| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and in de BRAEKT [2012] WASAT 58 (S) MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) MS H LESLIE (SENIOR SESSIONAL MEMBER)
MS K KEMP (SESSIONAL MEMBER)
HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 27 MARCH 2012 SUPPLEMENTARY
DECISION : 25 MAY 2012 FILE NO/S : VR 201 of 2010 BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE Applicant
AND
MEGAN MAREE in de BRAEKT
Respondent
Catchwords: Vocational regulation - Legal practitioners - Professional misconduct - Penalty - Practitioner knowingly misled the Magistrates Court - Practitioner was consistently discourteous and offensive to a Magistrate during a hearing - Practitioner sent emails to a police office that were offensive and discourteous -
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Practitioner sent an email to a police officer that was offensive, discourteous and threatening - Practitioner behaved in a discourteous and abusive manner to a security supervisor at Central Law Courts building - Report on findings to Supreme Court (full bench) with a recommendation that name of practitioner be removed from Roll of Practitioners - Interim suspension from practice pending determination of Supreme Court (full bench) - Costs Legislation: Legal Profession Act 2008 (WA), s 28, s 28(2), s 434, s 438, s 439, s 440, s 441
State Administrative Tribunal Act 2004 (WA), s 60(2), s 87(1), s 87(2) Result: Report on Tribunal's findings made and transmitted to Supreme Court (full bench) with recommendation that the name of the practitioner be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008 (WA)
Suspension of practitioner's practising certificate pending the determination of the Supreme Court (full bench) with effect from seven days after publication of this decision
The practitioner is to pay the Legal Profession Complaints Committee's costs in terms of disbursements in the amount of $51,291 within four weeks of publication of this decision Category: B
Representation: Counsel:
Applicant : Mr S Vandongen SC with Ms PE Le Miere
Respondent : Self-represented
Solicitors:
Applicant : Law Complaints Officer
Respondent : Self-represented
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Case(s) referred to in decision(s):
In Re Davis (1947) 75 CLR 409
J&P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)
Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56
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 in de Braekt [2011] WASAT 1
Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASATִ125 (S)
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S); (2005) 39 SR (WA) 47
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Re Maraj (a Legal Practitioner) (1995) 15 WAR 12
The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145
The Council of the Queensland Law Society Inc v Wright [2001] QCA 58
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decisions 1 The Tribunal has found that Ms Megan Maree in de Braekt, a legal practitioner, is guilty of professional misconduct by: (a) knowingly misleading the Magistrates Court on 4 June 2009 and 6 July 2009 by stating to the Court that she had never received disclosure of a colour digiboard from the police when such disclosure had been made to her; (b) being persistently discourteous and offensive to Magistrate Woods during a hearing in the Magistrates Court on 4 June 2009; (c) sending emails to Detective Constable Andrew Broadley between 16 and 29 June 2009 which were offensive and discourteous; (d) sending an email to Detective Inspector Paul La Spina on 30 June 2009 which was offensive, discourteous and threatening; and (e) behaving in a discourteous and abusive manner to Mr Rajandran Kanapathy, a security supervisor located at the Central Law Courts building, on 16 January 2009 while visiting the Central Law Courts in the course of carrying out her legal practice. 2 The Tribunal required the parties to file submissions in relation to penalty and costs, and directed, subject to any further order, that these remaining issues are to be determined entirely on the documents. 3 The Tribunal determined that the appropriate professional disciplinary consequence of Ms in de Braekt's professional misconduct in the circumstances of this case is to make and transmit a report on the finding to the Supreme Court (full bench) with a recommendation that Ms in de Braekt's name be removed from the Roll of Practitioners. The Tribunal also determined that Ms in de Braekt's practising certificate should be suspended pending the determination of the Supreme Court (full bench). Finally, the Tribunal ordered Ms in de Braekt to pay costs in terms of the disbursements incurred by the Legal Profession Complaints Committee in the proceeding in the amount of $51,291 within four weeks. (Page 5)
