LEGAL PROFESSION COMPLAINTS COMMITTEE and BARBER
[2015] WASAT 99 (S)
•2 DECEMBER 2015
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| ACT | : | LEGAL PROFESSION ACT 2008 (WA) |
| CITATION | : LEGAL PROFESSION COMPLAINTS |
COMMITTEE and BARBER [2015] WASAT 99 (S)
| MEMBER | : | JUSTICE J C CURTHOYS (PRESIDENT) MS R MOORE (MEMBER) MR S ELLIS (SENIOR SESSIONAL MEMBER) |
| HEARD | : | 13 NOVEMBER 2015 |
| DELIVERED | : | 2 DECEMBER 2015 |
| FILE NO/S | : | VR 130 of 2014 |
| BETWEEN | : LEGAL PROFESSION COMPLAINTS |
COMMITTEE
Applicant
AND
JULIA BARBER
Respondent
Catchwords:
Knowingly misleading Tribunal - Suspension - Reprimand
Legislation:
Corruption and Crime Commission Act 2003 (WA), s 168, s 171
Legal Profession Act 2008 (WA), s 403, s 438
State Administrative Tribunal Act 2004 (WA), s 87(1)
[2015] WASAT 99 (S)
Result:
Practitioner suspended for six months, reprimanded and to pay Committee's costs
Summary of Tribunal's decision:
On 18 September 2015, the Tribunal published reasons for its decision in respect of allegations brought by the Legal Professional Complaints Committee against a legal practitioner, Ms Julia Barber. The Tribunal found that the practitioner had engaged in unprofessional conduct in 2008. The parties then made written submissions as to penalty.
The Tribunal considered the principles to be applied in relation to disciplinary penalties, the nature of the findings against Ms Barber and the parties' respective submissions.
The Committee sought an order that the practitioner be struck off.
The Tribunal found that Ms Barber's conduct in 2008 established that she
had fallen below the high standards to be expected of a practitioner, but not in such a way as to indicate that she lacks the necessary qualities of character to be a practitioner.
The Tribunal was satisfied that upon completion of a partial suspension, she will be fit to resume practice.
The Tribunal determined that a period of suspension of six months is appropriate. If it were not for Ms Barber's conduct since 2008 and her particular circumstances in Broome, the period of suspension would have been much longer.
The Tribunal also determined that it was appropriate that Ms Barber be
reprimanded.
Ms Barber will also pay the Committee's costs.
Category: B
Representation:
Counsel:
| Applicant | : | Mr Cuerden SC and Ms P Le Miere |
| Respondent | : | Mr M McCusker QC and Ms WF Gillan |
Solicitors:
| Applicant | : | Law Complaints Officer |
[2015] WASAT 99 (S)
| Respondent | : | Francis Burt Chambers |
Case(s) referred to in decision(s):
Health Care Complaints Commission v Litchfield (1977) 41 NSWLR 630
Legal Practitioners Complaints Committee and Benari [2005] WASAT 213 (S)
Legal Profession Complaints Committee and Barber [2015] WASAT 99
Legal Profession Complaints Committee and Wells [2014] WASAT 112 (S)
Legal Profession Complaints Committee v Brickhill [2013] WASC 369
Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202
[2015] WASAT 99 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
1 On 18 September 2015, the Tribunal found that Ms Barber, between
on or about 30 June 2008 and 19 August 2008, engaged in professional misconduct within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) (LP Act) in that in the course of acting as instructing solicitor for Red Sun Camels Pty Ltd and Ships of the Desert in proceedings before this Tribunal, she knowingly caused the Tribunal to be misled by submissions of counsel and by the tender of and reliance upon a witness statement of Mr John Geappen, dated 25 June 2008 and a witness statement of Mr Christopher Hill, dated 26 June 2008 which as Ms Barber well knew:
a) conveyed the impression, either expressly or impliedly, that from 1 July 2007 or thereabouts and at all material times thereafter, Mr Hill was the owner of Ships of the Desert; and b) concealed the fact that from 1 July 2007 or thereabouts and at all material times thereafter, Red Sun Camels Pty Ltd was the owner of Ships of the Desert;
when in fact, from 1 July 2007 or thereabouts, and at all material times thereafter, as Ms Barber well knew, Red Sun Camels Pty Ltd (and not Mr Hill) was the true owner of Ships of the Desert.
These reasons deal with the appropriate penalty for Ms Barber.
