Court of Appeal (WA)|2009-07-07|Before: Pullin JA

CHIN -v- LEGAL PRACTICE BOARD WESTERN AUSTRALIA [2009] WASCA 117 (7 July 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : CHIN -v- LEGAL PRACTICE BOARD WESTERN AUSTRALIA [2009] WASCA 117

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

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

Appeal - Leave to appeal - Whether reasonable prospects of success

Appeal - Noncompliance with r 32(4) Supreme Court (Court of Appeal) Rules 2005 (WA) - Grounds prolix - Grounds containing offensive and vexatious material

Administrative law - State Administrative Tribunal review of Western Australian Legal Practice Board decision - Contention that Board's decision was reached due to Board acting for improper purposes and in bad faith

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

1 JUDGMENT OF THE COURT: On 26 June 2009, the court refused leave to appeal and dismissed the appeal. These are the court's reasons for doing so.

2 In May 2008 the Western Australian Legal Practice Board acting pursuant to s 40(3) of the Legal Practice Act 2003 (WA) imposed conditions on the practice certificate of the appellant. The conditions in effect, required that the appellant practice only as an employed solicitor and that his work be closely supervised.

3 On 28 May 2008, the appellant sought a review of that decision before the State Administrative Tribunal on the basis that the Board did not have jurisdiction to impose the conditions in the absence of some finding of incapacity or unfitness or some disciplinary proceedings being successful against the practitioner. Alternatively he argued the conditions were not necessary having regard to the matters upon which the board had relied. The tribunal conducted a de novo hearing and confirmed the decision of the Legal Practice Board to impose conditions and dismissed the application for review. The appellant appealed against that decision.

4 The appeal was brought under s 105 of the State Administrative Tribunal Act 2004 (WA). Section 105(1) provides that the appeal may only be brought if this court gives leave to appeal. Section 105(2) provides that the appeal can only be brought on a question of law.

5 Section 105(13) provides that:

Despite subsection (2), if the Tribunal's decision -

(a) is made ... in a proceeding for the review of a decision made under a relevant Act; and

(b) has the effect of depriving a person of the person's capacity to lawfully pursue a vocation,

an appeal under this section may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact.

6 The respondent submitted that the decision of the tribunal after the hearing de novo which affirmed the imposition of conditions, did not 'deprive' the appellant of his capacity to lawfully pursue his vocation as a lawyer. The appellant submitted that the orders have in practical terms, deprived him of his capacity to lawfully pursue his vocation because he has not been able to find anyone to employ him. The appellant's submission must be rejected because it is the legal effect, not the practical effect, of the decision which has to be considered: Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [48].

7 The appellant also submitted that being deprived of his capacity to practice on his own account as a sole practitioner amounted to a deprivation of his capacity to lawfully pursue his vocation. If the respondent's submission is correct, then the result is that the appellant requires leave to appeal and the only permitted grounds are grounds which involve a question of law. If the appellant's submissions that the legal effect does deprive him in a limited way of his capacity to lawfully pursue his vocation then he would have the right of appeal subject to the grant of leave on the grounds referred to in s 105(13). It is not necessary to decide this point because the application should be disposed of for other reasons.

8 The appellant's original grounds of appeal ran to 10 pages. They contained vexatious and offensive material. Rule 32(4)(b) of the Supreme Court (Court of Appeal) Rules 2005 (WA) requires the grounds of appeal to be stated 'succinctly' and with 'concise' particulars. Rule 32(4)(c) also states the requirement as to the form of the grounds of appeal. Each ground must state (although not merely state) whether it is an error of fact, an error of law or an error of mixed fact and law. The appellant's original grounds did not comply with these rules.

9 At a directions hearing on 22 January 2009, deficiencies in the appellant's grounds of appeal were pointed out to him. The matter was adjourned to 15 May 2009 so that he could bring in shorter reformulated grounds of appeal. Amended grounds were filed. The reformulated grounds of appeal had grown in length to 26 pages. The document revealed that the appellant appeared not to understand the distinction between grounds of appeal and submissions in support of them. The proposed grounds were prolix and contained vexatious, argumentative and offensive material.

