Legal Profession Complaints Committee and A Legal Practitioner
[2013] WASAT 37 (S)
•21 JULY 2014
LEGAL PROFESSION COMPLAINTS COMMITTEE and A LEGAL PRACTITIONER [2013] WASAT 37 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2013] WASAT 37 (S) | |
| LEGAL PROFESSION ACT 2008 (WA) | |||
| Case No: | VR:183/2010 | 27 AND 28 MAY 2014 | |
| Coram: | JUDGE D R PARRY (DEPUTY PRESIDENT) MR J MANSVELD (MEMBER) MR C EDMONDS SC (SENIOR SESSIONAL MEMBER) | 21/07/14 | |
| 42 | Judgment Part: | 1 of 1 | |
| Result: | Report on Tribunal's findings of professional misconduct made and transmitted to Supreme Court (full bench) with recommendation that the name of the practitioner be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008 (WA) The practitioner is to pay the Legal Profession Complaints Committee's costs in terms of disbursements in the amount of $46,365.75 within four weeks of the Tribunal's order or within such further period as agreed by the Legal Profession Complaints Committee | ||
| B | |||
| PDF Version |
| Parties: | LEGAL PROFESSION COMPLAINTS COMMITTEE A LEGAL PRACTITIONER |
Catchwords: | Vocational regulation Legal practitioners Unsatisfactory professional conduct Professional misconduct Penalty Parity principle Duties of fairness, honesty and propriety in relation to third parties affected by proposed court or tribunal orders Duty not to mislead a court or tribunal Failure to notify court of third party's interest Failure to notify third party of proposal to seek consent orders or of making of consent orders affecting third party's interest Failure to respond to Legal Profession Complaint Committee's enquiries in a proper and timely manner Report on findings of professional misconduct to Supreme Court (full bench) with a recommendation that name of practitioner be removed from Roll of Practitioners Costs |
Legislation: | Legal Practice Act 2003 (WA) Legal Profession Act 2008 (WA), s 403(1), s 438(2)(a), s 438(4)(b), s 439, s 440, s 441, s 441(a), s 441(m), Pt 13 State Administrative Tribunal Act 2004 (WA), s 62(3), s 87(1), s 87(2), s 105(13) |
Case References: | A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253 Australian Communications and Media Authority v TPG Internet Pty Ltd [2014] FCA 382 Australian Competition and Consumer Commission v Energy Australia Pty Ltd [2014] FCA 336 Australian Competition and Consumer Commission v Mandurvit Pty Ltd [2014] FCA 464 Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372; (2014) 305 ALR 323 Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32 Comcare v PVYW [2013] HCA 41; (2013) 88 ALJR 1; (2013) 303 ALR 1 Commissioner for Consumer Protection v Susilo [2014] WASC 50 Dixon v Legal Practice Board of Western Australia [2012] WASC 79 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Kennedy v Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJR 563 Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42 (S) Legal Practitioners Complaints Committee v Dixon [2006] WASCA 27 Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 Legal Practitioners Complaints Committee v Pepe [2009] WASC 39 Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 Legal Profession Complaints Committee and Benari [2005] WASAT 213 (S) Legal Profession Complaints Committee v Brickhill [2013] WASC 369 Legal Profession Complaints Committee v Segler [2014] WASC 159 Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) Motor Vehicle Industry Board and Dawson [2006] WASAT 8 New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 Phillips Fox (A Firm) v Westgold Resources NL & Ors [2000] WASCA 85 Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 Stirling v Legal Services Commissioner [2013] VSCA 374 The Council of the Queensland Law Society Inc v Wright [2001] QCA 58 Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 |
Summary | The Tribunal previously found that a legal practitioner engaged in professional misconduct in relation to consent orders affecting a third party's interests made by the Family Court of Western Australia in proceedings between the practitioner and his former wife. The Tribunal had found that the practitioner had the intent and carried out a course of conduct to have the consent orders made by the Court and to have a property transferred by him to his former wife pursuant to the consent orders, in order to secure a home for his children with their mother, and also to defeat the third party's claim to specific performance in relation to the property. The Tribunal found that, in doing so, the practitioner engaged in professional misconduct by breaching fundamental duties of fairness, honesty and propriety, to the Court and to the third party, to notify the Court of the third party's interest and to notify the third party of the proposal to seek the consent orders.,The Tribunal also previously found that the practitioner engaged in professional misconduct by intentionally causing the Court to be misled that there was no third party who ought to be heard by the Court before orders were made in terms of the minute of agreed orders. In addition, the practitioner engaged in professional misconduct by failing to subsequently notify, or attempt to notify, the third party that the consent orders had been made, and the Court of the third party's interest after the orders had been made.,Finally, the Tribunal previously found that the practitioner engaged in unsatisfactory professional conduct by failing to respond adequately and within a reasonable time to the Legal Profession Complaints Committee's enquiries.,The Tribunal required the parties to file submissions in relation to penalty and costs and listed these issues for determination. The hearing in relation to penalty and costs was delayed because of an appeal in relation to other disciplinary findings against the practitioner.,The Tribunal determined that the appropriate professional disciplinary consequence of the practitioner's conduct in the circumstances of this case is to make and transmit a report on the Tribunal's findings that the practitioner engaged in professional misconduct to the Supreme Court (full bench) with a recommendation that the practitioner's name be removed from the Roll of Practitioners. ,The Tribunal also determined that the practitioner should pay costs in terms of the disbursements incurred by the Legal Profession Complaints Committee in the proceeding in the amount of $46,365.75 within four weeks of the Tribunal's order or within such further period as agreed by the Committee. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and A LEGAL PRACTITIONER [2013] WASAT 37 (S) MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT)
- MR J MANSVELD (MEMBER)
MR C EDMONDS SC (SENIOR SESSIONAL MEMBER)
- Applicant
AND
A LEGAL PRACTITIONER
Respondent
Catchwords:
Vocational regulation Legal practitioners Unsatisfactory professional conduct Professional misconduct Penalty Parity principle Duties of fairness, honesty and propriety in relation to third parties affected by proposed court or tribunal orders Duty not to mislead a court or tribunal Failure to notify court of third party's interest Failure to notify third party of proposal to seek consent orders or of making of consent orders affecting third party's interest Failure to respond to Legal Profession Complaint Committee's enquiries in a proper and timely manner Report on findings of professional misconduct to Supreme Court (full bench) with a recommendation that name of practitioner be removed from Roll of Practitioners Costs
Legislation:
Legal Practice Act 2003 (WA)
Legal Profession Act 2008 (WA), s 403(1), s 438(2)(a), s 438(4)(b), s 439, s 440, s 441, s 441(a), s 441(m), Pt 13
State Administrative Tribunal Act 2004 (WA), s 62(3), s 87(1), s 87(2), s 105(13)
Result:
Report on Tribunal's findings of professional misconduct made and transmitted to Supreme Court (full bench) with recommendation that the name of the practitioner be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008 (WA)
The practitioner is to pay the Legal Profession Complaints Committee's costs in terms of disbursements in the amount of $46,365.75 within four weeks of the Tribunal's order or within such further period as agreed by the Legal Profession Complaints Committee
Summary of Tribunal's decision:
The Tribunal previously found that a legal practitioner engaged in professional misconduct in relation to consent orders affecting a third party's interests made by the Family Court of Western Australia in proceedings between the practitioner and his former wife. The Tribunal had found that the practitioner had the intent and carried out a course of conduct to have the consent orders made by the Court and to have a property transferred by him to his former wife pursuant to the consent orders, in order to secure a home for his children with their mother, and also to defeat the third party's claim to specific performance in relation to the property. The Tribunal found that, in doing so, the practitioner engaged in professional misconduct by breaching fundamental duties of fairness, honesty and propriety, to the Court and to the third party, to notify the Court of the third party's interest and to notify the third party of the proposal to seek the consent orders.
