LEGAL PROFESSION COMPLAINTS COMMITTEE and PARK
[2017] WASAT 89
•22 JUNE 2017
LEGAL PROFESSION COMPLAINTS COMMITTEE and PARK [2017] WASAT 89
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 89 | |
| LEGAL PROFESSION ACT 2008 (WA) | |||
| Case No: | VR:105/2015 | 13 JUNE 2017 | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) MR D AITKEN (SENIOR MEMBER) MR P DE VILLIERS (MEMBER) | 22/06/17 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Practitioner reprimanded Practitioner to pay fine of $22,500 Practitioner to pay costs of Legal Profession Complaints Committee | ||
| B | |||
| PDF Version |
| Parties: | LEGAL PROFESSION COMPLAINTS COMMITTEE JOHN FREDERICK PARK |
Catchwords: | Legal practitioner Gross carelessness Overcharging Penalty and costs Fine imposed |
Legislation: | Legal Profession Act 2008 (WA), s 438, s 439, s 441, Pt 13 Legal Profession Conduct Rules 2010 (WA), r 2(b), r 7(h), r 18(3) |
Case References: | A Practitioner v The Medical Board of Western Australia [2005] WASC 198 A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253 Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54 Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62 Craig v The Medical Board of South Australia [2001] SASC 169 Jemielita v The Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992) Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Law Society of New South Wales v Walsh [1997] NSWCA 185 Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S) Legal Profession Complaints Committee and Bower [2017] WASAT 47 Legal Profession Complaints Committee and in de Braekt [2013] WASAT 124 Legal Profession Complaints Committee and Leask [2010] WASAT 133 Legal Profession Complaints Committee v Brickhill [2013] WASC 369 Legal Profession Complaints Committee v Detata [2012] WASCA 2014 Legal Profession Complaints Committee v Lashansky [2007] WASC 211 Legal Profession Complaints Committee v Love [2014] WASC 389 Legal Profession Complaints Committee v Masten [2011] WASC 71 Legal Profession Complaints Committee v O'Halloran [2013] WASC 430 Legal Profession Complaints Committee v Pepe [2009] WASC 39 Legal Profession Complaints Committee v Segler [2014] WASC 159 New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 New South Wales Bar Association v Evatt (1968) 117 CLR 177 New South Wales Bar Association v Hamman [1999] NSWCA 404 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 Quinn v Law Institute of Victoria [2007] VSCA 122 Re A Practitioner (1984) 36 SASR 590 Re Maraj (a Legal Practitioner) (1995) 15 WAR 12 Smith v New South Wales Bar Association [2014] WASAT 112 (S); [1992] HCA 36; (1992) 176 CLR 256 Stirling v Legal Services Commissioner [2013] VSCA 374 Veterinary Practitioners Board of NSW v Johnson [2010] NSWADT 308 Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159 |
Orders | 1. The practitioner is reprimanded pursuant to s 439(d) of the Legal Profession Act 2008 (WA).,2. The practitioner is to pay a fine of $22,500 pursuant to s 438(2)(b) and s 441 (a) of the Legal Profession Act 2008 (WA).,3. The practitioner is to pay the Legal Profession Complaints Committee's costs of $20,000 pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA).,4. The amounts specified in orders 1 and 2 be paid to the Legal Practice Board within 30 days of the date of this order, or as otherwise agreed between the practitioner and the Legal Practice Board. |
Summary | This decision related to the appropriate penalty to be imposed on a legal practitioner following agreement between the practitioner and the Legal Profession Complaints Committee as to the breach findings and the facts of the matter. Although the parties also agreed on a penalty of a $12,000 fine for the Tribunal's consideration, the Tribunal was not satisfied that the agreed outcome reflected adequate penalty. The parties were therefore required to make submissions on penalty.,In order to reflect the seriousness of the practitioner's conduct which occurred within the circumstances of a single retainer but which involved separate components of gross carelessness and overcharging, the Tribunal determined that a fine of $15,000 and $7,500 respectively, was appropriate. The practitioner also agreed to pay the Committee's costs of $20,000. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and PARK [2017] WASAT 89 MEMBER : JUSTICE J C CURTHOYS (PRESIDENT)
- MR D AITKEN (SENIOR MEMBER)
MR P DE VILLIERS (MEMBER)
- Applicant
AND
JOHN FREDERICK PARK
Respondent
Catchwords:
Legal practitioner - Gross carelessness - Overcharging - Penalty and costs - Fine imposed
Legislation:
Legal Profession Act 2008 (WA), s 438, s 439, s 441, Pt 13
Legal Profession Conduct Rules 2010 (WA), r 2(b), r 7(h), r 18(3)
Result:
Practitioner reprimanded
Practitioner to pay fine of $22,500
Practitioner to pay costs of Legal Profession Complaints Committee
Summary of Tribunal's decision:
This decision related to the appropriate penalty to be imposed on a legal practitioner following agreement between the practitioner and the Legal Profession Complaints Committee as to the breach findings and the facts of the matter. Although the parties also agreed on a penalty of a $12,000 fine for the Tribunal's consideration, the Tribunal was not satisfied that the agreed outcome reflected adequate penalty. The parties were therefore required to make submissions on penalty.
In order to reflect the seriousness of the practitioner's conduct which occurred within the circumstances of a single retainer but which involved separate components of gross carelessness and overcharging, the Tribunal determined that a fine of $15,000 and $7,500 respectively, was appropriate. The practitioner also agreed to pay the Committee's costs of $20,000.
