DOBSON and LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA - [2022] WASAT 80

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT:   LEGAL PROFESSION UNIFORM LAW (WA)
CITATION:   DOBSON and LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA [2022] WASAT 80
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
HEARD:   26 AUGUST 2022
DELIVERED          :   6 SEPTEMBER 2022
FILE NO/S:   VR 71 of 2022
BETWEEN:   TED CHARLES DOBSON
Applicant
AND
LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA
Respondent

Catchwords:

Vocational regulation - Legal practitioner - Cancellation of practising certificate - Where practitioner sought stay of cancellation decision - Whether circumstances are such that it is desirable to grant stay - Transitional provisions - Tribunal's power to stay a decision

Legislation:

Legal Profession Act 2008 (WA), s 55, s 56(2)
Legal Profession Uniform Law (WA), s 3, s 77, s 82(1)(a), s 82(1)(d), s 82(2), s 83, s 84, s 100, s 100(1)(b), s 100(2), s 100(4)
Legal Profession Uniform Law Application Act 2014 (Vic), Sch 1
Legal Profession Uniform Law Application Act 2022 (WA), Pt 16
State Administrative Tribunal Act 2004 (WA), s 25, s 25(2), s 25(4), s 25(4)(a), s 25(4)(c), s 61(2), s 62

Result:

Application for stay of the respondent's decision to cancel applicant's practising certificate granted.

Category: B

Representation:

Counsel:

Applicant	:	EM Heenan
Respondent	:	GR Donaldson SC

Solicitors:

Applicant	:	Terry Dobson Legal
Respondent	:	In Person

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

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1
Bernadt v Medical Board of Australia [2013] WASCA 259
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70; [2005] FCAFC 142
Rao and Medical Board of Australia [2022] WASAT 55
Soutorine and the Medical Board of Western Australia [2020] WASAT 5
WD v Medical Board of Australia [2013] QCAT 614
Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279

REASONS FOR DECISION OF THE TRIBUNAL:

Overview

On 11 August 2022, the Legal Practice Board of Western Australia (respondent) cancelled the practising certificate of Mr Ted Charles Dobson (applicant).
That decision was made pursuant to s 84 of the Legal Profession Uniform Law (WA) (Uniform Law).
The Uniform Law is contained in Schedule 1 of the Legal Profession Uniform Law Application Act 2014 (Vic) and is given effect in this State by the Legal Profession Uniform Law Application Act 2022 (WA) (Application Act). The Uniform Law took effect in this State on 1 July 2022.
The respondent is empowered to cancel a practising certificate pursuant to s 84 of the Uniform Law[1] upon the expiry of the relevant time period following the giving of a notice under s 83 advising of the respondent's intention to take such action. The respondent gave notice under s 83 to the applicant on 19 July 2022.
[1] All subsequent section numbers refer to the Uniform Law unless otherwise stated.
Both the s 83 notice and the decision under s 84 refer to and rely upon s 82(1)(a) and (d), which provide the respondent with a power to cancel a practising certificate on the grounds, respectively:
a)that the relevant practitioner has contravened a condition of the certificate; and
b)that the respondent 'reasonably believes that the [practitioner] is unable to fulfil the inherent requirements of an Australian legal practitioner'.
On 12 August 2022, the applicant applied to the Tribunal pursuant to s 100(1)(b) and s 100(2) for review of the merits of the respondent's decision to cancel his practising certificate.
Section 100(4) provides, effectively, that the lodging of an application for review of a decision under s 100 does not stay the effect of the decision to cancel unless such a stay is ordered by the Tribunal.
On 16 August 2022, by way of an interim application, the applicant sought a stay of the effect of the decision to cancel his practising certificate. He also sought orders:
a)pursuant to s 61(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) for a private hearing to the extent, if any, that material contained in certain, identified annexures to the affidavit of Ted Charles Dobson sworn 16 August 2022[2] (Dobson Affidavit) would be read out or otherwise published (identified material); and
b)pursuant to s 62 of the SAT Act for prohibition of publication of the identified material.
[2] Both Mr Dobson's affidavit and that of John-Paul Anthony Colella sworn 25 August 2022 were read at the commencement of the hearing on 26 August 2022.
It has not been necessary for me to determine the application under s 61(2) of the SAT Act. Mr Donaldson SC, who appeared for the respondent, indicated he did not intend to read out loud any of the identified material during the hearing and I indicated that I did not think it necessary for me to do so either. On that basis the application for a stay was heard entirely in public.
Equally, I indicated at the hearing that I did not consider it necessary to refer in these reasons to any of the identified material except to the extent that it was already in the public domain. On that basis, I understood the applicant to not press his application under s 62 of the SAT Act and I have not considered the matter any further.
For the reasons that follow, I have determined that it is appropriate to grant the application for a stay of the effect of the respondent's decision to cancel the applicant's practising certificate until further order of the Tribunal.

