LEGAL PRACTICE BOARD and BARRY - [2025] WASAT 34

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT:   LEGAL PROFESSION UNIFORM LAW (WA) 2022
CITATION:   LEGAL PRACTICE BOARD and BARRY [2025] WASAT 34
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
DR M EVANS-BONNER, SENIOR MEMBER
MS M CONNOR, MEMBER

HEARD:   25 - 26 JULY 2024 AND 10 OCTOBER 2024
DELIVERED          :   22 APRIL 2025
FILE NO/S:   VR 84 of 2023
BETWEEN:   LEGAL PRACTICE BOARD
Applicant
AND
KEVIN DANIEL BARRY
Respondent

Catchwords:

Vocational regulation - Legal practitioner - Legal profession - Allegations of professional misconduct - Allegations of making 19 false or misleading representations to Legal Aid WA (LAWA) - Whether representations intentionally misleading, recklessly indifferent or careless - Allegation of making false or misleading statements to the Board which practitioner subsequently corrected - Finding of professional misconduct made with respect to representations to LAWA

Legislation:

Interpretation Act 1984 (WA), s 37(1)(d)
Legal Aid Commission Act 1976 (WA), s 6(1), s 14(1), s 40, s 42
Legal Profession Act 2008 (WA), s 402, s 403(1)
Legal Profession Conduct Rules 2010 (WA), r 6(1)(b), s 6(2)(a), s 6(2)(b)
Legal Profession Uniform Law (WA), s 296, s 297, s 297(1)(a), s 298, s 298(b)
Legal Profession Uniform Law Application Act 2022 (WA), s 14(3)
Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 (WA), r 4.1.2, r 5.1.1, r 5.1.2, r 43.1

Result:

Finding of professional misconduct for Ground 1
Ground 2 dismissed

Category: B

Representation:

Counsel:

Applicant	:	Ms R Young SC & Mr X Hall
Respondent	:	Mr LA Warnick SC

Solicitors:

Applicant	:	Legal Practice Board
Respondent	:	N/A

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

Australasian Brokerage Limited v The Australia and New Zealand Banking Corporation Ltd (1934) 52 CLR 430
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Comcare v Fiedler [2001] FCA 1810; 115 FCR 328
Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434
Giudice v Legal Profession Complaints Committee [2014] WASCA 115
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 59
Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115
Legal Practitioners Complaints Committee and McCormack [2009] WASAT 4
Legal Profession Complaints Committee and Chang [2019] WASAT 67
Legal Profession Complaints Committee and Lawson [2021] WASAT 152
Legal Profession Complaints Committee and Tang [2021] WASAT 117
Legal Profession Complaints Committee v Lourey [2022] WASCA 114
Legal Services and Complaints Committee and Lourey [No 2] [2023] WASAT 77
Legal Services and Complaints Committee and McCardle [No 2] [2023] WASAT 131
Legal Services Complaints Committee and Khosa [2023] WASAT 90
Marcolongo v Chen [2011] HCA 3
Palmer v Dolman [2005] NSWCA 361
SZTAL v Minister for Immigration and Border Protection and SZTGM v Minister for Immigration and Border Protection [2017] HCA 34
Vogt v Legal Profession Complaints Committee [2009] WASCA 202
Westgyp Pty Ltd v Northline Ceilings Pty Ltd [2018] WASC 244
Zaburoni v The Queen (2016) 256 CLR 482

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The respondent (Mr Barry) was, until February 2023, a legal practitioner, practising with a firm that we will refer to as JC.
In that capacity he accepted Legal Aid WA (LAWA) work in, broadly speaking, family law and violence restraining order matters.
Between May 2020 and July 2021, LAWA conducted audits of 16 files assigned by LAWA to Mr Barry, during which process Mr Barry completed 'audit review sheets' which he provided to LAWA (Audit Sheets).
The results of those audits were such that LAWA referred Mr Barry's conduct to the applicant (Board). Following its own investigation, the Board initiated these proceedings, pursuant to s 300(1)(b) of the Legal Profession Uniform Law.[1] The Board alleges that Mr Barry, in either or both of various invoices or relevant Audit Sheets submitted to LAWA:
(a)made 19 false or misleading representations;[2]
(b)in each case knew that the representations were false or, alternatively, that he was recklessly indifferent to their truth; and
(c)that as a result:
(1)he obtained an advantage for JC in the form of overpayment; and
(2)he caused a detriment to LAWA.
[1] As applied by the Legal Profession Uniform Law Application Act 2022 (WA), s 6.
[2] The Board's original allegations included 20 representations, but the Board no longer presses the 20^th representation.
The Board further alleges that in doing so, Mr Barry acted in breach of various obligations, and that, amongst other things, his conduct was 'conduct which demonstrates that [he] is not a fit and proper person to practice law'.
Those allegations constitute Ground 1.
As part of the Board's investigation following LAWA's referral of Mr Barry's conduct to it, Mr Barry was required to provide written submissions verified by statutory declaration. He did so on 15 December 2022, by a letter drafted by a barrister (Ms A) on his instructions and verified by a statutory declaration (First Statutory Declaration).
In a later letter, verified by statutory declaration dated 9 January 2023 (Second Statutory Declaration), Mr Barry admitted that two representations in his 15 December 2022 letter were wrong. Ground 2 alleges that Mr Barry deliberately made those two false or misleading representations. Mr Barry denies that that is the case.
The Board also alleges that 'by reason of either or both' of the two grounds, Mr Barry's conduct constitutes professional misconduct. Mr Barry agrees that his conduct as alleged in Ground 1 amounts to professional misconduct but, as just stated denies that the misrepresentations the subject of Ground 2 amount to professional misconduct.
Our task, therefore, is relatively narrow and is, mostly, limited to characterising Mr Barry's state of mind at the time the various representations were made, although in relation to certain of the Ground 1 representations, we must decide whether he made them at all, which he denies.
To avoid confusion, however, we have adopted the same format in relation to each representation and have determined:
(a)whether the representation was made;
(b)whether the representation was false;
(c)whether Mr Barry made the representation;
(d)if he did, what his mental state was - whether he intended to make the false representation, whether he was recklessly indifferent to the truth of the representation or whether he was careless; and
(e)if so, whether Mr Barry's conduct amounted to professional misconduct or unsatisfactory professional conduct.

Procedural history

The hearing took place on 25 and 26 July 2024 and 10 October 2024.
At the hearing in July, the 'Applicant's Trial Bundle' dated and filed 25 June 2024 was tendered as Exhibit 1.
The Board, represented by Ms Young SC, did not call any witnesses.
Mr Barry, represented by Mr Warnick SC, gave evidence by adopting a witness statement dated 3 May 2024[3] upon which he was crossexamined.
[3] Exhibit 1, pages 898 - 904.
The parties filed written closing submissions on 19 August 2024 (the Board) and 6 September 2024 (Mr Barry) and an oral hearing in that regard was held on 10 October 2024.

The statutory regime and legal principles

Unsatisfactory professional conduct and professional misconduct

As noted above, the Board alleges that Mr Barry has engaged in conduct that constitutes professional misconduct.
That term and the related term 'unsatisfactory professional conduct' are defined by ss 296 and 297 of the Legal Profession Uniform Law (WA) (Uniform Law) as follows:
296For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.
297Professional misconduct
(1)For the purposes of this Law, professional misconduct includes—
(a)unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.
(2)For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.
In Lourey,[4] the Court of Appeal said that the common law (Kyle[5]) test of professional misconduct continues to have effect because the statutory definitions under the predecessor legislation - ss 402 and 403(1) of the Legal Profession Act2008 (WA) (LP Act) - were 'not exhaustive'.
[4] Legal Profession Complaints Committee v Lourey [2022] WASCA 114 (Lourey) [197].
[5] Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115 (Kyle) [61].
Whether or not that remains the case under the Uniform Law[6] does not arise in this case because the Board's case does not allege a breach of the Kyle test.
[6] See Legal Services and Complaints Committee and Lourey [No 2] [2023] WASAT 77, [228] - [233].
Rather, as noted previously, the Board alleges that, 'by reason of either or both' of Grounds 1 and 2, Mr Barry's conduct 'fell substantially short of the standard of competence and diligence that a member of the public is reasonably entitled to expect of a legal practitioner …' which unambiguously places the conduct within s 297(1)(a) of the Uniform Law.
Even though professional misconduct is alleged, it is open to the Tribunal to find Mr Barry guilty of the lesser charge of unsatisfactory professional conduct.[7]

Intentionally or recklessly making false or misleading statements

[7] Uniform Law, s 302(3).

The Board alleges that Mr Barry intentionally made false statements in both Grounds, and in the alternative, that he made the statements with reckless indifference.
There can be no doubt that honesty is fundamental to the practise of law.[8]
[8] Legal Services and Complaints Committee and McCardle [No 2] [2023] WASAT 131 [413] citing Vogt v Legal Profession Complaints Committee [2009] WASCA 202 (Vogt) [61]. See, also, Legal Profession Complaints Committee and Tang [2021] WASAT 117 [56].
Equally, the principles concerning the distinction between intentional falsity and reckless indifference to the truth are uncontroversial. In Giudice,[9] Martin CJ held:
when a practitioner provides information or makes a statement to a court which is false or misleading, there are (at least) three categories of case in which that conduct will constitute either professional misconduct or unsatisfactory professional conduct. First, the practitioner might know that the statement or information is false or misleading. Second, the practitioner might have a reckless disregard to the question of whether the statement or information is false or misleading, and third, the practitioner might be negligent or careless. Because the first two categories will only apply if, assessed subjectively, the practitioner is either aware that the statement or information is false or misleading, or wilfully indifferent to its truth, in the absence of special circumstances one would ordinarily expect a finding of either category of conduct to be characterised as a substantial departure from the standards of conduct reasonably expected of a practitioner such as to constitute professional misconduct, within the taxonomy of the Act. In cases falling within the third category - that of negligence or carelessness - whether or not the practitioner's conduct is either unsatisfactory professional conduct or professional misconduct will depend upon the nature and degree of negligence or carelessness involved.
[9] Giudice v Legal Profession Complaints Committee [2014] WASCA 115 (Giudice) [8] (citations omitted). Edelman J agreed, [120]. The reasons of Buss JA, although separate, are consistent with this approach. See also Legal Profession Complaints Committee and Lawson [2021] WASAT 152 (Lawson) [18].
That passage is limited in its scope to false or misleading representations made to a court. In Khosa, this Tribunal held that the principle applies equally to representations made to the relevant regulator.[10] There was no suggestion before us that it does not also apply to representations made by a practitioner to LAWA and we have proceeded on that basis.
[10] Legal Services Complaints Committee v Khosa [2023] WASAT 90.
As that passage indicates, intentional conduct or reckless indifference are both concerned with a person's (in this case, Mr Barry's) subjective state of mind.[11] That is a question of fact which, necessarily, requires the drawing of inferences from all of the facts and circumstances.[12]
[11] SZTAL v Minister for Immigration and Border Protection and SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 (SZTAL), [26] - [27] per Kiefel CJ, Nettle and Gordon JJ, citing Zaburoni v The Queen (2016) 256 CLR 482 at 490 [14] - [15].
[12] Marcolongo v Chen [2011] HCA 3, [25] - [26], per French CJ, Gummow, Crennan and Bell JJ; Lawson [19] citing Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (Khosa) [169] (Murphy and Beech JJA).
The difference, as is also apparent from the above passage, is whether the person made the statement knowing it was false (intention) or whether they were alive to the risk that it was false but made it anyway (reckless indifference).[13]
[13] Giudice [44] - [45] (Martin CJ) and at [94] - [98] (Buss P). See, also, Legal Practitioners Complaints Committee and McCormack [2009] WASAT 4 (McCormack) [118] - [120], [247] - [248].
Carelessness, whether gross or otherwise is, by contrast, a breach of an objective standard.[14]

Conduct Rules

[14] Giudice [48] - [51] (Martin CJ); [147] (Buss JA).

