Turnbull and Johnston - [2012] WASAT 26

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION: TURNBULL and JOHNSTON [2012] WASAT 26

MEMBER: JUSTICE J A CHANEY (PRESIDENT)
JUDGE T SHARP (DEPUTY PRESIDENT)
MS M CONNOR (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 10 FEBRUARY 2012

FILE NO/S: VR 96 of 2011

BETWEEN: DANNY TURNBULL
Applicant
AND
JULIA JOHNSTON
First Respondent
LEGAL PROFESSION COMPLAINTS COMMITTEE
Second Respondent

Catchwords:

Legal profession Meaning of 'reasonable likelihood' Whether no reasonable likelihood of practitioner being found guilty of unsatisfactory professional conduct or professional misconduct by the Tribunal Application for review of decision to dismiss complaints Setting aside the decision in part Appropriate orders

Legislation:

Legal Profession Act 2008 (WA), s 401, s 402, s 403, s 412, s 414, s 415, s 421, s 424, s 424(1)(a), s 424(1)(b), s 425, s 426, s 426(1), s 428, s 435, Pt 13
State Administration Tribunal Act 2004 (WA), s 60(2)

Result:

Decision of Legal Profession Complaints Committee set aside in part
That part of complaint referred back to Legal Profession Complaints Committee for reconsideration

Category: B

Representation:

Counsel:

Applicant:     Self-represented
First Respondent           :     Ms PE Le Miere
Second Respondent       :     Ms J Johnson

Solicitors:

Applicant:     Self-represented
First Respondent           :     Law Complaints Officer
Second Respondent       :     Calverley Johnson

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

Barwick v Law Society of New South Wales (2000) 169 ALR 236; (2000) 74 ALJR 419; (2000) 21(3) Leg Rep 8; [2000] HCA 2; BC 200000083
Department of Agricultural and Rural Affairs v Binnie [1989] VR 836
Greenwood and Legal Profession Complaints Committee [2010] WASAT 31

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Turnbull made a number of complaints to the Legal Profession Complaints Committee against Ms Johnston arising from the discharge of her functions and duties as an independent children's lawyer appointed by the Family Court of Western Australian in a dispute concerning the interests of Mr Turnbull's child.
Upon investigation and consideration of all of the material submitted by both Mr Turnbull and Ms Johnston, the Legal Profession Complaints Committee was not satisfied that there was a reasonable likelihood that the State Administrative Tribunal would, upon a referral, find Ms Johnston guilty of either unsatisfactory professional conduct or professional misconduct. The Legal Profession Complaints Committee made the decision to dismiss the complaint pursuant to s 425 of the Legal Profession Act 2008 (WA).
Mr Turnbull sought a review of the Legal Profession Complaints Committee's decision to dismiss all of his complaints against Ms Johnston. The Tribunal undertook a review of the material provided by the Legal Profession Complaints Committee, Mr Turnbull and Ms Johnston. The Tribunal concluded that, in respect of two of the complaints made by Mr Turnbull against Ms Johnston, the Legal Profession Complaints Committee's decision to dismiss the same was not the correct and preferable decision. The Tribunal concluded that it could not be satisfied that there was no reasonable likelihood that the Tribunal, upon a referral, would find that Ms Johnston was guilty of unsatisfactory professional conduct or professional misconduct and, consequently, that the two complaints should not have been dismissed by the Legal Profession Complaints Committee. Accordingly, the Tribunal ordered that the Legal Profession Complaints Committee's decision to dismiss the two complaints be set aside and that the two complaints be remitted to the Legal Profession Complaints Committee for determination in accordance with the Tribunal's decision.
The Tribunal was satisfied, upon a review, that the Legal Profession Complaint's Committee's decision to dismiss Mr Turnbull's other complaints against Ms Johnston was the correct and preferable decision. The Tribunal was satisfied that there was no reasonable likelihood that the Tribunal, upon a referral, would find Ms Johnston guilty of unsatisfactory professional conduct or professional misconduct. To this extent, Mr Turnbull's application was dismissed.
Mr Turnbull sought an order directing a prosecution and the payment of compensation. Such matters do not arise for consideration in the application for review before the Tribunal and the application to this extent was dismissed.

The application to the Tribunal

On 30 May 2011, Mr Turnbull (applicant) made an application to the Tribunal to review the decision made by the Legal Practice Complaints Committee (Committee) made on 16 May 2011 whereby the applicant's complaints against Ms J Johnston (practitioner) were dismissed. The applicant sought an order:
To prosecute Ms Johnston for misconduct and professional negligence and financial compensation.
A directions hearing was convened on 14 June 2011 and programming orders were made. The directions hearing was adjourned to 26 July 2011 when further programming orders were made and the Tribunal ordered that the matter would be determined upon the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).

