LEGAL SERVICES AND COMPLAINTS COMMITTEE and KELLY
[2024] WASAT 125
•22 NOVEMBER 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: LEGAL SERVICES AND COMPLAINTS COMMITTEE and KELLY [2024] WASAT 125
MEMBER: JUDGE H JACKSON, DEPUTY PRESIDENT
DR M EVANS-BONNER, SENIOR MEMBER
MR R POVEY, MEMBER
HEARD: 7 AUGUST 2024
DELIVERED : 22 NOVEMBER 2024
PUBLISHED : 22 NOVEMBER 2024
FILE NO/S: VR 39 of 2023
BETWEEN: LEGAL SERVICES AND COMPLAINTS COMMITTEE
Applicant
AND
PHILLIP JOHN MARK KELLY
Respondent
Catchwords:
Vocational regulation - Legal practitioner - Allegations of professional misconduct - Allegation of failure to file appeals within time - Allegation of undue delay in progressing the appeals, failing to respond to court correspondence and failing to comply with court orders - Allegations of misleading the court in the practitioner's affidavits and client's affidavits - Allegation of failing to attend the hearing of the appeals - Allegation of misleading the client regarding the hearing of the appeals - Allegation of misleading the court at the hearing of the appeals - Allegation of incompetence - Allegation of failing to keep the client informed and to respond to the client's communications - Allegation of failing to comply with Applicant's summons and failing to respond to Applicant's correspondence - Findings of professional misconduct and unsatisfactory professional conduct
Legislation:
Criminal Appeals Act 2004 (WA), s 8, s 8(1), s 8(1)(a), s 8(1)(b), s 10(3), Pt 2
Criminal Procedure Rules 2005 (WA), r 61(2), r 65, r 65(1), r 65(1)(c), r65(1)(e), r 65(1)(f), r65(3), r 65(6), r 67, r 67(1), r 67(2), r 67(4)
Interpretation Act 1984 (WA), s 37(1)(d)
Legal Practitioners Act 1893 (WA), s 29A
Legal Profession Act 2008 (WA) (repealed), s 402, s 403, s 403(1), s 403(1)(a), s403(1)(b), s 418, s 421, s 428(1), s438(1), s 438(2), s 520(2), s520(3), s520(5)
Legal Profession Conduct Rules 2010 (WA) (repealed), r 4(2), r 5, r 6(1)(c), r7(c), r 8, r 10(2), r 50(2), r 50(3)
Legal Profession Uniform Law Application Act 2022 (WA), s 260(a), s 313
Road Traffic Act 1974 (WA), s 49, s 49(1)(a), s 64(1), s 71C
Sentencing Act 1995 (WA), s 45(1), s 45(1)(a), s 45(1)(b)(ii)
State Administrative Tribunal Act 2004 (WA), s 87(2)
Result:
The practitioner engaged in professional misconduct and unsatisfactory professional conduct
Category: B
Representation:
Counsel:
| Applicant | : | Ms C Moss (Mr ND Pope and Ms N Mulvaney) |
| Respondent | : | No Appearance |
Solicitors:
| Applicant | : | Legal Services and Complaints Committee |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
AA Shi Pty Ltd v Avbar Pty Ltd (No 5) [2010] FCA 971
Bignell v Hopkins [2022] WASC 208
Bower v Legal Profession Complaints Committee [2018] WASCA 222
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Council of the Law Society of New South Wales v Webb [2013] NSWCA 423
Demagogue Pty Ltd v Nicholas Ramensky and Gisela Elizabeth Ramensky [1992] FCA 557; (1992) 110 ALR 608; (1992) 39 FCR 31
Fidock v Legal Profession Complaints Committee [2013] WASCA 108
Giudice v Legal Profession Complaints Committee [2014] WASCA 115
Hardy v Your Tabs Pty Ltd [2000] NSWCA 150
In the matter of Spero Pitsikas (1995) 1 LPDR 5
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115
Law Society of New South Wales v Moulton [1981] NSWLR 736
Law Society of New South Wales v Sullivan [2000] NSWADT 167
Legal Practitioners Complaints Committee and Lacerenza [2006] WASAT 177
Legal Practitioners Complaints Committee and Lim [2006] WASAT 90
Legal Practitioners Complaints Committee and Richardson [2006] WASAT 251
Legal Profession Complaints Committee and Bower [2017] WASAT 47
Legal Profession Complaints Committee and Bower [2017] WASAT 47
Legal Profession Complaints Committee and Chang [2019] WASAT 67
Legal Profession Complaints Committee and Lawson [2021] WASAT 152
Legal Profession Complaints Committee and Lourey No 2 [2023] WASAT 77
Legal Profession Complaints Committee and Segler [2013] WASAT 117
Legal Profession Complaints Committee v Lourey [2022] WASCA 114
Legal Profession Complaints Committee v Waters [2015] WASC 141
Legal Services and Complaints Committee and Ginbey [2023] WASAT 113
Legal Services and Complaints Committee and McCardle [No 2] [2023] WASAT 131
Legal Services Commissioner v Astley [2019] QCAT 274
Legal Services Commissioner v Laylee & Devlin [2016] QCAT 237
Legal Services Commissioner v Rouyanian [2013] QCAT 57
New South Wales Bar Association v Bland [2010] NSWADT 34
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant (LSCC) alleges that the respondent (Mr Kelly) has engaged in professional misconduct.
There are 10 separate grounds alleging professional misconduct spanning undue delay, incompetence, failures of communication including discourtesy, and dishonesty.
Notwithstanding the breadth of the complaints, the conduct in question is limited to Mr Kelly's involvement with a single client (the client) who wished to appeal two, related, motor vehicle convictions.
Mr Kelly failed to engage with the LSCC during its investigation (which is one of the grounds of complaint). He also failed to engage with the Tribunal during the interlocutory processes and did not attend the hearing.
For the reasons set out below, we are satisfied that each ground is made out and we find Mr Kelly guilty of professional misconduct under 9 of the 10 grounds and unsatisfactory professional conduct in relation to Ground 8.
Procedural history
As noted, Mr Kelly failed to engage with the Tribunal during the interlocutory stages of this matter. He then claimed to be ill on the morning of the (adjourned) hearing and sought an adjournment, which we refused. The hearing then proceeded in Mr Kelly's absence. Although we gave ex tempore reasons for our decision to refuse the application, it is useful to briefly revisit the matter.
Leading up to the hearing
Between the filing of the application and the hearing of this matter there were six directions hearings held, from which ~18 orders were made.
Other than giving his consent to certain orders,[1] Mr Kelly failed to engage with the Tribunal's processes in any meaningful manner:
(a)as best we can ascertain, he failed to attend any of the directions hearings;
(b)despite several opportunities to do so, starting with orders made on 27 June 2023, which orders were extended on 12 September 2023 and 12 March 2024, he failed to provide his formal response to the LSCC's allegations; and
(c)he failed to provide written submissions.
[1] Orders made on 2 June 2023, 28 August 2023 and 13 May 2024 adjourning the directions hearing; on 25 January 2024 extending time for compliance; and on 17 June 2024 vacating the directions hearing and programming the filing of written submissions.
He also failed to attend the hearing.
On 12 March 2024 orders were made for the matter to be listed for hearing after 1 June 2024 with Mr Kelly to provide his available dates.
On 18 March 2024, Mr Kelly advised the LSCC that it was 'likely' that he would have surgery 'in May or June' and would not therefore be available 'for a hearing until August' but that, after that, he had no unavailable dates. Despite the LSCC advising Mr Kelly to communicate his unavailable dates to the Tribunal, he did not do so and it was left to the LSCC to do so.[2]
[2] Exhibit 3, Annexure NDP2.
On 12 March 2024, orders were made requiring Mr Kelly to advise by 15 March 2024 whether he wished to participate in the hearing and, if so, to file by 29 April 2024 various documents, including his formal Response to the allegations. Order 5 provided that a failure to file those documents by that date would require him to obtain the Tribunal's leave to file any document.
Mr Kelly neither advised whether he wished to participate in the hearing, nor did he file any of the listed documents, whether by 29 April 2024 or otherwise.
On 9 May 2024, the matter was listed for a hearing of three days commencing on 5 August 2024.
The morning of the hearing
At 8.21 am on 5 August 2024, Mr Kelly sent two emails to various people, including Judge Jackson's Associate and Mr Pope, who was the solicitor with carriage of the matter for the LSCC. The two emails were incomplete versions of a third email, sent a few minutes later, which was as follows:
I shall not be in attendance at the hearing this morning. I presently have contracted a virus which has left me extremely unwell for the last week.
In the week prior to that, I was caring for my 96 year old Mother, who had contracted Covid. She did not test clear until 28 July, by which time I had already begun to feel unwell. The virus contracted is not Covid, but has symptoms analogous to it.
Symptoms presently experienced include headache, fever, confusion and fatigue. I have been in no position to either formulate a defence, prepare cross examination or prepare any other indicia. I was reviewed by my doctor on Friday 2 August, who recommended further bed rest.
I shall forward a medical certificate in due course.
At 9.25 am, Mr Kelly sent a fourth email attaching a medical certificate from Dr Andrew Britto, dated 5 August 2024, which stated only that Mr Kelly 'has a medical condition and will be unfit for court attendance from 05/08/2024 to 06/08/2024 inclusive'.
At 10.54 am, Judge Jackson's Associate emailed Mr Kelly and Mr Pope in the following terms:
Dear Mr Kelly,
I write on behalf of his Honour Judge Jackson, who is the presiding member of the three-person panel, tasked with hearing the above matter.
I refer to your four emails sent this morning.
In your emails, you have advised that you 'shall not be in attendance at the hearing this morning' but you do not seek an adjournment of the hearing.
Nonetheless, your email was understood by the panel as such an application.
The commencement of the (three day) hearing has been adjourned until Wednesday 7 August 2024 at 10.00 am to allow you the opportunity to clarify your position.
If you are content for the hearing to continue in your absence, you should say so.
If you wish for the hearing to be adjourned, you should advise as to the proposed duration of any adjournment.
Any application for adjournment will need to be supported by an affidavit which in turn attaches any other evidence in support of the application. For example, an application on medical grounds will need to be supported by suitable evidence from a medical practitioner.
In that regard, the Tribunal has received (by one of your four emails) a medical certificate from Dr Britto that advises you will 'be unfit for court attendance' today and tomorrow. It is inadequate for the purpose of supporting an application for an adjournment: see in this regard LPCC and Khosa [2023] WASAT 90, esp at [64].
Further in that regard, the panel notes that you do not appear to have complied with any of the orders made by the Tribunal on 12 March 2024 or since. It may be prudent for the medical evidence in support of an application for adjournment to explain that:
1.the certifying doctor is aware of the long history of non‑compliances with the Tribunal's orders and is satisfied that those non-compliances are explicable in light of relevant medical conditions suffered by you over that period;
2.the certifying doctor is satisfied that there are also sound medical reasons for your inability to prepare for this hearing over the last month or so; and
3.the certifying doctor is satisfied that you presently suffer from an illness that is such as to prevent your attendance at the hearing.
For the avoidance of doubt, the above list should not be seen as prescriptive or exhaustive. Rather, it is for you to put on such evidence as you consider sufficient to justify the adjournment in all of the circumstances.
Finally, you should ensure that any doctor who certifies to the above matters should be available to give evidence, by phone or videoconference (such as Zoom or Teams) if necessary, at the commencement of Wednesday's hearing.
Again for the avoidance of doubt, any application for adjournment will be heard at 10 am on Wednesday. Unless the panel is satisfied that there are proper grounds to support any application for adjournment, the hearing will proceed, regardless of your attendance or otherwise.
The Associate's email attached the relevant order of the Tribunal which provided for the adjournment of the commencement of the hearing to 10.00 am on 7 August 2024.
The morning of the adjourned hearing
At 7.50 am on Wednesday 7 August 2024, Mr Kelly sent an email to Judge Jackson's Associate and Mr Pope which stated that he remained unwell and sought an adjournment of the hearing 'to a date between 16 September 2024 to 30 September 2024'. He said that date was chosen as, he said, he was 'to undergo abdominal surgery … on Monday 12 August and have been advised that the recovery time for same is 3‑4 weeks'.