Category: B
Representation:
Counsel:
Applicant : Mr S Vandongen
Respondent : Mr S Penglis
Solicitors:
Applicant : Law Complaints Officer
Respondent : Michael Paterson & Associates
Case(s) referred to in decision(s):
A Practitioner v The Medical Board of Western Australia [2005] WASC 198
A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253
Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438
Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54
Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62
Craig v The Medical Board of South Australia [2001] SASC 169
Jemielita v The Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992)
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
Law Society of New South Wales v Walsh [1997] NSWCA 185
Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9
Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S)
Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S)
Legal Profession Complaints Committee and Bower [2017] WASAT 47
Legal Profession Complaints Committee and in de Braekt [2013] WASAT 124
Legal Profession Complaints Committee and Leask [2010] WASAT 133
Legal Profession Complaints Committee v Brickhill [2013] WASC 369
Legal Profession Complaints Committee v Detata [2012] WASCA 2014
Legal Profession Complaints Committee v Lashansky [2007] WASC 211
Legal Profession Complaints Committee v Love [2014] WASC 389
Legal Profession Complaints Committee v Masten [2011] WASC 71
Legal Profession Complaints Committee v O'Halloran [2013] WASC 430
Legal Profession Complaints Committee v Pepe [2009] WASC 39
Legal Profession Complaints Committee v Segler [2014] WASC 159
New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279
New South Wales Bar Association v Evatt (1968) 117 CLR 177
New South Wales Bar Association v Hamman [1999] NSWCA 404
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Quinn v Law Institute of Victoria [2007] VSCA 122
Re A Practitioner (1984) 36 SASR 590
Re Maraj (a Legal Practitioner) (1995) 15 WAR 12
Smith v New South Wales Bar Association [2014] WASAT 112 (S); [1992] HCA 36; (1992) 176 CLR 256
Stirling v Legal Services Commissioner [2013] VSCA 374
Veterinary Practitioners Board of NSW v Johnson [2010] NSWADT 308
Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159
Introduction
1 This decision relates to the appropriate penalty to be imposed on Mr John Frederick Park. The breach findings and the facts were agreed between Mr Park and the Legal Profession Complaints Committee (Committee).
The agreed findings
2 On 11 May 2017, the Tribunal made the following findings with the consent of the parties:
1 That the practitioner JOHN FREDERICK PARK (the practitioner) on about 18 May 2010 and 12 March 2012 engaged in professional misconduct pursuant to sections 403 and 438 of the Legal Profession Act 2008 (WA) (the Act) in that his conduct to a substantial degree fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence by swearing an affidavit on or about 18 May 2010 (Practitioner's Affidavit) for the purposes of Supreme Court of Western Australia proceedings LPA 9 of 2010 and LPA 11 of 2010 (the Costs Proceedings) in which he deposed at paragraph 11 that:
a. 'DG Price & Co had not prepared [Ms MB's] proof of evidence' and
b. 'My firm had to prepare that proof of evidence almost in its entirety' (the Statements);
and which, on 12 March 2012, the practitioner adopted as his evidence in chief in the Costs Proceedings,
in that:
a. the Statements were misleading and had the potential to mislead the Court; and
b. further, that the practitioner in making the Statements was grossly careless as to whether the Statements were, and thereby the Practitioner's Affidavit was, misleading and had the potential to mislead the Court.
2. That the practitioner between about 13 February 2009 and 7 January 2010 engaged in unsatisfactory professional conduct pursuant to sections 402 and 438 of the Act in the course of acting on behalf of Ms MB (client) in respect of her defence to criminal charges in the District Court (Criminal Proceedings) by providing legal services that included work not reasonably required to be carried out in the manner in which it was, or at all, and work for which he was not entitled to charge as he did, or at all, such that he increased or caused to be increased by a figure between 15 and 20 percent the proper costs of the Criminal Proceedings. Further, the practitioner did so in circumstances where:
a. he did not promptly inform the client of any circumstance likely to have a substantial affect on the amount or basis of calculation of the practitioner's costs; and
b. contrary to the terms of his costs agreement, he did not request the client credit his trust account with further funds when the funds he was holding on trust were fully utilised.
3 The parties were agreed that:
1. At all material times the practitioner:
1.1 was an Australian legal practitioner within the meaning of the Legal Profession Act 2008 (WA); and
1.2 practised as the director of Parkjoh Pty Ltd, an incorporated legal practice trading under the business name 'Park Legal Solutions' (PLS), until 14 November 2011; and
1.3 supervised Frances Hamlett (Ms Hamlett), a restricted practitioner employed by PLS.
2. On or about 13 February 2009 Ms MB (client) engaged the practitioner to represent her in respect to her defence to criminal charges in the District Court (Criminal Proceedings). At that time, the client informed the practitioner that the Criminal Proceedings were prepared for trial and the practitioner would simply need to continue to instruct Mr T Percy QC (Mr Percy) as counsel to appear at trial.
3. The Criminal Proceedings had proceeded to trial on a prior occasion; however, the trial had been vacated prior to jury empanelment. DG Price & Co had acted for the client as instructing solicitors, and had briefed Mr Percy as counsel from the inception of the Criminal Proceedings.
4. On or about 19 February 2009, the practitioner on behalf of PLS entered into a costs agreement with the client and her mother (client's mother) for the purposes of the practitioner acting as instructing solicitor in the Criminal Proceedings (Costs Agreement).
5. The Costs Agreement set out the following:
5.1 DG Price & Co could no longer act for the client due to a conflict of interest;
5.2 DNA results indicate that a male person had been in contact with the drugs the subject of the charges against the client;
5.3 standard rates for senior lawyers/consultants, articled clerks, paralegals and law clerks;
5.4 that the matter was estimated to cost between $15,000 and $25,000 plus Mr Percy's agreed fee to conduct the matters referred to in the scope of the Costs Agreement, including proceedings at a five day trial on the basis of the client's not guilty plea;
5.5 that the practitioner would have the primary conduct of the matter;
5.6 the client's mother would be responsible for the payment of the practitioner's fees;
5.7 if the client accepted the terms of the Costs Agreement she would arrange a transfer of $45,000 into PLS's trust account (PLS trust account);
5.8 if the trust funds were fully utilised PLS would request that further monies be deposited into the PLS trust account;
5.9 if PLS was required to remove itself as solicitors of record from any court action because of a conflict or the client not instructing PLS adequately or in a timely manner, then the client and the client's mother would bear the costs associated with that removal.
6. On 20 February 2009 DG Price & Co sent an electronic version of a proof of evidence prepared by DG Price & Co to the client, which comprised 33 pages and paragraphs numbered 1 to 278.
7. On or about 23 February 2009 a deposit was received into the PLS trust account of the sum of $34,766.50 from the DG Price & Co trust account on account of the client (Initial Trust Money).
8. On or about 3 March 2009 the client informed the practitioner that a bench warrant had been issued for her in relation to outstanding charges in the Magistrates Court of Western Australia (Magistrates Court Proceedings). The practitioner:
8.1 from 3 March 2009 advised the client about the Magistrates Court Proceedings;
8.2 On 23 March 2009 went on the record in the Magistrates Court Proceedings as the lawyer for the client.
9. The practitioner did not enter into a separate costs agreement with the client in relation to the Magistrates Court Proceedings.
