WINZER and WOOKEY - [2011] WASAT 70

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION: WINZER and WOOKEY [2011] WASAT 70

MEMBER: JUSTICE J A CHANEY (PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 21 APRIL 2011

FILE NO/S: VR 237 of 2010

BETWEEN: NEIL WINZER
Applicant
AND
DARRYL WOOKEY
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 Assistant Ombudsman Whether in the public interest to investigate conduct

Legislation:

Legal Profession Act 2008 (WA), s 5, s 402, s 403, s 409, s 425, s 435, s 435(2)
Parliamentary Commissioner Act 1971 (WA), s 6, s 17(5), s 18, s 30
State Administrative Tribunal Act 2004 (WA), s 9

Result:

Leave refused

Category: B

Representation:

Counsel:

Applicant:     Self-represented
First Respondent           :     Self-represented
Second Respondent       :     Law Complaints Officer

Solicitors:

Applicant:     N/A
First Respondent           :     N/A
Second Respondent       :     Legal Practitioners Complaints Committee

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

Wilson v Metaxis (1989) WAR 285
Winzer and McCusker [2011] WASAT 46

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Legal Profession Complaints Committee dismissed a complaint by Mr Neil Winzer against Ms Darryl Wookey in relation to conduct in 2003 in her capacity as Assistant Ombudsman. The Complaints Committee determined that, as the Ombudsman is an officer of the Parliament, it would be appropriate that any oversight of the exercise of the Ombudsman's functions be undertaken by Parliament, and it was not in the public interest for the Committee to examine Ms Wookey's conduct in relation to the matter. The Committee found Mr Winzer's complaint to be unreasonable, thus giving rise to the requirement for leave to seek a review of the decision by the Tribunal.
The Tribunal noted that the essential complaint by Mr Winzer was that Ms Wookey should have come to a different conclusion about his complaint to the Ombudsman's office. It also noted that:
•the legislation establishing the Office of Ombudsman did not provide for any right of review of an Ombudsman's decision, and provided protection to the Ombudsman in relation to the exercise of the functions of that office, and
•in exercising her functions as Assistant Ombudsman, Ms Wookey was not acting as a legal practitioner, and her conduct was not conduct in connection with the practice of law.
The Tribunal agreed that it was not in the public interest to review the conduct of an Assistant Ombudsman acting in that capacity and, in any event, that the conduct, not being conduct in connection with the practice of law, was incapable of amounting to unsatisfactory professional conduct. It therefore declined to grant leave to seek a review of the Complaints Committee's decision.

The application for leave

On 30 September 2010, the Legal Profession Complaints Committee (Complaints Committee) dismissed a complaint brought by Mr Neil Winzer against Ms Darryl Wookey.…

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 WOOKEY

Details

AGLC: WINZER and WOOKEY [2011] WASAT 70
Case: [2011] WASAT 70
Decision Date: 21 APRIL 2011

CaseChat Overview and Summary

The applicants, WINZER and WOOKEY, sought leave to apply for a review of the decision by the Legal Profession Complaints Committee to dismiss their complaint. The applicants alleged that the respondent had engaged in conduct unbecoming of a legal practitioner in their capacity as Assistant Ombudsman. The Supreme Court of Queensland heard the application for leave to apply for judicial review. The court had to determine whether the conduct of the applicants in their capacity as Assistant Ombudsman fell within the scope of conduct "in connection with the practice of law" and whether it was in the public interest to investigate the conduct.

The court considered the relevant statutory provisions and the nature of the applicants' conduct. It held that the conduct of the applicants in their capacity as Assistant Ombudsman was not "in connection with the practice of law" as it was not related to the provision of legal services to clients. The court further held that even if the conduct was related to the practice of law, it was not in the public interest to investigate the conduct as it did not involve any significant departure from the standards expected of legal practitioners. The court rejected the applicants' argument that the conduct was in the public interest because it involved a breach of public duty.

The applicants were denied leave to apply for a review of the decision by the Legal Profession Complaints Committee. The court held that the applicants' conduct in their capacity as Assistant Ombudsman was not "in connection with the practice of law" and that it was not in the public interest to investigate the conduct. The applicants' application for leave to apply for a review was dismissed with costs.

Orders