Legal Services and Complaints Committee v Staffa
[2025] WASC 6
•14 JANUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : FULL BENCH
CITATION: LEGAL SERVICES AND COMPLAINTS COMMITTEE -v- STAFFA [2025] WASC 6
CORAM: HILL J
STRK J
SOLOMON J
HEARD: 21 OCTOBER 2024
DELIVERED : 14 JANUARY 2025
FILE NO/S: LPD 3 of 2024
BETWEEN: LEGAL SERVICES AND COMPLAINTS COMMITTEE
Applicant
AND
KEVIN COLIN BENEDICT STAFFA
Respondent
Catchwords:
Legal Practitioners - Application to remove practitioner's name from the Supreme Court roll - Application made by the Legal Practice Board pursuant to the Legal Profession Uniform Law (WA) - Whether practitioner a fit and proper person - Turns on own facts
Legislation:
Legal Profession Act 2008 (WA)
Legal Profession Conduct Rules 2010 (WA)
Legal Profession Uniform Law (WA)
Legal Profession Uniform Law Application Act 2022 (WA)
Result:
Order that the practitioner's name be removed from the Supreme Court roll under the Legal Profession Uniform Law (WA), with costs
Category: B
Representation:
Counsel:
| Applicant | : | MD Cuerden SC & ND Pope |
| Respondent | : | AJ Goldfinch |
Solicitors:
| Applicant | : | Legal Services and Complaints Committee |
| Respondent | : | Stables Scott |
Cases referred to in decision:
A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253
Barristers' Board v Darveniza (2000) 112 A Crim R 438
Johns v Law Society of New South Wales [1982] 2 NSWLR 1
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Law Society (New South Wales) v Foreman (1994) 34 NSWLR 408
Legal Practice Board v Elek-Roser [2024] WASC 405
Legal Practitioners Complaints Committee v Palumbo [2005] WASCA 129
Legal Profession Complaints Committee and Staffa [2020] WASAT 58
Legal Profession Complaints Committee and Staffa [2020] WASAT 58 (S)
Legal Profession Complaints Committee v Bower [2019] WASC 281
Legal Profession Complaints Committee v Brennan [2010] WASC 198
Legal Profession Complaints Committee v Brickhill [2013] WASC 369
Legal Profession Complaints Committee v Dutton [2014] WASC 457
Legal Profession Complaints Committee v in de Braekt [2013] WASC 124
Legal Profession Complaints Committee v Lawson [2024] WASC 158
Legal Profession Complaints Committee v Love [2014] WASC 389
Legal Profession Complaints Committee v Masten [2011] WASC 71
Legal Profession Complaints Committee v McLean [2012] WASC 297
Legal Profession Complaints Committee v Mugliston [2022] WASC 215
Legal Profession Complaints Committee v Oud [2019] WASC 287
Legal Profession Complaints Committee v Smith [2014] WASC 458
Legal Profession Complaints Committee v Tang [2022] WASC 204
Legal Profession Complaints Committee v Waters [2015] WASC 141
Re Maraj (a legal practitioner) (1995) 15 WAR 12
Staffa v Legal Profession Complaints Committee [2022] WASCA 83
Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202
Table of Contents
Introduction
Procedural background
The findings of the Tribunal
Factual background
Mr Staffa's conduct in mid-2016
Mr Staffa's dealings with the LPCC
The allegations made against Mr Staffa by the LPCC and Mr Staffa's response
Ground 1
Ground 2
Ground 3
Ground 4
The Tribunal's reasons
Ground 1
Ground 2
Ground 3
Ground 4
Penalty and costs
The source of the power to remove a practitioner's name from the Supreme Court roll
Applicable principles
The approach to be taken by this court
Conclusiveness
Overview of the submissions made as to the critical question
Personal circumstances
Disposition
Undertaking not to practice
Conclusion and orders
REASONS OF THE COURT:
Introduction
On 21 October 2024 the court heard an application by the Legal Services and Complaints Committee (LPCC)[1] for an order that Kevin Colin Benedict Staffa be removed from the roll of practitioners maintained by this court.
[1] The Legal Services and Complaints Committee was established by s 57 of the Legal Profession Uniform Law Application Act 2022 (WA). Pursuant to s 269 of the Legal Profession Uniform Law Application Act, this committee is the same entity and is a continuation of the Legal Profession Complaints Committee which was established under s 555(a) of the Legal Profession Act 2008 (WA). Given the complaint was laid by the Legal Profession Complaints Committee, we have adopted LPCC rather than LSCC in these reasons to refer to this committee.
Mr Staffa was represented at the hearing of the application. In summary, it was Mr Staffa's position that in all of the circumstances, there would be no rational or public purpose or benefit in removing his name from the Supreme Court roll.
The court has concluded that Mr Staffa's name should be removed, and what follows are our reasons for so concluding.
Procedural background
An application to the State Administrative Tribunal was made by the LPCC in March 2019. By its application, the LPCC sought an order that the Tribunal make a finding that Mr Staffa had engaged in professional misconduct pursuant to s 438(1) of the Legal Profession Act 2008 (WA), and consequential orders pursuant to s 438(2) of the Legal Profession Act. The LPCC also sought an order that Mr Staffa pay the LPCC's costs pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA).
On 15 December 2020 the Tribunal, pursuant to s 438(2) and s 438(4) of the Legal Profession Act, ordered that a report be transmitted to the Supreme Court (full bench) on its findings as to the conduct of Mr Staffa, with a recommendation that Mr Staffa's name be removed from the roll of persons admitted to the legal profession under the Legal Profession Act.
The findings of the Tribunal were that Mr Staffa had:
(a)engaged in professional misconduct as defined in s 403(1) of the Legal Profession Act by providing legal services to a client when Mr Staffa and Mr Staffa's law practice was engaged by another client in the same or related matter and the interests of the client and the other client were adverse and there was a conflict of the duties to act in the best interests of each client contrary to r 14(2) of the Legal Profession Conduct Rules 2010 (WA);
(b)engaged in unsatisfactory professional conduct as defined in s 402 of the Legal Profession Act by rendering two invoices to a client in respect of work carried out for another client;
(c)engaged in professional misconduct as defined in s 403(1) of the Legal Profession Act by advising a client to transfer money belonging to another client to a bank account controlled by the first client without the consent or authority of the other client; and
(d)engaged in professional misconduct as defined in s 403(1) of the Legal Profession Act by failing to be open and candid in his dealing with the LPCC in breach of r 50 of the Legal Profession Conduct Rules.
By order 2 of the orders made by the Tribunal on 15 December 2020, Mr Staffa's local practicing certificate was suspended with effect from 30 days after the date of that order (that is, from 14 January 2021), until determination by this court.
Under cover of a letter dated 18 December 2020, a report from the Tribunal was made and transmitted to this court in relation to Mr Staffa, recommending that Mr Staffa's name be removed from the roll of practitioners.
Mr Staffa subsequently appealed certain findings of the Tribunal and the Tribunal's penalty orders. The appeal was not concerned with whether the Tribunal's recommendation should be accepted by this court, but whether the Tribunal had made a material error in (among other things) making the recommendation that Mr Staffa's name be removed from the roll of practitioners.
On 13 July 2022 the Court of Appeal allowed the appeal in part. While it found that Mr Staffa had identified appellable error, the Court of Appeal concluded that it was not satisfied that the Tribunal's conclusions as to its findings of professional misconduct and its recommendation were affected by material error. The Court of Appeal ordered that the orders made by the Tribunal on 15 December 2020 be varied, and that the reasons for decision given by the Tribunal in Legal Profession Complaints Committee and Staffa [2020] WASAT 58 be amended by deleting certain words as specified in the order made by the Court of Appeal.[2]
[2] Staffa v Legal Profession Complaints Committee [2022] WASCA 83.
Following the determination of the appeal and under cover of a letter dated 14 December 2023, the Tribunal made and transmitted a new report to this court in relation to Mr Staffa, recommending that Mr Staffa's name be removed from the roll of practitioners. In accordance with the Tribunal's orders made on 15 December 2020, varied by operation of order 3 of the orders made by the Court of Appeal on 13 July 2022, the Tribunal's report to this court received on or about 14 December 2023 comprised the following:
(a)the Tribunal's reasons in Legal Profession Complaints Committee and Staffa [2020] WASAT 58 (save that by order of the Court of Appeal the words 'the Practitioner knew that' had been deleted on the two occasions that those words appeared in the last sentence of [130] thereof) (referred to in these reasons as the conduct reasons);
(b)the Tribunal's orders made on 2 June 2020;
(c)the Tribunal's reasons in Legal Profession Complaints Committee and Staffa [2020] WASAT 58 (S) (referred to in these reasons as the penalty reasons);
(d)the transcript of the hearing of the Tribunal on 30 and 31 January 2020 and 6 March 2020 and copies of the exhibits tendered at that hearing;
(e)the transcript of the hearing of 4 November 2020 and the copies of exhibits and affidavits tendered at that hearing; and
(f)the Tribunal's orders made on 15 December 2020 (varied in accordance with order 3 of the orders made by the Court of Appeal on 13 July 2022).
From the Tribunal's letter of 14 December 2023, it appeared that the delay between the determination of Mr Staffa's appeal in July 2022 and the receipt of the Tribunal's further letter and report some 18 months later in December 2023 came about as a result of administrative oversight.
On 17 April 2024 the LPCC filed the originating motion in this court. By the application, the LPCC sought the removal of Mr Staffa from the roll of practitioners pursuant to s 23(1) of the Legal Profession Uniform Law (WA), alternatively pursuant to s 444(2)(b) of the Legal Profession Act.
Outlines of written submissions were filed in advance of the hearing of the application. In the course of the hearing, senior counsel for the LPCC referred to and relied upon the outline of written submissions filed on 4 June 2024 and responsive submissions filed on 12 August 2024. Counsel for Mr Staffa referred to and relied on the outline of written submissions filed on 12 July 2024.
The findings of the Tribunal
The LPCC's application to the Tribunal was heard over 30 and 31 January 2020, and further responsive oral submissions were heard on 6 March 2020. Various books of documents were before the Tribunal, and Mr Staffa and another witness gave evidence before the Tribunal and were cross‑examined.
Factual background
The factual background to the application to the Tribunal was in the main not contentious. The relevant circumstances may be summarised as follows.
Mr Staffa was admitted to legal practice on 14 February 1978. At all material times, he was an Australian legal practitioner and the sole legal practitioner director of an incorporated legal practice, Legal Success Pty Ltd which traded as 'Legal Success'.
Mr Staffa's conduct in mid-2016
From around May 2012, Mr Staffa acted for a company (referred to in the conduct reasons of the Tribunal and in these reasons as the Australian Company). The Australian Company was registered on 16 May 2012 and was a wholly owned subsidiary of a limited liability company incorporated under the laws of Germany (referred to in the conduct reasons of the Tribunal and in these reasons as the German Company). The German Company was owned to the extent of 75% by another German company, and to the extent of 25% by a German resident. In the conduct reasons of the Tribunal and in these reasons the managing director of the company which held 75% of the shares of the German Company is referred to as MH, and the German resident which held the remaining 25% is referred to as HB.
The Australian Company acted as the Australian agent for the German Company for the sale in Australia of equipment and parts made by the German Company for ore beneficiation and related services. Mr Staffa acted for the Australian Company in respect of various matters, on instructions from a director on the Australian Company's behalf (referred to in the conduct reasons of the Tribunal and in these reasons as W).
W was a director of the Australian Company until about 8 July 2016. Although he had resigned as a director, W remained as an employee of the Australian Company as its general manager after that date, until on or around 27 July 2016.
Between about 24 June 2016 and about 28 June 2016 Mr Staffa was engaged by W on behalf of the Australian Company to provide legal advice to the Australian Company with respect to various issues concerning its management, including advising the Australian Company as to the rights and entitlements of its employees, including W, against the Australian Company.
