Metaxas v Legal Profession Complaints Committee
[2020] WASCA 27
•4 MARCH 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: METAXAS -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2020] WASCA 27
CORAM: QUINLAN CJ
MITCHELL JA
PRITCHARD JA
HEARD: 12 AUGUST 2019
DELIVERED : 4 MARCH 2020
PUBLISHED : 4 MARCH 2020
FILE NO/S: CACV 84 of 2018
BETWEEN: ARTHUR METAXAS
Appellant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: PRESIDENT, JUSTICE J C CURTHOYS
SENIOR MEMBER C WALLACE
MR P DE VILLIERS (MEMBER)
Citation: LEGAL PROFESSION COMPLAINTS
COMMITTEE and METAXAS [2018] WASAT 28
File Number : VR 124 of 2017
Catchwords:
Appeal - Legal practitioners - Appeal against finding of professional misconduct - Challenges to various findings of State Administrative Tribunal - Tribunal made no error of law - Finding of 'professional misconduct' open in sufficiently serious cases of careless conduct - Practitioners' obligation to take all necessary steps to ensure a proper factual foundation for submissions - Appeal dismissed
Appeal - Legal practitioners - Appeal against decision quantum of fine imposed by State Administrative Tribunal - Whether fine was manifestly excessive - Turns on own facts - Appeal dismissed
Legislation:
Administrative Tribunal Act 2004 (WA)
Legal Profession Act 2008 (WA)
Legal Profession Conduct Rules 2010 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application for leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | P Cahill SC |
Solicitors:
| Appellant | : | Metaxas Legal |
| Respondent | : | Legal Profession Complaints Committee |
Case(s) referred to in decision(s):
Fidock v Legal Profession Complaints Committee [2013] WASCA 108
Giudice v Legal Profession Complaints Committee [2014] WASCA 115
House v The King [1936] HCA 40; (1936) 55 CLR 499
Huntingdale Village Pty Ltd (Receivers and Managers Appointed) ATF Huntingdale Village Unit Trust v Perpetual Nominees Ltd [No 2] [2014] WASC 217
Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101
Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101 (S)
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Legal Profession Complaints Committee v Detata [2012] WASCA 214
Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331
Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93
Sims v Jooste [2013] WASCA 245
Unioil International Pty Ltd v Deloitte Touche Tohmatsu [No 2] (1997) 18 WAR 190
Table of Contents
Quinlan CJ & Pritchard JA
Introduction
The factual background
The hearing before the Tribunal and preliminary matters
The grounds of appeal
Ground 1 – The correctness of the principle in Huntingdale Village
Ground 2 - The finding at Reasons [50]
Ground 3 - The Associate's Record
Ground 4 - The finding at Reasons [62]
Ground 5 - Finding of misleading
Ground 6 - The finding at Reasons [97]
Ground 7 - The finding at Reasons [100]
Ground 8 - Reasons [104]
Ground 9 - The finding at Reasons [106]
Ground 10 – Remorse and insight
Ground 11 - Appeal from fine of $24,000
Conclusion
Mitchell JA
Summary
The Huntingdale decision
The Tribunal's approach
Conclusion as to ground 1
QUINLAN CJ & PRITCHARD JA:
Introduction
On 26 April 2018, in disciplinary proceedings brought by the Legal Profession Complaints Committee (the Committee), the State Administrative Tribunal (the Tribunal) found that the appellant, Mr Metaxas, had engaged in professional misconduct within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) in relation to his conduct of an application for leave to appeal and an appeal to the Court of Appeal.
The proceedings in relation to which the Tribunal found that the appellant had engaged in professional misconduct were the proceedings in this Court in CACV 79 of 2014. The Court's decision in relation to that appeal, of which much will be said later, is Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda.[1]
[1] Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101 (Huntingdale Village).
On 29 August 2018, the Tribunal ordered, in relation to its finding of professional misconduct, inter alia, that Mr Metaxas pay a fine of $24,000 and pay the Committee's costs of the application.
The appellant seeks to appeal both the finding of professional misconduct and the fine imposed by the Tribunal. Under the State Administrative Tribunal Act 2004 (WA) (SAT Act), the appellant may only appeal against the decision of the Tribunal if this Court gives leave to appeal.[2] An appeal may only be brought on a question of law. The application for leave was referred to the hearing of the appeal.
[2] SAT Act, ss 105(1) and (2).
The factual background
As noted above, the proceedings in relation to which the Tribunal found that the appellant had engaged in professional misconduct were an application for leave to appeal and an appeal to this Court in CACV 79 of 2014.
The Tribunal's finding was that the appellant had engaged in professional misconduct in the following respect:[3]
[I]n that his conduct of an application for leave to appeal and of an appeal to the Court of Appeal substantially or consistently fell short of the standard of competence that a member of the public is entitled to expect of a reasonably competent legal practitioner because Mr Arthur Metaxas failed to take all necessary steps to ensure that there was a proper factual basis for:
(a)a proposed ground of appeal;
(b)oral submissions made to the Court of Appeal in support of the application for leave to appeal and the appeal.
[3] Legal Profession Complaints Committee and Metaxas [2018] WASAT 28 (Reasons) (BAB 85).
The background to that finding was as follows.
On 4 September 2009, Huntingdale Village Pty Ltd (Receivers and Managers appointed) and four related companies (the Westpoint companies) commenced proceedings in the Victorian registry of the Federal Court of Australia against Perpetual Nominees Ltd (Perpetual) and receivers and managers appointed by Perpetual over the Westpoint companies: Mark Anthony Korda, David John Winterbottom and Oren Zohar (the Receivers). The proceedings alleged misconduct against the Receivers. The Federal Court of Australia ordered that the proceedings be transferred to the Supreme Court of Western Australia, where they became action COR 223 of 2009.
On 18 May 2010, the appellant's firm, Metaxas and Hager, took over the conduct of the Westpoint companies' case. The appellant had carriage of the matter from 2010 and throughout the relevant period the subject of the proceedings before the Tribunal.
On 21 and 23 May 2014, Le Miere J heard an application in COR 223 of 2009 brought by the Receivers for orders that the Westpoint companies provide security for the Receivers' costs of defending the proceedings.
The application for security for costs was reserved by Le Miere J on 23 May 2014, subject to certain orders made by his Honour. Those orders contemplated the potential for further submissions consequent on a proposed amendment to the Westpoint companies' statement of claim. The orders, as reflected in the Associate's Record, were in the following terms:[4]
1.The plaintiffs file and serve a further amended statement of claim on or before 20 June 2014 stating, amongst other things, the conduct of the Receivers in regard to which an inquiry should be ordered.
2.The parties have leave to file and serve any affidavits and submissions in relation to the further amended statement of claim on or before 4 July 2014.
3.Each party have leave on or before 11 July 2014 to apply for a further oral hearing of the application for security for costs.
4.If no party applies for a further oral hearing the application for security for costs will be determined without any further oral hearing.
[4] Reasons [56].
The Tribunal found that these orders were predicated on a further amended statement of claim being filed and served on or before 20 June 2014.[5]
[5] Reasons [118(b)]. The reasons at [118(b)] incorrectly refer to the date 26 June 2014. It is clear from the Reasons as a whole that it should be a reference to 20 June 2014.
No amendment to the statement of claim was made in the time required by those orders (i.e. 20 June 2014). The parties were advised on that day that Le Miere J would be delivering his reserved decision on 26 June 2014.[6] At the appellant's request, the date for the delivery of the reserved decision was changed to 2 July 2014.
[6] Reasons [60].
On 2 July 2014, Le Miere J allowed the Receivers' application for security for costs and ordered that the Westpoint companies provide $150,000 by way of security for costs (up to the close of pleadings).[7]
[7] Huntingdale Village Pty Ltd (Receivers and Managers Appointed) ATF Huntingdale Village Unit Trust v Perpetual Nominees Ltd [No 2] [2014] WASC 217.
On 15 July 2014, the appellant filed, on behalf of the Westpoint companies, a notice of appeal and application for leave to appeal Le Miere J's decision (i.e. CACV 79 of 2014). By about 22 July 2014, the appellant had prepared the Appellants' Case in CACV 79 of 2014, including the proposed grounds of appeal.
The proposed grounds of appeal in CACV 79 of 2014 included ground 2, which provided as follows:
The learned Judge erred in law in depriving the appellants of a right to be heard and denying the appellants procedural fairness insofar as:
2.1after part hearing the Application on 21 May 2014 his Honour ordered that:
(a)the appellants file and serve a further amended statement of claim by 20 June 2014;
(b)the appellants and the receivers have leave to file and serve any affidavits and submissions in relation to the further amended statement of claim by 4 July 2014;
(c)each of the appellants and the receivers have leave until 11 July 2014 to apply for a further oral hearing of the Application;
(d)if neither the appellants nor the receivers applied for a further oral hearing then the Application would be determined without any further oral hearing.
2.2on 24 June 2014 [sic] the appellants filed and served a second further re-amended statement of claim;
2.3on 2 July 2014, without prior notice to the appellants, His Honour published reasons for decision on the Application, made orders requiring the appellants to pay security for the receivers [sic] costs and vacated the orders made 21 May 2014 in 2.1(b), (c) and (d) above;
2.4no reasons were given for the variation of the orders made on 21 May 2014; and
2.5the appellants were denied the opportunity to adduce additional evidence in support of their submissions that the receivers had caused the appellants impecuniosity.
Ground 2 is the proposed ground referred to in the Tribunal's finding, set out at [6] above. The oral submissions referred to in that finding are the oral submissions in support of ground 2. The Tribunal's essential finding of fact, therefore, was that the appellant had failed to take all necessary steps to ensure that there was a proper factual basis for ground 2 and the submissions in support of that ground.
In this regard, it should be noted that the Tribunal's finding was, in essence, identical to the conclusion reached by this court in Huntingdale Village:[8]
[39]As advocacy is a human process, it is inevitable that inadvertent mistakes will be made by counsel from time to time. However, counsel's duty to not mislead the court carries a positive and correlative responsibility to take all necessary steps to ensure that there is a proper factual basis for submissions put to the court. The terms of proposed ground 2 and the oral submissions put in support of that ground represent a significant departure from that duty.
[40]As the factual premises upon which ground 2 is based are false, it is entirely without substance.
[8] Huntingdale Village [39]-[40] (Martin CJ, Newnes & Murphy JJA).
