LEGAL PROFESSION COMPLAINTS COMMITTEE and GIUDICE
[2015] WASAT 10 (S)
•23 JUNE 2015
LEGAL PROFESSION COMPLAINTS COMMITTEE and GIUDICE [2015] WASAT 10 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 10 (S) | |
| LEGAL PROFESSION ACT 2008 (WA) | |||
| Case No: | VR:113/2011 | 6 NOVEMBER 2014 WRITTEN SUBMISSIONS 25 MARCH AND 22 APRIL 2015 | |
| Coram: | JUDGE T SHARP (DEPUTY PRESIDENT) MS S GILLETT (MEMBER) MR C PHILLIPS (SENIOR SESSIONAL MEMBER) | 23/06/15 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Practitioner suspended from practice for a period of six months Practitioner to pay the Legal Profession Complaints Committee's costs in the amount of $9,450 | ||
| B | |||
| PDF Version |
| Parties: | LEGAL PROFESSION COMPLAINTS COMMITTEE PETER GEORGE GIUDICE |
Catchwords: | Vocational regulation Legal practitioners Professional misconduct Penalty Suspension from practice Costs |
Legislation: | Legal Profession Act 2008 (WA), s 439, s 441 State Administrative Tribunal Act 2004 (WA), s 87(2) |
Case References: | Barwick v Council of Law Society (NSW) [2004] NSWCA 32 Fidock and Legal Profession Complaints Committee [2013] WASCA 108 Kyle and Legal Practitioner's Complaints Committee [1999] WASCA 115 Legal Practitioner's Complaints Committee and Benari [2005] WASAT 213 (S) Legal Practitioners Complaints Committee v Camp [2010] WASC 188 Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119 Legal Practitioners Complaints Committee v Pepe [2009] WASC 39 Legal Profession Complaints Committee and Giudice [2015] WASAT 10 Legal Profession Complaints Committee and Segler [2013] WASAT 117 (S) Legal Profession Complaints Committee and Segler [2014] WASC 159 Legal Profession Complaints Committee and Wells [2014] WASAT 112 (S) Legal Profession Complaints Committee v Masten [2011] WASC 71 Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) Mijatovic and Legal Practitioners Complaints Committee (2008) 37 WAR 149 Re Davis (1947) 75 CLR 409 The Council of the Queensland Law Society v Wright [2001] QCA 58 |
Orders | On the application before Deputy President, Judge Sharp and Senior Sessional Member Gillett and Senior Sessional Member Phillips on 23 June 2015, it is ordered that:,1. In relation to the finding that the practitioner is guilty of professional misconduct contrary to the Legal Profession Act 2008 (WA) when he caused to be sworn, filed and served in court proceedings an affidavit sworn by his client which contained a false statement and he recklessly disregarded whether the statement was true or false, the practitioner's local practising certificate is suspended for a period of six months to commence 30 days from the date of this order.,2. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) the respondent must pay to the applicant its costs of the proceeding in terms of disbursements to the extent of $9,450 within four weeks of the date of this order or within such further period as agreed by the parties. |
Summary | Following the finding of the Tribunal that Peter George Giudice, a legal practitioner, is guilty of professional misconduct, the Tribunal required the parties to file submissions in relation to penalty and costs. The Tribunal directed, subject to any further order, that these issues were to be determined entirely on the documents.,The Tribunal determined that the appropriate professional disciplinary consequence of Mr Giudice's professional misconduct is to suspend Mr Giudice from practice for a period of six months.,The Tribunal also ordered Mr Giudice to pay costs in terms of disbursements incurred by the Legal Profession Complaints Committee in the proceeding in the amount of $9,450. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and GIUDICE [2015] WASAT 10 (S) MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT)
- MS S GILLETT (MEMBER)
MR C PHILLIPS (SENIOR SESSIONAL MEMBER)
- WRITTEN SUBMISSIONS 25 MARCH AND 22 APRIL 2015
- Applicant
AND
PETER GEORGE GIUDICE
Respondent
Catchwords:
Vocational regulation Legal practitioners Professional misconduct Penalty Suspension from practice Costs
Legislation:
Legal Profession Act 2008 (WA), s 439, s 441
State Administrative Tribunal Act 2004 (WA), s 87(2)
Result:
Practitioner suspended from practice for a period of six months
Practitioner to pay the Legal Profession Complaints Committee's costs in the amount of $9,450
Summary of Tribunal's decision:
Following the finding of the Tribunal that Peter George Giudice, a legal practitioner, is guilty of professional misconduct, the Tribunal required the parties to file submissions in relation to penalty and costs. The Tribunal directed, subject to any further order, that these issues were to be determined entirely on the documents.
