Legal Services and Complaints Committee and Lourey [No 2]
[2023] WASAT 77
•29 AUGUST 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: LEGAL SERVICES AND COMPLAINTS COMMITTEE and LOUREY [No 2] [2023] WASAT 77
MEMBER: PRESIDENT PRITCHARD
JUDGE H JACKSON, DEPUTY PRESIDENT
MR R POVEY, MEMBER
HEARD: 22 – 23 FEBRUARY 2023
DELIVERED : 29 AUGUST 2023
FILE NO/S: VR 98 of 2018
BETWEEN: LEGAL SERVICES AND COMPLAINTS COMMITTEE
Applicant
AND
MICHAEL JOSEPH LOUREY
Respondent
Catchwords:
Vocational regulation – Legal practitioner – Allegations of professional misconduct – Allegation of failing to comply with summons – Whether practitioner had reasonable excuse for failure – Whether failure was for purpose or substantial purpose of frustrating or hindering investigation – Kyle test – Section 403 definition of professional misconduct includes common law test – Statutory interpretation – Findings of professional misconduct
Legislation:
Criminal Code Act Compilation Act 1913 (WA), s 22
Legal Profession Act 2008 (WA), s 105, s 106, s 402, s 403, s 403(1), s 403(1)(a), s 403(1)(b), s 404(a), s 428(1), s 438, s 438(1), s 438(2), s 442, s 520, s 520(1), s 520(1)(a), s 520(1)(c), s 520(1)(d), s 520(3), s 520(5), s 520(7), s 520(8), s 521(2), s 521(6), s 532, s 532(3), s 532(3)(a), s 532(3)(b), s 584, s 584(1)
Legal Profession Conduct Rules 2010 (WA), r 50
Legal Profession Uniform Law Application Act 2022 (WA), s 297
Legal Profession Uniform Law Application Act 2014 (Vic)
Legal Profession Uniform Law (NSW), s 264, s 297, s 297(1), s 297(1)(b)
Result:
The practitioner engaged in professional misconduct
Category: B
Representation:
Counsel:
| Applicant | : | Mr G Cobby SC and Mr N Pope |
| Respondent | : | In Person |
Solicitors:
| Applicant | : | Legal Services and Complaints Committee |
| Respondent | : | Chapmans Barristers & Solicitors |
Cases referred to in decision(s):
A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253
Allinson v General Council of Medical Education and Registration [1894] QB 750
Aurora Construction Materials Pty Ltd v Victorian WorkCover Authority [2017] VSC 573
Australian Securities and Investments Commission v Select AFSL Pty Ltd (No 2) [2022] FCA 786; 162 ACSR 1
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246
Comcare v Fiedler [2001] FCA 1810; 115 FCR 328
Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339
Fidock v Legal Profession Complaints Committee [2013] WASCA 108
Johns v Law Society of NSW [1982] 2 NSWLR 1
Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56
Law Society of New South Wales v Sullivan [2000] NSWADT 167
Law Society of New South Wales v Treanor [2005] NSWADT 285
Legal Practitioners Complaints Committee v Camp [No 2] [2010] WASC 207
Legal Profession Complaints Committee and Chang [2019] WASAT 67
Legal Profession Complaints Committee and Lee-Steere [2010] WASAT 189
Legal Profession Complaints Committee and Lourey [2019] WASAT 41
Legal Profession Complaints Committee v Lourey [2019] WASC 62
Legal Profession Complaints Committee v Lourey [2022] WASCA 114
Lourey v Legal Services and Complaints Committee [2023] WASCA 90
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
Palmer v Dolman [2005] NSWCA 361
Re Veron; Ex parte Law Society of New South Wales [1966] 1 NSWR 511
Taikato v The Queen (1996) 186 CLR 454
Westgyp Pty Ltd v Northline Ceilings Pty Ltd [2018] WASC 244
Wilson v McDonald [2009] WASCA 39
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction and overview
This matter arises following a remittal from the Court of Appeal[1] of four grounds (Grounds) which had been included in an application referred to the Tribunal by the applicant, seeking findings of professional misconduct and consequential orders against the respondent, pursuant to s 438 of the Legal Profession Act 2008 (WA) (LP Act). The four Grounds concerned the respondent's alleged failure to comply with four summonses issued by the applicant requiring the respondent to provide documents and information (summonses).
[1] Legal Profession Complaints Committee v Lourey [2022] WASCA 114 (Appeal Decision).
The applicant had alleged that the respondent's conduct constituted professional misconduct in more than one way, including that enunciated in Kyle v Legal Practitioners' Complaints Committee[2] (Kyle).
[2] Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 (Kyle).
The Tribunal, at first instance,[3] found that the respondent failed to comply with the summonses and that that conduct constituted professional misconduct as described in s 403(1)(a) of the LP Act, without determining whether that conduct also satisfied the test in Kyle.
[3] Legal Profession Complaints Committee and Lourey [2019] WASAT 41 (First Instance).
The Court of Appeal found that the Tribunal, at first instance, had denied the applicant procedural fairness in that the Tribunal had failed to consider the applicant's case insofar as it contended that the alleged failure by the respondent to comply with the summonses constituted professional misconduct having regard to the test in Kyle. The basis for that decision turned, in part, on the finding[4] that the statutory definition of professional misconduct in s 403(1) of the LP Act includes conduct which meets the test enunciated in Kyle.[5] The Court of Appeal remitted the four Grounds back to the Tribunal for redetermination.
[4] Appeal Decision at [197].
[5] Kyle at [61].
Consistent with the principles of remittal,[6] we have proceeded to determine each of the four Grounds afresh, as if they had not previously been the subject of findings.
[6] Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at [7] (Gleeson CJ).
In each of the four Grounds, the respondent is alleged to have engaged in professional misconduct, in three distinct senses, by failing to comply with a summons issued pursuant to s 520 of the LP Act, without reasonable excuse, where the purpose of such failure was to frustrate or hinder the applicant's investigation into the respondent's conduct.
For the reasons that follow, we are satisfied that in each case the Ground is made out and the respondent's failure to comply with each of the summonses constituted professional misconduct in each of the three alleged senses, including in the sense enunciated in Kyle.
We will hear from the parties as to the appropriate penalty and as to costs.
The factual background and the Grounds
The applicant's application to the Tribunal concerned a number of allegations set out in various annexures to the application. Only Grounds 2 and 3 of Annexure A and Grounds 3 and 4 of Annexure B were remitted.
Annexure A – Grounds 2 and 3
In early 2016, the respondent was engaged by Mr S to assist him in a claim for worker's compensation.
The respondent's firm (Chapmans) filed a Form 100 with WorkCover WA (WorkCover) in May 2016[7] to which the Director of Conciliation of that organisation responded by way of letter to Chapmans on 26 May 2016.[8]
[7] Exhibit 1, Applicant's Bundle of Documents dated 19 September 2018 (Exhibit 1), pages 6 – 15.
[8] Exhibit 1, page 16.
By letters of 2 June 2016[9] and 17 June 2016,[10] Chapmans wrote to the director of WorkCover's conciliation service in terms that prompted a complaint from WorkCover to both the firm[11] and the applicant.[12]
[9] Exhibit 1, page 17.
[10] Exhibit 1, page 22.
[11] Exhibit 1, page 23.
[12] Exhibit 1, pages 24 – 25.
In the latter complaint to the applicant, the complaint noted that '[w]hile the correspondence is signed 'Chapmans', the legal practitioner with responsibility for this particular matter is Mr Michael Lourey, as can be discerned from the reference number.'[13] That is a reference to text at the top of each letter which reads as follows:
Our Ref: ml:L9:16/0080
[13] Exhibit 1, page 24.
As will be seen, the identity of the author of the letters was central to the dispute between the parties in that the summonses issued by the applicant required the respondent to provide documents and information for the purpose of assisting the applicant in ascertaining such identity.
Following the WorkCover complaint to the applicant, Chapmans wrote again to WorkCover by letter dated 29 June 2016.[14] Again, the reference set out above was at the top of Chapmans' letter.
[14] Exhibit 1, page 29.
We pause to note that in the case of each of the 2 June and 17 June letters, the copy included in the Applicant's Bundle of Documents which was tendered in evidence was signed 'Yours faithfully, Chapmans, Barristers and Solicitors'. In between the words 'Yours faithfully' and the word 'Chapmans' was a 'signature', although it is not clear whether the letter was physically signed or whether some form of electronic signature was attached. In each case, the 'signature' constituted the word 'Chapmans' in handwriting. In the case of the copy of the 29 June 2016 letter which was in evidence, there was no 'signature' at all. Rather, only the printed words 'Yours faithfully, Chapmans, Barristers and Solicitors' were present.
By letters addressed to the respondent dated 22 June 2016[15] and 1 July 2016,[16] the applicant invited the respondent to apologise in relation to the contents of the letters of 17 and 29 June 2016. No apology having been made, the matter was then referred to the applicant's investigation team for investigation.[17]
[15] Exhibit 1, pages 26 – 27.
[16] Exhibit 1, pages 30 – 31.
[17] Exhibit 1, page 32.
On 4 January 2017, Ms Donaldson, the applicant's Senior Legal Officer, wrote to the respondent by letter which enclosed, by way of service, two documents, both of which were dated 4 January 2017 and were signed by the Law Complaints Officer:
(a)a summons under s 520(1)(a) and s 520(1)(d) of the LP Act which required the respondent to provide certain documents (4 January Document Summons); and
(b)a summons under s 520(1)(c), s 520(1)(d) and s 520(3) of the LP Act, which required the respondent to provide certain written information verified by statutory declaration (4 January Information Summons).[18]
[18] Exhibit 1, pages 33 – 39.
The 4 January Document Summons sought, in effect, the following:
(a)the entire original Chapmans file as at 1 August 2016 and all documents arising by reason of Chapmans acting for Mr S in respect of his worker's compensation claim up to and including 1 August 2016, including but not limited to:
(i)all correspondence and communications, including emails;
(ii)all internal correspondence, file notes, memoranda, reports, advice, draft documents, file opening documentation and administrative information;
(iii)all applications and documents filed with WorkCover;
(iv)all timesheets/pre-billing reports, invoices and records relating to work done and the payment of invoices; and
(v)all documents in electronic form only.
(b)in respect of each of the letters dated 2 June 2016, 17 June 2016 and 29 June 2016 referred to above:
(i)all draft versions of that letter including any track changes and/or comments;
(ii)a complete audit trail from the relevant computer system used to create the letter showing the history or log of all activity performed in respect of the letter; and
(iii)all metadata and other data available on the computer system in relation to the electronic copy of each draft version of the letter and the final version of the letter.
The 4 January Information Summons required the respondent, by way of a statutory declaration, to answer four questions in relation to each of the three letters dated 2 June 2016, 17 June 2016 and 29 June 2016, being:
(a)whether he composed the wording of the letter and, if so, on what date did he do so, and what date did he make any revisions to it;
(b)was any other person involved in the composing of the letter and, if so, to what extent were they involved, on what date were they involved, and in relation to what part or parts were they involved;
(c)whether the respondent had any discussions with Mr S about the content of the letter, either prior to or after the letter was signed and sent; and
(d)on what date did the respondent send the letter or cause the letter to be sent.
