Legal Profession Complaints Committee v O'Halloran
[2013] WASC 430
•4/12/13
LEGAL PROFESSION COMPLAINTS COMMITTEE -v- O'HALLORAN [2013] WASC 430
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 430 | |
| FULL BENCH | |||
| Case No: | LPD:1/2013 | 16 SEPTEMBER 2013 & ON THE PAPERS | |
| Coram: | MARTIN CJ BEECH J EDELMAN J | 4/12/13 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Practitioner's name removed from the roll of practitioners | ||
| B | |||
| PDF Version |
| Parties: | LEGAL PROFESSION COMPLAINTS COMMITTEE PAUL JOHN O'HALLORAN |
Catchwords: | Legal practitioners Solicitors Gross overcharging of vulnerable clients over numerous years Misrepresentations to the Insurance Commission Lack of candour with the Court Failure to make adequate arrangements to compensate victims of gross overcharging Whether appropriate remedy is removal from the roll of practitioners |
Legislation: | Legal Practice Act 2003 (WA) Legal Profession Act 2008 (WA) State Administrative Tribunal Act 2004 (WA) |
Case References: | A Solicitor v Council of the NSW Law Society [2004] HCA 1; (2004) 216 CLR 253 Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 Franconi v Legal Practitioners Complaints Committee [2001] WASCA 431 Law Society of NSW v Foreman (1994) 34 NSWLR 408 Legal Practitioner Complaints Committee v Pepe [2009] WASC 39 Legal Practitioners Complaints Committee v Camp [2010] WASC 188 Legal Profession Complaints Committee and O’Halloran [2013] WASAT 105 Legal Profession Complaints Committee and O'Halloran [2011] WASAT 95 Legal Profession Complaints Committee and O'Halloran [2011] WASAT 95 (S) Legal Profession Complaints Committee v in de Braekt [2013] WASC 124 New South Wales Bar Association v Meakes [2006] NSWCA 340 O'Halloran v Legal Profession Complaints Committee [2013] WASCA 59 Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 Re Law Society of the Australian Capital Territory v Roche [2002] ACTSC 104; (2002) 171 FLR 138 Royal Bank of Scotland v Etridge (AP) [2001] UKHL 44; [2002] 2 AC 773 Solicitors Regulatory Authority v Paul O'Halloran (United Kingdom Solicitors Disciplinary Tribunal, 14 November 2012) The NSW Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 Veghelyi v The Law Society of New South Wales (Unreported, NSWCA, 6 October 1995) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : FULL BENCH CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE -v- O'HALLORAN [2013] WASC 430 CORAM : MARTIN CJ
- BEECH J
EDELMAN J
- Applicant
AND
PAUL JOHN O'HALLORAN
Respondent
Catchwords:
Legal practitioners - Solicitors - Gross overcharging of vulnerable clients over numerous years - Misrepresentations to the Insurance Commission - Lack of candour with the Court - Failure to make adequate arrangements to compensate victims of gross overcharging - Whether appropriate remedy is removal from the roll of practitioners
Legislation:
Legal Practice Act 2003 (WA)
Legal Profession Act 2008 (WA)
State Administrative Tribunal Act 2004 (WA)
Result:
Practitioner's name removed from the roll of practitioners
Category: B
Representation:
Counsel:
Applicant : Ms P E Cahill SC & Ms P Le Miere
Respondent : Mr G M G McIntyre SC
Solicitors:
Applicant : Legal Profession Complaints Committee
Respondent : Butcher Paull & Calder
Cases referred to in judgment:
A Solicitor v Council of the NSW Law Society [2004] HCA 1; (2004) 216 CLR 253
Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438
Franconi v Legal Practitioners Complaints Committee [2001] WASCA 431
Law Society of NSW v Foreman (1994) 34 NSWLR 408
Legal Practitioner Complaints Committee v Pepe [2009] WASC 39
Legal Practitioners Complaints Committee v Camp [2010] WASC 188
Legal Profession Complaints Committee and O’Halloran [2013] WASAT 105
Legal Profession Complaints Committee and O'Halloran [2011] WASAT 95
Legal Profession Complaints Committee and O'Halloran [2011] WASAT 95 (S)
Legal Profession Complaints Committee v in de Braekt [2013] WASC 124
New South Wales Bar Association v Meakes [2006] NSWCA 340
O'Halloran v Legal Profession Complaints Committee [2013] WASCA 59
Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320
Re Law Society of the Australian Capital Territory v Roche [2002] ACTSC 104; (2002) 171 FLR 138
Royal Bank of Scotland v Etridge (AP) [2001] UKHL 44; [2002] 2 AC 773
Solicitors Regulatory Authority v Paul O'Halloran (United Kingdom Solicitors Disciplinary Tribunal, 14 November 2012)
The NSW Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177
Veghelyi v The Law Society of New South Wales (Unreported, NSWCA, 6 October 1995)
Table of Contents
Introduction 5
The practitioner's background and previous findings against him 5
The proceedings in the State Administrative Tribunal 7
(1) Ms R and Mr B 8
(2) Ms F and Mr T 9
(3) Ms F-M 10
The recommendation of the State Administrative Tribunal 10
The practitioner's professional misconduct 10
(1) Ms R and Mr B 11
(2) Ms F and Mr T 12
(3) Ms F-M 14
This Court's powers in respect of penalty 15
The hearing before this Court 17
Matters arising subsequent to the hearing 19
Evidence concerning the practitioner's financial affairs 19
Evidence concerning overseas findings against the practitioner 20
Evidence concerning publicity 21
Legal principles concerning disciplinary penalties 21
Consideration of the practitioner's professional misconduct 23
Conclusions 29
- JUDGMENT OF THE COURT:
Introduction
1 Mr O'Halloran is a legal practitioner. He agreed to facts and consented to findings of professional misconduct by the State Administrative Tribunal. The facts and findings concern five proceedings which were the subject of reports transmitted to this Court by the State Administrative Tribunal. Based on those reports, this is an application by the Legal Profession Complaints Committee for orders that the practitioner
(i) be struck off the roll of practitioners of this Court; and
(ii) pay compensation to five persons in sums ranging from $7,000 to around $53,000.
2 The issues which are the subject of these proceedings are not isolated instances. The State Administrative Tribunal, which recommended the removal of the practitioner's name from the roll in its 5 July 2013 report, explained that the practitioner’s course of conduct in gross overcharging reflected his approach to practise over a period of approximately eight years, from October 2003 to July 2011. The total period during which the practitioner engaged in professional misconduct in relation to fees extended over a period of over 12 years, from April 1999 to July 2011. This 12-year period constitutes almost 40% of the practitioner's period of practice.
