WOOD and LAW COMPLAINTS OFFICER AS DELEGATE OF THE LEGAL PROFESSION COMPLAINTS COMMITTEE - [2024] WASAT 35

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION:   WOOD and LAW COMPLAINTS OFFICER AS DELEGATE OF THE LEGAL PROFESSION COMPLAINTS COMMITTEE [2024] WASAT 35
MEMBER:   PRESIDENT PRITCHARD
HEARD:   22 AUGUST 2023
DELIVERED          :   26 APRIL 2024
FILE NO/S:   VR 48 of 2023
BETWEEN:   JAMES ANDREW WOOD
Applicant
AND
LAW COMPLAINTS OFFICER AS DELEGATE OF THE LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
JAY EVANS-WHEELER
Second Respondent

Catchwords:

Vocational regulation – Legal practitioners – Review Proceedings – Application for review of decision of Law Complaints Officer as delegate of Legal Profession Complaints Committee to dismiss complaint against practitioners – Allegation of unsatisfactory professional conduct or professional misconduct – Application for an extension of time to commence review proceedings – When an application for review is commenced – Principles in relation to the grant of an extension under rule 10 of the State Administrative Tribunal Rules 2004 – Application of s 92(4) of the State Administrative Tribunal Act 2004 to a grant of an extension of time – Prejudice and detriment resulting from a grant of an extension of time – Power of the Tribunal to award costs or damages under s 87(3) of the State Administrative Tribunal Act 2004 – Application for an extension of time dismissed – Application for review dismissed

Legislation:

Freedom of Information Act 1992 (WA)
Legal Profession Act 2008 (WA), s 425(a), s 435, s 435(1)
Legal Profession Conduct Rules, r 27(1)(b), r 27(1)(f)
Legal Profession Uniform Law Application Act 2022 (WA), s 260(a), s 318, s 318(1)(a), s 318(1)(b), s 318(1)(c), s 318(2), s 319, s 319(1)(a)(ii), s 319(1)(b), s 319(2), s 435
State Administrative Tribunal Act 2004 (WA), s 36(5), s 87(2), s 87(3), s 92(1), s 92(2), s 92(4)
State Administrative Tribunal Rules 2004 (WA), r 9, r 10
Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 75(2), s 126, s 126(1), s 126(4)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
First Respondent	:	Mr N D Pope & Ms N Mulvaney
Second Respondent	:	Mr A T Macknay

Solicitors:

Applicant	:	In Person
First Respondent	:	In Person
Second Respondent	:	MDS Legal

Cases referred to in decision(s):

Australian Pacific Airports (Melbourne) Pty Ltd v Hume CC [1999] VCAT 47
B and Law Complaints Officer as delegate of the Legal Profession Complaints Committee [2023] WASAT 83
Bailey and Legal Profession Complaints Committee [2011] WASAT 164
Becton Corporation Pty ltd v Port Phillip CC [2004] VCAT 1897
Chen and Law Complaints Officer [2022] WASAT 26
Decleah Investments Pty Ltd v Cardinia SC [2009] VCAT 1852
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198
Freeman Developments Pty Ltd v Knox CC & Anor [2002] VCAT 1264
Gray v Vero Insurance Limited (Domestic Building) [2009] VCAT 619
Greenwood and Legal Profession Complaints Committee [2010] WASAT 31
Herron v McGregor (1986) 6 NSWLR 246, 254-255
Hewett v Medical Board of Western Australia [2004] WASCA 170
Howle v Best [2012] WASC 62
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Li v Legal Profession Complaints Committee [2014] WASCA 179
LJ Constructions Pty Ltd v Four Six Two Beach Road Pty Ltd [2003] VCAT 1345
Maddingley Brown Coal Pty Ltd v Moorabool SC [2020] VCAT 908
Petridis Cornetta Architects v Banyule CC (2002) 11 VPR 189
Pole v Stonnington CC (1999) 4 VPR 184; [1999] VCAT 13
Preshaw v Darebin CC [2007] VCAT 1875
Young v Environment Protection Authority [2009] VCAT 564

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In these proceedings, Mr Wood seeks a review by the Tribunal of a decision (LPCC Decision) made on 30 June 2022 by the Law Complaints Officer, as the delegate of the Legal Profession Complaints Committee, as it was then called (LCO). The LPCC Decision concerned a complaint made by Mr Wood about the conduct of the second respondent (Complaint). During the period from about late December 2013 until 21 July 2014, the second respondent had been Mr Wood's lawyer, and acted for him in relation to proceedings in the Warden's Court, concerning a dispute over a mining tenement. Mr Wood's complaint about the second respondent arose from her termination of her retainer on 21 July 2014. In the LPCC Decision, the LCO dismissed the Complaint, pursuant to s 425(a) of the Legal Profession Act 2008 (LP Act).
Mr Wood commenced the present proceeding on 29 May 2023, by filing an application for a review of the LPCC Decision (Review Application). The Review Application was filed almost 11 months after the LPCC Decision. Rule 9 of the State Administrative Tribunal Rules 2004 (WA) (SATRules) requires that an application to the Tribunal in its review jurisdiction must be made within 28 days of the day on which the decision-maker gives notice of the decision. The present proceeding was thus commenced approximately 10 months out of time. Mr Wood therefore requires an extension of time in which to commence the proceeding. The first respondent submitted that Mr Wood had not provided a satisfactory explanation for the delay sufficient to grant an extension. The second respondent opposed the grant of an extension, and pointed, in particular, to prejudice or detriment that she would suffer were an extension to be granted.
The State Administrative Tribunal Act 2004 (WA) (SAT Act) permits rules to be made enabling the Tribunal to extend time, even though the time for complying with a time limit has passed.[1] Rule 10 of the SAT Rules permits the Tribunal to extend the time fixed for the commencement of a proceeding. However, s 92(4) of the SAT Act relevantly provides that the Tribunal cannot extend time if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages.
[1] SAT Act, s 92(2).
While these reasons concern whether Mr Wood should be granted an extension of time within which to commence the proceeding, two collateral issues must also be addressed. The first is whether the Tribunal has jurisdiction to deal with the Review Application. The second concerned the status of correspondence Mr Wood sent to Tribunal on 19 July 2022 (19 July correspondence), which was allocated a matter number (VR 62 of 2022), and more particularly, whether that correspondence constituted an application for a review of the LPCC Decision, such that no extension of time was in fact required.
For the reasons which follow:
(a)I am satisfied that the Tribunal has jurisdiction to deal with this proceeding;
(b)The 19 July correspondence in VR 62 of 2022 did not constitute a valid application for a review of the LPCC Decision. The 19 July correspondence did not amount to an application for an extension of time in which to commence a review, rather merely foreshadowed that Mr Wood would require an extension of time in which to lodge an application for review; and
(c)I am not persuaded that an extension of time should be granted to extend the time for Mr Wood to commence the present proceeding to 29 May 2023.
The application for an extension of time within which to commence the present proceeding will therefore be dismissed.
In these reasons I deal with the following matters:
(a)Overview of the factual background relevant to Mr Wood's complaint in relation to the second respondent;
(b)The status of the 19 July correspondence in VR 62 of 2022;
(c)The Tribunal's jurisdiction to deal with this proceeding;
(d)Principles in relation to the grant of an extension under rule 10 of the SAT Rules, including the application of s 92(4) of the SAT Act;
(e)Overview of the bases for Mr Wood's application for an extension of time;
(f)Assessment of the factors relevant to the grant of an extension of time, and why the extension application should be refused;
(g)The detriment and prejudice claimed by the second respondent;
(h)The orders which should be made.

(a) Overview of the factual background relevant to Mr Wood's complaint in relation to the second respondent

