WINZER and ROBERTS-SMITH

[2011] WASAT 140

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   VOCATIONAL REGULATION

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION:   WINZER and ROBERTS-SMITH [2011] WASAT 140

MEMBER:   JUSTICE J A CHANEY (PRESIDENT)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   1 SEPTEMBER 2011

FILE NO/S:   VR 238 of 2010

BETWEEN:   NEIL ROBERT WINZER

Applicant

AND

LEN ROBERTS-SMITH
First Respondent

LEGAL PROFESSION COMPLAINTS COMMITTEE
Second Respondent

Catchwords:

Legal practitioners - Leave to apply for review of decision by Legal Profession Complaints Committee to dismiss complaint - Whether conduct in connection with practice of law - Conduct in capacity as Commissioner of the Corruption and Crime Commission - Whether in the public interest to investigate conduct

Legislation:

Corruption and Crime Commission Act 2003 (WA), s 9
Legal Profession Act 2008 (WA), s 402, s 425, s 435, s 435(1)(a), s 435(2)

Result:

Application for leave dismissed

Category:    B

Representation:

Counsel:

Applicant:     Self-Represented

First Respondent           :     N/A

Second Respondent       :     N/A

Solicitors:

Applicant:     N/A

First Respondent           :     State Solicitor's Office

Second Respondent       :     N/A

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

Jenkins and McCusker [2010] WASAT 100

Wilson v Metaxis (1989) WAR 285

Winzer and Wookey [2011] WASAT 70

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The Tribunal considered whether leave should be granted to Mr Neil Winzer to review the dismissal by the Legal Profession Complaints Committee of a complaint against Mr Len Roberts­Smith in his capacity as Commissioner of the Corruption and Crime Commission.  The Legal Profession Complaints Committee found Mr Winzer’s complaint alleging that Mr Roberts­Smith failed to reach or maintain a reasonable standard of competence or diligence to be unreasonable.  The finding was made on the basis that the matter had been before the Joint Standing Committee on the Corruption and Crime Commission and the Parliamentary Inspector and it would not be in the public interest for the Legal Profession Complaints Committee to further investigate the matter.

2. This approach is consistent with decisions of the Tribunal in Winzer v McCusker [2011] WASAT 46, Winzer v Wookey [2011] WASAT 70 and Jenkins v McCusker [2010] WASAT 100.

3. The Tribunal agreed that Mr Winzer’s complaint related to Mr Roberts­Smith’s conduct in his capacity as Commissioner of the Corruption and Crime Commission and that it was not, therefore, in the public interest to review that conduct.  It dismissed the application on the basis that there were no grounds for determining that the decision by the Legal Profession Complaints Committee to dismiss Mr Winzer’s complaint was wrong or attended with sufficient doubt as to justify a grant of leave.

Introduction

1. On 21 October 2009, the applicant, Mr Neil Winzer, made a complaint to the Legal Profession Complaints Committee (Complaints Committee) against a legal practitioner, Mr Len Roberts­Smith QC. The complaint related to a report by Mr Roberts-Smith issued on 21 October 2009 in his capacity as Commissioner of the Corruption and Crime Commission when he investigated or caused to be investigated complaints made by the applicant about officers of the Department of Transport. Framed in the words of s 402 of the Legal Profession Act 2008 (WA) (LP Act), Mr WInzer’s complaint alleges that Mr Roberts­Smith engaged in conduct which involved ‘a substantial and consistent failure to reach or maintain a reasonable standard of competence and diligence.’

2. Mr Winzer’s letter of complaint was accompanied by six lengthy schedules outlining aspects of his ‘public interest claim’ which relates to claims of misconduct on the behalf of Department of Transport officers ranging back to 1998.  This ‘public interest claim’ has been pursued by Mr Winzer in complaints to Parliament, the Corruption and Crime Commission, the Police, the Ombudsman, the Parliamentary Inspector of the Corruption and Crime Commissioner and the Public Sector Standards Committee. 

3. On 30 September 2010, the Complaints Committee dismissed Mr Winzer’s complaint against Mr Roberts-Smith on the basis that Mr RobertsªSmith’s conduct in carrying out his functions as Commissioner of the Corruption and Crime Commission was performance of a statutory function and not conduct that occurred in the course of legal practice.  The Complaints Committee considered that monitoring of the work of officers of the Corruption and Crime Commission is a function of the Parliamentary Inspector and the Joint Standing Committee on the Corruption and Crime Commission.  Given that Mr Winzer had already brought the matters, the subject of the 21 October 2009 complaint, to the attention of the Parliamentary Inspector and the Joint Standing Committee, the Complaints Committee considered that it was not in the public interest for it to consider that same conduct.  On that basis, the Complaints Committee found Mr Winzer’s complaint to be unreasonable.

