Legal Services and Complaints Committee and McCardle [No 2]
[2023] WASAT 131
•22 DECEMBER 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: LEGAL SERVICES AND COMPLAINTS COMMITTEE and McCARDLE [No 2] [2023] WASAT 131
MEMBER: PRESIDENT PRITCHARD
MR D AITKEN, SENIOR MEMBER
MR R POVEY, MEMBER
HEARD: 5 MAY 2022, LAST WRITTEN SUBMISSIONS FILED 17 APRIL 2023
DELIVERED : 22 DECEMBER 2023
PUBLISHED : 22 DECEMBER 2023
FILE NO/S: VR 133 of 2019
BETWEEN: LEGAL SERVICES AND COMPLAINTS COMMITTEE
Applicant
AND
ROXANNE MAREE McCARDLE
Respondent
Catchwords:
Vocational regulation – Disciplinary proceedings – Legal practitioner – Allegations of professional misconduct – Findings of professional misconduct – Kyle test – Section 403 definition of professional misconduct includes the Kyle test – Statutory interpretation
Proceedings commenced and/or maintained when those proceedings had no, or no proper basis – Proceedings commenced and/or maintained were an abuse of process - Proceedings commenced and/or maintained were conducted in a manner which was oppressive to the other party – Proceedings commenced and/or maintained had the potential to diminish public confidence in the administration of justice and/or had the potential to bring the profession into disrepute – Application to restrain the other party’s counsel from acting commenced and/or maintained when that application had no proper basis – Application for presiding judge to be disqualified from hearing the appeal commenced and/or maintained when that application had no proper basis – Oral submissions had the potential to mislead the Court – Where respondent filed a document and sent emails to the Court, which were discourteous, intemperate, scandalous or which had no reasonable basis, and which had the potential to diminish public confidence in the administration of justice or to bring the profession into disrepute – Where respondent prepared, swore, filed, and failed to correct, an affidavit which she knew was false and/or misleading, or was recklessly indifferent about whether it was false and/or misleading
Where the practitioner is an Australian lawyer – Significance of practitioner not currently engaging in legal practice – Whether significant that course of conduct subject of proceedings engaged in as self-represented litigant – Where conduct occurred while the respondent was living or working outside Western Australia
Legislation:
Constitution, Ch III, s 75(iv)
Evidence Act 1906 (WA)
Interpretation Act 1984 (WA), s 37, s 37(1), s 37(1)(b), s 37(1)(d), s 37(1)(f)
Legal Profession Act 2004 (NSW), s 499(1)(b), s 500(1)
Legal Profession Act 2007 (Qld)
Legal Profession Act 2008 (WA), Pt 13, Div 10, s 4(a), s 5(a), s 402, s 403, s 403(1), s 403(1)(a), s 403(1)(b), s 403(1)(b), s 403(2), s 404, s 405, s 405(1)(b), s 406, s 407, s 407(2), s 428, s 428(1), s 438, s 438(2), s 438(3), s 438(4), s 439 - s 442, s 452(8),
Legal Profession Conduct Rules 2010 (WA), r 6(2)(b), r 6(2)(c), r 34(1), r 34(2)
Legal Profession Uniform Law Application Act 2022 (WA), Div 7, Sch 4, cl 26, cl 27, s 6(2), s 57, s 220(2), s 260(a), s 261, s 266(2), s 269, s 313, s 315(2), s 316, s 317, s 318, s 319, s 325, Pt 15, Pt 16
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 17(2), s 17(3), s 43(3)
Restraining Orders Act 1997 (WA), s 69(2)
State Administrative Tribunal Act 2004 (WA), s 3, s 8, s 13, s 13(1), s 14, s 15(1), s 32(2), s 32(4)
Supreme Court (Court of Appeal) Rules 2005 (WA)
Vexatious Proceedings Restriction Act 2002 (WA), s 4(2)(c)(i)
Result:
The practitioner engaged in professional misconduct
Category: B
Representation:
Counsel:
| Applicant | : | Mr A J Musikanth SC with Mr S Clark |
| Respondent | : | No appearance |
Solicitors:
| Applicant | : | Legal Services Complaints Committee |
| Respondent | : | No appearance |
Cases referred to in decision(s):
Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256
Blair v Curran (1939) 62 CLR 464
Blake v Albion Life Assurance Society (1876) 45 LJQB 663
Branir Pty Ltd v Wallco Pastoral Co Pty Ltd [2006] NTSC 70; (2006) 18 NTLR 127
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 33
Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304
C.T. Bowring and Co (Insurance) Ltd v Corsi Partners Ltd [1994] 2 Lloyd's Rep 567
Cashin v Craddock (1876) 3 Ch D 376
Cavill Business Solutions Pty Ltd v Jackson [2005] WASC 138
Chamberlain v Law Society of the Australian Capital Territory [1993] FCA 527; (1993) 43 FCR 148
Chandrasekaran v Commonwealth (No. 3) [2020] FCA 1629
Christie v Christie (1873) LR 78 Ch App 499
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476
Coyle v Cumin (1879) 40 LT 455
Dixon v Legal Practice Board of Western Australia [2012] WASC 79
Fidock v Legal Profession Complaints Committee [2013] WASCA 108
Giudice v Legal Profession Complaints Committee [2014] WASCA 115
Griffin v Council of the Law Society of New South Wales [2016] NSWCA 364
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hongkong Xinhe International Investment Co Ltd v Bullseye Mining Ltd [No. 3] [2021] WASC 260
In re Davis (1947) 75 CLR 409
Jackson v Goldsmith (1950) 81 CLR 446
Jeffery and Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75
Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130
Kowalski v Mitsubishi Motors Australia [2009] FCA 1289
Kyle v Legal Practitioners' Complaints Committee (1999) 21 WAR 56
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
Law Society of New South Wales v Jayawardena [2008] NSWADT 187
Le Lievre v Gould [1893] 1 QB 491
Legal Practice Board v Said (unreported, 1994, Lib No. 940003)
Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2014] ACTSC 13
Legal Practitioners Complaints Committee and Segler [2009] WASAT 205
Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198
Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9
Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37
Legal Profession Complaints Committee and Amsden [2014] WASAT 57
Legal Profession Complaints Committee and Barber [2015] WASAT 99
Legal Profession Complaints Committee and Bostock [2022] WASAT 100
Legal Profession Complaints Committee and Chang [2019] WASAT 67
Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43
Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43 (S)
Legal Profession Complaints Committee and Khosa [2023] WASAT 90
Legal Profession Complaints Committee and McCardle [2020] WASAT 51
Legal Profession Complaints Committee and Tang [2021] WASAT 117
Legal Profession Complaints Committee v Brennan[2010] WASC 198
Legal Profession Complaints Committee v Brickhill [2013] WASC 369
Legal Profession Complaints Committee v Lourey [2022] WASCA 114
Legal Profession Complaints Committee v Rayney [2017] WASCA 78, (2017) 51 WAR 142
Legal Services and Complaints Committee and Butler [2023] WASAT 124
Legal Services and Complaints Committee and Robertson [2023] WASAT 127
Legal Services Commissioner v Turley [2008] LPT 4
Legal Services Complaints Committee and Lourey [No 2] [2023] WASAT 77
Manolakis v Carter [2008] FCAFC 183
MCC Proceeds Inc v Lehman Bros International (Europe) [1998] 4 All ER 675
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115
Millington v Loring (1880) 6 QBD 190
Mineralogy v Sino Iron Pty Ltd [2015] WASC 454
Moore v Inglis (1976) 9 ALR 509
Mustac v Medical Board of Western Australia [2007] WASCA 128
Palmer v Dolman [2005] NSWCA 361
Papamihail v Legal Profession Complaints Committee [2023] WASCA 183
PNJ v The Queen [2009] HCA 6, (2009) 83 ALJR 384
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Powell v In de Braekt [2007] WASC 4
Prothonotary of the Supreme Court of New South Wales v Da Rocha [2013] NSWCA 151
QBE Insurance (Australia) Ltd v Lois Nominees Pty Ltd and Ors [2012] WASCA 186
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65
Reichel v Magrath (1889) 14 App Cas 665
Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19
Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198
Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251
Sarto v Sarto [2021] VSC 295
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93
State Bank of New South Wales Ltd v Alexander Stenhouse Ltd (1997) Aust Torts Reports 81–423
Thirteenth Corporation Pty Ltd v State [2006] FCA 979; (2006) 232 ALR 491
Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28
Vogt v Legal Profession Complaints Committee [2009] WASCA 202
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Western Australia v Cunningham (No 2) [2017] WASCA 197
Westgyp Pty Ltd v Northline Ceilings Pty Ltd [2018] WASC 244
Westpac Banking Corp v Anderson [2017] WASC 106
Wu v Avin Operations Pty Ltd (No 2) [2006] FCA 792
Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279
REASONS FOR DECISION OF THE TRIBUNAL:
In these proceedings, the Legal Profession Complaints Committee (LPCC) made an application (Application) alleging that on various dates between July 2012 and January 2017, the respondent (practitioner) had engaged in professional misconduct as described in s 403 of the Legal Profession Act 2008 (WA) (LP Act).
There were three grounds for the Application, which in essence were as follows. First, the LPCC alleged that the practitioner commenced and/or maintained various legal proceedings against her former husband (ex-husband) when those proceedings had no, or no proper basis, were an abuse of process, were conducted in a manner which was oppressive to the ex-husband, had the potential to diminish public confidence in the administration of justice and/or had the potential to bring the profession into disrepute (Ground 1).
Secondly, the LPCC alleged that in the course of an application to reinstate an appeal that the practitioner commenced against orders made by the Federal Magistrates Court, the practitioner made an application to restrain the ex-husband's counsel from acting for him. The LPCC alleged that that application had no proper basis. Further, the LPCC alleged that the practitioner also made an application that the presiding judge be disqualified from hearing the appeal, which application had no proper basis. The LPCC also alleged that in the course of pursuing both of those applications, the practitioner made oral submissions which had the potential to mislead the appeal Court, and made oral submissions, filed a document and sent emails to the appeal Court, which were discourteous, intemperate, scandalous or which had no reasonable basis, and which had the potential to diminish public confidence in the administration of justice or to bring the profession into disrepute (Ground 2).