In order to understand Mr Wood's case, it is necessary to give a more detailed overview of the factual background than might otherwise have been required.
It appears that, prior to 21 July 2014, the second respondent had been retained by Mr Wood in connection with proceedings in the Warden's Court concerning a dispute over a mining tenement (and which appears to have been an application for forfeiture of the mining tenement, in which Mr Wood held a 50% share). On 21 July 2014, the second respondent advised Mr Wood, by email, of her regret that she had been recently diagnosed with an illness that would prevent her from taking his case any further, that she 'was not taking any further workload' and that she had 'had to write this email to a number of clients'. Mr Wood subsequently engaged another lawyer to act for him in the Warden's Court proceedings, which eventually settled.
However, almost six years later, in January 2020, Mr Wood contacted the second respondent and complained about the termination of the retainer, the way he had been treated, and set out his view that as a result of her conduct, he had been able to achieve only a modest award of damages in the settlement of the Warden's Court proceedings, when his loss was in fact much higher. He referred to a 'great loss of millions of dollars through no fault of my own'.[2]
[2] Applicant's document dated 16 August 2023.
Shortly thereafter, on 13 March 2020, Mr Wood made the Complaint to the Legal Profession Complaints Committee (LPCC) (as it then was) in relation to the second respondent's conduct.
On 15 September 2020, Mr Makore, a Legal Officer in the Rapid Resolution Team of the LPCC, noted the receipt of the Complaint, and recorded Mr Makore's understanding of the Complaint, which comprised three concerns about the second respondent's conduct, namely:
1.On 21 July 2014 without notice, the practitioner terminated her services and did not assist you in finding a new lawyer;
2.On termination, the practitioner did not provide you with a summary of work done or what you were required to do; and
3.The practitioner's actions left you vulnerable to accepting an unfavourable settlement.'
Mr Makore advised that he had discussed these concerns with the second respondent, who had provided background information. He noted that she had:
… acknowledged that the termination of services was abrupt on the basis of her opinion that you may have omitted relevant material and facts in your instructions and as such she no longer had mutual confidence and trust in the client lawyer relationship. She says that upon termination, she told you to get independent legal advice, returned all documents and told you to contact the Warden's Court. [She] does not accept that the court outcome following the termination of court services would have been detrimental as the matter was listed for mediation.
Mr Makore then set out his preliminary views about the Complaint. In summary, they were that there was no basis on which a conduct issue could be referred for investigation, because:
·Generally, a practitioner is entitled to terminate a retainer if, amongst other things, the practitioner is of the view that a client is not providing full and/or adequate instructions, and that rule 27(1)(f) of the Legal Profession Conduct Rules (Conduct Rules) provided that a practitioner may terminate a retainer where mutual trust and confidence has irretrievably broken down;
·In the event of a practitioner terminating a retainer, there is generally no obligation on a practitioner to assist the client in finding a new lawyer (other than where the client had been charged with a serious criminal offence);
·Mr Wood had been able to secure an extension of time from the Warden's Court, and so no immediate prejudice was suffered by virtue of the timing of the termination of the retainer;
·Absent a specific provision in a costs agreement granting the client an entitlement to a summary of the work done at termination, there was no obligation on a practitioner to provide one;
·If Mr Wood considered that the second respondent had not acted in his best interest in the proceedings, or was negligent and that he had a claim in damages against her, then he should obtain legal advice.
Far from leaving Mr Wood satisfied with the explanation for what had occurred, the second respondent's explanation for her termination of the retainer left Mr Wood more aggrieved than he had previously been. It appears he then provided Mr Makore with a copy of a costs agreement he had signed with the second respondent (Costs Agreement) which referred, amongst other things, to the bases on which the retainer could be terminated, and to a requirement that 14 days' notice of the termination be provided. Mr Makore made further enquiries of the second respondent, and after doing so, he wrote to Mr Wood again on 12 January 2021, and advised:
·The second respondent had advised Mr Wood that she could no longer act for him on 21 July 2014, and that 'although not explicitly stated, an allowance was made for the relevant 14 days' notice';
·The second respondent confirmed that her reasons for terminating the retainer were a combination of the loss of mutual trust and confidence as well as her diagnosed health condition and its effect on her ability to continue to act;
·On 21 August 2014, Mr Wood retained another lawyer to act for him in those proceedings;
·The next mention date in the Warden's Court following the termination of the retainer (on 24 August 2014) was adjourned by consent of the parties to those proceedings.
Mr Makore advised that it was still the case that he had not identified a conduct issue that should be referred for investigation, because neither the grounds for the termination nor the manner in which the 14 days' notice was provided enlivened any conduct issues, particularly in light of the second respondent's ill health at the time, no adverse orders were made on the next court date and, in light of the adjournment of the mention listed for 24 August 2014, Mr Wood was able to secure new legal representation in sufficient time for court documents to be filed.
Mr Wood was not satisfied by that explanation, and the Complaint was referred to the LCO, for a decision. The LCO noted the grievances encapsulated by the Complaint, which were those set out by Mr Makore in his earlier correspondence, namely:
1.On 21 July 2014 without notice, the practitioner terminated her services and did not assist you in finding a new lawyer;
2.On termination, the practitioner did not provide you with a summary of work done or what you were required to do; and
3.The practitioner's actions left you vulnerable to accepting an unfavourable settlement.
The LCO concluded that there was no reasonable likelihood that the second respondent would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct, and therefore concluded that Mr Wood's complaint should be dismissed under s 425(a) of the LP Act. In summary, the LCO's reasons for the LPCC Decision were as follows:
·The Costs Agreement stipulated the grounds on which the second respondent's firm could terminate the retainer;
·Clause 9 of the Costs Agreement provided that if the firm intended on ending the retainer, it would provide 14 days' notice of that intention;
·The practitioner had advised Mr Wood that a recent health diagnosis was the reason for the termination of the retainer, but having regard to the information she provided to the LPCC, she also relied on two bases for termination set out in the Costs Agreement (namely, if the client failed to pay bills and if the client gave instructions that were deliberately false or intentionally misleading);
·In so far as the second respondent had referred to Mr Wood's difficulties in paying his bills, that referred to complications that had arisen when Mr Wood addressed a cheque to the wrong recipient. In any event, this was not the second respondent's main reason for terminating the retainer;
·The second respondent acknowledged that the termination of the retainer was abrupt but said that that was based on a combination of the breakdown of the mutual trust and confidence in the lawyer-client relationship, issues with the payment of fees, as well as her ill health;
·The second respondent nevertheless claimed that she had made allowance for the relevance 14 days' notice period and said that to her recollection, no matters were awaiting action during that period;
·While orders made by the Warden's Court required documents to be filed on 25 July 2015, Mr Wood had advised the LPCC that those orders had been vacated;
·The termination of the retainer in this case fell within rule 27(1)(b) and rule 27(1)(f) of the Conduct Rules, which provided that a practitioner may terminate a retainer pursuant to an express right to terminate in a written costs agreement, or where mutual trust and confidence had irretrievably broken down;
·Not all breaches or errors by a practitioner amounted to unsatisfactory professional conduct. Rather, an appreciable departure from the standard of conduct required was necessary to constitute unsatisfactory professional conduct. While the 14 days' notice of termination required under the Costs Agreement was not given to Mr Wood, that deficiency did not rise 'to the required level to amount to unsatisfactory professional conduct or professional misconduct';
·There was no provision in the Costs Agreement which gave Mr Wood an entitlement to a summary of the work done upon the termination of the retainer. Absent such an entitlement, the second respondent was not obliged to provide a summary. The second respondent had, however, recommended that Mr Wood obtain legal advice, she had returned all documents, and she had told Mr Wood to contact the Warden's Court;
·Mr Wood had secured legal representation by the time he reached a settlement of the Warden's Court proceedings. The decision to settle was entirely his, and was made with the benefit of legal advice.
Having regard to the material filed by Mr Wood in the present proceeding, it is apparent that the information conveyed to him by the LPCC about the second respondent's response to the Complaint, and documents he subsequently obtained as a result of an application to the LPCC under the Freedom of Information Act 1992 (WA) as to the explanation the second respondent gave to the LPCC of her reasons for her termination of the retainer, have added to Mr Wood's grievances in relation to the second respondent's conduct. It appears that in addition to his original grievances, Mr Wood now considers that disciplinary action against the second respondent is warranted because:
(i)There was no foundation for the second respondent's claim that she terminated the retainer on the basis of a loss of mutual trust and confidence between them, and that on the contrary, Mr Wood says that at the time the retainer was terminated, the tenor of their communications was cordial, and consistent with the existence of mutual trust and confidence;
(ii)There was no foundation for the second respondent's claim that she terminated the retainer on the basis that Mr Wood had failed to pay her bills, or paid the wrong party, and that on the contrary, Mr Wood points to evidence that he says indicates that he paid the invoices issued by the second respondent, and that he addressed cheques to the entity he was told to pay;
(iii)The second respondent had denigrated Mr Wood's character in suggesting to the LPCC that in his instructions in relation to the dispute concerning the mining tenement, Mr Wood 'did not pass the pub test'. Mr Wood understood that comment to mean that he was stupid;
(iv)Mr Wood questions the veracity of the second respondent's claim that she terminated the retainer on the basis of ill-health, and points to the fact that the second respondent continued to work as a lawyer, and thus did not terminate her retainer with all of her clients;

When he first wrote to the second respondent about his grievances, in January 2020, Mr Wood contended that:
I soon found out that I was required to file a witness statement by 25 July 2014. You had not told me and you had prepared anything. By the time I found out about it it was to[o] late to file the statement. I also found out that a hearing had been scheduled for the matter on ???? (sic) and that you had not prepared anything. I managed to get another lawyer to help me, but by that time, I had missed the dates to file [w]itness statements and the hearing was very close. All I could do was to try, with my new lawyer, to reach a settlement so that I received something for the tenement. The settlement I reached provided for me to receive a small royalty'. Your actions left me in a position where I had no choice but to settle this action on whatever terms I could get.[3]
[3] Document filed by applicant on 29 August 2023 (copy of email to second respondent dated 4 January 2020).
In short, Mr Wood's grievance is that as a result of the second respondent's conduct, he was unable to achieve as favourable a settlement of the Warden's Court proceedings as he otherwise would have. Mr Wood claims that the second respondent 'had not complied with the [Warden's Court] directive.[4]
[4] Applicant's document filed 20 June 2023.
Mr Wood also claims that the lawyer he subsequently engaged told him that because documents had not been filed as required, he was at a disadvantage in negotiations to settle the Warden's Court proceedings.
Mr Wood points to the fact that the second respondent acknowledged to the LPCC that it was 'possible I missed a document filing date', and alleges that that constitutes evidence of her incompetence, and claims that the real reason the second respondent terminated the retainer was to conceal her incompetence.
It may be that Mr Wood's concern in pursuing the Complaint is to obtain compensation from the second respondent about loss or damage he claims to have suffered as a result of her conduct. When he raised his grievances with her, Mr Wood told the second respondent that he was 'so infuriated' with her that he 'decided to seek compensation from you, no matter how long it took to present my case regarding your actions (lack of) to … the Legal Practice Board'.[5] He also referred to his desire to obtain compensation in the course of his correspondence with the LPCC.[6]
[5] Document filed by applicant on 29 August 2023 (copy of email to second respondent dated 4 January 2020).
[6] Email to the Legal Practice Board dated 12 March 2020.
However, these contentions were inconsistent with other statements by him. Mr Wood acknowledges that he was able to obtain an adjournment of the Warden's Court mention date, and an extension of time to file documents. Furthermore, Mr Wood acknowledged that 'it was only through the advice of [the lawyer he subsequently retained] and my being able to obtain a time extension that further damage was averted'.[7]
[7] Applicant's document filed 20 June 2023.
The main grievances which Mr Wood now seeks to maintain in relation to the second respondent, and the reason why he considers disciplinary action against her is warranted, are matters which were not part of the Complaint. Mr Wood stated that when he made the Complaint:
I was totally unaware at that point in time of the severity of the second respondent's apparent incompetence in:
·Not filing the requested documents from the courts;
·The lies provided by documentation and part admitted to, told after a number of years;
·The denigration of my good character.
As I became more fully aware of the second respondent's lack of professionalism, and the multiple breaking of 'Rules' I was able to find the evidence supporting the allegations presented to the court and upon which my appeal is based.[8]
[8] Applicant's document filed 18 August 2023.
Mr Wood points to these matters as demonstrating that the LPCC Decision is not the correct and preferable decision.
In relation to the grievances which were the subject of the Complaint, Mr Wood:
(a)maintains that the retainer was terminated without any warning or notice, much less 14 days' notice;
(b)maintains that the second respondent did not assist him to find another lawyer, despite the pending Warden's Court mention date; and
(c)says that under the Costs Agreement (clause 6) he was entitled, on a reasonable request, to a written report on the progress of his matter, which the second respondent failed to provide when she terminated the retainer.
Mr Wood considers that the LPCC Decision was not fair, that he was not afforded procedural fairness, and that the LCO was biased towards the second respondent in that he preferred her explanation of what had occurred to Mr Wood's claims.