10 On 15 May 2009, the court again pointed out that grounds of appeal had to be stated succinctly, that is, they should be expressed in few words; they should be concise and briefly stated. During oral interchange between the appellant and the court on that day, the appellant said that in his appeal he had 'only two points'. The appellant said that the first was that the Legal Practice Board did not act in the public interest and that the tribunal erred in not finding that the Legal Practice Board injured his reputation and defamed him. It was pointed out to him that if those were his grounds, they might not survive an attack by the respondent, but they would at least be succinct. The appellant was then given leave to file a further minute of proposed re-amended grounds of appeal if he wished to do so, within 14 days. Within time he filed a document entitled 'Optional minute of the proposed re-amended grounds of appeal'. The appellant was given leave on 26 June 2009 to substitute those as his grounds of appeal. He said he wished to rely on the earlier 26 page version as submissions in support of the two new grounds. Ground 1, shorn of particulars, reads:

The Tribunal erred in mixed law and facts by wrongly concluding that the Respondent Board had acted appropriately in the public interests under circumstances when it ought, instead, to have arrived at the reasonably legitimate conclusion that the Respondent Board had sought to trifle with the independent law practice of the Appellant on seven successive occasions (the seven inhibitions) under unjustifiable circumstances, to wit: the Board having been involved in a deliberate wrongdoing by having acted in contumelious disregard of the rights of the Appellant, as follows:

1.1 Re-constituting itself into a false Full Board by Four members acting clandestinely, to go on a frolic of its own, as the agent of the Respondent Board, without the knowledge of the rest of its members, to achieve a private purpose.

1.2 By abusing its discretionary powers under s 40 of the LP Act for an improper and illegal purpose at the behest of some interested persons, the knowledge of which lies peculiarly within the members of False Full Board.

1.3 By denying the Appellant of his human rights to work and his freedom to choose his own profession.

1.4 By falsely labelling the appellant with the phantom deficiency syndrome which it knows would have its accompanying ostracization and discriminatory effects on the Appellant on grounds of his race, age and personal circumstances?

1.5 By failing to dispense fair economic and blind justice with objective judgments by making value pronouncements of twisted facts of trivialities such that they are taken out of context to represent half-truths and passing them as whole truths (value judgments).

1.6 By failing to use its declarative powers under s 91 and s 18 of the State Administrative Tribunal Act, 2004 for a proper purpose when it is reasonably apparent to it that the false Full Board had acted in bad faith.

1.7 By acting in the manner as described in the foregoing sub-paragraphs with persecuting malice.

The Tribunal erred in mixed law and facts when it failed to reach the reasonably expected conclusion after it had been reasonably apprised of the factual circumstances of the Appellant's case (by not making a declaration under s 91 of the SAT Act to the effect that the Appellant has been calumniously defamed and injured in his reputation and character by the false Full Board; the false Full Board having been reasonably found to have acted in bad faith under s 18 of the SAT Act) when it was so found to have been usurping the powers of the real Full Board for the oblique purpose of abusing the discretionary powers of the Respondent as conferred by s 40 of the LP Act, in terms of the following:

2.0.1 by denying the Appellant natural justice through its irrelevant rationalization that it had no powers to award compensation on the defamation issue.

12.0.2 By irrationally and illogically respecting persons instead of respecting the law thereby breaching the fundamental principle of the rule of law; by refusing to tamper with the status quo thereby failing to fulfil its statutory functions to achieve an economic settlement of the issues before it, (fairly: according to the substantial merits of the case; speedily and with less formality and technicality) as required by s 9 of the SAT Act.

2.0.3 By failing to distinguish between the normal and natural 'defects' of a new legal practitioners [sic] by ascribing the Appellant with the phantom professional deficiency syndrome through entertaining illusions of trivialities, in terms of the following:

2.0.3.1 The Appellant does not appreciate that he could be acting in conflict of interest-situations in his relations with his clients and potential clients.

2.0.3.2 The blurring of the distinction between monies in transit and trust monies kept by the Appellant for MTC;

2.0.3.3 Without realizing the fetish desire of the Board to inappropriately label the appellant as a professional having the proclivity to make false allegations against fellow practitioners like Mr Timothy Robin Thies, Mr David Taylor and Mr Pino Monaco.

