Khosa v Legal Services and Complaints Committee - [2024] WASCA 148

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KHOSA -v- LEGAL SERVICES AND COMPLAINTS COMMITTEE [2024] WASCA 148
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   22 NOVEMBER 2024
DELIVERED          :   22 NOVEMBER 2024
FILE NO/S:   CACV 22 of 2024
BETWEEN:   MANRAJ SINGH KHOSA
Appellant
AND
LEGAL SERVICES AND COMPLAINTS COMMITTEE
Respondent

ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: JUDGE H JACKSON, DEPUTY PRESIDENT
MR D AITKEN, SENIOR MEMBER
MR R POVEY, MEMBER

Citation: LEGAL SERVICES AND COMPLAINTS COMMITTEE and KHOSA [2023] WASAT 90 (S)
File Number : VR 159 of 2017

Catchwords:

Legal profession - Professional discipline - Whether appellant engaged in professional misconduct - Whether Tribunal erred in referring the matter to the Supreme Court (Full Bench) with a recommendation that the appellant's name be removed from the roll of legal practitioners and in ordering the appellant to pay the respondent's costs of the Tribunal proceedings - Whether the decision to hear the misconduct hearing in the appellant's absence involved a breach of the rules of procedural fairness - Whether failure to achieve some of the objectives of the Tribunal justified appellate interference with the Tribunal's orders - Whether Tribunal erred by failing to take account of appellant's duties as director of an incorporated legal practice under the Corporations Act 2001 (Cth) - Whether the Tribunal erred in admitting expert evidence - Whether Tribunal mischaracterised its findings made in previous disciplinary proceedings involving the appellant - Whether Tribunal erred in awarding costs to the respondent - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 180, s 181, s 588G
Interpretation Act 1984 (WA), s 37
Legal Profession Act 2008 (WA), s 438
State Administrative Act 2004 (WA), s 9, s 105

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	C M Beetham

Solicitors:

Appellant	:	In person
Respondent	:	Legal Services and Complaints Committee

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

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (S)
Khosa v Legal Profession Complaints Committee [2021] WASCA 64
Ogbonna v Qantas Airways Ltd [2023] WASCA 168
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Re Rules of the Supreme Court 1971 (WA); Ex parte Ruba [2020] WASC 237

REASONS OF THE COURT:

At the hearing of this appeal on 22 November 2024, we made orders refusing leave to appeal and dismissing this appeal. We said that we would publish reasons for making those orders later. These are our reasons for making those orders.

