LEGAL PROFESSION COMPLAINTS COMMITTEE and CHANG
[2019] WASAT 67
•9 SEPTEMBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: LEGAL PROFESSION COMPLAINTS COMMITTEE and CHANG [2019] WASAT 67
MEMBER: JUDGE D PARRY, DEPUTY PRESIDENT
MR D AITKEN, SENIOR MEMBER
MS S GILLETT, SENIOR SESSIONAL MEMBER
HEARD: 13 JUNE 2019
DELIVERED : 9 SEPTEMBER 2019
FILE NO/S: VR 51 of 2018
BETWEEN: LEGAL PROFESSION COMPLAINTS COMMITTEE
Applicant
AND
CHRISTINA MARIE CHANG
Respondent
Catchwords:
Vocational regulation - Legal practitioners - Professional misconduct - Practitioner also registered migration agent - Client of practitioner in her capacity as registered migration agent issued notice of demand claiming refund of fees paid in relation to unsuccessful visa application and subsequently commenced minor case proceedings in Magistrates Court against practitioner seeking refund of fees Evidence - Admissibility of evidence Negotiations privilege 'Without prejudice' statements - Whether court documents concerning pre-trial conference and statements made by practitioner at pre-trial conference in minor case proceedings in Magistrates Court not admissible in vocational disciplinary proceedings in State Administrative Tribunal against practitioner arising out of those statements under s 37(2) of Magistrates Court (Civil Proceedings) Act 2004 (WA) - Whether pre-trial conference in minor case proceedings in Magistrates Court is 'compulsory mediation' under Pt 5 of Magistrates Court (Civil Proceedings) Act 2004 (WA) and therefore whether court documents concerning minor case proceedings and statements made by practitioner at pre-trial conference in minor case proceedings 'not admissible in any proceedings before any court, tribunal or body' under s 37(2) of Magistrates Court (Civil Proceedings) Act 2004 (WA) - Whether statements by practitioner at pre-trial conference in minor case proceedings in Magistrates Court not admissible in vocational disciplinary proceedings in State Administrative Tribunal against practitioner arising out of those statements under s 27(3) of Magistrates Court (Civil Proceedings) Act 2004 (WA) - Whether practitioner's statements were said 'for the purpose of attempting to settle a minor case' - Whether vocational disciplinary proceedings in State Administrative Tribunal arising out of statements made at pre-trial conference in minor case proceedings in Magistrates Court are 'in respect of the proceedings' in which the statements were made Ethical duties of candour and fairness when responding to letter of demand Allegation of professional misconduct by knowingly seeking to mislead client by email statements referring to notification of, and correspondence with, practitioner's insurer regarding claim, in circumstances where practitioner did not notify or correspond with any insurer regarding claim, in order to defer or delay client from commencing proceedings against practitioner seeking refund of fees - Ethical duties of candour and fairness in court proceedings Allegation of professional misconduct by knowingly seeking to mislead Magistrates Court and client by statements to the effect that 'the matter is in the insurer's hands' and 'there is an insurer involved', in circumstances where practitioner did not notify or correspond with any insurer regarding claim, in order to defer or delay proceedings - Legal and ethical duties to respond to notification letters and summonses for production of documents from regulatory authority Allegation of professional misconduct by, without reasonable excuse, failing to respond to three notification letters of complaint and conduct investigations requesting practitioner's submissions, a Summons to Produce Documents and a Summons to Produce Documents and Provide Written Information Verified by Statutory Declaration within the periods specified in the letters and summonses or at all - Words & phrases: 'disgraceful', 'dishonourable'
Legislation:
Legal Profession Act 2008 (WA), s 5(a), s 56, s 401, s 402, s 403, s 403(1), s 403(1)(b), s 404, s 404(a), s 410, s 410(1)(e), s 421, s 428(1), s 438, s 438(1), s 442, s 520, s 520(1)(a), s 520(1)(c), s 520(1)(d), s 520(3), s 520(5), s 531, s 531(2), s 532, s 532(3)
Legal Profession Conduct Rules 2010 (WA), r 50, r 50(3)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 3(1), s 26, s 27, s 27(1), s 27(3), s 34, s 35, s 33, s 37, s 37(2), Pt 4, Pt 5
Magistrates Court (Minor Cases Procedure) Rules 2005 (WA), r 28(2), r 29, r 29(1), r 29(2), r 30, r 31, r 32
State Administrative Tribunal Act 2004 (WA), s 32, s 35(1)Result:
Findings of professional misconduct on all three grounds
Summary of Tribunal's decision:
The Legal Profession Complaints Commitee alleged that Ms Christina Marie Chang, a legal practitioner, engaged in professional misconduct, in her personal capacity or capacity as a registered migration agent (and not in her capacity as a legal practitioner):
1.Between 23 June 2016 and 7 July 2016, in the course of corresponding with a client who had instructed the practitioner as a registered migration agent to prepare and lodge a permanent residency visa application, and who subsequently terminated the practitioner's instructions, withdrew the visa application and sent a letter of demand to the practitioner seeking 'compensation' of $10,000 'to refund us your fee, one [visa] application fee and all the documents that we obtained due to your incorrect advice' and stating that, if the practitioner was 'not willing [to] pay us any compensation', then 'you will leave me no other choice than [to] take legal action', by knowingly seeking to mislead the client by email statements referring to notification of, and correspondence with, the practitioner's insurer in relation to the claim for compensation, when, in truth, the practitioner did not notify, or correspond with, any insurer during that period regarding the claim for compensation, so as to defer or delay the client from commencing proceedings against the practitioner in respect of the claim; and
2.Between 23 August 2016 and 27 September 2016, in the course of defending Magistrates Court minor case proceedings brought by the client against the practitioner seeking the payment of $10,000 'as (part of) reimbursement for one [visa] application and her honorarium' plus court fee, by knowingly seeking to mislead the Magistrates Court and the client by making statements at pre-trial conferences to the effect that:
'I cannot disclose any details because the matter is in the insurer's hands. I will discuss it as soon as I have more information on what they are going to do', and
'I cannot speak about the matter because there is an insurer involved',
when, in truth, at no time prior to 23 August 2016, and between 23 August 2016 and 27 September 2016, did the practitioner notify, or correspond with, any insurer regarding the claim for compensation or the Magistrates Court proceedings, so as to defer or delay the Magistrates Court proceedings.
