IN DE BRAEKT and LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA

[2019] WASAT 44

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION:   IN DE BRAEKT and LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA [2019] WASAT 44

MEMBER:   JUDGE T SHARP, DEPUTY PRESIDENT

MR S ELLIS, SENIOR SESSIONAL MEMBER

MS R MOORE, MEMBER

HEARD:   14 AND 15 JANUARY 2019 AND 27 FEBRUARY 2019

DELIVERED          :   27 JUNE 2019

FILE NO/S:   VR 70 of 2018

BETWEEN:   MEGAN MAREE IN DE BRAEKT

Applicant

AND

LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA

Respondent

Catchwords:

Review - Refusal to issue and file compliance certificate in Supreme Court for admission to legal profession - Fit and proper person

Legislation:

Legal Practitioners Act 1983 (WA)
Legal Profession (Admission) Rules 2009 (WA), r 23
Legal Profession Act 2008 (WA), s 3, s 8, s 22, s 22(1), s 26(1), s 26(2), s 30, s 31(1), s 31(2), s 31(3), s 250A
Racial Discrimination Act 1975 (WA), s 18C
State Administrative Tribunal Act 2004 (WA), s 27(1), s 29(1)

Result:

Decision of Legal Practice Board affirmed
Application dismissed

Category:    B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr AT Macknay

Solicitors:

Applicant	:	N/A
Respondent	:	MDS Legal

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

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194

Dixon v Legal Practice Board of Western Australia [2012] WASC 79

Frugtniet v Board of Examiners [2002] VSC 140

Gregory v Queensland Law Society Inc [2002] 2 Qd R 583

in de Braekt v Legal Profession Complaints Committee [2016] WASCA 220

Kanapathy v in de Braekt (No 2) [2011] FMCA 51

Kanapathy v in de Braekt (No 4) [2010] FMCA 1015

Kanapathy v in de Braekt [2010] FMCA 1015

Legal Profession Complaints Committee and in de Braekt [2011] WASAT 1

Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58

Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S)

Legal Profession Complaints Committee v Bachmann [2011] WASC 309

Legal Profession Complaints Committee v in de Braekt [2013] WASC 124

Mungar v Legal Practice Board of WA [2009] WASC 135

Pepe v Legal Practice Board of Western Australia [2016] WASC 54

Re Stokes; ex parte Stokes [2008] WASC 269; (2008) 38 WAR 208

Skerritt v Legal Practice Board of Western Australia [2004] WASCA 28

Zampatti v Western Australian Planning Commission [2010] WASCA 149

REASONS FOR DECISION OF THE TRIBUNAL:

A. Introduction

1. The applicant, Ms Megan Maree in de Braekt (Ms in de Braekt) is seeking to be readmitted as a legal practitioner.

2. The issue in these proceedings is whether Ms in de Braekt is a fit and proper person to be admitted to legal practice.

B. Factual Background

1. Ms in de Braekt was admitted as a legal practitioner on 5 March 2003 under the Legal Practitioners Act 1893 (WA).

2. Ms in de Braekt's name was removed from the Roll of Practitioners by order of the Full Bench of the Supreme Court of Western Australia on 12 April 2013; Legal Profession Complaints Committee v in de Braekt [2013] WASC 124 (Strike Off Decision).

3. Ms in de Braekt applied for readmission on 22 October 2017; Exhibit 1.

4. On 26 April 2018, the respondent, the Legal Practice Board of Western Australia (Board) declined to issue a compliance certificate (decision under review) and instead provided an information notice pursuant to s 31(2) of the Legal Profession Act 2008 (WA) (LP Act) setting out its reasons; Exhibit 10 (Information Notice).   In short, the Board considered that Ms in de Braekt was not a fit and proper person to be admitted to the legal profession.

5. On 3 May 2018, Ms in de Braekt applied to the Tribunal under s 31(3) of the LP Act for review of that decision.

C. Legislative framework

1. Under s 26(1) of the LP Act, the Supreme Court may admit a person as a lawyer if the Supreme Court is satisfied, amongst other things, that the person 'is a fit and proper person to be admitted to the legal profession'.

2. The Supreme Court may rely on the advice of the Board in determining whether an applicant is a 'fit and proper person'; s 26(2) of the LP Act.

3. Section 30 of the LP Act provides that the Board must advise the Supreme Court whether it considers that:

   a)an applicant is eligible for admission;

   b)an applicant is a fit and proper person to be admitted; and

   c)the application is in accordance with the admission rules.

4. If the Board considers that these requirements are satisfied, it must advise the Supreme Court by filing a compliance certificate; s 31(1) of the LP Act.

5. If the Board refuses to issue a compliance certificate, it must give the Supreme Court and the applicant an information notice setting out its reasons for the refusal; s 31(2) of the LP Act.

6. Section 31(3) of the LP Act provides:

   An applicant may apply to the State Administrative Tribunal for a review of a decision of the Board to refuse to give the applicant a compliance certificate.

7. When dealing with a matter in its review jurisdiction, the Tribunal has the functions and discretions corresponding to those exercisable by the decision-maker, in this case the Board; s 29(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

8. Section 22 of the LP Act requires the Board, when considering whether a person is a fit and proper person to be admitted, to consider each of the 'suitability matters' as defined in the LP Act and any other matters considered relevant.

9. By virtue of s 29(1) of the SAT Act, the Tribunal in exercising its review function must have regard to the same matters as the Board, that is the suitability matters identified in s 8 of the LP Act and to any other matters the Tribunal considers relevant.

10. Section 8 of the LP Act sets out the 'suitability matters':

    (1)Each of the following is a suitability matter in relation to an individual ­

    (a)whether the person is currently of good fame and character;

    (b)whether the person is or has been an insolvent under administration;

    (c)whether the person has been convicted of an offence in Australia or a foreign country, and if so —

    (i)the nature of the offence; and

    (ii)how long ago the offence was committed; and

    (iii)the person’s age when the offence was committed;

    (d)whether the person has engaged in legal practice in Australia ­

    (i)unlawfully; or

    (ii)when not admitted, or not holding a practising certificate, as required under this Act or a previous law of this jurisdiction that corresponds to this Act or under a corresponding law; or

    (iii)if holding an Australian practising certificate, in contravention of a condition of the certificate or while the certificate was suspended;

    (e)whether the person has practised law in a foreign country ­

    (i)when not permitted under a law of that country to do so; or

    (ii)if permitted to do so, in contravention of a condition applicable to the permission;

    (f)whether the person is currently subject to an unresolved complaint, investigation, charge or order under any of the following —

    (i)this Act or a previous Act;

    (ii)a corresponding law or corresponding foreign law;

    (g)whether the person ­

    (i)is the subject of current disciplinary action, however expressed, in another profession or occupation in Australia or a foreign country; or

    (ii)has been the subject of disciplinary action, however expressed, relating to another profession or occupation that involved a finding of guilt;

    (h)whether the person’s name has been removed from ­

    (i)the local roll, and has not since been restored to or entered on a local roll; or

    (ii)an interstate roll, and has not since been restored to or entered on an interstate roll; or

    (iii)a foreign roll;

    (i)whether the person’s right to engage in legal practice has been suspended or cancelled in Australia or a foreign country;

    (j)whether the person has contravened, in Australia or a foreign country, a law about trust money or trust accounts;

    (k)whether, under this Act, a previous Act, a law of the Commonwealth or a corresponding law, a supervisor, manager or receiver, however described, is or has been appointed in relation to any legal practice engaged in by the person;

    (l)whether the person is or has been subject to an order under this Act, a previous Act, a law of the Commonwealth or a corresponding law, disqualifying the applicant from being employed by, or a partner of, an Australian legal practitioner or from managing a corporation that is an incorporated legal practice;

    (m)whether the person is currently unable to carry out the inherent requirements of practice as an Australian legal practitioner.

    (2)A matter mentioned in subsection (1) is a suitability matter even if it happened before the commencement of this section.

11. The general approach to the question of the fitness of a person to be a legal practitioner has been considered in a number of cases.

12. In Legal Profession Complaints Committee v Bachmann [2011] WASC 309 the Court said at [46]:

    … Fitness to practise law requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges:  In re Davis (1947) 75 CLR 409, 420 (Dixon J), Thorpe [43], and Brennan [11]. Fitness to practice is to be decided at the time of the hearing, not as at the time the relevant conduct was entered into: A Solicitor v The Council of the Law Society of New South Wales [21].

13. In Frugtniet v Board of Examiners [2002] VSC 140, Pagone J stated at [10] that the personal qualities necessary to be a fit and proper person for admission to practice include:

    … a commitment to honesty and, in those circumstances when it is required, to open candour and frankness, irrespective of self interest or embarrassment[.]

14. Chief Justice Malcolm, Steytler and Wheeler JJ in Skerritt v Legal Practice Board of Western Australia [2004] WASCA 28 (Skerritt) at [61] said:

    There is, in many of the reported decisions concerning the question of fitness to practice, a concern demonstrated by the courts to ascertain the extent to which the person whose conduct is in question appreciates the seriousness of that conduct, and has insight into its relevance for the person's fitness to practice and insight into its effects on others[.]

D. The applicant's grounds of review

1. In her application, Ms in de Braekt contended that the decision under review was wrong and advanced six grounds of review:

   1)The Board failed to determine whether Ms in de Braekt was eligible for admission as a legal practitioner;

   2)The Board erred in law in that it failed to determine whether there was a significant likelihood of the misconduct (which caused Ms in de Braekt's striking off the Roll of Practitioners) recurring;

   3)The Board erred in law in that it wrongly found traffic offences made Ms in de Braekt unfit to be a legal practitioner;

   4)The Board erred in law in that it wrongly found the amount of time since Ms in de Braekt had been struck off the Roll of Practitioners and the time since the misconduct occurred, was not a relevant factor;

   5)The Board erred in law in that it wrongly found Ms in de Braekt had to have worked in a different field since being struck off the Roll of Practitioners; and

   6)The Board erred in law in that Ms in de Braekt had to have engaged in public work since being struck off the roll in order to be readmitted to practice.

