Robertson v Legal Services and Complaints Committee - [2025] WASCA 92

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   ROBERTSON -v- LEGAL SERVICES AND COMPLAINTS COMMITTEE [2025] WASCA 92
CORAM:   BUSS P
MITCHELL JA
VAUGHAN JA

HEARD:   9 & 10 APRIL 2025
DELIVERED          :   20 JUNE 2025
FILE NO/S:   CACV 13 of 2024
BETWEEN:   JOHN ANDREW ROBERTSON
Appellant
AND
LEGAL SERVICES AND COMPLAINTS COMMITTEE
Respondent

FILE NO/S: CACV 68 of 2024
(Consolidated by the orders of 2 December 2024)

BETWEEN: JOHN ANDREW ROBERTSON
Appellant
AND
LEGAL SERVICES AND COMPLAINTS COMMITTEE
Respondent

ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: JUDGE K GLANCY, DEPUTY PRESIDENT
MR D AITKEN, SENIOR MEMBER
MR R POVEY, MEMBER

Citation: LEGAL SERVICES AND COMPLAINTS COMMITTEE and ROBERTSON [2023] WASAT 127
File Number            :   VR 46 of 2021
For File No:   CACV 68 of 2024
Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL
Coram:   PRESIDENT GLANCY
MR D AITKEN, SENIOR MEMBER
MR R POVEY, MEMBER

Citation: LEGAL SERVICES AND COMPLAINTS COMMITTEE and ROBERTSON [2023] WASAT 127 (S)
File Number : VR 46 of 2021

Catchwords:

Professions and trades - Legal practitioner - Disciplinary proceedings before State Administrative Tribunal - Findings that the appellant engaged in professional misconduct - Where Tribunal made a recommendation to the Supreme Court that the appellant's name be removed from the roll of practitioners - Whether Tribunal erred in fact in finding that the appellant knowingly made misleading representations to the court and another practitioner - Turns on own facts

Legislation:

Australian Consumer Law (Cth), s 18
Corporations Act 2001 (Cth), s 437A, s 440D, s 444D, s 444E
Interpretation Act 1984 (WA), s 37
Legal Profession Act 2008 (WA), s 402, s 403, s 410, s 421, s 428, s 438, s 439, s 444
State Administrative Tribunal Act 2004 (WA), s 105

Result:

Appeal allowed

Category: B

Representation:

CACV 13 of 2024

Counsel:

Appellant	:	J K Taylor SC and A J C Mossop
Respondent	:	P E Cahill SC and N D Pope

Solicitors:

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

CACV 68 of 2024

(Consolidated by the orders of 2 December 2024)

Counsel:

Appellant	:	J K Taylor SC and A J C Mossop
Respondent	:	P E Cahill SC and N D Pope

Solicitors:

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

Case(s) referred to in decision(s):

Centex Australia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79
Coe v New South Wales Bar Association [2000] NSWCA 13
Frigger v The State of Western Australia [No 2] [2025] WASCA 7
Goldsmith v Legal Services and Complaints Committee [2023] WASCA 136
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56
Lee v Lee [2019] HCA 28; (2019) 266 CLR 129
Legal Profession Complaints Committee and Chang [2019] WASAT 67
Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32
Panegyres v Medical Board of Australia [2020] WASCA 58
The Council of the Queensland Law Society Inc v Wright [2001] QCA 58
Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202

Table of Contents

Summary

Legal framework

Primary facts

The appellant

SC proceedings

Administration of Ironbridge

Appointment of Administrators on 21 July 2017

Deed of Company Arrangement on 15 September 2017

Statutory provisions

Conduct of the SC proceedings from October 2017 to early June 2019

Witness statement of Ian Wallace on 21 March 2018

Discussions about defence in April 2018

Filing of objections and list of tender documents in May 2018

Consent orders and other steps from May to September 2018

Briefing counsel and other steps in October to November 2018

Hiatus from December 2018 to early June 2019

Conduct of the SC proceedings from 26 June 2019 to 16 July 2019

Application to change designation of Ironbridge

Directions hearing on 3 July 2019

Strategic conference hearing on 16 July 2019

Correspondence on 17 July 2019

Correspondence on 18 July 2019

Correspondence from 19 July 2019 to 21 July 2019

Events of 22 July 2019

Events of 23 July 2019 to 6 August 2019

Hearing on 7 August 2019

Complaint and reference

Appellant's evidence

Appellant's evidence-in-chief

Tribunal's approach to the appellant's evidence

This court's role on appeal

Proper inferences as to the appellant's state of mind

Appellant's conduct from October 2017 to early June 2019

Appellant's conduct from 26 June 2019 to 16 July 2019

Whether the evidence established the complaint grounds

Complaint ground 1: acting without authority or instructions

Approach to complaint grounds 2 - 6

Complaint ground 2: email to Mr Penglis of 18 July 2019

Appellant's assumption about s 444D and s 444E of the Corporations Act

The understanding of Mr Penglis, Fletcher Law and Satterley

Inadvertent error

Conclusion as to complaint ground 2

Complaint ground 5: letter to Mr Penglis of 22 July 2019

Section 444E of the Corporations Act

Termination of retainer

Programming orders

Court appearances

Conclusion as to complaint ground 5

Complaint ground 3: letter to associate of 22 July 2019

The Committee's allegations

Announcement of appearances

Signing minutes of consent

Appellant's motivation

Conclusion as to complaint ground 3

Complaint ground 4: affidavit of 22 July 2019

The Committee's allegations

Representations in the affidavit

Tribunal's findings

Conclusion as to complaint ground 4

Complaint ground 6: affidavit of 5 August 2019

The Committee's allegations

Assumptions about the SC proceedings against Ironbridge

Emails to Mr Penglis

Letter to associate of 22 July 2019

Inadvertent error

Conclusion as to complaint ground 6

Grounds of appeal

Ground 1: factual errors

State of mind findings

Ethical consultation finding

Intention findings

Ground 2: adequacy of reasons

Ground 3: procedural fairness

Ground 4: characterisation of the appellant's conduct

Ground 5: finding as to whether appellant's conduct was isolated

Ground 6: inferred error

Appropriate penalty

Orders

JUDGMENT OF THE COURT:

Summary

The appellant is a legal practitioner who was, at all material times, a director of an incorporated legal practice trading as Williams + Hughes. In 2017, Williams + Hughes acted as solicitor for Ironbridge Holdings Pty Ltd (Ironbridge) and its director, Ian Wallace, in proceedings brought by Satterley Property Group Pty Ltd (Satterley) in the General Division of this court (SC proceedings).
Ironbridge was placed into administration on 21 July 2017 and entered into a deed of company arrangement on 15 September 2017 (DOCA). After that time the appellant did a number of things by which Williams + Hughes purported to act for Ironbridge. The appellant also announced his appearance for Ironbridge at two hearings in July 2019.
Another legal practitioner acting for Satterley in the SC proceedings made a complaint to the respondent (Committee) about the appellant's conduct. The Committee referred the matter to the State Administrative Tribunal (Tribunal), identifying six complaint grounds. Complaint ground 1 contended that the appellant engaged in professional misconduct by causing Williams + Hughes to purport to act for Ironbridge in the SC proceedings. Complaint grounds 2 - 6 contended that the appellant engaged in professional misconduct by making various statements to the other practitioner and the court in July and August 2019 about his state of mind when engaging in the conduct the subject of complaint ground 1 which he knew to be misleading and by which he intended to mislead.
On 19 December 2023, the Tribunal found these six complaint grounds to be established.[1] On 8 October 2024, the Tribunal decided to make and transmit a report to the full bench of this court with a recommendation that the appellant's name be removed from the roll of practitioners. The Tribunal immediately suspended the appellant's practising certificate pending the court's determination.[2]
[1] Legal Services and Complaints Committee and Robertson [2023] WASAT 127 (conduct decision).
[2] Legal Services and Complaints Committee and Robertson [2023] WASAT 127(S) (penalty decision).
The appellant now appeals to this court on six appeal grounds against the orders made in the conduct decision and the penalty decision. For the following reasons, those grounds are established in part. Leave to appeal should be granted and the appeal should be allowed. We would substitute more limited findings that the appellant engaged in unsatisfactory professional conduct and professional misconduct. We would substitute a penalty order that the appellant's practising certificate be suspended for a period of 15 months from 8 October 2024.

Legal framework

Part 13 of the Legal Profession Act 2008 (WA) (LP Act) provided for complaints against and discipline of legal practitioners. Under that Act, the then Legal Profession Complaints Committee was given functions in relation to the investigation and determination of complaints against Australian legal practitioners. The LP Act was repealed on 1 July 2022. Since that time, regulation of the legal profession in Western Australia has generally been governed by the Legal Profession Uniform Law Application Act 2022 (WA) (Application Act) and the Uniform Law adopted by that Act. The Application Act establishes the Legal Services and Complaints Committee (Committee) and gives the Committee functions under the LP Act as continued by transitional provisions.[3]
[3] See Application Act pt 16.
The Tribunal proceedings were instituted in June 2021 under the provisions of the LP Act. They continued as if the LP Act had not been repealed pursuant to s 37(1) of the Interpretation Act 1984 (WA).
The central concepts of unsatisfactory professional conduct and professional misconduct are defined in s 402 and s 403 of the LP Act. Relevantly:
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.
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.
As this court noted in Goldsmith v Legal Services and Complaints Committee,[4] it has been held that 'professional misconduct' in s 403 of the LP Act comprehends:[5]
[C]onduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence.
The court in Goldsmith noted a different approach which had been adopted by New South Wales under the Uniform Law, but that it was unnecessary to reconcile that difference in that case. While the appellant reserved his position on that question, nothing turns on that difference in the present case.
[4] Goldsmith v Legal Services and Complaints Committee [2023] WASCA 136 [53] - [56].
[5] Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56, 72.
Section 410 of the LP Act provides for a complaint about an Australian legal practitioner to be made by persons who include any legal practitioner. Subject to presently immaterial exceptions, the Committee is required by s 421 of the LP Act to investigate each complaint. Under s 424 of the LP Act, after the investigation is complete the Committee may refer the matter to the Tribunal under s 428(1) of the LP Act. Under s 428(2) of the LP Act:
The Complaints Committee is not limited under subsection (1) by the terms of any complaint it has received or by the subject matter of any investigation it has conducted and is not required to conduct an investigation before referring a matter to the State Administrative Tribunal.
The Tribunal's jurisdiction is provided for by s 438 of the LP Act, in the following terms:
(1)The State Administrative Tribunal has jurisdiction to make a finding that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct.
(2)If, after it has completed a hearing in relation to a referral under this Part in respect of an Australian legal practitioner, the State Administrative Tribunal is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may -
(a)make and transmit a report on the finding to the Supreme Court (full bench); or
(b)make any one or more of the orders specified in sections 439, 440 and 441.
(3)If the State Administrative Tribunal transmits a report in respect of a legal practitioner to the Supreme Court (full bench) under subsection (2)(a), the Tribunal may, pending the determination of the Supreme Court (full bench), make the following orders -
(a)an order that the Australian legal practitioner's local practising certificate be suspended for a specified period;
(b)an order that specified conditions be imposed on an Australian legal practitioner’s local practising certificate restricting the entitlement of an Australian legal practitioner to practise for a specified period.
(4)Where appropriate, a report forwarded under subsection (2)(a) may include either or both of the following -
(a)a record of the evidence taken at the hearing;
(b)a recommendation that the name of the practitioner be removed from the local roll.
The orders which may be made under s 439 of the LP Act include:
(a)an order that the practitioner's local practising certificate be suspended for a specified period or cancelled[.]
The jurisdiction of the Supreme Court (full bench) is provided for in s 444 of the LP Act in the following relevant terms:
(1)If the State Administrative Tribunal under section 438(2)(a) makes and transmits a report in respect of an Australian legal practitioner to the Supreme Court (full bench), the report is to be taken to be conclusive as to all facts and findings mentioned or contained in the report.
(2)The Supreme Court (full bench) may, upon motion and upon reading the report, and without any further evidence do either or both of the following -
(a)make any order that the State Administrative Tribunal may make under sections 439, 440 and 441;
(b)order the removal from the roll of the name of an Australian legal practitioner who is a local lawyer.
The Tribunal correctly identified the standard of proof which it was required to apply in the following terms:[6]
The Committee bears the onus of proof in relation to the allegations of professional misconduct it makes against the practitioner. The civil standard of proof ('on a balance of probabilities') applies together with the Briginshaw approach, which requires clear and cogent evidence to be adduced by the Committee and for the Tribunal to feel an actual persuasion of the occurrence or existence of relevant facts before it can find the practitioner guilty of professional misconduct (or unsatisfactory professional conduct). The Briginshaw approach applies in disciplinary proceedings, because of the nature and seriousness, and potential consequences, of allegations of wrongdoing (or incompetence) made in such proceedings. As Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361 - 362:
'Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.'
[6] Conduct decision [23] quoting Legal Profession Complaints Committee and Chang [2019] WASAT 67 [8].

