Wharff v Legal Practitioners Conduct Board & Legal Practitioners Disciplinary Tribunal
[2009] SASC 182
•29 June 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Civil)
WHARFF v LEGAL PRACTITIONERS CONDUCT BOARD & LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL
[2009] SASC 182
Judgment of The Honourable Justice Gray
29 June 2009
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PLEADINGS - GENERALLY
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE
Appeal from an order of a Master striking out statement of claim - appellant sought judicial review against the Legal Practitioners Conduct Board and the Legal Practitioners Disciplinary Tribunal in relation to decision of Board to lay a complaint against appellant on 21 June 2007 - complex proceedings leading to order of Master of Court to proceed on pleadings and for appellant to file statement of claim by 28 October 2008 - statement of claim not filed within time - leave for extension of time applied for and refused - despite refusal, statement of claim filed - statement of claim not confined to issues properly arising - multiple causes of action not previously addressed in proceedings - statement of claim struck out on 9 February 2009 - whether statement of claim correctly struck out for non-compliance with order of Court - application of Legal Practitioners Conduct Board filed seeking that matter proceed by way of affidavit - whether proceedings should progress on affidavit or pleading.
Held: appeal dismissed - order of Master striking out statement of claim correct - statement of claim filed in breach of orders of Court - statement of claim raised new causes of action beyond those the subject of initiating proceeding - matter to proceed by way of pleading - time extended for appellant to comply with order of Master and file statement of claim confined to stipulated matters by 8 July 2009 - application of Legal Practitioners Conduct Board to proceed by affidavit adjourned.
Supreme Court Civil Rules 2006 (SA) s 116 and s 199, referred to.
Hall v City of Burnside (2006) 102 SASR 298; Colmer v Alexandrina Council [2009] SASC 13, considered.
WHARFF v LEGAL PRACTITIONERS CONDUCT BOARD & LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL
[2009] SASC 182Appeal from a Master
GRAY J.
This is an appeal from an order of a Master striking out a statement of claim.
The background to these proceedings is a complaint lodged by the Legal Practitioners Conduct Board to the Legal Practitioners Disciplinary Tribunal with respect to alleged professional misconduct by Mr Wharff. The matter has a long history and Mr Wharff in other proceedings and through these proceedings has made complaint about conduct of the Board over many years. He has instituted other proceedings in this Court for judicial review of some of those other matters, but the present proceeding and the leave granted to proceed is confined to a challenge to a decision of the Board of 21 June 2007.
The within proceedings were commenced on 19 December 2007. The plaintiff, Daryl Wharff, seeks judicial review against the Legal Practitioners Conduct Board and the Legal Practitioners Disciplinary Tribunal in relation to the decision of the Board to lay a complaint against Mr Wharff on 21 June 2007. Time for the issuing of the judicial review proceedings was due to expire on 21 December 2007.
The terms of the orders sought in Mr Wharff’s application are as follows:
1. Declarations pursuant to Section 31 of the Supreme Court Act that:
1.1 The Plaintiff was entitled to be informed by the Board, prior to the Board resolving or deciding on 21 June 2007 to lay charges as to:
1.1.1 any proposal to lay such charges
1.1.2the contents of any information in the form of documents or other material which the Board had obtained relating to any proposal to lay charges
1.2 The plaintiff was entitled to make representations to the Board prior to the Board resolving or deciding on 21 June 2007 to lay charges as to:
1.2.1the contents of any information in the form of documents or other material which the Board had obtained relating to any proposal to lay charges
1.2.2 generally as to why the Board should not lay charges.
1.3 The 21 June 2007 resolution is ultra vires, invalid and/or void;
1.4 The charge alleged in the charge document dated 3 July 2007 is ultra vires, invalid and/or void;
1.5 The proceedings being Legal Practitioners Disciplinary Tribunal Action No. 4 of 2007 are ultra vires, invalid and/or void;
1.6 The Tribunal does not have jurisdiction to hear, determine and/or inquire into the charge alleged in the charge document dated 3 July 2007.
2. An injunction restraining the Board whether by its servants, agents or otherwise from taking action pursuant to or in reliance upon the 21 June 2007 resolution.
3.An injunction restraining the Legal Practitioners Disciplinary Tribunal from hearing or continuing to hear the charge laid on 3 July 2007.
4.Pursuant to Rule 199 the following orders:
4.1 An order in the nature of certiorari removing the “21 June 2007 resolution” into this Honourable Court for the purpose of it being quashed.
