LEGAL PROFESSION COMPLAINTS COMMITTEE and A LEGAL PRACTITIONER
[2013] WASAT 37
•12 MARCH 2013 [REVISED 20 JUNE 2013]
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
MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MR J MANSVELD (MEMBER)
MR C EDMONDS SC (SENIOR SESSIONAL MEMBER)
HEARD: 6 AND 7 MARCH 2012 AND
17 JULY 2012 - FURTHER WRITTEN SUBMISSIONS FILED ON 15 AUGUST 2012 AND 4 SEPTEMBER 2012
DELIVERED : 12 MARCH 2013 [REVISED 20 JUNE 2013]
FILE NO/S: VR 183 of 2010
BETWEEN: LEGAL PROFESSION COMPLAINTS COMMITTEE
Applicant
AND
A LEGAL PRACTITIONER
Respondent
Catchwords:
Vocational regulation - Legal practitioners - Unsatisfactory professsional conduct - Professional misconduct - 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
Legislation:
Legal Practice Act 2003 (WA), s 3, s 164(1)(c)
Legal Profession Act 2008 (WA), s 3, s 402, s 403, s 403(1), s 403(1)(b), s 438(1)
State Administrative Tribunal Act 2004 (WA), s 62(3)
Result:
Findings of professional misconduct and unsatisfactory professional conduct
Summary of Tribunal's decision:
The Legal Profession Complaints Committee alleged 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, and in relation to responding to written enquiries of the Committee. The practitioner denied the allegations.
The practitioner had entered into a contract, which became unconditional, to sell a property to a third party. He subsequently signed a minute of agreed orders in which he sought an order of the Court requiring him to transfer the property to his former wife. The practitioner provided outstanding information to enable the minute of agreed orders to be completed and filed by his former wife's solicitor, and told his former wife's solicitor that he would like the minute of agreed orders filed as soon as possible to 'deflect' specific performance by the third party.
The Tribunal 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 the 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. 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 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 found that the practitioner engaged in unsatisfactory professional conduct by failing to respond adequately and within a reasonable time to the Committee's enquiries.
The Tribunal required the parties to file submissions in relation to penalty and costs and listed these issues for determination.
[The reasons for decision were revised prior to general publication on 20 June 2013 in accordance with a nonpublication order made under s 62(3) of the State Administrative Tribunal Act 2004 (WA).]
Category: B
Representation:
Counsel:
Applicant: Ms PE Cahill SC with Ms PE Le Miere
Respondent: Mr MF Rynne (until 23 July 2012) / Mr MJ Lourey (23 July 2012 to 27 August 2012) / Selfrepresented (from 27 August 2012)
Solicitors:
Applicant: Law Complaints Officer
Respondent: Chapmans Barristers and Solicitors (until 27 August 2012)
Case(s) referred to in decision(s):
AB v State of Western Australia & Anor [2011] HCA 42; (2011) 244 CLR 390; (2011) 281 ALR 694
Briginshaw v Briginshaw (1938) 60 CLR 336
Chamberlain v Law Society of the Australian Capital Territory (1993) 43 FCR 148
Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186
In the Marriage of Biltoft (1995) 19 Fam LR 82
Jimmy v R [2010] NSWCCA 60
Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJR 563
Legal Practitioners Complaints Committee and Richardson [2006] WASAT 251
Legal Practitioners Complaints Committee and Segler [2009] WASAT 205
Legal Profession Complaints Committee and Fitzpatrick [2011] WASAT 20
Legal Profession Complaints Committee and Segler [2010] WASAT 135
Legal Profession Complaints Committee and Skerritt [2012] WASAT 221
Official Trustee in Bankruptcy v Donovan & Stevens (No 2) (1996) 132 FLR 407; (1996) 20 Fam LR 802; (1996) FLC 92703
State of Victoria v Sutton [1998] HCA 56; (1998) 195 CLR 291
Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The Legal Profession Complaints Committee alleges that a legal practitioner engaged in professional misconduct in four respects relating to consent orders affecting a third party made by the Family Court of Western Australia in proceedings between the practitioner and his former wife for an alteration of their property interests. In particular, the Committee alleges that the practitioner engaged in professional misconduct, between about 1 December 2004 and 14 March 2005, by:
(a)causing, alternatively, permitting 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 (subject property) from the practitioner to his wife:
(i)in circumstances where the practitioner knew that Mr A, a third party, claimed, or may claim, rights as a third party purchaser, including a right to a transfer of the subject property to Mr A;
(ii)without notifying, or intending to notify, Mr A, of the fact that the minute of consent orders could or would be filed;
(iii)without notifying, or attempting to notify, the Family Court of Western Australia of the fact that a third party claimed, or may claim, rights as a third party purchaser of the subject property;
(b)intentionally, alternatively, recklessly causing or permitting the Family Court of Western Australia to be misled:
(i)as to the reasons why the practitioner and his wife sought to have orders made urgently by the Court in terms of the minute of consent orders;
(ii)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 subject 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 subject 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 a third party wished to proceed with a contract to purchase the subject property.
The Committee also alleges that the practitioner engaged in professional misconduct, between about 15 May 2006 and 10 August 2006, by:
(e)failing to respond adequately and within a reasonable time to written enquiries made of the practitioner by the Committee.
The practitioner denies each of these allegations of professional misconduct.
The determination of this matter was delayed because of various applications made by the practitioner to the Tribunal and to the Supreme Court of Western Australia: [citations redacted].
We will address each of the Committee's five grounds, after first referring to the applicable legal framework and principles, discussing the basis upon which the Committee contended that the practitioner is guilty of professional misconduct, and addressing certain jurisdictional submissions made by the practitioner.
Legal framework and principles
The Committee brought this proceeding against the practitioner pursuant to s 438(1) of the Legal Profession Act 2008 (WA) (LP Act). Section 438(1) of the LP Act confers jurisdiction upon the Tribunal to make a finding that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct. Section 442 of the LP Act provides that the Tribunal may find a person guilty of unsatisfactory professional conduct even though the referral by the Committee alleged professional misconduct.
Section 402 and s 403 of the LP Act provide inclusive definitions of the key concepts of 'unsatisfactory professional conduct' and 'professional misconduct'. Section 402 of the LP Act states as follows:
For the purposes of this Act -
"unsatisfactory professional conduct" includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
Section 403 of the LP Act states as follows:
(1)For the purposes of this Act -
"professional misconduct" includes
(a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(2)For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.
As the Tribunal held in Legal Practitioners Complaints Committee and Segler [2009] WASAT 205 (Segler) at [97], in relation to the definition of 'professional misconduct' in s 403 of the LP Act:
The use of the word 'includes' in the definition in s 403 of the 2008 Act suggests that (a) and (b) are intended to be examples of conduct which will constitute 'professional misconduct' and are not intended to be exhaustive of what constitutes 'professional misconduct': see DC Pearce and RS Geddes, Statutory Interpretation in Australia (6th ed, 2006) at 239 [6.56] and the cases cited therein. In that context, we view (a) and (b) as discrete examples of conduct which will constitute professional misconduct. …
Furthermore, as the Tribunal held in Legal Profession Complaints Committee and Caine [2010] WASAT 178 (Caine) at [10], [15] and [19]:
This situation [that the conduct and investigation occurred under the legislation prior to the commencement of the LP Act] is covered by the LP Act. By s 622, Part 13 of the LP Act (which provides for complaints and discipline) applies in relation to the conduct of legal practitioners whether the conduct occurred before or after the commencement day; and to conduct consisting of a contravention of the 1893 Act or the [Legal Practice Act 2003 (WA)] before the commencement of s 622, as if the conduct consisted of a contravention of the LP Act. The effect of that provision is that unprofessional conduct in the form proscribed under the earlier Acts is capable of constituting, and to the extent established must be categorised as, unsatisfactory professional conduct or professional misconduct under the LP Act.