The Tribunal determined that the appropriate professional disciplinary consequence of Mr Giudice's professional misconduct is to suspend Mr Giudice from practice for a period of six months.
The Tribunal also ordered Mr Giudice to pay costs in terms of disbursements incurred by the Legal Profession Complaints Committee in the proceeding in the amount of $9,450.
Category: B
Representation:
Counsel:
Applicant : Mr MD Cuerden SC
Respondent : Mr D Armstrong
Solicitors:
Applicant : Legal Profession Complaints Committee
Respondent : N/A
Case(s) referred to in decision(s):
Barwick v Council of Law Society (NSW) [2004] NSWCA 32
Fidock and Legal Profession Complaints Committee [2013] WASCA 108
Kyle and Legal Practitioner's Complaints Committee [1999] WASCA 115
Legal Practitioner's Complaints Committee and Benari [2005] WASAT 213 (S)
Legal Practitioners Complaints Committee v Camp [2010] WASC 188
Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211
Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119
Legal Practitioners Complaints Committee v Pepe [2009] WASC 39
Legal Profession Complaints Committee and Giudice [2015] WASAT 10
Legal Profession Complaints Committee and Segler [2013] WASAT 117 (S)
Legal Profession Complaints Committee and Segler [2014] WASC 159
Legal Profession Complaints Committee and Wells [2014] WASAT 112 (S)
Legal Profession Complaints Committee v Masten [2011] WASC 71
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
Mijatovic and Legal Practitioners Complaints Committee (2008) 37 WAR 149
Re Davis (1947) 75 CLR 409
The Council of the Queensland Law Society v Wright [2001] QCA 58
Introduction
1 In 2012, the respondent (practitioner) was found guilty by the Tribunal of unsatisfactory professional conduct contrary to the Legal Profession Act 2008 (WA) (Act). An affidavit by one of his clients was prepared under his supervision (affidavit), which he then caused to be sworn, filed and served in court proceedings. The Tribunal found that the affidavit contained a false statement and that the practitioner had recklessly disregarded the truth or falsity of that statement.
2 The practitioner applied to the Court of Appeal for leave to appeal from that decision. Leave was granted and the appeal was allowed. The Court of Appeal remitted the matter to the Tribunal for further consideration in accordance with the Court's reasons.
3 On 5 February 2015, after reconsidering the evidence before it, the Tribunal according to the majority of the sitting members confirmed its decision that the affidavit prepared under the practitioner's supervision contained a false statement. The Tribunal found that while the practitioner did not deliberately include the false statement, he recklessly disregarded whether the statement might be false.
4 The Tribunal made its finding in the following terms:
There is a finding that [the practitioner] is guilty of professional misconduct contrary to [the Act] when he caused to be sworn, filed and served in court proceedings an affidavit sworn by his client which contained a false statement and he recklessly disregarded whether the statement was true or false. This conduct involves a substantial failure to reach a reasonable standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner: Legal Profession Complaints Committee and Giudice[2015] WASAT 10 (Giudice 2015 Decision).
5 The Tribunal ordered that the applicant (Committee) and the practitioner file submissions on penalty and that the question of penalty should be dealt with on the papers. The parties subsequently filed their written submissions in accordance with those directions.