The Committee also alleged that the practitioner engaged in professional misconduct, in her capacity as a legal practitioner, on and after 6 October 2017, following a complaint to the Committee by the client against the practitioner, by, without reasonable excuse, failing to respond to three notification letters, a Summons to Produce Documents and a Summons to Produce Documents and Provide Written Information Verified by Statutory Declaration.
The practitioner objected to the admissibility of the client's evidence as to what the practitioner said during pre-trial conferences in the Magistrates Court proceedings, on the basis that those statements were privileged under s 27(3) and s 37(2) of the Magistrates Court (Civil Proceedings) Act 2004 (WA). Under s 27(3), '[a]nything said or done by a party for the purpose of attempting to settle a minor case is to be taken to be said or done without prejudice to any evidence or submission that the party … may subsequently adduce or make, in or in respect of the proceedings …' and under s 37(2) '[e]vidence of … anything said or done … in the course of, or for the purpose of, attempting to settle a case by compulsory mediation … is not admissible in any proceedings before any court, tribunal or body …'. However, the Tribunal determined that neither of these provisions relevantly applied in the professional disciplinary proceedings brought by the Committee against the practitioner in the Tribunal. Furthermore, and in any case, the Tribunal determined that even if it were necessary to seek to balance competing aspects of public interest in this case, between the primary object of the minor cases procedure 'to attempt to bring the parties to a settlement acceptable to all the parties' (or, more generally, the public interest in facilitating the settlement of legal disputes without the need for litigation), on the one hand, and the protection of the public in their dealings with legal practitioners and the maintenance of the proper standards of the legal profession, by referral of a matter arising out of the making of false and misleading statements by a legal practitioner in seeking to settle a dispute and the determination of such a matter by the Tribunal, on the other hand, the latter public interest would prevail. The Tribunal therefore admitted the evidence of the client as to statements made by the practitioner during the pre-trial conferences in the Magistrates Court.
The Tribunal determined that the practitioner engaged in professional misconduct in terms of each of the three grounds alleged by the Committee against her. The Tribunal found that the practitioner knowingly sought to mislead the client by making false and misleading email statements, so as to defer or delay the client from commencing proceedings against the practitioner in respect to the claim, and that her conduct in this regard would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence and hence constitutes professional misconduct. The practitioner's conduct was grossly unfair to the client and dishonest, and involved a breach of a lawyer's fundamental ethical duties of candour and fairness, whether representing a client or acting in a personal capacity, not to knowingly seek to mislead the other party to a demand for payment of money.
The Tribunal also found that the practitioner knowingly sought to mislead the Magistrates Court and the client by making false and misleading statements at two pre-trial conferences in the Magistrates Court proceedings, so as to defer or delay the Magistrates Court proceedings, and that her conduct in this regard would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence and hence constitutes professional misconduct. The practitioner breached her fundamental ethical duties of candour and fairness to the Court and to the client. Knowingly seeking to mislead a court (and the other party to litigation), whether in a professional or personal capacity, strikes at the very heart of, and is an anathema to, a legal practitioner's core ethical duties as an officer of the court and fundamentally undermines the trust and confidence between court and practitioner which is essential to the administration of justice.
Finally, the Tribunal found that the practitioner, without reasonable excuse, failed to respond to the notification letters and summonses issued by the regulatory authority (within the periods specified in those documents or subsequently) and that this conduct would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence and is conduct that, consistently and to a substantial degree, falls short of the standard of professional conduct observed or approved by members of the profession of good repute and competence. The Tribunal determined that the practitioner's conduct in failing to respond to the notification letters and summonses rises to the level of professional misconduct, rather than constituting (merely) unsatisfactory professional conduct, because:
·the practitioner's failures were sustained and repeated over three stages of investigation by the Committee;
·the practitioner not only failed to respond to the notification letters and to comply with the summonses within the periods specified in those documents, but has failed to do so, now, for over one-and-a-half years; and
·the practitioner never sought an extension nor engaged at all with the Committee in relation to the investigation of the client's complaint about the practitioner and the subsequent conduct investigations resulting from the practitioner's failures to respond to the first two notification letters.
Having made findings of professional misconduct, the Tribunal directed the parties to file and exchange submissions as to penalty and costs and listed the matter for hearing in relation to penalty and costs.
Category: B
Representation:
Counsel:
Applicant : Mr P Yovich SC Respondent : Mr S Walker Solicitors:
Applicant : Law Complaints Officer Respondent : N/A Case(s) referred to in decision(s):
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Chamberlain v Law Society of the Australian Capital Territory (1993) 43 FCR 148
Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56
Legal Practitioners Complaints Committee and Fleming [2006] WASAT 352; (2006) 48 SR (WA) 29
Legal Practitioners Complaints Committee and Segler [2009] WASAT 205; (2009) 67 SR (WA) 280
Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37; (2013) 84 SR (WA) 158
Legal Profession Complaints Committee and Amsden [2014] WASAT 57
Legal Profession Complaints Committee and Caine [2010] WASAT 178
Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58; (2012) 80 SR (WA) 134
Legal Profession Complaints Committee and Lee-Steere [2010] WASAT 189
Legal Profession Complaints Committee and Segler [2010] WASAT 135
Legal Profession Complaints Committee and Segler [2013] WASAT 117
Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202
TABLE OF CONTENTS
Introduction
Grounds of alleged professional misconduct
Legal framework
Objections to admissibility of evidence
Facts
Background facts
Facts in relation to ground 1
Facts in relation to ground 2
Facts in relation to ground 3
Ground 1 Knowingly seeking to mislead the complainant
Ground 1
Issues for determination in relation to ground 1
Were the email statements made by the practitioner?
Were the email statements false and misleading?
Did the practitioner know that the email statements were false and misleading and did she intend that the complainant be misled by the email statements, so as to defer or delay her from commencing proceedings against the practitioner in respect of the claim?
Did the practitioner engage in professional misconduct by making the email statements?
Ground 2 Knowingly seeking to mislead the Magistrates Court and the complainant
Ground 2
Issues for determination in relation to ground 2
Were the PTC statements made by the practitioner?
Were the PTC statements false and misleading?
Did the practitioner know that the PTC statements were false and misleading and did she intend that the Magistrates Court and the complainant be misled by the PTC statements, so as to defer or delay the Magistrates Court proceedings?