3 Other matters arose at the hearing of this application which required further evidence and submissions on behalf of the Legal Profession Complaints Committee and the practitioner. Neither party sought a further oral hearing after the filing of that further evidence and those submissions.
4 Having considered all of the facts in this case, the appropriate order is that the practitioner be removed from the roll of practitioners.
The practitioner's background and previous findings against him
5 The practitioner was admitted to legal practice in Western Australia on 23 December 1980. Since then, and until mid-2012,1 he has held a practising certificate. The practitioner practised on his own account at all times relevant to the findings of professional misconduct.
6 The practitioner is from a humble background. Over the course of more than three decades, he provided representation for around 4,000 people in the field of personal injury. Many of those clients were people from underprivileged backgrounds. Employees of the practitioner have given evidence before this Court of his passion and of his commitment. Colleagues have spoken of his hard work for his clients. One colleague of the practitioner's gave evidence in this Court of the practitioner's high degree of skill in this under-represented field of law and the practitioner's empathy for, and rapport with, many of his clients. An officer from the Injured Person's Action and Support Association has deposed to her view that the practitioner is by far the best practitioner that the organisation has used in 25 years and the loss that the organisation would suffer without his services. The practitioner has also campaigned for the rights of injured workers, including with the use of his own funds. In 2000, the practitioner won an award for his work in this area from the Australian Plaintiffs' Lawyers Association.
7 The first series of complaints against the practitioner, in 2009, did not result in adverse findings and were resolved by consent. They were as follows.
8 On 26 February 2009 the Legal Profession Complaints Committee commenced proceedings against the practitioner in the State Administrative Tribunal in relation to allegations of overcharging a client, Mr W. Around 8 February 2012, the practitioner reached agreement with the Legal Profession Complaints Committee with respect to this disciplinary action. The Committee was given leave to withdraw that complaint after the practitioner paid $30,000 to Mr W.2
9 In September 2009, the Legal Profession Complaints Committee commenced an investigation in relation to allegations of overcharging of Ms M by the practitioner. An agreement was reached by which the practitioner promised to refund $27,000 to Ms M by fortnightly instalments of $2,500 commencing at the end of August 2012.3 The Committee took no further action. But the agreed payment was not made to Ms M.
10 On 28 June 2011, the State Administrative Tribunal made findings that the practitioner had engaged in professional misconduct and unsatisfactory professional conduct.4 The findings related to five separate matters.
11 The first matter which amounted to professional misconduct involved the practitioner’s failure to make superannuation contributions, or to lodge superannuation guarantee statements within the time required with respect to numerous employees from mid-2005 to September 2007.5
12 Each of the second, third, fourth and fifth matters related to different clients of the practitioner. These matters amounted to professional misconduct for a number of different reasons. These reasons included the following: from late October 2003 to March 2007 the practitioner charged the four clients grossly excessive fees; the practitioner billed the four clients for charges which were not properly able to be charged; and from April 1999 to late January 2004 the practitioner entered costs agreements with some of these clients which included unreasonable minimum charges and unlawful charges.
13 The practitioner's conduct was not found to be deliberate but the State Administrative Tribunal concluded that at the time of the hearing of the matters the practitioner had shown no insight into his wrongdoing. The Tribunal said6
The hearing of these matters took place in 2011. The practitioner gave lengthy evidence during which he strived to justify his unjustifiable approach to charging. He demonstrated no insight whatsoever.
14 The practitioner was suspended from practice for six months. His application for leave to appeal from the tribunal's decision was refused.7 Prior to the conclusion of the 2011 proceedings the practitioner had been in practice for 30 years with no disciplinary finding against him.8 The six-month suspension took effect from 5 April 2013.
15 The proceedings now before this Court involve five further instances of professional misconduct.
The proceedings in the State Administrative Tribunal
16 This application is brought consequent upon five further findings of professional misconduct against the practitioner by the State Administrative Tribunal. Each finding of professional misconduct was ultimately made with the consent of the practitioner.
(1) Ms R and Mr B
17 The first two sets of findings concern proceedings in relation to Ms R and Mr B. Those proceedings were commenced against the practitioner in the State Administrative Tribunal on 24 October 2012. The practitioner initially disputed the allegations. He later admitted professional misconduct, and agreed all the facts and contentions upon which the finding was based.
18 On 19 March 2013, by consent of the parties, the facts were found and the findings of professional misconduct made by Sharp DCJ in the State Administrative Tribunal.
19 The jurisdictional basis for the finding of professional misconduct by Sharp DCJ, sitting as a single member of the Tribunal, might be doubtful for the following reasons:
(i) As the finding of professional misconduct arose by the agreement of the parties, it was made under s 56(1) of the State Administrative Tribunal Act 2004 (WA).
(ii) Section 56(1) permits the State Administrative Tribunal to make orders to give effect to a settlement of proceedings between the parties. This power is confined by s 56(2) to circumstances in which the Tribunal 'is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement'.
(iii) The terms of the settlement in relation to Ms R and Mr B included a finding of professional misconduct which falls within the power conferred upon the Tribunal by s 438 of the Legal Profession Act 2008 (WA).
(iv) Subject to various exceptions, s 437 of the Legal Profession Act 2008 requires the Tribunal to be constituted by the three members provided in s 437 when exercising the jurisdiction conferred by s 438 of the Legal Profession Act 2008. One exception to the requirement that the Tribunal be constituted by the three members described in s 437 arises when the Tribunal makes interlocutory or interim orders. But although Sharp DCJ also made orders adjourning the proceeding for a hearing on penalty, compensation and costs, his orders under s 56(1) of the State Administrative Tribunal Act were in the nature of final declarations of professional misconduct.
20 Although there may be real doubt about the power of Sharp DCJ, sitting alone, to have made findings of professional misconduct, this issue was not the subject of any submissions by the practitioner nor was it the subject of any oral argument in this Court. It is ultimately unnecessary to decide this question for three reasons.
21 First, this Court has inherent power to supervise and discipline legal practitioners. The facts and contentions upon which the findings of professional misconduct were made by Sharp DCJ were agreed facts and contentions in the State Administrative Tribunal and agreed facts in this Court.
22 Secondly, and for reasons explained below, we respectfully agree with Sharp DCJ that the agreed facts constitute professional misconduct.
23 Thirdly, the reports provided to this Court by the State Administrative Tribunal, were from the Tribunal properly constituted under s 437 and the power of the Tribunal to make and transmit a report to the Supreme Court required that the Tribunal be satisfied that the practitioner is guilty of unsatisfactory professional conduct9 or professional misconduct.10 All the agreed findings, and the agreed facts, were considered in the 5 July 2013 report from the Tribunal to this Court.11
(2) Ms F and Mr T
24 The second two sets of findings concern proceedings in relation to Ms F and Mr T. These proceedings were commenced against the practitioner in the State Administrative Tribunal on 11 February 2013. The practitioner admitted professional misconduct as well as all the facts and contentions upon which the finding was based.