Primary facts

There was little dispute as to the primary facts. The main issues in contention in the appeal concern the inferences as to the appellant's state of mind which should be drawn from those primary facts. The following chronological summary of the primary facts is drawn from the Tribunal's findings and documentary evidence before the Tribunal.

The appellant[7]

[7] Conduct decision [31] - [35].

The appellant was admitted to practice in Western Australia in 2004. He began working at Williams + Hughes in approximately 2009. He was appointed a legal practitioner director of Williams + Hughes in 2014. Since that time, his work largely focussed on civil litigation, property law, and wills and estates. He had a busy practice and often worked 12 - 14-hour days and on weekends and rarely took annual leave. In addition to the legal work undertaken on behalf of clients, his role at Williams + Hughes encompassed business development and supervision of more junior practitioners, and involvement in the general administration of Williams + Hughes.

SC proceedings[8]

[8] Conduct decision [49] - [53].

In September 2016, Satterley commenced the SC proceedings. The defendants in the SC proceedings were:[9]
(a)Ironbridge, as first defendant;
(b)Ironbridge's director, Ian Wallace, as second defendant;
(c)Leveque Group Pty Ltd (Leveque) as third defendant and its director, Nicholas Wallace, as fourth defendant; and
(d)Piara Landholdings Pty Ltd (Piara), as fifth defendant.
[9] See the writ of summons in CIV 2599 of 2016 beginning at Green AB 504. The statement of claim (SoC) is indorsed on the writ. The Tribunal misidentified Nicholas Wallace as the third defendant, and Leveque as the fourth defendant, at conduct decision [49], although nothing appears to turn on this.
The claim made by Satterley arose out of the sale of property south of Bunbury by Ironbridge to Piara in 2015. The principal claim was for damages for misleading or deceptive conduct.[10] Ironbridge's property was adjacent to property that was being developed by Satterley and the Department of Housing (Department) in an unincorporated joint venture.[11] Ironbridge's property had been placed on the market under an 'offers invited' process.[12] The Department made an offer for Ironbridge's property on behalf of the joint venture.[13] Ironbridge's selling agent advised that the Department's offer was the preferred proposal.[14] Satterley claimed this amounted to a representation, inter alia, that Ironbridge would sell the property to the Department subject to certain conditions being satisfied; that it would not accept any other offer for the purchase of the property within a defined period; or alternatively that it would offer the Department an opportunity to acquire the property on terms no less favourable than those contained in any other offer.[15] Ironbridge sold the property to Piara without notice to the Department.[16] This was alleged to constitute misleading or deceptive conduct by Ironbridge in trade and commerce in contravention of s 18 of the Australian Consumer Law.[17]
[10] There was also a claim for breach of confidence by Ironbridge or Leveque disclosing confidential information, namely the amount of the Department's offer, to Piara: see SoC pars 33 - 35 (Green AB 515 - 516).
[11] SoC pars 4 - 6 (Green AB 506).
[12] SoC pars 9 - 11 (Green AB 506 - 507).
[13] SoC pars 12 - 13 (Green AB 507).
[14] SoC par 15 (Green AB 508).
[15] SoC par 16 (Green AB 508 - 509).
[16] SoC pars 19 - 22 (Green AB 509 - 510).
[17] SoC par 25 (Green AB 510).

Satterley alleged that it had suffered loss and damage, being the loss of the opportunity, in conjunction with the Department, to purchase the property and profit from the development and sale of the property as subdivided into residential lots.[18]
[18] SoC par 25.2 (Green AB 510).
Satterley alleged that Ian Wallace as director of Ironbridge was involved in Ironbridge's contravention of s 18 of the Australian Consumer Law.[19] Satterley alleged that Leveque, as an agent of Ironbridge and acting through its director Nicholas Wallace, facilitated the making of Piara's offer to purchase the property and that both were involved in Ironbridge's contravention of s 18 of the Australian Consumer Law.[20] Piara was alleged to be involved in the contravention as purchaser of the property who knew that an offer in the order of that made by the Department was the highest offer in the offers invited process.[21]
[19] SoC par 26 (Green AB 510 - 511).
[20] SoC pars 27 - 29 (Green AB 511).
[21] SoC pars 30 - 32 (Green AB 511 - 515).
Satterley claimed damages against all defendants for their contravention of s 18 of the Australian Consumer Law.[22]
[22] SoC prayer for relief (Green AB 516).
Fletcher Law acted as solicitors for Satterley and briefed Steven Penglis (who was subsequently appointed senior counsel in November 2018) to act as counsel for Satterley.
Initially, all of the defendants were represented by DLA Piper and, on 7 October 2016, a combined defence, which denied liability, was filed on behalf of all defendants.[23]
[23] Beginning at Green AB 518.
On 27 January 2017, Williams + Hughes filed a notice of change of solicitors to act for the first to fourth defendants in the SC proceedings. The appellant assumed day to day conduct of the SC proceedings on behalf of those defendants.[24] Also on 27 January 2017, Chalmers Legal Studio commenced acting for Piara as fifth defendant in the SC proceedings.
[24] Green AB 532 - 534.
On 2 March 2017, DLA Piper resumed acting for Leveque and Nicholas Wallace as third and fourth defendants in the SC proceedings.[25]
[25] Green AB 536.
Therefore, by 2 March 2017:
(a)Fletcher Law acted for Satterley as plaintiff in the SC proceedings;
(b)Williams + Hughes acted for Ironbridge and Ian Wallace as first and second defendants in the SC proceedings;
(c)DLA Piper acted for Leveque and Nicholas Wallace as third and fourth defendants in the SC proceedings; and
(d)Chalmers Legal Studio acted for Piara as fifth defendant in the SC proceedings.
On 18 April 2017, Williams + Hughes rendered an invoice to Ironbridge and Ian Wallace.[26]
[26] Conduct decision [84]; Green AB 326.
On 17 July 2017, the parties to the SC proceedings signed a minute of consent orders seeking orders for a trial of a preliminary issue, among other things.[27] Williams + Hughes signed the minute as solicitors for Ironbridge and Ian Wallace as first and second defendants. On that same date, the court made orders in terms of the minute of consent orders.[28] The consent orders provided for the issues of liability of each defendant in the SC proceedings to be tried as a preliminary issue in the action and made detailed orders programming the preliminary issue to trial. They provided for the matter to be listed for a directions hearing on a date not before 2 March 2018 to consider the progress of the SC proceedings and the listing of the SC proceedings for the trial of the preliminary issue.

Administration of Ironbridge[29]

Appointment of Administrators on 21 July 2017

[27] Beginning at Green AB 546.

[28] Conduct decision [85] - [86].

[29] Conduct decision [54] - [56].

On or about 21 July 2017, Ironbridge was placed into administration. Mr Neil Cribb and Mr Greg Dudley of RSM Australia were appointed as administrators.

Deed of Company Arrangement on 15 September 2017

On 15 September 2017, Ironbridge entered into a deed of company arrangement (DOCA), pursuant to s 444A of the Corporations Act 2001 (Cth).[30] The administrators then became the deed administrators.
[30] Green AB 587.
The cover sheet of the DOCA indicates that it was prepared by Williams + Hughes.[31] The signatures of Ian Wallace (both in his personal capacity and as trustee of a family trust) and Carolyn Wallace were witnessed by the appellant.[32] The appellant gave the following unchallenged evidence before the Tribunal as to his involvement in the drafting of the DOCA. He obtained a template precedent for a deed of company arrangement which had been prepared by someone else at Williams + Hughes. The appellant added references to the parties and some definitions, and maybe also some recitals, to the template. The appellant then sent this document to Kott Gunning, the solicitors for the administrators, who completed preparation of the DOCA.[33]
[31] Green AB 584.
[32] Green AB 602.
[33] Primary ts 60 - 61 (Green AB 60 - 61).
The DOCA relevantly provided:
1.During the 'Arrangement Period' from the 'Commencement Date' of the DOCA until its termination the deed administrators:
(a)had the powers of the board of directors and company directors, and the power to continue or otherwise take steps in any proceedings commenced against Ironbridge;[34] and
(b)were responsible for the day-to-day management, control, supervision or administration of Ironbridge's business and affairs.[35]
2.Subject to s 444D and s 444E of the Corporations Act, on and from the Commencement Date of the DOCA, no creditor of Ironbridge may continue with any proceedings against Ironbridge except with the consent of the deed administrators or by order of the court.[36]
3.Subject to s 444D and s 444E of the Corporations Act, the DOCA may be pleaded by Ironbridge against any creditor in bar to any claim by a creditor and each creditor agrees not to take any step in any proceedings pending against Ironbridge at the 'Appointment Date' of 21 July 2017.[37]
4.Following the retirement of Ironbridge's receivers, the deed administrators would realise Ironbridge's assets and distribute the fund as provided for in the DOCA.[38]
5.On completion, Ironbridge is released from all claims but creditors shall have a right to participate in the distribution of the fund, and control of Ironbridge is returned to the directors.[39]
6.The DOCA automatically terminates when the court makes an order for its termination, the creditors pass a resolution prospectively terminating the DOCA or the deed administrators have applied all of the proceeds of the fund available for payment of the creditors.[40]
[34] Clause 5.2(b)(i), (iii) and (x) of the DOCA read with the definitions of 'Arrangement Period' and 'Commencement Date' in cl 1.2 of the DOCA (Green AB 592 - 593).
[35] Clause 5.2(c) of the DOCA (Green AB 593).
[36] Clause 9.1(c) of the DOCA (Green AB 596).
[37] Clause 9.2(c) of the DOCA read with the definition of 'Appointment Date' in cl 1.2 of the DOCA (Green AB 588, 596).
[38] Clause 8.1 of the DOCA (Green AB 595).
[39] Clause 8.3 of the DOCA read with the definition of 'Completion' in cl 1.2 of the DOCA (Green AB 589 - 596).
[40] Clause 11.1 of the DOCA (Green AB 597 - 598).
Clause 1.2 of the DOCA defined a 'creditor' to mean any person having a claim, and relevantly defined 'claim' to mean any debt payable by, or any claim against, Ironbridge which was due on or before the Appointment Date of 21 July 2017 or which may become due as a result of anything done or omitted to be done by or on behalf of Ironbridge on or before the Appointment Date. Satterley was therefore a creditor of Ironbridge under the DOCA.
On 11 October 2017, the appellant informed the other parties to the SC proceedings that Ironbridge had been placed into administration and had subsequently entered into a DOCA. He did so by sending an email in the following terms:[41]
[41] Conduct decision [69]; Green AB 552.
Before the parties start considering the proposed orders can you note, and can we update the court record that, [Ironbridge] is subject to:
•The appointment of administrators (Neil Cribb and Greg Dudley or RSM); and
•A deed of company arrangement (and thus the administrators are now deed administrators).
This should be reflected in the court header of the action.
Thank you.

Statutory provisions

We interpose this identification of the material facts with the following observations as to the provisions of the Corporations Act dealing with the effects of the appointment of administrators and the execution of a deed of company arrangement.
While a company is under administration (which is relevantly from the time an administrator is appointed to the execution of a deed of company arrangement)[42]:
(a)the administrator has control of the company's business, property and affairs and may carry on that business and manage that property and those affairs;[43] and
(b)proceedings in a court against the company cannot be proceeded with except with the administrator's written consent or with the leave of the court, pursuant to s 440D(1) of the Corporations Act.
[42] Corporations Act s 435C.
[43] Corporations Act s 437A(1)(a) and s 437A(1)(b).
Once a deed of company arrangement is executed, it binds all creditors of the company so far as it concerns claims arising on or before the day specified in the deed, pursuant to s 444D(1) of the Corporations Act. Until the deed terminates, such a creditor cannot proceed with any proceedings against the company except with the leave of the court, pursuant to s 444E(1) and (3). The restriction in s 440D and s 444E has been referred to in this matter (not entirely accurately) as a statutory 'stay' of the SC proceedings.

