Legal Practice Board v Elek-Roser - [2024] WASC 405

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   FULL BENCH
CITATION:   LEGAL PRACTICE BOARD -v- ELEK-ROSER [2024] WASC 405
CORAM:   MCGRATH J
HILL J
LUNDBERG J

HEARD:   22 OCTOBER 2024
DELIVERED          :   30 OCTOBER 2024
FILE NO/S:   LPD 5 of 2024
BETWEEN:   LEGAL PRACTICE BOARD
Plaintiff
AND
DEAN OLIVER ELEK-ROSER
Defendant

Catchwords:

Legal Practitioners - Application to remove practitioner's name from the Supreme Court roll - Application made by the Legal Practice Board pursuant to the Legal Profession Uniform Law (WA) - Practitioner failed to comply with condition attached to his practising certificate - Practitioner repeatedly failed to respond to communications from the Board and the Committee - Practitioner misused client funds - Practitioner found by the State Administrative Tribunal, on agreed facts, to have engaged in professional misconduct - Practitioner continued to engage in legal work and hold himself out as a legal practitioner even though his practising certificate was suspended and later cancelled - Practitioner convicted of multiple breaches of the Legal Profession Act 2008 (WA) for unqualified legal practice - Whether practitioner a fit and proper person - Turns on own facts

Legislation:

Legal Profession Act 2008 (WA), s 11, s 12(2), s 13(1)
Legal Profession Uniform Law (WA), s 22(1)(b), s 23(1)(b)
Legal Profession Uniform Law Application Act 2022 (WA), s 20

Result:

Practitioner's name to be removed from the roll of Australian lawyers maintained by the Court, with no order as to costs

Category: B

Representation:

Counsel:

Plaintiff	:	E M Heenan SC & A L Spencer
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Legal Practice Board
Defendant	:	In Person

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

Bennett v Western Australia [2012] WASCA 70; (2012) 223 A Crim R 419
Hollington v F Hewthorn [1943] KB 587
Law Society of New South Wales v Green [2022] NSWCA 257
Legal Profession Complaints Committee v Bower [2019] WASC 281
Mickelberg v Director of Perth Mint [1986] WAR 365
The Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211
Victorian Legal Services Board v Gobbo [2020] VSC 692

Table of Contents

Introduction

Materials before the Court

Nature of the application

Relevant principles

Factual background

Practice history

BAS Condition

Failure to comply with the BAS Condition or respond to the Board

Mismanagement of funds

Proceedings for professional misconduct

First application to the Tribunal

Second application to the Tribunal

Suspension orders and subsequent conduct

Cancellation of the practitioner's practising certificate and subsequent conduct

Prosecutions for unqualified legal practice

Prosecution for the First Occasion of Unqualified Legal Practice

Prosecution for the Second Occasion of Unqualified Legal Practice

Prosecution for the Third and Fourth Occasions of Unqualified Legal Practice

Summary of factual findings

Disposition

Orders made

REASONS OF THE COURT:

Introduction

On 22 October 2024, the Court heard an application by the Legal Practice Board (the Board) by way of originating motion pursuant to s 23(1)(b) of the Legal Profession Uniform Law (WA) (the Uniform Law). The motion sought an order that the name of the defendant, Mr Dean Oliver Elek-Roser (who is also known as Mr Dean Oliver Roser) be removed from the roll of Australian lawyers maintained by this Court. We will refer to Mr Elek-Roser within these reasons as the practitioner.
The application for removal of the practitioner's name was grounded on several instances of alleged misconduct on his behalf, stretching between 2017 and 2022. This conduct has included failures to respond to, or comply with, requests and orders of the Board and the Legal Profession Complaints Committee (the LPCC), mismanagement of client funds and multiple occasions of engaging in legal practice when suspended from practice or after his practising certificate was cancelled, as well as representing to others he was so qualified. The practitioner's conduct has led to adverse findings against him of professional misconduct by the State Administrative Tribunal (Tribunal), and criminal convictions in the Magistrates Court for offences of unqualified legal practice contrary to the Legal Profession Act 2008 (WA) (LPA).[1]
[1] The LPA was in force in Western Australia until 1 July 2022, following which the Uniform Law came into operation. From that date, the LPCC was superseded by the Legal Services and Complaints Committee.
The Board also adduced material which disclosed the practitioner's numerous prior convictions for breaches of the Tax Administration Act 1953 (Cth) (Tax Administration Act), for failing to lodge tax returns as required pursuant to division 31 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act). Senior counsel for the Board clarified that the convictions under the Tax Administration Act were provided to the Court solely by way of background to certain of the findings of professional misconduct which were subsequently made. These convictions were not directly relied upon by the Board in support of the order sought. We approached the application on this basis.
No submissions were filed in opposition to the application on behalf of the practitioner and there was no appearance on behalf of the practitioner at the hearing on 22 October 2024. The Court was satisfied the practitioner had been personally served with the application, and he had been given adequate notice of the hearing date.[2]
[2]
Having heard from senior counsel for the Board, the Court was unanimously of the view at the conclusion of the hearing that the order sought should be made and that, having regard to the entirety of the practitioner's conduct, the practitioner was unfit to remain as an officer of this Court. We accordingly ordered that the name of the practitioner be removed from the roll of Australian lawyers maintained by this Court and that there be no order as to costs.
The Court provided brief reasons at the conclusion of the hearing and indicated that formal reasons for making the orders would be provided in due course. These are the Court's formal reasons.

