LEGAL SERVICES AND COMPLAINTS COMMITTEE and ROBERTSON - [2023] WASAT 127

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION:   LEGAL SERVICES AND COMPLAINTS COMMITTEE and ROBERTSON [2023] WASAT 127
MEMBER:   JUDGE K GLANCY, DEPUTY PRESIDENT
MR D AITKEN, SENIOR MEMBER
MR R POVEY, MEMBER

HEARD:   11, 12 MAY 2023 AND 26 JUNE 2023
DELIVERED          :   19 DECEMBER 2023
FILE NO/S:   VR 46 of 2021
BETWEEN:   LEGAL SERVICES AND COMPLAINTS COMMITTEE
Applicant
AND
JOHN ANDREW ROBERTSON
Respondent

Catchwords:

Vocational regulation – Legal practitioner – Allegation of professional misconduct – whether practitioner acting or purported to act or caused his firm to act or to purport to act as the solicitor of record when not authorised to do so – whether practitioner knowingly, misled another practitioner or the Court by making statements he knew to be false intending to mislead – whether practitioner was recklessly indifferent as to whether statements were misleading and as to whether others would be misled by them – Findings of professional misconduct

Legislation:

Corporations Act 2001 (Cth), s 437A, s 440, s 444A, s 440D, s 444A, s 444D, s 444D(1)(b), s 444E, s 440E(3)
Legal Profession Act 2008 (WA), s 402, s 403, s 403(1)(a), s 404, s 428(1), s 438(1), s 438(2), s 442
Legal Profession Uniform Law Application Act 2022 (WA), s 57(1), s 260, s 269, s 402, s 403, s 438(1)

Result:

The Practitioner is guilty of professional misconduct

Category: B

Representation:

Counsel:

Applicant	:	P Cahill SC and N Pope
Respondent	:	J Taylor SC and A Mossop

Solicitors:

Applicant	:	Legal Services and Complaints Committee
Respondent	:	Moray & Agnew Lawyers

Cases referred to in decision(s):

Angus v Clifford [1891] 2 Ch 449
Fidock v Legal Profession Complaints Committee [2013] WASCA 108
Giudice v Legal Profession Complaints Committee [2014] WASCA 115
Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115
Le Lievre v Gould [1893] 1 QB 491
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 Services and Complaints Committee and Lourey [2023] WASAT 77
Palmer v Dolman [2005] NSWCA 361
Wright v David John Neale Lemon as executor of the estate of Michael John Maynard Wright [No 2] [2021] WASC 159

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The Legal Services and Complaints Committee (LSCC or Applicant) applied, on 18 June 2021, for a finding by the State Administrative Tribunal (Tribunal) that John Andrew Robertson (Practitioner) engaged in professional misconduct pursuant to s 438(1) of the Legal Profession Act 2008 (WA) (LP Act). The LSCC seeks that the Tribunal impose a penalty under s 438(2) of the LP Act and an order that the Practitioner pay the Applicant's costs of the proceeding.
These reasons for decision deal only with the question of whether the Practitioner is guilty of professional misconduct or unprofessional conduct (which is an alternate finding open to us under s 442 of the LP Act).
The Applicant identified six grounds upon which it says we could make findings that the Practitioner's conduct amounted to professional misconduct. Those Grounds were set out in Annexure A to its application.
The allegations arise from the Practitioner's involvement in a particular Supreme Court Proceeding (SC Proceeding) in which he acted for the First and Second Defendants (First Defendant and Second Defendant). In the course of the SC Proceeding, the First Defendant was placed into administration and subsequently entered into a deed of company arrangement (DOCA). The effect of those matters was, in summary, that the Plaintiff in the SC Proceeding (Plaintiff) could not continue the SC Proceeding against the First Defendant without the consent of the relevant administrator or leave of the Court and that the Practitioner and his firm, Williams + Hughes (Firm), could only continue to represent the First Defendant with the consent of the relevant administrator, and then, was required to act on that administrator's instructions.
The Plaintiff did not obtain the consent of the administrator to continue the SC Proceeding against the First Defendant. Nor did it obtain the leave of the court to do so.
The Practitioner did not obtain the consent of the relevant administrator to act in the SC Proceeding (although that would only have been necessary had the Plaintiff obtained the consent of the administrator or leave of the court to continue the SC Proceeding against the First Defendant).
As the SC Proceeding progressed, the Practitioner took various steps that, on their face, appeared to mean that he was acting on behalf of the First Defendant. We set them out in detail later in these reasons.
In Ground 1, the LSCC alleges that the Practitioner engaged in professional misconduct by causing his firm to act as solicitors on the record for the First Defendant and acting as solicitor and counsel for the First Defendant in the SC Proceeding without the authority or instructions of the administrators.
When the Plaintiff's solicitor and counsel and the court eventually raised the issue with the Practitioner, he offered explanations which the LSCC allege amount to knowingly or, alternatively, recklessly misrepresenting to the court and a fellow practitioner his conduct in the SC Proceeding in that he said that he had known, since he became aware of the appointment of the administrator and DOCA:
(i)that the SC Proceeding could no longer continue against the First Defendant;
(ii)that he no longer acted for the First Defendant; and
(iii)anything he had done that may have conveyed a different impression was done inadvertently.
The LSCC says that the Practitioner's explanations were not truthful and that each occasion on which he conveyed that state of mind to the court or to a fellow practitioner amounted to professional misconduct or unsatisfactory professional conduct.
The Practitioner offers various explanations for the things he did that conveyed an impression that he was acting for the First Defendant and denies that he acted for, or purported to act for, the First Defendant after he became aware of the fact that the First Defendant was in administration and had entered into the DOCA. He also denies that his communications, which form the basis of Grounds 2 – 6, were false or misleading in any respect.

Outcome

For the reasons which we set out below, we are satisfied that the allegation in each Ground has been made out. We have also found that the conduct in each case constitutes professional misconduct.

The statutory regime

The proceedings were commenced by the Applicant by a referral to the Tribunal under s 428(1) of the LP Act. The referral to the Tribunal took place on 18 June 2021. Since that time the LP Act has been repealed by s 260 of the Legal Profession Uniform Law Application Act 2022 (WA) (Application Act) which commenced on 1 July 2022.
Nevertheless, this application is still to be determined under the LP Act for reasons which were set out in Legal Profession Complaints Committee and Goldsmith[1] at [6] – [35].
[1] Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43 (S). While the decision in that matter was set aside, and the matter remitted to the Tribunal, for there was no criticism of this aspect of the Tribunal's reasoning.
Section 57(1) of the Application Act established the Legal Services and Complaint Committee (LSCC). Section 269 of the Application Act provides that the LPCC continues under the Application Act as the LSCC. Accordingly, while the matter continues under the LP Act, the Applicant is, since the commencement of the Application Act, properly named the LSCC.
Section 438(1) of the LP Act provides that the Tribunal 'has jurisdiction to make a finding that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct'. Section 442 provides that the Tribunal may find a practitioner guilty of unsatisfactory professional conduct even though the referral alleged professional misconduct.

The definitions of unsatisfactory professional conduct and professional misconduct

Section 402 and s 403 of the LP Act contain non-exhaustive definitions of the terms 'unsatisfactory professional conduct' and 'professional misconduct', respectively.
Section 402 of the LP Act states as follows:
For the purposes of this Act —
unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
Section 403 of the LP Act states as follows:
(1)For the purposes of this Act —
professional misconduct includes —
(a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(2)For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.
Section 404 of the LP Act identifies, without limiting s 402 or s 403, conduct which is capable of constituting unsatisfactory professional conduct or professional misconduct.
The position in Western Australia is that the two limbs of the common law test of professional misconduct, which were articulated in Kyle v Legal Practitioners' Complaints Committee,[2] (but with reference to 'unprofessional conduct', which we now call professional misconduct) still apply as separate bases for a finding of professional misconduct. That position was recently explained in detail by the Tribunal in Legal Services and Complaints Committee and Lourey.[3] We adopt that reasoning without repeating it.
[2] Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115.
[3] Legal Services and Complaints Committee and Lourey [2023] WASAT 77.
In Ground 1, the Applicant alleges that the Practitioner's conduct amounts to professional misconduct as defined in s 403(1)(a) of the LP Act and as described in the second limb of the Kyle test. In Grounds 2 – 6 the Applicant alleges that the Practitioner's conduct constitutes professional misconduct as defined in s 403(1)(b) of the LP Act and as described in both the first and second limbs of the Kyle test.

The burden and standard of proof

We adopt what the Tribunal said about the burden and standard of proof in the following passage of Legal Profession Complaints Committee and Chang:[4]
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.
[4] Legal Profession Complaints Committee and Chang [2019] WASAT 67 (Chang) at [8].
In these reasons, when we express ourselves to be satisfied, and make a finding, we do so on the balance of probabilities and on the basis of evidence which we regard as clear and cogent, having regard to what was said in Briginshaw.

Inferences

The Applicant's case is based on inferences. In this case, where we are asked to draw an inference of serious misconduct from circumstantial evidence, we must:
(a)consider the weight to be given to the united force of all of the circumstances taken together;
(b)apply the standard of proof at the final stage in the reasoning process;
(c)weigh the inference to be drawn from the proved facts against realistic possibilities as distinct from possibilities that might be regarded as fanciful; and
(d)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.[5]
[5] Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43 at [31] citing Palmer v Dolman [2005] NSWCA 361 at [41].

The evidence

The Applicant called no witnesses and tendered no affidavit evidence. Rather, its case was based entirely on the documents tendered in evidence and inferences that it submitted should be drawn from them.
The Practitioner gave evidence in his case. His witness statement dated 13 March 2023[6] and his supplementary witness statement dated 24 April 2023[7] stood as his evidence-in-chief. He was cross‑examined at length, but not re-examined.
[6] The Practitioner's Witness Statement of 13 March 2023 was admitted as Exhibit 7.
[7] The Supplementary Witness Statement dated 24 April 2023 was admitted as Exhibit 8.
In addition, the Practitioner tendered a witness statement from Mr Christopher Zelestis KC dated 3 April 2023.[8] Mr Zelestis KC was not cross-examined on his affidavit.
[8] Exhibit 9.
The Practitioner also tendered documents on which his case relies.[9]
[9] Respondent's Bundle of Documents dated 1 September 2022 (Volumes 1 and 2) (Exhibit 4); Respondent's Supplementary Bundle of Additional Documents dated 24 April 2023 (Exhibit 5); Respondent's Amended Response to the Applicant's Statement of Facts and Contentions dated 27 January 2022 (Exhibit 6); Bundle of Documents produced in response to the summons dated 8 May 2023 (Exhibit 10).