The applicant alleges that the respondent failed to comply with the 4 January Document Summons and the 4 January Information Summons (4 January Summonses), without reasonable excuse, in circumstances where the purpose of that failure was to frustrate and hinder the applicant's investigation into the complaint made by WorkCover.
Ground 2 of Annexure A concerns the failure to comply with the 4 January Document Summons, while Ground 3 of Annexure A concerns the failure to comply with the 4 January Information Summons.
The two Grounds in Annexure A are as follows:
GROUND 2
That the Practitioner, from 28 February 2017 and continuing during the investigation by the Committee of a complaint against the Practitioner in relation to the Practitioner's conduct of the Claim (the Complaint), engaged in professional misconduct within the meaning of sections 403, 404(a) and 438 of the Act, in that his conduct fell short consistently and by a substantial degree of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence such that he is not a fit and proper person to engage in legal practice within the meaning of section 403(1)(b) of the Act, further and alternatively was contrary to section 520(5) of the Act, further and alternatively was a contravention of his obligation under section 532(3)(b) of the Act by, without reasonable excuse, and for the purpose or a substantial purpose of seeking to frustrate or hinder the Committee's investigation into the Complaint, failing to comply with a summons served on the Practitioner by the Law Complaints Officer pursuant to sections 520(1)(a) and 520(1)(d) of the Act dated 4 January 2017 and varied on 8 and 17 February 2017 for the production of documents (the Document Summons) and returnable at 4pm on 8, then varied to 15 and 28, February 2017, in that:
(a)the Practitioner failed to comply with the Document Summons at all by 4pm on 28 February 2017;
(b)further and alternatively, by letter to the Committee of 28 February 2017 the Practitioner expressly refused to produce:
(i)all of the documents requested in the Document Summons; and
(ii)documents created after 29 June 2016 despite the fact that paragraph 1 of the Document Summons required the Practitioner to produce documents in existence up to 1 August 2016;
(c)further and alternatively, under cover of a letter of 8 March 2017 the Practitioner produced to the Committee a bundle of copy documents, whereas the Document Summons required the Practitioner to produce (amongst other things) the entire original file as at 1 August 2016;
(d)further and alternatively, the copy documents which the Practitioner produced to the Committee did not include the following which were in the Practitioner's possession:
(i)all additional documents on the file created between 29 June 2016 and 1 August 2016; or
(ii)any of the documents referred to in sub-paragraph 1(d) of the Document Summons, namely all time sheets/pre‑billing reports, invoices and records relating to work done and the payment of invoices;
(e)further and alternatively, the Practitioner thereafter continued to fail and refuse to comply with the Document Summons.
GROUND 3
That the Practitioner, from 28 February 2017 and continuing during the investigation by the Committee of the Complaint, engaged in professional misconduct within the meaning of sections 403, 404(a) and 438 of the Act, in that his conduct fell short consistently and by a substantial degree of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence such that he is not a fit and proper person to engage in legal practice within the meaning of section 403(1)(b) of the Act, further and alternatively was contrary to section 520(5) of the Act, further and alternatively was a contravention of his obligation under section 532(3)(b) of the Act by, without reasonable excuse, and for the purpose or a substantial purpose of seeking to frustrate or hinder the Committee's investigation into the Complaint, failing to comply with a summons served on the Practitioner by the Law Complaints Officer pursuant to sections 520(1)(c) and (d) and 520(3) of the Act dated 4 January 2017 and varied on 8 and 17 February 2017 for the provision of written information verified by statutory declaration (the Information Summons) and returnable at 4pm on 8, then varied to 15 and 28, February 2017, in that:
(a)the Practitioner failed to comply with the Information Summons at all by 4pm on 28 February 2017;
(b)further and alternatively, under cover of a letter dated 13 April 2017 the Practitioner provided to the Committee a statutory declaration of the Practitioner made on 13 April 2017, by which the Practitioner purported to object to providing any of the information required by the Information Summons and failed to provide that information save only to admit (which did not constitute compliance or purported compliance with the Information Summons) that he (the Practitioner) was "responsible from a professional point of view for all correspondence that is prepared and sent on my files", when the Practitioner had no or no reasonable basis for objecting to providing the information required by the Information Summons;
(c)further and alternatively, the Practitioner thereafter continued to fail and refuse to comply with the Information Summons at all.
Annexure B – Grounds 3 and 4
The remitted Grounds in Annexure B are almost identical to those in Annexure A and the alleged conduct occurred in similar circumstances.
In each case, complaints were made by Civic Legal (CL), the solicitors acting for RiskCover, and the subject matter of the complaint was correspondence sent by Chapmans to either RiskCover or CL in relation to Chapmans' clients, Mr F and Ms M.
On 17 January 2017, Ms Donaldson wrote to the respondent by letter which enclosed, by way of service, two documents, both of which were dated 17 January 2017 and were signed by the Law Complaints Officer:
(a)a summons under s 520(1)(a) and (d) of the LP Act which required the respondent to provide certain documents (17 January Document Summons); and
(b)a summons under s 520(1)(c) and (d) and s 520(3) of the LP Act, which required the respondent to provide certain written information verified by statutory declaration (17 January Information Summons).[19]
[19] Exhibit 1, pages 161 – 169.
The 17 January Document Summons sought, in effect, the following:
(a)the entire original file as at 30 October 2016 and all documents arising by reason of Chapmans acting for Mr F in respect of his worker's compensation claim up to and including 30 October 2016, including, but not limited to:
(i)all correspondence and communications;
(ii)all internal correspondence, file notes, memoranda, reports, advice, draft documents, file opening documentation and administrative information;
(iii)all applications and documents filed with WorkCover;
(iv)all timesheets/pre-billing reports, invoices and records relating to work done and the payment of invoices; and
(v)all documents in electronic form only.
(b)in respect of the letter dated 22 March 2016 to RiskCover,[20] and each of the letters to CL dated 11 May 2016,[21] 12 May 2016[22] and 7 September 2016[23] in relation to Mr F, and in respect of each of the letters to CL dated 23 September 2016,[24] 6 October 2016[25] and 13 October 2016[26] in relation to Ms M:
(i)all draft versions of that letter including any track changes and/or comments;
(ii)a complete audit trail from the relevant computer system used to create the letter showing the history or log of all activity performed in respect of the letter; and
(iii)all metadata and other data available on the computer system in relation to the electronic copy of each draft version of the letter and the final version of the letter.
[20] Exhibit 1, page 130.
[21] Exhibit 1, page 137.
[22] Exhibit 1, page 140.
[23] Exhibit 1, page 148.
[24] Exhibit 1, page 150.
[25] Exhibit 1, page 155.
[26] Exhibit 1, page 159.
In relation to the 17 January Information Summons, the respondent was required, by way of a statutory declaration, to answer four questions in relation to each of the letters dated 22 March 2016, 11 May 2016, 12 May 2016 and 7 September 2016 in relation to Mr F and in respect of each of the letters dated 23 September 2016, 6 October 2016 and 13 October 2016 in relation to Ms M:
(a)whether he composed the wording of the letter and, if so, on what date did he do so and what date did he make any revisions to it;
(b)was any other person involved in the composing of the letter and, if so, to what extent were they involved, on what date were they involved and in relation to what part or parts were they involved;
(c)whether the respondent had any discussions with (respectively) Mr F or Ms M about the content of the letter, either prior to or after the letter was signed and sent; and
(d)on what date did he send the letter or cause the letter to be sent.
The applicant alleges that the respondent failed to comply with the 17 January Document Summons and the 17 January Information Summons (17 January Summonses), without reasonable excuse, in circumstances where the purpose of that failure was to frustrate and hinder the applicant's investigation into the complaint made by CL.
Again, in each case, the letters with which the two 17 January Summonses were concerned were signed 'Chapmans' and included a reference at the top of each letter which read as follows:
Our Ref: ml:L9:15/0077
or
Our Ref: ml:L9:15/0071
And again, as will be seen, the identity of the author of the letters was central to the dispute between the parties.
We also pause to note that each of the letters the subject of the 17 January Summonses were signed 'Yours faithfully, Chapmans, Barristers and Solicitors' but only some of them bore a physical 'signature'. However, in each case that the copy was 'signed', the 'signature' was of the word 'Chapmans' in handwriting.
Ground 3 of Annexure B concerns the failure to comply with the 17 January Document Summons while Ground 4 of Annexure B concerns the failure to comply with the 17 January Information Summons.
The two grounds in Annexure B are as follows:
GROUND 3
That the Practitioner, from 28 February 2017 and continuing during the investigation by the Committee of a complaint against the Practitioner in relation to the Practitioner's conduct of the Claim (the Complaint) and a conduct investigation being carried out by the Committee in respect of the Practitioner's letters of 6 and 13 October 2016 (the Conduct Investigation), engaged in professional misconduct within the meaning of sections 403, 404(a) and 438 of the Act, in that his conduct fell short consistently and by a substantial degree of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence such that he is not a fit and proper person to engage in legal practice within the meaning of section 403(1)(b) of the Act, further and alternatively was contrary to section 520(5) of the Act, further and alternatively was a contravention of his obligation under section 532(3)(b) of the Act by, without reasonable excuse, and for the purpose or a substantial purpose of seeking to frustrate or hinder the Committee's investigation into the Complaint and/or the Conduct Investigation, failing to comply with a summons served on the Practitioner by the Law Complaints Officer pursuant to sections 520(1)(a) and 520(1)(d) of the Act dated 17 January 2017 and varied on 8 and 17 February 2017 for the production of documents (the Document Summons) and returnable at 4pm on 8, then varied to 15 and 28, February 2017, in that:
(a)the Practitioner failed to comply with the Document Summons at all by 4pm on 28 February 2017;
(b)further and alternatively, by letter to the Committee of 28 February 2017 the Practitioner expressly refused to produce:
(i)all of the documents requested in the Document Summons; and
(ii)documents created after 7 September 2016 despite the fact that paragraph 1 of the Document Summons required the Practitioner to produce documents in existence up to 30 October 2016;
(c)further and alternatively, under cover of a letter of 8 March 2017 the Practitioner produced to the Committee a bundle of copy documents, whereas the Document Summons required the Practitioner to produce (amongst other things) the entire original file as at 30 October 2016;
(d)further and alternatively, the copy documents which the Practitioner produced to the Committee did not include the following which were in the Practitioner's possession:
(i)all additional documents on the file created between 7 September 2016 and 30 October 2016; or
(ii)any of the documents referred to in sub-paragraph 1(d) of the Document Summons, namely all time sheets/pre‑billing reports, invoices and records relating to work done and the payment of invoices;
(e)further and alternatively, the Practitioner thereafter continued to fail and refuse to comply with the Document Summons.
