Thillagaratnam and Law Complaints Officer As the Delegate of the Legal Profession Complaints Committee & Anor
[2023] WASAT 118
•5 DECEMBER 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: THILLAGARATNAM and LAW COMPLAINTS OFFICER AS THE DELEGATE OF THE LEGAL PROFESSION COMPLAINTS COMMITTEE & ANOR [2023] WASAT 118
MEMBER: JUDGE H JACKSON, DEPUTY PRESIDENT
DR S WILLEY, SENIOR MEMBER
MS M CONNOR, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 5 DECEMBER 2023
FILE NO/S: VR 61 of 2022
BETWEEN: SCOTT THILLAGARATNAM
Applicant
AND
LAW COMPLAINTS OFFICER AS THE DELEGATE OF THE LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
DARREN ZUSMAN
Second Respondent
MARK MACLENNAN
Third Respondent
PAUL MENDELOW
Fourth Respondent
Catchwords:
Vocational regulation - Legal practice - Review of decision dismissing complaint - Transitional provisions - Whether the applicant has a right to make a complaint - Complaint made by guarantor of daughter's fees - Daughter as client withdrew her own complaints and asked for no more complaints to be considered - Grounds of complaint either misconceived or vexatious and unreasonable
Legislation:
Competition and Consumer Act 2010 (Cth), Sch 2, s 18
Legal Practitioners Act 1893 (WA)
Legal Profession Act 2008 (WA), s 252, s 253, s 267, s 268, s 270, s 295, s 409, s 410, s 410(1), s 410(2), s 410(4)(c), s 412, s 413(1), s 414, s 415, s 415(1), s 415(1)(b), s 415(2), s 415(3), s 421(2), s 421(3), s 424, s 425, s 426, s 428, s 435, s 435(2), s 435(2)(a), s 573
Legal Profession Uniform Law (WA), s 301(2)
Legal Profession Uniform Law Application Act 2014 (Vic), Sch 1
Legal Profession Uniform Law Application Act 2022 (WA), s 6(2), s 50(2), s 260, s 269, s 272, s 318, s 319, s 319(1)(a)(ii), s 319(2)
State Administrative Tribunal Act 2004 (WA), s 18, 29(1), s 29(3), s 27(1), s 27(2), s 60(2)
Result:
Application for leave to review the decision is refused
Application is dismissed
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| First Respondent | : | N/A |
| Second Respondent | : | N/A |
| Third Respondent | : | N/A |
| Fourth Respondent | : | N/A |
Solicitors:
| Applicant | : | In Person |
| First Respondent | : | Legal Profession Complaints Committee |
| Second Respondent | : | Bennett + Co |
| Third Respondent | : | Bennett + Co |
| Fourth Respondent | : | Barry Nilsson Lawyers (WA) |
Cases referred to in decision(s):
Ardizzone v Valentino Nominees Pty Ltd [2019] WASC 55
B and Law Complaints Officer as delegate of the Legal Profession Complaints Committee [2023] WASAT 83
Chen and Law Complaints Officer [2022] WASAT 26
Forrest & Forrest v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2018] WASCA 32
Fox v Percy (2003) 214 CLR 118
Hismelt Corporation Pty Ltd v Pratt [2007] WASCA 192
Laurent and Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165
Lawson and Legal Profession Complaints Committee [2019] WASAT 36
Lawson and Legal Profession Complaints Committee [2019] WASAT 36
Lee and Law Complaints Officer, as the Delegate for the Legal Profession Complaints Committee [2022] WASAT 53
Legal Profession Complaints Committee and Carlose [2012] WASAT 104
Malabar and Law Complaints Officer as delegate of the Legal Profession Complaints Committee [2023] WASAT 80
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83
Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245
The Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198
The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50
Thillagaratnam v Doan [2022] WASC 185
Westworth v De Montfort (1988) 15 NSWLR 348
Wilson v Metaxas [1989] WAR 285
Winzer and Roberts-Smith [2011] WASAT 140
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction and Overview
In this proceeding, Mr Scott Thillagaratnam (applicant) seeks the review of a decision made on 17 June 2022 by the Law Complaints Officer as delegate of the Legal Profession Complaints Committee (first respondent) to dismiss his (the applicant's) complaint against the second to fourth respondents (reviewable decision), each of whom are legal practitioners (the practitioners).
The application for review of the reviewable decision was filed under s 319 of the Legal Profession Uniform Law Application Act 2022 (WA) (Application Act). That section provides that, in circumstances which are satisfied in this case, an application such as this is to be determined under s 435 of the Legal Profession Act 2008 (WA) (LP Act), which was otherwise repealed on 1 July 2022 by the Application Act.
Each of the practitioners were either engaged, or were proposed to be engaged, by or on behalf of the applicant's daughter (Sarah) to act on her behalf in legal proceedings. The applicant was the guarantor of Sarah's legal costs under a costs agreement entered into with Bennett + Co, the firm of solicitors at which the second and third respondents practised.
Following the termination of her retainer with Bennett + Co, Sarah brought complaints against each of the practitioners, which were later withdrawn. She later asked that no further complaints be accepted in her name for these matters.
As we set out below in more detail, the first respondent understood the applicant's complaint to comprise nine separate, but related, grounds.
The first respondent considered each of the nine grounds of the applicant's complaint and dismissed them pursuant to s 415(1)(b)[1] of the LP Act. In each case he found them misconceived.
[1] The first respondent's reference to 's 435(2)(b)' in the reviewable decision is, in our view, clearly a typographical error; it is plain that it should be a reference to s 435(2)(a) which provides for the Legal Profession Complaints Committee to find the complaint unreasonable. Nothing turns on this. It is, in our view, plainly a 'slip'.
He also found that each ground was unreasonable.
As a result of the latter finding, the applicant requires leave before we can review the reviewable decision.[2]
[2] LP Act, s 435(2)(a).
For the reasons which we have set out below, we refuse the grant of leave because:
(a)in our view, each of the nine grounds are both unreasonable and, either, misconceived or vexatious. Accordingly, we do not regard the first respondent's decision to dismiss the applicant's complaint to be wrong or even attended with sufficient doubt to justify the grant of leave; and
(b)no substantial injustice will be occasioned if the decision to dismiss the complaint is left unreversed.
It follows that leave to review the reviewable decision is refused and the application for review must therefore be dismissed.
Proceedings on the documents
As indicated above, and for reasons which we set out below, s 319 of the Application Act has the result that we continue to have jurisdiction to resolve the question of leave under s 435 of the LP Act notwithstanding the repeal of the LP Act on 1 July 2022. Apart from s 435 of the LP Act providing that leave to review the reviewable decision is required, neither of those sections identify how such an application is to be resolved.
In that regard, the LP Act is otherwise entirely silent as to the procedures which may or must be employed by the Tribunal.
To the extent that it might be said to apply to this case,[3] s 301 of the Uniform Law provides that, subject to any procedural requirements (i.e. any of the Tribunal's procedural requirements), the Tribunal may determine proceedings without a formal hearing but is bound by the rules of procedural fairness.[4]
[3] Section 319 of the Application Act provides that we must determine the application for review pursuant to s 435 of the LP Act. Further, the regime established under the Uniform Law makes no provision for review of decisions made by the successor to the LPCC and its delegate to dismiss a complaint. Therefore, there is some considerable doubt as to the extent to which the Uniform Law might apply in this case, if at all.
[4] The Uniform Law is set out in Sch 1 to the Legal Profession Uniform Law Application Act 2014 (Vic). It applies as a law of this State, as if it were an Act, by virtue of s 6(2) of the Application Act.
Section 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) permits the Tribunal to determine matters on the basis of the documents without the parties participating in a hearing, where the Tribunal considers it is appropriate to do so.
By Orders made 2 May 2023, the President ordered that the Tribunal 'will determine the question of leave to review, and if leave is granted the review itself, entirely on the documents'.
The parties have since, and until very recently, proceeded on that basis, including by the filing and serving of documents and submissions.
However, by letter filed 31 October 2023, the applicant, while accepting that his application for leave could be determined on the papers, submitted that, if leave is granted, s 27(1) of the SAT Act requires that the application for review be determined following an in‑person hearing. He submitted that result follows because that section provides that the review of a reviewable decision 'is to be by way of a hearing de novo'.
Because we have determined that leave should not be granted it is, strictly speaking, not necessary for us to determine this issue. However, the point is short and can be quickly described.
The description of the review as a hearing de novo in s 27(1) of the SAT Act does not require us to conduct an in-person hearing, such that we are unable to determine the matter on the papers.
Rather, the term 'hearing de novo' is one which may be distinguished from other terms describing other forms of appeal.[5] Such distinctions do not go to the manner in which the matter may be determined (i.e. by way of hearing or on the papers) but, rather, the relevant legal test for error or, indeed, whether there is the need to demonstrate error at all. So, for example, in Allesch v Maunz,[6] it was held that:
For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error.
[5] See, for example, Fox v Percy (2003) 214 CLR 118 at [20] (Gleeson CJ, Gummow and Kirby JJ).
[6] Allesch v Maunz (2000) 203 CLR 172 at [23] (Gaudron, McHugh, Gummow and Hayne JJ). Internal citations omitted.
The President's Orders of 2 May 2023 represent her Honour's determination that this is a case where, pursuant to s 60(2) of the SAT Act, it is appropriate to 'conduct … [this] part of [this] proceeding entirely on the basis of documents'. To the extent that it is necessary to do so, we respectfully agree.
The documents on which the review is to be determined are:
(a)the reviewable decision;
(b)the application for review of the reviewable decision dated 22 July 2022[7] consisting of the formal, completed, application with two attachments, together with 69 Annexures which were filed on 5 and 7 August 2022 (Application for Review);
[7] The applicant sought to file the application for review on 15 July 2022. He did so by email which, he was advised at the time by the Tribunal, was inadequate for the purpose. On 22 July 2022 he e-lodged the application and paid the relevant fee. It was not until both those steps were taken that the application was made: State Administrative Rules 2004 (WA) (SAT Rules), r 7. The date of filing was greater than the 28 days from the date of the decision provided by the SAT Rules (r 9) and an extension of the time was therefore required. No objection was taken to this course by the respondents and the extension was granted on 6 November 2023 on the Tribunal's own initiative, pursuant to rule 10 of the SAT Rules.
(c)the Applicant's Amended Statement of Issues, Facts and Contentions dated 24 February 2023 (Applicant's SIFC);
(d)the applicant's written submissions dated 24 February 2023 (Applicant's Submissions);
(e)the applicant's Bundle of Documents dated 24 February 2023 (Applicant's Bundle);
(f)the first respondent's Section 24 Bundle of Documents filed in two volumes on 24 August 2022 (BOD);
(g)the first respondent's written submissions dated 28 March 2023;
(h)Affidavit of Sophie Paige Muskett, affirmed 28 March 2023 (Muskett Affidavit);
(i)the second and third respondents Statement of Issues, Facts and Contentions dated 17 April 2023 (Second & Third Respondents' SIFC);
(j)the written submissions of the second and third respondents in opposition to the application for leave dated 17 April 2023 (Second & Third Respondents' Submissions);[8]
(k)the fourth respondent's Statement of Issues, Facts and Contentions dated 17 April 2023 (Fourth Respondent's SIFC); and
(l)the written submissions of the fourth respondent dated 9 June 2023 (Fourth Respondent's Substituted Submissions).
