LEGAL SERVICES AND COMPLAINTS COMMITTEE and KHOSA - [2023] WASAT 90

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION:   LEGAL SERVICES AND COMPLAINTS COMMITTEE and KHOSA [2023] WASAT 90
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
MR D AITKEN, SENIOR MEMBER
MR R POVEY, MEMBER

HEARD:   20 – 24 March 2023
DELIVERED          :   5 OCTOBER 2023
FILE NO/S:   VR 159 of 2017
BETWEEN:   LEGAL SERVICES AND COMPLAINTS COMMITTEE
Applicant
AND
MANRAJ SINGH KHOSA
Respondent

Catchwords:

Vocational regulation – Legal practitioner – Allegations of professional misconduct – Allegation of failure to pay counsel's fees – Allegations of false or misleading representations – Allegation of failure to respond to requests for information and documents – Findings of professional misconduct

Legislation:

Interpretation Act 1984 (WA), s 37(1)(d), s 38
Legal Profession Act 2008 (WA), s102, s 104, s 402, s 403, s 403(1)(a), s 403(1)(b), s 428(1), s 438, s 438(1), s 520, s 520(1), s 520(1)(a), s 520(1)(c), s 520(5), s 531, s 531(2), s 532(3), s 532(3)(a), s 532(3)(b)
Legal Profession Conduct Rules 2010 (WA), r 4(2), r 26, r 50, r 50(3)
Legal Profession Uniform Law Application Act 2022 (WA), s 260(a)
State Administrative Tribunal Act 2004 (WA), s 9, s 32, s 39(1)
State Administrative Tribunal Rules 2004 (WA), r 39B(5)

Result:

The practitioner engaged in professional misconduct.

Category: B

Representation:

Counsel:

Applicant	:	Mr AJ Musikanth SC & Mr C Beetham & Mr FX Hall
Respondent	:	No Appearance

Solicitors:

Applicant	:	Legal Services and Complaints Committee
Respondent	:	No Appearance

Cases referred to in decision(s):

Arevalo v Fallows [1992] WASC 714
Aurora Construction Materials Pty Ltd v Victorian WorkCover Authority [2017] VSC 573
Badran v Public Transport Authority of Western Australia [2017] WASCA 28
BHP Billiton Ltd v Dunning [2013] NSWCA 421
Damberg v Damberg (2001) 52 NSWLR 492
Fidock v Legal Profession Complaints Committee [2013] WASCA 108
Gandini v Legal Profession Complaints Committee [2013] WASCA 168 (S)
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Kyle v Legal Practitioners' Committee [1999] WASCA 115; (1999) 21 WAR 56
Law Society of New South Wales v Youssef [2018] NSWCATOD 187
Legal Profession Complaints Committee and Chang [2019] WASAT 67
Legal Profession Complaints Committee and Goldsmith [2022] at WASAT 43
Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43 (S)
Legal Profession Complaints Committee and Khosa [2015] WASAT 107
Legal Profession Complaints Committee and Khosa [2015] WASAT 107 (S)
Legal Profession Complaints Committee and Lee-Steere [2010] WASAT 189
Legal Profession Complaints Committee v Lourey [2022] WASCA 114
Legal Services and Complaints Committee and Bostock [2022] WASAT 100
Legal Services and Complaints Committee and Lourey [No 2] [2023] WASAT 77
Re Robb (1996) 134 FLR 294
Re Veron; Ex parte Law Society of New South Wales [1966] 1 NSWR 511
Russo v Legal Services Commissioner [2016] NSWCA 306
Shand v Doyle [1997] ANZ ConvR 134
Taikato v The Queen (1996) 186 CLR 454
Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202
Western Australian Planning Commission v the Board of Valuers [2018] WASCA 145
Westgem Investments Pty Ltd In Its Own Right As Trustee For Hossean Pourzand And Jenny Maria Pourzand Atf The Helen Trust v Commonwealth Bank of Australia Ltd [No 5] [2019] WASC 310
Wilson v McDonald [2009] WASCA 39

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant, by referral under s 428(1) of the Legal Profession Act 2008 (WA) (LP Act), seeks findings of professional misconduct and consequential orders against the respondent (practitioner) pursuant to s 438 of the LP Act.
The applicant alleges three grounds (Grounds) against the practitioner, the first two of which are concerned with the alleged failure to pay counsel's fees and the associated conduct of the practitioner, including allegations that he made false and/or misleading representations, while the third is concerned with the alleged failure of the practitioner to appropriately respond to requests for information and documents made by the applicant as part of its investigations.
In each case, the applicant alleges that the practitioner engaged in professional misconduct in three distinct senses.
For the reasons that follow, we are satisfied that with one exception, in each case, and in each sense, the Ground is made out and the practitioner is guilty of professional misconduct.
We will hear from the parties as to the orders that ought to be made to give effect to these reasons and as to the questions of penalty and costs.

Outline of Factual History and Overview of Allegations

The practitioner was, from 1 November 2012 to 30 June 2015, the sole legal practitioner director of an incorporated legal practice (ILP) trading as Angove Law (Angove).[1]
[1] Minute of Proposed Substituted Annexure A dated 30 January 2023 (Substituted Annexure A), para 2.1; Response to Applicant's Substituted Annexure A dated 11 January 2018 (sic – 2019) (Response). By Order 1 made 27 February 2023, the applicant was given leave to rely on Substituted Annexure A and service, by Order 2, of it was dispensed with. Substituted Annexure A makes some changes to the Grounds. These are shown marked-up in para 133 below.
From August 2013 until March 2014, the practitioner acted for Rosebridge Nominees Pty Ltd (client) in Supreme Court proceedings CIV 1235 of 1999 (Proceedings).[2]
[2] Substituted Annexure A, para 3; Response, para 3.
In or about 27 August 2013, Angove entered into a costs agreement with the client (Costs Agreement) as part of which a fee estimate was given that the overall legal costs, including counsel's fees as disbursements payable by the client under the Costs Agreement, was likely to be in the order $125,000.[3]
[3] Substituted Annexure A, para 4; Response, para 4.
On the same day that the Costs Agreement was entered into, the client deposited $7,500 into Angove's trust account.
In early October 2013, the practitioner briefed Senior Counsel to appear on behalf of the client in the Proceedings and the practitioner asked the client to deposit $250,000 into Angove's trust account.[4]
[4] Substituted Annexure A, paras 5 – 6; Response, paras 5 – 6.
On around 10 October 2013, the client deposited $75,000 into Angove's trust account.[5] A few days later, on 14 October 2013, the client authorised the withdrawal and disbursement of monies held in Angove's trust account for the payment of any invoices rendered by Angove or counsel.[6]
[5] Substituted Annexure A, para 7; Response, para 7.
[6] Substituted Annexure A, para 8; Response, para 8.
Mr B was engaged by Angove to act as junior counsel for the client in the Proceedings pursuant to an offer of retainer dated 18 October 2013. The practitioner signed that retainer on 14 November 2013 in his capacity as Angove's sole legal practitioner (Retainer).[7]
[7] Substituted Annexure A, para 10; Response, para 10.
The Retainer provided, as is commonly the case, that Angove was to be liable for the payment of all Mr B's invoices 'even if' Angove had 'not received funds from [the] client to pay the bill'.[8]
[8] Substituted Annexure A, para 11; Response, para 11.
On 18 October 2013, Mr B also provided Angove with his costs disclosure, in which he estimated that his fees in the proceeding would be between approximately $135,000 and $180,000.[9]
[9] Substituted Annexure A, para 13; Response, para 13.
Mr B issued several invoices for the work carried out:
(a)on 30 October 2013 he issued an invoice for $24,472.80 (October Invoice);[10]
(b)on 2 December 2013 he issued an invoice in the amount of $58,018.95 (November Invoice);[11]
(c)on 24 December 2013 he issued an invoice in the amount of $34,882.65 (December Invoice);[12]
(d)on 31 January 2014 he issued an invoice in the amount of $48,648.60 (January Invoice);[13]
(e)on 28 February 2014 he issued an invoice in the amount of $6,598.35 (February Invoice).[14]
[10] Substituted Annexure A, para 19; Response, para 19. A copy of the October Invoice is at Legal Profession Complaints Committee Book of Documents, dated 16 July 2018 (Exhibit 1) pages 505 – 509.
[11] Substituted Annexure A, para 26; Response, para 26. A copy of the November Invoice is at Exhibit 1, pages 499 – 504.
[12] Substituted Annexure A, para 28; Response, para 28. A copy of the December Invoice is at Exhibit 1, pages 519 – 524.
[13] Substituted Annexure A, para 33; Response, para 33. A copy of the January Invoice is at Exhibit 1, pages 514 – 518.
[14] Substituted Annexure A, para 35; Response, para 35. A copy of the February Invoice is at Exhibit 1, pages 510 – 513.
At no time were any additional funds paid by the client into Angove's trust account.
Two payments were made by Angove to Mr B in part payment of his invoices. On around 29 November 2013 Angove paid Mr B $7,000[15] and on around 18 December 2013 it paid Mr B $5,000.[16]
[15] Substituted Annexure A, para 22; Response, para 22.
[16] Substituted Annexure A, para 27; Response, para 27.
On each date the entirety of the Angove invoice was paid.[17] Indeed, at all times since the deposit into the trust account on 10 October 2013 the practitioner caused each Angove invoice to be paid in full when due.[18]
[17] Substituted Annexure A, paras 22.4 and 27; Response, paras 22 and 27.
[18] Substituted Annexure A, para 29; Response, para 29.
Further, on 29 November 2013, the practitioner emailed Mr B in relation to the part payment of $7,000. The email said:
I confirm that a part payment of $7,000 was made via EFT on your invoice. I had reached the payment limit for the day.
I will attend to the outstanding balance next week.[19]
[19] Substituted Annexure A, para 23; Response, para 23.
The balance of Mr B's invoices, including those invoices sent after 29 November 2013, were never paid.
Ground 1 is, broadly framed, that the practitioner failed to pay Mr B's invoices in circumstances which included the preferential payment of Angove's invoices ahead of those of Mr B and/or that the email of 29 November 2013 made a representation that was false or misleading (or both), given that at the time it was sent there were insufficient funds to pay the balance of Mr B's invoice.
Mr B terminated the Retainer on or around 20 March 2014.[20]
[20] Substituted Annexure A, para 37; Response, para 37.
On 28 April 2014, Mr B wrote to the practitioner alleging that his outstanding fees at that stage were $160,621.35.[21] He also took further steps in an effort to secure payment of his outstanding fees, including obtaining a certificate of taxation from the Supreme Court.[22]
[21] Substituted Annexure A, para 39; Response, para 39.
[22] Exhibit 1, page 179.
On 4 June 2015, Mr B's solicitors (Nova Legal) demanded payment from Angove for the outstanding fees of $137,815, which was the taxed amount minus the sum of $12,000 which had previously been paid, plus interest.[23]
[23] Exhibit 1, page 216.
On 15 June 2015, Nova Legal demanded that the practitioner provide a payment plan in respect of the outstanding fees by no later than 17 June 2015.[24]
[24] Substituted Annexure A, para 66; Response, para 67. Exhibit 1, page 223.
On 16 June 2015, the practitioner called the Legal Practice Board of Western Australia (LPBWA) and made an appointment to speak to Ms Fulham, the LPBWA's Executive Director.[25]
[25] Witness Statement of Elizabeth Rose Alison Fulham dated 13 March 2020 (Exhibit 8), para 5.
On 17 June 2015, the practitioner, his wife, Ms Fulham and Mr Mylotte (also of the LPBWA) all attended the meeting arranged on the previous day.[26] On that day, the practitioner also lodged an application with the Australian Securities and Investment Commission (ASIC) to incorporate a new company – Law on Newcastle Pty Ltd (LoN).[27]
[26] Exhibit 8, para 4; Witness Statement of Tony Mylotte dated 10 March 2020 (Exhibit 9), para 6.
[27] Exhibit 1, pages 442 – 443.
On 19 June 2015, the practitioner opened a bank account with ANZ Bank under the name 'Law on Newcastle Pty Ltd Law Practice Trust Account'.[28]
[28] Exhibit 1, page 569.
On 23 June 2015, the practitioner filed with the LPBWA a Form 7 Notice of a Corporation's Intention to Provide Legal Services (Form 7) by which notice was given that LoN would provide legal services.[29]
[29] Exhibit 1, pages 567 – 569.
On 9 July 2015, the practitioner filed with the LPBWA a Form 9 Notice of Cessation of Legal Practice by a Former Incorporated Legal Practice (Form 9) by which notice was given that Angove would cease providing legal services.[30]
[30] Exhibit 1, pages 570 – 585.
In each of the Form 7 and the Form 9, the practitioner answered questions to the effect that Angove's practice was not being taken over by LoN.
Ground 2 is, broadly framed, that the practitioner attempted to avoid Angove's liabilities to Mr B by 'deriving' the new practice of LoN from the existing practice of Angove and that, as part of that attempt, he made false and/or misleading representations in both the meeting on 17 June 2015 and in the Form 7 and Form 9 as to Angove's solvency and as to the reality that Angove's practice was taken over by the new legal practice of LoN.
Mr B complained to the applicant about the practitioner's failure to pay his fees. As part of its investigation into that complaint, and in relation to its investigation into matters which subsequently arose, the applicant requested that the practitioner provide information and documents. It also issued summonses to the same effect.[31]
[31] Exhibit 1, pages 245 – 246.
Ground 3 is that the practitioner failed, in relation to five distinct requests and summonses and without reasonable excuse, to respond within an appropriate time period to those requests and summonses.