Did the practitioner engage in professional misconduct by making the PTC statements?
Ground 3 Without reasonable excuse, failing to respond to three notification letters and two summonses.
Ground 3
Issues for determination in relation to ground 3
Did the practitioner receive the notification letters and summonses?
Did the practitioner fail to respond to the notification letters and summonses?
Did the practitioner have a reasonable excuse for not responding to the notification letters and summonses?
Did the practitioner engage in professional misconduct by, without reasonable excuse, failing to respond to the notification letters and summonses?
Conclusion
Findings of professional misconduct and orders
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
1Ms Christina Marie Chang (practitioner) was admitted to legal practice in Western Australia on 4 February 1985. Since about September 1992, the practitioner has also been a registered migration agent. In her capacity as a registered migration agent (and not as a lawyer), in or about March 2015, the practitioner was retained by Ms E H (the complainant) to prepare and lodge a permanent residency visa application, on behalf of the complainant, her husband and their two children (visa application), with the Commonwealth Department of Immigration and Border Protection (DIBP). The complainant subsequently terminated the practitioner's instructions and withdrew the visa application, because the complainant's International English Language Testing System (IELTS) test, which had to be undertaken within three years prior to the date of lodgement of the visa application with DIBP, had been undertaken more than three years prior to the lodgement of the visa application. On 2 June 2016, the complainant sent a letter of demand to the practitioner seeking 'compensation' of $10,000 'to refund us your fee, one [visa] application fee and all the documents that we obtained due to your incorrect advice' and stating that, if the practitioner was 'not willing [to] pay us any compensation', then 'you will leave me no other choice than [to] take legal action' (letter of demand).[1] When the practitioner did not pay the money sought by the complainant in the letter of demand, on 25 July 2016, the complainant commenced 'minor case' proceedings against the practitioner under the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCP Act) in the Fremantle Registry of the Magistrates Court of Western Australia seeking the payment of $10,000 'as (part of) reimbursement for one [visa] application and her honorarium' plus court fee of $118.20 (Magistrates Court proceedings).[2]
[1] Legal Profession Complaints Committee book of documents dated 1 August 2018 (Exhibit 3) page 57.
[2] Legal Profession Complaints Committee book of documents dated 1 August 2018 (Exhibit 3) page 62.
2The Legal Profession Complaints Committee (Committee) alleges that the practitioner engaged in professional misconduct, within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) (LP Act), in her personal capacity or capacity as a registered migration agent (and not in her capacity as a legal practitioner):
(1)Between 23 June 2016 and 7 July 2016, in the course of corresponding with the complainant, by knowingly seeking to mislead the complainant by email statements referring to notification of, and correspondence with, the practitioner's insurer in relation to the claim for compensation, when, in truth, the practitioner did not notify, or correspond with, any insurer during that period regarding the claim for compensation, so as to defer or delay the complainant from commencing proceedings against the practitioner in respect of the claim; and
(2)Between 23 August 2016 and 27 September 2016, in the course of defending the Magistrates Court proceedings, by knowingly seeking to mislead the Magistrates Court and the complainant by making statements at pre-trial conferences to the effect that:
I cannot disclose any details because the matter is in the insurer's hands. I will discuss it as soon as I have more information on what they are going to do[.]
and
I cannot speak about the matter because there is an insurer involved[.]
when, in truth, at no time prior to 23 August 2016, and between 23 August 2016 and 27 September 2016, did the practitioner notify, or correspond with, any insurer regarding the claim for compensation or the Magistrates Court proceedings, so as to defer or delay the Magistrates Court proceedings.
3The Committee also alleges that the practitioner engaged in professional misconduct, within the meaning of s 403, s 404(a) and s 438 of the LP Act, in her capacity as a legal practitioner, on and after 6 October 2017, following a complaint to the Committee by the complainant against the practitioner, by, without reasonable excuse, failing to respond to three notification letters, a Summons to Produce Documents and a Summons to Produce Documents and Provide Written Information Verified by Statutory Declaration.
4We will now set out the three grounds of professional misconduct alleged by the Committee against the practitioner. We will then outline the legal framework in relation to this matter, refer to and set out our determination of objections made by the practitioner to the admissibility of certain evidence, and make findings of fact for the determination of this proceeding. We will then address each of the three grounds of alleged professional misconduct in turn.
5For reasons set out below, we have determined that the practitioner engaged in professional misconduct in terms of each of the three grounds alleged by the Committee against her.
Grounds of alleged professional misconduct
6The Committee alleges the following three grounds of professional misconduct against the practitioner:[3]
[3] Further Amended Annexure A to Application dated and filed 14 June 2019 (Exhibit 1) pages 1-4 (original emphasis). In these reasons, we use the expressions 'email statements' and 'PTC statements' as those terms are defined in grounds 1 and 2, respectively.
GROUND 1
That the practitioner, CHRISTINA MARIE CHANG (practitioner), between 23 June 2016 and 7 July 2016, in the course of corresponding with a former client, [the complainant], in response to a letter of demand from [the complainant] dated 2 June 2016 for a refund of $10,000 for fees paid by [the complainant] in relation to an unsuccessful visa application the practitioner had prepared and lodged on behalf of [the complainant] and her family on 16 October 2015 (Claim), the practitioner engaged in professional misconduct within the meaning of [s] 403 and [s] 438 of the Legal Profession Act 2008 (WA) (Act) in that her conduct would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, and further and alternatively, would justify a finding that she is not a fit and proper person to engage in legal practice, by preparing and sending:
1.an email to [the complainant] dated 23 June 2016 in which she stated "I will notify my Insurers and will await their response. Once I have that I can then respond to you in detail";
2.an email to [the complainant] dated 29 June 2016 in which she stated "Hi the way insurance works is that all claims must be reported to the insurers and I am required by my insurers not to discuss the claim with you directly";
3.an email to [the complainant] dated 7 July 2016 in which she stated "Hi I am waiting for [a] reply from my insurer[.] I should hear by next week. They know its [sic] urgent",
(together, the email statements)
in circumstances where:
(a)the email statements were false and misleading, as, in truth, at no time between 23 June 2016 and 7 July 2016 did the practitioner notify, or correspond with, any insurer or insurers regarding the Claim;
(b)the practitioner knew the email statements were false and misleading and intended that [the complainant] be misled by the email statements, so as to defer or delay [the complainant] from commencing proceedings against the practitioner in respect of the Claim.