The issues

The following issues arise in this matter:
1)Whether the Tribunal's functions and powers upon a review under s 435 of the Legal Profession Act 2008 (WA) (LP Act) include the powers referred to in s 424 and s 425 of the LP Act.
2)The proper construction of s 425 of the LP Act.
3)What is the correct and preferable decision in respect of each of the complaints, the subject of this application?
4)What orders should the Tribunal make in consequence of the Tribunal's conclusions on review?

The applicant's complaints and the Committee's decision

On 16 May 2011, the Committee made a decision in respect of a complaint or series of complaints made by the applicant to the Committee concerning the conduct of the practitioner while she acted as the independent children's lawyer (ICL) for the applicant's young son (child) in proceedings then on foot in the Family Court of Western Australia concerning the residence of the child and the child's contact with the applicant.
The Committee's decision was made in writing and documented in its letter to the applicant dated 16 May 2011. In the decision, the Committee identified the applicant's complaints against the practitioner as follows:
1)The practitioner did not provide the applicant with a copy of a report dated 27 September 2002 made by the Department of Community Development (DCD) and that she was obliged to do so in the interest of fairness.
2)Alternatively to 1) above, the practitioner failed to provide a copy of the report dated 27 September 2002 by the DCD to the Family Court of Western Australia in circumstances in which she was obliged to do so and in circumstances in which she had advanced to the Family Court of Western Australia that the applicant's contact with the child should be limited by external supervision.
3)The practitioner failed to make a full and proper enquiry into whether the child was at risk from the applicant (in the context of criminal charges then pending against the applicant) when directed by a Judge of the Family Court of Western Australia to do so, and that she misled the Family Court of Western Australia on 1 August 2008 by indicating that she had spoken to Senior Constable Bell in relation to those charges when she had not.
4)The practitioner telephoned a child care agency, known as Cherished Cherubs, in or about October 2009 and discouraged the agency from supervising further contact between the applicant and the child and misled the Family Court of Western Australia by advising that another agency, Anglicare WA, had declined to supervise further contact between the applicant and the child.
5)On numerous occasions, the practitioner was discourteous to the applicant and refused to speak to the applicant.
6)The practitioner failed to act in the best interests of the child by failing to promote the relationship between the applicant and the child.
7)The practitioner provided false information about the applicant to the child's school.
The basis of the Committee's decision to dismiss each aspect of the complaint is summarised as follows:
1)In respect of complaints 1 and 2 referred to above, there was insufficient evidence to 'sustain' the complaint because:
a)there was no evidence that a report was made in writing on or about 27 September 2002;
b)the practitioner was not appointed as the ICL for the child until 4 October 2002;
c)the practitioner's position is that she had no recollection of receiving information concerning the substance of any report and has no written record of having received such information;
d)the applicant was aware of the substance of the DCD investigation said to be the subject of the said report; and
e)the applicant had agreed to a supervision of contact order, notwithstanding that he was aware, at the time of agreeing to that order, that DCD would take no further action in response to a complaint made by the mother of the applicant's son for mistreatment of the child by the applicant.
2)In respect of complaint 3:
a)there was insufficient evidence to support the complaint that the practitioner had not made enquiries with, and spoken to, Senior Constable Bell, upon which enquiries and discussion the practitioner based her recommendation to the Family Court of Western Australia on 1 August 2008 that the applicant had supervised contact with his son;
b)the Committee concluded that the practitioner failed to contact Senior Constable Mike Mull as requested by the applicant;
c)the failure referred to in (b)(i) was 'a serious error of judgment' in the particular circumstances; and
d)the 'serious error of judgment' was not one in respect of which 'there was a reasonable likelihood that the practitioner would be found guilty by the Tribunal of unsatisfactory professional conduct in respect of the matter'.
3)In respect of complaint 4:
a)before the Committee, the practitioner asserted that she had not discouraged Cherished Cherubs from further supervising the contact between the applicant and his child but that she did have 'concerns for the safety of [Cherished Cherubs'] employees';
b)the Committee 'inferred' that the practitioner informed Cherished Cherubs that she had concerns for the safety of Cherished Cherubs' employees when supervising the applicant with the child;
c)notwithstanding the inference referred to in 3)b) above, the Committee did not conclude that the practitioner did or did not inform Cherished Cherubs that she had concerns for the safety of Cherished Cherubs' employees;
d)the Committee considered that if the practitioner had so informed Cherished Cherubs that she had concerns for the safety of Cherished Cherubs' employees, then the practitioner had 'misconceived her role as ICL'; and
e)in any event, the Committee 'was not satisfied that there was a reasonable likelihood that the practitioner would be found guilty by [the Tribunal] of unprofessional conduct in respect of the matter' as a consequence of her misconception of the role of ICL.
4)In the absence of any specific examples of discourtesy by the practitioner towards the applicant (complaint 5), the Committee concluded that 'there was insufficient evidence to sustain the complaint'.
5)In respect of complaint 6:
a)the practitioner had made a recommendation to the Family Court of Western Australia that the child have supervised contact with the applicant;
b)the practitioner's obligation as an ICL was 'to ensure that the order was given effect';
c)based upon the Committee's conclusions that the practitioner had committed a 'serious error of judgment', possibly misconceived the role as ICL, and disclosed unnecessary and, in part, confidential information to a third party to the Family Court of Western Australia proceedings, the practitioner had lost sight of her obligations and was distracted by extraneous matters; and
d)however, the Committee 'was not satisfied that there was a reasonable likelihood that the practitioner would be found guilty by the …Tribunal of unsatisfactory professional conduct in respect of those matters'.
6)In respect of complaint 7:
a)the practitioner acknowledged that the comments attributed to her in the child's school's logbook on 2 and 3 September 2009 were 'probably made by her';
b)the practitioner concluded that she informed the child's school's representative that the applicant had a history of mental illness; had been charged with the commission of sexual offences; the police had led her to believe that further similar charges would be laid against the applicant; the applicant had a history of longterm mental illness and marijuana and amphetamine use; and the applicant was either quiet or manic and made threats;
c)the statements referred to in b) above should not have been made by the practitioner because it was not necessary for the practitioner to make the statements to respond to the query raised by the child's school's representative;
d)information concerning the state of mental health of the applicant was known by the practitioner only because she was in possession of an expert's report filed in the Family Court of Western Australia, which information was provided to her for the 'purpose of the Family Court litigation, and not for any other purpose'; and
e)the Committee concluded, however, that '[n]evertheless, [it] was not satisfied that there was a reasonable likelihood that the practitioner would be found guilty by the … Tribunal of unsatisfactory conduct'.
The Committee resolved to dismiss each of the complaints but noted its misgivings about some of the practitioner's conduct. The Committee informed the applicant that a letter of 'warning' would be sent to the practitioner and enclosed a copy of that letter with the decision. The Committee did not include a copy of its letter of warning in its bundle of documents. The practitioner did not include the letter of warning in her bundle of documents. The applicant did not provide the Tribunal with a copy of the letter of warning. The Tribunal called upon the Committee to provide the Tribunal with a copy of the letter of warning, which has now been placed upon the file.