The Practitioner

We are satisfied of and make the following findings of fact in relation to the Practitioner.
The Practitioner was admitted to practice in Western Australia in 2004.[10]
[10] Exhibit 1, para 1.1.
At the time of the incidents the subject of the complaint, the Practitioner was an Australian legal practitioner within the meaning of s 5(a) of the LP Act.[11]
[11] Exhibit 1, para 1.1.
At the time of the incidents, the subject of the complaint, the Practitioner, was a legal practitioner director of the Firm. He was appointed to that position at the Firm in 2014.[12]
[12] Exhibit 7, para 5.
The Practitioner commenced work at the Firm in approximately 2009 and practised in civil litigation and general commercial work. Since his appointment as a director of the Firm, his work largely has focussed on civil litigation, property law, and wills and estates.[13]
[13] Exhibit 7, para 5.
At the time the impugned conduct took place, the Practitioner had a busy practice and, as is regrettably all too common in the law, often worked 12 – 14 hour days and on weekends and rarely took annual leave. In addition to the legal work undertaken on behalf of client, his role at the Firm encompassed business development and supervision of more junior practitioners, and involvement in the general administration of the Firm.[14]
[14] Exhibit 7, para 6.

Credibility of the Practitioner

The Practitioner's credibility is in issue in this proceeding. This is because the allegations made against the Practitioner are denied by him. Those allegations concern his state of knowledge or state of mind at particular times.
The Practitioner submits that, in evaluating the explanations given at the hearing as to what he believed at an earlier point in time, we should have regard to the following statement:[15]
Memory is a reconstructive process that is susceptible to distortion. Memory distortions can result from external information such as documents relating to a particular matter. Memory distortions can also occur simply with the passage of time and repeated recounting of events. This is partly because over time memories typically become less highly detailed and specific and more broad and generalised as the information is repeatedly retrieved and re-encoded.
A witness is subject to memory biases. This reflects people's natural bias to 'fill in the gaps' with memory, which are often inaccurate accounts of actual events. Moreover, memories can be lost or altered. If the content of a memory is updated at the time of retrieval, memory distortion can occur of which the witness may be unaware.
[15] Wright v David John Neale Lemon as executor of the estate of Michael John Maynard Wright [No 2] [2021] WASC 159 at [205] – [206] (Le Miere J).
The effect of that observation is that the fact that although a witness may have erred in recounting their state of mind at an earlier time, it does not necessarily mean that they did so deliberately or even with a reckless disregard for the truth.
However, in this case, the central issue was whether the Practitioner understood, from the time he learned of the appointment of administrators to the First Defendant in 2017, and of the fact that the First Defendant had entered into the DOCA, that the SC Proceeding no longer continued against the First Defendant and that he no longer acted for the First Defendant or whether he took no account of those matters when he took certain actions in that proceeding.
The Practitioner's inability to recall certain matters is not directed at his memory of the central issue, but to explanations he offered for things he said and did that look, to an outside observer, as if he did not know that the SC Proceeding did not continue against the First Defendant. When asked why he wrote, or did, or said certain things the Practitioner frequently said he could not recall what he had in mind in making the statement. The Practitioner says we should bear in mind that memory often fails with time and that we should find that the Practitioner was being honest when he said he could not remember certain things, rather than find that in doing so he was being dishonest or obfuscating.
We observed the Practitioner give evidence. We observed that, at times he became very frustrated with the cross-examination and that resulted in him appearing to argue with the Applicant's counsel. While that is regrettable, it is also understandable given the circumstances in which the Practitioner found himself giving evidence. It did not influence our view of the honesty, accuracy and reliability of his evidence.
We accept that on many issues, the Practitioner gave honest evidence.
We also accept that it can be difficult, many years after an event, to explain what one knew, or thought, or why one took certain actions. We accept that that issue had some bearing on the Practitioner's evidence.

We do, however, find that, in the end, the Practitioner's efforts to explain the conduct which is relied upon to establish Ground 1 was simply not plausible. We set out our reasons for finding particular evidence to be implausible where we refer to that evidence elsewhere in these reasons.
We also find that, on occasions, the Practitioner gave two or more explanations for his conduct which were inconsistent. We also set out our reasons for that finding where we refer to that evidence elsewhere in these reasons.
We also find that the Practitioner's denials must be rejected when they are considered against the united force of all of the contemporaneous evidence of the actions he took in the SC Proceeding and the contemporaneous communications he had with the other parties about the SC Proceeding, even having regard to the standard of proof which applies.
Further, we found that the Practitioner's explanation for the contents of the emails he sent and the affidavits he filed after 17 July 2019, which are the basis for the allegations in Grounds 2 – 6, must be rejected. While the Practitioner accepted that aspects of them could have been written with more clarity and could be thought to be misleading, he said there was nothing in them that was written with the intention to mislead. We have found his statement that the communications reflected the true state of his knowledge to be false having regard to the united force of all of the circumstantial evidence taken together.

Background to the alleged conduct

We turn then to the background to the allegations made against the Practitioner. In relation to those matters we are satisfied and make the following findings of fact.
In September 2016, Satterley Property Group Pty Ltd (Plaintiff) commenced proceedings in the Supreme Court of Western Australia against Ironbridge Holdings Pty Ltd (First Defendant), its director Mr Ian Wallace (Second Defendant), Mr Nicholas Wallace (Third Defendant), Leveque Group Pty Ltd (Fourth Defendant) and Piara Landholdings Pty Ltd (Fifth Defendant). The claim made by the Plaintiff was that the First and Second Defendant had engaged in misleading and deceptive conduct to sell a parcel of land to the Fifth Defendant which was a developer linked to the Third Defendant.
Fletcher Law acted for the Plaintiff and briefed Mr Penglis SC to act as counsel for the Plaintiff.[16]
[16] Mr Penglis was appointed Senior Counsel in November 2018 while the SC Proceeding was ongoing. We have referred to Mr Penglis as Mr Penglis SC throughout these reasons.
Initially, all of the defendants were represented by DLA Piper and a combined defence was filed on behalf of each of the First to Fifth Defendants.
On 27 January 2017, the Firm filed a notice of change of solicitors to act for the First and Second Defendants and the Practitioner assumed day to day conduct of the proceeding on behalf of those defendants.
Also on 27 January 2017, Chalmers Legal Studio commenced acting for the Fifth Defendant.
On or about 21 July 2017, the First Defendant was placed into administration. Mr Neil Cribb and Mr Greg Dudley of RSM Australia were appointed as administrators.
On 15 September 2017, the First Defendant entered into the DOCA, pursuant to s 444A of the Corporations Act 2001 (Cth) (Corporations Act). The administrators then became the DOCA administrators.
The Plaintiff was a creditor of the First Defendant and accordingly became bound by the terms of the DOCA.

Relevant Corporations Act provisions

Four provisions of the Corporations Act are important in this proceeding and were important in the SC Proceeding. They are s 437A, s 440D, s 444D and s 444E. Because of their importance in this matter, we turn now to set them out in full.
Section 437A provides as follows:
437ARole of administrator
(1)While a company is under administration, the administrator:
(a)has control of the company's business, property and affairs; and
(b)may carry on that business and manage that property and those affairs; and
(c)may terminate or dispose of all or part of that business, and may dispose of any of that property; and

(d)may perform any function, and exercise any power, that the company or any of its officers could perform or exercise if the company were not under administration.

(2)Nothing in subsection (1) limits the generality of anything else in it.

Note: A PPSA security interest in property of a company that is unperfected (within the meaning of the Personal Property Securities Act 2009) immediately before an administrator of the company is appointed vests in the company at the time of appointment, subject to certain exceptions (see section 267 of that Act).

The effect of s 437A of the Corporations Act was that, from the date the administrators were appointed, they assumed control of the First Defendant's business, property and affairs.
Section 440D of the Corporations Act provides as follows:
440DStay of proceedings
(1)During the administration of a company, a proceeding in a court against the company or in relation to any of its property cannot be begun or proceeded with, except:
(a)with the administrator's written consent; or
(b)with the leave of the Court and in accordance with such terms (if any) as the Court imposes.
(2)Subsection (1) does not apply to:
(a)a criminal proceeding; or
(b)a prescribed proceeding.
The effect of s 440D of the Corporations Act was that the SC Proceeding could not be proceeded with against the First Defendant except with the administrators' consent or with the leave of the Supreme Court.
Section 444D of the Corporations Act provides as follows:
444DEffect of deed on creditors
(1)A deed of company arrangement binds all creditors of the company, so far as concerns claims arising on or before the day specified in the deed under paragraph 444A(4)(i)
(2)Subsection (1) does not prevent a secured creditor from realising or otherwise dealing with the security interest, except so far as:
(a)the deed so provides in relation to a secured creditor who voted in favour of the resolution of creditors because of which the company executed the deed; or
(b)the Court orders under subsection 444F(2).
(3)Subsection (1) does not effect a right in relation to an owner or lessor of property has in relation to that property, except so far as:
(a)the deed so provides in relation to an owner or lessor of property who voted in favour of the resolution of creditors because of which the company executed the deed; or
(b)the Court orders under subsection 444F(4).
(3A)Subsection (3) does not apply in relation to an owner or lessor of PPSA retention of title property of the company.
Note: Subsection (2) applies in relation to an owner or lessor of PPSA retention of title property of the company. Such an owner or lessor is a secured creditor of the company (see section 51F (meaning of PPSA retention of title property).
(4)Section 231 does not prevent a creditor of the company from becoming a member of the company as a result of the deed requiring the creditor to accept an offer of shares in the company.
Section 444E of the Corporations Act provides as follows:
444EProtection of company's property from persons bound by deed
(1)Until a deed of company arrangement terminates, this section applies to a person bound by the deed.
(2)The person cannot:
(a)make an application for an order to wind up the company; or
(b)proceed with such an application made before the deed became binding on the person.
(3)The person cannot:
(a)begin or proceed with a proceeding against the company or in relation to any of its property; or
(b)begin or proceed with enforcement process in relation to property of the company;
except:
(c)with the leave of the Court; and
(d)in accordance with such terms (if any) as the Court imposes.
(4)In subsection (3):
property of a company includes:
(a)any PPSA retention of title property of the company; and
(b)any other property used or occupied by, or in the possession of, the company.
Note: See sections 9 (definition of property ) and 51F (PPSA retention of title property).
The effect of s 444E(3) of the Corporations Act was that, from the date of the DOCA, the SC Proceeding could not proceed against the First Defendant except with the leave of the Supreme Court or other court as defined in s 58AA of the Corporations Act.

Relevant DOCA terms

Some of the terms of the DOCA were also crucial in both the SC Proceeding and are important to the determination of this proceeding. At this point, we make relevant findings in relation to the terms of, and effect of, the DOCA about which we are satisfied.
The DOCA relevantly provided that from the date it commenced:
1.The administrators continued to remain in control of the First Defendant's business, property and affairs;[17] and
2.The SC Proceeding could not be proceeded with against the First Defendant except with the administrators' written consent or with the leave of the Supreme Court.[18]
[17] Exhibit 2.21.
[18] Exhibit 2.21.

