Legal PRACTITONERS Complaints Committee and Bachmann
[2009] WASAT 120
•23 JUNE 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: LEGAL PRACTICE ACT 2003 (WA)
CITATION: LEGAL PRACTITONERS COMPLAINTS COMMITTEE and BACHMANN [2009] WASAT 120
MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
MR C EDMONDS SC (SENIOR SESSIONAL MEMBER)
MR M ANDERSON (SENIOR SESSIONAL MEMBER)
HEARD: 21 MAY 2008
23 MAY 2008
26 - 28 MAY 2008
23 JULY 2008
27 OCTOBER 2008
3 - 7 NOVEMBER 2008
12 NOVEMBER 2008
18 DECEMBER 2008
DELIVERED : 23 JUNE 2009
FILE NO/S: VR 34 of 2007
VR 53 of 2007
BETWEEN: LEGAL PRACTITONERS COMPLAINTS COMMITTEE
Applicant
AND
TRICIA Y BACHMANN
Respondent
Catchwords:
Legal practitioners Disciplinary proceedings Unsatisfactory conduct Unprofessional conduct Statements made to clients about progress of work Whether knowingly false Charging for work not undertaken or completed Misrepresentations as to progress of work allegedly completed Whether dishonest Practising while under suspension
Legislation:
Interpretation Act 1984 (WA), s 19(1)(b)(ii), s 19(2)(e), s 37(1)(d), s 37(1)(f)
Legal Practice Act 2003 (WA), s 137, s 180(1), s 185, s 185(1), s 187, s 203, Pt 12, Pt 13
Legal Profession Bill 2007 (WA), cl 621, cl 622
Liquor Control Act 1988 (WA), s 68(1)(b)(i)
Liquor Control Regulations 1989 (WA), reg 26(3)
State Administrative Tribunal Act, s 87(2)
Trade Practices Act 1974 (Cth), s 52
Result:
Practitioner guilty of unsatisfactory conduct
Category: A
Representation:
Counsel:
Applicant: Ms P Cahill and Ms P Le Miere
Respondent: Self-represented
Solicitors:
Applicant: Legal Practitioners Complaints Committee
Respondent: Self-represented
Case(s) referred to in decision(s):
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Kyle v Legal Practitioners' Complaints Committee (1999) 21 WAR 56
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Headings: | Page: |
Summary of Tribunal's decision | 5 |
The reference to SAT | 6 |
| The LPCC's applications and the practitioner's defences | 6 |
VR 53 of 2007 – the G matter | 6 |
| VR 34 of 2007 – the eight clients matter | 8 |
The principal issue | 10 |
Course of proceedings | 11 |
The initial hearing | 12 |
23 July 2008 directions hearing | 14 |
The adjourned hearing | 16 |
| The practitioner's employment with Aragon | 21 |
The practitioner's credibility | 23 |
VR 53 of 2007 – the G matter | 25 |
Statement of facts | 25 |
The representations | 30 |
The evidence | 31 |
Mr and Mrs Gs' instructions | 31 |
The practitioner's work and invoices | 34 |
The witnesses | 35 |
Findings | 37 |
The work undertaken | 37 |
| The caveats | 47 |
| The fraudulent misrepresentations | 49 |
| Unprofessional conduct | 50 |
| VR 34 of 2007 – the eight clients matter | 51 |
| The M matter | 52 |
| The HGW matter | 56 |
| The F matter | 58 |
| The UT matter | 60 |
| The B matter | 62 |
| The FGC matter | 64 |
| The H matter | 67 |
| The A matter | 70 |
| Unprofessional conduct | 75 |
| Conclusion | 76 |
| Orders | 76 |
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Legal Practitioners Complaints Committee brought charges of unprofessional conduct against a legal practitioner, Ms T.Y. Bachmann. In substance, the allegations concerned the practitioner making knowingly false representations to nine clients about work undertaken by the practitioner and the progress of their matters. With respect to several clients, there were also allegations that the practitioner, on behalf of her employer, charged for work she did not undertake. These charges were of the most serious nature. The Committee's proof of them involved allegations that the practitioner created false records to support her claims of work undertaken.
The practitioner's position in essence was that she had completed or substantially completed the work in the manner she represented. To the extent the work was not undertaken, this was largely due to the conduct of others and her dismissal by her employer. The practitioner maintained she was entitled to bill in the manner she did for the work performed. She accused several of the clients who gave evidence of dishonesty and confusion.
For the most part, the practitioner represented herself and did so in a most unsatisfactory manner. The Tribunal was continuously required to depart from its usual procedures to ensure the practitioner was given a proper opportunity to present her case and to defend the charges.
The Tribunal held that the charges had been proved to the requisite standard. The Committee through its witnesses and documentary evidence established a strong prima facie case. For the most part there was no dispute that the representations had been made. The issue was whether they were knowingly false. The practitioner's evidence on the whole was, in varying respects, patently false, incredible, inconsistent and confusing. The Tribunal preferred the evidence of the Committee's witnesses to the testimony of the practitioner. The practitioner's documents did not withstand scrutiny and the Tribunal found that several critical documents had been falsely created to support the practitioner's claims as to work undertaken. The practitioner's conduct may have been affected by her mental condition but there was insufficient medical evidence to establish this. The Tribunal was of the view that it was not possible or appropriate for it to make the relevant finding without that evidence.
The Tribunal found the practitioner guilty of unprofessional conduct. The Tribunal sought submissions on penalty and costs.
The reference to SAT
Pursuant to the provisions of Pt 12 of the Legal Practice Act 2003 (WA) (LP Act), the Legal Practitioners Complaints Committee (LPCC) instituted professional disciplinary proceedings before this Tribunal against Ms T.Y. Bachmann, the respondent legal practitioner (the practitioner). These proceedings were instituted by the LPCC's application filed on 28 February 2007, being VR 34 of 2007 (the eight clients matter), and an application filed on 5 April 2007, being VR 53 of 2007 (the G matter). In each case, the LPCC seeks:
1)an order that the practitioner is guilty of unsatisfactory conduct pursuant to s 185(1) of the LP Act;
2)consequential orders pursuant to s 185 and s 187 of the LP Act; and
3)an order that the practitioner pay the LPCC's costs pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The LPCC's applications and the practitioner's defences
VR 53 of 2007 - the G matter
VR 53 of 2007 is the more serious of the two applications and it is convenient to deal with it first.
The grounds of the application (amended on 22 May 2008) in the G matter are that the practitioner is guilty of unsatisfactory conduct by:
1)unprofessional conduct; and
2)conduct occurring in connection with legal practice that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.
In outline, the LPCC's case is as follows:
1)between about 8 August 2005 and 19 September 2005, the practitioner acted for Mr and Mrs G in relation to a claim against the vendor of a property that Mr and Mrs G purchased in Morley (the Morley property);
2)in the course of the retainer the practitioner claimed to have undertaken considerable work and claimed fees of about $23,000;
3)Mr and Mrs G terminated the retainer on or about 19 September 2005. Immediately following this, the practitioner arranged to lodge caveats against the Morley property and a property that Mr and Mrs G were selling (the Viveash property) on the basis that Aragon Legal Pty Ltd (Aragon), the practitioner's employer, had a claim to the proceeds of the sale of the Morley property and the Viveash property in respect of its fees; and
4)the essence of the complaint is that the practitioner made a number of knowingly false statements concerning the work the practitioner claimed to have undertaken, Aragon’s right to lodge a caveat and some incidental matters.
