Smith v New South Wales Bar Association
[2014] WASAT 112 (S)
•16 DECEMBER 2014
LEGAL PROFESSION COMPLAINTS COMMITTEE and WELLS [2014] WASAT 112 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 112 (S) | |
| LEGAL PROFESSION ACT 2008 (WA) | |||
| Case No: | VR:176/2013 | 26 NOVEMBER 2014 | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) MS F CHILD (MEMBER) MR M HARFORD (SENIOR SESSIONAL MEMBER) | 16/12/14 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Report on Tribunal's findings made and transmitted to Supreme Court (Full Bench) with recommendation that the name of the practitioner be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008 (WA) Suspension of practitioner's practising certificate pending the determination of the Supreme Court (Full Bench) with effect from seven days after publication of this decision The practitioner to pay the Legal Profession Complaints Committee's costs in terms of disbursements in the amount of $19,800 by 27 February 2015 | ||
| B | |||
| PDF Version |
| Parties: | LEGAL PROFESSION COMPLAINTS COMMITTEE GAVIN GEORGE WELLS |
Catchwords: | Vocational regulation Legal practitioners Professional misconduct Penalty Report on findings to Supreme Court (Full Bench) with a recommendation that name of practitioner be removed from Roll of Practitioners Interim suspension from practice pending determination of Supreme Court (Full Bench) Costs |
Legislation: | Legal Practitioners (State Administrative Tribunal) Determination 2010 Legal Profession Act 2008 (WA), s 403, s 438, s 438(2)(a) State Administrative Tribunal Act 2004 (WA), 87(1), s 87(2) |
Case References: | A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253 A Solicitor v The Council of the Law Society of NSW (2004) 216 CLR 253 Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 Barwick v Council of the Law Society of NSW [2004] NSWCA 32 Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54 Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62 Craig v The Medical Board of South Australia [2001] SASC 169 Grey v Harrison [1997] 2 VR 359 Law Society (NSW) v Foreman (1994) 34 NSWLR 408 Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Law Society of New South Wales v Walsh [1997] NSWCA 185 Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 Legal Practitioners Conduct Board v Kerin [2006] SASC 393 Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37(S) Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S) Legal Profession Complaints Committee and in de Braekt [2013] WASAT 124 Legal Profession Complaints Committee and Leask [2010] WASAT 133 Legal Profession Complaints Committee and Wells [2014] WASAT 112 Legal Profession Complaints Committee v Brickhill [2013] WASC 369 Legal Profession Complaints Committee v Lashansky [2007] WASC 211 Legal Profession Complaints Committee v Love [2014] WASC 389 Legal Profession Complaints Committee v Masten [2011] WASC 71 Legal Profession Complaints Committee v Segler [2014] WASC 159 Legal Profession v O'Halloran [2013] WASC 430 LPCC v Pepe [2009] WASC 39 Medical Board of Western Australia and Roberman [2005] WASAT 81 (S); (2005) 39 SR (WA) 47 New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 New South Wales Bar Association v Evatt (1968) 117 CLR 177 NSW Bar Association v Hamman [1999] NSWCA 404 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 Quinn v Law Institute of Victoria [2007] VSCA 122 Re A Practitioner (1984) 36 SASR 590 Re H (a Barrister) [1981] 1 WLR 1257 Re Maraj (a Legal Practitioner) (1995) 15 WAR 12 Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 Stirling v Legal Services Commissioner [2013] VSCA 374 |
Orders | On the application heard on 26 November 2014 by the President, Justice Curthoys, Member F Child and Senior Sessional Member M Harford on 16 December 2014, it is ordered that: ,1. Pursuant to s 438(4)(b) the Tribunal makes and transmits a report on the findings of professional misconduct to the Supreme Court of Western Australia (Full Bench) with a recommendation that the practitioner's name be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008 (WA).,2. Pursuant to s 438(3)(a) of the Legal Profession Act 2008 (WA), the respondent's local practising certificate is suspended 14 days from the date of this order until the determination of the Supreme Court (Full Bench).,3. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the respondent must pay to the applicant its costs of the proceeding in terms of disbursements in the amount of $19,800 by 27 February 2015. |
Summary | The Tribunal found that Mr Gavin George Wells, a legal practitioner, is guilty of professional misconduct. The Tribunal required the parties to file submissions in relation to penalty and costs and directed, subject to any further order, that these issues were to be determined entirely on the documents.,The Tribunal determined that the appropriate professional disciplinary consequence of Mr Wells' unprofessional conduct and professional misconduct in the circumstances of this case, is to make and transmit a report on the finding to the Supreme Court (Full Bench) with a recommendation that Mr Wells' name be removed from the Roll of Practitioners.,The Tribunal also determined that Mr Wells' practising certificate should be suspended pending the determination of the Supreme Court (Full Bench).,Finally, the Tribunal ordered Mr Wells to pay costs in terms of the disbursements incurred by the Legal Profession Complaints Committee in the proceeding in the amount of $19,800 by 27 February 2015. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and WELLS [2014] WASAT 112 (S) MEMBER : JUSTICE J C CURTHOYS (PRESIDENT)
