LEGAL PROFESSION COMPLAINTS COMMITTEE and BOWER
[2017] WASAT 47
•17 MARCH 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: LEGAL PROFESSION COMPLAINTS COMMITTEE and BOWER [2017] WASAT 47
MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)
MS M CONNOR (MEMBER)
MR M HARFORD (SENIOR SESSIONAL MEMBER)
HEARD: 24 AND 25 JANUARY 2017 AND 6 FEBRUARY 2017
DELIVERED : 17 MARCH 2017
FILE NO/S: VR 31 of 2016
BETWEEN: LEGAL PROFESSION COMPLAINTS COMMITTEE
Applicant
AND
RONALD WILLIAM BOWER
Respondent
Catchwords:
Professional misconduct - Inactive cases list - Misleading client - Misleading court - Delay - Incompetence
Legislation:
District Court Rules 2005 (WA), r 37(1), r 38, r 38(1), r 44, r 44(2), r 45, r 45(4)
Legal Profession Act 2008 (WA), s 5(a), s 401, s 401(b), s 402, s 403, s 438, Pt 13
Result:
Practitioner found to have engaged in professional misconduct
Summary of Tribunal's decision:
The Legal Professional Complaints Committee alleged that a legal practitioner and the principal of a legal firm, Corser & Corser, engaged in professional misconduct within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) in relation to the practitioner's handling of the files of two clients during proceedings in the District Court of Western Australia.
The allegations against the practitioner in relation to the two clients involved delays on the practitioner's and the legal firm's part, and the practitioner's efforts to conceal those delays. In particular, serious allegations were made concerning the practitioner's conduct in relation to four affidavits filed at the District Court during the proceedings of these two matters, three of those affidavits having been filed by an employee of Corser & Corser and one by the practitioner.
The Tribunal determined that the practitioner engaged in professional misconduct and that the practitioner had an actual knowledge that the contents of the affidavits and his communications with his clients were false and misleading and that the practitioner had a subjective intent to deliberately mislead his clients and the District Court of Western Australia.
Category: B
Representation:
Counsel:
Applicant: Ms PE Cahill SC and Mr N Pope
Respondent: Mr G McIntyre SC and Mr R Cywicki
Solicitors:
Applicant: Legal Profession Complaints Committee
Respondent: N/A
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Giudice v Legal Profession Complaints Committee [2014] WASCA 115
Legal Profession Complaints Committee and Barber [2015] WASAT 99
Legal Profession Complaints Committee and Wells [2014] WASAT 112
Legal Profession Complaints Committee v Brickhill [2013] WASC 369
NOM v Director of Public Prosecutions (2012) 38 VR 618
Rayney and Legal Practice Board of Western Australia [2016] WASAT 7
Rejfek v McElroy (1965) 112 CLR 517
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The Legal Professional Complaints Committee (Committee) alleged that Mr Ronald William Bower engaged in professional misconduct within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) (the LP Act), in that his conduct fell short, consistently and by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence in relation to his handling of the files of two clients, Mr Mahendra Pal and Settlers House Pty Ltd (Settlers House).
The Committee filed its application on 11 March 2016. The allegations against Mr Bower in relation to Mr Pal were set out at Annexure A to the application. The grounds in relation to Settlers House were set out in Annexure B to the application.
In a large part, the allegations against Mr Bower in relation to both Mr Pal and Settlers House involve delays on Mr Bower's and Corser & Corser's part and Mr Bower's efforts to conceal those delays.
The Committee's grounds
The Committee filed its application on the following grounds:
Annexure A Ground 1
THAT the practitioner RONALD WILLIAM BOWER [Mr Bower] in about April 2011 engaged in professional misconduct within the meaning of sections 403 and 438 of the Legal Profession Act 2008 (Act), in that his conduct fell short, consistently and by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by causing, alternatively permitting, an affidavit to be prepared, sworn and filed in District Court of Western Australia proceedings CIV 256 of 2010 (proceedings) in circumstances where:
a.[Mr Bower] knew the affidavit to be false or misleading in a material respect;
b.[Mr Bower] intended that the District Court be misled by the affidavit;
c.alternatively to a and b, [Mr Bower] was recklessly indifferent to whether the affidavit was false or misleading in a material respect and to whether the District Court was misled by the affidavit.
Annexure A Ground 2
THAT [Mr Bower] in about August 2010 engaged in professional misconduct within the meaning of sections 403 and 438 of the Act, in that his conduct fell short, consistently and by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by deliberately, alternatively recklessly, permitting an e-mail sent to a client, Mr Mahendra Pal, about the status and progress of the proceedings to remain uncorrected in circumstances where:
a.[Mr Bower] knew the e-mail to be false or misleading in material respects;
b.[Mr Bower] intended that Mr Pal be misled about the true status and progress of the proceedings;
c.alternatively to a and b, [Mr Bower] was recklessly indifferent to whether the e-mail was false or misleading in material respects and to whether Mr Pal was misled about the true status and progress of the proceedings.
Annexure A Ground 3
That [Mr Bower] between about November 2010 and May 2011 engaged in professional misconduct within the meaning of sections 403 and 438 of the Act, in that his conduct fell short, consistently and by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by sending e-mails to Mr Pal, about the status and progress of the proceedings in circumstances where:
a.[Mr Bower] knew the e-mails to be false or misleading in material respects;
b.[Mr Bower] intended to mislead Mr Pal about the true status and progress of the proceedings;
c.alternatively to a and b, [Mr Bower] was recklessly indifferent to whether the e-mails were false or misleading in material respects and to whether Mr Pal was misled about the true status and progress of the proceedings.
Annexure A Ground 4
THAT [Mr Bower] between about May 2010 and April 2011 engaged in professional misconduct within the meaning of sections 403 and 438 of the Act, in that his conduct fell short, consistently and by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by failing to take reasonable steps as the principal of the law firm retained by Mr Pal in respect of the proceedings to ensure that the proceedings were progressed without undue delay.
Annexure A Ground 5
THAT [Mr Bower] between about June 2010 and November 2011 engaged in professional misconduct within the meaning of sections 403 and 438 of the Act, in that his conduct fell short, consistently and by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by failing to take reasonable steps as the principal of the law firm retained by Mr Pal in respect of the proceedings to ensure that:
a.Mr Pal was given timely, accurate and complete information about the significant developments and progress in the proceedings;
b.Further or alternatively to a., Mr Pal was informed:
i.that a representative of the law firm did not appear at a directions hearing held in the proceedings on 30 July 2010 and that consequently the court had made a costs order against Mr Pal;
ii.whether there was any basis for Mr Pal to apply to the court to have that costs order set aside or varied;
iii.that the law firm had not complied with the directions made by the court for the filing of pleadings;
iv.that the proceedings had become inactive on about 20 November 2010 and why;
v.of the consequences of the proceedings having become inactive.
Annexure A Ground 6
THAT [Mr Bower] in about July 2011 engaged in professional misconduct within the meaning of sections 403 and 438 of the Act, in that his conduct fell short, consistently and by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by issuing an invoice to Mr Pal which included fees charged for work undertaken in applying to the District Court pursuant to Rule 45 of the District Court Rules 2005 to, in effect, order that the proceedings were no longer inactive in circumstances where the proceedings had become inactive because of undue delay by the law firm retained by Mr Pal in respect of the proceedings, of which [Mr Bower] was the principal.