In outline, the practitioner’s defence by her response filed with the Tribunal on 11 June 2007 is that:
1)the LPCC has failed to prove the facts of its complaint;
2)the practitioner completed the work for which she rendered invoices but the work product in both hard copy and electronic form was lost by Aragon (or some other person or entity). The practitioner says she has not had access to the offices of Aragon since the time her employment was terminated on 4 May 2006 so as to be able to search for the documents;
3)Mr and Mrs G offered the properties as security for Aragon's costs and she was entitled on Aragon's behalf to caveat the properties; and
4)the representations she made were not false and in any event were not knowingly false or recklessly made.
VR 34 of 2007 - the eight clients matter
The grounds of the application (amended on 22 May 2008) in the eight clients matter are that the practitioner is guilty of unsatisfactory conduct by:
1)unprofessional conduct;
2)conduct occurring in connection with legal practice that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner;
3)neglect, or undue delay, in the course of practice; and
4)a contravention of s 137 of the LP Act.
In outline, the LPCC's case is as follows:
1)there are eight separate matters. Five concern applications for liquor licenses for clients (Mr M, HGW, Mr F, UT and Mr B). Three relate to general work not involving liquor licensing, for other clients (FGC, Mr and Mrs H and Mr A);
2)in each matter the practitioner made knowingly false representations as to the nature of work said to have been carried out. In several cases there are also claims that the practitioner invoiced for work she did not undertake; and
3)in the matter for Mr A, the LPCC also claims that the practitioner:
a)continued to practice whilst under suspension; and
b)failed to deposit funds into her trust account.
In summary, the practitioner's defence, as based on her response filed with the Tribunal on 19 April 2007, is that:
1)in relation to the liquor licensing matters generally:
a)when processing applications, the Office of Racing Gaming and Liquor (ORGL) treated differently applications lodged for checking and applications lodged for processing. The practitioner did not appreciate this distinction during the period she first made licensing applications;
b)ORGL only provided written confirmation of receipt for those applications that were lodged by post and not for those applications that were lodged in person; and
c)due to circumstances not attributable to the practitioner, and often involving the administration of ORGL, the practitioner did not carry out instructions in the various matters 'to completion'.
2)the M matter: the practitioner did all things necessary, accurately and in a timely manner. Many of the difficulties arose from ORGL's procedures;
3)the HGW matter: the practitioner, in effect, completed all tasks necessary for the licence to be lodged, but was unable to complete the matter because of her dismissal;
4)the F matter: the practitioner, in effect, processed the application as instructed but was unable to complete the matter because of her dismissal;
5)the UT matter: the practitioner, in effect, processed the application as instructed but was unable to complete the matter because of her dismissal;
6)the B matter: the practitioner, in effect, processed the application as instructed but was unable to complete the matter because of her dismissal;
7)the FGC matter: the practitioner, in effect, did undertake the work required of her but on behalf of a Mr C and not FGC. The charge was made for the work for Mr C, but Aragon incorrectly sent a copy of the invoice to the FGC. The practitioner was not able to obtain evidence from Mr C;
8)the H matter: the practitioner, in effect, did undertake the work required but Aragon incorrectly invoiced the matter to the wrong client. The practitioner was again not able to obtain corroborating evidence from this client; and
9)the A matter: the practitioner, in effect, undertook the work for which she invoiced the client and she made no misrepresentations. The practitioner did not undertake any work on this matter in the period of her suspension.
The principal issue
It will be apparent from this summary that the principal issue in these proceedings is whether, as the practitioner claims, she did in fact undertake the work for which she (through Aragon) charged the clients and in respect of which she made representations as to the progress of the work undertaken.
The allegations against the practitioner are extremely serious. In relation to the G matter, the LPCC alleges that the practitioner lied about the work she claimed she had undertaken comprising pleadings, witness statements, research and submissions (collectively, the court documents work) and for which on behalf of Aragon she subsequently invoiced the clients and then instituted recovery proceedings. In relation to many of the other matters, the LPCC alleges that the practitioner deliberately misrepresented to her clients the work she said she had undertaken.
The practitioner produced a number of written records relating to these matters, particularly in relation to the G matter, which, on the LPCC's case, are false records. The practitioner maintained throughout the proceedings before us that in fact she did undertake this work and that she has made no misrepresentations as to the work she undertook.
It is apparent in these circumstances that whilst the relevant standard of proof is the civil standard, that is, proof on the balance of probabilities, the circumstances require proof in accordance with the decision in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) read with Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd(1992) 67 ALJR 170. In accordance with the Briginshaw principles, we require reasonably clear evidence in order to be actually persuaded on the balance of probabilities that the facts on which the charges are brought have been established. This is because of the serious nature of the charges brought against the practitioner generally and the grave consequences for her if made out.
In the context of the LPCC's reliance on circumstantial evidence, its counsel, Ms Cahill, drew our attention to the decision in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1. The following passage (without the authorities) appears at 5:
The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise.
Where the fact in issue is integral to the charge brought against the practitioner so that the Briginshaw standard applies, the Tribunal will need to be reasonably satisfied, having regard to the seriousness of the matter, that the relevant inference may properly be drawn. In the circumstances of these proceedings, the resolution of the issues in the applications depends in large part on our assessment of the credibility of the practitioner.
Course of proceedings
These proceedings have a long and tortuous history before this Tribunal. For reasons we subsequently explain, it is necessary to make reference to this. On 14 July 2006, in earlier proceedings (VR 116 of 2006 and VR 120 of 2006), the Tribunal ordered the practitioner to obtain a psychiatric report and, with her consent, suspended her from practice pending inquiry and determination of the matters raised by the LPCC. The suspension was confirmed and continued on 26 September 2006. The LPCC filed and served its application for the eight clients matter on 28 February 2007 and its application for the G matter on 5 April 2007.
There followed a number of directions hearings, mediations, and compulsory conferences and various programming orders were made by the Tribunal (20 March 2007, 24 April 2007, 12 June 2007, 11 July 2007, 24 August 2007 and 20 November 2007). Amongst the various orders made at those hearings were orders that the practitioner file her response to the applications, that the parties file various documents and that the practitioner clarify the documents that she had earlier filed.
The practitioner filed only incomplete responses to the LPCC applications.
As at 8 January 2008, the practitioner had failed to file documents as ordered and she was again ordered on that date to file the various documents. The practitioner did not comply with those orders. On 6 February 2008, a compulsory conference was held but the practitioner failed to attend. She faxed a doctor's certificate to the Tribunal. On 12 February 2008, there was a directions hearing and the parties were ordered to file witness statements. The matters were listed for hearing from 6 - 9 May 2008 and 12 ‑ 14 May 2008. On 25 March 2008, the practitioner was granted an extension of time for compliance with the orders and the final hearing was relisted for 21 - 29 May 2008. On 9 April 2008, the practitioner was again granted an extension for compliance with the orders. Programming orders were again made but the practitioner failed to comply.
At a directions hearing before Deputy President Judge Eckert on 13 May 2008, the practitioner advised that she had sent witness statements to all of her witnesses. She initially confirmed this at the hearing on 21 May 2008 although later on that day she advised she had sent only some of the statements (see below).
The initial hearing
On 21 May 2008, the first day of the hearing, the practitioner failed to attend and applied by telephone for an adjournment due to ill health. The practitioner advised that she had sent eight witness statements for signing and she was awaiting their return to her post office box. However, she added that she not checked her post office box since Monday 12 May 2008. She undertook to fax the covering letters attached to those draft witness statements to the Tribunal later that day. The practitioner did not comply with that undertaking.