Facts
6 The following facts were established in the Giudice 2015 Decisionat [11] [20]:
[11] The practitioner's client separated from his wife in October 2006. The client and his wife had two children of their union. In addition, two children of the client's wife from a prior relationship were ordinary members of the household. Following the separation of the client and his wife, all four children continued to live with the client's wife at the former matrimonial home.
[12] In November 2008, the practitioner's client was charged with seven charges of indecently dealing with, and two charges of sexual penetration of, a child under the age of 13 years. In each case, the complainant was one of the children of the client's wife from her previous relationship. Following his arrest, the client was granted bail in the Magistrates Court subject to a number of conditions, one of which was a condition to the effect that the client was 'not to contact or attempt to contact the complainant or the complainant's family by whatever means'.
[13] The client retained the practitioner to act on his behalf shortly after the grant of bail. Subsequently, the client instructed the practitioner that he intended to plead guilty to the charges which had been brought against him, and that he wished to have the bail conditions varied so as to allow him to have contact with his children.
[14] In early January 2009, the practitioner represented the client in the Magistrates Court and, in accordance with instructions, entered pleas of guilty to all charges which had been brought. The client was remanded to appear in the District Court for sentencing some months later. Bail was renewed on the same terms, including the condition precluding any contact between the client and his children.
[15] In the meantime, without informing the practitioner, the client had filed an application for a variation of the conditions of bail. That application came on for hearing in the Magistrates Court on 19 January 2009. Mr Arndt, who was a lawyer employed in the practitioner's office, happened to be in Court on another matter and, with the consent of the client, appeared on his behalf on the hearing of the application to vary the conditions of bail. At that hearing, the magistrate adjourned the application for some days to enable a report to be obtained.
[16] The matter came back on for hearing on 22 January 2009. Mr Arndt again appeared on behalf of the client. After hearing evidence and submissions, the magistrate agreed to vary some of the conditions of bail to enable the client to retrieve some personal effects.
[17] In relation to the application to vary the condition of bail which prohibited contact between the client and his children, the magistrate said:
I don't disagree with much of what Mr Arndt said that it is inevitable that there be some contact between [the Client] and his children and that is likely to be resolved in family law proceedings. For those reasons and because of the suitability of family law proceedings resolving the appropriate interests of the parties, I would be prepared to vary bail only to this extent to provide that there be no contact or attempt to contact the complainant or the complaint's family by whatever means except as regards [the Client's children] as provided in any order made in proceedings under the Family Law Act to which [the Client's Wife] is a party [31].
[18] Mr Arndt made a handwritten note of the proceedings which included a reference to this aspect of the magistrate's decision. He also made an electronic entry in the records maintained by the practitioner's firm in relation to his appearance before the magistrate on behalf of the client. That note recorded an order by the magistrate to the effect that the client was 'not to contact the complainant or siblings, except as regards the two natural children, as ordered in any Family Court proceedings to which the wife is a party'.
[19] Mr Arndt also wrote to the client reporting upon the arguments which had been presented during the hearing, including the fact that the client's wife was concerned that contact with the client might have a detrimental effect upon the children, that the Department for Child Protection had concerns with respect to the emotional risks to the children, although they had the capacity to supervise any contact, and that the prosecutor had opposed any variation to the conditions of bail. The letter reported:
The Magistrate formed the view that it was not appropriate to vary your bail conditions to allow the contact you sought, but was prepared to vary your bail so that you may have contact with the children as provided by any order of a Court exercising powers under the Family Law Act to which their mother is a party.
