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[2012] WASCA 247
General information, not legal advice.
Court of Appeal (WA)
2012-11-30
Newnes JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE -v- GANDINI [2012] WASCA 247
BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Citation : LEGAL PROFESSION COMPLAINTS COMMITTEE and GANDINI [2011] WASAT 86 (S)
Practice and procedure - Respondent found guilty of professional misconduct - Disqualified from obtaining practising certificate for 18 months - Respondent ceased practice before disqualification - Cross-appeal against disqualification - Application by respondent for stay - Relevant principles - Stay refused
Respondent : Abigail Rogers Barristers & Solicitors
Chief Executive Officer, Department for Child Protection v C [2007] WASCA 172
Chief Executive Officer, Department for Child Protection v 'S' [2007] WASCA 230
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Legal Profession Complaints Committee and Gandini [2011] WASAT 86
Legal Profession Complaints Committee and Gandini [2011] WASAT 86 (S)
Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202
1 NEWNES JA: This is an application by the cross-appellant (Mr Gandini) for a stay of an order of the State Administrative Tribunal (the Tribunal) of 24 November 2011 that he not be granted a practising certificate for a period of 18 months commencing on 24 November 2011. The application is opposed by the appellant/respondent to the cross-appeal, the Legal Profession Complaints Committee (the LPCC).
2 On 15 June 2010, the LPCC brought complaints of professional misconduct against Mr Gandini in relation to certain conduct which, it alleged, had occurred between about July 2004 and December 2004. The complaints arose out of a defamation action in which Mr Gandini was acting for the defendant. In substance, the LPCC alleged that Mr Gandini:
3 The complaints were heard by the Tribunal over three days in March 2011. I was told by senior counsel for the LPCC that the long delay in the matter coming before the Tribunal was caused by the need to await the resolution of civil proceedings in relation to the matter.
4 On 8 June 2011, the Tribunal found Mr Gandini guilty of unsatisfactory professional conduct on the first complaint and professional misconduct in respect of the other two complaints: Legal Profession Complaints Committee and Gandini [2011] WASAT 86.
5 Put shortly, the Tribunal's findings were as follows.
6 The plaintiff in the defamation action applied to strike out certain paragraphs in the re-amended defence filed by Mr Gandini's client. Counsel briefed in the matter for the defendant was not available on the date fixed for the hearing of the strike out application. Mr Gandini wrote to the court seeking to have the hearing adjourned to another date. He was informed that the hearing would not be adjourned. On the hearing of the application, Mr Gandini appeared before the master on behalf of the defendant and again sought an adjournment. It was refused. Mr Gandini then told the master that he was not in a position to argue the application and he took no further part in the hearing. The impugned paragraphs were struck out.
7 The Tribunal found Mr Gandini guilty of unsatisfactory professional conduct in that, having previously been told that the hearing would not be adjourned, he had not attempted to make any provision in the event that a further application for an adjournment was refused and the hearing proceeded. The Tribunal pointed out that Mr Gandini could have briefed other counsel or he could have had written submissions prepared by his client's counsel and argued the matter himself [65].
8 The second complaint related to an interlocutory hearing before the master in respect of an application to extend the time in which Mr Gandini's client could apply for leave to appeal against the orders made by the master on the strike out application. On 10 November 2004, the master granted an extension of time until 12 November 2004. Mr Gandini did not file the application for leave to appeal until 15 November 2004.
9 On 17 November 2004, Mr Gandini appeared before the master and told him there would be no appearance for the plaintiffs. Mr Gandini told the master that the application for leave to appeal had been filed on 15 November 2004 and, in response to a question from the master, said he understood that that was not a problem for the plaintiffs and that 'a short time was allowed to extend time'. Mr Gandini agreed that the master should amend the order to substitute '15 November 2004' for '12 November 2004'.
10 The Tribunal did not accept Mr Gandini's explanation of his conduct at that hearing and found that he was guilty of professional misconduct in that he had misled the master into believing:
11 On 15 November 2004, the plaintiffs' solicitors wrote to Mr Gandini requesting copies of the documents which they 'assume[d]' had been filed in the action on 12 November 2004. The Tribunal found that in his reply, dated 17 November 2004, Mr Gandini did not dispel their assumption as to the filing date and failed to inform them that he had appeared before the master on 17 November 2004 and obtained a further extension to 15 November 2004.