(b) The status of the 19 July correspondence in VR 62 of 2022

For the sake of clarity, it is appropriate to deal with the status of the 19 July correspondence to the Tribunal, which was given the matter number VR 62 of 2022, in order to explain why I do not consider that that correspondence constituted either a review application or an application for an extension of time.

The documents filed in VR 62 of 2022

The 19 July correspondence which Mr Wood lodged at the Tribunal was a paper copy of an email addressed to '[email protected]'. The email itself was not received by the Tribunal through its email system (because it referred to the wrong email address). Rather, Mr Wood lodged a paper copy of the 19 July correspondence at the Tribunal's registry on 19 July 2022.
The reference line of the 19 July correspondence was 'Application to Appeal a ruling of the Legal Profession Complaints Committee'. The correspondence stated:
I wish to appeal the above within the 28 day cut off limit. I will be appealing on legal grounds. I don't have sufficient time to gather evidence to present on my behalf and the purpose of this email is to notify of my intention to appeal when I can gather such information.
This may take me three month's (sic) or more to collate, but I am hoping that an extension of time may be granted in my favour. I will be quite happy to be placed on the list for notice from the future point of presenting my case and evidence.
The 19 July correspondence did not identify the decision which Mr Wood wished to have reviewed, but merely referred to the 'above' which was presumably a reference to the heading of the email, namely 'Application to Appeal a ruling of the Legal Profession Complaints Committee'.
The Tribunal's registry staff appear to have treated the 19 July correspondence as an application for a review of a decision of the LPCC pursuant to s 319 of the Application Act. The correspondence was given a matter number, namely VR 62 of 2022. The Tribunal sent an email to Mr Wood on 22 July 2022, enclosing a letter of the same date, which advised Mr Wood as follows:
I refer to the above application lodged on 19 July 2022. If you wish to proceed with your application payment of the application fee of $635.00 is required within 21 days of the date of this letter. An invoice for the outstanding amount is attached.
Should you be entitled to a Fee Concession, please complete the attached form.
If the application fee is not paid, or there has been no communication with the Tribunal within 21 days, the application will be referred to the Tribunal for dismissal under s 46 of the [SAT Act]. …
If you have any enquiries, please contact the Tribunal … .
Mr Wood received that email from the Tribunal and responded as follows:
Thank you for being prompt in contacting me regarding this matter.
The lodging to eCourt portal (sic) is not allowing me to enter my email address the one you have corresponded with me, namely … .
I am flying out of Perth on Saturday 23 July 2022 and returning to the United Kingdom to visit my elder brother who is not well.
I shall contact you upon my return and then see if I can electronically complete the Court Portal application or whether I shall submit in a paper form.
I do wish to appeal the Legal Profession Complaints Committee, hence my application for an extension of time to lodge my appeal.
The Tribunal heard nothing from Mr Wood until 23 April 2023. On that date, Mr Wood sent an email to the Tribunal in which he asked if the Tribunal could give him 'Procedural Advice in my matter concerning the Decision of the LPCC'.
An officer of the Tribunal responded by email on 8 May 2023 and advised that the Tribunal was unable to provide him with advice regarding his enquiry and suggested that he may wish to obtain independent legal advice. The email went on:
I have looked at our records for VR 62/2022 and this shows that we received an application from you on 19 July 2022, however as we received no payment for this application, your application was unable to progress.
Should you wish to bring this matter to the Tribunal, you will need to lodge a new application (which you can do via the eCourts Portal of WA) and provide payment of this application.
Should you have any questions as to how to lodge an application or the payment process, you can call the Tribunal … .
On 10 May 2023, Mr Wood replied by email as follows:
Thank you for your reply.
Yes, you are correct that I did not make an application on/after 19 July 2022 for the same exact reason that I have not made one yet, namely that I am on a full aged pension with NO superannuation and trying to find funds to forward my case!
I have been informed that the application would be approximately $100.00 plus, due to being an aged pensioner, that I could find, but I fear facing a lawyer on my own acting for the LPCC with myself having absolutely no legal training apart from what I have gleaned over the years, and my case is too important to leave it to any chance of my being deliberately compromised by the LPCC's acting lawyer with legal issue that I would have no knowledge of replying to. Then there is the operation of providing copies of documentation? Yes, I do need legal representation and I have been trying now for over twelve months to obtain legal advice … I have tried all the government agencies to no avail.
…
I ask, how on earth can you get justice if you are in the same financial position that I am in? Can you please direct me to a government / private party that can help my distress?
I would like my case recorded that I intend to continue my action for the reversal of the LPCC's findings but it is going to take 'Time' to become financial enough to continue my action which may 'trigger' an out of time clause! (sic)
On 22 May 2023, the Tribunal responded to that email to advise:
I write in reference to your reply below.
In order for the Tribunal to have any involvement in your concerns, an application must be brought before it. As you are aware, that application requires payment. This payment can be reduced should you have a concession card … .
While I appreciate that you do not have the funds to forward your case, the Tribunal cannot progress an application while waiting for payment. You may wish to consider contacting Legal Aid or alternatively review a number of Community Legal Centres … .
Your email will be recorded … on your previous application VR 62/2022.'
On 23 May 2023, Mr Wood responded by email to the Tribunal as follows:
Thank you for your reply. I drafted my first query after advice from your 'front desk' hence using the term Procedural Advice. I now have the necessary forms and I will complete and pay for my application. The other reason for not previously applying was the fear of my case eventually coming up for mention and myself still not having the funds to proceed' (sic)
I have approached about a dozen no fee or low fee lawyers including Legal Aid and other government agencies to no avail to date, but I will endeavour to try again. Your reply was of assistance.

Determination – the status of VR 62 of 2022

In my view, the 19 July correspondence did not constitute a valid application to the Tribunal for a review, at the least because it was not accompanied by an application fee. At no stage did he pay an application fee in respect of VR 62 of 2022, despite having been explicitly told by the Tribunal that that was necessary in order to progress his application. Mr Wood was also expressly put on notice that failure to pay would result in the application being referred to the Tribunal to be dismissed.
I am satisfied that prior to filing the present Review Application, Mr Wood had not filed an application for review against the LPCC Decision. The 19 July correspondence was not a review application.
Further, I do not consider that the 19 July correspondence can properly be characterised as an application for an extension of time. At the time that he lodged the 19 July correspondence, Mr Wood would have been within time to commence a review application. Further, the 19 July correspondence, on its face, simply indicated that Mr Wood intended to file a review application, anticipated that it would be out of time (possibly by 3 months if not more), and that he was 'hoping' that an extension of time may be granted in his favour. Furthermore, the correspondence did not indicate the date by which Mr Wood wished to file his review application out of time, but rather gave only an estimate of how long it might be until he could file the application. No material was filed with the 19 July correspondence which might permit the Tribunal to conduct any real assessment of whether an extension of time should be granted. And there is nothing to suggest that Mr Wood served the LPCC with the 19 July correspondence so as to permit them to be heard in respect of any application. That is consistent with the conclusion that the 19 July correspondence did not constitute an application for an extension of time, but rather simply foreshadowed that one would, in time, be made.
Mr Wood submitted that in the 19 July correspondence he explained that he had to return to the United Kingdom to see his brother, who was unwell, and that he requested an extension of time to lodge the review. He submitted that 'due to prevailing stresses upon me in that time period, including the illness of my brother, I firmly believed that [the 19 July correspondence] 'covered' me for the 28 day time constraint, being six days before the expiry of the 28 day time limit'.[9]
[9] Applicant's document filed 17 July 2023.
I am unable to accept that submission. Mr Wood did not receive anything from the Tribunal to indicate that an extension of time had been granted. Moreover, it should have been clear to him that whatever the Tribunal might have made of the 19 July correspondence, it had not been received as an application for an extension of time, and it had been made clear that the matter would not be progressed until the application fee was paid. That was made very clear by the Tribunal's letter of 22 July 2022 which indicated that absent payment of a fee or communication with the Tribunal within 21 days, the 'application' was liable to be dismissed.[10]
[10] Second Respondent's submissions at [41].
Despite all that, at no stage prior to 23 April 2023 did Mr Wood seek to clarify his position in respect of the 19 July correspondence for example, to clarify that it was, in fact, intended to be an application for an extension of time, to clarify whether an extension had been granted and until when, or to progress the matter in any way.
Even if the 19 July correspondence had been treated as an application for an extension of time, and even if it should now be viewed in that way, the fact remains that that application has not been determined. Until such time as an application for an extension of time has been granted, an applicant is not at liberty to file an application for review out of time and to assume, or expect, that it will simply proceed.
Furthermore, even if the 19 July correspondence were now to be treated as an application for an extension of time, at the very least, it could not progress to determination until such time as Mr Wood filed supporting documentation. He did that only in the course of pursuing the present application. It would be necessary to take into account that delay in progressing the application in VR 62 of 2022. That being the case, the position in relation to delay would be no different than if the Tribunal approached the matter, as I have done, on the basis that the extension of time was first sought in the course of the Review Application.