- MS F CHILD (MEMBER)
MR M HARFORD (SENIOR SESSIONAL MEMBER)
- Applicant
AND
GAVIN GEORGE WELLS
Respondent
Catchwords:
Vocational regulation - Legal practitioners - Professional misconduct - Penalty - Report on findings to Supreme Court (Full Bench) with a recommendation that name of practitioner be removed from Roll of Practitioners - Interim suspension from practice pending determination of Supreme Court (Full Bench) - Costs
Legislation:
Legal Practitioners (State Administrative Tribunal) Determination 2010
Legal Profession Act 2008 (WA), s 403, s 438, s 438(2)(a)
State Administrative Tribunal Act 2004 (WA), 87(1), s 87(2)
Result:
Report on Tribunal's findings made and transmitted to Supreme Court (Full Bench) with recommendation that the name of the practitioner be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008 (WA)
Suspension of practitioner's practising certificate pending the determination of the Supreme Court (Full Bench) with effect from seven days after publication of this decision
The practitioner to pay the Legal Profession Complaints Committee's costs in terms of disbursements in the amount of $19,800 by 27 February 2015
Summary of Tribunal's decision:
The Tribunal found that Mr Gavin George Wells, a legal practitioner, is guilty of professional misconduct. The Tribunal required the parties to file submissions in relation to penalty and costs and directed, subject to any further order, that these issues were to be determined entirely on the documents.
The Tribunal determined that the appropriate professional disciplinary consequence of Mr Wells' unprofessional conduct and professional misconduct in the circumstances of this case, is to make and transmit a report on the finding to the Supreme Court (Full Bench) with a recommendation that Mr Wells' name be removed from the Roll of Practitioners.
The Tribunal also determined that Mr Wells' practising certificate should be suspended pending the determination of the Supreme Court (Full Bench).
Finally, the Tribunal ordered Mr Wells to pay costs in terms of the disbursements incurred by the Legal Profession Complaints Committee in the proceeding in the amount of $19,800 by 27 February 2015.
Category: B
Representation:
Counsel:
Applicant : Mr AJ Musikanth and Ms P Le Miere
Respondent : In Person
Solicitors:
Applicant : Law Complaints Officer
Respondent : N/A
Case(s) referred to in decision(s):
A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253
A Solicitor v The Council of the Law Society of NSW (2004) 216 CLR 253
Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438
Barwick v Council of the Law Society of NSW [2004] NSWCA 32
Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54
Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62
Craig v The Medical Board of South Australia [2001] SASC 169
Grey v Harrison [1997] 2 VR 359
Law Society (NSW) v Foreman (1994) 34 NSWLR 408
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
Law Society of New South Wales v Walsh [1997] NSWCA 185
Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9
Legal Practitioners Conduct Board v Kerin [2006] SASC 393
Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37(S)
Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S)
Legal Profession Complaints Committee and in de Braekt [2013] WASAT 124
Legal Profession Complaints Committee and Leask [2010] WASAT 133
Legal Profession Complaints Committee and Wells [2014] WASAT 112
Legal Profession Complaints Committee v Brickhill [2013] WASC 369
Legal Profession Complaints Committee v Lashansky [2007] WASC 211
Legal Profession Complaints Committee v Love [2014] WASC 389
Legal Profession Complaints Committee v Masten [2011] WASC 71
Legal Profession Complaints Committee v Segler [2014] WASC 159
Legal Profession v O'Halloran [2013] WASC 430
LPCC v Pepe [2009] WASC 39
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S); (2005) 39 SR (WA) 47
New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279
New South Wales Bar Association v Evatt (1968) 117 CLR 177
NSW Bar Association v Hamman [1999] NSWCA 404
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Quinn v Law Institute of Victoria [2007] VSCA 122
Re A Practitioner (1984) 36 SASR 590
Re H (a Barrister) [1981] 1 WLR 1257
Re Maraj (a Legal Practitioner) (1995) 15 WAR 12
Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256
Stirling v Legal Services Commissioner [2013] VSCA 374
Introduction
1 On 2 September 2014, following a hearing over two days, the Tribunal found Mr Gavin George Wells, a legal practitioner, guilty of professional misconduct within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) (LP Act) – see Legal Profession Complaints Committee and Wells [2014] WASAT 112 (Wells).