2. These grounds misconceive the nature of the Tribunal's review jurisdiction.  They wrongly focus on errors alleged to have been made by the Board.

3. The Tribunal's task is to consider afresh all of the facts and circumstances and make a decision on the merits of the case; Zampatti v Western Australian Planning Commission [2010] WASCA 149 at [62].

4. A decision on review is given on the evidence presented at the review hearing; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [13]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [23].

5. Although the reasons for the decision under review may throw light on the issues for determination on review, the purpose of a review under s 27(1) of the SAT Act is not to identify error in those reasons. The purpose of the review under s 27(1) is 'to produce the correct and preferable decision at the time of the decision upon review'.

6. Ms in de Braekt bears the onus of establishing that she is a fit and proper person to be admitted to practice.  If the Tribunal is not satisfied, on the evidence presented to it, that Ms in de Braekt is a fit and proper person to be admitted, the application must be dismissed.

7. Two minor matters can be dealt with at this point.

8. When making the decision under review, the Board declined to reach a conclusion both about whether Ms in de Braekt was eligible for admission and about whether the application complied with the requirements of the LP Act.

9. The Board ought to have dealt with eligibility in the Information Notice.  Before the Tribunal, the Board conceded that Ms in de Braekt was eligible for admission.  The Tribunal has considered   Ms in de Braekt's qualifications and the application to the Board and considers that the Board's concession was rightly made.  Ms in de Braekt is eligible for admission.

10. The Board also contended that the application did not comply with the Legal Profession (Admission) Rules 2009 (WA) (Admission Rules) but it excused the non­compliance under r 23 of the Admission Rules; Information Notice at para 7; Exhibit 34. The Tribunal accepts that any non­compliance with the Admission Rules has been excused. Compliance is no longer an issue.

E. The issue for determination

1. If Ms in de Braekt is a fit and proper person to be admitted, then the correct and preferable decision is that a compliance certificate should be issued, since Ms in de Braekt made an application that may be taken to have complied with the Admission Rules, and Ms in de Braekt is eligible for admission.

2. The issue for determination by the Tribunal is therefore whether Ms in de Braekt is a fit and proper person to be admitted to practice.

3. In determining whether a person is a fit and proper person, particular suitability matters will be more relevant in some cases than others.  

4. The matters identified in paragraphs 8(1)(b), (d), (e), (f), (g), (i), (j) and (m) have no application to the facts of the present case. 

5. The remaining paragraphs, s 8(1)(a), (c), (h) and (m), are relevant to Ms in de Braekt's circumstances. There is a degree of overlap between some of these matters.

6. Ms in de Braekt's conduct to the extent that it is prejudicial to the administration of justice is also relevant.  It is convenient to deal with that matter in conjunction with the offences committed by Ms in de Braekt. 

7. Professional conduct by Ms in de Braekt other than the conduct which led to her disqualification is also relevant to whether Ms in de Braekt is a fit and proper person.  We deal with that conduct at the same time as we deal with the disqualifying conduct.

8. Whether Ms in de Braekt is a fit and proper person will be considered by reference to the following:

   a)Ms in de Braekt's prior misconduct;

   b)commission of offences and conduct which is prejudicial to the administration of justice;

   c)good fame and repute; 

   d)the inherent requirements of practice; and

   e)other matters.

9. Once these topics have been considered, the Tribunal will then deal with the grounds advanced by Ms in de Braekt in her application.

F. Ms in de Braekt's prior misconduct, including s 8(1)(h) of the LP Act

Introduction

1. Ms in de Braekt's name was removed from the Roll of Practitioners on 12 April 2013 by order of the Full Bench of the Supreme Court of Western Australia in the Strike Off Decision. 

2. This is a very significant factor in considering whether   Ms in de Braekt is a fit and proper person.  Its impact was the main area of controversy between the parties.

3. Ms in de Braekt argued that the misconduct which led to her name being removed from the Roll of Practitioners was the result of a medical condition, which was undiagnosed at the time.  She contended that her medical condition is now adequately controlled by medication.                  She supported this contention by evidence from Dr Skerritt, her treating psychiatrist.  The medical evidence showed, she argued, that the offending conduct would not be repeated in the future.  She contended that she was otherwise of good character.  Relying on Mungar v Legal Practice Boardof WA [2009] WASC 135 (Mungar), Re Stokes;              ex parte Stokes [2008] WASC 269; (2008) 38 WAR 208 (Stokes) and Skerritt, she contended there was no basis for concluding that she was not a fit and proper person to be admitted. 

General principles

1. The Supreme Court has considered the approach to be taken in considering an application for readmission by a person who has been struck off. 

2. Martin CJ said in Stokes:

   32An applicant who has been previously struck from the roll must bear a much heavier and distinctly different onus to that borne by an applicant seeking admission for the first time.  In the case of an applicant for readmission, the applicant carries the onus of proving that there is no significant prospect of repetition of the conduct of the kind which resulted in the removal of his or her name from the roll - see Gregory v Queensland Law Society Inc [2002] 2 Qd R 583 at [18]. In this context it is worth repeating that the jurisdiction of the court in respect of the maintenance of the roll of practitioners is not a jurisdiction exercised for the purpose of punishing practitioners, but for the purpose of protecting the community (Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at 201 – 202), which depends upon the provision of legal services by practitioners of appropriate character, honesty and integrity.

   33However, if the court can have the requisite confidence that there will be no significant risk of repetition of the misconduct which resulted in the removal of the practitioner's name from the roll, there is a public interest in the restoration of the names of such persons to the roll.  That public interest derives in part from the fact that such persons will be in a position to serve the community by providing legal services, but also from the encouragement of rehabilitation and redemption of those whose conduct has, in the past, prevented them from conducting their profession – see Kirby P in Kotowicz v Law Society of New South Wales, unreported; NSWCA; 7 August 1987.

   34The legal profession appears to be unusually vulnerable to mental illness.  A number of reports have suggested that the rate of mental illness within the legal profession is rather higher than that within the community generally.  Obviously, the community must have confidence in the capacity of those who are admitted to practise law.  The authorities responsible for regulation of the profession, and the court, must be vigilant to ensure that the public is protected from those who lack that capacity for whatever reason, including mental illness.  However, where the court can be satisfied by evidence that the incapacity, which resulted in appropriate steps being taken to protect the community, is no longer present, it will equally be in the interests of the community to take steps to enable the practitioner to resume the delivery of services.

3. These principles were approved and applied in Mungar; see also Pepe v Legal Practice Board of Western Australia [2016] WASC 54 (Pepe).

4. Ultimately, however, the issue is whether the applicant is a fit and proper person to be admitted to legal practice; Dixon v Legal Practice Board of Western Australia [2012] WASC 79 (Dixon) (Full Bench). The conclusion that there is no significant risk of recurrence of the disqualifying conduct is a necessary condition for readmission, but it is not a sufficient condition. This reflects the fact that removal from the Roll of Practitioners is only one of the suitability factors identified in s 8(1) of the LP Act. There may be more than one reason why a person is not a fit and proper person to be a legal practitioner.

The Misconduct Proceedings

1. Ms in de Braekt's name was removed from the Roll of Practitioners as a result of the matters the subject of VR 201 of 2010 (Tribunal's Misconduct Proceedings) brought by the Legal Profession Complaints Committee (Committee).  Those proceedings were primarily concerned with Ms in de Braekt's conduct of proceedings in the Magistrates Court of Western Australia.   

2. The Tribunal's Misconduct Proceedings were heard over six days in November 2011 and February 2012.  Ms in de Braekt represented herself.  She cross­examined witnesses called on behalf of the Committee.

3. On 27 March 2012, the Tribunal found that Ms in de Braekt had engaged in professional misconduct and made directions for the penalty to be determined on the papers; Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (Tribunal's Misconduct Decision). 

4. Details of the conduct which led to Ms in de Braekt's name being removed from the Roll of Practitioners (disqualifying conduct) are as follows. 

5. The first complaint against Ms in de Braekt was that she misled the Magistrates Court on 4 June 2009 and 6 July 2009 when acting for a defendant in criminal proceedings in the Magistrates Court.  She told the Magistrate on both of those dates that she had not received a colour 'digiboard'. 

6. A digiboard is a photoboard of 12 numbered photographs prepared by the police to enable a witness to identify a person in criminal proceedings without the need for an identification parade.  Ms in de Braekt gave evidence before the Tribunal in the Tribunal's Misconduct Proceedings that she had not been served with the colour digiboard.  

7. Ms in de Braekt accepted before the Magistrate that she had been served with a digiboard with black and white photographs, but not a colour one. She made submissions to the Magistrate that a black and white digiboard was not adequate disclosure by the Police because it did not enable her to 'tell the colour hair and other features of the other people in the photographs'. She had in fact been served with a colour digiboard; Tribunal's Misconduct Decision at [30].

8. The second aspect of the Tribunal's Misconduct Proceedings was that Ms in de Braekt made an allegation of actual bias against Magistrate Woods on 4 June 2009 during the course of an application by the prosecutor for an adjournment.  The Tribunal found that there was no reasonable basis for making the allegation. 

9. The Tribunal said (Tribunal's Misconduct Decision at [120]):

   … The making of an allegation of actual bias against a judicial officer, in circumstances where there is absolutely no basis for the allegation, involves conduct that would be regarded as disgraceful or dishonourable by practitioners of good repute and competence and is sufficiently serious to constitute professional misconduct under the LP Act[.]