At 8.01 am Mr Kelly sent another email, which forwarded an email from a Dr Blackburn dated 19 July 2024 which provided details of Mr Kelly's scheduled surgery on 12 August 2024. On its face, Dr Blackburn's email appeared to suggest that the surgery was for gastric banding, and we proceeded on the basis that the surgery was elective.
At 8.53 am, Mr Kelly sent another email to Judge Jackson's Associate and Mr Pope. The email attached a second medical certificate from Dr Britto, dated 7 August 2024, which said only that Mr Kelly had 'a medical condition and will be unfit for court attendance from 07/08/2024 to 08/08/2024 inclusive'.
That is, despite the Associate's email: no affidavit in support of the application was provided; no explanation was given as to how the future elective surgery was relevant to the adjournment application; the medical certificate contained no details and Dr Britto was not made available to answer any questions we may have had.
We dismissed the adjournment application and gave ex tempore reasons which included the above matters. We also noted that the late and unexplained adjournment application was consistent with Mr Kelly's history of failing to engage with the Tribunal's interlocutory processes and that the hearing dates were chosen three months prior and were consistent with Mr Kelly's availability, but he put on no material that he had prepared for the hearing and that any current illness was, in fact, an unexpected and temporary inconvenience.
For those reasons we had no confidence at all that, should the hearing be adjourned until mid-September, there would not be another application to adjourn, based on an equally vague reason, medical or otherwise.
The hearing
At the hearing, the LSCC tendered the following documents:
(a)Applicant's Book of Documents dated 16 November 2023 (Exhibit 1);
(b)Applicant's Supplementary Book of Documents dated 24 July 2024 (Exhibit 2);
(c)Affidavit of Mr Pope sworn 2 August 2024 including attachments NDP-1 to NDP-6 (Exhibit 3);
(d)Affidavit of Natalie Mulvaney sworn on 7 August 2024 including attachments NM-1 to NM-22 (Exhibit 4); and
(e)a witness statement of Mr Kelly's former client dated 20 February 2024 (Exhibit 5).
We allowed the LSCC to file a 'Further Amended Annexure A' before the hearing commenced. That document sets out the allegations made against Mr Kelly and the facts alleged in support of them. We did so on the basis that it made no substantive amendments.
The only documents before us by which we might understand Mr Kelly's answer to the grounds of complaint made against him are two letters that he wrote in response to letters from the LSCC, which were as follows:
(a)A letter dated 30 June 2021[3] which incorrectly refers to a letter from the LSCC dated 20 July 2020. Mr Kelly's letter is, clearly, responding to the LSCC's letter of 9 July 2020[4] but the date of his letter (nearly 12 months after the LSCC letter to which it responds) was attached to an email of the same date and we find that it bears the date it was sent.
(b)Mr Kelly's letter of 7 September 2021,[5] which also incorrectly refers to a letter from the LSCC dated 20 July 2020. The 7 September 2021 letter appears to have been in response to the LSCC's letter of 5 August 2021 by which it, amongst other things, reminded him of the need to comply with its summons of 9 April 2021, which required a response by 23 April 2021.[6]
[3] Exhibit 1, pages 341 - 344.
[4] Exhibit 1, pages 333 - 340.
[5] Exhibit 1, pages 348 - 352.
[6] Exhibit 1, pages 332, 345 - 347.
The statutory regime and legal principles
This matter was commenced by the LSCC's referral to the Tribunal per s 428(1) of the Legal Profession Act 2008 (WA) (LP Act).[7]
[7] All sections referred to hereafter are sections of the LP Act unless stated otherwise.
By s 438(1) the Tribunal is provided with 'jurisdiction to make a finding that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct'.[8]
[8] The LP Act was repealed by s 260(a) of the Legal Profession Uniform Law Application Act 2022 (WA) (Uniform Application Act) on 1 July 2022. However, by s 313(1)(c) and (2) of the Uniform Application Act the LP Act continues to apply to this case.
Sections 402 and 403 defined 'unsatisfactory professional conduct' and 'professional misconduct' respectively:
unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
professional misconduct includes —
(a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
These statutory definitions are not exhaustive and the common law test of professional misconduct, as enunciated in Kyle,[9] and set out immediately below continues to apply.[10]
[professional misconduct includes] conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or 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. The first limb of this summary includes, but is not confined to, conduct which occurs in the course of legal practice. The other limb necessarily relates to conduct in the course of legal practice because of the reference to "professional conduct".
[9] Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115 at [61].
[10] Legal Profession Complaints Committee v Lourey [2022] WASCA 114 at [197]. See, also, Legal Profession Complaints Committee and Lourey No 2 [2023] WASAT 77, (Lourey) [219] - [234].
The 10 grounds of complaint each allege a slightly different combination of the different tests for professional misconduct. It is necessary that we address each version for each ground.[11]
[11] Legal Profession Complaints Committee v Lourey [2022] WASCA 114 at [185] - [187].
In several grounds, Mr Kelly is alleged to have breached the Legal Profession Conduct Rules 2010 (WA) (Conduct Rules). Although since repealed, the Conduct Rules were in force at the time of the conduct in question and, per s 37(1)(d) of the Interpretation Act 1984 (WA), continue to have effect for present purposes.
The relevant Conduct Rules are rules 6(1)(c), 7(e), 8, 10(2), 34(1) and 50. Rather than set them out here, we will address them when they arise.
The onus and standard of proof to be applied in disciplinary matters was explained by the Tribunal in Chang:[12]
The Committee bears the onus of proof in relation to the allegations of professional misconduct it makes against the practitioner. The civil standard of proof ('on a balance of probabilities') applies together with the Briginshaw approach, which requires clear and cogent evidence to be adduced by the Committee and for the Tribunal to feel an actual persuasion of the occurrence or existence of relevant facts before it can find the practitioner guilty of professional misconduct (or unsatisfactory professional conduct). The Briginshaw approach applies in disciplinary proceedings, because of the nature and seriousness, and potential consequences, of allegations of wrongdoing (or incompetence) made in such proceedings. As Dixon J said in Briginshaw vBriginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361 - 362:
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. (Footnote omitted)
[12] Legal Profession Complaints Committee and Chang [2019] WASAT 67 at [8].
We adopt this paragraph but would respectfully add that the passage quoted from Briginshaw above concludes with the following sentence: '[i]n such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences'.[13]
[13] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) at 362 (per Dixon J).
Further, we are mindful that, given the serious consequences of a disciplinary finding, we cannot be 'reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact'.[14]
[14] Briginshaw at 368 (per Dixon J).
In these reasons, where we express ourselves as being satisfied, we are to be taken to be satisfied in accordance with the above standard.
The client's RTA convictions
On 17 February 2017, the client was charged with driving a motor vehicle with a blood alcohol content exceeding 0.08% in contravention of s 64(1) of the Road Traffic Act 1974 (WA) (RTA). The officer gave him a disqualification notice pursuant to s 71C of the RTA.[15]
[15] Exhibit 5, page 1.
After he was charged, the client left his vehicle on the side of the road. The next day, he returned to collect his vehicle. While he was driving home, he was stopped and charged with driving a vehicle without authority, contrary to s 49(1)(a) of the RTA.[16]
[16] Exhibit 1, page 6.
On 20 March 2017, the client (unrepresented) pleaded guilty and was convicted of the first charge in Fremantle Magistrates Court. He was fined $650 and disqualified from holding or obtaining a driver's licence for eight months (First Conviction).[17]
[17] Exhibit 1, page 1; Exhibit 5, para 6.
On 5 April 2017, the client (unrepresented) pleaded guilty and was convicted of the second charge in the Midland Magistrates Court. He was fined $400 and disqualified from holding or obtaining a Driver's Licence for a further nine months (Second Conviction).[18] We refer to both as the Convictions.
[18] Exhibit 1, page 6; Exhibit 5, para 8.
At the hearing of the second charge, the client asked the presiding Magistrate for the disqualification to be served concurrently with that imposed for the First Conviction. He explained that he had just started a new job and that, if his licence was still suspended when he changed offices at the end of the year, he would lose his job. The presiding Magistrate refused, saying that a concurrent disqualification was not possible in the circumstances.[19]
[19] Exhibit 1, pages 10 - 11.
Ground 1
The LSCC alleges that Mr Kelly engaged in professional misconduct[20] 'by failing to commence appeals on behalf of [the client] within the times required by the Criminal Appeals Act 2004 (WA) (CA Act) in respect of the penalties resulting from' each of the two Convictions (the Appeals).
[20] Ground 1 expresses three possible forms of professional misconduct; that under s 403(1)(a) and both limbs of Kyle.
Subsection 10(3) of the CA Act provides that '[a]n appeal against a decision cannot be commenced later than 28 days after the date of the decision unless the Supreme Court orders otherwise'.[21]
[21] Section 10(3) of the CA Act is in Part 2 which concerns 'Appeals from courts of summary jurisdiction'. Section 6 (also in Part 2) defines 'decision' of a court of summary jurisdiction very widely including a sentence imposed as a result of a conviction.
As noted above, the First Conviction was on 20 March 2017 and the Second Conviction was on 5 April 2017. Accordingly, the First Conviction had to be appealed by 18 April 2017 and the Second Conviction had to be appealed by 3 May 2017.
There is no doubt that those deadlines were not met; the Appeal Notices were not filed until 28 February 2018. However, Mr Kelly has suggested that the delay was not as egregious as might first be thought because he was not instructed on the first occasion he met with the client.[22] There is also the question of the characterisation of the delay, which involves an examination of the reasons for delay. We will address each in turn.
When was Mr Kelly first instructed?
[22] Exhibit 1, page 348.
Mr Kelly first met with the client to discuss appealing the two Convictions on 12 April 2017 at a meeting arranged by his employing firm (GTC).[23]
[23] Exhibit 1, pages 333, 342 and 348.
Mr Kelly admits that meeting. However, in his 7 September 2021 letter to the LSCC, he claimed that the client signed a 'no retainer form' following the initial consultation on 12 April 2017 and he was not formally instructed until 7 September 2017.[24]
[24] Exhibit 1, page 348.
We do not have a 'no retainer' form before us; Mr Kelly did not file any such document and neither of his two letters to the LSCC purport to attach a copy.
There is a degree of corroboration to Mr Kelly's claim that the client did not wish to proceed from an email dated 4 October 2017.
As we will see, Mr Kelly met the client on 6 September 2017 and wrote to him the following day, 7 September 2017. He says that it was on that day – 7 September 2017 – that he was instructed.
By email dated 4 October 2017 from Mr Kelly to Ms TA, a solicitor at GTC, Mr Kelly attached forms that the client had signed and returned and asked Ms TA to 'make up the file and then find in my file of consults not proceeding my notes on his initial consult'.[25]
[25] Exhibit 1, page 30.
We infer from that email that at some stage after the 12 April 2017 meeting with the client – perhaps immediately or perhaps much later – Mr Kelly placed his notes of that meeting in a file of 'consults not proceeding'.
There is no evidence to confirm when that happened, nor the basis on which he formed a view (if, indeed, that occurred) that the client was not proceeding with his instructions.
But the email does provide a degree of support for Mr Kelly's version of events.
Nonetheless, we reject the suggestion that Mr Kelly was not instructed to progress the client's appeals from 12 April 2017. The evidence to the contrary is, in our view, considerable.
It starts with the email received by Mr Kelly on 11 April 2017 from GTC which, under the heading, 'Instructions', briefly described the factual background to the two Convictions and said: '[h]e wants to appeal the decision because he cannot have a conviction on his record and he wants both his sentences to run concurrently'.[26]
[26] Exhibit 1, page 14.