…
The common law concept of 'unprofessional conduct' (sometimes expressed as 'professional misconduct', sometimes signifying more serious misconduct) is conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence; or that, to a substantial degree, falls short of the standard of professional conduct observed or approved by members of the profession of good repute and competence. See Kyle v Legal Practitioners' Complaints Committee (1999) 21 WAR 56 (Kyle) for a recent restatement and application of this notion in Western Australia, which is not to be treated as codified or exhaustive.
…
It cannot have been intended by the legislature that only conduct involving 'competence' (to do with skill, capacity and ability) and 'diligence' (to do with application to the task) should (in addition to conduct establishing unfitness to practice) fall for consideration and that other instances of unprofessional conduct (for example dishonesty or impropriety) which exist at common law should no longer constitute conduct covered under the LP Act. (Professional standards include but are not limited to consumer protection). So much follows as a matter of common sense and from the operation of s 622 as described above. Moreover, s 401 includes as the purposes of Part 13 'to promote and enforce the professional standards, competence and honesty of the legal profession'. … .
In Caine, the Tribunal referred, at [15], to the restatement of the common law concept of unprofessional conduct in Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 (Kyle). In Kyle, Parker J (with whom Ipp J, at [1], and Steytler J, at [22], agreed) held at [61] as follows:
… This Court has long accepted and applied, in this context, the understanding of the notion of unprofessional conduct which was expressed by the Full Court of the South Australian Supreme Court in Re a Practitioner of the Supreme Court [1927] SASR 58: see, eg, Re a Practitioner (unreported, Supreme Court, WA, Full Court, Library No 4989, 18 July 1983). It was usefully summarised (at 3) by the Full Court as conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence. The first limb of this summary includes, but is not confined to, conduct which occurs in the course of legal practice. The other limb necessarily relates to conduct in the course of legal practice because of the reference to 'professional conduct'. While the words should not be taken as necessarily an exhaustive or codified statement, the essence of the notion of unprofessional conduct is usefully revealed in these decisions.
Thus, in Caine, and subsequently in Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (in de Braekt), the Tribunal held that conduct which constitutes unprofessional conduct at common law can constitute unsatisfactory professional conduct or professional misconduct under the LP Act.
In Chamberlain v Law Society of the Australian Capital Territory (1993) 43 FCR 148 (Chamberlain) Lockhart J observed at 163 as follows:
It is well established … that unprofessional conduct on the part of a legal practitioner may extend to conduct in his private capacity.
In particular, a legal practitioner may be guilty of unsatisfactory professional conduct or professional misconduct when acting for themselves in legal proceedings. In Chamberlain, a legal practitioner was found guilty of professional misconduct in relation to the settlement of, and a consent judgment in, a proceeding brought against him in a personal capacity by the Deputy Commissioner of Taxation, where the practitioner knew that the amount claimed by the Deputy Commissioner was only 10% of the amount the practitioner owed in tax. While dissenting in the result, Jenkinson J aptly observed at 168 that:
Although the appellant was here the litigant, not the lawyer, the conduct impugned was in that sphere of activity in which the lawyer engages when he practises his profession.
In the circumstances of this case, although the practitioner generally practises in work injury and industrial law, and does not practise in the family law jurisdiction, he was representing himself in the proceedings for alteration of his and his wife's property interests in the Family Court of Western Australia. The practitioner's conduct which is the subject of consideration in this case was in the sphere of activity in which a practitioner engages to practise his or her profession. In particular, as the Committee, in effect, contended, and as we find below, the practitioner's conduct in respect of the consent orders and Mr A's interest involved the breach of fundamental duties which are binding upon legal practitioners, whether acting for a client or representing themselves in private litigation, namely duties of fairness, honesty and propriety, to the relevant court or tribunal and to affected third parties, to notify a third party whose rights or interests are, or may be, affected by proposed orders, of the proposal to seek those orders and the court or tribunal of the third party's interest, and the duty not to knowingly mislead a court or tribunal. As Mr MF Rynne of counsel, who appeared on behalf of the practitioner at the hearing, correctly and properly conceded on behalf of the practitioner in the course of oral submissions:
I think I have conceded, and I will adopt what senior counsel has stated, that, yes, you can be as incompetent as you like, if you are selfrepresenting, but there are certain standards as a legal practitioner that you have to maintain. …
If the assertion is solely one of propriety, in that you have misled the Court, it doesn't matter whether you're for yourself or for your client. You can't mislead the Court as a practitioner. …
[The duty to notify a third party of the filing of consent orders affecting the third party's interest is] a duty of fairness and if the practitioner carries that duty, it doesn't matter whether he is representing himself or not representing himself. (T:5.3, 5.5 and 5.5; 17.07.12).
Finally, we note that, although the civil standard of proof ('on a balance of probabilities') applies in disciplinary proceedings, because of the serious nature of allegations to be determined and the potential consequences of such proceedings on a person's lawful capacity to pursue their vocation, in accordance with the socalled Briginshaw approach, cogent evidence is required and the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts: Briginshaw v Briginshaw (1938) 60 CLR 336; [citation redacted].
The basis of the Committee's claim of professional misconduct against the practitioner
The Committee's grounds alleging that the practitioner was guilty of professional misconduct set out in the introduction above do not identify the statutory or common law basis of the claimed professional misconduct. At the commencement of her opening, we invited Ms PE Cahill SC, who appeared with Ms PE Le Miere on behalf of the Committee, to do so. Ms Cahill referred to both paras (a) and (b) of s 403(1) of the LP Act (which she correctly characterised as 'only an inclusive definition' (T:5.1, 6.3.12)) and to the common law concept of unprofessional conduct which was restated by the Full Court of the Supreme Court in Kyle. Ms Cahill said in opening that 'clearly the conduct in the grounds, if proved, comprises common law unprofessional conduct' (T:5.6, 6.3.12).
The Committee's written submissions did not refer to the types of professional misconduct stipulated in s 403(1) of the LP Act, but rather argued solely that the practitioner's conduct amounted to unprofessional conduct at common law, within the first limb of the restatement in Kyle, namely, 'conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence'. In the course of her oral submissions made on 17 July 2012, Ms Cahill also made it clear that the case against the practitioner was professional misconduct at common law, within the first limb of Kyle, and did not include either of the statutory inclusions of professional misconduct in paras (a) and (b) of s 403(1) of the LP Act.
In his original written submissions concerning 'the relevant legislation', the practitioner assumed that the Committee relied upon each of the instances of professional misconduct set out in s 403(1) of the LP Act. The practitioner made submissions on this assumption. The effect of the clarification of the Committee's position in its written and oral submissions was to substantially reduce the ambit of the practitioner's original written submissions on this subject.