Annexure B Ground 1
THAT the practitioner RONALD WILLIAM BOWER [Mr Bower] in about May 2011 engaged in professional misconduct within the meaning of sections 403 and 438 of the Legal Profession Act 2008 (Act), in that his conduct fell short, consistently and by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by omitting to inform, or not attempting to inform, the District Court that two affidavits sworn and filed in District Court of Western Australia proceedings CIV 2534 of 2009 were or may be false or misleading in material respects in circumstances where:
a.[Mr Bower] knew the affidavits to be false or misleading in a material respect or in material respects;
b.[Mr Bower] intended that the District Court be misled by the affidavits;
c.alternatively to a and b, [Mr Bower] was recklessly indifferent to whether the affidavits were false or misleading in a material respect or material respects, and to whether the District Court was misled by the affidavits.
Annexure B Ground 2
THAT [Mr Bower] in about May 2011 engaged in professional misconduct within the meaning of sections 403 and 438 of the Act, in that his conduct fell short, consistently and by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by swearing to an affidavit and causing it to be filed in District Court of Western Australia proceedings CIV 2534 of 2009 in circumstances where
a.[Mr Bower] knew the affidavit to be false or misleading in material respects;
b.[Mr Bower] intended that the District Court be misled by the affidavit;
c.alternatively to a and b, [Mr Bower] was recklessly indifferent to whether the affidavit was false or misleading in material respects, and to whether the District Court was misled by the affidavit.
Onus and standard
The Committee bears the onus of proof. In Legal Profession Complaints Committee and Wells [2014] WASAT 112 at [8] and [9] the Tribunal stated:
The Committee bears the onus of proof. It is to the civil, not criminal standard but the principles of Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.
By reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts in determining whether or not the case against the practitioner is made out: Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [144].
(See also Rejfek v McElroy (1965) 112 CLR 517 (Rejfek))
In Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) at 362, Dixon J, as he then was, observed '[i]n such matters ''reasonable satisfaction'' should not be produced by inexact proofs, indefinite testimony or indirect inferences'.
The standard of proof required in a civil case where serious allegations are made was stated in Rejfek where Barwick CJ, Kitto, Taylor, Menzies and Windyer JJ observed at 521 that:
The 'clarity' of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved. …
But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused.
In NOM v Director of Public Prosecutions (2012) 38 VR 618 at [124], the Victorian Court of Appeal stated:
… mere mechanical comparison and probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found. Where, as in the present case, the standard of proof is to be applied to circumstantial evidence, satisfaction as to a reasonable and definite inference is required.
All findings made by the Tribunal are on the balance of probabilities applying the Briginshaw approach.
In making its findings in relation to Mr Bower's conduct in relation to affidavits filed at the District Court, the Tribunal is particularly conscious of the seriousness of such allegations.
Purposes of Part 13 of the LP Act
Section 401 of the LP Act provides that the purposes of Pt 13 Complaints and discipline are:
The purposes of this Part are as follows
(a)to provide for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;
(b)to promote and enforce the professional standards, competence and honesty of the legal profession;
(c)to provide a means of redress for complaints about lawyers.
Professional misconduct
'Professional misconduct' is defined by s 403 of the LP Act inclusively 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.
Unsatisfactory professional conduct
Section 402 of the LP Act provides:
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.
The authorities
In Rayney and Legal Practice Board of Western Australia [2016] WASAT 7, the Tribunal stated at [17][20]:
Fitness to practise law requires that the practitioner must command the personal confidence of clients, fellow practitioners and judges see: In re Davis (1947) 75 CLR 409 (In re Davis) at 420; Legal Profession Complaints Committee v Bachmann [2011] WASC 309 at [46]; Dixon v Legal Practice Board of Western Australia [2012] WASC 79 (Dixon) at [19].
Unprofessional conduct includes conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, which includes, but is not confined to, conduct which occurs in the course of legal practice (Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56 at [61]).
The assessment of fitness and propriety in legal practitioners involves a range of broad public interest considerations. The relevant interests are the interests of the public, the interests of the Court and the maintenance of the high reputation and standards in the legal profession (Dixon at [27]).
In Prothonotary of the Supreme Court of New South Wales v Da Rocha [2013] NSWCA 151 (Prothonotary) the Court stated at [29]:
In Foreman, the Court of Appeal indicated that in determining whether someone is a fit and proper person to be a solicitor the relevant considerations may include: the protection of the public against similar conduct, the character of the solicitor, and the effect which an order will have on the understanding (within the profession and amongst the public), of the standard of behaviour required of solicitors, the effect upon relationships which must exist between solicitors and the circumstances surrounding the impugned conduct.
In Legal Profession Complaints Committee and Barber [2015] WASAT 99 at [26][27], the Tribunal accepted the Committee's submissions as to the principles in relation to a practitioner's duty of disclosure. These are set out below:
Nevertheless, it is a basic precept of the legal profession that lawyers owe a duty of honesty and candor to the court. It is the general duty of lawyers not to mislead the court by stating facts which are untrue, or mislead the judge as to the true facts, or conceal from the court facts which ought to be drawn to the judge's attention, or knowingly permit a client to deceive the court: Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190 at 193; Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56 at [6], [12], [13], [23], [66] - [67]; Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 at [61]; Giudice v Legal Profession Complaints Committee [2014] WASCA 115 at [100].
The duty not to mislead the court is of fundamental importance in the due administration of justice, and is paramount and overrides any duty to the client: Kyle v Legal Practitioners Complaints Committee (supra) at [19], [23], [66].
It is a breach of that duty for a lawyer to produce a witness statement that the lawyer knows to be false or if the lawyer knows that the witness does not believe the statement to be true in all respects. The duty to correct a false witness statement continues after it is filed. Kyle v Legal Practitioners Complaints Committee (supra) at [13], [23].
Although expressed in terms of a duty to the 'court', there is no question that duty applies with equal force to proceedings in the Tribunal: see eg Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at 200 (see also definition of 'court' in the Professional Conduct Rules in force at the relevant time).
The duty not to 'mislead' the court or tribunal is not limited to positive lies or misstatements. Half-truths, implying a false state of affairs, the creating of a misleading impression, or allowing the client to mislead the court will also be a breach of the duty: Kyle v Legal Practitioners Complaints Committee (supra) at [12], [23]; Vogt v Legal Practitioners Complaints Committee (supra) at [48]; Forster v Legal Services Board [2013] VSCA 73 at [161].
A practitioner's duty is not merely to not deceive the court or tribunal. He_0or she must be fully frank in what he or she does before it. This obligation takes precedence over the practitioner's duty to the client, to other practitioners and to himself or herself: Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 447.
Similarly, In Re Thom (1918) 18 SR (NSW) 70, Cullen CJ (with whom the other two members of the Full Court agreed) said (at 74 75):
'It is of the greatest importance than any mere casuistry in the presentation of evidence should be strictly avoided by those entrusted with the responsible duties of a legal practitioner. It is perhaps easy by casuistical reasoning to reconcile one's mind to a statement that is in fact misleading by considering that the deponent is not under any obligation to make a complete disclosure. By this means a practitioner may be led into presenting a statement of fact which, although it may not be capable of being pronounced directly untrue in one particular or another, still presents a body of information that is misleading, and conceals from the mind of the tribunal the true state of facts which the deponent is professing to place before it. For that reason it is proper on such an occasion as this to express condemnation of any such casuistical paltering with the exact truth of the case.'
