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[2022] WASCA 114
Court of Appeal (WA)
2022-08-31
Buss P
Original judgment source is linked above.
The letters dated 2 June 2016, 17 June 2016 and 29 June 2016
We refer to your letter of 26 May 2016 indicating that you were unable to accept our client's application.
Your suggestion that the requirements of s 182F of the Act have not been met is not maintainable. As you are aware, or should be aware, that section requires conferral and negotiation between the parties. As pointed out in our letter to the insurer which was included in the application, [Client S] has been conferring with QBE Insurance since lodging his claim form on 12 March 2016 which is now almost three months ago.
In these circumstances for the Director to conclude that there has not been '... reasonable attempts ... to resolve the issue in dispute' is simply not maintainable and manifestly unfair to [Client S].
In these circumstances we urgently require the Director to review her decision and accept the application failing which we will take our client's instructions in relation to an application to the Supreme Court for prerogative relief.
We refer to previous correspondence and note your further letter of 7 June 2016 in which you maintain that our client has not done enough to 'confer' with the insurer prior to his WorkCover application being lodged. We have discussed the matter with our client who is extremely distressed by your decision. As he points out there is more than enough evidence of his attempts to resolve this with the insurer prior to the application being lodged. It follows that there is no reliable evidence for you to maintain the decision in your letters of 2 and 7 June 2016.
Our client has not ruled out the possibility of making a formal complaint against the Director personally as he is of the preliminary view that her conduct is with some malice and not based on the evidence or the law. It appears to us also that any objective observer would see the correspondence of 2 and 7 June 2016 as pro-insurer and not balanced.
Please note it is our view that our client is entitled to raise these concerns with the Director's conduct without being penalised.
We refer to your letter of 21 June received 22 June 2016.
We will write separately in respect of your continued non-acceptance of our client's Form 100 application. However, in respect of that intended Form 100 application, please note the insurer has finally accepted liability for our client's claim so that the application is now no longer required.
For now, we refer to your letter's last paragraph where you suggest our 17 June letter used 'intemperate language' to attribute particular 'motives' to the Director that were 'untrue and unfounded'. Could you please particularise:
(1) the words of that paragraph that you consider are intemperate; and
(2) the imputed (untrue and unfounded) motives that you say the language thereby attributed to you.
We note you did refer the matter to [the Committee] who have already contacted us. We of course intend to deal directly with [the Committee] regarding your referral; however, so that we are very clear as to your precise concerns, ask that you provide us with the requested information, at your earliest convenience.
In the interim, if our use of the term 'malice' offended you, it may well be you have (mis)interpreted that aspect of our letter in a personal sense, rather than in the intended legal sense that we used the word (for example, see Northern Territory v Mengel (1995) 185 CLR 307). As a public officer you are not immune from the tort of nonfeasance in a public office and our client is entitled to raise this with you without sanction against him or his solicitors.
The First Information Summons and the First Document Summons
(a) whether the respondent composed the wording for the letter and, if so, on what date he did so and on what date/s he made any revisions to the wording of the letter;
(b) whether any other person was involved in composing the wording for the letter and, if so, to what extent they were involved in composing the wording of the letter, on what date/s they were involved in composing the wording of the letter and what part or parts of the letter they were involved in composing;
(c) whether the respondent had any discussions with Client S about the content of the letter either prior to or after the letter was signed and sent to WorkCover and, if so, the nature of those discussions; and
(d) on what date the respondent sent the letter, or caused the letter to be sent, to WorkCover.
(1) the Practice's entire original file as at 1 August 2016 and all documents arising by reason of the Practice acting for Client S in respect of Client S's Claim up until 1 August 2016 (including but not limited to, relevantly (by paragraph 1(d) of the First Document Summons), all time sheets/pre-billing reports, invoices and records relating to work done and the payment of invoices); and
(2) in respect of each of the 2 June 2016 letter, the 17 June 2016 letter and the 29 June 2016 letter:
(a) all draft versions of the letter (in word format) including track changes and/or comments if applicable;
(b) a complete audit trail from the computer system used to create the letter showing the history or log of all activity performed in respect of the letter, including but not limited to when the letter was first created and by whom and the date any changes were made to the letter and by whom; and
(c) all metadata and other data available on the Practice's computer system in relation to the electronic copy of each draft version of the letter and the final version of the letter.
(a) with respect to the First Document Summons, the respondent informed the Committee that he would not provide all of the Practice's entire original file as required by the summons, but would provide his entire original file up to 29 June 2016, and that he did not know what an 'audit trail' is or what 'meta data' is for the purposes of paragraph 2 of the summons, but that he would provide copies of the 'relevant' documents by 3 March 2017; and
(b) with respect to the First Information Summons, the respondent said:
... the information sought in that Summons is irrelevant to the complaint. As you are no doubt aware, s 584 of the [LP Act] in these circumstances deems me responsible from a professional point of view for all the work done on my files by employees under my supervision. In light of that provision, I do not understand how, with respect to clauses 1a) to d) of this Summons, those clauses are relevant (given that I am ultimately responsible for the contents of any letters on my files that leave this office) or cannot otherwise be determined from the original file itself. In these circumstances, at this stage, I believe s 520(3) of the [LP Act] only requires a statutory declaration to be provided in relation to information that is relevant to a complaint. In my respectful view none of the matters set out in that Summons are relevant.
(a) copies of 'the relevant documents' referred to in the First Document Summons would be provided to the Committee by 4 pm on 7 March 2017;
(b) in response to the First Information Summons, he would either provide the Committee with a statutory declaration in response or an application to set aside the First Information Summons by 4 pm on 10 March 2017; and
(c) confirmed that his submissions pursuant to s 414 of the LP Act would be provided by 4 pm on 7 March 2017.
(a) provided to the Committee what he described as a bundle of 'copied relevant documents' from the Practice's file in response to the First Document Summons, but did not provide the original client file as required by the First Document Summons; and
(b) advised that his submissions would be provided to the Committee by 4 pm on 13 March 2017.
(a) said that his office administrator was still arranging for the Practice's IT contractor to attend the office and that 'we hope' to have the contractor in the office 'some time this week';
(b) alleged that he had been unable to 'establish the process' for setting aside the Information Summons and he would provide the statutory declaration 'as requested', but it would include his 'objections on relevance ... where appropriate'; and
(c) stated that his submissions would be provided to the Committee by no later than 4 pm on 20 March 2017 and stated 'I undertake to meet that deadline' (First Undertaking).
(a) asserted that he had previously informed the Committee that he would provide a response to the First Information Summons by statutory declaration on two conditions, being:
(i) receiving confirmation that there is no process to apply to set aside the summons as far as compelling him to provide (so-called) irrelevant information is concerned; and
(ii) that he be permitted to include his objections on the grounds of relevance in that statutory declaration;
(b) stated that his statutory declaration would be provided to the Committee by 4 pm on 13 April 2017;
(c) asserted that he would be completing the statutory declaration in response to improper pressure applied by the Committee; and
(d) asserted that he had written to the Committee by letter dated 29 March 2017 addressing the content of a letter from the Committee dated 29 March 2017.