[20] In early February 2009, the client retained the practitioner to act on his behalf for the purposes of applying to the Magistrates Court, sitting as the Family Court of Western Australia. The client was seeking an order permitting him to have contact with his biological children prior to him being sentenced in the District Court, and to have telephone contact with those children after being sentenced. The practitioner delegated the task of drafting the application and the affidavit of the client in support of that application to a law clerk. The law clerk, Ms Armstrong, had only been working with the practitioner for a few weeks and had no prior experience as a law clerk. She prepared the client's affidavit under the supervision of the practitioner and with some assistance from Mr Arndt and another law clerk. Paragraph 20 of that affidavit asserted:
My original bail conditions of 27 November 2008 were that I was not to contact or attempt to contact the complainant or the complaint [sic] family by any means, [sic] On 22 January 2009 my bail conditions were varied so that I may spend time with the children supervised.
7 In the Giudice 2015 Decision, the Tribunal found that the practitioner knew that when he settled the affidavit there was a risk that the statement in paragraph 20 was untrue or false. We also found that the practitioner consciously disregarded that risk.
8 The Tribunal concluded that the practitioner's conduct must be categorised as professional misconduct.
Applicable legislation
9 As the Tribunal has previously concluded, it is the Act which applies to the conduct engaged in by the practitioner, even though that conduct occurred prior to 1 March 2009, the date when the Act commenced operation. Accordingly, the Tribunal may make any one or more of the orders under s 439 and s 441 of the Act.
Principles to be applied
10 The Tribunal in Legal Profession Complaints Committee and Wells[2014] WASAT 112 (S) identified the relevant factors to be taken into consideration when determining penalty. These include the following:
a) Any need to protect the public against further misconduct by the practitioner.
b) The need to protect the public through general deterrence of other practitioners from similar conduct.
c) The need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions and thereby articulating the high standards expected of the profession, such that, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval.
d) In the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner.
e) Whether the practitioner has breached any Act, regulations, guidelines or code of conduct, and whether the practitioner has done so knowingly.
f) Whether the practitioner's conduct demonstrated incompetence, and if so to what level.
g) Whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future.
h) The practitioner's disciplinary history.
i) Whether or not the practitioner understands the error of his ways, including an assessment of any remorse and insight (or lack thereof) shown by the practitioner, since a practitioner who fails to understand the significance and consequences of misconduct is a risk to the community.
j) The desirability of making available to the public any special skills possessed by the practitioner.
k) The practitioner's personal circumstances at the time of the conduct and at the time of the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of legal practice.
l) Any other matters relevant to the practitioner's fitness to practice and other matters which may be regarded as aggravating the conduct or mitigating its seriousness. In general, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive.
11 The Committee seeks a period of suspension of the practitioner's local practising certificate in this case. The Committee draws the Tribunal's attention to the following relevant principles in relation to the imposition of suspensions, which we accept.
12 In Legal Practitioners Complaints Committee v Camp [2010] WASC 188 at [80], the Supreme Court stated that a suspension indicates a serious breach of professional obligations reflecting, to a significant degree, upon the practitioner's fitness to practise. However, the Supreme Court held that suspensions are appropriate where there are prospects that this may only be an occasional or transient failing and that the practitioner has or may soon regain the essential qualities of character and trustworthiness necessary to be a member of the profession.
13 In Legal Practitioners Complaints Committee v Pepe[2009] WASC 39 at [12], the Supreme Court stated that the proper use of suspension is for those cases in which a legal practitioner has fallen below the high standards to be expected, but not in such a way as to indicate that he or she lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner.
The Committee's submissions
14 The Committee argues that the appropriate disciplinary penalty in this matter is a period of suspension for six months. The Committee's submissions in this regard are as follows.
15 The Committee submits that the findings that the practitioner consciously disregarded the risk that the affidavit contained a false statement, and thereby misled the court in these circumstances are serious. The Committee points out that the practitioner's conduct has been found to represent a substantial failure to reach and maintain a standard of competence and diligence expected of a legal practitioner by members of the public.