Factual background

The applicant is 28 years old. He graduated from law school at the end of 2017.
Since then, he has worked at what was his father's incorporated legal practice, Terry Dobson Legal (TDL).
Until he died unexpectedly in May 2021, his father was the sole director and legal practice director of TDL and the applicant was the sole employed practitioner.
The applicant deposes that, upon his father's death, he was not eligible to become the legal practice director of TDL,[3] although the reason for such ineligibility is not explained. In any event Ms Paola Lovi, whom the applicant describes as a close friend of his father's, took on the role at that time. In her email to the respondent of 1 July 2021 Ms Lovi advises that she came out of semi-retirement to do so and, at least at that stage, was not remunerated for it.
[3] Dobson Affidavit, para 17.
The applicant's role at TDL at all material times has been, therefore, and continues to be, that of an employed solicitor.
On 7 June 2021, the Australian Federal Police (AFP) raided the offices of TDL and the home of the applicant.[4]
[4] Dobson Affidavit, para 19.
Shortly thereafter, the applicant was arrested and charged with very serious Commonwealth criminal offences.[5] Specifically, he was charged with:
a)one count of conspiring to obstruct the course of justice; and
b)one count of attempting to obstruct the course of justice.
[5] Dobson Affidavit, para 2.
In each case, the alleged charges concerned activities in April 2021.
On 12 July 2021, the respondent gave the applicant a notice under s 56(2) of the Legal Profession Act 2008 (WA) (2008 Act) – the previous legislation to the Uniform Law, which was repealed by the Application Act on 1 July 2022 – stating that it believed grounds existed to cancel his practising certificate because he was not a fit and proper person to hold a local practising certificate, and to protect the public interest.[6] I note that although the notice gave the protection of the public interest as a ground, s 55 of the 2008 Act did not identify that as a ground that allowed the respondent to take that action.
[6] Dobson Affidavit, para 32.
I pause here to note that that ground – that a practitioner is not a fit and proper person to hold a local practising certificate – is not a ground for the cancellation of a practising certificate under the Uniform Law.
Rather, the Uniform Law provides for cancellation on a ground that is expressed in different terms which I have set out above in [5(b)], that the respondent 'reasonably believes' that the practitioner 'is unable to fulfil the inherent requirements of an Australian legal practitioner'.[7]
[7] The applicant submitted that there was a material difference between the two sets. Specifically, it was said that the question whether the practitioner is able to fulfil the inherent requirements of an Australian legal practitioner ought to be seen as a subset of the question whether the practitioner is a fit and proper person. As I will explain below, I do not need to determine whether that is correct or not, at least at this stage of the proceeding.
Returning to the narrative, on 10 September 2021, after receiving submissions made on the applicant's behalf, the respondent decided not to cancel his practising certificate but, instead, decided to amend it to impose conditions requiring that:[8]
a)he practise only as an employee and that he be supervised by a practitioner with certain characteristics;[9] and
b)he only 'meet with a client or prospective client' of TDL at:
i)TDL's offices;
ii)a prison where the client is incarcerated; or
iii)a court where he is appearing for the client.
[8] Dobson Affidavit, para 37.
[9] The required characteristics changed over time. They are not relevant to the determination of this application and I will not describe the different iterations or the communications between the parties that lead to them.
The requirement that the applicant practise only as an employed solicitor was satisfied by his status as an employee of TDL. However, it took some time to arrange the appointment of a supervisor for the applicant.
Mr John Hammond commenced supervising the applicant on 9 December 2021.
In or about January 2022, Mr Dobson was arrested and subsequently charged by the Western Australian Police with a single, serious charge (WA charge) alleged to have occurred in December 2019. The WA charge was promptly reported, initially via Mr Hammond, and then by the applicant in writing, to the respondent.[10]
[10] Dobson Affidavit, paras 53 – 54.
On 21 January 2022, the respondent gave notice to the applicant that it proposed to cancel his practising certificate on grounds which included that he was not a fit and proper person to hold a local practising certificate.[11]
[11] Dobson Affidavit, para 57.
On 16 February 2022, Mr Hammond provided his first report to the respondent.[12]
[12] Dobson Affidavit, para 61.
