State Administrative Tribunal (WA)|2008-10-28|Before: Mr P, Judge J

CHIN and WEST AUSTRALIAN LEGAL PRACTICE BOARD [2008] WASAT 252 (28 October 2008)

CITATION : CHIN and WEST AUSTRALIAN LEGAL PRACTICE BOARD [2008] WASAT 252

Legal practitioners Condition on practicing certificate Condition requiring supervision Level of appreciation of obligations in relation to monies held on behalf of clients Standard of expression appropriate for legal practitioners Allegations of misconduct by other practitioners without proper foundation Understanding of conflicts of interest Respect for judicial officers Degree of insight or understanding in respect of conduct

Rules of the Supreme Court 1971 (WA), O 8 r 2, O 8 r 7

1 On May 2008, the Western Australian Legal Practice Board imposed conditions on the practice certificate of Mr Ni Kok Chin. The conditions, in effect, required that Mr Chin practice only as an employed solicitor and that his work be closely supervised. Mr Chin sought a review of that decision on the basis that the Board did not have the jurisdiction to impose the condition in the absence of some finding of incapacity or unfitness, or some disciplinary proceedings being successful against the practitioner. Alternatively, Mr Chin argued that the conditions were not necessary having regard to the matters upon which the Board had relied.

2 The Tribunal concluded that the Board had acted in accordance with its powers under section 40 of the Legal Practice Act. The Tribunal examined the various matters raised by the Board, and Mr Chin's explanations for that conduct. The Tribunal concluded that the Board acted appropriately, having regard to the protection of the public and the maintenance of professional standards, by imposing the conditions on Mr Chin's practice certificate. Accordingly the application was dismissed.

3 The issue which falls for determination in these proceedings is whether it is appropriate for conditions to be placed on Mr Ni Kok Chin's practice certificate pursuant to s 40(3) of the Legal Practice Act 2003 (WA) (LP Act). The conditions proposed would require that he practice only as an employed solicitor and do so in a legal firm approved by the Legal Practice Board (Board); that he be supervised in the same manner as a restricted practitioner and that he not be involved in the maintenance of a trust account.

4 The background to this application is as follows. The applicant was admitted as a legal practitioner in Western Australia on 19 December 2003. He does not currently hold a practice certificate.

5 The applicant was the subject of an investigation by the Legal Practitioners Complaints Committee (LPCC) in early to mid 2006 (2006 Investigation). On 19 July 2006, the Board, by its Professional Affairs Committee, resolved to impose a condition upon the applicant's practice certificate pursuant to s 40(3) of the LP Act, that he practice only as an employed solicitor and do so in a legal firm approved by the respondent. The applicant appealed the decision of the Professional Affairs Committee to the State Administrative Tribunal (Tribunal).

6 On 12 September 2006, the Tribunal (Deputy President Judge Eckert, Member Ms Dean, Member Mr Carey) (the Tribunal's 2006 decision) dismissed the appeal and relevantly ordered that:

(a) The Following condition be imposed on Mr Chin's practice certificate:

'Mr Chin is to practice only as an employed solicitor in a legal firm approved by the Board with supervision arrangements to be approved by the Board on an ongoing basis. Mr Chin's employer is not to be a sole practitioner or relative and must have experience and expertise in Mr Chin's practice areas';

(b) The Legal Practice Board is authorised under section 156(1)(c) of the Legal Practice Act 2003 (LP Act) to appoint a supervising solicitor to Mr Chin's practice.

7 The applicant appealed the decision of the Tribunal to the Court of Appeal. On 25 September 2007, the Board conceded the appeal on the ground that there had not been proper delegation of authority to the relevant committee. There was no determination of the merits of the other grounds of appeal.

8 By letter dated 25 September 2007 to the Board, the applicant made submissions for the purposes of renewing his practice certificate and to obtain a 'certificate of fitness' for the purposes of obtaining a practice certificate from the Law Society of New South Wales. On 14 November 2007, the Board determined to hold an inquiry pursuant to s 41(1)(b) of the LP Act as to whether and what conditions should be imposed on the practice certificate of the applicant.

9 On 3 April 2008, the Board conducted the inquiry into the applicant pursuant to s 41(1)(b) of the LP Act. At the inquiry, Mr Chin was represented by counsel. Prior to the hearing, counsel for Mr Chin had written to the Board indicating that Mr Chin would be happy to have conditions placed upon the scope of his practice to the effect that:

(i) he can accept instructions in relation to civil litigation but only as a solicitor in such litigation and limited to the jurisdiction of the Magistrates Court and such that he not be permitted to appear as an advocate at any trial until further certified by the Board. This would allow chambers advocacy but not otherwise;

(ii) he can accept instructions to act as an agent to effect the transfer of real property pursuant to the Transfer of Land Act 1893 (WA) within the State of Western Australia; and

(iii) he can accept instructions in relation to criminal law but only as a solicitor and he be limited to appearances on applications for bail or remands in the Magistrates Court, Federal Court, District Court or Supreme Court and that he not appear as an advocate at any trial in any of those courts until further certified by the Board.

10 In addition, Mr Chin, through his counsel, indicated that he was prepared to undertake any course recommended by the Board for his further continuing legal education, and that he was prepared to accept further inspections of his legal practice by the Board's nominee whenever required. He sought to operate a trust account in compliance with the relevant statutory rules but indicated he was prepared to submit to more frequent inspection of his trust records by the Board's nominee than would be the case for other practitioners if the Board so desired.

