LEGAL PROFESSION COMPLAINTS COMMITTEE and LOUREY - [2019] WASAT 41

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION:   LEGAL PROFESSION COMPLAINTS COMMITTEE and LOUREY [2019] WASAT 41
MEMBER:   JUDGE T SHARP, DEPUTY PRESIDENT
DR C PEARS, SENIOR SESSIONAL MEMBER
MR M HARFORD, SENIOR SESSIONAL MEMBER

HEARD:   12 AND 13 NOVEMBER 2018
DELIVERED          :   21 JUNE 2019
FILE NO/S:   VR 98 of 2018
BETWEEN:   LEGAL PROFESSION COMPLAINTS COMMITTEE
Applicant
AND
MICHAEL JOSEPH LOUREY
Respondent

Catchwords:

Legal practitioner - Application under s 438(1) of Legal Profession Act 2008 (WA) - Practitioner guilty of unsatisfactory professional conduct and professional misconduct - Failure to comply with Legal Profession Complaints Committee document summonses - Failure to comply with Legal Profession Complaints Committee information summonses - Failure to adhere to personal undertakings - Conduct Rules - Disciplinary proceedings

Legislation:

Legal Profession Act 2008 (WA), s 5(a), s 401, s 402, s 403, s 403(1), s 403(1)(b), s 404, s 404(a), s 414, s 421(2), s 428(1), s 438, s 438(1), s 438(2), s 439, s 441, s 442, s 520, s 532, s 532(3), s 532(3)(b), s 576(1), s 577, s 578, s 579, Pt 13
Legal Profession Conduct Rules 2010 (WA), r 4(2), r 6, r 6(1)(b), r 6(2)(b), r 6(2)(c), r 16(1), r 22, r 22(1), r 22(3), r 25, r 50
State Administrative Tribunal Act 2004 (WA), s 15(1)
Workers Compensation and Injury Management Act 1981 (WA), s 57A(3)(c), s 180, s 182F, s 182F(1)(b), s 264, s 265

Result:

Practitioner guilty of professional misconduct
Practitioner guilty of unsatisfactory professional misconduct

Category: B

Representation:

Counsel:

Applicant	:	Mr G Cobby SC
Respondent	:	Mr S Watters

Solicitors:

Applicant	:	In Person
Respondent	:	Nigams Legal Pty Ltd

Case(s) referred to in decision(s):

Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545
Dekker v Medical Board of Australia [2014] WASCA 216
Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Lander v Council of the Law Society of the Australian Capital Territory [2009] ATCSC 117
Legal Profession Complaints Committee v Detata [2012] WASCA 214
Legal Profession Complaints Committee v in de Braekt [2013] WASC 124
Legal Profession Complaints Committee v Lourey [2019] WASC 62
Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 4] [2014] WASC 282
Northern Territory v Mengel (1995) 185 CLR 307
Victorian Legal Commissioner v McDonald [2019] VSCA 18
Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279

REASONS FOR DECISION OF THE TRIBUNAL:

Application

This matter comes before the Tribunal by way of an application made by the applicant (Committee) on 8 June 2018 under s 428 of the Legal Profession Act 2008 (WA) (LP Act). In the application, the Committee seeks a finding from the Tribunal under s 438(1) of the LP Act that the respondent (Practitioner) has engaged in professional misconduct.
The grounds for the application, the alleged facts and the Committee's contentions are set out in a series of four annexures to the application (respectively, Annexure A, Annexure B, Annexure C and Annexure D). In Annexure A, there are four grounds, in Annexure B there are five grounds and in each of Annexures C and D there is one ground.
We will set out the contents of the Annexures in full later in these reasons.

Proceedings in the Tribunal

On 26 June 2018, the then President of the Tribunal made orders requiring the Practitioner to file a response to the application by 7 August 2018. His Honour also referred the matter for mediation.
On 10 August 2018, the parties sought and obtained an extension of time until 13 August 2018 for the Practitioner to respond to the application.
The Practitioner filed his response on that date.
The Practitioner's response in fact comprises 11 separate responses, one to each of the 11 grounds set out in the Committee's application. In each case, they are in effect a short denial of the ground in question, and each contains a reservation of the Practitioner's 'right to provide a supplementary or substituted response, to include, if necessary, a response to the [Committee's] statement of Facts and Contentions, particularly given the short time frame allowed to the Practitioner to file and serve a response, compared with the 9 months the [Committee] used to prepare, and lodge this complaint' (at para 6).
The mediation took place on 15 August 2018 and was terminated without achieving a resolution by a settlement between the parties.
At a further directions hearing on 27 August 2018, the Tribunal ordered that the Committee, by 18 September 2018 but extended until 19 September 2018, file its bundle of documents. The Practitioner was to file his bundle of documents by 9 October 2018 and the parties' witness statements were to be filed by 30 October 2018. The matter was listed for a final hearing to take place on 12 and 13 November 2018.
On 28 September 2018, the Practitioner filed an interim application with the Tribunal which was subsequently withdrawn. A second interim application was filed by the Practitioner on 15 October 2018. That was also withdrawn.
A further order was made by the Tribunal on 16 October 2018, extending the date by which the Practitioner had to file his bundle of documents to 30 October 2018. On 31 October 2018, that date was extended again, this time to 2 November 2018.
The Practitioner's bundle of documents was filed with the Tribunal on 7 November 2018.
Also on 7 November 2018, a further document entitled 'Amended Reply to the Application dated 8 June 2018' was filed, this document being dated 6 November 2018 (Practitioner's Amended Reply). Although this document was filed by Nigams Legal, it was in the name of and signed by the Practitioner.
At the final hearing of the matter on 12 and 13 November 2018, the bundle of documents filed by the Committee became Exhibit 1 and the bundle of documents filed by the Practitioner became Exhibit 2.
Neither party filed any witness statements and both the Committee and the Practitioner, through counsel, made oral submissions.

The allegations and grounds in detail

The Annexures to the Committee's application provide as follows. As we have already said, each of the Annexures contains a statement of facts and contentions and a statement of the grounds in each case for the allegations made by the Committee.
We do not understand that the factual allegations contained in the Annexures are in dispute and we make those findings of fact. The Committee's contentions which the Committee says arise from those facts and the grounds for the Committee's allegations are set out after the relevant facts.

Annexure A facts letter to WorkCover of 2 June 2016

At all relevant times, the Practitioner was:
(a)an Australian legal practitioner, within the meaning of s 5(a) of the LP Act; and
(b)a legal practitioner director of an incorporated legal practice, Chapmans Lawyers Pty Ltd and, from 14 September 2017, Eureka Services Pty Ltd (Practice), trading as Chapmans Barristers & Solicitors.
WorkCover WA (WorkCover) is and was at all material times the administrator and regulator of the workers' compensation scheme in Western Australia established under the Workers Compensation and Injury Management Act 1981 (WA) (WC Act).
In March 2016, a Mr S (Client S) lodged a claim under the WC Act (Client S Claim) with his employer, who subsequently forwarded the Client S Claim to its insurer, QBE Insurance (Australia) Ltd (QBE).
On around 1 April 2016, QBE issued a notice pursuant to s 57A(3)(c) of the WC Act to Client S (Form 3C Notice):
(a)advising that the Client S Claim had not included sufficient information to allow a determination of whether Client S's injury had been sustained in the course of Client S's employment;
(b)advising that a decision on whether or not to accept liability for the Client S Claim was not able to be made within the time allowed under the WC Act; and
(c)outlining the further information required by QBE to enable further consideration of the Client S Claim.
After receiving the Form 3C Notice, Client S engaged the Practice in respect of the Client S Claim.
A letter dated 16 May 2016 from the Practice to QBE (16 May letter) (Exhibit 1 page 5) included the following statement:
As you are aware our client has been attempted (sic) to resolve this matter directly with your office since lodging this claim in March 2016, a period of over two months. It is therefore apparent he has done everything possible to negotiate a suitable outcome of this dispute and given your ongoing refusal to accept liability, further negotiation and conferral is clearly futile. In these circumstances an urgent application to WorkCover will now be lodged.
On or around 20 May 2016 the Practitioner caused to be lodged with WorkCover on behalf of Client S a Form 100 Application for Conciliation dated 19 May 2016 (S's Application) in respect of the Client S Claim. S's Application was in the form prescribed under the WC Act which included, at Section D, provision for the supply of details of the attempts to resolve the dispute including the dates of any communication, the names of the people or parties involved and any action taken to resolve the dispute prior to lodging S's Application. The only information included in S's Application in relation to the attempts to resolve the dispute was a reference to (including a copy of) the 16 May letter.
In a letter to the Practice dated 26 May 2016, the Director, Conciliation Service, WorkCover (Director) stated, relevantly, as follows:
Section 182F(1)(b) of the [WC Act] provides that the Director cannot accept an Application for Conciliation unless the Director is satisfied that reasonable attempts have been made to resolve the dispute by negotiation. Section 182F(2) goes on to say that the onus is on the applicant to satisfy the Director in this regard.
The attempts to resolve the dispute cited on the Form 100 and the documents submitted in support of the application have been taken into consideration. I am not satisfied that reasonable attempts have been made to resolve the issue in dispute and therefore I am unable to accept the application."
By letter dated 2 June 2016 (2 June letter) (Exhibit 1 page 17) the Practitioner responded to the Director's letter of 26 May 2016 stating, relevantly, as follows:
Your suggestion that the requirements of s182F of the [WC Act] have not been met is not maintainable. As you are aware, or should be aware, that section requires conferral and negotiation between the parties. As pointed out in our letter to the insurer which was included in the application, [Client S] has been conferring with [QBE] since lodging his claim form on 12 March 2016 which is now almost three months ago.
In these circumstances for the Director to conclude that there has not been '... reasonable attempts ... to resolve the issue in dispute ...' is simply not maintainable and manifestly unfair to [Client S].
In these circumstances we urgently require the Director to review her decision and accept the application failing which we will take our client's instructions in relation to an application to the Supreme Court for prerogative relief.
The 2 June letter was copied to QBE and Client S.

Annexure A contentions letter to WorkCover of 2 June 2016

The Committee says that the Practitioner prepared the 2 June letter and caused it to be sent to the Director.
Alternatively, the Committee says that the Practitioner:
(a)caused or permitted the 2 June letter to be prepared and sent to the Director;
(b)by letter dated 28 February 2017 and statutory declaration made on 13 April 2017 has expressly accepted professional responsibility for the 2 June letter being prepared and sent to the Director; and
(c)despite being required by summons served on him by the Committee pursuant to s 520(1)(c) and (d) and 520(3) of the LP Act (the subject of ground 3 in Annexure A), has failed and refused to identify any other person involved in the composing of the wording for the 2 June letter.
The Committee alleges that the Practitioner's threat in the letter of 2 June of the possibility of an application to the Supreme Court for prerogative relief was in order to induce the Director to reverse her decision and to accept S's Application (First Threat).

