FIRST COMPLAINANT and LEGAL PROFESSION COMPLAINTS COMMITTEE - [2019] WASAT 136

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION:   FIRST COMPLAINANT and LEGAL PROFESSION COMPLAINTS COMMITTEE [2019] WASAT 136
MEMBER:   JUDGE D PARRY, DEPUTY PRESIDENT
MR D AITKEN, SENIOR MEMBER
MS R MOORE, MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   20 DECEMBER 2019
FILE NO/S:   VR 106 of 2018
BETWEEN:   FIRST COMPLAINANT
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
A LEGAL PRACTITIONER
Second Respondent

FILE NO/S: VR 147 of 2018
BETWEEN: SECOND COMPLAINANT
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
A LEGAL PRACTITIONER
Second Respondent

FILE NO/S: VR 247 of 2018
BETWEEN: FIRST COMPLAINANT
First Applicant
SECOND COMPLAINANT
Second Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
A LEGAL PRACTITIONER
Second Respondent

Catchwords:

Legal practitioners - Summary conclusion of complaints procedure - Review of decisions of Legal Profession Complaints Committee to privately reprimand practitioner and to require practitioner to pay compensation to applicants - Complaints about conduct of practitioner in guardianship and administration proceedings seeking guardianship and administration orders in respect of second applicant who is first applicant's mother and practitioner's grandmother - Special circumstances warranting a private, rather than public, reprimand, because practitioner cannot be identified as a party to guardianship and administration proceedings - Leave to seek review of decision of Legal Profession Complaints Committee to dismiss complaint about practitioner's alleged failure or refusal to pay amounts due under compensation orders - Whether decision to dismiss complaint was wrong or attended with sufficient doubt to justify the grant of leave - Practice & procedure - Non-publication order - Parties to guardianship and administration proceedings must not be identified - Non-publication order made in relation to names of applicants, practitioner, practitioner's brothers and other family members with same surname, referred to in evidence before, or reasons for decision of, the Tribunal in these proceedings

Legislation:

Guardianship and Administration Act 1990 (WA), s 3(1), s 4(2), s 40, s 64(1), s 65, Sch 1, cl 12
Legal Profession Act 2008 (WA), s 402, s 403, s 410(1)(e), s 421, s 424(1), s 425, s 425(a), s 426, s 426(1), s 426(2), s 428, s 435, s 435(1), s 435(1)(a), s 435(1)(b), s 435(2), s 448
State Administrative Tribunal Act 2004 (WA), s 17(1), s 27, s 29(1), s 29(3), s 29(3)(c)(ii), s 30, s 46(1), s 51(1), s 60(2), s 61(4)(c), s 62(3), s 98

Result:

VR 106 of 2018
Application for review dismissed
Decision of first respondent to privately reprimand second respondent and make compensation order in favour of first applicant affirmed

VR 147 of 2018
Application for review dismissed
Decision of first respondent to privately reprimand second respondent and make compensation order in favour of second applicant affirmed

VR 247 of 2018
Leave to seek review of decision of first respondent to dismiss applicants' complaint about second respondent refused
Application for review dismissed

Category: B

Representation:

VR 106 of 2018

Counsel:

Applicant	:	In Person
First Respondent	:	Mr S Merrick
Second Respondent	:	Mr M D Howard SC and Mr K L Christensen

Solicitors:

Applicant	:	N/A
First Respondent	:	Law Complaints Officer
Second Respondent	:	CX Law

VR 147 of 2018

Counsel:

Applicant	:	In Person
First Respondent	:	Mr S Merrick
Second Respondent	:	Mr M D Howard SC and Mr K L Christensen

Solicitors:

Applicant	:	N/A
First Respondent	:	Law Complaints Officer
Second Respondent	:	CX Law

VR 247 of 2018

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
First Respondent	:	Mr S Merrick
Second Respondent	:	Mr M D Howard SC and Mr K L Christensen

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
First Respondent	:	Law Complaints Officer
Second Respondent	:	CX Law

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

Greenwood and Legal Profession Complaints Committee [2010] WASAT 31
Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56
Legal Profession Complaints Committee and Chang [2019] WASAT 67
Neil and Legal Profession Complaints Committee [2011] WASAT 88
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331
Winzer and Roberts-Smith [2011] WASAT 140

TABLE OF CONTENTS

Introduction

Proceeding VR 106 of 2018 - Review of the decision of the Committee regarding the first complaint

Proceeding VR 147 of 2018 - Review of the decision of the Commitee regarding the second complaint

Proceeding VR 247 of 2018 - Review of the decision of the Committee regarding the third complaint

Committee's decision regarding the first complaint

Committee's decision regarding the second complaint

Committee's decision regarding the third complaint

GA application and GA withdrawal letter

Legal framework and principles

Parties' submissions

Applicants' submissions

Committee's submissions

Practitioner's submissions

Consideration of the first complaint and the second complaint

Does s 426 of the LP Act apply in relation to the first complaint and the second complaint?

Has the Committee completed an investigation?

Has the practitioner consented to the exercise of power?

Is there a reasonable likelihood that the practitioner would be found guilty by the Tribunal of unsatisfactory professional conduct (but not professional misconduct)?

Is the practitioner generally competent and diligent?

Is the taking of action under s 426 of the LP Act justified having regard to all the circumstances of the case and whether any other substantiated complaints have been made against the practitioner?

Section 426 of the LP Act applies

What action should be taken under s 426(2) of the LP Act?

Consideration of whether leave should be given to review the decision of the Committee to dismiss the third complaint

Conclusion

Orders

Attachment A - GA application

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The first applicant and the second applicant (together, applicants) are seeking the review of three decisions of the first respondent, the Legal Profession Complaints Committee (Committee), regarding three complaints which the applicants made to the Committee about the conduct of the second respondent, who is a legal practitioner (practitioner).
There is a separate proceeding in respect of each of the three decisions of the Committee, namely VR 106 of 2018 (first proceeding), VR 147 of 2018 (second proceeding) and VR 247 of 2018 (third proceeding). The Tribunal ordered, pursuant to s 51(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), that the three proceedings are to remain as separate proceedings, but are to be heard and determined together, with evidence in one proceeding to be evidence in each other proceeding.[1] This was because the first two complaints arise from the same circumstances and the third complaint arises from the decision made by the Committee regarding the first two complaints.
[1] Order 4 made on 8 February 2019.
The Tribunal also ordered, pursuant to s 60(2) of the SAT Act, that, subject to any further order, the proceedings are to be determined entirely on the documents.[2] The documents on which the Tribunal is determining the proceedings are:
[2] Order 8 made on 8 February 2019.
•The application dated and filed on 18 June 2018 and accompanying documents which commenced the first two proceedings;
•The application dated and filed on 27 December 2018 which commenced the third proceeding;
•The Committee's s 24 bundle of documents dated and filed on 17 October 2018 in the first two proceedings;
•The Committee's s 24 bundle of documents dated and filed on 25 February 2019 in the third proceeding;
•The applicants' bundle of documents dated March 2019 and filed on 8 March 2019 (volumes 1 and 2);
•The applicants' further bundle of documents dated and filed on 15 March 2019;
•The applicants' submissions and cases dated 4 April 2019 and filed on 18 April 2019 and accompanying bundle of documents (volumes 1, 2 and 3);
•The Committee's submissions dated 15 May 2019 and filed on 16 May 2019;
•The practitioner's submissions dated and filed on 21 May 2019; and
•The applicants' response to the practitioner's submissions dated 5 June 2019 and filed on 6 June 2019.
The circumstances from which the first two complaints arise involve an application made by the practitioner and her brothers dated 7 June 2016, which was lodged with the Tribunal on 20 June 2016, under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act), seeking an administration order and a guardianship order in respect of the second applicant, who is the mother of the first applicant and the grandmother of the practitioner and her brothers (GA application).[3]
[3] Legal Profession Complaints Committee s 24 Bundle of Documents dated 17 October 2018 pages 108-117. The GA application is reproduced (with redactions in accordance with the non-publication orders referred to at [12] below) at Attachment A to these reasons.
The Tribunal listed the GA application to be heard on 19 August 2016 (GA hearing) and gave notice of the GA application and the GA hearing to the persons specified in s 41 of the GA Act, including the second applicant and the first applicant, who is the son of the second applicant and the uncle of the practitioner and her brothers.
On 12 August 2016, the practitioner prepared and sent a letter to the Tribunal on behalf of herself and her brothers seeking leave to withdraw the GA application (GA withdrawal letter).[4]
[4] Legal Profession Complaints Committee s 24 Bundle of Documents dated 17 October 2018 pages 133-135. The GA withdrawal letter is set out at [27] below.
On 15 August 2016, the Tribunal granted the practitioner and her brothers leave, pursuant to s 46(1) of the SAT Act, to withdraw the GA application and the GA application was withdrawn.
Under cl 12 of Sch 1 of the GA Act, a 'party' to a proceeding under the GA Act must not be identified in any account of the proceeding. The term 'party' is relevantly defined in s 3(1) of the GA Act as follows:
party in relation to an application under this Act means the applicant, the … person in respect of whom an application is made, [and] a person to whom notice of an application is required by this Act to be given, or to whom such notice is given …
Under this definition, the practitioner and her brothers (as the applicants in the GA application), the first applicant (as a person to whom notice of the GA application was given) and the second applicant (as the person in respect of whom the GA application was made) were each a 'party' to the proceeding under the GA Act in respect of the GA application.
As the parties to proceedings under the GA Act must not be identified, the identities of the first applicant, the second applicant, the practitioner and her brothers should be the subject of a non-publication order, pursuant to s 62(3) and s 61(4)(c) of the SAT Act, in the present proceedings brought by the applicants. Section 62(3) of the SAT Act states as follows:
On the application of a party or on its own initiative the Tribunal may, in the circumstances described in section 61(4), order that anything, or any particular thing, to which this section applies is not to be published except in the manner and to the persons, if any, specified by the Tribunal.
Section 61(4)(c) of the SAT Act states, in part, as follows:
The Tribunal may make an order … if the Tribunal considers it necessary to do so —
…
to avoid prejudicing the administration of justice[.]
We note that in proceedings VR 106 of 2018 and VR 247 of 2018 a non-publication order has already been made in relation to the identity of the practitioner. It appears that no equivalent order has yet been made in proceeding VR 147 of 2018. Having regard to cl 12 of Sch 1 of the GA Act, in our view, it is necessary and appropriate to make a non-publication order, pursuant to s 62(3) and s 61(4)(c) of the SAT Act, to avoid prejudicing the administration of justice, prohibiting the Tribunal and any other person from publishing the names of the first applicant, the second applicant, the practitioner, her brothers and any other family member with the same surname, referred to in evidence before, or the reasons for decision of, the Tribunal in these proceedings.[5]

Proceeding VR 106 of 2018 - Review of the decision of the Committee regarding the first complaint

[5] Under s 62(4) of the SAT Act, a non-publication order can only be made by a legally qualified member or the presiding member if the Tribunal as constituted for a hearing does not include a legally qualified member. Accordingly, the non-publication orders are made by Deputy President Judge Parry and Senior Member Aitken.