Procedural history

The applicant's referral of this matter was lodged with the Tribunal in August 2017.
In November 2019, the Tribunal provisionally listed the matter for final hearing of three days commencing on 25 March 2020. By orders made 25 February 2020 those hearing dates were confirmed.
The hearing dates were vacated on 17 March 2020, a mere week prior to the listed final hearing, following the filing of documents by the practitioner just prior to that date, which appear to have taken the applicant by surprise.
Following a lengthy series of interlocutory skirmishes regarding that late-filed material, the matter was, on 5 July 2022, relisted for a final hearing for a duration of five days from 20 March 2023.
There were various other events that occurred between July 2022 and February 2023, which it is unnecessary to relate.
On Thursday 23 February 2023, ahead of a directions hearing listed for Monday 27 February 2023, the practitioner advised by email to the applicant that he would seek orders at the forthcoming directions hearing vacating the dates for the final hearing. He attached a draft affidavit setting out his 'personal circumstances' which were said to have 'changed' and which would form the factual basis for the forthcoming application.
The applicant indicated that such a course would be opposed, following which the practitioner filed with the Tribunal (early on the morning of Monday 27 February 2023) a minute of proposed orders and an affidavit sworn Sunday 26 February 2023 which set out in some detail his responsibilities as a carer for his parents‑in‑law, his obligations to study pursuant to his mutual obligations as a recipient of welfare payments and a description of his injuries received in a car accident in 2020, which were said to make it impossible for him to prepare for and attend the hearing on the listed dates.
By orders made 27 February 2023 President Pritchard, amongst other things, provided the practitioner with the opportunity to file and serve any further affidavit on which he wished to rely in support of his application to adjourn.
The application to adjourn was heard on Wednesday 8 March 2023. The President dismissed the application and gave extensive ex tempore reasons.
In light of what happened almost immediately after that date, it is necessary to note that in her Honour's reasons, the President addressed in some detail the question of the practitioner's medical condition and its impact on his ability to prepare for and attend at the hearing.
In particular, her Honour described as the third reason relied upon by the practitioner for the application to adjourn that he was 'involved in a car accident in 2020 and that, as a result, has been unable to move with speed and unable to work continuously since that time'.[32]
[32] ts 32, 8 March 2023.
In dismissing this aspect of the application, her Honour said that the 'difficulty' with the evidence relied upon by the practitioner was that at that stage the matter had been listed for a final hearing since July 2022 but in the course of his exchange with her Honour, the practitioner had acknowledged that he had, in effect, left the bulk of the preparation for the final hearing to the months of January and February 2023. Her Honour described that as, in effect, a conscious decision not to prepare ahead of time in circumstances where the practitioner had effectively assumed that nothing would change so as to impede that preparation, notwithstanding that he was aware of what he said were his physical limitations to prepare.
On Thursday 9 March 2023, the practitioner obtained a medical certificate under the letterhead of a suburban medical practice in the following terms:
Medical Certificate
09/03/2023
THIS IS TO CERTIFY THAT
Mr Manraj Khosa has a medical condition and will be unfit for work from 09/3/2023 to 24/3/2023 inclusive.
Dr [redacted]
That is, by a certificate obtained the day after the practitioner was refused his application to vacate the hearing dates on grounds that included his medical state, he obtained a medical certificate that said he was unfit for work from that date until the date listed as the final date for hearing of the matter.
Notwithstanding the date of the certificate, it was not filed with the Tribunal until the following Monday, 13 March 2023 at 3.58 pm, when the practitioner forwarded it to the President's Associate under cover of an email that said:
Dear Associate,
Please find attached a medical certificate from my doctor for the period 09/3/2023 to 24/3/2023 inclusive due to my medical conditions.
Thank you.
Best regards
Manraj Khosa.
As the presiding member of the panel hearing the matter, Judge Jackson was forwarded the email. By email from his Associate on Tuesday 14 March 2023, the practitioner was advised that the panel was unclear what it was that the practitioner was asking and that, should he wish to seek an adjournment of the final hearing (still listed to commence on the following Monday, 20 March 2023) he should 'make such an application promptly and it should be supported by suitable material in addition to the medical certificate…'.
On Wednesday 15 March 2023, the practitioner's wife (Ms Ruba), emailed the Associate in terms which, amongst other things, advised that the practitioner was too unwell to do anything necessary for the making of an application to vacate and that her email was 'the extent of any formal application to adjourn/vacate any proceedings, that can be provided to the Tribunal …'
By return email from the Associate, Ms Ruba was advised that her email had been taken as an application to vacate the final hearing dates and that, on the basis of her email, the Tribunal understood that no further information or material would be provided in support of that application. The Associate's email also advised that the application to vacate was listed to be heard on Thursday, 16 March 2023 at 3.30 pm and orders to that effect were made.
The application to vacate was listed for that time on the basis that it had previously been listed by President Pritchard to deal with an application by the applicant to exclude parts of Ms Ruba's witness statement. The parties were, therefore, assumed to be available to attend the application to vacate at that time.

