WINZER and McCUSKER
[2011] WASAT 46
•23 MARCH 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: WINZER and McCUSKER [2011] WASAT 46
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 23 MARCH 2011
FILE NO/S: VR 206 of 2010
BETWEEN: NEIL WINZER
Applicant
AND
MALCOLM McCUSKER
First RespondentLEGAL PROFESSION COMPLAINTS COMMITTEE
Second Respondent
Catchwords:
Legal practitioners - Dismissal of complaint by Legal Profession Complaints Committee - Committee finding complaint unreasonable - Whether leave to review Committee's decision should be given - Practitioner acting in capacity of Parliamentary Inspector of Corruption and Crime Commission - Whether contempt of Parliament to deal with complaint - Whether Committee's decision wrong or attended with doubt
Legislation:
Legal Profession Act 2008 (WA), s 435(1), s 435(2)
Result:
Leave refused
Category: B
Representation:
Counsel:
Applicant: Self-represented
First Respondent : Self-represented
Second Respondent : N/A
Solicitors:
Applicant: Self-represented
First Respondent : Self-represented
Second Respondent : Law Complaints Officer
Case(s) referred to in decision(s):
Jenkins and McCusker [2010] WASAT 100
Wilson v Metaxis (1989) WAR 285
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Tribunal considered whether leave should be granted to the applicant, Mr Neil Wizner, to seek a review of a complaint against the respondent, Mr Malcolm McCusker QC, that the respondent had failed to reach or maintain a reasonable standard in the exercise of his duties as Parliamentary Inspector of the Corruption and Crime Commission. The Legal Profession Complaints Committee had found that complaint to be unreasonable. The finding was made on the basis that:
•Action by the Complaints Committee on the complaint would amount to a contempt of Parliament.
•The matter having been the subject of complaint to the Joint Standing Committee on the Corruption and Crime Commission, and having been dismissed by that Committee, it would not be in the public interest for the Complaints Committee to further investigate the matter.
That approach by the Complaints Committee was entirely consistent with a decision of the Tribunal reported as Jenkins and McCusker [2010] WASAT 100.
The Tribunal noted that this aspect of Mr Winzer's complaint related entirely to Mr McCusker's conduct in his capacity as Parliamentary Inspector of the Corruption and Crime Commission. It concluded there was no basis for determining that the decision by the Complaints Committee to dismiss Mr Winzer's complaint was wrong or attended with sufficient doubt to justify the grant of leave, and leave was refused.
Introduction
On 29 August 2009, the applicant, Mr Neil Winzer, made a complaint to the Legal Profession Complaints Committee (Complaints Committee) against a legal practitioner, Mr Malcolm McCusker QC. The complaint related to conduct by Mr McCusker in his capacity as the Parliamentary Inspector of the Corruption and Crime Commission (CCC). The letter of complaint contained a number of lengthy attachments. The relevance of some of those attachments to the complaint against Mr McCusker is not readily apparent, other than that they relate to the long and complex history of Mr Winzer's attempts since 1998 to have a satisfactory investigation undertaken of what he describes as his 'public interest disclosure'. The complaint made by Mr Winzer on 20 August 2009 was summarised as being that Mr McCusker 'wilfully applied the skills of the legal profession to suppress the public interest disclosure I initiated' (the initial complaint).
The Complaints Committee considered that investigation of Mr McCusker's actions in his capacity as Parliamentary Inspector would constitute a breach of parliamentary privilege, and that the initial complaint should be dismissed on that basis. Furthermore the Complaints Committee considered that it was in the public interest to dismiss the initial complaint because Mr McCusker's conduct had already been considered and ruled upon by the Joint Standing Committee (Standing Committee) of the Corruption and Crime Commission, the Parliamentary Committee responsible for the monitoring and supervision of the performance of the statutory function of the Parliamentary Commissioner, and because the practitioner's conduct did not occur in the course of legal practice. Given those conclusions, the Complaints Committee found Mr Winzer's initial complaint to be unreasonable.
By reason of s 435(2) of the Legal Profession Act2008 (WA) (LP Act), where a complaint is dismissed by the Complaints Committee, and is found to be unreasonable, an application for a review of that decision can only be made with leave of the Tribunal.
In the course of responding to the complaint about his conduct as Parliamentary Inspector, Mr McCusker provided certain information to the Complaints Committee. Mr Winzer complained to the Complaints Committee that some of that information was misleading. He therefore raised a further complaint against Mr McCusker of intentionally misleading the Complaints Committee (the second complaint). That second complaint was also dismissed by the Complaints Committee. In doing so, however, the Complaints Committee made no finding which gave rise to a requirement for leave to apply for a review by virtue of s 435(1) of the LP Act. Mr Winzer is entitled to a review of the decision to dismiss the second complaint without leave.
