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[2017] WASCA 78
Court of Appeal (WA)
2017-04-26
Martin CJ
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE -v- RAYNEY [2017] WASCA 78
BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Citation : LEGAL PROFESSION COMPLAINTS COMMITTEE and RAYNEY [2016] WASAT 142
Appeal against decision of State Administrative Tribunal dismissing proceedings brought by the Legal Profession Complaints Committee against the respondent for professional misconduct as an abuse of process - Where Legal Practice Board had cancelled respondent's practising certificate - Where respondent had successfully brought proceedings in the Tribunal for review of the Board's decision - Whether the Committee's proceedings constituted an abuse of process or were estopped because the Committee was seeking to pursue matters which the Board could and should have raised in its notice cancelling the respondent's practising certificate and its defence of the respondent's review proceedings - Whether the Committee's proceedings constituted an abuse of process because they could and should have been brought in tandem with the respondent's review proceedings - Whether the Committee was denied procedural fairness - Whether the Tribunal failed to take into account relevant considerations - Relationship between the Legal Practice Board and the Legal Profession Complaints Committee
Decision of the State Administrative Tribunal dismissing the appellant's proceedings set aside
Respondent's application to dismiss the appellant's proceedings dismissed
Matter remitted to the State Administrative Tribunal differently constituted for substantive hearing and determination
Aldi Stores Ltd v WSP Group Plc [2007] EWCA Civ 1260; [2008] 1 WLR 748
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Champerslife Pty Ltd v Manojlovski & Anor [2010] NSWCA 33; (2010) 75 NSWLR 245
Coffey v Secretary, Department of Social Security [1999] FCA 375; (1999) 86 FCR 434
Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 58 FLR 407
Federal Commissioner of Taxation v McCabe [1990] FCA 389; (1990) 26 FCR 431
Gill v Walton (1991) 25 NSWLR 190
Guidice v Legal Profession Complaints Committee [2014] WASCA 115
Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315
In the matter of HIH Insurance Ltd (in liq); De Bortoli Wines (Superannuation) Pty Ltd v McGrath [2014] NSWSC 774
Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130
Legal Profession Complaints Committee and Rayney [2016] WASAT 142
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271
Rayney and Legal Practice Board of Western Australia [2016] WASAT 7
Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109
Reichel v Magrath (1889) 14 App Cas 665
Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331
Slaveska v State of Victoria [2015] VSCA 140
Stuart v Goldberg Linde (a firm) [2008] ECWA Civ 2; [2008] EWHC 2325; [2008] 1 WLR 823
The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346
Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Young v Public Service Board [1982] 2 NSWLR 456
1 On 9 October 2015 the applicant, the Legal Profession Complaints Committee (the Committee), commenced proceedings in the State Administrative Tribunal (the Tribunal) against the respondent, Lloyd Patrick Rayney, who is a legal practitioner. In those proceedings the Committee sought a finding that Mr Rayney had engaged in professional misconduct (the Committee's proceedings). It will be necessary to identify the context in which those proceedings were commenced in the Tribunal in due course. On 19 December 2016 the Tribunal dismissed the Committee's proceedings on the ground that they were an abuse of process, for reasons which will be considered in detail below. The Committee applied for leave to appeal from that decision. For the reasons which follow, the application for leave to appeal should be granted, the appeal allowed, the decision of the Tribunal dismissing the proceedings commenced by the Committee set aside, Mr Rayney's application to dismiss the Committee's proceedings dismissed and the proceedings remitted to the Tribunal differently constituted for substantive hearing.
2 Much could and indeed has been written about the life of Mr Rayney since the death of his wife, Corryn, in August 2007. The chronology which follows will be limited to matters which have a direct bearing upon the issues which arise in this appeal.
3 In September 2007 Mr Rayney was charged with an offence under the Surveillance Devices Act 1998 (WA). In September 2008 that charge was withdrawn and Mr Rayney was charged with two offences under the Telecommunications (Interception and Access) Act 1979 (Cth) (the TIA charges).
4 In June 2012 the Committee opened a file with respect to an investigation of Mr Rayney's conduct. However, that investigation was deferred pending the trial of Mr Rayney on a charge that he wilfully murdered his wife, which commenced in July 2012. Mr Rayney was acquitted of that charge on 1 November 2012. The State appealed against that acquittal on 22 November 2012. That appeal was dismissed in September 2013.
5 In the meantime, on 16 November 2012, after Mr Rayney's acquittal but before the commencement of the State's appeal, the Legal Practice Board of Western Australia (the Board) gave written notice to Mr Rayney of its intention to cancel his practising certificate on the grounds specified in that notice, which was issued pursuant to s 56(2) of the Legal Profession Act 2008 (WA) (the LPA).
6 On 10 December 2012, Mr Rayney undertook to the Board that he would not practice law without giving a minimum of 42 days prior notice. Mr Rayney requested that the Board defer consideration of the question of whether or not his practising certificate should be cancelled and refrain from requiring him to file submissions with respect to the matters raised by the Board until such time as the Board met to determine that issue and in return for that undertaking the Board undertook that it would not take any action on its notice of intention to cancel Mr Rayney's practising certificate without first giving 21 days notice to Mr Rayney.
7 By letter dated 16 December 2013, the Committee gave Mr Rayney notice that it was investigating his conduct pursuant to s 421 of the LPA. In that letter eleven matters of possible misconduct were identified including, relevantly, illegal conduct by contravening the Surveillance Devices Act relating to covert recordings 'by the use of a dictaphone' of conversations with Corryn Rayney and others; and swearing a false affidavit and giving false testimony before Magistrate Flynn in November 2009 in connection with Mr Rayney's claims for legal professional privilege in respect of those recordings of conversations which were said to have been made in breach of the Surveillance Devices Act. In that letter the Committee sought an update of the current position relating to the TIA charges and a copy of the indictment and prosecution brief relating to those charges.
8 In February 2014 Mr Rayney's solicitors responded to the letter from the Committee declining to provide a copy of the indictment or the prosecution brief (for reasons enunciated in the letter) and proposing that the Committee investigation should be deferred until the TIA charges had been determined. The Committee did not press its request for documentation and did not require Mr Rayney to respond to the specific matters identified in its letter of 16 December 2013, thereby, in effect, acquiescing to Mr Rayney's request.
9 Mr Rayney was tried and acquitted of the TIA charges in April and May 2015. On 8 May 2015, which was the day after the TIA charges were dismissed, Mr Rayney's solicitors wrote to the Board inquiring what steps needed to be taken for Mr Rayney to resume legal practice. The letter also referred to the notice given by the Committee to the effect that the Committee was investigating Mr Rayney's conduct pursuant to s 421 of the LPA. In the letter, the solicitors inquired if they should write separately to the Committee, and whether the Committee's investigation was separate from the issues under consideration by the Board.
10 On 18 May 2015 the Board responded to that letter advising that the first step which must be taken by Mr Rayney to resume practice was to give to the Board the notice required pursuant to his prior undertaking, and that the matters under consideration by the Committee were separate, and that any inquiry with respect to those matters should be directed to the Committee.
11 On the same day (18 May 2015) Mr Rayney's solicitors wrote to the Board giving notice that he intended to attempt to re-engage in legal practice in 42 days time.
12 On 20 May 2015 the Committee wrote to Mr Rayney's solicitors referring to the deferral of the Committee's investigation pending the determination of the TIA charges, noting that those charges had been determined, and requesting Mr Rayney's response to each of the matters of alleged misconduct identified in its letter of 16 December 2013, other than three of those matters, which related specifically to the subject matter of the TIA charges. In relation to those three matters, the Committee requested copies of the trial transcript, indictment, prosecution brief, witness statements and exhibits relating to the trial of the TIA charges. The letter requested that the submissions be provided by 11 June 2015, and that the materials relating to the trial of the TIA charges be provided by 27 May 2015.
13 On 28 May 2015 Mr Rayney's solicitors wrote to the Committee requesting an extension of time for the provision of the submissions and materials, and querying the Committee's need for the materials relating to the trial of the TIA charges.
14 By letter dated 2 June 2015, the Board wrote to Mr Rayney confirming the receipt of notice to the effect that he proposed to re-engage in legal practice and enclosing another notice of its intention to cancel his practising certificate on the grounds set out in that notice, which was said to be in substitution for the notice previously issued by the Board on 16 November 2012. Those grounds included various aspects of Mr Rayney's alleged conduct, including the three matters to which the Committee had referred in its letter to Mr Rayney of 16 December 2013 and which I have identified at [7] above. The letter specified that any representations that Mr Rayney wished to make in relation to the cancellation of his practising certificate must be received by the Board not later than 24 June 2015.
15 On 8 June 2015 Mr Rayney's solicitors wrote to the Committee requesting an extension of time within which to respond to the matters raised by the Committee, in light of the notice issued by the Board, a copy of which was provided to the Committee by Mr Rayney's solicitors.
16 On 9 June 2015 the Committee wrote to Mr Rayney's solicitors reiterating its request for copies of the documents relating to the TIA charges and seeking information with respect to the precise extension of time sought by Mr Rayney in order to respond to the matters under investigation by the Committee.
17 By letter dated 11 June 2015 Mr Rayney's solicitors advised the Committee that documents relating to the TIA charges would be provided and again sought an extension of time within which to respond to the matters raised in the Committee's letter of 16 December 2013, without identifying the extra time sought. The Committee responded to that letter by letter of the same date, agreeing to extend the time for a response to the matters identified in its letter of 16 December 2013 (other than the three matters relating specifically to the TIA charges) to 8 July 2015.
18 On 12 June 2015 Mr Rayney's solicitors provided the Committee with the transcript, prosecution brief and exhibits relating to the trial of the TIA charges.
19 By letter dated 24 June 2015 to Mr Rayney's solicitors, the Committee advised that it was continuing to investigate the three matters relating to the TIA charges identified in its letter of 16 December 2013, and that the submissions to be provided by Mr Rayney should therefore address all matters identified in the Committee's letter of 16 December 2013.
20 On 24 June 2015 Mr Rayney provided the Board with his written representations in response to its notice of intention to cancel his practising certificate. On the same day, Mr Rayney's solicitors wrote to the Committee advising that he claimed legal professional privilege in relation to documents which the Committee had sought from a number of legal firms which had previously acted for him. On 26 June 2015 Mr Rayney's solicitors wrote again to the Committee seeking a response to that letter. In the days which followed, correspondence was exchanged between the Committee and Mr Rayney's solicitors relating to the inspection by the Committee of a supplementary appeal book relating to earlier appellate proceedings involving Mr Rayney's claims for legal professional privilege.
21 On 30 June 2015 Mr Rayney's solicitors provided the Committee with copies of the materials which had been provided to the Board on 24 June 2015 in response to its notice of intention to cancel Mr Rayney's practising certificate.
22 On 7 July 2015 Mr Rayney's solicitors provided the Committee with copies of further materials provided to the Board in response to its notice of intention to cancel Mr Rayney's practising certificate. Further, by letter to the Committee dated 9 July 2015, Mr Rayney's solicitors provided his submissions in response to the eleven matters identified in the Committee's letter of 16 December 2013.
23 On 14 July 2015 the Committee requested copies of certain documents from Mr Rayney's solicitors, which were provided to the Committee on 16 July 2015.
24 On 17 July 2015 the Board gave Mr Rayney notice of its decision that his practising certificate would be cancelled on and from 21 July 2015. The notice, which was served pursuant to s 56(4) of the LPA, stated the reasons for the Board's decision. Those reasons did not include any reference to the three matters to which the Committee had referred in its letter to Mr Rayney of 16 December 2013 which I have identified at [7] above.
25 On 24 July 2015 Mr Rayney applied to the Tribunal (Mr Rayney's proceedings) for review of the Board's decision to cancel his practising certificate. By letter dated 28 July 2015, the Committee wrote to Mr Rayney's solicitors requesting a copy of that application. A copy was provided to the Committee by email from Mr Rayney's solicitors dated 30 July 2015.
26 On 30 July 2015 the Committee wrote to Mr Rayney's solicitors referring to the overlap between the matters under investigation by the Committee and the matters raised for determination by Mr Rayney's proceedings. In that context the Committee requested that the interim orders sought by Mr Rayney be varied to include the capacity for it to obtain information relating to Mr Rayney's proceedings, advising that the request was made 'in the interests of its investigation' and was 'not indicative of whether the Committee might, at some stage, seek some role in the review proceedings themselves'.[1] Mr Rayney's solicitors responded to that letter on 31 July 2015 recording that they had been 'concerned for some time at the overlap between' the Committee's investigation and the matters under review by the Tribunal. In the letter, the solicitors foreshadowed that if the Committee were to seek to intervene in Mr Rayney's review proceedings, Mr Rayney would submit that the Committee should not be separately represented from the Board.
27 On 10 August 2015 the Committee wrote to Mr Rayney's solicitors advising that the Committee was yet to determine any aspect of the matters it was investigating, but advising that if the Committee did decide to refer conduct of Mr Rayney to the Tribunal pursuant to s 424(1)(c) and s 428 of the LPA, those matters might overlap with the matters raised in Mr Rayney's proceedings and might also involve a broader range of conduct. The letter specifically noted that the matters the subject of investigation by the Committee were broader in ambit than the matters raised in Mr Rayney's proceedings. In that context the author of the letter wrote:[2]
The Committee is concerned that the present circumstances may result in a multiplicity of hearings. Obviously, in terms of the public interest and the interests of the parties, it would be highly desirable to avoid a multiplicity of hearings.
28 The letter went on to advise that in the ordinary course it was likely that the Committee would not be in a position to make a determination on the question of whether any matters should be referred to the Tribunal for some time, but in order to clarify the position as soon as possible, the Committee would increase and prioritise resources to expedite the investigation. The letter set out a timetable which proposed that the Committee make a decision with respect to the conduct investigation by 18 September 2015 and, if the Committee resolved to refer any aspect of Mr Rayney's conduct to the Tribunal, to file an application to that effect in the Tribunal by 25 September 2015.
29 The author of the letter went on to observe that in the light of that timetable, if an application by the Committee to the Tribunal were to be heard simultaneously with Mr Rayney's review proceedings, a hearing in September or October would not be feasible. The letter foreshadowed that these matters would be drawn to the attention of the Tribunal at a directions hearing to be held on 12 August 2015.
30 Mr Rayney's solicitors responded to that letter by letter to the Committee dated 11 August 2015. In that letter the solicitors advised that Mr Rayney would oppose deferring the listing of his review proceedings because his financial circumstances were such that he needed to resolve the issue of his ability to practice as quickly as possible. The letter went on to assert that the question of whether there would be any 'overlap' or 'multiplicity of hearings' was entirely speculative.[3]
31 As foreshadowed in the correspondence, the Committee applied to intervene in Mr Rayney's proceedings at a directions hearing before the Tribunal on 12 August 2015. In the course of that hearing, counsel for the Committee provided the Tribunal with an affidavit sworn by an officer of the Committee deposing to the matters to which I have referred, and annexing the relevant correspondence.
32 On 25 August 2015 the Committee issued two summonses requiring Mr Rayney to provide written information verified on oath and to produce certain specified documents by 8 September 2015. In the weeks following the issue of those summonses, Mr Rayney sought various extensions of time for the provision of the information and documents. In the result, the time for compliance with the summonses was extended to 29 September 2015, and the information and documents sought were provided on that date.
33 On 29 September 2015 the Committee again applied for leave to intervene at a directions hearing held in Mr Rayney's proceedings. Counsel for the Committee handed up to the Tribunal a further affidavit sworn by an officer of the Committee setting out the progress and likely timetable for completion of the Committee's investigations. At that hearing, and with knowledge of the matters to which I have referred, the Tribunal listed Mr Rayney's proceedings for hearing over four days commencing on 20 October 2015.
34 By letter dated 9 October 2015, the Committee gave Mr Rayney's solicitors notice of its decision to refer Mr Rayney's alleged conduct in respect of seven specified matters to the Tribunal pursuant to s 428 of the LPA, and that the Committee had determined to take no further action in relation to other specified matters which the Committee had investigated. Also on 9 October 2015 the Committee commenced proceedings in the Tribunal referring Mr Rayney's conduct in respect of eight specified matters[4] to the Tribunal, seeking an order that Mr Rayney had engaged in professional misconduct (the Committee's proceedings).
35 On 14 October 2015 the Tribunal held directions hearings in both Mr Rayney's proceedings and the Committee's proceedings. As foreshadowed in earlier correspondence, counsel for Mr Rayney advised the Tribunal that Mr Rayney wished to proceed with the listed hearing of his review proceedings notwithstanding the Committee's referral of his conduct to the Tribunal. The Tribunal confirmed that Mr Rayney's review proceedings would be heard on the listed date, and made directions programming the future conduct of the Committee's proceedings which did not include the listing of those proceedings for hearing.