This conclusion, and the preceding reasons for it, were expressly adopted by the Tribunal. In this regard, the Tribunal:
(a)identified the relevant duty by reference to paragraph [39] of Huntingdale Village;[9]
(b)agreed with the reasons and conclusion set out in paragraphs [15] to [40] of Huntingdale Village;[10] and
(c)held that the Court's finding at paragraph [39] of Huntingdale Village and its reasons encapsulated the appellant's failure to take all necessary steps to ensure that there was a proper factual basis.[11]
[9] Reasons [20].
[10] Reasons [103].
[11] Reasons [119].
The false factual premises in ground 2, as found by the Court in Huntingdale Village (and found by the Tribunal), were, in summary, that:
(a)contrary to ground 2.1, the application for security for costs was not part-heard on 23 May 2014. Rather, the hearing of the application was completed. While orders were made which would have enabled further material to be filed (and perhaps a further hearing) to address the consequences of a proposed amendment to the statement of claim, the statement of claim was not amended within the time directed by the Court;[12]
(b)while not an error of significance, contrary to ground 2.2, the amended statement of claim was not filed and served on 24 June 2014, but on 26 June 2014;[13]
(c)contrary to ground 2.3, the reserved decision on the application for security for costs was not published without prior notice to the Westpoint companies.[14] In this regard, as noted above, the associate to Le Miere J advised the parties on 20 June 2014 that the reserved decision would be delivered on 26 June 2014. Following the appellant's advice that he would be overseas on that day and his request that the delivery of the decision await his return, the associate to Le Miere J advised the parties, also on 20 June 2014, that the reserved decision would be delivered on 2 July 2014;[15]
(d)contrary to ground 2.4 (that no reasons were given for the variation of Le Miere J's orders made on 21 May 2014), the appellant had expressly acknowledged, during the hearing on 2 July 2014, that he understood the reasons for the revocation of the orders, and that the revocation of those orders was 'probably appropriate';[16] and
(e)contrary to ground 2.5 (that the Westpoint companies were denied the opportunity to adduce additional evidence in support of their submissions that the receivers had caused the appellants impecuniosity), there had never been any suggestion during the hearing of the application for security for costs that the parties were to be at liberty to provide additional materials at large, nor were there any orders made to that effect.[17]
[12] Huntingdale Village [29] (Martin CJ, Newnes & Murphy JJA); Reasons [53], [102]-[103].
[13] Huntingdale Village [30] (Martin CJ, Newnes & Murphy JJA); Reasons [102]-[103].
[14] Huntingdale Village [31] (Martin CJ, Newnes & Murphy JJA); Reasons [102]-[103].
[15] Huntingdale Village [25] (Martin CJ, Newnes & Murphy JJA); Reasons [61]-[64], [102]-[103].
[16] Huntingdale Village [32] (Martin CJ, Newnes & Murphy JJA); Reasons [102]-[103].
[17] Huntingdale Village [33] (Martin CJ, Newnes & Murphy JJA); Reasons [102]-[103].
Similarly, in relation to misstatements of fact made by the appellant in oral submissions, the Court in Huntingdale Village (and the Tribunal) found that:
(a)the appellant misstated what had occurred at the hearing before Le Miere J by submitting that the orders made by his Honour were not confined to issues raised by the new pleading. That assertion was contrary to the rulings made by Le Miere J and the express terms of the orders that his Honour had made;[18] and
(b)the appellant's submission that the hearing of the application for security for costs had not concluded on 23 May 2014, and was adjourned part-heard, was not correct.[19] Rather, it was quite clear from the transcript of the hearing that, in accordance with the submissions put by the appellant, the hearing of the application was concluded save for any issues arising from the foreshadowed amendments to the statement of claim. In the event, because the statement of claim was not amended within the time directed by the court, the orders made for the provision of additional materials had no application.[20]
[18] Huntingdale Village [34] (Martin CJ, Newnes & Murphy JJA); Reasons [102]-[103].
[19] Huntingdale Village [35]-[38] (Martin CJ, Newnes & Murphy JJA); Reasons [102]-[103].
[20] Huntingdale Village [38] (Martin CJ, Newnes & Murphy JJA); Reasons [102]-[103].
These findings, which we have set out in some detail, are, principally, findings of fact. That is, they are findings as to what occurred in the hearing before Le Miere J and as to whether there was, indeed, a proper factual basis for grounds formulated, and the submissions put, by the appellant in CACV 79 of 2014. Even the findings as to the meaning of the orders made by Le Miere J are, in the circumstances, arguably findings of fact.
This will assume some importance in the context of a number of the grounds of appeal in this appeal, which challenge the findings of the Tribunal, and indeed of this Court in Huntingdale Village, as to the events that occurred in the hearing before Le Miere J. As set out below, many of those grounds do not raise an error of law, as required by the SAT Act.
The hearing before the Tribunal and preliminary matters
The hearing before the Tribunal was conducted on the basis of documentary evidence. In addition to the parties' Statements of Issues, Facts and Contentions, the Tribunal received into evidence a Book of Documents containing the relevant court documents and transcripts in relation to COR 223 of 2009 and CACV 79 of 2014 (Exhibit C).
The appellant was represented by counsel in the proceedings before the Tribunal and he did not give evidence. While the Book of Documents contained letters from the appellant to the Committee dated 31 August 2015[21] and 29 February 2016,[22] there was otherwise no account from the appellant as to the circumstances concerning the preparation of CACV 79 of 2014. In particular, the correspondence from the appellant reproduced in the Book of Documents contained very little in the way of detail as to the steps taken by the appellant in the preparation of that appeal.
[21] GAB 1-6.
[22] GAB 10-13.
In that regard, while the appellant's letter to the Committee dated 31 August 2015 referred to his 'bona fide belief' at the time that Le Miere J made the orders on 23 May 2014, his account of the preparation of the appeal was limited to the following:[23]
If I mislead (sic) the Court (which I am not conceding) I did not do so intentionally. I did [not] have a transcript of the hearings on 21 and 23 May 2014 when the appeal was commenced and so the grounds of appeal and submissions were based upon my file records and recollections.
[23] GAB 1. In his letter of 29 February 2016, the appellant confirmed (as the context suggests) that the word 'not' was intended to be included as it appears in this extract (GAB 12).
While the case before the Tribunal was limited to the documentary record, the hearing of this appeal was complicated by the fact that the appellant represented himself. In submissions, he naturally expressed views as to the relevant factual matters. It was made clear to the appellant in the course of submissions, however, that this Court could only act upon the documentary record and not on any new factual matters (including as to his beliefs) presented from the bar table.[24]
[24] Appeal ts 17-18.
With this context, it is necessary to say something further in relation to the way in which the case was run before the Tribunal.
First, while the Committee recognised that the obligation on counsel to take all necessary steps to ensure that there is a proper factual basis for submissions put to the court was correlative of the duty not to mislead the court, the Committee did not allege that the appellant had knowingly or recklessly misled the Court. The Committee, rather, submitted that the test 'is an objective one and doesn't include a mental element at all'.[25] The Tribunal accepted that the test was objective and, in that context, said that 'the Giudice test does not apply'.[26]
[25] Tribunal ts 14 (24 January 2018); Reasons [21].
[26] Reasons [22].
The Tribunal's reference to 'the Giudice test' was a reference to this Court's decision in Giudice v Legal Profession Complaints Committeein which Martin CJ distinguished between three categories of conduct in which counsel makes a statement to a court that is false or misleading: (1) knowing that the statement is false or misleading, (2) reckless disregard (or wilful indifference) as to whether the statement is false or misleading and (3) negligence or carelessness.[27]
[27] Giudice v Legal Profession Complaints Committee [2014] WASCA 115 (Giudice) [8] (Martin CJ), [120] (Edelman J agreeing).
In context, in our view, the Tribunal's statement that 'the Giudice test does not apply' is properly to be understood as a recognition that the case did not fall within the first two categories identified by Martin CJ in Giudice. That is, that no mental element of intention or recklessness was alleged, or needed to be established, by the Committee. In this way, the allegations of the Committee fell within the third category identified by Martin CJ in Giudice: namely, a failure to take proper care.
Secondly, it is apparent from the appellant's Amended Response to the Application filed in the Tribunal[28] that the focus of the appellant's case before the Tribunal was to assert that he did have a proper factual foundation for the grounds and submissions.[29] Indeed, it was the appellant's case that, contrary to the conclusions reached by the court in Huntingdale Village, the impugned statements of fact made by him were, in fact, correct.
[28] Amended Response to the Application and Respondents Statement of Facts and Contention (the Appellant's Response) (BAB 120-129).
[29] The Appellant's Response [22] and [26].
In this regard, it is one of the unusual features of this case that the matters relied upon by the appellant (before the Tribunal and on this appeal) for asserting that there was a factual foundation for ground 2 and his submissions – namely, the transcript of the proceedings on 23 May 2014 and the terms of the orders made by his Honour - are the very matters that the Court and the Tribunal relied upon in concluding that the factual premises for the ground and submissions were false.
In one sense, the appellant's reliance upon the transcript of the hearing before Le Miere J as providing a proper factual basis for ground 2 and the submissions was an ex post facto justification – given that the appellant did not review the transcript of the hearing before Le Miere J when he formulated the ground. In another sense, however, it is critical to understanding the case as it was run before the Tribunal.
The Tribunal found, as a matter of fact, that the factual allegations made by the appellant in CACV 79 of 2014 were false. Moreover, the Tribunal concluded (as had this court previously) that the true position was 'clear' from the transcript of the hearing before Le Miere J and from the orders that his Honour made.[30] Accordingly, insofar as the appellant maintained that the transcript and the orders supported his version of events, he was, according to the Tribunal's findings, objectively wrong (and, as the Tribunal found, substantially so).
[30] Reasons [44], [50], [53], [54], [55], [59], [70], [74], [85], [86]; see also Huntingdale Village [29]-[39], in particular the Court's conclusion (at [39]) that the terms of ground 2 and the oral submissions represented a 'significant' departure from the responsibility to take the necessary steps to ensure a proper foundation.
The Tribunal's reasons at [118], in finding that the appellant did not take all reasonable steps, referred to a number of matters that it said were 'clear from the hearing before Le Miere J'. Paragraph [118] is not a model of clear expression, mixing as it does both matters that occurred in the course of the hearing before Le Miere J and events that occurred afterwards. Nevertheless, in our view, it is tolerably clear from that part of the Reasons that the Tribunal was there referring to matters that demonstrated that the appellant ought reasonably to have known that the version of events that he proffered to the Court was objectively wrong; i.e. that there was no proper factual foundation for it. The Tribunal's focus on those matters was consistent with the focus of the appellant's case before the Tribunal.