Thirdly, the LPCC alleged that in the course of pursuing the appeal against the decision of the Federal Magistrates Court, the practitioner prepared, swore, filed, and failed to correct, an affidavit which she knew was false and/or misleading, or was recklessly indifferent about whether it was false and/or misleading (Ground 3).
The LPCC alleged that the various instances of conduct alleged in each of Grounds 1, 2 and 3, either individually or collectively, constituted professional misconduct within the meaning of s 403 and s 438 of the LP Act because each was conduct which, if established, would justify a finding that the practitioner is not a fit and proper person to engage in legal practice, or which would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, or which comprised a breach of rules 6(2)(b) and 6(2)(c) (and in the case of Ground 3, also of rules 34(1) and 34(2)) of the Legal Profession Conduct Rules 2010 (WA) (Conduct Rules).
For the reasons which follow, the LPCC has proved that the practitioner has engaged in professional misconduct in each of the ways alleged in Grounds 1, 2 and 3.
We will now list the matter for a hearing in relation to the sanction which should be imposed in respect of our findings of professional misconduct, and to deal with any application for costs.
In these reasons, we deal with the following matters.
(a)The history of the proceedings;
(b)Confidential information and the publication of these reasons;
(c)The Tribunal's jurisdiction to deal with the Application;
(d)Professional misconduct under the LP Act – principles
(e)The onus and standard of proof;
(f)The nature of the LPCC's case;
(g)Some concepts underlying the LPCC's allegations;
(h)Arguments advanced by the practitioner in opposition to the Application;
(i)Ground 1 – allegations, evidence and findings;
(j)Ground 2 – allegations, evidence and findings;
(k)Ground 3 – allegations, evidence and findings;
(l)Conclusion and Orders.
(a)The history of the proceedings
These proceedings were commenced in September 2019. From the outset, the practitioner disputed the Tribunal's jurisdiction to deal with the proceedings. The President made orders requiring that she file either an interim application to strike out the proceeding, or a response to the Application by 19 November 2019.
The practitioner filed an Interim Application on 19 November 2019, which she amended on 10 February 2020 (Interim Application), to dismiss the proceedings on the basis that the Tribunal had no jurisdiction to deal with the proceedings (jurisdictional argument), or alternatively that the proceedings constituted an abuse of process.
We discuss the Interim Application, and the Tribunal's jurisdiction more specifically, later in these reasons.
The Interim Application was dismissed.[1]
[1] Legal Profession Complaints Committee and McCardle [2020] WASAT 51 (McCardle).
Thereafter the President made the usual orders for the filing (by the practitioner) of a statement of issues, facts and contentions, for the parties to file the documents on which they wished to rely in the proceedings, and for the filing of witness statements setting out the evidence of any witness either party proposed to call.
The President subsequently made an order that if the practitioner wished to adduce any evidence at the final hearing, she was required to file any witness statement or book of documents not less than 21 days prior to that hearing.
The President listed the matter for a final hearing on 25 and 26 October 2021. The President also made an order to permit the practitioner to appear at the final hearing by telephone or video conference.
However, by an email dated 12 October 2021 to the Tribunal, the practitioner requested that 'this matter be transferred to the Qld regulator and tribunal as then I am not disadvantaged by being 4,500 kms away … . It is simply not possible for me to conduct my defence so far away.' However, the practitioner also claimed, elsewhere in her submissions, that when the LPCC wrote to her to request her consent to transfer the complaints so that could be dealt with by the Queensland regulator, she 'did not offer [her] consent because it would have meant that [she] was then dealing with a fourth regulator about the same matters and that would be grossly unfair'.[2]
[2] Practitioner's submissions as at 29 April 2022 at [10(f)].
On 18 October 2021, the LPCC consented to the vacation of the final hearing dates in order to permit it to make enquiries with the Queensland Legal Services Commission (Qld LSC) as to whether it considered it would have jurisdiction under the Legal Profession Act 2007 (Qld) to conduct its own investigation into the conduct the subject of the Application and if so, whether it would be prepared to do so.
On 11 January 2022, the LPCC wrote to the Qld LSC making those enquiries. On 25 January 2022, the Qld LSC advised the LPCC that on the information available to it, it appeared that the practitioner had not been admitted in Queensland, and while she had previously had a Queensland restricted practising certificate, she no longer had a Queensland practising certificate. The Qld LSC was of the view that it did not have jurisdiction to deal with the conduct the subject of the Application, as the practitioner was not a 'local lawyer' or a local practitioner as defined in the Legal Profession Act 2007 (Qld) and as the conduct occurred outside Queensland. The LPCC requested that the practitioner advise whether she was admitted in Queensland and asked to provide documentary evidence of her admission there. No such evidence was forthcoming, and, accordingly, the LPCC applied at the next directions hearing in relation to the Application, for orders programming the matter to a final hearing in the Tribunal.
On 22 February 2022, the President made orders listing the Application for a final hearing on 5 May 2022, to be conducted by videoconference. The President also made an order that if the practitioner wished to participate in the proceedings she was to advise the President's associate at any time and not later than 2 May 2022.
By an email dated 26 April 2022, the practitioner contacted the Tribunal and indicated that she 'will be seeking to file a Response to these allegations and to the comments by the LSB in Victoria, and the LPCC in SA'. She also raised, again, her view that the Tribunal did not have jurisdiction, and that the proceedings were vexatious, frivolous, and amounted to her being persecuted. The practitioner advised that her response:
will, firstly, include an objection to the lack of jurisdiction given the complainants are interstate and the LPCC as a body corporate is a government entity and is not a corporation … and secondly, offer contrary evidence as to the actual facts of these complaints … to show there is misleading allegations in these complaints, discrimination and or persecution of me by the regulatory bodies.
…
Given the volume of documents at my end, it would be convenient if I could file a response which includes an affidavit that will necessarily refer to exhibited documents that will be scanned from a USB. …
In the same email, the practitioner also advised that 'if at all financially possible for me, I would like to attend the SAT on 5 May 2022, but I won't know if this is possible until later in the week or early next week. I think it's crucial because I would like to cross examine [officers of the regulatory bodies].'
We digress to observe that to the extent that the practitioner referred, in her email, to an objection to the Tribunal's jurisdiction, it appears to have been on the same basis as the jurisdictional argument determined by the President in 2020.
The Tribunal responded to the practitioner by an email dated 28 April 2022 and advised:
First, you have indicated that you “will be seeking” to file a Response which you appear to suggest will include, amongst other things, an affidavit to which you appear to propose attaching a large number of documents.
The Tribunal made orders for the filing of evidence (in the form of a bundle of documents and a signed statement) on 11 August 2020. The deadline set for compliance with those orders was, on 3 May 2021, extended to 1 June 2021. A very considerable amount of time has passed since the expiry of that deadline. Accordingly, you will need to seek the Tribunal's leave to file any such material. Submissions in support of any application for leave should be filed with the material.
Secondly, you have said that you “would like” to attend the hearing in person “if [it is] at all financially possible”. On 22 February 2022 the Tribunal made orders that the hearing is to be conducted by videoconference. Accordingly, neither party or their/its representatives will appear in person. You will be provided in due course with a Microsoft Teams link to allow you to participate by videolink.
The practitioner did not file any documents in the Tribunal between 26 April 2022 and the hearing date on 5 May 2022. She did not file an application for leave to file documents out of time, nor any submissions indicating why leave should be granted. The practitioner did not appear at the final hearing, either in person or by videoconference (although a link to the videoconference had been provided to her).
We note that at various times in the course of the lengthy history of this matter, the practitioner had indicated, by email to the Tribunal and the LPCC,[3] that she had no intention of appearing at a final hearing for a variety of reasons, including the jurisdictional argument, her claim that the LPCC had been engaging in bullying and dishonesty, or had acted in bad faith, and her assertion that the proceedings should have been transferred to Queensland.
[3] See, eg, emails of 4 June 2021; 4, 9 and 11 October 2021 and 12 February 2022.
At the commencement of the final hearing on 5 May 2022, when there was no appearance by the practitioner, the Tribunal called her telephone number but there was no answer. In all the circumstances, the Tribunal determined to proceed with the hearing.
The LPCC was granted leave to rely on a Further Amended Annexure A to its Application. The LPCC's case at the final hearing was entirely documentary and no witnesses were called to give evidence. The LPCC filed a book of documents and was granted leave to rely on two supplementary books of documents, as the evidence on which it relied at the final hearing.[4] In addition, the LPCC was granted leave to rely on amended submissions and a schedule of evidence filed on 4 May 2022. Finally, at the Tribunal's invitation, the LPCC filed supplementary submissions in relation to the effect of the repeal of the LP Act.
[4] Exhibits 1, 2 and 3. The individual documents within each book of documents were identified as individual exhibits by reference to the order in which they were listed in the index for the book of documents (Exhibit 1.1, 1.2 etc, Exhibit 2.1, 2.2 etc and Exhibit 3.1).
In determining the Application, we have taken into account the contents of the documents which were filed by the practitioner in the proceeding, namely:
(a)Statement of Contentions dated 25 May 2020 (Practitioner's Contentions);
(b)Statement of Response dated 27 January 2021 (Practitioner's Response);
(c)Submissions contained in, or forwarded under cover of, emails dated 12 February 2022, 19 February 2022, 29 April 2022, 5 May 2022 (submissions dated 4 May 2022), 23 May 2022, 2 December 2022 (submissions dated 30 November 2022); and
(d)Further Amended Supplementary Submissions on or before 14 April 2023 and dated 17 April 2023 (Practitioner's Further Amended Supplementary Submissions), filed at the Tribunal's invitation in order to deal with the question of the effect of the repeal of the LP Act.
A number of arguments were advanced by the practitioner in the Practitioner's Contentions, the Practitioner's Response, and in the various submissions she filed. Some of those arguments necessarily fail because the practitioner did not attend and advance any evidence to support them. However, we have taken into account the balance of the practitioner's arguments – for example as to the existence of the Tribunal's jurisdiction, as to whether the Grounds have merit, and as to whether the LPCC's contentions should be accepted – as part of our assessment of whether the LPCC has proved its case, and as a matter of the utmost fairness to the practitioner. The various arguments raised by the practitioner are considered at appropriate junctures in the discussion below.