That the Committee's position on this fundamental aspect of its case was not made entirely clear until its closing submissions was unsatisfactory. The Tribunal expects that, in the future, the Committee will clearly articulate the statutory or common law basis upon which it contends a finding of unsatisfactory professional conduct or professional misconduct should be made against a practitioner in its originating application or statement of issues, facts and contentions.
However, although the manner in which this issue was clarified caused the practitioner a degree of unnecessary work, the Committee did refer to the common law concept of unprofessional conduct in its opening, and there was no material prejudice to the practitioner.
Practitioner's submissions in relation to jurisdiction
Two aspects of the practitioner's original written submissions remain relevant in relation to the Tribunal's jurisdiction. First, as Mr Rynne pointed out, although the allegations of professional misconduct against the practitioner were referred to the Tribunal after the commencement of the LP Act on 1 March 2009, the impugned conduct occurred during the currency of the former Legal Practice Act 2003 (WA) (Legal Practice Act).
However, s 622 of the LP Act states that Pt 13, which relates to complaints and disciplinary matters against legal practitioners, applies in relation to their conduct 'whether the conduct occurred before or after the commencement day'. It has been recognised that, in order for conduct that occurred during the currency of the Legal Practice Act to constitute unsatisfactory professional conduct or professional misconduct under the LP Act, the conduct must have constituted 'unsatisfactory conduct' under the Legal Practice Act: Legal Profession Complaints Committee and Fitzpatrick [2011] WASAT 20 at [7]; Legal Profession Complaints Committee and Carlose [2012] WASAT 104 at [21].
The term 'unsatisfactory conduct' was defined in s 3 of the Legal Practice Act to include, among other things:
unprofessional conduct on the part of a legal practitioner, whether occurring before or after admission as a legal practitioner;
The term 'unprofessional conduct' was not defined in the Legal Practice Act, but, as noted earlier, has a well established meaning at common law, as restated in Kyle prior to the commencement of the Legal Practice Act. As the High Court of Australia said in AB v State of Western Australia & Anor [2011] HCA 42; (2011) 244 CLR 390; (2011) 281 ALR 694 at [10] (footnotes omitted):
What is comprehended by [a legislative provision] falls to be determined by construing its terms in the context of the [legislation] as a whole and by reference to its evident purposes. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ referred to the importance of the context, general purpose, policy and fairness of a statutory provision, as guides to its meaning. The modern approach to statutory interpretation uses 'context' in its widest sense, to include the existing state of the law and the mischief to which the legislation is addressed. Judicial decisions which preceded the [legislation] may be relevant in this sense, but the task remains one of the construction of the [legislation].
Thus, if the practitioner's conduct the subject of this proceeding constitutes unprofessional conduct at common law, within the first limb of Kyle, which we find below that it does, then it constitutes 'unprofessional conduct' under the Legal Practice Act, understood in the context of the existing state of the law prior to that Act, as established by judicial decisions including Kyle and, therefore, 'unsatisfactory conduct' under the Legal Practice Act. Because the statutory definition of professional misconduct under s 403 of the LP Act allows for the continued application of the common law concept of unprofessional conduct, and because of the transitional provisions noted above, the Tribunal has jurisdiction to find the practitioner guilty of unsatisfactory professional conduct or professional misconduct under the LP Act, even though the conduct occurred prior to the commencement of that Act. This is the basis upon which the Committee proceeded in this case and was not seriously disputed by the practitioner.
Second, Mr Rynne, referring to a passage in the Tribunal's decision in Caine at [26], submitted that 'by reference to Caine no particulars of professional conduct rules or practice have been outlined as supporting the complaints despite the Application being amended and tendered at the conclusion of the evidence'. The passage from Caine referred to by Mr Rynne is as follows:
Under the new statutory regime, the Tribunal will be required to make findings as to: the nature of the charge made and the evidence in support, the relevant professional conduct rules or practice governing the matter, the extent to which there has been a departure from those rules or that practice, and whether in all of the circumstances including as necessary by reference to the common law concept of unprofessional conduct, the practitioner's conduct may be said to constitute unsatisfactory professional conduct or professional misconduct.
Mr Rynne's submission assumes importance in the context of a submission he made, which is addressed below, that the practitioner was not under any duty to notify Mr A of the proposed consent orders, because there was no statutory requirement, or written rule or practise, requiring him to do so. The short answer to the submission about the absence of particulars of professional conduct rules or practise in relation to notification of third parties is that it is clear, including from the decision in Caine, that a finding of professional misconduct is not dependant upon the existence of or a departure from a specified rule or practise. It can be based, as in this case, on conduct within the first limb of the common law concept of unprofessional conduct (historically, professional misconduct), as restated in Kyle, namely 'conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence'. The substantive answer to the submission is that, as discussed below, the duties upon a legal practitioner, whether representing a client or conducting proceedings for themselves, of fairness, honesty and propriety in relation to third parties, including the duty to notify a third party whose rights or interests are, or may be, affected by proposed orders, and the court or tribunal of the third party's interest, and not to mislead a court or tribunal, are so fundamental and selfevident for the proper conduct of a legal practitioner, that it is unnecessary for them to be recorded in a written rule or practise in order to be binding on members of the profession. Finally, the practitioner's conduct in relation to each of grounds (a)(d) may be described as a breach of the Law Society of WA Professional Conduct Rules in force at the end of 2004. Rule 3.1 provided: 'A practitioner shall not attempt to further his client's case by unfair or dishonest means.' The case is all the stronger when it is the practitioner's own case which he is seeking to advance by such means. (We should record that this rule was not referred to by the Committee.)
In his supplementary written submissions, the practitioner made two further substantive arguments in relation to jurisdiction. First, the practitioner submitted that 'there is still serious doubt, in light of s 3 of the [LP Act], as to whether the common law test [ie. the common law concept of unprofessional conduct] is still applicable, or whether s 402 and s 403 [of the LP Act] are the only choices available for the [Committee]'. The practitioner submitted that this is the case because it is possible to construe the word 'includes' in s 403(1) of the LP Act as being exhaustive, and there is no decision of the Court of Appeal on the issue, with the only decision of the Tribunal suggesting the continued applicability of the common law concept of unprofessional conduct being Caine.
However, the practitioner's first argument cannot stand, given the clear wording of s 403 of the LP Act ('"professional misconduct" includes …') and the case law. Although there is no decision of the Court of Appeal directly on point, the Tribunal has, in a number of decisions including Segler, Caine and in de Braekt, held that, on its proper interpretation, s 403(1) of the LP Act is not an exhaustive statement of what constitutes 'professional misconduct' under the Act, but rather sets out in paras (a) and (b) of that subsection what the legislature has declared to fall within the statutory term. The fact that the term 'professional misconduct' is defined in s 3 of the LP Act as having 'the meaning given in section 403' does not cast any doubt on the correctness of this interpretation. The meaning of the term 'professional misconduct' given in s 403 of the LP Act is inclusive, rather than exhaustive. Moreover, as was explained in Caine at [19], in terms endorsed in in de Braekt at [22]:
It cannot have been intended by the legislature that only conduct involving "competence" (to do with skill, capacity and ability) and "diligence" (to do with application to the task) should (in addition to conduct establishing unfitness to practise) fall for consideration and that other instances of unprofessional conduct (for example, dishonesty or impropriety) which exist at common law should no longer constitute conduct covered by the LP Act.