GROUND 4
That the Practitioner, from 28 February 2017 and continuing during the investigation by the Committee of the Complaint and the Conduct Investigation, engaged in professional misconduct within the meaning of sections 403, 404(a) and 438 of the Act, in that his conduct fell short consistently and by a substantial degree of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence such that he is not a fit and proper person to engage in legal practice within the meaning of section 403(1)(b) of the Act, further and alternatively was contrary to section 520(5) of the Act, further and alternatively was a contravention of his obligation under section 532(3)(b) of the Act by, without reasonable excuse, and for the purpose or a substantial purpose of seeking to frustrate or hinder the Committee's investigation into the Complaint and/or the Conduct Investigation, failing to comply with a summons served on the Practitioner by the Law Complaints Officer pursuant to sections 520(1)(c) and (d) and 520(3) of the Act dated 17 January 2017 and varied on 8 and 17 February 2017 for the provision of written information verified by statutory declaration (the Information Summons) and returnable at 4pm on 8, then varied to 15 and 28 February 2017, in that:
(a)the Practitioner failed to comply with the Information Summons at all by 4pm on 28 February 2017;
(b)further and alternatively, under cover of a letter dated 13 April 2017 the Practitioner provided to the Committee a statutory declaration of the Practitioner made on 13 April 2017, by which the Practitioner purported to object to providing any of the information required by the Information Summons and failed to provide that information save only to admit (which did not constitute compliance or purported compliance with the Information Summons) that he (the Practitioner) was "responsible from a professional point of view for all correspondence that is prepared and sent on my files", when the Practitioner had no or no reasonable basis for objecting to providing the information required by the Information Summons;
(c)further and alternatively, the Practitioner thereafter continued to fail and refuse to comply with the Information Summons at all.
The statutory regime and the burden and standard of proof
The proceedings were commenced by the applicant by a referral to the Tribunal under s 428(1) of the LP Act. Section 438(1) of the LP 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'.
Section 402 and s 403 of the LP Act contain non‑exhaustive definitions of the terms 'unsatisfactory professional conduct' and 'professional misconduct', respectively.[27] 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.
[27] Appeal Decision at [197].
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.
Each of the four summonses issued to the respondent was issued pursuant to s 520 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.
Section 532 of the LP Act is headed 'Obligations of Australian lawyers'. It 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.
As to the burden and standard of proof, the Tribunal said the following in Chang, which we adopt:[28]
The Committee bears the onus of proof in relation to the allegations of professional misconduct it makes against the practitioner. The civil standard of proof ('on a balance of probabilities') applies together with the Briginshaw approach, which requires clear and cogent evidence to be adduced by the Committee and for the Tribunal to feel an actual persuasion of the occurrence or existence of relevant facts before it can find the practitioner guilty of professional misconduct (or unsatisfactory professional conduct). The Briginshaw approach applies in disciplinary proceedings, because of the nature and seriousness, and potential consequences, of allegations of wrongdoing (or incompetence) made in such proceedings. As Dixon J said in Briginshaw 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.
[28] Legal Profession Complaints Committee and Chang [2019] WASAT 67 (Chang) at [8].
In these reasons, when we express ourselves to be 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 Briginshaw.[29]
[29] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw).
Brief procedural history and description of the hearing
The Appeal Decision was handed down on 31 August 2022. The hearing before us was held on 22 and 23 February 2023.
In between those dates, the respondent made several applications for orders that would have required, amongst other things, the refiling of the applicant's Grounds in a document separate from the original application, the refiling of the applicant's bundle of documents, and the provision by the applicant of particulars of the four remitted Grounds. The respondent also sought an order vacating the hearing. For reasons given at the time in each case, each application was refused.[30]
[30] On 26 May 2023, the Court of Appeal dismissed an application lodged by the respondent for the review of a Court of Appeal Registrar's decision to refuse to accept an 'appellant's case' for filing. By the proposed appellant's case in question, the respondent sought to appeal against the President's decision of 2 February 2023 to refuse, amongst other things, his application for orders that the applicant 'file and serve an amended complaint, an amended statement of facts and contentions for each complaint and a fresh book of documents [and] ... that the [applicant] identify the particulars and, further or alternatively, the facts and contentions by which it advanced one of its allegations as to the [respondent's] alleged conduct': Lourey v Legal Services and Complaints Committee [2023] WASCA 90 at [11].
As will be described in more detail below, the respondent continued to insist that orders consistent with those previously, but unsuccessfully, sought should be made and that the result of the failure to make such orders rendered the hearing unfair.
At the hearing, the applicant tendered part of the Applicant's Bundle of Documents (Exhibit 1) that it had originally relied on in the first instance hearing, which contained those documents relating to the remitted Grounds.[31] In addition, the respondent tendered his Respondent's Bundle of Documents (Exhibit 2) which was contained in two separate parts.[32] The first part consisted of 65 documents, all but the final two of which were duplicates of documents contained in the Applicant's Bundle of Documents. The second part consisted of those documents provided to the applicant by the respondent in purported compliance with the 4 January Document Summons and the 17 January Document Summons.
[31] Exhibit 1.
[32] Exhibit 2.
As was the case in the first instance hearing, no witness gave evidence. Both parties filed and relied upon written submissions and both parties made oral submissions. More precisely, at the hearing, the respondent advised the Tribunal he did not wish to make oral submissions, but in order to understand his written submissions the Tribunal asked the respondent a series of questions, the answers to which we have taken as his oral submissions.
Following the hearing, the respondent applied for leave to file and serve written closing submissions, notwithstanding that:
(a)he had filed a written 'Respondent's Outline of Submissions (For Hearing 22 February 2023)' (Outline) on 20 February 2023;
(b)he had filed a further set of written submissions headed 'Respondent's Submissions' (Further Submissions) on 23 February 2023, being the second day of the hearing; and
(c)he had, as stated above, said that he did not wish to make any oral submissions.
In his Interim Application lodged on 10 March 2023, the respondent stated that the grounds on which that application was based were that he had, in effect, changed his mind; that he had originally stated that he '… did not wish to make any oral closing submissions' but that, on review he 'decided that he did wish to make closing submissions, but wished to do so in writing …'.
Under the heading 'Reasons for Interim Application', the respondent said that he '… seeks the opportunity to respond to the closing submissions of the Applicant, as well as the matters raised with him [the respondent] by the Tribunal after his [the respondent's] (written) submissions were tabled …' and that he '… is entitled to make closing submissions, and all that has occurred here is a change of decision … after a few days review following the conclusion of the Hearing'.
The applicant resisted the Interim Application, which it described, in brief written submissions, as an attempt to reopen the respondent's case.[33]
[33] Applicant's Outline of Submissions in Opposition to Application for Leave to File Further Written Submissions dated 14 March 2023.
We dismissed the Interim Application on 17 March 2023. We indicated that we would give our reasons in the course of our written reasons in relation to the remitted grounds. Our reasons for dismissing the Interim Application were:
(a)First, as a matter of principle, a party may not file written submissions after the conclusion of oral argument without leave to do so.[34]
[34] Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 258 (Mason J); Legal Practitioners Complaints Committee v Camp [No 2] [2010] WASC 207 at [9] (Full Bench).
(b)Secondly, we were satisfied that there was no good reason for leave to be given;
(i)The respondent (a legal practitioner) made a forensic decision at the hearing to not make any oral submissions in closing. In those circumstances, it was for him to identify a reason to be allowed to depart from that decision.
(ii)Two possible reasons were given in the Interim Application. First, the respondent said that he 'seeks the opportunity' to respond to the applicant's closing submissions and matters raised with him by the Tribunal. That suggested that he was denied an opportunity to do so at the hearing. We do not accept that is so. Indeed, elsewhere in the Interim Application the respondent acknowledged that he was invited to make closing submissions at the hearing and chose not to do so.
(iii)The second reason given by the respondent in the Interim Application was that he had changed his mind.
(iv)That change of mind occurred in the context of his filing additional written submissions just before the start of the second day of the hearing, on 23 February 2023. That was, in fact, after the applicant had closed its case. Having done so, the respondent stated that he did not wish to speak to those new submissions. He then agreed to answer questions put to him by the Tribunal that were designed to understand both sets of written submissions.
(v)We were satisfied that the respondent had been given sufficient, indeed more than sufficient, opportunity to put his case.
(c)Thirdly, we agreed with the applicant's submission that there was nothing in the Interim Application filed by the respondent, or otherwise, to suggest that any further submissions filed by the respondent would take his case any further. The Interim Application did not identify any particular matter which the respondent said should be, but had not been, addressed.
(d)Finally, given the lack of any indication as to the subject matter which might be addressed, we accepted the applicant's submission that the grant of leave may result in the need for the applicant to file further submissions in reply and, perhaps, may require us to reconvene a further oral hearing.
(e)In short, the respondent had ample opportunity to put his case, he had not identified any basis for the grant of leave, and if leave was to be granted, it may lead to the need for further procedural steps or for a further hearing. For those reasons, we dismissed the Interim Application.
The applicant's case
As noted above, the applicant called no witnesses and tendered no affidavit evidence. Rather, its case was based entirely on the documents tendered in evidence and, where necessary, the inferences that it submitted should be drawn from them.
The applicant's case was, in effect, as follows:
(a)in order to investigate whether the writing and sending of each of the letters dated 2, 17 and 29 June 2016, and 22 March 2016, 11 and 12 May 2016, and 7 September 2016, and 6 and 13 October 2016 (letters) amounted to professional misconduct or unsatisfactory professional conduct by the respondent, it was necessary for the applicant to identify whether in fact the respondent was the author of each of the letters and the circumstances in which each of the letters was sent;
(b)each of the four summonses sought documents and information that would assist the applicant to identify the author of the letters sent and the circumstances in which they were sent;
(c)it was therefore necessary for each of the questions to be answered by the respondent and for the respondent to provide the documents sought;
(d)the exchange of correspondence between the parties clearly demonstrated that, instead of answering the questions asked and providing the documents sought, the respondent:
(i)sought additional information and/or particulars;
(ii)requested additional time to comply;
(iii)asserted that some or all of the matters sought went beyond the scope of the investigation and were therefore irrelevant;
(iv)insisted that at all times he intended to comply with each summons;
(v)sought advice as to how each summons may be challenged; and
(vi)provided some degree of limited compliance with each summons;
(e)the respondent's failure to comply with the terms of the summonses occurred:
(i)without reasonable excuse; and
(ii)for the purpose, or the substantial purpose, of frustrating or hindering the applicant's investigations of the complaints which went to whether or not the respondent, as the apparent writer of each of those letters, had engaged in professional misconduct or unsatisfactory professional conduct;
(f)the respondent's failure to comply with the summonses for that purpose amounted to professional misconduct.
It is necessary to say something here about the way in which the applicant submitted that the respondent's failure to comply with the summonses without reasonable excuse and for that purpose amounted to professional misconduct.
Each of the four Grounds put by the applicant against the respondent contains three limbs. Counsel for the applicant, Mr Cobby SC, confirmed in his oral opening submissions that the applicant relied upon each of those three limbs.[35]
[35] ts 13 – 14, 22 February 2023.