The Associate's email also advised that the author of the medical certificate was expected to attend the directions hearing to allow the applicant, and perhaps the Tribunal, to ask the doctor questions. However, given the short notice, the email indicated that if the doctor was unavailable at that time, then his Honour would entertain an application by the respondent to have the application heard at any other time between 1.00 pm and 4.00 pm on Friday, 17 March 2023.
By email of 9.38 am on 16 March 2023, Ms Ruba stated that the doctor's 'online booking application (sic) shows that he has no available appointments today. This would suggest that he will be unavailable to attend the Tribunal this afternoon.' She said that she would advise 'once [she was] able to confirm [the doctor's] availability'.
Ms Ruba did not say in that email that she would not attend the hearing at 3.30 pm on 16 March 2023 but that is what happened. Given that there was no appearance by or on behalf of the practitioner, orders were made: (1) adjourning the application to vacate the hearing dates to 1.00 pm on 17 March 2023 (the following day); (2) giving the practitioner leave to seek an alternative time for the listed hearing at any time between 1.00 pm and 4.00 pm on 17 March 2023[33]; and (3) that the application to vacate would be dismissed if, without reasonable excuse, there was no appearance by the practitioner and/or his representative, together with the doctor.[34]
[33] Save that any application must have been made by 11.00 am on that day.
[34] The order explicitly allowed such appearance to occur in person or by Microsoft Teams.
Those orders were published in the ordinary way. In addition, the Associate emailed Ms Ruba with a copy of the orders at 4.40 pm on 16 March 2023.
At 4.50 am (that is not a typographical error) on 17 March 2023, Ms Ruba emailed the Associate and raised three matters.
First, she advised that the Tribunal had previously been advised that listing a hearing on 17 March was impossible due to her father's cardiologist's appointment.[35]
[35] The transcript of the hearing before her Honour on 8 March 2023 (at page 37) shows that the practitioner advised that the practitioner was to take his father to a cardiologist's appointment at 2.30 pm on Friday, 17 March 2023.
Secondly, she advised that: (1) she had been able to speak to the doctor who had authored the medical certificate; (2) she had made an appointment to meet with the doctor on Monday, 20 March 2023 at 12.30 pm; and (3) at that appointment she would show the doctor the Tribunal's orders and ascertain from him his availability to attend at the Tribunal.
Thirdly, she raised her concern that the Tribunal had made orders without her involvement which, she said, 'worries her'.
Nonetheless, Ms Ruba attended the hearing at 1.00 pm on 17 March 2023 and pursued the application to vacate based on the medical certificate.
Judge Jackson dismissed the application giving ex tempore reasons which focused on two matters:
1.That the effects of the car accident suffered by the respondent in 2020 had been a matter raised before President Pritchard on 8 March 2023 in support of the unsuccessful application to vacate on that date.
2.That the medical certificate was so devoid of detail as to render it of very little utility in an application to vacate a hearing in circumstances where an application to adjourn had been refused on the date immediately prior to that of the certificate.
In particular, his Honour's reasons noted that the medical certificate does not:
(a)indicate that its author knows the practitioner well or regularly treats him;
(b)identify the medical condition said to be suffered by the practitioner;
(c)explain the steps, if any, the doctor had undertaken to ascertain what it is that the practitioner is suffering from;
(d)explain what symptoms the practitioner was experiencing;
(e)state that the doctor is aware that the practitioner is party to legal proceedings, had previously and unsuccessfully applied to adjourn the hearing or that he would rely on the medical certificate in support of a further application to avoid attending the proceedings;
(f)state what it is about the relevant medical condition that makes the practitioner unfit for work; or
(g)state that the practitioner is, in fact, unfit to attend the hearing. Rather, it says only that he is unfit for work.
Judge Jackson was also critical of the steps taken to put the author of the medical certificate before the Tribunal in circumstances where:
(a) the President had dismissed a previous application on 8 March 2023;
(b) the medical certificate was dated (and it was assumed had been provided on) 9 March 2023 but had not been provided to the Tribunal until 13 March 2023; and
(c) the hearing was listed to commence on 20 March 2023 in circumstances where that listing date had been in place since July 2022.
In his reasons, Judge Jackson stated that he had not reached a conclusion as to whether or not the practitioner was medically incapable of attending the hearing but, rather, his refusal of the application was because the medical certificate was insufficient in the circumstances to satisfy him that the practitioner was, in fact, medically incapable of attending the principal hearing.
At the conclusion of the hearing on 17 March 2023, Judge Jackson advised Ms Ruba that she should advise the practitioner that the hearing would commence as listed at 9.30 am on Monday, 20 March 2023.
At 1.45 am (again, that is not a typographical error) on Monday, 20 March 2023, Ms Ruba sent an email to the Associate (copied to the applicant) attaching three documents – the original medical certificate, an application to dismiss the proceedings and a further document said to be a letter from the same doctor, which was also dated 9 March 2023.
The letter states as follows:
09/03/2023
To Whom It May Concern
Mr Manera (sic) Khosa is registered under my care. I have known this patient for about 9 years. He has a number of long term medical conditions. He has also has (sic) a number of social stresses at present. These include:
1.Uncontrolled hypertension – this is currently under management and review. He also has Non-Insulin Dependent Diabetes and is under specialist care for this.
2.Neck pain and back pain following Road Traffic Accident. He was seen by Pain Management Specialist in Dec 2022 and is currently undergoing treatment for his chronic pain.
3.Non-insulin Dependent Diabetes which is under specialist care.
I am concerned that given the above physical and mental stresses, a Disciplinary Hearing may cause a deterioration in his physical state. I would be grateful if the above could be taken into account and his hearing deferred for 4 weeks.
Yours faithfully
Dr [redacted] …
The date of the document appeared incorrect in that, had it been created on 9 March 2023, it might be expected to have been filed with the Tribunal previously. We were also concerned with the circumstances in which it was filed – late on a Sunday night/very early Monday morning, after Ms Ruba had previously advised that she was unable to speak to the doctor until Monday lunchtime.
Ms Ruba appeared by telephone at the commencement of the hearing at 9.30 am on 20 March 2023 when we indicated to her that we were concerned that the doctor's letter may not be legitimate.
As a result of those concerns, Ms Ruba advised that the letter had been provided to her by email from the doctor's clinic. At 10.02 am the clinic emailed the Associate with a copy of the letter which in our view was sufficient, despite the circumstances in which it was produced, to satisfy us that the letter was written by the doctor.
In any event, it was unnecessary to deal with that issue or, indeed, rule on the application to vacate the hearing on Monday, 20 March 2023 because, in a verbal exchange with us soon after the hearing commenced, Ms Ruba said that the practitioner was, at that time, being seen as a patient at Fiona Stanley Hospital.
On that basis, the Tribunal adjourned the hearing to 9.30 am on the following day (Tuesday 21 March 2023) and gave the practitioner leave to: (1) file and serve any material associated with or relating to his admission at Fiona Stanley Hospital by 5.00 pm on 20 March 2023; and (2) make a further application to adjourn or vacate the hearing on 21 March 2023 but 'only on the basis of any material filed and served by 5.00 pm on 20 March 2023'.
However, before making those orders we heard, and dismissed as without merit, an additional application by Ms Ruba to dismiss the proceedings.
That application was made by written form attached to Ms Ruba's email of 1.45 am on 20 March 2023. It sought dismissal of the proceedings on the basis that the proceedings themselves were in breach of s 9 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Specifically, the application was made on the basis that the proceedings 'are not speedy', 'are formal', and 'are technical'.
Ms Ruba made further oral submissions in support of that application. Specifically, she pointed to the fact that the proceedings were by that stage, in her view, nine years old.[36] She said that the proceedings had, over time, become increasingly formal and technical and pointed in these regards to the arrangements made for the uplifting of an 'Almanac' and for forensic examination of it by experts in the United States.
[36] Ms Ruba, in calculating the nine years, had regard to previous disciplinary proceedings brought by the applicant against the practitioner (VR 34 of 2015), which were the subject of decisions by the Tribunal [2015] WASAT 107 and, later, the Court of Appeal: [2017] WASCA 192.
As indicated above, we dismissed that application as being without merit. The ex tempore reasons given acknowledged that the proceedings had been on foot for a period which could reasonably be described as too long and that there were formal and legally technical aspects to the case as it then was.
However, the reasons explained, none of those matters were reasons that warrant the dismissal of the proceedings. Rather, in our view the extensive delay provided a proper basis for the final hearing of the proceedings to proceed.
In any event, those reasons explained, s 9 of the SAT Act sets out the objectives of the Tribunal. A failure to meet those objectives, unless it is due to a failure by the applicant to prosecute its case (which is not the case here), ought not provide a basis on which the proceedings may be dismissed. That is particularly so in circumstances where the proceedings concern serious allegations of misconduct against a professional.
Returning to the practitioner's application to vacate the substantive hearing, Ms Ruba provided the Tribunal, by two emails sent either side of 5 pm on 20 March 2023, two further applications to vacate – one on medical grounds and the second on the ground that the practitioner was unable to pay the fees of his expert – Mr Speckin.
In support of the application to vacate on medical grounds, in addition to the original medical certificate and the doctor's letter, was a single page document headed, 'Fiona Stanley Hospital Emergency Medicine Summary' (Summary).
On its face, the Summary appears to be a document created by that Hospital and is in the form of a letter to the general practice clinic at which the doctor, who authored the medical certificate of 9 March 2023 and the subsequent letter, practices.
The Summary states that the practitioner had presented to the Fiona Stanley Hospital Emergency Department at 5.24 am on Monday, 20 March 2023 with, amongst other things, a headache described as '4/10' (which we understand to be an indication of the level of pain), an episode of blurred vision and pain 'over paraspinal muscles', all of which were said to have started 'simultaneously on Saturday'. The notes of the history taken includes reference to additional stressors, such as the ill-health of his parents-in-law, that he had been preparing for the hearing and that his general practitioner had given a medical certificate to the Tribunal which was 'denied'.
The Summary lists his prior medical history as Type 2 Diabetes, hypertension and the effects of a motor vehicle accident in 2020. It describes both the physical examinations and investigations undertaken of the practitioner, including a CT brain scan and an ECG. Both the examination and investigation were described in terms that we understand as normal. The 'principal diagnosis' given is 'Neurological – + Headache – Headache'.
However, neither Ms Ruba nor any one else on behalf of the practitioner, or the practitioner himself, attended at the hearing to prosecute those applications.
Rather, at about 9.00 am (i.e. 30 minutes prior to the scheduled commencement of the hearing), a letter of several pages' length, and purportedly sent/signed by both Ms Ruba and the practitioner, was emailed to the Associates of Judge Jackson and the President, which detailed several complaints regarding the current proceedings and its handling by both the applicant and the Tribunal.
Prior to the commencement of the hearing we had, therefore, only time to briefly scan the document but noted that at both its commencement and its conclusion it indicated that neither Ms Ruba nor the practitioner would participate any further in the proceedings.
Immediately prior to commencing the hearing, Judge Jackson's Associate tried to make contact with Ms Ruba on the phone number that had been previously used to contact her and by which she attended the hearing on both 17 and 20 March 2023. Ms Ruba failed to answer that call.
The hearing commenced at 9.30 am. The practitioner was not in attendance and neither was anyone else on his behalf.
Immediately after the commencement of the hearing, and before anything substantive was said by the applicant's counsel, two further unsuccessful attempts to call Ms Ruba were made by the Associate.
The failure to answer the phone was, in our view, consistent with the stated intention of, apparently, both Ms Ruba and the practitioner to not attend the hearing. We therefore determined to proceed with the hearing notwithstanding the absence of the practitioner and anyone on his behalf.
However, before proceeding to the applicant's case, we determined both applications to vacate the hearing which had been filed at about 5 pm on 20 March 2023.
The first application addressed was that made on medical grounds. As noted above, the application was based on the medical certificate, the doctor's letter and the Summary.
Again, we gave ex tempore reasons which, given the history as described above, focused on the Summary. The reasons included that the Summary indicated that both a physical examination and other investigations were carried out on the practitioner with no abnormality identified and that it gave 'headache' as the principal diagnosis of the practitioner's ailment.
Our reasons also included that the Summary gave as the practitioner's 'past medical history' that he suffers from Type 2 Diabetes, hypertension and the results of a motor vehicle accident in 2020, each of which had been addressed in previous reasons given refusing applications to vacate.
But, in any event, we explained, that history is not, of itself such as to warrant the vacation of the hearing. The motor vehicle accident injuries had been addressed by the President on 8 March 2023 and high blood pressure and Type 2 Diabetes are, as noted by the doctor in his letter of 9 March 2023, matters which are being addressed by specialists. In the absence of further information explaining why those conditions, in isolation or together, were such as to make the practitioner's preparation for, and attendance at, the hearing medically dangerous or even difficult, the bare statement that the practitioner suffers from those conditions is insufficient to warrant further adjournment of the hearing.
We also gave ex tempore reasons for dismissing the practitioner's second application, which was made on the basis that the practitioner is unable to pay the fees of his expert.
Whether or not a party calls and relies upon expert evidence is a matter for them, as is any associated payment of fees.
In any event, a bald assertion to the effect that the practitioner lacks the funds to pay for his expert, in an application filed on what should have been the second day of a hearing and in circumstances where the hearing has been listed for approximately eight months is not a matter sufficient to warrant vacation of those hearing dates.
There is a further matter which, had Ms Ruba sought to attend the substantive hearing of the matter, would have required attention. That is her ability to appear as the practitioner's agent, given that we understand that she is not a legal practitioner.
Section 39(1) of the SAT Act imposes limits on the ability of non‑legal practitioners to appear for a party before the Tribunal but makes provision for exceptions in paragraphs (a) – (f).
At the brief hearing on 20 March 2023, we indicated to Ms Ruba that s 39(1)(e) might provide her with an opportunity to appear, but we expressed concern with the proposition that Ms Ruba might continue to act as the practitioner's agent in circumstances where his case relied upon her evidence. Indeed, her evidence was heavily relied upon by the practitioner in his Response to Ground 2, and particularly what was said at the meeting with the LPBWA on 17 June 2015.
Given the non‑attendance by Ms Ruba at the hearing on 21 March 2023, it was not necessary to determine that matter.
Rather, having given our reasons for dismissing the final two applications to vacate, the applicant opened its case, tendered its four bundles of documents (Exhibits 1 – 4), as well as the affidavits of Ms Plenderleith and Mr Hall (x2) (Exhibits 5 – 7) and called three witnesses, Ms Fulham, Mr Mylotte and Mr B. Each of them adopted as their evidence-in-chief written witness statements that had been filed with the Tribunal in 2020 (Exhibits 8 – 10). They were also each asked questions of clarification by us.
At the conclusion of the applicant's case we adjourned the hearing to the following day, being 22 March 2023.
At the scheduled commencement of the hearing of 9.30 am on 22 March 2023, there was again no appearance by or on behalf of the practitioner.
The Associate again tried to telephone both Ms Ruba and the practitioner before the substantive commencement of the day's hearing. Again, on both occasions, the call went unanswered.
As a result, at the time at which the practitioner would have been invited to open his case, he was not present to do so, either in person or by a representative.
Accordingly, no witnesses were called on behalf of the practitioner to adopt their witness statements (or to give viva voce evidence) and be cross‑examined. Neither did the practitioner himself give any evidence. Likewise, there was no tender of any documents in support of the practitioner's case, whether those contained in his various bundles or otherwise. Equally, no submissions were made by or on behalf of the practitioner.
Again, such an approach by the practitioner is consistent with what we understand to be his position as communicated by the letter received by the Associate at 8.58 am on 21 March 2023.
The Tribunal is bound to afford natural justice to the practitioner, as it is to all parties in proceedings before it.[37]
[37] s 32(1) and (6), SAT Act.
In the circumstances, we are satisfied that that required us to provide the practitioner with an opportunity to understand the allegations against him and to be given an opportunity to prepare for and attend a hearing where he can call evidence and make submissions in answer to those allegations.[38] He has been given that opportunity.
[38] Western Australian Planning Commission v the Board of Valuers [2018] WASCA 145 at [111] – [120], esp [115].