25 On 10 May 2013, with the consent of the practitioner, findings of professional misconduct were made by the State Administrative Tribunal, constituted by the Deputy President (Judge Parry), Member Moore and Senior Sessional Member Dembo. These findings, and the facts upon which they were based, were considered in the 5 July 2013 report from the State Administrative Tribunal to this Court together with Ms R's and Mr B's cases.12
(3) Ms F-M
26 On 28 June 2013, further proceedings were commenced in the State Administrative Tribunal against the practitioner.
27 On 2 August 2013, again with the consent of the practitioner, a finding of professional misconduct was made by the State Administrative Tribunal and a report transmitted to this Court.13 The Tribunal was constituted by the Deputy President (Sharp DCJ), Senior Member Raymond and Member Gillett.
The recommendation of the State Administrative Tribunal
28 In its 5 July 2013 report, the State Administrative Tribunal set out all of the agreed facts and contentions in relation to Ms R, Mr B, Ms F and Mr T, considered the law relating to the practitioner's conduct, and recommended that the practitioner's name be removed from the roll of practitioners.
29 This Court has to consider that recommendation together with the subsequent agreed facts and finding of professional misconduct in relation to Ms F-M.
The practitioner's professional misconduct
30 The reports from the State Administrative Tribunal set out the agreed facts upon which the professional misconduct of the practitioner is based comprehensively. The facts are contained in 37 pages in the 5 July 2013 report14 together with a detailed booklet which formed the 2 August 2013 report concerning Ms F-M. As was the case before the State Administrative Tribunal, none of the facts or contentions was disputed before this Court.
31 It is not necessary to repeat all of the detail of the facts, contentions and findings. It is sufficient to summarise the key adverse facts and findings involving professional misconduct.
(1) Ms R and Mr B
32 On 10 September 2009, the practitioner was engaged to act for Ms R and Mr B in relation to damages claims arising from a motor vehicle accident. The practitioner entered into costs agreements with them both.
33 In both matters the claims were routine. Neither involved any complex or difficult factual or legal matters.15 Both claims were settled.
34 In relation to Ms R, the following occurred.
(i) On 4 April 2011 a payment of $37,385 as agreed damages was made by the Insurance Commission into the practitioner’s trust account.16
(ii) For the course of his legal representation of Ms R, the practitioner rendered to Ms R, and received from her, professional fees of $30,490 including GST and $1,130 of disbursements.17 A reasonable charge for the legal services including GST but not disbursements would have been around $20,730.18
(iii) The terms of the settlement also involved the Insurance Commission paying Ms R's costs to be taxed.19 On 8 April 2011, the practitioner sent the Insurance Commission a draft bill of costs for taxation in the amount of $42,442.20
35 In relation to Mr B, the following occurred.
(i) On 5 April 2011 a payment of $30,000 as agreed damages was made by the Insurance Commission.21
(ii) Over the course of his legal representation of Mr B, the practitioner rendered to Mr B, and received from him, professional fees of $24,922 including GST (and $741 of disbursements).22 A reasonable charge for the legal services including GST but not disbursements would have been around $17,841.23
(iii) The terms of the settlement also involved the Insurance Commission paying Mr B's costs to be taxed.24 On 8 April 2011, the practitioner sent the Insurance Commission a draft bill of costs for taxation in the amount of $35,111.25
36 The findings of professional misconduct in relation to the matters described above included the grossly excessive amount of the fees which were charged. They also included seeking payment from the Insurance Commission of Western Australia of costs in excess of the amount charged to Ms R and Mr B. These matters occurred over the period of 4 April 2011 until 11 July 2011.26
37 There were other matters of professional misconduct including charging fees in excess of the amount permitted by a written costs agreement with Ms R and Mr B. The practitioner charged each of Ms R and Mr B a fixed amount of two six minute units per page.27 In addition, the costs disclosure statement given to Ms R and Mr B made materially incomplete or misleading disclosures.28
(2) Ms F and Mr T
38 On 15 September 2005 and 29 November 2006 respectively, the practitioner was engaged to act for Mr T and Ms F in relation to damages claims arising from their motor vehicle accidents. The two matters raise different issues so we have dealt with the bases for the findings of professional misconduct in relation to each of Ms F and Mr T separately below.
39 Ms F's claim did not involve factual or legal issues that were complex or difficult. Nor did it require any greater amount or type of legal services than would normally be expected for an average motor vehicle accident claim.29
40 The costs agreement between Ms F and the practitioner purported to allow the practitioner to charge more than he was permitted to charge under the Motor Vehicle (Third Party Insurance) Act 1943 (WA) and the relevant costs determinations under the Legal Practice Act 2003 (WA).
41 The violations of the law in relation to the costs agreement included:
(i) provisions for charges for a minimum charge based on 12 minutes of time per page (or part of a page) for outgoing correspondence, court documents, statements, proofs etc;30 and
(ii) a minimum charge based on six minutes of time for all legal or clerical time spent, and $160 per hour for all clerical and non-professional time spent on tasks such as collating and photocopying, outside deliveries and attendances, incoming and outgoing telephone conversations, messages, and file notes.31
42 The practitioner told Ms F that he would invoice her at the conclusion of the matter, rather than sending her interim bills.32 He also told her in a costs disclosure statement that he would provide her with an estimate of party and party costs before entering a costs agreement.33 He did not comply with either of these undertakings.34
43 Between 29 November 2006 and 1 July 2011,35 the practitioner charged $66,881 including GST to Ms F for legal services in this matter.36 A reasonable charge for those services would most probably have been $32,695.37 Ms F paid $48,400.38
44 The findings of professional misconduct against the practitioner in relation to Ms F resulted from matters including (i) the grossly excessive amount of fees charged, (ii) the unreasonable terms of the costs agreement provided by the practitioner and the nature of those terms as contrary to statute and costs determinations, and (iii) the practitioner’s failure to comply with the undertakings he had made to Ms F in relation to costs.39
45 As for Mr T's claim, around 15 September 2005, the practitioner entered a costs agreement with Mr T.40 It was an agreed fact that Mr T's claim was not a routine claim; it involved factual or legal issues which were complex or difficult.41
46 The costs agreement between the practitioner and Mr T provided that the practitioner was entitled to render accounts from time to time during the proceedings, which would usually be monthly but might be less frequently at the practitioner's discretion.42 Contrary to this representation, the practitioner routinely rendered interim bills two or three times each month.43
47 The invoices rendered by the practitioner to Mr B charged a fixed rate of 12 minutes of time (as two six minute units) for each page of various outgoing correspondence. The invoices did not charge for the actual time spent to complete the work.44 This resulted in overcharging and was contrary to the costs agreement.