The Tribunal also previously found that the practitioner engaged in professional misconduct by intentionally causing the Court to be misled that there was no third party who ought to be heard by the Court before orders were made in terms of the minute of agreed orders. In addition, the practitioner engaged in professional misconduct by failing to subsequently notify, or attempt to notify, the third party that the consent orders had been made, and the Court of the third party's interest after the orders had been made.
Finally, the Tribunal previously found that the practitioner engaged in unsatisfactory professional conduct by failing to respond adequately and within a reasonable time to the Legal Profession Complaints Committee's enquiries.
The Tribunal required the parties to file submissions in relation to penalty and costs and listed these issues for determination. The hearing in relation to penalty and costs was delayed because of an appeal in relation to other disciplinary findings against the practitioner.
The Tribunal determined that the appropriate professional disciplinary consequence of the practitioner's conduct in the circumstances of this case is to make and transmit a report on the Tribunal's findings that the practitioner engaged in professional misconduct to the Supreme Court (full bench) with a recommendation that the practitioner's name be removed from the Roll of Practitioners.
The Tribunal also determined that the practitioner should pay costs in terms of the disbursements incurred by the Legal Profession Complaints Committee in the proceeding in the amount of $46,365.75 within four weeks of the Tribunal's order or within such further period as agreed by the Committee.
Category: B
Representation:
Counsel:
Applicant : Ms PE Cahill SC with Ms PE Le Miere
Respondent : Ms LB Black
Solicitors:
Applicant : Law Complaints Officer
Respondent : Butcher Paull & Calder
Case(s) referred to in decision(s):
A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253
Australian Communications and Media Authority v TPG Internet Pty Ltd [2014] FCA 382
Australian Competition and Consumer Commission v Energy Australia Pty Ltd [2014] FCA 336
Australian Competition and Consumer Commission v Mandurvit Pty Ltd [2014] FCA 464
Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372; (2014) 305 ALR 323
Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32
Comcare v PVYW [2013] HCA 41; (2013) 88 ALJR 1; (2013) 303 ALR 1
Commissioner for Consumer Protection v Susilo [2014] WASC 50
Dixon v Legal Practice Board of Western Australia [2012] WASC 79
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Kennedy v Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJR 563
Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42 (S)
Legal Practitioners Complaints Committee v Dixon [2006] WASCA 27
Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211
Legal Practitioners Complaints Committee v Pepe [2009] WASC 39
Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37
Legal Profession Complaints Committee and Benari [2005] WASAT 213 (S)
Legal Profession Complaints Committee v Brickhill [2013] WASC 369
Legal Profession Complaints Committee v Segler [2014] WASC 159
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
Motor Vehicle Industry Board and Dawson [2006] WASAT 8
New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279
New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177
Phillips Fox (A Firm) v Westgold Resources NL & Ors [2000] WASCA 85
Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256
Stirling v Legal Services Commissioner [2013] VSCA 374
The Council of the Queensland Law Society Inc v Wright [2001] QCA 58
Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202
Background and submissions
1 On 12 March 2013, we found that, during the period 1 December 2004 to 15 March 2005, the respondent practitioner engaged in professional misconduct in four respects (grounds (a) - (d)) by:
(a) causing a minute of consent orders to be filed on behalf of his wife and himself in the Family Court of Western Australia for the transfer of property situated at [address redacted] (property) from [the practitioner] to his wife:
(i) in circumstances where [the practitioner] knew that a third party [Mr A] claimed, or may claim, rights as a third party purchaser, including a right to a transfer of the property to the third party;
(ii) without notifying, or attempt to notify [Mr A] of the fact that the minute of consent orders could or would be filed;
(iii) without notifying, or attempt to notify, the Family Court of Western Australia of the fact that [Mr A] claimed, or may claim, rights as a third party purchaser of the property;
(b) intentionally causing the Family Court of Western Australia to be misled that there was no third party who ought to be heard by the Court before orders were made in terms of the minute of consent orders;
(c) failing to notify, or attempt to notify, [Mr A] who, to the practitioner's knowledge wished to proceed with a contract to purchase the property, that orders had been made by the Family Court of Western Australia in terms of the minute of consent orders for the transfer of the property from [the practitioner] to [the practitioner's] wife;
(d) subsequent to orders being made by the Family Court of Western Australia in terms of the minute of consent orders, failing to notify, or attempt to notify, the Court that [Mr A] wished to proceed with a contract to purchase the property.