Continuation of the background to the alleged conduct

Returning then to the factual background, we are satisfied of and make the following additional findings of fact.
At no time before 7 August 2019 did:
(a)the administrators consent to the SC Proceeding continuing against the First Defendant.
(b)the Supreme Court grant leave for the SC Proceeding to continue against the First Defendant.
(c)the administrators authorise or consent to the Firm or the Practitioner continuing to act in the SC Proceeding on behalf of the First Defendant.
(d)the administrators give the Firm or the Practitioner any instructions with respect to the conduct of the SC Proceeding.
On 11 October 2017, the Practitioner informed the other parties to the SC Proceeding that the First Defendant had been placed into administration and had subsequently entered into a DOCA. He did so by sending an email in the following terms:[19]
Before the parties start considering the proposed orders can you note, and can we update the court record that, the First Defendant is subject to:
•The appointment of administrators (Neil Cribb and Greg Dudley or RSM); and
•A deed of company arrangement (and thus the administrators are not deed administrators).
This should be reflected in the court header of the action.
Thank you.
[19] Exhibit 2.10.
The DOCA was attached to a witness statement of Mr Ian Wallace (the Second Defendant) dated 21 March 2018, which was filed in the SC Proceeding on that same day.[20]
[20] Exhibit 2.21.
On 26 June 2019, the Practitioner filed an affidavit in the SC Proceeding which was said to be filed on behalf of the First and Second Defendants in support of an application to amend the name of the First Defendant in the action to 'Ironbridge Holdings Pty Ltd CAN 009 341 011 (Receivers and Managers Appointed) (Subject to a Deed of Company Arrangement)' to reflect the fact that the First Defendant was in administration and subject to a DOCA.[21]
[21] Exhibit 2.75; Exhibit 2.76; Exhibit 2.77 and Exhibit 2.78.
Mr Neil Cribb wrote to the solicitor for the Plaintiff on 19 July 2019 informing her, among other things, that the administrators first became aware of the SC Proceeding on 17 July 2019.[22]
[22] Exhibit 2.109.
At no time before 19 July 2019 did the Plaintiff seek the consent of the administrators to continue the SC Proceeding against the First Defendant. The Plaintiff sought that consent on 19 July 2019.[23] The administrators refused to give their consent.[24]
[23] Exhibit 2.108.
[24] Exhibit 2.109.
On 22 July 2019, the Practitioner swore an affidavit in support of his application to the Supreme Court for leave for the Firm to cease acting for the First Defendant in the SC Proceeding.[25]
[25] Exhibit 2.111.
The application was heard and granted on 7 August 2019.[26]

Relevant events in the SC Proceeding and Communications the subject of Grounds 2 – 6

[26] Exhibit 2.128, pages 96 – 113.

In order to resolve the allegations made against the Practitioner it is necessary to set out in considerable detail many of the steps which were taken in the SC Proceeding. It is also necessary to make findings of fact in relation to some communications which occurred between the parties, and between parties and the court about the SC Proceeding.
As to those matters, we are satisfied and make the following findings of fact.
On 13 September 2016, the Plaintiff issued a writ against the First to Fifth Defendants.[27]
[27] Exhibit 2.1.
On 7 October 2017, a combined defence was filed on behalf of all of the defendants by DLA Piper, who at that time, acted for them all.[28]
[28] Exhibit 2.2.
On 27 January 2017, the Firm filed a Notice of change of representation to act for the First, Second, Third and Fourth Defendants.[29]
[29] Exhibit 2.5.
On 6 February 2017, the Firm rendered a combined invoice to the First, Second, Third and Fourth Defendants.[30]
[30] Exhibit 7, pages 47 – 50.
On 2 March 2017, DLA Piper filed a Notice of change of representation so that it once again acted for the Third and Fourth Defendants in the proceeding.[31]
[31] Exhibit 2.6
On 10 March 2017, the Firm rendered an invoice to the First, Second, Third and Fourth Defendants.[32]
[32] Exhibit 7, pages 51 – 53.
On 18 April 2017, the Firm rendered an invoice to the First and Second Defendants.[33]
[33] Exhibit 7, pages 59 – 62.
On 17 July 2017, a Minute of Consent Orders dated 17 July 2017 (MOCO 1) in which the parties sought orders for a trial of a preliminary issue, among other things, was signed by the parties.[34] The Firm signed MOCO 1 as solicitors for the First and Second Defendants.
[34] Exhibit 2.9.
On 17 July 2017, Justice Banks-Smith made orders in terms of MOCO 1.[35]
[35] Exhibit 2.23.
On 10 October 2017, the Plaintiff's solicitor circulated as an attachment to an email to the parties, a proposed Minute of Consent Orders extending time for compliance with programming orders made earlier in the SC Proceeding and seeking orders permitting the filing of expert evidence.[36] The email and the proposed Minute of Consent Orders are addressed to the Practitioner, to the solicitor at DLA Piper who was acting for the Third and Fourth Defendants and to solicitors at Chalmers Legal Studio who were, by then, on the record as acting for the Fifth Defendant.
[36] Exhibit 4.3.
As we have found, at [69], on 11 October 2017 the Practitioner sent an email to the parties in which he informed them that an administrator has been appointed to the First Defendant and that the First Defendant has entered into the DOCA.
On 30 October 2017 at 2.50 pm, the Practitioner sent an email to the other parties' solicitors attaching a proposed Minute of Consent Orders asking 'Can the attached orders be agreed?'[37] The genesis of the email was an email received by the parties from the Associate to Justice Banks-Smith which was sent at 1.33 pm on 30 October 2017, in which the Associate referred to the hearing listed for the following day and asked the parties to indicate what was intended to be dealt with at the hearing and what orders the parties propose by way of a Memorandum of Consent Orders or a Minute of Proposed Orders.[38] There were no signing clauses on that proposed Minute of Consent Orders circulated by the Practitioner.
[37] Exhibit 4.4.
[38] Exhibit 4.4.
On 30 October 2017 at 3.07 pm, after receiving correspondence from the other parties regarding the proposed Minute of Consent Orders, the Practitioner sent them another version of the Minute of Consent Orders which had been amended to have regard to the other parties' positions. This version had signing clauses for the parties that identify that the Firm was to sign the Minute of Consent Orders for the Second Defendant. There is no provision for any firm to sign the Minute of Consent Orders on behalf of the First Defendant.[39]
[39] Exhibit 4.5.
The Minute of Consent Orders which was in fact signed and filed in the SC Proceeding was in slightly different terms to those which were set out in the draft version circulated at 3.07 pm. The signed version circulated by the Practitioner by email at 5.31 pm on 30 October 2017 (MOCO 2)[40] includes a signing clause which, by its terms, identifies that the Firm signed as solicitors for the First and Second Defendants.[41]
[40] Exhibit 4.6.
[41] Exhibit 2.13; and Exhibit 4.6,
On 31 October 2017, Justice Banks-Smith made orders in terms of the signed MOCO 2.[42] Order 12 was an order vacating the directions hearing and relisting it for a date to be fixed not before 2 February 2018.
[42] Exhibit 2.14.
On 3 February 2018, the parties agreed to the terms of a Minute of Consent Orders extending the time for the filing of witness statements and other trial documents (MOCO 3). The Firm signed MOCO 3 as solicitors for the First and Second Defendants.[43] A signed copy was sent by email to the Plaintiff's solicitor by the Practitioner.[44]
[43] Exhibit 4.7.
[44] Exhibit 4.7.
On 15 February 2018, orders were made by the Supreme Court in terms of MOCO 3.[45]
[45] Exhibit 2.27.
On Friday 9 March 2018, the Plaintiff's solicitor emailed the Practitioner and asked whether his clients intended to file any witness statements in the SC Proceeding.[46] They were due to have been filed on 8 March 2018.
[46] Exhibit 4.8.
The Practitioner replied by email six minutes later saying:[47]
I confirm that we have a statement from Mr Wallace that he will file by Monday next week.
I trust your client will indulge our client until then. (our underlining)
[47] Exhibit 4.10.
The promised witness statement was not filed on Monday, 12 March 2018 as had been anticipated. On 15 March 2018, the Plaintiff's solicitor wrote to the Practitioner inquiring as to when she could 'expect to receive his client's witness statement' (our underlining).[48]
[48] Exhibit 5.10.
The Practitioner responded by email a short time later[49] apologising and stating:
I apologise as I had to take on a trial at the last minute from Mon-Wed this week.
I am waiting for the client to approve the statement. Can we agree to Monday, 19.3.18? (our underlining).
[49] Exhibit 4.10.
On 20 March 2018 at 12.17 pm, the Plaintiff's solicitor emailed the defendants' solicitors in the flowing terms:[50]
We were served with the witness statements of the third and fourth defendants on 9 March 2018 and the witness statements of the fifth defendant on 16 March 2018.
We have been advised by Mr Robertson that the first and second defendants intend to file a witness statement in these proceedings. We have not yet been served with a copy of the same.
Pursuant to the current programming orders, our client is required to file its responsive statements by 23 March 2018. Our client will not be in a position to do so in the present circumstances.
Please advise whether your respective clients take objection to our client filing its responsive statement by the date that is two (2) weeks from the date that our office is served with the witness statement of the first and second defendants (our underlining).
[50] Exhibit 4.11.
On 20 March 2018 at 1.34 pm, the Practitioner replied by email saying:[51]
We are expecting our client to call in tomorrow to sign his statement.
There is no objection from our client to the proposal below (our underlining).
The reference to the 'the proposal below' in that email was self‑evidently a reference to the proposal in relation to the filing of the plaintiff's responsive witness statements.
[51] Exhibit 4.11.
On 21 March 2018, the Practitioner caused to be filed the witness statement of Mr Wallace.[52] The document is said to have been filed on behalf of the Second Defendant. In the court heading, the First Defendant is identified as 'Ironbridge Holdings Pty Ltd (ACN 009 341 011) (Receivers and Managers Appointed) (Subject to a Deed of Company Arrangement).
[52] Exhibit 2.21.