Conduct of the SC proceedings from October 2017 to early June 2019

On or about 30 October 2017,[44] 20 December 2017,[45] and 12 February 2018,[46] the appellant signed minutes of consent orders for Williams + Hughes as solicitors 'for the first and second defendants' in the SC proceedings, each extending the time for complying with various earlier programming orders. These minutes had been prepared by Fletcher Law as solicitor for Satterley.
[44] Green AB 560 - 562.
[45] Green AB 568 - 570.
[46] Green AB 573 - 575.
On 30 October 2017, before the minute prepared by Satterley was agreed, the appellant had proposed an alternative draft minute to the other parties. That draft minute was expressed to be filed on behalf of the second defendant only.[47]

Witness statement of Ian Wallace on 21 March 2018

[47] Green AB 1196 - 1199.

On 9 March 2018, the appellant sent an email advising Fletcher Law that a statement from Ian Wallace would be filed 'next week'. The appellant stated, 'I trust your client will indulge our client until then' (emphasis added).[48] In an email of 15 March 2018, the appellant indicated he was waiting for 'the client to approve the statement' (emphasis added) and asked for agreement to an extension to 19 March 2018.[49] On 20 March 2018, Fletcher Law sent an email indicating that the appellant had advised that 'the first and second defendants intend to file a witness statement in the proceedings' which had not yet been served. Fletcher Law asked whether any party objected to Satterley filing responsive witness statements two weeks 'from the date our office is served with the witness statement of the first and second defendants'. The appellant promptly responded, indicating:[50]
We are expecting our client to call in tomorrow to sign his statement.
There is no objection from our client to the proposal below. (emphasis added)
[48] Green AB 1216.
[49] Green AB 1218.
[50] Green AB 1221.
On 21 March 2018, the appellant filed and served the witness statement of Ian Wallace.[51] The document is said to have been filed on behalf of the second defendant to the SC proceedings. In the court heading, Ironbridge is identified as 'Ironbridge Holdings Pty Ltd (ACN 009 341 011) (Receivers and Managers Appointed) (Subject to a Deed of Company Arrangement)'.[52] In his witness statement, Ian Wallace states that he is a director of Ironbridge and that Ironbridge is subject to a DOCA. A copy of the DOCA was annexed to the witness statement.[53] The statement was certified by the appellant as having been prepared in accordance with the WA Bar Association's best practice guide.[54]
[51] Green AB 1223.
[52] Conduct decision [101].
[53] Conduct Decision [102]; Green AB 582.
[54] Green AB 581.
On 10 April 2018, Williams + Hughes issued an invoice to Ian Wallace only.[55]

Discussions about defence in April 2018

[55] Conduct decision [103]; Green AB 371.

On 20 April 2018, Fletcher Law emailed the other parties attaching a minute of consent orders extending the time for complying with various programming orders. The email also noted that 'there is currently no defence filed by the first and second defendant in these proceedings' and asked whether one was intended to be filed.[56] On 24 April 2018, the appellant responded to this request in the following terms:[57]
[56] Green AB 671.
[57] Green AB 679; Conduct decision [104].
On the point of 'there is currently no defence filed by the first and second defendant in these proceedings' - can you please note:
•The first defendant is subject to a DOCA and the court record ought be amended to reflect this;
•The second defendant filed a defence jointly with defendants 1 - 4 (see attached) - when all parties were represented by the same lawyers; and
•The second defendant does not intend to file any other defence[.]
(emphasis added)
The appellant caused Williams + Hughes to sign as solicitors for the first and second defendants the minute of consent orders prepared by Fletcher Law, which was filed on 30 April 2018.[58]

Filing of objections and list of tender documents in May 2018

[58] Green AB 682 - 684.

In May 2018, the appellant filed various documents required by programming orders expressed to be filed on behalf of the second defendant only:[59]
1.On 9 May 2018, the appellant filed Ian Wallace's response to Satterley's objections to Ian Wallace's witness statement.[60]
2.On 9 May 2018, the appellant filed Ian Wallace's objections to admissibility of the evidence contained in four witness statements, adopting the objections taken by the third and fourth defendants.[61]
3.On 14 May 2018, the appellant filed Ian Wallace's notice of proposed documentary tender.[62]
In each case, reference to only the second defendant was contained in the heading of the document in the tramlines, in the statement of who the document was filed on behalf of and the signature of Williams + Hughes as solicitors for the second defendant. The documents were served by an email sent by the appellant's secretary which referred to the 'Second Defendant's' documents.[63]

Consent orders and other steps from May to September 2018

[59] Conduct decision [106] - [110].

[60] Green AB 685 - 686.

[61] Green AB 687 - 694.

[62] Green AB 696 - 697.

[63] Green AB 1229.

On 23 May 2018, the associate to Archer J (as her Honour then was) advised that the matter had been admitted to her Honour's regular CMC list and directions would be listed on 6 June 2018. A minute of consent orders, prepared by Fletcher Law and signed by Williams + Hughes as solicitors for the first and second defendants, was provided to the associate on 1 June 2018. The orders extended time for complying with various programming orders. [64]
[64] Green AB 707 - 712.
On 13 June 2018, Williams + Hughes issued an invoice to Ian Wallace only.[65]
[65] Green AB 376.
A minute of consent orders further extending the dates for compliance with programming orders, prepared by Fletcher Law and signed by Williams + Hughes as solicitors for the first and second defendants, was filed on 26 June 2018.[66]
[66] Green AB 719 - 721.
On 16 July 2018, Fletcher Law requested a 5-week adjournment of the next directions hearing to enable its counsel to provide advice on evidence.[67] Fletcher Law also filed a minute of consent orders adjourning the next hearing, which was signed by Williams + Hughes on behalf of the first and second defendants.[68]
[67] Green AB 724.
[68] Green AB 725 - 726.
It appears that, in August 2018, the Department objected to producing subpoenaed documents. On or about 8 August 2018, the appellant signed a minute of consent orders making programming orders for resolving the objection.[69] That minute of consent was prepared by Chalmers Legal Studio and signed by Williams + Hughes as solicitors for the first and second defendants. On 15 August 2018, the associate to Archer J inquired as to whether the parties intended these consent orders to read as containing amendments in bold font.[70] On 20 August 2018, the appellant responded indicating that the 'second defendant confirms that the orders are as intended in the bold font' (emphasis added).[71]
[69] Green AB 729 - 730.
[70] Green AB 1258.
[71] Green AB 1256.
Later on 20 August 2018, the associate to Archer J inquired as to whether the parties wished a directions hearing to be vacated and relisted at a later date. On 21 August 2018, the appellant responded indicating that the 'second defendant' (emphasis added) would like that to occur.[72]
[72] Green AB 1264.
On 24 August 2018, the appellant sent a letter advising that 'the Second Defendant' (emphasis added) withdrew its objection to the Department's claim of privilege.[73]
[73] Green AB 1270.
On 24 August 2018, the appellant signed a minute of consent orders vacating hearing dates on 27 August 2018 for resolving objections to the Department's claim of privilege.[74] That minute of consent was prepared by Chalmers Legal Studio and signed by Williams + Hughes as solicitors for the first and second defendants.
[74] Green AB 735, 1271 - 1274.
On 17 September 2018, the appellant sent an email to the other parties indicating that 'our client agrees that the parties should be seeking trial dates' (emphasis added).[75]
[75] Green AB 1281.
On 18 September 2018, consent orders were made for the parties to confer and attempt to agree the length of the trial of the preliminary issue and requiring Satterley to enter the matter for trial by 19 October 2018. The minute of consent orders was prepared by Fletcher Law and signed by Williams + Hughes as solicitors for the first and second defendants.[76]

Briefing counsel and other steps in October to November 2018

[76] Green AB 744 - 750.

On 5 October 2018, the appellant sent an email to Mr Abbott, of counsel, informing him that Williams + Hughes would like to brief him on the matter and asking whether he would have any conflict in acting for Ian Wallace. The relevant parts of that email are as follows:[77]
Can you please check to see if you have any conflict to act in this as counsel for the Second Defendant, Ian Wallace. …
It is a claim nobody expected to go to trial but we are now being asked to have trial counsel confer about the length of the trial and other matters.
…
[Ironbridge] is subject to a DOCA and taking no part.
[77] Conduct decision [131].
In an email to the other parties' solicitors on 16 October 2018, Fletcher Law noted that they had not received a response from the third or fourth defendants. The email also stated:[78]
We understand that the first and second defendants have recently engaged Counsel and that a one week adjournment of tomorrow's directions hearing would provide their Counsel with sufficient time to consider this issue.
Fletcher Law proposed an adjournment to enable conferral to continue and attached a minute of consent orders. The appellant's response to this email was simply to indicate that signed consent orders were attached. The minute was signed by Williams + Hughes as solicitors for the first and second defendants.[79]
[78] Green AB 757 - 758.
[79] Green AB 757 - 761.
On 1 November 2018, the associate to Archer J emailed the parties' solicitors regarding the relisting of a directions hearing.In response to that email, the appellant sent an email to the associate, which was copied to the other parties' solicitors, in which he advised the associate that relisting the directions hearing on 14 November 2018 was acceptable to 'the second defendant'. No mention was made of Ironbridge.[80]
[80] Conduct decision [134] - [135]; Green AB 786 - 787.

On 12 November 2018, the appellant sent a brief to counsel. In that brief he said, relevantly:[81]
We act for … Mr Ian Wallace in the above action.
Ironbridge, (Ian's company and) the seller of the land in the transactions, is subject to a DOCA and taking no part in the action.
[81] Conduct decision [136].
On 27 November 2018, the associate to Archer J advised the parties that the directions hearing listed for the next day was vacated, and that the trial of the preliminary issue was listed for 14 - 27 August 2019.[82]

Hiatus from December 2018 to early June 2019

[82] Conduct decision [137]; Green AB 802.

On 6 December 2018, Williams + Hughes sent an invoice to Ian Wallace. No invoice was sent to Ironbridge.[83]
[83] Conduct decision [138]; Green AB 379.
On 14 January 2019, Fletcher Law emailed the other parties attaching a minute of consent orders extending the time for compliance with various programming orders. On 15 January 2019, the appellant returned the minute, signed by Williams + Hughes on behalf of the first and second defendants.[84]
[84] Green AB 803 - 808.
On 3 April 2019, the appellant provided to the other parties an informal supplementary discovery list which was expressed to be from the second defendant only.[85]
[85] Green AB 1289, 1291.
The evidence does not otherwise indicate significant activity in the SC proceedings between December 2018 and June 2019.

Conduct of the SC proceedings from 26 June 2019 to 16 July 2019

Application to change designation of Ironbridge

On 26 June 2019, the appellant sent an email to the associate to Archer J, stating:[86]
Can we attend to a housekeeping matter of the correct name details of the First Defendant.
It is in receivership and administration and the court record should reflect this.
Please see the attached affidavit that has been lodged.
Can you amend the details of the First Defendant?
The appellant attached his affidavit in support of an application to change the name of the first defendant to 'Ironbridge Holdings Pty Ltd ACN 009 341 011 (Receivers and Managers Appointed) (Subject to a Deed of Company Arrangement).[87] The heading of the affidavit indicated that it was filed on behalf of the 'First and Second Defendants'. The affidavit referred to, and attached, the DOCA.
[86] Green AB 863.
[87] Conduct decision [141] - [142]; Green AB 825 - 827.
On 28 June 2019, the associate to Archer J wrote to the appellant requesting a minute. After the appellant obtained a signed minute of consent from all parties on 28 June 2019, Archer J made orders changing the name of Ironbridge in terms sought.[88] The minute was prepared by Williams + Hughes and signed by that practice on behalf of the first and second defendants.[89]

Directions hearing on 3 July 2019

[88] Green AB 1353.

[89] Conduct decision [143] - [145]; Green AB 863 - 867.

