Thillagaratnam v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee - [2024] WASCA 60

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 60
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   24 MAY 2024
DELIVERED          :   24 MAY 2024
PUBLISHED           :   24 MAY 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

ON APPEAL FROM:
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

Catchwords:

Appeal - Practice and procedure - Application by appellant for disclosure and production of documents by respondents - Whether disclosure and production of documents needed to ensure the effective exercise of the court's appellate jurisdiction or otherwise appropriate for the due and effective administration of justice - Whether disclosure and production of documents proportionate - Turns on own facts

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 42(2)(kb)(i)

Result:

Application dismissed

Category: B

Representation:

Counsel:

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

Solicitors:

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

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

Billabong Gold Pty Ltd v Vango Mining Ltd [2022] WASCA 35
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478
Goldsmith v Legal Profession Complaints Committee [2022] WASCA 167
Jebb v Superior Lawns Australia Pty Ltd [2018] WASCA 123
Thillagaratnam v Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [2023] WASAT 118

JUDGMENT OF THE COURT:

Overview

This appeal came before us pursuant to a registrar's notice to attend dated 27 March 2024 to consider the appellant's application in an appeal dated 20 March 2024. By that application the appellant sought orders against the second, third and fourth respondents for the production of documents as specified in the attachment to the appellant's application, such documents to be included in a draft Green Appeal Book index.
In this court the appellant seeks to appeal against a decision of the State Administrative Tribunal made 5 December 2023[1] refusing leave to review a decision of the first respondent pursuant to s 415(1)(b) of the Legal Profession Act 2008 (WA) (LPA) to dismiss a complaint against the second, third and fourth respondents. Any appeal to this court against that decision requires leave.[2] The question of leave has been referred to the appeal hearing. If leave to appeal is granted the appeal can only be brought on a question of law.[3]
[1] Thillagaratnam v Law Complaints Officer as the delegate of the Legal Profession Complaints Committee[2023] WASAT 118 (primary reasons).
[2] State Administrative Tribunal Act 2004 (WA) s 105(1).
[3] State Administrative Tribunal Act s 105(2).
After hearing from the appellant in support of his application in appeal dated 20 March 2024 we determined that the application must be dismissed. We made orders accordingly. We said that written reasons for the order dismissing the application would follow. These are our reasons for dismissing the appellant's application in an appeal dated 20 March 2024.