Introduction

The appellant is a legal practitioner who was the sole legal practitioner director of an incorporated legal practice, Angove Law Pty Ltd. Angove Law acted for Rosebridge Nominees Pty Ltd (client) in legal proceedings in the Supreme Court. Angove Law retained counsel, who the Tribunal referred to as Mr B, to act for the client in the Supreme Court proceedings. From October 2013 to February 2014, Mr B issued invoices to Angove Law for work he had carried out pursuant to the retainer. Mr B's costs were eventually taxed in the amount of about $150,000, of which only $12,000 was ever paid. In June 2015, after Mr B issued a demand for payment of the balance of the taxed costs, the appellant incorporated Law on Newcastle Pty Ltd and gave notice to the Legal Practice Board (Board) that the company would provide legal services. In July 2015, the appellant gave notice to the Board that Angove Law would cease providing legal services.
In August 2017, the respondent (Committee) referred complaints concerning the appellant to the State Administrative Tribunal (Tribunal). Partly pursuant to transitional provisions in s 37 of the Interpretation Act 1984 (WA), the Tribunal proceedings were dealt with under the former provisions of the Legal Profession Act 2008 (WA) (Act). In the Tribunal proceedings, the Committee alleged, in substance, that the appellant engaged in professional misconduct arising, broadly speaking, from the failure to pay counsel's fees, false or misleading representations, and the appellant's failure to appropriately respond to requests for documents and information by the Committee as part of its investigations.
By order made on 26 October 2023, the Tribunal in substance found:
1.The appellant engaged in professional misconduct between 29 November 2013 and 31 March 2014 by:
(a)Failing to pay Mr B's invoices and applying funds received from the client to pay Angove Law's invoices instead of Mr B's outstanding invoices.
(b)Sending an email to Mr B on 29 November 2013 in which the appellant knowingly made the following false and misleading representation:
(i)the funds available in the bank account from which a $7,000 part payment was made to pay an invoice issued by Mr B to Angove Law on 30 October 2013 (October invoice) were sufficient to meet the October invoice in full, however due to the daily payment limit being reached on Angove Law's bank account, the maximum payment the appellant was able to make to Mr B that day was $7,000; and
(ii)sometime during the following week the appellant would, accordingly, pay the balance of the October invoice
when the appellant knew the available funds were insufficient to pay the balance of the October invoice.
2.The appellant engaged in professional misconduct in June and July 2015 by:
(a)Knowingly making the false and misleading representation, at a meeting with officers of the Board on 17 June 2015 to discuss the potential closure of Angove Law, that Angove Law could meet its current debts and was solvent.
(b)Knowingly making false and misleading representations to the Board:
(i)in a Form 7 dated 23 June 2015 that a new legal practice of Law on Newcastle was not taking over an existing legal practice; and
(ii)in a Form 9 dated 9 July 2015 that Angove Law was not being taken over by a new legal practice,
when the appellant knew that the true position was that Angove Law was to be taken over by Law on Newcastle.
(c)Attempting to avoid the liabilities of Angove Law, including the obligation to pay Mr B's fees pursuant to his retainer and the appellant's professional obligations, by deriving the new incorporated legal practice of Law on Newcastle from the existing practice of Angove Law.
(d)Engaging in the conduct referred to at (a) and (b) above as part of the attempt referred to at (c) above.
3.The appellant engaged in professional misconduct between 25 September 2015 and 27 September 2016 and after 28 September 2018, by failing, without reasonable excuse, to respond to correspondence and a summons issued by the Committee during its investigation of the complaints against the appellant.
On 28 March 2024, the Tribunal ordered that:
1.A report of the Tribunal's finding in the proceedings be transmitted to the Supreme Court (Full Bench) with a recommendation that the appellant's name be removed from the roll of persons admitted to the legal profession under the Act.
2.The appellant pay the Committee's costs of the Tribunal proceedings fixed in the amount of $197,053.05.
On 23 April 2024, the appellant commenced an appeal in this court against the penalty and costs orders made by the Tribunal on 28 March 2024 (penalty orders). The appellant has not instituted an appeal against the orders made on 26 October 2023 recording the Tribunal's findings that the appellant had engaged in professional misconduct (conduct orders).
On 31 July 2024, the appellant filed an appellant's case which contained the following grounds of appeal:
1. The Tribunal erred in denying the Appellant the opportunity to be heard resulting in a miscarriage of justice.
2. The Tribunal breached Section 9 of the State Administrative Tribunal Act 2004[.]
3. The Tribunal erred in disregarding the Appellant's statutory duties as a director of an incorporated entity pursuant to the Corporations Act which entity was also an incorporated legal practice.
4. The Tribunal erred when it admitted a report into evidence in circumstances where the [Committee] was aware that the author had lied to established his expertise and the report produced by the author was based on non-applicable standards.
5. The Tribunal erred in finding dishonesty in VR34/2015 Legal Profession Complaints Committee v Khosa[.]
6. The Tribunal erred in awarding the Committee costs when the Committee engaged in conduct that misled the Tribunal[.]
7. The Exercise of Bad Faith since the Hill J's [sic] decision in Ex Parte Ruba [2020] - misleading conduct by the Committee[.]
We note that the appellant's appeal is instituted under s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The penalty orders, made under s 438 of the Act, would have the effect of depriving the appellant of the capacity to lawfully pursue his vocation as a legal practitioner. Therefore, under s 105(13) of the SAT Act, an appeal may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed fact and law.
On 7 August 2024, the acting Court of Appeal registrar issued a notice for the parties to attend a hearing on 25 September 2024 to consider:
1.whether the appeal should be dismissed on the basis that none of the grounds of appeal has a reasonable prospect of succeeding;
2.whether to strike out any ground of appeal on the basis that it does not have a reasonable prospect of succeeding; and
3.the application for leave to appeal.
That hearing was adjourned to 22 November 2024, on the application of the appellant, who deposed to suffering symptoms of COVID-19.
At 4.11 pm on 21 November 2024, the appellant sent an email to the Court of Appeal office stating:
I apologise for the lack of communication.
I am currently attempting to keep both my wife and my mother-in-law safe from certain relatives who have and do currently pose a threat to them both. I anticipate that we will be moving to a safe undisclosed location this evening to avoid any confrontation. To ensure their continuing safety, we will remain incommunicado for the next few days.
The email went on to state that the appellant had been 'dealing with this since the beginning of October 2024' and described making reports to police. The appellant requested the court's 'final indulgence in adjourning tomorrow's hearing'.
The manager of the Court of Appeal office responded to the appellant's email at 5.01 pm on 21 November 2024, advising the appellant that the matter remained listed and that any application to vacate the hearing would require the filing of an application in an appeal and supporting affidavit. The email also advised the appellant that:
Should you wish to attend the hearing by telephone, you must provide the Court with a telephone number which you can be contacted on at least 10 minutes before commencement and for the entirety of the hearing.
The appellant did not provide a contact telephone number in response to the advice in the passage just quoted. Shortly prior to the hearing, court staff attempted to contact the appellant by the mobile telephone number he provided in his service details, but the call went directly through to voicemail. Shortly after the commencement of the hearing, the court again tried calling the appellant's mobile number and the call again went directly through to voicemail.
We were not satisfied that it was in the interests of justice to further adjourn the hearing on 22 November 2024. There was no explanation for the lateness of the request for an adjournment, given that the appellant claimed to have been dealing with the issue which he says prompted the request since the beginning of October 2024. The appellant did not attempt to place any evidence of the assertions contained in his email before the court. Further, nothing in the email indicated why the appellant could not attend the hearing remotely, such as by telephone. The appellant had already been granted a substantial indulgence in having the matter adjourned. We were satisfied that the appellant had been given a sufficient opportunity to attend and make oral submissions in relation to the matter.
Further, for the purposes of addressing the matters raised in the registrar's notice to attend, we had the benefit of the appellant's written submissions in support of his grounds of appeal as contained in his appellant's case filed on 31 July 2024.