36 Mr Rayney's review proceedings were heard on the listed dates, and on 10 February 2016 the Tribunal delivered its reasons for concluding that his application for a review should be allowed and the decision of the Board to cancel his practising certificate set aside.
37 Following the publication of the Tribunal's reasons for upholding his application for review, by letter dated 10 March 2016 Mr Rayney's solicitors made representations to the Committee with respect to the withdrawal of the matters which had been referred to the Tribunal. The Committee responded to those representations on 24 March 2016 by advising that it would withdraw all grounds other than three, which correspond to the three specific grounds which I identified in the Committee's letter of 16 December 2013, namely:
(a) misconduct by recording conversations between himself and his then wife on a handheld recording device in contravention of the Surveillance Devices Act;
(b) swearing an affidavit which he knew to be false in the course of proceedings in the Magistrates Court relating to his claim of legal professional privilege; and
(c) giving evidence which he knew to be false in the proceedings in the Magistrates Court relating to his claim of legal professional privilege.
38 The matters no longer pursued by the Committee correspond generally to the matters heard and determined by the Tribunal in Mr Rayney's proceedings. On 4 April 2016 the President of the Tribunal granted leave to the Committee to withdraw the abandoned grounds.
39 On 26 April 2016 Mr Rayney brought an application for summary dismissal of the Committee's proceedings on the grounds that they constituted an abuse of process, and for production of documents by the Board.
40 On 6 May 2016 the President ordered that the Board produce documents to the Tribunal by 27 May 2016.
41 Mr Rayney's application for dismissal of the Committee's proceedings as an abuse of process was heard on 11 August 2016. On 19 December 2016 the President of the Tribunal upheld that application and dismissed the Committee's proceedings. On 13 January 2017 the Committee appealed from that decision. An order for the expedited hearing of that appeal was made on the basis of representations from Mr Rayney's solicitors to the effect that the outcome of the appeal had the capacity to affect the conduct of defamation proceedings brought by Mr Rayney against the State of Western Australia, the hearing of which was imminent, and the appeal was heard on 22 February 2017. At the conclusion of the hearing of the appeal, the court advised the parties of the decision which would be made in the matter, but made no orders disposing of the appeal prior to the publication of these reasons because of possible prejudice to Mr Rayney in relation to the exercise of his right to seek leave to appeal from this decision.
42 It will be necessary to deal with specific aspects of the Tribunal's reasons for decision in the context of each specific ground of appeal. However, it is desirable to place those grounds in their context by providing a general review of the approach taken by the Tribunal in its reasons.
43 After providing a brief chronology and referring to two provisions of the State Administrative Tribunal Act 2004 (WA) (the SAT Act), including the provision which enables the Tribunal to dismiss a proceeding on the ground that it is an abuse of process, the Tribunal referred to various authorities relating to the categories of abuse of process, including cases relating to the distinction between estoppel arising from privity of interest and the broader concept of abuse of process.
44 In this context the Tribunal held that 'a failure to have proceedings heard in tandem may constitute an abuse of process'.[5] Ground 3 of the appeal asserts that the Tribunal's reasons should be construed as concluding that a failure by a second litigant to have its proceedings heard in tandem with earlier proceedings to which it was not a party, without more, constitutes an abuse of process which is said to be an error of law in the absence of the establishment of a 'relevant connection' or a 'sufficient identification' between the second litigant and the party to the earlier proceedings.
45 The Tribunal's reasons then replicate various relevant provisions of the LPA, including some of the provisions relating to the constitution and functions of the Board and the Committee. In that context the Tribunal concluded:[6]
Although the [Committee] has separate functions it is still a committee of the Board. Accordingly, the [Committee] is a privy of the Board. Its actions cannot be considered in isolation from those of the Board. The fact that the Board must not direct or impose any requirements on the [Committee] does not lead to the conclusion that the steps taken by and findings made by the Board, or the Tribunal on review, are irrelevant to the [Committee]. Nor can the Tribunal ignore those findings when considering a complaint.
...
It would be an error to conclude that because the Board and the [Committee] have separate functions they are to be regarded as operating in separate silos. They are both bodies constituted by the same Act, one of the purposes of which is the regulation of legal practice in Western Australia.
This is the only passage in the Tribunal's reasons enunciating the reason for the Tribunal's conclusion that the Committee is a privy of the Board - namely, that it is a committee of the Board.
46 The conclusion that the Committee is a privy of the Board is challenged by ground 1 of the appeal.
47 The Tribunal then considered the provisions of the LPA relating to the disclosure of information and concluded that there was 'both a practical and a statutory basis for the exchange of information between the Board and the [Committee]'.[7]
48 After referring to material produced by the Board, the Tribunal found that, at least from September 2014, the Board and the Committee:[8]
49 The Tribunal addressed the relevance of this exchange of information in the following passage of its reasons:[9]
The exchange of information between the Board and the [Committee] during the course of their respective inquiries into Mr Rayney is relevant to whether there was in fact an abuse of process by the [Committee]. Any requests for information or documents from Mr Rayney by the [Committee] need to be considered in the light of the fact that the [Committee] had access to documents provided to the Board by Mr Rayney.
50 However, in response to a submission to the effect that the lack of independence of the Board and the Committee in the conduct of their respective functions relating to Mr Rayney was 'unfair and prejudicial', the Tribunal observed:[10]
The Tribunal does not accept that there was any unfairness to Mr Rayney in the exchange of the information because that exchange is part of the Board's and the [Committee's] statutory functions as parts of the same regulatory framework.
51 The Tribunal then addressed various statutory provisions relating to the functions of the Board, the functions of the Committee, the role of the Tribunal in relation to disciplinary proceedings involving legal practitioners and the role of the Supreme Court in relation to such proceedings. After referring to and generally accepting a number of propositions advanced by the Committee with respect to the distinct and exclusive functions of each of the Board and the Committee, the Tribunal observed:[11]
[C]onsideration of whether or not there has been an abuse of process requires a consideration not of whether a party could commence proceedings, or take a step in proceedings, but whether it should.
Accordingly, the fact that the [Committee] has power to take a particular step (for example, to initiate proceedings), does not exclude an inquiry as to whether it should take that step.
The question is whether the actions of the [Committee], although not inconsistent with the literal application of the [LPA], would nevertheless be regarded as unjustifiably oppressive or bring the administration of justice into disrepute with right thinking people.
As Mr Rayney submitted, in the present case, what the [Committee] seeks to pursue replicates that which was pursued by the Board. It merely approaches establishing the same factual and legal determinations (that Mr Rayney is not a fit and proper person to continue to practise) from a different legislative path (s 403(2) of the [LPA]).
The [Committee's] affidavit in opposition
In the [Committee's] affidavit in opposition to the s 47 proceedings, rather than seeking to offer any explanation for its conduct, the [Committee] has simply exhibited a series of documents to Mr Pope's affidavit. The [Committee] seems to assert that this constitutes a sufficient explanation. It is not. The [Committee] is a public disciplinary body. It is not a private individual or corporation. As such, it owes an explanation to this Tribunal for the use of the Tribunal's processes when its conduct is challenged.
52 Under the heading 'Background', the Tribunal then set out the sequence of chronological events which I have set out above, although, of course, in rather different terms. In that context the Tribunal held:[12]
[I]t could not seriously be doubted that at this point, 16 December 2013, the [Committee] had formed the view that it was ultimately going to file a complaint with the Tribunal. To suggest otherwise is fanciful.
53 I digress to observe that this conclusion is contrary to the uncontradicted affidavit evidence of an officer of the Committee who is also a legal practitioner[13] and is inconsistent with the repeated assertions made on behalf of the Committee in the correspondence from the Committee to Mr Rayney's solicitors which I have referred to above. No reasons are given for this finding, or for the Tribunal's apparent rejection of the evidence to which I have referred. Counsel for Mr Rayney accepted that the proposition that the Commission had by 16 December 2013 resolved to refer the matter to the Tribunal was not put to the Tribunal on Mr Rayney's behalf.[14] Counsel for the Committee advised the court that this finding had not been challenged in the grounds of appeal because it was not material to the Tribunal's ultimate conclusion.[15] As that proposition is correct, it is unnecessary to determine whether or not this finding was open to the Tribunal on the evidence before it, or whether the Tribunal departed from the principles of procedural fairness in making this finding.
54 After referring to Mr Rayney's acquittal on the TIA charges on 7 May 2015, under the heading 'Delay', the Tribunal observed:[16]
Both parties agreed that to this point no fault could be attributed to either party for the delay in proceeding with the s 421 Notice and the s 56(2) Notice until Mr Rayney's criminal proceedings had concluded.
The Tribunal agrees that no fault could be attributed to either party up to this point. However, after this point, the question of what could have been done and should [have] been done is a very live issue.
55 The proposition that delay by the Committee after the determination of the TIA charges was 'a very live issue' in the proceedings before the Tribunal is challenged by ground 2 of the appeal.
56 The Tribunal then referred to the terms of the notice issued by the Board on 2 June 2015 pursuant to s 56 of the LPA, and compared the grounds upon which that notice was issued to the matters to which the Committee had referred in its letter to Mr Rayney of 16 December 2013 (which it described as the s 421 notice). The Tribunal concluded:[17]
The factual matters in the s 421 Notice and the s 56(2) Notice are the same. Those facts arise out of the very same pattern of conduct alleged against Mr Rayney in each notice.
There is no reasonable explanation offered by the [Committee] as to why the resolution of the [Committee's] s 421 Notice and the Board's s 56(2) Notice could not have proceeded in tandem from this point on with the matters being heard together. Indeed, the Tribunal is unable to discern any such explanation in the evidence before it.
57 The inferential finding, made explicitly in later portions of the Tribunal's reasons, to the effect that the Committee had unreasonably failed to ensure that its reference of Mr Rayney's conduct to the Tribunal was heard in tandem with Mr Rayney's review proceedings is challenged by a number of the grounds of appeal.
58 In the context of its chronological recitation of the events which occurred in June and July 2015, the Tribunal observed:[18]
The long delay between the events leading to the complaint and the s 421 Notice made it urgent that the allegations which had the potential to end Mr Rayney's professional career be considered and resolved promptly.
It is also important to bear in mind the [Committee's] duty under s 431 of the [LPA] to 'deal with complaints as efficiently and expeditiously as is practicable'.
59 After referring to the notice given by the Board to Mr Rayney of the cancellation of his practising certificate, the Tribunal noted that the Board had not pursued all of the allegations made in the notice which the Board had given of its intention to cancel Mr Rayney's practising certificate, and in particular had not pursued the allegations relating to Mr Rayney's breach of the Surveillance Devices Act by using a handheld dictaphone to covertly record conversations with his wife, and the allegations with respect to the making of false statements in an affidavit and in evidence given in relation to Mr Rayney's claims for legal professional privilege in respect of those recordings and having knowingly made a false claim for privilege in relation to those recordings (which the Tribunal described collectively as 'the balance allegations'). In that context the Tribunal rejected submissions made by the parties with respect to inferences that should be drawn from the Board's failure to pursue those allegations. However, it observed:[19]
The [Committee] did not seek to provide an explanation nor invite the Board to provide an explanation as to why the Board did not pursue the Balance Allegations. No explanation was offered in the Board Proceedings.
The Board is a public body charged under the [LPA] with considering whether a practitioner should hold a practising certificate. It remains an unexplained and inexplicable decision by the Board not to pursue the Balance Allegations given that a failure to pursue them had the potential to leave a resolution of those matters outstanding.
60 After referring to the Committee's letter to Mr Rayney's solicitors of 10 August 2015 the Tribunal observed:[20]
The [Committee's] letter of 10 August 2015 stated the obvious, namely, that there was a significant factual overlap between the review of the Board's s 56(2) Notice and the [Committee's] s 421 Notice.
The table above at [135] [sic] illustrates the similarity between the s 56(2) Notice and the s 421 Notice.
No explanation was offered by the [Committee] as to why it took a month to reply to Mr Rayney's submission.
It is extraordinarily difficult to understand the timetable prepared in the [Committee's] letter of 10 August 2016 and why all of those matters had not been attended to or investigated by the time the Board issued its s 56(2) Notice.
The [Committee] has offered no explanation why the [Committee] had not conducted its investigation on, or within a week of, 2 June 2015 or even by the end of June 2015. If it had done so, there is no plausible reason why the [Committee] could not have had its case against Mr Rayney ready for hearing at the same time as the Board's case.
What is even more difficult to understand is why, in the light of s 428(2) of the [LPA], which permits a complaint to be made to the Tribunal without an investigation, the [Committee] even found it necessary to conduct an investigation before referring a complaint about Mr Rayney to the Tribunal.
The [Committee] offered no explanation as to why it could not and should not have commenced proceedings.
61 I digress to observe that in this portion of the reasons the Tribunal erroneously refers to Mr Rayney's proceedings as proceedings for the review of the s 56(2) notice issued by the Board, whereas in fact those proceedings were for review of the cancellation notice issued pursuant to s 56(4) of the LPA. As the Tribunal had noted in its reasons, the notice issued by the Board pursuant to s 56(4) did not rely upon a number of the matters asserted in the notice issued pursuant to s 56(2). It seems clear that this is not merely a typographical error, because the table at [134] of the Tribunal's reasons compares the notice issued by the Board pursuant to s 56(2) with the letter sent to Mr Rayney by the Committee in December 2013, rather than comparing the cancellation notice issued by the Board pursuant to s 56(4) with the letter sent by the Committee approximately 18 months earlier.
62 This portion of the Tribunal's reasons is challenged by various grounds of appeal.
63 After referring to Mr Rayney's opposition to any deferral of the hearing of his review proceedings the Tribunal observed:[21]
The [Committee's] failure to be in a position to have its application heard with the Board Proceedings is not excused by Mr Rayney's request for a deferral.
64 This observation is challenged by ground 5 of the appeal.
65 After referring to the summons issued to Mr Rayney on 25 August 2015 by the Committee, the Tribunal observed:[22]
There is no explanation from the [Committee] as to why it was necessary for the summons of 25 August 2015 to be issued in the context of the [Committee] Proceedings. All of the requests for written information could have been dealt with in crossexamination.
66 This observation, and other portions of the Tribunal's reasons to the general effect that it considered any investigation by the Committee to be 'unnecessary'[23] are challenged by ground 4 of the appeal.
67 After referring to the commencement of proceedings in the Tribunal by the Committee, the Tribunal recorded that:[24]
Immediately after the commencement of the [Committee's] Proceedings, the [Committee] sought an urgent directions hearing. That directions hearing was scheduled for 14 October 2015.
The [Committee] raised with the Tribunal the partial overlap between the issues in Mr Rayney's review proceedings and the [Committee's] Proceedings. The [Committee] submitted that it did so to allow Mr Rayney, and the Tribunal, to decide whether arrangements should be made to avoid a multiplicity of hearings given the imminent listed hearing in Mr Rayney's review proceedings.
Mr Rayney, by counsel, informed the Tribunal that he wished to proceed with his review proceeding. The Board indicated that it was also prepared to proceed. Accordingly, the Tribunal determined that Mr Rayney's review proceedings would be heard commencing 20 October 2015.
68 Having earlier referred to the failure of the Board to include within the notice of cancellation of Mr Rayney's practising certificate[25] a number of the matters to which reference was made in the notice given to Mr Rayney of the Board's intention to cancel his practising certificate,[26] the Tribunal expressed the view that it was beyond doubt that the Board could not now proceed to rely upon the matters which it failed to press in the cancellation notice if it were to now issue a fresh notice of intent to cancel Mr Rayney's practising certificate pursuant to s 56(2) of the LPA. The Tribunal then observed:[27]
The [Committee] is a privy of the Board. In determining to proceed with the Balance Allegations the Board bound the [Committee]. This arises not by reason of any direction or imposition of the Board but as a matter of law. The actions of the Board bind the [Committee] as its privy in relation to the factual allegations the subject of the s 56(2) Notice and the s 56(4) Notice. Those factual matters could have and should have been dealt with by the Board. The Board's failure to do so was unreasonable in the circumstances. The [Committee] cannot overcome the fact that it is a privy of the Board. On that ground alone the [Committee's] proceedings should be struck out as an abuse of process.
69 It is clear that the Tribunal considered this conclusion to be a sufficient basis, of itself, for dismissal of the Committee's proceedings. What is less clear is whether that conclusion was arrived at through the application of the principles of estoppel, as clearly connoted by the reasoning process to the effect that the actions of the Board bound the Committee as its privy, or by reference to the application of the principles relating to abuse of process, as the last sentence of the paragraph would suggest.[28] At all events this conclusion is challenged by ground 1 of the appeal.