Factual and procedural background to the appeal

The second, third and fourth respondents are legal practitioners. At the relevant time the second and third respondents practised in a law firm. The fourth respondent was a barrister at the independent bar.
Each of the second, third and fourth respondents were either engaged or were proposed to be engaged by or on behalf of the appellant's daughter to act on her behalf in legal proceedings. Relevantly, the law firm acted for the daughter for what the Tribunal described as a 'brief period' between July and mid‑August 2020. The retainer between the daughter and the law firm was terminated on or about 14 August 2020 and the law firm rendered an invoice for an amount totalling $11,549.56 inclusive of GST. Those costs were later taxed and allowed in an amount of $8,095.[4]
[4] Primary reasons [92] ‑ [93], [97].
The appellant guaranteed the payment of his daughter's legal costs under a costs agreement between the daughter and the law firm associated with the second and third respondents.
After the termination of the daughter's retainer with the law firm the daughter made complaints to the Legal Profession Complaints Committee (Committee) under the LPA against each of the second, third and fourth respondents. Those complaints were later withdrawn. The daughter asked that no further complaints be accepted in her name for those matters.
The appellant made a separate complaint to the Committee under the LPA against each of the second, third and fourth respondents. The complaint had nine separate, but related, grounds. The Tribunal summarised the grounds as follows:
1.The second and fourth respondents knew, as early as 21 July 2020, that the daughter had no arguable case.
2.The second and third respondents entered into a costs agreement with the daughter whilst knowing that the daughter's case had no merit or prospect of a successful outcome.
3.The second respondent did not comply with cl 1 of sch 1 to the costs agreement thereby exceeding the agreed scope of work (such that no fees were payable).
4.The second respondent entered into an agreement with the fourth respondent to act as counsel without the daughter's permission.
5.The second respondent raised the appellant's liability as guarantor from $5,000 to $80,000.
6.The second respondent and the fourth respondent came to an express agreement to deceive the appellant in order to recover fees accrued by the fourth respondent under a separate and different costs agreement.
7.The second and third respondents, through the law firm, refused to lodge and serve all files in relation to the 44 items specified in the law firm's invoice for assessment.
8.At an assessment of costs before a registrar of the Supreme Court 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 - had the second respondent lodged all files the bill would have been dismissed entirely.
9.There have been offences committed under the Criminal Code.
On 17 June 2022 the first respondent, as delegate of the Committee, summarily dismissed the appellant's complaint against the second, third and fourth respondents. In respect of each ground the first respondent found the complaint to be misconceived and unreasonable.
The appellant then sought review of the first respondent's decision under s 435 of the LPA (as applied by s 319 of the Legal Profession Uniform Law Application Act 2022 (WA)). As the first respondent found each ground of the complaint to be unreasonable the appellant was precluded from applying for a review of the decision without the leave of the Tribunal (LPA s 435(2)).
The review application was determined on the documents. The parties filed various documents including statements of issues, facts and contentions, as well as further written submissions. The Tribunal's reasons identify the materials that were before the Tribunal.[5] Those materials include a bundle of documents filed by the appellant. The Tribunal also referred to the appellant's application for review, which itself attached some 69 annexures.