(b)Confidential information and publication of these reasons
In the course of the Practitioner's Contentions, the practitioner submitted that the Tribunal should make an order for the suppression of any decision of any hearing in these proceedings so as not to prejudice other proceedings instituted by her or others, including regulatory bodies elsewhere, as she claimed to have 'a number of matters underway including a number of reviews and does not want to be prejudiced in these'.[5]
[5] Practitioner's Contentions page 4.
After the final hearing, the Tribunal invited the parties to make submissions in relation to whether the Tribunal's reasons for decision should be subject to any restrictions on publication. The practitioner submitted that her name should not be published.[6] The LPCC submitted[7] that there were limitations, or potential limitations, on the publication of certain information in relation to these proceedings, and advanced a number of options for how those limitations might be observed, while maintaining the transparency of the proceedings.
[6] Email dated 13 May 2022 from the practitioner to the LPCC and the Tribunal.
[7] Applicant's Amended Submissions on the Publication of Reasons for Decision dated 13 May 2022.
For the reasons set out below, we do not consider that the suppression of these reasons, in their entirety, is required or warranted. That is because:
(a)Some of the decisions on which the LPCC relies as evidence of the conduct of the practitioner have previously been published;
(b)There is a strong public interest in disciplinary proceedings against legal practitioners being determined in an open and transparent manner, so as to maintain public confidence in the legal profession. That public interest is reflected in the express statutory obligation on the Legal Practice Board to maintain a register of disciplinary action against a practitioner which includes their full name, home jurisdiction, and particulars of the disciplinary action taken;[8]
(c)We consider that it is possible to publish these reasons in a form which anonymises references to courts and individuals so as to preserve the confidentiality of information where required, and otherwise to redact certain specific information which, if published, might permit the identification of confidential information to be discerned.
[8] See s 220(2) and s 325 of the Legal Profession Uniform Law Application Act 2022 (WA) (Application Act), and s 452(8) of the LP Act.
We will provide these reasons, drafted in the manner described, to the parties, on a confidential basis, and provide them with the opportunity to make submissions as to whether any further redactions are required, before the reasons are published.
(c)The Tribunal's jurisdiction to deal with the Application
The practitioner submitted that the Tribunal had no jurisdiction to deal with the matters the subject of the Application, nor did it have the jurisdiction to transfer the matters to another jurisdiction. As we have noted, the practitioner made an Interim Application for the dismissal of the Application for want of jurisdiction. Despite the dismissal of that Interim Application, she continued to maintain that the Tribunal did not have jurisdiction to determine the Application and that it should therefore be dismissed as an abuse of process.[9]
[9] Practitioner's submissions as at 29 April 2022 – Orders sought.
Given that the practitioner has continued to maintain that the Tribunal does not have jurisdiction, it is appropriate to address, at the outset, the Tribunal's jurisdiction to determine the Application.
In this case, there are three issues relevant to the Tribunal's jurisdiction:
(i) the source of the Tribunal's jurisdiction – LP Act;
(ii) whether the Tribunal continues to have jurisdiction in light of the repeal of the LP Act;
(iii) whether the Tribunal has jurisdiction having regard to the jurisdictional argument advanced by the practitioner.
We deal with each of those issues in turn below.
(i)The source of the Tribunal's jurisdiction
The Tribunal's jurisdiction derives from the State Administrative Tribunal Act 2004 (WA) (SAT Act) and from enabling Western Australian legislation which expressly confers authority on the Tribunal to determine applications for relief in its original jurisdiction or in its review jurisdiction.[10]
[10] SAT Act, cf s 8, s 13 and s 14.
The Tribunal has a duty and concomitant authority – an incidental jurisdiction[11] – to ensure that a proceeding commenced in the Tribunal is, and remains, within its jurisdiction to hear and determine.[12]
[11]Citta Hobart Pty Ltd v Cawthorn[2022] HCA 16; (2022) 96 ALJR 476 (Citta) at [25].
[12] Cittaat [17]; see also at [63] and [65] (Edelman J).
In every case, in order to comply with its duty to ensure that it has jurisdiction, the Tribunal will, at the least, need to confirm that an application made to it is made pursuant to a provision of the SAT Act or of other enabling legislation.
Section 438 of the LP Act – the source of the Tribunal's jurisdiction in this case
The Application was referred to the Tribunal by the LPCC on 10 September 2019, pursuant to s 428(1) of the LP Act. That subsection permitted the LPCC to refer a matter to the Tribunal if the LPCC determined that it should be heard by the Tribunal. A provision of an enabling Act that enables an application to be made to the Tribunal gives the Tribunal jurisdiction to deal with the matter concerned.[13] A referral constitutes an 'application' for the purposes of the SAT Act.[14]
[13] SAT Act, s 13(1).
[14] See the definition of 'application' in s 3 of the SAT Act.
Under s 438 of the LP Act, the Tribunal is expressly conferred with jurisdiction 'to make a finding that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct'.[15]
[15] Papamihail v Legal Profession Complaints Committee [2023] WASCA 183 (Papamihail) at [47].
The Tribunal's jurisdiction to deal with a matter referred to it, and to make a finding of unprofessional conduct or professional misconduct, is original jurisdiction.[16]
Is the practitioner an 'Australian lawyer'?
[16] Cf SAT Act, s 15(1).
For the purposes of s 438 of the LP Act, an 'Australian legal practitioner' is defined in s 5(a) of the LP Act to mean an Australian lawyer (that is, a person who is admitted to the legal profession under the LP Act or a corresponding law[17]) who holds a current local practising certificate or a current interstate practising certificate.
[17] LP Act, s 4(a).
The LPCC alleged[18] that at all material times the practitioner was an Australian legal practitioner within the meaning of s 5(a) of the LP Act.
[18] Applicant's Further Amended Annexure A at [1].
There was no evidence that the practitioner held a current practising certificate as at the date of the commencement of the proceedings in the Tribunal or thereafter. The question that arises is whether the Tribunal has jurisdiction under s 438 of the LP Act to make a finding of the kind sought against the practitioner.
The answer lies in s 405 of the LP Act, which provides that Part 13 of the LP Act (in which s 438 is located):
… applies to an Australian legal practitioner in respect of conduct to which this Part applies, and so applies:
(a)whether or not the practitioner is a local lawyer; and
(b)whether or not the practitioner holds a local practising certificate; and
(c)whether or not the practitioner holds an interstate practising certificate; and
(d)whether or not the practitioner resides or has an office in this jurisdiction; and
(e)whether or not the person making a complaint about the conduct resides, works or has an office in this jurisdiction.'
For completeness, we note that s 406 of the LP Act makes clear that Part 13 of the LP Act applies to Australian lawyers and former Australian lawyers (that is, to persons who are admitted, but do not hold a current practising certificate):
… in relation to conduct occurring while they were Australian lawyers, but not Australian legal practitioners, in the same way as it applies to Australian legal practitioners and former Australian legal practitioners, 'and so applies with any necessary modifications'.
In our view, the various provisions of Part 13 which refer to an Australian legal practitioner (including s 438 which confers jurisdiction on the Tribunal) must be construed in their context, including in light of s 405 and, accordingly, must be applied in a modified form to reflect the extended operation of Part 13 which is permitted under that section.
Relevantly for present purposes, it suffices to say that we are satisfied that the jurisdiction of the Tribunal under s 438 extends to making a finding about a person who is an Australian lawyer, but who, at the time of the finding, does not hold a current local practising certificate or a current interstate practising certificate, but who held a local practising certificate, or an interstate practising certificate, at the time of the alleged unsatisfactory professional conduct or professional misconduct.[19]
[19] Cf Law Society of New South Wales v Jayawardena [2008] NSWADT 187 at [137] – [139] in relation to s 499(1)(b) and s 500(1) of the Legal Profession Act 2004 (NSW) which were relevantly in the same terms as s 405(1)(b) and s 406 of the LP Act.
The practitioner was first admitted to the legal profession in South Australia. In a letter dated 20 April 2022 from the Law Society of South Australia to the LPCC,[20] the Acting Director (Ethics and Practice) confirmed, and on that basis we are satisfied, and we find, that the practitioner was first admitted to legal practice on 8 May 2006 in South Australia, and that as at the date of that letter, her name remained on the South Australian Roll of Legal Practitioners. There was no evidence to suggest that the practitioner had been removed from the South Australian Roll after 20 April 2022, and we infer, and on that basis, we are satisfied and we find, that the practitioner's name remains on the South Australian Roll of Legal Practitioners.
[20] Exhibit 2.8.
In a document dated 13 April 2022 from the Executive Director of the Legal Practice Board of Western Australia,[21] the Board confirmed, and on that basis we are satisfied, and we find, that the practitioner held an unrestricted Western Australian local practising certificate from 1 July 2012 to 30 June 2015, and that she was employed at a solicitor at a legal practice in Busselton, in Western Australia, from 16 February 2012 to 16 January 2015.
[21] Exhibit 2.4.
By a letter dated 29 March 2022,[22] the Acting Assistant Manager, Enquiries and Review, of the Victorian Legal Services Board also confirmed, and on that basis we are satisfied, and we find, that the practitioner held a Victorian practising certificate, namely an employee practising certificate, without trust authorisation, for the period 1 July 2015 to 30 June 2016, and from 1 July 2016 to 30 June 2017.
[22] Exhibit 2.2.
Further, in a letter dated 21 April 2022, the Acting Assisting Manager, Enquiries and Review, of the Victorian Legal Services Board confirmed, and on that basis we are satisfied, and we find, that the practitioner was employed at a legal practice in Victoria, between 19 January 2015 and 19 May 2017.[23]
[23] The LPCC alleged in its Further Amended Annexure A that the practitioner was employed at that firm from about 17 January 2015 to 19 May 2017. The error in her commencement date at the firm is of no present moment.
In short, we are satisfied, and we find, that the practitioner held a Western Australian local practising certificate, or a Victorian practising certificate, for the entire period in which the various instances of alleged professional misconduct are said to have occurred.
Consent from interstate regulatory authorities
Some of the conduct the subject of these proceedings occurred while the practitioner was living or working outside Western Australia; namely in South Australia or Victoria. That raises the question whether the conduct can be dealt with under the LP Act.