The first limb in each case is that the respondent's conduct:
… fell short consistently and by a substantial degree of the standard [of] professional conduct observed and approved by members of the legal profession of good repute and competence and would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence such that he is not a fit and proper person to engage in legal practice within the meaning of section 403(1)(b) of the Act, …
On one reading, that single limb contains aspects of the following:
(a)The statutory definition of professional misconduct in s 403(1)(a) of the LP Act, which in turn picks up the definition of 'unsatisfactory professional conduct' in s 402 of the LP Act, provides that where such conduct 'involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence', it will amount to professional misconduct;
(b)The first limb of the Kyle test: conduct that would reasonably be regarded as disgraceful or dishonourable to practitioners of good repute and competence; and
(c)The statutory definition of professional misconduct in s 403(1)(b) of the LP Act: conduct that 'would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice'.
However, in his opening submissions, Mr Cobby SC said that the applicant's case was that the respondent had, relevantly:
… engaged in professional misconduct because he contravened the common law test, but if he does not do that then he contravened the statutory test in 4031B [i.e. s 403(1)(b)] in any event, as contained within the ground.[36]
[36] ts 13, 22 February 2023.
That submission left no doubt that the applicant's case does not purport to engage with the statutory definition in s 403(1)(a) (nor, in turn, s 402).
The submission plainly accords with a close reading of the Grounds. While they describe the respondent's alleged conduct using some of the language of s 403(1)(a) ('consistently and by a substantial degree'), the Grounds do not use the language of competence and diligence, which is what characterises s 403(1)(a) and distinguishes it from s 403(1)(b).
Rather, the first limb of each Ground alleges that the respondent engaged in professional misconduct on two alternative bases. First, the applicant alleges that the respondent’s conduct fell short of the standard of practitioners of 'good repute and competence' and would be considered by them as disgraceful or dishonourable. That clearly and unambiguously references the first limb of Kyle.
The first limb of each Ground alternately alleges that the conduct is such that the respondent is not a fit and proper person, which is a reference to the definition of professional misconduct in s 403(1)(b).
As we will discuss in more detail below, there may be an argument that the Kyle 'test' is not separate and distinct from the 'fit and proper person' test in s 403(1)(b). But any such argument was answered, conclusively, by decisions of the Court of Appeal which bind us.
The second limb of each Ground is that the respondent's conduct amounted to professional misconduct because it was contrary to s 520(5) of the LP Act. That subsection makes failure to comply with a direction contained in a summons issued under s 520(1) of the LP Act an offence. Section 404(a) of the LP Act provides that 'conduct consisting of a contravention of this Act' may amount to professional misconduct.
The third limb is that the respondent's conduct amounted to professional misconduct because it contravened 's 532(3)(b)' of the LP Act.
It is clear that the applicant's reference to 's 532(3)(b)' of the LP Act in each of the Grounds is a typographical error; it is plain that it should be a reference to s 532(3)(a). Nothing turns on this. The respondent did not bring it to our attention or otherwise seek to rely upon it. Neither did the applicant seek to amend the Grounds. It is, in our view, plainly a 'slip' and we will proceed on the basis that each Ground refers to s 532(3)(a).
That subsection requires compliance with a direction contained in a summons issued under s 520(1) of the LP Act unless there is a 'reasonable excuse' for that failure. As will be seen below, the respondent claims that he has a reasonable excuse. Accordingly, this limb requires the applicant to prove both that there was a failure to comply with the relevant summonses and that there was no reasonable excuse for that failure.
The third limb also includes the additional element that the respondent's failure to comply with the summonses was 'for the purpose or a substantial purpose of seeking to frustrate or hinder the Committee's investigation'. However, in opening, Mr Cobby SC agreed that 'in fairness to [the respondent]', the applicant's case was put on the basis that each of the three limbs would rise or fall on whether that allegation, as to the respondent's purpose, was made out.[37]
[37] ts 15 – 16, 22 February 2023.
The respondent's case
The respondent filed a 'Response to Grounds 2 and 3 of Annexure A, and Grounds 3 and 4 of Annexure B' on 17 February 2023 (Response of 17 February 2023). Paragraph 3 of that Response stated that the respondent 'refers to and incorporates his Responses' to the relevant complaints previously filed with the Tribunal on 13 August 2018 and 7 November 2018.
For present purposes, the Response of 13 August 2018 was, in effect, limited to a denial of each of the allegations in the Grounds.
The 7 November 2018 Response is, relevantly for present purposes, set out at paragraphs which are repeated in the Response of 17 February 2023 and it is unnecessary to address them separately.
The Response of 17 February 2023 contains separate defences in relation to each of the 4 January Summonses[38] and combines the defence in relation to both the 17 January Summonses.[39] There is considerable overlap between the various summonses, but they are not the same. In order to put the respondent's case at its highest, we have taken the following to represent his case in relation to each of the four summonses:
(a)First, he denies 'each and every allegation and assertion' made against him;[40]
(b)Secondly, he says that, in respect of at least some aspects of the summonses, he tried to comply (and, for example, sought extensions of time) but there were various (practical) difficulties with doing so;[41]
(c)Thirdly, he says that the information sought (and some of the documents sought) was not relevant;[42]
(d)Fourthly, he says that he had a reasonable excuse for not complying with the summons in that the only material (documents and information) that was not provided was, in his view, irrelevant to the applicant's investigations of him;[43] and
(e)Fifthly, he denies that he failed to comply with the relevant summonses for the purpose of seeking to frustrate or hinder the applicant's investigation of him.[44]
[38] Para 11 is in relation to the 4 January Information Summons and para 12 is in relation to the 4 January Document Summons.
[39] Response of 17 February 2023, para 14.
[40] Response of 17 February 2023, para 9.
[41] Response of 17 February 2023, paras 11.2, 12.3 – 12.5, 12.7, 14.4 and 14.6 – 14.12.
[42] Response of 17 February 2023, paras 11.3, 12.1 – 12.2, 14.2 and 14.4 – 14.5.
[43] Response of 17 February 2023, paras 11.4, 12.6, 14.3 and 14.13.
[44] Response of 17 February 2023, paras 11.1 and 14.1.
One aspect of the respondent's case described above is that he tried, at least in part, to comply with the summonses. That submission appears to go, at least in part, to that part of the two Document Summonses which sought 'a complete audit trail' and 'all metadata and other data available on the computer system'.
None of the four Grounds against the respondent allege failure to comply with those aspects of the two Document Summonses, and at the hearing, Mr Cobby SC confirmed that the applicant's case did not include any allegation that the respondent had failed to comply with those parts of the Document Summonses.[45]
[45] ts 38, 22 February 2023.
As previously noted, the respondent also filed written submissions, namely an Outline and Further Submissions.
Both the Outline and the Further Submissions were consistent with the respondent's case described above, save that they added one further aspect, which is described below.
The Outline began by objecting to the hearing proceeding on the basis that the respondent submitted that it would be unfair to proceed unless and until the orders that he had previously, and unsuccessfully, sought, had been made and complied with.[46]
[46] Outline, para 1.
Secondly, the Outline submitted that the application as a whole must be refused on the basis that it was inconsistent with the findings of the Court of Appeal.[47] The submission turned on the meaning of para [264] of the reasons given by the Court of Appeal in the Appeal Decision. We will refer to this aspect of the respondent's case as the 'Para [264] Defence'.
[47] Outline, paras 3 – 11.
The third submission made was that the various summonses went beyond the scope of the applicant's investigation of the respondent and, therefore, sought documents and information that were irrelevant.
In this regard, the respondent referred to, and relied upon, submissions made by his counsel (Mr Watters) in the First Instance hearing.[48] Those previous submissions were set out in transcript attached to the Outline. They refer to three decisions and say that, in effect, objection may be taken to the validity of a summons to produce documents or information on the basis of relevance.
[48] Outline, para 13.
Those submissions were, however, made prior to the decision in 2019 of Strk AJ (as her Honour then was) in Legal Profession Complaints Committee v Lourey[49] (Lourey 2019) which held that the only manner in which the validity of a summons under s 520 of the LP Act may be challenged is by judicial review proceedings.
[49] Legal Profession Complaints Committee v Lourey [2019] WASC 62 (Lourey 2019).
The respondent's Outline submitted that (ir)relevance was a proper basis to challenge a summons and that, consistent with the decision in Lourey 2019, such a challenge can only occur by judicial review proceedings.[50]
[50] Outline, paras 14 – 34, especially para 32.
The respondent accepted that he had not sought to challenge the validity of any of the four summonses by way of judicial review. What was not addressed in the Outline, nor explained in the course of the respondent's exchanges with the Tribunal in the hearing, was how he could maintain his defence (that the summonses sought irrelevant material) when he had not challenged the validity of the summonses.
The fourth submission in the Outline was that no actual frustration of the investigation had actually occurred.[51]
[51] Outline, paras 35 – 39.
Finally, the Outline submitted that the Kyle test no longer exists, having been 'extinguished' by a date no later than the proclamation of the LP Act.[52]
[52] Outline, paras 41 – 42.
The Further Submissions were filed and served immediately before the start of the second day of the hearing, after Mr Cobby SC had closed the applicant's case. The respondent submitted that what had occurred on the first day of the hearing was 'exactly' what the respondent had 'been concerned about' in previously seeking orders for the refiling of the allegations and particulars.[53]
[53] Further Submissions, para 3.
In this regard, the respondent submitted that the 'indictment (sic) was impossible to understand', although that submission was not particularised.
As we have found above, a careful but fair and reasonable reading of the allegations discloses a clear understanding of the case put by the applicant against the respondent. We do not accept that the allegations are 'impossible to understand'.
The only complaint made by the respondent in the Further Submissions that was not merely a broad, generalised statement, concerned the admission into evidence of the Applicant's Bundle (Exhibit 1), which the respondent submitted contained irrelevant material.
Specifically, the respondent submitted that any documents that were created outside of the 'bookend' dates of 4 January 2017 (the date of the first two summonses) and 21 July 2017 (the date on which the respondent determined to refer the matter to the Tribunal) were, by that fact (i.e. that they fall outside those dates), irrelevant.[54]
[54] Further Submissions, para 7.
We reject the submission that documents created prior to the date on which a summons was issued cannot be relevant to the question whether the respondent has complied with that summons (and the consequences of non‑compliance). Without an understanding of the factual matrix within which a summons was issued, the summons itself, and any failure to comply with it, cannot be understood.
The Further Submissions then repeated the Para [264] Defence[55] and, then, the inconsistent submissions that: (1) the summonses went beyond what was relevant for the applicant's investigation; and (2) that a challenge to the summonses' validity could only be made by judicial review.[56] In addition, they alleged that the respondent honestly believed that he was professionally responsible for all correspondence prepared and sent by Chapmans.[57]
[55] Further Submissions, para 13.
[56] Further Submissions, paras 14 – 21.
[57] Further Submissions, para 25.
The Further Submissions then set out a long list of findings of fact, which were said to be supported by the evidence. Those findings were effectively a chronological summary of the various documents. The respondent then submitted that the evidence 'supports a range of inferences, none of which include' the inference which the applicant submitted was the only inference available, namely that the respondent's purpose in failing to comply with the summonses was to frustrate or hinder the applicant's investigations.[58]
[58] Further Submissions, para 23.
