After an investigation under section 421 is completed, the Complaints Committee must -

(a) in the case of the investigation of a complaint, dismiss the complaint under section 425, ... ; or

(b) take action under section 426; or

(c) refer the matter to the State Administrative Tribunal under section 428.

1. Section 425 provides for dismissal of complaints following investigation.[12] It provides:

After an investigation of a complaint against an Australian legal practitioner is completed, the Complaints Committee may dismiss the complaint if satisfied that -

(a) there is no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct; or

(b) it is in the public interest to do so.

1. Section 426 provides for a 'summary' process to be performed by the LPCC in some circumstances. It provides that the LPCC has power to impose somewhat moderate measures on the practitioner (e.g. a public reprimand, a fine not greater than $2500, a compensation order or an order that the practitioner take advice) if, following completion of the investigation, the LPCC is satisfied that: (1) there is a reasonable likelihood that the Tribunal would find the practitioner guilty of unsatisfactory professional conduct but not professional misconduct; and (2) the practitioner is 'generally competent and diligent'; and (3) the action is otherwise justified in the circumstances of the case.
2. Section 427 requires that the LPCC must 'cause a record of each decision under section 424, together with reasons for the decision, to be kept in respect of each investigation under section 421'.
3. Section 428 provides for the referral of a matter to the Tribunal 'if [it] determines that a matter should be heard by the ...Tribunal'.
4. Division 8 of Part 13 is headed 'General procedural matters'. It requires that the LPCC, in conducting its procedures, is bound by the rules of procedural fairness but not the rules of evidence[13] and requires that the LPCC must 'deal with complaints as efficiently and expeditiously as is practicable.[14]
5. Section 432 provides for the notification of certain decisions. It provides:

(1) If a complaint has been made about an Australian legal practitioner ... the Complaints Committee must notify the complainant and the Australian legal practitioner of -

(a) a decision under section 424(1)(a) in relation to the matter; or

(b) a decision under section 426 in relation to the matter; or

(c) a decision to refer the matter to the State Administrative Tribunal.

(2) In the case of a decision under section 424(1)(a) or 426 the notice must include -

(a) a statement of reasons from the Complaints Committee in relation to the decision; and

(b) notification of the right of the complainant, if any, to apply to the State Administrative Tribunal for a review of the decision.

1. Section 435 creates a right of review of a dismissal of a complaint or of a decision to deal with a complaint summarily. It provides:

(1) Subject to subsection (2), a person aggrieved by -

(a) a decision of the Complaints Committee to dismiss a complaint; or

may apply to the State Administrative Tribunal for a review of the decision.

(2) If the Complaints Committee, in its reasons for its decision, specifically finds the complaint -

(a) to be trivial, unreasonable, vexatious or frivolous; or

(b) in the case of a complaint purporting to be made under section 410(1)(e), to be a matter in which the complainant does not have, or did not have, a direct personal interest,

the person aggrieved cannot apply to the State Administrative Tribunal for a review of the decision without the leave of the Tribunal.

1. Under the LP Act, Mr Daily was the Law Complaints Officer and held delegated authority under the LP Act from the LPCC.[15]
2. On 30 June 2022, he affixed his signature to the bottom of a Memorandum prepared for him by a Mr Hevron.[16]
3. The subject of Mr Hevron's Memorandum was the applicant's complaints against the second and third respondent. The Memorandum concluded with the following Recommendation:

For the reasons set out in the accompanying letters it is recommended that the complaint be dismissed pursuant to sections 425(a) & 415(1)(b) of the [LP] Act.[17]

1. The evidence of the first respondent is that on 30 June 2022 he affixed his electronic signature to the Memorandum. That is consistent with a copy of the Memorandum annexed to his Supplementary Affidavit. [18] The copy shows that above the first respondent's signature on the Memorandum are the words:

Approved after discussions with the author [i.e. Mr Hevron] and some amendments on 30/6/22 by:

1. Having so affixed his signature, the first respondent sent a draft letter addressed to the applicant to two other staff members of the LPCC under cover of an email that said as follows:

Good afternoon

Could I please ask one of you to proof read the letter and if all OK PDF, send etc and close case as of today's date. Please could we do an email/ letter to the lawyers in the usual form (Steph has) attaching the letter too.

No more today - thankyou both (and you too [Mr Hevron])

Thank you

Kind regards[19]

1. The draft letter addressed to the applicant, which was attached to that email, was dated 30 June 2022 and advised that:

(a) the ground of her complaint that the second and third respondents ignored her instructions in relation to the termination of their retainer, and the ground that they failed to provide certain advice, were both dismissed pursuant to s 425(a) of the LP Act; and

(b) her ground that the second and third respondents bullied her, and her ground that they failed to prepare for her trial, were dismissed under s 415(1)(b) of the LP Act as lacking in substance.[20]

1. As noted previously, although the first respondent asked in his email of 30 June 2022 that the letter be sent to the applicant the same day, it was not sent until 4 July 2022 when it was sent by one of the staff to whom his email was addressed.[21]

1. Although it was not in dispute, it is useful to note (and, indeed, find, as we do) that the first respondent made its decision to dismiss the complaint pursuant to powers set out in sections 415 and 425 of the LP Act. That is so regardless whether or not that decision to dismiss was in fact made before or after the LP Act was repealed on 1 July 2022.
2. That is because:

(a) if the decision was made prior to that date, the LP Act was still in force; and

(b) if the decision was made after that date, s 313 of the Application Act applies so that the LPCC's power of investigation and determination continued to have operation in relation to the complaint.[22]