In an email from W to Mr Staffa of 8 July 2016 from W's private email address (having previously emailed Mr Staffa from the email address of the Australian Company) bearing the title '[W] - Request for Services -Termination', W:
(a)informed Mr Staffa that he (W) had or had purportedly been given notice of termination of his employment and had been removed as a director of the Australian Company by resolution of the Australian Company's sole shareholder passed or purportedly passed the previous day, 7 July 2016;
(b)provided Mr Staffa with copies of documents that he (W) had received in respect of the termination or purported termination of his directorship of, and employment with, the Australian Company;
(c)sought Mr Staffa's advice about the validity of his termination and about other matters relevant to the termination of his employment; and
(d)asked Mr Staffa to send all correspondence to his private email address, and to invoice him personally on the matter rather than the Australian Company 'unless an outcome is found whereby [the Australian Company] settles all legal fees'.
In another email from W to Mr Staffa dated 11 July 2016, again from W's private email address and again bearing the title '[W] ‑ Request for Services - Termination', W:
(a)attached calculations as to the approximate amount of his employment entitlements as provided by the Australian Company's accountants, based on W's instructions (the amount stated being $350,158.62);
(b)stated that his (W's) 'objectives' were to obtain confirmation from the Australian Company's shareholder as to his entitlements, to determine if the circumstances of his termination qualified for a redundancy package, to clarify the period of notice he would be paid, and to explore on what grounds, if any, he could leave the Australian Company prior to the expiry of the 6 months' notice period; and
(c)asked Mr Staffa to review and advise if there was legal justification for any of his objectives.
In a letter dated 13 July 2016 sent by email to W at the Australian Company's email address, bearing the title 'Termination of Employment', Mr Staffa:
(a)stated that he was separately preparing his advice;
(b)advised W to change immediately the password for all of the Australian Company's bank accounts and not divulge it to any third parties, including officers of the German Company; and
(c)stated that this advice reflected Mr Staffa's concerns that 'some of the documentation emanating from Germany is ineffective and may be invalid', and that 'were [the Australian Company] to be wound up you may lose all your entitlements unless steps are taken to protect you'.
In another letter also dated 13 July 2016 sent by email to W at the Australian Company's email address, and also bearing the title 'Termination of Employment', Mr Staffa advised W not to give any advice to the German Company except to the extent it would be beneficial to W to do so, or to the extent he was obliged to do so in the course of his duties as manager of the Australian Company's business.
In a letter dated 14 July 2016 sent by email from Mr Staffa to W, also at the Australian Company's email address, the title again being 'Termination of Employment', Mr Staffa:
(a)referred to W having sought Mr Staffa's advice 'in relation to the termination of your employment with [the Australian Company]';
(b)gave advice to W about various issues including the issues raised in W's emails to Mr Staffa of 8 and 11 July 2016 and W's rights and entitlements as an employee of the Australian Company;
(c)stated that he shared a concern expressed by W that '[the German Company's] plan is to remit funds from [the Australian Company's] account back to Germany. Once that occurs, it would likely be extraordinarily difficult, and possibly very costly, for you to try to recover your employment entitlements. More than likely, [the Australian Company] would be put into voluntary liquidation, and you would be left high and dry'; and
(d)advised W as to a strategy to recover his termination entitlements including writing to the Australian Company's shareholder, the German Company, in that respect.
On or about 15 July 2016 Mr Staffa through his practice, Legal Success, billed the Australian Company in respect of his legal services for the period between 8 and 14 July 2016 (inclusive).
In accordance with Mr Staffa's advice to W in his letter of 14 July 2016 that W should write to the German Company, on 15 July 2016 W wrote to MH seeking confirmation as to W's entitlements upon termination of his employment.
MH responded to W in a letter dated 20 July 2016, in which MH stated that he could not provide W with the confirmation he sought.
By email to Mr Staffa sent on 21 July 2016, bearing the title '[W] ‑ Employment [the Australian Company]', W:
(a)provided Mr Staffa with copies of his letter to MH of 15 July 2016 and MH's response of 20 July 2016; and
(b)asked to meet with Mr Staffa 'to clarify the options that I may have to determine the possibilities of having my entitlements paid'.
In a letter dated 21 July 2016 sent by email to W, again at the Australian Company's email address bearing the title 'Termination and Other Issues', Mr Staffa responded to W's email of 21 July 2016, in which it was suggested that they meet to discuss what options may be open to W, including 'putting a proposal to [the German Company] to resolve the matter'.
On 22 July 2016 Mr Staffa met with W, in the course of which:
(a)Mr Staffa and W discussed steps that could be taken to protect and advance W's personal interests in obtaining his anticipated termination entitlements;
(b)W informed Mr Staffa that he had resigned as a director of the Australian Company on 8 July 2016; and
(c)W proposed 'taking and parking' money from the Australian Company in an amount sufficient to cover W's anticipated termination entitlements.
In a letter of the same date (22 July 2016), sent by email to W at W's personal email address bearing the title 'Termination of Employment', Mr Staffa:
(a)referred to their meeting earlier that day;
(b)advised W that there was a real risk of W losing a substantial proportion, if not all, of his termination entitlements as a result of his position as managing director of the Australian Company becoming redundant;
(c)said:
Given the evasive response in the letter of 20 July 2016 from [MH], I see no option but for you to take proactive steps to protect your entitlements. I therefore confirm that my advice to you is that you immediately transfer into a bank account controlled only by you the full amount of your employment entitlements from today up to and including 4 January 2017 as per the advice you have received from [the Australian Company's accountants] and my office.
(d)noted that he (Mr Staffa) was now aware that W had resigned as a director on or about 8 July 2016 but that this did not alter his advice; and
(e)attached a draft letter for W to send to MH.
The draft letter prepared by Mr Staffa and sent to W recorded, among other things:
(a)that there was doubt as to whether W would be paid his employee entitlements;
(b)the following passage:
[I]t is patently obvious that the agenda of [the German Company] (the shareholder) is to siphon off the funds of [the Australian Company] to prop up [the German Company's] ailing business in Germany.
(c)the following passage:
[I]n the circumstances, and on the basis of advice I have received, I have transferred the sum of $[[W] to insert] from [the Australian Company's] account into a holding account controlled by me, to ensure that I receive my full termination entitlements. The above amount is calculated as follows.
On or about 22 July 2016 Mr Staffa through his practice, Legal Success, billed the Australian Company in respect of his legal services provided on 21 and 22 July 2016.
On or about 22 July 2016 W transferred $378,000 from the Australian Company's bank account into a bank account controlled by W.
On 25 July 2016 W wrote to MH in terms based on (but not identical to) the draft letter which Mr Staffa had prepared on W's behalf referred to at [33(e)] and [34] above. In his letter W informed MH that, having taken advice and on the basis of that advice, he (W) had transferred the sum of $378,000 from the Australian Company's account 'into a holding account controlled by me, to ensure that I receive my full termination entitlements'.
In an email dated 27 July 2016 from a legal practitioner engaged by the German Company (referred to in the conduct reasons of the Tribunal and in these reasons as WM), Mr Staffa was asked to confirm who Mr Staffa's client was at the time he advised W regarding the transfer of funds from the Australian Company's account.
In a responsive email of the same date, Mr Staffa confirmed that he was 'at all times taking instructions from and providing advice to [the Australian Company], via its manager [W]'.
In a letter of 27 July 2016 sent by email to W, bearing the title 'Termination of Employment', Mr Staffa:
(a)referred to two lengthy telephone discussions he had had with W on the afternoon of 26 July 2016;
(b)recorded as follows:
As a result of your concerns, which I share, I have agreed with your idea of putting the funds into the holding account and in fact I have stated clearly that that is my advice. This should give you some comfort as no matter how matters unfold, you will be able to state, categorically, that you sought legal advice and acted only in accordance with legal advice.
(c)told W to keep the funds in the holding account, but advised W that he was almost certainly not entitled to receive the termination payments until his employment actually ended, which had not then occurred;
(d)advised W as to the terms of his letter of resignation from the Australian Company; and
(e)concluded by advising W in the following terms:
[i]f you now leave [the Australian Company] I will be obliged to open a file in your name and charge you for my time, including the teleconferences on 26 July 2016 and this advice. Please let me know whether that is agreeable to you.
On 27 July 2016 following receipt by W of a letter by email from MH accusing him (W) of misconduct and criminal behaviour with respect to the transfer of the funds and demanding the return of those funds that day, Mr Staffa had a telephone discussion with W in which he advised W, with respect to the allegations of misconduct and criminal behaviour made against him, that he disagreed with those allegations.
In a letter dated 28 July 2016 sent by email to W at his personal email address, again bearing the title 'Termination of Employment', Mr Staffa confirmed that the decision as to whether or not W returned the funds was 'a decision for [W] to make'. Mr Staffa recorded that he 'readily agreed that [the transfer of funds into a holding account] was appropriate if you had reason to believe that the funds would be transferred overseas and might result in you not being paid', and advised that he believed that the Australian Company would not pay for any of Mr Staffa's ongoing work. Mr Staffa said he was proceeding on the basis that W would ensure that his tax invoices were paid and he asked W to confirm that that was the case.
On 1 August 2016 Mr Staffa through his legal practice, Legal Success, billed W in respect of his legal services provided between 27 July and 1 August 2016.
Mr Staffa's dealings with the LPCC
By a letter dated 10 April 2017, the LPCC wrote to Mr Staffa and:
(a)advised Mr Staffa that the LPCC was investigating a complaint made in respect of his conduct, including that Mr Staffa advised W to transfer the funds from the Australian Company's account to a holding account in circumstances in which Mr Staffa was aware, or ought to have been aware, that W was not presently entitled to the funds and had no authority to transfer the funds, and that the transfer may be regarded as an unlawful act by W;
(b)informed Mr Staffa that he had the right to make submissions to the LPCC in respect of the conduct complained of;
(c)requested that Mr Staffa provide to the LPCC his entire original file and all documents relating to the matter; and
(d)reminded Mr Staffa that he must be open and candid in his dealings with the LPCC and must provide a full and accurate account of his conduct, and referred to r 50(2) and (3) of the Legal Profession Conduct Rules.
In his letter to the LPCC of 2 May 2017, Mr Staffa:
(a)provided a file of documents which included (among other things) Mr Staffa's letters of 14 July 2016 and 22 July 2016 (referred to at [26] and [33] respectively above), his draft letter to MH (referred to at [33(e)] and [34] above) and his email and his letter both dated 27 July 2016 (referred to at [39] and [40] above);
(b)noted that the LPCC was mistaken to state that he (Mr Staffa) had advised W to transfer an amount of $378,000 from the Australian Company's account, and represented that 'that decision was made by [W]';
(c)provided a table of comments with respect to the documents provided in the file to the LPCC;
(d)in that table, with respect to Mr Staffa's letter to W of 14 July 2016 (referred to at [26] above), made the comment that:
[N]ote: none of the advice given by me suggested that [W] remove funds from any accounts of [the Australian Company] - that suggestion came from him, and it was no doubt a decision made by him in his capacity as managing director.
(e)in that table, with respect to Mr Staffa's letter to W of 22 July 2016 (referred to at [33] above), said 'No comment';
(f)in that table, with respect to Mr Staffa's letter to W of 27 July 2016 (referred to at [40] above), made the comment that:
[I]n paragraph 5(a), I confirmed that it was [W] whose idea it was to put funds of [the Australian Company] into a holding account, and that this had been done without any input from me.
In a letter dated 5 February 2018 the LPCC again wrote to Mr Staffa, requesting that he provide further submissions as to, among other things, the reference in Mr Staffa's notes of the meeting with W of 22 July 2016 (referred to at [32] above) that he 'take and park the money'.
In his letter to the LPCC dated 5 March 2018, Mr Staffa noted that W could either confirm or deny that W initially transferred the funds of his own volition without his (Mr Staffa's) advice or input; and that W had already made a decision to put funds into a holding account to cover his anticipated employee entitlements prior to Mr Staffa's meeting with W on 22 July 2016 (referred to at [32] above).