Introduction 4 On 27 March 2012, following a hearing over seven days, the Tribunal found that Ms Megan Maree in de Braekt, a legal practitioner, is guilty of professional misconduct pursuant to s 438(1) of the Legal Profession Act 2008 (WA) (LP Act) see Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (earlier reasons). In particular, the Tribunal found that Ms in de Braekt engaged in professional misconduct by: (a) knowingly misleading the Magistrates Court on 4 June 2009 and 6 July 2009 by stating to the Court that she had never received disclosure of a colour digiboard from the police when such disclosure had been made to her; (b) being persistently discourteous and offensive to MagistrateִWoods during a hearing in the Magistrates Court on 4 June 2009; (c) sending emails to Detective Constable Andrew Broadley between 16 and 29 June 2009 which were offensive and discourteous; (d) sending an email to Detective Inspector Paul La Spina on 30 June 2009 which was offensive, discourteous and threatening; and (e) behaving in a discourteous and abusive manner to Mr Rajandran Kanapathy, a security supervisor located at the Central Law Courts building, on 16 January 2009 while visiting the Central Law Courts in the course of carrying out her legal practice. 5 The Tribunal required the parties to file submissions in relation to penalty and costs, and directed, subject to any further order, that these remaining issues are to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The Legal Profession Complaints Committee (Committee) was required to file and serve its submissions by 16 April 2012, Ms in de Braekt was required to file and serve her submissions by 7 May 2012, and the Committee was required to file and serve any submissions in reply by 14 May 2012. (Page 6)
6 In its submissions filed on 16 April 2012, the Committee sought the following orders: 1) An order that a report be transmitted to the Supreme Court (full bench) pursuant to s 438(2)(a) of the LP Act with a recommendation that Ms in de Braekt be struck off the Roll of Practitioners. 2) An order that Ms in de Braekt is suspended forthwith from practice until the determination of the Supreme Court (full bench). 3) An order for costs pursuant to s 87(2) of the SAT Act for counsel's fees and other disbursements incurred in the proceedings in the amount of $51,291. 7 On 10 April 2012, Ms in de Braekt applied for an extension of the date by which she was required to file and serve her submissions until 24 June 2012, essentially on the grounds that she does not have the same resources as the Committee and that she has to prepare her 'submissions for SAT in addition to, that is on top of, my usual work'. On 10 April 2012, Judge Parry refused to extend time because: • three weeks is a substantial period of time for your submissions, and you will have the benefit of the [Committee's] submissions; • three weeks is the same length of time provided to the [Committee]; • there is a significant public interest in the prompt finalisation of the proceeding given that the proceeding was commenced on 19 October 2010, almost one and a half years ago; and • the Tribunal's findings. 8 On 7 May 2012, that is, the day by which she was required to file and serve her submissions, Ms in de Braekt again applied for an extension of the date by which she was required to file her submissions by 'at least two weeks' or, if that request were refused 'at least … until the end of this week, or at the very least until the close of business tomorrow'. Ms in de Braekt sought this extension because she had been in a jury trial in the District Court at Perth for the previous two weeks and because her grandmother, for whom she cares, had been hospitalised. In light of Ms in de Braekt's grandmother's hospitalisation, Judge Parry extended the date by which Ms in de Braekt was required to file and serve her submissions by one week to 14 May 2012, and also extended the date by (Page 7)
which the Committee was required to file and serve any submissions in reply to 21 May 2012. 9 Ms in de Braekt did not file any submissions by 14 May 2012. On 16 May 2012, the Tribunal sent Ms in de Braekt a letter by email advising her that 'unless you file and serve your submissions in relation to penalty and costs by 4 pm on Monday 21 May 2012, the Tribunal will proceed to consider and determine the issues of penalty and costs, without your submissions, next week'. 10 Ms in de Braekt did not file any submissions by 21 May 2012 or subsequently.