16 The Committee also says that the practitioner's conduct demonstrates a lack of insight into the unprofessional nature of his conduct. In this regard, the Committee sets out what they consider to be some key factors:
1) The practitioner refused to accept that paragraph 20 of the affidavit was false or misleading. The practitioner's reluctance to concede that fact before the Tribunal, and his assertion that the affidavit was true 'so far as it goes', reveal a lack of understanding as to his obligations of candour and frankness to the court.
2) Despite the Court of Appeal having made it clear that paragraph 20 of the affidavit was false, in the written submissions filed on the practitioner's behalf prior to the further hearing before the Tribunal, the practitioner through his solicitor continued to assert that any further inquiry was not warranted.
3) It is significant that the Tribunal expressly rejected the practitioner's evidence given before the Tribunal in important respects: see Barwick v Council of Law Society (NSW)[2004] NSWCA 32 at [108] - [109]; Mijatovic and Legal Practitioners Complaints Committee(2008) 37 WAR 149 for the significance which may be attached to the Tribunal's rejection of the practitioner's evidence.
17 The Committee says the primary consideration warranting a period of suspension is the maintenance of standards in the profession, by marking the Tribunal's disapproval of the practitioner's conduct.
18 The Committee also says the need to protect the public against further misconduct is relevant to the extent that the practitioner has demonstrated a lack of insight.
19 The Committee points out that this is a case where the practitioner has misled the Court, albeit recklessly rather than deliberately. The Committee considers that recklessness is a species of dishonesty in the sense that there is a conscious or wilful indifference to the truth.
20 While the incident was isolated and the practitioner has no relevant disciplinary history, the Committee says that this is undermined by the practitioner's lack of insight.
21 The Committee says that the practitioner's lack of insight and remorse is significant in this case.
22 Even though the practitioner is a sole practitioner in Geraldton, the Committee says that it is not aware of any special legal skills that the practitioner has that would not otherwise be available to the public if he was suspended. The Committee points out that there are eight other law firms in Geraldton (not including the practitioner's firm and the Geraldton Community Legal Centre).
23 The Committee says that because of the seriousness of the practitioner's offence and his lack of insight, any personal or other factors identified by the practitioner will have limited relevance to this case.
The practitioner's submissions
24 We should say at this point that a large portion of the practitioner's outline of submissions continues to focus on his argument that he did not recklessly disregard the truth or falsity of the statement in the affidavit. For example, the practitioner's submissions on penalty state at paragraph [20] that 'The practitioner was unaware that the statement in paragraph 20 was false or that there was a risk paragraph 20 was false or that he consciously disregarded that risk'.
25 To the extent that the practitioner's submissions seek to challenge or reopen the Tribunal's original findings, they provide us with no assistance and will be disregarded.
26 We turn now to the practitioner's other submissions in relation to penalty.
27 The practitioner rejects the submissions of the Committee in relation to penalty and says that the appropriate penalty in this case is a reprimand. The practitioner says that he should be sentenced on the basis of the 'facts most favourable to him'. He says that the re-hearing heard no further evidence, and that he was penalised previously with a reprimand, fine and costs on the basis of the evidence then before the Tribunal.
28 The practitioner says that this matter can be distinguished from other cases involving practitioners misleading the court or preparing a false affidavit, such as Kyle and Legal Practitioner's Complaints Committee [1999] WASCA 115 (Kyle)and Fidock and Legal Profession Complaints Committee [2013] WASCA 108. The practitioner says that in those cases the practitioners' purposes in misleading the Court were identified. The practitioner says that the purpose for misleading the Court has not been identified in this matter.
29 In particular, the practitioner says that in Kyle, the practitioner was reprimanded for deliberately and knowingly misleading the Supreme Court to gain a perceived tactical advantage. Here the practitioner did not deliberately mislead the Court. The practitioner says that his offence was 'less than in Kyle'.
30 The practitioner says that he 'acknowledges paragraph 20 could have been worded better', but does not acknowledge that he was reckless.