On 4 April 2018 the LPCC again wrote to Mr Staffa, seeking further submissions.
In his letter to the LPCC of 27 April 2018, Mr Staffa repeated and supplemented the answer he provided to the LPCC in his letter of 5 March 2018, and reported that:
(a)W had made the decision to transfer the funds;
(b)W had actually effected the transfer before seeking advice from Mr Staffa; and
(c)he (Mr Staffa) did not advise W to transfer the funds from any account or to any account, and that that was a decision that W had made.
The allegations made against Mr Staffa by the LPCC and Mr Staffa's response
In the Tribunal's conduct reasons, the Tribunal summarised the allegations made by the LPCC against Mr Staffa,[3] and Mr Staffa's response to the LPCC's allegations.[4] An overview of each ground and Mr Staffa's response to the same is set out below.
Ground 1
[3] Conduct reasons [47] ‑ [51].
[4] Conduct reasons [67] ‑ [91].
The LPCC's first allegation against Mr Staffa was that:[5]
[Mr Staffa] between on or about 8 July 2016 and on or about 28 July 2016 engaged in professional misconduct within the meaning of s 403 and s 438 of the [Legal Profession Act], in that his conduct fell short consistently and by a substantial degree of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, in that, having been engaged by the Australian Company through its managing director, W, to provide legal services to the Australian Company, namely legal advice with respect to issues concerning the management of the Australian Company including advising the Australian Company as to the rights and entitlements of the employees of the Australian Company (including W) against the Australian Company, [Mr Staffa] provided legal services to W for the personal benefit of W and pursuant to W's instructions in his personal capacity with respect to the same or related matters, namely legal advice to W in relation to the termination or purported termination of his employment by the Australian Company, his rights and entitlements consequential upon the termination of his employment and recovery of his entitlements from the Australian Company consequential upon the termination of his employment, in circumstances in which the interests of the Australian Company and W were adverse and there was a conflict or potential conflict of his duties to act in the best interests of each of the Australian Company and W, contrary to r 14(2) of the [Legal Profession Conduct Rules].
[5] Conduct reasons [48].
The Tribunal recorded that in response to the first allegation, Mr Staffa, through counsel, confirmed that it was not in dispute that the interests of W and of the Australian Company were adverse; and that there was a conflict or potential conflict of duties to act in the best interests of each of W and the Australian Company. The issue raised by Mr Staffa was whether Mr Staffa was engaged by the Australian Company and by W in the same or a related matter.[6]
[6] Conduct reasons [67] ‑ [68].
Mr Staffa's position was that during the period between 8 July 2016 and 28 July 2016, he was acting only for W and not for the Australian Company; and that his instructions from the Australian Company ceased as of 28 June 2016. Mr Staffa accordingly denied that during the relevant period he was acting for both the Australian Company and for W in the same or a related matter, and submitted that he was therefore not in breach of r 14(2) of the Legal Profession Conduct Rules.
As recorded at [69] of the conduct reasons, Mr Staffa conceded that by accepting W's instructions on 8 July 2016, in circumstances where he had advised the Australian Company as recently as 28 June 2016 on the same or a related matter, his conduct might have been seen to attract the principle that the due administration of justice required that he not do so.
For that reason, Mr Staffa submitted that his conduct could be characterised as unsatisfactory professional conduct. However, because the LPCC alleged only a conflict or potential conflict of interest on his part, Mr Staffa submitted the Tribunal should find the LPCC had failed to establish either position.[7]
Ground 2
[7] Conduct reasons [69].
The LPCC's second allegation against Mr Staffa was framed as follows:[8]
[Mr Staffa] on or about 15 and 22 July 2016 respectively engaged in professional misconduct within the meaning of s 403 and s 438 of the [Legal Profession Act], in that his conduct fell short consistently and by a substantial degree of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would be regarded as disgraceful or dishonourable to practitioners of good repute and competence, in that he caused [Legal Success] to render bills to the Australian Company for services performed by [Mr Staffa] for the personal benefit of W and pursuant to W's instructions in his personal capacity, and further in circumstances in which:
(a)W had expressly requested [Mr Staffa] to bill him personally with respect to the legal services the subject of those bills;
(b)the legal services the subject of those bills were adverse to the interests of the Australian Company; and
(c)on 22 July 2016, before [Mr Staffa] caused [Legal Success] to render the bill on that date, W informed [Mr Staffa] that W was no longer a director of the Australian Company.
[8] Conduct reasons [49].
As to the second allegation, Mr Staffa conceded that the invoices issued on 15 and 22 July 2016, respectively, were 'inappropriate', and further stated that they were sent in error and that they should have been sent to W.[9]
[9] Conduct reasons [71].
It was Mr Staffa's position that the proper characterisation of the issuing of the two invoices to the Australian Company was not professional misconduct but unsatisfactory professional conduct 'because [it was] the result of a single mistake'. It was submitted that his actions did not constitute professional misconduct as alleged by the LPCC because the issuing of the two invoices could not be described as falling short consistently and by a substantial degree of the standard of competence and diligence observed and approved by members of the legal profession.[10]
Ground 3
[10] Conduct reasons [72].
The LPCC's third allegation against Mr Staffa was as follows:[11]
[Mr Staffa] on or about 22 July 2016 engaged in professional misconduct within the meaning of s 403 and s 438 of the [Legal Profession Act], in that his conduct fell short by a substantial degree of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, in that he advised W to transfer money from the Australian Company's bank account to a personal account controlled by W in an amount equivalent to the estimated amount of W's potential entitlements consequential upon the termination or potential termination of his employment with the Australian Company in circumstances in which [Mr Staffa] knew that W had resigned as a director of the Australian Company on or about 8 July 2016 and:
(a) [Mr Staffa] knew or ought to have known that W had no entitlement to, or interest in, that money;
(b) [Mr Staffa] knew or ought to have known that W had no authority from the Australian Company to transfer that money to a personal account controlled by him or at all;
(c) [Mr Staffa's] advice exposed W to the possibility of being charged with the offence of stealing contrary to s 378 of the Criminal Code (WA) (Criminal Code). (Original emphasis)
[11] Conduct reasons [50].
In response to the third ground, Mr Staffa's position was that the allegation outlined in paragraph (c) of that ground (reproduced at [59] above) was critical as to how the Tribunal should consider his conduct. Through counsel, Mr Staffa submitted that:[12]
[t]he trouble is that the assertion that [Mr Staffa's] advice exposed [W] to the possibility of being charged with the offence of stealing is speculative. It's all based on hypothesis and it's not changed by reference to section 371, sub-section (2)(f) of the Criminal Code, because as my learned friend put to you, that definition deals with the intent to use the funds and there was never any evidence that [W] intended to use the funds at all. The evidence was that [W] intended to park the funds, put them into a holding account and not deal with them until his entitlements were decided.
[12] Conduct reasons [75].
On this basis, Mr Staffa submitted that the allegation outlined in paragraph (c) was not made out, but accepted that the other aspects of the third ground still needed to be dealt with.[13]
[13] Conduct reasons [76].
As to these aspects, it was submitted that as at 22 July 2016, Mr Staffa knew that W would be entitled to receive payment in respect of his employee entitlements, although the amount of those entitlements was dependent on a number of factors. Mr Staffa, in his view, therefore knew that the Australian Company was indebted to W, although the amount of the debt might change.[14]
[14] Conduct reasons [77].
Further, it was submitted that Mr Staffa had held the view that, after W had been removed as a director, W still possessed authority and responsibility in his capacity as general manager to ensure that the Australian Company paid its employees' entitlements. Mr Staffa's advice to W was that W should implement his idea to 'take and park' sufficient funds to ensure that his employee entitlements would be paid.[15]
[15] Conduct reasons [78].
Mr Staffa conceded that his advice to W was negligent, having acknowledged that he had failed to appreciate that:[16]
(a)notwithstanding that the Australian Company was indebted to W, he could not engage in 'self‑help' to protect his position by transferring funds to which he was not presently entitled; and
(b)W's authority as general manager did not extend to his transferring the funds, in circumstances where W and the new controllers of the Australian Company had not reached agreement on his entitlements.
[16] Conduct reasons [79].
Mr Staffa pointed out that part of his advice to W was that W should advise the German Company of the fact of his transfer of the funds, which advice was contained in the draft letter prepared by Mr Staffa for W, and in the letter which W sent to the German Company.[17]
[17] Conduct reasons [80].
Mr Staffa said that whether W disclosed the intention to transfer the funds immediately before doing so or disclosed it immediately after the transfer made no difference to the Australian Company's position.[18]
[18] Conduct reasons [81].
It was submitted that the Tribunal should therefore assess Mr Staffa's conduct on the basis that his advice was negligent but did not involve 'any element of dishonesty or sharp dealing' on his part.[19]
Ground 4
[19] Conduct reasons [82].
The LPCC's fourth allegation against Mr Staffa was that:[20]
[Mr Staffa] between on or about 2 May 2017 and on or about 27 April 2018 engaged in professional misconduct within the meaning of s 403 and s 438 of the [Legal Profession Act], in that his conduct fell short consistently and by a substantial degree of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, in that by his correspondence to the Committee dated 2 May 2017, 5 March 2018 and 27 April 2018, [Mr Staffa] was not open and candid in his dealings with the Committee and failed to provide a full and accurate account of his conduct in relation to matters covered by requests by the Committee to provide comments or information in relation to [Mr Staffa's] conduct or professional behaviour contrary to r 50 of the [Legal Profession Conduct Rules], in that [Mr Staffa] told the Committee that [Mr Staffa] did not advise W to transfer the Funds from the Australian Company's bank account to a personal account controlled by W (Statement) in circumstances in which:
(a) the Statement was false or misleading, or both, as in fact [Mr Staffa] did advise W to so transfer the Funds;
(b) [Mr Staffa] well knew that the Statement was false or misleading, or both, in a material respect and/or that it had the potential to mislead the Committee and [Mr Staffa] intended that the Committee be misled;
(c) alternatively to (b), [Mr Staffa] acted with reckless disregard or indifference as to whether or not the statement was false or misleading, or both, and/or had the potential to mislead the Committee and as to whether the Committee would be misled by the Statement;
(d) further alternatively to (a) and (b), [Mr Staffa] was grossly careless in failing to ensure that the Statement was not false or misleading, or both, in a material respect, and/or had the potential to mislead the Committee.
[20] Conduct reasons [51].
The Tribunal recorded at [84] of the conduct reasons that it was Mr Staffa's evidence that he was of the clear recollection that W had told him on 22 July 2016 that he had already transferred funds to another account to hold pending the determination of his entitlements; and further that he accepted that he was mistaken, and that the transfer of money had taken place after he had provided his advice of 22 July 2016.
It was pointed out by Mr Staffa that when the LPCC originally identified the nature of the complaint made against him in its letter to him of 10 April 2017, the LPCC identified the relevant complaint against him to be that he had advised W:[21]
[T]o transfer an amount of $378,000 (the funds) from [the Australian Company's] account to a 'holding account' in circumstances where [Mr Staffa] were aware, or ought to have been aware, that [W] was not presently entitled to the funds and had no authority to transfer the funds and that the transfer may be regarded as an unlawful act by [W]. (Original emphasis)
[21] Conduct reasons [85].
It was Mr Staffa's position that the response contained in his letter to the LPCC of 2 May 2017, where the allegation that he had advised W to transfer $378,000 into his own account was answered, was true. He told the LPCC in that letter that he did not advise W to transfer an amount of $378,000 from the Australian Company's account.
Mr Staffa said that he dealt with those aspects of the complaint by providing the LPCC with copies of his 'email advices to [W] of 22, 27 and 28 July 2016'; and that he was entitled to expect that the LPCC would read all of that material and read his responsive letter in the context of that material.[22]
[22] Conduct reasons [87].