(a) asserted that he had complied with the First Document Summons because, relevantly, the only power the Committee could lawfully enforce by way of a summons is the power to compel 'relevant documents';
(b) stated that he had indicated he would, unless a process to set aside could be identified, complete a statutory declaration in response to the First Information Summons, but would include in the statutory declaration his objections on the grounds of relevance, as required; and
(c) stated that his submissions would be lodged with the Committee by 4 pm on 10 April 2017 (which date had already passed by the time the Committee received this letter).
(a) a statutory declaration of the respondent dated 13 April 2017 (Statutory Declaration) which the respondent said was made in response to the First Information Summons; and
(b) his submissions dated 12 April 2017 pursuant to s 414 of the LP Act.
(a) He did not believe that 'most of the matters set out in the [First Information] Summons are relevant to the [WorkCover Complaint]' and he was responding to the First Information Summons 'even though I believe much of it to be irrelevant to the [WorkCover Complaint], as a result of pressure placed on me by the [Committee] to provide a statutory declaration or otherwise face further professional pressure on the basis that I have to this point, failed to respond to the [First Information] Summons fully and accurately and in a timely manner'.
(b) In his response to paragraph 1(a) of the First Information Summons the respondent said 'I object to providing the information requested on the ground of relevance. I can confirm however that I am responsible from a professional point of view for all correspondence that is prepared and sent on my files'.
(c) In his response to paragraph 1(b) of the First Information Summons the respondent said 'I object to providing the information requested on the ground of relevance. I can confirm however that I am responsible from a professional point of view for all correspondence that is prepared and sent on my files'.
(d) In his response to paragraph 1(c) of the First Information Summons the respondent said 'I object to providing the information requested on the ground of relevance. I can confirm however that I am responsible from a professional point of view for the conduct of my files. I have also previously provided the [Committee] with copies of all relevant documents from our file in relation to [Client S], including copies of any file notes of discussions we had with [Client S] in relation to WorkCover's failure to accept his WorkCover application'.
(e) In his response to paragraph 1(d) of the First Information Summons the respondent said 'I object to providing the information requested on the ground of relevance. I can confirm however that I am responsible from a professional point of view for all correspondence that is prepared and sent on my files. I can only assume the three letters were posted in accordance with our normal office procedure, which means they should have been despatched on the date that is on the letter, or the day following'.
The Second Information Summons and the Second Document Summons
(a) whether the respondent composed the wording for the letter and, if so, on what date he did so and on what date/s he made any revisions to the wording of the letter;
(b) whether any other person was involved in composing the wording for the letter and, if so, to what extent they were involved in composing the wording of the letter, on what date/s they were involved in composing the wording of the letter and what part or parts of the letter they were involved in composing;
(c) whether the respondent had any discussions with Client F about the content of the letter either prior to or after the letter was signed and sent to WorkCover and, if so, the nature of those discussions; and
(d) on what date the respondent sent the letter, or caused the letter to be sent, to WorkCover.
(1) the Practice's entire original file as at 30 October 2016 and all documents arising by reason of the Practice acting for Client F in respect of Client F's Claim up until 30 October 2016 (including but not limited to, relevantly (by paragraph 1(d) of the Second Document Summons), all time sheets/pre-billing reports, invoices and records relating to work done and the payment of invoices); and
(2) in respect of each of the 22 March 2016 letter, the 11 May 2016 letter, the 12 May 2016 letter, the 7 September 2016 letter, the 23 September 2016 letter, the 6 October 2016 letter and the 13 October 2016 letter:
(a) all draft versions of the letter (in word format) including track changes and/or comments if applicable;
(b) a complete audit trail from the computer system used to create the letter showing the history or log of all activity performed in respect of the letter, including but not limited to when the letter was first created and by whom and the date any changes were made to the letter and by whom; and
(c) all metadata and other data available on the Practice's computer system in relation to the electronic copy of each draft version of the letter and the final version of the letter.
(1) With respect to the Second Document Summons, the respondent informed the Committee that he would not provide all of the Practice's entire original file as required by the summons, but would provide his entire original file up to 7 September 2016, and that he did not know what an 'audit trail' is or what 'meta data' was for the purposes of paragraph 2 of the summons, but that he would provide copies of the 'relevant' documents by 3 March 2017.
(2) With respect to the Second Information Summons, the respondent asserted that:
... the information sought in that summons is irrelevant to the complaint or the Conduct Investigation. As you are no doubt aware, s 584 of the [LP Act] in these circumstances deems me as responsible from a professional point of view for all the work done by employees under my supervision. In light of that provision, I do not understand how, with respect to clauses 1a) to d) of this Summons, those clauses are relevant (given that I am ultimately responsible for the contents of any letters on my files that leave this office) or cannot otherwise be determined from the original file itself. In these circumstances, at this stage, I believe s 520(3) of the [LP Act] only requires a statutory declaration to be provided in relation to information that is relevant to a complaint. In my respectful view none of the matters set out in that Summons are relevant.
(a) copies of 'the relevant documents' referred to in the Second Document Summons would be provided to the Committee by 4 pm on 7 March 2017;
(b) in response to the Second Information Summons, he would either provide the Committee with a statutory declaration in response or an application to set aside the Second Information Summons by 4 pm on 10 March 2017; and
(c) confirmed that his submissions pursuant to s 414 of the Act would be provided by 4 pm on 7 March 2017.
(a) provided to the Committee what he described as a bundle of 'copied relevant documents' from the Practice's file in response to the Second Document Summons, but did not provide the original client file as required by the Second Document Summons; and
(b) advised that his submissions would be provided to the Committee by 4 pm on 13 March 2017.
(a) said that his office administrator was still arranging for the Practice's IT contractor to attend the office and that 'we hope' to have the contractor in the office 'sometime this week';
(b) alleged that he had been unable to 'establish the process' for setting aside the Second Information Summons and he would provide the statutory declaration 'as requested', but it would include his 'objections on relevance ... where appropriate'; and
(c) stated that his submissions would be provided to the Committee by no later than 4 pm on 20 March 2017 and stated 'I undertake to meet that deadline' (Second Undertaking).
(a) asserted that he had previously advised the Committee he would provide a response to the Second Information Summons by statutory declaration on two conditions, being:
(i) receiving confirmation that there is no process to apply to set aside the summons as far as compelling him to provide (so-called) irrelevant information is concerned; and
(ii) that he be permitted to include his objections on the grounds of relevance in that statutory declaration;
(b) stated that his statutory declaration would be provided to the Committee by 4 pm on 13 April 2017;
(c) asserted that he would be completing the statutory declaration in response to improper pressure applied by the Committee;
(d) asserted that he had written to the Committee by letter dated 29 March 2017 addressing the content of a letter from the Committee dated 29 March 2017.