- (Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (conduct reasons) at [175]).
3 We made orders requiring the parties to file and exchange submissions in relation to penalty and costs and enabling the practitioner to file character references. The Committee filed its written submissions in relation to penalty and costs and the practitioner filed a number of character references and an affidavit deposing to him being unable to obtain character references from members of the judiciary before whom he had appeared. The hearing in relation to penalty and costs was then adjourned, on the practitioner's application, in consequence of a then pending appeal in relation to other disciplinary findings against the practitioner (discussed below).
4 Following the determination of the appeal in relation to the other disciplinary findings against the practitioner, the Committee filed supplementary written submissions and the practitioner filed an outline of his submissions on penalty and costs. At a hearing on 27 and 28 May 2014, the parties made further oral submissions in relation to penalty and costs.
5 The Committee seeks a 'global' penalty in respect of the Tribunal's findings of professional misconduct in the form of an order that a report be made and transmitted to the Supreme Court (full bench) with a recommendation that the name of the practitioner be removed from the roll of practitioners under s 438(2)(a) and s 438(4)(b) of the Legal Profession Act 2008 (WA) (LP Act). The Committee does not seek a separate penalty in respect of the finding of unsatisfactory professional conduct unless the Tribunal does not make and transmit a report to the Supreme Court (full bench), in which case the Committee seeks an order for payment of a fine of $8,000. The Committee also seeks an order for the payment by the practitioner of its costs in terms of disbursements of the proceeding in the amount of $51,517.50.
6 The practitioner also contends that a 'global penalty' is appropriate. However, he submits that the penalty should be a fine of $10,000 (or no more than $20,000), or alternatively an order that he not be granted a practising certificate for a period of three months. He also seeks a 50% reduction in the costs claimed by the Committee.
Barbaro v The Queen
7 Following the hearing in relation to penalty and costs, the Committee raised the issue whether the decision of the High Court of Australia in Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372; (2014) 305 ALR 323 (Barbaro) may have relevance to our decision on penalty. We subsequently made orders inviting the parties to make written submissions on that question. Both parties did so.
8 In Barbaro, the sentencing judge had refused to hear submissions from the Crown on an appropriate range of sentences to be imposed. Special leave to appeal was sought from the High Court. This was granted, but the appeal was dismissed. The majority judgment of the Court (French CJ, Hayne, Kiefel and Bell JJ) held that in criminal proceedings the prosecution is not required nor permitted to submit to the sentencing judge its view as to the specific result which should be reached or the bounds of the range of sentences which might be imposed on the offender (at [7], [39]). The reasons included that any such submission by the prosecution is not a submission of law; that it is a conclusion in that it rests on unstated assumptions and assumed facts; and that it cannot be made by the prosecution dispassionately by reason of the nature of its role in criminal proceedings. The majority said at [7]:
The prosecution's statement of what are the bounds of the available range of sentences is a statement of opinion. Its expression advances no proposition of law or fact which a sentencing judge may properly take into account in finding the relevant facts, deciding the applicable principles of law or applying those principles to those facts to yield the sentence to be imposed.
9 The Committee contends that it is in a 'substantively different position from a criminal prosecutor in relation to the issue of penalty' and has referred to decisions of the Federal Court of Australia which supports the view that Barbaro does not apply to the imposition of penalties in civil proceedings. These cases follow Australian Competition and Consumer Commission v Energy Australia Pty Ltd [2014] FCA 336 where the Federal Court considered the issue at some length and concluded that Barbaro does not prohibit the practice of regulators in civil penalty proceedings making a submission about the appropriate range of penalties. The reasons which Middleton J relied upon included first, that the statutory context for a criminal prosecution is different from that for a civil penalty proceeding; second, his Honour had received submissions of law and an agreed statement of facts which went beyond the mere bare expression of opinion by a prosecutor; and third, the High Court had not addressed the question of whether its reasons extended to such civil proceedings and there was binding Federal Court authority which supported the practice of civil regulators making submissions as to penalty. (We mention, with respect, that the second reason does not appear to be persuasive given the High Court's view in Barbaro at [35], that even if the assumptions and conclusions supporting the sentence sought are exposed, the submission as to that sentence remains impermissible).
10 The practitioner contends that, by analogy, the Committee 'is a prosecutor and as such the law as set out in Barbaro applies.' He submits that the Committee's submissions on penalty in this matter 'exceeded the role of the prosecutor as outlined in Barbaro because the [Committee] strongly proposed a particular outcome.' The practitioner notes, however, that 'both parties have referred to the relevant authorities and sentencing principles.'
11 It is apparent that the statutory context in which the Tribunal makes findings of professional misconduct and imposes a penalty is different from the criminal context. As the Committee submits, its functions are different from that of a criminal prosecutor. The Committee has a range of statutory administrative, advisory, investigative, regulatory and enforcement functions. The constitution, powers, practices and procedures of the Tribunal in relation to vocational disciplinary proceedings are different from that of a criminal court. Furthermore, the objects of vocational disciplinary proceedings, which generally involve protection of the public in their dealings with members of the vocation, maintenance of proper standards in the vocation, and maintenance of the reputation of the vocation in the eyes of the community, are different to the objects of disciplinary proceedings, which generally involve punishment of the offender.
12 However, as the practitioner submits, in making an application before the Tribunal and seeking a finding of professional misconduct or unsatisfactory professional conduct and the imposition of a penalty, the Committee assumes a role which may be said to be analogous to that of a prosecutor. Furthermore, while the statutory framework is different, it remains that it is the Court in a criminal matter and the Tribunal (and the Supreme Court (full bench) where a report and recommendation for a strike off is made by the Tribunal) in a vocational disciplinary matter, which alone determines the appropriate penalty.