The first proceeding to be determined by the Tribunal is VR 106 of 2018, which is an application by the first applicant, under s 435(1)(b) of the Legal Profession Act 2008 (WA) (LP Act), for the review of the decision of the Committee dated 1 June 2018 regarding the complaint made by the first applicant to the Committee on or about 16 August 2016 about the practitioner (first complaint).
On the basis of the correspondence and other documents which the first applicant had provided to it, the Committee distilled and summarised the first complaint in a letter to the first applicant dated 5 December 2017 in the following terms: [6]
[6] Legal Profession Complaints Committee s 24 Bundle of Documents dated 17 October 2018 pages 367-370 (original emphasis).
Dear [first applicant]
COMPLAINT: [THE PRACTITIONER]
I write in relation to your complaint to the Committee about the conduct of your niece, [the practitioner] (practitioner).
I confirm that your complaint relates to Application GAA [No.] (Application) in relation to your mother, [the second applicant], which was lodged in the State Administrative Tribunal (Tribunal) by the practitioner on behalf of herself and her brothers, [1] and [2], on 7 June 2016, and the letter from the practitioner to the Tribunal dated 12 August 2016 (Letter), by which the practitioner sought leave, on behalf of herself and her brothers, to withdraw the Application.
I note that your mother has also made a complaint to the Committee about the practitioner's conduct in respect of the Application.
I refer to the information you have sent to the Committee by way of your emails dated 16 August 2017, 10 September 2017, 16 September 2017 and 28 September 2017 for the purpose of assisting the Committee's consideration of your complaint and your mother's complaint.
In particular, I refer to the following documents you have sent to the Committee:
(a)"Statements And Allegations Made Against [the second applicant] And [the first applicant]";
(b)"Letter Dated 12 August 2016 By [the practitioner] To The SAT Statements And Allegations Made"; and
(c)your letter to the Committee dated 28 September 2017 in relation to your mother's complaint.
I confirm that copies of those documents will be provided to the practitioner in the interests of procedural fairness and will also be provided to the Committee when its members consider the complaint and the practitioner's submissions, where requested by the Committee, in response to the complaint.
Please note that each and every question set out in your documents listed at (a), (b) and (c), above, will not be put specifically to the practitioner. In relation to items 1 to 25 on pages 1 and 2 of your letter to the Committee dated 28 September 2017 (listed at (c), above), only those items which are relevant to the Application and the Letter require investigation by the Committee.
Putting a complaint to a practitioner for the purposes of a formal investigation under the Act requires the Committee to prepare a letter that properly identifies to the practitioner the nature of the complaint in terms of possible unsatisfactory professional conduct or professional misconduct in a manner that enables the practitioner to properly respond by way of submissions and allows the practitioner reasonable time to provide those submissions.
On the basis of my understanding of the complaint I propose to put to the practitioner the allegations of possible unsatisfactory professional conduct or professional misconduct, and request her submissions in response to those allegations, in the terms set out in the following paragraphs. Please note that when I use the word "complainant'' I am referring to you and when I use the words "you/your" I am referring to the practitioner.
"The nature of the complaint is that you engaged in possible unsatisfactory professional conduct or professional misconduct by:
1.Preparing and filing in the Tribunal the Application which contained a number of assertions about the complainant, being:
(a)at page 4 of 19 under the heading "Please explain what your interest is in making the application. In answering this please outline what is your relationship to the person about whom you are making this application"; "My uncle has also changed her telephone number";
(b)at page 9 of 19 under the heading "What attempts have been made to solve the issues less formally":
"My uncle is not interested. He wants control of my grandmother as he did with my grandfather which resulted in the Public Advocate being appointed"'; and ''He has poisoned her mind against us and we have been left on the outer";
(c)at page 14 of 19 under the heading "Why is a guardian needed (eg what problems led you to make this application)":
"Our uncle exerts undue influence over her and restricts any contact";
(d)at page 14 of 19 under the heading "What attempts have been made to solve the issues less formally":
"All calls, visits are screened by our uncle. We tried many times to resolve this while our father and grandfather were alive. However, since their deaths, things have become harder and harder";
which:
(a)were couched in emotive and inflammatory language;
(b)appear to be without any reasonable basis; and
the framing of the whole of the Application, whilst it may have concerned matters that were known or about which you were aware, was intended to convey the impression, and support the proposition, that "This prevents [the complainant] from any objective capability of being guardian for my grandmother or administering her affairs".
2.Making further assertions about the complainant to the Tribunal in your letter dated 12 August 2016 (Letter), including him "issuing various threats", that he had "spun a number of lies" to your grandparents, that he had ''poisoned" your grandmother against you, that he sent faxes and letters stating that you were "killing our grandfather", that you were reluctant to visit your grandparents because "visiting them would be met with a tirade of abuse from [the complainant]" and your concern that he might become "abusive and/or aggressive towards me", that he "has always had a volatile temper" and you "did not wish to be on the receiving end of any outburst", that the complainant's conduct "has directly prevented us from continuing our relationship with our grandmother", that the Application "was commenced following the receipt of an email by [the complainant] that he was living off his mother's pension'', that the complainant was acting in Magistrates Court proceedings as your grandmother's "Guardian/Attorney despite telling the public advocate and trustee that he has not used any EPA or EPG", that he is "capable of deceit who will act to his own advantage to suit himself", and "Given this and other history which I do not intend to go into, we are not being unreasonable to be concerned that if [the complainant] is in a position where he is permitted to act as our grandmother's guardian or attorney, he will only act to further his own agenda and personal interests which we fear will not be in our grandmother's best interests",
all of which were neither appropriate nor relevant to include in the Letter when the purpose of the Letter was to withdraw the Application on behalf of yourself and your brothers and you acknowledged in the Letter that your grandmother had the capacity to make her own decisions and the appointment of an administrator and a guardian was not required.
3.Disclosing to the Tribunal, at paragraph 7 on page 2 of your Letter, without the complainant's consent, confidential information relating to the complainant's superannuation which you obtained in the course of carrying out your role as executor of your late father's estate."
I will provide you with a copy of the letter that is sent to the practitioner and contact you again on receipt by the Committee of the practitioner's response.
Please note that any letters, information or documents given to you by the Committee in the course of its investigation of your complaint are confidential and are given to you solely for the purposes of the complaint investigation. They should not be disclosed to third parties, except for the purpose of obtaining legal advice, and should not be used otherwise than in connection with the complaint and its investigation.
Yours faithfully
(MS) JL WAKELY
Legal Officer

It appears that the first applicant accepted the Committee's summation of the first complaint in the letter set out immediately above. The Committee then put the first complaint to the practitioner in those terms. The practitioner provided submissions to the Committee in response to the first complaint.

Proceeding VR 147 of 2018 - Review of the decision of the Commitee regarding the second complaint

The second proceeding to be determined by the Tribunal is VR 147 of 2018, which is an application by the second applicant, under s 435(1)(b) of the LP Act, for the review of the decision of the Committee dated 1 June 2018 regarding the complaint about the practitioner made by the second applicant to the Committee on or about 31 August 2017 (second complaint).
On the basis of the correspondence and other documents which the second applicant had provided to it, the Committee distilled and summarised the second complaint in a letter to the second applicant dated 6 December 2017 in the following terms: [7]
[7] Legal Profession Complaints Committee s 24 Bundle of Documents dated 17 October 2018 pages 371-374 (original emphasis).
Dear [second applicant]
COMPLAINT: [THE PRACTITIONER]
I refer to the concerns you have expressed to the Committee about the conduct of the above practitioner, your niece [sic], [the practitioner] (practitioner), in relation to Application GAA [No.] (Application) which was lodged by the practitioner on behalf of herself and her brothers, [1] and [2], in the State Administrative Tribunal (Tribunal) on 7 June 2016.
I note that by the Application, the practitioner and her brothers applied for orders that the Public Trustee be appointed as your administrator and the Public Advocate be appointed as your guardian and that by a letter to the Tribunal dated 12 August 2016 (Letter) the practitioner sought leave, on behalf of herself and her brothers, to withdraw the Application.
I also refer to:
(a)the email from your son, [the first applicant], to the Committee dated 31 August 2017 by which he confirmed, on your behalf, that you wished to proceed with a formal complaint against the practitioner in relation to the Application and the Letter; and
(b)[the first applicant's] letter to the Committee dated 28 September 2017 ([the first applicant's] letter) in which he summarised your complaint.
Please note that copies of [the first applicant's] email dated 31 August 2017 and [the first applicant's] letter will be provided to the Committee members when they consider the complaint and the practitioner's submissions in response to the complaint.
A copy of [the first applicant's] letter will also be provided to the practitioner in the interests of procedural fairness. However, she will be informed, in relation to items 1 to 25 on pages 1 and 2 of the letter, that only those items which relate to the Application and the Letter require investigation by the Committee.
On the basis of my understanding of your complaint I propose to put to the practitioner the allegations of possible unsatisfactory professional conduct or professional misconduct, and request her submissions in response to those allegations, in the terms set out in the following paragraphs. Please note that when I use the word ''complainant" I am referring to you and when I use the words "you/your" I am referring to the practitioner.
''The nature of the complaint is that you engaged in possible unsatisfactory professional conduct or professional misconduct by:
1.Preparing and causing to be lodged in the Tribunal the Application seeking orders for the appointment of the Public Trustee as the complainant's administrator and the Public Advocate as the complainant's guardian by asserting that:
(a)the complainant had a mental disability, namely "Dementia";
(b)the alleged disability "affects day to day reasoning and impairs our grandmother's ability to make decisions";
(c)"She is not financially literate"; and
(d)the complainant was in need of an administrator of her estate "Because we believe that our grandmother is not capable of managing her own affairs",
in circumstances where there was no reasonable basis for any of those assertions, which were not supported by any medical or other evidence and were not, in fact, correct.
2.Failing to make reasonable enquiries to ascertain the true position in relation to whether the complainant:
(a)was in need of an administrator pursuant to the criteria set out in s.64(1) of the Guardianship and Administration Act 1990 (WA) (Act), including, specifically, whether the complainant was unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate; and
(b)was in need of a guardian pursuant to the criteria set out in s.43(1) of the Act, including, specifically, whether the complainant was incapable of looking after her own health or was unable to make reasonable judgments in respect of matters relating to her person,
prior to preparing and lodging the Application in the Tribunal.
3.Failing to provide the complainant with reasonable notice that you and your brothers were making the Application, the contents of which were bound to distress her.
4.Making assertions in the Application that:
(a)the application was urgent; and
(b)the reason why it was an urgent application was that "Care required and uncle trying to represent her on financial matters",
as a result of which the Tribunal made interim orders on 22 June 2016 pursuant to s.65 of the Act authorising the Public Trustee to exercise the functions of a plenary administrator of the complainant's estate pending determination of the question of whether the complainant was, in fact, a person in respect of whom a declaration should be made pursuant to s.64(1) of the Act, causing the complainant distress, embarrassment and inconvenience as a result of the Public Trustee's intervention in her affairs, when no urgency, in fact, existed.
5.Threatening in your letter to the Tribunal dated 12 August 2016 on behalf of yourself and your brothers that "we may make an application in the future should the current circumstances regarding her wellbeing change", causing further distress to the complainant, in circumstances where you acknowledged in the same letter that "The independent parties appointed by SAT have informed us that they are satisfied that our grandmother has capacity and that she is currently doing well" and there was no reasonable basis for threatening to make a further application in the future.
6.In all the circumstances, making a frivolous and vexatious Application to the Tribunal which lacked substance, was unsupported by any evidence and was ultimately withdrawn by an order of the Tribunal on 15 August 2016 following receipt to [sic] your letter to the Tribunal dated 12 August 2016 seeking leave to withdraw the Application."
Please confirm, in your own handwriting, that my summation properly reflects your complaint about the practitioner's conduct. On receipt of your written confirmation, I will send a letter to the practitioner in respect of your complaint.
I will provide you with a copy of the letter that is sent to the practitioner and contact you again on receipt by the Committee of the practitioner's response.
Please note that any letters, information or documents given to you by the Committee in the course of its investigation of your complaint are confidential and are given to you solely for the purposes of the complaint investigation. They should not be disclosed to third parties, except for the purpose of obtaining legal advice, and should not be used otherwise than in connection with the complaint and its investigation.
Yours faithfully
(MS) JL WAKELY
Legal Officer
The second applicant is not able to communicate in English; the language in which she communicates is Italian. Therefore, when the Committee sent its letter set out immediately above to her, it also gave her a version of the letter translated into Italian.[8]
[8] Legal Profession Complaints Committee s 24 Bundle of Documents dated 17 October 2018 pages 382-385.
On 6 December 2017, the first applicant sent to the Committee a copy of the Committee's letter to the second applicant set out at [17] above which she had signed underneath words written in Italian, which the first applicant states translate to:[9]
[The first applicant] has explained this letter to me. You (in the plural) must proceed.
[9] Legal Profession Complaints Committee s 24 Bundle of Documents dated 17 October 2018 pages 375 and 376.
Following the second applicant's acceptance of the Committee's summation of the second complaint in the Committee's letter set out at [17] above, it was then put to the practitioner in those terms and the practitioner provided submissions to the Committee in response.