Despite asserting that a 'range of inferences' were open, only one was stated:
… that it was always the intention of the Respondent to comply with the Summonses issued by the Applicant, subject only to his challenge as to relevance, and that he did comply with each of the Summons (sic) (albeit 'tardy', as Mr Watters submitted …).[59]
[59] Further Submissions, paras 22 – 24. Also, along the same lines, para 27.
Next, the Further Submissions, in effect, repeated that there was no evidence that the applicant's investigation was, in fact, frustrated.[60]
[60] Further Submissions, paras 28 – 37 and 39 – 42.
We will not set out in detail this aspect of the respondent's case because it is not necessary for the applicant to demonstrate that the investigation was, in fact, hindered or frustrated. The gravamen of each Ground is that the respondent's purpose (or substantial purpose) was to frustrate or hinder the applicant's investigation of the complaints against him.
Equally irrelevant is the respondent's submission that the applicant has not put forward a motive for the respondent to frustrate or hinder the investigation.[61] It is not necessary for the applicant to put such a motive forward because it is not an element of any of the Grounds. But, in any event, the respondent's motive is self‑evident; the respondent was being investigated by his professional regulator, and frustrating or hindering that investigation may have delayed the making of decisions adverse to the respondent's interests.
[61] Further Submissions, para 41.
The Further Submissions also complained that the applicant had not identified any documents that were, in fact, missing from the documents provided by him.[62]
[62] Further Submissions, para 38.
As a matter of fact, that is not correct. Paragraphs (b)(ii) and (d)(i) and (ii) of both Ground 2 of Annexure A and Ground 3 of Annexure B all identify classes of documents that, it is alleged, were sought by the relevant summons but were not provided by the respondent.
Further, in his opening submissions, Mr Cobby SC specifically referred to the respondent's failure to provide timesheets,[63] being documents that were sought by both Document Summonses because they were likely to identify the practitioners who worked on the production of the letters the subject of investigations.
[63] ts 38, 22 February 2023.
At the hearing, the respondent:
(a)agreed that he failed to comply with both the 4 January Document Summons and the 17 January Document Summons, in that he failed to provide the entire Chapmans file for Mr S or Mr F and he failed to provide any original documents;[64]
[64] ts 102 – 103, 23 February 2023.
(b)agreed that he failed to comply with both the 4 January Information Summons and the 17 January Information Summons, in that he failed to answer the questions posed by the applicant;[65]
[65] ts 104 – 105, 23 February 2023.
(c)submitted that he had a reasonable excuse, pursuant to s 532(3)(a) of the LP Act, for such noncompliance, in that (and only that) the documents and information sought were not relevant to the complaint being investigated in each case; [66]
[66] ts 106 – 107 and ts 111 – 112, 23 February 2023.
(d)agreed that the only legitimate manner in which the relevance of documents or information sought under a summons issued under s 520 of the LP Act may be challenged is by judicial review proceedings[67] and that at no stage did he commence such proceedings by way of challenge but submitted that a 'reasonable excuse' must be assessed as at the time of the failure to comply;[68]
(e)acknowledged that any 'reasonable excuse' for the purposes of s 532(3)(a) of the LP Act must be assessed on the objective facts,[69] rather than on the practitioner's subjective state of mind, but also (and inconsistently), submitted that his own knowledge as to the state of the law evolved over time in that the decision in Lourey 2019 clarified matters;[70]
(f)submitted that none of the summonses were relevant in that they went beyond the scope of the proper investigation of the complaints against him. That was so, he submitted, because the identity of the writer of the relevant letters was not relevant because the LP Act (at s 105 and s 106) provides for a legal practitioner to be legally responsible for all correspondence sent from an incorporated legal practice;[71]
(g)made submissions as to the Para [264] Defence. In particular, he submitted that:
(i)the applicant's case rests on a submission that there is only one inference to be drawn as to the purpose for which he failed to comply with the relevant summonses;
(ii)the Court of Appeal at para [264] of the Appeal Decision said that there was more than one inference that might be drawn as to both intermediate findings and the ultimate finding of fact; and
(iii)therefore, that the whole of the case against him must fail;[72]
(h)as to the purpose for which he failed to comply with the relevant summonses, submitted that the evidence allowed inferences other than that he sought to frustrate or hinder the applicant's investigation. However, the respondent was unable to identify evidence (save to point to all of the evidence in its entirety) that he said supported such an alternative inference.[73]
[67] As per Lourey 2019.
[68] ts 107 – 108, 23 February 2023.
[69] ts 109, 23 February 2023.
[70] ts 106 – 109, 23 February 2023.
[71] ts 115 – 116, 23 February 2023.
[72] ts 119 – 123, especially 121, 23 February 2023.
[73] ts 124 – 125, 23 February 2023.
The issues in dispute
Having regard to the above matters, we are of the view that there are only six issues that require determination:
(1)Pursuant to the Para [264] Defence, must the applicant's case inevitably fail?
(2)If the answer to Question 1 is 'no', did the respondent fail to comply with each of the four summonses?
(3)If the answer to the Question 2 is 'yes', did (or does) the respondent have a reasonable excuse for that failure?
(4)Was it the respondent's purpose (or substantial purpose) in failing to comply with the summonses to frustrate or hinder the applicant's investigation of the complaints against him?
(5)Does the Kyle test form part of the test of 'professional misconduct', given the statutory definition in s 403 of the LP Act?
(6)Does the respondent's conduct, when seen in light of the findings associated with the previous issues, constitute professional misconduct under any or all of the three limbs of each Ground?
Question 1: Pursuant to the Para [264] Defence, must the applicant's case inevitably fail?
In the Court of Appeal, the applicant sought orders which, if granted, would have seen the Court substitute its own orders for those of the Tribunal. Specifically, the applicant sought orders to the effect that the respondent's conduct in relation to the four summonses amounted to professional misconduct in the three senses, one of which was the Kyle sense. Those orders were in terms that are identical to the four Grounds now pursued by the applicant.[74]
[74] Appeal Decision at [141] – [143].
At para [264] of its reasons, the Court refused to make those orders because, amongst other things, it was:
… not satisfied that the intermediate findings of fact sought by the Committee are the only facts that are open to be found. Also, we are not satisfied that the ultimate conclusions to be drawn by the Committee from those intermediate findings of fact are the only ultimate conclusions that are open to be drawn.
The respondent says that those findings are inconsistent with the applicant's case. He says that the applicant's case is that the only inference to be drawn from the written material is that the purpose, or substantial purpose, of the respondent's refusal to comply with the summonses was to frustrate or hinder the applicant's investigation of him. He says that the Court's finding that other inferences are open has the result that the applicant's case must be dismissed.
The short answer to that submission is that it is inconsistent with the Court of Appeal's remittal of the matter. If the Court of Appeal was of the view that any or all of the four Grounds put by the applicant were not open, then it would not have remitted that or those Grounds to be reheard by the Tribunal.
Equally, the submission misunderstands the Court of Appeal's reasons in para [264].
In that paragraph, the Court of Appeal drew a distinction between the ultimate conclusion that may be reached (a finding of professional misconduct, or pursuant to s 442 of the LP Act, a finding of unsatisfactory professional conduct) and the intermediate findings of fact that may be reached, upon which that ultimate conclusion is based. The Court of Appeal held that in neither case was the evidence such that only one finding was possible.
The inference which the applicant invites us to draw goes to the purpose of the respondent in failing to comply with the relevant summonses. The applicant says that the only inference that can be drawn from the evidence is that the respondent failed to comply with each summons for the purpose (or substantial purpose) of frustrating or hindering the applicant's investigation of his conduct.
The finding based on such an inference is only one of several relevant intermediate findings of fact which, if found, might be relied upon to reach an ultimate conclusion. Obviously, another intermediate fact that must be determined is whether the respondent did, in fact, fail to comply with one or more of the summonses.
As such, there is nothing in para [264] which precludes the applicant's submission that the inference in question is the only one open. Para [264] does not say anything to the contrary. Rather, that paragraph was concerned with a range of matters, not just the inferences that were open as to the respondent's purpose.
Accordingly, we do not accept that we are precluded from considering and determining the remitted Grounds. Rather, consistent with the Court of Appeal's remittal, we are bound to do so.
The answer to Question 1 is no.
Question 2: Did the respondent fail to comply with each of the four summonses?
As noted above, at the hearing the respondent admitted that he did not comply with the two Document Summonses, in that he did not provide the whole of each of the Chapmans files and he did not provide the original of any documents.[75]
[75] ts 101 – 103, 23 February 2023.
At the hearing, the respondent also admitted that he did not comply with the two Information Summonses, in that he failed to answer the four questions posed.[76]
[76] ts 104 – 105, 23 February 2023.
The admissions made by the respondent during the hearing were contrary to the denials contained in the respondent's various Responses. Further, they were not given in evidence but were, rather, given from the bar table. On the other hand, the respondent is an experienced legal practitioner and is, of course, best placed to know what he did or did not do. In those circumstances, there was no basis to doubt that the respondent's admissions were factually justified,[77] nor was it submitted that we could not proceed on the basis of our acceptance of the respondent's oral admissions.[78]
[77] cf Comcare v Fiedler [2001] FCA 1810; 115 FCR 328 at [41].
[78] cf Australian Securities and Investments Commission v Select AFSL Pty Ltd (No 2) [2022] FCA 786; 162 ACSR 1 at [296].
The respondent's admissions are enough to answer Question 2 favourably for the applicant. On the basis of the respondent's admissions, we are satisfied, and we find, that he failed to comply with each of the four summonses.
That said, we have not relied solely on the respondent's admissions. Rather, we have considered the documentary evidence contained in Exhibit 1 and Exhibit 2. On the basis of that documentary evidence alone, we are also satisfied, and we find, that the respondent failed to comply with each of the four summonses.
The documentary evidence as to Grounds 2 and 3 in Annexure A (the 4 January Summonses) is as follows:
(a)On 8 February 2017, being the day on which compliance with the 4 January Summonses was due, the respondent wrote to the applicant seeking various documents and said that once those documents were received 'we will fully respond … unless the details and particulars … are still unclear.'[79]
[79] Exhibit 1, page 40.
(b)The applicant responded by letter of the same day (8 February 2017) and extended the date for compliance to 15 February 2017.[80]
[80] Exhibit 1, pages 41 – 44.
(c)On 15 February 2017, the respondent acknowledged the 8 February 2017 letter, said that he had 'preliminary draft submissions' ready to send, but sought 'further particulars of the Complaint' as well as a further extension of time.[81]
[81] Exhibit 1, pages 45 – 46.
(d)On 17 February 2017, the applicant provided 'one last extension of time' to 28 February 2017 and advised, in effect, that as the applicant was conducting an investigation, no findings had, at that stage, been made so that there were no particulars of the Complaint that could be provided.[82]
[82] Exhibit 1, pages 47 – 51.