Materials before the Court

The Board relied upon the affidavit of Francis Xavier Hall affirmed on 5 June 2024 in support of the application (Hall Affidavit). Mr Hall is an Acting Senior Investigator with the Board.
Within his affidavit, Mr Hall provided an overview of the practitioner's history as a lawyer in Western Australia and the background leading to his prosecution by the Board for the offences under the LPA, including the practitioner's convictions under the Tax Administration Act and the disciplinary proceedings before the Tribunal. The affidavit attached a number of documents, including the minutes of the meetings of the Board's Committees, the written communications from the Board and the LPCC to the practitioner, the relevant prosecution notices, the disciplinary orders made by the Tribunal, and the transcripts of proceedings in the Magistrates Court.
The Board also filed an outline of submissions dated 5 June 2024, which incorporated a summary of the disciplinary findings and criminal convictions relevant to this application.

Nature of the application

Sections 22 and 23 of the Uniform Law are found in pt 2.2 of the Uniform Law, which is headed 'Admission to the Australian legal profession'.
Pursuant to s 22(1) of the Uniform Law, the Supreme Court of Western Australia must maintain a roll of Australian lawyers for this jurisdiction, which is referred to as the Supreme Court roll, containing the names and other relevant particulars of persons admitted by the Court, whether conditionally or without conditions.
Section 23(1)(b) relevantly provides:
23Removal from Supreme Court roll
(1)The Supreme Court may order the removal of the name and other particulars of a person from the Supreme Court roll, on—
(a)its own motion; or
(b)the recommendation of the designated local regulatory authority; or
(c)the recommendation of the designated tribunal.
(emphasis added)
The Board is the 'designated local regulatory authority' for the purposes of pt 2.2 of the Uniform Law.[3] The Board has delegated its powers and duties under pt 2.2 to one of its committees, being the Admissions and Registrations Committee of the Board. That committee was established pursuant to s 53(2)(a) of the Legal Profession Uniform Law Application Act 2022 (WA).
[3] Legal Profession Uniform Law Application Act 2022 (WA), s 20.
On 6 September 2023, by delegated authority, the Admissions and Registrations Committee approved the commencement of this proceeding, and recommended the removal of the practitioner's name from the Supreme Court roll.[4]
[4] Hall Affidavit [14], Attachment FXH-5.
As noted by senior counsel for the Board in his written submissions, and emphasised at the hearing, this Court is not bound to accept the recommendation of the Board or the Committee, but rather must independently exercise the power under s 23(1)(b) on the evidence before it. The point was made by Forbes J in the Supreme Court of Victoria in Victorian Legal Services Board v Gobbo[5] that:
[5] The Court is not bound to accept the recommendation of the regulatory authority, but must independently exercise the power on the evidence before it. The Court must give the recommendation appropriate weight. The consent of the practitioner where it is appropriate, as here, is also relevant.
[6] The Court must be satisfied that at the time of hearing the practitioner is not a fit and proper person to be a legal practitioner and is likely to remain so for the indefinite future.
[5] Victorian Legal Services Board v Gobbo [2020] VSC 692 [5] - [6] (Forbes J).
Thus, even if the practitioner were to concede that the removal of his name from the Supreme Court roll should occur, this Court must still be satisfied that the removal of his or her name is an appropriate order to be made in the circumstances.[6]
[6] Legal Profession Complaints Committee v Bower [2019] WASC 281 [9] (Quinlan CJ, Kenneth Martin and Smith JJ); and Council of the Law Society of New South Wales v Green [2022] NSWCA 257 [88].
It is therefore necessary for the Court to undertake its own review of the factual material presented and make our own findings in this regard. In the present proceeding, we are assisted in the fact finding process by two matters in particular.
First, evidence of the practitioner's convictions for offences contrary to the LPA is admissible in this proceeding as prima facie evidence of the facts giving rise to the convictions. We refer in this regard to the observations of Martin CJ in Bennett v Western Australia,[7] and the earlier reasoning of the Full Court in Mickelberg v Director of Perth Mint.[8] That said, the weight to be given to the conviction as evidence of those facts is a matter for this Court, as explained by Kennedy J in Mickelberg v Director of Perth Mint.[9]
[7] Bennett v Western Australia [2012] WASCA 70; (2012) 223 A Crim R 419 [64] (Martin CJ).
[8]
[9] Mickelberg v Director of Perth Mint (383 – 385) (Kennedy J).
Second, the practitioner agreed with the facts which formed the basis of the Tribunal's findings of professional misconduct. Further, in the proceedings before the Tribunal, the practitioner admitted that proper cause existed for disciplinary action to be taken and agreed with the orders which were made.
In undertaking our review of the factual material, we will proceed on the basis that evidence of the practitioner's convictions for the offences is prima facie evidence of the facts giving rise to those convictions. We will also proceed on the basis that we may accept as established those facts to which the practitioner signalled his agreement during the course of the proceedings before the Tribunal.
Prior to undertaking that review, it is convenient to confirm the principles which guide the exercise of this jurisdiction.

Relevant principles

This Court set out the relevant principles in some detail in its decision in Legal Profession Complaints Committee v Bower.[10] Those principles are set out below, with citations and footnotes omitted:
(a) The court's jurisdiction with respect to the regulation of the legal profession is not to be exercised for the purpose of punishing the practitioner concerned, but for the protection of the public and the maintenance of the reputation and standards of the legal profession.
(b) Account must also be taken by the court of the effect which its order will have on the understanding, in the profession and amongst the public, of the standard of behaviour required of legal practitioners.
(c) Where the order sought is for the removal of a practitioner's name from the roll, the critical question for the court is whether the practitioner is shown not to be a fit and proper person to remain a legal practitioner. Such an order is reserved for very serious cases where the character and conduct of the practitioner is seen to be inconsistent with the privileges of further practice.
(d) Fitness to practise law requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges. Honesty, fairness and integrity are essential prerequisites to the right to practise law. The quality most likely to result in removal of a practitioner's name from the roll is conduct which undermines the trustworthiness of the practitioner or which suggests a lack of integrity, or that the practitioner cannot be trusted to deal fairly within the system in which he or she practises. The willingness to engage in dishonest behaviour is of central relevance to an assessment of a practitioner's fitness to practise.
(e) It is a matter of the utmost seriousness for a practitioner to intentionally mislead a court. The administration of justice and public confidence in the system depends upon the assumption and expectation that practitioners will conduct themselves before the court with honesty and candour.
(f) A practitioner's failure to understand the impropriety of his or her conduct may be a factor of great importance in determining whether their name should be permitted to stay on the roll.
[10] Legal Profession Complaints Committee v Bower [38] (Quinlan CJ, Kenneth Martin and Smith JJ).
These principles are consistent with the express objectives of the Uniform Law, as appears from s 3 of the legislation. The principal objectives of the statute are to promote the administration of justice and an efficient and effective Australian legal profession. This is to be achieved by, among other things, ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services (s 3(b)), and by enhancing the protection of clients of law practices and the protection of the public generally (s 3(c)).

