LEGAL SERVICES AND COMPLAINTS COMMITTEE and KELLY - [2024] WASAT 125 (S)

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION:   LEGAL SERVICES AND COMPLAINTS COMMITTEE and KELLY [2024] WASAT 125 (S)
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
DR M EVANS-BONNER, SENIOR MEMBER
MR R POVEY, MEMBER

HEARD:   1 MAY 2025
DELIVERED          :   20 AUGUST 2025
FILE NO/S:   VR 39 of 2023
BETWEEN:   LEGAL SERVICES AND COMPLAINTS COMMITTEE
Applicant
AND
PHILLIP JOHN MARK KELLY
Respondent

Catchwords:

Vocational regulation - Legal practitioners - Penalty and costs - Nine findings of professional misconduct and one finding of unsatisfactory professional conduct - Findings of misconduct including dishonesty, delay, neglect and incompetence - Practitioner did not engage with the Tribunal process - Order for the making of a recommendation to strike off - Compensation order sought - Finding that Tribunal lacks power to make compensation order if order made recommending strike off - Costs order

Legislation:

Legal Profession (State Administrative Tribunal) Determination 2024 (WA)
Legal Profession Act 2008 (WA), s 3, s 403(1)(a), s 403(1)(b), s 428(1), s 438(2), s 438(2)(a), s 438(2)(b), s 439, s 440, s 441, s 444, s 448
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2)

Result:

The Tribunal is to make and transmit a report on its findings of professional misconduct to the Supreme Court (Full Bench)
The respondent is to pay the costs of the applicant in the sum of $46,672.20 within 30 days or as otherwise agreed between the parties

Category: B

Representation:

Counsel:

Applicant	:	Ms C Moss
Respondent	:	No Appearance

Solicitors:

Applicant	:	Legal Services and Complaints Committee
Respondent	:	N/A

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

Edward v Legal Practitioners Complaints Committee [2006] WASCA 194
GXB v Tyson [No 2] [2025] WASCA 115
Johns v Law Society of NSW [1982] 2 NSWLR 1
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Khosa v Legal Services and Complaints Committee [2024] WASCA 148
Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56
Legal Practitioners Complaints Committee and Richardson [2006] WASAT 251
Legal Practitioners Complaints Committee and Walton [2006] WASAT 155
Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S)
Legal Profession Complaints Committee and Chang [2019] WASAT 67 (S)
Legal Profession Complaints Committee and Lawson [2021] WASAT 152
Legal Profession Complaints Committee and Lawson [2021] WASAT 152 (S)
Legal Profession Complaints Committee and Lee-Steere [2010] WASAT 189
Legal Profession Complaints Committee and Lourey [No 2] [2023] WASAT 77 (S)
Legal Profession Complaints Committee and Metaxas [2021] WASAT 82 (S)
Legal Profession Complaints Committee and O’Halloran [2013] WASAT 105
Legal Profession Complaints Committee and O'Halloran [2013] WASC 430
Legal Profession Complaints Committee and Segler [2013] WASAT 117
Legal Profession Complaints Committee and Tang [2021] WASAT 117
Legal Profession Complaints Committee v Chang [2022] WASC 145
Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 (S)
Legal Services and Complaints Committee and Kelly [2024] WASAT 125
Legal Services and Complaints Committee and Lourey [No 2] [2023] WASAT 77
Legal Services and Complaints Committee and McCardle [No 2] [2023] WASAT 131 (S)
Legal Services and Complaints Committee and Young [2023] WASAT 108
Medical Board of Western Australia v Roberman [2005] WASAT 81 (S); (2005) 39 SR (WA) 47
Nadkarni v Medical Board of Australia [2022] WASCA 109
Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Re Veron; Ex parte Law Society of New South Wales [1966] 1 NSWR 511
Robertson v Legal Services and Complaints Committee [2025] WASCA 92
Singh v Medical Board of Australia [2019] WASCA 51
Stirling v Legal Services Commissioner [2013] VSCA 374
Veterinary Practice Board of Western Australia and Burstein [2024] WASAT 140 (S)
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
Young v Legal Profession Complaints Committee [2022] WASCA 52

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 22 November 2024, we published our primary reasons in this matter (Primary Reasons).[1]
[1] Legal Services and Complaints Committee and Kelly [2024] WASAT 125.
In the Primary Reasons, we found the respondent (Mr Kelly) guilty of nine counts of professional misconduct and one count of unsatisfactory professional conduct under the Legal Profession Act 2008 (WA) (LP Act).
The conduct the subject of nine of the findings arose in the course of Mr Kelly's involvement with a single client (the client), who engaged Mr Kelly to assist him appeal two related motor vehicle convictions.
The tenth finding concerned Mr Kelly's failure to engage with the applicant (LSCC) during its investigation.
The LSCC seeks an order that the Tribunal recommend to the full bench of the Supreme Court that Mr Kelly be struck off the roll of practitioners. It also seeks an order for costs of $46,672.26.[2]
[2] Applicant's Submissions on Penalty and Costs dated 23 December 2024; Applicant's Further Submissions on Penalty and Costs dated 23 April 2025.
Consistent with his previous approach, Mr Kelly did not participate in the penalty and costs aspect of the proceeding. We therefore lack the benefit of his position, although we have proceeded on the basis that he resists the orders sought by the LSCC.
For the following reasons, we will make the orders sought by the LSCC. The LSCC originally sought a compensation order in favour of the client in the sum of $3,521.03. As we explain later in these reasons, the LSCC later withdrew its application for that order.