Annexure A facts letter to WorkCover of 17 June 2016

By letter dated 7 June 2016 the Director wrote to the Practice in relation to the 2 June letter and, relevantly:
(a)confirmed that as Director she could not accept an application for conciliation unless satisfied that reasonable attempts had been made to resolve the dispute by negotiation and that S's Application did not provide any evidence to meet this requirement;
(b)noted that the documents presented with S's Application included the 16 May letter which asserted that Client S had attempted to resolve the matter directly with QBE since lodging the Client S Claim but that no evidence had been provided to support this assertion;
(c)noted that the documents presented with S's Application also included correspondence from QBE to Client S advising that insufficient medical evidence had been provided to enable a decision to be made regarding liability but that no information had been provided as to whether Client S had provided further information to QBE or whether any negotiation had occurred regarding the liability decision; and
(d)informed the Practice that it was open to Client S to lodge a fresh application that met the requirements of s 182F(1)(b) of the WC Act.
By letter dated 17 June 2016 (17 June letter) (Exhibit 1 page 22) the Practitioner responded to the Director's letter of 7 June 2016 stating, relevantly, that:
(a)Client S was 'extremely distressed' by the Director's decision;
(b)there was 'more than enough evidence' of Client S's attempts to resolve the dispute with QBE prior to S's Application being lodged;
(c)it followed that there was 'no reliable evidence' for the Director to maintain the decision in her letters of 2 and 7 (sic) June 2016;
(d)Client S 'has not ruled out the possibility of making a formal complaint against the Director personally as he is of the preliminary view that her conduct is with some malice and not based on the evidence or the law';
(e)'it appears to us also that any objective observer would see the correspondence of 2 and 7 (sic) June 2016 as pro-insurer and not balanced', and
(f)Client S was entitled to raise these concerns with regard to the Director's conduct without being penalised.
The 17 June letter was copied to QBE and Client S.

Annexure A contentions letter to WorkCover of 17 June 2016

The Committee says that the Practitioner prepared the 17 June letter and caused it to be sent to the Director.
Alternatively, the Committee says that the Practitioner:
(a)caused or permitted the 17 June letter to be prepared and sent to the Director;
(b)by letter dated 28 February 2017 and statutory declaration made on 13 April 2017 has expressly accepted professional responsibility for the 17 June letter being prepared and sent to the Director; and
(c)despite being required by summons served on him by the Committee pursuant to s 520(1)(c) and (d) and s 520(3) of the LP Act (the subject of ground 3 in Annexure A), has failed and refused to identify any other person involved in the composing of the wording for the 17 June letter.
In the 17 June letter, the Committee says that the Practitioner:
(a)alleged that the Director was or may have been actuated by malice (Malice Allegation) and biased in favour of QBE (Bias Allegation); and
(b)threatened the possibility of a 'formal complaint' against the Director personally in order to induce the Director to reverse her decision and to accept S's Application (Second Threat).

Annexure A facts letter to WorkCover of 29 June 2016

By letter dated 21 June 2016 (Exhibit 1 page 23) the Director wrote to the Practice in respect of the 17 June letter and, relevantly:
(a)reiterated that she was not satisfied that reasonable attempts had been made to resolve the dispute by negotiation as required under s 182F of the WC Act;
(b)requested that Client S be assured that the decision not to accept S's Application was made on the basis of the requirements set out in s 182F of the WC Act;
(c)reiterated her earlier advice that it was open to Client S to lodge a new application which contained evidence sufficient to meet the statutory requirements; and
(d)noted that the penultimate paragraph of the 17 June letter attributed motives to the Director which were untrue and unfounded, and that she considered such use of intemperate language as unacceptable conduct within the Conciliation Service and had referred the matter to the Committee for its consideration.
By letter also dated 21 June 2016 (Exhibit 1 pages 24 and 25), the Director made a complaint to the Committee about the Practitioner's conduct with respect to the 2 June letter and the 17 June letter (WorkCover Complaint).
By letter dated 22 June 2016 (Exhibit 1 pages 26 and 27), a senior legal officer from the Committee informed the Practitioner that the Director had complained to the Committee about the 2 June letter and the 17 June letter, and expressed concerns with regard to the content of the 17 June letter. The officer invited the Practitioner to consider mitigating his conduct by apologising to the Director and withdrawing the 17 June letter.
Following the Committee's invitations referred to in the previous paragraph, the Practitioner by letter dated 29 June 2016 to the Director (29 June letter) (Exhibit 1 page 29) wrote:
(1)in relation to the Director's statement in her letter of 21 June 2016 to the Practice that she considered the Practitioner had used 'intemperate language' in the 17 June letter to attribute particular 'motives' to the Director that were 'untrue and unfounded', requested that the Director particularise:
(a)the words she considered to be 'intemperate'; and
(b)the 'imputed (untrue and unfounded) motives that you say the language thereby attributed to you';
(2)stated that if the use of the term 'malice' offended her, it may well be that the Director had '(mis)interpreted that aspect of our letter in a personal sense, rather than in the intended legal sense that we used the word' referring to the decision in Northern Territory v Mengel (1995) 185 CLR 307; and
(3)stated that, as a public officer, the Director was 'not immune from the tort of nonfeasance in a public office' (sic) and Client S was entitled to raise this issue without sanction against him or his solicitors.
By letter to the Practitioner dated 1 July 2016, the Committee referred to the 29 June letter and again invited the Practitioner to apologise in regard to the contents of both the 17 June letter and the 29 June letter.
Despite that further invitation, the Practitioner did not apologise with respect to either the 17 June letter or the 29 June letter.

Annexure A contentions letter to WorkCover of 29 June 2016

The Committee says that the Practitioner prepared the 29 June letter and caused it to be sent to the Director.
Alternatively, the Committee says that the Practitioner:
(a)caused or permitted the 29 June letter to be prepared and sent to the Director;
(b)by letter dated 28 February 2017 and statutory declaration made on 13 April 2017 has expressly accepted professional responsibility for the 29 June letter being prepared and sent to the Director; and
(c)despite being required by summons served on him by the Committee pursuant to s 520(1)(c) and (d) and s 520(3) of the Act (the subject of ground 3 in Annexure A), has failed and refused to identify any other person involved in the composing of the wording for the 29 June letter.

The Committee says that there is no tort known as 'nonfeasance in a public office', and considers that the Practitioner intended to refer in the 29 June letter to the tort of misfeasance in public office.
The Committee says that by the 29 June letter, the Practitioner:
(a)expressly maintained the Malice Allegation;
(b)implicitly maintained the Bias Allegation; and
(c)threatened the possibility of a claim against the Director for the tort of misfeasance in public office in order to induce the Director to reverse her decision and to accept the Application (Third Threat).
The Committee submits that at all material times the Practitioner had no, or alternatively no reasonable, grounds:
(a)for making the First Threat;
(b)for making the Malice Allegation;
(c)for making the Bias Allegation;
(d)for making the Second Threat;
(e)for maintaining the Malice Allegation;
(f)for maintaining the Bias Allegation; or
(g)for making the Third Threat.
The Committee contends that at all material times the Practitioner knew there were no, or no reasonable, grounds, alternatively did not care whether or not there were reasonable grounds and was recklessly indifferent, or further alternatively was grossly careless as to whether or not there were reasonable grounds:
(a)for making the First Threat;
(b)for making the Malice Allegation;
(c)for making the Bias Allegation;
(d)for making the Second Threat;
(e)for maintaining the Malice Allegation;
(f)for maintaining the Bias Allegation; or
(g)for making the Third Threat.
Further and alternatively, the Committee considers that by:
(a)making the First Threat;
(b)further and alternatively, making the Malice Allegation;
(c)further and alternatively, making the Bias Allegation;
(d)further and alternatively, making the Second Threat;
(e)further and alternatively, maintaining the Malice Allegation;
(f)further and alternatively, maintaining the Bias Allegation; or
(g)further and alternatively, making the Third Threat
the Practitioner attempted to improperly pressure the Director to reverse her decision and to accept S's Application.
The Committee considers that the conduct of the Practitioner referred to above fell short, by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence such that he is not a fit and proper person to engage in legal practice within the meaning of s 403(1)(b) of the LP Act, which constitutes professional misconduct within the meaning of s 403 and s 438 of the LP Act.
Further and alternatively, r 6(1)(b) of the Legal Profession Conduct Rules 2010 (Conduct Rules) requires a legal practitioner to be courteous in all dealings with clients, other practitioners and other persons involved in a matter where the practitioner acts for a client.
The content and tone of each of the 2 June letter, the 17 June letter and the 29 June letter was, in the Committee's view, discourteous and intemperate and in breach of the Practitioner's obligation of professional courtesy under Conduct Rule 6(1)(b).

Annexure A facts First Information Summons, First Document Summons and First Undertaking