10. By facsimile dated 1 April 2009, the practitioner requested that DG Price & Co email an electronic copy of the client's draft proof (draft proof). The draft proof was received by PLS by email on 2 April 2009 and was the same document as that referred to in paragraph 6 herein.
11. Under cover of letter to the client dated 24 April 2009, the practitioner rendered to the client's mother a tax invoice dated 23 April 2009 in the amount of $7,588.90 (23 April 2009 invoice) relating to the Criminal Proceedings and the Magistrates Court Proceedings and requested that the invoice amount of $7,588.90 be paid separately to and not from the Initial Trust Money, which is what then occurred.
12. On or about 5 May 2009, the client and/or the client's mother transferred the sum of $10,233.50 into the PLS trust account, bringing the total held by PLS on trust to $45,000 (Final Trust Money).
13. On 5 May 2009 the practitioner sent to the client a letter which stated:
'You have repeatedly promised to send to me your final proof of evidence (which you instructed me you preferred to do yourself and send to me). I have not received your proof of evidence.'
14. On 12 May 2009 Ms Hamlett telephoned the client and asked her to bring in her proof of evidence, explaining that trial preparation cannot begin without the firm having a signed copy of the proof of evidence, and left a further telephone message regarding her proof of evidence. Ms Hamlett then, on that day, signed a letter sent to the client on behalf of the practitioner, which was sent by email, and which stated:
'I confirm that in our discussion this morning, you said that you would deliver your Proof of Evidence to our office by this afternoon.
…
Despite our best efforts to obtain your signed Proof of Evidence from you, we still do not have it.'
'I further confirm we have made an appointment for you to meet with Mr Tom Percy and myself today at 3 pm. Please ensure you bring your signed Proof of Evidence to the meeting as it is essential for the preparation of your case.'
16. On 14 May 2009 at 5.49 pm the practitioner caused to be created a word version of the draft proof in the firm's Filepro document management system and amendments to the draft proof were made by someone using the practitioner's secretary's login, until 6.26 pm when the draft proof as amended was last printed. The client signed the draft proof as amended and dated it 14 May 2009 (signed proof). The signed proof comprised of 28 pages and paragraphs numbered 1 to 253.
17. On 18 and 19 May 2009 Ms Hamlett and the practitioner met with the client and an Addendum to the signed proof was prepared. The Addendum to the signed proof comprised 5 pages and paragraphs numbered 1 to 31. The signed proof and the Addendum together constitute the final proof of the client (final proof).
18. The trial for the Criminal Proceedings commenced in the District Court on 19 May 2009 and, although listed for five days, lasted eight days.
19. The client was acquitted of the more serious criminal charges and convicted on some minor charges. Her sentencing hearing was set down for 3 August 2009.
20. Under cover of letter dated 29 May 2009 addressed to both the client and the client's mother, the practitioner rendered to the client's mother a tax invoice dated 29 May 2009 in the amount of $65,328.90 (29 May 2009 invoice) relating to the Criminal Proceedings and the Magistrates Court Proceedings. Part payment of the 29 May 2009 Invoice was made by the Final Trust Money being transferred to PLS's general account, leaving a balance of $20,328.90 to be paid.
21. At no time prior to sending the 29 May 2009 Invoice to the client and the client's mother did the practitioner inform them that the costs of the Criminal Proceedings (defence costs) were likely to exceed the sum of the Final Trust Money nor did he request the PLS trust account be credited with further funds when the Final Trust Money was fully utilised.
22. Under cover of letter dated 3 June 2009 to PLS, Mr Percy rendered to PLS a tax invoice dated 3 June 2009 in the amount of $30,800 relating to work he completed in the Criminal Proceedings. When the invoice remained unpaid by PLS, Mr Percy contacted the client's mother directly and requested she pay his invoice immediately. The client's mother paid Mr Percy directly the sum of $30,800.
23. By letter dated 13 July 2009 sent to the client's mother the practitioner stated he would undertake no further work on the client's matter because the balance of the 29 May 2009 Invoice remained unpaid.
24. On or about 24 July 2009 the client and the client's mother terminated the practitioner's services.
25. On 7 January 2010, PLS rendered to the client a further invoice in the amount of $4,031.25 for work stated to have been undertaken between 12 May 2009 and 7 August 2009 (7 January 2010 invoice). The 7 January 2010 Invoice was not paid.
26. The practitioner did not at any time promptly inform the client and the client's mother of any circumstance likely to have a substantial [effect] on the amount or basis of calculation of the defence costs.
27. Following the employment by PLS of Ms Hamlett as a restricted practitioner after the Costs Agreement was entered into, the practitioner failed to amend the Costs Agreement to include a rate for Ms Hamlett as a restricted practitioner. Further, PLS did not enter into a separate costs agreement with the client and/or the client's mother in respect of the work to be done on behalf of the client in the Magistrates Court Proceedings.
28. The practitioner when taking over as solicitor with the conduct of the client's representation in the Criminal Proceedings, increased by a figure between 15 to 20 percent the proper defence costs of the Criminal Proceedings by reason of the practitioner undertaking and/or Ms Hamlett undertaking under the practitioner's supervision, legal work which included work not reasonably necessary and/or not appropriately charged for, namely:
28.1 work for which there was some duplication between the practitioner and Ms Hamlett, including where both attended at court or on the client on a number of occasions, and conferral between them, including Ms Hamlett briefing the practitioner at the end of each court day;
28.2 work in preparing detailed schedules in relation to the analysis of DNA evidence, which work was in excess of what was reasonably required as it included close examination of exculpatory (male) DNA evidence;
28.3 work performed of a clerical nature or where there was no legal aspect to the work, which was charged at a legal rate;
28.4 work performed after the retainer had been terminated, which was work done beyond that which was required to effect termination;
28.5 work performed by Ms Hamlett, a restricted practitioner, some of which was not reasonably necessary and all of which was charged above scale amounts in circumstances where the Costs Agreement did not include a rate for a restricted practitioner;
28.6 work performed in the Magistrates Court Proceedings was charged above scale in circumstances where there was no separate costs agreement in respect to that work.