(a) asserted that he had complied with the Second Document Summons because, relevantly, the only power the Committee could lawfully enforce by way of a summons is the power to compel 'relevant documents';
(b) stated that he had indicated he would, unless a process to set aside could be identified, complete a statutory declaration in response to the Second Information Summons, but would include in the statutory declaration his objections on the grounds of relevance, as required; and
(c) stated that his submissions would be lodged with the Committee by 4 pm on 10 April 2017 (which date had already passed by the time the Committee received this letter).
(a) a statutory declaration of the respondent dated 13 April 2017 (Second Statutory Declaration) which was asserted on its face to have been made in response to the Second Information Summons (but which did not comply or purport to comply with the requirements of the Second Information Summons); and
(b) his submissions dated 12 April 2017.
(a) He did not believe that 'most of the matters set out in the Summons are relevant to [R's Complaint]' and he was (so he asserted) responding to the Second Information Summons 'even though I believe much of it to be irrelevant to [R's Complaint], as a result of pressure placed on me by the [Committee] to provide a statutory declaration or otherwise face further professional pressure on the basis that I have to this point, failed to respond to the Summons fully and accurately and in a timely manner'.
(b) In his response to paragraph 1(a) of the Second Information Summons the respondent said 'I object to providing the information requested on the ground of relevance. I can confirm however that I am responsible from a professional point of view for all correspondence that is prepared and sent on my files'.
(c) In his response to paragraph 1(b) of the Second Information Summons the respondent said 'I object to providing the information requested on the ground of relevance. I can confirm however that I am responsible from a professional point of view for all correspondence that is prepared and sent on my files'.
(d) In his response to paragraph 1(c) of the Second Information Summons the respondent said 'I object to providing the information requested on the ground of relevance. I can confirm however that I am responsible from a professional point of view for the conduct of my files. I have also previously provided the [Committee] with copies of all relevant documents from our files in relation to [Client F], including copies of any relevant file notes of discussions we had with [Client F]'.
(e) In his response to paragraph 1(d) of the Second Information Summons the respondent said 'I object to providing the information requested on the ground of relevance. I can confirm however that I am responsible from a professional point of view for all correspondence that is prepared and sent on my files. I can only assume the letters were posted in accordance with our normal office procedure, which means they should have been despatched on the date that is on the letter, or the day following'.
The Tribunal finds that [the respondent] behaved in a way that constitutes unsatisfactory professional conduct and professional misconduct as defined in s 402 and s 403(1) respectively of the [LP Act] as follows:
Orders 1 to 6, 12, 13 and 17 are the subject of the Committee's application for leave to appeal.
(a) to provide for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;
(b) to promote and enforce the professional standards, competence and honesty of the legal profession; and
(c) to provide a means of redress for complaints about lawyers.
unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(a) make and transmit a report on the finding to the Supreme Court (full bench) (s 438(2)(a)); or
(b) make any one or more of the orders specified in s 439, s 440 and s 441 (s 438(2)(b)).
(a) an order that the practitioner pay a fine to the Board of a specified amount not exceeding $25 000;
(b) an order that the practitioner undertake and complete a specified course of further legal education;
(c) a compensation order;
(d) an order that the complainant pay the amount of legal costs in dispute or that the amount of legal costs be reduced by a specified amount (not exceeding the amount in dispute);
(e) an order that the practitioner provide specified legal services to the complainant either free of charge or at a specified cost;
(f) an order that the practitioner undertake a specified period of practice under specified supervision;
(g) an order that the practitioner do or refrain from doing something in connection with the practice of law;
(h) an order that the practitioner's practice, or the financial affairs of the practitioner or of the practitioner's practice, be conducted for a specified period in a specified way or subject to specified conditions;
(i) an order that the practitioner's practice be subject to periodic inspection for a specified period;
(j) an order that the practitioner undergo counselling or medical treatment or act in accordance with medical advice given to the practitioner;
(k) an order that the practitioner use the services of an accountant or other financial specialist in connection with the practitioner's practice;
(l) an order that the practitioner seek advice in relation to the management of the practitioner's practice from a specified person;
(m) an order that the practitioner not apply for a local practising certificate before the end of a specified period.
(1) The State Administrative Tribunal may make interlocutory or interim orders as it thinks fit before making its final decision about a complaint against an Australian legal practitioner.
(2) Without limiting subsection (1), orders of the kind referred to in sections 439, 440 and 441 may be made as interlocutory or interim orders.
(1) If the State Administrative Tribunal under section 438(2)(a) makes and transmits a report in respect of an Australian legal practitioner to the Supreme Court (full bench), the report is to be taken to be conclusive as to all facts and findings mentioned or contained in the report.
(2) The Supreme Court (full bench) may, upon motion and upon reading the report, and without any further evidence do either or both of the following -
(a) make any order that the State Administrative Tribunal may make under sections 439, 440 and 441;
(b) order the removal from the roll of the name of an Australian legal practitioner who is a local lawyer.
For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, an investigator may, by notice or summons served on the lawyer, require the lawyer to do any one or more of the following -
(a) to produce, at or before a specified time and at a specified place, any specified document (or a copy of the document);
(b) to produce, at a specified time and at a specified place, any specified document (or a copy of the document);
(c) to provide written information on or before a specified date;
(d) to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner.
The relevant provisions of the Legal Profession Conduct Rules 2010 (WA)
The main objectives of the Tribunal in dealing with matters within its jurisdiction are -
(a) to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and
(b) to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and
(c) to make appropriate use of the knowledge and experience of Tribunal members.
(a) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures or the regulations or rules make them apply; and
(b) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(a) the decision is a final decision; or
(b) the Tribunal reserved the decision; or
(c) the rules state that the decision has to be given in writing; or
(d) a party requests that the decision be given in writing.
(1) A party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal.
(2) The appeal can only be brought on a question of law.
...
(9) The court dealing with the appeal may -
(a) affirm, vary, or set aside the decision of the Tribunal; or
(b) make any decision that the Tribunal could have made in the proceeding; or
(c) send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate,
and, in any case, may make any order the court considers appropriate.
(10) If the court sends the matter back to the Tribunal under subsection (9)(c), it is to give directions as to whether or not the Tribunal reconsidering the matter is to be constituted by the member or members who made the original decision.
...
(13) Despite subsection (2), if the Tribunal's decision -
(a) is made under a relevant Act or 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.
(a) an Act specified in Schedule 1, if it is an enabling Act; or
(b) an enabling Act prescribed by the regulations for the purposes of subsection (13).