By letter dated 4 January 2017 (Exhibit 1 pages 33-35), the Committee requested that the Practitioner provide submissions to the Committee in relation to the conduct the subject of the WorkCover Complaint by 8 February 2017.
By summons dated 4 January 2017 (Exhibit 1 pages 36-37) and served on the Practitioner by email on or about that date pursuant to s 520(1)(c) and (d) and s 520(3) of the LP Act (FirstInformation Summons), the Law Complaints Officer (who is and was at all material times an investigator within the meaning of s 520 of the LP Act) required the Practitioner to provide to the Committee the following information to be verified by way of statutory declaration at or before 4 pm on 8 February 2017, in relation to each of the 2 June letter, the 17 June letter and the 29 June letter:
(a)whether the Practitioner composed the wording for the letter and, if so, on what date he did so and on what date/s he made any revisions to the wording of the letter;
(b)whether any other person was involved in the composing of the wording for the letter and, if so, to what extent they were involved in the composing of the wording of the letter, on what date/s they were involved in the composing of the wording of the letter and what part or parts of the letter they were involved in the composing of;
(c)whether the Practitioner had any discussions with Client S about the content of the letter either prior to or after the letter was signed and sent to WorkCover and, if so, the nature of those discussions; and
(d)on what date the Practitioner sent the letter, or caused the letter to be sent to WorkCover.
By further summons also dated 4 January 2017 (Exhibit 1 pages 38 39) and served on the Practitioner by email on or about that date pursuant to s 520(1)(a) and (d) of the LP Act (FirstDocument Summons), the Law Complaints Officer required the Practitioner to produce to the Committee at or before 4 pm on 8 February 2017, the following documents:
(1)the Practice's entire original file as at 1 August 2016 and all documents arising by reason of the Practice acting for Client S in respect of the Client S Claim up until 1 August 2016 (including but not limited to, relevantly (by paragraph 1(d) of the First Document Summons), all time sheets/pre-billing reports, invoices and records relating to work done and the payment of invoices); and
(2)in respect of each of the 2 June letter, the 17 June letter and the 29 June letter:
(a)all draft versions of the letter (in word format) including track changes and/or comments if applicable;
(b)a complete audit trail from the computer system used to create the letter showing the history or log of all activity performed in respect of the letter, including but not limited to when the letter was first created and by whom and the date any changes were made to the letter and by whom; and
(c)all metadata and other data available on the Practice's computer system in relation to the electronic copy of each draft version of the letter and the final version of the letter.
Following a letter from the Practitioner to the Committee dated 8 February 2017 (Exhibit 1 page 40), the Law Complaints Officer varied the time for compliance with each summons to 4 pm on 15 February 2017.
As a result of a further letter from the Practitioner to the Committee dated 15 February 2017 (Exhibit 1 page 45), the Law Complaints Officer further varied the time for compliance with each summons to 4 pm on 28 February 2017.
The Practitioner failed to comply with either the First Information Summons or the First Document Summons by 4 pm on 28 February 2017.
By letter to the Committee dated 28 February 2017 (Exhibit 1 page 52) the Practitioner asked for 'an extension in relation to the submissions only to close of business on 6 March 2017'.
By further letter to the Committee dated 28 February 2017 (Exhibit 1 pages 55 and 56):
(a)with respect to the First Document Summons, the Practitioner informed the Committee that he would not provide all of the Practice's entire original file as required by the summons but would provide his entire original file up to 29 June 2016, and that he did not know what an 'audit trail' is or what 'meta data' is for the purposes of paragraph 2 of the summons but that he would provide copies of the 'relevant' documents by 3 March 2017; and
(b)with respect to the First Information Summons, the Practitioner said:
… the information sought in that Summons is irrelevant to the complaint.
As you are no doubt aware, s 584 of the Legal Profession Act 2008 in these circumstances deems me responsible from a professional point of view for all the work done on my files by employees under my supervision. In light of that provision, I do not understand how, with respect to clauses 1a) to d) of this Summons, those clauses are relevant (given that I am ultimately responsible for the contents of any letters on my files that leave this office) or cannot otherwise be determined from the original file itself. In these circumstances, at this stage, I believe s 520(3) of the Act only requires a statutory declaration to be provided in relation to information that is relevant to a complaint. In my respectful view none of the matters set out in that Summons are relevant.
By letter dated 1 March 2017 (Exhibit 1 pages 57 and 58) the Committee responded to the Practitioner and informed him, relevantly, that the First Information Summons was issued in relation to the specific items of correspondence which were the substance of the WorkCover Complaint, and that the investigation of whether the Practitioner's conduct in preparing and sending the correspondence amounts to unsatisfactory professional conduct or professional misconduct 'requires an assessment of the circumstances in which you composed the wording for each item of correspondence, whether you received any assistance in preparing the correspondence or supervised any other legal practitioner in the preparation of the correspondence and the instructions received from your client in relation to the preparation of the correspondence. The information requested in the [First] Information Summons is directed to a consideration of these issues and is reasonably related to the proper subject matter of the Committee's investigation'.
By letter dated 3 March 2017 (Exhibit 1 pages 59 and 60) (received by the Committee on 7 March 2017) the Practitioner, relevantly, advised that:
(a)copies of 'the relevant documents' referred to in the First Document Summons would be provided to the Committee by 4 pm on 7 March 2017;
(b)in response to the First Information Summons, he would either provide the Committee with a statutory declaration in response or an application to set the First Information Summons aside by 4 pm on 10 March 2017; and
(c)confirmed that his submissions pursuant to s 414 of the LP Act would be provided by 4 pm on 7 March 2017.
The Practitioner did not provide any documents in response to, or otherwise purport to comply with, the First Document Summons by 4 pm or otherwise on 7 March 2017.
Further, the Practitioner did not provide any submissions to the Committee, by 4 pm or otherwise, on 7 March 2017.
By letter to the Committee dated 8 March 2017 the Practitioner:
(a)provided to the Committee what he described as a bundle of 'copied relevant documents' from the Practice's file in response to the First Document Summons, but did not provide the original client file as required by the First Document Summons; and
(b)advised that his submissions would be provided to the Committee by 4 pm on 13 March 2017.
The Practitioner did not provide any statutory declaration in response to, or otherwise purport to comply with, the First Information Summons, nor did he apply to have the First Information Summons set aside by 4 pm or otherwise on 10 March 2017.
The Practitioner did not provide any submissions to the Committee by 4 pm or otherwise on 13 March 2017.
By letter dated 14 March 2017 (Exhibit 1 page 62) sent by the Practitioner 'by way of update' to the Committee, the Practitioner:
(a)said that his office administrator was still arranging for the Practice's IT contractor to attend the office and that 'we hope' to have the contractor in the office 'some time this week';
(b)alleged that he had been unable to 'establish the process' for setting aside the Information Summons and he would provide the statutory declaration 'as requested' but it would include his 'objections on relevance ... where appropriate'; and
(c)stated that his submissions would be provided to the Committee by no later than 4 pm on 20 March 2017 and stated 'and I undertake to meet that deadline' (First Undertaking).
The Practitioner did not provide any submissions to the Committee by 4 pm or otherwise, on 20 March 2017 in accordance with the First Undertaking.
By letter dated 20 March 2017 (Exhibit 1 page 65) (received by the Committee on 27 March 2017) the Practitioner informed the Committee, in effect, that he did not have the documents referred to in paragraph 2 of the First Document Summons.
By letter dated 12 April 2017 (Exhibit 1 pages 71 and 72) the Practitioner:
(1)asserted that he had previously advised the Committee that he would provide a response to the First Information Summons by statutory declaration on two conditions, being:
(a)receiving confirmation that there is no process to apply to set aside the summons as far as compelling him to provide (so-called) irrelevant information is concerned; and
(b)that he be permitted to include his objections on the grounds of relevance in that statutory declaration;
(2)stated that his statutory declaration would be provided to the Committee by 4 pm on 13 April 2017;
(3)asserted that he would be completing the statutory declaration in response to improper pressure applied by the Committee; and
(4)asserted that he had written to the Committee by letter dated 29 March 2017 addressing the content of a letter from the Committee dated 29 March 2017.
At the time it received the Practitioner's letter of 12 April 2017 the Committee had not received a letter from the Practitioner dated 29 March 2017 on this matter, and the Committee requested by email of 12 April 2017 that he provide it.
The Practitioner did not respond to the Committee's email of 12 April 2017.
By letter dated 29 March 2017 (Exhibit 1 pages 69 and 70) (received by the Committee by post on 18 April 2017) the Practitioner, relevantly:
(a)asserted that he had complied with the First Document Summons because, relevantly, the only power the Committee could lawfully enforce by way of a summons is the power to compel 'relevant documents';
(b)stated that he had indicated he would, unless a process to set aside could be identified, complete a statutory declaration in response to the First Information Summons, but would include in the statutory declaration his objections on the grounds of relevance, as required;
(c)stated that his submissions would be lodged with the Committee by 4 pm on 10 April 2016 (which date had already passed by the time the Committee received this letter).
By letter dated 13 April 2017 (received by the Committee on 18 April 2017) the Practitioner provided:
(1)a statutory declaration of the Practitioner dated 13 April 2017 (Exhibit 1 pages 77-79) (Statutory Declaration) which the Practitioner said was made in response to the First Information Summons; and
(2)his submissions pursuant to s 414 of the LP Act dated 12 April 2017 (Exhibit 1 pages 80-86).
In the Statutory Declaration the Practitioner deposed, relevantly, as follows:
(1)He did not believe that 'most of the matters set out in the [First Information] Summons are relevant to the [WorkCover Complaint]' and he said he was responding to the First Information Summons 'even though I believe much of it to be irrelevant to the [WorkCover Complaint], as a result of pressure placed on me by the [Committee] to provide a statutory declaration or otherwise face further professional pressure on the basis that I have to this point, failed to respond to the [First Information] Summons fully and accurately and in a timely manner'.
(2)In his response to paragraph 1(a) of the First Information Summons the Practitioner says 'I object to providing the information requested on the ground of relevance. I can confirm however that I am responsible from a professional point of view for all correspondence that is prepared and sent on my files'.
(3)In his response to paragraph 1(b) of the First Information Summons the Practitioner says 'I object to providing the information requested on the ground of relevance. I can confirm however that I am responsible from a professional point of view for all correspondence that is prepared and sent on my files'.
(4)In his response to paragraph 1(c) of the First Information Summons the Practitioner says 'I object to providing the information requested on the ground of relevance. I can confirm however that I am responsible from a professional point of view for the conduct of my files. I have also previously provided the [Committee] with copies of all relevant documents from our file in relation to [Client S], including copies of any file notes of discussions we had with [Client S] in relation to WorkCover's failure to accept his WorkCover application'.
(5)In his response to paragraph 1(d) of the First Information Summons the Practitioner says 'I object to providing the information requested on the ground of relevance. I can confirm however that I am responsible from a professional point of view for all correspondence that is prepared and sent on my files. I can only assume the three letters were posted in accordance with our normal office procedure, which means they should have been despatched on the date that is on the letter, or the day following'.

Annexure A - contentions First Information Summons, First Document Summons and First Undertaking

The Committee says that the Practitioner failed and refused to produce the documents required by the First Document Summons in that he failed and refused to produce, relevantly:
(a)the Practice's original client file;
(b)copies of all documents from that file or arising by reason of the Practice acting for Client S in respect of the Client S Claim up until 1 August 2016; and
(c)any time sheets/pre-billing reports, invoices and records relating to work done and the payment of invoices as required by paragraph 1(d) of the First Document Summons.
Further and in any event, the Committee says:
(a)the documents which the Practitioner was required by the First Document Summons to produce were relevant to the Committee's investigation into the Complaint; and
(b)the Practitioner knew those documents were relevant to the Committee's investigation.
The Committee alleges that the Practitioner failed and refused to produce the documents required by the First Document Summons for the purpose, or a substantial purpose, of seeking to frustrate or hinder the Committee's investigation into the Complaint.
The Committee says that the Practitioner failed and refused to attempt to provide the information required by the First Information Summons, either properly or adequately or at all.
Further and in any event, the Committee says:
(1)the information which the Practitioner was required by the First Information Summons to provide was relevant to the Committee's investigation into the WorkCover Complaint; and
(2)the Practitioner knew that information was relevant to the Committee's investigation.
The Committee considers that the Practitioner failed and refused to provide the information required by the First Information Summons for the purpose, or a substantial purpose, of seeking to frustrate or hinder the Committee's investigation into the WorkCover Complaint.
The Committee says that the Practitioner's conduct in failing since 28 February 2017, without reasonable excuse, to respond properly and adequately or at all to the First Information Summons, in contravention of s 520(5) and/or s 532(3) of the LP Act fell short, consistently and by a substantial degree of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence such that he is not a fit and proper person to engage in legal practice within the meaning of s 403(1)(b) of the LP Act and is professional misconduct within the meaning of s 403, s 404(a) and s 438 of the LP Act.

Further and alternatively, the Committee says, the Practitioner's conduct in failing since 28 February 2017, without reasonable excuse, to properly and adequately respond to the First Document Summons, in contravention of s 520(5) and/or s 532(3) of the LP Act fell short, consistently and by a substantial degree of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence such that he is not a fit and proper person to engage in legal practice within the meaning of s 403(1)(b) of the LP Act and is professional misconduct within the meaning of s 403, s 404(a) and s 438 of the LP Act.
Further and alternatively, the Committee says, in breach of the First Undertaking given by the Practitioner to the Committee, and in circumstances where:
(1)the Committee had by letter dated 4 January 2017 requested the Practitioner's submissions be provided by 8 February 2017;
(2)the Practitioner had failed to provide any submissions by 8 February 2017 and had, by letter dated 28 February 2017, asked for an extension of time to provide his submissions to 6 March 2017;
(3)the Practitioner had failed to provide any submissions by 6 March 2017 and had, by letter dated 8 March 2017, advised that his submissions would be provided by 13 March 2017; and
(4)the Practitioner had failed to provide any submissions by 13 March 2017,
the Practitioner, without reasonable excuse, failed to provide any submissions in this matter to the Committee by 20 March 2017.
The Committee considers that the Practitioner's conduct in the preceding paragraph by which he failed, without reasonable excuse, to comply with the First Undertaking given to the Committee fell short by a substantial degree of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence such that he is not a fit and proper person to engage in legal practice within the meaning of s 403(1)(b) of the LP Act. In the Committee's view, this conduct constitutes professional misconduct within the meaning of s 403 and s 438 of the LP Act.