2 The Tribunal found that Mr Wells engaged in professional misconduct in the following circumstances:
1) On or about 25 May 2013, Mr Wells purported to take instructions for and purported to prepare a will and an enduring power of attorney (EPA) for Mr David Lionel Coe (Mr Coe), with reckless disregard as to whether Mr Coe, a terminally ill patient:
(a) had capacity to make a will or an EPA; and/or
(b) was able to provide any, or any proper or adequate, instructions to the practitioner to make a will or an EPA; and/or
(c) was able to provide any, or any proper or adequate, instructions to the practitioner, in the manner in which the practitioner purported to obtain instructions from him, to make a will or grant an EPA
in circumstances where the practitioner knew or ought to have known that there was a real doubt as to Mr Coe's capacity to provide instructions.
2) On or about 25 May 2013, Mr Wells arranged the execution of, and witnessing, the will and EPA, in reckless disregard as to whether Mr Coe:
(a) had capacity to make the will and the EPA;
(b) had been able to provide any, or any proper or adequate, instructions to the practitioner, in the manner in which the practitioner purported to obtain instructions from him, to make the will and the EPA;
(c) had understood and approved the contents of the will and the EPA:
(d) had independently signed the will and the EPA
in circumstances where the practitioner knew or ought to have known that there was a real doubt as to Mr Coe's capacity to make the will or grant the EPA.
3) On or about 25 May 2013, Mr Wells engaged in conduct that fell below the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner, and which involved a substantial failure to reach or maintain a reasonable standard of competence and diligence, when he purported to take instructions for, prepared, arranged execution of, and witnessed, the will and EPA for Mr Coe in that:
(a) prior to taking instructions for the will, preparing, arranging the execution of, and witnessing, the will and the EPA, the practitioner did not obtain the opinion of Mr Coe's treating medical practitioner, or any other medical practitioner, as to whether, having regard to Mr Coe's medical condition, physical and mental state, and the medication he was taking, Mr Coe could provide any, or any adequate or proper, instructions to the practitioner for a will or an enduring power of attorney for Mr Coe, and if so, as to the manner in which Mr Coe could provide instructions to the practitioner for the will and the EPA;
(b) the practitioner failed to obtain instructions from Mr Coe as to the nature and extent of Mr Coe's property, and failed to satisfy himself that Mr Coe understood the nature and extent of his property;
(c) the practitioner failed to obtain instructions from Mr Coe as to whether there were any family members or other persons who might be expected to be remembered in the will and whether there were any persons who might have a claim in respect of Mr Coe's estate;
(d) the practitioner failed to read the will to Mr Coe before Mr Coe purported to sign it;
(e) the practitioner purported to take instructions for the will and the EPA whilst Mr Wayne McKenzie, who was a friend of Mr Coe, who was named in the will as the sole executor and the sole beneficiary of Mr Coe's estate, and who was named in the EPA as the sole donee of the power, and his mother, Nina McKenzie, who, together with Mr McKenzie, had provided the practitioner with information as to what was to be included in the will and the EPA, were present;
(f) the practitioner did not take any, or any adequate or proper, steps to satisfy himself that, in signing the will, Mr Coe understood the contents of the Will and the consequences of signing the will;
(g) the practitioner did not take any, or any adequate or proper, steps to satisfy himself that, in signing the EPA, Mr Coe understood the contents of the EPA and the consequences of signing the EPA;
(h) the practitioner failed to give any advice to Mr Coe as to the terms and effect of the EPA, the consequences of signing the EPA, and the options available for restricting the exercise of powers in the EPA;
(i) the practitioner failed to read the EPA to Mr Coe before Mr Coe purported to sign it;
(j) the practitioner failed to have any or due regard for Mr Coe's medical condition, physical and mental state, and the medication he was taking, and failed to ensure that, because of Mr Coe's medical condition, physical and mental state, and the medication he was taking, an independent party acted as a witness to Mr Coe purportedly signing the will and the EPA;
(k) the practitioner failed to make any file note of the circumstances surrounding his attendance on Mr Coe, when he knew or ought to have known that an issue may arise as to Mr Coe's capacity and/or ability to provide instructions to prepare the will and the EPA.
4 The Tribunal also determines that Mr Wells' practising certificate should be suspended pending the determination of the Supreme Court (Full Bench).
5 Finally, the Tribunal orders Mr Wells pay costs in terms of the disbursements incurred by the Legal Profession Complaints Committee (Committee) in the proceeding in the amount of $19,800 within four weeks.
The parties' submissions
6 In its submissions filed on 16 September 2014, the Committee sought the following orders:
1) An order that a report be transmitted to the Supreme Court (Full Bench) pursuant to s 438(2)(a) of the LP Act with a recommendation that Mr Wells be struck off the Roll of Practitioners.
2) An order that Mr Wells is suspended forthwith from practice until the determination of the Supreme Court (Full Bench).
3) An order for costs pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) for counsel's fees and other disbursements incurred in the proceedings in the amount of $19,800.