At the first directions hearing in relation to this matter, the Tribunal directed that the question of leave should be dealt with on the documents. These reasons deal with the question of leave to seek a review in relation to the initial complaint. The parties were given the opportunity to file and serve submissions on the question of leave. Mr Winzer lodged submissions on 22 November 2010 and 3 December 2010 together with voluminous attachments. Much of that material goes beyond the issue which arises in the context of the application for leave.
Issue for determination
In relation to questions of leave pursuant to s 435(2) of the LP Act, the Tribunal has adopted the criteria identified by the Full Supreme Court in Wilson v Metaxis (1989) WAR 285 namely that:
1.It must be shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave;
2.In addition that substantial injustice would be done by leaving the decision unreversed. What is substantial injustice must depend on all the circumstances of the case.
The basis upon which the Complaints Committee found the initial complaint against Mr McCusker to be unreasonable is explained above. The issue for determination in these proceedings is whether that conclusion is wrong, or attended with sufficient doubt as to justify a grant of leave, and if so whether substantial injustice would be done by leaving the decision unreversed.
Was the Complaint Committee's decision wrong or attended with doubt
There is no dispute that, in relation to the initial complaint, Mr McCusker was performing his duties as Parliamentary Inspector. Mr Winzer had no involvement with Mr McCusker other than in Mr McCusker's capacity as Parliamentary Inspector. The substance of Mr Winzer's initial complaint is simply that he is dissatisfied with the conclusion which Mr McCusker reached in relation to Mr Winzer's complaint to him about the conduct of the CCC.
As Mr McCusker pointed out in his submission to the Tribunal, Mr Winzer had previously made a complaint to the Standing Committee regarding Mr McCusker's conduct as Parliamentary Inspector. It is the same conduct about which he initially complained to the Complaints Committee. After a review of the files, the Standing Committee wrote to Mr Winzer on 13 May 2009 informing him of its conclusion that his complaints were unfounded and that Mr McCusker's attendance to Mr Winzer's matter was 'painstaking and thorough'.
The question of the role of the Complaints Committee in dealing with complaints about the conduct of the Parliamentary Inspection of the CCC was considered by the Tribunal in Jenkins and McCusker [2010] WASAT 100 (Jenkins and McCusker). In that case, the Tribunal considered the question of whether investigation by the Complaints Committee, and in turn the Tribunal, would constitute a breach of parliamentary privilege. At [58] - [60] of that decision, the Tribunal concluded:
58The Parliamentary Inspector is an officer of the Parliament. His role exists undoubtedly to assist the Parliament in the superintendence of the CCC. Adopting the view of the English Court of Appeal in Hamilton v Al Fayed we consider that any proceedings which seek to impeach the conclusions reached in the Parliamentary Inspector's report of 27 July 2007 ought not be ventilated because it would constitute a breach of Parliamentary privilege.
59We are mindful in reaching this conclusion that the report was not prepared at the request of the Joint Standing Committee, or for the purpose of tabling in Parliament, although a copy of the report was provided to the Joint Standing Committee. It was however, a task undertaken by an officer of Parliament in the performance of a function, on behalf of Parliament, of supervision of the CCC.
60The conclusion that investigation and action on the complaint will breach Parliamentary privilege, is not a conclusion that the Complaints Committee lacks the jurisdiction to receive the complaint and consider what action is appropriate in relation to it. Jurisdiction exists because the complaint concerns the conduct of a person who is a legal practitioner, albeit not in connection with the practice of law. However, the conclusion that investigation and action will breach Parliamentary privilege, renders it appropriate to refuse to allow the matter to be ventilated.
As in this case, the applicant in JenkinsandMcCusker had already ventilated his complaints with the Standing Committee which had found the complaints to be without foundation. As to that point, the Tribunal, in JenkinsandMcCusker, said at [61] - [63]:
61The Complaints Committee concluded that it was not in the public interest to have the Committee seek to examine the same conduct as might be considered by the Joint Standing Committee on the CCC. It did not do so on the basis that examining the conduct would breach Parliamentary privilege. In our view, the public interest in avoiding any breach of Parliamentary privilege, and thereby respecting the role, functions and powers of Parliament, leads to the conclusion that it is in the public interest to dismiss Mr Jenkins' complaints. Mr Jenkins' complaints amount to an attack on the conclusions drawn by the Parliamentary Inspector and the procedures which he undertook in preparing his report.
62Even if we are wrong as to our conclusion that the preparation and delivery of the Parliamentary Inspector's report constitutes a proceeding in Parliament for the purposes of Article 9, we nevertheless agree with the Complaints Committee's decision to dismiss the complaint on the basis that it is in the public interest to so.