The Board alleges that the conduct alleged in relation to each of the 19 representations in Ground 1 was contrary to various standards expected of a legal practitioner. Six standards are relied upon, three of which concern alleged breaches of the Legal Profession Conduct Rules 2010 (WA) (2010 Conduct Rules).[15]
[15] Despite their repeal, the Conduct Rules continue to have effect in this case due to the operation of s 37(1)(d) of the Interpretation Act 1984 (WA) because they were in force at the time of the alleged conduct, prior to the enactment of the Uniform Law in Western Australia on 1 July 2022.
Relevantly, rules 6(1)(b) and 6(2)(a) and (b) of the 2010 Conduct Rules provide as follows:
(1)A practitioner must —
(a)…
(b)be honest and courteous in all dealings with clients, other practitioners and other persons involved in a matter where the practitioner acts for a client; …
(2)A practitioner must not engage in conduct, in the course of providing legal services or otherwise, which —
(a)demonstrates that the practitioner is not a fit and proper person to practice law; or
(b)may be prejudicial to, or diminish public confidence in, the administration of justice; or
(c)may bring the profession into disrepute.
With respect to Ground 2, the Board alleges that Mr Barry's conduct was contrary to the standards expected of a legal practitioner because he breached certain of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (WA) (UL Conduct Rules).[16]
[16] Legal Profession Uniform Law Application Act 2022 (WA), s 14(3). The UL Conduct Rules took effect in this State when the Uniform Law commenced in Western Australia on 1 July 2022.
Specifically, the Board alleges that Mr Barry breached rules 4.1.2, 5.1.1, 5.1.2 and 43.1[17] of the UL Conduct Rules, which provide as follows:
[17] The Board relevantly alleges a breach of rule 42, which is clearly a typo.
4.1A solicitor must also –
4.1.1…
4.1.2be honest and courteous in all dealings in the course of legal practice.
…
5.1A solicitor must not engage in conduct, in the course of legal practice or otherwise, which —
5.1.1demonstrates that the solicitor is not a fit and proper person to practise law, or
5.1.2is likely to a material degree to —
(i)be prejudicial to, or diminish the public confidence in, the administration of justice, or
(ii)bring the profession into disrepute.
…
43.1Subject only to his or her duty to the client, a solicitor must be timely, open and frank in his or her dealings with a regulatory authority.
Section 298 of the Uniform Law sets out examples of conduct that may constitute unsatisfactory professional conduct or professional misconduct. It includes, in s 298(b) of the Uniform Law, 'conduct consisting of a breach of the Uniform Rules', which are defined in s 6 as 'the Legal Profession Uniform Rules made under Part 9.2'[18] and include the UL Conduct Rules.

The Onus and Standard of Proof

[18] Section 420 of the Uniform Law provides that the categories of these Uniform Rules include Admission Rules, Legal Practices Rules, Legal Profession Conduct Rules and Continuing Professional Development Rules.

We adopt the following passage from Chang[19] as to the relevant standard of proof and who bears it:
The Committee bears the onus of proof in relation to the allegations of professional misconduct it makes against the practitioner. The civil standard of proof ('on a balance of probabilities') applies together with the Briginshaw approach, which requires clear and cogent evidence to be adduced by the Committee and for the Tribunal to feel an actual persuasion of the occurrence or existence of relevant facts before it can find the practitioner guilty of professional misconduct (or unsatisfactory professional conduct). The Briginshaw approach applies in disciplinary proceedings, because of the nature and seriousness, and potential consequences, of allegations of wrongdoing (or incompetence) made in such proceedings.
[19] Legal Profession Complaints Committee and Chang [2019] WASAT 67 (Chang) [8]. Citation omitted. See, also, Lawson [7].
Thus, when we express ourselves to be satisfied, make a finding, we do so on the Briginshaw standard.[20]
[20] Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336.
Further, in these reasons, where we have drawn inferences as to Mr Barry's state of mind from circumstantial evidence, we have done so consistent with the principles enunciated in Palmer v Dolman.[21] Specifically:
(a)we have considered the weight which is to be given to the united force of all the circumstances put together;
(b)we have applied the standard of proof at the final stage of the reasoning process;
(c)we have weighed the inference drawn from the proved facts against realistic possibilities as distinct from possibilities that might be regarded as fanciful; and
(d)where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, we have found the allegation not proved.
[21] Palmer v Dolman [2005] NSWCA 361 [41]. See also Westgyp Pty Ltd v Northline Ceilings Pty Ltd [2018] WASC 244 [57].

The LAWA regime

The representations alleged in Ground 1 were allegedly made by Mr Barry to LAWA in respect of matters where Mr Barry was the assigned practitioner. What follows describes the regime governing the relationship between LAWA and a legal practitioner appointed by LAWA to provide legal services to a client.

Legal Aid Commission Act 1976 (WA)

The Legal Aid Commission of Western Australia (LAWA) was established by s 6(1) of the Legal Aid Commission Act 1976 (WA) (Legal Aid Act).
The Legal Aid Act provides that LAWA can establish panels of the names of private practitioners in various areas of practice.[22]
[22] Legal Aid Act, s 40.
It also provides that LAWA will pay a private practitioner for legal services provided in accordance with a scale of fees prescribed by the rules or, if there is no scale of fees, a 'percentage as may be prescribed by the rules of the fees that would be payable to [the practitioner] in the ordinary course of practice and are approved'. The practitioner will also be reimbursed for disbursements and out of pocket expenses that are properly incurred.[23] But, other than counsel fees, the private practitioner must first pay the approved disbursement or out-of-pocket expense themselves, before seeking reimbursement.[24]

Professional Services Agreement

[23] Legal Aid Act, s 14(1).

[24] Legal Aid Act, s 42.

The 'Professional Services Agreement for Legal Aid WA Panel and List Members'[25] (PSM) is expressed to be an agreement between LAWA and the relevant practitioner. Clause 3 states that the agreement 'makes provision for the terms upon which the Practitioner will engage with LAWA and provide legal services as a member of a panel or list'.[26] The version before us was signed (but not dated) by Mr Barry and the Director of LAWA.[27]
[25] Exhibit 1, page 563.
[26] Exhibit 1, page 567.
[27] Exhibit 1, page 590.
Clause 1 defines 'grant of aid' as 'the funding of legal services by [LAWA]' and 'legal services' as 'services provided by a practitioner that are funded by [LAWA]'.[28]
[28] Exhibit 1, page 566.
Clause 5 provides that the practitioner 'must comply with the Private Practitioner Manual and any other policies, standards or guidelines that [LAWA] may specify in writing from time to time'.
Clause 17 provides that LAWA will only assign grants of aid to the practitioner 'if they are a member of the panel or list relevant to the matter type the subject of the grant of aid'.[29]
[29] Exhibit 1, page 570.
Clause 22 provides, in part, that the practitioner has an obligation to 'act honestly, ethically and professionally' in all LAWA matters assigned to them.[30] Similarly, cl 23 provides that 'when working with' LAWA, the practitioner 'will at all times': (a) 'act honestly and in good faith'; (b) 'respond fully and promptly to requests for information'; and (c) comply with the PSM, the PPM and any other policies, standards or guidelines 'as specified in writing' by LAWA.[31]
[30] Exhibit 1, page 571.
[31] Exhibit 1, pages 571 - 572.
Part 7 of the PSM is headed, 'Audits and Compliance'. Clause 36(a) states that LAWA 'may, in its sole discretion, conduct an audit of the Practitioner at any time' after giving him or her written notice.[32] Mr Barry agreed with the Board's assertion that the purpose of these audits is to enable LAWA to determine whether the time the practitioner has claimed on the file is in accordance with the approved grant of aid.[33]
[32] Exhibit 1, page 574, specifically clause 36(a) and (b).
[33] Annexure A to the Board's Application to the Tribunal made 1 August 2023 (Annexure A), para 23; Respondent's Response to Application Annexure A (Response), para 3. ts 20, 25 July 2024.
Clause 37 concerns 'monitoring compliance'. It provides that LAWA 'may in its sole discretion, investigate, assess and address a compliance issue at any time'.[34] It also contains a non-exhaustive list of ways in which LAWA may deal with compliance issues including, relevantly, by referring it to the Board.

Private Practitioner Manual for Legal Aid Panel and List members

[34] Exhibit 1, page 566. Clause 1 defines 'compliance issue' to include a breach of the Legal Aid Act, the PSM, the PPM, or any other guideline, policy or standard that the Practitioner is required to comply with.