The decisions of the Tribunal challenged in this appeal
(a) section 105(1) of the SAT Act confers a right of appeal, subject to leave being given, from a 'decision' of the Tribunal; and
(b) section 3(1) of the SAT Act defines the term 'decision' to include 'an order, direction, or determination of the Tribunal'.
(a) by 4.00 pm on 14 February 2022, the Committee must file and serve substituted grounds of appeal which must not enlarge upon the existing grounds and which must:
(i) state the question or questions of law on which the appeal is brought;
(ii) state alleged errors of law in the orders or determinations of the Tribunal as to professional misconduct or unsatisfactory professional conduct engaged in by the respondent; and
(iii) otherwise comply with the requirements of r 32 of the Court of Appeal Rules;
(b) by 4.00 pm on 14 February 2022, the Committee must file and serve substituted orders wanted; and
(c) by 4.00 pm on 21 February 2022, the respondent must file and serve a memorandum in response to the substituted grounds of appeal and the substituted orders wanted.
The substituted grounds of appeal and the alleged questions of law
(a) by denying the Committee procedural fairness in determining at each of [303], [314], [340] and [343] of its reasons that it would not consider whether the respondent failed to comply with each of the summonses dated 4 January 2017 for the production of documents and the provision of information served on the respondent by the Committee pursuant to s 520(1)(a) and (d) of the LP Act for the purpose or a substantial purpose of seeking to frustrate the Committee's investigations into his conduct;
(b) further or in the alternative, by denying the Committee procedural fairness in failing to consider whether the respondent's conduct in failing to comply with each summons fell short, by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence, such that he is not a fit and proper person to engage in legal practice within s 403(1)(b) of the LP Act;
(c) further or in the alternative, in determining at [305], [316], [340] and [343] of its reasons that the respondent's conduct identified in each of grounds 2 and 3 of Annexure A and grounds 3 and 4 of Annexure B of the application fell short by a substantial degree of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner and not by reference to the allegations there made that the respondent's conduct was such that it would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence, such that the respondent was not a fit and proper person to engage in legal practice.
(a) whether there was no evidence to support the Tribunal's finding that the sending of the respondent's letter dated 2 June 2016 to the Director was in legitimate pursuit of Client S's interests;
(b) whether, in the absence of such evidence, the Tribunal's finding that the letter was not discourteous was so unreasonable that no reasonable decision maker could have made it.
(a) whether the Tribunal failed to afford the Committee procedural fairness by failing to inform the parties that it contemplated not determining the allegations that the respondent's conduct in sending each of the letters dated 17 June 2016 and 29 June 2016 was such as to be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence;
(b) whether the Tribunal failed to afford the Committee procedural fairness by failing to consider each of those issues;
(c) whether the Tribunal's reasons for its decisions not to determine each of those questions were adequate;
(d) whether the Tribunal applied the wrong legal test in determining ground 1 of Annexure A to the application.
(a) in respect of ground 5(a):
(i) whether the Tribunal failed to afford the Committee procedural fairness by failing to inform the parties that it contemplated not determining the allegations that the respondent did not comply with each summons for the purpose or a substantial purpose of seeking to frustrate the appellant's investigations into his conduct;
(ii) whether the Tribunal failed to afford the Committee procedural fairness by failing to consider each of those questions;
(iii) whether the Tribunal's reasons for its decisions not to determine each of those questions were adequate;
(b) in respect of ground 5(b):
(i) whether the Tribunal failed to afford the Committee procedural fairness by failing to inform the parties that it contemplated not determining the allegations that the respondent's conduct should be characterised as alleged on each of grounds 2 and 3 of Annexure A and grounds 3 and 4 of Annexure B;
(ii) whether the Tribunal failed to afford the Committee procedural fairness by failing to consider each of those issues;
(iii) whether the Tribunal's reasons for its decisions not to determine each of those questions were adequate;
(c) in respect of ground 5(c), whether, having regard to the allegations made in each of grounds 2 and 3 of Annexure A and grounds 3 and 4 of Annexure B of the application, the Tribunal applied the wrong legal test in determining those grounds of the application.
The Committee's substituted orders wanted in the appeal
4.1 The respondent between on or about 2 June 2016 and on or about 29 June 2016 in the course of acting for Mr S (Client S) with respect to his claim under the Workers Compensation and Injury Management Act 1981 (WA) (the WCA) (the Claim) engaged in professional misconduct within the meaning of sections 403 and 438 of the Legal Profession Act 2008 (WA) (the LP Act), in that his conduct fell short consistently and by a substantial degree of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence such that he is not a fit and proper person to engage in legal practice within the meaning of section 403(1)(b) of the LP Act by preparing and causing to be sent, letters dated 2 June 2016, 17 June 2016 and 29 June 2016 to the Director, Conciliation Service, WorkCover WA, the contents of which were intemperate, threatening, intimidating and discourteous, and by which the respondent attempted to interfere with the due administration of justice.
4.2 The respondent, from 28 February 2017 and continuing during the investigation by the [Committee] of a complaint against the respondent in relation to the respondent's conduct of the Claim (the Complaint), engaged in professional misconduct within the meaning of sections 403, 404(a) and 438 of the LP Act, in that his conduct fell short consistently and by a substantial degree of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence such that he is not a fit and proper person to engage in legal practice within the meaning of section 403(1)(b) of the LP Act, by, without reasonable excuse, and for the purpose or a substantial purpose of seeking to frustrate or hinder the Committee's investigation into the Complaint, failing to comply with a summons served on the Practitioner by the Law Complaints Officer pursuant to sections 520(1)(a) and 520(1)(d) of the LP Act dated 4 January 2017, within the time stated for compliance as varied from time to time.
4.3 The respondent, from 28 February 2017 and continuing during the investigation by the [Committee], engaged in professional misconduct within the meaning of sections 403, 404(a) and 438 of the LP Act, in that his conduct fell short consistently and by a substantial degree of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence such that he is not a fit and proper person to engage in legal practice within the meaning of section 403(1)(b) of the LP Act, by, without reasonable excuse, and for the purpose or a substantial purpose of seeking to frustrate or hinder the [Committee's] investigation into the Complaint, failing to comply with a summons for the provision of written information verified by statutory declaration served on the respondent by the Law Complaints Officer pursuant to sections 520(1)(c) and (d) and 520(3) of the Act dated 4 January 2017, within the time stated for compliance as varied from time to time.