The facts

As to complaints 1 and 2, in September 2002, a dispute arose between the mother of the applicant's child and the applicant, wherein the mother refused to allow the applicant any contact with the child. Until that time, the applicant had had unsupervised contact with the child. The mother had asserted to Princess Margaret Hospital's Child Protection Unit that the child had been returned to her on 3 September 2002 from the contact period with the applicant with bruises to his left leg and swelling to his face. The child was admitted to Princess Margaret Hospital. The applicant commenced recovery proceedings against the mother in the Family Court of Western Australia to restore the order for contact with the child. The mother commenced proceedings in the Family Court of Western Australia seeking an order that the applicant have no contact with the child.
On 5 September 2002, the mother contacted DCD and the latter investigated the allegation of mistreatment of the child by the applicant. On 27 September 2002, DCD concluded its investigation into the allegations made by the mother and found there to be no evidence of maltreatment of the child to have occurred. According to a letter dated 14 August 2004 from DCD to the Family Court of Western Australia referred to in the Committee's documents (DCD letter), on 27 September 2002, DCD advised 'both the mother and Gosnells Legal Service that it had found no maltreatment'.
On the basis of the information contained in the DCD letter, the investigation and the result of that investigation was not the subject of any documentation that was provided to the mother, the applicant or anyone else. The substance of the outcome of the DCD investigation was provided orally to the mother and her then legal representative. On 1 October 2002, the Committee contacted Princess Margaret Hospital's Child Protection Unit to ascertain the state of health of the child. He was informed that the child had been discharged into the care of his mother and was referred to DCD. On 7 October 2002, the applicant contacted DCD and was informed of the mother's allegations against him, DCD's investigation of those allegations and the conclusion that the evidence did not support a conclusion that the child had been maltreated by the applicant.
On 4 October 2002, the practitioner was appointed the ICL on the application of the mother.
On the next hearing date, the practitioner recommended to the Court that the applicant's contact with the child be supervised. The matter was adjourned. The applicant opposed the supervision order.
On 11 October 2002, the applicant agreed to supervised contact orders. On that occasion, the practitioner was not in attendance. The practitioner's colleague and partner appeared as the ICL. The applicant asserts that:
•DCD 'cleared' him of the mother's allegation of having maltreated the child; and
•the practitioner acted unfairly in failing to make the report of 27 September 2002 available to him and, apart from that issue, failed to inform the applicant that DCD had 'cleared' him of any maltreatment of the child and asserted that, in her opinion, only a supervised contact order would be suitable.
The applicant asserted that he did not know the outcome of the DCD investigation and consented to the supervised contact orders on 11 October 2002, because that was 'the only way I could see [the child]'. This assertion by the applicant is in stark contrast to the written statements made by the DCD case manager in the DCD letter, which asserts that, on 7 October 2002, the applicant was advised by the relevant team leader in DCD of the fact of the mother's allegation, DCD's investigation and DCD's conclusion. This information tends to establish that, as at 11 October 2002, the applicant knew that the mother's allegations had been, in effect, dismissed by DCD. If that is the case, the applicant could not assert that he signed the consent supervision orders so as to have some contact with the child because he believed his conduct was still under investigation and that he would not be entitled to unsupervised contact while DCD investigation was extant.
The practitioner was not appointed until 4 October 2002 and says that she did not receive any written report or documentation about the DCD investigation. This assertion is consistent with the information contained in the DCD letter.
It appears that the applicant had supervised contact with the child thereafter for some considerable time.
As to complaint 3, on 25 July 2008, certain criminal charges were laid against the applicant. These charges became the focal point of debate in the Family Court of Western Australia on 30 July 2008, as they were relevant to whether the applicant's contact with the child should be continued and, if so, whether supervision of that contact should be ordered by the Family Court of Western Australia. In a reference to the transcript of the proceedings on 30 July 2008, not contained in the Committee's s 24 bundle but provided to the Tribunal by the applicant, the Court put to the practitioner (at page 13):
His Honour: … his position is very clear. The charges first are unlikely to stick, secondly they're wrong and third in any event I don't pose a risk to my son.