29. On 2 March 2010, solicitors acting for the client and the client's mother caused an application to be filed commencing Supreme Court proceedings LPA 9 of 2010. As the 7 January 2010 invoice fell under a superseding Act, Supreme Court proceedings LPA 11 of 2010 were also commenced and a taxation as of right was granted (the two proceedings together forming the Costs Proceedings).
30. The practitioner instructed Ms Kathryn Roach (Ms Roach) in the Costs Proceedings. Ms Roach prepared a Bill of Costs for each of the two matters forming the Costs Proceedings.
31. On 17 and 18 May 2010, Ms Roach prepared drafts of an affidavit to be made by the practitioner in the Costs Proceedings relating to an application by the client and the client's mother to have the 23 April 2009 and 29 May 2009 Invoices taxed out of time. In doing so Ms Roach relied upon the practitioner's statements to her that the proof of evidence prepared by DG Price & Co was inadequate and that the practitioner had to prepare the proof of evidence almost in its entirety, which statements were made by the practitioner without having reviewed the client file and relying on his recollection of events that occurred at least 12 months prior.
32. On 17 May 2010 at around 3pm Ms Roach prepared the first draft affidavit (first draft affidavit) for the review of the practitioner, and the practitioner without having reviewed the client's file and relying on both his recollection of events that were at least 12 months prior and on the advice of Ms Roach who had reviewed the client's file:
32.1 read the first draft affidavit;
32.2 made handwritten amendments to the first draft affidavit and, in particular, at paragraph 9 where it stated 'DG Price had failed to prepare [the client's] proof of evidence which is the cornerstone of the preparations for a criminal hearing. My firm had to prepare that proof of evidence in its entirety', the practitioner recalled that the firm had not prepared the proof of evidence 'in its entirety' and therefore amended paragraph 9 to insert the word 'almost' before 'in its entirety'.
33. On 17 May 2010 at around 4.15pm Ms Roach prepared the second draft affidavit (second draft affidavit) in the Costs Proceedings which incorporated both the handwritten amendments made by the practitioner in the first draft affidavit and further amendments which were in addition to the practitioner's handwritten amendments as seen on the face of the first draft affidavit.
34. On 18 May 2010 at around 8:45am Ms Roach provided to the practitioner a further draft affidavit for his review which contained the amendments made in the second draft affidavit as well as further amendments additional to those already incorporated in the second draft affidavit (third draft affidavit).
35. The practitioner without having reviewed the client's file and relying on both his recollection of events that were at least 12 months prior and on the advice of Ms Roach who had reviewed the client's file:
35.1 read the third draft affidavit;
35.2 made handwritten amendments to the third draft affidavit (causing it to be the fourth draft affidavit (fourth draft affidavit));
35.3 read paragraph 9 in which it was stated that “DG Price & Co had failed to properly prepare [the client's] proof of evidence” and amended that to 'DG Price had not prepared [the client's] proof of evidence' and read where it was stated that 'my firm had to prepare the proof of evidence almost in its entirety' and made no amendments to that statement.
36. On 18 May 2010 the practitioner was provided by Ms Roach with the fifth draft affidavit (fifth draft affidavit), which contained his handwritten amendments to the fourth draft affidavit. The practitioner without having reviewed the client's file and relying on both his recollection of events that were at least 12 months prior and on the advice of Ms Roach who had reviewed the client's file:
36.1 read the fifth draft affidavit;
36.2 made handwritten amendments to the fifth draft affidavit;
36.3 read paragraph 9 which stated, inter alia, 'DG Price & Co had not prepared [the client's] proof of evidence … My firm had to prepare that proof of evidence almost in its entirety' and made no changes to that statement.
37. On 18 May 2010 the practitioner made his sworn affidavit in the Costs Proceedings in the Supreme Court (Practitioner's Affidavit) which contained the following two statements in paragraph 11:
• 'DG Price & Co had not prepared [the client's] proof of evidence'; and
• 'My firm had to prepare that proof of evidence almost in its entirety' (together, the Statements);
38. The Statements in the Practitioner's Affidavit were misleading and had the potential to mislead the Supreme Court as, in fact, the position was that:
38.1 the reference to '[the client's] proof of evidence' by the practitioner in the Statements was to the final proof;
38.2 prior to 20 February 2009 DG Price & Co had prepared the draft proof;
38.3 on 20 February 2009 DG Price & Co sent to the client an electronic version of the draft proof;
38.4 On 14 May 2009 at 5.49 pm the word version of the draft proof was created in the practitioner's Filepro document management system and amended by someone using the practitioner's secretary's login, until 6.26 pm when the draft proof as amended was last printed. The client signed the draft proof as amended and dated it 14 May 2009, and it became the signed proof.
38.5 On 18 and 19 May 2009 Ms Hamlett and the practitioner met with the client and an Addendum to the signed proof was then prepared and the signed proof and the Addendum together constituted the final proof; and
38.6 By reason of sub-paragraphs 38.1 to 38.5 (inclusive) above, the firm did not prepare the client's final proof 'almost in its entirety'.
39. The practitioner did not review PLS's file concerning the client's matter and relied on:
39.1 Ms Roach's review of the PLS file and advice to the practitioner provided in circumstances where Ms Roach relied upon the practitioner's statements to her that the proof of evidence prepared by DG Price & Co was inadequate and that the practitioner had to prepare the proof of evidence almost in its entirety, which statements were made by the practitioner without having reviewed the client file and relying on his recollection of events that occurred at least 12 months prior; and
39.2 his recollection at the time of making the Statements of the work completed by PLS at least one year prior to the making of the Statements, when making the Statements in circumstances where he made the amendments to the draft affidavits referred to in paragraphs 32, 35 and 36 herein based on his incorrect but not intentionally misleading belief as to the truth of the Statements. If the practitioner had reviewed the client's file he would have known that he and his firm had not prepared the client's final proof of evidence almost in its entirety and that the Statements were misleading and had the potential to mislead the Court.
40. The application of the client and the client's mother to have the invoices taxed out of time was granted on 21 June 2011.
41. The hearing for the Costs Proceedings commenced on 4 November 2011. The Costs Proceedings were adjourned to five other dates, with the final hearing date being 3 April 2012.
