THILLAGARATNAM and LEGAL SERVICES AND COMPLAINTS COMMITTEE
[2022] WASAT 116
•1 DECEMBER 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)
CITATION: THILLAGARATNAM and LEGAL SERVICES AND COMPLAINTS COMMITTEE [2022] WASAT 116
MEMBER: PRESIDENT PRITCHARD
MR J O'SULLIVAN, SENIOR MEMBER
MS M CONNOR, MEMBER
HEARD: 1 DECEMBER 2022
DELIVERED : 1 DECEMBER 2022
PUBLISHED : 22 DECEMBER 2022
FILE NO/S: VR 68 of 2022
BETWEEN: SCOTT THILLAGARATNAM
Applicant
AND
LEGAL SERVICES AND COMPLAINTS COMMITTEE
First Respondent
HAYDN ROSS ROBINSON
Second Respondent
PAUL MENDELOW
Third Respondent
Catchwords:
Application for review of decision of Legal Services and Complaints Committee to dismiss complaint - Where Committee in fact closed but did not dismiss complaint - Application by Committee to dismiss application for review - Whether Tribunal has jurisdiction to review complaint that has not been dismissed by Committee - Whether Tribunal has power to review handling of complaint by Committee
Legislation:
Competition and Consumer Act 2010 (Cth), Sch 2
Legal Profession Act 2008 (WA), s 435
Legal Profession Unform Law Application Act 2022 (WA)
State Administrative Tribunal Act 2004 (WA), s 29, s 47, s 47(2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| First Respondent | : | CR Bailey |
| Second Respondent | : | JA Thornton |
| Third Respondent | : | P Cahill SC |
Solicitors:
| Applicant | : | N/A |
| First Respondent | : | Legal Practice Board |
| Second Respondent | : | JA Thornton |
| Third Respondent | : | Barry Nilsson Lawyers (WA) |
Case(s) referred to in decision(s):
Armstrong and Medical Board of Australia [2022] WASAT 76
REASONS FOR DECISION OF THE TRIBUNAL:
(These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and infelicity of expression.)
Introduction
This is an application by the first respondent, the Legal Services and Complaints Committee (Committee) for the dismissal of an application for review made by the applicant on 3 August 2022 (Dismissal Application). The basis for the Dismissal Application is that the Committee says that the Tribunal has no jurisdiction to deal with the application for review (Review Application), because it has not yet made a decision which is capable of review by the Tribunal. The Committee contends the Tribunal must dismiss the Review Application. It contends that it is open to the Tribunal to do so pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The second and third respondents support the Dismissal Application.
The basis for the Dismissal Application was the Committee's understanding that the Review Application sought the review of a decision, communicated to the applicant by email on 25 July 2022, to close his complaint. In the Review Application, the applicant says that decision in relation to the conduct of the second and third respondents (Complaint) was tantamount to the dismissal of the Complaint and therefore reviewable under s 435 of the Legal Profession Act 2008 (WA) (LP Act).
In the course of the hearing of the Dismissal Application, it emerged that the applicant's case now is that he accepts that the email of 25 July 2022 did not convey that the Committee had dismissed the Complaint.
The applicant's concern is now that the Committee should not have put a hold on its investigation of the complaint, and certainly not after related proceedings in the Supreme Court (in CIV 1394 of 2022) came to an end. The applicant now wants the Tribunal to require the Committee to now investigate the complaint.
For reasons which we will explain, the Dismissal Application succeeds because no decision has been made by the Committee which is able to be reviewed by the Tribunal. The Review Application is therefore misconceived, and we will make an order pursuant to s 47 of the SAT Act that the Review Application be dismissed.
The Complaint
We will make some brief observations about the nature of the Complaint itself and how it has been dealt with, before turning to the proper understanding of the email of the 25 July 2022 and the question of jurisdiction more specifically.
The applicant made the Complaint to the first respondent on 26 April 2022. The Complaint was described by the applicant by adopting paragraphs 1 to 76 of a statement of claim he filed in the Supreme Court in CIV 1394 of 2022.
It is not necessary to say very much about the history of the Supreme Court litigation. It suffices to say that the applicant's daughter was involved in a dispute about her purchase of a unit in a strata complex. The applicant funded his daughter's engagement of the second respondent who, it appears, in turn engaged the third respondent to provide advice, and ultimately to act, in proceedings in the Supreme Court. Those proceedings sought relief against the vendors for their alleged failure to make a disclosure about relevant information in relation to the strata unit. Under the conditions of the contract, the vendors had warranted that they did not know of anything that would materially affect the buyer's use or enjoyment of the strata lot or the common property. It was alleged that in fact that information was known to the vendors.