GROUND 2
That the practitioner, between 23 August 2016 and 27 September 2016, in the course of defending Fremantle Magistrates Court (Court) proceedings [number] lodged by [the complainant] against the practitioner on 25 July 2016 in respect of the Claim, by which [the complainant] sought the sum of $10,118.20 (including allowable Court fees) (Proceedings), engaged in professional misconduct within the meaning of [s] 403 and [s] 438 of the Act in that her conduct would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, and further and alternatively, would justify a finding that she is not a fit and proper person to engage in legal practice, by:
1.at a pre-trial conference (PTC) before a registrar of the Court (Registrar) on 23 August 2016, saying words to the effect "I cannot disclose any details because the matter is in the insurer's hands. I will discuss it as soon as I have more information on what they are going to do";
2.at a further PTC before the Registrar on 27 September 2016, saying words to the effect "I cannot speak about the matter because there is an insurer involved",
(together, the PTC statements)
in circumstances where:
(a)the PTC statements were false and misleading as, in truth, at no time prior to 23 August 2016, and between 23 August 2016 and 27 September 2016, did the practitioner notify, or correspond with, any insurer or insurers regarding the Claim or the Proceedings;
(b)the practitioner knew the PTC statements were false and misleading and intended that the Court and [the complainant] be misled by the PTC statements, so as to defer or delay the Proceedings.
GROUND 3
That the practitioner, on and after 6 October 2017, following a complaint to the Legal Profession Complaints Committee (Committee) by [the complainant] against the practitioner arising from the practitioner's response to the Claim, her conduct in the Proceedings and her failure to pay the Judgment sum (Complaint), engaged in professional misconduct within the meaning of [s] 403, [s] 404(a) and [s] 438 of the Act in that her conduct would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence and fell short, consistently and to a substantial degree, of the standard of professional conduct observed or approved by members of the profession of good repute and competence, and further and alternatively, would justify a finding that she is not a fit and proper person to engage in legal practice, by, without reasonable excuse, failing to respond to:
1.by 5 October 2017 or at all, a letter from the Committee to the practitioner dated 15 September 2017 which formally notified her of, and requested her submissions in relation to, the Complaint (First notification letter), in breach of rule 50(3) of the [Legal Profession Conduct Rules (2010) (WA) (LPCR)] and/or [s] 531(2) of the Act;
2.by 5 October 2017 or at all, a Summons to Produce Documents dated 14 September 2017 issued to the practitioner by the Committee pursuant to [s] 520(1)(a) of the Act (First summons), in breach of [s] 520(5) and [s] 532(3) of the Act;
3.by 7 November 2017 or at all, a letter from the Committee to the practitioner dated 17 October 2017 which formally notified her of, and requested her submissions in relation to, a conduct investigation commenced on the Committee's own initiative pursuant to [s] 421 of the Act in relation to the practitioner's failure to respond to the First notification letter and the First summons (Second notification letter), in breach of rule 50(3) of the LPCR and/or [s] 531(2) of the Act;
4.by 6 December 2017 or at all, a letter from the Committee to the practitioner dated 15 November 2017 which formally notified her of, and requested her submissions in relation to, a conduct investigation commenced on the Committee's own initiative pursuant to [s] 421 of the Act in relation to the practitioner's failure to respond to the Second notification letter, in breach of rule 50(3) of the LPCR and/or [s] 531(2) of the Act;
5.by 6 December 2017 or at all, a Summons to Produce Documents and Provide Written Information Verified by Statutory Declaration dated 15 November 2017 issued to the practitioner by the Committee pursuant to [s] 520(1)(a), (c), and (d) and [s] 520(3) of the Act, in breach of [s] 520(5) and [s] 532(3) of the Act.
Legal framework
7The Committee has determined that this matter should be heard by the Tribunal and has referred the matter to the Tribunal under s 428(1) of the LP Act. Section 438(1) of the LP Act confers jurisdiction on the Tribunal in this proceeding in the following terms:
The State Administrative Tribunal has jurisdiction to make a finding that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct.
8The Committee bears the onus of proof in relation to the allegations of professional misconduct it makes against the practitioner. The civil standard of proof ('on a balance of probabilities') applies together with the Briginshaw approach,[4] which requires clear and cogent evidence to be adduced by the Committee and for the Tribunal to feel an actual persuasion of the occurrence or existence of relevant facts before it can find the practitioner guilty of professional misconduct (or unsatisfactory professional conduct). The Briginshaw approach applies in disciplinary proceedings, because of the nature and seriousness, and potential consequences, of allegations of wrongdoing (or incompetence) made in such proceedings. As Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361362:
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
[4] See Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362 (Dixon J) (a case concerning a petition for the dissolution of a marriage on the grounds of adultery).
9Section 402 and s 403 of the LP Act contain non-exhaustive[5] definitions of the terms 'unsatisfactory professional conduct' and 'professional misconduct', respectively. Section 402 of the LP Act states as follows:
For the purposes of this Act –
unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
[5] Legal Practitioners Complaints Committee and Segler [2009] WASAT 205; (2009) 67 SR (WA) 280 at [97].
10Section 403 of the LP Act states as follows:
(1)For the purposes of this Act –
professional misconduct includes –
(a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(2)For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.
11As the statutory definitions of the terms 'professional misconduct' and 'unsatisfactory professional conduct' in s 403(1) and s 402 of the LP Act, respectively, are non-exhaustive definitions, conduct which constitutes 'unprofessional conduct' (sometimes expressed as 'professional misconduct', signifying more serious misconduct) at common law can constitute professional misconduct (or unsatisfactory professional conduct) under the LP Act.[6]
[6] Legal Profession Complaints Committee and Caine [2010] WASAT 178; Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58; (2012) 80 SR (WA) 134; Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37; (2013) 84 SR (WA) 158.