7 On 24 November 2014, Mr Wells filed his submissions. His submissions were approximately 26 pages long.
8 The Tribunal finds that Mr Wells completely misunderstood the purpose of the submissions. In particular, despite the findings of the Tribunal in Wells, 23 pages of his submissions were directed to why the Tribunal had erred in its findings. A further two pages of the submissions were directed to taking issue with two previous disciplinary matters, despite the fact that Mr Wells had consented to orders in those matters.
9 There is only one page of Mr Wells' submissions directed to penalty and costs.
10 It is unfortunate that Mr Wells' submissions were not directed to what really was in issue penalty and costs.
11 The Tribunal granted leave to make further written submissions as to costs after the penalty hearing concluded.
12 Mr Wells went beyond the grant of leave and made submissions as to penalty.
13 The Tribunal has not taken those submissions into account.
Legal framework and principles
14 The purposes of Pt 13 of the LP Actare, relevantly:
(a) to provide for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally; and
(b) to promote and enforce the professional standards, competence and honesty of the legal profession.
15 Section 438(2) - 438(4) of the LP Act states as follows:
(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 section 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.
16 The jurisdiction of the Tribunal is protective rather than punitive, and such protection runs to both the public and the profession (Re Maraj (a LegalPractitioner) (1995) 15 WAR 12 at 25 (Maraj)); Legal Profession Complaints Committee v Love [2014] WASC 389 (Love) at [19]; Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 (Foreman) at 440G - 441A B ; Legal Profession Complaints Committee and in de Braekt[2013] WASAT 124at [24] [26]; NSW Bar Association v Hamman [1999] NSWCA 404 (Hamman) at [21] and at [77]).
17 The appropriate sanction is to be considered at the time of the making of the sanction and not by reference to the date of the unprofessional acts (Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37(S) (A Legal Practitioner (S)) at [23]; Legal Profession Complaints Committee v Segler [2014] WASC 159 (Segler) at [7]; A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253 (A Solicitor [2004] NSW) at [15]; Love at [16]).
18 It is the practitioner's conduct that attracts any sanction (A Legal Practitioner (S) at [24]; Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 267 268 and 271 272; A Solicitor [2004] NSW).
19 As the Tribunal explained in A Legal Practitioner (S) at [24]:
… [I]n determining the appropriate penalty, care needs to be taken that the penalty reflects the matters with which the practitioner is charged and not other conduct including the defence of the action by the practitioner which is ultimately held to be unsuccessful: Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 (Smith) at 267 - 268 and 271 272[.]
Twelve matters for consideration
20 In determining an appropriate sanction, twelve matters may require consideration. Those matters are interrelated and are not mutually exclusive. The list of matters is not exhaustive. The twelve matters are:
1) any need to protect the public against further misconduct by the practitioner (Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S) (Amsden (S)) at [8]; Foremanat 440C; Hamman at [77]);
2) the need to protect the public through general deterrence of other practitioners from similar conduct (Johnson at [103]; Hamman at [77]);
3) the need to protect the public and maintain public confidence in the profession by reinforcing high professional standard and denouncing transgressions and thereby articulating the high standards expected of the profession (Amsden (S)) at [8]; Foreman at 444F; and Hamman at [77] and at [79]), such that, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication if its disapproval (Craig v The Medical Board of South Australia [2001] SASC 169 at [64]; Johnson at [103]);
4) in the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner (Johnson at [109]; Foreman at 445B 445G);
5) whether the practitioner has breached any:
(a) Act;
(b) Regulations;
(c) Guidelines or Code of Conduct, issued by the relevant professional body; and
(d) whether the practitioner has done so knowingly
6) whether the practitioner's conduct demonstrated incompetence, and if so, to what level;
7) whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future (Foreman at 442E 442G; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183; Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62 (A Solicitor [2002] NSW) at [80]; Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54 at 62 and 63);
8) the practitioner's disciplinary history (Legal Profession v O'Halloran [2013] WASC 430 at [93]);
9) whether or not the practitioner understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the practitioner, since a practitioner who fails to understand the significance and consequences of misconduct is a risk to the community (Law Society of New South Wales v Walsh [1997] NSWCA 185 per Beazley JJA (Walsh); Legal Profession Complaints Committee v Lashansky [2007] WASC 211(Lashansky)at [31] [52] and (second) at [35]; Amsden(S) at [8]; Foreman at 444E; Love at [9]);
10) the desirability of making available to the public any special skills possessed by the practitioner;
11) the practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of legal practice (Love at [59]); and
12) The Tribunal may consider any other matters relevant to the practitioner's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness (A Legal Practitioner (S) at [25]). In general, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive (Walsh).
General matters relating to sanctions
21 Where there is a choice of sanctions, the Tribunal will choose that sanction which maximises the protection of the public (Quinn v Law Institute of Victoria [2007] VSCA 122 at [31]).