Factual background

We have set out below the factual background to this matter, which is drawn from the affidavit material adduced by the Board. Where necessary, we have referred to the documentary material upon which we have relied.

Practice history

The practitioner was admitted as a lawyer in Western Australia on 2 March 2006. He held a practising certificate for the following periods:[11]
(a)from 2 March 2006 to 30 October 2019;
(b)from 12 December 2019 to 11 March 2021, and
(c)finally from 10 April 2021 to 10 June 2021.
[11] Hall Affidavit [17], Attachment FXH-7 (evidentiary certificate).
The practitioner's suspension from practice, which is explained below, explains the gaps in this chronology. The practitioner was suspended from practice between 31 October 2019 and 11 December 2019, and between 12 March 2021 and 9 April 2021. The practitioner's practising certificate was then cancelled with effect from 10 June 2021.
Whilst practising, the practitioner initially worked as an employed legal practitioner at two firms (Kyle & Company and then Western Legal Pty Ltd) and then later, from 1 July 2010, as a sole practitioner at Elek‑Roser Legal.[12]

BAS Condition

[12] Hall Affidavit [18].

On 14 September 2017, the Professional Affairs Committee of the Board resolved to impose a condition on the practitioner's practising certificate. The condition required that the practitioner provide the Board with written confirmation he had complied with the obligation to lodge his quarterly business activity statements.[13] We will refer to this as the BAS Condition.
[13] Hall Affidavit [25], Attachment FXH-15 (statement of agreed facts [4]).
The BAS Condition was imposed following the practitioner's convictions in the Magistrates Court, for offences contrary to the Tax Administration Act. Some brief explanation of those convictions is required, albeit solely by way of background.
On 19 May 2017, the practitioner was convicted in the Magistrates Court of 30 offences of failing to furnish returns to the Australian Taxation Office. At least 25 of those charges involved failures to furnish GST returns in the approved form for the practitioner's family trust, dating back to around 12 November 2010.[14]
[14] Hall Affidavit [20] and [24], Attachments FXH-11 (prosecution notice) and FXH-12 (notice of conviction).
The practitioner was ordered to pay a fine and costs in the sum of $27,321.64 in relation to these offences, and he was also ordered to lodge all outstanding tax returns and business activity statements the subject of those convictions.[15]
[15] Hall Affidavit [21], Attachment FXH-12 (notice of conviction).
Subsequently, on 8 December 2017, the practitioner was convicted of 30 offences of failing to comply with the order of the Magistrates Court to lodge the outstanding returns. The practitioner was ordered by the Court to pay a further fine of $54,000.[16]

Failure to comply with the BAS Condition or respond to the Board

[16] Hall Affidavit [24], Attachment FXH-14 (criminal record).

As noted above, the BAS Condition imposed by the Board required the practitioner to provide written notice to the Board of the lodgement of the quarterly business activity statements. The practitioner failed to provide that notice in respect of the business activity statements for the quarters which ended on 30 September 2018 and 31 December 2018.[17] He failed to do so despite being reminded in writing of his obligation in this regard by the Board.[18]
[17] Hall Affidavit [27], Attachment FXH-15 (Tribunal orders [1] and statement of agreed facts [5] and [14]).
[18] Hall Affidavit [27], Attachment FXH-15 (Tribunal orders [1] and statement of agreed facts [5], [12] and [14]).
During the 12 month period from November 2018 to November 2019 the Board issued numerous letters to the practitioner requesting confirmation from him of the lodgement of his quarterly business activity statements and an explanation of his delay in doing so.[19] We accept that the practitioner received the various items of correspondence from the Board. There was no written response from the practitioner to any of this correspondence until 8 November 2019.
[19] Hall Affidavit [27], Attachment FXH-15 (statement of agreed facts [6] - [33]).
The practitioner was also called by telephone,[20] and spoke to the Board on one occasion, being 11 March 2019.
[20] The practitioner was called on 6 March 2019 and 11 March 2019.
The practitioner's decision to ignore this correspondence is striking, when the content of the correspondence is reviewed. The Board made it abundantly clear in its communications that compliance with the requirements of the Board was of the utmost seriousness.
For example, in the letter sent on 18 April 2019 the Board expressly advised the practitioner that his conduct had been referred to the LPCC. Further, in the letter from the Board sent on 29 July 2019, the Board referred to the practitioner's application to renew his practising certificate and required that the practitioner provide evidence of the lodgement of the outstanding business activity statements, explain his failure to comply with the BAS Condition, and provide submissions as to why the Board should consider the practitioner to be a fit and proper person, considering his conduct.[21]
[21] Hall Affidavit [27], Attachment FXH-15 (statement of agreed facts [18]).

