LEGAL PROFESSION COMPLAINTS COMMITTEE and SEGLER
[2013] WASAT 117
•2 AUGUST 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: LEGAL PROFESSION COMPLAINTS COMMITTEE and SEGLER [2013] WASAT 117
MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
MS F CHILD (MEMBER)
MR C PHILLIPS (SENIOR SESSIONAL MEMBER)
HEARD: 17, 18 AND 19 APRIL 2013
WRITTEN SUBMISSIONS
29 APRIL 2013
DELIVERED : 2 AUGUST 2013
FILE NO/S: VR 43 of 2012
BETWEEN: LEGAL PROFESSION COMPLAINTS COMMITTEE
Applicant
AND
MARTIN LEE SEGLER
Respondent
Catchwords:
Legal practitioner - Professional misconduct - Unsatisfactory professional conduct - Failure to pay trust money into a trust account - Failure to carry out work or adequate work - Failure to account for money received - Failure to reach or maintain a reasonable standard of competence and diligence - Failure to respond to correspondence from another legal practitioner - Misleading or attempting to mislead the Court - Failure to respond to enquiries of the Complaints Committee
Legislation:
Family Law Amendment Rules 2005 (No.2) (Cth), r 10.01
Family Law Rules 2004 (Cth), Div 10.1.2
Legal Practice Act 2003 (WA), s 3, s 137
Legal Profession Act 2008 (WA), s 4(a), s 205(1), s 215, s 215(2), s 402, s 403, s 404, s 406, s 442, s 520(1), s 622(2)
Legal Profession Conduct Rules 2010 (WA)
Result:
Findings of professional misconduct in relation to some of the allegations
Summary of Tribunal's decision:
The Legal Profession Complaints Committee alleged that Martin Lee Segler engaged in professional misconduct by:
- failing to pay trust money into a trust account;
- failing to carry out work or adequate work which he had agreed to do
for clients;
- failing to account for money received;
- failing to reach or maintain a reasonable standard of competence and
diligence that a member of the public is entitled to expect of a
reasonably competent Australian practitioner;
- failing to respond or adequately respond to correspondence from
another legal practitioner;
- misleading or attempting to mislead the Court in a family law dispute;
- failing to clearly indicate a pending trial date to a client's new solicitor;
- failing to meet with a client after judgment was entered against the
client in a criminal matter;
- failing to respond to the Complaints Committee's enquiries; and
- failing to properly notify clients of his retirement from practice in
May 2010.
The Tribunal considered these allegations and the grounds for them. It concluded that the practitioner was guilty of professional misconduct by:
- failing to pay trust money into a trust account;
- misleading or attempting to mislead the Court;
- one count of failing to reach or maintain a reasonable standard of
competence and diligence; and
- failing to respond to the Complaints Committee's enquiries and summonses.
The Tribunal concluded that the remaining allegations had not been established.
Category: B
Representation:
Counsel:
Applicant: Ms R Fogliani
Respondent: In person
Solicitors:
Applicant: Legal Profession Complaints Committee
Respondent: N/A
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115
Legal Profession Complaints Committee and LeeSteere [2010] WASAT 189
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
The Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198
REASONS FOR DECISION OF THE TRIBUNAL:
The respondent (Practitioner) at all relevant times was an Australian lawyer as defined under s 4(a) of the Legal Profession Act 2008 (WA) (Legal Profession Act). On 10 May 2010 he was suspended from practising for three months and closed his practice. Since then, he has not practised and has not held a practising certificate.
During the relevant period the Practitioner practised as a sole practitioner and latterly as a legal practitioner director of an incorporated legal practice named Segler Enterprises Pty Ltd.
In an application dated 13 March 2012, the Legal Profession Complaints Committee (Committee) brought a number of complaints of professional misconduct or unsatisfactory professional conduct against the Practitioner. The conduct complained about occurred between August 2007 and March 2011.
Applicable legislation
The provisions of the Legal Practice Act 2003 (WA) (2003 Act) were in force until 1 March 2009, when the Legal Profession Act commenced operation. Under s 622(2) of the Legal Profession Act, the Legal Profession Act applies to conduct consisting of a contravention of the 2003 Act as if the conduct consisted of a contravention of the Legal Profession Act.
Under s 406 of the Legal Profession Act, Pt 13 of the Legal Profession Act (complaints and discipline) applies to former Australian legal practitioners in relation to conduct occurring when they were Australian legal practitioners. Also, under the same section, Pt 13 applies to Australian lawyers in relation to conduct occurring while they were Australian lawyers, but not Australian legal practitioners.
Accordingly the Legal Profession Act applies to the Practitioner and to the alleged conduct the subject of the Committee's application.
Professional misconduct and unsatisfactory professional conduct under the Legal Profession Act
The Committee alleges that the Practitioner engaged in 'unsatisfactory professional conduct' or 'professional misconduct', being terms used and defined in the Legal Profession Act. The term 'unsatisfactory professional conduct' is defined in s 402 of the Legal Profession Act to include conduct that 'falls 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'. The term 'professional misconduct' is defined in s 403 as including 'unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence' and 'conduct … whether occurring in connection with the practice of the law or occurring otherwise … that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice'.
Section 404 of the Legal Profession Act gives instances of conduct capable of constituting unsatisfactory professional conduct or professional misconduct. These include such matters as a contravention of the Legal Profession Act, failure to comply with an order of the Committee and charging excessive legal costs.
It should be noted that the definitions of 'professional misconduct' and 'unsatisfactory professional conduct' are expressed as inclusory only. It is clear from the Legal Profession Act that the references to competence and diligence and the examples given in s 404 are not intended to cover all instances of unprofessional conduct. The common law notion of unprofessional conduct, based upon the standards of members of the profession, is intended to continue, but, depending on the seriousness of the matter, to be classified under the Legal Profession Act as either 'unsatisfactory professional conduct' or 'professional misconduct'. It follows that the more serious form of unprofessional conduct (that which is regarded as disgraceful or dishonourable) will likely fall under the more serious statutory form of professional misconduct. The less serious form of unprofessional conduct (that which to a substantial degree falls short of the standards of the profession) will likely fall under the less serious statutory form of unsatisfactory professional conduct.
Legal profession rules, such as the Professional Conduct Rules issued by the Law Society of Western Australia and, latterly, the Legal Profession Conduct Rules 2010 (WA) provide a guide as to what is regarded in Western Australia as proper professional behaviour. A breach of these rules could constitute either unsatisfactory professional conduct or professional misconduct, again depending on whether the breach concerned represents behaviour falling short of the standards of the profession or whether the behaviour concerned is regarded as disgraceful or dishonourable.
