WINZER and WOOKEY
[2011] WASAT 70
•21 APRIL 2011
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 RespondentLEGAL 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. In doing so, it found Mr Winzer's complaint to be unreasonable. By reason of that finding, leave is required pursuant to s 435(2) of the Legal Profession Act 2008 (WA) (LP Act) to bring an application for review of the Complaints Committee's decision.
By a direction made on 11 January 2011, the Tribunal determined that the question of leave should be dealt with on the documents, and the parties were directed to file submissions on that question.
Background to the complaint
Mr Winzer has been engaged since approximately 1998 in the pursuit of what he describes as his 'public interest disclosure'. The disclosure relates to what he alleges was 'the involvement of senior officers of the Department of Transport in fraud, misappropriation, falsification of records, abuse of office and perjury'. Mr Winzer's attempts to pursue those matters have seen him refer his complaints to a wide range of politicians and investigative authorities including the Western Australia Police, the Crime and Corruption Commission and the Parliamentary Commissioner for Administrative Investigations (known as the Ombudsman).
The outcomes of those referrals have resulted in various complaints by Mr Winzer to various officials and bodies about the conduct of investigations. This matter concerns one of those complaints. It is one of six complaints which were dealt with by the Complaints Committee, all of which were dismissed by the Complaints Committee, and all of which resulted in applications to the Tribunal for leave to review the Complaints Committee's decision.
In March 2001, Ms Wookey was appointed to the position of Assistant Ombudsman under s 9 of the Parliamentary Commissioner Act 1971 (WA) (PC Act). In that capacity, certain powers of the Ombudsman were delegated to her. It was in the exercise of those delegated powers that she received and dealt with Mr Winzer's complaints to the Ombudsman about the conduct of officers of the Department of Transport, or as it was subsequently known, the Department of Planning and Infrastructure. In his complaint to the Complaints Committee, Mr Winzer alleged that Ms Wookey's conduct involved 'a substantial [and] consistent failure to reach or maintain a reasonable standard of competence and diligence', thereby adopting the words of the definition of 'unsatisfactory professional conduct' found in s 402 of the LP Act.
Mr Winzer's complaint
The complaint made by Ms Wookey to the Complaints Committee was expressed as follows:
…
1My letter of 11.9.03 to the Ombudsman began with a subject heading that is indicative of my requests:
A ONE PAGE LETTER FROM YOU TO PLANNING AND INFRASTRUCTURE CAN BRING THIS MATTER TO AN END
In regard to my discussion with Ms Wookey by phone 8.9.03 I wish to 'point-up' my particular request of you to simply oblige Planning and Infrastructure to prove their claims as to the existence of certain records. I suggest this would require only a one-page letter and thus the consumption of minimal resources on your part.
Given Ms Wookey has not yet been able to consider my last correspondence 26.8.03, the fact that this matter has now been in the public domain for over three years as indicated by Hansard and the substantial daily deterioration of my personal circumstances, I am most eager to identify a quick and easy way to an end.
And:
Mr Saunders knew there was evidence to support my claim. For example the PSSC transcript of our one and only meeting 18.4.00 includes the following:
…as I mentioned to you over the phone the other day, a thorough investigation of all these machinations and what have you, would at least require the reading of the transcripts which are now with the Conciliation and Review Commission [WorkCover], including statements made from the various past Directors General of Transport, certainly Stuart Hicks, Chris Whitaker.
The appeal for others, if these records exist of course, should be in the potential for my claim to be dissipated.
Again I emphasise that had these events occurred, given the significance of the subject matter, a record would have been made.
•The first category of records involves my claim as to the process observed by senior officers of Transport, now Planning and Infrastructure, in abandoning an agreement formally endorsed and approved by the Public Sector Commissioner, Department of Finance, Cabinet, the Australian Industrial Relations Commission and the WA Industrial Relations Commission in order for them to implement a policy for privatisation and contractingout.
My contention is that Transport's staff were never advised of the switch and a fraudulent report was provided to Cabinet.
And:
•The second category of records involves my claim that no officer at anytime addressed my public interest claim or the evidence I offered in support. Moreover, my claim is that the documents I've made available show clearly a persistency and consistency in my arguments for Transport to address the evidence I presented on my initiative. That is, no Transport officer ever asked or directed me to put my claim with supporting evidence and I have never withdrawn my claim.
And:
To conclude my argument, I say that I've already made available the necessary evidence and that evidence is patently clear. However, the claims [only] of Hicks, Whitaker, Harris and others as to significant events having taken place and the existence of critical documents are apparently preferred.
I hereby request you to send the letter and bring to and [sic] end the five years involving the consumption of an enormous amount of public resources through 10 agencies and parliamentary committees.