[8] By letter of 11 May 2023, the third respondent advised that the second and third respondent did not intend to file any further evidence or submissions.
Jurisdiction of the Tribunal
The applicant made his complaint about the conduct of the practitioners to the Legal Profession Complaints Committee (LPCC), pursuant to sections 409 and 410 of LP Act.
The first respondent dismissed the complaint on 17 June 2022 pursuant to s 415(1)(b) of the LP Act.[9] In doing so, he found that each ground[10] was misconceived. The first respondent also described each ground as 'unreasonable', such that under s 435(2)(a) of the LP Act leave is required prior to us reviewing the reviewable decision.
[9] BOD, Volume 1, pages 1 – 3.
[10] The situation as to the sixth ground requires some explanation. See below at paras 225 – 229.
The applicant applied on 22 July 2022 to the Tribunal for leave to apply for a review of the reviewable decision. To do so, the applicant completed a formal application form, which identified the relevant provision under which the application was brought, as s 319 of the Application Act. He also attached a lengthy document which stated that leave was sought pursuant to s 435 of the LP Act.
Both statements are correct.
On 1 July 2022, the Application Act commenced.[11] Section 260(a) of the Application Act repealed the LP Act on and from the same date.
[11] That date is known in the Act as the 'commencement day': See Western Australia, Government Gazette, WA, No. 94, 30 June 2022, 3921.
Section 318 of the Application Act provides that if, before that date:
(a)the LPCC had made a decision to dismiss a complaint under the LP Act;[12]
(b)a 'person aggrieved' had not applied for a review of the decision under s 435(1) of the LP Act; and
(c)the person aggrieved was not precluded from seeking a review under the LP Act for any reason, including the expiry of a relevant deadline,
then the person aggrieved may apply to the Tribunal for a review of the decision under s 319 of the Application Act.
[12] In s 318 of the Application Act, the LP Act is referred to as the 'old Act' – see definition of 'old Act' in s 3 of the Application Act.
The effect of ss 319(1)(a)(ii) and 319(2) of the Application Act is that if the person aggrieved makes an application for review after 1 July 2022 under s 318 of the Application Act, then s 435 of the LP Act 'applies to the application for a review of the [LPCC's] decision as if that section were not repealed'.
Section 435(2)(a) of the LP Act provides that where the LPCC, 'in its reasons for its decision, specifically finds the complaint … to be trivial, unreasonable, vexatious or frivolous', the aggrieved person cannot apply to the Tribunal for review of the decision without the leave of the Tribunal.
In his reasons for decision, the first respondent, as delegate for the LPCC,[13] dismissed each of the nine grounds of complaint under s 415(1)(b) of the LP Act. In doing so, he stated in each case that he considered the ground to be misconceived.[14]
[13] The relevant Instrument of Delegation, made 4 December 2012, (BOD, Volume 1, page 4) shows the first respondent as the authorised delegate of the LPCC to make all decisions of the LPCC save for certain, identified, decisions which do not include the sections under which the decision in question in this case was made.
[14] As noted in footnote #10, the situation as to the sixth ground requires some explanation.
In addition, the final paragraph of the first respondent's reasons prior to the Conclusion states as follows:
I also find that these complaints to be unreasonable, as described under section 435(2)(b) [sic – s 435(2)(a)] if [sic – of] the LPA [i.e. the LP Act], in the circumstances where the cost assessment has concluded (where many of your concerns were relevant), and where you are aware of Sarah's position on complaints regarding this matter where she was the client of the practitioners.[15]
[15] BOD, Volume 1, page 3.
In our view, and we find, that the first respondent's reference to 'these complaints' is a reference to all of the nine grounds of complaint. Accordingly, by the above paragraph, the first respondent 'specifically' found that each of the nine grounds of the complaint is 'unreasonable'.
The reviewable decision therefore triggers the need for leave pursuant to s 435(2)(a) of the LP Act. We note, however, that that result does not follow from the specific finding that each ground is misconceived, because that is not one of the terms referred to in s 435(2)(a).[16]
[16] Chen and Law Complaints Officer [2022] WASAT 26 at [83]; Lee and Law Complaints Officer, as the Delegate for the Legal Profession Complaints Committee [2022] WASAT 53 at [63] – [65].
The first respondent's finding of unreasonableness appears to have two bases for most of the grounds.
First, the first respondent found that the pursuit of those grounds which are concerned with costs was unreasonable because the Supreme Court has previously taxed (assessed) the costs billed by Bennett + Co for the work that it did.
Secondly (and this aspect covers all of the grounds, both those that do and those that do not concern costs), the first respondent found that it was unreasonable for the applicant to pursue the complaint in circumstances where Sarah, who was the client, has expressed a firm view that she does not wish to pursue either the complaints that she initially brought, or any others.
Our task, therefore, is to determine whether or not to grant the applicant leave to review the reviewable decision. Only if leave is granted, does our task extend to the review of the reviewable decision itself.
Does the applicant have a right to make a complaint?
The immediately preceding paragraphs raise a fundamental matter: whether or not the applicant had a right to make a complaint against the practitioners.
Unusually in the context of Australian legislation regulating the legal profession, which otherwise provides open standing to make a complaint,[17] s 410(1) of the LP Act expressly identifies, and thereby limits, those who may make a complaint. It includes in the list of those entitled to do so 'any other person who has or had a direct personal interest in the matters alleged in the complaint'.
[17] G E Dal Pont, Lawyer Discipline (LexisNexis Butterworths, 2020) 7.4. The concept of a 'direct personal interest' as limiting the right to make a complaint appears to have first appeared in the Legal Practitioner's Act 1893 (WA) as a result of amendments made in 1992.
The statutory language therefore represents a deliberate choice by Parliament to exclude from the list of possible complainants those with an indirect personal interest in the matters alleged in the complaint.
Professor Dal Pont opines that the language chosen 'serves to exclude interested busybodies as well as, it seems, relations or associates of a person who may otherwise have standing'.[18]
[18] G E Dal Point, Lawyer Discipline (LexisNexis Butterworths, 2020) 7.4.
The Macquarie Dictionary (online), gives the following (relevant) definitions to the term 'direct' when used as an adjective:
(a)proceeding in a straight line or by the shortest course; straight; undeviating; not oblique.
(b)without intervening agency; immediate; personal.
(c)going straight to the point; straightforward; downright.
It also gives the following definitions to the term 'indirect', when used as an adjective:
(a)not direct in space; deviating from a straight line: an indirect course in sailing.
(b)coming or resulting otherwise than directly or immediately, as effects, consequences, etc.: an indirect advantage.
(c)not direct in action or procedure; not straightforward; crooked: indirect methods.
(d)not direct in bearing, application, force, etc.: indirect evidence.
In the reviewable decision, the first respondent stated:
You raise this complaint in your own name. Although you were not the client, you had a limited interest in the matter by way of being a guarantor to the costs agreement.[19]
[19] BOD, Volume 1, page 1.
With respect, whether or not the complainant had a limited interest is not the point; the question is whether he had a 'direct interest'. We are far from convinced that he did.
As noted above, the applicant's interest in this matter arises because he is the guarantor of Sarah's liability for legal fees pursuant to her costs agreement with Bennett + Co. The costs agreement was executed by Sarah as the client, and the applicant as guarantor, on 23 July 2020.
A contract of guarantee is, subject to any qualifications made by the particular instrument, 'a collateral contract to answer for the debt, default or miscarriage of another who is or is contemplated to be or to become liable to the person to whom the guarantee is given'.[20]
[20] Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 (Sunbird) at [254] (Mason CJ).
The guarantor's obligation to perform is therefore contingent upon the default of the debtor. As Mason CJ held in Sunbird:
In their endeavours to distinguish between a guarantee and an indemnity the courts have emphasized the difference between the guarantor's secondary liability and the indemnifier's primary liability.[21]
[21] Sunbird at [254].
On that basis, there appears to be a proper basis to find that the guarantor of a client's liability for legal fees under a costs agreement with a legal practitioner does not have a 'direct' personal interest in that costs agreement because the interest is secondary, or indirect, rather than primary or direct.
Using the Macquarie Dictionary definitions of the terms above, the applicant's interest appears to us to arise through Sarah's intervening liability; his involvement arises otherwise than directly or immediately.
In so saying, we acknowledge that Registrar Griffin joined the applicant to the costs assessment proceedings in which he participated as a 'third party payer'. That term is defined in the LP Act,[22] which provides such a person with not inconsiderable rights as to costs disclosure,[23] and costs assessment.[24]
[22] LP Act, s 252 and s 253.
[23] LP Act, s 268 and s 270.
[24] LP Act, s 295.
In our view, the fact that a person is a third party payer does not, necessarily, mean that they have a 'direct personal interest' in the matters alleged in the complaint.
The two concepts are, in our view, quite distinct. And had it been the Parliament's intention to incorporate one into the other it could easily have done so; there are more than 60 uses of the term 'third party payer' in the LP Act in the context of costs.
We also note the Full Court's decision in De Alwis.[25] In that case the Full Court dealt with both an application by the LPCC to strike off Mr De Alwis, following a finding by a predecessor to this Tribunal that he was guilty of professional misconduct under the Legal Practitioners Act 1893 (WA), as well as an application by Mr De Alwis for a (very considerable) extension of time to appeal that finding.
[25] The Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198 (De Alwis).
In considering the latter, the Court addressed the practitioner's prospects of success, should the extension be granted. It addressed each of his proposed grounds of appeal, one of which was that the complaint had been brought by the client's wife, rather than the client, and that she lacked a direct personal interest.
The grounds of complaint included that the practitioner had taken funds from the client on the basis that he would do certain work, but the work had not been done and he had not returned the funds.
The Court held that the complainant 'was a person who had a direct personal interest in the matter, the funds in question having been paid by her and her husband'.[26]
[26] De Alwis at [90].
In our view, the Full Court's decision in De Alwis may be distinguished from the present case because, although the applicant has paid Sarah's taxed costs, he did so due to his indirect liability as guarantor, rather than by (directly) paying a sum into trust ahead of the carrying out of any work.
In our view, however, at least in this case, the question of standing must be addressed in relation to each ground, rather than as a whole. That is because of the language of s 410, which directs attention to whether the complainant has a 'direct personal interest in the matters alleged in the complaint'.
We have, therefore, addressed the issue in relation to each ground in turn although, as will be seen, we have not made a determinative finding in those instances where the situation is not clear and obvious to us. That is because it is not necessary to do so given our other findings.
Principles relevant to the grant of leave and the review
As we have set out above, because the first respondent found each ground of the complaint to be unreasonable, leave to review the reviewable decision is required in relation to each ground.[27]
[27] LP Act, s 435(2).
In Winzer and Roberts-Smith[28] Chaney J stated that the question of whether to grant leave under s 435 of the LP Act is to be determined in accordance with the principles set out by the Full Court of the Supreme Court in Wilson.[29] Those principles are:
(1)It must be shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave.
(2)In addition, it must be established that a substantial injustice would be done by leaving the decision unreversed. What constitutes a substantial injustice must depend on all the circumstances of the case.
[28] Winzer and Roberts-Smith [2011] WASAT 140 at [8]. The principles were more recently cited with approval in Lawson and Legal Profession Complaints Committee [2019] WASAT 36 at [21].
[29] Wilson v Metaxas [1989] WAR 285 (Wilson).