Proceeding VR 247 of 2018 - Review of the decision of the Committee regarding the third complaint

The third proceeding to be determined by the Tribunal is VR 247 of 2018, which is an application by the first applicant and the second applicant, under s 435(1)(a) of the LP Act, for the review of the decision of the Committee dated 21 December 2018 to dismiss the complaint made by both the first applicant and the second applicant to the Committee on 14 June 2018 about the practitioner (third complaint) in the following terms:[10]
[On] 1 June 2018 [the practitioner] was ordered by the [Committee] to make payments to [the first applicant] and [the second applicant]. Despite demands she has failed or refused to make the payments which are due on demand.
[10] Legal Profession Complaints Committee s 24 Bundle of Documents dated 25 February 2019 page 28.
As indicated later in these reasons, because the Committee found the third complaint to be 'unreasonable', leave to seek review of the Committee's decision to dismiss the complaint is required under s 435(2) of the LP Act.

Committee's decision regarding the first complaint

The Committee's decision in relation to the first complaint and its reasons for that decision, as stated in its letter to the first applicant dated 1 June 2018, are as follows:[11]
[11] Legal Profession Complaints Committee s 24 Bundle of Documents dated 17 October 2018 pages 23-33 (original emphasis).
Dear [first complainant]
COMPLAINT:     [THE PRACTITIONER]
At a recent meeting, in the exercise of its summary conclusion powers under s.426 of the Legal Profession Act 2008 (WA) (Act), with the practitioner's consent:
1.The Committee was satisfied that the practitioner is generally competent and diligent and that the taking of action under s.426 of the Act is justified.
2.In the exercise of its summary conclusion powers under s.426 of the Act, the Committee was satisfied that there is a reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal (Tribunal) of:
(a)between June 2016 and August 2016, in the course of preparing, with her brothers, and allowing to be lodged on 7 June 2016 in the Tribunal, on behalf of herself and her brothers, application GAA [No.] (Application) under the Guardianship and Administration Act 1990 (WA) (GAA) seeking orders in relation to their grandmother, [the second applicant], for the appointment of the Public Trustee as [the second applicant's] administrator and the Public Advocate at [sic] [the second applicant's] guardian; and
(b)preparing, with her brothers, a letter (Letter) to the Tribunal which the practitioner allowed to be sent on 12 August 2016 seeking leave to withdraw the Application,
engaging in unsatisfactory professional conduct, within the meaning of ss.402 and 438 of the Act, in that her conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner, in that:
2.1the practitioner allowed the Application to be lodged in the Tribunal in the manner in which it had been prepared, as a result of which the Application contained statements or assertions of belief or opinion about you, whom the practitioner and her brothers did not name, referring to you as their ''uncle", but you could be identified by the Tribunal as a result of the reference, in the Application, to the Tribunal's file in respect of their grandfather, [the second applicant's] late husband, namely:
(a)"We have been prevented from seeing our grandmother. My uncle has also changed her telephone number";
(b)"There are ongoing legal disputes between my uncle and my father's estate. This prevents him from any objective capability of being guardian for my grandmother or administering her affairs";
(c)"He wants control of my grandmother as he did with my grandfather which resulted in the Public Advocate being appointed'';
(d)"He has poisoned her mind against us and we have been left on the outer. This is especially so since our grandfather's death";
(e)"Our uncle exerts undue influence over her and restricts any contact"; and
(f)''All calls, visits are screened by our uncle. We tried many times to resolve this while our father and grandfather were alive. However, since their deaths, things have become harder and harder",
which were unnecessarily contentious, provocative and intemperate; and
2.2the practitioner allowed the Letter to be sent to the Tribunal in the manner in which it had been prepared, as a result of which the Letter contained statements and assertions including, for example:
(a)[the first applicant] had issued "various threats" to the practitioner and her brothers over the years if they visited or made contact with their grandparents;
(b)[the first applicant] "has spun a number of lies to our grandparents, especially our grandmother, in relation to us which has essentially poisoned her against us'';
(c)visiting her grandparents "would be met with a tirade of abuse from [the first applicant]";
(d)"[the first applicant] has always had a volatile temper and I did not wish to be on the receiving end of any outburst";
(e)that [the first applicant's] conduct "has directly prevented us from continuing our relationship with our grandmother";
(f)the practitioner and her brothers were ''concerned that if [the first applicant] is in a position where he is permitted to act as our grandmother's guardian or attorney, he will only act to further his own agenda and personal interests which we fear will not be in our grandmother's best interests"; and
(g)"This is especially so given [the first applicant] is a man of means with exceptionally large superannuation deposits (he and his wife having recently received access to almost $2M to my knowledge) so there is absolutely no need to be using any of our grandmother's assets for his own use",
which, in circumstances where the purpose of the Letter was to withdraw the Application, were irrelevant, contentious, provocative and intemperate; and, in the case of the statement in (g), contained personal and sensitive information about your financial affairs.
3.The Committee accepted the practitioner's submissions that there existed special circumstances justifying orders for a private reprimand rather than a public reprimand and ordered that the practitioner be privately reprimanded pursuant to s.426(2)(a) of the Act.
4.The Committee ordered that the practitioner pay to you compensation in the sum of $4,790 pursuant to s.426(2)(c) and s.448(2)(c) of the Act.
5.The Committee accepted that there existed exceptional circumstances justifying the non-disclosure to you of the practitioner's submissions to the Committee and the nondisclosure to the practitioner of your submissions to the Committee and resolved that:
(a)the practitioner's submissions to the Committee would not be disclosed to you; and
(b)your submissions to the Committee would not be disclosed to the practitioner.
A statement of the Committee's reasons for decision is as follows:
1.On 7 June 2016 the practitioner lodged the Application in the Tribunal under s.40 of the GAA seeking orders for the appointment of the Public Trustee as [the second applicant's] administrator and the Public Advocate as [the second applicant's] guardian. The practitioner lodged the Application on behalf of herself and her brothers, [1] and [2], as a member of [the second applicant's] family and did not refer to herself, in the Application, as a "lawyer" or seek to use her professional position to advance the Application.
2.The decision by the practitioner and her brothers to lodge the Application was prompted by 2 events that, amongst other things, caused them to be concerned about [the second applicant's] welfare:
(a)on about 22 January 2016 [the first applicant], the practitioner's uncle and [the second applicant's] son, lodged a minor case claim in the Magistrates Court of Western Australia (Magistrates Court) stating, amongst other things, that he did so "AS EPA FOR [THE SECOND APPLICANT]"; and
(b)on 2 June 2016 [the first applicant] sent an email to the Supreme Court of Western Australia (Supreme Court) in which he stated, amongst other things:
"We are/were in a desperate position with no funds to pay bills legal fees and live and relying on my 85 year old mother for living support assistance from her pension."
3.As a result of a dispute (dispute) between the practitioner's father, the late [name] (who died in March 2015) (deceased), and his brother, [the first applicant], which arose in about 2011 there was, at the material time, conflict between [the first applicant], on the one hand, and the family of the deceased, on the other hand.
4.The dispute related to the many companies and trusts the deceased and [the first applicant] had established from about 1976 and concerned their rights to control those companies and trusts and the benefit of the assets held by the companies and the assets which formed part of the trust property of the trusts. As at 2016 there had been more than 20 court actions, in the Magistrates Court, the District Court of Western Australia and the Supreme Court, arising out of the dispute. There had also been 3 applications lodged in the Tribunal in 2014 by respectively, [the first applicant], [the first applicant] and [the second applicant] (as joint applicants), and the deceased in relation to the late [name] ([the second applicant's] husband, the deceased's and [the first applicant's] father, and the practitioner's and her brothers' grandfather) ([name]).
5.As a consequence of the dispute, the practitioner and her brothers had not been in regular contact with [the second applicant].
6.Prior to the practitioner lodging the Application, [the practitioner's brother 1] contacted the Tribunal, informed an officer of the Tribunal that he and his siblings were concerned about [the second applicant's] welfare and requested advice about what options were available if it was found that [the second applicant] was not capable of making reasonable judgments about her estate and/or her person. [The practitioner's brother 1] also informed the Tribunal's officer that he and his siblings did not wish to cause [the second applicant] any unnecessary stress. He was informed that if he and his siblings had concerns about [the second applicant's] welfare an application under s.40 of the GAA should be made. When [the practitioner's brother 1] enquired what information was required to support the application, he was informed by the officer of the Tribunal that once the application had been lodged, the Tribunal would contact him to discuss what further information would be required (if any). [The practitioner's brother 1] communicated to the practitioner and his brother the content of his discussions with the Tribunal's officer and the siblings decided to lodge the Application, in accordance with the advice that [the practitioner's brother 1] had received from the Tribunal.
7.The practitioner and her brothers prepared the Application and the practitioner allowed it to be lodged in the Tribunal in circumstances where the application process is informal, the application form itself is not a formal or detailed document and medical or other evidence is not required to enliven the jurisdiction of the Tribunal. [The practitioner's brother 1] was the siblings' principal contact person for the Tribunal's officers involved in the Application.
8.In order to determine whether [the second applicant] was in need of an administrator and/or a guardian, the Tribunal was required, under the GAA, to take steps to satisfy itself as to whether or not [the second applicant] was a person capable of making reasonable judgments about her estate and/or her person.
9.When the practitioner and her brothers made the Application they disclosed that they did not have any medical evidence in relation to whether [the second applicant] had a mental disability.
10.The practitioner allowed the Application to be lodged in the Tribunal in the manner in which it had been prepared by the practitioner and her brothers, as a result of which the Application contained statements or assertions of belief or opinion about [the first applicant], whom the practitioner and her brothers did not name in the Application, referring to him as their ''uncle", but who could be identified by the Tribunal as a result of the reference, in the Application, to the Tribunal's file in respect of the late [second applicant's husband], which were unnecessarily contentious, provocative and intemperate.        The statements or assertions were:
(a)"We have been prevented from seeing our grandmother. My uncle has also changed [the second applicant's] telephone number";
(b)"There are ongoing legal disputes between my uncle and my father's estate. This prevents him from any objective capability of being guardian for my grandmother or administering her affairs";
(c)"He wants control of my grandmother as he did with my grandfather which resulted in the Public Advocate being appointed";
(d)"He has poisoned her mind against us and we have been left on the outer. This is especially so since our grandfather's death";
(e)"Our uncle exerts undue influence over her and restricts any contact"; and
(f)"All calls, visits are screened by our uncle. We tried many times to resolve this while our father and grandfather were alive. However, since their deaths, things have become harder and harder".
11.The Application also contained the statement or assertion, by ticking a box, that the Application was "urgent". The purpose of this part of the Application was to assist the Tribunal to determine whether interim orders should be made under the GAA's emergency provision.
12.On·22 June 2016 a member of the Tribunal, without further communicating with the practitioner and/or her brothers or seeking further evidence, including medical reports or an assessment, being satisfied that:
(a)[The second applicant] may be a person to [sic] whom a declaration should be made pursuant to s.64(1) of the GAA [that, by reason of a mental disability [the second applicant] is unable to make reasonable judgments in respect of matters relating to her estate and is in need of an administrator of her estate]; and
(b)it was necessary to make immediate provision for the protection of her estate,
pending determination of the question whether [the second applicant] was, in fact, a person in respect of whom a declaration should be made pursuant to s.64(1) of the GAA ordered, amongst other things, that pursuant to s.65 of the GAA [the GAA's emergency provision] the Public Trustee is authorised to exercise the functions of a plenary administrator to protect and secure the estate of [the second applicant] (interim orders).
13.The practitioner and her brothers had not sought, and did not expect, the Tribunal to make the interim orders.
14.As a result of the interim orders the Public Trustee assumed control of [the second applicant's] financial affairs and, amongst other things, arranged for the Office of the Public Advocate to visit [the second applicant] and discuss her affairs with her.
15.The Application was listed for a hearing on 19 August 2016 and the Tribunal gave notice of the hearing to [the second applicant] by personal service in accordance with the provisions of the GAA.
16.In around early August 2016 [the first applicant] engaged solicitors, Bowen Buchbinder Vilenski (BBV), to represent     [the second applicant] in her response to the Application.
17.[The second applicant] was reviewed by a consultant psychiatrist, Dr DF, on 4 August 2016. Dr DF prepared a report in relation to [the second applicant's] capacity to make reasonable judgments about her estate and/or her person.       The report was filed in the Application.
18.Also filed in the Application was a medical report entitled "Doctor's Guide" completed by Dr JC on 23 June 2016 in which he certified, amongst other things, that:
(a)he had been [the second applicant's] treating general practitioner over the previous 20 years;
(b)[The second applicant] did not have any impairment of her cognitive ability or mental function;
(c)[The second applicant] had capacity to make reasonable decisions in relation to her personal health care, living situation and financial affairs, noting that she "manages her own banking" and "makes her own decisions about all her grocery and household requirements";
(d)[The second applicant] was independently mobile;
(e)[The second applicant] spoke only Italian; and
(f)in his opinion, attending the hearing at the Tribunal would be detrimental for [the second applicant's] health and not in her best interests because "patient gets very upset and emotional about the process because of the disharmony in the family dynamics".
19.In or around early August 2016 the practitioner and her brother, [1], were granted leave by the Tribunal to inspect certain documents, including medical evidence, filed in the Application. They inspected the documents and also spoke to officers appointed by the Tribunal to report on [the second applicant's] welfare.
20.On 12 August 2016 the practitioner allowed to be sent to the Tribunal the Letter in the manner in which the practitioner and her brothers had prepared it, by which the practitioner sought leave from the Tribunal, on behalf of herself and her brothers, to withdraw the Application. In the Letter the practitioner gave as her and her brothers' reasons for withdrawing the Application:
"The independent parties appointed by [the Tribunal] have informed us that they are satisfied that our grandmother has capacity and that she is currently doing well. We have also reviewed the file and associated medical documents and are also satisfied that our grandmother is in control of her pension funds and is able to care of (sic) herself with the necessary assistance which we understand she is receiving."
21.The Letter contained statements and assertions including, for example:
(a)[the first applicant] had issued "various threats" to the practitioner and her brothers over the years if they visited or made contact with their grandparents;
(b)[the first applicant] "has spun a number of lies to our grandparents, especially our grandmother, in relation to us which has essentially poisoned her against us";
(c)visiting her grandparents "would be met with a tirade of abuse from [the first applicant]";
(d)"[the first applicant] has always had a volatile temper and I did not wish to be on the receiving end of any outburst'';
(e)that [the first applicant's] conduct ''has directly prevented us from continuing our relationship with our grandmother";
(f)the practitioner and her brothers were "concerned that if [the first applicant] is in a position where he is permitted to act as our grandmother's guardian or attorney, he will only act to further his own agenda and personal interests which we fear will not be in our grandmother's best interests"; and
(g)"This especially so given [the first applicant] is a man of means with exceptionally large superannuation deposits (he and his wife having recently received access to almost $2M to my knowledge) so there is absolutely no need to be using any of our grandmother's assets for his own use",
which in circumstances where the purpose of the Letter was to withdraw the Application, were irrelevant, contentious, provocative and intemperate; and, in the case of the statement in (g), contained personal and sensitive information about [the first applicant's] financial affairs.
22.The Letter also contained the statement or assertion that the practitioner and her brothers "may make an application in the future should the current circumstances regarding her wellbeing change", which was unnecessary.
23.On 15 August 2016 the Tribunal granted the practitioner and her brothers leave to withdraw the Application and ordered the Application withdrawn.
24.For the above reasons, the Committee was satisfied that there was a reasonable likelihood that the practitioner would be found guilty by the Tribunal of unsatisfactory professional conduct on the basis of the Ground of Unsatisfactory Professional Conduct which was before the meeting (Ground). A copy of the Ground is enclosed.
25.The Committee considered the practitioner's submission that if the Committee were to order a reprimand, there were special circumstances justifying the imposition of a private reprimand. The Committee noted the private and confidential nature of the proceedings before the Tribunal from which [the first applicant's] complaint arose and the context of the wider and deeply personal dispute involving members of the … family and considered that those circumstances constituted special circumstances.
26.The Committee noted that this matter proceeded on a "fast track" basis for summary conclusion in matters where a practitioner has demonstrated significant insight and acceptance of the facts relied upon by the Committee.
27.The Committee noted that the practitioner had been responsive to the regulatory process, had adopted, as her response, the Committee's statement of facts and the Ground and had demonstrated significant insight and remorse in respect of her conduct.
28.The Committee noted the practitioner's good disciplinary history, her insight and remorse and the manner in which she had engaged with the Committee. The Committee also noted that throughout the conciliation of [the first applicant's] complaint the practitioner had agreed to establish a protocol acceptable to [the second applicant] for the ongoing exchange of information between members of the family regarding [the second applicant's] health and wellbeing and that she had offered an apology to [the first applicant] in terms acceptable to the Committee (which [the first applicant] did not accept).
29.The Committee considered that in light of the seriousness of the practitioner's conduct the appropriate penalty was a reprimand and, as there were special circumstances, ordered that the practitioner be privately reprimanded.
30.The Committee considered [the first applicant's] submissions seeking a compensation order, noted that [the first applicant] was an aggrieved person who had suffered loss because of the practitioner's conduct, being the sums that he had contributed towards [the second applicant's] expenses (including legal costs) attributable to assisting her with her response to the Application, and ordered the practitioner to pay to [the first applicant] monetary compensation in the sum of $4,790 for the losses supported by documentary evidence, as set out in the following table:

Item and supporting documents

Amount ($)

Bowen Buchbinder Vilenski (BBV) legal fees: Email from Les Buchbinder to [the first applicant] dated 25 July 2016 (scope of work), costs agreement dated 3 August 2016, BBV tax invoice 18479 dated 29 July 2016 and receipt for the sum of $2,640 dated 11 August 2016

2,640.00

Italian TI Services Booking Confirmation dated 1 July 2016 and tax invoice/receipt 074 dated 15 July 2016 and Westpac Payment Summary dated 17 July 2016

170.00

Dr DF tax invoice/receipt dated 8 August 2016 addressed to [the first applicant]

1,980.00

Total

4,790.00

31.The Committee had asked the practitioner whether there was any reason why her submissions on penalty and compensation should not be forwarded on to [the first applicant]. The practitioner responded that there were exceptional reasons why this should not occur. Those reasons included that her submissions contained personal, including medical, information that she did not wish to be disclosed to [the first applicant]. The practitioner also expressed concern that information contained in her submissions might be disclosed by [the first applicant] or misused in litigation that [the first applicant] is pursuing against her and her family.
32.The Committee also noted that [the first applicant's] position with respect to his submissions was that he did not wish to have his submissions disclosed to the practitioner unless the practitioner was prepared to disclose her submissions to him.
33.The Committee noted that the complaint arose in the context of a deeply personal family dispute which includes a history of litigation between [the first applicant], on the one hand, and members of the practitioner's family, on the other hand, and that proceedings between the two branches of the … family are currently on foot. The Committee considered that in circumstances where there are ongoing proceedings involving the practitioner and [the first applicant] there was a risk that confidential information might be inadvertently disclosed in those proceedings.
34.The Committee also noted that the practitioner's submissions contain personal, including medical, information about the practitioner and personal information about members of her family.
35.The Committee considered that in all the circumstances it was appropriate that the practitioner's submissions remain confidential and not be disclosed to [the first applicant].
36.The Committee also considered that in circumstances where it had determined that the practitioner's submissions would remain confidential, in light of [the first applicant's] request that his submissions not be provided to the practitioner unless she was prepared to provide her submissions to him, there was no requirement for [the first applicant's] submissions to be disclosed to the practitioner.

