Giudice v Legal Profession Complaints Committee
[2014] WASCA 115
•4 JUNE 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GIUDICE -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2014] WASCA 115
CORAM: MARTIN CJ
BUSS JA
EDELMAN J
HEARD: 5 MAY 2014
DELIVERED : 4 JUNE 2014
FILE NO/S: CACV 99 of 2012
BETWEEN: PETER GEORGE GIUDICE
Appellant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :JUDGE T SHARP (DEPUTY PRESIDENT)
MS S GILLETT (MEMBER)
MR C PHILLIPS (SENIOR SESSIONAL MEMBER)
Citation :LEGAL PROFESSION COMPLAINTS COMMITTEE and GIUDICE [2012] WASAT 144
File No :VR 113 of 2011, VR 114 of 2011
Catchwords:
Legal practitioners - Unsatisfactory professional conduct - Reckless disregard as to truth or falsity of statement in affidavit - Meaning of recklessness - Subjective assessment of actual state of mind
Legislation:
Legal Practice Act 2003 (WA), s 3
Legal Profession Act 2008 (WA), s 402, s 403, s 438(1), s 442
Road Traffic Act 1974 (WA), s 60, s 62
State Administrative Tribunal Act 2004 (WA), s 105
Result:
Leave to appeal granted
Appeal allowed
Decisions of the Tribunal set aside
Matter remitted to the Tribunal for further consideration and determination in accordance with the reasons of the court
No order as to costs
Category: A
Representation:
Counsel:
Appellant: Mr I L K Marshall
Respondent: Mr M D Cuerden & Ms P Le Miere
Solicitors:
Appellant: D L Armstrong
Respondent: Legal Profession Complaints Committee
Case(s) referred to in judgment(s):
Angus v Clifford [1891] 2 Ch 449
Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 262
Begum v Tower Hamlets London Borough Council [2003] UKHL 5; [2003] 2 AC 430
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280
Commissioner for Consumer Protection v Carey [2014] WASCA 7
Commissioner of Metropolitan Police v Caldwell [1982] AC 341
Director of Public Prosecutions v Morgan [1976] AC 182
Executive Director of Public Health v Lily Creek International Pty Ltd [2001] WASCA 410
Fidock v Legal Profession Complaints Committee [2013] WASCA 108
Gillard v The Queen [2014] HCA 16
He v Aloe & Co Pty Ltd [2006] VSCA 235
Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1
Kane v Dureau [1911] VLR 293
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390
Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502
Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56
La Fontaine v The Queen [1976] HCA 52; (1976) 136 CLR 62
Le Lievre v Gould [1893] 1 QB 491
Lederer v Hitchins [1961] WAR 99
Legal Profession Complaints Committee and Giudice [2012] WASAT 144
Legal Profession Complaints Committee and Giudice [2012] WASAT 144 (S)
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 84 FCR 411
New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177
Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
PES v The State of Western Australia [2013] WASCA 202
Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659
R v G [2004] 1 AC 1034
R v Phillips (1971) 45 ALJR 467
R v Staines (1974) 60 Cr App Rep 160
Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307
Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72
Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378
Secretary, Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331
Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (NSW) [2011] HCA 41; (2011) 245 CLR 446
Thompson v Copeland [1936] SASR 45
Tisdall v Webber [2011] FCAFC 76
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175
Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202
Wecker v Secretary, Department of Education, Science and Training [2008] FCAFC 108; (2008) 168 FCR 272
Table of Contents
Martin CJ
Summary
The proceedings before the Tribunal
The reasons of the Tribunal
The need for leave to appeal
Appeal only on a question of a law
The proposed grounds of appeal
Unreasonableness
The reasoning process adopted by the Tribunal
Buss JA
The appellant's application for leave to 'appeal'
The background facts and circumstances and the relevant parts of the Tribunal's reasons for decision
The application for leave to 'appeal' from the Tribunal's decision that the appellant was guilty of unsatisfactory professional conduct
The application for leave to 'appeal' from the Tribunal's decision concerning penalty
The proposed order as to costs
Edelman J
Introduction
The statutory question
Ground of appeal (b): the test of recklessness
Ground of appeal (a): unreasonableness
Costs
MARTIN CJ:
Summary
Mr Peter George Giudice (the practitioner) applies for leave to appeal from a decision of the State Administrative Tribunal (the Tribunal) which found him guilty of unsatisfactory professional conduct contrary to the Legal Profession Act 2008 (WA) (the Act) because he caused to be prepared under his supervision an affidavit by his client which he caused to be sworn, filed and served in court proceedings and which contained a false statement with reckless disregard as to the truth or falsity of the statement.
In order to sustain that conclusion it was necessary for the Tribunal to find, as a fact, that the practitioner wilfully disregarded the truth or falsity of the relevant portion of the affidavit or, put another way, had closed his mind to the question of whether it was true or false. That fact had to be found by reference to a subjective assessment of the practitioner's actual state of mind - in the words of one of the older cases[1] 'not caring in the [practitioner's] own heart and conscience whether it was true or false'. The Tribunal's reasons contain no express finding to that effect and strongly suggest that the Tribunal may have applied objective standards to the critical question which it was required to address, by referring to what the practitioner should have known or should have done. For the reasons which follow, leave to appeal should be granted in respect of the ground of appeal which challenges that aspect of the Tribunal's reasoning process, the appeal should be allowed, the decision of the Tribunal set aside, and the matter remitted to the Tribunal for further consideration in accordance with the reasons of the court.
[1] Le Lievre v Gould [1893] 1 QB 491, 501.
The proceedings before the Tribunal
The Legal Profession Complaints Committee (the LPCC) (the respondent) brought an application in the Tribunal seeking a finding that the practitioner had engaged in professional misconduct pursuant to s 438(1) of the Act, together with consequential orders. The grounds upon which the finding was sought were set out in an annexure to the application. Relevantly, the LPCC asserted that:
The practitioner … engaged in professional misconduct, in that he substantially failed to reach the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner:
(i)on or about 17 February 2009, by causing to be prepared under his supervision, settling and causing to be sworn, filed and served in Family Court proceedings an affidavit ('the affidavit') sworn by … ('the client') which contained a false statement, when the practitioner knew that the statement was false or, alternatively, recklessly disregarded whether the statement was true or false.
…
The LPCC made other allegations of professional misconduct against the practitioner, but those allegations were dismissed by the Tribunal, and the LPCC has not appealed from that aspect of the Tribunal's decision.
The application was brought pursuant to the provisions of the Act, notwithstanding that the practitioner's misconduct allegedly occurred prior to the commencement of the Act on 1 March 2009. This course was taken pursuant to s 622 of the Act which provides:
622. Discipline
(1)Part 13 applies in relation to conduct of Australian lawyers, former Australian lawyers, Australian legal practitioners and former Australian legal practitioners whether the conduct occurred before or after the commencement day.
(2)Part 13 applies to conduct consisting of a contravention of the 1893 Act or the 2003 Act or the rules in force under those Acts before the commencement of this section as if the conduct consisted of a contravention of this Act or the legal profession rules.
The Act distinguishes between 'unsatisfactory professional conduct' and 'professional misconduct'. 'Professional misconduct' includes unsatisfactory professional conduct where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of confidence and diligence.[2] 'Unsatisfactory professional conduct' is defined by the Act[3] in the terms used by the LPCC in its grounds which are identical to the terms used to define one aspect of the definition of 'unsatisfactory conduct' in the Legal Practice Act 2003 (WA) (the 2003 Act).[4]
[2] Section 403(1).
[3] Section 402(1).
[4] Section 3, Legal Practice Act 2003 (WA).
The Tribunal found the practitioner guilty of unsatisfactory professional conduct, rather than professional misconduct. As the ambit of that expression is identical to one component of the definition of conduct which constituted a contravention of the 2003 Act, it necessarily follows that a finding of unsatisfactory professional conduct under the Act constitutes a finding of conduct which would constitute a contravention of the 2003 Act, with the result that s 622(2) of the Act applies, and pt 13 of the Act applies as if the practitioner's conduct had constituted a contravention of the Act.
As this court has pointed out[5], when a practitioner provides information or makes a statement to a court which is false or misleading, there are (at least) three categories of case in which that conduct will constitute either professional misconduct or unsatisfactory professional conduct.[6] First, the practitioner might know that the statement or information is false or misleading. Second, the practitioner might have a reckless disregard to the question of whether the statement or information is false or misleading, and third, the practitioner might be negligent or careless. Because the first two categories will only apply if, assessed subjectively, the practitioner is either aware that the statement or information is false or misleading, or wilfully indifferent to its truth, in the absence of special circumstances one would ordinarily expect a finding of either category of conduct to be characterised as a substantial departure from the standards of conduct reasonably expected of a practitioner such as to constitute professional misconduct, within the taxonomy of the Act. In cases falling within the third category - that of negligence or carelessness - whether or not the practitioner's conduct is either unsatisfactory professional conduct or professional misconduct will depend upon the nature and degree of negligence or carelessness involved.
[5] Fidock v Legal Profession Complaints Committee [2013] WASCA 108.
[6] Using the taxonomy of the Act.
As I have noted, the grounds specified by the LPCC in its application confined the allegation against the practitioner to an allegation of conduct which fell within one or other of the first two categories to which I have referred, by alleging that the practitioner knew the statement in the affidavit was false or, alternatively, recklessly disregarded its truth or falsity. The LPCC did not allege that the practitioner was negligent or careless in relation to the preparation and use of the affidavit.
It is clear from the transcript that the proceedings before the Tribunal were conducted on this basis, and that the LPCC never contended that the Tribunal should find the practitioner guilty by reason of negligence or carelessness in the preparation or use of the affidavit. For example, during closing submissions, the following interchange took place between senior counsel for the practitioner and the presiding member of the Tribunal:[7]
WILLIAMS, MR: On our submission there are only two issues. One is whether on the basis the statement was false he did it deliberately or …
JUDGE SHARP: Or recklessly.
WILIAMS, MR: … recklessly.
JUDGE SHARP: So if I could just take that one step further. So you don't see that its open to the Tribunal, say, to make a finding that it was misleading through carelessness, because it's not been put to us. That's not what he has been charged for.
WILLIAMS, MR: No.
JUDGE SHARP: All right.
[7] ts 301.