On 18 February 2022, the respondent advised Ms Lovi that it had resolved to take no further action against the applicant, despite its notice of 21 January 2022.[13]
[13] Dobson Affidavit, para 62.
In or about April 2022 the applicant breached the second of the two conditions imposed on his practising certificate on 10 September 2021.
The applicant, in his dealings with Mr Hammond and the respondent, admitted to three such breaches at different times throughout April,[14] although Mr Heenan, who appeared for the applicant, submitted that there was some doubt as to whether the third breach was, in fact, contrary to the condition.
[14] Dobson Affidavit, para 108.
The first two breaches involve the meeting with, and giving of advice to, a client at Elizabeth Quay which is, plainly, contrary to the requirement that he only meet with clients at TDL's offices the relevant court or the relevant prison.
The third alleged breach occurred when the applicant gave what he described as, in effect, a lecture to a group of people at which one attendee was a client and another was soon to be a client.
The third breach is clearly made out in that the condition prohibits the applicant from meeting with a client other than at the specified locations. The submission is to the effect that no 'legal advice was given'. At one level that misses the point, but it might be said to support the submission that the breach is at the lower end of seriousness.
It is to his credit that the applicant brought those breaches to the attention of the respondent, even though he failed to do so prior to the provision of Mr Hammond's report to the Board on 2 May 2022.
Indeed, the applicant did not advise Mr Hammond of the three breaches until 27 May 2022.
The applicant's initial explanation for that delay was that he was suffering as a result of grief and stress such that he was operating in a 'mental fog' which did not lift until late May after which he, promptly, advised first Ms Lovi and, then, Mr Hammond. The applicant then, promptly and comprehensively, complied with Mr Hammond's request to provide a full written description and explanation for the breaches which were passed on to the respondent by Mr Hammond on 30 May 2022, together with a further report from Mr Hammond. The initial reasons given for the lifting of his 'mental fog' was the professional help he obtained from late March 2022.[15]
[15] Dobson Affidavit, paras 62-92.
On 30 August 2022, the Tribunal received a further, draft, affidavit from the applicant which sought to clarify the dates on which he obtained that help.
Specifically, that further draft affidavit states that he was prescribed certain medication from mid-May (and not late March) and that as a result, he thinks it likely that the 'mental fog' lifted in mid to late June 2022.
That timeline does not correspond with his disclosure of the three breaches to Mr Hammond on 27 May 2022. Such disclosure was previously explained by the lifting of the 'mental fog' in late May being four to five weeks after commencing medication in late March, which was the subject of his initial affidavit.
While the precise chronology is, therefore, unclear, the evidence from the applicant is that the three breaches occurred during a period of impaired mental function due to grief and stress, which resolved after a period at which point he advised Mr Hammond.
On 9 June 2022, the applicant was charged by the AFP with two further serious offences both of which concern events that occurred contemporaneously with the matters the subject of the original Commonwealth charges.[16]
[16] Dobson Affidavit, para 14.
The applicant advised the respondent of those additional charges on 14 June 2022.[17]
[17] Dobson Affidavit, para 115.
On the same day, and (apparently) just before it received that notification, the respondent notified the applicant that it had resolved to issue to him a notice under s 56(2) of the 2008 Act on the grounds that he was not a fit and proper person to hold a local practising certificate and that he had contravened a condition of his practising certificate.[18]
[18] Dobson Affidavit, para 116.
Having received the notice of the additional charges, the respondent sought submissions from the applicant as to why, in his view, he remained a fit and proper person to hold a practising certificate.[19]
[19] Dobson Affidavit, para 116.
As indicated above, the Uniform Law took effect on 1 July 2022 and on that day the 2008 Act was repealed.
On 19 July 2022, the respondent issued a notice under s 83 that it proposed to cancel the applicant's practising certificate on the two grounds the subject of the application – that he had contravened a condition of his practising certificate and that the respondent reasonably believed he was unable to fulfil the inherent requirements of a legal practitioner.[20]
[20] Dobson Affidavit, para 121.
On 11 August 2022, the respondent resolved to cancel the applicant's certificate under those two grounds.