70 The Tribunal then referred to the matters the subject of the revised reference to the Tribunal by the Committee, following the withdrawal of the matters determined by the Tribunal in the review proceedings commenced by Mr Rayney. The Tribunal accepted a submission from the Committee to the effect that each of the remaining matters had, at its core, the issue of whether the dictaphone recordings were made with Mrs Rayney's knowledge and consent.[29] In that context the Tribunal observed:[30]
In the Board Proceedings, the Board stated that the use of the dictaphone to record conversations between Mr and Mrs Rayney was not an issue before the Tribunal. That statement is correct to the extent that, because the Board did not pursue an allegation of a breach of the Surveillance Devices Act in relation to the use of the dictaphone, it was unnecessary to make a formal finding as to whether it was done with or without Mrs Rayney's consent (see Rayney at [122]).
However, it was the case that the facts and circumstances surrounding the use of the dictaphone and whether the recordings were made with Mrs Rayney's consent were the subject of extensive evidence before the Tribunal in the Board Proceedings.
...
The Tribunal accepts that Mrs Rayney's consent to Mr Rayney's use of a dictaphone to record their conversations was very much a live issue.
71 In support of that conclusion the Tribunal set out a lengthy passage of the transcript of the cross-examination of Mr Rayney by counsel for the Board.[31]
72 The proposition that the question of whether the dictaphone recordings were made without consent was very much a live issue in Mr Rayney's proceedings is challenged by ground 4 of the appeal.
73 In response to a submission from the Committee to the effect that the proceedings which the Committee had commenced in the Tribunal were different in nature and substance from Mr Rayney's review proceedings, the Tribunal observed that it was required to consider substance over form, and the fact that the Committee was not a party to Mr Rayney's proceedings missed the point, which concerned the failure of the Committee to ensure that the matters were heard together by ensuring that its proceedings were heard in tandem with Mr Rayney's proceedings on 20 October 2015.[32] These conclusions are challenged by ground 6 of the appeal.
The Board Proceedings and the [Committee's] Proceedings fall squarely within the concept of double jeopardy, identified by Gleeson CJ in Gill set out above, in that the complaint in the [Committee's] Proceedings arose out of the same pattern of conduct as gave rise to the Board Proceedings and there is a substantial degree of factual overlap between the issues.
75 This conclusion is challenged by ground 4 of the appeal.
76 The next portion of the Tribunal's reasons reiterates the failure of the Committee to explain what the Tribunal considered to be its delay in the prosecution of its proceedings; the Committee's failure to make a complaint directly to the Tribunal so as to ensure that its proceedings and Mr Rayney's review proceedings were heard together; and conclusions previously expressed to the effect that the Committee should and could have been in a position to proceed with the hearing of the proceedings which it had commenced in the Tribunal at the same time as the hearing of Mr Rayney's proceedings. In this context the Tribunal reiterated its earlier conclusion to the effect that Mr Rayney's opposition to any deferral of the hearing of his review proceedings did not excuse the multiplicity of hearings which would result if the Committee's proceedings were allowed to continue because those proceedings should have been ready to be heard in tandem with Mr Rayney's review proceedings. As I have noted, this process of reasoning is challenged by a number of the grounds of appeal, including grounds 5 and 6.
77 Under the heading 'Bringing the administration of justice into disrepute' the Tribunal observed:[34]
Our legal system does not permit allegations to be dealt with piecemeal. It is a fundamental principle of justice that allegations with a common factual basis should be dealt with together. A person should not have to face multiple suits brought by the same entity. To do so brings the administration of justice into disrepute.
78 The Tribunal's reference to a person facing multiple suits brought by the same entity suggests, consistently with one view of the reasons given by the Tribunal at [215],[35] that the Tribunal was applying principles of estoppel based upon privity between the Committee and the Board.
79 In the concluding summary of its reasons, the Tribunal set out a matrix[36] showing and comparing the aspects of Mr Rayney's alleged conduct relied upon:
(a) by the Committee in the letter advising that it proposed to investigate Mr Rayney's conduct pursuant to s 421 of the LPA on 16 December 2013;
(b) by the Board in its notice of intention to cancel Mr Rayney's practising certificate issued pursuant to s 56(2) of the LPA on 2 June 2015;
(c) by the Board in its notice of cancellation of Mr Rayney's practising certificate issued pursuant to s 56(4) of the LPA on 17 July 2015;
(d) by the Committee in its application to the Tribunal on 9 October 2015;
(e) by the Committee in its revised application to the Tribunal filed on 11 April 2016, following withdrawal of the matters determined by the Tribunal in Mr Rayney's proceedings.
80 The table shows, consistently with the facts narrated earlier in these reasons, and by the Tribunal in its reasons, that although there was a correspondence between the matters to which the Committee referred in its notice of investigation issued in 2013, and in its original application to the Tribunal, with the matters upon which the Board relied in its notice of intention to cancel Mr Rayney's practising certificate, the matters identified by the Board in its notice of cancellation of Mr Rayney's practising certificate did not include the matters which the Committee wished to refer to the Tribunal in its revised application.
81 In that context the Tribunal summarised the reasoning and conclusions expressed earlier in its reasons as follows:[37]
There was ample opportunity for the [Committee's] Proceedings and the Board Proceedings to be heard together. The [Committee] did not take advantage of that opportunity when it could have and should have. It follows that there could have and should have been finality of all the evidentiary and ultimate issues raised against Mr Rayney by the Board and the [Committee].
No valid reason was advanced by the [Committee] as to why the [Committee's] Proceedings could not have been heard at the same time as the Board Proceedings. They could have and should have been heard at the same time.
Although the Tribunal has not adjudicated on the subject matter of the grounds now referred to it in the [Committee's] Proceedings, it is remarkable that the [Committee] seeks to continue to prosecute the proceedings. To the extent that Mr Rayney 'will have gained an advantage', that arises simply because the [Committee] did not prosecute the [Committee's] Proceedings when it could have and should have done so. The [Committee's] submission that Mr Rayney will have 'gained an advantage' merely by seeking a review of the Tribunal's decision to cancel his practising certificate is not correct. Mr Rayney was entitled to seek a review of the Board's decision to cancel his practising certificate as quickly as possible, particularly in circumstances where he had not practised for a significant period of time. The [Committee] was not entitled to proceed as if the Board Proceedings had not been instituted. It was not entitled to proceed as if it had no information.
Not to have proceeded with the Board Proceedings and the [Committee's] Proceedings together was clearly oppressive to Mr Rayney. His practising certificate had been cancelled by the Board. He was entitled to apply to have that decision reviewed. It was entirely reasonable for him to have expected that all of the factual issues would have been dealt with in one hearing. It would be unfair if he now had to face yet another hearing in circumstances where the [Committee's] Proceedings could have and should have been dealt with in October 2015.
For Mr Rayney to have to now face a trial of the [Committee's] Proceedings would impact adversely upon the principle of finality of judicial determination and public confidence in the administration of justice. Public confidence in the administration of justice would be eroded in circumstances where the [Committee's] Proceedings could have and should have been dealt with in conjunction with the Board Proceedings. Although the continuation of the [Committee's] Proceedings would not be inconsistent with the literal application of SAT's procedural rules and the LP Act, it would nevertheless bring the administration of justice into disrepute among rightthinking people.
When the [Committee] could have and should have proceeded in conjunction with the Board Proceedings in October 2015 its interests in having the [Committee's] Proceedings heard as against Mr Rayney's interests in finality and the ability to get on with his life lead to the overall balance of justice favouring the dismissal of the [Committee's] Proceedings as an abuse of process.
...
The time has come to say enough. The Tribunal finds that this is a most exceptional case. The Tribunal finds that pursuant to s 47 of the SAT Act the continuation of the [Committee's] application would constitute an abuse of process.
82 This analysis of the Tribunal's reasons shows that, stripped to their bare essentials, the Tribunal summarily dismissed the Committee's proceedings against Mr Rayney for two independent reasons.
83 First, the Tribunal held that the Committee was bound by the Board's decision not to pursue the matters which the Committee has referred to the Tribunal in the Board's notice of cancellation of Mr Rayney's practising certificate, with the consequence that the Committee was now precluded from referring those matters to the Tribunal. Although the language used in the reasons is not entirely consistent, the better view seems to be to the effect that the decision was based upon the application of the principles of estoppel, rather than broader principles relating to abuse of process.
84 Second, the Tribunal concluded that the Committee's failure to act in such a way as to enable the proceedings which it commenced in the Tribunal to be heard at the same time as Mr Rayney's proceedings constituted an abuse of process because it resulted in a multiplicity of hearings which was unfair and prejudicial to Mr Rayney. The Tribunal attributed the Committee's failure to act in such a way as to enable the two sets of proceedings to be heard in tandem to a number of different factors including the Committee's decision to investigate Mr Rayney's conduct when such an investigation was unnecessary and delay in the conduct of the investigation, including delay occasioned by the taking of steps which were unnecessary. All of these factors contributed to the Tribunal's conclusion that the Committee's conduct gave rise to an abuse of process.
The application for leave to appeal and the ambit of an appeal from the Tribunal
86 The written submissions provided by the Committee helpfully identify the question or questions of law raised by each ground of appeal. As it is not contended on behalf of Mr Rayney that any of those grounds exceed the ambit of an appeal permitted by the SAT Act, it is unnecessary to say any more about this aspect of the case.
87 Leave to appeal from a decision of the Tribunal will be granted if, in all the circumstances, a grant of leave is in the interests of justice.[40] Although the circumstances in which it will be in the interests of justice to grant leave cannot be constrained, it will usually be relevant for the court to consider whether an applicant for leave has shown that there is sufficient doubt with respect to the decision under appeal to justify the grant of leave and that allowing the error to go uncorrected would impose substantial injustice. The latter conclusion will more readily follow if the substantive effect of the decision under appeal is final.[41]
88 In this case the decision of the Tribunal had the effect of finally determining the proceedings commenced by the Committee without any substantive determination of their merit. In such a circumstance, leave to appeal should be granted if the applicant can establish that the Tribunal's decision was vitiated by error. No contention to the contrary was advanced on behalf of Mr Rayney.
89 There are six grounds of appeal. The first ground is concerned with the first reason given by the Tribunal for dismissing the Committee's proceedings based on privity of interest between the Committee and the Board, and all other grounds are directed to the second reason given by the Tribunal. However, for the reasons which follow, there is some commonality of issues between grounds 1 and 3 which makes it convenient to consider these grounds first.
90 Ground 1 asserts that the Tribunal erred by concluding that the Committee was a privy of the Board and therefore bound by the Board's decision not to pursue the matters identified in the Board's notice of intention to cancel Mr Rayney's practising certificate in its notice of cancellation of Mr Rayney's practising certificate, and in its defence of Mr Rayney's review proceedings. Ground 3 asserts that the Tribunal erred in law in holding that a failure to have proceedings heard in tandem might, without more, constitute an abuse of process without addressing the question of whether there was a 'relevant connection' or 'sufficient identification' between the Committee and the Board so as to give rise to an abuse of process.
91 As each of these grounds is concerned with the relationship between the Committee and the Board, it is appropriate to commence with a consideration of the provisions of the LPA which bear upon that relationship.
92 The LPA provides for the regulation of legal practice in Western Australia and facilitates the regulation of legal practice on a national basis.[42] Under the Act, the entities primarily responsible for the regulation of the legal profession in Western Australia are the Board, the Committee and the Supreme Court of Western Australia. The Board and the Committee are each created by provisions contained within pt 16 of the LPA. Division 1 of that Part is concerned with the establishment, functions and performance of the Board, whereas div 2 of that Part is concerned with the establishment, functions and performance of the Committee.
93 The Board is a body corporate which may sue or be sued in its corporate name.[43] The members of the Board comprise the Attorney General, the Solicitor General, each Queens Counsel and Senior Counsel practising in Western Australia who has nominated himself or herself as a member and 12 local legal practitioners of at least three years standing and practice who are elected as members.[44] Any four members of the Board comprise a quorum for the purposes of a meeting of the Board.[45] Part 16 of the LPA does not specify the functions of the Board other than to provide that it has the functions conferred upon it by the LPA or any other Act.[46]
94 The Board is empowered to delegate any of its powers or duties to a member of the Board or to a committee established by the Board.[47] Committees created by the Board must comply with any direction or requirement of the Board, but may determine their own procedures.[48] However, those provisions do not apply to the Committee.[49]
95 The Board is required to make and submit an annual report of its proceedings to the Attorney General which must include certain specified information, which report must then be tabled by the Attorney General in each House of Parliament.[50]
96 The Committee is established as a committee of the Board by the LPA not by the Board.[51] The Committee comprises a chairperson and not less than six other legal practitioners appointed by the Board from amongst its members from time to time and not less than two representatives of the community who are not lawyers, appointed by the Attorney General after consultation with the Minister responsible for consumer affairs.[52] Three members of the Committee comprise a quorum for the purposes of a meeting of the Committee provided that two are members appointed by the Board and one is a representative of the community.[53]
97 Although the Committee is to perform the functions conferred upon it by the LPA or any other Act, without limiting that conferral of power s 557 of the LPA provides that the functions of the Committee include:
(a) the supervision of the conduct of legal practitioners;
(b) inquiry into complaints received with respect to conduct on the part of a legal practitioner or matters relating to legal practice;
(c) the institution of disciplinary proceedings against a legal practitioner in the Tribunal; and
(d) the supervision and direction of the Law Complaints Officer.
98 The same section provides that a member of the Committee appointed by the Attorney General may report independently, as an individual, to the Attorney General on any aspect of an alleged complaint or an inquiry as to disciplinary matters or the activities of the Law Complaints Officer or the Committee itself. The same section also requires the Board to ensure that the Committee is provided with such services and facilities as are reasonably necessary to enable it to perform its functions.
99 However, and significantly, s 557(4) provides:
The Board must not direct or impose any requirement on the [Committee] as to the performance of its functions.
101 The Committee is required to provide an annual report to the Attorney General including information specified in the LPA, which the Attorney General is obliged to table in each House of Parliament.[56]
102 Division 3 of pt 16 of the LPA creates the office of Law Complaints Officer. As I have noted, that officer is subject to the supervision and direction of the Committee.
The respective functions of the Board and the Committee
103 As the LPA comprises more than 600 sections, an exhaustive analysis of the different functions conferred upon the Board and the Committee respectively by that Act would be lengthy and tedious. For present purposes it is sufficient to observe that under the LPA each of the Board and the Committee are given discrete and exclusive statutory functions, and to support that observation with some examples.
104 The admission of a person to legal practice is regulated by a combination of the Board and the Supreme Court. The issue of practising certificates to 'Australian lawyers'[57] is the exclusive responsibility of the Board.[58] Accordingly, whether or not a certificate should be issued, and the conditions (if any) attached to any practising certificate, and the amendment, suspension or cancellation of any practising certificate are all matters within the exclusive province of the Board. As this case illustrates, conduct on the part of a legal practitioner[59] which might cause the Board to suspend or cancel a practising certificate might also give rise to a complaint to the Committee under other Parts of the LPA. In that context, s 60 of the LPA, which is within div 6 of pt 5 of the Act which relates to the amendment, suspension or cancellation of practising certificates, provides:[60]
Nothing in this Division prevents a complaint from being made, or an investigation being initiated, under Part 13 about a matter to which this Division relates.
105 The Board is also responsible for the commencement of any proceedings for an offence against the LPA.[61] The Board is also responsible for the administration and operation of pt 6 of the Act, which contains provisions with respect to the admission and issue of practising certificates to lawyers practising in other Australian jurisdictions. The Board is also responsible for the registration of foreign lawyers under pt 8 of the LPA.
106 These are just some examples of functions imposed exclusively upon the Board by the LPA. The Committee has no role to play in relation to any of these functions, or any of the other many functions conferred exclusively upon the Board by the LPA.
107 Other provisions of the LPA confer exclusive functions upon the Committee. Perhaps the most significant of those is pt 13 of the LPA, which is concerned with complaints and discipline, and which confers upon the Committee the functions which it has exercised in this case. Complaints made under that Part may be made to the Committee or the Law Complaints Officer,[62] although exclusive responsibility for responding to a complaint is conferred upon the Committee. So, the Committee may require a complainant to provide further details about the complaint,[63] and it is the Committee which must ensure that written notice of any complaint is provided to the relevant practitioner as soon as practicable after a complaint is made.[64] Other provisions of the Part regulate the manner in which the Committee is to investigate and resolve complaints, including s 421(1) of the LPA, which authorises the Committee to investigate the conduct of a practitioner on its own initiative. That is the power which was exercised by the Committee in this case, and of which notice was given to Mr Rayney on 16 December 2013.