Procedural History

On 9 December 2024 we made orders to give effect to our Primary Reasons.
Previously, on 2 December 2024, orders were made for the programming of the matter for a hearing as to penalty and costs as follows:
(a)The LSCC was to file and serve written submissions and any supporting evidence by 23 December 2024;
(b)Mr Kelly was to do the same by 7 February 2025;
(c)The LSCC was to file and serve any responsive submissions and/or evidence by 21 February 2025; and
(d)By 9 December 2024, the parties were to file their unavailable dates for a hearing in March or April 2025.
On 10 December 2024, the LSCC filed its unavailable dates for a hearing in March or April 2025, but Mr Kelly did not file anything. Accordingly, orders were made on 11 December 2024 listing the matter for a hearing on penalty and costs on 14 March 2025.
The LSCC filed its Submissions on Penalty and Costs,[3] together with affidavit evidence, on 23 December 2024.[4] Mr Kelly did not file any such documents.
[3] Applicant's Submissions on Penalty and Costs dated 23 December 2024.
[4] Affidavit of Natalie Mulvaney sworn on 20 December 2024 and attachments NM1 - NM2 dated 20 December 2024. Ms Mulvaney is a legal practitioner employed by the Legal Practice Board of Western Australia as a member of the Investigations and Legal Team; Affidavit of [the client] and attachment [client initial]1 dated 23 December 2024.
On 12 March 2025 Mr Pope, principal solicitor at the Legal Practice Board of Western Australia and solicitor with the conduct of this matter for the LSCC, filed an affidavit clarifying the quantum of costs sought by the LSCC.[5]
[5] Affidavit of Nicholas David Pope dated 12 March 2025 with attachments NDP1 to NDP4.
At 2.44 pm on 13 March 2025, being the day before the hearing on penalty and costs, Mr Kelly sent an email to Mr Pope and the Associate to Judge Jackson which stated:
Dear Mr Pope and Associate,
Attached herewith please find draft affidavit to be sworn by me this afternoon in support of application for adjournment. I undertake [to] file and serve same once I have attended to its swearing.
The email attached a draft/unsworn affidavit which stated that Mr Kelly had only become aware of the hearing on penalty and costs when he had received an email from Mr Pope on the evening of 12 March 2025, advising him that the hearing was listed for 10.00 am on 14 March 2025. In the draft/unsworn affidavit, Mr Kelly requested an adjournment for a minimum of eight weeks, and stated that:
(a)He had had 'issues' with his computer between approximately 2022 and 4 March 2025, when he commenced using a new computer and discovered email correspondence from the Tribunal;
(b)He had 'taken informal advice' from, amongst others, senior counsel and had always intended to engage legal representation, but had not done so until a hearing date was known because he would need to ask them to act pro bono;
(c)It was difficult for him to prepare for the hearing because he was suffering from chronic pain that was 'managed by the use of powerful prescription drugs'. He stated that, due to his chronic pain, he also suffered from 'severe chronic depression, with attendant chronic suicidal ideation', was under the care of a psychiatrist and was monitored by his general practitioner;
(d)He needed six to eight weeks to put medical reports to the Tribunal concerning 'pain levels and psychological overlay' resulting from two motor vehicle accidents he suffered in 2020;
(e)He had 'not yet gathered or collated any character references from various friends and colleagues' and that, 'without these materials, I am yet to engage counsel, nor take advice as to my position'; and
(f)He was the primary carer for his 97-year-old mother which was time-consuming and involved transporting her to frequent medical and hospital appointments.
Despite undertaking to do so, Mr Kelly has not filed a sworn version of the affidavit.
Later that day, at 4.17 pm, the Associate to Judge Jackson sent the following email to Mr Kelly:
Dear Mr Kelly
His Honour, having considered your email and attached draft affidavit, advises the following:
1.The Tribunal's records indicate that you opened the email attaching the orders of 11 December 2024, which listed the matter for a hearing on penalty and costs for 14 March 2025, less than two hours after it was sent on that date (i.e. 11 December 2024).
2.Given that, if you wish to pursue your application to adjourn, you will need to do so at the commencement of tomorrow's hearing.
3.If your application for adjournment is unsuccessful, the hearing on penalty and costs will proceed immediately thereafter.
4.His Honour would prefer that you attend the hearing in person, but if that is not possible you may attend by video-link via Microsoft Teams, the details of which are as follows: …
On 14 March 2025, Mr Pope filed an affidavit on behalf of the LSCC opposing Mr Kelly's foreshadowed application for an adjournment of the hearing.[6]
[6] Affidavit of Nicholas David Pope dated 14 March 2025 with attachments NDP1 to NDP6.
Mr Kelly did not attend the hearing on 14 March 2025. After the commencement of the hearing, at 11.15 am, the Tribunal received an email from a social worker at a major hospital attaching a medical certificate for Mr Kelly.
The medical certificate contains minimal information. It describes Mr Kelly as 'unfit' from 13 March 2025 to 20 March 2025 with the remark, 'Please excuse Mr Kelly due to ongoing care in hospital'.[7] The medical certificate remains unfiled.
[7] As to the adequacy of medical certificates in support of applications for adjournments see GXB v Tyson [No 2] [2025] WASCA 115. See, also, Khosa v Legal Services and Complaints Committee [2024] WASCA 148 (Khosa) at [15] - [37].
We made an order adjourning the proceeding until 2.00 pm on 14 March 2025, to endeavour to clarify Mr Kelly's situation. We were unable to do so, save that it appeared that Mr Kelly was, as was otherwise apparent from the email, present at the mental health unit of a major hospital. We were unable to ascertain his status there.
After resuming at 2.00 pm on 14 March 2025, and with the agreement of the LSCC, we made an order adjourning the hearing as to penalty and costs to 1 May 2025 at 10.00 am, together with orders to the following effect:
(a)By 28 March 2025, Mr Kelly may file an application to adjourn the 1 May 2025 hearing, together with supporting evidence and submissions;
(b)In the alternative, Mr Kelly may make an application by 24 March 2025 to extend the date by which to make any adjournment application;
(c)By 5.00 pm on 21 March 2025 Mr Kelly may ask the Tribunal to refer him to the Western Australian Bar Association for assistance through its pro bono scheme; and
(d)The costs of the day were reserved.
The Tribunal's records confirm that the orders made by the Tribunal on 14 March 2025 were emailed to Mr Kelly on 14 March 2025 and were opened at 5.40 pm that day. However, Mr Kelly:
(a)did not file anything in response to those orders;
(b)did not apply to adjourn, nor file any submissions or evidence in support of such an application;
(c)did not contact the Tribunal to request pro bono assistance.
Furthermore, Mr Kelly did not attend the hearing on 1 May 2025. At the start of the hearing, the Tribunal attempted to telephone Mr Kelly from the hearing room, but the call went through to voicemail.