Annexure A grounds for Committee's allegation of professional misconduct

Ground 1

The Committee alleges that the Practitioner, between on or about 2 June 2016 and on or about 29 June 2016 in the course of acting for Client S with respect to the Client S Claim under the WC Act engaged in professional misconduct within the meaning of s 403 and s 438 of the LP Act, in that his conduct fell short consistently and by a substantial degree of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence such that he is not a fit and proper person to engage in legal practice within the meaning of s 403(1)(b) of the LP Act by preparing and causing to be sent, alternatively by causing or permitting to be prepared and sent and for which the Practitioner has expressly accepted professional responsibility, the 2 June letter, the 17 June letter and the 29 June letter to the Director, the contents of which were intemperate, threatening, intimidating and/or discourteous, and by which the Practitioner attempted to interfere with the due administration of justice, in that:
(a)by the 2 June letter the Practitioner threatened the possibility of an application to the Supreme Court for prerogative relief in respect of the Director's decision to refuse to accept S's Application in order to induce the Director to reverse her decision and to accept S's Application, when he knew that there were no, or no reasonable, grounds to make that threat, alternatively was recklessly indifferent, or further alternatively, grossly careless, as to whether or not there were reasonable grounds to make that threat;
(b)further and alternatively, by the 17 June letter, the Practitioner made serious allegations concerning the Director's conduct in refusing to accept S's Application, namely that the Director was or may have been actuated by malice and biased in favour of the insurer, when the Practitioner knew that there were no, or no reasonable, grounds to make those allegations, alternatively was recklessly indifferent, or further alternatively, grossly careless, as to whether or not there were reasonable grounds to make those allegations;
(c)further and alternatively, by the 17 June letter, the Practitioner threatened the possibility of a 'formal complaint' against the Director personally in respect of the Director's decision to refuse to accept S's Application in order to induce the Director to reverse her decision and to accept S's Application, when he knew that there were no, or no reasonable, grounds to take that action, alternatively was recklessly indifferent, or further alternatively, grossly careless, as to whether or not there were reasonable grounds to take that action;
(d)further and alternatively, after being contacted by the Committee on or about 21 and 22 June 2016 and being invited to apologise to the Director and to withdraw the 17 June letter, by the 29 June letter the Practitioner exacerbated his conduct in this Ground 1 at paras (a) to (c) by failing and refusing to apologise or to withdraw the 17 June letter and by instead maintaining the allegation that the Director was or may have been actuated by malice and by threatening the Director with the possibility of a claim for misfeasance in public office in order to induce the Director to reverse her decision and to accept S's Application, when he knew that there were no, or no reasonable, grounds to maintain that allegation or to make such claim, alternatively was recklessly indifferent, or further alternatively, grossly careless, as to whether or not there were reasonable grounds to maintain that allegation or to make such claim;
(e)further and alternatively, by the 2 June letter and/or the 17 June letter and the 29 June letter, the Practitioner attempted to improperly pressure the Director to reverse her decision and to accept S's Application;
(f)further and alternatively, despite receiving a further invitation from the Committee on or about 1 July 2016 to apologise to the Director for his 17 June 2016 letter and the 29 June letter, the Practitioner further exacerbated his conduct in this Ground 1 at paras (a) to (e) by continuing to fail and refuse to apologise.

Ground 2

The Committee says that the Practitioner, from 28 February 2017 and continuing during the investigation by the Committee of the WorkCover Complaint, engaged in professional misconduct within the meaning of s 403, s 404(a) and s 438 of the LP Act, in that his conduct fell short consistently and by a substantial degree of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence such that he is not a fit and proper person to engage in legal practice within the meaning of s 403(1)(b) of the LP Act, further and alternatively was contrary to s 520(5) of the LP Act, further and alternatively was a contravention of his obligation under s 532(3)(b) of the LP Act by, without reasonable excuse, and for the purpose or a substantial purpose of seeking to frustrate or hinder the Committee's investigation into the WorkCover Complaint, failing to comply with the First Document Summons returnable at 4 pm on 8, then varied to 15 and then 28, February 2017, in that:
(1)the Practitioner failed to comply with the First Document Summons at all by 4pm on 28 February 2017;
(2)further and alternatively, by letter to the Committee of 28 February 2017 the Practitioner expressly refused to produce:
(a)all of the documents requested in the First Document Summons; and
(b)documents created after 29 June 2016 despite the fact that paragraph 1 of the First Document Summons required the Practitioner to produce documents in existence up to 1 August 2016;
(3)further and alternatively, under cover of a letter of 8 March 2017 the Practitioner produced to the Committee a bundle of copy documents, whereas the First Document Summons required the Practitioner to produce (amongst other things) the entire original file as at 1 August 2016;
(4)further and alternatively, the copy documents which the Practitioner produced to the Committee did not include the following which were in the Practitioner's possession:
(a)all additional documents on the file created between 29 June 2016 and 1 August 2016; or
(b)any of the documents referred to in subparagraph 1(d) of the First Document Summons, namely all time sheets/pre-billing reports, invoices and records relating to work done and the payment of invoices;
(5)further and alternatively, the Practitioner thereafter continued to fail and refuse to comply with the First Document Summons.

Ground 3

The Committee says that the Practitioner, from 28 February 2017 and continuing during the investigation by the Committee of the WorkCover Complaint, engaged in professional misconduct within the meaning of s 403, s 404(a) and s 438 of the LP Act, in that his conduct fell short consistently and by a substantial degree of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence such that he is not a fit and proper person to engage in legal practice within the meaning of s 403(1)(b) of the LP Act, further and alternatively was contrary to s 520(5) of the LP Act, further and alternatively was a contravention of his obligation under s 532(3)(b) of the LP Act by, without reasonable excuse, and for the purpose or a substantial purpose of seeking to frustrate or hinder the Committee's investigation into the WorkCover Complaint, failing to comply with the First Information Summons returnable at 4pm on 8, then varied to 15 and then 28 February 2017, in that:
(a)the Practitioner failed to comply with the First Information Summons at all by 4pm on 28 February 2017;
(b)further and alternatively, under cover of a letter dated 13 April 2017 the Practitioner provided to the Committee a statutory declaration of the Practitioner made on 13 April 2017, by which the Practitioner purported to object to providing any of the information required by the First Information Summons and failed to provide that information save only to admit (which did not constitute compliance or purported compliance with the First Information Summons) that he (the Practitioner) was 'responsible from a professional point of view for all correspondence that is prepared and sent on my files', when the Practitioner had no or no reasonable basis for objecting to providing the information required by the First Information Summons; and
(c)further and alternatively, the Practitioner thereafter continued to fail and refuse to comply with the First Information Summons at all.

Ground 4

The Committee says that the Practitioner, between 21 March 2017 and 18 April 2017 engaged in professional misconduct within the meaning of s 403 and s 438 of the LP Act during the investigation by the Committee of the WorkCover Complaint in that his conduct fell short by a substantial degree of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence such that he is not a fit and proper person to engage in legal practice within the meaning of s 403(1)(b) of the LP Act by, without reasonable excuse, failing to comply with the First Undertaking he gave to the Committee in a letter dated 14 March 2017 to provide his submissions in relation to the conduct the subject of the WorkCover Complaint on or before 20 March 2017 in circumstances where those submissions had been initially requested by the Committee to be provided by 8 February 2017 and, notwithstanding the First Undertaking, were not provided by the Practitioner until 18 April 2017.

Annexure B facts letter to RiskCover of 22 March 2016

At all relevant times, the Practitioner was:
(a)an Australian legal practitioner, within the meaning of s 5(a) of the Act; and
(b)a legal practitioner director of the Practice.
WorkCover is and was at all material times the administrator and regulator of the workers' compensation scheme in Western Australia established under the WC Act.
Mr F (Client F) lodged a claim for workers' compensation under the WC Act in respect of an acute psychological injury (Client F Claim) which Client F alleges he suffered during the course of his employment with Sir Charles Gardiner Hospital in 2012 (Injury).
Client F engaged the Practice in around April 2015 in respect of the Client F Claim.
In around August 2015 a dispute arose in relation to the date on which the weekly payments of compensation payable in respect of the Injury had commenced.
In March 2016 the employer's insurer, Insurance Commission of Western Australia (RiskCover), informed the Practitioner that it would only pay Client F's compensation payments from the date of the first medical certificate (Medical Certificate) that had been provided by Client F and would not backdate payments from the alleged date of incapacity.
By letter dated 22 March 2016 (22 March letter) (Exhibit 1 page 130) the Practitioner responded to RiskCover, relevantly:
(1)stating 'It never ceases to amaze us (sic) how many occasions your claims officers operate in complete ignorance of the legislation';
(2)stating that a RiskCover officer appeared to be saying that any periods of incapacity resulting from the Injury prior to the date of the [Medical Certificate] was to be claimed as 'sick leave' and not under the WC Act;
(3)stating 'A very well-known provision of the [WC Act] which all your claims officers should know, is to the contrary. Further, we have pointed this out to your claims officers on more than one occasion in the past'; and
(4)asking 'one final time' for immediate payment of compensation to Client F for all periods of incapacity resulting from the Injury, failing which an application would be lodged with WorkCover 'as a matter of priority'.

Annexure B contentions letter to RiskCover of 22 March 2016

The Committee says that the Practitioner prepared the 22 March letter and caused it to be sent to RiskCover.
Alternatively, the Committee says that the Practitioner:
(1)caused or permitted the 22 March letter to be prepared and sent to RiskCover;
(2)by letter dated 28 February 2017 and statutory declaration made on 13 April 2017 has expressly accepted professional responsibility for the 22 March letter being prepared and sent to RiskCover; and
(3)despite being required by summons served on him by the Committee pursuant to s 520(1)(c) and (d) and s 520(3) of the LP Act (the subject of ground 4 in Annexure B), has failed and refused to identify any other person involved in the composing of the wording of the 22 March letter.

Annexure B facts letter to Civic Legal of 11 May 2016

On around 14 April 2016 the Practice lodged a Form 100 - Application for Conciliation (F's Application) with WorkCover on behalf of Client F, seeking weekly compensation payments. F's Application was accepted by WorkCover for conciliation and a conciliation conference was held on 11 May 2016, attended by Mr R, a legal practitioner employed at Civic Legal on behalf of RiskCover and the Practitioner on behalf of Client F. The parties asked WorkCover to delay issuing a certificate of outcome for the conference pending further settlement discussions.
By letter dated 4 May 2016 (Exhibit 1 page 131) Mr R wrote to Client F's treating general practitioner, Dr H, seeking medical information relating to Client F. The letter enclosed an Authority to Release Medical Records form signed by Client F which authorised the release of Client F's medical information to RiskCover and its legal representatives.
On or about 9 May 2016 Client F informed the Practitioner by telephone that Dr H had received a request for the medical information from Civic Legal.
By letter dated 11 May 2016 to Civic Legal (11 May letter) (Exhibit 1 page 137) the Practitioner, relevantly:
(1)stated that '[o]ur client instructs us that your office has written to his treating general practitioner fishing around for information that is irrelevant to his workers' compensation claim or that your client is otherwise not entitled to';
(2)asked for a copy of anything sent to Dr H; and
(3)stated that RiskCover's rights to documents with respect to Client F's condition were limited to anything relevant to the Client F Claim.