4. Section 435 of the LP Act provides that where the Complaints Committee dismisses a complaint and finds it to be unreasonable, an application for review of that decision can only be made with leave of the Tribunal. On 11 January 2011, the Tribunal made orders that the question of leave be dealt with on the documents, and the parties were invited to file submissions on the question of leave. Mr Winzer’s submissions of 27 January 2011 included a contention that the Complaints Committee dealt with his complaint under s 425 rather than s 435 of the LP Act. That contention is correct, however, this does not dispense with the requirement for leave under s 435(2) where the Complaints Committee has found the complaint to be unreasonable. The requirement for leave under s 435(2) contemplates a finding that a complaint is unreasonable as part of a decision made under s 425 - Winzer and Wookey [2011] WASAT 70 (Wookey).

Issue for Determination

1. The question of leave pursuant to s 435(2) of the LP Act is to be determined according to the principles outlined in Wilson v Metaxis (1989) WAR 285. In that case, the full Supreme Court found that for leave to be granted:

   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 of the circumstances of the case.

2. The issue for determination in these proceedings is whether the Complaints Committee’s finding that Mr Winzer’s complaint of 14 October 2009 is unreasonable, 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 Complaints Committee’s decision wrong or attended with doubt?

1. In his s 435(1)(a) application, Mr Winzer requested that the Tribunal review the Complaints Committee’s determination on the grounds that:

   [Mr Roberts-Smith] failed to address my claim that the Police Service acted with a conflict of interest in order to protect Mr Stuart Hicks and Mr Malcolm Wauchope in relation to my broader public interest disclosure; and

   [Mr Roberts-Smith] failed to address the simple and verifiable information associated with the public interest disclosure I initiated as to the involvement of other senior officers of the Department of Transport in fraud, misappropriation, falsification of records, abuse of office and perjury.  As I began in my initial submission on 21.10.99 [sic] to the Legal Profession Complaints Committee:

   Put simply my contention in regards to L Roberts Smith QC is that, given my explicit explanations in regard to the various elements of the public interest disclosure I initiated and the documentation provided in support, the fact that the report of 14.8.08 over his signature is so grossly flawed points to his observance of an agenda that prevailed in the WA public sector prior to my appeal to the CCC.  That is, I say that I’d effectively provided the CCC with a ‘painting by numbers’ exercise and the result is so ham-fisted it clearly defines the CCC as a corrupt agency that protects select individuals who have engaged in criminal activity.

2. Mr Winzer contends that the conclusion reached by Mr Roberts­Smith in his report of 14 August 2008 addressing Mr Winzer’s ‘public interest claim’, amounts to conduct which ‘falls short of the standard of competence and diligence as a member of the public is entitled to expect.’ As noted earlier, those words are found in the LP Act in the s 402 definition of ‘unsatisfactory professional conduct.’ That section provides:

   For the purposes of this Act -

   unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

3. Mr Winzer does not contend that Mr Roberts-Smith’s conduct was other than in his capacity as Commissioner of the Corruption and Crime Commission.

4. In 2007, Mr Roberts-Smith was appointed to the position of Commissioner of the Corruption and Crime Commission under s 9 of the Corruption and Crime Commission Act2003 (WA) (CCC Act). The functions of the Commissioner of the Corruption and Crime Commission are specified in the CCC Act. Part 13 of the CCC Act further provides that the conduct of the Corruption and Crime Commissioner is subject to oversight by the Parliamentary Inspector and the Joint Standing Committee on the Corruption and Crime Commission. The issue of whether it is in the public interest for the Complaints Committee to examine the conduct of officers of the Corruption and Crime Commission in performing a statutory function was considered in Jenkins and McCusker [2010] WASAT 100. In that case the Tribunal found that ‘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.’ On that basis, leave pursuant to s 435(2) of the LP Act should be refused.

5. In his submissions to the Tribunal, Mr Roberts­Smith says that his conduct in writing the letter of 14 August 2008 to Mr Winzer was not conduct in the course of legal practice within the meaning in Pt 13 of the LP Act.  The issue of whether the performance of statutory functions that are subject to oversight by Parliament was considered in Wookey. In that case, the Tribunal found that Ms Wookey’s performance of the functions of her role as Assistant Ombudsman did not involve the practice of law. Similarly, Mr Roberts­Smith’s conduct in writing a letter to Mr Winzer on 14 August 2011 is not conduct occurring in connection with the practice of law and therefore is not capable of constituting unsatisfactory professional conduct under s 402 of the LP Act. On this basis, an allegation of unsatisfactory conduct could not be made out. Thus even if the Complaints Committee’s finding that it was not in the public interest that Mr Winzer’s complaint be investigated was wrong or attended with doubt, (which it was not) there would be no reasonable likelihood that Mr Roberts­Smith would be found guilty of unprofessional conduct and the complaint should also be dismissed on that ground.

Orders

1. The application for leave pursuant to s 435(2) of the Legal Profession Act 2008 (WA) is dismissed.

I certify that this and the preceding [14] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUSTICE J A CHANEY, PRESIDENT