(c) The Tribunal's jurisdiction to deal with this proceeding

On 1 July 2022, the LP Act was repealed by s 260(a) of the Legal Profession Uniform Law Application Act 2022 (WA) (Application Act). That Act provides that the Legal Profession Uniform Law (WA) (Uniform Law) applies as a law of Western Australia on and from 1 July 2022 (commencement day).[11] That being the case, it is appropriate to briefly explain why I am satisfied that the Tribunal has jurisdiction to deal with the Review Application, including to determine whether to grant an extension of time within which to bring the Review Application.
[11] Application Act, s 6.
Despite the repeal of the LP Act, various transitional provisions in the Application Act deal with matters commenced, but not completed, under the LP Act. This case falls within s 318 and s 319 of the Application Act. Section 318 of the Application Act applies because prior to the commencement day, the LPCC had made a decision to dismiss the Complaint, which was made under the LP Act,[12] and Mr Wood had not applied for a review of that decision under s 435(1) of the LP Act.[13] Furthermore, prior to the commencement day, Mr Wood was not precluded from seeking a review under the LP Act for any reason, including that the time limit for making the application had passed.[14] That was because the time limit only ran from the date of the LPCC Decision, on 30 June 2022. Consequently, Mr Wood was permitted to apply to the Tribunal for a review of the LPCC Decision under s 319 of the Application Act.
[12] Application Act, s 318(1)(a).
[13] Application Act, s 318(1)(b).
[14] Application Act, s 318(1)(c).
Section 319 of the Application applies because Mr Wood made the Review Application after the commencement day under s 318(2),[15] and the Tribunal had (necessarily) not made a final decision before commencement day.[16] That being the case, s 435 of the LP Act applies to the Review Application as if s 435 were not repealed.[17]
[15] Application Act, s 319(1)(a)(ii).
[16] Application Act, s 319(1)(b).
[17] Application Act, s 319(2).
For the sake of completeness, I note that the first respondent in the proceedings is not correctly named. The decision maker who made the LPCC Decision was the Law Complaints Officer as the delegate of the LPCC, (although the LCO did not indicate in the LPCC Decision that he was acting in the exercise of delegated authority).[18]
[18] As the Tribunal has previously observed, when a delegate makes a decision in the exercise of delegated authority, they should indicate in the decision that they are acting in the exercise of that delegated authority: Chen and Law Complaints Officer [2022] WASAT 26 (Chen) at [68] – [69].
However, the repeal of the LP Act means that the LPCC established under that Act no longer exists. Furthermore, the office of the Law Complaints Officer established under the LP Act also no longer exists. And, necessarily, delegations of authority granted under the LP Act also cease to operate (subject to the application of any transitional provision). Despite that, I am of the view that the first respondent should properly be named 'Law Complaints Officer as delegate of the Legal Profession Complaints Committee', essentially for the reasons explained by the Tribunal in B and Law Complaints officer as delegate of the Legal Profession Complaints Committee.[19]
[19] B and Law Complaints Officer as delegate of the Legal Profession Complaints Committee [2023] WASAT 83 at [63] – [73].

It is therefore appropriate to make an order, pursuant to s 36(5) of the SAT Act, amending the name of the First Respondent to be the 'Law Complaints Officer as delegate of the Legal Profession Complaints Committee'.

(d) Principles in relation to the grant of an extension under rule 10 of the SAT Rules, including the application of s 92(4) of the SAT Act

As I have already noted, the time limit for applying to the Tribunal for a review of a decision is 28 days after the day on which the decision maker gives notice of the decision.[20]
[20] SAT Rules, r 9.
However, under rule 10 of the SAT Rules, the Tribunal may, relevantly, on an application by any applicant, extend any time fixed under the SAT Act, an enabling Act, or the SAT Rules for the commencement of a proceeding, and may do so, even if the time limit had expired before the application for an extension was made.
In Howle v Best,[21] Simmonds J explained that the discretion to extend time is given for the sole purpose of enabling the Tribunal to do justice between the parties.[22] His Honour pointed out that an extension of time is not automatic, and that an applicant must identify some material upon which the Tribunal can exercise its discretion.[23]
[21] Howle v Best [2012] WASC 62 at [31].
[22] Similarly, it has been recognised that the overriding purpose of s 126 of the VCAT Act (which permits the VCAT to extend the time limit for the commencement of a proceeding) is to enable justice to be done: see Pole v Stonnington CC (1999) 4 VPR 184; [1999] VCAT 13.
[23] Similarly, it has been held that a time limit will not automatically be extended, but the power in s 126 permits the VCAT to do so if an extension accords with the requirements of justice: see Freeman Developments Pty Ltd v Knox CC & Anor [2002] VCAT 1264.
There is no doubt that the power to extend time under r 10 of the SAT Rules confers a wide, but not unfettered, discretion on the Tribunal.
It has often been said that it is well established that the major factors to be considered by the Tribunal in determining whether to grant or refuse an application under rule 10 of the SAT Rules for an extension of time to bring an application for a review are those stated in Esther Investments Pty Ltd v Markalinga,[24] namely:
·the length of the delay,
·the reasons for the delay,
·the applicant's prospects of succeeding in the review (the prospects of success should be considered because if the substantive application has no merit then it would be inutile to grant an extension of time in which to bring it); and
·the extent of any prejudice to the other party.[25]
[24] Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198 (Kennedy J).
[25] See eg Li v Legal Profession Complaints Committee [2014] WASCA 179 at [15] (Newnes JA and Murphy JA), although it is to be noted that their Honours simply referred to the principles which were not in contest on the appeal.
These factors have been applied in the context of an application by a complainant for a review of a decision of the LPCC to dismiss his complaint against a practitioner.[26]
[26] Bailey and Legal Profession Complaints Committee [2011] WASAT 164 (Bailey) at [33] – [40].
It should be borne in mind that these factors are not exhaustive. Other factors, relevant to where the interests of justice lie, may call for consideration in a particular case. In relation to s 126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), for example, the factors which may be applied[27] (and again, these are not exhaustive) include the applicant's actions and, in an application for a review of a decision, whether the applicant has continued to make the decision-maker aware that he or she contests the finality of the decision as distinct from allowing the decision-maker to believe that the matter was finally concluded; and (especially in the planning context) whether the delay may result, if the application for extension is successful, in the unsettling of other people or of established practices.[28]
[27] The factors ordinarily applied in applications to extend time to commence proceedings in VCAT are drawn from Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 (Wilcox J).
[28] This consideration recognises that in particular contexts, time limits play an important role in the operation of the system governing the issue of permits, works approvals and so on, and that in the absence of time limits for seeking a review, the certainty of the system would quickly fall away: see, eg, Becton Corporation Pty ltd v Port Phillip CC [2004] VCAT 1897 at [6]; Young v Environment Protection Authority [2009] VCAT 564 at [26] – [27]; Decleah Investments Pty Ltd v Cardinia SC [2009] VCAT 1852 at [14].
The second respondent submitted that the principles set out above in relation to the grant of an extension of time under rule 10 must be considered in the context of the qualification in s 92(4) of the SAT Act, that the Tribunal's jurisdiction to extend time does not arise if to do so would cause any prejudice or detriment that cannot be remedied by an appropriate order for costs or damages.[29] The second respondent submitted that the existence of prejudice or detriment incapable of being remedied by an order for costs or damages precludes the exercise of the Tribunal's jurisdiction to grant an extension of time, irrespective of the outcome of consideration of the other factors relevant to the exercise of the discretion.[30]

The operation of s 92(4) of the SAT Act

[29] Second Respondent's submissions at [11].

[30] Second Respondent's submissions at [12].

The source of the power to make rules providing for relief from procedural requirements comes from s 92(1) and s 92(2) of the SAT Act, which permit rules to be made to extend or abridge a time limit for, amongst other things, the commencement of a proceeding, and even in circumstances where the time for complying has passed.
However, s 92(4) provides:
The Tribunal cannot extend or abridge time or waive compliance if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages.
Neither the research of counsel, nor my own, has identified any case in this jurisdiction in which the operation of s 92(4) has been considered. Three questions arise in relation to s 92(4):
(a)Does s 92(4) operate as a qualification on the Tribunal's power to extend time under rule 10 of the SAT Rules, or does it add another discretionary consideration to the factors the Tribunal would otherwise consider?
(b)What is the meaning of prejudice or detriment in s 92(4)? and
(c)What is the meaning of the word 'damages' in the phrase 'costs or damages'?

Does s 92(4) impose a qualification on the Tribunal's power to extend or abridge time?

Turning to the first question, the word 'cannot' means 'an inability to do a thing; an impossibility; (also) a statement that something cannot be done'.[31]
[31] Oxford English Dictionary Online.
In my view, the use of the term 'cannot' is strongly indicative that s 92(4) operates as a prohibition on the Tribunal granting an extension of time in the circumstances there described. Nothing in the surrounding context provides any basis for a contrary conclusion. Indeed, the fact that the subsection recognises that the prejudice or detriment that results from an extension of time, but which is compensable by an order of the Tribunal for the payment of costs or damages, is no bar to an extension of time, supports the conclusion that prejudice or detriment which is not compensable in that way will operate as a bar to the grant of an extension.
That construction of s 92(4) is consistent with the construction of s 126(4) of the VCAT Act, on which s 92(4) is clearly based. Subsection 126(4) provides:
The Tribunal may not extend or abridge time or waive compliance if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages.
It will immediately be noticed that s 126(4) differs from s 92(4) in that it provides that the Tribunal 'may not' extend or abridge time, whereas s 92(4) provides that the Tribunal 'cannot' extend or abridge time. Nevertheless, s 126(4) has been construed as containing a prohibition.[32]
[32] Preshaw v Darebin CC [2007] VCAT 1875 [6]; Gray v Vero Insurance Limited (Domestic Building) [2009] VCAT 619 (Gray).
The VCAT has held that s 126(4) clearly operates to thwart the discretion given by s 126(1), so that the VCAT may not extend time if satisfied that to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages.[33]

Prejudice or detriment

[33] Gray at [10].