The client's evidence as to the 12 April 2017 meeting was consistent with those 'Instructions'. That evidence was contained in his witness statement[27] which, as Mr Kelly did not attend the hearing, was tendered without objection and was not the subject of cross-examination. In it, the client said that at the meeting on 12 April 2017:[28]
(a)he explained to Mr Kelly the 'circumstances of the Convictions and the risk to [his] employment of the Licence Disqualification';
(b)Mr Kelly 'advised [him] that there were good prospects of getting spent convictions in respect of the Convictions. He did not go into detail, but was very positive about appealing on that basis'; and
(c)Mr Kelly 'impressed' upon him (the client) 'that the matter was urgent, particularly as the time for appealing was 28 days from the date of each Conviction', estimated the fees would be around $5,000 and told the client:
… that he would send me some paperwork which would confirm the fees and how much I would be required to pay upfront. He said that if I was then happy to proceed, I would need to sign the paperwork and make the payment required. He mentioned that the first thing he would do was request transcripts of the hearings relating to the Convictions.
As a result of what was said at the appointment with Mr Kelly and the urgency of the matter, I had expected to receive the paperwork from Mr Kelly within a few days.
[27] Exhibit 5.
[28] Exhibit 5, paras 12 - 15.
The client's evidence was that when he had not heard from Mr Kelly by 20 April 2017 he called GTC on that day but was unable to speak to Mr Kelly and left a message for him asking him to return the call.[29] That evidence is supported by an internal GTC email to that effect.[30]
[29] Exhibit 5, para 16.
[30] Exhibit 1, page 17.
The client's evidence was that Mr Kelly did not contact him in response to his message on 20 April 2017.[31] The client said that he called again on 18 May 2017. An internal GTC email sent to Mr Kelly on that date stated:
Hi guys, [the client] called advising it has been 2 weeks since he met with [Mr Kelly] and he still does not have a retainer or a quote. He said that [Mr Kelly] advised that after the last long weekend he was going give him some more info, and provide a pricing package. He has tried to get hold of [Mr Kelly] but has not had a call back. He is also concerned as it is an appeal and he had 28 days to respond and it is past that now[32]
[31] Exhibit 5, para 17.
[32] Exhibit 1, page 18.
The client's evidence was that until September 2017, he contacted GTC every two weeks or so, asking to speak to Mr Kelly but was told each time that Mr Kelly was not available or that he was in Court. He stated that he left messages for Mr Kelly to call him back, but that he did not do so.[33]
[33] Exhibit 5, para 18.
However, save for the GTC emails of 20 April 2017, 18 May 2017, 8 August 2017 and 1 September 2017, there is no other objective evidence to support the client's evidence of his attempts to contact Mr Kelly.
On 7 September 2017, Mr Kelly emailed the client thanking him for 'the consultation on 20 April 2017'.[34] Amongst other things, the email stated: 'I confirm that you now intend to appoint us as your legal representative for your traffic law matter'. It also noted the client's 'prospective instructions' were to:
Obtain documents provided relating to your suspension of MDL
Draft Notice of Appeal and Affidavit in support;
Provision of letter of advice;
Advice and representation at Supreme Court of Western Australia at hearing of the Application
[34] Exhibit 1, page 22.
The client's evidence is that his 'recollection is that prior to Mr Kelly's email [of 7 September 2017 he] eventually ended up speaking to Mr Kelly by phone, who confirmed that he would be sending [the client] the paperwork for GTC to act'.[35]
[35] Exhibit 5, para 22.
That is supported by a printout of what appears to have been a diary entry for 6 September 2017 which shows an entry stating 'Telephone – [client's name]' for 4 - 5pm.[36]
[36] Exhibit 1, page 21.
The 7 September 2017 email from Mr Kelly attached copies of GTC's Client Instruction Sheet and Trust Account Authority, asking the client to sign, scan and return them 'in order that we can set up your file'. The email also gave an estimate of $6,000 for the work and confirmed that $1,500 was to be deposited into GTC's trust account 'before [Mr Kelly] can commence work on your matter'.[37]
[37] Exhibit 1, pages 22 - 24.
On 11 September 2017, the client emailed the scanned and signed copies of the Client Instruction Sheet and the Trust Account Authority back to Mr Kelly.[38] He also deposited $1,500 into GTC's trust account that day.[39]
[38] Exhibit 1, pages 24 - 28.
[39] Exhibit 5, para 24.
The preceding summary of the evidence before us as to the meeting of 12 April 2017 and its aftermath provides, in our view, a proper basis for our finding that Mr Kelly was instructed by the client to progress his appeals on that date, and not on 7 September 2017. That is:
(a)GTC's 11 April 2017 email to Mr Kelly set out the client's instructions, which were confirmed at the 12 April 2017 meeting.
(b)The client's uncontradicted evidence as to what was said in his meeting with Mr Kelly on 12 April 2017 evidences his motivation, due to the consequences of the licence disqualifications for his future employment, to progress the appeals immediately. Further, his evidence is that Mr Kelly discussed the 28-day time limit for the appeals, gave him an estimate of fees and said that the first action he would undertake to progress the appeals was to request the court transcripts relating to the Convictions.
(c)Following the meeting:
(i)the client was waiting for Mr Kelly to send him paperwork to formalise the arrangement and make the payment required;
(ii)there was nothing for the client to do other than to wait for the relevant paperwork; Mr Kelly was not waiting for further information from the client, nor for the client to decide whether he wanted to proceed;
(iii)the client made several (at least) attempts to contact Mr Kelly after the meeting. There is documentary evidence of calls on 20 April, 18 May, 8 August and 1 September 2017. The client gave unchallenged evidence of several more although there is nothing to corroborate that, unlike for the dates just noted; and
(iv)the internal GTC email of 18 May 2017 is consistent with the view that the client was waiting for Mr Kelly to act and was concerned that the statutory deadline for the appeals had passed whilst waiting for that action.
In our view, the client's subsequent attempts to contact Mr Kelly to progress the Appeals, including explaining to the GTC staff member who took the message on 18 May 2017, is persuasive evidence in support of the LSCC's allegation that the client had instructed Mr Kelly on 12 April 2017.
To the extent that Mr Kelly may have not been clear in that regard at the conclusion of that meeting, the subsequent phone calls from the client put him on notice that he may have been wrong in that regard.
That is, we are satisfied and we find that Mr Kelly knew that the client had instructed him at the conclusion of the 12 April 2017 meeting. If we are wrong, by no later than 18 May 2017 (and, more likely, 20 April 2017) he was recklessly indifferent as to that fact.
Put another way, Mr Kelly cannot take advantage of his own delay in providing the relevant paperwork to the client in September 2017 so as to suggest that there was no relevant relationship until that time. Equally, the wording of the email of 7 September 2017, which uses language to suggest that Mr Kelly was appointed from that date,[40] does not in our view retrospectively remedy the point in time when Mr Kelly was actually engaged.
Characterisation of the delay
[40] E.g. 'I confirm that you now intend to appoint us' and the need for the trust account deposit to be paid 'before I can commence work'.
To characterise Mr Kelly's conduct in this regard, it is necessary to understand the reasons for delay. As we have previously noted, the Appeal Notices were not filed until 28 February 2018. We have just addressed the period from 12 April 2017 to 7 September 2017. We now turn to briefly describe the events which followed Mr Kelly's email of 7 September 2017.
As noted above, that email attached copies of relevant documents and sought the deposit of $1,500 into GTC's trust account. On 11 September 2017, the client emailed the scanned and signed copies of the documents to Mr Kelly[41] and deposited $1,500 into GTC's trust account.[42]
[41] Exhibit 1, pages 26 - 28.
[42] Exhibit 5, para 24.
Mr Kelly appears to have been on leave from the close of business on 29 September 2017 until 9 October 2017.[43] There is no evidence of him taking any steps to progress the matter between 11 and 29 September 2017.
[43] Exhibit 1, page 29.
Despite apparently being on leave, on 4 October 2017 Mr Kelly emailed Ms TA to ask her to 'make up the file'. In that email he also asked her to obtain a certified copy of the Prosecution Notices and a transcript of the proceedings in the Magistrates Court. He also asked her to 'have a stab at drafting an SJA Appeal Notice, Application for leave out of time and an affidavit in support'.[44]
[44] Exhibit 1, page 30.
To be clear, it would appear to have taken nearly a month after the 7 September meeting for Mr Kelly to take these first steps towards an appeal.
On 10 October 2017, a law clerk from GTC, Ms DA, emailed a letter from the partner, Ms YM, and a Cost Agreement to the client.[45] Amongst other things, cl 13 of the Cost Agreement stated that Mr Kelly 'will have carriage of your matter'.
[45] Exhibit 1, pages 33 - 43.
On approximately 31 October 2017, the client paid the further $4,500 into the firm's trust account, as requested by Ms YM's letter.[46]
[46] Exhibit 5, para 28.
As should be clear from the above, it was necessary for each of an Appeal Notice, copies of the Prosecution Notices and Magistrates' Court transcripts, and an affidavit in support of an application for an extension of time to be prepared and filed with the Court to commence the client's appeal.
We have already noted that on 4 October, Mr Kelly asked Ms TA to obtain the transcripts and Prosecution Notices. We will discuss the delays in this regard in more detail in Ground 2 below. However, relevant to this ground, the Fremantle Magistrates' Court:
(a)on 11 October 2017 emailed Mr Kelly a certified copy of the Prosecution Notice for the First Conviction;[47] and
(b)on 29 November 2017 advised Mr Kelly that the transcript was complete and that the balance of the transcript fee was due before it could be sent.[48]
[47] Exhibit 1, pages 53 - 55.
[48] Exhibit 1, page 60.
Equally, the Midland Magistrates' Court:
(a)on 23 October 2017 emailed GTC a certified copy of the Prosecution Notice for the Second Conviction;[49]
(b)on 6 November 2017, emailed Mr Kelly to advise that the transcript was available and the Court could provide him with a copy when the balance of the transcript fee was paid.[50]
[49] Exhibit 1, pages 102 - 105.
[50] Exhibit 1, page 59.
Consequently, by 29 November 2017, Mr Kelly had obtained the Prosecution Notices and was able to obtain both transcripts. Despite this, he did not lodge either with the Appeal Notices when they were filed on 28 February 2018.[51]
[51] Letters from the Supreme Court of Western Australia dated 7 March 2018 (Exhibit 1, page 110); and posted 9 March 2018: Exhibit 1, page 111.
With respect to the affidavit in support, it was not until 5 February 2018 that Mr Kelly emailed the client to advise that he was 'presently' drafting his (the client's) affidavit and requested various details which the client provided by email the same day.[52] Despite this, no affidavit was lodged with the Appeal Notices on 28 February 2018.
[52] Exhibit 1, pages 72 - 73.
No delays can be attributed to the client. Indeed, not only did he respond very promptly when asked to do so (as we have outlined above), he sought updates by telephoning Mr Kelly and leaving messages (which went unanswered) on 19 January 2018[53] and 30 January 2018.[54]
[53] Exhibit 1, page 65; Exhibit 5, paras 29 - 30.
[54] Exhibit 1, page 66; Exhibit 5, para 31.
As stated above, the Appeal Notices were not filed until 28 February 2018.[55] That is, the appeal for the First Conviction was lodged 316 days late and the appeal for the Second Conviction was lodged 301 days late.
[55] Exhibit 1, pages 108 - 109; 110 - 111; 127.
Also, when filed on that date the Appeal Notices did not comply with r 65 of the Criminal Procedure Rules 2005 (WA) (Procedure Rules) because no Prosecution Notice was lodged contrary to r 65(1)(e), no transcript was lodged contrary to r 65(1)(f) and no affidavit was lodged explaining why the appeal was not lodged on time contrary to r 65(3).
In his letter to the LSCC of 7 September 2021, Mr Kelly admitted that he filed the Appeal Notices without certified copies of the Prosecution Notices and transcripts and without an 'application' for an extension of time.[56]
[56] Exhibit 1, pages 348 - 349.
As to the former, he sought to explain the delay in obtaining the Prosecution Notices and transcripts by saying that such tasks were 'delegated' to Practical Legal Training (PLT) students and that there was inconsistency with such students. He said that this matter appeared to be an:
… exemplar of what could and does go wrong when tasks are delegated to a Solicitor/Office Manager and thereafter to PLTs as well as imposing an excessive workload upon a practitioner to such a point that the practitioner has little or no time to conduct regular file reviews.[57]
[57] Exhibit 1, page 349.