In the face of this summary of the applicant's position, the practitioner stated that the Court should not adopt the position that the applicant did not pose a risk to the child. The following exchange then took place (at page 13):
His Honour:     No.
Johnston, Ms:     I think what I'm saying sir - - -
His Honour:     What do you need to do what do you need to do to get sufficient information to put some preliminary view about that[?] Because there are urgent case assessment I mean there's an urgent conference available tomorrow. When is it that ---
Johnston, Ms:     Well I could probably I think I can certainly make some further enquiries by tomorrow. …
Turnbull, Mr:    Excuse me your Honour if I can say something please? I've spoken to a detective this morning and they're prepared to put in writing that my son is at no risk with me. I've spoken to a detective a while ago, Mike Mull, who visits my home on a regular basis, he's prepared to put in writing ---
His Honour:    Then that's something you would be wanting to follow up as well. (Tribunal emphasis)
Johnston, Ms:    Yes, I'm happy to do that.
Turnbull, Mr:    Yes, I'll give her his number. Also your Honour, for the last three months I've been a member of a volunteer support group which is run by DCD, they've been coming to my house every Thursday with me for the last three months and they ---
…
The emphasised statement, in its context, appears to have been directed to the practitioner and she appears to have responded to the presiding Judge that she would contact Mr Mull. The practitioner's response could be construed as an unequivocal undertaking to the Family Court of Western Australia to make a particular enquiry of Mr Mull, along with other enquiries, so as to form a preliminary assessment about the nature and detail of the criminal charges pending against the applicant and whether, as a consequence of those charges, it could be said that contact between the child and the applicant supervised or not posed a risk to the child.
On 1 August 2008, the practitioner informed the presiding Judge in the Family Court of Western Australia that she had the 'opportunity of speaking to the police; Senior Constable Bell, who is a detective at the Canning Police Department'. The practitioner admitted to the Committee that she did not contact Mr Mull and instead made the enquiries that she thought were 'appropriate' (practitioner's letter to the Committee dated 16 September 2010). The applicant has asserted that the practitioner misled the Family Court of Western Australia and that, in fact, the practitioner did not speak with Senior Constable Bell. He relied upon an undated letter from the Minister for Police stating that Senior Constable Bell had had no contact with the Family Court of Western Australia concerning 'custody' issues involving the child and that she had not been served with 'a subpoena or witness summons from the Family Court'.
The practitioner produced handwritten and transcribed file notes of 31 July 2008 conversations with Senior Constable Bell concerning the child and the applicant's criminal charges. These documents, along with other file notes made by the practitioner, tend to suggest that the practitioner did, in fact, contact Senior Constable Bell, and there was a basis for her statement to the Family Court of Western Australia on 1 August 2008 and her contention that any contact between the applicant and the child should be supervised at a supervised contact centre.
As to complaint 4, that the practitioner discouraged Cherished Cherubs from supervising contact between the applicant and the Committee, the practitioner states that she originally organised and arranged for Cherished Cherubs to provide the supervision of the contact. The supervision reports issued by Cherished Cherubs support a conclusion that the applicant complied with the Family Court of Western Australia orders and Cherished Cherubs' rules and guidelines when exercising contact with the child. These reports are favourable to the applicant. However, there are emails and letters from Cherished Cherubs which indicate that the applicant had, on occasions, behaved aggressively with staff and had not complied with the agency's guidelines. None of these instances appeared to have resulted in conflict with the child, but appear to have arisen from the fact that the applicant believed that his contact with the child should be more flexible, should be in his home and should not be supervised. There appears to have been conflicts between the applicant and Cherished Cherubs over a period but, notwithstanding these episodes, Cherished Cherubs continued to supervise contact between the applicant and the child. The practitioner's response to the complaint contained in her letter of 16 September 2009 is as follows:
No, I did not discourage the agency from supervising further contact with [the applicant] and his son. I did have concerns which were borne out by the correspondence file notes etc in relation to paragraphs 6, 7 and 8 about the safety [of] the staff at [sic] particularly at Cherished Cherubs and Mrs Doubtfire as these agencies are not professional [sic] supervised contact services often employing older women.
It is from this statement that the Committee presumably has inferred that the practitioner had passed comment to representatives of Cherished Cherubs that agency staff had cause for concern for their safety when supervising contact between the applicant and the child.
The practitioner has produced a letter from Anglicare WA, dated 6 October 2009, which concluded that Anglicare WA suggested that the applicant and the child would 'benefit from attending an agency with more flexibility in its service delivery and in which [a] therapeutic relationship can be established'. The author of that letter stated that '[the applicant] has expressed on a number of occasions that he does not respect or wish to work with the Anglicare WA Case Manager and Service Manager'. The practitioner has produced a letter to 'Kinway', a name used by Anglicare WA, indicating that the practitioner handed a copy of the letter dated 6 October 2009 to the Family Court of Western Australia recording an apology by the applicant to Anglicare WA, and that Anglicare WA would continue in the role of supervisor of the contact between the applicant and the child.
As to complaint 5, concerning discourtesy, there was little information advanced to support the allegation by the Committee. However, there was information before the Committee that tended to suggest that the practitioner's and the applicant's relationship was severely strained to the point that a violence restraining order was granted against the applicant at the instance of the practitioner in late 2009. Before the Tribunal, the applicant produced a letter by Ms Leanne James, dated 28 June 2011, wherein Ms James states that she overheard a telephone conversation between the applicant and a person she believed to be the practitioner. She states that she could hear the person, whom she believed to be the practitioner, on the telephone, and presumed that she 'had raised her voice' and then hung up on the applicant while he was speaking.
Complaint 6 was dependent upon complaints 1 5 and complaint 7.
As to complaint 7, concerning the disclosure of information to the child's school's representative, the applicant complained that the statements made by the practitioner were false and slanderous. The statements are recorded in the child's school's logbook and are not denied by the practitioner.

