| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and DETATA [2011] WASAT 91 (S) MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT) MS S GILLETT (MEMBER)
MR C PHILLIPS (SENIOR SESSIONAL MEMBER)
HEARD : 23 MARCH 2011 AND 31 AUGUST 2011 DELIVERED : 21 JUNE 2011 SUPPLEMENTARY
DECISION : 31 OCTOBER 2011 FILE NO/S : VR 153 of 2010 BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE Applicant
AND
MARK ANTHONY DETATA
Respondent
Catchwords: Legal practitioner - Professional misconduct - Penalty Legislation: Legal Profession Act 2008 (WA), s 441
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State Administrative Tribunal Act 2004 (WA), s 87(1) Result: Practitioner reprimanded and his entitlement to practise is limited to work done under the supervision of a practitioner of no less than 5 years standing
The Practitioner is also ordered to pay costs. Category: B
Representation: Counsel:
Applicant : Mr P Quinlan SC and Ms P Le Miere
Respondent : Mr M McCusker QC
Solicitors:
Applicant : Legal Profession Complaints Committee
Respondent : Mony De Kerloy
Case(s) referred to in decision(s):
Legal Practitioners Complaints Committee and Benari [2005] WASAT 213 (S)
Legal Profession Complaints Committee and Caine [2010] WASAT 178 (S)
Legal Profession Complaints Committee and Detata [2011] WASAT 91
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 Under the Legal Profession Act 2008 (WA) (LP Act), the Legal Profession Complaints Committee (Committee) alleged that Mr Detata had engaged in professional misconduct in that he provided an undertaking to another practitioner not to release certain money from his firm's trust account without the agreement in particular of the other practitioner's client. Mr Detata had paid some of the money to the other practitioner's client but then released the balance of the money to its owner without the knowledge and consent of the other practitioner and in the absence of any agreement between the owner of the money and the other practitioner's client. 2 In a reserved decision delivered on 21 June 2011 the Tribunal made a finding that the Practitioner had engaged in professional misconduct; see Legal Profession Complaints Committee and Detata [2011] WASAT 91 3 The parties then made submissions concerning the appropriate disciplinary outcome and the question of costs.
The principles to be applied 4 The applicable principles are well settled and not in dispute between the parties. The object of disciplinary proceedings is the protection of the public and the maintenance of proper standards in the legal profession rather than punishment. The effective administration of justice depends on the honesty and reliability of practitioners. The penalty should act as a deterrent but should also reassure the public that professional misconduct on the part of practitioners will not be tolerated.
The Committee's submissions 5 The Committee's submissions included that the breach of the undertaking was particularly serious in that: (Page 4)
(c) the release of the money was effectively irreparable; (d) the breach of the undertaking was a positive act rather than one forgotten or overlooked, as the Practitioner was aware that the breach might be challenged and yet took no steps to alert the other practitioner; and (e) the Practitioner has at no time acknowledged or even apparently considered the possibility that his actions were wrong. 6 The Committee submits that suspension of the Practitioner's local practising certificate, at least for a short period, is warranted and, if not, a fine at the upper end of the range would be an appropriate penalty.
The Practitioner's submissions and background 7 The Practitioner was admitted to practice in 1990 and has not until now been the subject of any disciplinary proceedings. 8 The Practitioner himself asserts that although he must accept the decision of the Tribunal he does not agree with the Tribunal's finding and says that he did not act deliberately or recklessly. 9 The Practitioner through his Counsel submitted that his conduct in the circumstances amounted to no more than negligence and that the references filed on behalf of the Practitioner show that he is practising in a competent and professional manner. 10 The references filed, including a reference from the Practitioner's current employers, do attest to the competence and integrity of the Practitioner in the experience of the referees who are fellow practitioners.
Disciplinary outcome 11 The Tribunal notes the previous good record of the Practitioner, that there is no evidence that the Practitioner gained personally from his conduct, and that for the purpose of considering penalty it is appropriate to presume that he recklessly, rather than deliberately and knowingly, breached his undertaking. 12 However, because the Practitioner does not acknowledge any professional misconduct, the Tribunal must determine a penalty that ensures that the conduct which the Tribunal has found to be at least (Page 5)
reckless is not repeated. That penalty should also go at least some way to ensuring that the Practitioner obtains a satisfactory appreciation of his obligations so that in future the public, other practitioners and the courts can place their trust in his conduct. 13 The Practitioner must appreciate that the meaning he gives to any undertaking he makes in the course of his professional practice must be the meaning the words used ordinarily have and not some contrary meaning he subjectively wishes to put on them. Where there is doubt about such meaning, he should have liaised with the recipient and, if the matter still cannot be agreed, taken the opinion of more senior counsel. 14 An order for restitution in criminal proceedings for the purposes of sentencing only (especially where the sentencing Judge expressly leaves the balance of the civil liability claim to be determined by commercial lawyers) was plainly no foundation for breaching that limb of the undertaking given in civil proceedings which was expressed to be subject to court order. 15 It is critical to the administration of justice that practitioners can be relied upon to do what they say they are going to do. 16 Of course, the consequences of the Tribunal's finding of professional misconduct against the Practitioner are going to impact on the Practitioner's future and will also bring home to the Practitioner the seriousness of his misconduct. The Tribunal also considers that it is appropriate to take account of the Practitioner's personal circumstances. The Tribunal has formed the view that a period of suspension or a fine (particularly in light of the Tribunal's decision as to costs below) would cause the Practitioner unnecessary hardship. 17 In the circumstances the Tribunal has determined that the Practitioner should be reprimanded and should undertake 24 months' practice employed by and under supervision of a practitioner approved by the Legal Practice Board and who has no less than five years postadmission experience.
Costs 18 Notwithstanding the general position set out in s 87(1) of the State Administrative Tribunal Act 2004 (WA), where disciplinary proceedings have been commenced in the public interest by a vocational regulatory body and the vocational regulatory body has been successful in the prosecution of those proceedings, ordinarily the affected person will (Page 6)
be ordered to contribute to the costs of the proceedings which are incurred by the vocational regulatory body; see Legal Practitioners Complaints Committee and Benari [2005] WASAT 213 (S) at [25] (Benari); Legal Profession Complaints Committee and Caine [2010] WASAT 178 (S) at [18] [22]. 19 The contribution the affected person should be required to make lies in the discretion of the Tribunal, having regard to all the circumstances of the case. Special matters may be taken into account to determine what is a fair and reasonable costs order; see Benari at [26] [29]. 20 Having considered the submissions of the applicant and respondent and taking account of the range of issues and time spent in these proceedings, the Tribunal finds that the respondent should be ordered to pay a sum of $10,000.00 being a substantial contribution to the costs incurred by the applicant.
Orders 21 The Tribunal therefore makes the following final orders in these proceedings: (Page 7)
4. The Practitioner is to pay on account of costs and disbursements of the proceedings the sum of $10,000 to the Legal Profession Complaints Committee within 28 days. |