Later in the course of closing submissions there was an interchange between counsel for the practitioner and the Tribunal in which reference was made to the three categories of conduct to which I have referred - namely, negligent or careless acts, reckless acts and deliberate acts.[8] Following that interchange, counsel for the LPCC stated:
We stand by the allegation that the statement was false and we stand by the pleading of the case that the practitioner either knew it was false or was reckless as to its truth.[9]
The reasons of the Tribunal[10]
[8] ts 307.
[9] ts 308.
[10] Legal Profession Complaints Committee and Giudice [2012] WASAT 144.
The facts found by the Tribunal which were relevant to the charge found against the practitioner are as follows. The practitioner's client separated from his wife in October 2006. The client and his wife had two children of their union. In addition, two children of the client's wife from a prior relationship were ordinary members of the household. Following the separation of the client and his wife, all four children continued to live with the client's wife at the former matrimonial home.
In November 2008, the practitioner's client was charged with seven charges of indecently dealing with, and two charges of sexual penetration of, a child under the age of 13 years. In each case the complainant was one of the children of the client's wife from her previous relationship. Following his arrest, the client was granted bail in the Magistrates Court subject to a number of conditions, one of which was a condition to the effect that the client was 'not to contact or attempt to contact the complainant or the complainant's family by whatever means'.
The client retained the practitioner to act on his behalf shortly after the grant of bail. Subsequently the client instructed the practitioner that he intended to plead guilty to the charges which had been brought against him, and that he wished to have the bail conditions varied so as to allow him to have contact with his children.
In early January 2009 the practitioner represented the client in the Magistrates Court and, in accordance with instructions, entered pleas of guilty to all charges which had been brought. The client was remanded to appear in the District Court for sentencing some months later. Bail was renewed on the same terms, including the condition precluding any contact between the client and his children.
In the meantime, without informing the practitioner, the client had filed an application for a variation of the conditions of bail. That application came on for hearing in the Magistrates Court on 19 January 2009. Mr Arndt, who was a lawyer employed in the practitioner's office, happened to be in court on another matter and, with the consent of the client, appeared on his behalf on the hearing of the application to vary the conditions of bail. At that hearing the magistrate adjourned the application for some days to enable a report to be obtained.
The matter came back on for hearing on 22 January 2009. Mr Arndt again appeared on behalf of the client. After hearing evidence and submissions, the magistrate agreed to vary some of the conditions of bail to enable the client to retrieve some personal effects.
In relation to the application to vary the condition of bail which prohibited contact between the client and his children, the magistrate said:
I don't disagree with much of what Mr Arndt said that it is inevitable that there be some contact between [the Client] and his children and that is likely to be resolved in family law proceedings. For those reasons and because of the suitability of family law proceedings resolving the appropriate interests of the parties, I would be prepared to vary bail only to this extent to provide that there be no contact or attempt to contact the complainant or the complaint's family by whatever means except as regards [the Client's children] as provided in any order made in proceedings under the Family Law Act to which [the Client's Wife] is a party [31].
Mr Arndt made a handwritten note of the proceedings which included a reference to this aspect of the magistrate's decision. He also made an electronic entry in the records maintained by the practitioner's firm in relation to his appearance before the magistrate on behalf of the client. That note recorded an order by the magistrate to the effect that the client was 'not to contact the complainant or siblings, except as regards the two natural children, as ordered in any Family Court proceedings to which the wife is a party'.
Mr Arndt also wrote to the client reporting upon the arguments which had been presented during the hearing, including the fact that the client's wife was concerned that contact with the client might have a detrimental effect upon the children, that the Department for Child Protection had concerns with respect to the emotional risks to the children, although they had the capacity to supervise any contact, and that the prosecutor had opposed any variation to the conditions of bail. The letter reported:
The Magistrate formed the view that it was not appropriate to vary your bail conditions to allow the contact you sought, but was prepared to vary your bail so that you may have contact with the children as provided by any order of a Court exercising powers under the Family Law Act to which their mother is a party.
In early February 2009, the client retained the practitioner to act on his behalf for the purposes of applying to the Magistrates Court, sitting as the Family Court of Western Australia, for an order permitting him to have contact with his biological children prior to him being sentenced in the District Court, and to have telephone contact with those children after being sentenced. The practitioner delegated the task of drafting the application and the affidavit of the client in support of that application to a law clerk who had only been working with the practitioner for a few weeks, and who had no prior experience as a law clerk. She prepared the client's affidavit under the supervision of the practitioner and with some assistance from Mr Arndt and another law clerk. Paragraph 20 of that affidavit asserted:
My original bail conditions of 27 November 2008 were that I was not to contact or attempt to contact the complainant or the complaint [sic] family by any means, [sic] On 22 January 2009 my bail conditions were varied so that I may spend time with the children supervised.
The Tribunal noted that the practitioner accepted that he was responsible for the final wording of that paragraph of the affidavit. The Tribunal also noted that the practitioner had stated in evidence that his understanding was 'that bail was varied enabling [the Client] to have supervised contact by order of a Family Court magistrate' [51]. The practitioner also accepted that he relied upon the contents of the file note made by Mr Arndt and Mr Arndt's letter to the client of 23 January 2009 at the time he settled the contents of the client's affidavit. The Tribunal relied upon that evidence to conclude that:
The Practitioner also appears to accept that he was aware when he settled the affidavit that the application for a bail variation had been addressed by the Court
in the manner described in Mr Arndt's letter to the client.
The Tribunal concluded that the paragraph of the affidavit which I have set out above contained a false statement. Its reasons for that conclusion were:
Effectively, what the Magistrate held … was that there were sufficient considerations falling within the Family Court's jurisdiction to warrant refusal of the application until that matter was addressed in the appropriate forum, but that there were no Criminal Court considerations extraneous to the Family Court matter which would otherwise preclude the bail variation sought.
On an ordinary reading of paragraph 20, the wording the Practitioner settled or chose in describing the outcome of one of the issues decided on in the Client's bail application in the Criminal Court jurisdiction, without mentioning the qualification 'as provided in any order made in proceedings under the Family Law Act to which [the Client's Wife] is a party', had the effect of importing the opposite outcome to that actually achieved [60] ‑ [61].
The Tribunal then addressed the question of whether the practitioner was aware that par 20 of the affidavit was false or whether he recklessly disregarded the truth or falsity of that paragraph. As the Tribunal's reasons with respect to those issues lie at the heart of this appeal, it is appropriate to set them out in full:
65The Tribunal's view is that it is unlikely that the Practitioner was actually aware that the statement in paragraph 20 of the affidavit was false at the time when he settled its terms. To find otherwise would suggest some deliberate act on the part of the Practitioner to mislead the Court or another practitioner. We can think of no reason why the Practitioner should do such a thing and nothing was put before us which might persuade us to this view. We think that it is more likely that this was not a deliberate act.
66The issue then is whether the Practitioner recklessly disregarded whether the statement was true or not. Somewhat obviously, if the Committee is to succeed in making this allegation the Committee must satisfy the Tribunal on the balance of probabilities that the Practitioner not only disregarded whether the statement in question was true, but did so recklessly.
67The word 'disregarded' does not present any great difficulty, but when qualified by the word 'recklessly' it perhaps presents a more challenging task of interpretation.
68It is clear from the authorities (see, for example, Pollard v Commonwealth Director of Public Prosecutions & Anor(1992) 28 NSWLR 659 at 669, 672 675) that whether or not an act was done with 'reckless disregard' will depend on the particular circumstances and requires a subjective approach.
69The ordinary meaning of reckless is 'heedless of the consequences of one's action or of danger'; Shorter Oxford English Dictionary (6th ed, 2007). The Tribunal also accepts that recklessness involves more than carelessness and more than negligence; see R v Staines (1974) 60 Cr App Rep 160.
70We therefore venture to suggest that the Committee must show that in all the circumstances the Practitioner should have been aware that the statement might be untrue and made that statement without satisfying himself that it was true and regardless of the consequences.
71As far as the circumstances are concerned, the words in paragraph 20 of the affidavit were settled by a very senior practitioner with some 30 years' experience who knows the importance of the document being complete, accurate and having no potential to mislead (T:127; 29.05.12). The Practitioner appears to have spent in excess of an hour with Ms Armstrong settling the terms of the affidavit (T:94; 29.05.12). There is no evidence of any mitigating circumstances.
72The Tribunal considers that the Practitioner, being a practitioner experienced in matters of this kind, should have considered that the words of the affidavit, in the light of the offences of which the Client was accused, namely indecently dealing with and sexual penetration of a child under the age of 13, warranted at least some further inquiry. Paragraph 20 did not reflect what he had been told had occurred in the Magistrates Court on 22 January 2009. Even a cursory examination of the transcript of that hearing would have alerted him to the problem. By not making further inquiry, the Practitioner was more than careless and showed a culpable indifference as to whether it was true and to the consequences.
…
75This constitutes a failure to reach the standard of competence and diligence that a member of the public is entitled to expect from the Practitioner. However, the Tribunal is not satisfied that this is a substantial or consistent failure. Accordingly, even though the Committee alleges professional misconduct, the Tribunal finds that in respect of the first allegation the Practitioner is guilty of unsatisfactory professional conduct.
The Tribunal published supplementary reasons[11] for concluding that the practitioner should be publicly reprimanded, fined $8,000 and ordered to pay the LPCC's costs in the amount of $9,450. The practitioner applies for leave to appeal from that aspect of the Tribunal's decision, but for the reasons which follow, it is neither necessary nor appropriate to consider that ground. Accordingly, it is unnecessary to analyse the process of reasoning adopted by the Tribunal in arriving at its conclusion with respect to penalty.
[11] Legal Profession Complaints Committee and Giudice [2012] WASAT 144 (S).
However, there is an aspect of the Tribunal's supplementary reasons which casts light upon the approach taken by the Tribunal in concluding that the practitioner was guilty of the charge brought against him. The relevant observations are in the following terms:
There is no doubt as to the seriousness of the Tribunal's finding against the Practitioner in Giudice. As the Practitioner correctly points out, the Tribunal did not believe that the Practitioner deliberately included a false statement in the affidavit which he prepared or settled for signature by his client. However, the Tribunal found that he acted in a way which was more than careless and that he showed a culpable indifference as to whether or not the affidavit was true and to the consequences; Giudice at [72]. Those consequences could have been serious and did at least lead to his client being charged with the criminal act of making a false statement under oath [14].