The statutory framework

The LP Act provides for the regulation of the legal profession in Western Australia, and Pt 13 of the LP Act regulates the process of making and resolving complaints against members of the legal profession, and the disciplinary regime applicable to members of the legal profession (s 401 of the LP Act).
There is no issue that the practitioner is a person to whom the LP Act applies.
The two categories of conduct for which the practitioner can be disciplined are those described by s 402 and s 403 of the LP Act. Section 402 of the LP Act provides:
For the purposes of this Act
… unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
Section 403 of the LP Act provides:
(1)For the purposes of this Act
professional misconduct includes
(a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(2)For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.
Broadly speaking, unsatisfactory professional conduct concerns conduct that falls short of the standards of competence or diligence expected of a practitioner, while professional misconduct concerns and is related to more serious conduct including (but not necessarily) conduct that would justify a finding that a practitioner was not a fit and proper person to remain on the roll (Barwick v Law Society of New South Wales (2000) 169 ALR 236; (2000) 74 ALJR 419; (2000) 21(3) Leg Rep 8; [2000] HCA 2; BC 200000083).
The LP Act confers power upon the Committee to request further information and verification from the complainant (s 412 of the LP Act); to request submissions from the practitioner (s 414 of the LP Act); to summarily dismiss a complaint in certain circumstances (s 415 of the LP Act) and to investigate the complaint (s 421 of the LP Act).
Section 424 of the LP Act provides that, upon the conclusion of the Committee's investigation, the Committee is compelled to make one of the decisions identified in s 424 of the LP Act. The Committee 'must':
a)dismiss a complaint under s 425 of the LP Act (s 424(1)(a) of the LP Act); or
b)alternatively to a), take no further action, where the investigation was undertaken on the Committee's own initiative (s 424(1)(a) of the LP Act); or
c)alternatively to a) and b), take action pursuant to s 426 of the LP Act and summarily determine the matter, where the provisions of s 426 of the LP Act are met (s 424(1)(b) of the Act); or
d)alternatively to a), b) and c), refer the complaint to the Tribunal for determination pursuant to s 428 of the LP Act.
Section 425 of the LP Act provides:
After an investigation of a complaint against an Australian legal practitioner is completed, the Complaints Committee may dismiss the complaint if satisfied that
(a)there is no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct; or
(b)it is in the public interest to do so.
The scope of the Tribunal's functions and discretions on a review under s 435 of the LP Act include the functions and discretions referred to under s 424 and s 425 of the LP Act (Greenwood and Legal Profession Complaints Committee [2010] WASAT 31 (25 February 2010) (Greenwood)).
In Greenwood, the Tribunal concluded that the phrase 'reasonable likelihood' in the context of s 425 of the LP Act was synonymous with the phrase 'reasonably likely'. In that matter, the Tribunal referred to discussion of the meaning of the phrase 'reasonably likely' in Department of Agricultural and Rural Affairs v Binnie [1989] VR 836 at 842 per Marks J, Young CJ and Teague J:
The relevant expression here is 'reasonably likely' which has some analogy to 'fair probability'. It suggests the mathematical approach; the word 'reasonably' being a qualification of 'likely', alternatively, a measure in colloquial language of the 'likelihood'.
The expression 'reasonably likely' is substantially idiomatic, its meaning not necessarily unlocked by close dissection. In its ordinary use, it speaks of a chance of an event occurring or not occurring which is real -- not fanciful or remote. It does not refer to a chance which is more likely than not to occur, that is, one which is 'odds on', or where between nil and certainty it should be placed. A chance which in common parlance is described as 'reasonable' is one that is 'fair', 'sufficient' or 'worth noting'. …
In Greenwood, the Tribunal stated (at [28]):
Those observations are equally apt to describe the meaning of 'reasonable likelihood' in s 425 of the LP Act.
Again in Greenwood, the Tribunal observed (at [29]) that this assessment must be made by the Committee with consideration of:
… the Tribunal's approach to the proof of matters referred to it under s 428(1) of the LP Act. It is well recognised that the consequences for a practitioner of an adverse determination are such that clear and cogent evidence will be required before a finding of unsatisfactory professional conduct or professional misconduct is made: Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42 at [63]. That follows from the fact that although the standard of proof is on the balance of probabilities, nevertheless the Tribunal must feel an 'actual persuasion' of the occurrence or existence of a relevant fact in determining whether or not conduct of that kind has been made out: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 362 (Dixon J).
The assessment to be made by the Committee pursuant to s 425 of the LP Act is whether there is no reasonable likelihood, in the sense of no real chance, that the Tribunal would find the practitioner guilty of unsatisfactory professional conduct or unprofessional misconduct, having particular regard to the persuasive value of the evidence and information concerning those facts and circumstances before the Committee said to constitute the offending conduct.