22 The dominant purpose of the disciplinary regulation of the legal profession is the protection of the public by the maintenance of proper standards within the profession. Hence, the impact which an appropriate penalty would have upon a practitioner guilty of misconduct, and personal hardship to a practitioner, are necessarily secondary considerations (see Legal Profession Complaints Committee v Detata [2012] WASCA 2014 (Detata) at [47] and Legal Profession Complaints Committee v Masten [2011] WASC 71 at [29]; Legal Profession Complaints Committee and Leask [2010] WASAT 133 at [54]).
23 There are circumstances in which a 'global' approach to sanction, rather than the imposition of separate sanction for each unprofessional act, may be more appropriate in vocational disciplinary proceedings namely, where the facts of the case are so inextricably woven as to make it difficult to meet a clear standard of prescription (A Legal Practitioner(S) at [5]; Stirling v Legal Services Commissioner [2013] VSCA 374 at [72] [75]).
Removal from the Roll
24 The jurisdiction of the Tribunal to remove a practitioner from the Roll is exercised not for the purpose of punishing the practitioner concerned, but for the protection of the public and the reputation and standards of the legal profession: Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 at [43].
25 Where an order for removal from the Roll is contemplated, the ultimate question is whether the material demonstrates that the practitioner is not a fit and proper person to remain a legal practitioner: A Solicitor v The Council of the Law Society of NSW (2004) 216 CLR 253 at [15].
26 A practitioner is not a fit and proper person to be a registered practitioner and should be removed from the register where the unprofessional conduct is so serious that the practitioner is permanently or indefinitely unfit to practise (Howe (No 2) at [27]; Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 (Darveniza) at [38]; Love at [17] [18]; A Legal Practitioner(S) at [21] - [25]; Legal Profession Complaints Committee v Brickhill [2013] WASC 369 at [19] - [20] (Thomas JA, McMurdo P and White J agreeing); New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [26] [28]); Love at [17] [18].
27 Although serious dishonesty is an obvious example of where removal from the Roll is appropriate (Love at [18]), removal is not necessarily confined to circumstances involving findings of dishonesty.
28 In Lashansky at [36], the Full Court stated:
… Hope JA observed, [in Law Society of New South Wales v Moulton [1981] 2 NSWLR 736] the ignorance which the practitioner displayed was not ignorance of some esoteric or difficult corner of the law, but was an ignorance of general principles applicable to common activities of a solicitor (at 741). Hope JA concluded that '[s]uch an unawareness of and lack of care about the most elementary propositions of law concerning the responsibility he had taken on and the standards required of solicitors are themselves sufficient to justify the protection of the public by his removal from the roll' (at 743, Reynolds JA agreeing, and see Hutley JA at 759).
Suspension
29 Suspension is a less serious result and differs from removal from the Roll because suspension is for a specified limited period and the practitioner has a preserved right to resume practice without any further onus upon them to prove that they are a fit and proper person to practice (A Legal Practitioner (S) at [26]; LPCC v Pepe [2009] WASC 39 at [12])
30 The proper use of suspension is in cases where the practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he/she lacks the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a practitioner (A Legal Practitioner(S) at [26]; Re A Practitioner(1984) 36 SASR 590, at 593 per King CJ). That is, suspension is suitable where the Tribunal is satisfied that, upon completion of the period of suspension, the practitioner will be fit to resume practice (A Legal Practitioner (S) at [27]).
1. Is there a need to protect the public against further misconduct by Mr Wells?
31 A will and an EPA are important documents that impact the estate of a testator and a donor.
32 A will is intended to express the intentions of the testator in relation to his/her estate. In the absence of a will, the law provides for the distribution of the estate. The freedom to make a will is one of the fundamental freedoms of a testator (Grey v Harrison [1997] 2 VR 359 at 366 (Callaway JJA)). That freedom is not lightly to be interfered with. The courts are zealous to ensure that a testator has capacity so as to ensure that the will is a true expression of a person's wishes.
33 An EPA gives great power to a donee to deal with the affairs of a donor. Courts and tribunals similarly ensure that the EPA is a true expression of a donor's wishes.
34 A small estate does not lessen the obligations of a practitioner. It requires the careful exercise of a practitioner's professional skills and a proper discharge of their duties.
35 Where capacity is in doubt when a will and/or an EPA is executed, unless those doubts are resolved, there is a risk that beneficiaries or potential beneficiaries and others, will be drawn into conflict with one another, personally and/or in litigation. If it is necessary to prove a will in solemn form, the potential for expensive legal costs is increased.
36 Mr Wells notes that, since September 2005, he has made many visits to hospices and palliative care wards in hospitals to take instructions from the terminally ill.
37 The Tribunal's findings make it clear that the public needs to be protected against further misconduct by Mr Wells. Mr Wells failed to recognise a practitioner's basic duties and he has acted with reckless disregard.
38 Given Mr Coe's obvious condition and Mr Wells' doubts about his capacity, and the availability of medical advice about this question at the time of the execution of the will and the EPA, the Tribunal cannot have any confidence that Mr Wells would seek medical advice in any circumstances in the future.