In Legal Profession Complaints Committee v Brickhill [2013] WASC 369, the Full Court stated at [21]:
Integrity and honesty are essential characteristics expected of a practitioner, and therefore, the court has generally taken a very serious approach when dealing with dishonesty by a practitioner: Brennan [15]; Legal Profession Complaints Committee v Bachmann [2011] WASC 309 [47] (Martin CJ, EM Heenan and Jenkins JJ); Legal Practitioners Complaints Committee v Palumbo [2005] WASCA 129 [22] - [23] (Steytler P, Wheeler and McLure JJA agreeing); Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 [69] (Parker J); Re Maraj (25) (Malcolm CJ, Kennedy and Franklyn JJ agreeing). In Barristers' Board v Darveniza, Thomas JA observed that:
[T]he quality most likely to result in striking off is conduct which undermines the trustworthiness of the practitioner, or which suggests a lack of integrity or that the practitioner cannot be trusted to deal fairly within the system which he or she practices [33].
The requisite intent
In Giudice v Legal Profession Complaints Committee [2014] WASCA 115, Martin CJ stated at [8]:
As this court has pointed out [Fidock v Legal Profession Complaints Committee [2013] WASCA 108] when a practitioner provides information or makes a statement to a court which is false or misleading, there are (at least) three categories of case in which that conduct will constitute either professional misconduct or unsatisfactory professional conduct. First, the practitioner might know that the statement or information is false or misleading. Second, the practitioner might have a reckless disregard to the question of whether the statement or information is false or misleading, and third, the practitioner might be negligent or careless. Because the first two categories will only apply if, assessed subjectively, the practitioner is either aware that the statement or information is false or misleading, or wilfully indifferent to its truth, in the absence of special circumstances one would ordinarily expect a finding of either category of conduct to be characterised as a substantial departure from the standards of conduct reasonably expected of a practitioner such as to constitute professional misconduct, within the taxonomy of the Act[.]
Where the Tribunal has made findings as to Mr Bower's knowledge and intent below, the Tribunal has found actual knowledge by Mr Bower and a subjective intent by Mr Bower to mislead his client and the Court.
A practitioner's duty of honesty
As the authorities set out above make clear, when a practitioner provides information or makes a statement to a court which is false or misleading in the absence of special circumstances, he/she would ordinarily expect to be found to have engaged in professional misconduct.
Section 401(b) of the LP Act makes it clear that the promotion and enforcement of honesty is an important purpose of Pt 13 of the LP Act. That purpose exists not only in the interests of the administration of justice but also the protection of clients. Accordingly, honesty to clients is an important aspect of a practitioner's duty. Integrity and honesty are essential characteristics expected of a practitioner. Honesty to a client by a practitioner is part of a practitioner's conduct which preserves the integrity of the legal system within which a practitioner operates.
Depending on the circumstances, a practitioner who breaches his or her duty of honesty to a client by providing information or making a statement to a client which is false or misleading may constitute professional misconduct. The likelihood of a finding of professional misconduct is increased when the practitioner provides information or makes a statement to a client to conceal the practitioner's own default or that of the firm for which he or she is responsible.
District Court Rules 2005 (WA) Entry for Trial and Inactive Cases
As at 31 July 2007, the District Court Rules 2005 (WA) (DCR) relevantly provided:
38.Plaintiff failing to enter case for trial, consequences
(1)If the plaintiff does not enter the case for trial on or before the date for entry for trial in the timetable applicable to the case, the relevant registry must send each party a Form 2 (Notice of default (entry for trial)).
(2)At any time after receiving a Form 2, a party, other than the plaintiff, may enter the case for trial.
(3)Rule 37(3), with any necessary changes, applies if a party other than the plaintiff enters the case for trial.
(4)If a party other than the plaintiff enters the case for trial, then, for the purposes of completing Form 1, all other parties (including the plaintiff) are to be taken to be available to attend a pre-trial conference on any date unless notice to the contrary is filed prior to when the date of the pre-trial conference is set.
(5)If under subrule (2) a case is entered for trial at a time when, by virtue of the Form 2 sent to the parties and rule 44(2) the case is inactive, the case ceases to be inactive.
(6)Subrules (2) and (5) do not prevent the plaintiff from complying with rule 44(1) or applying to the Court under rule 45.
44.Notice of default, effect of disobedience to
[Notice of default entry for trial]
(1)If a Form 2 is sent in relation to a case, the plaintiff must, on or before the date specified in the form (which must be at least 14 days after the date of the form), enter the case for trial.
(2)If a plaintiff does not obey a Form 2, the case becomes inactive.
45.Inactive cases, consequences
(1)This rule applies if a case is inactive under rule 44(2).
(2)The plaintiff must not file a Form 1 to list the case for trial or any other document (other than an application under subrule (3)) without the leave of the Court.
(3)Within 21 days after the date specified in a Form 2, the plaintiff must apply for leave to list the case for trial or to be excused from doing so.
(4)If
(a)no application is made under subrule (3): or
(b)on an application made under subrule (3), leave is refused or the plaintiff is not excused,
a party that is not in default may apply for judgment in that party's favour to be entered without a trial.
(5)If the Court grants leave on an application made under subrule (3) and is satisfied that there is no reason for the case to be inactive, it must order that the case is no longer inactive.
The evidence
Three volumes of documents prepared by the Committee were admitted into evidence as Exhibits A, B and C. A further document was admitted as Exhibit E.
Mr Bower's witness statement was admitted into evidence as Exhibit D. Mr Bower gave oral evidence and was crossexamined.
Mr Bower's evidence
Mr Bower denied that he endeavoured to conceal his and Corser & Corser's delay from his client and from the Court.
Mr Bower was an entirely unsatisfactory witness. He made assertions without any factual basis. He was evasive. In the majority of cases, the concessions made by him were made only after persistent questioning by Cahill SC. A less experienced counsel than Cahill SC would probably not have wrung the concessions out of Mr Bower. His demeanour reflected a high level of uneasiness in answering questions. The Tribunal did not find him to be a credible witness.
The inactive cases list and Mr Bower's letter of 30 March 2011
In a letter from Mr Bower to Professor Skerritt dated 30 March 2011, requesting a medical report in support of an application to take the Settlers House matter off the inactive cases list, Mr Bower stated:
…
There are two District Court cases that Mr Savas has been handling which have fallen behind in compliance with procedural timelimits, with potentially seriously adverse consequences for the clients concerned.
…
Request for urgent response
As a result of the imminence and seriousness of the potentially adverse consequences upon the two cases which the delays have caused, I request that you reply at your earliest convenience.
….
(Exhibit B pages 354355)
This statement was made by Mr Bower long before any issue was raised about his conduct. There could be no clearer indication of the fact that Mr Bower regarded a matter going on the inactive cases list as having potentially serious consequences and the importance of an application to remove a matter from that list.
Despite what Mr Bower stated in his letter to the Committee and in his evidence before the Tribunal, Mr Bower's letter of 30 March 2011 contradicts those statements. The statement made by Mr Bower in his letter of March 2011 reflects his true understanding of the seriousness of a matter going on the inactive cases list and the need to remove it from the inactive cases list.
Mr Bower's practice
Mr Bower was admitted to legal practice in Western Australia on 23 December 1983.