A single page letter from you to Planning and Infrastructure is all it should take. Indeed, it could be as brief as "with reference to Mr Winzer's letter 11.9.93 attached, provide any records that prove he is wrong."
Please don't insult me with a regurgitation of your 25.7.03 arguments about the Department having a different name and a possibility that the documents exist but can't be found.
2By way of her letter of 13.10.03 to me Ms Wookey acknowledged my letter of 11.9.03. Please keep in mind the fact that Ms Wookey was very much aware that my public interest claim was about fraud, misappropriation, abuse of office, falsification of records and perjury. Ms Wookey's letter of 13.10.03 included:
With respect there is clearly no inference to be drawn from my letter. I have not anywhere suggested that, prior to the introduction on [sic] the State Records Act 2000, there was no requirement for agencies to keep proper records. My reference to the State Records Act 2000 was made in the context of my consideration of whether any practical outcome could be achieved from now investigating whether or not any action taken by the Department at the time was documented. It was in the context of my considering whether, even if an investigation were to lead to a finding that there had been past deficiencies in record keeping, there would be any point in criticising those practices and making recommendations in respect of them now. My reason for forming the view that there was no likelihood an [sic] any improvement in public administration to be achieved by conducting an investigation into that matter are set out in detail on pages 6 and 7 of my letter and I reject your assertion that an inference of the kind you have suggested could be drawn from those reasons.
3The Corruption and Crime Commission's determination of 14.8.08 as to my requests from 2000 for my Department to be obliged to table records to substantiate their position:
As part of it (sic) enquiries into this matter, the Commission examined the files held by the DPI in relation to Mr Winzer's public interest claim but was unable to locate any detailed responses to his claim.
…
In essence, it appears that Mr Winzer's complaint is as to Ms Wookey's decision that no point would be served by investigating and making recommendations about past deficiencies in record keeping by the Department of Transport.
Complaints Committee's decision
The Complaints Committee gave short reasons for its decision in its letter of 30 September 2010. Its stated reasons were as follows:
The complaint concerns the exercise by the practitioner of delegated powers from the Parliamentary Commissioner for Administrative Investigations, known as the Ombudsman. The exercise of those powers is not conduct in connection with the practice of law; rather it is the performance of a statutory function which is not connection with the provision of legal services to a client. As the Ombudsman is an officer of the Parliament it would appear appropriate that any oversight of the exercise of the Ombudsman's function is undertaken by Parliament. Accordingly, the Committee is of the view that it is not in the public interest of the Committee to seek to examine the practitioner's conduct in this matter.
The test for the grant of leave
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 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 Metaxis (1989) WAR 285; Winzer and McCusker [2011] WASAT 46.
Should leave be granted?
In substance, Mr Winzer's complaint amounts to an attempt to obtain a review of Ms Wookey's decision not to make recommendations in relation to the matters about which Mr Winzer complained. Neither the Complaints Committee, nor this Tribunal, have jurisdiction to review a decision under s 17(5) or s 18 of the PC Act, each of which empowers the Ombudsman to decline to entertain a complaint.
Not only is there no right of review conferred, but s 30 of the PC Act extends protection to the Ombudsman and his staff from liability or proceedings arising from any act purporting to be done under the PC Act, unless done in bad faith. It is clear, therefore, that the Parliament intended decisions of the Ombudsman to be final.
It is also clear that responsibility for any discipline of the Ombudsman in respect to misconduct in office is reserved to the Governor s 6 of the PC Act.
The jurisdiction of the Complaints Committee is to investigate and deal with the conduct of Australian legal practitioners - s 409 of the LP Act. In her submissions to the Tribunal, Ms Wookey says, and I accept, that at the time that she was engaged as an Assistant Ombudsman, she did not hold a practising certificate and was not an 'Australian legal practitioner' as defined by s 5 of the LP Act. That fact would not, of itself, necessarily deprive the Complaints Committee of jurisdiction to investigate the conduct since Ms Wookey is, so far as the Tribunal is aware, currently an Australian legal practitioner, and a complaint may be made about the conduct of an Australian legal practitioner irrespective of when the conduct is alleged to have occurred. However, the fact that Ms Wookey was not, at the time, the holder of a current practising certificate, and therefore not an 'Australian legal practitioner' for the purposes of the LP Act, is of significance to Mr Winzer's complaint.
Mr Winzer's complaint is that Ms Wookey's decision not to act upon his complaint is, he contends, 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 definition of 'unsatisfactory professional conduct' as defined in s 402 of the LP Act. That section provides:
Unsatisfactory professional conduct
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.
