LEGAL PROFESSION COMPLAINTS COMMITTEE and WATERS

[2015] WASAT 4

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LEGAL PROFESSION COMPLAINTS COMMITTEE and WATERS [2015] WASAT 4

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2015] WASAT 4
Act:	LEGAL PROFESSION ACT 2008 (WA)
Case No:	VR:108/2014	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	JUSTICE J C CURTHOYS (PRESIDENT) MR P McNAB (SENIOR MEMBER) MS R MOORE (MEMBER)	Delivered:	21/01/15
No of pages:	15	Judgment Part:	1 of 1
Result:	Practitioner guilty of professional misconduct Report to Full Court of the Supreme Court recommending striking off
Category:	B
PDF Version

Parties:	LEGAL PROFESSION COMPLAINTS COMMITTEE KIM JOSEPH WATERS
Catchwords:	Vocational regulation Legal practitioner Professional misconduct Report on findings to Supreme Court (Full Bench) with recommendation that name of practitioner be removed from Roll of Practitioners
Legislation:	Legal Profession Act 2008 (WA), s 403, s 408, s 438(1) Legal Profession Conduct Rules (WA), r 10(2) State Administrative Tribunal Act 2004 (WA), s 56(1)
Case References:	Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119 Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58(S); (2012) 80 SR (WA) 134 Legal Profession Complaints Committee v in de Braekt [2013] WASC 124 The Council of the Queensland Law Society Inc v Wright [2001] QCA 58
Orders	On the application determined on the documents by the President, Justice Curthoys, Senior Member Peter McNab and Member Rebecca Moore, it is on 21 January 2015 ordered that:,1. Pursuant to s 438(4)(b) the Tribunal makes and transmits a report on the findings of professional misconduct to the Supreme Court of Western Australia (Full Bench) with a recommendation that the practitioner's name be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008 (WA).,2. The practitioner pay the applicant's costs in the sum of $3,000 to the Legal Practice Board within 30 days of this order unless other terms have been agreed by the applicant.
Summary	The Legal Profession Complaints Committee made a referral to the Tribunal under s 428(1) of the Legal Profession Act 2008 (WA), in relation to a legal practitioner, Mr Kim Joseph Waters.,Following mediation, the parties agreed to consent orders in which the practitioner admitted to professional misconduct whereby he acted dishonestly and in breach of his duties as an officer of the Court, in the course of acting for a client in a claim for damages in respect of personal injuries.,The misconduct, as outlined in the consent orders, involved the practitioner intentionally misleading others while acting in his professional capacity. The practitioner's misleading conduct occurred on six occasions and over an extended period of time. Of a particularly serious nature was the filing of an affidavit sworn by the practitioner with the intention of misleading the Court.,The practitioner's other conduct is also serious in that he failed to progress the client's claim between July 2008 and October 2012 and failed to respond to the client's queries.,As a result of the conduct identified in the minute of consent orders, the Tribunal determined that neither the Court, nor the client, could have any confidence in the honesty or integrity of Mr Waters. Mr Waters cannot be trusted to deal fairly within the system in which he practises and therefore the public need to be protected.,Based on Mr Waters' admissions by way of his signature on the minute of consent orders submitted to the Tribunal on 19 November 2014, the Tribunal was satisfied that the practitioner engaged in professional misconduct.,The Tribunal will transmit a report on its findings to the Supreme Court (Full Bench), with a recommendation for removal of the practitioner's name from the Roll.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and WATERS [2015] WASAT 4 MEMBER : JUSTICE J C CURTHOYS (PRESIDENT)

MR P McNAB (SENIOR MEMBER)
MS R MOORE (MEMBER)

HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 21 JANUARY 2015 FILE NO/S : VR 108 of 2014 BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE

Applicant

AND

KIM JOSEPH WATERS
Respondent

Catchwords:

Vocational regulation - Legal practitioner - Professional misconduct - Report on findings to Supreme Court (Full Bench) with recommendation that name of practitioner be removed from Roll of Practitioners

Legislation:

Legal Profession Act 2008 (WA), s 403, s 408, s 438(1)

Legal Profession Conduct Rules (WA), r 10(2)
State Administrative Tribunal Act 2004 (WA), s 56(1)

Result:

Practitioner guilty of professional misconduct

Report to Full Court of the Supreme Court recommending striking off

Summary of Tribunal's decision:

The Legal Profession Complaints Committee made a referral to the Tribunal under s 428(1) of the Legal Profession Act 2008 (WA), in relation to a legal practitioner, Mr Kim Joseph Waters.

Following mediation, the parties agreed to consent orders in which the practitioner admitted to professional misconduct whereby he acted dishonestly and in breach of his duties as an officer of the Court, in the course of acting for a client in a claim for damages in respect of personal injuries.
The misconduct, as outlined in the consent orders, involved the practitioner intentionally misleading others while acting in his professional capacity. The practitioner's misleading conduct occurred on six occasions and over an extended period of time. Of a particularly serious nature was the filing of an affidavit sworn by the practitioner with the intention of misleading the Court.
The practitioner's other conduct is also serious in that he failed to progress the client's claim between July 2008 and October 2012 and failed to respond to the client's queries.
As a result of the conduct identified in the minute of consent orders, the Tribunal determined that neither the Court, nor the client, could have any confidence in the honesty or integrity of Mr Waters. Mr Waters cannot be trusted to deal fairly within the system in which he practises and therefore the public need to be protected.
Based on Mr Waters' admissions by way of his signature on the minute of consent orders submitted to the Tribunal on 19 November 2014, the Tribunal was satisfied that the practitioner engaged in professional misconduct.
The Tribunal will transmit a report on its findings to the Supreme Court (Full Bench), with a recommendation for removal of the practitioner's name from the Roll.

Category: B

Representation:

Counsel:

Applicant : Ms P Le Miere
Respondent : In person

Solicitors:

Applicant : Law Complaints Officer
Respondent : N/A

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

Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56
Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119
Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58(S); (2012) 80 SR (WA) 134
Legal Profession Complaints Committee v in de Braekt [2013] WASC 124
The Council of the Queensland Law Society Inc v Wright [2001] QCA 58

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1 The Legal Profession Complaints Committee (Committee) made a referral to the Tribunal under s 428(1) of the Legal Profession Act 2008 (WA) (LP Act) in relation to a legal practitioner, Mr Kim Joseph Waters.

2 The Committee alleged that Mr Waters engaged in professional misconduct within the meaning of s 403 and s 438 of the LP Act in the course of acting for a client, Mrs H, in a claim for damages in respect of personal injuries she suffered in an accident, in that:

1. Between about July 2008 and about October 2012, Mr Waters did not progress the claim in a timely and competent manner;

2. Between about July 2008 and October 2012, Mr Waters did not take all reasonable and practical steps to keep Mrs H informed of significant developments and generally about the progress of her matter; and further, between 1 January 2011 to about October 2012, he did so in contravention of r 10(2) of the Legal Profession Conduct Rules 2010 (WA);

3. On or about 3 May 2012, whilst preparing, swearing and filing an affidavit, Mr Waters engaged in conduct which would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and confidence and conduct which, 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;

4. Mr Waters sent written communications to Mrs H and/or her husband, Mr H, on dates including, on or about 21 December 2011, on or about 25 February 2012 and on and about 7 May 2012, which included information that was false or misleading and with the intention of misleading Mrs H and/or Mr H;

5. On or about 10 September 2013 and 25 October 2013, Mr Waters knowingly attempted to mislead the Committee by preparing and sending to the Committee, letters that contained statements that were false.

3 The parties agreed in writing to settle the proceeding pursuant to s 56 of the State Administrative Tribunal Act 2004 (WA).

4 The terms of the agreement of 19 November 2014, submitted as a minute of consent orders, are (with two minor corrections to the text) as follows:

The Tribunal notes:

The Legal Profession Complaints Committee (the Committee) alleged that there is proper cause for disciplinary action against Mr Kim Joseph Waters (the practitioner) pursuant to s 438(1) of the Legal Profession Act 2008 (WA).

By a written agreement between the parties dated 19 November 2014, the parties agreed the terms upon which the proceedings could be settled.

The practitioner undertakes to not accept any new instructions from 24 October 2014.

The practitioner admits the statement of facts and contentions as set out in Annexures A of the Committee's application.

The Tribunal orders:

Being satisfied by reason of the practitioner's admission that proper cause exists for disciplinary action against the practitioner, and in order to give effect to the agreed terms of settlement of the proceedings, it is on 21 January 2015 ordered pursuant to s 56(1) of the State Administrative Tribunal Act 2004 (WA) that:

1. The practitioner, KIM JOSEPH WATERS (practitioner), between about July 2008 and about October 2012, in the course of acting for Mrs H in a claim for damages in respect of personal injuries suffered in an accident on 27 March 2008 at a 'Coles' supermarket (claim) engaged in professional misconduct within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) (LP Act) by not progressing the claim in a timely and competent manner by:


1.1 not paying for and obtaining until 5 September 2012 a copy of a medical report the practitioner had requested from Mrs H's treating orthopaedic surgeon Mr Anthony Geddes (Mr Geddes) when he should have paid for and obtained the medical report soon after receiving an invoice dated 3 February 2009;

1.2 without reasonable cause not responding to correspondence of 25 March 2009 from Wesfarmers Limited (Wesfarmers), who were managing the claim on behalf of Coles Supermarkets Australia Pty Ltd (Coles);

1.3 not following up until 11 June 2011, Mrs H's general practitioner, Dr Chester, the practitioner's request of 25 June 2008 to Dr Chester to provide a medical report;

1.4 sending a letter dated 9 June 2010 requesting a medical report from Mr Geddes without including payment for the medical report when he had again been told by Mr Geddes' office by telephone on 4 June 2010 that the medical report would not be released without prior payment of the invoice dated 3 February 2009;

1.5 not providing Mrs H with a copy of and advice regarding, Dr Chester's report of 21 June 2010 which he should have done;

1.6 not providing Mrs H with submissions in respect of her claim as promised by the practitioner at a meeting on 28 March 2011;

1.7 not providing the solicitor for Coles, Ms vanden Driesen (MVD), with a schedule of damages until 28 March 2012 which had been approved by Mrs H on about 22 December 2011;

1.8 not, following MVD's letter of 6 January 2012, attending to amending the Writ of Summons issued in the District Court of Western Australia (Court) proceedings No 997 of 2011 (proceedings) to remove an incorrectly named defendant until 25 June 2012;

1.9 without reasonable cause not responding to correspondence from MVD of 5 January 2012 and 13 February 2012;

1.10 not until 3 May 2012 filing a chamber summons seeking orders to remove Mrs H's matter from the Inactive Cases List (summons) when a summons should have been filed soon after the practitioner was notified it had been put on the Inactive Cases List on 5 April 2012;

1.11 without reasonable cause, not appearing on 21 May 2012 at the hearing of the summons listed on that day for hearing;

1.12. not advising Mr and Mrs H that the informal conference he informed them was arranged for 11 June 2012 would not take place;

1.13 not, without reasonable cause, in a timely manner, or at all, filing and serving a statement of claim;

1.14 not advising MVD that his instructions had been terminated by Mrs H on 25 October 2012.


2. The practitioner between about July 2008 and October 2012 in the course of acting for Mrs H in respect of the claim engaged in professional misconduct within the meaning of s 403 and s 438 of the LP Act by not taking all reasonable and practical steps to keep Mrs H, his client, informed of significant developments and generally about the progress of her matter and further between 1 January 2011 to about October 2012, did so in contravention of r 10(2) of the Legal Profession Conduct Rules 2010 by:

2.1 without reasonable cause, not returning telephone calls made by Mr H to the practitioner on behalf of Mrs H on:

2.1.1 7 July 2009;

2.1.2 16 July 2009;

2.1.3 22 July 2009; and

2.1.4 31 August 2011;


2.2 not contacting Mrs H at all between 20 June 2008 and 21 July 2009 and relevantly did not inform her:

2.2.1 of the receipt of a medical report from Joondalup Health Campus on 13 August 2008;

2.2.2 that a medical report was available from Mr Geddes on payment of his invoice dated 3 February 2009;

2.2.3 of Wesfarmers letter of inquiry dated 25 March 2009;


2.3 not responding to emails on the dates listed below from Mr H on behalf of Mrs H requesting information regarding when the practitioner had sent a statement of claim:

2.3.1 5 October 2012;

2.3.2 16 October 2012; and

2.3.3 22 October 2012;


2.4 not notifying Mrs H of the Inactive Cases List Notice issued 5 April 2012 and of the effect of District Court Rule 44E, in contravention of District Court Rule 44D(2);

2.5 not responding appropriately to the emails from Mr H of:


2.5.1 4 December 2011;

2.5.2 8 December 2011; and

2.5.3 10 February 2012;


2.6 not responding to Mr H's emails of:

2.6.1 7 May 2010;

2.6.2 26 June 2011;

2.6.3 5 August 2011;

2.6.4 13 August 2011; and

2.6.5 23 August 2011;


2.7 not reporting to Mrs H on 9 August 2011 as promised by the practitioner on 8 August 2011.

3. The practitioner on or about 3 May 2012 engaged in professional misconduct within the meaning of s 403 and s 438 of the LP Act in that his conduct would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and confidence, and 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 preparing, swearing and filing in the proceedings an affidavit dated 3 May 2012 (Affidavit):

3.1 in which he deposed that:

3.1.1 the Writ of Summons issued in the proceedings (Writ) was not served until 21 December 2012 as the parties were involved in discussions when there had been no discussions between the parties and no correspondence between the parties after the Writ was issued on 24 March 2011;

3.1.2 the delay in proceeding with the plaintiff's claim had been brought about by health issues unrelated to the plaintiff's claim when the plaintiff suffered no health issues that caused a delay in proceeding and other than the period from 28 March 2011 to 8 May 2011, the practitioner's instructions were to proceed with the claim.


3.2 which was false and misleading and had the potential to mislead the Court

3.3. further, that the practitioner knew was false and misleading and was filed by the practitioner with the intention of misleading the Court.


4. The practitioner, engaged in professional misconduct within the meaning of s 403 and s 438 of the LP Act in that his conduct would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and confidence, and 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:

4.2 on about 21 December 2011 sending an email to Mr H and Mrs H that was false and misleading in that it conveyed the impression that the practitioner had recently contacted Coles when he had not contacted Coles since March 2011 and that Coles was waiting for him to provide it with unavailable dates for an informal conference when it was not (21 December 2011 email);

4.3 further, sending the 21 December 2011 email in the knowledge it was false and misleading with the intention of misleading Mr and Mrs H;

4.4 on about 25 February 2012 sending an email to Mr H and Mrs H that conveyed the impression that:


4.3.1 the practitioner had rectified the legal issue that had prevented him proceeding with the claim in circumstances where the legal issue the practitioner was referring to was the need to amend the Writ and the Writ had not been amended;

4.3.2 the practitioner had only recently been informed the correct defendant was Coles when the practitioner had been informed by Coles who the correct defendant was by letter dated 24 March 2011;

4.3.3 further, the practitioner sent the 25 February 2012 email in the knowledge it was false and misleading with the intention of misleading Mr and Mrs H.


4.4 on about 7 May 2012 sending a letter to Mrs H (7 May 2012 letter) of that date that made statements that conveyed the impression that the reason the proceedings were placed on the Inactive Cases List was because the practitioner had been unable to take action in the matter while he was on leave and did not disclose that the reason the proceedings had been placed on the Inactive Cases List was because no action had been taken in the proceedings for more than 12 months from the date the proceedings had been commenced on 25 March 2011;

4.5 further, the practitioner sent the 7 May 2012 letter in the knowledge it was misleading with the intention of misleading Mrs H as to the reason the proceedings were placed on the Inactive Cases List.


5. The practitioner, engaged in professional misconduct on about 10 September 2013 and 25 October 2013 within the meaning of sections 403 and 438 of the Act by knowingly attempting to mislead the Legal Profession Complaints Committee (LPCC) by preparing and sending to the LPCC:

5.1 a letter dated 10 September 2013 that contained statements that were false in that the practitioner stated that:

5.1.1 he had a discussion in March 2011 with Mr David Coull (Mr Coull) the Liability Claims Manager at Wesfarmers to discuss the claim, when he had not;

5.1.2 after the writ in the proceedings was served the practitioner had a discussion with MVD, solicitor for Wesfarmers, about the claim and the named defendant on the writ, when he had not;

5.1.3 he had various discussions with Mr Coull and MVD regarding the claim when he had not.


5.2 a letter dated 25 October 2013 that contained statements that were false in that the practitioner stated that the substance of the discussions referred to in his letter to the LPCC dated 10 September 2013 were brief discussions centred initially around addressing liability and then subsequently around arranging an informal conference in circumstances where the practitioner did not have any discussions with Mr Coull or MVD.

6. The Tribunal make and transmit a report on the findings of professional misconduct to the Supreme Court of Western Australia (full bench) with a recommendation that the name of the practitioner be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008.

7. Pursuant to s 438(3)(a) of the Legal Profession Act 2008 (WA), the respondent's local practising certificate is suspended from 28 November 2014 until the determination of the Supreme Court (Full Bench).

8. The practitioner pay the applicant's costs fixed in the sum of $3,000.

9. The amount specified in order 7 is to be paid to the Legal Practice Board by the practitioner within 30 days or as agreed by the applicant.

5 The parties agreed that the matter be determined on the documents and therefore a hearing was unnecessary.

The legal principles

6 In Legal Profession Complaints Committee v in de Braekt [2013] WASC 124, the Full Court stated at [24] - [26]:

… The court's jurisdiction with respect to the regulation of the legal profession in this [S]tate is to be exercised with the interests and protection of the public, and the reputation of the legal profession as its primary objects, and not for the purpose of punishing the practitioner: Re Maraj (a legal practitioner) (1995) 15 WAR 12, 25 (Malcolm CJ, Kennedy and Franklyn JJ agreeing); Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279, 286 (Dixon CJ, McTiernan, Fullagar and Kitto JJ agreeing); Legal Profession Complaints Committee v Masten [2011] WASC 71 [16] (Martin CJ, Murray and EMHeenan JJ); Legal Profession Complaints Committee v Brennan [2010] WASC 198 [10] (Martin CJ, Murray and Hall JJ agreeing).

Where the motion is to strike a practitioner from the Roll, the critical question for the court is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner: Ziems (297 - 298) (Kitto J, Dixon CJ, McTiernan and Fullagar JJ agreeing); A Solicitor v The Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 at [15] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ); Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 at [43] (Steytler P, Wheeler JA and Newnes J). Fitness to practice law requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges: In re Davis (1947) 75 CLR 409, 420 (Dixon J); Legal Practitioners Complaints Committee v Thorpe at [43] (Steytler P, Wheeler JA and Newnes J); Legal Profession Complaints Committee v Brennan at [11] (Martin CJ, Murray and Hall JJ agreeing).

Striking off is an order reserved for very serious cases, where the character and conduct of the practitioner is seen to be 'inconsistent with the privileges of further practice': Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 [38] (Thomas JA, McMurdo P and White J agreeing). Integrity and honesty are essential characteristics expected of a practitioner, and therefore, the court has generally taken a very serious approach when dealing with dishonesty by a practitioner: Legal Profession Complaints Committee v Bachmann [2011] WASC 309 at [47] (Martin CJ, EM Heenan and Jenkins JJ); Legal Practitioners Complaints Committee v Palumbo [2005] WASCA 129 at [22] (Steytler P, Wheeler and McLure JJA agreeing); Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 at [69] (Parker J); Re Maraj (25) (Malcolm CJ, Kennedy and Franklyn JJ agreeing). In Barristers' Board v Darveniza, Thomas JA observed at [33] that:


[T]he quality most likely to result in striking off is conduct which undermines the trustworthiness of the practitioner, or which suggests a lack of integrity or that the practitioner cannot be trusted to deal fairly within the system which he or she practices.

7 In Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119, the Full Court said at [8]:

Honesty and integrity are considered essential prerequisites to the right to practise law. Conduct most likely to lead to a practitioner's name being struck off the roll of practitioners is that which undermines the trustworthiness of a practitioner or which suggests a lack of integrity, so that the practitioner cannot be trusted to deal fairly within the system in which he or she practises.

8 In Kylev Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 (Kyle) at [6], Ipp J stated:

It is the essence of a charge of unprofessional conduct involving misleading the court that the practitioner concerned is guilty of having done something dishonourable: see Re Cooke (1889) 5 TLR 407 at 408, per Lord Esher MR (with whom Fry and Lopes LJJ agreed). The dishonourable quality lies in knowingly misleading the court: see Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289 at 297, per Denning LJ; Vernon v Bosley (No 2) [1997] 3 WLR 683; [1997] 1 All ER 614. A practitioner who knowingly misleads a court will do so dishonestly. Therein lies the unprofessional conduct …

9 Parker J (with whom Ipp J, at [1], and Steytler J, at [22], agreed) held in Kyle at [66] that:

The duty of counsel not to mislead the court in any respect must be observed without regard to the interests of the counsel or of those whom the counsel represents. No instructions of a client, no degree of concern for the client's interests, can override the duty which counsel owes to the court in this respect. At heart, the justification for this duty, and the reason for its fundamental importance in the due administration of justice, is that an unswerving and unwavering observance of it by counsel is essential to maintain and justify the confidence which every court rightly and necessarily puts in all counsel who appear before it.

Analysis

10 The practitioner acted dishonestly and in breach of his duties as an officer of the Court.

11 The admitted misconduct that took place in relation to paragraphs 3, 4 and 5 of the consent orders involve intentionally misleading others in the practitioner's professional capacity.

12 The misconduct that took place in relation to paragraph 3 of the consent orders is of a particularly serious nature since it involves the filing of an affidavit sworn by the practitioner with the intention of misleading the Court.

13 Although the particular instances of misleading conduct were not all made to the same body or persons, the practitioner's misleading conduct occurred on six occasions. In addition, the misleading conduct occurred over an extended period of time: 21 December 2011 (paragraph 4.2 and 4.3), 25 February 2012 (paragraph 4.4), 3 May 2012 (paragraph 3), 10 December 2013 (paragraph 5.1) and 25 October 2013 (paragraph 5.2). The practitioner's conduct cannot be seen as an isolated act of misjudgement.

14 The practitioner's conduct is, therefore, serious because it is repeated (Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58(S); (2012) 80 SR (WA) 134 at [22] and [25]; The Council of the Queensland Law Society Inc v Wright [2001] QCA 58 at [67]).

Recommendation

15 The misleading conduct would of itself be sufficient to justify a recommendation to the Full Court that the practitioner be struck off.

16 In addition, the practitioner's other conduct is serious.

17 Every client is entitled to expect that a practitioner dealing with his or her claim will do so expeditiously. A practitioner has a duty to the client and to the court to progress a client's claim expeditiously. No reason was offered for the failure by the practitioner to progress the claim between July 2008 and October 2012.

18 Similarly, a client is entitled to be informed of the progress of his or her claim, irrespective of whether, or not, the client makes enquiries. Litigation is stressful. Keeping a client informed of the progress of a claim is one way of reducing the stress. A failure to keep the client informed of the progress of the claim may have reflected the fact that the practitioner was not progressing the claim. The practitioner repeatedly failed to respond to the client's enquiries. In this instance the practitioner not only failed to keep the client informed of his own volition, but failed to respond to the client's enquiries.

19 As a result of the conduct identified in the minute of consent orders, neither the court nor the client could have any confidence in the honesty or integrity of Mr Waters. Mr Waters cannot be trusted to deal fairly within the system in which he practises. Plainly, the public need to be protected. Mr Waters is not a fit and proper person to remain a legal practitioner.

20 It is to the credit of Mr Waters that he apparently recognises and accepts both the seriousness of his conduct and its consequences and has consented to the order set out above that the Tribunal transmit a report on its findings to the Supreme Court with a recommendation for removal of the practitioner's name from the Roll.

21 Based on his admissions by way of his signature on the minute of consent orders submitted to the Tribunal on 19 November 2014, we are satisfied and find that the practitioner engaged in professional misconduct within the meaning of s 404 of the LP Act in the way identified in paragraphs 1 to 5 of the consent orders set out above. We consider that the order proposed by the parties, namely, that the Tribunal transmit a report on its findings to the Supreme Court (Full Bench), with a recommendation for removal of the practitioner's name from the Roll, is an appropriate disposition of the matter by the Tribunal, and make the orders proposed by the parties.

22 These reasons constitute the report.

Orders

The Tribunal makes the following order:

1.Pursuant to s 438(4)(b) the Tribunal makes and transmits a report on the findings of professional misconduct to the Supreme Court of Western Australia (Full Bench) with a recommendation that the practitioner's name be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008 (WA).

2. The practitioner pay the applicant's costs in the sum of $3,000 to the Legal Practice Board within 30 days of this order unless other terms have been agreed by the applicant.

I certify that this and the preceding [22] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUSTICE J C CURTHOYS, PRESIDENT

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