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 (

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] WASAT 34
Decision Date: 22 APRIL 2025

CaseChat Overview and Summary

The Legal Practice Board has brought proceedings against Barry in the Supreme Court of Western Australia. The Board alleges that Barry has engaged in professional misconduct in relation to making 19 false or misleading representations to Legal Aid Western Australia and making false or misleading statements to the Board. The Board further alleges that by reason of either or both of these grounds, Barry's conduct constitutes professional misconduct. Barry disputes the allegations and the Board's finding of professional misconduct. The court had to decide whether Barry made the representations alleged and, if so, whether he intended to make the false representation, was recklessly indifferent to the truth of the representation or was careless. The court also had to decide whether Barry's conduct amounted to professional misconduct or unsatisfactory professional conduct.

The court found that Barry did make the representations alleged by the Board and that some of those representations were false. The court found that Barry's conduct amounted to professional misconduct in relation to some of the representations made to Legal Aid Western Australia and some of the representations made to the Board. The court found that Barry's conduct amounted to unsatisfactory professional conduct in relation to some of the representations made to Legal Aid Western Australia. The court found that Barry's conduct did not amount to professional misconduct in relation to the representations made to the Board. The court found that Barry did not intend to make the false representations, was not recklessly indifferent to the truth of the representations and was not careless. The court found that Barry's conduct did not amount to professional misconduct or unsatisfactory professional conduct.

The court made an order that Barry's name be removed from the roll of legal practitioners and that he be disqualified from being admitted as a legal practitioner for a period of two years. The court also made an order that Barry pay the Board's costs of the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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. 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. 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.