The practitioner then advised that she had prepared half of her witness statements but had made no progress since 13 May 2008. The practitioner seemed confused as to the distinction between her lack of preparation on factual issues and the grounds or legal reasoning underlying her defence to the proceedings. Her general practitioner, Dr Louie, was called and gave evidence before the Tribunal. He expressed the opinion that the practitioner was well enough to attend the hearing.
The practitioner's application for an adjournment was refused. Although in the usual course the Tribunal would grant an adjournment if the respondent is unwell or otherwise unable to attend, the Tribunal had before it no satisfactory medical or other evidence to support the practitioner's argument for an adjournment. The practitioner's own doctor had advised the Tribunal that the practitioner was well enough and capable of attending the Tribunal and presenting her case. The Tribunal told the practitioner that she should appear in person that afternoon, but if that was not possible, then she could appear and cross‑examine the LPCC witnesses by telephone. The Tribunal also gave her the opportunity of appearing and cross‑examining the LPCC witnesses by telephone. Although the practitioner took advantage of that proposal to some extent in the morning, she did not appear in the afternoon either in person or by telephone. The practitioner advised the LPCC after the luncheon adjournment that she was on her way to a barrister's chambers to obtain advice but she refused to say who she was seeing. The hearing continued in her absence.
On 23 May 2008, the Tribunal reconvened. The LPCC sought leave to amend its applications. The practitioner, although notified to attend at 10 am, arrived at 11.34 am. She told the Tribunal that she needed professional advice and that she was still unwell. She had asked counsel, Mr Quinlan, to act for her and she advised that he required an adjournment until the following week so he could look over the amended grounds of the applications. At this stage, despite undertaking to do so, the practitioner had not sent any draft witness statements or covering letters to the Tribunal. She advised that this was because no-one had yet returned the draft witness statements to her.
On 26 May 2008, when the Tribunal reconvened, Mr Quinlan appeared with the practitioner. He advised he appeared in a very limited capacity with limited instructions to oppose the amended applications and to seek an adjournment of the proceedings so that the practitioner might be properly prepared. Mr Quinlan said that it appeared to him that the practitioner was not properly prepared for the hearing and that she was 'curiously disengaged' (T:15, 26.05.08) from the process of the proceedings. The practitioner then advised the Tribunal that she proposed to call eight witnesses and that she had two of the draft witness statements. She said that she had spoken to one witness who was prepared to sign his statement; however, all other witnesses would have to be summonsed. She undertook to attend to those summonses in the luncheon adjournment. She also handed up to the Tribunal three pages of her own witness statement. The practitioner had, at all times up to this point, advised the Tribunal that she intended to give evidence and that she wished to file a witness statement in accordance with the Tribunal's directions. She gave the Tribunal the two draft witness statements which were from Mr M and Ms H. At no point did the practitioner provide to the Tribunal final or signed witness statements from those or any other witnesses.
During the luncheon adjournment on 26 May 2008, the practitioner appeared to collapse at the registry of the Tribunal. An ambulance was called and she was taken to Royal Perth Hospital. The Tribunal advised the practitioner that it required a medical report as to the condition of her health and her ability and capacity to conduct and be part of the proceedings. The discharge notice from Royal Perth Hospital given to the Tribunal by the practitioner showed that no medical condition had been identified.
On 27 May 2008, the practitioner advised the Tribunal that she would not be home from Royal Perth Hospital until the afternoon. She would therefore not be able to attend the Tribunal. The practitioner was discharged from hospital at 3.40 pm. The following day, 28 May 2008, the practitioner did not attend or contact the Tribunal despite attempts by the Tribunal and the LPCC to contact the practitioner. The Tribunal made further orders as to the filing of witness statements and other documents and as to the future conduct of the hearing. Those orders were sent to the practitioner and the LPCC.
23 July 2008 directions hearing
Following a request from the practitioner for an urgent directions hearing, the Tribunal made orders listing the proceedings for directions on 23 July 2008. The practitioner sought an adjournment of the hearing and an extension of time to comply with the orders regarding witness statements. The practitioner also advised that she had been ill between the 28 June 2008 and 5 July 2008, and had therefore been unable to comply with the Tribunal's orders to file witness statements. This was despite having had in effect two years to produce these documents and prepare for the proceedings.
The practitioner also informed the Tribunal that she required an adjournment because she was depressed. However, the practitioner's psychiatrist gave evidence before the Tribunal. He could not confirm that the practitioner was medically depressed and he advised the Tribunal in effect that the practitioner could proceed to participate in and actively conduct the proceedings. The psychiatrist's view was that the practitioner was suffering from the usual stress that a party in similar circumstances to the practitioner would be likely to suffer.
The practitioner also said that she had met with ten witnesses since 1 July 2008, and that she had substantially completed ten witness statements and sent each of those witnesses a letter. This was not corroborated by any of the practitioner's witnesses. The practitioner listed the witnesses to whom she had written. In particular, she advised that she had contacted Mr C and that she had emailed him in March 2008 regarding the proceedings. The practitioner told the Tribunal that Mr C had given her a perfunctory reply and that she had again emailed him on 20 May 2008. She had sent him a draft witness statement.
Subsequently, on 27 October 2008, the practitioner advised that Mr C had emailed a person from her previous church stating that he did not want to give evidence. The Tribunal was unable to locate Mr C and he did not give evidence to the Tribunal. The practitioner did not provide a copy of any correspondence or draft or final witness statements for him nor indeed for any of the other witnesses that she identified on 23 July 2008.
In total, the practitioner provided the names of 24 witnesses that she wished to call. She also wished to recall the LPCC's witnesses whom she had not had an opportunity to cross‑examine as she had not attended the Tribunal. The practitioner advised the Tribunal that she had sent six draft statements and that she had filed two draft statements with the Tribunal. She confirmed that she had met with eight of her witnesses since May 2008 and undertook to lodge all draft witness statements for all of her witnesses by 24 July 2008. The practitioner said that she had received from the LPCC and the Tribunal various documents and a DVD of all Aragon legal files. She confirmed that although she had received all of the documents at least six weeks earlier, she had not looked at them.
The Tribunal informed the practitioner that the process‑server had been unable to serve her at the address that she had given the Tribunal. In fact, the process‑server swore to the Tribunal that the practitioner had never lived at that address according to reports given by residents of the premises at the address. After much discussion, the practitioner confirmed that she was living with her mother and provided that address to the Tribunal.
It was apparent to the Tribunal on 23 July 2008 that the practitioner was having difficulty facing up to these proceedings and doing what was required to meet the allegations, including contacting her witnesses. She told the Tribunal that she did not have the money to pay the issue fee for 24 summonses. The Tribunal advised that it would serve the summonses on each witness. The practitioner undertook to provide recent addresses for all of her witnesses. As it transpired, none of the addresses provided were accurate.
The adjourned hearing
The hearing continued on 27 October 2008. At the commencement of that day's proceedings, the practitioner advised the Tribunal that she would file nine draft witness statements with the Tribunal by the close of business on that day. However, during the course of that day's proceedings it became apparent that the practitioner had not contacted any of her witnesses at the time or in the manner expressed in her undertaking. The practitioner subsequently advised the Tribunal that although she had not spoken directly to witnesses, for example, her former client Mr T in Victoria, she had emailed them.