The Statutory Framework

As we explained in the Primary Reasons, this proceeding was commenced by the LSCC's referral of the matter to the Tribunal under s 428(1) of the LP Act which, while repealed, continues to apply to this matter.[8]
[8] Primary Reasons at [28] to [29].
Section 438(2) of the LP Act provides that if, after completing a hearing, the Tribunal is satisfied that a legal practitioner is guilty of unsatisfactory professional conduct or professional misconduct, it may make and transmit a report on the finding to the full bench of the Supreme Court[9], or make any one or more of the orders in s 439, s 440[10] and s 441 of the LP Act.[11]
[9] LP Act, s 438(2)(a).
[10] Section 440 of the LP Act concerns interstate practitioners and is not relevant to the present circumstances.
[11] LP Act, s 438(2)(b).
The orders that the Tribunal may make under s 439 of the LP Act are as follows: that the practitioner's local practising certificate be suspended for a specified period or cancelled; that a local practising certificate is not to be granted to the practitioner before the end of a specified period; that specified conditions are to be imposed on the practitioner's practising certificate for a specified time;[12] and that the practitioner be publicly reprimanded.
[12] The section provides also for a condition which specifies the time, if any, after which the practitioner may apply to the Tribunal to have the conditions amended or removed.
Section 441 of the LP Act empowers the Tribunal to make various orders including: an order that the practitioner pay a fine not exceeding $25,000; an order that the practitioner is to undertake and complete a specified course of legal education; an order that the practitioner pay compensation; an order that the practitioner undertake a specified period of practice under specified supervision; and an order that the practitioner not apply for a local practising certificate before the end of a specified period.

Relevant Legal Principles

The Court of Appeal in Nadkarni,[13] a decision concerning a medical practitioner, said that in determining the suitable penalty for professional misconduct, it is the Tribunal's task:
… to evaluate and weigh a broad range of factors. Those factors included the purpose of disciplinary proceedings against medical practitioners (notably, the protection of the public and the maintenance of high professional standards); the findings of fact made by the Tribunal in its reasons; the numerous sanction or penalty options available to the Tribunal under s 196(2) of the National Law; the sanctions or penalties that have been imposed upon medical practitioners in previous cases with at least some features reasonably comparable to the present case; personal and general deterrence; Dr Nadkarni's personal circumstances and antecedents; and the mitigating factors. The determination of the appropriate sanction or penalty option or options was not a mechanical process[.]
[13] Nadkarni v Medical Board of Australia [2022] WASCA 109 at [69].
There is nothing, in our view, that requires a different approach in making findings about a legal practitioner.
In Khosa, Murphy and Beech JJA made various observations concerning the imposition of a penalty in disciplinary proceedings, with particular focus on the factors relevant to a decision to suspend or recommend striking off.[14] Those observations have been summarised and applied in subsequent Tribunal judgments, including, in relation to legal practitioners, in Lawson,[15] Metaxas[16] and Lourey [No 2][17] and, in relation to a veterinarian, in Burstein.[18] In Lawson,[19] the Tribunal summarised those principles as follows:
[14] Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (Khosa), per Murphy and Beech JJA at [187] - [195].
[15] Legal Profession Complaints Committee and Lawson [2021] WASAT 152 (S) (Lawson) at [29].
[16] Legal Profession Complaints Committee and Metaxas [2021] WASAT 82 (S) at [14].
[17] Legal Profession Complaints Committee and Lourey [No 2] [2023] WASAT 77 (S) (Lourey [No 2]) at [50].
[18] Veterinary Practice Board of Western Australia and Burstein [2024] WASAT 140 (S) at [35].
[19] Lawson at [29].
(a)The Tribunal's jurisdiction in this regard is not to be exercised for the purpose of punishing the relevant practitioner but, rather, for the protection of the public and the maintenance of the reputation and standards of the legal profession;
(b)The protection of the public includes both general deterrence of other practitioners who might otherwise be tempted to engage in the relevant conduct as well as deterrence personal to the relevant practitioner;
(c)Where the Tribunal concludes that a practitioner is presently unfit to practise, a choice is presented between the alternatives of suspension and striking off. An order for suspension in those circumstances may only be made on the basis that, at the termination of the period of suspension, the practitioner will no longer be unfit to practise because, at that time, the practitioner's name will still be on the roll of practitioners and they may resume practise;
(d)Suspension is a serious form of discipline which is usually imposed to discipline the legal practitioner, who has committed an act of unprofessional conduct but who, in the opinion of the Tribunal, at the end of the period of suspension, will be a fit and proper person to practise law;
(e)In the context of suspension, present unfitness to practise may be understood to include a serious breach of professional obligations reflecting, to a significant degree, upon the practitioner's fitness to practise;
(f)However, where the Tribunal finds that the practitioner's present unfitness to practise reveals or discloses that the practitioner, in fact, lacks the character and trustworthiness necessary to discharge his or her obligations of legal practice or the practitioner is permanently or indefinitely unfit to practise, striking off will ordinarily be the appropriate response rather than suspension;
(g)In seeking to understand the difference, it will be relevant to consider whether the practitioner appreciates or otherwise the impropriety of his or her conduct because a lack of appreciation of impropriety and a lack of insight increases the risk of recurrence of the improper conduct;
(h)Fitness to practise for the purpose of penalty is to be determined at the time of the relevant hearing and not at the time of the misconduct.
The observations of Murphy and Beech JJA in Khosa were recently referred to by the Court of Appeal in Robertson,[20] where it was said:
292Misleading the court with a knowingly false statement in an affidavit is particularly serious. Knowingly making a statement under oath that is false in a material particular is an offence against s 169 of the Criminal Code (WA) for which a term of imprisonment may be the appropriate sentence. As Mason P observed in Coe v New South Wales Bar Association, in a passage cited by the Tribunal in the penalty decision, it would be a truly exceptional case where a practitioner who knowingly swears a false affidavit that is filed in court could be regarded as fit to practise.
293However, as Murphy and Beech JJA recognised in Khosa v Legal Profession Complaints Committee, the court's, and the Tribunal's, jurisdiction with respect to the regulation of the profession is not to be exercised for the purpose of punishing the practitioner concerned, but for the protection of the public and the maintenance of the reputation and standards of the legal profession. Further, a finding of unfitness to practise does not necessarily mean that a practitioner is permanently unfit to practise. Where the conclusion is reached that a practitioner is presently unfit to practise, a choice may be made between suspension and striking off. Further, as is illustrated by the decision in Vogt (where a period of suspension was imposed on a practitioner who knowingly made a false statement in an affidavit), striking off is not an inevitable consequence of knowingly making a false statement in an affidavit.
[20] Robertson v Legal Services and Complaints Committee [2025] WASCA 92 at [293]. Internal citations omitted.