13 We accept that the words of a judgment articulating a principle are not to be applied in other cases as if they were an Act of Parliament, but rather having regard to the reasoning in support of that principle: Comcare v PVYW [2013] HCA 41; (2013) 88 ALJR 1; (2013) 303 ALR 1 at [15], cited in Australian Competition and Consumer Commission v Mandurvit Pty Ltd [2014] FCA 464, a decision adopting the reasoning of Middleton J. However, the reasoning underlying the High Court's conclusion in Barbaro (that is, as to unstated assumptions, assumed facts, lack of objectivity) would seem to apply equally to the case of the Committee making a submission as to penalty. In the circumstances, we have some difficulty in seeing how the different statutory context means that whereas a prosecutor's opinion as to the appropriate sentence advances no proposition of law or fact which a sentencing judge may properly take into account in finding the relevant facts, deciding the applicable principles of law or applying those principles to those facts, the Committee's submission to the Tribunal as to the appropriate penalty does contain such a proposition of law or fact which the Tribunal may properly take into account.
14 The resolution of the issue as to whether the prohibition on a prosecutor identified by the High Court in Barbaro applies to a vocational regulatory body in a vocational disciplinary proceeding should ideally be the subject of a determination of the Supreme Court. In the circumstances of this proceeding, it is not necessary for us to attempt to resolve the issue. Those circumstances are as follows.
15 It is apparent from the nature of our findings in the conduct reasons, including misleading the Family Court and unfairness to a third party, that the consequence of a report and recommendation to the Supreme Court (full bench) for the striking off of the practitioner from the roll was always going to be under consideration. Whether such a professional disciplinary consequence should follow from the conduct determination is a question entirely for the Tribunal taking into account all relevant circumstances. It follows that, irrespective of what submissions on penalty were made by the parties, the Tribunal would have undertaken the same consideration of whether to make a report and recommendation for a strike off.
16 Moreover, from a practical viewpoint, the parties' respective submissions on the appropriate penalty merely made explicit that which was implicit. That is, even had the Committee's submissions not specifically identified that it sought a strike off order, the relevant facts which it identified, the applicable principles of law which it advanced and the comparable cases it referred to, all pointed to that penalty. Equally, the practitioner's submissions on the facts, the law and comparable cases went to denying the appropriateness of a strike off order.
17 Recently, in Commissioner for Consumer Protection v Susilo [2014] WASC 50, Beech J held that it was unnecessary to determine whether Barbaro applied in that case, because the Commissioner's submission to the Court as to the range within which his Honour should fix the penalty did not influence his decision in any way - it was not a matter to which his Honour gave any weight in fixing the penalty. (See also Australian Communications and Media Authority v TPG Internet Pty Ltd [2014] FCA 382 at [93]). In the circumstances before us, the position rather is that in reaching our decision on penalty we have taken into account the parties' submissions to the extent they have identified relevant facts, principles and comparable cases. But in relation to the appropriate penalty (the 'ultimate issue') we have reached our own decision; one which we would have reached in any case without the benefit of the parties' submissions on the specific penalty.
'Global' approach to penalty
18 Whilst the imposition of separate penalties for each ground is the preferable course, there are circumstances in which a 'global' approach to penalty may be more appropriate in vocational disciplinary proceedings: Stirling v Legal Services Commissioner [2013] VSCA 374 (Stirling) at [72] [75]. This is such a case.
19 As revealed in the conduct reasons, the practitioner's professional misconduct formed part of a course of conduct over several months such that it is convenient to impose a global penalty in respect of the separate findings of professional misconduct, rather than seeking to impose separate penalties for each charge. That is the basis upon which the parties proceeded and it was also the course followed by the Tribunal when it imposed a penalty in respect of Ms B's conduct in relation to the consent orders and Mr A's interest. (In consequence of a nonpublication (suppression) order which the Tribunal made in the present proceeding under s 62(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal's penalty reasons in relation to Ms B is referred to in these reasons as B).
Relevant principles
20 The parties each made submissions in relation to the relevant principles governing when strike off is appropriate, the serious nature of findings involving honesty and integrity, and mitigation, aggravation and parity. Their submissions on the law may generally be accepted and are broadly as set out below. The differences between the parties were not as to the content of these principles, but rather as to their application.
21 A report and recommendation for a strike off order, as proposed by the Committee, would be appropriate where we regard the misconduct as so serious as to mean that the practitioner is permanently or indefinitely unfit to practise: New South Wales Bar Association v Cummins[2001] NSWCA 284; (2001) 52 NSWLR 279 at [26] - [28]. In assessing the appropriate disciplinary consequence of the practitioner's conduct, other remedies which we must consider include suspension of the practitioner's local practising certificate (s 439(a) of the LP Act) or (more appropriately here, as the practitioner does not have a current practising certificate) that a local practising certificate not be granted to the practitioner (s 439(b) of the LP Act) / not be applied for (s 441(m) of the LP Act) before a certain time, that conditions be placed on his practising certificate (s 439(c) of the LP Act), that the practitioner be reprimanded (s 439(d) of the LP Act), or that he pay a fine of up to $25,000 to the Legal Practice Board (s 441(a) of the LP Act) (see orders specified in s 439, s 440 and s 441 of the LP Act). Those were penalties also available under the Legal Practice Act 2003 (WA) which was current at the time the misconduct occurred. The Committee concedes, correctly in our view, that the practitioner could not be liable to a greater penalty under the LP Act than was available under the earlier Act.
22 The relevant principles in this type of case were set out by the Supreme Court (full bench) in Legal Profession Complaints Committee v Brickhill [2013] WASC 369 at [18] - [21] as follows:
The principles to be applied in an application of this kind are well established. 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: Re Maraj (a legal practitioner) (1995) 15 WAR 12, 25 (Malcolm CJ, Kennedy and Franklyn JJ agreeing); Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279, 286 (Dixon CJ, McTiernan, Fullagar and Kitto JJ agreeing); Legal Profession Complaints Committee v Masten [2011] WASC 71 [16] (Martin CJ, Murray and EM Heenan JJ); Legal Profession Complaints Committee v Brennan [2010] WASC 198 [10] (Martin CJ, Murray and Hall JJ agreeing); Legal Profession Complaints Committee v Fitzpatrick [2011] WASC 320 [43] (Martin CJ, EM Heenan and Jenkins JJ).