10. The third element involved different proceedings in the Magistrates Court.  It was alleged that Ms in de Braekt sent emails to a Detective Broadley that were offensive and discourteous.  The exchange related to delivery of a DVD which formed part of the police case against Ms in de Braekt's client.  The Tribunal extracted the relevant portions of the email exchange; Tribunal's Misconduct Decision at [6]:

    •Just because you are a Police officer does not mean you can make up your own laws & impose them on other people.

    •Police aren't above the law, Detective Broadley.

    •So do your job in accordance with the law & stop attempting to bully me into doing things I am not legally obliged to do, & will not do.

    •You do remember the law, don't you?

    •Do you want me to have to explain your ridiculous approach to the Court?

    •Am I going to have to make a complaint about you in order to have that DVD sent to me?

    •It would seem you're not used to a Lawyer standing up against your bullying & unlawful attempts to impose unlawful conditions on the provision of accused's VROI's.

    •You just don't get it do you[?]

    •Have you not ever posted anything before Detective Broadley? and

    •You need to realise Detective Broadley that just because you are a Police Officer does not mean you have limitless powers, nor does it mean that you have the lawful ability to change, alter or add to laws in any way that suits your fancy & enables you to 'get your own way'.

11. The Tribunal accepted that Ms in de Braekt's conduct was offensive and discourteous.

12. The fourth part of the Tribunal's Misconduct Proceedings also involved communication which the Tribunal found to be offensive, threatening and discourteous, but this time to the superior of the officer involved in the earlier email exchange.  Extracts from Ms in de Braekt's email to him were again set out by the Tribunal at [7] and [8] of the Tribunal's Misconduct Decision:

    What a load of absolute rubbish!

    He hasn't made any efforts to serve the materials on me.

    It would also appear that you don't understand the law either.

    The Police can't require me to adhere to any of their 'policies or practices,' or whims.

    I look forward to cross­examining you sometime in the future, in a trial.

13. The final element of the Tribunal's Misconduct Proceedings involved Ms in de Braekt's behaviour towards a security officer at the Central Law Courts Building on 30 October 2008.  On that date there was an exchange between the security officer, Mr Kanapathy, and Ms in de Braekt about Ms in de Braekt's attempt to avoid security screening at the entrance of the Magistrates Court building. 

14. At [192] of the Tribunal's Misconduct Decision, the Tribunal found that Ms in de Braekt behaved in a discourteous and abusive manner to Mr Kanapathy by:

    •saying words to the effect, 'I know you're from Singapore, go back to your country, we don't need people like you here, you prick';

    •calling Mr Kanapathy a 'Singaporean prick' on one occasion;

    •calling Mr Kanapathy 'a prick' on approximately six occasions;

    •making a comment to the effect that Mr Kanapathy has 'short man's syndrome' on two occasions; and

    •calling Mr Kanapathy a 'short prick' on one occasion.

15. Mr Kanapathy gave evidence about this incident.  It was supported by independent evidence from Mr Wood, Dr Dawkins and Ms Morgan.

Credibility

1. In the Tribunal's Misconduct Decision, the Tribunal made adverse findings about Ms in de Braekt's credibility.  At [92], the Tribunal said:

   .. As we accept Constable Squire's and Senior Constable Neas' evidence, and as, on Ms in de Braekt's evidence, there is no possibility that disclosure documents placed into the post box of her office would have gone missing, we do not accept Ms in de Braekt's denial of having received the colour digiboards.  Furthermore, in light of the Tribunal's findings above and below in relation to aspects of Ms in de Braekt's evidence, the Tribunal has significant doubts as to her truthfulness and credibility.

2. The Tribunal considered that Ms in de Braekt had complained about the lack of a colour digiboard for an ulterior purpose.  The Tribunal said at [94] in the Tribunal's Misconduct Decision:

   While it is unnecessary for the Tribunal to come to a finding in relation to Ms in de Braekt's motivation for misleading the court on 4 June 2009 and 6 July 2009, it appears that she did so on 4 June 2009 in order to support an application for the proceeding against APC to be dismissed on the basis of the failure of the police to provide disclosure of the digiboards. … As Ms in de Braekt conceded at the hearing on 6 July 2009, the digiboard identifications were not in issue, because of the admissions made in the video record of interview … She therefore did not require the colour digiboards for any legitimate forensic purpose[.] 

3. The Tribunal also said at [109] in the Tribunal's Misconduct Decision:

   … The Tribunal therefore finds that Ms in de Braekt's evidence that Magistrate Woods indicated with her head that Ms in de Braekt was to take a seat at the back of the courtroom when, on four occasions, she told her to 'have a seat', was not truthful and, indeed, appeared to have been made up on the spot.

4. The Tribunal did not accept Ms in de Braekt's evidence on a number of occasions; Tribunal's Misconduct Decision at [68], [83], [109], [134], [146], [178], [182] and [191].

Penalty

1. When handing down the Tribunal's Misconduct Decision, the Tribunal established a timetable for the provision of submissions by the parties in relation to penalty.  Ms in de Braekt sought extensions of time within which to provide those submissions but, ultimately, did not file any.

2. On 25 May 2012, the Tribunal made orders that a report be transmitted to the Supreme Court with a recommendation that the name of the practitioner be removed from the roll of persons admitted to the legal profession; Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S) (Tribunal's Misconduct Penalty Decision).  The Tribunal also suspended Ms in de Braekt's local practising certificate.  Ms in de Braekt was ordered to pay the Committee its costs of the proceedings fixed at $51,291 by 22 June 2012.

3. The Tribunal said in the Tribunal's Misconduct Penalty Decision at [26] and [27]:

   26… that, in the circumstances of this case, the finding that Ms in de Braekt misled the Magistrates Court warrants a conclusion that she is not a fit and proper person to remain a legal practitioner.

   27… while the other four findings of unprofessional conduct would not individually warrant the striking off of the practitioner, collectively, the Tribunal's findings in relation to those grounds demonstrate a character and course of conduct on the part of the practitioner which is inconsistent with the privileges of practice as a member of the legal profession[.]  

4. The Tribunal commented in the Tribunal's Misconduct Penalty Decision at [41] ­ [43]:

   Throughout the proceedings, Ms in de Braekt has demonstrated an almost complete lack of insight and understanding as to the impropriety of her conduct.  Even in relation to ground (b) (being persistently discourteous and offensive to Magistrate Woods), ground (c) (sending emails to Detective Constable Broadley which were offensive and discourteous) and ground (d) (sending an email to Detective Inspector La Spina which was offensive, discourteous and threatening), in respect of which there could be no question as to the facts, which were clear from the recording of the hearing, supplemented by the transcript, and Ms in de Braekt's emails to the police officers, Ms in de Braekt contended throughout that there was no impropriety in her conduct, other than a late and qualified statement in her final submissions on 23 February 2012 that 'now that I have realised that perhaps it was discourteous for me to continue to say, ''Excuse me, could I please finish my submissions"', to her Honour (T:85.6, 23.02.12).  However, even then, Ms in de Braekt continued to demonstrate a lack of insight into her conduct, because she said, in relation to making an apology, 'although I shouldn't have had to do that'.  She also still maintained that she 'should have been allowed' to make further submissions to her Honour.  She then offered to make an apology as follows:

   But anyway, in any event, I shouldn't have continued to say that.  I realise that now and I'm happy to apologise.  In fact, I will. (T:85.6­85.7, 23.02.12)

   However, this offer of an apology was made for the first time at the conclusion of the hearing, more than two and a half years after the conduct in question.

   In relation to ground (a) (misleading the Magistrates Court), the practitioner demonstrated a profound lack of insight as to the impropriety of her conduct by giving false evidence to the Tribunal in relation to a number of matters.

Related Supreme Court Proceedings

1. After the Tribunal's Misconduct Penalty Decision, the Committee applied to remove Ms in de Braekt's name from the Roll of Practitioners; LPD1 of 2012 (Strike Off Proceedings). 

2. The Strike Off Proceedings were set down for hearing before the Full Court of the Supreme Court on 26 October 2012.

3. On 22 October 2012, Ms in de Braekt commenced proceedings in the Court of Appeal (Misconduct Appeal) seeking an extension of time in which to lodge an appeal from the decision of the Tribunal.  

4. Ms in de Braekt did not appear at the hearing of the Strike Off Proceedings on 26 October 2012, nor was she represented.  The Full Court deferred determination of the Strike Off Proceedings until after the Misconduct Appeal had been resolved.

5. The Misconduct Appeal was dismissed on 24 January 2013 after Ms in de Braekt failed to comply with procedural time limits; in de Braekt v Legal Profession Complaints Committee [2016] WASCA 220 (Misconduct Appeal Decision) at [19].

6. The Full Bench then handed down the Strike Off Decision.                  It ordered that Ms in de Braekt's name be removed from the Roll of Practitioners. 

7. The Full Court accepted that the two incidents of misleading the Magistrates Court warranted removal of Ms in de Braekt's name from the Roll of Practitioners; Strike Off Decision at [32]. It agreed with the Tribunal that the incidents of discourtesy taken together also warranted removal of her name from the Roll of Practitioners; Strike Off Decision at [34].

8. On 3 October 2016, more than three years after the Strike Off Decision, Ms in de Braekt applied for an extension of time in which to file her case in the Misconduct Appeal.  The application was supported by a report from Dr Skerritt dated 30 August 2016 (the same report was tendered to the Tribunal in these proceedings).  In dismissing the application for an extension of time, the Court of Appeal said; Misconduct Appeal Decision at [34]:

   In her affidavit sworn 30 June 2016, the appellant [Ms in de Braekt] deposed, amongst other things, in effect that:

   1.She 'mistakenly' recorded her address details in the appeal notice as a post office box address in Victoria Park WA.  She no longer had this post office box, and thus did not receive the registrar's notice to attend before Pullin JA on 10 January 2013.  This only came to her knowledge after inspecting the Court of Appeal file in January 2016.