In Hismelt,[30] the Court of Appeal stated that the principles referred to in Wilson were not exhaustive and that leave may be granted if, in all the circumstances, it is in the interests of justice to do so.[31]
[30] Hismelt Corporation Pty Ltd v Pratt [2007] WASCA 192 (Hismelt).
[31] Hismelt at [14].
Whilst it is the case, as was noted above, that when exercising its review jurisdiction, the Tribunal conducts a hearing de novo and is not confined to finding error in the decision on review, instead being required to reach the correct and preferable decision as at the date of the decision upon the review,[32] that is not so where leave is required. In such a case, the above authorities are clear that leave will only be granted where the Tribunal is satisfied that the reviewable decision is wrong, or at least attended with sufficient doubt as to justify the grant of leave, and that a substantial injustice would be done if the decision were left unreversed.
[32] SAT Act, s 27(2).
Also, while in the case of a review of a decision, the applicant does not bear any onus to show that a departure from the reviewable decision is justified,[33] that is not the case where leave is required.
[33] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83 at [121] and [128] citing Forrest & Forrest v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2018] WASCA 32 at [61].
Rather, where leave is required, as in the present case, the applicant bears the onus of establishing both that the decision is wrong, or sufficiently doubtful so as to justify the granting of leave, and that substantial injustice would be done if the decision were not reversed.[34]
[34] Malabar and Law Complaints Officer as delegate of the Legal Profession Complaints Committee [2023] WASAT 80 at [26].
The correct name of the first respondent
The application for review names the LPCC as the first respondent. However, the reviewable decision was made by the Law Complaints Officer in the exercise of delegated authority.
Orders substituting the first respondent for the LPCC were made on 9 August 2022.[35]
[35] Following the practice described in Chen at [70].
We agree and, with respect, adopt, the Tribunal's reasons in B[36] as to why that name continues to be the correct name of the respondent in this proceeding despite the fact that the Application Act altered the name of the LPCC to the Legal Services and Complaints Committee[37] and appears to have abolished the office of the Legal Complaints Officer.[38]
[36] B and Law Complaints Officer as delegate of the Legal Profession Complaints Committee [2023] WASAT 83 (B) at [61] – [73].
[37] Application Act, s 269.
[38] Application Act, s 272.
The relevant legal framework
The applicant's complaint about the practitioners was made under Part 13 of the LP Act. Relevantly the statutory regime in place under that Part is as follows.[39]
[39] Although the LP Act was repealed as and from 1 July 2022 various provisions continue to have effect in various ways, with the present case as an example. For simplicity's sake, the following discussion uses the present tense.
Section 409 provides that complaints may be made about the conduct of an Australian legal practitioner.
As noted above, s 410(1) provides that such a complaint may be made by certain persons and bodies including, and relevantly, any person who has or had a 'direct personal interest in the matters alleged in the complaint'. Section 410(2) of the LP Act provides that a complaint may be made directly to the LPCC or through the Law Complaints Officer. Section 410(4)(c) requires the person making the complaint to describe the alleged conduct the subject of the complaint.
Section 412 of the LP Act provides that the LPCC may require a person making a complaint to provide further details about the complaint, or to verify details about the complaint by statutory declaration, or both.
Section 414 of the LP Act provides that a practitioner is entitled to make submissions (within a specified time) in relation to the complaint, or its subject matter, or both, having been notified of the complaint under s 413(1) of the LP Act.
As also noted above, s 415 permits the dismissal of a complaint (including in circumstances where an investigation has not been completed where the LPCC forms the view that the complaint requires no further investigation)[40] for various reasons including, relevantly, where the complaint is vexatious, misconceived, frivolous or lacking in substance.[41]
[40] LP Act, s 415(3).
[41] LP Act, s 415(1)(b).
Section 415(2) of the LP Act provides that the LPCC must dismiss a complaint in particular circumstances, none of which are applicable here.
Where a complaint is not dismissed under s 415(1) or s 415(2) of the LP Act, the LPCC must proceed to complete an investigation into the complaint, pursuant to s 421(2), but subject to s 421(3) of the LP Act.
Section 424 provides that, upon completion of an investigation into a complaint, the LPCC may decide to dismiss the complaint under s 425, take action under s 426 or refer the matter to the Tribunal under s 428.
Section 425 requires the LPCC to decide to dismiss a complaint, amongst other things, where it is satisfied that there is no reasonable likelihood that the Tribunal would find the practitioner guilty of unsatisfactory professional conduct or professional misconduct.
Section 426 provides a range of (somewhat moderate) disciplinary actions available to the LPCC against the practitioner the subject of a complaint if it is satisfied that certain criteria are satisfied.
Section 435 creates a right of review of a dismissal of a complaint or of a decision to deal with a complaint summarily. It provides:
(1)Subject to subsection (2), a person aggrieved by –
(a)a decision of the Complaints Committee to dismiss a complaint; or
(b)a decision made … under section 426,
may apply to the State Administrative Tribunal for a review of the decision.
(2)If the Complaints Committee, in its reasons for its decision, specifically finds the complaint –
(a)to be trivial, unreasonable, vexatious or frivolous; or
(b)in the case of a complaint purporting to be made under section 410(1)(e), to be a matter in which the complainant does not have, or did not have, a direct personal interest,
the person aggrieved cannot apply to the State Administrative Tribunal for a review of the decision without the leave of the Tribunal.
As noted above, the first respondent dismissed the complaint under s 415(1)(b) on the basis that each ground was 'misconceived'. He also found that each of the components of the complaint were unreasonable.
In Laurent,[42] Deputy President Pritchard (as her Honour then was) held that the term 'misconceived' connotes a 'misunderstanding of legal principle'.[43]
[42] Laurent and Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 (Laurent).
[43] Laurent at [23].
The expression 'unreasonable' is not otherwise defined. It has been held, in similar contexts, to bear its ordinary meaning. Relevantly, the Macquarie Dictionary defines it to mean:
(a)not reasonable; not endowed with reason;
(b)not guided by reason or good sense;
(c)not based on or in accordance with reason or sound judgement; and
(d)exceeding the bounds of reason; immoderate; exorbitant.
By s 573 of the LP Act, the LPCC was empowered to delegate any of its powers or duties to the Law Complaints Officer, other than those powers under s 426 of the LP Act. The applicant did not contest the validity of the reviewable decision in this regard.
Assuming leave were to be granted by the Tribunal, in dealing with the review, standing in the shoes of the first respondent, we would therefore be required to determine:[44]
(a)whether the information contained in the complaint and the evidence obtained thus far in the investigation warrant the completion of the investigation of the complaint;[45] or
(b)whether the complaint is vexatious, misconceived, frivolous, lacking in substance and should be dismissed;[46] or
(c)whether the complaint is unreasonable;[47] or
(d)whether the complaint requires no further investigation and should be dismissed.[48]
[44] Chen at [94] – [95].
[45] LP Act, s 421(2).
[46] LP Act, s 415(1)(b).
[47] LP Act, s 435(2).
[48] LP Act, s 415(3).
Background to the making of the complaint
While the parties disagree about much, it would appear that what follows is either uncontentious or is supported by the objective documentary evidence. In any event, we are satisfied with the following facts, which we accordingly find.
In or about 2018 Sarah commenced proceedings in the Supreme Court.[49] Her solicitor at that time was Mr Hayden Robinson, who retained the fourth respondent as counsel.
[49] See Thillagaratnam v Doan [2022] WASC 185.
In July 2020, with the matter listed for trial later in that year, Sarah approached Bennett + Co.[50]
[50] Bennett + Co is now called Bennett. We have used the name as it was at the time.
Bennett + Co entered into a costs agreement with Sarah dated 23 July 2020, which the applicant also signed as guarantor on that date (costs agreement).[51] It provided that the second respondent would have 'primary conduct' of the matter. The third respondent was a principal of Bennett + Co and was signatory of the cover letter.
[51] BOD, Volume 1, pages 13 – 23 and 199 – 200.
Bennett + Co acted for Sarah for a brief period between July and mid‑August 2020.
On or about 14 August 2020 the retainer was terminated and Bennett + Co subsequently rendered an invoice of the same date to Sarah for amounts totalling $11,549.56 including GST and disbursements.[52]
[52] BOD, Volume 1, pages 54 – 57.
On 17 September 2020 Bennett + Co applied for assessment of its costs under the LP Act (Costs Application).[53]
[53] BOD, Volume 1, pages 119 – 125.
On 19 January 2021, the applicant was joined as second respondent to the Costs Application.[54]
[54] BOD, Volume 2, page 1734.
On 6 May 2021 a hearing in the Costs Application was held before Registrar Griffin at which the applicant appeared (as second respondent) in his capacity as third party payer.[55]
[55] See the definition of third party payer: LP Act, s 253.
By order of Registrar Griffin in the Costs Application proceedings dated 1 June 2021, Bennett + Co's bill of costs was taxed and allowed in the sum of $8,095.[56]
[56] BOD, Volume 2, page 1735.
On 17 September 2020, (i.e. the day on which Bennett + Co applied for its costs to be taxed), Sarah emailed the LPCC by way of complaint against the second respondent.[57]
[57] BOD, Volume 1, pages 5 – 12.
What followed was correspondence accurately described by the first respondent as 'extensive'.[58] That correspondence included several emails from the applicant (i.e. not Sarah) totalling more than 500 pages and appears to have expanded the scope of the complaint to include Mr Robinson and the fourth respondent.
[58] BOD, Volume 1, page 470.
On 10 December 2021, the LPCC wrote to Sarah,[59] copied to the applicant. The letter was signed by the Senior Legal Officer and Manager of the Rapid Resolution Team (RRT). The author said that she had 'extensively reviewed the information provided' and said that the following parts of the letter would set out: (1) her understanding of the complaints made against Mr Robinson, the second respondent and the fourth respondent; (2) the manner in which she proposed to deal with the complaints; and (3) some further information required from Sarah in order to progress her complaints.
[59] BOD, Volume 1, pages 470 – 475.
In addition, the letter of 10 December 2021 addressed the position of the applicant, saying that 'it is far from established that [the applicant] has the requisite standing' to bring a complaint but that, '[i]n order to bring these complaints to some final disposition' the author had treated 'all the complaints that have been made, as having been made by [Sarah]'.[60]
[60] BOD, Volume 1, pages 470 – 471.
The letter then set out 10 grounds of complaint against Mr Robinson, 7 against the fourth respondent and 5 against the second respondent. It also noted that concerns were raised against the third respondent which, it was said, did not constitute professional conduct issues.
In relation to the complaints against Mr Robinson and the fourth respondent, the letter sought further information about the Costs Application.[61] In relation to the complaints against the second and fourth respondents, the author expressed a preliminary view as to each ground, some of which she grouped with others of common themes. The preliminary view expressed was that each ground or group of grounds was likely to be dismissed. She described two grounds as misconceived or unreasonable, several as 'not substantiated' and one as having 'no evidence' to support it.[62]
[61] BOD, Volume 1, page 472.
[62] BOD, Volume 1, pages 473 – 474.
In response to the RRT's letter of 10 December 2021, the applicant sent an email on 27 December 2021 which he asked to be treated 'as a Complaint filed on behalf of Sarah' against the practitioners. The email itself consisted of 107 paragraphs, spread over 16 pages, and included 34 attachments totalling nearly 300 pages, including an annotated (by way of highlighting) copy of the full transcript of the Costs Application hearing on 6 May 2021 (183 pages).[63]
[63] BOD, Volume 1, pages 476 – 775.