42. On 12 March 2012, during the course of the Costs Proceedings, the practitioner in sworn evidence confirmed the truth of the contents of the Practitioner's Affidavit, including the Statements, and the Practitioner's Affidavit formed the practitioner's evidence in chief.
43. In making the Statements in the Practitioner's Affidavit and confirming the truth of the Statements in sworn evidence, the practitioner acted with gross carelessness.
Penalties available
Legal framework and principles
4 The purposes of Pt 13 of the LP Act are, relevantly:
(a) to provide for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally; and
(b) to promote and enforce the professional standards, competence and honesty of the legal profession.
5 Sections 438(2) to 438(4) of the LP Act provide:
(2) If, after it has completed a hearing in relation to a referral under this Part in respect of an Australian legal practitioner, the State Administrative Tribunal is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may -
(a) make and transmit a report on the finding to the Supreme Court (full bench); or
(b) make any one or more of the orders specified in section 439, 440 and 441.
(3) If the State Administrative Tribunal transmits a report in respect of a legal practitioner to the Supreme Court (full bench) under subsection (2)(a), the Tribunal may, pending the determination of the Supreme Court (full bench), make the following orders
(a) an order that the Australian legal practitioner's local practising certificate be suspended for a specified period;
(b) an order that specified conditions be imposed on an Australian legal practitioner's local practising certificate restricting the entitlement of an Australian legal practitioner to practise for a specified period.
(4) Where appropriate, a report forwarded under subsection (2)(a) may include either or both of the following -
(a) a record of the evidence taken at the hearing;
(b) a recommendation that the name of the practitioner be removed from the local roll.
The State Administrative Tribunal may, under section 438(2)(b), make any one or more of the following orders
(a) an order that the practitioner’s local practising certificate be suspended for a specified period or cancelled;
(b) an order that a local practising certificate not be granted to the practitioner before the end of a specified period;
(c) an order that
(i) specified conditions be imposed on the practitioner’s practising certificate granted or to be granted under this Act; and
(ii) the conditions be imposed for a specified time; and
(iii) specifies the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed;
(d) an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner.
7 Section 441 of the LP Act provides:
The State Administrative Tribunal may, under section 438(2)(b), make any one or more of the following orders
(a) an order that the practitioner pay a fine to the Board of a specified amount not exceeding $25 000;
(b) an order that the practitioner undertake and complete a specified course of further legal education;
(c) a compensation order;
(d) an order that the complainant pay the amount of legal costs in dispute or that the amount of legal costs be reduced by a specified amount (not exceeding the amount in dispute);
(e) an order that the practitioner provide specified legal services to the complainant either free of charge or at a specified cost;
(f) an order that the practitioner undertake a specified period of practice under specified supervision;
(g) an order that the practitioner do or refrain from doing something in connection with the practice of law;
(h) an order that the practitioner’s practice, or the financial affairs of the practitioner or of the practitioner’s practice, be conducted for a specified period in a specified way or subject to specified conditions;
(i) an order that the practitioner’s practice be subject to periodic inspection for a specified period;
(j) an order that the practitioner undergo counselling or medical treatment or act in accordance with medical advice given to the practitioner;
(k) an order that the practitioner use the services of an accountant or other financial specialist in connection with the practitioner’s practice;
(l) an order that the practitioner seek advice in relation to the management of the practitioner’s practice from a specified person;
(m) an order that the practitioner not apply for a local practising certificate before the end of a specified period.
Submissions as to the appropriate penalty
8 The parties agreed on a penalty for the Tribunal's consideration, namely:
(a) The practitioner is reprimanded pursuant to section 439(d) of the Act.
(b) The practitioner is to pay a fine in the sum of $12,000 pursuant to sections 438(2)(b) and 441(a) of the Act.
(c) The practitioner is to pay the Committee's costs pursuant to section 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in the sum of $20,000;
(d) The amounts specified in orders (b) and (c) be paid to the Legal Practice Board within 30 days, or as otherwise agreed between the practitioner and the Legal Practice Board.
9 The Tribunal was not satisfied that the agreed outcome reflected adequate penalty and required the parties to make submissions as to penalty.
Disciplinary sanctions general principles
10 The jurisdiction of the Tribunal is protective rather than punitive, and such protection runs to both the public and the profession (Re Maraj (a Legal Practitioner) (1995) 15 WAR 12 at 25); Legal Profession Complaints Committee v Love [2014] WASC 389 (Love) at [19]; Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 (Foreman) at 440G441AB; Legal Profession Complaints Committee and in de Braekt [2013] WASAT 124 (in de Braekt) at [24][26]; New South Wales Bar Association v Hamman [1999] NSWCA 404 (Hamman) at [21] and at [77]).
11 The appropriate sanction is to be considered at the time of the making of the sanction and not by reference to the date of the unprofessional acts (Legal Profession Complaints Committee and ALegal Practitioner [2013] WASAT 37 (S) (A Legal Practitioner (S)) at [23]; Legal Profession Complaints Committee v Segler [2014]WASC159 at [7]; A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253 (A Solicitor [2004] NSW) at [15]; Love at [16]).
12 It is the practitioner's conduct that attracts any sanction (A Legal Practitioner (S) at [24]; Smith v New South Wales Bar Association [2014] WASAT 112 (S); [1992] HCA 36; (1992) 176 CLR 256 at 267268 and 271272; ASolicitor [2004] NSW).
13 As the Tribunal explained in A Legal Practitioner (S) at [24]:
[I]n determining the appropriate penalty, care needs to be taken that the penalty reflects the matters with which the practitioner is charged and not other conduct including the defence of the action by the practitioner which is ultimately held to be unsuccessful: Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 (Smith) at 267 - 268 and 271 - 272[.]
14 Where there is a choice of sanctions, the Tribunal will choose that sanction which maximises the protection of the public (Quinn v Law Institute of Victoria[2007] VSCA 122 at [31]).
15 The dominant purpose of the disciplinary regulation of the legal profession is the protection of the public by the maintenance of proper standards within the profession. Hence, the impact which an appropriate penalty would have upon a practitioner guilty of misconduct, and personal hardship to a practitioner, are necessarily secondary considerations (see Legal Profession Complaints Committee v Detata [2012] WASCA 2014 at [47]; Legal Profession ComplaintsCommittee v Masten [2011] WASC 71 at [29]; and Legal Profession ComplaintsCommittee and Leask [2010] WASAT 133 at[54]).