This now concludes the matter.
Yours faithfully
(MS JL WAKELY )
Legal Officer

Committee's decision regarding the second complaint

The Committee's decision in relation to the second complaint and its reasons for that decision, as stated in its letter to the second applicant dated 1 June 2018, are as follows:[12]
[12] Legal Profession Complaints Committee s 24 Bundle of Documents dated 17 October 2018 pages 75-83 (original emphasis).
Dear [second applicant]
COMPLAINT:     [THE PRACTITIONER]
At a recent meeting, in the exercise of its summary conclusion powers under s.426 of the Legal Profession Act 2008 (WA) (Act), with the practitioner's consent:
1.The Committee was satisfied that the practitioner is generally competent and diligent and that the taking of action under s.426 of the Act is justified.
2.In the exercise of its summary conclusion powers under s.426 of the Act, the Committee was satisfied that there is a reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal (Tribunal) of between June 2016 and August 2016, in the course of preparing, with her brothers, and allowing to be lodged on 7 June 2016 in the Tribunal, on behalf of herself and her brothers, application GAA [No.] (Application) under the Guardianship and Administration Act 1990 (WA) (GAA) seeking orders in relation to you, for the appointment of the Public Trustee as your administrator and the Public Advocate as your guardian, engaging in unsatisfactory professional conduct, within the meaning of ss.402 and 438 of the Act, in that her conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner, in that, at the time the practitioner allowed the Application to be lodged in the Tribunal, she failed to give adequate care and attention to the manner in which the Application had been prepared, as a result of which the Application:
2.1contained unqualified statements or assertions that you had "Dementia" and "Dementia affects day to day reasoning and impairs our grandmother's ability to make decisions" without the practitioner having any reasonable basis for making those assertions (including no supporting medical evidence); and
2.2contained the statements or assertions that the Application was "urgent" and "Care required and uncle trying to represent her on financial matters'' without the practitioner having any reasonable basis for making those assertions and without any due consideration as to the consequences that might flow in terms of orders that the Tribunal might make.
3.The Committee accepted the practitioner's submissions that there existed special circumstances justifying orders for a private reprimand rather than a public reprimand and ordered that the practitioner be privately reprimanded pursuant to s.426(2)(a) of the Act.
4.The Committee ordered that the practitioner pay to you compensation in the sum of $9,991.26 pursuant to s.426(2)(c) and s.448(2)(c) of the Act.
5.The Committee accepted that there existed exceptional circumstances justifying the non-disclosure to you of the practitioner's submissions to the Committee and the             non-disclosure to the practitioner of your submissions to the Committee and resolved that:
(a)the practitioner's submissions to the Committee would not be disclosed to you; and
(b)your submissions to the Committee would not be disclosed to the practitioner.
A statement of the Committee's reasons for decision is as follows:
1.[The second applicant] was born on 17 May 1930. At all material times she was 86 years of age. She is the practitioner's grandmother.
2.On 7 June 2016 the practitioner lodged the Application in the Tribunal under s.40 of the GAA seeking orders for the appointment of the Public Trustee as [the second applicant's] administrator and the Public Advocate as [the second applicant's] guardian. The practitioner lodged the Application on behalf of herself and her brothers, [1] and [2], as a member of [the second applicant's] family and did not refer to herself, in the Application, as a "lawyer" or seek to use her professional position to advance the Application.
3.The decision by the practitioner and her brothers to lodge the Application was prompted by 2 events that, amongst other things, caused them to be concerned about [the second applicant's] welfare:
(a)on about 22 January 2016 [the first applicant], the practitioner's uncle and [the second applicant's] son, lodged a minor case claim in the Magistrates Court of Western Australia (Magistrates Court) stating, amongst other things, that he did so "AS EPA FOR [THE SECOND APPLICANT]"; and
(b)on 2 June 2016 [the first applicant] sent an email to the Supreme Court of Western Australia (Supreme Court) in which he stated, amongst other things:
"We are/were in a desperate position with no funds to pay bills legal fees and live and relying on my 85 year old mother for living support assistance from her pension."
4.As a result of the dispute (dispute) between the practitioner's father, the late [name] (deceased), and his brother, [the first applicant], which arose in about 2011 there was, at the material time, conflict between [the first applicant], on the one hand, and the family of the deceased, on the other hand.
5.The dispute related to the many companies and trusts the deceased and [the first applicant] had established from about 1976 and concerned their rights to control those companies and trusts and the benefit of the assets held by the companies and the assets which formed part of the trust property of the trusts. As at 2016 there had been more than 20 court actions, in the Magistrates Court, the District Court of Western Australia and the Supreme Court, arising out of the dispute. There had also been 3 applications lodged in the Tribunal in 2014 by, respectively, [the first applicant], [the first applicant] and [the second applicant] (as joint applicants), and the deceased in relation to the late [name] ([the second applicant's] husband, the deceased's and [the first applicant's] father, and the practitioner's and her brothers' grandfather).
6.As a consequence of the dispute, the practitioner and her brothers had not been in regular contact with [the second applicant].
7.Prior to the practitioner lodging the Application, [the practitioner's brother 1] contacted the Tribunal, informed an officer of the Tribunal that he and his siblings were concerned about [the second applicant's] welfare and requested advice about what options were available if it was found that [the second applicant] was not capable of making reasonable judgments about her estate and/or her person. [The practitioner's brother 1] also informed the Tribunal's officer that he and his siblings did not wish to cause [the second applicant] any unnecessary stress. He was informed that if he and his siblings had concerns about [the second applicant's] welfare an application under s.40 of the GAA should be made. When [the practitioner's brother 1] enquired what information was required to support the application, he was informed by the officer of the Tribunal that once the application had been lodged, the Tribunal would contact him to discuss what further information would be required (if any). [The practitioner's brother 1] communicated to the practitioner and his brother the content of his discussions with the Tribunal's officer and the siblings decided to lodge the Application, in accordance with the advice that [the practitioner's brother 1] had received from the Tribunal.
8.The practitioner and her brothers prepared the Application and the practitioner allowed it to be lodged in the Tribunal in circumstances where the application process is informal, the application form itself is not a formal or detailed document and medical or other evidence is not required to enliven the jurisdiction of the Tribunal. [The practitioner's brother 1] was the siblings' principal contact person for the Tribunal's officers involved in the Application.
9.In order to determine whether [the second applicant] was in need of an administrator and/or a guardian, the Tribunal was required, under the GAA, to take steps to satisfy itself as to whether or not [the second applicant] was a person capable of making reasonable judgments about her estate and/or her person.
10.When the practitioner and her brothers made the Application they disclosed that they did not have any medical evidence in relation to whether [the second applicant] had a mental disability.
11.However, as a result of the practitioner's failure, at the time she allowed the Application to be lodged in the Tribunal, to give adequate care and attention to the manner in which the Application had been prepared, the document contained statements or assertions that [the second applicant] had "Dementia" and "Dementia affects day to day reasoning and impairs our grandmother's ability to make decisions" without the practitioner having any reasonable basis for making those assertions (including no supporting medical evidence).
12.It was unnecessary for the practitioner and her brothers to make the statements or assertions that [the second applicant] had "Dementia" and "Dementia affects day to day reasoning and impairs our grandmother's ability to make decisions" as the basis for the Application because they could have made the Application in a manner that informed the Tribunal of the precise evidence that was the basis of their concerns about whether [the second applicant] was able to make reasonable judgments in respect of matters relating to her estate and/or her person without asserting a specific medical condition.
13.In addition, as a result of the practitioner's failure, at the time she allowed the Application to be lodged in the Tribunal, to give adequate care and attention to the manner in which the Application had been prepared, the Application contained the statement or assertion, by ticking a box, that the Application was "urgent'' and stated or asserted that the reason it was urgent was ''Care required and uncle trying to represent her on financial matters" without the practitioner having any reasonable basis for making those assertions and without any due consideration as to the consequences that might flow in terms of orders that the Tribunal might make on an interim basis. The purpose of this part of the Application was to assist the Tribunal to determine whether interim orders should be made under the GAA's emergency provision.
14.On 22 June 2016 a member of the Tribunal, without further communicating with the practitioner and/or her brothers or seeking further evidence, including medical reports or an assessment, being satisfied that:
(a)[the second applicant] may be a person to [sic] whom a declaration should be made pursuant to s.64(1) of the GAA [that, by reason of a mental disability [the second applicant] is unable to make reasonable judgments in respect of matters relating to her estate and is in need of an administrator of her estate]; and
(b)it was necessary to make immediate provision for the protection of her estate,
pending determination of the question whether [the second applicant] was, in fact, a person in respect of whom a declaration should be made pursuant to s.64(1) of the GAA ordered, amongst other things, that pursuant to s.65 of the GAA [the GAA's emergency provision] the Public Trustee is authorised to exercise the functions of a plenary administrator to protect and secure the estate of [the second applicant] (interim orders).
15.The practitioner and her brothers had not sought, and did not expect, the Tribunal to make the interim orders.
16.As a result of the interim orders the Public Trustee assumed control of [the second applicant's] financial affairs and, amongst other things, arranged for the Office of the Public Advocate to visit [the second applicant] and discuss her affairs with her.
17.The Application was listed for hearing on 19 August 2016 and the Tribunal gave notice of the hearing to [the second applicant] by personal service in accordance with the provisions of the GAA.
18.In around early August 2016 [the first applicant] engaged solicitors, Bowen Buchbinder Vilenski (BBV), to represent     [the second applicant] in her response to the Application.
19.[The second applicant] was reviewed by a consultant psychiatrist, Dr DF, on 4 August 2016. Dr DF prepared a report in relation to [the second applicant's] capacity to make reasonable judgments about her estate and/or her person.        The report was filed in the Application.
20.Also filed in the Application was a medical report entitled "Doctor's Guide" completed by Dr JC on 23 June 2016 in which he certified, amongst other things, that
(a)he had been [the second applicant's] treating general practitioner over the previous 20 years;
(b)[the second applicant] did not have any impairment of her cognitive ability or mental function;
(c)[the second applicant] had capacity to make reasonable decisions in relation to her personal health care, living situation and financial affairs, noting that she "manages her own banking" and "makes her own decisions about all her grocery and household requirements";
(d)[the second applicant] was independently mobile;
(e)[the second applicant] spoke only Italian; and
(f)in his opinion, attending the hearing at the Tribunal would be detrimental for [the second applicant's] health and not in her best interests because ''patient gets very upset and emotional about the process because of the disharmony in the family dynamics".
21.In or around early August 2016 the practitioner and her brother, [1], were granted leave by the Tribunal to inspect certain documents, including medical evidence, filed in the Application. They inspected the documents and also spoke to officers appointed by the Tribunal to report on [the second applicant's] welfare.
22.By letter dated 12 August 2016 (Letter) the practitioner sought leave from the Tribunal, on behalf of herself and her brothers, to withdraw the Application. In the Letter the practitioner gave as her and her brothers' reasons for withdrawing the Application:
"The independent parties appointed by [the Tribunal] have informed us that they are satisfied that our grandmother has capacity and that she is currently doing well. We have also reviewed the file and associated medical documents and are also satisfied that our grandmother is in control of her pension funds and is able to care of (sic) herself with the necessary assistance which we understand she is receiving."
23.The Letter also contained the statement or assertion that the practitioner and her brothers "may make an application in the future should the current circumstances regarding her wellbeing change", which was unnecessary.
24.On 15 August 2016 the Tribunal granted the practitioner and her brothers leave to withdraw the Application and ordered the Application withdrawn.
25.For the above reasons, the Committee was satisfied that there was a reasonable likelihood that the practitioner would be found guilty by the Tribunal of unsatisfactory professional conduct on the basis of the Ground of Unsatisfactory Conduct which was before the meeting (Ground). A copy of the Ground is enclosed.
26.The Committee considered the practitioner's submission that if the Committee were to order a reprimand, there were special circumstances justifying the imposition of a private reprimand. The Committee noted the private and confidential nature of the proceedings before the Tribunal from which [the second applicant's] complaint arose and the context of the wider, and deeply personal, dispute involving members of the … family and considered that those circumstances constituted special circumstances.
27.The Committee noted that this matter proceeded on a "fast track" basis for summary conclusion in matters where a practitioner has demonstrated significant insight and acceptance of the facts relied upon by the Committee.
28.The Committee noted that the practitioner had been responsive to the regulatory process, had adopted, as her response, the Committee's statement of facts and the Ground and had demonstrated significant insight and remorse in respect of her conduct.
29.The Committee noted the practitioner's good disciplinary history, her insight and remorse and the manner in which she had engaged with the Committee. The Committee also noted that throughout the conciliation of [the second applicant's] complaint she had agreed to establish a protocol acceptable to [the second applicant] for the ongoing exchange of information between members of the family regarding [the second applicant's] health and wellbeing; that she had offered an apology to [the second applicant] in terms acceptable to the Committee, that she (and her brothers) had offered compensation in the sum of $10,000 to [the second applicant] for her loss suffered because of the conduct (offer) and that     [the second applicant] had not accepted the apology or the offer.
30.The Committee considered that in light of the seriousness of the practitioner's conduct the appropriate penalty was a reprimand and, as there were special circumstances, ordered that the practitioner be privately reprimanded.
31.The Committee considered [the first applicant's] submissions on behalf of [the second applicant] seeking a compensation order, noted that [the second applicant] was an aggrieved person who had suffered loss because of the practitioner's conduct and ordered the practitioner to pay to [the second applicant] monetary compensation in the sum of $9,991.26 for expenses (including legal costs) attributable to the Tribunal's orders of     22 June 2016 and responding to the Application which were supported by documentary evidence, as set out in the following table:

Item and supporting documents

Amount ($) (Sub-total)

Amount ($)

BBV legal fees: Email from BBV to [first applicant] dated 5 August 2016 (scope of work), BBV costs agreement dated 11 August 2016, BBV tax invoice 18591 dated 22 September 2016, trust account cheques in the sum of $5,280 to [second applicant], and BBV trust account statement dated 23 September 2016

7,920

Public Trustee - Statement of Transactions from 22/06/16 to 15/08/16:

27/06/16 - Landgate search fee

04/07/16 - Landgate caveat fees

15/08/16 - PT search fee

15/08/16 - Preparation of caveat

24.60

165.80

34.00

218.00

442.40

Public Trustee - Statement of Transactions from 15/08 to 27/09/16:……..