Ground 1: denial of procedural fairness

To understand ground 1, it is necessary to note some detail of the history of the Tribunal proceedings.
The Tribunal proceedings had been marred by a long series of interlocutory skirmishes, many of which concerned a contemporaneous diary note which the appellant's wife, Ms Ruba, claimed to have made of the appellant's meeting with Board officers on 17 June 2015 (to which the finding noted at [4.2](a) above relates). The Committee challenged the authenticity of that diary note and sought orders for it to be forensically examined. Part of that dispute was the subject of this court's decision in Khosa v Legal Profession Complaints Committee.[1] In that decision, this court dismissed the appellant's appeal against the orders for forensic examination. Subsequently, the parties in the Tribunal proceedings obtained and exchanged expert reports relating to the authenticity of the diary note.
[1] Khosa v Legal Profession Complaints Committee [2021] WASCA 64.
Eventually, on 5 July 2022, the matter was listed for a final hearing of the complaints over five days commencing on 20 March 2023. On 23 February 2023, the appellant sought an adjournment of the final hearing, in part relying on his medical conditions. In broad terms, the appellant sought an adjournment by reason of:
1.his need to care for Ms Ruba's father which had arisen due to Ms Ruba's mother's ill-health in December 2022;
2.the need for him to complete a course of study which was a requirement of Centrelink benefits he was receiving; and
3.his own ill-health.
On 8 March 2023, the then President of the Tribunal dismissed the adjournment application. Her Honour was satisfied that alternative care arrangements could be made for the appellant's father-in-law and that the appellant was entitled to apply for an exemption from the Centrelink study requirement.[2] In relation to the appellant's medical situation, the President observed:[3]
I turn to the third reason [the appellant] relies upon as a basis for an adjournment and that is that in his evidence he says that he and his wife were involved in a car accident in 2020 and that as a result has been unable to move with speed and unable to work continuously since that time. The difficulty with that evidence and the submission that follows is that the hearing has been listed since July of last year, but in the course of his exchange with me today [the appellant] acknowledged that while he claimed he had done some preparation since July, he was planning on doing the bulk of preparation for the hearing in the couple of months prior to the hearing commencing, that is, in January and February.
The upshot seems to be that notwithstanding his physical limitations, [the appellant] chose not to undertake most of the preparation for the hearing on the assumption that life would not impede his or the developments in his life would not impede his preparation and notwithstanding he was aware of what he says are his physical limitations in preparing.
[2] Tribunal ts 08/03/2023 29 - 32.
[3] Tribunal ts 08/03/2023 32 - 33.
The President was not satisfied that the appellant would not be able to attend the hearing. Her Honour found that the appellant's predicament in relation to preparation was largely of his own making, and that in any event the appellant would not be denied a fair hearing in circumstances where he would be able to prepare for the hearing if he set about doing so and devoted as much time as he possibly could to the preparation of his case.[4]
[4] Tribunal ts 08/03/2023 33 - 34.
The President also noted that the appellant sought an adjournment of four to 10 months to enable him to complete a course of study. Her Honour was concerned at the effect of this further delay on the memory of witnesses, particularly in relation to the contentious meeting of 17 June 2015. The President also noted that there was nothing in the evidence or the appellant's submissions to give the Tribunal confidence that he would be in a substantially better position in relation to his preparation four, six or 10 months down the track. Her Honour also regarded the significant time it had taken to get the matter to hearing as weighing strongly against the grant of an adjournment.[5] The President concluded that an adjournment was not warranted in all of the circumstances and dismissed the appellant's adjournment application.[6]
[5] Tribunal ts 08/03/2023 35 - 36.
[6] Tribunal ts 08/03/2023 36 - 37.
On 9 March 2023 (ie the day following the President's refusal of the appellant's adjournment application) the appellant obtained a medical certificate from a general practitioner stating that the appellant 'has a medical condition and will be unfit for work from 09/3/2023 to 24/3/2023 inclusive'. The appellant emailed this medical certificate to the Tribunal on 13 March 2023.[7] There followed an exchange of emails between Ms Ruba and the Tribunal which indicated that a further adjournment application would be heard on 16 March 2023 and the Tribunal expected the appellant's general practitioner to attend that hearing to answer questions.[8] There was no appearance for the appellant at the hearing on 16 March 2023, which was adjourned to the following day. Ms Ruba attended the hearing on 17 March 2023 on the appellant's behalf and sought an adjournment based on the medical certificate.[9]
[7] Legal Services and Complaints Committee and Khosa [2023] WASAT 90 (conduct decision) [47] - [49].
[8] Conduct decision [50] - [54].
[9] Conduct decision [55] - [62].
At the hearing on 17 March 2023, the Deputy President dismissed the adjournment application, essentially on the basis of the lack of detail in the medical certificate and the insufficiency of the steps taken to have the doctor before the Tribunal. His Honour said that in those circumstances he was unable to place much weight on the medical certificate. His Honour observed:[10]
It may be that further applications to adjourn the hearing will be made next week. I make no comment about that. Any such applications will be addressed on their merits at the time. But right now, at the moment, I don't have sufficient information before me to warrant vacating the hearing that has, as I've said several times now, been listed for several months.
On that basis, I'm not satisfied that [the appellant] is medically incapable of attending the hearing, and in the absence of any other material in support of the application, I dismiss the application.
[10] Tribunal ts 17/03/2023 17.
In the very early hours of the morning of 20 March 2023, Ms Ruba emailed further material to the Tribunal, including the following letter from the appellant's general practitioner addressed 'to Whom It May Concern':[11]
[The appellant] is registered under my care. I have known this patient for about 9 years. He has a number of long term medical conditions. He has also has [sic] a number of social stresses at present. These include:
1.Uncontrolled hypertension - this is currently under management and review. He also has Non-Insulin Dependent Diabetes and is under specialist care for this.
2.Neck pain and back pain following Road Traffic Accident. He was seen by Pain Management Specialist in Dec 2022 and is currently undergoing treatment for his chronic pain.
3.Non-insulin Dependent Diabetes which is under specialist care.
I am concerned that given the above physical and mental stresses, a Disciplinary Hearing may cause a deterioration in his physical state. I would be grateful if the above could be taken into account and his hearing deferred for 4 weeks.
[11] Conduct decision [69].