108 In that context, s 424(1) of the LPA provides:
After an investigation under section 421 is completed, the [Committee] must -
(a) in the case of the investigation of a complaint, dismiss the complaint under section 425 or, in the case of an investigation on the initiative of the [Committee], decide to take no further action; or
(b) take action under section 426; or
(c) refer the matter to the State Administrative Tribunal under section 428.
109 Section 428 of the LPA provides:
(1) If the [Committee] determines that a matter should be heard by the State Administrative Tribunal the Committee may refer the matter to the Tribunal.
(2) The [Committee] is not limited under subsection (1) by the terms of any complaint it has received or by the subject matter of any investigation it has conducted and is not required to conduct an investigation before referring a matter to the State Administrative Tribunal.
110 The Tribunal placed significant reliance upon the latter provision in arriving at its conclusion that the Committee should have referred the matter to the Tribunal without conducting or completing the investigation which it had initiated pursuant to s 421.
111 As I have noted above, the Board is empowered to suspend a practising certificate. The Committee's powers with respect to the suspension of practising certificates are set out in s 436(1) of the LPA, and are limited to the making of an application to the Tribunal for an order that a practising certificate be suspended for a specified period, pending the completion of an investigation or a hearing by the Tribunal or an appeal from the Tribunal. In the context of the argument presented to this court with respect to the relationship between the Board and the Committee, it is of some significance that the LPA does not contemplate the Committee making a request to the Board to suspend a practitioner's practising certificate.
112 Division 12 of pt 13 requires the Board to keep a Register of Disciplinary Action, recording particulars of any disciplinary action taken pursuant to the LPA. However, apart from the power to make complaints[65] and the power to publicise disciplinary action in any manner it thinks fit,[66] this is the only function conferred upon the Board by pt 13, and it is a function which is exclusive of the Committee, just as the powers and functions conferred upon the Committee by pt 13 are exclusive of the Board.
Some joint functions of the Board and the Committee
113 This is not to say that all powers and functions specified in the LPA are reposed exclusively in either the Board or the Committee. Some powers and functions are conferred upon both. So, for example, either the Board or the Committee may conduct an audit of the compliance of an incorporated legal practice with the requirements of the LPA.[67] To take another example, either the Board or the Committee may appoint a suitably qualified person to investigate the affairs of a law practice.[68]
Summary relating to the Legal Profession Act
114 Each of the Board and the Committee are created by the LPA. They are differently constituted,[69] have different quora, and different procedures. Each reports separately to the Attorney General, and through the Attorney General, to the Parliament. The LPA confers a significant range of functions exclusively upon the Board, and a smaller range of functions exclusively upon the Committee. Although there are some functions which can be exercised by either the Board or the Committee under the LPA, they are relatively confined.
115 In terms of the relationship between the Board and the Committee, the LPA expressly provides that, notwithstanding that the Committee is a committee of the Board, unlike other committees of the Board, it is not subject to direction or the imposition of any requirement by the Board in the performance of its functions. Further, the LPA expressly recognises that there may be occasions upon which conduct by a practitioner might enliven both the exercise by the Board of its power to suspend or cancel a practising certificate, and the power of the Committee with respect to the investigation and prosecution of complaints, and provides that in such a circumstance the exercise of the Board's powers is not to prevent or inhibit the exercise of the Committee's powers.[70]
116 For reasons which will be developed below, a significant issue with respect to ground 1 of the appeal concerns the capacity of the Committee to control or direct the Board in the exercise of its exclusive power to cancel Mr Rayney's practising certificate. Although there is no express provision in the LPA which reciprocates the prohibition upon the Board directing or imposing any requirement on the Committee in the performance of its functions, such a provision would not be expected, as there is nothing in the general structure or specific provisions of the LPA which would suggest that the Committee has any power or function of directing the Board in relation to the exercise of functions conferred exclusively upon the Board by the LPA.
117 Counsel for Mr Rayney accepted that the Committee could not direct or control the Board in the exercise of its functions with respect to the cancellation of Mr Rayney's practising certificate.[71] However, he submitted that it would have been open to the Committee to request the Board to include, in its notice of cancellation of Mr Rayney's practising certificate, and in its defence of Mr Rayney's proceedings, the three matters which the Committee now wishes to pursue in the proceedings it has commenced in the Tribunal.[72] When asked to identify the statutory source of such a power, counsel could only refer to s 557(2) of the LPA, and the general function of supervising the conduct of legal practitioners to which I have referred.[73]
118 I do not accept that submission. The provision empowering the Committee to supervise the conduct of practitioners must be read and construed in the context created by the scheme of the LPA as a whole, including the conferral of separate and exclusive functions upon each of the Board and the Committee. Viewed in that context, the Committee's general function of supervising the conduct of practitioners is to be performed through the exercise of the specific powers and functions conferred upon it by the LPA. The power to cancel a practising certificate, which was exercised by the Board in this case, is a power conferred exclusively upon the Board. The general function of supervising the conduct of practitioners conferred upon the Committee should not be read or construed as providing the Committee with any role or responsibility in relation to the exercise of a power or function conferred exclusively upon the Board, such as the power to cancel Mr Rayney's practising certificate.
119 At another point in the argument[74] counsel for Mr Rayney drew attention to the Committee's power to apply to the Tribunal for an order that a practising certificate be suspended for a specified period pending, amongst other things, the investigation and determination of a complaint or matter by the Committee, or the hearing of a referral by the Tribunal.[75] With respect, this provision does not support the proposition that the Committee has any role or responsibility with respect to the Board's exercise of the exclusive power to cancel a practising certificate. Rather, the provision supports the view that the Committee's role is limited to bringing an application before the Tribunal for an interim suspension of a practising certificate, pending the finalisation of the complaints procedure.
120 In this statutory context, any attempt by the Committee to influence the Board in the exercise of its exclusive power with respect to the cancellation of Mr Rayney's practising certificate would have subverted the scheme of the LPA and exceeded the powers conferred upon the Committee by the LPA.
The relationship between the Board and the Committee in this case
121 Counsel for Mr Rayney submitted, in effect, that whatever the provisions of the Act relating to the precise legal relationship between the Board and the Committee, as a matter of fact in this case the Board and the Committee acted in concert, inferentially with the consequence that either privity of interest or a 'relevant connection' or 'sufficient identification' was established between the Board and the Committee.[76] However, the Tribunal made no finding of fact to that effect, nor has any notice of contention been filed to the effect that the Tribunal should have made such a finding. As I have noted above,[77] after reviewing the evidence relating to the communications between the Board and the Committee, the Tribunal found that, at least from September 2014, the Board and the Committee:
(a) were aware of the separate investigations being conducted by the other;
(b) kept each other apprised of the status of and developments in their investigations against Mr Rayney; and
(c) exchanged information and documents obtained in the context of their separate investigations against Mr Rayney including documents filed by Mr Rayney in Mr Rayney's proceedings.[78]
122 In other words, while the Tribunal found that the Board and the Committee had exchanged information, the Tribunal made no finding to the effect that the Board and the Committee had acted in concert, or that either had endeavoured to influence the actions of the other. Further, as I have already noted,[79] the Tribunal held that the exchange of information between the Board and the Committee was authorised by the LPA, and that there was nothing unfair or improper in the exchange of information between the Board and the Committee.[80] Counsel for Mr Rayney properly conceded that there was no evidence that either the Board or the Committee were suggesting to the other what action should be taken in the performance of that other's functions,[81] and the evidence to which counsel referred in argument is incapable of establishing anything more than the exchange of information between the Board and the Committee, as found by the Tribunal. To the contrary, the evidence of the communications between the Board and the Committee which I have already summarised reveals an assiduous attention to and respect for the boundaries of the exclusive functions conferred upon the Board and the Committee which are delineated in the various provisions of the LPA to which I have referred.
123 So, in summary, the Tribunal did not find nor is there any evidence capable of establishing that either the Board or the Committee went beyond the boundaries of the exclusive functions conferred upon each by the LPA, or engaged with each other in any way unauthorised by the LPA, or endeavoured to influence the other in the performance of its functions, or acted in concert in relation to the performance of their respective functions.
124 In the circumstances of this case the legal principles relevant to the resolution of ground 1 can be sufficiently distilled from two recent decisions of the High Court of Australia.
Tomlinson v Ramsey Food Processing Pty Ltd[82]
125 In Tomlinson v Ramsey Food Processing Pty Ltd the question was whether the making of a claim by the Fair Work Ombudsman which resulted in declarations and orders by a court in civil penalty proceedings created an issue estoppel upon which a respondent to that proceeding was entitled to rely in subsequent common law proceedings brought against it by a worker (who was not a party to the initial proceedings). Although the critical issue in Tomlinson turned upon issue estoppel, the observations made by the court extend to other categories of estoppel including, relevantly to this case, what has come to be known as Anshun estoppel, and broader principles relating to abuse of process.
126 The plurality referred to three forms of estoppel arising from the manner in which contested proceedings are conducted or resolved recognised by the common law of Australia.[83] Two of those forms of estoppel arise from the prior determination of a cause of action or issue. As neither the issues nor the claims which the Committee wishes to advance in its proceedings before the Tribunal have been previously resolved or determined by the Tribunal, neither of those forms of estoppel has any application to this case.
127 The third form of estoppel was described by the plurality in Tomlinson as an extension of the first and second. As their Honours observed:[84]
Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a 'true estoppel' and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument. (footnotes omitted)
128 This form of estoppel has come to be known as Anshun estoppel, by reference to the name of a party to the case in which it was first recognised in Australia.[85]
129 As I have noted, in this case the Tribunal took the view that the matters which the Board had included in its notice of intention to cancel Mr Rayney's practising certificate, but did not include within its notice of cancellation of that certificate, or in its defence of Mr Rayney's proceedings, were so closely connected with the subject matter of Mr Rayney's proceedings as to give rise to an estoppel of this kind, preventing the Board from agitating those matters in subsequent proceedings against Mr Rayney. As I would understand it, that part of the Tribunal's reasoning is not challenged by the Committee. Rather, its challenge is directed to the next step in the Tribunal's process of reasoning, which is to the effect that if the Board is bound by such an estoppel, the Committee is also bound because of privity of interest between the Board and the Committee.[86]
130 In Tomlinson the court confirmed that where a question arose as to whether a person was bound by one or other of the forms of estoppel by reason of the conduct of another, the principles of privity of interest to be applied were the same, irrespective of the form of estoppel.[87]
131 In Tomlinson it was common ground that the question of whether the worker bringing common law proceedings was 'privy in interest' with the Fair Work Ombudsman for the purpose of issue estoppel was to be determined by reference to the principles governing privity of interest enunciated in Ramsay v Pigram.[88] In that case Barwick CJ observed that:[89]
The basic requirement of a privy in interest is that the privy must claim under or through the person of whom he is said to be a privy.
132 As the plurality noted in Tomlinson, there was no contention by either party in that case to the effect that some wider principle, along the lines of that which has since come to be adopted in the United Kingdom, New Zealand or Canada, should now be adopted in Australia,[90] and there does not appear to be any Australian decision supporting a broader view.
133 As the plurality observed in Tomlinson, the rationale for the requirement of privity of interest can be taken from a passage in an early text:[91]
A man will be bound by that which bound those under whom he claims quoad the subject matter of the claim, for he who derives the benefit from a thing ought to sustain the burden, or feel the disadvantages attending it (footnotes omitted).
134 In Tomlinson the plurality made clear that the representation of the legal interest of one party by another in either the first or the second proceeding can give rise to sufficient privity of interest. As the plurality observed:[92]
Consistently with the rationale for the principle, the explanation demonstrates that a party to a later proceeding (A) can be privy in interest with a party to an earlier proceeding (B) on either of two bases. One basis is that A might have had some legal interest in the outcome of the earlier proceeding which was represented by B, or that B has some legal interest in the outcome of the later proceeding which is represented by A. The extent to which the representation by A or B will be sufficient to bind the other is the critical issue which will be explored later in these reasons.
135 So, in the present case, sufficient privity of interest to bind the Committee to an estoppel arising from the earlier conduct of the Board will arise if the Board was representing some right or interest of the Committee when it cancelled Mr Rayney's practising certificate and defended Mr Rayney's proceedings, or if the Committee is representing some right or interest of the Board in the proceedings it commenced in the Tribunal. In this context it is clearly established that the relevant interest of the privy must be a legal interest - an economic or other interest in the outcome of the proceedings to which he or she was not a party is insufficient.[93]
136 However, as foreshadowed in the passage from the reasons of the plurality set out above, in Tomlinson all members of the court took the view that the fact that a party whose conduct is said to give rise to an estoppel was representing the legal interests of another party who is said to be bound by that estoppel is not, of itself, sufficient to create the requisite privity of interest. Rather, something more is required, explained by the plurality in these terms:[94]
The justice of binding to an estoppel a person whose legal interests stood to benefit from the making or defending of a claim by someone else in an earlier proceeding will often ... be apparent. With the benefit of the claim or defence also comes the detriment of the estoppel. That, at least, is the underlying theory. But it is a theory which has limitations. It would be quite unjust for such a person to be precluded from asserting what the person claims to be the truth if the person did not have an opportunity to exercise control over the presentation of evidence and the making of arguments in the earlier proceeding and if the potential detriment to the person from creating such an estoppel was not fairly taken into account in the decision to make or defend the claim in the earlier proceeding or in the conduct of the earlier proceeding.
137 Nettle J arrived at a similar conclusion through a slightly different route, identified in the following passage of his reasons:[95]
The approach in this country, therefore, remains one of identifying characteristics of a relationship between party and privy which, although not amounting to a shared same interest or established legal or equitable relationship like agency or trusteeship, are sufficiently analogous to the established categories of sufficient connection to warrant inclusion in the concept. And, for present purposes, the important characteristics of the established forms of representation which emerge from the decided cases appear to be that a principal is generally able to control the conduct of an agent, and that the imposition of fiduciary duties on certain kinds of representatives has the effect of guiding the representative's conduct and providing remedies to the principal on default.
138 The plurality illustrated the significance of the requirement for control by reference to the circumstances which arose in Young v Public Service Board.[96] In that case government employees claiming a declaration that their employer had not determined their ordinary hours of work were held not to be estopped by a contrary finding of fact made in the course of resolving an earlier dispute between their employer and an industrial association of which they were members. Although the earlier proceedings might, if successful, have resulted in an award which was binding upon the employer and its employees, the reasoning of the court in that case emphasised the inability of the employees to appear in or control the earlier proceedings conducted by the industrial association of which they were members, and that, in the later proceedings, the employees were claiming without regard to the industrial association or their membership of it.[97]
139 In the result, in Tomlinson all members of the court concluded that as the Fair Work Ombudsman was not representing the legal interest of Mr Tomlinson in the earlier proceedings it had commenced, and as Mr Tomlinson had no capacity to control the conduct of those proceedings by the Fair Work Ombudsman, he was not bound by an issue estoppel arising from those proceedings.
Timbercorp Finance Pty Ltd (in liq) v Collins[98]
140 In Timbercorp Finance Pty Ltd (in liq) v Collins, the question was whether persons who were plaintiffs in a group proceeding commenced in the Supreme Court of Victoria, but not the lead plaintiff in those proceedings, were bound by an Anshun estoppel arising from the failure of the lead plaintiff to raise certain issues in those proceedings which the parties wished to raise by way of defence to proceedings subsequently brought against them.
141 The court applied the principles enunciated in Tomlinson and first considered whether the lead plaintiff in the group proceedings, who took responsibility for the conduct of those proceedings, was representing the legal rights or interests of the other members of the group. All members of the court concluded that the lead plaintiff was only representing the legal rights or interests of the other members of the group to the extent of the common questions that arose for determination in the group proceedings, and not in respect of issues which were not raised for determination in those proceedings.[99] It followed that the failure of the lead plaintiff to raise for determination matters or issues connected with the issues which were raised for determination in the group proceedings was not a step taken by the lead plaintiff in the representation of the relevant legal rights and interests of the other members of the group.