Annexure B contentions letter to Civic Legal of 11 May 2016

The Committee says that the Practitioner prepared the 11 May letter and caused it to be sent to Civic Legal.
Alternatively, the Committee says that the Practitioner:
(1)caused or permitted the 11 May letter to be prepared and sent to Civic Legal;
(2)by letter dated 28 February 2017 and statutory declaration made on 13 April 2017 has expressly accepted professional responsibility for the 11 May letter being prepared and sent to Civic Legal; and
(3)despite being required by summons served on him by the Committee pursuant to s 520(1)(c) and (d) and s 520(3) of the Act (the subject of ground 4 in Annexure B), has failed and refused to identify any other person involved in the composing of the wording for the 11 May letter.

Annexure B facts letter to Civic Legal of 12 May 2016

By letter dated 11 May 2016 Mr R responded to the Practitioner and enclosed copies of the relevant documents that had been provided by Dr H to Mr R on 10 May 2016.
By letter dated 12 May 2016 (12 May letter) (Exhibit 1 page 140) the Practitioner responded to Mr R's letter of 11 May 2016 containing, relevantly, the following statements:
(1)Your response is disingenuous. Your office knows full well that we sought a copy of anything you sent to Dr [H] not what you received back from him (sic);
(2)Your office also knows full well that we did not make a request pursuant to s 180 of the [WC Act] by way of our letter of 11 May 2016; and
(3)We will take further instructions from our client in relation to your conduct and your response including whether or not he wishes to bring a complaint to the [Committee].

Annexure B - contentions letter to Civic Legal of 12 May 2016

The Committee says that the Practitioner prepared the 12 May letter and caused it to be sent to Civic Legal.
Alternatively, the Committee says that the Practitioner:
(1)caused or permitted the 12 May letter to be prepared and sent to Civic Legal;
(2)by letter dated 28 February 2017 and statutory declaration made on 13 April 2017 has expressly accepted professional responsibility for the 12 May letter being prepared and sent to Civic Legal; and
(3)despite being required by summons served on him by the Committee pursuant to s 520(1)(c) and (d) and s 520(3) of the Act (the subject of Ground 4 in Annexure B), has failed and refused to identify any other person involved in the composing of the wording for the 12 May letter.
The 12 May letter was copied to Client F.
By the 12 May letter the Committee says that the Practitioner threatened the possibility of a complaint against Mr R to the Committee (Fourth Threat).

Annexure B facts letter to Civic Legal of 7 September 2016

On 12 August 2016 the Practitioner and Mr R attended a directions hearing in relation to the Client F Claim (Directions Hearing), at which, relevantly, orders were made listing the matter for arbitration on 9 September 2016.
By letter dated 12 August 2016 to Civic Legal (Exhibit 1 pages 143 to 144) the Practitioner:
(1)indicated that Client F would not accept RiskCover's lump sum settlement offer which had been made in July 2016 to settle Client F's Claim in total in respect of the Injury;
(2)proposed that RiskCover pay Client F's weekly compensation payments for the initial period of incapacity in dispute or, alternatively, reinstate Client F's relevant annual leave entitlements; and
(3)reiterated that his view was that RiskCover's 'policy issues' have no relevance to [Client F's] statutory entitlements, including the question of his capacity for work in the period in question'.
By facsimile dated 31 August 2016 to Mr R (Exhibit 1 page 145) the Practitioner, relevantly:
(1)noted that he was waiting for a response to his letter of 12 August 2016 and that '[a]s foreshadowed the resolution of this matter is straightforward, and in accordance with the legislation. If your client had followed the legislation back in July 2012 then this issue would never have arisen';
(2)sought confirmation that the matter could be resolved in accordance with the terms of his letter of 12 August 2016 and as discussed at the Directions Hearing; and
(3)indicated that if RiskCover allowed the matter to proceed it would 'not only succeed very quickly and [RiskCover] will pay even more costs, but it will be a complete disregard by your client of the need to ensure the services of WorkCover are properly taken into account'.
By facsimile dated 31 August 2016 to the Practitioner, Mr R:
(1)advised that he had received instructions that day that RiskCover would concede Client F's Application;
(2)sought a Notice of Discontinuance for signature and confirmation that the arbitration hearing listed for 9 September 2016 would be vacated; and
(3)suggested the basis on which the Practitioner could claim legal costs on behalf of Client F,
and stated that he awaited the Practitioner's submissions with regard to legal costs and a Notice of Discontinuance (for signature).
The Practitioner did not respond to the 31 August 2016 facsimile.
By facsimile dated 7 September 2016 to the Practitioner, Mr R:
(1)sought a response to his facsimile of 31 August 2016 and to two urgent telephone messages left for the Practitioner to which the Practitioner had not responded; and
(2)asked for an appropriate Notice of Discontinuance to be provided or confirmation that the Practitioner had notified WorkCover of the resolution of the matter in order that the arbitration hearing listed on 9 September 2016 could be vacated.
By letter dated 7 September 2016 to Civic Legal (7 September letter) (Exhibit 1 page 148) the Practitioner, relevantly:
(1)advised that the correct process was for the parties to agree appropriate consent orders rather than filing a Notice of Discontinuance;
(2)proposed consent orders (Consent Orders) which included orders that Client F's costs be fixed in the sum of $11,500 'to be paid by [the relevant claims officer, PR] pursuant to s 264 and/or s 265 of the Act';
(3)stated in relation to the costs:
'[t]here is no need for you to summarise what you understand to be the law in relation to legal costs for WorkCover applications.
We also remind you that at the time this application was lodged, we put your client on notice that should our client succeed, he would seek orders against the RiskCover claims officer personally and/or their solicitors in terms of costs, given the provisions of s 264 and/or s 265 of the [WC] Act';
(4)stated that if the matter could not be resolved by appropriate consent orders prior to the hearing, the Practitioner intended to proceed with F's Application and move immediately for appropriate orders consistent with the above proposals.

Annexure B contentions letter to Civic Legal of 7 September 2016

The Committee says that the Practitioner prepared the 7 September letter and caused it to be sent to Mr R.
Alternatively, the Committee says that the Practitioner:
(1)caused or permitted the 7 September letter to be prepared and sent to Mr R;
(2)by letter dated 28 February 2017 and statutory declaration made on 13 April 2017 has expressly accepted professional responsibility for the 7 September letter being prepared and sent to Mr R; and
(3)despite being required by summons served on him by the Committee pursuant to s 520(1)(c) and (d) and s 520(3) of the LP Act (the subject of ground 4 in Annexure B), has failed and refused to identify any other person involved in the composing of the wording for the 7 September letter.
The Committee says that by the 7 September letter the Practitioner threatened to seek personal costs orders against PR and/or Mr R pursuant to s 264 and/or s 265 of the WC Act (Fifth Threat).

Annexure B facts letter to Civic Legal of 6 October 2016

By letter dated 8 September 2016 Mr P, a principal of Civic Legal, responded to the 7 September letter agreeing to the Consent Orders subject to the removal of the reference to claims officer PR and on the basis that the legal costs would be paid by RiskCover in accordance with its usual protocol.
In a separate matter, by letter dated 23 September 2016 to Civic Legal (23 September letter) (Exhibit 1 page 150) the Practitioner:
(1)referred to the orders made by WorkCover on 28 July 2015 in application number C25147 (Orders) which, relevantly, had included the payment of weekly compensation payments to the Practice's client M (Client M), the reinstatement of Client M's leave entitlements and the payment of legal costs to the Practice of $4,850 (M legal costs);
(2)stated that Client M had instructed him that her leave entitlements had not been reinstated as required by the Orders and asked that this be attended to forthwith;
(3)noted in relation to the outstanding Orders that '[w]e find this most remarkable if it is the case as your client is the approved Government insurer and to not comply with an order of WorkCover over a year later, is simply improper'; and
(4)asked for a cheque for the immediate payment of the M legal costs.
By letter dated 27 September 2016 RiskCover sent a cheque to the Practice in payment of the M legal costs and confirmed that it had issued instructions to have Client M's leave entitlements reinstated as required by the Orders.
Mr R made a complaint to the Committee about the Practitioner's conduct (R's Complaint).
By letter dated 30 September 2016 (Exhibit 1 pages 153 and 154) a legal officer from the Committee wrote to the Practitioner with respect to matters the subject of R's Complaint including the content of the 7 September letter.
By letter dated 6 October 2016 to Civic Legal (6 October letter) (Exhibit 1 page 155) the Practitioner stated, relevantly:
Given you have recently made a complaint to the [Committee] regarding certain matters as we understand it in relation to [PR] at RiskCover, can you please advise why either our client or our office should not refer [Mr P's] conduct also to the [Committee] given the failure of your client to comply with the orders issued last year.
The 6 October letter was copied to Client M.

Annexure B contentions letter to Civic Legal of 6 October 2016

The Committee says that the Practitioner prepared the 6 October letter and caused it to be sent to Civic Legal.
Alternatively, the Committee says that the Practitioner:
(1)caused or permitted the 6 October letter to be prepared and sent to Civic Legal;
(2)by letter dated 28 February 2017 and statutory declaration made on 13 April 2017 has expressly accepted professional responsibility for the 6 October letter being prepared and sent to Civic Legal; and
(3)despite being required by summons served on him by the Committee pursuant to s 520(1)(c) and (d) and s 520(3) of the LP Act (the subject of ground 4 of this Annexure B), has failed and refused to identify any other person involved in the composing of the wording for the 6 October letter.
By the 6 October letter, the Committee says that the Practitioner threatened to report Mr P to the Committee (Sixth Threat).

Annexure B facts letter to Civic Legal of 13 October 2016

By letter dated 7 October 2016 Mr P referred the 6 October letter to the Committee.
By letter dated 10 October 2016 a legal officer from the Committee wrote to the Practitioner with respect to the 6 October letter and, amongst other things, invited the Practitioner to consider withdrawing the Sixth Threat.
By letter dated 13 October 2016 (13 October letter) (Exhibit 1 page 159) to Civic Legal, the Practitioner:
(1)noted that instead of responding to the 6 October letter, Mr P had referred it to the Committee; and
(2)stated '[w]e enquire one further time for you to advise us why either our client or our office should not refer [Mr P's] conduct to the [Committee] given the delay in your client complying with the orders of WorkCover of July 2015'.
The 13 October letter was copied to Client M.

Annexure B contentions letter to Civic Legal of 13 October 2016

The Committee says that the Practitioner prepared the 13 October letter and caused it to be sent to Civic Legal.
Alternatively, the Committee says that the Practitioner:
(a)caused or permitted the 13 October letter to be prepared and sent to Civic Legal;
(b)by letter dated 28 February 2017 and statutory declaration made on 13 April 2017 has expressly accepted professional responsibility for the 13 October letter being prepared and sent to Civic Legal; and
(c)despite being required by summons served on him by the Committee pursuant to s 520(1)(c) and (d) and s 520(3) of the LP Act (the subject of ground 4 of this Annexure B), has failed and refused to identify any other person involved in the composing of the wording for the 13 October letter.
The Committee contends that, by the 13 October letter, the Practitioner again threatened to report Mr P to the Committee (SeventhThreat).