[5] Primary reasons [22].
The Tribunal concluded that each of the nine grounds of the appellant's complaint were unreasonable and either misconceived or vexatious. Accordingly, the Tribunal did not regard the first respondent's decision to dismiss the appellant's complaint to be wrong or attended with sufficient doubt to justify the grant of leave to review. In addition, in the Tribunal's view, no substantial injustice would be occasioned if the decision to dismiss the complaint was left unreversed. It followed that the application for leave to review the first respondent's decision to dismiss the complaint was refused and the application for review was dismissed.[6]
[6] Primary reasons [9] ‑ [10], [297]. See also: [138] ‑ [140] (complaint grounds 1 ‑ 2); [157] ‑ [159] (complaint ground 3); [169], [181] ‑ [183] (complaint ground 4); [193], [202] ‑ [205] (complaint ground 5); [232] ‑ [235] (complaint ground 6); [246], [248] ‑ [249] (complaint ground 7); [251], [261] ‑ [263] (complaint ground 8); [265] ‑ [268] (complaint ground 9).
The Tribunal also identified that there was a potential issue as to the appellant's standing to make the complaint. That issue arose in as much as the appellant contended that in terms of s 410(1)(e) of the LPA he was a:
person who has or had a direct personal interest in the matters alleged in the complaint.
The Tribunal did not determine the standing issue in relation to each ground of the appellant's complaint. However, the Tribunal did find that the appellant lacked standing in relation to grounds 1 and 4.[7]
[7] Primary reasons [141], [168].

The appeal in this court

The appellant has filed his appellant's case. There are stated to be 29 grounds of appeal. The figure of 29 grounds is something of an understatement as a number of the so‑called grounds contain two or more paragraphs which allege separate errors (see eg grounds 18, 20, 21, 22 and 29).
Each ground, at least as a matter of form, alleges an error of law. That is to be expected so far as the appeal may only be brought on a question of law. We are not, however, to be taken to accept that the grounds as expressed in the appellant's case are properly to be understood to raise an appeal brought on a question of law. To the contrary, on a provisional basis some of the grounds appear to raise disputes of fact or mixed fact and law.
Broadly speaking, the grounds allege that:
1.The Tribunal erred so far as it considered that the appellant lacked standing under s 410(1)(e) of the LPA to make a complaint about the second, third and fourth respondents (grounds 1 ‑ 4, 16).
2.The Tribunal erred in taking into account irrelevant considerations (grounds 3, 5).
3.The Tribunal erred in failing to take into account relevant considerations (grounds 6 ‑ 8, 11, 16 ‑ 18, 22, 24 ‑ 28).
4.The Tribunal erred by making wrong findings or irrelevant and wrong findings (grounds 9 - 10, 12 ‑ 15, 17 ‑ 23).
5.The Tribunal denied the appellant procedural fairness, resulting in a miscarriage of justice so far as: (a) the Tribunal did not require the first respondent to file a statement of issues, facts and contentions; and (b) the second, third and fourth respondents were only required to file the documents on which they proposed to rely rather than all documents relevant to the issues in the proceedings (ground 29).
There is no ground of appeal that directly challenges the Tribunal's finding that no substantial injustice would be occasioned if the decision to dismiss the complaint was left unreversed. Nor is this finding attacked in the appellants written submissions in his appellant's case. Similarly the appellant's written submissions omit any mention of why it is in the interests of justice that the appellant be granted leave to appeal in this court.