(e)On 28 February 2017, being the final day of the final extended period for compliance, the respondent advised that, without accepting the adequacy of the particulars provided, he would 'now finalise [his] submissions' but sought a further extension of time.[83]
[83] Exhibit 1, page 52.
(f)On the same day, the respondent wrote again to the applicant, advising that:
(i)He would, by not later than 3 March 2017, provide 'the entire original file', but only from 2 June 2016 to 29 June 2016, and not to 1 August 2016 as documents subsequent to 29 June 2016 'can hardly be relevant to the complaint'; and
(ii)He declined to respond to the 4 January 2017 Information Summons as it was, in his view, irrelevant to the Complaint, and noted that, pursuant to s 584 of the LP Act, he was 'responsible from a professional point of view for all the work done on my files'.[84]
[84] Exhibit 1, pages 55 – 56.
(g)On 1 March 2017, the applicant wrote to the respondent noting, amongst other things, the respondent's 'continued non‑compliance' with the two 4 January Summonses, which it regarded as 'an ongoing breach' of his obligations under the LP Act, the irrelevancy of s 584 of the LP Act to the investigation of the respondent, and that the respondent had not acted to have the summons set aside.[85]
[85] Exhibit 1, pages 57 – 58.
(h)By letter of 3 March 2017, the respondent wrote to the applicant continuing to insist that the information sought was irrelevant and asserting that the conclusions drawn in the applicant's previous letters, to the effect that he was in breach of his obligations under the LP Act by failing to comply with the summonses, did 'not reflect [his] intent'.[86]
[86] Exhibit 1, pages 59 – 60.
(i)On 8 March 2017, the respondent provided the applicant with a 'bundle of copied relevant documents' and said that he was still 'considering the relevance of any other documents (if they exist)'.[87] As we explain below, the production of those documents did not constitute compliance with the Document Summonses.
[87] Exhibit 1, page 61.
(j)On 14 March 2017, the respondent wrote again to the applicant and advised that although he had made 'a number of enquiries' he remained unclear as to the process to set aside the summonses but, despite that, he would 'nonetheless provide the Statutory Declaration as requested'. He apologised for the delay and advised the submissions would be provided by 20 March 2017.[88]
[88] Exhibit 1, page 62.
(k)On 29 March 2017, in response to further correspondence from the applicant, the respondent wrote both insisting that he had complied with the 4 January Document Summons and, in relation to the 4 January Information Summons:
(i)insisted that it sought irrelevant material and was therefore beyond power;
(ii)insisted that he 'never had any intention to not comply with [that] Summons'; and
(iii)said that he anticipated providing his submissions by 10 April 2017.[89]
(l)On the same date, the applicant wrote to the respondent, advising, amongst other things, that he remained in default of compliance with both 4 January Summonses and that, at least in relation to the 4 January Information Summons, the ongoing 'failure to respond … in a full and accurate manner is hindering the [applicant's] ongoing investigation of this complaint.'[90]
(m)On 12 April 2017, the respondent wrote to the applicant and advised that the statutory declaration sought would be provided by 13 April 2017, insisted that the applicant 'otherwise understand[s] the reasons [he had] not previously provided that document' and stated that he would provide the statutory declaration 'solely in response to the pressure [the applicant was] applying to [him] to complete it'.[91]
(n)On 13 April 2017, the respondent wrote to the applicant and provided both a statutory declaration and an Outline of Submissions. The statutory declaration:
(i) stated, several times, that the information sought was irrelevant;
(ii) appeared to suggest that the applicant was to blame for failing to advise the respondent how to apply to set aside the summonses; and
(iii) stated, in specific answer to each of the items of the 4 January 2017 Information Summons that the respondent 'object[s] to providing the information requested on the ground of relevance'.[92]
[89] Exhibit 1, pages 69 – 70.
[90] Exhibit 1, pages 66 – 68.
[91] Exhibit 1, pages 71 – 73.
[92] Exhibit 1, pages 76 – 86.
In short, the respondent sent 10 pieces of correspondence which sought, by various means (seeking further information and particulars, seeking extensions of time, arguing about relevance, and suggesting that he would seek to set aside the summonses) to avoid providing the documents and information sought and, in the end, having delayed matters well beyond the deadline as extended several times, simply refused to do as required.
The documentary evidence as to Grounds 3 and 4 in Annexure B (the 17 January Summonses) is very similar. Most relevantly, identical, or nearly identical, correspondence passed between the parties on 8 February 2017;[93] 15 February 2017;[94] 17 February 2017;[95] 28 February 2017;[96] 1 March 2017;[97] 3 March 2017;[98] 8 March 2017;[99] 14 March 2017;[100] 29 March 2017;[101] 12 April 2017;[102] and 13 April 2017.[103]
[93] Exhibit 1, page 170, 171 – 174.
[94] Exhibit 1, page 175 – 177.
[95] Exhibit 1, page 179 – 184.
[96] Exhibit 1, page 185, 188 – 189.
[97] Exhibit 1, page 190 – 191.
[98] Exhibit 1, page 192 – 193.
[99] Exhibit 1, page 194.
[100] Exhibit 1, page 195.
[101] Exhibit 1, pages 200 – 204.
[102] Exhibit 1, pages 205 – 207.
[103] Exhibit 1, pages 209 – 223.
Although the respondent provided some additional documents to the applicant, under cover of letters dated 18 July 2017 and 20 July 2017, for the reasons explained below, the provision of those documents did not result in compliance with the Document Summonses (and in any event, such documents were provided well past the extended deadline for compliance with the Document Summonses).
Accordingly, we are satisfied, and we find, that the respondent has failed to comply with each of the four summonses: namely the 4 January Document Summons; 4 January Information Summons, the 17 January Document Summons, and the 17 January Information Summons.
We explain the bases for those conclusions in more detail below.
Specific findings as to failure to comply with 4 January Document Summons
We are satisfied that the applicant has proven, to the relevant standard, all of the allegations set out at paras (a) to (e) in Ground 2 of Annexure A, for the reasons set out below.
In making findings in relation to the 4 January Document Summons, we have taken into account the evidence produced by the respondent in Exhibit 2 (tab B), which he informed the Tribunal consisted of copies of all documents he produced to the applicant. In relation to Ground 2 of Annexure A, those documents pertained to the complaint concerning the respondent's conduct in the course of acting for his client, Mr S. The documents the respondent says he produced to the applicant were produced under cover of the respondent's letters dated 8 March 2017 and 18 July 2017.
Turning first to the allegation in para (a) of Ground 2, we are satisfied, and we find, that the respondent failed to comply, at all, with the 4 January Document Summons by 4 pm on 28 February 2017, being the final deadline imposed by the applicant for compliance. So much is evident in the respondent's own letter of 28 February 2017 summarised above. It is also confirmed by Exhibit 2 tab B, which indicates that the respondent first provided some documents to the applicant under cover of his letter of 8 March 2017, after the extended deadline for compliance with the 4 January Document Summons.
Secondly, turning next to the allegations in para (b) of Ground 2, they are, in summary, that, by his letter of 28 February 2017, the respondent expressly refused to produce all of the documents requested in the Document Summons (para (b)(i)) and documents created after 29 June 2016 (and up until 1 August 2016) (para (b)(ii)).
Insofar as the allegation in para (b)(ii) is concerned, we are satisfied, and we find, that the respondent, by his letter of 28 February 2017, expressly refused to produce all documents created after 29 June 2016, notwithstanding that he was required to provide all documents in existence up to 1 August 2016. So much is evident in the respondent's letter of 28 February 2017. As we explain in [138] – [139] below, at no time did the respondent produce documents created between 30 June 2016 and 1 August 2016.
As for the allegation in para (b)(i) of Ground 2, at first blush, that allegation appears to overlap with the allegation in para (b)(ii). However, we understood each allegation to be directed to a different aspect of the respondent's refusal to produce the documents requested. That much was confirmed by counsel for the applicant at the hearing.[104]
[104] ts 30, 23 February 2023.
Para (b)(i) of Ground 2 should be understood to allege that the respondent, by his letter to the applicant of 28 February 2017, expressly refused to produce all of the documents requested in the 4 January Document Summons, other than those described in para (b)(ii). By para 1 of the 4 January Document Summons, the respondent had been required to produce his 'entire file and all documents arising by reason of Chapmans acting' for Mr S in respect of a worker's compensation claim up until 1 August 2016.[105] On that basis, we understand para (b)(i) of Ground 2 to allege that the respondent, by his letter of 28 February 2017, expressly refused to produce all documents which were created from the point in time when Chapmans received instructions to act for Mr S, until 29 June 2016.
[105] The documents referred to in para 2 of the 4 January Document Summons are not presently material. And as we have already noted, para 2 of that summons also sought the production of documents concerning an audit trail, and metadata, in relation to the letters the subject of the complaint, but we did not understand Ground 2 of Annexure A to pertain to any alleged failure to produce such documents. And while para 2 of the summons also required the production of draft versions of the three letters which were the subject of the complaint under investigation, those drafts would in any event have been covered by the requirement in para 1 of the summons to produce Chapmans' original file and 'all documents arising by reason of Chapmans acting for [Mr S]'. Furthermore, in his letter of 28 February 2017, the respondent indicated that he intended to provide all documents described in para 2 of the 4 January Document Summons to the extent that they existed. That being the case, we understood para (b) of Ground 2 (and indeed, Ground 2 as a whole) of Annexure A to be concerned solely with the respondent's express refusal to produce the documents requested in para 1 of the 4 January Document Summons.
In the respondent's letter of 28 February 2017, he specified that he would only produce documents 'between the date the WorkCover proceedings were commenced' and 29 June 2016. The WorkCover proceedings in respect of Mr S were commenced on or about 20 May 2016.[106] It is therefore apparent from the terms of his letter of 28 February 2017 that the respondent refused to produce any documents created prior to 20 May 2016.
[106] Exhibit 1, page 6; Exhibit 2, page 315.
We should add that the terms of the 4 January Document Summons left no room for doubt as to whether documents created prior to the commencement of the WorkCover proceedings were required to be produced. The terms of the 4 January Document Summons expressly required that the respondent produce, amongst other things, 'file opening documentation and administrative information'.
Furthermore, there can be no doubt that documents created prior to 20 May 2016 must have existed on Chapmans' file. By way of example, prior to the commencement of the WorkCover proceedings, Mr S must have given instructions to Chapmans to act on his behalf and must have provided them with such factual information as was necessary to permit the WorkCover application to be lodged on his behalf. Such instructions must have been recorded on Chapmans' file. Further, the documents eventually produced by the respondent under cover of his letter dated 18 July 2017 (long after the extended date for compliance with the summons) included some documents dated prior to 20 May 2016.[107] On that basis, we are satisfied, and we find, that the Chapmans' file contained documents created prior to 20 May 2016.
[107] See, for example, Exhibit 2 tab B, pages 1 – 5, 108, 109 – 110, 113 – 114, 118 – 123 and 125.
Dr Khalid's opinion is that the practitioner meets the diagnostic criteria of OCPD as described in DSM-5, which he set out in his initial report.[285] On its face, the terms of that diagnostic criteria require that, for a diagnosis to be made, a patient must satisfy at least four of eight relevant indicia.