Significantly, on 23 August 2019, the LPCC sent a summons to the practitioner to produce the outstanding documents by 6 September 2019 and requested a response to its earlier letters.[22] The practitioner failed to comply with the summons.[23]
[22] Hall Affidavit [27], Attachment FXH-15 (statement of agreed facts [29]).
[23] Hall Affidavit [27], Attachment FXH-15 (statement of agreed facts [31]).
On 10 September 2019, the LPCC wrote to the practitioner advising that an investigation into his conduct would be determined at the September 2019 meeting, and gave him a final opportunity to make submissions before 20 September 2019.[24]
[24] Hall Affidavit [27], Attachment FXH-15 (statement of agreed facts [32]). We note that the LPCC was also considering the practitioner's failure to respond to the letters of 9 July 2019 and 7 August 2019, and the failure to comply with the summons.
On 3 October 2019, and in the absence of any response from the practitioner, the practitioner was informed that the LPCC had resolved to refer his conduct to the Tribunal.[25]
[25] Hall Affidavit [27], Attachment FXH-15 (statement of agreed facts [33]).
On 30 October 2019, the Board resolved to suspend the practitioner's practising certificate. The suspension was based on the practitioner's ongoing failure to comply with the BAS Condition and with the summons sent on 23 August 2019, and his failure to provide the Board with a full and accurate account of his conduct in relation to those failures, or any response at all.[26]
[26] Hall Affidavit [27], Attachment FXH-15 (statement of agreed facts [34]).
It was only following the suspension of the practitioner's practising certificate that the practitioner was moved to provide a response to the Board, which he did on 8 November 2019.[27] Quite belatedly, the practitioner provided the outstanding quarterly business activity statements to the Board but provided no sensible explanation for his failures.

Mismanagement of funds

[27] Hall Affidavit [27], Attachment FXH-15 (statement of agreed facts [34] - [35]).

In or around September 2018, the practitioner was engaged by a client, Mr B, who instructed the practitioner to prepare and file a divorce application on his behalf. Mr B paid the practitioner $450 in cash, on account of anticipated legal fees. The practitioner did not issue a receipt or otherwise make out a receipt record. The practitioner placed the cash under a tray in his desk.[28]
[28] Hall Affidavit [28], Attachment FXH-16 (Tribunal orders [1] and statement of agreed facts [3] - [5]).
As appears from the factual events outlined below, the practitioner failed to progress the client's instructions and took an inordinate amount of time to refund the client's funds. The practitioner only did so following a complaint to the LPCC, and the involvement of a senior legal officer of the committee.[29]
[29] Hall Affidavit [28], Attachment FXH-16 (Tribunal orders [1] and statement of agreed facts [6] - [28]).
On 2 October 2018, the practitioner requested that Mr B provide his wife's email address. Mr B replied by email the same day, providing both the email and residential addresses.
On 6 February 2019 and 23 February 2019, Mr B emailed the practitioner and asked him to provide an update on the progress of the divorce application. No response was provided by the practitioner to either email.
On 20 March 2019, Mr B attended the practitioner's office unannounced to request a progress update. The practitioner stated that he would lodge the client's application in the Family Court the following day and email Mr B to confirm. The practitioner neither lodged the application, nor contacted Mr B to advise further.
On 10 April 2019, Mr B emailed the practitioner referring to the above events and noting he had not heard from the practitioner. Mr B requested the practitioner contact him as soon as possible to inform him about the actions he had taken regarding Mr B's divorce application.
On 5 June 2019, Mr B emailed the practitioner and referred to his failures to respond and failure to provide any service in respect of the cash payment tendered by the client. Mr B requested that the practitioner return the cash along with his documents within 5 days. No response was provided by the practitioner.
On 25 September 2019, Mr B made a complaint to the LPCC regarding the practitioner's conduct. On 9 October 2019, a legal officer with the LPCC telephoned the practitioner and left a message asking the practitioner to respond. Again, no response was provided by the practitioner.
On 18 November 2019, a senior legal officer of the LPCC wrote to the practitioner advising him that the client was seeking a refund of the cash payment and the return of all documents relating to the matter. The practitioner responded on 22 November 2019, offering to return the cash and asking how best to return Mr B's documents.
On 2 January 2020, the senior legal officer provided Mr B's bank account details and his home address, to facilitate the practitioner returning the documents. Following this, the practitioner did not make payment, nor return the files, to Mr B until 28 February 2020.

Proceedings for professional misconduct

On the basis of the practitioner's conduct as outlined above, proceedings in the Tribunal were initiated on two occasions by the LPCC, pursuant to the powers in s 424(1)(c) and s 428(1) of the LPA to refer complaints to that body.

First application to the Tribunal

The first application was lodged by the LPCC on 24 January 2020, being proceedings VR 7/2020, which arose from the conduct of the practitioner in failing to comply with the BAS Condition and to respond to the Board and LPCC.[30]
[30] Hall Affidavit [25], Attachment FXH-15 (statement of agreed facts).
Within those proceedings, the practitioner and the LPCC agreed a series of facts which were produced to the Tribunal, and have also been provided to this Court. We refer to the Statement of Agreed Facts which appears at pages 95 to 99 of the Hall Affidavit. The factual matters agreed by the parties are the matters we have referred to at [33] to [42] above.
On the basis of the agreed facts, and on the admission of the practitioner that proper cause existed for disciplinary action to be taken against him, the Tribunal made final orders in VR 7/2020 on 6 August 2020. Those orders were, in substance, that the practitioner had engaged in professional misconduct within the meaning of s 403, s 404(a) and s 438 of the LPA during the following periods:
(a)between 5 November 2018 and 5 August 2019; and
(b)between 3 December 2018 and September 2019.
The Tribunal found that the Practitioner's conduct would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence and fell short, consistently and by a substantial degree, of the standard of professional conduct observed or approved by members of the legal profession of good repute and competence. We respectfully agree with that finding.