Neither 'prejudice' nor 'detriment' is defined in the SAT Act. The ordinary meaning of the word 'prejudice' which is relevant in this context is 'disadvantage resulting from some judgment or action of another'.[34] The ordinary meaning of the word 'detriment' is 'loss, injury or damage'[35] and 'loss or damage done, or caused to, or sustained by, any person or thing'.[36]
[34] Macquarie Dictionary Online.
[35] Macquarie Dictionary Online.
[36] Oxford Dictionary Online.
A number of decisions of VCAT have considered the operation of s 126(4) of the VCAT Act. It has been established that the prejudice or detriment to which the subsection refers does not include the prejudice or detriment that would be an inevitable result of any application lodged within time.[37] Rather, the prejudice or detriment referred to is prejudice or detriment caused by the decision to extend time.[38] The prejudice or detriment may be suffered by a party, or by a potential party.[39]
[37] Australian Pacific Airports (Melbourne) Pty Ltd v Hume CC [1999] VCAT 47 at [72].
[38] LJ Constructions Pty Ltd v Four Six Two Beach Road Pty Ltd [2003] VCAT 1345 at [17].
[39] Petridis Cornetta Architects v Banyule CC (2002) 11 VPR 189 (Petridis) [2002] VCAT 399 at [4].
Further, either prejudice or detriment, alone, is sufficient to bar the grant of an extension.[40] The degree of prejudice or detriment involved need not be great or significant or material, but rather, any prejudice or detriment will suffice.[41]
[40] Petridis at [4].
[41] Petridis at [4].
In Gray, the applicants sought an extension of time of almost three years in which to appeal a decision by the respondent. The decision appears to have concerned a payment on an insurance claim for faulty building work. The respondent opposed the grant of an extension of time, and claimed that the delay meant that it had suffered prejudice which could not be remedied by an award of compensation. During the period of delay extensive works had been done to the property, which meant that it was not then possible for the respondent to ascertain the damage which had arisen during the period of its policy. Nor would it be possible for the respondent to test the applicant's evidence as to the state of the damage which occurred during the policy period. The extension of time was refused. Tribunal held that if an extension were granted, so that the applicants could pursue their claim, the respondent could no longer effectively defend itself against that claim:[42]
I consider this to be the critical consideration. It is a prejudice, in my view, which cannot possibly be compensated for by an order for costs or damages. Neither costs nor damages can undo what has been done. The respondent, in my view, is irretrievably prejudiced.
[42] Gray at [12].
In Petridis,[43] the applicants did not seek a review, within time, of a decision in relation to the grant of a permit to them. They then sought an extension of time to bring an application for that review. Because of a change in the planning framework, the result of a refusal of the extension would have been that the applicants would need to apply for a new permit, which would be assessed on the basis of a more stringent planning policy than that which applied when they first sought, and obtained, a permit. The VCAT held that as the new planning policies were intended to be a reform, it would constitute a prejudice to the responsible authority and to other potential parties if the applicants' permit application were able to be assessed under the less stringent, former policy. The VCAT also held that that same outcome also constituted a 'detriment' to the respondent authority, and possibly to potential parties also.[44] As that prejudice or detriment could not be remedied by appropriate orders for costs or damages, the application for an extension of time was refused.[45]

What is the meaning of an order for damages in s 92(4) of the SAT Act?

[43] Petredis.

[44] Petredis at [32], [33], [48].

[45] Petredis at [48].

The word 'damages' is not defined in the SAT Act. The term 'damages' ordinarily refers to a monetary award which is paid to a party either to compensate the party (that is to restore them to the position they would have been in but for the conduct which gave rise to a cause of action in respect of which they have succeeded) or to punish a party for its conduct or to express a court's disapproval for conduct (in the case of punitive or exemplary damages). The context in which the word 'damages' appears in s 92(4), and in particular the fact the costs or damages are awarded to remedy prejudice or detriment caused by another party's pursuit of proceedings out of time, or its conduct in the proceedings (which necessitates an order to abridge or extend the time or to waive compliance with a requirement) suggests that the term is used to refer to compensatory damages.
However, s 92(4) does not, itself, confer on the Tribunal the power to award damages. There may be an argument as to whether such a power could be implied in s 92(4). It is also possible that an enabling Act may permit the Tribunal to award damages, although I am not aware of any provision in the LP Act which would permit an award of damages to a practitioner, which might apply here. However, it seems to me that another source of power can be identified in the SAT Act which would permit the Tribunal to make an award of the kinds of damages contemplated by s 92(4).
While the SAT Act does not confer on the Tribunal an express power to award 'damages' to a party (other than in the context of assessment of an order for damages in respect of the grant of an injunction), by virtue of s 87(3) of the SAT Act the Tribunal's power to make an order for costs also extends to:
… the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
An order of that kind clearly exceeds an order which might ordinarily be described as an order for the payment of costs. In my view, s 87(2), when read with s 87(3) of the SAT Act, would permit the Tribunal to make the kinds of awards of damages as are contemplated by s 92(4) of the SAT Act.
That conclusion is supported by the construction of s 75(2) of the VCAT Act, which is a similarly worded provision, albeit one that applies in far more confined circumstances than s 87(3) of the SAT Act. Subsection 75(2) of the VCAT Act has been construed as conferring a discretion to award compensation,[46] which discretion is very broad.[47]
[46] Maddingley Brown Coal Pty Ltd v Moorabool SC [2020] VCAT 908 (Maddingley) at [10], [15] (President Quigley).
[47] Maddingleyat [9] (President Quigley).
It is not necessary to further explore the limits of the Tribunal's power to make an award in the nature of compensation under s 87(2) and s 87(3) of the SAT Act. It suffices to say that, absent a power under an enabling Act, the only power the Tribunal appears to have to award 'costs or damages' under s 92(4) of the SAT Act derives from s 87(2), when read with s 87(3), of the SAT Act. In the case of a claim of prejudice or detriment which would be caused by an extension of time, the question will be whether that could be remedied by an order for damages under s 87(2) and s 87(3).

(e) Overview of the bases for Mr Wood's application for an extension of time

Mr Wood filed numerous documents in the present proceedings which might properly be described as either submissions, or evidence (as to the merits of the Review Application, or as to his reasons for the delay in bringing that Application) or both. Doing my best to distill from those documents the reasons why Mr Wood says that he should be given an extension of time within which to commence the present proceedings, those reasons are set out below.

(i) Delay

Mr Wood raises a number of arguments in relation to delay.
First, Mr Wood contends that there was no delay, and that no extension of time is required, because he 'submitted the application to contest the handing down of [the LPCC Decision] within the required 28 day time frame'.[48] Mr Wood contends that the Review Application should not have been treated as a new proceeding in the Tribunal and asserted that the Tribunal staff member at the Registry should have checked if the matter already had a matter number.[49] This appears to be a contention that the documents filed in the present proceeding should have been treated as documents in VR 62 of 2022.
[48] Applicant's email of 21 June 2023.
[49] Applicant's document filed 25 July 2023.
Secondly, Mr Wood contends that he was entitled to make a complaint about the conduct of an Australian legal practitioner irrespective of when the conduct is alleged to have occurred. He also contends that the LPCC Decision advised that if he was aggrieved by the decision he was entitled to apply to the Tribunal for a review. He thus appears to contend that either there is no time limit for pursuing complaints about alleged misconduct or that he should be given an extension of time within which to apply in order to exercise that right.
I pause to observe at this stage that Mr Wood appears to confuse the delay in filing the Review Application with his delay in pursuing the Complaint with the LPCC.[50] That may explain the latter argument. In his documentation he refers to the reasons why he delayed for so long in making the Complaint to the LPCC. Those reasons are irrelevant to the present application which, in this respect, is concerned only with the reasons for Mr Wood's delay in bringing the Review Application.
[50] Applicant's email of 21 June 2023.
Thirdly, Mr Wood contends that 'the physical and mental problems that I experienced are directly responsible for the time delay'.[51] Mr Wood explained that he was experiencing considerable stress at the time of the LPCC Decision and afterwards, and that the delay was due to the fact that he did not seek medical help to assist with managing his stress.
[51] Applicant's document dated 16 August 2023.
Mr Wood filed two medical reports, one from his general practitioner, Dr S, dated 14 June 2023, and one from a clinical psychologist, Mr J, dated 19 June 2023, which referred to his diagnosis for stress related symptoms, and treatment for that condition by Dr J.
Fourthly, Mr Wood said that he had to visit the United Kingdom to see his brother, who was unwell. However, he gave no further information in relation to that matter, such as whether the trip was urgent. There was no evidence as to how long he had been away.
Fifthly, Mr Wood submitted that 'my financial constraints made me unable to afford a legal practitioner',[52] that he was fearful about proceeding without legal representation, and that the delay was due to his efforts to try to obtain legal representation.
[52] Applicant's document filed 17 July 2023.
Sixthly, Mr Wood relied on a number of matters arising from the fact that he was self-represented. Mr Wood says that as a self‑represented litigant, he was unfamiliar with and confused about the Tribunal's procedures, and that he is not computer literate. Mr Wood contended that he 'had great difficulty in contacting the relevant court departments, and his lack of computer expertise [did not help matters] … and with having to compile documentation by myself with no legal training.'[53] At one point he referred to 'problems that I was experiencing with a possible cyber attack upon my electronic devices'.[54]
[53] Applicant's document filed 17 July 2023.
[54] Applicant's document filed 25 July 2023.

Seventhly, Mr Wood contended that the Tribunal was at fault because he had not been advised, when he lodged the 19 July correspondence that he needed to 'file an official [application for review under s 319 of the Application Act]' and if that had occurred 'I may have been able to correctly file in the required time limit'.[55]

(ii) Prospects of success

[55] Applicant's document filed 17 July 2023.