It is true, as Mitchell JA says in his Honour's reasons at [182], that the Tribunal, in concluding that the appellant did not take all necessary steps to ensure a proper factual foundation, did not expressly set out all of the steps that the appellant had failed to take.[31] Nor, however, did this Court when it reached precisely the same conclusion in Huntingdale Village.
[31] Although the Tribunal did refer to the fact that the appellant prepared the grounds of appeal without the transcript and did not delete ground 2 upon receipt of it (Reasons [118(g)] and [118(h)]).
The conclusion, by both this Court and the Tribunal, that the appellant had failed to take all necessary steps, was an inference to be drawn from all of the circumstances. That was the principal basis upon which the Committee put its case; namely that it was to be inferred that the appellant did not carefully and thoroughly review the grounds of appeal or the available material.[32] In our view it is tolerably clear from the Reasons as a whole, including the Tribunal's express acceptance of the reasons and conclusions of this Court, that it drew that inference. As the Tribunal said in its Supplementary Reasons, the appellant 'was careless'.[33]
[32] Statement of Facts and Contentions [23], [27] (GAB 115-116, 118).
[33] Legal Profession Complaints Committee and Metaxas [2018] WASAT 28 (S) (Supplementary Reasons) [35].
In this context, it is important to bear in mind the nature of the facts upon which ground 2 (and the submissions in support of it) were based. This was not a case in which the appellant was reliant upon evidence or information from others to form the factual basis for the grounds and submissions (as might be the case in relation to facts emanating from a client or other witness). In the present case, as the Tribunal expressly found,[34] the appellant was personally involved in, and aware of, all of the events which formed the factual basis of the grounds and submissions. In circumstances in which there could be no objectively reasonable basis for the version of events proffered by the appellant, and the Committee disavowed any suggestion of knowledge or recklessness, the inference was irresistible that the appellant had failed to take reasonable steps to ensure that his version of events had a proper foundation.
[34] See, for example, Reasons [118(c)] and [118(d)].
In this context, pace Mitchell JA at [167], we do not consider that the Tribunal effectively applied a standard of strict liability in finding that the appellant had engaged in professional misconduct by failing to take all necessary steps to ensure that there was a proper factual basis for ground 2 and the submissions.
In saying this, we recognise that there are aspects of the Reasons that might be construed in that way. We should address those parts of the Reasons directly.
First, in the context of dealing with certain submissions made on behalf of the appellant, the Tribunal said:[35]
The Tribunal rejects the submission that Mr Metaxas only had to establish that there was a factual basis for what he was contending. The duty is to ensure that the facts are accurate.
[35] Reasons [24].
This remark, taken in isolation, is certainly capable of supporting the conclusion that the Tribunal applied a strict standard.
Again, towards the end of the Reasons, the Tribunal said: [36]
Courts and tribunals are heavily reliant upon information provided by practitioners in proceedings. They must be confident that the information provided in submissions is scrupulously accurate.
[36] Reasons [125].
These two remarks, ambiguous as they are, must be seen in the context of the Reasons as a whole, and the issues in the proceedings before the Tribunal. In that context, we do not consider that they reflect an error of law on the part of the Tribunal in applying the principle identified in Huntingdale Village. In particular, we do not consider that the Tribunal erred by applying a standard of absolute duty that all information provided to the court is accurate. Whether Huntingdale Village itself properly identified the relevant responsibility of a practitioner is a separate question (and is challenged by ground 1).
Our reasons for so concluding are as follows.
First, the Tribunal's actual findings as to the appellant's conduct in the Reasons are expressed in terms of a failure to take 'reasonable steps'[37] or 'necessary steps',[38] rather than in terms suggesting any absolute or strict liability. In this regard, in our view, the Tribunal did no more, or less, than reach the same conclusion as this Court in Huntingdale Village. The Reasons do, to an extent, lean too heavily on the reasoning and conclusions in Huntingdale Village and it would certainly have been preferable for the Tribunal to set out its own reasons more fulsomely in its own words. Nevertheless, the Reasons as a whole do not support the conclusion that the Tribunal misapprehended what had been said by this Court in Huntingdale Village.
[37] Reasons [118].
[38] Reasons [119].
Secondly, the Tribunal's remark reproduced at [42] above, must be seen in the context of the submission to which it was addressed. The submission made on the appellant's behalf, and which was repeated in this Court, was that the responsibility of a practitioner does not extend to taking necessary steps to ensure a proper factual foundation for a submission. Rather, the submission was that there must be a factual foundation (which in context must mean any factual foundation). This is the gist of the ground 1 in this appeal which contends that there is no foundation for the proposition in Huntingdale Village that counsel has a responsibility to take all necessary steps to ensure that there is a proper factual basis for submissions put to the court.[39]
[39] Appellant's submissions [6], [10]-[12] (WAB 13-14).
The submission rejected by the Tribunal was therefore one that was addressing the quality of the factual foundation upon which counsel bases a submission. The Tribunal was rejecting the proposition that any factual basis for a submission was sufficient: rather, there has to be a proper factual basis. That is, it is not sufficient for counsel to proffer a submission based on any factual foundation, no matter how tenuous, without a basis grounded in reality.
Related to this is the fact, referred to at [39] above, that the appellant was personally involved in, and aware of, all of the events which formed the factual basis for ground 2 and the submissions. The appellant was the sole source of the facts that he asserted (at least in formulating the ground, for which he did not review the transcript of the proceedings before Le Miere J).
In that context, the care that the appellant was required to take was in the articulation of facts in relation to which he had personal knowledge (rather than a case in which a practitioner might have to make an assessment of whether there is a proper basis for assertions of fact that have come from another person).
In such a case, there is no substantial difference between the appellant's responsibility to have a proper factual basis for making the relevant submissions and the appellant's need to be accurate in his submissions. In those circumstances, in our view, it is not incorrect to describe the practitioner's responsibility as the need to be 'scrupulously accurate'.
A final matter to note in relation to the Reasons generally, is that, notwithstanding that the Committee did not allege, and the Tribunal did not find, that the appellant's conduct was intentional or reckless (i.e. Giudice category 1 or 2), it nevertheless concluded that the appellant's breach of the relevant duty amounted to 'professional misconduct', as opposed to 'unsatisfactory professional conduct'. In that regard, while it was recognised in Giudice that one would ordinarily expect a finding of professional misconduct (as opposed to 'unsatisfactory professional conduct') in a case of intentional or reckless conduct, this does not mean that, in a sufficiently serious case of careless conduct, a finding of professional misconduct is not open.
Indeed, in the present case, the question of whether the appellant's conduct was to be characterised as 'professional misconduct' or 'unsatisfactory professional conduct' turned upon whether the appellant's departure from a reasonable standard of competence and diligence was 'substantial'. The Tribunal found that it was.[40] In those circumstances, notwithstanding that the Tribunal's finding was ultimately one of carelessness, it was open to the Tribunal to characterise that finding as amounting to 'professional misconduct'.
[40] Reasons [120], [123], [126].
That finding of course, was premised upon the Tribunal's acceptance that the articulation of the appellant's responsibility, by this Court in Huntingdale Village, was correct. That question is the subject of the first of the appellant's grounds of appeal, to which we now turn.
The grounds of appeal
There are 11 grounds of appeal. They are:
1.The State Administrative Tribunal in [2018] WASAT 28 erred in law in finding [120, 126] that the appellant was guilty of professional misconduct by failing to take all necessary steps to ensure that there was a proper factual basis for the second proposed ground of appeal in appeal CACV 79 of 2014 in this Honourable Court insofar as:
1.1there was no obligation on the appellant to take all necessary steps to ensure that there was a proper factual basis for the proposed ground of appeal; and
1.2the Tribunal should have found that the appellant's obligation was to ensure that there was a factual basis for the proposed ground of appeal and that the ground of appeal identified errors of fact or law as the basis upon which leave could be granted and the appeal allowed.
2.The Tribunal erred in law in finding [2018] WASAT 28 [50] that the effect of the orders made on 23 May 2014 was that the further affidavits and submissions which the parties might file were to be confined to the impact of the further amended statement of claim on the application for security for costs insofar as:
2.1Justice Le Miere stated at TS 437 that the further affidavits and submissions were to be 'in respect of the application for security for costs'; and
2.2there was no basis to construe the words 'in respect of the application for security for costs' as meaning anything else.
3.The Tribunal erred in law in finding [2018] WASAT 28 [57] that the Associates Record dated 21 May 2014 accurately reflected the orders made as set out in the transcript (save for the date) and if it was incorrect then the appellant should have sought to correct the record and impliedly waived the right to assert that the record was erroneous by not so doing insofar as:
3.1The Associates Record stated:
The parties have parties have [sic] leave to file further any affidavits and submissions in relation to the further amended statement of claim on or before 4 July 2014
whereas His Honour stated at TS 437 that the further affidavits were to be 'in respect of the application for security for costs'; and
3.2the Associates Record was not an order of the Court extracted under Order 43 RSC.
4.The Tribunal erred in law in finding [2018] WASAT 28 [62] that the Westpoint Companies were denied the opportunity to file further evidence because the further amended statement of claim was not filed until 26 June 2014 insofar as:
4.1the order for the amended pleading to be filed by 20 June 2014 was always susceptible to amendment by agreement between the parties;
4.2the parties agreed in effect that the amended pleading be filed by 25 June 2014;
4.3the amended pleading was filed 26 June 2014;
4.4the Receivers made no complaint about the late filing of the amended pleading on 2 July 2014; and
4.5the true cause of the Westpoint Companies being denied the opportunity to file further evidence was the publication of reasons for decision in the application for security for costs and his Honour having overlooked the orders made for leave to file further affidavits and submissions.
5.The Tribunal erred in law in finding [2018] WASAT 28 [85] that the appellant's submission to the Court of Appeal about notice of the reasons for decision was 'plainly misleading' insofar as:
5.1there was no allegation against the appellant by the respondent that he had made misleading submissions to the Court of Appeal;
5.2the finding was made without according procedural fairness to the appellant.
6.The Tribunal erred in law in finding [2018] WASAT 28 [97] that the appellant[']s assertion to the Court of Appeal that it was open to the Westpoint Companies to file affidavits and submissions on matters other than those arising out of the amendment of the statement of claim was not supported by the transcript insofar as at TS 437 Justice Le Miere stated that the further affidavits which could be filed were to be 'in respect of the application for security for costs' and 'not in support of the application for an inquiry';
7.The Tribunal erred in law in finding [2018] WASAT 28 [100] that the appellant[']s submission that reasons for orders made on 2 July 2014 were required was an implied assertion by the appellant that the orders were made notwithstanding his opposition insofar as the transcript of the hearing in the Court of Appeal at page 32 made clear that the appellant was of the opinion that he had no right to oppose orders being made to give effect to the reasons for decision then published.