In our view, the practitioner's right to natural justice does not oblige us to have regard to material filed by or on his behalf ahead of the hearing, but which is not tendered or otherwise put into evidence at the hearing.
Indeed, to do so would be to deny natural justice to the applicant in that such a course would be to deny the applicant the opportunity to test the veracity of that material through cross‑examination.
The most obvious example concerns what was said at the meeting with Ms Fulham and Mr Mylotte at the LPBWA's offices on 17 June 2015. It is the practitioner's case that Ms Ruba took contemporaneous notes of that meeting in an 'Almanac'.
The Almanac was the subject of previous orders that allowed the applicant to uplift it and have it tested. Expert evidence was filed on behalf of each party that went to the issue of the date on which the writing in the Almanac was created.
But Ms Ruba did not attend to give evidence. She has not, therefore, adopted her witness statement as her evidence‑in‑chief. She has also, critically, not made herself available for cross‑examination.
In those circumstances we are of the view that it would be grossly unfair to the applicant for us to have regard to her witness statement.
Equally, in the absence of any evidence from Ms Ruba, the Almanac is not before us as evidence and neither is any evidence of the circumstances in which it was produced – i.e. whether it contains contemporaneous notes of the meeting on 17 June 2015.
As a result, the opinion evidence of the experts engaged on behalf of each of the parties as to when the writing contained in the Almanac was written is irrelevant.
That is a remarkable result given the time and effort, and resulting delays to the proceeding, that has gone into the production of the written expert reports, including the joint statement dated 7 April 2022 produced by the two opposing experts following their conferral (Joint Statement).
But that is but one result of the practitioner's decision not to participate in the hearing.
Order 39B(5) of the State Administrative Tribunal Rules 2004 (SAT Rules) provides that where a joint statement is produced following a conference of experts, the Tribunal will, unless it orders otherwise, 'admit the joint statement filed by the experts into evidence at the hearing of the proceeding'.
Given our view that, in the absence of any evidence from Ms Ruba, the joint statement of the experts is irrelevant, we made an order on 22 March 2023 to the effect that the Joint Statement will not be admitted into evidence.
On 22 March 2023, we also made orders that: (1) we would not have regard to any material other than the applicant’s Substituted Annexure A, evidence tendered on behalf of the applicant, the viva voce evidence given by the witnesses called by the applicant, the applicant's written submissions and the practitioner's Response;[39] and (2) that the hearing was adjourned to Friday 24 March 2023 for closing submissions.
[39] The most recent of the practitioner's responses was filed on 20 December 2019 – 'Response to Applicant's Substituted Annexure A dated 11 January 2018 (sic 2019)'. It responded to the applicant's 'Substituted Annexure A dated 11 January 2019'. The differences between the 11 January 2019 Annexure A and that of 30 January 2023 are identified by marked up text which is replicated by us where we have quoted relevant passages.
In our view, the order limiting the material to which we would have regard necessarily follows as a result of the practitioner's decision to refuse to participate in the proceedings – there is nothing before us that has been put into evidence by or on behalf of the practitioner.
The sole exception is the Response, which is not, in our view, evidence but, rather, is somewhat analogous to a pleading in curial proceedings.
The practitioner's Response provides a useful framework within which the applicant's case might be tested. It also contains very many admissions made by the practitioner.
We are satisfied, and we find, that there is nothing in the material before us that gives us cause to doubt the correctness of the facts admitted by the practitioner. In that regard we rely on the fact that the practitioner is a legal practitioner. We are also satisfied, and we find, that where there are contemporaneous documents, the admissions are consistent with those documents. Accordingly, we are satisfied that we are entitled to act on the admissions contained in the Response.[40]
[40] Damberg v Damberg (2001) 52 NSWLR 492 at [154] and [160]; Westgem Investments Pty Ltd In Its Own Right As Trustee For Hossean Pourzand And Jenny Maria Pourzand Atf The Helen Trust v Commonwealth Bank of Australia Ltd [No 5] [2019] WASC 310 at [116].
The orders made on 22 March 2023 also, in our view, gave the practitioner notice that the hearing had proceeded in his absence, that we had determined not to consider any of the material which had been filed by him or on his behalf save for the Response, that the applicant's case had closed and, that, if he wished to participate further in the hearing, he would be entitled to make closing submissions when we recommenced on Friday 24 March 2023.
In the event, the practitioner failed to attend at the adjourned hearing on 24 March 2023, either in person or through a representative.

The Grounds

As noted above, by Orders made 27 February 2023 the applicant was granted leave to rely on Substituted Annexure A, which sets out three Grounds alleged against the practitioner.
Ground 1
That the practitioner MANRAJ SINGH KHOSA (the practitioner) between on or about 18 October 2013 and on or about 31 March 2014 in the course of acting for Rosebridge Nominees Pty Ltd (the client) in the matter of Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia, Corrs Chambers Westgarth & WFB Pty Ltd (CIV 1235 of 1999) (the Proceedings) engaged in professional misconduct, within the meaning of sections 403 and 438 of the Legal Profession Act 2008 (WA) (the Act), in that his conduct fell short, substantially or consistently, or both, , [sic] of the standard of professional conduct observed by members of the legal profession of good repute and competence, further or alternatively, would justify a finding that he is not a fit and proper person to engage in legal practice, further or alternatively, would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, in circumstances where:
a) at all material times the practitioner was aware the client was having difficulty funding the Proceedings and on or around 910 October 2013 had deposited into trust only $75,000 (the client funds) of the $250,000 requested by the practitioner on account of legal fees and disbursements for the Proceedings;
b) on 18 October 2013 he engaged Mr B[ ] to act as junior counsel for the client in the Proceedings and signed a retainer agreement with Mr B[ ] in his capacity as the sole legal practitioner director of Angove Law Pty Ltd (Angove Law) on 14 November 2013 (the Retainer) in which he agreed, pursuant to the Retainer, that Angove Law would be liable for the payment of Mr B[ ]'s fees even if Angove Law did not receive funds from the client to pay Mr B[ ]'s fees;
c) on 18 October 2013 Mr B[ ] provided costs disclosure with a costs estimate of between $135,000 and $180,000 for his fees in the Proceedings;
d)at all material times neither Angove Law or the practitioner personally had the capacity to pay Mr B[ ]'s fees in excess of the client funds if the client did not make payment of those fees to Angove Law;
in that the practitioner:
e) failed to pay 5 invoices issued by Mr B[ ] between on or around 30 October 2013 (the October invoice) and on or around 28 February 2014 and, further, in preference to paying Mr B[ ]'s outstanding fees from the client funds, instead applied the client funds in payment of invoices issued by Angove Law, which conduct was in breach of the Retainer and the practitioner's professional obligations pursuant to Rule 26 of the Legal Profession Conduct Rules 2010 (the Conduct Rules);
f) on 29 November 2013, and subsequent to making a $7,000 part‑payment of the October invoice from the client funds, prepared and sent an email to Mr B[ ] which represented, in effect, that:
i. the ~~client~~ funds in the bank account from which the $7,000 part payment was made that were available to pay the October invoice (available funds) were sufficient to meet the October invoice in full, however due to the daily payment limit being reached on Angove Law's bank account, the maximum payment the practitioner was able to make to Mr B[ ] that day was $7,000; and
ii. sometime during the week commencing Monday, 2 December 2013, the practitioner would, accordingly, pay the balance of the October invoice,
(the Payment representation)
which Payment representation was to the knowledge of the practitioner false or misleading, or both, and/or had the potential to mislead Mr B [ ], as the true position was that at the time the email was sent ~~the balance of the client funds~~ the available funds ~~was~~ were ~~either $14,325.64 or~~ $12,093.19, and ~~in any event was~~ were insufficient to pay the balance of the October invoice.
Ground 2
That the practitioner between about June 2015 and about July 2015 engaged in professional misconduct, within the meaning of sections 403 and 438 of the Act in that his conduct fell short by a substantial degree of the standard of professional conduct observed by members of the legal profession of good repute and competence, further or alternatively, would justify a finding that he is not a fit and proper person to engage in legal practice, further or alternatively, would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by:
a) at a meeting with officers of the Legal Practice Board (Board) held on 17 June 2015 to discuss the potential closure of Angove Law:
i. informing the Board, in effect, alternatively, conveying the impression to the Board, that Angove Law could meet its current debts and was solvent;
ii. failing to inform the Board, as was in fact the case, that:
A. at the time Angove Law had significant outstanding debts, including an amount of $137,815 which was due and payable by Angove Law to Mr B[ ] for his fees; and
B. Angove Law did not have the financial means to pay that amount to Mr B[ ],
(together, the 17 June representation),
which 17 June representation was to the knowledge of the practitioner false or misleading, or both, and/or had the potential to mislead the Board as the true position was that Angove Law was unable to meet its debts and was insolvent; and/or
b) making representations to the Board in:
(i) a Form 7 dated 23 June 2015 that a new legal practice of Law on Newcastle Pty Ltd (LoN) was not taking over an existing legal practice; and
(ii) a Form 9 dated 9 July 2015 that Angove Law was not being taken over by a new legal practice
(together, the written representations),
which written representations were to the knowledge of the practitioner false or misleading, or both, and/or had the potential to mislead the Board, as the true position was that the existing legal practice of Angove Law was taken over by the new legal practice of LoN,
c)attempting to avoid the liabilities of Angove Law, including the obligation to pay Mr B[ ]'s fees pursuant to the Retainer and the practitioner's professional obligations under Rule 26 of the Conduct Rules by deriving the new incorporated legal practice of LoN from the existing practice of Angove Law; and/or
d) engaging in the conduct the subject of (a) and/or (b) above as part of that attempt.
Ground 3
That the practitioner between about 25 September 2015 and about 27 September 2016 during an investigation by the Applicant of a complaint against the practitioner, and after 28 September 2018 during an investigation by the Applicant against the practitioner pursuant to section 421 of the Act, engaged in professional misconduct within the meaning of sections 403, 404(a) and 438 in that his conduct fell short, substantially or consistently, or both, of the standard of professional conduct observed or approved by members of the profession of good repute and competence, further or alternatively, would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by, without reasonable excuse:
a) failing to respond to correspondence from the Applicant requesting information and documents dated 31 August 2015, 5 October 2015 and 2 November 2015 until required to do so by summons issued by the Applicant to the practitioner pursuant to section 520(1) of the Act dated 20 November 2015 for the provision of documents and information, in breach of Rule 50(3) of the Conduct Rules;
b) failing to respond to correspondence from the Applicant requesting information and documents dated 17 February 2016, 23 March 2016 and 13 May 2016, in breach of Rule 50(3) of the Conduct Rules;
c) failing to respond to correspondence from the Applicant requesting information and documents dated 15 June 2016 until required by summons issued by the Applicant to the practitioner pursuant to section 520(1) of the Act dated 27 July 2016 for the provision of documents and information, in breach of Rule 50(3) of the Conduct Rules;
d) failing to respond to a summons issued by the Applicant to the practitioner pursuant to section 520(1) of the Act dated 12 September 2016 for the provision of documents and information by 4.00pm on 27 September 2016 in contravention of sections 520(5) and 532(3) of the Act; and/or
e) by 28 September 2018 or at all, failing to respond to correspondence from the Applicant requesting information and documents dated 14 September 2018, in breach of Rule 50(3) of the Conduct Rules and/or section 531(2) of the Act.