Second, the practitioner argued that, because the Committee classified his conduct as not occurring in connection with the practice of law, it could not rely on para (a) of s 403(1) of the LP Act, and therefore had to rely on para (b) of that subsection. The practitioner submitted that it was 'impermissible' for the Committee to rely on para (b) 'on parity principles', having regard to its earlier referral of a professional disciplinary matter to the Tribunal against Ms B, the practitioner's former wife's solicitor in the Family Court of Western Australia proceedings. In that case, the Committee sought, and the Tribunal made, a finding of professional misconduct against Ms B under para (a) of s 403(1) of the LP Act: [citation redacted].
The practitioner submitted that, as Ms B 'had control of the process' in relation to the consent orders and the third party, it is impermissible, on parity principles, for the Committee to ask the Tribunal to apply a more stringent test under s 403(1)(b) of the LP Act than it sought to be applied to Ms B. Further, the practitioner submitted that, if the common law concept of unprofessional conduct continues to apply under the LP Act, it is, similarly, impermissible, on parity principles, for the Committee to seek a finding of professional misconduct on the basis of unprofessional conduct at common law, given its approach in the case against Ms B.
However, ultimately, in this case, the Committee did not rely on either para (a) or para (b) of s 403(1) of the LP Act, but rather solely on the common law concept of unprofessional conduct (specifically, professional misconduct under the first limb of Kyle), which for reasons explained above continues to apply under s 403(1) of the LP Act.
We acknowledge that the Committee's case, and the Tribunal's finding, in [the disciplinary proceeding against Ms B] was based on professional misconduct in terms of para (a) of s 403(1) of the LP Act, which is concerned with competence and diligence, rather than propriety. However, neither the Committee nor the Tribunal is bound to approach the case against the practitioner in the same way as the case against Ms B. Although 'parity principles' may, in certain circumstances, be relevant in relation to the determination of penalty in professional disciplinary proceedings, they do not apply in relation to the basis upon which an allegation of unsatisfactory professional conduct or professional misconduct can be alleged, argued or determined; cf. Jimmy v R [2010] NSWCCA 60 at [267] where Rothman J said, in relation to 'parity of charging' in criminal law, that 'it is for the prosecuting authority, alone, to exercise the discretion as to the charge to be preferred'.
Grounds (a) (d) - The consent orders and Mr A's interest The facts
The practitioner was admitted to legal practice in Western Australia in December 1998 and, at all relevant times, held a current practising certificate under the Legal Practice Act. In March 2004, the practitioner's former wife (wife) commenced proceedings in the Family Court of Western Australia against the practitioner for an alteration of their property interests (Family Court proceedings). Between March 2004 and the end of February 2005, the wife was represented in the Family Court proceedings by Ms B, then a solicitor employed a firm. Both Ms B and the firm by which she was employed were accredited specialists in family law. As noted earlier, the practitioner represented himself in the Family Court proceedings. As also noted earlier, the practitioner did not practise in the family law jurisdiction.
At the time when the Family Court proceedings were commenced, the practitioner and his former wife owned two properties jointly. At all relevant times, the practitioner was the sole registered proprietor of the subject property. At some point after the commencement of the Family Court proceedings, the practitioner, with the wife's knowledge, put the subject property on the market through Ross & Galloway Real Estate Agents in order to pay out the debts of the practitioner and the wife. The wife subsequently learned of the marketing of the subject property.
In November 2004, on instructions from the wife, Ms B caused an Offer to Settle to be filed in the Family Court proceedings proposing that the wife would receive the practitioner's interest in one jointly owned property, the practitioner would receive the wife's interest in the second jointly owned property, and the practitioner would retain the subject property.
On 13 November 2004, Mr A made an offer to purchase the subject property for $345,000 and signed a contract for the sale and purchase of the property. On 14 November 2004, the practitioner accepted Mr A's offer and signed the contract. The contract required Mr A to pay a deposit of $5,000 within seven days. It also nominated the settlement date for the sale of the land to be 'on or before 30 days of acceptance'.
The practitioner nominated Ventor Settlements as his representative settlement agent for the sale of the subject property in the contract. Ventor Settlements wrote to the practitioner on 18 November 2004, referring to the contract, noting that 'settlement is anticipated for the 15 December 2004' (although, in later correspondence, the settlement date is referred to as 14 December 2004), and enclosing and requesting the practitioner to sign and return a document appointing Ventor Settlements to act on the sale of the subject property to Mr A. The practitioner signed the document appointing Ventor Settlements as his settlement agent on 20 November 2004.
Mr A paid the deposit of $5,000 on 22 November 2004 and the contract for the sale of the subject property by the practitioner to him became unconditional at that time. Under crossexamination, the practitioner conceded that, when the contract became unconditional, he knew that he 'had to sell [the subject property] to [Mr A]' and that 'there was no choice' (T:22.8, 7.3.12). The practitioner also conceded that he knew, at the time, that, if, for some reason, he did not proceed with the contract, an action for specific performance 'was a definite remedy [Mr A] would have had' (T:23.1, 7.3.12) and that a claim for damages by Mr A for breach of contract was a 'secondary remedy' available 'in certain circumstances' (T:24.2, 7.3.12).
On or about 22 November 2004, the wife, who had learned of the sale of the subject property, told Ms B that the property had been sold. As a result, Ms B, on 25 November 2004, caused a caveat to be lodged over the subject property on behalf of the wife asserting that she had a caveatable interest. In her letter dated 24 November 2004 to the practitioner advising him of the wife's instructions to lodge a caveat, Ms B said the following:
Our client has no wish to prejudice or delay settlement of the sale of the property. However, she does need to be kept informed as to the settlement and the disposal of proceeds of sale.
The caveat was registered on 26 November 2004.
On 29 November 2004, Ventor Settlements sent the transfer for the subject property to the practitioner for him to sign.
Ms B arranged an informal conference with the wife and the practitioner at Ms B's office on 30 November 2004. At that conference, a proposal was made that the wife would receive the subject property, subject to the mortgage over that property, as part of the resolution of the Family Court proceedings. There is a conflict of evidence between the practitioner and the wife, on the one hand, and Ms B, on the other hand, as to whether the offer came from the wife or the practitioner. The wife and the practitioner said that the proposal was made by the wife, whereas Ms B said that it was made by the practitioner. The wife gave evidence by her witness statement (which was admitted without a requirement that she be called for crossexamination) that 'the change in my position [of now wanting to receive the subject property] took [the practitioner] by surprise at this meeting'. Ms B was crossexamined about this and gave evidence that 'I remember it as being [the practitioner's] proposal because I do remember that catching me by surprise' (T: 94.8, 6.3.12). When she was told by Mr Rynne that the wife would say in evidence that she had proposed to receive the subject property at the conference, Ms B said that 'would be different to my recollection' (T:94.9, 6.3.12). It appears to us that there is a genuine difference in recollection on this point between the wife and the practitioner, and Ms B, but it is unnecessary to determine which recollection is correct, and nothing substantive turns on it.