The significance of the practitioner's conduct
3 The Tribunal's findings in Legal Profession Complaints Committee and Barber [2015] WASAT 99 established that the practitioner engaged in conduct that strikes at the heart of the relationship between lawyers and the Tribunal.
4 In Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 (Vogt) an affidavit sworn by the practitioner was misleading and at the time he swore the affidavit the practitioner knew it was misleading or was reckless as to whether or not it was misleading. Further, submissions made orally by the practitioner were misleading and at the time the practitioner made those submissions he knew they were misleading, or was reckless as to whether or not they were misleading.
[2015] WASAT 99 (S)
In Vogt at [61] the Court stated:
For a practitioner, in the course of his or her practice, intentionally to mislead anyone is a serious breach of the practitioner's professional duty. But the finding in the present case that the appellant intentionally misled the court is of particular significance. It goes to the very heart of a practitioner's duty as an officer of the court and therefore to the proper administration of justice. We would respectfully adopt what was said in that respect by the Queensland Court of Appeal in The Council of the Queensland Law Society Inc v Wright [2001] QCA 58, a case involving a solicitor who (among other things) intentionally misled a court in relation to an affidavit relied upon to resist a summary judgment application and as to the availability of a witness. The court said:
A practitioner's duty to the court arises out of the practitioner's special relationship with the court; it overrides the duties owed by a
practitioner to clients or others … The lawyer's duty to the court
includes candour, honesty and fairness. … The effective
administration of the justice system and public confidence in it substantially depends on the honesty and reliability of practitioners' submissions to the court. This duty of candour and fairness is quintessential to the lawyer's role as officer of the court; the court and the public expect and rely upon it, no matter how new or inexperienced the practitioner. Breaches such as this are hard to detect and once established to the requisite standard are deserving of condign punishment, not only as a deterrent but also to reassure the public that such conduct on the part of lawyers will not be tolerated [67].
In Legal Profession Complaints Committee v Brickhill
[2013] WASC 369 (Brickhill), the practitioner was convicted of:
1) giving misleading evidence contrary to s 168 of the Corruption and Crime Commission Act 2003 (WA) (2003 Act); and
2) knowing that a document or thing was or may be required by the Corruption and Crime Commission, counselled a person to destroy that document or thing with the intention of preventing it from being effectively used in evidence, contrary to s 171 of the 2003 Act.
In Brickhill at [21]-[22] the Court stated:
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
[2015] WASAT 99 (S)
[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].
Relevant principles - penalty
8 The principles relevant to penalty are set out in this Tribunal's
decision in Legal Profession Complaints Committee and Wells
[2014] WASAT 112 (S) (Wells).
In Wells, the Tribunal stated:
16
The jurisdiction of the Tribunal is protective rather than punitive, and such protection runs to both the public and the profession (Re Maraj (a Legal Practitioner) (1995) 15 WAR 12 at 25 (Maraj)); Legal Profession Complaints Committee v Love [2014] WASC 389 (Love) at [19]; Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 (Foreman) at 440G - 441A - B; Legal Profession Complaints Committee and in de Braekt [2013] WASAT 124 at [24] - [26]; NSW Bar Association v Hamman [1999] NSWCA 404 (Hamman) at [21] and at [77]).
17
The appropriate sanction is to be considered at the time of the making of the sanction and not by reference to the date of the unprofessional acts (Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37(S) (A Legal Practitioner (S)) at [23]; Legal Profession Complaints Committee v Segler [2014] WASC 159 (Segler) at [7]; A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253 (A Solicitor [2004] NSW) at [15]; Love at [16]).
18
It is the practitioner's conduct that attracts any sanction (A Legal Practitioner (S) at [24]; Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 267 - 268 and 271 - 272; A Solicitor [2004] NSW).
19 As the Tribunal explained in A Legal Practitioner (S) at [24]: … [I]n 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
[2015] WASAT 99 (S)
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[.]
…
21 Where there is a choice of sanctions, the Tribunal will choose that sanction which maximises the protection of the public (Quinn v Law Institute of Victoria [2007] VSCA 122 at [31]).
22 The dominant purpose of the disciplinary regulation of the legal profession is the protection of the public by the maintenance of proper standards within the profession. Hence, the impact which an appropriate penalty would have upon a practitioner guilty of misconduct, and personal hardship to a practitioner, are necessarily secondary considerations (see Legal Profession Complaints Committee v Detata [2012] WASCA 2014 (Detata) at [47] and Legal Profession Complaints Committee v Masten [2011] WASC 71 at [29]; Legal Profession Complaints Committee and Leask [2010] WASAT 133 at [54]).