[285] Khalid Report, page 12.
In our view, in order for us to give any weight at all to Dr Khalid's diagnosis, it was necessary for him to identify which four or more of those eight indicia are, in his view, satisfied and, further, identify those aspects of the practitioner's behaviour, as drawn from the information that he previously set out at length, is such as to lead him to conclude that those criteria are satisfied. He has done neither.
Dr Khalid has also, in our view, failed to properly explain the basis for his conclusion that the diagnosis of OCPD caused or contributed to the offending conduct.
In his answer to Q2 in his Further Supplementary Report, Dr Khalid does little more than restate his conclusion that the practitioner's OCPD was the cause for his 'deliberate non-compliance' with the applicant's summonses. Simply listing several 'clinical features' of OCPD does not amount to an explanation of causation.
Further, it is our view that at no stage does Dr Khalid grapple with the most damaging findings reached against the practitioner (that his failure to comply with the applicant's summonses was for the purpose or substantial purpose of hindering or frustrating the applicant's investigation) save to say that a symptom of OCPD is rigidity and stubbornness.
We accept that one might categorise the continued failure of the practitioner to comply with the summonses as conduct that is rigid and stubborn, but that characterisation does not assist in explaining how the practitioner's OCPD might have caused him to behave so as to frustrate and hinder the applicant's investigations of his conduct.
In our view, the reports of Dr Khalid ought to be given no weight. In our view, they fail to explain his diagnosis of OCPD and the basis on which that diagnosis might be said to explain the practitioner's relevant conduct.
As to the diagnosis of ASD, we understand the evidence in this regard to be, in effect, that a person with ASD may miss social cues such that nuance in communication may be missed and that some communications can be perceived as rude when no such rudeness is intended.
While we accept that that may be so in direct, personal interactions, we have some hesitation in accepting that to be the case where communications are written.
But regardless, the findings of professional misconduct in this regard go well beyond discourtesy and include the making of threats and intimidation for the purpose of furthering his client's interests by unfair means. In our view, there is nothing in the material that suggests that such behaviour can be explained by the ASD diagnosis.
In short, we find that there is no cogent and compelling evidence of any relationship between the diagnosis of ASD and OCPD and the practitioner's misconduct.
Accordingly, the evidence as to the extent that treatment may minimise the risk of future recidivism is also to be accorded very limited weight. In any event, we agree with the applicant that none of the evidence outlines a timeframe at the end of which there will be little to no risk of the practitioner repeating his misconduct.[286]
[286] Applicant's Further Supplementary Outline at [33].
In that regard, Dr Watts opines that 'another 20 sessions of individual therapy … will have a large benefit in mitigating against further issues'.[287]
[287] Watts Report, page 8.
Dr Khalid cites various different treatments for ASD and OCPD and says, in relation to only one of them (psychotherapy), that its 'success rate … will depend on [the practitioner's] commitment to implement strategies learnt in the sessions to modulate his behaviour against any future departures from appropriate professional conduct'.
Accordingly, even if we accepted that there was a proper basis to find that the misconduct was caused by the Disorders, there is nothing before us upon which we might find that treatment of those Disorders is likely to reduce the risk of the practitioner re-engaging in improper conduct to an acceptable level at some stage in the future.
Insight and remorse
The applicant says, in effect, that the practitioner lacks insight and remorse into the conduct in which he engaged. By contrast, the practitioner's submissions are to the effect that he recognises his wrongdoing and is remorseful for it.
In our view the evidence that the practitioner lacks insight and remorse is considerable and overwhelms the limited evidence to the contrary.
First, we accept that the practitioner's conduct of the proceedings supports a finding that the practitioner lacks insight and remorse.
As the applicant submits, up to and including at the hearing before us the practitioner made almost no admissions[288] and positively denied that he had engaged in any misconduct. Despite that, he ran no positive case and failed to give evidence.
[288] Save for his admission that he was a legal practitioner, the only other admissions were that he had failed to comply with the summonses, which admissions were made only at the remittal hearing, more than 4½ years after the commencement of the proceedings.
While the practitioner was entitled to defend the application, and is not to be punished for doing so, his assertion throughout the proceedings that he had done nothing wrong is inconsistent with his acceptance of, and contrition for, wrongdoing.[289]
[289] Khosa at [210] (per Murphy & Beech JJA); Metaxas v Legal Profession Complaints Committee [2020] WASCA 27 (Metaxas) at [131] – [136].
Accordingly, at least at the time of the remittal hearing, in February 2023, we find that there was no insight or remorse by the practitioner regarding his misconduct.
Secondly, the practitioner's conduct in seeking to appeal the Tribunal's decision on remittal is also inconsistent with any assertion of insight and remorse. The practitioner's Grounds of Appeal, filed 14 March 2024,[290] include: Ground 4 – that we erred in finding that he failed to comply with the four summonses; Ground 5 – that we erred in finding that, in not complying, he had the purpose or a substantial purpose of seeking to frustrate or hinder the applicant's investigation into him; and Ground 7 – that he had no reasonable excuse for the non‑compliance.
[290] Affidavit of Nicholas David Pope, sworn 26 March 2024 (Exhibit 11), Annexure NDP-2. We note the decision Lourey v Legal Services and Complaints Committee [2023] WASCA 90, which upheld the Registrar's decision to refuse to accept for filing an Applicant's Case dated 10 March 2024.
Again, the practitioner is entitled to challenge our findings on appeal.[291] But having done so on grounds that allege error in making factual findings, he cannot then claim that he recognises that the conduct the subject of those findings was wrong and is genuinely sorry for that conduct.[292]
[291] State Administrative Tribunal Act 2004 (WA), s 105 (SAT Act).
[292] Metaxas at [136].
Thirdly, we agree with the applicant that many of the expressions of regret contained in the practitioner's affidavits of 31 October 2023 do not express genuine remorse.
As we have noted above, the practitioner's affidavit of 31 October 2023 sets out at length the practitioner's account of his conduct the subject of the various findings against him. In more than a few instances, it includes admissions that should have been made previously and elsewhere he deposes to matters that are inconsistent with previous findings.
For example, he deposes that had he known that judicial review was the correct way to challenge a summons he would have done so and that, '(a)t the time [he] genuinely believed that [he] had a legal entitlement to challenge the scope of the [summonses] on the basis of relevance'.[293]
[293] Exhibit 3 at [31].
That is inconsistent with our findings that, at the time he failed to comply with the summonses, he did not have a genuine, subjective view that irrelevance was a sufficient basis to excuse him from complying.[294] It also fails to address the fact that from 2019[295] he knew the correct procedure and yet insisted in the hearing before us that the material the subject of the summonses was not relevant.[296]
[294] Tribunal's Subsequent Reasons, [190] – [193].
[295] Legal Profession Complaints Committee v Lourey [2019] WASC 62, delivered 5 March 2019. At [22] Strk AJ (as her Honour then was) held that summonses issued under the LP Act were amenable to judicial review.
[296] Tribunal's Subsequent Reasons at [72(c)], [79] – [83], [186] – [190].
In those circumstances, the practitioner's 'regret' that he did not take steps to understand the proper means by which to challenge the summonses is not, in our view, an expression of insight into the wrongfulness of his conduct or an expression of contrition. Rather, in our view, the practitioner's expression of regret as to his failure to take certain steps can only be understood as regret for the disciplinary action that followed, not because his conduct made the applicant's investigation more difficult or because his interference with the applicant's investigation undermined the role of the applicant in regulating the legal profession.
As to his breach of his undertakings the practitioner deposes in that initial affidavit that he recognises that he 'should have written' to the applicant as soon as he realised he would not be in a position to comply with the undertakings and that he regrets not doing so.[297]
[297] Exhibit 3 at [73].
The ambiguity in the statement presents difficulty for the practitioner. It is not clear what it is that the practitioner regrets. On one view, he regrets not doing so because, if he had, he may have avoided that aspect of the disciplinary proceedings. Certainly, the statement falls well short of a clear expression that his failure to meet the undertaking represented a very serious breach of his professional obligations and contrition for that breach.
Equally, his expressions of regret for using intemperate[298] and threatening[299] language[300] include no contrition for the impact of that language on the recipients of his correspondence, or the damage done to the profession. Indeed, in the former case he seeks to explain the discourtesy by suggesting that he was 'overly eager to pursue [his] client's interests too robustly'.
[298] Exhibit 3 at [82].
[299] Exhibit 3 at [91].
[300] See also at [106].
The practitioner’s later affidavit of 31 January 2024 goes some way to a genuine expression of remorse. That affidavit seeks to explain how his diagnosis of ASD has allowed him to reassess certain behaviour.
He says that he has reconsidered the correspondence and that he can 'empathise with how those letters and threats might have made [the recipients] feel and the impact it may have had on their wellbeing'. He says that he 'deeply regret(s) any harm [he has] caused'[301] and that he recognises 'why that correspondence is not acceptable'.[302] He also says, in relation to the summonses that he recognises 'the extent to which [his] inadequate responses have caused the Applicant to incur costs and carry out work it ought not to have had to bear' and that he 'deeply regret[s] how [his] actions have affected others'.[303]
[301] Exhibit 4 at [18].
[302] Exhibit 4 at [19].
[303] Exhibit 4 at [21].
However, as the applicant notes, even some of these later expressions of regret by the practitioner occur in the context of language which might reasonably be viewed as diminishing or minimising his misconduct.[304]
[304] Applicant's Further Outline at [16].
As the applicant submits, the practitioner's response to the summonses was not merely 'inadequate'; amongst other things, he was found to have failed to comply for the purpose or substantial purpose of hindering or frustrating the applicant's inquiry.[305]
[305] Applicant's Further Outline at [17].
Equally, the impact of his failure to comply was not merely that the applicant spent more time and money on its investigation; his conduct was 'calculated to prejudice, and has prejudiced, the administration of justice'.[306]
[306] Applicant's Further Outline at [18].
Finally, we note that the practitioner's expressions of regret contained in his affidavit of 31 January 2024 were made in response to the applicant's criticism of his affidavit of 31 October 2023. In our view, the expression of genuine insight and remorse by a legal practitioner, contained in a document prepared by his solicitors, ought not to require the input of the professional regulator in order to 'get it right'.
Disposition
As noted above, the practitioner accepts (by his Minute of Proposed Orders for Penalty and Costs) that the various findings of professional misconduct made against him warrant a period of suspension of his practising certificate.
We agree with the applicant's submission that, given the relevant legal principles previously identified, that amounts to a concession by the practitioner that he is not presently a fit and proper person to practise law.
In our view, such a concession is properly made.
As we have already emphasised, the four findings of professional misconduct that we made in August 2023 included findings that his conduct, in failing to comply with the four summonses for the purpose of frustrating or hindering the applicant's inquiry into his conduct, was such as to demonstrate that he is not a fit and proper person to practise law.