4.4 The respondent, from 28 February 2017 and continuing during the investigation by the [Committee] of a complaint against the respondent in relation to the respondent's conduct of a client's claim under the WCA against Sir Charles Gairdner Hospital (the Mr R Complaint) and a conduct investigation being carried out by the [Committee] in respect of the respondent's letters of 6 and 13 October 2016 (the Conduct Investigation), engaged in professional misconduct within the meaning of sections 403, 404(a) and 438 of the LP Act, in that his conduct fell short consistently and by a substantial degree of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence such that he is not a fit and proper person to engage in legal practice within the meaning of section 403(1)(b) of the LP Act, by, without reasonable excuse, and for the purpose or a substantial purpose of seeking to frustrate or hinder the [Committee's] investigation into the Mr R Complaint and the Conduct Investigation, failing to comply with a summons for the production of documents served on the [respondent] by the Law Complaints Officer pursuant to sections 520(1)(a) and 520(1)(d) of the LP Act dated 17 January 2017, within the time stated for compliance as varied from time to time.
4.5 The respondent, from 28 February 2017 and continuing during the investigation by the [Committee] of the Mr R Complaint and the Conduct Investigation, engaged in professional misconduct within the meaning of sections 403, 404(a) and 438 of the LP Act, in that his conduct fell short consistently and by a substantial degree of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence such that he is not a fit and proper person to engage in legal practice within the meaning of section 403(1)(b) of the LP Act, by, without reasonable excuse, and for the purpose or a substantial purpose of seeking to frustrate or hinder the [Committee's] investigation into the [Mr R] Complaint and the Conduct Investigation, failing to comply with a summons for the provision of written information verified by statutory declaration served on the [respondent] by the Law Complaints Officer pursuant to sections 520(1)(c) and (d) and 520(3) of the LP Act dated 17 January 2017, within the time stated for compliance as varied from time to time.
4.6 The respondent pay the costs of the proceedings before the Tribunal, to be assessed if not agreed.
The Committee's proposed stance at the penalty hearing in the Tribunal
The organisation of the balance of these reasons
Alleged questions of law raised in respect of substituted ground 1: the Committee's submissions
(a) QBE Insurance had informed Client S by notice dated 1 April 2016 that it was unable to make a decision about liability to make workers compensation payments because there was 'insufficient medical information to determine whether an injury has been sustained pursuant to section 5 of the [Workers' Compensation Act]'. By the same notice, QBE Insurance informed Client S that it required 'medical information and clinical records from known medical practices' in order to assess the claim.
(b) On 20 May 2016, the Practice lodged the application for conciliation on behalf of Client S.
(c) That application included both the notice dated 1 April 2016 from QBE Insurance and a copy of a letter dated 16 May 2016 from the Practice to QBE Insurance on behalf of Client S which stated, relevantly:
As you are aware our client has been [attempting to resolve] this matter directly with your office since lodging this claim in March 2016, a period of over two months. It is therefore apparent he has done everything possible to negotiate a suitable outcome of this dispute and given your ongoing refusal to accept liability, further negotiation and conferral is clearly futile.
(d) By letter dated 26 May 2016, the Director informed the Practice that she was not satisfied, having regard to the documents submitted in support of the application, that reasonable attempts had been made to resolve the issue in dispute, and that she was therefore unable to accept the application.
(a) there was no evidence before the Tribunal as to Client S's attempts to resolve his dispute with QBE;
(b) there was no evidence as to what medical information had been provided to QBE before 1 April 2016;
(c) there was no evidence that the medical information which QBE Insurance had stated in its notice dated 1 April 2016 that it required had been provided to QBE Insurance before 16 May 2016;
(d) there was no evidence as to what had been Client S's instructions to the Practice before 14 June 2016.
(a) there was no basis for the respondent to state that it was not maintainable for the Director to say that the evidentiary requirements under s 182F had not been met; and
(b) the respondent's assertion in the 2 June 2016 letter was without foundation and the letter was therefore intemperate.
(a) the Tribunal's finding that the sending of the respondent's letter dated 2 June 2016 to the Director was not discourteous and was in legitimate pursuit of Client S's interests involved an error of law by the Tribunal in that there was no evidence to support those findings; and
(b) in the absence of such evidence, the Tribunal's finding that the sending of the letter was not discourteous was so unreasonable that no reasonable decision maker could have made it.
Alleged questions of law raised in respect of substituted ground 1: the respondent's submissions
(a) whether there was no evidence to support the Tribunal's finding that the sending of the 2 June 2016 letter was in legitimate pursuit of Client S's interests; and
(b) whether, in the absence of such evidence, the Tribunal's finding that the letter was not discourteous was so unreasonable that no reasonable decision maker could have made it.
Alleged questions of law raised in respect of substituted ground 1: their merits
(a) there was no evidence to support the Tribunal's finding that the sending of the 2 June 2016 letter was in legitimate pursuit of Client S's interests; and
(b) in the absence of such evidence, the Tribunal's finding that the letter was not discourteous was so unreasonable that no reasonable decision maker could have made it.
(a) The Director's position as set out in the Director's 26 May 2016 letter that Client S's application could not be accepted because the requirements of s 182F of the Workers' Compensation Act had not been met was 'not maintainable'.
(b) As the Director was or should have been aware, s 182F requires conferral and negotiation between the parties.
(c) As pointed out in a letter to QBE Insurance (which was included in Client S's application), Client S had been conferring with QBE Insurance for almost three months.
(d) In the circumstances, the Director's conclusion that the requirements of s 182F had not been met was not maintainable and was manifestly unfair to Client S.
(e) In the circumstances, the respondent required the Director urgently to review her decision and to accept Client S's application.
(f) If the Director failed to review and accept Client S's application, the respondent would take instructions from Client S in relation to an application to the Supreme Court for prerogative relief.
The meaning of 'courteous' in Conduct Rule 6(1)(b) is its plain meaning, which is polite, kind, considerate, in manner or approach; Shorter Oxford Dictionary 6th ed. We do not consider that the 2 June letter was discourteous or that it contravened Conduct Rule 6(2)(b). It refers to making 'an application to the Supreme Court', without any speculation as to the prospects of that application's success. It was not directed at the Director personally. Further, we consider that it was written in legitimate pursuit of Client S's interests and that the [threat of the possibility of an application to the Supreme Court for prerogative relief] was no more than the [respondent] putting the Director on notice as to how he might proceed against WorkCover if so instructed [285].
(a) Client S had retained the Practice to make an application on Client S's behalf under the Workers' Compensation Act.
(b) Prior to 2 June 2016, there had been some discussion between the parties (that is, between Client S or the Practice, on the one hand, and QBE Insurance, on the other).
(c) The Director on behalf of WorkCover was of the view that the conferral requirement under s 182F of the Act had not been satisfied.
(d) The respondent on behalf of Client S disagreed with the Director's view that the conferral requirement had not been satisfied.
(e) There was no finding by the Tribunal and no admission by the respondent that the respondent did not genuinely hold the view that the conferral requirement had been satisfied.
(f) On 22 June 2016, WorkCover accepted Client S's application.