Finally, we note that, while as a matter of general principle it is appropriate for a penalty to attach to each finding of professional misconduct,[21] that rule is not universal. As the Tribunal observed in McCardle [No 2]: [22]
where the penalty called for is a strike off, it is appropriate to approach the question of penalty on a global basis so as to impose a penalty for the respondent's professional conduct as a whole.
[21] Stirling v Legal Services Commissioner [2013] VSCA 374 at [72] - [75].
[22] Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) at [18] - [19] cited in Legal Services and Complaints Committee and McCardle [No 2] [2023] WASAT 131 (S) at [39].

The Factual Findings and their Seriousness

Of particular significance to the relevant sanction to be imposed is whether the findings of misconduct reveal that a person is unfit to practise.[23]
[23] Singh v Medical Board of Australia [2019] WASCA 51, [34], citing Khosa at [191] - [192].
As previously noted, in our Primary Reasons we made nine findings of professional misconduct against Mr Kelly and one finding of unsatisfactory professional conduct.
Those findings cover a very broad suite of misconduct. As we said in the Primary Reasons, it spans 'undue delay, incompetence, failures of communication including discourtesy, and dishonesty'. The findings of professional misconduct included:
(a)very considerable, and unjustified, delay in filing appeal notices for the client in two appeals against convictions (Ground 1) and in progressing those appeals (Ground 2);
(b)preparing, swearing or causing to be sworn, and causing to be filed, affidavits in each of the two appeals, which Mr Kelly knew contained false statements about the cause of the delay in filing the appeal notices (Grounds 3 and 4);
(c)failing to attend the hearing of the appeals when first listed and failing to communicate with the Court about that failure and for the rescheduling of the hearing, which we described as constituting 'gross neglect' (Ground 5);
(d)preparing and sending an email to the client which:
(i)deliberately failed to inform the client that the appeals had been listed and that Mr Kelly had failed to appear at the listed hearing; and
(ii)knowingly and falsely represented that a hearing of the appeals had taken place, that Mr Kelly had attended and that argument had occurred, when no such hearing had occurred,
(Ground 6);
(e)at the hearing of the appeals, with reckless indifference as to their truth, making two false representations to the Court (Ground 7);
(f)failing to communicate candidly and in a timely manner with the client and failing to take all reasonable and practicable steps to keep the client informed about significant developments and the progress of the client's matter more generally (Ground 9); and
(g)failing to adequately respond to the applicant's request for submissions and, subsequently, to its summons, during its investigation of him (Ground 10).
In addition, we found that he engaged in unsatisfactory professional conduct in his conduct of the appeals due to the inadequacy of the grounds of appeal and the evidence presented (Ground 8).
In relation to each of the nine findings of professional misconduct, we found that the conduct fell within both limbs of the Kyle test, being conduct:[24]
(a)First Limb: 'that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence'.
(b)Second Limb: 'that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence'.
[24] Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 at [72].
Significantly, in relation to four of our findings, we also found the conduct to fall within s 403(1)(a) of the LP Act and, in relation to five of the findings (Grounds 3, 4, 6, 7 and 9), we found the conduct to fall within s 403(1)(b) of the LP Act, being conduct that 'would … justify a finding that the practitioner is not a fit and proper person to engage in legal practice'.
That is, as at the time of the conduct, we made five findings that Mr Kelly was not a fit and proper person to practise law. Such findings are, plainly, of a most serious nature.
It is useful to briefly address each of the findings by reference to their nature.

Dishonesty

Our findings as to four of the grounds (Grounds 3, 4, 6 and 7) concern dishonesty.
In Tang[25] the Tribunal stated:
Honesty and integrity are essential characteristics for the privilege and responsibilities of legal practice. Fitness to practise law requires that a practitioner must command the personal confidence of his or her clients, fellow practitioners and judicial officers. Put simply, if legal practitioners cannot be trusted to act and speak with honesty and integrity, the effective and efficient provision of legal services and administration of justice would be fundamentally undermined.
[25] Legal Profession Complaints Committee and Tang [2021] WASAT 117 at [56], cited in Legal Profession Complaints Committee and Lawson [2021] WASAT 152 (Lawson) at [16]. Internal citations omitted.
Grounds 3 and 4 concern the making, swearing (or causing to be sworn) and filing of affidavits in the court which Mr Kelly knew to contain false statements. As we noted above, in Robertson the Court held:
Misleading the court with a knowingly false statement in an affidavit is particularly serious. … it would be a truly exceptional case where a practitioner who knowingly swears a false affidavit that is filed in court could be regarded as fit to practise.
Further, as we found in the Primary Reasons, Mr Kelly's recklessly false representations to the Court (Ground 7) were made to avoid the Court's opprobrium for the role he played in the delay.[26]
[26] Primary Reasons at [321].
The finding that Mr Kelly misled the client is also very serious. As the above quote from the Tribunal's decision in Tang makes clear, honesty and integrity in a practitioner's dealings with their client is essential to the effective and efficient provision of legal services and the administration of justice.
Further, we also found that, in deliberately misleading the client, he acted to conceal his own failings and to protect the money that had been paid by the client into trust.[27]

Delay and Neglect

[27] Primary Reasons at [296].