The need for leave to appeal
Section 105(1) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) provides that an appeal only lies to this court with leave. The principles governing the grant of leave to appeal are well established and can be succinctly expressed. Leave will be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave. Generally speaking, leave will only be granted where there is a real or significant argument which raises sufficient doubt to justify the grant of leave, and allowing the error to go uncorrected would impose substantial injustice.[12]
[12] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 per Buss JA (Wheeler and Pullin JJA agreeing) [16] ‑ [18]; Secretary, Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 [16].
Appeal only on a question of a law
Section 105(2) of the SAT Act provides that an appeal from the Tribunal to this court can only be brought on a question of law. Pursuant to s 105(13) the ambit of an appeal is expanded to include questions of fact and questions of mixed law and fact if the decision of the Tribunal under appeal has the effect of depriving a person of the person's capacity to lawfully pursue a vocation. As the penalty imposed by the Tribunal did not have that effect upon the practitioner, s 105(2) applies, and his appeal can only be brought on a question of law. It is not enough if the question 'involves a question of law' or is a question of mixed fact and law.[13]
[13] Paridis v Settlement Agents Supervisory Board [53].
The proposed grounds of appeal
Prior to the commencement of the hearing of the appeal, there were four proposed grounds of appeal against the Tribunal's finding of guilt, and three proposed grounds of appeal against the Tribunal's finding with respect to penalty and costs. As I have already foreshadowed, it is unnecessary to consider the latter three grounds for the reasons which follow.
The proposed grounds of appeal against the Tribunal's finding of guilt are extremely difficult to comprehend. They appear to have been drawn without a proper appreciation of the fact that an appeal can only be brought on a question of law, or of the consequences of that limitation. No attempt is made in the grounds or in the written submissions filed in support of the grounds to identify the relevant question of law raised by each ground. The coherence of each ground is significantly diminished by the inclusion of voluminous particulars in respect of each ground which appear, in many respects, to raise only questions of fact, and in other respects, to be unrelated to the ground in respect of which the particulars are given.
During the course of argument, with some prompting from the court, counsel on behalf of the practitioner moved to amend the appeal by adding the following additional ground:
The Tribunal erred in law in the following respects, namely:
(a)no reasonable Tribunal could have found that the appellant recklessly disregarded whether the statement was true or false;
(b)the Tribunal applied the wrong test in concluding that the appellant recklessly disregarded whether the statement was true or false.
The court considered that the grant of leave to amend by adding a ground in those terms would facilitate the interests of justice by enabling the court to engage with and focus upon the real issues raised by the application for leave to appeal. As the LPCC conceded that it would not be prejudiced by the grant of leave to amend in the terms sought, the amendment was allowed.
Counsel for the practitioner accepted that if the court did not consider that either aspect of the amended ground was sufficiently arguable to justify the grant of leave, it would follow that leave should be refused in respect of the grounds which had been previously proposed. In those circumstances, and having regard to the difficulties which bedevil the grounds previously proposed, it is unnecessary to say anything more about them, and sufficient to focus upon the amended ground.
Unreasonableness
The first aspect of the amended ground involves the assertion that the Tribunal's finding that the practitioner recklessly disregarded the truth or falsity of the relevant portion of the affidavit of the client is so unreasonable that no Tribunal acting reasonably could have arrived at that conclusion. Counsel for the practitioner described the ground as asserting Wednesbury unreasonableness, referring to the decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation.[14] In this case there is no need to consider the extent to which the principles applicable to an appeal brought on that ground have been expanded by the decision of the High Court in Minister for Immigration and Citizenship v Li,[15] because, for the reasons which follow, on any view of the ambit of the ground, it has no application to the decision of the Tribunal.
[14] Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223.
[15] Minister for Immigration and Citizenship v Li [2013] HCA 18.
It should, however, be acknowledged that an assertion that the Tribunal arrived at a decision that is so unreasonable that no reasonable Tribunal could have made that decision gives rise to a question of law.[16] There is also a question as to whether the ground of unreasonableness, properly construed in the sense described in Wednesbury and Li, has any application to findings of fact.[17] There is much to be said for the submission advanced on behalf of the LPCC to the effect that the Tribunal's conclusion that the practitioner had recklessly disregarded the truth or falsity of the relevant portion of the client's affidavit is a finding of fact and that an assertion of unreasonableness with respect to that finding could only be made out if there was no evidence upon which the finding could be made.
[16] Paridis v Settlement Agents Supervisory Board [56].
[17] Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109 [58] per Owen JA (Buss and Newnes JJA agreeing).
So, the first aspect of the amended count can be treated as, in effect, an assertion that there was no evidence upon which the Tribunal could have made the relevant finding. Thus construed, the assertion will only constitute an appeal on a question of law if it is established that there was no evidence capable of sustaining the conclusion. An assertion that a finding of fact was against the evidence, or the weight of the evidence, does not raise a question of law.[18]
[18] Paridis [54].
The Tribunal's conclusion that the practitioner recklessly disregarded the truth or falsity of the relevant portion of the client's affidavit has two components. The first is a finding that the relevant portion of the client's affidavit was false. The second component involves a finding that the practitioner recklessly disregarded the truth or falsity of the relevant portion of the affidavit. There was ample evidence to sustain a finding of fact in relation to each component of the conclusion.
I have set out above the Tribunal's reasons for concluding that par 20 of the client's affidavit was false. The evidence which sustained that process of reasoning was not contentious. The relevant facts were established by the transcript of the proceedings before the magistrate and the terms of par 20 of the affidavit. It cannot be asserted that there was no evidence upon which the Tribunal could have arrived at this aspect of its conclusion. Nor can it be reasonably asserted that the process of reasoning adopted by the Tribunal was unreasonable in any sense. To the contrary, the conclusion that the relevant paragraph of the affidavit was false was compelled by the findings of fact made by the Tribunal based on the uncontested evidence to which I have referred.
There was also evidence upon which the Tribunal could have found that the practitioner recklessly disregarded the truth or falsity of par 20 of the client's affidavit. That evidence included the practitioner's evidence to the effect that he supervised the preparation of the affidavit and settled its terms. The practitioner gave evidence to the effect that he checked to ensure that the affidavit addressed the issues with respect to the client's bail,[19] and that it was a necessary aspect of the application to the Family Court magistrate for supervised contact.[20] The practitioner must have been aware that the law clerk responsible for the preparation of the affidavit had negligible legal experience. Further, as I have already noted, the practitioner stated in evidence that his understanding was 'that bail was varied enabling [the client] to have supervised contact by order of a Family Court magistrate', and that he relied upon the contents of the file note made by Mr Arndt and Mr Arndt's letter to the client of 23 January 2009 at the time he settled the contents of the client's affidavit. The Tribunal relied upon that evidence to conclude that the practitioner appeared to accept that he was aware that the paragraph in the letter of 23 January 2009 accurately described the manner in which the magistrate had addressed the question of a variation to the conditions of bail. The facts described in that paragraph are contrary to the facts asserted in par 20 of the client's affidavit.
[19] ts 103 ‑ 104.
[20] ts 208.
There was therefore ample evidence upon which the Tribunal could have concluded that the practitioner was aware of the true position at the time he settled par 20 of the client's affidavit. That conclusion could have sustained a finding by the Tribunal to the effect that the practitioner was aware of the falsity of that paragraph at the relevant time. However, the Tribunal did not make such a finding. The evidence nevertheless provided a quite sufficient basis for the finding which the Tribunal did make, to the effect that the practitioner recklessly disregarded the truth or falsity of par 20 of the client's affidavit. Because such a finding was open to the Tribunal on the evidence, it cannot be credibly asserted that there was no evidence in support of that finding, or that the finding was so unreasonable that no reasonable Tribunal could have made it.
For these reasons, the first aspect of the amended ground is not sufficiently arguable to justify the grant of leave to appeal, which should be refused in respect of that aspect of the amended ground.
The reasoning process adopted by the Tribunal
The word 'reckless' is used in many different legal contexts. A useful review of those differing contexts is provided by the decision to which the Tribunal referred: Pollard v Commonwealth Director of Public Prosecutions.[21] Although the word has been described as ambiguous[22] and as 'imprecise in ordinary parlance',[23] I would prefer to say that the word is capable of bearing different meanings, and that the particular meaning to be applied is to be ascertained from the context in which the word is used.
[21] Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659, 669 ‑ 675.
[22] Pollard, 669.
[23] R v Phillips (1971) 45 ALJR 467, 478 per Windeyer J.
In one context, the word is capable of connoting a particular characterisation of conduct objectively assessed, without regard to the state of mind of the person responsible for that conduct. So, s 60 of the Road Traffic Act 1974 (WA) provides that the offence of reckless driving is committed by wilfully driving a motor vehicle in a manner that is inherently dangerous or that is, having regard to all the circumstances of the case, dangerous to the public or to any person. In that context, the only state of mind which must be proven to establish the offence is to the effect that the driving of the motor vehicle was wilful, and the word 'reckless' is used to characterise objectively the degree of risk created by the manner in which the vehicle was driven. The section does not require the prosecution to establish that the driver was aware of the risk which was created, or was wilfully indifferent to that risk. Section 62 of the Road Traffic Act provides that the offence of careless driving is committed by a person who drives a motor vehicle without due care and attention. So, in the context of the Road Traffic Act, the word 'reckless' is used to connote driving which creates risks of a particular character and which is, for that reason, more culpable than careless driving.
In other legal contexts, the word 'reckless' requires that a particular state of mind be subjectively established. In Fidock v Legal Professional Complaints Committee[24] this court held that an allegation of reckless disregard of the truth by a legal practitioner could only be made out if it was established that the practitioner's actual state of mind was that of indifference to the truth of the relevant statement[25] or, in the more colourful language of Le Lievre v Gould:[26]
… not caring in the man's own heart and conscience whether it was true or false - and that would be wicked indifference and recklessness.
[24] Fidock v Legal Professional Complaints Committee - a decision delivered after the decision of the Tribunal in this case.
[25] Angus v Clifford [1891] 2 Ch 449, 470 ‑ 471.
[26] Le Lievre v Gould, 501.
The court cited the observation of Bowen LJ in Angus v Clifford that, in this context, not caring did not mean not taking care.