12The common law concept of unprofessional conduct was restated by Parker J in Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 at [61] (Ipp J at [1] and Steytler J at [22] agreeing) as follows:
… This Court has long accepted and applied, in this context, the understanding of the notion of unprofessional conduct which was expressed by the Full Court of the South Australian Supreme Court in Re a Practitioner of the Supreme Court [1927] SASR 58: see, eg, Re a Practitioner (unreported, Supreme Court, WA, Full Court, Library No 4989, 18 July 1983). It was usefully summarised (at 3) by the Full Court as conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence. The first limb of this summary includes, but is not confined to, conduct which occurs in the course of legal practice. The other limb necessarily relates to conduct in the course of legal practice because of the reference to 'professional conduct'. While the words should not be taken as necessarily an exhaustive or codified statement, the essence of the notion of unprofessional conduct is usefully revealed in these decisions.
13As is apparent from the expression of the grounds of alleged professional misconduct set out at [6] above, the Committee contends, in relation to each of the three grounds, that the practitioner's alleged conduct constitutes 'professional misconduct' under the LP Act, because it falls within the 'first limb' of the restatement of the common law concept of unprofessional conduct in Kyle v Legal Practitioners' Complaints Committee at [61] ('conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence') and, further and alternatively, because it falls within the statutory definition of 'professional misconduct' in s 403(1)(b) of LP Act ('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'). As Parker J held in Kyle v Legal Practitioners' Complaints Committee at [61], the first limb of the restatement of the common law concept of unprofessional conduct in that case 'includes, but is not confined to, conduct which occurs in the course of legal practice'. The statutory definition of 'professional misconduct' in s 403(1)(b) of the LP Act also expressly states that that paragraph applies to conduct 'whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law'. As indicated earlier, the Committee contends that the practitioner's alleged conduct which is the subject of grounds 1 and 2 did not occur in connection with the practice of law, but rather occurred in the practitioner's personal capacity or in her capacity as a registered migration agent.
14As is apparent from the expression of ground 3 set out at [6] above, the Committee contends that the practitioner's conduct, which is the subject of that ground, constitutes professional misconduct under the LP Act, also because it falls within the 'second limb' of the restatement of the common law concept of unprofessional conduct in Kyle v Legal Practitioners' Complaints Committee at [61] ('conduct … that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence'), although ground 3 also alleges that the practitioner's conduct 'fell short, consistently and to a substantial degree' of that standard of professional conduct.[7] As we will indicate later, the sustained and repeated nature of the practitioner's failures, without reasonable excuse, to respond to the Committee's notification letters and summonses is part of the reason why we find that the practitioner engaged in professional misconduct, rather than (merely) unsatisfactory professional conduct, in terms of ground 3.
[7] Emphasis added.
15Whereas, in relation to grounds 1 and 2, the Committee contends that the practitioner engaged in professional misconduct 'within the meaning of [s] 403 and [s] 438 of the [LP] Act', in relation to ground 3 the Committee also contends that the practitioner engaged in professional misconduct 'within the meaning of … [s] 404(a) … of the [LP] Act'. Section 404 of the LP Act states, in part, as follows:
Without limiting section 402 or 403, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct —
(a)conduct consisting of a contravention of this Act or a previous Act;
…
16As is apparent from the expression of [1] [5] of ground 3, the 'contravention[s] of [the LP] Act' alleged by the Committee are contraventions of s 531(2) of the LP Act in relation to, without reasonable excuse, failing to respond to the three notification letters ([1], [3] and [4]) and contraventions of s 520(5) and s 532(3) of the LP Act in relation to, without reasonable excuse, failing to respond to the two summonses ([2] and [5]). For the purpose of carrying out a complaint investigation in relation to a legal practitioner, an investigator may serve a summons on the practitioner concerned under s 520 of the LP Act. Section 520 of the LP Act states, in relevant part, as follows:
(1)For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, an investigator may, by notice or summons served on the lawyer, require the lawyer to do any one or more of the following —
(a)to produce, at or before a specified time and at a specified place, any specified document (or a copy of the document);
(b)to produce, at a specified time and at a specified place, any specified document (or a copy of the document);
(c)to provide written information on or before a specified date;
(d)to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner.
…
(3)An investigator may require that information required to be given under subsection (1) or (2) be verified on oath or affirmation or by statutory declaration.
…
(5)A person who is subject to a requirement under subsection (1), (2) or (3) must comply with the requirement.
Penalty: a fine of $5 000.
…
17Section 531 of the LP Act states as follows:
(1)In this section —
obstruct includes hinder, delay, resist or attempt to obstruct.
(2)A person must not, without reasonable excuse, obstruct or mislead an investigator exercising a power under this Act.
Penalty: a fine of $10 000.
18Section 532 of the LP Act states as follows:
(1)The duties imposed on an Australian lawyer by this section are additional to obligations imposed under other provisions of this Part, whether or not the lawyer is the subject of the investigation, examination or audit concerned.
(2)An Australian lawyer must not mislead an investigator, the Board or the Complaints Committee in the exercise of —
(a)any function under this Part; or
(b)any function under a provision of a corresponding law that corresponds to this Part.
(3)An Australian lawyer who is subject to —
(a)a requirement under section 520; or
(b)a requirement under provisions of a corresponding law that correspond to that section,
must not, without reasonable excuse, fail to comply with the requirement.
19As indicated in [1], [3] and [4] of ground 3, the Committee contends that the practitioner's conduct by, without reasonable excuse, failing to respond to the three notification letters involves a contravention of r 50(3) of the Legal Profession Conduct Rules 2010 (WA) (Conduct Rules). Rule 50 of the Conduct Rules states as follows:
(1)In this rule —
regulatory authority means a local regulatory authority and an interstate regulatory authority.
(2)A practitioner must be open and candid in his or her dealings with a regulatory authority.
(3)A practitioner who is requested by a regulatory authority to provide comments or information in relation to the practitioner's conduct or professional behaviour must —
(a)respond to the request within a reasonable time and in any event within 14 days (or such extended time as the regulatory authority may allow); and
(b)provide in writing a full and accurate account of his or her conduct in relation to the matters covered by the request.
20Finally, we note that s 442 of the LP Act enables the Tribunal to make an alternative finding that a person is 'guilty of unsatisfactory professional conduct[,] even though the referral alleged professional misconduct'.
Objections to admissibility of evidence
21In her response to the Committee's facts and contentions, the practitioner expresses the following contention in relation to ground 2:[8]
[T]he alleged [PTC] [s]tatements (if proven) [were] made at a formally convened Court-ordered meditation [and] is [sic] privileged and such privilege has not been waived by the [p]ractitioner.