8.The Tribunal erred in law in having regard [2018] WASAT 28 [104] to the reasons for decision in Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101(S) insofar as:
8.1it was not part of the respondent's application that the appellant had prosecuted an appeal which was doomed from the outset;
8.2the appellant was not given notice that the Tribunal intended to make a finding in relation to the merits of CACV 79 of 2014; and
8.3the Tribunal denied the appellant procedural fairness in relation to the finding.
9.The Tribunal erred in law [2018] WASAT 28 in finding [2018] WASAT 28 [106] that the appellant had failed to provide detailed and considered advice in respect of CACV 79 of 2014 insofar as:
9.1it was not part of the respondent's application that the appellant had failed to provide detailed and considered advice in respect of the appeal;
9.2the appellant was not given notice that the Tribunal intended to make a finding in relation to the sufficiency of the appellant's advice; and
9.3the Tribunal denied the appellant procedural fairness in relation to the finding.
10.The Tribunal erred in law [2018] WASAT 28(S) in finding [48] that the appellant took a 'long time to show remorse and acceptance of his conduct', this demonstrated a 'lack of insight' and he had 'belatedly accepted the error of his ways' insofar as:
10.1the appellant was entitled to maintain that the application should be dismissed without that being perceived as an absence of remorse or lack of insight;
10.2there was no evidence that the appellant lacked insight and the finding could not be founded on his opposition to the application; and
10.3the appellant was not accorded procedural fairness in relation to the finding.
11.The Tribunal erred in law [2018] WASAT 28(S) in finding [60] that the appropriate disposition of the application was impose a fine of $24,000 insofar as the Tribunal erred in law in failing to have regard to the affidavit of the appellant sworn 31 May 2018 in mitigation of penalty insofar as:
11.1in that affidavit the appellant deposed:
11.2par. 12 - that he had provided accommodation to his clients Mr & Mrs Craig at no cost as they had nowhere to live;
11.3par. 11 and 14 - he had persuaded his then partners to carry the cost of the action and the appeal;
11.4par. 15 - after the appeal he had persuaded Citibank to fund opposition to the special leave application;
11.5he had acted without payment for David Hugh Symons and Tham Symons against a solicitor, Malcolm J Bateman, to save their home and later had written a detailed history of the relationship between Mr & Mrs Symons and Mr Bateman which assisted Mr Symons to avoid imprisonment.
11.6he had assisted 2 practitioners the subject of applications by the respondent and in each of them had persuaded the respondent to abandon some complaints (par. 65 and par. 78);
11.7the Tribunal should have but did not have regard to the appellant's efforts in these matters;
11.8the fine imposed was manifestly excessive in circumstances where:
(a)appellant had an unblemished records;
(b)there was no need to protect the public through general deterrence from similar conduct;
(c)the appellant was careless but not dishonest;
(d)the appellant was not incompetent;
(e)the conduct was isolated; and
(f)the maximum fine was $25,000.
Ground 1 – The correctness of the principle in Huntingdale Village
Ground 1, in terms, challenges the Tribunal's finding of professional misconduct inasmuch as the Tribunal accepted, and applied, this Court's statement in Huntingdale Village to the effect that counsel has a 'responsibility to take all necessary steps to ensure that there is a proper factual basis for submissions put to the court'.
The appellant submits that there is no such obligation (ground 1.1) and that counsel's obligation is limited to ensuring that there was 'a factual basis' for a ground of appeal (ground 1.2).
The appellant, in particular, submitted that the inclusion of the word 'proper' in the principle identified in Huntingdale Village imposed too high an obligation on practitioners and was unsupported by authority.[41] In the course of his submissions on the appeal, the appellant maintained this submission,[42] although he later suggested that the word 'proper' added nothing to the principle.[43]
[41] Appellant's submissions [6], [10]-[12] (WAB 13-14).
[42] Appeal ts 37.
[43] Appeal ts 38.
As will be apparent, this ground challenges the correctness, in law, of this Court's decision in Huntingdale Village as much as it challenges the correctness of the approach of the Tribunal.
We are satisfied that, in challenging the Court's (and the Tribunal's) formulation of counsel's responsibility, ground 1 raises a question of law. We are also satisfied that, given the importance of the matter, leave to appeal should be granted to allow this ground to be raised.
The ground is, however, without merit.
There is, in our view, no reason to doubt the correctness of the Court's statement in Huntingdale Village that counsel has a 'responsibility to take all necessary steps to ensure that there is a proper factual basis for submissions put to the court'. That responsibility, as the Court said, arises as 'a positive and correlative responsibility' of the duty not to mislead the court. The latter duty could hardly be doubted and requires no authority.
In this regard, counsel's duty has long been understood not simply in negative terms, as a prohibition on knowingly proffering untrue facts, but as one involving positive obligations.
Over 22 years ago, for example, Ipp J, in the context of tactical denials in pleadings, identified the duty of honesty and candour as involving positive obligations:[44]
More than 100 years ago, for example, it was said that counsel's signature on a pleading is a 'voucher that the case is not a mere fiction': see Great Australian Mining Co v Martin (1877) 5 Ch D 1 at 10. If counsel's signature on a pleading is to carry that imprimatur, counsel will have to be astute to ensure that the pleading admits facts that should be admitted.
[44] Unioil International Pty Ltd v Deloitte Touche Tohmatsu [No 2] (1997) 18 WAR 190, 193 (Ipp J).
These remarks apply equally to grounds of appeal and submissions that proffer a particular factual version of the proceedings before the primary court. Counsel proffering such facts should have a proper basis for doing so.
Similarly, rule 36(4) of the Legal Profession Conduct Rules 2010 (WA) provides that a practitioner must not open as a fact any allegation which the practitioner does not then believe on reasonable grounds will be capable of support by available evidence. As rule 36(6) makes clear, the formation of such a belief requires the practitioner to 'make all reasonably practicable enquiries', thereby emphasising the positive nature of the practitioner's obligation.
The requirement for a 'proper' factual foundation for a pleading or submission is, therefore, simply an acknowledgement that a practitioner is required to critically evaluate the contention that he or she proposes to advance to the court to see that there is a reasonable basis for doing so. It requires the practitioner to take steps to ensure that the court is not misled, while acknowledging that the practitioner's obligation is not a counsel of perfection and a practitioner often is not in a position to warrant the reliability of information supplied by other persons.
What steps are necessary for there to be a proper factual foundation for a pleading or submission will, of course, vary with the circumstances of the case. Relevant considerations may include the resources of the practitioner, the ability of the client to pay for legal work, whether it is reasonable to proceed on the basis of a client's instructions as to matters not personally known to the practitioner and the knowledge of the practitioner. The nature of the pleading or submission will also be important. In the case of an allegation of fraud or serious misconduct, for example, the steps necessary to ensure that there is a proper factual basis are likely to be greater than in the case of a pleading or submission relating to more quotidian matters. Nevertheless, the principle remains one of general application.
In the present case, of course, the allegation made by the appellant was that a judge of the Court had denied a party procedural fairness. That is, an allegation of some seriousness, which, surely, required a proper factual foundation.
The word 'proper' in this context is equivalent to 'reasonable', and is intended to capture the qualitative aspect of a practitioner's duty not to mislead the court. The Court in Huntingdale Village was not in error in expressing the responsibility in this way and the Tribunal did not err in adopting the word 'proper' to describe the relevant responsibility of the appellant.
Ground 1 is not made out.
Ground 2 - The finding at Reasons [50]
Ground 2 challenges the Tribunal's finding that the effect of the orders made by Le Miere J on 23 May 2014 was that any further affidavits and submissions related to 'the impact the further amended statement of claim may have on the application for security for costs'.[45]
[45] Reasons [50].
The ground describes the alleged error as an error of law. Arguably, it is not an error of law but rather a challenge to a finding of fact; namely, the effect of the orders of 23 May 2014.
In any event, accepting (for present purposes) that the proper construction of the orders raises a question of law, in our view, the Tribunal was not in error as alleged in ground 2. In that regard, the construction of the orders requires a consideration of the terms of the orders, in light of the context in which they were made.
In the present case, both the text and the context in which Le Miere J made the orders supported the conclusion that, properly understood, the orders in relation to any (further) affidavits and submissions related to the impact of the proposed further amended statement of claim. In particular:
(a)the transcript of the hearing before Le Miere J reveals that his Honour made the orders in precisely those terms (which his Honour reiterated twice):[46]
Secondly, the parties have leave to file and serve any affidavits and submissions in relation to the further amended statement of claim on or before a certain date.
…
I've put it in terms of the parties have leave to file and serve any affidavits and submissions in relation to that further amended statement of claim…;
(b)the Associate's Record of the orders, set out at [11] above, also confirms the terms of the relevant order.
[46] GAB 187-188.
The appellant submits, as he did before the Tribunal, that the orders were not so limited and, in particular, that the Tribunal misinterpreted the transcript and that the Associate's Record was wrong.[47] In that context, the appellant sought to rely upon another passage in the transcript in which Le Miere J confirmed that the orders related to the application for security for costs, and not the substantive relief sought by the Westpoint companies. The Tribunal rejected those submissions, and the appellant's interpretation of those passages, as it was entitled to do.[48] No error of law is revealed.
[47] Appellant's submissions [19]-[20] (WAB 17-18).
[48] Reasons [50]-[51].
In our view, it is clear that it is the appellant's interpretation of the transcript of 23 May 2014 that is, and has consistently been, wrong. The findings by the Tribunal (and the Court in Huntingdale Village) as to the clear effect of the orders made on 23 May 2014 were correct.
Ground 2 is without merit.
Ground 3 - The Associate's Record
Ground 3 challenges the Tribunal's finding that the Associate's Record accurately reflected the orders set out in the transcript.[49]
[49] Reasons [57].
The Tribunal did not err in law in making that finding. Indeed, in light of the transcript as a whole, in our view, it was the only finding open.
The appellant's submissions also refer to, and challenge, the Tribunal's finding that the appellant was aware of the terms of the Associate's Record and that, if he believed that they were incorrect, it was open to him to seek to have the record corrected. In this context, the appellant submits that an associate's record had no particular status under the Rules of the Supreme Court 1971 (WA) or the Consolidated Practice Directions.[50]
[50] Appellant's submissions [25]-[27] (WAB 18).