   2. She did not receive a copy of the springing order made by Pullin JA on 10 January 2013.  This order was forwarded to the post office box she provided as her address in her appeal notice (see above), which she no longer held, and she only first saw Pullin JA's order in January 2016. 

   3.She knew the appellant's case had to be filed within 35 days of the appeal having been commenced but could not do this herself because of mental illness ('chronic depression/nervous breakdown') and could not engage and instruct a lawyer to do this on her behalf. 

   4. Between January 2013 and July 2014, she continued to be unable to engage and instruct a lawyer due to her mental illness and impecuniosity.  She says that the nature of the proceedings and volume of documentation meant that lawyers could not act on her behalf without instructions and it was unreasonable, if not impossible, to expect pro bono legal representation. 

   5.On 17 August 2014, her house was accidentally set on fire and documents related to the primary proceedings, which were necessary to complete the appellant's submissions and case, were destroyed.  She says that, even if she did have all the documents related to the appeal, she was not in a fit state to do anything with them due to trauma and dislocation suffered from the fire. 

   6.It was not until October 2015, when her house was once again habitable and when she received an offer for pro bono legal representation from her present counsel in a Federal Circuit Court matter, that she was able to deal with legal matters again.  It was, however, 'impossible' for her to 'analyse' the primary decision until January 2016 onwards.

   7.In October 2015, she attempted to obtain copies of documents she had lost in the fire but, due to impecuniosity, was unable to get copies from the Tribunal.  In March 2016, when she was no longer impecunious, she made another request to the Tribunal for replacement copies of the documents, for which she was successful, and obtained copies of exhibits on 18 March 2016.  She immediately commenced analysis of these documents and forwarded a draft version of her submissions to her counsel on 2 April 2016.

   8.She has been attending medical appointments and interacting with doctors since the second half of 2012 in relation to her mental and other health problems.

9. As to the assertion that Ms in de Braekt had not received the notice to attend before Pullen JA, the Court said; Misconduct Appeal Decision at [51]:

   … The assertions that she did not receive the registrar's notice to attend before Pullin JA on 10 January 2013, or Pullin JA's order of that date, are of no assistance to the appellant.  Even if those assertions were taken at face value, it was incumbent upon the appellant (a legal practitioner at the time) to give a proper and 'unmistaken' address for service.  Also, her assertions cannot be accepted at face value when the evidence indicates that she was corresponding with the court using a particular email address, and the registrar's notice to attend before Pullin JA, and Pullin JA's order, were sent by the court to that email address.  Accordingly, we are not satisfied on the evidence that she did not receive notice by email[.]

The Pro Used Proceedings

1. In addition to the Tribunal's Misconduct Proceedings,   the Committee had previously brought disciplinary proceedings in the Tribunal against Ms in de Braekt; VR 88 of 2009 (Pro Used Proceedings).

2. The Pro Used Proceedings  arose out of Supreme Court proceedings in which Ms in de Braekt acted on behalf of Pro Used Pty Ltd                  (Pro Used), defending winding up proceedings brought against it in the Supreme Court of Western Australia by Smart Transit Pty Ltd.                The relevant events occurred in 2007.  The Tribunal's decision in the      Pro Used Proceedings was made on 13 January 2011; Legal Profession Complaints Committee and in de Braekt [2011]WASAT1 (Pro Used Decision).

3. The Board referred to and relied on the Pro Used Decision in its submissions in the present proceedings. 

4. Disciplinary proceedings which do not result in an applicant being removed from the Roll of Practitioners do not fall within s 8(1)(h) of the LP Act. However, disciplinary proceedings against an applicant which do not attract the ultimate sanction are relevant to s 8(1)(a) and 8(1)(m) of the LP Act. Misconduct which does not result in a practitioner being struck off may show a broader pattern of conduct or reveal the character of an applicant for readmission. Such misconduct may also be relevant to showing whether the conduct that did result in striking off was more or less likely to recur. The Pro Used Decision is relevant to the present application.

5. Ms in de Braekt contended that the Tribunal should not have regard to the Pro Used Decision because the Board did not have regard to the Pro Used Decision when making the decision under review.  She said that it was unfair for the Tribunal to now consider it.

6. The Board, in these proceedings, made it plain that it proposed to rely on the Pro Used Decision.  Ms in de Braekt had adequate notice that the Pro Used Decision formed part of the case that she would have to meet at the hearing before this Tribunal.  It is open to the Tribunal to have regard to material that was not before the Board when it made the decision under review.  It is not unfair for the Tribunal to take it into account in these proceedings.

7. Ms in de Braekt also contended that the Tribunal, as presently constituted, should decline to take the Pro Used Decision into account, because the Tribunal in the Pro Used Decision was not properly constituted.  

8. Section 250A of the LP Act requires that the Tribunal be constituted by at least one person who is not a 'legal practitioner'. 'Legal practitioner' is defined in s 3 of the LP Act to mean a person who holds a current practising certificate and whose principal place of practice is in Western Australia. For the Pro Used Decision, the Tribunal was constituted by His Honour Justice Chaney, Senior Sessional Member Odes QC and Member Child. Ms in de Braekt contended that Ms Child had been admitted as a practitioner; Applicant's Closing Submissions at para 34. However, there was no evidence before the Tribunal, as presently constituted, that Ms Child held a legal practising certificate at the time of the Pro Used Decision.

1. Whether or not Ms Child was a 'legal practitioner' within s 250A of the LP Act, the Pro Used Decision has not been set aside by the Supreme Court. The Tribunal is entitled to treat the decision as valid until it has been set aside by the Court. In any event, the Pro Used Decision recounts events which are relevant to the current proceedings and sets out substantial extracts from the correspondence between them.

2. The Pro Used Decision involved three allegations against Ms in de Braekt. 

3. The Committee alleged, and, after a hearing the Tribunal accepted, that Ms in de Braekt had acted incompetently in the course of legal practice in that she had applied to the Supreme Court to set aside a statutory demand where more than 21 days had elapsed since the date of service of the statutory demand and a winding up petition had been served and defended the winding up petition on grounds that had no prospects; Pro Used Decision at [5], [99] and [100].  The Tribunal did not accept the Committee's second allegation that Ms in de Braekt should not have accepted the instructions at all.

4. The Tribunal found that Ms in de Braekt had made allegations of impropriety, unsatisfactory professional conduct or professional misconduct about the practitioner acting for the other side.  She alleged that the commencement of the winding up proceedings by the creditor were 'imprudent and improper'.  The Tribunal accepted that Ms in de Braekt believed that there was a basis for those allegations, but the Tribunal found there was not. 

5. On 1 September 2011, the Tribunal reprimanded Ms in de Braekt.  It ordered that she pay:

   a)Pro Used $22,334.60;

   b)the Board $3,000; and

   c)the Board's costs of $17,357.

6. In the Pro Used Decision, the Tribunal said at [139]:

   In these reasons we have set out at some length the communications between Ms in de Braekt and Mr Gough, and relevant portions of affidavits made or prepared by Ms in de Braekt.  Those documents reveal a troubling tendency in this litigation for Ms in de Braekt to write in intemperate and offensive terms in relation to the opposing solicitor and the opposing client.  As we have found, a number of those communications went beyond the bounds of acceptable professional conduct.  In the proceedings before the Master, he cautioned Ms in de Braekt 'to be extremely careful in relation to your dealings with other solicitors'.  That is advice with which we agree.  The interests of clients and the proper administration of the law are served by practitioners extending to each other proper professional courtesy.  Resort to personal abuse leads to a loss of the objectivity that is necessary for proper legal representation, and results in distraction from the real issues in the client's dispute.  This case is a good example of that proposition.

The Kanapathy Proceedings

1. One allegation in the Tribunal's Misconduct Proceedings was that Ms in de Braekt behaved in a discourteous and abusive manner towards a Mr Kanapathy, a security officer at the Central Law Courts.

2. Proceedings were subsequently brought in the Federal Magistrates Court (FMC), as the Federal Circuit Court was then known, against Ms in de Braekt (PEG 192 of 2010) (Kanapathy Proceedings) arising out of this incident.  The Kanapathy Proceedings alleged unlawful acts in contravention of s 18C of the Racial Discrimination Act 1975 (WA) (Racial Discrimination Act) on the basis of Mr Kanapathy's national origin.

3. The Kanapathy Proceedings do not fall within s 8(1)(c) of the LP Act but they are relevant to the likelihood of a repeat of the disqualifying conduct, to Ms in de Braekt's respect for the law and to her competence. It is convenient to set out the history of the Kanapathy Proceedings at this stage.

4. There were difficulties with service of the application in the Kanapathy Proceedings.  It appears that those efforts included attempts to deliver the process to Ms in de Braekt's office, calling the telephone number shown at that location and sending the process by registered post with a tracking facility.  It was necessary for Mr Kanapathy to seek substituted service of the application on Ms in de Braekt when efforts by Mr and Mrs Kanapathy to effect service personally were unsuccessful.  Orders were made for substituted service; Kanapathy v in de Braekt [2010] FMCA 1015.

5. It appears, however, that Mr Kanapathy did not file an affidavit of service in a timely fashion and the matter came before the FMC again on 31 January 2011.  Ms in de Braekt sent an email to the Court that day disputing that she had been served, although it appears from the judgment of the FMC that she was aware of the proceedings at that stage; Kanapathy v in de Braekt (No 2) [2011] FMCA 51. That judgment set out the following passage from an email sent by Ms in de Braekt to the Court (at [8]):

   Lastly, I was most alarmed to learn by reading His Honour Federal Magistrate Lucev's reasons for decision of 13th December 2010, that Mr Kanapathy & his wife apparently visited my office.  I do NOT want Mr Kanapathy or his wife, anywhere near me or my office.  He has made scandalous & wicked accusations against me, which he well knows to be a complete fabrication.  Neither Mr Kanapathy nor his wife have permission to attend my office or enter it, or attempt to do so, & if they ever attempt to do so again, I will immediately call the Police & take out a misconduct restraining order against them both. How outrageous that they both dare attend my office.