The applicant was dissatisfied with the work done by the second and third respondents, and by the legal fees he was charged for the work done. It appears that the second and third respondents essentially ceased acting for the applicant's daughter on or about 20 July 2020 (although there is some suggestion that the third respondent subsequently continued to act for the applicant's daughter on instructions from another firm of solicitors).
In the Supreme Court proceedings in CIV 1394 of 2022 which the applicant has since brought against the second and third respondents, the applicant seeks damages or compensation pursuant to provisions of the Australian Consumer Law (ACL),[1] primarily on the basis that their conduct constituted misleading and deceptive conduct for the purposes of the ACL.
[1] Competition and Consumer Act 2010 (Cth), Sch 2 (ACL).
Insofar as the applicant adopted the entirety of the statement of claim filed in CIV 1394 of 2022 as the Complaint, the Complaint appears to have been understood as implicitly alleging that the second and third respondents engaged in unprofessional conduct or professional misconduct by virtue of engaging in the misleading and deceptive conduct and other conduct pleaded in the statement of claim in CIV 1394 of 2022.
How the Committee dealt with the Complaint
According to the affidavit of Mr Hall affirmed on 12 September 2022 on which the Committee relies in the Dismissal Application, the writ that the applicant lodged in CIV 1394 of 2022 was in fact not accepted for filing. The writ appears to have been received by the Court, initially, and was given a matter number and bears a filing stamp, but presumably it was thereafter rejected. In any event, Mr Hall deposed that on 20 May 2022 the proceeding in CIV 1394 of 2022 had come to an end.
However, on that date the applicant commenced another proceeding in the Supreme Court in CIV 1502 of 2022. The indorsement on the writ filed in that proceeding alleged that the defendants (the second and third respondents in these proceedings) engaged in misleading and deceptive conduct contrary to the ACL.
On 16 August 2022, the applicant filed a substituted writ of summons in CIV 1502 of 2022. While the statement of claim he then filed is not in the same terms as that filed in CIV 1394 of 2022, the broad thrust of it appears to be the same as the statement of claim filed in CIV 1394 of 2022. The applicant continues to claim that the second and third respondents engaged in misleading and deceptive conduct by virtue of their conduct in advising and representing his daughter and then charging for their legal work.
The factual dispute underlying the Review Application and the Dismissal Application arises from an email sent by Mr Dale Wescombe to the applicant, dated 25 July 2022. In that email, Mr Wescombe advised the applicant that:
As I had not received a response to my email and the matter appeared to be before the courts, I closed the complaint of 27 May 2022 pending the conclusion of the court matter.
That email did not state that the Complaint was dismissed, but merely said it was closed, so as not to interfere or be seen to interfere, with the ongoing Supreme Court proceeding. As we have mentioned, initially the applicant appears to have regarded that email as conveying that the Complaint had been dismissed. He demanded the reinstatement of the Complaint. The position was then clarified by Mr Bailey in a letter dated 28 July 2022, in which Mr Bailey said:
For the avoidance of doubt, your complaint against … [ the second and third respondents] has not been dismissed.
Until recently, it appeared that the applicant continued to regard Mr Wescombe's email of 25 July 2022 as constituting a decision by the Committee to dismiss the Complaint.
However, in the course of his submissions today, the applicant accepted that the email did not contain a decision to dismiss the Complaint, but rather to put the Complaint on hold, pending the conclusion of the Supreme Court proceedings.
The applicant's case in relation to the Review Application, therefore, now appears to be that as the proceedings in CIV 1394 of 2022 have come to an end, the Committee has wrongly continued to leave the Complaint on hold. The applicant submits that the Tribunal must have jurisdiction to be able to review that decision and to direct the Committee to investigate the Complaint. Indeed, that is the relief he ultimately seeks in the Review Application.
We do not accept that the Tribunal has jurisdiction to deal with the Review Application as now understood. Before outlining why, we observe that we do not agree with the applicant's construction of the email Mr Wescombe sent on 25 July 2022.
As we have observed, the proceedings in CIV 1394 of 2022 were completed on 20 May 2022. A writ was filed in CIV 1502 of 2022 on the same date. As we have noted, the indorsement on that writ refers to misleading and deceptive conduct claims against the second and third respondents under the ACL. At least at that stage, therefore, it appeared that the same kind of claim was being pursued in the Supreme Court in CIV 1502 of 2022 as had been pursued in CIV 1394 of 2022.
