Thillagaratnam v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee - [2024] WASCA 73

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THILLAGARATNAM -v- LAW COMPLAINTS OFFICER AS THE DELEGATE OF THE LEGAL PROFESSION COMPLAINTS COMMITTEE [2024] WASCA 73
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   21 JUNE 2024
DELIVERED          :   21 JUNE 2024
PUBLISHED           :   24 JUNE 2024
FILE NO/S:   CACV 122 of 2023
BETWEEN:   SCOTT THILLAGARATNAM
Appellant
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

FILE NO/S: CACV 123 of 2023
BETWEEN: SCOTT THILLAGARATNAM
Appellant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
PAUL MENDELOW
Second Respondent

FILE NO/S: CACV 124 of 2023
BETWEEN: SCOTT THILLAGARATNAM
Appellant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
HAYDN ROSS ROBINSON
Second Respondent

ON APPEAL FROM:
For File No:   CACV 122 of 2023
Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL
Coram:   JUDGE H JACKSON, DEPUTY PRESIDENT
DR S WILLEY, SENIOR MEMBER
MS M CONNOR, MEMBER

Citation: THILLAGARATNAM and LAW COMPLAINTS OFFICER AS THE DELEGATE OF THE LEGAL PROFESSION COMPLAINTS COMMITTEE & ANOR [2023] WASAT 118
File Number            :   VR 61 of 2022
For File No:   CACV 123 of 2023
Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL
Coram:   PRESIDENT PRITCHARD
MR J O'SULLIVAN, SENIOR MEMBER
MS R LAVERY, MEMBER

File Number            :   VR 92 of 2023
For File No:   CACV 124 of 2023
Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL
Coram:   PRESIDENT PRITCHARD
MR J O'SULLIVAN, SENIOR MEMBER
MS R LAVERY, MEMBER

File Number : VR 96 of 2023

Catchwords:

Appeal - Practice and procedure - Application for leave to appeal - Where appeal is against orders dismissing the appellant's application for leave to apply for a review of a decision of regulatory authority to dismiss complaints by appellant against legal practitioners - Whether any substantial injustice in leaving primary orders undisturbed - Turns on own facts

Legislation:

Interpretation Act 1984 (WA), s 37
Legal Profession Act 2008 (WA) (repealed), s 410, s 415, s 425, s 435
Legal Profession Uniform Law Application Act 2022 (WA), s 313, s 318, s 319
State Administrative Tribunal Act 2004 (WA), s 37, s 105

Result:

Leave to appeal refused
Appeals dismissed

Category: B

Representation:

CACV 122 of 2023

Counsel:

Appellant	:	In person
First Respondent	:	No appearance
Second Respondent	:	M C Douglas
Third Respondent	:	M C Douglas
Fourth Respondent	:	P E Cahill SC

Solicitors:

Appellant	:	In person
First Respondent	:	Legal Practice Board
Second Respondent	:	Bennett
Third Respondent	:	Bennett
Fourth Respondent	:	Barry Nilsson Lawyers (WA)

CACV 123 of 2023

Counsel:

Appellant	:	In person
First Respondent	:	C R Bailey
Second Respondent	:	P E Cahill SC

Solicitors:

Appellant	:	In person
First Respondent	:	Legal Profession Complaints Committee
Second Respondent	:	Barry Nilsson Lawyers (WA)

CACV 124 of 2023

Counsel:

Appellant	:	In person
First Respondent	:	C R Bailey
Second Respondent	:	J A Thornton

Solicitors:

Appellant	:	In person
First Respondent	:	Legal Profession Complaints Committee
Second Respondent	:	Haydn Robinson

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

Esber v The Commonwealth (1992) 174 CLR 430
Legal Profession Complaints Committee v Rayney [2017] WASCA 78; (2017) 51 WAR 142
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213; (2018) 54 WAR 89
Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331
SH v Chief Executive Officer of Department of Communities [2019] WASCA 31
Thillagaratnam v Doan [2022] WASC 185
Thillagaratnam v Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [2023] WASAT 118
Thillagaratnam v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [2024] WASCA 60
Thillagaratnam v Legal Services and Complaints Committee [2022] WASAT 116

REASONS OF THE COURT:

On 21 June 2024, we considered the appellant's applications for leave to appeal in these appeals (CACV 122, 123 and 124 of 2023). At the conclusion of the hearing, we ordered that leave to appeal in each of the appeals was refused and the appeals were dismissed. We said we would publish reasons for making those orders later. These are our reasons for making those orders.