The Statutory Regime and Legal Principles

As noted above in the Introduction, the proceedings were commenced by the applicant pursuant to its referral to the Tribunal under s 428(1) of the LP Act. Section 438(1) of that Act provides that the Tribunal 'has jurisdiction to make a finding that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct'.
The LP Act was repealed on 1 July 2022 by s 260(a) of the Legal Profession Uniform Law Application Act 2022 (WA). However, for the reasons explained in Goldsmith[41] and Bostock[42] the LP Act has ongoing operation in matters referred to the Tribunal by the applicant where both the conduct the subject of referral, and the referral itself, occurred prior to that date.
[41] Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43 (S) (Goldsmith (S)) at [5] – [34]. The Court of Appeal has recently granted an appeal against this decision – Goldsmith v Legal Services and Complaints Committee [2023] WASCA 136 (Goldsmith [2023]). The appeal was not concerned with this issue.
[42] Legal Services and Complaints Committee and Bostock [2022] WASAT 100 at [44] – [52].
Sections 402 and 403 of the LP Act contain non-exhaustive definitions of the terms 'unsatisfactory professional conduct' and 'professional misconduct', respectively. Section 402 of the LP Act states as follows:
For the purposes of this Act –
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.
Section 403 of the LP Act states as follows:
(1)For the purposes of this Act –
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.
(2)For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.
As was recently observed by the Tribunal in Lourey[No 2],[43] the Court of Appeal has twice confirmed that the statutory definition of 'professional misconduct' in s 403 of the LP Act includes conduct which satisfies either of the two limbs described in Kyle,[44] as well as conduct which falls within the description in s 403(1)(a) or (b).[45]
[43] Legal Services and Complaints Committee and Lourey [No 2] [2023] WASAT 77 (Lourey [No 2]) at [223].
[44] Kyle v Legal Practitioners' Committee [1999] WASCA 115; (1999) 21 WAR 56 (Kyle) at [61].
[45] Fidock v Legal Profession Complaints Committee [2013] WASCA 108 (Fidock) at [105] – [106]; Legal Profession Complaints Committee v Lourey [2022] WASCA 114 (Lourey [2022]) at [197]. See also Goldsmith [2023] at [56].
In Kyle the Court held that conduct which satisfied what was then described, in the applicable legislation, as 'unprofessional conduct' but which is now referred to as 'professional misconduct', was:[46]
… 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.
[46] Kyle at [61] (Parker J, Ipp J and Steytler J agreeing).
More recently, in Lourey [2022], the Court of Appeal observed:
The definitions [of 'unsatisfactory professional conduct' and 'unprofessional conduct'] are not exhaustive. They are inclusive. Each definition states that the expression being defined includes specified conduct. The inclusive part of each definition does not diminish the generality of the ordinary and natural meaning of the expression 'unsatisfactory professional conduct' or 'professional misconduct' in relation to a legal practitioner.[47]
[47] Lourey [2022] at [197] citing Fidock at [34] – [36].
Each of the three Grounds alleged by the applicant in this case are that the conduct in question constitutes professional misconduct in three different senses.
First, it is said that the conduct in question 'fell short, substantially or consistently, or both, … of the standard of professional conduct observed by members of the legal profession of good repute and competence'. That is, save for the inclusion of the term 'consistently', a statement of the second limb in Kyle.[48] As noted in Lourey [No 2] (at [57]), there is also some overlap with the test set out in s 403(1)(a), especially when read with s 402.
[48] Kyle at [61].
Secondly, it is said, 'further or alternatively', that the conduct 'would justify a finding that he is not a fit and proper person to engage in legal practice'. That is a statement of the test in s 403(1)(b) of the LP Act.
Thirdly, it is said (again, further or alternatively), that the conduct 'would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence.' That is a statement of the first limb in Kyle.[49]
[49] Ibid.
In Lourey [2022], the Court of Appeal found that the Tribunal had denied the applicant procedural fairness when it found that Mr Lourey's conduct constituted professional misconduct as per the definition in s 403(1)(a) of the LP Act but failed to address whether conduct constituted professional misconduct under the two limbs in Kyle.[50]
[50] Lourey [2022] at [187], [195] – [201].

The Court's decision in Lourey [2022], in effect, confirms that the statutory definition of professional misconduct in s 403(1) of the LP Act includes, as a separate and distinct test, both limbs in Kyle. It also requires that we address each of the three senses in which each Ground alleges the conduct constitutes professional misconduct.
Returning to the statutory framework, Ground 3 alleges that the practitioner failed, without reasonable excuse, to provide information and documents pursuant to requests and, in some cases, pursuant to summonses issued under s 520(1) of the LP Act. That section provides:
(1)For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, an investigator may, by notice or summons served on the lawyer, require the lawyer to do any one or more of the following —
(a) to produce, at or before a specified time and at a specified place, any specified document (or a copy of the document);
(b) to produce, at a specified time and at a specified place, any specified document (or a copy of the document);
(c) to provide written information on or before a specified date;
(d) to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner.
(2)…
(3)An investigator may require that information required to be given under subsection (1) or (2) be verified on oath or affirmation or by statutory declaration.
(4)…
(5)A person who is subject to a requirement under subsection (1), (2) or (3) must comply with the requirement.
Penalty: a fine of $5 000.
Ground 3 alleges that the failure to provide the information and documents occurred without reasonable excuse. That appears to be a reference to s 532(3)(b) of the LP Act. Indeed, subground 3(d) alleges a contravention of that section, which is headed 'Obligations of Australian lawyers' and provides:
(1)The duties imposed on an Australian lawyer by this section are additional to obligations imposed under other provisions of this Part, whether or not the lawyer is the subject of the investigation, examination or audit concerned.
(2)…
(3)An Australian lawyer who is subject to —
(a)a requirement under section 520; or
(b)a requirement under provisions of a corresponding law that correspond to that section,
must not, without reasonable excuse, fail to comply with the requirement.
The previous section, s 531 of the LP Act, is also relevant. Subground 3(e) alleges conduct in contravention of s 531(2), which provides that a 'person must not, without reasonable excuse, obstruct or mislead an investigator exercising a power under this Act.'
Both subgrounds 1(e) and 2(c) refer to the practitioner's obligations under Rule 26 of the Legal Profession Conduct Rules 2010 (Conduct Rules) while subgrounds 3(a), (b), (c) and (e) refer to Rule 50(3) of the Conduct Rules.
The Conduct Rules appear to have been repealed as a result of the repeal of the LP Act.[51] They were however, in force at the time of all conduct the subject of the three grounds alleged against the practitioner. The terms of the relevant Rules are set out below. In each case they create obligations and standards of behaviour. To the extent that it is necessary to do so, in our view, s 37(1)(d) of the Interpretation Act 1984 (WA) has the effect of preserving those obligations notwithstanding the repeal of the LP Act and any consequential repeal of the Conduct Rules. The relevant Rules provide as follows:
[51] Although, note s 38 of the Interpretation Act 1984 (WA).
26. Responsibility for fees of other practitioners
(1)Unless otherwise agreed, a practitioner who engages another practitioner to advise or assist in a matter is responsible for the payment of the other practitioner's fees.
(2)A practitioner must pay fees referred to in subrule (1) within a reasonable time, whether or not the client has provided sufficient funds.
(3)…
50. Dealing with regulatory authority
(1)In this rule —
regulatory authority means a local regulatory authority and an interstate regulatory authority.
(1)A practitioner must be open and candid in his or her dealings with a regulatory authority.
(2)A practitioner who is requested by a regulatory authority to provide comments or information in relation to the practitioner's conduct or professional behaviour must —
(a) respond to the request within a reasonable time and in any event within 14 days (or such extended time as the regulatory authority may allow); and
(b) provide in writing a full and accurate account of his or her conduct in relation to the matters covered by the request.
As to the burden and standard of proof, the Tribunal said the following in Chang, which we adopt:[52]
The [applicant] 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 v Briginshaw [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.
[52] Legal Profession Complaints Committee and Chang [2019] WASAT 67 (Chang) at [8].
In these reasons, when we express ourselves as satisfied, and make a finding, we do so on the balance of probabilities and on the basis of evidence which we regard as clear and cogent, having regard to what was said in the above quoted passages.

Ground 1

In its submissions, the applicant addressed this Ground as three sub‑grounds as follows:
(a)The practitioner failed to pay five invoices issued by Mr B – subground 1(a);
(b)The practitioner paid the fees of his own firm, Angove, in preference to Mr B's outstanding fees – subground 1(b);
(c)The practitioner represented to Mr B, having paid him $7,000 of the $24,472.80 owing for the October invoice, that: (1) there were sufficient funds in the account from which the $7,000 had been paid to pay the balance; (2) he had only paid $7,000 because he had reached the bank's daily payment limit; and (3) he would pay the balance the following week, when, in fact, he had inadequate funds to pay the outstanding balance – subground 1(c).
In his opening submissions, Mr Musikanth SC, who appeared with Mr Beetham for the applicant, submitted that Ground 1 should be read as if the words 'and/or' is contained between paragraphs (e) and (f) of the Ground.
In doing so, he accepted that a finding of professional misconduct could not be made on the sole basis that the practitioner had failed to pay Mr B (subground 1(a)) but, he submitted, such a finding was open if such failure occurred in either or both of the circumstances outlined in paragraphs (e) or (f).[53]
[53] ts 51 – 52, 21 March 2023.
We agree that that is a fair reading of the Ground. Paragraph (e) of Ground 1 contains within it both subgrounds 1(a) and 1(b) and, while paragraph (f)/ subground 1(c) is capable of being read as a self‑contained ground of itself, its inclusion as the final of six paragraphs, the previous five of which deal with the circumstances surrounding the failure to pay, means that it can also be read, in our view, as a factor which aggravates the practitioner's failure to pay Mr B's fees.
In any event, for the reasons which follow, we are satisfied, and we find, that each of subgrounds 1(a), 1(b) and 1(c) are made out. It is immaterial, therefore, whether or not paragraphs (e) and (f) to Ground 1 ought to be construed conjunctively or disjunctively or both.