… 24
The jurisdiction of the Tribunal to remove a practitioner from the Roll is exercised not for the purpose of punishing the practitioner concerned, but for the protection of the public and the reputation and standards of the legal profession: Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 at [43].
25
Where an order for removal from the Roll is contemplated, the ultimate question is whether the material demonstrates that the practitioner is not a fit and proper person to remain a legal practitioner: A Solicitor v The Council of the Law Society of NSW (2004) 216 CLR 253 at [15].
26
A practitioner is not a fit and proper person to be a registered practitioner and should be removed from the register where the unprofessional conduct is so serious that the practitioner is permanently or indefinitely unfit to practise (Howe (No 2) at [27]; Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 (Darveniza) at [38]; Love at [17] - [18]; A Legal Practitioner (S) at [21] - [25]; Legal Profession Complaints Committee v Brickhill [2013] WASC 369 at [19] - [20] (Thomas JA, McMurdo P and White J agreeing); New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [26] - [28]); Love at [17] - [18].
…
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29 Suspension is a less serious result and differs from removal from the Roll because suspension is for a specified limited period and the practitioner has a preserved right to resume practice without any further onus upon them to prove that they are a fit and proper person to practice (A Legal Practitioner (S) at [26]; LPCC v Pepe [2009] WASC 39 at [12]).
30 The proper use of suspension is in cases where the 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/she lacks the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a practitioner (A Legal Practitioner (S) at [26]; Re A Practitioner (1984) 36 SASR 590, at 593 per King CJ). That is, suspension is suitable where the Tribunal is satisfied that, upon completion of the period of suspension, the practitioner will be fit to resume practice (A Legal Practitioner (S) at [27]).
10 In Wells at [20], the Tribunal identified the following 12 relevant considerations, noting they are interrelated, and neither mutually exclusive nor exhaustive:
(1) any need to protect the public against further misconduct
by the practitioner;(2) the need to protect the public through general deterrence
of other practitioners from similar conduct;(3) the need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions and thereby articulating the high standards expected of the profession, such that, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval; (4) in the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner; (5) whether the practitioner has breached any Act, regulations, guidelines or code of conduct, and whether the practitioner has done so knowingly;
[2015] WASAT 99 (S)
(6) whether the practitioner's conduct demonstrated incompetence, and if so, to what level;
(7) whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future; (8) the practitioner's disciplinary history; (9) whether or not the practitioner understands the error of his or her ways, including an assessment of any remorse and insight (or a lack thereof) shown by the practitioner, since a practitioner who fails to understand the significance and consequences of misconduct is a risk to the community; (10) the desirability of making available to the public any special skills possessed by the practitioner;
(11) the practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction; however the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of legal practice; and (12) the Tribunal may consider any other matters relevant to the practitioner's fitness to practice and other matters which may be regarded as aggravating the conduct or mitigating its seriousness; in general, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive.
11 In Wells at [20(10)] the Tribunal identified the desirability of making available to the public any special skills possessed by the practitioner as a factor to be considered. The Tribunal has concluded that the availability of the skills of a practitioner in a geographical area, particularly a remote area, is sufficiently analogous to special skills, to be considered in fixing penalty.
[2015] WASAT 99 (S)
12 In Health Care Complaints Commission v Litchfield (1977) 41 NSWLR 630 (Litchfield) at 637C, the New South Wales Court of Appeal held:
In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh JA said in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461; 84 WN (NSW) (Pt 2) 275 at 286:
... Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man.
A mere lapse of time is not sufficient to establish that a practitioner has reformed. Something more is required.
Practice in Broome and personal financial circumstances
14 Of necessity, given the nature of practice in Broome, Ms Barber
practices in a number of areas of law. A breakdown of Ms Barber's
practice files was provided. She currently has over 400 files open.15 Ms Barber is engaged in approximately 90% of the matters on the list
in the Family Court when it comes to Broome on circuit six times during
the year (three times with a Magistrate and three times with a Judge).16 Ms Barber is the only independent children's lawyer between
Geraldton and Kununurra and the only private lawyer in the Kimberley who is on the legal aid panel for appointments in care and protection matters in the Children's Court and in the Family Court.
17 Between 20 to 30% of Ms Barber's work is legally aided and about
10% is pro bono, usually in the Family Law area. Until recently she was the only private lawyer in Broome. There is now one other who would undertake any legal aid work including criminal law.
18 There are only two other private firms in Broome and in those firms
only three private legal practitioners. Those firms undertake only a small amount of the family law work in Broome and due to the small number of firms, conflicts often arise.