48 The practitioner's retainer was terminated on Mr B's behalf on 28 July 2009.45 During the course of his retainer, the practitioner charged $68,832 including GST to Mr T and received $63,105.46 A reasonable charge would have been approximately $29,800 or not more than $28,875.47
49 The findings of professional misconduct in relation to Mr T resulted from (i) the grossly excessive amount of the fees charged, (ii) charging fees contrary to the terms of a costs agreement; (iii) providing misleading costs information to Mr T in a costs disclosure statement; and (iv) rendering interim bills to Mr T more frequently than the practitioner had represented that he would. These matters occurred over the period of about 15 September 2005 to 29 July 2009.48
(3) Ms F-M
50 On 22 May 2006, the practitioner was engaged to act on behalf of Ms F-M in litigation seeking damages arising from an injury Ms F-M sustained in the court of her employment.
51 The practitioner entered into a purported costs agreement with Ms F-M and provided her with a costs disclosure statement and a costs estimate.
52 Ms F-M's claim was not entirely routine in nature; it involved a legal issue that was unusual.49 On 20 August 2010, the matter was settled with Ms F-M's employer's insurer on terms which included a payment of $105,000 as general damages, proved special damages, and Ms F-M's costs of the action to be taxed.50
53 Over the course of his representation of Ms F-M, the practitioner charged, and received, $95,823 (including GST but excluding disbursements and counsel's fees). A reasonable charge for the practitioner's services, inclusive of GST but exclusive of disbursements, was about $42,530.51
54 The practitioner also charged Ms F-M a fixed charge for 12 minutes (as two six minute units) for each page of outgoing correspondence rather than charging for the actual time that he spent writing that correspondence. These charges were contrary to his costs agreement with Ms F-M and contrary to his costs disclosure to her.52
55 Other breaches of duty by the practitioner involved charging Ms F-M $1,160 for the printing of documents, which was not a billable item under the costs agreement53 and failing to provide Ms F-M with an estimate of party and party costs before she entered into the costs agreement although he had represented to her that he would do so if reasonably possible (which it was).54
This Court's powers in respect of penalty
56 Section 444(2) and s 444(3) of the Legal Profession Act 2008 provides for powers of this Court upon reading the reports from the State Administrative Tribunal. The powers under that section are as follows:
(i) to make any order that the State Administrative Tribunal court make under section 439, 440 and 441 of the Legal Profession Act 2008;
(ii) to order the removal from the roll of the name of an Australian legal practitioner who is a local lawyer; and
(iii) to make an order for the payment of costs by the legal practitioner as the Court thinks fit.
57 The possible orders empowered by sections 439, 440 and 441 are wide ranging. In summary, some of the many orders empowered by those sections include the following.
(i) Orders that the practitioner's practising certificate be suspended for a specified period or cancelled.55
(ii) Orders that a local practising certificate not be granted to the practitioner before the end of a specified period.56
(iii) Orders that specified conditions be imposed on the practitioner's practising certificate for a specified time and a time after which the practitioner may apply to the State Administrative Tribunal for the conditions to be amended or removed.57
(iv) Orders publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner.58
(v) Orders that the practitioner undertake and complete a specified course of further legal education.59
(vi) Compensation orders60 which includes orders that the practitioner must repay the whole or a specified part of the amount charged by the practitioner in respect of specified legal services to a person who suffers loss because of the conduct of that legal practitioner and complains about that conduct.61
58 The orders listed above are within this Court's powers under the Legal Profession Act 2008. TheLegal Profession Act 2008 commenced operation on 1 March 2009 and repealed the Legal Practice Act 2003 (WA).
59 The Legal Profession Act 2008 is the relevant Act which applies to the practitioner's conduct between September 2010 and July 2011 in relation to Ms R and Mr B. But, in relation to Ms F, Mr T and Ms F-M, the practitioner's conduct occurred during a period in which the Legal Practice Act 2003 (WA) was still in force. Nevertheless, pt 13 (Complaints and Discipline) of the Legal Profession Act 2008 applies to this earlier conduct of the practitioner in circumstances in which each application in relation to Ms F, Mr T and Ms F-M was brought after the Legal Profession Act 2008 commenced on 1 March 2009. Section 622 of the Legal Profession Act 2008 provides as follows:
622 Discipline
(1) Part 13 applies in relation to conduct of Australian lawyers, former Australian lawyers, Australian legal practitioners and former Australian legal practitioners whether the conduct occurred before or after the commencement day [1 March 2009].
(2) Part 13 applies to conduct consisting of a contravention of the 1893 Act or the 2003 Act or the rules in force under those Acts before the commencement of this section as if the conduct consisted of a contravention of this Act or the legal profession rules.
The hearing before this Court
61 In written submissions prior to the hearing before this Court, senior counsel for the practitioner said that the practitioner did not oppose compensation orders or orders to pay the costs in this Court of the Legal Profession Complaints Committee. However, he asserted that the practitioner had no immediate capacity to pay any compensation or costs until properties which the practitioner has on the market are sold and the value of his available assets is determined.62 We return to this point below.
62 The focus of the written submissions prior to the hearing before this Court was whether, in light of the matters described above, the practitioner's name should be removed from the roll of practitioners as the State Administrative Tribunal had recommended. The Legal Profession Complaints Committee supported this recommendation. The practitioner opposed it. Senior counsel for the practitioner submitted that the public interest would be adequately served by suspending the practitioner for a period of time, such as 12 months, and ordering that there be a condition on his current practising certificate prohibiting him from practising except under supervision.
63 One matter which arose at the hearing before this Court was the failure by the practitioner to reimburse fully the clients who he had been found in previous proceedings to have grossly overcharged or who he had agreed to reimburse.