1. The question here, however, is not so much the source of the power under which the first respondent's decision was made, as when the first respondent made that decision.
2. That is critical because, as was explained in Charisteas:

(a) the applicant has no right to seek review of that decision under the LP Act if the decision was made after 30 June 2022;[23] and

(b) there is no right of review at all under the legislative regime that replaced the LP Act, if the decision in question was made after 30 June 2022.[24]

1. As noted above, the application for review was lodged on 29 July 2022. The question of the date on which the first respondent's decision was made was raised by the Tribunal ahead of a directions hearing listed for 13 September 2022.
2. In response to the issue being raised, Mr Daily affirmed his primary affidavit on 9 September 2022.
3. At the directions hearing on 13 September 2022 it was common ground between the parties that the first respondent's decision was made on 30 June 2022[25] and orders were made programming the matter, including the joinder of the second and third respondents, and the filing of bundles of documents.
4. However, and critically, at that directions hearing the Tribunal neither gave any consideration to the date on which the decision was made, or to the consequential question whether the Tribunal had jurisdiction. Accordingly, no findings or orders in that regard were made.
5. Further orders were subsequently made for the matter to be programmed through to a determination 'on the papers', pursuant to which written submissions were filed in November 2022.
6. However, those submissions appear to have prompted applications for the filing of further documents which meant that the matter was not reserved for final determination until orders were made to that effect in March 2023.
7. The reasons for the decision in Charisteas were delivered at the end of June 2023. They addressed, for the first time, the question whether a complainant had the right to seek review of a decision dismissing their complaint if it was made after 1 July 2022.
8. It therefore raised very clearly the question whether or not the first respondent's decision in this matter was made before or after that date.
9. The parties were advised by the Tribunal of the need to address the issue and a directions hearing was held on 21 July 2023, following which the applicant and first respondent filed written submissions.

1. By its Supplementary Submissions of 16 August 2023, the first respondent submitted that the Tribunal lacked jurisdiction because no decision was made on 30 June 2022. Rather, it was submitted, the decision in question was made on 4 July 2022.
2. That is so, he submits, because although on 30 June 2022 the first respondent turned his mind to the issue, he formulated a decision in his mind, and he took steps to record that decision (by, for example, affixing his signature to the Memorandum), he had not communicated that decision to the applicant, or indeed anyone at all, save for other LPCC staff.
3. The first respondent's case is neatly encapsulated in the following:

The weight of authority ... indicates that even if the relevant statute contains a provision for notification subsequent to the making of a 'decision', there must be an act of external communication or manifestation, either oral or written, in order for the 'decision' to be formalised.[26]

1. In her Supplementary Submissions filed 31 August 2023, the applicant, by contrast did not directly address the question as to the date on which the first respondent decided to dismiss the complaint.
2. However, by implication those submissions accepted that the decision had been made on 4 July 2022, rather than 30 June 2022.
3. We draw that inference because the primary focus of the applicant's Supplementary Submission was that the decision in Charisteas is wrong and ought not to be applied.
4. The applicant sought to undermine the decision in Charisteas by submitting that it was inconsistent with the Tribunal's previous decision in Goldsmith[27] and that the latter ought to prevail.
5. The applicant's Supplementary Submissions also referred to reports of the WA Ombudsman, which were critical of the LPCC, particularly going to the timeliness of its decisions. In that way, the applicant was critical of the LPCC for its delay in making the decision.
6. The applicant also referred to aspects of the Ombudsman's reports which spoke of certain aspects of public policy going to how the LPCC ought to conduct its investigations. The applicant submitted that the terms of the LP Act implemented those policy positions in various ways.
7. Again, the point being made appeared to be limited to a criticism of the LPCC's timeliness in the handling of her complaint.
8. At their highest, the applicant's submissions in this regard might be read as suggesting that the Ombudsman's views as to the relevant policy behind the relevant provisions of the LP Act informs the proper construction of those provisions. The applicant appeared to rely upon them in that regard in support of the submissions going to the correctness of Charisteas and/or that Goldsmith ought to prevail over that decision.
9. Given what follows, it is unnecessary for us to address this aspect of the applicant's submissions.
10. Finally, in this regard, we note that neither party addressed the question of the proper construction of s 319 of the Application Act, which is the provision under which the application was filed.