By contrast, Sarah wrote on 10 January 2022 to 'confirm' that the complaints addressed in the RRT letter were 'hereby withdrawn'.[64]
[64] BOD, Volume 2, pages 776 – 777.
On 12 January 2022, the applicant sent the LPCC an email of ~35 pages (189 paragraphs) which attached 62 documents (some of which duplicated what had previously been sent) totalling ~210 pages.[65]
[65] BOD, Volume 2, pages 1140 – 1387.
Further lengthy emails were sent by the applicant to the first respondent on 24 January 2022, 26 January 2022 and 27 January 2022 (twice).[66] Those emails purported to be complaints made by the applicant on behalf of Sarah.
[66] BOD, Volume 2, pages 1388 – 1574.
What followed was a series of email exchanges between the LPCC, the applicant and Sarah in February 2022 which resulted in Sarah advising the LPCC on 22 February 2022 to '[p]lease disregard all emails from [the applicant] if he attempts to submit complaints on [her] behalf]'.[67]
[67] BOD, Volume 2, page 1605.
Following that, further correspondence ensued on 23, 25 and 28 February 2022 between the applicant and the LPCC in which the applicant raised the issue of his 'standing' to bring a complaint, and Mr Wescombe, Acting Manager of the RRT, confirmed that the applicant would 'need' to establish that he (the applicant) was a client of the practitioners and that he had a 'direct personal interest to support a complaint.'[68]
[68] BOD, Volume 2, page 1637.
By email dated 31 March 2022, the applicant filed with the first respondent a document containing complaints against the second, third and fourth respondents, which are the complaints that are now the subject of these proceedings. That email ran to 21 pages and attached a further 61 pages of annexures.[69]
[69] BOD, Volume 2, pages 1653 – 1735. Amongst other things, the applicant spent more than a page seeking to demonstrate that he had a 'direct personal interest'. In substance this argument goes no further than to say that he was the guarantor of Sarah's fees under the costs agreement.
On 8 June 2022, Mr Wescombe, as the LPCC's Manager, Dispute Resolution, wrote to the applicant setting out his preliminary view in relation to each of nine grounds of complaint. It would appear that those nine grounds were synthesised by Mr Wescombe from the applicant's email of 31 March 2022.[70] No party has taken issue with that synthesis or the description of those grounds or suggested that they do not accurately reflect the content of the applicant's email of 31 March 2022.
[70] BOD, Volume 2, page 1736 – 1740.
In that letter, Mr Wescombe stated that he had formed his preliminary view having considered the 'information [the applicant had] provided, together with previous response[s] from the practitioners' but that he had not contacted the practitioners as their responses had been obtained over the previous 2 years in relation to previous complaints made by the applicant and Sarah. Mr Wescombe's letter does not address the issue of the applicant's standing.
The letter concludes with Mr Wescombe saying that he had 'not identified any possible unsatisfactory professional conduct (or professional misconduct) that requires further investigation.' Rather, he said that the 'complaints appear misconceived and frivolous in nature.' He invited the applicant to 'make any comments' or provide any 'additional information' by 24 June 2022.[71]
[71] BOD, Volume 2, page 1740.
In response, on 9 June 2022, the applicant wrote an uncharacteristically brief email which thanked Mr Wescombe for his 'clarification', said that he considered it 'pointless' to respond to Mr Wescombe's preliminary view and said that he would 'await the LPCC's dismissal of [his] Complaint'.[72]
[72] BOD, Volume 2, page 1741.
The first respondent's letter of 17 June 2022, which we have previously described, and which amounts to the reviewable decision, was then sent.
Grounds 1 – 2
[The second respondent] and [the fourth respondent] knew, as early as 21 July 2020, that Sarah had no arguable case
[The second respondent] and [the third respondent] entered into a costs agreement with Sarah and [the applicant] whilst knowing that Sarah's case had no merit or prospect of a successful outcome
Both Mr Wescombe's letter of 8 June 2022 and the first respondent's letter of 17 June 2022 (i.e. the reviewable decision) concluded that the applicant has put forward no evidence to support his claim that the second and fourth respondents knew, prior to the execution of the costs agreement on 23 July 2020, that Sarah's case had no merit or prospect of success. For the following reasons, we agree.
There appears to be two (and possibly three) bases contained in his email of 31 March 2022 for these grounds.
By the first possible basis, the applicant says that on 21 July 2020 the second respondent reviewed two case authorities. Having done so, the applicant says, it is 'reasonable to assume' that the second respondent:
… would have concluded that on the facts of [Sarah's] case, she did not have any reasonable prospects of success in her claim for a rescission of the Contract.[73]
[73] BOD, Volume 2, page 1656.
It is not clear how the applicant says that such an assumption would or should follow as a result of simply reading the two cases in question, particularly given that the process of engaging with Sarah was in its earliest possible stages.
It would appear from the material before us that the second respondent read the two cases ahead of meeting, or even speaking to, either Sarah or the applicant in any meaningful way.
The two cases went to the question whether the sale of residential real estate was a transaction 'in trade or commerce'. That is an element of a claim of misleading or deceptive conduct pursuant to s 18 of the Australian Consumer Law (Cth), which was a claim ultimately pursued by Sarah when the matter went to hearing (with different solicitors and counsel).
Sarah was ultimately unsuccessful as to that aspect of her claim.[74] In finding that the particular transaction in question, in which Sarah bought a home unit from the defendants, was not 'in trade or commerce', Curthoys J relied upon one of the cases that the second respondent had read on 21 July 2020 – Ardizzone v Valentino Nominees Pty Ltd.[75]
[74] Thillagaratnam v Doan [2022] WASC 185 at [175] – [189].
[75] Ardizzone v Valentino Nominees Pty Ltd [2019] WASC 55.
But his Honour did not find that the claim under s 18 of the Australian Consumer Law (Cth) was without merit. Rather, he noted that the 'private sale of land is one such area where the dividing line between what is and what is not conduct "in trade or commerce" is less clear'.[76] He then set out both parties' arguments and addressed them across several paragraphs.
[76] Thillagaratnam v Doan [2022] WASC 185 at [177].
On that basis alone it is clear that the cases in question were not so definitive that, upon reading them, the second respondent should have immediately formed the view that the claim had no prospects.
But it is necessary to repeat that the cases were being read in the absence of much meaningful information about Sarah's case, in that the second respondent had not had any meaningful interaction with Sarah or the applicant at that stage.[77]
[77] BOD, Volume 1, page 604.
That is, the reading appears to have been preparatory only. Indeed, Registrar Griffin refused to allow Bennett + Co to charge for the time spent in reading the cases on the basis that it occurred before the second respondent really knew what would be involved in the work, should Sarah engage Bennet + Co.[78]
[78] BOD, Volume 1, page 604.
Moreover, despite being unsuccessful in her claim of deceptive or misleading conduct, Sarah was successful in her claim on other grounds and obtained the remedy she sought – rescission of the contract (as well as damages).[79]
[79] Thillagaratnam v Doan [2022] WASC 185.
That reinforces the plain and obvious fact that in order to form a view as to the prospects of success, the second respondent was required to understand Sarah's case as a whole which, in turn, must have involved reading various documents and discussing the case with her. In so finding, we agree with Registrar Griffin who reached the same conclusion in the Costs Application hearing.[80]
[80] BOD, Volume 1, pages 607 – 608.
In our view it is simply not possible for a legal practitioner to form a view as to a prospective clients' prospects of success on the basis of having read two cases and having not otherwise discussed the case with the prospective client in any material way.
The second possible basis for the ground is the content of an email from the fourth respondent to the second respondent of 3 August 2020. In the email the fourth respondent notes that he was previously retained in the matter through Mr Robinson and advises of the terms on which he would be prepared to be retained again. Rather ominously, they include that 'there is to be no direct client contact'. The immediately following paragraph of the email says:
Finally, I confirm that I have real concerns about the prospects of success in this matter. I understand that the client considers that the only worthwhile remedy is rescission. In my view, it is unlikely that rescission will be granted.[81]
[81] BOD, Volume 1, page 51.
It is obvious on its face that there is a very real difference between, on the one hand, the holding of 'concerns' about the prospects of success and holding the opinion that the preferred remedy is 'unlikely' and, on the other hand, holding the view that there are no prospects of success. To base the ground on the fourth respondent's email is to misconstrue its terms.
A third possible basis for the ground is that the 31 March 2022 complaint email refers to a memorandum of advice prepared by another barrister (Mr L) which was provided to the fourth respondent apparently through the common barrister's practice of 'devilling'.[82] The applicant states that Mr L:
… found that the facts in [Sarah's] case did not present a strong argument for the conclusion that the sale of the property by the Defendants to [Sarah] was made in trade or commerce. This effectively meant that [Sarah] had no prospects of success in her claim for a rescission of the Contract and that [she] would not succeed at the trial …[83]
[82] A copy of the Memorandum is at BOD, Volume 2, pages 1497 – 1499.
[83] BOD, Volume 2, page 1662. Emphasis omitted.
Again, (and putting to one side the fact that this goes only to the issue of trade and commerce) the very language used by the applicant in that short passage demonstrates the absurdity of the complaint – there is a world of difference between saying that there is not a strong argument, as the applicant reports Mr L doing, and saying that there are 'no prospects' of success (which Mr L did not say). In any event, the opinion expressed is Mr L's, not that of either the second or fourth respondent who were, obviously, not bound to accept Mr L's view as their own.
The complaint under this ground against the third respondent is even more obtuse and obscure. In his 31 March 2022 email, the applicant simply says that on 21 July 2020, instead of advising that there were no prospects of success, the second respondent 'advised [the third respondent] to send [Sarah] the costs agreement and to send [the applicant] the invitation to act as Guarantor'.[84]
[84] BOD, Volume 2, page 1657.
However, in his application for review, the applicant asserts that at their meeting of 21 July 2020, the second respondent advised the third respondent that there were no prospects of success and that the third respondent, in breach of his duty to advise the same, sent the costs agreement to Sarah and the applicant.
That allegation goes beyond that which is contained in the 31 March 2022 complaint and addressed in the reviewable decision. It is therefore beyond the scope of our review jurisdiction.[85] But in any event, there is no evidence that the second respondent had formed such a view. Indeed, for the reasons set out above, it would have been remarkable if he had done so. There is also no evidence that he gave such advice to the third respondent.
[85] The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50 at [18] – [21].
As noted above, in his letter of 8 June 2022, Mr Wescombe invited the applicant to provide additional information. The applicant failed to do so.
For the above reasons, we are satisfied, and we find, that these grounds are both misconceived and unreasonable. They are misconceived in that aspects of it misunderstand the difference between a case having no prospects and the situation where a practitioner may have identified difficulties, even considerable difficulties with the case, which may be expressed by way of phrases such as 'real concerns' and 'unlikely'. It is also misconceived in that it misunderstands what it was that the second respondent was doing and was capable of doing, when he read the two cases ahead of any material engagement with Sarah as his prospective client.
The grounds are also unreasonable because the client, Sarah, has withdrawn her complaint and asked to have nothing more to do with any further complaints about the matter. She has, effectively, asked for this process to cease. It is also unreasonable because it appears to lack any factual basis.
Accordingly, we do not regard the first respondent's decision to dismiss the applicant's complaint to be wrong or even attended with sufficient doubt to justify the grant of leave and we find that no substantial injustice will be occasioned if the decision to dismiss the complaint is left unreversed.