The answer lies in s 407 of the LP Act, which relevantly provides:
(1)Subject to subsection (3), this Part applies to conduct of an Australian legal practitioner occurring in this jurisdiction.
(2)This Part also applies to an Australian legal practitioner's conduct occurring outside this jurisdiction but only –
(a)If it is part of a course of conduct that has occurred partly in this jurisdiction and partly in another jurisdiction and either –
(i)the corresponding authority of each other jurisdiction in which the conduct has occurred consents to its being dealt with under this Act; or
(ii)the complainant and the practitioner consent to its being dealt with under this Act.
…
In our view, the practitioner's conduct which is the subject of Grounds 1 – 3 can properly be regarded as forming part of a course of conduct, which had its origins in the breakdown of her relationship with the ex-husband, and which relevantly involved her attempting to obtain a violence restraining order against the ex-husband and to pursue various proceedings (applications and appeals) against him, in this State and interstate. We discuss these matters further below.
To the extent that it was necessary for the LPCC to have the consent of the regulatory authorities of Victoria and South Australia to bring these proceedings in respect of that conduct, pursuant to s 407(2) of the LP Act, we are satisfied, and we find, that that consent was given. By letters dated 14 April 2022[24] and 21 and 26 April 2022,[25] the South Australian Legal Profession Conduct Commissioner, and the Victorian Legal Services Board and Commissioner, respectively, consented to the practitioner's conduct, which was the subject of Grounds 2 and 3, being dealt with under the LP Act.
(ii)whether the Tribunal continues to have jurisdiction in light of the repeal of the LP Act
[24] Exhibit 2.6.
[25] Exhibit 2.9, Exhibit 3.1.
Shortly after we reserved our decision on the Application, the LP Act was repealed. We must therefore consider whether the Tribunal continues to have jurisdiction to determine the Application in light of that repeal.
By s 260(a) of the Legal Profession Uniform Law Application Act 2022 (WA) (Application Act) the LP Act was repealed on 1 July 2022 (commencement date). From the same day, the Legal Profession Uniform Law (WA) (Uniform Law) applied as a law of Western Australia.[26]
[26] Application Act, s 6(2).
The practitioner submitted that the effect of the Application Act was to completely repeal the LP Act. She submitted that 'only those complaints at the investigation or complaints stage are still under the [LP] Act if not already in the SAT'.[27] The practitioner also submitted that the Interpretation Act 1984 (WA) did not apply and 'there is no provision in the [Application Act] for the powers of the SAT in relation to those proceedings commenced prior to 1 July 2022 other than those found by reading the other LP Uniform Laws in Victoria and NSW for direction'[28] (sic).
[27] Practitioner's Further Amended Supplementary Submissions at [20].
[28] Practitioner's Further Amended Supplementary Submissions at [21].
In so far as the practitioner contended that the LP Act no longer applies in relation to the Application, or that after the commencement date the Tribunal was unable to deal with the Application pursuant to the LP Act, we reject that contention, for the following reasons.
The Application Act contains various transitional provisions in relation to the continuation of investigations commenced under the LP Act, but not completed prior to the commencement date,[29] and in relation to the continuation, in the Tribunal, of applications for the review of certain decisions of the LPCC prior to the repeal of the LP Act.[30]
[29] Application Act, s 313.
[30] See, for example, Application Act, s 316, s 317, s 318 and s 319.
The Application Act also expressly deals with the investigation of alleged conduct which was engaged in by a person prior to the commencement date, but which was not the subject of a complaint or investigation under the LP Act (although it could have been). In that event, the alleged conduct may be the subject of a complaint or investigation under the Uniform Law.[31]
[31] Application Act, s 315(2).
Schedule 4 to the Uniform Law contains a number of savings and transitional provisions, but not all of them apply in this State. By s 266(2) of the Application Act, only some of those transitional provisions in the Uniform Law apply as a law of Western Australia. Relevantly for present purposes, the transitional provisions in Div 7 of Sch 4 to the Uniform Law (namely clauses 26 and 27) do not apply as a law of Western Australia. Clause 26 in Schedule 4 provides that a complaint made (to the relevant tribunal) under the previous legislation but not disposed of before the commencement of the Uniform Law is to continue to be dealt with under the provisions of the previous legislation. Had that clause applied as a law of Western Australia, it would have permitted the Application to continue to be dealt with under the LP Act. However, clause 26 in Schedule 4 to the Uniform Law does not apply as a law of this State.
The consequence, then, is that neither the Application Act nor the Uniform Law expressly answers the question whether alleged conduct, which occurred prior to the commencement date (as is the case here), and which was referred to the Tribunal prior to the commencement date, is to be dealt under the LP Act or the Uniform Law.
The answer to that question lies in s 37 of the Interpretation Act 1984 (WA) (Interpretation Act). Except where the contrary intention appears, Part 15 of the Application Act (which contains the repeal of the LP Act) and Part 16 of the Application Act (which contains the various transitional provisions to which we have referred) do not prejudice or affect the application of the Interpretation Act to and in relation to the repeal of the LP Act.[32]
[32] Application Act, s 261.
Section 37(1) of the Interpretation Act relevantly provides that:
Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears –
…
(b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;
…
(d) affect any duty, obligation, liability, or burden of proof imposed, created, or incurred prior to the repeal;
…
(f) affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made.
Having regard to the discussion above, we do not consider that Parts 15 or 16 of the Application Act manifest any intention which is contrary to the application of the Interpretation Act or s 37(1) of that Act in particular. For the sake of completeness, the transitional provisions in the Uniform Law do not manifest a contrary intention either.
By virtue of s 37(1)(b) of the Interpretation Act, the referral of the Application to the Tribunal under s 428 of the LP Act is not affected by the repeal of the LP Act.
In our view, a practitioner who, prior to the repeal of the LP Act, engaged in conduct that might be found to constitute unsatisfactory professional conduct or professional misconduct under the LP Act, can be said to have incurred a potential or inchoate liability under the LP Act.[33] By virtue of s 37(1)(d) of the Interpretation Act, that liability was not affected by the repeal of the LP Act.
[33] Cf Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115.
Furthermore, in our view, by virtue of s 37(1)(f) of the Interpretation Act, the repeal of the LP Act did not affect any legal proceeding or remedy in respect of that liability, including, relevantly, the legal proceedings commenced by the LPCC by the referral of the Application to the Tribunal, and the remedies available in the event that the Tribunal finds that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct.[34] The proceedings in the Tribunal therefore continue as if the LP Act had not been repealed.
[34] LP Act, Part 13, Division 10 and see esp s 438(2), (3) and (4), and s 439 – 442.
Accordingly, the effect of s 37(1) of the Interpretation Act, as applied by s 261 of the Application Act, is that the Application can continue to be dealt with by the Tribunal, and the provisions of the LP Act in Division 10 of Part 13 continue to apply in respect of the Tribunal's determination of the Application.
We note that that conclusion is entirely consistent with the reasoning of the Tribunal in Legal Profession Complaints Committee and Goldsmith[35] and is consistent with the conclusion reached by the Tribunal in Legal Profession Complaints Committee and Khosa.[36] That conclusion is also consistent with recent obiter dicta of the Court of Appeal.[37]
[35] Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43 (S) (Goldsmith (S)) at [5] – [35].
[36] Legal Profession Complaints Committee and Khosa [2023] WASAT 90 at [135]; see also Legal Profession Complaints Committee and Bostock [2022] WASAT 100 at [6] – [7]; and Legal Services and Complaints Committee and Butler [2023] WASAT 124 (Butler) at [8] – [13].
[37] See Papamihail at [9].
The repeal of the LP Act had one further consequence relevant to the present case. The LPCC was established under the LP Act, and the repeal of the LP Act means that the LPCC no longer exists. However, the Legal Services and Complaints Committee was established under the Application Act,[38] and that Committee is the same entity as, and a continuation of, the LPCC.[39]
[38] Application Act, s 57.
[39] Application Act, s 269.
Consequently, we consider that the correct name of the applicant in these proceedings should now be the Legal Services and Complaints Committee. It is necessary and appropriate to make an order to amend the name of the applicant to be the Legal Services and Complaints Committee instead of the LPCC. Nevertheless, for the sake of convenience, in these reasons we will continue to refer to the applicant as the LPCC.
(iii)whether the Tribunal has jurisdiction – the jurisdictional argument advanced by the practitioner
Throughout these proceedings the practitioner has advanced a jurisdictional argument, namely that the Tribunal has no jurisdiction to determine the Application because it falls within federal jurisdiction.
In a case where a claim or defence is said to fall within federal jurisdiction, the Tribunal's enquiry as to its jurisdiction does not stop with its confirmation that the SAT Act, or other enabling legislation, has conferred original or review jurisdiction on it. While the SAT Act does not contain an express conferral of power on the Tribunal to take steps to comply with its duty to ensure that it has jurisdiction, the Tribunal has an implied power to take steps to secure its own compliance with its duty to ensure that proceedings before it are within its jurisdiction to hear and determine.[40]
[40] Cf Cittaat [21].
The need for further enquiry, when a claim or defence is said to fall within federal jurisdiction, arises because the Tribunal is an administrative tribunal and not a court,[41] much less a court of the kind referred to in Chapter III of the Constitution, and it therefore has no jurisdiction to determine matters which are within federal jurisdiction.[42]
[41] Mustac v Medical Board of Western Australia [2007] WASCA 128 at [48] (Martin CJ, Wheeler JA and Buss JA agreeing).
[42] Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304 esp at [43], [50] (Kiefel CJ, Bell and Keane JJ), at [68] – [69], at [119] – [120] (Gageler J), at [145] – [146] (Nettle J), at [150] – [151], [187] – [188], [192] – [193] (Gordon J), at [203] – [205], [252] – [257], [260] (Edelman J).
The outcome of the Tribunal's enquiry as to its jurisdiction is that the Tribunal must form an opinion – rather than a conclusion with legal effect – about the limits of its own jurisdiction, for the purpose of moulding its conduct to accord with the law.[43] If a party to a proceeding in the Tribunal raises a claim or defence which is said to fall within federal jurisdiction, the Tribunal must form an opinion as to whether the claim or defence is genuinely raised and whether the claim is not incapable on its face of legal argument.[44]
[43] Cittaat [24], [25]; see also at [63], [65] (Edelman J).