At all relevant times Mr Bower was:
a)an Australian legal practitioner within the meaning of s 5(a) of the LP Act and;
b)the sole principal of the law firm Corser & Corser.
Mr Kerry Savas was a practitioner employed by Corser & Corser. He held the title of 'associate'.
Mr Savas became involved in the conduct of the two files the subject of this application in about mid 2010 when Mr Bower was going on leave. His involvement ceased no later than 30 March 2011, although he did swear affidavits relating to his previous involvement in the files thereafter.
Other employees of Corser & Corser during the relevant periods were:
•Chau Savas;
•Travis King;
•Andrew Cameron;
•Hugh Reynoldson;
•Michelle Collins;
•Amy Hackett;
•Leslie Bower; and
•Andrew Bower.
Apart from Kerry Savas and Chau Savas who were sufficiently senior to have the daytoday conduct of matters, the other employees were either junior practitioners or law clerks (T:36; 24.01.17).
Mr Bower's supervision of employees
At an early stage in his evidence, Mr Bower explained that his supervision:
.. took the form of - well, one form of supervision was what a former partner of mine called 'management by walking around'. This wasn't a big practice. There were - there was myself and a small number of professional people located in a close physical proximity, so that I I informed myself of what people were dealing with, and checked on - asked them how things were going, basically, depending on what they working on. Also we operated then, as we do now, a single diary, a computerised diary, for everything that was relevant to client work - appointments with clients, appointments with witnesses, appointments with council, court appointments, deadlines.
Court deadlines you included in that?
Yes, and - yes, and others, like limitation periods. Of course, that kind of system is dependent on human input, but that was part of the - the management system that I had in place, which had been there for years. It just was a - it happened to be that in those two years, I didn't have any partners. I had meetings with practitioners individually and in - as a group from time to time to find out what was going on in terms of - well, usually, my - my question was, is everything being attended to as and when it needs to be? My personal approach to practice has always been that if a client provides instructions, then unless it's critically urgent, the - a practitioner should resolve to deal with it within a week, simply as a - as a practice, a consciously adopted means of managing yourself and your time. I think the practitioners then working for me knew that. We also had, and still do use, electronic time recording, which took the form of - it was a kind of regulation or management tool as much as anything else.
So you checked how much time people were spending working?
Well, it - yes, I could look it up in the computer system and - - -
And presumably you would have done that reasonably regularly for time management and budgetary purposes?
Yes. Well, I was going to say that - - -
At least monthly?
Absolutely, yes and yes quite right.
(T:3536; 24.01.17)
When it was put to Mr Bower that between 30 September 2010 and midNovember 2010, he must have checked Mr Savas' time records on at least two occasions, he stated that if the firm issued invoices in that period, he would have looked at it but not otherwise (T:85; 24.01.17). The Tribunal notes that the latter answer was a substantial retreat from 'absolutely' checking how much time people were spending 'at least monthly' to when he issued invoices but not otherwise checking. The Tribunal finds that Mr Bower did check how much time people were spending, at least monthly.
The organisation of these reasons
In order to help explain Mr Bower's conduct, the Tribunal has dealt with the Pal matter and the Settlers House matter separately. It is important to appreciate that in fact the two matters were handled by Mr Bower and Corser & Corser over a substantially similar time period. They are factually intertwined, partially in relation to Mr Bower's knowledge of the inactive cases list and Mr Savas' performance.
The Pal matter
From about 12 November 2009, Corser & Corser was retained by Mr Pal in relation to a dispute with Mr Pal's previous employer, Fairstar Resources Limited (Fairstar) arising from the termination of Mr Pal's contract of employment. Mr Bower initially had the daytoday conduct of the file (T:41; 21.01.17).
Mr Bower accepted that it should have been a fairly simple matter (T:43; 21.01.17). On 12 November 2009, Corser & Corser sent a letter of demand to Fairstar (Exhibit A pages 1112).
Fairstar was represented by Mr Ross Gillon of Lawton Gillon. Mr Gillon, on behalf of Fairstar responded to the letter of demand by telephoning Mr Bower on 2 December 2009 (Exhibit A page 21).
On 2 December 2009, Corser & Corser invoiced Mr Pal for $780.20 (Exhibit A pages 1617).
On 11 December 2009, Lawton Gillon replied in writing to the letter of demand with an offer of settlement (Exhibit A pages 2425). There were various exchanges of telephone calls and emails. The parties did not reach agreement. Given the Christmas/summer break, it cannot be said that Fairstar and Lawton Gillon had employed delaying tactics.
Mr Bower accepted that once he resolved to commence proceedings, his objective was to commence proceedings and prosecute them with minimum possible delay to force Fairstar to the bargaining table (T:43; 24.01.17; Exhibit A page 63).
The Tribunal notes that on 24 February 2010, the District Court had issued a default notice to Corser & Corser because of its failure to enter the Settlers House matter for trial by 23 February 2010 (Exhibit B page 60). Almost from the commencement of the Pal court proceedings, Mr Bower was well aware of the inactive cases list by reason of the Settlers House matter.
Corser & Corser filed a writ of summons on 29 January 2010 to commence District Court of Western Australia proceedings CIV 256 of 2010 on behalf of Mr Pal as plaintiff (Pal Action).
On 29 July 2010, Corser & Corser invoiced Mr Pal in the amount of $512.20 for disbursements only (Exhibit A page 51).
A directions hearing was held on 5 March 2010 at which the following orders were made (Exhibit A page 60):
1.The Plaintiff to file and serve a Statement of Claim by 19 March 2010;
2.The defendant to file and serve a Defence by 9 April 2010;
3.A further pretrial conference is ordered for 21 April 2010 at 9.30 am;
4.Directions hearing adjourned until 21 April 2010 at 9.30 am for a mention; and
5.Costs be in the cause.
Corser & Corser filed a statement of claim, on time, on 19 March 2010 (Exhibit a pages 6569).
Corser & Corser filed an amended statement of claim on 22 March 2010 (Exhibit A pages 7882).
On 7 April 2010, Corser & Corser invoiced Mr Pal for $2,745.77.
Fairstar filed its defence, two days early, on 7 April 2010. This was despite the filing of an amended statement of claim. Mr Bower did not suggest that there was any delay by Fairstar in filing its defence (T:46; 24.01.17).
The District Court issued a case management timetable on 7 April 2010 which fixed the following dates:
EVENT
DATE FOR COMPLIANCE
Entry for Trial
5 August 2010
Pretrial Conference
14 September 2010
Listing Conference
24 October 2010
Trial
22 January 2011
Judgment
2 April 2011
Mr Bower's evidence was that he would have noted this timetable (T:47; 24.01.17).
On 8 April 2010, Mr Pal sent an email to Mr Bower stating 'I would like you to attend my case' (Exhibit A page 95). Mr Bower accepted that he understood that Mr Pal would want him to remain in charge of the case and take responsibility (T:48; 24.01.17).
Mr Bower became aware that there was a pretrial conference on 21 April 2010 from the diary (Exhibit A page 103). On 13 April 2010, Mr Bower enquired of Mr Savas as to why a pretrial conference had been listed before entry for trial (Exhibit A page 100).