16 There are circumstances in which a 'global' approach to sanction, rather than the imposition of separate sanction for each unprofessional act, may be more appropriate in vocational disciplinary proceedings namely, where the facts of the case are so inextricably woven as to make it difficult to meet a clear standard of prescription (A Legal Practitioner (S) at [5]; Stirling v Legal Services Commissioner [2013] VSCA 374 at [72][75]).
Removal from the Roll
17 The jurisdiction of the Tribunal to remove a practitioner from the Roll is exercised not for the purpose of punishing the practitioner concerned, but for the protection of the public and the reputation and standards of the legal profession: Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 at [43].
18 Where an order for removal from the Roll is contemplated, the ultimate question is whether the material demonstrates that the practitioner is not a fit and proper person to remain a legal practitioner: ASolicitor [2004] NSW at [15].
19 A practitioner is not a fit and proper person to be a registered practitioner and should be removed from the register where the unprofessional conduct is so serious that the practitioner is permanently or indefinitely unfit to practise (Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159at [27]; Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 at [38]; Love at [17]-[18]; A Legal Practitioner (S) at [21]-[25]; Legal Profession Complaints Committee v Brickhill [2013] WASC 369 at [19]-[20] (Thomas JA, McMurdo P and White J agreeing); New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [26]-[28]); Love at [17]-[18]).
20 Although serious dishonesty is an obvious example of where removal from the Roll is appropriate (Love at [18]), removal is not necessarily confined to circumstances involving findings of dishonesty.
21 In Lashansky at [36], the Full Court stated:
… Hope JA observed, [in Law Society of New South Wales v Moulton [1981] 2 NSWLR 736] the ignorance which the practitioner displayed was not ignorance of some esoteric or difficult corner of the law, but was an ignorance of general principles applicable to common activities of a solicitor (at 741). Hope JA concluded that '[s]uch an unawareness of and lack of care about the most elementary propositions of law concerning the responsibility he had taken on and the standards required of solicitors are themselves sufficient to justify the protection of the public by his removal from the roll' (at 743, Reynolds JA agreeing, and see Hutley JA at 759).
22 The practical effect of an order striking a practitioner off the roll is that if a practitioner wishes to resume practice he/she must persuade the Full Court that he/she is truly reformed and that he/she is a fit and proper person to resume practice.
Suspension
23 Suspension is a less serious result and differs from removal from the Roll because suspension is for a specified limited period and the practitioner has a preserved right to resume practice without any further onus upon them to prove that they are a fit and proper person to practice (A Legal Practitioner (S) at [26]; Legal Profession Complaints Committee v Pepe [2009]WASC39 at [12])
24 The proper use of suspension is in cases where the practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he/she lacks the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a practitioner (A Legal Practitioner (S) at [26]; ReAPractitioner (1984) 36 SASR 590 at 593 per King CJ). That is, suspension is suitable where the Tribunal is satisfied that, upon completion of the period of suspension, the practitioner will be fit to resume practice (A Legal Practitioner (S) at [27]).
25 The practical effect of an order suspending a practitioner's registration is that at the end of the period of suspension, the practitioner is entitled to resume practice without having to prove to the Full Court that he/she is a fit and proper person.
Twelve matters for consideration
26 In determining an appropriate sanction, twelve matters may require consideration. Those matters are interrelated and are not mutually exclusive. The list of matters is not exhaustive. The twelve matters are:
1) Any need to protect the public against further misconduct by the practitioner (Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S) (Amsden (S)) at [8]; Foreman at 440C; Hamman at [77]).
2) The need to protect the public through general deterrence of other practitioners from similar conduct (Veterinary Practitioners Board of NSW v Johnson [2010] NSWADT 308 (Johnson) at [103]; Hamman at [77]).
3) The need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions and thereby articulating the high standards expected of the profession (Amsden (S)) at [8]; Foreman at 444F; and Hamman at [77] and [79]), such that, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval (Craig v The Medical Board of South Australia [2001] SASC 169 at [64]; Johnson at [103]).
4) In the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner (Johnson at [109]; Foreman at 445B 445G).
5) Whether the practitioner has breached any:
a) Act;
b) Regulations;
c) Guidelines or Code of Conduct, issued by the relevant professional body; and
d) whether the practitioner has done so knowingly.
6) Whether the practitioner's conduct demonstrated incompetence, and if so, to what level.
7) Whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future (Foreman at 442E - 442G; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183; Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62 at [80]; Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54 at 62 and 63).
8) The practitioner's disciplinary history (Legal Profession Complaints Committee v O'Halloran [2013] WASC 430 at [93]);
9) Whether or not the practitioner understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the practitioner, since a practitioner who fails to understand the significance and consequences of misconduct is a risk to the community (Law Society of New South Wales v Walsh [1997] NSWCA 185 per Beazley JJA (Walsh); Legal Profession Complaints Committee v Lashansky [2007] WASC 211 (Lashansky) at [31]-[52] and (second) at [35]; Amsden (S) at [8]; Foreman at 444E; Love at [9]).
10) The desirability of making available to the public any special skills possessed by the practitioner.
11) The practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of legal practice (Love at [59]); Paridis v Settlement Agents Supervisory Board[2007] WASCA 97; (2007) 33 WAR 361 (Paridis) at [30(5)]).
12) The Tribunal may consider any other matters relevant to the practitioner's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness (A Legal Practitioner (S) at [25]). In general, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive (Walsh).
The seriousness of Mr Park's conduct
Gross carelessness
27 Courts and tribunals rely heavily on practitioners in reaching their decisions.
28 Practitioners must be scrupulously honest and accurate.
29 Misleading conduct may be dishonest, reckless or careless. The end result of misleading conduct is that a court may not reach a proper decision. Dishonest conduct is obviously the most serious.
30 Deliberately misleading a court or tribunal has a potentially corrosive effect on the administration of justice because the court or tribunal may proceed on an incorrect basis. Carelessly misleading a court or tribunal has the same potentially corrosive effect on the administration of justice because the court or tribunal may proceed on an incorrect basis. It is therefore imperative that practitioners ensure that evidence presented to the court is accurate. This is particularly so where it is their own evidence. The fact that a court or tribunal may not actually be misled does not reduce the seriousness of misleading conduct.