During the informal conference on 30 November 2004, Ms B asked the practitioner about the contract he had entered into for the sale of the subject property. The practitioner gave evidence that he confirmed that the offer and acceptance had been signed. Ms B gave evidence that the practitioner told her that there was a clause in the contract that would enable him to get out of the contract and that, at worst, he may have to pay some damages to the purchaser. The practitioner's evidence was different, stating that, at the end of the informal conference, he indicated that he would check to see if there was a 'get out clause'. However, nothing turns on this difference.
Ms B said that it was agreed that any settlement would provide that the practitioner would pay any damages claimed by the purchaser as a result of the contract not proceeding. The practitioner did not dispute this evidence, which we accept, and, as discussed below, on the next day, signed the Memorandum of Agreed Orders which proposed an order that he indemnify the wife with respect to any damages or liabilities arising from the offer and acceptance with respect to the subject property. Ms B gave evidence, which was not disputed and which we accept, that at the conclusion of the informal conference, the practitioner said that he would go and see Mr A and ask him to release him from the sale.
Ms B also gave evidence, which was not disputed and which we accept, that at the informal conference it was agreed that she would draft a minute of orders, which was referred to in her contemporaneous handwritten note as 'MAO', meaning Memorandum of Agreed Orders, for discussion.
Ms B gave evidence that later on 30 November 2004, the practitioner telephoned her and asked her about the Capital Gains Tax position in respect of the subject property. Ms B made a contemporaneous, short, handwritten note of their telephone conversation. This evidence was not disputed and we accept it.
The practitioner went to see Mr A at around 9 or 9.30 pm on 30 November 2004. Both Mr A and the practitioner gave evidence, in effect, that the practitioner asked Mr A not to proceed with the purchase of the subject property. However, their evidence was quite different as to what Mr A said in response to the practitioner's request.
The practitioner gave the following evidence in his witness statement, which stood as his evidenceinchief:
[Mr A] was very sympathetic towards my situation and he expressed the view that the conduct of my wife's solicitors was highly unfair to me. At no stage did Mr [A] formally agree to release me from the sale, but I was left with the very clear impression from our meeting that Mr [A] would seriously consider my proposal to release me from the contract. I made it clear to Mr [A] that if my wife wished to proceed with the transfer of the property to her, then I could not proceed with the sale, but would financially compensate him.
The practitioner gave the following evidence about Mr A's reaction under crossexamination:
I asked him to pull out and I felt that he was his answer was sort of he'll think about it 50/50 (T:42.5, 7.3.12).
He said he would think about it. He wasn't committed either way after that meeting. Whether he made his mind up, I don't know, but I left that meeting with an understanding that there was still a chance that he might, you know, 50/50 that he might agree to walk away. It was unresolved … on the 30th. His position (T:47.5, 7.3.12).
[Ms Cahill:] I want to suggest to you that as at 6 December, …, you were clearly of the position that you had determined to proceed with the transfer to [the wife] and you knew that the consequence of that is that Mr [A] was very likely to proceed with an application for specific performance?---No, not very likely. I'd left that I thought he was 50/50. That's as probably as high as I can - when I'd left him, when I'd last spoken to him, I thought it was 50/50.
So there was a real possibility, then?---50/50, if that's - your language is real. I can agree with that. It was 50/50. I thought there was a prospect, yep.
He might or he might not?---Yep. Yep.
But it was certainly possible?---Yep. I thought it was possible.
And you didn't know when?---No.
Could be immediately or he could wait?---Yeah. Yep. (T:68.2.4, 7.3.12).
Mr A gave consistent evidence to the contrary. In his witness statement, which was admitted as his evidenceinchief, he said the following:
I was keen to buy the property as I thought it was a good buy. I told [the practitioner] words to the effect that I would not agree to pull out of the contract or even to consider pulling out of the contract.
At all times it was my intention to proceed with the contract. Although I cannot now recall precisely what I said to [the practitioner] I made it quite clear I would not pull out of the contract.
In crossexamination, Mr A gave the following evidence:
I was so flabbergasted when he came to the door to be perfectly honest, and all I can basically remember saying is that I wasn't going to give up the house, the house was legally mine. (T:48.5, 6.3.12).
We prefer Mr A's evidence on this point to that of the practitioner for three reasons. First, Mr A's evidence, that he made it clear that he would not agree to pull out of the contract or even consider pulling out of the contract, is supported by a letter that he wrote on 4 December 2004 to the practitioner's real estate agent. The letter stated as follows:
I have been advised that a caveat has been lodged on the above property.
As my offer was accepted before the caveat was lodged and I have complied with all aspects of the contract, I would like to advise you that I wish to proceed with the purchase.
In the event that settlement does not proceed on the agreed date (14th December 2004), I hereby advise you that I will instruct my solicitor to initiate a default of contract notice.
Mr A gave evidence that he wrote the letter 'as a result of discussions with Nathan [Hewitt, an employee of the agent], and Peter Sim, who was the owner/manager of Ross [&] Galloway, about [the practitioner's] apparent intention not to honour the contract of sale'. Mr A's letter clearly shows that he intended to proceed with the purchase.
Secondly, the practitioner did not contact Mr A again after their meeting on 30 November 2004. If Mr A had indicated to the practitioner that he would seriously consider releasing him from the contract and had genuinely left the practitioner with an understanding that there was a 50/50 chance that he would do so, one would reasonably expect the practitioner to have followed up with Mr A soon after the meeting to see what his position was. The fact that the practitioner did not contact Mr A again further indicates that Mr A made it clear to the practitioner at the meeting that he would not agree to pull out of the contract.
Thirdly, Mr A's subsequent conduct outlined below clearly shows that he was determined to obtain the subject property in accordance with the contract. He instructed solicitors by 17 December 2004, caused a notice of default to be issued in February 2005, and commenced proceedings in the Family Court of Western Australia and in the Supreme Court of Western Australia. Ultimately, 26 months after the date for settlement under the contract, Mr A obtained the property.
It is apparent that having had to litigate for such an extended period to obtain the subject property has made Mr A antagonistic to the practitioner. The extent to which Mr A does not like the practitioner was made clear by Mr Rynne's opening questions to him:
… I couldn't help but overhear, sir, when I walked in that you - before when you were in here you made a comment to the effect of - and I wrote it down a couple of minutes later - "Just make sure that you get him." Do you recall making that statement, or words to that effect?---Words to that effect, yes.
So I take it from that, sir, you were referring to [the practitioner]?---I most certainly am.
And you were anxious to see that the charges against him were successful?---Not anxious at all.
So the reason for your comment, sir?---As we know, as per the court case
Yes?--- - - - put me through so much hassle and cost me so much money. (T:44.3.6, 6.3.12).
Nevertheless, Mr A answered all questions put to him under crossexamination on their terms, including agreeing that he had said the words 'just make sure that you get him' when he walked into the hearing room. Having observed Mr A's evidence, we do not believe that his antagonism towards the practitioner tainted the truthfulness of his evidence. Given the manner in which he gave his evidence, the fact that it is relevantly supported by his letter of 4 December 2004, and his subsequent conduct, and the fact that the practitioner did not subsequently contact him, we accept his version of what he said to the practitioner at their meeting on 30 November 2004, namely that he intended to proceed with the purchase of the subject property and find accordingly.