In our view, such conduct amounts to a very serious, deliberate breach of his fundamental obligations as a legal practitioner which evidences a lack of honesty, integrity, and trustworthiness on his part and, accordingly, demonstrates that he is not a fit and proper person to engage in legal practice.
Accordingly, we strongly disagree with the submissions made on his behalf that sought to characterise his non-compliance with the summonses as arising due to a 'misconception or mistaken belief' and that it involved 'incorrect judgment calls'.[307]
[307] See at [72] above.
The previously constituted Tribunal also made a finding that the practitioner is not a fit and proper person to practise law in relation to one of the breaches of his undertaking.[308]
[308] Order 7, but not Order 14 for reasons that are not clear.
We agree with the applicant's submission that the practitioner's conduct in breaching his undertakings, which he had given to the applicant as his professional regulator in the course of an investigation into his conduct, had the effect of hindering the applicant's investigation into his conduct.[309] They can therefore be characterised as serious professional misconduct demonstrating a fundamental lack of honesty and integrity on the respondent's part.[310]
[309] Tribunal's Initial Reasons at [320].
[310] Applicant's Outline at [25(f)].
The findings regarding the language used in the practitioner’s correspondence are also very serious and ought not to be overlooked.
The practitioner's discourteous, threatening and intimidating correspondence covered a lengthy period and included dealings with several practitioners and others involved in litigation across several matters.
In that regard, we repeat that the correspondence in question went well beyond mere discourtesy and was found to have included the making of baseless threats and attempts to threaten and intimidate to obtain unfair advantage.
We also repeat that the correspondence in question began less than 12 months after disciplinary findings were made against the practitioner concerning very similar language in correspondence.
In our view, the practitioner's conduct in conducting correspondence of this nature demonstrates 'a persistent disregard for the duties of a legal practitioner [and] the professional standards expected within the legal profession …'[311]
[311] in de Braekt at [34].
Since our findings (and those of the previously constituted Tribunal) were made, the practitioner has obtained the reports of Dr Watts and Dr Khalid and has sworn affidavits in which are included various expressions of insight into his conduct and expressions of regret.
As we have previously found, the medical/psychological evidence does not provide a cogent and compelling link between the practitioner's diagnosis of the Disorders and the misconduct.
Equally, we have no confidence that the practitioner genuinely understands what it is that he has done wrong or that he is sorry that he has done so.
In that regard, while the affidavits sworn by him do include some expressions of insight and regret, on the whole we find them to be inconsistent with submissions made on his behalf to the effect that he is remorseful for his conduct.
Accordingly, we find that the practitioner is currently not a fit and proper person to practise as a legal practitioner.
Consistent with the above stated principles, we are then presented with a choice between the alternatives of suspension and striking off, with the former only being available to us if we are satisfied that, at the termination of the period of suspension, the practitioner will no longer be unfit to practise.
For the reasons already outlined we do not accept the practitioner's submissions that the medical and psychological evidence supports a finding that the Disorders were the cause of, or contributed to, the offending conduct. We also, therefore, do not find that the practitioner will, following treatment for those Disorders, present a reduced risk of engaging in further improper conduct.
We also repeat our finding that the practitioner has shown no real or genuine insight or remorse. We find that the absence of a genuine appreciation by the practitioner of the impropriety of his conduct increases the risk of recurrence of the improper conduct.
Also relevant to our ultimate disposition is the practitioner's disciplinary history, to which we have already referred. The lack of time between the previous findings and the conduct concerned here indicates either an unwillingness, or an inability, to appreciate the impropriety of his conduct.
Accordingly, we find the practitioner's present unfitness to practise reveals or discloses that the practitioner lacks the character and trustworthiness necessary to discharge his obligations of legal practice.
We agree with the applicant that the totality of the practitioner's misconduct is 'plainly incompatible with the characteristics of honesty and integrity that are fundamental to the practice of law' and that striking off is warranted not just to address the risk posed by the practitioner and not just as a deterrent to others 'but to reassure the public that such conduct … will not be tolerated'.[312]
[312] Applicant's Outline at [52].
That is, striking off will protect the public by both removing the right to practise from the practitioner, whose character and trustworthiness is inconsistent with that privilege, as well as by reminding other practitioners that such conduct, and particularly that which threatens the integrity of the regulatory regime, will result in an appropriate sanction in order to maintain the reputation and standards of the legal profession.
Costs
The applicant seeks an order that the practitioner pay its costs, fixed in the sum of $87,195.47.[313]
[313] Applicant's Further Outline at [39].
The relevant principles are well known and were recently restated in McCardle[314] as following:
[52] The starting point in relation to any application for costs in the Tribunal is that, subject to any contrary provision in an enabling Act, the parties to proceedings bear their own costs unless the Tribunal orders otherwise. However, the Tribunal has a discretion to order a party to pay all or any of the costs of another party.
[53] The legal rationale for an order for costs under s 87(2) is that the order is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. Accordingly, even in the statutory context where the presumptive position is that no costs will be ordered, generally speaking the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The onus is on the party seeking an order in its favour.
[54] The Tribunal's discretion in relation to the award of costs is a wide one. Nevertheless, it is exercised judiciously and not capriciously.
[55] In vocational regulatory proceedings, where a regulatory body is successful in obtaining relief for misconduct or unprofessional unsatisfactory conduct by a respondent, it is common (if not ordinarily the case) for the Tribunal to order that the respondent pay all or some of the costs of the regulatory body. That approach reflects the public policy that regulatory bodies perform functions which promote the public interest, usually with limited resources, and the concern that the financial burden of bringing disciplinary action, if the regulatory body has no capacity to recover some or all of its costs, might act as a disincentive to bring such disciplinary action, or to ensure that all allegations against a practitioner are properly and thoroughly presented.
[56] In assessing costs, the Tribunal takes a 'robust and broad-brush approach' and bases its determination on what reasonable allowance should be made for the work necessarily done to bring the proceedings to a conclusion.
[57] An assessment of costs should be approached in a broad fashion and should not descend into an inquiry into small items of expenditure.
[58] Although the assessment of costs involves a relatively broad and robust approach, the Tribunal must be satisfied that the costs claimed are reasonable and necessary. The Tribunal must also be satisfied that the costs claimed are not excessive. Any costs awarded must be compensatory and not punitive in nature.
[59] Furthermore, the Tribunal must explain why an award of costs is reasonable and, if so, in what amount.
[314] Legal Services and Complaints Committee and McCardle [No 2] [2023] WASAT 131(S). Internal citations omitted.
The amount sought by the applicant does not include any time/sums in respect of work done by the applicant's own legal officers. Rather, it is limited to those expenses incurred by the applicant in retaining counsel for the purposes of bringing and pursuing the application, together with relatively minor disbursements, being lodgement fees and for transcript.
We also note that while the two primary hearings were conducted by Senior Counsel (alone), the penalty hearing (as well as the associated written submissions) was conducted by junior counsel, following the appointment of Senior Counsel to the Supreme Court.
The amounts incurred by the applicant in retaining counsel are, with one minor exception,[315] at or below (and, as to one reasonably lengthy period of time, well below[316]) the relevant costs determination.
[315] For work done by senior counsel after 1 July 2022, a rate $5/hr greater than the Scale limit was charged.
[316] For work done between 1 July 2018 and 30 June 2022, Senior Counsel charged at $310/hr and $3100/day, being less than 60% of the maximum rate allowable under the relevant Determination.
The amount sought includes the sum of $6,968 for work done after 15 November 2023 (i.e. the original listed date of the penalty hearing). That sum was included in the Applicant's Further Outline, which was filed on 7 February 2024.[317] Further work was undertaken by counsel for which that sum would not allow, given the adjournment of the hearing on 16 February 2024 part-heard. Such additional work was not insignificant and includes the preparation and filing of the Applicant's Further Supplementary Outline and appearance at the part-heard hearing on 16 March 2024. It is unclear whether counsel charged for that additional work done, but assuming that he has, the applicant has not claimed for it.
[317] Applicant's Further Outline at [39(b)].
The practitioner has put on evidence and submissions to the effect that he is 'presently experiencing financial hardship'[318] which hardship will, no doubt, have been exacerbated by the suspension of his practising certificate.
[318] Affidavit of Michael Joseph Lourey, sworn 31 October 2023 at [120]; Affidavit of Michael Joseph Lourey, affirmed 31 January 2024 at [23].
He deposes that, in effect, his superannuation fund is his only asset of value. He also says, somewhat cryptically, that he owns no real estate but is obliged to repay the mortgage on a property owned by his spouse.[319]
[319] Affidavit of Michael Joseph Lourey, affirmed 31 January 2024 at [24] – [26].
He submits that we should not make an order as to costs.[320] Three matters are relied upon in apparent support for that proposition.[321]
[320] Respondent's Further Outline at [68].
[321] Respondent's Further Outline at [69] – [72].
First, it is said that the Disorders of which he has been diagnosed (but of which he was not aware at the time of the offending) are likely to have caused or contributed to the offending. As we have already found, the evidence is not such as to allow us to accept that that is the case.
Secondly, it is said that the practitioner's ability to pay is limited and a costs order would 'cause undue hardship'. In our view, such hardship is not a reason to refrain from making an order as to costs. That appears consistent with the approach taken by other tribunals and is consistent with the principle that costs are compensatory and not punitive.[322]
[322] McCardle at [58].
Thirdly, it is said that the practitioner 'has not been untruthful in his dealings with the tribunal'.[323] Again, given the principle that costs are compensatory, the truthfulness or otherwise of the practitioner appears to be of little relevance to whether a costs order should be made.
[323] Respondent's Further Submissions on Penalty and Costs, 31 January 2024 at [72].
Having reviewed the invoices of counsel, and in light of the preceding matters, we are satisfied that the number of hours claimed, and the hourly rate charged, are both reasonable, and the practitioner should pay costs reflecting those expenses incurred by the applicant.
As to the costs of transcript, two invoices are relied upon. The first concerns an application made in July 2019 for the transcript of the initial hearing in November 2018 (at a cost of $1,698.35). It was made about a month after the Tribunal handed down its reasons on 21 June 2019. We assume the transcript was sought for the purposes of the appeal brought by the applicant. That cost appears to us to be one that falls within the Court's jurisdiction, not ours. The claim should not be allowed in this regard.
The second invoice concerns an application made on 15 February 2023 for transcript of a directions hearing held on 2 February 2023. It was sought for the purposes of advice in light of an application made by the practitioner on 13 February 2023. There appears to be a commonality between the subject matter of the practitioner's application and that of the directions hearing on 2 February 2023. Accordingly, the claim (in the sum of $514.10) should be allowed. The practitioner should pay the applicant's costs in this regard.
We consider it fair and reasonable that there is an order that the practitioner pay the applicant’s costs in the sum of $85,496.62 comprising $84,517.52 for counsel’s fees, $465 for the Tribunal’s filing fee for the application and $514.10 for the cost of transcript for the hearing on 2 February 2023.
For the above 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 fixed in the sum of $85,496.62 with such costs to be paid to the applicant within 30 days or as otherwise agreed between the parties.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
PN
Associate to Deputy President Judge Jackson
21 MAY 2024
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