Where the motion is to remove a practitioner from the Roll, the critical question for the court is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner: Ziems (297298); A Solicitor v The Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 [15] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ); Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 [43] (Steytler P, Wheeler JA and Newnes J). Fitness to practice [sic] law requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges: In re Davis [1947] HCA 53; (1947) 75 CLR 409, 420 (Dixon J); Legal Practitioners Complaints Committee v Thorpe [43] (Steytler P, Wheeler JA and Newnes J); Legal Profession Complaints Committee v Brennan [11] (Martin CJ, Murray and Hall JJ agreeing).
Striking off is an order reserved for very serious cases, where the character and conduct of the practitioner is seen to be 'inconsistent with the privileges of further practice': Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 [38] (Thomas JA, McMurdo P and White J agreeing).
Integrity and honesty are essential characteristics expected of a practitioner, and therefore, the court has generally taken a very serious approach when dealing with dishonesty by a practitioner: Brennan [15]; Legal Profession Complaints Committee v Bachmann [2011] WASC 309 [47] (Martin CJ, EM Heenan and Jenkins JJ); Legal Practitioners Complaints Committee v Palumbo [2005] WASCA 129 [22][23] (Steytler P, Wheeler and McLure JJA agreeing); Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 [69] (Parker J); Re Maraj (25) (Malcolm CJ, Kennedy and Franklyn JJ agreeing). In Barristers' Board v Darveniza, Thomas JA observed that:
[T]he quality most likely to result in striking off 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 which he or she practices [33].
The critical question is, therefore, whether [the practitioner] is a fit and proper person to be a legal practitioner. That question is to be decided at the time of the hearing not at the time the conduct was engaged in[.]
24 The practitioner submits also that, in determining the appropriate penalty, care needs to be taken that the penalty reflects the matters with which the practitioner is charged and not other conduct including the defence of the action by the practitioner which is ultimately held to be unsuccessful: Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 (Smith) at 267 - 268 and 271 - 272. That principle may generally be accepted, but it is subject to this qualification expressed by Ipp JA in Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32 at [108] - [109]:
The relevant time for determining the fitness of a practitioner to practise is the time of the determination by the disciplinary body seized with the question: cf A Solicitor v The Law Society of New South Wales [2004] HCA 1; (2004) 204 ALR 8. The misconduct charged will have taken place before the decision is made; there will inevitably be a gap between the date of the misconduct and the date of the determination. It will not be unusual for the practitioner concerned to submit that circumstances have changed since the misconduct charged; arguments as to remorse, reform, character change and subsequent good deeds are not uncommon. The practitioner's conduct of the defence and the veracity and candour of his or her testimony will often be the best evidence as to whether these mitigating circumstances are to be accepted.
25 As we understand the position, the principle in Smithdoes not preclude the Tribunal's consideration of matters relevant to the practitioner's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness. Both parties made submissions on this premise.
Strike off as against suspension
26 The Committee refers in this context to the decision in Legal Practitioners Complaints Committee v Pepe [2009] WASC 39. This passage appears at [12]:
Where the choice presented is, as in this case, effectively between suspension and striking off, useful guidance can be obtained from the judgment of Thomas JA, McMurdo P and White J agreeing, in Barristers' Board v Darveniza [2000] QCA 253; (2000) 12 A Crim R 438 at 446 447 [38]:
Striking off is of course reserved for the very serious cases where the character and conduct of the practitioner is seen to be inconsistent with the privileges of further practice. Suspension is a less serious result, firstly because a limited period is specified and secondly because the right to resume practice is then preserved without any further onus upon the practitioner to prove that he or she is now a fit and proper person to practice [sic].
The proper use of suspension is, in my opinion, for those cases in which a legal practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner. (InRe A Practitioner (1984) 36 SASR 590 at 593 per King CJ.)
Unfairness/dishonesty
28 In the conduct reasons at [148], we made reference to Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 which concerned a case where a practitioner had intentionally misled the Court. The Court of Appeal there referred to a passage in The Council of the Queensland Law Society Inc v Wright [2001] QCA 58 where the lawyer's duty was described as including 'candour, honesty and fairness'. The Court of Appeal then observed at [70] that:
[I]t is a matter of the utmost seriousness for a practitioner intentionally to mislead a court. The effective administration of the justice system and public confidence in the system depends upon the absolute and unconditional discharge by practitioners of their duty of honesty and candour to the court. It is a duty so fundamental that factors such as the relative inexperience and lack of supervision do not weigh so heaving in mitigation as they might in other situations. A deliberate departure from the duty must attract a substantial penalty. …
29 The practitioner draws attention to the penalty imposed in that case. The Court held that the nature of the penalty must always depend upon the facts of the case. It said that it was not a case where the Tribunal could have concluded that only suspension would serve the objective of protection of the public, having regard to the practitioner's inexperience at the time, the fact that the events were now four years old, his otherwise unblemished record, the fact that he was now practising on his own account, and the fact that suspension would deprive the public of his services. It held that the penalty of three months suspension imposed by the Tribunal was appropriate.
30 We also referred in the conduct reasons to the decision in Legal Practitioners Complaints Committee v Dixon [2006] WASCA 27. There, as here, a practitioner acting in his personal capacity had misled the Family Court. In that case, the practitioner had failed to make full disclosure of his assets in an affidavit. In ordering that the practitioner's name be struck off the roll, the Court said at [10]:
This was therefore a case of a practitioner who must have known that he had a duty to disclose his ownership of funds which would have a material impact upon the orders to be made by the Family Court in respect of the property settlement and maintenance. The evidence amply supported the conclusion of very serious unprofessional conduct in failing to make the necessary disclosure by deliberately concealing the true position from his wife, who was the applicant before the Family Court, and, more importantly, from the Court itself. Further, the practitioner was guilty of illegal conduct in the form of perjury committed by the deliberately false statements made in his affidavits. That was a form of perjury which related directly to the practitioner's duty as an officer of the Court and to the integrity of the proceedings before the Court.