In this case the only express finding made by the Tribunal with respect to the practitioner's state of mind was that it was unlikely that the practitioner was actually aware that the statement in par 20 of the affidavit was false at the time when he settled its terms.[27] The Tribunal made no express finding to the effect that at the time the practitioner settled par 20 of the client's affidavit he was indifferent to its truth or falsity, in the sense that he did not care whether it was true or false. The question posed by the second aspect of the amended ground of appeal is whether such a finding is implicit in the Tribunal's reasons. Unless such a finding is implicit in the reasons of the Tribunal, it cannot be concluded that the Tribunal correctly addressed and answered the critical question which it was required to answer, having regard to the LPCC's allegation that the practitioner recklessly disregarded the truth or falsity of par 20 of the client's affidavit. Such a failure would constitute an error of law and would, in the circumstances of this case, also constitute a substantial miscarriage of justice.
[27] Legal Profession Complaints Committee and Giudice [2012] WASAT 144 [65].
I have set out above all relevant portions of the Tribunal's reasons relating to the issue of reckless disregard. At the commencement of that portion of the reasons, reference is made to two authorities[28] in which a subjective approach was taken to the question of 'reckless disregard' and the Tribunal expressly acknowledged that a subjective approach was required.
[28] Pollard and R v Staines (1974) 60 Cr App Rep 160.
However, the process which follows strongly suggests that in fact the Tribunal adopted an objective approach to the question which it was required to resolve.
In [70] of its reasons, the Tribunal expresses the obligation which the LPCC had to discharge in order to establish the practitioner's guilt in objective terms - namely, that the practitioner 'should have been aware that the statement might be untrue' rather than in terms of whether the practitioner was aware that the statement might be untrue. In the next paragraph of its reasons [71], the circumstances to which the Tribunal refers are entirely objective. The first sentence of the next par [72] expresses a finding in objective terms - namely, that the practitioner 'should have considered' that the words of the affidavit warranted some further inquiry. Significantly omitted is any finding that the practitioner did in fact consider that the words warranted further inquiry but made no such inquiry because he was indifferent to their truth. The last sentence in [72] strongly suggests that the Tribunal adopted an objective approach to the characterisation of the practitioner's conduct. The Tribunal found that 'the practitioner was more than careless and showed a culpable indifference as to whether it was true'. The process of reasoning elucidated by that observation appears to involve a conclusion driven by an objective assessment of the practitioner's conduct, and a characterisation of that conduct as involving a greater degree of culpability than mere carelessness. Put another way, the observation suggests that the Tribunal approached the question of recklessness on the basis that it might be established by careless conduct of a particular quality or character, such that it could be characterised as culpable, rather than by reference to a finding of fact as to the practitioner's state of mind.
The conclusions which I have drawn from this analysis of the Tribunal's reasons are reinforced by the Tribunal's conclusion that the practitioner was not guilty of professional misconduct, but only of unsatisfactory professional conduct, because his conduct did not involve a substantial failure to comply with the standards of competence that might be expected. As I have already indicated, that would be a surprising conclusion if the Tribunal had found that the practitioner was wilfully indifferent to the truth or falsity of the paragraph in the affidavit which he settled.
The construction which I place upon the portions of the Tribunal's reasons to which I have referred is reinforced by the portion of the Tribunal's reasons with respect to penalty which I have set out above. In those reasons, the Tribunal reiterated its finding that the practitioner 'acted in a way which was more than careless and that he showed a culpable indifference as to whether or not the affidavit was true'.[29] As I have already observed, a finding expressed in those terms suggests an objective approach to the characterisation of conduct by reference to the quality or character of the culpability involved, rather than by reference to the practitioner's actual state of mind.
[29] Legal Profession Complaints Committee and Giudice [14].
When leave is sought to appeal to this court from the Tribunal, it is not appropriate to scrutinise the reasons of the Tribunal with a fine-tooth comb and an eye keenly attuned to the perception of error.[30] I do not exclude the possibility that the Tribunal may have addressed the correct question and in fact determined that the practitioner's state of mind at the time he settled par 20 of the client's affidavit was that he did not care whether its terms were true or false, but omitted to express such a finding in its reasons. However, for the reasons I have given, a finding as to the practitioner's state of mind cannot be extracted from the reasons given by the Tribunal. To the contrary, those reasons strongly suggest that the Tribunal proceeded by way of an objective assessment of the practitioner's conduct, and a characterisation of the relative culpability of that conduct.
[30] Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, per Neaves, French & Cooper JJ; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, per Brennan CJ, Toohey, McHugh and Gummow JJ.
As the reasons of the Tribunal do not demonstrate that it addressed and determined the question which had to be determined with respect to the practitioner's state of mind, it follows that an error of law is revealed which, in the circumstances of this case, if uncorrected, would be the cause of substantial injustice. Leave to appeal should be granted in respect of the second aspect of the amended ground, and that ground should be allowed. The decision of the Tribunal should be set aside and the matter remitted to the Tribunal for further consideration and determination in accordance with the reasons of this court. It is therefore neither necessary nor appropriate to consider the grounds of appeal relating to the penalty imposed by the Tribunal, as the Tribunal's decision with respect to penalty must necessarily be set aside.
In the course of argument on the appeal, counsel for the LPCC suggested that it would have been open to the Tribunal to find the practitioner guilty of unsatisfactory professional conduct on the basis of negligence or carelessness in relation to the settlement of par 20 of the client's affidavit, because the LPCC's allegation of more culpable conduct should be taken to incorporate an allegation of less culpable conduct. However, as the LPCC did not propose such a finding at any point during the proceedings before the Tribunal, nor did the Tribunal make such a finding, it would not be appropriate for this court to purport to determine that question in the course of an appeal on a question of law from the decision which the Tribunal did make. If the LPCC move for a finding on that alternative basis when the matter is reconsidered by the Tribunal, it will be a matter for the Tribunal to determine whether such a finding is open, having regard to the manner in which the proceedings were conducted before the Tribunal, and to any potential prejudice which the practitioner might suffer if the LPCC were permitted to, in effect, amend the grounds of its application against the practitioner at that stage in the proceedings.
Any final determination with respect to the costs of this appeal should await the submissions of the parties made after they have had the opportunity to consider the reasons of the court. However, it is my provisional view that there should be no order as to costs. Although the
practitioner has been successful, he has succeeded on a ground which was proposed by the court during the course of argument. The four grounds of appeal which were advanced on behalf of the practitioner were largely incoherent and have no doubt required the LPCC to incur unnecessary costs in responding to them. It is my provisional view that those costs, for which the practitioner should bear responsibility, should be set off against the costs to which the practitioner might be entitled by reason of his success, with the result that there should be no order as to costs.
BUSS JA: The appellant is a legal practitioner.
The respondent brought professional disciplinary proceedings against the appellant in the original jurisdiction of the State Administrative Tribunal (the Tribunal). The respondent alleged, relevantly:
The [appellant] … engaged in professional misconduct, in that he substantially failed to reach the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner:
(i)on or about 17 February 2009, by causing to be prepared under his supervision, settling and causing to be sworn, filed and served in Family Court proceedings an affidavit ('the affidavit') sworn by … ('the client') which contained a false statement, when the [appellant] knew that the statement was false or, alternatively, recklessly disregarded whether the statement was true or false.
After a substantive hearing, the Tribunal found that:
(a)par 20 of the client's affidavit contained a false statement [62];
(b)it was unlikely that the appellant was 'actually aware that the statement in paragraph 20 of the affidavit was false at the time when he settled its terms' [65]; and
(c)the appellant was 'more than careless and showed a culpable indifference as to whether [the statement in paragraph 20] was true and to the consequences' [72].
The Tribunal said, in a summary of its reasons, that 'the Tribunal found that the [appellant] did not deliberately include a false statement in the affidavit, but found that in the circumstances the [appellant] ought to have known that the statement was false and he recklessly disregarded whether the statement was true or false' [5].
The Tribunal concluded that the appellant had not engaged in 'professional misconduct', as defined in s 403 of the Legal Profession Act 2008 (WA) (the Act), but had engaged in 'unsatisfactory professional conduct', as defined in s 402 of the Act [75].
This conclusion was made pursuant to s 442 of the Act, which provides that the Tribunal may find a person guilty of 'unsatisfactory professional conduct' even though the referral alleged 'professional misconduct'.
The appellant's application for leave to 'appeal'
The appellant has applied for leave to 'appeal' from two decisions of the Tribunal.
The first decision, made on 26 July 2012, was the Tribunal's finding that the appellant was guilty of unsatisfactory professional conduct 'when he caused to be prepared under his supervision and caused to be sworn, filed and served in court proceedings an affidavit sworn by his client which contained a false statement and he recklessly disregarded whether the statement was true or false and thus failed to reach a reasonable standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner' [VR 113 of 2012: order 1].
The second decision, made on 23 October 2012, concerned the penalty imposed by the Tribunal in relation to its finding that the appellant was guilty of unsatisfactory professional conduct. The Tribunal publicly reprimanded the appellant, fined him $8,000 and ordered him to pay part of the respondent's costs, fixed at $9,450, within three months of the date of its orders.
I agree with Martin CJ's proposed orders including his Honour's proposed order as to costs. My reasons are as follows.
The background facts and circumstances and the relevant parts of the Tribunal's reasons for decision
The background facts and circumstances and the relevant parts of the Tribunal's reasons for decision are set out in Martin CJ's reasons. I will not repeat them except to the extent necessary to explain my reasons.
The application for leave to 'appeal' from the Tribunal's decision that the appellant was guilty of unsatisfactory professional conduct
As Martin CJ has noted, the appellant originally relied on four grounds in his application for leave to 'appeal' from the Tribunal's decision that he was guilty of unsatisfactory professional conduct.
I agree with his Honour that the original grounds disregard the nature and extent of this court's jurisdiction under s 105 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) and are largely incoherent.
Section 105 of the SAT Act provides, relevantly:
(1)A party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal.
(2)The appeal can only be brought on a question of law.
…
(9)The court dealing with the appeal may -
(a)affirm, vary, or set aside the decision of the Tribunal; or
(b)make any decision that the Tribunal could have made in the proceeding; or
(c)send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate,
and, in any case, may make any order the court considers appropriate.
(10)If the court sends the matter back to the Tribunal under subsection (9)(c), it is to give directions as to whether or not the Tribunal reconsidering the matter is to be constituted by the member or members who made the original decision.
…
(13)Despite subsection (2), if the Tribunal's decision -
(a)is made under a relevant Act or in a proceeding for the review of a decision made under a relevant Act; and
(b)has the effect of depriving a person of the person's capacity to lawfully pursue a vocation,
an appeal under this section may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact.