Legal framework and principles 11 Section 438(2) 438(4) of the LP Act states as follows: (2) If, after it has completed a hearing in relation to a referral under this Part in respect of an Australian legal practitioner, the State Administrative Tribunal is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may (3) If the State Administrative Tribunal transmits a report in respect of a legal practitioner to the Supreme Court (full bench) under subsection (2)(a), the Tribunal may, pending the determination of the Supreme Court (full bench), make the following orders (4) Where appropriate, a report forwarded under subsection (2)(a) may include either or both of the following (Page 8)
12 The 'local roll' referred to in s 438(4)(b) of the LP Act is the 'roll of persons admitted to the legal profession under [the LP] Act', commonly known as the Roll of Practitioners, which the Supreme Court is required to maintain under s 28 of the LP Act. 13 Section 439 of the LP Act specifies the orders that the Tribunal may make following a finding that a legal practitioner is guilty of unsatisfactory professional conduct or professional misconduct, under s 438(2)(b) of the LP Act, requiring official implementation in this jurisdiction, including suspension of the practitioner's practising certificate, imposition of conditions on the practitioner's practising certificate, and reprimand of the practitioner. Section 440 of the LP Act specifies orders that the Tribunal may make following a finding that a legal practitioner is guilty of unsatisfactory professional conduct or professional misconduct, pursuant to s 438(2)(b), requiring official implementation in another jurisdiction. Section 441 of the LP Act specifies the orders that the Tribunal may make following a finding that a legal practitioner is guilty of unsatisfactory professional conduct or professional misconduct, under s 438(2)(b), requiring compliance by the practitioner, including the payment of a fine not exceeding $25,000 and counselling or medical treatment. 14 In Re Maraj (a Legal Practitioner) (1995) 15 WAR 12 (Maraj), Malcolm CJ, with whom Kennedy and Franklyn JJ agreed, said at 25: … The object of disciplinary proceedings is the protection of the public and the maintenance of proper standards in the legal profession, rather than punishment. It is clear from … the authorities which have been repeatedly followed in this Court that when the question is whether a practitioner should be struck off the roll [, …] the only question is whether the practitioner is a fit and proper person to remain a member of the legal profession. [Citations omitted] 15 In Maraj, Malcolm CJ also said, at 24, that the object of disciplinary proceedings extends to 'the protection of … the reputation of the profession'. 16 In Legal Practitioners Complaints Committee v Pepe [2009] WASC 39, Murray and Beech JJ said the following at [10] [12]: 10 … the purpose of the maintenance of proper standards in the legal profession for the protection of the public may require this court to consider matters, particularly the seriousness of the offending behaviour, which go beyond what might strictly be required to secure the outcome that the practitioner is appropriately punished (Page 9)
and would be unlikely to offend in the same manner again. Not every instance of unprofessional or illegal conduct will require the extreme penalty of striking off, or even suspension from practice, but there will be cases where the seriousness of the conduct demands such a disposition because it demonstrates unfitness for practice: Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279, 298. 11 In the final analysis, however, the question remains that with which this discussion of the applicable principles started easy to state, but not always so easy to apply. As it was put by the High Court in A Solicitor v Law Society(NSW) [2004] HCA 1; (2004) 216 CLR 253 at 265 [15]: Where an order for removal from the Roll is contemplated, the ultimate issue is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner of the Supreme Court upon whose roll the practitioner's name presently appears. It is plain that under the statute, the judgment of the Full Bench upon that issue is to be made as at the time when the court is called upon to exercise its disciplinary powers. 12 Where the choice presented is, as in this case, effectively between suspension and striking off, useful guidance can be obtained from the judgment of Thomas JA, McMurdo P and White J agreeing, in Barristers' Board v Darveniza [2000] QCA 253; (2000) 12 A Crim R 438 at 446 447ִ[38]: Striking off is of course reserved for the very serious cases where the character and conduct of the practitioner is seen to be inconsistent with the privileges of further practice. Suspension is a less serious result, firstly because a limited period is specified and secondly because the right to resume practice is then preserved without any further onus upon the practitioner to prove that he or she is now a fit and proper person to practice. The proper use of suspension is, in my opinion, for those cases in which a legal practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner. (InRe A Practitioner (1984) 36 SASR 590 at 593 per King CJ.)