Mr Wood says that there is a very reasonable likelihood that the Tribunal would find the second respondent guilty of professional misconduct if her conduct (including the additional grievances he now advances, as well as those originally the subject of the Complaint) were to be referred to the Tribunal. He contends that he has provided evidence of his claims which should suffice to establish them, because his evidence is 'black and white', whereas he asserts that the second respondent's evidence to the LPCC was untruthful.

(iii) Prejudice and detriment to Mr Wood

Mr Wood says that he has experienced stress and anxiety in dealing with the Complaint and the present proceedings.
Mr Wood contends that he will suffer 'prejudice and detriment through natural justice being denied due to the untruths and denigration of my character by [the second respondent's] fundamental and appalling breaches of her obligations ... and of her duties in not providing documentation the court requested of her'.
As previously mentioned, in the course of his dealings with the LPCC, Mr Wood suggested that the settlement he had achieved was an unfavourable one, compared to that which he should have received, had all the relevant documentation been filed by the second respondent. He claims he was unable to secure the return from an investment in a mining venture, to which he was due, as a result of the second respondent's negligence. (I have assumed that this claimed damage or loss is an aspect of the prejudice and detriment which he claims he will suffer if his application for the extension of time is refused.)

(iv) The interests of justice

Mr Wood contends that justice requires that the second respondent be held to account for her conduct. He also relies on his claim that his physical and mental health 'have suffered greatly in [his] legal dealings to find justice' as supporting the conclusion that the interests of justice warrant the grant of an extension.[56]

(f) Assessment of the factors relevant to the grant of an extension of time, and why the extension application should be refused

(i) The length of the delay

[56] Applicant's email of 21 June 2023.

In so far as Mr Wood contends that the 19 July correspondence constituted an application for an extension of time, I reject that argument for the reasons set out above.
In so far as Mr Wood contends that there was no time limit for the filing of the Review Application, that argument must be rejected. The time limit in rule 9 of the SAT Rules clearly applied in this case. And in any event, it is apparent from the 19 July correspondence that he sent to the Tribunal, as well as the documents filed in the Review Application, that Mr Wood was well aware of the time limit for commencing the Review Application in the Tribunal.
As I have already noted, the SAT Rules require that an application for review must be filed within 28 days of notice of the decision under review being given. In this case, the Review Application was filed approximately 10 months after that time limit had expired. That amounts to a very significant delay.
The time limits for the commencement of applications in the Tribunal, in so far as they apply to review applications, reflect the fact that there is clearly a public interest in the finality and certainty of decisions which are amenable to merits review by the Tribunal. To permit the review of such decisions after a delay, much less a substantial delay, can be productive of great uncertainty, not only for decision makers (who will ordinarily be expected to be consistent in their decision making) but for third parties who may be affected by such decisions.
More generally, the public interest in the commencement and finalisation of litigation without delay recognises the fact that as time passes, memories fade, and documentary evidence may be lost, and in some cases such consequences may make it impossible for justice to be done.[57]
[57] Herron v McGregor (1986) 6 NSWLR 246, 254 – 255 (McHugh J); Hewett v Medical Board of Western Australia [2004] WASCA 170 at [106] (Miller J); Bailey at [46].
In Li and Legal Profession Complaints Committee[58] the Tribunal held that a delay of 27 days after the expiry of the 28 day time 'cannot be regarded as insignificant in the context of the 28 days allowed for commencement of proceedings'.[59]
[58] Li and Legal Profession Complaints Committee [2014] WASAT 36 (Li).
[59] Li at [35] (Deputy President Sharp).
In that context, a delay of 10 months is very significant indeed. I accept the LPCC's submission that in the absence of a good explanation, that lengthy delay weighs heavily against the grant of an extension of time.
For the avoidance of doubt, and as I have already observed, even if I had taken the view that the 19 July correspondence constituted an application for an extension of time, Mr Wood could not be taken to have progressed that application until he filed documents in support, which he did the first time in the present proceedings. In those circumstances, the delay in pursuing VR 62 of 2022 would need to be taken into account in assessing the overall delay in filing the Review Application.[60]

(iii) Reasons for the delay

[60] LPCC 's Supplementary submissions at [22].

In my view, Mr Wood's delay in bringing the Review Application was not adequately explained, and the reasons he advanced for the delay were not persuasive, for the following reasons.
First, in so far as he contends that ill health impeded his ability to file the Review Application within time, Mr Wood did not provide any medical evidence in relation to any issues concerning his physical health, or the nature of such issues, their impact on his ability to conduct litigation, or the duration of any such impact.
In so far as Mr Wood says that his mental health impeded his ability to file the Review Application within time, the evidence relied upon by Mr Wood did not substantiate his claim.
Dr S confirmed that he saw Mr Wood twice in October 2021 and diagnosed that he was suffering symptoms due to stress, and referred him to Mr J. Dr S noted that Mr Wood reported that 'the stress prevented him from working on his legal issues and as a result there were delays in him making his complaint'.[61] However, it is clear that Dr S saw Mr Wood about eight months prior to the LPCC Decision. There was nothing in Dr S's evidence to indicate that as at the date of the LPCC Decision, or thereafter, Mr Wood continued to suffer from stress related symptoms to such an extent as to impact his ability to file the Review Application within time.
[61] Report of Dr S dated 14 June 2023.
Mr J reported that he saw Mr Wood in December 2021, to deal with symptoms of stress. He saw Mr Wood again in mid-July 2022, when he reported that many of his symptoms had returned after he learned that the Complaint had been dismissed. Mr J reported that he had advised Mr Wood that 'in the interests of his own emotional and mental health he should have a break in order to take some time to disconnect from this matter before embarking upon any consideration as to whether he should pursue the matter further'.[62] However, Mr J did not evince any opinion as to how long a break was required before Mr Wood was in a position to proceed. Furthermore, Mr J reported that he had no further contact with Mr Wood until he was requested to prepare his report. There is nothing to suggest that Mr Wood required, or had, any other treatment to treat his mental health. Accordingly, Mr J's report does not explain why Mr Wood's mental ill health accounted for a delay of 10 months in the filing of the Review Application.
[62] Report of Dr J, Clinical Psychologist, dated 19 June 2023.
Furthermore, Mr Wood's claim that his mental health difficulties accounted for the delay which does not sit comfortably with the explanation he gave for the delay he foreshadowed in the 19 July correspondence. Further, in none of his correspondence to the Tribunal in July 2022 did Mr Wood refer to his health difficulties as the reason why he anticipated not being able to file his review application within the relevant time limit. Nor did Mr Wood give that explanation when he wrote to the Tribunal in April or May 2023 in relation to VR 62 of 2022.
As the second respondent submitted, in communicating with the Tribunal in April and May 2023, prior to filing the Review Application, Mr Wood did not make any reference to his ill health, and instead sought to convey that he had been actively pursuing attempts to obtain legal advice, and that he had made a conscious decision not to bring the Review Application because of a concern arising from his lack of funds to obtain a lawyer.[63]
[63] Second Respondent's submissions at [44].
This factor does not adequately explain the delay.
Secondly, in so far as Mr Wood had advised the Tribunal, in July 2022, that he had to travel to the United Kingdom to see his brother, and in so far as he continues to rely upon that matter as a reason for the delay in filing the Review Application, there was no other evidence in relation that trip which could explain, or account for, the lengthy delay in filing the Review Application. This factor does not adequately explain the delay.
Thirdly, in so far as Mr Wood relied upon his inability to fund legal representation, that does not adequately explain the lengthy delay in this case. There is no doubt that the conduct of litigation is more challenging for those in our community who cannot afford legal representation. That said, the Tribunal's processes are very informal, it provides many resources to assist self-represented litigants, and many litigants in the Tribunal conduct proceedings without the benefit of legal representation. Furthermore, Mr Wood has proved himself capable of filing proceedings in the Tribunal, and of putting to the Tribunal the arguments on which he wishes to rely, without legal representation. This factor does not adequately explain the delay.
Fourthly, in so far as Mr Wood pointed to the difficulties he had in understanding court (Tribunal) processes, and arising from his limited computer literacy, for the reasons I have set out in the preceding paragraph, those matters do not adequately explain the lengthy delay.
Fifthly, in so far as Mr Wood sought to attribute the delay to some fault on the Tribunal's part in identifying the need to file an application for an extension of time, that contention does not constitute an explanation, much less an adequate explanation, for the delay. The Tribunal clearly advised Mr Wood that the 19 July correspondence would not be received as an application for review unless he paid the filing fee. And while the Tribunal endeavours to provide as much assistance as it can to enable self-represented litigants to understand its processes, it is unable to provide them with legal advice. Furthermore, Mr Wood's claim is inconsistent with his conduct in the Tribunal. It is apparent from the 19 July correspondence that he was aware, in July 2022, that a time limit applied to commencing proceedings in the Tribunal. It was also apparent, from the Tribunal's response to his correspondence, that it had not understood his correspondence to constitute an application for an extension of time, but rather as an application for review which could not be progressed until the filing fee was paid. Yet, Mr Wood did not take any further action to respond, or to pay the fee.
Furthermore, in so far as the Mr Wood seeks to attribute his delay in filing the Review Application to fault on the part of the Tribunal, that claim is inconsistent with his other claims – such as his physical and mental ill health – as to the reasons why he was unable to file the Review Application within time.[64]

(iii) The prospects of success

[64] Second Respondent's submissions at [42].