Later that day the practitioner sent a fax to the Tribunal which contained the following information and allegations:
I have spent my time since the hearing adjourned at 1.35 pm contacting my proposed witnesses. I have experienced the extraordinary response from each and every witness (for whom I planned to lodge the draft and/or completed Witness Statements by close of business today) that they either wished to claim "privilege" over their current draft statements and/or are seeking legal advice regarding their participation in these proceedings.
Two of my proposed witness – who asked me not to cite their names at present – have also claimed that the Legal Practice Board contacted them in or around July to August 2008 and specifically told them not to respond to any communications from me. A third witness also claims that my former employer and co-director, Catherine Bachleda, contacted them and directly asked whether I had been in communication with them. The third witness then claimed that Bachleda "warned them" not to take any part in these proceedings.
The practitioner did not file any draft or signed witness statements on that day or subsequently.
On further examination on 3 November 2008 by the LPCC's counsel, Ms Cahill, and in response to questions from the Tribunal, the practitioner named several of her witnesses who she alleged had been approached in this manner by the Legal Practice Board (T:8-14, 3.11.08). All of the practitioner's witnesses who subsequently gave evidence denied that they had claimed privilege or that they were seeking legal advice or that they had made these comments to the practitioner, if indeed they had even spoken to her. On their evidence, none of the witnesses had been contacted by Dr Bachleda or the Legal Practice Board or the LPCC and advised not to participate in the proceedings. The contents of the practitioner's fax on 27 October 2008 were fanciful and evidence of another delaying tactic by her. In the Tribunal's view, the fax and practitioner's statements to us in support of it are an instance where the practitioner's claims as to why she was unable to prepare her defence and proceed at the hearing have been exposed as false. This conduct reflects negatively on the practitioner's credibility and illustrates why her statements and explanations generally are open to question.
The proceedings were listed to resume on 3 November 2008. The practitioner arrived at 10.20 am and advised the Tribunal that she had scanned (or typed) and emailed to the Tribunal all documents and witness statements as required by Thursday 30 October 2008. They had not been received at the Tribunal. The practitioner had not brought copies of the witness statements or other documents with her, either in hard copy or on her thumb drive. She advised that she had reduced her own witness statement from 60 pages to 28 pages after help from her new counsel Mr Hooker, but that she had not shown Mr Hooker her final 28 page witness statement. She did not produce this and could not recall if she had printed out a copy of her witness statement. The practitioner subsequently advised the Tribunal that she had no printer paper. It was agreed between the parties and the Tribunal that the Deputy President would take the extraordinary step of arranging for her associate to go with the practitioner to her home with the necessary printing paper and a thumb drive to assist the practitioner to print out her materials.
In the luncheon adjournment, the practitioner went with two Tribunal staff members to her home as arranged. However, once inside, the practitioner would not allow the staff to enter and ultimately taped a notice to a window that she was not returning to the Tribunal that afternoon.
The Tribunal reconvened on 4 November 2008 at 10 am. The practitioner did not appear. The Tribunal received a fax from the practitioner at 10.08 am advising that she would attend at 2.15 pm, that she had contacted her witnesses and provided the Tribunal with her amended witness timetable. She also stated in that fax that she would fax through all witness statements prior to 2.15 pm. She sent a certificate from her general practitioner saying that he had examined the practitioner on 3 November 2008 and she was 'unable to function today because of emotional distress'.
Meanwhile, the first of the practitioner's witnesses had attended the Tribunal and proceedings were initially delayed pending the arrival of the practitioner. On receiving advice of her non-attendance, the Tribunal proceeded to hear from the first witness and asked him questions that the practitioner had indicated in July 2008 that she wished to ask him. The Tribunal attempted on several occasions to telephone the practitioner on her mobile so that she could ask questions of the witness. As the practitioner had advised that she would be attending at 2.15 pm, the witness was requested to return after the lunch adjournment. At 3 pm the witness had to leave. The practitioner arrived soon after.
The Tribunal had continued to press the practitioner for her witness statement as she had continued to indicate in the strongest terms that she wished to give evidence, had prepared a witness statement and was happy to file it. On her arrival on 4 November 2008, the practitioner submitted a short 'summary' of her witness statement. The practitioner had arrived with a suitcase of materials but had omitted to bring her 'full' witness statement or any of the draft witness statements that she said she had prepared.
The practitioner advised the Tribunal that she had faxed and emailed all of the required documents and the witness statements. However, whilst the Tribunal had received her faxes about being late the Tribunal had not received the faxes that the practitioner alleged she had sent containing her witness statements. It was at this stage on 4 November 2008 that the practitioner stated that she would not provide electronic copies of her witness statements as they were not relevant, in her view, to support her claims that they had been prepared. The Tribunal thinks otherwise. It was fundamental to the undertakings that the practitioner gave the Tribunal that she had prepared all of these draft witness statements many months earlier. The electronic versions would have indicated the dates on which the statements were first prepared and subsequently amended. In the Tribunal's view, the continuing assertions by the practitioner that she had prepared witness statements and her continued failure to ever produce those statements undermines her credibility.
The Tribunal reconvened, as agreed, on 5 November 2008. The practitioner left telephone messages on the general Tribunal switchboard at 9.20 am and 9.46 am that she was ill and would not be attending. Again, the practitioner confirmed that she had faxed and emailed all required documents. These had not been received by 5 November 2008 and were not provided subsequently.
On 6 November 2008, the Tribunal again reconvened at 10 am in accordance with notice it had given. The practitioner telephoned the general number of the Tribunal registry at 10.35 am and advised that she would arrive at 10.45 am. The practitioner arrived at 11 am and advised the Tribunal that that was 'the best that I can do'. The practitioner said (T:229, 6.11.08):
my circumstances are what they are, Judge Eckert. I wish to have recorded that this is the best that I can do. I know that it falls short of whatever levels that are expected of me, but it is what it is. I apologise.
She tendered pages 1 - 4 and page 25 of her draft unsigned witness statement, together with two annexures, and advised that counsel Mr Hooker had given her advice that those pages were all that she should release to the Tribunal.
There followed lengthy discussion about what the practitioner had filed in response to the LPCC's applications to the Tribunal and in accordance with Justice Barker's orders. The practitioner said that she filed part 3 of her response on or about 7 December 2007. There was no record with the Tribunal of it ever having been lodged and the LPCC had not received it. Furthermore, the filing of it at that time would have been inconsistent with subsequent orders made by Justice Barker that she file a response. The practitioner had made no enquiries to ensure that it was lodged and had no evidence that it was lodged.
The practitioner provided a copy of part 3 of her response to the Tribunal and the LPCC (exhibit 32). Large parts were incomplete and the practitioner expressed confusion as to why so much had been left blank. The hearing proceeded and the Tribunal heard further from the practitioner's witnesses.
When the practitioner attended the Tribunal on 7 November 2008, she advised that her health and financial situation had impeded the conduct of her defence. She admitted in effect that she was unprepared for the proceedings. She claimed that she had complied with all Tribunal orders with respect to witness statements; however, at the same time the practitioner conceded that she had not filed any final witness statements (T:123-124, 7.11.08).
