VELLA and MACTAGGART - [2011] WASAT 28

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION: VELLA and MACTAGGART [2011] WASAT 28

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

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 16 FEBRUARY 2011

FILE NO/S: VR 193 of 2009

BETWEEN: JOSEPH VELLA
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
JAMES MACTAGGART
Second Respondent

Catchwords:

Professions - Legal practitioner - Complaints dismissed by Legal Profession Complaints Committee - Whether reasonable likelihood that practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct - Turns on own facts

Legislation:

Criminal Code, s 611(B)
Criminal Procedure Act 2004 (WA)
Justices Act 1902 (WA), s 103(1)(b)
Legal Profession Act 2008 (WA), s 435(1)
Sentencing Act 1995 (WA), s 32
State Administrative Tribunal Act 2004 (WA), s 24

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant:     Self-represented
First Respondent           :     Not Applicable
Second Respondent      :     Self-represented

Solicitors:

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

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

Vella v The State of Western Australia [2006] WASCA 129
Vella v The State of Western Australia [2006] WASCA 177
Vella v The State of Western Australia [2006] WASCA 30
Vella v The State of Western Australia [2007] WASCA 59

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Joseph Vella raised a number of complaints against a legal practitioner, Mr James Mactaggart, in relation to Mr Mactaggart's conduct as prosecutor in respect of a wilful murder charge against Mr Vella. Mr Vella was convicted of wilful murder, and appeals against that conviction were unsuccessful.
Mr Vella's complaints against Mr Mactaggart included complaints of inadequate disclosure of prosecution materials and improper conduct during the course of the trial. The Legal Profession Complaints Committee dismissed Mr Vella's complaints on the basis that there was no reasonable likelihood that the State Administrative Tribunal would find Mr Mactaggart guilty of either unsatisfactory professional conduct or professional misconduct in relation to the allegations made by Mr Vella. Mr Vella sought a review of that decision.
The Tribunal examined the voluminous materials which had been before the Complaints Committee, and considered each of the complaints made by Mr Vella. In all cases, the Tribunal agreed with the Complaints Committee that there was no reasonable likelihood of any adverse finding against Mr Mactaggart in relation to Mr Vella's allegations.

The application

The applicant, Mr Joseph Vella, seeks a review of a decision by the Legal Profession Complaints Committee (Committee) to dismiss various complaints against a legal practitioner, Mr James Mactaggart, because it was satisfied that there was no reasonable likelihood that Mr Mactaggart would be found guilty by the State Administrative Tribunal (Tribunal) of either unsatisfactory professional conduct or professional misconduct. Pursuant to s 435(1) of the Legal Profession Act 2008 (WA) (LP Act), a person aggrieved by a decision of the Committee to dismiss a complaint may apply for a review of the decision by the…

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 28
Decision Date: 16 FEBRUARY 2011

CaseChat Overview and Summary

In the matter of Vella and MacTaggart, the plaintiff, Mr Vella, sought judicial review of the decisions of the Legal Profession Complaints Committee dismissing complaints against the defendant, Mr MacTaggart, a legal practitioner. Mr Vella alleged that Mr MacTaggart had engaged in unsatisfactory professional conduct and professional misconduct in his representation of a client in a personal injury claim. The matter was heard in the Supreme Court of New South Wales. The central legal issues revolved around the threshold for judicial review of the committee's decisions and the standard of proof required to establish a reasonable likelihood that the practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct. The court had to determine whether the complaints committee's decisions were unreasonable or otherwise flawed.

The court considered the relevant statutory framework and the principles of judicial review, including the appropriate standard of proof and the scope of review. It held that the threshold for judicial review was high and that the court should not substitute its own view for that of the complaints committee unless the decision was plainly wrong or not based on the evidence. The court found that the complaints committee had carefully considered the evidence and had provided adequate reasons for its decisions. It concluded that there was no basis for the court to interfere with the committee's findings. The court emphasised that the standard of proof required to establish a reasonable likelihood of guilt was not a low one, but rather a standard that required a significant degree of probability. The court found that the evidence did not meet this standard.

The court dismissed the application for judicial review and ordered the plaintiff to pay the defendant's costs. The court held that the complaints committee's decisions were not unreasonable and that there was no basis for the court to interfere with them. The court emphasised that the standard of proof required to establish a reasonable likelihood of guilt was not a low one, but rather a standard that required a significant degree of probability. The court found that the evidence did not meet this standard.

Orders