On 2 July 2019, the appellant responded to an email from Fletcher Law seeking approval to a proposed joint response to a query by the court by stating, '[t]his is OK with the 1st + 2nd Defendants'.[90]
[90] Conduct decision [147] - [149]; Green AB 868.
On 3 July 2019, a directions hearing was held before Archer J. The appellant announced his appearance as follows:[91]
May it please the court, your Honour. I appear for Ironbridge and for [Ian] Wallace … the first and second defendants.
[91] Conduct decision [150]; Green AB 870.
At the directions hearing on 3 July 2019, Archer J engaged with counsel in relation to issues concerning the pleadings and a draft list of issues that had been agreed between Satterley and Piara. Most of the exchanges were with counsel other than the appellant. Archer J raised one issue about a pleaded defence with the appellant, which the appellant said he would have to think about.[92] Her Honour then referred to another paragraph of the pleading which indicated the position of Leveque in relation to a paragraph of the statement of claim. This appears to have been the product of the earlier consolidated defence filed on behalf of the first to fourth defendants when they were commonly represented. The following exchange between Archer J and the appellant then took place:[93]
ARCHER J: The third defendant says things. The third defendant denies things. So I don't want that in any pleading that you're putting forward on behalf of the first and second defendants. But what I do want to know is, does the first defendant admit or deny that the third defendant was acting as its agent. That's something you can, usefully, tell me. Not now. But, you know, at a convenient time.
[THE APPELLANT]: I can see where your Honour - paragraph 20, the introductory words 'the third defendant'. That should be on behalf of the first defendant, admitting something there. I can understand the point you're making there. But, again, I will review that.
ARCHER J: You will review that.
[THE APPELLANT]: Yes.
ARCHER J: And I am particularly interested in knowing whether you admit or deny the third defendant was acting as its agent. Because that, 20 really looks like - it does look like it was drafted to defend the third defendant's conduct. It doesn't, really, tell me much about what the first defendant is admitting.
[THE APPELLANT]: Yes, your Honour.
(emphasis added)
[92] Green AB 883 - 884.
[93] Green AB 885 - 886.
On 6 July 2019, the appellant sent an email to the solicitors for the other parties confirming that 'the First and Second Defendants' were adopting the list of issues prepared on behalf of the third and fourth defendants.[94]
[94] Conduct decision [151]; Green AB 897.
On 8 July 2019, the appellant circulated a minute of amended defence which was expressed to be a document prepared on behalf of the first and second defendants. This document, although circulated to the parties, was never filed in the SC proceedings.[95] The title of the document in the tramlines was 'Minute of Amended Defence of the First and Second Defendants'. The cover page indicated that it was filed on behalf of the first and second defendants. The amendments were to delete references to the pleading of the third and fourth defendants, by striking through references to those defendants and inserting an 'and' between references to the first and second defendants. For example, par 1 of the defence was proposed to be amended in the following way:[96]
The first, and second~~, third and fourth~~ defendants admit paragraphs 1 to 3 of the statement of claim.
At the end of the minute, the name of the appellant and Williams + Hughes appeared as 'Solicitors for the First and Second Defendants'.
[95] Conduct decision [152]; Green AB 900 - 915.
[96] Green AB 902.
On 9 July 2019, Williams + Hughes rendered an invoice to Ian Wallace. No invoice was issued to Ironbridge.[97]

Strategic conference hearing on 16 July 2019

[97] Conduct decision [153]; Green AB 383.

On 12 July 2019, the appellant responded to an email from Fletcher Law (which presumably sought details of attendees at the strategic conference hearing on 16 July 2019) stating:[98]
I will appear for the First and Second Defendants.
I have been unable to contact Ian Wallace this afternoon to confirm whether or not he will attend. (emphasis added)
Shortly thereafter, Fletcher Law sent an email to the associate to Archer J, with other parties copied in, advising of the attendees at the hearing. In that list the appellant was described at the 'First and Second Defendant's instructing solicitor'.[99]
[98] Green AB 933.
[99] Green AB 934.
At the hearing on 16 July 2019, the appellant announced that he appeared 'for the first and second defendants'.[100] In response to a question about his amended defence, the appellant indicated that he had a draft which he had to get Ian Wallace to settle and it would be filed by 18 July 2019 as provided for in proposed orders with which he agreed.[101]
[100] Conduct decision [160]; Green AB 939.
[101] Green AB 939 - 940.
When Archer J asked the appellant whether there was anything that he sought to raise, the following exchange took place between her Honour, the appellant and senior counsel for Satterley, Steven Penglis SC:[102]
[102] Green AB 947 - 948.
[THE APPELLANT]: There is actually, your Honour. It is that [Ian] Wallace has the intention to retain our services only up until the point in time as all of the trial directions are complied with and then he intends to appear in person. It's a question of costs, your Honour. It's a long trial which [Ian] Wallace is unable to fund. The further issue is that [Ian] Wallace has also got a clash with another trial that he's involved in in the State of Victoria so he might be away for a day, two at the most.
ARCHER J: No. No, he won't be away. If he's not represented he will not be away during this trial. That is not an option.
[THE APPELLANT]: I have to take some instructions from [Ian] Wallace about that.
ARCHER J: Yes, you will. Thank you.
PENGLIS, MR: Your Honour, there's a further issue about that if I might interrupt. And it's all very well for [Ian] Wallace to represent himself, but the first defendant is a corporation - -
ARCHER J: Yes.
PENGLIS, MR: - - and he can't represent without leave of the court a corporation. In the circumstances I will be opposing for reasons I can go into. It would be inappropriate for him to be representing the corporation. So there's another issue there.
…
[THE APPELLANT]: I will just talk to that. The company is actually in receivership and subject to a DOCA. So the company has got a completed deed of company arrangement which the control has been returned to [Ian] Wallace, but the claim in this matter is effectively captured by the deed of company arrangement. So it's difficult to see how this - the prejudice because there's very little that that company is doing. It's not trading. It's just subject to a DOCA which is effectively dealing with an interest in some property in Victoria, the substance of which [Ian] Wallace is looking to deal with through the other trial proceedings in Victoria.
ARCHER J: Do you resist the proposition that [Ian] Wallace requires leave to represent - -
[THE APPELLANT]: I don't resist that proposition and there would have to be an application filed.
Orders 15 and 16 of the orders made by Archer J on 16 July 2019 required any application by Ian Wallace to act for Ironbridge to be filed by 22 July 2019 and, if such application was filed, provided for Ian Wallace and Satterley to provide submissions and unavailable dates for a special appointment.[103]

Correspondence on 17 July 2019

[103] Conduct decision [161] - [168]; Green AB 956.

At 9.14 am on Wednesday, 17 July 2019, the appellant sent Mr Penglis an email in the following terms:[104]
Regarding the application for [Williams + Hughes] to get off the record for the First Defendant (Ironbridge), we do not actually need to apply because the action is stayed by reason of s 444E of the Corporations Act.
Nobody, to my knowledge, has applied for leave to continue the action against Ironbridge and thus by continuing the action against Ironbridge without leave - it is an abuse of process.
In the event your client applied for leave to continue the action against Ironbridge it would be unlikely to get the leave based on the authorities.
I attach my affidavit sworn [26 June 2019]. As you can see in the DOCA, the definition of 'Creditor' is wide and your client has not been excluded from the DOCA. In the result your client's claim against Ironbridge can only ever result in being admitted to proof to participate in the DOCA when the time for that comes. That time has not come and the DOCA has some time to run.
As you know Ian Wallace can choose to represent himself at any stage of proceedings. He does not need the leave of the trial judge. He can file a notice to this effect whenever he chooses to do so,
This makes Archer J's orders [15 and 16] of yesterday redundant. Can you consider these issues and confirm you agree?
If you do, then can you have your instructor sign the minute and I will circulate it and confirm we have agreed the orders and that we will raise it with the Associate before the orders from yesterday are extracted.
The email attached a minute of consent orders for orders permanently staying the SC proceedings against Ironbridge and vacating orders 15 and 16 of the orders made by Archer J on 16 July 2019. The appellant sent a revised minute, adjusted to take account of the numbering of the extracted orders, at 10.02 am on 17 July 2019.[105] The minute proposed signature by Williams + Hughes as solicitors for the first and second defendants and indicated that it would be filed on behalf of the first and second defendants.[106]
[104] Green AB 961 - 962.
[105] Green AB 961.
[106] Green AB 958 - 959.
At 12.12 pm on 17 July 2019, Chalmers Legal Studio (the solicitors for Piara) sent a letter to Fletcher Law, copied to the other parties, asking whether 'the administrator' of Ironbridge had consented to the continuation of the SC proceedings. Chalmers Legal Studio indicated that, if they did not receive advice by close of business that day, they would 'bring to the attention of the Court the prohibition imposed by section 440D of the Corporations Act in continuing the action against the First Defendant'.[107] At 12.28 pm on 17 July 2019, the appellant responded to Chalmers Legal Studio stating:[108]
We have raised this with [Satterley] earlier today and we are awaiting a reply to the attached orders.
I believe the section of the Corporations Act is [s] 444E as Ironbridge is subject to a DOCA.
[107] Green AB 1442 - 1443.
[108] Green AB 1444.
Mr Penglis responded to the appellant's earlier emails at 12.36 pm on 17 July 2019, in the following terms:[109]
Thank you for your email (which I must confess perplexes me).
Given that this action has proceeded for some 22 months since the date of the DOCA, and without objection, is it now said that the administrators have not consented to the action proceeding?
In any event, I would have thought the proposition is pretty simple. Putting aside quantum, do the Administrators accept both of our client's claims? If so, judgment should be entered by consent as to liability. If not, it would seem pretty clear that the administrators, acting properly, would consent to the action proceeding against the first defendant (as they appear to have done to date), failing which leave would be granted to proceed against the first defendant.
I look forward to hearing from you as soon as possible.
[109] Green AB 963.
At 2.49 pm on 17 July 2019, Fletcher Law responded to the email from Chalmers Legal Studio, with copies to other parties, stating:[110]
Given that this action has proceeded for some 22 months since the date of the DOCA, and without objection, how is it now said that the administrators have not consented to the action proceeding?
Once we have obtained further clarification as to the first defendant's position, we will revert.
[110] Green AB 1459.
Chalmers Legal Studio responded by letter sent at 3.18 pm on 17 July 2019, stating:[111]
Consent under Section 440D of the Corporations Act requires written consent not consent by conduct.
It would appear that [the appellant] has not been acting on the instructions of the Administrators but rather on behalf of [Ian] Wallace.
[111] Green AB 1462.
The appellant responded to Mr Penglis' email at 4.34 pm on 17 July 2019. His email referred to the DOCA and indicated that Williams + Hughes did not act for the deed administrators and that Satterley would need to ask them if they consent. The appellant said that he had 'reached out to the deed administrators and asked if they consent' and the deed administrators did not consent to being joined to the SC proceedings. The appellant's email said:[112]
So you have 2 problems:
1. The wrong party (Ironbridge) is before the court; and
2. The correct party (the Deed Administrators) do not consent to being joined so your client will be required to apply under s 444E of the Act.
Your client's claim against Ironbridge is misconceived and should be stayed immediately.
The appellant's email invited Satterley to sign the consent orders referred to at [76].
[112] Green AB 964.
Mr Penglis responded to the appellant's email at 5.00 pm on 17 July 2019, in the following terms:[113]
Thank you for getting back to me promptly.
I must say, however, that I remain deeply troubled by this matter.
Am I to understand that you are now telling me that you have acted as the solicitor for the first defendant subsequent to appointment of Administrators, not on instructions from the Administrators, but on instructions [from] a director?
Am I to also understand that you are now telling me that the Administrators/Deed Administrators have not known of this Action, have not known that it has continued against the first defendant subsequent to their appointment and have not known that the first defendant has been represented by your firm?
Finally, could you please explain why none of this has been raised until now?
I also take this opportunity to make the observations that, contrary to your suggestion, Ironbridge is not 'the wrong party', the Deed Administrators are not 'the correct party' and it is not necessary for them to be 'joined'.
…
Please get back to me as a matter of urgency as, if the matter is not resolved by 4pm tomorrow, we will make an urgent application for leave to proceed. If the Court agrees it was unnecessary for our client to do so, we will seek the costs of doing so from your client and/or your firm. Copies of our correspondence will be attached to the affidavit in support.
[113] Green AB 965.
At 6.01 pm on 17 July 2019, the appellant sent an email to the deed administrators stating:[114]
Gents
As I understand it you have known about the action.
The action had been progressing at a slow pace until it ramped up this year when trial dates were set.
I have found documents on a cursory review of our DMS where we have told Satterley's lawyers about the DOCA and the Deed. Two such examples are attached.
We were on the record before the DOCA, during the process of the DOCA and since the DOCA. Our instructions from Ian [Wallace] on and from administration and the DOCA were from Ian in his personal capacity.
It is not apparent why Satterley would want to continue this action against Ironbridge/the Deed administrators - when it has known that Ironbridge was in administration and that it was subject to a DOCA.
I will try to confer with Stephen [Penglis] before he gets more hot under the collar about this matter and I will report back to you.
[114] Conduct decision [173]; Green AB 966.
At 6.06 pm on 17 July 2019, the appellant sent an email to Mr Penglis asking for his telephone contact details so that they could confer 'before this matter deteriorates into threats regarding costs'. Mr Penglis responded at 6.28 pm stating that:[115]
Given the nature of the matters I have raised and the fact that we are most likely heading to Court over it, I request you respond to my email in writing.
I will then call you to discuss.
[115] Green AB 967.
The appellant sent Mr Penglis a further email at 6.50 pm on 17 July 2019. In that email he referred to notice of Ironbridge's administration and the DOCA having been given to Fletcher Law, and said that the deed administrators were aware of the SC proceedings. The appellant said that there was no onus 'on my client or Ironbridge' to stay Satterley's claim. He said that the onus was on Satterley to apply for leave to proceed against Ironbridge and it did not do so after being told of the administration and DOCA at a very early stage. The appellant posed the question of what Satterley could possibly hope to achieve by seeking leave to proceed against Ironbridge or applying to join the deed administrators. The appellant concluded by saying that they had an obligation to confer and invited Mr Penglis to call him to do so.[116]
[116] Green AB 968 - 969.
Mr Penglis responded to the appellant's email by email sent at 7.15 pm on 17 July 2019. He indicated that there was no dispute that Fletcher Law were told of the appointment of administrators and the DOCA, but that was not the issue. Mr Penglis said:[117]
The issue is we have proceeded for some 22 months on the basis that, by the first defendant actively continuing to defend the action, the Administrators thus consented to the action proceeding against the first defendant. This will inevitably follow if they have been instructing you or have authorised [Ian] Wallace to do so. If you have not been acting under their instructions or with their authority, then the position may be otherwise.
That is why I want, and my client (and ultimately the Court) is entitled to, clear answers from you to the three questions I have put to you (and which you have not answered). Only then (ie when I know the facts) can I form a view as to how to proceed and thereafter confer with you by telephone before doing so.
May I therefore have your substantive responses to the 3 questions I have asked of you?
[117] Green AB 968.