Subground 1(a)

In his Response, the practitioner admits that Mr B was engaged to act as junior counsel for the client in the Proceedings by Angove, pursuant to the Retainer.[54] He also admits that the Retainer provided, amongst other things, that:
(a)Mr B's retainer 'will be by Angove Law Pty Ltd';
(b)Angove 'will be liable for payment of all bills even if [Angove has] not received funds from [its] client to pay the bill'; and
(c)payment of each bill is due within 30 days.[55]
[54] Response, para 10.
[55] Response, para 11.
The practitioner's admissions in that regard are consistent with paragraphs 3 and 4 of Mr B's witness statement,[56] which cross‑references a copy of the Retainer.[57] Mr B gave evidence at the hearing by which he adopted the contents of his witness statement as his evidence‑in‑chief. He was not cross-examined.
[56] Witness Statement of [Mr B] dated 20 July 2020, (Exhibit 10).
[57] Exhibit 1, pages 155 – 156.
The practitioner also admits that Mr B issued each of the October Invoice, the November Invoice, the December Invoice, the January Invoice and the February Invoice.
The practitioner also admits, in effect, that he paid only $12,000 towards the October Invoice. The relevant paragraphs of the applicant's Statement of Facts and Contentions (SFC) [58] allege, respectively, that:
(a)a payment of $7,000 was made in part-payment of the October Invoice on 29 November 2013;
(b)a further part-payment of $5,000 toward the October Invoice was made on 18 December 2013 as a consequence of which the balance of client funds was $3,367.61 which was insufficient to pay the remainder of the October Invoice, let alone the November invoice;
(c)following a meeting with the client on 29 January 2014, the practitioner sought the deposit of further funds from the client by 31 January 2014, which did not occur;
(d)on 17 March 2014, the practitioner advised the client that Angove would seek to withdraw from the Proceedings and that if the outstanding fees were not paid, recovery action against the client would be commenced;
(e)by letter of 28 April 2014, Mr B stated that he had billed Angove $172,621.35 and that he had received only $12,000 and demanded that he be paid $160,621.35 in outstanding fees;
(f)on 20 February 2015, Mr B sent a copy of a certificate of taxed costs to the practitioner and sought payment of his taxed costs by 3 March 2015 whether or not the client had paid Angove, to which the practitioner wrote in response on 5 and 11 March 2015 saying, in effect, that he was unable to commit to a repayment plan;
(g)By emailed letter of 4 June 2015, Nova Legal demanded payment of $137,815 (being the taxed amount less than $12,000) plus interest, to which no payment was made at any time.[59]
[58] Response, paras 22, 27, 31 – 32, 36, 39, 58 – 62 and 66 – 67; SFC, paras 22, 27, 31 – 32, 36, 39, 57 – 61 and 65 – 66.
[59] Mr B's Witness Statement does not attend to each of those matters in any real detail. At para 5 he says that he caused a complaint to be made to the applicant against the practitioner 'for failure to pay the balance of [his outstanding fees'] for work reflected in the various invoices which are then identified. At para 6 he identifies the certificate of costs.
Mr B's Witness Statement is consistent with those allegations and admissions, although it does not address all of that material in so much detail.
We have said, at para [162] above, that the facts alleged in that para are admitted by the practitioner 'in effect'.
In all but one case, the practitioner's Response admits the relevant paragraph of the SFC. The exception is para 27 of the SFC, which is summarised at paragraph [162(b)] above. The Response does not, in terms, either admit or deny the facts alleged in that para. Rather, it alleges that:
(a)in or about late November/ early December 2013, the practitioner informed Mr B that the client had not made any further payment to Angove but that as soon as such payment was made, the various invoices would be paid, to which proposal 'Mr B[ ] agreed';
(b)the practitioner 'made counsel [i.e. Mr B] aware of the failure of the Client to place further funds in trust';
(c)the practitioner 'recollects' that the failure of the client to put further funds in trust was discussed at 'various conferences' including on 29 January 2014.
The effect of that para of the Response is, in our view, to admit that no payments were made to Mr B after $5,000 was paid on 18 December 2013, and that at least a discussion was had with Mr B after that occurred.
At its highest, para 27 of the Response might be said to allege that Mr B agreed not to pursue his outstanding fees until the client deposited funds into Angove's trust account for that purpose (Alleged Agreement).
In his witness statement, Mr B expressly denies that the Alleged Agreement was reached.[60] Further, and in apparent support for that denial, he says, correctly, that there is no such record of the Alleged Agreement in the Substituted Further Supplementary Book of Documents, dated 13 July 2020 (Exhibit 3).[61] That, (i.e. Exhibit 3) he says, comprises a complete copy of his handwritten file notes of all discussions (both by phone and in person) between him and the practitioner from 4 November 2013 to 24 December 2013.[62]
[60] Exhibit 10, para 9.
[61] Exhibit 3.
[62] Exhibit 10, para 9.
There is nothing before us to rebut Mr B's evidence. As we have already said, he was not cross-examined and the practitioner neither gave evidence nor tendered any documents.
That is, in our view, sufficient to dispose of the matter and we find that the practitioner and Mr B did not reach agreement in terms consistent with the Alleged Agreement.
We are comforted in that regard by actions subsequent to the date of the Alleged Agreement of the practitioner which, in our view, are inconsistent with the suggestion that the Alleged Agreement was reached.
First, at para 27 of the Response, the practitioner alleges that the Alleged Agreement was reached 'in about the end of November 2013 and early December 2013'. But the practitioner made payments to Mr B on 29 November 2013 and 18 December 2013 without making any reference to the Alleged Agreement. Those payments were made out of funds previously deposited which were not exhausted until 3 January 2014. If such an agreement was to be reached it seems to us more likely that it would occur after the exhaustion of funds and with some form of written acknowledgement.
Secondly, Mr B issued invoices on each of 24 December 2013 (payable by 29 January 2014),[63] 31 January 2014 (payable by 3 March 2014),[64] and 28 February 2014 (payable by 30 March 2014).[65] Had the Alleged Agreement been reached it seems unlikely that Mr B would have included, as express provisions of the relevant invoices, the relevant dates by which payment was required in each case and, had such inclusion occurred in error, it seems likely that the practitioner would have reminded Mr B of the terms of the Alleged Agreement upon receipt of those invoices.
[63] Exhibit 1, page 524.
[64] Exhibit 1, page 518.
[65] Exhibit 1, page 513.
Thirdly, there would appear to be nothing written by the practitioner to Mr B in response to his letter of 20 March 2014 terminating his retainer.[66]
[66] SFC, para 37; Response, para 37.
Fourthly, there was nothing raising the terms of the Alleged Agreement from the practitioner in correspondence between him and Mr B to the effect that the moneys claimed were not yet due and payable. In that regard:
(a)Mr B wrote to the practitioner on 28 April 2014 demanding payment, and the practitioner admits[67] that he did not respond in writing. Significantly, he does allege[68] that he met with Mr B in the first week of May 2014 when he spoke to Mr B about his financial affairs but he does not claim that the Alleged Agreement was raised.
[67] Response, para 40.1; SFC, para 40.
[68] Response, paras 40.3 and 40.5.
(b)Mr B also wrote to the practitioner on each of 26 May 2014,[69] 3 June 2014,[70] 9 June 2014,[71] 16 June 2014,[72] 23 June 2014[73] and 4 July 2014[74] either demanding immediate payment of his outstanding fees, demanding an answer to previous correspondence, requesting a payment plan be put in place or inviting the practitioner to settle the matter. The practitioner admits that he did not respond to any of them.[75]
(c)By letter of 17 June 2014 Mr B asked the practitioner to confirm receipt of previous correspondence to which the practitioner responded on 20 June 2014 in which he stated that Angove would issue a final letter of demand to the client and would provide 'regular updates' as to the recovery of fees from the client.[76] There is no mention of the Alleged Agreement in that letter.[77]
(d)The practitioner wrote to Mr B on 1 July 2014 in which he stated, amongst other things:
As to the payment of your outstanding fees, I am still not in a position to make any proposal to you on a repayment plan as the financial position of the Practice is still uncertain.[78]
That is, plainly, completely at odds with any suggestion that he had reached agreement with Mr B that the latter's fees were not due and payable unless and until Angove was put in funds by the client.
(e)On 20 February 2015, Mr B sent a copy of the certificate of taxation to the practitioner and demanded payment. On 5 March 2015 he wrote again as there had been no response. In response to the second letter the practitioner emailed on 5 March 2015 saying, amongst other things, that 'the financial position of the practice is still uncertain enough that the practice is not able to make any commitment to a repayment plan or any plan'.[79] An email including similar text was sent on 11 March 2015.[80] Again, such statements are at odds with the terms of the Alleged Agreement.
(f)Finally, the practitioner's response to the demand by Mr B's solicitors for payment, such as it was, did not include any reference to the Alleged Agreement.[81]
(g)There is nothing in the Response, or in anything else properly before us, that purports to explain why the Alleged Agreement was not even mentioned, let alone relied upon, to explain why no payment was made.
[69] Exhibit 1, pages 162 – 163.
[70] Exhibit 1, page 164.
[71] Exhibit 1, page 165.
[72] Exhibit 1, page 166.
[73] Exhibit 1, pages 170 – 171.
[74] Exhibit 1, page 175.
[75] Response, paras 42, 44, 46, 48 and 51; SFC, paras 42, 44, 46, 48 and 51.
[76] Response, para 49; SFC, para 49.
[77] Exhibit 1, page 169.
[78] Exhibit 1, pages 173 – 174.
[79] Response, para 62; SFC, para 61; Exhibit 1, page 188.
[80] Response, para 63; SFC, para 62; Exhibit 1, page 199.
[81] Response, paras 66 and 67; SFC, paras 65 and 67; Exhibit 1, pages 188 – 191 and 199.
For these reasons, we repeat that we are satisfied and we find, that the practitioner did not reach agreement with Mr B in the terms alleged in para 27 of the Response (i.e. the Alleged Agreement).
Indeed, we are satisfied, and we so find, that the practitioner did not subjectively believe that he had reached such agreement with Mr B.[82]
[82] cf Legal Profession Complaints Committee and Goldsmith [2022] at WASAT 43 (Goldsmith) at [151].

