BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE

Legal practitioner - Allegation of professional misconduct - Whether defence of res judicata available - Whether the same question determined in earlier proceedings

Legal Practice Act 2003, s 40(3), s 41(1)(b)

Legal Profession Act 2008 (WA), s 438, s 439, s 441

Chin and West Australian Legal Practice Board [2008] WASAT 252

Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446

Willoughby v Clayton Utz [No 2] [2009] WASCA 29

1 The Legal Profession Complaints Committee brought disciplinary proceedings against a legal practitioner, Mr Ni Kok Chin. Mr Chin contended that the allegations had been the subject of determination in other proceedings brought against him previously by the Legal Practice Board, and that the defence of res judicata was available to him. He sought dismissal of the application on that basis.

2 The Tribunal examined the earlier proceedings and determined that they had not determined the same question as fell for determination in these proceedings. These proceedings involve an allegation that Mr Chin's conduct amounts to professional misconduct. The earlier proceedings, although they involved consideration of some of the conduct relied upon in these proceedings, did not involve allegations of professional misconduct. Accordingly, the Tribunal concluded that the defence of res judicata was not available.

3 By an application brought by the Legal Profession Complaints Committee (Complaints Committee) on 30 June 2009, the Complaints Committee alleges that Mr Ni Kok Chin (the practitioner) is guilty of professional misconduct and seeks orders pursuant to s 438, s 439 or s 441 of the Legal Profession Act 2008 (LP Act). Mr Chin has previously brought proceedings in the Tribunal under the Legal Practice Act 2003 (WA) (2003 Act) in which he unsuccessfully sought a review of a decision of the Legal Practice Board to impose conditions on his practice certificate. Mr Chin contends that the doctrine of res judicata applies to prevent the Complaints Committee from bringing this application, and requires dismissal of the application by the Tribunal.

4 The Tribunal determined that it would rule on Mr Chin's contention as a preliminary issue.

5 In the opening paragraph of his submissions on the preliminary issue, the practitioner asserts that he is raising 'the plea of res judicata or issue estoppel to matters, that are contained in this application, which are essentially the same matters which had already been decided in' the earlier decisions of the Tribunal. Subsequently, in his submissions, the applicant submits that 'this application does not concern itself with issue estoppel at all', and submissions are based on the proposition that all of the matters asserted in the present proceedings merged into a decision of the Tribunal delivered on 28 October 2008. It is apparent from the submissions that Mr Chin does not contend that any issue estoppel arises, and it is unnecessary to give consideration to the possible availability of that defence.

6 The defence of res judicata was recently discussed by the Court of Appeal in Willoughby v Clayton Utz [No 2] [2009] WASCA 29 (Willoughby) when Pullin JA, with whom the other members of the court agreed, referred to Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446 where Fullagar J said:

The rule as to res judicata can be stated sufficiently for present purposes by saying that, where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. ...

7 His Honour also referred to the passage from the judgment of Gibb CJ, Mason and Aickin JJ in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, where they said:

... The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding. ...

8 At [14] in Willoughby, Pullin JA identified the elements of res judicata when he said:

1. In Spencer Bower, Turner & Handley, Res Judicata (3rd ed, 1996) [19], the authors state that a party setting up res judicata as a bar to an opponent's claim must establish the following constituent elements, namely:

(a) the decision was judicial in the relevant sense;

(c) the tribunal or court had jurisdiction over the parties and the subject matter;

(e) it determined the same question as that raised in the later litigation; and

(f) the parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem.

9 It is necessary, in order to see whether the defence of res judicata might have any role to play in the present proceedings, to consider the nature and substance of the present proceedings, and the previous proceedings to which the practitioner refers.

10 As already indicated, the present proceedings involve an allegation of professional misconduct on the part of the practitioner, in respect of which the Complaints Committee seeks a disciplinary penalty under s 438, s 439 or s 441 of the LP Act. The grounds upon which relief is sought are set out in an annexure to the application. They involve a number of allegations concerning different matters. The grounds read:

COMPLAINT A - CENTURY LUNCHBAR

THAT the practitioner, NI KOK CHIN ('the practitioner'), was between about July 2004 and March 2005 guilty of professional misconduct in:

(i) acting for his son (as purchaser) in a dispute in relation to the sale of business where the practitioner knew that or acted in reckless disregard of whether:

(a) his own personal and financial interests conflicted with the interests of his son;

(b) doing so was in conflict with his being the vendor's representative in relation to the sale of the business;

(c) he was a likely witness in relation to any dispute in relation to the sale of the business; and

(ii) making a proposal in respect of party and party costs in litigation which was in all the circumstances improper.