142 The court also addressed the second question posed in Tomlinson - namely, whether the members of the group had the capacity to control or direct the lead plaintiff in relation to the conduct of the proceedings, and concluded that their inability to do so was another reason why they were not bound by privity of interest with the lead plaintiff in relation to the Anshun estoppel said to arise from the manner in which those proceedings were conducted.[100]
Ground 1 of the appeal - reasoning and conclusion
143 Applying the principles established in Tomlinson and Timbercorp to the circumstances of this case, before it could be concluded that the Committee was bound by an Anshun estoppel arising from the Board's failure to rely upon the matters which the Committee now wishes to pursue in the Board's notice of cancellation of Mr Rayney's practising certificate and in its defence of Mr Rayney's proceedings, two questions must be answered in the affirmative. The first question is whether the Board was representing the legal rights or interests of the Committee in the actions which it took in relation to the cancellation of Mr Rayney's practising certificate or, alternatively, whether the Committee is representing the legal rights or interests of the Board in the pursuit of its proceedings. The second question is whether the Committee had the capacity to direct or control the Board in relation to the manner in which it conducted the cancellation of Mr Rayney's practising certificate and the defence of Mr Rayney's proceedings.
144 It will be apparent from my analysis of the LPA and of the legal relationship between the Board and the Committee under the LPA, and from my review of the facts found by the Tribunal that both of these questions must be answered in the negative. The Board's cancellation of Mr Rayney's practising certificate and its defence of Mr Rayney's proceedings involved the exercise of powers and functions conferred exclusively upon the Board. The Committee had no legal right or interest in the exercise of those powers or functions and could not in any way be said to be claiming any legal right or interest through the Board's conduct of those matters. Conversely, the investigation of Mr Rayney's conduct in accordance with pt 13 of the LPA by the Committee and the subsequent commencement of the Committee's proceedings involved the exercise by the Committee of powers and functions conferred exclusively upon the Committee by the LPA. The Board had no legal right or interest in the performance or exercise of those powers and functions and could not in any way be said to be claiming any legal right or interest through the Committee's performance of those functions. Further, for the reasons I have already given, the Committee was unable to and did not in fact purport to exercise any power of control or direction in relation to the Board's conduct with respect to the cancellation of Mr Rayney's practising certificate and its defence of Mr Rayney's proceedings, and cannot therefore be bound by any estoppel arising from the Board's failure to raise issues which the Committee now wishes to raise.
145 As I have noted[101] the only reason given by the Tribunal for concluding that the Committee is a privy of the Board is that it is described by the LPA as a committee of the Board. With respect to the Tribunal, the description of the Committee as a committee of the Board is an insufficient basis for concluding that the Committee was a privy in interest of the Board. The Tribunal failed to address or resolve the issues which must be determined when a question of privity of interest arises. Had it done so, it could only have concluded that none of the requirements for privity of interest had been established.
146 However, although it is clear that the Tribunal erred in concluding that there was privity of interest between the Board and the Committee, as I have noted, there is a degree of ambiguity inherent in the reasons give by the Tribunal on the question of whether the first reason it gave for dismissing the Committee's proceedings was an application of the principles of Anshun estoppel,[102] or alternatively some reliance upon the broader principles relating to abuse of process. It is therefore necessary to consider whether those broader principles might sustain the first reason given by the Tribunal for dismissing the Committee's proceedings before leaving ground 1.
The relationship between abuse of process and estoppel
147 The breadth and flexibility of the doctrine of abuse of process as compared to the doctrine of estoppel was addressed by the plurality in Tomlinson, where they observed:[103]
To explain contemporary adherence to the comparatively narrow principle in Ramsay v Pigram, it is appropriate also to explain the relationship between the doctrine of estoppel and the doctrine of abuse of process as it has since come to be recognised and applied in Australia. The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.
Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel. (footnotes omitted)
148 As the matters which the Committee wishes to press in its proceedings against Mr Rayney have not been raised or determined in any earlier proceedings in the Tribunal, the relevant portion of the plurality's observations above is the reference to an issue 'which ought reasonably to have been made or raised for determination in' earlier proceedings. None of the cases cited by the plurality in support of that proposition[104] are cases in which the abuse was said to arise from the failure of another party to raise an issue for determination in earlier proceedings. The cases which do address that issue establish that an abuse of process will only be found where there is a 'relevant connection' or 'sufficient identification' between the two litigants. Those cases are entirely consistent with the observations made by all members of the court in Tomlinson to the effect that an injustice sufficient to give rise to an estoppel would only be established if the party said to be bound by the estoppel had the capacity to control or influence the actions of the party which are said to give rise to the estoppel.
149 In Champerslife Pty Ltd v Manojlovski & Anor[105] the question was whether it was an abuse of process for a company under the control of an individual to commence proceedings following the determination of proceedings brought against the individual controlling the company which raised issues connected with those earlier proceedings. Handley AJA accepted that questions relating to abuse of process were to be resolved by the application of a broad merits-based judgment, as compared to the narrower approach taken with respect to estoppel.[106] However, where the abuse was said to arise from the conduct of earlier proceedings to which the putative abuser was not a party, he considered that a 'relevant connection' between the two parties had to be established. As he observed:[107]
Earlier proceedings by one litigant could not make later proceedings by another an abuse of process unless there was a relevant connection between the litigants. Since the issue was abuse of process realities must be relevant. The 'broad merits-based judgment' excluded any narrow or artificial approach.
... Mr Lawrence was the defendant in the first case, and his company the plaintiff in the second. The company did not control Mr Lawrence, but the order of events cannot affect the result in such a case. Mr Lawrence could have had the company issue proceedings and applied to have them heard in tandem with the proceedings against himself. The existence of an Anshun estoppel must be determined in the light of such realities. [Although later portions of the reasons make clear that his Honour was concerned with the broader principles relating to abuse of process, rather than the narrower principles relating to estoppel.]
150 Similarly, In the matter of HIH Insurance Ltd (in liq); De Bortoli Wines (Superannuation) Pty Ltd v McGrath,[111] Brereton J observed:
The above authorities establish that a person who was not party to earlier proceedings may nonetheless be precluded from maintaining later proceedings in respect of substantially the same subject matter, even though not in privity in the strict sense with the unsuccessful party in the earlier proceedings, if the person is sufficiently identified with a party to the earlier proceedings, and it was unreasonable to stand by and allow the earlier proceedings to be determined without intervening. In my view, in Australia these cases are best explained as a sub-species of Anshun estoppel; such that where a given matter becomes the subject of litigation and adjudication, the court requires not only the parties to bring forward their whole case, but other persons with a sufficient interest also to do so. Short of privity in the strict sense, there will be sufficient identification where there is control of one by the other - because it is offensive to the efficient administration of justice for a party who could have caused others with a similar interest to join in the proceedings to refrain from doing so and then seek indirectly to relitigate the issue through a controlled entity. In addition, the requisite relationship will be taken to exist where there has been what Lord Hobhouse called an 'order for the marshalling of litigation', because where a court has put in place arrangements to facilitate the quick, just and inexpensive resolution of complex related litigation, it is offensive to the administration of justice that a person involved in those arrangement[s] subsequently be able to circumvent them [cf Ashmore, 348H-349A]. However, the existence of the requisite identification is not of itself enough; as with the more familiar form of Anshun estoppel, a non-party will be precluded from later litigating the issue only where it was unreasonable to stand by without intervening in the earlier proceedings.
...
A person not party to the original litigation may be precluded from maintaining new proceedings that involve relitigation of an issue previously decided, where the person concerned, though not a party to the earlier proceedings, was in privity with the unsuccessful party in those proceedings. ...
However, a person who was not party to earlier proceedings may nonetheless also be precluded from maintaining later proceedings in respect of substantially the same subject matter, even though not in privity in the strict sense with the unsuccessful party in the earlier proceedings, if the person is sufficiently identified with a party to the earlier proceedings, and it was unreasonable to stand by and allow the earlier proceedings to be determined without intervening. This is a form of Anshun estoppel; so that where a given matter becomes the subject of litigation and adjudication, the court requires not only that the parties bring forward their whole case, but also that other persons with notice of the claim who have a sufficient interest in the subject matter and a sufficient identification with a party, to do so. One relevant type of identification with a party is where the party controls, or is controlled by, the other person. Consistent with Anshun, proceedings will be precluded only where it was unreasonable for the other person not to intervene in the earlier proceedings.
151 These cases establish that, notwithstanding the additional breadth and flexibility of the principles relating to abuse of process when compared to the principles relating to estoppel, a 'broad merits-based judgment' to the effect that proceedings commenced by one party give rise to an abuse of process because of the conduct of another party in earlier proceedings cannot be made unless there is a 'relevant connection' or 'sufficient identification' between the two parties. Consistently with the approach taken by the High Court in each of Tomlinson and Timbercorp, generally speaking such a connection or identification will be established if one party controls, or is controlled by, the other, such that it would be unreasonable for the second party to fail to intervene in or direct the earlier proceedings, or vice versa.
152 For the reasons I have already given, neither the Board nor the Committee had the power or purported to act in such a way as to control or influence the other in the exercise of their respective functions. More specifically, the Committee could not control or influence the Board's decision with respect to the matters upon which it relied for the purpose of cancelling Mr Rayney's practising certificate or for the purpose of defending Mr Rayney's proceedings, nor did the Committee attempt to influence the Board with respect to such matters. Similarly, the Committee had no power to intervene in Mr Rayney's proceedings, save for its appropriate appearance at directions hearings in order to advise the Tribunal of its position.[112] Conversely, the Board has no power to control or influence the Committee in its conduct of the proceedings brought against Mr Rayney in the Tribunal, nor has the Board attempted to exercise any such power of control or influence. The Board has no power to intervene in those proceedings.
153 If the Tribunal was applying principles relating to abuse of process in its first reason for deciding to dismiss the Committee's proceedings - namely, that the Committee was bound by the Board's decision not to raise the matters it now wishes to pursue in its notice of cancellation of Mr Rayney's practising certificate and its defence of Mr Rayney's proceedings, it was necessary for the Tribunal to address the question of whether there was a relevant connection or sufficient identification between the Board and the Committee. The Tribunal did not do so. Had it done so, for the reasons I have just given, it must have concluded that the relationship between the Committee and the Board was not such that the commencement of the Committee's proceedings gave rise to an abuse of process because of the manner in which the Board had conducted its defence to Mr Rayney's proceedings.
154 For these reasons the Tribunal was wrong to conclude that the Committee was a privy of the Board such that it was bound by an estoppel arising from the Board's failure to rely upon the matters the Committee has raised in its proceedings in the Board's notice to cancel Mr Rayney's practising certificate and in its defence of Mr Rayney's proceedings. Alternatively, if the Tribunal's decision is to be explained by the application of principles relating to the abuse of process, the Tribunal failed to address the question of whether there was a relevant connection or sufficient identification between the Board and the Committee for the purpose of applying those principles. Had the Tribunal considered that question, it could only have concluded that there was not a relevant connection or sufficient identification between the Committee and the Board to render the Committee's proceedings an abuse of process by reason of the position previously adopted by the Board.
155 It follows that ground 1 has been established. It also follows that the first reason given by the Tribunal for dismissing the Committee's proceedings cannot be sustained.
156 It is convenient to next consider ground 3, because although it is concerned with the second reason given by the Tribunal for dismissing the Committee's proceedings as an abuse of process, it is also concerned with the issue of the requisite connection between the Committee and the Board which lies at the heart of ground 1.
157 Ground 3 focuses upon the observation in the Tribunal's reasons to the effect that 'a failure to have proceedings heard in tandem may constitute an abuse of process'[113] and asserts that error is evident from the Tribunal's failure to refer to the need to establish a relevant connection or sufficient identification between the putative abuser and the party to the earlier proceedings.
158 I have referred to the relevant authorities when considering abuse of process in the context of ground 1, which is concerned with the extent to which the Committee is, in effect, bound by the action taken by the Board at the time it cancelled Mr Rayney's practising certificate and in its subsequent defence of Mr Rayney's proceedings. However, the authorities include cases in which it was alleged that an abuse of process arose from a failure to commence proceedings which could be heard in tandem with the earlier proceedings. They are therefore equally apt to the issue raised by ground 3 of the appeal, which is concerned with the second reason given by the Tribunal for dismissing the Committee's proceedings - namely, its failure to commence proceedings which could be heard in tandem with Mr Rayney's proceedings. It follows that if the Tribunal's reasons as a whole support the conclusion that it did not apply the principles enunciated in those cases in arriving at its conclusion, error will have been established and the ground made out.
159 At first sight it seems improbable that the Tribunal would have overlooked the need to establish a relevant connection between the litigants in this context, as the portion of the Tribunal's reasons to which objection is taken immediately follows the portion of the decision of Handley AJA in Champerslife which I have set out above,[114] in which the need for such a connection is unequivocally acknowledged. However, apart from the succinct assertion that the Committee is a privy of the Board because it is a committee of the Board (notwithstanding the express statutory prohibition upon the Board purporting to direct the Committee), the Tribunal's reasons do not address the principles enunciated in the cases to which I have referred. In particular, the Tribunal's reasons do not address the question of whether there was a relevant connection or sufficient identification between the Board and the Committee which would enable the principles enunciated in those cases to be applied, nor do they address the question of the capacity of the Board and the Committee to control or influence each other in the performance of their respective functions.
160 It follows that either the Tribunal failed to address the issue relating to the connection between the Board and the Committee or, if it did address the principles relevant to that issue, it applied them incorrectly by concluding that the description of the Committee as a committee of the Board established the requisite connection or identification, notwithstanding the inability of the Board or the Committee to control or influence the other in the performance of their respective functions relating to Mr Rayney. It follows that ground 3 must also be upheld.
161 As I have noted, the Tribunal provided two substantive and alternative reasons for dismissing the Committee's proceedings. The first reason was to the effect that the Committee's proceedings constituted an abuse of process because the Committee was seeking to pursue matters which the Board could and should have raised in its notice cancelling Mr Rayney's practising certificate and in its defence of Mr Rayney's proceedings. The second substantive reason given by the Tribunal is more difficult to define succinctly, but it is to the effect that the Committee's proceedings constituted an abuse of process because the Committee could and should have brought its proceedings in tandem with Mr Rayney's proceedings, its failure to do so being unexplained, and occasioned by unexplained delay in its investigation and commencement of its proceedings in a context in which an investigation was unnecessary and/or unreasonably protracted by unnecessary steps.
162 The second ground of appeal asserts that the application for summary dismissal of the Committee's proceedings was brought entirely upon the basis of the first reason given by the Tribunal for dismissing those proceedings and did not rely upon or invoke any aspect of what became the second substantive reason given by the Tribunal for dismissing the Committee's proceedings. The ground asserts that the Committee was unaware of the case which was ultimately decided against it in this respect, and was thereby denied the opportunity to meet that case with the result that it was denied procedural fairness.
163 There is no doubt that the Tribunal is bound to act in accordance with the principles of procedural fairness.[115] It follows that the question which resolves this ground of appeal is the question of whether the Committee was put on notice of the various matters determined adversely to its interests by the Tribunal in the course of what I have described as the second substantive reason given for dismissing the Committee's proceedings. That issue can only be resolved by a consideration of the course of the proceedings before the Tribunal.
164 Mr Rayney's application for an order dismissing the Committee's proceedings was commenced by a form lodged with the Tribunal on 26 April 2016 (Mr Rayney's application). In that form the grounds upon which the order was sought were expressed in the following terms:[116]
This proceeding is vexatious or otherwise an abuse of process by reason of the fact that the LPCC, being a committee of the LPBWA, now seeks to pursue the proceeding solely on facts and grounds which the LPBWA initially raised against Mr Rayney, but subsequently did not rely upon when the LPBWA decided to refuse to issue to Mr Rayney a local [practising] certificate under the provisions of the LPBWA and did not rely upon when Mr Rayney applied to this Tribunal to review the said decision of the LPBWA (being proceedings VR 132 of 2015), in which proceeding this Tribunal reversed the said decision of the LPBWA.
165 So, the ground upon which Mr Rayney's application was brought was limited to the issue addressed in what I have described as the first reason given by the Tribunal for dismissing the Committee's proceedings. The ground made no reference to any of the matters addressed by the Tribunal in connection with the second reason which it gave, including in particular no reference to any failure by the Committee to proceed so as to enable its proceedings to be heard in tandem with Mr Rayney's proceedings, nor any reference to delay on the part of the Committee or to the Committee's conduct of unnecessary investigations.
166 The Tribunal directed Mr Rayney to file affidavit evidence and submissions in support of his application for summary dismissal of the Committee's proceedings before the Committee was required to produce its affidavit evidence and submissions in opposition to Mr Rayney's application. The written submissions filed and served by Mr Rayney in support of his application for summary dismissal of the Committee's proceedings commenced with a recitation of the Board's failure to rely upon the matters which the Committee now wished to pursue in its notice of cancellation of Mr Rayney's practising certificate, notwithstanding that those matters were relied upon by the Board in its notice of intention to cancel Mr Rayney's practising certificate. In that context it was submitted that the Tribunal should infer that the Board:[117]
[M]ade an informed decision not to pursue these matters and that it did so on the basis that it did not consider these matters were sufficient to warrant (either by each of them or in combination with the other facts or matters) a conclusion that Mr Rayney was no longer a fit and proper person to hold a local practising certificate.