As referred to above, cl 5 of the PSA requires the Practitioner to comply with the 'Private Practitioner Manual' (PPM),[35] cl 2 of which says that it 'makes provision for the terms upon which a Practitioner will engage with [LAWA] and provide legal services as a member of a panel or list'.[36]
[35] The applicable version of the PPM is version 7, which commenced on 7 March 2019.
[36] Exhibit 1, page 479. Clause 1 of the PPM defines 'list' as 'a list of private practitioners set up by [LAWA] to provide certain legal services and which is not governed by the requirements in s 40 of the Act'. It defines 'panel' as 'a list of private practitioners set up by [LAWA] to provide certain legal services to assisted persons in accordance with s 40 of the Act'.
Clause 3 states that the manual 'is to be read together with the [PSA]'.[37]
[37] Exhibit 1, page 479.
Clause 9.16 is titled 'Payment limit' and provides as follows:[38]
Generally, [LAWA] will not pay costs and disbursements in respect of a grant of aid that are in excess of the payment limit stated in the grant letter.
However, the assigned practitioner may obtain prior approval from [LAWA] for an extension to the terms of the grant of aid, to cover additional legal services that are reasonably required in the particular matter the subject of the grant of aid (refer to clause 12).
[38] Exhibit 1, page 486.
Clause 12 concerns an 'Extension to a Grant of Aid'.[39] It provides that 'an extension to a grant of aid may be requested to allow for the cost of further legal services to be provided under the grant of aid or for further costs of disbursements to be incurred' (cl 12) but such a request 'must be made prior to performing the further legal services or incurring the further disbursement': cl 12.1.[40] That is, a request must be made in advance; it cannot be made retrospectively.
[39] Exhibit 1, page 488.
[40] Exhibit 1, page 488.
Further, cl 12.2 provides that '[e]very request for an extension must be complete and accurate, to enable [LAWA] to determine whether to approve the extension', and requires the practitioner to 'notify LAWA as soon as practicable after becoming aware of any inaccuracy in the information supporting a request for an extension …'[41].
[41] Exhibit 1, page 489.
Clause 12.5 provides that the practitioner will be provided with written confirmation as to whether the extension has been approved or refused.[42]
[42] Exhibit 1, pages 490 - 491.
Part 3 of the PPM concerns 'Assigning Grants of Aid'. Clause 13.1 provides that LAWA 'will not assign a grant of aid to a private practitioner unless that practitioner is a member of the panel or list relevant to the matter type the subject of the grant of aid or disbursement grant'.[43] Further:
(a)cl 17 allows LAWA to transfer an assigned matter to another practitioner but confirms that transfers 'will not occur automatically on request' and 'the transfer of any assigned matter to another practitioner must be approved' by LAWA;[44]
(b)cl 21.4 provides that the practitioner 'is responsible to [LAWA] for the conduct and performance of all legal services assigned to them;'[45] and
(c)cl 21.4.1 provides that '[a]ll legal services in an assigned matter must either be performed by the assigned practitioner, or by another practitioner as provided in the following table'.[46] In short, a practitioner who is assigned a matter can perform any service in that matter, while another practitioner who is a member of the panel can also perform any such service 'as instructed by [the] assigned practitioner', but a 'non-panel practitioner' can (save for irrelevant exceptions) only perform services with the prior approval of LAWA.[47]
[43] Exhibit 1, page 492.
[44] Exhibit 1, page 495.
[45] Exhibit 1, page 502.
[46] Exhibit 1, page 503.
[47] We note that in a subsequent version of the PPM (v8, approved on 1 July 2021) a non-panel practitioner is permitted to attend court to inspect documents. However, the allegations concern conduct which occurred before that amendment.
Clause 21.4.1.2 explains that 'prior approval' in that context means^'approval obtained by the assigned practitioner in writing from [LAWA], to instruct a specific non-panel practitioner to perform specified legal services in the assigned matter'.[48]
[48] Exhibit 1, page 504.
If a legal service is performed in breach of clause 21.4.1.2, LAWA may treat the breach as a 'compliance issue', as defined in the PSA, and may decline to meet the assigned practitioner's claim for payment for that legal service.[49]
[49] PPM, cl 21.4.1.3.
Thus, a practitioner who has been assigned a grant of aid for a matter cannot assign work on the file to another practitioner who is not a panel member without obtaining the prior approval of LAWA.
Mr Barry accepted that 'grants of aid cannot be assigned to a nonpanel practitioner' but, he submitted, the 'full picture is more complex'. Amongst other things, he submitted that 'non-panel practitioners can perform and charge for work on a LAWA file provided it is not strictly legal work, including inspecting subpoenaed materials/Court files' and they can 'attend and charge for directions, trial listing dates and any other hearings in the Magistrates Court (save at Stirling Gardens) where the nature of the hearing is procedural and there is no hearing of argument as to law or facts'.[50]
[50] 'Respondent's Submissions for Hearing on Liability' dated and filed 19 July 2024 (Respondent's Submissions), para 14(c)(ii).
The question of attendance at the Magistrates Courts for simple matters is addressed by the table to cl 21.4.1.1, but we reject the submission as to the inspection of subpoenaed documents or court files, for which there is no basis in either the PSA or PPM. Indeed, the table in clause 21.4.1.1 of the PPM explicitly provides for a non-panel practitioner to attend in prison, detention centres and other places of detention to 'collect or deliver documents' or 'take a statement'. That strongly suggests that LAWA did not intend a non-panel practitioner to be allowed to inspect subpoenaed documents or court files; if it did, it would have provided for it in the same way that it provided for those other minor matters.
The PPM also provides for good record keeping.[51] It requires the practitioner to obtain and retain records and information substantiating the performance of all legal services and claims for costs and disbursements in matters assigned to them.
[51] PPM, cl 23.4. Exhibit 1, page 508.
'Claiming a Payment From Legal Aid WA' is dealt with under Part 6 of the PPM. Relevantly, cl 26.1 provides:[52]
Any claim for payment must be accompanied by a report that properly substantiates the claim, including:
•The specific nature of the legal services provided, including the date, purpose and nature of any court appearance;
•The person who performed the legal services, including any practitioner who was not the assigned practitioner, any restricted practitioner, or any person who was not a practitioner and who was working on the assigned matter under the supervision of the assigned practitioner;
•If prior approval was obtained for a non-panel practitioner to appear under clause 21.4.1, details of the person who appeared, the date and nature of the appearance and the date prior approval was obtained. …

Guide to Claiming Payment

[52] Exhibit 1, page 512.

LAWA has also produced a 51 page 'Guide to Claiming Payment for Legal Aid Panel and List Members' (Guide).[53] We are satisfied that it falls within the scope of cl 5 of the PSA detailed above.
[53] Exhibit 1, page 744. Although the version before us is a later version of the Guide than that which applied to Mr Barry's alleged conduct, the document history shows that the relevant clauses were not changed by relevant amendments.
Clause 10 makes clear that a practitioner can only claim payment for legal services 'actually provided or disbursements actually incurred' and is 'not entitled to automatically claim payment to the maximum amount allowed under the terms of the grant'.[54]
[54] Exhibit 1, page 753.
Clause 17 says that the assigned practitioner will be provided with a grant letter which itemises each of the legal services that may be provided and the maximum costs payable for their provision, together with nominal disbursement amounts.[55]
[55] Exhibit 1, page 766.
Clause 18 clarifies that an item in a grant letter may specify a nominal disbursement amount between $20 and $50 to cover postage, petties and administrative costs such as photocopying.
Clause 19 provides that '[a]ny claim for more than the maximum amount specified in the grant letter must be supported by an approved extension to the grant of aid in accordance with clause 12 [of the] PPM'.[56] As we outlined above, cl 12.1 of the PPM specifies that a request for an extension must be made in advance.
[56] Emphasis in original.
Clause 21[57] provides that if the full allowance cannot be used, preparation and court attendance time may be claimed at the applicable hourly rate on a pro-rata basis. It makes clear that preparation time and court attendance time are entirely separate, saying:
Preparation time cannot be claimed against any unused portion of the court attendance time allocated to a matter unless prior written approval is obtained from [LAWA]. However, [LAWA] will accept a claim, without prior approval, for court attendance time that includes time spent at court negotiating and liaising with interested parties on the day of the court attendance for that matter, if details of the time spent on specific activities is provided.[58]

Audit and Compliance Policy

[57] Exhibit 1, page 767.

[58] Exhibit 1, page 767. Emphasis in original.

The final policy document relevant to a private practitioner being assigned a grant of aid is the 'Audit and Compliance Policy for Legal Aid WA Panel and List Members'[59] (Audit Policy).
[59] Exhibit 1, page 724.
The version of this document before us took effect on 25 November 2021, after LAWA's audits of Mr Barry's grants. We are not otherwise able to identify the version that would have applied and the Board, therefore, does not strictly rely on the Audit Policy but, rather, refers to it as an example of the general processes that would have been followed.[60] No objection was taken to that course.
[60] ts 22, 25 July 2024.
The Audit Policy contains a flow chart of the audit process.[61] Relevantly, a part of the flow chart titled 'How do we audit?'[62] summarises the audit process as follows:
•Firm/practitioner provided with prior notice of the files that will be audited
•Comprehensive audits can be on site or files can be sent to LAWA
•Routine audits will require firms/practitioners to forward requested information as required
•If there are no issues a final report will be prepared and sent to the firm/practitioner
•Where issues or concerns are found, the firm/practitioner will be provided with a preliminary report and given a specified time to respond
•LAWA will consider any further information provided and send a final report to the firm/practitioner
•…
[61] Exhibit 1, page 727.
[62] Exhibit 1, page 727.
Under the heading 'Audit outcomes' the flow chart shows three possible outcomes: compliant, with no further action required; compliant with commentary - generally dealt with by education and/or training; and non-compliant. Included in the list of possible consequences of noncompliance is referral to the Chairman of the LAWA for urgent consideration to refer the matter to the Board or the Legal Profession Complaints Committee (LPCC).[63]

Family Law and Restraining Order Audit Review Sheet

[63] Exhibit 1, page 727. The Audit Policy refers to the LPCC - the Legal Profession Complaints Committee. Since 1 July 2022 that committee has been known as the Legal Services and Complaints Committee.

The copies of the Audit Sheets completed by Mr Barry are, in many cases, difficult to read. To assist, a blank version of those sheets has been provided to us. It is headed 'Family Law & Restraining Order Audit Review Sheet'.[64] Relevantly, it includes the following:
If a non panel practitioner undertook work on this file, please provide details and evidence of supervision.[65]
[64] Exhibit 1, page 517.
[65] Emphasis in original.
We agree with Ms Young SC that the provision of such details enables LAWA to check whether prior approvals have been given for the nonpanel practitioner to undertake work on the matter, or whether the type of work undertaken by the non-panel practitioner falls into a category of work that can be done without prior approval.[66]
[66] ts 24, 25 July 2024.
The section of the Audit Sheet titled 'Declaration and Final Checklist' contains several declarations and prompts that documents and information have been provided. Relevantly, the person completing the Audit Sheet must confirm (by giving their name and signature) that:
(a)they have attached 'all relevant documents … to substantiate claims submitted on the file (including receipts i.e. agent/counsel invoices, evidence of supervision if relevant etc)'; and
(b)'all of the information provided … is complete and accurate'.
The Audit Sheet then provides a space for the name and role of the person completing the review sheet to be inserted.
Most significantly, the assigned practitioner must also give their name and signature to verify that 'all the information provided in the form is complete and accurate'. In that way, the form acknowledges that the assigned practitioner may not be the person who fills out the Audit Sheet but confirms that they have ultimate responsibility to verify the accuracy of the information provided.

The audit of Mr Barry's files and its aftermath

The first LAWA audit: May 2020 to September 2020

By an email of 18 May 2020, Mr Barry was notified that LAWA had commenced an audit of JC's LAWA files and that six files for which he was a panel practitioner were included.[67]
[67] Exhibit 1, page 520 - 521.
Although it is not apparent on its face, we were told by Ms Young SC[68] (without objection from Mr Warnick SC) that attached to that email was a formal letter addressed to Mr J, a principal of JC, which identified those of JC's files to be audited.[69] The letter included the following:[70]
It is important that the review sheets you complete are accurate and contain all details relevant to the file. This is required to substantiate the payments made against each file. Failing to provide the requested information may form part of the overall audit findings of your firm. …
If you delegate the completion of these forms to a colleague, please ensure that you have verified the information before it is returned to LAWA as you are responsible for the information that is provided.[71]
[68] ts 25, 25 July 2024.
[69] Exhibit 1, page 523.
[70] Exhibit 1, page 523.
[71] Emphasis in original.
On 13 July 2020, LAWA wrote to Mr J at JC to provide its preliminary report concerning the 20 files that were the subject of the audit.[72] That preliminary report identified non-compliances in relation to four of Mr Barry's files: clients SG, HH, DM and SC.
[72] Exhibit 1, pages 525 - 542.
JC responded to LAWA by letter dated 10 August 2020,[73] and on 11 September 2020 LAWA provided a final audit report, which confirmed that those four files had been deemed non-compliant.[74]

The second LAWA audit: June 2021 to December 2021

[73] Exhibit 1, pages 543 - 547.