To be 'unsatisfactory professional conduct' the conduct must be conduct of an Australian legal practitioner. As already observed, Ms Wookey was not, at the relevant time, an Australian legal practitioner in the sense that that expression is now used in the LP Act. Her conduct as Assistant Ombudsman was nonconduct occurring in connection with the practice of law. As Ms Wookey correctly observes in her submissions, it was not a prerequisite to appointment as Assistant Ombudsman that she be a legal practitioner. Performing the functions of an Assistant Ombudsman is not, and does not involve, the practice of law. The Complaints Committee was correct in so finding.
It is true that 'professional misconduct' as defined by s 403 of the LP Act includes conduct occurring otherwise than in connection with the practice of law that would, if established, justify a finding that a practitioner is not a fit and proper person to engage in legal practice. Nothing in Mr Winzer's complaint suggests that Ms Wookey's conduct renders her not fit and proper to engage in legal practice, and there is nothing in the materials before the Tribunal which is capable of supporting any such suggestion.
The Complaints Committee's decision was based on a conclusion that it was not in the public interest for the Committee to seek to examine the practitioner's conduct, given that the Ombudsman is an officer of the Parliament and that oversight of the Ombudsman's functions is undertaken by Parliament. In my view that was a sound conclusion, especially in the context of a complaint by Mr Winzer, essentially to the effect that Ms Wookey should have come to a different conclusion. Leave pursuant to s 435(2) of the LP Act should be refused on that basis.
Furthermore, given that Ms Wookey was not engaged in the practice of law at the relevant time, an allegation of unsatisfactory professional conduct could not, in any event, be made out. It follows that, even if the decision that Mr Winzer's complaint was unreasonable was wrong, or attended with doubt, no substantial injustice would be done by leaving the decision unreversed. The application should be dismissed.
Mr Winzer's other arguments
In his submissions dated 27 January 2011, Mr Winzer raised a number of contentions.
First is that he contends that the Complaints Committee dealt with his matter under s 425, rather than s 435, of the LP Act. Section 425 of the LP Act empowers the Complaints Committee to dismiss a complaint if it is satisfied that there is no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of unsatisfactory professional conduct or professional misconduct, or it is in the public interest to do so. The reasons provided by the Complaints Committee specified that it was dismissing the complaint because it was in the public interest to do so. The letter concluded 'for the above reasons, the Committee found that the complaint to the Committee was unreasonable.'
Mr Winzer is correct that the Complaints Committee's decision was made pursuant to s 425 of the LP Act. That does not, however, remove the requirement of s 435(2) of the LP Act. That subsection provides:
(2)If the Complaints Committee, in its reasons for its decision, specifically finds the complaint
(a)to be trivial, unreasonable, vexatious or frivolous;
…
the person aggrieved cannot apply to the State Administrative Tribunal for a review of the decision without the leave of the Tribunal.
Section 435(2) of the LP Act makes reference to a finding in the Complaints Committee's reasons for decision. The decision, for which reasons are given, is a decision under s 425 of the LP Act. In other words, the requirement for leave under s 435(2) specifically contemplates a decision having been made under s 425, and a finding as part of that decision that the complaint was unreasonable. That is what occurred in this case. Leave is therefore required for a review of that decision.
Mr Winzer has, in this matter, as in the other applications brought against other legal practitioners, indicated that he wished to have his applications referred to mediation. He has made reference to certain publications which correctly identify that the Tribunal uses mediation or other facilitated dispute resolution techniques in resolving matters which come within its jurisdiction.
Mediation is frequently a desirable process in matters before the Tribunal, and frequently assists in meeting the objectives of the Tribunal specified in s 9 of the State Administrative Tribunal Act 2004 (WA). It does not follow, however, that mediation will be ordered in every case. Where there is no right of review in the absence of leave of the Tribunal, as in this case, the objectives of the Tribunal will, in many cases, be better served by resolving the question prior to embarking on procedures in the Tribunal which consume the resources of both the Tribunal and the potential respondents to a review application. It is quite apparent from Mr Winzer's exchanges during directions hearings that his motivation for these proceedings is not to achieve the imposition of some disciplinary penalty. Rather, as Mr Winzer said in a directions hearing on 11 January 2011:
Please accept my apologies for this, but I'm, in a sense, using this agency as leverage to get someone to sit down with me and give me my job back.
To the extent that this is Mr Winzer's objective in bringing these proceedings, it is misconceived. The question of leave under s 435(2) of the LP Act involves discrete and limited issues. It would have been inappropriate for the Tribunal to order mediation between Mr Winzer and Ms Wookey. Ms Wookey no longer resides in Western Australia, is no longer the Assistant Ombudsman, and could not in any way assist Mr Winzer in the way that he hopes to be assisted.
Orders
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 [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT
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