Second application to the Tribunal

On 23 July 2020, the LPCC lodged a second application with the Tribunal concerning the practitioner, being VR 64/2020.[31] The application was lodged pursuant to the powers in s 424(1)(c) and s 428(1) of the LPA. The application concerned the practitioner's inappropriate management of funds referred to at [43] to [52] above.
[31] Hall Affidavit [28], Attachment FXH-16 (statement of agreed facts).
Once again, the practitioner and the LPCC agreed a series of facts for the purposes of the proceedings, and the practitioner agreed that final orders should be made against him. We refer to the Statement of Agreed Facts which appears at pages 102 to 105 of the Hall Affidavit. The factual matters agreed by the parties are at [43] to [52] above.
On this basis, on 5 February 2021, the Tribunal made an order that the practitioner, between about September 2018 and about 20 February 2020, engaged in professional misconduct within the meaning of s 403 and s 438 of the LPA.
The Tribunal found that the Practitioner's conduct would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, and fell short, consistently and by a substantial degree, of the standard of professional conduct observed or approved by members of the legal profession of good repute and competence. Again, we respectfully agree with this finding.

Suspension orders and subsequent conduct

On 10 February 2021, with the agreement of the LPCC and the practitioner, the Tribunal made the following orders concerning the practitioner in respect of the conduct which had been the subject of the proceedings in VR 7/2020 and VR 64/2020:[32]
(a)the Tribunal reprimanded the practitioner pursuant to s 439(d) of the LPA;
(b)the Tribunal suspended the practitioner's practising certificate for 4 weeks pursuant to s 439(a) of the LPA, commencing 30 days from the date of the orders (Suspension Order). The period of the suspension was from and including 12 March 2021 through to 9 April 2021;
(c)the Tribunal imposed a condition, for a 2 year period, that the practitioner only practice as an employed solicitor in the employment of, and supervised by, a practitioner with a minimum of 10 years' experience approved in writing by the Board; and
(d)the practitioner was ordered to pay the costs of the LPCC in the sum of $3,500.
[32] Hall Affidavit [29], Attachment FXH-17.
During the period in which the practitioner's practising certificate was suspended, by reason of the Suspension Order, we find that he continued to engage in legal practice and also represented that he was entitled to engage in legal practice. The conduct in question is described below. As identified later in these reasons, the practitioner was subsequently prosecuted for this conduct in the Magistrates Court, and convicted of multiple offences of unqualified legal practice contrary to the LPA.
Before we outline that conduct, we should note that the materials adduced by the Board identified one particular occasion in which the Board concluded the practitioner had engaged in unqualified legal practice, which was not the subject of subsequent criminal proceedings. In particular, the evidence identifies conduct alleged to have been undertaken by the practitioner between 17 March 2021 and 31 March 2021, in which he allegedly engaged in the practice of family law.[33]
[33] Hall Affidavit [19], Attachment FXH-10 (at [6(a) and 6(b)] of the notice pursuant to s 56(4) of the LPA).
The conduct in question allegedly involved the practitioner attending a dispute resolution conference at Legal Aid on 17 March 2021 where the practitioner purported to represent a party in relation to a children's family law matter. The conference lasted for half a day. Following that conference, the practitioner allegedly communicated by email with the opposing practitioner (at Platinum Legal) for the purposes of negotiating a minute of consent orders, by emails sent on 19, 23 and 31 March 2021.
On 14 May 2021, the practitioner was issued with a notice pursuant to s 56(2) of the LPA, advising that the Board was proposing to cancel his practising certificate due to his conduct, including the above allegation. The Board invited the practitioner to make written representations addressing the Board's proposal by 28 May 2021. The practitioner did not respond and the Board subsequently cancelled his practising certificate as of 10 June 2021.[34]
[34] Hall Affidavit [19], Attachment FXH-9 (extract of Professional Affairs Committee meeting minutes from 10 June 2021).
As the facts which underlie this allegation were not agreed by the practitioner, nor was he convicted of an offence in this regard, we are not persuaded we can make a finding that the conduct occurred, for the purposes of the present application. We are mindful in this regard of the serious nature of the allegation and the need to ensure we base any such finding on cogent evidence.
The Board did not place this allegation at the forefront of its submissions and made only a passing reference to it within the attachment to those submissions.[35] In these circumstances, we do not make any finding in relation to this conduct nor rely upon it in assessing the Board's present application.
[35] Attachment to the Board's Submissions, [10].
We turn now to the conduct on the part of the practitioner which was the subject of subsequent criminal convictions.
First, between 18 and 22 March 2021, the practitioner met with a client (Ms J) to take instructions in relation to a property matter, concerning her former partner, Mr P.[36] On 22 March 2021, the practitioner wrote to Mr P on Ms J's behalf under the letterhead 'Elek‑Roser Legal, Barristers & Solicitors'. His correspondence indicated he acted for Ms J and requested written undertakings from Mr P and threatened to commence urgent Family Court proceedings including proceedings seeking injunctive relief. Subsequently, from 6 July 2021 through to 23 September 2021, the practitioner drafted consent orders and liaised with Ms J in relation to those orders, as well as with Mr P. We refer to this conduct collectively as the First Occasion of Unqualified Legal Practice, noting that some of this conduct occurred after the period of suspension had ceased but, as will be seen, it nonetheless occurred in a period in which the practitioner was not qualified to practice.
[36] Hall Affidavit [36], Attachment FXH-25 (statement of material facts).
Second, on 8 April 2021, the practitioner corresponded with a law firm (Baily Family Law) and represented that he was acting in a matter which involved a forthcoming dispute resolution conference in the Family Court.[37] We will refer to this as the Second Occasion of Unqualified Legal Practice.