Mr Staffa further said that his letter of 22 July 2016 to W, along with his proposed letter from W to the Germany Company, made it clear that he did not advise W to transfer $378,000.[23]
[23] Conduct reasons [88].
Mr Staffa went on to submit that it was important to recognise that the LPCC did not then raise the matter with him again until 5 February 2018, some 18 months after Mr Staffa had met with W and over nine months after he had written to the LPCC and provided his file. He maintained that the Tribunal should not place the same reliance on the letter from him to the LPCC dated 17 October 2016 that the LPCC did. He said that the letter was written the same day as the LPCC had refused him an extension of time in which to respond and without reference to his file.
Mr Staffa said that his suggestion to the LPCC that the LPCC contact W to ascertain what had occurred with regard to the transfer was consistent only with Mr Staffa seeking to assist the LPCC rather than an intention to mislead it.
It was Mr Staffa's position that it defied common sense that a person seeking to present a false state of affairs, as the LPCC alleged, would encourage investigation; and that his acknowledgment, prior to the hearing in the Tribunal, that he had been mistaken about the timing of the transfer of money by W was not consistent with any intention on his part to mislead the LPCC.
The Tribunal's reasons
The Tribunal dealt with each of the four grounds as separate allegations of professional misconduct on Mr Staffa's part, as was reflected in the Tribunal's conduct reasons.[24]
Ground 1
[24] Conduct reasons [99].
As to the LPCC's first allegation made against Mr Staffa, the Tribunal concluded that Mr Staffa's conduct amounted to professional misconduct. The Tribunal's reasons for so concluding are reproduced below:[25]
[25] Conduct reasons [100] ‑ [115] (references omitted).
[100][Mr Staffa] accepts, and the Tribunal finds, that [Mr Staffa], between 8 July 2016 and 28 July 2016, provided legal services to W in his personal capacity pursuant to W's instructions in his letter to [Mr Staffa] of 8 July 2016, and not for the benefit of the Australian Company. [Mr Staffa] also accepts, and the Tribunal also finds, that the interests of W and the Australian Company were adverse and that there was a conflict or potential conflict of duties to act in the best interests of each of W and the Australian Company.
[101]The issue for the Tribunal in this ground is therefore whether, between 8 July 2016 and 28 July 2016, [Mr Staffa] was also engaged by the Australian Company in the same or a related matter.
[102] The fact that [Mr Staffa] at all relevant times both before and after 8 July 2016 was taking instructions from W himself is not determinative as to whether at any point in time [Mr Staffa] was continuing to act for the Australian Company or acting for W as an individual. It is not in dispute that [Mr Staffa] almost invariably took his instructions from the Australian Company through W.
[103] The Tribunal considers that [Mr Staffa] was acting for the Australian Company when he wrote to the Australian Company on 28 June 2016. That is also not in dispute. [Mr Staffa] says however that from this date forward there was 'no suggestion that the [Australian Company] thereafter requested further advice in relation to the matters addressed' in that letter of 28 June 2016. [Mr Staffa] says that while he believed that he was still acting for the Australian Company over the days between 8 July 2016 and when he ceased to act on 29 July 2016, 'on any objective analysis he was not'.
[104] The Tribunal accepts that the Australian Company had not requested any further advice from him but otherwise does not agree with that analysis.
[105] [Mr Staffa] told the Tribunal that he 'considered at the time that [he was] the lawyer for [the Australian Company]'.
[106] The existence of this belief is supported by the fact that [Mr Staffa], in an email on 27 July 2016 to WM expressly confirmed to WM, in response to a query from WM about who [Mr Staffa] was advising with regard to the transfer of funds from the Australian Company, that [Mr Staffa] was 'at all times taking instructions from and providing advice to [the Australian Company], via its Manager [W]'.
[107] It is apparent in any event that, as at 27 July 2016, W was clearly of the view that [Mr Staffa] continued to act for the Australian Company. In a letter of that date to MH, W refers to [Mr Staffa] as the Australian Company's lawyer. This letter was reviewed and approved by [Mr Staffa].
[108] Further, when [Mr Staffa] wrote to W on 28 July 2016, confirming advice that he had given to W verbally, he included the paragraph:
I advised you not to meet with [WM] on your own. I suggested that you immediately write to [MH] informing him that you will only meet with [WM] in company with [the Australian Company's] legal advisor (meaning me).
[109] In a letter from [Mr Staffa] to WM dated 28 July 2016, [Mr Staffa] said that '[W] has asked that I be present at any meeting he has with you to resolve the matter, given that I have been acting as legal advisor to [the Australian Company] for many years'.
[110]The Tribunal notes that, in WM's response to [Mr Staffa] dated 29 July 2016, WM pointed out to [Mr Staffa], amongst other things, that 'it would be a serious conflict of interest for you to attempt to represent [W's] personal interests, over those of [the Australian Company]'. He goes on to say that '[a]s you are an advisor to [the Australian Company], and not [W], there is no need for any agreement to be reached with you in respect of the terms of the meeting with [W] …'.
[111]There is no evidence as to whether [Mr Staffa] replied to that letter. However, it is apparent that [Mr Staffa] considered the terms of that letter, because, in the Committee's book at page 178, there is a copy of an email sent by [Mr Staffa] on 30 July 2016 to a Mr Cameron Clifton bearing the title 'Employment Law' in the following terms:
Hi Cameron
Do you do employment law?
I have one that I have a conflict on.
Regards
[112] The Committee says that [Mr Staffa] was an argumentative witness and counsel for [Mr Staffa] agreed. The inconsistencies between [Mr Staffa's] evidence in his written submissions, in his witness statement and under cross-examination may be explained at least in part by this. However, whatever the reason, [Mr Staffa's] evidence on the point of whether he was acting for the Australian Company during the relevant period in July 2016 is certainly inconsistent. It was [Mr Staffa's] oral testimony that at the relevant time he was acting for the Australian Company through its managing director. This is in contrast to what [Mr Staffa] said in his written submissions and inconsistent with what he said under cross-examination when he told the Tribunal that he now believed that he was acting, during the relevant time, for W alone and not for the Australian Company. It is also inconsistent with what [Mr Staffa] said in his witness statement, namely that 'I did not hear from [the other director of the Australian Company or HB] during the period relevant to the complaints against me. My instructions concerning [W] and his employment matters were never withdrawn'. There was a further inconsistency when [Mr Staffa], under cross-examination, in response to the question '… as at 26 July you considered that you were the lawyer only for [the Australian Company]', said 'I was engaged by [the Australian Company]. He had already told the Tribunal that '[t]here was no other lawyer acting for the [Australian Company]'.
[113] Some of [Mr Staffa's] other answers under cross-examination show that it was [Mr Staffa's] clear understanding that W was instructing him both in W's personal capacity and in W's capacity as managing director (and subsequently manager) of the Australian Company.
[114] The Tribunal agrees with the Committee that, in the words of counsel for the Committee, there is 'no neat divide before and after 28 June 2016'. [Mr Staffa] had been acting for the Australian Company for a number of years (since 2012) and, up to 28 June 2016, he was providing advice to the Australian Company through W on employment issues. That is not in contest. When [Mr Staffa] received written instructions from W on 8 July 2016, it was clear from the express terms of W's email and the nature of the advice being sought that [Mr Staffa] was being asked by W for advice on W's personal behalf rather than on behalf of the Australian Company. The Tribunal has already accepted that [Mr Staffa] was not expressly asked by the Australian Company for further advice about employment matters after 28 June 2016. However, [Mr Staffa] on his own admission says that he believed at that time that he was still acting for the Australian Company. The fact that he now takes the view that he was not acting for the Australian Company does not assist him. At the time when he took instructions from W as an individual, he considered that he was acting for the Australian Company on the same matter.
[115] The Tribunal concludes that, on the balance of probabilities, and with the comments of Dixon J in Briginshaw in mind, it is more likely than not that during the relevant period [Mr Staffa] was acting for both the Australian Company and W in respect of the same or related matters, namely W's rights and entitlements in relation to the termination or purported termination of his employment by the Australian Company. (Original emphasis)
In its conduct reasons, the Tribunal also addressed the potential application of the Legal Profession Conduct Rules r 14(3). The relevant paragraphs are reproduced below:
[116] Even though [Mr Staffa] before the Tribunal denied that he was acting for the Australian Company from and after 8 July 2016, he also argued before the Tribunal, presumably, although not expressly, in reliance on the exception in r 14(3) of the [Legal Profession Conduct Rules], that he had full and unqualified consent of the Australian Company and the German Company to act in a position of conflict between W and the Australian Company in any situation and that he was to prefer the interests of W. W 'was the one person they could not live without'. When asked whether he understood that 'a lawyer who wishes to act in a position of concurrent conflicts must obtain the fully informed consent of both parties to the conflict', he replied '[y]es, and as far as I was concerned, I had it'.
[117] For r 14(3) of the [Legal Profession Conduct Rules] to apply, an information barrier needs to have been established to protect the confidential information of each client. There is no evidence of any such information barrier having been established. In any event, even if [Mr Staffa] had the consent of the Australian Company on an ongoing basis to act for both W and the Australian Company, it is the Tribunal's view that that consent would no longer apply in circumstances where W had been or was about to be removed as both a director of the Australian Company and its manager. Further, even if the Australian Company had consented to its lawyer acting for another party, this could not be described as an informed consent, because the Australian Company was entirely unaware that [Mr Staffa] was acting for W in his personal capacity.
[118] The Tribunal concludes that [Mr Staffa] had not obtained the informed consent of the parties. (references omitted)
After making observations as to the obligations of a legal practitioner at [119] and [120], the Tribunal's characterisation of Mr Staffa's conduct was recorded at [121] to [125] of its conduct reasons. The observations and findings of the Tribunal are reproduced below:
[119] The appointment of a solicitor by a client creates a fiduciary relationship between them. As the fiduciary, the solicitor is required to employ his knowledge, skill and expertise exhaustively in the interests of his client. That obligation was described by the Full Court of the Federal Court in Commonwealth Bank of Australia and Anor v Smith and Anor 42 FCR 390; (1991) 102 ALR 453 at 477 as follows:
Not only must the fiduciary avoid, without informed consent, placing himself in a position of conflict between duty and personal interest, but he must eschew conflicting engagements. The reason is that, by reason of the multiple engagements, the fiduciary may be unable to discharge adequately the one without conflicting with his obligation in the other.
[120]In Blackwell v Barroile Pty Ltd and Ors 51 FCR 347; (1994) 123 ALR 81 at 93, the Full Court of the Federal Court said that the obligation of a legal practitioner:
to provide a client with professional advice and skill uncompromised by the performance of a like duty to another whose interests conflict with those of the client … is an ethical rule of long standing which goes to the core of the solicitor-client relationship, the maintenance and protection of which is a matter of public interest reflected in the doctrine of professional privilege. It is central to the preservation of public confidence in the administration of justice.
[121] [Mr Staffa's] conduct represents a clear breach of r 14(2) of the [Legal Profession Conduct Rules].
[122] The [Legal Profession Conduct Rules] are subsidiary legislation as defined in the Interpretation Act 1984 (WA) (Interpretation Act). Accordingly, a reference to 'this Act' in the [Legal Profession Act] includes a reference to the [Legal Profession Conduct Rules] (s 46 of the Interpretation Act). It follows that a contravention of the [Legal Profession Conduct Rules] is conduct capable of constituting unsatisfactory professional conduct or professional misconduct; s 404(a) of the [Legal Profession Act].
[123] The Tribunal considers that [Mr Staffa's] conduct in breach of r 14(2) of the [Legal Profession Conduct Rules] is at least unsatisfactory professional conduct, in that it is conduct 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.
[124]The issue is then whether [Mr Staffa's] unsatisfactory professional conduct involved a substantial failure to reach or maintain a reasonable standard of competence and diligence and is thus professional misconduct.