Ms Ruba attended the hearing on 20 March 2023, but the appellant did not. During her submissions in support of an adjournment application, Ms Ruba advised the Tribunal that the appellant was then in hospital. Given that advice, the Tribunal made the following presently relevant orders on 20 March 2023:[12]
2.The matter is adjourned to 9.30 am on 21 March 2023...
3.The [appellant] have leave to file and serve any material associated with or relating to his admission at Fiona Stanley Hospital on either or both of 19 March 2023 and 20 March 2023 by 5 pm on 20 March 2023.
4.The [appellant] shall have leave to make a further application to adjourn or vacate the hearing at the recommencement of the proceedings but only on the basis of any material filed and served by 5:00 pm on 20 March 2023.
[12] Tribunal ts 20/03/2023 34.
Ms Ruba emailed two applications to vacate the substantive hearing, one on medical grounds and the other on the ground that the appellant was unable to pay the fees of his expert witness. In support of the application to vacate on medical grounds, Ms Ruba provided a 'Fiona Stanley Hospital Emergency Medicine Summary' (Hospital Summary). This was described by the Tribunal in the following terms:[13]
The [Hospital] Summary states that the [appellant] had presented to the Fiona Stanley Hospital Emergency Department at 5.24 am on Monday, 20 March 2023 with, amongst other things, a headache described as '4/10' (which we understand to be an indication of the level of pain), an episode of blurred vision and pain 'over paraspinal muscles', all of which were said to have started 'simultaneously on Saturday'. The notes of the history taken includes reference to additional stressors, such as the ill-health of his parents-in-law, that he had been preparing for the hearing and that his general practitioner had given a medical certificate to the Tribunal which was 'denied'.
The [Hospital] Summary lists his prior medical history as Type 2 Diabetes, hypertension and the effects of a motor vehicle accident in 2020. It describes both the physical examinations and investigations undertaken of the [appellant], including a CT brain scan and an ECG. Both the examination and investigation were described in terms that we understand as normal. The 'principal diagnosis' given is 'Neurological ‑ + Headache - Headache'.
The Hospital Summary indicates that the appellant was discharged to home at 11.10 am on 20 March 2023, under a plan to discharge with a medical certificate and 'Gp follow-up for TFTs and appropriate management pending results'.
[13] Conduct decision [84] - [85].
At 9.00 am on 21 March 2023, a letter signed by the appellant and Ms Ruba was emailed to the associates of the presiding Deputy President and the President. The letter indicated that neither the appellant nor Ms Ruba would participate further in the proceedings. Calls immediately before and after the commencement of the hearing at 9.30 am on 21 March 2023 went unanswered. Neither the appellant nor anyone representing him attended the hearing. The Tribunal determined to proceed with the hearing in the appellant's absence.[14]
[14] Conduct decision [86] - [92].
At the hearing on 21 March 2023, the Tribunal dismissed the appellant's application for an adjournment, on the basis that there was no new medical information before the Tribunal to warrant any different result to the decisions made by the President on 8 March 2023 and the Deputy President on 17 March 2023.[15]
[15] Tribunal ts 21/03/2023 38 - 39.
Senior counsel for the Committee then opened the Committee's case. During counsel's opening statement, the Tribunal received four books of documents and three affidavits tendered by the Committee.[16] The Tribunal also received a witness statements and oral evidence from Elizabeth Fulham and Tony Mylotte (Board officers who were present at the meeting on 17 June 2015), as well as Mr B. Counsel indicated that this concluded the lay evidence on which the Committee relied.[17] The Tribunal adjourned to the following day to consider the question of expert evidence and closing submissions.
[16] Tribunal ts 21/03/2023 45 - 46, 48 - 49.
[17] Tribunal ts 21/03/2023 93.
The appellant and Ms Ruba did not attend the hearing on 22 March 2023 or respond to the Tribunal's attempts to contact them by telephone. During submissions by the Committee's counsel, the Tribunal indicated that the expert evidence anticipated to be adduced by the parties was not relevant in the absence of the appellant calling the evidence of Ms Ruba as to the diary note which was the subject of that evidence.[18] The Tribunal made the following orders:
[18] Tribunal ts 22/03/2023 106 - 107; conduct decision [120] - [121].
The [appellant] having been given multiple opportunities to attend the hearing, but having failed to do so, and having therefore failed to put before the Tribunal any evidence including the evidence of the expert engaged by him, being Erich J Speckin the Tribunal orders:
1. It will not have regard to any material other than:
(a) the application as amended by the Minute of Proposed Substituted Annexure A dated 30 January 2023;
(b) the [appellant's] response to the application, being the Response to [the Committee's] Substituted Annexure A filed with the Tribunal on 19 December 2019;
(c) that tendered by the [Committee];
(d) the evidence given viva voce by [Mr B], Ms Fulham and Mr Mylotte; and
(e) the written submissions of the [Committee] filed 20 February 2023.
2. Pursuant to Order 39B(5) of the State Administrative Tribunal Rules 2004 it will not admit the joint statement filed by Mr Speckin and Mr Gerald M LaPorte [the expert witnesses] dated 7 April 2022.
3. The hearing is adjourned to 10:00am on Friday 24 March 2023[.]