In his witness statement, Mr Wallace states that he is a director of the First Defendant and that the First Defendant is subject to a DOCA. The DOCA was exhibited to Mr Wallace's witness statement.
On 10 April 2018, the Firm issued an invoice to the Second Defendant only.[53]
[53] Exhibit 7.
On 24 April 2018, the Practitioner responded by email to an email from the plaintiff's solicitor stating:[54]
On the point of "there is currently no defence filed by the first and second defendant in these proceedings" – can you please note:
•The first defendant is subject to a DOCA and the court record ought be amended to reflect this;
•The second defendant has filed a defence jointly with defendants 1-4 (see attached) – when all parties were represented by the same lawyers; and
•The second defendant does not intend to file any other defence.
[54] Exhibit 2.26.
On 25 April 2018, the Practitioner caused to be signed by the Firm, a Memorandum of Consent Orders dated 20 April 2018 (MOCO 4).[55] The signing clause identifies that the Firm signed as solicitors for the First and Second Defendants.[56] Orders were made by Justice Derrick in accordance with MOCO 4.[57]
[55] Exhibit 4.13.
[56] Exhibit 4.13.
[57] The orders were not exhibited in the proceeding, although the Applicant's chronology indicates that they were made on 1 May 2018. Nothing turns on that issue.
On 9 May 2018, the Practitioner filed the Second Defendant's response to the Plaintiff's objections to witness statement filed on behalf of the Second Defendant.[58]
[58] Exhibit 2.28.
On 9 May 2018, the Practitioner filed the Second Defendant's objections to admissibility of the evidence contained in four witness statements.[59] In each case the Second Defendant adopted the objections taken by the Third and Fourth Defendants.
[59] Exhibit 2.29; Exhibit 2.30; Exhibit 2.31; and Exhibit 2.32.
No such document was filed on behalf of the First Defendant.
On 14 May 2018, the Practitioner filed the Second Defendant's Notice of proposed documentary tender.[60] The signature clause refers only to the Second Defendant.
[60] Exhibit 2.33.
No such document was filed on behalf of the First Defendant.
On 31 May 2018, the parties filed a Memorandum of Consent Orders dated 29 May 2018 (MOCO 5).[61] The signature clause identifies that MOCO 5 was signed by the Firm as solicitors for the First and Second Defendants.
[61] Exhibit 4.15.
On 1 June 2018, the court made orders in terms of MOCO 5.[62]
[62] Exhibit 2.39.
On 13 June 2018, the Firm rendered an invoice to the Second Defendant.[63]
[63] Exhibit 7, para 34 and pages 109 – 111.
On 25 June 2018, the Practitioner sent an email to the other parties' solicitors in which he referred to his client in the singular stating:[64]
We confirm our client would also like orders to be included to deal with the parties' access to the DOH documents.
Can this be included with the minute of orders?
[64] Exhibit 4.16.
On 26 June 2018, in anticipation of a case management hearing which had been listed for the following day, the parties agreed and signed a Minute of Consent Orders dated 25 June 2018 (MOCO 6).[65] MOCO 6 is signed for the Firm as solicitors for the First and Second Defendants. The email by which the signed MOCO 6 was returned to the Plaintiff's solicitor for filing was sent by the Practitioner.[66] MOCO 6 had been drafted and circulated for signing by the Plaintiff's solicitors.[67]
[65] Exhibit 4.17.
[66] Exhibit 4.17.
[67] Exhibit 4.17.
On 26 June 2018, Justice Archer made orders in terms of MOCO 6 and the case management hearing was vacated.[68]
[68] Exhibit 2.41.
On 6 July 2018, the Plaintiff's solicitor sent an email to the other parties in which she circulated the list of documents the Plaintiff intended to tender at trial, stating that she had received such lists on behalf of the Second Defendant and the Third and Fourth Defendants and asking when the Fifth Defendant's list would be provided.[69] No mention was made of the First Defendant in the letter.
[69] Exhibit 4.18.
On 16 July 2018, the parties agreed and signed another Minute of Consent Orders vacating a directions hearing scheduled for 18 July 2018 and relisting it for 22 August 2018 (MOCO 7).[70] MOCO 7 is dated 13 July 2018. It is said to be signed by the Firm on behalf of the First and Second Defendants. The email by which the copy of MOCO 7 signed by the Firm was sent to the other parties was sent by the Practitioner on 16 July 2018.[71]
[70] Exhibit 4.19.
[71] Exhibit 4.19.
On 7 August 2018, another Minute of Consent Orders was agreed by the parties (MOCO 8).[72] MOCO 8 dealt with the issue of documents which had been subpoenaed from the Housing Authority. MOCO 8 was signed by the Firm as solicitors for the First and Second Defendants. The Practitioner emailed the Minute of Consent Orders to the other parties.[73]
[72] Exhibit 4.20.
[73] Exhibit 4.20.
On 15 August 2018, Justice Archer's Associate sent an email to the solicitors for the parties in which she made an inquiry of the parties about a possible amendment to MOCO 8. The orders were set out with the proposed amendments identified in bold type. The Associate asked whether the proposed amended orders reflected what the parties had intended in MOCO 8.[74]
[74] Exhibit 4.21.
On 20 August 2018, the Practitioner responded to the Associate's email advising her that 'the Second Defendant confirms that the orders are as intended in the bold font'.[75]
[75] Exhibit 4.21.
On 20 August 2018 at 4.23 pm, the Associate to Justice Archer emailed the Practitioner informing him that her Honour would make orders in terms of MOCO 8 (as amended), asking whether the parties wished to have the (then) upcoming directions hearing vacated and informing them that the Plaintiff's solicitor had confirmed that she had no objection to the hearing being vacated.[76]
[76] Exhibit 4.22.
On 21 August 2018, the Practitioner responded to the Associate's email stating that the Second Defendant would like the directions hearing vacated.[77] No mention was made of the First Defendant.
[77] Exhibit 4.23.
On 20 August 2018, Justice Archer made orders in terms of the amended MOCO 8.[78]
[78] The orders were not exhibited in the proceeding. However, Exhibit 2.46 is an email from Justice Archer's Associate to the parties confirming that her Honour would make orders in terms of MOCO 8.
On 24 August 2018, the Practitioner wrote to the solicitors for the other parties and the solicitor for the Housing Authority informing them that the Firm was instructed that the Second Defendant withdraws its objection to the Housing Authority's claim for privilege in relation to the subpoenaed documents.[79]
[79] Exhibit 4.24.
On 24 August 2018, the Firm signed a Minute of Consent Orders as solicitors for the First and Second Defendants seeking orders vacating previously made orders concerning the hearing of the Housing Authority's objections to subpoenaed documents (MOCO 9).[80] The email by which MOCO 9 was circulated to the other parties' solicitors was sent by the Practitioner.[81]
[80] Exhibit 4.25.
[81] Exhibit 4.25.
On 4 September 2018, the Practitioner signed yet another Minute of Consent Orders (MOCO 10) which was said to be signed by the Firm as solicitors for the First and Second Defendants.[82] The Practitioner sent the email circulating it for signing by the other parties.[83]
[82] Exhibit 4.26.
[83] Exhibit 4.26.
On 17 September 2018, the Practitioner sent an email to the other parties' solicitors in which he refers to his client in the singular stating, among other things:
We confirm that our client agrees that the parties should be seeking trial dates.
On 18 September 2018, a Minute of Consent Orders seeking entry for trial (MOCO 11) was signed by the Practitioner on behalf of the Firm as solicitors for the First and Second Defendants.[84] The Practitioner sent a copy of MOCO 11 signed by the Firm to the other parties by email on that date.[85]
[84] Exhibit 4.28.
[85] Exhibit 4.28.
On 18 September 2018, Justice Archer made orders in terms of MOCO 11.[86]
[86] Exhibit 2.55.
On 5 October 2018, the Practitioner sent an email to Mr Abbott, of counsel, informing him that the Firm would like to brief him on the matter and asking whether he would have any conflict in acting for the Second Defendant.[87] The relevant parts of that email are as follows:
Can you please check to see if you have any conflict to act in this as counsel for the Second Defendant, Ian Wallace. …
It is a claim nobody expected to go to trial but we are now being asked to have trial counsel confer about the length of the trial and other matters.
…
The First Defendant is subject to a DOCA and taking no part.
… .
[87] Exhibit 4.29.
On 16 October 2018, the Practitioner signed a Minute of Consent Orders where the signing clause refers to the Firm as solicitors for the First and Second Defendants (MOCO 12).[88] MOCO 12 sought orders vacating the directions hearing which was listed for 17 October 2018 and extending the time for entry for trial.
[88] Exhibit 2.57.
On 17 October 2018, Justice Archer made orders in terms of MOCO 12.[89]
[89] Exhibit 2.60.
On 1 November 2018, the Associate to Justice Archer emailed the parties' solicitors regarding the relisting of a directions hearing.[90]
[90] Exhibit 4.30.
In response to that email, the Practitioner sent an email to the Associate, which was copied to the other parties' solicitors, in which he advised the Associate that relisting the directions hearing on 14 November 2018 was acceptable to the Second Defendant.[91] No mention was made of the First Defendant.
[91] Exhibit 4.30.
On 12 November 2018, the Practitioner sent a brief to counsel.[92] In that brief he said, relevantly:
We act for the (sic) Mr Ian Wallace in the above action.
Ironbridge, (Ian's company and) the seller of the land in the transactions, is subject to a DOCA and taking no part in the action.
[92] Exhibit 7, pages 124 – 125.
On 27 November 2018, the Associate to Justice Archer advised the parties that the trial of the preliminary issue was listed for 14 – 27 August 2019.[93]