31 In relation to his personal circumstances, the practitioner says as follows.
32 The practitioner points out that he is now 60 years old. He has appealed the Guidice 2015 Decision to the Court of Appeal and maintains his innocence.
33 The practitioner trades as a sole practitioner with the name George Giudice Law Chambers. He employs three professional staff, including two restricted practitioners and a paralegal, all of whom are relatively inexperienced.
34 The practitioner's business has 246 current files. The practitioner has a general practice in Geraldton and the region practising in crime including:
a) serious crime in the Supreme Court and District Court;
b) appellant work in the High Court, Court of Appeal and Supreme Court;
c) family law;
d) crime and civil in the Magistrate's Court;
e) personal injury and civil litigation in the Supreme Court and the District Court;
f) criminal injuries compensation;
g) workers compensation; and
h) probate.
35 The practitioner submits that he has at least 37 days of trials and pretrial hearings listed before November 2015. These include trials for a number of serious criminal matters.
36 In relation to the other law firms in Geraldton, the practitioner says as follows:
a) none of the firms engage in general practice to the degree and extent of the practitioner's practice;
b) some are sole practitioners;
c) some of the practitioners are young and inexperienced;
d) two firms practise solely in civil litigation, commercial areas and estates;
e) two firms basically practise in family law and domestic violence matters;
f) one firm has one full-time practitioner and three parttime practitioners;
g) one practitioner is working to retirement, is not accepting new instructions and is winding up his practice;
h) none have the years of experience and qualifications of the practitioner particularly in serious crime and appellant work; and
i) there is no one in Geraldton or the region who can replace the practitioner.
The appropriate penalty
37 The practitioner's conduct in this matter was of a serious nature. Honesty, fairness and integrity are all essential characteristics expected of persons who practise law; Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119 at [8], Legal Profession Complaints Committee v Masten[2011] WASC 71 at [19]. Further, fitness to practise law requires that practitioners must have the personal confidence of their clients, fellow practitioners and judges: Re Davis (1947) 75 CLR 409 at [420]. Thus, this Tribunal must regard the practitioner's misconduct in causing an affidavit containing a false statement to be prepared under his supervision, sworn and filed in court proceedings as serious. This is notwithstanding the fact that the practitioner's conduct was reckless and not deliberate.
38 The practitioner argues that the decision in Kylerelates to more serious conduct than in this case. He points to the fact that only a reprimand was imposed in Kyle. However, that matter, by contrast, involved a less serious finding of unprofessional conduct, not professional misconduct.
39 This Tribunal has consistently imposed penalties for misleading the court which reflect the seriousness of any breaches of a practitioner's obligations in this regard: see for example Legal Profession Complaints Committee and Segler [2013] WASAT 117 (S) at [48] - [49] (Segler). In Segler, the respondent made a false statement to the Family Court that no offer of settlement had been proposed in the relevant proceedings. In fact, a settlement offer had been made but not in the prescribed form. Although the practitioner's statement was technically accurate to that extent, the Tribunal found that the practitioner had misled the Family Court, and the practitioner was subsequently struck off the Roll of Practitioners: Legal Profession Complaints Committee and Segler [2014] WASC 159.
40 As McMurdo P said in The Council of the Queensland Law Society v Wright [2001] QCA 58 at [67]:
Breaches such as [misleading the court] are hard to detect and once established to the requisite standard are deserving of condign punishment, not only as a deterrent but also to reassure the public that such conduct on the part of lawyers will not be tolerated.
41 Another factor relevant to our determination of penalty is the practitioner's ability or failure to understand the impropriety of his or her conduct; Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 at [35]. In this matter, the Tribunal is unconvinced that the practitioner has shown any insight in relation to his wrongdoing. This is particularly apparent from the practitioner's submissions on penalty, where he continues to maintain that the statement in the affidavit was 'true as far as it goes'. Indeed, the only concession the practitioner seems to make about his wrongdoing is that the offending paragraph of the affidavit 'could have been worded better'. We can have no assurance here that the practitioner appreciates the impropriety of his conduct.