It is therefore not necessary to address the question of standing. However, had it been necessary to do so we would have found that the applicant lacked standing in relation to the first ground.
The second ground, in effect, complains that the second and third respondents should not have entered into the costs agreement, the scope of works of which was to determine whether there was an arguable case, because they (already) knew there were no prospects of success.
But the first ground is not so linked to the costs agreement. In circumstances where the only source of standing is the applicant's role as guarantor under that agreement, that is fatal to his claim of standing under ground one.
We also have considerable doubts as to his standing in relation to ground two. It is difficult to see what obligations the second and third respondents owed to him as prospective guarantor.
However, given that we do not need to resolve this issue, we will refrain from making any formal findings in this regard.
Ground 3
[The second respondent] did not comply with Clause 1 of Schedule 1 of the costs agreement and so no fees are payable by [the applicant] to [the practitioners] or the law firm Bennett + Co
Clause 1 of Schedule 1 of the costs agreement (also described as the Scope of Works) provides as follows:
Undertake a review of the documents filed in CIV 1461 of 2018 and, subject to Bennett + Co forming the view that the matter is arguable, enter an appearance on [Sarah's] behalf and represent [Sarah] at the trial of this action listed to be heard … 16 to 20 November 2020.[86]
[86] BOD, Volume 2, page 1696.
The applicant's complaint email of 31 March 2022 does not precisely identify what it was that is said to amount to a failure to comply with that clause.
Rather, that email sets out a series of actions taken (or allegedly taken) by the second respondent which are described by the applicant as 'superfluous' and as having 'nothing to do with the Scope of Work as defined in the … Schedule'.[87]
[87] BOD, Volume 2, pages 1657 – 1659.
That is, it would appear that the ground alleges that the Scope of Works was strictly limited to the review of documents and forming a view as to whether the matter is arguable and that anything more than that, including meeting with Sarah and the applicant, was outside the agreed scope.
That was also the approach taken at the hearing of the Costs Application. The transcript of the hearing on 6 May 2021 includes a discussion as to the second and third items on the Bennett + Co invoice, which concerned two telephone attendances on 21 July 2020 (to Sarah and the applicant respectively) which were supported by contemporaneous notes.[88]
[88] BOD, Volume 1, pages 606 – 610.
The applicant objected to paying those items on the ground that the Scope of Works 'required [the second respondent] to read [no more than] four documents: the pleadings'.[89] The transcript shows that the applicant, later in the hearing, agreed that Bennett + Co didn't receive the pleadings until three days after the telephone conferences, to which the learned Registrar said, amongst other things, that '[i]t's not possible to discharge that retainer [i.e. the Scope of Works] in the absence of a conversation with the client'.[90] Her Honour also said that she does not:
… believe that it is possible for a law firm or a lawyer to form a view as to whether something is arguable based only on looking at the pleadings. … you also need to have reference to the existing case law and as to the evidence that's available. I mean, if a pleading isn't supported by the evidence, it's clearly not arguable.
If the pleading is at odds with decided law or statutory law, the case isn't arguable. So you can't just look at the pleadings and say, "It's in" or "It's out".[91]
[89] BOD, Volume 1, page 606.
[90] BOD Volume 1, page 607.
[91] BOD, Volume 1, page 608.
With respect, we agree. Indeed, to suggest otherwise, as the applicant does, is misconceived in that it misunderstands the inevitable process by which legal opinion is necessarily developed.
Mr Wescombe's letter of 8 June 2022 concluded, in this regard, that as 'the costs associated with this work' have been the subject of assessment he did not intend to 're-visit' the issue any further.[92]
[92] BOD, Volume 2, page 1738.
As noted above, he invited the applicant to provide further information, which invitation the applicant declined to take up.
The first respondent dismissed this ground on the basis that the Scope of Works was 'clearly stated in the costs agreement' which did not support the applicant's concerns. The first respondent also noted that the Court had conducted an assessment of the costs and that, in the absence of any adverse findings by the Registrar about the practitioners in this regard, he found the complaint to be misconceived.[93]
[93] Application for Review, Annexure ST–3; BOD, Volume 1, page 2.
The applicant adds nothing new in the Application for Review to what had previously been said in the email of complaint. Indeed, the applicant does no more than restate his previous position.[94]
[94] Application for Review, para 25; also, para 33(i).
We agree with the comments of Registrar Griffin noted above and with the reasons of the first respondent in the reviewable decision. In our view, we find, that the complaint that the second respondent did not comply with the Scope of Works is misconceived because it misunderstands the manner in which legal advice is developed and formed. As a result it misconstrues the terms of the Scope of Works in an artificially narrow way.
We also find the ground unreasonable in that the substance of the ground was addressed by the Court in the Costs Application. It is also unreasonable because Sarah, the client, has effectively asked for the complaints process to end.
Accordingly, we do not regard the first respondent's decision to dismiss this ground of the applicant's complaint to be wrong or even attended with sufficient doubt to justify the grant of leave and we find that no substantial injustice will be occasioned if the decision to dismiss the complaint is left unreversed.
As a result, it is unnecessary to address the question of the applicant's standing to bring this ground of complaint and, save to say that any claim to standing is perhaps stronger here than in relation to some other grounds, we will say no more.
Ground Four
[The second respondent] entered into an agreement with [the fourth respondent] to act as counsel without [the second respondent's] client's [Sarah's] permission
The applicant relies upon clauses 8.1 and 8.2 of the costs agreement, which provide as follows:
8.1Bennett + Co will obtain the prior approval of the Client to brief Counsel to provide written advice, draw documents and/or appear for the Client in relation to the Subject Matter.
8.2The Client authorises Bennett + Co to negotiate the fees payable to the Counsel, to be appointed on the Client's behalf, and Bennett + Co will obtain the Client's prior approval before finalising any such arrangements.[95]
[95] BOD, Volume 2, page 1688.
The Client referred to in those clauses is, of course, Sarah, not the applicant, whose interest under the costs agreement was limited to that of guarantor.
Mr Wescombe and the first respondent found that this ground is, in effect, that the second respondent failed to comply with his client's instructions.
We agree. Any complaint that the terms of the cost agreement were not met as to the engagement of counsel is for Sarah, not the applicant, to raise should she wish to do so.
As will be seen in the description of what occurred, set out below, the applicant was dealing directly with the second respondent in regards to the engagement of counsel. In doing so, he appears to have been acting as Sarah's agent.
His acting as Sarah's agent does not give him a right to complain about the second respondent's conduct, other than as Sarah's agent, which Sarah (as principal) has expressly disclaimed.
Accordingly, the applicant's interest remains no more than that of guarantor of Sarah's fees. There is no obvious connection between that interest and the subject matter of the ground. That is particularly so as the fourth respondent does not appear to have been formally retained. In any event, we have no evidence before us of an invoice sent for which the applicant was liable.
Therefore, we find that the applicant lacked a direct personal interest in the subject matter of this ground.
In any event, we are satisfied, and we find, that the ground is vexatious in that the applicant, apparently as Sarah's agent, wished for the fourth respondent to be engaged as counsel and, indeed, agreed to his engagement by the second respondent by endorsing the acts now the subject of complaint.
The applicant's complaint email of 31 March 2022[96] alleges that on 2 August 2020, the applicant emailed the second respondent and advised that if Bennett + Co were willing to act for Sarah 'then we would like him [ie. the second respondent] to appoint [the fourth respondent] to act as Counsel'.[97]
[96] The application for review barely touches on this ground and adds nothing to what is contained in the original complaint.
[97] BOD, Volume 2, page 1660. That email is at BOD, Volume 2, pages 1653 – 1735.
What then followed, according to the applicant's complaint email, was a 'phone call between him and the second respondent which exposed the fact that both of them had been in discussions with the fourth respondent as to his availability.
The applicant says that he instructed the second respondent not to contact the fourth respondent and to await further instructions. He also says that he advised the second respondent that he (the second respondent) must not engage the fourth respondent unless and until the second respondent had confirmed that Sarah had an arguable case and that he would file a notice of change of solicitors.[98]
[98] BOD, Volume 2, page 1660.
The applicant then says that the second respondent called him and advised that the fourth respondent had agreed to act as Sarah's counsel. The applicant says that he was 'shocked because [the second respondent] had defied my specific instructions not to contact [the fourth respondent]'.[99] There was then, according to the complaint email of 31 March 2022, a discussion as to the fourth respondent's fees which involved the applicant challenging the rate quoted by the second respondent, and the second respondent advising that the fourth respondents fees were 'not negotiable'.
[99] BOD, Volume 2, page 1661.
The gravamen of the ground therefore appears to be that, although the applicant, as Sarah's agent, wanted the fourth respondent to be engaged as counsel, he wanted that to occur only after the second respondent had confirmed that he could and would act for Sarah, and only after the applicant had agreed with the fourth respondent his hourly rate. In those circumstances, the second respondent appears to have spoken to the fourth respondent and reached in principle agreement. It is this that the applicant has taken issue with.
The written evidence supports this view. The tax invoice issued on 14 August 2020 records two telephone calls between the applicant and the second respondent on 2 August 2020. It does not record the subject matter to include the engagement of counsel.[100]
[100] BOD, Volume 1, page 55.
The tax invoice also includes eight 'phone calls on 3 August 2020, between, in chronological order: the second respondent and the applicant; the second and the fourth respondent; the second respondent and the applicant; the second respondent and the fourth respondent; second respondent and Mr Robinson; the second respondent and Sarah; and the second respondent and Sarah's Mother (twice).[101]
[101] BOD, Volume 1, page 55.
On 2 August 2020 at 3.44 pm, the applicant sent an email asking that all work cease, pending confirmation that Bennett + Co was prepared to act as solicitors. That email also spoke about unnecessary waste of time due to both of them dealing with the fourth respondent.[102]
[102] BOD, Volume 1, pages 413 – 414.
The second respondent answered almost immediately (2 August 2020 at 3.46pm) advising that he was 'not taking any further steps … pending confirmation that Bennett + Co will act on Sarah's behalf'.[103]
[103] BOD, Volume 1, page 415.
But on 3 August 2020 at 12.31 pm, the fourth respondent sent his email referred to above at para [130] in which he set out the conditions upon which he was prepared to accept a retainer from Bennett + Co to act on Sarah's behalf. Almost immediately, that email was forwarded to the applicant, who at 3.27 pm wrote back to the second respondent stating:
Hi Darren
We accept the terms listed below for the engagement of [the fourth respondent].
Please proceed accordingly.
Regards
Scott Thillagaratnam[104]
[104] BOD, Volume 1, page 417.
That is, the applicant, by his email of 3 August 2020 at 3.27 pm agreed to, and endorsed, the very acts about which he now complains.
That, in our view, justifies the dismissal of this ground of complaint on the basis that it is vexatious.
In our view, and we find, that it is vexatious because in circumstances where the applicant has previously endorsed the conduct the subject of the complaint the only reasonable conclusion is that the complaint has been lodged solely for the purpose of causing annoyance.[105] It is unreasonable for the same reason, as well as because Sarah has asked for the complaints process to stop.
[105] Lawson and Legal Profession Complaints Committee [2019] WASAT 36 at [16].
Accordingly, we do not regard the first respondent's decision to dismiss the applicant's complaint to be wrong or even attended with sufficient doubt to justify the grant of leave and no substantial injustice will be occasioned if the decision to dismiss the complaint is left unreversed.
