| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : WINZER and RAITHEL [2011] WASAT 133 MEMBER : JUSTICE J A CHANEY (PRESIDENT) MR C RAYMOND (SENIOR MEMBER)
MS R MOORE (MEMBER)
HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 26 AUGUST 2011 FILE NO/S : VR 240 of 2010 BETWEEN : NEIL ROBERT WINZER Applicant
AND
GEORG RAITHEL
First Respondent
TIMOTHY SHARP
Second Respondent
Catchwords: Legal Practitioners - Disciplinary complaint - Complaint dismissed and found to be unreasonable - Leave to seek review required - Whether decision to dismiss wrong or attended with doubt Legislation: Legal Profession Act 2008 (WA), s 425, s 425(a), s 435, s 435(1), s 435(2)
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Result: Leave to apply for review refused Category: B
Representation: Counsel:
Applicant : N/A
First Respondent : N/A
Second Respondent : N/A
Solicitors:
Applicant : Self-represented
First Respondent : State Solicitor's Office
Second Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Neil and Legal Profession Complaints Committee [2011] WASAT 25
Wilson v Metaxas [1989] WAR 285
Winzer and McCusker [2011] WASAT 46
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 The applicant sought leave to apply for a review of a decision of the Legal Profession Complaints Committee dismissing complaints he made against two legal practitioners, Mr George Raithel and Mr Timothy Sharp. Leave was required because the Complaints Committee had found the allegations against each practitioner to be unreasonable. 2 The Tribunal reviewed the complaint and determined that it could not be said that the Complaints Committee's decision was wrong or attended with sufficient doubt to justify the grant of leave, and leave was refused.
The application 3 On 30 September 2010, the Legal Profession Complaints Committee (Complaints Committee) dismissed complaints against a legal practitioner, Mr George Raithel, a solicitor employed by the Office of the State Solicitor of Western Australia, and against Mr Timothy Sharp, then the State Solicitor for Western Australia. The Complaints Committee found that there was no reasonable likelihood that the practitioners would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct. In reaching that conclusion, the Complaints Committee also found that the complaint against each practitioner was unreasonable. The effect of that latter finding is that, pursuant to s 435(2) of the Legal Profession Act 2008 (WA) (LP Act), the applicant was not entitled to apply to the Tribunal for a review of the decision without leave of the Tribunal. 4 The test for the grant of leave for the purposes of s 435(2) of the LP Act is whether the decision in respect of which leave is sought was wrong, or at least attended to with sufficient doubt to justify the grant of leave and, in addition, whether substantial injustice would be done by leaving the decision unreversed -Wilson v Metaxas [1989] WAR 285; Winzer and McCusker [2011] WASAT 46.
Mr Winzer's complaint against Mr Raithel 5 Mr Winzer's complaint is contained in a letter dated 2 December 2009. In that letter, Mr Winzer said in relation to Mr Raithel: My complaint against Mr George Raithel under the Legal Profession Act 2008 is of professional misconduct in that, for the State Solicitor's (Page 4)
Office, he proposed on 26.10.04 that I 'discontinue any and all actions against the [Department of Transport] in respect any matter arising in the course of [my] employment' or be pursued for costs that had been awarded against me as far back as 2001. The key to my complaint against Mr Raithel is that he would have or should have known from the files of the State Solicitor's Office that a public interest claim involving fraud, misappropriation, abuse of office, falsification of records and perjury was central to the matters 'arising in the course of [my] employment. 6 The letter then proceeded to recount at some length the history of what Mr Winzer refers to as his 'public interest claim'. Mr Winzer has, as his letter of complaint reveals, pursued his public interest claim, and his concerns about the way various people or authorities have dealt with that claim, through Parliament, the Corruption and Crime Commission, the Police, the State Ombudsman, the Parliamentary Inspector of the Corruption and Crime Commission, the Public Sector Standards Commissioner and a number of members of Parliament. 7 Mr Winzer explained in his letter of complaint that his contention was that documentation showing a close involvement of the State Solicitor's Office in the public interest claim also shows that Mr Raithel would or should have known that, in seeking to resolve 'any matter arising in the course of employment', Mr Raithel was including his claims of fraud, misappropriation, abuse of office, falsification of records and perjury. Mr Winzer contended that Mr Raithel's proposal could not be discounted as purely representing Mr Raithel's legitimate right to attempt to negotiate an appropriate position for the Department of Transport, for whom he was acting when he wrote the letter proposing settlement. 8 It should be noted that Mr Raithel's involvement as solicitor was in the context of proceedings brought by Mr Winzer for damages at common law arising out of the subject matter of a workers' compensation claim which had been dismissed by the Conciliation and Review Directorate and, on appeal, by the Compensation Magistrates Court.