39 People in hospitals and hospices are especially vulnerable. When doubts arise about their capacity, those doubts must be resolved by seeking medical advice to ensure that their will, or EPA, truly represents their wishes.
2. Is there a need to protect the public through general deterrence of other practitioners?
40 The reasons generally expressed in relation to the need to protect the public from further misconduct by Mr Wells also apply to the need to protect the public through general deterrence of other practitioners from similar conduct.
3. Is there a need to protect the public by reinforcing high professional standards and denouncing transgressions?
41 People making wills and the donors of EPAs need to be able to place confidence in practitioners. Given the importance of wills and EPAs and the impact they have on potential beneficiaries and donees, it is important that people making wills and EPAs are confident that their instructions are followed and that such documents will not be executed under the supervision of practitioners unless any doubts about capacity are resolved.
42 Practitioners need to understand the obligations placed on them in relation to wills and EPAs and the serious consequences of a failure to comply with their duties so that the public can have faith in practitioners.
4. Dishonesty?
43 No issues of dishonesty arise in this case.
5. Breach of an Act, Regulations, Guidelines or Code of Conduct
44 No issues of a failure to comply with an Act, Regulations, Guidelines or Code of Conduct arise in this case.
6. Incompetence
45 The findings made by the Tribunal evidence significant incompetence on Mr Wells' part. As the Tribunal's findings in Wells made clear, Mr Wells has demonstrated significant incompetence in every aspect of the preparation and execution of the will and EPA and a complete failure to understand his basic obligations to Mr Coe.
7. Was the incident isolated?
46 Mr Wells' conduct in relation to the will and the EPA was an isolated incident. However, in light of his disciplinary history, it raises serious questions about his overall competence.
8. Mr Wells' disciplinary history
47 Mr Wells' disciplinary history is set out in the Committee's submissions, which we have incorporated into these reasons.
VR 229/2010
48 This matter involved conduct in relation to a complaint brought on two grounds.
49 Ground A related to the practitioner having:
(a) entered an appearance for a Ms F when he knew that Ms F was a person under a disability and required a guardian ad litem to be appointed to act for her, and when he knew that no guardian ad litem had been appointed to act for her;
b) accepted instructions to act for Ms F and other persons in two sets of Supreme Court proceedings, and having acted upon those instructions, when those instructions were beyond his competence and capacity;
(c) acted in an incompetent manner when appearing for Ms F and the other persons on a mention; and
(d) permitted Ms F, who was to his knowledge a person under a disability, to sign a letter on his letterhead addressed to the Supreme Court and to deliver that letter to the Supreme Court.
50 Ground B related to the practitioner having written and sent a letter, dated 29 December 2008, to the Committee in which the practitioner made highly derogatory remarks regarding the Chief Justice of Western Australia (the details of which were provided to the Tribunal).
VR 12/2011
51 This matter related to the practitioner's failure to act competently and diligently, between 5 September 2008 and 14 January 2009, in the context of District Court proceedings in which he acted for the plaintiff, by:
(a) taking from late August to December 2008 to read the file of the plaintiffs former solicitor;
(b) failing to ascertain, between 4 September and December 2008, and despite requests from the defendant's solicitors to provide them with copies of certain of the plaintiff's discovered documents, that he did not have in his possession any of the plaintiff's discovered documents and failing to make enquiries as to their whereabouts;
(c) failing, between 5 September 2008 and 7 January 2009, to prepare a draft of the plaintiff's tender list and send it to counsel for settling, notwithstanding counsel's request on 5 September 2008 for him to do so;
(d) failing, between 5 September 2008 and 7 January 2009, to prepare Royal's witness statements in draft and submit them to counsel for settling;
(e) failing, between 2 October 2008 and 7 January 2009, to prepare, file or serve fresh Papers for the Judge, incorporating a copy of the amended defence, notwithstanding counsel's requests on 9 October and 3 November 2008 for him to do so;
(f) failing or neglecting, between late August 2008 and 7 January 2009, to file or serve the plaintiff's submissions as required by Rule 45H and as requested by the defendant's solicitors by letter dated 9 October 2008;
(g) failing or neglecting, between late August and 15 October 2008, to ascertain that he did not have copies of certain discovered documents, which had previously been provided to the plaintiff's former solicitors by the defendant's solicitors, and failed or neglected to request further copies of those documents from the defendant's solicitors;
(h) failing or neglecting, between 28 December 2008 and 7 January 2009, to prepare an amended witness statement despite counsel requesting him to do so on 5 December 2008 and despite the fact that he told the witness on 28 December 2008 that he would.
52 As a result of the findings made in VR 229/2010 and VR 12/2011, consent orders were made by the Tribunal on 10 August 2011.