167 After referring to some of the statutory provisions relating to the relationship between the Committee and the Board, Mr Rayney's submissions contend that the material produced by the Board shows that the Board and the Committee were each aware of the separate investigations being conducted by the other, kept each other apprised of the status of and developments in their investigations against Mr Rayney, and exchanged information and documents obtained in the context of their separate investigations against Mr Rayney.[118] In the written submissions it is also asserted that the manner in which the Board and the Committee conducted their investigations was unfair and prejudicial to Mr Rayney.[119]
168 The written submissions next address the asserted connections between the matters raised by the Committee in its proceedings, and the matters addressed by the Tribunal in Mr Rayney's proceedings.
169 After referring to s 47 of the SAT Act and cases concerned with abuse of process, double jeopardy and collateral attack, the written submissions assert that:[120]
[T]he [Committee] seeks to litigate matters which could and should have been litigated in the LPB proceedings [referring to Mr Rayney's proceedings].
The submissions further assert that the matters which the Committee wished to press:[121]
[R]aise issues which so substantially overlap with those that arose under the earlier LPB proceedings as to warrant a conclusion that the grounds should have been raised.
170 When these portions of the submissions are read in the context of the ground enunciated in Mr Rayney's application, and the earlier portions of the written submissions, it is clear that these submissions are to be read as an assertion that the Committee's proceedings are an abuse of process because the Board failed to rely upon the matters which the Committee wishes to press in its notice of cancellation of Mr Rayney's practising certificate and its defence of Mr Rayney's proceedings. Both portions of the text which I have set out above refer to the 'the LPB proceedings', being what I have described as Mr Rayney's proceedings. The Committee was not a party to those proceedings and had no capacity to raise any issue in those proceedings. There is nothing in the words used, or arising from the context in which they are used, to suggest to a reasonable reader that it was being asserted on behalf of Mr Rayney that the Committee should have commenced its proceedings in such a way that they could be heard in tandem with what are described as 'the LPB proceedings', or that the Committee was at fault in failing to take that course.
171 Later in Mr Rayney's submissions it is asserted that:[122]
The evidence establishes that the [Board] and the [Committee] kept each other fully informed with respect to matters concerning Mr Rayney. Fairness to Mr Rayney and the due administration of justice required them not only to keep each other informed, but to co-ordinate themselves so that all allegations which the [Committee], being a committee of the [Board], wished to be raised against Mr Rayney was raised in the LPB proceedings.
172 For the reasons I have just enunciated, this portion of the submissions must also be construed as an assertion that the Committee is bound by the Board's failure to raise any matter which it wanted to raise in its defence of Mr Rayney's proceedings. There is nothing in the words used to suggest that the Committee was at fault by failing to commence its own proceedings in such a way as to enable them to be heard in tandem with Mr Rayney's proceedings. That construction of the text is evident from the paragraph which immediately follows:[123]
[T]he end result is that to permit the continuation of these proceedings is to permit a situation where serious allegations against a person are withdrawn from determination by the Tribunal as a result of a conscious decision by a regulator. When the regulator fails on the issues which it chose to advance before the Tribunal, it (through one of its committees) then seeks to agitate before the Tribunal effectively the self-same issues which it previously chose not to pursue.
173 So, Mr Rayney's submissions made clear that his case remained that enunciated in his written application - namely, that the Committee was, in effect, the alter ego of the Board and was bound by the consequences of the Board's decision not to rely upon the matters which the Committee now wishes to press in the Board's decision to cancel Mr Rayney's practising certificate and in its defence of Mr Rayney's proceedings.
174 The Committee was directed to file affidavits containing the evidence upon which it relied in opposition to Mr Rayney's application after Mr Rayney's written submissions had been filed and served. Given that there is nothing in the terms of Mr Rayney's application, or the written submissions filed in support of that application which would suggest that his application relied upon an asserted failure by the Committee to commence its proceedings in such a way that they could be heard in tandem with his proceedings, or which would suggest that he relied upon any of the matters which the Tribunal decided adversely to the Committee in that context, namely, delay or the conduct of unnecessary or inappropriate investigations, it is not surprising that none of those matters were addressed in the affidavit evidence filed on behalf of the Committee. In that context, the many references in the Tribunal's reasons to the fact that the manner and timing of the Committee's investigations were 'unexplained' reinforces the conclusion to be drawn from the documents to which I have referred to the effect that the Committee was unaware that such matters were in issue at the time it prepared and filed its affidavit evidence.
175 In the written submissions filed by the Committee in response to Mr Rayney's submissions it was asserted that:[124]
[I]t is material that Mr Rayney does not allege, and nor are there grounds to allege, any delay on the part of the [Committee] in either its investigation or the commencement of the [Committee's] proceedings. In addition, Mr Rayney does not allege that he will suffer any actual prejudice by reason of the [Committee's] proceedings following Mr Rayney's review proceedings - the mere fact that Mr Rayney will have to answer the [Committee's] disciplinary proceedings does not constitute relevant prejudice.
176 It is clear from this portion of the written submissions, which were filed at the same time as the affidavit evidence upon which the Committee relied, that the Committee did not then consider an allegation of delay in the conduct of its investigations or in the commencement of its proceedings to be any part of the case it had to meet. However, the Tribunal's conclusion that the Committee was at fault for failing to commence its proceedings at such a time that they could be heard in tandem with Mr Rayney's proceedings was an essential component of what I have described as the second reason given by the Tribunal for dismissing the Committee's proceedings.
177 Written submissions were filed on behalf of Mr Rayney in response to the Committee's written submissions. In those submissions it was asserted that:[125]
[T]he Respondent wishes to directly respond to the [Committee's] suggestion that because the Respondent proceeded with the hearing of his application against the Legal Practice Board of Western Australia (LPB) notwithstanding knowledge of these proceedings, he is effectively the author of his own misfortune and, moreover, 'will have gained an advantage' by having 'avoided scrutiny under Part 13' ...
As to that:
Had the [Committee's] proceedings been ready they could have been heard with the LPB proceedings. The fact that the [Committee's] proceedings were not ready cannot be visited upon the Respondent.
178 In the course of oral argument counsel for Mr Rayney relied upon this portion of the responsive submissions in an attempt to answer the Committee's submission that if delay in the conduct of its investigations and the initiation of its proceedings was, in fact, part of the case put against it, there would have been an emphatic denial of the Committee's unequivocal assertion to the contrary in its written submissions. Counsel for Mr Rayney contended that the portion of his responsive submissions I have set out above constituted a joinder of issue with the assertion made in the Committee's submissions and an allegation of delay on the part of the Committee.[126]
179 That submission must be rejected. The portion of the responsive submissions to which I have referred does not respond to the Committee's unequivocal assertion that there was no allegation of delay in either its investigation or the commencement of its proceedings but rather to the Committee's proposition that Mr Rayney was, in effect, the author of his own injury because he pressed for the early hearing of his proceedings after the Committee had commenced proceedings against him. In that context the submissions do not assert that there was any delay on the part of the Committee in either conducting its investigations or commencing its proceedings. Rather, the submissions contend that Mr Rayney cannot be held responsible for the fact that the Committee's proceedings were not ready to be heard at the same time as his proceedings. Put another way, the written submissions do not attribute fault in the form of delay to the Committee, but deny fault on the part of Mr Rayney.
180 In the course of argument on this topic, counsel for Mr Rayney pointed to the correlation between this portion of his written submissions in reply, and the Tribunal's observation that:[127]
Had the [Committee's] Proceedings been ready, as they should have been, they could have and would have been directed by this Tribunal to be heard with the Board Proceedings.
181 However, with the greatest respect to counsel, this comparison rather makes the Committee's point in respect of this ground of appeal. The vital difference between the written submissions filed on behalf of Mr Rayney, and the Tribunal's observation above is the proposition that the Committee's proceedings should have been ready to be heard in tandem with Mr Rayney's proceedings. For the reasons I have already given, no hint of that proposition is to be found in the application lodged by Mr Rayney, or in the written submissions filed on his behalf.
182 In order to assess whether that proposition was one of the Tribunal's making developed following the completion of the evidence and submissions it is necessary to complete the assessment of the course of the proceedings before the Tribunal by considering the oral argument presented at the hearing.[128]
183 The oral arguments advanced on behalf of Mr Rayney were consistent with the written submissions which had been filed on his behalf. They emphasised inferences which it was said should be drawn from the Board's failure to include in its notice cancelling Mr Rayney's practising certificate the matters which the Committee wishes to press against him.[129] The oral submissions advanced on behalf of Mr Rayney made no reference to the proposition contained in his written submissions in reply which I have set out above.
184 Counsel for Mr Rayney made no reference to delay on the part of the Committee in his oral submissions in support of Mr Rayney's application. However, when counsel for the Committee was invited to address the Tribunal after counsel for Mr Rayney he presented the following submissions:[130]
The second proposition is that there is no allegation of any relevant delay on the part of the Committee. The Committee's written submissions develop, at length, the factual background. I don't intend to rehearse that. I did, however, prepare a chronology which gives your Honour a road map where you can find the relevant events and documents, if I could hand that up. In short, on delay, it goes like this: while the investigation was commenced in 2012 and raised with the practitioner in 2013, the practitioner said, with justification, that the investigation should not proceed while he was subject to the telecommunication interception charges.
Those charges were dismissed in May 2015. The Committee then almost immediately sought submissions in response to its investigation. The practitioner sought an extension of time to respond. Submissions in response were provided by the practitioner on 9 July. Thereafter, in the next month, the Committee requested written information on oath. Again, in relation to that request, the practitioner sought an extension of time. Ultimately, those written answers were provided to the Committee on 29 September 2015. This application was commenced on 9 October. So that is less than two weeks after the practitioner's response to the Committee. So in terms of the relevant timeframe we say there is no delay that can be attributed to the Committee, and indeed, none is suggested.
In terms of the third proposition, your Honour, it is that - - - absence of any allegation of a relevant delay answers the suggestions made in my friend's submissions, that the reason we are here is the Committee's proceedings were not ready. And, if ready, could have been heard with Mr Rayney's review proceedings. There not having been any delay that could be attributed to the Committee, the function of the fact that the Committee's proceedings could not proceed with the review proceedings is simply not attributable to anyone.
No blame can be cast. It's not the fault of the Committee; it's not the fault of Mr Rayney. And, in saying that, it should be noted that Mr Rayney, of course, did request extensions; some 7 weeks worth of extensions. And that of course had an impact on the timing of when the [Committee's] application was made.
185 Counsel for Mr Rayney replied to these submissions in the following terms:[131]
The second submission is there is no allegation of relevant delay on the part of the Committee. We accept that to be the case and we didn't raise a relevant intentional delay on the part of the Committee as part of our submissions.
The third proposition is absent any suggestion of relevant delay. But there is no suggestion that a fault attributable to the Committee could be reason why it's not dealt with is not attributable to any party.
Further, in response to other submissions put on behalf of the Committee, counsel for Mr Rayney submitted that the Committee could have suggested to the Board that it include within its notice of cancellation of Mr Rayney's practising certificate the matters which it now wishes to press before the Tribunal.[132]
186 It was never put that the Committee could and should have acted in such a way as to commence its own proceedings in order that they could be heard in tandem with Mr Rayney's proceedings. Counsel for Mr Rayney also submitted that it would have been open to the Board to reconsider its decision and to add additional grounds being the matters which the Committee wishes to press in its proceedings.[133] In that context counsel for Mr Rayney expressly disavowed any suggestion that the Committee could dictate to the Board,[134] and limited his submission to the proposition that the Committee could make representations to the Board as to the matters which should be put in issue by the Board in Mr Rayney's proceedings.[135] These submissions are entirely consistent with the terms of the written application to the Tribunal and the enunciation of Mr Rayney's case in his written submissions, which placed emphatic reliance upon the Board's failure to pursue the matters which the Committee wishes to pursue in its defence of Mr Rayney's proceedings, as opposed to any suggestion to the effect that the Committee should itself have pursued those matters by proceedings commenced in such a way as to be heard in tandem with Mr Rayney's proceedings.
187 I have set out above[136] the portion of the Tribunal's reasons where, under the heading 'Delay', the Tribunal observed that up to the point of Mr Rayney's acquittal on the TIA charges the parties agreed that no fault could be attributed to either party for delay, and then observed that 'after this point, the question of what could have been done and should [have] been done is a very live issue'.[137]
188 With respect to the Tribunal, it is clear from the review of the course of the proceedings before the Tribunal which I have undertaken above that there was no point in time at which either party attributed fault to the other in terms of delay, nor was there any point in time at which it could be suggested that the question of what could and should have been done by the Committee was a very live issue. Mr Rayney's case was and always remained a case to the effect that the Committee, as the alter ego of the Board, was bound by the Board's failure to put in issue the matters which it wished to pursue before the Tribunal. It seems clear that this was how the Tribunal understood Mr Rayney's case during the course of the hearing when, after observing that the Committee was a committee of the Board, the Tribunal put to counsel for the Committee the proposition that:[138]
[I]f the Board takes the decision to run - particularly proceedings - in a particular manner, then the sins of the fathers are visited upon the children.
189 Put another way, Mr Rayney's case was, and always remained, a case based upon the consequences of the manner in which the Board conducted the cancellation of his practising certificate and its defence of his review proceedings. No allegation of default, delay or neglect on the part of the Committee was made in the course of Mr Rayney's case. Reference was made in oral argument to the proposition that the Committee could have requested (not directed) the Board to include certain matters in its defence of Mr Rayney's proceeding - a proposition which I have rejected for the reasons given above in connection with ground 1. However, that proposition was not advanced by way of criticism of the Committee, but rather by way of justification for the proposition that the Committee should be bound by the Board's conduct because the Committee had the capacity to make representations to the Board.
190 My review of the course of the proceedings in the Tribunal shows that what I have described as the Tribunal's second reason for dismissing the Committee's proceedings, being the Committee's failure to act in such a way that its proceedings could be heard in tandem with the Board's proceedings, and the various findings made in connection with that conclusion relating to delay on the part of the Committee with respect to its investigation of Mr Rayney's conduct and its commencement of proceedings, and the findings with respect to the unnecessary and inappropriate nature of the investigation, were never raised by any party or by the Tribunal at any time prior to the delivery of the Tribunal's reasons for dismissing the Committee's proceedings. It follows that the Committee had no opportunity whatsoever to meet the case which was ultimately found against it and was thereby denied procedural fairness. Ground 2 must be upheld.
191 The remaining three grounds of appeal all challenge various specific aspects of what I have described as the Tribunal's second substantive reason for dismissing the Committee's proceedings and which, for the reasons I have just enunciated, formed no part of Mr Rayney's case before the Tribunal. Having not advanced that case before the Tribunal, there is no basis upon which it could now be suggested that Mr Rayney should be given the opportunity to have 'a second bite of the cherry' by presenting a case which he did not present at first instance. It follows that the conclusions I have reached in respect of the first three grounds of appeal[139] are sufficient to determine the outcome of this appeal. In those circumstances while it remains appropriate to consider the three remaining grounds of appeal, that consideration can be more succinct than might otherwise have been the case.
192 Ground 4 challenges six intermediate findings made by the Tribunal as steps on the path to its conclusion that the Committee's proceedings were an abuse of process on the grounds that:
(a) each finding was not open (in the sense that there was no evidence to support the finding); or
(b) each finding was so unreasonable that no reasonable decision-maker could have made it; or
(c) the reasoning process for each finding was illogical, irrational or lacked a basis in findings or inferences of fact supported on logical grounds,
and, in the case of two of the findings, additional grounds specific to those findings.
193 There is no appeal to this court from findings of fact made by the Tribunal.[140] However, an assertion that a finding of fact was not open on the evidence (in the sense that there was no evidence to support the finding),[141] or was so unreasonable that no reasonable decision-maker could have made it,[142] or was made by a process of reasoning that was illogical, irrational, or lacked a basis in findings or inferences of facts supported on logical grounds[143] raises questions of law which are within the ambit of an appeal to this court.[144] Counsel for Mr Rayney did not contend otherwise.
194 The Tribunal found that investigation of Mr Rayney's conduct by the Committee was unnecessary.[145] The first reason this finding must be set aside is that the Committee was given no notice that it was contended its investigations were unnecessary, as this was never part of Mr Rayney's case.[146] However, there are additional reasons why this finding must be set aside.