I am unable to agree with Mr Wood's contention that his prospects of success on the Review Application are good. In my view, his prospects of success on the Review Application are poor.
In order to explain why, it is appropriate to note the Tribunal's role in an application for review under s 435 of the LP Act. As the Tribunal observed in Greenwood:[65]
[65] Greenwood and Legal Profession Complaints Committee [2010] WASAT 31.
16After the LPCC carries out an investigation of a complaint, it must make a decision of the kind described in s 424(1) of the LP Act: to dismiss the complaint under s 425, to take action under s 426 or to refer the matter to the Tribunal under s 428 of the LP Act. In the present case, the LPCC dismissed the complaint pursuant to s 425(a) of the LP Act.
17Section 435(1)(a) of the LP Act gives a person aggrieved by a decision of the LPCC to dismiss a complaint a right to apply to the Tribunal for a review of the decision. By virtue of s 17(1) of the State Administrative Tribunal Act 2004 (WA)(the SAT Act), if an enabling Act (in this case the LP Act) gives the Tribunal jurisdiction to deal with a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction. The review is to be dealt with in accordance with the enabling Act and the SAT Act, although the enabling Act may modify the operation of the SAT Act in relation to a matter in the Tribunal's review jurisdiction: s 18 of the SAT Act. Ordinarily, therefore, s 29(1) of the SAT Act will apply to a review, so that on the review the Tribunal has functions and discretions corresponding to those exercisable by the decisionmaker, that is the LPCC, in making the reviewable decision. The purpose of the review is to produce the correct and preferable decision at the time of the decision on the review: s 27(2) of the SAT Act.
18From that perspective, the role of the Tribunal in a review under s 435 of the LP Act is to determine whether the correct and preferable decision on the complaint is that there is no reasonable likelihood that the practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct (s 425(a) of the LP Act) or whether one of the alternative decisions referred to in s 424(1) is the correct and preferable decision on the complaint.
…
26The word 'likelihood' means 'the chance or fact of being likely', and 'a thing that is likely' or a 'probability' (Shorter Oxford English Dictionary, 6th ed, 2007) and the word 'likely' means 'that looks as if it would happen, be realised, or prove to be what is alleged or suggested; probable' (Shorter Oxford English Dictionary).  However, the word is qualified by the requirement that the likelihood be 'reasonable'.  The word 'reasonable' means 'not greatly less or more than might be thought likely or appropriate; of a fair, average, or considerable amount' (Shorter Oxford English Dictionary).
27The meaning of the phrase 'reasonable likelihood' in the context of s 425 of the LP Act is synonymous with the phrase 'reasonably likely'. The meaning of that phrase was discussed in Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 at [842] (Marks J, Young CJ and Teague J agreeing) in the following passage:
The relevant expression here is 'reasonably likely' which has some analogy to 'fair probability'.  It suggests the mathematical approach; the word 'reasonably' being a qualification of 'likely', alternatively, a measure in colloquial language of the likelihood.
The expression 'reasonably likely' is substantially idiomatic, its meaning not necessarily unlocked by close dissection.  In its ordinary use, it speaks of a chance of an event occurring or not occurring which is real – not fanciful or remote.  It does not refer to a chance which is more likely than not to occur, that is, one which is 'odds on' or where between nil and certainty it should be placed.  A chance which in common parlance is described as 'reasonable' is one that is 'fair', 'sufficient' or 'worth noting'.
28Those observations are equally apt to describe the meaning of 'reasonable likelihood' in s 425 of the LP Act.
29In considering whether there is a reasonable likelihood that a practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct, it is also necessary to bear in mind the Tribunal's approach to the proof of matters referred to it under s 428(1) of the LP Act. It is well recognised that the consequences for a practitioner of an adverse determination are such that clear and cogent evidence will be required before a finding of unsatisfactory professional conduct or professional misconduct is made: Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42 at [63]. That follows from the fact that although the standard of proof is on the balance of probabilities, nevertheless the Tribunal must feel an 'actual persuasion' of the occurrence or existence of a relevant fact in determining whether or not conduct of that kind has been made out: Briginshaw v Briginshaw(1938) 60 CLR 336at 361 to 362 (Dixon J).
That is the approach that the Tribunal would be required to undertake on the Review Application in this case.
Next it is appropriate to bear in mind what were the grievances which were the subject of the Complaint. These were first identified by Mr Makore in his correspondence to Mr Wood of 15 September 2020. They were the grievances which the LCO considered and determined in the LPCC Decision. The Complaint comprised:
1.On 21 July 2014 without notice, the practitioner terminated her services and did not assist you in finding a new lawyer;
2.on termination, the practitioner did not provide you with a summary of work done or what you were required to do; and
3.the practitioner's actions left you vulnerable to accepting an unfavourable settlement.'
In my view, if the Review Application were to proceed, the prospect that the Tribunal would find that there was a reasonable likelihood that the second respondent would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct is poor. It suffices to say that that is because there appears to be a strong argument that the second respondent's decision to terminate the retainer was within the scope of the Conduct Rules.
Even if the second respondent was required to give 14 days' notice of her intention to terminate the retainer, and even if she did not it is unlikely that that conduct, in the circumstances, would give rise to a reasonable likelihood of a finding of even unsatisfactory professional conduct.
Further, the second respondent responded promptly to Mr Wood's enquiries about another lawyer who he was considering engaging.
There also appears to be a strong argument that the second respondent was not, after terminating the retainer, obliged to provide Mr Wood with a summary of the work done on the file, but in any event, there does not appear to be any dispute that she provided him with the entirety of her file, and there could be no better record of the work done than what was set out on the file itself.
Finally, in circumstances where, within a very short period, Mr Wood had secured alternative legal representation, where he successfully obtained an adjournment of the next mention in the Warden's Court, where he accepts that the lawyer he engaged negotiated a settlement to which Mr Wood agreed, and where Mr Wood did not point to any evidence that the second respondent's conduct had any impact on the outcome of that settlement (apart from Mr Wood's vague claims that the second respondent failed to file unspecified documents, which he alleges left him in a weakened negotiating position) I am unable to see any basis on which the Tribunal could conclude that there was a reasonable likelihood that the second respondent would be found to have engaged in unsatisfactory professional conduct or professional misconduct on the basis her conduct left Mr Wood in a position where he was 'vulnerable to accepting an unfavourable settlement'.

As I have already observed, the main grievances that Mr Wood now appears to have in respect of the second respondent's conduct go beyond the conduct which was the subject of the Complaint. In Greenwood, the Tribunal considered whether, on a review under s 435 of the LP Act, it could consider complaints and grievances outside those which had been the subject of the decision under review. The Tribunal held that it could not. It said:
31First, the Tribunal's jurisdiction under s 435 of the LP Act is to review the decision of the LPCC to dismiss a 'complaint'. The nature of a complaint under the LP Act is described in s 409 and s 410 of the LP Act. In particular, a complaint must describe the alleged conduct the subject of the complaint: s 410(4)(c) of the LP Act. The scope of the matters which the Tribunal may review will therefore necessarily be limited by the alleged conduct complained of in a complaint.
…
35Secondly, the review by the Tribunal under s 435 of the LP Act is a review of a particular decision, namely the decision of the LPCC to dismiss a complaint.
…
37Thirdly, the additional allegations were of a very different nature to the allegations initially made … It is true that in conducting a review, the Tribunal conducts a hearing de novo and it is not confined to matters that were before the decisionmaker, or to the reasons for decision of the decisionmaker or the grounds of review: s 27(1) and s 27(2) of the SAT Act. However, those provisions do not permit the Tribunal to embark on consideration of entirely different matters from those which were the subject of the decision under review. This is made clear by s 29(9) of the SAT Act.
38Accordingly, it is not within our jurisdiction in the review to deal with the additional allegations and to determine whether there is a reasonable likelihood that [the practitioner] would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct in respect of those matters.
Consequently, even if the Review Application proceeded, it would not be open to the Tribunal to consider the additional grievances that Mr Wood now has about the conduct of the second respondent.
The prospects of success of the Review Application do not weigh in favour of the grant of an extension of time.

(iv) Prejudice and detriment to Mr Wood

The matters to which Mr Wood refers as giving rise to prejudice and detriment to him, do not weigh in favour of the grant of an extension of time, for the following reasons.
In so far as Mr Wood says that he has experienced stress and anxiety in dealing with the Complaint and the present proceedings, the fact is that litigation is stressful. There can be no doubt that litigation is a stressful experience for many litigants, especially those who are self‑represented. But the Complaint, and these proceedings, were pursued solely because Mr Wood chose to pursue them. He was not compelled to do so.
Further, in so far as Mr Wood contends that he will suffer 'prejudice and detriment through natural justice being denied due to the untruths and denigration of my character by [the second respondent's] fundamental and appalling breaches of her obligations ... and of her duties in not providing documentation the court requested of her', those matters of grievance did not form part of the Complaint, for the reasons I have already explained, and consequently could not be considered by the Tribunal on the Review Application.
Finally, Mr Wood appears to be of the view that somehow the Review Application would permit him to achieve some financial recourse against the second respondent for the settlement into which he entered to bring an end to the proceedings in the Warden's Court. As previously mentioned, in the course of his dealings with the LPCC, Mr Wood suggested that the settlement he had achieved was an unfavourable one, compared to that which he should have received, had all the relevant documentation been filed by the second respondent. He claims he was unable to secure the return from an investment in a mining venture, to which he was due, as a result of the second respondent's negligence. I have assumed that this claimed damage or loss is an element of the prejudice and detriment which he claims he will suffer if his extension of time application is refused.
If that is so, then it appears that Mr Wood is operating under a misapprehension, for at least the following reasons. No question of an award of damages or loss could arise in the Review Application. If the Review Application succeeded, and the Tribunal concluded that disciplinary action against the second respondent should be pursued, then arising from such disciplinary action, Mr Wood might be able to pursue compensation for loss suffered because of conduct which was the subject of investigation by the LPCC. However, as I have said, the prospects of success of the Review Application are poor. If Mr Wood considers that he suffered loss or damage as a result of the conduct of the second respondent, he may wish to obtain legal advice about whether any cause of action is open to him.
Finally, in so far as Mr Wood claimed that he suffered loss or damage by virtue of the conduct of the second respondent, he has not consistently maintained that position in these proceedings. In his submissions in relation to the extension application, Mr Wood noted that 'avoiding an unfavourable settlement took a very accomplished lawyer quite some time',[66] which appears to suggest that the settlement he achieved was not actually unfavourable at all.