[8] Practitioner's response to applicant's facts and contentions dated 28 August 2018 (Exhibit 2) page 2.
22Furthermore, in response to the paragraphs of the Committee's statement of facts and contentions alleging and referring to the PTC statements, the practitioner states as follows:[9]
Not admitted. In any event the [p]ractitioner says that the PTC having been formally convened and is akin to a Court-ordered meditation and hence anything said or done attracts negotiation privilege and such privilege has not been waived by the [p]ractitioner.
[9] Practitioner's response to applicant's facts and contentions dated 28 August 2018 (Exhibit 2) [37] and [38] at page 8.
23When the Committee sought to tender its book of documents containing documents relating to the Magistrates Court proceedings, Mr S Walker, counsel for the practitioner, objected to the tender of the documents 'apparently containing references or implicit references at least to what was said at the pre-trial conference[s] [in the Magistrates Court proceedings]',[10] on the basis that the pre-trial conferences were 'compulsory mediation' under and for the purposes of s 37(2) of the MCCP Act. Section 37(2) of the MCCP Act states as follows:
[10] ts 21, 13 June 2019. The documents objected to are at pages 65, 68, 72 and 73 of the Legal Profession Complaints Committee book of documents (Exhibit 3).
Evidence of —
(a)anything said or done; or
(b)any communication, whether oral or written; or
(c)any admission made,
in the course of, or for the purpose of, attempting to settle a case by compulsory mediation is to be taken to be in confidence and is not admissible in any proceedings before any court, tribunal or body unless subsection (4) applies.
24In support of the objection to admissibility, Mr Walker referred to the terms of the 'Notice of Pre-Trial Conference Minor Case' issued by the Magistrates Court to the complainant and the practitioner stating:[11]
You are required to attend a pre-trial conference …
The primary role of the registrar at a pre-trial conference is to attempt to bring the parties to a settlement acceptable to all parties.
…
You must attend the pre-trial conference in person.
…
[11] Original emphasis. The Notice of Pre-Trial Conference Minor Case is set out in full at [87] below.
25Mr Walker made the following submission:[12]
… [T]he inference that should be drawn from the material that the [C]ommittee is producing is that pursuant to [s] 35 [of the MCCP Act] … the Magistrates Court had ordered that the case be mediated and had appointed a registrar as the mediator, and thus, [s] 37 [of the MCCP Act], I submit, does apply and has been, if you like, established on the material and by a proper inference as applying in this case.
[12] ts 22-23, 13 June 2019.
26For the following reasons, which we gave orally, we ruled that the documents objected to by the practitioner are admissible:[13]
[13] ts 24-25, 13 June 2019.
The term "compulsory mediation" is defined in [s] 34 of the [MCCP Act], to mean:
[m]ediation carried out by a mediator in accordance with an order of the [C]ourt and the rules of court[.]
The term "mediator" is defined in the same section to mean, "a mediator appointed or agreed under section 35".
Section 35 [of the MCCP Act] states as follows:
If the [C]ourt orders that a case[,] or any issue arising in it[,] be mediated[—]
(a)the [C]ourt may appoint a registrar or another person as the mediator; or
(b)the parties may agree on who is to be the mediator.
On the evidence before the [T]ribunal, there was no ["]compulsory mediation["] within the meaning of [s] 34 of the [MCCP Act]. There was no order made by the Magistrates Court under [s] 35 of the [MCCP Act], that [the] case or an issue arising in the case be mediated[,] and the [C]ourt did not appoint a registrar or another person as mediator. Rather, the evidence in the book of documents at pages 62 and 63 clearly indicates and [we feel an actual] persuasion, that the proceeding in the Magistrates Court was as stated on page 63 in the form of the application or initiating process filed by [the complainant], "a minor case".
The application was made by a [F]orm 6 filed on 25 July 2016. As Mr Yovich [SC, counsel for the Committee] submits, minor cases are a particular category of the jurisdiction of the Magistrates Court dealt with in [Pt] 4 of the [MCCP Act] which defines a ["]minor case["] to be ["]a claim within the jurisdiction of the Court where [—] [(i)] the value of the claim or of the relief claimed is not more than the minor cases jurisdictional limit[;[14]] and [(ii)] the [claimant] has elected to have the claim dealt with under the minor cases procedure[",] as defined in [s] 26 of the [MCCP Act]. It is plain on the face of the document at page 62 of the book of documents [the Form 6 by which the Magistrates Court proceedings was commenced] that the proceeding commenced by [the complainant] against the respondent practitioner, in the Magistrates Court, was a minor case claim, being [at] the jurisdictional limit and [the complainant] having elected to have the claim dealt with under the minor cases procedure. It is clear from page 63 of the book of documents[,] to which Mr Walker draws particular attention, that the Magistrates Court issued a "[N]otice of [P]re-[T]rial [C]onference [M]inor [C]ase".
Although that document states, as Mr Walker points out, "You must attend the pre[-]trial conference in person", it is clear on the face of the document that it was a procedure, namely a pre[-]trial conference[,] in a "minor case". It is also clear beyond any question on the face of the document, that the Magistrates Court did not make an order under [s] 35 of the [MCCP Act], that the case or any issue in the case be mediated. The pre[-]trial conference was not a "compulsory mediation".
Furthermore, … it is also clear from the orders made by the Magistrates Court on 27 August 2016, at page 66 of the book of documents, adjourning the pre[-]trial conference to 27 September 2016, that the Magistrates Court did not make an order under [s] 35 of the [MCCP Act,] but rather made an order adjourning the pre[-]trial conference under the minor cases procedure of that [C]ourt.
And furthermore, it is clear from the Magistrates Court order at page 69 of the book of documents made on 27 September 2016 further adjourning the pre[-]trial conference to 22 November 2016, that the [C]ourt did not make an order under [s] 35 of the [MCCP Act] [that] the case or any issue arising in the case be mediated. Rather, on its face, the [C]ourt adjourned the pre[-]trial conference within the minor [cases] jurisdiction of the Magistrates Court. Consequently, [s 37(2)] of the [MCCP Act] is not applicable in relation to the circumstances of this case.
[14] The term 'minor cases jurisdictional limit' is relevantly defined in s 3(1) of the MCCP Act to mean 'on and after 1 January 2009, … $10 000'.