31 In Legal Profession Complaints Committee and Bower [2017] WASAT 47, in relation to dishonest conduct, the Tribunal stated at [15]:
In Legal Profession Complaints Committee and Barber [2015] WASAT 99 at [26][27], the Tribunal accepted the Committee's submissions as to the principles in relation to a practitioner's duty of disclosure. These are set out below:
Nevertheless, it is a basic precept of the legal profession that lawyers owe a duty of honesty and candor to the court. It is the general duty of lawyers not to mislead the court by stating facts which are untrue, or mislead the judge as to the true facts, or conceal from the court facts which ought to be drawn to the judge's attention, or knowingly permit a client to deceive the court: Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190 at 193; Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56 at [6], [12], [13], [23], [66] - [67]; Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 at [61]; Giudice v Legal Profession Complaints Committee [2014] WASCA 115 at [100].
The duty not to mislead the court is of fundamental importance in the due administration of justice, and is paramount and overrides any duty to the client: Kyle v Legal Practitioners Complaints Committee (supra) at [19], [23], [66].
It is a breach of that duty for a lawyer to produce a witness statement that the lawyer knows to be false or if the lawyer knows that the witness does not believe the statement to be true in all respects. The duty to correct a false witness statement continues after it is filed. Kyle v Legal Practitioners Complaints Committee (supra) at [13], [23].
Although expressed in terms of a duty to the 'court', there is no question that duty applies with equal force to proceedings in the Tribunal: see eg Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at 200 (see also definition of 'court' in the Professional Conduct Rules in force at the relevant time).
The duty not to 'mislead' the court or tribunal is not limited to positive lies or misstatements. Half-truths, implying a false state of affairs, the creating of a misleading impression, or allowing the client to mislead the court will also be a breach of the duty: Kyle v Legal Practitioners Complaints Committee (supra) at [12], [23]; Vogt v Legal Practitioners Complaints Committee (supra) at [48]; Forster v Legal Services Board [2013] VSCA 73 at [161].
A practitioner's duty is not merely to not deceive the court or tribunal. He or she must be fully frank in what he or she does before it. This obligation takes precedence over the practitioner's duty to the client, to other practitioners and to himself or herself: Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 447.
Similarly, In Re Thom (1918) 18 SR (NSW) 70, Cullen CJ (with whom the other two members of the Full Court agreed) said (at 74 75):
'It is of the greatest importance than any mere casuistry in the presentation of evidence should be strictly avoided by those entrusted with the responsible duties of a legal practitioner. It is perhaps easy by casuistical reasoning to reconcile one's mind to a statement that is in fact misleading by considering that the deponent is not under any obligation to make a complete disclosure. By this means a practitioner may be led into presenting a statement of fact which, although it may not be capable of being pronounced directly untrue in one particular or another, still presents a body of information that is misleading, and conceals from the mind of the tribunal the true state of facts which the deponent is professing to place before it. For that reason it is proper on such an occasion as this to express condemnation of any such casuistical paltering with the exact truth of the case.'
[T]he concept of gross carelessness involves unacceptable conduct without any intentional wrong doing on the part of the practitioner. It also suggests that the practitioner is unable to give the care required or is indifferent to the need for such care notwithstanding that he may have the intellectual and technical ability to supply the care that is required.
…
[T]he concept of 'carelessness' may not be endemic to the practitioner's affairs generally. It may be limited to individual, perhaps sporadic, incidents[.]
33 In A Practitioner v The Medical Board of Western Australia [2005] WASC 198 at [88], Justice Kenneth Martin, then siting as a Commissioner, stated:
[I] reiterate that where appropriate, a finding of improper conduct of a serious enough kind, or indeed even gross carelessness of a serious enough kind, may well justify the most severe disciplinary sanction[.]
34 The information contained in Mr Park's affidavit related to events that occurred in about May 2009. A first draft of Mr Park's affidavit in relation to the taxations of costs was provided to him on 17 May 2010, that is, 12 months later.
35 The need to check the contents of his or her draft affidavit against his or her file would be obvious to an articled clerk on his or her first day of employment. Remarkably, for a practitioner of 17 years' experience, Mr Park failed to do that.
36 Mr Park's stated reason for his failure to check the contents of the draft affidavit against the file was that 'I had no doubt and was not in any way uncertain as to my belief about the accuracy of the matters to which I deposed' (Exhibit A paragraph 38). It is incomprehensible that a practitioner could have no doubt about the events that occurred 12 months ago relating to the preparation of a witness statement without checking the file. If Mr Park or any competent practitioner was crossexamining a witness about a document prepared 12 months ago, the question would have to be to the effect of 'How do you remember; did you check the file?'.
37 Mr Park received five drafts of the affidavit. He made handwritten alterations to a number of paragraphs in those drafts. He turned his mind specifically to the preparation of the proof of evidence because he inserted the word 'almost' before 'in its entirety' in paragraph 9 of the first draft affidavit.
38 The number of drafts gave Mr Park ample opportunity to state the facts accurately and to check the file.
39 Nearly two years after swearing his affidavit on 18 May 2010, on 12 March 2012, Mr Park, in sworn oral evidence to the Supreme Court on the taxation of his costs, confirmed the contents of the affidavit. The events about which Mr Park gave sworn oral evidence had occurred nearly three years ago. Mr Park's carelessness in checking the facts is inexplicable. Mr Park's evidence to the Tribunal was that he received 'no prior warning that he might need to attend at the hearing to give oral evidence'. Surely that required Mr Park to take particular care in giving evidence under oath. That evidence was misleading and had the potential to mislead the Court, with the result that Mr Park may have been awarded costs which were more than the costs which would otherwise have been awarded.
Overcharging
40 Practitioners occupy a privileged position in our society. The LP Act imposes significant restrictions on who may hold themselves out as legal practitioners. They are not subject to the same open market forces that other people face. With that privilege comes responsibility.
41 Particularly in criminal cases, the client and the person paying the bill, who is often another member of the family, are under stress and vulnerable. Laws and regulations relating to costs are designed to ensure the clients are aware as much as possible of their liability.
42 Overcharging by practitioners is all too often the subject of articles in the media. Overcharging damages the reputation of the profession and reduces public confidence in the profession.