In the case of each complaint made by the applicant, what is the correct or preferable decision?

Complaints 1 and 2 concern the alleged failure to provide the applicant with a DCD report dated 27 September 2002 and the alleged failure to provide a copy of that report to the Family Court of Western Australia prior to 11 October 2002.
The Tribunal affirms the Committee's decision to dismiss complaints 1 and 2. On the basis of the information before the Committee being the information contained in the DCD letter there is no real chance that the Tribunal would find the practitioner guilty of unsatisfactory professional conduct or professional misconduct. The DCD letter states that there was no written report of 27 September 2002, or at all, concerning the mother's allegation, the DCD investigation and its conclusion. Further, the DCD letter states that DCD only provided information concerning the outcome of the investigation of the mother's allegation to the mother and her legal representative immediately, and later to the applicant on 7 October 2002. There is no information or evidence before the Committee to suggest that the practitioner acquired any knowledge of the outcome of the DCD investigation from DCD. Further, the DCD letter states that the applicant knew of the outcome of the DCD investigation on 7 October 2002. Based upon these facts, if proved, there is no reasonable likelihood that the Tribunal would find the practitioner guilty of unsatisfactory professional conduct or professional misconduct. For these reasons, the Tribunal concludes that the Committee correctly dismissed complaints 1 and 2.
Complaint 3 involves the alleged failure to make proper enquiries concerning the risk posed by the applicant to the child on 31 July 2008 and the alleged misleading statement to the Family Court of Western Australia on 1 August 2008.
The Tribunal affirms the decision to dismiss the complaint insofar as it concerns any allegation that the practitioner did not make any enquiry of Senior Constable Bell. The evidence and information provided by the practitioner tends to suggest that an enquiry was made by the practitioner of Senior Constable Bell on 31 July 2008, and the practitioner truthfully informed the Family Court of Western Australia on 1 August 2008 that she had questioned Senior Constable Bell. If these facts are proved, there is no reasonable likelihood of the Tribunal making a finding that the practitioner was guilty of unsatisfactory professional conduct or professional misconduct. For these reasons, the Tribunal concludes that the Committee correctly dismissed this aspect of complaint 3.
However, the Tribunal concludes that the Committee's decision to dismiss the allegations and issues concerning the practitioner's undertaking to contact and question Mr Mull, and her alleged failure to do so, is not wellfounded. On the facts as disclosed by the transcript of the Family Court of Western Australia proceedings on 31 July 2008 and 1 August 2008 and the practitioner's response, it cannot be said that there is no chance that the Tribunal would find the practitioner guilty of unsatisfactory professional conduct or professional misconduct. Such facts, if proved, give rise to the possibility of such a finding. As to the cogency of the evidence, the transcript of the hearing on 31 July 2008 and 1 August 2008, and the practitioner's admission that she did not contact Mr Mull, and instead made the enquiries that she considered appropriate, are sufficiently cogent to be capable of actually persuading the Tribunal of contravening conduct. The Tribunal notes that the practitioner has not stated whether she perceived her responses to the presiding Judge of the Family Court of Western Australia on 31 July 2008 as an undertaking by her to that Court to make enquiries of Mr Mull. The Tribunal concludes that it cannot be reasonably concluded that there is no real chance of the Tribunal finding the practitioner guilty of unsatisfactory professional conduct or professional misconduct. For these reasons, the Tribunal concludes that the Committee's dismissal of complaint 3 is not the correct or preferable decision and, instead, the correct or preferred decision is to make a decision to determine the complaint pursuant to s 426 of the LP Act, or to refer the complaint pursuant to s 428 of the LP Act as directed by s 424 of the Act.
Complaint 4 is the alleged discouragement of Cherished Cherubs from supervising the applicant's contact with the child and the alleged misleading of the Family Court of Western Australia by asserting that Anglicare WA would not continue to supervise the applicant's contact with the child.
As to the complaint concerning the allegation of misleading the Family Court of Western Australia concerning Anglicare WA's willingness to continue supervising the applicant's conduct with the child, the Tribunal concludes that, on the basis of Anglicare WA's letter to the practitioner dated 6 October 2009, the practitioner did have a basis to assert that Anglicare WA was unwilling to act as the supervisor. The practitioner admits in her letter to Kinway on 7 October 2009 that she handed a copy of the Anglicare WA letter dated 6 October 2009 to the Family Court of Western Australia on 7 October 2009 and that she acknowledged that she had since been informed of a change in Anglicare WA's position. The Tribunal concludes that, upon those facts, there is no reasonable likelihood that the Tribunal would find the practitioner guilty of unsatisfactory professional conduct or professional misconduct. For these reasons, the Tribunal concludes that this aspect of the complaint was correctly, but implicitly, dismissed by the Committee.

