LEGAL PROFESSION COMPLAINTS COMMITTEE and YOUNG - [2020] WASAT 29

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION:   LEGAL PROFESSION COMPLAINTS COMMITTEE and YOUNG [2020] WASAT 29
MEMBER:   JUDGE T SHARP, DEPUTY PRESIDENT
MS L EDDY, SENIOR MEMBER
MR J MANSVELD, MEMBER

HEARD:   12 SEPTEMBER 2019 AND 11 DECEMBER 2019
DELIVERED          :   9 MARCH 2020
FILE NO/S:   VR 230 of 2018
BETWEEN:   LEGAL PROFESSION COMPLAINTS COMMITTEE
Applicant
AND
NICOLE ANNE YOUNG
Respondent

Catchwords:

Legal practitioner - Professional misconduct - Unsatisfactory professional conduct - Penalty - Suspension - Reprimand - Costs

Legislation:

Legal Profession Act 2008 (WA), s 402, s 403, s 438, s 438(1), s 438(2), s 439(b), s 439(d)
Legal Profession Conduct Rules 2010 (WA), r 6(1)(b), r 6(2)(c)
State Administrative Tribunal Act 2004 (WA), s 55, s 87(1), s 87(2)

Result:

Practitioner reprimanded
Practitioner disqualified from applying for registration for six months
Costs awarded

Category: B

Representation:

Counsel:

Applicant	:	Mr M Howard SC
Respondent	:	Mr SM Davies SC

Solicitors:

Applicant	:	Legal Profession Complaints Committee
Respondent	:	N/A

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

Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165
Herron v McGregor & Ors (1986) 6 NSWLR 246
Hewett v Medical Board of Western Australia [2003] WASC 128
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Legal Profession Complaints Committee v Detata [2012] WASCA 214
Legal Profession Complaints Committee v Love [2014] WASC 389
Legal Services Commissioner v Rallis (Legal Practice) [2009] VCAT 714
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Quinn v Law Institute of Victoria Ltd [2007] VSCA 122
The New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177
Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction and background

Application

By an application to the Tribunal made by the applicant (Committee) and lodged on 4 December 2018, the Committee sought from the Tribunal:
a)orders to the effect that the Tribunal makes a finding that the respondent (Practitioner) had 'engaged in unsatisfactory professional conduct and/or professional misconduct' under s 438(1) of the Legal Profession Act 2008 (WA) (LP Act);
b)any other orders under s 438(2) of the LP Act; and
c)an order that the Practitioner pays the Committee's costs pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The grounds upon which those orders were sought were, in summary:
a)that the Practitioner on 7 April 2016 sent an email to the email address [email protected], with the salutation 'Dear Registrar', containing a representation which the Practitioner knew was misleading and deceptive; and
b)that the Practitioner 'in a telephone call with Ms A and, or, in a text message she sent to Ms A' conducted herself in a way which 'was intemperate, threatening, intimidating and/or discourteous, and had the potential to bring the profession into disrepute'.

Early proceedings in the Tribunal

On 19 December 2018, the matter was referred to mediation. That took place on 6 February 2019. The mediation did not result in a resolution of the matter and was thereafter terminated. A number of directions hearings followed, with a view to programing the matter for a final hearing.
However, at the directions hearing on 5 March 2019, the Committee advised the Tribunal that 'there's a reasonable likelihood that we will be able to agree a contravention order and facts'; ts 6-7, 5 March 2019. The Committee anticipated that the agreement would be as to misconduct only and that a hearing would be required in respect of the appropriate penalty and the award of costs.
The Committee subsequently wrote to the Tribunal on 25 March 2019 confirming that '[t]he parties have agreed a minute of consent orders and Schedule A agreed facts in respect to the conduct only. The matters of penalty and costs are not agreed and programming for a hearing in respect to those matters will be required'.

Minute of proposed consent orders

The minute referred to (Minute) takes the form of a proposed order to be made by the Tribunal '[o]n the application of the parties to settle the proceedings …'. The Minute provides that '[b]y agreement between the parties on 25 March 2019 the parties agreed the terms upon which the proceedings could be settled'. The Minute includes the statement that the parties had agreed the facts as set out in the Schedule A attached to the Minute.
The Minute then sets out the two findings which the parties agree that the Tribunal should make. The proposed findings are as follows:
1)the Practitioner on or around 7 April 2016 engaged in professional misconduct within the meaning of s 403 and s 438 of the LP Act, by preparing and sending from her work email address an email to the Registrar seeking access to 'decisions' made in the District Court of Western Australia in relation to an offender, Mr B, who was sentenced on 4 April 2016, as well as a copy of the sentencing decision (Decisions), which email represented that the Practitioner was making the request in the course of her practice of law in respect of matters concerning the admissibility of DNA evidence, where the Practitioner knew that the representation was misleading and deceptive but the Practitioner nonetheless intended the Registrar to rely on that representation; and
2)the Practitioner engaged in unsatisfactory professional conduct within the meaning of s 402 and s 438 of the LP Act in that her conduct in a telephone call with Ms A and, or, in a text message she sent to Ms A, fell short of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and was intemperate, threatening, intimidating and/or discourteous, and had the potential to bring the profession into disrepute.