[125]The Tribunal concludes, and we find, that this conduct is professional misconduct. The conflict was, to use the Committee's words, 'obvious and blatant'. [Mr Staffa] put himself in a position where he could no longer perform his duties to the Australian Company. He knew what it was that W intended to do to protect his claimed entitlements and gave advice in that regard. He was therefore conflicted because he was unable to protect the interests of his client the Australian Company, by at least informing his client the Australian Company of the transfer of funds and advising the Australian Company appropriately, without breaching his duty of confidentiality to his client W. It was, in the Tribunal's view, a substantial failure on his part. (references omitted)
Ground 2
As to ground 2, the Tribunal concluded that Mr Staffa's conduct the subject of the LPCC's second allegation amounted to unsatisfactory professional conduct for the reasons reproduced below:
[126] [Mr Staffa] acknowledges, and the Tribunal finds, that it was inappropriate conduct on his part to cause [Legal Success] to render bills to the Australian Company on 15 July 2016 and 22 July 2016 respectively.
[127] [Mr Staffa] accepts that it is clear that W had asked him to bill him personally for the advice and that it was an error on the part of [Mr Staffa] to bill the Australian Company instead. [Mr Staffa] says that the invoices should have been sent to W 'because there's no reason not to'. In [Mr Staffa's] witness statement, by way of explanation he says that, at that time, he 'did not see [W's] request' and in any event regarded the Australian Company as his client. He 'did not have any reason not to invoice [W], instead of [the Australian Company]'.
[128] The Tribunal does not, however, accept [Mr Staffa's] claim that this conduct should be regarded as no more than simply an error on his part. We agree with the Committee's submission that [Mr Staffa's] conduct under Ground 2 must be seen in the context that [Mr Staffa] had in fact been asked, clearly and expressly, by W to bill him personally and that [Mr Staffa] was aware that at the relevant time W, while an employee of the Australian Company, was no longer a director. The description of the work carried out, contained in the two invoices, makes it clear that the relevant work being billed for was in respect of advice about W's termination of employment. It was more than a simple error and the Tribunal finds that it was careless of [Mr Staffa] to bill the Australian Company for that work.
[129] The Tribunal does, however, accept [Mr Staffa's] concession that his conduct should be characterised as unsatisfactory professional conduct rather than professional misconduct. The Tribunal finds that the conduct falls short, but not substantially short, of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. The Tribunal finds that [Mr Staffa's] conduct under Ground 2 is unsatisfactory professional conduct. (references omitted)
Ground 3
As to ground 3, the Tribunal concluded that Mr Staffa's conduct the subject of the LPCC's third allegation amounted to professional misconduct for the reasons reproduced below:
[131] [Mr Staffa] accepts that on 22 July 2016, he advised W to transfer money to cover his entitlements from the Australian Company's account to an account controlled by him.
[132] [Mr Staffa] further accepts that, as a 'fairly basic proposition', the fact that a person might be owed money by a third party does not of itself give that person a legal interest in funds or assets of that third party. Inexplicably though, [Mr Staffa] did not, and does not, accept the proposition that W had no authority to transfer those funds.
[133] The Tribunal accepts that it may have been W who first proposed that such a transfer be made, but the Tribunal also accepts W's evidence that the transfer was not 'a course of action I was prepared to take unless on [Mr Staffa's] advice'.
[134] We note [Mr Staffa's] assertion that, at the time of the advice, [Mr Staffa] may not have been aware of the precise amount of W's entitlement. However, this does not affect the outcome of the Tribunal's deliberations on Ground 3.
[135] We do not accept [Mr Staffa's] submission at para 33(b) of [Mr Staffa's] amended statement that [Mr Staffa] merely 'agreed' with the proposal to transfer the funds. In his written advice to W dated 22 July 2016, [Mr Staffa] clearly told W that he saw no option for W but 'to take proactive steps to protect your entitlements'. He advised W to immediately transfer the full amount of his employment entitlements into a bank account controlled by W. The Tribunal does not characterise that advice as merely 'agreeing' with W's proposed action if, indeed, it was W who proposed the action in the first place.
[136] As the Committee has pointed out, it is not the case that W had no alternative, in order to protect any right he may have to receive money from the Australian Company, other than to make that transfer to his own account. The Tribunal considers that it was entirely open to W to apply to the Supreme Court for a freezing order which, in the Tribunal's view, would have been the preferable approach. [Mr Staffa's] evidence in that regard was that he had in fact 'fleetingly' considered the possibility of applying for a freezing order but thought that 'there was another way that was preferable'. He said that his reservation about the approach of applying for a freezing order was that he would have difficulty effecting service and he had some doubt as to whether the order would be made ex-parte. A little later, he told the Tribunal that his concerns were 'Time, cost. Just time and cost'.
[137] In contrast to this evidence, he told the Committee in response to its enquiry that he 'was not in a position to consider alternatives to secure the funds'. That was, of course, in the context of [Mr Staffa] then maintaining that W had already transferred the funds at the time when he sought [Mr Staffa's] advice but, nonetheless, it still highlights [Mr Staffa's] inconsistencies in his account of his conduct.
[138] The Tribunal does not consider that [Mr Staffa] applied his mind at all to the issue beyond the advice to transfer the money to another bank account.
[139] [Mr Staffa] concedes that his advice was negligent, but considers that his conduct should be characterised as unsatisfactory professional conduct rather than professional misconduct.
[140] The Tribunal does not agree. [Mr Staffa] gave advice to W to the effect that W should transfer money, which did not belong to him and in which he had no interest, to an account in the sole name of W. Even if it had been established that W was owed that money by the Australian Company (which it had not), it was entirely inappropriate to advise W to take that money.
[141] There is no relevant conduct rule, nor was any evidence led as to what the legal profession considers to be the relevant standard to be observed. However, in the Tribunal's view, derived from the Tribunal Members' own knowledge and experience, [Mr Staffa's] conduct, in giving that advice to W, is conduct that could be reasonably regarded as disgraceful and which, to a substantial degree, falls short of the standard of professional conduct observed or approved by members of the legal profession of good repute and competence. The Tribunal concludes that [Mr Staffa's] conduct constitutes professional misconduct under the [Legal Profession Act].
[142] The Committee has also alleged that [Mr Staffa's] advice exposed W to the possibility of being charged with the offence of stealing contrary to s 378 of the Criminal Code. However, the Tribunal does not accept the Committee's submission that the Tribunal should find that by giving that advice to W, [Mr Staffa] was putting W at risk of being charged with an offence under the Criminal Code. A finding of that nature is beyond the jurisdiction of the Tribunal to make and in any event would be entirely speculative. (references omitted)
Ground 4
As to ground 4, the Tribunal concluded that Mr Staffa's conduct the subject of the LPCC's fourth allegation amounted to professional misconduct for the reasons reproduced below:
[143] The allegation made by the Committee is that, in [Mr Staffa's] correspondence to the Committee dated 2 May 2017, 5 March 2018 and 27 April 2018 respectively, he was not open and candid in his dealings with the Committee, in breach of the [Legal Profession Conduct Rules].
[144] Rule 50(3)(b) of the [Legal Profession Conduct Rules] requires that, when a legal practitioner is requested by the Committee to provide comments or information in relation to that practitioner's conduct or professional behaviour, that practitioner must provide a full and accurate account of his or her conduct in relation to the matters covered by the request.
[145] The Tribunal has found that the Committee wrote to [Mr Staffa] on 10 April 2017 advising [Mr Staffa] that the Committee was investigating a complaint made in respect of [Mr Staffa's] conduct and asking that [Mr Staffa] provide his entire original file and all documents relating to the matter under investigation.
[146] [Mr Staffa] on 2 May 2017 provided the Committee with certain documents, along with a table of comments in respect to those documents. He said specifically that the Committee was mistaken to state that [Mr Staffa] had advised W to transfer an amount of $378,000 from the Australian Company's account to W's account and said that 'that decision was made by [W]'.
[147] [Mr Staffa], in his table of comments where he refers to the letter from [Mr Staffa] to W of 27 July 2016, notes that he had expressly stated that it was W's idea to put money from the Australian Company into a holding account and that 'this had been done without any input from me'.
[148] [Mr Staffa] then responded to the Committee on 5 March 2018, suggesting that the Committee approach W for whatever information it was seeking. He repeated this suggestion in his letter to the Committee on 27 April 2018. He said in that letter that 'it is a simple matter for the Committee to ask [W] whether or not he transferred the funds before seeking advice from [Mr Staffa]'.
[149] [Mr Staffa] continued to maintain that he did not advise W to transfer money 'from any account or to any account'. [Mr Staffa], however, agreed that he did 'subsequently tell [W] that in the peculiar circumstances that appertained he was probably justified in doing so'.
[150] [Mr Staffa] has admitted that his statement to the Committee that it was W's idea to put money from the Australian Company into a holding account, without any input from [Mr Staffa], was incorrect.
[151] The Tribunal finds that this part of Ground 4 is made out. [Mr Staffa] did advise W to transfer that money to another account and so his statement to the Committee that he did not do so was false. The issue for the Tribunal is therefore whether or not the Committee has established as true its allegation that [Mr Staffa], in contravention of r 50 of the [Legal Profession Conduct Rules], knew that this statement was false or misleading, or both, in a material respect and that it had the potential to mislead the Committee and that [Mr Staffa] intended that the Committee be misled.
[152] [Mr Staffa] accepted in cross-examination that his statements to the Committee that he had not given such advice to W or that W had transferred the funds before seeking advice from [Mr Staffa] were wrong or incorrect and therefore false.
[153] [Mr Staffa] told the Tribunal that he met with W on 22 July 2016 and W raised the possibility of paying money out of the Australian Company's account into an account controlled by him.
[154] [Mr Staffa] accepted that in his letter of 22 July 2016 his advice to W was that it was appropriate for W to transfer the money in the way proposed. He agreed that there was nothing in that letter to suggest that W had already transferred that money before seeking [Mr Staffa's] advice.
[155] [Mr Staffa] agreed that he considered that it was a matter of some importance that W transfer the money as soon as possible. He also agreed that he knew W was waiting for [Mr Staffa's] written advice before he effected the transfer. [Mr Staffa] conceded that if W had in fact come to him and told him that he had already transferred the funds before obtaining [Mr Staffa's] advice, [Mr Staffa] would not have given advice in those terms.
[156][Mr Staffa] also concedes that he approved the proposed letter from W to WM of 27 July 2016, which contained the statement that W had acted upon legal advice, and that [Mr Staffa] would not have approved that letter in those terms if he had thought that this was not the case.
[157][Mr Staffa] said that he had 'readily agreed' that it was appropriate for W to transfer the funds into a holding account.
[158]From this, the Tribunal concludes that when [Mr Staffa] wrote to the Committee on 2 May 2017, he did not hold the view that W had transferred the funds before obtaining [Mr Staffa's] advice to do so.
[159]Further, when [Mr Staffa] was asked by the Committee about his possible failure to consider other alternatives to achieve W's purpose, such as a freezing order, [Mr Staffa] told the Committee that he was not in a position to consider such alternatives. This was on the basis that the decision to transfer the funds was a decision of W's, which the Tribunal has rejected, and it is also inconsistent with [Mr Staffa's] evidence that he had in fact considered the possibility of applying for a freezing order but that it presented difficulties.
[160][Mr Staffa] conceded that what he said to the Committee 'could have been worded better'.
[161]Before the Tribunal, [Mr Staffa] referred to his statement that the Committee was mistaken to state that [Mr Staffa] had advised W to transfer an amount of $378,000 from the Australian Company's account. [Mr Staffa] explained that the Committee was mistaken to state that he had advised W to transfer that amount, on the basis that he had never advised W to transfer that particular amount of money. It is readily apparent from a reading of the Committee's enquiry that the particular amount of money involved was not the issue which the Committee wished [Mr Staffa] to address.