[74] Exhibit 1, pages 548 - 557.

In response to summary findings made by the LPCC against Mr Barry,[75] LAWA commenced a second audit on 1 June 2021 of 10 of Mr Barry's files.[76]
[75] On 15 December 2020, LPCC exercised its summary conclusion powers in relation to conduct of Mr Barry which occurred from about November 2018 to February 2019 when Mr Barry was employed as a solicitor by another law firm. In short, it found that Mr Barry had made knowingly made false entries claiming to have done work he had not performed. Mr Barry was publicly reprimanded and fined $2,000.
[76] One of the files (JA) was assigned to Mr J, but LAWA's letter states that Mr Barry 'undertook a significant amount of work on [it] including submitting extension requests and claims'.

LAWA provided a preliminary report to Mr Barry concerning these files on 22 June 2021, which stated that only two of those 10 files were compliant and provided details of the non-compliance of the other eight files.[77]
[77] Exhibit 1, pages 596 - 611.
Mr Barry responded to the preliminary report on 6 July 2021[78] and LAWA provided a final report in a letter dated 9 September 2021, in which it found each of the eight files to be non-compliant.[79]
[78] Exhibit 1, page 659. Although signed on behalf of JC, the letter lists Mr Barry as the relevant person to contact with any enquiries, refers to the letter of 22 June 2022 and speaks in the first person.
[79] Exhibit 1, page 664 and pages 669 - 679.
Notwithstanding that LAWA's letter of 9 September 2021 provided its final audit findings, Mr Barry provided a further response on 11 October 2021 with respect to the eight non-compliant files.[80] He also provided further information, including transcripts on 25 November 2021.[81]
[80] Exhibit 1, pages 706 - 708.
[81] Exhibit 1, pages 737. Those transcripts are not before the Tribunal.
On 17 December 2021, LAWA issued an amended final audit report, which identified, with some variations from the previous final audit report, that the same eight files were non-compliant.[82]

LAWA referral to the Board

[82] Exhibit 1, pages 737 - 742.

By letter dated 1 February 2022 to the Board's Law Complaints Officer, LAWA's CEO advised of the result of LAWA's two audits of Mr Barry's files.[83]
[83] Exhibit 1, pages 795 - 796.
On 25 October 2022, the Board advised Mr Barry that it had reviewed LAWA's information, decided to investigate him and required him to provide written submissions verified by statutory declaration addressing certain matters.[84]

Mr Barry's statutory declarations

[84] Exhibit 1, pages 797 - 817.

By a letter attached to his First Statutory Declaration, [85] Mr Barry advised that he was being assisted by Ms A who had drafted the letter, which the statutory declaration affirmed was ' true and correct'.
[85] Exhibit 1, pages 826 - 833.
By letter of 20 December 2022, the Board required Mr Barry to provide further information because, in its view, the approach taken in the letter attached to his First Statutory Declaration was inappropriate.[86]
[86] Exhibit 1, pages 834 - 836.
Consequently, Mr Barry provided the Second Statutory Declaration,[87] which also attached a separate letter from Ms A that by the statutory declaration Mr Barry declared to be true and correct.
[87] Exhibit 1, pages 837 - 839.
In the letter attached to his Second Statutory Declaration, Mr Barry admitted that parts of the letter attached to his First Statutory Declaration were wrong, and he sought to correct them.
As previously noted, by Ground 2 the Board alleges that Mr Barry made deliberate misrepresentations in the letter attached to his First Statutory Declaration.

Mr Barry's ADHD condition

Mr Barry was diagnosed with ADHD in 2016.[88] He described having a degree of shame about having ADHD.[89] His treating psychiatrist, Dr Willem van Wyk, also noted that Mr Barry was '[a]shamed of his cognitive limitations' in a letter dated 10 August 2016.[90]
[88] Witness Statement of Mr Barry in Exhibit 1, page 903, para 34; Exhibit 1, page 894.
[89] Witness Statement of Mr Barry in Exhibit 1, page 903, para 35.
[90] Exhibit 1, page 892.
Mr Barry described discontinuing his ADHD treatment in 2016 because he thought he was 'cured'. He acknowledged this was premature and that, in hindsight, he wanted to be off the medication as soon as possible and did not want anyone in the profession to know about his condition.[91] He did not seek treatment again until August 2023, when he was re-referred to Dr van Wyk.[92]
[91] Witness Statement of Mr Barry in Exhibit 1, page 903, para 36.
[92] Exhibit 1, page 886.
Mr Barry further stated that he had been taking a relatively high dose of his ADHD medication since August 2023, and that he had noticed a considerably positive impact across all areas of his professional life. He acknowledged that he would likely be on the medication for the rest of his life, and that his ADHD condition was something to be managed, as opposed to being cured.[93]
[93] Witness Statement of Mr Barry in Exhibit 1, page 903, paras 37 - 38.
In his witness statement, Mr Barry stated:[94]
I have the insight to see that ADHD did not cause the conduct the subject of these proceedings. Filling in the audit sheets to say that [another practitioner][95] was only doing clerical work was not an oversight brought about by rushing the audit.
The medication, combined with a greater understanding of my own cognitive limitations contributed to by the condition, has greatly assisted however in slowing me down to the extent that I am more measured and deliberate in the way I work and approach any decisionmaking process, which gives me confidence that I could eliminate many of the practices which have brought me to this point.
I remain thoroughly embarrassed by my conduct which has come to define me in the eyes of the profession far more negatively than my ADHD diagnosis could have.
[94] Witness Statement of Mr Barry in Exhibit 1, page 903, paras 39 - 41.
[95] See below, Representation 5.
Mr Barry was asked about this part of his witness statement during crossexamination. Mr Barry stated that 'the ADHD does not excuse my conduct', and that 'it doesn't remove your ability to see right from wrong', and that claiming for work he had not performed 'were wrong acts'.[96] He acknowledged:
I can't blame ADHD for - for much of my - of my conduct. Look, it's - this is on me. …
I acted - there's no doubt I acted in the wrong way. The - the - I knew what the - I knew what the various policies said.
[96] ts 52, 25 July 2024.
Mr Barry was asked why he did not go to his doctor after the LPCC made disciplinary findings against him in December 2020. It was put to him that he did not go to his doctor at that time because he did not think his conduct was caused by his ADHD but, rather, because he made a decision to do something that was wrong. Mr Barry's response was that he did not go to his doctor because he did not like the label of ADHD, which he found to be 'hobbling', and that he 'didn't enjoy being medicated'. He said that he also thought people would think less of him 'in a professional sense'.[97]
[97] ts 53, 25 July 2024.
His evidence was that the conduct the subject of these proceedings was not caused by his ADHD, but rather that his ADHD contributed to it. He stated that his ADHD 'does not prevent me from seeing right from wrong' but observed that people with ADHD had a tendency to shortcut any process involving careful consideration, and put less effort into the judgment process, and as a result their judgments were frequently poor.[98]
[98] ts 186 - 187, 26 July 2024.
Nonetheless, and inconsistently with the foregoing, with respect to his representations that he had attended court when, in fact, another practitioner had done so,[99] Mr Barry said that he thought his ADHD impacted his shorthand thought processes and his reasoning that the claim was broadly justifiable.[100] Mr Barry further stated:
I can't blame all of this on ADHD. There's the - it's an element of it, but it would be, but it's just not the case to say, 'I have ADHD, therefore, you know, I don't have any responsibility,' and I can obviate on that basis; that's not what I'm suggesting.
[99] See for example, Representations 3,4 and 5.
[100] ts 187 - 188, 26 July 2024.
Mr Barry's treating psychiatrist, Dr van Wyk, wrote a letter dated 8 December 2023,[101] which he described as 'a clinical report, not a medico-legal report'. The letter confirmed that he diagnosed Mr Barry with ADHD on 29 June 2016. Dr van Wyk stated:
Mr Barry was re-referred to my practice on 19 August 2023 by Dr Depak Naran for opinion and (ongoing) management of his ADHD. Mr Barry reported that he became the subject of disciplinary proceedings in the State Administrative Tribunal with the Legal Practice Board who are moving for him to be struck off the roll of practitioners for recklessly/dishonestly overcharging on a number of files and alleging that he was misleading in his responses to them.
Mr Barry accepted that his billing practices were "sloppy" and even "reckless", but denies that he practices dishonest overcharging. With regard to the misleading responses, he admitted that he did not check a response prepared for him by a barrister carefully enough to ensure that all details were correct.
From a psychiatric perspective it is highly likely that Mr Barry's untreated ADHD has contributed to these issues and that ADHD medication will mitigate the risk of future occurrences to a larger or lesser extent. It is also noted that Mr Barry was under high levels of stress during this period and this would have perpetuated the impact of his ADHD-related cognitive inefficiencies.
[101] Exhibit 1, pages 886 - 887.
In this letter, Dr van Wyk also confirmed that at a follow-up appointment on 7 December 2023, Mr Barry had self-reported that the ADHD medication was 'making a difference' because '[h]e has less difficulty finishing tasks whereas he didn't have the patience to think things through before medication'.[102]
[102] Exhibit 1, page 886.
In this regard, Mr Warnick SC submitted that:[103]
(a)Mr Barry's ADHD condition 'contributed to sloppy and reckless billing practice and lack of attention to detail'.
(b)We should consider two journal articles about decision-making deficits in persons with ADHD.
(c)The proceeding has had a beneficial effect on Mr Barry because it has 'forced him to confront the reality of his ADHD condition and seek treatment', and that he was now taking medication and noticing positive effects.
(d)'The extreme complexity of the LAWA compliance regime makes LAWA panel practice a high-risk milieu for a practitioner with an untreated ADHD condition, which is likely to be associated with "difficulty investing mental effort" '.
[103] Respondent's Closing Submissions on Liability dated 6 September 2024 (Respondent's Closing Submissions), paras 13 - 14 and 16.
Ms Young SC submitted that:[104]
(a)Mr Barry's diagnosis of ADHD from 2016 onwards does not explain or excuse his behaviour, referring to Mr Barry's witness statement and oral evidence where he stated that ADHD did not cause his conduct and did not remove his ability to see right from wrong.
(b)We should reject Mr Barry's statement in his oral evidence that his ADHD condition may have contributed to his conduct where the evidence shows that he made a deliberate rationalisation that he had done good work on the file, or where a claim was made for expedience to avoid further paperwork.
(c)We do not need to consider the two ADHD journal articles, and even if we did, we should give them no weight because there is no expert evidence identifying how the conclusions in the articles can be connected to Mr Barry's condition or symptoms.
[104] Legal Practice Board's Closing Submissions dated 4 July 2024 (Board's Closing Submissions), paras 14 - 18.
We are satisfied that Mr Barry had ADHD at the time of the relevant conduct and that he was not receiving treatment for it at that time.
We also accept that he is now taking medication to manage his ADHD and that he now experiences less difficulty finishing tasks. We found Mr Barry's evidence to be credible in this regard.
We also thought Mr Barry answered truthfully with respect to his motivation for re-engaging in treatment in August 2023. We do not think he did so for the purpose of using his ADHD condition as an excuse in this proceeding. We accept that he was embarrassed, that he disliked taking the medication and that he was concerned about being thought less of because of his condition.
However, what is less clear to us is the causative link between Mr Barry's ADHD and his conduct. Dr van Wyk refers to what Mr Barry has told him, which is that Mr Barry engaged in 'sloppy' or 'reckless' billing practices. Dr van Wyk also refers to Mr Barry denying that he practised dishonest overcharging.
However, inconsistent with the assumption on which Dr van Wyk's report has been prepared (i.e. that Mr Barry was sloppy but not dishonest), Mr Barry has admitted that he was intentionally dishonest in making some of the representations, and that he rationalised his conduct by saying that good work was done on the file. That undermines whatever weight we might otherwise have given Dr van Wyk's report which, given it is a clinical and not medico-legal report, would not have been significant, in any event.
Further, there is no evidence that links Mr Barry's ADHD condition to dishonesty or its rationalisation and, as noted above, Mr Barry's evidence disclaimed any such link.
Similarly, there is nothing before us that links Mr Barry's ADHD to a failure to properly supervise a junior colleague in the billing of matters to LAWA, which is another example of the conduct the subject of these allegations.
For these reasons, we have been unable to give Mr Barry's ADHD any material weight in determining his state of mind at the time he made the various representations.
We have also not had regard to the journal articles about ADHD. In the absence of expert evidence linking their contents to Mr Barry's conduct, we find it inappropriate to do so.

