Lloyd Rayney has successfully shown that attempts to cancel his practising certificate in WA may have resulted in an abuse of process.
Western Australia’s State Administrative Tribunal has made an order dismissing a second bid to cancel barrister Lloyd Rayney’s practising certificate.
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Mr Rayney’s career in law had been challenged by the WA Legal Profession Complaints Committee (LPCC) and Legal Practice Board (board) respectively in two separate applications to cancel his practising certificate, and which were both contested by the barrister in 2015.
Ms Rayney’s buried body had been discovered in Kings Park in 2007, with the respected barrister later targeted as the prime suspect for her death.
Mr Rayney is currently pursuing a multimillion-dollar defamation case against the state for police comments suggesting he was the prime suspect for the crime. Those proceedings are listed for trial later this year.
Last month, the tribunal found that two separate proceedings to have Mr Rayney’s practising certificate cancelled relied on “substantially identical” facts. The tribunal ruled that this meant the LPCC application amounted to an abuse of process as per section 47(1)(c) of the State Administrative Tribunal Act 2004.
In determining whether there had been an abuse of process, the tribunal considered the substance of the matter, not form of the action taken against Mr Rayney.
Citing authorities about the nature of this type of determination, it added that the party alleging an abuse of process shouldered a “heavy” onus to satisfy the court that an abuse of process existed. Furthermore, the tribunal said that a finding as to motive was unnecessary for the purpose of determining abuse of process.
“Abuse of process is inherently broader and more flexible than estoppel and is capable of application in any circumstances in which the use of a court’s or tribunal’s procedures would be unjustifiable and oppressive to a party or would bring the administration of justice into disrepute.”
“It is clear […] that a failure to have proceedings heard in tandem may constitute an abuse of process,” the decision read.
The tribunal also dismissed submissions made by the LPCC claiming that its own investigative powers, which the board lacked, was “of significance” in its choice to take steps to cancel Mr Rayney’s pracitising certificate.
However, the tribunal did acknowledge the close working relationship between the two groups, and said there was “nothing inappropriate” with the sharing of information about Mr Rayney's matter between the LPCC and the board.
“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 LPCC’s statutory functions as parts of the same regulatory framework,” the tribunal said.
In mid-2015 Mr Rayney gave notice to the LPCC of his intention to resume practice. Several written exchanges then passed between the barrister and LPCC.
The LPCC then requested that Mr Rayney provide copies of his trial transcript, copies of the indictment, prosecution brief, witness statements and exhibits concerning telecommunications charges, which were in part related to the investigations surrounding death of Ms Rayney.
By early June, the LPCC renewed its request for materials related to Mr Rayney’s telecommunications charges trial and, on the same day, also issued a notice inviting the barrister to make written submissions with respect to the proposed cancellation of his practising certificate.
On 16 July, My Rayney provided the LPCC with most of the documents requested. The following day he received a notification that the LPCC had cancelled his practising certificate.
In its order dismissing the LPCC’s decision to cancel Mr Rayney’s pracising certificate, the tribunal underscored the importance of allegations being dealt with as a whole.
“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,” the tribunal said.
“The LPCC […] concedes that it is possible that the referral and the review application might have been heard together. The fact that the tribunal in its review jurisdiction and in its original jurisdiction might have been drawing different legal conclusions about the same conduct is not excuse for the failure to have matters heard together.
“The board proceedings and the LPCC proceedings should have been heard together, given the closeness of the factual allegations made against Mr Rayney in the s 421 Notice and the s 56(2) Notice,” the decision read.