27Immediately after making this ruling, the Tribunal raised for Mr Walker's consideration 'in fairness … to your client',[15] 'particularly in relation to [the complainant's] evidence, but [also] more broadly',[16] the terms of s 27 of the MCCP Act, and in particular s 27(1) and s 27(3) of the MCCP Act. Section 27 of the MCCP Act states as follows:
[15] ts 25, 13 June 2019.
[16] ts 26, 13 June 2019.
(1)The primary object of the Court when dealing with a minor case is to attempt to bring the parties to a settlement acceptable to all the parties.
(2)The Court may, at any stage of the proceedings, do all things and take all such steps as it considers to be appropriate to achieve that primary object.
(3)Anything said or done by a party for the purpose of attempting to settle a minor case is to be taken to be said or done without prejudice to any evidence or submission that the party —
(a)has adduced or made; or
(b)may subsequently adduce or make,
in or in respect of the proceedings, and the saying or doing of that thing does not disqualify the person or persons constituting the Court from sitting or continuing to deal with the case.
(4)If the Court is unable to bring the parties to a settlement acceptable to all the parties, the Court must deal with the minor case.
28Mr Walker subsequently objected to the admissibility of the paragraphs of the complainant's witness statement in which she states that the practitioner made the PTC statements alleged in ground 2,[17] 'primarily' on the basis of s 27 of the MCCP Act and also on the basis that 'I do renew … or reiterate my submissions about [s] 37 [of the MCCP Act]', although Mr Walker said that 'of course I recognise that the [T]ribunal has ruled against me a short while ago regarding the application of [s] 37 to a pre[-]trial conference of a minor case'.[18] Mr Walker said that 'for the record, and as a formality, I do rely on those submissions about [s] 37'.[19]
[17] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [58] and [59].
[18] ts 32, 13 June 2019.
[19] ts 32, 13 June 2019.
29Mr Walker made essentially two submissions in support of the practitioner's objection under s 27 of the MCCP Act to the admissibility of the parts of the complainant's evidence in which she says that the practitioner made the PTC statements. Firstly, Mr Walker submitted that:[20]
… the section as a whole, particularly subsections 1, 2 and 3, when taken together, clearly demonstrate an intention on the part of the legislature that, so far as minor cases are concerned, it is of great significance to encourage parties to such a case to attempt to come to a settlement, or as subsection 1 says, to be brought, in effect, to a settlement, that is, by the [C]ourt. It is submitted that even before one gets the precise words on which in a moment in the second limb of my submission I will seek to rely – even before one gets there, one readily identifies and easily identifies a clear intention on the part of the legislature that things said or done in a minor case for the purpose of attempting to settle it are to be treated, in my words, confidentially.
And so that provides a foundation for a submission that the legislature has evinced an intention that a mediation privilege be recognised, and that intention, I respectfully submit, is to be [weighed] by this [T]ribunal when considering, particularly by reference to [s] 32 of the SAT Act, whether it is appropriate to permit evidence of something said at a minor case pre[-]trial conference to be heard. We would submit that this is a matter of very considerable weight.
That is to say, the confidential nature of what is said in an attempt to settle a minor case, and that it weighs very heavily in favour of excluding the admission of the evidence, it may be that the [T]ribunal will consider it should conduct the balancing exercise in putting on one side of the scales the confidential nature of what is said at the minor case pre[-]trial conference and the importance of preserving that so as to encourage settlement discussions, against other considerations such as – no doubt Mr Yovich would say, and I think properly if he said it – the public interest in the [C]ommittee being able to rely on such evidence in order to support … the allegations contained really in … ground 2.
But it's our submission that if such a weighing exercise is to be undertaken, then very considerable attention has to be given to the undesirability of undermining a perception that litigants would have in minor case pre[-]trial conferences, a perception that things that they say in the course of settlement discussions may in fact be used in some respect against them in the future. If such an undermining is to occur then the efficacy of pre[-]trial conferences in this setting will be severely or may be severely reduced, I would submit.
[20] ts 32-33, 13 June 2019.
30Mr Walker submitted that:[21]
… the clear character that the [P]arliament has clearly intended that such discussions or statements would have confidentiality, gives rise to a submission that the [Tribunal] would, particularly looking at [s] 32 [of the SAT Act], decline to accept such evidence.
[21] ts 36, 13 June 2019.
31Mr Walker's second submission was as follows:[22]
The second limb of my submission here though refers not to those general considerations about legislative intention of confidentiality to be – or things said that such a pre[-]trial conference to be characterised as of a confidential nature, instead I refer now to some of the precise words in subsection 3. … [F]irst of all, the proposed evidence is of things allegedly said by a party. There can be no doubt about that. Ms Chang being a party to those proceedings in the Magistrates Court.
Anything said, therefore, by her for the purpose of attempting [to settle] that minor case, is to be taken to be said or done without prejudice to any evidence or submission that she [has] adduced or later – I don't rely on that but I do rely on (b) – any evidence or submission that she may subsequently adduce or make in or in respect of the proceedings. My submission here is that [s 27(3)] is not to be construed narrowly so as to mean that it merely has the effect that any submission that she might have subsequently made, or indeed any evidence she might have subsequently adduced in the Magistrates Court, is, in my words, not to be affected by anything said at the pre[]trial conference.
That's one possible and narrow way of reading the provision. But in my submission, it's far too narrow because in particular as well as not giving sufficient weight to the confidential nature of such things that are said at the pre[-]trial conference. It gives no work to be done so the key words "or in respect of", that is, in or in respect of the proceedings. It would have been simple enough if a narrow meaning was intended for the legislature to be able to insert the words, "or in respect of", and for it simply to provide that anything said for the purposes of attempting to settle a minor case is to be taken to be said or done without prejudice to any legal submission that the party may subsequently use or make in the proceedings.
That would be an obvious and straightforward way of expressing and giving content to a notion that a party at a minor case pre[-]trial conference and in confidence that anything they say for the purpose of attempting to settle it is not going to be used against them in further – in a further or future hearing of the minor case. If that's all that was intended and the only target to be achieved by the legislature, then it would not have used the additional words "or in respect of".