64 The State Administrative Tribunal concluded that the practitioner's professed willingness to pay compensation to the clients the subject of these proceedings was hollow because he had not offered any realistic plan or proposal as to how his clients would ever be repaid their money.63
65 Promised monthly repayments to one former client, Mr D, concluded in July 2012, leaving $5,000 outstanding.64 Promised fortnightly payments to another client, Ms M, amounting to $27,000 in compensation, were never made at all.65 The practitioner has also failed to pay $133,998 in costs to the Committee as ordered in the 2011 proceedings.66
66 In this Court, the practitioner was asked to explain why these payments had not been made and how the practitioner proposed to make them.67 The Court enunciated a concern about the absence of evidence of any proposed plan for repayment arising from compensation orders in this case. The compensation orders sought by the Legal Profession Complaints Committee in this case were not opposed by the practitioner. But there was insufficient evidence that he had any realistic plan for repayment of the individuals the subject of these proceedings even though he had agreed the facts comprising his overcharging more than 6 months prior to the hearing.68
Matters arising subsequent to the hearing
Evidence concerning the practitioner's financial affairs
67 In a subsequent affidavit after the hearing, the practitioner explained that the inadequacy of his previous evidence was a consequence of the crisis in his life and turmoil he has faced over the last two years. He said that he had found it difficult to manage his financial affairs and did so only with a great deal of assistance from his senior counsel.69 This is consistent with evidence from the Legal Profession Complaints Committee that the practitioner's accountant had informed the Committee's Senior Legal Officer that the accountant had not carried out any work in relation to the practitioner's superannuation fund for some time and thought that the fund is now non-compliant.70
68 The practitioner subsequently provided several recent years of profit and loss summaries as well as draft income tax returns for himself and his trust. For the last four years his trust has made little profit, and no profit at all for the last two years.71 Although in a personal capacity he made large profits in the years ended 30 June 2010 and 30 June 2011, the practitioner has made significant losses for the last two years.72
69 As to the practitioner's assets, the evidence of this was presented in broad-brush terms. The Legal Profession Complaints Committee provided evidence that the practitioner owns properties in Nedlands, Crawley, Northbridge and Nottingham, United Kingdom.73 There is also evidence of the practitioner having purchased antiques and paintings worth $600,000.74 Some or all of these antiques or paintings appear to be part of the practitioner's superannuation fund.
70 It is, however, unclear whether the practitioner is, or will be, in a position to obtain sufficient funds to repay his former clients and costs orders from a sale of any or all of his property. In particular, his wife may have an interest which covers the whole of any remaining equity in the Nedlands and Crawley properties.75 The Northbridge property is subject to a Property (Seizure and Sale) order obtained by the Legal Profession Complaints Committee and,76 in any event, the sale of it may not realise sufficient funds to discharge the entitlement of the mortgagee.77 The Nottingham property has been advertised for sale with a guide price which is about £24,000 more than the amount required to discharge the bank's charge.78 The practitioner's accounting advice is that other assets which are part of the practitioner's superannuation fund might not be available for four years.79
Evidence concerning overseas findings against the practitioner
71 On 9 October 2013, a legal officer employed by the Legal Profession Complaints Committee conducted a Google search about the practitioner. She discovered a decision dated 14 November 2012 from the Solicitors' Disciplinary Tribunal of the United Kingdom where the practitioner was ordered to pay a fine of £20,000 in relation to five allegations of misconduct.80 A decision of that Tribunal was attached to affidavit evidence filed after the hearing.81
72 The decision explains that the practitioner was admitted to practice in England in 1994.82 The practitioner did not appear before the Solicitors' Disciplinary Tribunal and was not represented. The practitioner responded only to one letter sent to him by the Solicitors' Regulation Authority concerning the allegations. He said: 'Please note that I will not be in a position to attend any Tribunal hearing as I live and work in Australia'. In that letter he also denied the allegations of unprofessional conduct and purported to set out matters in his defence.83
73 The allegations before the Solicitors' Disciplinary Tribunal were that the practitioner (i) had failed to notify the Solicitors' Regulatory Authority of a change in ownership of the English law practice he established in 2006; (ii) had failed to ensure effective management and supervision of the practice; (iii) had failed to apply for recognition as a sole practitioner; (iv) had failed to pay the premium due for indemnity insurance; and (v) had failed to deal with the Solicitors' Regulatory Authority in an open, prompt and co-operative way.84
74 The allegations were found by the Tribunal to be proved beyond reasonable doubt.85
75 Section 88 of the Legal Profession Act 2008 provides that if foreign regulatory action has been taken in relation to a local legal practitioner, the practitioner must, as soon as practicable, give the Legal Practice Board written notice of the action taken. The practitioner's response is discussed below, but the short point is that even apart from the legal obligation in s 88, in circumstances in which this Court was hearing disciplinary proceedings against the practitioner concerning his fitness to practise it is relevant that he did not bring this matter to the attention of the Court.
Evidence concerning publicity
76 Finally, the practitioner provided affidavit evidence of publicity concerning these proceedings, and also earlier findings of professional misconduct against him, in newspapers and at a professional development conference.86 The effect of the publicity on the practitioner's reputation is a matter relevant to penalty.
Legal principles concerning disciplinary penalties
77 The legal principles which guide the disciplinary measures available to this Court in relation to legal practitioners are well settled. They were set out recently by this Court in Legal Profession Complaints Committee v in de Braekt.87 In that case, this Court set out those well-established principles as follows (citations omitted):
24 ... 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 ...
25 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 [sic] law requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges ...
26 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 ... In Barristers' Board v Darveniza,88 Thomas JA observed that:
[T]he quality most likely to result in striking off is conduct which undermines the trustworthiness of the practitioner, or which suggests a lack of integrity or that the practitioner cannot be trusted to deal fairly within the system which he or she practises.
Professional misconduct may not necessarily require a conclusion of unfitness to practise, and removal from the roll. In that regard, it is to be remembered that fitness is to be decided at the time of the hearing. The misconduct, whether or not it amounts to professional misconduct, may have occurred years earlier.
79 This Court was referred to numerous decisions from this jurisdiction and elsewhere concerning penalties for professional misconduct involving overcharging. Many of those decisions involved a practitioner being struck off the roll of practitioners, particularly where the conduct was deliberate.91 But some did not.92 Ultimately, the facts of each of those decisions differ sufficiently from this case to render the authorities of little persuasive relevance for the purposes of factual comparison.
Consideration of the practitioner's professional misconduct
80 We have deliberated carefully over all the material with which we were provided. The penalty of striking a practitioner off the roll is an extreme measure. There are numerous other sanctions available for professional misconduct. But, in this case, we have come to the view that the practitioner is not a fit and proper person to practise even with the substantial conditions proposed by senior counsel for the practitioner. Nothing short of removal from the roll is sufficient as a measure for protection of the public.
81 There are a number of matters which militate in support of the practitioner. In particular, the practitioner has worked in an under-represented field of law providing an important service to the public. Since 1980 he has represented around 4,000 people. His colleagues have spoken of his skill in this area. He has won awards for his service. He has campaigned for the rights of injured workers.
82 There have also been difficult events in the practitioner's personal life which he has handled with compassion and with dignity. Those events do not provide any excuse or justification for the practitioner's professional misconduct but they do explain, in part, some of his distraction from the proper performance of his duties as a practitioner.