[2015] WASAT 99 (S)
19 Ms Barber has been a member of the Family Law Practitioners
Association as the country representative for approximately six years and a member of the Country Law Practitioners Committee of the Law Society.
Ms Barber employs a restricted practitioner, Mr Michael Bycroft, who requires ongoing supervision.
21 Ms Barber also supports Mr Bauman, a very experienced criminal
lawyer, by paying for his practice certificate and briefing him to provide services in criminal matters. She has given him a room in her practice for 11 years without requiring any rent or contributions to outgoings. He is able to offer significantly reduced rate criminal law services particularly to indigenous clients because of her support.
22 Ms Barber submits that a suspension from practice will result in most
of those clients being unable to obtain legal representation. Despite enquiry, Ms Barber has been unable to source a locum to supervise her practice during any period of suspension.
23 Ms Barber provided tax returns for herself, her company and her
trust. She has also provided details of her assets and liabilities. The Tribunal does not need to set out those details in these reasons. It accepts that Ms Barber is financially pressured and would have difficulty paying any substantial fine in addition to the Committee's costs.
Ms Barber was a single mother of three children in 2008. She still supports two of her children.
Ms Barber's personal circumstances in 2008
25 At the time of the offending behaviour, Ms Barber was under a great
deal of stress and worry dealing with her son's problems and her secretary
of four years had cancer.
Ms Barber was supporting not only her own but her secretary's teenage children through the period of her secretary's illness and death.
Ms Barber's references
A number of references for Ms Barber were admitted into evidence. Extracts are set out below.
Ms Teresa Farmer, a barrister stated:
[2015] WASAT 99 (S)
I consider Julia's dealings with the Court and her clients to at all times have been appropriate and honest. She has properly counselled clients about the inclusion of matters against interest in their material, including (for example) appropriate disclosure and sought to negotiate and settle matters where possible to assist clients to a more speedy and cost effective resolution to their affairs. Julia also acts as an Independent Children Lawyer from time to time in family law matters and undertakes both pro bono and Legal Aid work.
I have been instructed on several trials for Julia over the years both in Broome and in Perth, and have not had cause for concern about the state of the evidence, the documents drafted and produced or the realistic expectations of the clients. Julia's clients seem very happy with her representation and I am aware that much of her work is 'word of mouth' referral from previous clients or family members. Julia is however sensitive to inappropriate representation and has referred close friends to alternate solicitors rather than compromise herself in that regard.
I am also the President of the Family Law Practitioners's Association of WA (Inc) and have held that position for 3 years, having previously been the Vice President for several years and prior thereto, the Secretary. For much of that time (and currently) Julia has been the elected Country Representative. Julia has in that time identified some of the particular practical and procedural issues which affect regional practitioners and sought to highlight those for the Court. Further, Julia has been active in the past in promoting arid arranging CPD events in Broome for all local practitioners by asking visiting Counsel or Judiciary to meet with and address them about a range of issues, and often resulting in engaging discussion about practice. Julia is an active participant in seminars and conferences that FLPA arrange over a year and regularly attends our annual conference.
Ms Desiree Male, an accountant stated:
Throughout our professional working relationship Ms Barber has always maintained professional, ethical and honest dealings with both myself and our clients. [She] has assisted a number of my clients who have been very happy with her work.
Ms Barber undertakes a considerable amount of pro-bono work in family law cases as well as teenagers and young adults in relation to crime. Ms Barber was a long standing president of the local primary school's P&C and does voluntary work for the Broome Turf Club each year and has done for a number of years. The most admirable trait I have learnt is that Ms Barber has a history of caring and housing troubled teenagers one of which was a past staff member of my business.
In Broome as a regional centre it is very difficult to obtain professional services including legal services due to the lack of local professionals and retention of staff. Local residents prefer to deal with local businesses to
[2015] WASAT 99 (S)
have that long term relationship. In my view it would be very detrimental to the community of Broome to lose a professional, for any length of time, for which they trust and have built a long term relationship. It would be very difficult for those clients to be able to replace those services locally. Ms Barber is well regarded in the community with a very good reputation as a practicing lawyer and we are very fortunate to have Ms Barber's expertise and services available in our town.
Ms Vicki Platt of the Legal Aid Commission stated:
I have always found and observed Ms Barber to conduct herself in both her personal and professional relationships with the upmost probity. I am confident that she has in the past and will continue in the future to make a valuable contribution to both the Broome and wider Kimberley community, and the profession at large.