Also serious are the other findings of professional misconduct. Grounds 1 and 2 concern considerable and unjustified delay by Mr Kelly while Grounds 5 and 9 concern Mr Kelly's gross neglect in failing to engage with the Court following his failure to attend the hearing of the appeals, and in failing to properly communicate with the client.
As we noted in the Primary Reasons (at [263]), in Segler the Tribunal observed:[28]
It would be unrealistic to expect of a legal practitioner that he or she will never make a mistake or miss an appointment or deadline. However, if a practitioner consistently fails to comply with the orders of a court to the effect that the client's interests are significantly prejudiced then the Tribunal regards this as gross neglect which justifies a finding of professional misconduct. In this case, the effect of the Practitioner's neglect was that default judgment was entered and costs awarded against his client.
[28] Legal Profession Complaints Committee and Segler [2013] WASAT 117 (Segler) at [132].
These comments are, in our view, apposite to Mr Kelly's conduct with respect to the two appeals. Mr Kelly's conduct prejudiced the client's interests. Mr Kelly's instructions from the client, reiterated more than once, were that he would lose his job at the end of the year if his driver's licence remained suspended at that time.[29] Despite this, Mr Kelly failed to progress the two appeals, failed to comply with court orders and failed to respond to correspondence from the Court, creating a real and imminent risk of dismissal.[30]
[29] Primary Reasons at [43].
[30] Primary Reasons at [189].
That risk was, in fact, realised when, in April 2017, Tottle J refused to extend the time within which to bring the appeals and dismissed the applications for leave to appeal. The client was also ordered to pay costs in the sum of $1,500.[31] It appears that the client insisted that Mr Kelly's law firm pay the $1,500, and although they refunded him $2,478.97, being the balance of the client's monies held in trust, the client was nevertheless billed $3,521.03.[32]
[31] Applicant's Book of Documents dated 16 November 2023 (Exhibit 1), pages 267 - 268 and 291.
[32] Witness Statement of [the client] dated 20 February 2024 (Exhibit 5), paras 73 - 74.
Overall, Mr Kelly's incompetence prejudiced the client's interests and cost him money.

Failure to Engage with the LSCC

Ground 10 concerns Mr Kelly's failure to properly engage with the applicant during its investigation of his conduct.
This Tribunal has long expressed the view that a failure by a professional to cooperate with their regulator is very serious indeed because it undermines that regulator's ability to perform its statutory function of regulating the profession, the purpose of which is to protect the public.[33]

Incompetence

[33] Legal Profession Complaints Committee and Lee-Steere [2010] WASAT 189 at [22] - [24]; Legal Services and Complaints Committee and Lourey [No 2] [2023] WASAT 77 at [237] - [241]. See, also, Legal Practitioners Complaints Committee and Richardson [2006] WASAT 251 at [54].

Our finding as to Ground 8 was that Mr Kelly had engaged in unsatisfactory professional conduct.
Plainly, this finding is less serious than the others. However, even here, the relevant findings in the Primary Reasons give considerable cause for concern.
In particular, we observed that Mr Kelly appears to have been unaware of basic legal requirements and that he suffered from a lack of basic legal knowledge.[34]
[34] Primary Reasons at [359] - [363].
A member of the public is entitled to expect that a lawyer holding themselves out as practising in this area of law would be aware that they should state the grounds of the appeal and adduce evidence in support. That is, after all, the point of engaging a lawyer as opposed to continuing as a self-represented litigant.

Implications of Findings as to Seriousness

Given those findings, and the relevant principles set out above, and the relevant suite of possible sanctions, we are satisfied that the question before us is whether to suspend Mr Kelly's practising certificate or to recommend that he be stuck off. We turn now to consider the relevant considerations.

The Need for Protection of the Public

In Khosa, Murphy and Beech JJA noted that the Tribunal's jurisdiction in disciplinary proceedings is to be exercised not for punishment but 'for the protection of the public and the maintenance of the reputation and standards of the legal profession.'[35]
[35] Khosa at [188].
Their Honours went on to say that 'the protection of the public includes both general deterrence of other practitioners who might otherwise be tempted to engage in the relevant conduct as well as deterrence personal to the relevant practitioner.'[36]
[36] Khosa at [189].
In Singh,[37] the Court of Appeal said that:
… the protection of the public has various dimensions. They may include the immediate need to protect the public from the practitioner's conduct, the need to bring home to the practitioner the seriousness of their conduct and to the need to deter the practitioner from future breaches. … the protection of the public may [also] require an order to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. Such an order may, in this sense, be regarded as akin to 'general deterrence'.
[37] Singh v Medical Board of Australia [2019] WASCA 51 at [32].
The breadth of misconduct the subject of our findings and its seriousness (particularly as to dishonesty), reinforce the need for the public to be protected from Mr Kelly's conduct, the need to bring home to him the seriousness of his conduct, and the need to deter him from future breaches.
There is also a need to bring home to other practitioners, who might otherwise do likewise that the conduct the subject of our findings is unacceptable and that very serious sanctions will ordinarily follow.
That is particularly the case as to the findings of dishonesty. Dishonest practitioners pose a significant danger to the public's confidence in the legal system as a whole.
The other findings - of delay, failure to progress, failure to communicate and otherwise incompetence - also negatively impact on both the interests of the particular client and the public more generally, because they negatively impact on the confidence of the public in legal practitioners more generally as well as the system within which they practise.
There is therefore a strong public interest in protecting the public from lawyers who engage in the type of conduct committed by Mr Kelly and, accordingly, a need for the penalty to include an element of general, as well as specific, deterrence.