83 The practitioner's conduct has also attracted publicity. It has brought him shame. His financial circumstances have deteriorated enormously. We also accept his evidence that the findings against him have had a devastating effect on every aspect of his life and the life of his family.93
84 The practitioner was suspended from practice for six months, which commenced on 5 April 2013. He has not practised since the end of that suspension period, following his undertaking to this Court not to do so. Without income from legal practice it may be very difficult for him to repay his former clients and the costs orders against him.
85 We have taken into account that the practitioner now accepts that he has made gross errors of judgement. But he explains these errors on the basis that he 'simply failed to keep fully abreast of such significant changes to the costing regime, which were never a part of the landscape for most of [his] career'.94 This explanation trivialises the seriousness of the practitioner's conduct in relation to billing. The practitioner’s explanation does not mention that the combined findings of professional misconduct against him span a period of 12 years of his 30-year career. It ignores the misleading nature of the draft bills which he sent to the Insurance Commission of Western Australia. And it does not explain his less than forthright evidence before this Court and before the State Administrative Tribunal concerning the findings made against him in England.
86 There are six reasons in combination which explain why the protection of the public requires that the practitioner be removed from the roll.
87 First, there are all the facts of the professional misconduct by the practitioner described above. One of the central abuses by the practitioner was his gross overcharging of clients. The excessive amounts of the fees charged by the practitioner and the percentage they exceeded a reasonable charge were as follows:
(i) $9,759 or 47% overcharge (Ms R),
(ii) $7,080 or 39% overcharge (Mr B),
(iii) $34,186 or 104% overcharge (Ms F),
(iv) $39,031 or $39,957; or either 130% or 138% overcharge (Mr T); and
(v) $53,293 or 125% overcharge (Ms F-M).
88 The overcharging involved amounts which are substantial both in absolute terms as well as in proportion to the proper charge and the size of each claim.
89 The material already outlined sustains the Committee's submission that the practitioner has exhibited a continuing and pervasive inability to understand the importance of, and to discharge, his professional obligations to charge fairly and reasonably and his other obligations relating to the agreeing, charging and recovering of remuneration.
90 Senior counsel for the practitioner explained in the hearing before us that the practitioner accepts the views of his colleagues that it would be inappropriate for him to continue to continue to be engaged in running a practice or rendering accounts and he would be best placed not having anything to do with the issues relating to rendering of costs or managing a practice.95 The practitioner's apparent acceptance that he is permanently unable to bill clients in a proper and appropriate way in itself gives rise to doubt about his fitness to practice.
91 Secondly,the clients who were subject to this gross overcharging were all particularly vulnerable.
92 It is usual that lay clients of a solicitor are vulnerable to the control exerted by the solicitor. This is why the common law developed what is sometimes described as a 'presumption' of undue influence by a solicitor over a client. Lord Nicholls of Birkenhead even described this 'presumption' as 'irrebuttable'.96 The practitioner's clients in each of these matters were even more vulnerable than the usual client of a legal practitioner. They had all suffered serious personal injury. The particular vulnerability of personal injury plaintiffs in this respect led to legislative intervention in relation to the permissible scale of charges in that field. As the practitioner acknowledges, his practice generally involves clients with significant physical and psychiatric injuries, often with difficult and complex cases.97 For instance, the practitioner's file note made after his first meeting with two of the clients in these proceedings, Ms R and Mr B, showed that he was aware that they were both on disability pension or old age pensions, that neither had any income, and that the consequence of their car accident left both with pain and suffering.98
93 Thirdly, past findings against the practitioner are relevant to the consideration of penalty in this case. These past findings are not relied upon in order to punish the practitioner. But 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 incidents which are the subject of the findings in the five matters before this Court are not isolated occurrences. As Murray and Beech JJ said in Legal Practitioner Complaints Committee v Pepe99
the purpose of the maintenance of proper standards in the legal profession for the protection of the public may require this court to consider matters, particularly the seriousness of the offending behaviour, which go beyond what might strictly be required to secure the outcome that the practitioner is appropriately punished and would be unlikely to offend in the same manner again.
94 In this regard, the conclusion of the State Administrative Tribunal in its report to this Court is relevant. The Tribunal explained that it had been, in effect, conceded on behalf of the practitioner that his course of conduct in gross overcharging reflected his approach to practice over a period of approximately eight years.100 The Tribunal also explained that the total period during which the practitioner engaged in professional misconduct extended over 12 years, constituting almost 40% of the practitioner's period of practice.101
95 Further, some of the conduct the subject of the application before this court arose after the past proceedings and even the past findings against the practitioner. Proceedings were commenced against the practitioner in relation to his billing practices in 2009.102 At the very latest, by 28 June 2011 when the State Administrative Tribunal made its findings described above at [10] - [13], the practitioner should have been aware that there was a real risk that he had engaged in improper billing practices. Even if, as was the case, the practitioner intended to appeal that decision, the decision of the Tribunal involved findings against him by a specialist and experienced panel which should have alerted the practitioner to potential deficiencies in his billing practices. Yet, shortly after the decision, on 8 July 2011 and 11 July 2011, the practitioner sent two of the bills which were considered by the State Administrative Tribunal in the proceedings concerning Mr B and Ms R. The amounts of those invoices were, respectively $1,363 and $942. The first of these was the subject of specific adverse findings as to a very small amount.103 Both were the subject of the overall assessment of unreasonableness of billing and both appear to involve the use of a minimum one or two unit charges of six minute units. The practitioner's explanation in cross-examination before the Tribunal was that he had not carefully read the Tribunal's decision and he found it very difficult to read it.104 He said that the decision had 'traumatised' him and that it took a 'long time to come to grips with it'.105 But in circumstances in which he was aware of the decision and its result, and knew that it concerned his billing practices, his further improper billing was, at best, reckless. The explanation in written submissions in this Court was that these accounts 'were of very limited significance'. This trivialises the conduct.
96 Fourthly, the practitioner's conduct in relation to the Insurance Commission of Western Australia is also relevant. As we have explained, on 8 April 2011, the practitioner sent the Insurance Commission of Western Australia a draft bill of costs for Ms R and Mr B which was substantially in excess of the costs charged to each of them.
97 The practitioner's affidavit before the State Administrative Tribunal sought to justify the draft bills sent to the Insurance Commission on the basis that the draft bills 'were prepared based on the work-in-progress records' and 'were a negotiating tool'.106 The Tribunal noted the following cross-examination:107
Do you still think that that is something that is acceptable to do?---Yes, provided it's supported by the WIP [work-in-progress] records, which it was. It was based on the WIP records. I certainly didn't claim for something that had not been done in order to get more from [the Insurance Commission] than would have been legitimately claimable.
