APPELLANT APPEALS DECISION OF THE TRIBUNAL DISMISSING HIS CLAIM FOR LACK OF SUBSTANCE
B v A Legal Practitioner [2020] TASSC 50 (27 October 2020)
This case is about the appellant appealing the decision of the board and the tribunal for dismissing his complaint in relation to the respondent’s conduct for the latter’s failure to include the appellant to in the meeting between the Australian Childhood Foundation ('ACF') and representatives of the Secretary.
Facts:
On 7 May 2012, a magistrate made a care and protection order under the Children Young Persons and Their Families Act 1997 in respect of the appellant's child. The order granted guardianship of the child to the Secretary, and made various other orders, some of which provided for contact between the appellant and the child, and for the appellant to be consulted and notified in respect of various aspects of the child's life.
The appellant made a complaint to the Legal Profession Board (the Board) in relation to the respondent's conduct. The appellant alleged that despite an agreement that he would be included in the meeting, a meeting between the ACF and representatives of the Secretary had taken place without him. Appellant alleged that the respondent "indulges herself and the Department with complete obfuscation of my matter in which the best interests of the children are running a sorry second to covering up Departmental crimes". It was asserted that the respondent was "obligated as model litigant to ensure compliance of orders".
The Board dismissed the complaint pursuant to s.433(1)(a) of the Legal Profession Act 2007, on the basis that it was lacking in substance. It found that it had been agreed that the appellant would be involved in the meeting, but that the relevant child protection worker had met with the ACF without the appellant. It was noted that in subsequent correspondence with the appellant's lawyer, the respondent had explained that failure to notify the appellant of the meeting occurred "due to time constraints", and provided reassurance that it was her client's intention that the appellant would still be involved in the ACF process. The Board concluded that the meeting with the ACF in the absence of the appellant had not breached a condition of the court order, and that, in any event, there was no suggestion of any breach of the orders by the respondent. The Board determined that the complaint was lacking in substance "on the information provided by the complainant".
The appellant applied pursuant to s.458 of the Act to have the matter determined by the Disciplinary Tribunal (the Tribunal). The Tribunal dismissed the complaint. The tribunal concluded that there was no evidence that the respondent "was in any way responsible for the fact that the ACF meeting took place without the applicant; that is, that it was a decision that she made or in which she participated, to leave the applicant out of the consultative process at that stage"
The appellant has now appealed to this Court from the Tribunal's decision.
Issue: Is the Tribunal correct in dismissing the appellant’s appeal?
Law:
- S433 (1)- The Board must dismiss a complaint if: (a) The complaint is in the opinion of the Board vexatious, misconceived, frivolous or lacking in substance.
Analysis:
There is no merit in the assertion which underpins the grounds of appeal, that is, that the Board did not seek clarification of the appellant's claims and, accordingly, he has been deprived of an opportunity to present relevant information. As already noted, it is apparent from the record that the Board did provide him with an opportunity to present relevant information and evidence. Further, and in any event, there was no suggestion in the hearing before the court that the appellant possessed any further evidence or information other than that contained in the statutory declaration. There is no material disclosed in that declaration which is relevant to the conduct of the respondent. The documents annexed to it are a collection of emails and other forms of correspondence between representatives of the Secretary, the appellant and the appellant's lawyer, concerning the ongoing implementation of the orders. The court could not find even a single reference to the respondent, and there is nothing that would justify an inference concerning her conduct. Accordingly, the provision of that information to the Board would not have made any difference to its decision to dismiss the complaint.
Conclusion: Both the Board and the Tribunal correctly decided that the complaint is lacking in substance. The appeal is without merit and will be dismissed.