12 Subsequently, the plaintiffs' solicitors discovered that the application for leave to appeal had not been filed until 15 November 2004 and that a further extension of time had been granted on 17 November 2004. They wrote to Mr Gandini seeking an explanation. In his reply, dated 2 December 2004, Mr Gandini said, among other things, that he had attended before the master on 17 November 2004 'purely to finalise the administrative aspects of the orders made on 10 November 2004.'
13 The Tribunal did not accept Mr Gandini's explanations of his responses in the two letters and concluded that he was guilty of professional misconduct in each case in that he deliberately intended to mislead the plaintiffs' solicitors.
14 Having made its findings, the Tribunal directed that each party file and serve written submissions on penalty and that the question of penalty be dealt with on the papers. Following receipt of those submissions, on 24 November 2011 the Tribunal published its decision on penalty: Legal Profession Complaints Committee and Gandini [2011] WASAT 86 (S).
15 The Tribunal dealt with the three complaints together for the purpose of penalty. It concluded that the imposition of a fine, even a heavy one, would be inadequate but that a report to the Supreme Court was not justified in light of Mr Gandini's record and his relative inexperience at the relevant time. It found that a period of 'suspension' of 18 months was an appropriate penalty for the three complaints. It ordered (relevantly) that Mr Gandini is not to be granted a local practising certificate for a period of 18 months, to commence from the date of the order (24 November 2011). The Tribunal rejected a submission by Mr Gandini that any period of suspension should date from 1 July 2011 when he ceased to practise.
16 I should mention that Mr Gandini did not renew his practising certificate when it fell due on 1 July 2011. That is why the order of the Tribunal was not in fact by way of a suspension of his right to practice but instead precluded him from obtaining a practising certificate for the period of 18 months.
17 On 9 June 2011, Mr Gandini filed an appeal notice in respect of the decision of the Tribunal of 8 June 2011 that he was guilty of unsatisfactory professional conduct and professional misconduct. That appeal, CACV 59 of 2011, is yet to be heard. The parties have been advised that it will be heard with this appeal.
18 This appeal against the penalty imposed by the Tribunal on 24 November 2011 was commenced by the LPCC on 13 December 2011. In substance, the LPCC contends that the Tribunal erred in making the orders it did and seeks an order that a report be transmitted to the Supreme Court with a recommendation that Mr Gandini be struck off the role of practitioners.
19 Mr Gandini has cross-appealed against the order of the Tribunal that he not be granted a practising certificate for a period of 18 months. In the cross-appeal, Mr Gandini seeks, in place of the orders of the Tribunal, orders that, in respect of the first complaint, he be fined $1,500 and, in respect of the second and third complaints, that he not be eligible to be granted a practising certificate for a total period of 4 months from 1 July 2011.
20 Mr Gandini's application for a stay of the Tribunal's order, together with a supporting affidavit, was filed on 16 March 2012. It has proceeded in a desultory manner since that time. The application was initially listed for hearing on 23 March 2012. On 21 March 2012, a consent notice was filed to vacate that hearing and relist the application on a date not before 24 April 2012. It was then listed on 8 May 2012. On 27 April 2012, a consent notice was filed to vacate that hearing and relist the application on a date to be fixed. It was then listed on 26 June 2012. On 13 June 2012, a consent notice was filed to vacate that hearing and adjourn the application to the hearing of the appeal.
21 It seems that Mr Gandini subsequently became concerned that because this appeal was to be listed with CACV 59 of 2012, it would not be heard before February 2013 and that by the time a decision was delivered the period within which he was unable to obtain a practising certificate, if it had not elapsed, would be on the point of doing so. On 17 September 2012, Mr Gandini's solicitor wrote to the court asking that the application be listed for hearing. The LPCC opposed that course, insisting that it should now be heard with the appeal. Ultimately it was listed for hearing on 26 October 2012.
22 Under s 106(1) of the State Administrative Tribunals Act 2004 (WA), the court may stay the operation of a decision of the Tribunal pending the determination of an application for leave to appeal from the decision and of any appeal. The purpose of a stay is to maintain the status quo which existed before the Tribunal made the orders under appeal: Chief Executive Officer, Department for Child Protection v C [2007] WASCA 172 [13].
23 The principles summarised by Murray and Parker JJ in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9] have generally been applied when considering applications for a stay under s 106: Chief Executive Officer, Department for Child Protection v 'C' [14]; Chief Executive Officer, Department for Child Protection v 'S' [2007] WASCA 230 [6]. It is unnecessary to repeat those.