[93] Exhibit 2.70.
On 6 December 2018, the Firm sent an invoice to the Second Defendant.[94] No invoice was sent to the First Defendant.
[94] Exhibit 7, pages 112 – 115.
On 15 January 2019, a Minute of Consent Orders dated 7 January 2019 (MOCO 13) for among other things, an extension of time for entry for trial was signed by the Practitioner identifying that the Firm acted as solicitors for the First and Second Defendants.[95]
[95] Exhibit 2.72.
On 3 April 2019, the Practitioner circulated, by email to the other parties' solicitors,[96] the Second Defendant's Supplementary Informal List of Documents in response to a request for specific document.[97]
[96] Exhibit 4.31.
[97] Exhibit 4.31.
On 26 June 2019, the Practitioner swore an affidavit in support of the amendment to the name of the First Defendant under O 21 r 5 of the Rules of the Supreme Court (RSC) which was filed on that same date.[98] In the affidavit, the Practitioner deposed that he had the day‑to‑day conduct of the matter, that receivers and managers had been appointed to the First Respondent on 7 April 2017, that on about 21 July 2017 Ironbridge had appointed administrators and that, on 15 September 2017, Ironbridge had entered into a DOCA and still remained subject to that DOCA. In paragraph eight of his affidavit the Practitioner said that the affidavit was sworn in support of the application to change the name of the First Defendant to 'Ironbridge Holdings Pty Ltd ACN 009 341 001 (Receivers and Managers Appointed) (Subject to a Deed of Company Arrangement)' under RSC O 21 r 5.
[98] Exhibit 2.75.
On 26 June 2019, the Practitioner sent a copy of his affidavit to Justice Archer's Associate and to the solicitors for the other parties.[99] In that email he stated:
Can we attend to a housekeeping matter of the correct name details of the First Defendant.
It is in receivership and administration and the court record should reflect this.
Please see the attached affidavit that has been lodged.
Can you amend the details of the First Defendant?
[99] Exhibit 2.76 and Exhibit 2.77.
On 28 June 2019, the Associate responded to the Practitioner's email advising that Justice Archer had requested that he file a Minute of Consent Orders reflecting the change in the First Respondent's position.[100]
[100] Exhibit 2.77.
On 28 June 2019, the Practitioner prepared and filed a Minute of Consent Orders to change the name of the First Defendant (MOCO 14) as per Justice Archer's request.[101] It was expressed to be filed on behalf of the First and Second Defendants. The copies of MOCO 14 which are exhibited in the proceedings are not signed by any parties. Nevertheless, the agreed chronology filed on 23 June 2023 indicates that MOCO 14 was filed. We are prepared to proceed on the basis that MOCO 14 was signed by the parties.
[101] Exhibit 2.78 and Exhibit 4.32.
In any event, on 28 June 2019, Justice Archer made orders changing the name of the First Defendant in terms sought in MOCO 14.[102]
[102] Exhibit 2.79.
On 1 July 2019, the Associate emailed the extracted orders to the parties' solicitors and advised them that Justice Archer was expecting their (by then) overdue Agreed List of Issues and a minute of proposed orders in preparation for a directions hearing which was listed for 3 July 2019.[103]
[103] Exhibit 4.33.
On 2 July 2019, the Associate sent an email to the parties' solicitors.[104] In that email she informed them that Justice Archer would like the agreed communication, which the parties had earlier foreshadowed being sent to the court, to address the following matters:
(a)why the First and Second Defendants had not been involved in producing an Agreed List of Issues;
(b)why the Agreed List of Issues had not been filed; and
(c)when the Papers for the Judge would be filed.
[104] Exhibit 4.34.
Later on 2 July 2019, the Plaintiff's solicitor sent an email to the solicitors for the defendants[105] seeking approval to respond to the Associate informing the court:
1.That the First and Second Defendants had been involved in producing the Agreed List of Issues; and
2.That she had been informed by the solicitor for the First and Second Defendants that their clients adopt the position of the Third and Fourth Defendants.
[105] Exhibit 4.34.
On 2 July 2019, the Practitioner responded to the Plaintiff's solicitor's email stating '[t]his is OK with the 1^st + 2^nd Defendants'.[106]
[106] Exhibit 4.34.
On 3 July 2019, a directions hearing was held before Justice Archer. The transcript of the directions hearing is an exhibit in the proceeding.[107] The Practitioner announced his appearance as follows:[108]
May it please the court, your Honour. I appear for Ironbridge and for Mr Wallace.
[107] Exhibit 2.81, pages 1 – 28.
[108] Exhibit 2.81, page 2.
On 6 July 2019, the Practitioner sent an email to the solicitors for the other parties confirming that the First and Second Defendants were adopting the List of Issues prepared on behalf of the Third and Fourth Defendants.[109]
[109] Exhibit 2.82.
On 8 July 2019, the Practitioner circulated a minute of amended defence which was expressed to be a document prepared on behalf of the First and Second Defendants.[110] This document, although circulated to the parties, was never filed in the SC Proceeding.
[110] Exhibit 2.84.
On 9 July 2019, the Firm rendered an invoice to the Second Defendant.[111] No invoice was issued to the First Defendant.
[111] Exhibit 7, pages 116 – 118.
On Thursday 11 July 2019, the Practitioner, Mr Penglis SC, and Mr Hancy (who was counsel for the Third and Fourth Defendants) attended a conference regarding the pleadings and the preparation of the list of legal and factual matters in issue.
Following that hearing, on 11 July 2019, Mr Penglis SC sent an email to the Practitioner, Mr Hancy and Mr Ferrett.[112] In that email Mr Penglis SC set out the text of a draft letter which he proposed to send to the Associate by the Plaintiff's solicitors in which the Practitioner is referred to as the solicitor for the First and Second Defendants. It said that the parties would provide the Court with their proposed amended pleadings the next day, that no major disputes were anticipated and that the parties' view was that the strategic conference scheduled for the following Monday morning should still proceed.
[112] Exhibit 2.85.
On 12 July 2019, the Associate the sent an email to the parties' solicitors asking for a list of appearances in advance of the strategic conference scheduled for 15 July 2019.[113]
[113] Exhibit 4.35.
In response to the Associate's email, the Plaintiff's solicitor asked the parties to notify her of appearances so that she could compile one complete list and provide it to the Associate.[114]
[114] Exhibit 4.35.
In response to the Plaintiff's solicitor's email, the Practitioner sent an email stating:[115]
I will appear for the First and Second Defendants.
[115] Exhibit 4.35.
The Plaintiff's solicitor informed the Associate by email of various matters including that the Practitioner would appear for the First and Second Defendants at the strategic conference on 15 July 2019.[116]
[116] Exhibit 2.88.
The strategic conference was in fact held before Justice Archer on 16 July 2019. The transcript of that hearing was tendered in the proceeding.[117] At the strategic conference the Practitioner announced that he appeared on behalf of the First and Second Defendants.[118]
[117] Exhibit 2.91, pages 29 – 46.
[118] Exhibit 2.91, page 31.
In the course of that strategic conference, the Practitioner informed the Court that Mr Wallace intended to retain the Firm only up until the point in time when all trial directions are complied with, following which he intended to appear in person. The Practitioner explained:[119]
It's a question of costs, your Honour. It's a long trial which Mr Wallace is unable to fund.
[119] Exhibit 2.91, page 39.
Following that comment, Mr Penglis SC made the following observation which, in our view, makes it abundantly clear that he did not understand that the position was that the Plaintiff's action could not, at that point in time, proceed against the First Defendant. He said:[120]
Your Honour, there's a further issue about that if I may interrupt. And it's all very well for Mr Wallace to represent himself, but First Defendant is a corporation ‑ ‑ ‑
…
‑ ‑ ‑ and he can't represent without leave of the court a corporation. In the circumstances I will be opposing for reasons I can go into. It would be inappropriate for him to be representing the corporation. So there's another issue there.
[120] Exhibit 2.91, pages 39 – 40.
In reply, the Practitioner made the following submission:[121]
I will just talk to that. The company is actually in receivership and subject to a DOCA. So the company has got a completed deed of company arrangement which the control has been returned to Mr Wallace, but the claim in this matter is effectively captured by the deed of company arrangement. So it's difficult to see how this – is prejudice because there's very little that that company is doing.
It's not trading. It's just subject to a DOCA which is effectively dealing with an interest in some property in Victoria, the substance of which Mr Wallace is looking to deal with through the other trial proceedings in Victoria.
[121] Exhibit 2.91, page 40.
Justice Archer responded to that submission by asking the Practitioner whether he resisted the proposition that Mr Wallace required leave to represent the First Defendant. The Practitioner replied:[122]
I don't resist that proposition and there would have to be an application filed.
[122] Exhibit 2.91, page 40.
Justice Archer then made an order requiring the Second Defendant to file its application to act for the First Defendant by noon on 22 July 2019, requiring the Second Defendant and the Plaintiff to file submissions in relation to the application and requiring unavailable dates for a special appointment to deal with the matter to be provided by 4 pm on 22 July 2019.[123]
[123] Exhibit 2.91, page 40.