11 On 22 April 2008, Mr Colvin SC, on behalf of the members of the Board who conducted the inquiry, wrote to the Board enclosing their report as to the outcome of their inquiry and recommendations (2008 Report). A special meeting of the Full Board was convened on 2 May 2008 to consider the 2008 Report. The Board resolved to adopt the recommendations in the 2008 Report and resolved to attach the following conditions on any practice certificate issued to the applicant:

(a) the Applicant is to practice only as an employed solicitor in the legal practice under the supervision of a named practitioner or practitioners each of whom must have been approved by the Board, not to be relative of the Applicant and have entered into an undertaking to the Board in accordance with these conditions;

(b) the undertaking must be in a form approved by the Board and state that the practitioner will ensure that the Applicant is supervised in the same manner as a restricted practitioner and will not be permitted by the practitioner to send any correspondence without the approval of the practitioner or to sign any correspondence or sign any court document;

(c) the Applicant must arrange for a report to be provided to the Board at 6 monthly intervals by each supervising practitioner describing the nature of the practice experience of the Applicant in the preceding 6 months;

(d) the Applicant must not send any correspondence in the course of legal practice without the approval of a supervising practitioner or sign any correspondence or sign any court document; and

(e) the Applicant must not be involved in the maintenance of a trust account or receive trust money.

12 On 28 May 2008, Mr Chin sought a review of the Board's decision. In specifying the decision which he wanted the State Administrative Tribunal to make, Mr Chin's application reads:

To review the decision of the West Australian Legal Practice Board (the respondent) such that the applicant be issued with either:

(a) a limited practice certificate as requested by counsel for the applicant barrister RR Stevenson in his letter dated 28 March 2008 to the respondent on behalf of the applicant; or

(b) a full practice certificate; and

(c) a certificate of fitness to be issued to the applicant for the purpose of his seeking to practice as barrister and solicitor in the State of New South Wales.

(d) just compensation for closing down the applicant's practice illegally and arbitrarily as from 12.9.2006 until today without legal authority of SAT to do so under s 39, 40, 156, 185 and 187 of the LP Act.

13 At the commencement of the hearing, Mr Chin confirmed that he was pursuing a claim for compensation from the Board as a result of its conduct. The Tribunal pointed out to Mr Chin that it had no jurisdiction to entertain a claim for compensation, and the matter was not further pursued.

14 In reaching its decision to impose conditions on Mr Chin's practice certificate, the Board adopted the conclusions contained in the 2008 Report. Those conclusions were that the applicant:

(a) does not have a sufficient appreciation or insight of his obligations concerning dealings with money held on behalf of a client (trust money) (see paragraphs 28-29 of the Report);

(b) consistently adopts a standard of expression that reflects a poor understanding of the standards to be observed by practitioners in their communications with the courts, including:

(i) rude, inflammatory, unfounded and inappropriate comments in court documents;

(ii) direct communication with courts in relation to matters in which he has been involved

(c) makes serious allegations of misconduct directed to other practitioners without clear and logical foundation (see paragraphs 33-39 of the Report);

(d) is deficient in his understanding of his obligation to avoid conflicts of interests between different clients in criminal proceedings (see paragraphs 40-41 of the Report);

(e) lacks proper understanding of the respect to be afforded to judicial officers and allows his own prejudices to explain an outcome in a proceedings (see paragraphs 42-25 of the Report);

(f) has a lack of insight or understanding in respect of which his past conduct has been inappropriate (see paragraph 46 of the Report)l

(g) generally requires supervision in all areas of his practice (see paragraphs 47-48 of the Report);

such that he requires supervision as an employed practitioner and should not practice as a sole practitioner unsupervised.

15 It will be necessary to review the basis upon which those conclusions were reached, and Mr Chin's response to each of them which he provided during the course of the hearing.

16 Apart from his responses to the Board's conclusions, Mr Chin raised other issues in the various documents he lodged in support of his application and in his oral submissions. The issues were not precisely expressed, and in some cases did not bear upon the task confronting the Tribunal.

17 Apart from Mr Chin's justification of the conduct which gave rise to the Board's concerns, the principal issue raised by him in his Statement of Issues, Facts and Contentions concerned the relationship of s 39 and s 40 of the LP Act. As we understand the contention, it was that the capacity of the Board to impose conditions on a practice certificate under s 40 can only arise where either the LPCC has made a finding of unsatisfactory conduct as a result of disciplinary procedures provided for in Pt 12 of the LP Act, or as a result of a conclusion that a practitioner is unfit, incapable or insolvent so that s 39 applies.

18 The way the practitioner expressed that issue (and its consequences) in his statement of issues, facts and contentions is as follows:

Are the circumstances of the Applicant such that he should only be subject to a condition on his practice certificate PROVIDED the Respondent do exercise its discretionary powers pursuant to subs. 40(3) of the Legal Practice Act, 2003 (the Act) and only do so with considerable fetters by its having mandatory regard to the following:

Both ss. 39 and 40 of the Act (both sections) must be juridically and judicially interpreted in such a manner that their separate meanings are consistent with each other (consistency of constructions); 2. The consistency of constructions are to be in accord with the legislative intentions of Parliament with regard to both sections in that the Applicant should only be subject to the disciplinary procedures as enacted in Part 12 of the Act if s.40(3) were to be used against him, and not otherwise (discipline of the Applicant);

The sole criterion for the discipline of the Applicant can only be predicated by a finding by an independent statutory Legal Practitioners Complaints Committee (the LPCC) that the Applicant is guilty of unsatisfactory conduct as defined by s.3 of the Act (criterion);