Appropriate disciplinary consequence of Tribunal's findings of professional misconduct 17 In our view, the Tribunal's findings of Ms in de Braekt's professional misconduct in the earlier reasons demonstrate that she is not a fit and (Page 10)
proper person to remain a legal practitioner. Her character and conduct as disclosed in the findings of professional misconduct is inconsistent with the privileges of further practice. Moreover, in our view, nothing short of removal of Ms in de Braekt from legal practice is sufficient to protect the public, the maintenance of proper standards in the legal profession, and the reputation of the legal profession. Ultimately, however, the determination of whether Ms in de Braekt is shown not to be a fit and proper person to be a legal practitioner is a matter for the Supreme Court (full bench) under s 434 of the LP Act. 18 The Tribunal has arrived at the conclusion that Ms in de Braekt is shown by the Tribunal's findings of professional misconduct in the earlier reasons not to be a fit and proper person to be a legal practitioner for the following two reasons. 19 Firstly, the seriousness of the finding that Ms in de Braekt knowingly and intentionally misled the Magistrates Court on 4 June 2009 and on 6 July 2009. Knowingly misleading the Court involved dishonesty. As Ipp J held in Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 (Kyle) at [6]: A practitioner who knowingly misleads a court will do so dishonestly. Therein lies the unprofessional conduct. 20 As Martin CJ, with whom Simmonds and Blaxell JJ agreed, said in Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119 at [8]: … honesty and integrity are essential prerequisites to the right to practise law and the conduct most likely to result in striking-off of the Roll is that which undermines the trustworthiness of the practitioner or which suggests a lack of integrity, so that the practitioner cannot be trusted to deal fairly within the system within which he or she practises. 21 Similarly, Basten JA, with whom Mason P and Santow JA agreed, said in the New South Wales Court of Appeal in The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 at [58]: … willingness to engage in deceptive or dishonest behaviour will generally be a matter of central relevance. Such a characteristic may be revealed by conduct in the practice of law or in conduct unrelated to the practice of law. Whatever the context of the conduct, the elements of character thus revealed is likely to be relevant although if based on conduct in the practice of law, that context will usually give rise to heightened concern. (Page 11)
22 Furthermore, Ms in de Braekt's conduct involved a serious breach of 'the confidence that every court rightly and necessarily puts in all counsel who appear before it' (to quote Parker J, with whom Ipp and Steytler JJ agreed, in Kyle at [66]). As the Court of Appeal observed in Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 (Vogt) at [61], the finding that a legal practitioner knowingly misled a court 'goes to the very heart of a practitioner's duty as an officer of the court and therefore to the proper administration of justice'. In Kyle at [61], the Court adopted the following statement from the decision of the Queensland Court of Appeal (McMurdo P, with whom Davies JA and Helman J agreed) in The Council of the Queensland Law Society Inc v Wright [2001] QCA 58 (Wright) at [67], made in the case of a solicitor who had intentionally misled a court in an affidavit resisting a summary judgment application: A practitioner's duty to the court arises out of the practitioner's special relationship with the court; it overrides the duties owned by a practitioner to clients or others (citation omitted). The lawyer's duty to the court includes candour, honesty and fairness. The appellant abused her role as an officer of the court in relying on material she knew to be false and in deliberately and recklessly misleading the court in an attempt to further the interests of her clients and family. Her conduct was made more serious by its repetition. The effective administration of the justice system and public confidence in it substantially depends on the honesty and reliability of practitioners' submissions to the court. This duty of candour and fairness is quintessential to the lawyer's role as officer of the court; the court and the public expect and rely upon it, no matter how new or inexperienced the practitioner. Breaches such as this 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. 23 However, as the Tribunal recognised in Legal Profession Complaints Committee and Gandini [2011] WASAT 86 (S) (Gandini) at [12], referring to Vogt: … while a departure from the duty of honesty to the Court must attract a substantial penalty, such misconduct does not compel a removal from the Roll. 24 As the Tribunal also observed in Gandini at [22], in reference to other cases in which practitioners have been or have not been struck off for having intentionally misled a court: … the circumstances of each case differ and reference to this case law may be unhelpful. What one does derive from these cases is an uncompromising and justifiably severe approach to any conduct involving intentionally misleading a court, to be mitigated only by extenuating circumstances of varying degrees. (Page 12)