42 We do not accept the practitioner's submissions that the City of Geraldton would suffer from a lack of adequate legal representation if he were to be suspended for a period of time. We have seen no evidence to support that proposition.
43 Furthermore, while the practitioner and his staff may suffer some hardship from the suspension of his practice, this does not override our duty to uphold confidence in the honesty, integrity and high standards of the legal profession.
44 We consider that a six month suspension is an appropriate penalty in this case.
Costs
45 The costs order following the original proceedings was set aside when the practitioner's appeal against the finding was allowed. In the Giudice 2015 Decision, the Tribunal indicated that we would hear from the parties in respect of the appropriate order for the costs of the original proceedings. We also expressed the provisional view that there should be no orders for the costs of the proceedings in the Tribunal following the Court of Appeal's decision: Giudice 2015 Decision at [81].
46 The Tribunal's position was and is that, 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 should be ordered to contribute to the cost of the proceedings incurred by the vocational regulatory body; Legal Practitioner's Complaints Committee and Benari [2005] WASAT 213 (S) at [25].
47 The Tribunal considered the issue of costs of the original proceedings in its supplementary decision published on 23 October 2012 and the Committee says that the position has not changed with respect to the issues to be considered regarding those costs. In fact, the Committee submits, the practitioner has now been found guilty of professional misconduct rather than unsatisfactory professional conduct. The Committee therefore seeks an order that the practitioner pay the sum of $9,450 towards the applicant's costs of the original proceedings.
48 The Committee also seeks an order that the practitioner pay a contribution towards its costs of the further proceedings following the Court of Appeal's decision.
49 The practitioner opposes the Committee's application for both the costs of the original hearing and for reconsideration and applies himself for an order for costs fixed in the sum of $17,160. The practitioner says that he appealed to the Court of Appeal which set aside the decision of the Tribunal and remitted the matter to the Tribunal for further consideration. The fact that the Committee has incurred the costs of the reconsideration is, in the practitioner's submission, not of his making. The practitioner says that he himself has incurred substantial costs through his instructing lawyer in the appeal and the reconsideration.
50 In relation to the costs of the original proceedings, we accept the Committee's submissions. We can see no reason to depart from the Tribunal's usual position, which is to award costs where a vocational body is successful in disciplinary proceedings. As the Tribunal observed in Medical Board of Western Australia and Roberman[2005] WASAT 81 (S), regulatory bodies perform a function which promotes the public interest, and usually with limited resources. It is in the public interest that such bodies have an expectation that, if the allegation is made out, the offending professional will meet or at least contribute to the costs incurred in bringing about the application. As the Committee was ultimately successful in this matter, it is appropriate that they are awarded their costs of the original proceedings. We consider that the sum claimed, $9,450, is an appropriate contribution to the Committee's costs.
51 However, we do not agree with the Committee's submissions in relation to the costs of the reconsideration. We agree with the practitioner that the extra costs accrued on the matter being returned to this Tribunal are not of his making. We maintain our position that the parties should bear their own costs in respect of the further proceedings in the Tribunal.
52 Further, we dismiss the practitioner's application for costs. The Tribunal's position in that regard is that costs will not ordinarily be awarded against a vocational regulatory body. The practitioner has not persuaded the Tribunal that there is any reason to depart from this position.
Orders
53 The Tribunal orders
1. In relation to the finding that the practitioner is guilty of professional misconduct contrary to the Legal Profession Act 2008 (WA) when he caused to be sworn, filed and served in court proceedings an affidavit sworn by his client which contained a false statement and he recklessly disregarded whether the statement was true or false, the practitioner's local practising certificate is suspended for a period of six months to commence 30 days from the date of this order.
2. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) the respondent must pay to the applicant its costs of the proceeding in terms of disbursements to the extent of $9,450 within four weeks of the date of this order or within such further period as agreed by the parties.
I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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