6. This email was sent after the Tribunal's Misconduct Decision when Ms in de Braekt was aware that independent evidence about her confrontation with Mr Kanapathy had been given by three independent witnesses and accepted by the Tribunal.

7. Mr Kanapathy served a notice to admit facts on Ms in de Braekt.  Ms in de Braekt did not respond to the notice to admit facts (Kanapathy v in de Braekt (No 4) [2010] FMCA 1015 (Kanapathy v in de Braekt (No 4)) at [11] ­ [15]). This had the consequence that she was taken to admit the matters set out in the notice; Kanapathy v in de Braekt (No 4) at [16]. The facts admitted included the findings made by the Tribunal in the Tribunal's Misconduct Proceedings, set out at [61] in these reasons. The FMC acted on the admissions made by Ms in de Braekt. Ms in de Braekt did not attend the hearing.

8. There was evidence which the Court accepted, that Mr Kanapathy saw his general practitioner because he was so upset at the abuse and was referred to a psychologist and clinical psychologist; Kanapathy v in de Braekt (No 4) at [28]:

9. The FMC said at [52] and [53] in Kanapathy v in de Braekt (No 4):

   [This] is a case of a person abused in a public place whilst carrying out duties designed to ensure public safety and the protection of a court building, and the occupants, invitees and users of that building, in circumstances where the abuse was levelled by a legal practitioner[.]

   Doing the best that it can in all of the circumstances, the Court considers that an award of general damages of $10,500 is appropriate.

10. The FMC assessed compensation in respect of medical expenses at $2,000; Kanapathy v in de Braekt (No 4) at [56]. The FMC ordered that Ms in de Braekt pay Mr Kanapathy a total of $12,500 by 23 October 2013 (Kanapathy Orders).  The judgment has not been satisfied.

11. On 19 October 2017, more than four years after the Kanapathy Orders were made, Ms in de Braekt applied to set aside the Kanapathy Orders and to extend the time for her to respond to the notice to admit facts; Exhibit 13.  The FMC dismissed this application on 31 March 2017; Exhibit 12.

12. On 10 December 2018, Ms in de Braekt filed an application seeking orders setting aside the decision made on 31 March 2017.  Ms in de Braekt provided the Tribunal with a copy of the application (Exhibit 12), but not her supporting affidavit of 10 December 2018.  Her application was listed for a directions hearing in the FMC on 15 January 2019, which was before the hearing in these proceedings.  The Tribunal was not provided with any information about the outcome of that application.

The medical evidence

1. Ms in de Braekt relied on the evidence of Dr Skerritt, a very experienced psychiatrist. 

2. It appears that Ms in de Braekt initially consulted Dr Skerritt in connection with the Misconduct Appeal ([78] of these reasons).  He became her treating psychiatrist in February 2017; Exhibit 20.

3. In his initial report of 30 August 2016, he diagnosed a 'major depressive disorder of the melancholic type and panic disorder often approaching agoraphobia', which he said had 'been present in a fluctuating way since she was 17 but most particularly since about 2011'. 

4. Dr Skerritt subsequently changed, or perhaps refined his diagnosis of Ms in de Braekt's medical condition.   Up until then, only the depressive part of the illness had presented; Exhibit 21; ts 31, 15 January 2019. 

5. The link between Ms in de Braekt's mental condition and her earlier misconduct was explicitly addressed in three of Dr Skerritt's reports, those of 30 August 2016, 1 December 2016 and 2 October 2018; Exhibits 18, 19 and 24.

6. In his report of 30 August 2016, Dr Skerritt said that he saw Ms in de Braekt 'with respect to the possibility that mental illness was a contributor to a number of legal misjudgments which have occurred more or less since 2011'; Exhibit 18.  He also said:

   Things again became unstuck with the sequence of events beginning about 2009.  She described a dispute about delivery of some legal materials by the police which she was prepared to defend.  In this period it would appear that her legal practice on behalf of other people was impaired and she mentioned an uncharacteristic episode of rudeness to a magistrate and of alleged racist comments to a court attendant (which she is also prepared to defend).  The task was then to defend herself which required arrangement of the several documents etc.  The depression was such that her thought processes were so slow that she could not do it and the anxiety was such that she could not bring herself to appear in court.  Thus various appeals (about which I will not go into details) lapsed because of her non-appearance and non-submission of the appropriate documents.

   I think that she was unwell throughout this period …

   …

   The particular shortcomings of failing to attend court and submit documents can easily be explained in terms of these diagnoses.  The depression produces a great dealing of slowing of the thought processes.  Such cognitive decline in depression is a subject of a great deal of research at the present time and is potentially reversible.  The anxiety presents itself typically as panic attacks in certain situations and, for example, led her to be afraid to get out of her car when she should have been attending court.  I think that these areas of symptoms explain all of the unfortunate events of the last several years.

   Irritability leading to inappropriate communications in the legal system is also a common feature of the anxiety and depressive disorders which she regrets later.

   You ask the very reasonable question that, if she can be excused these shortcomings because of illness, which I believe to be entirely justifiable, how would she be able to practise law given the nature of her illness. … I do think that … with very thorough treatment and regular supervision that she could be restored to her ability to practise law.

   (Original emphasis)

7. In his report of 1 December 2016, Dr Skerritt said:

   In reply to your general enquiry about the extent of her mental state preventing her from prosecuting her appeal against disciplinary findings I think the answer is quite definite that it did and I believe I described this in my previous report.  At this time she was suffering from quite severe depression.  This causes a general slowing of thought processes made even worse by the coincidence of anxiety to the point of panic.

   (Exhibit 19)

8. Dr Skerritt set out one of the questions he had been asked, 'To what extent does Ms in de Braekt's removal from legal practice cause, prolong or magnify her major depressive disorder, or any of the symptoms associated with it?'  Dr Skerritt answered the question:

   All of the sad events relating to her removal from practice and the reasons for it were both the (sic) caused by her symptoms and in turn worsened them.

9. In his report of 21 July 2017, Dr Skerritt said:

   At the present time I think that she is in a normal state of mood unaffected by her illness.  I believe that she could return to practice now.

10. In his report of 2 October 2018,  Dr Skerritt said:

    I am requested to make some comments on the decision of the Legal Practice Board of 26th of April 2018.  With respect, I think that it represents a somewhat faulty view of Ms In de Braekt's mental illness.  It has been present in various manifestations through her life and I think that all the matters considered to represent bad legal practice were aspects of different manifestations of the illness as it varied.

    (Exhibit 24)

11. Dr Skerritt's report of 2 October 2018 sets out a question posed to him:  Does it remain your opinion that Ms in de Braekt is fit to return to practice?  Dr Skerritt responded unequivocally.  He said, 'yes'. 

Analysis of this suitability factor

The nature of the disqualifying conduct

1. The evaluation of the risk presented by readmission of an applicant may take into account both the seriousness of the disqualifying conduct and the risk of it happening again.

2. Section 8(1)(h) of the LP Act only applies where there has been conduct which was sufficiently serious to warrant striking off and that the prospect that such conduct will be repeated is unacceptable. However, there is a spectrum of behaviour which warrants striking off and within that spectrum, some conduct is more serious than others.

3. Ms in de Braekt's disqualifying conduct had two aspects.

4. First she misled the Court.  Intentionally misleading a court is very serious.  It goes to the heart of a practitioner's duty to the Court.                    It undermines the efficient operation of the Court, which proceeds on the basis that a practitioner's word can be relied on.  Misleading the Court will usually result in a practitioner being struck off.  Ms in de Braekt misled the Court on two separate occasions.

5. Ms in de Braekt's conduct was aggravated by the purpose for which she misled the Magistrates Court.  Her false statements were a precursor to an improper application to dismiss the proceedings against her client for failure to provide the colour digiboard. 

6. It may be accepted however, that this conduct is not quite as serious as 'extreme transgressions' such as perjury across more than a decade (Dixon) or stealing trust funds (Mungar).

7. Ms in de Braekt was also unprofessionally discourteous. Although professional courtesy is an essential ingredient of an adversarial system, the Full Court accepted that, in many cases, discourtesy would not warrant removal from the Roll of Practitioners; Strike Off Decision at [28]. This component of the disqualifying conduct is less serious than misleading the court.

Similar conduct

1. Other conduct by Ms in de Braekt was similar to the disqualifying conduct. 

2. Ms in de Braekt gave evidence to the Tribunal during the hearing of the Tribunal's Misconduct Proceedings which the Tribunal found was not true. 

3. In the Pro Used Proceedings, Ms in de Braekt was found to have made serious allegations about a fellow practitioner in 2007, without a proper foundation. 

4. Ms in de Braekt denied that she had been served with documents in the Kanapathy Proceedings and the Misconduct Appeal which the FMC and the Court of Appeal did not accept. 

5. Her comments about Mr Kanapathy's attempts to effect service of originating process in the Kanapathy Proceedings were rude and inflammatory.

6. The fact that Ms in de Braekt made statements that were false or without foundation on a number of occasions over the years increases the risk that such conduct will occur again in the future.

Dr Skerritt's evidence

1. Ms in de Braekt contended that the medical evidence established that the misconduct would not recur because the medical condition which led to the misconduct is now controlled by medication. 

2. The Tribunal does not accept this proposition.  The Tribunal is not satisfied that there is no significant prospect of repetition of the conduct which resulted in the removal of Ms in de Braekt's name from the Roll of Practitioners.  This conclusion derives from the following matters:

3. First, the Tribunal has reservations about the factual basis for Dr Skerritt's evidence.

4. Dr Skerritt was first consulted in the context of Ms in de Braekt's application for an extension of the time limit for providing a responsive case in the Misconduct Appeal.  This involved her failure to provide documents in time.  Dr Skerritt specifically refers to these matters in his letter of 30 August 2016; Exhibit 18, page 2.  