The application in an appeal dated 20 March 2024

By his application in an appeal dated 20 March 2024 the appellant seeks:
1.Nine categories of documents as against the second respondent.
2.Nine categories of documents as against the third respondent.
3.Ten categories of documents as against the fourth respondent.
The documents sought by the appellant's application in an appeal are wide‑ranging.
As against the second respondent, the appellant seeks: file notes of communications between the second and fourth respondents during the period 21 July 2020 to 14 August 2020; file notes in respect of all items in the law firm's bill of costs together with the filed bill of costs; file notes and correspondence in respect of the second respondent's discussions with one or more of the appellant, the appellant's daughter and the fourth respondent during the period 2 to 6 August 2020; file notes of communications with and correspondence with the Committee during the period August 2020 to June 2022; file notes of communications with and correspondence with a legal practitioner previously acting for the daughter during the period 21 July 2020 to 14 August 2020; file notes of communications and correspondence regarding the second respondent's refusal to release client documents to the appellant and the appellant's daughter; a file note of 30 July 2020 (a copy of which is apparently already in the possession of the appellant);[8] an affidavit of the legal practitioner previously acting for the daughter; and the filed bill of costs, all court orders and the transcript in relation to the taxation of the law firm's costs.
[8] Affidavit of S Thillagaratnam sworn 20 March 2024 attachment 'ST‑46'.
It is evident from that recitation of the documents sought against the second respondent that some of the documents are either already in the possession of the appellant or would be available to the appellant by other means if he were to make due enquiry.
As against the third respondent, the appellant seeks: file notes of communications between the third and fourth respondents during the period 21 July 2020 to 14 August 2020; an 'invitation' to guarantee the daughter's costs agreement; an order of the court made 3 December 2020 as well as a transcript of the hearing of that date; file notes in respect of items in the law firm's bill of costs; a draft advice of 5 August 2020; an incomplete draft advice of 7 August 2020; the appellant's instructions to the third respondent to provide the advices; correspondence with the appellant or his daughter refusing to produce documents in the law firm's invoice and bill of costs; and file notes of communications with and correspondence with the Committee.
Again, some of those documents sought from the third respondent are documents which the appellant already has (eg the guarantee invitation as well as correspondence with and instructions from the appellant) or are documents which the appellant may himself obtain by other means (eg the court order and transcript).
As against the fourth respondent, the appellant seeks: file notes of communications with and correspondence with the legal practitioner previously acting for the daughter during the period November 2017 to 31 August 2020; a costs agreement dated 3 June 2020;[9] an invoice dated 3 June 2020;[10] file notes of communications with and correspondence with a barrister who apparently did devilling work for the fourth respondent during the period early May 2020 to 2 June 2020; and file notes of communications with and correspondence with one or both of the second and third respondents during the period 21 July 2020 to 14 August 2020.
[9] The appellant already has a copy of this document. See Affidavit of S Thillagaratnam sworn 20 March 2024 attachment 'ST‑32'.
[10] The appellant already has a copy of this document. See Affidavit of S Thillagaratnam sworn 20 March 2024 attachment 'ST‑33'.
The previous paragraph only describes five categories of documents. We have mentioned that ten categories of document are sought as against the fourth respondent. The remaining categories of documents are more precisely stated sub‑sets of documents that fit within the five categories we have described in the previous paragraph.
The application is supported by the appellant's affidavit sworn 20 March 2024. In that affidavit the appellant provides some background to the dispute which provides the factual context for the present appeal. In part this describes dealings from September 2017 with the legal practitioner who acted for the appellant's daughter before the law firm associated with the second and third respondents accepted a retainer to act for the daughter. The appellant then alleges, repeatedly, that the second, third and fourth respondents failed to disclose or produce various documents or categories of documents in the primary proceedings in the Tribunal. On some occasions the appellant's affidavit attaches a copy of the document that he seeks by way of an order for production by this court. For example, as against the fourth respondent, the appellant seeks production of a costs agreement dated 3 June 2020 and an invoice dated 3 June 2020. Copies of those documents are attachments 'ST‑32' and 'ST‑33' to the appellant's affidavit.
The appellant's affidavit is tendentious. For example, in asserting that one or more of the second, third or fourth respondents failed to disclose or produce various documents, the appellant ‑ in general ‑ assumes the existence of such documents. The existence of documents such as file notes of particular events cannot be assumed. There may or may not be file notes of a particular event. The appellant also uses the pejorative language that the second, third or fourth respondents failed to disclose or produce various documents. There was no relevant obligation, by order or otherwise, to make disclosure or give production. Moreover, on multiple occasions the appellant asserts failures to disclose to the Tribunal alleged facts or contended for legal conclusions as to conduct which are plainly contentious. The appellant complains, for example, that the second and fourth respondents failed to disclose or produce file notes that would have been evidence that the fourth respondent's fee estimate to the second respondent was unlawful. Similarly, the appellant complains that the second respondent failed to produce transcript which would have shown that he, the second respondent, gave false and misleading evidence.
By way of conclusion, the appellant's affidavit informed the court that the basis for the application was that:
The application for production is in respect of documents that should have been produced to the Tribunal in [the primary proceedings]. The non‑disclosure of the documents by the second, third and fourth respondents in [the primary proceedings] has resulted in a denial of procedural fairness and the interests of justice necessitates an order that the second, third and fourth respondents be ordered to produce the documents.[11]
[11] Affidavit of S Thillagaratnam sworn 20 March 2024 par 94.
The appellant's affidavit is deficient in two material respects. First, as has already been observed, with minor exceptions the affidavit assumes the existence of the documents sought by the application. There is no attempt to demonstrate reasonable grounds for being fairly certain that there are relevant documents that ought to have been disclosed or produced. Second, beyond the assertion reproduced in the preceding paragraph, there is no articulation of the relevance of the documents to the issues arising in the appeal. It is not enough, for example, to act on an a priori assumption that the second, third and fourth respondents are likely as legal practitioners to have kept file notes. If the contents of the file notes are claimed to be relevant to one or more issues arising in the appeal there must be a prima facie case as to the contents of the file notes and how the contents might be relevant to those issues.