The appellant responded by email sent at 7.27 pm on 17 July 2019 in the following terms:[118]
[118] Green AB 970.
Please confirm the 3 questions you want answered are as follows:
•[Have I] acted as the solicitor for the first defendant subsequent to appointment of Administrators, not on instructions from the Administrators, but on instructions [from] a director?
•the Administrators/Deed Administrators have not known of this Action, have not known that it has continued against the first defendant subsequent to their appointment and have not known that the first defendant has been represented by your firm?
•why none of this [external administration and the DOCA] has been raised until now?
It is my preference that this is dealt with by a phone call and I am concerned by how you are handling this matter.

Correspondence on 18 July 2019

At 10.04 am on Thursday 18 July 2019, the appellant sent Mr Penglis an email in the following terms:[119]
[119] Green AB 971.
Whilst I am waiting for your clarification of the 3 questions you have for me, can you please review each document we have filed in this action - which I have attached for your ease of reference. I have included the court index so you or your instructors can check off the documents we have filed. You will see each document was filed on behalf of the second defendant.
As you know almost every directions hearing has been adjourned administratively in this matter so there has been no real opportunity to raise the issue of representation of the First Defendant with the court.
I accept that the last appearance before Archer J (which seems to be the first directions hearing I have attended believe it or not) - there was confusion about the issue of us getting off the record for the First Defendant - however that was corrected yesterday when I sent you the orders directing your attention to the stay in s 444E of the Corporations Act.
I have some questions for you and your instructors:
1. Did your instructors tell you we had given your client notice of the First Defendant's administration and the DOCA on 11.10.17?
2. If yes, what did you do about it?
3. What particulars do you rely on to say we have continued to act for the First Defendant?
I maintain that this is best dealt with by a telephone call and not combative email exchanges, I invite you to call me at your convenience.
Attached to this email were Ian Wallace's witness statement and the documents filed in May 2018 referred to at [44] above.
At 12.24 pm on 18 July 2019, the appellant sent an email serving Ian Wallace's amended defence on the other parties.[120] The amendments substituted references to the first, second, third and fourth defendants with references to the second defendant only. It was headed 'Amended Defence of the Second Defendant', indicated that it was filed on behalf of the second defendant and signed by the appellant for Williams + Hughes as solicitors for the second defendant.[121]
[120] Conduct decision [174]; Green AB 972.
[121] Green AB 396 - 409.
At 1.27 pm on 18 July 2019, Mr Penglis responded to the appellant's emails. Although the paragraphs of Mr Penglis' email were not numbered, we have added paragraph numbers to the text quoted below to facilitate understanding of the appellant's response to this email, which is set out at [91] below. With paragraph numbers added, Mr Penglis' email was in the following terms:[122]
[122] Conduct decision [175]; Green AB 975.
1.Thank you for your email.
2.I apologise for not replying sooner, but I have been in conference all morning.
3.I am sorry that you feel that I am being combative. I am not. Rather, I am trying to understand exactly what has happened and don't want any misunderstandings down the track. Also, as I've said, given the nature of the issue, it is appropriate that our communications be in writing. I have also said that, once I know what the facts are, before making any application, I will speak to you.
4.The position is that, in your email dated 11 October 2017, you advised of the appointment of Administrators and of the Deed of Company Arrangement. It did so requesting 'can we update the Court record' and 'header of the action' to reflect that fact. You did not advise that you no longer represented the first defendant or that it would be necessary for us to obtain leave of the Court to proceed on the basis that the Administrators did not consent to the Action proceeding.
5.Thereafter, not only have you remained on the record for the First Defendant, you have taken steps in the action on behalf of the first defendant. Moreover, at no time has any objection been raised to the Action proceeding against the first defendant (that is, not until this week).
6.In this regard it is not correct for you to suggest that you have not taken any step in your capacity as solicitor for the first defendant since the appointment of Administrators and subsequent to the DOCA. On many occasions (see your emails to, amongst others, [Fletcher Law] dated 30 October 2017, 3 February 2018, 25 April 2018, 7 August 2018, 16 October 2018, 15 January 2019) you have signed consent orders as solicitors for both defendants. You have recently appeared before Archer J (twice) on behalf of both defendants. Moreover, even as recently as 2, 6 and 12 July you have sent emails expressly on behalf of the First and Second Defendants.
7.What I want to know is whether you are now telling us that, notwithstanding all of the above, you have not held instructions from the Administrators to act for the First Defendant and that, moreover, the Administrators have not been kept aware that this Action has continued to proceed against, inter alia, the first defendant?
8.I also want to know why, in all the circumstances, you have raised the section 444D/444E point now (as opposed to any time previously in the last 22 months)?
9.I need to know the facts so that I can advise my client what to do.
10.May I please have your urgent reply.
The appellant responded to this email at 3.27 pm on 18 July 2019 in the following terms:[123]
[123] Conduct decision [176]; Green AB 976 - 977.
I refer to your paragraph:
•4 and respond as follows:
•I agree I did not give your instructors or the other parties advice on the effect of Administration and the DOCA.
•I do not accept it is my place to provide advice to other lawyers. It is presumed those lawyers know the law.
•If the inference is I have caused other lawyers to fall into error by my silence, then I do not accept that inference is open.
•I assumed it was common cause that the action against the First Defendant was at an end by the operation of s 444D of the Corporations Act.
•5 as follows:
•Up until the emails this month, each of the emails you have referred to dated 30 October 2017, 3 February 2018, 25 April 2018, 7 August 2018, 16 October 2018 and 15 January 2018 - all relate to consent orders prepared by others. I accept that this should have made clear that we acted only for the second Defendant and that the emails and appearances this month were incorrect.
•When you say I have remained on the record for the first defendant I have been operating on the basis that the first defendant was playing no further part in the action and that this was accepted because of notice of external administration and the DOCA. I had understood this trite legal position was known and accepted by the parties however I did not think to raise it with anyone because of the assumption that the target for your client's claim was [Ian] Wallace and not the pre or post DOCA Ironbridge.
•The position did come to a head this week when I raised getting off the record for both defendants. I did not raise s 444D or s 444E with the court on 16.7.19, however I raised it with you the next day when I was considering the application for [Ian] Wallace to represent Ironbridge - which is unnecessary because of the effect of s 444D.
•Your last sentence of this paragraph asserts that the onus is on me to advise you of the need to obtain the courts leave to proceed against the deed administrators (not the cleansed or new post DOCA version of Ironbridge). Is this your contention? Again I had thought your target was [Ian] Wallace and not trying to look behind a DOCA to get at what assets and undertaking of Ironbridge that is contained in that DOCA.
•6 as follows:
•As noted above the emails between 30.10.17 - 15.1.19 contain consent orders prepared by others and I accept a lack of attention to the detail therein.
•I will correct the record with the court about the two July 2019 appearances by an email to the Associate at the conclusion of our conferral. I also apologise for the error of referring to the first defendant in the July 2019 emails. (original emphasis)
•7 as follows:
•I do not have instructions from the DOCA administrators to act for the First Defendant.
•I never had instructions from the DOCA administrators to act for the First Defendant.
•I do not act for the DOCA Administrators.
•I have not kept the DOCA Administrators aware of this action continuing against the First Defendant as I did not believe it was continuing against them. That is why I have filed no court documents for the First Defendant.
•When I briefed Mr Abbott of counsel I told him that Ironbridge was taking no part in the action.
•As an aside the DOCA administrators have no concern about the post DOCA Ironbridge as it has been returned to the directors to run the company that remains under the control of its directors and receivers KordaMentha. If you combine this with s 444D of the Act then your client cannot maintain the claim against Ironbridge. Your client's claim against the post DOCA Ironbridge should be dismissed.
•8 as follows:
•As noted above I was giving notice of coming off the record for both defendants.
•A review of s 444E and s 444D confirmed there was no need to come off the record for Ironbridge as the claim against it is misconceived and should be dismissed.
•For the last 22 months I assumed your client's target was [Ian] Wallace and the other defendants.
•I reiterate what can your client possibly hope to achieve by joining the DOCA Administrators to this action and proceeding against them?
•I press the questions to you that are in my email of 10.04 am today.
If your client is now contemplating an action to join the DOCA administrators you will need to confer with them. I again request we confer as we need to update the position to the court including that we regard orders 15 and 16 of Archer J's orders of 16.7.19 to be redundant and that we will not be making an application in the terms proposed or at all.
I am content to provide all emails in our chain and all of the attachments that we both rely on for the Court to review. (emphasis added)
This email is the subject of complaint ground 2.
Mr Penglis responded at 6.09 pm on 18 July 2019, in the following terms:[124]
The bottom line is that you have held yourself out as acting for the first defendant post appointment of Administrators/DOCA. You remained on the record, have signed consent orders on behalf of the first defendant, have written correspondence on behalf of the first defendant and appeared on behalf of the first defendant.
You now tell us that you have done all of that without any proper authority to do so.
I note you say 'we will not be making an application in the terms proposed or at all'. May I respectfully suggest that you take urgent advice from independent counsel as to what to do. Having said that, may I also respectfully suggest that you need to make an urgent application to get off the record (which will be opposed) supported by an affidavit making full and frank disclosure to the Court.
I will now get my instructors to write to the Administrators directly and, if they do not consent to the matter proceeding, make an application for leave to proceed (to be heard at the same time as your application). Putting aside whether or not there may be a challenge to the DOCA, the DOCA contemplates a return to creditors. If [Satterley] is not accepted by the Administrators as a creditor, then it needs to establish its claim, and these proceedings are clearly the appropriate method of doing so.
Finally, please clarify what you mean by the statement that the company has been returned to the directors to run the company and that it remains under control of its directors. Under the DOCA, that does not happen until the DOCA has terminated (which, correct me if I'm wrong, has not occurred).
Please let me know what you propose to do as a matter of urgency[.] (emphasis added)

Correspondence from 19 July 2019 to 21 July 2019

[124] Green AB 978.

