VELLA and BOWDEN - [2011] WASAT 56

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION: VELLA and BOWDEN [2011] WASAT 56

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

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 8 APRIL 2011

FILE NO/S: VR 223 of 2009

BETWEEN: JOSEPH VELLA
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
MICHAEL JOHN BOWDEN
Second Respondent

Catchwords:

Legal practitioner - Complaint by client dismissed by Legal Profession Complaints Committee - Application for review - Whether any reasonable likelihood that practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct - Allegations of failure to follow instructions - Forensic decisions by counsel - Turns on own facts

Legislation:

Legal Practice Act 2003 (WA)
Legal Profession Act 2008 (WA), s 402, s 425, s 435

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant:     Self-represented
First Respondent           :     Not Applicable
Second Respondent       :     Mr PD Quinlan

Solicitors:

Applicant:     N/A
First Respondent           :     Law Complaints Officer
Second Respondent       :     Francis Burt Chambers

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

Ali v The Queen (2005) 214 ALR 1
Browne v Dunn (1893) 6 R 67
R v McLoughlin [1985] 1 NZLR 106
Tihanyi v The Queen (1999) 21 WAR 377
Vella and Mactaggart [2011] WASAT 28
Vella v the State of Western Australia [2007] WASCA 59

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Joseph Vella sought a review of a decision by the Legal Profession Complaints Committee to dismiss a complaint concerning his former legal representative, Mr Michael Bowden. Mr Bowden had represented Mr Vella at Mr Vella's trial on a charge of wilful murder in March 2005. Mr Vella was convicted, and his appeal against conviction was dismissed. Several of the unsuccessful grounds of his appeal related to Mr Bowden's preparation for and conduct of trial.
The Complaints Committee examined each of the complaints made by Mr Vella. It found that Mr Bowden's conduct in relation to preparation for trial and conduct of trial was consistent with his instructions and based upon reasonable professional judgments. The Tribunal agreed with the Complaints Committee that there was no reasonable likelihood that Mr Bowden would be found guilty of unsatisfactory professional conduct or professional misconduct in relation to his preparation for and conduct of the trial. It reached the same conclusion in relation to complaints that Mr Bowden had given improper advice in relation to certain property matters and had refused to pay damages to Mr Vella. Accordingly, the application for review was dismissed.

The application

The applicant, Mr Joseph Vella, seeks a review pursuant to s 435 of the Legal Profession Act 2008 (WA) (LP Act) of a decision by the Legal Profession Complaints Committee (Complaints Committee) to dismiss a number of complaints by Mr Vella. The complaints were made against Mr Michael Bowden, who at the relevant time was a legal practitioner acting for Mr Vella in relation to charges of wilful murder. Mr Vella was convicted of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] WASAT 56
Decision Date: 8 APRIL 2011

CaseChat Overview and Summary

Vella and Bowden were the subjects of a legal dispute involving a client complaint against a legal practitioner. The client, who was dissatisfied with the practitioner's conduct, lodged a formal complaint with the Legal Profession Complaints Committee. The Committee reviewed the complaint and ultimately dismissed it. The practitioner then applied for a review of the Committee's decision, seeking to overturn the dismissal of the complaint. The central legal issue in the case was whether there was a reasonable likelihood that the practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct based on the client's allegations. The allegations included claims that the practitioner failed to follow the client's instructions and made forensic decisions without consultation.

The court examined the nature and substance of the client's allegations, considering whether they were serious enough to warrant a finding of unsatisfactory professional conduct or professional misconduct. The court also assessed the practitioner's explanations and justifications for their actions, particularly in relation to the forensic decisions made during the course of the legal proceedings. The court noted that the practitioner's explanations were plausible and consistent with the exercise of independent legal judgment in complex cases. Furthermore, the court found that the practitioner had acted within the bounds of reasonable professional practice, particularly in making strategic decisions in the best interests of the client. The court concluded that the allegations, while serious, did not present a reasonable likelihood of the practitioner being found guilty of unsatisfactory professional conduct or professional misconduct.

In light of the court's findings, the application for review was dismissed. The court upheld the original decision of the Legal Profession Complaints Committee, affirming that there was no reasonable likelihood that the practitioner would be found guilty of the alleged misconduct. The practitioner's conduct was deemed to be within the bounds of acceptable professional practice, and the client's complaint was dismissed. The court's decision emphasised the importance of allowing legal practitioners to exercise their independent judgment and make strategic decisions in the course of their professional duties, particularly in complex cases.

Orders