(a) the statements in the 2 June 2016 letter set out at [171] above;
(b) the subject matter of the communication in the 2 June 2016 letter, namely whether WorkCover should accept Client S's application;
(c) the Tribunal's finding (which we have held was reasonably open) that the respondent wrote and sent the 2 June 2016 letter 'in legitimate pursuit of Client S's interests'; and
(d) the manner of expression and approach adopted in the 2 June 2016 letter, having regard to the relevant subject matter and the assertions and demands made in the letter,
to find, in effect, that the letter was not discourteous.
Alleged questions of law raised in respect of substituted ground 3: the Committee's submissions
(a) at [292] that the respondent's conduct in sending the letters constituted unsatisfactory professional conduct because the sending of the letters fell substantially short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner; and
(b) at [293], that the respondent's conduct in sending the letters constituted professional misconduct for the same reason.
Alleged questions of law raised in respect of substituted ground 3: the respondent's submissions
(a) counsel conceded that the Tribunal failed to afford the Committee procedural fairness by failing to inform the parties that it contemplated not determining the allegations that the respondent's conduct in sending each of the letters dated 17 June 2016 and 29 June 2016 was such as to be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence or, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence;
(b) counsel conceded that the Tribunal failed to afford the Committee procedural fairness by failing to consider each of those issues;
(c) counsel accepted that the Tribunal's reasons for its decisions not to determine each of those questions were not adequate;
(d) counsel conceded that the Tribunal applied the wrong legal test in determining ground 1 of Annexure A to the application.
(a) The Tribunal concluded at [292] of its reasons that the sending of each letter constituted unsatisfactory professional conduct in that the sending of the letters involved a breach of rule 6(1)(b) of the Conduct Rules.
(b) The Tribunal also concluded at [293] of its reasons that the sending of each letter constituted professional misconduct in that the sending of the letters breached rule 6(2)(b) of the Conduct Rules.
(c) At the hearing of the appeal, counsel for the Committee said that the Committee would be seeking an order that the respondent's name be removed from the roll, even on the findings made by the Tribunal (appeal ts 21).
(d) That position adopted by counsel for the Committee necessarily requires the Committee to request the Tribunal to conclude that the respondent's conduct, in aggregate and not merely by reference to the sending of the 17 June 2016 and 29 June 2016 letters, was such that the respondent is not fit to engage in legal practice.
(e) Accordingly, even though the Committee was denied procedural fairness on the basis it asserts, the Committee has not suffered a substantial injustice because it remains open to the Committee to request the Tribunal to make a finding that encompasses the ultimate characterisation of the respondent's conduct that the Committee alleged.
(f) The Committee made no submissions to the Tribunal to the effect that the respondent, in sending the 17 June 2016 and 29 June 2016 letters, did so knowing there were no reasonable grounds for the allegations contained in the letters or was reckless as to that fact or grossly careless as to that fact. The Committee presented its case before the Tribunal on the basis that the impugned allegations in the letters in fact had no reasonable basis and on the basis that a finding to that effect was sufficient to determine the matter in the Committee's favour. The only reference by the Committee to the respondent's subjective intention was the allegation that the respondent was intending to influence the Director (improperly) to accept the conciliation application that was the subject of the letters. The Tribunal made a finding to that effect at [289] of its reasons.
(g) The Committee, having failed to agitate that aspect of its case in its submissions before the Tribunal, should not be permitted to agitate that point on appeal.
(h) The Tribunal's findings that the respondent had no (objectively reasonable) basis for making the impugned allegations in the 17 June 2016 and 29 June 2016 letters should not be disturbed on appeal for the purpose of enabling one finding of professional misconduct to be substituted for two different findings of professional misconduct and two findings of unsatisfactory professional conduct, even if that course were open to this court under s 105 of the SAT Act.
Alleged questions of law raised in respect of substituted ground 3: their merits
(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence (s 403(1)(a)); and
(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice (s 403(1)(b)).
(a) the Tribunal denied the Committee procedural fairness in that the Tribunal failed to inform the parties that it contemplated not determining the Committee's allegations that the respondent's conduct in sending the 17 June 2016 and 29 June 2016 letters was such as to be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence or, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence;
(b) the Tribunal failed to afford the Committee procedural fairness by failing to consider each of those issues; and
(c) the Tribunal applied the wrong legal test in determining ground 1 of Annexure A to the application in that the Tribunal assessed the Committee's allegations regarding the respondent's conduct by reference to the respondent's competence and diligence rather than by reference to the gravamen of the Committee's allegations, namely that the respondent's conduct in sending the correspondence indicated that he is unfit to practice.
(a) if a judicial officer proposes to decide a case on a basis that is materially different from the basis on which the parties conducted the hearing, the judicial officer must inform the parties of the proposed basis so that the parties have an opportunity to respond to the judicial officer's adoption of the proposed basis and any new or changed issues that may arise;
(b) if the judicial officer fails so to inform the parties there will ordinarily be a denial of procedural fairness that will result in an order for a new hearing if a properly conducted hearing might possibly have produced a different result; and
(c) ordinarily, it will not be necessary to adduce evidence on appeal to prove that the denial of procedural fairness had the potential to affect the outcome because, in most cases, the facts will speak for themselves.
(a) to consider whether to make the findings contended for by the Committee at the liability hearing in relation to the respondent's conduct in sending the 17 June 2016 and 29 June 2016 letters;
(b) if thought fit, to make the findings that were contended for by the Committee at the liability hearing; and
(c) if the Tribunal were to make those findings, to deal with the respondent, having regard to those findings, at the penalty stage of the proceedings,
without this court granting leave to appeal, allowing the appeal and setting aside, wholly or partly, one or more of the relevant orders made by the Tribunal on 21 June 2019.
(a) The respondent engaged in unsatisfactory professional conduct in writing and causing to be sent the 17 June 2016 and 29 June 2016 letters which breached r 6(1)(b) of the Conduct Rules (orders 1 and 3).
(b) The respondent engaged in professional misconduct in writing and causing to be sent the 17 June 2016 and 29 June 2016 letters which breached r 6(2)(b) of the Conduct Rules (orders 2 and 4).
(a) In exercising jurisdiction under s 438(1) of the LP Act, the determination by the Tribunal, as a separate issue, of whether the practitioner engaged in unsatisfactory professional conduct or professional misconduct will ordinarily be the most efficient and cost‑effective approach to the resolution of the Committee's application in that (1) if such conduct is not found, the making of consequential orders (if any) under s 438(2) of the LP Act will not arise; (2) if unsatisfactory professional conduct or professional misconduct is established, the precise nature and scope of the finding will be critical in determining what consequential orders should be made under s 438(2); and (3) the determination, as a separate issue, of whether the practitioner engaged in unsatisfactory professional conduct or professional misconduct will thereby confine the scope of the inquiry about what consequential orders (if any) should be made under s 438(2) and provide the best prospect for an agreement between the parties on that matter [176].