31 Mr Dixon was subsequently to make an application for readmission. In Dixon v Legal Practice Board of Western Australia [2012] WASC 79, the Court considered the leading authorities on the subject of fitness to practise in the context of striking off and readmission. It emphasised that the issue is not merely whether the practitioner was likely to reoffend, but the public interest in maintaining the reputation of the legal profession.
Insight, remorse
32 The Committee submits that a practitioner's failure to understand the impropriety of his or her conduct may be a factor of great importance in determining whether the practitioner should be permitted to stay on the roll, citing Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 at [35]. See also New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 184.
33 The recent decision in Segler is also important in this respect. The Supreme Court (full bench) said at [23]:
… [the practitioner's] perspective on his previous conduct, and on the breaches the subject of this application, reveal and reinforce his unfitness to practise.
34 Further, at [28]:
That submission [alleged improper conduct by a member of the Committee] demonstrates a concerning lack of insight on Mr Segler's part and reveals a significant failure to accept responsibility for the conduct the subject of adverse findings against him. His submissions which seek to justify or minimise the conduct the subject of [the] adverse findings raise the same concern. The attempt by Mr Segler through his submissions to minimise the seriousness of his conduct, and to suggest that at least some of the findings against him should not have been made, demonstrates a failure to appreciate the effect of section 444(1) of the LP Act [conclusiveness of SAT's findings of fact in a report to the Supreme Court] and indicates a failure on Mr Segler's part to accept responsibility for his actions.
Parity
35 An aspect of 'sentencing' principles in criminal law is that of parity; that is, that a similar penalty should be imposed on those guilty of the same or similar offences. The application of that principle in this case is important to the practitioner's submissions for reasons explained below.
36 The decision in Stirling at [63] - [67] supports the parties' submissions that sentencing principles, including the notion of parity, which evolved in the criminal law jurisdiction, apply with appropriate modifications to vocational disciplinary proceedings. This Tribunal has previously adopted this approach, but with the qualification that the pre-eminence of the object of protecting the public in disciplinary proceedings may serve as a distinction: Legal Practitioners Complaints Committee and Trowell[2009] WASAT 42 (S) at [18] - [21].
37 The 'parity principle' in sentencing was explained by Gibbs CJ in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 609 as follows:
It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.
38 The parity principle was further explained in Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [28] - [29] as follows (citations omitted):
Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice'. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.
General concepts of 'systematic fairness' and 'reasonable consistency' in sentencing, as an aspect of the administration of federal criminal justice, were discussed in Hili v The Queen. They apply to persons charged with similar offences arising out of unrelated events. The consistency they require is 'consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence.' That kind of general consistency is maintained by the decisions of intermediate courts of appeal. The consistency required by the parity principle is focussed on the particular case. It applies to the punishment of 'co-offenders', albeit the limits of that term have not been defined with precision.
39 More recently the High Court said in Barbaro at [41] (citations omitted):
As the plurality pointed out in Hili [v The Queen], in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect. …
Appropriate penalty
40 It is necessary to determine the appropriate penalty having regard to the foregoing principles as they apply to the particular circumstances of this case. The course we propose to follow is, firstly, to briefly examine, in turn, each of the grounds of professional misconduct as it impacts on the practitioner's fitness to practise, then to have regard to the factors which the parties say operate as aggravating or mitigating culpability, and finally, to address the issue of parity, having regard to the common background facts and the penalty imposed in B.
Ground (a) Causing consent orders to be filed without notifying, or attempting to notify, the third party or the Court
41 As we found in the conduct reasons at [141], it was essential to the achievement of the practitioner's relevant intention (as defined at [117] of the conduct reasons) that at the time the orders were made, the Family Court not know of Mr A's interest in the property and that Mr A not know of the application for, and the making of, the orders. In his conversation with Ms B on the day the Minute of Agreed Orders was filed (7 December 2004) the practitioner sought the filing of the Minute as soon as possible to 'deflect', that is, to defeat Mr A's anticipated claim for specific performance (conduct reasons at [86]).
42 As we have set out in the conduct reasons, the duty to notify a court asked to make orders by consent in settlement of a matter, of the interest of a third party who would be directly affected by the making of those orders, is no mere formality. It is an instance of the extent to which courts necessarily rely upon the understanding and integrity of legal practitioners in the effective administration of justice. The court will often not be in a position to know of the existence of outside parties who will or may be affected by its orders. The practitioners involved in seeking the exercise of the court's powers to make consent orders are under an overriding duty to the court to make full disclosure of persons who may be affected so that the court may make appropriate provision for them to be heard or otherwise protected. Even had the practitioner in this instance notified the third party directly of the proposed orders, the duty to notify the Court would have remained.
43 In the conduct reasons, we described the practitioner's conduct which breached this duty as 'professional misconduct' as the term is understood at common law; that is, as conduct which would reasonably be regarded as disgraceful or dishonourable by members of the profession of good repute and competence.
44 Although it was somewhat weakly contended on behalf of the practitioner that the terms of the Minute of Agreed Orders alerted the Court to the possible existence of a purchaser of the subject property, we dismissed that assertion as an entirely inadequate discharge of the practitioner's duty (conduct reasons at [114]). Further, at [120] - [131] of the conduct reasons, we rejected, for the reasons given, the practitioner's various arguments that he was not under an obligation in the described circumstances to notify the Court and the third party. These arguments included that practitioners in Western Australia were not under the duty to notify the Court (although they may have done so as a matter of practice), that the practitioner himself was ignorant of such a duty, that the practitioner was entitled to rely upon Ms B to make any necessary disclosure and that the duty rested on the wife as the party entitled to the benefit of the orders.
45 None of these arguments were to the credit of the practitioner and reflect poorly on his appreciation of his professional duties, given what we regard as a selfevident duty on a legal practitioner, in any jurisdiction, in seeking orders, to inform the court of the interests of any affected third party. Even in the absence of an express authority on point, a breach of this duty would be 'indicative of a failure either to understand or to practise the precepts of honesty or fair dealing in relation to the courts, his clients or the public.' (to quote Rich J in Kennedy v Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJR 563 referred to in the conduct reasons at [123]).