This submission is beside the point. The purpose of the Tribunal referring to the appellant's failure to raise any error in relation to the Associate's Record (which it later referred to in Reasons [118]) was not a finding as to the legal effect of an associate's record. Rather, it was one of the matters that demonstrated that the appellant ought reasonably to have known that the version of events that he proffered to the Court in CACV 79 of 2014 was objectively wrong.
Ground 3 is without merit.
Ground 4 - The finding at Reasons [62]
Ground 4 is said to challenge the Tribunal's finding 'that the Westpoint Companies were denied the opportunity to file further evidence because the further amended statement of claim was not filed until 26 June 2014'.
The Tribunal made no such finding.
The finding referred to in ground 4, at Reasons [62], was as follows:
Mr Metaxas' submissions that the Westpoint Companies were denied the opportunity to file further evidence, is incorrect. … The Westpoint Companies lost the opportunity because of their failure to comply with the order for the filing of an amended statement of claim. (references omitted)
The Tribunal's finding was that the Westpoint companies were not denied the opportunity to file further evidence at all. Rather, they had an opportunity which, by not complying with the order for the filing of an amended statement of claim, they did not avail themselves of.
In support of this ground, the appellant relied upon correspondence between the solicitors in COR 223 of 2009, in which the appellant advised the solicitors for the Receivers, on 20 June 2014, that he proposed to file an amended pleading by 25 June 2014 and the solicitors' response noting that proposal and indicating that if the pleading was not filed, they would raise it with the Court on 2 July 2014.[51]
[51] GAB 263.
The appellant submits that the response from the Receivers' solicitors was 'to the effect that the parties agreed to extend time to 25 June 2014'.[52] Leaving aside the fact that, even if time for compliance with the order had been extended to 25 June 2014, the appellant still did not comply with it, this submission is misconceived.
[52] Appellant's submissions [31] (WAB 19).
No application (formal or informal) was made to the Court to extend the time for compliance with any of the orders made on 23 May 2014. The correspondence upon which the appellant relies to suggest that this was 'in effect' what occurred was confined to the parties' solicitors. No notice of any 'agreed' extension was given to the Court.
There appears to be an assumption underpinning this ground that it is entirely a matter for the parties to determine whether, and if so how, court orders are to be complied with and, indeed, whether they are to be varied. Even in the case of a consent order filed pursuant to Order 43 rule 16 of the Rules of the Supreme Court, that assumption is wholly unfounded. Even less so, could it be suggested that the effect of court orders can be varied by mere correspondence between parties.
It is important to remember the context in which this issue arises in the present case. The appellant proffered a ground of appeal alleging that Le Miere J had denied the Westpoint companies procedural fairness. That is a serious allegation, and one not to be made lightly. And yet, at least on this aspect of the appellant's case, that allegation was based on the proposition that, by proceeding in accordance with the orders that his Honour made, and which the appellants had not complied with, Le Miere J denied the Westpoint companies procedural fairness because of a tacit agreement between the parties to vary the orders, without that agreement ever having been communicated to the Court.
Such a proposition need only be stated to reveal its error.
Ground 4 is without merit.
Ground 5 - Finding of misleading
Ground 5 challenges the following finding of the Tribunal, in the context of the allegation in ground 2.3 of the appeal in CACV 79 of 2014, that Le Miere J's decision was published without prior notice to the Westpoint companies:[53]
It is difficult to understand Mr Metaxas' proposition that he was not given notice of the hearing. Plainly he was. To state in the grounds of appeal and in his submissions that he was not given notice, when he requested that the proposed date for delivery of the reasons be extended and then to compound it by re-stating it to the Court of Appeal in oral argument, was plainly misleading by Mr Metaxas.
[53] Reasons [85].
The appellant complains that there was no allegation made by the Committee that he had intentionally sought to mislead the Court of Appeal in CACV 79 of 2014.
That is correct. As noted at [29] above, the Committee did not allege that the appellant had knowingly or recklessly misled the Court. Nor, however, in our view, did the Tribunal make such a finding.
However, as was clear from the Tribunal's reliance upon the statement of principle in Huntingdale Village, the responsibility to take all necessary steps to ensure that there is a proper factual basis for submissions put to the court arises as 'a positive and correlative responsibility' of the duty not to mislead the court.
'Misleading' is, in this context, used in an objective sense. The Tribunal's Reasons, at [85], should not be understood as a finding that the appellant intended to mislead the Court. Rather the Tribunal's finding was simply that, objectively, ground 2 in CACV 79 of 2014 and the oral submissions in support of it were misleading as to the factual premises upon which they were based.
The Tribunal's use of the adverb 'plainly' in this context reflects the fact that, of all the allegations in ground 2 in CACV 79 of 2014, the suggestion that Le Miere J had published his decision on 2 July 2014 without prior notice to the Westpoint companies was the one that was most obviously false.
That the Tribunal did not find that the appellant had intentionally misled the Court is made clear in its Supplementary Reasons in which it said:[54]
The Tribunal is obviously concerned that Mr Metaxas misled the Court of Appeal in a number of respects. However, the Tribunal did not find that Mr Metaxas was dishonest. He was careless.
[54] Supplementary Reasons [35].
Ground 5 is without merit.
Ground 6 - The finding at Reasons [97]
Ground 6 challenges the Tribunal's finding that:[55]
Mr Metaxas' assertion to the Court of Appeal that it was open for him to file affidavit and submissions on matters other than those arising out of the amendment after the completion of the hearing on 23 May 2014 is not supported by the transcript.
[55] Reasons [97].
This finding is, relevantly, the same as the finding at Reasons [50] challenged by the appellant in ground 2 above.
For the reasons set out in relation to that ground, at [76] to [78] above, the Tribunal's conclusion was open to it and, in our view, correct.
Ground 7 - The finding at Reasons [100]
Ground 7 is difficult to follow.
It relates to the allegation in ground 2.4 of the appeal in CACV 79 of 2014 that Le Miere J denied the Westpoint companies procedural fairness in that 'no reasons were given for the variation of the orders made on 21 May 2014'.
In relation to that ground, the Tribunal, adopting the conclusions of the Court in Huntingdale Village, found that the appellant had expressly acknowledged, during the hearing on 2 July 2014, that he understood the reasons for the revocation of the orders, and that the revocation of those orders was 'probably appropriate'.[56]
[56] Huntingdale Village [32] (Martin CJ, Newnes & Murphy JJA); Reasons [102]-[103].
The only finding at Reasons [100] is that '[a] submission that reasons were required, implicitly submits that the terms of the orders were opposed'. In context, that proposition is unremarkable. The appellant formulated a ground alleging a denial of procedural fairness based on the failure to give reasons in relation to consequential orders vacating orders 2 to 4 made on 23 May 2014. The only reasonable interpretation of orders 2 to 4 was that, by 2 July 2014, the orders had no application, as their operation was premised on a proposed amendment to the statement of claim being filed by 20 June 2014, which did not occur.[57] Notwithstanding the appellant's own, objectively incorrect, interpretation of the events of 23 May 2014, it is clear that he understood the reasons why it was, in his own words, 'probably appropriate' to vacate those orders.
[57] Huntingdale Village [29], [38] (Martin CJ, Newnes & Murphy JJA); Reasons [53], [102]-[103].
Ground 7 is without merit.
Ground 8 - Reasons [104]
Ground 8 alleges an error of law in the Tribunal having referred, at Reasons [104], to the Court of Appeal's decision in relation to costs in Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101 (S).[58]
[58] Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101 (S) (Huntingdale Village (S)).
The ground reveals no arguable error of law. Indeed, Reasons [104] contains no finding of the Tribunal at all. It simply records the Court's conclusions in relation to the grounds of appeal in CACV 79 of 2014, and, in particular, that they lacked any prospect of success.
The appellant can hardly have been unaware that the Tribunal might have regard to the Court's decision in Huntingdale Village (S).The decision in Huntingdale Village (S) formed part of the Committee's Book of Documents (Exhibit C), which was tendered at the commencement of the hearing without objection from the appellant's counsel.[59]
[59] Tribunal ts 5-7 (24 January 2018); GAB 356-364.
Ground 8 is without merit.
Ground 9 - The finding at Reasons [106]
Ground 9 also relates to the Tribunal's reference to Huntingdale Village (S).
Unlike ground 8, however, the Tribunal did make a finding in Reasons [106], to the effect that the appellant's failure to provide detailed advice to his client and his assertion (to the client):
that 'you have to appeal otherwise you are giving a blank cheque' explains why Ground 2 lacked any substance filed by Mr Metaxas.
The appellant submits that this finding was not relevant to the application and, in particular, that the Committee did not advance a case that the appellant was guilty of 'professional misconduct' or 'unsatisfactory professional conduct' for having failed to provide detailed and considered advice and prosecuting an appeal that was doomed to fail.[60]
[60] Appellant's submissions [37]-[40] (WAB 21).
No error of law is revealed in this aspect of the Reasons.
The Tribunal did not make a finding that the appellant was guilty of professional misconduct (or unsatisfactory professional conduct) by having failed to provide detailed and considered advice and prosecuting an appeal that was doomed. Rather, the Tribunal's reference to those matters was made in the context of, and relevant to, its identification of an explanation for why ground 2 in CACV 79 of 2014 lacked substance.
That ground 2 did lack substance was at the heart of the Committee's application. It could hardly be suggested that the appellant was not on notice that an issue in the proceedings before the Tribunal was that the appeal in CACV 79 of 2014 lacked substance (or, at least, that ground 2 did). It was central to the Committee's case before the Tribunal that the appellant did not have a proper factual basis for ground 2 or the oral submissions in support of it. The only way to characterise a ground of appeal based on false factual premises is, as the Court found in Huntingdale Village, 'entirely without substance'.
That is what the Tribunal, in agreeing with the Court's conclusion, found.[61]
[61] Reasons [102]-[103].
To have proffered a ground of appeal lacking in substance, and without a proper factual foundation, called for some explanation. That explanation was the appellant's carelessness which, in turn, was explained by the circumstances in which it was formulated (as identified in Huntingdale Village (S) and accepted by the Tribunal).[62]
[62] Reasons [105]-[106].
Ground 9 is without merit.
