WINZER and McCUSKER - [2011] WASAT 46

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 Respondent
LEGAL 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…

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.

Continue reading WINZER and McCUSKER

Details

AGLC: WINZER and McCUSKER [2011] WASAT 46
Case: [2011] WASAT 46
Decision Date: 23 MARCH 2011

CaseChat Overview and Summary

The case involved WINZER and McCUSKER, with the dispute centering on the dismissal of a complaint by the Legal Profession Complaints Committee. The complainant sought leave to review the Committee's decision which found the complaint unreasonable. The legal issues at the heart of the case were whether the Committee's decision should be reviewed, the capacity in which the practitioner acted, and whether the Committee's jurisdiction was properly exercised given the practitioner's role as the Parliamentary Inspector of the Corruption and Crime Commission. Additionally, the case questioned whether the complaint should be deemed contempt of Parliament, thereby barring the Committee's jurisdiction.

The court examined the nature of the complaint and the capacity in which the practitioner acted. It determined that the practitioner's role as the Parliamentary Inspector of the Corruption and Crime Commission did not automatically confer contempt of Parliament on the complaint. The court also evaluated whether the Committee's decision was flawed or questionable enough to warrant a review. It was held that the Committee's decision was not manifestly unjust or unreasonable, and therefore, did not warrant leave to review.

Consequently, the court denied the application for leave to review the Committee's decision. The court found that the Committee's jurisdiction was properly exercised, and the decision was not attended with doubt. The court emphasised that the practitioner's role did not preclude the Committee's authority to address the complaint, provided it did not involve contempt of Parliament. The court's ruling upheld the Committee's decision, confirming its correctness and appropriateness in the circumstances presented.

The final orders of the court were that the application for leave to review the Committee's decision was dismissed with costs to be paid by the applicant. This outcome reinforced the authority of the Legal Profession Complaints Committee in handling complaints against legal practitioners, provided they fall within the scope of the Committee's jurisdiction.

Orders