| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and GIUDICE [2012] WASAT 144 (S) MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT) MS S GILLETT (MEMBER)
MR C PHILLIPS (SENIOR SESSIONAL MEMBER)
HEARD : 28, 29, 30 AND 31 MAY 2012 WRITTEN SUBMISSIONS FILED ON 17 AUGUST 2012 AND 17 SEPTEMBER 2012
SUPPLEMENTARY DECISION DETERMINED ON THE DOCUMENTS
DELIVERED : 26 JULY 2012 PUBLISHED : 23 OCTOBER 2012 FILE NO/S : VR 113 of 2011 BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE Applicant
AND
PETER GEORGE GIUDICE
Respondent
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Catchwords: Legal practitioner Unsatisfactory professional conduct Affidavit in court proceedings containing a false statement Reckless disregard whether the statement was true or false Appropriate penalty Legislation: Legal Profession Act 2008 (WA), s 428, s 428(1), s 441(a), s 439(d)
State Administrative Tribunal Act 2004 (WA), s 87(1) Result: Practitioner fined, reprimanded and ordered to pay costs Summary of Tribunal's decision: On 26 July 2012, the Tribunal published reasons for its decision in respect of various complaints brought by the Legal Profession Complaints Committee against a solicitor, Mr Peter George Giudice. The Tribunal made one finding of unsatisfactory professional conduct against Mr Giudice. The parties then made written submissions as to penalty.
The Complaints Committee sought orders that the Practitioner be publicly reprimanded and that a fine of $8,000 be imposed. The Complaints Committee also sought an order for payment by the Practitioner of one half of its costs in relation to the proceedings.
The Practitioner on the other hand submitted that a private reprimand was an appropriate disciplinary outcome. He also sought an order for payment by the Complaints Committee of his costs in relation to the proceedings, on the basis that some of the allegations made by the Complaints Committee against the Practitioner were not made out.
The Tribunal considered the principles to be applied in relation to disciplinary penalties, the nature of the findings against Mr Giudice and the parties' respective submissions. The Tribunal concluded that the appropriate penalty in relation to the finding of unsatisfactory professional conduct was that the Practitioner be publically reprimanded and pay a fine of $8,000. The Tribunal also ordered that the Practitioner should pay the costs claimed by the Complaints Committee.
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Category: B
Representation: Counsel:
Applicant : Mr P Yovich and Mr R Fletcher
Respondent : Mr D Williams QC AO
Solicitors:
Applicant : Legal Profession Complaints Committee
Respondent : Altorfer & Stow
Case(s) referred to in decision(s):
Legal Practitioners Complaints Committee and Benari [2005] WASAT 213 (S)
Legal Practitioners Complaints Committee v Camp [2010] WASC 188
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
Motor Vehicle Industry Board and Dawson [2006] WASAT 8
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 Under s 428 of the Legal Profession Act 2008 (WA) (LP Act), the Legal Profession Complaints Committee (Committee) referred three matters concerning Mr Peter George Giudice (Practitioner) to the Tribunal, seeking findings under s 438(1) of the LP Act that the Practitioner has engaged in professional misconduct by: 1) on or about 17 February 2009, causing to be prepared under his supervision, settling and causing to be sworn, filed and served in Family Court proceedings an affidavit sworn by his client which contained a false statement, when the Practitioner knew that the statement was false or, alternatively, recklessly disregarded whether the statement was true or false; 2) between about 17 April 2009 and about 18 June 2009, acting for his client in defending a charge of making a false statement on oath, when he knew that he would be required to give evidence at any trial of the charge and, therefore, had a conflict of interest; and 3) between about 9 June 2009 and about 6 August 2009, unduly delaying in delivering files to his client in relation to the client's matters after the client had terminated his retainer. 2 There was a fourth allegation made by the Committee in its application which was withdrawn by the Committee by a letter dated 21 May 2012. 3 In reasons delivered on 26 July 2012 (Legal Profession Complaints Committee and Giudice [2012] WASAT 144) (Giudice) the Tribunal made findings that the Practitioner was guilty of unsatisfactory professional conduct under the LP Act when he caused to be prepared under his supervision and caused to be sworn, filed and served in court proceedings an affidavit by his client which contained a false statement. The Tribunal found that the Practitioner recklessly disregarded whether the statement was true or false and thus failed to reach the reasonable standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. (Page 5)
4 The Tribunal made no other findings of either professional misconduct or unsatisfactory professional conduct in respect of the other allegations made by the Committee against the Practitioner. 5 The parties then made submissions concerning the appropriate disciplinary outcome and the question of costs.
The principles to be applied 6 It is not in dispute between the parties that the object of disciplinary proceedings is to secure the protection of the public and to maintain proper standards by members of the legal profession. Punishment is not one of the objects of disciplinary proceedings. The penalty must demonstrate without doubt the standards to be observed by practitioners; Legal Practitioners Complaints Committee v Camp [2010] WASC 188 at [79].
The Committee's submissions 7 The Committee submits that the conduct of the Practitioner the subject of the Tribunal's finding against the Practitioner represents a serious breach of the Practitioner's duty to the courts. While the Committee does not seek that the Practitioner's local practising certificate be suspended, it nonetheless considers that the Practitioner's conduct warrants a significant penalty. It submits that an appropriate penalty would be the payment of a fine in the order of $8,000 under s 441(a) of the LP Act and a public reprimand under s 439(d) of the LP Act.