00/08/16 - Landgate search fee

07/09/16 - Landgate W/C fee

27/09/16 - Interest (net)

27/09/16 - Withdrawal of caveat

27/09/16 - Asset management fee

27/09/16 - Public Trustee search fee

24.85

165.80

2.57

277.00

133.74

34.90

638.86

Dr DF tax invoice/receipt dated 4 August 2016 addressed to [second applicant]

990

Total

9,991.26

32.The Committee had asked the practitioner whether there was any reason why her submissions on penalty and compensation should not be forwarded on to [the second applicant]. The practitioner responded that there were exceptional reasons why this should not occur. Those reasons included that her submissions contained personal, including medical, information that she did not wish to be disclosed to [the second applicant]. The practitioner also expressed concern that information contained in her submissions might be disclosed by [the first applicant] or misused in litigation that [the first applicant] is pursuing against her and her family.
33.The Committee also noted that [the second applicant's] position with respect to her submissions was that she did not wish to have her submissions disclosed to the practitioner unless the practitioner was prepared to disclose her submissions to [the second applicant].
34.The Committee noted that the complaint arose in the context of a deeply personal family dispute which includes a history of litigation between [the first applicant], on the one hand, and members of the practitioner's family, on the other hand, and that proceedings between the two branches of the … family are currently on foot. The Committee considered that in circumstances where there are ongoing proceedings involving the practitioner and [the first applicant] there was a risk that confidential information might be inadvertently disclosed in those proceedings.
35.The Committee also noted that the practitioner's submissions contain personal, including medical, information about the practitioner and personal information about members of her family.
36.The Committee considered that in all the circumstances it was appropriate that the practitioner's submissions remain confidential and not be disclosed to [the second applicant].
37.The Committee also considered that in circumstances where it had determined that the practitioner's submissions would remain confidential, in light of [the second applicant's] request that her submissions not be provided to the practitioner unless the practitioner was prepared to provide her submissions to [the second applicant], there was no requirement for [the second applicant's] submissions to be disclosed to the practitioner.

This now concludes the matter.
Yours faithfully
(MS) J L WAKELY
Legal Officer

Committee's decision regarding the third complaint

The Committee's decision in relation to the third complaint and its reasons for that decision, as set out in its letters to the first applicant and the second applicant dated 21 December 2018, are as follows:[13]
Dear [applicants],
COMPLAINT: [THE PRACTITIONER] (COMPENSATION ORDERS)
This matter was considered by the Committee at a recent meeting.
After careful consideration of the matter the Committee:
1.resolved to dismiss the complaint because it was satisfied that there is no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct; and
2.specifically found the complaint to be unreasonable.
[13] Legal Profession Complaints Committee s 24 Bundle of Documents dated 25 February 2019 pages 1-5 (original emphasis).
Reasons
A statement of the Committee's reasons for its decision is as follows:
1.This matter was before the Committee to consider a complaint on 14 June 2018 by [the first applicant] on behalf of himself and [the second applicant] that despite demands, the practitioner failed or refused to make payment of compensation orders made by the Committee and notified on 1 June 2018.
2.At its meeting in May 2018 the Committee considered complaints made by [the applicants] relating to an application lodged by the practitioner on 7 June 2016 (Application) in the State Administrative Tribunal (SAT) on behalf of herself and her two brothers, [1] and [2], seeking orders for the appointment of the Public Trustee as [the second applicant's] administrator and the Public Advocate as her guardian and, also, a letter the practitioner sent to SAT on 12 August 2016, on behalf of herself and her brothers, seeking leave to withdraw the Application.
3.The Committee was satisfied that there was a reasonable likelihood that the practitioner would be found guilty by SAT of unsatisfactory professional conduct and exercised summary conclusion powers under section 426 of the Legal Profession Act 2008 (WA), ordering a private reprimand and that the practitioner pay compensation to [the first applicant] in the sum of $4,790 and to [the second applicant] in the sum of $9,991.26 (compensation orders).
4.The compensation orders did not specify a time for payment. Compensation orders previously made by the Committee have not specified a time for payment and the Committee noted that in the past compensation orders had been made in the expectation that the parties would act reasonably.
5.The practitioner and [the first applicant] were notified of the Committee's orders by letters dated 1 June 2018. [The second applicant], who speaks only Italian and is unable to communicate in English, was also notified by letter dated 1 June 2018 care of [the first applicant] and was later, on 18 June 2018, sent a letter care of [the first applicant] in the same terms translated into Italian.
6.On Sunday 10 June 2018 [the first applicant] sent an email to the Committee stating that he had written to the practitioner demanding that she pay the compensation ordered by close of business on Friday, 8 June 2018 and no payment had been received.
7.The practitioner says that she always intended to pay the compensation orders, was on holidays when she was notified of the orders, at a location that had only intermittent internet access, returned to Perth on 6 June 2018 and was back at work on 7 June 2018, when she began to make arrangements to be in a position to pay the compensation orders. She also says that she did not receive [the first applicant's] letter of demand.
8.On 13 June 2018 the practitioner advised the Committee that she assumed the compensation orders would have to be paid within a reasonable time and she would require time to collate the funds necessary to pay the compensation orders. She believed she would be in a position to do so within 4 weeks, and requested [the first applicant's] and [the second applicant's] bank account details so that she could transfer the money to their accounts.
9.The Committee communicated those matters to [the first applicant] that day, stating that the Committee was willing to pass on to the practitioner the requested bank account details and a response to the practitioner's request in respect of the time for payment of the compensation orders.
10.[The first applicant] responded by email that day, stating that bank account details would not be provided and he and [the second applicant] required bank cheques by 3pm on Friday, 15 June 2018 failing which proceedings would be commenced in the Magistrates Court on Monday, 18 June 2018.
11.The Committee communicated [the first applicant's] position to the practitioner by letter dated 14 June 2018, with a request that she communicate directly with [the first applicant] as the payment of the compensation orders was a civil matter between her and [the first applicant] and [the second applicant]. On the same day [the first applicant] was advised that copies of his email communications had been provided to the practitioner and he, too, was requested to communicate directly with the practitioner in relation to the payment of the compensation orders.
12.[The first applicant] lodged the complaint on 14 June 2018. The complaint was described in the following terms:"... on the 1 June 2018 [the practitioner] was ordered by the LPBCC [sic] to make payments to [the first applicant] and [the second applicant]. Despite demands she has failed or refused to make the payments which are due on demand".
13.On 20 June 2018 the practitioner informed the Committee that she was sending cheques made payable to [the first applicant] and [the second applicant] in payment of the compensation orders by registered post that day. [The first applicant] was advised of this by letter dated 21 June 2018.
14.By email on 22 June 2018 [the first applicant] informed the Committee that he intended to commence enforcement proceedings against the practitioner and attached copies of completed Magistrates Court enforcement documents. It is not known whether those proceedings were issued.
15.On 29 June 2018 the practitioner provided by email to the Committee copies of cheques drawn on 20 June 2018 in favour of [the first applicant] for $4,790 and [the second applicant] for $9,991.26 (cheques) together with registered post envelopes addressed to [the first applicant] at his residential address and [the second applicant] at her residential address.
16.On 3 July 2018 the practitioner notified the Committee that both cheques were collected on 2 July 2018 but had not yet been presented. Attached to her email was an Australia Post tracking document which confirmed the delivery of both cheques on 2 July 2018.
17.It is not entirely clear what did happen with the posting of the cheques, but the available evidence suggests that the cheque to [the first applicant] was posted on 21 June 2018 and the cheque to [the second applicant] was not posted until 28 June 2018. Apparently, the practitioner gave the cheques to her brother [1] for him or his staff to post on 20 June 2018 and it seems the two cheques were not posted at the same time. It is of some concern to the Committee that the practitioner did not take greater care to ensure that the cheques were sent by registered post on the day that she told the Committee they were being sent (which was relayed to [the first applicant]) and having decided to give it to her brother to organise, did not take more specific steps to follow up with him to confirm posting of the cheques.
18.In any event the cheques were received by 2 July 2018 which was confirmed in an email on 3 July 2018 by [the first applicant] in which he notified the Committee that upon receiving his cheque he had collected [the second applicant's] cheque and posted both cheques back to the practitioner "with a notation that cleared funds were required".
19.By email on 26 September 2018 the practitioner notified the Committee that on 11 September 2018 her solicitor had attended a directions hearing at the State Administrative Tribunal that was also attended by [the first applicant] and in the course of the attendance her solicitor provided to [the first applicant] a bank cheque in the sum of $4,790 in payment of the compensation order in his favour.
20.By email on 16 October 2018 the practitioner notified the Committee that she had sent another cheque to [the second applicant]. Attached to her email was a copy of a cheque dated 15 October 2018 drawn in favour of [the second applicant] for the sum of $9,991.26 together with an Australia Post registered post receipt and a tracking document which showed that the envelope was delivered to [the second applicant] on 17 October 2018.
21.By email on 19 October 2018 [the first applicant] notified the Committee that he had sent the cheque made in favour of [the second applicant] back to the practitioner because it was not a bank cheque.
22.By email on 10 December 2018 the practitioner notified the Committee that she had sent by courier that day to [the second applicant] a bank cheque in the sum of $9,991.26 and the cheque was received by [the second applicant] personally from the courier. [The first applicant] acknowledged this in an email to the Committee of 10 December 2018.
23.The Committee considered that non-payment or delay in payment of compensation orders does not, of itself, amount to unsatisfactory professional conduct or professional misconduct. Relevant factors include whether the practitioner has the ability to pay and whether the practitioner is deliberately refusing to pay or delaying payments unreasonably.
24.The Committee noted that the practitioner had initially requested time to pay until mid-July 2018 and had also requested [the first applicant's] and [the second applicant's] bank details to facilitate the transfer of the payments directly into their bank accounts, and that those requests were rejected by [the first applicant]. Thereafter, on 20 June 2018, the practitioner prepared cheques and arranged for them to be sent to [the first applicant] and [the second applicant] at their residential addresses by registered post.
25.The Committee also noted that on 3 July 2018 [the first applicant] confirmed to the Committee that on 2 July 2018 he had collected his cheque and [the second applicant's] cheque and had posted them back to the practitioner on the basis that he had demanded "cleared funds", or bank cheques.
26.The compensation orders did not specify the method of payment and, ordinarily, there is no reason why payment should not be made by a personal cheque, rather than a bank cheque. If the cheque was not honoured, that of course would lead to different considerations, but there is no evidence that that was likely to occur here. The Committee therefore did not consider it to be unsatisfactory professional conduct or professional misconduct that the practitioner did not initially pay by the method of payment stipulated by [the first applicant] (bank cheques). The Committee considered that it therefore follows that for the purposes of dealing with issues of unsatisfactory professional conduct and professional misconduct, the practitioner can be taken to have attempted to pay the compensation orders and the only reason why they had not been paid as at 2 July 2018, when the cheques were received, was due to [the first applicant's] own conduct, which the Committee considered to be unreasonable. The Committee considered that, in the circumstances, the time period involved in a payment by 2 July 2018 would not amount to unsatisfactory professional conduct or professional misconduct.
27.The Committee also considered [the first applicant's] contention that the compensation orders were payable on demand, and noted that this appeared to import notions of contract law. The Committee considered that even if [the first applicant] was correct (which the Committee did not accept), the fact that the payment was not made within the time-frames demanded by [the first applicant] did not of itself inform as to whether there was unsatisfactory professional conduct or professional misconduct and it was the Committee's view that in all the circumstances the practitioner's failure to meet [the first applicant's] demanded deadlines did not amount to unsatisfactory professional conduct or professional misconduct.
28.For the above reasons the Committee dismissed the complaint and, in doing so, specifically found the complaint to be unreasonable.
Yours faithfully
(MR) N D POPE
Senior Legal Officer
Manager Investigations