Ground 10 – Remorse and insight
Ground 10 relates to the Tribunal's finding, in the context of its consideration as to the appropriate penalty, that:[63]
Mr Metaxas took a long time to show remorse and acceptance of his conduct. His lack of insight is of concern to the Tribunal. Having regard to Mr Metaxas' submissions on penalty and his acceptance of an appropriate sanction, the Tribunal accepts that Mr Metaxas has belatedly accepted the error of his ways.
[63] Supplementary Reasons [48].
The appellant makes a number of challenges to this aspect of the Supplementary Reasons, namely that:
(a)he was entitled to maintain that the application should be dismissed without that being perceived as an absence of remorse or lack of insight;
(b)there was no evidence that he lacked insight and the finding could not be founded on his opposition to the application; and
(c)he was not accorded procedural fairness in relation to the finding.
As to the last matter, there is no substance to the suggestion that the appellant was not afforded procedural fairness in relation to the finding that he has 'lacked insight' and 'belatedly accepted the error of his ways'.
The Committee, which made its submissions prior to the appellant on the question of penalty, expressly submitted, in a number of places, that the appellant lacked insight and contrition. Indeed, it was for this reason that the Committee submitted, before the Tribunal, that the appropriate penalty was for the Tribunal to suspend the appellant's practising certificate for a period of 3 months.[64]
[64] Legal Profession Complaints Committee's Submissions on Penalty and Costs dated 10 May 2018 [1], [12], [15], [16], [19], [22.2], [24.1], [29], [30], [31] (BAB 130-137).
The appellant was clearly on notice, and responded to, the submission that he lacked insight and remorse.
Paradoxically, the Tribunal, in the passage sought to be impugned by the appellant on this ground, did accept that the appellant had shown remorse and insight, albeit 'belatedly'. To that extent, the Tribunal rejected the Committee's submission that the appellant had, following the Tribunal's finding, persisted in his view that he had done nothing wrong.
The appellant's complaint in this context, therefore, is in the Tribunal having found that the appellant's remorse and insight was 'belated'. He submits that such a finding was not open and, in particular, could not be based upon his opposition to the application.
That submission is directly contrary to this Court's decision in Khosa v Legal Profession Complaints Committee.[65]
[65] Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (Khosa).
In Khosa, the appellant had submitted that 'the Tribunal erred in finding a lack of remorse in that Mr Khosa had a right to defend himself, and his explanation as to his conduct had been consistent throughout'.[66]
[66] Khosa [184(2)] (Murphy & Beech JJA).
In rejecting that submission, Murphy & Beech JJA said:[67]
The Tribunal's finding of an absence of remorse was open to the Tribunal. Remorse involves a real regret or contrition for wrongdoing. It is true that Mr Khosa was entitled to defend the disciplinary proceedings against him. But, his assertion throughout that he had done nothing wrong is inconsistent with his acceptance of, and contrition for, wrongdoing.
[67] Khosa [210] (Murphy & Beech JJA).
That conclusion applies with even greater force in the present case. Not only was the Tribunal entitled to have regard to the fact that the appellant continued to assert, throughout the proceedings, that he had done nothing wrong, in the present case the appellant had the benefit of this Court's reasons in Huntingdale Village. Those reasons ought to have enabled the appellant to reflect upon his conduct.
Rather than doing so, the appellant persisted in the view that it was the Court of Appeal, and not him, that was in error. He was entitled to take that position. What he could not do, however, consistent with that position, was later assert that he had at all times been remorseful and had insight into his own erroneous view and careless conduct.
Ground 10 is not made out.
Ground 11 - Appeal from fine of $24,000
The final ground of appeal, ground 11, challenges the quantum of the fine imposed by the Tribunal.
The ground does not, and could not, challenge the fact that a fine was imposed. In the proceedings before the Tribunal, the appellant submitted, contrary to the Committee's submission that the appellant's practising certificate should be suspended, that a fine was the appropriate penalty.
The appellant alleges both:
(a)express error, in that the Tribunal failed to have regard to the appellant's affidavit in mitigation of penalty; and
(b)implied error, in that the fine of $24,000 was manifestly excessive.
As to the allegation of express error, in our view, there is no basis to conclude that the Tribunal failed to have regard to the affidavit evidence placed before it on the appellant's behalf. Indeed, the fact that the Tribunal, at Supplementary Reasons [48], found that the appellant had, belatedly, shown remorse and insight, is directly referable to the appellant's affidavit to that effect.
As to the allegation of implied error, the limitations upon appellate review identified in House v The King apply, namely that:[68]
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[68] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505; Khosa [179] (Murphy & Beech JJA).
In his submissions, the appellant referred to three matters as supporting the contention that the fine imposed was manifestly excessive: his unblemished record, his demonstrated competence in trials and appeals and his efforts on behalf of impecunious clients.[69]
[69] Appellant's submissions, [45]-[47].
Each of those matters was expressly referred to by the Tribunal in the Supplementary Reasons. For example:
(a)the Tribunal concluded that although the appellant failed over an extended period to recognise and observe his obligation, he had an unblemished record prior to this and his conduct was a one-off;[70]
(b)the appellant had had a long career and his conduct was careless rather than incompetent and should be dealt with on that basis;[71] and
(c)the Tribunal referred to the appellant's pro bono contributions, although it noted that such contributions should be a standard feature of the practice of all practitioners.[72]
[70] Supplementary Reasons [26].
[71] Supplementary Reasons [41].
[72] Supplementary Reasons [51].
In the context of these and other considerations, however, the Tribunal also properly had regard to the fact that, with his long career, the appellant 'should have known better',[73] and that a significant consideration was the need to deter other practitioners from such conduct.[74]
[73] Supplementary Reasons [58].
[74] Supplementary Reasons [59].
Neither party, at the hearing of the appeal, referred to any authorities suggesting any range of penalties in cases comparable to this. This is to be expected, given the wide range of circumstances in which the responsibility to ensure that there is a proper factual foundation for submissions will arise. In the end, the appropriate penalty to be imposed in any particular case will depend upon the evaluation of the particular facts and circumstances in the context of the general importance of legal practitioners fulfilling their responsibilities.[75]
[75] Legal Profession Complaints Committee v Detata [2012] WASCA 214 [59] (Martin CJ).
In the present case, in our view, the penalty imposed by the Tribunal was high, particularly given that the finding was one of carelessness. Nevertheless, it cannot be said, in our view, that it was unreasonable or plainly unjust. While the size of the fine was at the high end of the range of possible fines, it must be recognised that a fine is nevertheless a penalty less severe, in kind, from other sanctions available under the Legal Profession Act 2008 (WA), including suspension and cancellation of registration, which are not infrequently imposed where there is a finding of professional misconduct.
In that sense, even a fine for the maximum of $25,000 cannot be regarded as a penalty reserved for the most serious of cases, and may very well be appropriate in cases where there has been a substantial departure from reasonable standards of diligence, but where suspension or cancellation is not called for.
In the present case, we are satisfied that the Tribunal had regard to all relevant considerations in arriving at the disposition that it did, and that that disposition was not unreasonable or plainly unjust.
Ground 11 is not made out.
Conclusion
In light of the above, the appropriate orders are that leave to appeal be granted, but that the appeal be dismissed.
MITCHELL JA:
Summary
On 26 April 2018, the State Administrative Tribunal made a finding that the appellant had engaged in professional misconduct within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) (Act). The misconduct was found to have occurred between about 23 July 2014 and 17 March 2015, in the appellant's conduct of the application for leave to appeal and the appeal to this court in Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda.[76] The Tribunal found that the appellant engaged in professional misconduct by failing to take all necessary steps to ensure that there was a proper factual basis for:
(1)a proposed ground of appeal; and
(2)oral submissions made to this court in support of the application for leave to appeal and the appeal.
[76] Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101.
The appellant appeals to this court against that finding, as well as the penalty that the Tribunal subsequently imposed.
The relevant background is set out in the reasons of Quinlan CJ and Pritchard JA (joint reasons). For the reasons explained in the joint reasons, appeal grounds 2 - 11 are not established.
As to ground 1, I agree with the observations made at [63] - [71] of the joint reasons as to counsel's responsibility to take all necessary steps to ensure that there is a proper factual basis for pleadings and submissions put to the court. However, I have taken a different view in relation to the manner in which the Tribunal's reasons for decision should be construed.
A question of law raised by ground 1 is whether the Tribunal applied the wrong test in determining that the appellant had engaged in professional misconduct, construing the nature of the appellant's professional obligations too strictly. In my view, the answer to this question of law is 'yes'. It follows that, in my view, the Tribunal's finding and consequent penalty decision should be set aside, and the matter should be sent back to the Tribunal for reconsideration.
The Huntingdale decision
This court identified the relevant professional responsibility in Huntingdale in the following terms:[77]
As advocacy is a human process, it is inevitable that inadvertent mistakes will be made by counsel from time to time. However, counsel's duty to not mislead the court carries a positive and correlative responsibility to take all necessary steps to ensure that there is a proper factual basis for submissions put to the court.
[77] Huntingdale [39].
The responsibility that the court identified is not an absolute duty to ensure the accuracy of information for the following reasons.
First, the opening sentence of the passage just quoted makes it clear that not every careless misstatement of fact will constitute a breach of counsel's responsibility to the court. That is, there is a fault element which must be present before the duty which the court identified will be breached.
Secondly, the court described the responsibility it identified as being correlative to the duty not to mislead the court. It is established that not every incorrect statement will involve a breach of the duty not to mislead the court constituting professional misconduct. As Martin CJ (Edelman J agreeing on this point) noted in Giudice v Legal Profession Complaints Committee:[78]
As this court has pointed out, when a practitioner provides information or makes a statement to a court which is false or misleading, there are (at least) three categories of case in which that conduct will constitute either professional misconduct or unsatisfactory professional conduct. First, the practitioner might know that the statement or information is false or misleading. Second, the practitioner might have a reckless disregard to the question of whether the statement or information is false or misleading, and third, the practitioner might be negligent or careless. Because the first two categories will only apply if, assessed subjectively, the practitioner is either aware that the statement or information is false or misleading, or wilfully indifferent to its truth, in the absence of special circumstances one would ordinarily expect a finding of either category of conduct to be characterised as a substantial departure from the standards of conduct reasonably expected of a practitioner such as to constitute professional misconduct, within the taxonomy of the Act. In cases falling within the third category - that of negligence or carelessness - whether or not the practitioner's conduct is either unsatisfactory professional conduct or professional misconduct will depend upon the nature and degree of negligence or carelessness involved. (citations omitted)
It follows that because the responsibility the court identified is correlative to this duty, it is similarly not an absolute duty.
