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Court tosses appeal in WA solicitor, barrister misconduct case
A West Australian man who tried and failed on a number of occasions to have a barrister and solicitor disciplined over alleged misconduct in the state’s Supreme Court has had his appeal shot down.
Naomi Neilson
James McGeough appeared in the Supreme Court of Western Australia no less than four times in the last 12 months in pursuit of disciplinary action against solicitor David Kirchner and barrister Peter McGowan, who each represented his brother in family law matters.
Despite this complaint being dismissed by the Law Complaints Officer for being “misconducted and lacking in substance” – which was supported by the State Administrative Tribunal on appeal – McGeough has relentlessly pursued his case against them.
In the latest judgment, handed down earlier this week, Justices John Vaughan and Sam Vandongen revoked an earlier order of the court to refer the question of leave to appeal to an appeal hearing. They also refused leave to appeal, and therefore dismissed the appeal.
While Justices Vaughan and Vandongen threw out many grounds of appeal, they did delve into three grounds that, when viewed together, set out alleged inconsistencies in the evidence that was available before the State Administrative Tribunal and the evidence that had been adduced in the family law trial before the Supreme Court.
McGeough had alleged the inconsistencies were such “that it should be inferred [Kirchner and McGowan] knowingly or recklessly advanced a false case” in the Supreme Court matter.
Because the tribunal proceeded on the “incorrect premise” this material was available at all times, McGeough alleged it did not review whether the material might arguably have supported the inference of misconduct against the legal practitioners.
Justices Vaughan and Vandongen found it was arguable the tribunal relied on other court’s review of the evidence rather than conduct its own review of the materials, and they found there was a “real or significant argument to be put on the question of law”.
However, they said McGeough had to demonstrate that granting leave to appeal would be in the interests of justice, but he could not.
“The refusal of leave to appeal will not give rise to any substantial injustice even assuming the tribunal’s decision to be legally incorrect.
“Nor, on the facts, are we persuaded that there is some other justification for leave to appeal in the interests of justice even though the appellant has identified arguable legal error in the tribunal’s reasoning process,” Justices Vaughan and Vandongen said.
The case is McGeough v Law Complaints Officer as the Delegate of the Profession Complaints Committee [No 3] [2024] WASCA 127 (21 October 2024).
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