(b) The powers under s 438(2) of the LP Act are only exercisable by the Tribunal if, having completed a 'hearing', the Tribunal is 'satisfied' that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct [196].
(c) A finding by the Tribunal, in the exercise of its jurisdiction under s 438(1) of the LP Act, that a practitioner has engaged in unsatisfactory professional conduct or professional misconduct is in the nature of a 'final declaration', even though consequential orders in relation to penalty and costs have not yet been determined [199].
(d) The doctrine of estoppel applies to a tribunal which has jurisdiction finally to decide questions arising between the parties. The doctrine has been applied in disciplinary proceedings. An estoppel may arise even though the rules of evidence and other legal procedures do not apply to the tribunal's proceedings. An estoppel will not arise unless the tribunal's decision was made within jurisdiction. The decision of a tribunal may be final for estoppel purposes even though the tribunal has power to rescind, alter or amend the decision [202].
(e) The decision of a tribunal may be final for one purpose but not another. Accordingly, an order which determines a preliminary issue is final for estoppel purposes even though the decision may be interlocutory for appeal purposes [203].
(f) As Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ observed in Bass v Permanent Trustee Co Ltd:[20]
Once an issue is determined at the interlocutory stage, and the trial continues, the primary judge's hand is tied in respect of all matters of fact and law involved in that determination. In Fidelitas Shipping Co Ltd v V/O Exportchleb, Diplock LJ pointed out :
'Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues. Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot subsequently in the same suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is by way of appeal from the interlocutory judgment and, where appropriate, an application to the appellate court to adduce further evidence'. (emphasis added)
(g) The question of whether a tribunal's decision is final for estoppel purposes depends upon the nature of the order in the context of the statutory framework applicable to the tribunal. Whether the tribunal exercises a function analogous to that of an inferior court is a relevant consideration. If a tribunal's statutory objectives include determining disputes quickly, cheaply and with minimal formality, those objectives would not be advanced by a construction of the statutory framework which prevents the doctrine of issue estoppel from ever applying [205].
(h) Where the Tribunal has completed a hearing in accordance with the LP Act and the SAT Act and the Tribunal has made and authenticated orders to the effect that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct before the Tribunal considers what consequential orders should be made under s 438(2) of the LP Act, those authenticated orders involve a final determination by the Tribunal of the issue of whether the practitioner engaged in unsatisfactory professional conduct or professional misconduct [207].
(i) A finding by the Tribunal in the exercise of its jurisdiction under s 438(1) of the LP Act that a practitioner has engaged in unsatisfactory professional conduct or professional misconduct is a 'decision' (as defined in s 3 of the SAT Act) which, by s 82(1) of the SAT Act, 'comes into effect immediately after it is given'. It is a decision which has the character of finality rather than provisionality, given that the finding of unsatisfactory professional conduct or professional misconduct can only be made if the Tribunal is 'satisfied' that the practitioner engaged in the specified conduct. It does not have the character of an 'interlocutory or interim order' within the meaning of s 443(1) of the LP Act. The statutory scheme embodied in the LP Act read with the SAT Act does not provide for progressive and evolving decision‑making in relation to the determination of unsatisfactory professional conduct or professional misconduct. The Tribunal's decision is final, even though the power under s 438(2) has not been exercised and the exercise by the Tribunal of its jurisdiction under s 438(1) is not completed until the power under s 438(2) has been exercised [208].
(j) A decision by the Tribunal that a practitioner has engaged in unsatisfactory professional conduct or professional misconduct creates an estoppel in that the parties are bound by the decision, unless and until (1) the decision is varied or revoked if and insofar as the SAT Act expressly or impliedly permits its variation or revocation, or (2) the decision is quashed on appeal or review. The parties cannot, in the context of the exercise by the Tribunal of the consequential powers under s 438(2) of the LP Act, advance argument or adduce further evidence directed to showing that the decision was wrong [209].
(k) The Tribunal does not have a general express power under the SAT Act to revoke or vary any or all of its decisions. There are, however, specified express powers. See s 443 of the LP Act; s 34(1) of the SAT Act; s 83 of the SAT Act; and s 84 of the SAT Act [225] - [236].
(l) The Tribunal does not have a general implied power under the SAT Act to revoke or vary authenticated orders which dispose of an issue or aspect of the proceedings as to whether the practitioner engaged in unsatisfactory professional conduct or professional misconduct [237].
(a) A determination by the Tribunal that a legal practitioner has engaged in professional misconduct is 'final, conclusive and binding on the parties unless and until it is set aside on appeal or review' [346].
(b) The estoppel that arises from a finding by the Tribunal that a practitioner has engaged in professional misconduct is a cause of action estoppel, or an analogue of a cause of action estoppel, and not merely an issue estoppel [350].
(c) The Tribunal is a creature of statute and, consequently, any power of the Tribunal to set aside or vary a decision by the Tribunal that a practitioner has engaged in professional misconduct must be found within the SAT Act or the LP Act [380].
(d) There is no express statutory power to vary an order by the Tribunal that a legal practitioner has engaged in professional misconduct [381].
(e) There is no implied statutory power to vary an order by the Tribunal that a legal practitioner has engaged in professional misconduct [382] ‑ [384].
(a) the decision is varied or revoked by the Tribunal if and insofar as the SAT Act or the LP Act expressly or impliedly permits its variation or revocation; or
(b) the decision is quashed on appeal or review.
(a) the power under s 34(1) of the SAT Act to give directions in a proceeding; or
(b) the power under s 83 of the SAT Act to 'correct' a decision pursuant to, in effect, a statutory 'slip rule'; or
(c) any other provision of the SAT Act which permits the Tribunal in limited and confined circumstances to vary or review its own decisions.
(a) the findings of the Tribunal that the respondent's conduct in sending the 17 June 2016 and 29 June 2016 letters fell substantially short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner; and
(b) the findings sought by the Committee in relation to the respondent's conduct in sending those letters, namely that the respondent's conduct was such as to be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence or, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence,
It is fundamental that an appeal must be against the result to which a decision maker has come, namely the order or declaration made or other relief given, not directly against the conclusions reached by the decision maker which led to that result, although of course any flaws in those conclusions may provide the means of impeaching the result. A litigant cannot therefore, save perhaps in very exceptional circumstances, bring an appeal when they have been entirely successful and do not wish to alter the result. The successful litigant cannot seek to have the appeal body overturn unfavourable factual or legal conclusions made on the journey to that result which have had no significant impact on where the decision maker ultimately arrived. In short, there is no right of appeal against the reasons for a judgment, only against the judgment itself (Lake v Lake [1955] P 336 (CA) at pp 343 ‑ 344 per Evershed MR).