The applicant also submits that deliberately misleading the LPBWA should be seen in the same light as deliberately misleading the court (or Tribunal) given its role of regulating the profession.[286]
[286] Applicant's Written Submissions at [13].
The applicant submits that the practitioner's conduct the subject of findings as to grounds one and two falls within the category of conduct that instantly demonstrates unfitness to practice in that those findings 'directly impugn [the practitioner's] integrity and honesty'. As a result, it submits that 'there is no prospect that the [practitioner] can command the personal confidence of clients, fellow practitioners and judges'.[287]
[287] Applicant's Written Submissions at [19], [21] and [22].
The findings as to ground three are also very serious, it submits, because although there is no dishonesty:
… failings of this type have the capacity to compromise both the system of regulation for which the Board is responsible and to which practitioners are answerable and, ultimately, the protection of the public.
The applicant also submits that the practitioner 'has shown no insight and demonstrated no remorse' which, it is said, is evidenced by, amongst other things, his conduct of the proceedings, including his failure to appear at trial without a reasonable excuse.[288]
[288] Applicant's Written Submissions at [24].
The applicant also relies upon the practitioner's prior disciplinary history, including his previous suspension for two months for the breach of a personal undertaking in 2017, which it characterises, correctly in our view, as 'not honest conduct'.[289]
[289] Applicant's Written Submissions at [27] and [29].
Although the practitioner filed written submissions and attended the hearing, in fact he made no submissions as to penalty save to say that no penalty should be imposed because, in his view, our findings as to misconduct are unsafe and the applicant's conduct was inappropriate.[290]
[290] ts 4 - 6, 15 December 2023.
The practitioner's written submissions:
(a)criticise the applicant, including in terms which allege dishonest conduct on its part,[291] delay,[292] and that it 'racially profiled' the practitioner and Ms Ruba;[293]
(b)are highly critical of the Tribunal and seek to re-agitate various applications, in ways sometimes inconsistent with our findings, made by him and his wife to vacate the hearing in March 2023;[294]
(c)seek to, in effect, relitigate the matters which were alleged by him but not pursued at the hearing in March 2023 because he did not attend.[295]
[291] The Respondent's Written Submissions for a hearing to be held on 15 December 2023 (Respondent's Written Submissions) at pages 2 and 9 - 10.
[292] Respondent's Written Submissions at page 3.
[293] Respondent's Written Submissions at page 4.
[294] Respondent's Written Submissions at page 7.
[295] Respondent's Written Submissions at pages 3 - 4 and 11.
The submissions critical of the Tribunal include various paragraphs under the heading 'Bias', which included that he and Ms Ruba had concluded that he 'was not [sic - would not?] receive a fair hearing' as a result of the 'bullying and intimidatory behaviour shown to Ms Ruba' in dealing with the applications to vacate.[296] They also include submissions that by proceeding in his absence with the substantive hearing, he was denied the opportunity to be heard.[297]
[296] Respondent's Written Submissions at pages 8 - 9.
[297] Respondent's Written Submissions at page 10.
Such matters are, self-evidently, potential grounds for appeal, rather than submissions going to the appropriate penalty that should be imposed. So much was put to the practitioner during the penalty hearing, to which he responded by stating that he was considering an appeal and that 'this whole matter is crying out for an appeal'.[298]
[298] ts 6, 15 December 2023.
However, given the criticism directed at the Tribunal, and particularly at the presiding member in three identified paragraphs, we enquired of the practitioner as to whether they constituted an application for, or provided the basis for an application for, recusal. By reply, the practitioner stated cryptically, that:
It's just stating what has occurred. If it does give rise to recusal, so be it. If it gives rise to something else, then let's see where that goes. I haven't turned my mind to that.[299]
[299] ts 3, 15 December 2023.
The practitioner did not otherwise pursue an application for recusal and the hearing proceeded.
We will not engage with the substance of the practitioner's submissions which allege, in effect, misconduct against the applicant and complain about the manner in which the hearing was conducted. They are for others to determine, if such matters are pursued. We set them out here to say no more than that the practitioner failed to take up the opportunity to put his case, just as he did in March last year at the substantive hearing.

Determination as to penalty

As indicated above, we have determined that the appropriate penalty is to order that the Tribunal make and transmit a report to the full bench of the Supreme Court with a recommendation that the name of the practitioner be removed from the local roll of practitioners.
We are of that view having regard to the following matters.
First, as indicated above, we have made findings that, in relation to grounds one and two the practitioner engaged in conduct, including deliberately dishonest conduct, that is such as to warrant a conclusion that the practitioner is not a fit and proper person to engage in legal practice.
Of course, such a conclusion does not require us to make the same finding as to the appropriate penalty. Amongst other things, the question presently before us is whether the practitioner is currently (as at the time of determining penalty) unfit to practice,[300] whereas our previous findings concern conduct that occurred as long ago as 2013. Nonetheless, the findings plainly carry significant weight.
[300] A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 at [21]; Khosa v Legal Profession Complaints Committee [2017] WASCA 192 at [195].
Secondly, and as noted in the immediately preceding paragraph, our findings as to grounds one and two involve findings of deliberate dishonesty; that is, findings that he knowingly misled counsel (ground one) and the LPBWA on three separate occasions (ground two).
As we held in relation to ground one:
Integrity and honesty are essential characteristics expected of a practitioner, and accordingly the court [and this Tribunal] has generally taken a very serious approach when dealing with dishonesty by a practitioner.[301]
Intentionally misleading anyone is a serious breach of the practitioner's professional duty.[302]
[301] Gandini vLegal Profession Complaints Committee [2013] WASCA 168(S) at [36]. (Citation in original).
[302] Vogt vLegal Profession Complaints Committee [2009] WASCA 202 at [61]. See also the passage in Metaxas reproduced at [23] above.
We also agree with the applicant's submission[303] that misleading the LPBWA should be seen in the same light as misleading the court. As was stated in Lee-Steere,[304] the reputation of the profession depends to a large extent upon the power and the ability of the LPBWA (and the applicant) to effectively regulate the activities of legal practitioners. In Lee-Steere, the Tribunal held that to ensure that the LPBWA and the applicant can achieve that purpose, practitioners are required to cooperate with the reasonable requests of their regulatory body 'with alacrity and with complete honesty'.[305] Relevantly, in this regard, it also held that the duty owed to the LPBWA and to the applicant is 'not less than the duty owed by a practitioner to his or her client and to a Court or Tribunal'.[306]
[303] Applicant's Written Submissions at [13].
[304] Legal Profession Complaints Committee and Lee-Steere [2010] WASAT 189 (Lee-Steere) at [22] - [24].
[305] Lee-Steere at [24].
[306] Lee-Steere at [23].
Thirdly, and consistent with the immediately preceding paragraph, while the findings in relation to ground three do not involve dishonesty, they are nonetheless very grave indeed. Amongst other things, as noted above, our findings include that the practitioner 'obstructed the exercise' of powers of the applicant's investigator.[307]
[307] Primary Reasons at [464].
But even without that particular finding, over a very lengthy period (several years - 2015, 2016 and 2018), and over five separate periods of time and in each case without reasonable excuse, the practitioner failed to meet his obligation to assist the regulator with its investigations.
The fourth matter is (as per the preceding paragraph) that the practitioner's conduct covers a very considerable period of time, stretching from the end of 2013, when he misled Mr B, through 2015 when he misled the LPBWA and sought to derive LoN from Angove Law and failed without a reasonable excuse to adequately respond to the LPBWA's requests for information and documents, through 2016 and 2018 when there were further failures to promptly provide information and documents, including his obstruction of powers of the investigator.
The fifth relevant matter is that the conduct the subject of ground two was dishonest conduct aimed at avoiding the practitioner's obligation to pay Counsel's fees; that is, he stood to benefit from the dishonest conduct at the expense of Mr B.
The preceding five relevant matters go to the seriousness of the offending. In our view, as should be apparent, we are of the view that it is very serious indeed. It covers both dishonest conduct and conduct that makes more difficult the job of the regulator. The dishonest conduct included conduct by which the practitioner sought to obtain a personal advantage. In the case of both types of conduct there are instances of the conduct in question over a period of years.
We turn now to circumstances personal to the practitioner.
The sixth relevant matter is that the conduct the subject of ground two occurred soon after the imposition of a penalty of suspension of his practising certificate. The Tribunal imposed a penalty of six months suspension for the practitioner's breach of an undertaking on 16 May 2015.[308] On appeal, that suspension was stayed on 20 June 2015[309] and, later, reduced to two months.[310] The conduct the subject of ground two occurred either side of the grant of the stay: on 17 and 23 June and 9 July 2015.
[308] Legal Profession Complaints Committee and Khosa [2015] WASAT 107(S).
[309] Khosa vLegal Profession Complaints Committee [2017] WASCA 192 at [3].
[310] Khosa vLegal Profession Complaints Committee [2017] WASCA 192 (S) at [9].
That is, at the very time when the practitioner was being sanctioned for 'not honest' behaviour, he engaged in dishonest conduct; specifically the making of false representations to the LPBWA.
It is true that as at that time the practitioner was appealing the previous findings of misconduct, but it might fairly be said that the circumstances should have focused his attention on the need for scrupulous care to ensure all dealings were honest.
That he engaged in dishonest conduct at that time appears to us to be a factor that supports a finding that he is inherently unsuitable for practice.
Seventh, as should be apparent from immediately above, the practitioner does not have a clean record in relation to disciplinary action for dishonesty. In 2015, the Tribunal found that he knowingly breached a personal undertaking to another practitioner.[311]
[311] Legal Profession Complaints Committee and Khosa [2015] WASAT 107.
Accordingly, even if the conduct the subject of grounds one to three could be viewed as a single course of conduct (and, in our view it cannot, given its duration, various forms of conduct and various forms in which it occurred), it cannot be said, as was said in 2015 by the Tribunal in relation to the breach of the undertaking, that the conduct represents 'an isolated act of misjudgement'.[312] Rather, in our view the practitioner has engaged in several instances of dishonest and otherwise inappropriate conduct over a lengthy period of time.
[312] Legal Profession Complaints Committee and Khosa [2015] WASAT 107 (S) at [29].
The eighth relevant matter is that the practitioner has shown no insight into, or remorse for, his conduct. While it has been said that the absence of remorse is not aggravating,[313] it is plainly relevant in determining the appropriate penalty.
[313] KhosavLegal Profession Complaints Committee [2017] WASCA 192 at [58] (Buss P).
As Murphy and Beech JJA held in Khosa at [193]:
A failure on the part of the practitioner to appreciate the impropriety of his or her conduct may support a finding of unfitness to practise. A reason for this is that the lack of appreciation of impropriety and the lack of insight increases the risk of recurrence of the improper conduct.[314]
[314] Citations omitted.
In our view, that is the situation that applies here. As we have previously noted, the practitioner's written submissions were silent as to the relevant penalty that should be imposed. Rather, for thirteen pages, he attacked the applicant (and Mr Musikanth SC, as his Honour then was, who appeared as Senior Counsel for the applicant), accusing it of a myriad of failings, as well as the Tribunal, and sought to relitigate various matters.
In other words, he failed to accept the findings previously made by us and blamed others for the situation he now finds himself in.
In our view, the current case very much falls within the class of cases anticipated by their Honours in the passage quoted above; the practitioner lacks the necessary appreciation of the impropriety of his conduct and lacks any insight into the central role played by him as the author of his own downfall.
We turn, then, to the question of deterrence.
In our view, all of the conduct the subject of our findings calls for appropriate sanction by way of general deterrence. That goes without saying (or, at least, it should) for dishonest conduct and dealings with the regulator. But it also goes for payment of counsel's fees. In this case, not only was Mr B not paid, but the practitioner preferred his own fees to those of counsel and he then engaged in dishonest conduct to avoid the liability to pay.
In our view, the conduct the subject of our findings must be condemned in the strongest terms to ensure that practitioners clearly understand the implications of such behaviour.
Taking all of those matters into account, we are satisfied that the appropriate penalty is for an order that the Tribunal make and transmit a report on the finding to the full bench of the Supreme Court pursuant to s 438(2)(a) of the LP Act.
In short, the practitioner has been found guilty of several instances of dishonest behaviour, including making false representations to counsel and the LPBWA, some of which was designed to avoid his obligation to pay counsel's fees. He has also been found guilty of other conduct that had the effect of making it more difficult for the regulator to perform its statutory role. The conduct occurred over a lengthy period of time and in a number of different fora. When called to account for that behaviour, the practitioner failed to attend the hearing and, having been the subject of adverse findings, failed to accept responsibility for his conduct but, rather and amongst other things, has sought to blame others.
For those reasons we are satisfied, and we find, that the practitioner is currently unfit to practise. Furthermore, we are satisfied, and we find, that that would remain the case at the end of any period of suspension that we might otherwise consider appropriate.
So much follows from the duration of the conduct, the proximity of the conduct in time to his previous sanction, the fact that he has previously been found guilty of professional misconduct for 'not honest conduct' and the lack of insight and remorse for his wrongdoing.
That is, we are satisfied, and we find, that that the practitioner lacks the character and trustworthiness necessary to discharge the responsibilities of legal practice and is indefinitely (if not permanently) unfit to practise.
Accordingly, in our view (and we find) striking off rather than suspension is the appropriate response.