[44] Cittaat [35].
In the Interim Application, the practitioner's jurisdictional argument was that the proceedings fell within s 75(iv) of the Constitution and therefore could only be determined by a court of the kind referred to in Chapter III of the Constitution. The practitioner submitted that the proceedings should be characterised as proceedings between a resident of one State (on the basis that the persons whose complaints had led to the LPCC's investigation and pursuit of the proceedings were residents of a State other than Western Australia) and a resident of another State (namely the practitioner, who resides in Queensland), or alternatively as proceedings between a State (on the basis that the LPCC could be equated with the State of Western Australia) and a resident of another State (namely the practitioner).
For completeness, we note that in the Interim Application, the practitioner also contended that the Application should be dismissed on the basis that its continuation would constitute an abuse of process. The bases for the abuse of process argument were that:
(a)The gender composition of the Legal Practice Board meant that it lacked an understanding of the practitioner's circumstances;
(b)The issues the subject of the Application had been, or were being, dealt with by disciplinary tribunals in other jurisdictions;
(c)The pursuit of the Application is unfair given the delay in bringing the proceedings, that the proceedings were having an adverse effect on the practitioner, that she was being 'targeted' in the proceedings, and that other practitioners were not the subject of proceedings brought by the LPCC; and
(d)She was not acting as a legal practitioner in the various proceedings in which her conduct is alleged to constitute professional misconduct.
The President determined that the Tribunal did have jurisdiction to determine the Application and determined that the Application was not an abuse of process on any of the bases relied upon by the practitioner.[45] It is not necessary to traverse the President's reasons here.
[45] McCardle at [35] and [52].
The practitioner continued to maintain the jurisdictional argument notwithstanding the President's decision to dismiss the Interim Application. The practitioner submitted that the President's decision was made on a factually incorrect basis, including that the Office of the Australian Information Commissioner had determined that the LPCC is a 'State government body or State government department'.[46] However, the practitioner did not file an appeal against the President's order dismissing the Interim Application.
[46] Practitioner's Response at [1].
The practitioner instead submitted that the Tribunal's determination that it had jurisdiction to deal with the proceedings should be set aside by a hearing before another Tribunal member, or preferably stayed. That submission must be rejected. No Member of the Tribunal has jurisdiction to set aside the President's decision to dismiss the Interim Application on the basis that that decision is said to be wrong, or to stay the proceedings on that basis.
Had the practitioner raised a new argument calling into question whether the Tribunal has jurisdiction, we would have been obliged to consider it so that we could continue to be satisfied that the Tribunal does have jurisdiction to determine the Application. However, the practitioner has not raised any new argument in support of her contention that the Tribunal does not have jurisdiction.
In any event, having regard to the arguments which the practitioner continues to maintain, and having regard to the reasons given by the President for rejecting the jurisdictional argument advanced in the Interim Application, we are of the view that that jurisdictional argument is incapable, on its face, of legal argument.[47] We are therefore of the opinion that the Tribunal does have jurisdiction to deal with the Application, and we proceed on that basis.
(d)Professional misconduct under the LP Act
[47] Citta at [34] – [35].
In respect of each Ground, the LPCC alleged that the practitioner, between various dates, engaged in professional misconduct within the meaning of s 403 and s 438 of the LP Act in that her conduct would, if established:
(i) justify a finding that the practitioner is not a fit and proper person to engage in legal practice,
(ii) further or alternatively, would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence and
(iii) further or alternatively comprised a breach of rules 6(2)(b) and 6(2)(c) of the Conduct Rules and, in the case of Ground 3, comprised a breach of rules 6(2)(b) and 6(2)(c) and also of rules 34(1) and 34(2) of the Conduct Rules.
The term 'professional misconduct' is defined in the LP Act[48] 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'.
[48] LP Act, s 403(1).
The term 'unsatisfactory professional conduct' is defined in the LP Act to include:
… 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.
The definition of 'professional misconduct' in the LP Act is thus, expressly, an inclusive one. It is not an exhaustive definition.[49] That much is reinforced by s 404 of the LP Act, which, 'without limiting s 402 or s 403', sets out examples of conduct which is capable of constituting unsatisfactory professional conduct or professional misconduct.
[49] Legal Practitioners Complaints Committee and Segler [2009] WASAT 205 (Segler) at [97].
It is also well established that s 403 encompasses conduct which would be understood to constitute professional misconduct (known as unprofessional conduct) at common law.[50] In Kyle v Legal Practitioners' Complaints Committee,[51] the Full Court explained that the common law concept of what was known as 'unprofessional conduct' had two limbs:
(i) Conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence (first limb); and
(ii) Conduct that, to a substantial degree fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence (second limb).
[50] See the discussion in Legal Services Complaints Committee and Lourey [No 2] [2023] WASAT 77 (Lourey [No. 2]) at [219] – [234].
[51] Kyle v Legal Practitioners' Complaints Committee (1999) 21 WAR 56 (Kyle) at [61] (Parker J, Ipp J and Steytler J agreeing).
The second limb of Kyle is not dissimilar to the definition of professional misconduct in s 403(1)(a) of the LP Act. (In contrast, s 403(1)(b) does not mirror the first limb of Kyle.)
In Legal Services and Complaints Committee and Lourey[52] the Tribunal explained that in Fidock v Legal Professional Complaints Committee[53] and in Legal Profession Complaints Committee v Lourey[54] the Court of Appeal confirmed that the Kyle test remains a separate and distinct test for professional misconduct under the LP Act, in addition to the statutory definition provided in s 403(1) of the LP Act.
[52] Lourey [No 2] at [219] – [234].
[53] Fidock v Legal Profession Complaints Committee [2013] WASCA 108.
[54] Legal Profession Complaints Committee v Lourey [2022] WASCA 114 (Lourey).
In summary, then, the statutory definition of 'professional misconduct' in s 403(1) of the LP Act includes not only the express statutory tests there set out, but also includes, as a separate and distinct test, the test set out in the first limb of Kyle namely 'conduct that would reasonably be regarded as disgraceful or dishonourable by practitioners of good repute and confidence', as well as the second limb of Kyle, which bears some similarity to the definition in s 403(1)(a) of the LP Act.
The Committee submits that the alleged conduct the subject of this application satisfies both the test in s 403(1)(b) of the LP Act and the test in the first limb of Kyle.
In so far as the concept of a 'fit and proper person' in s 403(1)(b) is concerned, for the purpose of making such a finding, 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.[55]
[55] LP Act, s 403(2).
Fitness to practise law requires that a practitioner must command the personal confidence of his or her clients, fellow practitioners and judges.[56]
[56] In re Davis(1947) 75 CLR 409, 420 (Dixon J); Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 at [43]; Legal Profession Complaints Committee v Brennan [2010] WASC 198 at [11].
Considerations of relevance to whether someone is a fit and proper person to be a solicitor may include the protection of the public against similar conduct, the character of the solicitor, and the effect which an order will have on the understanding (within the profession and amongst the public), of the standard of behaviour required of solicitors, the effect on relationships which must exist between solicitors and the circumstances surrounding the impugned conduct.[57]
[57] Prothonotary of the Supreme Court of New South Wales v Da Rocha [2013] NSWCA 151 at [29].
The assessment of fitness and propriety in legal practitioners also involves a range of broad public interest considerations. The relevant interests include the interests of the public, the interests of the court and the maintenance of the high reputation and standards in the legal profession.[58]
Professional misconduct – alleged breach of the Conduct Rules
[58] Dixon v Legal Practice Board of Western Australia [2012] WASC 79 at [27].
In addition, the LPCC also alleged that the practitioner's conduct constituted professional misconduct for the purposes of s 403 of the LP Act in that it constituted a breach of particular Conduct Rules.
As the Tribunal observed in Legal Profession Complaints Committee and Butler,[59] the Conduct Rules are an important aspect of regulation of the profession. Amongst other things, they serve as a standard of conduct in disciplinary proceedings and as a guide to practitioners as to action in a specific case, and for that reason, the Conduct Rules are a reliable and important indicator of the accepted opinion of members of the profession and accordingly are of assistance in determining matters of misconduct.
[59] Butler at [222] – [223] referring to GE Dal Pont, Lawyers Professional Responsibility, (7th ed, 2021) at [1.25].
At the time of the alleged conduct, rules 6(2)(b) and 6(2)(c) relevantly provided:
(2) A practitioner must not engage in conduct, in the course of providing legal services or otherwise, which —
…
(b) may be prejudicial to, or diminish public confidence in, the administration of justice; or
(c) may bring the profession into disrepute.
At the time of the alleged conduct, rules 34(1) and 34(2) relevantly provided:
(1) A practitioner must not knowingly or recklessly mislead a court.
(2) A practitioner must correct a misleading statement made to a court by the practitioner as soon as possible after the practitioner becomes aware that the statement was misleading.
Conduct outside legal practice may constitute professional misconduct under the LP Act
It will be noted that none of the conduct alleged against the practitioner in Grounds 1, 2 and 3 involved the provision of legal services to a client. Rather, the LPCC's case is that the practitioner engaged in professional misconduct when acting on her own behalf in the various legal proceedings referred to in the Grounds.
As s 403(1)(b) of the LP Act expressly recognises, conduct occurring otherwise than in connection with the practice of the law may constitute professional misconduct, if it is conduct that would justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
It is well established (and indeed was expressly accepted in Kyle itself) that conduct occurring outside the provision of legal services may constitute professional misconduct on the basis that it satisfies the first limb of Kyle if it 'would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence'.[60] And there have been cases where legal practitioners have been found to have engaged in professional misconduct when acting on their own behalf in legal proceedings.[61]
(e)The onus and standard of proof
[60] See, eg, Kyle at [61]; Legal Profession Complaints Committee and Tang [2021] WASAT 117 at [8] – [9]; see also Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279; Chamberlain v Law Society of the Australian Capital Territory [1993] FCA 527; (1993) 43 FCR 148 at [163] (Lockhart J).
[61] See, for example, Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (Amsden); Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37.
The LPCC bears the onus of proving its allegations of professional misconduct against the practitioner. As to the standard of proof, we adopt the following observations of the Tribunal in Chang:[62]
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.