Ground Five
[The second respondent] raised [the applicant's] liability as guarantor from $5,000 to $80,000
There is some uncertainty as to the basis for this ground.
The first respondent appears to have proceeded on the basis that this ground is concerned with a letter of variation, signed by the third respondent, sent to Sarah and copied to the applicant dated 6 August 2020 (Letter of Variation).[106]
[106] BOD, Volume 1, pages 43 – 46.
The Letter of Variation explains that, rather than the $5,000 in fees estimated in the costs agreement, $11,620 had been incurred by Bennett + Co to that date with the exceedance explained as being due to four matters, which are described as 'unforeseen circumstances'. Having done so, and having addressed a further matter that is the subject of Ground 6 (below), the Letter of Variation stated that Bennett + Co had 'formed the view that it can act on your behalf', and stated that further work would be required which was estimated as being in the order of $88,380 exclusive of GST and disbursements in addition to what had already been incurred.
The substance of this ground appears to be, as set out in the applicant's email of 31 March 2022 that the third respondent:
… unilaterally altered the Scope of Work defined in the Costs Agreement from forming a view as to whether the matter was arguable to forming a view whether B+C can act for [Sarah] and in the process, [the third respondent] unilaterally increased [the applicant's] liability from $5,000.00 to $88,380.00.[107]
[107] BOD, Volume 2, page 1666. Bold text and underlining in original.
The same proposition is put in slightly different ways at least three more times on the following page of the 31 March 2022 email.[108] For ease of reference, we will call this the first formulation.
[108] BOD, Volume 2, page 1667.
If indeed, the ground is based on those allegations (which appears a fair inference to draw), then the ground concerns the third respondent, rather than the second respondent. Equally, the reference to $80,000 would represent a form of rounding.
However, on a much earlier page of the 31 March 2022 email, the applicant asserts that the fourth respondent had given the second respondent an estimate of his fees and, as a result:
[the second respondent] and [the fourth respondent] had increased [the applicant's] liability under the limited Guarantee of $5,000.00 to $80,000.00.[109]
[109] BOD, Volume 2, page 1661. Bold text in the original.
In our view, this second formulation of the ground actually forms part of Ground 4, which is that the second respondent engaged the fourth respondent as counsel without proper instruction to do so. It also forms part of Ground 6, which goes to the terms on which the fourth respondent was prepared to be engaged.[110]
[110] The application for review is even more confusing in that it claims that the Letter of Variation amounted to a unilateral increase of the applicant's liability to $11,620 (para 79(iii)), $34,240.30 (para 79(vi)) as well as $88,380 (para 79(viii)). The new figures are not the subject of review. The application adds no further relevant detail or information to the ground.
Accordingly, we will address the first formulation under this ground, and not the second.
In that regard we are satisfied, and we find, that the ground is misconceived. As Mr Wescombe said:
The costs agreement …states that the estimated costs associated with (sic the) first stage of the worked (sic work) scoped in the agreement as $5000. Once stage one of the work was completed, a new estimate was provided for the next stage of work as is required.[111]
[111] BOD, Volume 2, page 1739.
The Letter of Variation clearly stated that Bennet + Co had formed the view that it could act on Sarah's behalf. The effect of that statement is to say that it had completed the work which had been the subject of the original Scope of Works contained in the costs agreement.
In so saying, we acknowledge that there is a difference in the language used – the Scope of Works refers to Bennett + Co 'forming the view that the matter is arguable', while the Letter of Variation speaks of forming the view that Bennett + Co could act on Sarah's behalf.
But in our view there is no material difference between those formulations – ethically, a practitioner may not advocate for a position that is not arguable,[112] so for Bennett + Co to say that they were satisfied they could act was, in the context of the Scope of Works, to say that they were satisfied that the matter was arguable.
[112] G E Dal Pont, Lawyers' Professional Responsibility (Lawbook Co, 2017) 594 – 595. This Tribunal adopted the relevant passages from an earlier version of that text in Legal Profession Complaints Committee and Carlose [2012] WASAT 104 at [24]. See, also, Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683 at [27].
The completion of the works previously scoped represents, in our view, a 'substantial change' to the disclosure of fees contained in the costs agreement.
Accordingly, and as Mr Wescombe noted in the passage above, a further costs estimate was required to be provided in those circumstances. Both s 267 of the LP Act and cl 26 of the costs agreement required that to occur.
The Letter of Variation did no more than that. Its effect was to identify the work that would need to be carried out in order to take the matter to trial and to estimate the costs that would be incurred by Bennett + Co to do that work.
It remained, at all times, a matter for Sarah (and the applicant as guarantor of her fee liability) to determine whether or not to accept the further fee estimate in that, at all times, they could withdraw their instructions. Again, cl 26.2 of the costs agreement expressly provides for that to occur, should it not otherwise be self-evident.
Indeed, that is, in fact, what happened. The Letter of Variation was sent on Thursday 6 August 2020 and on Saturday 8 August 2020 the applicant wrote to the second respondent stating that he should 'cease any work on the file' as he and Sarah were 'considering [their] options'.[113] On the same day, the second respondent emailed Sarah, noted the applicant's email and said, amongst other things, that if she wished for Bennett + Co to 'act as instructors at trial [they] would need that instruction as soon as possible.'[114] On 14 August 2020, the applicant (presumably as Sarah's agent) terminated the costs agreement.[115]
[113] BOD, Volume 1, page 48.
[114] BOD, Volume 1, page 47.
[115] BOD, Volume 1, page 47.
Accordingly, we reject the applicant's assertion that the third respondent 'unilaterally' altered the scope of work and, in doing so, raised the applicant's liability under the guarantee.
In that regard we agree with the first respondent's decision to dismiss this ground as misconceived. In our view, and we so find, the ground misunderstands the nature of the Letter of Variation. In our view, and we so find, that letter was doing no more than that which was required in the circumstances: disclosing that the original scope of works had been completed; identifying those works that would be required to take the matter through to trial; and estimating their likely cost.
For the same reason, we find the ground unreasonable. It was clear on its face what the Letter of Variation was purporting to do. It was equally clear to the applicant that Sarah had the ability to refuse to accept the revised fee estimate by doing exactly what was done. The ground is also unreasonable because Sarah has asked that the complaint process cease.
Accordingly, we do not regard the first respondent's decision to dismiss this ground of the applicant's complaint to be wrong or even attended with sufficient doubt to justify the grant of leave and no substantial injustice will be occasioned if the decision to dismiss the complaint is left unreversed.
Ground Six
[The second respondent] and [the fourth respondent] came to an express agreement to deceive [the applicant] in order to recover fees accrued by [the fourth respondent] under a separate and different costs agreement
On 3 August 2020, the fourth respondent sent an email to the second respondent in which he set out his terms on which he would be willing to accept instructions to act for Sarah in her claim.[116] As noted above, that email was then forwarded to Sarah and the applicant, who responded very promptly agreeing to the engagement of the fourth respondent as counsel.
[116] BOD, Volume 1, pages 51 – 52.
On 4 August 2020, the fourth respondent sent a further email to the second respondent which attached two invoices, both of which he said he had previously sent to Mr Robinson on two occasions – that afternoon and, in draft form, on 21 July 2020. The two attached invoices were in the sum of $10,833.90 and $6,791.40 respectively, inclusive of GST. The email stated that Mr Robinson had previously paid $8,800 of his own funds in part payment of the greater sum. The email stated that Mr Robinson had done so 'as he [Mr Robinson] was not authorised by the client to use trust funds for that purpose'.[117] The email concluded:
As a condition of my retention, I require payment of both accounts following which I shall return the sum of $8,800 to Mr Robinson.
[117] BOD, Volume 1, page 223.
The email of 4 August 2020 does not appear to have been forwarded to the client until 6 August 2020 when it was enclosed with the Letter of Variation, which stated as follows:
In addition to Bennett + Co's outstanding fees, [the fourth respondent] has provided [the third respondent] with 2 outstanding accounts which will also require payment. I have enclosed a copy of [the fourth respondent's] email and its attachments for your consideration.[118]
[118] BOD, Volume 1, page 217.
The applicant's complaint in this regard appears to be that which is set out below in his email of 31 March 2022:
It is clear on the evidence that [the second and fourth respondents] conspired on 04/08/20 to make an unlawful demand that I pay to [the fourth respondent] the sum of $17,625.30 … [the fourth respondent] stated in his email that once he receives the sum of $17,625.30, he will return the sum of $8,800.00 which Mr Robinson paid to him 10 days prior to his email. It is also equally clear that [the fourth and second respondents] agreed that the email of 04/08/20 would not be brought to my attention until after [the third respondent] had been consulted. In the meantime, [the second and fourth respondents] agreed that they would deceive us into believing that [the fourth respondent's] Retainer had been agreed to on 03/08/20.[119]
[119] BOD, Volume 2, pages 1667 – 1668. Emphasis in original. The application for review (see, especially paras 61 – 64) adds no further relevant detail to this ground.
The 'evidence' referred to in the passage above is set out several pages previous in the email of 31 March 2022, but it rises no higher than bald assertion.[120]
[120] BOD, Volume 2, page 1663.
In any event, we are quite unable to understand what the applicant asserts was the supposed point of the alleged conspiracy.
In our view, and we find, there was no absolute demand that Sarah or the applicant pay the fourth respondent's fees incurred when he was retained by Mr Robinson. Rather, the demand was conditional – if you want to engage the fourth respondent as counsel, you must pay these outstanding fees.
Equally, we find that there is nothing unlawful about that (conditional) demand. As Mr Wescombe stated in his letter of 8 June 2022, the fourth applicant was 'within his rights to attach conditions to his engagement as it was [Sarah's] right to not agree to his engagement if she disputed her liability there'.[121]
[121] BOD, Volume 2, page 1739.
The passage quoted above from the complaint email of 31 March 2022 contains bolded text to the effect that upon payment by Sarah, the fourth respondent would repay Mr Robinson. The bolding suggests that the applicant considers that demand significant or, perhaps, damaging. But we are unable to identify anything of significance, or which incriminates the fourth respondent, which attaches to the fact that he advised that, upon receipt of the funds, he would repay Mr Robinson the $8,800 that had been paid.
Perhaps it is suggested that this was some ruse to ensure he was paid in circumstances where Mr Robinson had been instructed not to pay him because, so Sarah or the applicant believed, he was not entitled to the money.
If so, that is not said and, in any event, that would appear to be inconsistent with both the applicant's prompt confirmation on 3 August 2020 of the fourth respondent's engagement as counsel.
But in any event, as Mr Wescombe said (above), there was nothing stopping Sarah from refusing to engage the fourth respondent on his proposed terms 'if she disputed her liability' for those previous amounts.
We are equally unclear as to the significance of the assertion that the second and fourth respondents agreed that the fourth respondent's email of 4 August 2020 be kept from the applicant until after the third respondent had been consulted.
There is no evidence that that, in fact, occurred. But even if it did, there may well be some good reason internal to Bennett + Co for that to occur. In any event, we are unable to identify any rule of practice that might be said to have been breached, let alone any harm that has been done as a result.
Finally, the above quoted passage also asserts (in bold) that there was some agreement between the second and fourth respondents 'that they would deceive' the applicant and Sarah into believing that the fourth respondent's retainer had been agreed to on 3 August 2020.
As we have already noted, the applicant had agreed that the fourth respondent should be retained on terms set out in his email of 3 August 2020. The additional condition, set out in the Letter of Variation, that the previously incurred fees be paid, would no doubt have come as a surprise to Sarah and the applicant.