Background

The appeals all arise out of complaints made by the appellant under the Legal Profession Act 2008 (WA) (LP Act). Under that Act, the then Legal Profession Complaints Committee (LPCC) was given functions in relation to the investigation and determination of complaints against Australian legal practitioners. The LP Act was repealed on 1 July 2022. Since that time, regulation of the legal profession in Western Australia has generally been governed by the Legal Profession Uniform Law Application Act 2022 (WA) (Application Act) and the Uniform Law adopted by that Act. The Application Act establishes the Legal Services and Complaints Committee (LSCC) and gives the LSCC functions under the LP Act as continued by transitional provisions.

CACV 122 of 2023

The factual and procedural background to this appeal is summarised in this court's decision of 24 May 2024.[1]
[1] Thillagaratnam v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [2024] WASCA 60.
The appeal arises out of the engagement of Bennett + Co (now known as Bennett) by the appellant's daughter from July - August 2020. The second and third respondents, Mr Zusman and Mr MacLennan, were legal practitioners who worked at Bennett. The fourth respondent, Mr Mendelow, is counsel at the independent bar who was engaged by Bennett on behalf of the appellant's daughter. Bennett was retained to review documents in proceedings then pending in the General Division of this court (CIV 1461 of 2018) and, if of the view that the appellant's daughter's claim in those proceedings was arguable, to represent her at a trial listed for November 2020.[2]
[2] Thillagaratnam v Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [2023] WASAT 118 [146].
Bennett's retainer was terminated on or about 14 August 2020. Bennett subsequently rendered an invoice for amounts totalling $11,549.56 including GST and disbursements. The bill of costs was eventually taxed and allowed in the sum of $8,095. The appellant's only interest was as the guarantor of his daughter's liability under a costs agreement of 23 July 2020.[3] It may be noted that the daughter's claim proceeded to trial and was ultimately successful,[4] although in awarding judgment for the daughter as plaintiff the trial judge observed that the 'case illustrates the folly of litigation' and that the daughter's victory was likely to be pyrrhic.[5] There is no evidence that Bennett ever called on the appellant's guarantee.
[3] [2023] WASAT 118 [47], [91] - [97].
[4] Thillagaratnam v Doan [2022] WASC 185.
[5] [2022] WASC 185 [1] - 10].
When Bennett sought a taxation of costs, the appellant's daughter made complaints to the LPCC.[6] The appellant's daughter ultimately withdrew her complaints and asked that no further complaints be accepted in her name for the matter.[7] However, the appellant persisted with his own complaints.
[6] [2023] WASAT 118 [98].
[7] [2023] WASAT 118 [4].
On 17 June 2022, the first respondent, acting as delegate for the LPCC, dismissed the appellant's complaints, finding each ground of complaint to be misconceived and unreasonable.[8] On 22 July 2022, the appellant applied for a review of that decision by the Tribunal. The Tribunal determined that it had jurisdiction to deal with the review application under former provisions of the LP Act, pursuant to transitional provisions in s 318 and s 319 of the Application Act.[9]
[8] [2023] WASAT 118 [24].
[9] [2023] WASAT 118 [25], [28] - [29].
On 5 December 2023, the Tribunal determined the appellant's application on the papers. From voluminous material filed in the Tribunal, the Tribunal identified nine grounds on which review was sought (referred to at [8] of our earlier decision). In detailed written reasons, the Tribunal found grounds 1 - 3 and 5 - 9 to be misconceived and ground 4 to be vexatious. The Tribunal found each of the grounds to be unreasonable.[10] The Tribunal also found that no substantial injustice would be occasioned if the decision to dismiss the complaints was left unreversed.[11] The Tribunal found that the appellant lacked standing to make the complaints the subject of grounds 1 and 4.[12] The Tribunal expressed doubts about the appellant's standing in relation to grounds 2 and 6 but found it unnecessary to make a formal finding in that regard.[13]
[10] [2023] WASAT 118 [297].
[11] [2023] WASAT 118 [140] (grounds 1 - 2), [159] (ground 3), [183] (ground 4), [205] (ground 5), [235] (ground 6), [263] (grounds 7 and 8), [268] (ground 9).
[12] [2023] WASAT 118 [141] (ground 1), [168] (ground 4).
[13] [2023] WASAT 118 [144] - [145] (ground 2), [236] (ground 6).
The Tribunal affirmed the reviewable decision and refused the appellant's application for leave to apply for a review of the decision.
On 19 December 2023, the appellant appealed against the orders made by the Tribunal. His appellant's case filed on 25 January 2024 contains 29 grounds of appeal. The grounds of appeal are lengthy and often raise multiple matters. They span over 12 pages and 45 paragraphs.