S.40 of the Act may only be invoked in accordance with the criterion (and not independently of s.39) by the Respondent in accordance with the criterion (and not independently of s.39) by the Respondent and must not be invoked for the purpose of achieving a hidden agenda on a false ground of a value judgment like that of the Applicant being considered 'deficient in his professional knowledge'; that hidden agenda being evident from the explicit discriminatory practice of the Respondent to exclude him from practice on his own account when he is already qualified under s.33 of the Act (hidden agenda); 2. Part 11 of the Act (Appointment of Supervisors and Managers) may not be legally invoked by the Respondent to achieve its hidden agenda for the purpose of redressing its own wrongs; in order to give those wrongs the appearance of legality after it had successfully but illegally intruded into the affairs of the Applicant through a blatant disregard of the criterion. 3. The Respondent had thereby illegally caused the Applicant to close down his practice with consequent damages to the Applicant and his clients. The Applicant should therefore be compensated for the loss of his income for the period of the illegal closure of his practice under s. 18 of the Act caused by the non-performance of the Respondent's function under the Act, in good faith. 4. The Respondent and the LPCC respectively are to observe the tenets of impartiality, independence and integrity such that the former can then become an effective regulator of the legal profession in Western Australia without being visibly seen to be tainted with gross bias. This is to ensure that the public interests that ought to be upheld by the Respondent equals the public interest that the Applicant ought not to be abused by the wrongful invocation of s.40 with a complete disregard for the criterion.

19 We note in passing that Mr Chin's expression of what we understand to be an argument as to the proper construction of the Act is laced with references to matters such as 'a hidden agenda', 'a false ground of a value judgment', 'explicit discriminatory practice', attempts to give 'wrongs the appearance of legality', an absence of good faith on the part of the Board, and 'gross bias'. Subsequently, in the document, Mr Chin asserts malicious conduct by a practitioner who made a complaint against him, 'surreptitious' activities by a member of the Professional Affairs Committee of the Tribunal, and inappropriate influence on the Professional Affairs Committee by a complaining practitioner. He refers to the previous decision of this Tribunal on 12 September 2006 in the following way:

The SAT through Judge Eckert therefore compromised the tenets of integrity, impartiality and independence of the respondent by enabling it to blow 'hot' and 'cold' in one breath; ie, by giving the applicant his unrestricted status and by withdrawing it thereafter for the purpose of the unjustified control.

20 We do not accept Mr Chin's submissions as to the proper construction of s 40 of the LP Act. In our view, the power of the Board to impose conditions does not first require a suspicion or belief that a practitioner is incapable or unfit within the meaning of s 39 of the LP Act to be formed. Section 39(3) of the LP Act provides that where the Board suspects or believes that a practitioner is incapable or unfit, and the public interest or protection of the integrity of the profession requires refusal, suspension or cancellation of a practice certificate, the Board may apply to the State Administrative Tribunal for a hearing and determination under s 188 of the LP Act. It is the Tribunal which then has then power under s 188(9) of the LP Act to refuse, suspend, cancel, or impose conditions on, the practice certificate. Section 40 of the LP Act has no work to do in relation to the procedures available under s 39 of the LP Act.

21 Similarly, the penalty which may be imposed in relation to disciplinary proceedings under Pt 12 of the LP Act are found within that Part. Section 177 of the LP Act specifies the summary jurisdiction of the Complaints Committee and s 185, s 186 and s 187 of the LP Act provide the penalties which can be imposed by this Tribunal on findings of unsatisfactory conduct. The power to impose conditions on a practice certificate are available to the Tribunal under s 187 of the LP Act.

22 Section 40 of the LP Act constitutes a separate power of the Board, which has been exercised in this case, to issue a practice certificate subject to conditions. The Board's capacity to conduct an enquiry, as it did in this case, as to whether, and what, conditions should be imposed on a practice certificate under s 40 of the LP Act is specifically provided for in s 41 of the LP Act. The power is exercisable independently of any disciplinary proceedings under Pt 12, or the formulation of a belief or suspicion of incapability or unfitness under s 39 of the LP Act.

23 A second issue raised by Mr Chin is the need to act on facts rather than 'value judgments'. During oral submissions, Mr Chin placed considerable emphasis on an article by Leonard Peikoff downloaded from the Internet (http://www.peikoff.com/essays/fact_value.htm) entitled 'Fact and Value'. He read portions of the article during his oral submissions. The point underlying Mr Chin's reliance on the article was not altogether clear. We understand, however, that Mr Chin was complaining that the Board had formed opinions, or value judgments, about him on which it acted. We took him to be cautioning the Tribunal against reliance upon value judgments rather than factual findings. The Tribunal reassured Mr Chin that it would rely upon the evidentiary materials before it, and reach conclusions based on facts established by those materials. It is, of course, the function of the Tribunal to form a judgment, based on the materials before it, as to whether proper regulation of the profession requires some restriction of Mr Chin's practice. Whether we have correctly identified the objective of Mr Chin's reliance upon the Peikoff article is not clear, but otherwise we find the article of no particular assistance to the function with which we are confronted.

24 A further matter addressed by Mr Chin in his oral submissions was a suggestion that the Board's conduct was motivated by racial prejudice. There is no apparent foundation for that serious allegation. In his witness statement, Mr Chin draws an analogy of his position with 'the reality of the tremendous difficulty currently experienced by the 457 visa skilled migrant workers from China and other Asian countries'.

25 As the Tribunal observed to Mr Chin at the commencement of the hearings, these proceedings are by way of a hearing de novo. Whether or not any untoward conduct had occurred in the original decision-making process, the task of this Tribunal is to remake the decision in light of all materials put before it, rather than examine the conduct of the original decision-maker. The allegations were, therefore, irrelevant for present purposes. Having said that, we emphasise that we do not consider that there is any foundation revealed by the materials we have reviewed for any allegation of discriminatory behaviour on the part of the Board, or any of its members.

26 It is thus necessary to turn to an examination of the particular concerns which the Board asserts justify the imposition of conditions on Mr Chin's practice certificate.

27 Following its investigation into the practitioner in early to mid 2006, the Complaints Committee wrote to the Board reporting on the outcome of its investigation. It reported, as was the case, that Mr Chin did not operate a trust account. The Committee expressed concern that Mr Chin appears to render invoices, and accept payment, in advance for work which is not yet completed, and that he generated 'backdated invoices' which he described as 'mere formalities'.