(14)In subsection (13) ‑
relevant Act means ‑
(a)an Act specified in Schedule 1, if it is an enabling Act; or
(b)an enabling Act prescribed by the regulations for the purposes of subsection (13).
In Commissioner for Consumer Protection v Carey [2014] WASCA 7, I stated a number of propositions about this court's jurisdiction and powers under s 105 in relation to an 'appeal', with leave, 'on a question of law' [163] ‑ [168]. There is a chronic failure by most lawyers appearing in this court to articulate, with precision or at all, questions of law in 'appeals' under s 105. In view of this chronic failure, and the serious deficiencies in the original grounds and supporting submissions in the present case, I will repeat the propositions I enunciated in Carey. I hope this repetition will encourage the profession generally to comply with s 105 and to exercise some intellectual rigour in the formulation of questions of law that are at least reasonably arguable.
First, s 105 confers jurisdiction on this court to examine for legal error what has been done in the Tribunal. Despite the description of the proceedings in this court as an 'appeal', s 105 confers original not appellate jurisdiction. The proceedings are in the nature of judicial review. They are not an 'appeal' by way of rehearing. Where a statute confers what is described as an 'appeal' from an administrative decision, and the 'appellate' court's jurisdiction is enlivened, it is necessary to identify the nature of the jurisdiction and the duties and powers of the 'appellate' court. See Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72 [15] (Gaudron, Gummow, Hayne & Callinan JJ); Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [18] (French CJ, Gummow & Bell JJ); Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 [27] (French CJ); Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (NSW) [2011] HCA 41; (2011) 245 CLR 446 [5] (French CJ, Gummow, Crennan, Kiefel & Bell JJ).
Secondly, this court's jurisdiction under s 105(1) is, by s 105(2), confined to an 'appeal' 'on a question of law'. Section 105(9), which confers powers on this court in aid of the exercise of its jurisdiction, does not enlarge that jurisdiction. See Osland [19]. Section 105 does not qualify or circumscribe the nature or character of the questions of law on which an 'appeal' may lie.
Thirdly, a question of law, for the purposes of s 105(2), is not to be distilled from the ground or grounds of appeal. See Osland [21]. The existence of a question of law is both a qualifying condition to the invoking of this court's jurisdiction under s 105 and the subject matter of the 'appeal' itself. See TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175, 178 (Gummow J); Osland [21]. It is essential that the question of law relied on for the purposes of s 105(2) be identified with precision. In Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361, I said (Wheeler and Pullin JJA agreeing) in relation to the limitation in s 105(2):
An appeal 'on a question of law' is narrower than an appeal that merely 'involves a question of law'. Where an appeal lies 'on a question of law' the subject matter of the appeal is the question or questions of law. If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law. A question of mixed law and fact is not a question of law within s 105(2). See, in the context of s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the observations in TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (Cth) (1988) 82 ALR 175 at 178; Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at 58 ‑ 60 [10] ‑ [18]; Comcare v Etheridge (2006) 149 FCR 522 at 527 [13] - [17]. Section 44(1) of the Administrative Appeals Tribunal Act provides that an appeal from a decision of the Administrative Appeals Tribunal may only be made 'on a question of law'. That provision is not materially different from the provisions of s 105(1) and (2) of the Western Australian Act [53].
Fourthly, this court may make substitutive orders under s 105(9) 'where only one conclusion is open on the correct application of the law to the facts found by the Tribunal': Osland [20]. As French CJ, Gummow and Bell JJ noted in Osland, such a case arises 'when no other conclusion could reasonably be entertained' and, in that event, this court can make the order that the Tribunal should have made [20]. Although the language of s 105(9) is of sufficient breadth to allow this court to make substitutive orders in other circumstances, that power must be exercised having regard to the limited nature of this court's 'appellate' jurisdiction, which, as I have mentioned, is confined to appeals 'on' questions of law. In Osland, French CJ, Gummow and Bell JJ elaborated on this point, as follows:
Absent such restraint, a question of law would open the door to an appeal by way of rehearing. Where there is a factual matter that has to be determined as a consequence of the appeal, it may be that it is able conveniently to be determined by the Court of Appeal upon uncontested evidence or primary facts already found by the Tribunal. When the outstanding issue involves the formation of an opinion which is, as in this case, based upon considerations of public interest, then it should in the ordinary case be remitted to the body established for the purpose of making that essentially factual, evaluative and ministerial judgment [20].
Fifthly, additional evidence is not admissible in an 'appeal' under s 105 'on a question of law'. Section 105 does not confer on this court an express power to receive such evidence. The implication of a power to receive such evidence would be inconsistent with the nature and character of this court's jurisdiction to grant leave to 'appeal' and hear an 'appeal' solely 'on a question of law'. See, in the context of s 170(1) of the Legal Practice Act 1996 (Vic), He v Aloe & Co Pty Ltd [2006] VSCA 235 [97] (Maxwell P, Eames & Redlich JJA).
Sixthly, the power under s 105(1) to grant leave to 'appeal' is conferred in general terms. It is not restricted or qualified. Leave should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave. See Paridis [14] ‑ [18]
In the present case, as in Carey, it is unnecessary to consider the position where s 105(13) applies and an 'appeal' under s 105 may be brought on any ground, 'whether it involves a question of law, a question of fact or a question of mixed law and fact'.
At the hearing, counsel for the appellant, after prompting from the court, moved for leave to amend the original grounds by the addition of a new ground, as follows:
The Tribunal erred in law in the following respects, namely:
(a)no reasonable Tribunal could have found that the appellant recklessly disregarded whether the statement was true or false;
(b)the Tribunal applied the wrong test in concluding that the appellant recklessly disregarded whether the statement was true or false.
The court granted leave to amend.
It is convenient to consider par (b) of the new ground before par (a).
The respondent alleged in the proceedings before the Tribunal, relevantly, that the appellant 'recklessly disregarded whether the statement [in par 20 of the client's affidavit] was true or false'.
The word 'reckless' has a broad connotation. Its meaning may vary in colour and content according to the context in which it is used. See, for example, the range of meanings identified by Abadee J in Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659, 669 ‑ 675.
Gummow, Hayne and Heydon JJ noted in Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 262 that the word 'reckless' has various uses as a criterion of legal liability [1]. Their Honours gave these illustrations by reference to the civil law [2]:
(a)when 'reckless' is used in the application of the principles of the tort of negligence, the standard is objective rather than subjective;
(b)in an action in deceit:
[F]raud is proved when it is shown 'that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false' (the formulation is that of Lord Herschell in Derry v Peek (1889) 14 App Cas 337 at 374). But (3) is but an instance of (2) because, as Lord Herschell put it in Derry v Peek ((1889) 14 App Cas 337 at 374): '[O]ne who makes a statement under such circumstances can have no real belief in the truth of what he states.' This reasoning is akin to that which supports the evidentiary inference explained by Lord Esher MR as being that one who wilfully shuts his eyes to what would result from further inquiry may be found to know of that result (English and Scottish Mercantile Investment Co Ltd v Brunton [1892] 2 QB 700 at 707-708).
A criminal offence may be created by statute with a criterion of intention, knowledge or awareness, recklessness or reckless indifference, or foresight with respect to some act, circumstance or consequence. See La Fontaine v The Queen [1976] HCA 52; (1976) 136 CLR 62, 75 ‑ 76 (Gibbs J); Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502, 504 ‑ 505 (Mason CJ, Deane & Dawson JJ); Banditt [6] ‑ [8].
In Pollard, Abadee J considered the proper construction and application of s 178BB of the Crimes Act 1900 (NSW) which provided, relevantly, that a person who, 'with intent to obtain for himself or another person any money or valuable thing or any financial advantage of any kind whatsoever, makes or publishes, or concurs in making or publishing any statement … which is false or misleading in a material particular and is made with reckless disregard as to whether it is true or is false or misleading in a material particular shall be liable to imprisonment for 5 years'. His Honour held that the word 'reckless' in s 178BB, when used in relation to a false statement, means 'without an honest belief as to its truth' or, in other words, 'dishonest' (674 ‑ 675).
In Gillard v The Queen [2014] HCA 16, the appellant was convicted after a trial on three counts of having sexual intercourse with the complainant, without the complainant's consent, knowing that she was not consenting or being reckless as to her consent, contrary to s 92D of the Crimes Act 1900 (ACT). The appellant was also convicted after a trial on one count of committing an act of indecency in the presence of another complainant, without the complainant's consent, knowing that she was not consenting or being reckless as to her consent, contrary to s 92J of the Crimes Act. The word 'reckless' was not defined for the purposes of s 92D or s 92J. French CJ, Crennan, Bell, Gageler and Keane JJ referred to the joint reasons of Gummow, Hayne and Heydon JJ in Banditt in which their Honours had approved various formulations by the House of Lords in Director of Public Prosecutions v Morgan [1976] AC 182 of the concept of recklessness as a state of mind in the context of the mens rea of the common law offence of rape [26]. These formulations were that the requisite state of mind was 'at least indifference as to the woman's consent' (Lord Cross of Chelsea at 203), 'the equivalent intention of having intercourse willy‑nilly not caring whether the victim consents or no' (Lord Hailsham of St Marylebone at 215) and 'without caring whether or not she was a consenting party' (Lord Edmund‑Davies at 225). French CJ, Crennan, Bell, Gageler and Keane JJ said the formulations of the House of Lords, as approved in the joint reasons in Banditt, were 'equally apt to proof of recklessness' for the purposes of s 92D and s 92J of the Crimes Act [26].
Numerous cases have examined the distinction between recklessness and negligence. In Kane v Dureau [1911] VLR 293, Cussen J said that '"recklessness", which is characterised by indifference to consequences, is to be distinguished in this respect from "negligence", in which the consequences are as a rule not expected at all' (297). In Thompson v Copeland [1936] SASR 45, Murray CJ observed that 'recklessness implies that the possible consequences which may ensue from [a person's] act are adverted to by the actor, but he is indifferent whether those consequences occur or not' (47 ‑ 48). See also Lederer v Hitchins [1961] WAR 99, 101 (Virtue J).
So, on those authorities, to be reckless as distinct from negligent, conduct must be such as to evince a disregard of or an indifference to consequences. A reckless disregard or indifference involves, at least, a subjective element of actual conscious disregard of or indifference to the risks created by the conduct.
In Commissioner of Metropolitan Police v Caldwell [1982] AC 341, the House of Lords considered the proper construction and application of s 1 of the Criminal Damage Act 1971 (UK), which provided, relevantly:
(1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.