Agreed facts

The Schedule attached to the Minute which sets out the agreed facts is in the following terms (the Practitioner being referred to in the Schedule as 'the practitioner'):
SCHEDULE A
1.At all material times, the practitioner:
1.1.was an Australian legal practitioner within the meaning of the [LP Act];
1.2.prior to 29 April 2016, practised in criminal and employment law at HHG Legal Group, Perth (firm);
1.3.as at 5 May 2016, was not practising, but intended to practise, and in fact on 9 May 2016, commenced practice, at the Aboriginal Legal Service of Western Australia (Inc), in Perth, Western Australia.
2.The practitioner's father and brother practised together as real estate agents in an area of Perth.
3.Ms A (Ms A), who was also a real estate agent in the same area of Perth as the practitioner's family, competed for listings with the practitioner's family and lived next door to the practitioner's father and in the same street as the practitioner's brother.
4.The practitioner had known Ms A and her husband (Mr B) since 2011, having herself previously lived next door to them (at her father's home) for a period of time at about that time.
5.Sometime in or about April 2016, the practitioner's family and     Ms A were engaged in a corrosive personal dispute, in which, relevantly, each family was alleging the other to be making defamatory remarks against them in the local community.
6.Between 16 and 23 February 2016, Mr B stood trial before a jury in the District Court on an indictment alleging historic offences from 25 years prior, namely:
6.1.one count of breaking and entering of a dwelling with intent to commit an offence;
6.2.one count of deprivation of liberty;
6.3.one count of sexual penetration without consent; and
6.4.two counts of aggravated unlawful and indecent assault,
which charges arose from a cold case investigation in which the DNA available from evidence obtained at the time of the offences in 1992 was later matched to Mr B (together, the criminal matters).
7.During the course of the trial of the criminal matters, Ms A gave alibi evidence in defence of Mr B to the effect that she and Mr B were living in their home at a certain suburb at the time of the alleged offences and where the alleged offences were said to have been committed on a Thursday night, she and Mr B would have been shopping together as was their custom (Ms A's alibi evidence).
8.Following the trial, Mr B was:
8.1.acquitted of the offence of sexual penetration without consent; and
8.2.convicted of:
(a)one count of breaking and entering of a dwelling with intent to commit an offence;
(b)one count of deprivation of liberty; and
(c)two counts of unlawful and indecent assault (absent any circumstances of aggravation).
9.On 4 April 2016, following sentencing submissions made that day, Mr B was sentenced to imprisonment for a period of five years and six months with eligibility for parole after having served a period of three years and six months' imprisonment.
10.On around 5 April 2016 following being informed by her father that he had heard on the radio that a person of the same name as Mr B had been convicted of a 1992 "rape" and sentenced to imprisonment, the practitioner then had regard to an online news article about the sexual assault conviction, following which the practitioner, at all material times, suspected that the alleged offender was in fact Mr B.
11.On 7 April 2016 the practitioner prepared and sent from her work email address "[email protected]", using the signing clause of "Nicole Young Associate", and the HHG Legal Group corporate logo, an email to the email address "[email protected]" addressed to "Registrar" in which she stated:
"I am interested in obtaining access to the decisions made in relation to [name of offender] who was sentenced on 4 April 2016.
I am only aware of the decision due to this news article [ … ]
I am interested to research any argument and subsequent ruling about the admissibility of the DNA evidence that seems to have been key to the conviction. I do not know which hearing would be most relevant to the inquiry.
I would be very grateful if you could indicate which hearing would be most relevant.
I would also like a copy of the sentencing decision delivered on     4 April 2016.
Can you please indicate what the costs of obtaining these transcripts will be?
Lastly, I do have access to the PLEAS database at the Supreme Court library however I do not think that this decision is likely to be put into that database. If I am incorrect about this please let me know as I can wait if the information will eventually be available."
(the transcript application email)
12.Non-parties may apply to the Court for leave to inspect or obtain a copy of the record or certified transcript of any proceedings in a case pursuant to Rule 51 of the Criminal Procedure Rules 2005, which relevantly at:
12.1.subrule (2A) provides that (in the practitioner's circumstances as a non media organisation) the application must be made in writing to the court and must set out the grounds of the application;
12.2.subrule (4A) provides that a judge or a registrar may deal with a written application; and
12.3.subrule (5) provides that a judge or registrar dealing with a written application, if satisfied the applicant has sufficient cause to be granted leave, may grant the application.
13.The transcript application email represented that the practitioner was making the request in the course of her practice of law in respect of matters concerning the admissibility of DNA evidence (Representation), which Representation was made in part by the practitioner's use of her work email address ("[email protected]"); her work signing clause "Nicole Young Associate"; the presence of the HHG Legal Group corporate logo; and her reference to having access to the PLEAS database when making the request.
14.The Representation was misleading and deceptive in that the practitioner was not motivated to seek the Decisions for the stated purpose but was motivated to seek them for the purpose of confirming that the identity of the offender was in fact Mr B, the husband of Ms A, which the practitioner failed to disclose in her email.
15.The practitioner knew that the Representation was misleading and deceptive.
16.By sending the transcript application email, the practitioner intended the Registrar to rely on the Representation.
17.The practitioner was recklessly indifferent as to whether the Registrar would be misled or deceived by the Representation.
18.Further, the practitioner did nothing to correct the Representation to the Registrar.
19.In making the Representation in the circumstances set out in paragraphs 14 to 18 above, the practitioner's conduct:
19.1.fell short, by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence;
19.2.would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence;
such that her conduct is professional misconduct within the meaning of sections 403 and 438 of the LP Act.
20.Sometime after 21 April 2016 but on or before 5 May 2016, the practitioner read and considered the transcript, from which she was able to inform herself about the criminal matter, including:
20.1.the identity of the offender, being Mr B;
20.2.the charges for which Mr B was tried;
20.3.the charges of which Mr B was convicted;
20.4.the charge of which Mr B was acquitted;
20.5.the evidence that Ms A gave during the course of the trial; and
20.6.the factual basis upon which Mr B was sentenced.
21.A copy of the transcript, redacted to remove references that would disclose the identity of Mr B or Ms A has been provided to the Tribunal.
22.The transcript recorded that, in the course of making his sentencing remarks on 4 April 2016, the sentencing judge:
22.1.re-stated the jury's verdicts following the trial of the criminal matter, including that "the jury acquitted you of count 5 on the indictment, being the offence of aggravated sexual penetration without consent".
22.2.summarised Mr B's evidence that he denied that he knew the victim and denied committing any of the offences charged by way of the Indictment;
22.3.summarised Ms A's alibi evidence as outlined in paragraph 7, above;
22.4.stated that the jury was instructed that if they accept         Mr B's evidence or thought as a reasonable possibility that it might be true then they should acquit; but
22.5.did not make any findings as to the credibility of Ms A or her evidence; and
22.6.did not comment any further in relation to Ms A's evidence given during the course of the trial of the criminal matter.
23.On 5 May 2016, the practitioner received a telephone call from her father, who reported to the practitioner that an exchange had taken place between him and Ms A by telephone earlier that day along the lines that:
Ms A: "I know what you have been doing - telling everyone my husband is a rapist."
Practitioner's father: "Well he is [Ms A] - he is"
Ms A: "No he isn't and you will be getting a letter from my lawyer. You want war - you've got war!"
Practitioner's father: "Is that a threat [Ms A]?"
Ms A: "Yes it is."
Practitioner's father: "Well what does it even mean?"
Ms A: "You'll find out."
24.On 5 May 2016, the practitioner telephoned Ms A, but did not reach her, and left a message requesting that Ms A return her call.
25.Later on 5 May 2016, in circumstances where Ms A had not returned her call, the practitioner again telephoned Ms A and had a brief conversation with her (the telephone conversation), during which the practitioner made the serious allegation that:     Mr B was "a rapist".
26.In the telephone conversation, the practitioner conducted herself in a manner that was rude, offensive, insulting, intemperate, provocative, and discourteous to Ms A by communication with her using words in effect as follows:.
Practitioner: "Hello is that [Ms A] ?"
Ms A:     "        Yes"
Practitioner "Hi [Ms A], my name is [Practitioner]. I am actually [practitioner's father]'s daughter
Ms A: "Oh yes?"
Practitioner: "[Ms A], my father has called me this morning very distressed after receiving a call from you in which you apparently made some threats?"
Ms A "Yes, that's right."
Practitioner: "O.K. Well what's this all about [Ms A]?"
Ms A: "He has been defaming me - going around saying despicable things about my husband that are just not true, trying to ruin my business and cost me money."
Practitioner: "Well, hang on as I understand it [Ms A], all my father has been saying is that your husband is a rapist and is in jail."
Ms A: "Yes - and he is not!"
Practitioner: "Wait are you saying he is not a rapist or not in jail?"
Ms A: "Both. You should get your facts straight. I know you [Practitioner]. I know you are a lawyer and you are just as foul and stinking as your father and brother. Your whole family is vile. You'll hear from my lawyer."
Practitioner: "OK - you have a lawyer do you? What is his name?"
Call truncated by Ms A
27.Following the telephone conversation, on 5 May 2016                  (at approximately 3.05pm) the practitioner sent a text message to Ms A as follows:
"Further to our conversation a moment ago I repeat that I am concerned that you are making verbal threats to my father and have made harassing and offensive remarks by calling my brother and myself "foul and stinking". Further you have threatened "war" - whatever that means and outright lied by stating that your husband is not a rapist and not in jail. You are a liar [Ms A] and your husband is a rapist. You are a very poor judge of character. We are aware you have attempted to discredit my father and brother publicly notwithstanding your criminal associations.         A normal person would hang their head in shame not lie on the stand to protect a rapist. We look forward to your letter from an unknown lawyer and suggest you ensure you do NOT make any further threats lest we are forced to seek the protection of the Courts. Luckily your rapiat (sic) husband IS locked up [Ms A]. But you are not (yet). Seek some legal advice and in yhe (sic) mean time any further telephone contact with my father or brother should immediately cease. I represent them. Have your lawyers call me. Oh and think about a divorce. He raped a woman [Ms A]. While he was married to YOU. Horrific that you continue to deny that and slander MY family" (the text message).
28.In the text message, the practitioner stated that:
28.1.Mr B was "a rapist",
28.2.Ms A was "a liar" in asserting that Mr B was not              "a rapist";
28.3.Ms A had lied on oath at the hearing of Mr B;
when the practitioner was recklessly indifferent as to whether or not there were reasonable grounds to make those allegations.
29.In the text message, the practitioner conducted herself in a manner that was rude, offensive, insulting, intemperate, provocative, and discourteous to Ms A.
30.In both the telephone call and the text message, on 5 May 2016, the practitioner purported to act, and held herself out as acting, for her father and brother.
31.The practitioner, in the telephone call and the text message, engaged in unsatisfactory professional conduct within the meaning of sections 402 and 438 of the LP Act in that her conduct fell short of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and was intemperate, threatening, intimidating and/or discourteous, and had the potential to bring the profession into disrepute.
32.Further, the content and tone of the telephone call and the text message to Ms A was offensive, intemperate, provocative, intimidating and discourteous and in breach of the practitioner's obligations under rule 6(1)(b) of the Legal Profession Conduct Rules 2010 (Conduct Rules).
33.Further, the practitioner's conduct in the telephone call and the text message was such that it may bring the profession into disrepute in breach of Conduct Rule 6(2)(c).

Further proceedings in the Tribunal

The matter then came before the Tribunal at a further hearing on 7 August 2019. The purpose of the hearing was to advise the parties that the Tribunal would make orders in terms of the Minute, and to list the matter for a final hearing to deal with the issue of penalty and costs. However, at the outset of that hearing, the Practitioner sought a further adjournment, telling the Tribunal that she anticipated that she might withdraw her consent to the making of orders in terms of the Minute.
As a consequence, the Tribunal made orders that, amongst other things, the Practitioner must advise the Tribunal by 14 August 2019 as to whether her consent to the making of the orders in terms of the Minute is withdrawn. The matter was listed for a further directions hearing before the President, on 20 August 2019.
On 16 August 2019, the Practitioner, through counsel, informed the Tribunal by email that she no longer intended to withdraw her consent.
At the next directions hearing, which was adjourned by the President and in fact took place on 27 August 2019, the Tribunal ordered that the Practitioner file by 9 September 2019 her written submissions on penalty and costs and any documents on which she intends to rely.
The matter finally came before the Tribunal on 12 September 2019, when the Tribunal asked for and received from both parties their express confirmation that the parties still wished the Tribunal to make orders in terms of the Minute. The parties so confirmed (ts 23 and 29, 12 September 2019) and the Tribunal made orders in the form of the Minute, including the agreed facts, on that date (Tribunal's conduct orders). The parties were then heard over two days on the issue of penalty and costs, the first day on 12 September 2019 and concluding on 11 December 2019.

Principles to be applied penalty

It is well established that the purpose of disciplinary proceedings against a legal practitioner is to protect the public; Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (Khosa) at [37]. As Buss P went on to say in Khosa, the purpose is not to punish the practitioner in the sense in which punishment is imposed under the criminal law. The public is protected by the making of orders which will prevent a person who is unfit to practise from practising or by the making of orders which will secure the maintenance of proper professional standards. Both the public and the legal profession will be protected by orders which will assure the public and members of the legal profession generally that appropriate standards are being maintained within the profession.
Murphy and Beech JJA agreed, saying that the protection of the public includes both personal deterrence, as well as general deterrence of other practitioners who might otherwise be tempted to engage in such conduct; Khosa at [189].
Because the purpose of making penalty orders, in the context of the regulation of the legal profession, is the protection of the public by the maintenance of proper standards within the profession, the impact which an appropriate penalty would have upon a practitioner guilty of misconduct and personal hardship to that practitioner are necessarily secondary considerations; Legal Profession Complaints Committee v Detata [2012] WASCA 214 at [47]. The weight given to personal circumstances cannot override the Tribunal's fundamental obligation to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of legal practice; Legal Profession Complaints Committee v Love [2014] WASC 389 at [59].
It follows that the effect of orders made may involve greater deprivation to the person disciplined than if punishment alone was the sole purpose of the orders; The New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 (Evatt) at 183-184.
A practitioner's failure to understand the error of his or her ways of itself demonstrates his or her unfitness to belong to a profession where, in practice, the client must depend upon the standards as well as the skill of his professional advisor; Evatt at 184. The lack of appreciation of impropriety and the lack of insight increases the risk of recurrence of the improper conduct; Khosa at [193].
Where the practitioner lacks the character and trustworthiness necessary to discharge the responsibilities of legal practice, or the practitioner is permanently or indefinitely unfit to practice, striking off rather than suspension will (at least ordinarily) be the appropriate response; Khosa at [192]. However, a suspension order may also be a valuable measure by way of general or personal deterrence for the protection of the public and the maintenance of the reputation and standards of the legal profession, even without concluding that the conduct demonstrated or should be characterised as indicating that the practitioner was not a fit and proper person. A suspension order entails greater denunciatory and deterrent effect than a reprimand and fine; Khosa at [194].
In Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202, the Court said, at [60], that whether a penalty of suspension is appropriate must always depend upon the facts of the particular case. There can be no hard and fast rules, even in cases where a practitioner is found intentionally to have misled a court.
Where there is a choice of sanctions, the Tribunal will choose the sanction which maximises the protection of the public; Quinn v Law Institute of Victoria Ltd [2007] VSCA 122 at [31].
Fitness to practice for the purpose of penalty orders is to be determined at the time of the relevant hearing, and not at the time of the misconduct. The same is true of the question of the appropriate penalty generally; Khosa at [195].

Disposition - penalty

It is not in dispute that the Practitioner has been admitted to practice since December 2003, that she has not held a practising certificate in Western Australia since 1 July 2018 and she has not practised as a legal practitioner in Western Australia since 5 January 2018.
We also accept that the Practitioner has no previous disciplinary findings against her.
The Tribunal has found that the Practitioner is guilty of:
1)professional misconduct by knowingly making a misleading and deceptive representation in an email to the District Court; and
2)unsatisfactory professional conduct in a telephone call and in a text message to Ms A, the Practitioner being recklessly indifferent as to whether there were reasonable grounds to make such allegations and where her conduct was intemperate, threatening, intimidating and discourteous in breach of the Practitioner's obligations under r 6(1)(b) of the Legal Profession Conduct Rules 2010 (WA) (Conduct Rules) and under r 6(2)(c) of the Conduct Rules in that her conduct in the telephone call and the text message was such that it may bring the profession into disrepute.
The Tribunal accepts that the conduct arose in respect of a matter which was of personal interest to the Practitioner and that her conduct may be viewed as being limited to the specific circumstances of her dealings with Ms A. However, a practitioner in any circumstances owes a duty of candour and honesty to the Court. The Practitioner's counsel made submissions to the effect that it is of relevance that the transcript request was dealt with by a clerk or by a Registrar of the Court and not a Judge. Whether that is in fact correct, and the Tribunal does not know whether that is or is not the case, in the Tribunal's view, a practitioner's duty is not limited to judicial officers but extends also to other court officers engaged in the administration of justice.
In our view, and we accept the Committee's submission to this effect, the Practitioner's conduct was prejudicial to, and diminished public confidence in, the administration of justice and had the potential to bring the legal profession into disrepute. We have found that her conduct constitutes a breach of the Conduct Rules and we entirely accept the Committee's observation that this conduct reflects adversely on the propriety of the legal profession as a whole.
The Practitioner's counsel made submissions drawing a distinction between intention, motive or reason on the one hand and the ground on which something is done on the other hand, and sought to rely on this difference to submit that the Practitioner's conduct was less serious in this case because, although her given reason for wanting the transcript was misleading, she in fact had a legitimate ground for receiving the transcript and could have obtained it lawfully in any event. It was submitted that if the Practitioner thought, in her own mind, that she was properly entitled to the transcript, although she did not want it for the reason that was given in the request, the fact that she did have a ground for obtaining the transcript should render the Practitioner's conduct less serious.
The Tribunal has some difficulty with this submission. We accept that the distinction between the ground on which something is done and the reason, intention, motivation or purpose subjectively held by the person acting is important in matters arising out of discrimination legislation; Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165. However, that distinction arises under particular legislation having a specific purpose, which is different to the legislation under which we must determine this matter.
The Practitioner relies on the comments in Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 526-527 where their Honours Mason CJ and Dawson, Toohey and McHugh JJ said this:
The observations of the Privy Council in King v. Henderson and those of Isaacs J. in Dowling, to which we referred earlier, represent an attempt to achieve a formulation which keeps the concept of abuse of process within reasonable bounds. To say that a purpose of a litigant in bringing proceedings which is not within the scope of the proceedings constitutes, without more, an abuse of process might unduly expand the concept. The purpose of a litigant may be to bring the proceedings to a successful conclusion so as to take advantage of an entitlement or benefit which the law gives the litigant in that event.
Thus, to take an example mentioned in argument, an alderman prosecutes another alderman who is a political opponent for failure to disclose a relevant pecuniary interest when voting to approve a contract, intending to secure the opponent's conviction so that he or she will then be disqualified from office as an alderman by reason of that conviction, pursuant to local government legislation regulating the holding of such offices. The ultimate purpose of bringing about disqualification is not within the scope of the criminal process instituted by the prosecutor. But the immediate purpose of the prosecutor is within that scope. And the existence of the ultimate purpose cannot constitute an abuse of process when that purpose is to bring about a result for which the law provides in the event that the proceedings terminate in the prosecutor's favour.
It is otherwise when the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers. So, in Dowling, Isaacs J. pointed out that "if, for instance, it had been shown that the Society had simply threatened Dowling that unless he did what they had no right to demand from him, namely, give up certain names, they would proceed to sequestration, and they had proceeded accordingly, there would have been in law an abuse of the process". However, because the Society wished to use the process for the very purpose for which it was designed, there was no abuse of process.
We do not consider that these comments, concerning the relevance of an immediate purpose, as opposed to an ultimate purpose, when determining if a matter is an abuse of process, are apposite to the issues before the Tribunal in these proceedings.
In any event, we are not persuaded that even if the Practitioner genuinely thought she was entitled to have the transcript but chose to give the Registrar a different reason for obtaining the transcript, this lessens in any way the seriousness of the Practitioner's conduct. Rather, we consider this submission might show some lack of insight by the Practitioner in relation to her conduct.
Notwithstanding that submission, the Practitioner has acknowledged and accepted that the relevant email to the Registrar should have stated what was motivating her to seek the transcript and ought to have included all of the reasons for her request.That, and the fact that the Practitioner agreed to the making of the Tribunal's conduct orders, suggests to the Tribunal that the Practitioner does in fact have insight into her wrongdoing which leads the Tribunal to the conclusion that the risk of recurrence of the conduct is small.
The Practitioner submits that the context in which the conduct occurred, that is, in a personal context rather than a professional one, is a matter of substance that should be taken into account in determining the appropriate penalty. She submits that:
This context is important for, inter alia, the following reason:
(a)The pressures that come to bear that can influence behaviour in professional life are not the same as the pressures that come to bear on a person that can influence behaviour in private life.
(b)Professional life involves work concerning third parties, there the necessary objectivity, proportion and judgment are materially easier to achieve and maintain than is the case in relation to a person's own affairs and the affairs of a person's own family and friends.
(c)As a result, a person's behaviour in or connected with their private life may not be, and may even be unlikely to be, reflective or predictive of the personal's [sic] actual or likely behaviour in professional life.
(d)In such circumstances, for the protection of the public the necessary response to conduct that occurred in relation to a person's private life will often be very much less than the response to conduct that occurred in a person's professional life.
(e)In the circumstances, including each of the steps often referred to the applicant's correspondence as 'mitigation', no more may be required than confidence that the person accepts the undesirability of professionally representing or advising themselves or their family or friends and understands the reasons that is so.
In relation to the telephone call and text message conduct, the Tribunal accepts that the fact that the conduct occurred in the Practitioner's personal life does bear to some extent on the seriousness of the conduct. However, the misleading conduct occurred while the Practitioner was in her work office, using her work email and involved the use of her legal skills. In this context, we are not persuaded that the fact that she was conducting herself personally makes any difference at all to the seriousness of the conduct or to the determination of the penalty.
The Practitioner further submits that factors relating to the conduct of the Committee in dealing with the complaints against the Practitioner should be taken into account when determining the appropriate penalty. In summary, she makes the following submissions.
She says that there was extensive and inordinate delay by the Committee in the course of investigating and bringing proceedings against the Practitioner and that the Committee has a statutory obligation to proceed expeditiously. In this case, the Committee held back determination of how to deal with the conduct in order to consider also another complaint against the Practitioner at the same time, which has since not been proceeded with. The Practitioner says that the Committee should not act in this way. The delay itself caused considerable stress on the Practitioner. The delay, and its impact on the Practitioner, she says, should be taken into account in determining the appropriate penalty in this case.
The Tribunal was taken extensively through the documents before it. Based on these documents, the Tribunal finds that there was some delay caused by the Committee in the course of its investigation and its determination to commence proceedings in the Tribunal. An affidavit sworn by an employee of the Committee was not relied upon by the Committee in these proceedings (ts 22, 7 August 2019) and therefore the Tribunal has no evidence in relation to the cause of that delay.
The Practitioner says that the Committee did not disclose relevant and significant documents that were capable of assisting the Practitioner's case until after it had secured the Practitioner's agreement to the Minute. The Practitioner submits that the Tribunal should have regard to the documents that she provided to the Tribunal, that show the course of the negotiations between the parties, in determining the relevance and weight of the failure to disclose the documents to her prior to this time.
There are two difficulties with those submissions. Firstly, pursuant to s 55 of the SAT Act, evidence of anything said or done in the course of mediation is not admissible at any later stage of the proceedings unless one of three specified exceptions apply. None of those exceptions apply in this matter. The Tribunal is prohibited from having regard to the documents the Practitioner wished to rely on.
Secondly, as indicated in the summary of the course of the proceedings set out earlier in these reasons, after the parties had completed negotiations and agreed to the terms of the Minute, and after the Committee had disclosed the documents to the Practitioner, the Practitioner was given an opportunity to withdraw her consent and she chose not to do so.
The Tribunal considers that it would ordinarily be appropriate for both parties to have access to any relevant documents that exist, that are not the subject of legal professional privilege, and that the Practitioner does not readily have access to, but would have had access to had the Practitioner not been the subject of an investigation, prior to the resolution of any agreement about the Practitioner's conduct.
The Practitioner submits that one of the Committee's officers, whilst investigating the initial complaint against the Practitioner, was inappropriately pejorative and intemperate and this also caused the Practitioner to suffer adverse consequences.
The Practitioner then submits that, as a consequence of the Committee's inappropriate behaviour during the course of the investigation and proceedings against the Practitioner, this should result in there being no penalty imposed against the Practitioner, and she should not have to pay the Committee's costs of these proceedings. Counsel for the Practitioner submitted that 'deterrence is a two way street'; ts 77, 11 December 2019. The Practitioner says that the Tribunal should send the regulator a message that the Committee's conduct in this matter is not acceptable. In addition, the mental health consequences of the Committee's behaviour and the financial impact she has endured by not being able to work until the proceedings have been determined, should be taken into account in determining the penalty. Further, the amount of costs, given that the Practitioner had made an early admission of her guilt, is in the Practitioner's view disproportionate and implicitly must have been contributed to by the need for the Committee's counsel to advise them in relation to their inappropriate handling of this matter.
The Tribunal's response to the submissions made in relation to the Committee's conduct is that the Tribunal does not have any statutory authority or oversight of the Committee. The Tribunal accepts that there are some circumstances where delay by the regulating body may cause the resultant proceedings to be oppressive and unfair so as to allow for a stay of any such proceedings to be granted; Herron v McGregor & Ors (1986) 6 NSWLR 246; Hewett v Medical Board of Western Australia [2003] WASC 128.

We also accept that a Tribunal, in another State, has determined that an unexplained and inexplicable delay can impact on the appropriate penalty; Legal Services Commissioner v Rallis (Legal Practice) [2009] VCAT 714 (Rallis). However, as the matter was not fully ventilated in these proceedings, the Tribunal does not consider that this is an appropriate case in which to determine whether we should apply the decision in Rallis, or the question of whether the personal impact on a practitioner of an unexplained delay in bringing a complaint against the practitioner is a factor relevant to determining an appropriate penalty. We note, as was submitted by the Committee in its written submissions:
Further, the weight to be given to a practitioner's personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of practice.
(Committee's Substituted Submissions dated 29 July 2019 at para 30.2.)
Turning next to whether the Practitioner's conduct should attract a global penalty, the Tribunal has made two findings against the Practitioner. The first was that the Practitioner engaged in professional misconduct by making a misleading and deceptive representation to a Registrar of the District Court, and the second that the Practitioner engaged in unsatisfactory professional conduct in her dealings with Ms A. The Committee considers that this is a case where it may be appropriate to impose a global penalty.
There are cases where the relevant misconduct is constituted by a course of behaviour or where the facts of the case are so inextricably interwoven as to make it difficult to meet a clear standard of prescription. However, the Tribunal does not consider that this is such a case and we will apply a separate penalty for each finding against the Practitioner.
With regard to the finding of unsatisfactory professional conduct in her dealings with Ms A, the Tribunal considers that the Practitioner should be reprimanded pursuant to s 439(d) of the LP Act.
With regard to the finding of professional misconduct by making a misleading and deceptive representation to a Registrar of the District Court, while the Tribunal accepts that the Practitioner has shown insight into her conduct, it is nonetheless important that the Tribunal shows its strong disapproval of her conduct. The Tribunal has decided that the appropriate penalty in respect of this finding by the Tribunal against the Practitioner is that a local practising certificate not be granted to the Practitioner for a period of six months pursuant to s 439(b) of the LP Act.
However, with regard to the latter order, given the significant impact on the Practitioner's mental health (in relation to which the Tribunal has independent evidence) of the Committee's delay in commencing these proceedings, her voluntary exclusion from practising within the legal profession since January 2018 and her early admissions in relation to her conduct, the Tribunal considers that it is appropriate to determine that the penalty should commence on 7 August 2019, the date when the hearing on penalty and costs was first scheduled to take place.
The Tribunal does not accept the Committee's submission that an order should also be made that the Practitioner has a condition imposed on her practising certificate, when granted, that she be mentored for one year. The Tribunal has already observed that the Practitioner has shown insight into her conduct and we do not consider that the further penalty proposed is necessary or appropriate.

Principles to be applied - costs

Under s 87(1) of the SAT Act, parties generally bear their own costs in a proceeding of the Tribunal. However, s 87(2) confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party.
As noted in Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) (Roberman) at [30], where a regulatory authority successfully brings a complaint of conduct which, if proved, justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. Vocational regulatory bodies 'perform a function which promotes the public interest, and usually with limited resources' and '[t]he financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned as properly and thoroughly presented'.
This passage in Roberman was referred to with approval in Paridisv Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [35].
In Western Australian Planning Commission v Questdale Holdings PtyLtd [2016] WASCA 32 at [49]-[51] Murphy JA made the following comments:
49Although s 87(2) does not in terms say that the discretion is to be exercised if it is fair and reasonable in all the circumstances of the case to do so, the judicial nature of the exercise and the scheme of the SAT Act indicates that, broadly speaking, that is the legislative intention.
50Unlike in curial litigation, the 'important principle commonly referred to as the "usual order as to costs"', under which the successful party is prima facie entitled to his or her costs, has no application given the presumptive position or starting point under s 87(1) of the SAT Act that each party is to bear its own costs.
51Section 87(2) is to be construed in the context that the legal rationale for an order for costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. That rationale is evident in s 87(3) of the SAT Act. Accordingly, even in a statutory context where the presumptive position is that no costs will be ordered, generally speaking, the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The onus is on the party seeking an order in its favour.
Thus the ultimate question to be determined when considering the application for costs is whether it is fair and reasonable that the party be paid its costs.

Disposition - costs

The Tribunal has considered the Committee's request and concludes that it is open to the Tribunal to make an award of costs in favour of the Committee.
The Committee is seeking an award of costs in the amount of $20,000. The Committee says, and the Tribunal accepts, that this amount does not include any costs of the Committee itself and is limited to only some of the amount disbursed by the Committee in counsel fees. We accept that this represents a significant discount of the fees actually incurred by the Committee.
The parties reached agreement in relation to the conduct at a relatively early stage in the proceedings. They could not reach agreement about the appropriate penalty that applied in relation to that conduct. It was the Practitioner who was the party responsible for wanting an oral hearing and who has lodged and served a voluminous number of documents. The hearing was adjourned a number of times after the first hearing was adjourned, largely because of the Practitioner's late lodgement of documents. The Practitioner's counsel also took up most of the time allocated over two days of hearing time on the penalty issue. In all of those circumstances we consider that it is fair and reasonable that the Committee is reimbursed to the extent sought, namely $20,000, and will so order.

Orders

1.The Tribunal upon its finding that the respondent is guilty of unsatisfactory professional conduct orders that pursuant to s 439(d) of the Legal Profession Act 2008 (WA), the respondent is publicly reprimanded.
2.The Tribunal upon its finding that the respondent is guilty of professional misconduct orders that pursuant to s 439(b) of the Legal Profession Act 2008 (WA), the respondent is not to be granted a local practising certificate for a period of 6 months commencing on 7 August 2019.
3.Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the Tribunal orders that the respondent must pay the applicant's costs fixed at $20,000 within 30 days of the date of this order or as otherwise agreed between the respondent and the applicant.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE T SHARP, DEPUTY PRESIDENT
9 MARCH 2020