Mr Kelly's Disciplinary History

While Mr Kelly has been the subject of two prior disciplinary findings, we do not give them much weight. In particular, 25 years have passed since the most recent of them, which makes it impossible to draw any real conclusions from them. It cannot, that is, be said that Mr Kelly has failed to learn from his prior disciplinary history or that it demonstrates that he is inherently unfit to practise.
On 9 March 1995, the Legal Practitioners Disciplinary Tribunal (LPDT) found that Mr Kelly was guilty of illegal conduct in that between 1 July 1994 and 30 September 1994 or thereabouts he engaged in legal practice without holding a practising certificate. He was fined $500.
The LPDT also found Mr Kelly to be guilty of illegal conduct in that between April 1994 and September 1994, or thereabouts, he failed to maintain books of account of trust monies received, deposited and disbursed, or otherwise dealt with them in such a manner as to disclose the true position and to enable the books to be readily and conveniently audited. He received a further $500 fine for this.[38]
[38] Affidavit of Natalie Mulvaney sworn on 20 December 2024 and attachments NM1-NM2 (Mulvaney Affidavit), attachment NM1.
On 9 February 2000, Mr Kelly admitted at a hearing before the LPDT that, between November 1998 and July 1999, he engaged in the practice of law without holding a practising certificate. Mr Kelly had commenced employment at a law firm without advising the firm that he did not hold a practising certificate.
Further, he admitted that in January 1999 he misled the Legal Practice Board when he orally advised its Secretary that he was not engaged in the practice of law during that period, and that he further misled the Board in a letter in which he stated he was not practising law during that period. Mr Kelly was suspended from practice for six months and ordered to pay costs of $750.[39]
[39] Mulvaney Affidavit, attachment NM-2.
Mr Kelly was admitted to legal practice on 5 March 1991[40] and was, therefore, at the time of the first findings of illegal conduct in 1994 and 1999, a relatively junior practitioner.
[40] Statement of Facts and Contentions, para 2 of page 12 of Further amended annexure A filed by the LSCC on 7 August 2024.
Moreover, as has been noted, it has been 25 years since the most recent disciplinary finding was made against him. While we are concerned that these prior findings included dishonesty, because of the passage of that lengthy period of time we give only limited weight to them.

Lack of Insight/Remorse

As we have previously noted, Mr Kelly failed to materially participate in these proceedings - both as to liability and, later, as to penalty and costs. He put on no relevant material by way of evidence or submissions and failed to attend the initial hearing as to liability and, later, the penalty and costs hearing.
Unfortunately, it is not uncommon for practitioners to fail to engage with the process. We repeat, in this regard, the Tribunal's reference in Lourey[41] to NSW authorities which are to the effect that practitioners have an obligation to cooperate by attending an inquiry into their conduct, 'whether by the court or the committee'.[42]
[41] Legal Services and Complaints Committee and Lourey [No 2] [2023] WASAT 77 at [238] - [239].
[42] Johns v Law Society of NSW [1982] 2 NSWLR 1 at 6. See, also, Re Veron; Ex parte Law Society of New South Wales [1966] 1 NSWR 511 at 515.
It is unhelpful to speculate as to why Mr Kelly failed to engage.
The draft/unsworn affidavit to which we have previously referred is to the effect that Mr Kelly has suffered from motor vehicle accidents that have left him in considerable pain which, in turn, has caused or contributed to both the use of strong pain relief medication as well as chronic depression. It is to the effect that those matters, together with his role as his mother's carer, have made it difficult for him to do what is necessary to put on evidence and submissions and otherwise prepare for the penalty and costs hearing.
Indeed, while that draft/unsworn affidavit goes only to his difficulties in addressing penalty and costs, it states that Mr Kelly was involved in two traffic accidents in 2020. That invites speculation that those accidents and their aftermath may have been a cause or contributor to his failure to prepare for the hearing as to liability.
However, we are unable to place any weight at all on the unsworn affidavit for at least three reasons.
First, self-evidently, the affidavit remains unsworn and, indeed, unfiled. Moreover, it has that status despite Mr Kelly having been given ample opportunity to swear and file the affidavit.
Second, as should be apparent from the procedural history detailed above, the draft affidavit asserts that Mr Kelly had been unaware of the listing of the penalty and costs hearing until just before the listed date.
That (unsworn) assertion is inconsistent with the Tribunal's own records, which invites concern that the draft affidavit may not be entirely accurate in other respects.
Mr Kelly was given an opportunity to attend the Tribunal and explain the inconsistency. That he did not do so, and gave no explanation for his failure, invites an inference that that concern may be well founded.
Third, despite orders designed to allow Mr Kelly to take steps to participate in the penalty and costs hearing, he failed to take up any of those opportunities.
Mr Kelly's failure to swear the affidavit (and put on supporting medical evidence) should be seen in light of our findings in the Primary Reasons.
Specifically, the Primary Reasons, we made reference to two responses Mr Kelly gave to the LSCC dated 30 June 2021[43] and 7 September 2021,[44] which made various claims by way of explanations for his various failures.
[43] Exhibit 1, pages 342 - 344.
[44] Exhibit 1, pages 348 - 352.
In the Primary Reasons, we noted that he had failed to put forward any supporting evidence in support of various of his claims, including as to his workload and his health issues arising from his alleged motor vehicle accidents, and that we did not accept his explanations.[45]
[45] See, for example, Primary Reasons at [403].
Having reached those findings in the Primary Reasons, it is somewhat remarkable (if his claims have any substance to them) that Mr Kelly failed to address those inadequacies in the context of the penalty and costs hearing.
The result is that there is nothing before us that indicates any insight or remorse.
On one view, the attempt to seek an adjournment with a draft/unsworn affidavit which was not, thereafter, sworn and filed, might be seen as consistent with a continued course of avoidant behaviour in which he failed, over a substantial period of time, to participate in the Tribunal's processes.

However, in our view it is unnecessary for us to go so far and make that finding. Rather, we have proceeded on the more straightforward basis that there is nothing before us that might support a finding that Mr Kelly has any insight and/or contrition.
That is, we are not satisfied that Mr Kelly is willing and able to recognise and appreciate that his conduct represents a significant departure from relevant standards or that he regrets his actions and their consequences.
As such, there is nothing before us that allows us to distinguish between Mr Kelly's fitness to practise as at the time of the misconduct and the present time.
As has been referred to previously, our present role is to determine whether Mr Kelly is presently fit to practise. Our previous findings were to the effect that he was not fit to practise as at the time of the conduct in question. The lack of material supporting a view that he has insight and contrition for his conduct means that we are unable to distinguish between his character at that previous time and his present character.
The Full Court put it this way in Chang:[46]
while lack of remorse or insight is not an aggravating factor in relation to penalty, the practitioner's failure to understand the significance of her misconduct is a relevant factor in favour of striking off the practitioner rather than suspending her from legal practice.
[46] Legal Profession Complaints Committee v Chang [2022] WASC 145 at [66].