The appellant and Ms Ruba did not attend the hearing on 24 March 2023, at which the Committee made its oral closing submissions. The Tribunal reserved its decision and, on 5 October 2023, published the conduct decision, containing the written reasons for finding that the appellant had engaged in professional misconduct. The conduct decision indicated that the Tribunal would hear from the parties as to the orders which should be made to reflect those findings and the programming orders which should be made to facilitate a hearing as to penalty and costs.[19]
[19] Conduct decision [478] - [479].
The Deputy President convened a directions hearing on 20 October 2023 to deal with those issues. The appellant did not attend that hearing, although he and Ms Ruba sent the Tribunal a letter from the appellant and Ms Ruba on 19 October 2023 complaining about the Tribunal process and indicating that they could not participate in it. The Deputy President decided that it was appropriate to proceed in the absence of the appellant,[20] and made the following orders at that hearing:
1. By 4.00 pm 24 October 2023, each party is to provide their unavailable dates for a hearing to be listed between 11 to 20 December 2023.
2. By 10 November 2023, the [Committee] is to file in the Tribunal and provide to the [appellant] its written submissions on penalty and costs, together with any supporting evidence.
3. By 1 December 2023, the [appellant] is to file in the Tribunal and provide to the [Committee] his written submissions on penalty and costs, together with any supporting evidence.
4. The matter be listed for a hearing on penalty and costs for a duration of a half day at a date and time, not before 8 December 2023, to be advised by the Tribunal and subject to the parties' unavailable dates.
5. By 4.00 pm on 25 October 2023, the parties are to file in the Tribunal and serve on each other any submissions as to the extent the attached draft orders accurately reflect the Tribunal's [conduct decision].
[20] Tribunal ts 20/10/2023 2 - 3.
As noted earlier, the conduct orders, finding the appellant to have engaged in professional misconduct, were made by the Tribunal on 26 October 2023.
The Tribunal's penalty and costs hearing took place on 15 December 2023. The appellant appeared at that hearing. When given an opportunity to make oral submissions, he in effect indicated that he wished to rely on written submissions he had lodged with the Tribunal the previous day.[21] Those submissions, and oral submissions subsequently advanced by the appellant, generally addressed the integrity of the Tribunal's previous proceedings rather than the question of penalty and costs. After receiving submissions from counsel for the Committee and submissions in reply from the appellant, the Tribunal reserved its decision as to penalty and costs.
[21] Tribunal ts 15/12/2023 3 - 4.
The above account of the Tribunal proceedings indicates that there was no evidence before the Tribunal which could have formed a proper basis for the Tribunal to conclude that the appellant was incapable of attending the hearing in March 2023 by reason of medical impairment. The medical certificate dated 9 March 2023, noted at [21] above, was vague and did not provide a proper basis for adjourning the Tribunal proceedings. The general practitioner's letter received by the Tribunal on 20 March 2023, referred to at [23] above, indicated that the appellant suffered from medical conditions which were not inherently of a character which would prevent him from participating in the Tribunal proceedings. The Hospital Summary noted at [25] above indicated that the appellant presented on the morning of 20 March 2023 with a headache that did not require ongoing treatment.
Nothing in the appellant's grounds or submissions provides any proper basis for impugning the Tribunal's discretionary decisions dismissing the appellant's applications for an adjournment of the proceedings. Nor is there any arguable basis for contending that the appellant was denied a reasonable opportunity to respond to the complaints made against him.
As we recently noted in Ogbonna v Qantas Airways Ltd,[22] the discretion to grant or refuse an adjournment must be exercised consistently with the obligation of the court (or, in this case, the Tribunal) to determine disputes in a manner which is procedurally fair. However, it is well established that this does not require that a party be given an unlimited opportunity to present a case. What is required is that the parties are provided with a sufficient opportunity to present their cases.[23] A party who is given a sufficient opportunity to present their case, and who fails to take advantage of that opportunity without reasonable cause, cannot complain that they have been denied procedural fairness because the court (or, in this case, the Tribunal) has declined to provide a further opportunity to do so.
[22] Ogbonna v Qantas Airways Ltd [2023] WASCA 168 [17] - [18].
[23] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [98], [102], [112].
In the present case, the proper inference to be drawn is that the appellant decided not to participate in the hearing on March 2023, in a context where he had expressed dissatisfaction with the Tribunal proceedings and his state of preparedness for them. However, the appellant had been given ample opportunity to prepare for the hearing. The evidence did not establish that the appellant suffered from any medical impairment which prevented him from attending the hearing in March 2023. In our view, the Tribunal was plainly correct to refuse the adjournment applications and proceed with the hearing in March 2023 in the absence of the appellant. No arguable denial of procedural fairness was involved in circumstances where the appellant had been given a sufficient opportunity to prepare for and participate in that hearing but decided not to avail himself of that opportunity.