It might be said that that is not an ideal situation. But, in our view, it falls well short of any conduct that justify a finding of unsatisfactory professional conduct.
The reality is that any contractual arrangement was between the fourth respondent and Bennett + Co. The applicant's email of 3 August 2020 was nothing more than the giving of instructions to the effect that Bennett + Co could enter into such an agreement. Before that in fact occurred, it would appear, the fourth respondent added another condition to his terms. As Mr Wescombe stated, there is nothing preventing him from doing so, just as there was nothing preventing Sarah from changing her mind so as to instruct the second respondent that he should not retain the fourth respondent as counsel.
In our view, and we find, there is no basis at all to the allegation that the second and fourth respondents reached an agreement to keep from the applicant, until the Letter of Variation was sent on 6 August 2020, the knowledge that the fourth respondent had imposed the additional condition, whether or not such an agreement was designed to recover fees previously accrued by the fourth respondent.
Before we conclude in this regard, we note that the first respondent's letter of 17 June 2022 did not expressly address this ground, whereas each other ground was expressly addressed.
That may have been an oversight. Even if that is the case, as the first respondent noted in its Submissions,[122] the letter of 17 June 2022 incorporated the reasons of Mr Wescombe of 8 June 2022, when it was said:
After careful consideration of all of the material received about your concerns, I dismiss these complaints under section 415(1)(b) of the [LP Act]. I refer to Mr Wescombe's letter of 8 June 2022 (attached), and also set out the reasons for my decision below.[123]
[122] First Respondent's Submissions dated 28 March 2023, para 9.
[123] BOD, Volume 1, page 1. Emphasis in original.
The letter of 17 June 2022 then describes each of the nine grounds of complaint, including this ground. It is 'these grounds' that, in our view, the first respondent dismissed in the passage quoted above in the immediately preceding paragraph. That dismissal was pursuant to s 415(1)(b) which includes the power to dismiss if the complaint is misconceived.
Mr Wescombe's letter did not describe this ground as misconceived but he does say, as noted above, that the imposition of an additional condition was within the fourth respondent's rights and that Sarah was within her rights to refuse to accept that additional condition.
In our view, that constitutes a proper basis to conclude that the ground is misconceived in that it misunderstands the legal status of the fourth respondent's additional demand.
The first respondent's letter of 17 June 2022 also found all nine grounds (i.e. including Ground six) to be unreasonable for reasons that included that the applicant was 'aware of Sarah's position on complaints regarding this matter'.[124]
[124] BOD, Volume 1, page 3.
We are therefore satisfied, and we find, that the first respondent did in fact make a decision in respect of this ground and we therefore have jurisdiction to review the reviewable decision in respect of this ground.
For the reasons set out above, we find this ground to be misconceived.
The ground misunderstands what it was that the fourth respondent was doing when he imposed an additional condition as to his willingness to accept a retainer to act in the matter. There was nothing unlawful, or even improper, in what was done. Neither was there anything improper in not immediately advising of the additional condition but, rather, waiting until the Letter of Variation was sent on 6 August 2020.
The ground is also unreasonable, we find, for both that same reason and that Sarah has asked for an end to the complaints.
Accordingly, we do not regard the first respondent's decision to dismiss this ground of the applicant's complaint to be wrong or even attended with sufficient doubt to justify the grant of leave and no substantial injustice will be occasioned if the decision to dismiss the complaint is left unreversed.
As to standing, we note that the ground is framed in terms which allege that the applicant was the intended target of the alleged deception. In our view, that too is misconceived in that any liability of the applicant for counsel's fees could only have arisen as Sarah's guarantor. For reasons already given, we are doubtful that that amounts to a 'direct personal interest' in the subject matter of this ground but, given our findings about the merit, we need not, and do not, make any findings about standing.
Grounds Seven and Eight
[The second respondent] and [the third respondent], through Bennett + Co refused to lodge and serve all its files in relation to 44 items of invoices for assessment
At the assessment of costs hearing before Registrar Griffin on 6 May 2021, [the second respondent] misled the court into accepting that he had no direct evidence of most, if not all of the 44 items in the bill of costs and that had he filed all files, the bill would have been dismissed entirely
As is noted above, on 17 September 2020 Bennett + Co applied for its costs to be assessed.
That application was brought on for directions on 3 December 2020, at which the applicant to these proceedings appeared, notwithstanding that he had not been joined. After Registrar McDonald indicated that she would make certain orders, the transcript shows that the applicant asked for orders 'directing the production of certain … of all the documents, of file notes in support of various items in the bill'.[125]
[125] BOD, Volume 2, page 909.
Having realised that she had overlooked the need for such an order, the Registrar then indicated that she would make that order, after which the applicant then sought clarification as to what documents such an order would require Bennett + Co to serve:
THILLAGARATNAM, MR: Your Honour, can I just clarify, what – what is the meaning of files? What do they have to serve?
REGISTRAR: Well, they will have to file any – that, well, that - - -
THILLAGARATNAM, MR: File notes and so on?
REGISTRAR: Yes.
THILLAGARATNAM, MR: Okay. That's fine.
REGISTRAR: Well, anything. They need to file whatever documents are going to support their bill.
THILLAGARATNAM, MR: Absolutely. Thank you.[126]
[126] BOD, Volume 2, page 910.
Orders were made which, amongst other things, required Bennett + Co to 'lodge with the Court and serve its files relevant to the Bill of Costs' by 17 December 2020.[127]
[127] Application for Review, Annexure ST-12.
The applicant appears to have been unsatisfied with what was filed in purported compliance with that order. He sought orders that Bennett + Co file and serve additional documents. That application was addressed at a further hearing on 16 March 2021.
The relevant transcript demonstrates that the purpose of the application was to obtain a copy of all documents relevant to the work described in the Bill of Costs, not just those that Bennett + Co chose to file in order to support the relevant item of the Bill of Costs. In response, Registrar Griffin was very clear saying, in effect, that what was filed in compliance with the order was a matter for Bennett + Co and that if she thought it insufficient to justify the fee charged for the item, she would disallow it:
THILLAGARATNAM, MR: No, your Honour. The question is was it not clear when Registrar McDonald made the order that it included all the file notes. No matter how you can stretch the argument, it is so clear, and I made my position very clear to Registrar McDonald that I wanted all the file notes, and your Honour is actually saying no, I'm not entitled to the file notes. That's exactly what your Honour is saying.
REGISTRAR: What I said was – and maybe you didn't hear me.
THILLAGARATNAM, MR: Yes. Please repeat it, then, to me.
REGISTRAR: What I said was that Bennett + Co, the law firm which is seeking to have its costs assessed, was ordered to produce the file notes that support its bill; they say they have done that.
THILLAGARATNAM, MR: Yes. They have not.
REGISTRAR: Mr Zusman, would you care to address me on that point.
THILLAGARATNAM, MR: He has only given me two or three file notes. That's all.
REGISTRAR: I have asked Mr Zusman to address me on that point.
…
THILLAGARATNAM, MR: So is Mr Zusman [saying] that he has given us the file notes for all the items?
REGISTRAR: What he has said is Bennett + Co has produced the documents which support the bill. This is the bill they are seeking to have assessed.
THILLAGARATNAM, MR: Yes. And I would like to know where he has produced it. Where are the documents that support his items? What does he mean by he has produced those documents?
REGISTRAR: Well, didn't he provide you with a USB containing the documents?
THILLAGARATNAM, MR: All the documents, we already have. They are to do with emails and so on, but the USB does not contain the file notes. That's my point, your Honour.
REGISTRAR: Well, and he's saying they've chosen – or they didn't have the file notes to produce. The documents they have produced in answer to the court's order are the documents that they say support the bill.
THILLAGARATNAM, MR: Yes, which means that at the assessment, if they can't justify by file notes, he is going to be – those items will be ignored.
REGISTRAR: I will make the assessment as to whether or not I think that they are justified at the taxation.
THILLAGARATNAM, MR: Yes. Okay. …[128]
[128] BOD, Volume 2, pages 933 – 935.
It would appear from the relevant transcript that the costs assessment hearing on 6 May 2021 (again, before Registrar Griffin) proceeded on the basis described above.
In those circumstances, it is extraordinary that the applicant now complains (Ground 7) that the second and third respondents 'refused to lodge and serve all its files in relation to 44 items of invoices for assessment'.
It is extraordinary because, and we find, there was no order or other reason for the second and third respondents to lodge and serve all Bennett + Co's files in relation to 44 items of invoices for assessment. Further, the learned Registrar clearly had no concern that Bennett + Co had properly complied with the order that had been made.
Accordingly, we are satisfied, and we find, that Ground 7 is misconceived in that it misunderstands the obligation on the second and third respondents under the order made by the learned Registrar on 3 December 2020.
The order was to file ('lodge') and serve the Bennett + Co 'files relevant to the Bill of Costs'. That order required them to file such documents as were necessary to justify the costs item charged. It was not to allow the Registrar to undertake some other, unspecified, enquiry into the matter.
We are also satisfied, and we find, that Ground 7 is unreasonable, in that the applicant has had it explained to him (and appears to have accepted that explanation) the basis on which the order in question was made on two occasions, and he then participated in the Costs Application hearing on that basis. It is also unreasonable because Sarah has asked that the complaints process end.
Accordingly, we do not regard the first respondent's decision to dismiss this ground of the applicant's complaint to be wrong or even attended with sufficient doubt to justify the grant of leave and no substantial injustice will be occasioned if the decision to dismiss the complaint is left unreversed.
Ground 8 complains that the second respondent misled the Court at the Costs Application hearing on 6 May 2021 'into accepting that he had no direct evidence of most, if not all of the 44 items in the bill of costs'.
This ground is also misconceived.
The first reason for that finding is that a search of the relevant transcript suggests that only in relation to a few items, and not in relation to all 44 items, did the second respondent submit or otherwise acknowledge that there was no direct evidence in support of a particular item. [129]
[129] See, for example, BOD, Volume 2, pages 964 (Item 1), 972 (Item 4), 998 (Item 9) and 1025 (Item 20).
The second reason for that finding is that the ground misunderstands or misconstrues the purpose of the Costs Application. It was not the task of the second respondent to persuade the Registrar that there was no direct evidence of a particular matter. Rather, it was a situation where the second respondent's task was to persuade the Registrar to allow the costs item, which task was made more difficult in the absence of direct evidence.
The transcript of the Costs Application hearing shows that that was the basis on which the hearing on 6 May 2021 progressed – in each relevant case where the second respondent acknowledged that there was 'no direct evidence' in support of a particular item he then made submissions in which he invited the Court to infer that certain things had occurred sufficient to justify the item. In some cases that approach succeeded and in others it did not.
The third reason for the finding that the ground is misconceived is that its unstated implication is without foundation.
It is implicit in the ground that the second respondent deliberately chose not to lodge and serve certain documents because they would, somehow, incriminate or discredit him. In the applicant's complaint email of 31 March 2022, that implication is express – the applicant says both that:
(a)the second respondent deliberately withheld the relevant documents 'because these documents would have compromised him'; and
(b)if the second respondent 'had not been dishonest and had lodged and served all the File Notes and supporting documents, the Registrar would have dismissed B+C's Bill of Costs'.[130]
[130] BOD, Volume 2, page 1673.