Such a characterisation is inconsistent with the evidence before us, which is that it took Mr Kelly until 4 October 2017 to ask Ms TA to obtain those documents and he was provided with the Prosecution Notices within three weeks. He was also advised by the relevant courts that the transcripts were available and would be provided upon the payment of the relevant fee, which was not paid for some time.
As to the latter, he stated that 'experience of Single Judge Appeal matters in the past is that it is not unusual for an Appeal Notice to be filed without such an application and the application being subsequently made in running'.[58] It strikes us as unlikely that such a practice, which is contrary to the Procedure Rules, would occur so often that it might be described as 'not unusual'.
[58] Exhibit 1, page 348.
In any event, even though by 29 November 2017 he had both Prosecution Notices, and the transcripts for both Convictions were available to obtain from the Magistrates Courts, Mr Kelly did not start to prepare the client's affidavit in support of an extension of time until 5 February 2018.
Further, and somewhat inexplicably, even though he had possession of the Prosecution Notices and one of the transcripts, they were not filed with the Appeal Notices.
Even if we give Mr Kelly the benefit of the doubt that the Court may allow the late filing of the affidavit 'in running', he nevertheless failed to comply with r 65 of the Procedure Rules, by failing to lodge the transcripts and Prosecution Notices that were in his possession and/or available.
The delays were not caused by the client and we do not accept that others within GTC ought to be attributed with any blame either. The client made several efforts (at least) to follow up Mr Kelly and responded promptly when asked to do so.
For these reasons we find that Mr Kelly neglected and delayed progressing the client's appeals over a period of nearly 11 months. That is a very lengthy period of time given the statutory timeframe. But even if we are wrong as to when Mr Kelly was instructed, the delay is still approximately 5 months, which is still a very lengthy period of time in the circumstances.
We also find that there is no justification for the delay. There is no merit in his attempt to shift the focus to the office manager and PLT students and no other attempt was made to explain, let alone excuse, the delay. In that regard we note that the delay occurred in circumstances where:
(a)Mr Kelly was aware of the statutory time limits when he first met the client in April 2017;
(b)the client made several attempts (at least) to follow up Mr Kelly throughout the period of delay and was prompt when asked to attend to matters;
(c)Ms TA appears to have acted promptly when asked to obtain Prosecution Notices and transcripts;
(d)the Appeal Notices were filed without any supporting affidavit evidence or the Prosecution Notices and transcripts.
For these reasons, we are satisfied and we find that the delay in commencing the appeals amounts to professional misconduct because it was conduct that:
(a)substantially fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner: s 403(1)(a);
(b)'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': the second limb of Kyle; and
(c)'would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence': first limb of Kyle.
Ground 2
By Ground 2, the LSCC alleges that Mr Kelly engaged in professional misconduct in that he 'failed to progress the Appeals in a timely and competent manner, failed to respond to, and/or file documents in response to, correspondence from the Court, and failed to comply with Court orders'.
There are five sub-grounds, which we will address in turn, but common to each ground is Mr Kelly's response in his letter of 7 September 2021 to the LSCC's allegations. That response was as follows:
I admit the substance of the allegation and repeat the substance of my observations regarding the excessive delegation of tasks to PLTs as part of GTC's prevailing culture. Likewise, I accept responsibility for the consequences flowing from the manner in which the matter was handled.[59]
Sub-ground 2(1)
[59] Exhibit 1, pages 349 - 350.
This sub-ground alleges that Mr Kelly engaged in professional misconduct by not serving the Appeal Notices on the respondents to those appeals until 12 April 2018.
The failure to serve the respondents had the effect of stalling the appeal because, unless and until that service occurs, no other steps can occur. Rule 67 of the Procedure Rules provides that, within 7 days of being served, the respondent must lodge a Notice of the Respondent's Intention (Form 22). A failure to do so means that the respondent is not entitled to take part or be heard in the appeal: r 67(1), (2) and (4) of the Procedure Rules. The effect is, therefore, that the appeal cannot proceed until the respondent is served.
We have before us a service certificate dated 30 April 2018 for the appeal of the First Conviction, with the court stamp showing that the document was filed in the Court on 1 May 2018.[60] By that certificate Mr Kelly certified that he personally served the respondent on 12 April 2018.
[60] Exhibit 1, page 123.
We do not have before us a service certificate relating to the appeal of the Second Conviction. However, on a copy of the Appeal Notice for the Second Conviction we note there is a stamp stating, 'received 12 April 2018 Legal Services'.[61] That is the date on which Mr Kelly certified that he served the respondent with the Appeal Notice for the First Conviction (discussed in the paragraph above). That date is also consistent with the allegation in the LSCC's letter of 9 July 2020 and Mr Kelly's letter in response of 7 September 2021.[62]
[61] Exhibit 1, page 106.
[62] Exhibit 1, pages 334 and 349.
Accordingly, we are satisfied and we find that Mr Kelly did not serve the Appeal Notices (filed on 28 February 2018) on the respondents to the appeals until six weeks later - 12 April 2018.
We have set out Mr Kelly's response to the allegation above – he effectively seeks to shift blame to 'the excessive delegation of tasks to PLTs'. That explanation is inconsistent with the service certificate which states that Mr Kelly himself gave personal service on the respondents. But in any event, as the practitioner with conduct of the file, it was his obligation to ensure service was effected.
We therefore find that Mr Kelly failed to serve the Appeal Notices, filed on 28 February 2018, on the respondents until 12 April 2018.
Sub-ground 2(2)
This sub-ground alleges delays in obtaining and filing the Prosecution Notices and transcripts at the Supreme Court.
Under Ground 1 we have already briefly described the obligation to file the Prosecution Notices and the Magistrates' Court transcripts with the Appeal Notices and found that Mr Kelly made no attempt to obtain them until 4 October 2017 when he emailed Ms TA to request them.
On 10 October 2017, Ms TA emailed letters to both the Fremantle and Midland Magistrates' Courts enclosing the relevant form for the request of certified copies of the Prosecution Notices and relevant transcripts.[63]
[63] Exhibit 1, pages 44 - 51.
As we also previously found, on 11 October 2017 the Fremantle Magistrates' Court emailed Mr Kelly a certified copy of the Prosecution Notice for the First Conviction.[64]
[64] Exhibit 1, pages 53 - 55.
There appears to have been some confusion as to obtaining the Prosecution Notice from Midland Magistrates' Court:
(a)On 23 October 2017, Ms TA asked a law clerk at GTC to follow up Midland Magistrates' Court. The email in reply advised that the court had no record of receiving the request and that it needed to be sent through again.[65]
(b)However, by an email dated 14 February 2018 the Midland Magistrates' Court advised that a certified copy of the Prosecution Notice for the Second Conviction had been emailed to GTC on 23 October 2017.[66]
[65] Exhibit 1, page 56.
[66] Exhibit 1, page 102.
As to the transcript, a file note made by Ms TA on 31 October 2017 confirms that she telephoned Midland Magistrates' Court in that regard. It records that the transcript was not yet available, and that the Court would contact GTC when it was.[67] Ms TA advised the client in that regard.[68]
[67] Exhibit 1, page 57.
[68] Exhibit 1, page 58.
As previously observed, on 6 November 2017 the Midland Magistrates' Court emailed Mr Kelly saying that the transcript was available upon payment of an outstanding fee.[69] The Fremantle Magistrates' Court did the same on 29 November 2017 and 6 December 2017.[70]
[69] Exhibit 1, page 59.
[70] Exhibit 1, pages 60 and 61.
There is no evidence before us that Mr Kelly, or anyone on his behalf attempted to access the available transcripts until February 2018 - nearly three and four months respectively after the transcripts were available.[71]
[71] On 1 February 2018 a GTC law clerk requested accounts to authorise two credit card authorities to pay for the transcripts: Exhibit 1, pages 68 - 70.
On 2 February 2018, a GTS law clerk emailed the Midland and Fremantle Magistrates' Courts requesting the transcripts again.[72] On 5 February 2018, the Fremantle Magistrates' Court requested that a Form 1 be completed. On 6 February 2018, the law clerk attached the Form 1's that were previously sent.[73]
[72] Exhibit 1, pages 74 - 75.
[73] Exhibit 1, page 74.
On 6 February 2018, GTC paid the balance of the fee for the transcript to both the Midland and Fremantle Magistrates' Court, received the transcript from Midland that day[74] and received from Fremantle Magistrates' Court advice that the transcript would be available in 14 days.[75]
[74] Exhibit 1, pages 88 - 89; 91 - 97.
[75] Exhibit 1, pages 98 - 99.
On 14 February 2018, a GTC law clerk again emailed the Midland Magistrates' Court to request the Prosecution Notice to which the Court advised that it was provided on 23 October 2017 but attached it again.[76]
[76] Exhibit 1, page 102.
As previously found, the Appeal Notices were filed on 28 February 2018 without the Prosecution Notices or transcripts, or affidavits in support of the extension of time application. At that time, Mr Kelly had obtained both Prosecution Notices and had the Midland Magistrates' Court transcript.
On 7 March 2018 the Supreme Court wrote two letters (one for each appeal) to GTC, which stated that the appeals could not progress without the transcripts and Prosecution Notices and until a certificate of service had been lodged. Both letters warned that if the documents were not received by 11 April 2018, the matters would be referred to a Judge who may dismiss the Appeals and that if that timeframe could not be met then a written explanation should be provided for the Judge.[77]
[77] Exhibit 1, pages 110 - 111.
There is no evidence that Mr Kelly responded to the Supreme Court's letters of 7 March 2018. We are satisfied and we find that he did not.
On 8 March 2018, the Fremantle Magistrates' Court emailed Mr Kelly to advise that the transcript had arrived and request the outstanding costs be paid. On 9 April 2018, the court followed up, stating that if he no longer wanted the transcript, to let them know and they would close the request. Mr Kelly responded the same day, stating (incorrectly) that he had 'received this transcript some months ago'.[78]
[78] Exhibit 1, pages 112 - 113.
On 13 April 2018, the client emailed Mr Kelly to ask about his appeals, saying, amongst other things:
During our conversation on Tuesday you informed me you would follow up with the courts on Wednesday. I'd like to know what you've found out from the call.
The appeal seems to be taking longer that [sic] originally thought. It was drafted on February 13th and submitted to the courts on May 1st [sic]. We're now halfway through April and I'm still no closer than where I was after I signed the cost agreement on the 10th of September last year.
I am under an enormous amount of pressure at work to get my licence back. Please contact me with any updates on the appeal and what actions are being taken to progress this.[79]
[79] Exhibit 1, page 114.
The client's uncontradicted evidence, which we accept, is that Mr Kelly did not contact him in response to his email.[80]
[80] Exhibit 5, para 38.
On 16 April 2018 Archer J's Associate emailed Mr Kelly and: (1) referred to the Court's letter of 7 March 2018; (2) reminded him that the outstanding documents needed to be filed; and (3) also reminded him that an affidavit in support of an extension of time was also required. The Associate asked Mr Kelly to file the documents by 1 May 2018 and advised that the 'appeal may be dismissed' if they were not.[81]
[81] Exhibit 1, page 115.
Mr Kelly finally received the transcript from the Fremantle Magistrates' Court on 30 April 2018. In his email of that day, Mr Kelly confirmed a telephone conversation with the court to the effect that: (1) his previous email regarding the transcript was incorrect; (2) that he had been advised by a paralegal that GTC had received the transcript, but that was not correct; and (3) he sought the transcript as a matter of urgency.[82]
[82] Exhibit 1, page 117.
The Fremantle Magistrates' Court emailed the transcript to Mr Kelly the same day[83] and on the following day he filed certified copies of the Prosecution Notices, transcripts of the Magistrates' Court proceedings, and certificates of service for the Appeal Notices in the Supreme Court.[84]
[83] Exhibit 1, page 117.
[84] Exhibit 1, pages 124 - 125.