Mr Barry's evidence

As noted above, Mr Barry gave evidence in which he adopted a witness statement and was cross-examined.
During that cross-examination, there were many instances of what appeared to be an inability to focus on the question being asked, answer the question being asked in a clear, linear, fashion and otherwise stay on task. By way of example, on three occasions on the first day, he spoke about the first LAWA audit process when he was being asked questions about the summary action taken by the LPCC.
It may be that some of these aspects of his evidence represent a manifestation of his ADHD, although consistent with our previous discussion, the evidence does not go so far. In any event, we do not consider these matters to represent an evasiveness or reluctance to answer the question posed.
Equally, we did not form a negative view of Mr Barry due to what might be described as verbal idiosyncrasies, including stuttering and mumbling. Rather, we are satisfied that they are personal to Mr Barry and did not represent a technique aimed at avoiding addressing the issues or questions at hand.
Equally, we take no issue with his not infrequent struggle to recall particular aspects of LAWA grants and Audit Sheets. That lack of recall is not surprising given the passage of time.
However, there were some aspects of Mr Barry's evidence which did him no credit. For example, on occasion he appeared to take issue with Ms Young SC, who appeared for the Board, on minor points of detail which were of little to no relevance.
But, on the other hand, he addressed some of the very significant allegations of which he is accused openly, forthrightly and frankly. For example:
(a)as we have noted, when being asked whether he recommenced medication for ADHD after being summarily sanctioned by the LPCC in December 2020, he was very clear that his ADHD was not to blame for that conduct, saying that his ADHD did not prevent him from knowing the difference between right and wrong and that he knew what the policies said and made the claims notwithstanding;
(b)he admitted that the summary action taken by the LPCC 'reflects very poorly' on him;[105]
(c)as will be seen, on more than one occasion he admitted that his conduct was intentionally dishonest. For example, he admitted that he had told LAWA that he had appeared in court when, in fact, a junior solicitor, Mr RJ, had done so and that he had lied to hide the fact that Mr RJ was not a panel member and therefore was not allowed to charge for the court appearance.
[105] ts 54, 25 July 2024.
He also expressed an appreciation for the over-riding need for honesty on several occasions.
The above matters are to his credit. They make us more likely to agree with him where he disputes other allegations, or where he has made inconsistent statements.
Finally, in this regard, we note the Board's submissions that Mr Barry lacked credibility due to various inconsistent statements made over time. Where those inconsistent statements concern representations, we deal with them below under the particular representation. Another inconsistency relied upon by the Board was that, in the letter attached to his Second Statutory Declaration, Mr Barry stated that he 'has not been subject to disciplinary proceedings in relation to his substantive practice'.[106]
[106] Exhibit 1, page 846.
When asked about this in cross-examination, Mr Barry readily accepted that it was incorrect, saying that he had not realised the error until that moment.[107] He accepted that it was 'absolutely inaccurate' and 'demonstrably wrong' without hesitation.[108] He thought that he must have 'glossed over it'[109] and said that it would be 'foolhardy' for him to have included such a statement when the Board would know that it was inaccurate.[110]
[107] ts 56, 25 July 2024.
[108] ts 61 - 62, 25 July 2024.
[109] ts 56, 25 July 2024.
[110] ts 61, 25 July 2024.
In written closing submissions, Mr Warnick SC submitted that in making those concessions, Mr Barry was 'confused' as to what he was being asked about. Mr Warnick SC emphasised that the statement made in the letter to the Second Statutory Declaration concerned Mr Barry's disciplinary history regarding his 'substantive' practice. That is, it was submitted, the statement was to the effect that Mr Barry has no disciplinary history regarding the competent and diligent provision of legal advice.
We accept that there is some strength to Mr Warnick SC's submission. The preceding paragraph in the letter to the Second Statutory Declaration, in which Mr Barry accepts the need to address time recording and billing processes, supports that submission.
In any event, we consider it implausible to suggest that a practitioner would deliberately misrepresent their disciplinary history to the Board, which holds the relevant records, and which can, therefore, easily and quickly confirm or otherwise the veracity of the representation.
In short, this issue does not cause us to depart from our impression of Mr Barry as a witness who was trying to do his best most of the time but who was often confused (or, to use Mr Barry's own words, 'badly muddled')[111] and, from time to time, was unhelpfully fixated and argumentative on peripheral issues.
[111] ts 175, 26 July 2024.

Ground 1: Representations to LAWA

We will now consider the Board's 19 allegations of false or misleading representations.
Before we do so, we note two important considerations.
First, we have proceeded on the basis that each alleged representation may be considered a 'particular' to Ground 1.
That is, it is not necessary for the Board to prove each allegation to make out Ground 1.[112]
[112] See, by way of analogy in criminal proceedings, Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434 [38].
Mr Warnick SC implicitly accepted that approach at the hearing of closing submissions on 10 October 2024, when he took no objection to the Board withdrawing Representation 20.
Secondly, and to the same effect, we have proceeded on the basis that a representation was made, even if we find that it was made in only one of the several different forms alleged.
So, for example, if it is alleged that a representation was made in both an invoice and an Audit Sheet, and we are satisfied that it was made in the invoice, then it does not matter if it was not also made in the Audit Sheet. That is, a representation made in one form is made out, even if we find that it was not made in the other form or forms alleged.

Representation 1: JA matter

The Board alleges[113] that in an Audit Sheet completed and signed by Mr Barry and submitted to LAWA around 8 June 2021, Mr Barry represented that he appeared at a case management conference for Ms JA on 7 July 2020.[114]
[113] Annexure A, para 28(1).
[114] Exhibit 1, pages 90 - 91.
The Board further alleges that, consistent with the relevant JC time recording system, another practitioner of the firm, Ms SK (who was a LAWA panel member), attended court on that date and there is no record of Mr Barry attending a case management conference, or court at all, in that matter on that date.[115]
[115] Exhibit 1, page 97.
At the time the Audit Sheet was completed, the court appearance in question had taken place approximately one year earlier.
In his formal response to the Board's allegations filed with its application to the Tribunal (Response),[116] Mr Barry stated that he made the representation in error, and that it was a mistake. He stated that reviewing the files for the audit 'was a hugely complex, laborious and above all confusing process involving cross-checking time entries, calendar entries, emails, grants, invoices and Court Orders'. He pointed out that there was nothing to be gained by the misrepresentation because JC would have been entitled to be paid the sum as Ms SK was on the panel. Confusingly he stated that his error was not 'done either intentionally or with reckless indifference as to whether it was true or not' and that he was recklessly indifferent to his obligations of honesty and good faith.
[116] Response, para 4(1).
His written submissions filed prior to the hearing were to the same effect.[117]
[117] Respondent's Submissions, para 20.
In cross-examination at the hearing, Mr Barry confirmed the Audit Sheet was in his handwriting, and that he remembered completing it.[118]
[118] ts 63, 25 July 2024.
Mr Barry's evidence at the hearing was to the effect that he must not have checked JC's time recording system when completing the Audit Sheet and that, if he did, he 'wasn't careful enough', that it was 'just a mistake' and that he presumed he 'didn't check', otherwise he would have put down Ms SK's name on the Audit Sheet. He disagreed that when he filled out the Audit Sheet that he knew Ms SK had attended but nonetheless put down his own name.[119]
[119] ts 68 and 69, 25 July 2024.
In the letter attached to his Second Statutory Declaration, Mr Barry admitted that he had stated in the Audit Form that he attended when it was Ms SK who attended. The letter then continued:[120]
Mr Barry completed the entry on the basis that there had been a court attendance by the firm (panel solicitor) on that date. In completing the entry, he was focussed on being able to justify the claim. He should have but did not check the firm's time record. His explanation for the conduct was that he completed the entry in a hurry without proper care.
[120] Exhibit 1, page 840.
In cross-examination it was suggested that this statement was inconsistent with his evidence at the hearing. It was suggested to him that he intentionally made a false statement when he completed the Audit Sheet because he knew that Ms SK had attended court but did not think it was an issue to include his own name because she was a panel solicitor.
Mr Barry disagreed with those suggestions. His evidence was that the inclusion of his own name 'was a mistake' due to his not taking proper care to check the firm's records.[121]
[121] ts 70, 25 July 2024.
We agree with the suggestion that what he said in the letter to the Second Statutory Declaration is inconsistent with what he has said since.
There is a clear difference between the statement in the letter attached to the Second Statutory Declaration that he 'completed the entry on the basis that there had been a court attendance by the firm (panel solicitor) on that date' and his evidence to the effect that he must not have checked, or properly checked, the JC time recording system.
The only evidence before us that anyone attended a case management conference on 7 July 2020 is the JC time recording system which show Ms SK as attending a case management conference on that date for two hours (20 units).
In order to record in the Audit Sheet (in June 2021) that he had attended a case management conference on 7 July 2020, Mr Barry must have known that there was a conference on that date. On the material before us, that knowledge can only have come from his consideration of the JC recording system which show that Ms SK attended, not him.
Accordingly, in our view, his evidence at the hearing to the effect that he did not cross-check relevant records cannot be correct. Rather, we find it to be an after-the-fact justification that seeks to rely on the fact that Ms SK is a panel solicitor and there was therefore nothing to gain by the false entry.
On that basis, the error is not careless, but intentional.
With respect to Representation 1, we are satisfied, and we find that:
(a)The representation as alleged was made. The Audit Sheet clearly states that Mr Barry attended a case management conference on 7 July 2020.
(b)The statement was false. Mr Barry did not attend court, rather, Ms SK did. The JC time recording system shows that to be so and Mr Barry admitted as much in cross-examination.[122]
(c)Mr Barry made the representation. As noted above, he admitted that he completed and signed the audit form.
(d)Mr Barry knew, when he made the representation, that it was false. So much follows from the fact that the material available to him that identified the case management conference on 7 July 2020 also records Ms SK as attending. In order to inform himself of the former so as to record it in the Audit Sheet, he must have been aware of the latter.
[122] ts 67, 25 July 2024.
Consistent with Giudice (above), we are satisfied and we find that a deliberate misrepresentation by a practitioner to LAWA in the course of an audit represents professional misconduct. For the avoidance of doubt, we find (consistent with the Board's formulation of professional misconduct in this case)[123] that by making Representation 1, Mr Barry's conduct 'fell substantially short of the standard of competence and diligence that a member of the public is entitled to expect from a legal practitioner'.
[123] Annexure A, para 43; see Uniform Law, s 297(1)(a).
For completeness we also find that the conduct in question was:
(a)contrary to the duty of honesty in r 6(1)(b) of the Conduct Rules;
(b)likely to a material degree to be prejudicial to, or diminish the public confidence in, the administration of justice or bring the profession into disrepute, contrary to r 6(2) of the Conduct Rules;
(c)conduct which demonstrates that the practitioner is not a fit and proper person to practise law, contrary to r 6(2) of the Conduct Rules; and
(d)contrary to his obligations to LAWA under the PSA, GCP and PPM.