(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another ‑ (a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and (b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered; shall be guilty of an offence.
Lord Edmund‑Davies (Lord Wilberforce agreeing), who dissented, emphasised that recklessness, in the context of s 1 of the Criminal Damage Act, involved foresight of consequences:
It has therefore to be said that, unlike negligence, which has to be judged objectively, recklessness involves foresight of consequences, combined with an objective judgment of the reasonableness of the risk taken. And recklessness in vacuo is an incomprehensible notion. It must relate to foresight of risk of the particular kind relevant to the charge preferred, which, for the purpose of section 1(2), is the risk of endangering life and nothing other than that.
So, if a defendant says of a particular risk, 'It never crossed my mind', a jury could not on those words alone properly convict him of recklessness simply because they considered that the risk ought to have crossed his mind, though his words might well lead to a finding of negligence. But a defendant's admission that he 'closed his mind' to a particular risk could prove fatal, for 'A person cannot, in any intelligible meaning of the words, close his mind to a risk unless he first realises that there is a risk; and if he realises that there is a risk, that is the end of the matter': (see Glanville Williams, Textbook of Criminal Law (1978), p 79) (358). (original emphasis)
The majority in Caldwell held that, for the purposes of s 1 of the Criminal Damage Act, to decide whether a person had been reckless as to whether harmful consequences of a particular kind would result from his or her act, it was necessary to consider the mind of 'the ordinary prudent individual' (354). Lord Diplock (Lord Keith of Kinkel & Lord Roskill agreeing) then said:
In my opinion, a person charged with an offence under section 1(1) of the Criminal Damage Act 1971 is 'reckless as to whether any such property would be destroyed or damaged' if (1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it (354).
In R v G [2004] 1 AC 1034, the House of Lords unanimously overruled the majority decision in Caldwell. Lord Bingham of Cornhill (Lord Browne‑Wilkinson & Lord Hutton agreeing) stressed that he was not addressing the meaning of 'reckless' in any other statutory or common law context than s 1 of the Criminal Damage Act 1971 (UK). After an extensive review of the case law and academic writings concerning the concept of 'recklessness' in the criminal law, his Lordship concluded that a person acts recklessly within the meaning of s 1 of the Criminal Damage Act with respect to:
(a)a circumstance, when he or she is aware of a risk that it exists or will exist;
(b)a result, when he or she is aware of a risk that it will occur,
and it is, in the circumstances known to him or her, unreasonable to take the risk [41].
In the present case, the word 'recklessly' must not be considered in isolation. It is necessary to construe the phrase 'recklessly disregarded whether the statement [in par 20 of the client's affidavit] was true or false' as a whole and in the context of the respondent's assertion, made in professional disciplinary proceedings, that the appellant's alleged reckless disregard constituted professional misconduct or, as the Tribunal concluded, unsatisfactory professional conduct.
The object of disciplinary proceedings against a legal practitioner is the protection of the public and the maintenance of proper professional standards. The maintenance of proper professional standards is conducive to the protection of the public. Disciplinary proceedings are not designed to punish the person who is disciplined even though the decision of the disciplinary tribunal may involve the imposition of sanctions on, and great deprivation to, that person. See New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177, 183 ‑ 184 (Barwick CJ, Kitto, Taylor, Menzies & Owen JJ); Paradis [25]. The powers that are exercisable by the Tribunal where it has found a legal practitioner guilty of professional misconduct or unsatisfactory professional conduct are set out in s 438 ‑ s 441 of the Act.
In my opinion, the allegation that the appellant 'recklessly disregarded whether the statement [in par 20 of the client's affidavit] was true or false' comprises two subjective elements.
The appellant will have recklessly disregarded whether the statement was true or false if:
(a)the appellant was aware, when he settled the statement in par 20 and caused the affidavit to be sworn, filed and served in the Family Court proceedings, that there was a risk that the statement was untrue or false; and
(b)the appellant consciously disregarded the risk.
Those elements are subjective in that they are concerned with the appellant's actual state of mind.
The notion of 'conscious disregard' by the appellant of the risk, being the second element, connotes that the appellant wilfully or deliberately shut his eyes to, or excluded from contemplation, the risk that the statement was untrue or false. See PES v The State of Western Australia [2013] WASCA 202 [22] (Buss JA, McLure P & Mazza JA agreeing).
If the Tribunal, having found that the statement was false, were to find that the subjective elements had been made out and that the appellant had therefore 'recklessly disregarded whether the statement was true or false', those findings would not resolve the matter. It would then be necessary for the Tribunal to consider whether it should be concluded that, in all the circumstances, the appellant had engaged in professional misconduct or, alternatively, unsatisfactory professional conduct.
The Tribunal would be bound to consider that issue by reference to all the circumstances, including the relevance and materiality of the statement, the magnitude of the risk, the duties owed by the appellant as a legal practitioner to the court and the intended use (to the appellant's knowledge) of the affidavit in the Family Court proceedings. All the circumstances, including those I have specified, must be evaluated, on an objective basis, to determine whether the appellant's actual awareness of the risk and his actual conscious disregard of it in those circumstances require the conclusion that he engaged in professional misconduct or unsatisfactory professional conduct.
A legal practitioner owes duties of candour and honesty to the court. Indeed, the duty of a legal practitioner not to mislead the court is at the heart of his or her duty as an officer of the court. See Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 [61] (Owen, Wheeler & Newnes JJA).
In Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56, the appellant was a legal practitioner who had deliberately or knowingly misled the court. It was not a case where a legal practitioner had 'recklessly' misled the court. In Kyle, Ipp J said:
It is the essence of a charge of unprofessional conduct involving misleading the court that the practitioner concerned is guilty of having done something dishonourable: see Re Cooke (1889) 5 TLR 407 at 408, per Lord Esher MR, (with whom Fry and Lopes LJJ agreed). The dishonourable quality lies in knowingly misleading the court: Tombling vUniversal Bulb Co Ltd [1951] 2 TLR 289 at 297, per Denning LJ; Vernon v Bosley (No 2) [1997] 3 WLR 683; [1997] 1 All ER 614. A practitioner who knowingly misleads a court will do so dishonestly. Therein lies the unprofessional conduct. There can be no professional misconduct where a practitioner innocently misleads a court; that is, without knowledge that the court is being misled. I accept, therefore, the submissions made by senior counsel that an intention to deceive, or dishonesty, is a necessary element of misleading the court [6].
However, as Martin CJ, Newnes and Murphy JJA explained in Fidock v Legal Profession Complaints Committee [2013] WASCA 108, a legal practitioner who misleads the court may engage in professional misconduct even though the practitioner did not knowingly mislead the court [100]. Their Honours gave, as an example, 'a solicitor [who] swears an affidavit recklessly, careless whether it be true or false in the sense discussed in the authorities on fraudulent misrepresentation' [100]. In these circumstances, the practitioner's conduct 'will generally properly be characterised as professional misconduct' [100]. Their Honours added that 'there is no reason in principle why conduct which can be classified as negligent cannot amount to professional misconduct' [101], and then provided the following example:
Thus, for example, a misleading statement to the court made by a practitioner on a matter of importance to the disposition of the case, where the misstatement is made as a result of gross carelessness, may, depending on all the circumstances, involve a 'substantial … failure to reach or maintain a reasonable standard of competence and diligence' and thereby constitute professional misconduct within the meaning of s 403 of the 2008 Act. The importance of practitioners providing reliable information to the court applies with heightened force to a solemn occasion such as the swearing of an affidavit by a solicitor. Its significance is underscored where the affidavit is in support of an ex parte application [102].
In Fidock, the Tribunal found that the appellant, who was a legal practitioner, had engaged in professional misconduct in three respects including, relevantly, by swearing misleading affidavits containing misleading statements 'and [making] those misleading statements recklessly' [1]. This court criticised the Tribunal's approach to the issue of 'recklessness' by reference to a line of authority, including Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378, which was concerned with the nature of dishonesty and recklessness in the context of accessorial liability for breach of trust [93], [103]. Martin CJ, Newnes and Murphy JJA said 'the authorities dealing with reckless misstatement would have provided a more pertinent source of guidance to the Tribunal in relation to the misleading affidavits' [93]. Nevertheless, this court dismissed the appeal. The Tribunal's findings of primary fact were sufficient to justify its conclusion of professional misconduct. Martin CJ, Newnes and Murphy JJA said:
[T]he effect of the findings is that [the appellant] knew sufficient to indicate that Mrs Argentieri may have a claim to the money and he was thereby reckless or indifferent to the importance of the truth in swearing his affidavits in support of his application for probate. Even if, as the Tribunal found, [the appellant] did not actually know that the affidavits were false, that was sufficient to warrant the finding of professional misconduct, either by reference to Kyle or to s 403(1)(a) of the 2008 Act [106].
Section 403(1)(a) of the Act defines 'professional misconduct' to include 'unsatisfactory professional conduct … where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence'.
In the present case, I am satisfied that, despite a reference in its reasons to a 'subjective approach' being necessary in assessing 'whether or not an act was done with "reckless disregard"' [68], the Tribunal applied the wrong test in deciding that the appellant had recklessly disregarded whether the statement was true or false. The Tribunal did not focus on the appellant's actual state of mind in relation to the false statement in par 20. This is apparent from a number of passages in the Tribunal's reasons.
In its reasons:
(a)the Tribunal found that in the circumstances 'the [appellant] ought to have known that the statement was false' [5];
(b)the Tribunal said 'the [respondent] must show that in all the circumstances the [appellant] should have been aware that the statement might be untrue' [70]; and
(c)the Tribunal said the appellant 'should have considered that the words of the affidavit … warranted at least some further inquiry' [72].
The findings and comments that the appellant 'ought to have known', 'should have been aware' and 'should have considered that the words … warranted at least some further inquiry' connote negligence or carelessness. They are inconsistent with the notion of an actual 'awareness' of a risk and an actual 'conscious disregarding' of the risk.
Also, the Tribunal's observation, at [71] of its reasons, that 'the words in paragraph 20 of the affidavit were settled by a very senior practitioner with some 30 years' experience who knows the importance of the document being complete, accurate and having no potential to mislead' are concerned with relevant objective circumstances and not the appellant's actual state of mind. Similarly, the Tribunal's statement, at [72] of its reasons, that '[b]y not making further inquiry, the [appellant] was more than careless and showed a culpable indifference as to whether it was true and to the consequences' indicates that the Tribunal made an objective appraisal of the appellant's conduct and the degree of his culpability, rather than undertake an inquiry as to his actual state of mind, in deciding that the appellant had recklessly disregarded whether the statement was true or false.