Mr Kelly's Personal Circumstances

Mr Kelly is 62 years of age. As we have previously noted, Mr Kelly was admitted to legal practice on 5 March 1991.
At the time he first took instructions from the client in 2017, he was a relatively senior legal practitioner with some 26 years' experience. It cannot, therefore, be said that his conduct was attributable to immaturity, inexperience or a lack of appropriate supervision.
There is little else of which we can be satisfied as to his personal circumstances.
His unsworn affidavit provides some other personal details - that he is unemployed; that he is the primary carer for his 97-year-old mother with whom he resides; that he has physical and mental health issues that have prevented him from participating in these proceedings - but for the reasons already outlined, we do not accept the unsworn affidavit as evidence of those matters.
We can and do assume that a sanction in the form of a suspension, let alone transmitting a report to the Supreme Court recommending strike-off, will have a significant impact on Mr Kelly. At the very least it will prevent him from practising law and thereby earn a living in that way.
However, consistent with the relevant principles previously outlined, such concerns must yield to the interests of the protection of the public.

What is the Appropriate Penalty to be Imposed on Mr Kelly?

Mr Kelly is an experienced practitioner whose disciplinary history is from some time ago such that, for all intents and purposes, he ought to be considered to have a relatively clean disciplinary history.
However, we have made very serious findings against Mr Kelly, including findings that he prepared, swore (or caused to be sworn) and filed in court two affidavits which he knew to contain false statements, and of making recklessly false oral statements during the appeals hearing.
More broadly, our findings concern a course of conduct over a two-year period, which quite comprehensively demonstrate that he lacks both character and competence.
In that regard we repeat that five of our nine professional misconduct findings were to the effect that Mr Kelly was not, at the time of the relevant conduct, a fit and proper person to engage in legal practice.
It is also relevant to repeat that, despite being given several opportunities to do so, Mr Kelly has failed to put on material by which he might have sought to demonstrate that he has reflected on his conduct and has relevant insight and/or remorse into that conduct.
In the absence of material going to such insight and remorse, we are compelled to find that he remains, at the present time, unfit to practise.
Similarly, the absence of material going to insight and remorse means that we lack any material upon which we might rely to conclude that he might be a fit and proper person following a period of suspension.
We are therefore satisfied that Mr Kelly remains unfit to practise and that the appropriate sanction is to transmit a report to the full bench of the Supreme Court with a recommendation that his name be removed from the roll.

Should a Compensation Order be Made?

The LSCC originally sought an order that Mr Kelly pay the client compensation in the sum of $3,521.03, being the amount for which he remains out of pocket having been charged for Mr Kelly's representation.
The LSCC later withdrew its application, having concluded that the Tribunal lacks the power to make a compensation order if it is satisfied that it is appropriate to make and transmit a report of its findings to the Full Court of the Supreme Court.
We agree. Section 441 of the LP Act provides that the Tribunal may, under s 438(2)(b) of that Act, make any one or more of a list of possible orders, para (c) of which is 'a compensation order'.
Section 3 of the LP Act defines 'compensation order' as one referred to in s 448 of the LP Act, but neither that section, nor those following, empowers the making of such an order. Neither does s 441. Rather, as noted above, that section provides for the making of certain orders 'under s 438(2)(b)'.
Section 438(2) of the LP Act provides as follows:
If, after it has completed a hearing in relation to a referral under this Part in respect of an Australian legal practitioner, the State Administrative Tribunal is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may –
(a)make and transmit a report on the finding to the Supreme Court (full bench); or
(b)make any one or more of the orders specified in sections 439, 440 and 441.
The use of the disjunctive 'or' in s 438(2) means that, if we consider it appropriate to make and transmit a report on our findings to the full bench, which, for the reasons set out above, we do, then we are unable to make an order under s 441, including a compensation order.[47]
[47] Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105 at [77]; Legal Profession Complaints Committee and Chang [2019] WASAT 67 (S) at [121]. See, also, as to the similarly worded provision of s 185(2) of the Legal Practice Act 2003 (WA), Edward v Legal Practitioners Complaints Committee [2006] WASCA 194 at [16] - [17]; Legal Practitioners Complaints Committee and Walton [2006] WASAT 155 at [104].
We note that s 444 of the LP Act grants a differently framed power to the full bench. That section grants the full bench the power to do 'either or both' order the removal of the practitioner's name from the roll and make any orders that the Tribunal could make under sections 439, 440 and 441.[48] If the LSCC wishes to pursue the compensation order it will need to pursue the matter before the full bench.
[48] See, Legal Profession Complaints Committee and O'Halloran [2013] WASC 430 at [108].