Representation 2: JA matter

The Board alleges that Mr Barry represented that he was entitled to claim $40.75 for process service fees in invoices submitted on 21 March 2020 and on 14 September 2020 and in an undated Audit Sheet provided to LAWA on or about 8 June 2021 when, in fact, that was not the case.[124]
[124] Annexure A, para 28(2).
The grant of legal aid for Ms JA's matter made on 5 March 2020 approved 'disbursements of $80 (which includes $55 towards process server fees)'.[125]
[125] Exhibit 1, page 106.
An invoice submitted to LAWA on 21 March 2020 claimed $80 under the heading 'Miscellaneous'.[126] At the hearing, Mr Barry agreed that this was a claim for disbursements.[127]
[126] Exhibit 1, pages 108 - 109.
[127] ts 72, 25 July 2024.
It appears to be common ground that no process service had been engaged at that time. That is, no money had been spent on a process service at the time of the invoice. As such, the invoice should not have claimed any such disbursement.
Mr Barry applied for an extension of the grant of aid, which was granted on 8 July 2020.[128] The application for extension expressly refers to, and seeks coverage for, the costs of a process service up to $142.50, plus GST, giving a total of $156.75. That amount had, by that stage, been incurred and a copy of the relevant process service invoice was attached to the application.[129]
[128] Exhibit 1, page 112.
[129] Exhibit 1, page 111.
Subsequently, a second invoice was submitted to LAWA on 14 September 2020. That second invoice was limited to the costs of a 'process server' being $156.75.[130]
[130] Exhibit 1, page 116.
Both invoices were certified as true and correct by one of the principals of the firm, Mr JJ. Both invoices were submitted by Mr Barry.
As noted above, the allegation is that Mr Barry misrepresented that JC was entitled to $40.75 more than was the case. As such, the allegation proceeds on the basis that what was claimed in total was $197.50, being the original $55 plus $142.50 in the second invoice.
But what was claimed in process service fees was $211.75, being $55 and $156.75 in circumstances where the first invoice did not represent money actually spent on process service and the second invoice did.
The allegation is further confused by the reference to the Audit Sheet.
The Audit Sheet includes an entry for disbursements for process service of $142.50. As should be apparent, that is to the amount incurred and claimed in the second invoice minus the GST. The Audit Sheet makes no reference to the $55 claimed in the first invoice.
Mr Barry has made various admissions in relation to this allegation.
In the letter attached to his First Statutory Declaration of 15 December 2022, he admitted that he charged $40.75 more for process service fees than he was entitled to do so. [131]
[131] Exhibit 1, page 830. It was not the subject of the Second Statutory Declaration.
He also made the following admission in his Response:[132]
I accept that in making this claim and the relevant statement in the Audit Review Sheet without checking whether the service disbursement had been incurred, I acted with reckless indifference to my obligations of honesty and good faith.
[132] Response, para 4(2).
In his written submissions filed prior to the hearing, Mr Barry submitted that he:[133]
… does not dispute that LAWA were overcharged for the disbursement. He believes this occurred because he forgot entirely that he charged $80 plus GST for the disbursement component for Extension 0 and therefore did not remember to make an adjustment when invoicing Extension 1. Mr Barry accepts that it was his responsibility to ensure that the invoices and audit review sheets were correct. He admitted in his Response that in failing to check these matters when completing the audit review sheet, he acted with reckless indifference to his obligations of honesty and good faith.
[133] Respondent's Submissions, para 29.
His evidence at the hearing was consistent with that statement.[134]
[134] ts 73, 77 - 78, 25 July 2024.
We agree with that analysis, to the extent that it is concerned with the second invoice. That is, having charged $55 (or $80) in the first invoice, Mr Barry should have deducted that amount from the second. We also agree that it was Mr Barry's responsibility to ensure that the invoices were correct and that they only sought recovery for disbursements actually incurred.
In its written closing submissions, the Board submitted that we should infer, from the fact that it was not onerous for Mr Barry to check the relevant records, that he made the false claim intentionally.
Alternatively, it submitted that if we accept that he did not check the records, we should find that he was recklessly indifferent to the truth because he could not have known whether the costs were incurred and, knowing that he must not have cared either way when he made the claim.[135]
[135] Board's Closing Submissions, Attachment 1, row 2, column 8.
We are satisfied and we find that the representation alleged was made by the submission of the two invoices. In doing so, we find that the representation was that Mr Barry was entitled to claim $211.75, being the sum of $55 (first invoice) and $156.75 (second invoice).
We are also satisfied that the representation was false, in that Mr Barry dishonestly claimed $55 more than he was entitled to, rather than $40.75, the difference being the GST on $156.75.
That is not precisely the representation alleged but, in our view, the difference is immaterial.
We are also satisfied and find that Mr Barry made the representation in that it was he who submitted the two invoices.
We note the information was certified as true and correct by Mr J. There is no allegation against him. For present purposes, however, that certification does not diminish the culpability of Mr Barry, who submitted the invoices.
Finally, we are satisfied that Mr Barry was careless, rather than recklessly indifferent to the truth or deliberately untruthful.
As will be apparent from the above:
(a)Mr Barry's admission in the letter attached to his First Statutory Declaration did not address his state of mind;
(b)Mr Barry's admission in his Response says that he failed to check whether the service provider expense had been incurred and that he acted with reckless indifference; and
(c)His admission through Mr Warnick SC was to the effect that he 'forgot entirely' that he had previously claimed the $55.
In cross-examination, Ms Young SC suggested to Mr Barry on several occasions that he had known at the time when he submitted the invoices, and when he completed the Audit Sheet, that he was overcharging. On each occasion, Mr Barry denied that was the case, albeit that he also said more than once that he could not remember what he had actually done.[136]
[136] ts 77, 78, 81 and 82, 25 July 2024.
While he sometimes used the language of recklessness, his evidence in each case was to the effect that he should have been more careful.[137] That is, he says that the error was a failure to check, rather than an awareness that his claim may have been wrong but not caring either way.
[137] ts 77, 81 and 82, 25 July 2024.
That is, we are satisfied that in using the language of recklessness, Mr Barry did not use that term in the sense given by the court in Giudice.
Rather, his evidence is to the effect that, while he does not remember precisely what occurred, he thinks it most likely that he simply failed to do the necessary checks to uncover the fact that the first invoice of $80 incorporated a component of $55 for process service.
We accept (as did Mr Barry) Ms Young's SC suggestion that undertaking that check (whether at the time of sending the second invoice or completing the Audit Sheet) was 'quite a simple step'[138] but there is no evidence that he did, in fact, carry out that step.
[138] ts 92, 25 July 2024.
We do not accept that, because it was not onerous for him to check the records, we should find that he was intentionally dishonest.
That amounts to an invitation to find that he did check the records because it was easy to do so.
In our view that falls short of meeting the Briginshaw standard. That is, we do not find an 'actual persuasion' that he checked the relevant records.
In our view, the conduct that attracts opprobrium is the submission of the first invoice on 21 March 2020.
At that time, no process service fee had been incurred and yet, Mr Barry claimed $55 for that purpose.
The second invoice was submitted after the fee was incurred and an extension of the grant obtained. No criticism can be levelled in that regard.
In submitting the first invoice, Mr Barry was (at least) recklessly indifferent to its truth. He was very familiar with the regime whereby $55 of the $80 granted for disbursements was for process service fees.
He must also have been aware that for some invoices, a process service fee may not have been incurred. In those circumstances, he either checked and found none had been incurred, in which case the misrepresentation was deliberately false, or he did not check at all, in which case he turned a blind eye to the possibility.
In the absence of evidence that he did, actually, check, we find him to have been recklessly indifferent.
The same may be said of the Audit Sheet.
In completing it, he plainly had access to the second invoice, for that must be where he obtained the figure (ex GST) of the process service fee.
If he checked the first invoice as well, he would have seen that $80 was claimed of which (he well knew) that $55 was for a process service fee.
But the difference with the Audit Sheet is that he did not include the $55 fee from the first invoice; only the $142.50 from the second.
We therefore find that the representation was not, in fact made in the Audit Sheet, only the invoice.
That does not, however, prevent us from finding the representation made out.
The allegation is that the representation was made in the invoices and the Audit Sheet. In our view the fact that the representation was made in one of them is sufficient.
In that regard, we consider the form within which the representation was made to be a particular, rather than an element of the allegation.[139]
[139]Fermanis v The State of Western Australia [2007] WASCA 84; 33 WAR 434 [46] - [48] and [69].
Reckless indifference to the accuracy of invoices is conduct which amounts to a serious breach of a practitioner's professional duty. In our view it represents professional misconduct, being conduct that falls substantially short of the standard of competence and diligence that a member of the public is entitled to expect from a legal practitioner.
For completeness, we also find that the conduct in question was:
(a)contrary to the duty of honest in r 6(1)(b) of the Conduct Rules;
(b)likely to a material degree to be prejudicial to, or diminish the public confidence in, the administration of justice or bring the profession into disrepute, contrary to r 6(2) of the Conduct Rules; and
(c)contrary to his obligations to LAWA under the PSA, GCP and PPM.