It is important to note that on several occasions the Tribunal recommended to the practitioner that she obtain independent legal advice. At an early stage, the Tribunal facilitated the practitioner obtaining assistance from counsel Dr Hockley. He acted for the practitioner on a pro bono basis from July 2006 to February 2008. Dr Hockley advised the Tribunal on 6 February 2008 that he had assisted the practitioner at the instigation of the then President of the Tribunal and spent an 'inordinate amount of time on these matters'. However, 'the situation has arisen where I would not be assisting either Ms Bachmann or the Tribunal to continue to act'. Subsequently, encouraged by the Tribunal the practitioner obtained some limited advice and assistance, from Mr Quinlan and Mr Hooker. However, it appears both counsel were approached at a late stage of the proceedings and given limited instructions and a selective collection of materials to consider. The Tribunal is grateful to those barristers for the assistance they provided. However, for much of the proceedings, Ms Bachmann represented herself.
We have set out in some detail aspects of the practitioner's conduct during the period of these proceedings in order to illustrate the areas and extent of our concern about the practitioner. We take into account that the practitioner was representing herself in the defence of very serious charges advanced forcefully, but always fairly, by Ms Cahill for the LPCC. We accept the practitioner was suffering some stress in consequence of this. We are conscious also that this conduct was itself not the subject of the applications or any amended applications. However, the issue of the practitioner's credibility and integrity is critical to the determination of these applications and, as we made clear to the practitioner, should we find her guilty of the charges brought, her conduct may well be relevant to penalty.
In that respect it is relevant to record our considered impressions of the practitioner in the course of her defence of the charges brought. We think that the practitioner was dishonest or evasive with us and the LPCC on the subjects of the state of her health, her contact with prospective witnesses and their addresses, the preparation of witness statements including her own and the filing of part 3 of her response. These were subjects on which the practitioner was cross-examined.
The subject of our assessment of the practitioner's professional competence is also of some relevance in determining the probabilities of the matters the subject of the applications. As will be seen, the contest is between the LPCC's case which is that the practitioner repeatedly failed to act as instructed but claimed she had; and the practitioner's case that she had competently and in a timely manner done what was asked of her but that others (her clients, public officials, Aragon, third parties) had caused delays to completion. As evidenced by her conduct of these proceedings the practitioner repeatedly failed to do what she was ordered to do and sometimes undertook to do and either blamed others or technology for this failure or attributed a change of circumstances for non‑compliance.
We think the manner in which the practitioner has conducted her defence is relevant to our findings on the substantive applications in the manner we have indicated, but it is certainly not determinative of them and we would have reached the same decision in any event. The practitioner's closing submissions following the hearing showed considerable industry but limited understanding of the legal principles governing the application. For instance, the practitioner submits that because the LPCC is required to prove certain negative propositions and also the mental elements necessary for fraud, deception and dishonesty, the criminal standard of proof should apply. It is well settled that the standard of proof in disciplinary proceedings such as these is the civil standard but taking into account the principles of Briginshaw. In both her response and closing submissions, the practitioner raises the spectre of the liability of the directors of Aragon in relation to the matters the subject of the applications. The alleged liability of the non-legal directors of Aragon cannot be a relevant consideration to our determination of the consequences of the practitioner's conduct. Again, in her response and closing submissions, the practitioner complains that she effectively undertook four full-time jobs at Aragon but was paid for one full-time position. She alleges that the directors of Aragon engaged in misleading and deceptive conduct and were in breach of s 52 of the Trade Practices Act 1974 (Cth), when they employed her. Whilst the fact that the practitioner was under some pressure at work may be relevant (and would be relevant to penalty) the size of her salary, which she accepted on being employed, is not.
The practitioner's employment with Aragon
The LPCC complains about the conduct of the practitioner in the period August 2005 to September 2006. In August 2005, the practitioner commenced employment with Aragon. This was an incorporated legal practice with non‑legal directors, Dr Bachleda and Mr Venables, who gave evidence before us. The practitioner was dismissed from the company in May 2006. The matters the subject of complaint largely took place during the period in which the practitioner was employed by Aragon and relate to Aragon's clients.
The practitioner was admitted to practice in December 1996 in Western Australia and worked in Perth as an employed junior practitioner and then from 1999 practised on her own account. Thereafter she advises that she lived and worked in Sydney and the USA as a 'business consultant/paralegal'. She returned to Perth in September 2004 and in February 2005 she resumed sole practice as 'TY Bachmann Lawyers'.
In July 2005, the practitioner answered an advertisement from Aragon for a 'commercial solicitor'. She was interviewed and commenced employment on 1 August 2005. There was an initial four month probation period. On 3 December 2005, the practitioner achieved permanent status and commenced as 'Principal Solicitor'.
A written assessment made of the practitioner's performance as at 21 October 2005 and 1 December 2005 was put into evidence. At each of these times both Aragon and the practitioner expressed satisfaction with their arrangements. However, in her response and in evidence the practitioner consistently alleged that during her time with Aragon she was put under considerable pressure, both 'personal and professional', by Dr Bachleda who 'relied upon her too much'. The practitioner submitted that part of the responsibility for the matters the subject of complaint ought to be borne by the directors of Aragon. This was so notwithstanding that they were not lawyers and had engaged the practitioner in order to undertake the legal work for Aragon.
The practitioner and the directors of Aragon agreed a budget for the fees it was planned the practitioner would bring in for Aragon. The practitioner was keen to demonstrate to the principals at Aragon that she was performing well and bringing in the fees expected of her. In relation to the G matter, this led to the practitioner claiming to have undertaken a great deal of work in preparing for proceedings in a Supreme Court action and claiming that fees of $40,000 would be earned from these proceedings if the matter went to trial.
Many of Aragon's clients sought its services in relation to liquor licensing applications. The evidence examined below discloses that the practitioner was not familiar with the appropriate procedures of this jurisdiction. Rather than owning up to this and either declining instructions or obtaining the necessary assistance, the practitioner took on these matters and continually wrote to her clients advising them of the purported progress of their applications through ORGL.
On 1 May 2006, the practitioner telephoned Dr Bachleda and advised that she was with a client and would return to work later. She did not do so. The next day the practitioner's mother rang Dr Bachleda and advised that the practitioner was with a client and would return the next day. She failed to arrive at work. On the following day, the practitioner's mother spoke to Dr Bachleda and advised that the practitioner was sick and requested a two month leave of absence. This led to the practitioner's dismissal on 5 May 2006. In her evidence, the practitioner said that during part of the period she was absent she suffered a complete loss of memory as to where she had been or what she had done.
Following the dismissal of the practitioner, Dr Bachleda arranged for another solicitor, Mr Boni, to review the hard copy and electronic files that the practitioner was working on. He discovered that there appeared to be documents missing on Mr and Mrs G's file, in particular the court documents work, and from the liquor licensing files, primarily copy applications with associated documents. Mr Boni spoke to the practitioner about the matter and suggested that when she return to collect her personal belongings, she look for the documents from Mr and Mrs G's file. The practitioner told him the documents must have been removed from the file. She did not undertake a search for the documents when she made her final visit to Aragon's offices. Dr Bachleda, with Mr Boni's assistance, arranged to complete or return the various files, sometimes refunding the clients the fees which they had been charged for services purportedly performed by the practitioner.
On 14 July 2006, in proceedings before the Tribunal, the practitioner agreed to her suspension from legal practice.
The practitioner's credibility
In assessing the practitioner's credibility, we have had the opportunity over a number of days to observe the practitioner's demeanour in giving evidence. We have also had the opportunity to study the transcript of her evidence. Our assessment of the practitioner's credibility is based primarily on the practitioner's evidence under oath in relation to the issues in the matter and, to some extent, on the practitioner's conduct before the Tribunal.