In short, although he was instructed by the client on 12 April 2017, he did not take steps to obtain the transcripts and Prosecution Notices until 4 October 2017 when he instructed Ms TA to obtain them, and she did not make the requests to the courts until 10 October 2017, some six months after the client instructed Mr Kelly at their meeting on 12 April 2017.[85]
[85] Even if we are wrong as to when Mr Kelly was instructed, a month passed between the meeting of 6 September 2017 and his instructions to Ms TA to obtain the documents.
The Prosecution Notices were obtained on 11 October 2017 for the First Conviction and on 23 October 2017 for the Second Conviction. That was approximately six months after the 12 April 2017 meeting and five to nearly seven weeks after the 6 September 2017 meeting.
The delays were even more pronounced in relation to the transcripts.
The Midland Magistrates' Court advised on 6 November 2017 that the transcript for the Second Conviction was available but it was not obtained until 6 February 2018, three months later and 10 months after Mr Kelly was instructed.
The Fremantle Magistrates' Court advised that the transcript for the First Conviction was available on 29 November 2017. Mr Kelly did not obtain it until 30 April 2018 - five months after it was available, and more than a year after he was instructed.
The delay in each case occurred in circumstances where, at the 12 April 2017 meeting, Mr Kelly told the client that obtaining the transcripts would be one of the first things he would do.
In these circumstances, we are satisfied and we find that Mr Kelly failed to obtain the transcripts in a timely manner, and notwithstanding some apparent confusion about whether the transcript for the First Conviction had or had not been provided, that he did not have any reasonable excuse for that failure.
Sub-ground 2(3)
This sub-ground alleges that Mr Kelly engaged in professional misconduct because he delayed in the preparation, filing and serving of affidavits in support of extensions of the time within which to appeal.
As noted above, Mr Kelly first emailed the client on 5 February 2018 to request information with which to prepare his affidavit, some 10 months after the initial meeting and five months after the September 2017 meeting.
The client responded the next day and yet each Appeal Notice was lodged more than 3 weeks later (28 February 2018) without an affidavit in support of the time extension.
As also noted above, when Mr Kelly had not responded to a previous letter from the Supreme Court dated 7 March 2018 by the relevant deadline, Archer J's Associate emailed Mr Kelly on 16 April 2018, reminded him (amongst other things) that an affidavit in support of an extension of time was required and required that it be filed by 1 May 2018 with a warning that the appeal may be dismissed if that did not occur.
In his cover letter of 1 May 2018 to the Registrar of the Supreme Court, under which Mr Kelly filed certified copies of the Prosecution Notices, transcripts and the certificates of service for the Appeal Notices, he noted that he was 'yet to file an affidavit in support of leave' and said that the client was 'working in the Pilbara and we would anticipate filing the affidavit within the next 14 days'.[86]
[86] Exhibit 1, pages 124 - 125.
On 15 May 2018 (i.e. upon the expiry of the 14 days within which Mr Kelly had said the affidavits would be filed) Archer J's Associate emailed Mr Kelly asking that the affidavit be filed 'so that this matter may progress, otherwise Her Honour may make orders dismissing the appeal'.[87]
[87] Exhibit 1, page 129.
Mr Kelly neither filed the affidavits nor otherwise responded to the email from Archer J's Associate. On 25 May 2018, Archer J ordered in respect of each appeal that the appellant file an affidavit in support of an extension of time by 15 June 2018, and further ordered that if that order was not complied with, then the appeal would be dismissed.[88]
[88] Exhibit 1, pages 134 - 135.
Mr Kelly took no action until 11 June 2018 when he emailed a draft affidavit for each appeal to the client and asked him (without mention of Archer J's orders requiring them filed by 15 June 2018) to send them back, signed and sworn, by express post.[89]
[89] Exhibit 1, pages 146 - 147.
The client responded by email on 11 June 2018 in which he stated that he 'was under the impression that this affidavit was completed and submitted back in early February after you asked me to email some details for the affidavit.' He also asked for a correction to the text of the affidavits regarding the collection of his vehicle after the First Charge.[90]
[90] Exhibit 1, page 148.
On 12 June 2018 Mr Kelly sent the amended affidavits to the client under cover of an email which simply stated 'Amended affidavits attached'.[91]
[91] Exhibit 1, page 151.
On Friday 15 June 2018, Mr Kelly emailed the client saying: 'Still waiting on the sworn affidavits. I'm keen to get this completed ASAP. Please forward to me'.[92] But despite that email, Mr Kelly himself swore an affidavit for each appeal on that day and filed them in the Supreme Court.[93]
[92] Exhibit 1, page 160.
[93] Exhibit 1, pages 152 - 159. It is not to the point of this Ground but in the hearing before Tottle J on 2 April 2019, after his Honour referred to an affidavit of Mr Kelly, Mr Pontré for the respondents confirmed that he did not have a copy of the affidavit: Exhibit 1, page 264. It would therefore appear that, despite filing them, Mr Kelly failed to serve a copy of his affidavits on the respondents.
On Monday 18 June 2018 the client emailed Mr Kelly in response to his 15 June 2018 email and said that he had been unable to get the affidavits 'signed' on the previous Saturday because there was no authorised person at the post office, but that he had taken time off work on the following Friday (i.e. 22 June 2018) to 'get this done'.[94]
[94] Exhibit 1, page 160.
Archer J made programming orders on 22 June 2018[95] – see below Sub‑ground 2(4). On the same day, the client swore his affidavits.[96]
[95] Exhibit 1, pages 162, 164.
[96] Exhibit 1, pages 167 - 174; 177; Exhibit 5, para 51.
There appears to have been a delay of a few days in the delivery of the sworn affidavits to Mr Kelly as, on 25 June 2018, the client emailed Mr Kelly advising that Australia Post needed a unit number for GTC's address to deliver the affidavits. Mr Kelly emailed back the unit number the same day.[97] Mr Kelly failed to tell the client that he had sworn and filed his own affidavits and about Archer J's 22 June 2018 orders.
[97] Exhibit 1, page 176.
On 29 June 2018, Mr Kelly caused the client's affidavits in support of an extension of time to be filed in the Supreme Court.[98]
[98] Exhibit 1, pages 167 - 174.
Put shortly, there is no evidence that Mr Kelly made any attempt to prepare an affidavit until 5 February 2018, some 10 months after he had first been instructed and five months after the September 2017 meeting. But even the process that commenced in February 2018 took until June 2018 to complete. He filed his own sworn affidavits on 15 June 2018 and the client's affidavits on 29 June 2018, some 14 months after he was first instructed.
There is nothing to support Mr Kelly's suggestion that these delays could be attributed to PLT students. At the very least, there is no mention of any other person at GTC working on the file save for Mr Kelly's email of 4 October 2017 to Ms TA to 'have a stab' at a first draft. Further, and in any event, it was for Mr Kelly to take the necessary steps to progress the appeal.
We are therefore satisfied and we find that there were substantial delays on the part of Mr Kelly in preparing and filing the affidavits, for which there is no reasonable excuse.
Sub-ground 2(4)
On 22 June 2018, Archer J made orders which included that within 14 days (i.e. 6 July 2018) 'the appellant [must] file and serve an entry for hearing' containing an estimated length of the hearing and a joint/common list of unavailable dates for the parties between June 2018 and December 2018 inclusive.[99]
[99] Exhibit 1, pages 162, 164.
On the same day of the orders, the respondent's solicitors (the State Solicitor's Office – SSO) emailed Mr Kelly advising of their unavailable dates.[100]
[100] Exhibit 1, page 165.
On 19 July 2018, Mr Kelly appears to have had a telephone conversation with Mr Pontré and said that he had not received the respondent's unavailable dates. That is contrary to the SSO email of 22 June 2018 referred to immediately above. But in any event, following the phone call, Mr Pontré emailed Mr Kelly and provided his unavailable dates again.[101]
[101] Exhibit 1, page 179.
By 14 August 2018, Mr Kelly still had not filed and served the entries for hearing and Mr Pontré emailed Mr Kelly his revised unavailable dates.[102]
[102] Exhibit 1, page 178.
On 15 August 2018, Mr Kelly forwarded Mr Pontré's email to a Ms SP who appears to have worked for GTC in some capacity.[103]
[103] Exhibit 1, page 178.
There is no evidence of any further action by Mr Kelly until 20 November 2018 when Mr Pontré again emailed Mr Kelly with his amended unavailable dates and stated that he was 'not aware as to whether the entry for hearing has gone to the court in this matter'.[104]
[104] Exhibit 1, page 181.
On 6 December 2018, a Supreme Court listings officer emailed Mr Kelly and the SSO referring to Archer J's orders of 22 June 2018, advised that an entry for hearing had not yet been filed, that the appeal could not be listed until that was done, and sought an explanation for the failure so that Archer J could be informed.[105] Mr Kelly did neither of those things.
[105] Exhibit 1, page 182. Mr Pontré replied to the listings officer's email 7 December 2018 and advised that the appellant 'has previously been provided with the Respondent's unavailable dates for the purpose of the appellant's compliance' with the order: Exhibit 1, page 184.
Strk J's Associate emailed Mr Kelly and Mr Pontré on 22 January 2019 to advise that the appeals had been listed for directions before her Honour on 1 February 2019 at 2.15 pm because of the appellant's failure to comply with Archer J's orders of 22 June 2018.[106] Strk J's Associate also emailed Mr Kelly and Mr Pontré on 31 January 2019 to remind them of the directions hearing the following day and to ask for appearances in advance.[107]
[106] Exhibit 1, pages 185 - 186.
[107] Exhibit 1, pages 188 - 189.
However, it was not until 1 February 2019, the date of the directions hearing, that Mr Kelly caused the entries for hearing to be filed for the Appeals.[108]
[108] Exhibit 1, pages 190 - 191.
In his letters to the LSCC of 30 June 2021[109] and 7 September 2021,[110] Mr Kelly stated that he had moved into a new role from 3 September 2018 'in which [his] sole duty was new client consults, at various locations' in suburbs of Perth which 'occupied all of [his] time' and that 'there were allocations of consults made which frequently did not allow for travelling time and placed unrealistic timeframes upon me'.
[109] Exhibit 1, page 343.
[110] Exhibit 1, page 350.
However, in a letter to the LSCC dated 8 October 2021, the Legal Practice Director of GTC stated that:
… we confirm that on or before 3 September 2018 Mr Kelly had moved into a role where his duty was to undertake new client consults in various location [sic]. However, advise that Mr Kelly had retained carriage of several of his files, one of which was [the client's] appeal. Matters which were not retained by Mr Kelly were referred to [Ms SC].[111]
[111] Exhibit 1, page 363.
Consistent with GTC's letter, and contrary to Mr Kelly's position, there is nothing before us - no correspondence, any file note or otherwise – which suggests that Mr Kelly no longer had the carriage of the client's file or that anyone else (whether Ms SC or otherwise) was involved with it. We are satisfied, and we find, that Mr Kelly continued to have conduct of the client's file at the relevant times.
Mr Kelly's response also speaks to his workload at the time. Even if we accept that he was under a very heavy load, the entry for trial required merely the correlation of unavailable dates with those of Mr Pontré, which were provided four times.
It took from 22 June 2018 to 1 February 2019 for Mr Kelly to undertake a very basic, almost administrative, task despite actions from Mr Pontré which should have reminded him of the need to act as well as several warnings from the Court. Accordingly, we are satisfied and we find that Mr Kelly failed, without reasonable excuse, to comply with the Orders of 22 June 2018 which required the filing of an entry for hearing.
Sub-ground 2(5)
Archer J's orders of 22 June 2018 also included that the appellant must file and serve an outline of submissions in support of the application for leave and the appeal itself not later than 28 days prior to the date of hearing.
Sub-ground 2(5) alleges that Mr Kelly committed professional misconduct by failing to comply with that order.
By email of 12 February 2019, Tottle J's Research Associate emailed Mr Kelly and Mr Pontré and, amongst other things, advised of the listing of the matters for hearing on 19 March 2019 and reminded the parties of the deadline for filing submissions as per Archer J's orders.[112]
[112] Exhibit 1, page 193.