25 Ms in de Braekt knowingly and intentionally misled the Magistrates Court in her professional practice. In doing so, she acted dishonestly and abused the necessary trust and confidence that courts and tribunals place in legal practitioners appearing before them in the effective administration of justice. Her conduct, therefore, undermined the effective administration of the justice system and public confidence in it. Furthermore, as in Wright, '[Ms in de Braekt's] conduct was made more serious by its repetition', misleading the court on both 4 June 2009 and 6 July 2009. Significantly, also, as the Committee submitted, there are no extenuating circumstances in this case that can be relied on to mitigate the very serious nature of the practitioner's conduct. 26 We, therefore, agree with the Committee's contention that, in the circumstances of this case, the finding that Ms in de Braekt misled the Magistrates Court warrants a conclusion that she is not a fit and proper person to remain a legal practitioner. 27 The second reason for the Tribunal's conclusion in this case is that, while the other four findings of unprofessional conduct would not individually warrant the striking off of the practitioner, collectively, the Tribunal's findings in relation to those grounds demonstrate a character and course of conduct on the part of the practitioner which is inconsistent with the privileges of practice as a member of the legal profession. It is to be recalled that the practitioner: • was persistently discourteous and offensive to a judicial officer during a hearing, making 'persistent interruptions and repetitive demands on a total of five occasions', adopting a 'belligerent tone' and not offering any apology (earlier reasons at [111]), and making 'an entirely unfounded allegation of actual bias against [the] judicial officer' (earlier reasons at [120]); • sent a series of six emails over approximately two weeks to a police officer, in the course of her legal practice, that were 'grossly offensive and discourteous in their tone and content' (earlier reasons at [139]); • sent an email to a senior police officer 'the tone and content of [which] … was significantly discourteous and offensive and … the final paragraph [of which] was threatening' (earlier reasons at [149]); and (Page 13)
• carried out an 'extraordinary display of discourtesy and abusive conduct to a member of the court security staff' (earlier reasons at [193]). 28 Legal practice in general, and advocacy in courts and tribunals in particular, involves great privileges and equally great responsibilities. As Dixon J observed in In Re Davis(1947) 75 CLR 409 at 420: The duties and privileges of advocacy are such that, for their proper exercise and effective performance, counsel must command the personal confidence, not only of lay and professional clients, but of other members of the Bar and of judges. 29 By the particular instances of professional misconduct which have been found, the practitioner has demonstrated a character and course of conduct that is discourteous, offensive or abusive to other participants in the justice system. Her conduct towards a judicial officer compromised the confidence necessarily placed by judicial officers in legal practitioners which is essential to the proper administration of justice. Her conduct, in the course of her legal practice, towards police officers 'compromise[d] the maintenance of the relationship between legal practitioners and the police, to the detriment of not just the good standing of the legal profession, but also the proper functioning of the criminal justice system' (earlier reasons at [139]) as 'the maintenance of a civil and constructive relationship between legal practitioners and police officers is essential to the proper functioning of the criminal justice system' (earlier reasons at [138]). Her conduct, in the course of her legal practice, towards a court security supervisor 'compromised not only the good standing of the legal profession, but also the important relationship between the legal profession and security staff in courts and tribunals' (earlier reasons at [193]). 30 Furthermore, the practitioner's conduct, being the conduct of a lawyer while engaged in legal practice, seriously undermined the reputation of the legal profession. 31 In our view, therefore, the other four findings of professional misconduct collectively demonstrate a character and course of conduct on the part of the practitioner which is inconsistent with the privileges of legal practice and shows that she is not a fit and proper person to be a legal practitioner. (Page 14)