CACV 123 of 2023 and CACV 124 of 2023

These appeals also arise out of CIV 1461 of 2018, the legal proceedings brought in the General Division of this court by the appellant's daughter. Mr Robinson, the second respondent in CACV 124 of 2023, was the original solicitor for the appellant's daughter in those proceedings. Mr Mendelow, the second respondent in CACV 123 of 2024, was engaged by Mr Robinson as counsel for the appellant's daughter.
The background to these appeals is summarised in a decision of the Tribunal on 1 December 2022.[14]
[14] Thillagaratnam v Legal Services and Complaints Committee [2022] WASAT 116.
On 26 April 2022, the appellant made a complaint against Mr Mendelow and Mr Robinson to the LPCC. He alleged that the practitioners engaged in misleading or deceptive conduct and other unprofessional conduct or professional misconduct in acting for his daughter in CIV 1461 of 2018. Subsequently, the appellant sought to bring proceedings against the practitioners in the General Division of this court (CIV 1394 of 2022) seeking damages in respect of the same conduct. Those proceedings came to an end on 20 May 2022, but on that day the appellant commenced new proceedings making the same complaint (CIV 1502 of 2022).[15] On 25 July 2022, an officer of the LSCC wrote to the appellant advising him that:[16]
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.
[15] [2022] WASAT 116 [7] - [14].
[16] [2022] WASAT 116 [15].
On 3 August 2022, the appellant applied for a review of a purported decision made on 25 July 2022, which the appellant initially characterised as a dismissal of his complaint to the LSCC. The LSCC applied for a dismissal of the review application on the basis that it had not yet made a decision capable of review by the Tribunal.[17] By the time of the hearing of the LSCC's dismissal application, it was common ground that the correspondence of 25 July 2022 did not constitute a dismissal of the appellant's complaint.[18]
[17] [2022] WASAT 116 [1].
[18] [2022] WASAT 116 [3], [18].
On 1 December 2022, the Tribunal dismissed the appellant's review application on the basis that the Tribunal had no jurisdiction to deal with it, it was misconceived and its continuation would be an abuse of process.[19]
[19] [2022] WASAT 116 [35].
The appellant subsequently discontinued CIV 1502 of 2022 and the LSCC proceeded to determine his complaint. The LSCC dismissed the appellant's complaint against Mr Mendelow on 2 August 2023. It dismissed the complaint against Mr Robinson on 10 August 2023. The appellant applied to the Tribunal for a review of those decisions on 25 August 2023 and 6 September 2023.[20]
[20] Tribunal ts 11/12/23, 35.
A difficulty for the appellant arose because the provisions of the Application Act came into force on 1 July 2022 (commencement date). The Uniform Law adopted by the Application Act does not provide for a complainant to appeal against or seek review in the Tribunal of the dismissal of a complaint by the LSCC.
The Tribunal held that transitional provisions in s 313 of the Application Act allowed the LSCC to continue to investigate and determine a complaint made before the commencement date as if the provisions of the LP Act had not been repealed. However, the Tribunal found that none of the transitional provisions in s 316 - s 319 of the Application Act applied to give the appellant a right of review in respect of a decision made by the LSCC to dismiss a complaint after the commencement date. The Tribunal also held that s 37 of the Interpretation Act 1984 (WA) did not give the appellant a right of review, essentially on the basis that he had no accrued right to a review on the commencement date.[21] The Tribunal held that it had no jurisdiction to review the decisions to dismiss the complaints and dismissed the review proceedings on the basis that they were misconceived.[22]
[21] Tribunal ts 11/12/23, 36 - 38.
[22] Tribunal ts 11/12/23, 40; primary orders.
On 19 December 2023, the appellant appealed against the Tribunal's dismissal of his review applications. His appellant's cases in appeals CACV 123 of 2023 and CACV 124 of 2023 each identify 19 grounds of appeal over 5 pages. The grounds are prolix, and many of the grounds proceed on the basis (rejected by the Tribunal on 1 December 2022) that the LSCC's correspondence of 25 July 2022 was a dismissal of his complaints. In any event, that correspondence was sent after the commencement date.