Mr Gordon Bauman stated:
I appreciate that the guilty verdict has been pronounced but I can categorically say that the finding is completely at odds with the person I have now known and closely worked with for 11 years and whilst I fully appreciate that the matter is a very serious one I believe that the matter was certainly a one off and not part of Julia's usual character or behaviour and I hope that this Honourable Court is minded to look favourably on the overall contribution Julia has made to the legal practice, particularly within Broome and I hope that she will be able to continue with her practice and the service she has provided to Kimberley residents for the past 14 years.
Mr Antoine Bloeman, a former Magistrate in Broome stated:
During my time as Kimberley Magistrate from 1999 to 2008, many barristers and solicitors appeared before me.
One outstanding one who came to my attention very early on was Julia Barber. She appeared in my court on numerous occasions. My observation was that she was a very competent, committed and caring barrister and solicitor for her clients and for the Court.
Julia consistently represented her clients in the most open way and never misled the Court in any way. In fact, knowing that the Kimberley courts were often late in getting updates on rules and alterations in legislation, she would always update me on any relevant changes either prior to or at the beginning of a hearing.
I had my full trust in Julia Barber as an officer of the Court and as a barrister and solicitor. She consistently demonstrated her professional and personal integrity both inside and outside of court.
Julia is a key member of the Broome legal fraternity as well as volunteer in the wider community. I know, as a Broome resident, how much she is
[2015] WASAT 99 (S)
respected by many people for her contributions. In addition, she often represents many people on a pro bono basis when they cannot obtain legal aid.
I consider the Kimberley fortunate to have such an outstanding barrister and solicitor who is also a committed citizen in our local community.
In relation to the decision by the Tribunal, although the question of ownership of the business was not an issue in the 2008 proceedings and the 2008 Tribunal made no finding as to that, I am, of course, fully cognisant of the seriousness of such a finding against a legal practitioner and of the absolute obligation of, in particular, practitioners, to be completely candid with the Court. I know that Julia is also fully aware of, and committed to, that principle.
It would not be appropriate for me to make any comment on the facts, or the finding made against her. However, I must say that, based on my observations of Julia Barber over the years that I have known her, both as a Magistrate and as a Broome resident, for her to attempt to mislead a court would have been completely out of character and an aberration from the high standards which she has always observed. I can only attribute this to the pressures and personal difficulties which I understand she was experiencing at that time in her life.
In summary, I have the highest opinion of Julia Barber both professionally and personally. It would be a tremendous loss not only to the Kimberley but the West Australian legal community if this intelligent, committed and hard working lawyer of great integrity was disbarred after contributing so much to the work of the courts in which she has appeared during her practice.
Mr Ron Johnston stated:
I was previously the Shire President and was on the Shire as a committee member for 16 years. I am again the Shire President. I also have a number of business associations within the town. I therefore hear much about what is going on. I know of Julia's professional reputation and I am aware of the volume of work that she does on a pro bono or heavily discounted basis and that she has done so for the entire time she has practised in Broome. I also know that she raised her children by herself and that, on top of that, she assisted in raising the children of others who for various reasons were unable to look after them themselves.
…
Whilst I have read the papers and scanned the judgment about Julia, I can say that this is not a representation of the person who I have known for many years and when people comment to me about Julia both on a personal level and on their dealings with her, there has been nothing but positive things said about her and the professionalism and honesty she has
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consistently demonstrated. Many people have expressed their support for her and their dismay at the prospect that Broome and the Kimberley could lose her services as a lawyer, and the contribution she makes, generally, to the Community.
Mr Gary Cobby stated:
I found Julia to be a competent practitioner, committed to her clients, and who, as a country practitioner, recognised when she might need assistance and took steps to seek it out. On the one occasion that an issue arose regarding her ethical obligations, she sought and accepted advice.
35 Ms Barber's references are all extremely complimentary. They
evidence a woman committed to her work, to her clients and to the larger Broome community. The references indicate that Ms Barber's conduct in this matter was out of character.
The Wells' considerations
(1)
Having considered the references and Ms Barber's contribution to the legal and the wider community, the Tribunal is satisfied that there is no need to protect the public against any further misconduct by Ms Barber.
(2) & (3) Ms Barber's conduct does require an emphatic indication
of the Tribunal's disapproval.(4) & (5)
The Tribunal is satisfied that Ms Barber's conduct, although sustained, was in context a single extended act and that the public and fellow practitioners and therefore this Tribunal can place reliance on Ms Barber's word.