The Tribunal did not in its reasons mention any of the appellant's evidence that was of direct relevance to his state of mind. Also, the Tribunal did not in its reasons make any express findings of fact as to the appellant's actual state of mind in the context of the alleged reckless disregard. No implication can properly be made to overcome this omission.
At the hearing of the appeal, counsel for the respondent submitted that leave to appeal should be refused and the appeal dismissed because it was open to the Tribunal to find that the appellant had been negligent or careless in his conduct concerning par 20 of the client's affidavit and because an allegation of less egregious conduct of this kind was subsumed within the respondent's assertion of reckless disregard. I do not accept that submission. The proceedings before the Tribunal were fought on the basis that the issues as between the appellant and the respondent were whether the appellant had engaged in professional misconduct in that he knew the statement in the affidavit was false or, alternatively, he recklessly disregarded whether the statement was true or false. Negligence or carelessness was not in issue between the parties. The Tribunal did not base its decision on negligence or carelessness. In these circumstances, and in view of the proceedings in this court being in the nature of judicial review, it would not be appropriate for this court to endeavour to resolve the case in the manner submitted on behalf of the respondent.
Paragraph (b) of the new ground has been made out. It is in the interests of justice to grant leave to appeal on par (b). The Tribunal made a material error of law. This court is not able to conclude that the error did not affect the Tribunal's fact finding process or its conclusion that the appellant had engaged in unsatisfactory professional conduct.
I turn to par (a) of the new ground. Paragraph (a) is to be understood as an assertion that there was no evidence on which the Tribunal could have made findings that the appellant had recklessly disregarded whether the statement in par 20 of the affidavit was true or false.
In my opinion, par (a) is without merit.
The Tribunal was correct, generally for the reasons it gave, in deciding that the statement was false. The Tribunal's decision on this point was the only conclusion reasonably open when the transcript of the relevant proceedings in the Magistrates Court is compared with the terms of par 20 of the client's affidavit.
As I have mentioned, the Tribunal applied the wrong test in concluding that the appellant recklessly disregarded whether the statement was true or false and, in consequence, failed to make findings as to the appellant's actual state of mind in relation to the subjective elements I have identified at [95] above. However, on my assessment of the record of the proceedings before the Tribunal, it cannot reasonably be concluded
by this court that, on the application of the correct test, it would not be open to the Tribunal to make findings adverse to the appellant in relation to those elements. Some of the evidence on which the Tribunal might rely, in making findings adverse to the appellant, is set out at [39] of Martin CJ's reasons.
If the Tribunal, applying the correct test, were to make findings adverse to the appellant in relation to the subjective elements, it would be open to the Tribunal to conclude that, in the circumstances revealed by the record of the proceedings before it, the appellant had engaged in professional misconduct or unsatisfactory professional conduct.
I am therefore satisfied that there was evidence before the Tribunal on the basis of which it could properly conclude, first, that the statement was false, secondly, that the appellant had recklessly disregarded whether the statement was true or false and, thirdly, that he had engaged in professional misconduct or unsatisfactory professional conduct.
Leave to appeal in respect of par (a) of the new ground should be refused.
The application for leave to 'appeal' from the Tribunal's decision concerning penalty
I agree with Martin CJ, for the reasons he gives, that it is neither necessary nor appropriate to consider the merits of the appellant's application for leave to 'appeal' from the Tribunal's decision concerning penalty. The Tribunal's decision with respect to penalty must be set aside as a result of the appellant having successfully challenged in this court the Tribunal's decision that he had engaged in unsatisfactory professional conduct.
The proposed order as to costs
I agree with Martin CJ, for the reasons he gives, that on a provisional view there should be no order with respect to the costs of the proceedings in this court.
EDELMAN J:
Introduction
The Chief Justice has explained the background to this appeal at [3] ‑ [26] of his reasons. I gratefully adopt his Honour's summary. The essential questions on this appeal concern the Tribunal's consideration of
whether the practitioner recklessly disregarded the truth of the statement in par 20 of the affidavit he settled.
A new ground of appeal was advanced during the hearing. The two limbs of the new ground of appeal were that:
(a)no reasonable Tribunal could have found that the [practitioner] recklessly disregarded whether the statement was true or false; and
(b)the Tribunal applied the wrong test in concluding that the [practitioner] recklessly disregarded whether the statement was true or false.
Counsel for the practitioner accepted that if the practitioner did not succeed on either of the two limbs of the new ground of appeal then the practitioner could not succeed on any of the previous written grounds.[31] The previous grounds were overlapping and, in the absence of success on the new ground (a), they could not affect the result of the appeal.
[31] ts 28 (5 May 2014).
If ground (a) were successful then the decision of the Tribunal would be quashed and the matter would not be remitted to the Tribunal. However, for the reasons below, I agree with the Chief Justice that leave should be refused on ground (a) and that ground (a) must fail.
For the reasons below, I also agree that ground (b) must succeed, the decision of the Tribunal quashed and the matter remitted to the Tribunal.
The statutory question
Section 622 of the Legal Profession Act 2008 (WA) (the 2008 Act) provides that pt 13 (Complaints and Discipline) 'applies to conduct consisting of a contravention of the ... [Legal Practice Act 2003] ... before the commencement of this section as if the conduct consisted of a contravention of this [2008] Act ...'.
The 2008 Act commenced on 1 March 2009. The relevant conduct in this case all occurred before March 2009.
The Tribunal declined to make a finding of 'professional misconduct'. In the absence of such a finding it is unsurprising that no ground of appeal, and no submission, was concerned with the scope or operation of s 622 of the 2008 Act in relation to conduct that might amount to professional misconduct (which is a concept that appears in the 2008 Act but not in the 2003 Act).
For the purpose of this appeal, it suffices to observe that, as the Chief Justice has explained at [5] ‑ [7], the finding of 'unsatisfactory professional conduct' that was made by the Tribunal in relation to the 2008 Act has an ambit that is identical to the inclusive definition of 'unsatisfactory conduct' which constitutes a contravention of the Legal Practice Act 2003 (WA) (the 2003 Act).
Ground of appeal (b): the test of recklessness
The question raised by this ground of appeal was introduced by amendment during the course of oral submissions. The question is whether the Tribunal made an error of law in its application of the test of 'recklessness'.
I agree with the Chief Justice, for the reasons he gives, that the meaning of 'reckless' will be coloured by the context in which that term is used. I also agree with the Chief Justice's reasons at [44] that the context of the allegation of recklessness, involving a complaint against a legal practitioner,[32] was an allegation of subjective recklessness in the sense of the practitioner being indifferent to the truth of the statement or 'not caring in the [practitioner's] own heart and conscience whether it was true or false'.[33] As the High Court of Australia, quoting from various judgments in the House of Lords, recently expressed the common law concept of recklessness in criminal law, it involves 'at least indifference' or 'not caring'.[34] This was also the sense in which the case was run. The case was opened on the basis that the practitioner knew that the statement was false or was 'reckless as to whether [the statement] was true'.[35]
[32] Fidock v Legal Profession Complaints Committee [2013] WASCA 108.
[33] Le Lievre v Gould [1893] 1 QB 491, 501 (Bowen LJ).
[34] Gillard v The Queen [2014] HCA 16 [26] (the Court).
[35] ts 6 (28 May 2012).
The question is whether the Tribunal properly applied this legal test.
The Tribunal started with the correct test at [68]. The Tribunal cited pages from the decision in the New South Wales Court of Appeal decision in Pollard v Commonwealth Director of Public Prosecutions.[36] At those pages, Abadee J discussed the concept of recklessness at length before concluding that it was a subjective concept.
[36] Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659, 672 ‑ 675.
The Tribunal also defined 'reckless' from the Shorter Oxford English Dictionary in terms that were concerned with subjectivity: 'heedless of the consequences of one's action or of danger': [69].
Despite these references to subjectivity, there are five other matters that suggest that the Tribunal applied a test which was not subjective and which suggest that the Tribunal considered that recklessness could also be proved without making a determination about the actual state of the practitioner's mind (which it could not).
First, there are the remarks by the Tribunal in [70] and [72].
At [70], the Tribunal says that the Committee was required to show that 'in all the circumstances the Practitioner should have been aware that the statement might be untrue and made that statement without satisfying himself that it was true and regardless of the consequences' (emphasis added).
At [72], the Tribunal said that the practitioner 'should have considered that the words of the affidavit ... warranted at least some further inquiry' (emphasis added).
It is possible that the references by the Tribunal to 'should have been aware' and 'should have considered' might be read as shorthand references to
A matter that any reasonable practitioner would have been aware so that the inference to draw from the circumstances was that this practitioner was aware that the statement might be untrue and made that statement without satisfying himself that it was true and regardless of the consequences.
By themselves, it is possible that these references might have been capable of being understood in this way, especially since in 'appeals' of this nature a court should not be 'concerned with looseness in the language ... nor with unhappy phrasing' of the decision-maker, and the reasons for the decision under review should not be 'construed minutely and finely with an eye keenly attuned to the perception of error'.[37]
[37] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh & Gummow JJ); Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, 287 (the Court). See also Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320, 332 ‑ 333 [20] (French CJ, Gummow & Bell JJ).
However, these references to 'should have' must also be considered in the context that the Tribunal made no express conclusion that the practitioner's state of mind was one of indifference, or not caring, about the truth of par 20 of the affidavit. Further, for the four additional reasons below, the references to 'should have' cannot be attributed to mere looseness in language.
Secondly, the Tribunal made no reference to any of the practitioner's evidence that was directly relevant to his state of mind. If the Tribunal's focus in its reasons was on the subjective state of mind of the practitioner then an important consideration ought to have been the practitioner's direct evidence about his state of mind.
In cross‑examination, the practitioner's evidence was that what 'was in [his] head' was that the 'bail conditions were varied' to enable 'supervised contact under an order of a family law magistrate'.[38] He reiterated that his understanding at the time he settled the affidavit was that 'bail was varied enabling [the client] to have supervised contact by order of a Family Court magistrate'.[39] The practitioner then said that this was how he had read par 20 of the affidavit at the time.[40]
[38] ts 210 (30 May 2012).
[39] ts 207 (30 May 2012).
[40] ts 210 (30 May 2012).