Transitional provisions

As noted above, on 1 July 2022 the Uniform Law took effect and the 2008 Act was repealed.
As should also be clear from above chronology:
a)each of the matters which form the basis for the respondent's decision to cancel the applicant's practising certificate occurred prior to 1 July 2022; and
b)the respondent's decision to cancel the applicant's practising certificate occurred after 1 July 2022.
The respondent's Outline of Submissions in Opposition to Interim Application (Respondent's Outline) asserted that '[n]o real issue as to the transitional provisions of the Uniform Law arise'.[21]
[21] Respondent's Outline, para 4.
At the hearing, Mr Heenan, who appeared for the applicant, did not disagree with that position.[22]
[22] ts 4, 26 August 2022.
I agree. Part 16 of the Application Act makes provision for the transition between the two Acts but without addressing the situation where a decision is made in circumstances such as these.
In my view that is because there is, in fact, no transition. Put another way, it seems perfectly sensible that the respondent may have regard to matters that precede 1 July 2022 in making a decision after that date. The alternative would create an untenable situation. For example, it cannot have been intended that the respondent was unable to take action after 1 July 2022 under the Uniform Act in relation to conduct that occurred prior to, but which did not come to its attention until after, that date.
In the absence of anything immediately obvious to the contrary I will proceed on that basis.

The power to stay a decision and the relevant principles

Section 25(2) of the SAT Act provides the Tribunal with the power to 'make an order staying the operation of a decision that is the subject of a proceeding for review' but s 25(4) of the same Act provides that that power may only be exercised if the Tribunal:
… considers that it is desirable to do so after taking into account —
(a) the interests of any persons whose interests may be affected by the order; and
(b)any submission made by or on behalf of the decision-maker; and
(c)the public interest.
In Soutorine,[23] Tottle J, sitting as Supplementary President of the Tribunal, was concerned with a decision by the Medical Board of Australia to take 'immediate action' to suspend Dr Soutorine's registration as a medical practitioner. His Honour enunciated the following principles,[24] which have since been repeated and applied:
[23] Soutorine and the Medical Board of Western Australia [2020] WASAT 5 (Soutorine).
[24] Soutorine, [24]-[28].
a)s 25 of the SAT Act provides the Tribunal with a wide discretion to grant a stay that must be exercised judicially;
b)any analysis of that discretion must begin with the terms of the statute, particularly s 25(4) of the SAT Act;
c)care must be taken in looking for guidance to:
i)jurisdictions with a different statutory basis for the power to grant a stay; and
ii)decisions concerned with the exercise of discretion to grant a stay in curial proceedings. In particular, where a stay application is brought within an application to review an administrative decision, a regulatory decisionmaking authority is not to be equated with the 'successful party' following a contest and determination;
d)s 25(4) of the SAT Act does not exhaustively list the matters relevant to the Tribunal's consideration; and
e)neither party bears an onus of persuading the Tribunal to grant a stay or not.
As noted above, one of the matters for which regard must be had in an application under s 25(4) of the SAT Act is the public interest. The 'public interest' in a particular case must be understood within its statutory context.[25] That legislative context includes the objectives set out in s 3 of the Uniform Law which provides as follows:
The objectives of this Law are to promote the administration of justice and an efficient and effective Australian legal profession, by —
…
(b)ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services; and
(c)enhancing the protection of clients of law practices and the protection of the public generally; and
…
(e)promoting regulation of the legal profession that is efficient, effective, targeted and proportionate[.]
[25] McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70; [2005] FCAFC 142, [9]-[11] (per Tamberlin J).

Those objectives, in my view, support the proposition that the public interest in this context includes the following:
a)the maintenance of a regulatory system which deals with practitioners about whom concerns are raised in a fair and proportionate manner;
b)the ability of legal practitioners being able to practise unless there are grounds that go to their ability to practise competently and to a high ethical standard;
c)accordingly, that disciplinary and associated steps (such as the cancellation of a practising certificate) should only be taken when it is necessary to do so to protect the public and/or maintain relevant standards; and
d)that any disciplinary or associated steps ought to be proportionate to the risk which they seek to address.
In addition to the above matters, in Soutorine and those cases that followed it, the matters that were considered in an application for a stay also included:
a)the legislative context, which in Soutorine (as in the current case – see above), had as its express purpose the protection of the public;[26]
b)whether the applicant had raised a 'serious question' as to the reasonableness of the decision the subject of review; and[27]
c)the impact on the applicant if a stay is refused and, vice versa, the impact on the protection of the public if the stay is granted. In this regard, Tottle J raised the question whether a refusal of the stay would render the substantive review application nugatory.[28]
[26] Soutorine, [57].
[27] Soutorine, [60]-[61].
[28] Soutorine, [64].
Neither party brought my attention to any decision in this State which has arisen under the legal regulatory regime that calls for consideration of the above principles. My own research has confirmed that position. But I see no reason why they do not apply to the current application.

The parties' submissions and their consideration

At this stage I am not required to, and indeed it would be inappropriate to, reach a concluded view on any factual matters. Indeed, none of what follows ought to be construed as findings of fact. I adopt what was said by Tottle J in Soutorine in this respect.[29]

Arguable case to be tried

[29] Soutorine, [58].