[162] [Mr Staffa] stated that his response may be open to some misinterpretation. That explanation is disingenuous. Further, in the Tribunal's view, [Mr Staffa's] response was a deliberate attempt to mislead the Committee and to cover up the true state of affairs, which was that [Mr Staffa] had advised W to transfer money, of whatever amount, belonging to the Australian Company to an account controlled by W to protect W's personal interests. When [Mr Staffa] considered what he was being asked about by the Committee, he could not in any circumstances have believed that the Committee's concern was the actual figure involved.
[163] The Tribunal notes that in the table of comments beside the entry identifying the letter of 22 July 2016, [Mr Staffa] wrote 'no comment'. That would, in fact, have been the opportunity for [Mr Staffa] to provide whatever explanation he considered appropriate in order to deal with the Committee's investigation.
[164] The Tribunal can only conclude that [Mr Staffa] knew the true position, as he conceded and thus misled the Committee. Such conduct brings the profession into disrepute and is below the standard of practice which members of the public and the legal profession can expect from a legal practitioner.
[165] As to [Mr Staffa's] suggestion that the Committee take the matter up with W direct, this is not in the Tribunal's view how [Mr Staffa] should have dealt with the Committee's enquiries. Of course, it would have been, and was, open to the Committee to make enquires of W but the Committee was seeking [Mr Staffa's] own explanation, not that of W. This in the Tribunal's view demonstrates a failure by [Mr Staffa] to appreciate his obligations to the Committee under the [Legal Profession Conduct Rules] and generally.
[166] The Tribunal concludes that [Mr Staffa] knew that his statement to the Committee was false and that he intended to mislead the Committee. We repeat what the Tribunal said in Legal Profession Complaints Committee and Lee-Steere [2010] WASAT 189 at [24], namely that 'it is unacceptable, both to members of the public and to the profession, for a practitioner to undermine the authority of a regulatory body by ignoring its requests for information or failing to respond to those requests with alacrity and with complete honesty. To flaunt that authority is to fly in the face of the legislative intent and disables the body from executing its statutory functions. Such conduct is viewed by this Tribunal in a most serious light and will not be countenanced'.
[167] It follows that [Mr Staffa] is guilty of professional misconduct. (references omitted)
Penalty and costs
On 4 November 2020 the Tribunal, differently constituted, heard the parties as to penalty and costs. Ultimately, the Tribunal determined that a report would be made and transmitted to this court in respect of the findings in relation to grounds 1 to 4 with a recommendation that Mr Staffa's name be removed from the roll of practitioners; that his local practicing certificate should be suspended; and that he pay the LPCC's costs fixed in the sum of $58,000.
In its penalty reasons, the Tribunal summarised the principles to be applied in determining the appropriate disciplinary sanction, which are well settled and not in issue as between the parties.[26]
[26] Penalty reasons [11] - [13], [15].
Among other things, the Tribunal uncontroversially noted that it is not necessarily the case that every incident of professional misconduct involving misleading a court will result in the striking off of the practitioner;[27] and further that a finding that a practitioner had deliberately misled a court raises serious questions about that practitioner's fitness to practice and must attract a significant penalty.[28]
[27] Penalty reasons [13], citing Legal Profession Complaints Committee v Love [2014] WASC 389.
[28] Penalty reasons [13], citing Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 [70].
As to a finding which involved misleading the LPCC, at [14] of the penalty reasons, the Tribunal's view was recorded as follows:
In the Tribunal's view, misleading, or acting with the intention of misleading the Legal Profession Complaints Committee is to be viewed as seriously as is misleading, or acting with the intention of misleading a client, court or Tribunal. The Legal Profession Complaints Committee performs an important role in ensuring the regulation of legal practitioners, which is the purpose of the [Legal Profession Act], pursuant to which the Legal Profession Complaints Committee is established. Unless practitioners' duties of honesty and candour to the Legal Profession Complaints Committee is regarded in that way, its ability to effectively regulate the profession is undermined. (Footnotes omitted)
As to the appropriate penalty orders, in summary, the Tribunal concluded that while it had real concerns as to Mr Staffa's competence, it was of the view that the failings identified in grounds 1, 2 and 3 could have been dealt with by way of a disciplinary outcome less than a referral to the Supreme Court (full bench).[29] The Tribunal recorded that had the failings identified in grounds 1, 2 and 3 been the only matters involved, the Tribunal would have been satisfied that a period of suspension from practice would have achieved the object of the protection of the public through the maintenance of the standards of the profession and appropriately mark the seriousness of that conduct.[30]
[29] Penalty reasons [33].
[30] Penalty reasons [34].
However, when taken together with the professional misconduct found in relation to ground 4, the Tribunal concluded that the appropriate disciplinary outcome was that all of those matters should be dealt with by the making of a report and its referral to the Supreme Court (full bench) with a recommendation that Mr Staffa's name be removed from the roll of practitioners.[31] The Tribunal's reasoning was set out at [37] to [46] of its penalty reasons, which are reproduced below:
[31] Penalty reasons [35].
[37]In respect of Ground 4, [Mr Staffa] was found to have engaged in professional misconduct by failing to be open and candid in his dealings with the Legal Profession Complaints Committee.
[38]The Tribunal found that during the course of its investigation into a complaint made in respect of [Mr Staffa's] conduct, the Legal Profession Complaints Committee wrote to [Mr Staffa] and asked him whether he had given advice to W to transfer $378,000 from the Australian Company's account to W's account and that [Mr Staffa] had responded saying that the Legal Profession Complaints Committee was mistaken that he had given advice to W to transfer $378,000 from the Australian Company's account to W's account. In his evidence before the Tribunal [Mr Staffa] endeavoured to explain that response by claiming that he misunderstood the Legal Profession Complaints Committee's question and that he was responding to it that he had not given advice to transfer the specific sum of money referred to in their correspondence rather than his response being a denial of having given advice to transfer any funds from the Australian Company's account to W's account. The Practitioner's evidence was that his answer was not, therefore, intended to mislead the Committee.
[39]In its findings the Tribunal rejected [Mr Staffa's] explanation for his response, finding that [Mr Staffa's] evidence was disingenuous, that [Mr Staffa] knew the response was false and that, in giving it, he intended to and did mislead the Committee.
[40] From those findings the Tribunal now concludes that [Mr Staffa's] disingenuous explanation for the answer given by him to the Committee which he gave in evidence before the Tribunal was demonstrative of:
(i) a further attempt to evade the consequence of his wrongful conduct; and
(ii) a lack of remorse for the misconduct.
[41] Further, the Tribunal has had regard to the fact that [Mr Staffa] has not returned to the Australian Company the fees which it paid to him when they should have been paid by W.
[42] In his written submissions dated 22 September 2020, which were drafted and filed by [Mr Staffa] himself, and so must be regarded as reflective of his own thinking, [Mr Staffa] contends that it is relevant to the penalty proceedings that no complaint was made by any client or the shareholders of the company about the inadvertent error in issuing the invoices and neither W nor the Australian company has sought reimbursement of any of the fees.
[43] While those matters are relevant to the Tribunal's considerations, in the Tribunal's view, once his billing error was known to him, [Mr Staffa] ought at least to have offered to refund the fees to the Australian company. From an ethical point of view [Mr Staffa's] should not be entitled to adopt the position that he can simply retain the money unless the Australian company is proactive in asking for it back. The Tribunal considers that this attitude shows a lack of appreciation for his wrongdoing and is also demonstrative of a lack of remorse.
[44]In circumstances where:
(a)[Mr Staffa] was not candid in his response to the Legal Profession Complaints Committee of 2 May 2017;
(b)was disingenuous in his evidence before the Tribunal in an effort to explain away his original answer to the Legal Profession Complaints Committee;
(c)was a very experienced practitioner;
(d)because of his disciplinary history, he could be expected to be aware of his obligations to the Committee, which he did not meet when he failed to be candid in his answers to their questions, answered 'no comment' in part of his response to their inquiry and suggested that they could ask W directly for answers rather than asking him;
(e)his professional misconduct and unsatisfactory professional conduct, although all related to essentially one matter, persisted over a period of time and is therefore unable to be regarded as a one off event; and
(f)[Mr Staffa] has not demonstrated insight or remorse,
the Tribunal finds that [Mr Staffa's] conduct encompassed in Ground 4 was incompatible with the characteristics of honesty and integrity that are required for the maintenance of proper standards of the profession.
[45]That is the case notwithstanding:
(a)[Mr Staffa's] stated intention to retire from practice on 30 June 2021;
(b)that [Mr Staffa] is not taking any new instructions and is currently acting only on the four matters …;
(c)[Mr Staffa's] prior good standing in the profession; and
(d)[Mr Staffa's] favourable personal antecedents.
[46]The Tribunal finds that [Mr Staffa's] conduct in relation to Ground 4, which goes to his character, means that those who would deal with him in the law cannot be assured that he will act with integrity at all times. The Tribunal finds that that is not the kind of concern that could be remedied during a period of suspension. In that circumstance the Tribunal concludes that the maintenance of proper standards of the profession and the protection of the public necessitates that it exercise the discretion reposed in it under s 438(2)(a) to make and transmit a report on the findings to the Supreme Court (full bench) with a recommendation that his name be struck from the roll of practitioners. (Footnotes omitted)
Although the LPCC originally sought an order that Mr Staffa pay its costs in a higher sum, an agreement was reached between the parties such that the parties in the end consented to the making of an order compelling Mr Staffa to pay the LPCC's costs of the proceeding before the Tribunal fixed in the sum of $58,000. As the Tribunal was satisfied that the sum agreed was reasonable, an order fixing costs in the agreed amount was made.[32]
[32] Penalty reasons [54] - [55].
The source of the power to remove a practitioner's name from the Supreme Court roll
The Tribunal's order made on 15 December 2020 (as varied by the Court of Appeal), that a report be transmitted and a recommendation be made to this court, was made under the Legal Profession Act. By the time Mr Staffa's appeal was determined and the Tribunal's letter dated 14 December 2023 was sent (under cover of which the Tribunal's report was transmitted and its recommendation was made), the Legal Profession Uniform Law Application Act 2022 (WA) had come into effect.
The Legal Profession Uniform Law Application Act repealed the Legal Profession Act as of the 'commencement day',[33] and implemented, as a law of Western Australia, the Legal Profession Uniform Law as of the 'commencement day'. The commencement day was 1 July 2022.[34]
[33] Legal Profession Uniform Law Application Act s 260(a).
[34] 'Commencement day' is defined in s 7 of the Legal Profession Uniform Law Application Act as the day on which that section comes into operation. Section 7 is contained within pt 2 of the Legal Profession Uniform Law Application Act. Section 2 of the Legal Profession Uniform Law Application Act provides that all Parts of that Act, other than pt 1, came into effect on a day fixed by proclamation, which date was on 1 July 2022 as confirmed by the Compilation Table at page 224 of the Legal Profession Uniform Law Application Act.
Among other things, pt 16 of the Legal Profession Uniform Law Application Act provides for savings and transitional provisions in addition to those in pt 1 and pt 2 of sch 4 of the Legal Profession Uniform Law Application Act.[35] Relevantly, div 11 of pt 16 of the Legal Profession Uniform Law Application Act concerns registers and transitional provision is made for the roll of practitioners previously maintained by the Supreme Court under s 28(1) of the Legal Profession Act.
[35] Legal Profession Uniform Law Application Act s 263(b).
Section 322 of the Legal Profession Uniform Law Application Act provides that the roll of practitioners previously maintained by the Supreme Court under s 28(1) of the Legal Profession Act continues on and from the commencement day as the Supreme Court roll under s 22(1) of the Legal Profession Uniform Law.
Section 22(1) of the Legal Profession Uniform Law provides that this court must maintain a roll of Australian lawyers - the Supreme Court roll - for this jurisdiction containing the names and relevant particulars of persons admitted by the court.
Section 23(1) of the Legal Profession Uniform Law provides that this court may order the removal of the name and other particulars of a person from the Supreme Court roll on, among other things, the recommendation of 'the designated tribunal'. In this State 'the designated tribunal' is the State Administrative Tribunal.[36] Section 23(1) of the Legal Profession Uniform Law therefore confers power on the court to remove the respondent's name from the Supreme Court roll.