4.2 An order in the nature of prohibition prohibiting the Legal Practitioners Disciplinary Tribunal from hearing or continuing to hear the charge laid on 3 July 2007.
4.3 An order staying the hearing or continued hearing by the Legal Practitioners Disciplinary Tribunal of the charge laid on 3 July 2007.
At the time of the filing of the application the proceedings were supported by an affidavit sworn by Mr Wharff. An application was also made for leave to serve the proceedings. Mr Wharff sought the following interlocutory orders:
The Plaintiff applies for the following orders and direction:
1. That this Application be determined as a matter of urgency.
2.That the Court grant the Plaintiff permission to proceed with the action for judicial review.
3. That the Plaintiff be granted an exemption from the obligation to file pleadings.
…
On 21 January 2008 Judge Lunn, a Master of the Court, granted permission for Mr Wharff to proceed with the claim for judicial review.
On 6 August 2008, an affidavit of Alexandra Lesley Rathbone was filed on behalf of the Legal Practitioners Conduct Board. On 10 September 2008, Mr Wharff filed an application seeking orders that the affidavit of Ms Rathbone be struck out, that the proceedings continue on pleadings, that Mr Wharff have leave to file a statement of claim and that Mr Wharff have an extension of time to file any further affidavit material.
The application was heard by Judge Burley, another Master of this Court. Judge Burley ordered, against the opposition of the Legal Practitioners Conduct Board, that the matter proceed on pleadings and that the plaintiff file a statement of claim by 28 October 2008.
A review of the transcript indicates that it was the intent of Judge Burley that the order to proceed on pleadings was subject to the understanding that Mr Wharff would file a statement of claim that did not go outside the matters referred to in paragraphs 31 to 46 of his affidavit of 19 December 2007.
Mr Wharff did not comply with the order of Judge Burley. A statement of claim was not filed by 28 October 2008. There was no application made to Judge Burley to extend time. It appears that the order of the Master was simply ignored.
On 19 December 2008, Mr Wharff made an oral application for an extension of time to file a statement of claim. An order in those terms was refused by Judge Lunn and a further directions hearing was set for 19 January 2009. On that date, Judge Lunn ordered that Mr Wharff “file any application for leave to extend the statement of claim and any affidavit in support of extension of time by 2 February 2009.”
On 15 January 2009, the Legal Practitioners Conduct Board filed an application seeking an order that the proceedings be dismissed for non-compliance with the order of Judge Burley. Notwithstanding the non-compliance with the order of Judge Burley and the refusal of Judge Lunn to extend time for the filing of a statement of claim, Mr Wharff simply proceeded to file a statement of claim on 19 January 2009. This document raised multiple causes of action not previously addressed in the proceedings. In addition, Judge Lunn’s order of 19 December 2008 had not been complied with.
The application to dismiss the primary proceedings of the Legal Practitioners Conduct Board came on for hearing before Judge Lunn on 9 February 2009. By this time the plaintiff had issued an application seeking leave to file the statement of claim of 19 January 2009 and sought an extension of time to comply with Judge Burley’s order. At the hearing on 9 February 2009 Judge Lunn struck out the statement of claim of 19 January 2009. His Honour gave brief reasons:
The permission to serve given on 21 January 2008 was confined to the grounds set out in the affidavit file under Rule 200(3)(b). I am satisfied without hearing Mr Mancini in full in his reply that there is sufficient material in the statement of claim FDN 10 which is outside the grounds in which permission was granted to require that that statement of claim should be struck out.
Judge Lunn’s final orders were as follows:
Statement of claim, FDN 10, be struck out.
Costs of FDN 8 and 11 to be the 1st deft’s costs against the pltf.
Fit for counsel.
Liberty to either party to make any application returnable for the adjourned date.
That this matter be adjourned to Hearing on 25.02.2009 at 2:15pm.
It is from this decision that Mr Wharff has appealed.
No further application was made by Mr Wharff on or before 25 February 2009. Judge Lunn did not publish any further reasons.
Rule 116 of the Supreme Court Civil Rules 2006 (SA) addresses the powers of the Court to seek to have matters proceed in an expeditious and cost-effective manner.[1] A preliminary consideration of the Court file suggested that there was a need for an attempt to be made to progress this matter. I also drew counsel’s attention to the desirability of judges expressing tentative views to offer counsel an opportunity to address those views.
[1](1) The Court has the power to manage litigation to the extent necessary to ensure that it is conducted—
(a) fairly; and
(b) as expeditiously and economically as is consistent with the proper administration of justice.