Mr Bower attended the pretrial conference with Mr Savas on 21 April 2010. The action was not resolved and the action was listed for a directions hearing on 17 May 2010 (Exhibit A page 109). The listing of the pretrial conference of 21 April 2010 had no significant effect on the progress of the matter. There is no basis for suggesting otherwise. The case management timetable issued on 7 April 2010 fixed the entry trial date on 5 August 2010, that is, within the standard 120 days.
Following the pretrial conference, Fairstar made a further offer. The letter of offer, as one would expect, identified what Fairstar saw as problems with Mr Pal's case (Exhibit A pages 112118). It is difficult to imagine a case where, at some stage, a party would not seek to identify weaknesses in the opposing party's case to that party. Suggesting weaknesses in the other party's case does not constitute delaying tactics.
Mr Savas first became involved in the Pal matter on around 17 May 2010 (T:42, 45; 24.01.17; Exhibit C page 5).
At the directions hearing held in the Pal Action on 17 May 2010, attended by Mr Savas on behalf of Corser & Corser, the District Court ordered (17 May order) that:
1)Mr Pal exchange [with Fairstar] any minute of proposed amended statement of claim by 18 June 2010 [paragraph 1];
2)A further directions hearing in the matter be listed for 25 June 2010 at 2:30 pm [paragraph 2]; and
3)The costs of the directions hearing be in the cause [paragraph 3].
(Exhibit A pages 122123)
By email dated 18 May 2010, Mr Savas, informed Mr Bower of the contents of the 17 May order.
In Mr Savas' email to Mr Bower in relation to his attendance on 17 May 2010, he asked Mr Bower if he required anything further from him (Exhibit A page 122). Mr Bower responded to that email on 19 May 2010. The email relevantly stated:
…
Question: who can examine these issues, to (1) draft a settlement proposal that addresses Ross Gillon's arguments, and (2) draft an amended statement of claim. [I should have another look thru the file to remind myself of what I was planning to amend, but if there is any strength in Gillon's argument that some items are simply unlawful and unenforceable, then we need to amend the statement of claim to take them into account.]
…
(Exhibit A page 121122)
It is clear that Mr Bower knew the contents of the 17 May order, despite raising the question of who should examine those issues. He also noted that he should have another look through the file. Mr Bower failed to do anything about the draft amended statement of claim at that time.
Mr Savas was on annual leave from 24 to 26 May 2010.
Mr Bower accepted that as the person with the daytoday conduct of the file, it was his responsibility to ensure that the proposed amended statement of claim was exchanged by 18 June 2010 (T:53; 24.01.17). It was not.
On 31 May 2010, Corser & Corser invoiced Mr Pal for $349.13 (Exhibit A page 127).
Mr Savas' next recorded involvement in the Pal matter was on 1 June 2010 'Drafting letter of response and demand regarding offer' (Exhibit C page 5).
On 2 June 2010, Mr Pal accepted Mr Bower's recommendation of a counteroffer of $160,000 (Exhibit A page 129).
On 3 June 2010, Mr Bower sent Lawton Gillon a counteroffer of $160,000 (Exhibit A page 131132).
On 4 June 2010, Lawton Gillon wrote to Corser & Corser reminding them that the minute of proposed amended statement of claim was to be filed by 18 June 2010 (Exhibit A page 134). At that time, Mr Bower had the daytoday management of the Pal matter.
Lawton Gillon's letter is inconsistent with any intention on their part to delay the matter. To the contrary, it is evidence that Lawton Gillon wished the orders to be adhered to by Corser & Corser (see below).
Corser & Corser:
a)did not comply with paragraph 1 of the 17 May order;
b)did not apply to the District Court for an extension of time within which to file and serve an amended statement of claim; and
c)filed and served an amended statement of claim on about 19 August 2010.
Mr Savos did not record any time on any file on June 4, 7, 8, 9, 11 or 15 of 2010.
On any view, Mr Bower was responsible for substantial delays in the Pal and Settlers House matters (see below) before Mr Savas had the daytoday carriage of the matters.
On Monday 14 June 2010, Mr Bower went on annual leave and carriage of the matter was transferred to Mr Savas. At the time, Mr Bower went on leave, he had not prepared or caused to be exchanged the proposed amended statement of claim despite the fact that it was due by 18 June 2010 (T:53; 24.01.17). Until this time, Mr Bower had carriage of the matter.
Mr Bower accepted that as principal of the firm, he retained overall oversight of the matter and responsibility for it (T:54; 24.01.17).
Mr Bower's evidence was that his oversight of the Pal matter after Mr Savas took over the daytoday carriage was to talk to Mr Savas about what was happening and to obtain his advice, and ensure that Mr Savas was dealing with the matter appropriately. Mr Bower stated that when he asked for advice from Mr Savas he did so in the context of the 'walllike attitude' that the other side had manifested while he was attending with the file himself. He stated that he obtained information from Mr Savas as to the priority he was giving to the matter and the progress he was making, or not, depending on what was actually happening between the parties in the proceedings (T:53, 5657; 24.01.17).
Mr Bower accepted that in order to ascertain the progress of the matter, he checked the central diary and had regard to the time recording (T:5556; 24.01.17).
Mr Bower's evidence was that he would have communicated to Mr Savas the need to exchange the proposed amended statement of claim in an informal way by talking to him over the preceding days and referred to what needed attention (T:57; 24.01.17).
There was no documentary evidence to show that any steps had been taken by Mr Bower to prepare a minute of proposed amended statement of claim to exchange with Lawton Gillon or that Mr Bower communicated to Mr Savas the need to prepare and exchange that document by 18 June 2010 (T:57; 24.01.17).
On 15 June 2010, Corser & Corser invoiced Mr Pal for $493.68 (Exhibit A page 135).
On 24 June 2010, Mr Pal emailed Mr Bower stating that he 'presumed [Mr Bower] will attend to [Mr Pal's] case tomorrow' (Exhibit A page 137). Mr Bower did not respond to that email.
Mr Savas did not record any time on any file on 30 June 2010, nor on 12, 15 or 16 July 2010.
On 19 July 2010, Mr Bower received an email from Mr Pal which, relevantly and in substance, sought information about the significant developments and progress in the proceedings to that date and how the proceedings were to be progressed by Corser & Corser in the future. Mr Bower did not respond to that email (Exhibit A page 138). This was the first of many occasions in which Mr Pal complained to Mr Bower about a lack of communication.
On 21 July 2010, Mr Bower's office manager sent Mr Savas an email, copied to Mr Bower, stating '[Mr Pal] said that he had left several messages for you to call him or email him but he hadn't heard anything back. He said that he is still very uneasy about things and would like to be contacted' (Exhibit A page 139). This was the second occasion in which Mr Pal had complained to Mr Bower about a lack of communication.
The District Court held another directions hearing in the Pal Action on 30 July 2010 at which there was no appearance on behalf of Mr Pal. It was not apparent from the evidence what led to the listing of 30 July 2010.
Mr Bower returned to work from leave on 30 July 2010 (T:58; 24.01.17).
Just after Mr Bower returned from leave, that is, from August 2010, Mr Savas only had two or three matters to deal with because Mr Bower had relieved Mr Savas of all but the Pal matter and the Setters House matter and possibly one other because of Mr Savas' unexplained ill health and absences (T:7576; 24.01.17). It was obvious from Mr Bower's own actions that he was concerned about Mr Savas' performance.