Representation 3: RM

This representation relates to a different client of Mr Barry's, Ms RM.
The Board alleges that Mr Barry represented to LAWA, by completing an Audit Sheet in about June 2021,[140] that:
(a)he had appeared at court hearings on 17 April 2020, 5 May 2020, 30 September 2020, and 4 September 2020; and
(b)Mr RJ, as a non-panel practitioner, had only performed 'drafting and clerical work' on the file.
[140] Exhibit 1, pages 354 - 355.
The Board alleges that those representations were false because Mr RJ had not merely performed drafting and clerical work on the file but, rather, Mr RJ had attended the three court hearings in question.
The Board alleges that Mr Barry knew the representations were false when he made them or was recklessly indifferent to their truth.
In the letter attached to his First Statutory Declaration, Mr Barry stated, incorrectly, that he attended court on 17 April 2020 and 5 May 2020, while Mr RJ attended on 4 September 2020 and 30 September 2020.
In the letter attached to his Second Statutory Declaration, he acknowledged the falsity of those statements and sought to correct them. In that letter Mr Barry stated that:
(a)after further consideration of the material, he accepted that he did not attend any of the four hearings;
(b)when he previously said, in his letter of 15 December 2022, that he had attended hearings on 17 April 2020 and 5 May 2020, he was in fact referring to a hearing on 18 March 2020, which LAWA accepted he had attended;
(c)when completing the Audit Sheet, he was seeking to demonstrate that the work had been done, and done well, on the file; and
(d)he acknowledged that he was wrong to do so.
In his Response, Mr Barry continued to insist that, in his representations, he had been referring to a hearing on 18 March 2020. He said that both he and Mr RJ had attended, that he (Mr Barry) had to leave and that Mr RJ remained. He went on to say that Mr RJ had, thereafter, assumed carriage of the matter and Mr Barry acknowledged a failure to supervise. He concluded by accepting that he was 'recklessly indifferent' in not reporting accurately on this matter.[141]
[141] Response, para 4(3).

That is, Mr Barry's evidence was that a LAWA assessor would have understood that the work done exceeded the scope of the grant and that the invoice claimed an additional sum, which Mr Barry was not entitled to claim but which the 'report' justified.[327]
[327] ts 158, 26 July 2024.
We do not accept that the 'report' does anything of the sort. Neither does the narrative in the Audit Sheet, which stated: '[t]his is a matter where we have gone considerably beyond the scope of the grant and have prepared affidavit material and attended hearings free of charge'. [328]
[328] Exhibit 1, page 422.
Again, there is nothing in that text which suggests, let alone explains, that disbursements were claimed to cover additional preparation time.
In our view, the report did no more than what Mr Barry was required to do by clause 26.1 of the PPM (above at para [62]); provide a report accompanying a claim for payment that properly substantiates the claim.
In his written closing submissions, Mr Barry admitted that he had been recklessly indifferent to the truth of the representation.[329]
[329] Respondent's Closing Submissions, para 5.
The Board relies upon Mr Barry's admission in his evidence at the hearing that he knew, when he submitted the invoice, that no process service fees, had been incurred.[330]
[330] Board's Closing Submissions, Attachment 1, row 18, column 8.
With respect to representation 18 we are satisfied, and we find:
(a)Mr Barry represented in Invoice 193997 that he was entitled to claim the $55 in process service fees (by claiming the full disbursement of $80). He did so because he certified and submitted that invoice; and
(b)That representation was false, because no process service fees were incurred on the file, although JC had incurred $80 in disbursements of another kind.
As to Mr Barry's state of mind we adopt, again, our reasons as to Representation 14 at paras [413] - [416] above.
That is, we find that Mr Barry was recklessly indifferent to the truth as to whether or not process service fees had actually been incurred. We are not satisfied to the relevant standard that he knew, when he made the representation, that no such fees had been incurred.
In doing so, we acknowledge that we have not accepted Mr Barry's admission made during the hearing.
That admission ought not to be accepted because it was made more than four years after the invoice was submitted and where it was plain that Mr Barry could not remember the actual details of any particular invoice.
In this case, Mr Barry appears to have focussed on the unusually fulsome 'report' as an indication of what he was trying to achieve at the time. In doing so, he was trying to make sense of what might have happened based on the contemporaneous documents, just as we are.
In those circumstances, we find that the admission is not factually justified.[331]
[331] Comcare v Fiedler [2001] FCA 1810; 115 FCR 328 [40]; Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 59 [32].
As to the Audit Sheet that Mr Barry submitted to LAWA on approximately 8 June 2021, there is no entry identifying any process service fees.[332] There is, however, an entry identifying that $125 was spent in conduct money. That appears to be correct.
[332] Exhibit 1, page 421.
Mr Barry did, also, tick the box 'confirming' that all relevant documents had been attached to substantiate all claims made. Given the claim made for process service fees, that was false. However, given the inclusion of the conduct money, we are satisfised that that occurred through a careless failure to recognise that the $80 claimed for disbursements represented a claim for $55 in process service fees, rather than an intentional falsehood or reckless indifference to the truth.
As we have previously explained, the fact that we are not satisfied that the Audit Sheet contained the representation claimed does not prevent a finding that the representation was made, given our finding that the representation was contained in the relevant invoice.
As we have previously found, reckless indifference to the accuracy of invoices is conduct which amounts to a serious breach of a practitoner's professional duty. In our view, it is conduct that falls substantially short of the standard of competence and diligence that a member of the public is reasonably entitled to expect of a legal practitioner and, therefore, amounts to professional misconduct.[333]
[333] Giudice at [8]. Legal Services and Complaints Committee and McCardle [No 2] [2023] WASAT 131 [413].
We are also satisfied that the conduct engaged in by making this representation was:
(a)contrary to the duty of honest in r 6(1)(b) of the Conduct Rules;
(b)likely to a material degree to be prejudicial to, or diminish the public confidence in, the administration of justice or bring the profession into disrepute, contrary to r 6(2) of the Conduct Rules; and
(c)contrary to his obligations to LAWA under the PSA, GCP and PPM.

Representation 19: LO matter (solicitor fees)

This representation relates to the same invoice as Representation 18 - Invoice 193997. [334]
[334] Exhibit 1, page 440.
The Board alleges that in that invoice, which was certified and submitted by Mr Barry on 26 February 2020, and in an Audit Sheet, he claimed that he was entitled to $1,820 in solicitor fees when he was only entitled to $1,400.[335]
[335] Annexure A, para 28(19).
The LAWA grant of aid made on 11 December 2019 approved a lump sum fee of 'up to $700' for preparation and a fee payable for court attendances of up to $840, being a maximum of six hours at $140 per hour.[336] The grant further stated that if an urgent application was required to be made, an additional all-inclusive fee of $280 was allowed. Therefore, the total amount for preparation and court attendance approved in the grant was $1,820.
[336] Exhibit 1, page 438.
The firm's time recording system shows two hours of court appearance time on 6 January 2020. No time was recorded for 7 or 9 January 2020.[337]
[337] Exhibit 1, page 423.
In contrast, the handwritten Audit Sheet prepared by Mr Barry records three court appearances prior to the date of issue of Invoice 193997 (26 February 2020), being two hours on 6 January 2020, one hour on 9 January 2020 and 'nil' hours on 7 January 2020.[338]
[338] Exhibit 1, page 421.
When asked about this at the hearing, Mr Barry stated that 'the time management system doesn't reflect some of the hearings'.[339]
[339] ts 161, 26 July 2024.
The 'report' provided at the end of Invoice 193997, discussed above in relation to Representation 18, supports the view that there were three court appearances, notwithstanding the absence of anything to that effect on the JC time recording system. It refers to three hearings, one on each of 6, 7 and 9 January 2020.
We are satisfied that those two additional hearings did occur, and Mr Barry appeared at them, albeit briefly. That is because in the LAWA letter of 17 December 2021 the author refers to transcripts of those hearings provided to LAWA by Mr Barry, which showed that he appeared for six minutes on 7 January 2020 and 22 minutes on 9 January 2020.[340]
[340] Exhibit 1, page 741.
On that basis, we are satisfied and we find that Mr Barry made the representation alleged - that he was entitled to claim $1,820 in solicitor fees - by submitting (and certifying) Invoice 193997.
We are also satisfied that the invoice was false - Mr Barry was entitled to claim no more than three hours of attendance - two hours for 6 January 2020 and (an absolute maximum) of ½ hour each for 7 and 9 January 2020.
Even allowing for an additional $280 to be claimed in relation to the 7 January 2020 hearing as an 'urgent application' (for which the 'report' provides some support), the claim still exceeds what was permissible by $140.
We turn, then, to Mr Barry's state of mind when preparing and/or submitting the invoice.
In his Response, Mr Barry disagreed that he overcharged. Rather, he took the same approach as for Representation 18; he stated that his 'report in the invoice is clear as to what I was claiming for'.[341]
[341] Response, para 4(19).
That approach is consistent with his 9 January 2023 letter, which stated that in his report in the invoice he set out the basis for the amount claimed for the additional work. It stated that, 'in effect he was asking LAWA to approve the additional preparation'.[342]
[342] Exhibit 1, page 845.
His written submissions prior to the hearing were to the same effect.[343]
[343] Respondent's Submissions, paras 101 - 102.
Mr Barry's evidence at the hearing was also consistent with that approach. He agreed that he had used the court attendance part of the grant to cover his preparation, and that he knew moving amounts from court attendance to preparation was inconsistent with the grant of legal aid and with LAWA policies and manuals on grants of aid. He also agreed that he had rationalised, in his own mind, that he deserved the total amount of the grant partly because of the work done on the file, but he stated that the:
main reason [for him so claiming] was to save on the additional paperwork without doing a separate extension on both sides. I thought, wrongly, that this was a more efficient way to do things …
He also said he did not think there was anything 'underhanded' about what he had done.[344]
[344] ts 164, 26 July 2024.
He said that his intention was that the report would draw LAWA's attention to the fact that he had moved some time spent on 'court attendance' into 'preparation'. When it was put to him that the report did not state that he had done so, Mr Barry replied that '[i]t doesn't say so expressly, but I don't think they could come away with any other impression as assessors'.[345]
[345] ts 163, 26 July 2024.
We found at para [528] above, in relation to Representation 18, that the report does not 'suggest in any way that Mr Barry was claiming a sum to which he was not entitled under the grant but which was, in effect, earned as a result of the work done'. The same may be said in relation to Representation 19.
In his Closing Submissions on Liability, Mr Barry admits that the representation was made and that, when he made it, he was recklessly indifferent to the truth.[346]
[346] Respondent's Closing Submissions, para 5.
The Board relies upon his admission in the hearing that, when he prepared the invoice, he knew that it was false.[347]
[347] Board's Closing Submissions, Attachment 1, row 19, column 8.
We are satisfied that Mr Barry knew, when he submitted the invoice, that he was claiming more for attendances than he was entitled to and that he was doing so because he had spent more on preparation than the grant of aid allows.
We make that finding based on the report which Mr Barry relies upon.
In our view, the report demonstrates that Mr Barry was very familiar with the matter, its progress and the work done on it in early January 2020, when he prepared and submitted the invoice in late February 2020.
Accordingly, we are satisfied and we find that he knew that his appearances on 7 and 9 January 2020 were only very brief and that the total amount of court time fell substantially short of what was being claimed.
We are satisfied and we find that is so even if allowance is made for an (unclaimed) 'urgent application' fee of $280.
In short, we are satisfied that the report, and the invoice more broadly, demonstrates that, at the time he prepared it, Mr Barry claimed additional time for court attendances to 'make up' some of the additional time spent on preparation.
We therefore find that he was intentionally misleading in making the claim in the invoice.
As we have previously noted, the handwritten Audit Sheet records each of the three court appearances on 6, 7 and 9 January 2020. Specifically, it records that Mr Barry attended court for 2 hours on 6 January 2020, 1 hour on 9 January 2020 and 7 January 2020 for 'nil'.[348]
[348] Exhibit 1, page 421.
As we have previously found that his attendance on 9 January 2020 was for only 22 minutes it might be said that the Audit Sheet is false.
However, the alleged representation is that he claimed that he was entitled to claim $1,820 when that was not the case. In our view, the Audit Sheet does not make such a representation. Rather, it merely represents that Mr Barry attended court on the days indicated for the time stated.
However, and consistent with our previous approach in relation to similar representations, we find the allegation made out despite our finding as to the Audit Sheet, because of our findings as to the invoice; the representation was made in that invoice, it was false and Mr Barry knew it to be so when he made it.
As we previously found for Representation 1, a finding that a practitioner has made a deliberate misrepresentation amounts to professional misconduct. For the avoidance of doubt, we find that by making Representation 19, Mr Barry's conduct fell substantially short of the standard of competence and diligence that a member of the public is entitled to expect from a legal practitioner.
For completeness, we also find that the conduct in question was:
(a)contrary to the duty of honesty in r 6(1)(b) of the Conduct Rules;
(b)likely to a material degree to be prejudicial to, or diminish the public confidence in, the administration of justice or bring the profession into disrepute, contrary to r 6(2) of the Conduct Rules;
(c)conduct which demonstrates that the Practitioner is not a fit and proper person to practise law, contrary to r 6(2) of the Conduct Rules; and
(d)contrary to his obligations to LAWA under the PSA, GCP and PPM.