COMPLAINT B - GODFREY VIRTUE & CO

THAT the practitioner was on or about 4 January 2005 guilty of professional misconduct in failing to treat a professional colleague with the utmost fairness and courtesy and in making allegations of improper conduct against fellow practitioners without a reasonable and proper basis for doing so.

COMPLAINT C - TAYLOR

THAT the practitioner was between about May 2006 and August 2006 guilty of professional misconduct in making allegations of improper conduct against a fellow practitioner, Mr David Taylor, without a reasonable and proper basis for doing so.

COMPLAINT D - MATHIAS

THAT the practitioner was between about July 2004 and August 2004, guilty of professional misconduct when acting for Mrs Nalini Mathias ('the client') by:

(i) Failing to follow the client's instructions when preparing a will ('the will');

(ii) Failing to reach a reasonable standard of competence in preparing the will;

(iii) Charging the client costs in respect of the drafting of the will and trust deed and acting for the client in respect of an insurance claim against Mondial Assistance, in excess of those that had been agreed with the client;

(iv) Writing to the client in terms which were in the circumstances intemperate and offensive;

(v) Engaging in dishonest conduct by altering a written costs agreement after it had been signed by the client; and

(vi) Attempting to subvert the jurisdiction of the Legal Practitioners Complaints Committee by purporting to resolve a dispute with the client as to fees on terms that the client withdrew all complaints that she had made, or would make, to the Legal Practitioners Complaints Committee.

COMPLAINT E - HALL

THAT the practitioner was on or about 13 February 2006 guilty of professional misconduct by:

(i) writing to a judicial officer seeking legal advice in relation to proceedings in which he was retained and in which the judicial officer had delivered a judgment; and

(ii) in any event, communicating directly with a judicial officer in relation to proceedings in which he was retained without first advising or notifying the solicitors for the party.

COMPLAINT F - M & J METALS

THAT the practitioner was on 9 February 2005 and thereafter guilty of unsatisfactory professional conduct in seeking to receive from his client remuneration:

(i) varying in accordance with the amount which may be recovered by the client in the proceedings; and

(ii) in addition to any costs obtained from the opposing party.

COMPLAINT G - TYLOR, POWELL & FLEAY

THAT the practitioner was between 14 March 2005 and 31 August 2005 guilty of professional misconduct by giving legal advice to and representing Rodney David Tylor and James Francis Fleay in relation to criminal charges against each accused in circumstances where, to the practitioner's knowledge, the interests of each accused were, or were potentially, in conflict.

THAT the practitioner was on 12 June 2006 guilty of unsatisfactory professional conduct in providing an inaccurate and misleading response to the Legal Practitioners Complaints Committee in relation to his representation of Rodney David Tylor and James Francis Fleay.

COMPLAINT H - CLOHESSY

That the practitioner was on or about 19 April 2006 guilty of professional misconduct by making scandalous accusations within a letter sent to the other party in a family law matter.

COMPLAINT I - TRUST ACCOUNT

THAT the practitioner was between in or about February 2005 and in or about February 2006 guilty of professional misconduct by:

(i) failing to deposit trust monies to the credit of a trust account in contravention of section 137 of the Legal Practice Act 2003 and failing to render an account for legal fees in respect of a client, M & J Metals Pty Ltd until after the inspection of the practitioner's practice by the Trust Account Inspector, Ms Ann Buckley on 10 April 2006;

(ii) failing to deposit trust monies to the credit of a trust account in contravention of section 137 of the Legal Practice Act 2003 and failing to render an account for legal fees in respect of a client, Mr Jack Hildebrandt;

(iii) failing to deposit trust monies to the credit of a trust account in contravention of section 137 of the Legal Practice Act 2003 and failing to render an account for legal fees in respect of a client, Mr Atmojo Joseph Ebans;

(iv) failing to deposit trust monies to the credit of a trust account in contravention of section 137 of the Legal Practice Act 2003 and failing to render an account for legal fees in respect of a client Chong Vui Lin;

(v) failing to deposit trust monies to the credit of a trust account in contravention of section 137 of the Legal Practice Act 2003 and failing to render an account for legal fees in respect of a client, Mr Antonio Politi; and

(vi) failing to deposit trust monies to the credit of a trust account in contravention of section 137 of the Legal Practice Act 2003 and failing to render an account for legal fees in respect of a client, Mr Tylor until after the inspection of the practitioner's practice by the Trust Account Inspector, Ms Anna Buckley on 10 April 2006.