98 But the Insurance Commission had agreed to pay the actual costs of Ms R and Mr B, to be taxed. It had not agreed to pay work-in-progress. Nor did the draft bills say that the amount was work-in-progress. It cannot be a legitimate 'negotiating tool' to mislead another in this way.
99 Fifthly, the practitioner was not frank with this Court concerning findings which had been made against him in England.
100 After the evidence of the English disciplinary findings against Mr O'Halloran was brought to the notice of this Court by the Legal Profession Complaints Committee, the practitioner responded by saying that (i) he was not aware of his obligation to give notice of foreign regulatory action under s 88 of the Legal Profession Act, and thought that this was a matter to report at the time he renewed his practising certificate; (ii) it was not his intention to conceal these matters of public record; and (iii) he thought that the Solicitors' Disciplinary Tribunal had reported the matter to the Legal Practice Board. 108
101 None of these answers explains why the practitioner did not bring this matter to the attention of this Court or (previously) to the attention of the State Administrative Tribunal in circumstances in which (i) he was aware that the Legal Profession Complaints Committee had not done so and (ii) he had made reference in this Court,109 and in the State Administrative Tribunal, to the fact that he had set up a practice in Nottingham.110
102 Sixthly,it is a matter of concern that some of the practitioner's former clients have not been repaid sums which have been promised to them as restitution of the amounts by which they were overcharged. The practitioner's previous undertakings to repay were, at best, borne of desperate optimism. His current financial position renders him unable to service his loans and without any income for the last 6 months from any source.111
103 In the material that the practitioner provided to the Court prior to the hearing on 16 September 2013 he did not adequately explain what efforts he had made to pay reparation to the relevant clients, what assets he had that may be available for that purpose, and what he now proposed in relation to reparation.
104 Some of the facts to which we have referred, standing alone, might have been able to be resolved by orders other than an order removing the practitioner's name from the roll of legal practitioners. For instance, senior counsel for the practitioner submitted that:
(i) the practitioner could be suspended from practice for a period of time as both a specific and a general deterrent in relation to the professional misconduct;
(ii) the practitioner could hold any funds received by him from the sale of his property or from provision of legal services, in trust for the benefit of the five persons the subject of these proceedings with terms of the trust to include that the trust fund to be managed by a local legal practitioner;
(iii) the practitioner not be granted a certificate to practice as a legal practitioner except on a condition that he is supervised by another legal practitioner of sufficient expertise to supervise him adequately in the practice of the law, as approved by the Legal Practice Board; or
(iv) in the event that the practitioner is granted a practising certificate, and that amounts of compensation remain to be repaid, then the practising certificate shall be subject to a condition that the practitioner pay the balance of such amount remaining unpaid from his income from legal practice on such reasonable terms as the Legal Practice Board may direct, after taking into account evidence from the practitioner about his financial circumstances.
105 These orders might have been sufficient to address some of the facts amounting to professional misconduct, if those facts had been more limited and if they could be viewed in isolation. But the following matters, in all the circumstances, necessarily compel the conclusion that the practitioner is not a person whose character and integrity in legal practice could permit him to be entrusted with fiduciary responsibilities:
(i) the protracted period of misconduct (12 years);
(ii) the magnitude of the overcharging;
(iii) his repeated exploitation of vulnerable clients for his own benefit;
(iv) the continuation of the misconduct even after an adverse finding by the State Administrative Tribunal;
(v) the implicit misrepresentation in his dealings with the Insurance Commission to the effect that he would charge his clients the amounts claimed from the Commission;
(vi) his entry into arrangements to compensate his former clients without making any realistic attempt to comply with those arrangements; and
(vii) his failure to advise either the Legal Practice Board, the State Administrative Tribunal or this Court of the disciplinary proceedings that were taken against him in England or their result.
106 For these reasons, we consider that the practitioner is not a fit and proper person to practise law.
Conclusions
107 For the reasons above, we conclude that the practitioner's name should be removed from the roll of legal practitioners.
108 As for the other orders sought by the Legal Profession Complaints Committee, a compensation order is not to be made unless the practitioner and the aggrieved person agree on the order, or if this Court112 is satisfied that the aggrieved person has suffered loss because of the conduct concerned and that it is in the interests of justice that the order be made.
109 The practitioner does not contest the making of compensation orders which require the practitioner to repay the amounts described above immediately below.113 Whether or not this constitutes 'agreement' by the practitioner,114 we are satisfied that each of the persons has suffered loss by reason of the amount of the payments they made to the practitioner in excess of what was reasonable. Those amounts were as follows:
(i) $9,759.93 (Ms R);
(ii) $7,080 (Mr B);
(iii) $15,705 (Ms F);
(iv) $34,230 (Mr T); and
(v) $53,293 (Ms F-M).
110 The practitioner also does not oppose an order requiring him to pay the costs of the Legal Profession Complaints Committee in this Court.115 That order is also appropriate.
1 Affidavit of Mr O’Halloran (sworn 30 October 2013) [22].
2 Affidavit of Ms Mahiepala (sworn 21 October 2013) [21] - [27].
3 Affidavit of Ms Mahiepala (sworn 21 October 2013) [50] - [55].
4Legal Profession Complaints Committee and O'Halloran [2011] WASAT 95.
5Legal Profession Complains Committee and O’Halloran [2011] WASAT 95 [46]; Legal Profession Complaints Committee and O’Halloran [2011] WASAT 95(S) [6].
6Legal Profession Complaints Committee and O'Halloran [2011] WASAT 95 (S) [47].
7O'Halloran v Legal Profession Complaints Committee [2013] WASCA 59.
8Legal Profession Complaints Committee and O'Halloran [2011] WASAT 95 (S) [50].
9 A possible alternative finding available under Legal Profession Act 2008 (WA) s 442.
10Legal Profession Act 2008 (WA) s 438(2)(a).
11Legal Profession Complaints Committee and O’Halloran [2013] WASAT 105.
12Legal Profession Complaints Committee and O’Halloran [2013] WASAT 105.
13 Report from the State Administrative Tribunal, 2 August 2013.
14Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105, 5 - 42 [8] - [10].
15Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (13), (56).
16Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (17).
17Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (30).
18Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (31).
19Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (16)(b).
20Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (46).
21Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (58).
22Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (74).
23Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (75).
24Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (16)(b).
25Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (65).
26Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (8).
27Legal Profession Complaints Committee and O’Halloran [2013] WASAT 105 [10] (19), (78).
28Legal Profession Complaints Committee and O’Halloran [2013] WASAT 105 [10] (4), (85).
29Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (92).
30Legal Profession Complaints Committee and O’Halloran [2013] WASAT 105 [10] (88).
31Legal Profession Complaints Committee and O’Halloran [2013] WASAT 105 [10] (88).
32Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (112).
33Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (112).
34Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (113), (116).
35Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [9], [10] (91).
36Legal Profession Complaints Committee and O’Halloran [2013] WASAT 105 [10] (102).
37Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (103).
38Legal Profession Complaints Committee and O’Halloran [2013] WASAT 105 [10] (105(b)).
39Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [9].
40Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (117).
41Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (130).
42Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (118).
43Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (143).
44Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (133) - (134).
45Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (131).
46Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (137).
47Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [10] (138).
48Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [9].
49 Report from the State Administrative Tribunal, 2 August 2013, Annexure A, 3 [10].
50 Report from the State Administrative Tribunal, 2 August 2013, Annexure A, 3 [11].
51 Report from the State Administrative Tribunal, 2 August 2013, Annexure A, 7 - 8 [39].
52 Report from the State Administrative Tribunal, 2 August 2013, Annexure A, 7 - 8 [40].
53 Report from the State Administrative Tribunal, 2 August 2013, Annexure A, 7 - 8 [41].
54 Report from the State Administrative Tribunal, 2 August 2013, Annexure A, 7 - 8 [43].
55Legal Profession Act 2008 (WA) s 439(a).
56Legal Profession Act 2008 (WA) s 439(b).
57Legal Profession Act 2008 (WA) s 439(c).
58Legal Profession Act 2008 (WA) s 439(d).
59Legal Profession Act 2008 (WA) s 441(b).
60Legal Profession Act 2008 (WA) s 441(c).
61Legal Profession Act 2008 (WA) s 448(1), s 448(2).
62 Practitioner's submissions (12 September 2013) [44].
63Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [61].
64 Affidavit of Ms Mahiepala (sworn 21 October 2013) [36].
65 Affidavit of Ms Mahiepala (sworn 21 October 2013) [55].
66 Affidavit of Ms Mahiepala (sworn 13 September 2013) [6] - [9].
67 ts 23.
68 ts 26.
69 Affidavit of Mr O'Halloran (sworn 8 October 2013) [3] - [4].
70 Affidavit of Ms Le Miere (sworn 21 October 2013) [5].
71 Affidavit of Mr O'Halloran (sworn 14 November 2013) 5.
72 Affidavit of Mr O'Halloran (sworn 14 November 2013) 6.
73 Affidavit of Ms Mahiepala (sworn 13 September 2013) attachment DNM8.
74 Affidavit of Mr O’Halloran (sworn 30 October 2013) [14]; Affidavit of Ms Le Miere (sworn 21 October 2013) [6]; Affidavit of Ms Mahiepala (sworn 21 October 2013) attachment DNM3.
75 Affidavit of Mr O’Halloran (sworn 8 October 2013) [11].
76 Affidavit of Ms Mahiepala (sworn 13 September 2013) attachment DNM9.
77 Affidavit of Mr O'Halloran (sworn 8 October 2013) [17] - [35].
78 Affidavit of Mr O’Halloran (sworn 30 October 2013) [13].
79 Affidavit of Mr O'Halloran (sworn 8 October 2013) [53].
80 Affidavit of Ms Mahiepala (sworn 21 October 2013) [66].
81Solicitors Regulatory Authority v Paul O'Halloran (United Kingdom Solicitors Disciplinary Tribunal, 14 November 2012).
82Solicitors Regulatory Authority v Paul O'Halloran (United Kingdom Solicitors Disciplinary Tribunal, 14 November 2012) [4].
83Solicitors Regulatory Authority v Paul O'Halloran (United Kingdom Solicitors Disciplinary Tribunal, 14 November 2012) [33.3].
84Solicitors Regulatory Authority v Paul O'Halloran (United Kingdom Solicitors Disciplinary Tribunal, 14 November 2012) [1].
85Solicitors Regulatory Authority v Paul O'Halloran (United Kingdom Solicitors Disciplinary Tribunal, 14 November 2012) [33.18] - [33.23].
86 Affidavit of Mr O'Halloran (sworn 14 November 2013) [5]; annexure POHRS 3.
87Legal Profession Complaints Committee v in de Braekt [2013] WASC 124.
88Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438, 445 [33] (Thomas JA, McMurdo P & White J agreeing).
89Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 [17(1)], [17(2)] (Young CJ in Eq; Meagher & Tobias JJA agreeing).
90A Solicitor v Council of the NSW Law Society [2004] HCA 1; (2004) 216 CLR 253, 268 [21] (the Court).
91The NSW Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177; Law Society of NSW v Foreman (1994) 34 NSWLR 408;Veghelyi v The Law Society of New South Wales (Unreported, NSWCA, 6 October 1995).
92Re Law Society of the Australian Capital Territory v Roche [2002] ACTSC 104; (2002) 171 FLR 138; Franconi v Legal Practitioners Complaints Committee [2001] WASCA 431; New South Wales Bar Association v Meakes [2006] NSWCA 340; Legal Practitioners Complaints Committee v Camp [2010] WASC 188.
93 Affidavit of Mr O'Halloran (sworn 11 September 2013) [6].
94 Affidavit of Mr O'Halloran (sworn 11 September 2013) [10].
95 ts 24 - 25.
96Royal Bank of Scotland v Etridge (AP) [2001] UKHL 44; [2002] 2 AC 773, 797 [18]. Contra Wigmore on Evidence (3d edn) 292 § 2492.
97 Affidavit of Mr O'Halloran (sworn 11 September 2013) [3].
98Legal Profession Complaints Committee, Book of documents before State Administrative Tribunal, 28 February 2013, 8.
99Legal Practitioner Complaints Committee v Pepe [2009] WASC 39 [10].
100Legal Profession Complaints Committee and O’Halloran [2013] WASAT 105 [30].
101Legal Profession Complaints Committee and O’Halloran [2013] WASAT 105 [30].
102 VR 35, 36, 37, 38 and 39 of 2009.
103Legal Profession Complaints Committee and O’Halloran [2013] WASAT 105 [10] (71).
104 ts 16 (State Administrative Tribunal,10 May 2013).
105 ts 16 (State Administrative Tribunal,10 May 2013).
106Legal Profession Complaints Committee and O’Halloran [2013] WASAT 105 [38].
107Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [38].
108 Affidavit of Mr O’Halloran (sworn 30 October 2013) [22].
109 Affidavit of Mr O’Halloran (sworn 11 September 2013) [11].
110 ts 63 (State Administrative Tribunal, 10 May 2013).
111 Affidavit of Mr O'Halloran (sworn 8 October 2013) [69] - [71].
112Legal Profession Act 2008 (WA) s 449 read with s 444(2)(a), s 441(c).
113 Practitioner's submissions 12 September 2013 [42].
114 Cf Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [78].
115Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 [43].
27