Both parties made submissions as to the relative strengths of their case as to the ultimate decision (that is, the review of the respondent's decision to cancel the practising certificate).
Both parties made submissions to the effect that the strength of the applicant's case is relevant to both s 25(4)(a) and (c) of the SAT Act. I agree and note that in Soutorine, Tottle J put it in terms of whether the applicant's case raised a serious question to be tried.[30]
[30] Soutorine, [60]–[61].
The applicant's submissions in this regard were that:
a)the breach of conditions, which he admits, were of a minor nature; and
b)there is no jurisdiction under s 82(1)(d).
It is convenient to take them out of order. I will address the jurisdiction submissions first. The argument as to jurisdiction was in two main parts; firstly, on a question of statutory construction, and secondly, based on precedent.

Jurisdiction – statutory construction

In relation to the ground based on s 82(1)(d) the applicant submits that there is no power to cancel a practising certificate where the practitioner has been charged with, and not convicted of, an offence.[31]
[31] Applicant's Submissions in support of Interim Application (Applicant's Submissions), para 9.
More fulsomely, the applicant submits that the power to vary, suspend or to cancel a practicing certificate under s 82(1)(d) must be read in the context of s 82(2) which provides the power to vary or suspend (but not cancel) a practising certificate if the practitioner has been charged with a serious offence but the charge has not been determined. The applicant submits that the general power in s 82(1)(d) ought to be read so as not to include the specific power of s 82(2).[32]
[32] Applicant's Submissions, para 14.
The jurisdictional question raises an interesting question of statutory construction that involves the application of the principle in Anthony Hordern,[33] which provides that the inclusion in legislation of a specific power requires the reading down of a general power included in the same legislation.
[33] Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1, 7 (Gavan Duffy CJ and Dixon J).
In answer to this point Mr Donaldson submitted that the applicant's submission was 'plainly … incorrect' and 'plainly not open'.[34] He gave the present sets of facts as an example where a decision is made to cancel under both s 82(1)(a) and s 82(1)(d) as demonstrating that a power to cancel must exist under s 82(1)(d).
[34] ts 33, 26 August 2022.
It is, not the time to get deeply involved in the question of the correct statutory construction.
Suffice to say at this stage that, despite Mr Donaldson's submission, in my view the question of the power to cancel under s 82(1)(d) raises an interesting and important question of statutory construction that cannot easily be dismissed. The applicant's preferred construction is not in my view 'plainly incorrect' or 'not open'.
Moreover, if the applicant is correct, a significant basis for the cancellation of the applicant's practising certificate falls away.
For these reasons I am satisfied that there is a serious question to be tried in this regard.