Statutory provisions

Under s 410(1)(e) of the LP Act, a complaint about an Australian legal practitioner could be made by 'any other person who has or had a direct personal interest in the matters alleged in the complaint'. Section 415(1)(b) of the LP Act provided for the LPCC to summarily dismiss a complaint if it was vexatious, misconceived, frivolous or lacking in substance. Under s 425, the LPCC could dismiss the complaint if satisfied that there was no reasonable likelihood that the practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct, or it was in the public interest to do so.
Section 435(1)(a) of the LP Act provided that, subject to s 435(2), a person aggrieved by a decision of the LPCC to dismiss a complaint may apply to the Tribunal for a review of the decision. However, under s 435(2) of the LP Act:
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.
Section 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) relevantly provides that the Tribunal may dismiss a proceeding which it believes is 'frivolous, vexatious, misconceived or lacking in substance' or is 'otherwise an abuse of process'.
Section 105 of the SAT Act provides that a party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal. Relevantly, an appeal in this case can only be brought on a question of law.

Leave to appeal: general principles

The principles concerning the grant of leave to appeal under s 105 of the SAT Act were considered by this court in SH v Chief Executive Officer of Department of Communities.[23] We repeat that summary for ease of reference.
[23] SH v Chief Executive Officer of Department of Communities [2019] WASCA 31 [49] - [53].
A party may only appeal against a decision of the Tribunal if the court gives leave to appeal.
As this court recognised in Paridis v Settlement Agents Supervisory Board,[24] the power to grant leave is conferred in general terms and leave should be granted if, in all of the circumstances, it is in the interests of justice that there should be a grant of leave.
[24] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] (Buss JA, Wheeler & Pullin JJA agreeing).
While the ultimate issue is whether the grant of leave is in the interests of justice, Buss JA (as his Honour then was) in Paridis stated that, in considering whether to grant leave, regard should be had to the guidelines articulated by the court in Secretary to the Department of Premier and Cabinet v Hulls.[25] In Hulls, Phillips JA said:[26]
When leave is sought to appeal … it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.
[25] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331.
[26] Hulls [16] (Phillips JA, Tadgell & Batt JJA agreeing). These principles were also applied in Legal Profession Complaints Committee v Rayney [2017] WASCA 78; (2017) 51 WAR 142 [87] - [88].
These guidelines are relevant. They are not, as Buss JA emphasised in Paridis, determinative. Whether leave is granted must depend upon the circumstances of each particular case. In this regard, the grant of leave should not be regarded as a perfunctory exercise. The legislative purpose in requiring the grant of leave is to reduce unnecessary appeals from decisions of the Tribunal.

Revoking earlier orders referring leave applications to the appeal hearing

On 2 February 2024, this court made orders referring the appellant's applications for leave to appeal to the hearing of the appeals. In our previous decision, we observed:[27]
In evaluating the appellant's application in an appeal dated 20 March 2024 it was necessary to give close consideration to the appellant's case. Having done so we formed the provisional view that it may be appropriate to revoke the order referring the question of leave to appeal to the appeal hearing and instead to determine the question of leave to appeal separately as a preliminary matter before listing the appeal hearing.
[27] [2024] WASCA 60 [44].
At the hearing of 24 May 2024, we directed the Court of Appeal registrar to issue a notice to attend for the purposes of considering and determining whether the court should revoke the orders referring the question of leave to the appeal hearing and, if the orders are revoked, to consider and determine the question of leave to appeal.

Having considered the matter in further detail, particularly in light of the submissions made at the hearing on 21 June 2024, we were satisfied that it is in the interests of justice to deal with the question of leave to appeal separately and in advance of any hearing of the appeals. We were therefore satisfied that the orders referring the applications for leave to appeal to the hearing of the appeals should be revoked, so that the question of whether leave to appeal should be granted can be dealt with at this stage. At the hearing on 21 June 2024, no party contended that we should not deal with the question of leave to appeal at this stage.