In my submission, the insertion of those words evinces an intention that the protection – if I put it that way – to be accorded to a person who says something at a minor case pre[-]trial conference, is to extend beyond the minor case proceeding itself and is to shroud anything said in those circumstances at the pre[-]trial conference with protection from it being used in any derivative or indirect way which is – and such a proposed use would be in respect of the proceeding.
So, specifically in this case, [the complainant] issued proceedings against Ms Chang in the Magistrates Court. [The complainant] says that Ms Chang said things at a pre[-]trial conference which, in my submission, was for the purpose of attempting to settle the minor case, and if the [C]ommittee is permitted to lead the evidence, it will impact upon and be to the prejudice of Ms Chang in this proceeding and this [T]ribunal, which is a proceeding that is in respect of the proceedings in the Magistrates Court.
[22] ts 33-35, 13 June 2019.
32After adjourning to consider the practitioner's objection to the admissibility of the complainant's evidence in relation to the PTC statements and the submissions made in relation to that objection, we returned and said the following:[23]
For four reasons which we will detail fully in writing as part of the [T]ribunal's reasons for decision in relation to this proceeding, the objection to the evidence foreshadowed at paragraphs 58 and 59 of [the complainant's] witness statement of 1 March 2019 is dismissed. The four reasons, in brief outline, to be detailed fully in writing as part of our reasons for determination of this matter, are as follows. …
[23] ts 42, 13 June 2019.
33Our first reason for dismissing the objection to admissibility was that a pre-trial conference in a minor case under Pt 4 of the MCCP Act is not a 'compulsory mediation' under and for the purposes of s 37(2) of the MCCP Act. In addition to the reasons we gave orally, which are set out at [26] above, we note that s 35 of the MCCP Act (which refers to an order of the Magistrates Court that a case, or an issue arising in it, 'be mediated' and to the appointment by the Magistrates Court of a registrar or another person as the 'mediator') and s 37(2) of the MCCP Act (which prescribes the privilege from admissibility of anything said or done in the course of, or for the purpose of, attempting to settle a case by 'compulsory mediation' in very broad terms, extending to 'any proceedings before any court, tribunal or body …') are contained in Pt 5 of the MCCP Act, which is entitled 'Mediation', whereas the provisions of the MCCP Act relating to minor cases are contained in Pt 4 of that Act, which is entitled 'Minor case procedure'. Moreover, s 34 of the MCCP Act, which defines the terms 'compulsory mediation' and 'mediator', states that those definitions apply '[i]n this Part [that is, Pt 5 'Mediation'], unless the contrary intention appears'. The fact that s 35 of the MCCP Act, which enables the Magistrates Court to appoint a registrar or another person as the 'mediator', and s 37(2) of the MCCP Act, which prescribes the broad privilege attaching to anything said or done in the course of, or for the purpose of, attempting to settle a case by 'compulsory mediation', are in a different Part of the MCCP Act to the provisions of the MCCP Act concerning minor cases procedure, and, indeed, the fact that s 34 of the MCCP Act defines the terms 'compulsory mediation' and 'mediator' '[i]n this Part [and not elsewhere in the Act]', further supports our determination that the 'pre-trial conferences' which took place in the Magistrates Court proceedings, during the course of which, the complainant says in her evidence, the practitioner made the PTC statements, were not a 'compulsory mediation' and the Registrar conducting the pretrial conferences was not a 'mediator', as those terms are defined in s 34 of the MCCP Act, and, consequently, the pre-trial conferences were not 'compulsory mediation' within the meaning and for the purposes of s 37(2) of the MCCP Act.
348As also indicated earlier, the Committee has 'discounted' the disbursements it incurred by $1,500 to take into account the fact that the Committee withdrew its original Ground 3. As that ground was one of four that were originally alleged against the practitioner, in our view, 25% of the fees charged by Mr Yovich prior to the conduct hearing should be discounted. Mr Yovich's fees prior to the conduct hearing amounted to $11,319 (including GST). Twenty-five per cent of that amount is $2,829.75. It does not appear that any of the other disbursements claimed by the Committee are greater as a result of former Ground 3 then they would have been had the former Ground 3 not been alleged against the practitioner in the application.
349In our view, in the exercise of discretion under s 87(2) of the SAT Act, it is fair and reasonable that the practitioner should pay the Committee's costs of these proceedings fixed in the sum of $20,761.35, being the disbursements incurred by the Committee ($23,591.10) less $2,829.75.
Conclusion
350The appropriate disciplinary consequence of the serious professional misconduct committed by the practitioner, by knowingly seeking to mislead the complainant by making the email statements and by knowingly seeking to mislead the Magistrates Court and the complainant by making the PTC statements, is that the Tribunal should make and transmit a report on the findings that the practitioner is guilty of professional misconduct to the Supreme Court (full bench), under s 438(2)(a) of the LP Act, with a recommendation that the name of the practitioner be removed from the roll of persons admitted to the legal profession under the LP Act, under s 438(4)(b) of the LP Act. The Tribunal's report comprises the conduct reasons and these reasons and includes a record of the evidence taken at the hearing, under s 438(4)(a) of the LP Act, namely a copy of the exhibits and transcript of the proceeding and the character references, medical and psychological reports and submissions filed in relation to penalty and costs.
351The practitioner should pay the Committee's costs of these proceedings in terms of disbursements fixed in the amount of $20,761.35 to the Board within 30 days or as otherwise agreed between the practitioner and the Board.
Orders
352The Tribunal makes the following orders:
1.Pursuant to s 438(2)(a) of the Legal Profession Act 2008 (WA), a report be transmitted to the Supreme Court (full bench) on the Tribunal's findings that the respondent is guilty of professional misconduct, with a recommendation, pursuant to s 438(4)(b) of the Legal Profession Act 2008, that the name of the respondent be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008. The report comprises the Tribunal's reasons for decision in Legal Profession Complaints Committee and Chang [2019] WASAT 67 and Legal Profession Complaints Committee and Chang [2019] WASAT 67 (S) and is to be transmitted with a copy of the exhibits and transcript of the proceeding and the character references, medical and psychological reports and submissions filed in relation to penalty and costs.
2.Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the respondent must pay the applicant's costs of the proceeding in terms of disbursements fixed in the amount of $20,761.35, such costs to be paid to the Legal Practice Board within 30 days of the date of this order or as otherwise agreed between the respondent and the Legal Practice Board.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE D PARRY, DEPUTY PRESIDENT
15 MAY 2020
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