If accepted by the Tribunal, this evidence from the practitioner might have invited the conclusion that the practitioner, however carelessly, had incorrectly formed the opinion that par 20 was true. More precisely, to put the matter in terms of the burden of proof upon the LPCC and the context in which that burden needed to be satisfied,[41] unless the practitioner's evidence were rejected by the Tribunal, his evidence might have prevented the inference that he was indifferent about whether par 20 was true or false.
[41] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
Thirdly, the issue of recklessness also appears to have been conflated with carelessness in closing submissions of counsel for the respondent (who was not counsel on this appeal). Although the submissions of counsel are not directly relevant to construing the reasons of the Tribunal, those submissions provide relevant context to the Tribunal's decision.
Counsel for the respondent opened the respondent's case on the basis that actual knowledge of falsity or recklessness as to truth was alleged.[42] In dealing with this charge in closing submissions, counsel submitted that the practitioner knew that par 20 of the affidavit was false (which the Tribunal rejected). But then counsel expressed the alternative in terms that 'he merely believed genuinely that it truly reflected the information he had' and was 'a substantial and culpable [sic] failure of professional competence'.[43] This alternative is not an expression of subjective recklessness.
[42] ts 6 (28 May 2012).
[43] ts 277 (31 May 2012).
The manner in which counsel for the LPCC closed the case of the LPCC lends further force to the conclusion of the Chief Justice at [49] that the Tribunal approached the question of recklessness on the basis that it might be established by careless conduct of a particular quality or character.
Fourthly, there is an apparent error of comparison in the statement by the Tribunal at [69] that recklessness involves 'more than carelessness and more than negligence'. Negligence is an objective concept. Recklessness in the context of this case is subjective. Describing recklessness as 'more than' negligence suggests that the matters might be comparable on the same scale.
The later repetition of this remark by the Tribunal at [72] is also consistent with an objective approach to recklessness. At that paragraph the Tribunal says that the practitioner was 'more than careless and showed a culpable indifference as to whether [the statement in par 20] was true and to the consequences'. The reference to what the conduct of the practitioner showed suggests an objective characterisation of recklessness rather than the attempt to draw an inference about the state of mind of the practitioner.
Fifthly, there is, at least, an incongruity between a finding of recklessness by the Tribunal and the conclusion of the Tribunal that the unsatisfactory professional conduct of the practitioner did not involve a 'substantial' failure to reach or maintain a reasonable standard of competence and diligence.
Putting aside any issue, which was not argued on this appeal, concerning whether or not a legal characterisation of 'substantial failure' was open under s 622 of the 2008 Act, the conclusion of the Tribunal that the conduct of the legal practitioner did not satisfy this test of 'substantial' failure suggests that the Tribunal did not consider the conduct to be reckless in a subjective sense.
A finding of subjective recklessness would have been an extremely serious finding that a legal practitioner settled an affidavit without caring about the truth of an assertion by his client that 'my bail conditions were varied so that I may spend time with the children supervised'. The finding would be even more serious in circumstances in which the client had informed the practitioner two months earlier that the client intended to plead guilty to seven charges of indecently dealing with a child under the age of 13 years, and two charges of sexual penetration of a child under the age of 13 years. It is difficult to see how a finding of recklessness, if intended in a subjective sense, could have been considered to involve a failure to reach or maintain a reasonable standard of competence and diligence but not to involve a 'substantial' failure.
Although there are references to subjectivity in the reasons of the Tribunal, the five matters referred to above illustrate why, when read as a whole, the Tribunal's reasons determined the question of recklessness of the practitioner without drawing any inference concerning the practitioner's state of mind that the practitioner did not care whether the statement in par 20 was true or false.
For these reasons, I agree with the Chief Justice that the decision of the Tribunal should be set aside and the matter remitted to the Tribunal for further consideration and determination in accordance with the reasons of this Court. I also agree that as the Tribunal's decision in relation to penalty must be set aside, it is neither necessary nor appropriate to consider the grounds of appeal in relation to the penalty imposed by the Tribunal.
Ground of appeal (a): unreasonableness
The other ground of appeal must also be considered. If the ground alleging unreasonableness were upheld then it would not be appropriate to remit this matter to the Tribunal for reconsideration.
It is unnecessary in this case to consider the scope and effect of the decision of the High Court in Minister for Immigration and Citizenship v Li[44] or the boundaries of 'unreasonableness' as ground of appeal in relation to the finding of facts or drawing of inferences. This is because in this case it was reasonably open for the Tribunal to find that the practitioner recklessly disregarded whether the statement was true or false, particularly in circumstances where the Tribunal saw and heard the evidence of the practitioner.
[44] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225.
The LPCC in this case did not attempt to prove recklessness by direct evidence. The practitioner's evidence, if accepted, was that he was not reckless. Any conclusion that the practitioner was reckless could only be drawn as a matter of inference from other facts.
The question whether a particular inference can be drawn from facts found or agreed is a question of law.[45] However, in Australian Broadcasting Tribunal v Bond,[46] Mason CJ explained that the Australian authorities only recognise an erroneous inference as an error of law where the inference is not reasonably open.[47]
[45] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 355 (Mason CJ).
[46] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 355 (Mason CJ).
[47] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 355 (Mason CJ). See also Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, 8 ‑ 9 (Mason J); Executive Director of Public Health v Lily Creek International Pty Ltd [2001] WASCA 410 [48] (Wheeler J).
An error of law in drawing an inference that is not reasonably open may be different from the well-established[48] basis for review where there is no evidence to support a finding of fact or an inference drawn. It is not necessary in this case to consider whether such a distinction exists.[49] It suffices to say that unlike in England, where an 'irrational' or 'illogical' drawing of an inference is a ground of review,[50] in Australia the concept of an error of law does not include a 'want of logic' in drawing an inference. The want of logic is only relevant if it 'sound[s] a warning note to put one on inquiry whether there was indeed any basis for the inference drawn'.[51]
[48] Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390, 418 [91] (Hayne, Heydon, Crennan & Kiefel JJ).
[49] Cf Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307, 335 [85] (Jagot J; Nicholas J agreeing).
[50] Begum v Tower Hamlets London Borough Council [2003] UKHL 5; [2003] 2 AC 430, 462 [99] (Lord Millett).
[51] Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 84 FCR 411, 422 [25] (the Court); Wecker v Secretary, Department of Education, Science and Training [2008] FCAFC 108; (2008) 168 FCR 272, 295 ‑ 296 [99] (Greenwood J; French & Weinberg JJ agreeing); Tisdall v Webber [2011] FCAFC 76; (2011) 193 FCR 260, 270 ‑ 271 [31] (Greenwood J; Buchanan & Tracey JJ agreeing).
The Chief Justice addresses the evidence relevant to the falsity of the statement in par 20 and the practitioner's state of mind at [38] - [40] of his reasons. An inference of recklessness was reasonably open to the Tribunal. Whether that inference should be drawn by the Tribunal will depend upon an assessment of the relevant evidence including the direct evidence given by the practitioner concerning his state of mind and in the context of the nature and seriousness of the allegations.
Leave to appeal in relation to this ground should be refused.
Costs
Like the Chief Justice, and for the reasons his Honour gives, I also have reached the provisional view that there should be no order as to costs. At the conclusion of the appeal, counsel for the LPCC also said that he had instructions that in the event that the appeal was allowed, the LPCC would be content with no order as to costs.[52]
[52] ts 50 (5 May 2014).
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GIUDICE -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2014] WASCA 115 (S)
CORAM: MARTIN CJ
BUSS JA
EDELMAN J
HEARD: 4 JUNE 2014
DELIVERED : 17 JUNE 2014
FILE NO/S: CACV 99 of 2012
BETWEEN: PETER GEORGE GIUDICE
Appellant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :JUDGE T SHARP (DEPUTY PRESIDENT)
MS S GILLETT (MEMBER)
MR C PHILLIPS (SENIOR SESSIONAL MEMBER)
Citation :LEGAL PROFESSION COMPLAINTS COMMITTEE and GIUDICE [2012] WASAT 144
File No :VR 113 of 2011, VR 114 of 2011
Catchwords:
Practice and procedure - Costs - Whether no order should be made as to costs - Unnecessary costs incurred due to unsatisfactory grounds of appeal
Legislation:
Nil
Result:
No order as to costs of the appeal
Category: B
Representation:
Counsel:
Appellant: Mr I L K Marshall
Respondent: Mr M D Cuerden & Ms P Le Miere
Solicitors:
Appellant: D L Armstrong
Respondent: Legal Profession Complaints Committee
Case(s) referred to in judgment(s):
Giudice v Legal Profession Complaints Committee [2014] WASCA 115
REASONS OF THE COURT: On 4 June 2014, the court published its reasons[53] for concluding that the practitioner's appeal should be allowed, the decision of the Tribunal from which he appealed set aside, and the matter remitted to the Tribunal for further consideration and determination in accordance with the reasons of the court.
[53] Giudice v Legal Profession Complaints Committee [2014] WASCA 115.
In those reasons, Martin CJ expressed the provisional view that there should be no order as to the costs of the appeal. In support of that view he observed:
Although the practitioner has been successful, he has succeeded on a ground which was proposed by the court during the course of argument. The four grounds of appeal which were advanced on behalf of the practitioner were largely incoherent and have no doubt required the LPCC to incur unnecessary costs in responding to them. It is my provisional view that those costs, for which the practitioner should bear responsibility, should be set off against the costs to which the practitioner might be entitled by reason of his success, with the result that there should be no order as to costs.[54]
[54] [2014] WASCA 115 [55].
The other members of the court (Buss JA and Edelman J) agreed with those views.[55]
[55] [2014] WASCA 115 [119], [161].
Notwithstanding the expression of those views, the practitioner has applied for an order that the LPCC pay 50% of his costs of the appeal. The only argument put in support of that application was to the effect that the practitioner was ultimately successful and that he incurred at least some costs which were not directly referable to the grounds of appeal that were described by the court as 'largely incoherent'. However, that proposition misses the point of the earlier observations of the court. The point of those observations was to the effect that the costs to which the practitioner should be entitled by reason of his success should be set off against the costs to which the LPCC should be entitled because of the unsatisfactory nature of the grounds of appeal advanced on behalf of the practitioner, with the result that those countervailing entitlements effectively cancelled each other. Nothing said in support of the practitioner's application for costs diminishes the force of that reasoning, which should be maintained. Accordingly, there will be no order as to the costs of the appeal.
38
44
4