Mr Bower's evidence was that on about 30 July 2010, he believed he had a conversation with Mr Savas to the effect that the minute of proposed amended statement of claim had been filed on or about 18 June 2010 (T:59; 24.01.17). There is no documentary record of any such conversation.
Lawton Gillon faxed a letter dated 30 July 2010, which relevantly informed Corser & Corser of the orders made by the Court at that day's directions hearing, namely that:
a)Fairstar was to serve a minute of proposed amended defence and counterclaim by 20 August 2010;
b)the directions hearing was adjourned to 3 September 2010 at 2.30 pm; and
c)Mr Pal was to pay Fairstar's costs of 30 July 2010 with liberty to apply.
(Exhibit A page 140)
Mr Bower's evidence was that he must have received that letter at that time but that he did not remember reading that letter when he was going through the material in the days before the Tribunal hearing (T:58; 24.01.17). However, he later resiled from that admission. He 'suspected' that the 30 July 2010 directions hearing, referred to in Lawton Gillon's letter of 30 July 2010 'just didn't come to my attention (T:61; 24.01.17).
Corser & Corser did not inform Mr Pal, either promptly or at all:
1)that it had not complied with the 17 May order;
2)that there had been no appearance on his behalf at the directions hearing on 30 July 2010;
3)of the orders made by the District Court at the 30 July directions hearing;
4)in particular, that the District Court had ordered Mr Pal to pay Fairstar's costs of 30 July 2010;
5)whether there was any basis for Mr Pal to apply to the District Court to have that costs order set aside or varied.
Had Mr Pal been informed that a court order had been made against him, he would obviously have been alarmed at Corser & Corser's, and in particular, Mr Bower's handling of the file. Given that the order created a costs liability for Mr Pal, the only reason not to inform Mr Pal was to conceal it from him so as to avoid Mr Pal's inevitable questions.
On 6 August 2010, Mr Bower received an email from Mr Pal which, again, relevantly and in substance, complained about a lack of communication from Corser & Corser about the Pal Action since 1 June 2010 and sought information about the significant developments and progress in the proceedings to that date and how the proceedings were to be progressed by Corser & Corser in the future. This was the third occasion on which Mr Pal had complained about the lack of communication.
Mr Pal's email of 6 August 2010 stated, 'With this note I am asking you to please look into the matter and inform me ASAP about the case, what has been done to date, and future line of action'. Mr Bower did not respond to that email (Exhibit A page 143).
The costs order of 30 July 2010 was a significant development. There is no question that Mr Bower should have informed Mr Pal.
Mr Bower's evidence was that he spoke to Mr Savas about his concern that this kind of message was coming in. He said Mr Savas assured him that he was attending to what needed to be done on the matter (T:5960; 24.01.17). There is no documentary record of such a conversation.
By this point, Mr Bower knew that neither he nor Mr Savas had communicated with Mr Pal since 1 June 2010, a period of over two months. Mr Bower had been on leave and Mr Savas had the daytoday carriage of the matter for most of that time. Mr Bower knew, by reason of Mr Pal's emails, that Mr Savas was not communicating with Mr Pal. Allied with Mr Bower's concerns about Mr Savas' performance that led him to relieve Mr Savas of all but two or three files, Mr Bower had concerns about Mr Savas' handling of the file at the time.
Mr Bower conceded that on or about 6 August 2010, he must have appreciated that the entry for trial milestone was sometime in early August 2010 (T:65; 24.01.17). Mr Bower later sought to resile from that admission (T:66; 24.01.17). When pressed, Mr Bower then conceded that he would have been aware of the date of entry for trial via the central diary (T:67; 24.01.17). This is but one example of Mr Bower's evasiveness in answering questions.
Mr Bower accepted that at some point he must have become aware that the amended statement of claim had not been filed (T:6061; 24.01.17).
On 12 August 2010, Corser & Corser received a notice from the District Court dated 6 August 2010, advising of a default in the entry for trial and requiring entry by 21 August 2010 (Exhibit A page 145).
At this point in his crossexamination, Mr Bower again raised his proposition that the delay by Corser & Corser was due to the conduct of Lawton Gillon. The following exchange took place:
You didn't wish to disclose to him that the 30 July directions hearing had resulted in a costs order against him because of a non-attendance by your firm? No. I'm - I'm sure if I knew that that had occurred I would remember it, and I don't. And I - I suspect that that just didn't come to my attention. As to giving, or responding to Mr Pal's email, I didn't - it's not correct to say that I didn't want to respond because I didn't want to tell him that something hadn't been filed that should have been. My - I - I - I suspect that - well, probably my immediate response would have been to remonstrate with Mr Savas and say, 'Well, we're going to get this done', once I have discovered that it hadn't occurred, and - or, however, may I say this. All of this occurred in - in the background of the fact that this case was always going to be, sort of, an unhappy one. That is, the other side was pretty feisty and if deadlines weren't met, then it may have been because there had been quite vigorous interactions between the parties, be it about settlement or - or - - -
You've got no basis for saying that in relation to the amended statement of claim, have you, Mr Bower? No, not specifically, but my own - - -
Well - - - ? My - -
Not at all? Well, no, I don't - I don't, with respect, agree. I had - I had had some months of involvement and I had experienced, personally, the - the style of activity and expression engaged in by the lawyers on the other side in - and in - and the party in the mediation that had occurred at the court, and I - and Mr Pal repeatedly described to us the - the unpleasantness of the relationship. And so when, from time to time, I spoke to Mr Savas and he assured me that things were in order, I - I took that to mean things are in order in the context of the - of a, sort of, difficult relationship between the parties.
(T:6162; 24.01.17)
The Pal writ had been issued on 29 January 2010. The Pal Statement of claim was filed on 19 March 2010. Fairstar had filed its defence two days early. It was Corser & Corser who failed to comply with paragraph 1 of the 17 May order, despite being reminded by Lawton Gillon. Lawton Gillon attended the directions hearing on 30 July 2010 which Corser & Corser failed to attend. Lawton Gillon informed Corser & Corser of the orders made. There is simply no evidence to support Mr Bower's assertion that Lawton Gillon's conduct had anything to do with Corser & Corser's delay. Lawton Gillon was doing everything required of it by the Court. The failure to comply with the entry for trial date was entirely Corser & Corser's failure. There is no evidence to suggest a 'difficult relationship'.
Mr Bower ultimately conceded that there was nothing Lawton Gillon could have done to cause the two month delay by Corser & Corser in the minimal amendments to the statement of claim (T:63; 24.01.17).
Mr Bower then made the completely baseless proposition that 'it wasn't beyond the realms of possibility that the practitioner in my firm [Mr Savas] had been, somehow, persuaded to postpone the filing of the amended statement of claim' (T:63; 24.01.17).
Mr Bower accepted that there was nothing in the file to support that proposition (T:63; 24.01.17).
When asked by the Tribunal to give an example of the difficulties he was experiencing with Lawton Gillon, Mr Bower gave a convoluted and rambling response. He was unable to explain how Mr Savas could have been persuaded by Lawton Gillon to 'slow down' in the face of Mr Pal's instructions to proceed (T:6365; 24.01.17).
Mr Bower's evidence that the delay was attributable to Lawton Gillon was deliberately untrue. The evidence was given to divert attention from his failures and delays in the Pal matter.