1. In Goldsmith, the Tribunal was concerned with conduct alleged against Mr Goldsmith which occurred prior to 1 July 2022, was the subject of a referral by the LPCC to the Tribunal made prior to that date, and was also subject to findings made by the Tribunal before that date.[28] The relevant issue in Goldsmith, which is relied upon by the applicant in this case, was the ongoing application of the LP Act in determining the issue of penalty and costs, given that the determination of those issues in Goldsmith occurred after that date.[29]
2. The Tribunal in Goldsmith held that the relevant provisions of the LP Act continued to apply so that the Tribunal could, and did, make findings as to penalty and costs under that Act.
3. In doing so, the Tribunal held that there is no express provision in either the Application Act, or the Uniform Law which it implements, that applies in such circumstances.
4. Rather, it noted that pursuant to s 261 of the Application Act, the provisions of the Interpretation Act 1984 (WA) (Interpretation Act) govern the transition from the LP Act to the Application Act, save where there is a contrary intention expressed in the latter statute.
5. The Tribunal held that there was no such contrary intention evident in the Application Act and that, therefore, s 37(1)(d) of the Interpretation Act applied to preserve the liability in Mr Goldsmith created by the Tribunal's findings made prior to the date of repeal. Accordingly, the Tribunal proceeded to impose penalty and costs orders pursuant to the LP Act.
6. It is to be noted that the primary decision in Goldsmith, which found Mr Goldsmith guilty of professional misconduct, was the subject of a successful appeal.[30] The factual basis on which the Tribunal made its findings that are relevant to the present case has, therefore, been removed. However the appeal did not address the principles relied upon by the applicant in this case and we see no reason to doubt their correctness.
7. The principle in Goldsmith was extended in Bostock[31] where the Tribunal held that where conduct which occurred prior to 1 July 2022 is the subject of referral by the LPCC to the Tribunal before that date, but where the Tribunal has not made findings in that regard before that date, the Tribunal is to proceed under the terms of the LP Act after that date.[32]
8. The situation in Charisteas was quite different to that in Goldsmith (and Bostock) because, while the conduct the subject of the complaint in Charisteas, and the complaint itself, occurred and were made prior to 1 July 2022, the LPCC did not make its decision to dismiss the applicant's complaint until after that date.
9. The Tribunal in Charisteas held, in that scenario, that the decision-making powers of the LPCC (under its new name, the Legal Services and Complaints Committee - LSCC[33]) under the LP Act continued to apply after that date because of s 313 of the Application Act. That section provides, amongst other things, that where a complaint to the LPCC is not finalised prior to 1 July 2022, the LPCC has the power and authority to determine the complaint under the provisions of the LP Act.[34]
10. However, and most critically for the present case, the Tribunal in Charisteas also held that s 313 of the Application Act does not address the right of a complainant to seek review of a decision by the LPCC dismissing their complaint. That is, the Tribunal held that the scope of s 313 of the Application Act is limited to the power and activities of the LPCC in dealing with a complaint and does not extend to the rights of parties after it has done so. [35]
11. The Tribunal in Charisteas also held that s 37(1) of the Interpretation Act does not operate to enable the complainant to apply under s 435 of the LP Act for the review of a decision dismissing a complaint made by the LSCC after 1 July 2022.[36]
12. That is so, the Tribunal held, because under the LP Act the right to seek a review under s 435 arises upon the decision of the LPCC. If the LPCC's decision was not made before the LP Act was repealed by the Application Act, then no right to seek review was created prior to the repeal upon which s 37(1) can operate to preserve.[37]
13. Accordingly, we do not accept that the Tribunal's decision in Goldsmith is inconsistent with that in Charisteas and there is, therefore, no need for us to determine which of the two decisions ought to 'prevail' or otherwise be applied in this case.
14. In our view there is nothing in Goldsmith that applies to the current set of facts. It was not concerned with a complainant's right to seek review of a decision dismissing the complaint. By contrast, in our view, and we find, the decision in Charisteas is directly on point. That is, if the decision made by the first respondent was made on 30 June 2022, the LP Act applies and the application for review of the decision is valid. But if the first respondent's decision was made on 4 July 2022 then, consistently with Charisteas, there is no right of review under s 435 of the LP Act (per paragraphs 66 to 68 above) or s 319 of the Application Act (per paragraphs 71 - 75 below), and the Tribunal lacks the jurisdiction to determine the application.
15. We now turn to s 319 of the Application Act, which was the provision by which the applicant filed the current application.
16. Charisteas also addressed that question.[38] The Tribunal held:

That section applies to applications for review of decisions of the first respondent that were made prior to 1 July 2022 - s 319(1)(a)(i) concerns applications for review commenced prior to that date, which necessarily requires a decision of the first respondent prior to that date, while s 319(1)(a)(ii) concerns applications made under s 318, which in turn allows for applications to be made after 1 July 2022 in relation to decisions made by the first respondent prior to that date.

1. In Charisteas the parties accepted that the facts of that case fell into neither of those two categories.
2. As noted above, neither of the parties in this case addressed the issue, but it is plain, and we find, that the facts of this case do not fall into the first category; that is, the application for review was commenced after 1 July 2022 and s 319(1)(a)(i) of the Application Act therefore does not apply.
3. However, s 319(1)(a)(ii) will apply if we find that the first respondent's decision was made prior to 1 July 2022. As noted above, the Tribunal in Charisteas held that the sub-paragraph concerns applications for review made under s 318 of the Application Act, which in turn allows for applications for review to be made after 1 July 2022 in relation to decisions made by the first respondent prior to that date subject to certain limits which do not appear to apply here.
4. It is therefore necessary to address the question as to when the first respondent's decision was made.

What is the Date on Which the Decision Was Made?

1. As noted above, the first respondent has altered its position as to when it submits that the decision in question was made.
2. The basis for that alteration is a consideration of cases which concern the timing of a decision where the statutory context imposes an obligation to give notice of the decision, which is the situation in this case.
3. Section 432 of the LP Act, as is set out above, requires the LPCC to notify the 'complainant and the ... practitioner' of:

(a) a decision under section 424(1)(a) in relation to the matter; or

(b) a decision under section 426 in relation to the matter; or

(c) a decision to refer the matter to the ...Tribunal.