32 Our conclusion that the practitioner is not a fit and proper person to remain a legal practitioner based on the foregoing two reasons is reinforced by three other factors discussed below. 33 However, in our view, for the two reasons set out earlier, the findings of professional misconduct made by the Tribunal are sufficient, by themselves, to warrant a conclusion that the practitioner is not a fit and proper person to practice and, consequently, for the Tribunal to make and transmit a report on the findings of professional misconduct to the Supreme Court (full bench) with a recommendation that the name of the practitioner be removed from the Roll of Practitioners. 34 The first factor which supports our conclusion that the practitioner is not a fit and proper person to remain in legal practice, based on the foregoing two reasons, is that, in the earlier reasons, the Tribunal made adverse findings about the practitioner's truthfulness in the evidence she gave. At [92], the Tribunal observed that it had 'significant doubts as to her truthfulness and credibility' in light of findings in relation to aspects of Ms in de Braekt's evidence. At [109], the Tribunal found: That Ms in de Braekt's evidence that Magistrate Woods indicated with her head that Ms in de Braekt was to take a seat at the back of the courtroom when, on four occasions, she told her to 'have a seat', was not truthful and, indeed, appeared to have been made up on the spot. 35 At [118], the Tribunal did not accept Ms in de Braekt's evidence that three of the four reasons she gave to the Tribunal for having made the application for Magistrate Woods to disqualify herself 'were factors in her mind when she made the application for her Honour to disqualify herself' (at [118]). 36 At [146], the Tribunal: [did] not accept the veracity of Ms in de Braekt's evidence that, when she wrote the email to Detective Inspector La Spina[,] she was interrupted and wrote the email in two sessions, with the last line written after the interruption and thinking it was being sent to Detective Constable Broadley … 37 At [178], the Tribunal did not accept 'the veracity of Ms in de Braekt's evidence' in relation to having attended the Central Law Courts building at the time of the incident in relation to ground (e) in order to collect muffins, rather than in the course of her professional practice. The Tribunal said at [178]: (Page 15)
It is clear to the Tribunal that Ms in de Braekt's evidence about the muffins is, as Mr Vandongen submitted, something that was 'dreamt up recently, in order to assist in a technical argument that she was not, at the time of being in the Central Law Courts, in the course of carrying out her legal practice' and has 'all the hallmarks of recent invention' (T:43.243.4; 23.02.12). 38 After setting out Ms in de Braekt's explanation as to why it may have appeared that she stopped and read the Court lists when, in fact, she was on her way to pick up muffins, the Tribunal said at [180]: Having heard Ms in de Braekt give this evidence, it appeared to the Tribunal that it was, like her evidence about the muffins, also 'dreamt up' on the spot, and was unconvincing. 39 As the Committee submitted, the way in which the proceedings were conducted by both the Committee and the practitioner, including the crossexamination of the practitioner, was such that it would have been obvious to the practitioner that she was at risk of the Tribunal finding that she was a dishonest witness and that such a finding could be used in considering her fitness to practice. In particular, given that the Committee alleged that Ms in de Braekt knowingly or recklessly misled the Magistrates Court, and the Tribunal found that she knowingly and intentionally misled the Court, the fact that she has given false evidence before the Tribunal is relevant to an assessment of whether she is a fit and proper person to remain in legal practice. 40 The second factor which supports our conclusion that the practitioner is not a fit and proper person to remain in legal practice, based on the two reasons referred to earlier, is, as the Supreme Court (full bench) held in Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 at [35]: … a practitioner's failure to understand the impropriety of his [or her] conduct, may be a factor of very great importance in determining whether he or she is permitted to remain on the Roll. 41 Throughout the proceedings, Ms in de Braekt has demonstrated an almost complete lack of insight and understanding as to the impropriety of her conduct. Even in relation to ground (b) (being persistently discourteous and offensive to Magistrate Woods), ground (c) (sending emails to Detective Constable Broadley which were offensive and discourteous) and ground (d) (sending an email to Detective Inspector La Spina which was offensive, discourteous and threatening), in respect of which there could be no question as to the facts, which were clear from the recording of the hearing, supplemented by the transcript, and (Page 16)
Ms in de Braekt's emails to the police officers, Ms in de Braekt contended throughout that there was no impropriety in her conduct, other than a late and qualified statement in her final submissions on 23 February 2012 that 'now that I have realised that perhaps it was discourteous for me to continue to say, ''Excuse me, could I please finish my submissions"', to her Honour (T:85.6, 23.02.12). However, even then, Ms in de Braekt continued to demonstrate a lack of insight into her conduct, because she said, in relation to making an apology, 'although I shouldn't have had to do that'. She also still maintained that she 'should have been allowed' to make further submissions to her Honour. She then offered to make an apology as follows: But anyway, in any event, I shouldn't have continued to say that. I realise that now and I'm happy to apologise. In fact, I will.