63Mr Jenkins has already sought to obtain redress against Mr McCusker through the Joint Standing Committee, and by way of complaint to the Attorney General, through the Parliament. He was right to address his complaint concerning Mr McCusker's conduct to those bodies. They have been dealt with, albeit with an unacceptable outcome so far as Mr Jenkins is concerned. Consideration of those complaints made by Mr Jenkins in these proceedings will inevitably involve further enquiry into the matters that have been subject to consideration by the Police Service, the CCC and the Parliamentary Inspector. More importantly, however, as we have already concluded, Mr McCusker was not engaged in legal practice when undertaking his functions as Parliamentary Inspector. While it is true, as Mr Jenkins notes, qualifications as a lawyer are a prerequisite to appointment as Parliamentary Inspector, performance of the Parliamentary Inspector's functions is not connected to the provision of legal services to a client. The work of the Parliamentary Inspector is the performance of a statutory function. No question of duties to a client in the ordinary sense arise. The allegation of undue delay, which might be made by a client against his or her solicitor, or which involve a clear breach of duty to the client, are different in nature to allegations of delay by a statutory officer whose duties lie to the Parliament of which he is an officer. Allegations of the latter kind are matters for Parliament. Where the supervision and monitoring of the performance of a statutory function is entrusted to the Parliament, it is in the public interest that the Complaints Committee not embark upon an alternative disciplinary process.
The comments by the Tribunal in Jenkins and McCusker are directly applicable to the initial complaint by MrWinzer. The ComplaintsCommittee referred to the Tribunal's decision in Jenkins and McCusker in explaining its decision in relation to the initial complaint to MrWinzer.
There is no reason why I should depart from the views expressed by the Tribunal in Jenkins and McCusker. Given those conclusions, and the background of over a decade of multiple unsuccessful complaints by Mr Winzer to numerous bodies about the treatment of his 'public interest disclosures', the conclusion by the ComplaintsCommittee that the initial complaint against MrMcCusker was unreasonable cannot, in my view, be considered to be wrong or attended with sufficient doubt to justify a grant of leave.
Mr Winzer's submissions
In response to the brief submissions by MrMcCusker lodged with the Tribunal on 25November2010, MrWinzer provided submissions on 29 November 2010. He complained that Mr McCusker inaccurately stated that he had 'arranged for the CCC to conduct the further interview at which (Mr Winzer) was invited to give a full statement of his allegations'. Mr Winzer contended that that statement 'effectively repeated the advice by which, I say, he intended to mislead' the Complaints Committee.
That submission goes to the matters which will require consideration in relation to the second complaint, namely the complaint that Mr McCusker misled the Complaints Committee. This is a matter to be dealt with when consideration is given to that aspect of Mr Winzer's application. It has no bearing on the conclusions as to whether action on Mr Winzer's initial complaint would amount to a contempt of Parliament nor upon the conclusion expressed above that it would not be in the public interest for the Complaints Committee (and in turn the Tribunal) to reinvestigate the complaints already dealt with by the Joint Standing Committee.
Mr Winzer's submission also deals with what he refers to as 'perpetuation of the "this matter has already been addressed" argument'.
It is evident that Mr Winzer strongly believes that his original complaints have never been properly dealt with by any of the myriad of bodies to whom he has taken his complaint. The conclusion that the Complaints Committee (and the Tribunal) should not further investigate Mr Winzer's initial complaint against Mr McCusker is not based upon any assumption that the decisions reached by either Mr McCusker or the Standing Committee is necessarily correct. The basis for the conclusion expressed above is that questions of conduct of the Parliamentary Inspector, acting in that capacity, are questions for Parliament. Once Parliament has dealt with the questions, it is not open for any court or tribunal or the Complaints Committee to impune the conclusions reached by the Parliament or an officer of the Parliament such as the Parliamentary Inspector. In effect, the initial complaint by Mr Winzer against Mr McCusker is an attempt to challenge the conclusions which Mr McCusker reached. That course is simply not open in these proceedings.
Conclusion
For the above reasons, I am of the view that the decision of the Complaints Committee to dismiss the complaint of failing to reach and maintain a reasonable standard in the exercise of Mr McCusker's duties as Parliamentary Inspector because it was satisfied that it was in the public interest to do so is not wrong or attended with sufficient doubt to justify the grant of leave to seek a review of that decision. That part of the application should be dismissed, and the application should otherwise be listed for directions as to the appropriate method of disposal of the second complaint brought by Mr Winzer, namely his complaint that Mr McCusker misled the Complaints Committee.
Orders
1.The application for leave pursuant to s 435(2) of the Legal Profession Act 2008 (WA) to seek a review of the decision of the Legal Profession Complaints Committee to dismiss the applicant's complaint that the respondent failed to reach or maintain a reasonable standard in the exercise of his duties as Parliamentary Inspector is refused.
2.The application, so far as it relates to the complaint that the respondent misled the Legal Profession Complaints Committee, is adjourned for further directions at 10 am on 19 April 2011.
I certify that this and the preceding [21] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT
3