The Practitioner asked whether, if the Plaintiff was not resisting the application, her Honour would still require submissions. Justice Archer responded that she would still need some form of written submissions and references to relevant authorities so as to understand the basis for the application.[124]
[124] Exhibit 2.91, page 41.
Her Honour then asked the Practitioner whether there was anything else he needed to raise and he responded as follows:[125]
No. That's everything from the first and second.
[125] Exhibit 2.91, page 42.
On 16 July 2019, the orders made by Justice Archer at the strategic conference were extracted.[126] Orders 15 and 16 were the orders in relation to the Second Defendant's application to act for the First Defendant.
[126] Exhibit 2.92.
On 17 July 2019 at 9.14 am, the Practitioner sent an email to the Plaintiff's solicitor and to Mr Penglis SC attaching a Minute of Consent Orders and stating:[127]
Regarding the application for W+H to get off the record for the First Defendant (Ironbridge), we do not actually need to apply because the action is stayed by reason of s 444E of the Corporations Act.
Nobody, to my knowledge has applied for leave to continue the action against Ironbridge and thus by continuing the action against Ironbridge without leave – it is an abuse of process.
In the event your client applied for leave to continue the action against Ironbridge it would be unlikely to get the leave based on the authorities.
I attach my affidavit sworn 26.7.19 [sic].[128] As you can see in the DOCA, the definition of "Creditor" is wide and your client has not been excluded from the DOCA. In the result your client's claim against Ironbridge can only ever result in being admitted to proof to participate in the DOCA when the time for that comes. That time has not come and the DOCA has some time to run.
As you know Ian Wallace can choose to represent himself at any stage of proceedings. He does not need the leave of the trial judge. He can file a notice to this effect whenever he chooses to do so.
This all makes Archer J's orders 16 and 17 [sic] of yesterday redundant. Can you consider these issues and confirm you agree?
If you do, then can you have your instructor sign the minute and I will circulate it and confirm we have agreed the orders and that we will raise it with the Associate before the orders from yesterday are extracted.
[127] Exhibit 2.95.
[128] The Practitioner's affidavit was sworn on 26 June 2019.
The Minute to which the Practitioner referred were orders vacating orders 15 and 16 of the orders made on 16 July 2019. When the Practitioner received the extracted orders which were sent by the Associate at 9.54 am on 17 July 2019, the Practitioner amended the Minute of Consent Orders seeking to vacate the orders to correctly refer to orders 15 and 16.[129]
[129] Exhibit 4.38.
On 17 July 2019 at 12.12 pm, by email sent to the Plaintiff's solicitors and copied to the other parties, [130] the solicitors for the Fifth Defendant sent a letter asking the Plaintiff to confirm whether the administrators had ever consented to the continuation of the action against the First Defendant and stating that, if not, leave of the court is required pursuant to s 440D of the Corporations Act. The Fifth Defendant's solicitors foreshadowed the possibility of raising the issue with the court.[131]
[130] Exhibit 4.39.
[131] Exhibit 4.39.
At 12.28 pm on 17 July 2019, the Practitioner sent an email to the solicitors for the other parties stating:[132]
I believe the section of the Corporations Act is 444E as Ironbridge is subject to a DOCA.
[132] Exhibit 4.40.
On 17 July 2019 by email sent at 6.01pm, the Practitioner wrote to the administrators in the following terms:[133]
Gents
As I understand it you have known about the action.
The action had been progressing at a slow pace until it ramped up this year when trial dates were set.
I have found documents on a cursory review of our DMS where we have told Satterley's lawyers about the DOCA and the Deed. Two such examples are attached.
We were on the record before the DOCA, during the process of the DOCA and since the DOCA. Our instructions from Ian on and from administration and the DOCA were from Ian in his personal capacity.
It is not apparent why Satterley would want to continue this action against Ironbridge/the Deed administrators - when it has known that Ironbridge was in administration and that it was subject to a DOCA.
I will try to confer with Stephen before he gets more hot under the collar about this matter and I will report back to you.
[133] Exhibit 4.46.
On 18 July 2019, the Practitioner filed an Amended Defence of the Second Respondent[134] and served it on the other parties by email sent at 12.24 pm.[135]
[134] Exhibit 2.84.
[135] Exhibit 2.104.
On 18 July 2019, Mr Penglis SC wrote a letter to the Practitioner in the following terms:[136]
[136] Exhibit 2.105.
John
Thank you for your email.
I apologise for not replying sooner, but I have been in conference all morning.
I am sorry that you feel that I am being combative. I am not. Rather, I am trying to understand exactly what has happened and don't want any misunderstandings down the track. Also, as I've said, given the nature of the issue, it is appropriate that our communications be in writing. I have also said that, once I know what the facts are, before making any application, I will speak to you.
The position is that, in your email dated 11 October 2017, you advised of the appointment of Administrators and of the Deed of Company Arrangement. It did so requesting "can we update the Court record" and 'header of the action" to reflect that fact. You did not advise that you no longer represented the first defendant or that it would be necessary for us to obtain leave of the Court to proceed on the basis that the Administrators did not consent to the Action proceeding.
Thereafter, not only have you remained on the record for the First Defendant, you have taken steps in the action on behalf of the first defendant. Moreover, at no time has any objection been raised to the Action proceeding against the first defendant (that is, not until this week).
In this regard it is not correct for you to suggest that you have not taken any step in your capacity as solicitor for the first defendant since the appointment of Administrators and subsequent to the DOCA. On many occasions (see your emails to, amongst others, Bushra Tariq dated 30 October 2017, 3 February 2018, 25 April 2018, 7 August 2018, 16 October 2018, 15 January 2019) you have signed consent orders as solicitors for both defendants. You have recently appeared before Archer J (twice) on behalf of both defendants. Moreover, even as recently as 2, 6 and 12 July you have sent emails expressly on behalf of the First and Second Defendants.
What I want to know is whether you are now telling us that, notwithstanding all of the above, you have not held instructions from the Administrators to act for the First Defendant and that, moreover, the Administrators have not been kept aware that this Action has continued to proceed against, inter alia, the first defendant?
I also want to know why, in all the circumstances, you have raised the section 444D/444E point now (as opposed to any time previously in the last 22 months)?
I need to know the facts so that I can advise my client what to do.
May I please have your urgent reply.
…
On the same day, the Practitioner sent an email in reply.[137] This is the email which is the subject of the allegation in Ground 2. That email said as follows:
[137] Exhibit 2.106.
Thank [sic] you for your email.
I refer to your paragraph:
•4 and respond as follows:
•I agree I did not give your instructors or the other parties advice on the effect of Administration and the DOCA.
•I do not accept it is my place to provide advice to other lawyers. It is presumed those lawyers know the law.
•If the inference is I have caused other lawyers to fall into error by my silence, then I do not accept that inference is open.
•I assumed it was common cause that the action against the First Defendant was at an end by the operation of s 444D of the Corporations Act.
•5 as follows:
•Up until the emails this month, each of the emails you have referred to dated 30 October 2017, 3 February 2018, 25 April 2018, 7 August 2018, 16 October 2018 and 15 January 2018 – all relate to consent orders prepared by others. I accept that this should have made clear that we acted only for the second Defendant and that the emails and appearances this month were incorrect.
•When you say I have remained on the record for the first defendant I have been operating on the basis that the first defendant was playing no further part in the action and that this was accepted because of notice of external administration and the DOCA. I had understood this trite legal position was known and accepted by the parties however I did not think to raise it with anyone because of the assumption that the target for your client's claim was Mr Wallace and not the pre or post DOCA Ironbridge.
•The position did come to a head this week when I raised getting off the record for both defendants. I did not raise s 444D or s 444E with the court on 16.7.19, however I raised it with you the next day when I was considering the application for Mr Wallace to represent Ironbridge - which is unnecessary because of the effect of s 444D.
•Your last sentence of this paragraph asserts that the onus is on me to advise you of the need to obtain the courts leave to proceed against the deed administrators (not the cleansed or new post DOCA version of Ironbridge). Is this your contention? Again I had thought your target was Mr Wallace and not trying to look behind a DOCA to get at what assets and undertaking of Ironbridge that is contained in that DOCA.
•6 as follows:
•As noted above the emails between 30.10.17 – 15.1.19 contain consent orders prepared by others and I accept a lack of attention to the detail therein.
•I will correct the record with the court about the two July 2019 appearances by an email to the Associate at the conclusion of our conferral. I also apologise for the error of referring to the first defendant in the July 2019 emails.
•7 as follows:
•I do not have instructions from the DOCA administrators to act for the First Defendant.
•I never had instructions from the DOCA administrators to act for the First Defendant.
•I do not act for the DOCA Administrators.
•I have not kept the DOCA Administrators aware of this action continuing against the First Defendant as I did not believe it was continuing against them. That is why I have filed no court documents for the First Defendant.
•When I briefed Mr Abbott of counsel I told him that Ironbridge was taking no part in the action.
•As an aside the DOCA administrators have no concern about the post DOCA Ironbridge as it has been returned to the directors to run the company that remain under the control of its directors and receivers KordaMentha. If you combine this with s 444D of the Act then your client cannot maintain the claim against Ironbridge. Your client's claim against the post DOCA Ironbridge should be dismissed.
•8 as follows:
•As noted above I was giving notice of coming off the record for both defendants.
•A review of s 444E and s 444D confirmed there was no need to come off the record for Ironbridge as the claim against it is misconceived and should be dismissed.
•For the last 22 months I assumed your client's target was Mr Wallace and the other defendants.
•I reiterate what can your client possibly hope to achieve by joining the DOCA Administrators to this action and proceeding against them?
•I press the questions to you that are in my email of 10.04 today.
If your client is now contemplating an action to join the DOCA administrators you will need to confer with them. I again request we confer as we need to update the position to the court including that we regard orders 15 and 16 of Archer J's orders of 16.7.19 to be redundant and that we will not be making an application in the terms proposed or at all.
I am content to provide all emails in our chain and all of the attachments that we both rely on for the Court to review.
regards.
On 19 July 2019, the Plaintiff sought the consent of the administrators to continue with the SC Proceeding against the First Defendant. That request was refused.[138]
[138] Exhibit 1, pages 476 – 479.
On 22 July 2019, the Practitioner filed an application for an order that the Firm cease to act for the First Defendant and an affidavit sworn by the Practitioner in support of that application.
The substantive part of that affidavit which was sworn and filed by the Practitioner said as follows: [139]
[139] Exhibit 2.111.
(1)I am a director of Williams + Hughes (W+H), the Solicitors for the First and Second Defendants and have the day to day conduct of this mater.
(2)Save where otherwise appears, the contents of this affidavit are true to my own knowledge. Where a fact is true to the best of my own information and belief, that fact is stated, and the source of the information and belief is identified in the text.
(3)I swear this affidavit in support of the Chamber Summons for an order that W+H cease to act as solicitors for the First Defendant (Ironbridge).
(4)I confirm that Ironbridge:
4.1appointed Messers Neil Cribb and Greg Dudley of RSM Partners as Ironbridge's administrators on 21 July 2017;
4.2signed a deed of company arrangement (DOCA) appointing Messrs Cribb and Dudley as the DOCA administrators on 15 September 2017. Attached and marked JAR1 is a copy of the DOCA and an ASIC Search of Ironbridge.
(5)From the date of at least 21 July 2017, I ceased taking instructions from anyone at Ironbridge. I gave written notice of the DOCA to the Plaintiff's solicitors by email dated 11 October 2017.
Attached and marked JAR2 is a copy of my email dated 11 October 2017.
(6)I confirm I have had no contact with and taken no instructions from Messrs Cribb and Dudley in their capacity as administrators of Ironbridge. The reasons for that include:
6.1I regarded W+H's retainer with Ironbridge to be at an end as at 21 July 2017; and
6.2Ironbridge was under a statutory stay, under s 444E(3) of the Corporations Act 2001 (Cth), by which it was impermissible that the Plaintiff could continue this action against Ironbridge without the leave of the Court. No such application for leave under s 444E(3) of the Corporations Act was ever filed by the Plaintiff.
(7)In the result, W+H's role as solicitors on the record for Ironbridge is redundant since at least 21 July 2017 and I understand from Messrs Cribb and Dudley in the capacity as DOCA administrators – are unfunded.
Attached and marked JAR3 is a letter I was copied into from Mr Cribb dated 19 July 2017 to the Plaintiff's solicitors in which the DOCA administrators set out their position in response to a letter from the Plaintiff's solicitors that I have not seen.
(8)I have searched the eCourts portal today to confirm W+H have not already been removed from the record for Ironbridge.
(9)I swear this affidavit in support of the orders in W+H's chamber summons of today's date to be removed as solicitors on the record from Ironbridge.
On 22 July 2019, the Plaintiff brought an application for leave to proceed against the First Defendant and for the costs of the application to be paid by the Firm.[140]
[140] Exhibit 4.58.
On 22 July 2019, the Practitioner also wrote to the Associate to Justice Archer.[141] The substantive part of that letter stated:
[141] Exhibit 2.112.
I refer to what I believe are my two and only appearances in Court for this action on 3 July 2019 and 16 July 2019.
It has come to my attention that I incorrectly announced my appearances as counsel for the First Defendant (Ironbridge) and the Second Defendant (Mr Wallace). This was an error because I had been operating on the assumption that Williams + Hughes' (W+H) retainer for Ironbridge ended, on or about 21 July 2017, when Ironbridge appointed Messrs Neil Crabb and Greg Dudley of RSM Australia Partners as Ironbridge's administrators. I confirm I have had no contact with Messrs Cribb and Dudley regarding this action. The further reasons for my assumption that W+H's retainer with Ironbridge was at an end include that:
1.Ironbridge then signed a deed of company arrangement on 15 September 2017; and
2.Ironbridge has been (and remains) under a statutory stay of this action under s 444E(3) of the Corporations Act 2001 (Cth) – and Plaintiff did not apply for leave to proceed against Ironbridge after being given notice of the appointment of the administrators and the DOCA by me on 11 October 2017.
I respectfully ask that the Court correct the record of my appearances on 3 July 2019 and 16 July 2019 to reflect that I only appeared for Mr Wallace. I apologise to the Court for the error of incorrectly announcing my appearances on these two recent dates in error.
It has been brought to my attention that I have signed consent orders dated 30 October 2017, 3 February 2018, 25 April 2018, 7 August 2018, 16 October 2018 and 15 January 2019 – all said to be on behalf of the First Defendant and Second Defendant. These consent orders were prepared by other parties and only some of them have been extracted as they were all dealt with administratively. I apologise to the Court for the lack of attention to detail of signing these consent orders without deleting reference to the 'First Defendant'.
I confirm that W+H have filed an application to come off the record for Ironbridge under RSC Order 8 rule 7 and that the application is awaiting a listing date before Her Honour, Justice Archer.
Also on 22 July 2019, the Practitioner wrote to Mr Penglis SC in the following terms:[142]
[142] Exhibit 2.113.
Dear Steven
…
I refer to your email dated 18 July 2019.
I confirm I have discussed the ethical aspects of this matter with Senior Counsel.
I refer to the letter from Neil Cribb of RSM Australia Partners dated 19 July 2019, a joint and several administrator of the deed of company arrangement of the First Defendant (Ironbridge). As you can see from Mr Cribb's letter, I have had no involvement with the DOCA administrators – since and after they were appointed DOCA administrators of Ironbridge. They were also unaware of this action and have played no part in it whatsoever.
As a matter of Law (as I understood it) my firm's (W+H) retainer with Ironbridge ended when DOCA administrators were appointed to Ironbridge on 15 September 2017 – which was when different parties took control of Ironbridge and did not instruct me to act. Your instructors were given notice of the appointment of the DOCA administrators on 11 October 2017.
The requirement of your client to apply for leave to proceed against Ironbridge, under s 444E(3) of the Corporations Act, is not something the DOCA administrators could ever consent to, or waive, without leave of the Court. I refer you to paragraph [5.3A.0515] of the Australian Corporation Law Principles & Practice where it states, relevantly:
A deed of company arrangement binds the company, its officers and members and the deed's administrator: s 444G. None of them may make or prosecute an application for the winding up of the company, nor may they take or proceed with any action against the company or its property otherwise than with the court's leave and on such conditions as it may impose: s 444E. (emphasis added).
The reason for this is obvious. Only the court can weigh the impact on creditors and condition the leave – not the administrators nor anyone acting for them.
I accept I have inadvertently signed programming orders prepared by your instructors on 20 October 2017, 3 February 2018, 25 April 2018, 7 August 2018, 16 October 2018 and 15 January 2019. I apologise for the lack of attention to detail in signing those consent orders without scoring through reference to the First Defendant. As you know each substantive court document W+H has filed in this action, post appointment of the DOCA administrators (e.g. witness statements and pleadings), has been filed only on behalf of the Second Defendant (Mr Wallace). I confirm I have only ever taken and acted for and on the instructions of Mr Wallace after the appointment of the DOCA administrators.
I also acknowledge that – at the two and only court appearances I have ever made in this action (that both occurred this month) – I incorrectly announced my appearance on behalf of the First and Second Defendant. I will correct this oversight with the Court immediately and request that the Court record be updated to reflect my two appearances were only on behalf of Mr Wallace.
W+H have not filed an application to come off the record for Ironbridge (Application). The Application refers to W+H's retainer ending upon the appointment of the DOCA administrators and in the supporting affidavit I depose to:
•having had no contact with the DOCA administrators;
•taking no instructions from the DOCA administrators after their appointment; and
•not disclosing (or updating) details of this action to the DOCA administrators.
If you maintain I have acted for the DOCA administrators without proper authority, after I file the Application, then I will file a supplementary affidavit attaching this letter and your response and raise your assertion with the Court – including my apology for signing consent orders with a lack of attention to detail and incorrect announcement of the two and only appearances I have ever made in this action (both of which occurred this month).
I remain of the view that W+H remaining on the record for Ironbridge, me signing consent orders incorrectly or the erroneous announcements (this month) of my two and only appearances in this action – will have no impact on the principles of law that are relevant to your client's application for leave to proceed against Ironbridge under s 444E(3) of the Act.
Yours sincerely.