Jurisdiction – precedent

In his written submissions the applicant also submits that a decisionmaker cannot reach the necessary mental state of 'reasonable belief' based only on a charge. Rather, it is said that because the 'requisite belief must be objectively reasonable … there [must] be some proof or admission (by the practitioner) of the commission of the alleged offences'.[35]
[35] Applicant's Submissions, para 10.
In that form, the submission also raises a jurisdictional question – it argues that the decision cannot (lawfully) be made because the necessary mental state of satisfaction (that is, reasonable belief that the applicant cannot fulfil the inherent requirements of a practitioner) cannot be reached where only a charge has been laid.
In this regard, the applicant relies upon Ziems[36] in which the High Court held that Mr Ziems' conviction for manslaughter was not, in itself, sufficient to ground a finding that he was not a fit and proper person to hold a practising certificate. Rather, a majority of the Court held that it was necessary to consider all of the facts and circumstances surrounding and including the conviction before such a finding could be reached.
[36] Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 (Ziems).
The applicant submits that, a fortiori, the respondent (and the Tribunal in its stead) ought not reasonably believe that the applicant is unable to satisfy the inherent requirements for practice in the absence of a confession or proof that the facts underlying the charge are made out.[37]
[37] Applicant's Submissions, para 34.
At the hearing Mr Heenan appeared to submit that the Ziems point was not so much that in the absence of conviction (or other proof of the commission of the offence) the Tribunal cannot reach the state of reasonable belief, but that rather it was a situation where the Tribunal should not do so.[38]
[38] ts 9, 26 August 2022.
In either case I am satisfied that Ziems does not support the proposition.
Ziems was concerned with a final determination as to whether or not Mr Ziems was a fit and proper person to hold a practising certificate.
By contrast, the question under s 82(1)(d) is whether or not the respondent, or the Tribunal in its stead, holds a 'reasonable belief' that the practitioner is able to discharge the inherent requirements of a lawyer.
Putting to one side the question whether or not there are material differences between the 'fit and proper person' test and 'inherent requirements' tests, there is plainly a difference in the relevant mental state of satisfaction which the decisionmaker must reach.
In George v Rockett[39] a bench of seven High Court justices, having addressed the question as to what is sufficient in order for a decisionmaker to reasonably 'suspect' that something is the case held:
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief [than is the case for mere 'suspicion'],[40] but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
[39] [1990] HCA 26; (1990) 170 CLR 104 (Rockett), page 116.
[40] Words in brackets added.
That passage is frequently referred to and relied upon in cases under the National Law[41] in which a delegated regulator, such as the Medical Board of Australia (or the Tribunal in its stead) is empowered to take 'immediate action' if it holds a 'reasonable belief' that because of the practitioner's conduct they pose a serious risk to persons, and that it is necessary to take immediate action in the form of the suspension of their registration to protect public health and safety.
[41] Health Practitioner Regulation National Law (WA) as the Schedule to the Health Practitioner National Law (WA) Act 2010.
In Bernadt[42] McLure P held, relying on Rockett, that:
the fact or facts directly in issue concerning a practitioner's conduct, performance or health do not have to be proven on the balance of probabilities. However, there must be proven objective circumstances sufficient to justify the belief.
[42] Bernadt v Medical Board of Australia [2013] WASCA 259, [66].
In WD,[43] in a passage that has been repeated and adopted many times since, including in this State,[44] Deputy President Horneman-Wren SC of QCAT held that the mere fact and seriousness of criminal charges laid against the practitioner, supported by the untested statements of witnesses, in a particular case, might well be sufficient to create the necessary reasonable belief as to the existence of risk.
[43] WD v Medical Board of Australia [2013] QCAT 614, [83].
[44] Rao and Medical Board of Australia [2022] WASAT 55, [42].
Again, I emphasis that I make no finding, even a preliminary one in this regard. But I note that the material before the Tribunal includes both a copy of all of the relevant Prosecution Notices, which set out the terms of each of the charges, as well as the Statement of Material Facts (SoMFs), which in relation to each of the charges laid against the applicant, descend into quite considerable detail.
Whether or not those SoMFs are sufficient to find a 'reasonable belief' as to the applicant's ability to discharge the inherent requirements of a practitioner is for another day. But for the above reasons I consider the applicant's case, where it is based on Ziems, to be weak, as it appears to me to be based on a misapprehension of what is required to satisfy the relevant test.

Minor breach of condition

As noted above, the applicant submits that the breach of conditions amounts only to a 'minor' matter.[45]
[45] Applicant's Submissions, para 96.
The applicant submits that that is so for, in effect, two reasons:
1)because the condition has no real or discernible purpose; and
2)because the breach has been adequately explained and is unlikely to be repeated.
To the contrary, the respondent says, effectively, that the breach of the condition is very grave because the condition was imposed for an important purpose and because the explanation given for the breach lacks credibility.[46]
[46] Respondent's Outline, para 46.
The respondent submits, in effect, that the condition was imposed in order to ensure that someone 'kept an eye on' the applicant at all times[47] and that it is 'well-accepted' that meetings in public are carried out in order to avoid surveillance which was, by implication, the reason for the applicant's behaviour which constituted the breach.[48]
[47] The quote marks are mine. The respondent does not use the phrase which is, rather, mine by way of a colloquial summary of the respondent's submissions in this regard. Respondent's Outline, para 46.
[48] Respondent's Outline, para 46.
The respondent says that the condition must be read and understood in the context of condition (a) which requires the applicant to be employed and supervised.
The applicant submits that there is nothing to support the proposition that the condition has that purpose and points to the absence of anything in the condition which requires either Ms Lovi, as the practice manager, or Mr Hammond, as the appointed supervisor, to attend any, let alone all, meetings between the applicant and a client.[49]
[49] ts 53, 26 August 2022.
The applicant also submits that the breaches should be considered at the lower end of the spectrum because they have been explained by him and they only came to light because the applicant disclosed them.[50]
[50] Applicant's Submissions, para 96.
I repeat that it would be inappropriate for me to try to resolve either of the two issues in dispute – the purpose of the condition or the credibility of the explanation. What follows is therefore no more than very preliminary observations.
First, as to the purpose of the condition, I consider there to be some strength to the applicant's submission that the purpose identified by the respondent does not appear to be achieved by the condition in its current form.
However, at this stage I consider it appropriate to proceed on the basis that the condition was imposed for a relevant purpose that is responsive to the very serious charges laid against the applicant.
On that basis, I admit some difficulty with the applicant's characterisation of the breach as 'minor'. In circumstances where the respondent responded to the charges by the imposition of conditions, any breach of those conditions by the applicant must be considered serious.
Nonetheless, in circumstances where there is an explanation for the breach which is supported by his disclosure of it to Mr Hammond and, then, to the respondent, I consider the risk of further breaches to be reasonably low, despite the respondent's submission that the applicant has shown that he 'will not' comply in the future.[51]
[51] Respondent's Outline, paras 51–52.
The fact that the breach was disclosed, rather than discovered, provides some support for the applicant's explanation that the breach was inadvertent and resulted from the circumstances at the time, rather than premeditated for the purpose of avoiding disclosure.
Had the breach been deliberate it seems unlikely to me that he would have brought the breach to Mr Hammond's attention and, then, complied with his advice to disclose to the respondent.
Equally, the applicant has expressed his remorse for the breach in appropriate terms.[52] At this stage of proceedings I see no reason not to take those statements at face value.