1. In each case the language of the subsection suggests that the notice that must be given is of a decision that has already been made; that is, the process of making the decision is complete before the notification occurs. Section 427 also appears to proceed on the same basis.
2. It would appear that the first respondent's initial position was based on the view that, due to s 432 (and perhaps s 427) a decision made under ss 424(1)(a), 426 or 428 is complete prior to any notification of that decision to interested parties.
3. Upon further consideration of the authorities, and in particular Semunigus Appeal[39] and the cases that follow it, the first respondent is now of the view that the notification of the parties of a decision is a necessary element of the decision-making process such that the process is not complete, and the decision is not made, until notification has occurred.
4. We wish to make clear that we make no criticism of the first respondent in altering its position. Given its statutory function, as part of the Legal Practice Board, of regulating the legal profession it is appropriate that it alter its position to align with what it considers to be the correct state of the law.
5. The first respondent relied primarily upon the decision of the Full Federal Court in Semunigus Appeal in support of its submission that a decision is not complete unless and until it has been notified to interested parties, even where the statutory context appears to distinguish between the decision and its notification.
6. In Semunigus Appeal, the decision in question was one made by a delegate of the Refugee Review Tribunal (RRT). On 12 June 1998, the delegate signed reasons for decision refusing the applicant's application for a protection visa and then, as described by the judge at first instance, 'handed the decision to the RRT registry staff for processing'.[40] Following that, but on the same day, the applicant sent further submissions to the RRT which were received by the Tribunal's registry staff .[41]
7. Both the judge at first instance (Finn J) and the Full Federal Court were concerned with whether the RRT was functus officio at the time the further submissions were made such that the RRT was unable to have regard to them.
8. Finn J held:
   1. ...the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion - as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final.
   2. What constitutes such an act can obviously vary with the setting in which the decision is made: it may be no more than a written notation of a conclusion on a departmental file; it may be publication of the conclusion in a particular forum, or communication of it to another; it may be performing a consequential or collateral act that presupposes the decision's having been made, etc.[42]
9. Finn J then noted statutory provisions which obliged the RRT to record its decision in a 'written statement' and to give a copy of that statement to the applicant and the Secretary of the Department. He also noted that the statute made the right of review to the Court time-limited, and that time ran from the applicant being 'notified of the decision'. Having done so he noted the internal procedures of the Tribunal for the finalisation of a decision which included the creation of three documents, the first being a record of the final decision and its date, the second being the notice to the applicant, and the third being a note signed by the Member to the case management team directing return of documents to the Department.[43]
10. Finn J held that those provisions pre-suppose that the decision itself is complete prior to the notice being given. He said that the date of the decision:

can best be identified by identifying the date on which duties consequent upon it have arisen. The very nature of those duties presuppose the finality of the decision.[44]

1. On appeal, all three judges agreed with the statement of principle put by Finn J at paragraph [19] of his reasons (above) that a decision requires both a mental process and an overt act which gives the decision finality.
2. However, there was a difference between the three appeal judges on whether such an overt act had occurred on the facts in that case.
3. Madgwick J held that the decision was final upon the 'dispatch of the ... [written] statement'.[45] But he also held that that was not the only way the decision may have been made final. That was so because the decision could have been given orally. The critical aspect for Madgwick J was the making public of the decision. He held:
   1. As a matter of undoubted fact, the conclusion to which the RRT member had arrived in his own mind had not been communicated to anyone outside the RRT's own staff. The taking of administrative steps, as part of an orderly general system of case management, to have support staff communicate the decision (and the reasons for it) to the parties could therefore plainly have been halted or countermanded by the RRT member. That must be the case, as a matter of administrative necessity: a RRT member might have had second thoughts about the proper factual conclusions in a case; or a new judicial decision might change the member's understanding of the relevant law. Mere case management practices, even if publicly decreed, cannot stand in the way of justice being done: Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146.
   2. In a case of the kinds dealt with by the RRT, a decision is no decision, in my opinion, until either it has been communicated to the applicant or irrevocable steps have been taken to have that done. I speak of communication to the applicant because, before the RRT, the applicant is the only party. There is no need to regard a decision as irrevocable before it must be considered to have passed into the public domain.
   3. As a matter of the RRT's usual practice, the "overt act", in Finn J's apt phrase, required to complete the decision will generally be the dispatch of the s 430(2) statement. In such a case, s 430(2) is complied with by the very act of making the decision. But that is only so because of the way the RRT has chosen to complete the making of the decision. That usual practice is not, however, the only way that a decision may legally be completed. It might be completed by the RRT communicating it orally to an applicant at the conclusion of a hearing: the RRT might wish to end an applicant's uncertainty as to his or her fate at the earliest opportunity, the case may be as plain as a pikestaff, yet it may still take some time to prepare the s 430(2) statements.
   4. Section 430 of the Act is chiefly relevant to this matter for the distinction it draws between the making of the decision and the preparation of a written statement of it and about it. The purposes of the distinction and the time limits are, in my view, principally to insist that full written reasons for the decision are given, that this be done promptly, and to ensure that the Minister as well as the applicant will have timely written notice of the decision itself. The decision itself may, as I have indicated, be given, or "made", orally. Section 430(2) recognises that the subs (1) "statement" is to be prepared after the "decision ... is made". It is silent as to how and when the decision itself is made. There is, in my opinion, no decision unless it is pronounced or such steps are taken towards its pronouncement as would make it embarrassing to the RRT that the pronouncement of what has been concluded should not be effectuated. Section 439 obliges the RRT's staff to observe confidentiality; there can be no embarrassment to the RRT in their knowing that the RRT has decided to reconsider an intended decision. The mere adoption and execution of processes, not statutorily required and entirely internal to the RRT's own establishment, cannot in my view qualify as the necessary "overt act". Neither a general understanding of when a decision such as those made by the RRT is complete, nor the specific terms and context of the Act require that the antecedent actual decision is to be regarded as complete despite its non-communication to anyone except the RRT's own privies.[46]
4. Spender J dismissed the appeal on other grounds but held, after agreeing with the above statement of Finn J, that:

There is little evidence touching the question whether the decision by the Member of the RRT, in this particular case, was "beyond recall". I think it likely that, had the Member wanted to recall his signed decision, because, for example, he had changed his mind or had realised that he had made a mistake, he would have been able to retrieve the decision at any time prior to a copy of it having been sent to either the Minister or the applicant as then required by s 430(2) of the Migration Act 1958 (Cth) (the Act).[47]

1. Higgins J was closest in his reasoning to that of Finn J. He held:
   1. It follows from the above that I accept the submission of counsel for the appellant that there must be some overt act performed by the decision-maker putting it beyond his or her power to recall or change the decision thus made.
   2. However, I agree with counsel for the respondent that delivery of written reasons for decision, together with notice of it, to the parties, though required by s 420(2), is recognised by the statute as an event following the making of the decision to which the reasons relate. It is not an integral part of the process of making the decision.
   3. Whilst appeal rights do not commence to expire until delivery of reasons there must be a date before that upon which the decision was made so as to enliven the obligation to undertake the delivery of reasons which, in turn, causes the period for appeal to commence running.
   4. The mere writing of reasons pursuant to an opinion the decision-maker expects to be final does not put it beyond the power of a decision-maker to change his or her mind. Nor, in my opinion, would the signing of a document incorporating such an opinion constitute the making of a decision. It is not beyond recall. No person apart from the decision-maker (and, perhaps, his or her personal staff) is aware that an opinion has been expressed. However, once that decision is published, even if not yet to the affected parties, it is made. After that point, it can be established objectively that the decision-maker has made that decision rather than another. Given the procedures adopted by the RRT, it seems to me that once the reasons for decision were delivered to and recorded in the Registry of the RRT, the decision was made. That is not to say that in a different statutory and procedural context, a decision might not be "made" though less formally recorded or notified.[48]
2. As was submitted by the first respondent, the approach taken by Madgwick J and Spender J, rather than that of Higgins J, has been adopted by subsequent iterations of the Full Federal Court.[49]
3. In SZQOY[50] the Full Court was concerned with a very similar question as in Semunigus: 'whether the [RRT]... became functus officio when a member of the RRT electronically transmitted to the Registry of the RRT a written decision, with a view to the decision being notified to the [visa applicant] and to the Secretary of the Department...'[51]
4. Buchanan J held that he was 'unable to agree' with Higgins J's reasons in Semunigus Appeal 'as a matter of principle' and stated that 'the principles stated by Madgwick J and echoed by Spender J are a correct statement of the legal position'.[52] He went on to say in the same paragraph:

In the present case there was, in my view, no support in the evidence or in any of the statutory provisions relied upon by the appellant to suggest that it was beyond the power of the member of the RRT to recall the decision which had been sent to the Registry through the RRT's electronic case management system.[53]

1. Logan J agreed with Buchanan J[54] and went on to 'amplify' his reasons for that agreement. Amongst other things, Logan J held:

The intellectual process in undertaking the core function of review is not an end in itself. The decision and reasons which are the result of that intellectual process must be made known to the persons interested. Those persons are the applicant for the review and the Secretary. It is only when the decision of the RRT as constituted by the particular member has either been pronounced orally or, if given in writing, sent to the applicant and to the Secretary in accordance with the notification obligation that the core function of review is complete. Before then, the member is entitled to have second (or more) thoughts perhaps on the basis of further reflection on all of the material hitherto to hand, perhaps stimulated by further material. At that stage, the matter is entirely intramural. Depending on the nature and source of that further material there may be procedural fairness obligations which fall upon the member before a final decision is made. That member is entitled to entrust to a registry officer the tasks of recording the decision and of notifying the applicant and the Secretary of that decision but the responsibility for so doing remains that of the member who has conducted the review. Until the decision has been sent out, that member is also entitled to countermand a direction to the registry to record and send out what has proved, upon the member's reflection, to be an earlier version of that member's decision.[55]

1. Barker J also agreed with Buchanan J[56] and made additional findings, saying that:

... there may be a number of reasons that, in practice, might arise following the formal signing of a decision and instruction that it be sent out in accordance with the Act, that might lead the decision-maker to realise that some aspect, if not the whole of, the decision recorded should be changed and corrected and to that end the materials that have been ordered to be sent out recalled for those purposes.[57]

1. In SZRNY[58] the Court was concerned with the point at which an application under the Migration Act is 'finally determined'. Section 5(9) of that Act provided, amongst other things, that that is when 'a decision that has been made in respect of the application is not, or is no longer, subject to any form of review'.
2. The appellant argued that a 'decision' in that sense had not been made until notice of it was actually received by him, such that no decision has yet been made if he has not received notice, even where notice of the decision had been communicated to the Secretary and sent to the applicant's previous address.
3. All three judges of appeal in SZRNY referred to the three judgments in SZQOY. Buchanan J, having explained his own reasoning in that case, held that there was no need for the applicant to obtain a copy of the decision for the decision to be final. For him, the issue was whether the decision had been put beyond recall. He held that it had because it had been made public:

I would accept in the present case that the RRT was functus officio in relation to the decision. Its decision had been put beyond recall. ... On any view, the decision had been published in a way which indicated that it could not be revised, amended, recalled or reversed even if the applicant had not been directly or effectively notified.[59]

1. But Mortimer and Griffiths JJ held that actual notice of the decision by the applicant was required before the application was 'finally determined'. Amongst other things they held:

In the ordinary course, one would expect that the conduct of a review of a primary decision would not be complete until steps were taken to notify interested parties of the decision. Reviews of administrative decisions affecting people's interests are not conducted solely for internal objectives pertaining to the reviewing entity. In most two-tiered administrative decision-making processes, telling those affected by a primary decision (and in particular the person who invoked the review jurisdiction in the first place) of the outcome of the review is an important element of the process. In our view the position is no different under the Act.[60]