Cancellation of the practitioner's practising certificate and subsequent conduct

[37] Hall Affidavit [19], Attachment FXH-10 (at [6(c)] of the notice pursuant to s 56(4) of the LPA).

On 9 June 2021, the Professional Affairs Committee of the Board resolved to cancel the practitioner's practising certificate pursuant to s 56(4) of the LPA, and to refuse to renew the practising certificate for the year ending 30 June 2021 pursuant to s 45(8) of the LPA.[38] These resolutions were grounded upon the Board's satisfaction that the practitioner had engaged in the practice of family law during the period of the Suspension Order, as described at [64] and [65] above.
[38] Hall Affidavit [19], Attachment FXH-9 (extract of Professional Affairs Committee meeting minutes from 10 June 2021).
On 10 June 2021, the Board informed the practitioner by letter of the decisions to cancel his practising certificate and to refuse to renew the practising certificate for the year ending 30 June 2021.[39]
[39] Hall Affidavit [19], Attachment FXH-10 (letter from Board to the Practitioner dated 10 June 2021).
Despite having had his practising certificate cancelled, the practitioner continued to engage in legal work and to represent that he was able to do so.
On 4 August 2021, the practitioner represented in a letter to a client that he was entitled to engage in legal practice. We refer to this as the Third Occasion of Unqualified Legal Practice. This involved the practitioner sending a demand letter to a business on behalf of an individual he purported to represent as a solicitor. His letter used the letterhead 'Elek-Roser Legal, Barristers & Solicitors' and he signed the letter 'Dean Roser, Solicitor'.
By the terms of the letter, the practitioner sought compensation from the business on behalf of his client, and informed the business that if the matter could not be resolved, his client would take legal action.[40]
[40] Hall Affidavit [33], Attachment FXH-22 (statement of material facts).
The next conduct took place between 15 December 2021 and 16 February 2022. We refer to this as the Fourth Occasion of Unqualified Legal Practice. The conduct involved the practitioner acting for a client in Family Court proceedings concerning, amongst other things, arrangements for a child. The practitioner gave advice to this client, and sent correspondence to another party's lawyers, as well as to the independent children's lawyer, on the client's behalf. The client, the opposing lawyer, the independent children's lawyer, and the Family Court of Western Australia were all unaware that the practitioner was not entitled to engage in legal practice at the time.
Allied to the above conduct, on or about 21 December 2021, the practitioner issued an invoice to his client in respect of the work undertaken in connection with the Family Court proceedings, in the sum of $4,405.50. The invoice was paid by this client. The invoice was issued by 'The Elek-Roser Family Trust trading as Elek-Roser Legal'. In issuing the invoice, the practitioner represented that he was entitled to engage in legal practice. We refer to the issuing of the invoice as the Fifth Occasion of Unqualified Legal Practice.

Prosecutions for unqualified legal practice

The practitioner has been prosecuted for his conduct which amounted to engaging in unqualified legal practice as described above.
The offences for which the practitioner was convicted were breaches of s 12(2) and s 13(1) of the LPA. Section 12(2) of the LPA provided, at the time of the offences:
12. Prohibition on engaging in legal practice when not entitled
(1)…
(2) A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner.
Penalty: a fine of $20 000.
Section 13(1) of the LPA provided as follows:
13. Prohibition on representing or advertising entitlement to engage in legal practice when not entitled
(1) A person must not represent or advertise that the person is entitled to engage in legal practice unless the person is an Australian legal practitioner.
Penalty: a fine of $20 000.
At the relevant time, the dual purposes of pt 3 of the LPA (which was headed 'Reservation of legal work and related matters'), were stated in s 11 of the legislation. The first purpose was to protect the public interest in the proper administration of justice by ensuring that legal work was carried out only by those who were properly qualified to do so. The second purpose was to protect consumers by ensuring that persons carrying out legal work were entitled to do so.

Prosecution for the First Occasion of Unqualified Legal Practice

In respect of the First Occasion of Unqualified Legal Practice, the practitioner was convicted of two breaches of s 12(2) of the LPA for engaging in legal practice between 18 March 2021 and 1 April 2021, and between 11 June 2021 and 23 September 2021.[41] This is the conduct concerning Ms J and Mr P. During those periods, the practitioner's practising certificate was either suspended or cancelled.
[41] Hall Affidavit [36], Attachment FXH-24 (prosecution notice).
The practitioner was also convicted of one breach of s 13(1) of the LPA for his related conduct on 22 March 2021 where he had represented to Mr P that he was entitled to engage in legal practice, whilst not being an Australian legal practitioner.[42] The practitioner's practising certificate was suspended at the time of the conduct.
[42] Hall Affidavit [36], Attachment FXH-24 (prosecution notice).
In respect of the First Occasion of Unqualified Legal Practice, the practitioner was convicted in his absence, on 29 April 2022, pursuant to the procedure in s 55 of the Criminal Procedure Act 2004 (WA) (CPA).[43] The practitioner was fined $17,500 and ordered to pay costs in the sum of $3,900.[44] This Court has been informed that the Board has not received payment of the costs order.[45]

Prosecution for the Second Occasion of Unqualified Legal Practice

[43] Which, in general terms, permits the Court to deal with a charge, notwithstanding the accused’s failure to appear, if the Court is satisfied the accused has been served with the prosecution notice. If the Court decides to hear and determine the charge in the accused's absence, the Court may take as proved any allegation in the prosecution notice containing the charge that was served on the accused, and the Court must take as proved any facts stated by the prosecutor: s 55(4)(b) and s 55(5)(c) CPA.

[44] Hall Affidavit [37], Attachment FXH-24 (prosecution notice) and Attachment FXH-26 (transcript of proceedings on 29 April 2022).

[45] Attachment to the Board's Submissions, [18].