In a letter to the Committee dated 12 June 2013 (Exhibit C pages 3942) Mr Bower stated:
…
Mr Pal's case was then placed on the District Court's inactive list. This occurs solely by operation of the court's computer program. It does not occur as a result of any judicial or administrative consideration of the proceedings. The assumption is often made by those not involved in the proceedings that because no step has been taken on the court record for 12 months, there must be nothing happening between the parties; but that is often wrong. In the present case this firm was attending to Mr Pal's action in the period leading up to the placement of the action on the inactive list.
It is preferable for solicitors who are handling cases that are likely to be treated as inactive to apply to the court for the extension of time periods so that the 'inactive' listing does not occur. The reason to attend to this is because it is an inconvenient nuisance to have to apply to remove the case from the inactive list. There is no risk that a case which is moved onto the inactive list, but in which the parties have actually been active despite the absence of 'on the court record' activity for 12 months, being kept on the inactive list so that the parties cannot proceed with the case. This is borne out by the decided cases; and in addition, the court's judges and registrars are no doubt aware that the fact that the 'inactive list' rules whereby the court computer moves cases to the inactive list with no judicial input could never be permitted to prevent a litigant from proceeding with his or her action.
In Mr Pal's case Mr Savas did not apply for the extension of the deadline so as to avoid the case being placed on the inactive list. That was a mistake on his part, in my view, because it forced us to make the necessary application, which was a distraction which took a small period of time to be resolved.
…
Mr Bower was crossexamined about the proposition in his letter (T:6770; 24.01.17).
Mr Bower gave evidence that:
I am strongly of the view that those applications are never, in my experience, difficult to to resolve in favour of the party wanting to get the case off the off the inactive list. So long as they can explain what the delay has been, why, and express the intention to get on with things in the future, then the court will - - -
And the second thing, and also that it's not opposed with good reason? Yes, but I think it's a long time since anyone seriously tried to oppose one of those.
(T:70; 24.01.17)
Mr Bower's statement simply does not sit with the fact that as at 19 July 2010, Corboy Legal had sent a letter to Corser & Corser that it was not prepared to provide consent to the entry for trial milestone (Exhibit B pages 99100, and see below). The Settlers House matter in fact became inactive on 31 July 2010. The history of the Settlers House matter, set out below, shows that there were significant difficulties in getting that matter off the inactive cases list.
Mr Savas did not record any time on any file on 22 and 25 July and 13 August 2010.
On 19 August 2010, Corser & Corser sought to file an amended statement of claim (Exhibit A pages 151155).
On 19 August 2010, Corser & Corser also sent the amended statement of claim to Lawton Gillon and relevantly stated:
In circumstances where the District Court has issued a notice of default for entry for trial dated 6 August 2010 and your client intends to file and serve a Defence and Counterclaim, we propose the parties execute a minute of consent orders which provides your client with whatever time it requires amend its pleading and extends the entry for trial milestone.
(Exhibit A page 156)
The purport of the letter was that the need for an extension was because of the need for Fairstar to file a counterclaim. There was no mention of the Court's subsequent orders of 30 July 2010.
On 22 August 2010, Mr Savas sent Mr Pal an email (the 22 August email), the contents of which relevantly stated:
I am writing to you to provide an update regarding … [the Pal Action].
On 17 May 2010 the Court made orders regarding the progress of this matter towards trial including an entry for trial date, a latest date for the filing of your amended Statement of Claim, [Fairstar's] amended Defence and any Counterclaim [Fairstar] may wish to bring ... Your part except for the entry of the matter for trial has been done.
Mr Ross Gillon told me last Friday that his Client's counterclaim would be ready within approximately 14 to 21 days. Once we receive the counterclaim we will provide you with a copy and advise you regarding its contents and regarding any action that may be necessary. Certainly if the counterclaim introduces any new matters there will need to be the relevant disclosures given by [Fairstar] and you will have the opportunity to check those disclosures.
In these circumstances the mentioned timeline for entry for trial and completion of pleadings must be extended by approximately 21 days and we propose to do that by way of agreement between the parties so as to negate the need for an extra Court appearance and extra costs.
(Exhibit A page 162)
Mr Savas forwarded a copy of the 22 August email to Mr Bower, and Mr Bower received that copy shortly after the 22 August email was sent to Mr Pal. Mr Bower accepted that he read it on or about 22 August 2010 (T:70; 24.01.17). Mr Bower plainly received it because he saw fit to reply to Mr Savas, 'Oh what a feeling … Mahendra!' (Exhibit A pages 159160).
Mr Bower conceded that as at 22 August 2010, he knew that the defence had been filed on 7 April and that the matter had not been entered for trial. He also conceded that he must have appreciated that the 17 May order had not been complied with (T:7475; 24.01.17).
The Tribunal rejects Mr Bower's evidence that when he read the email of 22 August 2010, he had forgotten that order 1 of the 17 May orders had not been complied with and that there had been a failure to appear on 30 July 2010.
Mr Bower knew of the two month delay in the filing of the amended statement of claim as at 22 August 2010.
Mr Bower conceded that paragraph 18 of his witness statement (Exhibit D) where he stated that:
I had no reason at that time to be concerned about what he [Mr Savas] had told me, about how he was conduction the Pal matter may be inaccurate or incomplete, or that he may not have been properly conducting the matter.
Dr Woodall noted that Mr Bower continued treatment and his level of function improved although complete remission of symptoms was not obtained. However, as the Full Court stated in Love at [63]:
A diagnosis of depression does not, in itself, automatically excuse or mitigate professional misconduct. Apart from anything else, it cannot be assumed that the suffering of any mental illness, including depression, is a cause of any professional misconduct, particularly conduct involving dishonesty. Further, the protective function of these proceedings must be borne in mind, particularly where, as here, the professional misconduct involves dishonesty.
There is no evidence from Dr Woodall to establish any relationship between Mr Bower's depressive illness and his misleading conduct.
The references and Mr Bower's affidavit referred to his pro bono work
The Tribunal accepts that Mr Bower has undertaken pro bono work and contributed to the community by his community and committee work. However, that cannot outweigh the seriousness of Mr Bower's conduct.
The value of references
In Lawyers' Professional Responsibility (6th ed, 2017) Professor G E Dal Pont wrote at pages 777778:
For testimonials to assume any weight, they must be based on a detailed understanding of the conduct that occurred, and informed by a full appreciation of the lawyer's methods, not by opinions based upon a view from days past (Re Melvey (1966) 85 WN (Ft 1) (NSW) 289 at 298 (CA). Cf Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320 at [14], per Young CJ in Eq (who remarked that '[i]t was pleasing to see that in contrast with many cases of this type each of the character referees appears to have been made fully aware, of all the relevant facts and circumstances of the opponent's offence'). Testimonials that disregard known facts, or downplay the seriousness of the misconduct, indicate a diminished capacity to give convincing evidence of good character (Re Bridgman [1934] St R Qd 1 at 7 per Blair CJ; Re Nelson (1991) 106 ACTR 1 at 24 per Higgins and Foster JJ) and so attract little weight. Nor is evidence from a non-legally qualified deponent of great value, for 'it is one thing to speak well of a man whom the deponent has met in social or business circles; it is another to speak of him as to his professional dealings' (Re Melvey (1966) 85 WN (Ft 1) (NSW) 289 at 298 (CA)). Third parties' opinions cannot, in any event, be substituted for the opinion of the tribunal or court (Re Bridgman [1934] St R Qd 1 at 7 per Blair CJ).