(6) Ms Barber's conduct does not demonstrate incompetence. (8) Ms Barber has no disciplinary history. (9)
Ms Barber had not demonstrated any remorse. The Tribunal notes that Ms Barber either admitted or did not dispute many of the Committee's allegations of fact. However, Ms Barber's involvement in the carriage of the matter was not conceded until very shortly before the hearing.
The Tribunal notes with some concern that Mr Bloeman's reference states:
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In relation to the decision by the Tribunal, although the question of ownership of the business was not an issue in the 2008 proceedings and the 2008 Tribunal made no finding as to
that …'.
and the Tribunal could infer that the source of that statement was Ms Barber. Ms Barber should save her arguments for the appeal court.
The failure to express remorse may demonstrate that a practitioner maintains a risk to the community, the Tribunal is satisfied in these particular circumstances that Ms Barber's conduct is not such that she remains a risk to the community following a period of suspension.
The lack of remorse leads the Tribunal to infer that Ms Barber has not fully appreciated the gravity of her conduct.
(10) Although Ms Barber does not possess special skills per se, she is a practitioner in a remote community. The need to service that community is an important consideration. This is not a situation where a practitioner is incompetent. If it were so, then it would be inappropriate to allow her to continue to practise even in a remote community. (11) At the time of Ms Barber's conduct, she was under considerable personal strain due to the illness and death of her secretary. She was also experiencing problems with her son. This goes some of the way to explain her conduct. Although her son remains a potential problem the stress associated with her secretary's illness has passed. (12) Ms Barber has given significant service to the Broome
legal community and the wider community.
Ms Barber was not acting at the direction of, or under pressure from any other more senior practitioner.
Ms Barber had briefed counsel and could have, and should have, discussed the issue with him.
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38 Ms Barber's conduct since 2008 has satisfied the Tribunal that her
conduct in 2008 was not characteristic of her general practice and
character.
The appropriate penalties
39 The Committee sought an order that Ms Barber be struck off.
Obviously, in many cases where a court or tribunal is misled, striking off will be the appropriate penalty, for example, Brickhill. However, that is not always the appropriate penalty, for example, Vogt.
40 Ms Barber's conduct in 2008 establishes that she has fallen below the
high standards to be expected of a practitioner, but not in such a way as to
indicate that she lacks the necessary qualities of character.41 The Tribunal is satisfied that upon completion of a period of
suspension, whilst recognising Mrs Barber's unique circumstances, she
will be fit to resume practice.42 The Tribunal regards Ms Barber's conduct as more serious than that
of Mr Vogt. Her conduct was over a longer period and involved a range
of documents that were prepared for the 2008 proceedings.43 However, since Ms Barber's offending conduct took place, she has
behaved in a manner that satisfies the Tribunal that the offending conduct was an isolated incident. She has made a significant contribution to the legal profession and the wider Broome community as evidenced by her references. If it were not for Ms Barber's conduct since 2008 and her particular circumstances in Broome, the period of suspension would have been much longer.
44 The Tribunal has determined that a period of suspension of
six months is appropriate. A period of suspension of six months shows
the Tribunal's emphatic disapproval.
It is also appropriate that Ms Barber be reprimanded.
46 The Tribunal appreciates the significant personal impact this will
| have on Ms Barber, but a lesser period of suspension would not amount to a significant deterrent to other practitioners. |
| Costs |
47 Notwithstanding the general position stated in s 87(1) of the State Administrative Tribunal Act 2004 (WA), where disciplinary proceedings
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have been commenced in the public interest by a vocational regulatory body and the vocational regulatory body has been successful in those proceedings, ordinarily the affected person should be ordered to pay the costs of the proceedings incurred by the vocational regulatory body:
Legal Practitioners Complaints Committee and Benari
[2005] WASAT 213 (S) at [25].
48 The Committee sought costs of $38,812 inclusive of GST.
Ms Barber did not dispute the costs. The Tribunal has considered the schedule provided by the Committee. The costs sought by the Committee are fair. Ms Barber is ordered to pay the Committee's costs of $38,812.
| Orders |
The Tribunal orders that:
1. Ms Julia Barber is suspended from practice for a period of six months from 14 December 2015. 2. Ms Julia Barber is reprimanded pursuant to s 439(d) of the Legal Profession Act 2008 (WA). 3. Ms Julia Barber is to pay the Legal Profession Complaints Committee's costs of $38,812 by 12 February 2016.
I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J C CURTHOYS, PRESIDENT
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