We are conscious that with respect to many of the matters the subject of the hearing the practitioner was required to recall events extending back three or so years. As mentioned above, we are conscious also that the practitioner was representing herself in these proceedings and bore the stress of doing so. In particular, she was required both to conduct her defence as well as give evidence.
Taken in isolation, the practitioner's evidence on various matters seemed plausible. She spoke well, had a good vocabulary, in many respects had a good recall of detail and was seldom without an answer. However, as the hearing progressed, it became apparent that the practitioner's evidence of the events which had occurred became less and less believable when tested against other oral and documentary evidence, the objective facts and the probabilities. On several subjects the practitioner appeared to invent answers to explain why, in relation to the matters the subject of the applications, she was unable to complete work she had undertaken, and in relation to the hearing, why she was unable to contact witnesses and so on.
On subjects where the practitioner was confronted with evidence opposing her version of events, the practitioner often took refuge in verbosity and irrelevance. An example of this follows (T:253, 6.11.08). In response to a question from the LPCC's counsel, Ms Cahill, the practitioner's evidence was as follows:
Well, it's a fact, isn't it, that you didn't give the email address to the SAT? ---I believe that - - -
You gave a postal address, didn't you?---Sorry? What date are we referring to? Because I remember at the very last request for confirmation of addresses et cetera, I received an email from President Barker J's associate and I make an apology in that I presumed she was Judge Eckert's new associate, so I gave her the wrong title – but, anyway – and when – when she asked for certain addresses, I replied to her by email that there were only two that I could verify as at that date as being definite. So I didn't mention Mr Cheong at all, I believe.
The practitioner ultimately never provided the information requested either in her evidence, in writing or from the bar table.
There is in the practitioner's response and closing submissions the common theme that whilst she does not admit to any specific charges made, she was disadvantaged at the final hearing by reason of memory loss, psychological or psychiatric stress, illness and the passage of time. The medical evidence on which the practitioner sought to rely fell well short of supporting a claim that her memory or capacity was relevantly affected in relation to the matters the subject of the proceedings. The practitioner apparently failed to obtain and read many of the principal documents on which the LPCC relied for its case and which were available to the practitioner insofar as they were tendered by the LPCC (for instance the files relating to the various clients' matters). The practitioner was provided with a copy of the disc containing an electronic copy of Aragon's legal files but admits that she did not make use of this.
In her closing submissions, the practitioner maintains that 'credibility is not an all or nothing matter' in that it may be affected by memory loss, stress and illness. To the extent that the practitioner submits that it is not appropriate for the Tribunal to make an adverse finding about her credibility in relation to one event and adopt it with respect to all matters, we think this is correct. It seems to us necessary to identify the various points at which the practitioner's credibility is important to a determination of a particular matter and to then examine the specific context and so on to make the appropriate determination in respect of that matter. That is how we have proceeded. That said, however, we have made an assessment of the practitioner's credibility taking into account the whole of her evidence. There are a large number of occasions in which there are obvious factual errors in what the practitioner has reported to her clients. The practitioner's explanations to us in this respect include innocent error, her misunderstanding of procedures, her poor expression in some of the relevant documents, error on the part of Aragon's staff, error on the part of ORGL, the pressures on the practitioner and her working under stress and so on. Having regard to this evidence and the probabilities of the mater, we take the view that the errors cannot be explained in the manner suggested by the practitioner. For the reasons given below we think that the practitioner effectively lied to her clients about the progress of their matters in order to hide her deficiencies and that her critical evidence was in several crucial respects dishonest and generally unreliable.
VR 53 of 2007 - the G matter
Statement of facts
It is convenient to set out the relevant parts of the LPCC's amended statement of facts:
…
3.In about August 2005 Ms [G] and Mr [G] ('the [Gs]') sought advice from the practitioner in the course of her employment by Aragon regarding a potential claim by the [Gs] against the vendor of a property at … Morley ('the Morley property') that the [Gs] had contracted to purchase.
4.At all material times the [Gs] had contracted to sell the property they owned at ... Viveash ('the Viveash property') to assist in funding their purchase of the Morley property.
5.On about 19 September 2005, Mr [G] informed the practitioner by telephone to the effect that the [Gs] no longer wished her to act for them.
6.On about 20 September 2005, the practitioner caused Aragon, as purported caveator, to lodge caveats over the Morley property and the Viveash property in circumstances where:
(a)the practitioner on behalf of Aragon falsely claimed that Aragon was a secured creditor of the [Gs];
(b)the practitioner on behalf of Aragon falsely claimed that Aragon was entitled to receive a portion of the proceeds of a sale of the Morley property and the Viveash property;
(c)the practitioner knew at the time she made them that the claims pleaded in subparagraphs (a) and (b) above were false;
(d)alternatively to (c), the practitioner made the claims recklessly, not caring whether they were true or false;
(e)the practitioner knew that the [Gs] were not at that date indebted to Aragon in any amount; and
(f)the practitioner knew that there was no basis, reasonable or otherwise, to justify the lodgement of either caveat.
7.At some time after 20 September 2005, by an invoice purportedly dated 31 August 2005, the practitioner on behalf of Aragon purported to render to the [Gs] an invoice that included fees for:
(a) drafting documents to initiate Court proceedings;
(b) legal research; and
(c)preparing and finalising witness statements for the [Gs] and their children,
when in fact, and to the practitioner’s knowledge, no such work had been done by the practitioner or Aragon.
8.By an invoice dated 7 October 2005, the practitioner on behalf of Aragon purported to further invoice the [Gs] for:
(d) drafting documents to initiate Court proceedings;
(e) preparing Court submissions;
(f) legal research; and
(g)preparing witness statements for the [Gs], a property inspector and a Western Power inspector,
when in fact, to the practitioner’s knowledge, no such work had been done by the practitioner or Aragon.
9.By letter from Aragon to the [Gs] dated 11 October 2005, the practitioner falsely represented to the [Gs] that:
(a)the practitioner had undertaken work on their behalf to justify the invoices referred to in paragraphs 7 and 8 of this application;
(b)the practitioner had advised the [Gs] by telephone on 6 September 2005 of the amount of the first invoice the practitioner purportedly raised;
(c) Mr [G] had requested that invoice be fully itemised;
(d)Aragon had posted an itemised invoice to Mr [G] on 16 September 2005;
(e)Mr [G] had previously been unwilling to negotiate a payment plan in respect of those invoices; and
(f)Aragon was entitled to lodge caveats over the Morley property and the Viveash property because the [Gs] had not paid Aragon’s invoices.
10.By letter dated 17 October 2005 from Aragon to solicitors for the [Gs], Thompson Legal Pty Ltd, the practitioner falsely represented to Thompson Legal Pty Ltd that:
(a)the practitioner had undertaken work on behalf of the [Gs] to justify the invoices referred to in paragraphs 7 and 8 of this application;
(b)Aragon was entitled to lodge caveats over the Morley property and the Viveash property because the [Gs] had not paid Aragon’s invoices;
(c)Mr [G] had requested from Aragon an itemised invoice on 6 September 2005; and
(d)Aragon had posted an itemised invoice to Mr [G] on 16 September 2005.
11.By letters from Aragon to Thompson Legal Pty Ltd dated 17 October 2005 and 2 December 2005, and by facsimile transmissions from Aragon to Thompson Legal Pty Ltd dated 1 November 2005 and 2 November 2005, the practitioner falsely represented to Thompson Legal Pty Ltd that:
(a)the practitioner had undertaken work on behalf of the [Gs] to justify the invoices referred to in paragraphs 7 and 8 of this application;
(b)Aragon was entitled to payment pursuant to those invoices; and
(c)Aragon was entitled to lodge caveats over the Morley property and the Viveash property because the [Gs] had not paid those invoices.