(v) Interests of justice

[66] Applicant's document dated 16 August 2023.

In so far as Mr Wood contends that justice requires that the second respondent be held to account for her conduct, I have already set out my reasons for concluding that the prospects of success of the Review Application are poor, and for why the Review Application could not examine his other grievances against the second respondent.
In so far as Mr Wood claims that his physical and mental health 'have suffered greatly in [his] legal dealings to find justice' and that that supports the conclusion that the interests of justice warrant the grant of an extension,[67] I am unable to agree, given my assessment of the prospects of success of the Review Application.

Conclusion in relation to the extension of time application, having regard to the matters raised by Mr Wood

[67] Applicant's email of 21 June 2023.

Having regard to all of the matters relied upon by Mr Wood, I am not persuaded that an extension of time should be granted. After such a lengthy delay, which has not been adequately explained, where his prospects of success on the Review Application are poor, and where there are no other factors which weigh heavily in favour of the grant of an extension of time, the extension of time should be refused.
I have reached that conclusion without having regard to the matters raised by the second respondent, but the prejudice the second respondent claims she will suffer is such that the extension of time must be refused.

(g) The detriment and prejudice claimed by the second respondent

The second respondent filed a witness statement outlining the detriment and prejudice which she would suffer if an extension of time were granted, so that the Review Application could proceed. The second respondent contends that the detriment and prejudice she would suffer if an extension were granted could not be remedied by an order for costs or damages, other than with respect of the cost of her travelling to Perth for any hearing of the Review Application in the Tribunal.
The second respondent submitted that the delay in lodging the Review Application had to be seen in the context of a very significant delay between conduct the subject of the Complaint and the filing of the Review Application. The second respondent submitted that the pursuit of the Review Application in those circumstances 'has had an effect on the second respondent which is both detrimental to her and incapable of being remedied by any order of the Tribunal for damages of costs'.
I turn first to the second respondent's claim that she will suffer a detriment.

Detriment

The detriment the second respondent claims she will suffer is damage to her mental health. The second respondent outlined that she has experienced difficulties with her mental health for some years. She believes her overall mental health will deteriorate if an extension of time is granted. In the time available to file her witness statement, she had not been able to obtain a medical report from her treating doctor. However, the second respondent explained the basis for her claim that the grant of an extension of time would cause damage to her mental health, in the following way.
The second respondent reported that when she was advised by the LPCC that Mr Wood had lodged the Complaint, she was under significant stress as a result of her husband's serious ill health (which resulted in his subsequent death) and financial distress. Upon receiving notice that the Complaint had been made, the second respondent says that her stress was exacerbated to a very serious extent. She acknowledged that the dismissal of the Complaint meant that that stress abated, and she was extremely relieved when the time limit for filing a review application had passed, at which point she believed that the complaint matter was concluded. However, she says that upon being served with the Review Application, she 'felt punch drunk' and she says her mental health has deteriorated since that time.
The second respondent asserted that the detrimental effect on her mental health was likely to continue if the application for an extension of time was granted. The second respondent submitted that on that basis alone the application for an extension of time should be dismissed.
While there is no doubt that for conscientious practitioners, being the subject of investigation by the LPCC is a stressful experience, as is the prospect that disciplinary proceedings may be pursued in the Tribunal.
However, in the absence of any medical evidence at all to substantiate the claim that the grant of an extension of time, and the pursuit of the Review Application, would have a detrimental impact on the second respondent's mental health, over and above the stress likely to be experienced by any legal practitioner in such circumstances, I am unable to accept that this claim constitutes a detriment for the purposes of s 92(4) of the SAT Act.

Prejudice

The second respondent also says that if an extension is granted, she will suffer prejudice to her ability to respond to the Complaint, arising from the fact that Mr Wood delayed in making the Complaint for almost six years after the events giving rise to it. The second respondent says that that delay was compounded by a further delay from the LPCC Decision until she was notified of the Review Application. The second respondent said that during that period, she did not have any reason to believe that a complaint was in contemplation. I infer that the second respondent therefore did not, at the time, make records of her recollections of dealing with Mr Wood, nor did she record in more detail the reasons for her termination of the retainer, and which might, had she done so, be of assistance in mounting her defence to the Complaint.
The second respondent says that as a result of that delay, the grant of an extension would cause her to suffer prejudice in the following ways.
First, the second respondent says that responding to the Complaint will be more difficult for her because she now resides in the United Kingdom, and would probably need to return to Australia to appear at a substantive hearing of the Tribunal. While the second respondent acknowledges that enquiries can be made, and instructions given to lawyers, while she is in the United Kingdom, she submits that doing so will certainly be made more difficult from the United Kingdom.
Mr Wood submitted that in so far as the second respondent claims she would experience in defending the proceedings from overseas, this would present no difficulty as the Tribunal encourages attendance by remote participation. I agree. Given the Tribunal's informal processes, readily accessible means of electronic communication (with her lawyers and with the Tribunal) and the fact that the Tribunal can receive evidence and submissions by video link, I do not consider that the fact that she is in the United Kingdom would result in some prejudice to the second respondent.
Secondly, the second respondent pointed to the deterioration in the reliability of witnesses' memories, not least of all her own, given the period of over 8 years since the conduct the subject of the Complaint. The second respondent says that the recollection of all witnesses will have been dimmed through the passage of time, and that the reliability of any witnesses' memories will have deteriorated, given the passage of time.
The second respondent says that her own recollection had been adversely affected by her ill health and the various stressors, identified in her witness statement, that occurred in the years following the termination of the retainer.
In relation to the second respondent's reliance on difficulties arising from the deterioration of witnesses' memories as a result of the passage of time, Mr Wood contends that 'all the evidence to be relied upon is documented. It does not require any other person's memory.'[68]
[68] Applicant's document dated 16 August 2023.
I am unable to agree with Mr Wood that the only evidence that would be relevant to the Review Application would be documentary evidence. It is true that in most cases, the evidence considered by the Tribunal on an application for a review under s 435 of the LP Act is documentary evidence. But that is because documentary evidence exists, and suffices, to enable the Tribunal to reach the correct and preferable decision. That may not be the case here, especially if the second respondent no longer has a complete documentary record. It appears that she may not have a copy of her file (having given the file to Mr Wood following termination of her retainer). As to that matter, I accept that the second respondent would suffer some prejudice if she had to rely solely on her own recollection of events, together with such documents as were produced by Mr Wood, on the Review Application. That prejudice to the second respondent may result in unfairness to her, if the Review Application were to proceed.
Further, Mr Wood clearly does not accept the second respondent's reliance on her ill health as the reason (or at least one of the reasons) why she terminated the retainer. That being the case, her own evidence as to that matter would be important, as I discuss below.
Secondly, in relation to the question of whether her health was an explanation for her termination of the retainer, the second respondent stated that the medical practice at which she was a patient in 2014 (when she was diagnosed with the health condition that required her to terminate the retainer) has closed down and she cannot recall the name of her treating practitioner. She believes she will have significant difficulties in obtaining medical evidence in relation to her health at the time of the termination of the retainer.
In so far as this claim of prejudice was concerned, Mr Wood submitted that the second respondent should have documents substantiating that claim in her possession already, and that her medical records should otherwise be easily recoverable.
I do not accept Mr Wood's submission. If the second respondent held documentary evidence as to her health condition in 2014, there is no doubt that she would have produced that to the LPCC or referred to its existence in her evidence in these proceedings.
Evidence to confirm the second respondent's ill-health at the time of termination of the retainer would need to be obtained from other sources. No doubt the second respondent could make enquiries to see if any medical records were still available in relation to the diagnosis of her illness, but after such a long period of time, and in view of the fact that the medical practice has closed down, there could no guarantee that the pursuit of that evidence would be fruitful.
The second respondent also says that she is also prejudiced by the delay because of the death of her husband who, absent delay, would have been able to give relevant evidence as to her state of health at the time of the termination of the retainer.
I am satisfied that the second respondent would be prejudiced by the delay, were an extension of time to bring the Review Application to be granted, because of the difficulty she would have in relying on her own recollections as to what occurred, leading up to the termination of the retainer, and in providing evidence as to the role her ill health played in her termination of the retainer. Those matters are at the heart of the Review Application.
I am also satisfied that that is a form of prejudice that cannot be remedied by an order for costs or damages. As the LP Act does not confer on the Tribunal the power to make an order for compensation of that kind in favour of the second respondent in the present circumstances, the question is whether any award that the Tribunal might make under s 87(2), as read with s 87(3), of the SAT Act, could compensate the second respondent for the prejudice or detriment that she will suffer if an extension of time is granted. I am satisfied that it could not. In my view, the prejudice that the second respondent will suffer if the extension of time is granted, namely the evidentiary difficulties she will face in responding to the Review Application, could not be remedied by an order for damages.
Even had I concluded that the factors relied upon by Mr Wood warranted the grant of an extension of time, the prejudice to the second respondent which cannot be remedied by an award of damages, means that the extension of time sought by Mr Wood must be refused, having regard to s 92(4) of the SAT Act.
Mr Wood's application for an extension of time should therefore be dismissed, and consequently the Review Application itself must be dismissed.

(h) The orders which should be made

The orders I propose to make are as follows:
1.Pursuant to s 36(5) of the State Administrative Tribunal Act 2004 (WA), the name of the First Respondent is amended to be the 'Law Complaints Officer as delegate of the Legal Profession Complaints Committee.'
2.The applicant's application for an extension of time in which to commence the review application is dismissed.
3.The review application is dismissed.
I will hear from the parties as to the form of those orders, and as to whether any other orders are sought.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
AB
Associate to Hon Justice Pritchard
26 APRIL 2024