[62] Legal Profession Complaints Committee and Chang [2019] WASAT 67 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.[63]
(f)The nature of the LPCC's case
[63] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) at [361] – [362].
The LPCC did not adduce in evidence a complete set of the documents relating to the various proceedings which were referred to in the Application. In relation to many of its factual allegations, the LPCC relied, by way of evidence, on the reasons given by various courts, either at first instance, or on appeal, or on transcript of hearings before various courts.
The Tribunal is not bound by the rules of evidence,[64] and in any event, the evidentiary material upon which the LPCC relied was, in our view, cogent evidence sufficient to establish the facts alleged.
[64] SAT Act, s 32(2).
At a number of points in these reasons, we have drawn inferences adverse to the practitioner from the contents of the documentary evidence. In drawing those inferences, we have had regard to the well known principles for drawing inferences of serious misconduct from circumstantial evidence, which require us to:[65]
1.consider the weight to be given to the united force of all of the circumstances taken together;
2.apply the standard of proof at the final stage in the reasoning process;
3.weigh the inference to be drawn from the proved facts against realistic possibilities as distinct from possibilities that might be regarded as fanciful; and
4.find the allegation is not proved where there are competing possibilities of equal likelihood or where the choice between them can only be resolved by conjecture.
[65] Palmer v Dolman [2005] NSWCA 361 at [41], applied in Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43 at [31], and Lourey [No 2] at [213].
In Westgyp Pty Ltd v Northline Ceilings Pty Ltd,[66] Vaughan J (as his Honour then was) explained that 'it suffices if the circumstances raise 'a more probable inference' in favour of what is alleged, ie the evidence gives rise to a reasonable and definite inference rather than conflicting inferences of equal degrees of probability'.
[66] Westgyp Pty Ltd v Northline Ceilings Pty Ltd [2018] WASC 244 at [57].
We have applied these principles in determining whether to draw inferences adverse to the practitioner.
(g)Some concepts relevant to the LPCC's allegations
It is convenient, at this point, to say a little more about the basis for some of the LPCC's allegations.
The LPCC's allegation that the practitioner's conduct in commencing or maintaining various proceedings constituted an 'abuse of process'
The term 'abuse of process' has a well-established meaning in the context of litigation.
Abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.[67] However, abuse of process is not limited to cases where the proceedings have been brought for an improper purpose or where there is no possibility of the court affording the affected party a fair hearing.[68] Abuse of process extends to proceedings which are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment'.[69]
[67] Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28 (Tomlinson) at [25]; PNJ v The Queen [2009] HCA 6, (2009) 83 ALJR 384 at [385] – [386].
[68] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, page 395 (Walton); Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 at [255] (Mason CJ), at [286] (McHugh J).
[69] QBE Insurance (Australia) Ltd v Lois Nominees Pty Ltd and Ors [2012] WASCA 186 at [115]; Jeffery and Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75 at [28].
The circumstances in which an abuse of process may arise are extremely varied and the courts have refrained from attempting any exhaustive categorisation of those circumstances.[70] However, although the circumstances in which an abuse of process may arise are incapable of being described exhaustively, it has also been said that at least one of three characteristics will be apparent in many cases of abuse of process, namely:[71]
(i)A court's processes being invoked for an illegitimate or collateral purpose;
(ii)The use of a court's procedures being unjustifiably oppressive to a party;
(iii)The use of a court's procedures bringing the administration of justice into disrepute.
[70] Tomlinson at [25]; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [7]; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 (Michael Wilson) at [89] (Gummow A/CJ, Hayne, Crennan and Bell JJ); Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at [74] – [75] (Gaudron J); Western Australia v Cunningham (No 2)[2017] WASCA 197 at [49] (Murphy JA and Mitchell JA); Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 (Sheraz)at [5] (Buss JA), at [119] (Murphy JA and Chaney J agreeing).
[71] Michael Wilson at [89]; Western Australia v Cunningham (No 2) [2017] WASCA 197 at [49]; Citta at [69].
Recognised categories of abuse of process include:
(i)commencing successive proceedings which cause oppression, or are likely to be oppressive, to a party because they constitute an attempt by a litigant to run the same case again.[72]
(ii)bringing two extant civil actions where one will lie, if the issues overlap or significantly overlap or there is a similarity of subject matters of the proceedings.[73] That will be so irrespective of whether the two proceedings are in separate courts or one,[74] and even if the parties, or the relief sought, are not identical.[75]
(iii)It will also be an abuse of process for a party to make a claim in later proceedings which is based wholly or substantially on the facts of a claim made by the same party in earlier proceedings, such as by pursuing the same claim against a different defendant.[76] An abuse of process may even arise where there is no identity of parties.[77]
(iv)Further, not only will it be an abuse of process to attempt to re‑litigate an issue which has, in substance, been determined in earlier proceedings, but it will also be an abuse if a party attempts to litigate an issue which should have been raised and determined in earlier proceedings.[78] However, estoppel will arise in that case only if there is a relevant connection or sufficient identification between the two litigants.[79]
[72] Walton at [393] (Mason CJ, Deane and Dawson JJ); Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 at [286] – [287] (McHugh J); Sheraz at [8] (Buss JA), at [118] – [119] (Murphy JA and Chaney J agreeing).
[73] Mineralogy v Sino Iron Pty Ltd [2015] WASC 454at [17] (Mineralogy) (Chaney J, citing Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130 (Kermani) at [97] (Robson AJA, Neave and Harper JJA agreeing)); Moore v Inglis (1976) 9 ALR 509 (Moore) at [514] – [515] (Mason J); Thirteenth Corporation Pty Ltd v State [2006] FCA 979; (2006) 232 ALR 491 at [32] (Jessup J).
[74] Mineralogy at[17] (Chaney J, citing Kermani at [97] (Robson AJA, Neave and Harper JJA agreeing)); Branir Pty Ltd v Wallco Pastoral Co Pty Ltd [2006] NTSC 70; (2006) 18 NTLR 127 at [20].
[75] Mineralogy at [17] (Chaney J, citing Kermani at [97] (Robson AJA, Neave and Harper JJA agreeing)); Moore at [514] – [515].
[76] See, eg, Reichel v Magrath (1889) 14 App Cas 665 and Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198 at [27] – [28].
[77] Sheraz at [120] (Murphy JA); see also MCC Proceeds Inc v Lehman Bros International (Europe) [1998] 4 All ER 675 esp 695 (Mummery LJ and Pill LJ agreeing).
[78] Sheraz at [11] (Buss JA) and the cases there cited. This category of abuse of process has been described as an extension of Anshun estoppel: Michael Wilson at [94]; Sheraz at [125] – [126] (Murphy JA and Chaney J agreeing).
[79] Legal Profession Complaints Committee v Rayney [2017] WASCA 78, (2017) 51 WAR 142 (Rayney) at [148] – [151].
Whether a subsequent action constitutes an abuse of process must be assessed by reference to guiding considerations of 'oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice'.[80] Sometimes the assessment is described as a 'broad merits-based decision'.[81] All matters which are logically or rationally relevant to the determination must be taken into account.[82]
[80] Sheraz at [134] ; see also, the discussion in Mineralogy at [159] – [179]; Westpac Banking Corp v Anderson [2017] WASC 106 at [61]; State Bank of New South Wales Ltd v Alexander Stenhouse Ltd (1997) Aust Torts Reports 81–423, 64,089 (Giles CJ Comm Div); Kermani at [97] (Robson AJA, Neave and Harper JJA agreeing); Sheraz at [134] (Murphy JA and Chaney J agreeing).
[81] Rayney at [230].
[82] Rayney at [230].
Among the matters which may be relevant to that issue will be:[83]
(i) The importance of the issue in and to the earlier proceedings, including whether it is an evidentiary or an ultimate issue;
(ii) The opportunity available and taken to fully litigate the issue;
(iii) The terms and finality of the finding as to the issue;
(iv) The identity between the relevant issues in the two proceedings;
(v) Any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceeding;
(vi) The extent of the oppression and unfairness to the other party if the issue was re-litigated and the impact of the re-litigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(vii) An overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.
[83] State Bank of New South Wales Ltd v Alexander Stenhouse Ltd (1997) Aust Torts Reports 81–423, 64,089 (Giles CJ Comm Div); Kermani at [97] (Robson AJA, Neave and Harper JJA agreeing); QBE Insurance (Australia) Ltd v Lois Nominees Pty Ltd and Ors [2012] WASCA 186 at [115]; Sheraz at [134] (Murphy JA and Chaney J agreeing).
The court should also consider whether there was reasonable justification for the second proceeding based on legitimate considerations of convenience, cost or the like.[84]
[84] Kermani at [97] (Robson AJA, Neave and Harper JJA agreeing); Sheraz at [134] (Murphy JA and Chaney J agreeing).
Arguments about abuse of process in the context of subsequent actions will often overlap with the concepts of res judicata and the various forms of estoppel (cause of action estoppel,[85] issue estoppel[86] and Anshun estoppel[87]. The three forms of estoppel have the potential to preclude assertion of a right or obligation, or the raising of an issue of fact or law, between parties to a proceeding or their privies.[88]
[85] Tomlinson at [22].
[86] Tomlinson at [22]; Blair v Curran (1939) 62 CLR 464, 510, 531-533; Jackson v Goldsmith (1950) 81 CLR 446 at [466] – [467].
[87] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (Anshun) at [598], [602] – [603].
[88] Tomlinson at [23].
When a party asserts rights or obligations, or raises issues, in successive proceedings, there may be, simultaneously, a res judicata or estoppel which has resulted from the final judgment in the earlier proceeding and conduct which constitutes an abuse of process in the subsequent proceeding.[89]
[89] Tomlinson at [24].
However, abuse of process is broader and more flexible than estoppel.[90]
[90] Tomlinson at [24].
In these reasons, when we make a determination as to whether the LPCC has proved its allegations that proceedings commenced and/or maintained by the practitioner were an abuse of process, we have applied the principles discussed above.
The LPCC's allegations that the practitioner acted with reckless indifference as to whether her conduct had the potential to mislead
The LPCC alleges, on a number of occasions in the Grounds, that the practitioner acted with reckless indifference to whether her statements to the court were liable to be misleading, or knew that an affidavit she had made was false and/or misleading in a material respect, or was recklessly indifferent to whether the affidavit was false or misleading in a material respect.