Annexure B contentions letters to Civic Legal

The Committee contends that, at all material times the Practitioner had no, or alternatively no reasonable, grounds:
(a)for making the Fourth Threat;
(b)for making the Fifth Threat;
(c)for making the Sixth Threat; or
(d)for making the Seventh Threat.
The Committee says that, at all material times, the Practitioner knew there were no, or no reasonable, grounds, alternatively did not care whether or not there were reasonable grounds and was recklessly indifferent, or further alternatively was grossly careless as to whether or not there were reasonable grounds:
(a)for making the Fourth Threat;
(b)for making the Fifth Threat;
(c)for making the Sixth Threat; or
(d)for making the Seventh Threat.
Further and alternatively, by:
(a)making the Fourth Threat;
(b)further and alternatively, making the Fifth Threat;

the Committee says that the Practitioner attempted to advance Client F's matter by unfair means.

Further and alternatively, the Committee says that the Practitioner:
(a)made the Sixth Threat;
(b)further and alternatively, made the Seventh Threat;
in the belief that Mr P had made a complaint to the Committee about the Practitioner, and for the purpose of seeking to dissuade Mr P from pursuing the complaint which the Practitioner believed Mr P had made.
This conduct of the Practitioner in the view of the Committee fell short, by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence such that he is not a fit and proper person to engage in legal practice within the meaning of s 403(1)(b) of the LP Act. The Committee contends that this constitutes professional misconduct within the meaning of s 403 and s 438 of the LP Act.
Further and alternatively, Conduct Rule 6(1)(b) requires a legal practitioner to be courteous in all dealings with clients, other practitioners and other persons involved in a matter where the practitioner acts for a client.
The content and tone of each of the 22 March letter, the 11 May letter, the 12 May letter, the 7 September letter, the 6 October letter and the 13 October letter was, in the view of the Committee, discourteous and intemperate and in breach of the Practitioner's obligations of professional courtesy under Conduct Rule 6(1)(b).

Annexure B facts Second Information Summons, Second Document Summons and Second Undertaking

On or about 14 December 2016, the Committee commenced the investigation into R's Complaint.
By letter dated 17 January 2017 (Exhibit 1 pages 161 to 165) the Committee requested that the Practitioner provide submissions to the Committee about the conduct the subject of R's Complaint by 8 February 2017.
By summons dated 17 January 2017 (Exhibit 1 pages 166 to 167) and served on the Practitioner by email on or about that date pursuant to s 520(1)(c) and (d) and s 520(3) of the LP Act (SecondInformation Summons), the Law Complaints Officer who is and was at all material times an investigator within the meaning of s 520 of the LP Act required the Practitioner to provide to the Committee the following information to be verified by way of statutory declaration at or before 4 pm on 8 February 2017, in relation to each of the 22 March letter, the 11 May letter, the 12 May letter, the 7 September letter, the 23 September letter, the 6 October letter and the 13 October letter:
(a)whether the Practitioner composed the wording for the letter and, if so, on what date he did so and on what date/s he made any revisions to the wording of the letter;
(b)whether any other person was involved in the composing of the wording for the letter and, if so, to what extent they were involved in the composing of the wording of the letter, on what date/s they were involved in the composing of the wording of the letter and what part or parts of the letter they were involved in the composing of;
(c)whether the Practitioner had any discussions with the Client about the content of the letter either prior to or after the letter was signed and sent to WorkCover and, if so, the nature of those discussions; and
(d)on what date the Practitioner sent the letter, or caused the letter to be sent to WorkCover.
By further summons dated 17 January 2017 (Exhibit 1 pages 168 to 169) and served on the Practitioner by email on or about that date pursuant to s 520(1)(a) and (d) of the LP Act dated 4 January 2017 (Second Document Summons), the Law Complaints Officer required the Practitioner to produce to the Committee at or before 4 pm on 8 February 2017, the following documents:
(1)the Practice's entire original file as at 30 October 2016 and all documents arising by reason of the Practice acting for Client F in respect of Client F's Claim up until 30 October 2016 (including but not limited to, relevantly (by paragraph 1(d) of the Second Document Summons), all time sheets/pre-billing reports, invoices and records relating to work done and the payment of invoices); and
(2)in respect of each of the 22 March letter, the 11 May letter, the 12 May letter, the 7 September letter, the 23 September letter, the 6 October letter and the 13 October letter:
(a)all draft versions of the letter (in word format) including track changes and/or comments if applicable;
(b)a complete audit trail from the computer system used to create the letter showing the history or log of all activity performed in respect of the letter, including but not limited to when the letter was first created and by whom and the date any changes were made to the letter and by whom; and
(c)all metadata and other data available on the Practice's computer system in relation to the electronic copy of each draft version of the letter and the final version of the letter.
Following receipt of a letter from the Practitioner to the Committee dated 8 February 2017, the Law Complaints Officer varied the time for compliance with each summons to 4 pm on 15 February 2017.
As a result of a further letter from the Practitioner to the Committee dated 15 February 2017, the Law Complaints Officer further varied the time for compliance with each summons to 4 pm on 28 February 2017.
The Practitioner failed to comply with either the Second Information Summons or the Second Document Summons by 4 pm on 28 February 2017.
By letter to the Committee dated 28 February 2017 (Exhibit 1 page 185) the Practitioner asked for a further extension of time to provide his submissions 'only to close of business on 6 March 2017'.
The Practitioner wrote a further letter to the Committee dated 28 February 2017 (Exhibit 1 pages 188 to 189) in which he made the following assertions:
(1)With respect to the Second Document Summons, the Practitioner informed the Committee that he would not provide all of the Practice's entire original file as required by the summons but would provide his entire original file up to 7 September 2016, and that he did not know what an 'audit trail' is or what 'meta data' was for the purposes of paragraph 2 of the summons but that he would provide copies of the 'relevant' documents by 3 March 2017.
(2)With respect to the Second Information Summons, the Practitioner asserted that:
'the information sought in that summons is irrelevant to the complaint or the Conduct Investigation. As you are no doubt aware, s 584 of the [LP Act] in these circumstances deems me as responsible from a professional point of view for all the work done by employees under my supervision. In light of that provision, I do not understand how, with respect to clauses 1a) to d) of this Summons, those clauses are relevant (given that I am ultimately responsible for the contents of any letters on my files that leave this office) or cannot otherwise be determined from the original file itself. In these circumstances, at this stage, I believe s 520(3) of the [LP Act] only requires a statutory declaration to be provided in relation to information that is relevant to a complaint. In my respectful view none of the matters set out in that Summons are relevant'.
By letter dated 1 March 2017 the Committee responded to the Practitioner and informed him, relevantly, that the Second Information Summons was issued in relation to the specific items of correspondence which formed the substance of R's Complaint, and that the investigation of whether the Practitioner's conduct in preparing and sending the correspondence amounts to unsatisfactory professional conduct or professional misconduct 'requires an assessment of the circumstances in which you composed the wording for each item of correspondence, whether you received any assistance in preparing the correspondence or supervised any other legal practitioner in the preparation of the correspondence and the instructions received from your client in relation to the preparation of the correspondence. The information requested in the Second Information Summons is directed to a consideration of these issues and is reasonably related to the proper subject matter of the Committee's investigation'.
By letter dated 3 March 2017 (Exhibit 1 pages 192 and 193) (received by the Committee on 7 March 2017) the Practitioner, relevantly, advised that:
(1)copies of 'the relevant documents' referred to in the Second Document Summons would be provided to the Committee by 4 pm on 7 March 2017;
(2)in response to the Second Information Summons, he would either provide the Committee with a statutory declaration in response or an application to set the Summons aside by 4 pm on 10 March 2017; and
(3)confirmed that his submissions pursuant to s 414 of the Act would be provided by 4 pm on 7 March 2017.

The Tribunal further finds that both of those letters breached Conduct Rule 6(2)(b) and that by sending those letters in breach of Conduct Rule 6(2)(b), the Practitioner's conduct fell substantially short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner and is professional misconduct.

Annexure A Ground 2

The Committee says that the Practitioner engaged in professional misconduct within the meaning of the LP Act by, without reasonable excuse, and for the purpose or a substantial purpose of seeking to frustrate or hinder the Committee's investigation into the WorkCover Complaint by failing to comply with the First Document Summons in contravention of s 520(5) of the LP Act or contrary to the Practitioner's obligation under s 532(3)(b) of the LP Act or both.
The Practitioner does not dispute that he failed to comply with the First Document Summons. However, he takes issue with the allegation that his failure to comply with the First Document Summons was for the purpose or substantial purpose of seeking to frustrate or hinder the Committee's investigation into the WorkCover Complaint. Instead, the Practitioner says that he considers the First Document Summons to be 'unfair and oppressive to the extent that it goes beyond what is relevant and required when regard is had to the matter under investigation'; Practitioner's Amended Reply at para 20.
A summons issued under Pt 15, Div 2 of the LP Act is issued by an investigator, not by a court. The power of an investigator to issue such a summons derives from s 520(1) of the LP Act and is to be exercised for the purpose of carrying out a complaint investigation in relation to an Australian lawyer; Legal Profession Complaints Committee v Lourey [2019] WASC 62 (Lourey) at [62]. In Lourey, the Court found that the proper construction of s 520 of the LP Act is that a summons issued pursuant to s 520 imposes a compulsory obligation of the same character as the former subpoena ad test or duces tecum, as the case may be, issued by a court for the attendance of a witness for examination or production of documents in a civil action. The Court went on to say at [67] that, when read in context, s 520 of the LP Act imposes a compulsory obligation and prescribes, amongst other things, the consequence for nonobservance of that obligation.
In Lourey at [88], the Court said it was for the Committee, and not (in that case) the Court, to determine how the investigation is to be conducted.
While s 520(2) of the LP Act provides a regime for objection to be taken by the lawyer concerned on certain grounds, those grounds do not apply in this case. In particular, the LP Act does not provide a regime for objection to a summons on the ground of relevance. Further, the breadth of the documents sought through the summons does not of itself establish that the issue was beyond power; Lourey at [89].
In this case, the Tribunal considers that, by applying the following considerations, set out in Lourey at [99] [113], the issue by the Committee's investigation of the First Document Summons was authorised by s 520 of the LP Act.
First, the Tribunal is satisfied that the First Document Summons was issued for the purpose of carrying out a complaint investigation in relation to the Practitioner, namely the investigation into the WorkCover Complaint.
Second, the Committee was acting in response to the WorkCover Complaint and, under s 421(2) of the LP Act, had to investigate that complaint.
Third, the First Document Summons is concordant with the scope of the WorkCover Complaint investigation. The documents required by the First Document Summons are set out at [55] above. The Tribunal is satisfied that the documents to be produced relate to the Committee's investigation into the WorkCover Complaint.
The Tribunal accordingly finds that the Practitioner failed to comply with the First Document Summons by its due date and has therefore contravened s 520(5) of the LP Act which provides that a person must comply with a requirement of an investigator. It is unnecessary for the Tribunal to make a finding as to why the Practitioner failed to comply with the First Document Summons other than, for the purpose of s 532(3) of the LP Act, to establish whether the Practitioner had a 'reasonable excuse' for his failure. We deal with that below.
Section 404 of the LP Act provides that a contravention of the LP Act is capable of constituting unsatisfactory professional conduct or professional misconduct.
The Practitioner's failure to comply with the First Document Summons, despite the numerous extensions of time given to him to do so, demonstrates to the Tribunal the Practitioner's disregard for the Committee's investigation of the WorkCover Complaint and for his own obligations under the LP Act. The Practitioner has contravened the LP Act and the Tribunal regards this conduct as falling short by a substantial degree of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. The Tribunal finds that the Practitioner's conduct is professional misconduct.
The Practitioner says in the Practitioner's Amended Reply at para 20.6 that if the Tribunal finds that the Practitioner has failed to comply with the First Document Summons then pursuant to s 532(3) he had a reasonable excuse for that failure. The Practitioner says that he made every attempt to comply with the First Document Summons and that 'only relevant information to the letters subject of the complaint can be summonsed by the [Committee]'; Practitioner's Amended Reply para 20.7.
The Tribunal does not agree that the Practitioner had a reasonable excuse for failing to comply with the First Document Summons. It is not for the Practitioner to decide what is or is not relevant to the Committee's investigation and the fact that the Practitioner has come to his own conclusion that the First Document Summons is unreasonable is not a 'reasonable excuse'. If the Tribunal were to find otherwise, it would be a simple enough matter for any practitioner on the same basis to disregard a summons issued by the Committee under s 520 of the LP Act.