28 The particular matter giving rise to the Complaints Committee's concern related to a file numbered 2 of 2005, for a corporate client, the principal of which was a man we will refer to as MTC. The matter concerned a debt collection. The Complaints Committee review of the file showed that Mr Chin wrote to the client setting out the terms of his appointment, including a requirement for an immediate payment of the deposit towards legal fees. It is not clear whether the deposit was ever paid. Proceedings were commenced in the Magistrates Court and a default judgment obtained. Subsequently, the debtor agreed to pay the judgment debt by instalments. Mr Chin was a party to the agreement 'as agent and solicitor for MTC'.

29 By the agreement, the debtor agreed to pay the practitioner a total of $9418.94 as follows:

The defendants are to pay to the plaintiffs upon the following terms:

(a) a down payment of $2000 payable immediately in a cheque made out in the name of Nicholas N Chin on the 11th day of August 2005.

(b) seven instalment sums of $1000 each in cheques made out in the name of Nicholas N Chin: the first of such payments is to be made on the first day of October 2005 and on the first day of each subsequent month thereafter until the last payment on the first day of April 2006.

(c) the last and final instalment shall be made in a cheque in the name of Nicholas N Chin in the sum of $418.94 and shall be payable on the first day of May 2006.

30 The investigation report discloses a number of inconsistencies in relation to amounts of monies claimed or payable by the debtor, and in relation to charges and rates of charges by the practitioner. However, those were not matters of specific allegation against the practitioner in these proceedings. According to the investigation report, the file contained two uncashed cheques dated May and June 2005, one payable to the Magistrates Court and the other to the practitioner. The inspection was carried out sometime after February 2006, so it would appear that the cheques were many months old.

31 The costs arrangement referred to in the letter of 11 August 2005, and the agreement with the debtor, both involved the receipt of trust monies.

32 When the practitioner was called upon to respond to the investigation report, he said in relation to his trust account:

3.1 I do not operate a trust account because I do not hold any monies in trust for my client. There is a common law rule that a lawyer is allowed to hold a deposit for work to be done. But this rule may not apply to Western Australia. As a consequence, I make it a point that I will not ask for payment for work that is not done first in order to avoid any difficulties.

3.2 If my client were to provide me with any disbursements to be held in trust for him/her I would like my client to give me her/his instructions in writing that she does not want those monies to be put into a trust account. I know there are onerous duties involved in operating a trust account. If I were to have a client who is entrusting me with large sums of monies to hold in trust for my client, then I would not hesitate operating a trust account.

3.3 If the exigencies of the case do not warrant my opening up a trust account, there is no need for me to operate a trust account when it is going to be empty anyway. I do not disobey the Professional Affairs Committee to immediately implement a trust account because there were no trust monies currently before me.

33 Mr Chin's response to this issue in his Statement of Issues, Facts and Contentions was essentially to the same effect.

34 In his explanation of his position at the hearing, Mr Chin said that he was well aware of the provisions of s 137 of the LP Act and r 54 of the Legal Practice Board Rules 2004 (WA) (LPB Rules). Section 137(2) entitles a legal practitioner to deal with trust monies as directed by the person for whose benefit the trust monies are received, rather than depositing the funds into a trust account. Rule 54 requires that a direction under s 137(2) must not be acted upon unless it is in writing and signed by the client. Mr Chin said that he did not want to be required to comply with the onerous requirements of the Act in relation to trust accounts. Instead, he said, he maintained a separate account in his own name which he used (presumably at the direction of the client) whenever he received clients' money which needed to be dealt with by him. He considered that arrangement to be satisfactory 'because it is not a trust account opened in accordance with the law'. He said that the second account is 'just a convenience'.

35 While we accept that Mr Chin is aware of the provisions of s 137 of the LP Act and r 54 of the LPB Rules, we are not satisfied that he understands the proper application of those provisions. His explanation as to his arrangements does not address the apparent way in which he handled funds in relation to his client MTC. It can be noted that, in the matter concerning MTC, Mr Chin did not obtain a written direction from his client in relation to the manner in which he was dealing with the funds. The operation of his 'second account' effectively to facilitate payments which would normally be conducted through a trust account appears to amount effectively to the operation of a trust account while avoiding the audit and other regulatory requirements of a trust account.

36 In our view, Mr Chin's response to the concerns in relation to the handling of money for his client MTC does demonstrate an insufficient appreciation of his obligations concerning dealings with money held on behalf of clients.

37 Mr Chin was at pains to point out that he had not been found to have misappropriated any funds. That is certainly the case. There is nothing in the Board's conclusions, nor in the conclusions we have reached in relation to this issue, which suggests any element of dishonesty or misappropriation of funds. The absence of such suggestion does not, however, lead to the conclusion that Mr Chin does not require supervision in relation to trust monies given his views as to the operation of s 137(2) of the LP Act.

38 The second conclusion upon which the Board relied was that Mr Chin consistently adopts a standard of expression which does not reflect the standards expected of legal practitioners. In particular, the Board referred to expressions which it described as rude, inflammatory, unfounded or inappropriate in court documents, and to inappropriate direct communication with courts.

39 By way of example of these concerns, the Board relied upon a couple of examples. The first was a letter dated 11 June 2007 directed to the Registrar of the Fremantle Magistrate's Court. The letter concerned an action in which a solicitor, Mr Thies, was pursuing Mr Chin's son, and Mr Chin, for legal costs claimed to be due to Mr Thies by reason of his acting for Mr Chin's son in certain litigation. The litigation apparently concerned a claim by Mr Chin's son for misrepresentations allegedly made to him in connection with his purchase of a lunch bar. Mr Thies lodged a caveat over the son's property to secure the costs said to be due. The caveat had apparently been the subject of proceedings before Templeman J of the Supreme Court earlier in 2007. Mr Thies' conduct was also the subject of a complaint of unsatisfactory conduct made by Mr Chin to the LPCC in April 2007.