11 More particularised facts and contentions are then set out in the application.

12 The history of earlier proceedings between Mr Chin and the Legal Practice Board is set out in the Tribunal's reasons delivered on 28 October 2008 in Chin and West Australian Legal Practice Board [2008] WASAT 252 (second decision). Those reasons recite that Mr Chin was the subject of an investigation by the Complaints Committee in early to mid­2006. 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 2003 Act. The condition imposed limited the practitioner to practise only as an employed solicitor in a legal firm approved by the Board.

13 The practitioner sought a review of that decision by the Tribunal (first proceedings). That application was unsuccessful, and on 12 September 2006, the Tribunal confirmed the order limiting Mr Chin to practise only as an employed solicitor in a legal firm approved by the Board.

14 The practitioner 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 Professional Affairs Committee which had initially imposed the condition. There was otherwise no determination on the merits of the grounds of appeal. The first proceedings were ultimately resolved, therefore, without any operable determination of the issues raised by the Board in those proceedings.

15 Mr Chin then sought to renew his application for practice certificate, but on 14 November 2007, the Board determined to hold an inquiry pursuant to s 41(1)(b) of the 2003 Act as to whether any, and if so what, conditions should be imposed on the practitioner's practice certificate.

16 Following an inquiry in April 2008, a report (2008 report) was made to the Board. The 2008 report was considered by the Board at a meeting on 2 May 2008. The Board resolved to adopt the recommendations in the 2008 report, and resolved to attach the following conditions on the practitioner's practice certificate:

(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.

17 Mr Chin then sought a review of that decision by the Board in the Tribunal (second proceedings). It is apparent that some of the concerns ventilated by the Board in the first proceedings were raised again in the second proceedings as reasons why a condition on the practice certificate was justified. The Board's contentions, which were accepted by the Tribunal, are found at [14] of the second decision. That paragraph reads:

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)1 [sic]

(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.

18 In accepting the Board's contentions in relation to those conclusions, the Tribunal considered a number of matters which had been the subject of the 2008 report. It is apparent that they had been the subject matter of inquiry as a result of a review undertaken of the practitioner's files. Some of those files are the same files in relation to which complaints are made in these proceedings. For example, in the second decision, reliance was placed by the Board, and by the Tribunal, on matters related to the Century Lunchbar file. However, in the second decision, the concern which was ventilated in relation to that file was the adoption by the practitioner of a standard of expression which does not reflect the standards expected of legal practitioners. That is a quite different issue from the allegation made in these proceedings concerning the Century Lunchbar file, which is an allegation of conflict of interest and the making of an improper proposal in relation to costs.

19 In the second decision, reliance was also placed on Mr Chin's dealings with another solicitor, Mr David Taylor. In the second proceedings, the Board alleged that the making of an unfounded allegation against Mr Taylor formed one of the reasons why a condition on Mr Chin's practice certificate requiring supervision was justified. The Committee relies upon the same facts as one of the allegations of professional misconduct in these proceedings.

20 Complaint G, in relation to the Tylor, Powell and Fleay file was also the subject of consideration in the second proceedings.

21 Otherwise, the allegations made in the present proceedings did not form part of the consideration of the Tribunal in the second proceedings.

22 It is true that some, but not all, of the issues ventilated in the first and second proceedings are identified as issues for determination in the present proceedings. It cannot be said, however, even if all of the other criteria identified in the passage from Spencer, Bower, Turner & Handley set out above are satisfied, that what was determined in the earlier proceedings is the same question as that raised in the present proceedings.

23 The question in the earlier proceedings was whether or not it was appropriate for a condition to be imposed on the practitioner's practice certificate. The matter was dealt with in the Tribunal's review jurisdiction. Those proceedings did not involve any allegation of, or necessity to find, professional misconduct on the part of the practitioner.

24 The present proceedings invite findings of professional misconduct in respect to the various matters set out in the grounds. Many of the matters referred to in the allegations played no part in the earlier proceedings. Although there is some overlap in the subject matter of these proceedings with the subject matter of the earlier proceedings, no findings of unsatisfactory professional conduct or professional misconduct have been, or could have been, made in the earlier proceedings. In my view, it is open to the Complaints Committee to seek disciplinary penalties in relation to conduct of the practitioner, notwithstanding that the same conduct may have been considered by the Board in the context of performing its regulatory function.

25 It follows that the proceedings ought not be struck out on the basis of res judicata, and the matter should proceed to hearing in the usual way.

The application by the respondent to strike out the proceedings on the basis of res judicata is dismissed.

I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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