5. However, Dr Skerritt did not refer to the finding that Ms in de Braekt misled two magistrates on two separate occasions about service of the digiboard.  Dr Skerritt did not refer to the findings by the Tribunal in the Tribunal's Misconduct Proceedings that she gave untruthful evidence to the Tribunal.  He refers to alleged racist comments to a court attendant, but Ms in de Braekt's comments to Mr Kanapathy were not confined to remarks referring to Mr Kanapathy's Singaporean background.  Ms in de Braekt was also unprofessionally rude to police officers.  It may be accepted that Dr Skerritt need not set out the misconduct chapter and verse but his account suggests he was not informed of significant features of Ms in de Braekt's conduct.

6. There are also issues with dates.  Dr Skerritt also said that Ms in de Braekt's disorder had 'been present in a fluctuating way since she was 17, but most particularly since about 2011'; Exhibit 18 page 3.  Dr Skerritt said that things became unstuck with events beginning about 2009.  He said that her condition was 'in progress' in about 2011 (ts 27, 15 January 2019).  However, the Pro Used Proceedings involved events in 2007. 

7. The conclusion that not all of Ms in de Braekt's unsatisfactory conduct occurred when her condition was symptomatic is consistent with other evidence given by Dr Skerritt.  In November 2011 and February 2012, Ms in de Braekt represented herself in the Tribunal's Misconduct Proceedings.  When this was put to Dr Skerritt, he said 'the illness was obviously in a state of some remission at that particular time if she was able to perform that competently'.  The Tribunal found that Ms in de Braekt gave false evidence during the course of the hearing of that matter at a time when Ms in de Braekt's illness was in this state of remission.  Ms in de Braekt's untruthful evidence at the hearing of the Tribunal's Misconduct Proceedings would not, therefore, have been caused by her condition.

8. It appears that Dr Skerritt was not given a full medical history by Ms in de Braekt.  Dr Skerritt indicated that Ms in de Braekt had not attended or interacted with doctors concerning mental illness in the past; ts 44, 15 January 2019.   This is inconsistent with the account of Ms in de Braekt's affidavit given in the Misconduct Appeal Decision, which referred to treatment in 2012.   This inconsistency was put to          Dr Skerritt in cross­examination.  Dr Skerritt stated that the thing that stuck in his mind was a reference to treatment in Sir Charles Gairdner Hospital, but it appears from Dr Skerritt's report of 26 June 2017 that Ms in de Braekt was admitted to Sir Charles Gairdner Hospital in February and March 2017; ts 44, 15 January 2019; Exhibit 21.

9. Dr Skerritt said that the important thing, from his point of view, was that 'whatever was tried didn't work, or she had refused it'; ts 44,                 15 January 2019; see also ts 43, 15 January 2019.  From the Tribunal's point of view, it would be relevant to know whether there had been treatment which was unsuccessful or why treatment had been refused.

10. Ms in de Braekt did not give evidence.  There was no first­hand account of the progress and symptoms of Ms in de Braekt's psychiatric condition.  The Tribunal has been left with a second­hand account of how Ms in de Braekt's condition affected her ability to practice.

1. These matters leave the Tribunal with reservations about the accuracy of the medical history given by Ms in de Braekt to Dr Skerritt and hence, the reliability of his opinion.

2. Secondly, Dr Skerritt gave evidence that he did not consider that depression had any particular effect on a person's honesty or truthfulness; ts 53, 15 January 2019.  He said it did not make a person any more likely to lie than otherwise. 

3. It follows that:

   a)the occasions on which Ms in de Braekt misled the Magistrates Court or gave false evidence to the Tribunal were not caused by her condition; and

   b)treatment of her condition would not reduce the risk that she would again make false statements to a Court or Tribunal.

4. It appears that Ms in de Braekt's illness may have had a greater effect on the other element of the disqualifying conduct, Ms in de Braekt's rude and unprofessional communication.  Dr Skerritt also said that anxiety and depression might be manifested in irritability which might lead to 'inappropriate communications' by Ms in de Braekt which, according to Dr Skerritt's report of 30 August 2016, 'she regrets later'.  Accepting that the initial discourtesies and rudeness to the police officers and Mr Kanapathy was spontaneous conduct resulting from Ms in de Braekt's medical condition, she had ample opportunity to apologise for her conduct when the 'heat of the moment' had subsided and when the episodic symptoms had abated. 

5. A third difficulty with Dr Skerritt's opinion is that the effectiveness of his treatment of Ms in de Braekt has not been tested in practice.  Obviously, Ms in de Braekt could not work as a legal practitioner before she was readmitted, but work in a different role, say as a para-legal or an employee relations adviser, would have provided some evidence of her ability to function in a 'real world' work environment.  Work of this nature would have given the Tribunal more confidence in the reliability of Dr Skerritt's prognostication.

6. Finally, it is important to recognise the limits of Dr Skerritt's evidence.  His evidence directed to the question whether Ms in de Braekt was 'medically fit' to practice.  Quite properly, he did not express an opinion about whether she was a 'fit and proper person to be admitted to the legal profession'; ts 42, 15 January 2019.

Lack of insight and remorse

1. In the Strike Off Decision, the Full Court said at [35]:

   [Ms in de Braekt] has not demonstrated any appreciation for the significance of her misconduct, and has maintained her assertions that she did not mislead the court, and that the other findings of misconduct were unjustly made. The practitioner's lack of appreciation of the impropriety of her conduct, and apparent lack of any insight into the reasons for her misconduct significantly increase the risk of its recurrence. 

2. Ms in de Braekt argued that she did have insight. 

3. In oral submissions, Ms in de Braekt said, speaking of herself in the third person:

   She has demonstrated contrition, regression, remorse, insight because she now knows what mental illnesses she has had all her life and how they need to be treated, and what signs she needs to look out for in case there might be any relapse.  And go straight back to Professor Skerritt.  Things she needs to do to avoid that happening.  That’s part of accepting responsibility for past acts.

   (ts 15 ­ 16, 27 February 2019)

4. It is clear that Ms in de Braekt appreciates that ongoing treatment is necessary for her to function effectively.

5. Ms in de Braekt also referred to the section of her application to the Board entitled 'Applicant's Strategic Plan for Return to Work'; ts 15, 17 ­ 20, 27 February 2019; Exhibit 1 page 17.  That section of her application shows that Ms in de Braekt is aware of the need to manage her working arrangements so that she is supported in the workplace.

6. These are valuable insights for Ms in de Braekt.  However, her insights into the management of her condition and workplace do not extend to the moral quality of her past conduct and its impact on others, particularly Mr Kanapathy. 

7. Ms in de Braekt relied on her application for admission; Exhibit 1, page 10.  The application says that she now understands that 'the manner in which she behaved in all of the 5 instances of misconduct was unacceptable, & the surrounding circumstances should never have arisen'.  She said 'the applicant is ashamed & embarrassed by how she previously behaved (in the 5 instances of misconduct).  It was a most disappointing detraction from the remained (sic) of her work (criminal advocacy), to which she unswervingly dedicated [sic]'; Exhibit 1, page 11.

8. These statements do not reflect the seriousness of her conduct.  They do not show any recognition for the consequences of her conduct, particularly the impact on Mr Kanapathy.

9. Ms in de Braekt's conduct did not demonstrate any remorse.

10. The Kanapathy Orders had not been complied with, as at the date of the hearing.  

11. Ms in de Braekt submitted  that her failure to comply with the Kanapathy Orders was not relevant because:

    a)she had made an application dated 10 December 2018 seeking to set aside the orders of the FMC made on 31 March 2017;

    b)the proceedings were not taken into account by the Board in the decision under review; and

    c)the manner in which she spends her money is not a matter relevant to whether she should be admitted.

    (Applicant's Closing Submissions at paras 162 ­164)

12. While Ms in de Braekt may spend her money as she sees fit, the fact that she chose not to spend any of it satisfying the Kanapathy Orders indicates that she had no remorse for her conduct towards him.  

13. Ms in de Braekt continues to dispute the validity of the Kanapathy Orders.  This demonstrates a lack of insight into the nature of her conduct and remorse for it:  Skerritt at [66].

14. Further, Ms in de Braekt has made only small contributions to reduce the costs order in favour of the Committee arising out of the Tribunal's Misconduct Proceedings.  The evidence about her financial position is discussed further below.

Recent conduct

1. Dr Skerritt accepted that conduct since mid­2016 could not be attributed to her medical condition, since he contended that Ms in de Braekt's condition had been successfully controlled since mid­2016. 

2. The Board identified a number of matters associated with the application that reflected adversely on her.

3. The Board raised concerns about the information provided by Ms in de Braekt about her financial position.  In an email to the Committee dated 16 September 2018, Ms in de Braekt said that she was 'unable' to make repayments on account of her liability for the costs of the Tribunal's Misconduct Proceedings at anything more than $50 per month; Exhibit 33.  She said that the 'only possible outcome' of enforcement proceedings against her would be an order to pay that amount.  However, in her application for readmission made on 22 October 2017, she said that she had 'recently sold her home in order to raise funds to financially support her return to practice' and that those funds 'are capable of sustaining the applicant for up to 18 months'; Exhibit 1, pages 17 and 18.  Ms in de Braekt's house was sold on 15 August 2017; Exhibit 50.  She had a half interest in the property.  There is no evidence how much equity she had in the property but it appears that it was enough to sustain her for 18 months and that she had the funds from the sale when she told the Committee on 16 September 2017 that she was unable to make repayments.