1. Semunigus Appeal has also been referred to in other statutory contexts, with varying results.
2. Cahill[61] is the case closest in factual and statutory context to the present case. Mr Cahill was a legal practitioner engaged by Ms Li, who later complained about his conduct to the Victorian equivalent of the LPCC, the Victorian Legal Services Commissioner (VLSC).
3. Ms Li also sued Mr Cahill in the County Court. Having learned of the County Court proceedings, the VLSC dismissed the complaint on the basis that there was no utility in considering the complaint given that it would be addressed in those proceedings. However, the County Court proceedings were then dismissed by consent, after which the VLSC decided to continue its consideration of the original complaint (first decision) and, after further investigation, file four charges of professional misconduct against Mr Cahill (second decision).
4. Mr Cahill sought judicial review of the first and second decisions. He argued that once the Commissioner had dismissed the complaint he was functus officio.
5. Keogh J noted that the recommendation of the investigating officer was to dismiss the complaint on the basis of the County Court proceedings. His Honour then held:

The delegate of the Commissioner accepted the recommendation and, by sending the notifying letters to Ms Li and Mr Cahill on the same day, implemented the decision to dismiss the complaint. The memorandum is evidence of a conclusion by the delegate that the complaint did not require further investigation because the issues it dealt with were identical to those in the County Court proceeding.[62]

1. The underlined passage appears to be contrary to the reasons of Madgwick J and Spender J in Semunigus Appeal. That is, Keogh J appears to have held that the Commissioner's decision to dismiss Ms Li's complaint was complete upon the endorsement of the unequivocal recommendation and was, therefore, separate and distinct from the sending of notification letters. That appears evident from his finding that those letters implemented the decision previously made.
2. However, we are (with respect) reluctant to place much weight on this decision. That is because, while his Honour noted (in a footnote and without further elaboration) that the applicant relied upon Semunigus Appeal in support of his application for review, he made no further mention of it.
3. Certainly, there is no acknowledgment by his Honour that his finding might be seen to be at odds with the majority reasons in Semunigus Appeal, and there is no engagement by him with the reasons in Semunigus Appeal, or of the differences between the two legislative regimes that might warrant a different conclusion to that reached by Madgwick J and Spender J.
4. Indeed, the above passage appears to be the full limit of the description of his Honour's analysis in this regard.
5. In Dunstan,[63] Mr Dunstan unsuccessfully sued Mr Higham for misfeasance in public office. In issue was a decision by Mr Higham to charge Mr Dunstan with an offence. A Minute was put in evidence to the effect that Mr Higham had previously decided not to charge Mr Dunstan; it said that he (Mr Higham, as the author of the Minute) did 'not propose to charge Mr Dunstan'. However, Mr Higham gave evidence at trial to the effect that the Minute did not reflect a finally concluded view but, rather, merely recorded his view at the time it was written.
6. On appeal, Mr Dunstan submitted that Mr Higham's evidence was inadmissible because, he said, the question whether a decision had been made must be considered on an objective basis. Accordingly, Mr Higham's evidence as to his subjective state of mind was inadmissible. In that regard, Mr Dunstan relied upon the decision of Higgins J in Semunigus Appeal. The Full Court disagreed that that judgment gave support for the proposition relied upon. It said that while Higgins J held that the question whether there was an overt act giving finality to a decision is to be decided objectively, that does not require an objective test to be applied to the mental element.[64]
7. Amongst other things, the Court later stated that the statutory regime required Mr Higham to choose 'between two options - to charge or not to charge' and that a 'conclusion by the authorised officer upon which option to choose, together with an overt act giving finality to the conclusion, constitutes the decision.'[65] In that regard the decision is consistent with the reasons of all three judges in Semunigus Appeal but does not otherwise assist us one way or another, save to say that that approach has been adopted outside the statutory context of the Migration Act.
8. More recently, in Amir,[66] the Full Federal Court was concerned with a decision by the Director of Professional Services under the Health Insurance Act 1973 (Cth), such decision going to whether a medical practitioner has engaged in 'inappropriate practice' concerning, amongst other things, claims under Medicare.
9. That statutory scheme provided for the Director to make a decision as to whether to conduct a review (review decision) within a month of being asked to do so by the Chief Executive. A positive review decision (i.e. a decision to conduct a review) then triggered a 12 month period within which that review must be completed. If that deadline was not met, the statute deemed a decision that no further action was to be taken.
10. The statutory regime required the review decision to be communicated to the practitioner and the Chief Executive within 7 days but said that failure to do so did not affect the validity of the decision.[67]
11. The Director communicated his review decision (which was to conduct a review) internally several days prior to its external communication. The decision on the review was made within the 12 month period of the external communication but not the internal communication.
12. On appeal, Dr Amir submitted that it was the mental element, rather than the external manifestation thereof, that constituted the 'decision'.
13. The Full Court endorsed the decision of Jagot J at first instance who held, amongst other things that the meaning of 'decide' in the statutory context means 'an externally manifested communication by the Director of an irrevocable commitment by her whether or not to undertake a review.'[68]
14. That could occur, it was held, by communication to the Director's staff or by notice to the practitioner but such communication must evidence that a decision has been made which cannot be revoked.[69]
15. Before turning to the statutory regime in this case, we also note a long established line of authority to the effect that an administrative decision granting or refusing permission, such as a development approval, does not have effect unless and until it is somehow communicated to the applicant.
16. Those authorities were recently reviewed in Richardson[70] The seminal case is Renouf where Street ACJ held:

Before a decision on an application has been communicated to the applicant, and, therefore, before it can have been acted on in any way, I can see no reason why the council should not reconsider any determination it may have come to.[71]

1. Amongst the many cases that have applied that decision is Durrisdeer[72] which concerned the grant of a licence for a liquor store and the facts of which might be considered somewhat analogous to the present.
2. A memorandum internal to the Department, which recommended the grant of the licence, was signed 30 November 1994 by the Executive Director of the relevant division of the Department, who was authorised to make such a decision. His signature appeared next to the word 'Approved'.
3. On the next day, the applicant filed certain documents that were required to be filed before approval could be granted. On 6 December 1994 the Executive Director advised the applicant's solicitors of his 'preliminary approval' following which the solicitor made submissions. Further submissions were also filed by the local council on 23 December 1994 regarding its meeting on 20 December 1994.
4. On 21 December 1994, the Chief Executive 'formally' approved the grant of the license and notified objectors of that decision on 22 December 1994 and the applicant on 23 December 1994.
5. The relevant legislation was amended on 2 December 1994. The appellant/applicant alleged that the Executive Officer had made the decision on 30 November 1994 when he signed the Memorandum and that he, the appellant/applicant, therefore had an accrued right under the previous legislation.
6. The Queensland Court of Appeal disagreed, saying:

[T]here is strong authority in my view for the proposition that until at least notification of a decision is given to an interested party or until some formal public record is effected, no final decision can be said to have been made. Until the decision maker notifies an applicant of the decision made upon his application either personally or by a form of public notification, he has a locus poenitentiae to alter or vary that decision.[73]

Consideration of Cases and the Relevant Statutory Regime

1. In our view, the basic principle described by Mortimer and Griffith JJ in SZRNY - that telling those affected by a decision, and particularly the applicant, of the outcome of the decision-making process is an important element of that process[74] - has much to commend it and we note its consistency with the approach taken in Renouf and subsequent cases, including Durrisdeer.
2. In our view there is much to be said for the proposition that a decision regarding a complaint to a disciplinary body about a professional, and especially one made by the professional's (former) client, ought not to be considered final until the complainant and the practitioner have been advised of it, either by notification or through some public process.
3. Of course, that general proposition must yield to inconsistent statutory provisions and it might be said that the statutory regime under the LP Act, particularly through ss 427 and 432, appears to distinguish between four things: (1) the decision; (2) the reasons for the decision; (3) the record of each; and (4) the notice that must be given of the decision and reasons.
4. But the same argument was made, and dismissed, in Semunigus Appeal, SZQOY and SZRNY.
5. In our view it is not necessary in this case to go so far as to find that a decision under s 415 or s 424 of the LP Act is finally complete only when the complainant and practitioner have been notified of it.
6. Neither is it necessary (or useful) to try to exhaustively describe the circumstances in which such a decision will be complete.
7. Rather, in our view it is sufficient for present purposes to find, and we so find, that a decision under s 424 (and, indeed, s 415) is complete when the LPCC (or its delegate) engages in (physical) conduct that somehow puts the (mental) decision made beyond recall.
8. That is, in our view, the receipt of notice of the decision by an interested party is not necessary for the completion of the decision. Rather, something less than that will be sufficient. But the decision-maker must perform some act which makes it clear that they cannot change their mind before the decision can be said to be complete.
9. That seems to us to be both consistent with ss 427 and 432 and with the authorities referred to above.
10. One way of putting the decision beyond recall would be to make the decision public. Plainly that can occur in a way that is separate and distinct from the giving of notice under s 432.
11. For example, s 434 anticipates the holding of public hearings by the LPCC. At the end of such a hearing the LPCC could orally declare its decision. To do so would, in our view, finalise the decision-making process such that the LPCC could not revisit the decision notwithstanding those subsequent processes - the production of reasons, the recording of the decision and reasons and the giving of notice - remained unperformed.
12. Equally, there is nothing preventing the LPCC from informing interested parties of the decision in other ways ahead of the provision of formal notice under s 432. If that occurs the decision would also, in our view, be put beyond recall.
13. Another way of putting the matter beyond recall, short of giving notice under s 432, would be to record the decision and the associated reasons in accordance with s 427.
14. Such examples confirm, in our view, that the giving of notice is not necessary to put the decision beyond recall and, equally, that the decision can be complete before notice is given under s 432.

1. In our view, the steps taken by the first respondent on 30 June 2022 did not put his decision to dismiss the complaint beyond recall.
2. Indeed, the email to LPCC staff very much contained within it the possibility that the first respondent would engage in further consideration of the matter should the staff's review of his draft letter to the applicant give rise to the need to do so.
3. The initial request in the email asks that the staff do no more than 'proof read the letter'. That suggests that the first respondent sought no more from the staff than that they check the draft letter for minor typographical errors.
4. However, he then asks that 'if all OK [they should] PDF, send etc'.
5. In our view it is implicit in that request that the staff should revert to him with any concerns that they have about the letter.
6. That is, it is implicit in those words that if the staff form the view that the letter is not 'all OK', they should not PDF the letter and send it. So much follows from the inclusion of the conditional term 'if', so that satisfaction of 'all OK' was necessary before they were required to PDF and send the letter.
7. In our view, it makes no sense to condition the request that staff send the letter upon their satisfaction that the letter is 'all OK' if their role was limited to checking for minor typographical errors. The correction of minor typographical errors would not, in our view, require even junior staff to revert to the first respondent; rather they would be expected to make the minor corrections themselves.
8. In our view, the first respondent was inviting more substantive commentary from the staff but did so on the basis that, unless they have such concerns, the draft letter to the applicant could be finalised and sent.
9. But in any event, even if we are wrong in our above analysis of the terms of the email, they clearly evince the first respondent's intention that some further time would pass before the letter would be sent. Within that time, we find (and this is the critical point), the first respondent was entirely within his rights and powers to instruct the staff not to send the email so that he could re-consider the matter.
10. That is, had any of the staff raised a concern with the decision (and we note that Mr Hevron, the author of the Memorandum, was CC'd on the email) or had the first respondent otherwise had cause to reconsider the matter, we find that he could have revisited and remade the decision at any time (at least) prior to the letter notifying the applicant of the decision being sent.
11. As such, in our view, the decision was not made on 30 June 2022. Rather, it was not made until the letters were sent out to the applicant and the second and third respondent on 4 July 2022. It was the sending of those letters that finalised the decision by putting it beyond recall.