GA application and GA withdrawal letter

The GA application is reproduced (with redactions in accordance with the non-publication orders referred to at [12] above) at Attachment A to these reasons.[14]
[14] Legal Profession Complaints Committee s 24 Bundle of Documents dated 17 October 2018 pages 108-117.
The GA withdrawal letter states as follows:[15]
[15] Legal Profession Complaints Committee s 24 Bundle of Documents dated 17 October 2018 pages 133-135.
12 August 2016
State Administrative Tribunal
Level 6
565 Hay Street
PERTH WA 6000
LETTER IN RESPECT OF THE APPLICATION FOR GUARDIANSHIP AND ADMINISTRATION ORDER FOR [THE SECOND APPLICANT]
GAA [No.]
To whom it may concern
This letter is being provided to SAT by me, [the practitioner], on my own behalf and on behalf of both of my brothers, [brother 1] and [brother 2].
My brothers and I (we) have long held concerns over the continued wellbeing of our grandmother, [the second applicant].
By way of background, our late father and his brother [the first applicant] (our uncle) were involved in an increasingly acrimonious dispute from late 2011 until my father's death in March 2015. It was since this dispute arose that [the first applicant] has continually sought to disrupt and harm our relationship with our grandparents, to the extent that he conveyed to our family on several occasions that none of us were permitted to visit or contact my grandparents without his prior approval.
My brothers and I always had a very good relationship with our grandparents. We have very fond memories, both recent and past, of spending time with them. We visited often, which at the time the dispute arose was about four times per week between us, sometimes more. Our visits were always met with smiles and often food and neither of us were ever turned away. They were also frequent visitors to our homes. It was only following the dispute that we became caught in the middle which impeded us continuing our relationship in the same way. Our late father was also a constant visitor and gave them both all the support he could.
We have always valued the time we spent with our grandparents and we have been extremely disappointed and saddened at the circumstances that eventuated especially in relation to my uncle issuing various threats to us over the years about if we visited or made contact with them. We have no reason to believe that [the first applicant] has authority to deny us such access, however our concerns were that if we did visit and he is present, he could become aggressive. We also believe that since the dispute arose in late 2011, he has spun a number of lies to our grandparents, especially our grandmother, in relation to us which has essentially poisoned her against us and made it difficult for us to speak with her without making her upset.
It then became increasingly difficult for any of us to visit to the extent that when a guardianship order was granted for our grandfather, [name], this resulted in regular visits to him for us all. At the time, [the first applicant] constantly sent faxes and letters stating that we were killing our grandfather and we were not to visit him and that he didn't want to see us. However, he was happy to see us when we visited. It also bought [sic] me to tears to see how much time we had lost spending together. Further an independent psych report also showed the opposite, that he was grateful to see us and wanted us to continue despite what [the first applicant] appeared to be saying on his behalf.
I became pregnant around the time the dispute arose and it saddened me that I couldn’t share the joy of my news with my grandparents as I knew that they would have been very happy for me but visiting them would be met with a tirade of abuse from [the first applicant]. I personally became afraid of visiting my grandparents at their home due to the possibility that [the first applicant] might arrive and become abusive and/or aggressive towards me. [The first applicant] has always had a volatile temper and I did not wish to be on the receiving end of any outburst, especially given I was pregnant.
Given our grandmother's age and that we have no intention of unnecessarily upsetting her, we have kept our distance with my brother [1] being the one to make contact with her (as his command of Italian and her dialect is much better than mine or my brother [2's]).
My brother [1] obtained our grandmother's new phone number from other relatives shortly after it was changed and has continued to speak with her regularly sometimes for up to an hour. During one of these telephone conversations with my brother [1], our grandmother lamented that the 'family' had been destroyed and she couldn't see her family anymore but she was too scared to say anything because [the first applicant] would yell at her.
Contrary to what appears to have been written in the various documents supplied to SAT by [the first applicant] in this matter, there is nothing to be gained by us financially by our application. We all need to be mindful that she and our grandfather had two sons and currently have six grandchildren, three of which have been unable to visit or speak with her for some time due to circumstances that arose rather suddenly for us and following no act on our part. There are also great-grandchildren that our grandmother has never met.
[The first applicant’s] conduct has directly prevented us from continuing our relationship with our grandmother and that has and [sic] saddened us immensely.
This application was commenced following the receipt of an email by [the first applicant] that he was living off his mother's pension. This was a significant contributing factor as to why the application was made. The pension is not a lot to start with and should be used in its entirety for our grandmother's care and living expenses. The steps we have taken are not unreasonable in the circumstances. This is especially so given [the first applicant] is a man of means with exceptionally large superannuation deposits (he and his wife having recently received access to almost $2M to my knowledge) so there is absolutely no need to be using any of our grandmother's assets for his own use.
[The first applicant] also has commenced Magistrates Court proceedings [No.] on behalf of our grandmother and has noted during the course of those proceedings that he was acting as her Guardian/Attorney despite telling the public advocate and trustee that he has not used any EPA or EPG.
Further, as per our submissions to the SAT made in relation to our late grandfather, we believe that [the first applicant] is man [sic] capable of deceit who will act to his own advantage to suit himself - this is reflected in [judicial officer's name] statements in the reasons for his decision in the matter [case name and citation].
Given this and other history which I do not intend to go into, we are not being unreasonable to be concerned that if [the first applicant] is in a position where he is permitted to act as our grandmother's guardian or attorney, he will only act to further his own agenda and personal interests which we fear will not be in our grandmother's best interests.
As noted above, the reason for us bringing this application was to ensure our grandmother's pension was accounted for and any health matters were promptly attended to due to her language and mobility limitations.
The independent parties appointed by SAT have informed us that they are satisfied that our grandmother has capacity and that she is currently doing well. We have also reviewed the file and associated medical documents and are also satisfied that our grandmother is in control of her pension funds and is able care [sic] of herself with the necessary assistance which we understand she is receiving.
As a result we are happy that she is ok and we are withdrawing our application for a guardianship and administration order for our grandmother. We remain hopeful that in the coming months we can be afforded an opportunity to see and speak with her.
This does not dissipate our wider concerns for our grandmother and note that we may make an application in the future should the current circumstances regarding her wellbeing change.
Yours faithfully
[The practitioner]

The practitioner should have (as she recognises) expressed her concerns regarding the first applicant in a more temperate manner. The practitioner should also have (as she recognises) expressed her concerns regarding the second applicant's decision-making ability in more careful terms. In particular, the practitioner should not have said (without medical evidence) that her grandmother had dementia, but rather that she was concerned that her grandmother may have dementia.
The Tribunal is not satisfied that there is any reasonable likelihood that the practitioner would be found guilty of professional misconduct if the matter were referred to the Tribunal under s 428 of the LP Act. There is no reasonable likelihood of a finding that the conduct 'involve[d] a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence', in terms of s 403(1)(a) of the LP Act, so as to constitute 'professional misconduct'. The conduct is also obviously not so serious that there would be a reasonable likelihood of a finding 'that the practitioner is not a fit and proper person to engage in legal practice', in terms of s 403(1)(b) of the LP Act. Furthermore, although, as indicated earlier, the statutory definition of 'professional misconduct' in s 403(1) of the LP Act is not exhaustive, and consequently 'professional misconduct' includes the common law concept of unprofessional conduct,[57] the practitioner's conduct is clearly not so serious that there would be a reasonable likelihood of a finding that it is:[58]
… conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence.
[57] See Legal Profession Complaints Committee and Chang [2019] WASAT 67 at [11]-[12].
[58] The restatement of the common law concept of unprofessional conduct in Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 at [61] (Parker J, Ipp J at [1] and Steytler J at [22] agreeing).
As indicated earlier, the applicants contend that the conduct of the practitioner is more serious than unsatisfactory professional conduct and rises to the level of professional misconduct, because the practitioner lied or intentionally sought to mislead the Tribunal in the GA application and the GA withdrawal letter. However, in considering whether there is a reasonable likelihood that the practitioner would be found guilty by the Tribunal, on referral under s 428 of the LP Act, of professional misconduct on the basis that she lied or sought to mislead the Tribunal, as the Tribunal observed in Greenwood and Legal Profession Complaints Committee at [29]:
… it is … necessary to bear in mind the Tribunal's approach to the proof of matters referred to it under s 428(1) of the LP Act. It is well recognised that the consequences for a practitioner of an adverse determination are such that clear and cogent evidence will be required before a finding of unsatisfactory professional conduct or professional misconduct is made: Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42 at [63]. That follows from the fact that although the standard of proof is on the balance of probabilities, nevertheless the Tribunal must feel an 'actual persuasion' of the occurrence or existence of a relevant fact in determining whether or not conduct of that kind has been made out: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 362 (Dixon J).
There is no cogent evidence before the Tribunal in this case to the effect that the practitioner lied or sought to mislead the Tribunal in the GA application or the GA withdrawal letter for there to be a real, rather than a fanciful or remote, chance of the Tribunal finding, on referral under s 428 of the LP Act, the practitioner guilty of professional misconduct by lying or seeking to mislead the Tribunal in the GA application and the GA withdrawal letter.
The applicants also submit that the practitioner had an ulterior purpose in filing the GA application of obtaining money or an advantage over the first applicant in separate civil proceedings.[59] However, there is no cogent evidence to this effect. Rather, it appears that the practitioner (and her brothers) were motivated to file the GA application by a reasonably-based concern for their grandmother's welfare. As we said earlier, the first applicant's email to the Master's associate on 2 June 2016 gave rise to a reasonable concern about the second applicant's financial and general welfare.
[59] Applicants' submissions and cases dated 4 April 2019 pages 17 and 37.
Finally, contrary to the applicants' submission, the statement in the final paragraph of the practitioner's email to the applicants' solicitor sent at 12.31 pm on 17 August 2016, which attached the GA withdrawal letter, that '[w]e will continue to monitor the situation with our grandmother and act accordingly',[60] was not a 'threat'.[61] Rather, the statement appears to reflect a genuine interest in and concern for her grandmother's wellbeing.
[60] Applicants' bundle of documents accompanying applicants' submissions and cases dated 4 April 2019 volume 1 tab X1 page 23.
[61] Applicants' submissions and cases dated 4 April 2019 page 12. The applicants' submissions incorrectly assert that this statement is made in the last paragraph of the GA withdrawal letter. In the last paragraph of the GA withdrawal letter, the practitioner states that 'we may make an application in the future should the current circumstances regarding [the second applicant's] wellbeing change' (Legal Profession Complaints Committee s 24 Bundle of Documents dated 17 October 2018 page 135; see [27] above). This statement was also not a 'threat', but rather appears to reflect a genuine interest in and concern for the practitioner's grandmother's wellbeing.
We are therefore satisfied that there is a reasonable likelihood that the practitioner would be found guilty by the Tribunal, on referral under s 428 of the LP Act, of unsatisfactory professional conduct (but not professional misconduct).

Is the practitioner generally competent and diligent?

The Committee was satisfied that the practitioner is generally competent and diligent. There is no cogent evidence before the Tribunal on the basis of which there could be any other finding. On the evidence before the Tribunal, the practitioner has no disciplinary history.
Accordingly, the Tribunal is satisfied that the practitioner is generally competent and diligent.

Is the taking of action under s 426 of the LP Act justified having regard to all the circumstances of the case and whether any other substantiated complaints have been made against the practitioner?