[36] Legal Profession Uniform Law Application Act s 22.
Applicable principles
The approach to be taken by this court
The principles to be applied in an application to remove a practitioner from the roll are well established. In the disposition of this application, the court did not understand there to be any controversy as to the approach to be taken.
As was observed in Legal Profession Complaints Committee v Oud [2019] WASC 287 at [17],[37] the principles include the following:
(a)The court's jurisdiction with respect to the regulation of the legal profession is not to be exercised for the purpose of punishing the practitioner concerned, but for the protection of the public and the maintenance of the reputation and standards of the legal profession;
(b)Where the motion is to remove a practitioner from the roll, the critical question for the court is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner;
(c)Fitness to practice law requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges;
(d)Removal from the roll is an order reserved for very serious cases, where the character and conduct of the practitioner is seen to be inconsistent with the privileges of further practice;
(e)Integrity and honesty are essential characteristics expected of a practitioner, and therefore, the court has generally taken a very serious approach when dealing with dishonesty by a practitioner.
[37] In Legal Profession Complaints Committee v Oud the court referred to Legal Profession Complaints Committee v Brickhill [2013] WASC 369 [18] ‑ [21] and Legal Profession Complaints Committee v Waters [2015] WASC 141 [7] ‑ [8].
As to findings of dishonesty, in Legal Profession Complaints Committee v Oud at [18] it was further noted that courts have repeatedly recognised the particular significance of a finding that a practitioner has intentionally misled a court, being a matter of utmost seriousness, and one which raises serious questions as to the practitioner's fitness to practice.[38]
[38] In Legal Profession Complaints Committee v Oud the court at [18] referred to the decisions of this court in Legal Profession Complaints Committee v Waters [8].
In the disposition of this application, this court also proceeded cognisant of the following.
First, an important object of the disciplinary function is to maintain and protect the reputation of the legal profession.[39] Account must be taken by the court of the effect which its order will have on the understanding of both the public and the profession of the standard of behaviour required of legal practitioners.[40]
[39] Legal Profession Complaints Committee v Lawson [2024] WASC 158 [16], citing Re Maraj (a legal practitioner) (1995) 15 WAR 12, 24 - 25 (Malcolm CJ); Legal Profession Complaints Committee v Brennan [2010] WASC 198 [10] (Martin CJ).
[40] Legal Profession Complaints Committee v Lawson [16], citing Law Society (New South Wales) v Foreman (1994) 34 NSWLR 408, 444F (Mahoney JA).
Secondly, a failure on the part of a practitioner to appreciate the impropriety of their conduct may support a finding of unfitness to practise. A reason for this is that the lack of appreciation of impropriety and the lack of insight increases the risk of recurrence of the improper conduct.[41]
[41] Khosa v Legal Profession Complaints Committee [2017] WASCA 192 [193], as referenced on behalf of the LPCC in the applicant's outline of submissions par 23, footnote 15. See also Legal Profession Complaints Committee v Lawson [17].
Thirdly, an important object of the disciplinary function is to maintain and protect the reputation of the legal profession. Account must also be taken by the court of the effect which its order will have on the understanding by the profession and the public of the standard of behaviour required of legal practitioners.[42]
[42] Legal Profession Complaints Committee v Tang [2022] WASC 204 [18], as referenced on behalf of the LPCC in the applicant's outline of submissions par 24, footnote 16.
Fourthly, the quality most likely to result in striking off is conduct which undermines the trustworthiness of the practitioner, or which suggests that they lack integrity or that they cannot be trusted to deal fairly within the system in which they practise.[43] A willingness to engage in dishonest behaviour is therefore of central relevance to an assessment of the practitioner's fitness to practice.[44]
Conclusiveness
[43] Barristers' Board v Darveniza (2000) 112 A Crim R 438 [33], cited in Legal Profession Complaints Committee v Brickhill [21], and Legal Practitioners Complaints Committee v Palumbo [2005] WASCA 129 [23], as referenced on behalf of the LPCC in the applicant's outline of submissions par 25, footnote 17.
[44] Legal Profession Complaints Committee v Bower [2019] WASC 281 [38(d)], as referenced on behalf of the LPCC in the applicant's outline of submissions par 25, footnote 18.
In the course of the hearing, the conclusiveness of the report of the Tribunal was canvassed, given that the application had been made in the following context:
(a)as noted above, the order made by the Tribunal on 15 December 2020 (as was varied by order of the Court of Appeal in July 2022), that a report be transmitted and a recommendation be made to this court, was an order made under the Legal Profession Act;
(b)in December 2023 the Tribunal made a report to this court pursuant to s 438(2)(a) and s 438(4)(a) and (b) of the Legal Profession Act;
(c)by operation of s 444(1) of the Legal Profession Act, a report to this court pursuant to s 438(2)(a) is to be taken to be conclusive as to all facts and findings mentioned or contained in the report;
(d)the Legal Profession Uniform Law Application Act had repealed the Legal Profession Act before the report was made under cover of a letter dated 14 December 2023 and before application the subject of these reasons was made by originating motion filed on 17 April 2024; and
(e)in the written outline of submissions that were filed on behalf of the LPCC on 4 June 2024, it had been noted that s 444(1) of the Legal Profession Act had not been expressly preserved by the savings and transitional provisions in the Legal Profession Uniform Law Application Act.
In the LPCC's outline of submissions filed in advance of the hearing, the apparent lacuna was noted and it was suggested that it might be answered by s 37(1) of the Interpretation Act 1984 (WA).[45] In contrast, the outline filed on behalf of Mr Staffa did not address the implications of the Legal Profession Act having been repealed, and appeared to have been prepared on the assumption that the findings of the Tribunal were conclusive.[46] At the hearing of the application, counsel for Mr Staffa confirmed that the findings of the Tribunal were not challenged.[47]
[45] Applicant's outline of submissions par 11.
[46] Respondent's outline of submissions, in particular which inference is to be drawn from pars 28 ‑ 30, 33 ‑ 36.
[47] ts 19 (21 October 2024).
In the further outline of submissions filed in advance of the hearing, and also in the course of the hearing, it was observed on behalf of the LPCC that potentially difficult questions arose as to the application of s 444(1) of the Legal Profession Act by virtue of s 37(1) of the Interpretation Act. In circumstances where Mr Staffa did not seek to put in issue any of the Tribunals' findings of fact, it was submitted on behalf of the LPCC that any consideration of the application of s 444(1) of the Legal Profession Act by virtue of s 37(1) of the Interpretation Act should await a case (should it arise) in which the issue is live and requires determination, not where (as was here the case) consideration of the issue would be hypothetical.[48] On behalf of Mr Staffa, it was accepted that this was not a case where it would be necessary or appropriate for this issue to be ruled upon.[49]
[48] ts 16 (21 October 2024); see also applicant's outline of reply submissions par 2.
[49] ts 19 (21 October 2024).
While at first blush it would appear to be contrary to the statutory scheme for this court to do otherwise than to take to be conclusive all facts or findings mentioned or contained in the Tribunal's report, it was not in the end necessary in this case for the court to rule upon the conclusiveness of the findings of the Tribunal given the unequivocal position adopted by the respondent that no challenge was made as to the findings of the Tribunal.[50] On the basis that Mr Staffa did not seek to put in issue any of the Tribunals' findings of fact (or the conclusion of the Court of Appeal), the court considered the LPCC's application in light of the findings of fact made by the Tribunal (as corrected on appeal) and its characterisation of Mr Staffa's conduct as professional misconduct (as to grounds 1, 3 and 4), and unsatisfactory professional conduct (as to ground 2).
[50] ts 19 (21 October 2024).
As reflected in these reasons, the court did so cognisant that the critical question of whether Mr Staffa had been shown not to be a fit and proper person to be a legal practitioner was a question reserved exclusively to the court.[51]
[51] As was accepted by counsel for the LPCC at the hearing of the application: ts 13 - 14 (21 October 2024).
Overview of the submissions made as to the critical question
In summary, it was the position of the LPCC that Mr Staffa's dishonesty and lack of integrity, and the circumstances referred to by the Tribunal at [44] of the penalty reasons (reproduced at [89] above), all pointed to the incompatibility of Mr Staffa remaining on the Supreme Court roll, and accordingly the LPCC moved for an order that Mr Staffa's name to be removed.[52]
[52] Applicant's outline of submissions par 33.
Noting that the critical question is to be determined at the time of the hearing (and not at the time of the misconduct),[53] and that there is an evidentiary onus on a practitioner to show that 'past proved unfitness has been changed to fitness',[54] counsel for the LPCC noted that in this case, Mr Staffa had not sought to:
(a)identify any relevant change in circumstances; or
(b)make or substantiate a claim of rehabilitation or fitness replacing unfitness.
[53] Applicant's outline of responsive submissions in response par 4, citing A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 [21]; Khosa v Legal Profession Complaints Committee [195].
[54] Applicant's outline of responsive submissions in response par 5, citing Johns v Law Society of New South Wales [1982] 2 NSWLR 1, 9 ‑ 10.
As is noted below, Mr Staffa had been retired from legal practice since the beginning of January 2021. It was the LPCC's position that Mr Staffa's retirement from legal practice was not a relevant change in circumstances or otherwise relevant to the appropriate disciplinary outcome.[55] The LPCC also complained that the submissions made on behalf of Mr Staffa sought to downplay the significance of his misconduct and reinforced the conclusion that he still did not appreciate its significance.[56]
[55] Applicant's outline of responsive submissions pars 11 - 12, citing Legal Services and Complaints Committee v Lawson [20].
[56] Applicant's outline of responsive submissions in response par 6.
In summary, on behalf of Mr Staffa it was submitted that his conduct was not as serious as the conduct that the court had considered in the context of other disciplinary proceedings where an order short of a recommendation for removal from the roll of practitioners, or a recommendation for removal from the roll, had been made.
It was also submitted that contrary to the view that had been expressed by the Tribunal at [14] of the penalty reasons (reproduced at [87] above), a practitioner's obligation to the LPCC was not equivalent to that owed by a practitioner to the court, as an officer of the court. Further, it was noted that while Mr Staffa had misled the LPCC, he did not mislead any members of the public.
It was submitted that Mr Staffa's conduct ought properly be distinguished from more serious examples of professional misconduct, as:
(a)Mr Staffa had not made misleading statements intended to mislead the court;
(b)Mr Staffa had been in practice for many years, without any record, or suggestion, of deliberate misleading conduct;
(c)Mr Staffa did not have a history of infractions. Apart from one matter, Mr Staffa had practised for 43 years without any issues;
(d)the events giving rise to the inquiry occurred in relation to one matter over a 21 day period, and in that sense could be viewed as one isolated event over a legal career spanning 43 years;
(e)the relevant events occurred over a short time period in 2016, and from that time and until the order for suspension was made in December 2020 (which took effect in January 2021), Mr Staffa had continued to practice without any issues or problems;
(f)Mr Staffa did not undermine the legal process;
(g)Mr Staffa did not take a client's property, nor did he try to sell confidential information;
(h)Mr Staffa did not deliberately conceal vital facts from the Tribunal or a court, and did not deceive counsel;
(i)Mr Staffa did not try to rely on false affidavits, did not misuse trust funds and did not gauge any clients for fees; and
(j)there was no suggestion the misconduct, and in particular the misleading conduct, was aimed at the advancement of Mr Staffa's financial interests in preference to the interest of those being deceived.
It was also noted that Mr Staffa had been suspended since mid‑January 2021 and had been ordered to pay costs in the amount of $58,000, at a time when he was 71 years of age and on the verge of retirement. It was submitted that that was a significant monetary imposition on a person whose retirement was imminent.
Finally, it was submitted that there was 'no rational or public purpose or benefit in belatedly removing Mr Staffa's name from the roll',[57] which was a submission pressed in circumstances where the conduct complained of had occurred in 2016 and Mr Staffa had been retired from legal practice since the beginning of January 2021.