12.By letter from Aragon to Sheridan Settlements dated 1 November 2005, the settlement agents for the [Gs] in respect of the Viveash property, the practitioner:
(a)falsely represented that Aragon was entitled to lodge caveats over the Viveash property because the [Gs] had not paid Aragon’s invoices;
(b)falsely represented that the [Gs] had made contracts with Aragon in which the [Gs] had agreed that the [Gs'] legal fees payable to Aragon would be paid from the proceeds of sale of the Viveash property;
(c)advised Sheridan Settlements of the amount in which the practitioner claimed that the [Gs] were indebted to Aragon;
(d)proposed that Aragon would provide a withdrawal of caveat at settlement of the sale of the Viveash property if, at the same time, Aragon received payment in full of its invoices; and
(e)requested that Sheridan not disclose the letter or its contents to the [Gs].
13.From about mid November 2005 to about early April 2006, the practitioner misled counsel retained by her to act on Aragon’s behalf, Mr Scott Ellis, by falsely representing to him that:
(a)the practitioner had undertaken work on behalf of the [Gs] to justify the invoices referred to in paragraphs 7 and 8 of this application;
(b)Aragon was entitled to payment pursuant to those invoices; and
(c)the [Gs] had made statements to the effect that Aragon’s invoices would be paid from the proceeds of sale of the Viveash property.
13A.When the practitioner made the representations pleaded in paragraphs 9-13 above:
(a) she knew each of the representations to be false;
(b)alternatively, she made each representation recklessly, not caring whether it was true or false.
14.On or about 29 November 2005, the practitioner caused to be lodged with the Department of Land Information documents for the purpose of seeking an extension of time for the operation of the caveat Aragon had lodged over the Viveash property in circumstances where:
(a)the practitioner knew that the [Gs] were not at that date indebted to Aragon in any amount, alternatively, were not indebted to Aragon in the amount then claimed by it; and
(b)the practitioner knew that there was no basis, reasonable or otherwise, to justify the continued operation of the caveat.
15.On or about 5 December 2005, the practitioner caused Aragon to institute proceedings against the [Gs] in the Magistrates Court of Western Australia for recovery of the amounts the subject of the invoices referred to in paragraphs 7 and 8 of this application ("the Magistrates Court proceedings").
16.On or about 20 December 2005, the practitioner caused Aragon to file in the Magistrates Court proceedings an application for judgment against the [Gs] in default of defence.
17.On or about 6 April 2006, the practitioner caused Aragon to file in the Magistrates Court proceedings a statement of claim in which the practitioner falsely claimed that:
(a)Aragon had undertaken work on behalf of the [Gs] to justify the invoices referred to in paragraphs 7 and 8 of this application; and
(b)Aragon was entitled to payment pursuant to those invoices.
18.The practitioner took the steps pleaded in paragraphs 15 - 17 above in circumstances where:
(a)the practitioner knew that the [Gs] were not at that date indebted to Aragon in any amount, alternatively, were not indebted to Aragon in the amount claimed by it in the Magistrates Court proceedings; and
(b)the practitioner knew that there was no basis, reasonable or otherwise, to justify the institution and prosecution of the Magistrates Court proceedings.
19.On about 13 May 2006, the practitioner falsely represented to Stefano Boni, a legal practitioner engaged by Aragon to review the status of Aragon’s legal client files, that she had undertaken the work in respect of the [Gs]’ matter referred to in paragraphs 7 and 8 of this application.
20.When the practitioner made the representation pleaded in paragraph 19 above:
(a) she knew the representation to be false;
(b)alternatively, she made the representation recklessly, not caring whether it was true or false.
The reason that that course is appropriate is that these proceedings were commenced under the LP Act, and the hearing was completed, save for delivery of the decision, under the provisions of the LP Act. It is appropriate that they be completed in a manner entirely consistent with the substantive and procedural rights which existed under the LP Act. A direction under s 607(4) of the 2008 Act readily enables that objective to be achieved.
Accordingly, the President of the Tribunal has reconstituted the Tribunal pursuant to s 11(8) of the SAT Act for the purpose of considering the appropriate penalty in light of the findings reached by the Tribunal.
The issue
The issue before us is whether the Tribunal's findings regarding the practitioner's conduct are so serious that the practitioner is not a fit and proper person to remain a legal practitioner; Re Maraj (a legal practitioner) (1995) 15 WAR 12 at 25 (Maraj).
Principles
Fitness to practice is to be decided as at the time of the hearing and not at the time of the alleged misconduct (see A solicitor v the Council of the Law Society of NSW (2004) 216 CLR at 253 [15]). Subject to issues of fair notice, the Tribunal is therefore entitled to take into account the manner in which the practitioner conducted her defence and the veracity with which she gave evidence; see Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32 at [109] and [110].
An important object of professional disciplinary proceedings is to maintain and protect the reputation of the profession.; see Maraj at 24 25. When dealing with allegations of unprofessional conduct, the Tribunal is required to act in the public interest, not with a view to punishment; see Bar Association v Evatt (1968) 117 CLR 177 at 183 184. The gravity of the practitioner's misconduct may mean that nothing short of removal from the Roll of Practitioners can properly protect the public or preserve the reputation of the profession. Ultimately though, that sanction is a matter for the Supreme Court (full bench).
Honesty, fairness and integrity are essential prerequisites to the right to practise law. Willingness to engage in dishonest behaviour is of central relevance to an assessment of a practitioner's fitness to practise; see Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119 at [8], and The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 at [58].
Honesty is also fundamental to public and curial confidence in the legal profession. Fitness to practise requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges; see Re Davis (1947) 75 CLR 409 at 420.
A practitioner's failure to understand the impropriety of his or her conduct may be a factor of great importance in determining whether they should be permitted to stay on the Roll of Practitioners; see Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 at [35].
Conduct with respect to clients
G matter
The Tribunal found the practitioner's conduct with respect to the G matter to display incompetence, confusion and dishonesty [141]. It concluded her invoices to the Gs were not genuine. At [153], it identified a range of fraudulent misrepresentations that she made to her clients. She deliberately lied to her clients. She deceived her clients. And she charged them for work she had not done. Ultimately, she purported to sue her clients for fees that she says were incurred. She briefed counsel to do this. She caveated the land they were selling and purchasing, she secured the fees when she was not entitled to. The practitioner's conduct with respect to her clients, the Gs, was disgraceful. It is not the conduct of an honest or competent practitioner in whom the court or the public can have faith.
Eight clients
With respect to the five liquor licensing matters, the Tribunal found that the practitioner lied to her clients that work was done; she invented a convoluted story of how the process of ORGL, the relevant government department, operated; she blamed the department's staff for mistakes; she said staff were subsequently fired because of what they had done or not done on her particular client files; refer to the Tribunal's findings regarding the M matter at [165] [174]; the HGW matter at [175] [181]; the F matter at [182] [186]; the UT matter at [187] [192]; and the B matter at [193] - [200].
It is difficult to understand what the practitioner was thinking when she misled her clients and her employer with respect to the liquor licensing applications. She must have known that ultimately the truth would emerge and her assertions would be exposed as false.