195 The Tribunal relied significantly upon the express provision of s 428 of the LPA[147] to the effect that the Committee is not required to conduct an investigation before referring a matter to the Tribunal. However, there is obviously a significant distinction between the legal question of whether the Committee can refer a matter to the Tribunal without investigation, and the factual question of whether, in any particular case, the Committee should refer a matter to the Tribunal without investigation.
196 The latter question is to be assessed in the context of s 424 of the LPA,[148] which stipulates, in imperative terms, the course which the Committee is to follow when it concludes an investigation under s 421 of the LPA. Those terms essentially require the Committee to elect which of the alternative possible courses will be followed after its investigations have been completed. So, the LPA expressly contemplates, consistently with good sense, that when the Committee initiates an investigation into the conduct of a practitioner, it will complete that investigation and then determine which of the alternative courses available under the LPA should be followed.
197 The reasons of the Tribunal do not expressly enunciate why it was thought that the Committee should not follow this normal course, although they suggest that two factors were significant in the Tribunal's conclusion:
(a) an inference to the effect that the Committee had all the information it needed to refer the matter to the Tribunal, without conducting any investigation; and
(b) the fact that an investigation would delay commencement of the Committee's proceedings in the Tribunal and imperil the prospect of those proceedings being heard in tandem with Mr Rayney's proceedings.
198 The first inference is contrary to the only evidence on the topic before the Tribunal, which was not challenged by cross-examination or any evidence to the contrary. Nor was there any reason to doubt the evidence given on behalf of the Committee to the effect that it did not form a view with respect to the matters to be referred to the Tribunal until its investigations were complete. Part of the Committee's process of investigation involved requesting Mr Rayney to provide submissions in relation to the matters it was proposing to refer to the Tribunal - a process required by the principles of procedural fairness. In fact, the Committee determined not to refer some of the matters it had investigated to the Tribunal. Further, after the Committee refers a practitioner's conduct to the Tribunal, the Committee carries the burden of proving that the practitioner engaged in professional misconduct. In that context there is no obligation upon the practitioner to give evidence. The Tribunal's finding that the Committee's summons to Mr Rayney to produce information was unnecessary because all the matters addressed could have been dealt with in cross-examination ignores:
(a) the burden of proof in matters referred to the Tribunal by the Committee; and
(b) the fact that there is no assurance that the practitioner will give evidence in such proceedings.
Further, the Tribunal's observation[149] that there was no explanation from the Committee as to why the summons for information was necessary is explained by the fact that the Committee was not on notice that there was any issue before the Tribunal with respect to the manner in which it had conducted its investigation.
199 The Tribunal's finding that the Committee unreasonably delayed the completion of its investigation into Mr Rayney's conduct and the commencement of its proceedings is addressed below, where it is concluded that the finding was not open on the evidence. It follows that none of the matters apparently relied upon by the Tribunal for its conclusion that investigation by the Committee was unnecessary were open to the Tribunal on the evidence. The Tribunal's conclusion that investigation by the Committee was unnecessary must be set aside.
200 The Tribunal found that the Committee had delayed the completion of its investigation and the commencement of its proceedings.[150] The Tribunal inferentially found that the Committee should have completed its investigation within a week of 2 June 2015 or by the end of June 2015, and noted that no explanation had been proffered as to why that had not occurred.[151] Of course, the reason why the Committee proffered no explanation of its conduct of the investigation was that it was not aware that this was a live issue before the Tribunal, which is the first reason why the Tribunal's findings with respect to delay must be set aside. However, there are other reasons.
201 As I have noted above, the Committee gave Mr Rayney notice of its investigation into his conduct in December 2013. In February 2014 Mr Rayney's solicitors proposed that the Committee defer its investigation until the TIA charges had been determined. In effect the Committee agreed with that proposal. Mr Rayney was acquitted of the TIA charges on 7 May 2015. On 20 May 2015 the Committee wrote to Mr Rayney's solicitors requesting a response to the matters of which Mr Rayney had been notified in December 2013. Mr Rayney's solicitors requested an extension of time for the provision of that response on 28 May 2015, and again on 8 June 2015. The Committee agreed to extend the time for the provision of that information until 8 July 2015. So, the time for Mr Rayney's response to the matters of which he had been notified by the Committee had not expired by the time at which the Tribunal concluded the Committee's investigations should have been complete. In that factual context, the Tribunal's conclusion that the Committee's investigation should have been completed not later than the end of June 2015 was contrary to the only evidence on the subject and must be set aside.
202 Mr Rayney responded to the matters identified by the Committee in December 2013 by letter from his solicitors dated 9 July 2015. Five days later the Committee requested copies of certain documents from Mr Rayney's solicitors which were provided two days later, on 16 July 2015. The following day the Board gave Mr Rayney notice of its decision that his practising certificate would be cancelled, and a week later, on 24 July 2015 Mr Rayney commenced his proceedings in the Tribunal. Mr Rayney's commencement of proceedings in the Tribunal gave rise to the communications between Mr Rayney's solicitors and the Committee during August 2015 with respect to the overlap between Mr Rayney's proceedings and the matters under investigation by the Committee which I have set out above. In the course of that correspondence Mr Rayney's solicitors made clear that he would oppose any deferral of the hearing of his proceedings notwithstanding the evident overlap between the matters in issue in those proceedings, and the matters under investigation by the Committee.
203 In that context the Committee issued a summons for information on 25 August 2015. For the reasons I have already given, the Tribunal's conclusion that the summons was unnecessary because the matters addressed in it could be covered in cross-examination of Mr Rayney ignores the forensic context of proceedings referred to the Tribunal by the Committee, and in particular ignores the fact that the Committee carries the burden of proving professional misconduct and that there can be no assurance that any practitioner will give evidence in the course of such proceedings.
204 Mr Rayney sought an extension of time within which to respond to the summons issued by the Committee and in the result the time for compliance was extended to 29 September 2015, when the information sought was provided by Mr Rayney. The Committee's proceedings were commenced 10 days later, on 9 October 2015.
205 The chronological sequence of the Committee's investigations which I have summarised above was clear from the evidence before the Tribunal. On that evidence there was no evidentiary basis for any finding to the effect that the Committee was guilty of delay in the conduct of its investigation of Mr Rayney's conduct or in the commencement of its proceedings. The Tribunal's finding to that effect was not open on the evidence before the Tribunal and must be set aside.
Consent as to dictaphone recordings an issue in Mr Rayney's proceedings
206 The question of whether recordings made by Mr Rayney of conversations with his late wife using a handheld dictaphone were made with Mrs Rayney's knowledge or consent is central to the matters which the Committee wishes to pursue in its proceedings before the Tribunal. The Tribunal held that this issue was also 'very much a live issue' in Mr Rayney's proceedings.[152]
207 Inferentially the Tribunal made that finding on the basis of particulars provided by Mr Rayney's counsel in the course of submissions.[153] Those particulars rely upon five matters, the first being the statements of facts, issues and contentions filed by each of the Board and Mr Rayney in relation to Mr Rayney's proceedings. However, neither of those documents raises any issue with respect to whether or not the late Mrs Rayney consented to the recordings.
208 Next the particulars refer to the Board's written opening submissions. However, there is nothing in those submissions which raises any issue with respect to consent to the recordings. Further, in the course of his oral opening, counsel for the Board expressly advised the Tribunal that the lawfulness of Mr Rayney's use of the handheld dictaphone was not an issue raised by the Board.[154] Counsel for Mr Rayney responded by observing that if he had known that the use of the dictaphones was not in issue it would have abbreviated the task of preparing Mr Rayney's statement.
209 The next matter identified in the particulars advanced on behalf of Mr Rayney is the witness statement filed on his behalf in the proceedings, which does make reference to his late wife's consent to the recordings. However, as I have just noted, it is clear from the statements made by Mr Rayney's counsel that the statement was prepared on the basis of a mistaken view as to the ambit of the matters put in issue by the Board in Mr Rayney's proceedings.
210 The next matter identified in the particulars provided on behalf of Mr Rayney concerns his cross-examination, and part of that cross-examination is set out at some length in the Tribunal's reasons for dismissing the Committee's proceedings.[155] However, although questions were asked in cross-examination with respect to Mr Rayney's evidence to the effect that his late wife consented to the recording of their conversations, significantly, at no point in the cross-examination was any challenge to that evidence mounted or even suggested. To the contrary the cross-examiner permitted Mr Rayney to expand upon his evidence to the effect that there was consent for the recording, without challenge to that evidence, consistently with the position expressly enunciated in the course of his opening of the case.
211 The final matter identified in the particulars provided on behalf of Mr Rayney was various passages in the reasons given by the Tribunal for its decision in Mr Rayney's proceedings. However, the relevant portion of the Tribunal's reasons are in the following terms:[156]
Mr Rayney's evidence before the Tribunal was that Mrs Rayney was aware that he was recording their conversations. He said he informed her of this on the first occasion that he made a recording of their conversation (T:209); Exhibit N at [748], [757] and [794]).
Mr Rayney's evidence at [748] was:
Corryn couldn't care less that I tried to record our conversations. She did not use those words but it was almost like saying 'Go ahead, give it your best shot.'
(See also T:237239)
The recordings do not commence with a statement of the date and time. Similarly, the recordings do not commence with a statement that Mrs Rayney had consented to the recordings (Exhibit N at [754]). Mr Rayney's explanation is that to do so would have made it a 'formal event' which he wished to avoid (Exhibit N at [752]).
As noted, the Board did not pursue an allegation of a breach of the Surveillance Devices Act in relation to the use of the dictaphone to record conversations with Mrs Rayney. It is therefore unnecessary to make a finding as to whether this was done with or without Mrs Rayney's consent.
The significance of the first dictaphone recordings, their transfer to CDs, and the subsequent disposal of the first dictaphone and the second dictaphone by Mr Rayney, is that it provides part of the factual basis for the Board's allegation that improper disposal of the dictaphones was illegal.
212 So, in its reasons, the Tribunal expressly confirmed that the question of whether the late Mrs Rayney consented to the recordings was not an issue in Mr Rayney's proceedings and recorded that no finding was made by the Tribunal on that question. The reasons also expressly record that the relevance of the circumstances in which the recordings were made was that the evidence provided the factual basis for the Board's allegation that Mr Rayney improperly and illegally disposed of the dictaphones, which no doubt explains the line taken by counsel for the Board in cross-examination of Mr Rayney.
213 When detailed attention is directed to the matters apparently relied upon by the Tribunal for its conclusion that the question of consent to the recording was 'very much a live issue' in Mr Rayney's proceedings, it is clear that the conclusion is contrary to the reasons expressly given by the Tribunal in those proceedings, and cannot be sustained by any of the evidence relating to the course of those proceedings. In those circumstances the finding must be set aside.
214 The Tribunal found that the Committee's failure to have its proceedings heard in tandem with Mr Rayney's proceedings was 'clearly oppressive to Mr Rayney'.[157] The Tribunal gave two reasons for that conclusion - namely, that it was reasonable for Mr Rayney to have expected that all the factual issues would have been dealt with in one hearing, and that it would be unfair if Mr Rayney had to face another hearing in circumstances in which the Committee's proceedings could and should have been dealt with in October 2015.
215 The circumstances in which abuse of process will be found by reason of the oppressive effect of proceedings upon a litigant are not closed. However, considerations commonly taken into account in assessing the extent of oppression to a party include delay, whether subsequent proceedings are in substance the same or closely related to earlier proceedings, and whether the party was entitled to regard the matters raised in the subsequent proceedings as behind him.[158]
216 The sequence of events and the correspondence to which I have referred establishes that Mr Rayney was well aware that while there was an overlap between the matters taken into account by the Board when cancelling his practising certificate, and the matters under investigation by the Committee, the fields were not co-extensive and the Committee wished to pursue matters which had not been pursued by the Board. That was clear from at least July 2015, and was unmistakeably clear after the Committee commenced its proceedings on 9 October 2015. With that knowledge Mr Rayney pressed the Tribunal for an order that his proceedings be heard in advance of the Committee's proceedings, and obtained a direction from the Tribunal to that effect. In those circumstances, it was not open to the Tribunal (in the sense that there was no evidence to support the finding) to conclude that Mr Rayney reasonably expected that all of the factual issues would have been dealt with in one hearing - to the contrary, the fact that they were not dealt with in one hearing was the consequence of the position which he knowingly adopted in relation to the hearing of the two matters in which he was involved.
217 The second matter relied upon by the Tribunal - namely, that it would be unfair for Mr Rayney to face another hearing when the Committee's proceedings could and should have been heard in tandem with Mr Rayney's proceedings - presumes that there was some material delay on the part of the Committee in the prosecution of its proceedings, a conclusion which is not sustained by any evidence, for the reasons I have given.
218 Turning to the considerations customarily considered when issues of oppression arise, in this case there was no evidence of significant delay when account is taken of the sequence of events and the position adopted by Mr Rayney. Further, at all material times after the issue of the Board's notice of cancellation of Mr Rayney's practising certificate it was clear that the matters under investigation by the Committee were not co-extensive with the matters upon which the Board relied for its decision and therefore clear to Mr Rayney that he would not be entitled to regard all matters as behind him when his proceedings in the Tribunal were complete.
219 In these circumstances the Tribunal's finding of oppression was not open on any of the evidence before the Tribunal and must be set aside.
220 The Tribunal found that Mr Rayney's proceedings and the Committee's proceedings fell squarely within the concept of double jeopardy because the complaint in the Committee's proceedings arose out of the same pattern of conduct as gave rise to Mr Rayney's proceedings and there was a substantial degree of factual overlap between the issues.[159]
221 For the reasons I have already given, it was not open to the Tribunal (in the sense that there was no evidence to support the finding) to find that the complaints raised in the Committee's proceedings arose out of the same conduct as was put in issue in Mr Rayney's proceedings because the question of consent to the recordings made by Mr Rayney using the handheld dictaphone was not in issue in the proceedings which he commenced, nor was the question of whether he gave false evidence on that subject. Mr Rayney's conduct with respect to that evidence was well beyond the scope of the matters in issue in the proceedings which he commenced in the Tribunal. It was therefore not open to the Tribunal to conclude that there was a substantial degree of factual overlap between the issues in the two sets of proceedings. Nor was it open to the Tribunal to conclude that Mr Rayney was entitled to believe that all matters were behind him following the determination of his proceedings, for the reasons I have already given. The reasons given by Gleeson CJ in Gill v Walton[160] upon which the Tribunal expressly relied identify the latter consideration to be relevant to the assessment of double jeopardy.
222 For these reasons, the Tribunal's conclusion that the two sets of proceedings fell squarely within the concept of double jeopardy was not open on the evidence and must be set aside.
223 As I have noted,[161] the Tribunal found that the Committee's proceedings would bring the administration of justice into disrepute by requiring Mr Rayney to face multiple suits 'brought by the same entity'.[162] It will be apparent from the reasons I have already given that this finding cannot be sustained, because the Board and the Committee are not the same entity, nor are they privies in interest, nor is there a relevant connection or sufficient identification between the two entities in respect of the different proceedings in which they engaged to give rise to an abuse of process. The finding was not open on the evidence before the Tribunal and must be set aside.
224 The Committee has established that each of the findings challenged in ground 4 of the appeal was not supported by any evidence before the Tribunal, or arose from the failure to correctly apply relevant legal principles. Accordingly, ground 4 should be upheld in its entirety.
Ground 5 - failure to take account of relevant considerations
225 Ground 5 asserts that the Tribunal's finding that efficiency and economy demanded that the Committee's proceedings be heard in tandem with Mr Rayney's proceedings is vitiated by a failure to take into account relevant considerations, being essentially the position adopted by Mr Rayney and the orders made by the Tribunal with respect to the hearing of his proceedings. Given the limited ambit of an appeal to this court from the Tribunal, this ground can only succeed if it is established that the Tribunal failed to take into account a matter which it was legally obliged to consider as a condition of the valid exercise of its jurisdiction.[163]
226 It is a singular feature of the Tribunal's decision that it concluded that the Committee's proceedings constituted an abuse of process because those proceedings would result in a multiplicity of hearings when:
(a) both proceedings were on foot at the time the first proceedings were heard;
(b) it was clear to all that the hearing and determination of the first proceedings would not resolve all the issues in the second proceedings;
(c) it was therefore clear to all that if the first proceedings were heard in advance of the second hearings, a multiplicity of hearings was inevitable;
(d) with knowledge of both proceedings the party now claiming the second proceedings are an abuse of process insisted that the first proceedings be heard at a time which would preclude them being heard in tandem with the second proceedings;
(e) with knowledge of both sets of proceedings and their different ambits, the Tribunal ordered that the first proceedings be heard at a time which would preclude them being heard in tandem with the second proceedings, thereby rendering a multiplicity of hearings inevitable.