Annexure A Ground 3

The Committee says that the Practitioner engaged in professional misconduct within the meaning of the LP Act by, without reasonable excuse and for the purpose or a substantial purpose of seeking to frustrate or hinder the Committee's investigation into the WorkCover Complaint by failing to comply with the First Information Summons in contravention of s 520(5) of the LP Act or contrary to the Practitioner's obligation under s 532(3)(b) of the LP Act or both.
The Practitioner does not dispute that he failed to comply with the First Information Summons. However, he again takes issue with the allegation that his failure to comply with the First Information Summons was for the purpose or substantial purpose of seeking to frustrate or hinder the Committee's investigation into the Complaint. Instead, the Practitioner says that the information sought by the Committee by the First Information Summons was not relevant or required in respect of the matter under investigation; Practitioner's Amended Reply at para 19.
The First Information Summons is also a summons issued under s 520 of the LP Act and what we have said about the First Document Summons earlier in these reasons is equally applicable to the First Information Summons.
Again, the Tribunal is satisfied that the First Information Summons was issued for the purpose of carrying out a complaint investigation in relation to the Practitioner, namely the investigation into the WorkCover Complaint.
The Committee was acting in response to the WorkCover Complaint and, under s 421(2) of the LP Act, had to investigate that complaint.
Also, the First Information Summons is concordant with the scope of the WorkCover Complaint investigation. The information required by the First Information Summons, in the Tribunal's opinion, relates to the Committee's investigation.
The Tribunal accordingly finds that the Practitioner failed to comply with the First Information Summons in full by its due date and has therefore contravened s 520(5) of the LP Act. Again, it is unnecessary for the Tribunal to consider why the Practitioner failed to comply with the First Information Summons, other than, again, to establish whether the Practitioner had a 'reasonable excuse' for his failure. Again, we find that he did not have a reasonable excuse.
As we have said previously, s 404 of the LP Act provides that a contravention of the LP Act is capable of constituting unsatisfactory professional conduct or professional misconduct.
The Practitioner's continuous failure to comply with the First Information Summons, despite the numerous extensions of time given to him to do so, demonstrates to the Tribunal the Practitioner's disregard for the Committee's investigation of the WorkCover Complaint and his own obligations under the LP Act. The Practitioner has contravened the LP Act and the Tribunal regards this conduct as conduct falling short by a substantial degree of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. The Tribunal finds that the Practitioner has engaged in professional misconduct.

Annexure A Ground 4

The Committee says that the Practitioner engaged in professional misconduct during the investigation by the Committee of the WorkCover Complaint by, without reasonable excuse, failing to comply with the First Undertaking he gave to the Committee to provide his submissions in relation to the conduct the subject of the WorkCover Complaint.
The Practitioner 'denies that the failure to provide the documents on time pursuant to the [First Undertaking] was unprofessional'; Practitioner's Amended Reply at para 22. The Practitioner says he was not seeking to provide a formal undertaking 'in a strict legal sense' to the Committee under r 22(1) of the Conduct Rules. Instead, the Practitioner says that he was simply seeking to negotiate an extension to provide submissions to the Committee that were detailed and accurate.
The First Undertaking was in respect of submissions which the Practitioner was entitled to make under s 414 of the LP Act following the making of the WorkCover Complaint. The Committee had written to the Practitioner 'requesting' submissions about the WorkCover Complaint; Exhibit 1 page 34.
Of course, the Practitioner was under no obligation to make any such submissions, the obligation being on the Committee to consider them if made. It would have been open to the Practitioner to advise the Committee that he did not intend to make submissions. However, once the Practitioner had indicated that he was intending to make submissions, then failure to do so within the time period specified by the Committee would hinder the Committee's investigation into the WorkCover Complaint.
The Tribunal does not accept the Practitioner's contention that the First Undertaking was merely the Practitioner seeking a further extension of time within which to provide his submissions to the Committee. The Practitioner had on a number of previous occasions sought and received extensions of time, but in his letter dated 14 March 2017 (which contains the First Undertaking) he added the words 'and I undertake to meet that deadline'. In the Tribunal's opinion, the addition of these words in contrast to other requests for extensions of time must be given some meaning and the Tribunal concludes that the only meaning which can be given to those words is that he intended to provide a formal undertaking by which he would be bound.
We have already set out earlier in these reasons the remarks of Martin CJ in Detata about the importance of practitioners complying with their undertakings. It would have been open to the Practitioner, prior to the expiry date given in the First Undertaking, to seek an extension of that date or perhaps even to withdraw the First Undertaking, but the Practitioner did neither. We find that in failing to comply with the First Undertaking, the Practitioner's conduct fell short by a substantial degree of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence. The Tribunal finds that the Practitioner is therefore guilty of professional misconduct within the meaning of s 403 of the LP Act.

Annexure B Ground 1

The Committee's allegation is that the Practitioner engaged in professional misconduct within the meaning of the LP Act by preparing and causing to be sent:
(a)the 22 March letter to RiskCover;
(b)the 11 May letter to Civic Legal;
(c)the 12 May letter to Civic Legal; and
(d)the 7 September letter to Civic Legal.
the contents of which were intemperate, threating, intimidating and/or discourteous and by which the Practitioner attempted to advance Client F's matter by unfair means.
The Committee says that the 12 May letter also contained a threat against Mr R and that the 7 September letter also contained a threat against a claims officer with RiskCover.
Turning first to the 22 March letter, the Tribunal considers that this letter, addressed to RiskCover and stating that RiskCover claims officers do not understand the legislative environment in which they operate and that those officers, despite the efforts of the Practitioner in the past, continue to operate in that ignorance, is discourteous.
For the reasons already set out, the Tribunal infers that the 22 March letter was written by the Practitioner himself, not a junior practitioner or paralegal for whom the Practitioner is responsible.
The Tribunal considers that by preparing and causing the 22 March letter to be sent, the Practitioner has contravened Conduct Rule 6(1)(b) and engaged in unsatisfactory professional conduct.
However, the Tribunal does not consider that the 11 May letter to Mr R (which the Tribunal infers was written by the Practitioner himself) breaches Conduct Rule 6(1)(b) of the Conduct Rules. While somewhat aggressive, there is nothing in its content which the Tribunal regards as discourteous. We consider that the Practitioner was endeavouring to act in the best interests of Client F.
The Tribunal also finds that the 12 May letter to Mr R is not discourteous. However, the threat that the Practitioner 'will take further instructions from our client in relation to your conduct and your response including whether or not he wishes to bring a complaint to the [Committee]' is threatening and is an attempt to advance Client F's matter by unfair means. It is, of course, entirely open to the Practitioner to take instructions from Client F as to whether or not Client F wishes to make a complaint against Mr R to the Committee. However, there is no requirement for the Practitioner to inform Mr R of his intention to do so. That issue is entirely between the Practitioner and Client F. Indeed, the inference which the Tribunal draws from the Practitioner's mention of a complaint to the Committee is that, if Mr R does not respond to the Practitioner in a manner satisfactory to the Practitioner then a complaint may be made to the Committee. In the Tribunal's view, the only reason for including those words in the 12 May letter was to attempt to advance Client F's position by threatening Mr R with the prospect of a complaint to the Committee.
Turning to the 7 September letter, the Tribunal does not consider that this is discourteous to Mr R. The Practitioner's statement that '[t]here is no need for you to summarise what you understand to be the law in relation to legal costs for WorkCover applications' is aggressive but is not discourteous. However, the Tribunal considers that by including in the 7 September letter a notice to the effect that costs would be sought from the RiskCover claims officer and Mr R, the 7 September letter is intimidating and threatening to the relevant RiskCover claims officer and to Mr R in circumstances where the Practitioner had no grounds to make those threats. The matter was, by that stage, in the process of being finalised, subject only to agreeing the appropriate orders to be made. The Tribunal infers that by sending the 7 September letter, the Practitioner was attempting to advance the progress of his client's claim by making threats against another legal practitioner and against an officer of the client of that legal practitioner.
The Tribunal considers that by sending the 12 May letter and the 7 September letter, the Practitioner contravened Conduct Rule 6(2)(b). The Tribunal finds that in so doing the Practitioner engaged in professional misconduct within the meaning of the LP Act.

Annexure B Ground 2

The Committee alleges that the 6 October letter and the 13 October letter, both sent by the Practitioner to Mr P, a legal practitioner, were intemperate, threatening, intimidating and/or discourteous in that:
(a)the 6 October letter contained a threat by the Practitioner to report Mr P's conduct to the Committee; and
(b)the 13 October letter exacerbated the Practitioner's conduct by failing and refusing to withdraw that threat and repeating his threat to report Mr P's conduct to the Committee.
The Practitioner in the 6 October letter asks Mr P to explain why his conduct (the failure of his client to comply with certain orders) should not be reported to the Committee. In the Tribunal's view, the only inference which can be drawn from this question by the Practitioner is that it was intended to discourage Mr P from pressing what the Practitioner understood had been a complaint by Mr P to the Committee about the Practitioner's conduct.
However, again, if the Practitioner is aware of some conduct on the part of Mr P which the Practitioner considers warrants an investigation by the Committee, there is no need for the Practitioner to raise this with Mr P at all. If the Practitioner considers that Mr P has somehow breached his professional obligations, then it is of course open to the Practitioner to report this to the Committee. However, there is no requirement or obligation on the part of the Practitioner to investigate that conduct prior to the complaint being made or to give notice to Mr P that such a complaint is to be made.
The Tribunal infers that the Practitioner made this threat in the expectation that if the Practitioner does not press the complaint to the Committee then nor will Mr P press his complaint against the Practitioner.
The Tribunal considers that by making the threat contained in the 6 October letter the Practitioner contravened Conduct Rule 6(2)(b) and engaged in professional misconduct within the meaning of the LP Act.
The 13 October contains a repeat of the threat contained in the 6 October letter and does not require any separate finding by the Tribunal.