Mr Kelly did not file and serve the appellant's submissions by the relevant deadline of 19 February 2019.
On 20 February 2019, Mr Pontré emailed Mr Kelly, stating that the submissions were due to be filed and served the previous day. He asked Mr Kelly when he could expect them.[113] When Mr Kelly did not respond, Mr Pontré emailed him on 25 February 2019 and asked when he could expect a response to his email of 20 February 2019.[114]
[113] Exhibit 1, page 196.
[114] Exhibit 1, page 196.
On 27 February 2019, Tottle J's Research Associate again emailed Mr Kelly and Mr Pontré and, having referred to his email of 12 February 2019, stated that the appellant was to file submissions by 19 February 2019 in accordance with the 22 June 2018 orders and asked that Mr Kelly provide an update by 5.00 pm that day.[115]
[115] Exhibit 1, page 197.
On 1 March 2019, Tottle J's Research Associate again emailed Mr Kelly and Mr Pontré and:
(a)confirmed the appellant's intention to file submissions in the week commencing 4 March 2019, referencing a conversation with Mr Kelly the previous day;
(b)stated that Tottle J required the appellant's submissions to be filed no later than 12.00 pm on 5 March 2019; and
(c)proposed that the respondent would file an outline of submissions by 5.00pm on Tuesday 12 March 2019 and asked Mr Pontré to confirm whether this would give the respondent sufficient time to do so.[116]
[116] Exhibit 1, page 198. Mr Pontré responded that afternoon, confirming that he had no difficulty with the timeframe: Exhibit 1, page 199.
Mr Kelly did not file and serve the submissions by 5 March 2019. Mr Pontré emailed him on 6 March 2019, stating that he was yet to receive the appellant's submissions, which were due the previous day. He asked Mr Kelly to advise when he might receive them.[117]
[117] Exhibit 1, page 201.
Mr Kelly finally filed the appellant's outline of submissions, which he signed, on 7 March 2019.[118] He did not serve them[119] and Mr Pontré was disadvantaged by having to file responsive submissions on 11 March 2019 without having seen the appellant's submissions.
[118] Exhibit 1, pages 208 and 213.
[119] Exhibit 1, pages 226 and 227.
In summary, the 22 June 2018 orders required Mr Kelly to file and serve the appellant's written submissions by 19 February 2019. That did not occur despite considerable intervention by Mr Pontré and Tottle J's Research Associate, to none of which Mr Kelly responded. Even when the submissions were filed, having failed to meet an extended deadline, they were not served.
Mr Kelly's explanation for the failure is the same as for Sub-ground 2(4) – that from 3 September 2018 he did not have carriage of the matter and, in any event, he was (effectively) overworked.
We previously held that we did not accept that Mr Kelly no longer had carriage of the matter and, while the drafting of submissions is more onerous than the filing of an entry for hearing, we do not accept that mere workload is an excuse for the delay. In that regard we note that the orders were in place from June 2018 and, as far as we can ascertain, nothing happened throughout that period such that the submissions could not have been prepared at any time during the intervening eight months, including prior to Mr Kelly's 'new' role from 3 September 2018.
Accordingly, we are satisfied, and find, that Mr Kelly had the conduct of this file at the relevant times, and that there is no reasonable excuse for failing to comply with the orders to file the submissions by the stated deadline and for failing to respond to correspondence from the Court and from Mr Pontré.
Does the conduct in Ground 2 constitute professional misconduct?
The ground alleges a failure to progress the appeals 'in a timely and competent manner'. It also alleges a failure to respond to and/or file documents in response to Court orders and correspondence.
In that way, the ground is concerned with delay and neglect. To the extent that the ground refers to competence, that is not a reference to the adequacy or otherwise of the legal advice given or submissions made but, rather, is concerned with, for example, the failure to file the Prosecution Notices, transcripts and affidavit in support of the application to extend time with the Appeal Notices.
In our view there is no doubt that undue delay and/or neglect can constitute professional misconduct.
Section 29A of the Legal Practitioners Act 1893 (WA) conferred jurisdiction on the relevant tribunal to find practitioners guilty of: illegal conduct; unprofessional conduct; or 'neglect, or undue delay, in the course of the practice of the law'. In Lacerenza[120] the Tribunal said that it had been unable to find any authority on the meaning of 'neglect' but the coupling of that term with delay 'suggests there will often be an overlap in the two concepts'. It also held that:
… the inquiry in the context of an allegation of neglect in the course of the practice of the law is not concerned with mere negligence, but requires consideration of whether an omission is of sufficient seriousness to warrant professional disciplinary action.
[120] Legal Practitioners Complaints Committee and Lacerenza [2006] WASAT 177 at [9] - [11].
Since then, the Tribunal has made several findings of professional misconduct on the basis of undue delay.[121] In Bower,[122] the Court of Appeal dismissed the practitioner's appeal against the Tribunal's findings which included findings of delay. The appeal appears to have proceeded with an apparent acceptance by the practitioner that undue delay could amount to professional misconduct. Certainly the Court did not suggest otherwise.
[121] See, for example, Legal Practitioners Complaints Committee and Lim [2006] WASAT 90; Legal Profession Complaints Committee and Bower [2017] WASAT 47.
[122] Bower v Legal Profession Complaints Committee [2018] WASCA 222.
The foregoing discussion of the various sub-grounds shows that Mr Kelly consistently, and without reasonable excuse, failed to comply with Court orders and correspondence from the Court, including the failure to file and serve documents that were necessary to progress the appeals. He failed to progress the appeals in a timely and competent manner.
The delay was, in most cases, very substantial indeed but not once did Mr Kelly seek to explain or apologise for that delay to the Court, Mr Pontré, or the client.
Throughout, Mr Kelly had conduct of, and the responsibility for, the client's matters. We have rejected his attempt to shift focus, if not blame, to others within GTC, including PLT students. Amongst other reasons, there is little to no evidence of any involvement by others in the conduct of the matters.
We accept the LSCC's submission (and we find) that Mr Kelly's failure to progress the appeals had the potential to significantly prejudice the client's interests, in circumstances where he advised Mr Kelly more than once that the appeals were necessary for his continued employment and that he was facing significant pressure at work in this regard. [123] Mr Kelly's failures to progress the appeals in a timely manner, and particularly his repeated failure to comply with court orders, especially without explanation or apology,[124] created a real and imminent risk of dismissal.
[123] Applicant's Submissions, 24 July 2024, para 70.
[124] Although it is not an element of the ground, and we have therefore not given it any weight in this regard, the failure to comply with Court orders and failure to respond to correspondence from the Court was also most disrespectful.
For these reasons we are satisfied, and we find, that the delay and/or neglect goes well beyond negligence. Indeed, it goes beyond unsatisfactory professional conduct and constitutes professional misconduct.
That is, we are satisfied and we find that the conduct in Ground 2 amounts to professional misconduct because it is conduct that:
(a)fell short, substantially and consistently, of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner: s 403(1)(a);
(b)'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': second limb of Kyle; and
(c)would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence: first limb of Kyle.
Grounds 3 and 4
Grounds 3 and 4 concern statements made in affidavits filed in support of the application to extend time. Ground 3 concerns the affidavits sworn by Mr Kelly and filed on 15 June 2018 while Ground 4 concerns the affidavits sworn by the client on 22 June 2018 and filed on 29 June 2018.
In each case the LSCC alleges that Mr Kelly engaged in professional misconduct by preparing, swearing (Ground 3 only) or causing to be sworn (Ground 4 only) and causing to be filed in the Supreme Court the relevant affidavits in circumstances where he knew they contained statements and/or representations that were false and/or misleading in material respects, and where he intended the Court to rely on those statements and/or representations.
In the alternative, the LSCC alleges that Mr Kelly was recklessly indifferent as to whether the statements and/or representations were false and/or misleading in material respects and as to whether the Court would be misled by the statements and/or representations.
As to Mr Kelly's own affidavits (Ground 3), the LSCC further, or alternatively, alleges that he did not give a full, frank, and candid account of all the facts and matters which were relevant, or potentially relevant, to the court's consideration of the delay in instituting the appeals.
Just as the grounds are (almost) identical, so too were the affidavits. By way of example, the first of the following two paragraphs is from Mr Kelly's affidavits while the latter is from the client's:
13.Following conviction, my client had intended to simply abide the respective Courts' decisions. However, some months later, it was made clear to him that following completion of my [sic] current rotation in the graduate programme with [Company name omitted], he will need to apply for a permanent position either internally or externally.[125]
13.Following conviction, I had intended to simply abide the respective Courts' decisions. However, some months later, it was made clear to me that following completion of my current rotation in the graduate programme with [Company name omitted], I will need to apply for a permanent position either internally or externally.[126]
[125] Exhibit 1, pages 154 and 158.
[126] Exhibit 1, pages 169 and 173.
Each paragraph is to the effect that it was only several months after the Convictions that the client decided to appeal them: the First Kelly Representation and the First Client Representation respectively (together, the First Representations).
The Second Kelly Representation and the Second Client Representation (together, the Second Representations) were to the effect that it was not until approximately 7 September 2017 that the client appreciated the potential adverse impact that the Convictions might have on his future employment, and it was at that time he decided to instruct Mr Kelly to appeal them. The relevant paragraphs of Mr Kelly's affidavits in this regard were as follows:
14.It is standard practice within the [name omitted] profession to undertake a National Police Check as part of pre-employment screening. Ordinarily, applicants who do not return a completely clear Police Clearance are excluded from consideration from employment.
15.What this effectively means is that he would not even be granted an interview for positions for which he has the requisite qualifications and experience.
16.This is of great concern to him as the current job market is saturated with [name omitted] graduates, thus he believes that in the absence of a clear Police Clearance, he is in peril of not being able to find ongoing employment in his profession at the completion of the graduate programme.
17.It was upon being advised of the need for a clear Police Clearance in pre-employment screening that I was instructed on 7 September 2017 to institute an appeal in the matters.[127]
[127] Exhibit 1, pages 154 and 158. The relevant paragraphs in the client's affidavits are at Exhibit 1, pages 140 and 144.
In Astley,[213] the QCAT found the practitioner had engaged in unsatisfactory professional conduct by failing to properly comprehend evidence which defeated a charge in a prosecution brought against a legal practitioner in circumstances where the evidence was brought to her notice four times. The Tribunal found:
The public is entitled to expect that a legal practitioner will properly read and appreciate the material relevant to their case and take steps promptly to deal with any errors brought to their attention. The failure to do so over 12 months, despite being alerted four times during that period, is a sufficiently substantial departure as to warrant characterisation as unsatisfactory professional misconduct [sic 'conduct'].[214]
[213] Legal Services Commissioner v Astley [2019] QCAT 274.
[214] Astley at [26].
In Pitsikas, the relevant Tribunal illustrated the difference by way of the following example:
… not knowing that a contract for the sale of land should be stamped as distinct from knowing that it should be stamped but not calculating the correct amount' wherein 'the former shows a lack of professional competence and diligence, whereas the latter may be mere negligence.[215]
[215] Quoted in Dal Pont, Lawyer Discipline, fn 93 to [2.27], page 40.
In our view, the conduct of the appeals by Mr Kelly constitutes unsatisfactory professional conduct.
In each of the sub-grounds, Mr Kelly was unaware of the basic legal requirements. That is, we are satisfied, and we find, in each case he suffered from a lack of basic legal knowledge per Moulton.
So, in sub-grounds one and three he appears to have been utterly unaware of the relevant legislative provisions governing the available grounds of appeal (sub-ground one) and the relevant criteria for the grant of a spent conviction (sub-ground three).
The result was that he drafted grounds of appeal which did not fall into one of the relevant categories prescribed by s 8 of the CA Act and he filed evidence that did not address the statutory criteria for the grant of spent convictions.
The same applies to sub-ground two, albeit that the criteria were contained in judicial precedent, rather than statutory provisions. He failed to identify the issues which the Court was required to determine and, therefore, the evidence he filed did not address several of those issues.
