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LEGAL SERVICES AND COMPLAINTS COMMITTEE and KELLY

LEGAL SERVICES AND COMPLAINTS COMMITTEE and KELLY

Case [2024] WASAT 125 (S) 20 August 2025

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading LEGAL SERVICES AND COMPLAINTS COMMITTEE and KELLY

Details

AGLC: LEGAL SERVICES AND COMPLAINTS COMMITTEE and KELLY [2024] WASAT 125 (S)
Case: [2024] WASAT 125 (S)
Decision Date: 20 AUGUST 2025

CaseChat Overview and Summary

The matter before the court involved a Legal Services and Complaints Committee and a legal practitioner, Kelly. The dispute centred around nine findings of professional misconduct and one finding of unsatisfactory professional conduct made against Kelly. These findings were related to dishonesty, delay, neglect, and incompetence in the practitioner's professional conduct. The Tribunal had ordered that a recommendation be made to strike Kelly off the roll of legal practitioners, and had also sought a compensation order for the client. The Legal Services and Complaints Committee challenged the compensation order, arguing that the Tribunal lacked the power to make such an order if a recommendation for strike-off was made.

The court was required to determine whether the Tribunal had the power to make a compensation order when recommending a practitioner be struck off. The court also had to consider the appropriate penalty for Kelly's conduct, and whether any costs should be awarded. The court examined the statutory framework governing the powers of the Tribunal and the scope of its authority to make compensation orders. Additionally, the court assessed the severity of Kelly's misconduct and whether the penalty imposed was commensurate with the gravity of the breaches.

The court found that the Tribunal did not have the power to make a compensation order if it recommended a practitioner be struck off. The court held that the compensation order was invalid as it conflicted with the statutory provisions that outlined the Tribunal's powers. Regarding the penalty, the court upheld the Tribunal's findings of misconduct and the recommendation for Kelly to be struck off. The court considered the seriousness of the breaches, including dishonesty and neglect, and concluded that the penalty was appropriate. The court also found that costs should be awarded to the Legal Services and Complaints Committee, as the appeal was largely unsuccessful.

In conclusion, the court invalidated the compensation order made by the Tribunal, affirmed the findings of misconduct, and upheld the recommendation to strike Kelly off the roll of legal practitioners. The court also ordered Kelly to pay costs to the Legal Services and Complaints Committee. This decision highlights the limited scope of the Tribunal's powers in making compensation orders and underscores the importance of adhering to statutory provisions when determining penalties for professional misconduct.

Orders