Disposition

The second and third respondents submitted that there was no legal basis on which the appellant should be able to obtain production of documents. We reject that submission to the extent that it is directed to this court's power to compel production. The Court of Appeal has an implied power to make such orders as are needed to ensure the effective exercise of its jurisdiction (at least against the parties to an appeal against whom final relief might be granted).[12] That power, in an appropriate case, will extend to making orders to compel the production of documents where the production of such documents is necessary to enable the Court of Appeal to perform its appellate function.
[12] Jebb v Superior Lawns Australia Pty Ltd [2018] WASCA 123 [60]; Billabong Gold Pty Ltd v Vango Mining Ltd [2022] WASCA 35 [48], [64].
There is also a relevant statutory power under r 43(2)(kb)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA).[13] An order to compel the production of documents may, in a particular appeal, be an order that is appropriately made for the due and effective administration of justice. Goldsmith v Legal Profession Complaints Committee[14] is a recent example of an occasion where such an order was made.
[13] The jurisdiction under r 43 may be exercised by the Court of Appeal: Supreme Court (Court of Appeal) Rules r 5A.
[14] Goldsmith v Legal Profession Complaints Committee [2022] WASCA 167.
It is one thing to say that there is power to make the orders sought by the appellant. It is quite another to say that orders to that effect should be made in the present appeal. We were not, and are not, satisfied that the appellant has made out a case for the wide‑ranging discovery type orders that were sought in the appellant's application dated 20 March 2024.
Senior counsel for the fourth respondent submitted that the documents sought in the application were not and could not be relevant to the determination of the appeal. A similar submission was made on behalf of the second and third respondents. The only possible relevance of the documents sought is in relation to the second aspect of ground 29, a ground asserting a denial of procedural fairness so far as the second, third and fourth respondents were only required to file documents on which they proposed to rely on in the proceedings rather than all documents relevant to the issues in the proceedings.
The entirety of the appellant's written submissions in support of this part of ground 29 read as follows:
President Pritchard erred in law when her Honour made an order on 31 January 2023 which required the second, third and fourth respondents to file documents on which they propose to rely in the proceedings resulted in a substantial miscarriage of justice as the second, third and fourth respondents were given a dispensation from filing any documents. The question of law is whether President Pritchard should have ordered the 2^nd, 3^rd and 4^th respondents to have file documents relevant to the proceedings.[15] (reproducing syntax and typographical errors from the original)
[15] Appellant's submissions par 86.
It can be seen from the appellant's submissions that there is an immediate difficulty with ground 29. There is no appeal against the Tribunal's order made 31 January 2023. The appeal is against the orders made 5 December 2023 refusing leave to review the first respondent's decision of 17 June 2022 and otherwise dismissing the appellant's application for review of the first respondent's decision. It might be, however, that the appellant might be able to rely on the principle that an interlocutory order which affects the final result can be challenged in an appeal against final judgment.[16] Even so the appellant needs to demonstrate error in the order made 31 January 2023.
[16] See Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 [5].
Error in the order made 31 January 2023 is not demonstrated by obtaining fulsome discovery on appeal in the hope of uncovering something that might sustain an argument that the Tribunal was wrong to conclude that the various grounds of the appellant's complaint against the second, third and fourth respondents were unreasonable and either misconceived or vexatious. Error in the order made 31 January 2023 must be demonstrated by reference to the materials then before the Tribunal and the arguments that were then put to the Tribunal. Self‑evidently those materials do not include additional documents of the kind now sought by the appellant's application dated 20 March 2024. Moreover, if the appellant is successful in establishing error in the order made 31 January 2023 he does not need to go on to show by reference to documents of the kind now sought that he necessarily would have been successful in the primary proceeding. It will be enough if there is a realistic possibility that a different decision could have been made had there been an order on 31 January 2023 of the kind contended for by ground 29. That is a question of reasonable conjecture capable of being evaluated by reference to the materials that were in fact before the Tribunal in the primary proceedings.
There is, so understood, no proper basis for this court to exercise its power to compel the production of the documents sought by the appellant. The documents as sought by the appellant are not necessary to enable the Court of Appeal to perform its appellate function. Nor is production of the documents appropriate for the due and effective administration of justice.
The preceding reasons meant that the appellant's application in an appeal dated 20 March 2024 had to be dismissed.
Separately, and providing an additional reason for the dismissal of the appellant's application in an appeal dated 20 March 2024, we were and are not satisfied that the production of the documents sought by the appellant would be proportionate in the context of the present appeal at the present time. In that respect it may be accepted that disclosure processes ‑ such as discovery ‑ promote the ascertainment of truth in litigation and are often an essential part of the proper administration of justice. There is a public interest in having available all evidence relevant to the issues in the litigation. But disclosure may also be unnecessarily burdensome or oppressive. It is well‑established that the court should restrict the volume of documents and the labour and expense involved to that which is needed for fairly disposing of the issues in the proceedings. The notion of proportionality as expounded in O 1 r 4B(1)(e) - (f) of the Rules of the Supreme Court 1971 (WA) is thus a key criterion in determining the proper extent of any disclosure obligation.
The appellant in the present appeal requires leave to appeal. There is no appeal as of right. Despite filing his appellant's case the appellant has not identified why it is in the interests of justice that he be granted leave to appeal. The question of leave to appeal is particularly acute in circumstances where the Tribunal refused leave to review the first respondent's decision and there is no ground of appeal that directly challenges the Tribunal's finding that no substantial injustice would be occasioned if the decision to dismiss the complaint was left unreversed.
In our view, in circumstances where the question of leave to appeal is unresolved, even if ‑ contrary to our opinion ‑ the documents sought by the appeal were material to the issues in the appeal ‑ an order for production of the kind sought by the appellant would be disproportionate. An order for production of documents in an appeal is an exceptional order. In the circumstances of this appeal, before any wide‑ranging order for production of documents of the kind sought, the appellant should first be required to establish that there is a proper case for leave to appeal.

Conclusion

For these reasons we dismissed the appellant's application in an appeal dated 20 March 2024. The appellant was ordered to pay the second, third and fourth respondent's costs of the application. Costs followed the event.
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 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. Accordingly, at the conclusion of the hearing, we directed that the Court of Appeal registrar issue a notice to attend: (1) to consider and determine whether the court should revoke the order referring the question of leave to the appeal hearing; and (2) if so, to consider and determine ‑ at the same hearing ‑ the question of leave to appeal.

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