The Practitioner's submissions 8 The Practitioner points out that the Tribunal did not make any finding that the Practitioner deliberately misled the court; Giudice at [65]. He also says that no findings were made against him in respect of the Committee's other allegations and he 'maintains his innocence' in respect of the allegation which was made out. 9 He submits that remorse, contrition and an insight into the wrongness of his behaviour are not factors to be considered in determining penalty. He maintains that he cooperated with the Committee in the investigation of the complaint and that he was 'substantially successful of his defence of the complaints'. 10 He says that he 'has no relevant previous record'. (Page 6)
11 The Practitioner sets out in his submissions his undoubtedly extensive history of services to the local community and says that he is concerned about the 'ramifications to his practice and himself personally as a result of the Tribunal's finding'. 12 The Practitioner submits that a penalty of a public reprimand and the fine contended for by the Committee is severe and inappropriate and suggests that the appropriate disciplinary outcome should be a private reprimand, 'with or without a modest fine'. 13 The Practitioner also provided to the Tribunal a statement from Mrs Lorraine Giudice, the Practitioner's wife, and requests that the Tribunal consider this as part of his submissions. This statement describes the Practitioner's 'anguish, incredulity and torment' during the course of the proceedings against him and she speaks of how '[t]he prospect of [the Practitioner] being struck off was stressful for all of us'. She says that the Practitioner's local practising certificate was not renewed prior to the Tribunal's decision in Giudice being published and she says that her husband has 'been through enough already'.
Disciplinary outcome 14 There is no doubt as to the seriousness of the Tribunal's finding against the Practitioner in Giudice. As the Practitioner correctly points out, the Tribunal did not believe that the Practitioner deliberately included a false statement in the affidavit which he prepared or settled for signature by his client. However, the Tribunal found that he acted in a way which was more than careless and that he showed a culpable indifference as to whether or not the affidavit was true and to the consequences; Giudice at [72]. Those consequences could have been serious and did at least lead to his client being charged with the criminal act of making a false statement under oath. 15 The fact that the Practitioner continues to deny any wrongdoing is also of concern to the Tribunal. 16 The Tribunal is unsure what the Practitioner means when he says that he has 'no relevant previous record'. Two findings of unsatisfactory professional conduct were made against him by the Tribunal in 2010 which led to the Tribunal ordering that he pay fines totalling $13,500. 17 It is also unclear what the Practitioner's wife was alluding to when she said that the Practitioner's local practising certificate 'was not renewed pending the SAT decision'. As we understand it, the Practitioner's local (Page 7)
practising certificate was not withheld pending the outcome of the findings in Giudice. 18 We accept that the Practitioner has found this whole matter to be stressful and difficult. Indeed, we would be surprised if this were not the case. However, it must be said that the situation that the Practitioner finds himself in is a direct consequence of his own conduct. 19 The Tribunal considers that a reprimand is certainly appropriate and we do not consider that there are special circumstances in this case that, pursuant to s 439(d) of the LP Act, warrant a private reprimand. The Tribunal's conclusion is that the Practitioner should be publicly reprimanded. 20 However, a reprimand alone would not adequately reflect the seriousness of the finding against the Practitioner. We consider that his misconduct also warrants a fine and we accept the Committee's submission that the amount of $8,000 is appropriate. This will demonstrate the high standard of care expected of a practitioner by the profession and by members of the public when drafting court or indeed any other documents on behalf of a client.
Costs 21 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, then it is not unusual for the affected person to be ordered to contribute to the costs of the proceedings incurred by the vocational regulatory body. This is despite the general position set out in s 87(1) of the State Administrative Tribunal Act 2004 (WA); see Legal Practitioners Complaints Committee and Benari [2005] WASAT 213 (S) at [25]. Vocational regulatory bodies 'perform a function which promotes the public interest, and usually with limited resources' and unless that body has some capacity to recover some or all of its costs, this may provide a disincentive to bringing disciplinary action or properly and thoroughly presenting allegations against a practitioner; Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) at [30]. 22 The Committee in this case was unsuccessful in maintaining some of the allegations against the Practitioner and we consider that this ought to be reflected in any order for payment of the Committee's costs. However, it should be said that, from a perusal of the invoices submitted by the Committee, a significant part of those costs were incurred in connection (Page 8)
with the particular allegation against the Practitioner which ultimately led to the Tribunal's finding of unsatisfactory professional conduct. 23 The Practitioner contends that no costs should be awarded against him and instead that he should be awarded costs in respect of his defence of the allegations made against him by the Committee. However, the Tribunal's position is that, while the Practitioner should not have to bear the costs of the part of the proceedings which were not successfully maintained, unless it can be demonstrated that an application made by a vocational regulatory body lacked any reasonable basis, costs will not ordinarily be awarded against that body simply because the application was not successful; Motor Vehicle Industry Board and Dawson [2006] WASAT 8 at [46] [47]. The Committee was in this case partially successful and there has been no suggestion that the other allegations which the Committee raised against the Practitioner lacked any reasonable basis. The Tribunal therefore declines to make any order for costs in favour of the Practitioner against the Committee. 24 The Tribunal considers that the amount claimed by the Committee, being half of the costs which the Committee incurred, is reasonable and that there should be an order that the Practitioner pays $9,450.00 towards the Committee's costs.
Orders 1. In relation to the finding that the practitioner Peter George Giudice is guilty of unsatisfactory professional conduct contrary to the Legal Profession Act 2008 (WA) when he caused to be prepared under his supervision and 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 and thus failed 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: (Page 9)
2. The practitioner is to pay part of the Legal Profession Complaints Committee's costs fixed at $9,450.00, to be paid within three months of the date of these orders. |