(T:85.685.7, 23.02.12) 42 However, this offer of an apology was made for the first time at the conclusion of the hearing, more than two and a half years after the conduct in question. 43 In relation to ground (a) (misleading the Magistrates Court), the practitioner demonstrated a profound lack of insight as to the impropriety of her conduct by giving false evidence to the Tribunal in relation to a number of matters. 44 In relation to ground (e) (behaving in a discourteous and abusive manner to a security supervisor at the Central Law Courts), even though she ultimately conceded that 'I'm pretty sure that I did call him a prick' (see [171] of the earlier reasons), and even though Mr Kevin Morgan, a witness called by Ms in de Braekt, said that she called the security supervisor 'a prick' at least three times (see [164]), Ms in de Braekt did not demonstrate the slightest appreciation that for a lawyer to call a court security supervisor 'a prick' is not acceptable behaviour. 45 The third factor which supports our conclusion that the practitioner is not a fit and proper person to remain in legal practice, based on the two reasons referred to earlier, is that the decision and observations made by the Tribunal in other professional disciplinary proceedings brought by the Committee against the practitioner show that her discourteous, offensive or abusive character and course of conduct to other participants in the justice system demonstrated by the findings in relation to grounds (b) (e) in this case is not restricted to those incidents: see Legal Profession Complaints Committee and in de Braekt [2011] WASAT 1 (in de Braekt). That decision also shows that, in August 2007, one and (Page 17)
a half to two years prior to Ms in de Braekt's conduct the subject of grounds (b) (e) in these proceedings, a Master of the Supreme Court was critical of Ms in de Braekt's allegations of impropriety against a legal practitioner, including allegations of misleading the Court, and cautioned her 'to be extremely careful in relation to your dealings with other solicitors': in de Braekt at [63] and [139]. 46 In in de Braekt, the Tribunal found the practitioner guilty of unsatisfactory professional conduct by making allegations of impropriety and unsatisfactory conduct against Mr Gough, the solicitor representing the other party in litigation 'when she lacked any reasonable foundation for those allegations': at [3]. Moreover, the tone and content of Ms in de Braekt's correspondence with Mr Gough was offensive and discourteous. For example, an email sent by Ms in de Braekt to Mr Gough, which the Tribunal set out in in de Braekt at [24], and which, in its tone, approach and expression, is strikingly similar to her emails to the police officers which are the subject of grounds (c) and (d) in these proceedings (see earlier reasons at [121] [132] and [144]), stated as follows: Your email incorrectly represents the content of my email, as my client believes you well know. If my email is as clear as you claim, then point to specific parts which say exactly what you claim. Is this the sort of response you give in Court, when Judges ask you to take them to the precise words? Courts won't accept you saying 'It's clear enough, I don't have to take Your Honour directly to it'. You have made an allegation, so now you have to justify it Mr Gough. Your failure to answer my question is proof of your claim having no substance - because you are again incorrectly representing information. Do you do this in other matters? If not, why are you doing it in this matter? If you also incorrectly represent information in other matters, doesn't anyone point this out to you and the Court? If you also incorrectly represent information in other matters, and other Lawyers point out your incorrect representations to the Courts and yourself, then why do you keep doing it? (Page 18)
47 In another email, set out by the Tribunal in in de Braekt at [26], Ms in de Braekt made what the Tribunal described as 'rather extraordinary requests' (at [26]) or 'demands' (at [132]) for Mr Gough and all other lawyers at Minter Ellison who had involvement in the matter to provide 'a handwriting sample and your fingerprint impressions to forensic experts engaged by my client' in a process 'likely to be video recorded'. At [132], the Tribunal found that 'the clear implication [from these 'extraordinary' demands] is that Mr Gough and Minter Ellison were acting misleadingly in denying any involvement [in sending an envelope to Ms in de Braekt's client]'. 48 At [139] in in de Braekt, the Tribunal said the following: In these reasons we have set out at some length the communications between Ms in de Braekt and Mr Gough, and relevant portions of affidavits made or prepared by Ms in de Braekt. Those documents reveal a troubling tendency in this litigation for Ms in de Braekt to write in intemperate and offensive terms in relation to the opposing solicitor and the opposing client. As we have found, a number of those communications went beyond the bounds of acceptable professional conduct. In the proceedings before the Master, he cautioned Ms in de Braekt 'to be extremely careful in relation to your dealings with other solicitors'. That is advice with which we agree. The interests of clients and the proper administration of the law are served by practitioners extending to each other proper professional courtesy. Resort to personal abuse leads to a loss of the objectivity that is necessary for proper legal representation, and results in distraction from the real issues in the client's dispute. This case is a good example of that proposition.