In respect of the Second Occasion of Unqualified Legal Practice, the practitioner was convicted of one breach of s 13(1) of the LPA for representing in a letter to a business dated 4 August 2021 that he was entitled to engage in legal practice, when he was not an Australian legal practitioner.[46] The practitioner's practising certificate was cancelled at the time of the conduct. On 26 November 2021, the practitioner was convicted in his absence, pursuant to the procedure in s 55 of the CPA.
[46] Hall Affidavit [34], Attachment FXH-21 (prosecution notice).
At the sentencing hearing on 4 February 2022, the practitioner was fined the sum of $10,000 and ordered to pay costs in the sum of $3,000.[47] This Court has been informed that the Board has not received payment of the costs order.[48]

Prosecution for the Third and Fourth Occasions of Unqualified Legal Practice

[47] Hall Affidavit, Attachment FXH-21 (prosecution notice) and Attachment FXH-23 (transcript of proceedings on 4 February 2022).

[48] Hall Affidavit [35]; Attachment to the Board's Submissions [14].

In respect of the Third Occasion of Unqualified Legal Practice, the practitioner was convicted of six breaches of s 12(2) of the LPA for engaging in legal practice on various dates between 15 December 2021 and 16 February 2022 when he was not an Australian legal practitioner.[49] The practitioner's practising certificate was cancelled at the time of the conduct. On 3 March 2023, the practitioner was convicted in his absence, pursuant to the procedure in s 55 of the CPA.
[49] Hall Affidavit [39], Attachment FXH-27 (prosecution notice).
In respect of the Fourth Occasion of Unqualified Legal Practice, the practitioner was convicted of one breach of s 13(1) of the LPA for representing on about 21 December 2021 that he was entitled to engage in legal practice by invoicing a party to Family Court proceedings for whom he undertook work when he was not an Australian legal practitioner.[50] The practitioner's practising certificate was cancelled at the time of the conduct. On 3 March 2023, the practitioner was convicted in his absence, pursuant to the procedure in s 55 of the CPA.
[50] Hall Affidavit [39], Attachment FXH-27 (prosecution notice).
In respect of the Third and Fourth Occasions of Unqualified Legal Practice, the practitioner was fined the sum of $40,000 and ordered to pay costs in the sum of $3,475.29.[51] The sentence was imposed on 3 March 2023. This Court has been informed that the Board has not received payment of the costs order.[52]
[51] Hall Affidavit [40], Attachment FXH-27 (prosecution notice) and Attachment FXH-29 (transcript of proceedings on 3 March 2023).
[52] Attachment to the Board's Submissions, [22].

Summary of factual findings

It is convenient at this point to confirm the primary factual findings we have made on the basis of the matters set out above in these reasons. We reiterate that we are able to make these finding having regard to the practitioner's agreement to the statement of facts prepared by the Board and the LPCC in the course of the disciplinary proceedings, and on the basis of the convictions recorded against the practitioner for breaches of the LPA.
We find that the practitioner engaged in conduct which involved the mismanagement of client funds, albeit a relatively modest amount, and failed to properly progress his client's instructions. The practitioner dealt with the trust funds in a casual manner without regard to the mandatory requirements applicable to such funds.
The practitioner's conduct was compounded by his failure to respond to his client's enquiries regarding the funds and, later, his failure to respond to the enquiries made of the practitioner by the LPCC. No satisfactory explanation has been provided for these failures.
We find that the practitioner failed to comply with the BAS Condition imposed on his practising certificate by the Board. No satisfactory explanation has been provided for this failure.
We find that the practitioner failed to properly respond to several written communications from the Board, which had been sent to the practitioner over an extended period of time. The practitioner also failed to properly respond to a summons issued by the Board. No satisfactory explanation has been provided for these failures.
We find that, having been on notice that his practising certificate was suspended and he had no right to engage in legal practice, the practitioner nonetheless proceeded to engage in legal practice on behalf of clients and to represent to persons and to businesses that he was so entitled. He used his law firm's letterhead to communicate with his clients and with third parties. No satisfactory explanation has been provided for this conduct.
We find that, thereafter, being on notice that his practising certificate had been cancelled by the Board, the practitioner continued his course of conduct in purporting to act for clients as their legal representative and undertaking legal work on their behalf, as well as issuing an invoice for that work. The practitioner communicated with other lawyers in a manner in which they undoubtedly understood he was acting as a lawyer and in a legal capacity. No satisfactory explanation has been provided for this conduct.