Interests of person affected

[52] Dobson Affidavit, para 111.

Plainly, the interests of the applicant will be adversely affected if a stay is not granted.
The Dobson Affidavit, at paras 132 – 139, sets out in detail the applicant's financial obligations, both personally and as the only fee earner of TDL. It speaks of the number of clients for whom alternative arrangements will need to be made. It also speaks of the applicants fear of serious impacts to his mental health if a stay is not granted. Finally, but without explaining why, the applicant says that the cancellation of his practising certificate (by which I understand him to refer to a refusal to grant a stay) would 'effectively' end his legal career.
I agree with Mr Donaldson that the suggestion that a failure to grant a stay would result in the end of the applicant's career is one that is inconsistent with the experience of practitioners who return to practice after a period of suspension.[53]
[53] ts 39, 26 August 2022.
In this case the applicant is an employee practitioner and (assuming a stay was not granted), if his application for review is successful and the cancellation of his practising certificate is overturned then there seems to be no reason why he could not return to practice.
Having said that, I accept that it would be unlikely for the applicant to return to practise at TDL if there was a period of more than a couple months while he waited for the final determination of the review without a practising certificate. I accept the material before me that the financial obligations that would go unserviced in the absence of the applicant's income would pose a serious risk that TDL would close, with the resulting loss of the employment of the applicant's personal assistant and other repercussions.
Equally I am satisfied on the material before me that any more than a couple of months without income would, realistically, cause material financial hardship to the applicant as well as his brother with whom he shares a mortgage.[54]
[54] Dobson Affidavit, para 136.
Finally, in this regard, I accept that the refusal of a stay will impact on at least some of the applicant's clients who will need to make alternative arrangements for representation.[55] That will, in some cases, necessitate adjournments which ought to be avoided if possible.
[55] Dobson Affidavit, paras 127-129.
But I do not accept that the applicant, who was described by his own counsel as being at the beginning of his career, has such unique skills that his clients will be unable to obtain adequate alternative representation.
In short, while I do not accept all of the matters relied upon in this regard, I accept that the refusal of a stay will cause material hardship to the applicant and those associated with him.

The submissions of the respondent

Section 25(4)(b) of the SAT Act requires that I take into account any submissions made on behalf of the respondent.
The submissions of the respondent in relation to the strength of the applicant's case are described above and I have taken them into account.
The submissions of the respondent in relation to the public interest are described below and I have taken them into account.
The other relevant matters about which the respondent made submissions which are necessary to address were that:
a)great weight ought to be given to the respondent's decision because of its role as industry regulator; and
b)notwithstanding that the respondent's decision is subject to the right by a practitioner to seek review, its status is one of a 'final' decision and the decision ought not to be seen as 'provisional'.
The second proposition is, on its face, correct, but in my view the status of the respondents decision can only be properly understood when assessed in light of the legal framework, which includes the right of review and the manner in which it is to be assessed as well as the power to stay its effect, while that review is in process.
The first proposition may be correct but it does not take the respondent's case very far because, in my view, any weight that is given to the decision of the respondent that is the subject of these proceedings ought also be given to the various other decisions which the respondent has made in relation to the applicant's practising certificate since the initial charges were laid by the AFP in July 2021.
As I discuss further below, those decisions include the decision made 10 September 2021 not to cancel the applicant's practising certificate but, rather, to impose conditions implicit in the other decisions and, later, on 18 February 2022 to take no further action.