Leave to appeal in CACV 122 of 2023

In determining the interests of justice in appeal CACV 122 of 2023, it is important to note the nature of the findings which are the subject of the appeal. The LPCC dismissed the appellant's complaints on the basis that they were misconceived and unreasonable. The Tribunal determined the complaints on the same basis and refused leave to appeal in part on the ground that no substantial injustice would be occasioned if the decision to dismiss the complaints was left unreversed. Proceedings in this court should not be a forum for the appellant to pursue misconceived and unreasonable claims.
The appellant's grounds of appeal are prolix and do not clearly articulate any question of law which might result in the Tribunal's decision being set aside. There is no reasonable basis for the appellant to assert the multiplicity of errors of law contained in the appellant's case. The number and nature of the grounds are such as to impose a significant burden both on the court and the respondents in dealing with them. Our review of the grounds does not disclose any apparent basis on which the Tribunal might have erred in dismissing the review proceeding.
Further, the refusal of leave to appeal will not adversely affect any right, duty or liability of the appellant. His interest in the matters the subject of the complaints was as a guarantor under a costs agreement for costs which have been taxed in the amount of $8,095. There is no evidence that this amount has not been paid by his daughter or that the guarantee has been called on by Bennett. The costs of the appeal proceedings are highly likely to be disproportionate to the appellant's liability under the guarantee. Further, determination of the complaints in the appellant's favour would not affect the existence or amount of any liability which the appellant may have under the guarantee. The appellant is merely a person making a complaint to a regulatory authority who is dissatisfied by the response of the regulatory authority.
In the above circumstances, it is not in the interests of justice for the appellant to be granted leave to appeal in a matter in which there is no substantial injustice in leaving the Tribunal's decision undisturbed even if it were assumed to be incorrect.
We note that the appellant contended that the court should make orders granting leave to appeal and allowing the appeal by reason of the first respondent filing an amended notice of respondent's intention. The amended notice indicates that the first respondent does not intend to take part in this appeal and will accept any order made in the appeal other than as to costs. For reasons explained to the appellant at the hearing, there is no merit in that submission. The other respondents continue to oppose the appeal and the application for leave to appeal. Even if they did not, this court would only order that leave to appeal be granted if satisfied that it was appropriate to make that order. For the reasons explained above, we are not so satisfied.