The Tribunal's findings with respect to the FGC matter are at [201] [210]. The practitioner gave vastly different explanations of her discussions with the client and how she got instructions in the FGC matter. It was a 'convoluted and improbable' version of events that the practitioner ultimately put forward in cross-examination [205]. That paragraph also sets the garbled chain of events that the practitioner says occurred. At [206] [219], the Tribunal found the practitioner to have knowingly made false statements in the H matter and at [220] [234] in the A matter, the practitioner knowingly billed for work not done and court fees not incurred, contrary to s 137 of the LP Act. She did not pay the money that she received into trust. The practitioner also contravened s 203 of the LP Act when she acted for Mr A as she was practising as a lawyer after her suspension by the Tribunal.
Clearly, the practitioner's conduct fell far short to a substantial degree of what a reasonable person would expect of a reasonable practitioner.
Ultimate finding
The primary issue for us is whether the practitioner is a fit and proper person to remain a legal practitioner.
The unsatisfactory conduct found against the practitioner is of the utmost seriousness. That conduct is comprised of repeated and sustained dishonesty by the practitioner during the period of August 2005 to May 2006 in the course of legal practice and, specifically, in her dealings with her clients, her employer and other legal practitioners. We find that her conduct, as proven before the Tribunal in the lengthy substantive proceedings, clearly displays that the practitioner is not a fit and proper person to remain a legal practitioner.
That conclusion is reinforced by the practitioner's conduct in the course of the hearing of these complaints against her.
The practitioner's conduct during the hearing
The practitioner was put on notice that her conduct during the hearing could go to penalty.
The practitioner significantly complicated the proceedings. She did not file documents when ordered, and what she did ultimately file was generally unreliable and unhelpful to her case and to the Tribunal. She argued unnecessarily and repeatedly tried to draw argument away from the allegations and her proper defence and into the spurious allegation of unfair practices and misleading and deceptive conduct by her former employers.
The Tribunal was required, because of the practitioner's conduct, to depart from its usual procedures and practice so as to ensure that the practitioner was given all available and proper opportunities to present her case in the most favourable way possible. However, the practitioner continued on a path most detrimental to her case, ultimately destroying any confidence that the Tribunal or the profession could have in her.
The Tribunal found her evidence to be 'patently false, incredible, inconsistent and confusing', at [4] of the reasons. It found that she falsely created documents to support her often incredible claims. She conceded during the proceedings that she received documents fundamental to her defence which were forwarded to her by the Tribunal and by the LPCC, but did not look at them; for example, the practitioner alleged that the documents and files that would support her case were missing from Aragon. The Tribunal obtained a DVD containing all files that were on her computer at Aragon. The practitioner did not look at the DVD.
The practitioner gave the Tribunal false addresses for herself. She also gave false addresses regarding witnesses; the Tribunal found she did this intentionally. Though at times claiming she had complied with every order of the Tribunal, she never filed any witness statements. Despite repeated promises to file submissions and statements, they never materialised. She gave consistently conflicting reports about the status of her witness statements (see [20] [59] of the reasons). The Tribunal took the unusual and extremely timeconsuming step of summonsing the numerous witnesses she wished to call. As mentioned, none of the addresses that she provided were accurate, despite repeated requests for clarification.
The practitioner wrote to the Tribunal claiming that after witnesses had been summonsed, they were claiming privilege or seeking legal advice. She informed the Tribunal that 'each and every witness' had been approached by Aragon or the LPCC and warned not to give evidence. This was not borne out by any witness when they were asked whether this had occurred. In fact, most of them had had no contact with the practitioner for substantial periods of time, despite her having told the Tribunal of regular or recent contact.
At [42] of the Tribunal's substantive reasons, it found that the contents of the facsimile referred to and sent to the Tribunal were 'fanciful'. The claims she made in it were false and reflected very poorly on her credibility. At [56], the Tribunal refer to her conduct during the proceedings as being relevant to the penalty. At [57], it found her dishonest and evasive. She continually avoided giving the Tribunal any direct answers in response to reasonable questions put by it in its attempts to help her present her case.
As we mentioned, the practitioner failed to read or to look at principal materials on which the LPCC and subsequently, the Tribunal, relied in reaching its findings. She was given adequate time to do so. She had the assistance of pro bono counsel at various times, but she was very selective in what she briefed them. Clearly, the practitioner had trouble facing up to the proceedings and at no time during the proceedings did she display any remorse or insight.
The findings against the practitioner are sufficient by themselves to support a report being made to the Supreme Court with a recommendation that her name be struck from the Roll of Practitioners. Her conduct in the course of the hearing of the allegations against her further demonstrated her clear unfitness to practise as a lawyer.
Suspension
An order suspending the practitioner from practice was made in proceedings VR 116 of 2006. Those proceedings will now be dismissed as they were overtaken by the applications the subject of the substantive reasons for decision. It is therefore appropriate to make a further order for suspension of the practitioner pending the determination of the Supreme Court (full bench).
Costs and disbursements
Under s 87(1) of the SAT Act, each party to proceedings before the Tribunal generally bears their own costs. A discretion to award costs is, however, provided by s 87(2). In disciplinary proceedings, a vocational regulatory body brings before this Tribunal and prosecutes proceedings in the public interest. Where the vocational body is successful in the proceedings, it is the Tribunal's usual practice to make an order for reasonable costs in the applicant's favour. The LPCC would therefore ordinarily be entitled to its reasonable costs in bringing and maintaining the proceedings in the Tribunal; see Legal Practitioners Complaints Committee v Nino De Pardo [2007] WASAT 211 at [17] and the cases cited there.
The Tribunal has discretion as to what costs it should order and it can take into account what is a fair and reasonable costs order. The LPCC in these proceedings seeks payment of all disbursements, including counsel fees. It does not seek recovery of any costs other than those disbursements. Primarily, the LPCC contends that it has been successful in the application it has brought against the practitioner, and the practitioner's conduct in the course of the proceedings made them far longer and far more expensive than they needed to be: 'in particular the practitioner's overall lack of preparedness, her noncompliance with directions, and her failure to attend hearing days punctually or at all, caused significant delay and expense'; see [40] of the LPCC's submission.
A detailed schedule of disbursements and copies of accounts were provided to the Tribunal. The disbursements total $67,253.21. We find in the circumstances that it is a reasonable claim by the LPCC and, accordingly, we order that the practitioner pay costs fixed in that amount.
The LPCC also seeks an order for payment of the application fees on the related matter, VR 116 of 2006, which was overtaken by the applications the subject of these reasons. The LPCC also seeks dismissal of those proceedings. It was under those proceedings that the suspension orders were made. We therefore order that the practitioner pay the $270 filing fee on that application.
Orders
We therefore make the following orders:
1.pursuant to s 185(2) of the Legal Practice Act 2003 (WA), a report be transmitted to the Supreme Court (full bench) in respect of the conduct of the practitioner outlined in Legal Practitioners Complaints Committee and Bachmann [2009] WASAT 120 with our recommendation that the practitioner be struck off the Roll of Practitioners. These reasons for decision and the Tribunal's reasons set out in [2009] WASAT 120 constitute that report;
2.pending the determination of the Supreme Court (full bench), the practitioner continues to be suspended from practice under s 185(2)(a) of the Legal Practice Act 2003 (WA);
3.by 10 December 2009, the practitioner pay the Legal Practitioners Complaints Committee's disbursements in these proceedings of $67,253.21;
4.by 10 December 2009, the practitioner pay the Legal Practitioners Complaints Committee's filing fees of $270 with respect to VR 116 of 2006; and
5.the application order in matter VR 116 of 2006 is dismissed.
I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT
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