Ground 2: s 9 of the SAT Act

Ground 2 contends that the Tribunal has failed to achieve the objectives in s 9 of the SAT Act, which provides:
The main objectives of the Tribunal in dealing with matters within its jurisdiction are -
(a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and
(b)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and
(c)to make appropriate use of the knowledge and experience of Tribunal members.
The appellant submits that these objectives have not been achieved in the present case, in which the Tribunal proceedings ran from August 2017 until March 2024. He contends that the Tribunal and Committee contributed to this delay in the resolution of the proceedings. The appellant says that the Tribunal's decision ought to be set aside on the basis that it breached its own Act.
It may be accepted that it is at least arguable that the objective identified in s 9(b) of the SAT Act has not been achieved in the present case, given the length and complexity of the proceedings. There appear to have been various factors contributing to that outcome, including the delay attributable to the appellant's opposition to the Tribunal making orders for the forensic examination of the relevant parts of Ms Ruba's diary note. However, in the circumstances, the failure to achieve the objective did not provide a proper basis for dismissing the complaint without determining its substantive merits. The delay did not prevent the Tribunal from resolving the complaints in a manner which was fair to all parties. Further, to have dismissed the complaint without any determination of the complaint on its substantial merits would have failed to achieve the objective provided for in s 9(a) of the SAT Act.
The Tribunal dismissed an application made by Ms Ruba on the appellant's behalf to dismiss the proceedings by reason of the failure to achieve the objectives in s 9 of the SAT Act. The Tribunal gave the following oral reasons for making that decision:[24]
The application is without merit. These are the reasons. The objectives of the [Tribunal] are set out in section 9 of the [SAT Act]. They encourage expedition, informality and avoidance of legal technicalities.
These proceedings have unfortunately not satisfied all of those objectives. The main reason appears to be the appearance of an alternative version of events set out in Ms Ruba's [diary note] just prior to the hearing in 2020. Whether that version of events is correct or otherwise is a matter for determination at the end of the substantive hearing, but the facts as they appear is that that [diary note] appeared for the first time just before or soon before the listed hearing in 2020.
That in turn led to applications to uplift the [diary note] applications to then send it to the United States for testing. And along the way various decisions were made, which were subject to appeal at the Court of Appeal. All of that has - and I'm not passing any judgment on the rights or wrongs of any of that. As I say, those matters will in turn be the subject of evidence at the hearing, but the result of that has been considerable delay.
Ms Ruba's application to dismiss the proceedings involves allegations that these proceedings have gone on for too long. Without a doubt, that is the case. And again, I'm not speaking pejoratively of any party in saying so. The simple fact is that these are serious allegations that have been brought against the [appellant] and allegations of that level of seriousness ought to be addressed more promptly than they have, but we are where we are, and as I say, I cast no aspersions on either party in this regard.
It is in the public interest for a variety of reasons to have serious allegations such as these dealt with expeditiously. That is a reason to dismiss the application to dismiss these proceedings and get the matter on for a hearing as quickly as possible. In [the Tribunal's view], it does not constitute a proper basis to dismiss the application or the proceedings. Ms Ruba also complains about the objective of informality has not been satisfied.
Well, it is an objective and in certain circumstances, as justice requires it, that objective can be dealt with in a variety of different ways. There's no doubt there's an aspect of formality and technicality associated with both the expert evidence, as well as the application to or the objection taken to large parts of Ms Ruba's evidence. Both of those matters will be dealt with in due course. As I say, there is some strength to the submissions that the objectives of the tribunal have not been met as well as they might in these proceedings.
However that, in the [Tribunal's] view, is not a ground to dismiss the proceedings. It is, in fact, a matter which supports their prompt final hearing. For those reasons the application to dismiss the proceedings is dismissed.
[24] Tribunal ts 20/03/2023 25 - 26.
Nothing in the material before this court provides any reason for doubting the correctness of the Tribunal's decision not to dismiss the proceedings without a determination of the substantial merits of the complaint. Ground 2 of the appeal has no reasonable prospect of succeeding.

Ground 3: appellant's duties as a director of Angove Law

Ground 3 contends that the Tribunal erred in disregarding the appellant's statutory duties as a director of Angove Law under the Corporations Act 2001 (Cth).
In his written submissions, the appellant points to his duties as a director of Angove Law under:
1.Section 180 of the Corporations Act, to exercise his powers and discharge his duties with the degree of care and diligence that a reasonable person would exercise if they were a director of the corporation;
2.Section 181 of the Corporations Act, to exercise his powers and discharge his duties in good faith in the best interests of the corporation and for a proper purpose; and
3.Section 588G of the Corporations Act, which may be contravened by a director who fails to prevent a company from incurring a debt while it is insolvent.
The appellant submits that the Committee presented the case in terms of him having derived a benefit from Angove Law without compensating Angove Law. The appellant contends that this view was erroneous, as Law on Newcastle purchased assets from Angove Law which reduced Angove Law's liabilities and avoided Angove Law incurring further debt. The appellant says that if he had not been denied the opportunity to be heard, he would have led evidence that the transactions were at an arms-length, that the lease liability of Angove Law was taken over by Law on Newcastle, and that the accounts receivables of Angove Law stayed with Angove Law and were not assigned to Law on Newcastle. He says that this would have negated any allegation that there was 'phoenixing' activity.
There are several difficulties with this ground. As discussed in dealing with ground 1, the appellant was not denied an opportunity to be heard but rather chose not to participate in the proceedings. The Tribunal properly determined the case on the evidence before it, rather than evidence which the appellant might have led if he had taken the opportunity to defend the proceedings. The Tribunal was not required to deal with an argument about the Corporations Act which was not put at the hearing in March 2023. Further, the professional misconduct alleged by the Committee and found by the Tribunal was not inconsistent with the appellant's duties as a director of Angove Law. That misconduct was not in ceasing the business of Angove Law or the terms on which its assets were transferred to Law on Newcastle. Rather, the misconduct involved making the false and misleading representations identified at [4.2](a) and (b) above as part of an attempt to avoid the liabilities of Angove Law referred to at [4.2](c) above. For at least these reasons, ground 3 is without merit.