53 Among them were orders to the following effect:
(a) the practitioner's practising certificate and any practising certificate to be granted be subject to the following specified conditions 30 days from the making of the order and continuing;
(b) the practitioner not accept instructions that relate to or are or are likely to result in proceedings in the District Court of Western Australia, the Supreme Court of Western Australia (except in noncontentious probate matters), the Family Court of Australia and Western Australia (except those matters that relate to the making of consent orders) and the Federal Court of Australia;
(c) the practitioner not appear as counsel or instructing solicitor in proceedings in the District Court of Western Australia, the Supreme Court of Western Australia, the Family Court of Australia and Western Australia and the Federal Court of Australia;
(d) the practitioner be reprimanded;
(e) the practitioner pay fines to the Legal Practice Board in the sum of $1,000 in respect of each matter; and
(f) the practitioner pay the Committee's costs fixed in the sum of $5,000 in respect of each matter.
54 The orders made in both proceedings also record the following:
The purpose of penalty in disciplinary proceedings is to protect the public rather than punish the practitioner. The Committee is of the view that the public will be protected from a practitioner accepting work in an area in which he has shown incompetence by having that practitioner prohibited from accepting instructions to do work of a similar nature; and
The Committee considers and the practitioner has agreed that the practitioner should not be accepting instruction involving superior courts.
55 On 15 November 2012, the following further condition was added to Mr Wells' practising certificate by the Professional Affairs Committee of the Legal Practice Board:
The practitioner is not to institute, continue or defend any civil litigation in any jurisdiction other than uncontested applications for divorce and consent Form 11 issues.
56 Mr Wells, some two years ago, attended continuing professional development seminars with the contents of these seminars influencing his behaviour. His subsequent misconduct is serious. This suggests either a continued failure by the practitioner to appreciate the standards of conduct required by practitioners or a continuing unwillingness or an inability to meet those standards: Legal Practitioners Conduct Board v Kerin [2006] SASC 393 at [47] [49]; (2006) LSJS 271.
57 Mr Wells' previous disciplinary history demonstrates incompetence, delay and very poor judgment. This case demonstrates continuing incompetence and lack of judgment in a different area.
9. Whether or not Mr Wells understands the error of his ways, including an assessment of the any remorse and insight (or a lack thereof) shown by Mr Wells
58 The practitioner's conduct of the defence and the veracity and candour of his testimony will often be the best evidence as to whether any mitigating circumstances, including remorse, reform, character change and subsequent good deeds, are to be accepted. (A Legal Practitioner(S) at [24]; Barwick v Council of the Law Society of NSW [2004] NSWCA 32 at [108] - [109]).
59 In A Solicitor NSW, the New South Wales Court of Appeal stated at [80]:
4. In New South Wales Bar Association v Maddocks [1998] NSWCA 102 Court of Appeal, 23 August 1988, a case concerning a barrister’s alleged professional misconduct, Kirby P said that it was more likely that the Court would withhold disbarment or suspension where the practitioner had admitted guilt. His Honour said:
'This is not simply because such admission may save time and avoid unnecessary controversy. It is because a barrister is more likely to be accepted by judges and fellow practitioners if, despite lapses, he or she acknowledges frankly a recognition of the errors that led to them. Denial which is not accepted, and contest which fails, may reinforce the conclusion of obtuseness or lack of self insight which require action by the Court to protect the public. The community deals with barristers as participants in its institutional arrangements for the administration of justice and the enforcement of the law. That is why very high standards are required by the law and enforced by the Court.'
61 If the defence advanced was scandalous, or without merit, there will be an aggravating factor to which more weight can be attached in determining the sanction to be applied; Re H (a Barrister) [1981] 1 WLR 1257, 1260 - 1261.
62 There are cost consequences of Mr Wells requiring the applicant to prove that his conduct was unprofessional, but they are separate from any sanction and cannot be used to reduce any appropriate sanction; Detata at [41]).
63 Mr Wells has not shown any remorse. Despite agreeing with the Tribunal's findings that:
a) Mr Coe's condition when Mr Wells saw him raised obvious questions as to his capacity (Wells at [89]).
b) Mr Wells had doubts about Mr Coe's capacity (Wells at [90])
c) The situation plainly cried out and for a medical opinion (Wells at [91]);
d) Mr Wells had been informed by reception [at the hospice] that Mr Coe's treating doctor was available (Wells at [92]);
Mr Wells still proceeded with the supervision of the execution and witnessing of a will and an EPA.
64 Those concessions alone would have been sufficient to find Mr Wells guilty of professional misconduct. He completely lacks any insight into his actions.
65 Rather than acknowledge his failings Mr Wells has sought to persist in his completely unwarranted attack on Dr Findlay.
66 Mr Wells did not need to submit that Dr Findlay had lied. It would have been sufficient to have argued that her recollection was faulty.