4. In her application to the Board, Ms in de Braekt's 'Summary of Personal background/Particulars' indicated that she achieved 'Highest Distinctions in all units except 1' in her Master of Industrial Relations; Exhibit 2.  However, the statement of academic record and cross­referencing to the explanation of the terms used by the University shows that Ms in de Braekt did not achieve any of the 'highest distinctions' and achieved six distinctions out of twelve units studied; Exhibit 17 and 74.  Her submissions appears to accept the discrepancy but say that it was a 'transposition error'.  It is not clear what 'transposition' was involved.

5. The Board also complained about Ms in de Braekt's email to the Tribunal on 27 August 2018; Exhibit 51.   In that email, Ms in de Braekt said:

   Mr Elliott has been representing me in this matter.

   I understand Mr Elliott is currently very ill.

6. The solicitors for the Board followed up with Mr Elliott.  Mr Elliott informed the solicitors that he had been overseas, that Ms in de Braekt probably did not realise he had been overseas and that he had lost his mobile phone while overseas.  They put this information to Ms in de Braekt in a letter dated 11 September 2018, calling on her to identify the basis for her contention about Mr Elliott's illness; Exhibit 53.   The Board's solicitors followed up on 17 September 2018 and the issue was debated in correspondence; Exhibits 54 and 55 ­ 59. 

7. The Board tendered a statement from Mr Elliott which reflected what he told the Board's solicitors.  He also said:

   In the period from 20 July 2018 to 27 August 2018, I was not very ill and I did not tell anyone that I was very ill.  There were occasions when I was hungover.  I cannot recall if I complained to others about being hungover.

   I am not aware of anyone who advised Ms in de Braekt that I was very ill.

   (Exhibit 29)

8. Mr Elliott was not cross­examined.

9. In the Applicant's Closing Submissions, Ms in de Braekt said:

   [203]Given the absence of evidence as to what basis the Applicant made this remark to the Tribunal, it is impossible to draw any conclusions about the basis.

   [204]Mr Elliott's bizarre remarks about being 'hungover' proves that he is an unreliable witness.  He claims not to be able to remember if he told anyone he was hungover.  Obviously then he does not have a reliable memory as to anything he may have said.

   [205]Therefore no adverse inferences are able to be drawn against the Applicant.

10. Mr Elliott's evidence that he was not seriously ill and did not tell anyone that he was ill suggests that there was no basis for Ms in de Braekt's assertion that he was seriously ill.  In the absence of an explanation from Ms in de Braekt, the Tribunal is entitled to infer that there was no basis for her statement about Mr Elliott's illness.

11. The Board also drew the Tribunal's attention to an email dated 13 October 2018 from Ms in de Braekt to the Tribunal in which she asserted that the Board was seeking an adjournment of the hearing; Exhibit 68.  It was plain from the earlier correspondence that the Board did not seek an adjournment; Exhibit 67.

12. The Tribunal is left with a disquieting suspicion that Ms in de Braekt still 'makes things up on the spot', to use the language of the Tribunal in the Tribunal's Misconduct Decision; at [109].

Conclusion in relation to prior misconduct

1. The Tribunal has had regard to the evidence of Dr Skerritt.  However, in light of the limitations on Dr Skerritt's evidence and the other matters identified above, the Tribunal considers that there is a significant risk that the conduct which resulted in Ms in de Braekt's name being removed from the Roll of Practitioners will recur, if she was admitted.

2. The conclusion that there is a significant risk that the disqualifying conduct will recur, of itself, leads the Tribunal to conclude that Ms in de Braekt is not a fit and proper person to be admitted.

3. There are additional matters which suggest that Ms in de Braekt is not a fit and proper person to be admitted.

G. Criminal offences and conduct to the extent that it is prejudicial to the practitioner's respect for the administration of justice

1. Whether an applicant has been convicted of an offence in Australia is specifically identified as a suitability factor in s 8(1)(c) of the LP Act. The importance of this factor depends, in any particular case, on the nature and seriousness of the offence.

2. This suitability factor is related to an applicant's 'fame and character'.  It may also be seen as a manifestation of a broader requirement that a legal practitioner must have respect for the administration of justice.  People who have no respect for the administration of justice should not be on the Roll of Practitioners. 

3. The Board contended that Ms in de Braekt had been convicted of a number of criminal offences which were relevant to whether she was a fit and proper person.

4. A copy of a National Police Certificate was tendered by Ms in de Braekt; Exhibit 6.  It shows she committed seven offences since 2013.  One of them was a speeding infringement which is not significant in the present context.  The other offences were 'using an unlicensed vehicle' four times and 'no authority to drive', twice. 

5. Ms in de Braekt contended that these 'minor traffic offences' should not count against her because none of the offences involved 'any moral turpitude whatsoever'; Applicant's Closing Submissions at [120]. The Tribunal does not agree. It was wrong of Ms in de Braekt to have driven an unlicensed vehicle, although these offences are not indictable. Driving an unlicensed motor vehicle is not a trivial matter. Ms in de Braekt informed the Board that the two 'no authority to drive' offences arose when she failed to pay parking infringements which resulted from her inability to pay infringement notices; Applicant's Closing Submissions at paras 115 and 121; and Exhibit 5. Impecuniosity may well cause a car to be unlicensed. Impecuniosity did not cause Ms in de Braekt to drive it. In any event, Ms in de Braekt did not provide evidence as to her financial circumstances at the time these offences occurred.

6. The more troubling aspect is Ms in de Braekt's submission, which suggests that she feels no moral obligation to adhere to the law.  This is not an appropriate attitude for a legal practitioner. 

7. The Kanapathy Proceedings are also relevant in this context.

8. On 10 December 2018, Ms in de Braekt lodged an application to set aside the decision of Lucev FMC made on 31 March 2017.  It will be recalled that the effect of the decision on 31 March 2017 was to dismiss an earlier application by Ms in de Braekt to extend the time for her to respond to the notice to admit administered in the Kanapathy Proceedings. 

9. Ms in de Braekt contended: 

   Exhibits 11 ­ 13 prove that there is presently a set aside application before the Federal Circuit Court which affects that status of the monetary Orders issued against the Applicant.  If the set aside application is successful, the monetary Orders against the Applicant will evaporate as the judgement in which they were issued, will be set aside.  Therefore as the future existence of the Orders is in question, the substantive judgement & related Orders cannot be taken into account in these proceedings.

   (Applicant's Closing Submissions 19 February 2019 at para 162; Applicant's Closing Submissions 27 February 2019 at para 190)

10. This submission does not reflect well on Ms in de Braekt.

11. First, her submission misconceives the effect of her application.  Making an application to set aside a decision does not, of itself, affect the validity of the order of Lucev FM of 31 March 2017.  Until the Federal Circuit Court makes an order setting aside that decision, it remains effective until it is actually set aside.  As a person seeking to become a legal practitioner Ms in de Braekt should comply with it. 

12. Secondly, Ms in de Braekt has not provided any material to the Tribunal which suggests that the application of 10 December 2018 has any prospects of success.  The passage of time alone since the Kanapathy Orders were made on 25 September 2013 must weigh heavily against Ms in de Braekt's prospects. 

13. The application was made less than two hours before a directions hearing in these proceedings.  The timing of the application allows the inference to be drawn that the application was made for the purpose of gaining a forensic advantage in these proceedings, rather than because there were genuine grounds to revoke the decision of 31 March 2017. 

H. Good fame and character ­ s 8(1)(a) of the LP Act

1. Ms in de Braekt contended that the character evidence of Mr McCorry and Mr Healy supported her good fame and character and weighed in favour of her readmission; Applicant's Closing Submissions, 19 February 2019 at para 169.

2. Ms in de Braekt's case was not assisted by this evidence. 

3. Both Mr Healy and Mr McCorry provided written character references; Exhibits 28 and 27.  The two references bore a striking resemblance to each other and had been initially drafted by Ms in de Braekt; ts 57 and 68, 15 January 2019.  Ms in de Braekt's description of her conduct in both references skirts significant aspects of her conduct; Exhibits 28 and 27; ts 68, 15 January 2019.

4. Mr Healy had not had substantial dealings with Ms in de Braekt since they had worked together some 20 years ago.  This gap in their relationship is significant particularly since Ms in de Braekt's psychiatric condition was symptomatic in 2011.  Mr Healy does not know Ms in de Braekt well enough to provide a meaningful reference. 

5. Mr McCorry was a less satisfactory witness than Mr Healy.             His view of Ms in de Braekt's character was not swayed by the adverse findings made against her by the Tribunal because 'Tribunals have been known to get it wrong'; ts 63, 15 January 2019.  The Tribunal found that he was an unsatisfactory witness in the Tribunal's Misconduct Proceedings.  He indicated that he did not recall the adverse findings made against him by the Tribunal in the Tribunal's Misconduct Decision, despite saying that he had read the decision; ts 64 ­ 65, 15 January 2019.  He also indicated, in connection with Ms in de Braekt's failure to satisfy the Kanapathy Decision, that how a person spends his or her money is not relevant to his or her character or his or her fitness for enrolment as a practitioner; ts 65 and 66, 15 January 2019.  His evidence also suffered from his limited contact with Ms in de Braekt.  No weight can be given to his evidence.

6. Ms in de Braekt did not provide any evidence of gainful employment, community engagement or similar work since she was struck off.  Gainful employment, community engagements or similar work might show positive aspects of her character or that her 'fame' or reputation had been rehabilitated.

7. As indicated above, Ms in de Braekt was found to have misled the Magistrates Court.  She gave false evidence to the Tribunal during the Tribunal's Misconduct Proceedings.  Her evidence in the Tribunal's Misconduct Court Proceedings was not accepted on several matters.     The FMC and the Court of Appeal did not accept her assertions that she had not been served with documents.

8. Ms in de Braekt's fame and character count against her application for readmission.

I. Inherent requirements of practice ­ s 8(1)(m) of the LP Act

1. The Board contended that Ms in de Braekt was incompetent and that she was unable to perform the inherent requirements of practice as an Australian legal practitioner. 