40 The letter of 11 June 2007 asserted that a deed of settlement entered into between Mr Thies, Mr Chin and his son was vitiated by duress. The basis for that claim appears to be an allegation that Mr Thies made 'extortionate demands' in order to have Mr Thies remove the caveat from the son's land. The letter asserted that Mr Thies:

should have realized that he had misled the First and Second Defendants by way of intimidating them and extorting from them the sum of $11,500.00 contrary to the provisions of s 397 and 399 of the Criminal Code, 1913 (WA) as amended, in that he could not have legally escalated his original frivolous claim of $3,000.00 to the extortionate sum of $24,685.61 by incorporating an item which is largely made up of his own yetto mature solicitor profit costs which he is not entitled to claim as a solicitorlitigant in person when he knew or ought to have known that the law in Western Australia only entitles him to reimbursement costs and not profit costs. As a solicitor he should be aware that such intimidatory and extorting conduct on his part would cause his victims to suffer irreparable damages.

41 The letter was copied to several other persons. They included the Principal Registrar of the Supreme Court, and Justice Templeman. At the inquiry by the Board, Mr Chin was asked why he copied that letter to the Registrar and the Judge. In essence, his response was that he wished to keep the Principal Registrar and Templeman J informed of developments in the case. It was put to Mr Chin that the appropriate way to bring matters to the attention of the court would be to file an affidavit to be placed on the court file. The following exchange between Counsel assisting the Board and Mr Chin then occurred:

Isn't that the appropriate way to do it?---Yes, but I cannot file any document on behalf of my son because I am not practicing. My son cannot sign it himself because he is unwell. Therefore the only way I can get it done is to have - to inform the court contemporaneously of things that is happening so that in the future, when an affidavit gets filed into the court, there is - no one can say, 'This never happened.'

I see?---The reason for writing to all these people is to keep everybody informed so that if anybody denies that this has never happened, there you have got contemporaneous records to all these people.

Mr Chin, that is just - do you accept that that is not an appropriate way to advise a court of a matter such as that. To simply write a letter to the court?---I will not - - -

Do you know that, or not?---It is inappropriate in some way because I am seeking the courts attention to a matter and prejudicing the opinion of the court, the future judgment of the court therefore I should restrain from doing that.

Mr Chin, I don't want to be unfair to you because I thought you said a moment ago that it was appropriate for you to write in this form?---I was telling you why I thought it was appropriate at the time.

Do you consider it today?---You know in my professional understanding is that I should not have done that. If I was not emotional enough and suffering from a depressive illness and because it was my son. I could not do anything to protect my son. Under the circumstances, that is the only thing I can do.

42 We agree with the Board that Mr Chin's conduct in directing correspondence to judicial officers, and the explanation he proffered for doing so, demonstrates a poor understanding of the appropriate method of communication between a legal practitioner and a Court. Our concern in relation to that conduct is heightened by the nature of the allegations of criminal conduct, the foundation for which appears to be that Mr Chin considered the solicitor concerned to be making unjustified demands before agreeing to removal of the caveat. We are not satisfied that there was any proper foundation for that serious allegation. It is of further concern that no copy of Mr Chin's communication with the court was sent to Mr Thies.

43 A second example of the Board's concern was a letter dated 11 January 2007 from Mr Chin to the Chief Justice. That letter concerned a costs order that was made by Master Sanderson in favour of the LPCC as a result of Mr Chin's misconceived application to the Master for leave to appeal against the decision of the State Administrative Tribunal on 12 September 2006. The application should have been made to the Court of Appeal. The Master dismissed the application for want of jurisdiction, and ordered Mr Chin to pay costs. Just what Mr Chin hoped to achieve by the letter to the Chief Justice is not clear. In it, he complains that he is afraid to commence an appeal in the Court of Appeals for fear of a further costs order but, continues: 'I wish that this Honourable Court would allow me to submit my Grounds of Appeal and My Submission to both the Court and to the Respondent, which will show this Court of Appeal that I do have valid grounds for Appealing'.

44 Unsurprisingly, the Chief Justice replied advising that the only mechanism for ventilation of the merits of the case is by way of appeal and it is not appropriate otherwise to comment upon the issues raised.

45 Mr Chin again wrote to the Chief Justice on 23 January 2007. The letter mentions that the Master had ordered that certain affidavits lodged by Mr Chin should be removed from the file, on the basis of their scandalous contents. That ruling had caused him to become 'disillusioned at the failings of our judicial system'. The letter continues

This had resulted in what I had considered to be the injudicious and improper costs order made against me and the improper expunging of the impugned affidavits ...

The injustice then meted out to me by our judicial system was further exacerbated by the respondent's intention to execute the unjust costs order of learned Master ... under circumstances which the respondent knew that it was unjust for it to do so.

...

This pattern of conduct of the LPCC would suggest to the ordinary observer that the LPCC has indeed a hidden agenda or is working at the behest of some powerful person at the respondent's board ... these events speak volumes for the fact that the impugned decision against me is tainted by gross bias ab initio and should therefore be invalidated from the outset. My accuser has been allowed to become the decision maker against me. Any further prosecution of me by the LPCC for the imagined wrongs is therefore res judicata as the matter had already been litigated at the State Administrative Tribunal. In the case of widows or widowers or disabled persons like my former clients, the judicial system should be proactive in delivering justice to these neglected members of the public.

46 Again, the purpose of the letter to the Chief Justice is not evident on its face. By way of explanation, Mr Chin said at the hearing that, at the time of writing to the Chief Justice, he was suffering depression because of Mr Thies' conduct and because of the costs order, which Mr Chin was not able to meet, having been made against him. He thought that the Chief Justice had responsibility to see that the system of justice is working properly, and hence he was drawing the Chief Justice's attention to the injustices which Mr Chin considered that he was suffering.