Costs

The LSCC also seeks an order that Mr Kelly pay its costs in the sum of $46,672.26. Following the hearing, the LSCC confirmed that its application for costs subsumes any costs that might have been awarded pursuant to Order 5 of the orders made on 14 March 2025.
The relevant principles were recently described by the Tribunal in Young[49] in terms which we respectfully adopt:
38The starting point in relation to any application for costs in the Tribunal is that, subject to any contrary provision in an enabling Act, the parties to proceedings bear their own costs unless the Tribunal orders otherwise.[50] However, the Tribunal has a discretion to order a party to pay all or any of the costs of another party.[51]
39The legal rationale for an order for costs under s 87(2) is that an order for costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. Accordingly, even in the statutory context where the presumptive position is that no costs will be ordered, generally speaking, the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The onus is on the party seeking an order in its favour.[52]
40The Tribunal's discretion in relation to the award of costs is a wide one. Nevertheless, it is exercised judiciously and not capriciously.
41In vocational regulatory proceedings, where a regulatory body is successful in obtaining relief for misconduct or unprofessional or unsatisfactory conduct by a respondent, it is common (if not ordinarily the case) for the Tribunal to order that the respondent pay all or some of the costs of the regulatory body.[53] (However, it is incorrect to assume, whether in regulatory matters or otherwise, that there is an established practice that an unsuccessful practitioner pays the regulator's costs or a contribution to their costs.[54]) When the Tribunal exercises its discretion to award costs in favour of a regulatory body, that approach reflects the public policy that regulatory bodies perform functions which promote the public interest, usually with limited resources, and the concern that the financial burden of bringing disciplinary action, if the regulatory body has no capacity to recover some or all of its costs, might act as a disincentive to bring such disciplinary action, or to ensure that all allegations against a practitioner are properly and thoroughly presented.[55]
[49] Legal Services and Complaints Committee and Young [2023] WASAT 108 at [38] - [41].
[50] State Administrative Tribunal Act 2004 (WA) (SAT Act), s 87(1).
[51] SAT Act, s 87(2).
[52] Western Australian Planning Commission vQuestdale Holdings Pty Ltd [2016] WASCA 32 (Questdale) at [51] (Murphy JA, Corboy J agreeing); see also Young v Legal Profession Complaints Committee [2022] WASCA 52(Young v LPCC) at [259].
[53] Medical Board of Western Australia v Roberman [2005] WASAT 81 (S); (2005) 39 SR (WA) 47 (Roberman) at [30], referred to with approval in Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 (Paradis) at [35]; Young v LPCC at [261] (Buss P).
[54] cf Western Australian Planning Commission v Questdale Holdings Pty Ltd[2016] WASCA 32 at [62].
[55] Roberman at [30].
Consistent with his failure to engage in these proceedings, Mr Kelly has not sought to persuade us that it is not 'fair and reasonable' to make a costs order against him.
We are satisfied that it is fair and reasonable to make an order that Mr Kelly pay the LSCC's costs. As we have found, the conduct the subject of the allegations was serious and was made out. In our view the public policy referred to above in the quoted passage in Young ought to be applied.
In that regard, we note that there is nothing before us that suggests that the LSCC has acted in a manner that might recommend against a costs order being made in its favour. To use the Tribunal's language in Ginbey,[56] the LSCC has not:
acted unreasonably or inappropriately in its conduct of the proceedings, has [not] conducted itself in a way that has unnecessarily prolonged the hearing … has [not] been capricious … [and has not conducted] the proceedings in some way [so as to] amount to an abuse of process.
[56] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 (S) at [50]. In what follows, we do not understand the Tribunal in Ginbey to have indicated that the types of behaviour described are intended to be exhaustive.
We turn, then, to an assessment of the costs.
In Ginbey, the Tribunal said in this regard:[57]
Having determined that it is appropriate to make an order that one party pay some or all of another party's costs, the Tribunal must make an assessment of the costs to be paid. An assessment of costs should be approached in a broad fashion and should not descend into an inquiry into small items of expenditure. Although the assessment of costs involves a relatively broad and robust approach, the Tribunal must be satisfied that the costs claimed are reasonable and necessary. The Tribunal must also be satisfied that the costs claimed are not excessive. Furthermore, the Tribunal must explain why an award of costs is reasonable, and if so, in what amount.
[57] Ginbey at [51]. Internal citations omitted.
The LSCC has filed an Updated Schedule of Counsel Fees and Disbursements detailing the breakdown of the total fees and disbursements sought.[58]
[58] Applicant's Further Submissions on Penalty and Costs dated 23 April 2025, Annexure 1.
By that document, it is clear that the sum sought by the LSCC consists of three amounts: counsel's fees of $29,413.20; the costs of Mr Pope's time associated with the drafting of the application and the client's witness statement, the preparation of the book of documents and preparing for and attending five directions hearings ($15,290); and various disbursements for $1,969.06.
We are satisfied that the disbursements were all necessary and reasonably incurred.
As to counsel's fees, the vast majority are those of Ms Moss, who has charged at an hourly rate of $396 (inc GST), which is lower than the applicable scale rate of $429 for counsel.[59] Having considered the invoices, and taking a broad and robust approach, we are satisfied that the amount of work undertaken was reasonable and not excessive in all the circumstances.
[59] The Legal Profession (State Administrative Tribunal) Determination 2024 applied from 1 July 2024. With the exception of the sum of $2,160 incurred on 24 May 2024, the work undertaken by Ms Moss occurred after that date.
The LSCC seeks recovery of costs calculated as being equivalent to 35 hours of Mr Pope's time at $429/hr (30 hours) and $484/hr (5 hours).
Those hourly rates are at the relevant scale for a senior practitioner for the relevant time period, which is consistent with the approach taken in Ginbey,[60] where the Tribunal observed that the LSCC is 'entitled to recover the costs of its employed solicitors at scale'.
[60] Ginbey at [335].
The Updated Schedule of Counsel Fees and Disbursements describes the hours spent as estimated as greater than the amount claimed. Adopting, again, a broad and robust approach, we are satisfied that the work undertaken was reasonable in all the circumstances.
For these reasons, we consider it to be fair and reasonable to make an order by which Mr Kelly is to pay the costs of the LSCC in the sum of $46,672.26, to be paid within 30 days unless another period is agreed between the parties.
Finally, and for the avoidance of doubt we will revoke Order 5 of the orders made 14 March 2025, which reserved the question of costs for the day thrown away due to Mr Kelly's non‑appearance. As noted, any such costs are subsumed in the more general order as to costs that will be made.

Orders

For the above reasons, the Tribunal makes the following orders.
The Tribunal orders:
1.Pursuant to s 438(2)(a) and s 438(4)(a) and (b) of the Legal Profession Act 2008 (WA), the Tribunal is to make and transmit a report on the findings of the Tribunal in these proceedings to the Supreme Court (full bench) with both a record of the evidence taken at the hearing and a recommendation that the name of the practitioner be removed from the local roll.
2.Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the practitioner is to pay the applicant's costs, fixed in the sum of $46,672.26, within 30 days or as otherwise agreed between the parties.
3.Order 5 made 14 March 2025, reserving the question of costs for the day, is revoked.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
FA
Associate to the Deputy President Judge Jackson
20 AUGUST 2025