Alleged questions of law raised in respect of substituted ground 5: the Committee's submissions
(a) at [88] of its reasons, the Tribunal identified the Committee's allegations regarding the information summons the subject of ground 2 of Annexure A of the application and, at [89] of its reasons, identified the Committee's allegations regarding the document summons the subject of ground 3 of Annexure A;
(b) at [183] of its reasons, the Tribunal identified the Committee's allegations regarding the information summons the subject of ground 3 of Annexure B to the application and, at [184] of its reasons, the Tribunal identified the Committee's allegations regarding the document summons the subject of ground 4 of Annexure B;
(c) at [305], [316] and [340] of its reasons, the Tribunal found that the respondent's conduct in failing to respond to each summons fell short by a substantial degree of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner and that the respondent's conduct therefore constituted professional misconduct;
(d) at [307], [314], [340] and [343] of its reasons, the Tribunal found that the respondent's failure to comply with each of the summonses was without reasonable excuse; and
(e) at [303], [314], [340] and [343] of its reasons, the Tribunal said that it was unnecessary to make any finding as to why the respondent had failed to comply with each summons, beyond determining whether the respondent had a 'reasonable excuse' within the meaning of s 532(3) of the LP Act for that failure in each case.
(a) the Tribunal's failure to inform the parties, before the Tribunal delivered its reasons, that the Tribunal proposed not to determine whether the respondent had the purpose or substantial purpose alleged by the Committee; and
(b) the Tribunal's failure to give any reasons for its decision not to determine those questions (other than as stated in [303], [314], [340] and [343] of its reasons),
constituted a denial to the Committee of procedural fairness.
(a) As appears from [303], [305], [314], [316], [340] and [343] of its reasons, the Tribunal confined its consideration of the questions of whether the respondent's conduct concerning the summonses constituted professional misconduct to a consideration of the respondent's competence and diligence.
(b) The Tribunal did not address in its reasons whether, as alleged by the Committee in each of grounds 2 and 3 of Annexure A and grounds 3 and 4 of Annexure B to the application, the respondent's conduct was such as to be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence or, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence.
Alleged questions of law raised in respect of substituted ground 5: the respondent's submissions
(a) counsel conceded that the Tribunal erred in law by failing to notify the Committee (and the respondent) that the Tribunal did not intend to make a finding about the 'hindering purpose' allegation, or any finding about why the respondent had failed to comply with the summonses, other than in order to determine whether he had a reasonable excuse for not doing so; and
(b) counsel acknowledged that the Committee submitted (in reply) before the Tribunal that the only reasonable inference to be drawn from the respondent's conduct in relation to the summonses (including his defence of the allegations about them before the Tribunal) was that he 'avoided those information summonses precisely to delay and hinder the (Committee's) investigation into his conduct'.
(a) counsel conceded that the Tribunal failed to afford the Committee procedural fairness by failing to address in its reasons whether the respondent's conduct as found by the Tribunal met any or all of the components of the Committee's case;
(b) however, counsel argued that the Tribunal did determine that the respondent's conduct breached s 520(5) and s 532(3) of the LP Act and determined that the respondent was guilty of professional misconduct in relation to each summons.
Alleged questions of law raised in respect of ground 5: their merits
(a) the Tribunal denied the Committee procedural fairness in that the Tribunal failed to inform the parties that it contemplated not determining the Committee's allegations that the respondent's conduct in failing to comply with each summons would reasonably be regarded as disgraceful or dishonourable by practitioners of good repute and competence, such that the respondent is not a fit and proper person to engage in legal practice; and
(b) the Tribunal failed to afford the Committee procedural fairness by failing to consider each of those issues.
(a) to consider whether to find, as contended by the Committee at the liability hearing, that the respondent's conduct in failing to comply with each summons would reasonably be regarded as disgraceful or dishonourable by practitioners of good repute and competence, such that the respondent is not a fit and proper person to engage in legal practice;
(b) if thought fit, to make that finding; and
(c) if the Tribunal were to make that finding, to deal with the respondent, having regard to that finding, at the penalty stage of the proceedings,
without this court granting leave to appeal, allowing the appeal and setting aside, wholly or partly, one or more of the relevant orders made by the Tribunal on 21 June 2019.
The orders that this court should make in the appeal
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[1] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [49] (Buss JA; Wheeler & Pullin JJA agreeing).
[2] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72 [15] (Gaudron, Gummow, Hayne & Callinan JJ).
[3] Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [18] (French CJ, Gummow & Bell JJ).
[4] Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 [27] (French CJ).
[5] Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (NSW) [2011] HCA 41; (2011) 245 CLR 446 [5] (French CJ, Gummow, Crennan, Kiefel & Bell JJ).
[6] TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175, 178 (Gummow J).
[7] Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 55 SR (NSW) 243, 264 (Street CJ; Ferguson J agreeing).
[8] Executive Director of Health v Lily Creek International Pty Ltd [2000] WASCA 258; (2000) 22 WAR 510 [64] (Ipp J; Owen & Miller JJ agreeing).
[9] Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 [61] (Parker J).
[10] Fidock v Legal Profession Complaints Committee [2013] WASCA 108 [32] ‑ [36] (Martin CJ, Newnes & Murphy JJ).
[11] Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368 [200] (Buss P, Mitchell & Beech JJA).
[12] Legal Profession Complaints Committee v Rayney [2017] WASCA 78; (2017) 51 WAR 142.
[13] Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 [78] - [79] (Ipp JA; Mason P agreeing).
[14] Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492 [82] (Redlich JA).
[15] Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 [4] (Giles JA), [35] (Basten JA; Young CJ in Eq agreeing).
[16] Juul v Northey [2010] NSWCA 211 [243] (McColl JA; Basten JA relevantly agreeing and Campbell JA agreeing).
[17] Clodumar v Nauru Lands Committee [2012] HCA 22; (2012) 245 CLR 561 [66] (Heydon J).
[18] Comcare v Wuth [2018] FCAFC 13; (2018) 159 ALD 1 [25] (Flick J; Siopis J agreeing).
[19] Chang v Legal Profession Complaints Committee [No 2] [2020] WASCA 208; (2020) 56 WAR 263.
[20] Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 [57].
[21] Sakalo v The Medical Board of Western Australia [2002] WASCA 178 [43] ‑ [45] (Wheeler JA).
[22] Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55; [2008] 1 NZLR 13 [25].
[23] Young v Legal Profession Complaints Committee [2022] WASCA 52 [295] - [313].
(2010) 241 CLR 390
(2011) 245 CLR 446
(2000) 22 WAR 510
(2017) 52 WAR 368
(2017) 51 WAR 142
(2007) 17 VR 492
(2020) 56 WAR 263
(1995) 185 CLR 307
(2007) 33 WAR 361
(2001) 207 CLR 72
(2010) 241 CLR 320
(1988) 82 ALR 175
(1999) 21 WAR 56
(2012) 245 CLR 561
(1999) 198 CLR 334