What the Committee must show to the Tribunal is:
a)the nature of the charge which it is making against the Practitioner and the evidence which supports that charge;
b)the relevant conduct rules or practice governing the matter;
c)the extent to which there has been a departure from those rules or that practice; and
d)whether in all the circumstances the Practitioner's conduct may be said to constitute unsatisfactory professional conduct or professional misconduct.
The standard of proof
The standard of proof which the Committee must meet in proving its case is the civil standard, namely proof on the balance of probabilities. However, in determining whether on the evidence this standard has been satisfied, the Tribunal will recognise that 'the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal'; Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) at [362].
As the High Court expressed the position in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, the significance of Briginshaw is that the seriousness of the matter and of its consequences does not affect the standard of proof, but goes to the strength of the evidence necessary to establish a fact required to meet that standard.
Allegations of professional misconduct are undoubtedly serious, thus it is considered in proceedings such as these that the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts before being satisfied that an allegation has been made out.
In this case, some of the events relied upon by the Committee extend back some five or six years. To the extent that proof is established by reference to documents, this delay may be of little consequence. However, when the issue is dependent on the Practitioner's recall of events and witnesses' recall of the same events, some allowance must be made for the inevitable effect of such delay upon those parties' ability to recall those matters and the accuracy of their recall.
The Practitioner's records
In the Practitioner's Witness Statement dated 15 April 2013, the Practitioner explained his record keeping system during the later years of his practice.
He says that he administered the operation of his legal practice through his two computers. On his desktop computer he maintained legal practice folders upon which he kept copies of, for example, the terms of retainer and agreement as to costs documents, receipts of money paid, tax invoices issued, along with all of his correspondence, court documents and 'Documents downloaded from legal databases which were pertinent to my instruction and the case I was to present'.
The Practitioner also maintained a second computer, being a laptop. On that, he maintained a 'running schedule' of his work, which he operated through a software application known as 'iBiz'. He said that the desktop computer and the laptop computer did not share the iBiz programme and he could only access that programme through the laptop computer.
In the Practitioner's Book, he includes documents which he says he was able to retrieve electronically through the desktop computer or from records in hard copy physically retained by him.
The Practitioner then goes on to say that in or around June 2010, he ceased paying his subscription to the iBiz software programme but had not appreciated that by so doing he lost all access to the records of his work performed. He then says that the hard drive of the laptop computer failed around the same time and therefore he has no record whatsoever of whatever data had been stored on that computer.
The Committee does not contest any of these facts.
While this explains the lack of documentation in support of some of the Practitioner's responses, it does not explain why the documents which the Practitioner did have were only filed on 18 February 2013, which in turn required the Committee to amend some of its allegations. We refer again to these amendments later in these reasons.
The hearing
The hearing of this matter took place on 17, 18 and 19 April 2013. At the hearing, the Committee tendered a book of documents (Committee's Book) and a supplementary book of documents (Committee's Supplementary Book). The Practitioner filed a written response to the Committee's allegations (Practitioner's Response) and his own book of documents dated 15 April 2013 (Practitioner's Book).
The Committee then filed a number of witness statements to which we will refer as we deal with each complaint. The Practitioner also filed his own witness statement (Practitioner's Witness Statement).
The complaints against the Practitioner
The complaints against the Practitioner and the grounds upon which the Committee relies for alleging professional misconduct or unsatisfactory professional conduct, as the case may be, by the Practitioner are set out in the Committee's application in substantially the following terms:
Complaint 1
The Practitioner engaged in professional misconduct in the course of acting for his client, Ms Josette Hamilton (Ms Hamilton), by:
(a)on various dates between 9 August 2007 and 22 January 2009, failing to deposit trust moneys, as defined in s 3 of the 2003 Act, that he had received from Ms Hamilton to the credit of his trust account as required by s 137 of the 2003 Act, and
(b)on various dates between 13 March 2009 and 6 April 2009, failing to deposit trust money, as defined in s 205(l) of the Legal Profession Act, that he had received from Ms Hamilton to the credit of his trust account as required by s 215(2) of the Legal Profession Act.
Complaint 2
The Practitioner engaged in professional misconduct in the course of acting for his client, Mr Hase Basagic (Mr Basagic), by:
(a)on or about 25 February 2008 failing to deposit trust moneys, as defined in s 3 of the 2003 Act, in the sum of $3,500 that he had received from Mr Basagic to the credit of his trust account as required by s 137 of the 2003 Act; and
(b)between 25 February 2008 and 10 May 2010:
(i)failing to carry out work for Mr Basagic which he had agreed to do; and
(ii)failing to account to Mr Basagic for the monies received from him and retained by the Practitioner for work to be performed by the Practitioner; and
(c)failing to notify Mr Basagic that he had ceased to act for him from or about 10 May 2010.
Complaint 3
The Practitioner engaged in professional misconduct in the course of acting for his client, Mr Lazo Glusica (Mr Glusica), by:
(a)on or about 28 March 2008 failing to deposit trust moneys, as defined in s 3 of the 2003 Act, in the sum of $5,000 that he had received from Mr Glusica to the credit of his trust account as required by s 137 of the 2003 Act;
(b)between 28 March 2008 and 10 May 2010:
(i)failing to carry out work for Mr Glusica which he had agreed to do; and
(ii)failing to account to Mr Glusica for the moneys received from him and retained by the Practitioner for work to be performed by the Practitioner; and
(c)between 13 May 2008 and 1 May 2009 in the course of acting on behalf of Mr Glusica in relation to Supreme Court action number CIV 1511 of 2008 substantially or consistently failing to reach or maintain a reasonable standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
Complaint 4
The Practitioner engaged in professional misconduct in the course of acting for his client, Ms Edith Julia Mateljan (Ms Mateljan), in Family Court (Family Court) proceedings PTW 3210/2008 (Mateljan proceedings) by:
(a)between 13 September 2008 and 29 September 2009 repeatedly failing to respond or to adequately respond to correspondence from the legal practitioner representing Ms Mateljan's de facto husband who was the applicant in the Mateljan proceedings;
(b)on 11 May 2009, intentionally, alternatively recklessly, misleading or attempting to mislead the court by informing Her Honour Justice Crisford that:
(i) disclosure of certain documents had been made;
(ii)a valuation of the family home had been made by a valuer agreed by both parties to the Mateljan proceedings; and/or
(iii) neither party had made an offer of settlement;
when he knew or ought to have known that these submissions were not correct and were misleading, or had reckless disregard as to whether they were correct and misleading; and
(c)following termination of his retainer, providing the client file of Ms Mateljan to other solicitors, namely Marks & Sands, without clearly indicating to Marks & Sands that a trial was listed to be heard in the Family Court on 26 July 2010.
Complaint 5
The Practitioner engaged in professional misconduct in the course of acting for his client, Mr Ralph Condelli (Mr Condelli), by:
(a)on 14 January 2009 failing to deposit trust moneys, as defined in s 3 of the 2003 Act, the sum of $3,185 that he had received from Mr Condelli to the credit of his trust account as required by s 137 of the 2003 Act.
(b)between 14 January 2009 and 10 May 2010:
(i)failing to carry out work for Mr Condelli which he had agreed to do; and
(ii)to account to Mr Condelli for the moneys received from him and retained by the Practitioner for work to be performed by the Practitioner.
Complaint 6
The Practitioner engaged in professional misconduct or unsatisfactory professional conduct in the course of acting for his client, Mr Kenneth Eric Johnston (Mr Johnston), by:
(a) failing, without good reason, to meet with Mr Johnston or to ensure that any representative of the Practitioner met with Mr Johnston after judgements of convictions were entered against Mr Johnston in the District Court at Geraldton on 18 March 2009;
b)on various dates between 18 October 2007 and 19 February 2009, failing to deposit trust moneys, as defined in s 3 of the 2003 Act, that he had received from Mr Johnston to the credit of his trust account as required by s 137 of the 2003 Act; and
(c)on various dates between 9 March 2009 and 8 April 2009, failing to deposit trust money, as defined in s 205(l) of the Legal Profession Act, that he had received from Mr Johnston to the credit of his trust account as required by s 215(2) of the Legal Profession Act.
Complaint 7
The Practitioner engaged in professional misconduct in the course of acting for his client, Mr Adjin Dzemailoski (Mr Dzemailoski), by:
(a)on or about 23 February 2010 failing to deposit trust money, as defined in s 205(l) of the Legal Profession Act, in the sum of $3,000 that he had received from Mr Dzemailoski to the credit of his trust account as required by s 215(2) of the Legal Profession Act;
(b)between 23 February 2010 and 10 May 2010:
(i)failing to carry out work for Mr Dzemailoski which he had agreed to do; and
(ii)failing to account to Mr Dzemailoski for the moneys received from him and retained by the Practitioner for work to be performed by the Practitioner; and
(c)between 1 February 2010 and 15 June 2010 in relation to proceedings between Mr Dzemailoski and Narinder Kaur Dzemailoski in the Family Court substantially or consistently failing to reach or maintain a reasonable standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian practitioner.
Complaint 8
The Practitioner engaged in professional misconduct by:
(a)on various dates between 30 June 2010 and in or about March 2011 failing to respond to the Committee's reasonable enquiries;
(b)failing to comply with a summons to Produce Documents issued on 18 August 2010 and 2 September 2010 in breach of s 520(1) of the Legal Profession Act; and
(c)failing to respond to a letter from the Senior Trust Account Inspector dated 9 June 2010 requesting confirmation of the findings set out in a 'Report on Examination of Office and Practice Records of Martin Lee Segler' dated 9 June 2010.
Complaint 9
Further or in the alternative to Complaints 1 to 8 the Practitioner engaged in professional misconduct between about 9 August 2007 and March 2011 by engaging in all of, or any combination of the conduct referred to in Complaints 1 to 8.
The facts alleged, the parties' contentions and the Tribunal's findings
In its application, the Committee set out a statement of facts and contentions in respect of each of the complaints referred to above. The Practitioner prior to the hearing informed the Committee and the Tribunal that he does not contest the facts alleged by the Committee in support of Complaints 1, 2(a), 3(a), 5(a), 6(b) and (c) and 7(a), although he disputes that the conduct in question constitutes professional misconduct or unsatisfactory professional conduct.
At the commencement of the hearing, the Practitioner also conceded the facts contained in the grounds for Complaint 8; (T:56; 17.04.13).
Also, at the commencement of the hearing the Committee, with the consent of the Practitioner, sought leave to amend the grounds of some of the complaints set out in its application. The Tribunal gave leave accordingly.
For convenience, we will set out in full the complaints and the grounds for those complaints in each of the cases where they have been amended.
We then set out in respect of each complaint the facts alleged by the Committee and the Committee's contentions in respect of those facts, the Practitioner's response and the findings of the Tribunal.
Complaint 1 Hamilton
The grounds in Complaint 1 remain as set out earlier in these reasons.
Complaint 1 the facts according to the Committee
On or about 30 July 2007 the Practitioner received instructions from Ms Hamilton to represent her in relation to a dispute with Stephen Bruno Battaglia in the Family Court. Ms Hamilton signed a written 'Terms of Retainer and Agreement as to Costs', (Hamilton Retainer) which included a term that required Ms Hamilton to pay to the Practitioner a retainer in the amount of $1,500 'for the professional service to be performed for [Ms Hamilton]'.
In accordance with the terms of the Hamilton Retainer, on 9 August 2007 Ms Hamilton paid the amount of $1,500 to the Practitioner.
On or about the dates indicated, in the course of acting for Ms Hamilton, the Practitioner received the following amounts of money from Hamilton:
9 August 2007 $1,500
18 October 2007 $5,000
22 January 2009 $1,000
(collectively referred to as the 2003 Hamilton money).
On or about the dates indicated, in the course of acting for Ms Hamilton the Practitioner also received the following amounts of money from Hamilton:
13 March 2009 $20,000
6 April 2009 $20,000
(collectively referred to as the 2008 Hamilton money)
Complaint 1 the Committee's contentions
The Committee's case is that the 2003 Hamilton money that had been received by the Practitioner from Ms Hamilton was 'trust moneys' for the purposes of s 3 of the 2003 Act. This is because they had been received by him in the course of legal practice in Western Australia for the use or benefit of Ms Hamilton but were under the exclusive control of the Practitioner.
As a result the Practitioner was required, by s l37 of the 2003 Act, to deposit the 2003 Hamilton money to the credit of a trust account.
However, contrary to s 137 of the 2003 Act, the Practitioner, or someone acting under his direction, deposited the 2003 Hamilton money into his general bank account.
In respect of the 2008 Hamilton money received by the Practitioner from Ms Hamilton, the Committee says that this was 'trust money' for the purposes of s 205(l) of the Legal Profession Act, as the 2008 Hamilton money had been entrusted to him in the course of or in connection with the provision of legal services by him.
As a result the Committee contends that the Practitioner was required, by s 215(2) of the Legal Profession Act, as soon as practicable after receiving the 2008 Hamilton money, to deposit it in a general trust account of the Practitioner's practice.
However, contrary to s 215(2) of the Legal Profession Act, the Practitioner, or someone acting under his direction, deposited the 2008 Hamilton money into the Practitioner's general bank account.
The Practitioner's response in respect of Complaint 1
The Practitioner does not dispute the facts set out above in respect of Complaint 1. Further, he does not disagree with the Committee's analysis of the relevant requirements under the 2003 Act in respect of the 2003 Hamilton money and under the Legal Profession Act in respect of the 2008 Hamilton money.
The Practitioner initially denied that he failed to deposit trust money into his trust account and said that he was expressly instructed by Ms Hamilton to receive that money as payments to him. It was only after the Practitioner obtained legal advice in preparation for the hearing of this matter that he was prepared to concede that the money in question was in fact trust money.
The Practitioner now concedes that the Hamilton Retainer was 'deficient'; (Practitioner's Witness Statement paragraph 9). The Practitioner says that he now appreciates, having received and accepted independent legal advice, that the Hamilton Retainer 'did not authorise payment for my own benefit prior to delivery of services'. He says that he now understands the position. He says that it was never his intention to circumvent or infringe provisions of the 2003 Act or the Legal Profession Act. He points out that his trust account had been audited for the financial years to 30 June 2007, 2008 and 2009 respectively and a 'satisfactory report in respect of each account and year' had been issued. He also points out that an inspector from the Legal Practice Board conducted a 'random audit' of his trust account and entries in his general account in 2009 and he received no adverse report or comment as a result of that inspection; (Practitioner's Witness Statement paragraph 10).
Complaint 1 the findings of the Tribunal
Section 137 of the 2003 Act provides that every legal practitioner practising in this State who receives money in advance of provision of legal services must deposit that money to the credit of a trust account. That money must be retained in that account until it is dealt with as directed by the person concerned. It is only if the person directs otherwise that these provisions do not apply; (s 137(2) of the 2003 Act).
Section 215 of the Legal Profession Act contains corresponding provisions.
The Practitioner admits to the conduct alleged and the Tribunal finds, on the Practitioner's admission, that the Practitioner failed to deal with trust moneys pursuant to s 137 of the 2003 Act and failed to deal with trust money pursuant to s 215 of the Legal Profession Act.
The Practitioner had been in practice since 1980 until his retirement in 2010 and can be regarded as an experienced legal practitioner. He has held, amongst other roles, the position of managing partner for several years in a midsized legal practice in Perth. His failure to appreciate the statutory requirements for trust money cannot be explained by inexperience or mere 'error'; (Practitioner's Witness Statement paragraph 18).
Integrity in dealing with clients' money is crucial to a lawyer's continuing entitlement to practice; see for example The Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198. At [106], the Court said:
Conduct of this kind is serious and has often been treated as such by the courts. One example is the case of In re A Practitioner (1982) 30 SASR 27. A practitioner failed to pay cheques into a trust account and instead disbursed the proceeds for profit. An equivalent sum was ultimately paid by the practitioner into the trust account and no loss or delay was suffered by the client. When called upon to explain the irregularities, the practitioner at first gave a misleading and untrue explanation. The Court ordered that he be struck off the roll of practitioners. King CJ said (at 31) that, despite the fact that the practitioner always intended to pay the money back, his conduct was:
… an affront to the sanctity of the practitioner's Trust Account and this Court has a duty to vindicate the inviolability of the trust imposed upon a practitioner to treat his clients' money in all respects as their money and to use their money for their purposes and no other. The public can feel confidence in legal practitioners and their handling of their money only if they know that there is involved no element of judgment on the part of the practitioner, and that their money must remain in his Trust Account until it is disbursed in accordance with their direction; because no matter how good the intentions of a practitioner might be, no matter how confident he might be that the money can be made good, whenever a client's money is deliberately used for a purpose other than the purpose for which the client entrusted it to the practitioner, there is an act of dishonesty on the part of the practitioner and one which exposes the client to some element of risk as to his money.
Consistent with the Tribunal's findings in the past, we consider that the Practitioner's failure to pay trust money into a trust account, even in the absence of dishonesty, is professional misconduct. The Tribunal therefore finds that this complaint has been made out. The Practitioner is guilty of professional misconduct on the grounds set out in Complaint 1 of the Committee's application.
Complaint 2 Basagic
This allegation has been amended; (T:24; 17.04.13). Complaint 2 now reads as follows, the added words being shown in italics:
The Practitioner engaged in professional misconduct in the course of acting for his client, Mr Basagic, by:
(a)on or about 25 February 2008 failing to deposit trust moneys, as defined in s 3 of the 2003 Act, in the sum of $3,500 that he had received from Mr Basagic to the credit of his trust account as required by s l37 of the 2003 Act.
(b)between 25 February 2008 and 10 May 2010:
(i)failing to carry out work or adequate work for Mr Basagic which he had agreed to do; and
(ii)failing to account to Mr Basagic for the monies received from him and retained by the Practitioner for work to be performed by the Practitioner.
(c)failing to notify Mr Basagic that he had ceased to act for him from or about 10 May 2010.
Complaint 2 the facts according to the Committee and the Committee's contentions
It is not in dispute that on or about 22 February 2008, at a meeting in the Practitioner's office, the Practitioner provided some advice to Mr Basagic and received instructions from Mr Basagic to act on his behalf to relation to a dispute between Mr Basagic and an entity trading under the name Furniture Carpet & Timber Flooring Traders (Traders). The dispute concerned what Mr Basagic regarded as a defective installation of a timber floor at his property at 248 Armadale Road, Kewdale.
At that meeting, the Practitioner gave Mr Basagic a written 'terms of retainer and agreement as to costs' (Basagic Retainer). The Basagic Retainer included a term that required Mr Basagic to pay to the Practitioner an amount of $3,500 'for the professional service to be performed'. The Committee contends that Mr Basagic did not sign the Basagic Retainer. On 25 February 2008, Mr Basagic paid an amount of $3,500 to the Practitioner. The Practitioner issued Mr Basagic with a receipt for that money.
The Committee says that the $3,500 that had been received by the Practitioner from Mr Basagic was 'trust moneys' for the purposes of s 3 of the 2003 Act as it had been received by him in the course of legal practice in Western Australia for the use or benefit of Mr Basagic but was under the exclusive control of the Practitioner. As a result the Practitioner was required, by s 137 of the 2003 Act, to deposit the $3,500 to the credit of a trust account.
However, contrary to s l37 of the 2003 Act, the Practitioner, or someone acting under his direction, deposited the $3,500 into his general bank account.
The Committee's case is then that Mr Basagic attempted to contact the Practitioner after 25 February 2008 but was unable to do so. The Committee accordingly alleges that Practitioner did not carry out adequate work on behalf of Mr Basagic in relation to the dispute between Mr Basagic and Traders other than meeting with him on 22 February 2008.
The Committee further contends that when the Practitioner ceased to practice as a legal practitioner, he did not at any time advise or inform Mr Basagic that he had ceased to practice as a legal practitioner and that he had ceased to act on his behalf as a consequence.
Also, the Committee says, the Practitioner has not at any time issued an invoice to Mr Basagic or otherwise accounted to him for the $3,500 received from him.
The Practitioner's response in respect of Complaint 2
The Practitioner accepts that the Basagic Retainer included a term that required Mr Basagic to pay to the Practitioner a retainer in the amount of $3,500 'for the professional service to be performed for [Mr Basagic]'. The copy of this document which appears in the Committee's Book at pages 35 and 36 has been signed by the Practitioner but not by Mr Basagic, although the Practitioner says that Mr Basagic did in fact sign that agreement. As will be seen, Mr Basagic subsequently accepted this.
The Practitioner concedes that the Basagic Retainer 'was deficient as aforesaid said for my intended purposes'; (Practitioner's Witness Statement paragraph 24). He repeats what he said in this regard in response to the corresponding allegation under Complaint 1 Hamilton.
However, he takes issue with Mr Basagic's recollection of other events. He agrees that he met initially with Mr Basagic on 22 February 2008. He said that he then wrote to him that evening and then consulted with him again on 25 February 2008. On the second occasion Mr Basagic signed the Basagic Retainer and paid to the Practitioner the sum of $3,500. The Practitioner says that he provided Mr Basagic with a receipt for that money 'then and there'.
The Practitioner then says that at that meeting he agreed to write to Traders in terms which they discussed. The file note of that meeting appears at page 39 of the Practitioner's Book. He then prepared and sent a letter of demand to Traders on 11 March 2008; (Practitioner's Book page 40), after he had 'considered substantial reports and quotations'; (Practitioner's Witness Statement paragraph 28).
The Practitioner denies the allegation made by Mr Basagic that he advised Mr Basagic to have the flooring which had been installed 'ripped up and then replaced by somebody else'. He also denies Mr Basagic's allegation that he advised Mr Basagic to 'take the old floor and drop it off at Furniture Carpet and Timber Flooring Traders once it had been ripped up'. The Practitioner's recollection of events is that Mr Basagic's son sent him numerous photographs of the work the subject of the dispute and then Mr Basagic was to commission a report on the defective work by an expert. The Practitioner said that he did not consider that the report already prepared for Mr Basagic was sufficient and that the Practitioner required a report from the contractor who had actually carried out the remedial work; (T:227; 19.04.13).
The Practitioner says that he had a further meeting with Mr Basagic and his son on 1 September 2008. He has produced a file note of that meeting; (Practitioner's Book page 42). Most further communications with Mr Basagic were through Mr Basagic's son. The Practitioner said that Mr Basagic worked 'up north somewhere'; (T:245; 19.04.13) and that he had instructed the Practitioner to deal with his son. He said that he kept telling Mr Basagic's son that he needed the further report; (T:248; 19.04.13).
The Practitioner also produced a copy of a letter dated 27 April 2010 and addressed to Mr Basagic at 248A Armadale Road, Kewdale (Practitioner's Book pages 4344). That letter contains the advice that the Practitioner is to retire from legal practice with effect from 10 May 2010 and that he was no longer in a position to continue representing Mr Basagic in his claim against Traders.
Complaint 2 the evidence
Mr Basagic provided an affidavit sworn by him on 6 February 2013 and a further affidavit sworn by him on 14 March 2013. He also supplemented his evidence orally (through an interpreter) at the hearing and was crossexamined.
In his earlier affidavit he says that the Practitioner 'never did anything for me after I paid him the money'. He also says that he had never seen the Basagic Retainer before it was shown to him by the Committee.
In his further affidavit, Mr Basagic gave evidence that he had also never before seen the letter from the Practitioner of 27 April 2010; (Respondent's Book pages 43-44) and had never received it. He also said that he had never received the tax invoice dated 27 April 2010 which appears in the Respondent's Book at pages 45-48.
Under crossexamination it was put to Mr Basagic that all of the documents in the Respondent's Book from pages 36-48 inclusive must have been previously seen by Mr Basagic, because it was from Mr Basagic that the Committee obtained copies of those documents. Mr Basagic replied that he 'cannot remember all of these little details - come on - when I lost a significant amount of money, and I was signing documents and nothing was being sent to me' (T:153; 18.04.13).
The Practitioner then showed Mr Basagic a further copy of the Basagic Retainer; (Respondent's Book pages 37 and 38) which included Mr Basagic's signature. Despite what he had said in his earlier affidavit, Mr Basagic confirmed that this was in fact his signature. He then said that he remembered signing the document but said that he never received a copy of it; (T:150; 18.04.13).
It was also put to Mr Basagic that when he first met with the Practitioner, in the company of Mr Basagic's son and his friend Mr Dzemailoski, on 22 February 2008, no papers were exchanged. Mr Basagic agreed, saying that they just had a conversation and then three days later he returned to the Practitioner's office with the agreed payment. Mr Basagic added that 'all in all, I think I saw him three times' (T:154; 18.04.13).
In connection with Mr Basagic's address for correspondence, Mr Basagic also explained (T:155; 18.04.13) that there are in fact two houses, both belonging to him, at 248 Armadale Road. One has the address 248A Armadale Road.
Finally, Mr Basagic was shown a copy of the letter from the Practitioner bearing the date 27 April 2010 and addressed to Mr Basagic at 248A Armadale Road (Respondent's Book page 43). This was the letter which contained an advice from the Practitioner to Mr Basagic that he was retiring from legal practice with effect from 10 May 2010 and was no longer able to represent him.
Mr Basagic was asked whether or not he had ever seen this letter before and he answered 'no'; (T:158; 18.04.13).
Complaint 2 the findings of the Tribunal
The Practitioner admits the facts alleged by the Committee in respect of Complaint 2(a), namely that he failed to deposit trust moneys into a trust account. The Tribunal's finding in respect of Complaint 2(a) is that the Practitioner is guilty of professional misconduct, for the reasons set out in the Tribunal's findings under Complaint 1 Hamilton.
We then turn to the remainder of this complaint. It is clear to the Tribunal that Mr Basagic was unhappy that the work which the Practitioner was engaged to carry out was not completed. We do not, however, accept Mr Basagic's evidence that the Practitioner advised him to take up the defective flooring and return it to the contractors. This would have been completely contrary to Mr Basagic's interests.
There is no doubt that Mr Basagic did not achieve the outcome which he was seeking. There is also no doubt that the Practitioner did not progress the matter in the way in which Mr Basagic saw as being the most appropriate. However, it is unclear what work the Practitioner agreed to do. The Practitioner wrote to Traders and met with Mr Basagic on at least one further occasion after the sum of $3,500 was paid. Mr Basagic's son was involved to some extent but it is unclear as to what extent. The Tribunal therefore cannot conclude that the Practitioner failed to carry out work which he agreed to do.
The progress or otherwise of the matter from September 2008 until the Practitioner's retirement from practice in May 2010 is also unclear. Mr Basagic's evidence is that he continued to try to contact the Practitioner during that time but was unable to do so. The Practitioner's evidence is that he was in fact progressing the matter by collecting photographs of the defective workmanship from and otherwise dealing with Mr Basagic's son and in particular he was awaiting a further report as to why the flooring needed to be replaced.
The Tribunal considers that there is insufficient evidence to conclude that the Practitioner failed to carry out adequate work.
We find that Complaint 2(b)(i) has not been made out.
We now turn to Complaint 2(b)(ii) and Complaint 2(c). The Practitioner has produced a copy of a letter to Mr Basagic informing Mr Basagic of his retirement and enclosing his final account (Respondent's Book pages 43-48). Mr Basagic's statement that he did not receive these documents could lead us to one of three conclusions. It could be that the letter did not reach him because of the way in which it was addressed. Alternatively, it could be that the Practitioner never sent it to him. The third possibility is that Mr Basagic was mistaken when he said he did not receive it.
In light of the fact that Mr Basagic also said that he did not receive the Basagic Retainer and only withdrew that statement when a signed copy of the Basagic Retainer was shown to him, we prefer the latter explanation. Mr Basagic left the Tribunal with the view that he was uninterested in anything other than his desired outcome with regard to his dispute with Traders. His evidence was given with great anger, making proper examination impossible, and he showed poor recollection of events.
We conclude that Complaints 2(b)(ii) and 2(c) have not been made out.
Complaint 3 Glusica
This allegation has also been amended; (T:65; 17.04.13). The Committee not only sought and obtained leave to add words to the allegation in the same way as it did in Complaint 2, but also sought leave to withdraw part of the complaint; (T:65; 17.04.13). Leave was given and this complaint now reads as follows, subparagraph (b)(ii) having been removed and the added words being shown in italics.
The Practitioner engaged in professional misconduct in the course of acting for his client, Mr Glusica, by:
(a)on or about 28 March 2008 failing to deposit trust moneys, as defined in s 3 of the 2003 Act, in the sum of $5,000 that he had received from Mr Glusica to the credit of his trust account as required by s 137 of the 2003 Act;
(b)between 28 March 2008 and 10 May 2010:
(i)failing to carry out work or adequate work for Mr Glusica which he had agreed to do; and
(ii)(withdrawn); and
(c)between 13 May 2008 and 1 May 2009 in the course of acting on behalf of Mr Glusica in relation to Supreme Court action number CIV 1511 of 2008 substantially or consistently failing to reach or maintain a reasonable standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian practitioner.
Complaint 3 the facts according to the Committee and the Committee's contentions
Around or during February 2008, the Practitioner received instructions from Mr Glusica to represent him in relation to a dispute with The National Mutual Life Association of Australia Limited (National Mutual) in connection with an alleged failure by National Mutual to pay under an income protection insurance policy. He agreed to conduct proceedings in the Supreme Court up to and including a mediation conference.
On 28 March 2008 the Practitioner and Mr Glusica entered into a written agreement entitled 'Terms of Retainer and Agreement as to Costs' (Glusica Retainer) pursuant to which it was agreed that Mr Glusica would pay to the Practitioner a retainer in the amount of $5,000 'in respect of the presentation to the Supreme Court of Western Australia by Writ of your claim for specific performance of your contract for income protection insurance and related damages, to and including a Mediation Conference'.
In accordance with the terms of the Glusica Retainer, on 28 March 2008 Mr Glusica paid the Practitioner an amount of $5,000 in cash.
The Committee says that the $5,000 that had been received by the Practitioner from Mr Glusica was 'trust moneys' for the purposes of s 3 of the 2003 Act because it had been received by him in the course of legal practice in Western Australia for the use or benefit of Mr Glusica but was under the exclusive control of the Practitioner.
As a result the Practitioner was required, by s 137 of the 2003 Act, to deposit the $5,000 to the credit of a trust account.
However, contrary to s 137 of the 2003 Act, the Practitioner, or someone acting under his direction, deposited the $5,000 into his general bank account.
On 13 May 2008 the Practitioner filed a writ of summons in the Supreme Court of Western Australia against National Mutual, on behalf of Mr Glusica. In the general indorsement of claim it was alleged that National Mutual had breached a policy of income protection insurance held by Mr Glusica or, in the alternative, had breached its duty of utmost good faith to Mr Glusica in respect of that policy.
On 11 August 2008, at a status conference before Acting Registrar Christo, orders were made requiring Mr Glusica to file and serve a statement of claim by 26 September 2008. Further orders were made for the filing of a defence and for discovery to be completed.
That statement of claim was not filed in accordance with the orders and on 17 November 2008, at a further status conference, Acting Registrar Christo vacated those orders and made further orders that the parties to the action submit themselves to mediation.
The action was eventually listed for mediation on 27 March 2009. However, the Practitioner failed to attend a status conference before Registrar Rimmer on 18 March 2009. The mediation conference was vacated and the status conference was adjourned to 6 April 2009.
At the status conference on 6 April 2009, which the Practitioner did attend on behalf of Mr Glusica, Registrar Rimmer made orders to the effect that unless a statement of claim was filed and served by 28 April 2009 the action would be struck out and that Mr Glusica would be liable to pay National Mutual's costs. The status conference was otherwise adjourned to 4 May 2009.
The Committee says that the Practitioner failed to advise Mr Glusica of the orders that had been made on 6 April 2009, in particular the order requiring a statement of claim to be filed and served by 28 April 2009.
The Committee also says that, without a reasonable excuse, the Practitioner failed to file and serve a statement of claim by 28 April 2009 or at all.
As a consequence of the Practitioner's failure to file and serve a statement of claim by 28 April 2009, Registrar Rimmer made orders on 1 May 2009 that Mr Glusica's claim against National Mutual be struck out with judgment entered for National Mutual. The Registrar also ordered that Mr Glusica pay National Mutual's costs of the action.
The Committee alleges that the Practitioner failed to inform Mr Glusica of the orders that had been made by Registrar Rimmer on 1 May 2009, or to seek his instructions as to how he wanted to proceed with the action in light of those orders. The Committee also says that the Practitioner further failed to provide Mr Glusica with any advice in relation to the possible courses of action that might be taken to set aside the judgment that had been entered in favour of National Mutual.
Further, the Committee says that the Practitioner failed to inform Mr Glusica that he should obtain independent legal advice as to what recourse Mr Glusica might have against the Practitioner due to his failure.
The Practitioner's response in respect of Complaint 3
The Practitioner concedes that the Glusica Retainer 'was deficient as aforesaid for my intended purposes'; (Practitioner's Witness Statement paragraph 32). He repeats what he said in this regard in response to the corresponding allegation under Complaint 1 Hamilton.
The Practitioner says that he does not have a 'comprehensive recollection' of Mr Glusica's file but he concedes that he 'missed the timeline' for the filing of Mr Glusica's statement of claim. He also concedes that default judgment was then entered against him. The Practitioner says that this oversight was caused by an error in his 'file review program' and he did not appreciate his error until he received a copy of the case management Registrar's order which appears in the Committee's Book at page 117.
The Practitioner strenuously denies failing to provide adequate advice to Mr Glusica and refers to the 'many more hours' that he spent on the matter; (Practitioner's Witness Statement paragraph 39). The Practitioner maintains that the reason why he is unable to produce much by way of correspondence with Mr Glusica is that Mr Glusica asked him not to write to him but rather to provide advice to him in person; (Practitioner's Witness Statement paragraph 37).
The Practitioner says that he informed Mr Glusica of his error in failing to file the statement of claim and advised Mr Glusica that he ought to seek recompense through the Practitioner's insurer in respect of that error. He says that he informed Mr Glusica that he would need to instruct other solicitors for this purpose.
The Practitioner says that his next contact with Mr Glusica was on 25 September 2009 when Mr Glusica requested that his file be returned. He says that Mr Glusica collected his file from the Practitioner's office on 1 October 2009.
Complaint 3 the evidence
Mr Glusica provided a witness statement sworn by him on 23 January 2013. He provided supplementary oral evidence at the hearing and was crossexamined.
Mr Glusica's evidence is that he had instructed the Practitioner to represent him in a dispute which he was having with National Mutual. He met with the Practitioner in or around February 2008 and discussed the proceedings generally. He said that the Practitioner told him that matters of this nature usually settled at mediation.
Mr Glusica says that he paid the sum of $5,000 to the Practitioner in or around March 2008, his understanding being that this was the amount required to represent him in the proceedings up to and including the mediation conference.
Mr Glusica departed for an overseas holiday in June 2008 and says that while he was overseas he spoke with the Practitioner twice to discuss the proceedings. He returned in September 2008 because the Practitioner had informed him that the mediation process was about to begin.
He then says that from the time he returned from overseas, he was initially unable to contact the Practitioner and he eventually contacted the Court himself in order to ascertain the status of his matter. He established that the Practitioner had been required to file a statement of claim and that the Practitioner had sought further time to do this. When he eventually spoke to the Practitioner, he accepted the Practitioner's reasons for failing to return his calls and agreed that the Practitioner would continue to represent him.
A further period ensued when Mr Glusica was unable to contact the Practitioner and in or around July 2009 he visited the Court personally and was informed that his matter had been struck out. He then contacted the Practitioner's officer, spoke to the Practitioner's secretary and collected his file. He says that he has not spoken to the Practitioner since then.
In his oral evidence, Mr Glusica denied discussing with the Practitioner the possibility of obtaining independent advice in respect of a potential claim against the Practitioner; (T:86; 17.04.13). He was shown a copy of a letter apparently sent to him by the Practitioner on 1 October 2009 referring to instructions received by the Practitioner on 25 September 2009 and returning his files, apparently as requested; (Practitioner's Witness Statement Attachment 'MLS2'). Mr Glusica denied receiving or seeing that letter; (T:73; 17.04.13).
Mr Glusica confirmed that the papers which he had collected from the Practitioner comprised two lever arch files which were 'full of documents'; (T:73-74; 17.04.13).
Under crossexamination, Mr Glusica denied recalling anything that the Practitioner put to him. In particular, he denies that the Practitioner advised him to seek advice from another lawyer about making a formal claim against the Practitioner. He said that he did not in fact make any claim against the Practitioner.
Mr Glusica agreed with the Practitioner, however, that the reason why he had not received much written advice from the Practitioner was that he had expressly requested the Practitioner not to write to him, on the basis that he did not understand every thing in the letters; (T:82; 17.04.13).
Complaint 3 the findings of the Tribunal
Dealing first with the allegation under Complaint 3(a), the Practitioner admits the facts alleged by the Committee, namely that he failed to deposit trust moneys into a trust account. The Tribunal's finding in respect of Complaint 3(a) is that the Practitioner is guilty of professional misconduct, for the reasons set out in the Tribunal's findings in respect of Complaint 1 Hamilton.
It is difficult to consider separately Complaint 3(b)(i), which is an allegation by the Committee that the Practitioner failed (between 28 March 2008 and 10 May 2010), to carry out work or adequate work for Mr Glusica which he had agreed to do, from Complaint 3(c) which specifically relates to Supreme Court Action CIV 1511 of 2008. The Committee accepts that the Practitioner filed a writ of summons against National Mutual on 13 May 2008. Mr Glusica appears to have been satisfied that the matter was being properly and adequately progressed at least up to the point when the Practitioner informed Mr Glusica that he needed to return from overseas. We therefore do not understand there to be a complaint against the Practitioner in respect of his performance or failure to perform during the time from 28 March 2008 to the date of filing of that writ of summons. The Committee's concerns start at the point when the writ of summons was lodged and, if there are concerns about the Practitioner's performance up to that point, they have not been enunciated or substantiated.
The Tribunal finds that Complaint 3(b)(i) has therefore not been made out except to the extent that it includes the specific complaint in Complaint 3(c).
It would be unrealistic to expect of a legal practitioner that he or she will never make a mistake or miss an appointment or deadline. However, if a practitioner consistently fails to comply with the orders of a court to the effect that the client's interests are significantly prejudiced then the Tribunal regards this as gross neglect which justifies a finding of professional misconduct. In this case, the effect of the Practitioner's neglect was that default judgment was entered and costs awarded against his client.
The fact that the Practitioner was insured, irrespective of whether or not he advised Mr Glusica of this, does not excuse him.
The Tribunal finds that Complaint 3(c) and Complaint 3(b)(i), to the extent that it is included, have been made out. In relation to Supreme Court action number CIV 1511 of 2008, the Practitioner substantially failed to reach and maintain a reasonable standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. The Practitioner is guilty of professional misconduct.
Complaint 4 Mateljan
The grounds in Complaint 4 remain as set out earlier in these reasons.
Complaint 4 the facts according to the Committee and the Committee's contentions
(a) Failure to respond to correspondence
Ms Mateljan was the respondent in the Mateljan proceedings in the Family Court. Lyndsay Michael Carlisle (Carlisle) was Ms Mateljan's de facto husband and the applicant in the Mateljan proceedings.
The Mateljan proceedings related to the distribution of family property, including the family home at 92 Blackbutt Grove, Gabbadah (Blackbutt Grove house). Carlisle was represented by Mr EJ Wall of EJ Wall & Associates (Wall) and Ms Mateljan was then represented by Dwyer Durack.
Despite attempts to reach a settlement in respect of the Blackbutt Grove house, no agreement was reached. Wall filed an application for final orders with supporting documents on 1 July 2008 in the Family Court and served these on Dwyer Durack.
On or about 16 July 2008, Ms Mateljan terminated the services of Dwyer Durack and instructed the Practitioner to represent her in the matter. The Practitioner filed with the Family Court a Notice of Address for Service on 18 July 2008.
At a hearing on 29 July 2008 the Family Court ordered that a conciliation conference take place on 13 November 2008 and made various other orders (29 July 2008 Orders) (Committee's Book pages 127131) which included relevantly the following orders:
•Paragraph 3: within 42 days each party is to provide certain listed financial and taxation records to the other party;
•Paragraph 4: no later than 12 August 2008 Ms Mateljan is to file a response and a financial statement;
•Paragraph 7: within 28 days the parties are to do all things necessary to obtain a joint valuation of the Blackbutt Grove house;
•Paragraph 8: the costs of the valuation are to be borne equally;
•Paragraph 9: within 42 days each party is to provide certain listed documents relating to the financial situation of each of them.
By letter dated 3 September 2008 to the Practitioner, (Committee's Book page 132) Wall requested service of the forms referred to in Paragraph 4 of the 29 July 2008 Orders within 10 days, failing which he proposed to apply to have the Mateljan proceedings listed as undefended. The Practitioner did not respond.
On 17 September 2008 Wall filed an application to have the Mateljan proceedings listed as undefended. The Practitioner then filed the required documents on 1 October 2008 and by consent the application was adjourned.
By letter dated 24 October 2008 to the Practitioner, (Committee's Book pages 138139) Wall:
(a)in preparation for the conciliation conference on 13 November 2008 and in accordance with Paragraph 7 of the 29 July 2008 Orders, proposed a joint appointment of Grundmann & Associates to value the Blackbutt Grove house;
(b)attached a draft letter to Mr Grundmann;
(c)forwarded a list of Carlisle's documents previously disclosed to Dwyer Durack and asked if copies of those documents were required by the Practitioner;
(d)renewed a request for production of a number of Ms Mateljan's documents the subject of Paragraphs 3 and 9 of the 29 July 2008 Orders; and
(e)advised that at no stage had Ms Mateljan provided disclosure of any documents.
By letter dated 28 October 2008 to the Practitioner (Committee's Book page 143), Wall informed the Practitioner that the appointment of a valuer was now very urgent so that a valuation could be obtained prior to the conciliation conference and enquired if the draft letter (which he again attached) to Grundmann & Associates could be sent. The Practitioner failed to respond.
In a telephone call with Wall on 30 October 2008, the Practitioner advised that he proposed to appoint a different valuer to value the Blackbutt Grove house. He did not say who he proposed would conduct the valuation or what their costs would be. By letter of the same date to the Practitioner (Committee's Book page 144), Wall stated that unless these details were provided Carlisle would apply for an order appointing Grundmann & Associates to conduct the valuation.
On 10 November 2008 Wall filed with the Family Court particulars for the conciliation conference (Committee's Book pages 145152), which recorded that Ms Mateljan had failed to comply with orders concerning disclosure and the joint valuation of the Blackbutt Grove house.
The Practitioner's conduct complained about in Segler [2009], Segler [2010] and Segler all occurred around the same time, prior to or at the time of the decision in Segler [2009]. The Tribunal in this case does not therefore consider that the Practitioner's 'disciplinary history' necessarily indicates a lack of insight and understanding in respect of his conduct.
However, what the Practitioner's record does show is a disturbing repetition in his behaviour, particularly in his attitude towards the Court. This leads us to question whether the Practitioner continues to command the personal confidence of his clients, fellow practitioners and judges.
The Tribunal's finding in particular that the Practitioner misled the Court raises serious questions as to the Practitioner's fitness to practise. Even a single event of intentionally misleading a Court may be sufficient to justify a report to the Supreme Court (full bench); Legal Profession Complaints Committee and Vanderfeen [2011] WASAT 118 (S) at [13]. A deliberate departure from a practitioner's duty to conduct himself or herself with honesty and candour must attract a substantial penalty; Vogt at [70].
As McMurdo P said in The Council of the Qld Law Society v Wright [2001] QCA 58 at [67]:
Breaches such as [misleading the Court] are hard to detect and once established to the requisite standard are deserving of condign punishment, not only as a deterrent but also to reassure the public that such conduct on the part of lawyers will not be tolerated.
In the Tribunal's view, the finding of misleading the court, without the other findings, would lead us to the conclusion that the Practitioner may lack the necessary quality of trustworthiness and integrity and may not be a fit and proper person to remain a member of the legal profession. When considered in the light of the other findings against the Practitioner, the Tribunal becomes firmly of that view.
On that basis, the Tribunal considers that the appropriate professional disciplinary consequence of the Practitioner's professional misconduct is to make and transmit a report on our findings to the Supreme Court (full bench). The report is to comprise the earlier reasons and these reasons and is to be transmitted with a copy of the exhibits and the transcript of the proceeding. The Tribunal recommends that the Practitioner's name be removed from the Roll of Practitioners.
The Practitioner does not currently hold a practising certificate and accordingly there is no requirement for any further action pending the determination of the Supreme Court (full bench).
Costs
The Committee also seeks an order for costs pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
87. Costs of parties and others
(1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2)Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
(3)The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
(4)Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal’s review jurisdiction, the Tribunal is to have regard to -
(a)whether the party (in bringing or conducting the proceeding before the decision‑maker in which the decision under review was made) genuinely attempted to enable and assist the decision‑maker to make a decision on its merits;
(b)whether the party (being the decisionmaker) genuinely attempted to make a decision on its merits.
(5)The rules may deal with the effect of certain offers to settle, and responses, if any, to the offer, on the making of an order for the payment by a party of the costs of another party.
(6)The Tribunal may order that the representative of a party, rather than the party, in the representative’s own capacity compensate that or any other party for costs incurred because the representative acted in, or delayed, the proceeding in a way that resulted in unnecessary costs.
The Tribunal's practice in disciplinary proceedings is that, normally, a vocational regulatory body that has been successful in vocational regulatory proceedings should receive an order for the payment of its costs; Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) at [30]. There is no reason in the circumstances of this case to depart from the Tribunal's usual practice in relation to costs. An order for costs in favour of the Committee should therefore be made.
The quantum of costs sought, $18,790.60 is reasonable in the circumstances.
Orders
The Tribunal makes the following orders:
1.Pursuant to s 438(2)(a) of the Legal Profession Act 2008 (WA), a report be transmitted to the Supreme Court (Full Court) on the Tribunal's finding that the practitioner, Mr Martin Lee Segler, is guilty of professional misconduct. The report comprises the Tribunal's reasons in Legal Profession Complaints Committee and Segler [2013] WASAT 117 and these reasons and is to be transmitted with a copy of the exhibits and transcript of the proceeding.
2.Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the respondent must pay to the applicant its costs of the proceeding in terms of disbursements in the amount of $18,790.60 by the date 42 days from the date of these orders.
I certify that this and the preceding [56] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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