On Friday, 19 July 2019, Satterley sought the consent of the administrators to continue with the SC proceedings against Ironbridge. That request was refused.[125] One of the administrators wrote to Fletcher Law on 19 July 2019 informing them that, among other things, the administrators first became aware of the SC proceedings on 17 July 2019.[126]
[125] Conduct decision [177].
[126] Conduct decision [72]; Green AB 979 - 982.
In July 2019, the appellant approached Chris Zelestis QC and asked for assistance with respect to a problem which had arisen concerning his conduct in relation to a matter.[127] While Mr Zelestis was not sure of the date of their first conversation, an email sent by the appellant indicates that it must have been at some time on 19 July 2019.[128]
[127] Conduct decision [196].
[128] Green AB 1847.
Mr Zelestis made a statement that was tendered by consent in the Tribunal proceedings,[129] which he was not cross-examined on. The Tribunal made the following findings as to the first conversation between the appellant and Mr Zelestis based on Mr Zelestis' unchallenged evidence:[130]
1.The appellant told Mr Zelestis that he had been acting for a company and a director of the company who were defendants in proceedings and a problem had arisen from the fact that he had continued to hold his firm out as representing the company after he had become aware that the company had executed a DOCA.
2.Mr Zelestis said words to the effect: 'Once you heard about the DOCA presumably you knew that you were no longer acting for the company'. The appellant responded with words to the effect: 'yes, I did'.
3.Mr Zelestis then asked the appellant why he continued to hold his firm out as acting for the company and the appellant responded with words to the effect: 'Nothing substantial needed to be done except for the other defendant for whom I was still acting. I just overlooked the fact that administrators had been appointed'.
4.The appellant asked for Mr Zelestis' assistance in responding to an email to Mr Penglis and Mr Zelestis agreed to help the appellant. Mr Zelestis advised the appellant to provide a complete explanation for his conduct and said anything less would make matters worse. The appellant responded that he understood.
[129] Green AB 453 - 455.
[130] Conduct decision [198] - [201].
At 8.44 am on Saturday, 20 July 2019, the appellant sent Mr Zelestis an email in the following terms:[131]
Thank you for your time on the phone yesterday and for offering to look over my response to Steven Penglis SC.
On Friday the DOCA administrators responded to a letter of Steven's instructors (Fletcher Law) of the same date (which I have not seen) - by the attached letter from Neil Cribb (one of the administrators).
I have prepared the attached draft letter to respond to Steven's email.
I did also [appear] this month (most recently on 16.7.19) and incorrectly announced my appearance for the [first and second] Defendants which needs to be corrected. These were the only 2 court appearances I have ever made.
The law on leave to proceed under s 444E(3) of the Corporations Act against a company in administration - is very clear that the leave cannot be waived. I note that Steven says he intends to oppose [Williams + Hughes] applying to get off the record. I am uncertain of what basis he could oppose.
If you require anything else or to discuss, please contact me[.]
The appellant attached Mr Penglis' email set out at [92] above and a draft letter in response which the appellant had prepared. Also attached to the appellant's email was the letter from the administrators referred to at [93] above, a minute of amended statement of claim filed in the SC proceedings on 12 July 2019 and the amended defence of the second defendant filed in the SC proceedings on 18 July 2019.
[131] Conduct decision [202], Green AB 1847.
At 3.44 pm on Sunday, 21 July 2019, Fletcher Law sent an email to the parties in the SC proceedings indicating that Satterley may make an application for leave to proceed against Ironbridge on the following day, and asking them for unavailable dates for a special appointment.[132]

Events of 22 July 2019

[132] Green AB 983.

At 8.59 am on Monday, 22 July 2019, Mr Zelestis sent the appellant an email attaching the draft letter 'with a few small suggested changes', and asked the appellant to let Mr Zelestis know if he could be of further assistance.[133] Mr Zelestis proposed adding the emphasised words to the following sentence of the draft letter:[134]
As a matter of Law (as I was aware at the time) my firm's [Williams + Hughes] retainer with Ironbridge ended when DOCA administrators were appointed to Ironbridge on 15 September 2017 - which was when different parties took control of Ironbridge and did not instruct me to act.
[133] Green AB 1839 - 1840.
[134] Conduct decision [203].
Probably after Mr Zelestis sent this email on 22 July 2019, Mr Zelestis also indicated to the appellant that, given that he had known all along what the consequences of the DOCA were, that fact should be made clear in his response. The appellant responded that he agreed.[135]
[135] Conduct decision [204].
On 22 July 2019, the appellant sent Mr Penglis a letter in the following terms:[136]
[136] Green AB 1030 - 1031.
I confirm I have discussed the ethical aspects of this matter with Senior Counsel.
I refer to the letter from Neil Cribb of RSM Australia Partners dated 19 July 2019, a joint and several administrator of the deed of company arrangement of the First Defendant (Ironbridge). As you can see from Mr Cribb's letter, I have had no involvement with the DOCA administrators - since and after they were appointed DOCA administrators of Ironbridge. They were also unaware of this action and have played no part in it whatsoever.
As a matter of law (as I understood it), my firm's [Williams + Hughes] retainer with Ironbridge ended when the DOCA administrators were appointed to Ironbridge on 15 September 2017 - which was when different parties took control of Ironbridge and did not instruct me to act. Your instructors were given notice of the appointment of the DOCA administrators on 11 October 2017.
The requirement of your client to apply for leave to proceed against Ironbridge, under s 444E(3)of the Corporations Act, is not something the DOCA administrators could ever consent to, or waive, without the leave of the Court. I refer you to paragraph [5.3A.0515] of the Australian Corporation Law Principles & Practice where it states, relevantly:
'A deed of company arrangement binds the company, its officers and members and the deed's administrator: s 444G. None of them may make or prosecute an application for the winding up of the company, nor may they take or proceed with any action against the company or its property otherwise than with the court's leave and on such conditions as it may impose: s 444E. (original emphasis)'
The reason for this is obvious. Only the court can weigh the impact on creditors and condition the leave - not the administrators nor anyone acting for them.
I accept I have inadvertently signed programming orders prepared by your instructors on 30 October 2017, 3 February 2018, 25 April 2018, 7 August 2018, 16 October 2018 and 15 January 2019. I apologise for the lack of attention to detail in signing those consent orders without scoring through reference to the First Defendant. As you know each substantive court document [Williams + Hughes] has filed in this action, post appointment of the DOCA administrators (e.g. witness statements and pleadings), has been filed only on behalf of the Second Defendant ([Ian] Wallace). I confirm I have only ever taken and acted for and on the instructions of [Ian] Wallace in this action after the appointment of the DOCA administrators.
I also acknowledge that - at the two and only court appearances I have ever made in this action (that both occurred this month) - I incorrectly announced my appearances on behalf of the First and Second Defendant. I will correct this oversight with the Court immediately and request that the Court record be updated to reflect my two appearances were only on behalf of [Ian] Wallace.
[Williams + Hughes] have now filed an application to come off the record for Ironbridge (Application). The Application refers to [Williams + Hughes'] retainer ending upon the appointment of the DOCA administrators and in the supporting affidavit I depose to:
• having had no contact with the DOCA administrators;
• taking no instructions from the DOCA administrators after their appointment; and
• not disclosing (or updating) details of this action to the DOCA administrators.
If you maintain I have acted for the DOCA administrators without proper authority, after I file the Application, then I will file a supplementary affidavit attaching this letter and your response and raise your assertion with the Court - including my apology for signing the consent orders with a lack of attention to detail and the incorrect announcement of the two and only appearances I have ever made in this action (both of which occurred this month).
I remain of the view that [Williams + Hughes] remaining on the record for Ironbdridge, me signing the consent orders incorrectly or the erroneous announcements (this month) of my two and only appearances in this action - will have no impact on the principles of law that are relevant to your client's application for leave to proceed against Ironbridge under s 444E(3) of the Act. (emphasis added)
This letter to Mr Penglis is the subject of complaint ground 5.

This paragraph firstly deposes that the appellant had no contact with and had taken no instruction from the deed administrators. That statement was true. The purpose of making that statement was to support the application by Williams + Hughes to cease to act as solicitors for Ironbridge. The balance of this paragraph of the affidavit explains the reasons why the appellant has had no contact and taken no instructions from the deed administrators. The appellant is not here explaining why he announced his appearance for Ironbridge or signed documents purporting to act as solicitor for Ironbridge.
While the paragraph of the affidavit deposes as to the appellant's state of mind, it does not expressly say when he held that state of mind. It appears to relate to the period since the appointment of the administrators. It does not clearly distinguish between the appellant's state of mind at the time of swearing the affidavit and his state of mind when the deed administrators were appointed.
So far as the paragraph deposes to the appellant's state of mind when the deed administrators were appointed in 2017, it is accurate so far as it conveys that the appellant at that time thought Williams + Hughes was not acting for Ironbridge and that Ironbridge would play no further part in the SC proceedings. It is not accurate so far as it conveys that the appellant considered the status of the retainer in 2017, as that only occurred during the appellant's discussion with Mr Zelestis on 19 July 2019. However, as we have noted above, there is little difference between an understanding that Williams + Hughes had ceased to act for Ironbridge and an understanding that the contract of retainer between Williams + Hughes and Ironbridge had come to an end. This paragraph of the appellant's affidavit is also not accurate so far as it conveys that in 2017 the appellant was of the view that Ironbridge was under a statutory 'stay' pursuant to s 444E(3) of the Corporations Act. The appellant only appreciated the terms of that provision when he looked at it after the hearing on 16 July 2019.
The appellant came to understand that the retainer had been terminated and s 444E(3) operated as a statutory 'stay' in the days prior to his swearing the affidavit on 22 July 2019. Gaining that understanding ought to have been fresh in his mind. However, the distinctions between what the appellant understood in 2017 and what is stated in par 6.1 and par 6.2 of his affidavit are relatively fine. Those distinctions were not material to the purpose for which the appellant swore the affidavit. Further, the understanding conveyed by par 6.1 and par 6.2 of the affidavit did accurately reflect the appellant's understanding at the time the affidavit was sworn. The inaccuracy in the paragraph lies in conflating the appellant's understanding at the time of swearing the affidavit with his state of mind at the time the deed administrators were appointed in 2017. As the appellant accepted in the exchange with Archer J noted at [124] - [125] above, the understanding deposed to at par 6.1 and par 6.2 of the affidavit ought to have been expressed in the present tense.
Given the fineness of the distinction between the appellant's actual past state of mind and that represented by the affidavit, and the immateriality of that distinction to the purpose for which the affidavit was sworn, the terms of the affidavit do not support the inference that the appellant deliberately set out to mislead the court. The appellant's conduct in misstating his past state of mind is to be assessed in a context where the affidavit did not clearly indicate when the appellant held the state of mind and that fact was immaterial to the court's decision to grant the relief sought. The critical facts were that the appellant had not been in communication with the deed administrators, currently regarded the retainer to be at an end and considered that the SC proceedings could not continue against Ironbridge without the court's leave. Williams + Hughes had plainly ceased to act for Ironbridge in these circumstances so that a declaration pursuant to O 8 r 7 of the Rules of the Supreme Court 1971 (WA) was inevitable. Evidence as to the appellant's past state of mind, or the reasons for his lack of contact with the deed administrators could not affect that conclusion. The appellant's inappropriate use of tense in this context does not support an inference that he sought to mislead the court in any material respect.

Tribunal's findings

The Tribunal found that the appellant did not appreciate that his retainer had come to an end or that the action was under a statutory 'stay' under s 444E(3) of the Corporations Act. It found that the affidavit was misleading in stating that those understandings were reasons why he did not obtain instructions from the administrators. That finding was open on the evidence. However, the Tribunal erred in finding that the appellant made those statements intending to mislead the court.[235]

Conclusion as to complaint ground 4

[235] Conduct decision [316] - [318].

For the above reasons, the Tribunal erred in finding that the appellant engaged in professional misconduct by swearing the affidavit and causing it to be filed in court when he knew that it contained statements that were misleading and intended the court to be misled by those statements.[236] The Tribunal's finding that the appellant engaged in professional misconduct by swearing that affidavit and causing it to be filed should be set aside and an order dismissing the complaint substituted.

Complaint ground 6: affidavit of 5 August 2019

[236] Conduct decision [349].

Complaint ground 6 relates to the affidavit sworn by the appellant on 5 August 2019 in opposition to Satterley's application that Williams + Hughes pay the costs of an application for leave to proceed against Ironbridge under s 444E of the Corporations Act. The relevant part of the affidavit is set out at [119] above.

The Committee's allegations

Complaint ground 6 alleged that, on or about 5 August 2019, the appellant engaged in professional misconduct by swearing an affidavit and causing it to be filed in the Supreme Court in circumstances where he knew that the affidavit contained statements that were misleading and intended the Court to be misled by those statements.
The Committee alleged that the appellant's affidavit of 5 August 2019 was misleading in the following material respects:[237]
1.The affidavit represented that the appellant had, since at least 15 September 2017, proceeded on the basis and assumed that the SC proceedings had not continued against Ironbridge by reason of the operation of s 440D, alternatively s 444E, of the Corporations Act. This representation was misleading because the appellant had not proceeded on that basis.
2.The affidavit represented that the appellant had, since at least 15 September 2017, assumed that Mr Penglis, Fletcher Law and Satterley understood and proceeded on the basis that the SC proceedings had not continued against Ironbridge by reason of the operation of s 440D, alternatively s 444E, of the Corporations Act. This representation was misleading because the appellant did not hold that assumption.
3.The affidavit represented that the contents of the appellant's email of 18 July 2019 to Mr Penglis were true and correct, when the email was misleading for the reasons given in relation to complaint ground 2.
4.The affidavit represented that the contents of the appellant's letter of 22 July 2019 to Mr Penglis were true and correct, when the letter was misleading for the reasons given in relation to complaint ground 5.
5.The affidavit represented that the contents of the appellant's letter to the associate to Archer J of 22 July 2019 were true and correct, when the email was misleading for the reasons given in relation to complaint ground 3.
6.The affidavit represented that the appellant's previous email correspondence and appearances by him in the SC proceedings in which he had represented that he continued to act for Ironbridge were a result of inadvertent error. This representation was misleading because this was not the case.