Those allegations raise the question as to the knowledge which must be proved in order to establish that a practitioner intended to mislead, or was recklessly indifferent to whether a statement was false or misleading. That issue was considered by the Court of Appeal in Giudice v Legal Profession Complaints Committee,[91] which was recently discussed by the Tribunal in Legal Services and Complaints Committee and Robertson.[92]
[91] Giudice v Legal Profession Complaints Committee [2014] WASCA 115 (Giudice).
[92] Legal Services and Complaints Committee and Robertson [2023] WASAT 127 (Robertson).
In Giudice the Tribunal had found that a solicitor who caused a client's affidavit to be sworn, filed and served in court proceedings, when that affidavit contained a false statement, had committed an act of unsatisfactory professional conduct because he had prepared the affidavit with reckless disregard for the truth or falsity of the statement. On appeal the Court of Appeal held that in disciplinary proceedings, a reckless disregard for whether a statement is false or misleading involves a subjective assessment as to the practitioner's state of mind. The Court of Appeal found that the Tribunal had erred because its reasoning suggested that it had assessed the practitioner's statement of mind on an objective basis – that is, what he should have known – rather than on the basis of his actual state of mind.
As the members of the Court of Appeal in Giudice acknowledged,[93] the term 'reckless' is capable of bearing different meanings, and its meaning in any given case will be determined by the context in which the term is used.[94]
[93] Giudice at [42] (Martin CJ); [81] (Buss JA), at [130] (Edelman J).
[94] Giudice at [42] – [44] (Martin CJ), at [81] – [82] (Buss JA), at [130] (Edelman J).
Martin CJ explained the different categories of professional misconduct or unsatisfactory professional conduct which may be involved when a practitioner provides information or makes a statement which is false or misleading:[95]
… when a practitioner provides information or makes a statement … which is false or misleading, there are (at least) three categories of case in which that conduct will constitute either professional misconduct or unsatisfactory professional conduct. First, the practitioner might know that the statement or information is false or misleading. Second, the practitioner might have a reckless disregard to the question of whether the statement of information is false or misleading, and third, the practitioner might be negligent or careless. Because the first two categories will only apply if, assessed subjectively, the practitioner is either aware that the statement or information is false or misleading, or wilfully indifferent to its truth, in the absence of special circumstances one would ordinarily expect a finding of either category of conduct to be characterised as a substantial departure from the standard of conduct reasonably expected of a practitioner such as to constitute professional misconduct, within the taxonomy of the [LP] Act. In cases falling within the third category – that of negligence or carelessness – whether or not the practitioner's conduct is either unsatisfactory professional conduct or professional misconduct will depend upon the nature and degree of negligence or carelessness involved.' (footnotes omitted)
[95] Giudice at [8].
Martin CJ explained that in disciplinary proceedings of the kind with which we are presently dealing, an allegation of reckless disregard of the truth by a legal practitioner will only be made out if it is established that the practitioner's actual state of mind was that of indifference to the truth of the relevant statement,[96] or 'not caring in the [person's] own heart and conscience whether it was true or false'.[97]
[96] Giudice at [44] (Martin CJ), referring to Fidock v Legal Profession Complaints Committee [2013] WASCA 108.
[97] Giudice at [44] (Martin CJ), quoting Le Lievre v Gould [1893] 1 QB 491.
Edelman J agreed with Martin CJ that the allegation of recklessness was an allegation of subjective recklessness 'in the sense of [Mr Giudice] being indifferent to the truth of the statement or 'not caring in [his] own heart and conscience whether it was true or false'.[98]
[98] Giudice at [130] (Edelman J).
Buss JA agreed that the assessment required was a subjective one. He concluded that 'a reckless disregard or indifference involves, at least, a subjective element of actual and conscious disregard of or indifference to the risks created by the conduct'.[99] In the context of the allegation that the practitioner had recklessly disregarded whether the statement in his client's affidavit was true or false, Buss JA considered that that allegation comprised two subject elements:[100]
The appellant will have recklessly disregarded whether the statement was true or false if:
(a) the appellant was aware, when he settled the statement … that there was a risk that the statement was untrue or false; and
(b)the appellant consciously disregarded the risk.
Those elements are subjective in that they are concerned with the appellant's actual state of mind.
The notion of 'conscious disregard' by the appellant of the risk, being the second element, connotes that the appellant wilfully or deliberately shut his eyes to, or excluded from contemplation, the risk that the statement was untrue or false.
[99] Giudice at [87] (Buss JA).
[100] Giudice at [94] – [97] (Buss JA).
As we have observed, the individual instances of the conduct the subject of Grounds 1, 2 and 3 were, individually, serious or very serious instances of professional misconduct. Taken collectively, the practitioner's conduct overall constituted extremely serious professional misconduct. As our findings make clear, the respondent's conduct was such as to justify a finding that she was not a fit and proper person to engage in legal practice.
Ground 1 was concerned with six instances of either maintaining, or commencing and maintaining, applications or appeals which were an abuse of process. The conduct the subject of Ground 2 encompassed a further three instances of the respondent commencing applications or appeals, each of which had no proper basis, and thereby constituted an abuse of process, and was conduct which would be regarded as disgraceful or dishonourable to practitioners of good repute and competence. Furthermore, as explained in our reasons, in so far as the conduct the subject of Ground 1 was concerned, on the majority of occasions, the respondent had been told by the relevant court that the proceedings were, in effect, an abuse of process and that an alternative proper course of action was available to her to address her grievance, and yet she nevertheless continued to commence and maintain subsequent applications or appeals.[445]
[445] Primary Reasons at [216], [232], [237], [250].
Each of those instances of conduct was demonstrative of a failure to appreciate and observe the most fundamental standards expected of practitioners, namely their duties to the courts not to pursue baseless proceedings, and thereby to waste the time and resources of the courts, and their duties of fairness to other parties not to pursue baseless proceedings so as to unnecessarily cause inconvenience and costs to those other parties.[446]
[446] Primary Reasons at [280], [408] – [409].
We found that each of those instances of maintaining, or commencing and maintaining, applications or appeals which were an abuse of process was, individually and collectively, conduct which would reasonably be regarded as disgraceful or dishonourable by practitioners of good repute and competence. We also found that such conduct, when engaged in by a practitioner acting on their own behalf in litigation, gives rise to an apprehension that legal practitioners are willing to pursue court proceedings where such proceedings could not be justified, and to do so in their own self-interest, and that conduct of that kind diminishes public confidence in the administration of justice and may have the effect of bringing the profession into disrepute.[447] We found that such conduct, individually, as well as collectively, was conduct which constituted a breach of rule 6(2)(b) and rule 6(2)(c) of the Conduct Rules, in that it was prejudicial to, or would diminish public confidence in, the administration of justice and have the effect of bringing the profession into disrepute.[448] Finally, we found that a practitioner who was willing to engage in multiple instances of such conduct was someone who could not command the personal confidence of their clients, fellow practitioners, or judges, and consequently that the conduct justified a finding that the respondent was not a fit and proper person to engage in legal practice.[449]
[447] Primary Reasons at [281].
[448] Primary Reasons at [288] and [409].
[449] Primary Reasons at [283], [408] – [409].
Ground 2 also encompassed a number of instances, on various dates, on which the respondent made submissions or communicated with the court in a manner which was discourteous, intemperate and scandalous. The practitioner's conduct on each of those dates was appalling. We found that that conduct was conduct which would be regarded as disgraceful or dishonourable to practitioners of good repute and competence.[450] We also found that that conduct was a breach of rule 6(2)(b) and rule 6(2)(c) of the Conduct Rules because it conveyed a lack of respect for the court and the justice system more broadly, which necessarily had the potential to diminish public confidence in the administration of justice and to bring the profession into disrepute.[451] And we found that the practitioner's conduct on those occasions, on the various dates, individually and collectively, was such as to justify a finding that she was not a fit and proper person to engage in legal practice, because her conduct was fundamentally at odds with what is expected of legal practitioners, and that consequently practitioners, clients and the courts could not have the confidence in the respondent which is essential for fitness to practice.[452]
[450] Primary Reasons at [419].
[451] Primary Reasons at [419].
[452] Primary Reasons at [421].
The other conduct the subject of Ground 2 encompassed an instance of conduct in which the respondent misread from transcript in a manner which had the potential to mislead the appeal court, and that she did so with reckless indifference. We found that the respondent's conduct in not accurately reading from the transcripts and being recklessly indifferent to the potential that she would mislead the appeal court, was conduct which was not different in nature to implying a false state of affairs or creating a misleading impression, each of which constitutes a breach of a practitioner's paramount duty of honesty to the court.[453] We found that the respondent's conduct constituted conduct which would be regarded as disgraceful or dishonourable to practitioners of good repute and competence.[454] We also found that that conduct was a breach of rule 6(2)(b) and rule 6(2)(c) of the Conduct Rules because to mislead a court in that way necessarily has the potential to diminish public confidence in the administration of justice and to bring the profession into disrepute.[455]
[453] Primary Reasons at [416].
[454] Primary Reasons at [417].
[455] Primary Reasons at [417].
The conduct the subject of Ground 3 was that practitioner swore and filed an affidavit that was false in a material respect, namely that the respondent deposed that the presiding judge made a comment in respect of the practitioner's submissions when the true position was that the presiding judge did not make that comment. We found that the respondent was recklessly indifferent as to whether the affidavit was false and as to whether the appeal court would be misled by it.[456] We found that the respondent's conduct in relation to the affidavit would be regarded as disgraceful or dishonourable to practitioners of good repute and competence. We found that the practitioner breached rule 34(1) of the Conduct Rules in that she recklessly misled the appeal court, and that she failed to correct her evidence when it became apparent that the affidavit was false, and thereby breached rule 34(2) of the Conduct Rules. We also found that the respondent's conduct constituted a breach of rule 6(2)(b) and rule 6(2)(c) of the Conduct Rules because the conduct was liable to undermine public confidence in the integrity and honesty of legal practitioners, which necessarily has the potential to diminish public confidence in the administration of justice and to bring the profession into disrepute.
[456] Primary Reasons at [428].