[78] Giudice v Legal Profession Complaints Committee [2014] WASCA 115 [8].
Thirdly, it is well established that there is a duty to ensure allegations of fraud or dishonesty have a proper factual basis.[79] Rule 36(3) of the Legal Profession Conduct Rules 2010 (WA) relevantly provides that: [80]
A practitioner must not draw or settle any court document that alleges criminality, fraud or other serious misconduct by a person unless the practitioner believes on reasonable grounds that —
(a)factual material already available to the practitioner provides a proper basis for the allegation …
An absolute duty to ensure the accuracy of legal submissions would involve a stricter standard than that which applies to allegations of serious misconduct. This court's reasons in Huntingdale must be read in that context, which counts against the prescription of an absolute duty.
[79] Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [162]; Sims v Jooste [2013] WASCA 245 [12].
[80] See also Rule 63 of the Western Australian Barristers' Rules published by the Western Australian Bar Association which relevantly provides that a barrister must not allege any matter of fact in any court document settled by the barrister or make any submission during a hearing unless the barrister believes on reasonable grounds that the factual material already available provides a proper basis to do so.
Fourthly, the existence of a fault element is apparent from the terms in which 'unsatisfactory professional conduct' and 'professional misconduct' are defined in s 402 and s 403 of the Act:
402.Term used: unsatisfactory professional conduct
For the purposes of this Act —
unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
403.Term used: professional misconduct
(1)For the purposes of this Act - professional misconduct includes -
(a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
In this case, the respondent's application and the Tribunal's finding were that the appellant's conduct substantially or consistently fell short of the standard of competence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. That allegation and finding invoked that aspect of par (a) of the definition of 'professional misconduct' read with the definition of 'unsatisfactory professional conduct'. It was not alleged or found that the appellant acted dishonestly, by making statements knowing that they were false or indifferent as to their truth.
The court in Giudice held that, in the context of the duty not to mislead the court, a reference to 'recklessness' was to subjective recklessness in the sense of the practitioner being indifferent to the truth of the statement, not caring in the practitioner's own heart and conscience whether it was true or false.[81] The positive responsibility which is correlative to this aspect of the duty not to mislead the court is a responsibility not to make statements to the court without caring whether they are true or false.
[81] Giudice [44], [130]. To similar effect, see Buss JA at [94] - [96].
In the present case, the respondent did not allege that the appellant intentionally or recklessly made a false statement. Therefore, if the present case were to be characterised as one of misleading the court, it would fall into the third category of case Martin CJ identified in Giudice. The question would be whether the nature and degree of carelessness or negligence involved in making an incorrect statement to the court was such as to amount to professional misconduct. That negligent conduct could potentially amount to professional misconduct was recognised in Fidock v Legal Profession Complaints Committee,[82] where the court gave the following example (in the context of a statement in an affidavit which was said to be misleading):[83]
Thus, for example, a misleading statement to the court made by a practitioner on a matter of importance to the disposition of the case, where the misstatement is made as a result of gross carelessness, may, depending on all the circumstances, involve a 'substantial … failure to reach or maintain a reasonable standard of competence and diligence' and thereby constitute professional misconduct within the meaning of s 403 of the 2008 Act. The importance of practitioners providing reliable information to the court applies with heightened force to a solemn occasion such as the swearing of an affidavit by a solicitor.
[82] Fidock v Legal Profession Complaints Committee [2013] WASCA 108 [101] - [102].
[83] Fidock [102], quoted by Buss JA in Giudice [102].
The duty not to mislead the court through conduct which is so careless or negligent as to amount to professional misconduct correlates to the duty to exercise reasonable care in making factual statements to the court. In that context, this court's reference to the correlative 'responsibility to take all necessary steps to ensure that there is a proper factual basis' is not an absolute duty which is necessarily breached by mere carelessness. Absent dishonesty, a failure to take steps to ensure that there is a proper factual basis for a statement made to a court will only constitute professional misconduct where the nature and degree of the carelessness or negligence in making an incorrect statement is sufficient to support that conclusion.
The Tribunal's approach
In my view, when the Tribunal's reasons are read as a whole, it did not apply the correct test in determining whether the appellant engaged in professional misconduct. It did not engage in the process of determining whether the appellant, in advancing factually incorrect grounds and submissions, displayed carelessness or negligence of such a nature and degree as to constitute professional misconduct. Rather, the Tribunal effectively applied a standard of strict liability, perceiving that there was a duty on the appellant to ensure information he provided to the court was accurate. I reach that conclusion for the following reasons.
First, after referring to the passage of Martin CJ's judgment in Giudice quoted at [160] above and the respondent's submissions, the Tribunal said:[84]
The Tribunal accepts the Committee's submissions that intention is not relevant in determining whether there is a breach of the duty to take all [necessary] steps to ensure the reliability of the information, that is, the Giudice test does not apply. The test is objective.
[84] Primary decision [22].
If by this the Tribunal meant that none of the fault questions which arise in the three categories of case identified in Giudice were relevant, the Tribunal would have erred. Read against the background of the submissions of the respondent quoted by the Tribunal, it might reasonably be contended that, in this passage, the Tribunal was only saying that it was not necessary to establish that the case fell into the first or second category identified by Martin CJ in Giudice. However, after referring to the appellant's submission that he only needed to show the presence of a factual basis for what he was contending, the Tribunal said:[85]
The Tribunal rejects the submission that Mr Metaxas only had to establish that there was a factual basis for what he was contending. The duty is to ensure that the facts are accurate. (emphasis added)
[85] Primary decision [24].
Taken as a whole, the Tribunal's opening discussion of the relevant legal principles strongly suggests that the Tribunal proceeded on a basis that the practitioner's duty was to 'ensure the facts are accurate'.
Secondly, in the next part of its reasons the Tribunal sets out the course of the Huntingdale proceedings at first instance and on appeal, largely by copying and pasting slabs of transcript, court documents and judgments.[86] The Tribunal made occasional factual findings in the course of doing so, but in general these were concerned with establishing that the factual assertions made in ground 2 of the Huntingdale appeal and submissions in support of that ground were factually incorrect.[87] There were some exceptions, noted below, but this part of the reasons does not expressly address the existence, nature and degree of the appellant's carelessness or negligence.
[86] Primary decision [25] - [106].
[87] Primary decision [44], [50], [53], [65], [77] - [78], [97], [99] - [100], [103].
The exceptions noted in the previous paragraph are observations by the Tribunal that:
(1)It was difficult to understand how the appellant could have come away from the hearing of 23 May 2014 with any misconception as to what the orders were and the basis upon which Le Miere J had made the orders.[88]
(2)The fact that the appellant did not seek to correct the Associate's Record indicated that he was not under any misconception as to what the orders were.[89]
(3)In relation to the particular of ground 2, which contended that Le Miere J delivered judgment without notice to Huntingdale, the Tribunal observed:[90]
It is difficult to understand [the appellant's] proposition that he was not given notice of the hearing. Plainly he was. To state in the grounds of appeal and in his submissions that he was not given notice, when he requested that the proposed date for delivery of the reasons be extended and then to compound it by restating it to the Court of Appeal in oral argument, was plainly misleading by [the appellant].
(4)As to the issue of procedural fairness, the Tribunal observed:[91]
If [the appellant] in fact believed that he had been denied procedural fairness because the process contemplated by the orders of 23 May was incomplete, he could have raised the matter before His Honour. His failure to do so is indicative of the position that he did not have any belief, or any reason to believe that there had been a breach of procedural fairness.
However, these findings all suggest that the appellant may have knowingly attempted to mislead the court. As noted above, that was not the respondent's contention or the basis on which the Tribunal found the appellant to have engaged in professional misconduct. Although the question of carelessness or negligence may properly be addressed having regard to what the appellant knew, these findings do not contain a conclusion that the appellant acted carelessly or negligently.
[88] Primary decision [55]
[89] Primary decision [57].
[90] Primary decision [85]; see also [70].
[91] Primary decision [88]; see also [74] - [75].
I also note, in passing, the further passage in this part of the Tribunal's reasons:[92]
The failure by [the appellant] to provide detailed and considered advice is consistent with his assertion that 'you have to appeal otherwise you are giving a blank cheque' explains why Ground 2 lacked any substance filed by [the appellant].
There is evidently a syntactic error in this sentence. Its intended meaning is not clear to me.
[92] Primary decision [106].
Thirdly, the manner in which the Tribunal addressed the respondent's contentions suggests that the Tribunal assessed the appellant's conduct by reference to an absolute duty. Following the parts of the reasons referred to above, the Tribunal copied the respondent's statement of facts, issues and contentions (SFIC) and the appellant's responses where relevant.[93] At some points, the Tribunal indicated that it rejected the appellant's contentions. The manner in which the Tribunal dealt with the respondent's central contentions in this part of the reasons is significant.
[93] Primary decision [107] - [117].
As explained at [176] - [177] and [178] - [179] below, the respondent's contentions were, in effect, structured in the following manner:
(1)Ground 2 of the Huntingdale appeal, and the appellant's oral submissions, had no actual factual foundation.
(2)It should be inferred from (1) that the appellant did not take specified steps necessary to ensure that ground 2 and the submissions had a proper factual basis.
In summary, the Tribunal accepted (1) but did not address (2). This suggests that the Tribunal understood that establishing there was no actual factual foundation for ground 2 and the oral submissions was sufficient to show a breach of the duty.
In relation to ground 2 of the Huntingdale appeal, the respondent made its central contentions in par 22 and par 23 of the SFIC. Paragraph 22 contended that ground 2 lacked a proper factual basis because it was premised on factual assertions which were contrary to the actual facts. Paragraph 23 contended that it is to be inferred from the matters referred to in par 22 that, in the course of preparing the appellant's case in the Huntingdale appeal, the appellant did not thoroughly and carefully review specified documents for the purpose of ensuring that ground 2 had a proper factual basis. The appellant in effect denied the contentions in both par 22 and par 23 of the SFIC.
The Tribunal said that it rejected the appellant's response to par 22 of the SFIC.[94] However, the Tribunal did not deal with par 23 of the SFIC or the appellant's response to that paragraph. The paragraph and response are simply reproduced in the Tribunal's reasons without comment.
[94] Primary decision [114] - [115].