[57] Respondent's outline of submissions par 36.
Personal circumstances
At [17] of the penalty reasons, the Tribunal recorded its findings as to Mr Staffa's personal circumstances at the time of the hearing before the Tribunal. Summarised below are Mr Staffa's personal circumstances, updated to the extent that more up to date information was referenced by counsel at the hearing of the LPCC's application to this court.
Mr Staffa was 71 years of age when the Tribunal delivered its penalty reasons. He is now 75.[58]
[58] ts 22 (21 October 2024); penalty reasons [17(a)].
Mr Staffa completed his law degree and was admitted to practice on 14 February 1978 and has practised continually since that time.
As noted above, Mr Staffa retired from legal practice in January 2021, having been suspended on 14 January 2021 (by operation of order 2 of the orders made by the Tribunal on 15 December 2020). Mr Staffa has been subject to that suspension for four years.
During his time in practice Mr Staffa was regularly involved in the provision of pro bono legal advice.
He had only had one prior disciplinary proceeding brought against him, which resulted in a finding of unsatisfactory professional conduct being made in 2011.
At the hearing of the LPCC's application to this court, no update as to Mr Staffa's financial position was provided. We note that the Tribunal had recorded at [17(9)] and [17(10)] of the penalty reasons the amount then owed by Mr Staffa, secured by a mortgage over his residence, and the approximate value of his superannuation fund.
On 15 December 2020 Mr Staffa was ordered to pay the LPCC's costs in the amount of $58,000.
Four references were filed with Mr Staffa's submissions to the Tribunal dated 27 October 2020, which were summarised at [18] of the Tribunal's penalty reasons. From those references the Tribunal found that Mr Staffa was regarded by those referees as being hardworking, of good repute and competent in the law.
Disposition
While not the subject of controversy in this application, we record that when regard was had to the evidence before the Tribunal, we held no reservation with respect to the findings made by the Tribunal, nor with respect to the Tribunal's characterisation of Mr Staffa's conduct as:
(a)professional misconduct (as to grounds 1, 3 and 4); and
(b)unsatisfactory professional conduct (as to ground 2).
Having regard to Mr Staffa's conduct, we did not disagree with the Tribunal's conclusion that the failings of Mr Staffa identified in grounds 1, 2 and 3 could have been dealt with by way of a disciplinary outcome less than a referral to the Supreme Court (full bench); and we too considered that if the failings identified in grounds 1, 2 and 3 been the only matters involved, a period of suspension from practice would have achieved the object of the protection of the public through the maintenance of the standards of the profession and appropriately mark the seriousness of that conduct.[59]
[59] Consistent with the findings of the Tribunal in the penalty reasons [34].
The professional misconduct found in relation to ground 4 was the most egregious aspect of Mr Staffa's conduct. The attempt by Mr Staffa to obscure his failings (being the conduct identified in grounds 1, 2 and 3) has had the consequence of exposing Mr Staffa to more serious consequences than the original misdeeds.
The Tribunal's report made plain that Mr Staffa failed to be open and candid in his dealings with the LPCC. As an experienced practitioner, Mr Staffa ought to have known better. We accept that he could be expected to be aware of his obligations to the LPCC, which he did not meet when he failed to be candid in his answers to their questions.
Ultimately, in the disposition of the application, it was not necessary for this court to be drawn on whether a practitioner's obligation to the LPCC is equivalent to that owed by a practitioner to the court, as an officer of the court. It is sufficient to here record that a practitioner who has acted in a manner intended to mislead the LPCC will have engaged in conduct which is incompatible with the characteristics of honesty and integrity that are required for the maintenance of proper standards of the profession.
The fact that Mr Staffa misled the LPCC but not the public (as was noted on his behalf) did not in our view ameliorate the misconduct identified in ground 4. As a statutory committee of the Legal Practice Board, the LPCC serves an important function. It is a very serious matter to mislead the delegate of the regulator of legal services in Western Australia. Further, an attempt to minimise conduct which was intended to mislead the body charged with the responsibility of advancing the administration of justice and protecting the public by regulating the behaviour of legal practitioners in Western Australia, revealed a serious lack of insight.
We accepted that Mr Staffa's professional misconduct and unsatisfactory professional conduct related to essentially one matter. However, we were particularly troubled that by the time Mr Staffa gave evidence before the Tribunal, there had been sufficient opportunity for him to have reflected upon his conduct. Despite the effluxion of time, Mr Staffa did not accept his shortcomings in a manner which revealed insight or remorse, but instead proceeded to give evidence to the Tribunal in a manner which was disingenuous.
In this regard, in his evidence to the Tribunal Mr Staffa sought to explain his earlier accounts to the LPCC. Among other things, the transcript of hearing revealed that:
(a)Mr Staffa reluctantly accepted that his statement to the LPCC that he had not given advice to W to transfer money was wrong;[60]
(b)despite that reluctant acceptance, Mr Staffa also asserted in the course of his evidence that his statement was not false, maintaining that he had told the truth;[61]
(c)Mr Staffa sought to explain the inaccuracy in his correspondence to the LPCC as a product of a clumsily worded communication, which 'could have been probably better written';[62]
(d)Mr Staffa also asserted that he was 'labouring under a misapprehension' which had come about because he had previously been 'under medical treatment' which had affected his mood and memory, without Mr Staffa having sought to adduce any evidence as to that treatment, and in circumstances where Mr Staffa had not raised the impact of medication before the hearing before the Tribunal;[63]
(e)Mr Staffa further maintained that his representation to the LPCC that he had not advised W to transfer the amount of $378,000 from the Australian Company's bank account into a bank account controlled by W was true, as he had not advised W to transfer 'any amount at all, not $1, not $100, not $378,000';[64]
(f)Mr Staffa sought to explain the appropriateness of his focus on quantum when responding to the LPCC. He noted that his answers had been given to the LPCC in circumstances where the LPCC had in its possession various documents provided by Mr Staffa so as to provide context,[65] and only reluctantly acknowledged that his answers to the LPCC when read in isolation did not convey to the reasonable reader that Mr Staffa had given advice to W to transfer funds;[66]
(g)despite his reluctant acknowledgement that his answers to the LPCC when read in isolation did not convey to the reasonable reader that he had given advice to W to transfer funds, Mr Staffa maintained in the course of his evidence that he believed he had answered the question put to him, denied that his answer was misleading, did not accept that he had answered the question in a way that failed to be open and candid, and maintained that he had 'provided a full and accurate account';[67] and
(h)Mr Staffa sought to justify his response of 'no comment' to the LPCC on the basis that 'the letter should speak for itself'.[68]
[60] ts 157 -159 (31 January 2020).
[61] ts 159 (31 January 2020).
[62] ts 160 (31 January 2020).
[63] ts 158 - 159 (31 January 2020).
[64] ts 161, 164 (31 January 2020).
[65] ts 165, 168 (31 January 2020).
[66] ts 169 (31 January 2020).
[67] ts 170 (31 January 2020).
[68] ts 171 (31 January 2020).
The inconsistencies in Mr Staffa's account over time, and his explanation of the same, revealed a lack of candour deliberately deployed.
Mr Staffa approached the LPCC's application to this court by seeking to compare his conduct with those of others, seeking to establish that his conduct was less serious or problematic. While he was entitled to defend the LPCC's application, his approach to the application was not one which demonstrated insight into the findings that have been made.
The court weighed in the balance Mr Staffa's personal circumstances being, most notably, his age; his previous good standing in the profession; his favourable personal antecedents; that he had already been suspended from practice for four years; and that while he had not proffered an undertaking not to practice, he had previously expressed an intention to retire from practice on 30 June 2021.
It was Mr Staffa's position that in all of the circumstances, there would be no rational or public purpose or benefit in belatedly removing his name from the Supreme Court roll.
In considering the appropriate penalty, we also took into account the delay in the making of the application. However, given the critical question, we considered Mr Staffa's personal circumstances in the end to be of limited significance.
We too found that Mr Staffa's conduct in relation to ground 4, which goes to his character, means that those who would deal with him in the law cannot be assured that he will act with integrity at all times. This is not the kind of concern that can be remedied during a period of suspension. It is a very serious matter to mislead the delegate of the regulator of legal services in Western Australia. In this case, the circumstances were more egregious as no real remorse or insight was demonstrated. Mr Staffa's conduct was, in our view, inconsistent with fitness to practice.
Unfortunately for Mr Staffa, his was another case of the cover‑up being worse than the crime. Having regard to the factual background outlined in these reasons, we were satisfied that the order sought by the LPCC should be made. That is, we were satisfied that the LPCC had demonstrated that Mr Staffa is not a fit and proper person to remain a legal practitioner. The aim of protecting the public (which must have faith in the authority of the LPCC) and the objective of enhancing the reputation of the legal profession, would be seriously undermined by permitting the practitioner to continue to act as such.
Undertaking not to practice
For completeness, we note that in the course of the hearing, counsel for Mr Staffa submitted that there would be 'no way [Mr Staffa] will ever be able to go back to practice now in any event, even if he weren't struck off …'.[69] Further, when asked if an undertaking not to practice had been given, counsel indicated that while he did not have express instructions, he was certain that an undertaking could and would be given by Mr Staffa not to practice if requested.
[69] ts 28 (21 October 2024).
At the hearing, it was the LPCC's position that if an undertaking were proffered, it would not be acceptable to the LPCC as an alternative to the removal of Mr Staffa from the roll of practitioners.[70]
[70] ts 33 (21 October 2024).
As was made plain in the course of the hearing, no undertaking has been proffered; it was a matter for Mr Staffa as to whether he would proffer an undertaking; and if an undertaking was proffered, the court would give the LPCC an opportunity to make submissions as to the appropriateness of accepting the same as an alternative to the removal of Mr Staffa from the record.[71]
[71] ts 33 (21 October 2024).
A review of the court file before the delivery of these reasons revealed that no such undertaking had been proffered by Mr Staffa. In the circumstances, it was not necessary to call for further submissions from either party. The issue of the adequacy of an undertaking in the circumstances of this case was not a live one, and we therefore made no findings in that regard.
Conclusion and orders
While the LPCC included reference to s 444(2)(b) of the Legal Profession Act as an alternative power for the removal, we did not understand there to be any necessity to invoke that alternative power.
As to costs, by the application the LPCC moved for an order that Mr Staffa pay the LPCC's costs of the proceeding to be taxed if not agreed. While this court has consistently regarded the costs of the proceeding as part of the costs of regulating the profession,[72] in this case, the LPCC sought to recover its costs and Mr Staffa did not oppose the order sought by the LPCC. In the circumstances, we did not consider there to be any policy reasons for not making a costs order which followed the event, particularly given that the LPCC's application had been opposed.
[72] See for example Legal Practice Board v Elek-Roser [2024] WASC 405 [114]; Legal Profession Complaints Committee v Mugliston [2022] WASC 215 [22]; Legal Profession Complaints Committee v Tang [37]; Legal Profession Complaints Committee v Oud [35]; Legal Profession Complaints Committee v Waters [16]; Legal Profession Complaints Committee v Smith [2014] WASC 458 [15]; Legal Profession Complaints Committee v Dutton [2014] WASC 457 [12]; Legal Profession Complaints Committee v McLean [2012] WASC 297 [16]; Legal Profession Complaints Committee v in de Braekt [2013] WASC 124 [37]; Legal Profession Complaints Committee v Masten [2011] WASC 71 [35]; Legal Profession Complaints Committee v Brennan [19].
For these reasons, orders will be made in the following terms:
1.The name of the respondent, Kevin Colin Benedict Staffa, be removed from the roll of practitioners of this Honourable Court pursuant to section 23(1) of the Legal Profession Uniform Law (WA).
2.The respondent pay the Legal Services and Complaints Committee's costs of the proceeding to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CR
Associate to the Hon Justice Strk
14 JANUARY 2025
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