However, even if we were to accept the practitioner's evidence of the outcome of the discussion at his meeting with Mr A, namely that he genuinely 'left that meeting with an understanding that there was still a chance that he might, you know, 50/50 that he might agree to walk away' (T:47.5, 7.3.12), we would still come to the same findings of professional misconduct as expressed below. Even on this understanding of the discussion, the practitioner knew that there was a 50% chance that Mr A still wanted the property. Knowing that, the practitioner proceeded to cause consent orders to be filed which required him to transfer the property to the wife, and signed a transfer pursuant to the orders, without notifying Mr A of the proposed consent orders or the Family Court of Western Australia of Mr A's interest, and thereby necessarily sought to defeat Mr A's claim to specific performance of the contract of sale and, at best, to reduce his entitlement to a claim for damages.
Finally, in relation to Mr A's evidence, the practitioner, in his supplementary written submissions, submitted that Mr A's 'recollection of what he wanted to do at the end of the meeting on 30 November 2012 [sic 2004] is irrelevant', because Mr A understood, by the time of that meeting, that The wife had lodged the caveat. However, Mr A's indication to the practitioner of his position at the meeting on 30 November 2004 is obviously relevant, because it shows that the practitioner knew, before he signed the consent orders and caused them to be filed, that Mr A intended to proceed with the purchase or (on the practitioner's version) there was a 50% chance that he wanted to proceed with the purchase. Furthermore, the fact that there was a caveat did not affect Mr A's position as is plain from his letter of 4 December 2004 to the real estate agent. Finally, although there is no evidence that either Mr A or the practitioner considered this at the time, the practitioner, as vendor under an unconditional contract, had an obligation to give clear title, including, if necessary, taking action to have the caveat withdrawn or set aside.
Ms B gave evidence that, on the morning of 1 December 2004, she spoke with the practitioner and the wife, separately, by telephone. She made a contemporaneous file note of both telephone conversations on a single sheet of paper. She also settled the draft of minute of orders after speaking with the wife. Ms B's evidence in this regard was not disputed and we accept it.
At approximately 1 pm on 1 December 2004, the practitioner and the wife met for an hour prior to attending a second informal conference at Ms B's office. The practitioner gave evidence, which was not questioned and which we accept, that he stressed to the wife that the only way in which he would look at transferring the subject property to her was if she could guarantee to him that she would settle down and that their children could have a home that they in turn could settle down in. The practitioner said that the wife 'was adamant that she would now do this in the[subject] property'.
At approximately 2 pm on 1 December 2004, a second informal conference took place between the practitioner, the wife and Ms B at Ms B's office. At the conference, the practitioner stressed that he wanted to ensure that the subject property was retained as a secure base for his children. Ms B made a contemporaneous, short, handwritten note of the fact that the wife and the practitioner had reached an agreement and with regard to the preparation of a Minute of Agreed Orders, which she abbreviated to MAO.
The practitioner and the wife both signed the Minute of Agreed Orders at the informal conference, although there were two gaps left in the Minute at the time. The document was dated 1 December 2004.
The Minute of Agreed Orders stated that:
…WITH THE INTENTION that these orders will finally determine the financial relationship between the parties and avoid further proceedings between them,
THE FOLLOWING ORDERS BE MADE BY CONSENT: …
There then followed eight proposed orders, in which the practitioner was referred to as 'the husband' and the wife as 'the wife', including the following:
2.Within 28 days of the date of this order:
(a)the husband transfer to the wife all his right, title and interest in the [subject] property …
4.The husband indemnify the wife with respect to any damages or liabilities arising from the offer and acceptance dated [ ] day of November 2004 with respect to the [subject] property.
7.The Applications and Response otherwise be dismissed … .
The two gaps that were left in the Minute of Agreed Orders when the document was signed by the practitioner and the wife on 1 December 2004 were the date of the 'offer and acceptance' with respect to the subject property, referred to in proposed order 4, and the amount of child support payable for a specified period, referred to in proposed order 6. Ms B gave evidence, which was not disputed, that the practitioner agreed to provide the information needed to complete the Minute of Agreed Orders and authorised her to insert the necessary details.
On 3 December 2004, Ms B had a telephone conversation with the practitioner and made a contemporaneous file note of the conversation and of a subsequent telephone call to the wife. The file note referring to her telephone conversation with the practitioner states as follows:
TA [practioner's name]
p'er causing some hassles on [subject property]
spec perf will prob know Mon
OA doesn't have cond on it
wld [the wife] consider rec'ing cash as another idea?
shld have cs info later today.
As Ms B said, this file note evidences that, during the telephone conversation on 3 December 2004, the practitioner told Ms B that Mr A was 'causing some hassles' in respect of the subject property and was threatening specific performance. This is consistent with Mr A's evidence referred to earlier of having had discussions at around this time with Mr H and Mr Sim of Ross & Galloway about the practitioner's apparent intention not to honour the contract. It is also consistent with Mr A's evidence that he indicated to the practitioner that he would not release him from the contract.
Ms B also gave evidence, consistently with her file note, that on 3 December 2004 the practitioner told her that the contract with the purchaser (which she referred to as the 'OA', meaning Offer and Acceptance) did not contain an 'escape clause' and that he would probably know more by the following Monday (that is, 6 December 2004) as to what the position of purchaser was. Ms B also gave evidence, consistently with the file note, that the practitioner asked her whether the wife would accept cash instead of the subject property. After taking instructions, Ms B informed the practitioner that the wife would prefer to retain the subject property. Ms B made a further contemporaneous, short, handwritten note of the telephone conversation which evidences this discussion.
On 3 December 2004, the practitioner sent a facsimile to Ms B providing the outstanding information for the Minute of Agreed Orders, namely the date of the offer and acceptance of the subject property and the figure for child support. It appears that Ms B then inserted those figures in the Minute of Agreed Orders signed two days earlier by the practitioner and her client.
In his substituted response to the application, the practitioner said that, while he may have had a telephone conversation with Ms B on 3 December 2004, 'at no time did the conversation canvass specific performance of the contract of sale'. However, the practitioner did not make a statement to this effect in his witness statement. Mr Rynne crossexamined Ms B about whether she had any specific recollection of those conversations and she said that she did not, although she also said that 'the records [of the conversations] are on the file note' and that 'they were written at the time' (T:89.7, 6.3.12). There is no basis to doubt the accuracy or contemporaneity of Ms B's file notes or the veracity of her evidence based on those file notes. We therefore find that, on 3 December 2004, the practitioner was aware that Mr A was threatening specific performance and, although he signed the proposed consent orders two days earlier, he was looking to see whether the wife would consider receiving cash instead of the subject property (which would have allowed the practitioner to honour the contract with Mr A). Based on the file note of 3 December 2004 and Ms B's evidence that it was written contemporaneously, we are satisfied that the telephone conversations on 3 December 2004 about which Ms B gave evidence occurred as she deposed to and we find accordingly.
Ms B gave evidence that, on (Monday) 6 December 2004, during a further telephone conversation, the practitioner advised her that there had been no developments over the weekend and that he intended to tell the purchaser that he was not going ahead with the sale of the subject property. In his substituted response to the application, the practitioner denied that, in a telephone conversation on 6 December 2004, he told Ms B that he intended to tell Mr A that he was not going to proceed with the sale. However, he did not provide a witness statement to this effect and Ms B again made a contemporaneous file note of the telephone conversation, her other attempts to call the practitioner, and a subsequent telephone conversation with the wife. Her file note of the telephone conversation supports her evidence, which we accept.