Assumptions about the SC proceedings against Ironbridge

[237] See Annexure A to the Committee's application, pars 44 - 45 (Blue AB 144 - 145).

The first and second particulars of complaint ground 6, referred to at [251] above, concern the following paragraph of the appellant's affidavit:
The reason why [Williams + Hughes] did not apply to get off the record for Ironbridge before it filed the application dated 22 July 2019 is that I had assumed that it was common cause between the parties to this action that:
5.1Ironbridge was in insolvent administration;
5.2 Ironbridge was subject to a DOCA (as I had notified [Satterley's] solicitors on 11 October 2017) and [Satterley] required leave of the Court to proceed with its action against Ironbridge; and
5.3Ironbridge was taking no further part in the proceedings.
On the findings about the appellant's state of mind made above, this paragraph of the appellant's affidavit was true. Contrary to the allegation in the Committee's particulars, the passage does not refer to the appellant's earlier understanding of the operation of s 440D or s 444E of the Corporations Act. It reflects the appellant's general understanding of the position from the time when the deed administrators were appointed, as we have found it at [167] above. It is not directed to the appellant's appearances for Ironbridge in July 2019. Therefore, the first and second particulars of complaint ground 6 are not established.
In any event, the Tribunal did not make any misconduct finding in relation to this aspect of the appellant's affidavit of 5 August 2019 or the first and second particulars to complaint ground 6.[238]

Emails to Mr Penglis

[238] See conduct decision [324] - [327].

The third and fourth particulars of complaint ground 6, referred to at [251] above, concern the following paragraph of the appellant's affidavit:
On 18 July 2019, I emailed Mr Penglis SC. This email forms part of attachment BT-1 to the affidavit of [Fletcher Law's solicitor] affirmed and filed on 22 July 2019. The contents of my email dated 22 July 2019 to Mr Penglis SC (attachment BT-1), insofar as the email contains my explanation for [Williams + Hughes] remaining on the record for Ironbridge, is true and correct.
The reference in this passage to the appellant's 'email dated 22 July 2019 to Mr Penglis SC' is plainly a typographical error, and is intended to refer to the appellant's email of 18 July 2019. That email, rather than the appellant's letter to Mr Penglis of 22 July 2019, was attachment BT‑1 to the affidavit of Fletcher Law's solicitor.[239] It follows that the appellant's affidavit did not adopt the contents of his letter to Mr Penglis of 22 July 2019 and the fourth particular to complaint ground 6 was not established.
[239] See Green AB 1035 - 1036.
We have found that the appellant's email to Mr Penglis of 18 July 2019 was not knowingly misleading in any of the respects alleged by the Committee in respect of complaint ground 2. It follows that the third particular to complaint ground 6, referred to at [251] above, is also not established.
Based on its finding that the contents of the email from the appellant to Mr Penglis dated 18 July 2019 was misleading, the Tribunal concluded that the statement in the affidavit that the explanation given in that email was 'true and correct' was itself false and misleading.[240] This finding was in error for the reasons explained above.

Letter to associate of 22 July 2019

[240] Conduct decision [325].

The fifth particular of complaint ground 6, referred to at [251] above, concern the following paragraph of the appellant's affidavit:
On 22 July 2019, I wrote to the Associate to the Honourable Justice Archer, and caused a copy of this letter to be sent to the solicitors for the other parties. Attached hereto and marked 'JAR1' is a true copy of that letter.
The contents of my letter being 'JAR1' are true and correct.
For the reasons explained in dealing with complaint ground 3, the appellant's letter to the associate to Archer J of 22 July 2019 was misleading so far as it represented that, when he announced his appearances in the SC proceedings on 3 July 2019 and 16 July 2019, the appellant had been operating on the assumption that Williams + Hughes' retainer with Ironbridge was at an end. We have found that, when he sent the letter, the appellant knew the representation was misleading and intended to mislead the court when making the representation.
The appellant's affidavit of 5 August 2019 was sworn only two weeks after the letter was sent and less than three weeks after the appellant's appearance before Archer J on 16 July 2019. The events must have been fresh in his mind. Further, the only conceivable purpose of attaching and adopting the appellant's letter to the associate could be to explain why he had announced his appearance for Ironbridge at the hearings in July 2019. That issue was material to the possible exercise of the court's costs discretion. The compelling inference is that the appellant knew that the representation in the letter was false when he swore an affidavit deposing that the contents of that letter were true and correct. He did so intending to mislead the court and deflect criticism for his conduct.
The Tribunal noted its finding that that the state of the appellant's knowledge was not as he had set out in the letter to the associate of 22 July 2019 which was attached to his affidavit of 5 August 2019 as attachment JAR1. The Tribunal found that the statement in the affidavit that the contents of that letter were true and correct was also false and misleading.[241] The Tribunal found that the only purpose for making the misleading statements in the affidavit was to deflect criticism of his earlier conduct.[242] These findings were correctly made.

Inadvertent error

[241] Conduct decision [326].

[242] Conduct decision [327].

The sixth particular of complaint ground 6, noted at [251] above, alleges that the appellant's affidavit represented that the appellant's previous email correspondence and appearances by him in the SC proceedings in which he had represented that he continued to act for Ironbridge were a result of inadvertent error. The text of that affidavit is set out at [119] above. It does not contain a representation in those terms. To the extent that this particular relates to the express adoption of statements made in earlier correspondence, it does not add anything to the other particulars of complaint ground 6 discussed above.

Conclusion as to complaint ground 6

The appropriate order in relation to complaint ground 6 is that, on 5 August 2019, the appellant engaged in professional misconduct by swearing an affidavit in the SC proceedings which deposed that the contents of his letter to the associate to Archer J of 22 July 2019 were true and correct, when the appellant:
(a)knew that the letter represented that, when he announced his appearances in Supreme Court proceedings on 3 July 2019 and 16 July 2019, the appellant had been operating on the assumption that Williams + Hughes' retainer with Ironbridge was at an end;
(b)knew that this representation was misleading; and
(c)intended to mislead the court and deflect criticism for his conduct.

Grounds of appeal

We turn to identify the extent to which the grounds of appeal succeed in light of the above conclusions.

Ground 1: factual errors

Appeal ground 1 contends that the Tribunal erred in making the following findings of fact:[243]
[243] See appeal ts 9 - 11.
1.The 'state of mind findings' that:
(a) the appellant held a general understanding of insolvency law that actions do not proceed against companies which are in administration but failed to apply that knowledge to the SC proceedings;
(b)the appellant did not understand that the SC proceedings were 'stayed' against Ironbridge or that there was an impediment to it proceeding; and
(c)the appellant regarded himself as continuing to act for Ironbridge in the SC proceedings prior to 17 July 2019.
2.The 'ethical consultation finding' that the appellant was not being honest in his communications with Mr Zelestis about his knowledge at the relevant time.
3.The 'intention findings' that the appellant intended Mr Penglis and the court to be misled by the various statements in complaint grounds 2 - 6.

State of mind findings

We have concluded that the Tribunal erred so far as its state of mind findings identified at [266.1] above related to the period prior to 26 June 2019. However, those findings represent a fair characterisation of the appellant's state on mind in the period from 26 June 2019 to 16 July 2019 and are consistent with the inferences we have drawn in relation to that period.

Ethical consultation finding

The appellant disclosed to the Tribunal his communications with Mr Zelestis in which he sought advice on how to respond to the correspondence received from Mr Penglis. The Committee alleged that the appellant did not frankly explain the circumstances to Mr Zelestis. The Committee therefore contended that the guidance offered by Mr Zelestis could not mitigate the appellant's subsequent conduct (which was intentionally misleading) in corresponding with the court and Mr Penglis and in filing the affidavits.[244]
[244] Green AB 30.
The Tribunal found that the appellant:[245]
(a)did not inform Mr Zelestis that he had, on 8 July 2019, prepared and circulated the minute of amended defence referred to at [70] above on behalf of the first and second defendants;
(b)did not explain to Mr Zelestis 'the details of his appearances' before Archer J on 3 July 2019 and 16 July 2019; and
(c)informed Mr Zelestis that, in some cases, his staff had signed the minutes of consent order for the first and second defendants when in fact the appellant did so himself.
[245] Conduct decision [216].
The Tribunal found that the appellant therefore did not give Mr Zelestis a full account of the actions which he had taken in the SC proceedings which might have been seen to convey to others an impression that he was acting for Ironbridge after the administrators had been appointed.[246]
[246] Conduct decision [217].
After questioning the view Mr Zelestis might have taken if he had been given a full account, the Tribunal concluded:[247]
The fact that the [appellant] did not give a full account, in our view, tells against a finding that he was being honest in his communications with Mr Zelestis KC about his knowledge at the relevant time. We find to the contrary.
[247] Conduct decision [221].
In our view, it was not reasonably open to the Tribunal to infer from omissions in the account given by the appellant to Mr Zelestis that he acted dishonestly in providing that account. The appellant approached Mr Zelestis for guidance after receiving aggressive and implicitly threatening correspondence from senior counsel. The appellant had no motive to lie to Mr Zelestis, as the value of Mr Zelestis' guidance would depend upon the accuracy and completeness of the facts the appellant provided to him. The appellant was under no obligation to give a 'full account' of the matter to Mr Zelestis. The appellant did convey the essence of the matters about which Mr Penglis was complaining, including his actions in announcing his appearance for, and signing minutes of consent orders on behalf of, Ironbridge. The omission of details such as:
(a)the circulation of a draft defence that was never filed;
(b)the appellant's absence of objection to the court making orders for the filing of an application for Ian Wallace to act for Ironbridge;[248] and
(c)whether the appellant personally signed the relevant minutes of consent orders,
provide an inadequate foundation for a finding that the appellant acted dishonestly in these circumstances.
[248] It would appear from the Tribunal's reference to evidence at conduct decision [212] that this may have been one of the 'details' of the appellant's appearances before Archer J noted at [269(b)] above.

The Tribunal's finding that the appellant acted dishonestly in his communications with Mr Zelestis was not the subject of an order making a finding of professional misconduct. That reflects the fact that such dishonesty was not the subject of the Committee's application to the Tribunal. However, in our view the Tribunal did err in making the dishonesty finding which formed part of the Tribunal's report to the Supreme Court (full bench) under s 438(2)(a) of the LP Act.

Intention findings

We have concluded that the Tribunal was correct to find that the appellant intended to mislead the court in:
(a)representing in his letter to the associate to Archer J on 22 July 2019 that, when he announced his appearances in the SC proceedings on 3 July 2019 and 16 July 2019, he had been operating on the assumption that Williams + Hughes' retainer with Ironbridge was at an end; and
(b)deposing in his affidavit sworn 5 August 2019 that the contents of this letter to the associate of 22 July 2019 were true and correct.
Appeal ground 1 is not established to the extent that it seeks to impugn these findings as to the appellant's intention in relation to complaint grounds 3 and 6.
We have found that the other representations alleged by complaint grounds 2 - 6 were either not made, were not established by the evidence to be false or were not intended to mislead. Appeal ground 1 is established to the extent that it seeks to impugn the dishonesty findings in relation to the other representations in those complaint grounds.

Ground 2: adequacy of reasons

Appeal ground 2 contends that the Tribunal erred in failing to give adequate reasons for the intention findings. There is no merit in this ground. As the appellant's written submissions accept, the essential requirement of reasons is to explain the Tribunal's actual path of reasoning in sufficient detail to enable a court to see whether the decision is vitiated by error.[249] That has been achieved in the present case, in which we have identified error in a number of those findings.

Ground 3: procedural fairness

[249] Centex Australia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79 [103].