24 Where the decision in issue concerns the right or freedom of a person to practise or work, or to fulfil a position, pending a decision or appeal which calls that right or freedom into question, the public interest, including any risk to the safety of the public or any section of it, may also be a material factor (and, depending on the circumstances, a very significant factor) in determining whether to grant a stay: Chief Executive Officer, Department for Child Protection v 'C' [15]; Chief Executive Officer, Department for Child Protection v 'S' [6].
25 In his (very brief) affidavit of 16 March 2012, Mr Gandini said he envisaged that this appeal would not be heard until at least late July 2012, with a decision being handed down not earlier than August or September 2012. He said that, if his cross-appeal was successful he would by that time have served most, if not all, of the period of his (revised) suspension (that is, four months from 24 November 2011 - rather than from 1 July 2011) so that, unless a stay was granted, his cross-appeal would have been rendered nugatory.
26 In his further affidavit filed on 25 October 2012, Mr Gandini says that the various adjournments of the stay application came about at his initiative because of problems he had in connection with legal representation. He says that each time the application was listed for hearing he was 'trying to finalise a barrister to appear to argue the matter', and when the matter was set down for 26 July 2012 his solicitor had ceased to practice as he had been appointed a magistrate.
27 Mr Gandini goes on in the affidavit to say that he had originally thought that this appeal would proceed before CACV 59 of 2011 (the appeal against the findings of unsatisfactory professional conduct and professional misconduct) and had that been permitted this appeal could have been heard by September or October 2012, rendering the stay application unnecessary. As that has not been permitted by the court, the appeals are unlikely to be heard before February or March 2013. (In fact, the two appeals have since been set down for hearing on 4 February 2013.)
28 I have mentioned that Mr Gandini ceased practice on 1 July 2011, some four months before the Tribunal imposed the penalty disqualifying him from obtaining a practising certificate. In those circumstances, it might have been expected that Mr Gandini's affidavits in support of the application would explain how he came to cease practice and contain evidence of the detriment he would suffer if he is unable to obtain a practising certificate before the appeal is heard. In fact, there is nothing in his affidavits which touches upon either. There is no explanation by Mr Gandini as to why he chose to cease practice and his affidavits are notably silent as to his circumstances and livelihood since 1 July 2011. He does not depose to an intention to apply immediately for a practising certificate if the stay were granted.
29 I was asked by senior counsel for Mr Gandini to infer that Mr Gandini did not renew his practising certificate because he saw that in light of the findings of the Tribunal he would be suspended from practice for a period of time. I would not draw that inference. It would be no more than speculation. There are many possible reasons why Mr Gandini did not renew his practising certificate. And as senior counsel for the LPPC observed, such an inference is difficult to reconcile with Mr Gandini's primary submission to the Tribunal that a fine would be an appropriate disposition of the complaints (S [23]). All that can be said is that by the time the penalty was imposed Mr Gandini had already, of his own volition, ceased practice.
30 Over the period of some 15 months since his unexplained decision to give up practice, Mr Gandini has presumably been, and remains, otherwise gainfully employed. Mr Gandini does not say that he has some need or desire to resume legal practice and the delay which has occurred in the initiation and prosecution of this application would suggest otherwise. The application for a stay was not made until almost four months after the penalty was imposed and more than five months after the period of suspension which Mr Gandini says should have been imposed would have expired. The explanation Mr Gandini has given for the subsequent adjournments of it, over a period of more than seven months, is not compelling. It is difficult to conceive that if reasonable endeavours had been made counsel could not have been found to argue the matter on one of the previous occasions on which it has been listed for hearing. The consequence is that the greater part of the 18 month period of disqualification has elapsed during those periods of inactivity by Mr Gandini and the appeal is now set down for hearing in a little over three months, into which interval, I might observe, falls the Christmas period.
31 Finally, it is a relevant factor that the professional misconduct as found by the Tribunal was of a serious nature, involving misleading the court and another practitioner. As this court observed in Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 [61], a lawyer's duty to the court includes candour, honesty and fairness, duties which are quintessential to the lawyer's role as an officer of the court and on which the court and the public rely, no matter how new or inexperienced the practitioner.
32 In my view, the interests of justice do not require that the order of the Tribunal be stayed. The orders of the Tribunal are based on findings of serious professional misconduct. The greater part of the period of disqualification has elapsed without any apparent sense of urgency on Mr Gandini's part to pursue a stay of the Tribunal's order, and Mr Gandini has not seen fit to put before the court anything to establish that he will be substantially prejudiced if the orders remain undisturbed until the substantive appeals have been determined.
Chief Executive Officer, Department for Child Protection
C
(2003) 28 WAR 308