It therefore follows that we also find that suggestion in the email that the announcing of his appearances and the signing of the MOCOs was the result of a lack of attention to detail was false and misleading because his statement regarding his knowledge was untrue.
In the face of the finding that he did not appreciate that the SC Proceeding was unable to proceed against the First Defendant until 16 or 17 July 2019, we cannot accept the Practitioner's denials of the suggestion that his intention in writing the email in the terms he did, was to deflect criticism that he had intended to mislead the Plaintiff. Rather we find that his intention in writing the email was precisely that.
We have found the allegation in Ground 2 proven.

Ground 3 – letter to Associate of 22 July 2019

We have set out the letter which the Practitioner wrote to the Associate on 22 July 2019 at [181].
We have already found that, at the time the Practitioner announced his appearances, he did not assume that his retainer for Ironbridge had come to an end. We therefore find that his statement to that effect in the letter to the Associate of 22 July 2019 was false and misleading.
We have found that the Practitioner did not understand that a statutory stay, brought about by operation of s 444E of the Corporations Act, had come into effect upon it entering into administration. It follows, therefore, that we find that the letter of 22 July 2019 was false and misleading in so far as it indicated that at the time he announced his appearances on 3 July 2019 and 16 July 2019 he understood that s 444E of the Corporations Act had brought his retainer to an end.
Further, we find that in so far as the Practitioner's letter represented that he had signed the MOCOs on behalf of the First and Second Defendants as a result of a 'lack of attention to detail' (because at the time he signed he knew that he was not acting for the First Defendant), it was also false and misleading.
We find that the Practitioner's intention in making those statements in the email was to mislead the court and deflect criticism of his earlier conduct.

Ground 4 – affidavit of 22 July 2019

We have set out the content of the affidavit at [179].
We have already found that the Practitioner did not appreciate that his retainer to act for the First Defendant in the proceedings had come to an end. To the extent that the affidavit indicated that he regarded the Firm's retainer with Ironbridge to be an end as at 21 July 2017 and that he had not taken instructions from the administrators for that reason, we find that it was false and misleading.
We have also found that the Practitioner did not understand that 'Ironbridge was under a statutory stay, under s 444E(3) of the Corporations Act by which it was impermissible that the Plaintiff could continue this action against Ironbridge without the leave of the court'. His affidavit says that this was a reason why he did not take instructions from the administrators. We find that to be false and misleading because the affidavit intends to convey that his understanding of the effect of s 444E of the Corporations Act was in fact the reason he did not seek instructions from the administrators, when he did not have that understanding.
We find the Practitioner made those statements intending to mislead the court. There is no other explanation open on the facts as we have found them.

Ground 5 – the letter to Mr Penglis SC of 22 July 2019

We have set out the content of the letter at [182].
As will be apparent from comparing the letter with the draft which had been amended by Mr Zelestis KC and returned to the Practitioner, (which we have set out at [203]), the Practitioner changed the first of Mr Zelestis KC's proposed additions from '(as I knew at the time)' to '(as I understood it)'. He was not asked about why he made that change or whether he thought the two statements were different. We find that the letter intended to convey to the reader that the Practitioner knew at the time he notified the parties about the First Defendant being in administration and subject to a DOCA, that the effect was that the SC Proceeding was stayed against the First Defendant. That was untrue.
It follows from our earlier finding that the Practitioner did not understand that his retainer had come to an end when the administrators were appointed, that we also find that the statement in the letter that that was his understanding at the time was false and misleading.
It also follows that we find that the statement in the letter announcing that he appeared for the First and Second Defendants and the signing of the MOCOs on behalf of the First Defendant (and the Second Defendant) were the result of inadvertence, or lack of attention to detail, were also false and misleading, because we have found he did not have appreciation that the action was stayed against the First Defendant at the time he took those actions.
Again, we find that the reason for making the misleading statements was to avoid criticism of his conduct in purporting to act for the First Defendant after it had entered into administration and the DOCA when he was no longer able to do so.

Ground 6 August 2019 affidavit

Ground 6 relates to the affidavit prepared and sworn by the Practitioner on 5 August 2019 in opposition to the Plaintiff's application that the firm pay the costs of its application under s 444D(1)(b) and/or 440E(3) of the Corporations Act. We have set out the content of the affidavit at [189].
We have already found that the contents of the email from the Practitioner to Mr Penglis SC dated 18 July 2019 was misleading in certain respects. It must follow from that conclusion, that the Practitioner's statement in the affidavit that 'insofar as the email contains my explanation for W+H remaining on the record for Ironbridge, it is true and correct' is itself false and misleading.
We have also found that the state of the Practitioner's knowledge was not as he set it out in the letter to the Associate of 22 July 2019 which was attached to his affidavit of 5 August 2019 as attachment JAR1. It must therefore follow, and we find, that the statement in that affidavit that the contents of that letter were true and correct was also false and misleading.
Again, the only purpose for making the misleading statements in the affidavit was to deflect criticism of his earlier conduct.

Characterisation of the conduct

As part of determining whether the making of the false and misleading representations the subject of Grounds 2 – 6, amount to professional misconduct or unsatisfactory professional conduct, we must determine whether the Practitioner made the false and misleading representations knowingly or, alternatively, with reckless disregard to the question of whether the statement was false and misleading or whether the Practitioner was careless or negligent in making the representations.