47 Again, we share the Board's concern that correspondence of this nature demonstrates a lack of understanding of the court system which falls well below the standard expected of legal practitioners. Although Mr Chin indicated that he now understands that direct communication with judicial officers is inappropriate, the examples relied upon by the Board demonstrate that it is reasonable to require some level of supervision of Mr Chin's practice before being satisfied that he has demonstrated a proper understanding of appropriate conduct. We are somewhat fortified in that view by the manner in which Mr Chin framed his submissions and written evidence before this Tribunal. We have highlighted above (in [45]) some of the expressions used in Mr Chin's documents. Those examples serve to affirm that the history of proceedings between Mr Chin and the Board have not served to curb Mr Chin's tendencies to use inappropriate language and expressions in the conduct of proceedings.

Allegations of misconduct directed to other practitioners

48 The third area of concern identified by the Board related to Mr Chin's tendency to make serious allegations of misconduct directed to other practitioners without a clear and logical foundation.

49 The Board illustrated this concern by reference to two particular matters. The first concerned allegations made against another practitioner, Mr David Taylor. Mr Taylor had acted for a plaintiff in respect to two matters against a client, Ms Hall, for whom Mr Chin acted. In respect of one of those matters, the claim by Spunter Pty Ltd, an action by the Supreme Court, Mr Chin filed a Chamber summons in July 2005, on which he appeared on 15 August 2005 and 19 December 2005. He also instructed a barrister, Mr A Camp, to appear for his client at a case management hearing on 13 March 2006. On 24 March 2006, a registrar of the Court wrote to Mr Chin pointing out that no appearance had been filed on behalf of his client despite the appearances in chambers by, or on the instructions of, Mr Chin.

50 On 28 March 2006, Mr Chin replied to the Registrar advising that he had filed a notice of appointment of solicitors and a memorandum of appearance, but that he no longer had any further instructions from the defendant. It would appear that on 2 May 2006 Mr Chin filed a 'Notice of Ceasing to Act'. By reason of O 8 r 2 of the Rules of the Supreme Court 1971, that notice was ineffective, and it was necessary for Mr Chin to make application under O 8 r 7 for an order declaring that he had ceased to be the solicitor acting for the defendant.

51 Mr Chin wrote to the Case Management Registrar of the Supreme Court on 2 May 2006 setting out that he no longer acted for the defendant as she had not paid his fees. The Registrar's associate responded the following day, pointing out that Mr Chin remained on the record and advising him of the need to apply for removal as the solicitor on the record.

52 On 4 May, Mr Chin wrote again to the Registrar. In that letter, he took issue with the contents of the Registrar's letter, and asserted that he proposed simply to wait for the client to file a notice of change of solicitor, although he doubted that would happen.

53 On 16 May 2006, the Registrar's associate wrote to Mr Chin confirming that, as of that date, he remained on the record as acting for the defendant. Mr Chin responded disagreeing that he remained on the record.

54 On 12 June 2006, case management directions were made by Registrar Powell. Directions in relation to pleadings and discovery were given. Mr Chin did not appear at the status conference, and an order was made that costs, fixed at $300, be paid by Mr Chin personally unless, prior to 3 July 2006, an order was made on Mr Chin's application for variation of the costs order.

55 No application to vary the costs order was made by Mr Chin. Proceedings were subsequently brought in the Magistrate's Court against him for recovery of the $300 the subject of the order. Mr Chin opposed those proceedings. In his statement of defence, Mr Chin accused the claimant's lawyer, Mr Taylor, of misleading Registrar Powell by not telling the Registrar that Mr Chin was not the lawyer representing the defendant.

56 We note in passing that amongst the documents relating to this matter attached to Mr Chin's affidavit filed in his appeal against the Tribunal's 2006 decision, are three facsimile letters sent by Mr Chin to the Chief Magistrate dated 21, 25 and 27 September, concerning aspects of different Magistrates' conduct in relation to that claim.

57 Mr Taylor made a complaint to the LPCC against Mr Chin. Mr Taylor's complaint appears to be that Mr Chin had made the serious accusation that Mr Taylor had misled the court. Mr Chin responded to that complaint by letter dated 1 September 2006. He asserted that it was reasonable for him to infer that Mr Taylor did intentionally mislead the Registrar by reason of the history of correspondence concerning Mr Chin's status as the solicitor on the record in relation to the proceedings. In his response, he also accused Mr Taylor of 'underhanded tactics'.

58 In his oral evidence, Mr Chin sought to justify his allegation against Mr Taylor on the basis that Mr Taylor knew that Mr Chin did not consider he was acting for Ms Hall at the time the costs order was made by the Registrar.

59 A number of observations can be made about the events set out above. The first is that, even to the point of this hearing before the Tribunal, Mr Chin does not seem to appreciate the effect of having filed a memorandum of appearance on behalf of his client, and the requirements of O 8 in relation to removing himself from the obligations as solicitor on the record. Although not specifically relied upon by the Board, it is a situation which tends to affirm the need for supervision of Mr Chin's practice.

60 The second observation that can be made is that the proceedings in the Magistrate's Court concerning the costs order gave rise to further inappropriate communications by Mr Chin to the Chief Magistrate.