46 In her oral submissions on penalty, Ms Cahill SC for the Committee drew attention to a paragraph in the practitioner's submissions seeking to minimise the seriousness of the practitioner's conduct in this respect. The relevant paragraph reads:
It appears that errors in the joinder of parties are not uncommon. See for example Tiao v Lai [No2] [2010] WASCA 189 … .
47 Counsel's point is that such a submission demonstrates a failure on the part of the practitioner to comprehend the nature and seriousness of the duty in question. The issue was not one of an 'error' in 'joinder', but rather one of a deliberate decision to avoid disclosure of a third party known to be directly affected. Although Ms Black, counsel for the practitioner at the penalty hearing, sought to make clear that the practitioner did not seek to 'cavil' at the findings made, in our view this paragraph in the practitioner's submissions does exactly that. It does, moreover, seek to minimise the seriousness of the breach of duty as we have found it. To the extent that the submission is made on behalf of and, we must assume, with the knowledge and authority of the practitioner, it reflects poorly on his appreciation of the nature and seriousness of his misconduct.
48 The obligation to notify the third party in advance of the intended application to the Court exists alongside the corresponding duty to the Court. It existed as a duty to act fairly, honestly and with propriety and was owed both to the Family Court and to Mr A. As senior counsel for the Committee expressed the argument, members of the public are entitled to expect that legal practitioners will (consistently with their duties to the court and their clients) assist the public in the enforcement and protection of legal rights not act to deny those rights by the use of unfair, improper and dishonest means. As we explained in the conduct reasons, it is not a material consideration in this context that the practitioner was acting for himself. He had an overriding duty to the Court, whose processes he sought to invoke, and to the third party affected by those processes, to notify each of them.
Ground (b) Causing the Family Court to be misled
49 We have found that the practitioner, in signing the Minute of Agreed Orders with the relevant intention as we have described it, intentionally caused the Family Court to be misled that there was no third party who ought to be heard by the Court before the orders were made. It was that conduct (that being the material particular supporting this ground in the Committee's application), rather than the practitioner's knowledge of the terms of the letter (being a further particular relied upon by the Committee) that we found constituted the misleading conduct, for the reasons we explained at [145] - [146] of the conduct reasons.
50 We regard this ground, whilst based on essentially the same facts as for the previous ground, as reflecting a higher degree of culpability; that is, this was not a case where the practitioner through inadvertence or mistake failed to notify the Court of the third party's interests, but one where the practitioner in signing the Minute of Agreed Orders, aware and wanting them to be filed with the Court in order to deflect, that is, to defeat, specific performance by Mr A, positively sought to mislead the Court that no such third party existed, in order to defeat that third party's rights.
51 For reasons we have explained (conduct reasons at [144] - [153]), this was conduct of a very serious nature and one which we have also found would reasonably be regarded as disgraceful or dishonourable by legal practitioners of good repute and competence.
Ground (c) Failing to notify, or attempt to notify, the third party that orders had been made
52 As to the reasons why, after the making of the orders, the practitioner did not alert Mr A to the fact of their making, it is apparent that doing so would have defeated the practitioner's relevant intention as we have described it (conduct reasons at [117]). The practitioner's evidence that he did not contact Mr A to inform him (both before and) after the orders were made, because he regarded that as the duty of Mr B, was unconvincing and discreditable (conduct reasons [95]). We also found this conduct of the practitioner would reasonably be regarded as disgraceful or dishonourable by reputable and competent practitioners.
Ground (d) Failing to notify, or attempt to notify, the Court of the third party's interest after the orders had been made
53 Given the importance of the duty to notify the Court of the interests of any third party as we have described it, it was clearly the duty of the practitioner after the making of the orders to remedy the initial default by notifying the Family Court of Mr A's interests (conduct reasons at [156]). Contrary to the practitioner's submissions, there would clearly have been options open to the Court in those circumstances to have acted, or caused the parties to act, to protect the position of Mr A.
54 We again found that this was professional misconduct within the common law expression of that term (conduct reasons at [158]).
Fitness to continue in practice
55 It is apparent that the circumstances in which the practitioner's duties of honesty, fairness and propriety were breached and the categorisation of the conduct as disgraceful or dishonourable as outlined above raises the issue of the fitness of the practitioner to continue to practise.
Mitigating factors
56 The practitioner in his submissions has resisted the making of a report and recommendation for a strike off order sought by the Committee on a number of grounds. Some of these grounds are also considered under the issue of parity (below).
57 The practitioner has maintained that the circumstances of his separation from his wife in late 2003 and her institution of property settlement proceedings in early 2004 was 'the start of a period of significant stress and anxiety for [him]', in particular concerning his children's welfare (practitioner's written submissions, paragraph 25). In support of this submission, reference is made in particular to an affidavit of Ms B sworn 23 November 2011 at paragraph 19 and to a series of emails (Exhibits 7 and 15A). Ms Black also submits that it is to be implied from the circumstances of the practitioner's separation from his wife and the Family Court proceedings that this would be so. Moreover, it is contended that during the relevant period the practitioner 'was very busy with his legal work, the income from which was required to support his family and the mortgages of the properties owned by him and his wife' (practitioner's written submissions, paragraph 30, and the evidence referred to there).
58 The documentary evidence relied on in support of these submissions is inconclusive. Neither at the conduct hearing (note the finding at [132] of the conduct reasons) nor at the penalty hearing did the practitioner provide affidavit or oral evidence in support. In consequence, the documents relied upon, most of which are from the practitioner himself and many of which may be regarded as self-serving, are untested. We have no basis to judge whether, outside the relevant period, the practitioner was stressed and busy. However, we are prepared to assume, in his favour, for the purposes of penalty, that the general assertions made, that he was stressed and busy at the relevant time, are established. Whilst we take these assertions into account in the mix of factors going to penalty, for the reasons which follow, we do not regard them as persuasive.
59 It is in the nature of the work of a legal practitioner that a practitioner will be busy and very often under stress. That could hardly be regarded as a basis to excuse the practitioner's professional obligations.
60 Moreover, as senior counsel for the Committee submitted, there is no evidence as to how the stress which the practitioner was said to be under, or how his busyness, acted to impair his judgment during the critical period. Ms Black's assertion that the practitioner's judgment was 'clouded' by concerns for his children's welfare was not supported by any evidence.