(2)The Court may, at any time, review the progress of a case in the Court and, on a review, may—
(a)exercise its power under subrule (1) by giving directions appropriate to the circumstances of the case; and
(b)make any other order that may be appropriate in the circumstances (including orders imposing penalties for non-compliance with these rules).
As a consequence, during the hearing of the appeal I canvassed with the parties the procedural delays that were appearing to impede what should have been the expeditious and efficient disposal of Mr Wharff’s application for judicial review. It is to be recalled that Mr Wharff initially sought an urgent hearing of his application for judicial review on the affidavits. More than 18 months has passed since the issue of those proceedings and rather than the application for review being progressed, the attempt to proceed by way of pleadings appears to be broadening and delaying the dispute. In these circumstances I raised with the parties the prospect of reverting to the matter proceeding on affidavit and to the fixing of an expedited hearing date to bring matters to a conclusion. These suggestions were embraced by the Legal Practitioners Conduct Board but firmly and vigorously resisted by Mr Wharff. Counsel for Mr Wharff stressed the lengthy history of the factual enquiry to be undertaken and the complexity of the issues to be determined. He indicated that it was highly improbable the matter could proceed in the calendar year 2009. My suggestion that the matter might be heard earlier was met with a response that a fair trial could not take place at such a time.
As explained to Mr Wharff’s counsel, I was concerned about the extensive delays that were occurring and further concerned about the attempts to substantially broaden the proceedings through the statement of claim without leave. I noted that Mr Wharff was seeking to review many earlier decisions well out of time.
I also expressed my concern to counsel for Mr Wharff about the interlocutory processes that had taken place before Judges Burley and Lunn. I pointed out that the statement of claim as filed added many new claims for judicial relief. On my review of the statement of claim it appeared that 14 earlier decisions of the Legal Practitioners Conduct Board, extending over a four-year period, were sought to be reviewed. Judge Burley’s order had not been complied with. Judge Lunn had refused to extend time. The statement of claim of 19 January 2009 had been filed without the leave of the Court. I raised the concern that the filing of the statement of claim in these circumstances could be described as mischievous.
Following the making of submissions on the appeal I adjourned the matter for several days so that both counsel could take instructions with respect to my suggestion that it might be preferable for the matter to proceed on affidavit with the view to having the trial date set later in the year.
The Legal Practitioners Conduct Board filed an application seeking an order that the matter proceed on affidavit. Mr Wharff filed an application seeking, inter alia, that I disqualify myself on the grounds of an appearance of bias, however, this application was later abandoned.
The statement of claim filed on 19 January 2009 and struck out by Judge Lunn on 9 February 2009, included pleas well beyond the matters raised in the initiating process or for that matter the supporting affidavit. Initially, Mr Wharff sought to review only the one decision - the decision of the Legal Practitioners Conduct Board of 21 June 2007. As earlier noted, the statement of claim sought to review 14 other decisions made between 2003 and 2006. Any attempt to pursue such applications would require an extension of time and the obtaining of leave to proceed. These procedural requirements have thus far been overlooked, not addressed, or ignored. The most perfunctory review of the statement of claim confirms that the reasons for striking out the document of Judge Lunn were correct. The statement of claim contains sufficient material,[2] which is outside the grounds in which permission was granted to serve the proceedings, to warrant the order made.
[2] FDN 10
Rule 199 of the Supreme Court Rules provides:
The Court may make an order for judicial review.
[Subrules 199(2)(a) and 199(2)(d) amended by Supreme Court Civil Rules 2006 (Amendment No. 2)]
(2) An order for judicial review is an order of one of the following kinds—
(a) an order preventing another court or a tribunal that has a duty to act judicially from acting beyond its jurisdiction or in contravention of the requirements of natural justice (prohibition);
(b) an order setting aside the decision of another court or a tribunal that has a duty to act judicially because of error, absence of jurisdiction, failure to observe the requirements of natural justice or fraud (certioriari);
(c) an order to compel the performance of a duty of a public nature that cannot be enforced by some other adequate legal remedy (mandamus);
(d) an order to prevent a person from wrongfully exercising, or purporting to exercise, functions of a public character (quo warranto).
In Hall v City of Burnside,[3] Doyle CJ addressed the question of the six-month time limit for the bringing of judicial review proceedings:
As McHugh J said in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553, the six month limitation period is “the general rule”. It is not “an arbitrary cut off point”. The six month limit represents a judgment as to an appropriate time limit having regard to the public interest and having regard to the interest of individuals who have an interest in the particular case that arises. A limitation period is imposed, and the length of the period is determined, recognising that the limitation period may result in a cause of action being defeated.