We found that the nature of that conduct was fundamentally at odds with the paramount duty of honesty and candour which a legal practitioner owes to the court, and consequently we were unable to see how the respondent could command the confidence of practitioners, clients and the courts which is essential to engage in legal practice. We found that the practitioner's conduct was such as to justify a finding that she is not a fit and proper person to engage in legal practice.
We explained in the Primary Reasons our reasons for all of our conclusions that the practitioner's conduct would be regarded as disgraceful or dishonourable to practitioners of good repute and competence, constituted a breach of the Conduct Rules, and was such as to justify a finding that she is not a fit and proper person to engage in legal practice. It is not necessary to repeat those reasons here.
Professional misconduct occasioned by misleading a court in submissions or by swearing a false affidavit, in particular, constitutes so serious a breach of the fundamental duties of a practitioner as to be incompatible with the continued privilege of engaging in legal practice. In those respects alone, and all the more so in conjunction with the other serious instances of conduct amounting to professional misconduct, the practitioner's conduct demands a penalty that protects the public and maintains the standards of the profession by preventing the practitioner from being able to engage in legal practice. In the circumstances of this case, where the practitioner does not hold a practising certificate, that amounts to a question whether the Tribunal should make an order under s 440(a) or s 440(c) of the LP Act.
A global penalty is appropriate
In circumstances, as here, where the penalty called for is a strike off, it is appropriate to approach the question of penalty on a global basis so as to impose a penalty for the respondent's professional misconduct as a whole.[457]
What penalty is appropriate
[457] Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) at [18] and [19].
The question then is whether the appropriate penalty in this case is an order under s 440(a) or s 440(c) of the LP Act. However, the conduct involved is of such seriousness as to leave us in no doubt that the appropriate penalty is to recommend that the respondent be struck off. We have reached that conclusion for the following reasons.
First, the conduct the subject of these proceedings was not some isolated incident. There is nothing to suggest that the conduct was attributable to some personal circumstance on the practitioner's part which represented an anomaly from her usual behaviour. On the contrary, the conduct the subject of our findings of professional misconduct involved multiple instances of conduct, each of which, in and of themselves, constituted serious professional misconduct and which occurred over a period of four years from 2013 to 2017.
Secondly, the respondent's conduct involved multiple departures from the most fundamental duties of a practitioner and of the essential qualities for legal practice, namely fairness, honesty and candour, and integrity. The conduct is indicative of a fundamental lack of understanding of the standards of behaviour expected of a legal practitioner and a lack of respect for the courts. It must be doubted whether a person who engaged in such conduct over a sustained period has the personal qualities essential to legal practice. That conduct, on so many occasions, over four years, strongly supports the conclusion we reached that the respondent is not a fit and proper person to engage in legal practice. Absent some evidence of a significant change in attitude or behaviour, so as to suggest that there is some prospect of rehabilitation, we are unable to see any basis on which to conclude that the respondent is now a fit and proper person, so that if she were merely precluded from being granted a practising certificate for a specified period that she might be fit to resume practice after that time period.
Thirdly, while we acknowledge that the conduct the subject of our findings took place over five years ago, and in some instances up to a decade ago, the respondent's disciplinary history supports the conclusion that she has continued to engage in conduct of a similar nature.
The summary of the respondent's disciplinary history to which we have already referred is sufficient to disclose that both the conduct the subject of the finding of this Tribunal in 2015, and the conduct which caused the SA Tribunal to recommend a report be made to the South Australian Supreme Court, bears some similarity to some of the conduct the subject of the present proceedings. What that other disciplinary conduct thus demonstrates is a continuing inclination on the respondent's part – and in the case of the SA Tribunal proceedings, up to as recently as 2021 – to engage in conduct which is incompatible with the standards expected of a practitioner. The continuation of such conduct is indicative of an unwillingness to meet the standards of conduct expected of a legal practitioner or of an inability to appreciate or understand what those standards are, and why they are important to the operation of the legal profession and to our justice system.
We accept the applicant's submission that the practitioner's disciplinary history, and in particular the finding by the SA Tribunal that the respondent is not fit and proper to practise law as a result of her conduct in the course of those proceedings, are highly relevant to whether this Tribunal could be satisfied that the respondent could be deemed fit to practise again, if precluded from doing so for a period. The applicant submitted, and we accept, that this Tribunal could not be so satisfied.
Fourthly, the respondent has expressed no remorse whatsoever for her conduct. Nor has she offered any explanation for her conduct. To the extent that she has participated in this penalty stage of the proceedings, solely by sending emails and/or submissions, her conduct suggests she has no remorse. That is because she has continued to claim that the Tribunal does not have jurisdiction to deal with the Application, despite that question having been determined, first in 2020 by the President,[458] and affirmed by us in the Primary Reasons, and despite the fact that the respondent has not commenced an appeal against the Orders.
[458] Legal Profession Complaints Committee and McCardle [2020] WASAT 51 at [4] – [35].
The respondent has chosen not to engage with the Tribunal's findings as to her conduct, relevant to the determination of penalty. We should mention here that in her communication to the Tribunal, by email dated 23 April 2024 at 7.06 pm, the practitioner indicated that she would not attend the penalty hearing today 'unless ordered to do so by [the Tribunal and that] ordering attendance of the parties and or their lawyers is the normal order if a court or a tribunal or a commission has any jurisdiction to do so'. We have made no order requiring the attendance of the respondent at either the primary hearing or at this penalty hearing. It is entirely up to the respondent, as it is for all practitioners who are the subject of disciplinary proceedings, whether they wish to attend and participate in those proceedings. The Tribunal has, however, made clear at all times, that the practitioner may attend the hearings by video‑conference or telephone. The fact that the practitioner has chosen not to participate, other than by sending emails and submissions by email, reflects a continuing unwillingness on her part to accept her professional failings and thus no prospect of rehabilitation if she were precluded from being granted a practising certificate for a time.
Finally, there is no evidence of any other matter of mitigation which the Tribunal could take into account to ameliorate our assessment of the seriousness of the conduct, or of the penalty necessary to protect the public and to maintain the standards of the profession.
Taking all of these considerations into account, we are left in no doubt whatsoever that this is a case in which the only appropriate penalty is to recommend that the respondent be struck off the roll of practitioners in South Australia.
Costs
The applicant seeks an order for costs in the amount of $55,384.
Principles in relation to costs
As we have already observed, the Costs Application was made pursuant to s 87(2) of the SAT Act.
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.[459] However, the Tribunal has a discretion to order a party to pay all or any of the costs of another party.[460]
[459] SAT Act, s 87(1).
[460] SAT Act, s 87(2).
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.[461]
[461] Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 at [51] (Murphy JA and Corboy J agreeing); see also Young v Legal Profession Complaints Committee [2022] WASCA 52 (Young) at [259].
The Tribunal's discretion in relation to the award of costs is a wide one. Nevertheless, it is exercised judiciously and not capriciously.
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.[462] 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.[463]
[462] Young at [261] (Buss P); Medical Board of Western Australia v Roberman [2005] WASAT 81 (S); (2005) 39 SR (WA) 47 (Roberman) at [30], referred to with approval in Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [35].
[463] Roberman at [30].
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.[464]
[464] Medical Board of Australia and Costley [2013] WASAT 2 at [66].
An assessment of costs should be approached in a broad fashion and should not descend into an inquiry into small items of expenditure.[465]
[465] Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302 at [67].
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.[466] The Tribunal must also be satisfied that the costs claimed are not excessive.[467] Any costs awarded must be compensatory and not punitive in nature.[468]
[466] Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) (Marvelle) at [48] – [49].
[467] Rae and Prima Homes Nominees Pty Ltd [2020] WASAT 24 at [69].
[468] SAT Act, s 87(3).
Furthermore, the Tribunal must explain why an award of costs is reasonable and, if so, in what amount.[469]
[469] Panegyres v Medical Board of Australia[2020] WASCA 58 at [393]; Marvelle at [48] – [49].
Disposition
In respect of the costs up to and including the hearing on 5 May 2022, the applicant limits its claim for costs to disbursements only (comprising Senior Counsel's fees and the Tribunal's filing fee). The total amount of Senior Counsel's fees was $49,686. That amounts to approximately 92 hours charged at $539 per hour which was the applicable scale rate for Senior Counsel. Although its case was wholly documentary, the number of documents, and the many separate proceedings which had to be traversed and understood meant that this case was more factually complex than might otherwise have been expected. In those circumstances, we consider the number of hours of work claimed (which itself was written down by Senior Counsel) was entirely reasonable, as was the scale rate at which it was charged.
By the time the Tribunal delivered the Primary Reasons, the Senior Counsel previously engaged by the applicant had been appointed to the Supreme Court, and the applicant elected not to brief new (external) counsel. Rather, the remaining counsel work was undertaken by Mr Bailey, a solicitor employed by the applicant. He appeared at the hearings concerned with the Orders, undertook the preparation of submissions for the penalty and costs hearing, and attended at this hearing. We consider that the applicant should be granted costs in respect of Mr Bailey's legal work. That is entirely reasonable.
The applicant seeks that the Tribunal fix a reasonable amount for Mr Bailey's work which it says amounted to approximately 12 hours of work. At the applicable scale rate of $429 per hour, that amounts to $5,148. We think that the amount of time spent, and the rate which the applicant seeks be applied, are entirely reasonable.
We are satisfied that an award of costs in the sum of $55,384 is fair, reasonable and appropriate.
Orders
The Tribunal orders:
1.Pursuant to s 438(2)(b) and s 440(a) of the Legal Profession Act 2008 (WA), the Tribunal recommends the respondent's name be removed from an interstate roll, being the Roll of Practitioners maintained in South Australia.
2.Pursuant to s 87(2) of the State Administrative Tribunal Act2004 (WA) the respondent pay the applicant's costs fixed in the sum of $55,384 with such costs to be paid to the applicant within 30 days or as otherwise agreed between the parties.
3.Notwithstanding Order 3 of the orders made on 22 December 2023, the applicant may disclose an unredacted copy of the Tribunal's reasons delivered on 22 December 2023 to any person or body in accordance with s 446(2) of the Legal Profession Act 2008 (WA) and those persons or bodies may use or disclose the reasons for the purpose of carrying out their regulatory functions.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
PM
Associate to the Honourable Justice Pritchard
6 MAY 2024
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