There is no basis for either of those allegations, which constitute two of the last four paragraphs of the applicant's 31 March 2022 complaint email, which occupies 27 pages.
Elsewhere in the email, and other than bare assertions, the only relevant fact in this regard is that on 30 August 2020, and in response to Sarah's request for copies of various file notes and documents, the second respondent stated that the applicant was 'not entitled to any of my notes or memoranda … [t]hey are our internal working documents …'[131]
[131] BOD, Volume 2, pages 886 – 888.
We note, in that regard, that Sarah's email of 30 August 2020 asks for copies of 15 documents, all of which are described as 'Notes' relating to certain, identified telephone attendances with either Sarah (x3), the applicant (x5), Sarah's Mother (x3) or the fourth respondent (x4).[132] But the applicant's complaint email of 31 March 2022 wrongly describes Sarah's email as seeking 'all the File Notes and documents to support the 44 Items of B+C's Invoice dated 14/08/20'.[133]
[132] BOD, Volume 2, pages 886 – 887.
[133] BOD, Volume 2, page 1671.
In any event, the second respondent's refusal to provide the requested documents (or, at least, any that exist) does not provide a basis for us to infer, somehow, that those documents might somehow incriminate, or be otherwise contrary to the second respondent's interests. At least in relation to notes of telephone attendances with Sarah (the client) and her parents (who should, for this purpose at least, be regarded as her agent), for which no charge appears to have been levied for the writing of the note, the second respondent was entirely within his rights to refuse to hand them over upon mere request; they are working documents internal to, and that belong to, Bennett + Co. The client has no right to such documents.[134]
[134] Westworth v De Montfort (1988) 15 NSWLR 348.
Accordingly, and for the above reasons, we are satisfied, and we find, that Ground 8 is misconceived in that it misunderstands the purpose of the costs assessment.
We are also satisfied, and we find, that Ground 8 is unreasonable, in that there was no suggestion from the learned Registrar that the costs assessment was conducted in any way that departed from acceptable practice. The ground is also unreasonable because Sarah has asked for an end to these complaints.
Accordingly, we do not regard the first respondent's decision to dismiss this ground of the applicant's complaint to be wrong or even attended with sufficient doubt to justify the grant of leave and no substantial injustice will be occasioned if the decision to dismiss the complaint is left unreversed.
These two grounds both go to the second respondent's conduct at the costs assessment hearing at which the applicant attended and participated as third party payer who had, in fact, paid Sarah's fees. This is, then, perhaps the strongest of the grounds in which it might be said the applicant has a direct personal interest.
Ground Nine
There have been offences committed under the Criminal Code
This ground is misconceived, we find, for two reasons. First, the first respondent is not the appropriate body to investigate the possible commission of criminal offences.
The second reason that it is misconceived is that this ground effectively replicates aspects of other grounds, which have in turn been found to be misconceived. So, for example:
(a)The applicant alleges a conspiracy between the second and fourth respondents to make an unlawful demand that the applicant pay the fourth respondent for work he claimed to have performed under his retainer with Mr Robinson. That is, plainly, another way of formulating the complaint in Ground 6, which we found to be misconceived;
(b)The applicant alleges that the unlawful demand to pay the fourth respondent in that way amounted to a 'threat with intent to gain a pecuniary benefit' to the fourth respondent or to 'cause a pecuniary detriment' to the applicant.[135] It is unclear to us what the alleged threat was. But in any event, we have (again) addressed this issue in Ground 6;
(c)The applicant alleges that the second respondent's conduct was fraudulent in that he 'did not do any work as defined in the Scope of Work …', did not comply with the retainer and failed to advise that Sarah's case was not arguable and had no prospects of success.[136] These matters have been addressed in Grounds 1 – 3, all of which were found to be misconceived.
[135] BOD, Volume 2, page 1668. Emphasis omitted.
[136] BOD, Volume 2, page 1668.
We also find that the ground is unreasonable for that same reason and because Sarah has asked that the complaints process be ended.
Accordingly, do not regard that the first respondent's decision to dismiss this ground of the applicant's complaint to be wrong or attended with sufficient doubt to justify the grant of leave, and no substantial injustice will be occasioned if the decision to dismiss the complaint is left unreversed.
Application for leave to file further submissions
By email dated 18 July 2023, the applicant sought to file additional submissions.[137] By letter of 24 July 2023, he also sought a directions hearing.
[137] Despite being advised that it was necessary for him to file the application, rather than merely email it, that did not occur. We have, however, proceeded to address the request nonetheless.
Each of the respondents opposed the consideration of the additional submissions and the listing of a directions hearing.
On 26 July 2023, after conferring with the other members of the panel, the Deputy President made orders refusing leave to file the additional materials and dismissing the application for directions. Those orders were sent to the parties under cover of an email that advised that the reasons for doing so would be included in the reasons for our ultimate determination of the matter. These are those reasons.
First, as is implicit in the above paragraphs, and as was recently noted by the Tribunal in Lourey,[138] as a matter of principle a party may not file written submissions after the conclusion of oral argument without leave to do so.
[138] Legal Profession Complaints Committee and Lourey [2023] WASAT 77 at [51].
In Camp,[139] the Full Court noted that that principle applied because 'it is at the hearing itself that the parties are expected to make a complete statement of their case and position'.[140] That, in turn, is because 'it is in the public interest that there should be an end to litigation and that actions, causes and matters in the court should be managed and determined with a view to promoting the just resolution of litigation, disposing efficiently of the business of the court, and maximising the efficient use of available judicial and administrative resources'.[141]
[139] Legal Practitioners Complaints Committee v Camp [No 2] [2010] WASC 207 (Camp).
[140] Camp at [9].
[141] Camp at [9].
In this case, the matter is to be determined on the documents and there is to be no 'hearing'. It is also the case that the two applications were made before such determination occurred.
Nevertheless, in our view, the same principles apply because all steps necessary for the determination had been completed some time prior to the applications being made.
That is, the Tribunal had provided a timetable for the fair provision by the parties of materials and submissions on which they rely. In that sense, the 'hearing' had occurred and it was only our consideration thereof and our resulting determination which remained outstanding.
In this case, the application for review was made on 22 July 2022.
On 9 August 2022, the President made orders joining the second to fourth respondents and requiring the first respondent to file its Bundle of Documents by 23 August 2022.
Orders were made on 31 January 2023 that:
(a)by 28 February 2023, the applicant was to file and serve a Statement of Issues, Facts and Contentions (SIFC), a bundle of documents and any written submissions he wishes to rely upon;
(b)by 28 March 2023, each of the practitioners were to file and serve a SIFC and a bundle of documents; and may file and serve their written submissions.
On 21 March 2023 the deadline of 28 March 2023 was extended to 17 April 2023.
On 2 May 2023, orders were made that:
(a)the practitioners were given to 12 May 2023 to file and serve any further evidence and submissions.[142]
(b)the issue of leave, and if leave is granted, the application for review itself was to be determined on the papers following receipt of the further documents from the second to fourth respondents.
[142] The orders made on 2 May 2023 followed the previous receipt of submissions from the practitioners which appeared to be limited to the question of leave. They were therefore given the opportunity to make further submissions ahead of the reservation of both the question of leave and the review application itself if leave was granted.
On 6 June 2023, an application by the applicant seeking production of documents by the fourth respondent was dismissed, with associated orders allowing the fourth respondent to rely on an affidavit sworn 1 June 2023 and allowing him to file substituted submissions.
The applicant's email of 18 July 2023 which, printed out, extends to ~15 pages, ends by asking that it be treated as 'an application for leave to file a Supplementary Submission.' However, it commences by stating that, having read the SIFC's filed by the second to fourth respondents, the applicant has come to the view that they 'have not disclosed to the Tribunal a significant amount of crucial facts'. What follows is, overwhelmingly, a recitation of alleged 'facts' by the applicant.
Based on the above, it is apparent that:
(a)The applicant had known since June 2022 of the first respondent's case which is, as noted above, to the effect that each of the grounds of the complaint is misconceived. The applicant had also had, since 24 August 2022, the first respondent's Bundle of Documents.
(b)The applicant had had from June 2022 to 28 February 2023 to collate all relevant information and provide copies of all relevant documents and 'plead' all relevant facts in his SIFC necessary for his application for leave and, if leave is granted, for review of the first respondent's dismissal of the complaints;
(c)The applicant had had the SIFCs of the second to fourth respondents since 17 April 2023 to consider and, if necessary, to seek leave to amend his SIFC.
(d)The applicant had known since 12 May 2023 that the second to fourth respondents would not add to their bundles and SIFC's filed 17 April 2023.
(e)Despite the above matters, the applicant waited until mid‑July 2023 to put on what he says are facts that should have been provided by the second to fourth respondents.
Such delay, in our view, of itself warrants refusal of leave to put on what is, in effect, a supplementary SIFC.
In addition, if we were to grant leave it would necessitate leave being granted to each of the second to fourth respondents and possibly, the first respondent as well, to respond with supplementary or substituted SIFCs and/or bundles of documents to answer the additional matters raised by the applicant.
In circumstances where the matter had, in effect, been reserved since, at least, early June 2023 when the fourth respondent put on substituted submissions, the application should have, at least, provided an explanation for the delay and a statement to the effect that the applicant was not previously aware of matters which he sought leave to put before us.
However, there is nothing of that nature in the material emailed on 18 July 2023. Indeed, there is no explanation for the filing of the document at all, save that the applicant says that he is of the view that the second to fourth respondents should have previously disclosed the various matters described. It would appear from a reading of some of the material that it concerns matters that, at least, members of the applicant's family should have been aware of for some time.
In those circumstances, and for those reasons, we refused leave to file the email of 18 July 2023.
The application for a directions hearing was sought on the same grounds as leave was sought to file the email of 18 July 2023; that the second to fourth respondents have 'failed to disclose … fundamental facts'.
That application was also very lengthy; ~29 pages of what are framed as matters which the applicant says the second to fourth respondents 'must, … forthwith disclose' although, in fact, its contents were a combination of factual allegations (much of which are repeated from the 18 July 2023 email), and legal submissions that are said to follow from those facts.
Again, such alleged facts and submissions should have been put on in accordance with the Tribunal's orders. Having failed to do so, the application for directions should have included an explanation to the effect that the facts alleged were not previously known to the applicant and which explained the delay and which otherwise justified the application. Again, none of that occurred.
No purpose would have been served by a directions hearing. The applicant appeared to seek orders 'requiring' the second to fourth respondents to disclose certain facts. It is, of course, a matter for those parties to put on such material and make such submissions as they see fit.
In any event, even if orders had been made allowing the applicant to allege those facts and make related submissions, the respondents would be entitled to respond to them.
For those reasons, and given the principles set out above, taken from the Full Court in Camp, we refused the application.
Finally, although it is not stated expressly, the materials filed by the applicant suggests that the alleged 'failure' of the second to fourth respondents to disclose the matters raised by the applicant amounts to a breach of their ethical obligations. Such a complaint falls outside the Tribunal's current review jurisdiction, which is limited to a consideration of leave to review (and review if leave is granted) of the first respondent's decision to dismiss the various complaints.
Orders
We have found that each of grounds one to three and five to nine are misconceived. We have found that ground four is vexatious. We have also found each of the grounds to be unreasonable.
The reviewable decision should be affirmed and the application for leave to apply for review of the reviewable decision should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
RM
Associate to Deputy President Judge Jackson
5 DECEMBER 2023
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