Interim suspension 49 Section 438(3) of the LP Act authorises the Tribunal, where it transmits a report in respect of a legal practitioner to the Supreme Court (full bench) under s 438(2)(a), to order that the practitioner's practising certificate be suspended pending the determination of the Court. As we are of the view, in light of the findings of professional misconduct, that the practitioner is not a fit and proper person to remain a legal practitioner, and in order to protect the public, the maintenance of proper standards in the legal profession, and the preservation of the reputation of the profession, it is appropriate to impose an interim suspension. Although the Committee sought an immediate interim suspension, in order to enable the parties to be advised of this decision and clients to obtain alternative representation, the interim suspension should commence seven days after the publication of these reasons. (Page 19)
Costs 50 The Committee sought an order for the payment by the practitioner of counsel's fees and other disbursements incurred in the proceeding in the amount of $51,291. Senior counsel charged fees at a rate of $550 per hour or $5,000 per day (excluding GST) which he then discounted by 20%. The Committee did not seek a costs order in relation to its solicitor's fees. 51 Although s 87(1) of the SAT Act contemplates that, generally, parties bear their own costs in proceedings before the Tribunal, s 87(2) of the SAT Act confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party. The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in vocational disciplinary proceedings is that a successful application by a vocational regulatory body, such as the Committee, will usually result in an order for costs being made in favour of the vocational regulatory body: Medical Board of Western Australia and Roberman [2005] WASAT 81 (S); (2005) 39 SR (WA) 47 (Roberman) at [30] referred to with approval in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [35]. The policy basis behind this practice is that vocational regulatory bodies 'perform a function which promotes the public interest, and usually with limited resources' and '[t]he financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented': Roberman at [30]. 52 There is no reason why, in the circumstances of this case, the Tribunal should depart from its usual practice in relation to costs in vocational disciplinary proceedings. An order for costs in favour of the Committee should therefore be made. 53 In relation to the amount or quantum of costs, the Tribunal's usual practice is to determine the amount of work which was reasonable and necessary to properly prepare and present the case and then to apply, as a useful guide as to the maximum rates which might be allowed on a party/party basis, the relevant hourly or daily rate specified in the Legal Practitioners (State Administrative Tribunal) Determination 2010 (Determination): J&P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S) at [9] and Marvelle Investments Pty Ltd and (Page 20)
Argyle Holdings Pty Ltd [2010] WASATִ125 (S) at [35] [36] and [47] [48]. The Determination prescribes the maximum amounts which can be charged without a written agreement as to costs with a client under s 282 of the LP Act. The Legal Costs Committee has not prescribed a scale of costs for the Tribunal in respect of party/party costs, because the Legal Costs Committee has recognised that 'the overriding philosophy of the Tribunal, as expressed through its enabling legislation, is that parties appearing before the Tribunal are to bear their own costs of proceedings': Legal Practitioners (State Administrative Tribunal) Report 2010 (WA) para 3b. The Determination is, therefore, not binding in the present case, but rather, is to be used as a guide as to the maximum rates which might be allowed on a party/party basis. 54 The Committee presented a detailed schedule of disbursements and copies of accounts. The time incurred by senior counsel for the Committee was reasonable and necessary to properly prepare and present the case, which occupied seven hearing days, and the other disbursements incurred by the Committee are also reasonable. Owing to the 20% discount applied by senior counsel to his account, the daily rate actually charged to the Committee is $220 less than the maximum daily rate for senior counsel in the Determination, although the hourly fee is $22 more than the maximum hourly rate in the Determination. Assessed overall, counsel's fees sought by the Committee are reasonable and an order should be made for the payment by Ms in de Braekt of the Committee's costs in terms of disbursements in the amount sought.
Conclusion 55 The appropriate professional disciplinary consequence of Ms in de Braekt's professional misconduct in the circumstances of this case is to make and transmit a report on the findings to the Supreme Court (full bench) with a recommendation that Ms in de Braekt's name be removed from the Roll of Practitioners. The report is to comprise the earlier reasons and these reasons, and is to be transmitted with a copy of the exhibits and the transcript of the proceeding. 56 Ms in de Braekt's practising certificate is suspended pending the determination of the Supreme Court (full court), with effect from seven days after the publication of this decision. 57 Ms in de Braekt is to pay the Committee's costs of the proceeding in terms of disbursements in the amount of $51,291 within four weeks of the date of this decision. (Page 21)
Orders 58 The 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 court) on the Tribunal's finding that the practitioner, Ms Megan Maree in de Braekt, 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 practitioner 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 in Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 and Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S) and is to be transmitted with a copy of the exhibits and transcript of the proceeding. 2. Pursuant to s 438(3)(a) of the Legal Profession Act 2008 (WA), the respondent's local practising certificate is suspended from 1 June 2012 until the determination of the Supreme Court (full bench). 3. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the respondent must pay to the applicant its costs of the proceeding in terms of disbursements in the amount of $51,291 by 22 June 2012. |