Evidence of the lawyer's good reputation and integrity carries greatest weight where the breach is a minor and isolated one, here presenting a compelling case that the lawyer's character as revealed by the breach is entirely out of character (Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 444 per Mahoney JA).
The position is otherwise where the breach is more serious, and especially where it involves repeated dishonesty (Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 448-449 per Mahoney JA. The cases most commonly concerned fraudulent trust account misappropriations: see, for example, Re a Practitioner (1984) 36 SASR 590 at 592 per King CJ, at 593 per Jacobs J; Re Nelson (1991) 106 ACTR 1 at 24 per Higgins and Foster JJ) here, character evidence carries far less weight because a serious breach, and breaches that are repeated, are difficult to explain as other than indicative of a lack of integrity[.]
The Tribunal adopts Professor Dal Pont's writing as a correct statement of the law relating to testimonials/references.
Mr Bower has provided references from 30 people all of whom are aware of the findings against him. Almost all of the references are from present or former legal practitioners. All of the references refer to his good character and conclude that his actions in relation to the matters the subject of the findings in Bower are out of character.
The Tribunal has taken the references into account. However, Mr Bower's breaches are serious and character evidence carries far less weight because a serious breach, and breaches that are repeated, as here, are difficult to explain as other than indicative of a lack of integrity
Aberration
Mr Bower submitted that:
…
24.The above factors support a conclusion that the misconduct which has been found to have occurred, and the dishonesty, in particular, comprise an aberration in the practitioner's usual character of a kind which is unlikely to be repeated: see Vogt -v- Legal Practitioners Complaints Committee [2009] WASCA 202, at [62].
The Tribunal does not accept that Mr Bower's conduct was an aberration. The conduct was not isolated, as discussed above. It was sustained over a period of over a year. It was calculated to serve Mr Bower's selfinterests.
What is an appropriate penalty?
The Tribunal is not satisfied that a period of suspension is appropriate. The Tribunal has concluded that the practitioner will not be fit to resume practice upon completion of any period of suspension,
The Tribunal is satisfied that Mr Bower is not a fit and proper person to be a legal practitioner. Fitness to practice law requires Mr Bower to command the personal confidence of his or her clients, fellow practitioners and judges. Mr Bower's conduct shows that he cannot command that confidence.
The character and conduct of Mr Bower is inconsistent with the privileges of further practice. Mr Bower's conduct establishes that he lacks the integrity and honesty which are essential characteristics expected of a practitioner. The Tribunal has determined that Mr Bower is permanently unfit to practice and that the Tribunal should recommend to a Full Bench of the Supreme Court of Western Australia that his name be removed from the Roll of Practitioners.
Mr Bower's other conduct the subject of the application
In addition to the findings of misleading conduct, the Tribunal found that:
1)Mr Bower failed to take reasonable steps as the principal of the law firm retained by his client in respect of the proceedings to ensure that the proceedings were progressed without undue delay;
2)Mr Bower failed to take reasonable steps as the principal of the law firm retained by his client in respect of the proceedings to ensure that:
a)the client was given timely, accurate and complete information about the significant developments and progress in the proceedings; and
b)the client was informed:
i)that a representative of the law firm did not appear at a directions hearing held in the proceedings on 30 July 2010 and that consequently the Court had made a costs order against the client;
ii)whether there was any basis for the client to apply to the Court to have that costs order set aside or varied;
iii)that the law firm had not complied with the directions made by the Court for the filing of pleadings;
iv)that the proceedings had become inactive on or about 20 November 2010 and why; and
v)of the consequences of the proceedings having become inactive; and
3)Mr Bower issued an invoice to the client which included fees charged for work undertaken in applying to the District Court pursuant to r 45 of the District Court Rules 2005 (WA) to, in effect, order that the proceedings were no longer inactive in circumstances where the proceedings had become inactive because of undue delay by the law firm retained by the client in respect of the proceedings, of which Mr Bower was the principal.
Mr Bower submitted that a penalty by way of a fine would be appropriate for the other conduct.
Any fine for this conduct would be subsumed in an order for striking off.
The misleading conduct, the failure to inform the client and the inappropriate charging are all relevant. Although the delay is a separate issue, it is nevertheless factually intertwined with the other findings.
Given the gravity of the dishonesty findings against the practitioner and the close factual relationship to the other misconduct findings, this is a situation in which it is both convenient and preferable to impose a global penalty: A Legal Practitioner (S) at [18]-[19].
Interim order for suspension
The Tribunal accepts the Committee's contention that Mr Bower is not fit to remain on the Roll of Practitioners and that a report should be transmitted to the Full Bench. It is appropriate for Mr Bower to be suspended from practice pursuant to s 438(3)(a) of the LP Act pending the Full Bench's determination of the question of strike off: in de Braekt at [49].
Costs
Section 87(1) and s 87(2) of the State Administrative Tribunal Act2004 (WA) provide:
Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
In Western Australian Planning Commission v Questdale Holdings PtyLtd [2016] WASCA 32, Murphy JA (Martin CJ and Corboy J agreeing) stated:
46The effect of s 87(1) of the SAT Act is, relevantly, that each party in proceedings before the Tribunal is to bear its own costs, unless the Tribunal otherwise orders.
…
51Section 87(2) is to be construed in the context that the legal rationale for an order for costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. That rationale is evident in s 87(3) of the SAT Act. Accordingly, even in a statutory context where the presumptive position is that no costs will be ordered, generally speaking, the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The onus is on the party seeking an order in its favour.
In Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) (Roberman (S)) at [30], the Tribunal stated:
Section 87(2) gives the Tribunal the discretion to order the payment by a party of all or any of the costs of another party. Where a regulatory authority successfully brings a complaint of conduct which, if proved, justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application. The question of an award of costs is, of course, a matter of discretion to be exercised in the circumstances of each case.
Although the decision in Roberman (S) does not limit the discretion of the Tribunal in awarding costs, the public obligations of the Committee to prosecute practitioners who breach the LP Act is an important factor to be considered.
Mr Bower does not challenge the awarding of costs against him or the quantum.
In the particular circumstances of this case, where many of the costs were incurred by reason of Mr Bower's lack of insight and his persistence in denying the nature of his conduct in communications with the Committee and his conduct before this Tribunal, it is fair and reasonable that the Committee should be reimbursed for the costs it incurred.
The Tribunal has considered the Committee's schedule of costs and is satisfied that they are reasonable. In particular, it was appropriate to brief senior counsel. The Committee has not sought recovery of the time and expense of its solicitors in pursuing the application.
Accordingly, Mr Bower should pay the Committee's costs of $46,325.10.
The Tribunal's order is that Mr Bower pay the Committee's costs by 6 June 2017. It is a matter between the Committee and Mr Bower as to whether he should be given time to pay.
Orders
1.Pursuant to s 438(4)(b) of the Legal Profession Act 2008 (WA) the Tribunal makes and transmits a report on the findings of professional misconduct to the Supreme Court of Western Australia (Full Bench) with a recommendation that the practitioner's name be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008 (WA).
2.Pursuant to s 438(3)(a) of the Legal Profession Act 2008 (WA), the respondent's local practising certificate is suspended 14 days from the date of this order until the determination of the Supreme Court (Full Bench).
3.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 $46,325.10 by 6 June 2017.
I certify that this and the preceding [95] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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