61 The third observation that can be made is that Mr Chin did not have a reasonable foundation for his allegation that Mr Taylor had misled the Court. The correspondence between Mr Chin and the Court makes it clear that the Court was, quite correctly, of the view that Mr Chin continued to bear the obligations of a solicitor on the record up until he either obtained an order that he had ceased to act, or a notice of change of solicitor was filed. Neither of those events had occurred when the Registrar made the order of 12 June 2006. Mr Chin's notice of ceasing to act, and his correspondence concerning the fact that he had no instructions from the defendant, was all available to the Registrar. There is no basis for the assertion that Mr Taylor said anything which might have been misleading. It is entirely reasonable to assume that the Registrar was fully aware of Mr Chin's belief that he was no longer acting when he made the order. Mr Chin had been put on very clear notice from the court that he was considered to be the solicitor on the record. That fact is sufficient to support the Registrar's order. Mr Chin being a legal practitioner, his mistaken view as to the position provides no reasonable excuse, in all the circumstances, for his failure to attend the status conference.

62 An allegation that a legal practitioner has misled a court is a very serious allegation. Nothing in Mr Chin's explanation of that allegation, or the materials we have read, suggest any proper foundation for the making of the allegation.

63 A second illustration of Mr Chin's propensity to make unfounded allegations against other practitioners, upon which the Board relies, is found in an affidavit by Mr Chin dated 14 November 2006 filed in relation to his application for leave to appeal against the Tribunal's 2006 decision. At paragraphs 20 to 22 of that affidavit, Mr Chin accuses Mr Zelestis QC, a member of the Legal Practice Board of 'gross bias'. The bias is said to arise by reason of Mr Zelestis' position as a Chairperson of the LPCC, whilst at the same time being a member of the Board.

64 From a review of the minutes of the various meetings concerning Mr Chin, it is clear that Mr Zelestis was not present at the meeting of the Professional Affairs Committee on 19 July 2006, when the initial decision to impose a condition upon Mr Chin's practice certificate was made. It was that decision in respect of which Mr Chin accused Mr Zelestis of 'gross bias'. The allegation would not have been justified even if Mr Zelestis had attended that meeting. It was certainly completely unjustified in circumstances where he did not participate in the decision concerned.

65 Those two specific matters need to be seen in a context where the voluminous papers which were before the Board, and before this Tribunal, contain repeated allegations of inappropriate conduct by legal practitioners, magistrates and judges. Mr Chin justifies his allegations on the basis that he is 'speaking the truth'. The examples demonstrate that his allegations are not founded in truth. Mr Chin's conduct in this regard is entirely inconsistent with fulfilment of the proper responsibilities imposed upon, and standards expected of, legal practitioners. His failure to appreciate that fact demonstrates his need for supervision.

66 The Board's concern as to Mr Chin's appreciation of the necessity to avoid conflict of interests arises from its examination of files concerning three men arrested with a fourth man, while travelling in a vehicle. A quantity of cannabis was found in the vehicle. All four men denied knowledge of it. Two of the men, Mr Tylor, and Mr Fleay, were charged with possession of cannabis with intent to supply. A third, Mr Powell, was charged with possession of a small amount of cannabis found in his pocket.

67 At the time of the arrests, Mr Powell was already one of Mr Chin's clients. All three came to Mr Chin. He opened a file in relation to each. In relation to Mr Powell, Mr Chin corresponded with the Court of Petty Sessions in relation to Mr Powell's charges, provided advice to Mr Powell, and apparently made a number of appearances of his behalf.

68 In relation to Mr Fleay, Mr Chin wrote to the Court concerning hearing dates, corresponded with the Police in relation to a plea of guilty by Mr Tylor, and appeared in court on his behalf. In relation to Mr Tylor, Mr Chin's file contains a memorandum of costs, correspondence to Mr Fleay and Mr Tylor and the Police, various documents relating to the complaints and various exhibits.

69 In his response to the Complaints Committee dated 12 June 2006, concerning these clients, Mr Chin asserted that he told all three accused that each needed a separate lawyer, 'but all three of them were insistent that I do some legal research for them as the factual circumstances affecting their respective cases are the same'. He said that, from the outset, he advised each of them to plead guilty at the earliest opportunity. He said that he chose to act only for Mr Tylor. He said that Mr Fleay was getting his own lawyer. He attended Court for both Mr Fleay and Mr Tylor and wrote a submission for them.

70 The materials located on the files maintained by Mr Chin in relation to all three accused suggest that, while it might have been contemplated that Mr Fleay would obtain separate legal advice, Mr Chin took initial instructions from all three and continued to provide legal services to them notwithstanding their obvious potential conflict. Mr Chin's tendency to justify his conduct provides a basis for concern as to his full appreciation of the requirements confronting a practitioner faced with a conflict of interest. That concern justifies a conclusion that supervision of Mr Chin's practice is appropriate.

71 The Board's concern as to Mr Chin's understanding of the respect to be afforded to judicial officers stemmed initially from his response of 12 June 2006 to the report from the 2006 Investigation. In the context of responding to a concern expressed in the report as to certain comments made in a judgment by her Honour Jenkins J in an appeal against a criminal conviction where Mr Chin had represented the applicant, Mr Chin said:

It is my personal belief that (the client) would have won his appeal on the following grounds:

(a) If the appeal judge hearing his case had been a man instead of a woman, Mr Powell would have gained (sic) more sympathy from a man who would understand a man's problem instead of a woman who is simply not equipped to understand a man's problem.

72 When Mr Chin was questioned about that matter at the Board's inquiry on 3 April 2008, he acknowledged that the comment should not have been made, but said:

At the moment I said it, it just came out naturally from me. There was no intention to insult anyone but it was never directed to Jenkins J. I want to apologise to her if it was ever directed to her. She never knew that I insulted her.

73 He later said that although he still believed the comment to be true, he should not have made it. He repeated the substance of those remarks in evidence in these proceedings saying that his comment was justified because 'only a man can understand the problems of a man'.

74 The comment obviously demonstrates an extraordinary and illogical prejudice. Supervision of Mr Chin's practice may well be quite unlikely to eradicate that prejudice. It may, however, go some way towards suppressing the expression of that prejudice, at least in Mr Chin's written communications.