Costs

As noted above, the applicant seeks an order that the practitioner pay the applicant's costs of the proceeding fixed in the amount of $197,574.35.[315]
[315] The applicant originally sought the figure of $198,305.85: Applicant's Submissions at [41]. However, that sum included an estimate of costs incurred in preparing for and attending the hearing as to penalty and costs. In the event the sum charged by counsel was less than the estimated sum: Letter of the applicant filed 15 December 2023.
The relevant principles were recently set out in Lawson,[316] where the Tribunal said:
[316] Legal Profession Complaints Committee and Lawson [2021] WASAT 152(S) at [60] - [63].
[60]The starting point in such an application is s 87 of the SAT Act, which states as follows:
(1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2)Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
[61]As noted in Questdale,[317] the effect of s 87(1) of the SAT Act is that each party in proceedings before the Tribunal is to bear its own costs, unless the Tribunal otherwise orders.
[62]In Roberman[318] the Tribunal said that although the award of costs is a matter of discretion to be exercised in the circumstances of each case, where a regulatory body is successful in bringing a complaint of misconduct which justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body.[319] That is because, as the Tribunal said, such regulatory bodies:
perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application.[320]
[63]As was noted in Quinlivan, the observations of the Tribunal in Roberman have been cited with approval by the Court of Appeal several times. Most recently, in Young[321] Buss P, (with whom Quinlan CJ and Beech JA relevantly agreed)[322] repeated the relevant passages of the Tribunal in Roberman and the Court of Appeal in Quinlivan and said:
The proper exercise of the Tribunal's discretionary power under s 87(2) of the SAT Act to make an award of costs depends, of course, upon all the circumstances of the particular case. Ordinarily, as a matter of fact, the Tribunal will make an award of costs in favour of a regulatory body which is successful in bringing a complaint of misconduct in professional disciplinary proceedings. However, in each case, the discretionary power to make an award of costs must be exercised having regard to the circumstances of the particular case.
[317] Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 at [46] (per Murphy JA, Corboy J agreeing) and at [51]. (Citation in original).
[318] Medical Board of Western Australian and Roberman [2005] WASAT 81(S) (Roberman). (Citation in original).
[319] Quinlivan v Legal Profession Complaints Committee [2012] WASCA 263(S) (Quinlivan) at [10]. (Citation in original).
[320] Roberman at [30]. (Citation in original).
[321] Young v Legal Profession Complaints Committee [2022] WASCA 52 (Young) at [261]. (Citation in original).
[322] Young at [1]. (Citation in original).

In this case, as it did (in effect) in Lawson, the applicant submits that it would be 'fair and reasonable for the [practitioner] to pay the disbursements the applicant has incurred in prosecuting the application' in light of 'the findings made by the Tribunal concerning the [practitioner's] conduct and the public interest in pursuing that conduct by way of disciplinary proceedings'.[323]
[323] Applicant's Written Submissions at [36] - [37].
The practitioner's written submissions do not address the subject of costs, save to refer to a previous application of the practitioner to have the evidence of the ink expert engaged by the applicant (Mr La Porte) dismissed.[324]
[324] Respondent's Written Submissions at page 12.
In our view, and we find, there was a public interest in the applicant bringing the complaints of misconduct against the practitioner. Further, as we have found above, the complaints have been found proven and in our, view justified the bringing of disciplinary action. Accordingly, we find that there is a 'strong case' for the exercise of the discretion to make an order for costs in favour of the applicant, and there are no grounds of which we are aware that militate against that conclusion.
As to quantum, we note that the applicant:
(a)does not seek any costs in respect of its own legal officer's time in relation to the matter; [325]
(b)seeks only its disbursements by way of:
(i)payments made to counsel and senior counsel;
(ii)fees paid to Mr La Porte as expert engaged to assess the veracity of Ms Ruba's claim that she made contemporaneous notes in her Almanac of the meeting with LPBWA on 17 June 2015, and associated costs;[326]
(iii)minor ancillary disbursements such as ASIC and bankruptcy searches; and
(iv)its costs in relation to the application filing fee and the costs of transcripts.
(c)seeks recovery of counsel's and senior counsel's fees at no more than Scale, including in circumstances where, for two invoices, counsel charged the applicant slightly higher than Scale;
[325] Applicant's Written Submissions at [40].
[326] Being courier fees to transport the Almanac to the United States.
As to counsel's (and senior counsel's) fees, the principles set out in in de Braekt[327] provide for the Tribunal to determine the amount of work which was reasonable and necessary to properly prepare and present the case and then to apply, as a useful guide as to the maximum rates which might be allowed on a party/party basis, the relevant or daily rates specified in the relevant costs determination.
[327] Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58(S) (in de Braekt) at [53].
That task is more difficult here than in some cases, given the twists and turns taken by the matter over a period of more than six years (late 2017 to the end of 2023).
Consistent with its usual practice, the applicant has prepared a table setting out the relevant disbursements and attached the invoices of counsel and senior counsel. In our view, there is nothing in those invoices which suggests the need to do anything other than accept them.
As we have noted above, counsel's and senior counsel's fees claimed are at no more than Scale. We also note that, on two occasions, counsel discounted his fees somewhat.
Further, having reviewed the invoices, and noting the difficulty associated with the considerable passage of time, we have reached the view that the time recorded by counsel and senior counsel for the preparation of and presentation of the applicant's case was, on the whole, reasonable. As we have noted, the practitioner made no submissions in this regard; he did not identify any particular work or time that he said was unreasonable.
As to Mr La Porte's fees, these too appear reasonable. They include the microscopic testing of the Almanac and the preparation of the report, the review of the report prepared by Mr Speckin (engaged by the practitioner), the preparation of a supplemental report, conferral with Mr Speckin, the preparation of a joint report, and preparation for the hearing.[328]
[328] Applicant's Bundle - Penalty and Costs, 10 November 2023 at pages 155 - 160.
Of course, as we noted in the Primary Reasons, all of Mr La Porte's work was wasted as the practitioner failed to attend the hearing and, as a result, Ms Ruba was not called and her Almanac was not tendered into evidence. In our view, the practitioner ought to reimburse the applicant for Mr La Porte's costs and the associated costs of couriering the Almanac between Australia and the United States, where he is based.
The costs of obtaining ASIC and bankruptcy searches appear reasonable in the circumstances. The practitioner should reimburse the applicant for them.
As to the Tribunal's fees, the practitioner should be required to pay the applicant's costs as to the application fee ($465) and the hearing fee ($2,540). As to the costs of obtaining transcript:
(a)On 10 March 2021, the applicant made two applications for a copy of each of the transcripts of the hearings held on 29 July 2020, which was the day on which its application to uplift the Almanac for testing was heard. The President's decision was delivered in December 2020, which decision the practitioner then appealed. On 19 February 2021 the Court of Appeal dismissed the application for a stay of the President's decision.[329] The appeal itself was heard on 24 March 2021.[330] While the application for the transcript was expressed as being for the purposes of 'the Committee's records', it is reasonable to infer that it was obtained for the purposes of defending the appeal. In our view, the order for costs in this proceeding should not include the costs of obtaining a transcript for the purposes of the appeal, being a sum of $416.40.
(b)On 8 February 2023, the applicant sought a copy of the transcript of the hearing held on 15 February 2022, at which the President considered the practitioner's application to exclude the evidence of Mr La Porte, and on 21 June 2022, at which the President considered the programming of the hearing.
(i)The applicant has filed two invoices dated 14 February 2023, for $163.35 and $104.90 respectively.
(ii)Upon review, the transcript of 21 June 2022 appears to do no more than consider the programming of the matter for hearing. We are unable to ascertain what benefit or purpose the transcript may have provided for the preparation of the hearing seven months later and in our view the practitioner ought not to pay the applicant's costs in this regard.
(iii)On 15 February 2022, after hearing the argument on the matter, the President ordered that the application to exclude Mr La Porte's evidence be determined at the time of the substantive hearing which was, as at 8 February 2023, listed to commence a few weeks later, on 20 March 2023. We accept that, given the passage of time, it was appropriate for the applicant to obtain transcript ahead of the hearing to address that matter and the practitioner should pay the applicant's costs in that regard.
(c)On 22 March 2023, the applicant sought transcript of the substantive hearing. The application states that the transcript was sought for all four days of the originally listed hearing (20 ‑ 24 March 2023). Two invoices appear to have been issued - one on 22 March 2023 and for 20 and 21 March 2023 ($2,524.70) being a deposit; and one on 13 April 2023 which was described as for 'final payment' ($357.10). The obtaining of the transcript of the hearing in order to properly prepare for closing submissions is entirely appropriate. The practitioner should therefore pay the applicant's costs of $2,524.70 plus $357.10 equalling $2,881.80.
[329] Khosa v Legal Profession Complaints Committee [2021] WASCA 34.
[330] Khosa v Legal Profession Complaints Committee [2021] WASCA 64.
Accordingly, an order should be made for the payment by the practitioner of the disbursements claimed by the applicant in the sum of $197,053.05.

Conclusion and Orders

For the above reasons, having completed a hearing in relation to a referral under Pt 13 of the LP Act, and being satisfied that the practitioner is guilty of professional misconduct, we are of the view that the appropriate course is to make and transmit a report on the finding and a recommendation that the name of the practitioner be removed from the local roll of practitioners, to the Supreme Court (full bench) pursuant to s 438(2)(a) and s 438(4)(b) of the LP Act.
We are also of the view, for the above reasons, that an order should be made requiring the practitioner to pay the costs of the applicant in the fixed sum of $197,053.05 within 30 days or such longer period as may be agreed between the parties.
It is for these reasons, the Tribunal makes the following orders.

Orders

The Tribunal Orders:
1.Pursuant to s 438(2)(a) and s 438(4)(a) and (b) of the Legal Profession Act 2008 (WA), the Tribunal is to make and transmit a report on the findings of the Tribunal in these proceedings to the Supreme Court (full bench) with both a record of the evidence taken at the hearing and a recommendation that the name of the practitioner be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008 (WA).
2.Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the practitioner is to pay the applicant's costs of the proceeding fixed in the amount of $197,053.05, such costs to be paid to the Legal Practice Board of Western Australia (Board) within 30 days or as otherwise agreed between the practitioner and the Board.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

PN
Associate to Judge Jackson

28 MARCH 2024