43 Overcharging is serious. Overcharging by 15% to 20% of the proper costs of the criminal proceedings is very serious. A failure to comply with the requirements for charging is very serious.
Analysis of factors
Factor 1 Is there a need to protect the public against further misconduct by Mr Park?
44 A significant factor in determining any penalty is the risk of further misconduct. The conduct occurred between five and eight years ago. Mr Park has not transgressed since. The Tribunal is satisfied that there is a low risk of further misconduct by Mr Park.
Factor 2 Is there a need to protect the public through general deterrence of other practitioners?
45 As stated above, Mr Park's conduct was very serious. In both cases, there is a need to protect the public through general deterrence of other practitioners. Practitioners must be deterred from gross carelessness and overcharging for the reasons stated above.
Factor 3 Is there a need to protect the public by reinforcing high professional standards and denouncing transgressions?
46 In the circumstances of this matter, the need for high professional standards must be reinforced. Transgressions must be denounced in order to preserve public confidence in the profession.
Factor 4 Dishonesty
47 There is no finding of dishonesty.
Factor 5 Breach of an Act, Regulations, Guidelines or Code of Conduct
48 Mr Park breached r 2(b), r 7(h) and r 18(3) of the Legal Profession Conduct Rules 2010 (WA)
Factor 6 Incompetence
49 Mr Park's failure to check the contents of his affidavit against the file demonstrates incompetence.
Factor 7 Was the incident isolated?
50 The practitioner's conduct occurred within the circumstances of a single retainer.
51 However, there were two separate components of that conduct. Firstly, there was the unsatisfactory professional conduct between 13 February 2009 and 7 January 2010 which increased the proper costs of the criminal proceedings between 15% to 20%. Secondly, there was the professional misconduct between 18 May 2010 and 12 March 2012 by giving misleading evidence to the Supreme Court in the costs proceeding.
Factor 8 Mr Park's disciplinary history
52 The practitioner does not have any disciplinary history in the Tribunal.
Factor 9 Whether or not Mr Park understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by Mr Park
53 By agreeing to Order 1 of the 20 April Minute around that date and by earlier agreeing to Order 2 around 19 January 2017, the practitioner has (albeit belatedly) demonstrated insight into his conduct, thereby avoiding the need for a potentially lengthy and costly hearing in the Tribunal.
Factor 10 Are there any special skills possessed by Mr Park?
54 Mr Park does not have any special skills.
Factor 11 Mr Park's personal circumstances
55 Mr Park's personal circumstances do not impact on the penalty.
Factor 12 Are there any other matters related to Mr Park's fitness to practise?
56 There are no other factors related to Mr Park's fitness to practise.
References
In Lawyers' Professional Responsibility (6th ed, 2017), Professor G E Dal Pont wrote at pages 777778:
- For testimonials to assume any weight, they must be based on a detailed understanding of the conduct that occurred, and informed by a full appreciation of the lawyer's methods, not by opinions based upon a view from days past (Re Melvey (1966) 85 WN (Ft 1) (NSW) 289 at 298 (CA). Cf Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320 at [14], per Young CJ in Eq (who remarked that '[i]t was pleasing to see that in contrast with many cases of this type each of the character referees appears to have been made fully aware, of all the relevant facts and circumstances of the opponent's offence'). Testimonials that disregard known facts, or downplay the seriousness of the misconduct, indicate a diminished capacity to give convincing evidence of good character (Re Bridgman [1934] St R Qd 1 at 7 per Blair CJ; Re Nelson (1991) 106 ACTR 1 at 24 per Higgins and Foster JJ) and so attract little weight. Nor is evidence from a non-legally qualified deponent of great value, for 'it is one thing to speak well of a man whom the deponent has met in social or business circles; it is another to speak of him as to his professional dealings' (Re Melvey (1966) 85 WN (Ft 1) (NSW) 289 at 298 (CA)). Third parties' opinions cannot, in any event, be substituted for the opinion of the tribunal or court (Re Bridgman [1934] St R Qd 1 at 7 per Blair CJ).
Evidence of the lawyer's good reputation and integrity carries greatest weight where the breach is a minor and isolated one, here presenting a compelling case that the lawyer's character as revealed by the breach is entirely out of character (Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 444 per Mahoney JA). …
The position is otherwise where the breach is more serious, and especially where it involves repeated dishonesty (Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 448-449 per Mahoney JA. The cases most commonly concerned fraudulent trust account misappropriations: see, for example, Re a Practitioner (1984) 36 SASR 590 at 592 per King CJ, at 593 per Jacobs J; Re Nelson (1991) 106 ACTR 1 at 24 per Higgins and Foster JJ) here, character evidence carries far less weight because a serious breach, and breaches that are repeated, are difficult to explain as other than indicative of a lack of integrity[.]
The Tribunal adopts Professor Dal Pont's writing as a correct statement of the law relating to testimonials/references.
The Tribunal has read the three references provided and has taken them into account.
Penalty
57 The facts of the gross carelessness and the overcharging are not intertwined. A global penalty is not appropriate. Although the conduct occurred within a single retainer, as stated above, there were two separate components of that conduct. It is important that the Tribunal makes clear to the public and the legal profession what the penalty is for each of those courses of behaviour.
58 The Tribunal has determined that in the case of Mr Park's gross carelessness neither cancellation nor suspension is appropriate. In order to reflect the seriousness of Mr Park's conduct, an appropriate fine is $15,000.
59 The Tribunal has determined that in the case of Mr Park's overcharging neither cancellation nor suspension is appropriate. In order to reflect the seriousness of Mr Park's conduct, an appropriate fine is $7,500.
60 Mr Park's total fine is therefore $22,500.
Costs
61 Mr Park has agreed to pay the Committee's costs fixed at $20,000.
Orders
1. The practitioner is reprimanded pursuant to s 439(d) of the Legal Profession Act 2008 (WA).
2. The practitioner is to pay a fine of $22,500 pursuant to s 438(2)(b) and s 441 (a) of the Legal Profession Act 2008 (WA).
3. The practitioner is to pay the Legal Profession Complaints Committee's costs of $20,000 pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA).
4. The amounts specified in orders 1 and 2 be paid to the Legal Practice Board within 30 days of the date of this order, or as otherwise agreed between the practitioner and the Legal Practice Board.
I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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