Ground 4: admission of expert evidence

Ground 4 in effect contends that the Tribunal erred in admitting into evidence reports of Gerald LaPorte, who was engaged by the Committee to conduct a forensic examination of parts of Ms Ruba's diary note. The appellant says that he had objected to the admission of Mr LaPorte's reports into evidence on various bases, but that these reports were admitted into evidence at the hearing in March 2023.
The short answer to ground 4 is that the Tribunal did not admit Mr LaPorte's reports into evidence. As noted at [29] above, the Tribunal determined that the expert reports would not be received into evidence on the basis that, in the absence of Ms Ruba's diary note being admitted into evidence, they were irrelevant. Therefore, the appellant's complaint that the Tribunal erred by admitting Mr LaPorte's report into evidence is without merit.

Ground 5: finding of dishonesty in previous proceedings

Ground 5 contends that the Tribunal erred 'in finding dishonesty in VR34/2015 Legal Profession Complaints Committee v Khosa'.
The reference to VR34/2015 is to the disciplinary proceedings which were the subject of this court's decision in Khosa v Legal Profession Complaints Committee.[25]
[25] Khosa v Legal Profession Complaints Committee [2017] WASCA 192.
In those proceedings the appellant was found to have engaged in professional misconduct by knowingly breaching an undertaking, given to a fellow practitioner during settlement negotiations, that a caveat withdrawal would not be lodged at Landgate until an issue of costs had been resolved. There was no dispute that the appellant had given the undertaking. There was also no dispute that, prior to the issue of costs being resolved, the appellant gave the caveat withdrawal form to his clients, who registered the withdrawal at Landgate. The critical issue in dispute in those Tribunal proceedings was whether the appellant had formed the view that he had been released from the undertaking at the time he gave his clients the executed withdrawal of caveat form.
The Tribunal rejected the appellant's evidence that he subjectively believed that he had been released from the undertaking at the relevant time. The Tribunal found that the appellant's subjective state of mind was that he did not believe that he had been released from the undertaking. The Tribunal found that the appellant had engaged in professional misconduct by knowingly breaching the undertaking. That finding was upheld on appeal, although this court reduced the penalty imposed from 6 months' to 2 months' suspension from practice.[26]
[26] See Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (S).
In the present appeal, the appellant contends in effect that the Tribunal wrongly understood that a finding of dishonesty was made in VR34/2015. He says that the Tribunal in VR34/2015 recognised that an honest practitioner can make a serious mistake, and that there was no finding of dishonesty in those proceedings. The appellant submits that the imposition of a suspension in VR34/2015 reflects the fact that the Tribunal in those proceedings viewed the matter as a serious mistake not one of dishonest conduct. On appeal in that matter, this court agreed with that proposition and thought the period of the suspension was too long. The appellant says that the Tribunal in the present case erred in using an 'inference of dishonesty in VR34/2015 to justify strike off in VR159/2017'.
The appellant's submission that the Tribunal and this court found that the professional misconduct in VR34/2015 did not involve dishonesty cannot be accepted. The passage of the Tribunal's reasons in VR34/2015 on which the appellant relies is as follows:[27]
The proper use of suspension is in cases where the practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that the practitioner lacks the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a practitioner.
While a degree of dishonesty was involved in knowingly breaching an undertaking, honest practitioners can occasionally make a serious mistake. This kind of mistake, without more, does not define them.
The Tribunal is satisfied that upon completion of a period of suspension, [the appellant] will be fit to resume practice.
(emphasis added)
[27] Reproduced in Khosa v Legal Profession Complaints Committee [2017] WASCA 192 [141].
This was not a finding that the appellant's knowing breach of his undertaking was not dishonest. Rather, as Murphy and Beech JJA recognised, it was a finding that the breach involved a 'degree' of dishonesty, but, occasionally, generally honest persons may make a serious mistake by a lapse into conduct involving a degree of dishonesty.[28] Their Honours later observed that a wilful breach of undertaking is not honest conduct but recognised that dishonesty, like other forms of misconduct, has grades of seriousness.[29] In imposing the shorter period of suspension, Murphy and Beech JJA identified the appellant's professional misconduct in VR34/2015 to involve a serious breach of his professional obligations which was deliberate and 'was not honest conduct'.[30]
[28] Khosa v Legal Profession Complaints Committee [2017] WASCA 192 [180](f).
[29] Khosa v Legal Profession Complaints Committee [2017] WASCA 192 [218].
[30] Khosa v Legal Profession Complaints Committee [2017] WASCA 192(S) [14].
In the present proceedings, the Tribunal referred to the penalties imposed in VR34/2015, after it had concluded that the professional misconduct referred to at [4.1] and [4.2] above was dishonest conduct. The Tribunal said:[31]
The sixth relevant matter is that the conduct the subject of ground two occurred soon after the imposition of a penalty of suspension of [the appellant's] practising certificate. The Tribunal imposed a penalty of six months suspension for the [appellant's] breach of an undertaking on 16 May 2015. On appeal, that suspension was stayed on 20 June 2015 and, later, reduced to two months. The conduct the subject of ground two occurred either side of the grant of the stay: on 17 and 23 June and 9 July 2015.
That is, at the very time when the [appellant] was being sanctioned for 'not honest' behaviour, he engaged in dishonest conduct; specifically the making of false representations to the [Board].
It is true that as at that time the [appellant] was appealing the previous findings of misconduct, but it might fairly be said that the circumstances should have focused his attention on the need for scrupulous care to ensure all dealings were honest.
That he engaged in dishonest conduct at that time appears to us to be a factor that supports a finding that he is inherently unsuitable for practice.
Seventh, as should be apparent from immediately above, the [appellant] does not have a clean record in relation to disciplinary action for dishonesty. In 2015, the Tribunal found that he knowingly breached a personal undertaking to another practitioner.
Accordingly, even if the conduct the subject of grounds one to three could be viewed as a single course of conduct (and, in our view it cannot, given its duration, various forms of conduct and various forms in which it occurred), it cannot be said, as was said in 2015 by the Tribunal in relation to the breach of the undertaking, that the conduct represents 'an isolated act of misjudgement'. Rather, in our view the [appellant] has engaged in several instances of dishonest and otherwise inappropriate conduct over a lengthy period of time.
[31] Legal Services and Complaints Committee and Khosa [2023] WASAT 90 (S) (penalty decision) [51] ‑ [56].
In our view, this passage does not arguably involve any mischaracterisation of the findings made against the appellant in VR34/2015. The Tribunal in the present case recognised that it had been found in VR34/2015 that the appellant's behaviour was 'not honest'. The references to dishonest conduct in the passage just quoted appear to be to the conduct referred to at [4.1] and [4.2] above. In any event, the distinction between conduct which is 'dishonest' and 'not honest' is vanishingly small, and the Tribunal in VR34/2015 found the appellant's knowing breach of his undertaking to involve a degree of dishonesty. Ground 5 has no reasonable prospect of succeeding.