The Complaints Committee's decision in relation to Mr Raithel 9 The Complaints Committee set out its decision for dismissing Mr Winzer's complaint against Mr Raithel in a letter dated 30 September 2010. After reciting the background to the matter, the Complaints Committee said: The Committee noted that the complainant considered that Mr Raithel had been involved in the wider issue of his public interest disclosure as he (Page 5)
believed that the State Solicitors Office had been involved in providing advice on that matter. However, even if that was the case, it appeared that Mr Raithel was not involved in the provision of such advice and his involvement was limited to dealing with the proposed action for damages against the Minister and the applications for leave to bring that action. Accordingly, Mr Raithel's role was to examine and deal with the legal issues arising solely in respect of that proposed action and the leave applications. It was apparent that Mr Raithel reached the view that there were substantial legal grounds for disputing the complainant's entitlement to bring an action for damages arising out of the subject matter of his workers compensation claim. Mr Raithel acted on his client's instructions to seek to settle all outstanding issues between his client and the complainant. It was part of his professional duties to seek to reach a solution by settlement out of court rather than by continuing to defend the complainant's legal proceedings. In doing so, Mr Raithel was dealing only with the legal issues arising in that case and was not involved with the wider issue of the complainant's public interest disclosure. Mr Raithel fulfilled his professional obligations by seeking such a settlement. It was open to the complainant to obtain legal advice on the offer and to reject it or to seek to exclude the public interest disclosure from the settlement. Such legal advice was readily available given that Mr Raithel's letter was directed to the complainant's solicitors. Orders for costs against the complainant had been made by the Compensation Magistrate's Court and the District Court. There is no evidence that those orders were irregularly made and Mr Raithel was entitled to deal with the enforcement of those orders in seeking to resolve all outstanding issues between his client andthe complainant. Indeed, it was appropriate that he did so in that context. There is no evidence to suggest that the letter was seeking to deal with a costs order which the complainant says was made against him in the Joondalup Magistrate's Court, which Mr Raithel says he was unaware of at that time. For the above reasons, the Committee finds that the complaint to the Committee is unreasonable.
Mr Winzer's submissions 10 Pursuant to a direction of the Tribunal, Mr Winzer provided submissions to the Tribunal on the question of leave. Those submissions did not address the merits of his complaint against Mr Raithel. Rather they focused upon complaints about his treatment by the Tribunal, queried whether leave was required, and various other matters which do not bear on the merits of the claim against Mr Raithel. 11 The only issue relevant to the question of leave is Mr Winzer's submission that the Complaints Committee dealt with the matter under (Page 6)
s 425 of the LP Act, and therefore s 435 (which imposes the requirement of leave) is not applicable. That submission is misconceived. Section 435 provides: (1) Subject to subsection (2), a person aggrieved by - (a) a decision of the Complaints Committee to dismiss a complaint; or (b) a decision made by the Complaints Committee under section 426, may apply to the State Administrative Tribunal for a review of the decision. (2) If the Complaints Committee, in its reasons for its decision, specifically finds the complaint - (a) to be trivial, unreasonable, vexatious or frivolous; or (b) in the case of a complaint purporting to be made under section 410(1)(e), to be a matter in which the complainant does not have, or did not have, a direct personal interest, the person aggrieved cannot apply to the State Administrative Tribunal for a review of the decision without the leave of the Tribunal. 12 Section 435(2) clearly contemplates the Complaints Committee finding a complaint to be trivial, unreasonable, vexatious or frivolous, in the context of making a decision to dismiss a complaint. It is true, as Mr Winzer observes, that the Complaints Committee dismissed his complaint pursuant to s 425(a) on the basis that there is no reasonable likelihood that the practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct. Mr Winzer's right to seek review of that decision can only arise under s 435. If s 435 did not exist, Mr Winzer would have not entitlement to apply for a review of the decision made pursuant to s 425. The Complaints Committee having, in reaching its decision to dismiss the complaint pursuant to s 425, made a finding that the complaint is unreasonable, s 435(2) conditions the right otherwise conferred by s 435(1). 13 The requirement for leave is present in this case. (Page 7)