67 Our reasons noted that Mr Wells made the serious allegation that Dr Findlay's evidence was false without any basis for that allegation. Despite being given the opportunity to withdraw the allegation he persisted in it. The Tribunal also noted in the reasons that it had no hesitation in accepting Dr Findlay's evidence (see Legal Profession Complaints Committee and Wells [2014] WASAT 112 (Wells) at [97] and at [99]).
68 Statements made in courts and tribunals provide an absolute privilege against defamation proceedings. Coextensive with this right is the obligation on a practitioner not to advance allegations of perjury or other serious misconduct, unless there is a basis for the allegations, and such allegations are necessary for the conduct of the case. Mr Wells' allegations were without any basis and were not necessary for the conduct of his case.
69 In light of the Tribunal's findings, one might have expected Mr Wells to address the consequences of those findings in his submissions on penalty and costs. As the Tribunal has noted, Mr Wells concentrated his submissions not on penalty and costs, but on disputing the Tribunal's findings against him. In particular, following an analysis of Dr Findlay's evidence, Mr Wells submits:
131. Two sayings come to mind.
132. The first saying is from scripture '… For false christs and false prophets will rise and show great signs and wonders to deceive, if possible, even the elect. Matthew 34:24) (NKJV)
133. The second saying is 'a conman is a conman precisely because he doesn't look or sound like a conman'.
70 Further, Mr Wells' submissions state 'I have contested these proceedings because they are based on lies' (Mr Wells' submissions at [212]).
71 During oral submissions Mr Wells persisted in alleging perjury, even going so far as to state that the Legal Profession Complaints Committee and the Tribunal were complicit in perjury. As noted, Mr Wells only needed to contend that Dr Findlay was mistaken in her recollection. Why he persisted and persists in alleging perjury remains unexplained. This line of defence is scandalous.
72 Mr Wells lack of remorse indicates that, if he continues in practice, he will pose a risk to the public.
10. Are there any special skills possessed of Mr Wells?
73 There is no evidence that Mr Wells has any special skills which would support his continuation in legal practice.
11. The practitioner's personal circumstances
74 Although Mr Wells referred to his own health and financial problems and the health problems of his wife in the penalty hearing, Mr Wells led no evidence as to his personal circumstances at the time of the conduct, nor at the penalty hearing, that the Tribunal could give any weight to or which might be considered mitigatory of his conduct.
12. Are there any other matters related to Mr Wells' fitness to practise?
75 Mr Wells led no evidence of any other matters related to his fitness to practise.
Costs
76 The Committee sought an order for the payment by the practitioner of counsel's fees and other disbursements incurred in the proceeding in the amount of $19,800. The Committee did not seek a costs order in relation to its solicitor's fees.
77 Although s 87(1) of the SAT Act contemplates that, generally, parties bear their own costs in proceedings before the Tribunal, s 87(2) of the SAT Act confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party.
78 The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in vocational disciplinary proceedings is that a successful application by a vocational regulatory body, such as the Committee, will usually result in an order for costs being made in favour of the vocational regulatory body: Medical Board of WesternAustralia and Roberman [2005] WASAT 81 (S); (2005) 39 SR (WA) 47 (Roberman) at [30] referred to with approval in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [35].
79 The policy basis behind this practice is that vocational regulatory bodies 'perform a function which promotes the public interest, and usually with limited resources' and '[t]he financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented': Roberman at [30].
80 There is no reason why, in the circumstances of this case, the Tribunal should depart from its usual practice in relation to costs in vocational disciplinary proceedings. An order for costs in favour of the Committee should therefore be made.
81 The Committee presented a detailed schedule of disbursements and copies of accounts. The time incurred by Counsel for the Committee was reasonable and necessary to properly prepare and present the case, which occupied two hearing days, and the other disbursements incurred by the Committee are also reasonable. Assessed overall, counsel's fees sought by the Committee are reasonable and an order should be made for the payment by Mr Wells of the Committee's costs in the amount sought.
Conclusion
82 The Tribunal has carefully considered the Committee's submissions and Mr Wells' submissions, such as they were.
83 The Tribunal considered suspension but we are satisfied that Mr Wells' conduct demonstrates that he is permanently unfit to practise.
84 We have concluded that it is appropriate that a report be made to the Full Court of the Supreme Court of Western Australia.
85 Taking into account matters set out above, it is regrettable that after 43 years of practice, Mr Wells' career in law should come to this unfortunate end.
Orders
1. Pursuant to s 438(4)(b) the Tribunal makes and transmits a report on the findings of professional misconduct to the Supreme Court of Western Australia (Full Bench) with a recommendation that the practitioner's name be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008 (WA).
2. Pursuant to s 438(3)(a) of the Legal Profession Act 2008 (WA), the respondent's local practising certificate is suspended 14 days from the date of this order until the determination of the Supreme Court (Full Bench).
3. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the respondent must pay to the applicant its costs of the proceeding in terms of disbursements in the amount of $19,800 by 27 February 2015.
I certify that this and the preceding [85] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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