Ms B gave evidence that, on 7 December 2004, during a further telephone conversation, the practitioner said that he would like the Minute of Agreed Orders filed as soon as possible to deflect a claim for specific performance by the purchaser of the subject property. In his substituted response to the application, the practitioner denied that he said this to Ms B and stated that he did not have this conversation. However, he again did not include this in his witness statement. Ms B made a contemporaneous file note of the telephone conversation on a file note/telephone attendance form commonly used by her firm. The file note dated 7 December 2004 states as follows:
TA [practitioner's name]
wld like MAO filed asap to deflect
spec perf by p'er
Ms B was crossexamined about her evidence in relation to this telephone conversation. She agreed that she did not have any independent memory of the conversation and relied upon her file notes. (A position which we regard as unsurprising given the period of time which elapsed between the making of the file note and the evidence which she gave before us.)
The practitioner was crossexamined about the telephone conversations referred to in Ms B's evidence. The practitioner gave the following evidence in crossexamination:
I don't recall any conversations after, you know, the 3rd [of December 2004] at most. I may have on the 3rd. I don't recall any of these conversations after that day, Ms Cahill. …
I have no personal recollection of those calls occurring at all after that date [i.e. after 3rd December 2004] (T:66.4 and 66.6, 7.3.12).
The practitioner also gave the following evidence in crossexamination:
Did you say there were any conversations on 7 December?---No. I had no recollection of ringing or talking to [Ms B].
No. Let's not talk about recollections. Are you denying that there were any conversations on 7 December?---I'm sure they didn't occur. I didn't talk to [Ms B]. I didn't have any need to talk to [Ms B].
You're sure they didn't occur?---Well, I'll be clear. My recollection is I did not talk to her after the 1st or the 3rd in there. So on that basis, I cannot recall any conversation on the 6th or the 7th about any subject matter. I just cannot recall it. It was done, it was finished.
You said two somewhat different things there, …, and I need to get to the bottom ?---Sure. Yeah.
of what your evidence is?---Yeah.
Is your position that there were no phone conversations on 7 December with Ms [B] or is your evidence that you do not recall ?---No. My evidence is - and I do apologise for that, I was too quick - I cannot recall those conversations, in fairness, at all. …
There you say you didn't have these conversations?---No. What that means is because we didn't have them to talk about specific - this deflection issue. Your pleading says there were two telephone conversations in which deflection of specific performance was discussed. They did not occur. Those conversations did not occur. There was never a conversation on the 7th about deflecting specific performance. You asked me about whether I had a conversation with her. I can't recall on other stuff - or I can't recall - but that's not what your pleading says and that's what that's addressed at.
So you might have had a conversation with her or conversations with her on 7 December?---I can't recall any conversation on those dates.
Therefore, you ?---But I definitely didn't have one about specific performance and deflection, and any of that stuff.
I'm just trying to assist the tribunal by getting some clarity on your evidence, …?---Yep.
You cannot recall, but it's possible, that you had one or more conversations with Ms [B] on 7 December. Is that right?---Not on this content.
No. I haven't put the subject matter to you, …. We'll get to that?---Possible. Possible.
It's possible, but you can't recall?---No.
What you deny is that there was a conversation or conversations in the terms set out at paragraph 16 of the application?---Yeah. Absolutely. They never occurred. Yep.
And you appreciate, don't you, that allegation is quite an important one in terms of reflecting on your, if it's true, on your motivations at the time?---You're asking my opinion?
Yes. You understand ?---It seems to be an important part of your case.
Yes?---Yeah.
Because you would accept now that it wouldn't be appropriate to file a consent order to deflect or defeat a specific performance claim, do you?---Well, the language that's used imports some sort of malice or some sort of - and I would have thought, "No. It's completely wrong to do that sort of thing."
Completely wrong?---Well, the way you've pleaded it, yeah, the way you've sort of pleaded the sort of sinister or malicious sort of aspect to it.
(T:69.571.5, 7.3.12).
First, it is said, correctly, that it was Ms B who wrote the letter of 7 December 2004 to the Family Court and the practitioner took no part in its preparation or drafting and was not aware of it until after it was sent. Ms Black submits that the drafting and sending of the letter (together with the filing of the orders) was a significant difference in the conduct of the two practitioners. That is so. We accept the submission and regard Ms B as having a greater level of culpability than the practitioner in this respect.
Second, it is said that Ms B prepared and lodged the consent orders with the Court. We accept this is so, but think it of limited significance. The practitioner signed the Memorandum of Agreed Orders and provided outstanding information with the intention and understanding that it would lead to the consent orders being filed and made. Furthermore, the practitioner told Ms B that he wanted the Memorandum of Agreed Orders to be filed as soon as possible in order to 'deflect', that is, to defeat, Mr A's anticipated claim for the specific performance in respect of the property (conduct reasons at [86]).
Third, it is said that Ms B was an experienced practitioner within the family law jurisdiction and had no 'distracting' personal involvement in the matter. Conversely, it is said that the practitioner had no experience in that jurisdiction and was acting in a matter that 'deeply affected his ability to exercise good judgment'. We accept the position in relation to Ms B's and the practitioner's experience and that their involvement was different in that Ms B was acting for a client, but again this has limited significance. The practitioner evidently regarded himself as sufficiently experienced in a general sense to conduct the Family Court proceeding not merely in relation to the property settlement, but thereafter when Mr A initially brought proceedings in the Family Court. More significantly, as a practising solicitor, the practitioner well knew or ought to have known of his duty to deal honestly and candidly with the Court and with Mr A. As earlier indicated, that was not a matter calling for experience in a particular jurisdiction, or specialist training, but would be regarded as axiomatic for a practitioner admitted to the roll, and thereby being an officer of, the Supreme Court. As to the practitioner being distracted by his personal involvement, that in one sense puts him in a more culpable position. Ms B was (misguidedly) pursing the interests of her client (the wife) for a fee. The practitioner was pursing his own interests; that is, first entering into the contract of sale with Mr A and thereafter seeking to defeat his claim for specific performance through orders of the Family Court, in order to allow his (former) wife and children to live in the subject property. The practitioner brought about the circumstances which made it necessary to 'deflect' the purchaser's claim. We mention also that in the earlier proceeding the practitioner was prepared to mislead the opposing firm notwithstanding the absence of any such distracting interest.
Reconciling B
The degree of difference between the circumstances of B and the present case is evident from the outline of the penalty decision in that case given at [99] above. The relevant differences may be summarised as follows.
First, Ms B had a long legal career of approximately 29 years, including periods as a Registrar and as an acting Magistrate of the Family Court, and had not been the subject of any other disciplinary proceedings. In contrast, the practitioner, during a much shorter career of 12½ years of professional practice, has been the subject of earlier disciplinary proceedings with findings of incompetence and misleading his opponents. The practitioner was also found guilty by us of unsatisfactory professional conduct relating to his responses to the Committee.
