LEGAL PROFESSION COMPLAINTS COMMITTEE -v- RAYNEY [2017] WASCA 78 (26 April 2017)

LEGAL PROFESSION COMPLAINTS COMMITTEE -v- RAYNEY [2017] WASCA 78 (26 April 2017) - WASCA 2017 case summary — Zoe

[151]

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.

[245]

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)

[251]

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.

[298]

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.

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Judgment (473 paragraphs)

LEGAL PROFESSION COMPLAINTS COMMITTEE -v- RAYNEY [2017] WASCA 78 (26 April 2017)

Mr Rayney's written submissions in support of his application

Legislation Cited (4)

Cases Cited (14)