A six month time limit for proceedings by way of judicial review is common in Australia, and in some jurisdictions the time limit is even shorter: see Aronson, Dyer, Groves, Judicial Review of Administration Action (3rd ed, Lawbook Co, 2004), pp 718-719.
The relatively short limitation period reflects the fact that judicial review is concerned with the validity of decision making by individuals and bodies exercising statutory and other powers that must be exercised in the public interest. Such decisions often have direct and consequential effects on persons other than those immediately affected. In a range of circumstances it will often be a matter of significance for other persons and authorities to know whether or not such a decision is valid or has been subject to a legal challenge. There is a substantial public interest in being able to say, after a specified time, that such a decision can be treated as beyond attack. The very fact that the standing rules permit challenges to validity to be made by persons other than those directly involved in the decision making process is a reason why there should be a relatively short period within which any such attack should be mounted.
The fact that r 98.06 requires that quite apart from the six month time limit, proceedings should be brought “as promptly as possible” emphasises the significance of the time limit.
This decision addressed the judicial review process under the former Rules of the Court. There has been no substantive change in the Rules and the observations of Doyle CJ have direct application to the present Rule.[4]
[3] Hall v City of Burnside (2006) 102 SASR 298 at [47]-[50].
[4] The remarks of Doyle CJ have been accepted by the Court since the 2006 Rules came into operation; See Colmer v Alexandrina Council [2009] SASC 13 at [71] (Bleby J).
During the course of submissions, counsel for Mr Wharff conceded that the statement of claim struck out by Judge Lunn raised many new and unauthorised causes of action. He accepted that the document sought judicial review of many earlier decisions not the subject of the initiating application. It was counsel’s submission that the document could be amended and leave to proceed permitted in regard to those portions of the document that were in compliance with Judge Burley’s order. I consider that the document as filed would involve considerable amendment. It is an unwieldy, complex document that does not lend itself to the process suggested by counsel. The order that I propose to make would allow Mr Wharff a further opportunity to comply with the order of Judge Burley.
The order made by Judge Lunn striking out the statement of claim was within his discretion. I add further, that in my view it was an appropriate order. Not only was the statement of claim filed in breach of orders of the Court, but the document raised entirely new causes of action well beyond those the subject of the initiating proceeding and the leave to serve and proceed. The appeal should be dismissed for these reasons.
As earlier observed, I raised with counsel for Mr Wharff the suggestion that the filing of the statement of claim could be considered to be mischievous. Was it a deliberate attempt to advance causes of action without compliance with Orders of the Court and the Rules of Court? I have carefully reviewed counsel’s submissions and the affidavits of Mr Wharff. I have reached the conclusion that it would be wrong to make a finding that there was mischief involved. However, it may be that Mr Wharff was misguided in his attempt to introduce unauthorised and new matters into his statement of claim well beyond the legitimate scope of that document. It may also be that Mr Wharff lost sight of the issues to be properly addressed in his statement of claim. His affidavit makes reference to his desire to bring all matters and all causes of action before the Court. However, to do so without compliance with all relevant legal requirements may cause substantial prejudice to another party. It is important that there be compliance with the relevant Rules.
Having regard to the history of the matter, I have decided that it is presently inappropriate to proceed on affidavits. I consider the better course is to continue by way of pleadings. I consider it is appropriate that Mr Wharff have one final opportunity to file a statement of claim that complies with the order of Judge Burley. To that end I propose extending time for Mr Wharff to comply with the order of Judge Burley until 4.00pm 8 July 2009.
Although I have reached the view that the matter should presently proceed by way of pleadings, it is possible that later events may cause a different view to how the matter should progress and to that end, I propose adjourning the application of the Legal Practitioners Conduct Board that the matter proceed by affidavit.
In conclusion I make the following orders: – the plaintiff’s appeal is dismissed – the time to file a statement of claim complying with the order of Judge Burley of 18 October 2008 is extended until 4.00pm on 8 July 2009. The statement of claim is to be limited to the plaintiff’s complaints with respect to the decision of the Legal Practitioners Conduct Board of 21 June 2007 and is not to go beyond the matters raised in paragraphs 31 to 46 of Mr Wharff’s affidavit of 19 December 2007 – the proceedings are referred to Judge Lunn for further directions – the plaintiff is to pay the costs of and incidental to the appeal of the Legal Practitioners Conduct Board to be taxed.
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