Significantly, it could not be suggested that any of the sub-grounds concern unusual, esoteric or obscure matters. It should be entirely uncontroversial that a practitioner commencing a criminal appeal should have regard to the CA Act, and similarly to the Sentencing Act in seeking a spent conviction. An application for the extension of time is also a common, garden variety, application.
We are, for these reasons, satisfied and we find that Mr Kelly's conduct in each case amounted to unsatisfactory professional conduct because it fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner: s 402.
Ground 9
The LSCC alleges that Mr Kelly engaged in professional misconduct from about 12 April 2017 to about 5 April 2019 because, in breach of r 8 and r 10(2) of the Conduct Rules, he failed to 'communicate candidly and in a timely manner' with the client in relation to the Appeals and/or did not 'take all reasonable and practicable steps to keep [the] client informed about all significant developments and generally about the progress of the matter'.
The LSCC relies upon the client's affidavit (Exhibit 5) and the lack of evidence of responses contained in the book of documents (Exhibit 1).
Mr Kelly did not respond to these allegations in his letters to the LSCC of 30 June 2021 and 7 September 2021.
We have already discussed much of the evidence that the LSCC refers to in its particulars in previous grounds. Nonetheless, we set out the particulars, albeit briefly, below.
Unless we say otherwise, we are satisfied that the LSCC has proved the facts alleged in each particular on the basis of the client's evidence that Mr Kelly failed to advise him of the relevant matter.
In reaching that state of satisfaction we have applied the rule in Jones v Dunkel[216] to infer that any evidence that Mr Kelly could have given would not have assisted him.[217]
[216] Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.
[217] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 at [34] - [35]. See, also, AA Shi Pty Ltd v Avbar Pty Ltd (No 5) [2010] FCA 971.
The first particular alleges that Mr Kelly failed to respond to phone calls from the client on 20 April 2017,[218] 18 May 2017,[219] 8 August 2017[220] and 19 January 2018.[221]
[218] Exhibit 5, paras 16 and 17; Exhibit 1, page 17.
[219] Exhibit 5, para 18; Exhibit 1, page 18.
[220] Exhibit 5, para 19; Exhibit 1, page 19.
[221] Exhibit 5, paras 29 and 30; Exhibit 1, page 65.
The second particular alleges that Mr Kelly failed to respond to emails from the client on 13 April 2018,[222] 31 July 2018, [223] 16 August 2018,[224] and 3 September 2018.[225]
[222] Exhibit 1, page 114; Exhibit 5, para 38.
[223] Exhibit 1, page 176; Exhibit 5, paras 56 - 57.
[224] Exhibit 1, page 180; Exhibit 5, paras 57 - 58.
[225] Exhibit 1, page 180; Exhibit 5, paras 58 59.
The third particular alleges that Mr Kelly failed to inform the client that he had filed the Appeal Notices on 28 February 2018:
(a)In his witness statement, the client referred to copies of the Appeal Notices filed on that day but did not say one way or another whether Mr Kelly communicated to him that they had been filed.[226]
(b)An email dated 13 April 2018 from the client to Mr Kelly describes the Appeal Notices as having been 'drafted on February 13th, and submitted to the courts on May 1st.[227]
(c)Plainly, the latter date is an error; perhaps it should have been 'March 1st', being the day after the date of lodging. The email also refers to a conversation 'on Tuesday', which we presume is 10 April 2018.
(d)On that basis it would appear, and we find, that Mr Kelly told the client that the Appeal Notices had been filed on about 1 March 2018 during their 'conversation' on 10 April 2018.
(e)There is nothing to suggest that Mr Kelly had advised the client previously. On that basis, it took him nearly six weeks to advise the client that the Appeal Notices had been filed.
[226] Exhibit 5, para 34.
[227] Exhibit 1, page 114.
The fourth particular alleges that Mr Kelly did not inform the client of correspondence from the Supreme Court, specifically: (1) the 7 March 2018 letters which advised that the appeals could not commence without copies of transcript and the Prosecution Notices; [228] (2) the emails of 16 April 2018 from Archer J's Associate sent, in effect, to follow up the letter of 7 March 2018;[229] and (3) the emails of 15 May 2018 from Archer J's Associate reminding of the need for an affidavit in support of the application to extend time.[230]
[228] Exhibit 1, pages 110 - 111; Exhibit 5, para [35].
[229] Exhibit 1, page 115; Exhibit 5, para [40].
[230] Exhibit 1, page 129; Exhibit 5, paras 41.2 and 42.
The fifth particular alleges that Mr Kelly also failed to inform the client of the Supreme Court orders made 25 May 2018 to the effect that if the affidavits weren't filed by 15 June 2018, the appeals would be dismissed.[231]
[231] Exhibit 1, pages 134 - 137; Exhibit 5, paras [43] and [44]. See, also, Mr Kelly's email to the client of 11 June 2018 which attaches the client's affidavits for swearing but which doesn't mention the orders: Exhibit 1, pages 146 - 147.
The sixth particular alleges that Mr Kelly did not inform the client of Archer J's provisional orders of 22 June 2018.[232]
[232] Exhibit 1, pages 161 - 164; Exhibit 5, para 53.
The seventh particular alleges that Mr Kelly did not inform the client of correspondence from the Court dated 6 December 2018 and Mr Kelly's associated failure to file an Entry for Hearing.[233]
[233] Exhibit 1, page 182; Exhibit 5, paras 60.1 and 61.
The eighth particular alleges that Mr Kelly did not inform the client of correspondence from the Court dated 22 January 2019 regarding the listing of the appeals for directions due to his failure to comply with the 22 June 2018 orders.[234]
[234] Exhibit 1, pages 185 - 186; Exhibit 5, paras 60.2 and 61.
The ninth particular alleges that Mr Kelly did not advise the client of the filing of the Entries for Hearing on 1 February 2019. The client's witness statement does not directly attest to this and there is no other evidence either way on this matter. Accordingly, we are not satisfied that the LSCC has proven this particular to the relevant standard.
The tenth particular alleges that Mr Kelly did not inform the client that, as per the email from Tottle J's Associate of 12 February 2019, the appeals had been listed for 19 March 2019.[235]
[235] Exhibit 1, pages 193 - 194; Exhibit 5, paras 60.3 and 61.
The eleventh and twelfth particulars allege that Mr Kelly did not tell the client that he had filed (late) the appellant's submissions[236] or that the respondent had filed submissions.[237]
[236] Exhibit 1, pages 202 - 214; Exhibit 5, paras 62.3 and 63.
[237] Exhibit 1, page 227; Exhibit 5, paras 62.4 and 63.
The thirteenth particular covers, to some extent, matters already addressed in other particulars in that it alleges that Mr Kelly failed to communicate at all with the client from 18 June 2018 (when he emailed the client to say he was still waiting for the client's sworn affidavits)[238] until 22 March 2019 (when he left a message on the client's phone to say that the appeal was listed for hearing that day).[239] The client's witness statement, which describes this period, is to the effect that Mr Kelly made no contact with the client between those dates[240] within which the sixth to twelfth particulars are covered, as are other failures including Mr Kelly's failure to advise of his failure to attend the hearing on 19 March 2019 and the associated failure to respond to the resulting correspondence.
[238] Exhibit 5, para 48.
[239] Exhibit 5, para 66.
[240] Exhibit 5, paras [48] - [66].
The fourteenth particular alleges that Mr Kelly failed to advise the client of the outcome of the hearing on 2 April 2019.[241]
[241] Exhibit 5, para 70.
Rather, on 8 April 2019 the client received an email from Ms SC advising that Mr Kelly appeared on his behalf on 2 April 2019, that the appeal was dismissed and the file would be closed.
It may be that Ms SC took that action following Mr Kelly's resignation from GTC on 5 April 2019.[242]
[242] Exhibit 1, page 344; Exhibit 2, page 5.
In his letter of 30 June 2021, Mr Kelly said that 'following conclusion of the hearing, [he] was advised the [he] required bed rest and he consequently repaired to bed for the next 5 days'.[243]
[243] Exhibit 1, page 344.
If that is correct, he should have, before 'repairing to bed' taken steps for the client to be advised of the result. To have another person advise the client in writing that he had lost his appeals, six days after the event, we find is a breach of the obligations in r 8 and r 10(2) of the Conduct Rules.
All but one of the particulars are made out. We are therefore satisfied and we find that Mr Kelly failed to communicate candidly and in a timely manner and failed to take all reasonable and practicable steps to keep the client informed about all significant developments and generally about the progress of the appeals.
Does the conduct in Ground 9 constitute professional misconduct?
The matters described above show a consistent and persistent failure to keep the client informed over a period of nearly two years.
In Waters,[244] which concerned a not dissimilar set of circumstances, the Full Bench said as follows in explaining its decision to strike Mr Waters' name from the roll:
The agreed facts and findings also evidence the practitioner's sustained reluctance to communicate with his client in a candid and timely manner. Timely communication is a fundamental pillar of the relationship between practitioner and client, reflected in rules 8 and 10 of the Legal Profession Conduct Rules 2010 (WA). The practitioner's failure to provide adequate responses to Mrs and Mr H's numerous telephone calls and emails is a serious breach of his professional duty. The practitioner also disregarded his statutory duty to notify his client, as soon as practicable, that her matter had been placed on the Inactive Cases List. As the Tribunal noted, litigation is stressful. It is especially stressful for those not trained in the law and civil procedure, and every client is entitled to expect that they will be kept apprised of the progress of their litigation. Clients, fellow practitioners or the courts cannot have any confidence in a legal practitioner who is unable to fulfil this basic responsibility.
[244] Legal Profession Complaints Committee v Waters [2015] WASC 141 at [11]. Internal citations omitted.
The same may be said in this case. Mr Kelly's conduct involved a sustained failure to engage with the client over a period of nearly two years, which had the serious consequence of concealing delays, errors, and oversights by Mr Kelly in preparing and progressing the appeals.
For these reasons, we are satisfied, and we find, that with respect to Ground 9, Mr Kelly's conduct is properly charaterised as professional misconduct because it:
(a)would 'justify a finding that the practitioner is not a fit and proper person to engage in legal practice': s 403(1)(b);
(b)'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': the second limb of Kyle; and
(c)would be reasonably regarded as disgraceful and dishonourable by practitioners of good repute and competence: first limb of Kyle.
Ground 10
The LSCC alleges that Mr Kelly engaged in professional misconduct between 31 July 2020 and 11 October 2021 arising from his failures to respond, or to respond adequately, to its request for submissions –sub‑ground 10(1) – and to its Summons: sub-ground 10(2).
Sub-ground 10(1)
We have previously referred to the LSCC's 9 July 2020 letter to Mr Kelly.
It provided detailed particulars of the allegations against Mr Kelly, advised him of his right to make submissions about the conduct under investigation, and requested that Mr Kelly do so by 4.00 pm on Friday 31 July 2020 saying that his 'submissions should include such facts and explanations as will enable the [LSCC] to give proper consideration to the matter'.[245]
[245] Exhibit 1, pages 318 - 324.
Mr Kelly did not provide his submissions by that date.
On 22 September 2020, two Law Complaints Officers of the LSCC telephoned Mr Kelly, who confirmed receipt of the letters sent to him, but said that 'he had been very busy and trying to respond but would like advice and more time'. Mr Kelly asked for three weeks to respond, which the officers agreed to, i.e. by 13 October 2020.[246]
[246] Exhibit 1, page 326.
In a telephone call on 14 October 2020, Mr Kelly advised that he had been in a car accident on 25 September 2020. The LSCC agreed to extend the deadline for responding until 4 November 2020.[247]
[247] Exhibit 1, page 327.
Mr Kelly did not provide his submissions by that date. That was noted in an email from the LSCC of 23 November 2020 which asked that he respond by Friday 27 November 2020.[248]
[248] Exhibit 1, page 329.
The following day, 24 November 2020, Mr Kelly spoke with an LSCC officer and advised that he had been involved in a second car accident. The officer agreed to a further extension of two weeks, until 8 December 2020.[249]
[249] Exhibit 1, page 328.