The Tribunal is satisfied that the taking of action under s 426 of the LP Act is justified, having regard to all the circumstances of the case, for the following six reasons.
First, the seriousness of the practitioner's conduct is towards the lower end of the scale.
Secondly, the conduct occurred against the background of significant family acrimony involving litigation and other disputes.
Thirdly, the practitioner did not seek, and did not expect the Tribunal to make, emergency provision in relation to the GA application, with the significant distress and disruption that caused the second applicant.
Fourthly, there is no evidence before the Tribunal of any other substantiated complaints having been made against the practitioner or of any disciplinary history.
Fifthly, the practitioner was prompt and responsive to the regulatory process undertaken by the Committee.
Finally, and significantly, the practitioner has demonstrated significant insight and has expressed genuine remorse in respect of her conduct. In this regard, the practitioner offered to make written apologies to the applicants, in terms acceptable to the Committee, which the applicants did not accept. The written apologies were signed by the applicant on 18 November 2016, within about three months of the making of the first complaint and about nine months before the making of the second complaint. In her apology to the first applicant, the practitioner acknowledges that she 'should have taken more care with the general assertions made' in the GA application and that she 'should not have … disclosed [information about the first applicant's superannuation] to the Tribunal' in the GA withdrawal letter.[62] In her apology to the second applicant, the practitioner 'apologise[s] to … my grandmother … for the unintended distress and embarrassment caused to her in making the [GA application]' and states that although '[t]he application was made out of concern for her welfare …[,] I acknowledge the process which then transpired was devastating for her'.[63] The practitioner also offered to pay compensation to the second applicant.

Section 426 of the LP Act applies

[62] Legal Profession Complaints Committee s 24 Bundle of Documents dated 17 October 2018 page 209.

[63] Legal Profession Complaints Committee s 24 Bundle of Documents dated 17 October 2018 page 210.

Section 426 of the LP Act applies to the first complaint and to the second complaint, because, for the reasons stated above, the Tribunal has found that each of the five requirements of s 426(1) of the LP Act is satisfied.
The Tribunal, therefore, must now determine what action it should take against the practitioner under s 426(2) of the LP Act in relation to the first complaint and the second complaint.

What action should be taken under s 426(2) of the LP Act?

Section 426(2) of the LP Act provides that, if the section applies, any one or more of the following actions may be taken by the Committee (or the Tribunal on review) against the practitioner:
1.publicly reprimand the practitioner or, if there are special circumstances, privately reprimand the practitioner;
2.order the practitioner to pay a fine of a specified amount not exceeding $2,500;
3.make a compensation order; and
4.make an order that the practitioner seek and implement advice in relation to the management and conduct of the practitioner's practice.
The Tribunal considers that the actions taken by the Committee under s 426(2) of the LP Act in respect of each of the first complaint and the second complaint, to privately reprimand the practitioner and to order the practitioner to pay compensation to the first applicant in the sum of $4,790 and to the second applicant in the sum of $9,921.26, is the correct and preferable decision at the time of the decision upon the review, for the following reasons.
The reprimand of a practitioner is a serious penalty and it is the appropriate disciplinary consequence of the practitioner's conduct.
In our view, there are 'special circumstances' in this case, for the purposes of s 426(2)(a) of the LP Act, warranting a private, rather than a public, reprimand. A private reprimand is appropriate and necessary, in the special circumstances of this case, due to the requirement under cl 12 of Sch 1 of the GA Act that the parties to a proceeding under the GA Act must not be identified in any account of the proceeding. The practitioner cannot be identified as a party to the GA application. Consequently, the reprimand of the practitioner must be administered in private, rather than in public.
Having regard to mitigating factors in this case, in terms of the practitioner's promptness and responsiveness to the regulatory process and her significant insight and genuine remorse, including her offer of apologies to both applicants and compensation to the second applicant, and compensation orders, a fine is not warranted. Furthermore, it is unnecessary, in the circumstances of this case, to order the practitioner to seek and implement advice.
In the applicants' submissions they state that the Committee made an error in the amount included in the compensation orders for the payment of Dr DF's invoices and they refer to documents contained in the applicants' bundle of documents dated March 2019 which the applicants say provide the details of that error. At page 37 in volume 1 of the applicants' bundle of documents, there is an email dated 7 June 2018 in which the first applicant says that the Committee has erred in relation to the amount awarded to him for his costs. The first applicant states that there were two accounts from Dr DF, one in the sum of $1,980 for a report and another in the sum of $990 for a consultation with the second applicant, whereas his compensation order only allowed for the cost of the report, but not for the consultation. That statement is correct, however the cost of the consultation was included in the compensation order for the second applicant. Copies of those invoices from Dr DF are at pages 40 and 41 of volume 1 of the applicants' bundle of documents dated March 2019. The invoice for the report is addressed to the first applicant and the invoice for the consultation is addressed to the second applicant. This appears to explain why the Committee included the cost of the consultation in the compensation order for the second applicant, rather than in the compensation order for the first applicant.
The Tribunal is satisfied that the Committee did not make any error in relation to Dr DF's invoices in the compensation orders.

Consideration of whether leave should be given to review the decision of the Committee to dismiss the third complaint

As indicated earlier, because the Committee specifically found the third complaint to be 'unreasonable', the applicants cannot apply to the Tribunal for a review of the Committee's decision to dismiss the third complaint without the leave of the Tribunal.
As also indicated earlier, for leave to be granted:
1.it must be shown that the Committee's decision to dismiss the third complaint was wrong, or at least attended with sufficient doubt to justify the grant of leave; and
2.in addition, that substantial injustice would be done by leaving the decision unreversed.
The third complaint is that, despite demands by the applicants, the practitioner failed or refused to pay the amounts due under the compensation orders, which the applicants say were due 'on demand'.
The practitioner sought to pay the compensation orders initially by electronic transfer and, when the applicants refused to provide their banking details, by personal cheques which were sent by registered post to the applicants' residential addresses and received by them within about a month of the compensation orders being made. In our view, the practitioner complied with the compensation orders, or at least did what was reasonable on her part to comply, within about a month of the compensation orders being made. In our view, this was a reasonable period for compliance, given the applicants' refusal to provide their banking details and the substantial sum ($14,771.26 in total) involved.
The Tribunal regards the position adopted by the applicants, that the compensation orders were payable 'on demand' and could only be satisfied by the practitioner giving them bank cheques, instead of simply banking the personal cheques given to them by the practitioner, to be neither justified nor reasonable. The compensation orders do not state that the amounts ordered were payable 'on demand' or within any particular period. It is implicit in the compensation orders that the amounts were to be paid within a reasonable period.
The Committee's decision to dismiss the third complaint is not wrong and is not attended with sufficient doubt to justify the grant of leave to seek review. Indeed, it was the only reasonable decision to which the Committee could come. There is no reasonable likelihood that the practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct in relation to the third complaint. This complaint is not only unreasonable, but entirely devoid of merit.
The Tribunal therefore refuses leave to seek review of the decision of the Committee to dismiss the third complaint. It follows that this application for review should be dismissed.

Conclusion

For the reasons given above, the Tribunal has determined that the correct and preferable decision in these matters is to:
•affirm the decisions of the Committee made on 1 June 2018 which are the subject of review in relation to the first complaint and the second complaint; and
•refuse leave to seek review of the decision of the Committee made on 21 December 2018 to dismiss the third complaint and therefore dismiss the application for review.
Further, for the reasons given above, the Tribunal has decided to make a non-publication order in each of the three proceedings in relation to the names of the applicants, the practitioner, the practitioner's brothers and any other family member with the same surname, referred to in any evidence before, or the reasons for decision of, the Tribunal in these proceedings.

Orders

The Tribunal makes the following orders:[64]
[64] Under s 62(4) of the SAT Act, a non-publication order can only be made by a legally qualified member or the presiding member if the Tribunal as constituted for a hearing does not include a legally qualified member. Accordingly, the non-publication orders are made by Deputy President Judge Parry and Senior Member Aitken.

VR 106 of 2018
1.The application for review is dismissed.
2.The decision made by the first respondent on 1 June 2018 to privately reprimand the second respondent under s 426(2)(a) of the Legal Profession Act 2008 (WA) and to make a compensation order in favour of the applicant under s 426(2)(c) of the Legal Profession Act 2008 (WA) is affirmed.
3.Pursuant to s 62(3) and s 61(4)(c) of the State Administrative Tribunal Act 2004 (WA), in order to avoid prejudicing the administration of justice, the names of the applicant, the second respondent, the brothers of the second respondent and any other family member with the same surname, referred to in any evidence before, or the reasons for decision of, the Tribunal in these proceedings is not to be published by the Tribunal or any other person.
VR 147 of 2018
1.The application for review is dismissed.
2.The decision made by the first respondent on 1 June 2018 to privately reprimand the second respondent under s 426(2)(a) of the Legal Profession Act 2008 (WA) and to make a compensation order in favour of the applicant under s 426(2)(c) of the Legal Profession Act 2008 (WA) is affirmed.
3.Pursuant to s 62(3) and s 61(4)(c) of the State Administrative Tribunal Act 2004 (WA), in order to avoid prejudicing the administration of justice, the names of the applicant, the second respondent, the brothers of the second respondent and any other family member with the same surname, referred to in any evidence before, or the reasons for decision of, the Tribunal in these proceedings is not to be published by the Tribunal or any other person.
VR 247 of 2018
1.Leave to seek review of the decision of the first respondent made on 21 December 2018 to dismiss the applicants' complaint about the second respondent is refused.
2.The application for review is dismissed.
3.Pursuant to s 62(3) and s 61(4)(c) of the State Administrative Tribunal Act 2004 (WA), in order to avoid prejudicing the administration of justice, the names of the applicants, the second respondent, the brothers of the second respondent and any other family member with the same surname, referred to in any evidence before, or the reasons for decision of, the Tribunal in these proceedings is not to be published by the Tribunal or any other person.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MF
Associate to the Honourable Judge Parry
20 DECEMBER 2019

Attachment A - GA application

Item and supporting documents	Amount ($)
Bowen Buchbinder Vilenski (BBV) legal fees: Email from Les Buchbinder to [the first applicant] dated 25 July 2016 (scope of work), costs agreement dated 3 August 2016, BBV tax invoice 18479 dated 29 July 2016 and receipt for the sum of $2,640 dated 11 August 2016	2,640.00
Italian TI Services Booking Confirmation dated 1 July 2016 and tax invoice/receipt 074 dated 15 July 2016 and Westpac Payment Summary dated 17 July 2016	170.00
Dr DF tax invoice/receipt dated 8 August 2016 addressed to [the first applicant]	1,980.00
Total	4,790.00

Item and supporting documents	Amount ($) (Sub-total)	Amount ($)
BBV legal fees: Email from BBV to [first applicant] dated 5 August 2016 (scope of work), BBV costs agreement dated 11 August 2016, BBV tax invoice 18591 dated 22 September 2016, trust account cheques in the sum of $5,280 to [second applicant], and BBV trust account statement dated 23 September 2016	7,920
Public Trustee - Statement of Transactions from 22/06/16 to 15/08/16: 27/06/16 - Landgate search fee 04/07/16 - Landgate caveat fees 15/08/16 - PT search fee 15/08/16 - Preparation of caveat	24.60 165.80 34.00 218.00	442.40
Public Trustee - Statement of Transactions from 15/08 to 27/09/16:…….. 00/08/16 - Landgate search fee 07/09/16 - Landgate W/C fee 27/09/16 - Interest (net) 27/09/16 - Withdrawal of caveat 27/09/16 - Asset management fee 27/09/16 - Public Trustee search fee	24.85 165.80 2.57 277.00 133.74 34.90	638.86
Dr DF tax invoice/receipt dated 4 August 2016 addressed to [second applicant]	990
Total	9,991.26