227 I am not aware of any previous case of Anshun estoppel or abuse of process said to arise from the prospect of a multiplicity of hearings which had any one of these features, let alone all of them.
228 The Tribunal justified its conclusion by reference to the Committee's unexplained failure to ensure that its proceedings were heard in tandem with Mr Rayney's proceedings, which was in turn based upon the Tribunal's finding that the Committee was guilty of delay in the conduct of its investigation and the commencement of its proceedings. For the reasons I have already given, that process of reasoning cannot be sustained. However, it was precisely that process of reasoning that caused the Tribunal to conclude that the position adopted by Mr Rayney with respect to the hearing of his proceedings, and the fact that it was the directions made by the Tribunal, cognisant of the two sets of proceedings, which resulted in them being heard separately, were each irrelevant to the question of abuse of process.[164]
229 Nevertheless, the fact that the process of reasoning which caused the Tribunal to conclude that those matters were irrelevant cannot be sustained does not result in the success of this ground of appeal unless the circumstances in which the multiple proceedings came about, and in which the prospect of multiple hearings arose, were matters which the Tribunal was obliged to take into account in the exercise of its jurisdiction. For the reasons which follow, those matters were considerations which the Tribunal was obliged to take into account, with the result that its conclusion that they were irrelevant vitiates its decision.
230 It is clear from the authorities to which I have referred that a decision as to whether there has been an abuse of process in any case will require what has been described in the authorities as a 'broad merits-based decision'. While the categories of case in which an abuse will be found and the circumstances relevant to the broad merits-based decision are not confined or predetermined, it is clear that all matters which are logically or rationally relevant to the determination must be taken into account. In cases in which the abuse is said to arise from a multiplicity of proceedings giving rise to a multiplicity of hearings, the conduct of all parties is relevant, including the conduct of the party who claims to have suffered by reason of the alleged abuse of process. Further, the particular circumstances in which the multiplicity of hearings comes about is necessarily relevant to the value judgment which must be made in such cases.
231 It follows that in this case it was necessary for the Tribunal to take into account and evaluate the significance of the fact that Mr Rayney elected to proceed with the hearing of his proceedings, and that the Tribunal directed the hearing of those proceedings, in circumstances in which it was clear to all that those proceedings would not resolve all matters in issue between Mr Rayney and the Committee, and that therefore an inevitable consequence of the stance adopted by Mr Rayney and endorsed by the Tribunal was a multiplicity of hearings.
233 In Aldi it was made clear that the positions adopted by the respective parties were of considerable significance to the assessment of whether or not there was an abuse of process. In particular, in that case, the fact that one of the parties, Aldi, had made its intention to commence another set of proceedings clear, and the other party had made no response to that clear statement of intention was held to be relevant to the question of whether the second proceedings were an abuse of process.[167] In that context Longmore LJ observed:[168]
[I]t seems to me to be inappropriate to make no response at that stage but then at a later stage, when intentions turn into action, to assert that that action is an abuse of process.
234 The same observations might be made in this case. The Committee had made its intentions clear with respect to the possibility of commencing proceedings against Mr Rayney which would extend beyond the matters upon which the Board relied for the purpose of cancelling Mr Rayney's practising certificate. With that knowledge, and therefore with knowledge of the prospect of a further hearing following the determination of the proceedings which he had commenced in the Tribunal, Mr Rayney pressed for and obtained orders which had the effect that his proceedings were heard separately from the Committee's proceedings. When the Committee's expressed intentions became a reality and it commenced proceedings raising issues which went beyond the issues raised in Mr Rayney's proceedings, he continued to press for a hearing of his proceedings at a time which would preclude them being heard in tandem with the Committee's proceedings. In those circumstances it is difficult to see how he could be heard to contend that the separate hearing of the Committee's proceedings gave rise to an abuse of process, although, of course, that is not in fact what Mr Rayney contended. As I have noted his case was based solely on the proposition that the Committee was bound by the Board's election not to pursue the matters which the Committee wished to pursue.
235 In Aldi all members of the court also made it clear that in cases where there was a prospect of multiple proceedings, it was essential for the parties to bring that prospect to the attention of the court in order that the court could make appropriate directions in both the interests of the parties and the public interest.[169] Precisely the same point was made by the Master of the Rolls, Sir Anthony Clark in Stuart v Goldberg Linde, in reasons which emphatically endorsed the approach taken in Aldi.[170]
236 In this case the Committee quite properly brought the prospect of multiple proceedings to the attention of the Tribunal at the earliest opportunity, and repeatedly thereafter. With knowledge of the prospect of multiple hearings the Tribunal made directions which converted that prospect into an inevitability, and rejected the Committee's implicit invitation to make directions which would enable all matters to be heard concurrently. In those circumstances, in the absence of a finding of fault or neglect on the part of the Committee[171] it is manifestly unreasonable to attribute responsibility for the multiplicity of hearings to the Committee and to characterise the Committee's conduct as an abuse of process.
237 For these reasons, the position adopted by Mr Rayney with respect to the hearing of these proceedings, and the fact that the Tribunal made directions which would inevitably result in a multiplicity of hearings were each matters which the Tribunal was obliged to take into account and evaluate when assessing whether or not the Committee's proceedings were an abuse of process. Because the Tribunal took the view that those matters were irrelevant, on the basis of its erroneous findings with respect to the conduct of the Committee, it excluded from consideration matters which it was obliged to evaluate, thereby vitiating its decision. Ground 5 must be upheld.
238 Ground 6 asserts that the Tribunal erred in law by finding that the Committee's proceedings were an abuse of process because the Committee could and should have brought its proceedings such that they could be heard in tandem with Mr Rayney's proceedings, because that conclusion depended upon the errors made and identified in grounds 4 and 5. It seems that the ground has been included out of an abundance of caution, so as to ensure that the Tribunal's ultimate conclusion on what I have described as the second substantive reason for dismissing the Committee's proceedings was directly challenged by a ground of appeal.
239 It will be apparent from the reasons I have already given that the Tribunal's ultimate conclusion on that issue depended upon the various steps in the process of reasoning which are challenged by grounds 4 and 5. It follows that the success of those grounds necessarily results in the success of ground 6.
240 The written submissions advanced on behalf of Mr Rayney in opposition to this ground draw attention to the Committee's failure to adduce any evidence on the question of whether it could have commenced its proceedings in such a way that they could be heard in tandem with Mr Rayney's proceedings. In that context it is submitted that:[172]
It was open for the Tribunal, in the absence of any evidence, to conclude that the [Committee] had a proper opportunity to proceed in tandem with the review proceedings and in the circumstances of this matter, should have done so.
In this regard, the [Committee's] conduct of the application before the Tribunal failed to discharge an evidentiary onus on the [Committee] to explain to the Tribunal why it could contend it was not reasonable to proceed in tandem with the Board's proceedings.
241 The obvious flaw in these submissions is that Mr Rayney never contended to the Tribunal that an abuse of process arose from the Committee's failure to ensure that its proceedings were heard in tandem with Mr Rayney's proceedings. There was therefore no reason for the Committee to adduce any evidence on that topic nor any evidentiary onus upon the Committee to explain its position to the Tribunal.
243 For these reasons all grounds of appeal should be upheld. As the effect of the Tribunal's decision was to dismiss the Committee's proceedings prior to any determination of those proceedings on their merits, leave to appeal should be granted, the appeal allowed, the decision of the Tribunal dismissing the Committee's proceedings set aside and Mr Rayney's application to dismiss those proceedings should itself be dismissed. The matter should be remitted to the Tribunal differently constituted for substantive hearing and determination.
244 MURPHY JA: I agree that the appeal should be allowed for the reasons given by the Chief Justice. In relation specifically to ground 4, I agree that the ground should be allowed on the bases that the challenged findings are not supported by any evidence before the Tribunal or arose from the failure to correctly apply relevant legal principles. It is unnecessary, for the disposition of this appeal, to consider the contention that 'Wednesbury' unreasonableness may apply to fact-finding as opposed to discretionary decisions.
[1] Letter from Committee to Bennett + Co, 30 July 2015.
[2] Letter from Committee to Bennett + Co, 10 August 2015.
[3] Letter from Bennett + Co to Committee, 11 August 2015.
[4] Although the application to the Tribunal contains eight grounds, those grounds correspond generally to the seven topics identified in the Committee's letter to Mr Rayney's solicitors of 9 October 2015.
[5] Legal Profession Complaints Committee and Rayney [2016] WASAT 142 [30] (LPCC and Rayney).
[6] LPCC and Rayney [52], [55].
[11] LPCC and Rayney [91] - [95].
[13] Affidavit of Mr N D Pope, sworn 11 August 2015 [27].
[16] LPCC and Rayney [125] - [126].
[17] LPCC and Rayney [135] - [136].
[18] LPCC and Rayney [151] - [152].
[19] LPCC and Rayney [161] - [162].
[20] LPCC and Rayney [170] - [176].
[23] See for example LPCC and Rayney [175] - [176] (above), [181], [191] - [192], [250], [258].
[24] LPCC and Rayney [209] - [211].
[28] Although it is quite possible, perhaps likely, that the expression 'abuse of process' is used by the Tribunal in order to emulate the terminology of s 47 of the SAT Act, rather than indicate the precise legal reasoning applied.
[30] LPCC and Rayney [222] - [223], [226].
[32] LPCC and Rayney [240] - [244].
[37] LPCC and Rayney [289] - [295].
[39] Subject to an exception not relevant to this case: SAT Act s 105(2), s 105(13).
[40] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16].
[41] Paridis [17] - [18], relying upon Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, 337 [16].
[57] Defined by s 4 of the LPA to mean a person who is admitted to the legal profession under the LPA or the corresponding law of another jurisdiction.
[58] See generally LPA pt 5 div 3 - 10.
[59] Defined by s 5 of the LPA to mean an Australian lawyer who holds a current local or interstate practising certificate.
[60] Part 13 of the LPA is the Part which deals with complaints and discipline, and deals extensively with the functions and responsibilities of the Committee.
[69] Although at least six members of the Board will also be members of the Committee: LPA s 556.
[76] See, for example, appeal ts 46 - 47.
[80] LPCC and Rayney [57] - [59], [65].
[82] Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507.
[83] Tomlinson [22] (French CJ, Bell, Gageler & Keane JJ).
[84] Tomlinson [22] (French CJ, Bell, Gageler & Keane JJ).
[85] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589.
[86] LPCC and Rayney [52], [215], [284].
[87] Tomlinson [23] (French CJ, Bell, Gageler & Keane JJ).
[88] Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271.
[90] Tomlinson [17] (French CJ, Bell, Gageler & Keane JJ).
[91] Herman HM, Commentaries on the law of estoppel and res judicata (vol 1 1886) 148; quoted in Tomlinson [29].
[93] Tomlinson [35] (French CJ, Bell, Gageler & Keane JJ), [105] (Nettle J).
[94] Tomlinson [39] (French CJ, Bell, Gageler & Keane JJ).
[96] Young v Public Service Board [1982] 2 NSWLR 456.
[97] Young v Public Service Board (465 - 466).
[98] Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44 (Timbercorp).
[99] Timbercorp [53] (French CJ, Kiefel, Keane & Nettle JJ), [141] (Gordon J).
[100] Timbercorp [54] (French CJ, Kiefel, Keane & Nettle JJ), [131], [143] (Gordon J).
[102] As the reasons given at [215] strongly suggest.
[103] Tomlinson [24] - [26] (French CJ, Bell, Gageler & Keane JJ).
[104] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393, citing Reichel v Magrath (1889) 14 App Cas 665, 668; Coffey v Secretary, Department of Social Security [1999] FCA 375; (1999) 86 FCR 434, 443 [25].
[105] Champerslife Pty Ltd v Manojlovski & Anor [2010] NSWCA 33; (2010) 75 NSWLR 245 (Champerslife).
[106] Champerslife [111] - [112], citing Johnson v Gore Wood & Co [2002] 2 AC 1, 31 (Lord Bingham)
[107] Champerslife [114] - [115].
[108] With whom the other members of the court agreed.
[109] Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130 [113].
[110] Slaveska v State of Victoria [2015] VSCA 140 [157] (Warren CJ, Tate JA & Ginnane AJA).
[111] In the matter of HIH Insurance Ltd (in liq); De Bortoli Wines (Superannuation) Pty Ltd v McGrath [2014] NSWSC 774 [59], [77] - [78].
[112] See Stuart v Goldberg Linde (a firm) [2008] ECWA Civ 2; [2008] EWHC 2325; [2008] 1 WLR 823 [70] (Lloyd LJ), referred to below in connection with ground 5.
[115] See s 32 of the SAT Act where the principles of procedural fairness are described as 'the rules of natural justice'.
[116] LPCC is a reference to the Committee, LPBWA is a reference to the Board, and proceedings VR 132 of 2015 are what I have described as Mr Rayney's proceedings.
[117] Submissions of 23 June 2016 [8].
[118] Submissions of 23 June 2016 [18] - as I have noted, the Tribunal accepted these propositions but also held that they were entirely consistent with the scheme of the LPA.
[119] Submissions of 23 June 2016 [18.4] - a proposition rejected by the Tribunal and not contested in this appeal.
[120] Submissions of 23 June 2016 [59].
[121] Submissions of 23 June 2016 [61.2] (original emphasis).
[122] Submissions of 23 June 2016 [67].
[123] Submissions of 23 June 2016 [68] (original emphasis).
[124] Committee's submissions of 11 July 2016 [8].
[125] Submissions of 26 July 2016 [4], [5.1].
[139] The allowance of ground 1 means that the first substantive reason given by the Tribunal for dismissing the Committee's proceedings must be set aside, and the allowance of grounds 2 and 3 means that the second substantive reason given by the Tribunal for dismissing the Committee's proceedings must also be set aside.
[140] Other than in one category of circumstance not applicable in this case - see s 105(13) SAT Act.
[141] Paridis [54], quoting Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 58 FLR 407, 410 - 411.
[142] Paridis [56], citing Federal Commissioner of Taxation v McCabe [1990] FCA 389; (1990) 26 FCR 431.
[143] Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 [212].
[144] There remains a question as to whether the principles of unreasonableness enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, as explained by the High Court of Australia in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, apply to findings of fact, which has not been finally resolved by the authorities in this area - see Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109 [58]; Guidice v Legal Profession Complaints Committee [2014] WASCA 115 [35]; The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346. It is unnecessary to resolve that question in this case, as all factual issues raised can be determined by the application of conventional principles relating to 'no evidence'.
[145] LPCC and Rayney [175], [181], [189], [191] - [192], [258].
[147] Which I have set out above at [109].
[148] Which I have also set out above at [108].
[150] LPCC and Rayney [172] - [174], [248] - [249], [257], [259].
[152] LPCC and Rayney [226] - [227], [236] - [237], [239].
[153] LPCC and Rayney [225] - [226].
[156] Rayney and Legal Practice Board of Western Australia [2016] WASAT 7 [119] - [123].
[157] LPCC and Rayney [292] - see above [81].
[158] See, for example, Gill v Walton (1991) 25 NSWLR 190, 201; Walton v Gardiner (398).
[160] (1991) 25 NSWLR 190, 201.
[163] See Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 - 40 (Mason J).
[164] LPCC and Rayney [258] - [259].
[166] Aldi Stores Ltd v WSP Group Plc [2007] EWCA Civ 1260; [2008] 1 WLR 748.
[167] Aldi [22] (Thomas LJ, Wall & Longmore LJJ agreeing).
[169] Aldi [29] - [31] (Thomas LJ), [36] (Wall LJ), 42 (Longmore LJ).
[170] Stuart v Goldberg Linde [91] - [92].
[171] As I have noted, no assertion of fault or neglect on the part of the Committee was made on behalf of Mr Rayney, and although the Tribunal found such default and neglect, that finding cannot be sustained for the reasons I have given.
[172] Respondent's submissions [38] - [39].
(2007) 33 WAR 361
(1981) 147 CLR 589
(1968) 118 CLR 271
(2010) 75 NSWLR 245
(1990) 26 FCR 431
(2015) 256 CLR 507
(1993) 177 CLR 378
(1999) 86 FCR 434
(1981) 58 FLR 407
(1991) 25 NSWLR 190
(2015) 233 FCR 315
(2012) 36 VR 130
(1986) 162 CLR 24
(2013) 249 CLR 332