Mr Kelly did not provide his submissions by that date.[250]
[250] Exhibit 1, page 330.
The LSCC alleges that Mr Kelly's failure to provide it with submissions as described above breached r 50(2) and/or r 50(3) of the Conduct Rules which provided that:
(a)a practitioner must be 'open and candid in his or her dealings' with the LSCC; and
(b)a practitioner requested to 'provide comments or information' by their regulator must provide 'in writing a full and accurate written account of [their] conduct' within a reasonable time and in any event within 14 days.
Mr Kelly has given no explanation for his failure to provide the submissions save for his reference to the two car accidents. But in that regard, we note that he provided no corresponding evidence of those accidents, no medical evidence, nor an adequate explanation as to how his car accidents in September and October 2020 resulted in his being unable to respond by December 2020.[251]
[251] A file note of 14 January 2021 recording a 'phone conversation with Mr Kelly says that in the car accidents he had 'hurt his left shoulder and left hand and has to have surgery': Exhibit 2, page 7.
In the absence of any of that evidence or explanation, we are satisfied, and we find, that his failure to provide the submissions requested by 8 December 2020, that deadline being the result of extensions of the original deadline of 31 July 2020, was a breach of both r 50(2) and r 50(3) of the Conduct Rules.
Sub‑ground 10(2)
By a letter dated 9 April 2021, the LSCC stated, in effect, that due to Mr Kelly's failure to respond to previous requests for submissions, it had issued a Summons to Provide Written Information (Summons), which was enclosed and which required compliance by 23 April 2021.[252]
[252] Exhibit 1, pages 330 - 332.
By the Summons, the LSCC required Mr Kelly to provide the written submissions requested by the 9 July 2020 letter.
This sub-ground alleges that Mr Kelly failed to respond to the Summons by the deadline of 23 April 2021. It also alleges that Mr Kelly's letters of 30 June 2021 and 7 September 2021 were inadequate responses to the Summons in that he did not provide such facts and explanations as would enable the LSCC to give proper consideration to the matters referred to in the 9 July 2020 letter and did not provide a full and accurate account of his conduct.
Although there is nothing before us that positively states that Mr Kelly did not comply with the Summons by 23 April 2020, we are satisfied and we find that that is the case.
Specifically, we infer that is so from Mr Kelly's 30 June 2021 letter,[253] in which he referred to the LSCC's 20 July 2020 letter,[254] which contained the request for submissions. Mr Kelly's letter of 30 June 2021 made no reference to either the Summons or any previous response by Mr Kelly to it.
[253] Exhibit 1, page 344.
[254] We have previously held that Mr Kelly's reference in that letter to a letter of 20 July 2020 was in error and that it was, in fact, a reference to the LSCC's 9 July 2020 letter. Amongst other things, we draw that inference because Mr Kelly's letter used the same paragraph numbers as the LSCC's 9 July 2020 letter.
As to the allegation that Mr Kelly's 30 June 2021 letter did not provide such facts and explanations as would allow the LSCC to give proper consideration to the relevant matters, we note that although Mr Kelly admitted paragraph 1 of the allegations (undue delay in filing the appeal notices), he 'did not admit' paragraphs 2 through to 10 and 19 and 'reserve[d] the right to respond in detail in future'. For paragraphs 11 and 12, 14 to 16 and 18 he stated 'Likewise'. His response to paragraph 20 was similar, but the allegation was denied.
His response to the allegations that he misled Tottle J at the hearing on 2 April 2019 was confusing: he did not admit the allegations, 'vehemently' denied any allegation that he had 'sought to mislead the Court in any way' and gave a 'personal explanation' as to his workload which had left him in 'a very poor condition' and said that he was unwell on the day of the hearing.
As previously noted, under the heading 'Conclusion' Mr Kelly apologised for his delay in responding but referred to his motor vehicle accident injuries. He then advised that he wished to obtain counsel's assistance and, accordingly, 'reserved [his] position'.
We are satisfied and we find that Mr Kelly's 30 June 2021 letter did not provide sufficient facts or information to enable the LSCC to properly consider his position concerning the matters raised in its 9 July 2020 letter. Mr Kelly was given plenty of opportunity to do so, and indeed, he took nearly a year to respond to the letter, and was more than two months after the Summons' deadline. Yet, his responses did little more than not admit the allegations and reserve the right to respond later, while blaming his workload and citing health issues without providing any evidence in support.
On 5 August 2021, the LSCC wrote to Mr Kelly and stated, amongst other things, that Mr Kelly's 30 June 2021 letter did not comply with the Summons and conveyed that his responses were inadequate and did not comply with r 50(2) and r 50(3) of the Conduct Rules. The letter asked Mr Kelly to advise his intentions and to provide a specific timeframe for responding to the allegations in full. It also asked Mr Kelly to explain why he said he had not had a sufficient opportunity to seek assistance from counsel, and the steps he had taken to obtain that assistance. The letter requested a response from Mr Kelly by 11 August 2021.[255]
[255] Exhibit 1, pages 345 - 347.
There is no evidence of any response or attempt to contact the LSCC until Mr Kelly's 7 September 2021 letter, the content of which has been described elsewhere in these reasons with respect to other Grounds.
By way of summary (and at the risk of unnecessary repetition) Mr Kelly again responded to each paragraph, providing some more detail:
(a)As to para 1, he repeated his admission that he had delayed in filing the Appeal Notices but said that, although he met the client on 12 April 2017, he was not formally instructed until 7 September 2017;
(b)As to para 2, he asserted that the Appeal Notices 'did specify a ground of appeal' although he acknowledged an imperfect recollection. In doing so he did not address the alleged failure to specify a ground of appeal within s 8 of the CA Act;
(c)As to para 3, he admitted that he had filed the Appeal Notices without an application for the extension of time but said that it was not unusual to do so. He also agreed that the transcripts and Prosecution Notices were not filed with the Appeal Notices but blamed delays on excessive delegation of tasks in the GTC office to PLT students;
(d)His response to each of paras 4 to 12 and 18 was an admission to the 'substance of the allegation' and a repeat of his previous complaint about 'excessive delegation' to PLT students;
(e)To para 13 (failing to respond to Tottle J's Associate regarding the failure to file submissions) he said that he did not have the conduct of the client's file on 22 February 2019. To paras 14 – 16 (failing to file the appellant's submissions, and failure to serve the affidavit and the submissions, respectively) he said 'likewise';
(f)To para 17, he said that he had missed the hearing on 19 March 2019 because GTC administration staff had not diarised it for him;
(g)His response to para 19 (failing to provide sufficient/adequate evidence in support of the appeals) refers to the state of the file '[u]pon learning of the impending hearing on 2 April 2019', which he says didn't allow him 'adequate time to draft any affidavit material, nor character references'. Of course, those tasks should have been caried out well prior to that point and, indeed, the affidavits which were the subject of criticism by Tottle J had been filed in June 2018;
(h)As to para 20, which alleged that the appeals had no reasonable prospects of success, he gave a spirited defence of his expertise in spent conviction matters;
(i)Finally, as to the allegation that he had misled Tottle J on 2 April 2019, he said that if his statement to the Court was inaccurate, 'it was not wilfully uttered' and reflected his 'physical condition on the day'; and
(j)He ended the letter by agreeing that there were unacceptable delays in progressing the appeals, for which he ultimately accepted responsibility but again referred to the 'culture' within GTC which included heavy workloads.[256]
[256] Exhibit 1, pages 348 - 352.
We are satisfied and we find that Mr Kelly's letter of 7 September 2021 failed to provide such facts and explanations as would allow the LSCC to properly consider the matters referred to in its 9 July 2020 letter which was then 'picked up' by the Summons. We do so for the following reasons.
First, his admission in paragraphs 4 to 12 and 18 to 'the substance of the allegation' falls short of the level of candour required, which requires a 'full and accurate account' of his conduct. In none of those paragraphs does he give an account of his conduct at all, let alone a full and accurate one.
And while an admission might be seen as consistent with the obligation of candour, even there Mr Kelly falls short, limiting the admission to the 'substance' of the allegation, without identifying what is meant by that term, which on its face leaves at least some of the allegation beyond its scope.
Secondly, as to the response to para's 13-16, his answers allege that he did not have carriage of the file in late February 2019 (para 13), early March 2019 (para 14), and June 2018 (para 15). It is self-evident that he had carriage of the file in February and March 2019 because, amongst other things, he filed the entry for hearing for each appeal on 1 February 2019 and the client's submissions on 7 March 2019. Further, para 13 alleges a failure to respond to the Associate's email and paras 15 and 16 allege a failure to serve documents already filed. We are satisfied, and we find, that the answers to these paragraphs fall entirely short of what was required.
The third reason is set out in our brief discussion as to his response to para 19: above, at para 416 (g).
For these reasons, we are satisfied and we find that Mr Kelly failed to comply with the Summons by the relevant deadline and that he failed to provide such facts and explanation as would enable the LSCC to properly consider to the matters raised.
He therefore breached r 50(2) and r 50(3) of the Conduct Rules: he was not open and candid with the LSCC and did not respond to a request from the LSCC to provide comments or information within the prescribed time, which time limit we find was reasonable.
He also therefore breached s 520(5) of the LP Act which requires a practitioner to comply with a summons.
He also breached s 532(3) of the LP Act which provides that an Australian lawyer subject to a requirement under s 520 must not, without reasonable excuse, fail to comply with the requirement.
We adopt without repeating it the Tribunal's discussion of the meaning of 'reasonable excuse' in this context in Lourey.[257]
[257] Lourey at [177] - [181].
Mr Kelly only addressed the reasons for his delay in responding to the Summons in his letter of 30 June 2021; his 7 September 2021 letter is entirely silent on the matter.
His 30 June 2021 letter includes, as we have said, an apology for the delay and a brief statement referring to 'certain personal issues – not least of which are significant spinal and shoulder injuries sustained in two motor vehicle accidents … on 25 September 2020 and 15 October 2020'.[258]
[258] Exhibit 1, page 344.
But as we have previously held, there is no corroborating evidence of the accident, no medical evidence attached in support of the claim that the accidents occurred and, therefore, none explaining how those accidents precluded him from responding to a Summons issued on 9 April 2021, nearly six months after the later accident.
Does the conduct in Ground 10 constitute professional misconduct?
As the Tribunal noted in Lourey, there has long been a requirement for lawyers to provide information and assistance to their statutory regulator in its investigations of the lawyer's conduct, which is, more recently, set out in s 520(5) and s 532(3) of the LP Act and r 50 of the Conduct Rules.[259] Amongst other things, in Lourey the Tribunal agreed with the finding of the NSW Administrative Decisions Tribunal in Sullivan that the 'disregard of a clear statutory direction from one's professional association indicates, in the Tribunal's view, prima facie unfitness to practice'.[260]
[259] Lourey at [237] - [241]. See, also, Legal Practitioners Complaints Committee and Richardson [2006] WASAT 251 at [54].
[260] Lourey, at [241] citing Law Society of New South Wales v Sullivan [2000] NSWADT 167 at [79] - [80].
We are therefore satisfied and we find that Mr Kelly's conduct with respect to this Ground constitutes professional misconduct because it:
(a)fell substantially short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner: s 403(1)(a);
(b)would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence: first limb of Kyle.
(c)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': second limb of Kyle; and
Conclusion
For the reasons outlined above, we are satisfied, and we have found, that Mr Kelly engaged in:
(a)unsatisfactory professional conduct within the meaning of s 402 of the LP Act with respect to Ground 8;
(b)professional misconduct within the meaning of s 403(1)(a) of the LP Act and both limbs of Kyle with respect to Grounds 1, 2, 5 and 10; and
(c)professional misconduct within the meaning of s 403(1)(b) of the LP Act and both limbs of Kyle with respect to Grounds 3, 4, 6, 7 and 9.
Orders
We will hear from the parties as to their preferred wording of orders to reflect those findings and for the facilitation of a hearing as to penalty and costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
PN
Associate to Deputy President Judge Jackson
22 NOVEMBER 2024
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