Annexure B Ground 3

The Committee says that the Practitioner engaged in professional misconduct within the meaning of the LP Act by, without reasonable excuse, and for the purpose or a substantial purpose of seeking to frustrate or hinder the Committee's investigation into the Complaint by the Director by failing to comply with the Second Document Summons in contravention of the Practitioner's obligation under s 532(3)(b) of the LP Act.
The Practitioner does not dispute that he failed to comply with the Second Document Summons. However, he takes issue with the allegation that his failure to comply was for the purpose or substantial purpose of seeking to frustrate or hinder the Committee's investigation into the Complaint. Instead, the Practitioner says that the Second Document Summons was 'unfair and oppressive to the extent that it goes beyond what is relevant and required when regard is had to the matter under investigation'; Practitioner's Amended Reply at para 30.

Irrespective of the reasons why the Practitioner did not comply with the Second Document Summons, s 520(5) of the LP Act requires a practitioner to comply with any summons issued by the Committee. It is unnecessary to repeat what we have said in connection with the First Document Summons, and what we have said applies equally to the Second Document Summons. The Tribunal considers that the Practitioner had no reasonable excuse to not comply with the Second Document Summons and the Practitioner's conduct constitutes professional misconduct.

Annexure B Ground 4

The Committee says that the Practitioner engaged in professional misconduct within the meaning of the LP Act by, without reasonable excuse, and for the purpose or a substantial purpose of seeking to frustrate or hinder the Committee's investigation into the Complaint by the Director by failing to comply with the Second Information Summons in contravention of the Practitioner's obligation under s 532(3)(b) of the LP Act.
The Practitioner does not dispute that he failed to comply with the Second Information Summons. However, he takes issue with the allegation that his failure to comply was for the purpose or substantial purpose of seeking to frustrate or hinder the Committee's investigation into R's Complaint. Instead, the Practitioner says that the Second Information Summons was 'unfair and oppressive to the extent that it goes beyond what is relevant and required when regard is had to the matter under investigation'; Practitioner's Amended Reply at para 30.
Irrespective of the reasons why the Practitioner did not comply with the Second Information Summons, s 520(5) of the LP Act requires a practitioner to comply with any summons issued by the Committee. Again, it is unnecessary to repeat what we have said in connection with the First Information Summons, and what we have said applies equally to the Second Information Summons. The Tribunal considers that the Practitioner had no reasonable excuse to do so and that the Practitioner's conduct constitutes professional misconduct.

Annexure B Ground 5

The Practitioner 'denies that the failure to provide the documents on time pursuant to the [Second Undertaking] was unprofessional'. The Practitioner says he was not seeking to provide a formal undertaking 'in a strict legal sense' to the Committee under r 22(1) of the Conduct Rules. Instead, the Practitioner says that he was simply seeking to negotiate an extension to provide submissions to the Committee that were detailed and accurate.
The Second Undertaking was in respect of submissions which the Practitioner was entitled to make under s 414 of the LP Act following the making of the WorkCover Complaint. The Committee had written to the Practitioner 'requesting' submissions about the WorkCover Complaint; Exhibit 1 page 34. Of course, as we have already said, the Practitioner was under no obligation to make any such submissions, the obligation being on the Committee to consider them if made. Again, it would have been open to the Practitioner to advise the Committee that he did not intend to make submissions. However, once the Practitioner had indicated that he was intending to make submissions, then failure to do so within the time period specified by the Committee hinders the Committee's investigation into the WorkCover Complaint.
Again, the Tribunal does not accept the Practitioner's contention that the Second Undertaking was merely the Practitioner seeking a further extension of time within which to provide his submissions to the Committee. The Practitioner had on a number of previous occasions sought and received extensions of time, but in his letter dated 14 March 2017 (which contains the Second Undertaking) he added the words 'and I undertake to meet that deadline'. The Tribunal remains of the view that the addition of these words in contrast to other requests for extensions of time must be given some meaning and the Tribunal again concludes that the only meaning which can be given to those words is that he intended to provide a formal undertaking by which he would be bound.
We have already sent out earlier in these reasons the remarks of Martin CJ in Detata about the importance of practitioners complying with their undertakings. It would have been open to the Practitioner, prior to the expiry date given in the Second Undertaking, to seek an extension of that date or perhaps even to withdraw the Second Undertaking, but the Practitioner did neither.
As the Tribunal concluded in respect of the First Undertaking, by failing to comply with the Second Undertaking the Practitioner's conduct, by a substantial degree, fell short of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence. The Practitioner is therefore guilty of professional misconduct within the meaning of s 403 of the LP Act.

Annexure C

The Committee's allegation is that the Practitioner engaged in professional misconduct by preparing and causing to be sent, alternatively by causing or permitting to be prepared and sent and for which the Practitioner has expressly accepted responsibility, the 6 January letter to Dr Finch which was discourteous and intemperate in its tone and content, and which had the potential to bring the profession into disrepute.
The Tribunal has already found that the Practitioner prepared the 6 January letter and then caused it to be sent.
The remaining issue is then whether or not the content of the 6 January letter was discourteous and intemperate.
The Tribunal finds that the phrase 'you seem to be confused regarding the nature of that document and its applicability and relevance to the monies you say our client owes' is discourteous. Further, it is unclear why the Practitioner should think that Dr Finch had been advised by either a doctor from the AMA or a lawyer from the Law Society about the Guidelines but the Practitioner clearly suggests that Dr Finch has somehow misunderstood something which he has been told. The Tribunal finds that the 6 January letter was discourteous to Dr Finch and is a contravention of Conduct Rule 6(1)(b). This conduct constitutes unsatisfactory professional conduct.
The Tribunal agrees that the 6 January letter also fails to properly consider the terms on which Dr Finch indicated that he would appear at the trial in the proceedings and the basis on which the cancellation fee would apply. The Practitioner by so doing has not met his own obligations under Conduct Rule 25.
Further, the Practitioner in the 6 January letter alleges by implication that Dr Finch had made a complaint to the Committee with the intention of pressuring the Practice in paying his outstanding invoices.
The Practitioner also expressly states in the 6 January letter that he considers that Dr Finch is implying that Dr Finch would only participate in the proceedings if certain payments were made. The Tribunal considers that this aspect of the 6 January letter, in addition to being discourteous, also, by its content and tone, suggests that the Practitioner is addressing Dr Finch on behalf of the profession as a whole. This has the potential to bring the profession into disrepute and was therefore also in breach of the Practitioner's obligations under Conduct Rule 6(2)(c).
The Tribunal considers that by writing and sending the 6 January letter the Practitioner is guilty of professional misconduct.

Annexure D

The Committee alleges that the Practitioner is guilty of professional misconduct by preparing and sending the 8 May letter to Dr Boehm which was discourteous, threatening and intemperate in its tone and content and which had the potential to bring the profession into disrepute.
The Tribunal has already found that the Practitioner prepared the 8 May letter, chose the wording of that letter before it was sent and then caused it to be sent.
The issue is then whether or not the 8 May letter was discourteous, threatening and intemperate in its tone and content and whether it had the potential to bring the profession into disrepute in contravention of Conduct Rule 6(2)(c).
The Tribunal finds that, as alleged by the Committee, the 8 May letter was a disproportionate response to an error made by Dr Boehm's office in incorrectly addressing the Invoice to the practice. We also consider that the 8 May letter used language which was discourteous and had the potential to bring the profession into disrepute.
However, the Tribunal acknowledges that the Practitioner apologised to Dr Boehm in a letter from the Practitioner dated 23 June 2017 and accepts the explanation which was contained in that letter.
The Tribunal further accepts that, while the Practitioner's conduct is not to be condoned, the Practitioner understands that the 8 May letter was inappropriate and should not have been sent. In the circumstances, the Tribunal makes no finding against the Practitioner in respect of the matters raised in Annexure D.

Orders

The Tribunal finds that Michael Joseph Lourey (Practitioner), a legal practitioner director of Chapmans Lawyers Pty Ltd, and from 14 September 2017, Eureka Services Pty Ltd, trading as Chapmans Barristers & Solicitors, behaved in a way that constitutes unsatisfactory professional conduct and professional misconduct as defined in s 402 and s 403(1) respectively of the Legal Profession Act 2008 (WA) as follows:
1.The Practitioner engaged in unsatisfactory professional conduct in writing and causing to be sent a letter dated 17 June 2016 to the Director of WorkCover WA which breached rule 6(1)(b) of the Legal Profession Conduct Rules 2010 (WA) (Conduct Rules).
2.The Practitioner engaged in professional misconduct in writing and causing to be sent a letter dated 17 June 2016 to the Director of WorkCover WA which breached Conduct Rule 6(2)(b).
3.The Practitioner engaged in unsatisfactory professional conduct in preparing and causing to be sent a letter dated 29 June 2016 to the Director of WorkCover WA which breached Conduct Rule 6(1)(b).
4.The Practitioner engaged in professional misconduct in preparing and causing to be sent a letter dated 29 June 2016 to the Director of WorkCover WA which breached Conduct Rule 6(2)(b).
5.The Practitioner engaged in professional misconduct in failing to comply with a document summons issued by the Law Complaints Officer on 4 January 2017 where he was required to produce documents by a certain date.
6.The Practitioner engaged in professional misconduct in failing to comply with an information summons issued by the Law Complaints Officer on 4 January 2017 where he was required to provide information by way of statutory declaration by a certain date.
7.The Practitioner engaged in professional misconduct in failing to adhere to his undertaking given in a letter dated 14 March 2017 to the applicant to provide his submissions in relation to his conduct.
8.The Practitioner engaged in unsatisfactory professional conduct in preparing and causing to be sent a letter dated 22 March 2016 to the Insurance Commission of Western Australia in proceedings where he acted in a claim lodged under the WC Act which breached Conduct Rule 6(1)(b).
9.The Practitioner engaged in professional misconduct in preparing and causing to be sent a letter dated 12 May 2016 to another practitioner which breached Conduct Rule 6(2)(b).
10.The Practitioner engaged in professional misconduct in preparing and causing to be sent a letter dated 7 September 2016 to another practitioner which breached Conduct Rule 6(2)(b).
11.The Practitioner engaged in professional misconduct in preparing and causing to be sent letters dated 6 October 2016 and 13 October 2016 to another practitioner, which breached Conduct Rule 6(2)(b).
12.The Practitioner engaged in professional misconduct in failing to comply with a document summons issued by the applicant's Law Complaints Officer on 17 January 2017 where he was required to produce documents by a certain date.
13.The Practitioner engaged in professional misconduct in failing to comply with an information summons issued by the applicant's Law Complaints Officer on 17 January 2017 where he was required to provide information by way of statutory declaration by a certain date.
14.The Practitioner engaged in professional misconduct in failing to adhere to his undertaking in a letter dated 14 March 2017 to the applicant to provide his submissions in relation to his conduct.
15.The Practitioner engaged in unsatisfactory professional conduct in preparing and causing to be sent a letter dated 6 January 2017 to a doctor in proceedings concerning the Practitioner's client which breached Conduct Rule 6(1)(b).
16.The Practitioner engaged in professional misconduct in preparing and causing to be sent a letter dated 6 January 2017 to a doctor in proceedings concerning the Practitioner's client which breached Conduct Rule 6(2)(b) and Conduct Rule 6(2)(c).
17.The application is otherwise dismissed.
18.The parties will make submissions to the Tribunal on penalty and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE T SHARP, DEPUTY PRESIDENT
21 JUNE 2019