the affidavit and it said that one aspect of the affidavit that was particularly the subject of certain correspondence from Mr Sims related to the statement of Mr Jooste that he did not render invoices for 'services above and beyond the norms of duty'.  However, Mr Sims did not provide any meaningful particulars even of this aspect of his concern.  Having regard to the entirely ill­defined nature of the complaint in relation to the affidavit, in my view, there is no arguable case for review in relation to the dismissal of Complaint 2.

6. The next matter for consideration is whether there is any prejudice to anyone, and in particular any of the respondents, if an extension of time were granted.  Mr Jooste deposed in an affidavit that, in about the end of September and October 2012, he 'had already calculated that Mr Sims had allowed the regulated time for review to lapse despite express warning in that regard in the LPCC's reasons for decision'.  The significance of that statement by Mr Jooste is that at the time that the Committee made its decision and the period for review expired, a Federal Court proceeding was ongoing between Mr Jooste as applicant and Mr Sims as respondent and that that proceeding was scheduled for hearing in December 2012.

7. On Friday, 16 November 2012, Mr Sims' solicitors made a so­called 'Calderbank offer' of settlement of the Federal Court proceeding expiring at 4 pm on Monday, 19 November 2012.  In fact that offer resulted in the settlement of the Federal Court proceeding on Wednesday, 21 November 2012.  Significantly, although Mr Sims had filed the application for review out of time in the Tribunal on 26 October 2012, he had not served or given notice of the application to Mr Jooste or to Mr Thomas.

8. Mr Sims explained that he is a lay person and was not aware of the obligation to serve the application on the respondents.  Accepting that is the case, nevertheless, what occurred in this case, on Mr Jooste's unchallenged evidence, is that an offer of settlement was made to him in relation to Federal Court proceedings which he accepted, in complete ignorance of the fact that this proceeding in the Tribunal had been commenced out of time.  As Mr Jooste said in his evidence:

   I was thus placed at a considerable disadvantage in considering whether or not to agree to the terms of settlement offered in the Federal Court proceedings (and I suffered prejudice accordingly).

9. Mr Jooste said that:

   Had I known that the LPCC matter would subsequently rear its head, I would have seriously considered rejecting Mr Sims' particular Calderbank offer in the Federal Court proceedings, or at least negotiated stronger terms including material cost considerations, and all further best endeavours to realise the long­held goal of a complete and final separation and settlement of all claims and interests between Mr Sims, his family and all their associates (corporate and individual) and myself, my family and all our associates (corporate and individual).

10. Plainly, in the circumstances of this case, extending time to commence proceedings in the circumstances would cause real and significant prejudice to Mr Jooste for the reasons that he gave. 

11. Furthermore, there is a wider real and material prejudice to both practitioners, as emphasised by Mr JR Ludlow, who appeared on behalf of Mr Thomas, that is, that both practitioners have been subject to an ongoing complaint by Mr Sims for the past two years or more and with the expiry of the period for commencement of the application for review, they reasonably expected that this matter was no longer hanging over their professional heads. 

12. I accept that there is real and material prejudice to both practitioners in the continuation of a complaint through the Tribunal process beyond simply having to take part in further proceedings.

13. As I mentioned at the outset, the categories of consideration are not closed and Mr Sims raised essentially three other matters that he submitted were matters for consideration to be balanced with other factors in the exercise of discretion.

14. Firstly, Mr Sims said that the Committee breached what Mr Sims described as a 'protocol' it had with him of sending him correspondence by email when it sent the decision of letter 24 August 2012 by ordinary post.  Ms Mahiepala, who appeared on behalf of the Committee, said that the decision letter was sent in the usual way for decisions of the Committee by post.  There is no evidence before me of a protocol but, in any case, the conduct of the Committee was entirely reasonable.  Furthermore, Mr Sims had the letter when he returned home, which was prior to the expiry of the 28 day period. 

15. The second factor emphasised by Mr Sims was that the Committee, he said, refused to return certain original documents that he had provided to it.  Ms Mahiepala said that she had no instructions in relation to this allegation but could see no reason why the Committee would retain original documents.  Furthermore, this issue was not, it appears, raised before Chaney J on 15 January 2013, or at any other time in the proceeding.

16. If there are documents that are original documents retained by the Committee, this did not affect Mr Sims' ability to lodge the application with the Tribunal on 26 October 2012, which as I indicated earlier contained a lengthy summary of certain points that he wished to make.  Even accepting that the Committee has retained certain original documents, that fact would not provide any reasonable explanation for the delay, nor a factor that would warrant the extension of time being granted.

17. Finally, Mr Sims made a generalised allegation of 'conspiracy' between the Committee and the practitioners.  There is simply not a shred of evidence before me to support a conspiracy between the respondents in relation to this matter.

18. Balancing each of the four principal considerations and having regard to the considerations raised specifically by Mr Sims, in my view, in the exercise of discretion, leave to extend time to commence this proceeding should be refused.  In particular, the length of delay of 31 days is not insignificant in the context of a 28 day limitation period for the commencement of proceedings.  Significantly, there is no satisfactory explanation for the delay, there is no arguable case for review and the extension would cause, I find, material prejudice to the practitioners. 

Is leave required in respect of all matters in the Committee's decision?

1. In light of the decision in relation to the extension of time, this question does not arise. The parties did make some submissions in relation to the proper interpretation and application of s 410 and s 435 of the LP Act in particular. The difficulty, however, in this case is that the Committee clearly characterised the complaints as two complaints, although related, and dealt with them separately. Furthermore, the Committee only made a specific finding under s 435(2) in relation to the second complaint. In those circumstances, had this issue arisen for determination I would have found that leave would only be required in relation to Complaint 2, as I have referred to it. However, given that the issue does not arise, I express no considered view in relation to the proper interpretation of the provisions to which I have referred, leaving that question for discussion and determination on another day.

Order

1. For these reasons I make the following order:

   The application for an extension of time under r 10 of the State Administrative Tribunal Rules 2004 (WA) in which to seek review of the decision of the first respondent to dismiss complaints made by the applicant against the second and third respondents under s 435 of the Legal Profession Act 2008 (WA) is dismissed.

I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUDGE D R PARRY, DEPUTY PRESIDENT