As to the allegation that the practitioner discouraged Cherished Cherubs from continuing to supervise the applicant's contact with the child, the Tribunal concludes that the evidence and information adduced by the practitioner tends to suggest that the operators of Cherished Cherubs had made its own assessment of the applicant, and had given the applicant indication from time to time that Cherished Cherubs would discontinue its supervision on account of conduct by the applicant. That evidence, when weighed with the admission by the practitioner that she did have 'concerns' for the safety of the agency's employees, lacks the capacity or cogency to persuade the Tribunal of the practitioner's guilt of unsatisfactory professional conduct or professional misconduct.
A communication of her concerns for the safety of Cherished Cherubs' employees to the operators of Cherished Cherubs does suggest that she misconceived of her role as ICL. The Guidelines for the Independent Children's Lawyer states that the ICL is 'appointed to represent and promote the best interests of a child in family law proceedings'. If the practitioner did, in fact, make comments to the operators of Cherished Cherubs concerning her opinion of the risks of danger to the employees of the agency associated with the supervision of the applicant's contact with the child, it could not be reasonably concluded, on the basis of such conduct, that there is no real chance that the Tribunal will find the practitioner guilty of unsatisfactory professional conduct or professional misconduct. The practitioner had not denied making comments to Cherished Cherubs and had admitted having concerns.
However, the practitioner has not made an admission that she actually communicated her concerns to the operators of Cherished Cherubs. Nor can it be reasonably inferred, from her statement in her letter to the Committee dated 16 September 2009, that she implicitly admitted communicating her concerns to the operators of Cherished Cherubs. The Tribunal concludes that, on the basis of the material before the Committee, there is no reasonable likelihood of the Tribunal finding that the practitioner discouraged the operators of Cherished Cherubs from continuing to supervise the applicant's contact with the child. For these reasons, the Tribunal concludes that the Committee correctly dismissed complaint 4.
Complaint 5 concerns allegations of the practitioner's persistent rudeness towards the applicant.
There is no doubt that legal practitioners are subject to a duty to act with honesty, fairness and courtesy in their dealings with each other and with unrepresented parties, and possibly bear a more onerous duty when dealing with unrepresented parties (Greenwood at [42] citing GE Dal Pont, Lawyers' Professional Responsibility, 3rd ed, 2006 at 21.110 and 21.225). However, there is insufficient evidence or information to support the allegation in this matter. The applicant's assertion without further specificity is not sufficiently persuasive of the alleged facts. Further, the letter dated 28 June 2010 by Ms James amounts to no more that assumptions about her observations of a telephone communication by the applicant. She does not state positively that the person to whom the applicant spoke was the practitioner; that she positively can say that she observed the practitioner raising her voice at the applicant during that telephone call; or that it was the practitioner who terminated the telephone call while the applicant was speaking. This evidence lacks the persuasive force required to prove an instance of discourtesy by the practitioner towards the applicant. For these reasons, the Tribunal concludes that there is no reasonable likelihood that the Tribunal would find the practitioner guilty of unsatisfactory professional conduct or professional misconduct. Accordingly, the Tribunal concludes that the Committee correctly dismissed complaint 5.
Complaint 6 involves the allegation that the practitioner failed to promote the father and son relationship, which was in the best interests of the child.
The primary objective of an ICL is to act impartially in the best interests of the child. There is no express fetter on that obligation, to the effect, that the ICL is obliged to foster any particular relationship. The question is, however, whether the practitioner did discharge her duties of impartiality and to act in the best interests of the child. Whilst complaints 3 and 7 could possibly result in a finding that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, those complaints alone or together, if made out, do not necessarily result in a conclusion that the practitioner did not act impartially or in the best interests of the child.
The practitioner maintained a stance that contact between the applicant and the child required supervision. Whilst the practitioner may have been distracted by concerns she had about the applicant's behaviour towards third parties and herself, the material before the Committee does not necessarily establish a failure to act impartially and a failure to act in the child's best interests. It could be concluded that the practitioner did act in the child's best interests in advancing a case for supervised access. It could be said that she was overly cautious, but such a comment would not detract from the fact that she acted in the child's best interests. It was therefore open to the Committee to conclude that there was no reasonable likelihood that the Tribunal would find the practitioner guilty of unsatisfactory professional conduct or professional misconduct in respect of complaint 6. For these reasons, the Tribunal concludes that the Committee correctly dismissed complaint 6.
Complaint 7 is the allegation that the practitioner disclosed untruthful information to the child's school's representative.
A single expert report commissioned by the practitioner in her role as ICL and filed in the Family Court of Western Australia does not appear to support the statements made by the practitioner as recorded in the child's school's logbook that the applicant suffered mental illness, had a long history of mental illness and had a history of amphetamine abuse. The basis of these statements is not identified. The statements concerning the charges laid against the applicant, a history of use of marijuana, and his alleged manic and threatening behaviour is supported by that report. The Committee correctly observed that these statements were unnecessarily made, as the child's school's representative sought guidance on the applicant's statement that he intended to come to the child's school to drop off the child's bicycle for him to ride. The Committee also correctly observed that the information, insofar as it was based on the expert report, was confidential to the parties and for use by the practitioner in the Family Court of Western Australia proceedings, and for no other purpose. The disclosure of that information and the making of the other statements are outside the scope and function of an ICL. It was not relevant to the practitioner's role as the child's ICL.
In the Tribunal's view, it cannot be reasonably concluded that there is no reasonable likelihood of the Tribunal finding that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct. For these reasons, the Tribunal concludes that the Committee's dismissal of complaint 7 is not the correct or preferable decision and, instead, the correct or preferable decision is to determine the complaint pursuant to s 426 of the LP Act or to refer the complaint pursuant to s 428 of the LP Act, as directed by s 424 of the Act.