Ground 6: costs award

Ground 6 contends that the Tribunal erred in awarding the Committee costs when the Committee engaged in conduct that misled the Tribunal.
In support of this ground, the appellant refers to the Committee's pursuit of the admission of Mr LaPorte's reports, the failure of the Committee to refer the Tribunal to director's duties under the Corporations Act and allegations in relation to the conduct of VR34/2015. None of these matters is capable of impugning the Tribunal's exercise of its costs discretion in the present matter. The Tribunal had no occasion to determine the propriety of admitting Mr LaPorte's reports into evidence once the appellant decided not to participate in the hearing in March 2023. The duties of directors under the Corporations Act were not a matter which required determination in the Tribunal proceedings, particularly when the appellant had not given evidence at the March 2023 hearing as to his performance of those duties. The allegations in relation to the conduct of the Committee in VR34/2015 were not the subject of findings in either those or the present proceedings and remained unsubstantiated at the costs and penalty hearing.
For these reasons, ground 6 has no reasonable prospect of succeeding.

Ground 7: bad faith by the Committee

The import of ground 7 is opaque. Ground 7 refers to the 'Exercise of Bad Faith since' Hill J's decision 'in Ex Parte Ruba [2020] - misleading conduct by the Committee'. The submission in support of that ground is:
It should be noted that in the course of the final hearing, no reference was made to the handwritten notes recorded by [Mr B] with regard to a telephone conversation between [the appellant] and himself regarding the lack of funds and the payment of his invoice where he was informed of the current situation with regard to the non-payment of fees by [the client].
The reference to Hill J's decision is evidently to Re Rules of the Supreme Court 1971 (WA); Ex parte Ruba.[32] That case concerned an application by Ms Ruba for leave to issue a writ of summons against the Board in which she claimed loss and damages alleged to be caused by the conduct of the Board in disciplinary proceedings against the appellant. Hill J refused leave on the basis that the proposed writ would be an abuse of the process of the court and would be a frivolous and vexatious proceeding. Hill J did not make any finding of misconduct by any officer of the Board or the Committee.
[32] Re Rules of the Supreme Court 1971 (WA); Ex parte Ruba [2020] WASC 237.
This ground of appeal does not provide any apparent basis for setting aside the Tribunal's decision in the present case.

Leave to appeal

The appellant requires leave to appeal against the Tribunal's orders under s 105(1) of the SAT Act. As this court recognised in Paridis v Settlement Agents Supervisory Board,[33] the power to grant leave is conferred in general terms and leave should be granted if, in all of the circumstances, it is in the interests of justice that there should be a grant of leave.
[33] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] (Buss JA, Wheeler & Pullin JJA agreeing).
In the present case, none of the appellant's grounds of appeal have any reasonable prospect of succeeding. As such, the correctness of the Tribunal's decision is not attended by sufficient doubt to justify the grant of leave to appeal. It is in the interests of justice for leave to appeal to be refused and for the appeal to be dismissed.
We note that many of the appellant's grounds of appeal are directed to impugning the conduct orders. As we have already concluded that the relevant grounds do not have a reasonable prospect of succeeding, it is unnecessary for this court to consider whether it is open to the appellant to advance those grounds when the appeal is only against the penalty orders.
For these reasons, at the hearing on 22 November 2024, we ordered that:
1.Leave to appeal is refused.
2.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Hon Justice Mitchell
22 NOVEMBER 2024