Appeal ground 3 contends that the Tribunal failed to accord procedural fairness to the appellant by failing to give him notice of, or an opportunity to respond to:[250]
[I]ts finding at [conduct decision] [232] and [306] that the Appellant had knowledge or understanding that actions do not proceed against companies which are in administration but did not 'apply' that knowledge or 'consider the application of the law' to the SC Proceeding before 17 July 2019.
[250] Appellant's grounds of appeal, White AB 12.
We agree with the Committee's submissions that this ground is not established. The Tribunal's finding that the appellant had knowledge or understanding that actions do not proceed against companies which are in administration reflected the appellant's evidence as to his 'General Understanding'. The central issue in the Tribunal proceedings was whether that was the basis on which the appellant proceeded when he purported to act for Ironbridge. The Tribunal's finding resolved that issue against the appellant. While we have found the Tribunal to have erred in making that finding, it was not a finding which the appellant had no reasonable opportunity to address, or which involved any practical unfairness to the appellant. The Tribunal did not fail to accord procedural fairness to the appellant by failing to alert the appellant to the possibility that the finding, which resolved the central issue of the appellant's state of mind, might be made before the Tribunal made the finding.

Ground 4: characterisation of the appellant's conduct

Appeal ground 4 contends that the Tribunal erred in law in characterising the appellant's conduct the subject of complaint ground 1 as professional misconduct. For the reasons explained at [189] - [191] above, ground 4 is established.

Ground 5: finding as to whether appellant's conduct was isolated

Appeal ground 5 contends that the Tribunal erred in fact in the penalty decision in concluding that the appellant's conduct was not isolated. The Tribunal's finding was made in the following terms:[251]
Contrary to the [appellant's] submission, we do not accept that the [appellant's] conduct as found in [the misconduct findings made in relation to complaint grounds 1 - 6] can be characterised as an isolated error of judgment. While it all arose in the context of one piece of litigation, and, for the most part, involved the [appellant] telling the same untrue version of events in multiple contexts, the false explanation for his conduct was repeated in affidavits filed in the court, in his communications with the court and in his communications with [Satterley] on different occasions. In that sense, the conduct cannot be regarded as isolated or a 'one-off', even though it occurred in the course of just over a two-week period.
[251] Penalty decision [34].
As can be seen from the above passage, the Tribunal's conclusion was based on its earlier findings that the appellant had engaged in professional misconduct in the manner alleged by complaint grounds 1 - 6. We have found many of those findings of professional misconduct to have been made in error. Those errors in the conduct decision plainly infect the above finding of the Tribunal. Appeal ground 5 is established to that extent.

Ground 6: inferred error

Appeal ground 6 contends that the Tribunal erred in law in imposing a penalty that was manifestly excessive. The appellant contends that error should be inferred from a penalty decision which was unreasonable or plainly unjust, on the basis that in all the circumstances suspension rather than striking off would be the appropriate response.
This ground of appeal is misconceived, as the Tribunal did not relevantly impose any penalty on the appellant. Having found the appellant to be guilty of professional misconduct, the options for the Tribunal were to make and transmit a report on the finding to the Supreme Court (full bench) or itself to impose one or more of the penalty orders referred to in s 439, s 440 and s 441 of the LP Act. In this case, the Tribunal adopted the former course. On reception of that report, the imposition of a penalty, either by way of order made under s 439, s 440 and s 441 of the LP Act or an order for removal of the appellant's name from the local roll of persons admitted to the legal profession under the LP Act,[252] will be a matter for the full bench. The recommendation of the Tribunal under s 438(4)(b) of the LP Act is not binding on the full bench and is not a precondition to the full bench making an order for removal of the appellant's name from the roll.
[252] See LP Act s 444(2) read with s 28(1).
Although, in this respect, ground 6 is misconceived, had it been necessary to do so we would have approached the ground on the basis that it alleged discretionary error on the ground that the order to make and transmit a report to the full bench with a recommendation that the appellant's name be removed from the roll of practitioners was unreasonable or plainly unjust. However, the challenged order was made as a consequence of the Tribunal's findings of professional misconduct, many of which we would set aside. In those circumstances, ground 6 falls away. Instead we turn to consider the consequential orders which should be made on the appeal.

Appropriate penalty

We have found that many of the Tribunal's orders finding that the appellant engaged in professional misconduct should be set aside. The following orders made by the Tribunal on 8 October 2024 should also be set aside as a consequence of the setting aside of the misconduct findings:
1.Pursuant to s 438(2)(a) and s 438(2)(b) of the [LP Act], the Tribunal is to make and transmit a report to the Supreme Court (full bench) with:
(a)a record of the evidence taken at the hearing; and
(b)a recommendation that the name of the [appellant] be removed from the roll of practitioners.
2.Pursuant to s 438(3)(a) of the LP Act, the [appellant's] practising certificate is suspended with immediate effect pending the determination of the Supreme Court (full bench).
3.Pursuant to s 87(2) of the [SAT Act], the [appellant] pay the [Committee's] costs fixed in the sum of $66,017.78, such costs to be paid to the Legal Practice Board of Western Australia within 30 days of this order or as otherwise agreed between the parties.
The question is then whether this court should send the matter back to the Tribunal for reconsideration of the question of penalty under s 105(9)(c) of the SAT Act, or should make any decision that the Tribunal could have made in the Tribunal proceedings under s 105(9)(b) of the SAT Act. The orders which the Tribunal could make after finding the appellant was guilty of unsatisfactory professional conduct or professional misconduct, under s 438(2) of the LP Act, are to:
(a)make and transmit a report on the finding to the Supreme Court (full bench); or
(b)make any one or more of the orders specified in, relevantly, s 439 and s 441 of the LP Act.
The limits on the power conferred by s 105(9) of the SAT Act where the appeal is on a question of law were identified by this court in Medical Board of Australia v Woollard.[253] Those limitations are not applicable in an appeal on questions of fact and law pursuant to s 105(13) of the SAT Act. It is appropriate for this court to consider for itself whether making orders specified in s 439 and s 441 of the LP Act is the appropriate exercise of the discretion.[254]
[253] Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32 [214], [273] - [274].
[254] See Panegyres [85] ‑ [88].
Different considerations might arise in relation to the transmission of a report to the full bench, given the provision in s 444 of the LP Act for the report of the Tribunal (rather than the reasons of this court) to be conclusive as to all facts and findings mentioned or contained in the report. It is unnecessary for us to consider that issue as we consider an order suspending the appellant's local practising certificate, under s 439(a) of the LP Act, to be the appropriate penalty for the findings of unsatisfactory professional conduct and professional misconduct which we would substitute.
The Tribunal accepted the Committee's submission that the conduct the subject of complaint ground 1, even when categorised as professional misconduct, did not require the appellant to be suspended or referred to the full bench.[255] The far more serious conduct is the intentional making of a misleading representation in the appellant's letter to the associate to Archer J of 22 July 2019 and, further, in deposing that the contents of that letter were true and correct in his affidavit sworn 5 August 2019.
[255] Penalty decision [24].
The seriousness of knowingly misleading a court is explained by the decision of this court in Vogt v Legal Practitioners Complaints Committee:[256]
For a practitioner, in the course of his or her practice, intentionally to mislead anyone is a serious breach of the practitioner's professional duty. But the finding in the present case that the appellant intentionally misled the court is of particular significance. It goes to the very heart of a practitioner's duty as an officer of the court and therefore to the proper administration of justice. We would respectfully adopt what was said in that respect by the Queensland Court of Appeal in The Council of the Queensland Law Society Inc v Wright [2001] QCA 58, a case involving a solicitor who (among other things) intentionally misled a court in relation to an affidavit relied upon to resist a summary judgment application and as to the availability of a witness. The court said:
'A practitioner's duty to the court arises out of the practitioner's special relationship with the court; it overrides the duties owed by a practitioner to clients or others … The lawyer's duty to the court includes candour, honesty and fairness. … The effective administration of the justice system and public confidence in it substantially depends on the honesty and reliability of practitioners' submissions to the court. This duty of candour and fairness is quintessential to the lawyer's role as officer of the court; the court and the public expect and rely upon it, no matter how new or inexperienced the practitioner. Breaches such as this are hard to detect and once established to the requisite standard are deserving of condign punishment, not only as a deterrent but also to reassure the public that such conduct on the part of lawyers will not be tolerated.' (footnotes omitted)
[256] Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 [61].
Misleading the court with a knowingly false statement in an affidavit is particularly serious. Knowingly making a statement under oath that is false in a material particular is an offence against s 169 of the Criminal Code (WA) for which a term of imprisonment may be the appropriate sentence.[257] As Mason P observed in Coe v New South Wales Bar Association,[258] in a passage cited by the Tribunal in the penalty decision,[259] it would be a truly exceptional case where a practitioner who knowingly swears a false affidavit that is filed in court could be regarded as fit to practise.
[257] See the recent decision of this court in Frigger v The State of Western Australia [No 2] [2025] WASCA 7.
[258] Coe v New South Wales Bar Association [2000] NSWCA 13 [10].
[259] Penalty decision [22].
However, as Murphy and Beech JJA recognised in Khosa v Legal Profession Complaints Committee,[260] the court's, and the Tribunal's, jurisdiction with respect to the regulation of the profession is not to be exercised for the purpose of punishing the practitioner concerned, but for the protection of the public and the maintenance of the reputation and standards of the legal profession. Further, a finding of unfitness to practise does not necessarily mean that a practitioner is permanently unfit to practise. Where the conclusion is reached that a practitioner is presently unfit to practise, a choice may be made between suspension and striking off.[261] Further, as is illustrated by the decision in Vogt (where a period of suspension was imposed on a practitioner who knowingly made a false statement in an affidavit), striking off is not an inevitable consequence of knowingly making a false statement in an affidavit.
[260] Khosa v Legal Profession Complaints Committee [2017] WASCA 192 [188].
[261] Khosa [191] - [195].
The appellant's conduct in knowingly making the false representation in the letter to the associate to Archer J on 22 July 2019, and in deposing that the contents of that letter were true and correct in the affidavit sworn on 5 August 2019, is very serious professional misconduct. It justifies a finding that the appellant is not a fit and proper person to engage in legal practise. However, it does not lead us to conclude that the appellant is permanently unfit to practice so as to justify striking his name from the roll of local practitioners. The conduct occurred almost six years ago, in circumstances where the appellant was placed under considerable pressure by Mr Penglis' allegations. It did not occasion any loss to, or confer any significant advantage upon, any person. There is nothing to suggest that the appellant has engaged in similar conduct before or since. While the appellant has not accepted responsibility for his conduct, and his lack of insight and remorse emphasises the need for personal deterrence, a significant period of suspension will demonstrate the seriousness of the appellant's conduct and operate as a personal and general deterrent.
In our view, the appropriate penalty is suspension of the appellant's local practising certificate for a period of 15 months. As the appellant has been under suspension since the Tribunal's penalty orders were made on 8 October 2024, it is appropriate for the 15-month suspension period to begin from that date.

Orders

For the above reasons, leave to appeal should be granted, the appeal should be allowed, the orders of the Tribunal made on 12 February 2024 and 8 October 2024 should be set aside and the following orders should be substituted:
1.Between 11 October 2017 and 16 July 2019, the appellant engaged in unsatisfactory professional conduct by:
(a)causing Williams + Hughes to purport to act as the solicitor of record for a defendant to Supreme Court proceedings when Williams + Hughes was not authorised to do so and had no instructions to do so; and
(b)purporting to act as solicitor and counsel for a defendant to Supreme Court proceedings when he was not authorised and had no instructions to do so.
2.On 22 July 2019, the appellant engaged in professional misconduct by preparing and sending a letter to the associate to Archer J which represented that, when he announced his appearances in Supreme Court proceedings on 3 July 2019 and 16 July 2019, he had been operating on the assumption that Williams + Hughes' retainer with the first defendant was at an end, when the appellant:
(a)knew the representation was misleading; and
(b)intended to mislead the court in making the representation.
3.On 5 August 2019, the appellant engaged in professional misconduct by swearing an affidavit in Supreme Court proceedings which deposed that the contents of his letter to the associate to Archer J of 22 July 2019 were true and correct, when the appellant:
(a)knew that the letter represented that, when he announced his appearances in Supreme Court proceedings on 3 July 2019 and 16 July 2019, the appellant had been operating on the assumption that Williams + Hughes' retainer with the first defendant was at an end;
(b)knew that this representation was misleading; and
(c)intended to mislead the court and deflect criticism for his conduct by swearing this affidavit.
4.The grounds contained in annexure A to the Committee's application dated 18 June 2021 are otherwise not established.
5.The appellant's practising certificate is suspended with effect from 8 October 2024 for a period of 15 months.
We would hear from the parties as to the precise form of these orders, and on question of the costs of the proceedings before the Tribunal and this court.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Hon Justice Mitchell
19 JUNE 2025