75 There are other examples of inappropriate references to judicial officers or their decisions. At [18] above, we referred to Mr Chin's assertion in his statement of issues, facts and contentions that Judge Eckert 'compromised the tenets of integrity, impartiality and independence of the Board'. In the same document, he refers to the costs order made against him by Master Sanderson as 'intimidatory' and as reflecting 'the barest truth'. In his letter to the Chief Justice dated 23 January 2007, he described the costs order made by Master Sanderson as 'injudicious and improper'.

76 In his oral evidence to this Tribunal, Mr Chin repeated that he considered that Master Sanderson made the order in an intimidatory manner. He said that the order was intimidatory because it had the tendancy to prevent him proceeding with his appeal. He said that he always respects judicial officers, but feels constrained to 'speak the truth'.

77 The use of expressions of the type employed by Mr Chin is obviously inappropriate. Expressions used are offensive, and tend to bring the administration of law into disrepute. The beliefs apparently underlying the use of offensive language are themselves a matter of concern in the context of considering Mr Chin's fitness to practice unsupervised. The expressions, and the context in which they are used, suggests a serious lack of appreciation and understanding of the system of administration of justice in which legal practitioners play a critical role.

78 In our view, the offensive references to judicial officers, and the attitude underlying those references, provides strong support for the need for supervision of Mr Chin's practice.

Insight or understanding, and the need for supervision

79 The final two matters upon which the Board relied in imposing the conditions on Mr Chin's practice certificate was his lack of insight and understanding of the inappropriateness of his past conduct, and the general requirement for supervision of all areas of his practice. These conclusions reached by the Board were based upon the various matters identified in relation to the more specific concerns discussed above.

80 Mr Chin called evidence at the hearing for this Tribunal from a Mr Alessandro Bertini. Mr Bertini, who gave evidence with the assistance of an interpreter, has been receiving assistance from Mr Chin, apparently on a voluntary basis, in relation to a dispute that Mr Bertini is having in the Magistrate's Court against a solicitor who previously acted for Mr Bertini. Mr Bertini's witness statement is brief, but asserts that the justice system does not work because the Legal Practice Board through the LPCC does not uphold the public interest in maintaining its role as the regulator of the legal profession in Western Australia. He complains of the 'injustice' said to have been done to Mr Chin, and says that he is willing to come as a witness 'to show to this Tribunal that there are injustices that need to be corrected'. Attached to his witness statement are a number of documents relating to his dispute with the solicitor, many of which have been prepared by Mr Chin. Those documents make a number of complaints and allegations against the solicitor in dispute with Mr Bertini.

81 When challenged about the relevance of Mr Bertini's witness statement, Mr Chin argued that it was relevant to demonstrate that the Legal Practice Board is not concerned about members of the public and had not protected Mr Bertini in his dispute with his lawyer. On the other hand, he contended that the assistance he provided to Mr Bertini demonstrated that he is capable of assisting people in need to obtain justice. The Board was not opposed to the Tribunal hearing Mr Bertini's evidence, and accordingly his evidence was accepted.

82 Mr Bertini indicated that Mr Chin had helped him fight his case when he was on the point of giving up by reason of depression concerning the matters of dispute. He said that he had made seven applications to court, all of which had been unsuccessful. The materials produced by Mr Bertini are replete with excessive language, with references to extortion and tricks by lawyers. There are criticisms of a Magistrate acting 'arbitrarily and without justification'. The papers tend to support, rather than undermine, the concerns which we have identified above about Mr Chin's mode of practice. The fact that Mr Chin sought to rely upon those materials demonstrates, in our view, his lack of insight or understanding about the concerns which the Board had, and we share, as to his capacity to practice unsupervised.

83 Mr Chin rightly observes that there has been no complaint against him of unsatisfactory professional conduct determined by the Tribunal. He also submits that the particular criticisms of his conduct, taken separately, do not warrant the serious consequences of imposing a condition on his practice certificate. He contends, and we accept, that since he has had the condition placed on his practice certificate he has been unable to obtain employment as a solicitor. We also accept that the mere fact of the condition is likely to make it very difficult for him to obtain employment as a solicitor. It follows that the personal consequences for Mr Chin of having the highly restrictive condition placed on his practice certificate are very serious. Not surprisingly, he sees the condition as a punishment for conduct which, in his view, would not normally lead to suspension or disqualification from practice which, he argues, is the effective consequence of the conditions.

84 The object of the exercise of regulatory powers by the Board, and by the Tribunal standing in its shoes, is the protection of the public and the maintenance of the standards expected of the profession. The object of the exercise of regulatory powers is not punishment. Where the public interest and the maintenance of appropriate professional standards require a particular course of action, that requirement must outweigh the personal interests of the practitioner concerned. That is the case here.

85 The various matters referred to above, demonstrate, in our view clearly, that Mr Chin does not have a proper appreciation of, and does not observe, the standards of conduct expected of legal practitioners. We do not consider that Mr Chin should be permitted to practice unsupervised. The conditions imposed by the Board were, in our view, entirely appropriate. It follows that Mr Chin's application for review of those conditions should be dismissed.

The decision of the Legal Practice Board made on 2 May 2008 to impose conditions upon Mr Chin's annual practice certificate is confirmed.
The application for review of the Board's decision of 2 May 2008 is dismissed.

I certify that this and the preceding [85] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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Practice Board Rules 2004

CHIN and WEST AUSTRALIAN LEGAL PRACTICE BOARD [2008] WASAT 252 (28 October 2008)

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CHIN and WEST AUSTRALIAN LEGAL PRACTICE BOARD [2008] WASAT 252 (28 October 2008)

CHIN and WEST AUSTRALIAN LEGAL PRACTICE BOARD [2008] WASAT 252 (28 October 2008)

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