Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Citation : NEIL and LEGAL PROFESSION COMPLAINTS COMMITTEE [2010] WASAT 39

Practice and procedure - Application for an order that the parties mediate - Appeal against decision on question of jurisdiction - Order to mediate would be futile - Application dismissed

Courts and judges - Oral application to judge to disqualify himself - Apprehension of bias - Application dismissed

First Respondent : Legal Profession Complaints Committee

Australian Education Union v Lawler [2008] FCAFC 135; (2008) 169 FCR 327

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Neil and Legal Profession Complaints Committee [2010] WASAT 39

Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466

R v Moore [1985] HCA 80; (1976) 11 ALR 449

Western Areas Exploration Pty Ltd v Streeter [No 2] [2009] WASCA 15

1 PULLIN JA: The appellant has applied for an order to compel the respondents to participate in a mediation with a view to settling the appeal. The statutory framework empowering the Supreme Court to order mediation is described in Western Areas Exploration Pty Ltd v Streeter [No 2] [2009] WASCA 15. Whether the Court of Appeal has such power was not argued, but assuming it does have such power via the legislation referred to in Streeter's case, the court has a discretion about whether to make the order.

2 The background is as follows. The appellant has filed an appeal notice seeking leave to appeal against the decision of the President of the State Administrative Tribunal (SAT), refusing the appellant leave to review a decision of the Legal Profession Complaints Committee.

3 The complaint which the appellant had made to the committee was that the second respondent, a Victorian solicitor, had prepared an affidavit in Victoria on behalf of her client which she knew, or ought to have known, contained false information. The complaint was dismissed by the committee summarily on the basis that pursuant to s 407(1) of the Legal Profession Act 2008 (WA) it did not have jurisdiction over the allegations because the conduct took place in Victoria. The committee also found that the complaint was unreasonable and vexatious.

4 Section 435 of the Act gave the appellant the right to apply for a review of the committee's decision but leave was required before that review could be entertained. Full details of the complaint made by the appellant, the committee's decision and the respondent's reasons are to be found in Neil and Legal Profession Complaints Committee [2010] WASAT 39.

5 Since the appeal has been instituted, the appellant has requested the committee to agree to mediation in relation to the appeal. At an appointment before Registrar Bush on 20 July 2010, the registrar advised that it was her view that the decision of the tribunal was not amenable to mediation in circumstances in which the President held that the first respondent did not have jurisdiction to entertain his complaint against the second respondent. The first respondent agreed.

6 Not deterred by this, the appellant continued to ask the first respondent to agree to mediation in subsequent correspondence. The first respondent has not agreed and the appellant has now filed an application seeking an order for mediation.

7 The situation is that SAT has determined that the first respondent had no jurisdiction to deal with the appellant's complaint. In Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466, the High Court made it clear that parties who agree a proposition of law cannot bind a court. Parties cannot by consent confer jurisdiction on a tribunal if none exists: see R v Moore [1985] HCA 80; (1976) 11 ALR 449 and Australian Education Union v Lawler [2008] FCAFC 135; (2008) 169 FCR 327 at [185].

8 Even if there were a mediation and the committee decided to concede that the decision of the tribunal was wrong and that the committee's own decision was wrong on the subject of jurisdiction, the decision of the tribunal would not automatically be set aside. It will be necessary for this court to determine whether such a concession was properly made. As a result, there would have to be a hearing even if the parties were agreed after a mediation was held.

9 In any event, the first respondent has made it plain that it does not agree with the appellant's contention that the committee had jurisdiction. It agrees with the President's decision. In those circumstances, there is no point in requiring the parties to mediate and the application is dismissed.

10 NEWNES JA: I agree with the reasons given by Pullin JA.

11 At the outset of the hearing of this application, the appellant made an oral application, foreshadowed in a letter to the court the previous day, that I disqualify myself on the ground of apprehended bias. I refused to do so for reasons which were to be given later. The following are my reasons.

12 The background to the application is set out in the reasons of Pullin JA. The complaint which the appellant sought to make against the second respondent related to what he alleges were deliberately misleading statements made in documents filed by the second respondent on behalf of Reward Property Group Pty Ltd in proceedings against the appellant in the Federal Magistrates Court in Perth. At the time, the appellant was the plaintiff in proceedings in the general division of this court, in CIV 1157 of 2005, against (among others) Reward Property Group Pty Ltd. In CIV 1157, the appellant sought various forms of relief against each of the defendants under s 233 of the Corporations Act 2001 (Cth) and damages.

13 While the appellant made it clear that the basis of the application that I disqualify myself lay in my involvement in CIV 1157 in 2006 as a master in the general division of this court, the appellant's submissions as to how that led to a reasonable apprehension of bias were by no means

clear. It is therefore appropriate to describe in a little detail my involvement in that action, as referred to by the appellant.

14 The matter came before me in chambers on 20 February 2006 in relation to a notice of motion filed by the appellant in CIV 1157 in which he sought, in substance, to prevent the defendants from hindering his participation in directors' meetings or general meetings of the corporate defendants. On that occasion the appellant, who had just assumed conduct of the matter on his own behalf from his former solicitors, said that an earlier order of the court that the defendants enable him to have access to certain documents had not been complied with but that he had made an arrangement with the Perth agent for the defendants' solicitors to try to get access to the documents. At the appellant's request, I adjourned the matter to 20 March 2006.

15 In fact it came back before me on 22 March 2006, when I made orders for the appellant to file and serve any further affidavit in respect of the notice of motion by 26 April 2006 and the defendants to file and serve any affidavit in response by 10 May 2006. A transcript of the hearing cannot be found but the appellant does not suggest that either of those orders was controversial.

16 On 16 May 2006, the matter came before Master Sanderson who extended the time for the filing of the appellant's affidavit to 28 July 2006 and the time for the filing of the defendants' affidavits to 18 August 2006. After 16 May 2006, no further step appears to have been taken by the appellant to pursue the action.

17 Some time shortly before 20 July 2007, I referred the file in CIV 1157 to a registrar who, on 20 July 2007, issued a summons to the parties under O 29A r 17 of the Rules of the Supreme Court 1971 (WA) to show cause why the action should not be entered in the Inactive Cases List. Pursuant to that notice, the parties appeared before a registrar on 9 August 2007 and at that hearing an order was made that the action be placed on the Inactive Cases List. Under O 29A, an action which is on the Inactive Cases List for six continuous months is taken to have been dismissed for want of prosecution.

18 Although the appellant had some difficulty in articulating precisely what it was that would give rise to a reasonable apprehension of bias on my part, he ultimately put it on the basis that it arose from my referral of the file to the registrar. He submitted that that disclosed pre-judgment of the issues in CIV 1157.

19 The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to determine: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 492. The plurality in that case pointed out (493) that in applying that test two things need to be remembered: the observer is taken to be reasonable, and the person being observed is a professional judge whose training, tradition and oath or affirmation requires the judge to discard the irrelevant, the immaterial and the prejudicial.

20 I am satisfied that there is nothing which is capable of giving rise to a reasonable apprehension of bias on my part. Quite apart from the fact that the issues in CIV 1157 were entirely separate from the issues which arise on the appeal, there is nothing at all which might suggest (and nor was it the case) that I had formed any views about the issues, or any of the parties, in CIV 1157.