The public interest

Section 25(4) of the SAT Act requires that three matters be taken into account but does not provide any guidance in the weight to be given to each of the matters listed.
In my view the relative weight should be informed by a range of matters, perhaps most important of which is the purpose of the legislative regime under which the decision is made.
As noted above, the express objective of the Uniform Law is to promote the administration of justice by ensuring minimum standards and the protection of the public.
The public interest is separate and distinct from the protection of the public although the two are related in that it is clearly in the public interest for the public to be protected. The protection of the public in this context includes the protection of public confidence in the legal system.
As noted above, in my view it is also in the public interest for any limitations on a practitioner's ability to practise to be imposed only to the extent that it is necessary to do so and, specifically, that such limitations are imposed only to the extent that they properly address the particular risks posed by them and their conduct.
The result is, in my view, that it is necessary to carefully assess the risk posed by the applicant's continued practice to the protection of the public (in both senses) and only grant a stay if that risk is insufficient to overwhelm the personal inconvenience suffered by the applicant and the public interest in having a competent lawyer practising.
In response to a request by me to precisely identify the risk posed by the applicant's continuing practice, Mr Donaldson SC replied that the risk was that the applicant will, again, breach the conditions in order to engage in conduct similar to that for which he has previously been charged and for which conduct he will avoid detection.[56]
[56] ts 50, 26 August 2022.
I consider that the risk that the applicant will, again, breach the conditions is low. That conclusion is informed by both the matters identified above going to his explanation for the breach, the fact that that explanation is supported by his disclosure of the breach (through Mr Hammond to the respondent), the disclosure itself and his (appropriately worded) expression of remorse.
Accordingly, I am of the view that the applicant's breach of the condition provides somewhat limited weight in support of the proposition that a stay is the only way in which the risk posed by the applicant can properly be managed.
To the extent that the criminal charges also pose a threat to the protection of the public, I consider the respondent's actions under the 2008 Act to be instructive.
The respondent's response to the two initial Commonwealth charges (laid on 7 June 2021) was to, having first given notice that it intended to cancel the applicant's practising certificate on the ground that it considered him not a fit and proper person, impose conditions.
Having been advised in mid-January 2022 that the applicant had been charged with a subsequent, State based, offence, the respondent decided, having first given notice that it intended to cancel his practising certificate, to take no action.
That is, having been charged with offences of the most serious kind, (such that, in Mr Donaldson's submission, if they are proven, it was 'axiomatic' that the applicant is unable to fulfill the requirement of an Australian legal practitioner)[57] the respondent decided to allow the applicant to continue to practice, subject to conditions, for more than 12 months.
[57] ts 32, 26 August 2022.
In my view it is reasonable to infer from the above that the respondent did not consider that the first three charges brought against the applicant, either by themselves or together, were sufficient to warrant a cancellation of the applicant's practising certificate.
In my view it is also relevant to note that:
a)having been advised on 14 June 2022 that the applicant had been charged with two subsequent Commonwealth offences; and
b)having been advised in late May 2022 that he has breached the relevant condition three times,
the respondent:
c)did not, at all, exercise either its power under s 77 or 82(2); and
d)took until 11 August 2022 to cancel the applicant's practising certificate.
It is not for me, at least at this stage, to express my opinion as to the correctness or otherwise of those decisions.

However, in my view, some weight may be placed on those decisions as reflecting a reasonable review as to the extent to which the applicant's continued practice reflects a risk to the protection of the public and/or the reputation of the legal profession.

Conclusion

For the above reasons I am of the view that the breach of conditions, while serious, ought not to be seen as likely to reoccur if a stay is granted. Whether the breach is sufficient, when considered with the criminal charges, to warrant the cancellation of the applicant's practising certificate is for another day, but I do not consider it sufficient to warrant refusal of a stay.
The criminal charges are very serious indeed. I agree that, if found proven, they may well warrant cancellation. Even unproven they pose some risk to the public interest in that they may be seen as undermining public confidence in, and the reputation of, the legal profession.
But it is important not to make too much of that. As has been recognised several times, the public can be expected to recognise the difference between a charge and a conviction.
That may well explain the respondent's approach to the matter prior to its final decision.

For these reasons as well as what I consider to be a serious question to be tried in the case of the jurisdictional question of statutory construction, I am minded to grant a stay of the respondent's decision to cancel the applicant's practising certificate.
Of course, should facts and circumstances change, including but not limited to a further breach of the conditions it is open to the respondent to seek a variation of that order.
Accordingly, I will order that the stay is to effect until further order of the Tribunal.

Orders

The Tribunal orders:
1.The stay is granted until further order of the Tribunal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
RM
Associate to Deputy President Judge Jackson
6 SEPTEMBER 2022