In relation to the oral submissions made in support of ground 2, the respondent's central contentions were contained in par 26 - 29 of the SFIC. Paragraph 26 contended that the appellant made specified oral submissions at the hearing of the appeal. Paragraph 27 contended that each of those oral submissions lacked a proper factual basis, in general terms because they did not reflect what actually occurred in the Huntingdale proceedings. The general effect of the appellant's response to the contentions in par 26 and 27 of the SFIC was to assert that the submissions had a proper factual foundation. Paragraph 28 of the SFIC contended that it was to be inferred from the matters referred to in par 27 that, in the course of preparing to appear at the Huntingdale appeal hearing, the appellant did not thoroughly and carefully review the appeal books, and in particular specified documents in the appeal books. In par 29 of the SFIC it was similarly contended that it was to be inferred from the matters referred to in par 27 that, in the course of making oral submissions, the appellant did not thoroughly and carefully consider the content of those submissions before making them.
The Tribunal said that it rejected the appellant's response to par 26 and par 27 of the SFIC.[95] However, the Tribunal did not deal with par 28 or par 29 of the SFIC or the appellant's response to those paragraphs. Those paragraphs and the responses are again simply reproduced in the Tribunal's reasons without comment.[96]
[95] Primary decision [117].
[96] Primary decision [117].
That is, the respondent's case did not simply proceed on the basis that the appellant made factual assertions without a proper factual foundation. It went further and invited the inference that the appellant had failed to do certain things, which the respondent in effect contended amounted to carelessness or negligence of a nature and degree sufficient to constitute professional misconduct.
The Tribunal accepted (correctly in my view) that the statements the respondent identified had no actual factual foundation. However, the Tribunal did not deal with the contention that it should be inferred that the appellant did not take the specified steps. That approach is consistent with the Tribunal taking the view that showing the statements to be inconsistent with the actual facts was sufficient to establish breach of the appellant's professional responsibility. If the Tribunal took that view, there would be no occasion to identify any steps which the appellant failed to take. The failure to take 'necessary steps' would follow from the making of a submission that was without actual foundation. That the Tribunal did not deal with the respondent's second contention noted at [175] above suggests that its approach was, in effect, to impose a duty to counsel to 'ensure the facts are accurate'.
Fourthly, the Tribunal does not identify the particular steps which the appellant failed to take to ensure that there was a proper factual basis for the ground of appeal and submissions in support of the ground. Having dealt with the contentions in the SFIC and the appellant's response to those contentions, the Tribunal then said:[97]
For the reasons stated above, it is clear that [the appellant] did not take all reasonable steps.
[97] Primary decision [118].
The Tribunal then identified matters which were said to be 'clear from the hearing before Le Miere J'. The matters specified do not identify steps which the appellant failed to take. It was said that the appellant prepared the grounds of appeal without the benefit of transcript and failed to delete 'at least' ground 2 upon receiving the transcript.[98] However, the Tribunal does not find that it is professional misconduct to prepare a ground of appeal when transcript is not available (which may be necessary in some circumstances). Nor does the Tribunal find that the appellant did not read the transcript when it was available, or became aware that the ground lacked any factual basis after reading the transcript. To characterise the mere failure to delete ground 2 without more as a 'necessary step' would, in effect, be to impose an absolute duty to ensure accuracy.
[98] Primary decision [118].
The Tribunal concluded this part of its reasons by stating that this court's reasons in Huntingdale 'encapsulates [the appellant's] failure to take all necessary steps to ensure that there was a proper factual basis for submissions put to the court'. It said that the appellant's 'failure to do so represents a significant departure from his positive duty to take all necessary steps'.[99]
[99] Primary decision [119] - [120].
However, in reaching that conclusion the Tribunal never identified the steps which the appellant failed to take. The fact that the Tribunal did not consider it necessary to do so counts against the Tribunal having proceeded on the basis that it needed to consider the nature and extent of any careless or negligent omission by the appellant. It suggests that the Tribunal meant what it said when making the earlier statement that counsel had a 'duty to ensure that the facts are accurate'.
Fifthly, the Tribunal's ultimate conclusion was expressed in terms suggesting that it regarded the making of a statement which actually had no proper factual basis as sufficient to establish professional misconduct.
The Tribunal quoted authorities to the effect that gross carelessness may constitute professional misconduct,[100] and said that:[101]
A breach of a practitioner's duty to take all necessary steps to ensure that there is a proper factual basis, may, if sufficiently egregious, constitute professional misconduct.
[100] Primary decision [122].
[101] Primary decision [123].
This statement on its face indicates that the Tribunal appreciated the need to consider the nature and extent of any carelessness or negligence by the appellant in deciding whether he had engaged in professional misconduct. However, the Tribunal never undertakes such an evaluation. Rather, the Tribunal then proceeded to state its conclusion in the following terms:[102]
Courts and tribunals are heavily reliant upon information provided by practitioners in proceedings. They must be able to be confident that the information provided in submissions is scrupulously accurate.
[The appellant's] substantial departure from that standard amounts to professional misconduct. Despite [the appellant's counsel's] best efforts in a difficult case, contrary to [the appellant's] submissions there was no real factual basis for advancing the arguments. (emphasis added)
[102] Primary decision [125] - [126].
Further, when the Tribunal set out the authorities relevant to its determination, it referred to Legal Profession Complaints Committee and Park[103] and quoted '[p]ractitioners must be scrupulously honest and accurate' (emphasis added).[104] The combination of the emphasised words in the Tribunal's reasons and its reference to Park suggest that the Tribunal found that the appellant engaged in professional misconduct because he provided information that was not 'scrupulously accurate'. The last sentence quoted in the preceding paragraph suggests that the issue of professional misconduct was resolved by reference to whether there was a 'real factual basis for advancing the arguments', rather than by reference to the nature and extent of any carelessness or negligence on the appellant's part.
[103] Legal Profession Complaints Committee and Park [2017] WASAT 89.
[104] Primary decision [16].
Conclusion as to ground 1
I return to what this court said in Huntingdale:[105]
As advocacy is a human process, it is inevitable that inadvertent mistakes will be made by counsel from time to time. However, counsel's duty to not mislead the court carries a positive and correlative responsibility to take all necessary steps to ensure that there is a proper factual basis for submissions put to the court. The terms of proposed ground 2 and the oral submissions put in support of that ground represent a significant departure from that duty. (emphasis added)
[105] Huntingdale [39].
That passage indicates that it was open to the Tribunal to conclude that the appellant failed to undertake his professional responsibilities in a manner which constituted professional misconduct or unsatisfactory professional conduct. However, this court was not resolving that issue in Huntingdale. That was an issue which the Tribunal had to determine. Given the way in which the respondent put its case before the Tribunal, that required the Tribunal to determine what steps the appellant failed to take and whether the nature and extent of any negligence or carelessness in failing to take those steps amounted to either professional misconduct or unsatisfactory professional conduct.
The Tribunal's reasons indicate that it did not undertake that evaluative task. In my view, when the Tribunal's reasons are read as a whole, the better view is that it has proceeded on the basis that the appellant had a professional obligation to 'ensure that the facts are accurate'. That statement puts counsel's professional obligations too highly.
In Ord Irrigation Cooperative Ltd v Department of Water,[106] this court observed:
We accept that only an error of law that affects the Tribunal's decision can be the subject of an appeal on a question of law, and that an immaterial error of law will not suffice. It will seldom be appropriate, on an appeal on a question of law, to affirm the decision of the Tribunal where the error involves such a fundamental misunderstanding of its function because the court is of the view that the same result would have followed if the Tribunal's decision had not been infected by that jurisdictional error. It could only be appropriate to do so where the same result is inevitable or there is no reasonable possibility that the error could have had any impact on the reasoning process actually adopted by the Tribunal. (citations omitted)
[106] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331 [130].
While the respondent's case against the appellant in the Tribunal may be regarded as strong, I do not consider a finding that the appellant engaged in professional misconduct to have been inevitable. Once it found that the matters asserted by the appellant were factually incorrect, the Tribunal had to consider what steps the appellant failed to take, and whether the nature and degree of the appellant's carelessness was such as to amount to professional misconduct. That consideration was to be undertaken in a context where it appears that the appellant genuinely held (and continues to hold) a subjective belief that his contentions were correct. There is a difference between a failure to thoroughly and carefully review material for the purpose of ensuring there was a proper factual basis for a contention, as alleged by the Committee, and conducting a thorough and careful review for that purpose but honestly reaching a subjective conclusion that the material does not objectively support. The Tribunal's view that the material did not objectively support a belief which the practitioner genuinely held did not make a finding of professional misconduct inevitable. As Martin CJ observed in Giudice, whether careless provision of false or misleading information is either unsatisfactory professional conduct or professional misconduct will depend upon the nature and degree of negligence or carelessness involved.
Given the evaluative nature of the task, particularly as to whether any breach of duty constitutes professional misconduct or only unsatisfactory professional conduct, the Tribunal's failure to ask and answer the right question could have affected the ultimate result. In my view, there is a reasonable possibility that the error could have impacted on the reasoning process actually adopted by the Tribunal. The appellant is entitled to have the question of whether he engaged in professional misconduct determined by the Tribunal applying the correct legal test as to what constitutes professional misconduct.
For these reasons, I would grant leave to appeal, allow the appeal and set aside the Tribunal's finding that the appellant engaged in professional misconduct.
The powers of this court would then be to either 'make any decision that the Tribunal could have made in the proceeding' or 'send the matter back to the Tribunal for reconsideration'.[107] However, these powers must be exercised consistently with the nature of an appeal on a question of law. As Newnes and Murphy JJA noted in Medical Board of Australia v Woollard:[108]
This court may make substitutive orders under s 105(9) where only one conclusion is open on the correct application of the law to the facts found by the Tribunal. The language of s 105(9) is also wide enough to allow this court to make substitutive orders in other circumstances, although that power must be exercised having regard to the limited nature of the appeal on a question of law only. Thus, for example, if a factual matter were to remain to be decided in consequence of a successful appeal, it may be appropriate for this court to determine the matter upon the uncontested evidence or the primary facts found by the Tribunal. (citations omitted)
[107] State Administrative Tribunal Act 2004 (WA), s 105(9)(b) and (c).
[108] Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32 [214], in a passage adopted by the court in Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368 [205].
In my view, given the failure of the Tribunal to determine the contested question of the steps which the appellant failed to take and the limited factual findings made by the Tribunal, this court cannot properly make its own determination of whether the appellant engaged in professional misconduct. In the circumstances, if the Tribunal's finding of professional misconduct is to be set aside, it is necessary to send the matter back to the Tribunal for reconsideration.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Principal Associate to the Honourable Chief Justice Quinlan4 MARCH 2020
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