What orders should the Tribunal make?

The correct and preferable decision is that complaints 3 and 7 should not be dismissed, pursuant to s 425 of the LP Act, and the Committee should not have concluded that there was no reasonable likelihood of the Tribunal finding that the practitioner was guilty of unsatisfactory professional conduct or professional misconduct. In respect of complaints 1, 2, 4, 5 and 6, the Tribunal concludes that the correct and preferable decision is that the same should be dismissed, and were correctly dismissed by the Committee.
Consistently with the Tribunal's earlier decision in Greenwood, the Tribunal will therefore set aside the Committee's decision to dismiss complaints 3 and 7 and shall refer those complaints to the Committee for reconsideration in accordance with these reasons for decision. Mr Turnbull sought an order directing that the practitioner be prosecuted and that he be paid compensation. The Tribunal declines to make such orders and dismisses the application to that extent. The decision to prosecute and the manner of any prosecution (summarily before the Committee, pursuant to s 426 of the LP Act or upon referral to the Tribunal by the Committee, pursuant to s 428 of the LP Act) are matters that the Committee has power to decide, pursuant to s 424 of the LP Act. The Committee did not consider prosecution of the complaints against the practitioner as it decided, instead, to dismiss all of the complaints. The issue of discipline and compensation can only arise in the event of a successful prosecution of a complaint. Such matters do not arise on this application for review. For these reasons, the Tribunal will not make any order that the Committee 'prosecute the practitioner' or pay 'compensation' as sought by the applicant.
The Committee may be inclined to consider dealing with the matter pursuant to s 426 of the LP Act. However, that would require the Committee to be satisfied of the matters set out in s 426(1) of the LP Act and for the practitioner to consent to the exercise of that power by the Committee. For that reason, the Tribunal will not make a direction about the manner in which the Committee should exercise its discretion to proceed as provided for by s 424 of the LP Act.

Orders

1.The Legal Profession Complaints Committee's decision made on 16 May 2011 in relation to that part of the complaint referred to as complaints 3 and 7 of the Tribunal's reasons is set aside.
2.The Legal Profession Complaints Committee shall reconsider that part of the complaint against the practitioner referred to as complaints 3 and 7 of the Tribunal's reasons in accordance with these reasons for decision and the Legal Profession Act 2008 (WA).
3.Save as referred to in order 1, the Legal Profession Complaints Committee's decision made on 16 May 2011 is affirmed.
4.The application is otherwise dismissed.

I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT