Legal Profession Complaints Committee v Love
[2014] WASC 389
•28/10/14
LEGAL PROFESSION COMPLAINTS COMMITTEE -v- LOVE [2014] WASC 389
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 389 | |
| FULL BENCH | |||
| Case No: | LPD:2/2014 | 23 SEPTEMBER 2014 | |
| Coram: | BEECH J KENNETH MARTIN J EDELMAN J | 28/10/14 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Order for removal from the roll | ||
| B | |||
| PDF Version |
| Parties: | LEGAL PROFESSION COMPLAINTS COMMITTEE DEAN RICHARD LOVE |
Catchwords: | Legal practitioners Solicitors Application for removal from roll of legal practitioners Whether fit and proper person to be a legal practitioner Online legal application form Practitioner causing website to be set up so as to mislead potential clients into believing they were applying to Legal Aid Practitioner receiving application from potential client and causing application to be made to Legal Aid so as to include deliberately false statement Whether appropriate remedy is removal from the roll of practitioners |
Legislation: | Legal Profession Act 2008 (WA), s 444 |
Case References: | A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 Archer v Howell (1992) 7 WAR 33 Australian Competition and Consumer Commission v Energy Australia Pty Ltd [2014] FCA 336 Australian Competition and Consumer Commission v Flight Centre (No 3) [2014] FCA 292 Australian Competition and Consumer Commission v Mandurvit Pty Ltd [2014] FCA 464 Australian Competition and Consumer Commission v Safe Breast Imaging Pty Ltd (No 2) [2014] FCA 998 Australian Competition and Consumer Commission v Titan Marketing Pty Ltd [2014] FCA 913 Australian Competition and Consumer Commission v Zen Telecom Pty Ltd [2014] FCA 1049 Australian Securities and Investments Commission v Newcrest Mining Ltd [2014] FCA 698 Barbaro v R [2014] HCA 2; (2014) 88 ALJR 372 Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 Council of the Queensland Law Society Inc v Wakeling [2004] QCA 42 D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198 DP World Sydney Ltd v Maritime Union of Australia (No 2) [2014] FCA 596 Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 Fair Work Ombudsman v Crystal Carwash Café Pty Ltd (No 2) [2014] FCA 827 Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] VSC 134 Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 Law Society of New South Wales v Moulton (1981) 2 NSWLR 736 Legal Practitioners Complaints Committee and Lee-Steere [2010] WASAT 189 Legal Practitioners Complaints Committee and Segler [2010] WASAT 135 Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 Legal Practitioners Complaints Committee v Pepe [2009] WASC 39 Legal Practitioners Complaints Committee v Vogt [2009] WASCA 202 Legal Practitioners Conduct Board v Kerin [2006] SASC 393 Legal Profession Complaints Committee and Love [2011] WASAT 13 Legal Profession Complaints Committee and Love [2014] WASAT 84 Legal Profession Complaints Committee and Segler [2014] WASC 159 Legal Profession Complaints Committee and Skerritt [2012] WASAT 221 Legal Profession Complaints Committee and Vanderfeen [2011] WASAT 118 Legal Profession Complaints Committee v Brickhill [2013] WASC 369 Legal Profession Complaints Committee v Chin [2012] WASC 467 Legal Profession Complaints Committee v in de Braekt [2013] WASC 124 Legal Profession Complaints Committee v Masten [2011] WASC 71 Legal Profession Complaints Committee v O'Halloran [2013] WASC 430 New South Wales Bar Association v Evatt (1968) 117 CLR 177 Ojielumhen v The Queen [2014] ACTCA 28 Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320 R v Costin [2014] QDC 39 Tax Practitioners Board v Dedic [2014] FCA 511 Tax Practitioners Board v Su [2014] FCA 731 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- KENNETH MARTIN J
EDELMAN J
- Applicant
AND
DEAN RICHARD LOVE
Respondent
Catchwords:
Legal practitioners - Solicitors - Application for removal from roll of legal practitioners - Whether fit and proper person to be a legal practitioner - Online legal application form - Practitioner causing website to be set up so as to mislead potential clients into believing they were applying to Legal Aid - Practitioner receiving application from potential client and causing application to be made to Legal Aid so as to include deliberately false statement - Whether appropriate remedy is removal from the roll of practitioners
Legislation:
Legal Profession Act 2008 (WA), s 444
Result:
Order for removal from the roll
Category: B
Representation:
Counsel:
Applicant : Ms K F BanksSmith SC & Ms P E Le Miere
Respondent : Mr L M Levy SC & Mr G A Walsh
Solicitors:
Applicant : Legal Profession Complaints Committee
Respondent : Greg Walsh & Co
Case(s) referred to in judgment(s):
A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253
Archer v Howell (1992) 7 WAR 33
Australian Competition and Consumer Commission v Energy Australia Pty Ltd [2014] FCA 336
Australian Competition and Consumer Commission v Flight Centre (No 3) [2014] FCA 292
Australian Competition and Consumer Commission v Mandurvit Pty Ltd [2014] FCA 464
Australian Competition and Consumer Commission v Safe Breast Imaging Pty Ltd (No 2) [2014] FCA 998
Australian Competition and Consumer Commission v Titan Marketing Pty Ltd [2014] FCA 913
Australian Competition and Consumer Commission v Zen Telecom Pty Ltd [2014] FCA 1049
Australian Securities and Investments Commission v Newcrest Mining Ltd [2014] FCA 698
Barbaro v R [2014] HCA 2; (2014) 88 ALJR 372
Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438
Council of the Queensland Law Society Inc v Wakeling [2004] QCA 42
D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198
DP World Sydney Ltd v Maritime Union of Australia (No 2) [2014] FCA 596
Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326
Fair Work Ombudsman v Crystal Carwash Café Pty Ltd (No 2) [2014] FCA 827
Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] VSC 134
Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56
Law Society of New South Wales v Moulton (1981) 2 NSWLR 736
Legal Practitioners Complaints Committee and Lee-Steere [2010] WASAT 189
Legal Practitioners Complaints Committee and Segler [2010] WASAT 135
Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211
Legal Practitioners Complaints Committee v Pepe [2009] WASC 39
Legal Practitioners Complaints Committee v Vogt [2009] WASCA 202
Legal Practitioners Conduct Board v Kerin [2006] SASC 393
Legal Profession Complaints Committee and Love [2011] WASAT 13
Legal Profession Complaints Committee and Love [2014] WASAT 84
Legal Profession Complaints Committee and Segler [2014] WASC 159
Legal Profession Complaints Committee and Skerritt [2012] WASAT 221
Legal Profession Complaints Committee and Vanderfeen [2011] WASAT 118
Legal Profession Complaints Committee v Brickhill [2013] WASC 369
Legal Profession Complaints Committee v Chin [2012] WASC 467
Legal Profession Complaints Committee v in de Braekt [2013] WASC 124
Legal Profession Complaints Committee v Masten [2011] WASC 71
Legal Profession Complaints Committee v O'Halloran [2013] WASC 430
New South Wales Bar Association v Evatt (1968) 117 CLR 177
Ojielumhen v The Queen [2014] ACTCA 28
Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320
R v Costin [2014] QDC 39
Tax Practitioners Board v Dedic [2014] FCA 511
Tax Practitioners Board v Su [2014] FCA 731
- JUDGMENT OF THE COURT:
Introduction
1 Mr Love is a legal practitioner. He consented to findings by the State Administrative Tribunal that he had engaged in professional misconduct within the meaning of s 403 of the Legal Profession Act 2008 (WA) in three respects:
(1) between 21 March 2012 and 14 July 2012, by intentionally causing the publication of a webpage that was likely to mislead and deceive persons using it. The website was misleading in that it caused a person using it to believe they were submitting an application for legal aid to the Legal Aid Commission of Western Australia, when in fact the website would cause an email to be sent to the practitioner, who would then submit an application to Legal Aid on that person's behalf;
(2) on 29 March 2012, in making an application for legal aid for representation of a named individual, in intentionally falsely representing that that individual had consulted with him and that he was of the opinion that the application had legal merit; and
(3) on 29 March 2012, causing that person's application to be submitted in a form which provided answers to a number of questions on the application in respect of which the individual had not given him any information, and indicating a declaration that the individual declared that that information was true and correct.
2 On 4 July 2014, after a hearing on penalty, the State Administrative Tribunal transmitted a report pursuant to s 438(2)(a) of the Legal Profession Act. The Tribunal expressed the opinion that Mr Love is not a fit and proper person to remain a legal practitioner.
3 By s 444(1), the report is to be taken to be conclusive as to all facts and findings mentioned or contained in the report.
4 The report comprises:
(a) the Tribunal's reasons;1
(b) the transcript of the hearing on penalty on 8 April 2014; and
(c) the Tribunal's order of 19 February 2014, which incorporates by reference the Statement of Facts annexed to the application in the Tribunal, and the Book of Documents filed by the Legal Profession Complaints Committee (the Committee).
5 The Committee has applied for an order that the practitioner be removed from the roll of practitioners.
6 Upon the Committee's application, this court has power to order the removal of a practitioner from the roll, or to make any of the orders that the Tribunal could have made under s 439, s 440 and s 441 of the Legal Profession Act. Those orders include an order suspending the practitioner's local practising certificate, an order specifying conditions be imposed on the practitioner's practising certificate and orders recommending that the practitioner's interstate practice certificate be suspended.
7 For the reasons that follow, we would order that the practitioner's name be removed from the roll.
The facts relating to the practitioner's conduct
8 The Tribunal made the following findings of fact:2
At all material times, the Practitioner was:
• an Australian legal practitioner within the meaning of the LP Act;
• the principal of Dean R. Love and Associates, Barristers & Solicitors (Firm); and
• the sole director of DRL Legal Pty Ltd (DRLL).
The Practitioner was also a member of the panel of private practitioners for the Legal Aid Commission of Western Australia (LAWA).
DRLL operated a website called to LAWA for legal aid
The finding by the Tribunal of professional misconduct against the Practitioner concerns a website developed by the Practitioner called ' It is therefore necessary for the purpose of these reasons to outline briefly the usual process for making a legal aid application to LAWA.
Applications to LAWA for legal aid can only be made by a member of the public by either:
• completing and signing an application for legal aid using an approved form provided by LAWA and then submitting it directly to LAWA; or
• completing and signing an application for legal aid using an approved form provided by LAWA and then providing it to a legal practitioner with an instruction or request that the practitioner submit a request to LAWA for legal aid.
The application includes the following declaration (Applicant's Declaration) by the legal aid applicant:
'I ... have read the conditions of assistance available on the Legal Aid website (and provided to me) and acknowledge that it is an offence to:
• Fail to provide information required of me which is relevant to this application for legal aid;
• Provide a document to the Commission in connection with this application for legal aid that is false or misleading; and
• Make a false or misleading statement either orally or in writing in relation to this application for legal aid.
I therefore declare that all the information I have given is true and correct.
Applicant's Signature Date '
LAWA maintains a web interface entitled Grants Online (GOL) on which LAWA panel solicitors, and only those panel solicitors, may on behalf of clients or prospective clients apply for legal aid 'on line' by completing the legal aid application form available via the GOL interface (GOL Aid Application).
Guidelines have been issued by LAWA as to the terms and conditions of submitting a GOL Aid Application (GOL Guidelines). It is a condition of making a GOL Aid Application that practitioners agree to comply with the GOL Guidelines.
The GOL Guidelines provide that LAWA may make a grant of legal assistance for an application that meets the 'merits test' set out in Section 3 of Part 1 of the Commonwealth Legal Aid Guidelines which form part of the GOL Guidelines. The components of that test are a 'reasonable prospects of success test', a 'prudent self-funding litigant test' and an 'appropriateness of spending limited public legal aid funds test'.
A legal practitioner submitting a GOL Aid Application is required to certify that he or she has consulted with the relevant applicant and must provide his or her opinion as to the legal merits of the defence or claim the subject of the application.
In circumstances where a legal practitioner submits a GOL Aid Application on behalf of a client or prospective client, it is the usual practice of LAWA, if the grant of aid is approved, to appoint that practitioner to act on that person's behalf.
The 'applyforlegalaid' website is created
Between about January and March 2012, DRLL, through the Practitioner, acquired the domain names 'applyforlegalaid.com.au' and 'applyforlegalaidwa.com.au'. DRLL subsequently registered a new website named ' (Application Website).
The Practitioner then engaged a web developer to develop the Application Website and expressly instructed that it was to have the following characteristics:
• upon accessing the Application Website, the only thing that was to appear was a document entitled 'Legal Aid Application Form' (Application Form) which included the logo of LAWA and which was in terms very similar to the GOL Aid Application;
• it was to allow a user to complete the Application Form online by answering questions in 'pop up boxes'. In particular, a person had to insert personal information about themselves and their financial and legal problems;
• it was not to include the Practitioner's email address to which the completed form would be sent; and
• when the icon marked 'Submit' is clicked or pressed, the completed form or at least its contents would be automatically sent to the Practitioner by email.
On or about 21 March 2012, the completed Application Website containing the Application Form was uploaded to an internet server.
An Application Form is submitted
Subsequently, on or about 29 March 2012, Ms P, the respondent in a child custody matter, accessed the Application Website. She completed some of the Application Form and clicked on the Submit button.
As a result, the Practitioner then received an email which contained the information which Ms P had inserted into the Application Form (Email). The Email was at that stage the Practitioner's only communication from Ms P and the only contact the Practitioner had with Ms P. It was also the only information the Practitioner had received from her.
When the Practitioner received the Email, it did not contain:
• answers to or information about the questions numbered N1-N4 (Attempt to Negotiate), O3-O4 (Contact with the Department of Child Protection), V1-V4 (Family and Domestic Violence), F01-F02 or F04-F017 (Parenting Orders) in Ms P's Application;
• information which would provide reasonable grounds for the Practitioner to conclude that Ms P’s case had legal merit;
• the Applicant's Declaration; or
• any signature of Ms P or any authority to sign Ms P's Application on her behalf.
A GOL Aid Application for legal aid is made by the Practitioner
On or about 29 March 2012, the Practitioner prepared and submitted Ms P's application for legal aid using a GOL Aid Application which:
• provided answers to questions N1-N4, O3-O4, V1-V4, F01-F02 and F04-F017; and
• indicated that on 29 March 2012 Ms P had signed the Applicant's Declaration, declaring that all the information in Ms P's Application was true and correct.
Subsequent events
LAWA subsequently refused legal aid to Ms P and told her that her lawyer (meaning the Practitioner) had been advised of the decision.
Ms P informed LAWA in response that she had never heard of the Practitioner and that she believed she had submitted her application for legal aid online directly to LAWA.
In a letter dated 9 May 2012, LAWA:
• informed the Practitioner that a client had been misled into believing that she was applying directly for legal aid from LAWA; and
• requested the Practitioner to 'withdraw the online application form with the Legal Aid WA logo'.
By email dated 9 May 2012, the Practitioner instructed the web developer to remove the Logo from the Application Website and to insert in its place the logo of the Firm and the address and contact details of the Practitioner.
These instructions were complied with on the same day.
Also on that date the Practitioner by email:
• informed LAWA that he had instructed the web developer to remove the LAWA logo; and
• informed LAWA if there were other problems to let him know and that he would get the web developer to make changes.
In a letter dated 10 July 2012, LAWA informed the Practitioner, among other things, that it had resolved to give the Practitioner written notice of its intention to remove the Practitioner from LAWA's panel of private practitioners.
Around or on 14 July 2012, the Practitioner took down the Application Website.
The Tribunal's orders of 19 February 2014
9 On 19 February 2014, the Tribunal made the following orders by consent, setting out its findings as to the professional misconduct engaged in by the practitioner:
1. The practitioner engaged in professional misconduct within the meaning of section 403 of the Legal Profession Act 2008 (WA):
(a) between about 21 March 2012 and 14 July 2012 by intentionally causing the publication of a webpage on a website (Application Website) that was likely to mislead and deceive a person using the Application Website to believe that they were completing and submitting an application for legal aid directly to the Legal Aid Commission of Western Australia (LAWA), when in fact the Application Website would send an email, containing completed personal information, to the practitioner's firm or company so that the practitioner could use the information to submit an application for legal aid to LAWA purportedly on that person's behalf in the expectation that he would be assigned legal aid to act on the person's behalf if legal aid was granted;
(b) on or about 29 March 2012 when submitting to LAWA an application for legal aid for representation of Ms P [Request ID 126470] (Ms P's Application) in that he intentionally falsely represented to LAWA:
(i) expressly, that Ms P had consulted with him and he was of the opinion that the application had legal merit; and
(ii) implicitly, that he had reasonable grounds for believing that the application had legal merit,
in circumstances where the practitioner had not consulted with Ms P and the practitioner had no reasonable grounds for forming an opinion as to whether the application had legal merit;
(c) on or about 29 March 2012, when he caused Ms P's Application to be submitted to LAWA in a form which:
(i) provided answers to questions N1-N4, O3-O4, V1-V4, F01-F02 and F04-F017 when Ms P had not given him any information in relation to those matters; and
(ii) indicated that on 29 March 2012 Ms P had signed a declaration, which included a declaration that all the information in Ms P's Application was true and correct, when she had not done so.
The Tribunal's conclusion as to penalty
10 The Tribunal's reasons for referring the matter to this court with the recommendation that the practitioner be struck off were as follows:3
63 The Practitioner on his own admission intentionally deceived, misled and made false representations to LAWA. Ms P had not signed the Applicant's Declaration and some of the information which he included in his application on behalf of Ms P for legal aid was fabricated by the Practitioner. Even though the Practitioner had not given an express opinion to LAWA on the merits of Ms P's case, the Practitioner is familiar with the GOL Guidelines and knew that, by submitting an application, LAWA would believe that the application met the 'merits test' pursuant to the GOL Guidelines.
64 The legal aid system is publicly funded and is essential to the fair and just operation of Western Australia's judicial system. Its resources are limited. This deceptive behaviour in dealing with LAWA cannot be tolerated.
65 Further, the Practitioner on his own admission clearly intended to deprive other members of the profession, namely the other members of LAWA's panel of practitioners, of the opportunity of being instructed by LAWA. The Practitioner clearly regards his own interests to be of greater importance than those of the public and his fellow practitioners.
66 The Tribunal notes that the Practitioner has already been found by this Tribunal to have engaged in unsatisfactory professional conduct on three separate occasions in the past. Those findings were, in summary, that the Practitioner had failed to treat a client fairly and to protect that client's interest, that he fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner and that he acted recklessly and contrary to instructions from a third party in order to advance his own interests.
67 These past findings are not relied upon in order to punish the Practitioner. However, the Practitioner's past conduct is relevant to the consideration of whether the Practitioner is a fit and proper person to practise law because it illustrates that the Practitioner's misconduct is not an isolated incident; Legal Profession Complaints Committee v O'Halloran [2013] WASC 430 at [93].
68 While the Practitioner's conduct presently under consideration is of a different nature, this still suggests to the Tribunal a continued failure by the Practitioner to appreciate the standards of conduct required of him; Legal Practitioners Conduct Board v Kerin [2006] SASC 393 (Kerin) at [47] - [48].
69 The Practitioner's character referees, each a legal practitioner, all speak well of the Practitioner. However, it is clear from their letters that some of the witnesses (Mr Earnshaw, Mr Cooper, Mr Watters, Dr Davies and Mr Rebbeck) are not fully aware of the details of the findings which the Tribunal has recently made against the Practitioner or his disciplinary history. Mr Rynne expressed some knowledge of the Practitioner's disciplinary history but states that he has no information about the recent finding other than it is 'serious'. The same applies to Mr Singh, who says that he knows about the Committee's allegations, but does not express any knowledge of the Tribunal's recent finding.
70 Mr Cywicki and Mr Percy QC both say that they know the details of the recent finding of the Tribunal but make no mention of their knowledge or otherwise of the Practitioner's disciplinary history.
71 It is not apparent from the references from Mr Butcher and from Mr Lindsay that they have any detailed understanding of the Tribunal's finding against the Practitioner or awareness of his disciplinary history.
72 We can therefore give little weight to these references.
73 The Practitioner did not demonstrate any remorse for his conduct. He concedes only that his conduct was 'stupid' and seeks to excuse himself by saying that any harm from his actions was limited to being instructed in matters ahead of other members of LAWA's panel of solicitors. As far as his opinion to LAWA that Ms P's case had legal merit is concerned, his explanation that he had a general understanding of the issues involved is entirely unacceptable.
74 The Committee says that it is to his credit that the Practitioner consented to findings of professional misconduct. However, while this may be so, the Tribunal prefers the view that this action on the part of the Practitioner was motivated by a desire not to defend a complaint about him which was clearly and demonstrably indefensible.
75 We accept the Practitioner's submission that the Tribunal may take his financial hardship into consideration when assessing penalty. However, while we may take account of this, the fact that the Practitioner has suffered and may suffer financial hardship as a result of the Tribunal's findings is a secondary consideration when the Tribunal is fulfilling its obligation to make orders to protect the public and maintain public confidence in the legal profession.
76 The Tribunal's conclusion is that the Practitioner's conduct must be regarded as disgraceful and dishonourable and that he is not a fit and proper person to remain a legal practitioner. His conduct justifies a report being made and transmitted to the Supreme Court (full bench) pursuant to s 438(2)(a) of the LP Act with the recommendation that the Practitioner's name be removed from the roll of legal practitioners.
11 These findings of the Tribunal, up to and including [74], are conclusive by force of s 444 of the Legal Profession Act. Thus, the conclusive findings of the Tribunal include the following:
(a) on his own admission the practitioner intended to deprive other members of the profession, namely other members of LAWA's panel of practitioners, of the opportunity of being instructed by LAWA;4
(b) the practitioner's conduct reveals or suggests that he regards his own interests to be of greater importance than those of the public and of his fellow practitioners;5
(c) the practitioner did not demonstrate any remorse;6
(d) the practitioner's consent to the finding of professional misconduct was motivated by a desire not to defend a complaint about him which was clearly and demonstrably indefensible.7
12 At the hearing before us, senior counsel for the practitioner appeared to proceed on the basis that the Tribunal's conclusion that the practitioner is not a fit and proper person to remain a legal practitioner8 is also a finding that is binding on this court. That is not so. The question for this court is whether the practitioner is not a fit and proper person to be a member of the profession and thus, whether he should be struck off.
Legal principles concerning disciplinary penalties
13 The purposes of pt 13 of the Legal Profession Act are, relevantly:
(a) to provide for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally; and
(b) to promote and enforce the professional standards, competence and honesty of the legal profession.9
14 In Legal Profession Complaints Committee v in de Braekt,10 the court set out the following well-established principles:
The court's jurisdiction with respect to the regulation of the legal profession in this state 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.
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. Fitness to practice law requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges.
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'. 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. (citations omitted)
15 The question of whether a person is a fit and proper person is to be determined at the time of the hearing.11
16 An order striking off the roll should only be made when the probability is that the solicitor is permanently unfit to practise.12
17 Where the choice presented is, as in this case, effectively one between suspension and striking off, some assistance can be obtained from the judgment of Thomas JA, McMurdo P and White J agreeing, in Barristers' Board v Darveniza:13
Striking off is of course reserved for the very serious cases where the character and conduct of the practitioner is seen to be inconsistent with the privileges of further practice. Suspension is a less serious result, firstly because a limited period is specified and secondly because the right to resume practice is then preserved without any further onus upon the practitioner to prove that he or she is now a fit and proper person to practice.
'The proper use of suspension is, in my opinion, for those cases in which a legal practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner.' (In Re A Practitioner (1984) 36 SASR 590, 593 (King CJ).)
19 The degree to which a practitioner appreciates the seriousness of the misconduct is a relevant factor in the choice of the court, exercising a protective jurisdiction, between the alternatives of suspension or striking off. A practitioner who fails to understand the significance and consequences of misconduct is a great risk to the community.15
The practitioner's application to adduce new evidence
20 At the hearing before this court the practitioner sought leave to rely upon the following material that was not before the Tribunal:
(a) an affidavit from the practitioner sworn 15 September 2014;
(b) a report of Dr Olav Nielssen, psychiatrist, dated 14 September 2014;
(c) a statutory declaration of the practitioner's wife declared 15 September 2014; and
(d) a letter dated 8 September 2014 from Mr Robert Butcher, who had provided a reference for the practitioner to rely upon before the Tribunal.
21 Section 444(1) of the Legal Profession Act provides that the Tribunal's report is taken to be conclusive as to all facts and findings mentioned or contained in the report. Section 444(2) of the Legal Profession Act provides that this court may, 'upon motion and upon reading [the Tribunal's report], and without any further evidence'... exercise its power.
22 This basic statutory scheme has been in place since no later than 1948. The Legal Practice Act2003 (WA) and the Legal Practitioners Act 1893 (WA) each had like provisions. The history is explained in Archer v Howell16and D'Alessandro v Legal Practitioners Complaints Committee.17 As Malcolm CJ explained in Archer v Howell,18 under this scheme, the function of the Full Court, now full bench, is to determine what sanction ought to be imposed on the practitioner and to make such order for the payment of costs by the practitioner as the court thinks fit, based upon the facts and findings in the report transmitted to the Full Court, those facts and findings being conclusive.
23 It does not follow from this that this court has no power to admit further evidence. However, this statutory scheme is relevant to the circumstances in which and grounds on which the court will exercise its discretion as to whether to admit further evidence.
24 In our view, the power of the full bench to receive additional evidence is subject to the express provision in s 444(1). Evidence cannot be received for the purpose of undermining a fact or finding mentioned or contained in the Tribunal's report under s 438(2)(a).
25 The assessment of whether a person is fit and proper to remain a practitioner is one to be made at the date of the hearing. Consequently, evidence of events and circumstances subsequent to the hearing before the Tribunal may more readily be expected to be received.
26 More generally, in determining whether to receive additional evidence, regard should be had to the subject matter and cogency of the evidence, whether it was available at the time of the hearing before the Tribunal, and, if so, why it was not adduced.
27 Subject to one qualification, the Committee did not oppose the practitioner's application to adduce further evidence before this court. The qualification is that, to the extent that any of the proposed evidence sought to undermine the conclusiveness of facts and findings in the Tribunal's report, it could not be admitted for that purpose.
28 We are content to receive the additional evidence on this basis.
29 As we will explain, the practitioner's affidavit is relevant to the assessment of whether he is, now, a fit and proper person insofar as it reveals the extent to which he has or lacks insight into this professional misconduct and previous unprofessional conduct.
Consideration of whether the practitioner is a fit and proper person
30 Our decision must be informed by the purposes of the interests and protection of the public and the reputation of the legal profession, not by notions of punishing the practitioner.
31 The penalty of striking a practitioner off the roll is an extreme one. It has dire consequences for the practitioner. Many other sanctions are available for professional misconduct. After careful deliberation, we have come to the view that the practitioner is not a fit and proper person to practise law. In our view, the professional misconduct in which the practitioner engaged, viewed in the context of his previous disciplinary history and his lack of insight and remorse, compels this conclusion.
The practitioner's professional misconduct
32 In our view, the following features of the practitioner's professional misconduct are significant.
33 First, his conduct involved deliberate dishonesty. He caused the website to be set up in the way that would intentionally mislead members of the public whom he wanted as his clients. Further, in sending the legal aid application to LAWA, he intentionally falsely represented that Ms P had consulted with him and that he was of the opinion that the application had legal merit.
34 Secondly, the practitioner's motivation for engaging in this deliberate dishonesty was to benefit himself by obtaining legal work and thereby to earn professional fees. The practitioner preferred his own interests to the interests of members of the public, interests of LAWA, and interests of fellow practitioners, and engaged in deliberate deception in order to advance his own interests. As the Tribunal found, the practitioner intended to deprive other members of LAWA's panel of practitioners of the opportunity of being instructed by LAWA.
35 Thirdly, the practitioner's deliberately dishonest conduct was not a momentary lapse, or impulsive. The practitioner's conduct involved a concerted plan in which he put a system in place for the period of January to March 2012, and then, when he received the application from Ms P, acted upon his plan to divert work to himself.
36 The Committee's submissions properly identified a number of cases in which some form of deliberately misleading conduct on the part of a practitioner had not led to striking off.19 Apart from anything else, none of the deliberately misleading conduct in those cases had the hallmarks present in this case of being aimed at advancing the practitioner's financial interests in preference to the interests of those to be deceived, and of involving a sustained plan of deception continuing over a period of many weeks.
The practitioner's disciplinary history
37 As we have said, the practitioner's professional misconduct the subject of this application involved him preferring his own interests to those of potential clients and others. That feature can also be seen in some of the earlier findings of unsatisfactory professional conduct that had been made against the practitioner.
38 In proceedings VR 164 of 2010, the practitioner consented to findings that included the following:20
The [practitioner] between on or about 23 July 2007 and on or about 8 April 2008 engaged in unsatisfactory professional conduct in the course of acting on behalf of Mr D J T (the client) with respect to family law matters (the retainer) in that he did not treat the client fairly, in good faith and protect the client's interests by:
(a) failing to advise the client he should obtain independent legal advice before entering in to a private litigation funding agreement with Impact Capital Ltd (the funding agreement).
(b) failing to adequately inform the client of his personal interest in having the client enter into the funding agreement which had the potential to conflict with those of the client.
(c) charging the client for professional fees for work done after the client had terminated the retainer.
(d) failing to return client documents to the client or his new solicitor as instructed in a timely manner.
(e) advocating in correspondence with Legal Aid WA for the client's expanded grant of legal aid (which was made to a new solicitor) to be withdrawn.
39 As the Tribunal observed in the course of imposing a fine on the practitioner,21 the matters referred to in par (a), (b) and (e) involve the practitioner placing his own interests ahead of the interests of his client to the potential financial benefit of the practitioner. In that proceeding, the Tribunal expressed concern that a letter written by the practitioner to Legal Aid had appeared to be designed to damage the client's interests as a reaction to the client's change of solicitor. After hearing from the practitioner, the Tribunal remained concerned that notwithstanding his denial, he appeared to have pursued a course of action designed to cause detriment to his client.22
40 In VR 19 of 2011, the practitioner agreed the facts and consented to orders that he had engaged in unsatisfactory professional conduct in writing a letter contrary to the recipient's instructions and in order to advance his own interests. A solicitor employed by the practitioner attended at the Citizen's Advice Bureau. During an interview, a client marked the 'no' box in relation to the question 'you may be contacted by phone or email?' This was correctly noted by the practitioner's employee solicitor. At the practitioner's direction the employed solicitor placed his report in the practitioner's in tray. Shortly afterwards the practitioner wrote two letters to the client, sent to his home address, contrary to his instructions that there be no written communications to him. The practitioner sent the letters recklessly contrary to the client's instructions and in order to advance his own interests in obtaining paid legal work.
41 In VR 34 of 2012, the practitioner agreed facts and consented to a finding that he engaged in unsatisfactory professional conduct in representing a client on serious criminal charges in that his representation of the client fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.
Lack of remorse and insight
42 As we have said, the Tribunal made a conclusive finding that the practitioner was not remorseful for his conduct.
43 The practitioner's conduct involved deliberately misleading people. He admitted that in resolving the application in the Tribunal. However, in our view, apart from that occasion, the practitioner has on many other occasions failed to acknowledge his intention to mislead others, and at times has sought to advance explanations for his conduct that are inconsistent with his admitted intention to mislead. The intentional misleading of members of the public and of LAWA is the gravamen of his professional misconduct. The practitioner's failure to acknowledge that feature of his conduct seems to us to be significant to the question of whether he is a fit and proper person to practise law.
44 The practitioner received a letter from the Committee in September 2012 which advised that it was investigating his conduct relating to the website. The practitioner responded by letter of 12 October 2012.23 In his letter, the practitioner asserted that his object in setting up the website was to make things simpler for people seeking legal aid and to avoid unnecessary work for them. The letter stated that he did not want anyone to be misled by any aspect of his website. Further, his letter sought to justify the certification of merit of Ms P's case in circumstances where he had no basis to do so.
45 The Committee followed up with a further letter of 7 November 2012. In response to this, by letter of 7 December 2012, the practitioner acknowledged that he had engaged in unprofessional conduct by having the website created. The letter acknowledged that to the extent that any member of the public was misled by the website, that was unprofessional conduct and he would not repeat it. However, his letter did not acknowledge his intention to mislead members of the public in setting up the website.
46 The practitioner's letter of 30 May 2013 referred to his 'disbelief' at his 'own incredible stupidity'. Again, there was no acknowledgment of dishonesty or the intention to mislead.
47 The practitioner's submissions to the Tribunal demonstrated little insight or remorse. They contained no indication that the practitioner acknowledged that he had intentionally misled a client, or that he understood that such conduct is entirely unacceptable and fundamentally inconsistent with the duties of a legal practitioner.
48 Dr Nielssen's report, adduced by the practitioner, included quotes from the practitioner about the complaints the subject of this application. The practitioner is quoted as having said:
It was reckless ... I didn't think it through because I knew I could clarify it later because I knew I would be doing work for them.
49 Again, that does not acknowledge the true character of the practitioner's conduct. The practitioner's conduct was not reckless; it was deliberately deceptive.
50 The practitioner's affidavit of 15 September 2014 in these proceedings reveals the same problem. The practitioner does not acknowledge that he acted with an intention to deceive. Paragraphs 19 to 23 of the affidavit seek to explain why the practitioner set up the website. What the practitioner says in those paragraphs is not consistent with the facts to which the practitioner agreed and which have been found by the Tribunal. In these paragraphs the practitioner attempts to water down the seriousness of his conduct, and fails to acknowledge the deceptive intention with which he caused the website to be set up.
51 Paragraph 44 of the practitioner's affidavit is headed 'acknowledgment of wrongdoing'. In that paragraph the practitioner says that he accepts that his conduct was a breach of his duties in that the creation of the website misled Ms P and also potentially other members of the community and LAWA. He expresses his apology for that. He then says:
I can candidly say that in creating the website it was my intention to just 'streamline' applications for legal aid and I obviously did not apply my mind to the consequences for trying to take such a 'shortcut'. The implications and consequences I accept ought to have been readily apparent to me at the time ... I can only seek to explain my misconduct on the basis that the creation of the website and the application for legal aid on behalf of Ms P was utterly foolish ...
52 The practitioner's continuing assertion of an intention to 'just streamline' applications for legal aid again fails to acknowledge his intention to deceive.
53 Regrettably, what the practitioner says in his affidavit about his disciplinary history reveals the same tendency to water down his earlier unprofessional conduct and the findings made, with his agreement, about that conduct.
54 In relation to VR 164 of 2010, he asserts that when he wrote to LAWA he did so because he considered he had an obligation as a panel lawyer to tell them about such matters.24 He does not acknowledge that the Tribunal specifically rejected that explanation in its reasons for imposing the fine. Further, in asserting that he 'thought that it was best to advise that the lender would take action enforce the debt',25 the practitioner is, in effect, attempting to justify the sending of the letter that was found to have been an element of his unprofessional conduct.
55 The practitioner's description of the findings in VR 19 of 2011 did not acknowledge that he sent the letter recklessly, contrary to the express instructions of the client, and did so with an intention of advancing his own interests.
56 Similarly, what the practitioner says about VR 34 of 2012 reveals that he, in effect, does not accept the findings of the Tribunal.
The practitioner's submissions
57 Before the Tribunal, the practitioner's submissions included the following:
(a) any harm done as a result of his actions was, in real terms, minimal;26
(b) the practitioner had 'pleaded guilty' early and had completed four ethics courses in November 2013;27
(c) that he had undergone a psychiatric evaluation and had been diagnosed with ADHD, but did not submit that this was an excuse in the proceeding;28
(d) that he ceased legal practice in November 2013, which had caused him significant financial hardship;29
(e) he relied upon numerous positive character references from practitioners practising in Western Australia.30
58 We agree with the Tribunal that none of these matters are of significant weight, and none of them detract from the conclusion that the practitioner is not a fit and proper person.
59 The practitioner also submitted that his misconduct had occurred in the course of a busy and stressful practice when he was under considerable financial pressure. At the risk of stating the obvious, that cannot excuse dishonest conduct in the practice of law. As White J stated in Legal Practitioners Conduct Board v Kerin,31 practitioners are expected to maintain high standards of conduct even in times of personal stress. Moreover, the weight given to personal circumstances cannot override the fundamental obligation of the court 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.32
60 In submissions before this court, senior counsel for the practitioner placed great emphasis on the psychiatric report of Dr Nielssen. He submits that that report, not available to the Tribunal, puts the practitioner's previous conduct 'into proper context'33 and supports a finding that he is now a fit and proper person to remain a member of the legal profession. He points to the following passages in Dr Nielssen's report:
(a) Mr Love has 'a major depressive illness for which he requires treatment';
(b) Mr Love 'is likely to have experienced depressed mood during the period in which the complaints were made, and certainly in the period 2010 to the present';
(c) depressive illnesses 'are associated with a pervasively negative outlook, and are often accompanied by reduced concern about the possible consequences of one's actions';
(d) 'the stress of working very long hours, the stress of facing complaints about his practice and also his anxiety about making mistakes...are likely to have contributed to the development of his depressive illness';
(e) there was probably a relationship between the effect of a 'chronic depressive illness and the behaviour that led to each of the complaints'.
61 The practitioner's evidence is that in recent months he has worked as an employed solicitor in a legal practice in Sydney. He submits that, provided that the practitioner remains as an employed solicitor (which can be achieved by the imposition of conditions) and complies with his treatment for depression, there is little or no risk to consumers of the services of the legal profession.34
62 For the reasons that follow we do not accept these submissions.
63 A diagnosis of depression does not, in itself, automatically excuse or mitigate professional misconduct. Apart from anything else, it cannot be assumed that the suffering of any mental illness, including depression, is a cause of any professional misconduct, particularly conduct involving dishonesty. Further, the protective function of these proceedings must be borne in mind, particularly where, as here, the professional misconduct involves dishonesty.35
64 Dr Nielssen was asked to answer nine specific questions. Question four asked how the practitioner's condition might have contributed to repeated acts of professional misconduct. Dr Nielssen's response in the report was in these terms:
The summary of the previous complaints do not include any obvious pattern of misconduct that might be linked to a psychiatric disorder or condition, other than perhaps a tendency to act on impulse and a lack of attention to the documentation of advice and other required for solo legal practice.
65 The practitioner's misconduct cannot be explained by any tendency to act on impulse, or by lack of attention to documentation.
66 Question nine asked whether the practitioner should have as a condition of practice that he seek treatment for his condition. In his response to that question, Dr Nielssen made the statement, relied on by the practitioner in this court, that he believed 'there was probably a relationship between the effect of a chronic depressive illness and the behaviour that led to each of the complaints'. In our opinion, that passage in the report does not sustain a conclusion that any depressive illness suffered by the practitioner was causally relevant to his professional misconduct the subject of this application. The statement in response to question nine is very difficult to reconcile with what is said in response to the direct question posed in question four. Further, there is nothing in Dr Nielssen's report that reveals an understanding on his part that the practitioner's conduct the subject of this application involved deliberate dishonesty on the part of the practitioner. Dr Nielssen's report is based on and influenced by the practitioner's version of the events concerning the various complaints against him. As we have said, the practitioner's version waters down the true position. Further and in any event, the report does not reveal any reasoning for an opinion that the deliberately misleading conduct the subject of this complaint was causally connected to a depressive illness suffered by the practitioner.
67 Nothing in Dr Nielssen's report suggests that the depressive illness suffered by the practitioner deprived him of the ability to understand the need for honesty and integrity in the practice of law. Of course, any such suggestion, if made, would have given rise to other questions, given the protective function of the court in these proceedings.
The relevance of Barbaro
68 The submissions of the parties raised the issue as to whether the decision of the High Court in Barbaro v R36 precluded the court from receiving or having regard to submissions from the Committee as to the appropriate disposition of this matter.
69 For the reasons that follow, we are satisfied that nothing said in Barbaro has that effect.
70 The High Court's decision in Barbaro was an appeal against sentence. Relevantly, the appellants appealed on the ground that the trial judge wrongly refused to receive submissions from the prosecution about what range of sentences she could impose on each of them. The decision relates to the submissions that can and cannot be made as to the length of a term of imprisonment to be imposed in a criminal proceeding. It concerned a practice, then existing in Victoria, of submissions being made by the prosecution about the outer bounds of the length of a term of imprisonment. What was said by the plurality must be understood in that context. Judicial statements in one context should not be mechanically transplanted into an entirely different context.
71 For example, although most of what the plurality said in Barbaro relates to submissions by the prosecution about available range, the following passage in the reasons of the plurality, viewed in isolation, might be taken to suggest that no specific result can be proffered.
It is neither the role nor the duty of the prosecution to proffer some statement of the specific result which counsel then appearing for the prosecution (or the Director of Public Prosecutions or the Office of Public Prosecutions) considers should be reached or a statement of the bounds within which that result should fall.37
72 Taken in isolation and read literally, this statement might be thought to preclude the prosecution from making a submission that suspension of an imprisonment is, in the circumstances of a particular case, inappropriate because only a term of immediate imprisonment should be imposed. Such submissions are routinely made by prosecutors in Australian courts. So far as we are aware, there is no authority in Australia that suggests that Barbaro precludes this.38 An extension of the reasoning in Barbaro to preclude this would be a considerably smaller extension than would be involved in transplanting Barbaro into the present context.
73 We note that the Court of Appeal of the Supreme Court of the Australian Capital Territory has held that Barbaro precludes the prosecution from submitting that a term of imprisonment of a specified length is appropriate.39 In Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2),40 Cavanough J held that Barbaro applied to contempt proceedings, and required him to disregard the parties' submissions suggesting particular sums or ranges for the fines to be imposed.
74 The potential application of the reasoning in Barbaro to proceedings for civil penalties has been considered and rejected by judges of the Federal Court in various regulatory fields, including:
(a) competition law;41
(b) corporate regulation;42
(c) industrial law;43 and
(d) vocational regulation.44
75 Professional disciplinary proceedings are not criminal in nature, nor are they relevantly analogous to the process of sentencing in criminal proceedings. Disciplinary proceedings are civil, not criminal. The objects of disciplinary proceedings are not punishment of the practitioner. Rather, as we have said, the objects are the protection of the public and the reputation of the legal profession. We also refer to the purposes set out in s 401.45
76 The role of the Committee in these proceedings is not to be equated with the role of a prosecutor in a criminal prosecution. Nor are their roles relevantly analogous.
77 These proceedings arise from the report made by the Tribunal under s 438(2) of the Legal Profession Act. The object of any such report is to enable the Supreme Court (full bench) to consider whether to exercise its power under s 444(2)(b) to order the removal from the roll of the practitioner's name. Under s 438(4)(b), the Tribunal may, as it did in this case, but need not, include in its report a recommendation that the practitioner's name be removed from the roll. In that statutory framework, it would be decidedly odd if the Committee, as moving party in the proceedings, could not make a submission on what is the central question in the proceedings. Moreover, there would also arise questions about what submission could be made on behalf of the practitioner.
78 Mediation is an integral part of the Tribunal's procedure in vocational disciplinary proceedings. That can result in agreement between the practitioner and the disciplinary regulatory body, here the Committee, as to the appropriate disposition of the proceedings. We see nothing that precludes the Committee and the practitioner from presenting the agreed position to the Tribunal and inviting the Tribunal to adopt it, should the Tribunal see fit. Of course, as the Tribunal46 and the Supreme Court47 have held, the Tribunal is not bound to accept the agreed position. Section 56(1) of the State Administrative Tribunal Act 2004 (WA) empowers the Tribunal to give effect to a settlement; it does not require it to do so.
79 In our view, there is nothing in Barbaro that precludes the Committee from providing submissions on why and whether, in the circumstances of the case, a particular outcome would achieve the objective of the protection of the public and the upholding of the reputation of the legal profession.
Conclusion
80 For these reasons, in our opinion, there should be an order that the practitioner's name be removed from the roll of practitioners.
1Legal Profession Complaints Committee and Love [2014] WASAT 84.
2Legal Profession Complaints Committee and Love [2014] WASAT 84 [5] - [30].
3Legal Profession Complaints Committee and Love [2014] WASAT 84 [63] - [76].
4 [65].
5 [65].
6 [73].
7 [74].
8 [76].
9Legal Profession Act s 401.
10Legal Profession Complaints Committee v in de Braekt [2013] WASC 124 [24] - [26].
11A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 [21]; Legal Profession Complaints Committee v O'Halloran [2013] WASC 430 [78].
12Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320 [17]; Legal Profession Complaints Committee v O'Halloran [78].
13Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438, 446 - 447 [38], cited with approval in many cases; see for example, Legal Practitioners Complaints Committee v Pepe [2009] WASC 39 [12]; Legal Profession Complaints Committee v Chin [2012] WASC 467 [30].
14Legal Profession Complaints Committee v Brickhill [2013] WASC 369 [21] quoting Barristers' Board v Darveniza [2000] QCA 253 (Thomas JA); Legal Profession Complaints Committee v Segler [2014] WASC 159 [6].
15Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 [35]; New South Wales Bar Association v Evatt (1968) 117 CLR 177, 184; Law Society of New South Wales v Moulton (1981) 2 NSWLR 736, 741, 743 (Hope JA).
16Archer v Howell (1992) 7 WAR 33, 39 - 40.
17D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198, 204.
18 (40).
19Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56; Legal Practitioners Complaints Committee v Vogt [2009] WASCA 202; Legal Practitioners Complaints Committee andSegler [2010] WASAT 135; Legal Practitioners Complaints Committee and Lee-Steere [2010] WASAT 189; Legal Profession Complaints Committee and Vanderfeen [2011] WASAT 118; Legal Profession Complaints Committee and Skerritt [2012] WASAT 221.
20Legal Profession Complaints Committee and Love [2011] WASAT 13 [38].
21Legal Profession Complaints Committee and Love [2011] WASAT 13 [24].
22 [30], [33].
23 Bundle of documents page 105.
24 Affidavit [54], [59].
25 Affidavit [59].
26 Tribunal's reasons [38].
27 [40].
28 [41].
29 [43].
30 [52].
31Legal Practitioners Conduct Board v Kerin [2006] SASC 393 [44]; cited with approval in Legal Profession Complaints Committee v Masten [2011] WASC 71 [30].
32Legal Profession Complaints Committee v Masten [29].
33 Respondent's submissions [36]; see also ts 27.
34 Respondent's submissions [53].
35Council of the Queensland Law Society Inc v Wakeling [2004] QCA 42 [25].
36Barbaro v R [2014] HCA 2; (2014) 88 ALJR 372.
37Barbaro v R [39].
38 A submission of that character was rejected in R v Costin [2014] QDC 39 [9] - [10].
39Ojielumhen v The Queen [2014] ACTCA 28.
40Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] VSC 134 [70].
41Australian Competition and Consumer Commission v Energy Australia Pty Ltd [2014] FCA 336 [113] - [152] (Middleton J); Australian Competition and Consumer Commission v Mandurvit Pty Ltd [2014] FCA 464 [38] - [80] (McKerracher J); Australian Competition and Consumer Commission v Titan Marketing Pty Ltd [2014] FCA 913 [15] (Rangiah J); Australian Competition and Consumer Commission v Safe Breast Imaging Pty Ltd (No 2) [2014] FCA 998 [47] (Barker J); Australian Competition and Consumer Commission v Zen Telecom Pty Ltd [2014] FCA 1049 [70] (Barker J); but cf Australian Competition and Consumer Commission v Flight Centre (No 3) [2014] FCA 292 [56] (Logan J).
42Australian Securities and Investments Commission v Newcrest Mining Ltd [2014] FCA 698 [7] (Middleton J).
43Fair Work Ombudsman v Crystal Carwash Café Pty Ltd (No 2) [2014] FCA 827 [51] (Buchanan J); DP World Sydney Ltd v Maritime Union of Australia (No 2) [2014] FCA 596 [23] (Flick J).
44Tax Practitioners Board v Dedic [2014] FCA 511 [3] (Davies J); Tax Practitioners Board v Su [2014] FCA 731 [9] (Jagot J).
45 See [13] above.
46Legal Profession Complaints Committee and Love [2011] WASAT 13.
47Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 [37].
33
44
1