Likelihood of Mr Raithel being found guilty of unsatisfactory professional conduct 14 Mr Winzer does not expressly state why, even if Mr Raithel knew of the existence of his public interest claims, the making of an offer to settle on the terms suggested amounts to unsatisfactory professional conduct or professional misconduct. It is assumed that Mr Winzer's concern is that the offer was designed to prevent information concerning possible criminal conduct from being properly investigated. 15 Mr Winzer's contention assumes that Mr Raithel knew of the nature and extent of Mr Winzer's public interest claim. Whether that is so is not clear on the documents before me, but for the purposes of considering the question of leave, it is appropriate that we proceed on the assumption that Mr Winzer's claim as to Mr Raithel's knowledge can be made out. 16 Even assuming that knowledge, we are of the view that there is no reasonable prospect that it would be found that the making of the offer by Mr Raithel amounted to unsatisfactory professional conduct or professional conduct. 17 Mr Winzer has raised nothing which undermines the reasons expressed by the Complaints Committee which are set out above and which led to it dismissing Mr Winzer's claim. We adopt those reasons. Mr Raithel, in acting for the Minister in relation to the damages claim, owed a duty to the Minister to act in the Minister's best interest in defending the proceedings. Even if it is assumed that the reference to 'all actions against the Department of Transport in respect of any matter arising in the course of [Mr Winzer's] employment' might be read as including Mr Winzer's complaints against various officers within the Department of Transport (which is at least doubtful), Mr Raithel's acting in accordance with his instructions to try to resolve all matters was consistent with his duty to his client. The letter containing the offer was directed to Mr Winzer's solicitors. There can be no sensible suggestion that the letter was intended to somehow deceive Mr Winzer as to the effect on him of settlement, given that he had the opportunity to take legal advice as to the consequences of the proposed resolution. It was open to Mr Winzer to have his solicitors counter-offer any proposal which clarified the preservation of Mr Winzer's rights to pursue other matters outside his worker's compensation and damages claims. 18 In our view, Mr Winzer has not established that the decision of the Complaints Committee that his complaint against Mr Raithel was unlikely to result in a finding of unsatisfactory or unprofessional conduct or (Page 8)
professional misconduct was wrong, or attended with sufficient doubt to grant leave. 19 It follows that leave to seek a review of the Complaints Committee's decision so far as it relates to Mr Raithel is refused.
Mr Winzer's complaint against Mr Sharp 20 Mr Winzer's complaint in relation to Mr Sharp is contained in a letter to the Complaints Committee dated 7 April 2010. According to Mr Winzer, Mr Sharp was appointed as State Solicitor for Western Australia in October 2003. Mr Winzer contends that, in that capacity, Mr Sharp would have known that Mr Raithel's proposal of 26 October 2004 in relation to settlement 'was meant to include Mr Winzer's efforts to achieve a resolution in regard to his public interest claim'. 21 That complaint against Mr Sharp obviously falls away given that the conclusion we have reached as to the complaint concerning Mr Raithel. If Mr Raithel's conduct is unlikely to be found to be unsatisfactory professional conduct or professional misconduct, then even if Mr Sharp knew of the sending of the letter, his conduct could not be found to be unsatisfactory professional conduct or professional misconduct. 22 In any event, there is no basis, on the materials supplied to the Complaints Committee, and in turn to the Tribunal, for concluding that Mr Sharp had any knowledge of the conduct by Mr Raithel of the matter concerning Mr Winzer's claim for damages. It is submitted by the respondents, and we accept, that there is no duty requiring the State Solicitor for Western Australia to supervise the day to day work of a senior practitioner within the State Solicitor's Office. In Neil and Legal Profession Complaints Committee [2011] WASAT 25 (Neil), (at [63]), the Tribunal observed that the mere fact that a person is a partner in a law firm is not sufficient to fix liability on him or her in respect to the conduct of an employed solicitor where the partner had no personal knowledge or supervisory responsibility in relation to the work the subject of complaint. The responsibilities of the State Solicitor of Western Australia in relation to work done by other legal practitioners within that office is analogous to the position of a managing partner of a law firm. The position in this case is no different to the situation considered in Neil. The complaint concerning Mr Sharp is misconceived, and was correctly found by the Complaints Committee to be unreasonable. (Page 9)
23 Mr Winzer's letter of complaint concluded with a contention that Mr Sharp had 'a large degree of responsibility' for 'the fact that an objective and thorough investigation of the public interest claim has never been achieved'. No basis for that contention is disclosed in the letter of complaint. Mr Winzer's letter does recount the history of Mr Winzer's attempts to have his public interest claim pursued by various persons or organisations, and suggests that the Office of the State Solicitor may have been involved in receiving certain correspondence, and providing advice to politicians or others. There is nothing, however, which suggests that Mr Sharp, in his capacity as State Solicitor for Western Australia, was personally charged with investigating Mr Winzer's claim or even that anyone within the State Solicitor's Office was required to perform that task. There is no general duty on the State Solicitor for Western Australia to carry out investigations of public interest disclosures. 24 There is no basis to conclude that that aspect of Mr Winzer's complaint was capable of leading to a conclusion that Mr Sharp might be found guilty of unsatisfactory professional conduct or professional misconduct. 25 Accordingly, the application for leave to seek a review of the Complaints Committee's decision in relation to Mr Sharp should also be refused.
Orders 1. Mr Winzer's application for leave to seek a review of the decision of the Legal Profession ComplaintsCommittee dated 30 September 2010 concerning MrRaithel and MrSharp is dismissed. |