Meaning of reckless disregard, negligence and carelessness

Where it is alleged that a practitioner has provided information or made a statement which is false or misleading there are, three categories of case in which that conduct will constitute either professional misconduct or unsatisfactory professional conduct. They were identified by the Court of Appeal in Giudice v Legal Profession Complaints Committee in the following terms:[200]
First, the Practitioner might know that the statement or information is false or misleading. Second, the practitioner might have reckless disregard to the question of whether the statement 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 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 standards of conduct reasonably expected of a practitioner such as to constitute professional misconduct, within the taxonomy of the 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.
[200] Giudice v Legal Profession Complaints Committee [2014] WASCA 115 (Giudice) at [8] citing Fidock v Legal Profession Complaints Committee [2013] WASCA 108 (Fidock).
In assessing whether a practitioner has made a statement with reckless disregard for the truth or falsity of the statement, it is necessary for the Tribunal to find, as a fact, that the practitioner wilfully disregarded the truth or falsity of the relevant statement, put another way, had closed their mind to the question of whether it was true or false.
Whether a practitioner has made a statement with reckless disregard as to the truth or falsity of the statement 'that fact must be found with reference to a subjective assessment of the practitioner's actual state of mind – in the words of the older cases 'not caring in the [practitioner's] own heart and conscience whether it was true or false'.[201] In that context, 'not caring' is not the same as 'not taking care'.[202]
[201] Giudice at [2] and [44] (Martin CJ) and [130] (Edelman J).
[202] Giudice at [45] (Martin CJ) citing Angus v Clifford [1891] 2 Ch 449 at [470] – [471].
A practitioner will have recklessly disregarded whether a statement is true or false where:
1.The practitioner was aware, at the time the statement was made, that there was a risk of the statement being untrue or false; and
2.The practitioner consciously disregarded that risk.[203]
[203] Giudice at [95] (Buss JA).
But even where the Tribunal reaches that conclusion, that is not the end of the matter, because the Tribunal must then consider:
Whether it should be concluded that, in all of the circumstances, the [practitioner] had engaged in professional misconduct, or alternatively, unsatisfactory professional conduct.[204]
[204] Giudice at [98] (Buss JA).
The issue of what knowledge must be proved in order to establish that a practitioner was recklessly indifferent to whether a statement was false or misleading was considered by the Court of Appeal in Giudice.
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 in Giudice acknowledged,[205] 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.[206]
[205] Giudice at [42] (Martin CJ); at [81] (Buss JA), at [130] (Edelman J).
[206] Giudice at [42] – [44] (Martin CJ), at [81] – [82] Buss JA; at [130] (Edelman J).
Martin CJ observed that in disciplinary proceedings of the present kind, 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,[207] or 'not caring in the man's own heart and conscience whether it was true or false'.[208] The Chief Justice noted that the Tribunal had made 'no express finding to the effect that at the time the practitioner settled [the relevant paragraph] of the client's affidavit he was indifferent to its truth or falsity, in the sense that he did not care whether it was true or false'.[209] His Honour concluded that unless such a finding was implicit in the Tribunal's reasons, it could not be concluded that the Tribunal had correctly addressed and answered 'the critical question which it was required to answer'.[210]
[207] Giudice at [44] (Martin CJ) referring to Fidock.
[208] Giudice at [44] (Martin CJ) quoting Le Lievre v Gould [1893] 1 QB 491 at [501] (Bowen CJ).
[209] Giudice at [46] (Martin CJ).
[210] Giudice at [46] (Martin CJ).
Edelman J agreed with Martin CJ that the allegation of recklessness was an allegation of subjective recklessness 'in the sense of the practitioner being indifferent to the truth of the statement or 'not caring in the [practitioner's] own heart and conscience whether it was true or false'.[211]
[211] Giudice at [130] (Edelman J).
Buss JA agreed that the assessment required was a subjective one. His Honour gave a more expansive analysis of what that subjective assessment required. His Honour 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'.[212] 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 subjective elements:[213]
[212] Giudice at [87] (Buss JA).
[213] Giudice at [94] – [97] (Buss JA).
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.

Resolution

We have already found that the only available inference from all of the contemporaneous evidence of the Practitioner's conduct of the SC Proceeding from the time he learned that the First Defendant was in administration and had entered into a DOCA until 17 July 2019, is that, throughout that time the Practitioner's real understanding was that the First Defendant would not play any further part in the SC Proceeding because it had no money and was not the target of what he regarded to be sham proceedings. That is, we have already found that the Practitioner did not have his asserted general understanding that there was an impediment to the SC Proceeding continuing against the First Defendant.
It follows from the fact that the Practitioner did not, between learning of the First Defendant being in administration and subject to the DOCA and 16 July 2019, appreciate that the SC Proceeding did not continue against the First Defendant that when he wrote the emails and letters, swore the affidavits the subject of Grounds 2 – 6, he knew that they contained false and misleading statements which were intended to convey to their readers that he did have that appreciation.
The Legal Profession Conduct Rules 2010 (Conduct Rules), which applied at the time of these events, (Conduct Rules 5 and 6) set out the fundamental duties of, among others, Australian lawyers engaged in legal practice in Western Australia at the time. Those Conduct Rules provide as follows:
5.Paramount duty to the court and the administration of justice
5.1A practitioner's duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty including, but not limited to a duty owed to a client of the practitioner.
6.Other fundamental ethical obligations
4.1 A practitioner must —
(1)act in the best interests of a client in any matter in which the practitioner represents the client; and
(2)be honest and courteous in all dealings with clients, other practitioners and other persons involved in a matter where the practitioner acts for a client; and
(3)deliver legal services competently and diligently; and
(4)avoid any compromise to the practitioner's integrity and professional independence, and
(5)comply with these rules and the law.
Conduct Rule 34 also bears upon this matter. It concerns a practitioner's duty to the court. It relevantly provides:[214]
(1)A practitioner must not deceive or knowingly or recklessly mislead the court.
(2)A practitioner must correct misleading statements made to the court as soon as possible after the practitioner becomes aware that the statement was misleading.
[214] Conduct Rules, r 34.
Conduct Rule 37 deals with a practitioner's obligations in communications with opponents. Relevantly, it provides:[215]
(1)A practitioner must not knowingly make a false or misleading statement to an opponent in relation to a matter (including its compromise).
(2)A practitioner must take all necessary steps to correct any false or misleading statement unknowingly made by the practitioner to an opponent as soon as possible after the practitioner becomes aware that the statement was false or misleading.
[215] Conduct Rules, r 37.
Even absent reference to the Conduct Rules, it is well understood that one of the fundamental obligations of legal practitioners is to act with honesty and candour with the court and with other practitioners at all times. Not only is dishonesty a breach of the Conduct Rules but it is conduct which is capable of constituting unsatisfactory professional conduct or professional misconduct for the purposes of the LP Act.
In this case, because we have found that the Practitioner's impugned communications the subject of Grounds 2 – 6 were deliberately intended to convey false impressions as to his state of knowledge and a false impression as to why he had taken certain actions in the litigation, we can only find that each constitutes an act of professional misconduct.
In our view, the lack of candour on each occasion is conduct in connection with the practice of the law that may justify a finding that the Practitioner is not a fit and proper person to engage in legal practice and therefore is misconduct of the kind in s 403(1)(b) of the LP Act.
It is also undoubtedly conduct that:
(1)fell short, to a substantial degree, of the standard of conduct observed and approved by members of the profession of good repute and competence; and
(2)would be reasonably regarded as disgraceful and dishonourable by practitioners of good repute and competence.

Proposed orders

We propose making the following orders as a consequence of our findings:
1.The Practitioner is guilty of professional misconduct within the meaning of s 403 of the Legal Profession Act 2008 (WA) by between 11 October 2017 and 5 August 2019 the Practitioner:
(a)caused his firm to purport to act as the solicitor of record for a defendant to Supreme Court proceedings when the firm was not authorised to do so and had no instructions to do so; and
(b)purported to act as solicitor and counsel for a defendant to the Supreme Court proceedings when he was not authorised and had no instructions to do so.
2.The Practitioner is guilty of professional misconduct within the meaning of s 403(1)(b) of the Legal Profession Act 2008 (WA) and which conduct:
(a)to a substantial degree fell short of the standard of professional conduct observed and approved by members of the profession of good repute and competence; and
(b)would reasonably be regarded as disgraceful and dishonourable by practitioners of good repute and competence,
by, on about 18 July 2019, preparing and sending an email to another practitioner in circumstances where:
(c)the Practitioner knew that the email contained statements that were misleading; and
(d)the Practitioner intended the other practitioner to be misled by those statements.
3.The Practitioner is guilty of professional misconduct within the meaning of s 403(1)(b) of the Legal Profession Act 2008 (WA) and which conduct:
(a)to a substantial degree fell short of the standard of professional conduct observed and approved by members of the profession of good repute and competence; and
(b)would reasonably be regarded as disgraceful and dishonourable by practitioners of good repute and competence,
by, on about 22 July 2019, preparing and sending a letter to the Associate to Justice Archer of the Supreme Court in circumstances where:
(c)the Practitioner knew that the letter contained statements that were misleading; and
(d)the Practitioner intended the Court to be misled by those statements.
4.The Practitioner is guilty of professional misconduct within the meaning of s 403(1)(b) of the Legal Profession Act 2008 (WA) and which conduct:
(a)to a substantial degree fell short of the standard of professional conduct observed and approved by members of the profession of good repute and competence; and
(b)would reasonably be regarded as disgraceful and dishonourable by practitioners of good repute and competence,
by, on about 22 July 2019, swearing an affidavit and causing it to be filed in Supreme Court proceedings in circumstances where:
(c)the Practitioner knew that the affidavit contained statements that were misleading; and
(d)the Practitioner intended the Court to be misled by those statements.
5.The Practitioner is guilty of professional misconduct within the meaning of s 403(1)(b) of the Legal Profession Act 2008 (WA) and which conduct:
(a)to a substantial degree fell short of the standard of professional conduct observed and approved by members of the profession of good repute and competence; and
(b)would reasonably be regarded as disgraceful and dishonourable by practitioners of good repute and competence,
by, on about 22 July 2019, preparing and sending a letter to another practitioner in circumstances where:
(a)the Practitioner knew that the letter contained statements that were misleading; and
(b)the Practitioner intended that the other practitioner would be misled by those statements.
6.The Practitioner is guilty of professional misconduct within the meaning of s 403(1)(b) of the Legal Profession Act 2008 (WA) and which conduct:
(a)to a substantial degree fell short of the standard of professional conduct observed and approved by members of the profession of good repute and competence; and
(b)would reasonably be regarded as disgraceful and dishonourable by practitioners of good repute and competence,
by, on about 5 August 2019, swearing an affidavit and causing it to be filed in a Supreme Court proceeding in circumstances where:
(c)the Practitioner knew that the affidavit contained statements that were misleading; and
(d)the Practitioner intended the Court to rely on those statements.

Before making the orders, we will give the parties an opportunity to be heard in relation to their terms.

Orders

The Tribunal orders:
1.The parties are to confer about the proposed orders set out in paragraph [349] of the reasons for decision and to inform the Tribunal by 22 January 2024 if they consider that any amendments are required in order to properly reflect the findings of the Tribunal set out in the reasons for decision.
2.If the Tribunal receives notice that the parties consider that the proposed orders need to be amended, then the matter will be listed for a directions hearing.
3.The parties are to confer about orders to be made to programme the matter for a hearing of the issues of penalty and costs.
4.Following conferral, the parties are to file in the Tribunal, by 22 January 2024, an agreed Minute of Proposed Orders or, failing agreement, each party is to file their own Minute of Proposed Orders, programming the matter to a hearing of the issues of penalty and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS
Associate to Judge Glancy
19 DECEMBER 2023

(i) email dated 20 July 2019 Practitioner to Mr Zelestis KC;
(ii) email dated 18 July 2019 from Mr Penglis SC to Practitioner;
(iii) letter from Administrator to Plaintiff's solicitor dated 19 July 2019;
(iv) Minute of Amended Statement of Claim dated 12 July 2019;
(v) Amended defence of the Second Defendant pursuant to the orders of The Honourable Justice Archer made 16 July 2019; and
(vi) dated 18 July 2019.