2.0.3.4 By imagining that the Appellant has the capacity to disrespect members of the judiciary who are obviously on the wrong path and thereby needs corrections by calling a 'spade a spade'; which cannot be solved by mere euphemism.

2.0.3.5 Imagining that Alessandro Bertini is not a victim of the justice system as vindicated by the filed papers in CIV 1764 of 2009 for a s 36 Certiorari Review Order.

2.0.3.6 Imagining that truth and falsehoods are compatible for the ends of justice.

2.0.3.7 Imagining that the SAT Decisions are not free from prejudice and value judgments and that Judges can do away with the essential philosophy for Objective judgments.

11 The question before the court was whether leave should be granted to appeal on those grounds.

The principles governing the grant of leave

12 The power to grant leave to appeal is conferred in general terms. It is not restricted or qualified and therefore leave should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave. It is usually necessary for an applicant for leave to show that there is a real or significant argument to be put in support of the grounds, that there is sufficient doubt about it to justify the grant of leave and that, should the error go uncorrected, it would impose substantial injustice. Where the order below is final, that injustice will often be more readily discernible. See Paridis v Settlement Agents Supervisory Board [16] - [18].

13 Ground 1 is misconceived because it is concerned with demonstrating that the respondent, which the appellant calls 'a false full board' was involved in some form of 'deliberate wrongdoing'. This ground has no reasonable prospect of success as that expression is explained in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 because the hearing before the tribunal was a hearing de novo. The tribunal considered for itself whether it was appropriate for conditions to be placed on the appellant's practice certificate. The tribunal observed that:

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 [25].

14 The tribunal independently considered and made findings in relation to six matters that led to its ultimate conclusion that the appellant did not have the proper appreciation of, and did not observe, the standards of conduct expected of legal practitioners. Those six matters were:

(a) Insufficient appreciation of his obligations concerning trust moneys [27] - [37].

(b) Inappropriate standards of expression [38] - [47].

(d) Lack of understanding that conflicts of interest had arisen [66] - [70].

(e) Offensive references to judicial officers [71] - [78].

(f) Lack of insight or understanding of the inappropriateness of past conduct and a general need for supervision [79] - [82].

15 Ground 1 does not challenge or address any of the substantive matters dealt with by the tribunal in those paragraphs. For those reasons, leave to appeal on ground 1 was refused.

16 Ground 2 alleges that the tribunal erred by not making a declaration that the appellant had been 'calumniously defamed and injured in his reputation and character by the false full board'. The appellant claimed before the tribunal that this warranted an award of compensation. The tribunal said in [13] of its reasons:

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.

17 To the extent that ground 2 (in par 2.0.3) discernibly addresses particular issues considered by the tribunal, it discloses no arguable error on the part of the tribunal. In particular:

(a) the tribunal's concern as to the appellant's appreciation of conflicts (ground 2.0.3.1) was amply justified by the facts recited at reasons [66] - [70] which are not challenged;

(b) in relation to trust moneys, ground 2.0.3.2, suggests that there is a difference between moneys held by a practitioner for a client 'in transit' and 'trust moneys'. This confirms the correctness of the tribunal's finding at [36] that the appellant has an insufficient appreciation of his obligations concerning money held on behalf of clients;

(c) as to ground 2.0.3.3, the tribunal gave detailed reasons for its own finding that the appellant made unjustified allegations against fellow practitioners. No error in those reasons is alleged or disclosed; and

(d) as to ground 2.0.3.4, the tribunal's findings as to the appellant's offensive reference to judicial officers were manifestly supported by the facts at [71] - [76] which facts are not challenged by the grounds.

18 Ground 2 has no reasonable prospect of success and, as a result, leave to appeal on that ground was refused. Both grounds still contain vexatious and offensive material. Neither ground of appeal raised any doubt about the correctness of the tribunal's decision, nor any other basis for granting leave in the interests of justice. As a result of the refusal of leave, the appeal was dismissed.

Court (Court of Appeal) Rules 2005

Administrative Tribunal Act 2004

CHIN -v- LEGAL PRACTICE BOARD WESTERN AUSTRALIA [2009] WASCA 117 (7 July 2009)

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Judgment (47 paragraphs)

CHIN -v- LEGAL PRACTICE BOARD WESTERN AUSTRALIA [2009] WASCA 117 (7 July 2009)

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