Metaxas v Legal Profession Complaints Committee

[2019] WASCA 124

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   METAXAS -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2019] WASCA 124

CORAM:   QUINLAN CJ

HEARD:   12 AUGUST 2019

DELIVERED          :   12 AUGUST 2019

PUBLISHED           :   22 AUGUST 2019

FILE NO/S:   CACV 84 of 2018

BETWEEN:   ARTHUR METAXAS

Appellant

AND

LEGAL PROFESSION COMPLAINTS COMMITTEE

Respondent

ON APPEAL FROM:

Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL

Coram:   JUSTICE J C CURTHOYS (PRESIDENT)

MS C WALLACE, SENIOR MEMBER

MR P DE VILLIERS, MEMBER

Citation: LEGAL PROFESSION COMPLAINTS COMMITTEE and METAXAS [2018] WASAT 28

File Number             :   VR 124 of 2017

Catchwords:

Application for recusal - Reasonable apprehension of bias - Having acted for institutional client as barrister

Legislation:

Nil

Result:

Application refused

Category:    B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Ms P E Cahill SC

Solicitors:

Appellant	:	Metaxas Legal
Respondent	:	Legal Profession Complaints Committee

Case(s) referred to in decision(s):

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Re Polites;ex parte Hoyts Corporation Pty Ltd [1991) 173 CLR 78

QUINLAN CJ:

(This judgment was delivered extemporaneously on 12 August 2019 and has been edited from the transcript.)

1. This is an application by the appellant brought in the course of this appeal from a decision of the State Administrative Tribunal (the Tribunal) in relation to disciplinary proceedings brought in the Tribunal by the Legal Profession Complaints Committee (the Committee). 

2. At the commencement of the hearing today, the appellant made an oral application that I should recuse myself from further hearing of the appeal.  The basis for the application is that, when I was a barrister in private practice, I had accepted briefs from time to time to appear for the Committee, both in the Tribunal and in the Court of Appeal.  The appellant made reference to a number of decisions of the Court of Appeal and the Tribunal in relation to which I had been briefed as counsel. 

3. The application is not made on the basis that I had any involvement in any matter involving the appellant.  It is rather based entirely upon the fact that I previously had a relationship of barrister/client with the Committee, by reason of accepting instructions from it. 

4. The test to be applied in determining whether I should recuse myself by reason of reasonable apprehension of bias is well established.  A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[1] 

   [1] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 [6] (Gleeson CJ, McHugh, Gummow & Hayne JJ).

5. The High Court in Re Polites; ex parte Hoyts Corporation Pty Ltd, which concerned an application for the Deputy President of the Australian Industrial Relations Commission to recuse himself, set out the following general principles in relation to a judge sitting on a case involving a former client:[2]

   A prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of the tribunal (or of a court, for that matter), from sitting in proceedings before that tribunal (or court) to which the former client is a party.  Of course, if the correctness or appropriateness of advice given to the client is a live issue for determination by the tribunal (or the court), the erstwhile legal adviser should not sit.  A fortiori, if the advice has gone beyond the exposition of the law and advises the adoption of a course of conduct to advance the client's interests, the erstwhile legal adviser should not sit in a proceeding in which it is necessary to decide whether the course of conduct taken by the client was legally effective or was wise, reasonable or appropriate.  If the erstwhile legal adviser were to sit in a proceeding in which the quality of his or her advice is an issue, there would be reasonable grounds for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the issue.  Much depends on the nature of his or her relationship with the client, the ambit of the advice given and the issues falling for determination. 

   [2] Re Polites;  ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78, 87 - 88 (Brennan, Gaudron & McHugh JJ).

6. None of the exceptions to the general principle (expressed in the first sentence of this passage) apply in the present case.  Applying the test for reasonable apprehension of bias generally, in my view, there is nothing in the fact that I previously acted as counsel for the Committee (in matters unrelated to the appellant) to suggest that a fair-minded lay observer might reasonably apprehend that I would not bring an impartial mind to the resolution of this matter. 

7. A reasonable fair-minded lay observer would be aware of the distinction between counsel and counsel's client, particularly in the case of an institutional client such as the Committee.  There could be, in my assessment, no reasonable apprehension that I might not bring an impartial mind to the resolution of these disputes which do not involve any matter connected with any issue in relation to which I have in the past previously advised the Committee. 

8. The appellant referred to the fact that during the course of my having acted as counsel in those instructions I will have had contact with those instructing from the Committee.  That would be the case in relation to any matter involving a previous client.  I have no relationship with any officer of the Committee that an observer might apprehend might affect my impartiality and no such relationship that has been identified by the appellant. 

9. For those reasons I would refuse the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

BC
Principal Associate to the Honourable Chief Justice Quinlan

22 AUGUST 2019