Secondly, based on the references provided, the Tribunal in B was able to reach the conclusion that Ms B's conduct was entirely out of character and a single lapse in her otherwise high professional standards, rather than a defect of her character demonstrating an underlying unfitness to practise. In contrast, we have not been persuaded that the references provided by the practitioner have established his reputation for honesty and integrity. We acknowledge that, as indicated in his affidavit, the practitioner has not been able to obtain references from members of the judiciary before whom he has appeared, because of the confirmation of a judicial policy, since Ms B obtained and used character references from judicial officers in her disciplinary proceeding, not to provide character references for use in disciplinary proceedings brought against legal practitioners. Whether, absent the policy, judicial officers would have given references for the practitioner and what those references might have said, remain open questions. Significantly, we have found that the practitioner's conduct reflects on his character in a manner which directly brings into question his fitness to remain in legal practice.
Thirdly, in the course of her conduct hearing, Ms B acknowledged that her conduct involved a serious error of judgement and said that she was uncomfortable with her avoiding Mr A's solicitors. She acknowledged in retrospect that she should have notified the Court and the third party both before and after the making of the orders. In contrast, there was no such acknowledgement by the practitioner in this case who maintained that he was entitled to act as he did and that to the extent that there was some duty to notify the court and Mr A, this was entirely Ms B's responsibility.
Fourthly, by the time of her penalty hearing, Ms B acknowledged that she had engaged in serious breaches of her professional duties, including recklessly misleading the Court. In contrast, there has been no such acknowledgment by the practitioner in this case. He has not only maintained that he has not engaged in professional misconduct, but has never accepted that his conduct was wrong or unfair. The closest he has come to acknowledging any culpability is his response that 'the purchase should have been joined to the proceedings'. The practitioner had the opportunity to acknowledge the seriousness of his conduct in the affidavit which he provided for the purposes of the penalty hearing. He did not do so. In those circumstances, we do not think it advances the matter that Ms Black (on his behalf) said in her oral submissions that she accepts, as she must, that the practitioner made decisions which were 'wrong in a very serious way'.
Fifthly, the Tribunal in B regarded a period of suspension from practice as one that would otherwise have been appropriate for Ms B. We are therefore entitled to infer that the Tribunal was satisfied that, having served that period of suspension, Ms B could be held out as a fit and proper person to practise as a legal practitioner. For reasons we have given, we do not think a specific deterrent of this nature would mean that thereafter the practitioner was fit to resume practice.
We mention one final matter. Senior counsel for the Committee submits that when the issue is fitness to practise, so that the character of the practitioner is in question, the principles relating to parity assume less significance. We think there is some force in this submission to the extent that the enquiry as to a person's character is likely to be unique to the circumstances of that person.
In any event, we are satisfied that the circumstances we have outlined above justify different penalties to be applied in B and in the present case. More broadly, we think the legal principles governing penalty in disciplinary proceedings have been consistently applied in both B and the case before us, such that the requirement for parity has been met.
We mention, for completeness, that we have read all of the other cases mentioned by the parties on the subject of penalty where a practitioner has been found guilty of misleading a court. Each requires to be read in the light of the substantive findings made and the considerations affecting the particular practitioner.
Unsatisfactory professional conduct in response to the Committee
We have set out our findings in relation to this issue in the conduct reasons at [159] - [173]. We have found that the practitioner's responses to the reasonable requests of the Committee were uncooperative and obstructive. We have also drawn attention to an authority in this jurisdiction which affirms that a failure in this respect may amount to unprofessional conduct. Our finding is that this conduct fell short of, to a substantial degree, the standard observed or approved by practitioners of good repute and competence and therefore constitutes unsatisfactory professional conduct.
We accept the Committee's submission in this respect that, having decided to make and transmit a report on our findings of professional misconduct to the Supreme Court (full bench) with a recommendation that the name of the practitioner be removed from the local roll (and to some extent taking into account this finding of unsatisfactory professional conduct in that context), no separate penalty in respect of the finding of unsatisfactory professional conduct is appropriate.
Costs
The general position in relation to costs in the Tribunal is that, normally, each party bears its own costs of a proceeding: s 87(1) of the SAT Act. However, insofar as the Committee has been substantially successful in the charges of professional misconduct which it has brought, and given the statutory functions of the Committee in investigating and bringing complaints against legal practitioners in the interests of protecting the public, we accept (subject to the practitioner's specific submissions addressed below) that it is appropriate to order that the practitioner pay the Committee's reasonable costs of the proceeding: Legal Profession Complaints Committee and Benari [2005] WASAT 213 (S) (Benari) at [25]; Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) (Roberman) at [30].
The Committee does not seek any solicitors' fees, but seeks an order for the payment of its disbursements, including counsel's fees. The Committee has produced two schedules of disbursements and invoices showing an updated total, including the penalty hearing, of $51,517.50, of which counsel's fees amount to $47,534.20. Senior counsel has charged an hourly rate of $350 (for work performed in 2008 and 2009) and an hourly rate of $550 and a daily rate of $5,000 (for work performed since 2010). These invoices have then been discounted by 20% with the consequence that the fees sought are a rate of $280 per hour (for work performed in 2008 and 2009) and $440 per hour and $4,000 per day (for work performed since 2010).
We are satisfied that the complexity of the allegations against the practitioner justified the briefing of senior counsel and, looking at the matter broadly (and having regard to the rates prescribed in the Legal Profession (State Administrative Tribunal) Determination 2008 (which applied from 1 March 2009 to 30 September 2010), 2010 (which applied from 1 October 2010 to 31 December 2012) and 2012 (which applied since 1 January 2013) as a guide to the maximum rate which might be allowed), that the work performed by senior counsel and the fees charged by her are reasonable and appropriate in the circumstances of this case. Indeed, the practitioner has not challenged the quantum or details of the Committee's accounts.
What the practitioner does contend, however, is that the Committee's costs should be discounted to reflect that the Committee was not successful on all counts, citing Benari at [25] - [26] and Phillips Fox (A Firm) v Westgold Resources NL & Ors [2000] WASCA 85. The practitioner submits further that an order will not usually be made in favour of a vocational regulatory body in respect of a part of proceedings in which it has not been successful: Benari at [26]; Roberman at [30] [32]; Motor Vehicle Industry Board and Dawson [2006] WASAT 8. The practitioner also refers to Benari at [27] in support of the proposition that the Tribunal may take into account any special matters when determining costs.
These propositions may all be generally be accepted, although it may be added that a reduction in costs in respect of a charge on which the Committee failed will more readily be made where that charge may be regarded as a discrete issue involving its own evidence: Roberman at [31]. Ultimately, it is a matter of the Tribunal's discretion, taking into account all circumstances.
On the subject of the Committee not being successful on all counts, only one instance is identified, being the charge that the practitioner intentionally or recklessly caused or permitted the Family Court to be misled as to the reasons why the orders were sought urgently. Given that the practitioner did not receive the letter written by Ms B to the Family Court until after the orders had been made, we did not uphold this charge (conduct reasons at [153]). However, we think that the sending of the letter by Ms B formed an integral part of the background facts to this matter and that the unsuccessful allegation did not extend the scope of the evidence and the hearing in any substantial way. In the circumstances, we would allow a small discount (5%) to the Committee's costs in this respect.
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.
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.
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
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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