Login
Perth barristers, principal go up against ‘misconceived’ accusations of deception
Two barristers and a principal have faced “misconceived and unreasonable” allegations they took on a case without any prospects of success and deceived a man to recover legal fees.
Naomi Neilson
Perth-based barristers Darren Zusman and Paul Mendelow, along with principal Mark MacLennan, have been accused of misconduct during the “brief period” they represented a woman in mid-2020.
The complaints were dismissed by both the Law Complaints Officer and the Western Australian State Administrative Tribunal (WASAT) on appeal as “misconceived and unreasonable”.
The applicant, Scott Thillagaratnam, is appealing WASAT’s decision.
As part of that process, Thillagaratnam turned to the Court of Appeal to recover documents he claims have been kept from him.
The woman, Thillagaratnam’s daughter, first made the complaint to the state’s Legal Profession Complaints Committee when the retainer came to an end around mid-August, but this was eventually withdrawn and replaced with Thillagaratnam’s complaint.
Thillagaratnam’s alleged Zusman and Mendelow knew his daughter had no arguable case, and Zusman and MacLennan entered into a costs agreement knowing there was no prospects of success.
Zusman was also accused of entering into a costs agreement with Mendelow without the daughter’s permission and raising Thillagaratnam liability as guarantor from $5,000 to $80,000.
In another ground, Thillagaratnam accused Zusman and Mendelow of coming to an “express agreement” to deceive him by recovering Mendelow’s fees under a “separate and different costs agreement”.
Thillagaratnam’s appeal has 29 grounds, but the Supreme Court found this was “something of an understatement” because many of those grounds contained additional allegations of error.
Broadly speaking, the grounds alleged WASAT erred by considering Thillagaratnam lacked grounds to make a complaint, taking into account irrelevant considerations, failing to account for relevant considerations, and by making “wrong findings”.
Thillagaratnam also claimed he was denied procedural fairness because WASAT did not require the Law Complaints Office to file a statement of issues, and because the barristers and principal were only required to file documents they proposed to rely on “rather than all documents relevant to the issues in the proceeding”.
In the current application relating to the recovery of documents, Thillagaratnam seeks nine documents from Zusman and MacLennan and 10 documents from Mendelow relating to his daughter’s matter.
Justices Robert Mitchell and John Vaughan found his affidavit to be “tendentious” in that it assumed the existence of documents when some could not be assumed, such as file notes.
Thillagaratnam also used “pejorative language” that the three legal practitioners failed to disclose or produce various documents in circumstances where there was no obligation to do so.
The affidavit made “no attempt” to demonstrate reasonable grounds for being “fairly certain” there are documents to be disclosed.
Justices Mitchell and Vaughan said they were not satisfied Thillagaratnam has made out a case for the discovery.
“An order for production of documents in an appeal is an exceptional order,” they said in the written judgment.
“In the circumstances of this appeal, before any wide-ranging order for production of documents of the kind sought, the appellant should first be required to establish there is a proper case for leave to appeal.”
In addition to dismissing the application for documents, Justices Mitchell and Vaughan has directed the Court of Appeal registrar to issue a notice to determine whether the court should revoke an order referring the question of leave to the appeal hearing.
The registrar was also asked to consider and determine the question of leave to appeal.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