61 Furthermore, and significantly in the circumstances of this case, the stress which the practitioner was allegedly under during the critical period (November and December 2004) was largely of his own making. As we have found, on 14 November 2004, the practitioner entered into a contract to sell the property to Mr A. On 30 November 2004, the proposal was made that the subject property be transferred to his wife. Even assuming the proposal was made by his wife, rather than emanating from the practitioner (as to which the evidence is conflicting see conduct reasons at [44]), the obvious response from the practitioner ought to have been to the effect:
I cannot agree to that proposal because I have agreed to sell the property to Mr A. The best I can do is to see if he will agree to a mutual termination of the contract. If that is successful, then I can then agree to the proposal to transfer the property to my wife. But unless and until he does so, I cannot agree to it.
62 For the practitioner to have sought and failed to have Mr A withdraw from the contract, then to have signed the Minute of Agreed Orders, including the transfer of the property to his former wife, and then urged Ms B to file it as soon as possible, was (aside from the ethical implications) inevitably to lead him into conflict with Mr A and significantly add to the practitioner's 'stress' and 'busyness'.
63 In this context, it is also to be noted that there is no evidence that it was only the subject property which was suitable for the practitioner's wife and children, as opposed to the property that the wife was then living in or one of the other properties that the parties owned. At the commencement of the Family Court proceeding, the wife was living in another of the parties' properties. The wife had subsequently proposed that the practitioner retain the subject property (conduct reasons at [37]). As late as 3 December 2004, the parties were discussing alternatives to the transfer of the subject property (conduct reasons at [69] - [71]).
64 The practitioner's related submission, one at the forefront of his counsel's submissions, was that in pursuing the course he did, the practitioner 'was not seeking to obtain a personal advantage' (practitioner's written submissions, paragraph 65); that is, because he was acting to provide a stable home for his former wife and their children. One answer to that is he might have done so in ways which did not cause such serious breaches of his professional duties. But we do not accept the starting premise for the reasons set out in the conduct reasons at [131]; that is, it was in the practitioner's personal interest to settle the property proceeding and to secure a home for his children with their mother.
65 The practitioner has also drawn attention to 'severe financial setbacks' arising from legal costs, a separation, absence from the profession and providing financially for his children.
66 Again, no evidence is provided by or on behalf of the practitioner as to the nature and extent of these expenses.
67 It is apparent that part of the legal costs sustained by the practitioner or ordered to be paid to the Committee were incurred in the numerous applications made by the practitioner in the course of this proceeding and which were unsuccessful. Other costs which the practitioner incurred, or has been ordered to pay, arose from his failure to comply with orders made or the obligations of a party to legal proceedings (most recently, his failure to identify the evidentiary basis for factual submissions on penalty, notwithstanding an early request from the Committee that he do so). The practitioner incurred the main costs of defending the application as a matter of election. Importantly, in that respect, the breaches of duty we have identified in the conduct reasons were not of an obscure or technical nature, but were fundamental to the role of a legal practitioner. In resisting the findings sought based upon breaches of these duties, particularly after the breaches had been identified both by the Committee and by this Tribunal in B, the practitioner was always at risk as to costs.
121 The practitioner also maintains in this context that the Committee's case was 'presented in an unclear way, and the pleadings were amended in the first day despite objection which caused unnecessary costs and work for the Respondent; see paragraphs 20 and 21 of the Reasons for Decision.' The amendment referred to was only to allocate certain dates to charges (a) - (d) and other dates to charge (e). This did not affect the practitioner's defence and we would not allow any discount in this respect. Although the practitioner has not clearly identified the point, we accept that additional work was made necessary because the Committee did not identify at the outset that the professional misconduct was confined to that arising at 'common law', and did not encompass those specific statutory instances identified in s 403(1) of the LP Act (competence and diligence, not a fit and proper person); that is, the Committee initially proceeded on the basis of both the specific statutory instances of professional misconduct and the common law notion of professional misconduct. Moreover, the practitioner's then counsel made written submissions addressing those specific statutory grounds, which work was unnecessary. We would allow a small discount (5%) to the Committee's costs in this respect.
122 The practitioner has also claimed that a discount should be imposed because, in December 2011, the conduct hearing was adjourned at the request of the Committee. We do not consider that there should be any discount for this reason. On 2 September 2011, the originally scheduled conduct hearing dates of 7 and 8 September were vacated on the application of the practitioner (with the agreement of the Committee). On 9 December 2011, the rescheduled hearing dates of 13 and 14 December 2011 were vacated on the application of the Committee (over the objection of the practitioner, notwithstanding that the reason for the application was that senior counsel for the Committee, who had been involved in the matter for some time, was 'more or less totally incapacitated' because of a back injury (T:2.5; 09.12.11)). Given that each party had sought the vacation of one of the scheduled hearings and that it does not appear that the Committee's costs were increased as a result of the December 2011 adjournment, or that that the practitioner's costs were increased as a result, we do not think that a discount against the Committee's costs should be made on account of the adjournment.
123 In the circumstances, we will allow a total 10% discount to the Committee's costs. The practitioner should therefore pay the Committee's costs of this proceeding assessed in the sum of $46,365.75.
Orders
124 The Tribunal will make the following orders:
1. Pursuant to s 438(2)(a) of the Legal Profession Act 2008 (WA), a report be transmitted to the Supreme Court (full bench) on the Tribunal's findings that the respondent practitioner engaged in professional misconduct, with a recommendation, pursuant to s 438(4)(b) of the Legal Profession Act 2008, that the name of the practitioner be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008. The report comprises the Tribunal's reasons in Legal Profession Complaints Committee and A Legal Practitioner[2013] WASAT 37 and Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) and is to be transmitted with a copy of the exhibits and transcript of the proceeding.
2. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the respondent must pay to the applicant its costs of the proceeding in terms of disbursements in the amount of $46,365.75 within four weeks of the date of this order or within such further period as agreed by the applicant.
I certify that this and the preceding [124] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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