1. As the date of the decision is after the date of repeal of the LP Act, for the reasons set out above, the applicant had no right to seek review of the decision under s 435 of the LP Act.
2. For reasons that are also set out above, the applicant also had no right to seek review of the decision under s 319 or otherwise of the Application Act.
3. The Tribunal is therefore without jurisdiction and the application must be dismissed.
4. An order dismissing the application will be made. The parties have leave to seek any ancillary orders if they wish.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[1] The second and third respondent advised that they did not wish to be, and were not, heard in relation to the application.

[2] First Respondents Substituted Section 24 Bundle of Documents, dated 1 November 2022 (RBOD), pages 6 - 49.

[3] Affidavit of Russell John Daily, affirmed 9 September 2022 (Daily Affidavit), paras 5 and 6; Supplementary Affidavit of Russell John Daily, affirmed 15 August 2023 (Supplementary Daily Affidavit), paras 2 and 3.

[4] Daily Affidavit, para 7; Supplementary Daily Affidavit, paras 4 and 5.

[5] Z V Charisteas and Legal Services and Complaints Committee [2023] WASAT 48 (Charisteas).

[6] Complaint of 13 May 2021, para 1; RBOD, page 7.

[7] Complaint of 13 May 2021, paras 7 - 9; RBOD, page 8.

[8] Notwithstanding its repeal, the following description is expressed in the present tense for simplicity's sake.

[12] In contrast with s 415, which provides for summary dismissal without the need for investigation to be completed; see para 14 above.

[16] Daily Affidavit, para 6; Supplementary Daily Affidavit, para 3 and Annexure RJD-1.

[17] Supplementary Daily Affidavit, Annexure RJD-1.

[18] Supplementary Daily Affidavit, para 3 and Annexure RJD-1.

[19] Daily Affidavit, para 5 and Annexure RJD-2.

[20] Daily Affidavit, para 6(b) and Annexure RJD-3.

[21] Daily Affidavit, para 7 and Annexure RJD-4.

[23] Charisteas at [33] and [55] - [69].

[24] Charisteas at [72] - [75].

[26] First Respondent's Supplementary Submissions on Jurisdiction, dated 16 August 2023 (Supplementary Submissions), para [20].

[27] Legal Services and Complaints Committee and Goldsmith [2022] WASAT 43 (S) (Goldsmith) at [5] - [44].

[28] Goldsmith at [5] and [32].

[30] Goldsmith v Legal Services and Complaints Committee [2023] WASCA 136.

[31] Legal Services and Complaints Committee and Bostock [2022] WASAT 100 (Bostock).

[32] Bostock at [7] and [44] - [52].

[33] The LPCC continues by its new name of Legal Services and Complaints Committee - Application Act, s 269.

[34] Charisteas at [25] - [26] and [56] - [57].

[35] Charisteas at [55] - [75].

[36] Charisteas at [31] - [32].

[38] Charisteas at [29] - [31].

[39] Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240; (2000) 96 FCR 533 (Semunigus Appeal).

[40] Semunigus Appeal at [9], also at [51].

[42] Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 (Semunigus) at [19] - [20].

[43] Semunigus at [23] - [26].

[45] Semunigus Appeal at [104].

[46] Semunigus Appeal at [102] - [105].

[48] Semunigus Appeal at [75] - [78].

[49] Supplementary Submissions, para 19.

[50] Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131; (2012) 206 FCR 25 (SZQOY).

[51] SZQOY at [1] (Buchanan J).

[52] SZQOY at [29] (Buchanan J).

[53] SZQOY at [29] (Buchanan J).

[58] Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY [2013] FCAFC 104; (2013) 214 FCR 374 (SZRNY).

[61] Cahill v Victorian Legal Services Commissioner [2017] VSC 177 (Cahill).

[62] Cahill at [37]. Underlining added.

[63] Dunstan v Higham [2016] ACTCA 20 (Dunstan).

[65] Dunstan at [78]. Emphasis added.

[66] Amir v Director of Professional Services Review [2022] FCAFC 44; (2022) 290 FCR 355 (Amir).

[70] Richardson and City of Swan [2022] WASAT 17 (Richardson).

[71] Ex parte Renouf [1924] NSWStRp 47; (1924) 24 SR (NSW) 463 (Renouf) at 466.

[72] Durrisdeer Pty Ltd v Nordale Management Pty Ltd [1996] QCA 558 (Durrisdeer).

[74] The principle stated by Mortimer and Griffith JJ concerned the decision-making process of a review body. We see no reason why a primary decision should be any different.