Leave to appeal in CACV 123 of 2023 and CACV 124 of 2023

Despite the prolixity and confusion in the appellant's many grounds of appeal, the question of law on which these appeals turn is whether the right of review conferred by s 435 of the LP Act was continued in operation by s 37 of the Interpretation Act. Section 261 of the Application Act provides that neither pt 15 of that Act (which repeals the LP Act) nor pt 16 of that Act (which contains the transitional provisions referred to in [39] and [40] below) prejudices or affects the application of the Interpretation Act in relation to the repeal of the LP Act under s 260 of the Application Act.
At the hearing on 21 June 2024, the appellant indicated that he did not rely on the specific transitional provisions in pt 16 of the LP Act. For the following reasons, the appellant was correct to accept that none of the provisions in pt 16 applied.
Section 318 of the Application Act in its terms applies only where, before the commencement date, the LPCC made a decision to dismiss a complaint under the LP Act. When s 318 applies, a person aggrieved may apply to the Tribunal for a review of the decision under s 319 of the Application Act. Section 319 only applies in its terms if there was an application for review commenced under the LP Act prior to the commencement date or an application for review made after the commencement date under s 318(2) of the Application Act. Therefore, s 318 and s 319 can only apply where the LPCC made a decision to dismiss a complaint prior to the commencement date. That did not occur even if (contrary to the Tribunal's unchallenged decision of 1 December 2022) the correspondence of 25 July 2022 constituted a dismissal of the complaint.
Section 313 of the Application Act authorised the LSCC to deal with the complaint in the present case 'under the old provisions dealing with the matter, including provisions necessary to give effect to those provisions, as if those provisions had not been repealed' (emphasis added). However, s 435 of the LP Act was not necessary to give effect to provisions in the LP Act for the LPCC to dismiss a complaint. Further, s 313 only provides for what the LSCC may do, and later transitional provisions specifically deal with review applications to the Tribunal. In that context, s 313 should not be construed as implicitly making transitional provision for review applications to the Tribunal.
Section 37(1) of the Interpretation Act most relevantly provides:
Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -
(c)affect any right …accrued … prior to the repeal;
…
(f)affect any investigation, legal proceeding or remedy in respect of any such right … ,
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced as if the repealing written law had not been passed or made.
At the hearing on 21 June 2024, the appellant contended that his right to seek review of the first respondent's decision was preserved by s 37(1)(f) of the Interpretation Act, so far as it referred to an 'investigation'. He abandoned reliance on s 37(1)(c) of that Act. This represents a departure from the position the appellant adopted before the Tribunal, where he indicated that he relied on s 37(1)(c) of the Interpretation Act.[28] It also represents a departure from the appellant's grounds of appeal, which do not refer to s 37(1)(f) but rather rely on s 37(1)(c) of the Interpretation Act.[29]
[28] Tribunal ts 11/12/23, 23.
[29] Ground 14 in CACV 123 of 2024 and CACV 124 of 2014.
The Tribunal correctly held that s 37(1)(c) of the Interpretation Act did not apply because the appellant had no accrued right to seek a review in the Tribunal. It is established that a right to obtain a merits review by an administrative tribunal may be an accrued right protected by s 37(1)(c) once a review application is instituted.[30] However, in the present case the potential right to seek review of a decision which has not been made at the time of the repeal of the LP Act is not an accrued right for the purposes of s 37 of the Interpretation Act.
[30] See Esber v The Commonwealth (1992) 174 CLR 430, discussed in Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213; (2018) 54 WAR 89 [88] - [101].
Section 37(1)(f), so far as it refers to an 'investigation' does not assist the appellant for two reasons. First, the exercise of the Tribunal's review jurisdiction is not an 'investigation' for the purposes of s 37(1)(f) of the Interpretation Act. Secondly, the investigation to which s 37(1)(f) refers is relevantly an investigation 'in respect of any such right', being relevantly an accrued right referred to in s 37(1)(c) of the Act. For the reasons just explained, s 37(1)(c) was not engaged in this case.
We note that much of the appellant's oral submissions were directed to an argument that the Tribunal's portal for the lodgement of review applications did not allow him to lodge an application in reliance on s 37 of the Interpretation Act. As we explained at the hearing, that submission does not assist the appellant. Whether the legislation confers a right of review is a question of statutory construction which is not affected by any errors that may have existed in the Tribunal's portal (a matter about which we make no comment). Further, as the Tribunal made clear at the hearing before it,[31] the fact that a different section may have been referred to in the application was not a basis for concluding that the Tribunal lacked jurisdiction. The Tribunal, quite properly, invited the applicant to rely on such statutory provision as he thought fit. The determination that the Tribunal lacked jurisdiction was unaffected by the form of the appellant's review applications.
[31] Tribunal ts 11/12/23, 17 - 18.
It remains the position that the difficulty for the appellant is not the form of his applications to the Tribunal but is rather the Tribunal's and our conclusion that, as a matter of statutory construction, s 37 of the Interpretation Act does not provide the appellant with a right of review in the present circumstances.
In these circumstances, the correctness of the Tribunal's decision is not attended by sufficient doubt to justify the grant of leave to appeal in CACV 123 of 2023 and CACV 124 of 2023.
Further, as in the case of CACV 122 of 2023, the refusal of leave to appeal will not adversely affect any right, duty or liability of the appellant. The appellant is merely a person making a complaint to a regulatory authority who is dissatisfied by the response of the regulatory authority. In these circumstances, there would be no substantial injustice in leaving the Tribunal's decision unreversed even if it were assumed to be incorrect.
In the above circumstances, it is not in the interests of justice to grant leave to appeal in either CACV 123 of 2023 or CACV 124 of 2023.

Conclusion and orders

For the above reasons, at the conclusion of the hearing on 21 June 2024, we made the following orders in each of the appeals (CACV 122, 123 and 124 of 2023):
1. The order made by the court on 2 February 2024, referring the application for leave to appeal to the hearing of the appeal, is revoked.
2.Leave to appeal is refused.
3.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HQ
Associate to the Honourable Justice Vaughan
24 JUNE 2024