2. The Board stressed that Ms in de Braekt's ground for review misunderstood the nature of the Tribunal's review function.  As is apparent in [23] of these reasons, the Tribunal accepts that Ms in de Braekt's grounds were misconceived.  The Board also complained about the way in which the application for readmission was prepared.  The Board contended that it was amateurish.

3. From the Tribunal's point of view, the real problem was a lack of objectivity.  Her case focussed on demonstrating ways that the Board was wrong, rather than emphasising factors which favoured her readmission.  Her characterisation of the Board's reasons in relation to the impact of her traffic offences, the effluxion of time since her name was removed from the Roll of Practitioners, working in a different field and engaging in community-based services do not fairly reflect the effect of those reasons (Ms in de Braekt's grounds of review are dealt with at [203] to [217] of these reasons.)  This lack of objectivity appears to be a feature of her communications, as noted by the Tribunal in the Pro Used Decision (at [94] of these reasons) and as evident in her email to the FMC set out at [99] of these reasons.  

J. Other matters

1. The Tribunal is also troubled by Ms in de Braekt's lack of candour in connection with the application.  An applicant for admission has a duty to disclose material which may potentially be relevant to fitness to practice; Skerritt at [47] ­ [49]. A lack of candour by a person seeking readmission can be a significant adverse factor; Gregory v Queensland Law Society Inc [2002] 2 Qd R 583.

2. Ms in de Braekt's financial position became relevant in relation to her failure to pay various parking fines, her failure to satisfy the costs order in favour of the Committee in relation to the Tribunal's Misconduct Proceedings and to comply with the Kanapathy Orders. The Board tendered evidence that she came into funds on the sale of her half interest in her house and that she spent $15,000 on 'legal services' in anticipation of her return to practice; Exhibit 1 page 18. Ms in de Braekt's affidavit in the Appeal Proceedings also indicated that she 'ceased to be impecunious' in March 2016; Misconduct Appeal Decision at [34]. After making her application for readmission, she informed the Board that no traffic infringement 'will ever occur in the future, as I am no longer impecunious'; Exhibit 5. Having relied on her financial situation to excuse aspects of her conduct, Ms in de Braekt did not provide adequate information about them.

3. Ms in de Braekt also provided only very limited information about her medical treatment over the years.  There was some evidence of treatment for her medical condition in the Misconduct Appeal Decision.  Given that Ms in de Braekt's case substantially revolved around her medical condition and how effectively it had been treated, this was a significant omission.  Ms in de Braekt said that she had authorised the Board to make further inquiries but that is not the same thing.

4. The Tribunal accepts that Ms in de Braekt is deeply committed to practising as a barrister.  It may also be the case that Ms in de Braekt's mental state would be improved by a return to legal practice.  Furthermore, there is a public interest in the readmission of former practitioners who have been 'rehabilitated', particularly where the practitioner was initially struck off because of illness.  Ms in de Braekt also made oral submissions detailing some of her personal circumstances at the time of the events the subject of the Tribunal's Misconduct Proceedings.  However, the primary interests to be served by the regulation of the legal profession are the protection of the public and the reputation of the legal profession; Strike Off Decision at [24]; Stokes at [33] and [34].

K. Ms in de Braekt's grounds

1. As indicated above, the grounds raised do not, in general, take account of the nature of the review conducted by the Tribunal.  However, the contentions advanced by Ms in de Braekt should be specifically dealt with.

Ground 1:  eligibility for admission

1. Ms in de Braekt contended that the Board, wrongly, failed to determine whether she was eligible for admission.  This contention is correct and is discussed above in these reasons.  It does not follow however, that Ms in de Braekt is a fit and proper for re­admission.

Ground 2:  likelihood of recurrence

1. Ms in de Braekt contended that the Board erred in law in that it failed to determine whether there was a significant likelihood of the misconduct recurring.

2. The Board dealt with the issue of the likelihood of a recurrence by noting that the issue for it was whether the applicant was a fit and proper person for admission, rather than a 'mere assessment of the … likelihood of a future infliction of harm upon potential clients if readmitted'; applying Dixon (Information Notice at para 59). The Board was not required to make a specific finding about likelihood of recurrence of the disqualifying conduct. The effectiveness of Ms in de Braekt's medical treatment, and hence the risk of repetition of the disqualifying conduct, were taken into account in the broader consideration of Ms in de Braekt's suitability for readmission; Information Notice at para 61.

3. In reaching this conclusion, the Board did not 'disregard' the evidence of Dr Skerritt.  It referred to that evidence extensively.  Like the Tribunal, the Board was not ultimately persuaded that Ms in de Braekt was suitable for readmission.  The issue is discussed fully above.

Ground 3:  traffic offences

1. Ms in de Braekt contended that the Board erred in law in that it wrongly found traffic offences made her unfit to be a legal practitioner; Applicant's Closing Submissions 27 February 2019 at para 47.

2. This matter was dealt with at para 25 of the Board's reasons; Exhibit 10.   It referred to the various traffic offences as part of a broader inquiry about Ms in de Braekt's fitness for readmission and the extent of her insight and remorse.  The Board said:

   The Committee found that the Applicant downplayed the seriousness of driving while unregistered.  This deliberate flouting of the law indicates that there had not been any significant change in her conduct or attitude towards the legal system.

3. The Board did not find that the offences, of themselves, made her unfit.  The Board properly took the offences into account, along with other matters.

Ground 4:  amount of time since Ms in de Braekt was struck off

1. Ms in de Braekt contended that the Board wrongly found that the amount of time since her name was removed from the Roll of Practitioners was not a relevant consideration.

2. The Board did not say that the amount of time since Ms in de Braekt was struck off was not a relevant consideration.  The Board had regard to the amount of time since Ms in de Braekt was struck off; Information Notice at para 52.  The Board took the view that sufficient time had not elapsed to enable the Board to conclude that Ms in de Braekt was a fit and proper person for admission; Information Notice at para 60.

3. Underlying this ground of appeal was an assertion that 'it is well established that after 5 years persons who have been struck from the roll of practitioners can be readmitted'; Applicant's Closing Submissions 19 February 2019 at para 125.  There is no basis for this assertion.

4. The question, in each case, is whether the applicant for readmission is a fit and proper person for admission to the Roll of Practitioners.  The passage of time will likely provide opportunities for a person who has been struck off to engage in activities which demonstrate remorse and insight into their conduct and to rehabilitate themselves in the community.  However, an applicant may not take up those opportunities.  Although it has been 12 years since the disqualifying conduct occurred, and almost six years since Ms in de Braekt's name was removed from the Roll of Practitioners, there is no evidence before the Tribunal to show that Ms in de Braekt took advantage of that time to engage in conduct that would demonstrate insight and remorse.  The Tribunal accepts that Ms in de Braekt's health issues would have made getting a job difficult.

Grounds 5 and 6: working in a different field and engaging in public works

1. These grounds can be dealt with together.

2. Ms in de Braekt contended that the Board erred in law, in that it wrongly found that the applicant had to have worked in a different field since being struck off the Roll of Practitioners; Applicant's Closing Submissions 27 February 2019 at para 47.   She also contended that the Board erroneously held that Ms in de Braekt had to have engaged in public works in order to be readmitted.  She referred to paras 29, 66 and 72 of the Information Notice. 

3. The Board did not make this finding.  The Board said that Ms in de Braekt had not included in her application material from which the Board could assess whether Ms in de Braekt had returned to stability (para 29) or could work effectively in a pressured environment (para 66) and contained no demonstration of atonement or expiation for past wrongs (para 72).  This criticism of the evidence in Ms in de Braekt's application was not intended to lay down an inflexible requirement about working in a different field or engaging in community-based services.

L. Summary and conclusion

1. Ms in de Braekt's name was previously removed from the Roll of Practitioners.  The conduct which led to her being struck off was misleading a Magistrate on two occasions in June and July 2009 and being unprofessionally rude to police officers and court security staff in 2009. 

2. There was evidence from Dr Skerritt that she had been diagnosed with a particular medical condition, that she was receiving treatment from him and that she was again capable of working as a lawyer.              His evidence was based on limited information.  There was no evidence that Ms in de Braekt's condition affected her truthfulness and consequently, that treatment of her condition would prevent her making more false statements in Court.

3. There was a significant body of other conduct which was similar to the disqualifying conduct.

4. Ms in de Braekt lacked insight into and remorse for her conduct, which increased the prospects that such conduct would recur. 

5. The Tribunal is not satisfied that disqualifying conduct would not recur in the future.  On the contrary, the Tribunal considers that there is a real risk that such conduct would recur if Ms in de Braekt was again admitted as a practitioner. 

6. In addition, Ms in de Braekt had an unsatisfactory attitude towards the administration of justice.  That attitude was evidenced by her attitude to the traffic offences, her failure to comply with the Kanapathy Orders and her application of 10 December 2018 to the Federal Circuit Court.  She failed to pay the Committee's costs of the Tribunal's misconduct Proceedings.

7. Having been struck off for misleading the Magistrates Court, there was no evidence that she is now a person of good fame and report.  In particular, the character evidence tendered by her was not persuasive.  There was no evidence of employment or engagement in some kind of community-based services from which the Tribunal might conclude that she had been rehabilitated.  Her lack of remorse showed a lack of good character.

8. Her application for readmission lacked candour.

9. The Tribunal considers that Ms in de Braekt is not a fit and proper person for admission to the Roll of Practitioners.

10. The decision under review is correct.  The decision of the Board is affirmed.

Orders

1.The decision of the Legal Practice Board made on 26 April 2018 to refuse to give Ms Megan Maree in de Braekt a compliance certificate (as defined in s 31(1) of the Legal Profession Act 2008 (WA)) is affirmed.

2.The applicant's application is dismissed.

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

JUDGE T SHARP, DEPUTY PRESIDENT

27 JUNE 2019