Conclusion as to Ground 1

The foregoing reasons include seventeen findings that Mr Barry engaged in conduct that amount to professional misconduct.
More particularly, we have found that all but two of the alleged representations were made and that Mr Barry:
(a)made six deliberately false or misleading representations;
(b)made nine representations that were false where he was recklessly indifferent to their truth; and
(c)with respect to representation 12, the statement in the invoice was made with reckless indifference to the truth and that in the Audit Sheet was deliberately false.
We are in no doubt that the totality of the conduct the subject of Ground 1 constitutes professional misconduct, being conduct that fell substantially short of the standard of competence and diligence that a member of the public is reasonably entitled to expect of a legal practitioner.

Ground 2: Representations to the Board

As we have outlined above, Mr Barry provided two statutory declarations to the Board. The First Statutory Declaration was dated 15 December 2022, and the Second Statutory Declaration was dated 9 January 2023. Each of them attached a letter from Ms A on Mr Barry's instructions.
The Board alleges that in the letter attached to his First Statutory Declaration, Mr Barry made two false or misleading statements to the Board. [349]
[349] Annexure A, paras 37 - 38.
The Board further alleges that Mr Barry knowingly misled the Board or, alternately, that he was recklessly indifferent to the truth of the statements and that, as a result, he was not open and frank with the Board. The Board submits that in doing so, Mr Barry acted contrary to the standards expected of a legal practitioner, in that his conduct breached several of the 'Conduct Rules'. [350]

First representation to the Board

[350] Annexure A, paras 41 - 42.

The Board alleges that, in respect of the RM matter, Mr Barry represented, in the letter to his First Statutory Declaration, that he attended hearings on 17 April 2020 and 5 May 2020 and that LAWA had acknowledged this.[351]
[351] Annexure A, para 38.
The letter to the First Statutory Declaration clearly states as much. It says, in relation to each date, that Mr Barry:[352]
did attend at the hearing on [date]. LAWA has acknowledged this and has noted that Mr Barry did not render any charges. This is referenced in the material provided by LAWA and referred to in Mr Barry's correspondence of 6 July 2023.
[352] Exhibit 1, page 831.
However, in his letter attached to his Second Statutory Declaration, Mr Barry referred to the above statement in relation to both 17 April 2020 and 5 May 2020 and described them as 'not correct'. He went on to say:[353]
Upon further consideration of the material, Mr Barry accepts that he did not attend these hearings, he was referring to a hearing on 18 March 2020, which LAWA accepted he attended in their final report dated 17 December 2021.
[353] Exhibit 1, page 840.
In his Response, Mr Barry explained:[354]
I accept that Representation 1 was false. This was an error, resulting from inadequate care on my part going through the response that my then barrister had prepared and reconciling it with the relevant parts of the 100-plus page bundle of material provided by the Board. I corrected the false representation as soon as I became aware of the error.
[354] Response, para 7(a); see also Mr Barry's witness statement in Exhibit 1, page 903, para 33.
In his written submissions ahead of the hearing, Mr Barry disagreed with the Board's characterisation of this conduct as 'a dishonest concealment of [Mr Barry's] ground 1 misconduct - designed to mislead the Board's investigation into the ground 1 misconduct', saying that the misrepresentation:[355]
[w]as a product of confusion and inadequate review of the relevant documents. It was corrected in the 9 January submissions, after Mr Barry had taken advantage of the Christmas break to go through the documents properly.
[355] Respondent's Submissions, paras 134 - 136.
Mr Barry's evidence at the hearing was consistent with these previous statements. He accepted without hesitation that he did not attend court on 17 April 2020 and 5 May 2020. With respect to the 17 April 2020 attendance, he explained that he was confused with another court attendance he had attended, for which he had to obtain the court transcript to confirm that he was there.[356]
[356] ts 174 - 176, 26 July 2024.
He described that he had got these court appearances 'badly muddled'. He said that his wife had given birth to a baby daughter two weeks prior to the time he had compiled the First Statutory Declaration, that he was in 'a weird place' and had had 'very little sleep'.[357] He described spending many hours with Ms A, going through source material to try to respond.[358]
[357] ts 175 - 176, 26 July 2024.
[358] ts 176 - 177, 26 July 2024.
The Board submits that Mr Barry intended to mislead it in his letter attached to the First Statutory Declaration. It submits that we can infer that from the fact that he knew he had misled LAWA about who had attended the hearing in relation to Representation 3.
We disagree. We have previously found that Mr Barry was deliberately false when he made Representation 3, but that representation was made in or about June 2021, whereas the First Statutory Declaration was made in December 2022. We are not satisfied that the same state of knowledge can be attributed to Mr Barry across that timeframe, particularly given the very considerable number of matters that were being addressed at the latter time.
We also agree with the submission of Mr Warnick SC that '[v]oluntary correction of inaccuracies is not an action that would be expected of someone seeking to mislead the Board'.[359] Mr Barry selfcorrected the incorrect statements contained in his First Statutory Declaration when he made his Second Statutory Declaration and he did so without that discrepancy being first brought to his attention by the Board. In our view, that is not the conduct of someone who intended to mislead.
[359] Respondent's Closing Submissions, para 23.
We are satisfied, and we find, that the representation in question was the result of carelessness, which is explicable by the circumstances of the time.
It is uncontroversial that practitioners must be scrupulously honest and very careful in what they say to the Board.

But not every mistake will be a deliberate one and, where mistakes are subsequently identified by a practitioner, they are obliged, by the same obligations of honesty and care, to advise the Board thereof.
In our view, allegations such as this run the risk of discouraging practitioners from subsequently correcting errors due to fear that doing so will lead to further prosecution by the Board.
We find, therefore, and despite being satisfied that Mr Barry was careless in making the statement in the letter to the First Statutory Declaration, that this allegation should be dismissed.

Second representation to the Board

The Board further alleges that two statements in Mr Barry's First Statutory Declaration, to the effect that any billing mistakes were not deliberate, were false or misleading. In particular, the Board alleges that the following statements were misleading and that Mr Barry either knew that was so, or was recklessly indifferent to the truth:[360]
He agrees that his billing practices require improvement but he does not agree that they were intentionally misleading or intended to gain any financial advantage that the file did not merit.
Mr Barry …[s]tates that the overcharging was not intentional but inadvertent with bills rendered sometimes in haste in the context of a busy practice carrying out work often with complex factual backgrounds, low cost and high administration …
[360] Annexure A, paras 38 and 41.
There can be no doubt that Mr Barry made those statements[361] and he does not suggest otherwise.
[361] Exhibit 1, pages 832 and 833.
The Board alleges that, in the letter attached to the Second Statutory Declaration, Mr Barry 'admitted that he made false and misleading statements to LAWA when completing the audit review sheets'.[362] It alleges that the admissions made in the letter to the Second Statutory Declaration demonstrates that he knowingly, or with reckless indifference to the truth, misled the Board by those statements in his First Statutory Declaration.[363]
[362] Annexure A, para 38.
[363] Annexure A, para 41.
We disagree. To repeat, the fact that he corrected his previous errors in his subsequent letter without those errors being pointed out to him by the Board is, in our view, evidence pointing to the opposite conclusion - that those statements in the letter to the First Statutory Declaration were not deliberate or reckless.
As we have previously noted, Mr Barry's First Statutory Declaration was prepared at a time when he had a two-week-old newborn baby, was sleep deprived, and where he was required to consider a very large amount of material provided by the Board.
It is also relevant that the letter attached to his First Statutory Declaration responded to the Board's concerns on a topic-by-topic basis. It was only in the Second Statutory Declaration, after the Board criticised that approach (but without identifying any particular errors) that he responded to each individual allegation.
That is not to condone the manner in which the First Statutory Declaration was handled - we agree with the Board that it was inadequate for the purpose. But that does not mean that we find that that course was taken in order to avoid or obfuscate, let alone deliberately mislead.
Rather, consistent with the evidence of his circumstances, we accept the statement in Mr Barry's written submissions that he did not take sufficient care to ensure the matters in his First Statutory Declaration were accurate.
In short, Mr Barry self-corrected his earlier representations in his First Statutory Declaration by making further representations that were against his interests in his Second Statutory Declaration. In our view, that conduct is inconsistent with the submission that, in his First Statutory Declaration, he sought to intentionally mislead the Board. If Mr Barry intended to mislead the Board, he would not have corrected the statements at all.
Again, and for the same reasons described above at paras [597] - [600], we find that this allegation should be dismissed.

Conclusion as to Ground 2

Notwithstanding the carelessness of each of the two representations alleged in Ground 2, we will not record a finding of unsatisfactory professional conduct. Rather, in our view Ground 2 should be dismissed.
To do otherwise would discourage the very honesty and candour which is required of practitioners when they become aware of the need to correct previous representations.

Conclusion

Mr Barry has engaged in conduct that constitutes professional misconduct.
We will hear from the parties regarding the orders that should be made to reflect our findings and in order to program the matter through for a hearing on penalty and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
FA
Associate to the Deputy President Judge Jackson
22 APRIL 2025