For that reason, as at 25 July 2022 when Mr Wescombe sent his email, his reference to the closure of the Complaint pending the conclusion of the 'court matter', cannot on its face be understood solely by reference to the proceeding in CIV 1394 of 2022, but should be understood as a reference to the proceedings in the Supreme Court by the applicant against the second and third respondents for causes of action including misleading and deceptive conduct claims under the ACL.
We do not accept that, on its face, the email conveys a decision by the Committee to halt the investigation of the Complaint solely because of CIV 1394 of 2022, and pending its completion.
The Tribunal's jurisdiction to determine the Review Application
Turning then to the question of the Tribunal's jurisdiction, we start by observing that the Tribunal is a creature of statute. It only has such jurisdiction as is conferred on it by enabling Acts, and the SAT Act.
We have not been able to identify any provision in the Legal Profession Uniform Law (WA) (Uniform Law) or in the Legal Profession Act 2008 (WA) (LP Act) which confers jurisdiction on the Tribunal to review a decision made by the Committee in relation to the conduct of an investigation of a complaint, and specifically a decision as to whether an investigation should be put on hold while related civil proceedings are being litigated in a court.
The applicant has suggested that perhaps s 29 of the SAT Act confers jurisdiction on the Tribunal to review a decision of that kind. That section deals with the Tribunal's power in the exercise of its review jurisdiction, but depends on the existence of that review jurisdiction in the first place.
For the avoidance of doubt, s 435 of the LP Act on which the applicant relies in his Review Application, does not in our view confer jurisdiction on the Tribunal to review the 'decision' made or conveyed by Mr Wescombe on 25 July 2022. Section 435 gives the Tribunal jurisdiction in relation to the dismissal of a complaint.
The applicant concedes that Mr Wescombe's email did not convey a decision of that kind. That was a proper concession having regard to the terms of that decision, and also to the ordinary meaning of the words 'closed the complaint', and to the context, which expressly made clear that the Complaint had not been dismissed.
Furthermore, Mr Wescombe's 'decision' was not a decision made by or on behalf of the Committee or by a delegate of the Committee.
The fact that there are related civil and criminal proceedings on foot in a court against a practitioner is not a prohibition on the Committee receiving and investigating a complaint against that practitioner (see s 410(6) of the LP Act).
In some cases, there may be good reasons why it will not be appropriate to pursue an investigation while proceedings are underway, for example, if the investigation might prejudice the outcome of those proceedings.
We make no comment on the merits of the 'decision' conveyed by Mr Wescombe to put the investigation on hold. For present purposes, it suffices to say that we are unable to identify anything in the Uniform Law, the Uniform Law Application Act or in the LP Act (to the extent that it continues to apply to the investigation) which gives the Tribunal jurisdiction to review a decision in relation to the conduct of the investigation by the Committee.
For completeness, we note that it was not contended by the applicant that the Committee had made what might be described as a constructive dismissal of the Complaint by refusing to investigate it pending the outcome of the proceedings in CIV 1394 of 2022.
We digress to observe that public bodies which refuse to exercise their duties may be amenable to prerogative relief in the form of the writ of mandamus to compel them to perform those duties. However, the Tribunal does not have jurisdiction to undertake judicial review. We make no comment as to whether this is a case of that kind. The content of the email of Mr Wescombe of 25 July 2022, and the letter of Mr Bailey of 28 July 2022, to which we have referred, very much suggests the contrary.
Conclusion
We are of the view that the Tribunal has no jurisdiction to deal with the Review Application. In our view, it is properly understood as being misconceived, and its continuation would be an abuse of process.
Having regard to what was said in Armstrong,[2] the proper course is, therefore, to dismiss the Review Application under s 47 of the SAT Act.
[2] Armstrong and Medical Board of Australia [2022] WASAT 76.
Orders
The Tribunal orders that:
1.The name of the first respondent is amended to the Legal Services and Complaints Committee.
2.Pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA), the application for review lodged on 3 August 2022 is dismissed.
3.By 16 December 2022, the second and third respondents are to file in the Tribunal and give to the applicant any application for costs, and any written submissions in support, of not more than 5 pages.
4.By 27 January 2023, the applicant is to file in the Tribunal and give to the respondents any written submissions in opposition to an order for costs, of not more than 5 pages.
5.The matter is to be listed for hearing on a date to be fixed for a duration of 1 hour, not before 30 January 2023.
6.The first respondent is excused from attending that hearing.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
EN
Associate to the Honourable Justice Pritchard
22 DECEMBER 2022
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