Disposition

Having regard to the factual background outlined in these reasons, and the specific findings we have made, we were satisfied that the order sought by the Board pursuant to s 23(1)(b) of the Uniform Law should be made. That is, we were satisfied the Board had demonstrated the practitioner is not a fit and proper person to remain a legal practitioner. The aim of protecting the public and the objective of enhancing the reputation of the legal profession, would be seriously undermined by permitting the practitioner to continue to act as such.
Our reasons for reaching this conclusion may be briefly stated as follows.
First, it is clear that a practitioner has a duty to cooperate with the Board and with the LPCC (as it then was), and to facilitate their enquiries. A failure by a practitioner to cooperate with the Board and with the LPCC, and to facilitate their enquiries, will not necessarily justify a conclusion that the practitioner should be struck from the roll.[53] All of the relevant circumstances must be considered.[54]
[53] The Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 [24] (Wheeler and McLure JJA, and EM Heenan J).
[54] The Legal Practitioners Complaints Committee v Lashansky [25].
In this case, the practitioner's overall conduct is a particularly serious example of failing to co-operate with the regulator. That seriousness manifests itself in the persistent and frequent nature of the practitioner's failures to respond to communications from the Board and the LPCC, the lengthy period over which the conduct occurred, and the importance of the communications which included a formal summons requiring production.
We emphasise that when the particular conduct of the practitioner in the present matter is examined, it cannot be explained by mere inadvertence on the practitioner's behalf, or by oversight. Rather, we conclude that the practitioner repeatedly, over a lengthy period of time, deliberately ignored the communications he received from the regulatory authorities. The impugned conduct of the practitioner cannot be described as an isolated instance.
The practitioner's conduct in ignoring the communications from the Board and the LPCC, including the receipt of a lawful summons to produce documents, is of the utmost seriousness and is tantamount to obstruction of the Board's proper role. Conduct such as this severely hampers the regulatory authorities in the exercise of their functions, and greatly diminishes the public's confidence in the legal system and undermines the profession's ability to regulate those practitioners whose conduct has been below acceptable standards.
Second, in any event, the practitioner's conduct extends beyond a failure to cooperate with the regulatory agencies. The findings of fact we have made as to the conduct of the practitioner present a clear picture of a practitioner who repeatedly, and over a relatively lengthy period, acted in deliberate defiance of the decisions and orders of the Board, the LPCC, and the Tribunal, and continued to engage in legal practice knowing he was not so entitled.
Third, the conduct of the practitioner in this case demonstrates that he has acted in a dishonest manner. That dishonesty is, in essence, found in his conduct in falsely representing to his clients, opposing parties, other lawyers, as well as to the Family Court, that he held an entitlement to practice. He knew he held no such entitlement. The practitioner deliberately deployed his letterhead on his correspondence to issue strongly worded threats to opposing parties and opposing lawyers in relation to disputes, when he well knew he was not entitled to act as a legal practitioner.
When sentencing the practitioner for the conduct which occurred in August 2021, the presiding Magistrate described the practitioner's conduct, which involved the use of his legal letterhead and a reference to himself as a solicitor, as a 'brazen' representation he was entitled to engage in legal practice.[55] With respect, we agree with his Honour's characterisation of this conduct.
[55] Hall Affidavit [34], Attachment FXH-23 (transcript of proceedings on 4 February 2022, ts 22).
Fourth, the practitioner's conduct in engaging in unqualified legal practice extended over a lengthy period of time. It cannot be doubted that the practitioner was aware that his practising certificate was suspended by the Tribunal on and from 12 March 2021, and yet he continued to engage in the provision of legal services later in March and then in April 2021. Having then been informed his practising certificate was cancelled by the Board on and from 10 June 2021, the practitioner continued to engage in the provision of legal services, and to represent to members of the public that he was a qualified legal practitioner. He did so in August 2021, in September 2021, and then between December 2021 and February 2022.
Fifth, the seriousness of the practitioner's conduct in engaging in unqualified legal practice, and representing to persons and to businesses that he was able to do so, is reflected in the fact he was convicted of offences under s 12(2) and s 13(1) of the LPA. As a result of the practitioner's conduct he was convicted of eight (8) offences pursuant to s 12(2) of the LPA and three (3) offences pursuant to s 13(1) of the LPA. A review of the several transcripts of the criminal proceedings in the Magistrates Court provides no indication as to whether the practitioner gained any insight into the wrongfulness and gravity of his conduct.
As we have noted, the objects of the legislation at the time made clear that the legislative purpose of these provisions was to ensure legal work was carried out only by those who are properly qualified to do so, and that consumers are properly protected. These purposes are likely to be undermined by legal practitioners who have been, for sound reasons, precluded from practising and yet who nonetheless represent to members of the public that they are so entitled. The administration of justice in general is diminished by this conduct.
Sixth, it is relevant to our assessment that some of the matters in respect of which the practitioner chose to act as a solicitor, when he was not qualified to do so, involved disputes of a significant nature, concerning family law matters and the interests of children. To take instructions in such matters knowing full well he was not entitled to do so aggravates the seriousness of this conduct.
Seventh, the practitioner's suspension from legal practice, and the resulting cancellation of his practising certificate, followed two findings of professional misconduct made by the Tribunal. The conduct which underpinned the findings of professional misconduct was self-evidently serious, involving, among other things, a misuse of funds held by the practitioner, a lengthy failure to progress a client's instructions, and a failure to comply with the BAS Condition imposed by the Board.
Eighth, we observe that the practitioner has made no submissions to this Court in opposition to the orders sought by the Board, or to explain or mitigate his conduct in any way. We do not have any material before us which demonstrates the practitioner's remorse or contrition, nor, most importantly, any indication he has acquired insight into the seriousness of the impugned conduct.
The practitioner's conduct, when viewed in totality, has demonstrated, in our view, that his continuation as a practitioner would seriously undermine the public's confidence in the profession and that his character and conduct is inconsistent with the privilege of being entitled to so practice. The practitioner has defied the orders of the regulator on numerous occasions. We find that the practitioner does not properly understand his obligations as a practitioner and his duties to the Court.
As to the issue of costs, in our view, given the practitioner did not oppose the orders, it was appropriate to regard the costs of the proceedings as part of the costs of regulating the profession. We accordingly made no order as to costs.

Orders made

For these reasons, on 22 October 2024, this Court made the following orders:
1.Pursuant to s 23(1)(b) of the Uniform Law, the practitioner's name be removed from the roll of Australian lawyers maintained by this Honourable Court.
2.There be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LM
Associate to the Honourable Justice Lundberg
30 OCTOBER 2024

As appears from the affidavit of Francis Xavier Hall affirmed on 5 June 2024 [6] - [10], the affidavit of service of Graeme Robert Coates sworn 22 July 2024 [1], and the affidavit of Francis Xavier Hall affirmed on
20 August 2024 [4] - [5].

Mickelberg v Director of Perth Mint [1986] WAR 365, 371 (Burt CJ), 374 (Smith J), and 381 – 382
(Kennedy J), in which the Full Court declined to follow the decision of the English Court of Appeal in Hollington v F Hewthorn [1943] KB 587.